CALGARY -- Ronald Smith cannot be put to death anytime soon, says his lawyer, after a Montana judge on Thursday declared the state's method of injection as unconstitutional.

The only Canadian on death row in the US, who will celebrate his 55th birthday Friday, received a small victory in his battle for his life following the decision by Judge Jeffrey Sherlock.

"Basically he decided as a matter of law, that Montana's lethal injection protocol was not constitutional, so what that will actually mean is they will have to go back and make a new protocol for executing people," Smith's lawyer Don Vernay said.

Vernay said while it's a decision in Smith's favour, it doesn't impact his case too much right now.

"In the event things were to go against us, there couldn't be an execution for the foreseeable future," he said.

In 2008, the American Civil Liberties Association launched a challenge against Montana's lethal injection protocol.

"The drug is just one facet of it -- it also has to do with the people who are qualified to administer it, the facility they have, it's a lot more involved than just the drug," Vernay said.

Smith was sentenced to death in 1983 for shooting to death cousins Harvey Mad Man Jr. and Thomas Running Rabbit.

The ultimate decision on whether Smith will be granted clemency rests with Montana Gov. Brian Schweitzer.

In a letter to the governor made public in May, the Montana Board of Pardons and Parole recommended unanimously against Smith's final clemency bid following a May 2 hearing.