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B.C. judge rules federal law on firearms offence to be unconstitutional

VANCOUVER - A British Columbia judge has concluded the federal government's mandatory-minimum sentence for the possession of a loaded and prohibited firearm is arbitrary and fundamentally unjust and has the potential to violate a person's protection against cruel and unusual punishment.

The ruling is the latest across the country from judges who believe the law forcing them to impose a three-year minimum prison sentence in all such cases violates the charter.

It comes as the Ontario Court of Appeal prepares to hear several separate cases together next month on the topic in an effort to come up with a uniform ruling.

The B.C. ruling was handed down by provincial court Judge James Bahen on Thursday as he sentenced a man who'd been arrested with a loaded Glock semi-automatic handgun in a Louis Vuitton bag in November 2010.

Court heard police watched as Glenn Harley Tetsuji Sheck left his house, drove to another house briefly and then entered a crowded restaurant with the bag and the gun.

In his ruling, the judge noted Sheck was 29 years old at the time and had no criminal record. He was a father of four and made child support payments to the mother of three children. He is an apprentice electrician in a family business and is a member of the Shuswap First Nation.

Bahen found that in B.C., the sentence for such a crime would have been 18 months to two and a half years before the Conservative government introduced the three-year minimum in 2008.

"I ... have concluded that by any estimation of the range of sentence for this offence, the imposition of the current mandatory minimum sentence of three years ... can be viewed as harsh, or excessive, or even unfit for this individual applicant," Bahen wrote.

Bahen said the federal law breaches Section 7 of the Charter of Rights and Freedoms, one of the sections that establishes the fundamental legal rights of Canadians.

"This breach is caused by the arbitrary gap between the maximum sentence of one year in summary proceedings and the minimum three years sentence when proceeding by indictment."

Summary offences are generally less serious, while indictable offences are considered more serious and include break and enter, theft over $5,000, aggravated sexual assault as well as murder.

Bahen also ruled the general application of the mandatory-minimum sentence in "reasonable hypothetical circumstances" could potentially violate Section 12 of the charter by imposing cruel and unusual punishment.

However, the judge decided not to strike down the law in Sheck's sentencing. Instead, he has given the Crown an opportunity to make further presentations to the court on the matter.

"Crown will be carefully reviewing the decision in the coming days to assess the appropriate next step," said Neil MacKenzie, a spokesman for B.C's criminal justice branch.

MacKenzie said the Crown can still have the sentencing provisions upheld under Section 1 of the charter, which allows laws to restrict charter rights "so long as those limits can be shown to be reasonable in a free and democratic society."

"We're very pleased with the outcome," said Elizabeth Lewis, one of Sheck's defence lawyers. "We think that it's a very solid and well reasoned decision."

She said the issue is not over. She said the burden has now shifted to the Crown to call evidence under Section 1 to see whether "the otherwise unconstitutional measure can be salvaged as a reasonable limit" to charter rights.

Ontario's Court of Appeal is set in February to convene a five-judge panel to rule on mandatory minimum sentences for gun crimes.

After differing rulings, the panel chose to hear six of the cases at the same time in an effort to offer a uniform ruling.

Among the six cases, the mandatory minimums were upheld most of the time, but the law was struck down in the case of Leroy Smickle.

The judge found the "very foolish'' Smickle was alone in his boxers in his cousin's apartment posing with a loaded handgun while taking pictures of himself to post on his Facebook page.

Unbeknownst to him, members of the Toronto police Emergency Task Force were amassing outside to execute a search warrant in relation to Smickle's cousin, who they believed had illegal firearms. Smickle was caught red-handed.

Ontario Superior Court Judge Anne Molloy convicted Smickle of possessing a loaded illegal gun, but found that sending the first-time offender to prison for three years was cruel and unusual punishment.

She struck down the mandatory minimum, declaring it unconstitutional.

The judge hearing another of the cases, that of Hussein Nur, did not find the three-year mandatory minimum inappropriate because he would have sentenced Nur to 2.5 years anyway. But in his ruling, the judge warned the law was vulnerable to being struck down.

A spokesman for Justice Minister Rob Nicholson declined to comment on whether the government plans any action on the law.

“Many of these penalties have been found constitutional by the courts, including most recently our efforts to crack down on drive-by shootings," said the e-mailed statement.

"As this specific case remains within the appeal period, we cannot comment further.”


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