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.”
Also on HuffPost:
15 Things Critics Fear In The Tory Crime Bill
Opposition parties, professionals working within the corrections and justice systems, the Canadian Bar Association and various other interest groups have raised wide-ranging concerns about the <a href="http://www.huffingtonpost.ca/news/omnibus-crime-bill" target="_hplink">omnibus crime bill</a>. Here is an overview of some of their objections. (CP/Alamy)
15. Harsher Sentences For Young Offenders
Changes to the Youth Criminal Justice Act will impose tougher sentences for violent and repeat young offenders, make it easier to keep such offenders in custody prior to trial and expand the definition of what is considered a "violent offence" to include "creating a substantial likelihood of causing bodily harm" rather than just causing, attempting to cause or threatening to cause bodily harm. The new legislation will also require the Crown to consider adult sentences for offenders convicted of "serious violent offences" and require judges to consider lifting the publication ban on names of offenders convicted of "violent offences" even when they have been given youth sentences. Some of the concerns around these provisions raised by some of the professionals who work with young offenders include: (Alamy)
14. Young Offenders - Naming Names
The publication of names of some young offenders will unjustly stigmatize them for life. Quebec has asked that provinces be allowed to opt out of this provision. (Getty)
13. Young Offenders - Stiffer Sentences
Stiffer, longer sentences will turn young offenders into hardened criminals and undermine any potential for rehabilitation. (Alamy)
12. Young Offenders - Minorities Take The Brunt
As with other parts of the crime bill, critics says harsher sentencing rules and increased emphasis on incarceration will <a href="http://www.huffingtonpost.ca/2012/02/20/bill-c-10-omnibus-crime_n_1289536.html?ref=omnibus-crime-bill" target="_hplink">disproportionately affect aboriginal</a> and black Canadians, who are already over-represented in the criminal justice system. (Alamy)
11. Young Offenders - Forget Rehabilitation
The changes shift the emphasis of the Act from rehabilitation to "protection of society," which critics say will put the focus on punishing young offenders rather than steering them away from a life of crime. <a href="http://www.huffingtonpost.ca/2011/11/22/crime-bill-quebec-canada_n_1107717.html?ref=omnibus-crime-bill" target="_hplink">Quebec, in particular, which prides itself on the success of the rehabilitative aspects of its youth justice system, has argued for stronger language prioritizing rehabilitation</a>. (Alamy)
10. Fewer Conditional Sentences
The legislation will eliminate conditional sentences, those served in the community or under house arrest, for a range of crimes, including sexual assault, manslaughter, arson, drug trafficking, kidnapping and fraud or theft over $5,000. It will also eliminate double credit for time already served. Critics say these changes will: (Getty)
9. Fewer Conditional Sentences - Spike Costs
Cost the federal and provincial justice and corrections systems millions of additional dollars a year. The parliamentary budget officer, <a href="http://www.huffingtonpost.ca/2012/02/28/omnibus-crime-bill-costs-conditional-sentences_n_1306528.html?ref=omnibus-crime-bill" target="_hplink">Kevin Page, has estimated that the average cost per offender will rise from approximately $2,600 to $41,000</a> as a consequence of the elimination of conditional sentences. (Alamy)
8. Fewer Conditional Sentences - More Trials And Hearings
- Lead to more trials as those accused of crimes will be less likely to plead guilty if they know there is no chance they will get a conditional sentence and will be more likely to take their chances on a trial. Some have predicted this will lead to greater backlogs in an already backlogged court system. - Result in more parole hearings. Page's analysis predicted that with the increase in the number of incarcerations, there will be more offenders coming up for parole, which will increase costs for federal and provincial parole review boards. A single review by the Parole Board of Canada costs an estimated $4,289, Page estimated. (Alamy)
7. Mandatory Minimums
<a href="http://www.huffingtonpost.ca/2012/02/22/bill-c-10-drugs-mandatory-minimums-omnibus_n_1292894.html?ref=omnibus-crime-bill" target="_hplink">By far the most criticized aspect of the bill is the introduction of mandatory jail sentences for certain crimes, including drug trafficking, sex crimes, child exploitation and some violent offences</a>. Opponents of the measures have argued that this type of sentencing has been tried in other jurisdictions, most notably in the U.S., and has created more problems than it has solved. Critics say that coupled with other changes in the bill, such as increases in the maximum sentences handed down to some drug offenders and sexual predators and elimination of conditional sentences in some cases, mandatory minimums will burden Canada's prison and court systems in ways that are unfeasible, untenable and have little benefit. In particular, they argue that mandatory minimum sentences will: (Jupiter Images)
6. Mandatory Minimums - Higher Costs
Increase the costs of prosecuting and incarcerating offenders and leave fewer funds for rehabilitation programs. (Alamy)
5. Mandatory Minimums - Overcrowding
Lead to overcrowding in prisons. (Alamy)
4. Mandatory Minimums - Make Judges Less Powerful
- Remove judges' discretion to tailor sentences to the specifics of a particular case and offender and force them to apply blanket, one-size-fits-all sentences regardless of circumstances - Limit the use of alternate sentencing measures of the type currently applied to aboriginal offenders. (Alamy)
3. Mandatory Minimums - Over-Punish Drug Offenders
<a href="http://www.huffingtonpost.ca/2012/03/02/omnibus-crime-bill-pierre-claude-nolin_n_1316481.html?ref=omnibus-crime-bill" target="_hplink">Disproportionately punish small-time drug offenders and have limited effect on the drug producers, organized crime bosses and serious drug traffickers</a> the government says it wants to target. (Alamy)
2. Mandatory Minimums - What's The Point?
Have little rehabilitative effect on offenders and rather leave them more, not less, likely to re-offend. <a href="http://www.huffingtonpost.ca/2011/11/27/tough-on-crime-conservatives-doubt-tough-sentences_n_1115012.html?ref=omnibus-crime-bill">Critics point to numerous studies showing harsher incarceration laws do not have a deterrent effect on criminals or lower crime rates</a>. (Alamy)
1. Mandatory Minimums - What Charter?
Violate provisions of the Charter of Rights and Freedoms and open up the government to legal challenges on grounds that the sentencing rules violate certain rights that offenders have under the Charter, such as the right to liberty, the right not to be subjected to cruel and unusual punishment and the right to equal protection and benefit of the law. (Alamy)