Court File and Parties

Ontario Court of Justice

Date: November 21, 2014

Court File No.: Belleville 131621

Between:

Her Majesty the Queen

— and —

David Kift

Before: Justice E. Deluzio

Reasons for Sentence released on: November 21, 2014

Counsel:

• Mr. P. Layefsky, Counsel for the Crown
• Mr. M. Johnston, Counsel for the accused David Kift

Reasons for Sentence

Justice E. Deluzio:

Convictions

[1] On July 22, 2014 following a 19 day trial Mr. Kift was convicted of the following offences:

1. 8 counts of possession of firearms and weapons contrary to a prohibition order Section 117.01(1);
2. 20 counts of possession of prohibited or restricted firearms with readily accessible ammunition Section 95(b);
3. 5 counts of knowledge of unauthorized possession of a weapon Section 92(2);
4. 3 counts of unauthorized possession of a firearm Section 91(1);
5. 2 counts of unauthorized possession of a weapon Section 91(2);
6. 20 counts of unsafe storage of a firearm Section 86(2); and
7. 2 counts of possession of a firearm knowing that the serial number had been removed, Section 108(b).

Arrest and Seizure

[2] Mr. Kift was arrested on March 7, 2013 following a high risk police search of his residence. Police seized 67 firearms, including prohibited and restricted firearms, prohibited devices including over capacity magazines and silencers, thousands of rounds of ammunition, and commercial and military explosives.

Criminal History and Prior Conviction

[3] Mr. Kift is a convicted gun trafficker and federal parolee. He is also a former RCMP officer. He was on federal parole at the time of his arrest for these offences. In 2003, during a police operation known as "Project Pun", police executed a search warrant on the same residence and on December 6, 2007 following a trial Mr. Kift was convicted of 9 gun trafficking and related offences, including illegally transferring handguns, removing serial numbers from handguns, and possession of a prohibited weapon. He received a 5 year penitentiary sentence. A Section 109 Criminal Code of Canada prohibition order was also imposed.

[4] Mr. Kift was granted early release after serving 1/6 of his sentence. He was released on full parole on July 10, 2010. As a condition of his release he was prohibited from owning or having possession or control of any weapon as defined in Section 2 of the Criminal Code.

Charter Breach and Abuse of Process

[5] Within hours of his arrest for these offences, Mr. Kift's parole officer was notified and an apprehension warrant was issued. Mr. Kift was not charged with these offences or brought before a Justice of the Peace until 15 days after his arrest. For reasons outlined in my decision, released July 22, 2014, Mr. Kift's detention from the date of his arrest until taken for a bail hearing was found to be an abuse of process and in breach of the Section 9 of the Canadian Charter of Rights and Freedoms.

[6] Evidence derived from Mr. Kift during his unlawful detention was excluded, both as an alternative remedy pursuant to Section 24(1) and as evidence derived from Mr. Kift in a manner that violated his Charter rights, pursuant to Section 24(2). This evidence included a letter written by Mr. Kift to his wife while he was in custody, a statement given by Mr. Kift to his parole officer, a videotaped confession and one gun which Mr. Kift identified during his confession. In addition, I found a sentencing remission to be a just and appropriate remedy in this case and I invited submissions from counsel on the appropriate sentencing remission.

Detention and Parole Revocation

[7] On March 21, 2013 Correctional Services Canada revoked Mr. Kift's parole. His parole statutory release date was recalculated to September 1, 2013 and his warrant expiry date was set at November 28, 2013. Mr. Kift was initially detained at Quinte Regional Detention Center and then transferred, with the Crown's consent, to federal detention at Joyceville Penitentiary. He remained in federal custody until his warrant expiry date. Since November 28, 2013 Mr. Kift has been detained at Quinte Regional Detention Center.

Duplicitous Counts

[8] Mr. Kift's sentencing hearing began on November 4, 2014. At that time, Crown counsel, Mr. Layefsky, submitted that certain offences should be stayed as duplicitous on the basis of the principles in R. v Kienapple. I agree. Counts 34, 35, and 36, which are the Section 91(1) convictions for unlicensed possession of non-restricted, restricted and prohibited firearms, are stayed.

Crown's Position on Sentence

[9] The Crown's position is that Mr. Kift should receive a global sentence of 7 to 8 years, less pretrial custody. The Crown submits that a sentence in this range takes into account the mitigating and aggravating factors in this case, and the sentencing principles of proportionality and totality.

[10] The Crown argues that any sentencing remission granted by the Court should be minimal, measured only in days or a few months, since the delay in charging Mr. Kift and bringing him before a Justice of the Peace caused minimal prejudice to Mr. Kift. Mr. Kift would have been held in custody based on his status as a parole violator, even if he had been taken for a bail hearing within 24 hours.

Defence Position on Sentence

[11] Mr. Johnston submits, on behalf of Mr. Kift, that the appropriate sentence is a conditional sentence, followed by probation for one year, after taking into account Mr. Kift's pretrial custody. He argues that the Court should grant Mr. Kift a significant sentencing remission given the seriousness of the Section 9 breach and the Court's finding that this breach amounted to an abuse of process.

Seriousness of the Offences

[12] Mr. Kift's offences are serious. While he was on parole for gun trafficking offences, and subject to a prohibition order, Mr. Kift concealed an arsenal of guns, ammunition and explosives in his home, where he lived with his wife, and where his two adult daughters and grandson have visited. According to Mr. Kift most of the weapons found in his home were "missed" by the police during their search of his residence in 2003. If this is true, Mr. Kift was in continuous breach of Court imposed prohibition conditions for ten years. The evidence at trial established that Mr. Kift continued to acquire firearms and ammunition, and created additional hidden compartments for his weapons following his release on parole in 2010. Among the firearms in Mr. Kift's possession there were multiple prohibited firearms including 5 Sten sub-machine guns, a fully automatic AK47, a Russian sub-machine gun, and several handguns. All of these guns were fully operational and with readily accessible ammunition. Guns and explosives were found hidden behind false closet walls in two of the bedrooms of Mr. Kift's home. Police found over 10,000 rounds of ammunition and explosives in an upstairs bedroom. Among the explosives were grenades, detonators and black powder. Many of the guns hidden in bedrooms and behind false closet walls were not secured safely. A fully operational antique Webley handgun was found hidden under a nightstand beside the bed in the master bedroom. The serial numbers had been removed from several guns.

Aggravating Factors

[13] The aggravating factors in this case are clear. This is Mr. Kift's second set of convictions for firearms offences. He was on parole and subject to parole conditions and a prohibition order when he was found to be in possession of an arsenal of firearms, weapons and ammunition. Mr. Kift's defiance of the terms of his prohibition order and parole was long-standing and deliberate. Although there is no evidence to suggest that Mr. Kift ever brought any of the items out into the community, the sheer number of dangerous guns, prohibited devices, weapons, ammunition and explosives, found in Mr. Kift's residence, many unsafely stored, is also an aggravating factor.

Defence Arguments on Mitigating Factors

[14] Mr. Johnston argues that Mr. Kift's past contribution to society as an RCMP officer, his strong family and community supports, and his mental health issues, including depressions and Post Traumatic Stress Disorder, are mitigating factors on sentence. Mr. Johnston also urges the Court to see Mr. Kift as just a harmless "collector" who used "poor judgement" by failing to tell the police about the "missed" guns in his residence. He argues that Mr. Kift does not pose any danger to the community.

Pre-Sentence and Psychiatric Reports

[15] A pre-sentence report was prepared for this sentencing hearing. The Crown filed the pre-sentence report from the 2008 sentencing hearing, and the transcripts of both the reasons for judgement and the reasons for sentence relating to Mr. Kift's first set of gun convictions.

[16] Defence counsel arranged a psychiatric evaluation of Mr. Kift and the psychiatric report of Dr. Julian Gojer, dated October 16, 2014, was filed as a defence exhibit on sentencing with the consent of the Crown.

[17] Dr. Gojer's diagnosis is that Mr. Kift continues to suffer from chronic Post Traumatic Stress Disorder, a chronic major depressive disorder, and a hoarding disorder. He concludes in his report that Mr. Kift poses a low risk of harm to the community and that "Mr. Kift's offending appears to be driven more by an obsession for guns and a compulsive need to collect them and related paraphernalia. His Post-Traumatic Stress symptoms perpetuated this collecting behavior and contributed to poor judgement resulting in him breaking the law".

Credibility Issues with Psychiatric Report

[18] Unfortunately, Mr. Kift minimized his criminal culpability and provided misleading and inaccurate information to Dr. Gojer. In the face of strong evidence and the findings of this Court to the contrary, Mr. Kift told Dr. Gojer that his entire arsenal had been in his possession since 2003 and that the police just "missed" all of these items during their first search. He also minimized his culpability in the first offences. Dr. Gojer's opinion that "that Mr. Kift poses a low risk to the community" must be given little weight since his opinion is based, at least in part, on misleading and inaccurate information provided by Mr. Kift.

[19] Mr. Kift even tried to shift some of the blame to his father who died of cancer in 2008. Dr. Gojer writes: "He said when he was arrested in 2003, the police did not find several guns that were registered to him that were hidden. He had the guns hidden behind walls in closets and had left some weapons with his father. While he was in custody, his father brought some of the guns back and placed them in a safe in Mr. Kift's house prior to his release. After his release on parole, he was aware that his licence was suspended and that he should not have had any weapons with him. He felt that if he returned the weapons, he would be charged again. He felt that he could not trust the police".

Evidence of Continued Acquisition of Firearms

[20] The evidence at trial clearly established that Mr. Kift continued to acquire firearms after he was released on full parole. Several of the guns seized from Mr. Kift had to have been acquired after 2003. Police were able to trace one semi-automatic, non-restricted firearm as having been imported into Canada in 2010 and used in a suicide. That same gun was in police custody until August 28, 2012 when it was returned to its owner, who then sold the gun to a Mr. Fransky. Mr. Fransky was too ill to testify at trial but his statement to police was admitted as evidence. Mr. Fransky says he sold or traded the firearm to Mr. Kift after August 28, 2012. Mr. Fransky said in his statement to police that he sold five guns to Mr. Kift and that Mr. Kift told him he "was free of all charges" and could legally purchase and possess guns. Mr. Fransky said he believed Mr. Kift because Mr. Kift was an ex–RCMP officer. Mr. Kift did tell Dr. Gojer a story about a sick friend giving him three guns as a gift and this may be a very "white washed" reference to his gun transaction with Mr. Fransky. Three other guns in Mr. Kift's possession were traced by police and found to have been sold to an associate of Mr. Kift, a man named John Blackwell, in April and December 2012.

[21] There was also evidence at trial that Mr. Kift created additional hidden compartments for his firearms and ammunition after his arrest in 2003. A comparison of police photos of a bedroom closet taken during the 2003 search and again during the 2013 search, demonstrates that a hidden compartment in a bedroom closet, which was found to contain numerous firearms during the search in 2013, had not been built in 2003. There was further evidence at trial that Mr. Kift stored ammunition in gas canisters and placed these canisters behind a false wall in a bedroom, after he was released on full parole in 2010. Police found multiple gas canisters filled with ammunition. Some of these gas canisters were date stamped after 2009. One gas canister date stamped in 2010 was filled with 23 caliber ammunition used in AR15 rifles which were seized.

[22] Mr. Kift told Dr. Gojer that he had lost all of his gun licences for 10 years, but this was a lie too. The Section 109 prohibition order imposed following his first set of gun convictions in 2008 prohibited him from possessing non-restricted firearms for 10 years, but the prohibition against possessing restricted and prohibited firearms, weapons and ammunition is a lifetime prohibition.

Lies to Pre-Sentence Report Author

[23] Mr. Kift also lied to Julie McLean, the author of the pre-sentence report. He told her that the current charges relate only to guns and weapons that the police did not find when they searched his residence in 2003. Ms. McLean writes in her report: "When asked how he felt about the offences, the subject acknowledged having firearms but indicated the police did not find them during their search from the previous offences in 2003, therefore he just left them and thought he could use them again after 10 years when he got his licence back. He indicated he could not afford a lawyer to turn them in."

Prior Gun Trafficking Convictions

[24] Dr. Gojer also relied on Mr. Kift for information about Mr. Kift's previous gun convictions. Dr. Gojer had a transcript of the Reasons for Sentence of Justice Rivard, dated January 28, 2008, but he did not have a transcript of Justice Rivard's Reasons for Judgement which detailed the findings of fact upon which Mr. Kift was convicted.

[25] Mr. Kift told Dr. Gojer that he met a man named Yanover at a gun show and they became friends. Mr. Yanover was approached by undercover officers and began selling deactivated guns to them. Mr. Kift says he talked to Mr. Yanover about buying and deactivating or reactivating guns. Mr. Kift told Dr. Gojer that he was not aware that Mr. Yanover had a prior criminal record and was not allowed to possess guns. Mr. Kift admitted to Dr. Gojer that he gave Mr. Yanover deactivated guns and on one occasion he delivered two guns to Mr. Yanover that had not been deactivated and he knew this was illegal. Mr. Kift admitted to Dr. Gojer that he "used poor judgement and believed that he could trust Mr. Yanover".

[26] In his Reasons for Judgement Justice Rivard details the evidence against Mr. Kift and his findings of fact that Mr. Kift was part of a sophisticated scheme to traffic in handguns. Mr. Kift knew about Mr. Yanover's criminal past, shared a "keen interest in handguns" with Charles Yanover and played a significant role by purchasing and transferring handguns to Charles Yanover, after removing the serial numbers. The transferred guns were not deactivated.

[27] Mr. Kift was convicted of 9 charges relating to firearms trafficking involving mainly handguns and including: illegally transferring firearms; possessing handguns at a place he was not entitled to possess them; removing serial numbers from a firearm; possession of a firearm having its serial number defaced; transferring a firearm knowing he was not authorized to do so; having possession of a firearm for the purpose of transferring it knowing he was not authorized to do so; possession of a firearm for the purpose of trafficking; possession of a Sten machine gun, a prohibited firearm together with ammunition capable of being discharged; and possession of an over-capacity cartridge magazine, a prohibited device.

[28] Justice Rivard found that "the evidence satisfied me, beyond a reasonable doubt, that there was an agreement between David Kift and Charles Yanover to acquire restricted firearms in the name of David Kift and to then transfer those firearms to Charles Yanover". Intercepted telephone calls and police surveillance of David Kift, Charles Yanover, and several other individuals established that David Kift was well aware of Charles Yanover's criminal record and knew of Mr. Yanover's past involvement with organized crime. In some of these intercepted phone calls David Kift and Charles Yanover discussed the purchase of specific handguns identified by Mr. Yanover. Mr. Kift had a licence which authorized him to purchase restricted firearms. Mr. Kift knew that Mr. Yanover was not licenced to possess firearms. Mr. Kift purchased firearms, including handguns, and reported his purchases to the Canadian Firearms Center. He obtained authorizations to transport these firearms from the point of purchase to his residence. Instead, Mr. Kift removed the serial numbers from the guns and delivered them to Mr. Yanover. After delivering the guns to Mr. Yanover, Mr. Kift filed a Notice of Deactivation with the Canadian Firearms Registry, which meant that the firearm no longer required registration. When these guns were recovered by the police, the serial number from the guns had been drilled out, but they were not deactivated. Mr. Kift then delivered the guns to Mr. Yanover. The same guns originally purchased by Mr. Kift were found just days later in the possession of third parties who had no legal right to possess these guns.

[29] In sentencing Mr. Kift to five years, Justice Rivard took into account the same mitigating factors Mr. Kift relies on at this sentencing hearing, including Mr. Kift's strong family and community supports, his history of depression and Post Traumatic Stress Disorder and Mr. Kift's story that he was only guilty by association with Mr. Yanover and was "too trusting": "Mr. Kift states that he was conned by Mr. Charles Yanover. The fact is Mr. Kift knew better than to engage in criminal activity with Yanover yet he used his knowledge of firearms, his knowledge of the legislation controlling the possession of firearms to assist Charles Yanover to traffic in them. Mr. Kift did this with complete disregard for the fact that some of these firearms would end up in the hands of criminals".

Correctional Service Records

[30] Correctional Service Canada records, including psychological activity notes created during Mr. Kift's time in custody and on parole, were also filed by the defence. These records reveal that Mr. Kift was offered but declined supportive psychological services while he was incarcerated. When Mr. Kift was approved for day parole in December 2009 he was presenting as mentally stable. Mr. Kift was telling his parole officer and psychologist that he no longer required regular psychotherapy or psychopharmalogical treatment and he was not expressing any concerns with respect to his mental health, depression or PTSD. In her report dated May 4, 2010 Mr. Kift's parole officer, Liz Chamberlain, recommended Mr. Kift for full parole and described Mr. Kift in glowing terms: "Mr. Kift …presents as a thoughtful, humorous, reflective and strong minded individual. His tenacious approach to life will serve him well regarding his future plans. He is cognizant of the seriousness of his index offence. At times his involvement in criminal activity appears surreal for him but he accepts full responsibility for his actions. He struggles to make sense of how he spent two decades serving and protecting the public, only to end in such a dark place. In many respects, he is embarrassed and ashamed of his behaviour and for the many years of turmoil that his family had to endure. However, he chooses to fight for a more productive tomorrow and is committed to living a crime free lifestyle".

[31] Mr. Kift was granted full parole in July 2010. While he was on parole and until Mr. Kift was arrested, Mr. Kift was assessed as being compliant with his correctional plan, having positive contacts in the community and strong family support.

[32] Mr. Kift's federal parole officer, Mr. Frank Woo, reported that "everything seemed fine" with Mr. Kift until his arrest when it was discovered that Mr. Kift, "had lied and concealed information" while serving his federal parole. Mr. Woo does not recommend community supervision for Mr. Kift.

Mental Health History

[33] Defence counsel also filed medical records and psychological reports, including doctor's letters and consultation notes relating to Mr. Kift's mental health while Mr. Kift was still an RCMP officer. These records confirm that Mr. Kift was diagnosed with depression and Post Traumatic Stress Disorder following the death of his partner, who was hit by an impaired driver while the two of them were investigating a roadside collision. Two years before his partner died, Mr. Kift was charged with assaulting a driver he was investigating. Mr. Kift was found not guilty of that offence. The RCMP refused his transfer requests and he was ultimately discharged on a disability pension. Mr. Kift tried to sue the RCMP and lost. A report prepared by Dr. Michael Byrnes, who conducted an independent medical examination of Mr. Kift for Great West Life Assurance Company on November 17, 1997, describes Mr. Kift as "exceptionally angry and bitter, expressing most of his feelings towards the RCMP which he thinks has let him down. He is also angry at the courts and society generally and the fate that has been dealt him by life."

[34] Mr. Kift wrote a book titled "The Naked Mountie" in which he is critical of the RCMP. He told Dr. Gojer that he feels he has been targeted by the police since his book was published.

Former RCMP Career Not a Mitigating Factor

[35] Mr. Kift asks the Court to consider his past career as an RCMP officer as a mitigating factor on sentence but he used his knowledge of guns and the gun registry regulations gained during his career as a police officer to traffic in handguns. As a former RCMP officer Mr. Kift also knows how important it is that the names of confidential informants be protected. Yet, after his arrest for these offences, Mr. Kift wrote a letter to one of the investigating officers, Sergeant Taylor of the Durham Regional Police, threatening to expose the person he believes was the confidential informant in this case. The letter is dated June 24, 2013. In the letter Mr. Kift threatens to subpoena the person for trial and writes: "The question I have is how much do you want to protect Mr…….. as an OPP and DRPS informant? You know where to find me if you wish to discuss this matter or you can contact my lawyer Mr. Michael Johnston…" The tone of this letter is sinister and threatening. It is outrageous that Mr. Kift would write such a letter to an investigating officer while he was sitting in jail and awaiting trial on such serious charges. It is clear that Mr. Kift's policing career is no longer relevant in an assessment of his character, or as a mitigating factor on sentence.

Sentencing Principles and Case Law

[36] Section 95 is punishable by a maximum sentence of 10 years when the Crown proceeds by indictment. In 2008 Parliament increased minimum sentences to three years for a first offence and five years for a subsequent offence. The Ontario Court of Appeal has recently struck down the Section 95 mandatory minimum sentences as unconstitutional and in breach of Section 12 of the Charter, based on a "gross disproportionality analysis": R. v Nur, 2013 ONCA 677; R v Charles, 2013 ONCA 681.

[37] Section 95 "seeks to protect the public by criminalizing the possession of potentially dangerous firearms in circumstances that increase the danger posed to the public by the possession of those firearms." The purpose of Section 95 is to prevent future tragedies by punishing people who illegally possess dangerous guns and weapons: see R. v Nur, 2013 ONCA 677.

[38] The Crown submits that Mr. Kift's criminal conduct falls at the "true crime" end of the Section 95 spectrum described by the Court of Appeal in R v Nur and I agree. Although Mr. Kift's conduct with respect to these offences did not cause any actual harm, Mr. Kift's persistent and ongoing possession and accumulation of guns, weapons and ammunition in defiant breach of a prohibition order, is conduct that did pose a serious and immediate risk, not only to members of his family but to his neighbours and the community. Mr. Kift's bitterness towards the RCMP, the police, and the court system also raises concerns about how dangerous these firearms and weapons were while in Mr. Kift's possession, especially when taken into consideration along with Mr. Kift's mental health issues.

[39] Mr. Kift trafficked in handguns. He participated in a sophisticated scheme in which he purchased and registered handguns and then transferred them to a man he knew had a criminal past and organized crime connections. He did this for money and with little regard for where the handguns ended up or what they were used for. Mr. Kift was buying guns again. He was in possession of prohibited and restricted firearms – the types of firearms that criminals want. Mr. Kift admitted to Dr. Gojer that he was showing his guns to "a friend of a friend". Mr. Kift had guns with serial numbers drilled out. Although there was no evidence of gun trafficking this time there was certainly a risk that Mr. Kift may have tried to sell some of his guns, including his handguns, as he has done in the past.

Sentencing Precedents

[40] In support of his submission that the appropriate range of sentence for Mr. Kift is a global sentence of between seven and eight years, the Crown relied on a number of OCA and Superior Court decisions dealing with sentencing for subsequent gun offences and breach of prohibition orders decided before, during and after the Section 95 mandatory minimum sentencing regime, including R. v Charles 2013 ONCA 681 (one loaded handgun and ammunition - nine years); R. v Chambers 2013 ONCA 680 (one loaded handgun - eight years); R. v Delchev [2014] O.J. No 2749 (dated record – first gun offences- drugs and "arsenal of weapons" – 42 months); R. v Hector 2014 ONSC 1970 (one gun and drugs - on 3 prohibition orders - 6 years); R. v Carrol 2014 ONSC 2063 (one gun, on 3 prohibition orders and 2 probation orders – 6 years); R. v Brown 2010 ONCA 745 (one gun – on prohibition order); R v Lambert [2011] ONSC 3096 (multiple guns and drugs – on prohibition order – 13 years); R. v Andall [2011] O.J. No. 3523 (multiple guns and drugs - 6 years); R. v Reid [2013] ONSC 2342 (multiple firearms and on prohibition orders - 11 years); R. v Ferrigon (one gun – on prohibition order – 6 ½ years).

[41] The Crown provided the Court with the transcript of one unreported decision, involving an offender who also concealed an arsenal in his home but the circumstances of that offender were different. In R. v Feldhoff, decided by Justice Krelove in the Ontario Court of Justice on June 19, 2014, the offender was a 78 year old first time offender described as a "survivalist", who built a bunker in his backyard and hid 26 firearms, 11,000 rounds of ammunition, weapons and explosives in his home to defend his family from attack. Mr. Feldhoff suffered from significant psychiatric issues and believed that a third world war was imminent. Many of the firearms were unregistered and stored dangerously around his home. Justice Krelove noted the sentencing objectives of denunciation, deterrence, and protection of the public and imposed a global sentence of 4 ½ years.

Mental Health and Culpability

[42] Mr. Johnston argues that Mr. Kift's moral culpability is reduced because he suffers from Post Traumatic Stress Disorder. Mr. Johnston relies on the case of R. v Adamo [2013] M.J. No 302, a decision of the Manitoba Court of Queen's Bench. However, the offender in that case was found to be suffering from a severe brain injury which caused him to suffer significant intellectual impairment. There is no evidence that Mr. Kift suffers from any intellectual impairment or psychosis.

Conditional Sentence Not Available

[43] Mr. Johnston submits that an appropriate sentence for Mr. Kift would be in the 4 year range based on his review of the sentencing case law, but asks the Court to impose a sentence of less than two years, to be served as a conditional sentence, after granting a significant sentencing remission and taking into account Mr. Kift's pretrial custody. A conditional sentence is not available for offences punishable by a minimum term of imprisonment, which includes the Section 92 and 86(2) offences gun offences that Mr. Kift has been convicted of.

Distinguishing R. v. Donnelly

[44] During additional sentencing submissions made today Mr. Johnston referred the court to the recent Ontario Superior Court decision R. v Donnelly, a child pornography case, released November 6, 2014. In that case Justice Nordheimer found that the accused's Section 7 and 9 charter rights had been breached because the accused had been denied a bail hearing and abused while in custody. Justice Nordheimer did not grant a stay but determined, as I did in this case, that the "conduct of the state actors' could be taken into account at the time of sentencing. Justice Nordheimer found that the appropriate sentence for Mr. Donnelly was a sentence of less than two years since Mr. Donnelly was a young, first time offender, who was found to be suicidal. Justice Nordheimer also found that imprisonment would impede Mr. Donnelly's rehabilitation and place him at serious risk of self harm, and that Mr. Donnelly did not need specific deterrence. This finding meant that a conditional sentence could be imposed if not for the mandatory minimum sentence required by Section 173.1 (2) (a). Justice Nordheimer concluded that an effective remedy under Section 24(1) was to override the mandatory minimum term of imprisonment and instead impose a sentence that would permit Mr. Donnelly to serve his sentence in the community. R. v Donnelly is distinguishable in many respects from this case. Mr. Kift is a repeat offender. The principles of deterrence, denunciation and protection of the public are paramount in this case. In the circumstances of this case, and this offender, a sentence of less than two years would be an unfit sentence.

Sentencing Objectives

[45] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with other crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of six stated objectives. These objectives include the denunciation of unlawful conduct, deterrence of the offender and others, separation of the offender from society where necessary, rehabilitation, reparation of harm done to the victims or the community, and the promotion of a sense of responsibility in the offender.

[46] When dealing with offences involving firearms and weapons, the primary focus of sentencing is on denunciation, deterrence, and the protection of the public. R. v Nur, 2013 ONCA 677; R. v Smickle, 2014 ONCA 258.

[47] These sentencing objectives must be given even greater weight when sentencing a repeat offender like Mr. Kift, who has already been convicted of serious gun offences and has breached a prohibition order: see R. v Jones [2005] O.J. No. 2662. Mr. Kift has already received the benefit of a rehabilitative sentence, including programs offered to him while he was in custody and his approval for early parole. It is clear that a prohibition order will not protect society from Mr. Kift.

Breach of Prohibition Order

[48] Mr. Kift was convicted of 8 counts of breaching a prohibition order by possessing restricted, non-restricted, and prohibited firearms, prohibited devices, ammunition, explosives and cross-bows pursuant to Section 117.01(1) of the Criminal Code. The prohibition order imposed on Mr. Kift at his sentencing hearing in 2008 prohibited him from possessing non restricted firearms for 10 years and prohibited him from possessing prohibited and restricted firearms, weapons and ammunition for life.

[49] Sentences for breach of prohibition orders should be consecutive to sentences for the principal firearms offences. Making the sentence concurrent would render the offence of violating the prohibition order superfluous: see R. v Ferrigon; R. v Carrol 2014 ONSC 2063; R. v Manning [2007] O.J.No. 1205; R. v Baker [2014] O.J. No 1410.

[50] "The primary purpose of a prohibition order is the protection of the public. Parliament, in providing for prohibition orders, recognized that the community is placed at danger by the unlawful possession of firearms. The very presence of guns in the community poses a risk that they may somehow come to be used. The mere possession of guns by persons who have already committed crimes that provide the basis for the prohibition orders constitutes a great danger to the community": see R. v Jones [2005] O.J. No 2662 per Juriansz J.A.

[51] Although there was no evidence that Mr. Kift has continued to traffic in guns, and no evidence that any of the guns, weapons or ammunition seized were every brought by Mr. Kift out in to the community, the guns and weapons seized by the police posed a danger to the public in Mr. Kift's hands. During the trial the Court heard that Mr. Kift had reported a break-in at his residence in 2011. There was a real danger that Mr. Kift's guns and weapons could have ended up in the hands of other criminals through theft or in the event that Mr. Kift decided again to sell or transfer guns. Mr. Kift's continued possession of guns was also dangerous to his immediate family and friends who were in close proximity to concealed guns, weapons and explosives, many of which were unsafely stored.

Unique Circumstances

[52] The circumstances of the offender and the circumstances of the offence in this case are unique. Mr. Kift is a former police officer who has already served a penitentiary sentence for gun trafficking and has now been convicted of possessing an arsenal of guns, weaponry and explosives. Most of the cases relied on by the Crown deal with an offender found in possession of a single handgun, in the community or in a private residence, while on a prohibition order or multiple prohibition orders. The cases relied on by Mr. Johnston also involve offenders whose circumstances are very different from Mr. Kift's circumstances.

Lack of Remorse

[53] When given an opportunity to speak at the sentencing hearing, Mr. Kift tearfully complained about his poor physical health and the conditions of his detention since his arrest in March 2013. He did not express remorse. He did not apologize to his wife, who he says knew nothing about the guns, weapons and explosives hidden in her home. He did not acknowledge the grief and financial stress he has caused his family or the trauma his wife must have experienced when she was arrested at gun point and taken into custody.

[54] It is clear from reading the pre-sentence report and Dr. Gojer's report and from Mr. Kift's comments during the sentencing hearing that Mr. Kift sees himself as the victim of an overzealous police investigation. He continues to minimize his criminal culpability, both in relation to his previous convictions for gun trafficking and the current firearms and weapons possession offences. He has convinced his friends and family that his obsession with guns, and his ongoing possession and acquisition of guns, weapons and ammunition, while on parole for serious gun offences, was somehow benign and harmless. Mr. Kift continues to have the support of his family and friends. One of his friends wrote a similar letter of support for his first set of charges. Mr. Kift has been married for 35 years and has two adult daughters and a fourteen year old grandson. His wife still stands by him. His friends still see him as honest and trustworthy. They see him as a "collector" who has an obsession with guns, and has used "poor judgement" but is not a danger to them or to the community.

Court's Assessment

[55] I disagree. Mr. Kift knew what he was doing. His defiance of court orders, parole conditions, and a weapons prohibition order was deliberate and long standing and dangerous. He has remained undeterred and ungovernable, even after receiving a five year sentence as a former police officer who was subject to all of the protective custody restrictions that create a harsher penal environment. Mr. Kift was given the opportunity to rehabilitate himself. He was offered programs while in custody and he turned them down. He lied to his caseworkers and his parole officers, just as he has lied to Dr. Gojer, and the author of the pre-sentence report ordered by this Court. He was not rehabilitated during his previous sentence and parole.

[56] Taking into account the mitigating and aggravating factors discussed above, including the seriousness of the current offences, Mr. Kift's past conviction for trafficking in prohibited weapons, Mr. Kift's high degree of responsibility, and his obvious unwillingness to be governed by court orders imposed to protect the community, a lengthy penitentiary term is necessary to protect the public.

[57] In my view the Crown's position on sentence does take into account the mitigating factors, including Mr. Kift's poor physical health, his strong family and community supports, and the fact that there is no evidence in this case that any firearms or weapons were taken into the community or sold to other criminals. Absent these mitigating factors a sentence in the range of 10 years would be appropriate. The breach of prohibition offences alone could attract a four or five year consecutive sentence.

Sentence Imposed

[58] I have concluded therefore, that Mr. Kift should receive a global sentence of eight years, less pretrial custody.

Sentencing Remission

[59] I must now consider the appropriate constitutional sentence remission. The police deliberately failed to comply with Section 503 of the Criminal Code. They did this to suit their investigative purposes. They decided that Mr. Kift's status as a parole violator somehow exempted him from the statutory regime which requires a charged person to be brought for a bail hearing within 24 hours. Mr. Kift was detained for 15 days as a parole violator before he even knew what criminal charges he was facing. Mr. Kift's greater jeopardy was not the postponement of his statutory release date, it was the potential sentence he faced upon conviction for new gun offences while on parole for similar offences. Until he was formally charged he could not obtain meaningful legal advice.

[60] Mr. Kift would have been detained in any event but during the 15 days that he waited to be charged, but he should have been under the jurisdiction and control of the Court. Section 503 creates a mandatory scheme for ensuring that an accused person is taken before a judicial officer. There is nothing in the language of Section 503 or in the case law, to suggest that the police have discretion about whether to comply with this section in cases where the accused is a parolee.

[61] Taking into account all of these circumstances and my findings of fact, detailed in my Reasons for Judgement released on July 22, 2014, I have concluded that a sentencing remission of 3 months is an appropriate remedy to address the prejudice suffered by Mr. Kift during the 15 days he was held without bail, and the police failure to comply with Section 503 of the Criminal Code.

Pre-Trial Custody Credit

[62] Mr. Johnston and Mr. Layefsky agree that Mr. Kift should receive credit for pretrial custody from his statutory release date of September 1, 2013. They agree that the 89 days between September 1, 2013 and his warrant expiry date of November 28, 2013 should be calculated on a 1:1 basis; and his time in custody since November 28, 2013 should be calculated on a 1.5:1 basis (1.5 x 357 = 535 days) for total pretrial custody of 624 days.

Sentencing Order

[63] For the above reasons I sentence Mr. Kift to a global sentence of 7 years 9 months, before pre-trial custody, resulting in a global sentence of 6 years, as follows:

(a) Possession of prohibited or restricted firearms with readily accessible ammunition 20 counts: 4 years on the first count after taking into account the pre trial custody of 624 days, and 4 years concurrent on all other Section 95(b) counts;

(b) Possession of firearms and weapons contrary to a prohibition order 8 counts: 2 years consecutive on the first count and 2 years concurrent on all other Section 117.01 counts;

(c) Unsafe storage of a firearm 20 counts: 4 years concurrent on each Section 86(2) count;

(d) Possession of a firearm knowing that the serial number had been removed 2 counts: 2 years concurrent on each Section 108(i)(b) count;

(e) Unauthorized possession of a weapon 2 counts: 2 years concurrent on each Section 91(2) count; and

(f) Unauthorized possession of a prohibited weapon 5 counts: 3 years concurrent on each Section 92(2) count.

Forfeiture Orders

[64] There will be a forfeiture order with respect to all weapons, ammunition and explosives seized - all items on the exhibit register, except the computers (items 35-37 on the exhibit register), the mortgage documents (item 39), item 108, which was found not to be a taser, and bows not cross bows (items 147-149). This forfeiture order includes the Flobert parlour pistol, which was excluded as evidence at trial. This firearm was never registered in Canada and it is a prohibited weapon. Mr. Kift cannot possess it. The forfeiture order also includes the Webley antique firearm found under the nightstand in the master bedroom.

[65] The forfeiture order also includes of all the machinery seized from the garage, including the CNC Machine (item 44), the metal lathe (item 45), the Green Ban saw (item 41), the bench grinder (item 42) and the drill press (item 43). I find on a balance of probabilities that these machines constitute offence related property based on the numerous firearm parts located in the garage in close proximity to these machines and the evidence at trial about the homemade silencers seized; serial numbers removed from handguns, homemade zip guns, the existence of the numerous firearms parts in the garage, guns found to be 80% complete and easily activated with the addition of firearms parts also seized. I also take into account Mr. Fransky's statement to police that Mr. Kift told him he had a lathe and could make gun parts for Mr. Fransky.

[66] Mr. Johnston objects to the forfeiture of the firearms listed as items 95 and 96 in the exhibit register because these items were not test fired. The crown's evidence was that the firearms could not be test fired because the police were unable to find suitable ammunition. I am satisfied based on the description of these items that these items were barrelled weapons with triggers capable of being fired and that they are weapons and subject to my forfeiture order.

[67] The City of Peterborough Police Badges seized and the Toronto Police Badges seized shall be forfeited to the Crown and returned to their rightful owners.

[68] These forfeiture orders apply to any items Mr. Kift has attempted to transfer or release to third parties, including Mr. Johnston. As the Crown pointed out today Section 115 of the Criminal Code provides that "unless a prohibition order against a person specified otherwise, everything the possession of which is prohibited by the order….and that is in the possession of the person is forfeited to Her Majesty."

[69] A bail/property assignment to Mr. Johnston from Mr. Kift, sworn August 20, 2014, was filed by the Crown and lists all of the guns, ammunition and machines seized by the police. The attempted transfer of these items to Mr. Johnston is void and of no effect. Mr. Kift is prohibited from possessing any guns or weapons and therefore he is unable to legally transfer firearms in accordance with the Firearms Act. More generally, Mr. Kift cannot legally transfer or release his interest in any property he has no right to own or possess.

Prohibition Order

[70] There will be a lifetime prohibition ordered on restricted and non-restricted and prohibited weapons pursuant to Section 109 of the Criminal Code.

Released: November 21, 2014

Signed: Justice E. Deluzio