COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.A.P., 2014 ONCA 141

DATE: 20140225

DOCKET: C56841

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

T.A.P.

Respondent

Roger Shallow, for the appellant

Paul Calarco, for the respondent

Heard: February 4, 2014

On appeal from the sentence imposed on March 5, 2013 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a jury, with reasons reported at 2013 ONSC 797.

Weiler J.A.:

[1] This is a Crown appeal as to sentence. The respondent, Ms. T.A.P., was charged with one count of possession of a loaded firearm contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46, and one count of possession of a firearm with the serial number removed, contrary to s. 108 of the Code. She pleaded guilty to these offences and received a sentence of 90 days, to be served intermittently, plus three years’ probation.

FACTS

[2] Ms. T.A.P. is a 45 year-old first offender of Aboriginal heritage. She has alcohol and cocaine addictions and is the mother of several children. On the night of the events in question, she had a domestic dispute with her partner that resulted in police intervention and her partner’s arrest. At the time of his arrest, her partner told the police that Ms. T.A.P. had a gun beside the cushion of the chair in her bedroom.

[3] The sentencing judge followed the decision of Molloy J. in R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25,which held that the mandatory minimum three-year sentence for a conviction on an indictment under s. 95(2) was unconstitutional. After an extensive review of Ms. T.A.P.’s unfortunate personal circumstances as well as the mitigating and aggravating factors for these offences, the sentencing judge concluded that a global sentence of up to two years was a fit sentence.

THE SENTENCING DECISION

[4] In order to appreciate why the sentencing judge imposed the sentence she did despite her conclusion that a sentence of up to two years was appropriate, a brief overview of the path she took is necessary. The sentencing judge considered the defence submission that the sentence should be served in the community. She observed that s. 742.1 provides that a person who is convicted of a serious personal injury offence as defined in s. 752 is not eligible for a conditional sentence. She then concluded that on the facts of this case, Ms. T.A.P. was convicted of a serious personal injury offence. Specifically, on the night of her arrest, Ms. T.A.P. was intoxicated and had the gun in her bedroom on a chair within reach of her children and others in the house. They were exposed to danger of harm. These facts were sufficient to bring this offence within the scope of a serious personal injury offence. In addition, possession of a loaded firearm is subject to a maximum of ten years’ imprisonment and for this reason as well a conditional sentence could not be imposed on this count.

[5] The sentencing judge gave reasons why, had she been of the opinion it was open to her to do so, a conditional sentence would have been appropriate. They include the following. The safety of the community would not be endangered. There was no evidence that Ms. T.A.P. actively sought the gun or that she had any intention of using it. She was a passive recipient. The sentencing judge also accepted Ms. T.A.P.’s evidence that she was afraid of both her former partner and drug dealers in her neighborhood. While Ms. T.A.P.’s reasons for having the gun were unwise and imprudent, she was truthful as to why she possessed the gun[^1] and there was very little risk of her re-offending. The goal of specific deterrence was met by Ms. T.A.P.’s brief pre-trial custody of 11 days, lengthy period of bail of almost three years and the impact of the charges on her. Specifically, she lost custody of her children from the time she was charged until sometime in 2011. Furthermore, Ms. T.A.P. had taken significant steps towards rehabilitation for her alcohol and cocaine abuse. She was actively engaged with Alcoholics Anonymous and Cocaine Anonymous. She was attending weekly bible study. She was actively and positively involved with her children’s therapy and her participation had been productive and beneficial to them. The report of the Hincks-Dellcrest Centre treating psychiatrist, Dr. Stein, indicated that the children had come to rely on their mother for their sense of security and well-being and that incarceration at this point would be devastating to Ms. T.A.P.’s two young girls. The sentencing judge therefore concluded that a conditional sentence would be in accordance with the principles of sentencing.

THE POSITIONS OF THE PARTIES & ANALYSIS

[6] On appeal, the Crown initially took the position that the sentencing judge erred in following the 2012 Smickle decision with respect to the unconstitutionality of the mandatory minimum sentence for the s. 95 offence. After the Crown filed its factum appealing Ms. T.A.P.’s sentence, this court rendered its decision in R. v. Smickle, 2013 ONCA 678, agreeing that the three-year mandatory minimum sentence was unconstitutional. That part of the Crown’s appeal is therefore moot.

[7] The Crown maintains however that the global sentence imposed is manifestly unfit and seeks a global sentence of two years less a day. It submits that, prior to the amendment to the Criminal Code introducing a mandatory minimum three-year sentence for cases in which the offence of possession of a loaded handgun was prosecuted by way of indictment,the range of sentences was between two years less a day and three years. Young or first-time offenders who had good rehabilitation prospects and who pleaded guilty were typically sentenced at the low end of this range. The Crown also directs us to this court’s decision in R. v. Smickle, 2014 ONCA 49, at para. 19, where, in referring to the twenty-seven year-old first-time offender who was about to take his picture with a prohibited loaded handgun when arrested, the court stated, “[o]ffences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.”

[8] As indicated, Ms. T.A.P. is a first-time offender who pleaded guilty. At the time of her sentencing on March 5, 2013, the evidence indicated that she had taken significant steps toward rehabilitation during the lengthy period when she was on bail after being charged on March 28, 2010.

[9] Almost a further year has passed from the time of sentence to the hearing of this appeal. Ms. T.A.P. has served the custodial portion of her sentence and 11 months of her probation. The fresh evidence filed on appeal with the consent of the Crown supports the conclusion that Ms. T.A.P. continues her rehabilitation. A letter from the Children’s Aid Society states that she has taken “great strides in addressing her addiction issues along with her parenting.” The letter from Dr. Stein, states that “[Ms. T.A.P.] is clearly a caring and loving mother who is trying hard to put her children’s needs first” and re-iterates that if Ms. T.A.P. is put in jail, the children’s mental health will worsen and the impact will be “nothing short of devastating” on them. The children’s school is also supportive of Ms. T.A.P.

[10] Having regard to the particular circumstances of this case, the Crown concedes that it would not be in the interests of justice for Ms. T.A.P. to go to jail. It is in the interests of the community if Ms. T.A.P. is permitted to continue along the rehabilitative path that she has followed since the time that she was charged. Rather, the Crown submits that, instead of the global sentence imposed for both counts, a sentence should be imposed on the individual counts. The 90-day intermittent sentence and probation would apply to the s. 95(1) count. In addition, the Crown seeks a further consecutive sentence of 21 months less a day on the s. 108 count, to be served in the community. The maximum penalty for possession of a firearm knowing that the serial number has been defaced or removed, when prosecuted by way of indictment, is a term of imprisonment not exceeding five years, and the offence does not qualify as a “serious personal injury offence.” Nor does the offence carry a minimum term of imprisonment. Therefore, a conditional sentence was available under s. 742.1 in relation to the s. 108 count. The Crown’s proposal would make the global sentence two years less a day, plus probation for three years.

[11] Counsel for Ms. T.A.P. agreed in his factum and in oral argument before us that the sentencing judge erroneously ruled that a conditional sentence was not open to her and that, but for her error, she would have imposed a conditional sentence.

[12] There appears to be no issue that, while the sentencing judge’s conclusion that a conditional sentence was statutorily unavailable is correct with respect to the count under s. 95(1), it is not correct with respect to the count under s. 108. The attention of counsel was focused on s. 95(1) and it does not appear that the sentencing judge had the assistance from counsel respecting s. 108 that this court has had.

[13] The decision of Moldaver J.A. (as he then was) in R. v. Ploumis (2000), 2000 CanLII 17033 (ON CA), 150 C.C.C. (3d) 424, (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No. 69, at paras. 23-26, holds that it can be appropriate to add a conditional sentence to a custodial sentence of jail if the total sentences do not exceed two years less a day.

[14] Furthermore, the Criminal Code makes clear that, if it is possible and appropriate, sentencing judges ought to impose a sentence on each count as opposed to simply imposing one global sentence. Section 725(1)(a) of the Criminal Code states that a court “shall consider, if it is possible and appropriate to do so, any other offences of which the offender was found guilty by the same court, and shall determine the sentence to be imposed for each of those offences.”

[15] When a sentencing judge does nevertheless impose one global sentence for two or more counts, s. 728 of the Criminal Code applies. Section 728 states:

Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

[16] Considered together, these two sections mean that sentence should be passed on each count on which an accused has been found guilty but a single global sentence on one or more counts will not be invalidated provided the sentence may be justified by any of the counts. [^2]

[17] In this case, however, the sentencing judge gave reasons why a conditional sentence of two years less a day would have been appropriate. The sentence she imposed was due to the limited and erroneous view she took of her options as to sentence. Having regard to the reasons of the sentencing judge, the submissions of the Crown, the circumstances of this case and the fresh evidence filed by defence counsel, I would therefore allow the appeal.

[18] I would set aside the global sentence imposed by the sentencing judge and in its place substitute the following: on count 1 for the offence under s. 95(1), Ms. T.A.P. is sentenced to 90 days’ imprisonment to be served intermittently, plus 3 years’ probation; on count 2 for the offence under s. 108, Ms. T.A.P. is sentenced to a conditional sentence of 21 months less a day, to be served consecutive to count 1. As to the terms of the conditional sentence, I would adopt the terms set forth in the Appendix to Ms. T.A.P.’s counsel’s factum. The remaining period of probation is frozen until the conditional sentence has been served. The result is a global sentence of two years less a day, plus three years’ probation.

Released: February 25, 2014

(K.M.W.) “K.M. Weiler J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree R.A. Blair J.A.”

[^1]: On appeal, the Crown takes issue with the sentencing judge’s reasons with respect to Ms. T.A.P.’s evidence as to why she possessed the gun. The Crown submits that she was storing the gun for a local neighborhood drug dealer. If the Crown relies on a fact as aggravating on sentencing, and the fact is not admitted, the Crown must prove that fact beyond a reasonable doubt. In this case, the record does not support the finding urged upon us by the Crown, and the Crown has failed to prove this aggravating fact beyond a reasonable doubt.

[^2]: Although the sentence may not be invalid, other courts have strongly discouraged the practice of global sentencing because of the practical problems a global sentence can occasion. See e.g. R. v. Tasew, 2011 ABCA 241, 282 C.C.C.(3d) 260, at paras. 72-80; R. v. Taylor, 2010 MBCA 103, 263 C.C.C. (3d) 307, at para. 10; and R. v. Thorpe (1976), 1976 CanLII 1403 (MB CA), 32 C.C.C. (2d) 46 (Man. C.A.) at p. 49.