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Judge considers rare step of issuing a 'constitutional exemption'

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A Manitoba judge is set to hear further arguments this month before he decides whether to ignore federal legislation and override a mandatory prison sentence for a bullying victim who reached his breaking point and lashed out against his abusers.

Bryce McMillan, 21, pleaded guilty earlier this year to reckless use of a firearm for the September 2011 incident in Carberry. He admits firing six rounds from a .22-calibre rifle into a home where one of the people he claims had frequently tormented him lived. Nobody was injured, although two people were inside the residence at the time. McMillan 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 in April. "My intention was to send a message and say 'back off and leave me alone.' "

Now Queen's Bench Justice John Menzies is the one considering sending a message -- all the way to Ottawa. The veteran judge blasted legislation that calls for a mandatory four-year prison sentence for this type of crime. He said 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. He 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.

Lawyers will now return to court on June 25 with legal arguments on the issue.

"But for the minimum sentence we wouldn't even be talking about pen time," said Menzies. He also had strong words for RCMP and residents of Carberry, who he said have done nothing to help protect McMillan from local bullies who have made his life miserable since 2009.

McMillan's house has 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.

Crown attorney Rich Lonstrup urged Menzies to impose the four-year sentence. He said McMillan likely would have kept firing if his gun hadn't jammed and there were 12 more rounds in the chamber, which could have had deadly consequences.

"We say this is an act of extreme recklessness," said Lonstrup. "It was also extremely cowardly."

"I agree it was cowardly. It was cowardly like being a bully," Menzies quickly replied.

Lonstrup said he sympathizes with what McMillan was subjected to but called his reaction "grossly disproportionate" and dangerous.

"For personal reasons, I get his mindset. I understand how bullying cuts right to the bone. It affects your self-esteem so badly," said Lonstrup.

"It would be hell to live in a small town with this stuff (the graffiti on his home) painted up. It would almost drive someone to do something they wouldn't normally do. Where's the justice in sending someone like this to the pen?" asked Menzies. "Here's a man who's at his last end. He's a man who has been bullied for two years and nobody, nobody did a thing about it."

McMillan has been free on bail since shortly after his arrest and under a 24-hour daily curfew with no alleged breaches. Menzies ruled in April that McMillan can continue in the community pending his decision and relaxed the curfew to run only from 11 p.m. to 7 a.m. McMillan 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.

"Being in jail (for a few weeks after his arrest) was an eye-opening experience. It's not a place for me and I need to make better decisions in my life," McMillan told the judge.


www.mikeoncrime.com

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