Court File and Parties

Court File No.: Kitchener 12-886 Date: 2013-03-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Keith Faria and Brian Quackenbush

Before: Justice G. F. Hearn

Heard on: November 30, 2012 and February 6, 2013

Reasons for Sentence released on: March 11, 2013

Counsel:

• M. E. Cullen, for the Crown
• B. Dempster, for the accused Keith Faria
• A. Reier, for the accused Brian Quackenbush

HEARN J.:

BACKGROUND

[1] On November 30, 2012 Keith Faria and Brian Quackenbush came before the court and entered pleas of guilty to counts of breaking and entering a residence and stealing firearms contrary to s. 98 of the Criminal Code and of trafficking in such firearms contrary to s. 99 of the Criminal Code. Section 98 is an indictable offence, carrying with it a maximum period of imprisonment of life. Section 99 has a maximum period of ten years imprisonment with a minimum period of imprisonment on a first offence, such as here, of three years.

[2] Following the pleas being entered an Agreed Statement of Facts was filed and pre-sentence reports ordered with respect to both accused. The matter was then adjourned to February 6, 2013 at which time full submissions were made. The sentencings of Mr. Faria and Mr. Quackenbush were then adjourned to today's date.

[3] Following the pleas being entered a Notice of Application was served by defence seeking an order that the minimum period of imprisonment set out in s. 99(2)(a) of the Criminal Code be declared of no force and effect and the accused should therefore be sentenced with no reference to a mandatory minimum period of imprisonment. The application asked that the court follow the decision of the Ontario Superior Court in Regina v. Smickle, [2012] ONSC 602 and of this court in Regina v. Lewis, [2012] ONCJ 413.

[4] The application was filed on behalf of both accused, a factum has been received on behalf of Mr. Quackenbush as well as a response from the Crown. When the matter came before the court on February 6, 2013 counsel for Mr. Faria indicated that Mr. Faria was not taking part in the application recognizing that the sentence properly to be imposed by the court would exceed the minimum period of imprisonment set out within s. 99(2)(a) in any event and, as a result, the constitutional challenge to that section was academic.

[5] The application, however, was argued on behalf of the accused Brian Quackenbush by counsel. The request of counsel for Mr. Quackenbush is that the court follow the decision of the courts in the cases referred to and declare that s. 99(2)(a) is of no force and effect and proceed with the sentencing of Mr. Quackenbush on the basis that there is no statutory minimum in place. It is my understanding that if the court is satisfied that the appropriate sentence for Mr. Quackenbush is in excess of three years, there is effectively no need to deal with the issue raised within the application.

[6] It should also be noted that on February 6, 2013 prior to submissions as to sentence being heard Mr. Faria entered a further plea of guilty to a count of breach of a probation order. The Crown proceeded by way of indictment on that particular charge. The facts were read in and the sentencing on that matter as well was adjourned to today's date.

CIRCUMSTANCES OF THE OFFENCES

[7] An agreed statement of facts has been filed as Exhibit #1 with respect to both accused. That statement sets out the facts supporting the charges pled to by the accused on November 30, 2012.

[8] Briefly with respect to the facts, they indicate that Mr. Faria became acquainted with a woman by the name of Chantelle Owens in the latter part of 2011. He moved into her residence for a short time period in 2012. That residence is situated in Cambridge and Ms. Owens resided there with her father, John Owens, who is a long-distance truck driver and was out of the residence as a result of his work for extended periods of time.

[9] Ms. Owens was trusting of Mr. Faria, considered him a boyfriend and provided him with a key to the residence. Mr. Faria only resided there a short period of time and left in early February 2012 to stay at other residences, one of which was the residence of the co-accused Brian Quackenbush. Apparently at that residence Mr. Faria shared a room with Patricia Stanford. As I understand the facts, Ms. Stanford resided at that residence with her two teenage children as well as the co-accused who was the father of the children.

[10] While residing at the residence of Chantelle Owens Mr. Faria became aware that her father had a large collection of firearms and ammunition, all properly registered and stored. While staying at the residence of the co-accused with Ms. Stanford, Mr. Faria became aware that one of their neighbours was associated with the Hell's Angels and could assist Mr. Faria if he wished to sell any "stolen firearms".

[11] On February 14, 2012 Mr. Faria entered the Owens' residence and removed three handguns and some ammunition. As a result of the contact made through Mr. Quackenbush, the stolen firearms were shown to Jordan Thomas, the neighbour, who then took the guns to an individual named Frank Strauss who is a full patch member of the Hell's Angels and sold the firearms to him for $800. The firearms were a .45, a .357 and an old .22 calibre handgun together with two boxes of ammunition for a .308.

[12] Mr. Thomas then turned the $800 over to Mr. Faria who advised Mr. Thomas in the presence of Mr. Quackenbush that he could get more firearms. Mr. Thomas expressed some interest in additional purchases.

[13] At that point Mr. Faria requested Brian Quackenbush and Patricia Stanford to go to the Owens' residence when no one was home to steal the remaining firearms and ammunition. They agreed to do that. On February 16, 2012 Mr. Faria contacted Chantelle Owens to confirm that she would be away from the residence that day.

[14] After that, during daytime hours on that date, Patricia Stanford drove Mr. Faria and Mr. Quackenbush to the Owens' residence where they were able to enter the residence utilizing the key that Mr. Faria had in his possession. At that time the three removed gun cabinets containing long guns and handguns as well as several cases of ammunition. All of the firearms were loaded into the vehicle of Ms. Stanford. The three then drove back to the residence of Ms. Stanford and Mr. Quackenbush and placed the items in the garage.

[15] Later that day Brian Quackenbush contacted Jordan Thomas and showed him the stolen firearms and ammunition. Mr. Thomas then contacted Frank Strauss who attended at the residence and purchased the stolen firearms and ammunition. In return Mr. Faria and Mr. Quackenbush were paid in quantities of marijuana and cocaine and the drugs were taken into the residence by the two accused. They then assisted Mr. Thomas and Mr. Strauss in loading the stolen items into Mr. Thomas' van.

[16] Mr. Faria agrees that he took the drugs with the intention to sell them and stored them in a room that he shared with Ms. Stanford.

[17] Upon the return to her residence Ms. Owens discovered the break and enter and contacted the police.

[18] On February 17, 2012 the police attended at the residence of Mr. Quackenbush and Ms. Stanford where Mr. Faria was staying. They asked if they could enter the residence as part of their investigation and that request was denied. It became apparent then to the accused that the police were investigating them and Ms. Stanford hid Mr. Faria in the back of her vehicle and took him to the home of his child's mother so Mr. Faria could visit the child prior to his arrest.

[19] On February 18, 2012 a search warrant was executed at the residence of Mr. Quackenbush and Ms. Stanford. Those two individuals were taken into custody as well as their children. During the search of the residence the police located a bayonet, a hunting knife and a leather revolver holster that had also been taken from the residence of Chantelle Owens.

[20] In the bedroom that was occupied by Mr. Faria and Ms. Stanford the search revealed a bag containing three large bags of marijuana weighing approximately 375 grams together with quantities of magic mushrooms, cocaine and oxycontin pills. In addition, electronic scales and a new package of baggies consistent with trafficking in a controlled substance were located.

[21] In a hallway dresser used by Mr. Quackenbush there was a bag of marijuana weighing approximately 30 grams also found. Mr. Faria acknowledged that the three large bags of marijuana were his and that he had already consumed the cocaine that he had obtained in the transaction with Mr. Thomas and Mr. Strauss.

[22] As noted, the facts clearly indicate that Jordan Thomas had brokered the sale of the firearms and ammunition to Frank Strauss, a full patch member of the Hell's Angels. All of those firearms and the ammunition have been recovered. However, there still are two firearms taken in the break and enters which were apparently sold to a yet as unnamed person in the Kitchener area that have not been recovered.

[23] With respect to the facts as well, when the matter was before the court on February 6, 2013 the Crown called evidence from Sgt. Andrew Harrington, an officer with the Waterloo Regional Police Service, who is the officer in charge of that service's "Guns and Gangs" division. He has been in that position since October of 2007 and spoke to the prevalence of firearms in the Region of Waterloo. He spoke of the duties and responsibilities of his particular division and noted that the Waterloo Regional Police Service currently monitor 350 persons within the Region of Waterloo with respect to firearms issues.

[24] Sergeant Harrington gave evidence with respect to the police initiatives to recover the firearms and ammunition. He spoke of the firearms and ammunition recovered in this matter as being the largest by far of any seizures made by the police within this region. The police investigation involving this matter was coded with the name of Project Recover and involved recovery of the weapons sold to Mr. Strauss and found both within this region and in Peel. He spoke of the police concerns with respect to the presence of the weapons within the community and understandably labelled the matter as a "huge public safety concern".

[25] Twenty-six of the firearms have been recovered. On February 29, 2012 seventeen firearms were recovered, being one revolver and sixteen long guns, together with 563 rounds of ammunition. On March 6, 2012 nine firearms were recovered, being five handguns and four long guns, together with almost 10,000 rounds of ammunition. Still not recovered are two outstanding firearms as noted.

[26] The seizure made by the Waterloo Regional Police Service was significant and represents not only one of the largest seizures of stolen firearms in this region to date but also within the province. A further concern here with respect to the firearms is not only the quantity stolen, but also the fact that they had been brokered to Hell's Angels, a recognized criminal organization which is actively involved, according to this particular witness, in violent crime within the province.

[27] When cross-examined by counsel for Mr. Faria the officer acknowledged that all but two of the firearms were recovered within a month and had the middle person, i.e. Mr. Thomas, not provided the information that he ultimately did the recovery would not have been made as quickly. The officer also indicated that to the best of his knowledge Mr. Faria had never been part of a "flagged group" nor had he been previously identified as being associated with any criminal organization.

[28] This officer further testified with respect to firearm issues specifically within the Region of Waterloo and the use of firearms in criminal matters within the region. Filed as exhibits to the sentencing of both Mr. Faria and Mr. Quackenbush are the Waterloo Regional Police Service's report of seizures of firearms for the period covering April 2009 to September 30, 2012 as well as a list of serious firearm investigations that have taken place within the Region of Waterloo between July of 2011 and November 2012 involving criminal offences and the use of a firearm.

[29] With respect to the facts concerning the charge pled to by Mr. Faria on February 6, 2013, he had been placed on probation for a three year period which was to follow a period of imprisonment for offences in September of 2010. One of the requirements of that particular probation order was that he report as required to a probation officer. He failed to do so between the months of October and December of 2011 and as a result that charge was laid. In addition, although not pled to specifically, further facts were read in with respect to a theft charge whereby Mr. Faria came into possession of a debit card. That card apparently belonged to someone he had just broken up with. He was able to access the account, made empty envelope deposits and then withdrew monies.

CIRCUMSTANCES OF THE OFFENDERS

(a) KEITH FARIA

[30] Mr. Faria was born on January 18, 1989. He was twenty-three years of age at the time of the offence and is currently twenty-four. A pre-sentence report is before the court setting out the background of Mr. Faria. During the sentencing he had a number of family members and other community members present in the courtroom showing that he has some support within the community.

[31] Mr. Faria does not come before the court as a first offender. In fact, he has a rather significant record for such a young adult offender. His record commences in 2003 as a youth with a break and enter and his youth record continues into 2006. Youth dispositions included periods of probation as well as time in custody and supervision while in the community.

[32] His adult record commences in June of 2007 when he was convicted of criminal harassment and failing to comply with a youth disposition. He received a relatively short, sharp sentence after spending some minimal period of time in custody and was placed on probation. There is a gap in his record then until September of 2010 at which time he received periods of imprisonment on a number of charges including a charge of break, enter and theft. I am told by the Crown that the total of that particular sentence was 355 days in custody after spending some seven days in pre-trial custody and a period of probation for three years. Mr. Faria was subject to that particular probation order when he committed the offences before the court.

[33] Following his conviction in 2010 he was also convicted in January 2011 of counts of breach of probation and theft under for which he received a short jail sentence concurrent to time being served. Then on July 18, 2011 there was a further breach of probation charge for which he received a four day period of custody after spending some 26 days in pre-trial custody.

[34] The pre-sentence report describes a "tumultuous upbringing" with respect to Mr. Faria. His parents separated with the offender living with his father for several years where he suffered physical abuse. He did not have contact with his mother for several years after his birth, although at age eleven he did meet with his mother and lived with her on occasion. Family and Children's Services was involved, resulting in foster placements for the accused. The pre-sentence report author notes that Mr. Faria's childhood offered him no stability or support. Both of his parents suffered as well from substance abuse issues.

[35] Notwithstanding his upbringing, Mr. Faria indicates he has a positive relationship with both of his parents at the present time. He was close to his maternal grandfather who passed away in 2011 and that has impacted him significantly. At the present time both parents are supportive and the father indicates that he is prepared to assist the offender once he deals with his substance abuse issue. His sister is also supportive and offers a residence to the offender upon his release if he can "keep himself out of trouble and do something positive with his life".

[36] Mr. Faria has a child from a previous relationship, a two year old daughter. I gather it was this child that he went to see prior to his arrest after becoming aware of the police investigation as noted in the Statement of Agreed Facts.

[37] His employment record is sporadic. His work history is poor and his longest term of employment appears to be only a few months. When not working he was in receipt of social assistance. It appears that most of his difficulties have arisen currently as a result of his alcohol and drug use.

[38] When sentenced in 2010 he served a portion of that period of time in a facility where he received some intensive treatment for those issues but acknowledges that upon his release he continued to struggle and ultimately relapsed. His involvement with drugs has included controlled substances which are extremely dangerous and serious.

[39] Mr. Faria has expressed his remorse to the probation officer preparing the report. He attributes his actions to his substance abuse issues and his poor choice of associates. The report indicates he lacks life skills, self-esteem, and confidence. Depression has been noted to be a concern for him over the past two years. This has in fact required that he take medication while he has been in custody. He acknowledges the medication seems to assist him. He appreciates that his poor choice of peers as well as his substance abuse issues immersed him in the criminal lifestyle that has been pretty much ongoing for the last number of years. He has expressed regret for his actions and wishes to lead a pro-social lifestyle upon his release.

[40] Mr. Faria spoke to the court and read a letter that he had drafted for sentencing purposes. That letter is marked as Exhibit #7 on his sentencing hearing. The letter shows clearly remorse, insight and a desire to "grow up and take responsibility for my actions" and "make a positive and productive change". The letter expresses regret for having lost his family, child and "most importantly myself due to being afraid and scared to ask for help". Notwithstanding the comments of Crown counsel with respect to the prospects for rehabilitation, Mr. Faria's comments speak otherwise and the court is satisfied that rehabilitation is a factor still to be seriously considered when dealing with Mr. Faria.

(b) BRIAN QUACKENBUSH

[41] Mr. Quackenbush is 40 years of age and he, too, has a previous criminal record. His record dates back to 1991 and continues thereafter rather regularly with his last entry being for two counts of assault on December 22, 2011 for which he received a suspended sentence and was placed on probation for 18 months. He, too, then was on probation at the time of these offences before the court and had only been sentenced a short period of time before the offences occurred.

[42] His record is comprised largely of property and drinking and driving offences. He does, however, have assaults on his record together with counts of uttering threats.

[43] Notwithstanding his record, it would appear that the longest period of time he has ever spent in custody is a sentence of four months imprisonment.

[44] Mr. Quackenbush's upbringing seems to have been unremarkable. He describes his family as "law-abiding", although it is noted in the report that his brother has an extensive criminal record. He has been in three long term common-law relationships, has never married but has "seven, I think" children from those relationships. Two of the older children were in fact residing with him at the time of his arrest and lived at the residence where the firearms were stored. Three of the remaining children are apparently Crown wards.

[45] Mr. Quackenbush's educational history was compromised somewhat by a diagnosis of Attention Deficit Hyperactivity Disorder. He left school at age fifteen but began working immediately thereafter and notes that since leaving school he is "usually employed". He describes himself as an individual who could be hired at any construction company as he is "skilled at roofing training and can read blueprints". Immediately prior to the incident before the court he was in fact not employed due to the seasonal nature of his work.

[46] Mr. Quackenbush denies any past or present substance abuse issues with respect to drugs, although it is clear from his own comments and the record that alcohol has been an issue for him. His insight into that particular issue appears to be relatively limited as he states, "I drink a little bit but I don't abuse it".

[47] In fairness to Mr. Quackenbush, he acknowledges that his drinking habits depend on the amount of income he has at any particular time. He further acknowledges that alcohol has been a factor in several of his criminal offences.

[48] With respect to the matters before the court, Mr. Quackenbush spoke to the court on sentencing. He made similar comments in court that he did when interviewed by the probation officer in preparation of the pre-sentence report. He expressed regret with respect to the events leading to the charges. He states it was "stupidity" and he "should have known better".

[49] The pre-sentence report sets out that Mr. Quackenbush did not seem to express insight into the potential harm his actions could have caused others by the sale of the weapons, but I am satisfied from his comments made in court that he does have some insight into that issue. It also appears that a factor in Mr. Quackenbush's poor decision-making is the poor choice of associates that he keeps.

[50] He has been on community supervision before and his performance has been mixed. He has failed to comply with previous court orders and due to his poor choice of negative associates and criminal lifestyle which still, according to the probation officer, remain a concern the probation officer did not feel that Mr. Quackenbush would be suitable for future community supervision. His comments to the court during the course of sentencing would indicate otherwise.

POSITION OF THE PARTIES

[51] The Crown takes the position that, given the number of aggravating factors present and the relatively few mitigating factors, an appropriate sentence totalling eight years for both accused is the appropriate disposition prior to crediting time served. The Crown suggests that the appropriate deduction for pre-trial custody is on a one-for-one basis and strenuously opposes any increased credit for pre-trial custody in the absence of evidence with respect to the pre-trial incarceration. The Crown suggests after a trial the Crown would have been seeking a sentence in the range of ten years or more.

[52] Mr. Dempster on behalf of Mr. Faria submits that the range of sentencing with regard to his client is one of five to six years. He does not press for enhanced pre-trial custody and in fact concedes that he is simply seeking a one-for-one credit for the pre-trial custody served by his client. He suggests after crediting such time served the remnant of the sentence to be served is one of four years imprisonment.

[53] Ms. Reier has, as noted, pursued the issue of the constitutionality of s. 99(2)(a) wherein a three year period of imprisonment is set out. Counsel suggests that approaching the sentencing of Mr. Quackenbush on the basis of principles of sentencing and the case law provided the range of sentence is one to three years imprisonment. Counsel suggests that after crediting time served the appropriate disposition with regard to Mr. Quackenbush is a period of imprisonment in the upper reformatory range.

PRINCIPLES TO BE APPLIED

[54] The principles of sentencing set out in the Criminal Code are set out in s. 718 to s. 718.2(1). Section 718 reads as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[55] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[56] The issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offences and the degree of culpability of the offenders and the harm occasioned by the offences. The court must consider both aggravating and mitigating factors, look at the gravity of the offences and the blameworthiness of both Mr. Faria and Mr. Quackenbush and the sentence ultimately imposed must properly reflect in terms of gravity that which the offences generally bear to other offences.

[57] Section 718.2 sets out:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[58] The primary factors to consider here are the principles of general deterrence and denunciation. Still, the court recognizes the relatively youthful age of Mr. Faria, the antecedents of Mr. Quackenbush and both of their comments to the court and appreciates that rehabilitation is still a factor to be considered with respect to both notwithstanding the submissions of the Crown.

[59] In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[60] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[61] Further:

"The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instils the basic set of communal values shared by all Canadians as expressed by the Criminal Code."

[62] Section 718.2(d) and (e) incorporate the principle of restraint and require the court not to deprive the offenders of liberty if less restrictive sanctions are appropriate. The case law clearly establishes that imprisonment is effectively the penal sanction of last resort and is to be used only where no other sanction or combination of sanctions is appropriate to the offence and to the offender. The court keeps in mind that neither Mr. Quackenbush nor Mr. Faria have previously received lengthy periods of custody save and except for the sentence of 355 days imposed on Mr. Faria. Both have been dealt with in the provincial system and the sentence here, which ultimately is a penitentiary sentence, will be the first time either individual has been in such a setting.

[63] The court also notes s. 718.2(c) which addresses the issue where consecutive sentences are to be imposed as submitted by the Crown in this particular case and the issue of totality of sentence.

[64] Further, when considering s. 718.2(b) the court has considered the various case law provided by counsel and also the fact that the "broker" of the firearms on both occasions in this matter received a period of imprisonment of three years as his sentence. It is the court's understanding that that sentence was imposed following a joint submission by the Crown and the defence with respect to that individual. The court does not have the particulars of the antecedents of Mr. Thomas but has been advised by the Crown that a major factor in that joint position was Mr. Thomas' co-operation which ultimately led to the recovery of a good number of the firearms.

PRINCIPLES EVOLVING FROM THE CASE LAW

[65] All counsel have provided books of authorities with respect to some recent and not so recent sentencing cases dealing with firearm offences. Those cases and others have been reviewed by this court. It is probably trite to say and it is evidently clear from the cases provided by both the Crown and the defence that charges such as those before the court are indeed very serious matters.

[66] The case law provided is helpful in determining the range of sentence and the application of principles of sentencing to be applied. However, the court keeps in mind that sentencing is not an exact science and trial judges must retain the flexibility to do justice in individual cases. This requires that each case ultimately must be conducted as an individual exercise taking into account the combined effects of the circumstances of the offences before this court and the unique attributes of both Mr. Faria and Mr. Quackenbush.

[67] In reviewing the case law the court keeps in mind that the charge of weapon trafficking under s. 99(1) carries a mandatory minimum sentence of three years imprisonment. This minimum period of imprisonment has been in place since May 1, 2008. Any case law provided that involves sentencing prior to that date involved a minimum period of imprisonment for a first offence of one year. Still, notwithstanding the exposure to an increased minimum period of imprisonment for such offences, the principles enunciated in all the case law provided reflect that weapons trafficking is a very serious offence. Deterrence, denunciation and protection of the public require upfront attention by the sentencing court when dealing with such offences.

[68] In Regina v. Danvers, 1999 C.C.C. (3d) 490 (ONCA), in a case involving a murder which in turned involved the use of a firearm the court stated at para. 78 as follows:

"There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed."

[69] In Regina v. Villella, [2006] O.J. No. 4690, a case pre-dating the increase in the minimum mandatory period of imprisonment, when dealing with an offender who was convicted of a number of counts relating to conspiracy to import prohibited firearms and export narcotics, the court in comments equally applicable today with respect to the distribution of firearms noted at para. 46 as follows:

"First, the importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes."

[70] Our courts then have clearly stressed that sentences imposed for firearm offences must further the sentencing goals of denunciation, deterrence and protection of the public. (See Regina v. Brown, [2010] ONCA 745 at para. 14). Firearms are inherently dangerous as noted by the Supreme Court of Canada in Regina v. Felawka, [1993] 4 S.C.R. 199 at para. 21, where Mr. Justice Cory stated as follows:

"A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. ... A firearm is quite different from an object such as a carving knife or an ice pick which will normally be used for legitimate purposes. A firearm, however, is always a weapon. No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence."

[71] Parliament itself has recognized the serious nature of such crimes by requiring even on a first offence that a mandatory minimum period of incarceration be imposed and a maximum term not exceeding ten years also be in place. Further, a charge under s. 98 with respect to break and enter into a residence, such as here, with the theft of firearms involves an offence punishable by a period of imprisonment for life.

[72] Other cases referred to by both the Crown and the defence as well as some reviewed by the court vary in the nature of the charges before the court as well as the circumstances of the offences and the offenders. Still, it is patently and obviously apparent in dealing with offences involving firearms that the court must consider primarily goals of denunciation, deterrence and protection of the public. (See Regina v. Villella, [2006] O.J. No. 4690, Regina v. Baltoni, [2004] O.J. No. 5311, Regina v. Noorali, [2012] O.J. No. 2797, R. v. Dene, [2010] O.J. No. 5192, Regina v. Ross, [2012] B.C.J. No. 1394, Regina v. Lambert, [2011] O.J. No. 3389, Regina v. Hamilton, [2011] O.J. No. 5466, Regina v. Radjenovic, [2011] B.C.J. No. 2654, Regina v. Whyte, [2012] O.J. No. 98, Regina v. Lawson, 2012 ONSC 1305, [2012] O.J. No. 2211, Regina v. Lewis, [2012] ONCJ 413, Regina v. Nur, [2011] ONSC 4874, Regina v. Smickle, [2012] ONSC 602, Regina v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 and Regina v. Big M. Drug Mart, [1985] 1 S.C.R. 295).

[73] Dealing with the constitutionality issue raised by counsel for Mr. Quackenbush, this court is aware that that particular issue is currently before the Court of Appeal for determination. The cases being heard by the Court of Appeal include Regina v. Smickle and others dealing with the mandatory minimum period of imprisonment with respect to such offences. The court is also aware of Regina v. Lewis, [2012] ONCJ 413, where the court found that s. 99(2)(a) of the Criminal Code setting out the minimum period of imprisonment for a first offence was invalid and of no force and effect as it comprised cruel and unusual punishment prohibited by s. 12 of the Charter and could not be justified under s. 1. The court has also considered Regina v. Nur, supra, which dealt with the constitutionality of s. 95(2) and notes Justice Code's comments at para. 4 where the court stated that if the fit and appropriate sentence for the offence is a sentence of three years or more then an application such as that before this court is only of academic interest and it should be "summarily dismissed".

[74] That, in fact, is the case here. Given the many aggravating factors which the court will enumerate and while still taking into account the mitigating factors, it is more than evident that the sentence imposed for Mr. Quackenbush should exceed the three year mandatory minimum sentence when one considers those factors as well as the principles to be applied. As a result, there is no need to consider the constitutionality argument in this particular case.

[75] Ultimately, the court finds that the range of sentence suggested by counsel for Mr. Quackenbush is inappropriate. This was not an "ill-advised sales pitch" as in Regina v. Lewis nor simply a situation where Mr. Quackenbush was guilty of "colossally bad judgment" as found in Regina v. Smickle. To put it succinctly, even if the mandatory minimum period of imprisonment subscribed within s. 99 does not survive constitutional scrutiny and the range of sentence is effectively open without any minimum period of imprisonment to consider, the sentence involving Mr. Quackenbush would exceed, in this court's view, three years imprisonment in any event.

AGGRAVATING FACTORS

[76] The aggravating factors in this case are:

(1) Both Mr. Faria and Mr. Quackenbush do not come before the court as first-time offenders. Both have rather extensive records. Mr. Quackenbush's record dates back some twenty years and he was, as recently as late 2011, before the court on charges for which he was placed on probation. He was on probation at the time of the offences before the court.

Mr. Faria, although much younger than Mr. Quackenbush, has also acquired a significant criminal record which includes similar types of charges as those before the court, both as a youth and as an adult. He, too, was on probation at the time after serving a rather lengthy period of imprisonment relatively recent to the events in February of 2012.

(2) The actions of both accused were not impulsive, nor done on the spur of the moment. The break and enter was planned, deliberate and targeted the victim's home for the specific purpose of stealing the firearms. Mr. Faria had determined the daughter would not be at the residence and entry by the two accused together with Ms. Stanford appears to have been well orchestrated and the removal of the firearms carried out in a relatively efficient manner. On the initial occasion when Mr. Faria had entered the residence, presumably again using the key that had been given to him when he was a resident at the home, he also had a specific purpose in mind, i.e. the removal of three firearms and the ammunition at that time. Mr. Faria took advantage of Ms. Owens as well as her father's generosity in providing him with a place to stay for a short period of time. During that period of time he obviously had occasion to view the firearms, obtained a key and when he left he retained the key and entered the residence. His actions were in fact akin to a breach of trust with respect to the entry into the Owens' home.

(3) Perhaps the most significant aggravating feature of the conduct of both accused is the fact that they made contact with a broker who they knew was associated with a criminal organization and trafficked the various firearms to that organization. Hell's Angels is a recognized criminal organization. Either the accused did not care or did not consider that selling the firearms to that organization showed a complete and utter disregard as to how those firearms were likely to be, and potentially could be, used to victimize others by way of threat, injury or worse. The accused apparently gave it no thought and were only concerned about profit, whether it be in the form of money or drugs. On the second occasion it turned out the compensation received for the firearms was in the form of drugs in significant quantities, which would certainly indicate, at least with respect to Mr. Faria (and Mr. Faria agrees), were to be trafficked as well as used for personal consumption.

The accused simply had to know there was a potential for the deadly use of the firearms they were trafficking in given the nature of the purchaser. These firearms were not destined to end up in a trophy room or on a recreation room wall. They were undoubtedly to be used to either further or perpetrate criminal activity. The trafficking of firearms is a serious matter at any time, but in this case the court finds it is particularly concerning.

(4) Although the majority of the weapons have been recovered, that is only the result of the co-operation of the broker who has already been dealt with and the good work of the Waterloo Regional Police Services. Those weapons have been effectively removed from the street, but of concern is the fact that there still remains outstanding, as I understand the Agreed Statement of Facts and the submissions of counsel, two firearms which have not been recovered. They apparently have been sold to what is described as an "unnamed person in Kitchener". No information has been forthcoming from either accused as to that individual. I will assume they do not know who the purchaser is but those firearms remain out there and the potential for harm continues to exist.

(5) The evidence on the sentencing hearing indicates that the number of firearms involved in this particular matter exceed by far the seizure of firearms at any time in the past by the Waterloo Regional Police Service. The concerns of the police as well as the community with respect to public safety are very, very obvious. Sergeant Harrington's evidence clearly indicates that violent crime within this community has involved the use of firearms and on occasion that use has had disastrous results for the victims. The impact of the offences on the community is and should have been readily apparent to both accused. The trafficking of firearms itself is serious enough but it becomes even more so when one considers that a large amount of ammunition for those weapons was also trafficked. The concern of the community with the risk of violence and harm present, which risk continues to be in place given the outstanding firearms that have not been recovered, requires the court to impose a sentence to deter others from taking part in such activity and to strongly denounce such conduct.

MITIGATING FACTORS

[77] The mitigating factors in this matter are as follows:

(1) Both accused have entered pleas of guilty to the charges before the court. They have accepted responsibility and eliminated the necessity for a preliminary hearing and/or a trial. Not only do their pleas demonstrate their remorse, I am satisfied from the comments they have made to the court either directly or in the context of the pre-sentence reports that they are in fact remorseful. I accept that remorse as genuine and sincere.

(2) Mr. Faria is a relatively young offender who has accumulated a substantial record for many offences including similar offences to those before the court with respect to break and enter. Mr. Quackenbush is older and should certainly have been wiser but the ability to reflect on one's conduct as one gets older was absent in this particular case with respect to Mr. Quackenbush. Still, both have been very candid with the probation officer preparing the pre-sentence reports. Both have acknowledged substance abuse and alcohol issues that have certainly been factors not only in the commission of the offences before the court but also in the accumulation of their records. They are not lost causes for rehabilitation as both have some insight, perhaps limited, with respect to the impact their substance abuse issues have had on their lives to date. Both seem ready to finally address those issues in a reasonable fashion, hopefully with some success. Rehabilitation then is still a factor to be considered with respect to both accused.

(3) Both accused have supports within the community, including family members. Both accused have children. I note Mr. Faria eluded the police for a short period of time in order that he could see his child on one last occasion before stepping into custody. I also note Mr. Quackenbush has children and although clearly the presence of the children in the home at the time of the storage of the firearms and the criminal conduct taking place is a concern, all reports seem to indicate that Mr. Quackenbush is otherwise a good father. Upon their release from custody they will hopefully have that continuing support and feel some obligation to be better role models for their children.

(4) Both accused have been in custody for in excess of a year. Mr. Quackenbush was arrested on February 18, 2012 and has been in custody since that time. Mr. Faria was arrested the following day and has been in custody since then. They are to receive credit for the time served. The court is prepared to give each accused credit for thirteen months pre-trial custody which has been rounded up somewhat to reflect the fact that the sentencing was adjourned to allow the court to consider the submissions of counsel.

SENTENCE TO BE IMPOSED

[78] This is a troublesome sentencing. Although both the accused have records and Mr. Faria's record is related somewhat to the break and enter, they have never been involved in criminal conduct that has come to the attention of the court such as that in place here. The court has considered the aggravating and mitigating factors as well as the principles of sentencing to be applied and has noted the range of sentencing as set out in the various case law provided. The court has also considered the issue of concurrent and consecutive sentences with respect to the two counts to which the accused have pled. Offences that are separate and distinct should attract a separate sentence and subject to the principle of totality should be served consecutively. In determining whether the court should impose concurrent or consecutive sentences, here the court considers among other things the nature and quality of the acts, the temporal and special dimensions of the offences, the nature of the harm caused to the community or to the victims, the manner in which the criminal acts were perpetrated and the offenders' roles in the crimes. (See Regina v. Potts, [2011] BCA 9 at para. 89).

[79] In looking at those issues I find that the submissions of the Crown for consecutive sentences are valid. The break and enter into a residence has different considerations from the count of trafficking in weapons. In Regina v. Radjenovic, supra, the court considered this very issue. The court appreciates that it might reasonably be argued the break and enter was done specifically for the purpose of obtaining the firearms and then trafficking in them and represents a single endeavour. However, in Regina v. Radjenovic, when considering the trafficking of firearms and other offences, the court noted at para. 73 as follows:

"I must also take into account the different nature of the harm which the offences address. The Counselling Offences are directed at preventing harm to individual members of the community. They are offences with specifically targeted victims who are entitled to protection. The nature of the harm that is targeted by the Trafficking Offences is broader. The Criminal Code provisions relating to firearms offences serve the goal of protecting the public generally. The recent increase in the minimum sentence for trafficking in firearms from one year to three years is a reflection on both the societal interest in limiting illegal gun transfers and the nature of the harm with which these offences are concerned. These are separate interests which suggest that the offences should be considered separate and distinct for sentencing purposes."

[80] Concluding then that the sentences should be served consecutively, the issue of totality also must be considered to ensure where consecutive sentences for multiple offences are imposed, the cumulative sentence does not exceed the overall culpability of the offenders. Where, as here, the court has determined that consecutive sentences are appropriate, the court must look at what is a fit sentence for each offence, total that sentence, give that total sentence a "last look" in accordance with the totality principle and determine whether the sentence is just and appropriate. The court is aware that the total sentence should not be above the normal level of a sentence for the most serious of the individual offences involved or if its effect is to impose on the offender a crushing sentence not in keeping with his record and prospects. (See Ruby On Sentencing).

[81] After considering all of the above the court is satisfied that the appropriate sentence on the two charges with which the accused are jointly charged is a sentence of six years imprisonment. From that sentence is to be deducted the time served in pre-trial custody and that time should be credited on a one-for-one basis.

[82] With respect to Mr. Faria then, the pre-trial custody of thirteen months should be noted on the information. Prior to crediting pre-trial custody I am satisfied that the appropriate sentence on Count #1 is two years imprisonment and on the count of trafficking in the firearms, a consecutive sentence of four years. After deducting pre-trial custody of thirteen months a remnant remains of 59 months. In addition, there will be a consecutive one month sentence for the breach of probation charge to which Mr. Faria has pled guilty, leaving his total sentence at five years imprisonment.

[83] With respect to Mr. Quackenbush, he too has been in custody for thirteen months and will be credited with that on the information. The court's view is that the appropriate sentence is also two years on the break and enter count and a consecutive four year sentence on the second count. After crediting pre-trial custody of thirteen months Mr. Quackenbush then has a remaining period of imprisonment of 59 months imprisonment to serve.

[84] In addition to the period of imprisonment, there will be orders for samples of both accused's DNA to be taken in accordance with the provisions of the Criminal Code. As well, there will be s. 109 orders for both accused under (2)(a) for ten years and under (2)(b) for life. The victim fine surcharge is to be waived on both counts. All remaining charges are to be marked withdrawn at the request of the Crown.

Released: March 11, 2013

Signed: "Justice G. F. Hearn"