Court Information

Date: June 12, 2017

Information No.: 16-2084

Ontario Court of Justice

Her Majesty the Queen v. Justin Schneider

Reasons for Sentence

Before the Honourable Justice G.M. Hornblower

On June 12, 2017, at Sarnia, Ontario

Appearances

• M. Robb – Counsel for the Federal Crown
• N. Stoner – Counsel for the Provincial Crown
• S. Donohue – Counsel for Justin Schneider

Judgment

HORNBLOWER, J. (Orally):

Kerri Fink and Justin Schneider had been in a relationship for several years. It was a relationship that was not without its difficulties. On October 1st, 2015, Mr. Schneider was placed on probation and prohibited from communicating with Ms. Fink without her consent. At one point thereafter, she gave her consent, but revoked that consent on July 18th, 2016. Despite that, the two of them were together on August 23rd, 2016. They returned together to Ms. Fink's residence early that morning. An argument ensued, but did not escalate beyond a verbal dispute. Later that morning at approximately six o'clock, Ms. Fink took one of her children into the bedroom where Mr. Schneider was sleeping. As she was dressing her two-year-old child, the argument resumed. This time, the argument went beyond a verbal dispute. During the argument, while Ms. Fink continued to dress her child, Mr. Schneider removed a gun from a gym bag that was sitting beside his bed. The gun was a Mossberg 22 calibre rifle. The barrel and stock had been sawed off. Mr. Schneider, at a distance of approximately two feet from Ms. Fink, pointed the gun at Ms. Fink's face. Mr. Schneider pulled the trigger. Ms. Fink heard the click of the trigger. The gun, it turned out, was not loaded. Ms. Fink, understandably, was in fear for her life. She was able to retreat from the home with her children. 9-1-1 was called and an Emergency Response Team responded. After a four-hour stand-off, Emergency Response Team officers, acting on a warrant, entered the residence. Mr. Schneider was found unarmed, hiding in the attic. The rifle, with a clip in it and loaded, was found in the basement, along with 61 bullets and another seven in the clip.

Children in the home, a sawed-off rifle pointed at the face of Ms. Fink, the trigger pulled, a two-year old child present, a four-hour standoff, police entry into the home, officers not knowing where Mr. Schneider was, whether he remained armed, whether his weapon was loaded or what his intentions were and Mr. Schneider, high on a combination of drugs and alcohol. This factual scenario all very real and all very chilling. Mr. Schneider entered guilty pleas to five charges arising from that event:

• Pointing a firearm under Section 87
• Possession of a firearm while prohibited under Section 117.01(1)
• Possession of a loaded prohibited firearm under Section 95(1)(a)
• Possession of Oxycodone under Section 4(1) of the Controlled Drugs and Substances Act
• Breach of probation under Section 733.1(1)

The Crown has argued for a global sentence of seven to eight years. The defence has argued for a global sentence of two and a half years.

Both counsel have provided casebooks. The cases relied upon by the Crown and the defence show a wide range of sentences imposed by courts dealing with similar offences. That is not surprising, as sentencing must reflect the unique circumstances of each case, as well as the unique circumstances of each offender.

Virtually all of the cases to which I have been referred set out the relevant sentencing principles generally, as well as the specific sentencing principles for offences of this type. There is no need for me to reiterate them. They are well known.

In applying general sentencing principles to these facts, I am guided by the Supreme Court of Canada's decision in Regina v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 and Regina v. Slack, 2015 ONCA 94, [2015] O.J. No. 649, a decision of the Ontario Court of Appeal. In Regina v. Nur, after concluding that the minimum sentences provided for in Section 95(2)(a) were unconstitutional, the Chief Justice went on to say the following at paragraph five:

[5] This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances.

In Regina v. Slack, Justice Cronk succinctly explained the reasoning in Nur as follows at paragraph 23:

Both Nur and Charles affirm that offenders convicted of "truly criminal conduct" in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation.

That approach to sentencing for firearms offences is consistent in all of the cases that have been put before me for my review, whether submitted by the Crown or by the defence.

The primary sentencing principles are denunciation and deterrence, as well as protection of the public. Mr. Schneider's rehabilitation is also a significant concern in assessing the appropriate sentence.

Rehabilitation Prospects

With respect to his rehabilitation, I would note the following: Mr. Schneider is only 27. There is a record related to domestic violence and failing to comply with Court orders. That record is a factor in assessing his rehabilitation prospects. It indicates that he is not so deeply entrenched in that particular lifestyle that it would detract from the prospects for rehabilitation for someone his age.

In his statement to the Court, Mr. Schneider displays insight into his behavior, the impact on Ms. Fink and the children, the need to effect change and the extent to which drugs and alcohol are destroying his life and the lives of his family members. He accepts the need for counselling and treatment.

The pre-sentence report speaks of a guarded assessment for Mr. Schneider's prospects for rehabilitation. In that regard, I would point to two comments in the pre-sentence report. At page 10, Mr. Papple, the author of the report, states the following:

While the offender has generally reported to Probation as directed, it would appear that he has been minimally invested and not followed through with supports addressing mental health and substance abuse.

A similar comment is found in Mr. Papple's assessment on page 10 as follows:

While the offender has generally reported to probation regularly, there is no evidence that probation conditions have served any effect in preventing the offender from associating with the victim, nor encouraging him to follow through with mental health or substance abuse issues. The offender provided misleading information on several issues in this regard.

The pre-sentence report outlines the details of Mr. Schneider's background. A dysfunctional family, a turbulent and chaotic childhood, diagnosed behavioural disorders and mental health issues, all of which, no doubt, have led to his substance abuse problem. It is acknowledged that, at the time of this offence, Mr. Schneider was under the influence of alcohol and drugs. Counselling and treatment can address most, if not all, of these issues, but Mr. Schneider has thus far been unaccepting of the help available.

The sentencing materials provided by the defence point to another side of Mr. Schneider. In various letters filed, Mr. Schneider is described as a loving person, a loving father who would do anything for his children and a role model to his children. One of those letters comes from Ms. Fink, his common-law spouse, who remains supportive of Mr. Schneider. This positive side to Mr. Schneider's personality is overshadowed by that side which fueled the commission of these offences, as well as the others in his record. That positive side will enable Mr. Schneider to be a productive member of society, but only if he is accepting of the counselling and treatment that are integral to his rehabilitation. Although the prospects for rehabilitation are guarded, given his age and the insights into his problems that he has displayed, I believe that rehabilitation remains a viable possibility and needs to be factored into the assessment of sentence.

Mr. Schneider has plead guilty to these offences. That is a mitigating factor for my consideration.

Aggravating Circumstances

The mitigating factors need to be weighed along with the aggravating circumstances. Among those are the following:

• The offence arises in a domestic setting
• A young child was in the immediate vicinity when the weapon was pointed at Ms. Fink
• Other children were present in the home
• Various court orders were in place governing Mr. Schneider's contact with Ms. Fink
• There is a history of domestic violence with three prior convictions that arise from assaults of Ms. Fink and there is a history of violating Court orders

Sentencing for Individual Offences

Bearing all of that in mind, as well as the principle of totality, I turn to a consideration of the various offences, dealing with them in the order in which the pleas were taken.

Section 87 – Pointing a Firearm

I view this as the most serious of the offences. The surrounding circumstances are, as I have said, chilling. Nothing can have been more terrifying for Ms. Fink than having a firearm pointed at her face, not knowing Mr. Schneider's intentions, not knowing if the gun was loaded, all the while knowing that her young child was present. An exemplary sentence is required for an offence of this nature, given the circumstances and, on this matter, there will be a period of incarceration of three years.

Section 117.01(1) – Possession of a Firearm While Prohibited

I believe this offence should be treated as a separate and distinct sentence, rather than as an aggravating circumstance to other offences, which would result merely in a concurrent sentence. Violations of Court orders are serious, not because it is a Court that made the order, but rather, because all such orders are made for the purpose of maintaining order and protecting the public. These orders are not merely pieces of paper. They are imposed for a reason and must be adhered to. Mr. Schneider's past behavior demonstrated a real concern with respect to weapons and the need to prohibit him from possessing those weapons. Had the order been adhered to, all of this would have been prevented. Reflecting that, a period of incarceration of one year consecutive to any other time is appropriate.

Section 95(1)(a) – Possession of a Loaded Prohibited Firearm

At the time the gun was pointed at Ms. Fink, it was not loaded. I accept that Mr. Schneider loaded the gun sometime thereafter, after Ms. Fink and the children were out of the residence. Loading it with the intent to commit suicide. In assessing sentence for this matter, I also take into account the involvement of the Emergency Response team, as the loading of the weapon was contemporaneous with their involvement. At the time the officers entered into the residence, they did not know where in the residence they would find Mr. Schneider. They did not know what his intentions were. They did not know if the weapon he had was loaded. In their minds, no doubt there were other unknowns of concern. What they did know, when they entered the residence, was that they were facing a situation of extreme danger and that their lives and safety were at risk. While these may be considered as aggravating circumstances overall, I believe these circumstances are more appropriately considered in the context of this particular offence. Many of the cases I have been referred to have resulted in sentences of three to four years. The one aspect of this situation that differentiates it from other scenarios is that the weapon was loaded for the purpose of self-harm rather than harm to others. I am mindful, of course, that none of that was known to the officers entering the residence. Balancing those two aspects of this offence, a period of two years' incarceration consecutive to other time is imposed.

Section 4(1) – Controlled Drugs and Substances Act

There is a period of incarceration of 60 days, but that is concurrent to time already imposed.

Section 733.1(1) – Breach of Probation

There is a period of 60 days of incarceration, but again, that is concurrent.

Pre-Sentence Custody Credit and Additional Orders

Mr. Schneider has been in custody since his arrest on August 23rd, 2016, a total of 294 days. Enhanced credit results in pre-sentence time served of 441 days by my calculation. That time served is to be applied to the sentence for the offence under Section 95(1)(a). That two-year sentence converts to 730 days. Applying the enhanced pre-sentence custody leaves a balance of 289 days on that offence. That time is, as indicated, consecutive to any other time served.

A lifetime firearms prohibition was imposed under Section 109 of the Criminal Code. A DNA order will be made for all applicable offences. An order will be made regarding communication with Ms. Fink. She remains supportive of Mr. Schneider and wishes communication. The order that will be in effect will prohibit communication with Ms. Fink by Mr. Schneider unless Ms. Fink provides consent in writing to the Superintendent of whichever correctional facility Mr. Schneider is in at the time. Of course, her consent can be revoked at any time. With respect to the surcharges, given the circumstances, it would be completely unfair to impose them and I decline to do so.

Address to the Offender

Mr. Schneider, the decision is a difficult one for somebody your age, but it does reflect what I believe to be a proper balance of the sentencing factors, particularly the prospect for rehabilitation. As I indicated, your comments to the Court do display some insight and I take them at face value, that you are seriously-minded to change the lifestyle that you have and as I have pointed out in the Judgment, and hopefully you accept, all of those underlying factors that led to the substance abuse problem can be properly addressed. Hopefully within whichever correctional facility you are, the treatment will be made available to you and you will be accepting of it. I believe that in that fashion, your release from custody will see you back with your family as a positive, productive member of society. More importantly, as a role model to your children.

The remaining charges on this information, if not already withdrawn, are to be withdrawn?

MS. STONER: Yes, thank you, Your Honour.

THE COURT: Any ancillary orders that I have not dealt with?

MS. STONER: Just the forfeiture of the firearm and the ammunition.

THE COURT: Yes. There will be a forfeiture order with respect to the firearm and any of the ammunition seized.

MS. DONOHUE: Your Honour, Mr. Schneider provided me with a letter that he'd like to address the Court once again. I've reviewed it and I find no issue with it. If that would be agreeable to Your Honour?

THE COURT: I have no difficulty hearing from Mr. Schneider. Thank you.

Statement by the Offender

JUSTIN SCHNEIDER:

I'd just like to say that I appreciate your time, Your Honour. I don't condone my actions and I do understand the severity of the consequences. Going forward, I would just like to say that I have truly frowned on my poor choices but this experience has made me see and look at life in a much more positive way. This chapter of my life won't last forever. I can't change how this chapter started, but I can change how it ends and I do have to accept it. I also have to accept life on life's terms. Self-pity, selfishness and self-centredness is gonna get me absolutely nowhere. I have had an opportunity to accept God into my life during my incarceration and look to continue my relationship with him. I have never been in so much trouble in my life than what I am in now. I do not look at it in a negative way. Though I look at it – I look at it as an experience well-learned. I have learned that negative behaviours bring negative consequences. This chapter of my life that I am going through right now – I look for a better tomorrow and a brighter future when this is all done and over with. I look to move on, to maintain sobriety, to maintain as well as continue my relationship with God. My attitude today and the way I look at things today is totally different. Accepting things as they come, negative or positive. I look at the positives, not negatives, because if I choose to be self-centred or pity myself or even selfish, I'm only gonna be back in the same predicament, but by accepting life on life's terms and learning from my experiences and mistakes and maintaining a relationship with God and try to help others, I will prosper and overcome and learn from my experience, as opposed to repeating them again. Thank you.

THE COURT: Thank you, Mr. Schneider. If I may, I would like to have a copy of that made as an Exhibit. I would like the original to be returned to you. Hopefully that can accompany you to whichever facility you are transported. I think that will be value for you moving forward, to look at that and reflect on it from time to time. I am also going to ask that a copy of that letter, as well as the one you provided initially, be forwarded to the Corrections facilities along with any of the other material that get sent to them. Okay. Thank you.

...WHEREUPON THESE REASONS ARE COMPLETE.

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Annie Sheehan, certify that this document is a true and accurate transcription of the recording of R. v. Justin Schneider in the Ontario Court of Justice held at 700 N. Christina St., Sarnia, Ontario, taken from Recording No. CD: 1711_CrtRm302_20170612_090157__6_HORNBLM which has been certified in Form 1 by Brooke Kivell.

June 23, 2017

Annie Sheehan

annie.transcripts@gmail.com 519-491-5402