COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2013 ONCA 680 DATE: 20131112 DOCKET: C55977

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Ian Chambers Appellant

James Lockyer and Diana Lumba, for the appellant Riun Shandler and Andreea Baiasu, for the respondent Moiz Rahman, Nancy Dennison and Andrea Bourke, for the intervener the Attorney General of Canada

Heard: February 21–22, 2013

On appeal from the sentence imposed by Justice Jane E. Kelly of the Superior Court of Justice on February 2, 2012, with reasons reported at 2012 ONSC 817.

Cronk J.A.:

I. Introduction

[1] On December 9, 2011, at the conclusion of a trial before Kelly J. of the Superior Court of Justice, the appellant was convicted of eight firearm-related offences: possession of a restricted firearm with ammunition (Count 1); possession of a firearm knowing its possession was unauthorized (Count 2); unauthorized possession of a firearm (Count 3); possession of a weapon obtained by the commission of an offence (Count 4); possession of property obtained by crime (Count 5); two counts of breach of a firearms prohibition order (Counts 6 and 7); and failure to comply with a recognizance (Count 8).

[2] On February 2, 2012, the appellant was sentenced to a total of eight years’ imprisonment, apportioned as follows:

Count 1 six years’ imprisonment;

Counts 2, 3, and 4 one year imprisonment on each count, concurrent to Count 1;

Count 5 six months’ imprisonment, concurrent to Count 1;

Count 6 one year imprisonment, consecutive to Count 1;

Count 7 one year imprisonment, consecutive to Count 6; and

Count 8 six months’ imprisonment, concurrent to Counts 6 and 7.

[3] The sentencing judge also gave the appellant credit, at the rate of one to one and one-half days, for 684 days spent in pre-sentence custody (1,026 days). In the result, the appellant’s effective sentence at trial was a term of five years and two months’ imprisonment.

[4] The appellant seeks leave to appeal and, if leave be granted, appeals from his sentence. He argues that: (1) the sentencing judge erred by ordering that the sentences imposed for Counts 6 and 7 (the breaches of two firearms prohibition orders) be served consecutively to each other; (2) the global sentence imposed offends the parity principle set out in s. 718.2(b) of the Criminal Code (the “Code”); and (3) the five-year mandatory minimum sentence for repeat firearms offenders established by s. 95(2)(a)(ii) of the Code is unconstitutional because it violates ss. 12 and 7 of the Canadian Charter of Rights and Freedoms (the “Charter”).

[5] For the reasons that follow, I would grant leave to appeal sentence and dismiss the sentence appeal.

II. Facts

[6] The pertinent background facts are not in dispute.

[7] On March 23, 2010, members of the Toronto Police Service conducted surveillance in a Toronto residential neighbourhood known to them as a high crime area involving drug activity, gun use, and the presence of competing gangs. A public junior school is located in the area. The police had received information that the shooting of an unknown male would take place in the area later that day, as some form of gang retaliation.

[8] A surveillance officer, Constable Loucks, saw the appellant leaning against an alcove at the entrance to a local bar. He observed the appellant holding what the officer thought might be a gun in the appellant’s jacket pocket. The appellant appeared to acknowledge other persons in the area and, in turn, various gang members in the vicinity appeared to acknowledge the appellant’s presence. One of the gang members also appeared to be holding a concealed firearm.

[9] A short time later, the appellant left the entrance to the bar and started to walk away. At about the same time, a marked police cruiser approached in the appellant’s direction. When a uniformed police officer got out of the cruiser, the appellant began to run towards a nearby residence. Uniformed police officers from the cruiser – Constables Malhi and Morris – followed him on foot.

[10] As the appellant ran into the driveway of the residence, he tripped over a small fence on the property. When he tripped, Constable Malhi saw that the appellant was carrying a handgun. The officer began to chase the appellant. He took out his own firearm, yelled a warning that the appellant had a gun, and shouted to the appellant to “get down” and to stop. The appellant dropped the handgun but continued to run towards the backyard of the residence. Constable Malhi reholstered his firearm and continued his pursuit of the appellant.

[11] As the appellant reached the back of the yard, he encountered a four or five-foot mesh fence. When the appellant attempted to jump over the fence, Constable Malhi caught up with him, grabbed him from behind, and forced him to the ground. A struggle ensued between the two men, during which Constable Malhi elbowed, kneed, and possibly kicked the appellant. Constable Morris arrived at the fence within minutes. The appellant continued to struggle but the two officers subdued him, and handcuffed and arrested him.

[12] A third officer retrieved the handgun discarded by the appellant. The gun, a .38 caliber Smith and Wesson revolver, contained three rounds of live ammunition. The chamber contained a bullet and the gun was ready for firing.

[13] The appellant was taken to the hospital for treatment of injuries occasioned during his scuffle with the officers. He sustained multiple injuries to his face, including to his left eye, cheek, and jaw. His lips, nose, and forehead were also injured. He received stitches for his wounds and Percocet was prescribed. He was then taken to the police station for processing. Once incarcerated, the appellant was treated for two days in the health care unit of the Metro West Detention Centre.

[14] At trial, the appellant sought a stay of all charges against him on the ground that the police used excessive force during his arrest, in breach of his ss. 7 and 12 Charter rights. The appellant agreed that if his stay application failed, convictions should follow on all charges. The trial judge dismissed the stay application and convictions were entered on the eight charges arising from the appellant’s possession of the handgun: R. v. Chambers, 2011 ONSC 7197. The appellant does not challenge this Charter ruling on this appeal.

III. Sentencing Judge’s Decision

[15] The appellant was 25 years old at the time of sentencing. This was his third conviction for firearms offences. In 2004, the appellant was convicted of possession of a loaded prohibited or restricted firearm. He received a suspended sentence (after credit for seven months and 15 days’ pre-sentence custody), two years’ probation and a mandatory firearms prohibition order under s. 109 of the Code. Four years later, in 2008, the appellant was convicted of possession of an unauthorized firearm and possession of a firearm contrary to the firearms prohibition order imposed in 2004. He was sentenced to one day in custody (after credit for seven months’ pre-sentence custody) and three years’ probation. A firearms prohibition order was again imposed under s. 109 of the Code.

[16] Thus, at the time of the present offences, the appellant was subject to two firearms prohibition orders. He was also on probation and judicial interim release. His bail terms precluded the possession of any firearms or other weapons.

[17] On sentencing, the Crown sought a period of incarceration of 13.5 years. Defence counsel at trial (not counsel on appeal) urged a total sentence of seven years’ imprisonment. The sentencing judge and both counsel proceeded on the basis that the mandatory minimum sentence of five years’ imprisonment for repeat firearms offenders provided for under s. 95(2)(a)(ii) of the Code applied in the circumstances. Before the sentencing judge, the defence did not challenge the constitutionality of this five-year mandatory minimum sentence provision.

[18] The sentencing judge imposed a total sentence of eight years’ imprisonment, less credit of two years and ten months for time served by the appellant in pre-sentence custody. This resulted in a sentence of five years and two months’ imprisonment, apportioned in the manner described above.

IV. Issues

[19] There are three issues:

(1) Did the sentencing judge err by directing that the sentences on Counts 6 and 7 (the breaches of two firearms prohibition orders) be served consecutively to each other?

(2) Does the appellant’s global sentence of eight years’ imprisonment offend the principle of parity of sentences set out in s. 718.2(b) of the Code?

(3) Does the five-year mandatory minimum sentence for repeat firearms offenders established by s. 95(2)(a)(ii) of the Code violate ss. 7 or 12 of the Charter?

V. Analysis

(1) The Consecutive Sentences Issue

[20] The sentencing judge imposed a one-year jail term for each of the appellant’s breaches of his 2004 and 2008 firearms prohibition orders. She directed that these sentences should be served consecutively to the six-year term of imprisonment imposed on Count 1 (possession of a restricted firearm with ammunition) and to each other. In so doing, the sentencing judge declined to treat each breach merely as an aggravating factor that would operate to lengthen the appropriate sentence imposed on the main offence. She held, at para. 37:

The sentences for breach of the prohibition order[s] must be consecutive in order to reflect Mr. Chambers’ commission of a separate and distinct offence – breaching a court order that specifically prohibited him from possessing firearms. I do not accept that the sentences for possessing the firearm in breach of two prohibition orders should be concurrent. They were two separate orders given on two separate occasions and give rise to two separate offences. Accordingly, I am sentencing Mr. Chambers to one year for each of those offences to be served consecutively. [Emphasis added.]

[21] The appellant contends that Counts 6 and 7 involve the same offence and the same legally protected interests. As a result, he submits, the sentences imposed on these counts should be served concurrently to each other. He does not dispute the sentencing judge’s ruling that the sentences on Counts 6 and 7 should be served consecutively to the underlying firearms possession offence (Count 1).

[22] I see no basis for interference with the sentencing judge’s ruling on this issue. As the appellant acknowledges, Counts 6 and 7 arose from breaches of two separate firearms prohibition orders. The orders were imposed at different times, separated by a period of approximately four years, and in respect of different firearms offences. As the sentencing judge observed, each prohibition order breach was a separate and distinct offence. That the social purpose of the prohibition orders was the same – to prevent the appellant’s possession of firearms – does not detract from the fact that the breaches constituted separate offences, referable to prohibition orders imposed at different points in time, in different circumstances.

[23] This court has recently upheld sentences of six months’ imprisonment for firearms prohibition offences, to be served consecutively to a firearm possession offence and to each other: R. v. Johnson, 2013 ONCA 177, 303 O.A.C. 111.

[24] The sentencing judge made no error in principle in sentencing the appellant on Counts 6 and 7. The decision whether the sentences imposed on those charges should be served consecutively or concurrently was hers to make.

[25] The sentencing judge’s discretionary decision to direct that the sentences imposed on Counts 6 and 7 be served consecutively, rather than concurrently, attracts deference from this court. As a majority of the Supreme Court stated in R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46:

In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit.

[26] The appellant does not suggest that the sentencing judge ignored any relevant factors when determining that the sentences in question should be served consecutively. Nor does he argue that the sentences on Counts 6 and 7, by themselves, produced an overall sentence that is demonstrably unfit.

[27] I note that the sentencing judge also ruled that the six-month term of imprisonment imposed for the appellant’s breach of his bail conditions (Count 8) was to be served concurrently, rather than consecutively, to the sentences imposed on Counts 6 and 7. The appellant’s bail order constituted a third court order prohibiting his possession of guns. The sentence imposed on Count 8 is consistent with the totality principle, which seeks to ensure that the total sentence imposed does not exceed the overall culpability of the offender: R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 126.

[28] This ground of appeal therefore fails.

(2) The Parity of Sentences Issue

[29] Section 718.2(b) of the Code provides:

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.

[30] This court has held that the principle of parity of sentences enunciated in s. 718.2(b) is intended “to preserve fairness by avoiding disparate sentences where similar facts relating to the offence and offender would suggest like sentences” (citation omitted): R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 18; and R. v. Mann, 2010 ONCA 342, 261 O.A.C. 379, at para. 16.

[31] However, while parity is a guiding principle of sentencing, it is not to be applied in an absolute fashion; rather, it is only one of several principles that must be taken into account by a sentencing judge in crafting a fit sentence. Consequently, the parity principle is not dispositive of the sentencing result in all cases involving similar offenders convicted of similar crimes: Mann, at para. 17.

[32] In this case, the appellant argues that the parity principle justifies a reduction in the length of his overall sentence. I disagree.

[33] As the courts have frequently observed, sentencing is a highly individualized and fact-specific exercise. As a result, sentences imposed for offences of the same type will not always be identical. In R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, the Supreme Court explained, at para. 36: “The principle of parity does not preclude disparity where warranted by the circumstances, because of the principle of proportionality” (emphasis in original). Further, in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90, the Supreme Court cautioned that an appellate court should intervene to minimize the disparity of sentences only where the sentence imposed by the trial judge is “in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”.

[34] In my view, the appellant has not met this high threshold for appellate interference with the sentence imposed by the sentencing judge. The appellant has been unable to point to any body of case law supporting the proposition that the total length of his sentence materially deviates from the sentences imposed on similar offenders for similar offences. This court has upheld a sentence of eight years’ imprisonment for a relatively young offender (21 years old) with only one prior weapons conviction committed in similar circumstances: R. v. Dene, 2010 ONCA 796, [2010] O.J. No. 5012.

[35] The appellant relies on the decision of this court in R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, to support his invocation of the parity principle. In my view, Brown does not assist the appellant. To the contrary, Brown supports the fitness of the appellant’s overall sentence.

[36] Brown pleaded guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order. He had a lengthy criminal record, consisting of 34 prior convictions, and was subject to a deportation order. He was also a repeat firearms offender. Like the appellant, Brown was bound at the time of his arrest by two firearms prohibition orders arising from two prior sets of convictions for firearms offences.

[37] In Brown, the sentencing judge determined that a global sentence of about eight years’ imprisonment would have been appropriate if Brown’s case had gone to trial. However, given Brown’s guilty plea, his co-operation with the police on arrest and the absence of any indication that he was involved in other criminal activity when he was arrested, the sentencing judge concluded that a six-year global sentence was appropriate. He gave Brown six months’ credit on a two-for-one basis for pre-sentence custody. This resulted in an effective sentence of five years and six months’ imprisonment.

[38] On appeal, this court held, at paras. 4 and 5, that the overall sentence imposed on Brown was demonstrably unfit, outside the appropriate range, and inadequate “to reflect the seriousness of [Brown’s] offences and [his] incorrigibility as an offender”. The court set aside the global sentence imposed at trial and substituted a sentence of seven years and six months’ imprisonment for the offence of possession of a loaded restricted firearm, less six months’ credit for Brown’s pre-sentence custody, for a total of seven years’ imprisonment. It also imposed a jail term of one year, to be served consecutively, for Brown’s breach of his firearms prohibition order. In the result, Brown was sentenced to eight years’ imprisonment, after credit for pre-sentence custody.

[39] The appellant’s six-year sentence of imprisonment for possession of a restricted firearm with ammunition (Count 1) was less than the comparable sentence imposed on Brown for possession of a loaded restricted firearm. Further, as in Brown, the appellant was sentenced to one year imprisonment, consecutive to Count 1, for each of his firearms prohibition order offences.

[40] It is true that, in contrast to Brown, the sentencing judge in this case recognized some potential for the appellant’s rehabilitation. However, unlike Brown, the appellant, when confronted by police, fled in a residential area while carrying a loaded firearm and subsequently resisted arrest, thereby exposing the involved police officers and nearby residents to the risk of serious harm. This conduct aggravated the seriousness of the appellant’s offences.

[41] I also note that, in Brown, this court once again emphasized, at para. 14: “Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.” These comments apply with equal force in this case.

[42] In the end, the overall sentence imposed on the appellant cannot be said to be demonstrably unfit. Indeed, I view it as lenient in all the circumstances.

(3) The Constitutional Issues

[43] Section 95(2)(a)(ii) of the Code provides that, upon conviction for possession of a loaded restricted or prohibited firearm and where the Crown proceeds by indictment, the offender faces a five-year minimum sentence of imprisonment where the conviction is a “second or subsequent offence”. Under s. 84(5) of the Code, an offence under s. 117.01(1) – possession of a weapon contrary to a weapons prohibition order – constitutes a “second or subsequent offence” for the purpose of s. 95(2)(a)(ii).

[44] The appellant attacks the constitutionality of this five-year mandatory minimum sentence provision for repeat firearms offenders. He submits that it offends both ss. 7 and 12 of the Charter.

[45] The appellant did not raise these issues at trial, instead advancing them for the first time on this appeal hearing. It is well-established that appeal courts generally will not entertain arguments not made at trial. This general rule applies to constitutional arguments raised for the first time on appeal, regardless of the constitutional remedy sought: see for example R. v. Roach, 2009 ONCA 156, [2009] O.J. No. 662, at para. 6. The appellant’s failure to mount his Charter ss. 7 and 12 arguments at trial deprives this court of the reasoned analysis of the trial court on these issues.

[46] In any event, in my view, we need not reach these constitutional issues in this case. Regardless of the mandatory minimum sentence of five years’ imprisonment established by s. 95(2)(a)(ii) of the Code, the circumstances of these offences and this offender, as outlined by the sentencing judge, amply justify the sentences imposed at trial. The fresh evidence filed on appeal does not alter this conclusion. The sentencing judge made no error in principle and the overall sentence imposed is not demonstrably unfit. In these circumstances, it is unnecessary to consider the appellant’s constitutional challenges to s. 95(2)(a)(ii) of the Code.

VI. Disposition

[47] For the reasons given, I would grant leave to appeal from sentence and dismiss the sentence appeal.

Released:

“NOV 12 2013” “E.A. Cronk J.A.”

“DD” “I agree Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree R.A. Blair J.A.”

“I agree M. Tulloch J.A.”