A Surrey provincial court judge has ruled that the federal three-year mandatory sentence for carrying a loaded, restricted firearm is unconstitutional.
Judge James Bahen made the ruling Thursday (Jan. 3) in connection with the sentencing of Glenn Harley Tetsuji Sheck, 31, who was convicted last May of possessing such a gun at a Surrey restaurant two years ago.
Bahen adjourned the court proceedings to give Crown prosecutors an opportunity to show the three-year sentence is reasonable prior to his handing down a sentence.
On Nov. 4, 2010, police had Sheck under surveillance and had information he was carrying a firearm in a black Louis Vuitton bag.
They watched him leave his home and drive to another house where he spent a brief amount of time. Alone, Sheck then drove to and entered a restaurant on 152 Street in North Surrey at about 7:10 p.m. with the black bag. He was sitting by himself inside when officers approached him and asked him to go outside. He complied and was arrested without incident.
The gun, a Glock nine-millimetre semi-automatic handgun – a weapon restricted in Canada – was seized. The gun's magazine was loaded and contained 10 cartridges, according to court documents.
Crown argued that a three-year sentence is appropriate because of the danger Sheck's actions posed.
However, defence lawyers said Sheck should serve no more than a year and a half, arguing the three-year mandatory minimum is cruel and unusual punishment (section 12 of the Charter of Rights and Freedoms) and breached their client's right to "life, liberty and security of person" under the charter's section 7.
In his Thursday ruling, Bahen said the mandatory minimum sentence legislation breached both sections.
However, he added that the three-year minimum is "not cruel and unusual punishment" for this particular case, but considered it "harsh and excessive" in that it doesn't' address Sheck's individual circumstances.
Sheck has no prior criminal record, is a father of four children, works as an apprentice electrician, and is the sole economic support for his family and is of First Nations descent. He's been under strict bail conditions since his arrest.
"If [Sheck] were sentenced for this offence based on the facts of the offence and his personal circumstances, without the mandatory minimum provision, I would impose a sentence that is less than three years," wrote Bahen in his ruling.
The mandatory federal firearms sentences were enacted four years ago.
Bahen agreed with Sheck's lawyers that the law causes problems because it demands a three-year sentence when the Crown proceeds on direct indictment and only one year when Crown proceeds summarily on less-serious crimes.
It creates an "arbitrary and fundamentally unjust sentencing process," said Bahen.