Court of Appeal for Ontario

CITATION: R. v. Mills, 2016 ONCA 391

DATE: 20160524

DOCKET: C60082

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Christopher Mills

Appellant

Counsel:

Bruce Christopher Mills, acting in person

Brian Snell, duty counsel

Howard Leibovich, for the respondent

Heard: April 6, 2016

On appeal from the sentence imposed on January 6, 2015 by Justice Petra E. Newton of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant pled guilty to possession of stolen property, attempted break and enter, and break and enter. He received a global sentence of 42 months in prison as well as a lifetime weapons prohibition under s. 109(3) of the Criminal Code. The sole issue on this sentence appeal is whether the sentencing judge was entitled in law to impose a lifetime weapons ban.

Facts

[2] The charges related to three incidents. The facts were read in and agreed to by the appellant and involved three home break-in or attempted home break-in incidents. The appellant was charged on November 9, 2014 with possession of a stolen credit card from a home invasion that took place on August 31, 2014 at a home in Toronto. The Crown did not allege that the appellant was one of the two perpetrators of that break-in. The second charge related to September 19, 2014. At 2:03 in the afternoon the appellant rang the doorbell of a three-story duplex in Toronto, then smashed a pane of glass in the door, reached in and opened the door to the interior staircase. The appellant then banged on the door of one of the duplex units. When a person responded by voice, the appellant fled. He was later identified through DNA from a drop of blood left on the inside door handle of the duplex.

[3] The third incident occurred on November 9, 2014 at 10:44 in the morning at a house in Toronto. The appellant knocked on the front door and was observed by the homeowner through a window. There is no indication whether the appellant saw the homeowner. The appellant then went to the side of the house and opened the gate, then to the backyard where he sat down. After observing the appellant at the front door, the homeowner went down to his basement to watch the appellant and heard banging on a basement window. He called 911.

[4] When the police arrived, they found the appellant in the backyard. He told them it was his sister-in-law’s house, that there was no answer and that the keys were inside. The appellant had a crowbar inside his jacket as well as an exacto knife. He was arrested. The Crown alleged that the purpose of the crowbar and knife were only for entering the dwelling.

[5] Following his guilty plea, there was a sentencing hearing. The appellant has a very lengthy criminal record dating back to 1983 including 28 break and enters or attempted break and enters. The victims of the November incident filed a victim impact statement which included the following:

Both my wife and I were at home when the accused tried to break into our house. We were both very frightened by his actions that day, and we feared for our immediate personal safety. The emotional impact of his actions did not end with his arrest. Both my wife and I have been unable to sleep soundly since the incident, as the slightest noises in and around the house wake us, as we fear that someone may again be trying to break into our home. In addition, my wife no longer feels safe when she is home alone. No one should be made to fear for their safety in their own home.

[6] During the sentencing proceedings defence counsel indicated to the court that he was assuming there was a lifetime weapons prohibition in place. The Crown responded that he was asking for an order under s. 109 of the Code for life, adding: “But again, I’m quite sure it is academic in nature.” As part of the submissions, the Crown referred to the appellant’s drinking problem as an important contributing factor to his behaviour, and in that context in respect of his record, referred to the appellant as having terrorized a number of victims and leaving a lot of victims in his wake.

[7] The sentencing judge confirmed with counsel that the Crown was asking for a 48 month prison sentence, the appellant was asking for 36 months, and asked: “you are both content with the DNA and a 109 for life?” Defence counsel agreed. The appellant then chose to address the court. One of the issues was what resources the appellant would be able to access in prison, and the fact that he had asked for certain programs in the past but did not qualify for them. In that context, he stated:

… you know I’m not a violent person. That being said, you know scaring people is kind of violent, you know it’s violence. But you know so unfortunately corrections – I don’t fit the criteria for the type of support that I’ve asked for, you know.

[8] Defence counsel picked up on that, stating:

… because as he’s indicated, because he’s not a violent offender, he doesn’t fit within the programs provided with people who have committed physical offences and this is property offences mostly.

[9] In her reasons for sentence, the sentencing judge referred to the effect on the victims as an aggravating factor on sentence as follows:

Obviously general deterrence is a very significant factor. These facts had serious aggravating features of which you have some insight. People whose homes are broken into have tremendous impact after the event. That is very evident by the victim impact statement that was tendered as an exhibit in these proceedings. It is clear that both he and his wife were home when there was an attempt to break into the house and he mentions the emotional impact of your actions. But it did not end that day. It is clear that the negative sequelae have persisted.

There is a principle that people are certainly entitled to the sanctity of their homes and that’s why sentences for breaking and entering into dwelling houses have such significant effects.

You have indicated to me that you are sorry and that you apologized to the people that you scared. It was somewhat insightful when you said that although you are not eligible for certain types of programs because you are not deemed a violent individual, you seem to recognize that breaking into somebody’s house is a violent intrusion on the sanctity of their home and on the security of their home. So there is certainly a need to deter that type of behaviour and I think you recognize that.

[10] The sentencing judge did not mention the s. 109 order in her oral reasons, but she did endorse on the prohibition order a mandatory lifetime weapons prohibition under s. 109(3) of the Code.

Issue

[11] On the appeal, although his trial counsel had consented to the s. 109 order, the appellant appeals from that portion of the sentence. He argues that the order could not be imposed because there was no “violence against a person…threatened or attempted”, as required by s. 109(1)(a).

Analysis

[12] The parts of s. 109 of the Code that are relevant to this appeal provide:

109(1) Where a person is convicted, or discharged under section 730, of

(a) an indictable offence in the commission of which violence against a person was used, threatened or attempted and for which the person may be sentenced to imprisonment for ten years or more,

the court that sentences the person or directs that the person be discharged, as the case may be, shall, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, make an order prohibiting the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during the period specified in the order as determined in accordance with subsection (2) or (3), as the case may be.

(2) An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that

(i) begins on the day on which the order is made, and

(ii) ends not earlier than ten years after the person’s release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person’s conviction for or discharge from the offence; and

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

(3) An order made under subsection (1) shall, in any case other than a case described in subsection (2), prohibit the person from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.

[13] The appellant’s position is that his modus operandi is to avoid contact with homeowners by operating during mid-day and by knocking first to see if anyone is home. In particular, he says that on the facts of these three incidents, he did not encounter anyone and therefore he neither threatened anyone nor attempted to use violence on anyone.

[14] In a recent appellate decision from Nova Scotia, the court set aside a weapons prohibition imposed following a conviction for break and enter where there was no evidence of violence or of threatened or attempted violence. The court observed that violence is not a presumed element of the offence of breaking and entering a dwelling house: see R. v. Mackenzie, 2013 NSCA 109, 335 N.S.R. (2d) 120, at para. 6.

[15] However, in R. v. Samery, 2007 ONCA 643, this court found that implied threats of violence will satisfy the criteria of s. 109(1)(a). In that case the charge was breach of recognizance where the appellant made phone calls to his wife and children and was also present in the vicinity of their home by riding by on a bicycle or waving from a distance, all in breach of that recognizance. Although the appellant did not threaten or attempt to hurt his wife, she told him that he was frightening her, and it was an admitted fact on the guilty plea that she felt insecure in her living space as a result of his actions. In those circumstances, this court found that because the appellant continued his conduct after his wife told him he was frightening her, it was open to the trial judge to find that the appellant’s conduct amounted to implied threats of violence sufficient to meet the criteria of s. 109.

[16] Another relevant case is R. v. Simpson, [1994] O.J. No. 515 (Ont. Gen. Div.), where the appellant was convicted of conspiracy to rob, and where there was no actual victim, violence or threatened or attempted violence. In considering the meaning of “violence against a person is threatened” in the provision for a weapons prohibition contained in then s. 100, the court concluded that the requirement for the charge of “uttering a threat” that a threat be communicated, should not be imported into s. 100, given its protective purpose. The court was satisfied that because the offence of robbery is one where violence to a person is threatened, that is sufficient to allow a court to impose a weapons prohibition upon conviction for conspiracy to rob.

[17] In its decision in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 9, the Supreme Court of Canada confirmed that the sentencing goal of a weapons prohibition is protection of the public.

[18] In this case, while there was no actual threat or attempted violence, there was a perceived threat of violence by the victims, as evidenced by their victim impact statement. The appellant acknowledged that he scared the victims and that “scaring people is kind of violent.” The fact that the appellant has a lengthy history of committing this very offence adds credence to his knowledge and understanding of the threatening effect that his actions have on people who are home while he commits or attempts to commit a break and enter, and did in fact have in this case.

[19] In our view, in all the circumstances, and having regard to the appellant’s admitted knowledge of the impact of his actions when there are victims in the house, corroborated by the victims in their victim impact statement, it was open to the sentencing judge to find an implied threat of violence and impose a weapons prohibition.

[20] Leave to appeal sentence is granted, but the appeal is dismissed. The sentence is varied at the request of the Crown to reduce the lifetime weapons prohibition to a 10-year prohibition.

[21] The court is grateful to the Crown and duty counsel for their additional written submissions and assistance in this matter.

“K. Feldman J.A.”

“J. Simmons J.A.”

“S.E. Pepell J.A.”