Miramichi judge balks at 3-year sentence for gun crime

A mandatory three-year minimum prison sentence for a Miramichi man who sold weapons illegally is cruel and unusual punishment that is unenforceable unless it can be justified as reasonable under the Charter of Rights and Freedoms, a provincial court judge ruled recently.

Troy Trepanier, 49, pleaded guilty to a weapons trafficking charge stemming from an RCMP raid at Miramichi City Surplus in 2014. The charge carries a mandatory minimum sentence of three years in prison.

According to court documents, an undercover operation was set up after the RCMP learned someone who was prohibited from possessing a firearm had purchases one from Miramichi City Surplus while using a false name and without being required to provide a purchase and acquisition licence (PAL).

• 3 men charged with unlawful sale of firearms near Miramichi

When an undercover agent visited the surplus store on July 4, 2014, Trepanier sold the agent a firearm and 1,200 rounds of ammunition without asking for a PAL.

On July 22, Trepanier sold an undercover agent two firearms and some ammunition. When the agent told Trepanier the guns were destined for Quebec, Trepanier replied he didn't care or want to know what he was doing with the guns in Quebec.

Search warrant executed

A search warrant was executed at Miramichi City Surplus the following day. The search turned up a number of sales were recorded to anonymous buyers and of the sales with names attached, 10 of the 14 buyers did not have a PAL.

The sale of 30.06 hunting rifle to a person prohibited from possession firearms was captured on security video.

People were also told they didn't require a PAL to purchase a firearm if they had "native status," according to court documents. Weapons were also found to be improperly stored.

Trepanier pleaded guilty to careless use of a firearm, weapons trafficking, and possession of weapons for the purpose of trafficking. The weapons trafficking charges carry a mandatory three-year minimum sentence that was introduced by the former federal government of Stephen Harper.

Devoted husband, father

In his ruling April 4 that has not been widely reported, Judge R. Leslie Jackson notes "Trepanier entered guilty pleas to the charges, has no prior criminal record and has, throughout his entire life, enjoyed a positive reputation in the community as a hard worker, an honest and dependable individual, and a devoted husband and father.

"Indeed, some 22 letters of reference or recommendation were filed with the court on the sentencing hearing."

Jackson noted all of the transactions involved long guns, and not handguns or restricted weapons.

"While Trepanier was either oblivious or willfully blind to the requirement that anyone wishing to purchase a firearm must provide a PAL, it does not appear that his motivation was financial," states Jackson.

"Finally, there is no suggestion that the firearms were destined for either gangs or other criminal organizations."

12-18 months

Jackson states that were it not for the mandatory three-year minimum provision, a proportionate sentence for Trepanier would be between 12 and 18 months in provincial jail.

"I am of the opinion that a mid-range provincial sentence of imprisonment would sufficiently deter not only Trepanier but others in like situations from dealing with the sales of such inherently dangerous items as firearms and ammunition in a careless of cavalier manner."

In reviewing case law, Jackson referred to R v Friesen in Alberta, which found the mandatory minimum sentence for Section 99 (2) of the Criminal code to be unconstitutional.

Jackson ruled imposing mandatory minimum sentence on Trepanier would be unenforceable because it goes against Charter protection against cruel and unusual punishment, unless the punishment can be justified as a reasonable limit that can be demonstrably justified under Section 1 of the Charter of Rights and Freedoms.

Jackson will hear legal arguments on whether the mandatory minimum sentence can be justified under Section 1 of the Charter at a later date.

• Supreme Court strikes down 2 Conservative sentencing reforms
• Supreme Court quashes mandatory minimum sentences for gun crimes

On April 14, 2015, the Supreme Court struck down the mandatory minimum sentence for crimes involving prohibited guns.

On April 16, 2016 the Supreme Court of Canada ruled two other sentencing reforms brought in by the Harper Conservatives were unconstitutional. Those cases dealt with a mandatory minimum of a one-year sentence for drug offences, and with people who are denied bail not getting extra credit for time served while awaiting trial.

In response to the April 16 court ruling, Prime Minister Justin Trudeau said "There is a general sense, reinforced by the Supreme Court decision, that mandatory minimums brought in by the previous government in a number of cases went too far."