B.C. judge rules federal law unconstitutionalThursday, January 03, 2013 by: SooToday.com Staff
VANCOUVER - The federal government's mandatory-minimum sentence of three years imprisonment for the possession of a loaded and prohibited firearm is unconstitutional, says a provincial court judge in Surrey, B.C.
The ruling was handed down by Judge James Bahen Thursday and focuses on the sentencing of Glenn Harley Tetsuji Sheck.
The apprentice electrician whom the judge says has no criminal record was 29 years old when he was arrested by police and found with a loaded Glock 9-millimetre semi-automatic handgun outside a Surrey restaurant.
Bahen said the federal law breaches Section 7 of the Charter of Rights and Freedoms, one of the sections that establish 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," said Bahen in his written ruling.
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.
That means, according to the charter, that "governments cannot treat individuals or punish them in an excessively harsh manner."
However, the judge decided not to rule the law to be of no force and effect in Sheck's sentencing, and has given the Crown and 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.
That section states that "charter rights can be limited by other laws 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, and 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.
Lewis said the case has been adjourned.