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Roanoke Firearms owner John Markell holds a Glock 9 mm pistol in Roanoke, Va. The gun is similar to the one sold in his gun shop to Cho Seung-Hui, who killed 32 people at Virginia Tech in 2007. (Don Petersen/AP)
Roanoke Firearms owner John Markell holds a Glock 9 mm pistol in Roanoke, Va. The gun is similar to the one sold in his gun shop to Cho Seung-Hui, who killed 32 people at Virginia Tech in 2007. (Don Petersen/AP)

Globe editorial

It’s not arbitrary to be tough on guns Add to ...

A man walks into a crowded restaurant with a loaded handgun – but this is not a joke. It’s a Canadian constitutional case from Surrey, B.C. The mandatory minimum penalty is three years. But the judge in the case is threatening to strike down the mandatory minimums, finding them arbitrary. They are anything but arbitrary.

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The case of Glenn Sheck and his Glock 9mm semi-automatic is a challenge to those Canadians – including those who write in this space – who question some mandatory minimum penalties, and yet espouse strong gun controls. Adam Lanza brought along a Glock 9mm handgun when he shot and killed 20 children and six adults at an elementary school in Connecticut last month. It is not a big leap from Canada’s strong gun laws to a tough mandatory minimum for illegal possession.

Why did B.C. Provincial Court Judge James Bahen call the penalty arbitrary? Because the maximum penalty on a less serious “summary conviction” offence is just one year; Judge Bahen found the gap between the one-year maximum and the three-year minimum for a more serious offence to be arbitrary. It’s much better understood as a safety valve for unusual cases.

Take an Ontario case in which a former provincial cabinet minister, John Snobelen, carelessly did not register a handgun, which he had no access to (his ex-wife had hidden it). Three years in prison would have been absurd. Charged with a summary conviction offence, he received an absolute discharge.

But when the Crown doesn’t use the safety valve, the system can come crashing down – as in another Ontario case, in which an otherwise law-abiding man, Leroy Smickle, foolishly picked up someone’s gun in his cousin’s private home and tried to photograph himself holding it, at the very moment that police armed with a search warrant were preparing to forcibly enter that home. In that case, a judge had good reason to find that three years was a grossly disproportionate penalty. The Smickle case suggests a need to give judges some wiggle room for exceptional cases. (The Smickle ruling is under appeal.)

Judge Bahen called the three years in Mr. Sheck’s case “harsh,” though not unconstitutionally so. But harshness is exactly the point. Canadians don’t want people walking into crowded restaurants with loaded guns.

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