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Judge rules four-year term 'cruel' for crime

Ignores law in case of bullied man

Hey there, time traveller!
This article was published 2/10/2013 (2547 days ago), so information in it may no longer be current.

A Manitoba judge has refused to enforce a piece of federal legislation in a decision that sends a strong message to Ottawa -- and could have major legal implications across the country.

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

Justice John  Menzies


Justice John Menzies

But Queen's Bench Justice John Menzies ruled Wednesday this particular section of the Criminal Code represents "cruel and unusual punishment" when meshed with the unique facts of the case before him.

Menzies told a Brandon courtroom that going along with the required sentence -- as countless judges across Canada have been doing since the law came into effect in 2008 -- 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. What happens next will determine just how significant this decision is.

The Crown has 30 days to appeal or the decision would become binding and likely a focal point in courtrooms across the land. It's also possible the case could eventually end up before the Supreme Court of Canada on the grounds it raises a major point of law.

McMillan's case was noteworthy because he is a bullying victim who reached his breaking point and lashed out against his abusers.

McMillan admits firing six rounds from a .22-calibre rifle into the residence of one of the people he claims had frequently tormented him. No one 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 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 circumstance of his crime.

Bullying victim Bryce McMillan fired bullets through the window of a Carberry home in September 2011.


Bullying victim Bryce McMillan fired bullets through the window of a Carberry home in September 2011.

Menzies said the issue of bullying has been on the national radar and played a big role in his decision.

"It is true that bullying cannot be used to justify the actions of the accused. The accused has acted violently and society is entitled to be protected from people who react in a violent manner like the accused. Our society does not condone vigilante justice nor should it. The accused must be punished for his actions," he wrote.

"On the other hand, to ignore the bullying to which the accused has been subjected is to ignore the central underlying cause of this crime. There are many ways a victim of bullying may react to prolonged harassment. It should come as no surprise to anyone that lashing out may be one of them."

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 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.

Mike McIntyre

Mike McIntyre

Mike McIntyre grew up wanting to be a professional wrestler. But when that dream fizzled, he put all his brawn into becoming a professional writer.

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Updated on Thursday, October 3, 2013 at 8:49 AM CDT: Adds document

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