CITATION: R. v. Carter, 2021 ONCJ 561
St. Catharines
DATE: 2021.11.05
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
CHRISTOPHER CARTER
Before Justice Fergus ODonnell
Heard on 18 August, 2021
Reasons for judgment delivered on 20 October, 2021
Written reasons for judgment released on 5 November, 2021
Mr. David King................................................................................................... for the Crown
Mr. Mark Evans..................................................... for the defendant, Christopher Carter
Fergus ODonnell J.:
Overview
This sentencing raises the following question: what is the appropriate punishment for a middle-aged first offender who has survived childhood adversity, studied diligently, worked tirelessly, achieved greatly, given generously, and inspired tremendous and widespread and enduring loyalty, but who then jeopardizes all of that, and his freedom and his family’s stability, by committing a serious but incredibly daft criminal offence for no apparent, tangible gain other than perhaps the satisfaction of an unsuppressed curiosity?
Christopher Carter has pleaded guilty to two offences, namely importing prohibited firearm parts, i.e. two selector switches capable of converting a Glock pistol to fully automatic firing, and possession of a prohibited firearm, a Derringer pistol.
The maximum sentence for each offence is five years in the penitentiary. Mr. King, for the Crown, seeks an upper-reformatory sentence of real jail, along with various ancillary orders; Mr. Evans, for Mr. Carter, says that the fitting sentence is a twelve-month conditional sentence.
The facts are as follows. The United States Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") investigated an overseas website that had sold selector switches to customers in the United States. Mr. Carter ordered two of these selector switches, had them delivered to a mailbox in Niagara Falls, New York, picked them up and brought them into Canada via the Whirlpool Bridge. The function of the selector switch is to convert a semi-automatic firearm to fully automatic functionality. Such a device has no place in the hands of any civilian.
That information was conveyed to the Niagara Regional Police which obtained a search warrant for Mr. Carter's home. On 6 September, 2019 the police executed that search warrant and arrested Mr. Carter a short time after he had left home. In the course of executing the search warrant the police found a Derringer Model 10 pistol with a 61mm barrel length. That is a prohibited firearm and Mr. Carter was licenced only to possess restricted firearms. The police also found a Glock handgun with one of the selector switches in a case. They also found three over capacity magazines among his legally-owned firearms.
The second selector switch was never found. Mr. Carter said that it was a piece of junk and that he had smashed it to pieces.
Until five years ago, Mr. Carter had no interest in firearms. His father-in-law died in 2016 and the family wanted to keep his gun collection in the family so Mr. Carter obtained his permit and arranged for the transfer of his father-in-law’s firearms to him. He became an active target shooter, a member of three gun clubs and president of one. As with his work and other hobbies, he jumped in to this serendipitous new hobby lock, stock and barrel.
Mr. Carter is not exactly a typical offender. He is fifty years old and counts a Ph.D. among his life accomplishments. The C.V. filed on his sentencing more resembles a document filed for an expert witness in a criminal trial than it does a document related to a defendant. He is a full-time professor at a local college.
Mr. Evans filed fifteen letters of reference in support of Mr. Carter. The longest is four pages, single-spaced in what is probably ten-point script. Several are a couple of pages long. They cover a wide range of experience with Mr. Carter, all covering a long period of familiarity, from about four years to thirty years. Several letters are from professional colleagues, two are from retired police officers with combined experience of over thirty years, one a former head of the Emergency Task Unit and one a former Deputy Chief, I do not propose to recite the letters chapter and verse, but a flavour of them is important:
- One letter describes Mr. Carter as passionate, perfectionist, uncompromising, “all in” and unwilling to accept anything but the very best; whether in his professional research, his teaching or his pursuit of hobbies, “he is not one who works in half measures.” This extends not only to his professional life in the lecture hall or in the lab but also to his hobbies such as craft brewing, camping and the like and his efforts to help his friends and families in business, community or personal endeavours.
- Mr. Carter’s enduring kindness and selflessness are recurring themes in the letters, as is his commitment to inspiring his students, lifting them out of their own self-doubts and launching them on their academic and sometimes their professional careers.
- A number of the writers assert that their life achievements have been materially derivative of Mr. Carter’s interest, effort and assistance as they faced challenges in their education.
- References to Mr. Carter’s sense of regret, remorse and worry arising out of his offences are commonplace.
Mr. King made a fair observation that some of the letters do not make it entirely clear that the authors know the details of Mr. Carter’s offences. It is always preferable that such letters demonstrate explicitly that the author knows precisely what crime has been committed. One author regrettably characterized the offence as, “an unintentional accident owed to tinkering”, which is inapt given the effort put in to acquire the switches and to bring those prohibited items across the border successfully. However, overall, the letters convey a sense that the authors are familiar with the seriousness of Mr. Carter’s offences and ask, not that the seriousness of his offences be diminished but that the greater, long-proved measure of the man not be swept aside by them. The two retired senior police officers clearly would know full well the dangers firearms create in society; one of them addressed that explicitly.
Mr. Carter is the child of a teenage mother and neither his father, who left before he was born, or his mother’s next partner played any parenting role. His mother’s next partner was, “emotionally, verbally and physically abusive,” to the children and to Mr. Carter’s mother, although his mother went out of her way to care for the children’s needs. His escapes were school, friends, hobbies and seasonal work. He appears never to have been idle. Mr. Carter’s mother was fourth-time lucky with her next partner, John Martin, with whom she blended her family and who has been in her and her children’s lives for three decades now, appearing to have been everything that his mother’s previous partners were not. Doing the arithmetic from various sources, it would appear that Mr. Martin did not appear on the scene until some time in Mr. Carter’s teens.
School was Mr. Carter’s escape from the early turmoil in his life and his intelligence led to success, starting with skipping a grade in elementary school, through earning scholarships in high school to help fund his post-secondary education, which was also funded by a series of NSERC scholarships. The passion and perfectionism referred to in the references undoubtedly aided Mr. Carter’s academic path.
The author of the pre-sentence report noted the following:
All personal collaterals interviewed consistently corroborated this information describing the subject as academically brilliant, a hard worker who positively contributes to every learning and work environment he finds himself involved in. His supervisor….describes the subject as an asset to the College and student body. He reflected on how many of the subject’s students have embarked on fruitful careers as the result of the subject’s personal integrity and devotion to his teaching.
Mr. Carter is married with one child. His wife describes him as, “a devoted family man and amazing husband and father.” Mr. Carter is very attentive to her significant medical needs, something also referred to by one of the other character referees.
Mr. Carter has pleaded guilty and is a first offender. This is relevant in a number of ways. First, a guilty plea entitles a defendant to mitigation of sentence. Part of that is because it saves court time, a factor that is particularly important as the courts, like many parts of society, struggle to re-establish equilibrium in the face of very substantial backlogs arising from Covid-19. Second, while a guilty plea can sometimes reflect only an offender’s awareness that his goose is cooked and he has no avenue of escape open to him, it often reflects genuine remorse. Mr. Evans mentioned that Mr. Carter had foregone a Charter challenge by pleading guilty; on the record before me I cannot say how much credit should be allocated on that basis since no details were given and investigations involving the smuggling of contraband into this country are not typically fertile Charter ground for defendants. However, I do accept as entirely genuine the remorse reflected in Mr. Carter’s utterances to me and in the many letters filed in his support. I accept that these offences are truly out of character. I accept that there is no likelihood of their repetition.
Mr. Carter’s status as a first offender is also relevant. The principle was clearly established by Rosenberg J.A. on behalf of the Court of Appeal for Ontario in R. v. Priest, 1996 CanLII 1381, in the case of a first offender, “the trial judge has a duty to consider whether any disposition other than imprisonment would be appropriate.” This includes a particular focus on specific deterrence and rehabilitation.
The Criminal Code sets out the objectives and tools of a fit sentence. Distilled to its most basic elements, however, a fit sentence must reflect the seriousness of the offences and the moral blameworthiness of the offender. The sentence must aim to protect society by creating respect for the law and must aim to denounce the crime and any harm done, to deter both the immediate offender and other persons from offending, to assist in rehabilitating the offender and to promote a sense of responsibility. When it comes to the use of imprisonment, it is noteworthy that the tool of imprisonment under s. 718 (c) is to be used only, “where necessary”. Section 718.02, which sets out other sentencing considerations, notes at (d) and (e) that imprisonment should not be used if “less restrictive sanctions” would suffice, and that all reasonable available sanctions should be considered before imprisonment.
The problem, of course, is the seriousness of the crimes that Mr. Carter has pleaded guilty to. Unlike the great republic directly south of us, Canada does not glorify gun ownership. It has been almost forty years since the Supreme Court of Canada cited with approval Professor Friedland’s observation that the gun situation in the United States, “appears to many observers to be out of control”: R. v. Schwartz 1988 CanLII 11 (SCC), [1988] S.C.J. No 84, paragraph 76. We look at the unspeakable carnage that a permissive, perhaps obsessive, approach to firearms ownership has begotten in that country and we reject it wholesale. This nation’s firmly established public policy as set out by Parliament in the Criminal Code makes it clear that we want nothing to do with American-style gun ownership. As a result, ownership of firearms is very strictly controlled in Canada and sentences for firearms offences tend to be high, with an emphasis on deterrence as a priority objective of sentencing. As a general proposition, the Court of Appeal for Ontario in R. v. Smickle, 2014 ONCA 49, referring specifically to offences under s. 95 of the Criminal Code, stated that penitentiary sentences will typically follow even for first offenders and that even s. 95 offences of lower severity will typically lead to top-end reformatory sentences, again even for a first offender. It also bears noting, however, that the offences to which Mr. Carter has pleaded guilty, are not the same offences as s. 95.
The dangers of firearms are self-evident. Their importance to the farmer, the hunter and even the target shooter are obvious, but the legitimate interests of those gun owners are balanced into Parliament’s structure for gun regulation in Canada. Firearms are classified into different categories depending on particular characteristics. A licensed gun owner will be permitted ownership of firearms in one or more categories depending on his or her permit.
Firearms can be dangerous in a number of ways. Even a legitimately owned firearm, if stored improperly can be a danger by being accessible to children or to persons in the household experiencing mental distress. A firearm that is not securely stored is also at risk of being stolen in a break and enter, which is one way that firearms come into the possession of criminals with malicious intent. Once in circulation in the criminal milieu, a firearm really does not have a best-before date; it can be used over and over and over again, traded, lent out, rented out, used to facilitate drug and other offences, used to intimidate, used to wound, used to kill.
Obviously, the risk arising from lawful ownership increases, (a) if firearms are not stored securely; (b) if the types of firearms (or devices) stored and potentially stolen are particularly dangerous in nature. I note, for example, that the facts read in on the plea show that Mr. Carter was also in possession of three over-sized ammunition clips, which he was not allowed to possess and which would be of interest to a gun-inclined criminal malefactor. Certain types of firearms are particularly attractive to criminals, for example handguns or any other firearm that can more easily be concealed. A firearm capable of fully automatic firing is nothing more than a killing machine for use on human beings. See, for example, R. v. Hasselwander, 1993 CanLII 90 (SCC), [1993] S.C.J. No. 57 at paragraph 32. Whatever obsessive personality trait or intellectual curiosity might have driven Mr. Carter’s gobsmackingly incomprehensible descent into these offences, the reality is that a Glock such as his with a functioning full-auto selector switch would be a gun-focused criminal’s perverted Christmas dream and society’s nightmare. There is no level of context or curiosity that makes this offence in particular a triviality.
Much of the argument at sentencing focused on the categorization of Mr. Carter’s offences and how sentencing decisions in other cases might guide the appropriate sentence for Mr. Carter’s offences. To a large extent, Mr. King and Mr. Evans focused on the idea, set out by Justice Doherty in the Court of Appeal version of R. v. Nur, 2013 ONCA 677, of the spectrum of gun offences ranging from, “the outlaw who carried a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade,” who poses a serious risk to others, to, “the otherwise law-abiding responsible gun owner who has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence,” and who may pose very little or no risk to others. Both lawyers led me through a series of cases trying to place Mr. Carter closer to one end of that spectrum or the other, namely the “true crime” end of the spectrum or the “more regulatory offence” end of the spectrum.
I have reviewed and considered all of the authorities referred to by both counsel, including their observations about the aptness or otherwise of relying on their opponent’s cases in the facts of Mr. Carter’s case. I do not propose to refer to all of them here. There is no one case that is particularly on point. Some of the cases stand for general propositions that cannot be gainsaid, at least not in general. I think Mr. King speaks fairly in dismissing a couple of Mr. Evans’s cases as being out of the range of sentence. At the same time, Mr. Carter’s case lacks any of the commerciality present in a couple of the Crown’s cases and I think it is fair to say that no act on Mr. Carter’s part would have put the public at risk beyond the importation of the switches and creating the risk of a converted, fully-automatic handgun being stolen and put into the criminal market. In addition, his possession of the Derringer was inherently illegal. While a niche weapon, it is particularly easily concealable. It might not carry the same level of multiple lethality that a Glock would carry, but it could successfully be carried about undetected rather more easily.
The Crown has argued that a conditional sentence cannot be a fit sentence for an offence of this nature. I accept that as a general principle offences under, for example, s. 95 of the Criminal Code do not attract conditional sentences, but since sentencing must always be individualized, and since that individualization is a “cardinal” principle of sentencing with constitutional force, no general preference of real imprisonment for purposes of general deterrence can ever be an absolute bar to a conditional sentence in a fitting, particular case. I also note that the Court of Appeal in the very recent decision of R. v. Morris, 2021 ONCA 680, a decision of a panel of five judges, recognized the potential availability of a conditional sentence for even a section 95(1) offence of possession of a prohibited firearm with readily accessible ammunition in citing with apparent approval the decision of Blouin J. of this court in R. v. Shunmuganathan, 2016 ONCJ 519. I also note that much of the language of Nordheimer J. (as he then was) in R. v. Canepa, 2011 ONSC 1406, insofar as it addresses the appropriateness of conditional sentences is heavily adaptable to the present case. I recognize that in that case there were serious triable issues, but I see that distinction as going more to the appropriate length of the sentence rather than its form.
There is no dispute in this case that a conditional sentence is an available sentence, only whether or not it would be a fit sentence on the facts of Mr. Carter’s case and in terms of what sentencing objective should drive the form of sentence. A conditional sentence is available here where it is agreed that the appropriate sentence is within the reformatory range, where there is no mandatory minimum sentence and where the offences Mr. Carter pleaded guilty to are not excluded offences. The question thus becomes whether or not a conditional sentence would, “endanger the safety of the community,” or would be inconsistent, “with the fundamental purpose and principles of sentencing.”
According to the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, the dangerousness assessment must consider the likelihood of reoffending and the gravity of damage that could result if Mr. Carter were to reoffend. I consider the likelihood of reoffending, given Mr. Carter’s life-long track record and the reports in his letters and pre-sentence report, to be infinitesimal. If he were to re-offend the nature of the danger would be significant if a converted gun fell into criminal hands, but I believe that the overall analysis in this case must be dominated by assessment of his likelihood to offend, which is extremely low. I certainly am not convinced, along the lines of paragraph 69 of Proulx that the seriousness of any harm is so great that it should dominate the calculus.
It has been recognized by the Supreme Court that a conditional sentence can serve both punitive and rehabilitative masters, deterrence and rehabilitation being the historically dueling antagonists in sentence determinations over the years. The Criminal Code provides a range of tools to achieve the optimal outcome in sentencing, as precisely formulated as possible to suit the particular offender and his or her particular offences. The Code expresses a strong bent towards minimizing the use of real jail wherever possible; conditional sentences were one facet of various legislative amendments two-and-a-half decades ago to achieve that goal and to try to deflate Canada’s historic over-incarceration problem compared to most other industrialized democracies.
The principal factors driving the appropriate sentence for Mr. Carter include the following:
- Mr. King and Mr. Evans argued where Mr. Carter falls on the spectrum between a regulatory offender and an outlaw. If I were to draw that boundary using Mr. King’s distinction between possessing something one has no right to possess (which is true of both the selector and the Derringer) vs. possessing something otherwise lawfully but falling outside the prescribed lines for that possession, that would put Mr. Carter on Justice Doherty’s “outlaw” side of the divide. Mr. Carter is not an outlaw or anywhere close to it as Justice Doherty formulates that concept. I accept there was no malice in what he did. There was calculation with respect to the importation of the selector switch, awareness of wrongfulness and enough folly to swamp his intelligence, but no intention for the selector switches to be used for a criminal purpose other than satisfying his own curiosity. That being said, he is not comparable to the person who simply fails to secure a firearm safely or does not comply with all of the conditions of transportation attached to his permit (which Mr. Carter also did).
- The importation offence was not impulsive, but rather planned and followed through on. It required him to order the switches, to direct their delivery in the United States, to attend there to pick up the switches, to enter Canada and clandestinely introduce them as he passed through Customs. These were conscious choices; they appear very much to have been out of character, but at the time each choice was made, it was a conscious and deliberate choice.
- Had a converted Glock or a Glock with a switch for conversion to full auto fallen into criminal hands, the public safety consequences would have been dire. The notion of full-auto functionality in civilian hands is repugnant to the values expressed clearly by Parliament. If fully automatic firing was on Mr. Carter’s bucket list for his latest avocation, there is no shortage of gun ranges in the United States that could have satisfied that urge.
- There was no lawful basis for Mr. Carter’s possession of the Derringer and no plausible explanation for how it could have remained in his possession unknowingly insofar as he had to go through the usual formalities to transfer his father-in-law’s collection to himself. I accept Mr. King’s submission that had Mr. Carter’s possession of the Derringer been disclosed at the time of transfer, it is almost inconceivable that it would not have been tagged by the authorities. The same is true of the over-capacity magazines.
- There were no underlying mental health or addictions problems that might mitigate Mr. Carter’s moral responsibility for the offences.
- The sheer stupidity of Mr. Carter’s acts, for one as obviously intelligent as he is, is unfathomable.
- The offences did not involve a weapon in a public place, a loaded weapon or any criminality beyond the conversion to full auto (which should not be diminished for its own seriousness).
- He is a mature first offender.
- He has pleaded guilty.
- He has raised himself from a challenging home environment for most or all of his childhood through dint of hard work and admirable character to professional and community achievement well above the average.
- I take his remorse to be entirely genuine.
- I take the likelihood of reoffending, as noted above, to be virtually inconceivable. I think specific deterrence is largely irrelevant.
- There is, however, plenty of room for general deterrence and for denunciation, as well as room for rehabilitation and for Mr. Carter to make reparations to the community whose rules he violated. A conditional sentence can be fashioned to deter, so long as one keeps in mind that the nature of general deterrence in a particular sentence might best be focused on offenders of a similar danger as the person being sentenced.
I have come to the conclusion that a sentence of real jail as sought by Mr. King is not called for. Indeed, I think it would be harmful to Mr. Carter and to his prospects for rehabilitation and, while this cannot drive a sentence on its own, his removal from the various roles he has performed so well in his community and in his teaching would be counterproductive to the community’s interests. It would be very much in the community’s interests for him to continue to perform his class-leading performance as a teacher; inspired and inspiring teachers are worth their weight in gold. At the same time, I am of the view that the sentence sought by Mr. Evans, while appropriate in terms of its format, is inadequate in terms of its duration.
The Appropriate Sentence
I have concluded that a sentence of eighteen months’ imprisonment, to be served conditionally in the community, would be a fit sentence in the circumstances, to be followed by probation, with a two hundred hour community service component in each of the conditional sentence order and the probation order. There will also be an increased victim surcharge reflective of Mr. Carter’s admitted ability to pay and the importance of him making reparations to society for his foolhardy and criminal acts.
The eighteen month conditional sentence will be served entirely under house arrest with the usual conditions and exceptions and under electronic monitoring.
The probation order shall be for eighteen months. He shall only be required to report on the probation order until he has finished the two hundred hours of community service required under that order.
The importation offence occurred during the legislative lacuna after the Supreme Court of Canada found the original victim surcharge to be unconstitutional. The possession offence, however, occurred about six weeks after the enactment of the new victim surcharge. There will be a seven-thousand-five-hundred dollar victim surcharge on the 6 September, 2019 charge, to be paid not later than 1 April, 2022. This is another component of an overall fit sentence, providing as it does for another form of reparations by Mr. Carter to the community he put at risk.
Mr. Carter will attend at the police bureau at the courthouse at 59 Church Street St. Catharines not later than 4 p.m. on 19 November, 2021 and provide a sample of his DNA to the Niagara Regional Police on the two basket-clause secondary designated DNA offences he has pleaded guilty to. I am satisfied that, notwithstanding that he is a first offender, the nature of the offences, in particular the Glock selector switch offence, leaves no contest between his privacy interests and the public interest in retaining his DNA.
There will be an order pursuant to s. 110 of the Criminal Code prohibiting Mr. Carter from possessing the types of weapons listed therein for ten years.
Given Mr. Evans’s expressed consent there will be an order forfeiting the firearms, ammunition and devices seized from Mr. Carter’s residence and car.
Released: 5 November, 2021