Court Information

Court: Ontario Court of Justice

Court File No.: Central East Region: Oshawa Courthouse 19-RA25239

Date: August 26, 2020

Parties

Between:

Her Majesty the Queen

— And —

Quinton Christopher Cook

Before: Justice Peter C. West

Heard: November 25, 2019, January 28, 2020

Reasons for Judgment Released: August 26, 2020

Counsel

For the Crown: N. Young

For the Accused: H. Saini

Judgment

WEST J.:

Guilty Pleas

[1] Quentin Cook pleaded guilty on November 25, 2019, to:

1. Possession of a loaded restricted firearm, namely, a Glock 17, 22 calibre, contrary to s. 95(2) of the Criminal Code (Count 2);

2. Possession of a loaded firearm, a semi-automatic rifle, together with readily accessible ammunition, contrary to s. 95(2) of the Criminal Code (Count 4);

3. Possession of a loaded restricted or prohibited firearm, namely, a Glock 22, 40 calibre, contrary to s. 95(2) of the Criminal Code (Count 7);

4. Manufacture ammunition, while knowingly not being authorized to do so under the Firearms Act, contrary to s. 99(1) of the Criminal Code (Count 9); and

5. Manufacture a prohibited firearm, a restricted firearm; a non-restricted firearm, while knowingly not being authorized to do so under the Firearms Act, contrary to s. 99(1) of the Criminal Code (Count 11).

[2] As a result of Mr. Cook's guilty plea to these five offences, a further 11 offences will be withdrawn, although the facts pertaining to many of these charges were included in the agreed statement of facts, as they were to be considered pursuant to R. v. Gardiner in determining a fit and appropriate sentence.

[3] The matter was adjourned to January 29, 2020, for sentencing submissions and my ruling as to the sentence was adjourned to March 27, 2020. On February 4, 2020, Mr. Saini sent an email, which provided the citation of a recent sentencing decision, made after a trial, based on an agreed statement of facts with the sole issue being duress, by Leibovich J. of the Ontario Superior Court of Justice, R. v. Bajwa, [2019] O.J. No. 5426 (trial judgment) and R. v. Bajwa, [2020] O.J. No. 162 (reasons for sentence). It was Mr. Saini's submission that this decision "substantially changes the landscape" of Mr. Cook's case. I agreed to have counsel provide written submissions respecting this case, which I received and will address later in these reasons.

Factual Background

[4] An agreed statement of facts was filed as Exhibit 1 in this matter, together with numerous photographs, filed as Exhibit 2, of the two manufactured restricted firearms, Glock 17 (22 calibre) and Glock 22 (40 calibre) and an AR-15 (22 calibre assault rifle style firearm, which was semi-automatic). When these firearms were found by police all three were loaded with ammunition.

[5] On September 10, 2018, at approximately 5:30 pm, DRPS received a 911 call, which advised a male person had flashed a "homemade 9mm handgun" to the caller in the course of a dispute. The caller identified himself as Matthew Sheridan and advised the individual was returning to his home at 19 Lawrie Road in Ajax, in a blue Tuscon SUV, with marker BZLB 444. When police arrived at the address they found a Tuscon, license BZLB 444, parked in the driveway. P.C. Elliott observed a handgun in plain view on the driver side floor of the Tuscon. The front driver's door was unlocked. The handgun in the Tuscon was seized to ensure it could not be accessed by Mr. Cook if he decided to flee. The handgun was a loaded Glock 17, with an oversized magazine. It was seized by P.C. Cronin. Mr. Sheridan later attempted to retract his complaint to the police. I was not advised what the dispute between Mr. Cook and Mr. Sheridan was.

[6] The police secured the area and did a door knock. Quintin Cook answered the door, his identity was confirmed by MTO photos. Mr. Cook had a cell phone in his hand, and he descended to the basement of the house. The officers who had attended the address did not enter the house.

[7] Mr. Cook eventually left his residence and surrendered to the police. He was holding his cellphone and keys when he surrendered. DRPS entered the house to clear it of other potential occupants. P.C. Elliott and P.C. Hulsman entered the basement and observed an assault rifle on the floor in plain view. They also observed a black handgun 80% receiver in a box beside the rifle on top of plastic orange parts. The receiver is known as an 80% receiver from a POLYMER80 kit. The rifle and handgun were seized, and the residence was cleared.

[8] Search warrants were obtained for the Tuscon and the house. The warrant authorized a search for firearms and ammunition in addition to identification and documentation. Found during the search were the following additional items:

• Glock 22 (40 calibre) – loaded with ammunition;
• Boxes for Polymer80 kits;
• 3 Jigs (described as moulds in the reports) for a Glock handgun (used to drill out an 80% receiver – effectively turning it into it into a firearm);
• 1 Jig for an AR-15 semi-automatic rifle;
• 2 bags full of brass shell casings for firearms;
• A press for making ammunition;
• A drill press (not seized);
• 100 rounds of 0.223 Remington Shell Casings (found with Glock in rifle bag);
• Hundreds of rounds of live ammunition in a purple bin;
• Blank ID cards with magnetic strips;
• Identification documents in the names of other individuals;
• Hundreds of rounds of live 9mm ammunition;
• Hundreds of rounds of live .223 ammunition;
• Hundreds of rounds of .223 Remington rifle ammunition; and
• Mail addressed to Quintin Cook with an address of 19 Lawrie Road (photographed but not seized).

[9] Mr. Cook's cellphone was seized on his arrest and was analyzed pursuant to a warrant. Phone calls from Mr. Cook to Matthew Sheridan were found between 5:34 pm and 5:37 pm. The phone also revealed emails between Mr. Cook and others for the purchase of firearm parts including, slides, 80% receivers, completion kits and ammunition. There were emails for the purchase of a drill press and ink for an ID card printer. There were images of firearms and screenshots of confirmation of the purchase of firearm parts.

[10] The residence at 19 Lawrie Road, Ajax is a bungalow with a basement. It appeared to only be occupied by one person, there was only 1 bed in a bedroom and most of the rooms had no furniture. All of the contraband was found in the basement.

[11] Quintin Cook's fingerprints were found on the Jigs and comparisons were done by a fingerprint officer. A DNA profile was developed from a swab on the AR-15 and there was no match to anyone on the known offender data base. Mr. Cook does not have a criminal record. Mr. Cook did not possess any firearms' authorization of any kind as determined by a Firearms Officer.

[12] CFS examined all firearms and determined they were made from POLYMER80 kits. These kits are commercially available and include an 80% receiver made of polymer (lower portion of the firearm) and jigs, which fit over the receiver to allow the barrel and other fitting to be drilled out so that the various parts and components can be fitted to the receiver to complete a firearm. Quintin Cook admitted to police he manufactured the three firearms using these kits.

[13] The Glock 17 found in the Tuscon was loaded and functional and is a restricted firearm. It is a 22 calibre handgun. A restricted firearm license is required to manufacture and possess such a firearm.

[14] The AR-15 found in the basement was loaded and functional and a restricted weapon. When it was tested it fired a projectile upon squeezing the trigger and a second projectile when the trigger was released. This firearm is therefore a fully automatic firearm. It is normally classified as a restricted firearm. It is a 22 calibre assault rifle style firearm.

[15] The Glock 22 found in the basement in the rifle bag was loaded and fully functional. It was not capable of full semi-automatic fire because one had to pull the slide after each shot. It was a restricted firearm and is a 40 calibre handgun.

[16] CFS also provided an opinion that the ammunition press and the casings and the primer found in the residence can be used to prime or manufacture ammunition. Quintin Cook admits he manufactured ammunition. He did not have the appropriate restricted firearms licenses.

Position of the Parties

[17] The Crown is seeking a four year custodial sentence. Although the three year mandatory minimum was struck down by the Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the Crown argued the facts involved in Mr. Cook's offence reflected "truly criminal conduct" for which Mr. Cook must receive an exemplary sentence that emphasizes deterrence and denunciation. The Crown is also seeking ancillary orders involving Mr. Cook providing his DNA and a s. 109 weapons' prohibition order. The defence does not take issue with the ancillary orders sought by the Crown.

[18] The defence initially on the day of the guilty plea submitted a sentence of three and a half years in the penitentiary was the appropriate sentence. The sentencing position by the defence changed to a three year sentence after counsel conducted some legal research, less pre-trial credit to be assessed for strict bail conditions, namely, house arrest, per R. v. Downes, [2006] O.J. No. 555 (C.A.). It was Mr. Saini's submission this was the appropriate sentence having regard to Mr. Cook's guilty plea, the fact he is a youthful first offender with no youth record or criminal record. The defence position changed again, as a result of the decision of Justice Leibovich in R. v. Bajwa, supra, to a sentence of 18 months in the reformatory less credit pursuant to Downes, to be followed by a period of probation.

Circumstances of the Offender

[19] Mr. Cook was 23 at the time of the commission of these offences and is currently 25 years old. He is single with no dependants. He does not have a youth or criminal record.

[20] Mr. Cook's parents divorced when he was young and from the age of twelve he refused to visit his father and has had only limited contact with him. Mr. Cook was babysat by his grandmother, when he was growing up and they became very close.

[21] He completed Grade 12 but in his later years in high school he lost interest in school and spent his time playing video games and hanging out with his friends. When his grandmother passed away she left Mr. Cook the majority of her estate, which meant he received in excess of a million dollars and his grandmother's house. This created difficulties for Mr. Cook as other family members tried to get him to give them some of the money he had been bequeathed. His mother advised the probation officer Mr. Cook became paranoid about protecting the estate and he became withdrawn and reclusive.

[22] He was employed at different jobs, including a drywaller for two years and as a part-time mover. From 2015 to 2017 he worked for Ms. Shepard in her landscaping company. Ms. Shepard described Mr. Cook as a dependable, hard worker when he first began working for her but in the last six months of his employment he began demonstrating uncharacteristic and irresponsible behaviour. This coincided with the loss of his grandmother. Ms. Shepard advised Mr. Cook stopped showing up for work, he damaged vehicles and acted in a manner that placed her contracts at risk, which was exactly the opposite to his work ethic previously. After Mr. Cook stopped working for Ms. Shepard he began to upgrade his grandmother's house and lived off his inheritance.

[23] He is an infrequent user of alcohol and his only drug use involved marihuana. This apparently became problematic for Mr. Cook as his paranoia increased when he was using marihuana daily. Since his arrest he only has used marihuana on a half dozen occasions and not at all by the time he met with the probation officer.

[24] Mr. Cook presented as polite and cooperative with the probation officer. The probation officer believed Mr. Cook was candid and not evasive in the answers he provided. Mr. Cook questioned his actions and did not know why he did what he did. The probation officer offered the opinion that it appeared Mr. Cook has been struggling with paranoia and stress that escalated as a result of his grandmother's death. His involvement with the offences coincided with her death and his acting as the executor of her will. His mother advised her son became withdrawn as family members put pressure on him and he withdrew from everyone.

[25] According to the probation officer Mr. Cook recognized the seriousness of his offences and that his sentencing might include significant consequences. Mr. Cook told the probation officer he knows he "chose the worst option" to deal with his paranoia but struggles with and expresses "some confusion trying to understand his behaviour, offering rationalization that even he recognizes is "flawed." Information from DRPS indicated they did not suspect Mr. Cook was involved with gangs or organized crime.

[26] Mr. Cook took full responsibility for his conduct and accepted he must make amends. Mr. Cook has taken the necessary steps to manage his life when he is incarcerated.

Mitigating and Aggravating Factors

[27] In considering what is a proportionate and fit sentence for Quintin Cook I must consider the mitigating and aggravating circumstances.

Mitigating Factors

[28] Mr. Cook is a youthful first offender who does not have a prior youth or adult criminal record. This is a significant mitigating factor and raises the importance of rehabilitation despite the seriousness of these offences.

[29] Mr. Cook's guilty plea is an expression of remorse on his part and reflects his acceptance of responsibility for his involvement respecting the manufacture and possession of these loaded restricted/prohibited firearms. Further, his guilty plea has resulted in the saving of considerable court time and expense.

[30] From the presentence report it seems clear that Mr. Cook did not deal with the death of his grandmother appropriately and he likely needs some form of grief or bereavement counselling.

Aggravating Factors

[31] Mr. Cook's actions were planned and deliberate involving his sourcing websites where he could purchase the various parts necessary to build the three restricted/prohibited firearms and ammunition components. He had to purchase equipment to assist in their manufacture and assembly. These are all aggravating circumstances unique to this case.

[32] Further, no real explanation has been provided by Mr. Cook respecting his manufacture and possession of the two restricted firearms or the AR-15 semi-automatic assault rifle. He advised the probation officer that he felt threatened by family members after everyone became aware of his grandmother leaving the majority of her estate to him, however, I agree with the Crown as to there being a disconnect between this concern of family members asking him for money and his decision to make three restricted firearms and ammunition.

[33] The number of restricted firearms he manufactured in the basement of his home is also an aggravating factor. The fact that someone can manufacture restricted firearms in their basement is particularly concerning.

[34] At the time of Mr. Cook's possession of the Glock 17, .22 calibre restricted firearm, the second Glock 22, 40 calibre restricted firearm and the AR-15 semi-automatic assault rifle, he did not have the requisite license, authorization or registration certificate, which would have permitted him to lawfully possess such firearms. He was also not a licensed gunsmith in terms of being licensed to manufacture restricted firearms or ammunition. In my view these are all aggravating circumstance to consider on sentence.

[35] The AR-15 semi-automatic assault rifle discharged a projectile when the trigger was squeezed and when it was released a second projectile was discharged, which made this restricted firearm an inherently dangerous firearm given that someone picking up this firearm not knowing its peculiar firing operation could accidently release a second unintended shot with unintended consequences. The agreed statement of facts defined such a restricted firearm as an automatic firearm. This is a further aggravating factor in this case.

[36] Mr. Cook had the Glock 17, 22 calibre restricted firearm, fully loaded, with an oversize magazine, on his person when he left his residence and attended this meeting with Matthew Sheridan. He transported this restricted firearm in his motor vehicle and left it in his unlocked motor vehicle after he returned to his residence. These are further aggravating circumstances.

[37] The dispute Mr. Cook had with Mr. Sheridan was not described or explained in the agreed statement of facts but this is the very danger described in the cases dealing with persons who carry loaded restricted firearms out into the community – the only purpose for the possession of such an item is to threaten, injure or kill another person(s), which is what occurred as a result of Mr. Cook's possession. The very real danger is that innocent members of the community will be injured or killed as a result of such possession. In the Greater Toronto Area the possession of loaded restricted firearms is becoming far too frequent and as Justice Thomas observed "the court must react meaningfully"[1] to this type of criminal offence. These additional aggravating circumstances demonstrate the paramountcy of the sentencing principles of denunciation and deterrence, particularly general deterrence, as well as protection of the public present in this case.

[38] The other restricted firearms were also carelessly and dangerously stored in the basement of Mr. Cook's house, in plain view and fully loaded with additional ammunition in close proximity. These are also aggravating circumstances.

[39] Mr. Cook had no valid or legal reason to manufacture these three restricted firearms and has not provided any reason to explain his decision to not only manufacture these firearms but to carry them on his person, in his motor vehicle, fully loaded, together with his use of the firearm during a dispute with Mr. Sheridan are all serious aggravating circumstances to be considered in determining a proportionate sentence.

[40] Mr. Young also points to the fact these three restricted firearms were completely untraceable as being an aggravating circumstance. It is my view this circumstance is also a feature of the significant aggravating factor that Mr. Cook was able to obtain these firearm parts on-line and then manufacture and assemble working firearms in the basement of his home. In my view the fact that someone could manufacture working restricted firearms in their home is both terrifying and shocking.

Impact on the Community

[41] There is no specific victim affected by Mr. Cook's criminal conduct other than the impact on the community at large of a person having possession of a restricted or prohibited firearm and Mr. Sheridan, who contacted the police because Mr. Cook flashed this gun when they had a disagreement. Numerous sentencing decisions have referred to "illegal handguns" being a scourge and a plague on the community. Justice Goldstein in R. v. Beals, [2015] O.J. No. 2306 (SCJ) at para. 31, has in my view clearly expressed the significant impact on the community perpetrated by offenders who possess illegal firearms:

That said, the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes: either to kill people, or to intimidate people -- and the reason they are intimidating is because everyone knows about the first purpose. These weapons are extremely dangerous, especially when they are loaded and tossed away in a public place, as this one was. The crime of possessing one of these weapons is not a momentary lapse of judgment. It is not like participating in a bar fight that gets out of hand and causes serious injury. Possession of weapons like these usually requires more thought. We do not know exactly how Mr. Beals came into possession of this weapon, but we do know that he got rid of it in a manner that suggests he knew what he was doing. The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public.

[42] It is important to note that in the agreed statement of facts, Exhibit 1, the Glock 17 was found, fully loaded and in plain view, on the driver's side floor of Mr. Cook's unlocked motor vehicle, which was parked in his driveway of his house in a residential neighbourhood. Further, Mr. Cook was able to manufacture these three firearms in the basement of his home from parts he ordered on line from the United States. The grave danger to the community at large having regard to these circumstances cannot be minimized or overstated.

Determining the Appropriate Sentence

[43] In determining an appropriate sentence for Mr. Cook, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[44] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[45] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[46] Although deterrence and denunciation are the most significant sentencing principles in cases involving the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude a consideration of rehabilitation, particularly in the case of an offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis of the shortest possible sentence that will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. In this case Mr. Cook is a youthful first offender, who has never received a custodial sentence.

[47] I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, where the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[48] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92).

[49] Both counsel provided me with numerous cases dealing with the sentencing of offenders who have possessed restricted or prohibited firearms. I do not intend to refer to every decision provided to me but will refer to a sampling, which are summarized below:

[50] The Crown focused entirely on cases involving the manufacturing of firearms, of which there are only a few that are reported:

a) R. v. Friesen, [2016] B.C.J. No. 1938 (Verhoven J., BCSC): Friesen had criminal record for production of substance, careless use of firearm, prohibited weapon and ammunition (5 months + probation); and attempt murder with firearm (5 years less PSC) and had a lifetime weapons prohibition. He pleaded guilty to online sale, export, manufacture of suppressors and Glock handgun switches, the possession of restricted and prohibited firearms and breaches of weapons prohibitions. He also sold prohibited conversion devices for Glock firearms from semi-automatic to automatic. Crown sought 11.5 to 14 years and defence sought 7-10 year sentence. Denunciation and deterrence were the primary sentencing principles applicable in this case. Sentence imposed: If Friesen received consecutive sentences for all offence then 21 year sentence but applying principle of totality the appropriate sentence was 10 years less PSC (3 years).

b) R. v. Whaling, [2014] B.C.J. No. 445 (C.A.): Whaling, after a trial, convicted of trafficking in three sub-machine guns, and possession of three handguns at his home and possessing a handgun at an unauthorized place. Sentencing judge found total consecutive sentence for three groups of offences was 9 years but applying totality principle sentence reduced to total sentence of 6 years less PCS (1.5 years).

c) R. v. Mackie, 2015 YKTC 17, [2015] Y.J. No. 46 (Cousens, C.J. Terr. Ct): Sentencing for possession of prohibited weapon, manufacture firearm and possession of stolen property after guilty plea. Mackie was manufacturing firearms in a shed and selling them to individuals. He was also in possession of three stolen firearms. Sentence imposed 44.5 months less PSC (20.5 months).

[51] Counsel for Mr. Cook provided me with a number of sentencing decisions involving the possession of a loaded restricted/prohibited firearm, however, many of these decisions do not provide much assistance in determining an appropriate sentence, having regard to the very serious circumstances involved in this case:

a) R. v. Biya, 2018 ONSC 6887, [2018] O.J. No. 6711 (Brown, SCJ): Mr. Biya sentenced for possession of loaded firearm, careless storage of firearm, careless storage of ammunition, possession for the purpose of trafficking MDEA and possession of proceeds of crime. Minor unrelated record. Sentence: Three years (3) for firearms offences and one (1) year consecutive for drug offence less PCS (51 days and three months Downes credit).

b) R. v. Dalton, [2017] O.J. No. 5810 (Garton, SCJ): Mr. Dalton pleaded guilty to possession of a loaded restricted weapon, .357 Ruger and ammunition. Conditional sentence of 12 months taking into account PSC of 15 months and one year probation.

c) R. v. Downey, [2016] O.J. No. 6855 (Campbell, S.K., SCJ), affirmed 2017 ONCA 789, [2017] O.J. No. 5271 (C.A.): After trial, accused convicted of numerous firearms offences for bringing three firearms, magazines and ammunition into Canada from the United States. Sentenced to two years less a day. Conviction appeal dismissed and sentence upheld. Mr. Saini did not provide sentencing decision.

d) R. v. Elvira, 2018 ONSC 7008, [2018] O.J. No. 6185 (Schreck, SCJ): Youthful first offender, after trial, sentenced for possession of loaded restricted or prohibited firearm, possession of heroin for purpose of trafficking and possession of cocaine for purposes of trafficking. Schreck J., notes "while sentencing of two years less a day can be imposed in cases with significant mitigating features, the usual range is three to five years" citing R. v. Graham, 2018 ONSC 6817, at paras. 37-38; R. v. Marshall, 2015 ONCA 692, at paras. 53-56; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R. v. Crevier, 2015 ONCA 619, at paras. 128-129; and R. v. Carrol, 2014 ONSC 2063, at paras. 21-28. Sentence for possession of loaded firearm was three (3) years less PSC (two years and 3 months) leaving 9 months and 15 months less a day consecutive for heroin P for P, 12 months cocaine P for P concurrent, total sentence remaining was 24 months less a day to be followed by 24 months probation.

R. v. Lu, 2019 O.J. No. 5389 (Spies, SCJ): Guilty plea to possession of loaded firearm, failure to comply with bail and simple possession of methamphetamine. Criminal record, youth and adult: longest previous jail sentence 4.5 months. Sentence: possession of loaded firearm, 32 months; fail to comply, 90 days consecutive and 15 days consecutive for possession of methamphetamine.

e) R. v. Mohiadian, [2020] O.J. No. 93 (Dunphy, SCJ): Youthful first offender, after a trial, convicted of possession of a loaded firearm and other related firearms offences. Sentence imposed 38 months.

f) R. v. Nguyen, [2019] O.J. No. 5789 (Spies, SCJ): 23 year old accused with criminal record which included firearms and drug trafficking offences facing possession of loaded firearm and breaching prohibition order. Crown sought five year sentence and defence sought 4 year sentence. Sentenced to three years for possession of loaded firearm and 8 months for breach of prohibition order consecutive less PSC (credit for 46 months) Actual sentence time served plus 1 day.

g) R. v. Roy, [2018] O.J. No. 3427 (Moore, D, OCJ): Youthful offender (21), with minor record, tragic upbringing involving abuse, guilty plea to charge of possession of loaded firearm in vehicle, despite arguable Charter issues, received sentence of 21 months for possession of loaded firearm and 3 months consecutive on the breach of weapons prohibition offence, less PSC (476 days credit leaving 254 days).

h) R. v. Travis, [2019] O.J. No. 4293 (Howard, SCJ): Youthful first offender found in possession of a loaded firearm, Smith and Wesson .38 caliber revolver, guilty plea. Sentencing judge found facts of Travis' possession fell between the two ends of the spectrum. Sentence imposed: 29 months.

i) R. v. Virgo, [2019] O.J. No. 4236 (Knazan, OCJ): Youthful (18) first offender pleaded guilty to possession of a loaded firearms and constructive possession of a loaded firearm that he knew was in his brother's backpack in the car he was driving. Sentence imposed taking into account the 1 year of house arrest bail was a sentence of 2 years less a day followed by 3 years of probation.

j) R. v. Wright, [2018] O.J. No. 3593 (Corrick, SCJ): Youthful (22 at time of offence) first offender, pleaded guilty after Charter application dismissed to possession of a loaded 9mm firearm. Two year sentence less PSC (8 weeks) leaving 22 months followed by two years' probation.

k) R. v. Kift, [2014] O.J. No. 5614 (Deluzio, OCJ) affirmed [2016] O.J. No. 2626 (C.A.): Kift was on federal parole for gun-related trafficking offences (5 year sentence) and subject to a condition prohibiting from owning or having possession of any weapon. Convicted, after trial, of 20 counts possession of prohibited and restricted firearms with readily accessible ammunition, eight counts of possession of firearms and weapons contrary to a prohibition order and 20 counts of unsafe storage of a firearm. During high-risk search police seized 67 firearms, prohibited devices and commercial & military explosives. Crown sought 7-8 year sentence, less PSC and defence sought a conditional sentence with 1 year probation. Sentenced to 8 year sentence less PSC (624 days credit). Further, an additional three month sentencing remission was granted because he was detained for 15 days contrary to s. 503 of Criminal Code. Effective sentence was 6 years with lifetime prohibition. The first count under s. 95(2) received a 4 year sentence after the 624 days was taken into account, so the actual sentence was 5.7 years. The breach of weapon prohibition was a two year consecutive sentence, making the total effective sentence of 6 years.

l) R. v. Balatoni, [2004] O.J. No. 5311 (Dawson, F., SCJ): Conspiracy to traffic firearms, unlawful possession of weapons, possession of weapons knowing serial numbers have been defaced, unlawful transfer of prohibited devices, unlawful transfer of weapons, possessing firearms in the form of pistol frames for the purpose of transferring them knowing that he was not authorized, and possessing firearms in the form of pistol frames knowing that the firearms were obtained by commission of an offence were the offences Balatoni pleaded guilty to just before jury selection. He was employed as a gunsmith. He was 46 years of age with no criminal record. Joint submission for sentence between 6 and 8 years. Sentence imposed was 7 years and lifetime prohibition. Offences committed for commercial gain.

[52] I would indicate an observation that a arises upon the discussion of these sentencing cases. A total of 15 cases between 2016 and 2020, with one case from 2004 and another from 2014, indicates the serious number of possession of firearms in the GTA, which I referred to previously as a scourge and plague on our community.

[53] After sentencing submissions were completed and I had reserved to prepare my reasons for sentence, Mr. Saini provided me with the recent decision of Justice Leibovich in R. v. Bajwa, supra, which he argued was relevant to and "substantially changes the landscape" of Mr. Cook's case. Ms. Bajwa was charged with six firearm-related offences and after a trial Justice Leibovich found her guilty of all six charges. The trial was based on an agreed statement of facts where Ms. Bajwa alleged she was "threatened with harm to herself, her fiancé, and her daughter from two unknown males if she did not obtain the two Glock firearms." She argued she acted under duress, which was not accepted by Justice Leibovich. Ms. Bajwa had a restricted firearms license that permitted her to purchase firearms and transport them to her residence. The defence brought a constitutional challenge to the mandatory minimum sentence under s. 99(2), which Justice Leibovich granted based on numerous decisions in the Ontario Superior Court already declaring s. 99(2) unconstitutional.[2]

[54] Both counsel during the numerous pre-trials conducted in this matter advised me that the mandatory minimum sentence in s. 99 was still in force. I accepted these representations and all counsel proceeded on that understanding, although it was clearly understood and represented that the Ontario Court of Appeal had, in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120, at para. 51, affirmed 2015 SCC 15, [2015] 1 S.C.R. 773, struck down the mandatory minimum sentence in s. 95(2) as unconstitutional. Mr. Cook pleaded guilty to three offences pursuant to s. 95(2), relating to the two Glocks and the AR-15 firearms he possessed and two offences relating to the manufacture of those same three firearms as well as manufacture of ammunition pursuant to s. 99(2).

[55] In my view the Bajwa decision has no application or bearing on the determination of a proportionate or fit sentence for Mr. Cook for the conduct he engaged in. The defence was always open to challenge the constitutionality of s. 99(2) as it related to the manufacture of restricted firearms, however, Mr. Saini chose not to. If he had brought such an application he would have discovered there were at least four prior Ontario Superior Court decisions finding the mandatory minimum sentence under s. 99(2) to be unconstitutional. Section 95(2) had been ruled unconstitutional in 2013 and the Ontario Court of Appeal, despite striking down the mandatory minimum sentence of three years, upheld the trial judge's sentence of a 40 month sentence for Mr. Nur, having regard to the aggravating and mitigating circumstances. The Nur decision determined there was a spectrum of appropriate sentences, which were determined as a result of the circumstances and context of an individual case.

[56] More importantly, the facts in the Bajwa case do not approach the serious nature of the aggravating circumstances and facts of Mr. Cook's case. Ms. Bajwa had a restricted firearms license which permitted her to purchase and transport to her listed residence the restricted firearms, two Glocks. She transported the two firearms to where she was living in Bradford with her boyfriend, Mr. Welch. Subsequent to this she moved to her parents home in Brampton and left the two Glock firearms in the Bradford residence. The police arrested Ms. Bajwa in Brampton and executed a search warrant at Mr. Welch's residence and found the two Glock's in their original boxes without the gun locks attached. These facts are completely distinguishable from the facts in Mr. Cook's case. As I will discuss below, the aggravating circumstances present in Mr. Cook's case fall within the "true crime" end of the spectrum identified in Nur, which calls for exemplary sentences because of the inherent dangers associated with the possession of loaded restricted firearms on a person in a motor vehicle or even in a residence stored in an unsafe manner, let alone the illegal manufacture of restricted firearms and ammunition.

[57] I find the decision in Bajwa does not assist me in determining a proportionate and fit sentence in Mr. Cook's case given the unique and unusual mitigating circumstances found by Justice Leibovich, which bear no similarity and in my view, have no applicability to the mitigating and aggravating circumstances present in Mr. Cook's case. The majority of the aggravating circumstances I have found above are absent in the Bajwa case based on Justice Leibovich's findings.

[58] It has been recognized that s. 95 of the Criminal Code has a very broad scope and captures conduct ranging from "the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade" to "the otherwise law-abiding responsible gun owner" who has a license but possesses a firearm at a place that falls outside the scope of the license: R. v. Nur, supra, at para. 82. In my view Mr. Cook's conduct clearly falls at the "true crime" end of that spectrum, R. v. Marshall, 2015 ONCA 692, at paras. 47-49.

[59] Regardless of which cases I am directed to involving the possession of a restricted or prohibited firearms, all of the sentencing decisions have a consistent theme, regardless of the level of court: "firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons," R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (SCJ Kelly) at para. 32. This principle is well expressed by Trafford J. in R. v. Villella, [2006] O.J. No. 4690 (S.C.J.) at para. 46:

...[T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

[60] To Justice Trafford's observations, which I adopt, I would add the further serious aggravating circumstance in this case, which involved Mr. Cook's manufacture of three restricted firearms in the basement of his home.

[61] The Supreme Court in Nur clearly indicated that circumstances which fall within the "true crime" end of the s. 95 spectrum of offences will still attract exemplary sentences that emphasize deterrence and denunciation and protection of the public, regardless of the constitutionality of the three year mandatory minimum sentence. This position has been maintained by the Ontario Court of Appeal prior to the introduction of the mandatory minimum sentences, see Marshall, supra, and after the mandatory minimum sentence was struck down, R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) and R. Charles, 2013 ONCA 681, [2013] O.J. No. 5115 (C.A.)

[62] Mr. Cook manufactured three restricted firearms in the basement of his home. He was not a licensed gunsmith. He did not have any licenses or authorizations to possess a restricted or prohibited firearm. He also manufactured ammunition for these restricted and prohibited firearms. He was not authorized to do this. He had no legitimate reason to manufacture or possess restricted firearms and ammunition. No satisfactory explanation was provided by Mr. Cook for his manufacture of three restricted/prohibited firearms or his manufacture of the ammunition to be used in them. The fact Mr. Cook was able to manufacture these three restricted firearms in the basement of his home is shocking and raises very serious, troublesome concerns.

[63] Further, Mr. Cook took a loaded Glock 17 restricted firearm in his motor vehicle and carried it on his person when he met with Matthew Sheridan. During their meeting they had a dispute and Mr. Cook "flashed" this firearm to Mr. Sheridan, who later called the police. As I have found these are serious aggravating circumstances that fall within the "true crime" end of the spectrum of s. 95 and 99 offences. In my view the circumstances surrounding Mr. Cook's possession of the Glock 17 when he was out in his motor vehicle, having it on his person and then "flashing" it when he got into a dispute with another person can only be described as being extremely dangerous. This conduct alone calls for an exemplary sentence. As Brown J.A. observed, writing in the dissent in R. v. Omar, 2018 ONCA 975, at para. 123, but subsequently adopted by the majority of the Supreme Court of Canada, 2019 SCC 32, "the distinctive feature of illegal handguns" is that they "are used to kill people or threaten them with physical harm – nothing else." The only logical inference to be drawn from Mr. Cook "flashing" the Glock 17 was to threaten Mr. Sheridan when they got into a dispute. Further, this restricted firearm was found in Mr. Cook's unlocked motor vehicle on the driver's floor in plain view, which is a further serious aggravating factor from which there is a logical inference of heightened dangerousness.

Sentence Imposed

[64] Considering the totality of the circumstances in this case, it is my view a proportionate sentence having regard to the seriousness of the offence, the planned and deliberate nature of Mr. Cook's manufacture of three restricted firearms, the lack of concern demonstrated by Mr. Cook's careless storage of those loaded restricted firearms in his basement, fully loaded and in close proximity to a large quantity of ammunition, the transporting of a loaded restricted firearm with an overcapacity magazine in a motor vehicle, "flashing" this loaded firearm during a dispute with another person and then leaving it in his unlocked motor vehicle in plain view requires a denunciatory and deterrent sentence with protection of the public as a significant goal. Further, the underlying circumstances of these offences put Mr. Cook's conduct at the end of the spectrum of "true crimes" and reflect a high level of moral blameworthiness on Mr. Cook's part. If he was not a youthful first offender the sentencing range for his conduct in my view would have been in the range of five (5) to seven (7) years, however, I will accede to the Crown's position of four (4) years in the penitentiary. It is my view, given my finding Mr. Cook's conduct falls within the "true crime" end of the spectrum of s. 95 cases, an exemplary sentence is the appropriate proportionate sentence, which properly reflects Mr. Cook's moral blameworthiness and the seriousness of the offences he committed. The only reason his sentence is not higher is because of the sentencing principles of rehabilitation and restraint given Mr. Cook is a youthful first offender.

[65] There will also be a DNA order pursuant to s. 487.05 as these offences are secondary designated offences. This is on consent of the defence.

[66] Finally, there will be a s. 109(1)(b) weapons' prohibition order for 10 years.

Released: August 26, 2020

Signed: Justice Peter C. West

Footnotes

[1] R. v. Nkrumah, 2019 ONSC 3270 (Thomas, RSJ, SCJ) at p. 2.

[2] R. v. Hussain, 2015 ONSC 7115; R. v. Harriott, 2017 ONSC 3393; R. v. De Vos, 2018 ONSC 6813; and R. v. Sauve, 2018 ONSC 7375.