Court Information

Ontario Court of Justice

Date: May 9, 2014

Between:

Her Majesty the Queen

— AND —

Tristin Jones / Jermaine Smith / Jafari Waldron

Before: Justice J. V. Loignon

Decision on Sentence Released: May 9, 2014

Counsel

Mr. J. Neubauer — Counsel for the Crown

Ms. D. Hayton — Counsel for the Federal Crown

Mr. P. McCann — For the defendant Tristin Jones

Mr. K. Kilongozi — For the defendant Jermaine Smith

Mr. R. Carew — For the defendant Jafari Waldron

Decision

Introduction

[1] The offenders were convicted on September 25th, 2013 following a lengthy trial. All three were convicted of various firearms offences. Two of the offenders were convicted of drug and drug-related offences in addition to the firearm offences. On October 2, 2013 bail for Mr. Waldron and Mr. Smith was revoked. Mr. Jones has been held in custody since the date of arrest on March 11th, 2011. Following the bail revocation the matter was adjourned to November 22nd, 2013 to argue sentence. On that date counsel for the offenders sought an adjournment in order to argue the constitutionality of the mandatory minimum sentence found in section 99 of the Criminal Code of Canada. The adjournment was granted and the matter was then put over until March 2014. Several dates were set aside in March and argument ultimately concluded on April 7th, 2014.

[2] In view of the application by the offenders, the framework for considering sentence is as follows:

1. What would be the appropriate sentence for the firearms offences for which the offenders have been found guilty in the absence of the current three year minimum penalty of imprisonment?

2. If the appropriate sentence in the absence of a three year minimum would be less than three years, is section 99(2) constitutional? Specifically, does it amount to cruel and unusual punishment for the offenders? If a Charter breach is made out, can the breach be saved by section 1 of the Canadian Charter of Rights and Freedoms which permits the infringements of Charter rights if they are demonstrably justifiable?

3. Finally, what are the appropriate total sentences when considered with the various drug and other offences?

Circumstances of the Offences Broadly

[3] The investigation known as Project Lancaster ran between January 2009 and March of 2011. The investigation centered on allegations of firearms trafficking as well as various drug offences. Extensive wiretaps were filed as part of the prosecution and revealed coded communications between the offenders as well as various other individuals in relation to the firearm and drug trade. The totality of the evidence provided to the Court lead to the conclusion that the three offenders were engaged in firearms trafficking. The majority of the offences were ones of offering to transfer firearms whereby the offender would act as a go-between, haggling over the price, undertaking to obtain firearms or ammunition in response to a request or simply encouraging the purchase of a firearm. All firearms were either restricted or prohibited.

[4] The firearm enterprise for all three offenders was a commercial one. They were intent on selling firearms for profit and were conscious of their profit margin. All were conscious of the illegality of their undertaking and the need for concealment. As a result, they spoke in code. Particular attention was also placed on a shooting that occurred on December 4th, 2010 in the City of Ottawa. In the days that immediately followed it, there was a flurry of discussions between Smith and Waldron about providing a firearm to a Thomas Jensen. This was done in full knowledge that any firearm was being sought for retribution or protection. In another instance, a buyer wanted to ensure reliability because he had a specific problem and once started, he did not want to have to stop shooting. These men knew that the people to whom they were selling had no authorization to possess and no legitimate legal purpose for the firearms. It is any easy conclusion that all of the firearms were destined for the street, for "protection", intimidation or killing. These firearms offences are all true crime offences.

[5] In addition to the firearms offences, Mr. Jones and Mr. Smith were also convicted of various drug offences including possession for the purpose of trafficking, conspiracy to traffic, simple possession and possession of a prohibited device. The drugs in question were various strains of marijuana. The evidence showed that the Offenders ordered marijuana from a supplier at the ¼ and ½ pound level every few days. At the times of their arrests, Mr. Jones was found in possession of 118 grams while Mr. Smith was found in possession of just over 3000 grams of marijuana.

[6] A more detailed description of the offences can be found in the reasons for decision of September 25, 2013.

The Individual Offences and Background of the Offenders

Mr. Jones

[7] Mr. Jones was found guilty of offering to transfer a firearm, transferring a firearm, conspiracy to traffic in marijuana, possession of marijuana for the purpose of trafficking and possessing the proceeds of crime.

[8] With respect to this offender's involvement in the offences, a large number of the wiretaps involving Mr. Jones concerned the sale of drugs. This having been said, he was still an active participant in the gun trade. Indeed, in at least one of the transactions he insured a sufficient profit margin for the sale. It cannot be said that Jones' involvement was peripheral. In addition, Mr. Jones was convicted of actually transferring a firearm, a more serious offence, it can be argued, than an offer to transfer.

[9] With respect to the drugs, the involvement is significant and over a long period of time. The contact between the parties, including suppliers as well as co-conspirators is regular, organized and reflective of a business arrangement.

[10] Mr. Jones is 38 years old and originally from Barbados. In that country he completed high school and then worked in a factory. He ultimately began a juice business which led him to meet his spouse, Natasha Duckworth. Ultimately, Mr. Jones came to Canada to pursue a relationship with Mrs. Duckworth. Mrs. Duckworth and Mr. Jones have three children and at the time of these offences, he was a stay at home father while she pursued employment with the Federal Public Service. Several letters of support for Mr. Jones were filed in the sentencing proceedings and all indicate his commitment to his family and spirituality. The person described in those letters is quite at odds with the person having been found guilty of his charges.

Mr. Smith

[11] Mr. Smith was convicted of three firearms related offences under s.99(2) as well as conspiracy to traffic in marijuana, possession of marijuana, possession of a restricted weapon (sic prohibited device) and finally possession of marijuana for the purpose of trafficking. The offences for which Mr. Smith has been found guilty cover a broad time frame over the two-year investigation. Again, these offences were not impulsive or crimes of opportunity but rather demonstrated an offender engaged in an ongoing commercial enterprise. Mr. Smith demonstrated his expertise in the gun trade with respect to pricing, desirability and calibre. Particularly troubling in the case of Mr. Smith is his willingness to obtain and sell firearms to people involved in gun crime. Indeed Mr. Smith actively sought out firearms to put them on the streets of Ottawa. Also noteworthy is the involvement in the gun subculture. Certain discussions between Smith and others demonstrated a casual attitude towards firearms akin to an accessory and linked to status. For example, in one of the conversations Mr. Smith described wearing a firearm out to a nightclub. This supports a characterization of Mr. Smith being deeply involved in the firearm subculture.

[12] A pre-sentence report was prepared and filed with respect to Mr. Smith. By all accounts Mr. Smith had a difficult and unstable upbringing. In the pre-sentence report, Mr. Smith is described by a Mr. Baptiste as believing that society owes him something because of his difficult childhood. He has observed that it's time for Mr. Smith to begin making his own way in life and earning a living rather than focussing on illegitimate ways to make money. Mr. Smith has no real employment history other than short-lived employment to fund his purchase of marijuana. Mr. Smith is reported to smoke marijuana but the collateral sources do not indicate that it is a problem for him.

[13] In addition to the pre-sentence report, many letters of support were received by the Court. One witness for Mr. Smith testified to having known him for 15 years. She described him as engaging, sincere and concerned. She also described Mr. Smith as being a good father and caring member of an extended family. She pleaded that Mr. Smith be given a chance at a normal life.

Mr. Waldron

[14] Mr. Waldron was found guilty of 6 counts of offering to transfer a firearm. As with Jones and Smith, Mr. Waldron's involvement was not impulsive or peripheral but direct, over a long period of time and for profit. He was knowledgeable about his products, discussing issues such as magazine capacity, what was prohibited and what was not. He too had specific knowledge that the firearms being sought were destined for illegal activity on the street.

[15] Mr. Waldron is now 29 years old and has no prior criminal record. At the time he was on bail he was registered at Algonquin College and was also working. He has learned a trade in woodworking which allows him to pursue constructive work.

[16] Mr. Waldron wrote a number of letters to the court and in addition a significant number of letters of support were provided. Two witnesses gave evidence in the course of the sentencing proceedings in support of Mr. Waldron. They are Pastor Raymond Grant and Adam Cregan. Both have become involved with Mr. Waldron since the time of the offences. Mr. Cregan knew Mr. Waldron beforehand but their contact was not close until more recently. While testifying of initial skepticism as to the genuineness of the commitment to bible study and a Christian lifestyle, Mr. Cregan, as supported by Pastor Grant, attested to Mr. Waldron's real commitment and sincerity. Mr. Cregan specifically described a house transformed where the offender is now making his family his first priority, working, volunteering with the church and now picking up hobbies. Pastor Grant supported this conclusion and added that throughout his time in custody the offender has taken every Christian faith based course offered by the jail. In addition, he noted that Mr. Waldron was well-liked in the facility and had a positive impact on others within the jail. This indeed forms part of his conclusion that the offender's change is a true, life-change and not simply a ruse for the sake of sentencing.

[17] A pre-sentence report was also obtained for the sentencing proceedings. The offender's upbringing can only be described as dysfunctional and chaotic. He described a childhood of poverty and neglect, lacking in emotional/psychological support and any form of stability. His adult life presented as a continuation of the chaotic lifestyle in which he was raised. He has for most of his adult life lived what his wife described as a "negative lifestyle" involving alcohol, drugs, infidelity and making money through illegal means.

[18] With respect to his family ties, Mr. Waldron is married and has four children. Three of these are with his spouse Nilda Almeida. The children are aged 6, 3 and 1. While the relationship faltered at times for reasons that have been described as drinking, smoking marijuana and unfaithfulness, the relationship now appears to be on a more solid footing. The information concerning drug or alcohol addiction supports a conclusion of a partying lifestyle in Mr. Waldron's early 20's.

[19] During the course of the preparation of the report, Mr. Waldron spoke to the author of having learned from the offences and wishing to turn his life around. In that regard, the following is found within the report:

Despite his not guilty plea the subject did accept responsibility for his actions and did verbalise an expression of remorse. The nature of the charge (weapons related), notwithstanding, there are no indications that violence/aggression are problematic for the subject at home or in the community...He reports a positive change since being placed on bail and becoming involved in the Bible Way Ministries. The subject appears to have embraced the positive, pro-social lifestyle and collaterals confirm this. His wife confirms that he continues to be welcomed in the family home.

[20] I note that this expression of remorse is consistent with the letter written by Mr. Waldron while in jail. I accept it as a genuine expression of remorse.

Positions of the Parties

Mr. Jones

[21] The Provincial Crown suggests that an appropriate disposition is in the six to seven year penitentiary sentence range. With respect to the provincial firearm charges, the Crown points to the following aggravating factors:

• Mr. Jones has been found guilty of multiple firearms related counts;
• this was not an impulsive crime of opportunity rather, this was a commercial enterprise undertaken for-profit over a long period of time; and
• he was also engaged in drug trafficking, an industry where drugs and firearms often run in tandem.

[22] While the Crown recognized that in mitigation the offender has no criminal record and continues to enjoy the support of his family, that is in effect the extent of mitigation. The offender does not have the benefit of an expression of remorse or any insight into the offences which would add to the mitigating factors. The Crown also points to jurisprudence suggesting that general deterrence and denunciation are paramount sentencing principles of concern when dealing with true crime type gun offences which these are.

[23] Mr. McCann for Mr. Jones submitted that absent the mandatory minimum his client would be looking at a jail sentence in the 12 to 24 month range for the gun charges. I will discuss the authorities relied upon by both parties below.

Mr. Smith

[24] The Crown argues for a sentence in the 6 to 7 year range for the firearm offences. In support of this, the Crown points to the following aggravating factors:

• Mr. Smith has been found guilty of multiple firearm counts;
• this was not an impulsive crime of opportunity rather, this was a commercial enterprise undertaken over a long period of time;
• this offender was aware that the firearms were to be used for illicit, dangerous purposes;
• he solicited buyers without regard to the intention of the user; and
• he was also engaged in drug trafficking, an industry where drugs and firearms often run in tandem.

[25] While the Crown recognised that in mitigation the offender has no criminal record and continues to enjoy the support of his family that is in effect the extent of mitigation. The offender does not have the benefit of an expression of remorse or any insight into the offences. In fact, from the pre-sentence report, his attitude can be described as defiant.

[26] Defence counsel argued that the appropriate sentence for Mr. Smith is a suspended sentence or a conditional sentence for the weapons offences and a concurrent sentence for the drug offences. In support of this position, counsel pointed to the absence of a criminal record, the strong support from family and the significance of pursuing a rehabilitative sentence as opposed to emphasizing denunciation and deterrence. Counsel stated that he was authorized by his client to express remorse to the court. In addition, counsel noted that Mr. Smith spent 32 months on bail and was not charged with any breaches but rather seemed to have put his time on bail to good use. No authority whatsoever was provided in support of the position being articulated and I am sure that none exists.

Mr. Waldron

[27] The Crown's position is for a penitentiary term between 6 and 7 years. The basis for the position is the sheer volume of firearm related convictions. Indeed, Mr. Waldron has been convicted of 6 counts of offering to transfer a firearm. By contrast with the others however, Mr. Waldron has no accompanying drug convictions. Counsel for Mr. Waldron argues that the convictions, being of offers to sell, are of a less serious kind than an actual transfer. He further points to the absence of evidence linking this accused to an actual sale or transfer of a firearm. Counsel suggests that an appropriate sentence, absent the mandatory minimum, would be in the 6 to 12 month range. Counsel further argues that the offender should be given enhanced credit for his time in jail given his very positive role model status while incarcerated. Finally, counsel further points to the expression of remorse found within the pre-sentence report.

Review of Sentencing Authorities

[28] Counsel for Mr. Jones relied on R. v. Lewis, [2012] O.C.J. 413, where a sentence of 1 year for an offence under section 99 was imposed. This particular case concerned an individual who offered to sell a firearm to a police officer in order to keep the officer interested in him as a supplier of cocaine. The Court specifically found that the criminal culpability was more directly connected with the sale of cocaine. Mr. Lewis' background by way of criminal record contained a number of Youth Court entries of varying degrees of violence.

[29] In addition, defence also relied on R. v. Neault, [2003] S.J. No. 645. In the case of Mr. Neault, he broke into motor vehicles over the course of two days and stole three firearms, ammunition and other items. Mr. Neault made various inquiries as to who might wish the buy the firearms and ultimately found a buyer. The firearms were sold. Mr. Neault plead guilty to the charges. Mr. Neault was 20 years old, had entered pleas of guilty, and was found to have a minimal criminal record. Indeed, his one adult conviction was a period of probation of 4 months. Three years was imposed on the section 99(2) offence. The Court noted the following aggravating factors in arriving at the decision that the three year minimum was warranted in this particular case: the degree of planning and deliberation; the inability to appreciate the gravity of the firearm offences in particular as well as the commission of the offences for financial gain. The Court noted that while there was hope for rehabilitating Mr. Neault, that principle was not in the forefront. Rather, denunciation was an important factor as were specific and general deterrence to ensure that the offender did not find criminal behaviour appealing or justifiable in response to financial difficulties.

[30] No other authorities were relied upon by defence with respect to the appropriate quantum of sentence.

[31] The Crown filed a casebook and provided a number of authorities that place sentences in the 5 to 8 year range. I do note that in many of the authorities provided the offender had a prior serious criminal record. Of particular interest though, is the case of R. v. Cater, 2012 NSPC 38, of the Nova Scotia Provincial Court. In that case, the Court was dealing with a first time offender. A number of letters were filed in support of Mr. Cater demonstrating a disconnect between the person before the Court, heard on the various intercepts and the individual his supporters believed him to be. A 5-year penitentiary sentence was ultimately imposed. At paragraph 67 of the decision the Court noted:

I had been explicit about the seriousness of the firearms trafficking offences and the degree of Mr. Cater's moral culpability for them. Firearms trafficking represents a level of criminality that casts simple possession of illegal firearms in an amateur role. Criminally inclined members of the community wanting to arm themselves for violence, intimidation or coercion need a Kyle Cater to supply them. He chose to do so. The consequence for his aggressively antisocial choice is a substantial term of incarceration.

[32] I also note R. v. Ivanic, [2011] BCCA 158, a case which involved an offender selling several firearms to an undercover police officer, among other offences. The court concluded that a global sentence of eight years, less 44 months credit for pre-trial custody, was a fit and appropriate sentence. The Court of Appeal upheld that sentence.

Application to the Offenders Before the Court

[33] What would be an appropriate sentence for these offenders concerning the firearms offences if the Criminal Code did not stipulate a mandatory minimum sentence of three years?

[34] At this stage I must bear in mind the fundamental purposes and principles of sentencing as set out by sections 718, 718.1 and 718.2 of the Criminal Code. I must ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. I must take into account any aggravating and mitigating factors. I must furthermore ensure that the sentences meted out are similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Finally, I must also bear in mind the purposes of sentencing including specific and general deterrence, rehabilitation, denunciation and the need to separate the offender from society.

Sentencing Objectives for These Offences

[35] "Denunciation, deterrence and protection of the public come to the forefront when sentencing in relation to firearms offences." (R. v. Hamilton, 2011 ONSC 4813 at para 22) "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." (R. v. Danvers (2006), 1999 CCC (3d) 490 (OCA)) Further commentary to that effect is made in R. v. Cater, supra at par 40 where a wealth of authority is cited. In addition, at paragraph 41, Justice Derrick makes the following apt observations explaining this pre-eminence:

In the context of possession of, and trafficking in, illegal firearms, denunciation operates as a powerful expression of a "symbolic, collective statement" rejecting an offender's conduct. Illegal firearms represent a clear and present danger to our communities and it is instructive to remember that firearms are often indiscriminate. They are as capable of killing or injuring entirely innocent people as they are of causing harm to a person who is embroiled in criminal activity and rivalries. (R. v. Johnston, [2009] N.S.J. No. 349 (S.C.), paragraph 45; R. v. LeBlanc, [2010] N.S.J. No. 490 (S.C.), paragraphs 5 and 7)

[36] Justice Holmes in R. v. Sanghera, 2012 BCSC 901, while sentencing two offenders in relation to firearms possession offences, made various comments that are equally applicable in this context:

28 These offences cut at the very fabric of society. As Canadians, we abhor weapons of self-help, and instead commit our support to government according to democratic principles and the rule of law. These offences are not acts of terrorism, but they strike at the community in the same way. They threaten not only the individuals who might have been targets or innocent bystanders, but also the much broader community whose members should be able to live free of fear that their neighbours on the streets of Vancouver are covertly in possession of loaded semi-automatic pistols.

29 It would be impossible not to have noticed the recent increase in crimes involving firearms which have evidently seeped into the community for use within society's insidious criminal underbelly. Our social institutions -- police, hospitals, courts -- have had to call out scarce resources to address the escalating costs of these crimes. Criminal sentences provide one means by which society can denounce this type of conduct and attempt to deter it.

30 These offences therefore call for sentences that send a very strong message of denunciation and condemnation, and that are sufficiently severe to deter other people from similar conduct. General deterrence is a particularly valuable sentencing objective in relation to offences of this nature, which are typically planned and committed with an eye to the potential risks of detection and prosecution.

[37] Specific deterrence is also pertinent with these offenders. Their offences were calculated, deliberate and for profit. They chose to take the risk of engaging in this enterprise for easy money. They must understand that a heavy price will be paid for conduct that cuts at the fabric of our society. In the same vein, because of the nature of the offences, protection of the public and separation of the offender are also called for.

[38] Rehabilitation is relevant for these Offenders given that they are first-time offenders. They are not beyond hope and in that regard rehabilitation for the long-term is in everyone's best interest: theirs, their families' and the community's. As a result, their sentences must not be so heavy as to be crushing. I note that Mr. Waldron is a particularly good candidate for rehabilitation based on his conduct in jail and the evidence heard by the Court.

[39] Finally, I must also bear in mind the principles of proportionality, restraint and totality. I must ensure that any combined sentences are not unduly long or harsh and that while sufficient punishment is meted out, no more than what is called for is imposed.

Gravity of the Offences

[40] Firearms are dangerous. Handguns are particularly dangerous. Lives are taken or destroyed by firearms. The consequence of their illegal traffic creates a ripple effect of devastation. Transferring a firearm to an individual unauthorized to possess one, where all control over the firearm is lost, including, necessarily, the circumstances in which it will be used is a serious offence. Offering to arm individuals engaged in or proposing to engage in violent firearm activity is an even more serious offence. The creation of an offence that is prosecuted only by indictment is a very strong signal that Parliament has recognized the carnage wrought by these merchants of death and their illegal traffic of firearms in Canadian communities.

Degree of Moral Culpability

[41] The offenders were all intimately involved in all of the offences for which they have been found guilty. All were well aware of the illegality of their activities as is evidenced by their attempts to speak in coded language and to stay below the police radar. Indeed, in one instance Mr. Smith chastises a caller with respect to the language being used to discuss the availability of firearms.

[42] The commercial nature of the enterprise in which all three offenders were engaged is evidenced by their knowledge of pricing, calibre, desire to ensure an acceptable profit-margin and long-term commitment to the enterprise over the two year time span of the investigation. These offenders were not caught up in a single opportunity to make some easy money; rather they took a calculated risk of engaging in this subculture to profit from the sale of illegal firearms. Accordingly, the degree of moral culpability of all three offenders is significant.

Aggravating and Mitigating Circumstances

[43] These have been described above and I find the following common aggravating circumstances:

• all have been found guilty of multiple firearm counts;
• the firearms were all restricted or prohibited handguns;
• this was not an impulsive crime of opportunity rather, this was a commercial enterprise undertaken for-profit over a long period of time.

[44] With respect to Mr. Jones, he has been found guilty of transferring of a prohibited firearm, arguably a more serious offence than an offer to transfer. Mr. Jones was also actively engaged in the drug trade where firearms are prevalent.

[45] With respect to Mr. Smith, this particular offender was involved in the gun subculture and was fully aware that the guns were to be used for illicit, dangerous purposes. In addition, he solicited buyers without regard to the intention of the user. Finally, he was also engaged in drug trafficking, an industry where drugs and firearms often go together.

[46] With respect to Mr. Waldron, he has been found guilty of six offences of offering to transfer a firearm. The sheer volume demonstrates his commitment to this enterprise. In Mr. Waldron's case, he, like Mr. Smith knew that the firearms were to be used for violent, illegal purposes.

[47] With respect to mitigating circumstances I find the following common mitigating factors:

• none have a criminal record; and
• all enjoy the continued support of their respective families.

[48] Concerning Mr. Waldron, I accept as a mitigating factor his expression of remorse for the offences as noted in his pre-sentence report. The detailed letters sent to the court and filed as exhibit 4 and 8 demonstrate self-reflection such that I accept his expression of remorse as sincere. In addition, I accept that since the time of the offences he has turned his life around and now seeks to focus on his family, his future and his faith. I accept that his prospect of rehabilitation is quite good.

[49] I note at the outset that there was not a count by count discussion of the appropriate sentences. Rather, all argued on the basis of a global sentence for the firearm offences, recognizing that for the sake of the principle of totality, the firearm sentences would run concurrently.

Sentencing Decisions

Mr. Jones

[50] Counsel suggested 12-24 months for the 2 firearm offences, relying in part on R. v. Lewis, supra. The circumstances in that case were very different from Mr. Jones' situation notably with respect to moral responsibility. Consequently, I do not find that case at all persuasive. The cases relied upon by the Crown mostly involve recidivists also convicted of possession type offences. Most offenders in those cases though, entered pleas of guilt and therefore received significant mitigation as a result.

[51] I have already stated my views as to the seriousness of the firearms offences and Mr. Jones's moral blame. I do not believe that the sentence suggested by Counsel reflects the true crime nature of the offence or the multiple aggravating factors. While late in the day, I do put some weight on the expression of remorse. Though Mr. Jones' persona before the court and persona within his family is at odds, I do nonetheless believe that he is committed to returning to his family. I do not want to impose a sentence that will crush his prospects of rehabilitation. In considering all of the principles I have set out above, I impose a sentence of 5 years on the firearms offences. I will address the federal charges and credit for pre-trial custody below.

Mr. Smith

[52] Counsel for Mr. Smith suggested probation or a conditional sentence as a fit sentence to focus on rehabilitation. Such a disposition would be incorrect and fly in the face of binding authority where the emphasis must be placed on denunciation and deterrence. Such a disposition in no way reflects the seriousness of the offence or the moral blame of the offender. As with Mr. Jones there are multiple aggravating factors and few mitigating ones. With respect to an expression of remorse, I put little weight on what has been received. Indeed, there have been multiple opportunities for Mr. Smith to stand up and take responsibility which he has failed to do. This is not a significant mitigating factor. Again though, I do accept that the sentence I impose must not be so crushing as to cause Mr. Smith to lose all hope. Having regard to the principles I have already reviewed I believe an appropriate sentence is one of 5 years.

Mr. Waldron

[53] Counsel for Mr. Waldron argues for a 6 month sentence. Again this sentence submission is unrealistic based on the applicable principles of sentencing when firearms are involved. While I accept that in some cases an offer to transfer may not be as serious as an actual transfer the goals here were similar: putting guns on the streets of Ottawa. This is not an offender making half-hearted offers to promote another venture as in Neault, above, this is someone who cultivated clients, built their interest and offered to sell them guns. Aggravating is that Mr. Waldron, in some cases outright knew that the purpose for the firearm was to do violence. In Mr. Waldron's case, the volume of firearms offences would normally place his sentence beyond those of Mr. Jones and Smith. However, in view of his mitigating factors, including his sincere acceptance of responsibility and efforts at rehabilitation I believe an appropriate sentence is one of 5 years.

Conclusion as to Sentence on the Firearms Offences

[54] As is apparent from the foregoing, I conclude that the appropriate sentences for each of the offenders concerning the weapons offences is beyond the mandatory minimum. Because of this conclusion I find that in the case of these offenders there is no breach of section 12 of the Charter.

Reasonable Hypotheticals

[55] Must the Court now consider the mandatory minimum within the context of a reasonable hypothetical? Three attempts at reasonable hypotheticals were made by Counsel for the offenders. The first two were ultimately withdrawn when it was pointed out that the majority of the scenarios did not constitute offences. A third set of hypotheticals was subsequently filed during reply to the Crown's argument on the prior two. Counsel offered no analysis or argument concerning the revised hypotheticals. Furthermore, it was not clear who, amongst the hypothetical parties had committed the offences. Constitutional argument is not to proceed in a vacuum. Given the absence of argument on the final hypotheticals, the result as to my own analysis of the appropriate sentence for these offenders, I decline to engage in any further discussion as to constitutionality. I rely on R. v. Byfield, 2013 ONCA 420, R. v. Faria, [2013] O.J. No. 1102 (OCJ), R. v. Nur, 2011 ONSC 4874 (SCJ), R. v. Neault, [2013] S.J. No. 645, and R. v. Christensen, 2012 BCPC 374, that where the appropriate sentence is beyond the mandatory minimum, then the issue as to the constitutionality of section 99 is irrelevant. (see R. v. Byfield, supra at para 20-21; R. v. Faria, supra at para 73-74; R. v. Nur, supra at para 4) Indeed, I fully adopt the comments in R. v. Christensen, supra at para 40-41 that:

40 [I]t is only where the court concludes that the range of sentence is below the mandatory minimum the consideration for constitutionality of the minimum is relevant, as otherwise the consideration would be a hypothetical abstract without any practical application for the rights of the offender.

41 In Borowski v. Canada (Attorney General) (1989), 1 SCR, Mr. Justice Sopinka for the court discussed the concept of mootness at paragraph 15.

The doctrine of mootness is an aspect of a general policy or practice that the court may decline to decide a case which raises a merely hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects, or may affect, the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced, but at the time the court is called upon to reach a decision. Accordingly, if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.

Federal Offences

Mr. Jones

[56] The Federal Crown argues for a 9 month consecutive sentence. The Federal Crown points to the co-conspirator Meyer having received a 7 month jail sentence with respect to his drug related charges as support for her recommended sentence. Mr. Meyers was Mr. Jones' drug supplier while he himself put it on the street. Noting the same mitigating circumstances as the Provincial Crown, the Federal Crown relied on the following aggravating circumstances:

• the enterprise was organized and over a long period of time;
• there were children living in the house from where the trafficking occurred;
• the level of trafficking is at the mid-to high level; and
• the involvement in the gun-trade.

Mr. Smith

[57] The Federal Crown argued in favour of a 9 month consecutive sentence for the following reasons: mid to high level trafficking, the presence of children in the house and the fact that this was a commercial venture for Mr. Smith. Indeed, she pointed to the pre-sentence report where drug use is acknowledged but is specifically denied as being problematic. Aggravating of course within the drug context are the firearms offences but in addition to this, in Mr. Smith's case, there is also a conviction for a prohibited device, namely a butterfly knife.

[58] Mr. Jones and Mr. Smith have been found guilty of possessing marijuana for the purpose of trafficking amongst other drug offences. The evidence on these counts suggested once again a well-organized and well-established commercial enterprise. This was not an instance of a few grams between friends but rather a well-organized marijuana supply and distribution scheme in which Mr. Jones and Mr. Smith were more than willing participants with their respective collaborators.

[59] The only conclusion is that the degree of moral culpability of all offenders is very high. In addition, this venture was separate and distinct from the firearm one in that different parties were involved in the supply and distribution network. The profit obviously was distinct as well. For these reasons I agree that the sentence should run consecutively with those for the firearm offences. I do find the fact that there were children living in the premises from which the trafficking took place to be aggravating. Also aggravating are the amounts and level of trafficking and the long period of time over which the offences took place.

[60] Parity is also a relevant principle in view of the fact that one of the co-conspirators with Mr. Jones, Robert Meyer, received a seven month sentence. Mr. Meyer was the drug supplier while Mr. Jones put them on the street. Their operation was highly integrated. I accept that Mr. Jones should receive a sentence similar to Mr. Meyer and impose a 7 month consecutive sentence.

[61] Given the similarity with Mr. Smith's situation in terms of aggravating and mitigating circumstances, I also impose a 7 month consecutive sentence with respect to his charges.

Credit for Pre-Trial Custody

Mr. Jones

[62] Mr. McCann pointed out that Mr. Jones has been held in custody on an immigration hold since the time of his arrest on March 11, 2011. As a result he has 1154 days of pre-trial custody. At the time of argument, Mr. McCann sought enhanced credit of 1.5 to 1 citing R. v. Summers, 2013 ONCA 147, in support of such recognition. Some evidence was called through Natasha Duckworth as to the conditions in the jail where the accused has been incarcerated. With the Supreme Court of Canada's recent pronouncement on pre-trial custody recognition, I may grant 1.5 to 1 credit without having recourse to any evidence or lack thereof with respect to the circumstances within the jail. Indeed, loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1. (See R. v. Summers, [2014] S.C.C. 26.) As a result, I will grant Mr. Jones enhanced credit for the period of time of his arrest until today's date. Based on my calculation, with the enhanced credit, that brings the total number of days incarceration to 1731 or 4.7 years.

[63] Please stand, sir: I am sentencing you to 5 years 7 months imprisonment less credit for your pre-trial custody of 4.7 years. The apportionment is as follows:

• Count #18: 5 years jail less pre-trial credit of 4.7 years;
• Count #09: concurrent to count #18;
• Count #16: 7 months consecutive;
• Count #40: 7 months concurrent; and
• Count #42: 2 months concurrent.

[64] I am further prohibiting you from possessing any firearm, cross-bow, restricted weapon, ammunition, explosive substance, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life in accordance with section 109 of the Criminal Code.

[65] I am ordering that you provide a sample of your DNA to be registered on the DNA databank.

[66] I am ordering forfeiture of all items seized by police.

Mr. Smith

[67] Mr. Smith has been incarcerated since October 2, 2013 when bail was revoked. As with Mr. Jones, he is eligible for enhanced credit based on R. v. Summers, supra. Based on my calculation, he has 220 days of pre-trial custody. Credited at 1.5 to 1, the total credit would be 330 days.

[68] Please stand, sir: I am sentencing you to 5 years 7 months imprisonment less credit for your pre-trial custody of 330 days. The apportionment is as follows:

• Count #19: 5 years jail less 330 days of pre-trial custody;
• Count #28: 4 years concurrent;
• Count #29: 4 years concurrent;
• Count #32: 4 years concurrent;
• Count #17: 7 months consecutive;
• Count #35: 1 month concurrent;
• Count #37: 4 months concurrent; and
• Count #41: 7 months concurrent.

[69] I am further prohibiting you from possessing any firearm, cross-bow, restricted weapon, ammunition, explosive substance, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life in accordance with section 109 of the Criminal Code.

[70] I am ordering that you provide a sample of your DNA to be registered on the DNA databank.

[71] I am ordering forfeiture of all items seized by police.

Mr. Waldron

[72] Mr. Waldron has also been incarcerated since October 2, 2013 when bail was revoked. I am crediting him with 330 days of pre-trial custody as I have done for Mr. Smith.

[73] Please stand, sir: I am sentencing you to 5 years imprisonment less credit for your pre-trial custody of 330 days. The apportionment is as follows:

• Count #09: 5 years jail less 330 days of pre-trial custody;
• Count #10: 4 years concurrent;
• Count #11: 4 years concurrent;
• Count #13: 4 years concurrent;
• Count #31: 4 years concurrent; and
• Count #33: 4 years concurrent.

[74] I am further prohibiting you from possessing any firearm, cross-bow, restricted weapon, ammunition, explosive substance, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life in accordance with section 109 of the Criminal Code.

[75] I am ordering that you provide a sample of your DNA to be registered on the DNA databank.

[76] I am ordering forfeiture of all items seized by police.

Released: May 9, 2014

Justice J. V. Loignon