Court File and Parties

Court File No.: City of Burlington 2013-70285 Date: 2013-12-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Shade Nuttley

Before: Justice Stephen D. Brown

Heard: December 20, 2013

Reasons for Sentence Released: December 23, 2013

Counsel:

• Amanda Camara, for the Crown
• Brendan Neil, for the accused Shade Nuttley

Reasons for Sentence

Brown, J.:

[1] The offender pleaded guilty to the following offences before me:

1. Refuse breath demand contrary to s. 254(2) of the Criminal Code arising on December 30, 2012;
2. Theft Under $5,000 on December 30, 2012;
3. Fail to Attend Court on February 20, 2013;
4. Assault against Carrie Nuttley on May 4, 2013;
5. Mischief against the Property of Carrie Nuttley on May 4, 2013;
6. May 4, 2013, Possess a Prohibited Firearm with Readily Accessible Ammunition contrary to s. 95(a) of the Criminal Code;
7. Careless storage of a firearm on May 4, 2013 contrary to s. 86(2) of the Criminal Code;
8. May 4, 2013, Possess a Prohibited Firearm without being a Holder of a License contrary to s. 92(1) of the Criminal Code;
9. Possess Prohibited Devices on May 4, 2013 contrary to s. 92(2) of the Criminal Code; and
10. Breach of a Recognizance on June 15, 2013.

[2] The Crown proceeded by way of Indictment regarding the s. 95 offence, and at the time of the election this exposed Mr. Nuttley to the mandatory minimum 3-year punishment.

1.0 Facts of the Offences

[3] Regarding the offences of theft under and refuse breath demand, on December 30, 2012 the offender was at a Fortino's supermarket in Burlington at 5:30 p.m. when he was observed by a loss prevention officer taking items and placing them in his shopping cart and then placing shopping bags over the items. He left the store without paying. The amount of items stolen totalled $258.91. The police were called and saw him operating his motor vehicle and stopped him. They noted an odour of an alcoholic beverage on his breath and demanded that he provided a sample of his breath into an approved screening device. He unequivocally refused two demands and was arrested for both the theft and the refuse offence. He was released on a promise to appear.

[4] After attending court the offender failed to attend court on February 20, 2013. He was arrested and released on a recognizance.

[5] On May 4, 2013 the offender and his wife, Kerry Nuttley, were at his family home celebrating his return after he had worked out west for three months. They shared a bottle of vodka to celebrate.

[6] His wife found texts on his cell phone that she suspected indicated that he was having an affair. As she confronted the offender about whether he was having an affair they got into an argument and she slapped him. He became enraged and put her on the ground and put a boot on her face, slightly splitting her lip. He said he would kill her if she tried to keep their children away from him. He threw liquid on her and she went up to her bedroom and he followed her up and belittled her and took her iPad and broke it.

[7] She called the police and, while the police were interviewing her they asked the usual question being "Does your husband have any firearms?" to which she responded that he has an AK47.

[8] The police questioned Mr. Nuttley about this and, after being coy initially, he told them that he had a firearm in the basement of his mother's home in Waterdown and that he did not have a permit to possess it. He gave them the location of the weapon in the house.

[9] The police attended at Mr. Nuttley's mother's home and found a gym bag located in the basement secured with a small travel lock. From the bag they retrieved a Norinko rifle which is a prohibited firearm, two loaded high capacity (30 round) magazines which are prohibited devices, and 120 rounds of ammunition capable for use in the weapon, in addition to the rounds in the high-capacity magazines.

[10] These weapons were seized and the offender was charged with the offences that he has pleaded guilty to.

[11] He was held for bail, but subsequently released on bail.

[12] Then on June 15, 2013 Mr. Nuttley was found by the police at his wife's home in contravention of the term in his recognizance that he remain 500 meters away from her residence. He was held in custody and has been in custody since that date.

[13] A trial date was set and the matter was to proceed to trial on November 13, 2013 before me, however the Court of Appeal released its decisions in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 and R. v. Smickle, 2013 ONCA 678, [2013] O.J. No. 5070 on November 12, 2013 and subsequently Mr. Nuttley pleaded guilty to the charges before me. The matter was put over for a presentence report.

2.0(i) Position of the Crown

[14] The Crown's position on sentencing Mr. Nuttley is as follows:

[15] For the Assault and Mischief the Crown seeks a non-custodial sentence, but a three-year term of probation to assist Mr. Nuttley's rehabilitation;

[16] For the Fail to Attend Court they seek a $300.00 fine;

[17] For the Refuse Breath Demand they seek a minimum fine of $1000.00 and a driving prohibition of 12 months. The Theft Under should attract a suspended sentence and probation;

[18] For the Breach of Recognizance charge, the Crown seeks 45 days custody consecutive to any other sentence;

[19] Finally, for the firearms offences, the Crown seeks a period of 3 years incarceration consecutive less time served allotted on a 1:1 ratio.

[20] Ancillary orders of DNA, and a s. 109 order for life are also sought.

[21] I have already signed a forfeiture order for the firearm and ammunition and magazines.

2.0(ii) Position of the Defendant

[22] Mr. Neil, on behalf of the defendant, submits that the defendant should be given credit for his pretrial custody at a 1.5:1 ratio and that since his actual pretrial custody now amounts to 223 days, that would leave him with an enhanced credit of 335 days, which he submits is a sufficient time in custody for these offences.

[23] Mr. Neil does not object to the Crown's submissions regarding the appropriate sentence on the remaining charges, nor on the ancillary orders sought.

3.0 Circumstances of the Offender

[24] The following observations are gleaned from the thorough presentence report prepared by Probation and Parole Officer Robert Angus dated December 16, 2013 and filed as an exhibit in these proceedings.

[25] The offender was born in Hamilton, Ontario on December 19, 1972, so he was 40 years of age at the time of the commission of the offences.

[26] He resided with both of his parents until the age of five when his parents separated and his young life was tumultuous. His mother was an alcoholic and was often assaultive to his father. After the separation he resided with his father who moved to Timmins and obtained work as a miner. He was independent as a child as his father often worked night shifts. He maintains a positive relationship with his father.

[27] His summers as a youth were spent with his mother and grandparents. His mother still has alcohol issues and possible mental health issues.

[28] His father entered another relationship and the offender has two stepsisters that he grew up with and with whom he still maintains contact and a positive relationship with.

[29] He graduated from high school and then took a two-year diploma program at Centennial College receiving an automotive transmission technician certificate. He found employment in this field for eight years before purchasing the business from his former employer and ran the business as an owner for the next 11 years. His wife has spoken to individuals who indicate that they would offer him employment upon his release from custody.

[30] Mr. Nuttley met his wife while in his early twenties and married her in 2000. They have two daughters ages eight and ten. He apparently is an involved and caring father and his daughters miss him very much and want him home as soon as possible. According to her, there is no history of abuse in the relationship other than the one that forms the basis for the assault.

[31] His wife describes their relationship in glowing terms for the first ten years of their marriage, but then the offender became addicted to Percocet after a dental surgery and his life started to disassemble. He managed to eventually overcome this addiction after being on the methadone program for a six-year period. His wife indicates, however, that this addiction was then replaced with alcohol abuse.

[32] Mr. Nuttley has a severe addiction to alcohol and has been addicted for the past ten years. Alcohol has destroyed his business and family life. He now realizes this. He is committed to complete abstinence in the future and has availed himself of every one of the admittedly limited programs in Maplehurst. He is willing and anxious to continue any addiction or other counselling programs directed by his probation officer.

[33] In the limited programs that he has taken at Maplehurst he is described by the social worker at the Maplehurst Correctional Center as being a motivated and very engaged student.

[34] Mr. Nuttley has one previous entry on his record for a minor assault, which was imposed on March 28, 2000 wherein he was sentenced to a $500.00 fine and 12 months of a non-reporting probation order.

[35] Under the section of "Character/Behaviour/Attitude" of the presentence report the author states as follows:

The subject presented as open and talkative during the interview for this report. He described the actions that bring him before the Court as out of character adding that all of his current offences relate to his struggle with alcohol. The subject minimized some of his illegal actions but ultimately shared that "it is my entire fault". He reports that he and his wife are eager to put things behind then [sic] then move on as a family. Mr. Nuttley reports that the weapon involved in the charges before the Court was originally a hunting weapon adding that it had not been used for years.

Carrie Nuttley described her husband as an outgoing, always happy person who often went out of his way to help others. She described him as a great father to their two daughters suggesting that the girls have been having trouble adjusting to not having their father around. Mrs. Nuttley indicated that the subject has always been involved in their daughter's activities. She became emotional when suggesting that their daughters "want him home for Christmas". Mrs. Nuttley went on to explain that she has no concern for her or the children's safety with regards to the subject.

The subject's step sister, Jackie Bowman, described him as being loyal and caring. She went on to indicate that he presents as determined to make things right with his family. She described him as repentant, adding that she has no doubt that he will follow through and better himself and move on in a positive way.

[36] Mr. Nuttley made a statement to the Court pursuant to s. 726 of the Criminal Code. In that statement he expressed what I consider to be true remorse and a willingness to address his underlying issues. He was remorseful for the harm that he has done to his wife and his children and wishes to make amends to them.

[37] I consider the presentence report to be a positive one that paints a too common picture of a man whose life has been ravaged by the effects of alcohol, and who committed, during this six month period, some very serious offences that are out of character for him. I consider that he is a man that has great potential for rehabilitation, and that given a just and appropriate sentence that his rehabilitation will be successful.

4.0 Analysis

[38] The minimum mandatory sentence of 3 years imprisonment for a s. 95 offence was declared to be unconstitutional in the recent decisions of R. v. Nur and R. v. Smickle, supra.

[39] In R. v. Nur, Doherty J.A. engaged in a careful and thorough analysis of the reasons why the mandatory 3-year minimum was a breach of s. 12 of the Charter that could not be saved by s. 1.

[40] In that case, Mr. Nur was a 19-year-old first offender that was in possession of a loaded prohibited firearm. The facts of that case are set out at paragraph 11 of that decision as follows:

11 The events underlying the charge began at a community centre located in the Jane and Finch neighbourhood of Toronto. That area is described as a "priority" neighbourhood because of its very high levels of poverty, population density, and crime. Gun violence is a serious and ongoing problem in that community.

12 Early one winter evening, a young man entered the community centre and spoke to a staff member. He advised the staff member that he was afraid of someone who was waiting outside the community centre to "get him". The staff member saw a person lurking outside who looked very threatening. The staff member decided to put the community centre on lockdown and called the police.

13 When the police arrived at the community centre, they saw four men standing at one of the entrances. The appellant was one of the four men. As one of the officers approached the group, all four men ran in different directions.

14 The police officer chased the appellant. The appellant was holding his left hand against his body as he ran. He appeared to be concealing something. The officer was rapidly closing ground on the appellant when he saw the appellant throw something away. The officer continued his pursuit, catching and arresting the appellant moments later.

15 After arresting the appellant, the officer returned to the area where he had seen the appellant throw something to the ground. The officer found a loaded handgun under a parked car. The gun was a fully operable 22-calibre semiautomatic, equipped with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in 3.5 seconds. The gun is a prohibited firearm as defined in the Criminal Code.

16 The trial judge was not satisfied beyond a reasonable doubt that the appellant had anything to do with the events that led to the police being called to the community centre. He also could make no specific finding as to when, how, or why the appellant came into possession of the loaded handgun. The trial judge found, at para. 27:

At some point, Nur [the appellant] came into possession of the prohibited firearm and he hid it under his coat. There is no clear evidence as to how long he had been in possession of the gun or how he came to possess it.

[41] Justice Doherty characterized the range of offenders caught in the net of s. 95 offences in the following manner at para 51 of the decision where he observes:

51 The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

52 There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

[42] In the gross disproportionality analysis in Nur, the Court of Appeal states at para 89:

89 The broad scope of the conduct captured by s. 95 makes it difficult to come to any definitive conclusion as to the relative gravity of the conduct proscribed by s. 95. Unlike other firearm provisions that carry a significant mandatory minimum sentence for a first offence, there is no common denominator in the conduct captured by s. 95 that allows one to say that, because of the harm involved, a s. 95 offence is a very serious criminal offence. Indeed, Parliament has recognized that s. 95 offences are not inherently serious crimes by providing that the Crown can proceed summarily, in which case there is no mandatory minimum and the full panoply of sentencing options, including discharges, are available to the sentencing judge.

[43] In examining the reasonable hypothetical in the nature of a hybrid offence the Court of Appeal responded to the Crown's submission that the Crown's ability to elect to proceed summarily in some cases can provide a safeguard to the imposition of a three year minimum where the facts of the case suggest a less true crime and more regulatory nature of the offence. In rejecting this argument, Doherty, J.A. refers to a previous decision that I rendered in R. v. Snobelen, [2008] O.J. No. 6021 where I sentenced the offender in that case to an absolute discharge.

[44] It is worth noting the courts reasoning that is captured on this point at paras 155-161 of the decision where Doherty J.A. states as follows:

155 Crown counsel accepts that the trial judge went too far in viewing the Crown's power to elect to proceed summarily as "the sine qua non of constitutionality under the s. 12 analysis". Crown counsel instead submits that the Crown's ability to proceed summarily provides "an additional safeguard" in those borderline reasonable hypothetical cases.

156 With respect, I do not agree with the trial judge's analysis of the effect of the Crown election on the constitutionality of the mandatory minimum. Further, while the Crown's ability to elect may provide a safeguard in those cases where the facts are known from the outset and agreed upon by the parties, the Crown election provides no safeguard in the vast majority of cases where the facts are in dispute or unknown at the time of the election.

157 The Crown elects to proceed by indictment or by way of summary proceedings at an early stage in the prosecution. The election is based on the information available to the Crown at that time. If the accused pleads not guilty and is convicted, he or she will be sentenced based on findings of fact made by the trial judge on sentencing. If the Crown chose to proceed by indictment, the constitutionality of the three-year minimum will be tested in the context of the facts as found for the purpose of sentencing and not the facts as understood by the Crown when the election was made.

158 If an accused pleads not guilty and is convicted, it is not unusual that the facts for the purpose of sentencing will be quite different from the Crown's understanding of the case when the Crown made its election. There will inevitably be cases in which the Crown elected to proceed by indictment, but would have elected to proceed summarily had the election been based on the facts as found at the time of sentencing.

159 A slight variation on the facts in Snobelen, a case much discussed as a potential reasonable hypothetical during oral argument, demonstrates that the Crown election cannot avoid an infringement of s. 12. In Snobelen, the accused owned a ranch in Oklahoma. He sold the ranch, and the personal property on the ranch was shipped to him in Ontario. Unbeknownst to the accused, that property shipped to him included a handgun that was a restricted firearm and ammunition for the handgun. The accused did not have a licence and the gun was not registered in Canada, although its possession in Oklahoma was apparently lawful. The accused did not become aware that the gun and ammunition were in his home until sometime after they were delivered with the rest of the property from the Oklahoma ranch. He intended to dispose of the gun and believed that his wife had done so. He was, however, aware that the gun was in his home for a period of time and that he did not have a licence to possess the gun. The accused and his wife were having marital problems, and she reported the existence of the gun to the police. The police executed a search warrant and found the gun in the home. The accused readily admitted he should have disposed of the weapon. There was no suggestion that he had used the gun in any way or that there was ever ammunition in the gun.

160 On the facts outlined above, the accused was charged with possession of a restricted firearm and readily accessible ammunition. The Crown chose to proceed summarily, the accused pleaded guilty, and the trial judge imposed an absolute discharge.

161 If one assumes, however, that in addition to the facts outlined above, the Crown had a credible allegation from the spouse that the accused had used the presence of the handgun in the home to intimidate her and attempt to dissuade her from taking any legal steps she was entitled to take against him, the Crown could, acting reasonably, have decided to proceed by indictment. 18 Assuming that the accused pleaded not guilty and the rest of the evidence was identical to the actual facts in Snobelen, and that the trial judge did not believe the spouse's evidence about the intimidation, the trial judge would have convicted the accused under s. 95. However, because the Crown, relying on an aggravating factor that was ultimately rejected by the trial judge, had elected to proceed by indictment, the trial judge would have been required to impose a three-year penitentiary term based on facts that were identical to those that would have led to an absolute discharge had the Crown proceeded summarily. In those circumstances, the three-year penitentiary term would surely be a grossly disproportionate sentence.

[45] I note that in the case at bar, there is no suggestion that the offender had ever threatened his wife in any way in relation to the weapon, that the weapon was offsite and stored at his mother's home as opposed to the matrimonial home, and that the weapon was in no way associated with any other criminality other than its mere possession. The offender was not engaged in any criminal enterprise such as selling drugs and had apparently possessed the weapon for some period of time without incident.

[46] In my view, the possession in this case falls closer to the regulatory offence classification than the true crime classification as described in Nur.

[47] That said, there are aggravating factors present here that were not present in the Snobelen case. Unlike Mr. Snobelen, Mr. Nuttley was an alcoholic whose life at the time was spinning out of control as a result of his addiction. He had assaulted his wife. He was exhibiting poor judgment in committing his offences of theft and refuse a roadside demand, followed by his failing to appear in court. His business had succumbed to the consequences of his addiction. Mr. Snobelen had none of these afflictions and was by all accounts an upstanding member of the community with no criminal record and absolutely no risk of reoffending.

[48] Had Mr. Nuttley even obliquely referred to the firearm in the course of his domestic dispute for a purpose of intimidation of his spouse, then I would be placing the s. 95 offence in the category of the true crime spectrum of this offence.

[49] I am mindful that in the case of Nur the trial judge sentenced Nur to 1 day in custody after crediting him with 40 months of pretrial custody.

[50] Justice Doherty stated in the particularized inquiry as applied to Nur in sentencing as follows at paras 104-109 of the judgment:

104 The factors relevant to a determination of whether a minimum sentence is grossly disproportionate vis-a-vis the accused can be considered compendiously by comparing the mandatory minimum sentence to the sentence that would have been imposed under a sentencing scheme that was identical to the existing scheme save for the requirement of the mandatory minimum. The trial judge followed this approach.

105 The trial judge reviewed the s. 95 sentencing jurisprudence as of 2008 before the three-year minimum sentence was introduced. As he pointed out, that jurisprudence developed under a sentencing scheme that carried a maximum penalty of ten years and a minimum penalty of one year when the Crown proceeded by indictment. The trial judge reasoned that as the one-year minimum had never been successfully challenged, he must accept it for the purpose of deciding what would have been an appropriate sentence but for the three-year minimum.

106 I tend to agree with the trial judge. However, I do not think the mandatory one-year minimum has much effect on what would have been an appropriate sentence for the appellant but for the three-year minimum. Under the relevant principles of sentencing, and having regard to the case law, this appellant would have received a sentence well beyond one year regardless of whether the one-year minimum existed.

107 As the many cases reviewed by the trial judge indicate, sentencing under s. 95 before 2008 stressed denunciation and deterrence. Mitigating factors personal to a particular accused necessarily took on a less significant role when fixing the appropriate penalty: e.g. see R. v. D.(Q.) (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at paras. 77-78; and R. v. Nguyen, 2005 BCCA 115, 209 B.C.A.C. 133, at para. 5.

108 The trial judge, at para. 45, described the sentencing range for a s. 95 offence before the introduction of the three-year minimum as between two years less one day and three years. In his view, at para. 71, the appellant would have received a sentence of two and one-half years. He concluded that the three-year minimum was not grossly disproportionate as applied to the appellant.

109 I am in substantial agreement with the trial judge's analysis of the sentencing case law. Had the trial judge been sentencing the appellant without the three-year minimum in place, the crucial question would have been whether a penitentiary term was necessary. I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years. As the range of appropriate sentences includes a three-year sentence, a mandatory minimum three-year sentence cannot be described as grossly disproportionate.

[51] That analysis is to be read in conjunction with paragraph 6 of Nur where the Court of Appeal does not propose to suggest what the appropriate sentence in this case should have been other than it should have been a significant jail term. Justice Doherty states:

6 Lastly, as to the fitness of the actual sentence imposed, the trial judge sentenced the appellant to one day in custody and gave him 40 months credit for 20 months pre-sentence custody. The Crown does not suggest that the appellant should be re-incarcerated. I see no practical value in going through the exercise of determining what would be an appropriate sentence for the appellant in the absence of the mandatory minimum and had he not served the equivalent of a 40-month sentence. I observe only that, even absent the mandatory minimum, and having regard to the appellant's age and his first offender status, a significant jail term was still necessary in the circumstances of this case.

[52] The case of R. v. Smickle, supra, also encompasses facts that, in my view, are more aggravating than the case at bar.

[53] In that case the trial judge ruled that s. 95 infringed the Charter and then proceeded to impose a one-year conditional sentence on an offender which she then reduced to a five-month sentence taking into account the offender's pretrial incarceration and strict bail terms. The Court of Appeal held that there were findings of fact that were unsupported by the evidence and that the sentence was manifestly inadequate. They invited further submissions on sentence and did not impose a new sentence in light of the fact that the offender was sentenced 20 months before and that there was some fresh evidence before the court.

[54] In that case the offender, a 27-year-old man without a criminal record, was in his cousin's apartment with a loaded and cocked 25-calibre semi-automatic handgun. As he was "chilling" on the couch with the gun taking pictures of himself with his computer to post "cool" pictures, he had the misfortune of having the police execute a dynamic entry pursuant to a search warrant into the apartment.

[55] The police used flash bang grenades that startled the offender causing him to rise off the couch and drop his laptop and the loaded handgun. Fortunately the handgun did not discharge when it was dropped. The offender was fortunate not to have been shot by the police.

[56] Doherty, J.A., writing for the Court, rejected some of the trial judge's findings concerning some facts that served to mitigate her sentence.

[57] Justice Doherty summarized at paras 28-29 that:

28 The respondent was not off by himself in some isolated forest playing with a fully loaded cocked handgun. He was in someone else's apartment located in a high-rise apartment building. It is fair to assume there were other people in the adjoining apartments who could well have been at risk had the gun accidentally discharged. Furthermore, as subsequent events clearly demonstrated, the respondent had no idea of, and no control over, what might happen as he was playing with the fully loaded cocked handgun. The police who were engaged in an important and dangerous public duty were clearly put at risk by the respondent's conduct. Surely, it is a matter of good fortune that someone was not hurt either by the accidental discharge of the respondent's firearm or by the police response to the apparent threat posed by the respondent.

29 On any realistic view of the respondent's conduct, he demonstrated a wanton or reckless disregard for the lives and safety of others. Fortunately, his conduct did not cause any actual harm. His criminally negligent behaviour is, however, morally blameworthy in the same way as was the conduct of the accused in R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, who accidentally shot and killed his friend while fooling around with a loaded rifle in his hand. No one would ever characterize what the accused in Morrisey did as "drunken tomfoolery". Nor, in my view, should anyone characterize the respondent's conduct as "adolescent preening".

30 The respondent's conduct falls squarely at the "true crime" end of the s. 95 spectrum I described in Nur. He had a loaded cocked gun in his hand. He was engaged in conduct that posed a serious and immediate risk to others. He had no authority to possess the gun at any place or in any circumstances. Even having regard to the personal circumstances of the offender, 2 a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.

[58] Keeping in mind the above principles that dictate that even absent the minimum mandatory sentence sentencing on s. 95 offences should emphasis denunciation and deterrence, I must now fashion a fit and appropriate sentence for this offender adhering to the mandatory guidelines in ss. 718 - 718.2 of the Criminal Code.

[59] Thankfully, the decision of Nur removes the constraints that previously existed that would have compelled me to impose a minimum mandatory 3-year sentence on Mr. Nuttley for the section 95 offence.

[60] Criminal law is not a one size fits all endeavour. It is not just black or white, but it is frequently gray and murky.

[61] Sentencing is a particularly difficult process that Judges engage in. It is a complex balancing of often competing sentencing principles, each of which are designed to address important societal issues and concerns while recognizing that every offence is different, every offender is different.

[62] It is recognized by me that in sentencing for these types of offences, denunciation and general deterrence are the primary sentencing goals. That said, rehabilitation is a principle not to be removed from the matrix.

[63] Insofar as credit for pretrial custody that the accused has served, in applying the principles in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, leave to appeal to S.C.C. granted August 15, 2013: [2013] S.C.C.A. No. 191, I am of the view that had the accused been sentenced earlier in these proceedings, he would be a good candidate for statutory remission and parole. He has willingly participated in many of the limited rehabilitative programs available to him while in custody and reports from the prison social worker are positive.

[64] As well, even though he set a date for trial and entered his plea on a trial date, one cannot fault him for taking a matter to trial when the constitutionality of the section of the Criminal Code exposing him to the most jeopardy was actively in the appellate process and ultimately resolved in his favour one day before his scheduled trial date.

[65] With the remand centre located in this jurisdiction, I am well aware of the onerous conditions facing the inmates at Maplehurst. Lockdowns and overcrowding are common in that institution.

[66] In all the circumstances, I am prepared to give Mr. Nuttley credit for his pretrial custody at the rate of 1.5 to 1 and, accordingly, the deduction of time from his sentence will result in an enhanced credit of 335 days, which is 11 months of credit.

[67] In sentencing on the s. 95 offence, I have been given a panoply of sentencing options ranging from an absolute discharge at one end of the spectrum to 10 years imprisonment at the other.

[68] I have taken into account the following aggravating factors on this sentencing:

• Mr. Nuttley was never licensed to possess this firearm;
• It was stored in a careless manner;
• It was a prohibited weapon that is designed to be very effective at causing death and, as such, is an inherently dangerous item;
• He possessed oversize prohibited magazines designed to hold 30 bullets in each magazine that only serve to increase the lethality of the weapon;
• He was at the material time an alcoholic and, by the very nature of that disease, his judgment would have been impaired on a fairly regular basis, thus increasing the danger that he could decide to use the weapon in a drunken stupor;
• This very lethal weapon could have easily been stolen in a break and enter into his mother's home perhaps falling into the hands of individuals who were engaged in a criminal antisocial lifestyle and who could have passed the weapon along to someone interested in its very lethal nature to further their criminal objectives.

[69] The following factors have been taken into account by way of mitigation:

• He comes from what the probation officer describes as a "non typical childhood". Mr. Neil explained that he virtually raised himself as his father was absent due to work requirements during most evenings and his mother had her own issues with alcohol and possible mental health problems;
• Other than a dated record for a minor assault, the offender had no prior involvement with the law;
• He pleaded guilty to the charges once the major impediment of the three-year mandatory minimum was removed;
• By all accounts he never threatened or flaunted the weapon, it appears to have been left at his mother's in the condition that it was found by the police for a considerable period of time and it has not been used for years;
• Mr. Nuttley has the support of his family and none of his family members fear for their safety;
• He is willing to take counselling that will assist him in his battle with his addictions and recognizes that he must remain alcohol free for the rest of his life;
• There is no evidence that he ever handled the weapon while under the influence of alcohol;
• He has marketable skills and is a talented mechanic who can obtain employment immediately upon his release.

[70] Taking into account the aggravating and mitigating factors that I have recognized and applying these factors to the principles set out in ss. 718 - 718.2, I am of the view that Mr. Nuttley would be a good candidate for a conditional sentence of imprisonment. I do not think that he poses any danger to the public should he be released from custody, he is not subject to a minimum sentence of imprisonment, and a conditional sentence with strict conditions can address the requirements of denunciation and general deterrence and is not inconsistent with the sentencing principles in s. 718.

[71] In addition to the 11 months of pretrial custody that I have credited to Mr. Nuttley, I think that it is appropriate that he serve an additional 12 months of a conditional sentence to be followed by a period of probation for 3 years. Counsel can make submissions on the conditions of the conditional sentence order. On the remaining firearms offences, the sentence will be suspended and he will be placed on probation for a period of three years.

[72] For the remainder of the offences I will sentence Mr. Nuttley as follows:

1. On the refuse roadside charge, he will be sentenced to a fine of $1000.00. There will be a one-year driving prohibition imposed under section 259;

2. For the theft under charge, the sentence is suspended and he will be placed on a concurrent probation order for 3 years;

3. For the breach of recognizance charge, he will be sentenced to a conditional sentence of 30 days consecutive to the sentence on the s. 95 offence and on the same terms and conditions;

4. For the fail to appear in court, he will be adjudged a consecutive fine of $300.00;

5. For the assault and mischief charge, sentence will be suspended and he will be placed on a concurrent probation order for 3 years on each count.

[73] There will be an order compelling Mr. Nuttley to provide a sample of his DNA for inclusion in the national databank.

[74] There will be a s. 109 order for life.

[75] For the 3-year probation, Mr. Nuttley will report to a probation officer as directed. He is to abstain from the purchase, possession or consumption of alcohol or other intoxicating substances. He is to attend and actively participate in programming or counselling as directed for substance abuse and mental health. He is to attend and actively participate in and complete the PARS program. He is to sign all necessary releases to allow his supervisor or probation officer to monitor compliance with any counselling that he is required to attend. He is not to have any communication directly or indirectly with Carrie Nuttley, except through legal counsel, or except with her written revocable consent filed with the probation office. He is not to attend within 100 meters of Carrie Nuttley's place of residence, education, employment or any other place that he knows her to be, except with her written revocable consent filed in advance with the probation office. Finally, the probation orders will contain a term that he is not to own, possess, control or carry any weapon as defined by law.

[76] These terms and conditions will be mirrored in the conditional sentence order together will any additional terms that counsel feel are necessary and that I direct.

Released: December 23, 2013

Signed: "Justice Stephen D. Brown"