Bullet holes are visible in the front window of a Simcoe Street home at the scene of a shooting in Carberry in 2011.
In a precedent-setting move, a Brandon judge has struck down a federally legislated minimum sentence as unconstitutional.
Justice John Menzies spared a gunman who fired bullets into a Carberry home from a four-year prison term, and sent him to jail for a year instead.
The judge said he took into account that the man had lashed out after being bullied.
"The four-year minimum sentence is in fact a violation of the Canadian Charter of Rights and Freedoms," Menzies said as he delivered his decision in Brandon Court of Queen’s Bench on Wednesday afternoon.
His decision is expected to be binding on provincial court judges, although the Crown has yet to decide if it will take the case to the Manitoba Court of Appeal.
Although 19 years old at the time of the shooting, the Brandon Sun has chosen not to name the offender so it can refer to a crime he committed as a youth — a crime said to have led to the bullying that ultimately led to the shooting.
The shooter says he snapped after years of torment by community members.
Residents harassed him after he entered a Carberry home in October 2009 and stole a couple of pairs of women’s underwear.
In July 2010, he received an 18-month conditional discharge with 60 hours of community service work for break and enter.
A psychologist has blamed the bullying that followed for the shooting.
Already depressed due to the death of a friend in 2007, the offender said he’d fired the shots in despair over the harassment. Graffiti that called him a "loser" and "panty thief for life" had been spray-painted on the wall of the town post office.
In the early morning of Sept. 5, 2011, he fired six shots into a Carberry home to put a "scare" into the man he believed responsible. Three shots pierced the living room window just above a couch where the homeowner and a young woman lay, but no one was hit.
The stage for Wednesday’s hearing was set back in April, when the offender was originally expected to be sentenced after pleading guilty to recklessly firing the gun.
Crown attorney Rich Lonstrup asked Menzies to impose the legislated minimum four-year prison term, minus 60 days pre-sentence custody. But Menzies balked at the suggestion and described the shooter as a victim due to the bullying.
"We’re going to victimize this victim yet again and do it in the name of justice?" asked Menzies, who adjourned the case to hear constitutional arguments. Those arguments were heard on June 26 in Brandon Court of Queen’s Bench.
Nathaniel Carnegie, Crown counsel for the Constitutional Law Branch of Manitoba Justice, argued that the bullying shouldn’t matter and the court is bound by Parliament to uphold the law. Mandatory minimum sentences help deter vigilante justice, he added.
Defence lawyer Bob Harrison, on the other hand, argued that four years in prison would be cruel or unusual treatment or punishment under Section 12 of the Charter of Rights and Freedoms.
Four years would be "grossly disproportionate" to his client’s crime, Harrison argued. If not for the legislated minimum, the court would consider a much lesser sentence.
On Wednesday, Menzies said there’s no doubt that the shooter’s crime warrants a jail sentence.
On the other hand, a four-year prison term would be a hefty sentence for a 21-year-old with no prior adult criminal record.
"And there is a background that you have been involved, or have been a victim of, bullying and that you’ve lashed out as a result," Menzies said.
The judge said governments of all levels have recently concluded that bullying is a pervasive social problem that needs to be dealt with. It’s an issue he needed to consider in his sentence, he said.
To find the minimum sentence in violation of the Charter, Menzies noted, he would have to find it "grossly disproportionate" to what would otherwise be appropriate for this offender in this particular case.
Menzies also pointed to the restrictive bail conditions the shooter had been under for 18 months.
The bail conditions amounted to house arrest, and were more strict than conditional sentences.
The judge said a four-year minimum sentence wouldn’t allow him to take that into account.
While Menzies said he recognized it’s his constitutional duty to defer to Parliament, he ruled the legislated minimum to be a violation of the Charter.
Menzies said he had the option of granting a constitutional exemption to the offender without striking down the law, but declined.
"Either the law is valid or it’s not. I’ve come to the conclusion that it is not valid."
Menzies sentenced the shooter to one year in jail with two years probation to follow.
Following court, Crown attorney Rich Lonstrup said his office will consult with the Constitutional Law Branch as it considers whether to appeal.
Republished from the Brandon Sun print edition October 3, 2013