POLITICS

Manitoba judge calls mandatory minimum penalty for shooter "excessive and harsh"

10/02/2013 04:07 EDT | Updated 12/02/2013 05:12 EST
BRANDON, Man. - A Manitoba judge has slammed the federal government, ruling a mandatory four-year prison sentence for a bullying victim who lashed out against his abusers with a gun is "excessive" and "harsh."

Court of Queen's Bench Justice John Menzies ruled Wednesday the mandatory minimum sentence for gun crimes shouldn't apply in the case of Bryce McMillan of Carberry, Man.

The 21-year-old man pleaded guilty to reckless use of a firearm when he admitted to shooting six rounds from a .22-calibre rifle into the home of a person he claims had been tormenting him.

Nobody was hurt in the September 2011 shooting, although two people were inside the residence at the time.

Sentencing McMillan to the mandatory four years on top of the 18 months of house arrest he has already served would violate the Charter of Rights and Freedoms as a "cruel and unusual punishment," Menzies said.

"A four-year term would clearly place the accused in the heart of the federal penitentiary system normally reserved for hardened criminals. To say that the conditions of a federal penitentiary would be harsh for someone of the accused's background is an understatement," Menzies said.

"In considering the facts of this case and the background of this accused, I have little hesitation in coming to the conclusion that a four-year sentence would be excessive and harsh."

Instead, he sentenced McMillan to one year in jail and two years of supervised probation.

While McMillan has been convicted of a "very serious offence," Menzie said the facts of the case have to be taken into consideration. McMillan struggled after losing his best friend in a car accident when he was 16 and began acting out, Menzies said.

After that, he became the target of bullies. Menzies said McMillan was verbally and physically taunted for at least two years. Graffiti appeared on the wall of the post office of the small town at least three times calling him a loser among other profanity, Menzies said.

Sometimes, Menzies said the graffiti would stay up for long periods of time.

"The grandparents claim they offered to remove the graffiti at their own expense which ... was rejected," Menzies said.

Mandatory minimum sentences for gun crimes are intended to address the scourge of drive-by shootings and gang turf wars, not to put a remorseful bullying victim behind bars with hardened criminals, Menzies said.

"The means used by Parliament to address the objective of gun violence more than minimally impairs the right to be free from cruel and unusual punishment," he wrote in his 33-page ruling.

"The provisions of the code do not give the sentencing court the flexibility to take into account the imposition of extremely stringent terms of judicial interim release which effectively operate as punishment before conviction."

Mandatory minimum sentences give an unfair advantage to the Crown by making it more likely for the accused to plead guilty to a lesser offence for fear of risking a long prison sentence, Menzies said.

There is also more reluctance on the part of the court to convict an accused facing a lengthy sentence, he said.

Putting first offenders in prison alongside more serious criminals also increases the chances of recidivism and makes it more likely the inmate will join a gang just to survive the sentence, Menzies added.

"And in cases such as the present one, there is the danger of reversing all the progress made by an accused in seeking out treatment while waiting his trial by sending him to a federal penitentiary," he said.

Outside court, defence lawyer Robert Harrison said he's worried the case may not be over.

"I'm obviously very pleased, I think it's the right decision," he said. "I'm afraid that it may be appealed to the Manitoba Court of Appeal. I think that's probably likely because it's a decision you don't hear every day. It's rare in the province."

It's not the first time a key plank of the Conservative government's law-and-order agenda has been challenged. Since the Tories' omnibus crime bill passed last year, several judges from Ontario and British Columbia have ruled the mandatory minimum punishment for a gun crime is unconstitutional.

The Ontario Court of Appeal is currently considering the constitutionality of minimum sentences for gun crimes.

It convened a special five-judge panel in February to hear six such cases at the same time. In Quebec, the provincial bar association launched a legal challenge seeking to strike down sections of the bill involving mandatory minimums.

Calling McMillan's crime an "ill-conceived reaction to years of bullying and public humiliation," Menzies said the man has shown true remorse for his actions and has undergone treatment.

"While a sentence of incarceration is called for to denounce this type of behaviour and deter others, any period of incarceration should not be so long as to destroy his mental health or reverse the positive steps the accused has taken," Menzies wrote.

"A criminal sentence should be punitive but not vengeful."

McMillan's mother, Darcy McMillan, said she was happy with the sentence.

"I'm just glad it's all over with," she said outside court. "It was a relief."

— By Chinta Puxley in Winnipeg with files from CKLQ's Clay Young