Winnipeg Free Press - PRINT EDITION

Judge overrules law on gun crime

Mandatory term unjust in case, she says

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A Manitoba judge has refused to give a mandatory minimum sentence for a mentally disabled man guilty of a firearms charge, ruling the man's mental challenges make him less to blame for his actions and noting the law on compulsory prison terms doesn't account for his "child-like" state.

On Tuesday, Court of Queen's Bench Justice Colleen Suche said sentencing Mario Adamo, 39, to a mandatory minimum of three years behind bars for possession of a prohibited firearm is not only "cruel and unusual punishment" under Canada's Charter of Rights and Freedoms, it violates two other fundamental freedoms.

"I conclude that the mandatory minimum sentence... has a much greater impact on mentally disabled persons because it does not take into account their reduced moral blameworthiness," Suche wrote in a 59-page decision. "Persons, such as Mr. Adamo, whose mental illness has contributed to their committing an offence, are not free actors," she stated.

Prosecutors sought a five-year prison term for Adamo, saying he posed a public danger, given his history of crime dating back to 1995.

But following a protracted sentencing process featuring unchallenged testimony from a psychiatrist on Adamo's mental challenges, Suche ruled against the mandatory minimum penalty and gave him six months of time already served and three years of supervised probation.

Sending Adamo to prison for three years would be too harsh and out of line with his fundamental rights, Suche said. The federal prison system lacks the ability to deal with his mental-health needs, she said.

"Three years in a federal penitentiary, where many of the inmates are gang members... without appropriate programming, would be very severe. I am of the view that such punishment is not only unnecessary for Mr. Adamo's rehabilitation, but clearly detrimental to it," Suche stated.

She convicted Adamo of the gun-possession charge in May 2011, making him subject to a three-year mandatory minimum prison term. Parliament enacted the term into law in May 2008 as part of federal efforts to crack down on gang-related gun crime in major Canadian cities.

Under Section 15 (1) of the charter, mentally ill people are guaranteed the right to full consideration of the law, Suche said. "(The law on mandatory prison time) does not permit Mr. Adamo to be sentenced in a manner that recognizes his mental disability and its role in the commission of these offences. It does not take into account the impact on this already disadvantaged class of persons."

Suche's ruling could trigger a legal battle in the Court of Appeal on the mandatory minimum sentence.

Adamo, who was badly beaten by two Hells Angels gang members in 2000 and left severely cognitively impaired, was arrested in April 2009 after Winnipeg police located an unloaded .32-calibre gun behind a panel secured by screws in an outdoor shed at his mother's home.

In his police interview, an agitated, rambling Adamo admitted the gun was his, but suggested an unknown person put it in the shed.

Suche found he was suffering a "psychosis" at the time of his arrest and in his time with investigators, who also found a list of names of gang members in the shed and a bulletproof vest in a bedroom in the house.

In reaching her decision, Suche pointed to "systemic failures" that appear to have left Adamo without mental-health intervention by the justice system from the time he left hospital after being beaten until he was seen by Dr. Jeff Waldman in 2011 in preparation for sentencing on the gun case.

Republished from the Winnipeg Free Press print edition September 25, 2013 A4

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