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Minimum gun sentencing, role of bullying debated in 2011 Carberry incident

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Bullying should not be a factor in the sentencing of a 21-year-old man who pleaded guilty to firing a gun into a Carberry home in 2011, according to a Manitoba Crown attorney.

"Unfortunately it was a decision to take up a firearm that brings us here," said Nathaniel Carnegie, Crown counsel for the Constitutional Law Branch of Manitoba Justice. "The fact that it was prompted by bullying cannot be... a mitigating factor."

"Parliament has basically said ‘Use a firearm, (and) your specific circumstances don’t matter.' "

The comments were part of the Crown’s legal arguments in Brandon Court of Queen’s Bench yesterday to preserve a federally mandated four-year minimum sentence for the defendant.

The 21-year-old gunman pleaded guilty earlier this year to reckless use of a firearm during a Sept. 5, 2011 incident. The defendant, who was 19 at the time of the offence, fired six rounds from a .22 calibre rifle into a Carberry home that was owned by one of the people he claims bullied and tormented him.

Justice John Menzies previously questioned the federal legislation that calls for a mandatory four-year prison sentence for a person who intentionally and recklessly discharges an unrestricted firearm into or at a place, and who is not connected in some way to a criminal organization.

"We’re going to victimize this victim yet again and do it in the name of justice?" Menzies asked Crown and defence lawyers in April.

Yesterday’s court date allowed Menzies to hear further arguments before he decides whether or not to override the mandatory sentence imposed by the federal government.

Defense attorney Bob Harrison has made a challenge to the law, based the Canadian Charter of Rights and Freedoms. Section 12 of the charter states: ‘Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.’

Harrison argued the four-year minimum sentence was "grossly disproportionate" to the crime the defendant committed, and that had the court’s hands not been tied by the legislation, it would be considering a much less severe punishment.

The four-year minimum, he said, "really reduces the role of the court," and added the sole focus of the legislation was general deterrence, not fair punishment.

"He knows what he did was wrong," Harrison said. "He doesn’t need a long jail sentence to show that it was wrong."

Previously, Crown attorney Rich Lonstrup told Justice John Menzies that he would seek the minimum four-year prison term for this type of crime, minus 60 days of pre-sentence custody.

As sentencing began in Brandon Court of Queen’s Bench on April 9, Lonstrup said the gunman’s dangerous actions were a "grossly disproportionate" response to the harassment.

In addition to Lonstrup’s prior comments, Carnegie suggested the discretion of the court does not come into play when it comes to firearms offences, even if the minimum sentence required by law is excessive.

"The punishment is worth it, even if its grossly disproportionate to the offense," Carnegie said.

Though he noted the court is "free to indicate that it might have done something else but for the minimum," it was still bound by the will of Parliament to uphold the existing law and had no authority to act otherwise.

He also suggested mandatory minimum sentences help deter vigilante justice in Canada, and noted local RCMP had recently been forced to caution the public not to act against a man who allegedly exposed himself to a 12-year-old girl in Spruce Woods Provincial Park.

"This is a reminder that these types of concerns are perennial," Carnegie said.

Though the gunman faces a four-year term in prison, Carnegie said the defendant should take solace in the fact he was a "very good candidate" to receive early parole after 16 months — to which Harrison said there was no such guarantee.

Menzies will hand down his decision on Oct. 2.

mgoerzen@brandonsun.com

- with files from Ian Hitchen

History

Updated on Wednesday, June 26, 2013 at 7:12 PM CDT: Tweaks headline to better reflect scene of incident.

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