ONTARIO COURT OF JUSTICE

DATE: December 6, 2022

COURT FILE No.: 20-38103850 KINGMA and 21-38104415 ROZAK

BETWEEN:

HIS MAJESTY THE KING

— AND —

PAUL KINGMA

HIS MAJESTY THE KING

— AND —

MICHAEL ROZAK

Before: Justice Angela L. McLeod

Guilty pleas and sentencing hearings on October 21, 2022

Counsel: Ms. Douglas......................................................................................... counsel for the Crown Mr. Hebscher.................................................... counsel for the defendant Michael Rozak Mr. Hrivnak........................................................... counsel for the defendant Paul Kingma

McLeod J.:

OVERVIEW

[1] These matters are unrelated. The defendants are not co-accused. Each, however, was judicially pretried by myself and each coincidentally entered guilty pleas before me on the same date. Each agreed to appear for sentence imposition on the same date.

[2] The issues are identical. As such, I have prepared one written decision.

[3] On the day of the guilty pleas and sentencing submissions, the federal government banned the sale or transfer of handguns [1].

MR. KINGMA – GUILTY PLEAS

[4] Mr. Kingma plead guilty to the following offences:

(1) 1 June 2020 – store a restricted firearm in a careless manner, s. 86(1), Criminal Code (2) 1 June 2020 – store a restricted firearm in a careless manner, s.86(1), Criminal Code (3) 1 June 2020 – failed to report a lost firearm, s. 101, Criminal Code.

[5] The Crown elected to proceed by way of Indictment.

[6] The facts can be summarized as follows:

(1) In May of 2020, police initiated a traffic stop with respect to a speeding vehicle. Following an investigation, the driver, not the defendant, was charged with possessing a loaded, restricted firearm (a handgun) with a tampered serial number. (2) The serial number was restored, the firearm was identified and was registered to Mr. Kingma. (3) There were no records of the firearm having been lost or stolen. (4) A search warrant was garnered and executed at Mr. Kingma’s residence. The following items were seized: (a) An ammunition bag containing cartridges and a magazine located under the kitchen counter in the basement. (b) An ammunition bag containing various boxes of ammunition located in a kitchen cabinet in the basement. (c) A Ruger rifle calibre .308 located in a safe. (d) A SKS rifle .762X39 located in a safe. (e) A Chiappa shot gun, 12 gauge, located in a safe. (f) A BB gun located in a safe. (g) A Bushmaster rifle calibre 5.56 located in a safe without a trigger lock or cable lock. (h) A black case for the Norinco P-226 9mm calibre, the firearm seized in the traffic stop. (i) A Sig Sauer handgun, model 226, 9mm calibre located in a locked suitcase, without a trigger lock. The suitcase lock combination was all zeros. (j) A Sig Sauer mosquito .22 calibre, located in a safe without a trigger lock. (k) A revolver model 972 caliber .357 located in a safe in a locked suitcase, without a trigger lock. The suitcase lock combination was all zeros. (l) 4 magazines – 2 for a .223 rifle and 2 for a 9mm handgun. The .223 magazine has the capacity of 10 rounds and was designed for a handgun. Mr. Kingma did not possess a handgun for this magazine, but used it in the Bush Master gun, which made it a prohibited device. (m) Many other guns and weapons were located in the safe or around the safe. (5) Mr. Kingma was not aware that his firearm was missing or stolen until the arrest arising out of the traffic stop was broadcast in the news; however, he did not report it missing even at that point.

MR. KINGMA – PERSONAL CIRCUMSTANCES

[7] Mr. Kingma is 37 years of age, is not married but maintains a serious intimate relationship. His partner has one child.

[8] He previously studied a police foundations course, hoping to become a police officer; however, unfortunately he suffered a serious injury which abruptly ended this goal.

[9] He has worked for the same employer for the past 10 years. He builds and fixes water mains. His employer’s largest client is the City of Toronto. His employment contract requires annual criminal record checks as he has access to restricted sites. It is a possibility that his union could call upon him to work in the United States, although this has never happened in his 10 years with the company.

[10] Mr. Kingma also owns a landscaping company and subcontracts to others. His water main job offsets the financial needs of his landscaping company. He ponders the possibility of a landscaping business in Tampa Florida but has not taken any steps in that regard.

[11] In July 2022, he completed a Canadian Firearms Safety Course, alongside his father, with whom he enjoys hunting.

[12] He has no criminal record.

MR. KINGMA – POSITION OF THE PARTIES

[13] The Crown seeks a 180-day conditional sentence order (90 days under house arrest, and 90 days with a curfew between 10pm and 7am), and 12 months probation.

[14] The Crown submits that being a lawful gun owner is a privilege, not a right, and that Mr. Kingma failed in his obligations to store and manage his guns in a safe manner.

[15] The Crown argues that any discharge is contrary to the public interest and relies upon the sentencing principle of deterrence and highlights the gravity of the offence.

[16] The defence seeks an absolute discharge. Counsel submits that it is in the best interest of the defendant and not contrary to the public interest.

[17] Mr. Kingma would lose his employment if he had a criminal conviction registered against him. Counsel submits that his employment would be terminated if he were granted a conditional discharge.

[18] Counsel argues that Mr. Kingma has already suffered punitive consequences not being able to hunt with his family for the last 2 years.

[19] The parties agree to a s. 110 order for 5 years and a s. 117 prohibition for 5 years.

[20] The parties agree that I can consider the federal government’s ban on the sale of handguns in my analysis of the public interest.

MR. ROZAK – GUILTY PLEA

[21] Mr. Rozak plead guilty to the following offence:

(1) 9 October 2021 – use a firearm in a manner that was careless, s. 86, Criminal Code.

[22] The Crown elected to proceed by way of summary conviction.

[23] The facts can be summarized as follows:

(a) Mr. Rozak attended a neighbours family Thanksgiving dinner, after being told not to attend. (b) He arrived at 10pm, unannounced and intoxicated. (c) He brought chocolates and then left. (d) He returned and was met in the driveway. (e) He approached the homeowner holding a Glock-17 handgun and said, “I can’t fire this thing”. The homeowner removed the firearm from him and took it inside to hide it. (f) The homeowner asked him if he had the magazine for the gun. Mr. Rozak took it from his pocket and handed it over. (g) Mr. Rozak then asked for the gun back. His request was refused. He said, “no matter, I have others (or another) at home”. (h) The police were called. His home was searched. A quantity of ammunition (10 types) were seized. (i) He possessed a valid firearms license.

MR. ROZAK – PERSONAL CIRCUMSTANCES

[24] Counsel submits that is it unknown if Mr. Rozak has, or had, a mental health issue; however, he was a binge drinker who subsequently entered an inpatient treatment center and thereupon identified as an alcoholic. He has not consumed alcohol since October 2021.

[25] He has been attending the Vita Nova Addiction Recovery day program since the end of November 2021, Monday to Thursday for 4 hours per day. He has completed the program but remains connected through an after-care program and is volunteering with the agency (120 hours to date).

[26] Mr. Rozak has worked since 2011 as a representative for food manufacturers in the United States and has to attend various conferences in that country. He has only one Canadian client. If a conviction is registered against him, he will lose half or more of his income. A conditional discharge will have the same impact.

[27] A letter from an immigration counsel was filed as an exhibit in support of this submission.

[28] A presentence report was authored and outlines that he had a positive upbringing, is divorced and estranged from his daughter. He maintains a positive intimate relationship. He has many personal supports within the community. A number of letters of support were filed on his behalf.

[29] Mr. Rozak is a member of a gun club and enjoys attending the shooting range.

[30] He has no criminal record.

[31] Mr. Rozak read an apology letter to the court.

MR. ROZAK – POSITION OF THE PARTIES

[32] The Crown seeks a 90-day conditional sentence order, with terms tantamount to house arrest for the full duration, 18 months probation, and a forfeiture order.

[33] The Crown relies upon the sentencing principles of general deterrence and denunciation. The Crown submits that lawful gun ownership is a privilege. The Crown lessened its original position in response to the treatment that Mr. Rozak undertook.

[34] The Crown did not refer to any caselaw.

[35] The defence seeks an absolute discharge. Counsel argues that there is little need for general deterrence and even less for specific deterrence. He submits that rehabilitation is more important than deterrence. He submits that there is no need for probation. Counsel relies upon R. v. Nawakayas (1994) Carswell Sask 349 (Sask C.A.), R. v. Schaffner, 2016 BCPC 457, R. v. Charania, 2014 ONSC 1695, R. v. McGuigan [1979] O.J. No. 1112, 50 C.C.C. (2d) 305 (Ont. C.A.), R. v. Benoit, 1985 NLCA 1828.

[36] Nawakayas, supra, a scant four paragraphs, is factually distinguishable and in those circumstances the Saskatchewan Court of Appeal held that the sentencing jurist placed too much emphasis on the principle of specific and general deterrence, rather than rehabilitation. This case does not assist in the matter before this court.

[37] Schaffner, supra, is a gun sentencing case wherein the Crown was opposed to discharge. Mr. Schaffner was an American citizen who required security clearance for his employment. He had been investigated and found with weapons at a border crossing. He had no criminal record. Justice Sutherland reviewed caselaw presented at the hearing and noted that general deterrence was emphasized. Nonetheless, in the particular circumstances of that case, a conditional discharge was granted. This case does not assist in the matter before this court.

[38] Charania, supra, is a summary conviction appeal decision wherein the appellant had been convicted of mischief to data and unauthorized use of a computer. It is factually distinguishable. The main issue on appeal was the sentencing jurist’s consideration of the manner in which the defence had been carried out and whether that had been determined an aggravating factor. Additionally, Justice Goodman considered the principle that collateral consequences are relevant when deciding between otherwise appropriate types of sentences for a particular offender. In the particular circumstances of that case, the appeal was granted, and a conditional discharge was imposed. This case does not assist in the matter before this court.

[39] McGuigan, supra, is a 1979 Ontario Court of Appeal decision arising from guilty pleas for attempted armed robbery. The Attorney General of Ontario was the appellant. The three accused received sentences of 3 years, and two years less one day respectively. Leave was granted but the appeal was dismissed. The sentences were not interfered with. This case does not assist in the matter before this court.

[40] Benoit, supra, is a 1983 appeal arising out of a conviction post jury trial, for the offence of discharging a firearm with intent to endanger life. The sentence was 7 years custody. The sentence appeal was granted, and the sentence was reduced to 4 years in light of the appellants intoxicated state at the time that he fired a shotgun in the general direction of police officers and the lack of planning and premeditation. This case does not assist in the matter before this court.

[41] Defence counsel referenced a more recent decision, R. v. Meinzinger, 2021 ONCJ 677. Justice Parry imposed a conditional sentence of 2 years less one day to be followed by 12 months probation. The Crown had been seeking a sentence of two years less one day custody, the defence of a conditional sentence of two years less one day. Mr. Meinzinger had been experiencing suicidal ideations when he drove around his neighbourhood with a loaded gun and text his intention to his former girlfriend. Justice Parry relied heavily upon the sentencing principle that “where there exists evidence of a link between a mental health (and/or addiction) issue and the commission of a criminal offence, that link serves as a mitigating factor” and reduces the moral blameworthiness of the offender. He found that Mr. Meinzinger’s “suicidal state gave rise to his unlawful conduct”.

[42] The parties agree to a s. 110 order for 5 years.

ANALYSIS

1. AGGRAVATING AND MITIGATING FACTORS – MR. KINGMA

[43] I find the following factors to be mitigating:

(1) The plea of guilt. (2) The lack of a criminal record. (3) The positive history of employment and otherwise prosocial background. (4) The completion of the firearms safety course.

[44] I find the following factors to be aggravating:

(1) Mr. Kingma’s firearm was in the possession of another individual. (2) The large variety of weapons and ammunition in the home that were not properly stored in a number of manners and locations. (3) Mr. Kingma’s attention to his firearms was so poor that he was not even aware that one was missing or stolen. (4) Mr. Kingma did not notify the authorities once he learned through the media that his weapon had been located.

2. AGGRAVATING AND MITIGATING FACTORS – MR. ROZAK

[45] I find the following factors to be mitigating:

(1) The plea of guilt. (2) The lack of a criminal record. (3) The positive history of employment and otherwise prosocial background. (4) Mr. Rozak did not threaten any of the parties. (5) Mr. Rozak was cooperative with the homeowner, handing over the firearm and the magazine. (6) Mr. Rozak has completed substantial rehabilitative programming since the date of the offence, addressing the underlying criminogenic factor at play.

[46] I find the following factors to be aggravating:

(1) Mr. Rozak was told not to attend the family gathering. (2) Mr. Rozak had the magazine for the handgun in his pocket and thus readily available to him.

3. PURPOSE, OBJECTIVES, AND PRINCIPLES OF SENTENCING

[47] Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, provides that the fundamental purpose of sentencing is "to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society."

[48] This fundamental purpose is achieved by imposing sanctions on offenders that have one or more of the following objectives:

• denouncing unlawful conduct;
• deterrence of the offender and other persons from committing offences;
• separation of offenders from society, where necessary;
• assisting in the rehabilitation of offenders;
• to provide for reparations of harm done to victims, or the community; and
• to promote a sense of responsibility in offenders and acknowledgment of harm done to victims and the community.

[49] Section 718.1 provides that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Section 718.2 further provides that a sentence should be increased, or reduced, to account for any relevant aggravating or mitigating circumstances. In section 718.2(a) a number of deemed aggravating circumstances are enumerated. Section 718.2 goes on to provide the following guidelines for arriving at a fit and proper sentence:

(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.

[50] The purpose, objectives, and principles of sentencing set out in s. 718 and following, of the Code, as interpreted by the courts, provide the framework for the imposition of a fit sentence on the offender.

[51] A principled approach to sentencing requires an analysis without prejudice or sympathy.

[52] In R. v. Burghardt, 2020 ONCJ 517, at para 34, Justice West wrote:

Sentencing is highly individualized (see R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.), at paragraph 92) and must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It is to be increased or reduced to account for any aggravating or mitigating circumstances. It should strive to be similar in relation to other sentences imposed on similar offenders in similar circumstances.

3a. Principle of Proportionality

[53] The purpose of sentencing is to enhance the protection of society. Sentences should reflect the gravity of the offence and the degree of responsibility of the offender. These factors can be characterized as the moral culpability of the offender’s conduct.

[54] Counsel submits that the fact that Mr. Rozak was intoxicated at the time of the incident reduces his moral culpability.

[55] In R. v. Vader, 2019 ABCA 488, para. 16, the court wrote:

In assessing moral blameworthiness, a sentencing judge must consider all of the circumstances that bear on an offender's moral culpability. This includes not only the nature of the unlawful act, but also the degree of planning and deliberation involved in the unlawful act and any other factor that is relevant to the offender's moral blameworthiness, such as the personal characteristics of the offender that may aggravate or mitigate the offender's moral culpability.

[56] In R. v. Mascarenhas, 2002 Carswell ONT 2517, para. 19, Justice Abella wrote:

The appellant argues that because his conduct involved alcohol, it is less morally culpable than the conduct that attracted a 9-year sentence in Shore. I have difficulty seeing how the voluntary consumption of an excessive amount of a substance like alcohol is an attenuating rather than an aggravating factor in driving offences.

3b. Denunciation

[57] In R. v. T., 2006 MBCA 15, the court wrote:

24 Denunciation of unlawful conduct is a discrete principle of sentencing. It is one of the objectives of sentencing set out in s. 718 of the Criminal Code. Denunciation is "the communication of society's condemnation of the offender's conduct" (Lamer C.J. in R. v. Proulx, [2000] 1 S.C.R. 61, 2000 SCC 5 (S.C.C.) at para. 102). It is "a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values" (Lamer C.J. in R. v. M. (C.A.), [1996] 1 S.C.R. 500 (S.C.C.) at para. 81). Denunciation is typically reserved for crimes that are particularly offensive or prevalent. When applicable, it usually prevails over the principle of rehabilitation.

3c. Deterrence

[58] The principle of deterrence is succinctly summarized in R. v. Bourgeois 2022 NBPC 2 as follows:

33 Deterrence is subdivided into specific and general elements. Specific deterrence is designed to convince the offender before the Court not to re-offend. The circumstances of the offender and the prospects for rehabilitation must be considered. A court must look at the individual, his record and attitude, his motivation and his reformation and rehabilitation.

34 General deterrence is aimed at persuading others who may be inclined to commit the same offence from so doing. If this is the aim, the sentencing court must consider the gravity of the offence, the incidence of the crime in the community, the harm caused by it either to the individual or to the community and the public attitude toward it.

3d. Rehabilitation

[59] The principle of rehabilitation is succinctly summarized in Bourgeois, supra, as follows:

36 The maintenance of a just, peaceful and safe society, as is mandated by section 718, can often best be achieved by the rehabilitation of offenders. As the Supreme Court of Canada has held, "Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world" (see R. v. Lacasse, 2015 SCC 64 at para. 4).

3e. Parity

[60] In R. v. Rawn, 2012 ONCA 487, paras. 17-18 and 30, the Court wrote:

17 The principle of parity of sentences is set out in s. 718.2(b) of the Code:

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.

18 The parity principle serves to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and the offender would suggest like sentences. See: Clayton Ruby, Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008), at para. 2.21.

30 In R. v. Issa (1992), 57 O.A.C. 253 (Ont. C.A.), this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there maybe sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together." [Citations omitted.]

3f. Restraint

[61] In R. v. Batisse, 2009 ONCA 114, pp. 32, the principle of restraint was reviewed:

32 The principle of restraint operates in three ways in the present case. First, it is an important consideration because the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (Ont. C.A.), at p. 545.

33 Second, the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226 (Ont. C.A.), at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

34 In serious cases and cases involving violence, rehabilitation alone is not the determinative factor — general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky [2005 Carswell Ont 876 (Ont. C.A.)], at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

35 Third, Parliament has codified the principle of restraint to limit the use of incarceration as a sentencing alternative, particularly for Aboriginal offenders. Subsection 718.2(d) of the Criminal Code provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances". Subsection 718.2(e) provides:

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

(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.

4. COLLATERAL CONSEQUENCES

[62] In R. v. Suter, 2018 SCC 34, at paras 46-49, Moldaver J. wrote as follows:

46 As I have observed, sentencing is a highly individualized process: see Lacasse, at para. 54; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), at para. 82; Nasogaluak, at para. 43. In R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 (S.C.C.), this Court stated that a sentencing judge must have "sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender" (para. 38). Tailoring sentences to the circumstances of the offence and the offender may require the sentencing judge to look at collateral consequences. Examining collateral consequences enables a sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender.

47 There is no rigid formula for taking collateral consequences into account. They may flow from the length of sentence, or from the conviction itself: see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 (S.C.C.), at para. 11; R. v. Bunn (1997), 118 Man. R. (2d) 300 (Man. C.A.), at para. 23; R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183 (S.C.C.) ("Bunn (SCC)"), at para. 23; Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289 (S.C.C.). In his text The Law of Sentencing (2001), Professor Allan Manson notes that they may also flow from the very act of committing the offence:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While not punishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.

[Emphasis added; p. 136.]

I agree with Professor Manson's observation, much as it constitutes an incremental extension of this Court's characterization of collateral consequences in Pham. In my view, a collateral consequence includes any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

48 Though collateral consequences are not necessarily "aggravating" or "mitigating" factors under s. 718.2 (a) of the Criminal Code — as they do not relate to the gravity of the offence or the level of responsibility of the offender — they nevertheless speak to the "personal circumstances of the offender" (Pham, at para. 11). The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.

49 Collateral consequences do not need to be foreseeable, nor must they flow naturally from the conviction, sentence, or commission of the offence. In fact, "[w]here the consequence is so directly linked to the nature of an offence as to be almost inevitable, its role as a mitigating factor is greatly diminished" (Manson, at p. 137). Nevertheless, in order to be considered at sentencing, collateral consequences must relate to the offence and the circumstances of the offender.

5. ABSOLUTE AND CONDITIONAL DISCHARGE

[63] In R. v. Burghardt, supra, para. 37, Justice West wrote:

In R. v. Hayes, [1999] O.J. No. 938 (Ont. Gen. Div.), Hill J. substituted a conditional discharge for a suspended sentences and probation where the charges involved mischief, wilful damage to property and assault with a weapon. In addressing when conditional discharges are appropriate, he cited these cases at para. 32:

Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.

[64] In R. v. MacIntosh, 2018 NSPC 45, Justice Atwood wrote:

64 R. v. Fallofield, [1973] B.C.J. No. 559 (B.C.C.A.) at para. 21 expanded on the qualificational criteria for discharges; those criteria have been applied by sentencing courts in Canada continuously for the past four decades:

(1) The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. (2) The section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivial violation. (3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused, that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. (4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. (5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions. (6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does not preclude the judicious use of the discharge provisions. (7) The powers given by s. 662.1 should not be exercised as an alternative to probation or suspended sentence. (8) Section 662.1 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of cases.

65 While discharges should not be granted easily or routinely, they are not reserved for exceptional circumstances: R. v. Scheper, [1986] Q.J. No. 1806 (C.A. Que.) at para. 9. The test is whether a discharge would be in the interests of the person to be sentenced and not contrary to the public interest. In Sellars (which I summarized earlier dealing with sentencing parity) the Court of Appeal found the sentencing judge to have erred in holding that a discharge must be in the public interest; that was too stringent and not in line with the statute.

[65] In R. v. Swierszcz, O.J. No. 1088, the Ontario Court of Appeal noted the balancing of factors and principles when considering a discharge:

4 We acknowledge that there was much to be said of this particular respondent, but the mitigating factors simply do not come close to justifying a conditional discharge. The real question at trial was whether the respondent should be incarcerated or should receive a conditional sentence. Without commenting on what would have been the appropriate sentence at trial, we are satisfied that at this time a conditional sentence is appropriate. We impose a 12 month sentence to be served conditionally on terms to be settled by the court after counsel have had a chance to discuss them. The conditional sentence will be followed by a period of probation for two years on the terms imposed by the trial judge.

5 Before leaving this case, we want to comment on one further matter. The trial judge seemed moved to grant a conditional discharge largely because of the risk that the respondent, a lawyer, would be disbarred if a conviction was entered. The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range. As indicated above, a conditional discharge was far outside of the range appropriate for this kind of criminal conduct. Consequently, the trial judge erred in imposing a conditional sentence so that the respondent could keep his licence to practise law.

(emphasis added)

[66] In R. v. Navas, 2022 ONCJ 153 at para 26:

26 There will, of course, be cases where a probation order is required as part of a conditional discharge order to confirm that an offender receives necessary counseling or programming for his rehabilitation. It will also be appropriate when an offender should be supervised in the community for a period of time while subject to appropriate conditions crafted to ensure the safety of a victim.

27 This is not such a case. There is simply no need for a probation order here as Mr. Navas is already engaging with appropriate community resources and undergoing treatment as well as therapy: see R. v. C.C., [2004] O.J. No. 3885 (Ont. C.J.) If an offender has made progress towards addressing the underlying factors that led to his offending behaviour, for example through the completion of counseling or medical treatment, he has demonstrated his commitment to his own rehabilitation. That is powerful evidence with which to evaluate the public interest component of the test for a discharge: see D. Robitaille and E. Winocur, Sentencing: Principles and Practice, (Toronto: Emond Publishing, 2020), Chapter 5, at p. 145. It is also a significant factor to weigh when deciding if a conditional discharge including probation is truly required.

28 Furthermore, there are no ongoing victim safety concerns in this case. The complainant has indicated he wishes to have further contact with Mr. Navas. No evidence was presented before me that suggested Mr. Navas has any prior history of violent or threatening behaviour. The circumstances that existed in his personal life when this incident occurred are simply no longer present. If conditions are no longer required to achieve an appropriate sentence, they should not be imposed: see R. v. Holder-Zirbser, 2018 ONCJ 59 at para. 12.

29 When considering between an absolute and conditional discharge, I note the retention period of these records is very different under the Criminal Records Act. A record of an absolute discharge is kept for one year, whereas a record of a conditional discharge is kept for 3 years "since the day on which the offender was ordered discharged on the condition prescribed in a probation order": see section 6.1. Following that retention period, the existence of the discharge cannot be disclosed without the prior approval of the Minister of Public Safety and Emergency Preparedness: R. v. Montesano, 2019 ONCA 194 at para. 9.

30 Extending the retention period of his discharge would be contrary to Mr. Navas' long-term rehabilitative prospects. His employment options, ability to access public housing, and even educational opportunities may be affected by the longer retention period associated with a conditional discharge: see R. v. L.A.Q., 2021 BCPC 288 at para. 72. In Ontario, the Police Records Checks Reform Act, S.O. 2015, c. 30, establishes standards that govern how police record checks are conducted. A record of a discharge may be released depending on the level of record check requested or required.1 That act came into force on November 1, 2018.

31 This offence was causally linked to Mr. Navas' difficult personal circumstances including his mental health challenges. Given the tremendous progress he has made, including his ongoing treatment for his mental health and addiction challenges, promotion of his long-term rehabilitation should be the focus of my decision. That will ensure he remains a productive member of society engaged in pro-social activities. That is indisputably is in the public interest.

32 Ms. Crisotvao put it very well when she said that person who committed the offence was not the same person who comes before me today. I agree. Mr. Navas' efforts at rehabilitation have been nothing short of exemplary. I have no reason to be concerned he poses any risk to the safety of the community in the future. His path to a positive future should remain unobstructed.

33 In all the circumstances, I grant an absolute discharge.

6. SENTENCING FOR FIREARMS OFFENCES

[67] On October 21, 2022, the Canadian Government banned the sale or transfer of handguns. The following statement was published on the Prime Minister’s web page:

October 21, 2022 Surrey, British Columbia

Fewer guns mean safer communities. That’s why the Government of Canada is implementing some of the strongest gun control measures in a generation. Handguns are the weapon of choice in most firearm-related crimes, which is why limiting the number of handguns is a critical part of our plan to protect Canadians from gun violence.

The Prime Minister, Justin Trudeau, today announced the national freeze on the sale, purchase, and transfer of handguns comes into effect. From now on, people cannot buy, sell, or transfer handguns within Canada, and they cannot bring newly acquired handguns into the country.

A national handgun freeze was first announced alongside Bill C-21, the strongest gun control measures in over 40 years, in May 2022. While the bill continues to be debated in Parliament, we are taking immediate action through regulations to keep Canadians safe.

The national handgun freeze is part of the government’s comprehensive plan to tackle gun violence. We have already banned over 1,500 types of assault-style firearms and have strengthened our gun control laws to expand background checks. Bill C-21 proposes further measures to keep guns out of the wrong hands like revoking the firearms licences of those involved in acts of domestic violence or criminal harassment, continuing to fight gun smuggling and trafficking, and providing law enforcement more tools to investigate firearms crimes.

One life taken by gun violence is one too many. We will continue to work with provinces, territories, Indigenous communities, and municipalities to keep Canadians safe. We will continue to do whatever it takes to keep guns out of our communities and build a safer country, for everyone.

(And further)

I. Quick Facts

• Handguns were used in 59 per cent of violent crime involving firearms between 2009 and 2020, and there are 70 per cent more handguns in Canada today than in 2010.
• There were over 3,500 reported thefts of firearms in 2018.
• One in three women and girls killed by an abuser is murdered with a gun.
• Applications submitted before October 21, 2022, to buy, sell, or transfer a handgun within Canada will continue to be processed.
• Limited exemptions to the national handgun freeze will apply. For example, high-performance sports shooting athletes and those who carry handguns as part of their lawful profession will be exempted, as well as authorized businesses such as gunsmiths, the film industry, or museums, per their licence conditions.
• The temporary ban on the importation of handguns into Canada that took effect on August 19, 2022, remains in place.
• Under Canada’s temporary import ban, authorized businesses and individuals can only import handguns for personal use, sale, or transfer if the end use meets the exemptions and conditions listed above and set out in detail in the Notice to Importers No. 1090.
• Since 2016, the Government of Canada has invested almost $1 billion to address gun violence and keep guns out of the hands of gangs and criminals, including supporting work to crack down on gun smuggling at our border.
• These investments are already making a difference. Last year, the Canadian Border Services Agency (CBSA) made a record number of gun seizures at the border.

[68] I find the following cases to be helpful in the matters before this court, and have considered the quoted passages in my analysis:

a. R. v. McDonald 2017 BCCA 271 at para 36, the court found that the appellant had a “contemptuous attitude towards and flagrant disregard of the scheme of regulation, his dishonesty, and the fact that these offences were committed by an utterly irresponsible gun owner were all amply supported by the record.”

b. R. v. Hale 2018 ABCA 58 at para 10 quoting the trial judge who found that the appellant had a "laxness and latitude which surrounded the storage and use of guns and ammunition in this house … I'm not satisfied that a discharge is an appropriate remedy in a situation such as this. We are not talking about some inadvertence, some minor violation of a regulation. This was an arsenal of weapons, not all of which were inappropriately handled or stored, but significant numbers of them and particular items were in a situation where there was potential danger and harm. One does not have to extend one's imagination too far to see how this could have all come crashing down.”

Further at paras 23 and following:

Conditional or Absolute Discharge

23 The sentencing judge clearly found — and in our respectful view with substantial justification — that the conduct of the appellant over an extended period of years in relation to firearm handling and storage was poles apart from mere regulatory error. This was not a matter of momentary lack of attention by a person who has otherwise acted cautiously and responsibly. Nor was his conduct a technical departure from a matter of formality associated with authorized firearm possession. The appellant possessed a substantial arsenal of dangerous weaponry. His dealings with them were a serious and protracted departure from the law.

24 The appellant's case, for that matter, is a considerable distance from that of the "the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored" described as a regulatory offender in R. v. Nur, 2015 SCC 15 (S.C.C.) at para 82, [2015] 1 S.C.R. 773 (S.C.C.). As pointed out by the majority in Nur at para 1, and elaborated upon by the dissent in Nur at paras 121 to 145, gun crimes pose a "grave danger to Canadians."

25 To be sure, the appellant has no other criminal record and he was acquitted of all the surrounding allegations which brought the police to his residence. But it is not beyond the range of common sense to say that the lax possession of firearms by the appellant exposed others to great danger. That is so because there was necessarily a risk that criminal gangs or the like should have become aware of the armaments located at the residence, or that a burglar should simply find them there, or that a lawfully visiting person of immature or uniformed circumstances, particularly a child, should do so.

26 Parliament enacted strict gun control in Canada for many reasons, one of which is reflected in the comments of Cory J in R. v. Felawka, [1993] 4 S.C.R. 199 (S.C.C.) at para 21: "A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence." The objective nature of the test for careless storage of firearms under s 86 of the Code, involving "a marked departure from the standard of care of a reasonably prudent person in the circumstances" likewise has a self-evident rationale: compare R. c. Gosset, [1993] 3 S.C.R. 76 (S.C.C.) at paras 56 to 58 applying the approach and principles set out in R. v. Creighton, [1993] 3 S.C.R. 3 (S.C.C.).

27 All that being said, the offence of the appellant under s 86 of the Criminal Code was not excluded from the ambit of s 730(1) of the Code. So accordingly, the sentencing judge was correct to give the request for a discharge consideration.

28 We can safely assume that he was aware of the criteria for grant of a discharge being that he should decide if it is "in the best interests of the accused and not contrary to the public interest". His decision to not grant a discharge was based upon his assessment of the gravity of the offence and the degree of responsibility of the offender consistently with s 718.1 of the Criminal Code and the implications of that for the public interest. A conditional discharge which did not properly reflect proportionality in relation to an offence would be contrary to the public interest: see eg R. v. MacFarlane (1976), 1976 ALTASCAD 6, 55 A.R. 222 (Alta. C.A.).

29 The sentencing judge acknowledged that the appellant did not have the entire stockpile of weaponry at his residence stored in an improper manner. Nonetheless, the appellant's offence involved irresponsible handling of firearms over a number of years by a mature person who was in a position to clearly understand how to deal with such weapons properly. This included activity of fast draw gun playing.

30 In view of the importance of sending an unambiguous signal to society that the appellant's conduct was improper, there was no error in his finding that a discharge was not a fit and proportional sentence: compare R. v. Nikolaou, 2012 BCCA 169 (B.C. C.A.) at paras 10 to 11, (2012), 321 B.C.A.C. 169 (B.C. C.A.). It was reasonable to conclude that it would be contrary to the public interest to suggest otherwise. This Court is not entitled to simply substitute its own view of the balance thus struck as part of a fit sentence might be.

31 This aspect of the appeal fails.

c. R. v. Kunnuk, 2020 NUCJ 19 (an appeal from a case wherein the Crown sought a conditional sentence order and the defence an absolute discharge. For careless use and possession of a firearm while prohibited. Crown appeal of the imposition of an absolute discharge)

31 Firearms are ubiquitous in Nunavut. Most households have more than one firearm. They are a necessary tool to carry out a proud hunting tradition. It is for these same reasons that they must be handled and stored properly at all times. Improper handling or storage of firearms places people at risk and must be denounced by the court. Unfortunately, firearms are too often picked up and used improperly; most often when someone is drunk and distraught. Many of those incidents end without injury; some end tragically. In many of the cases, as in this case, the offender has little or no recollection of the incident. It is for this reason that firearm owners must turn their minds to proper storage at all times and make it a matter of habit. The more layers and steps that a person has to go through to access their properly stored firearms and ammunition, the less likely it is that the firearm will be taken up in a drunken state.

32 Firearm owners must know that instances of improper handling and storage of a firearm will be treated seriously by the court. They must know that the misuse of firearms carries with it not only the risk of a criminal record, but also the potential of forfeiture of the firearm itself and, perhaps most importantly, loss of the privilege to own and possess a firearm. It is this knowledge of the potential for serious consequences, including the loss of the ability to hunt and provide for family, that will hopefully deter firearm owners from handling and storing firearms without the utmost care and diligence.

d. R. v. Yang 2018 ONCA 230, leave to appeal to S.C.C. refused,

2 In our view, a conditional discharge was a demonstrably unfit disposition in the circumstances of this case.

3 The respondent was a licenced gun owner. While intoxicated late one evening, he fired a semi-automatic restricted 45 caliber Sig Sauer firearm inside of his apartment. He discharged three bullets. One of the bullets penetrated his neighbour's apartment. The bullet came to rest in the living room area, next to where the neighbour's child's toys were stored. As the trial judge said, these actions were about "as careless as one can imagine" and could "easily have caused immeasurable tragedy".

4 The sentencing judge erred in placing insufficient weight on the primary sentencing principles of general deterrence and denunciation. The trial judge also erred in using the fact of the appellant's intoxication as a mitigating factor, when in fact it was a significant aggravating factor in this case.

5 There were numerous aggravating factors involved, including the multiple shots fired and the inherent dangerousness of the respondent's conduct, which could have had catastrophic results.

6 In these circumstances, a conditional discharge was not available. Although we are aware of the immigration implications arising from a conviction in this matter, these consequences cannot operate to allow the imposition of an unfit sentence: R. v. Pham, 2013 SCC 15 (S.C.C.), at paras. 14, 18.

e. R. v. Cox [2003] O.J. 917

Is an absolute discharge warranted?

36 Section 730(1) of the Criminal Code states:

Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

37 The Appellant is in his fifties. He has no criminal record and is employed as a train conductor which, on occasion, requires him to cross the Canadian border. The Appellant had never owned guns previously and the only reason he was in possession of these guns was in his role as executor of his father's estate. The guns were not prohibited weapons and no ammunition was found in the house. He had no intention of keeping them and did not intend to use them at any time in the future.

38 The regulations for possessing and acquiring guns are now so stringent that it is unlikely that the Appellant could secure a firearms acquisition certificate were he to change his mind in the future. A search is conducted by the police department and character witnesses are necessary. Specific questions are asked about the position of the spouse in relation to the other spouse owning and possessing guns. It is extremely unlikely that the Appellant would be a successful candidate in obtaining the necessary certificate for acquiring and possessing guns.

39 A criminal record could prevent him from entering the United States either for his employment or for his enjoyment. A conviction that deals with firearms may increase his chances of not being permitted to cross the border, especially when one considers the present political climate, regulations, and inspections.

40 Accordingly, the granting of an absolute discharge under these circumstances would meet the requirements as stipulated in s.730(1) of the Criminal Code in that it would be in the Appellant's interest and not contrary to the public interest. The sentence is therefore varied to read that the guns on the three counts shall be forfeited to the Crown for disposition. An absolute discharge is granted. The fine, if paid, is to be remitted by the Crown to the Appellant.

41 In summary therefore, the appeal as to conviction is dismissed. The appeal as to sentence is to be varied as per the Reasons.

CONCLUSION

[69] I find that Mr. Kingma, although a first-time offender, was not acting out of character, given the vast collection of improperly store firearms and ammunition at his home. I find that he was an ‘utterly irresponsible gun owner’. His flagrant disregard for the responsibilities of a gun owner resulted in his inability to know when a handgun was missing from his collection. His lack of responsibility was exacerbated when he learned that his gun had been located in the possession of someone else and failed to contact the police.

[70] As a result, his moral culpability is high, and any sentence must be proportionate thereto.

[71] I accept that the collateral consequences of a conviction will cause Mr. Kingma to lose his employment with the water main company due to the mandatory yearly criminal record check. The possible inability to travel to the USA for work or the possible expansion of his landscaping business to the USA are remote and have not factored into my analysis.

[72] I find that a discharge would be in Mr. Kingma’s best interest. I do, however, find that a discharge would be contrary to the public interest. As per R. v. Sunczyk, 2009 BCSC 101, “[t]he test is simply whether permitting the offender to avoid the stigma of a conviction undermines the public interest in some definable way.” The public interest is to build safer communities, which requires responsible gun ownership. The public interest is served by deterring like minded individuals.

[73] The principles of denunciation and general deterrence cannot be met, in these circumstances, by the imposition of a discharge.

[74] That being said, given the fact that Mr. Kingma has entered guilty pleas, and has taken a firearms safety course, relying heavily on the sentencing principle of restraint, a custodial sentence is not required.

[75] Mr. Kingma is sentenced to a suspended sentence and 12 months probation, as well as a s.110 order for 5 years, and a s. 117 prohibition for 5 years. This is concurrent on each count.

[76] I find that Mr. Rozak, a first-time offender, was acting out of character and his actions were founded in his mental health issues (alcohol addiction).

[77] As a result, his moral culpability is reduced, and any sentence must be proportionate thereto.

[78] I accept that the collateral consequences of a conviction will either cause Mr. Rozak to lose his employment or will greatly reduce his renumeration.

[79] I find that a discharge would be in Mr. Rozak’s best interest. I find that it would not be contrary to the public interest, in his particular circumstances, to grant him a discharge. The principles of denunciation and deterrence can be met in his particular circumstances. To this end, I rely heavily on the substantive rehabilitative steps that he has, and continues to take, since the time of his arrest.

[80] Given those rehabilitative steps, a term of probation is not required. As such, I grant Mr. Rozak an absolute discharge, and make a s. 110 order for 5 years as well as a s. 117 prohibition order for 5 years.

[81] I note that given the current licensing regime and regulations, it is open to the Chief Firearms Officer to consider the appropriateness of either Mr. Kingma or Mr. Rozak from becoming a licensed gun owner in the future.

Released: December 6, 2022.

Signed: Justice Angela L. McLeod

[1] See https://pm.gc.ca/en/news/news-releases/2022/10/21/freezing-market-handguns