R. v. Sprague, 2016 ONCJ 604

Court File and Parties

Court File No.: Kitchener 6982-15 Date: 2016-09-30 Ontario Court of Justice

Between: Her Majesty the Queen — and — Joshua Anthony Sprague

Before: Justice G. F. Hearn

Heard on: August 24, 2016 and September 20, 2016

Reasons for Sentence released on: September 30, 2016

Counsel:

• Ms. K. Krafchick / Ms. L. Elliott, counsel for the Crown
• Mr. S. Gehl, counsel for the defendant Joshua Sprague

HEARN J.:

BACKGROUND

1On August 24, 2016 the accused Mr. Sprague came before the court and entered pleas of guilty to a number of criminal charges arising out of events in June and November 2015. On September 20, 2016 a further plea of guilty was entered to a count arising out of events on July 5, 2016.

2The June 19, 2015 charges arise out of an investigation conducted by the police with respect to a motor vehicle collision. Mr. Sprague has entered pleas of guilty to obstruct police during the course of that investigation as well as driving while disqualified. The November charges relate to a traffic stop conducted on November 4, 2015 and pleas have been entered to counts of possession of methamphetamine, drive while disqualified and four charges relating to the possession of a prohibited firearm found within the vehicle occupied and driven by Mr. Sprague on that date.

3On August 24, 2016 pleas were entered to the June and November 2015 charges and the matter was adjourned for a pre-sentence report to September 20, 2016. On September 20, 2016 there was the additional information before the court relating to a breach of recognizance occurring on July 5, 2016. Following the plea on that count and hearing submissions on sentence from both the Crown and the defence, the matter was adjourned to today's date for sentencing.

CIRCUMSTANCES OF THE OFFENCES

(a) Events of June 19, 2015

4On June 19, 2015 Mr. Sprague was not only a prohibited driver but he was also subject to a probation order for a three year period which commenced on September 23, 2013. Notwithstanding his disqualification from operating a motor vehicle, he was in fact doing so shortly after 4:00 p.m. on June 19, 2015.

5While doing so, the vehicle he was operating struck the rear of a dump truck causing, I gather, minimal damage to the dump truck but rather significant damage to the vehicle operated by Mr. Sprague. Following the collision Mr. Sprague got out of his vehicle and told the other driver he would return with the necessary documentation and information. Mr. Sprague left the scene and did not return. The other driver, however, was able to get a licence plate number and provide a description of Mr. Sprague.

6The police were called and were ultimately able to locate Mr. Sprague as well as his partner, Erin Dietrich, who was in the vehicle at the time of the collision. Ms. Dietrich told the police that she had been operating the vehicle and Mr. Sprague was in fact asleep in the back seat, a story that was confirmed by Mr. Sprague.

7Ultimately the police were able to locate the vehicle and received further information which led them to rightfully believe it was Mr. Sprague that was driving. He was then arrested for obstruction and drive while disqualified, processed and ultimately released.

(b) Events of November 4, 2015

8While those charges were pending and notwithstanding his continuing disqualification from driving, Mr. Sprague was again operating a motor vehicle on November 4, 2015. The vehicle was a rental motor vehicle and was being operated by Mr. Sprague at a speed well in excess of the speed limit on Highway 8. He was observed by the police and a traffic stop was conducted.

9Initially Mr. Sprague made a vain attempt to provide the officer with a false name. Open liquor was observed by the officer within the vehicle and when Mr. Sprague's true identity was learned, it was discovered that he was a prohibited driver.

10Mr. Sprague was placed under arrest. The officer had observed the open liquor and a search of the vehicle resulted in the finding of approximately one gram of crystal methamphetamine. In addition, and more importantly, under the front seat of the vehicle the police located a sawed-off loaded Remington .22 firearm. There was one round of ammunition in the chamber and five rounds in the magazine of that firearm. As a result of the prohibited nature of the firearm, Mr. Sprague was arrested on additional charges. He admitted to owning the firearm and photographs of that particular item have been marked as Exhibit #7 in this matter.

11When the facts were read in, defence counsel indicated the rifle had originally been lawfully bought pursuant to the necessary licence and authorization by Mr. Sprague sometime before the date of the discovery on November 4, 2015. The gun had in fact been altered by Mr. Sprague, apparently according to counsel, to be used for "bear hunting". Counsel submitted, and the Crown agreed, although the weapon had been originally not a prohibited firearm and Mr. Sprague had been lawfully in possession of the gun, it became a prohibited weapon as a result of the alteration and the shortening of the barrel.

12Counsel also advised that at the time of the stopping of the vehicle operated by Mr. Sprague on November 4, 2015, Mr. Sprague was moving various items including the rifle back to his farm from the truck that had been previously damaged and I gather was still subject to repairs and/or storage following the incident on June 19, 2015.

(c) Events of July 5, 2016

13Following his arrest on November 4, 2015, Mr. Sprague was held in custody and not released until January 28, 2016. The recognizance in place following his release had a number of conditions, one of which was that he be in his residence at all times except for certain exceptions, one of which was if he was in the presence of his surety who at the time was his mother. On July 5, 2016 Mr. Sprague was in fact outside of his residence at approximately 10:40 a.m. and was observed to be stopping at a feed mill on Floradale Road. Police observed him, he ultimately identified himself and shortly after the stopping his mother arrived at the feed mill as well. Mr. Sprague had been outside of his home which is agreed to be less than a kilometre away I am told from the feed mill without being in the presence of his surety and as a result was arrested for that breach. He has been in custody since that time.

14With respect to this particular charge, counsel advised that arrangements had been made to meet the mother at the mill as she was apparently unable, for some reason, to have Mr. Sprague in her presence from the home to the mill. So he was driven to and met the mother at the mill as apparently pre-arranged.

CIRCUMSTANCES OF THE OFFENDER

15Mr. Sprague is 34 years of age, soon to be 35. Filed as Exhibit #5 is a pre-sentence report which was prepared for the purpose of sentencing. That report incorporates information gleaned from a previous pre-sentence report in 2013 and also updates that information. The report sets out the current circumstances of the accused as well as his background.

16Mr. Sprague does not come before the court as a first-time offender. His record is set out in Exhibits #1 and #2 in this proceeding. In March 2002 Mr. Sprague was convicted of over 80 and fined $800. In August 2004 he was charged with possession of stolen property as well as failing to comply with an officer-in-charge undertaking for which he was again fined.

17More recently, in September 2013 he was convicted of impaired driving, fined $1900 and prohibited from driving for a period of two years. In addition, on that date he was found guilty of possession of cocaine and received a period of probation of three years. It was that probation order that was outstanding at the time of the offences before the court. In addition, in early 2015 Mr. Sprague was convicted of drive while disqualified and fined $2,000. The court is uncertain as to the conviction date on that particular matter as the pre-sentence report indicates it was May 4, 2015 whereas the Highway Traffic Act record filed indicates there was a finding of guilt on that count on February 20, 2015. In any event, Mr. Sprague acknowledges that both in June and November 2015 he was a prohibited driver and was operating a vehicle on those occasions while disqualified from so doing.

18The family circumstances of Mr. Sprague are set out in the report. It appears he was raised in a loving home and when his parents separated in 2005 both his mother and siblings, as well as Mr. Sprague, were "shocked and profoundly hurt". His contact with his father remains sporadic but he is close to his mother and she not only has been present in court when Mr Sprague's matters are being dealt with, but also had been acting as surety for her son.

19The accused has been involved in previous relationships but for the past number of years has been in a relationship with Erin Dietrich who is the co-accused with him on the June charges. They have had one daughter together who is age four and Ms. Dietrich has a son who is ten years of age from a previous relationship. Mr. Sprague is said to be close to both children. The older child suffers from cystic fibrosis and requires medical intervention in the way of surgeries, treatment and medication. Mr. Sprague is said to treat the older child as his own. His extended family, save and except his father, appears to be a close family unit and Mr. Sprague's absence has impacted that group. Ms. Dietrich advises that while Mr. Sprague has been incarcerated she has assumed full responsibilities for their farming activities as well as parenting the two children and attending to other family needs.

20The accused has a high school education. He has been previously diagnosed with ADHD but was able to complete two years of university before he left to pursue a career change. He then obtained certificates from college and other programs with respect to mechanics and carpentry.

21He commenced his own business but unfortunately encountered some rather significant health issues. He was able to return to work in construction where his employer for whom he worked until recently, describes him as an excellent and reliable worker. His employment ended when he was arrested in November 2015 and incarcerated for an extended period of time prior to his release. Upon his release it is said he was unable to work at that employment due to the conditions contained in that release. He has, however, worked in a family-owned pub and restaurant between February 2016 and July 2016 until the time of his most current arrest. Letters from current and previous employers have been filed as exhibits.

22Mr. Sprague assisted his maternal grandparents in operating their farm until his grandfather passed away in 2015. He has continued to maintain that farming business and at all relevant times was living on the family farm.

23There have been substance abuse issues which commenced when Mr. Sprague was about 14 years of age. The use included hashish, cocaine and ecstasy. In addition, he abused alcohol and the charges that were before the court in September 2013 resulted from that abuse. He reported to the author of the pre-sentence report that although he continued to abuse alcohol after that, he ceased the use of drugs. From the finding of the crystal meth in the vehicle in November 2015 that statement is somewhat questionable. His alcohol consumption, however, is acknowledged and was excessive. He reports, as do collateral sources, that after his arrest in November 2015 Mr. Sprague has abstained from both the use of alcohol and drugs. He is open to counselling on an ongoing basis with respect to those issues.

24Collateral sources indicate Mr. Sprague as a result of his ADHD has on occasion acted on impulse and his decision-making has been poor. He is described as being highly involved with his family as well as a loving parent. He has been also described as outgoing, a personable and a loyal friend and as someone who "thinks too much and worries about others and not enough about himself". Notwithstanding the events in June 2015 it appears he and Ms. Dietrich have a relationship that is positive in nature.

25With respect to the offences before the court, Mr. Sprague spoke to the court. It is clear, as noted in the pre-sentence report, that he regrets his decision resulting in the offences and for further victimizing his own family as a result of his absence. He acknowledges he should have been "more responsible with his firearm".

26Although the pre-sentence report is generally positive, it also notes Mr. Sprague, as evidenced by the matters before the court, appears to have difficulty adhering to court sanctions. There seems to be, according to the writer of the report, a disconnect between reports that the subject is pro-social and a well-respected family member and his re-offending behaviour. The pre-sentence report sets out a series of recommendations should the court consider a period of probation to be an appropriate part of or disposition in this matter.

POSITION OF THE PARTIES

27The Crown seeks a penitentiary term of imprisonment with respect to the charges before the court and advocates for a sentence in the range of four years imprisonment less credit for pre-trial custody. The Crown points out the aggravating factors, the presence of a loaded prohibited firearm in the vehicle and, as well, the ongoing and wilful disregard of court orders with respect to the operation of a motor vehicle by Mr. Sprague all as aggravating factors.

28The defence acknowledges the serious nature of the charges including both the driving offences as well as the firearm offences. The defence points out various mitigating factors and submits an appropriate sentence would effectively be a blended sentence with a period of custody being applied with regard to the June matters in the range of 90 days to be served intermittently. With regard to all other matters, counsel advocates for a conditional sentence. It should be noted there is an electronic technological report before the court in support of that submission which indicates Mr. Sprague would agree to participate in any electronic supervision and the appropriate equipment is in place to provide such supervision should a conditional sentence be granted.

PRINCIPLES TO BE APPLIED

29As noted in Regina v. Hamilton, [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal, sentencing is a very human process and the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and the unique attributes of the specific offender.

30Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. See Regina v. Wright, [2006] O.J. No. 4870, para. 16 and Regina v. D.(D.), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court of Appeal.

31The purpose and principles of sentencing are set out in the Criminal Code in s. 718 and following. Section 718 reads as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

32Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

33The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Sprague and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

34Section 718.2 sets out:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

35In Regina v. Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, at para. 468 Justice Arbour stated:

In deciding on the appropriate sentence, the court is directed by Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case.

36Certainly in this particular case, given the related record, the conduct of Mr. Sprague and the presence of a loaded prohibited firearm with regard to the November 2015 matters, principles to be considered as primary factors are the principles of general and specific deterrence as well as denunciation. Still, the court must keep in mind that rehabilitation is a factor as well given the support that Mr. Sprague has and his own comments to the court. In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

37As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'

38Further:

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A system which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code.

39The purpose of general deterrence in sentencing is to protect the public from the commission of such crimes as that before the court by making it clear to Mr. Sprague and to other persons with similar impulses that if they yield to them they will be met with severe punishment.

40With respect to defence counsel's submission with regard to a conditional sentence, I note the provisions of s. 742.1 of the Criminal Code. There is no dispute that a conditional sentence is statutorily available on the offences before the court and could be imposed as an alternative to or in addition to a custodial sentence, although the Crown strenuously opposes such a sentence. To be clear, the Crown advocates for a sentence that would be beyond the range of sentence where a conditional sentence would even be available.

CASE LAW

41Both counsel have provided case law and I have reviewed the cases keeping in mind that sentencing is an individual exercise and the antecedents of the accused vary case to case as do the facts. I have found the cases provided, however, as well as those to which I have referred, to be of assistance in setting out the principles that the court must consider in dealing with the charges facing Mr. Sprague.

42Dealing specifically with respect to the charge of drive while disqualified, the court considers that court orders are meant to be followed and individuals who fail to do so in a consistent manner must be deterred by a sentence that denounces such conduct. The case law with respect to charges arising as a result of breaches of court orders speak to that issue and specifically to the issues of general and specific deterrence, as do the penalties set out in the Criminal Code for such offences as drive while disqualified.

43The cases provided by counsel address, quite appropriately, primarily the charges relating to the possession by Mr. Sprague of a prohibited, loaded firearm. (See Regina v. Grant; Regina v. Jarsch, 2007 BCCA 189 ; Regina v. Thompson, 2007 ONCJ 342; Regina v. Nuttley, 2013 ONCJ 727 ; Regina v. T.A.P., 2014 ONCA 141 ; Regina v. Smickle, 2014 ONCA 49; Regina v. Sears, 2016 BCSC 965 ; Regina v. MacDonald, 2014 NSCA 102 ; Regina v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773; and Regina v. Ellis, 2016 ONCA 598.)

44The provisions in the Criminal Code dealing with firearm offences and the penalties imposed are clearly directed to negate the risk imposed by the illegal possession of prohibited firearms and loaded prohibited firearms. The seriousness of the charges is, as well, reflected in this particular matter as the Crown has proceeded by way of indictment on all such offences.

45Dealing with the s. 95 offence, in Regina v. Nur, 2015 SCC 15 , [2015] 1 S.C.R. 773, the Supreme Court of Canada determined that the three year mandatory minimum sentence was unconstitutional. Still, in that case the court upheld a penitentiary sentence and noted that most cases within the range of conduct covered by s. 95 could very well result in sentences of three years or more.

46In its decision in Nur, supra, the Supreme Court adopted into its reasons comments made by Justice Doherty in the Court of Appeal decision where at para. 51 and following Justice Doherty characterized the range of offences captured by s. 95.

51 The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

52 There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

47In the gross disproportionality analysis in Nur, the Court of Appeal states at para. 89:

89 The broad scope of the conduct captured by s. 95 makes it difficult to come to any definitive conclusion as to the relative gravity of the conduct proscribed by s. 95. Unlike other firearm provisions that carry a significant mandatory minimum sentence for a first offence, there is no common denominator in the conduct captured by s. 95 that allows one to say that, because of the harm involved, a s. 95 offence is a very serious criminal offence. Indeed, Parliament has recognized that s. 95 offences are not inherently serious crimes by providing that the Crown can proceed summarily, in which case there is no mandatory minimum and the full panoply of sentencing options, including discharges, are available to the sentencing judge.

48The various case law that has been provided clearly and appropriately addresses the serious nature of firearm offences. The reasons are obvious as firearms inherently raise concerns for the safety of the community. Indeed, in Regina v. Nur the Supreme Court notes that firearm-related offences are serious crimes and Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through the combination of strict licensing and registration requirements not only under the Criminal Code but also under the Firearms Act.

49In the case of Mr. Sprague, defence counsel submits, and the Crown takes no issue with the fact that Mr. Sprague was initially properly licensed to possess the firearm in question in its original state pursuant to the provisions of the Firearms Act. The reduction in the length of the barrel acknowledged to have been done by Mr. Sprague, however, effectively made the weapon a prohibited firearm. In Nur the Supreme Court sets out at paras. 8, 9 and 10 the restrictions with respect to prohibited or restricted firearms.

[8] Anyone who wishes to possess a firearm must obtain a licence under the Firearms Act. Although one can obtain licences that authorize the possession of prohibited or restricted firearms, stringent criteria must be met: Firearms Act, ss. 7(2) and 12. The Firearms Act imposes controls on places where a person who has a licence can possess the restricted or prohibited firearms: s. 17. A Chief Firearms Officer may deny a person a licence in the interests of public safety: s. 5. A licensed person must obtain authorization to transport firearms from one designated place to another: s. 19. In addition, the Act requires that a person obtain a registration certificate for the firearm: s. 12.1.

[9] Restricted or prohibited firearms must be stored unloaded, with a secure locking device and in a locked container or in a vault, safe or room that has been constructed or modified for the secure storage of firearms. Ammunition may not be stored with the firearm unless both the ammunition and the unloaded locked firearm are stored in a securely locked room or container that cannot be readily broken open or into: Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, SOR/98-209, ss. 6 and 7. The firearms may only be loaded in a place where they can be lawfully discharged: s. 15.

[10] These licensing and registration requirements under the Firearms Act are reinforced through a series of Criminal Code offences that criminalize the possession of firearms where the possession contravenes the terms and conditions of the Firearms Act.

50It is quite clear from the case law that the provisions of the Criminal Code dealing with the firearm charges are meant to reduce the risk and particularly the unlawful possession of loaded restricted or prohibited firearms. The cases seem to focus on the risk apparent in any particular case and a number of factors are to be considered, including the nature of the firearm itself, the circumstances in which the firearm was located and the criminality, if any, that is attached to the possession of the firearm resulting in additional related charges.

51It should be remembered, however, as noted in Regina v. Thompson, 2007 ONCJ 342 at para. 12:

It may well be that the circumstances and the purpose of the possession are such that there is no connection to any criminal offence or any intended use of the firearm. This may somewhat mitigate the risk of the possession. Then again, it is necessary to recognize that regardless of the motive of the individual with the loaded firearm, the mere fact that the offender has ready access to it poses a danger to others in the vicinity.

52In Regina v. Smickle, 2014 ONCA 49, at para. 19 the Ontario Court of Appeal stated: "Most s. 95 offences will attract a penitentiary term even for first offenders" and even "less serious" versions of the crime that are typically committed "will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders." (See also Regina v. Nur at paras. 107 to 109 and 206 affirming on this point; as well as Regina v. Dufour, 2015 ONCA 426 at para. 9.)

53Finally, in Regina v. Ellis, a recent decision of the Ontario Court of Appeal released on August 4, 2016 (see 2016 ONCA 598), the court again in dealing with the seriousness of crimes relating to firearms noted at para. 78 as follows:

Parliament's enactment of mandatory minimums for gun crimes reflected a public consensus that steps must be taken to reduce the incidence of gun crime in Canada. Although the Supreme Court has found mandatory minimums to be grossly disproportionate in hypothetical gun licensing scenarios, it emphasized that courts should continue to impose weighty sentences for truly criminal behaviour involving guns: R. v. Nur, supra, at para. 120. There is no inflationary floor at work in this case. Rather, recent sentences reflect Canadian society's intolerance for gun crime and are in keeping with the direction given by the Supreme Court of Canada.

AGGRAVATING FACTORS

54The aggravating factors in this matter are as follows:

1. Mr. Sprague does not present as a first-time offender. His record is before the court. With respect to the June 2015 charges Mr. Sprague acknowledges he was effectively subject to two court orders which prohibited him from operating a motor vehicle. One as a result of the finding of guilt in September of 2013 and another as a result of the finding of guilt on a charge of drive while disqualified in early 2015.

At the time of these offences, notwithstanding the previous court orders and apparently having been before a court a few months earlier, not only was Mr. Sprague operating a motor vehicle in contravention of prohibition orders, he was operating that vehicle badly and while on probation. The circumstances show that Mr. Sprague at that time had little regard for court orders, had not been impacted significantly or at all by the previous appearances in court for driving offences, and certainly demonstrated a cavalier approach to sanctions imposed by the court.

2. The incident in June involves not only the operation of the vehicle but the involvement in an accident following which Mr. Sprague not only misleads the operator of the dump truck which he struck while operating his vehicle, but also the police who subsequently investigated. The obstruction involved efforts on the part of himself and his partner to mislead the police to believe that Ms. Dietrich was operating the vehicle at the relevant time. The obstruction led to further investigation and it was only the diligent work of the police that ultimately provided the evidence that Mr. Sprague was in fact the operator of the vehicle. It was not a voluntary change of heart on the part of Mr. Sprague that led to his acknowledgement he was the driver.

3. Mr. Sprague was processed on those matters and released. At that time he was subject not only to the orders of prohibition, but also a probation order and now a recognizance. Mr. Sprague was still undeterred and on November 7, 2015 was stopped in a traffic stop in breach of at least three court orders, which breaches I find were willful.

4. Mr. Sprague was subject to a valid traffic stop for driving well in excess of the speed limit in a rented vehicle. Within that vehicle the police located open liquor, clearly evidence of recent consumption, one gram of crystal methamphetamine, a dangerous and insidious drug, as well as, most importantly, the prohibited firearm found under the front seat of the vehicle. That firearm, notwithstanding Mr. Sprague's indication that it was lawfully in his possession initially, had been altered to make it a prohibited firearm. It was loaded with ammunition not only in the magazine but also in the chamber, and it was concealed and ready for use. The firearm presented in a manner that was dangerous, ready for use and capable of causing injury or worse.

5. The firearm found in the motor vehicle was found in circumstances where Mr. Sprague obviously had no regard with respect to court orders, but also was found in the presence of alcohol and a drug. The whole scenario speaks of concerning circumstances including the possibility, although there is no evidence as to criminality with respect to the possession of the firearm per se, that Mr. Sprague's judgment could be compromised. The presence of the firearm in the circumstances posed a safety issue whether its use would be unintentional or otherwise at the very least. I consider this much more than a regulatory type of breach. Clearly Mr. Sprague's actions show a complete lack of the responsibility and judgment required of a gun owner, not only in the alteration of the firearm but also in placing it where he did ready for use in a concealed manner in the vehicle.

6. With respect to the breach in July 2016, Mr. Sprague's actions on that date again indicate he has difficulty complying with court orders. He had been arrested on the November charges and after spending a considerable period of time in custody was released on January 28, 2016. Notwithstanding the terms of that release, he was violating the term with regard to house arrest. Even though the circumstances of that particular offence pale in comparison to the circumstances, particularly with respect to the November 2015 charges, they still speak of Mr. Sprague simply not seeming to get it with respect to compliance with court orders. He, of course, has paid for that breach significantly as he has now been in custody since July on all matters.

MITIGATING FACTORS

55The mitigating factors in this case are as follows:

1. Mr. Sprague has pled guilty to the various charges before the court. The charges are serious and the consequences significant, all to the knowledge of Mr. Sprague. Notwithstanding that, he has accepted responsibility as evidenced not only by his pleas but otherwise, and saved the court considerable time as well as not inconveniencing a number of witnesses on matters that could have involved a preliminary and/or a trial. He is to be given credit for such pleas.

2. Although there is a record, the record contains no entries at all with regard to any violent conduct or related offences with respect to the possession of the firearms. Indeed, it would appear that the firearm found within the vehicle in November 2015 was originally in the lawful possession of Mr. Sprague and he was licensed to be in possession of such a firearm. It was only after alteration that the weapon became a prohibited firearm and continued to be in his possession with his knowledge that he had no authority or ability to possess the rifle in that form.

3. As noted, the pleas of guilty are a sign of remorse, and I am also satisfied in view of the comments Mr. Sprague made to the court as well as the contents of the pre-sentence report that Mr. Sprague is remorseful otherwise and that remorse is genuine and sincere.

4. The pre-sentence report can be reasonably classified as a positive pre-sentence report. Mr. Sprague is involved in a committed relationship with Ms. Dietrich. They have a child together and Ms. Dietrich's child from a previous relationship resides with Mr. Sprague and Ms. Dietrich when he is not in custody. That child has special needs. Mr. Sprague seems to be a devoted parent, both to that child as well as his biological child and the material before the court speaks highly of his dedication to his family.

5. Mr. Sprague has committed himself to employment within the community. His employers speak highly of him and in addition to his employment he also operates a farming enterprise with his partner which appears to be doing well. His absence from that business has impacted the family and his conduct has not only victimized his liberty, but has also his family. Other than the conduct that has brought him before the court on occasion, which seems to be attributable, at least in part, to substance and alcohol abuse he has been a hardworking individual living and contributing to the community without issue.

6. Although certainly not a youthful first-time offender, nor indeed perhaps not even youthful given the fact that he is soon to be 35 years of age, he is still relatively young and all the material before the court filed in support of Mr. Sprague, including the pre-sentence report, would indicate that rehabilitation is a very live issue.

7. Fully appreciating the circumstances under which the firearm was found the Crown has not demonstrated there was any use or contemplated use of that firearm with respect to criminal conduct other than having the possession of the prohibited firearm itself. There is no evidence that the firearm was ever used or intended to be used in any other criminality as is more often than not the case in the various sentences that I have been referred to and reviewed.

8. Mr. Sprague I am told, and accept, has been in actual pre-trial custody a total of 177 days. This represents the time in custody on all matters including the continuous custody since Mr. Sprague's arrest on July 5, 2016. There is no argument taken with an enhancement of this time in pre-trial custody on a 1.5 to 1 basis for each day spent in custody and accordingly on that basis the enhanced credit for pre-trial custody is 266 days, approximately nine months. In addition, and fully appreciating that Mr. Sprague was breached on the recognizance imposed on January 28, 2016, I consider that breach to be rather technical in nature given the circumstances as confirmed by both the Crown and the defence. I am of the view that Mr. Sprague should be given some credit for complying with very restrictive bail terms, including a curfew which was effectively house arrest except for limited purposes. (See Regina v. Downes, [2006] O.J. No. 555.) I am prepared to give him credit for a further month towards the enhanced pre-trial custody, making a total of ten months enhanced pre-trial custody.

SENTENCE TO BE IMPOSED

56This is a troublesome sentencing. There are both mitigating and aggravating factors with respect to all matters. I have also considered all issues carefully and specifically with respect to the possession of the firearm. I fully appreciate that the possession on the date in question, although illegal, shows no other signs of criminality. I also appreciate that the firearm is acknowledged to have been in the lawful and authorized possession of Mr. Sprague initially and that possession was compromised by the alteration of the rifle to make it effectively a prohibited weapon. The sentence is further made difficult by the continuing conduct of Mr. Sprague in operating vehicles in violation not only of prohibition orders, but acting otherwise contrary to the terms of a probation order and a recognizance. One wonders what was going through Mr. Sprague's mind when he was operating the vehicle in November, not only in the circumstances in which it was being operated given the contents of the vehicle, but it also seems to have escaped Mr. Sprague that he was rather fortunate to have been out of custody on the June charges and indeed on the initial drive while disqualified back in early 2015.

57The totality of the sentence must reflect not only issues of general and specific deterrence, but also denunciation. It also must address rehabilitation and, equally important, the court must exercise the principle of restraint. I am of the view that such sentence must be served in a traditional setting in its entirety. I am satisfied the blended sentence proposed by defence counsel would not, particularly with respect to the issue of a conditional sentence, be available given the length of the sentence and even if it was available would be totally inappropriate and would not adequately address the principles of sentencing noted previously. Mr. Sprague presented not only as a danger to the safety of the community on November 7, 2015, he also was acting out once again in violation of various court orders. It is quite clear that because of his past conduct Mr. Sprague has a difficult time complying with court orders at all and the court cannot be confident that such a sentence, even if appropriate, would be honoured by Mr. Sprague.

58All that said, I am satisfied the total sentence prior to crediting the time served in this matter is one of 26 months imprisonment. I am satisfied that on the June matters the Crown, although originally suggesting 90 days, when further submissions were received from counsel, acknowledged that a period of custody of 60 days would be appropriate on those matters. I keep in mind with respect to those matters, and particularly with respect to the count of obstruction, the issue of parity and that Ms. Dietrich, who presumably had different antecedents from Mr. Sprague but was equally involved in the attempt to mislead the police officer, received on her disposition a fine of two hundred dollars.

59With respect to the events of November 4, 2015, I am satisfied that the global sentence with respect to all of the counts arising on that date is one of two years imprisonment. After crediting enhanced pre-trial custody and the credit attributable to the house arrest to the 26-month period of custody, that leaves a remnant of the sentence still to be served by Mr. Sprague in the amount of 16 months imprisonment moving forward. That period of custody will be followed by a period of probation for three years. There as well will be ancillary sentencing orders as requested by the Crown. I propose to credit all of the enhanced custody to the charges arising as a result of the offences on November 4, 2015.

60The sentence then will be as follows:

1. On the charge of operating a motor vehicle while disqualified from doing so relating to the events of June 19, 2015, there will be a sentence of two months imprisonment. In addition, there will be a prohibition in place on that matter for three years. Mr. Sprague will be prohibited from operating a motor vehicle anywhere in Canada for a three year period which will run concurrent to any period of suspension that might be imposed by the Highway Traffic Act.

2. On the charge of obstruction, there will be a sentence of one month in custody concurrent to the two month period.

3. With respect to the charges from November 2015, for the sake of the record I would make it clear the total sentence with respect to all charges arising out of that singular event on November 7, 2015 prior to crediting any time for enhanced pre-trial custody is one of two years imprisonment. I am of the view that the weapon offences would attract a sentence of 18 months with a consecutive sentence of six months on the drive while disqualified, with all other sentences imposed on the remaining charges to be served concurrently or stayed.

(a) With that in mind, there will be a sentence of imprisonment on Count #2, being the possession of the loaded prohibited firearm, in the amount of 14 months after crediting time served together with a period of probation to follow of three years, which sentence is to be served consecutively to the sentence with respect to the June matters.

(b) With respect to possession of the prohibited firearm without being the proper holder of a licence, I am of the view that the circumstances with regard to that matter arise out of the same circumstances as possession otherwise and that count will be stayed pursuant to Regina v. Kienapple, 1 S.C.R. 729.

(c) With respect to Count #7, being the possession of the crystal methamphetamine, there will be a sentence of one month concurrent together with a three year period of probation concurrent.

(d) With respect to the count of drive while disqualified, after crediting time served there will be a sentence of six months to be served concurrently with a concurrent period of probation of three years as well as a concurrent prohibition from driving a motor vehicle anywhere in Canada for a period of three years.

(e) With respect to the count of being an occupant of a vehicle knowing there was a firearm present in the vehicle, there will be a sentence of three months concurrent together with a concurrent three year period of probation.

4. With respect to the breach of recognizance, I am satisfied that the appropriate sentence to be imposed on that matter is 15 days imprisonment to be served concurrently with all other time and to be also followed by a three year period of probation.

61The total sentence then still to be served moving forward is 16 months to be followed by a period of probation of three years on all counts including the June counts. In addition, there is a three year period of prohibition from driving and there will be further ancillary orders. With respect to the s. 109 order with regard to the possession of the prohibited firearm, there will be such an order under s. 109(2)(a) for a period of ten years and (2)(b) for life. Any forfeiture order with respect to the firearm and the ammunition will be in place, as well as DNA orders on any and all primary and secondary designated offences requiring a sample of Mr. Sprague's DNA to be taken in accordance with the provisions of the Criminal Code.

62I might note I have not imposed the sentence that I have without careful consideration and full appreciation, not only of the aggravating factors, but also the mitigating factors present. I appreciate that the sentence imposed will undoubtedly have impact on Mr. Sprague's family. In crafting the sentence that I have I have tried to address all the principles that are required to be addressed as well as the circumstances of the offences and the offender. I have also considered, among other factors, the impact this sentence will have on Mr. Sprague's family as well as himself.

63With respect to the probation order, the length of the probation order will be three years and the terms of the order will be as follows:

• Mr. Sprague will keep the peace and be of good behaviour.
• He will appear before the court when required.
• He will advise the court or the probation officer in advance of any change of name or address or employment or occupation.
• He will report to Probation within two working days of his release from custody and thereafter be under the supervision and direction of the probation officer.
• He will abstain absolutely from the purchase, possession or consumption of drugs except in accordance with a medical prescription.
• He will abstain from owning, possessing or carrying any weapon, including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code.
• He will attend and take part in any counselling or programming that may be recommended by his probation officer for any areas identified by his probation officer and specifically with respect to substance abuse or alcohol abuse. He will provide his probation officer with an authorization to permit his probation officer to liaise with any counsellor under whose care he might be to monitor his course of counselling and he will also provide his probation officer with proof of participation in such programming as directed as required.
• He will seek and maintain full-time employment.
• He will not have the care or control of a motor vehicle unless otherwise authorized to do so.
• He will have no contact or communication directly or indirectly with anyone specifically named by his probation officer.

64In summary then, there is a further period of imprisonment of 16 months to be followed by a period of probation for three years. A three year prohibition is in place with respect to driving a motor vehicle and there will be, as noted, the appropriate orders for DNA, s. 109 and forfeiture. All other charges against Mr. Sprague are to be marked withdrawn.

Released: September 30, 2016

Signed: "Justice G. F. Hearn"