A B.C. Supreme Court Justice is being asked to dismiss a four-year mandatory minimum sentence a Vanderhoof man is facing for manslaughter involving a firearm.
Arguing on behalf of Kayne Sabbe Penner, lawyer Dave Jenkins argued Thursday the term is cruel and unusual under the Charter of Rights and Freedoms given the circumstances.
In March, a jury found Penner guilty of the count, as well as careless use of a firearm, in the Dec. 20, 2012 shooting death of his fiance, April Johnson, 18.
The couple were visiting his cousin, Richard Gunnar Borne, and were about to leave his Vanderhoof-area mobile home to go target shooting. Borne faces sentencing for careless use or storage of a firearm and possession of a firearm without a licence.
The court heard Borne had leaned his .22-calibre semiautomatic rifle against the kitchen counter. Penner picked it up and pulled the bolt back to see if it was loaded when he dropped it.
The gun went off and Johnson, who was standing a short distance away, was struck in the stomach. She died early the next morning.
Penner had his back turned to Johnson when the gun went off, Jenkins noted, and like he did during the trial, raised the possibility that the trigger may have made contact with a clutter of items on the counter, notably a cast-iron figure of an eagle with its claws in the air.
Jenkins said Penner had no intention of harming anyone, "leastways his fiance."
"He fully cooperated with the police after the offence, he gave multiple comprehensive statements and, of course, he was devastated by the loss of his fiance and continues to be to this day," Jenkins later added.
He said the jury's verdict came as a surprise and contended the fact Penner was checking to see if was loaded was a "good thing" and "probably adds to his lack of culpability."
In response, Crown prosecutor Lara Vizsolyi noted Penner failed to first check the safety to see if it was on and the fact he was checking to see if it was loaded necessarily implies he thought it was possible there was a bullet in the chamber.
Jenkins had also noted there was no evidence to show Penner was intoxicated at the time. Vizsolyi countered, "it was the judgment of a sober person and yet he chose to attempt to check this firearm with the safety off in a crowded kitchen over a cluttered countertop."
Had the jury found Penner guilty of careless use of a firearm only, he would have faced a three-year mandatory minimum. If Pearlman dismisses Jenkins' application, it will be the end of the matter, Vizsolyi said, because Crown is seeking only the four-year minimum.
Pearlman reserved judgment.
