Court Information

Ontario Court of Justice

Date: 2019-01-10

Court File No.: Belleville ON 170262

Parties

Between:

Her Majesty the Queen

— And —

Warren Roberts

Before the Court

Justice: E. Deluzio

Heard on: October 25, 2018 and December 22, 2018

Reasons for Sentence released on: January 10, 2019

Counsel

For the Crown: Pardeep Bhachu

For the Accused: Jordan Tekenos-Levy and Mr. Boeve

Reasons for Sentence

Deluzio J.:

Introduction

[1] On October 25, 2018 Mr. Roberts pleaded guilty to one count trafficking in a firearm contrary to section 99(1) of the Criminal Code. A pre-sentence report was ordered and the Court heard sentencing submissions on December 22, 2018.

The Mandatory Minimum Sentence

[2] The conviction for weapons trafficking carries with it a mandatory minimum sentence of three years imprisonment. The defence argues that the mandatory minimum sentence in this case has been found to be cruel and unusual punishment, and declared unconstitutional in several decisions by the Ontario Superior Court, that these decisions are binding on the Ontario Court of Justice, and that therefore there no longer remains an operative mandatory minimum sentence of three years jail for trafficking in a firearm in this Court.

[3] The Crown disagrees and submits that the Superior Court decisions have no binding effect on this Court.

[4] The mandatory minimum sentence prescribed by Section 99(2) of the Criminal Code was found to breach Section 12 of the Charter and was declared unconstitutional and struck down by Superior Court Justice Edwards in R v Hussain, 2015 ONSC 7115, [2015] O.J. No. 6159. Subsequently, in R v Sauve, 2017 ONSC 7375, Justice Lacelle decided that while, as a court of co-ordinate jurisdiction, Hussain was not strictly binding upon her, she agreed with its result and also found that section 99(2) of the Criminal Code violates Section 12 of the Charter and is of no force and effect.

[5] The Superior Court of Justice, as a court of inherent jurisdiction, has the power to declare a law unconstitutional. The Ontario Court of Justice can conclude that a law is unconstitutional and decide not to apply that law in a specific case, but we cannot make a constitutional declaration of invalidity.

[6] While a declaration of constitutional invalidity may not be "absolutely binding" on courts of co-ordinate jurisdiction (see: R v Scarlett, 2013 ONSC 562 at para 43), it is clear, in my view, that a constitutional declaration of invalidity by the Superior Court does bind the Ontario Court of Justice.

[7] I agree with and adopt the reasons of Justice Pringle who considered the issue of whether the mandatory minimum sentence for weapons trafficking remains operative in the Ontario Court of Justice in R v Alamary, [2018] O.J. No. 4927. She writes at paragraph 13 of her Reasons: "The Ontario Court of Justice does not have coordinate jurisdiction to a Superior Court exercising its declarative power. We are the court to which declarations are meant to apply most forcefully. Jurisdictional chaos would ensue if lower courts were free to operate as though a Superior Court's declaration of constitutional invalidity had no practical impact on them …. A declaration must necessarily have an impact. Either the Crown appeals a declaration of constitutional invalidity or they accept the effect of that declaration. There is no middle ground in this situation. As a result, the effect of R v Hussein is that the offence Mr. Alamary pled to, Conspiracy to Traffic a Firearm, no longer carries a mandatory minimum sentence of three years in jail."

[8] I find that the mandatory minimum sentence prescribed by Section 99(2) of the Criminal Code no longer remains operative, and I must therefore determine the appropriate sentence for Mr. Roberts, taking into consideration the principles and purposes of sentencing set out in Section 718 of the Criminal Code, and the jurisprudence.

The Position of the Crown and Defence

[9] The Crown takes the position that given the seriousness of this offence, the primary sentencing objectives should be general and specific deterrence and denunciation and asks the court to impose a sentence of three years imprisonment.

[10] The Defence concedes that a sentence of jail is appropriate in this case, but argues that the appropriate sentence is a sentence of less than two years, and asks the court to impose a conditional sentence.

The Principles of Sentencing

[11] Section 718 provides that "the fundamental purpose of sentencing is to protect society and 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 the 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;

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

[12] Section 718.1 requires that the Court ensure that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender; and Section 718.2 requires the Court to take into account any aggravating and mitigating factors, sentences imposed on similar offenders for similar offences, and all available sanctions, other than imprisonment, that are reasonable in the circumstances.

The Circumstances of the Offence

[13] Warren Roberts and his son Daniel Roberts were jointly charged with a single count of trafficking in a firearm contrary to section 99(2)(a) of the Criminal Code. Father and son came to police attention, through a police agent who was co-operating with the police as part of a large multi-jurisdictional covert investigation targeting controlled substances and firearms, called Project Silkstone.

[14] In August of 2016, the police agent began to communicate with Lauren Babcock, who told the agent about a male named "Dan", a friend of Lauren's from high school, who was in possession of an AK47 that may be for sale. "Dan" is Dan Roberts, the 19 year old son of the accused, Warren Roberts. Over the next few months, at the direction of the police agent, Ms. Babcock sent multiple text messages to Dan Roberts to advise that a third party wanted to purchase the firearm.

[15] The Crown concedes that it took some persuasion from Ms. Babcock to convince Dan Roberts to sell the firearm. Daniel Roberts repeatedly told Ms. Babcock that the firearm wasn't for sale. Daniel Roberts told his father that someone wanted to purchase the firearm, and after several months of text messages and increasingly large offers, Warren Roberts agreed to meet with the buyer.

[16] On December 4, 2016 Lauren Babcock told the police agent that Warren Roberts was interested in selling the AK47. On December 12, 2016 the police agent attended the Roberts' residence at 4 Jackson Road, Toronto, with Lauren Babcock. Lauren introduced the agent to Warren as a young family man with an interest in firearms for target shooting.

Warren Roberts sold the firearm, along with a large capacity banana magazine, two large capacity drum magazines and 27 boxes of ammunition for $6000.00. The police agent paid Warren Roberts in cash. Mr. Roberts was aware that the firearm he sold to the agent was prohibited and he was aware that the transaction was illegal.

[18] Mr. Roberts indicates in his affidavit sworn October 9, 2018 that he and a friend, Steven, purchased 2 Replica AK47 semi-automatic rifles from a sporting goods store around 1987 with a valid FAC as required at the time. Mr. Roberts says that he subsequently sold his own rifle to a man who also had a valid FAC but that his friend Steven kept his rifle for almost 30 years before giving the firearm to a mutual friend named Brian, four years ago. Mr. Roberts says that Brian died in a motorcycle accident in 2015 and Steven asked Mr. Roberts to hold on to the gun for him. Mr. Roberts says he agreed to take the gun and kept it in a closet. He says the gun never left his residence, was never loaded and was never fired while in his possession.

[19] The Crown concedes that Warren Roberts did not acquire the firearm through crime and that, other than holding the firearm for a substantial period of time, there is no evidence of Mr. Warren Roberts or his son Daniel being involved in any criminal activity.

[20] Mr. Roberts says in his affidavit that he had no intent to sell the weapon to any individual who might use it to commit a crime. He believed the buyer owned a recreational property and wanted to use the gun for target practice. Mr. Roberts acknowledges, however, that he did not take any steps to verify who the police agent was, or whether the agent had a valid PAL before or at the time of the sale of the firearm.

[21] Mr. Roberts also says in his affidavit that he was experiencing some financial hardship at the time of the sale. He says he used the $6000.00 he received for the firearm to buy a van.

The Arrest and Bail Conditions

[23] On February 21, 2017 Warren Roberts and Dan Roberts were arrested and jointly charged with one count of weapons trafficking. Father and son spent three days in custody before being released on February 24, 2017.

[24] Warren Roberts was released on a recognizance of bail in the amount of $15,000.00. The conditions of his release required him to reside with his surety, his brother David Roberts, and to obey a curfew between 11 p.m. and 6 a.m. Due to the conditions of his release Warren Roberts was forced to leave a job he held for 25 years. He has lived in a trailer on his brother's property for the past 23 months.

The Guilty Plea

[25] When Mr. Roberts entered his guilty plea on October 25, 2018, the charge against Dan Roberts was withdrawn by the Crown.

Circumstances of the Offender

[26] Warren Roberts is 55 years old. He has one conviction from 1989 for Over 80. He has lived a stable productive life. He was married and has one son. His wife and Daniel's mother, from whom Mr. Roberts was separated, died two months before this incident. Mr. Roberts worked for 25 years for a Sign and Awning Business. He is currently on a leave of absence from this employment due to the bail restrictions that require him to live with his surety.

[27] The pre-sentence report is positive. The author of the pre-sentence report describes Mr. Roberts as "respectful and engaged" throughout the presentence interview process. The author writes that Mr. Roberts "demonstrated empathy regarding his situation and expressed his disappointment in the idea of having a criminal record. The subject appeared to take responsibility for his actions and demonstrated empathy for his son who was also involved with the courts for this charge…. He appeared to demonstrated remorse for his actions and disappointment in himself….. with a commitment to change and continued support, it is believed the subject is suitable for community supervision".

[28] Several character letters were filed in support of Mr. Roberts. Mr. Roberts is described by his brother David, who has also acted as his surety, as having always been "a quiet caring person who will often go out of his way to help friends and family anytime they need anything". Mr. Roberts' former employer, Donavan Goss, writes that he has known Mr. Roberts for 25 years as an employee and peer, and described him as "an honest and caring person who has served our company loyally and well for his whole adult life". Mr. Goss also writes that once if the restriction requiring Mr. Roberts to live with his brother is removed that he would "look to have Warren return to his employment at the company".

Analysis

[29] The Crown argues that this case involves facts that are consistent with a "true crime" scenario and that therefore a sentence of three years in custody is the appropriate sentence. The Crown points out that Mr. Roberts had this illegal gun in his possession for a long time, knew the gun was illegal, and did not have a licence to own or possess any firearm. The Crown argues that while Mr. Roberts may not have wanted the gun to end up in the "wrong hands" he did little to inquire about where the gun was going. He knew only that the gun was being purchased by a friend of a friend of his son. Mr. Roberts sold the gun along with 27 boxes of ammunition containing over 500 rounds and during the interaction with the police agent Mr. Roberts talked to the agent about how he could transform the gun from a semiautomatic rifle to a fully automatic firearm.

[30] There is no question that the illegal sale of a prohibited firearm is a serious offence, and that denunciation and deterrence are the primary sentencing principles for offenders who illegally transfer firearms.

[31] The nature of the crime itself is an aggravating factor here. When Warren Roberts decided to sell his AK47 to a stranger, for cash, he committed a very serious offence. Selling a firearm illegally for financial gain, especially a semiautomatic AK47, clearly creates a risk of serious harm to members of the public. Guns and gun violence threaten the safety and security of our communities. Criminals buy guns illegally and people die because they are targeted or because they are caught in the cross fire.

[32] However, there are a number of mitigating and distinguishing factors the Court must also consider in this case. Mr. Roberts is by all accounts before me a hardworking, kind man and a loving father. He has been a stable contributing member of the community for all of his adult life. He has strong community supports and employment waiting for him. There are no criminal lifestyle issues here and no addiction issues.

[33] Mr. Roberts did not do anything to initiate the sale of his gun, and when he was approached about a potential buyer he was initially reluctant and concerned about the gun falling into the wrong hands. He was approached by a mutual friend of the police agent and his son. Although Mr. Roberts pleaded guilty and did not raise the defence of entrapment, the Crown concedes that Mr. Roberts was initially hesitant to sell, and that the "buyer" was persistent. Mr. Roberts did not acquire the gun through crime and he was not participating in a criminal lifestyle when he sold the gun. When he expressed concern about who the buyer was, he was told that the buyer was a young family man who wanted the gun for target shooting on a recreational property.

[34] Mr. Roberts has been bound by restrictive bail conditions since his release on February 24, 2016. His liberty has been severely impacted. He was forced to leave a job he worked at for 25 years, in order to live with his surety. He has been living in a trailer on his brother's property in an attempt to minimize the inconvenience he is causing his brother and his brother's family. He has been subject to a daily curfew and required to be in his residence between 11 p.m. and 6 a.m. Mr. Roberts has complied with all of his conditions.

[34] A review of the volumes of case law provided to me by Crown and Defence counsel reveals that offenders who are convicted of weapons trafficking and who have prior criminal records, or connections to gang activity, organized crime or a drug subculture, usually receive sentences of over two years. Sentences of less than two years, most often in the 12 to 18 month range, have been imposed in cases involving a single weapons trafficking transaction, by an accused with no prior record: see R v Shobway, [2015] O.J. No. 4424 (Ont CJ), and R v Trepanier, [2016] N.B.J. No. 88 (N.B.P.C.).

[35] In R v Sauve, supra, a case involving a 19 year old accused with no prior record and strong community supports, who trafficked in one handgun, and had been on restrictive bail conditions for 5 years, Justice Lacelle imposed a nine month conditional sentence.

[36] This offence involved a single instance of weapons trafficking by an offender with no criminal involvement who was targeted by a police agent, through a third party acquaintance of the Roberts', who offered to buy the firearm. It took months of persistent contact by the third party before Mr. Roberts agreed to sell his firearm.

[37] Mr. Roberts is an otherwise upstanding citizen and contributing member of the community who committed a serious offence.

[38] Since the mandatory minimum sentence does not apply, the maximum sentence available for this offence is 10 years, and the sentence I intend to impose is less than two years, a conditional sentence is available.

[39] A conditional sentence, which is a sentence of jail, addresses the seriousness of this offence and satisfies the primary sentencing principles of deterrence and denunciation, while recognizing that Mr. Roberts can be safely supervised in the community. A conditional sentence takes into account the distinguishing factors in this case, the circumstances of this offence and this offender, and the restrictive bail conditions Mr. Roberts has abided by for two years. A conditional sentence is in the interests of both Mr. Roberts and will allow Mr. Roberts to work and maintain his relationships with his family and other supports.

[40] In all of the circumstances of this case, I find that a 12 month conditional sentence is a fit sentence.

Conditions of Sentence

[41] The following conditions are imposed as part of the conditional sentence:

• The statutory conditions
• Report to a supervisor today and thereafter as directed
• Reside where directed by the supervisor and abide by a curfew as set by the supervisor
• Remain in Ontario unless the prior written permission from the supervisor has been obtained
• Attend and actively participate in all assessment counseling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor
• Make reasonable efforts to seek and maintain employment
• Complete 100 hours of community service
• No communication direct or indirect with Lauren Babcock and Ryan Gaffney

[42] A DNA order is appropriate here, given the seriousness of this offence. There shall also be a Section 109 weapons prohibition order for 10 years. All items seized by the police shall be forfeited.

[43] Finally, there shall be a Restitution Order in the amount of $6000.00.

Released: January 10, 2019

Signed: Justice E. Deluzio