in the context of a Section one application by the Crown may provide the basis to justify the constitutional breaches in this case and thereby preserve the effect of the mandatory minimum," Bahen said.
Bahen put the case over to Jan. 21 and invited the Crown to argue under Section one of the Charter, which says there are reasonable limits on some constitutional rights.
Judge James Bahen said Thursday that the three year minimum term enacted in 2008 for possession of a loaded, prohibited firearm violates both section 12 and section seven of the Canadian Charter of Rights and Freedoms.
"I conclude that the gap of two years in the structure of sentencing for section 95 offences creates an arbitrary and fundamentally unjust sentencing process in violation of section seven," Bahen said.
Anti gang squad police watch as friends and family arrive at the memorial service of Tom Gisbey at Victory Memorial Park in Surrey on Friday, May, 11 2012. resident Tom Gisbey allegedly had Hell's Angels connections and was shot dead in Mexico in a gang retaliation incident last week.
Bahen also said the legislation violates Section 12 of the Charter which protects against cruel and unusual punishment. prosecutors to proceed by way of direct indictment in Sheck's case. The problem is with the "legislative framework," he said.
Bahen accepted arguments from Sheck's lawyers that there are problems with the legislation because it requires a three year minimum when the Crown proceeds by way of direct indictment, while allowing a minimum one year sentence if the Crown proceeds summarily in less serious cases.
"There were numerous customers and staff inside at that time of the evening," Bahen said in Thursday's ruling.
Police were watching him as he left his house, stopped briefly at another residence, then drove to the Earl's on 152nd in Surrey about 7:10 pm.
It included details of an RCMP investigation in the attempted murder of Sheck's former spouse's new boyfriend and the fact Sheck was a suspect at the time though was never charged.
voir dire in Sheck's case, summarized in a ruling last year, was not admissible at Sheck's sentencing.
No evidence of Sheck's gang associations was presented during his sentencing hearing. Last fall, outside court, he chatted with gangster Sukh Dhak, who stopped by the Surrey courthouse despite not having a scheduled appearance. Dhak was later gunned down in Burnaby.
Bahen said Thursday that evidence from a Puma Creepers Velvet Pink
But Bahen said he still needs to hear from Crown about whether those Basket Puma Heritage
Sheck, 31, was arrested by the Gang Task Force on Nov. 4, 2010 after they got a tip he was carrying the loaded prohibited handgun.
"The presence of a loaded gun readily accessible in a busy restaurant are sufficiently serious to conclude the sentence of three years may be excessive and harsh but not cruel and unusual."
Sheck turned and smiled several times at relatives and supporters in courtroom 107 Thursday as Bahen read out his findings. against the tough mandatory firearms sentences enacted four years ago, though the mandatory minimum terms in Section 95 of the criminal code have been ruled unconstitutional in several Ontario cases now under appeal.
Original source article:Mandatory minimum sentence for illegal gun possession is unconstitutional, Surrey judge rules
Mandatory minimum sentence for illegal gun Puma Basket Green possession is unconstitutional
Bahen said Sheck had no prior criminal record, a support family and good work prospects.
Charter breaches should impact the sentence of Glenn Harley Sheck, convicted of carrying a loaded Glock inside his Louis Vuitton man purse two years ago.
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"If the applicant were sentenced for this offence based on the facts of the offence and his personal circumstances, without the mandatory minimum provision, I would impose a sentence that is less than three years."
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