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Judge strikes down federal law in unique bullying case

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A Manitoba judge has struck down federal legislation and ignored a mandatory prison sentence for a bullying victim who reached his breaking point and lashed out against his abusers.

Queen's Bench Justice John Menzies said today the law, as enacted, represents "cruel and unusual punishment" when meshed with the unique facts of the case before him.

Bryce McMillan, 21, pleaded guilty to reckless use of a firearm for the September 2011 incident in Carberry. The charge carries a mandatory minimum four-year prison sentence.

But Menzies told a Brandon courtroom today he was not going along with the legislation. He said that would be a clear Charter breach.

"Accordingly, the minimum sentence provision… must be declared invalid and of no force and effect," Menzies said in a 33-page written decision.

Instead, he sentenced McMillan to one year behind bars and two years of supervised probation. The Crown has 30 days to file an appeal. It’s also possible the case could eventually end up before the Supreme Court of Canada.

McMillan admits firing six rounds from a .22-calibre rifle into the residence of one of the people he claims had frequently tormented him. Nobody was injured, although two people were inside the residence at the time. McMillan, 21, claims he thought the house was empty.

"A human can only take so much before they push back, and I was at the end of my rope and didn't know what else to do," McMillan told a Brandon court at his sentencing earlier this year. "My intention was to send a message and say 'back off and leave me alone.' "

The Crown was seeking the mandatory minimum sentence for the weapons-related crime. But Menzies balked at the suggestion, saying it seems ridiculous to send an otherwise law-abiding citizen such as McMillan to a penitentiary considering the unique circumstance of his crime.

"We're going to victimize this victim yet again and do it in the name of justice?" Menzies asked Crown and defence lawyers during submissions earlier this year. He reserved his decision but put them on notice he may take the rare step of issuing a "constitutional exemption" and go under the required minimum penalty first enacted in 2008.

McMillan’s house had been painted with vulgar words and phrases and he was routinely confronted on the streets and at his workplace, court was told. No charges have ever been laid for any of the incidents against him.

McMillan has been free on bail since shortly after his arrest and under a 24-hour daily curfew with no alleged breaches. He has full-time employment and strong family support, including many who were present in court. He has also taken anger-management classes to help deal with some of his lingering resentment over what he’s been through, court was told.

The Crown has urged Menzies to follow the required legal course, saying McMillan’s actions represent "extreme recklessness" which could have had deadly consequences.

There are few examples in Canada of judges who have strayed from mandatory minimums. But one just occurred last week in Winnipeg, when a judge refused to impose three years in prison for a mentally disabled man guilty of a firearms charge.

Justice Colleen Suche ruled that man’s mental challenges make him less to blame for his actions and noted the law on compulsory prison terms doesn’t account for his "child-like" state. She said the mandatory sentence is not only "cruel and unusual punishment" under Canada’s Charter of Rights and Freedoms, it violates two other fundamental freedoms.

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