Court File and Parties

COURT FILE NO.: CR-17-50000115-0000 DATE: 20170705 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ZACHARY BARTON

Counsel: K. Lockhart, for the Crown R. Rusonik, for Zachary Barton

HEARD: 16 June 2017 S.A.Q. Akhtar J.

I. THE “LOST EVIDENCE” RULING

Introduction

[1] On 16 February 2017, a jury found Zachary Barton guilty of the following offences:

• Possession of a loaded prohibited firearm contrary to s. 95(2) of the Criminal Code;
• Possession of a firearm knowing he was not the holder of a licence or registration certificate contrary to s. 92(3) of the Criminal Code;
• Careless storage of a firearm contrary to s. 86(3)(a) of the Criminal Code;
• Possession of a prohibited device knowing that he was not the holder of a licence contrary to s. 92(3) of the Criminal Code;
• Careless storage of a prohibited device contrary to s. 86(3)(a) of the Criminal Code; and
• Careless storage of ammunition contrary to s. 86(3)(a) of the Criminal Code.

[2] On 24 April 2015, police, acting on an informant’s tip, attended a condominium building at 36 Twelfth Street in Toronto to investigate an allegation that Mr. Barton was unlawfully in possession of a firearm.

[3] Shortly after arriving at the address, police encountered Mr. Barton and arrested him in the stairwell of the building. They later discovered a black “Popeyes” bag containing a TEC-DC9 semi-automatic firearm hidden in the base of a plant stand outside his apartment, Unit 7. A subsequent review of surveillance video captured by a camera stationed outside Unit 7 revealed that moments before the police arrived, Mr. Barton and Jessica Jacobs, his then girlfriend, rushed out of the apartment and crouched down beside the plant causing it to shake. As a result, both Mr. Barton and Ms. Jacobs were arrested.

[4] Mr. Barton’s defence was that the firearm had been placed in the plant stand by Melissa McMuldroch, a former girlfriend. Mr. Barton, a self-confessed drug dealer, testified that during their romantic relationship he would leave the firearm at Ms. McMuldroch’s house as a protective measure guarding against the dangers inherent in the business of trafficking controlled substances. After an acrimonious breakup, Mr. Barton claimed that he had abandoned the gun at Ms. McMuldroch’s residence.

[5] Shortly before the events of 24 April 2015, Mr. Barton received a number of text messages from Ms. McMuldroch threatening to put him in jail if he did not meet with her.

[6] Mr. Barton testified that on the day of his arrest, Ms. McMuldroch came to the door of his apartment unit on three separate occasions demanding to be let in. Mr. Barton, inside the apartment with Ms. Jacobs, pretended he was not there. Looking through the door’s peephole, Mr. Barton testified that he saw Ms. McMuldroch kneeling by the plant stand in which the gun was found. After she left, he and Ms. Jacobs hurried out to check on what Ms. McMuldroch had done. They found a bag of crack cocaine as well as pieces of the drug scattered within the plant. After attempting to remove the crack cocaine from the plant and picking up the bag containing the drug, Mr. Barton descended the stairs to be met by police.

[7] Mr. Barton’s defence was rejected: the jury found that the Crown had proven all counts against him beyond a reasonable doubt.

Positions of Counsel

[8] Mr. Rusonik, counsel for Mr. Barton, brings an application for a stay or a new trial. He submits that the police either failed to seize, or deliberately withheld, video evidence which confirmed Mr. Barton’s account that Ms. McMuldroch had placed the gun in the plant stand. As a result, critical evidence exonerating Mr. Barton was kept from the jury.

[9] Mr. Lockhart, for the Crown, asks that the application be dismissed. He argues that the defence has failed to establish the existence of this video evidence.

Legal Principles

[10] The proper approach in determining a claim of failure to preserve evidence derives from the judgment of the Supreme Court of Canada in R. v. La, [1997] 2 S.C.R. 680.

[11] The following principles emerge from La and the subsequent case law:

1. Section 7 of the Canadian Charter of Rights and Freedoms imposes upon the Crown a general duty to disclose all information, whether inculpatory or exculpatory. The only exception to this duty is evidence beyond the Crown’s control, clearly irrelevant, or privileged: R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451. The Crown can only produce what is in its possession and there is no absolute right to have originals produced: R. v. Stinchcombe (No. 2), [1995] 1 S.C.R. 754. The Crown’s duty to disclose includes the duty to preserve all relevant evidence: R. v. Bero (2000), 151 C.C.C. (3d) 545 (Ont. C.A.).
2. If the Crown takes the position that it has discharged its duty of disclosure but the defence disputes the existence of additional relevant material, the defence must establish a basis enabling the presiding judge to conclude that the alleged further material does indeed exist: R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 30.
3. Once the defence establishes the existence of the material, it is incumbent upon the Crown to explain its absence. If the evidence was not lost or destroyed through unacceptable negligence, the duty to disclose has not been breached. In making this determination, the court should examine the circumstances surrounding its loss including whether the evidence was believed to be relevant at the time and whether the police acted reasonably in attempting to preserve it.
4. If the Crown fails to provide a satisfactory explanation and cannot demonstrate the loss of evidence did not occur through unacceptable negligence, the accused’s s. 7 right has been breached. On the other hand, if the Crown’s explanation persuades the court that there was no unacceptable negligence, there is no breach of the s. 7 right and the application should be dismissed.
5. Even if there is a s. 7 breach because of a failure to disclose, a stay of proceedings will only be granted if it is one of the rare cases that is appropriate in only the “clearest of cases:” R. v. B. (F.C.) (2000), 142 C.C.C. (3d) 540 (N.S. C.A.), at 547-8.
6. The “clearest of cases” test involves an analysis of prejudice to determine whether irreparable harm has occurred to the right to make full answer and defence. The central question is whether the absence of the lost evidence means that the accused cannot put forward a defence. It is not sufficient for the accused to show that presentation would be made more difficult: R. v. Bradford (2001), 139 O.A.C. 341, at para. 8.

DID THE POLICE FAIL TO PRESERVE OR DISCLOSE MATERIAL EVIDENCE?

[12] Mr. Rusonik submits that the evidence in this case attests to a series of alternative scenarios, all of which result in a Charter breach leading to a stay or a mistrial. He contends that:

• the police negligently overlooked relevant video footage of Ms. McMuldroch interfering with the plant stand; or
• having seen this footage, the police deliberately failed to download that video; or
• having downloaded it, the police failed to disclose it to the defence.

[13] Applying the principles set out in the previous paragraphs, I find that this application falls at the first hurdle: the defence has failed to establish the existence of the video footage it claims was not preserved or disclosed.

[14] Before explaining the reasons for my finding, it is useful to review the circumstances surrounding the procurement of the video capturing events outside Unit 7.

[15] The video footage made its way through three separate sets of police hands. Sergeant Wayne Jackson, the initial seizing officer, testified that his job was to review the camera recording of the third floor. He downloaded all of the video files that he viewed from the building’s server to a USB drive which he gave to Detective Bruno Miron. Unable to open the files himself, Detective Miron handed the drive to Constable Shaw, a more technologically minded officer who digitally converted them so that they could be viewed. Constable Shaw was instructed by Detective Miron to return to 36 Twelfth Street to obtain further video, if any existed. Constable Shaw passed away some months prior to trial and accordingly, evidence of his involvement in this case was limited to Detective Miron’s awareness of his actions.

[16] Sergeant Jackson’s task was to review only the video recorded by the third-floor camera outside Mr. Barton’s apartment. However, further video footage of the second floor had been obtained by the police, presumably by Constable Shaw. One segment of this footage showed Ms. McMuldroch leaving the building but there appeared to be no recording capturing her arrival.

[17] When testifying, Sergeant Jackson was asked by Mr. Rusonik whether he had an opportunity to review the files that he had downloaded and he replied that he had not. When shown video of Ms. McMuldroch standing outside Unit 7 appearing to make a phone call, Mr. Rusonik asked Sergeant Jackson whether he could be sure that this was video that he had downloaded to which Jackson replied “I can’t be 100 percent sure.”

[18] In addition, Sergeant Jeff Alderdice, the lead investigator, was cross-examined about his notation that appeared to indicate that the call reporting the firearm had originated from Unit 7. He denied that his notation meant that the call itself had come from the apartment but explained that the phrase meant that the call was about Unit 7. Officer Mustovski was also questioned about entries in his notebook that he had informed the anonymous caller that all the necessary steps would be taken to protect his or her identity.

[19] Mr. Rusonik points to the combination of Sergeant Jackson’s testimony, the missing footage showing Ms. McMuldroch’s arrival at 36 Twelfth Street, and the lacuna left by Constable Shaw’s absence as evidence that video footage of Ms. McMuldroch interacting with the plant stand existed. He also submits that the police testimony reveals that they were willing to use their duty to protect the identity of confidential informant as a means of withholding that evidence.

[20] I reject this position for the following reasons.

[21] First, Sergeant Jackson viewed all available footage captured by the camera outside Unit 7. He downloaded mundane events such as Mr. Barton leaving the apartment and Ms. Jacobs doing laundry. It is inconceivable that he could have missed such a significant and obvious occurrence as Ms. McMuldroch kneeling down in front of the plant, removing it from atop the container, and placing the Popeyes bag inside. Significantly, Sergeant Jackson was never asked by Mr. Rusonik if he ever saw this, or anything similar, take place when reviewing the video.

[22] Secondly, a fair reading of Sergeant Jackson’s evidence does not, in any way, indicate that another officer had obtained additional images of the third floor or removed any of the material seized by Sergeant Jackson.

[23] What is clear from Sergeant Jackson’s evidence is that he restricted his viewings to the camera recordings outside Unit 7 of the building. All files seized were given to Detective Miron. Mr. Rusonik argues that Sergeant Jackson never confirmed that what was in the files produced by Detective Miron was everything he seized leading to the conclusion that he may have seized additional material to that disclosed. Mr. Rusonik relies on the following questions and answers from Jackson in response to being shown video from the third floor:

Q. Is this something that you seized? If you can’t say…. A. I – – I can’t – – I can't tell you for sure if that was – – if that was 100 percent the footage that I seized.

[24] According to Mr. Rusonik, this exchange demonstrates the existence of additional camera footage.

[25] I do not read Sergeant Jackson’s answers that way. In my view, the officer was simply testifying that he could not remember the footage being played in court at that time. Any doubts on this issue were erased when he was questioned by Mr. Rusonik a short time later on the potential differences between his police notes and McMuldroch’s demeanour on camera. The exchange continued as follows:

Q. Now I don't know the – – the women you have in your life, but if that is as upset as they get… A. I would – – looking back at it again, and thank you, because I haven't seen it – – I haven't actually seen it since that night, and I still – – I mean to be more specific, would I say mildly upset if I were to go back in my notes, I would – – I would interpret that as mildly upset. [Emphasis added]

[26] Moments later, Sergeant Jackson again said – when commenting on the way in which the female on the recording was behaving – "if I were to – – as I indicated before, if I was to change my notes or if I was to look back on that and look at it again, I would say to be more specific in that sense.” [Emphasis added]

[27] At this point in the questioning, it was clear that Sergeant Jackson had remembered the video footage and recalled viewing it when he seized it.

[28] Thirdly, in making this application Mr. Rusonik knew that it would be heard after the trial. Yet, armed with the knowledge that he bore the burden of proving this Charter breach, Mr. Rusonik never asked any of the testifying officers if they had seen Ms. McMuldroch interfering with the plant or suggested to them that they were withholding this evidence. When pressed on this issue, Mr. Rusonik claimed that there was no witness to whom he could make this suggestion. This explanation makes little sense when one considers the Crown called both Sergeant Jackson and Detective Miron to testify about the viewing and seizure of the camera recordings. I return to this point later on in my reasons.

[29] Fourthly, the question of whether the defence has established that the McMuldroch footage exists must be considered in the context of the evidence that does exist. It goes without saying there can be no footage of Ms. McMuldroch placing the gun in the plant stand if Mr. Barton actually did so. The Crown’s most incriminating piece of evidence was the recording of Mr. Barton emerging from the apartment with Ms. Jacobs and doing something to the plant causing it to shake. Mr. Lockhart’s position was that this portion of the video showed Mr. Barton carrying the black “Popeyes” bag containing the gun out of the apartment and concealing it in the stand. Mr. Barton denied that suggestion, testifying that when he left the apartment with Jacobs his hands were empty.

[30] In response, Mr. Lockhart played the video recording frame-by-frame to the jury to demonstrate that Mr. Barton could be seen carrying a black object when exiting Unit 7. Although the defence argument was that this was simply a shadow, it is clear that the jury rejected this argument. Having reviewed the footage, it appears clear that, contrary to his testimony, Mr. Barton was indeed holding a black object in his right hand when leaving Unit 7 and left the area of the plant with his hands free of any items. This constitutes overwhelming evidence that Mr. Barton placed the gun in the plant stand.

[31] For these reasons, I find that the defence has failed to establish the existence of any video footage which could show that it was Ms. McMuldroch who planted the gun in the plant stand.

THE CROWN’S CLOSING ADDRESS AND THE CHARGE TO THE JURY

Procedure on this Motion

[32] Even though this finding decides the Charter application, I find it necessary to comment on two additional arguments made on behalf of Zachary Barton: the nature of the Crown’s closing address and the effect of the jury charge.

[33] In hearing submissions on the application, I declined Mr. Rusonik’s preliminary request to hold an in camera hearing to remove the mask protecting the identity of the confidential informant. Instead, with the consent of both parties, I considered the issues set out below on the hypothetical basis that the informant was indeed Melissa McMuldroch.

The Crown’s Closing Address

[34] Mr. Rusonik criticises the comments made by Mr. Lockhart in his closing address on McMuldroch’s importance to the verdict, categorising these remarks as a declaration that Ms. McMuldroch was not the anonymous caller.

[35] The extract under attack is reproduced as follows:

Now what do we do about Ms. McMuldroch? She's on video knocking at Mr. Barton's door 18-odd minutes before Mr. Barton and Miss Jacobs come out. Did she call police? Is she a crazy chick, as Mr. Barton said she is? My submission it doesn't matter. It doesn't matter who called the police for your deliberations. What matters is that there is no evidence other than Mr. Barton that suggests she ever possessed that firearm, or that she ever planted underneath that plant. The text messages are not a confession. Read them on their face. They are a threat to call police. Maybe she did call police, maybe she didn't. Maybe she had knowledge about Mr. Barton from their relationship; maybe she acted on it, maybe she didn't. That doesn't matter. What matters is the evidence, and beyond Mr. Barton saying so, there is no evidence that she possessed that gun or planted that gun underneath that cylinder. If she planted that gun, there would be video of it, and it would be in police possession and it would be before you. There is no video because, in my submission, that never happened. [emphasis added]

[36] Mr. Rusonik submits that in order to advance Mr. Barton’s defence, he had to establish two inferences as being reasonably true: (1) Ms. McMuldroch was the caller who alerted the police to the gun; and (2) the police had missed or failed to preserve video of Ms. McMuldroch hiding the gun in the plant stand (“the two inferences”).

[37] Without both of these inferences, says Mr. Rusonik, it would become unreasonable for the jury to assume that Ms. McMuldroch concealed the gun. Based on the premise that Ms. McMuldroch was the caller – and that Mr. Lockhart knew this to be the case – Mr. Rusonik argues the Crown’s address improperly foreclosed his argument by indicating the opposite.

[38] I have already found that the defence has failed to demonstrate any lost evidence – a finding which settles the issue. However, for the following reasons, I also reject the supposition that the Crown’s submission had the effect attributed to it by Mr. Rusonik.

[39] First, I disagree with Mr. Rusonik that the jury had to find both of the two inferences as being reasonably true. A finding by the jury that video of Ms. McMuldroch concealing the gun existed would, on its own, have been sufficient to raise a reasonable doubt and result in an acquittal.

[40] Whilst Ms. McMuldroch’s identity as the informant might have assisted the defence in their position that she placed the gun in the plant, the jury’s rejection of this claim would not end the matter. The jury could choose to believe Mr. Barton’s testimony or find his evidence raised a reasonable doubt when viewed alongside all of the other evidence including Ms. McMuldroch’s threatening text messages.

[41] Secondly, and more importantly, I do not read Mr. Lockhart’s submissions as telling the jury that Ms. McMuldroch was not the caller. The entire passage must be read in context. If anything, Mr. Lockhart’s choice of words appeared to indicate, for the first time, that Ms. McMuldroch might have been the person who contacted the police.

[42] Mr. Rusonik’s argument is based on two sentences within a much larger message, the real and unmistakable substance of which was that the identity of the caller was a red herring and irrelevant to the issue of guilt. This was the Crown’s position and one that it was entitled to impart to the jury.

The Charge to the Jury

[43] Finally, Mr. Rusonik submits that the charge to the jury “gutted” Mr. Barton’s defence by eliminating the position that the police withheld video evidence to protect the identity of the confidential informant.

[44] The impugned portion of the charge is reproduced as follows:

You have heard about the legal obligation imposed upon the police when they receive an anonymous call reporting a crime. This legal duty has been created to ensure that those reporting a criminal offence can do so safe in the knowledge that there will be no retaliation or retribution for doing so.

The protection for informants encourages the reporting of criminal acts and can aid the investigation of an offence.

You have heard in this case that there was an anonymous caller who informed police that there was a gun at Mr. Barton’s apartment. You should take nothing from the fact that the police took steps to conceal the identity of the caller when writing their notes. They would be remiss if they did not do so.

However, with respect to the video seized by the police, there is no evidence that any video footage was withheld by the police because of the duty to protect an anonymous informant.

[45] By way of background, it is important to understand why this instruction was given to the jury. In his closing address, Mr. Rusonik referred to the duty of the police to protect confidential informants and “the incomplete video record”. He added that when Sergeant Jackson viewed the video “he was already aware of the vetting requirement to hide evidence of the caller’s identity and he was govering himself accordingly.” He quoted Sergeant Jackson’s evidence, referred to in previous paragraphs. He then added:

He [Jackson] specifically agreed his normal duty to be full frank and fair was the opposite in a situation like this one. He specifically acknowledged that he cannot say that some of what he seized has not been vetted away by someone else. Answer: the only files that I seized- I - that I downloaded specifically and brought back to Det. Miron were from the third floor. Answer: I - I can’t I can’t tell you for sure if that was - if that was 100% the footage that I seized. [emphasis added]

[46] Mr. Rusonik then commented on Sergeant Jackson’s evidence with respect to Ms. McMuldroch’s demeanour when caught on video outside Unit 7, implying that Sergeant Jackson’s viva voce description appeared to match Mr. Barton’s evidence of Ms. McMuldroch banging on his apartment door. The clear message was that Sergeant Jackson was seemingly describing undisclosed footage he had previously seen of Ms. McMuldroch.

[47] Finally, Mr. Rusonik made the following comments about the police duty to protect the informant and its interrelation with the duty to disclose:

There is no evidence the police seized all of the relevant available video coverage. There is evidence that they had a reason not to have. Mr. Lockhart is going to ask you to ignore the fact that for some reason someone seized footage of [McMuldroch] leaving the building but nothing of her ever entering it and walking over the second floor landing that would have shown if she was ever carrying anything. Again, while it is true that the police have the duty to honour a caller’s request to remain anonymous it is also clear that this duty runs completely contrary to another duty to be full, frank and fair in disclosure. It’s also obvious that it creates an incentive or an excuse to be less than full, frank and fair and even to be less than honest.

I submit to you, you saw that happen right in front of you when officer Alderdice tried several ways to tell you the words in his notes “towards apartment 7 where the call originated”. He tried to tell you several ways that those words that he wrote in his notes did not mean the call came from apartment 7 or at apartment 7. And remember this gem from officer Mustovski’s notes - this is from 1.15 pm the next day “’Blank’ called. ‘Blank’ is worrying about the case. I advised ‘Blank’ that all identifiers will be vetted”.

[48] These submissions were troubling in their inaccuracy, unfairness to witnesses, and their potential to mislead the jury.

[49] First, there was no acknowledgement - specific or otherwise - by Sergeant Jackson that he could “not say that some of what he seized has not been vetted away by someone else.” There was nothing in Sergeant Jackson’s testimony that suggested any vetting of the videos that he downloaded. Significantly, that proposition was never put to him. As described earlier, the passages quoted by Mr. Rusonik indicated that Sergeant Jackson could not remember the footage, something he clarified later when he testified about “going back” to review the material because he “hadn’t seen it since that night.”

[50] Secondly, none of the very serious allegations made in Mr. Rusonik’s address were ever put to the police. Fairness dictated that if Mr. Rusonik wished to accuse the police of deliberately and dishonestly withholding evidence demonstrating Mr. Barton’s innocence, it was incumbent upon him to confront the police with those accusations so that they could respond.

[51] As I have described in previous paragraphs, when the failure to pursue this line of questioning was put to Mr. Rusonik, he responded by saying that there was no witness to whom these questions could be asked and suggestions could be made. That explanation does not tread water: the Crown called the officer who had seized the video (Sergeant Jackson); the officer who had taken receipt of the recordings before disclosing them (Detective Miron); and the lead officer of the investigation (Sergeant Alderdice). Any and all of these witnesses should have been given an opportunity to respond to the allegations made later by Mr. Rusonik. The failure to do so created an unfairness that mandated correction.

[52] The failure to cross-examine did not end there. At no point did Mr. Rusonik ever ask Sergeant Jackson whether he viewed footage of Ms. McMuldroch bending down by the plant stand as testified to by Mr. Barton. When asked, on this legal argument, about why he had not done so, Mr. Rusonik replied that he did not know.

[53] Thirdly, the submissions were capable of misleading the jury into thinking that it was legally possible for the police to withhold video footage showing Ms. McMuldroch at the plant stand in order to protect her identity if she was the anonymous caller. Of course, that was not an option open to the prosecution. If the police and the Crown were in possession of evidence that in any way cast doubt on Mr. Barton’s guilt, they would have been obliged to disclose that material to the defence. If the Crown felt that disclosure of any exonerating footage might identify the informant, they would have to choose between doing so or staying the charge.

[54] I repeat, not for the first time in these reasons, that when the defence position is viewed through this perspective, it is bewildering that the allegations made in the closing address were never explicitly put to a single police witness.

[55] As a result of the defence submissions, the charge to the jury could have justifiably been far more expansive addressing all of the above points. The single sentence instruction that was actually given - and now complained of - was crafted to correct these problems without criticising defence counsel and his strategy. That instruction did nothing more than spell out the reality of the situation: there was no evidence that any video material was withheld under the guise of protecting informer privilege.

[56] For the above reasons, the Charter application to stay the proceedings or order a new trial is dismissed.

II. SENTENCING

[57] Following the trial, both parties consented to the evidence heard by the jury to apply to a judge alone trial of a second indictment alleging two counts of possession of a firearm while prohibited from doing so by reason of a court order. I found Mr. Barton guilty of both counts.

[58] As a result of these convictions, I turn to the question of sentencing Mr. Barton for these offences.

[59] The Crown submits that a global 12 year sentence is appropriate given the seriousness of the offences, Mr. Barton’s criminal record, and the principles of sentencing codified in the Criminal Code. Mr. Rusonik, on the other hand, concedes the seriousness of the offence and the need for a severe sentence but requests a sentence of 8-9 years.

[60] Zachary Barton is now 32 years of age and unmarried. He had a difficult childhood with no real parental figures other than his grandmother with whom he continues to have a close relationship. At his trial, Mr. Barton testified that he had been dealing drugs - specifically crack cocaine - since his teenage years.

[61] Mr. Barton has an unenviable record for someone so relatively young. He has a string of youth court offences for dishonesty and violence. His first adult conviction in June 2004 was for the offences of carrying a concealed weapon and dangerous operation of a motor vehicle. He received 15 days imprisonment consecutive to each count. In August 2004, he was sentenced to one day’s imprisonment and 12 months’ probation after having served 28 days pre-sentence custody for weapons offences.

[62] Significantly, he has three previous convictions for firearms offences. On 20 July 2005, he was convicted of two counts of possession of a prohibited or restricted firearm, two counts of pointing a firearm, uttering threats, carrying a concealed weapon, and other related firearms offences including various breaches of prohibition orders. He received 2 years and one day on each count in addition to 4 months served in pre-sentence custody. On 12 May 2008, he was convicted of possession of a prohibited firearm along with a breach of an order prohibiting him from possessing firearms. He was given a 30 month sentence in addition to the 9 months that he had served in pre-sentence custody.

[63] At this hearing, the Crown tendered certified copies of the informations containing the 20 July 2005 convictions. These revealed that the convictions related to two separate incidents, each involving the use of a different firearm. Accordingly, the case at bar would be his fourth firearms conviction.

[64] The possession of guns in the Greater Toronto Area is no longer an event that surprises these courts. The use of illegal firearms in this city has been the subject of much judicial condemnation yet its prevalence appears to show no sign of abating. Guns exist to injure, maim, and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents, and children suffer the trauma of a loved one lost to mindless violence wrought by the use of firearms. Witnesses to the use of these weapons may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences. Regrettably, a small minority of our society choose to ignore that message. Zachary Barton appears to be one of those offenders.

[65] The firearm in this case, an Intratec DC-9, was not a toy. It was equipped with a laser sight, loaded with 37 rounds of ammunition in an over capacity magazine, and had one round in its chamber which was ready to fire. A search of Mr. Barton’s apartment led to the further discovery of 16 rounds of ammunition.

[66] Without repeating the actual principles, I am mindful of the guidance set out in ss. 718, 718.1, and 718.2 of the Criminal Code. Deterrence and denunciation of gun related offences is a major factor: R. v. Danvers (2005), 199 C.C.C. (3d) (Ont. C.A.), at paras. 77-78. The case law provided by the Crown indicates a range of eight to thirteen years when an offender is sentenced for firearms offences. I agree with Mr. Rusonik that the higher end of that range does not correspond factually with the case at bar. In R. v. Lambert, 2011 ONSC 3906, Kelly J. sentenced the offender to 13 years imprisonment. However, he had been convicted of 40 counts of possession of loaded handguns and had 45 previous convictions imposed before he had reached the age of 20.

[67] The cases appear to support the proposition that the range for similar firearms related offences is within the 8 to 10 year range.

[68] For example, in R. v. Alexander, 2012 ONSC 6117, Thorburn J. imposed a global sentence of 10 years after the offender was convicted of seven firearm offences and drug related offences. He also had a lengthy criminal record which included a previous conviction for a firearm. In R. v. Dunkley, 2014 ONSC 4893, the offender was sentenced to a global sentence of 10 years after being convicted of seven firearms offences including one offence of possession of a Taser. In this case, the accused was in possession of a loaded handgun in a vehicle. In R. v. Brown, 2014 ONSC 7285, Dambrot J. imposed a sentence of 9 1/2 years after police searched a home in which the offender was a guest and discovered a loaded firearm, ammunition, and a small amount of drugs. The offender had a lengthy record which included several firearms offences.

[69] There is no doubt that this is a serious offence which is aggravated by the following factors:

• The gun was loaded with a bullet in the chamber ready to be fired;
• Additional ammunition was close at hand in Mr. Barton’s closet;
• Mr. Barton has a significant criminal record with three previous convictions for firearms offences;
• The gun was used - by Mr. Barton’s own admission - as part of his drug dealing business. I agree with Mr. Lockhart that the use of the gun in this manner could have devastating consequences where a “Wild West shootout” following a drug dealing clash would be a real possibility; and
• Mr. Barton was subject to two court orders forbidding the possession of any firearms although I remind myself that since these orders are the subject of additional charges, they cannot be counted twice.

[70] Although it is not an aggravating factor, Mr. Barton does not receive the significant discount that would apply to a plea of guilty.

[71] During the course of the sentencing hearing, I raised the issue of the so-called “jump principle” as the Crown asks I impose a sentence far greater than that previously experienced by Mr. Barton. I recognise that the impact of this principle is attenuated when the offence is very serious and denunciation and deterrence are of paramount significance as is the case here. In those circumstances, a leap in sentencing is justified if it is to have meaning. I note, as pointed out by the Crown, that Mr. Rusonik’s own suggested sentencing range would also constitute a significant increase in Mr. Barton’s sentencing record.

[72] Balancing these considerations, I am of the view that the appropriate sentence in this case would be a global one of 10 years minus any pre-sentence custody served by Mr. Barton. Both counsel agree that Mr. Barton has served 26 months in custody and, by operation of ss. 719(3), 719(3.1) of the Criminal Code, and the Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26, he is entitled to credit at the rate of 1.5:1 which amounts to a total of 39 months. The remnant of the sentence to be served would be 6 years, 9 months.

[73] On the first indictment, the sentence is allocated as follows:

• Count 1: Possession of Loaded Prohibited Firearm - 9 years imprisonment.
• Count 2: Possession of Firearm without Licence - stayed pursuant to the principles of Kienapple v. The Queen, [1975] 1 S.C.R. 729.
• Count 3: Careless Storage of Firearm - 1 year concurrent to Count 1.
• Count 4: Possession of prohibited device - 1 year concurrent to Count 1.
• Count 5: Careless storage of a prohibited device - stayed pursuant to Kienapple.
• Count 6: Careless storage of ammunition 1 year concurrent to Count 1.

[74] On the second indictment before the court, the time allocation is as follows:

• Count 1: Possession of firearm whilst prohibited by court order made on 12 May 2008 - 1 year consecutive to Count 1 on the first indictment.
• Count 2: Possession of ammunition while prohibited by court order - 1 year concurrent to Count 1 on the second indictment.

[75] With respect to the ancillary orders sought by the Crown, I order that Mr. Barton be prohibited from possessing any weapons or firearms defined by the Criminal Code for life pursuant to s. 109 of the Code. I also order that the firearm be forfeited and destroyed. Finally, Mr. Barton will give a sample of his DNA pursuant to the primary ground under s. 487 of the Criminal Code.

S.A.Q. Akhtar J. Released: 5 July 2017