DATE: 20050628
DOCKET: C42955
COURT OF APPEAL FOR ONTARIO
MOLDAVER, ARMSTRONG and JURIANSZ JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Erika Chozik, for the appellant
Applicant/Appellant
- and -
DAVID JONES
Clayton C. Ruby, for the respondent
Respondent
Heard: June 17, 2005
On appeal from the judgment of Justice R.J. Walneck of the Ontario Court of Justice dated December 30, 2004.
JURIANSZ J.A.: (Dissent)
[1] The Crown seeks leave to appeal the conditional sentence of two years less a day plus three years probation imposed on Mr. Jones after he pleaded guilty to possessing a weapon for a purpose dangerous to the public peace and possessing a firearm while subject to a court order prohibiting him from doing so, contrary to ss. 88 and 117.01(1) of the Criminal Code.
[2] I would grant leave and allow the appeal, set aside the conditional sentence, and impose a custodial term.
Facts
[3] The charges arose from a two day armed standoff in which Mr. Jones engaged the police in Thunderbay on July 23-24, 2004 while he was suicidal.
[4] He had been separated from his wife, and reconciled with her in the fall of 2003. During the separation his mother had passed away and he had formed a relationship with a younger alcoholic woman. He had had a strained relationship with his eldest stepdaughter. After the reconciliation, the relationship with his girlfriend continued in a superficial way. He felt guilty and ended the relationship but in July 2004, he was informed that he was being charged with sexual assault of his girlfriend. (The record does not indicate that such a charge was ever laid.) About a week before the offences he told his wife about his girlfriend and the possibility of having contracted a sexually transmitted disease.
[5] Mr. Jones planned to commit suicide by shooting himself at a bowling alley/bar at 102 West Frederica Street in Thunder Bay where he and his brother worked while the owner was away. He went there on July 23, 2004 and locked himself in. He had taken a shotgun there a few days earlier. When his brother arrived, Mr. Jones told him to leave and threatened him with the shotgun. Mr. Jones made some phone calls to his step-daughter, who alerted the police. Mr. Jones told police he was going to kill himself, and warned them they should not try to enter or he would fire. The police could see him pointing the gun at the door while they were trying to communicate with him. At one point he threatened to take the gun out onto the street and professed indifference whether the police shot him. The bowling alley/bar was located in downtown Fort William in the midst of a business and shopping area. At one point some eighty-four officers from the Thunder Bay Police Force (approximately one third of the force) were on the scene, as was the bomb squad and emergency tactical unit of the O.P.P. The armed standoff lasted almost forty-eight hours, after which Mr. Jones gave himself up and then cooperated fully with the police.
[6] The gun Mr. Jones possessed was a 12 gauge single shot shotgun that he had modified so that it could take six shells. He left the gun and the shells in the bar when he gave himself up.
The Sentencing Hearing
[7] The sentencing hearing began with the judge indicating he had read the medical reports and stating that “this man needs help, not punishment.” After hearing brief submissions from the defence, the judge stated “the Crown is looking for custody. I would not give him custody. So the question is this, what terms do you want to release him on?” The judge then instructed the Crown and counsel to work out the conditions.
[8] The Crown insisted on conveying the facts of the offences to the court. When the Crown had finished doing so, the judge stated “now, here is what I am telling you. I told you from what I have read here, he does not need jail. He needs help, control… I am going to give you, you are to get together. There’ll be a C.S.O. plus probation. I want you two to work out the details. I am not going to shoot from the hip here... Work out the details.”
[9] The Crown stated he would like to make his “pitch” and tendered Mr. Jones’ criminal record. The Crown then began to refer to case law and the judge said “Give me the stuff that you want to file and I will read it.” After hearing brief submissions from the Crown, the judge retired to read the case law, saying “Unless I see something dramatic in here, I am not going to put him in jail. I am going to put him on strict conditions.”
[10] After a recess, the judge returned and stated he was imposing a conditional sentence plus probation and again instructed counsel to agree on the terms. Only after this did the judge decide the duration of the conditional sentence would be two years less a day.
[11] The terms of the conditional sentence allow Mr. Jones to be absent from his home for employment purposes, for medical and religious observances, to attend Alcoholics Anonymous meetings, to perform community service work, anytime with the written permission of the supervisor, and between 2 p.m. and 4 p.m. every day for “personal purposes.” No community service work was ordered but Mr. Jones was required to make a $2000 donation to charity. He was also required to attend and actively participate in such rehabilitative programs as recommended by the supervisor.
[12] I am satisfied that the sentencing judge demonstrated an unwillingness to consider entirely the position of the Crown thereby committing an error in principle. The sentence imposed is not entitled to deference and this court may impose the sentence it thinks fit.
Availability of a Conditional Sentence
[13] The statutory requirements for a conditional sentence are that the offender must have been convicted of an offence that is not punishable by a minimum term of imprisonment, that the court must impose a term of imprisonment of less than two years, and that the safety of the community would not be endangered by the offender serving the sentence in the community.
[14] The first two of these criteria are satisfied in this case. No minimum term of imprisonment applies. The Crown, on appeal, did not assert that a sentence of imprisonment of two years less a day was unavailable.
Safety of the Community
[15] The Supreme Court of Canada in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) provided guidance as to how courts should evaluate the danger to the community. Two factors should be taken into account: (1) the risk of the offender re-offending and, (2) the gravity of the damage that could ensue in the event of re-offence. If the risk of a re-offence is minimal, the damage that could follow were the offender to re-offend should also be taken into consideration. Where the risk of re-offending is minimal but the possibility of prejudice is great, a conditional sentence should not be imposed.
[16] Other factors to be considered under Proulx are whether the offender has previously complied with court orders, and whether the offender has a criminal record that suggests the offender will not abide by the conditional sentence. The risk of re-offence should also be assessed in light of the conditions attached to the sentence. The imposition of appropriate conditions to a conditional sentence may reduce the risk to a minimal one.
[17] The comments of the sentencing judge make clear that he was influenced, primarily if not exclusively, by the two medical reports before him that led to his conclusion that “this man needs help, not punishment.” He made no mention of any other objective of sentencing. I indicate below why the medical reports provide no basis for the sentencing judge to conclude that Mr. Jones could serve his sentence in the community without posing a risk to the community. Before doing that I explain why the medical reports, no matter how they are understood, do not mitigate Mr. Jones’ conviction for possessing a firearm while subject to a prohibition order.
Possession of a Firearm While Subject to a Prohibition Order
[18] Mr. Jones’ conviction for possessing a firearm while subject to a prohibition order was not based on his actions during the two-day armed standoff. The information before the court indicated that he had had possession of the gun for several years prior to the standoff. He committed the act of taking possession of the gun while prohibited long before he experienced any of the stresses that led to his suicidal feelings in July of 2004. He kept possession of the gun for the next several years. During this time, as the medical reports confirm, he understood full well that he was prohibited from having it. This deliberate and long-standing defiance of the court’s order, which was unconnected with any stresses or suicidal feelings, must be taken into account in sentencing.
[19] The primary function of a prohibition order is the protection of the public. Parliament, in providing for prohibition orders, recognized that the community is placed at danger by the unlawful possession of firearms. The very presence of guns in the community poses a risk that they may somehow come to be used. The mere possession of guns by persons who have already committed crimes that provide the basis for prohibition orders constitutes a great danger to the community.
[20] A prohibition order works to the advantage of the offender when being sentenced on the conviction that gives rise to the order. By addressing the protection of society, the making of such an order allows the court to pay greater heed to the rehabilitation of the offender, and reduce the weight on the need to separate the offender from society.
[21] The relative weighting of the objectives of sentencing is different when the offender is being sentenced for breach of the prohibition order. On this occasion, the offender has demonstrated an unwillingness to be governed by court orders and has not responded to society’s efforts to rehabilitate him. It has become apparent that society cannot be protected by a prohibition order, and so the objective of separating the offender from society to protect the community acquires greater weight.
[22] This case is illustrative. Mr. Jones was convicted of sexual assault with a weapon in 1997. The sentence he received, a six-month conditional sentence order and probation for one year, might have been more severe had the court not been able to prohibit him from possessing any firearms and ammunition for ten years. Rather than complying with that order, he took possession of a 12-gauge shotgun and kept it. When he did so he was unaffected by the stress or the suicidal feelings that are said to have led to the armed standoff. The mere fact that the gun was in his possession constituted a danger to the community because of the possibility that it might come to be used. In this case, if Mr. Jones had not committed the serious criminal act of taking possession of the shotgun some years earlier, it would not have been available to him when he came to experience stress later in his life. If he had not had the gun, he could not have used it to engage the police in an armed standoff.
[23] The record does not disclose how Mr. Jones came into possession of the gun or any explanation why he had it. The medical reports before the sentencing judge provide no information that could be understood to reduce the responsibility of Mr. Jones for possessing the shotgun while subject to a prohibition order. The fact that Mr. Jones, after being convicted of a crime of violence with a weapon, has failed to abide by a court order designed to protect the community from him, suggests that he is not amenable to being governed by the terms of the conditional sentence. Rather, the only inference is that it is important to him to be in a possession of a gun notwithstanding a court order prohibiting him from having one.
[24] On these facts, Mr. Jones’ possession of a firearm while subject to a prohibition order is in itself a sufficient basis for the court to conclude allowing him to serve his sentence in the community would endanger the safety of the community.
Possession of a Weapon for a Purpose Dangerous to the Public Peace
[25] The medical reports are relevant to the sentencing of Mr. Jones on the conviction of possession of a weapon dangerous to the public peace. They may be read to provide some mitigation for his possession of the gun during the armed standoff. However, in my view they provide no basis upon which the court could be satisfied that permitting him to serve his sentence in the community would not pose a danger. While Mr. Jones may have been feeling suicidal at the time of the standoff, the medical reports make clear that he knew what he was doing at all times and retained responsibility for his actions. These reports cannot satisfy the court that the risk of Mr. Jones re-offending is minimal and not greatly outweighed by the grave damage that could result from a re-offence.
[26] Dr. Stewart conducted a thirty-day psychiatric assessment of Mr. Jones at the forensic unit of Lakehead Psychiatric Hospital between July 29 and August 26, 2004. His diagnosis of Mr. Jones was that he suffered from alcohol abuse in remission, he had narcissistic personality traits, suffered relational stressors and stress from ongoing criminal proceedings, and exhibited “mild symptoms with some difficulty in social functioning.” He noted there was nothing to suggest that Mr. Jones’ mental state would have influenced his ability to appreciate the consequences of his acts or knowing they were wrong.
[27] Dr. Stewart noted that Mr. Jones’ wife indicated that he had episodes of becoming “impulsively violent.” He said Mr. Jones had been treated for depression in 1995, and remained “at increased risk of suffering a major depression, even though now he appears to be stable in this regard.” Dr. Stewart indicated that Mr. Jones maintained a defensive structure and failed to deal with stressors as they arose, causing them “to increase in severity and become unmanageable, potentially resulting in outbursts of violence or rage towards others or himself. He therefore remains a risk during times of undue stress as long as his coping style remains unchanged.” Dr. Stewart did not make a diagnosis of clinical depression. Dr. Stewart recommended psychotherapy and anger management courses.
[28] Dr. Sheppard, also of Lakehead Psychiatric Hospital, was treating Mr. Jones as an outpatient and had seen him on three occasions and had reviewed his clinical record. He indicated Mr. Jones had been cooperative and compliant. He did not make a diagnosis of clinical depression. Rather, he stated that Mr. Jones is responsible for allowing events to have unfolded as they did and that his behaviour during the standoff was not a product of a mental illness. Dr. Sheppard continued “His poor judgment was no doubt contributed to by the stress that he was under, by self-induced intoxication on alcohol, and, perhaps, by his own suicidal desperation.” Mr. Jones was continuing to participate in his program but “it is however too soon to be able to assess his progress in therapy, or to estimate the prognosis for favourable change.” Despite having stated a prognosis was premature, Dr. Sheppard expressed his opinion that the likelihood of a recurrence of behaviour similar to that at the time of the offences was low.
[29] Fresh evidence filed on the appeal contributes little to the analysis. Mr. Lewandowski, the psychometrist who has been counselling Mr. Jones, indicates that he appears to take the counselling process seriously and attends and participates in the sessions. Mr. Jones’ attitude has been positive, upbeat and pragmatic. There continue to be significant stressors in his life – relationship issues, legal issues, financial issues – and he has been distraught at times, but there have been no indications of suicidal ideation.
[30] In my view, these reports do not provide a basis upon which the sentencing court could be satisfied that allowing Mr. Jones to serve his sentence in the community would not pose a danger to the public. Quite the contrary, they indicate that until Mr. Jones is successful in changing his defensive structure, coping mechanisms, and the manner in which he deals with stress, he continues to be at risk of becoming violent should he experience stress and depression. The reports indicate that Mr. Jones has not been placed on any medication that might have the effect of assuaging his mental state and behaviour and thus constitute a change in circumstances.
[31] The last matter to be considered is whether the imposition of appropriate conditions to a conditional sentence might reduce the risk Mr. Jones poses to an acceptable level. The only term to be considered in this regard is the requirement that Mr. Jones attend and actively participate in such rehabilitative programs recommended by the supervisor. No doubt, Mr. Jones can benefit from the program he is in. However, until it is reported that Mr. Jones has succeeded in changing his coping mechanisms, it cannot be said that the risk to the community is a minimal one. The reports of Dr. Sheppard and Mr. Lewandowski do not disagree with the conclusion of Dr. Stewart that Mr. Jones remains a risk during times of undue stress as long as his coping style remains unchanged. They simply report on the progress that Mr. Jones is making in changing his coping style. They do not indicate that he has been successful in achieving a concrete change in his coping mechanisms and is no longer in need of treatment.
[32] Mr. Jones is to be commended for addressing his problems and it is a happy circumstance that he has coped well since the sentencing hearing. However, there continue to be stresses in his life. What additional stresses Mr. Jones may experience during the term of his conditional sentence cannot be known. What is known, even if one accepts Dr. Sheppard’s prognosis that the risk of a recurrence of his behaviour during the armed standoff is low, is that the gravity of the harm to the community should Mr. Jones re-offend is exceedingly high.
[33] I recognize Mr. Jones is unable to satisfy the court that he does not pose a risk to the community without successfully completing his treatment program, and he is unable to attend that program if he is in jail. However, Parliament has dictated that the safety of the community take priority by making the court’s jurisdiction to impose a conditional sentence dependent on the court being satisfied that the safety of the community will not be endangered.
[34] A period of incarceration, while not giving full weight to the objective of Mr. Jones’ rehabilitation, will provide the greater denunciation and general deterrence required by the gravity of these offences. A jail term effectively signals to all persons subject to prohibition orders that such orders must be obeyed and their breach will be treated seriously, and that guns should not be possessed in a manner that is dangerous to the public peace.
Conclusion
[35] I would grant leave and allow the appeal, set aside the conditional sentence, and grant the order requested by the Crown that Mr. Jones serve an additional seven months in jail. But for the Crown’s position I would have simply set aside the order permitting Mr. Jones to serve his sentence in the community, and required him to serve in jail the time remaining on his sentence of two years less a day. I would not disturb the other aspects of the sentence imposed.
“R.G. Juriansz J.A.”
MOLDAVER and ARMSTRONG JJ.A.:
[36] We have had the advantage of reading the reasons of our colleague Juriansz J.A. and while we agree with most of his analysis, we do not share all of it; nor, with respect, do we share his conclusion.
[37] Like our colleague, we agree that this is not a case in which deference must be shown to the sentence imposed by the trial judge. Moreover, having regard to the gravity and seriousness of the respondent’s crimes; the importance of public safety and the need to separate from society those who pose a serious risk to it; the need to denounce the respondent’s conduct and to deter him and others from defying court orders and engaging in dangerous and disruptive conduct, this was not a case at the time of sentencing for a conditional sentence. On the contrary, at that juncture, the respondent should have been sentenced to a mid to upper reformatory term followed by a lengthy period of probation.
[38] That said, our task at this point in time differs from that of the sentencing judge. We are not required to impose the sentence he should have imposed. Rather, we are required to fashion a fit and just sentence taking into account all of the relevant facts and circumstances, including the fresh evidence filed by the respondent with the consent of the Crown and the Crown’s submission that at this juncture, we should set aside the conditional sentence (of which the respondent has successfully completed five and one-half months) and send him to jail for a period of six or seven months.
[39] Much as we appreciate the Crown’s position and regard it as reasonable, we do not believe that the interests of justice would be served by sending the respondent to jail at this time. On the contrary, taking into account his faithful compliance with the terms of his conditional sentence order and the strides he has made and continues to make in his program of treatment, we believe that the interests of the respondent and society are best served by allowing the respondent to go forward with his rehabilitative efforts while at the same time, requiring that he comply strictly with the punitive terms of his conditional sentence order.
[40] Returning to the issue of deference, there are two reasons for concluding that we need not show deference to the sentence imposed by the trial judge.
[41] First, we take a dim view of the manner in which the trial judge conducted the sentence hearing. His conduct was precipitous and injudicious and it should not be repeated.
[42] That said, allowing for some informality in the proceeding and bearing in mind that in the end, through the admirable persistence of Crown counsel, the trial judge did listen to and consider the Crown’s position on sentencing, we would stop short of adopting the submission of Crown counsel on appeal that the trial judge’s conduct gave rise to a reasonable apprehension of bias. Nonetheless, we take it into account in our overall determination that we owe no deference to the sentence imposed by him.
[43] The second reason for holding that deference need not be shown stems from the trial judge’s reasons for sentence. In short, the trial judge gave virtually no reasons and he engaged in almost no analysis in arriving at the impugned sentence.
[44] In the circumstances, when that deficiency is considered along with the trial judge’s injudicious conduct, we have serious concerns that he may not have applied the correct principles of sentencing in arriving at the impugned sentence. Indeed, given its inadequacy, it is reasonable to infer that he focussed almost entirely on the respondent’s prospects for rehabilitation and virtually ignored the principles of denunciation and deterrence and the need to protect society from persons who pose a serious risk to its safety.
[45] With deference not an issue, we agree with Juriansz J.A. (largely for the reasons outlined by him) that the trial judge erred in imposing a conditional sentence at the time of sentencing. In the circumstances existing then, a conditional sentence did not offer sufficient protection to the public and it failed to adequately reflect the principles of denunciation and general and specific deterrence. As we stated earlier, at the time of sentencing, this case called for a mid to upper reformatory term to be followed by a lengthy period of probation.
[46] That said, although we accept that the case is a close one, we do not share our colleague’s view that the respondent should be sent to jail at this time. Over the past five and one-half months, he has faithfully complied with both the punitive and rehabilitative terms of his conditional sentence order. Significantly, the fresh evidence confirms that he is progressing well in his program of treatment and with every passing day, his positive behaviour lends credence to Dr. Shepphard’s prognosis, offered somewhat tentatively at the sentence hearing, that “the likelihood of a recurrence of behaviour similar to that at the time of the offence is, in my opinion, low”.
[47] Turning to the principle of denunciation, we note that the respondent’s criminal conduct attracted a good deal of notoriety in the Thunder Bay community. In the circumstances, this may be one of those situations, referred to by Lamer C.J.C. in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), where a conditional sentence does have a denunciatory impact. At para. 105, the Chief Justice observed:
The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.
[48] With respect to the principle of general deterrence, these reasons are meant to send a clear message to the community at large. People who wilfully disobey firearms prohibition orders and who knowingly engage in dangerous and disruptive behaviour can expect to receive severe sentences.
[49] As for the principle of specific deterrence, apart from the punitive aspects of the respondent’s conditional sentence order, he should know with certainty that if he breaches the terms of his order, he will likely serve the duration of the order in jail. As well, if he chooses to engage in further criminality, he should not expect lenient treatment from the courts.
[50] In sum, having regard to the relevant principles of sentencing, we think that it would be counterproductive at this time to send the respondent to jail for the six or seven months sought by the Crown. To do so would run the risk of frustrating the positive steps that the respondent has taken towards his ultimate rehabilitation. Such an approach would not serve the interests of the respondent or the community at large.
[51] In our view, at this juncture, society is best protected by permitting the respondent to go forward with his rehabilitative efforts, while at the same time requiring that he adhere strictly to the punitive aspects of his conditional sentence order.
[52] Accordingly, while we would grant leave to appeal, we would dismiss the Crown’s appeal from sentence.
“M.J. Moldaver J.A.”
“R.P. Armstrong J.A.”
RELEASED: June 28, 2005