COURT FILE No.: TORONTO

DATE: May 15, 2013

Citation: R. v. Horsley, 2013 ONCJ 310

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JASON HORSLEY

Before Justice Feroza Bhabha

Heard on April 4, 2013

Reasons for Sentence on May 15, 2013

Elizabeth Nadeau ...................................................................................................... for the Crown

Peter Lam ........................................................................................... for the accused Jason Horsley

BHABHA, J.:

Overview of the charges and the circumstances of the offences

[1] On April 4, 2013 Jason Horsley (“Horsley”) pleaded guilty to nine weapons-related offences. Mr. Horsley was initially jointly charged with his girlfriend Esther Moriarty (“Moriarty”) however on the same date the crown withdrew the charges against Moriarty after she entered into a peace bond.

[2] The offences arise in the context of a search warrant. On Sunday October the 14th 2012 members of the guns and gangs task force were conducting surveillance in the area of 3020 Dundas Street West unit #2 in anticipation of executing a search warrant at this address which was where the defendant resided with Ms. Moriarty.

[3] During surveillance Mr. Horsley was observed exiting the residence and leaving the area on foot. He was followed and later stopped and arrested on charges of possession of marijuana. The crown has chosen not to proceed on those charges given the relatively small quantity of marijuana involved.

[4] Later the same evening the police did in fact execute a search warrant at Horsley and Moriarty’s residence. Moriarty was present when the police arrived.

[5] During the course of the search a 9mm Luger semi-automatic handgun was located on a lower open shelf of a coffee table in the living room. It was wrapped in a cloth bag. As well, a single shot .22 calibre firearm referred to as a “zip gun” was located in a bag in the closet of the only bedroom in the apartment. Along with the “zip gun” was a quantity of ammunition: two rounds of 9mm ammunition which are capable of being fired from the gun found in the living room; 15 rounds of .22 calibre ammunition capable of being fired from the single shot “zip gun”; as well as other ammunition suitable for 38 calibre handgun. Finally, police also located a 300 K volt Taser in a kitchen drawer of the residence. At that time the Taser was neither charged nor functional however it was agreed for purposes of these proceedings that the Taser was a restricted weapon.

[6] At the time of the execution of the search warrant Horsley was subject to three separate lifetime prohibition orders made under section 109 of the Criminal Code prohibiting him from possessing any firearms, restricted devices, ammunition, etc.

[7] Also seized from Horsley and Moriarty’s residence were numerous photographs depicting Horsley and in some instances Horsley and Moriarty where Horsley is posing with what appear to be different firearms.

[8] The majority of the photographs were taken indoors while others were taken outdoors. Horsley poses alone in some of photographs and in others he is either with Ms. Moriarty or group of unknown men. In at least two of the two photographs he poses with a gun and a cat.

[9] The crown conceded that there was no way to be sure that the guns depicted in the photographs were in fact firearms and not replicas. It is safe to say that what appear to be firearms depicted in the photographs are not the Luger or “zip gun” seized when the police executed the search warrant. These personal photographs along with the photographs of the seized Luger, the zip gun, Taser, ammunition and related items were filed collectively as xhibit 6.

The Nature of the Weapons

[10] By agreement of the parties the anticipated evidence and credentials of Michael Press, a senior firearms officer with the Toronto Police Service, were filed as exhibits 1(a) and 1(b), respectively.

The senior firearms officer reviewed the seized weapons and determined that there were two operational firearms seized in the investigation namely: the Ceska Zbrojovka model CZ58 9mm Luger semi-automatic handgun. Of note is that the serial number on this firearm has been removed at three locations on the firearm.

[11] The second operational firearm was the “zip gun”. This is a slang term for a modified or improvised firearm. These weapons are extremely crude firearms in terms of their design, materials and method of assembly. The “zip gun” in this case had been modified to single shot .22 calibre design. It was modified from the Squires Bingham 16, a rifle which normally operates as a semi-automatic firearm.

[12] Apart from the two operational firearms noted, the search also yielded a Taser gun located in a kitchen drawer which was not fully functional. As well, the police found nine types of ammunition two of which were suitable for the two firearms already described. Finally, various firearm parts including a detachable partially loaded box cartridge magazine, springs, cleaning rods were also found at Horsley and Moriarty’s apartment. The charges:

[13] Mr. Horsley has pleaded guilty to 6 counts relating to his possession of the 9mm semi-automatic Luger gun, of which 3 counts relate to each of the lifetime prohibition orders he was subject to at the relevant time. He also pleaded guilty to 2 counts relating to his possession of the zip gun, and lastly 1 count relating to the Taser.

[14] Dealing firstly with counts 1-2 and 7 – which refer to the semi-automatic Luger:

C 1 – is a charge of possession of restricted firearm with readily available ammunition;

C 2 – is a charge of possession of a firearm knowing that neither the defendant nor Moriarty had a licence or registration certificate for the Luger firearm;

C 7 - is a charge of possession of firearm knowing that it was obtained by the commission in Canada of an offence;

C 8 - is a charge of unlawful possession of a prohibited firearm with readily available ammunition;

C 10 - is a charge of possession knowing that neither the defendant nor Moriarty had a licence for the “zip gun” firearm;

C 13- is a charge of possession of a prohibited weapon namely the conducted energy weapon also known as a Taser;

C 14 - is a charge of possession of the Luger while subject to a lifetime prohibition order made under section 109 of the Criminal Code on April 7, 1995 for a conviction of using a firearm during the commission of indictable offence;

C 15 - is also a charge of possession of the Luger while subject to a lifetime prohibition order made under section 109 of the Criminal Code but in relation to a different order made on April 17, 2007 for a conviction of assault with a weapon;

C 16 – is also a charge of possession of the Luger while subject to a lifetime prohibition order made under section 109 of the criminal code but in relation to a different order made on September 15th 2000 for a conviction of assault with a weapon;

Position of the Parties

Crown’s position

[15] Ms. Nadeau for the crown submits that a sentence in the range of 6 to 8 years is the appropriate range of sentence for someone in Mr. Horsley’s situation. She concedes that the upper end of the range is more appropriate had the matter proceeded to trial. In her submission a sentence in the range of 4 to 5 years is beneath the acceptable range of available sentences in the particular circumstances of this offender and these offences. While acknowledging his guilty pleas and the gap in his record from 2007 until the commission of these offences, she placed particular emphasis on Mr. Horsley’s apparent obsession with weapons and what she referred to as his “flippant” attitude towards guns in general and court orders in particular.

[16] Ms. Nadeau suggested that the court impose a term of imprisonment five years concurrent for each of the weapons related offences, with one year consecutive for the first breach of the prohibition orders, with the second and third breaches concurrent to the first for a total of six years. Finally, it was her submission that Mr. Horsley’s circumstances did not merit or warrant enhanced credit for the approximately 7 months of pre-trial custody. On a one-for-one basis the total sentence on this calculation would be five years and five months (6 years less 7 months pre-trial custody).

Defence Position

[17] Mr. Lam for the defendant submitted that a global sentence of five years is appropriate in all the circumstances given the defendant’s early guilty pleas, his troubled youth, the gap in his record, his positive work history, and the supports he has in the community. In his submission the weapons related offences should attract concurrent sentences of four years with one year consecutive for the breach of the prohibition orders. Mr. Lam submitted that pursuant to the recent Court of Appeal decision in R. v. Summers 2013 ONCA 147, [2013] O.J. No. 1068, the court should grant enhanced credit for the 7 months of pre-trial custody on a 1 – 1.5x basis. The ten months would thereby reduce the total sentence to approximately 4 years and two months.

Circumstances of the Defendant

[18] Mr. Horsley is 37 years old. He has a prior record that includes convictions for several weapons related offences, but only one prior conviction for using a firearm during the commission of indictable offence.

[19] His first criminal conviction was at age 19 in 1993 for carrying a concealed weapon. He received a 12 month probationary period. That same year he was convicted of possessing a narcotic and received a fine.

[20] In 1994 he was convicted of two counts of break and enter and one count of assault and received nine months in custody on each charge concurrent and 30 days concurrent on the assault.

[21] In 1995 he was convicted of one count of assault with a weapon, one count of using a firearm during the commission of indictable offence and one count of theft under. On the first two counts he received one year on each charge consecutive and consecutive to the sentence he was serving. On the theft he received six months concurrent probation for one year. On this occasion he received his first lifetime prohibition from possessing firearms, ammunition etc. under section 109 of the Criminal Code.

[22] There is a gap in his record from 1995 to 2000 when he was convicted of one count of assault with a weapon. Horsley received a 21 month conditional sentence, probation for three years and his second mandatory lifetime prohibition under section 109.

[23] From 2000 to 2007 there is a further gap in his record. In 2007 Mr. Horsley was convicted again of one count of assault with a weapon. He received two years’ probation and his third mandatory prohibition order under section 109.

[24] There are no entries in his record from 2007 until his guilty plea this year to the nine counts already noted. That said it came to light during the preparation of the presentence report that the defendant was subject to a peace bond at the time of these offences. He entered into the bond on February 13, 2012 which was to run until February 12, 2013.

[25] In addition to letters of support from his common-law partner, his mother and a friend, the court also had the benefit of a presentence report that provides some useful background of the defendant’s past and current circumstances.

[26] The defendant is the only child of his biological parents. His father had minimal involvement in his life and is now deceased. He had a difficult and troubled childhood that culminated in his placement in the care of the CAS and he eventually became a ward of the province. He has a youth record and served both open and closed custody as a young offender. By his own account he was a troubled and aggressive child.

[27] He was resentful of his mother because of her failure to protect him from abuse by her common-law partners who were physically emotionally abusive with him. His relationship with his mother has since improved and she is now supportive of him. She wrote a letter to the court to that effect.

[28] Horsley is currently involved in a relationship with Esther Moriarty whom he met in his mid-20’s. They have been in a common-law relationship for approximately 10 years. They have no children. In a letter written for these proceedings. Ms. Moriarty reports that she and the defendant plan to have a future together when he is released from prison.

[29] The defendant has not completed high school although he has been assessed and determined to have superior intelligence. His work experience includes working in a warehouse, plumbing and in construction. The last 18 years he has worked as a tattoo artist. However, the job is seasonal and his income from this source fluctuates considerably.

[30] He denies any addiction to elicit drugs and alcohol.

[31] Some of the defendant’s friends reported they were shocked to hear about his involvement with firearms. Ms. Moriarty also claims not to have had any knowledge of the existence of firearms in her residence notwithstanding that one of the firearms was found in a coffee table and the Tazer in a kitchen drawer. As noted by the writer of the presentence report who received information from the officer in charge of the investigation, it is difficult to give credence to this assertion given that she was photographed with the defendant posing with a gun. She appears to have been less than forthcoming with the writer of the report regarding the firearms found in their residence. This is of concern to the court if she is part of his rehabilitation plan.

[32] In summary, while the presentence report is helpful to the court in understanding the defendant’s background and circumstances it reveals a reluctance on the part of the defendant and his common-law partner to be open and forthright with the writer of the report about the circumstances that led to his involvement in the offences before the court. It is therefore difficult to assess the defendant’s insight into the circumstances that led him to reoffend and to commit such serious offences.

Issue

[33] The question for me to determine is: what is a fit and just sentence in all the circumstances of the offences to which the defendant has pleaded guilty and having regard to his personal circumstances?

Principles of Sentence

[34] One of the fundamental purposes of sentencing is to impose a sentence that contributes to the respect for the law and maintaining the safety of society. To state the obvious, in the circumstances of this case, the safety of the community is a particularly important consideration I cannot lose sight of.

[35] The sentencing process is guided and governed by the Criminal Code requires that a certain number of objectives be met namely:

1. the denunciation of unlawful conduct;

2. the deterrence of the offender and others who are like-minded from committing similar and further offences;

3. the separation of offenders from society where necessary;

4. the rehabilitation of the offender;

5. the reparation for harm to victims or to the community; and

6. the promotion of a sense of responsibility of. the offender and acknowledgment of the harm done to victims or the community.

[36] It is a fundamental principle of sentencing that the sentence imposed must be proportionate to the seriousness of the offences and the degree of responsibility of the offender. In the circumstances of this case the seriousness of the offences is reflected in the mandatory minimums that Parliament has mandated: 3 years for a first offence and 5 years for a second offence. The Crown did not seek to have Horsley treated as a second time offender because of the gap between his first firearms related conviction and these offences.

[37] The degree of the defendant’s responsibility is high given that the firearms, Taser, ammunition and gun parts were found within his residence while he was subject to three separate lifetime prohibition orders.

[38] As noted in the case law, gun violence continues to plague our city notwithstanding the serious penalties imposed by Parliament. Gun violence continues to be a serious and ongoing concern.

[39] In the particular circumstance of this offence the paramount sentencing objectives must be denunciation and deterrence both specific and general. Rehabilitation while still a factor has to recede somewhat given the length of the defendant’s record and to some extent his age. He is no longer a youthful offender.

[40] In determining the appropriate sentence imposed on the defendant I have reviewed the case law provided to me by counsel which include the following cases:

• R. v. Fletcher, [2008] O.J. No. 697 (Ont. S.C.J.) – 6.5 yr. sentence imposed;

• R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707 (O.C.A.) – 5.5 yr sentence increased on appeal to 8 yrs.;

• R. v. Harutyunyan, 2012 ONSC 58, [2012] O.J. No. 177 – 4 yr. Sentence imposed;

• R. v. Chambers 2012 ONSC 817, [2012] O.J. No. 462 (Ont. S.C.J.) – 8 yr. Sentence imposed;

• R. v. Andall [2011] O.J. 3523 – 6 yr. global sentence imposed; R. v. I.S. 2011 ONSC 3303, [2011] O.J. 3052 (S.C.J.) – 7 yr. sentence imposed;

• R. v. Dehaney 2012 ONSC 3014, [2012] O.J. 2597 (S.C.J.) – 7 yr. sentence imposed;

• R. v. Dene [2010] O.J. 5192 (S.C.J.) – 5.5 yr. sentence imposed;

• R. v. Ferrigon 2007 16828 (ON SC), [2007] O.J. 1883 (S.C.J.) – 6.5 yr. sentence imposed;

• R. v. Fletcher [2008] O.J. 697 (S.C.J.) – 6.5 yr sentence imposed;

• R. v. J.G. [2005] O.J. 4599 (S.C.J.) – 6 yr sentence imposed;

• R. v. Manning [2007] O.J. 1205 (S.C.J.) – 6 yr. sentence imposed;

• R. v. Nur 2011 ONSC 4874, [2011] O.J. 3878 (S.C.J.) – 6 yr. sentence imposed;

• R. v. Iyeke [2009] O.J. 1348 (S.C.J.) – 5.5 yr. sentence imposed;

• R. v. Smith [2008] O.J. 2472 (O.C.A) – 5 yr. sentence upheld.

[41] Sentencing however is not a precise science. As no two offenders are alike, it is of necessity a process that turns on the facts and circumstances specific to the case at hand. The case law is useful in providing guidance and is capable of supporting a particular range of sentence.

Mitigating and aggravating factors

[42] Horsley’s guilty plea is the most significant mitigating factor. He also appears to have a good work ethic. He has the support of his mother and his common law spouse and friends.

[43] The aggravating factors are the following:

a) his related criminal record although this is tempered somewhat by the long gaps in that record;

b) the fact that in addition to the two operational firearms, the Taser and related ammunition, he was also in possession of gun parts and gun cleaning paraphernalia;

c) the cavalier and almost childlike fascination with guns apparent in his personal photo collections; and

d) the fact that he was subject to multiple prohibition orders at the time of these offences.

Pre-sentence custody

[44] Mr. Horsley consented to his detention. As of today, he has been in custody for 214 days.

[45] Mr. Lam, counsel for Horsley submits that his client should be entitled to enhanced credit on a 1 x 1.5 times basis in accordance with the reasoning set out by the Court of Appeal in the recent decision of R. v. Summers. No evidence was adduced nor were any submissions made regarding loss of remission or the conditions of incarceration.

[46] The crown submits that there are no exceptional circumstances that would justify or merit enhanced credit and that the court should decline to grant such credit in calculating the appropriate sentence to be imposed. Exceptional circumstances are not required.

[47] R. v. Summers is a binding decision on this court and while it requires there to be some evidence of the circumstances of the defendant’s detention or loss of remission that would justify enhanced credit, the threshold is a low one. There must however be some evidence before the sentencing Judge before she can exercise discretion in deciding whether to grant enhanced credit for pre-trial custody.

[48] Mr. Horsley consented to his detention therefore there are no statutory bars to him receiving enhanced credit. That said, it would be akin to not recognizing the elephant in the room to ignore the fact that he likely was a poor candidate for judicial interim release given the serious nature of the offences with which he was charged and the three prior prohibition orders he breached. For the same reasons, it is unlikely that he will be a good candidate for early parole..

Disposition

[49] Having considered the relevant sentencing principles, in particular, the need for a strong denunciatory sentence and one that serves to deter not only Horsley but any like-minded persons, I sentence Mr. Horsley to a global sentence of 5.5 years.

[50] In my view four and one half years concurrent in respect of counts 1, 2, 7, 8, 10 and 13 is appropriate given his guilty pleas, the fact that neither one of the two guns were loaded, and that the Taser was not charged. Although ammunition was readily available, the weapons were not found in a public place where they could have posed a greater danger to public safety. This is the distinguishing factor from many if not all of the cases that were provided to the court by the crown in support of a six-year sentence.

[51] Although it is a seriously aggravating factor that the defendant was a breach of not one, not two, but three separate lifetime prohibition orders I also considered the two lengthy gaps in his record, in particular the most recent five-year gap between 2007 and these offences in 2012. Unlike many of the defendants in cases referred to me in submissions by the crown, Horsley has only one prior firearms related offence that dates back to 1995. This is not a situation where he is subject to a mandatory minimum of five years in respect of the s. 95 and s. 96 offences for the reasons already noted.

[52] Under s. 117.01 of the Code the maximum sentence for breaching a prohibition order is ten years imprisonment. The Crown suggested that the usual range of sentence is 6 months to eighteen months. Both counsel recommended a 1 year sentence consecutive to the five years for the possession related offences. In my view a consecutive sentence of 1 year is appropriate The breakdown of sentence is therefore as follows:

c. 1, four and one half years

c. 2, four and one half years, concurrent;

c. 7, four and one half years, concurrent;

c. 8, four and one half years concurrent;

c. 10, four and one half years concurrent;

c. 13, four and one half years concurrent;

c. 14, one year, consecutive

c. 15, one year concurrent,

c. 16, one year concurrent.

[53] There will be 214 days of pre-trial custody notes on the Information. Applying the 7 months against the 5.5 yrs. (1950 days or 65 months) leaves a sentence of 1,734 days or 4 years and 10 months.

Ancillary Orders

[54] DNA

1. These are secondary designated offences given the related record and the nature of these offences it is appropriate that such be made. Pursuant to s. 487.04 there will be an order that the defendant provide a sample of his DNA to be kept on a data bank for life. He may have already previously provided a sample on an earlier occasion. If he has done so, a further sample will not be collected.

Firearms & Weapons Prohibition

2. Pursuant to s. 109 there will be an order for life prohibiting the defendant from possessing any firearms, restricted devices, prohibited devices, ammunition, prohibited ammunition, explosive devices, & cross bows;

Forfeiture Order

3. Pursuant to s. 491 there will be an order for Forfeiture in relation to the firearms, firearms parts, the Taser and all the ammunition seized pursuant to the search warrant. This Order is mandatory.

Released: May 15, 2013

Signed: “Justice F. Bhabha”