Court Information

Date: November 27, 2019

File Number: SCA. 9856

Court: Ontario Court of Justice

Parties: Her Majesty the Queen v. Jonathan West

Before: The Honourable Justice S. Latimer

Location: Kitchener, Ontario

Appearances

Crown: B. Schnell, Provincial Crown

Defence: S. Safa, Counsel for Jonathan West

Reasons for Sentence

LATIMER, J. (Orally):

These are my reasons for sentence in Mr. West's matter. Jonathan West has pled guilty to three criminal offences relating to the possession and storage of a variety of firearms he obtained after his mother's and father's passing. These firearms include rifles and handguns, all of which his father lawfully possessed. Mr. West before me, however, possessed only a nonrestricted firearm licence which, very simply stated for present purposes, permitted possession of rifles but not handguns.

The Facts

Mr. West possessed his father's arsenal for approximately eight months until August 11th, 2018, when his possession came to the attention of the authorities when he shot himself with one of his handguns. Mr. West and a friend had brought the weapon to a wooded area and, in attempting to remove the gun from his waistband, it accidentally discharged.

Mr. West was taken to a local hospital where he received medical attention for his injury. The police were notified of the substance of his injury and located the gun inside his vehicle.

This is the substance of the section 94 occupant of a motor vehicle with knowledge of a firearm charge that he has pled guilty to.

Subsequently, the police determined they had an exigent basis to enter Mr. West's home in order to ensure no other unlawful firearms were placing anyone else at risk. Mr. West lived in the home with his wife and their 19-month-old son. The warrantless entry, in my view, was entirely lawful in the circumstances and an example of appropriate and constitutionally compliant police action. The corresponding seizure only extended to items in plain view and was tailored to the particular public safety issue at play. Mr. West was quite right in his decision not to contest this entry and seizure at trial.

The entry and the subsequent warranted search that occurred the following day located a number of rifles and other firearms in the home. Many of these items were carelessly stored, including a loaded handgun in a glass dining hutch behind an unlocked door. Another handgun, this one unloaded, was in a bedside table in the master bedroom. Several rifles were carelessly stored in an unlocked wooden cabinet, and a semiautomatic rifle was found on a closet floor mixed in with some clothes. Mr. West has pleaded guilty to possession offences that relate to the handguns and the careless storage charge relates to the rifle. The agreed statement of facts contains amplified facts beyond what I have just reviewed.

Background

Mr. West has no prior criminal record. This is the first time he has appeared in court. He grew up around firearms and possessed a licence that permitted possession of some of these seized items.

A pre-sentence report was prepared that can properly be described as glowing. Mr. West is a family-oriented man, who was very close to his parents and suffered emotionally following their passing. He is 28 years old and having excelled in school, now runs a flourishing business with his partner's father. The author of the report writes: "He enjoys running his own business and has attainable goals for the future. He presents as pro-social in every area of his life."

The Position of the Parties

Mr. Safa, acknowledging the public safety concerns that flow from Mr. West's reckless possession of the firearms, accepts that these offences warrant a period of custody. However, it is submitted Mr. West, as a person, is a strong candidate for a conditional sentence.

Mr. Iaquinta, in intelligent and knowledgeable submissions, points to prior cases and well-worn principles of general deterrence and denunciation and submits that a one-year jail sentence is required in the present circumstances. There are also some ancillary orders that are not the subject of much dispute.

Legal Principles & Analysis

The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law, and help maintain a just, peaceful and safe society; see section 718.

Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are contained in the Criminal Code. These include things like denunciation; general and specific deterrence; rehabilitation; making reparations to victims of crime; promoting a sense of responsibility in offenders; and, an acknowledgment of the harm they have caused the community and specific victims in our community; see sections 718(a) through (f).

Ultimately, the fundamental principle of sentencing is that a sanction has to be proportionate to the gravity of the offence and the degree of responsibility of the person who committed it; see section 718.1.

This means for this sentence to be appropriate, it must be tailored to Mr. West's circumstances and the circumstances of the offences he has committed. Sentencing at the end of the day is an individualized exercise. In determining the sentence, it is helpful to consider the aggravating and mitigating features presently at play; see section 718.2(a). This would include features of Mr. West's background; features of the offence he has committed; the timing of his plea; and legal direction that I would receive from Parliament or from the higher courts.

In this case, I would point to two in the present circumstances. First, all firearms offences are serious because of the spectre of deadly harm that hovers over unlawful firearm activity. The section 95 offence provision, which addresses restricted or prohibited firearms that are either loaded or possessed in concert with readily accessible ammunition, is the most serious firearm possession offence in the Code.

There is, of course, a wide breadth of conduct caught by this provision, as the Supreme Court of Canada noted in a case called R. v. Nur, 2015 SCC 15, paragraph 82:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end [as the Court of Appeal observed] "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. ... This person is engaged in truly criminal conduct and possesses a real and immediate danger to the public". At this end of this range ... a three-year sentence may be appropriate [at this end of the range.] A little further along ... stands the person whose conduct is less serious and poses less danger; for these offenders three years ... may be disproportionate, but not grossly so. [And] at the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored.

Mr. West, in my view, stands at neither end of the spectrum, but is much closer to the latter, less blameworthy end. There is no suggestion in this case that his possession was linked to any criminality beyond that inherent in his own negligent possession. Notwithstanding the striking down of the old three-year mandatory minimum, which would not have applied in this case in any event because the Crown has properly elected summarily, the appellate courts have been clear that restricted firearm possession is serious and requires judges like me to give serious consideration, paramount consideration, to principles of deterrence and denunciation; see the Court of Appeal in R. v. Smickle, 2014 ONCA 49.

The second, and at first blush, somewhat contradictory appellate principle I advert to comes from a case called R. v. Priest, which is a seminal sentencing decision by Justice Rosenberg on the Court of Appeal. I am particularly aided by Justice Lauwers' review of the case in a decision Mr. Safa provided me, R. v. Caranci, 2012 ONSC 2830. Justice Lauwers sitting on the Superior Court at the time, at paragraph 21, writes:

Mr. Caranci does not have a criminal record. Although I would not describe him as youthful, his rehabilitation prospects are reasonable. Accordingly, I am particularly mindful of the words of Justice Rosenberg in R. v. Priest, that "the duty to explore other dispositions for a first offender before imposing a [jail] sentence is not empty formulism which can be avoided merely be invoking the objective of general deterrence."

Beyond this passage, I should say I have been aided by this decision considerably in providing these reasons. Both parties in this case have provided comprehensive and helpful authorities covering the field of different forms of conduct associated with firearm possession, and different sentences flowing from discharges at the low end, through suspended sentence to conditional sentences and jail. I have been assisted by these cases even if I am not making direct reference to some of them.

Aggravating and Mitigating Features

I would go back to the aggravating and mitigating features. What is aggravating? One, there are multiple firearms possessed. Two, the guns were haphazardly strewn throughout the home. I think most worrisome was the loaded handgun on a shelf in the dining hutch behind the unlocked door. There is a real risk that that gun could have been handled improperly. I am not convinced and I do not believe that the 19-month-old could have accessed that particular gun, and do not find that particular aggravating feature as a fact.

I think it is obvious to point out that children are curious and there is a very real possibility this child could have stumbled upon some of the other firearms carelessly stored in the home.

This is not a comment on parenting. This is a comment on life and our understanding of children. That is an aggravating feature.

Three, Mr. West took one of the guns, the one he shot himself with, out of the home in a vehicle. That more public form of possession carries a different, greater risk of harm. However, I note he has been permitted to plead to the lesser offence, the section 94 offence, which only requires knowledge and not full possession. However, as the facts make plain, it was Mr. West's gun.

On the mitigating side, we have Mr. West's lack of a prior record. We have his otherwise prosocial good character. There is his family support and his placement within a strong family unit. It is obvious to me that incarcerating him for a year would place a significant burden and hardship on his family and his wife, who I consider largely innocent in these proceedings, and his young child.

Regarding moral blameworthiness, I am prepared to accept that the context of this possession, in the months following his parents' death - which I see from the evidence hit him hard - I see that as relevant and somewhat mitigating. Mr. West was not entirely in the right frame of mind to appreciate how unlawful his conduct was. This is not a defence, but in my view is relevant to moral blameworthiness. He has made some bad decisions, indeed, terrible decisions, in a very difficult period of his life.

I accept that he is remorseful, I think profoundly, and I accept that specific deterrence is not an issue. His guilty plea is significant in this case. I accept it was his intention from the outset to do so. To be clear, and there were submissions on this point, I place no weight on his injury. I am not sure if it is mitigating or aggravating and I simply leave it aside. I agree with the Crown that it is a ready example of why Parliament saw fit to ensure gun owners are fit and educated to accept the privilege of gun ownership.

Conclusion

In conclusion, while no case is exclusively about one thing, this case in large part drills down to the following tension. On one side, guns are very dangerous and illegal possession of them is serious. The public needs to be deterred from such unlawful possession and sentencing courts fulfill a role in providing that deterrence.

On the other hand, there is a real, immediate, individual cost to a remorseful, otherwise law abiding and pro-social individual by incarceration that is predominantly, if not exclusively, for the purpose of general deterrence and denunciation. In this case, that would be the result.

Traditional jail is not required for specific deterrence or for any other purpose. A conditional sentence is legally available. The question principally is whether the purpose and principles of sentencing require such a result. Having given the matter considerable thought, I have come to the following conclusion. I am simply not prepared to sacrifice this young family's future on the altar of general deterrence, particularly so when a lesser form of sanction is available and capable of addressing all relevant sentencing principles in this case. General deterrence can be met by a conditional sentence order in the right case; see the Supreme Court in R. v. Proulx, 2000 SCC 5.

Mr. West, I am satisfied, will comply with a conditional sentence, and one can be fashioned to fit his circumstances and the public need to denunciate his conduct, given the significant risk it presented. This option is available because of Mr. West's glowing antecedents and his otherwise good character. Another offender, differently situated, may very well not achieve a similar result.

Frankly, the greatest risk his conduct presented was to his own family. It is fortunate that risk was not realized, or at least to anyone but himself. His partner has been on criminal charges for over a year. Those charges are being withdrawn today. I suspect there has been significant state scrutiny of the family unit. I entirely accept Mr. West appreciates what he risked here and will not place his family in such a situation again.

Sentencing Order

The disposition is a 12-month conditional sentence to be imposed on count 12 (the restricted firearm offence contrary to section 95(a)).

Mr. West has been approved for electronic monitoring. That is a relevant consideration.

Conditions of the Conditional Sentence:

1. You will report today and thereafter as required to a supervisor. You will cooperate with your supervisor and sign any releases necessary to permit supervision, and you must provide proof of compliance with any condition to your supervisor on request.

2. You will live at an address approved of by your supervisor and not change that address without obtaining his or her consent in advance.

3. You will be on home confinement for the first six months of the sentence. You will remain in your residence at all times except:

   • On Saturday between 2:00 and 5:00 p.m., in order to acquire the necessities of life; or
   • For any medical emergencies involving you or any member of your immediate family or your spouse's immediate family; or
   • For going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments; or
   • For going directly to and from or being at any assessment, treatment or counselling sessions.

4. Electronic supervision will be imposed during the home confinement period.

5. You will report immediately to your supervisor for the purpose of arranging your enrollment in the electronic supervision program. You will participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor.

6. You will be on supervision for the six months of house arrest.

7. You are not to possess any weapons as defined by the Criminal Code.

8. There is a section 109 weapons prohibition. There are categories of weapons you are prohibited from possessing for either 10 years for one category, and life for the other.

9. Concurrent sentences are imposed on the remaining counts.

10. A forfeiture order has been signed on a previous date for the firearms to be transferred.

11. Charges against the co-accused are being withdrawn.

Released: November 27, 2019

Justice S. Latimer