R. v. Spicher

Ontario Court of Justice

Date: July 28, 2020

Parties

Between:

Her Majesty the Queen

— AND —

Ryan Spicher

Before: Justice B. Green

Counsel:

• M. Newell, for the Crown
• J. Zita, for the Defendant, Mr. Spicher

Heard: In Writing

Reasons for Sentence

Green J.:

A. Introduction

[1] Following a series of judicial pretrials with the crown and Mr. Spicher's former defence counsel, he entered pleas of guilty to four counts of transferring firearms between September 4th and September 18th, 2019. He also plead guilty to one global count of possession of the proceeds of these crimes. While the crown proceeded with these specific counts, it was agreed that I will consider all of the admitted facts when determining the appropriate sentence. Please see: R. v. Garcia and Silva, [1970] 1 O.R. 821 (Ont.C.A.) and section 725 of the Criminal Code.

[2] Both counsel and the crown prepared thorough written submissions. Defence counsel submitted that the sentence should be three years incarceration less credit for the time served and less additional credit for the abysmal living conditions for detainees in custody at the Central East Correctional Centre. Counsel also advocated for a further sentence reduction because of the collateral consequences of being incarcerated during a global pandemic while forced to reside with multiple individuals thereby causing Mr. Spicher added emotional stress and constant worries about possible outbreaks in the institution.

[3] The crown advocated for a sentence of nine years in the penitentiary in light of the very serious nature of the offences. In addition to the penitentiary sentence, the crown sought ancillary orders of a lifetime section 109 weapons prohibition, a DNA order and a forfeiture order for all items seized during this investigation.

[4] A detailed review of the aggravating and mitigating facts, a contextualized consideration of the various applicable sentencing principles and an analysis of any comparable precedents is essential to arrive at a just sentence for this offender for these offences.

B. Summary of the Facts

i. Circumstances of the Offences

[5] The plea proceeded by way of an agreed statement of facts, however Mr. Spicher made some qualifications when he was asked whether he was prepared to admit the facts. The crown agreed that I can consider the additional facts provided by Mr. Spicher. The admitted facts and qualifications were as follows:

On September 4th, 2019, Detective Constable (D.C.) Westcott, acting in an undercover capacity, responded to a Kijiji ad posted by Ryan Spicher. He was selling camping equipment and he also had bolts for a crossbow for sale. D.C. Westcott inquired whether Mr. Spicher was selling the crossbow to go with the bolts. Mr. Spicher texted his home address to D.C. Westcott. Mr. Spicher met with D.C. Westcott that evening at his home. Mr. Spicher asked if D.C. Westcott was looking for a cross bow. The officer replied that he was looking for a crossbow or something similar. Mr. Spicher replied, "well I have a shotgun for sale if you're not a cop".

Mr. Spicher sought to qualify these facts during the plea. He indicated that they were in his living room when they were having this conversation and there was a shotgun present in the room that was locked up. The presence of the shotgun led to the discussion about selling a firearm.

Using pre-recorded buy money, D.C. Westcott purchased a Remington 780 Magnum 12 Gauge shotgun and 5 rounds of 12-gauge shotgun shells from Mr. Spicher for $350.

On September 5th, 2019, D.C. Westcott, texted Mr. Spicher indicating that he was interested in purchasing additional firearms. Mr. Spicher initially told D.C. Westcott that he would reach out to someone who was selling them. Mr. Spicher then called back, reporting that the guns for sale were a Lee Enfield sniper rifle and "an AK-47, but semi-automatic". Mr. Spicher told D.C. Westcott that if the guns didn't come with ammunition, he would purchase the ammunition for Westcott. A short while later, Mr. Spicher called D.C. Westcott, advising that "the guy" couldn't come through, but that Mr. Spicher would still take care of D.C. Westcott.

Ultimately, D.C. Westcott and Mr. Spicher drove to Gagnon Sports to buy the guns. For $1300 in pre-recorded buy money, Mr. Spicher sold D.C. Westcott two shotguns and ammunition: a Norinco 12GA Tactical Shotgun, a Revolution Arms Pump Action 12GA Shotgun and two boxes of 12GA shotgun shells.

On September 6th, 2019, Mr. Spicher called D.C. Westcott. D.C. Westcott missed the call and called him back. There was a conversation about getting more guns. While the crown alleged Mr. Spicher initiated this conversation, Mr. Spicher claimed the officer asked him about purchasing more guns. The crown did not seek to prove this aggravating fact.

D.C. Westcott told the accused that he would call his customer and find out if he had the money ready. D.C. Westcott told Mr. Spicher that "his client" wanted a GSG gun. Mr. Spicher called back, reporting that they would have to drive to Richmond Hill to get the gun. He proposed instead that a different model could be purchased in Port Perry. They ultimately arranged for D.C. Westcott to drive Mr. Spicher to William's Arms in Port Perry, Ontario. For $1150, Mr. Spicher provided D.C. Westcott with a 22 Caliber GSG-MP0 rifle with a Serial number BL43098, and 4 boxes of 22 caliber ammunition.

On September 18th, 2019, Mr. Spicher sold D.C. Westcott a fifth gun. For $1175, Mr. Spicher provided D.C. Westcott with an ISSC MK22 22 Cal. tactical rifle. Mr. Spicher purchased the rifle from Firearms Outlet Canada, while D.C. Westcott waited in the parking lot.

On November 14th, 2019 Durham Regional Police executed a search warrant at Mr. Spicher's residence. He was arrested in relation to various firearms offences at that time. During the search of his residence the police seized a non-restricted .22 Caliber Rifle Ser#72B83791 and 38 rounds of .270 Caliber Ammunition.

The crown included pictures of all of the firearms with the agreed statement of facts. All of the guns were long guns, but the last two guns were particularly intimidating and terrifying looking weapons.

Mr. Spicher's original counsel submitted additional facts at the behest of Mr. Spicher. He indicated that Mr. Spicher was a lawful gun owner at the time of these offences. In addition, while Mr. Spicher did not dispute that he received the various payments, most of that money was used to purchase the guns and there was only a "little bit of profit" for Mr. Spicher.

[6] In total, Mr. Spicher sold five deadly weapons to a complete stranger without any regard for what these weapons would be used for or any apparent concern about the potential for the commission of crimes, loss of life, bodily harm or the carnage that could be caused using these firearms. The crown referenced one case that tragically demonstrates the dangerousness and callousness of trafficking in firearms because of the devastating potential of these weapons. In R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (Ont.S.C.J.), the accused sold a number of guns to an acquaintance, Mr. Dellen Millard, who used these weapons to commit crimes including at least two murders.

[7] These are exceptionally serious offences. However, in order to determine the appropriate sentence, I must also consider Mr. Spicher's personal circumstances, the mitigating factors and his potential for rehabilitation.

ii. Circumstances of the Offender

[8] Mr. Spicher is forty-two years old. He has a lengthy criminal record that commenced in the early 1990's as a youth and continued on through to 2019. At the time of these offences, he was bound by two separate probation orders as a result of a conviction in November of 2017 for possession of a schedule 1 substance for which he received a sentence of 45 days and probation for two years and two convictions from August 27th of 2019 for theft and breach of probation for which he received a suspended sentence and fifteen months of probation. Within two weeks of receiving a suspended sentence and an additional period of probation, Mr. Spicher was already reoffending.

[9] Despite his antecedents, Mr. Spicher was a licenced gun owner at the time of these offences. It is shocking that he was issued a licence to own firearms with his criminal record. He was convicted of robberies as a youth. In 2000, he was sentenced to 5 months incarceration and 2 years of probation for adult convictions for assault, assault causing bodily harm and assault with intent to resist arrest. In 2010, he was convicted of mischief and 2 counts of assault with intent to resist arrest for which he received another period of incarceration of 80 days and more probation. Presumably, the sentencing courts would have issued firearm prohibitions for these offences of violence. In addition, he has two convictions for possession of drugs in 2014 and 2017.

[10] Mr. Spicher should never have been issued a licence to own deadly weapons. Nevertheless, he was trusted with a licence and he abused that privilege.

[11] Mr. Spicher had a positive upbringing with a loving and supportive home life. Sadly, he was the victim of two different deviant predators, and he was sexually abused as a child. These scarring experiences lead to pent up anger and subsequently contributed, in part, to his drug abuse.

[12] As a youth, he struggled with behavioural and psychological issues as well as learning disabilities while in school. His parents chose not to get medication to help him cope with these challenges. Mr. Spicher's mother candidly admitted that the lack of treatment for his disabilities exacerbated his inability to function in a school setting. He was eventually expelled from school. He has not attained his high school diploma.

[13] At 20 years old, he became involved with a young woman and they have been together ever since. She has been his life partner, his wife and best friend for over two decades. They share three children who are now 20, 15 and 13 years old. Although he has been described as a loving parent, he has not been an ideal parent as a result of his offending behaviour and addictions. As a result, child protection agencies have been involved with their children over the years.

[14] Mr. Spicher underwent surgery at the age of twenty-seven. He was prescribed painkillers which lead to his ongoing battle with drug addiction. Both Mr. Spicher and his wife struggle with long standing addiction issues. Currently, their children are residing with different family members because Mr. Spicher's wife was the victim of a break and enter and an assault while he was in custody. Mr. Spicher and his spouse associate with criminals and unsavoury characters when they are using drugs and she feels vulnerable without her husband's presence in their home. Mr. Spicher is frustrated and upset that he has been unable to protect his wife while he is in custody.

[15] Mr. Spicher advised that "there was a period of approximately six years when he was not using and then in 2019, he relapsed and started using crack cocaine again." This self professed sobriety is difficult to reconcile with his convictions for possession of drugs in 2014 and 2017 and his mother's statements to the author of the presentence report that illicit drugs have been an ongoing issue for years. Both Mr. Spicher's mother and his wife spoke very highly of him as a person. He was described as loving, caring and funny. They both acknowledged however, that substance abuse has been a significant issue for him for over a decade and it has negatively impacted every aspect of his life.

[16] Mr. Spicher stated in the pre-sentence report that both he and his wife were clean in 2019 and it was "supposed to be the best year ever" but "everything came crashing down". They were having problems at home and his wife started abusing drugs. As a result, he started using drugs again and "it turned really bad".

[17] Mr. Spicher tried to address his addiction issues over the years. He has been on the methadone program for twelve years, but he relapsed despite the benefits of this program. In terms of Mr. Spicher's potential for rehabilitation, the author of the presentence report noted that he has been "consistently on and off probation for most of his adult life". While his reporting habits were described as "fair", he "often incurred new charges during his probation periods". In addition, he has had many opportunities to participate in counselling, but he has only "minimally complied" and the probation officer also reported that he continued to abuse illicit drugs. The probation officer observed that despite periods of incarceration, he "appears to maintain a criminal attitude noting he feels more accepted and powerful when incarcerated than when he is free".

[18] Although Mr. Spicher was employed in the past, including a period of time when he owned his own company, his addiction to drugs has interfered with his ability to maintain steady employment. For the past ten years, he primarily relied on Ontario Works to support himself and his family. Once he is released from custody, his mother advised that there is potential for future employment working with her partner.

[19] Mr. Spicher acknowledged in the pre-sentence report that these are serious offences and he realizes that the guns could have "gone to the wrong person, people could have gotten hurt." However, he initially minimized his responsibility and rationalized his conduct by repetitively stating that he was "entrapped" by the police officer into committing these offences.

[20] Mr. Spicher posted an advertisement in his own name for the sale of "camping equipment" which included the sale of a cross bow bolt. I accept that the crown has not established the aggravating factor that he originally posted this ad with the intention selling firearms. However, the police had reasonable grounds to suspect that he was prepared to sell the weapon that went along with the bolt. Depending on the dimensions and capabilities of a cross bow, these weapons may be illegal to own or sell and they are dangerous.

[21] The officer was acting on reasonable suspicion when he inquired about the sale of a cross bow "or something similar". Mr. Spicher may not have originally intended to sell firearms but, he invited a complete stranger into his home to buy a cross bow and then he chose to offer to sell a gun to that same stranger during their conversation as long as D.C. Westcott wasn't a police officer. Mr. Spicher knew that what he was doing was both morally wrong and illegal because he made the offhand remark about whether the person was a police officer, but he did it anyways. He saw an opportunity to make quick money and he sold a gun, fully aware of the potentially devastating consequences. It was only after Mr. Spicher offered to sell the officer the first gun, that the officer presented further opportunities to sell more guns.

[22] In R. v. Ahmad, 2020 SCC 11, [2020] S.C.J. No. 11 (S.C.C.), the Supreme Court of Canada recently addressed the defence of entrapment. Based on the admitted facts in this case, the police were not engaged in random virtue testing or preying on Mr. Spicher's vulnerabilities to entice him into committing criminal offences. Rather, the police acted on a reasonable suspicion when they were investigating Mr. Spicher and it was his idea to sell a gun.

[23] Since the presentence report, Mr. Spicher has had further time to reflect on his conduct. He acknowledged his responsibility for making these terrible choices and repetitively expressed his remorse to the court. He feels that his judgement was substantially impaired at the time of these offences by his drug abuse. I accept that Mr. Spicher committed these crimes for financial gain to fund his drug addiction which contributed to his poor judgement. He is ashamed, embarrassed and regretful for throwing his life away.

[24] It is a significantly mitigating fact that Mr. Spicher entered pleas of guilty at the first available opportunity in spite of his reservations about the police conduct and pursuing any associated available defences. The pleas of guilty were manifestations of the sincerity of his remorse and his acceptance of responsibility for these offences.

[25] Finally, I acknowledge that Mr. Spicher has "found God" while he has been incarcerated. He reads the bible daily and intends to be more religious in future. He obtained three bible study certificates. He has plenty of time to devote to reading the bible in his cell because the living conditions at the Central East Correctional Centre are terrible and there is little else to do for inmates.

C. Legal Analysis

i. The Aggravating and Mitigating Factors

[26] In order to contextualize the applicable sentencing principles, it is important to highlight the aggravating and mitigating factors.

[27] In summary, the aggravating factors are as follows:

• He was selling firearms that are clearly designed for intimidation and capable of significant harm and/or death;
• He sold ammunition with the firearms;
• This was not a "one-off" situation. Mr. Spicher sold five different firearms to a complete stranger over a period of two weeks;
• He was not the middle man. He was proactively involved as both the supplier and the seller of these guns for profit;
• While the initial offence was impulsive, thereafter, the offences were premeditated. He accompanied the undercover officer to various gun stores to purchase the firearms;
• He was completely apathetic to the potential consequences of his conduct when it was blatantly obvious that this purchaser wanted to buy firearms unlawfully and for nefarious purposes. While these were long guns as opposed to handguns, they were particularly intimidating. He escalated from selling shotguns to tactical rifles;
• Mr. Spicher had plenty of time to reflect on his conduct between each transaction. Nevertheless, he made informed choices to continue to sell more guns without regard for the potential outcome;
• Mr. Spicher was bound by two probation orders at the time of these offences to keep the peace and be of good behaviour. Moreover, the first offence of selling firearms was committed within days of his last conviction; and
• He has a significant criminal record.

[28] I note however, that there are a number of aggravating factors that are not present in this case:

• The offences were not sophisticated. Mr. Spicher did not engage in any forensic counter-measures. He used his own contact information in the advertisement. He used his own identification to purchase firearms which would have returned to him as the registered owner. He did not tamper with the guns in any way to remove serial numbers;
• These offences were not committed for the benefit of any criminal organization, a gang or to enable or to assist with trafficking in narcotics; and
• Fortunately, no one was injured as a result of these offences. The guns were not used during the commission of any crimes and they were always in the possession of the police.

[29] The mitigating factors are:

• The pleas of guilty;
• Mr. Spicher has no related criminal antecedents in terms of weapons offences;
• A prescription for pain medication lead to a life long battle with drug addiction. The offences initially commenced as an apparently impulsive crime of opportunity to fund a serious drug addiction;
• Mr. Spicher was the victim of sexual abuse which has contributed to his offending behaviour in the past. He struggles with untreated learning disabilities and mental health issues;
• Mr. Spicher is committed to rehabilitation and sobriety once he is released from jail. Although I accept Mr. Spicher's expressed intention to stay clean, his prospects for rehabilitation are questionable in light of his lengthy record, his past performance on probation and the fact that he was on two probation orders at the time of these offences. In addition, his claims that he was sober for six years prior to 2019 are inconsistent with his drug convictions, his sporadic work history and collateral sources;
• Mr. Spicher's mother is very supportive and she is willing to assist him with securing employment when he is released from custody; and
• Although Mr. Spicher's wife is also supportive and wants to be reunited with him as soon as possible, their shared drug addiction is toxic and potentially detrimental to any commitment that he has to sobriety. If she continues to abuse drugs while they are a couple, the temptation for Mr. Spicher will be overwhelming.

[30] To arrive at a just sanction that balances the competing considerations of the aggravating circumstances of the offence and the mitigating circumstances of this offender, I must consider the guiding sentencing principles and any similar sentencing precedents.

ii. The Purposes and Principles of Sentencing

[31] 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 acknowledgment of the harm done to victims and to the community.

[32] Depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court's decision.

[33] In countless decisions, courts across Canada have repetitively stated that society must be protected from criminals arming themselves with these deadly weapons. These offences are abhorrent, antithetical to our cherished Canadian social mores and threaten the safety and security of our communities. It is unquestionable that the primary principles of sentencing that will guide my decision are denunciation and deterrence. In R. v. Abdullahi, 2015 ONSC 3784, [2015] O.J. No. 3442 at paras. 33 and 34 (Ont.S.C.J.), Justice Trafford eloquently explained that:

The possession of a firearm may lead, directly or indirectly, to a random or intentional act of violence, including the death of an innocent person in the area of any confrontation involving the use of the firearm. Firearms are used to further a criminal intent. Unforeseen provocative circumstances may lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation and societal consequences that go with it. ...

The trafficking of firearms is a necessary pre-condition to such use in the community. It is crime to facilitate crime. Those who buy and sell firearms know the risk of serious bodily harm or death inherent in their eventual use on the streets in connection with drug deals, robberies, homicides and other crimes of violence. Nevertheless, they proceed to deal in them for financial or other reasons. While such trafficking may not make such dealers parties to the many crimes committed by the ultimate users of the firearms, such trafficking is an indispensable step in the chain of events leading to such tragedy on the streets. For these reasons, the trafficking of firearms attracts the same emphasis on general and specific deterrence and denunciation as do the crimes of violence committed by the actual users of the firearms in my view.

[34] The only guaranteed way to prevent gun violence is to cut off the supply of guns. One of the means to accomplish this worthy goal is to consistently sentence gun traffickers to exemplary custodial sentences so that the potential profit from selling guns is greatly outweighed by the personal assumption of risk for the traffickers of losing their liberty for substantial periods of time.

[35] While denunciation and deterrence are undoubtedly the primary goals, I have to also consider specific deterrence and Mr. Spicher's potential for rehabilitation. In addition, I have to be mindful of the personal circumstances of this offender.

iii. The Principle of Restraint

[36] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) explained:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[37] Mr. Spicher is not a first offender and he has received custodial sentences in the past. However, he does not have any convictions for weapons offences and the longest period of time that he has ever been incarcerated as an adult was for five months twenty years ago. Mr. Spicher's most recent custodial sentence for a drug offence was for forty-five days. He has never been sentenced to serve time in a penitentiary. Accordingly, Mr. Spicher's first penitentiary sentence should be the shortest period of incarceration that fairly achieves all of the sentencing objectives.

[38] In order to make an informed decision about the length of Mr. Spicher's sentence of incarceration, it is essential to review any similar authorities that have considered the appropriate sentence range for trafficking in firearms.

iv. The Principle of Parity

[39] Subsection 718.2 (a) of the Criminal Code codified the long standing principle of parity that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

[40] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find similar facts. Ultimately, considering the unfortunately countless ways to commit any offence and the individuality of each offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para 92 (S.C.C.):

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[41] Both counsel and the crown provided numerous persuasive authorities to support their sentencing submissions. While I reviewed all of them, many of the cases were not helpful because of substantially distinguishing facts or the sentence was the result of a joint submission or the outcome was influenced by the positions advocated by counsel and the crown.

[42] I note that all of the cases that were provided by the crown to support a sentence of nine years incarceration involved substantially aggravating facts that are not present in this case. For example, the offenders were a part of criminal organizations or there was a combination of drug offences and firearms offences or the offenders were on prohibition orders at the time of the offences or they were proactively engaged in the sale of firearms. Worse yet, in some of the cases relied on by the crown, the guns were actually used to commit crimes, kill people or the guns were not recovered and still presented an ongoing danger to the community.

[43] The facts in every case relied on by the crown clearly exceeded the criminal culpability of this offender in these circumstances. Moreover, a number of the precedents pre-dated various recent decisions that have struck down the mandatory minimum penalties for these offences. The sentence ranges in the older decisions should be considered with some caution because of the inflationary floor created by minimum sentences.

[44] Similarly, a number of the cases relied on by counsel for Mr. Spicher were factually distinguishable because the offenders had no criminal records and/or were youthful and/or they lead otherwise pro-social lifestyles. Mr. Spicher has not led an exemplary life. He is not young, and he has a record.

[45] In some of the other cases relied on by counsel, the offenders were not directly or solely involved in the sale of the firearms. Mr. Spicher was not the proverbial middle man. He was both the supplier of the guns and he directly sold these guns, along with ammunition, to the buyer for his own profit. Finally, I found that the sentences in many of the decisions relied on by counsel were influenced by joint submissions or by the positions advocated by the crown or the uniquely mitigating circumstances of the offender.

[46] For example, counsel relied on the case of R. v. Bajwa, [2020] O.J. No. 162 (Ont.S.C.J.). This case is clearly factually distinguishable. Moreover, a conditional sentence of two years less a day for trafficking in firearms is highly unusual and undeniably outside the normal range of sentences for gun crimes.

[47] In R. v. Sampogna, [2020] O.J. No. 692 (Ont.S.C.J.), Justice Goldstein reviewed a number of authorities and concluded that "firearms trafficking, and possession of illegal firearms requires an exemplary sentence even for the most positive offender. A penitentiary sentence for a single offence involving the most sympathetic offender is usually required." I agree that a penitentiary sentence is absolutely essential in this case with this offender.

[48] I reviewed dozens of sentencing precedents which is a sad reflection of the prevalence of gun crimes. I found the following decisions provided some guidance with respect to the applicable sentence ranges:

R. v. Marakah, 2015 ONSC 1576, [2015] O.J. No. 1155 (Ont.S.C.J.): The Court observed at para 26 that, "while there is limited jurisprudence in relation to sentences imposed for multiple counts of trafficking, it is clear from the case law provided by counsel that the range appears to be 4 and 9 years' incarceration in the penitentiary." I note this case was decided before the mandatory minimums were struck down.

R. v. Dufour, 2015 ONCA 426, [2015] O.J. No. 3087 (Ont.C.A.): The accused was a drug addict. She broke into a home and stole a gun. She sold one gun to her dealer in exchange for drugs and money. She had no related record. She had a very difficult life and she had four children. The crown appealed the sentence because it was illegal. The Court of Appeal found at para. 9 that:

The offences were more serious than those committed in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, for example, where the offender took a picture of himself holding a loaded firearm inside an apartment, for which a sentence of two years less a day was imposed on appeal, but stayed. Here, the gravity of the offences committed by the respondent justifies the three-year global sentence requested by the Crown, despite the mitigating factors in the respondent's favour.

R. v. Hewitt, 2018 ONCA 561, [2018] O.J. No. 3367 (Ont.C.A.): As a result of a joint submission, the accused was sentenced to the mandatory minimum sentence of 3 years for selling 9 long guns to an undercover officer. Ms. Hewitt appealed her sentence because she sought to challenge to the mandatory minimums. The court found at paragraphs 6 and 7 that:

The most significant mitigating factors here include the appellant's guilty plea, her very troubled and personal history, and the fact that she was a first-time offender when she committed the index offence. These factors have to be balanced against the seriously aggravating features of this case. These include that the appellant transferred 9 non-restricted long guns, some without serial numbers, and at least one of which was stolen; she admitted that she asked for payment and admitted that she suspected the guns were stolen; and that, at the time of transfer, she was subject to a prohibition order against possessing any weapons.

The sentence imposed was within the range of sentences for similar offences and similar offenders. It follows that even if the mandatory minimum did not apply, the sentence was fit.

R. v. Hanse, [2019] O.J. No. 1418 (Ont.S.C.J.): Justice Molloy reviewed the Court of Appeal's decision in R. v. Hersi, which dealt with firearms trafficking within a criminal organization. The Court observed at para 42 that "quite apart from the criminal organization involvement, Clark J. sentenced these offenders to 5 years for the firearm trafficking offence."

R. v. Cass, [2019] O.J. No. 6352 (Ont.S.C.J.): The accused falsely reported that 10 handguns that he was licenced to own had been stolen from his home. He actually sold the firearms to his drug dealer in exchange for cocaine. Some of the guns were linked to criminal investigations. Mr. Cass was 55 years old. He had no record despite battling a life long drug addiction to cocaine. Prior to sentencing, Mr. Cass turned his life completely around. He invested in significant rehabilitative counseling, he secured employment and stable housing. The court found at paragraphs 29 and 30 that:

Despite the absence of a mandatory minimum, a conviction for weapons trafficking almost always warrants a substantial period of imprisonment. As Justice D.E. Harris explained in R. v. Kawal, 2018 ONSC 7531, at para. 16, general deterrence and denunciation is a "central and vital consideration" in sentencing, because the danger handguns pose to the community cannot be overstated, and "[w]ord must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences". Although Kawal involved weapons possession, this rationale applies equally if not more forcefully to weapons trafficking.

In R. v. Stover, Hamilton J. did an extensive review of sentences imposed for weapons trafficking across Canada. The sentences ranged from three to eight years in prison…

The Court decided that a sentence of four years was fit considering Mr. Cass' lack of any criminal antecedents but went on to find at paragraph 56 that "were it not for your remorse, for the role that your addiction played in your conduct, and for the efforts you have made to rehabilitate yourself over the past two years, I would have sentenced you to five years in jail on these charges."

R. v. Sampogna, [2020] O.J. No. 692 (Ont.S.C.J.): Mr. Sampogna sold a firearm to a person the police were investigating for drug trafficking. The gun was a 9mm Luger semi-automatic rifle. He also transferred 50 rounds of 9mm ammunition. The drug dealer sold the firearm and ammunition to an undercover police officer. The police executed a search warrant and seized several firearms for which he did not have a valid registration certificate. He was a 57-year-old business owner. He had no record. He had a supportive family and many positive attributes.

The Court concluded at paragraph 30 that: "in my view, the appropriate ranges of sentence for trafficking in a single firearm where it is not a mere regulatory infraction is three to five years, depending on the offender and the firearm."

The court acknowledged that the "global range of sentence of 6-7 years for all of the convictions as suggested by the Crown is certainly within the range." However, the court went on to find at para 32 that:

When I weigh the principles of general and specific deterrence, the principle of rehabilitation, examine cases of similar offenders for similar offences, and apply the totality principle I find that 5 years in the penitentiary is the appropriate sentence. I say this because I think a total of 6-7 years is too high for this particular offender: see Farah at para. 32. On the other hand, anything less than a global sentence in the range of 5 years will fail to address the principle of general deterrence.

[49] After reviewing all of these authorities, absent exceptionally mitigating or aggravating circumstances, the range of sentencing for trafficking in firearm(s) is between 3 to 9 years in the penitentiary even for first offenders. In highly unusual cases with exceptionally mitigating circumstances, there are a few sentences below this range. In contrast, if the offender is acting on behalf of a criminal organization or the guns were used during the commission of crimes, the sentencing trend is at the upper end of the range or even higher depending on the offender's criminal antecedents.

[50] The position advocated by counsel of three years is far too lenient considering the aggravating factors in this case and Mr. Spicher's antecedents. Concomitantly, the crown's position of nine years, particularly in light of the plea of guilty, is disproportionately severe.

[51] Sentencing precedents are, of course, intended to provide me with a guideline as to the range of sentences. I can order a sentence outside this range if the unique facts justify it. As the Supreme Court of Canada recently acknowledged in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 at para. 37 (S.C.C.):

This Court has repeatedly held that sentencing ranges and starting points are guidelines, not hard and fast rules. Appellate courts cannot treat the departure from or failure to refer to a range of sentence or starting point as an error in principle. Nor can they intervene simply because the sentence is different from the sentence that would have been reached had the range of sentence or starting point been applied. Ranges of sentence and starting points cannot be binding in either theory or practice, and appellate courts cannot interpret or apply the standard of review to enforce them, contrary to R. v. Arcand, 2010 ABCA 363, 40 Alta. L.R. (5th) 199, at paras. 116-18 and 273. As this Court held in Lacasse, to do so would be to usurp the role of Parliament in creating categories of offences.

[52] There is nothing in this case that would justify sentencing Mr. Spicher outside the customary range of sentence. The circumstances of these offences and this offender do not justify a sentence at either end of the spectrum. However, he committed multiple offences that individually merit significant periods of custody.

v. Totality

[53] Mr. Spicher committed a series of offences over a relatively short period of time. Each individual offence of trafficking in a firearm in this case merits a penitentiary sentence. If I were to order him to serve consecutive sentences for each offence, it would send a very strong message that an offender will not benefit from a lesser sanction for committing multiple offences. However, if I were to sentence him to four consecutive penitentiary sentences, the total sentence would be excessive.

[54] As noted, one of the foundational principles of sentencing is proportionality that: "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Simply stated, the punishment must fit the crime. It must reflect the gravity of the offence and the moral blameworthiness of the individual offender. An important means to ensure that the overall sentence is proportionate is to consider the principle of totality. Section 718.2 (c) of the Criminal Code requires me to consider that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh".

[55] In R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 (S.C.C.), Chief Justice Lamer explained the rationale underlying the totality principle and its nexus with proportionality:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, [4th ed. (Toronto: Butterworths, 1994)], at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects

[56] The overall sentence must be fair to the public who need protection from these crimes, and it must be fair to the offender. The period of incarceration must reflect all sentencing goals, but the combined sentences cannot deprive Mr. Spicher of hope for the future or unjustifiably diminish his prospects for rehabilitation. As a result, it is quite challenging to attribute concurrent or consecutive sentences that truly reflect the seriousness of each individual crime and the unique circumstances of this offender.

[57] In R. v. R.B., 2013 ONCA 36, [2013] O.J. No. 278 at para. 30 (Ont.C.A.), the Court of Appeal described the best method to determine a fit sentence when sentencing an offender for multiple crimes:

The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed.

D. The Sentence

[58] The most serious offences in this case were Mr. Spicher's first offer to sell a shotgun on September 4th (count 1), the sale of ammunition with the firearms (count 5) and the type of firearm sold on September 18th (count 11). After considering the aggravating and mitigating factors, the principles of sentencing and the guiding legal precedents, I have decided that a fit sentence that balances all of these considerations is six years in the penitentiary less any credit for pre-trial custody and additional credit for the conditions at the Central East Correctional Center (hereinafter referred to as the C.E.C.C.).

i. Credit for Pretrial Custody and the Conditions in Custody

[59] Mr. Spicher was arrested on November 14th, 2019. As of July 28th, he will have been in custody for a total of 258 real days. Pursuant to the Supreme Court of Canada's decision in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.), he will be awarded credit of 1.5 days for each day he spent in pretrial custody which will bring the total pretrial custody credit to 387 days.

[60] The other issues to be addressed are how much additional credit should be assigned to his pretrial custody because of the conditions at C.E.C.C., otherwise known as Duncan credit, and whether the COVID-19 pandemic should impact the overall sentencing as a collateral factor.

[61] Despite repetitive spirited expressions of judicial condemnation about the conditions at the C.E.C.C., absolutely nothing has been done by the Ministry of the Solicitor General to address the perpetually occurring lock downs as a result of "staff shortages". It is appalling that human beings are seemingly being used as pawns in a labour dispute.

[62] Every judge in this jurisdiction regularly receives reports about the treatment of people who are being subjected to inhumane conditions due to these frequent lock downs. While prisoners are locked down, they are denied basic human dignities like showering on a regular basis or having access to clean clothes, clean bed linen or clean towels. They are unable to maintain contact with their support systems outside the jail and often times they have difficulty communicating with their lawyers. They don't have access to some programs that may assist with addressing their underlying issues. These abysmal conditions for inmates are inexcusable and intolerable.

[63] Once again, the Ontario Court of Appeal addressed the credit that can be granted as a result of the terrible conditions in pre-trial detention centers in the recent decision of R. v. Brown, 2020 ONCA 196, [2020] O.J. No. 116 at para. 11 and 12 (Ont.C.A.):

On appeal, duty counsel on behalf of the appellant submitted that the credit of four months was so low that it amounted to an error in law resulting in an unfit sentence. The appropriate Duncan credit, he argued, should have been in the realm of 1.5:1 in accordance with more recent case law that has addressed the ongoing, serious conditions at the Toronto South Detention Centre that continue to give rise to claims for significant Duncan credit. Counsel referred to the decisions of Kelly J. in R. v. Ward-Jackson, 2018 ONSC 178; of Molloy J. in R. v. Fermah, 2019 ONSC 3597, 56 C.R. (7th) 154; and the recent decision of Schreck J. in R. v. Persad, 2020 ONSC 188.

We agree that the cases referred to by duty counsel indicate that the conditions at Toronto South have not improved and that sentencing judges are recognizing the seriousness of the situation by giving significantly enhanced Duncan credit. The 4 months' credit in this case is lower than the thrust of more recent reported decisions of the Superior Court: see R. v. Charley, 2019 ONSC 6490, at paras. 59-68.

[64] In R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95 (Ont.S.C.J.), a decision that was cited favorably by the Ontario Court of Appeal in R. v. Brown, supra, Justice Schreck commenced his judgement with the following quote: "... [N]o one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones." His Honour went on to observe at para. 2 that:

Mr. Persad was locked down for 47% of the time he was at the TSDC. During those periods, he was confined to his cell and sometimes went for days without access to a telephone, shower or fresh air. The reason for the vast majority of the lockdowns was staffing shortages. The problem of frequent lockdowns due to staff shortages has been the subject of repeated expressions of concern by the judiciary over the past four years to the effect that the conditions at the TSDC are inhumane and fail to comport with basic standards of human decency. It has become clear that the Ministry of the Solicitor General, which is responsible for the operation of the TSDC, has chosen to ignore that judicial condemnation.

The following reasons explain why I have concluded that the usual enhanced credit of one half to one day per day in lockdown is insufficient to promote the community's respect for the law and our shared values in the face of the Ministry's refusal to act. More is required to give effect to those values.

And further on at paragraph 27:

It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody: R. v. Duncan, 2016 ONCA 754, at para. 6. This follows from the principles of individualization, parity and proportionality. Where an offender has been subject to particularly harsh presentence custody, he has been subject to consequences resulting from the offence that have a more significant impact on him. Like collateral consequences such as immigration consequences, this additional impact must be considered to ensure that the sentence is proportionate and tailored to the individual circumstances of the offender.

And finally, at paragraph 37:

There is of course no mathematical formula for determining the appropriate credit. Having considered the conditions of Mr. Persad's presentence custody as well as the Ministry's persistent refusal to heed the repeated admonitions of this court that those conditions are intolerable, I have decided that Mr. Persad is entitled to a further one and a half days of credit for each day spent in lockdown. The increase in credit is intended to communicate this court's affirmation of our community's most basic values that have been shamefully ignored in this case. [emphasis mine]

[65] The way that these vulnerable inmates are treated at C.E.C.C. is deplorable and a shame. They are completely powerless to do anything to ameliorate their living conditions. It cannot be emphasized strenuously enough that many of the detainees at C.E.C.C. are awaiting trial and they are presumptively innocent of any wrongdoing. They may be not be found guilty of any crime, but they are treated worse than convicted offenders serving sentences in the Ontario Correctional Institute or the penitentiary.

[66] The disgraceful treatment of these inmates has to be addressed by the authorities. The repetitive judicial outcry about these conditions continues to fall on deaf ears. The only remedy is to persist with consistently reducing the overall sentences for those who are found guilty to account for these unduly punitive conditions. Sadly, this remedy is no consolation for the people who are found not guilty.

[67] A well informed reasonable member of the public would not perceive this additional mitigation of sentences as "getting a break" or "getting off" especially if they spent a couple of days experiencing the awful smells, the noise, the sleeplessness, the familial isolation, the forced closeness with another person in a confined space for extended periods of time and the expressed desperation of these prisoners. I agree entirely with the comments of Justice Schreck, in Persaud, supra at para. 39 that:

In my view, we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct. As such, it becomes relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law.

[68] Counsel provided records from C.E.C.C. that Mr. Spicher was locked down for a total of 57 days in a 7 foot by 15 foot cell with two bunks. The most prevalent reason for the lock downs was staff shortages. In addition, he was also triple bunked for a period of five days, one of those days included a lock down. As a result of the lock downs at C.E.C.C., Mr. Spicher's will receive an additional 1.5:1 credit for each day that he spent on lockdown. The total credit will be 258 days at 1 for 1.5 = 387. The 57 days of lock down will be reflected as an additional 86 days of Duncan credit. The overall pretrial custody that will be reflected on his record will be 258 days to be the equivalent of 473 days or 15 months and 23 days.

ii. The Impact of COVID-19 on the Overall Sentence

[69] Undoubtedly, the global pandemic has impacted every aspect of our lives and our sense of safety and security. Most rational, well-informed people are frightened by the possibility of contracting this potentially deadly virus. At a time when medical health professionals are emphasising the importance of social distancing measures, wearing masks, the regular use of hand sanitizers and hand washing and limiting social interactions, it is not surprising that inmates are feeling particularly vulnerable and powerless to protect themselves.

[70] While it is obvious why inmates are in a more vulnerable position due to their forced, confined and populated settings, neither counsel nor the crown called any evidence during the sentencing about whether or not C.E.C.C. has taken steps to address any concerns about the spread of the virus in custody or whether there are any reported cases in the institution. There have been dozens of reported decisions released in the last few months that referred to reports about safety measures in various institutions and the countervailing expert reports from epidemiologists expressing concern about the welfare of prisoners. I was not provided with any similar evidence. Counsel submitted that because of the common sense concerns and related stress with respect to the safety of prisoners in forced congregated settings, Mr. Spicher's pre-trial custody should receive more credit and, in addition, his overall sentence should be reduced.

[71] I have already considered the conditions at the jail and reduced his overall sentence to reflect this Duncan credit. I do not have any additional evidence about how or whether C.E.C.C. has responded to the COVID-19 crisis or what the penitentiaries are doing to respond to these issues. Mr. Spicher does not have any special health concerns over and above the understandable generalized anxiety and stress about the possibility of exposure to this virus in a confined setting. Most importantly, this is not a sentencing case wherein Mr. Spicher is close to a time served position that may justify ordering a sentence that would be below the acceptable range to secure his early release from custody in order to avoid the risks of exposure to inmates or employees with the virus.

[72] In R. v. Studd, 2020 ONSC 2810, [2020] O.J. No. 2035 (Ont.S.C.J.), Justice Davies observed at para 42 that:

The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case. However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

[73] In addition to ensuring that the sentence is proportionate, I have to consider that that this is a penitentiary sentence and the federal correctional authorities will be responsible to ensure Mr. Spicher's care and safety. In R. v. Stone, [2020] O.J. No. 2953 at para. 14 to 20 (Ont.C.A.), Justice Juriansz addressed COVID-19 concerns in the context of an application for bail pending appeal. His comments are equally applicable to the expressed concerns about sentencing a person to a penitentiary term during this crisis:

It is in the public interest that the spread of COVD-19 in correctional institutions be minimized. The current COVID-19 pandemic is a factor that is to be considered in assessing the public interest criterion: R. v. Omitiran, 2020 ONCA 261, at para. 26; R. v. Jesso, 2020 ONCA 280, at para. 36.

That said, the primary responsibility for the safety of inmates in federal correctional institutions lies with the federal government and Corrections Canada. The applicant points out that the Honourable Bill Blair, Minister of Public Safety and Emergency Preparedness, on March 31, 2020, recommended that the Superintendent of Prisons and the Head of the Parole Board consider releasing inmates. The Superintendent and the Parole Board may have resort to special powers to grant early parole to inmates whose release will not pose an undue risk to the public.

In contrast to the comprehensive perspective Corrections Canada may take, the focus of a court is necessarily solely on the individual case before it and the administration of the law (in this case, s. 679(4) of the Criminal Code).

The fact is that the applicant has been sentenced to six years in custody in a federal penitentiary. Being on release for a few months now will not change the fact he must serve his sentence and may be serving it during the second wave of COVID-19 that Dr. Orkin foresees, should it occur.

If, in the future, there is an outbreak of COVID-19 at Bath Institution, it will up to the prison authorities to take appropriate measures to ensure the health and safety of those who are incarcerated or work in the institution, as well as of the general public.

[74] I am sympathetic to the concerns of incarcerated individuals with respect to their inability to control their exposure to the virus. No one knows what the future holds, whether there will be a second wave of this virus or how the penitentiary will handle this ongoing crisis. However, if I were to reduce Mr. Spicher's sentence any further, in the circumstances of this case, it would result in a disproportionate sentence that does not reflect the predominant sentencing considerations. In addition, as noted, it will be up to the federal correctional authorities to address this challenging situation and ensure the safety of the people in their institutions.

E. Conclusion

[75] This sentence may seem harsh to Mr. Spicher and his family, but it is nowhere near as harsh as the death, harm and suffering that could have been caused to innocent victims of gun violence. Individuals who choose to put their own personal gain above the lives and safety of members of our community have to pay a heavy price so that the message is clear. Our courts will not countenance trafficking in these deadly weapons and the public will be protected by sentencing these offenders in a manner that reinforces this unwavering message.

[76] Mr. Spicher is sentenced as follows:

Count 1: September 4th sale of the shotgun

• 258 days PTC = 15 months and 23 days (273 days) + 20 months and 7 days
• (36 months in total)

Count 5: September 5th transferring ammunition

• 12 months consecutive

Count 8: September 6th sale of the rifle

• 258 days PTC = 15 months and 23 days concurrent + 20 months and 7 days concurrent
• (36 months concurrent)

Count 11: September 18th sale of the tactical rifle

• 24 months consecutive

Count 12: Possession of the proceeds of crime

• 12 months concurrent

Total sentence: 15 months and 23 days PTC + 56 months and 7 days

[77] In terms of ancillary orders, pursuant to section 109 there will be a weapons prohibition for life. There will be DNA orders and a forfeiture order of all items seized upon Mr. Spicher's arrest and all items seized during the course of any searches as a result of this investigation. Finally, I am satisfied that ordering victim fine surcharges in these circumstances would be an undue hardship in light of Mr. Spicher's life challenges and his obligations to support his children once he is released from custody. The victim fine surcharges are waived.

Released: July 28, 2020

Green J.