Another Manitoba Judge has decided to circumvent Parliament by disregarding a mandatory minimum sentence for a Brandon man who fired six shots at an occupied residence in September 2011.
On April 9, 2013, the offender, Bryce William McMillan (21) plead guilty to a charge of “intentionally discharging a firearm into a place knowing that or being reckless as to whether another person was in that place.” In exchange for the guilty plea the Crown Prosecutor stayed proceedings on eight (8) other criminal charges.
Mandatory minimum sentencing provisions required the Court to impose a minimum sentence of four (4) years incarceration to be served in a Federal Penitentiary.
That sentence, according to Justice John Menzies is tantamount to “cruel and unusual punishment.” As a result, Menzies declared the minimum sentencing provision invalid and of no force or effect. He then sentenced McMillan to a one (1) year period of incarceration to be followed by a two (2) year period of probation.
Last week, Justice Colleen Suche came to a similar conclusion disregarding a mandatory three (3) year minimum sentence for Mario Phillip Adamo, a notorious Winnipeg thug she declared was not a “free actor” due to a brain injury he suffered during a baseball bat assault at the Hells Angels Clubhouse.
While Adamo was not exactly a poster boy for those in support of the abolition of mandatory minimum sentences, McMillan comes closer. According to Menzies, McMillan’s status as a victim of bullying was an aggravating factor that significantly affected his sentencing deliberations.
In McMillan’s case, the bullying started in 2010 after he was convicted of a residential Break & Enter offence during which time he stole a pair of girls panties. A number of people in the Carberry community where the offence have confronted him and instigated physical confrontations. One of his primary tormentors admitted to publicly tormenting McMillan for approximately two (2) years. (While I don’t condone bullying one might expect these kind of ramifications if you do a B&E in a small community and steal ladies underwear.)
On September 5, 2012, McMillan armed himself with a .22 calibre rifle and proceeded to the residence of his main tormentor. He then fired six (6) shots at the residence with a total of four (4) projectiles penetrating the home. According to McMillan he would have continued firing the remaining six (6) shells had his rifle not jammed. At the time of the shooting his primary tormentor and two other people were in the home. No one was injured as a result of the shooting.
In fairness, mandatory minimum sentences for this type of firearm offence were originally designed to counteract the reckless use of firearms by criminal street gang members who participate in drive by shootings that target residential dwellings. As a result, I understand Justice Menzies hesitation to sentence McMillan under the mandatory minimum sentencing provisions and I question the decision to lay and prosecute the charge in the first place. Nonetheless, the sentencing decision is emblematic of a dysfunctional soft justice system that is fraught with alarming revelations.
I say this for a number of reasons.
Menzies decision completely undermines the plea bargain process and cuts the Crown Prosecutor off at the knees. In this case the Crown stayed proceedings on a total of eight (8) other criminal charges in exchange for a plea to a crime that both the defense and the accused knew came with a mandatory minimum sentence. Even Judges acknowledge plea bargains form an essential part of the legal system. Without plea bargains our Courts would be so overburdened with trials the entire Justice system would collapse under its own weight.
Menzies doesn’t try to camouflage his contempt for mandatory minimum sentences and shares his belief they give the Crown an unfair advantage. In his confused role as champion for criminal offenders, Menzies tells us he believes mandatory minimums force accused persons to make plea bargains to lesser offences. He seems to forget that plea bargaining is a voluntary process entered into by the Crown & Defence so that accused persons can admit their guilt for a reduced sentence. (That’s why they call it a plea bargain.)
Even more astonishing, Menzies suggests his fellow Judges will be reluctant to convict offenders who face lengthy mandatory minimums and as a result, they may acquit criminals for “questionable reasons.” (Paragraph 77)
I find it frightening that a Judge is so confused with his role in the Justice system that he would go on record saying members of the Judiciary would rather let accused criminals off then convict them of a mandatory minimum sentence. Lest we forget, mandatory minimum sentences are reserved for extremely serious, violent offences.
Like Justice Suche, Menzies expresses a lack of faith in our Federal Prison system, sharing concerns regarding forced conscription into gangs and the impact hardened criminals might have on a youthful offender. It begs the question, why is it that Judges can’t take the impact of Parole into account in their sentencing decisions, yet prison conditions somehow factor into the equation?
I’m also concerned that Justice Menzies considers an eighteen (18) month period of judicial interim release “punishment.” During that time McMillan was subjected to a six month period of house arrest and a twelve month period where his movements were restricted. While on release McMillan was permitted to go to work, attend a family reunion, a wedding and visit family over Christmas. Some might suggest he was lucky to be granted any form of bail given the serious criminal charges he was facing. After all, the alternative was jail. Not so according to Menzies, “The accused has earned some meaningful credit for his compliance with what amounts to and extended period of house arrest,” he writes.
Unfortunately, much like Justice Suche, Menzies has mistaken his role on the Bench with that of Legislator, Warden, Social Worker and Defender of the rights of convicted criminals.
Two things are obvious in Menzies sentencing decision;
- He abhors mandatory minimum sentences
- He has no faith in Federal Corrections
With that sort of mindset, he finds himself searching for justification to circumvent the will of Parliament and decides to try to sell us on a Charter breach indicating a mandatory minimum four (4) year sentence in a Canadian Federal prison is somehow cruel and unusual punishment. I might buy his conclusion if McMillan was sentenced to serve his time in China or North Korea.
The bigger question remains, if members of the judiciary no long see jail as a viable alternative for convicted non-gang affiliated criminals, maybe its time for someone in our Federal Government to take notice.
Until then, justice in Manitoba will continue down this frightening path.