Court File and Parties

Ontario Court of Justice

Date: February 22, 2017

Court File No.: London 15-7509

Between:

Her Majesty the Queen

— and —

Catlen McCauley

Before: Justice A. Thomas McKay

Heard on: January 17, 2017

Reasons for Sentence released on: February 22, 2017

Counsel

Charles Yih — counsel for the Crown

Jason Skinner — counsel for the defendant Catlen McCauley

Decision

MCKAY J.:

Facts

[1] Mr. McCauley entered a guilty plea to one count under section 95(2) of the Criminal Code for having possession of a loaded prohibited firearm together with readily accessible ammunition.

[2] Mr. McCauley was the target of an investigation by the Guns and Drugs Unit of London Police Service. On April 8, 2015, they executed a search warrant at his residence. Mr. McCauley was arrested leaving the residence. When police entered the residence, they found 14 grams of marijuana on the coffee table, and another 28 grams of marijuana in a bedroom. Mr. McCauley's roommate has taken responsibility for ownership of the marijuana. More importantly, in the bedroom belonging to Mr. McCauley, police located a loaded sawed off shotgun partially concealed by a sock leaning up against the bed. In another sock sticking out from under the mattress were three additional shotgun shells. Police were unable to immediately make the shotgun safe because the hammer was cocked in the firing position and there was no safety on the gun. Later, officers test fired the gun and ammunition and found both to be in working order.

Defence Position

[3] Mr. McCauley's position is that he should be given credit both for pretrial custody, and for the period of time he was released on bail and was essentially on house arrest terms. He served 36 days in pretrial custody. I am prepared to enhance that and provide credit on the basis of 1.5 days for each day served, for a total of 54 days of pre-trial credit. He was released on bail terms. He has been on release for 20 months and the defence takes the position that it is appropriate that he be granted the equivalent of between four and six months credit for his period of time on bail. Combined with the pre-trial credit, that would be the equivalent of 6 to 8 months of pre-trial custody which he should be credited for. Given that credit, the Court should impose a sentence of two years less a day and order that it be served conditionally in the community.

Crown Position

[4] The Crown takes the position that the appropriate position is 3 ½ years in custody. The Crown agrees that 54 days of pre-trial credit should be deducted from that sentence. Credit for time on bail should not be granted.

The Appropriate Range of Sentence

[5] I turn first to the issue raised by defence counsel with respect to the request for credit to the accused for time spent on release under terms of bail prior to being sentenced. As indicated, the defence pointed out that Mr. McCauley spent approximately 20 months released on bail terms. The defence described the terms as "essentially house arrest".

[6] There is appellate authority for the proposition that time spent under stringent bail conditions, especially house arrest, must be taken into account as a relevant mitigating factor when sentencing (see R v. Downes, [2006] O.J. No. 555). The Manitoba Court of Appeal described the process in R v. Irvine, 2008 MBCA 34, 2008 231 C.C.C. (3d) 69, at paragraph 27:

"Unlike the "credit" to be given— after the fit and appropriate sentence has been determined— for time spent in pretrial custody, any consideration to be given for pre-trial bail occurs at the same time as the sentencing judge considers all of the other mitigating and aggravating factors. Time spent on pre-trial bail, in contrast pre-trial custody, does not form part of the punishment itself; rather, it forms part of the initial analysis to arrive at the fit and appropriate sentence. There is no potential "credit' to be given in calculating sentence, as there is under sec. 719(3) of the Code for pre-trial custody. It is simply a potential mitigating factor."

[7] The amount of credit given, if any, will depend upon a number of factors including the length of time spent on bail terms, the stringency of the bail conditions, the impact of the conditions on the offender's liberty and the ability of the offender to carry on normal relationships, employment and activities.

[8] The Ontario Court of Appeal pointed out in R v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 that the accused must "demonstrate that the bail conditions had prejudiced, or imposed undue hardship [on him]". MacPherson, J, speaking for the majority stated at paragraph 29 of the decision "I do not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty".

[9] The appellate authorities make it clear that there must be evidence of hardship, and restrictions on liberty. The onus is on the accused to establish what hardship, if any, the accused actually suffered. In R v. Irvine, supra, it was pointed out that in order to found a claim for credit, the bail conditions should effectively be punitive and impose significant custodial and penal attributes.

[10] In this case, the Court asked whether the defence wished to call evidence with respect to the impact of the bail conditions on Mr. McCauley. The defence declined to do so. In reviewing the terms of release for Mr. McCauley, I note that he was required to reside with his surety, or at a residential rehabilitation facility approved up by the surety. In addition, he was required to be in his residence 24 hours per day, with the usual exceptions for medical emergencies, attending court or meeting with his lawyer. In addition, he was allowed to leave the residence at any time as long as he was in the presence of his surety, or a second individual named in the recognizance. He was not allowed to attend the apartment where he was arrested, or any premises primarily licensed to sell liquor. Other than that, he was free to come and go as he wished as long as he was with the surety or the other individual. In other words, he could go out to dinner, or to a movie, away for a weekend, or on a vacation. In my view, the recognizance did not impose terms which were particularly stringent.

[11] As pointed out in the pre-sentence report, the bail terms allowed Mr. McCauley to attend a residential addiction treatment program and follow-up aftercare. The time on bail allowed him to rebuild relationships within his family, including spending quality time with his two brothers-in-law and to regain the trust of his family, including the opportunity to care for his nieces. Mr. McCauley should receive credit for making positive use of his time on bail. However, it is clear to the Court that there is a lack of evidence regarding hardship for Mr. McCauley, or that the bail restrictions had a significant element of a punitive aspect. For that reason, in my view, Mr. McCauley has not met the burden of proving, on a balance of probabilities, that his bail conditions imposed restrictions on liberty that resulted in hardship. Therefore, he has not established that the time which he spent on bail should be viewed as a mitigating factor which alters the appropriate range of sentence.

[12] With respect to other mitigating factors, Mr. McCauley entered a guilty plea to the charge. In addition, as indicated, he used the time released on bail in a positive fashion, taking pro-social steps including attendance at an addictions program. He has strong family support, which enhances his prospects of rehabilitation. He is still a relatively young man, who will be 29 years of age in May of this year. He has a significant criminal record, but the longest period of time which he has spent in custody prior to this offence was a 90 day sentence.

[13] With respect to the aggravating factors, one has to start with the facts of the offence. A loaded sawed off shotgun partially concealed by a sock leaning up against his bed, with additional shells nearby, is an extremely aggravating set of circumstances. The facts are further aggravated by the fact that the hammer of the gun was cocked in the firing position and there was no safety on the gun.

[14] The Supreme Court of Canada decided in R v. Nur 2015 SCC 15, [2015] 1 SCR 773 that the mandatory minimum sentence under section 95(2) was unconstitutional. However, the court went on to point out that a sentence at least equivalent to the mandatory minimum is still appropriate in the case of factual situations described by the court as "true crimes", as opposed to factual situations which were more related to the licensing end of the spectrum of these offences and do not involve significant moral fault and danger to the public. The court confirmed that Parliament's sentencing objectives of denunciation, deterrence and the protection of society need to be emphasized in relation to the "true crimes" portion of the spectrum. In my view, the facts in this situation show that the conduct of Mr. McCauley falls squarely into the category of "true crimes".

[15] Given that, the Court must balance the purpose and principles of sentencing as set out in section 718 of the Criminal Code. As indicated, denunciation, deterrence and the protection of society are critical considerations. The fact that Mr. McCauley does have a significant criminal record is aggravating, although I note that there is no history of previous weapons offences. Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of Mr. McCauley. Those who work in the justice system, and members of society as a whole, understand the danger created by the possession or use of loaded prohibited or restricted firearms. I am mindful of Mr. McCauley's relatively youthful age, and his prospects for rehabilitation. Notwithstanding that, I am of the view that an appropriate sentence on these facts is something in the range between three years and 3 ½ years in custody. Given that range, a conditional sentence is not available.

[16] I adopt that range because I am of the view that cases such as R v. Marshall 2015 ONCA 692, [2015] O.J. No. 5348 and R v. McKenzie 2016 ONSC 5025, [2016] O.J. No. 4273 are cases provided by counsel which are more applicable to the facts in this case. Other cases provided by counsel can be distinguished on the facts. With respect to the material related to the case of R v. Udoh, (unreported), the authorities are clear that in cases such as that which involve a joint submission, the sentence imposed should be given very little, if any weight as a precedent.

[17] Given Mr. McCauley's plea of guilt and prospects for rehabilitation, I am persuaded to impose a sentence on the low-end of that range; three years in custody. Mr. McCauley shall receive credit for a total of 36 days pretrial custody on a basis of 1.5 days for each day served, for a total enhanced credit of 54 days of pretrial custody. That results in a sentence of time served, plus an additional 34 months and six days in custody.

Released: February 22, 2017

Signed: Justice A. Thomas McKay