BC judge disagrees with federal law

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.

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.

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