Jail time for man convicted in nail-gun case would violate rights, lawyer says

The lawyer for a Nova Scotia man who shot a co-worker with a nail gun argues his client's charter rights would be violated if he is sent to jail, a sentence that'scurrently required under federal mandatory minimum sentencing provisions.

Shawn Wade Hynes was convicted ofcriminal negligence causing bodily harm and assault with a weapon for shooting Nhlanhla Dlamini with a framing nailer at a construction sitein Abercrombie, N.S., on Sept. 19, 2018. Dlamini suffered a punctured lung.

Hynes was tried and convicted following a trial in Nova Scotia provincial court in Pictou in September2019. Sentencing has been delayed several times, first to allow the filing of victim impact statements, then because of COVID-19 and finally to advance the constitutional arguments.

Those arguments have been complicated by a recent Ontario court ruling which found the mandatory minimum sentences in Ottawa's Safe Streets and Communities Act, which was passed in 2012, violate Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees life, liberty and the security of the person.

The act doesnot allowconditional sentences, such as house arrest,for certain types of offences, including some that result in bodily harm orwhere a weaponis used.

In a sentencing hearing Wednesday morning in Pictou, Crown and defence lawyers in the Hynes case argued how much weight Judge Del Atwood should give to the Ontario decision and to the charter arguments in general. The Ontario case of Cheyenne Sharma is being appealed to the Supreme Court of Canada.

In arguing against a custodial sentence for Hynes, lawyer Andrew O'Blenis pointed to his client's character.

"He is held in high regard by his employer, friends and family," O'Blenis wrote on behalf of Hynes. "He lives a pro-social, quiet life."

O'Blenis said Hynes has suffered a great deal from the attention the case has generated, including allegations of racism. Hynes is white, Dlamini is black. O'Blenis said there have been online threats made against Hynes and his family.

The Crown argued that even if Hynes's charter rights are infringed by the mandatory minimum, the infringement is reasonable because of the need for denunciation and deterrence for a crime like this. Crown prosecutor Bill Gorman has asked for a sentence of 12-15 months, followed by probation of up to 18 months.

Atwood has reserved his decision until April 23. Because of public interest in thecase, that decision may be live-streamed because pandemic restrictions limit the number of people who can be present in the courtroom.