Ontario Court of Justice

Date: 2016-08-25

Court File No.: Toronto 4817 998 15 75007451-00; 4817 998 15 75006820-00

Between:

Her Majesty the Queen

— AND —

Meera Shunmuganathan

Before: Justice Richard Blouin

Guilty Plea: June 6, 2016

Sentencing Submissions: July 20, 2016

Reasons for Sentence Released: August 25, 2016

Counsel:

• Lindsay Kromm, for the Crown
• Angela Ruffo, for the accused Meera Shunmuganathan

BLOUIN, J.:

Facts

[1] On June 6, 2016, the defendant entered a guilty plea to one count of Possessing a Prohibited Firearm with Readily Accessible Ammunition pursuant to s. 95(1) of the Criminal Code. The facts were entered on an Agreed Statement, and sentencing was adjourned to July 20, 2016. Since the specific facts of this case are obviously important, I will now reproduce that Agreed Statement.

The accused, Meera Shunmuganathan, resides at 315-325 Bleecker Street with her mother, Jesusa Shunmuganathan. Jesusa Shunmuganathan is the leaseholder of the apartment, which is a standard two-bedroom apartment unit.

In late January 2015, Jesusa Shunmuganathan noticed that an old handbag of her daughter's was out on her daughter's bed. The handbag was normally kept in the accused's closet and had not been used in years. Jesusa Shunmuganathan became suspicious and looked in the bag. She remained suspicious, and over a period of approximately one week, continued to search the accused's room and the handbag when the accused was not home. The accused's bedroom door was not locked, and Jesusa Shunmuganathan was able to freely access the bedroom on these and other occasions. The next time she saw the handbag, it was in her daughter's closet sitting on top of a plastic drawer.

In the early morning hours of Sunday, February 1st, 2015, Jesusa Shunmuganathan was again searching through her daughter's room looking for the handbag while her daughter was at work. The last time she had checked the handbag was Tuesday, January 27 or Wednesday, January 28.

When she initially could not find the handbag on top of the plastic drawer in the closet, she searched deeper into the closet and eventually located the handbag behind the drawer. Jesusa Shunmuganathan opened the handbag and observed a black handgun inside, visible but wrapped in a t-shirt which she had seen the accused wearing several evenings prior. She contacted the police to report the found firearm.

Before the police arrived, Jesusa Shunmuganathan moved the handbag storing the firearm into a cooler on the balcony. She also called her friend Aaron Murray and her sister Justine Madalipay. Both parties attended the apartment to provide support to Jesusa Shunmuganathan. They were shown the handbag with the firearm inside, and confirmed it appeared to be real. Mr. Murray returned the cooler with the firearm in it to the balcony of the apartment unit.

When officers attended at the apartment building, they were taken directly into the unit and onto the balcony by Mr. Murray. There, they located and seized the firearm, and confirmed that it was not loaded. They also searched the accused's bedroom and took photos of the room and closet where the firearm was found.

At about 3:30 a.m., the accused returned home and was immediately arrested for unauthorized possession of a firearm. She tried to start speaking, and was told to stop while she was advised of her right to counsel. When asked, "do you want to call a lawyer now?" she responded affirmatively. She nonetheless continued to speak to police, saying that the gun had been left with her by a male friend for her to hold and that she had only had it for a day.

The accused was then asked by an officer if there was anything else for them to find, and the accused directed them to bullets in the pocket of her leather jacket in her closet. Police did in fact then locate 9 rounds of 9mm Luger ammunition in a drawstring pouch in the accused's jacket.

Ms. Shunmuganathan was transported to 51 Division in a scout car. After speaking with Duty Counsel, she provided a videotaped, cautioned statement to police in which she acknowledged having stored the firearm for another individual. It is agreed that Ms. Shunmuganathan was not the "true owner" of the firearm or ammunition, but that she was holding them for a male friend, and had come into possession of them within several days of her arrest. Ms. Shunmuganathan knew there was no legal reason for this male to be in possession of a handgun and ammunition.

The firearm was identified as a Glock 26 pistol. It is a "prohibited firearm" as defined by s. 84 of the Criminal Code of Canada. Some of the ammunition was test-fired in the firearm, and did successfully discharge from it. At the relevant time, the accused did not have a licence permitting possession of a firearm nor a registration certificate for the said firearm.

Position of the Parties

[2] The Crown submits a sentence of incarceration of 21 months is the appropriate sentence. Ancillary orders sought are a DNA order and a s. 109 Prohibition for 10 years. The defence position is that I should impose a sentence of imprisonment to be served in the community.

[3] Ms. Kromm conceded that specific deterrence is not likely a factor that would be at play in this sentencing and that a guilty plea, albeit on the "eve" of trial, would be a mitigating factor on sentence. She further defined the sentencing parameters by conceding that a conditional sentence was not barred by law. She felt that a sentence of less than two years was adequate, and that Ms. Shunmuganathan's service of the sentence in the community would not endanger the safety of the community. In fact, she conceded that none of the provisions of s. 742.1 (b) – (f) would prevent the imposition of a conditional sentence. However, her position was that a conditional sentence would be inconsistent with the purpose and principles of sentencing set out in s. 718 to 718.2 in that it would not meet the predominant objectives of denunciation and deterrence, and would not meet the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[4] Ms. Kromm also conceded that some of the aggravating factors found in similar cases such as the gun being loaded, or possessed in the context of the drug trade, or one carried in a public place, were not present in this case. However, she maintained the defendant's conduct, in addition to its status as an offence in itself, had the very unenviable consequence of enabling other criminal conduct. Young women like the defendant, she argued, can be employed by those who use firearms to hold those firearms because they would be much less likely to attract police attention than the "true owner". The message cannot be sent that the best way to possess a firearm without consequences is to leave it with a sister or a girlfriend.

[5] Ms. Ruffo submitted that her client was very young, impressionable, and remorseful. The defendant had no involvement with the criminal justice system before this offence. She had entered a guilty plea on the eve of trial—but witnesses were cancelled. She had co-operated fully with the police. She delivered the bullets to the police. She disclosed the name of the true owner of the gun.

[6] Shortly after being charged, Ms. Shunmuganathan consulted Julie Freedman, M.A., M.S.W., PhD (candidate) for psychological assistance. Between April 12, 2015 and July 12, 2016 the defendant completed ten hours of counselling. A report was prepared on July 13, 2016 and was submitted as part of defence materials on sentencing. Most strikingly, the report details the defendant's witnessing her father's violence against her mother. When she was nine years old an incident resulted in her mother being hospitalized and her mentally ill (bipolar disorder) and alcoholic father arrested, incarcerated, and ultimately deported.

[7] Ms. Shunmuganathan is registered as a full-time student in an International Business program at George Brown College. She started in September of 2015 and will commence her second year this September. She also works part-time at a local grocery store. Her mother, who believed her daughter to be negatively influenced 18 months ago, now believes her attitude to be completely changed.

[8] I think it is useful to produce the counselling summary from that July 13, 2016 report.

Through the course of counselling Ms. Shunmuganathan concluded that the poor relationship she had with her father, in addition to being a witness to his verbal and emotional/psychological abuse toward her mother did contribute to low self-esteem, her lack of confidence and frequent inability to be assertive. She also identified that the emotional abuse she experienced in her last relationship served to further perpetuate these vulnerabilities.

Ms. Shunmuganathan also concluded that she has not set healthy boundaries in relationships. She has frequently struggled to say no and to be assertive. Her coping strategies for low self-worth have not been emotionally healthy choices. She has associated with individuals who were manipulative and abusive.

Ms. Shunmuganathan does not consider the insights she gained through the course of counselling to be an excuse for the behavior that led to her criminal charge rather, these insights serve the purpose of understanding antecedent factors that lead to poor coping strategies that have had significant consequences. Therapy was focused preventing future occurrences of behaviors that brought her into conflict with the law by way of understanding underlying issues and unconscious motivations. Therapy was focused on increasing her level of healthy self-esteem and building assertive communication skills.

Ms. Shunmuganathan and I have addressed issues relating to the matter now before the courts with good success. Together we explored the underlying issues that brought her into conflict with the law. Ms. Shunmuganathan demonstrates strong regret and remorse for her behavior and a clear understanding of the consequences not only upon herself but also upon others. Together we have addressed and worked on specific tools and strategies to deal with her identified emotional vulnerabilities. Over the course of therapy she practiced and integrated assertive communication skills in conjunction with deep work on increasing her sense of self-worth. These strengths have enabled her to set healthy boundaries with others and to make positive constructive choices for herself. These are significant therapeutic successes.

Ms. Shunmuganathan further demonstrated that the therapeutic process has been successful by making several changes. These include talking about issues rather than internalizing feelings and being proactive in seeking immediate help when her levels of stress increase or when she is confronted with conflicting life choices. Ms. Shunmuganathan has ongoing support from a strong network of family and friends in order to meet these personal commitments. In addition, she stated that she will continue to attend counselling.

Through the course of counselling Ms. Shunmuganathan was meaningfully engaged in a process of self-examination. Insight oriented therapy enabled Ms. Shunmuganathan to focus on underlying issues that led to the incident that resulted in her criminal charge. She acknowledges that she has engaged, at times, with self-sabotaging behavior.

Ms. Shunmuganathan's involvement with the criminal justice system has had a meaningful and profound impact on her. In my opinion, these factors combined with her current insights, healthier coping strategies and high motivation put her at very low risk of being in conflict with the law in the future.

The Law

[9] Purpose and Principles of Sentencing

Section 718 of the Criminal Code reads as follows:

The fundamental purpose of sentencing is to contribute, along with 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 the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

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

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

Fundamental Principle:

Section 718.1 of the Criminal Code reads as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[10] Section 95 of the Criminal Code reads as follows:

95(1) Possession of a prohibited or restricted firearm with ammunition

Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and

(b) the registration certificate for the firearm.

[11] Both counsel produced case books containing numerous s. 95 (and s. 91, 92) firearm cases in order to provide support for their respective positions. I have accessed and considered those cases, many of which I found helpful on the primary issues I must decide – general deterrence and denunciation. These cases are as follows: R. v. Nur, 2013 ONCA 677; aff'd 2015 SCC 15; R. v. Smickle, 2013 ONCA 678; R. v. Mansingh, 2016 ONSC 94; R. v. Ishmael, 2014 ONCJ 136; R. v. Browne, 2014 ONSC 4217; R. v. Filian-Jimenez, 2014 ONCA 601; R. v. Thomas, [2014] O.J. No. 5975 (S.C.J.); R. v. Boussoulas, 2015 ONSC 1536; R. v. Beals, [2015] O.J. No. 2306 (S.C.J.); R. v. Molin, [2015] O.J. No. 6074 (S.C.J.); R. v. Gomes, [2014] O.J. No. 6579 (S.C.J.); R. v. Canepa, 2011 ONSC 1406; R. v. Prosser, 2014 ONSC 6466; R. v. Williams, 2011 ONSC 3914; R. v. Rutledge, [2015] O.J. No. 5568 (S.C.J.); R. v. T.A.P., 2014 ONCA 141; R. v. Proulx, 2000 SCC 5; R. v. Ijam, 2007 ONCA 597.

[12] In R. v. Nur 2013 ONCA 677, Justice Doherty, after reviewing the statutory provisions which govern firearms, articulates the factors which reflect parliament's view regarding the gravity of this particular offence:

(45) Section 95 carries a more serious penalty than do any other possession simpliciter offences. The penalty reflects two aggravating factors found in the provision. Section 95 applies to prohibited and restricted firearms, and not to other firearms, and it applies only if the firearm is loaded or if ammunition for the firearm is readily available.

(49) Section 95 casts a "wide net": MacDonald, at para. 47. Unlike some firearm offences that carry a substantial minimum penalty (e.g. manslaughter, at s. 236(a), and criminal negligence causing death, at s. 220(a)), s. 95 does not require proof of any harm, or even any risk of harm, to any other person as a result of the possession of the firearm. Nor, unlike other sections carrying a mandatory minimum (e.g. discharging a firearm at a person with intent to wound, at s. 244(2)), does s. 95 require proof of an intention to cause any harm, recklessness as to the potential for harm flowing from the possession, or even criminally negligent behaviour relating to the firearm. It is irrelevant to a charge under s. 95 that the accused took all necessary precautions to ensure the safety of others.

(50) Section 95 differs from other firearm possession offences that carry a minimum penalty in another respect. Unlike, for example, the offences created by ss. 85, 96, 100, and 279, there is no requirement in s. 95 that the Crown prove that the possession of the firearm was connected to some other unlawful activity or intended unlawful activity. Possession is criminal under s. 95 even if it is entirely untainted by any other unlawful activity.

(55) 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. By criminalizing possession simpliciter, the criminal law can intercede before someone is actually harmed and before criminal activity, so often associated with the possession of these kinds of firearms, actually occurs or is attempted.

(198) …s. 95 is part of a package of legislation presented by various governments over the last 20 years in response to the very real and increasing societal danger posed by the proliferation of illegal firearms and the escalation of gun-related violence and other criminal activity. Parliament's response to this pressing societal concern has included an expansion of the reach of the criminal law and the creation of sentencing ranges for firearm-related offences that place a premium on deterrence and denunciation.

(206) Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

[13] Given the comments of Doherty, J. above it would be difficult not to conclude this offence to be closer to the "true crime" end of the spectrum.

Findings

[14] Aside from the mitigating factors, the Crown conceded, as indicated above, the absence of three aggravating factors one finds present in many of the s. 95 cases decided after the Ontario Court of Appeal decisions in Nur and Smickle. Those factors absent in this case are as follows:

• No evidence that the gun was possessed in connection with the drug trade
• The gun was not loaded
• The gun was not possessed in a public place

[15] In addition, I find there were some exceptional aspects of this case not present in other cases.

• The defendant was arrested not because she was the subject of any ongoing police initiative, but because her mother phoned the police when she found the gun. While the defendant's criminal conduct is not diminished because of her mother's admirable actions, her present attitude displays integrity and maturity. Ms. Shunmuganathan did not blame her mother for her present criminal plight, but instead recognized that her mother acted out of concern and love for her daughter.

• It was the defendant who provided the evidence regarding readily accessible ammunition. After she was arrested for the gun possession and after asserting her wish to consult with counsel, she was asked by an officer if there was anything else for them to find. When the defendant directed the police to the pocket of her jacket in her closet where the bullets were located, the police had already searched her room. Without expressing any view on the success of litigation that was made unnecessary by the guilty plea, it is clear the defendant has foregone a viable Charter argument. Her guilty plea in that context is deserving of significant recognition. Without the bullets, the defendant was facing a less serious offence under s. 91 or 92 of the Code.

• The defendant sought psychological counselling very soon after the offence, and not post guilty plea, in preparation for sentencing. In that counselling report, an explanation as to how someone like Ms. Shunmuganathan could find herself in this criminal predicament emerged. Although herself not criminally involved, her family history dealing with her father's abuse and removal from the family, and the resultant low self-esteem and lack of assertiveness, allows one to understand how she could be manipulated by someone who was likely criminally involved.

• The Crown conceded that the defendant was not the "true owner" of the gun. She was holding it for a male friend and had come into possession of it within "several days" of her arrest. When I questioned counsel about any investigation involving the true owner, I was told police were given a name by the defendant (that being the person she was prohibited from contacting as a condition of bail), but that the investigation did not result in charges laid against that individual.

• The Crown took the position that the defendant was, of course, entitled to receive mitigation for a guilty plea. However, that mitigation should be diminished to some degree because it came just days before the trial was to commence, and the court time (five days) could not be adequately re-scheduled. This late expression of remorse should receive less consideration. I agree generally with that submission. However it struck me that another aspect of the time line to resolution should be acknowledged. This matter was never pre-tried before this Court. The vast difference in sentencing positions were put forth in court without any judicial input. Often, in cases like this, where the stakes are high and the defendant has triable arguments, the defendant will attempt to gain a favourable position from a judge before the right to trial is waived. Ms. Shunmuganathan did not do that. In my view, leaving her fate completely in the hands of the Court illustrates significant remorse.

• In my view, the most significant exceptional aspect of this case is the defendant's age. Not only is she a youthful first offender (her birthday is December 14, 1996), but she had turned eighteen just six weeks before this offence. Obviously, the law requires that she be sentenced as an adult, but weeks earlier she would have been charged under the Youth Criminal Justice Act (YCJA). Although provisions in that Act allow for a youth to receive an adult sentence, in all likelihood she would have received a youth sentence and a custodial sentence only if the preconditions noted in s. 39 had been met. The relevant provisions are s. 39(1)(a) (violent offence), and 39(1)(d) (an exceptional case). Without attempting to assess the likelihood of jail, or no jail, if charged as a youth, it is abundantly clear that the defendant was about as young as one could be without attracting a much less stringent (in terms of the use of jail) sentencing regime, provided for in the YCJA. In addition, general deterrence is not a part of sentencing young persons as defined in the YCJA (R. v. P. (B.W.) 2006 SCC 27, [2006] 1 S.C.R. 941).

[16] The question then remains: can the principles of denunciation and deterrence in a handgun possession case be met by a conditional sentence? Although decided before Nur and Smickle, Nordheimer, J. imposed a conditional sentence in a case where a young man entered a guilty plea to a charge under s. 92, although the facts would have supported a finding under s. 95 (R. v. Canepa, supra). The police located a loaded firearm in the defendant's possession in the context of the presence of narcotics. His Honour's comments at paragraphs 13 and 15 are instructive:

(13) The real issue is whether the imposition of a conditional sentence accords with the fundamental principles and objectives of sentencing. Two of those objectives are denunciation and deterrence. In that regard this offence involves a firearm and I am well aware of the continuing concern in this community regarding the possession of weapons, particularly the possession of weapons by young people. This city has experienced a series of occurrences involving firearms over the last number of years. Many of those occurrences have results in the deaths of entirely innocent people. These tragedies have only served to heighten the public's concerns.

(15) I accept that denunciation and deterrence are important sentencing objectives in this case. The question is whether it is necessary to impose a term of imprisonment as the only route to achieving those objectives. I am aware that some may hold the view that imprisonment is the only effective way of expressing denunciation and achieving deterrence. That view, however, ignores the observations made by Chief Justice Lamare (sic) in the seminal case on conditional sentences namely R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 in which the Supreme Court of Canada held that conditional sentences can achieve both of those objectives

[17] In paragraph 127 of Proulx, point 10, Justice Lamer summarizes as follows:

(127) 10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

[18] Although not argued by counsel, a recent Ontario Court of Appeal case dealt with a sentence appeal by endorsement regarding a defendant who attempted to board a flight in Ottawa with a 22 calibre pistol and 100 rounds of ammunition in his checked baggage (R. v. Laponsee [2015] O.J. No 2433). The Court concludes at paragraph 4:

The appellant also appeals his sentence. He was sentenced to a 12 months conditional sentence. He submits the trial judge erred by not granting him a conditional discharge with strict probation. The trial judge considered all the circumstances and concluded that a conditional discharge would be contrary to the public interest. He said that denunciation and general deterrence required that "the message must be clear that one does not bring a gun and bullets to an international airport without severe consequences." We agree.

The Court endorsed the view that a conditional sentence provided "severe consequences".

[19] Although an extraordinarily close call, after extensive consideration, I conclude that in this discrete fact scenario, a sentence served in the community can meet the required principles of sentencing. Especially so since her mother will likely be supervising that sentence in the community. And, in my view, although obviously defensible, institutional incarceration would destroy this promising young woman. However, it must be sufficiently punitive to achieve denunciation and general deterrence. The sentence will be two years less one day of house arrest (with limited exceptions) and it will include 200 hours of community service.

[20] The conditions are as follows:

Mandatory Terms

1. Keep the peace and be of good behaviour

2. Appear before the Court when required to do so by the Court.

3. Report in person within two (2) working days to a supervisor and thereafter when required by the supervisor and in the manner directed by the supervisor.

4. Remain in the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor.

5. Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation.

Specific Conditions

6. During the entire term of the Conditional Sentence Order, you will remain confined to your home address.

Except:

• to attend school
• to attend medical appointments, or medical emergencies involving yourself or your mother.
• to attend employment
• to shop for necessities for one three hour period, once per week
• any other reason deemed appropriate by your Supervisor
• to perform community service

All exceptions above include travel immediately to and from. All exceptions must be identified in a written letter of permission approved by your Supervisor (except emergencies).

Specifically, I decline the defence request to allow the defendant to attend her aunt's premises for dinner on Sundays between 5 p.m. and 8 p.m. As indicated above, this sentence must be punitive.

7. You will perform 200 hours of community service at a rate and schedule approved by your Supervisor.

8. You will have no contact or communication, directly or indirectly, with Abel Adamu.

9. You will not possess weapons as defined by the Criminal Code.

[21] A DNA databank sample is in the best interests of the administration of justice, and will be ordered.

[22] A s. 109 prohibition will be ordered for a period of 15 years.

Released: August 25, 2016

Signed: "Justice Blouin"