R. v. Gibbins, 2023 ONCJ 604

ONTARIO COURT OF JUSTICE DATE: 2023 09 27 COURT FILE No.: City of Dryden 190504

BETWEEN:

HIS MAJESTY THE KING

— AND —

EDWARD RAYMOND GIBBINS

Before Justice D.J. MACKINNON

Submissions on Sentence Heard on July 17, 2023 Sentencing Decision released on September 27, 2023

Counsel: T. Schuck, counsel for the Crown R. Amy, counsel for the accused Edward Raymond Gibbins

MACKINNON J.:

1Edward Raymond Gibbins entered pleas to a number of counts regarding an incident which occurred on December 12, 2018 in a rural township near Dryden. The counts to which pleas were entered were:

a. knowingly uttering threats to Travis Wintle, Michael Thompson and Edward Jason (Nathan) Gibbins Jr. to cause death to them contrary to s. 264.1(1)(a) of the Criminal Code;

b. confining Michael Thompson, Edward Jason (Nathan) Gibbins Jr. and Katelyn St. Pierre contrary to s.279(a) of the Criminal Code;

c. using a firearm, to wit a Remington 870 shotgun in a careless manner contrary to s.86(1) of the Criminal Code; and

d. with intent, did discharge the said firearm while being reckless about endangering the life or safety of another person contrary to s.244.2(1)(b) of the Criminal Code.

Facts

2The agreed facts of the events leading to these pleas are set out herein.

3Travis Wintle, a scrap metal dealer and his helper Michael Thompson attended at a rural property owned by Edward Gibbins. With them was the son of the accused Edward Jason (Nathan) Gibbins Jr. and his girlfriend Katelyn St. Pierre.

4Edward Jason (Nathan) Gibbins had apparently sold some of the derelict vehicles behind the residence and they had come to remove them. The parties were confronted by the accused who came out of the residence with a Remington pump action shotgun. The accused disputed the ownership of the vehicles. He threatened repeatedly that he was going to kill the victims or hold them, especially the female, for hostage. He shouted, “One of you is going to die today.”

5The accused attempted to fire the shotgun but the safety was on. He took the safety off and tried to fire again but no round was in the chamber. On a third try the accused did shoot off the firearm and the projectile went over his son’s head but was reported by Mr. Wintle as going by his head. During this period the police had been called and when they arrived, the accused was arrested and the gun seized which had two live rounds in the magazine. The accused was under the influence of alcohol and drugs.

Positions on Sentence

6The Crown position on sentence is that there should be a custodial sentence of four years including three to four years that should be ordered for the count under s.244.2(1)(b), one year concurrent on the forceable confinement, six months concurrent on the remaining counts. The Crown also seeks DNA, a s.109 weapons prohibition, forfeiture of the items seized and an order under s.430.21 for no contact.

7The Defence position is that the sentence should be a conditional sentence order of two years less a day followed by probation, with credit for time served and a Downes credit for the fact that Mr. Gibbins has been on release conditions for over five years. He has had no breaches during that time.

Information for Sentencing Purposes

8The accused was 61 years of age at the time of the incident and is now 66 years of age. He has no criminal record.

9Filed for review by the Court are the following:

a. September 15, 2019 – Report of Dr. Robert McMaster, Forensic Psychiatrist;

b. July 27, 2020 – Note from Dr. D. Goulet, Family Physician;

c. September 27, 2021 – Note from Dr. D. Goulet, Family Physician;

d. December 9, 2021 – Report of Dr. Jeff McMaster, Consultant in Forensic Psychiatry.

e. September 26, 2022 – Pre-Sentence Report from the Ministry of Solicitor General, J. McKenzie;

f. Undated note from the wife of the accused, Terri Gibbins;

g. Statement on Restitution from Michael Thompson;

h. Statement on Restitution and Victim Impact Statement from Nathan Gibbins;

i. Statement on Restitution and Victim Impact Statement from Katelyn St. Pierre.

Sentencing Parameters

10The most serious of the offences which the accused has plead to is s.244.2(1)(b) which is worded as follows:

Discharging firearm — recklessness

244.2 (1) Every person commits an offence

(a) who intentionally discharges a firearm into or at a place, knowing that or being reckless as to whether another person is present in the place; or

(b) who intentionally discharges a firearm while being reckless as to the life or safety of another person.

11The Criminal Code in s.244.2(1)(b) captures the fact situation in this case. It is clear that the accused intended to shoot the firearm as evidenced by his repeated actions to do so. The accused was, at the very least, reckless as to the safety and lives of the three victims. Today, he says that he meant to shoot over the heads of the victims as a warning shot, however the facts underlying his plea include his verbal threat that “one of you is going to die today” and his threat to take hostages. It is only necessary in these circumstances that Mr. Gibbins discharged the firearm being reckless as to the safety of others but his words show a clearer intent here.

12In November of 2022, Parliament amended the penalty associated with this charge to remove the mandatory minimum sentence of four years for conviction under s.244.2(1)(b). It now reads:

s.244.2(1)(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of

(i) in the case of a first offence, five years, and

(ii) in the case of a second or subsequent offence, seven years; and

(b) in any other case, to imprisonment for a term of not more than 14 years.

13A restricted or prohibited firearm was not used in this case. The maximum penalty under s.244.2(1)(b) is fourteen years.

14Prior to the amendment, the case of R. v. Oud 2016 BCCA 332 established that a sentence of four years is not necessarily grossly disproportionate for a conviction under s.244.2. Justice Saunders stated:

50The question really is whether we can conceive of an offence under s.244.2 in which a four-year sentence would be grossly disproportionate. This is not to ask whether a four-year sentence would never be considered unfit or demonstrably unfit for purposes of a sentence appeal, but whether a four year sentence would be so unfit as to rise to the level of gross disproportionality. Some guidance in this may be taken from Nur itself. In Nur, a 40 month sentence for a 19-year-old first offender who merely possessed a loaded firearm in a public place for a short period of time and did not discharge it or use it in a threatening manner, was not demonstrably unfit. Remembering the modern approach to gun offences, I cannot conceive of an offence under s.244.2 for which the mandatory minimum penalty would be said to be cruel and unusual punishment.

15The Crown position in this case of three to four years is not necessarily inappropriate for a conviction under s.244.2.

Proportionality

16The sentence to be imposed today on Mr. Gibbins must be just and appropriate. The court must consider the objectives of denunciation, deterrence, rehabilitation and when necessary, the separation of the accused from society.

17The critical characteristic of s.244.2(1)(b) is that a firearm, a deadly weapon which can be used to kill a person, is fired regardless of the safety of others. It is not necessary that the firearm be shot at a person, only that its discharge is reckless considering the lives of others.

18In this case, Mr. Gibbins fired a shotgun at a group of people with the shot going close to them.

19The proportionality of a sentence means that it must be fair and just to the offender. The amount of punishment cannot be excessive. It must be equal to the gravity of the offence and to the offender’s moral blameworthiness.

20In the case of R. v. Hill, 2023 SCC 2 the court said the following:

112Proportionality is based in fairness and justice for the offender and does not permit unjust punishment for the “sake of the common good” (Priest, at p. 547: see Ipeelee, at para. 37). While society can be understood to be deeply concerned with the criminal behaviour which gave rise to the conviction, people are also committed to fair and just punishments which are not cruel, unusual or grossly disproportionate to the sanction which is deserved.

21In arriving at a fair and just sentence, a court must consider the gravity of the offence and the moral culpability of the accused.

Gravity of the Offence

22The gravity of the offence requires an examination of the seriousness of the penalty determined by parliament and the specific features of the crime.

23The fact that the offence is indictable only, shows the seriousness with which the legislators of the country considered this offence. The Crown cannot choose to prosecute the offence in a lesser manner such as a summary conviction offence.

24The maximum time available for a sentence for this offence of fourteen years is considerable in comparison with other offences under the Criminal Code. The range of sentence for indictable offences in the Criminal Code can go from assault with a sentence of up to five years, assault with a weapon up to ten years and assault by wounding or maiming up to fourteen years. Manslaughter under s.236 where a firearm was used has a minimum sentence of four years to life imprisonment.

25A maximum sentence of fourteen years means that this is a serious offence, involving a threat to the lives of citizens. The focus of the Criminal Code is the protection of citizens. This offence has been established to punish actions which endanger the lives of Canadians and to using firearms in this way. It is a grave offence under the Criminal Code because it is life-threatening.

Moral Culpability

26The second issue for assessment is the moral culpability of the defendant.

27The illustrative part of the facts in this case that establish a higher moral culpability are the following:

a. The accused would not be deterred from shooting the rifle at the victims and kept trying until he was able to. This shows a clear purpose;

b. The reason for the discharge of the firearm was to deal with a civil matter of a dispute over property;

c. There is no evidence that anyone threatened the accused in any way;

d. The firearm was not only loaded but was fired at people.

e. The shot was noted by the victims as going close to their heads;

f. The accused confirmed in his words that he intended to hurt the victims or possibly hold them hostage;

g. He kept the victims from leaving the scene;

h. The Victim Impact Statements demonstrate a tremendous impact on the psychology and emotional stability of the victims.

28The defendant has justified his actions by saying that he was defending his property. There is no evidence before the court that the derelict vehicles actually belonged to him. In fact, the restitution request of Edward Jason (Nathan) Gibbins suggests that he owned $5,000 worth of vehicles in the yard. Even if an argument of the defence of property was accepted, which it is not, the use of a firearm for the purpose of settling property disputes cannot be supported.

29In any case, two of the victims worked for a legitimate business. There is no evidence that his verbal objections could not have resulted in the intended result; that is, that the tow truck left. The fact is that the accused confined the victims and did not allow them to leave. He does seem to have acknowledged to the PSR writer that he could have called the police.

30The other issue however is the alcoholism of the defendant. His wife indicates that, after a fight with his siblings over the family farm, Mr. Gibbins was successful in obtaining the ownership of this location and soon thereafter began to spend all of his time there in the farmhouse drinking alcohol. He is an admitted alcoholic.

31I recognize that drinking alcohol is a voluntary action and the disease of alcoholism creates a persistent need for the substance. Being an alcoholic is not an excuse for the actions of the accused that day, but it does represent a slight reduction in my view in moral culpability due to some diminished capability for decision-making.

32In my view these factors are insufficient to reduce the high moral culpability of the accused to any significant degree.

Mitigating and Aggravating Factors

33There are a number of mitigating factors to consider in sentencing Edward Gibbins:

a. He has entered a plea of guilty which can be considered as some evidence of remorse, and which has meant that the witnesses do not need to testify at trial;

b. The accused has no criminal record, thus showing that he does not have a propensity for criminal activity;

c. He did surrender to the police;

d. During his time on release since 2018, the accused has been compliant and has not committed any further offences;

e. The accused no longer consumes alcohol and is not using opioids;

f. Since the incident, it appears from the medical evidence submitted that there might have been some deterioration of the cognitive abilities of the accused, such that his finances are handled by his wife under a Power of Attorney;

g. His son is alienated from him and unlikely to reconcile.

34The aggravating factors in this case are:

a. The accused continues to justify his actions on the basis that he was defending his property. This does not support rehabilitation.

b. Any of the persons involved could have been killed by the accused;

c. The accused not only pointed and shot the rifle but terrorized the victims by threatening to kill them or to hold them hostage;

d. There has been a deep impact on the feeling of security and safety of the victims;

e. The accused has not engaged in intense alcohol treatment or programming.

Principles to be Applied

35The reckless use of a firearm is one of the most deadly and feared actions in our society. Higher courts have made it clear that denunciation and deterrence are to be the focus of any sentence.

36Because the accused does not have a criminal record and the firearm was not being used in the course of a criminal organization action such as drug dealing, the sentence should be on the lower end of the scale from the fourteen year span. On the other hand, the high moral culpability of the accused would not warrant a great reduction of his sentence from about three to four years.

37There are two other factors I must consider before setting the sentence for Mr. Gibbins for the offence under s.244.2(1)(b).

38Mr. Gibbins has been on bail conditions since 2018 and has been compliant. The conditions he has been under may be considered in regard to a reduction of a set sentence on the basis of the Downes ( ONCA) case. On the whole, however, I do not find the terms of his release to be oppressive except for the curfew of 7 pm to 7 am. To my knowledge he did not move to seek a change of the terms.

39The medical evidence filed includes a report from Robert McMaster, a forensic psychiatrist, dated September 14, 2019. His report says:

Mr. Gibbins’s presentation is likely the culmination of numerous precipitating factors. He has a lengthy and entrenched alcohol use disorder and uses opioids for chronic pain. This pain has not improved. He also has a history of significant head injuries and has cardiovascular risk factor that may lend themselves as etiologically agents for cognitive decline. He has a significant family history of depression and alcohol use disorder that may predispose him to such difficulties.

From a diagnostic perspective based on his poor mood, insomnia, excess guilt, hopelessness towards the future, suicidal ideation and low energy along with anxious features he meets criteria for a diagnosis of Major Depressive Disorder, Recurrent Episode, with Anxious Distress. In addition, it is quite clear that Mr. Gibbins alcohol use has contributed enormously to his current mental state and he meets criteria for Alcohol Use Disorder, Severe, in Early Remission.

40This report is somewhat dated as the evidence before the court on sentencing suggest that Mr. Gibbins stopped his alcohol consumption and opioid use since that time. Of course, these factors could return after supervision is no longer present. Nonetheless his presenting diagnosis at the time were major depressive disorder described as recurrent episode with anxious distress and severe alcohol use disorder. This helps explain his behaviour.

41There was a further assessment provided by Jeff McMaster, a forensic psychiatrist on December 9, 2021. He found that the major depressive disorder of the accused was in remission as was his use of opioids and alcohol. He summarizes as follows:

Of concern, is that Mr. Gibbins continues to have instability of his mental state, in the context of the use of very large amounts of opioids, benzodiazepines, and caffeine. He continues to have pain (causing distress), poor sleep, and intermittently (typically by afternoon) becomes confused. There is concern about progressive cognitive decline. While there is no evidence to suggest that these factors have contributed to risk of aggression, they could contribute in the future, by way of disinhibition, agitation, perceptual disturbance, and poor decision-making.

42This psychiatrist also expresses concerns about the continued resentments of the accused toward his son and his wife. He says:

…While with the undersigned he voiced, “terrible regrets” about the index offence. Mr. Gibbins minimized his actions, stating that he shot the gun in the air, when other information indicated that it missed a victim’s head by two feet. He also appears to have poor insight into the deleterious effect of his excessive medication and substance use (including, but not limited to caffeine, opioids, and benzodiazepines) on his mental state.

43As to his cognitive state, the assessor says that there are, “Cognitive issues of unclear but probable multifactorial etiology, including excessive use of medications and substances (caffeine). At times, this may lead to confusion, and a near delirious state.” He recommends further investigation of the cognitive abilities of the accused.

Conditional Sentence Order or Jail

44The Crown seeks a jail custodial sentence for these offences and the accused proposes a Conditional Sentence Order to allow the accused to serve his time in the community.

45I agree with the Crown that this type of charge, given its seriousness and risk to life, calls for a custodial period in jail. The question is whether I should diverge from a jail sentence to order a CSO in Mr. Gibbins’ case.

46I have considered the submissions of the accused that nothing is to be gained by a jail sentence and that, considering his mental health issues and his compliance since 2018 that a Conditional Sentence Order is more appropriate.

47However, while rehabilitation is always a consideration, this charge calls primarily for a denunciatory and deterrent sentence. Shooting a firearm at others is a crime of the highest gravity and deserving of a jail sentence.

48In this case it appears that there is less likelihood of a recurrence of such events as Mr. Gibbins does not have a prior criminal profile, but the other possibilities set out in the reports are not optimistic. In the report of Dr. Jeff McMaster, the risk assessment says:

Based on the HCR-20 V3, and structured professional judgement, Mr. Gibbins appears to be at low risk of imminent violence, but there is moderate to high concern about long term risk in the scenario of: 1) his mental state continues to deteriorate, 2) continuing to use high amounts of medications and substances 3) relapsing to alcohol use, 4) being in a living situation that is upsetting to him and destabilizing and 5) not having sufficient professional support and supervision.

49In other words, any of these factors could trigger further behaviours of the accused in the future.

50In regard to the cognitive abilities of the accused, there is no assessment that he actually has a deterioration in his cognitive abilities. In fact, I note that in the PSR two tests of the Montreal Cognitive Assessment tool did not show a difference in cognitive ability which would usually signify a deterioration. It is only a suspicion at this time.

51I am not convinced that the accused has gained any insight into his behaviours and this offence, or that he has accepted that his action was wrong.

52Sentencing for an offence under s.244.2(1)(b) must focus on deterring the use of a firearm in any circumstances which endanger members of the public. I am not convinced that jail should not be the appropriate disposition.

Decision

53The court must determine a fit and appropriate sentence based on the facts in this case and the characteristics of the accused as seen through the lens of deterrence and denunciation and the other factors set out in s.718 of the Criminal Code.

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.

54I have determined that a jail sentence is necessary in this case. The crime of shooting a firearm at others, and in this case with the articulated purpose of hurting them, is not an acceptable action and is specifically denounced under s.244.2(1)(b) of the Criminal Code. No use of a firearm in similar circumstances can be encouraged by a lesser penalty than jail.

55It may seem that Mr. Gibbins is deterred by the results of his actions and is on the road to rehabilitation. As set out above I am not convinced that a person who harbours resentments such as Mr. Gibbins and justifies the use of firearms to resolve disputes, is necessarily deterred. Even if such is the case, that he does not want to commit similar acts in the future because of the penalties involved, it is also general deterrence that is needed in this case.

56General deterrence requires consideration of the view of other persons who similarly might consider that resolution of disputes should be done by use of a firearm. Anyone using a firearm to threaten or hurt another person needs to see by Mr. Gibbins’ sentence that courts and the Canadian public take these actions extremely seriously.

57The particular mitigating factors in this case, as set out above, do not require as lengthy a period of incarceration as suggested by the Crown and the past minimum sentence. The court is required to fashion a sentence that takes the personal situation of Mr. Gibbins into account: his lack of a record, his compliance with the conditions of his release for five years, his mental health and addiction issues and his progress in regard to alcohol and opioids.

58In regard to the charge under s.86(1), this again is a firearm offence which is a serious situation impacting on the safety of members of the public.

59While the charge of unlawful confinement is serious, I am not convinced that the facts in this case are the more egregious that would require a longer period of incarceration. The confinement was part of the entire action that day.

60I find the threats made to the victims to be particularly concerning. It is clear from the Victim Impact Statements that the verbal threats made to kill them or to take them hostage have had a long term effect. These threats were coupled with the firearm being presented and then used. A sentence for this offence should be consecutive.

61Considering all of the circumstances of the case, the global sentence of Edward Gibbins Sr. is sixteen months, subject to reductions, and followed by probation. The specific sentence is as follows:

Jail Sentence

1. On the charge of discharging a firearm recklessly contrary to s.244.2(1)(b) the sentence is fourteen months in custody, subject to reductions I shall indicate shortly;
2. On the charge of using a firearm in a careless manner contrary to s.86(1) of the Criminal Code the sentence is ten months concurrent;
3. On the charge of unlawful confinement contrary to s.279(2) of the Criminal Code, the sentence is six months concurrent;
4. On the charge of uttering threats to the victims contrary to s.264.1(1)(a) of the Criminal Code the sentence is two months consecutive;
5. The accused shall receive credit for 119 real days in custody at an enhanced rate of 1/1.5 resulting in a reduction of 179 days;
6. The accused has been on release terms since April 10, 2019 which includes a curfew of 7 pm to 7 am each day. I recognize this as an onerous condition over the time of his release and grant the accused a Downes credit of 70 days;
7. The jail sentence is 231 days on a go forward basis.
8. The accused is ordered pursuant to s.743.21 to have no communication while in custody with Travis Wintle, Michael Thompson, Edward Jason (Nathan) Gibbins or Katelyn St. Pierre.

Ancillary Orders

9. There will be an Order for the DNA of the accused related to the charges under s.244.2(1)(b) and s.279(2) which are primary designated offences;
10. Pursuant to s.109(3) of the Criminal Code, the accused shall be prohibited for life from possessing any firearm, crossbow, restricted weapon, ammunition or explosive device for the offences under s.244.2(1)(b) and s.86(1);
11. The firearms seized are to be forfeited to the Crown for destruction;

Probation

12. Following the jail sentence, the accused shall be placed on probation for the charges under s.244.2(1)(b) and s.264.1(1)(a) for a period of two years on the following terms and conditions:

    a. To report to a probation officer by telephone within 24 hours of his release and thereafter as required;

    b. To live in a residence approved by the probation officer;

    c. To abide by the rules of the home he resides in;

    d. To have no contact directly or indirectly by any means with Travis Wintle, Michael Thompson, Edward Jason (Nathan) Gibbins and Katelyn St. Pierre without their written and ongoing consent;

    e. Not to be within 50 metres of any place you know the above individuals live, work or go to school or happen to be;

    f. To attend for assessment, treatment and counselling as required by the probation officer particularly as follows: mental health assessment and treatment, alcohol and drug programs and elder programs for cognitive ability and to sign any consents necessary for the probation officer to see how you are doing in those programs;

    g. Not to have any weapon in your possession.

13. Two of the victims have filed restitution requests against you. A stand alone restitution order shall be issued for each of the following victims:

    a. Michael Thompson – $1000 lost wages for not being able to work for a week

    b. Edward Jason (Nathan) Gibbins or his insurance provider – $4979.80 for the damage to his Ford Escape from gunshot;

    c. Edward Jason (Nathan) Gibbins – $2000 for Snap-On Tools, for which no receipt was provided;

    d. Edward Jason (Nathan) Gibbins – $5000 for vehicles retained by the accused.

14. Twelve months granted to pay the Victim Fine Surcharge.

62If there are any questions about these terms, I will address them at this time.