Court File and Parties

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Roman Paryniuk

Before: Justice P. Harris

Sentencing Judgment Released: August 8th, 2013

Counsel:

• A. Nisker for the Public Prosecution Services of Canada
• M. Newhouse for the Office of the Crown Attorney
• P. A. Schreck for the Defendant Roman Paryniuk

Harris, P. J.

Introduction

[1] Roman Paryniuk was found guilty of a number of drug, firearm and property offences, and in the course of the sentence hearing, Crown counsel stipulated that the most serious offences for sentencing purposes are - production of marihuana and possession of a loaded prohibited firearm - and accordingly, all additional charges will be dealt with as part of a global sentence outcome. The aforementioned offences arose in the context of a marihuana production operation, commonly known as a "grow op" which was discovered following the execution of a search warrant at 33 Lynngrove Avenue, Toronto, on September 19, 2011.

[2] Mr. Paryniuk resided at the above-named property at the time of the search. During the entry pursuant to the warrant issued, police found a number of marijuana plants growing in the basement and in other parts of the house they found dried marijuana, cash, a quantity of psilocybin, a number of credit cards and identification in different names, a loaded handgun and some ammunition. In December, 2012, I ruled that the defendant's rights under s. 8 of the Charter had not been infringed.

Facts

[3] The investigation began with an observation of an individual in the Lynngrove Avenue neighbourhood who was a principal in a hydroponic equipment business. His presence led to suspicions he was supplying a home in the area and as a result of some unusual features of the home at 33 Lynngrove Avenue, a hydro usage report was requested that disclosed the telltale pattern of a "grow operation." On the basis of the hydro data and other factors, a search warrant was authorized and on September 19, 2011, an extensive marihuana production system was found on the premises.

[4] The following was located during the search of the premises:

(a) a three-stage hydroponic marihuana production system in the basement consisting of 66 plants and 93 clones in 4 separate rooms (in addition to 12 ballasts, 1 shredder and eighteen 600 watt light bulbs);

(b) a fully loaded .32 calibre semi-automatic handgun in the bedroom under some clothing - with one round of ammunition in the chamber;

(c) 111 rounds of .32 calibre ammunition in an office under the desk - 105 rounds in 3 boxes and 6 loose rounds;

(d) 9.13 kg. of dried marihuana in various rooms of the house and 6.49 g. of hashish (cannabis resin) in the office filing cabinet;

Position of the Crown

[5] The Crown seeks a sentence of six years. The Crown argues that the principles of deterrence, both specific and general, and denunciation are paramount. The Crown points to the well-planned sophistication of the grow operation, its potentially lucrative yields and the volatile and "toxic" combination of a drug production system and a loaded handgun in a residential neighbourhood. The position taken is that the safety and the protection of the public in residential neighbourhoods calls for an exemplary sentence on the basis of several "aggravating factors."

[6] Crown counsel submits that the following aggravating factors should result in a relatively severe sentence:

(a) This was a well-planned, lucrative criminal enterprise with retrofitted ductwork, climate controls, growing tanks, drying racks, clones, plants, fertilizer, lights, ballasts, shredder, scales and a total of 66 plants and 93 clones in four separate rooms along with almost 10 kgs. of saleable dried marihuana product;

(b) The loaded .32 calibre handgun was clearly employed as a "tool of the drug trade" and stored carelessly under clothing in the bedroom; there were three boxes of ammunition, stored unsafely, in a different room; the combination of drugs and weapons is an aggravating factor on sentence;

Position of the Defence

[7] The defence suggests a sentence of 6 years is excessive and that a sentence in the range of three years would be appropriate on the basis of the totality and restraint principles, the facts of the case and the defendant's antecedents.

[8] In support of that position, defence counsel refers to the following mitigating factors:

(a) The fact the defendant is 50 years of age, a first offender with no criminal record, with a background of several years in university, and employment in the construction, boating and courier industries;

(b) The fact there was no public cost as a result of stolen power through the use of a hydro bypass;

(c) The fact that there was no evidence the defendant possessed the handgun for offensive purposes: the facts are consistent with its possession for protection only;

(d) The fact that the defendant cooperated with the police during their investigation of his residence and made several substantive concessions prior to trial that had the effect of saving considerable court time by limiting the trial to the constitutionality of the search;

(e) Even though the search and seizure was ultimately found to be constitutionally justified, there was a legitimate basis upon which to challenge the search warrant given the questionable conduct of the Affiant of the Information to Obtain, as determined by this court in its previous ruling;

(f) The defendant was incarcerated for 37 days in pre-trial custody;

Issues for Discussion

[9] In passing sentence, the Court must first determine the following questions:

(a) In light of the decision in R. v. Smickle 2012 ONSC 602, declaring the 3 year mandatory minimum sentence for possession of a loaded firearm in section 95(2)(a)(i) of the Code to be unconstitutional and of no force and effect, is the minimum three year sentence still applicable?

(b) Is the combination of drug production and a firearm an aggravating factor on sentence?

(c) Bearing in mind the principles of totality and restraint, should the sentence to be imposed be served concurrently or consecutively?

Analysis

(i) Is the statutory minimum sentence still in effect?

[10] It is common ground that the Crown has not applied for an order suspending the effect of the decision in Smickle, which concluded that s. 95(2)(a)(i) of the Criminal Code is inconsistent with the Charter of Rights and Freedoms and of no force or effect.

[11] In Smickle, Malloy J. held that the s. 95(2)(a)(i) provision cannot be saved under s. 1 and imposed a s. 52 remedy under the Charter: "The plain language of s. 52 means that the legislative provisions inconsistent with the Charter are of no force or effect to the extent of the inconsistency. In my opinion, I am bound by Ferguson. The proper remedy is a declaration of invalidity. Accordingly, a declaration shall issue that the reference to 'a minimum sentence of imprisonment of, in the case of a first offence, three years' as set out in s. 95(2)(a) of the Criminal Code is of no force or effect."

[12] The Supreme Court in R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6 has conclusively determined that when a court rules that a statutory provision is unconstitutional and of no force and effect under s. 52 of the Charter, the effect of such a determination is that the provision in question is "removed from the statute books":

[65] The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case‑by‑case remedies: see Osborne, per Wilson J. In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible — as in the case of an unconstitutional mandatory minimum sentence — the unconstitutional provision must be struck down. The ball is thrown back into Parliament's court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the remedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectively removed from the statute books (emphasis added).

[74] I conclude that constitutional exemptions should not be recognized as a remedy for cruel and unusual punishment imposed by a law prescribing a minimum sentence. If a law providing for a mandatory minimum sentence is found to violate the Charter, it should be declared inconsistent with the Charter and hence of no force and effect under s. 52 of the Constitution Act, 1982.

[13] On the basis of the above legal principles, it is clear that the statutory minimum sentence for possession of a loaded firearm is no longer still in effect: see also R. v. T.A.P. 2013 ONSC 797 and R. v. Scarlett 2013 ONSC 562 to the same effect.

[14] After a careful review of sentencing case law for loaded guns, Code J. in R. v. Nur 2011 ONSC 4874 concluded that the range of sentence for a first offence of possession of a loaded firearm under the previous 1998 Firearms Act amendments tended to be between two years less a day and three years imprisonment:

[41] In deciding what a fit sentence would have been, prior to the new 2008 regime, the case law that developed in the ten year period between 1998 and 2008 provides the best guide. That case law eventually made it clear that exemplary or denunciatory sentences must be imposed because the proliferation of loaded handguns causes grave danger to the public. The problem was and is particularly acute in Toronto. Although ss. 718, 718.1 and 718.2 of the Criminal Code set out a number of sentencing principles, in cases involving loaded handguns it was held that general deterrence, specific deterrence and denunciation were the predominant principles. In R. v. Danvers, (2005), 199 C.C.C. (3d) 490 at paras. 77 and 78 (Ont. C.A.), Armstrong J.A. adopted this approach on behalf of the Court of Appeal. He agreed with the trial judge, who had stated that "Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns." Armstrong J.A. continued:

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.

A few years later, the Court reiterated the point in R. v. Brown 2009 ONCA 563, (2009), 251 O.A.C. 264 at para. 33 (Ont. C.A.) stating:

As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration.

[42] Once this approach became firmly entrenched, around 2005, the appropriate sentence for a first offence of possession of a loaded handgun simpliciter, that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years imprisonment. Much longer sentences were imposed for recidivists. It is not surprising that this approach took hold around 2005. As will be seen below, when tracing the history of the 2008 legislation, it was in 2005 that Toronto experienced a dramatic increase in gun-related homicides. It came to be known as "the year of the gun". (Emphasis added).

(ii) Is the combination of drug production and a firearm an aggravating factor on sentence?

[15] On the basis of a considerable body of case law, it is evident that the combination of firearms and drugs is considered to be an aggravating factor on sentencing: In R. v. Crevier 2013 ONSC 2630, Patillo J. stated:

[57] The defence argues that using the drug offence as an aggravating factor in respect of the gun offences while at the same time sentencing Ms. Crevier for the drug offences is in effect double dipping or double punishment. I disagree. The fact that drugs were present in conjunction with the firearm is an aggravating factor. I do not consider that there is double counting. As pointed out by Nordheimer J. in R. v. Lucas, [2010] O.J. No. 3300 (S.C.J.) at para. 31 in rejecting a similar argument: "The simple point is that the possession of a firearm, while dangerous in and of itself, is all the more so when it is combined with the related possession of illicit drugs."

[16] Further, the dangerous combination of illegal drugs and guns has been the subject of commentary at many levels of court in Canada. An example of this concern was articulated by Stinson J. in R. v. Williams, [2007] O.J. No. 1354, (Ont.S.C.), where, at para. 34, he stated "the combination of illegal guns and illegal drugs is a toxic one that is highly volatile and can lead to tragic and fatal consequences."

[17] Finally, the most authoritative expression of this concern for public safety can be found in R. v. Wong 2012 ONCA 767 (Ont.C.A.):

[11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

[12] These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532.

[13] The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing. The sentencing judge's reasons note "the real tragedy that the combination of drugs and firearms has caused in the Greater Toronto Area, including York Region".

[18] As a result of the foregoing, there is little doubt that the combination of drug production and a firearm is an aggravating factor on sentence.

(iii) Bearing in mind the principles of totality and restraint, should the sentence to be imposed be served concurrently or consecutively?

[19] According to the Ontario Court of Appeal, the general rule is that different offences that arise out of the same behaviour normally receive concurrent sentences. Consecutive sentences, on the other hand, are normally imposed where there is some separation among the offences in time or they constitute different legally protected interests: R. v. Houle, 2008 ONCA 287; R. v. Gillis 2008 ONCA 312.

[20] As the British Columbia Court of Appeal pointed out in R. v. Borecky 2013 BCCA 163:

[25] I do not agree that sentences must be consecutive in all cases where an offender is convicted of both drug and weapons charges and see no error on the part of the sentencing judge in declining to apply such an imperative, which is not supported by legislation or case law.

[26] Section 85(4) of the Criminal Code mandates that a consecutive minimum sentence be imposed in the context of an offender using a firearm in the commission of an indictable offence. That section states that the sentence imposed on a person for an offence under s. 85 "shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed". There is no similar statutory requirement set out in the context of the mandatory minimum sentence for possessing a prohibited or restricted firearm with ammunition under s. 95 of the Criminal Code. Thus, in my opinion, mandatory consecutive sentences cannot be the intention of Parliament for all offences involving possession of firearms and possession of drugs for the purpose of trafficking.

[21] I have concluded in the instant case that the firearms offence and the drug offence were committed at the same time and involved the same legally protected interests. Essentially, the essence of both offences is the possession of lawfully prohibited items. The firearm was part of the drug production equipment and was possessed to provide protection in relation to the illegal grow operation. In my view, the drug production and the firearm possession were part of a linked series of acts within a single endeavour, which would most appropriately be the subject of concurrent sentences.

Principles of Sentencing

[22] Section 718 of the Criminal Code provides that:

"[t]he fundamental purpose of sentencing is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions having one or more of the following objectives:

(a) to denounce the unlawful conduct;

(b) to deter the offender, and others, from committing such an offence;

(c) to separate the offender from society, where necessary;

(d) to assist in rehabilitating the offender;

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

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

[23] Section 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of the offender's responsibility. An offender should not be deprived of his liberty if a less restrictive sanction would suffice in all the circumstances; rather, all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

[24] In R. v. Wust 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 468, Arbour J. stated:

In deciding on the appropriate sentence, the court is directed by Part XXIII of the Code to consider various purposes and principles of sentencing, such as denunciation, general and specific deterrence, public safety, rehabilitation, restoration, proportionality, disparity, totality and restraint, and to take into account both aggravating and mitigating factors. The case law provides additional guidelines, often in illustrating what an appropriate range of sentence might be in the circumstances of a particular case.

Marihuana Production Sentences

[25] It is apparent from the applicable case authorities that the appropriate range of sentence for a conviction for a first offence of marihuana production where there is a well-planned and carefully executed commercial venture with or without a hydro bypass tends to be between 10 and 15 months:

• R. v. Bick 2012 ONCJ 233 – 2074 plants and $18,000.00 worth of grow equipment – 12 months imprisonment;

• R. v. Moffatt 2012 ONSC 1720 – 451 marihuana plants, 54 bags of marihuana seeds and paraphernalia, prior conviction for marihuana production – 12 months imprisonment;

• R. v. Jewers-Dailley 2011 ONCJ 586 – 478 marihuana plants – 12 months imprisonment;

• R. v. Doan 2011 ONCA 626 – 369 plants, hydro bypass – 10 months imprisonment;

• R. v. Nguyen 2007 ONCA 645, 227 C.C.C. (3d) 262 (Ont.C.A.) - 1,121 plants and 18 pounds of harvested marijuana; as well $10,000 of electricity was stolen during the operation - Held: Although fifteen months imprisonment might be said to be somewhat high, it is not, in my view, outside the range.

• R. v. Ha [2008] O.J. No. 4295 (Ont.C.A.) – 480 plants and extensive hydro bypass – 18 months imprisonment; Held: "In holding that the sentence is within the range we accept the significant aggravating factors identified by the trial judge in his careful reasons for sentence".

[26] It seems evident on the basis of the foregoing that the range of sentence in the instant case - where there were considerably fewer plants (66 plants and 93 clones) and no hydro bypass - would be 10 to 15 months imprisonment.

Sentence Calculation

[27] The Crown relies heavily on cases such as R. v. Crevier (Ont.S.C.), and R. v. Williams [2007] O.J. No. 1354 (Ont.S.C.) in which loaded firearms were found in residential bedrooms and in regard to which, global sentences of 6 years and 4.5 years were imposed, respectively. In my view, it is not appropriate to compare gun cases involving crack cocaine with the case at bar particularly where the "crack" defendants had prior criminal records. The crack cocaine cases are not useful comparators given the numerous references in Court of Appeal judgments to the effect that cocaine is a dangerous, insidious and pernicious drug that continues to cause great harm in our society. In R. v. Woolcock, [2002] O.J. No. 4297, the Ontario Court of Appeal held that sentences in the range of 6 months to 2 years less a day are appropriate for approximately 6 grams of cocaine, with increased penalties for quantities in excess of that amount. Both of the above-noted cases involved quantities of crack cocaine well in excess of 6 grams. Additionally, unlike the world of crack cocaine commerce, gunplay in the context of a marihuana grow operation is a relatively rare phenomena in Canada.

[27] In distinguishing loaded handgun and cocaine charges from loaded handgun and marihuana production charges, there is no intention to suggest that the illegal possession of guns in grow operations is not an emerging, highly volatile and dangerous problem in Toronto neighbourhoods. Loaded handguns are enormously hazardous wherever they are found. In R. v. Danvers, 199 C.C.C. (3d) 490 (Ont.C.A.), a case involving a charge of murder in relation to the fatal shooting of a security employee of the nightclub, the Court stated:

[77] In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:

It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

[78] 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.

[28] The following conclusions emerge from the above case authorities:

• First, in respect to the commission of firearm and drug offences in combination, denunciation and deterrence are the paramount considerations on sentence.

• Second, absent the mandatory minimum sentence requirement for possession of a loaded firearm, sentences for this offence by a first offender tend to be in the range of between 2 to 3 years, according to R. v. Nur.

• Third, a thirty month sentence would strike an appropriate balance between the extreme ends of the 2 – 3 year range - given the private, defensive use of the firearm in a residence, while at the same time, recognizing the real possibility of a trespasser being shot or acquiring a dangerous weapon as a result of its careless storage under clothes in the bedroom.

• Fourth, the production of marihuana involving a planned, commercial-scale operation attracts sentences in the range of 10 to 15 months for a first offender based on the above case authorities. An appropriate "production" sentence in this case would fall in the 12 month range on the basis of relatively fewer plants and the lack of any hydro bypass.

• Finally, the confluence of drugs and guns is a serious, aggravating factor on sentencing that calls for a sentence escalation in the range of 12 months imprisonment to express the need for an admonitory message of deterrence and denunciation for exposing a residential neighbourhood to the joint perils of loaded firearm in a grow operation.

Conclusion

[29] A plea of guilty generally results in a reduced sentence not only because it saves the time and expense of a trial, but also because it is a sign that a defendant is remorseful for what he has done. I am prepared to give Mr. Paryniuk some credit for the fact that, given the adverse Charter ruling with which he was faced, he instructed counsel to make concessions that greatly shortened the trial. However, he will not be entitled to the equivalent consideration that I would have given him had he pleaded guilty.

[30] The defendant spent 37 days in custody prior to being released on bail. On the issue of pre-trial credit for imprisonment prior to trial, the comments by Cronk J.A. in R. v. Summers 2013 ONCA 147 are apposite:

In my view, properly construed, s. 719(3.1) of the Code permits a sentencing judge to credit pre-sentence custody up to a maximum of 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.

On the basis of the facts of this case and the principles enunciated, I will permit a deductible credit for pre-trial custody of 55 days, which for ease of computation will be rounded up to two months.

[31] The Crown has argued fairly strenuously that the sophistication of the grow operation is an aggravating factor and supports a C.D.S.A. sentence in the range of 18 months to 2 years. In my view, this position is somewhat overreaching having regard to the circumstances of this case. While this "grow operation" was not entirely without sophistication, here there were the typical elements of a system that are seen in virtually every marihuana production case. There was a three-stage hydroponic system with plants and clones in different rooms in addition to ballasts, shredders, fertilizer, climate controls and numerous 600 watt light bulbs. Grow operations typically have this type of processing system and this equipment in order to achieve some level of production. Moreover, the defendant has been found guilty of "production" which necessarily requires a fair degree of planning and organization. Having secured a conviction for that offence, it would seem somewhat excessive to seek a greater punishment for the very planning and organization for which he was found guilty. In my view, the level of sophistication in this case is not such that it should be considered to be an aggravating factor on sentence. In 2007 in R. v. Nguyen, the Court of Appeal determined that 15 months was at the high end of the range; the appropriate "production" sentence in the instant case should be in 12 month range, in my view, because, unlike the facts in Nguyen, here there were relatively fewer plants and no hydro bypass.

[32] The appropriate sentence for the production offence, simpliciter, is 12 months imprisonment based on the features of the operation. The appropriate sentence for the loaded firearm, simpliciter, should be 30 months having regard to the place in which it was found, the use intended, the manner in which it was carelessly stored and the real possibility that a trespasser in the residence might be shot or find it and create an even greater danger. The quantum of the combined sentences results in a total sentence of 42 months. However, the toxic confluence of a marihuana production and a loaded handgun in a residential area creates such a volatile and dangerous condition that a further exemplary sentence of twelve months imprisonment will be imposed to address this aggravating feature of the case. That would result in a total deterrent and denunciatory sentence of 54 months. While giving paramouncy to the aforementioned principles and the protection of the public, some degree of balancing is appropriate in order to give effect to principles of sentencing such as proportionality, rehabilitation, totality and restraint, particularly in the case of a first offender serving a penitentiary sentence. As Rosenberg J.A. stated in R. v. Borde, 172 C.C.C. (3d) 225 (Ont. C.A.), "[a] first penitentiary sentence should be as short as possible." Bearing that in mind, a reasonable reduction in the sentence quantum is in order and that rebalancing of all aspects would, after careful consideration, result in a global sentence of 45 months. On the basis of the facts of this case and the principles enunciated in R. v. Summers, I will permit a deductible credit for pre-trial custody of two months. In the result, Mr. Paryniuk will be sentenced to 43 months imprisonment.

Concurrent Sentences

[33] As noted above, having treated the confluence of a loaded firearm in a grow operation as an aggravating factor - on the basis of the close connection between those criminal acts - the sentences for the two offences ought to be concurrent.

Sentence

[34] I have considered all the circumstances of these offences, including aggravating and mitigating factors, the antecedents of the accused, the principles of sentencing, and sentences imposed in similar cases, and on the basis of the foregoing, I have determined that an appropriate global sentence is one of 43 months.

(a) On the count of Possession of a Prohibited Firearm with Ammunition, the sentence is a term of 43 months in the penitentiary.

(b) On the Count of Production of Cannabis, the sentence is a term of 12 months, concurrent.

(c) On the count of possession of cannabis sativa for the purpose, the sentence will be three months, concurrent;

(d) On the second count of possession of cannabis sativa for the purpose, the conviction will be stayed on the basis of the rule against multiple convictions for substantially the same facts: Kienapple v. The Queen, [1975] 1 S.C.R.;

(e) On the count of possession of cannabis resin for the purpose, the sentence will be 15 days, concurrent;

(f) On the count of possession of psilocybin, the sentence will be 15 days, concurrent;

(g) On the count of possession of proceeds of crime, the sentence will be 30 days, concurrent;

(h) On the count of possession of a firearm without being the holder of a licence, the conviction will be stayed on the basis of the rule against multiple convictions for substantially the same facts: Kienapple v. The Queen, [1975] 1 S.C.R. 729;

(i) On the count of possession of a firearm knowing he was not the holder of a licence, the conviction will be stayed on the basis of the rule against multiple convictions for substantially the same facts: Kienapple v. The Queen, [1975] 1 S.C.R.;

(j) On the count of Careless Storage of a firearm, the sentence will be 5 months, concurrent.

(k) On the count of Careless Storage of ammunition, the sentence will be 30 days, concurrent.

[35] All the above sentences are to be served concurrently for a total global sentence of 43 months in the penitentiary.

DNA Order

[36] As a result of the serious nature of the offences of which the defendant has been found guilty, the circumstances surrounding their commission and the relatively minimal impact such an order would have on the defendant's privacy and security, a DNA sample will be required.

S. 109 Order

[37] In light of the conviction on the count of possession of a loaded firearm, pursuant to s. 109 of the Criminal Code, you will be prohibited from possessing any firearms and other weapons, devices and ammunition about which you will be advised, for a period of 10 years.

Criminal Code s. 490.1 Order

[38] Pursuant to ss. 490.1(1) of the Criminal Code the firearm and ammunition seized are hereby forfeited to the Crown. They are to be destroyed, but not until all appeals in this matter have been exhausted.

P. Harris, J.

August 8, 2013