Court and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 04 04 COURT FILE No.: Fort Frances 200696

BETWEEN: HIS MAJESTY THE KING

— AND —

Lee Mosley

Before: Justice E J Baxter

Heard on: September 22, 2021, March 30, 2022, June 23, 2022, July 8, 2022, September 13, 2022, February 17, 2023 & April 4, 2023 Reasons for Judgment released on: April 4, 2023

Counsel: Kirsten Weirsma & Elizabeth Pats................................................. counsel for the Crown Peter Howie................................................................ counsel for the accused Lee Mosley

Reasons for Sentence

Baxter J.:

[1] Lee Mosley was convicted of 4 of 6 offenses after a trial of his matters. He was convicted of pointing a firearm contrary to s. 87 of the Criminal Code; possessing a weapon contrary to a s. 109 order and pursuant to s. 117.01 of the Criminal Code, failing to comply with a release order contrary to s. 145(5)(a) of the Criminal Code and possessing a weapon when not authorized to do so contrary to s. 91(1) of the Criminal Code.

[2] Mr. Mosley was found not guilty of possession of property obtained by crime under s. 354(1) of the Criminal Code and possession of a weapon for a dangerous purpose contrary to s. 88, because the Crown indicated Kienapple applies to this charge, and no conviction should be entered for this count.

[3] Mr. Mosley was in custody for a portion of his trial on other charges.

[4] The charges arose from an incident that occurred on September 24, 2020. Mr. Mosley had purchased 4 stolen tires (unmounted) belonging to a local Fort Frances tire shop, Pro Shine. The tires been reported stolen around September 18, 2020. Mr. Mosley had informed the owner, Chad Jackson, he would drop the tires to him at the shop by end of the day on September 24, but he did not do so.

[5] Mr. Jackson and his son, Logan Jackson, and a person named Cory, then went to Mr. Mosley’s trailer at the Walleye Trailer Park to retrieve the tires themselves. When they arrived at the trailer, they peered over a fence, but did not see any tires in that yard. Out of concern about possible aggressive dogs, Mr. Jackson had an axe handle with him.

[6] Once the trio found out Mr. Mosley was not home, they learned Mr. Mosley may be at his other residence on 6th Street. Logan Jackson departed the trailer park on his motorcycle and went to the 6th Street location to find the tires.

[7] At some point, Mr. Chad Jackson got word from Logan that he found the tires behind the Mosley property on 6th Street and to send James MacDougall with his truck to pick up the tires.

[8] At the Mosley 6th Street property Logan Jackson and James MacDougall are confronted by Mr. Mosley who came out of the back of the house brandishing a handgun in his right hand and a clip in the other. There was a fence between the men. Words were exchanged, and Mr. Mosley assured Mr. Jackson the gun was real. The other 2 men were not armed.

[9] The gun was described as a black and green handgun that looked like the kind police usually carry. Mr. Jackson also drew a sketch of the clip/magazine he saw in Mr. Mosley’s other hand. Mr. Jackson said he heard the sound of metal on metal and was a few feet from the barrel which was concerning to him.

[10] Mr. Jackson indicated the gun was pointed directly at him for a few seconds and that Mr. Mosley also waved the gun around without pointing it at him at other moments. He described Mr. Mosley as holding the gun incorrectly at an angle when he pointed it at Mr. Jackson’s head.

[11] Mr. MacDougall also testified he saw the gun pointed at Mr. Jackson by Mr. Mosley, and it resembled his father’s police gun. He waited until the gun was not being waved or pointed before he got out of his truck, and Mr. Jackson began to load up the tires. He noted words were exchanged between Mr. Jackson and Mr. Mosley. He said he was a “bit shaken up” by the incident.

[12] The tires were loaded into the truck and the two men left, but not before Mr. Mosley indicated to Mr. Jackson that he would find out who he was and would be seeing him soon.

[13] The men returned to Pro Shine and police were called. Mr. Mosley was then charged with the offenses for which he was tried.

[14] Mr. Mosley has a criminal record that is fairly dated and does not have any convictions pertaining to guns or weapons. He has a conviction for an assault in 2003 for which he received a fine and 1 year probation. In 2004 he was convicted of impaired driving and received a fine and a 1 year driving prohibition. In 2010 he was convicted of Assault causing bodily harm, and assault for which he was imprisoned for 12 months and 30 days consecutively as well as a s. 109 weapons prohibition for ten years. The s. 109 order was in place at the time of this incident and was set to expire on November 15, 2020.

[15] A pre-sentence report was ordered and produced.

[16] The defense argued Mr. Mosley should receive a sentence in the range of 9 to 12 months.

[17] The Crown is seeking a penitentiary sentence of 4.5 years.

[18] The pre-sentence report generated for this hearing was not as helpful or as positive as others this court has seen. Mr. Mosley demonstrated a marked lack of insight and self-awareness in addressing his actions and issues. He showed limited remorse for his offenses, except to say his behaviour here was “stupid”. Mr. Mosley was clearly saying the right things to the writer without regard to the fact many of his claims were easily refuted.

[19] Mr. Mosley was born in 1979 and was 43 years of age at the time of the writing of the PSR. He was born in Fort Frances and was the only child born to his parents who raised him well enough, but they were heavy users of alcohol. He grew up with some exposure to violence and substance abuse in the home. Mr. Mosley did grow up with his grandparents nearby and did benefit from being with them regularly.

[20] Mr. Mosley has a high school education and did have a work history that involved operating heavy equipment in Alberta for some years. He also worked in a gold mine located near Fort Frances. He left the job at the gold mine when his parents’ health declined, and he became their caregiver.

[21] His parents passed away from illness related to alcohol consumption, and they left their house on 6th Street in Fort Frances to Mr. Mosley – the house where these offenses took place.

[22] Mr. Mosely has fathered 7 children with multiple women and does not have a relationship with them, nor does he financially support them. He has had at least two long term relationships, and his last partner died recently of an apparent drug overdose.

[23] In his younger years, Mr. Mosely was exposed to the suicide of one of his father’s friends, and while Mr. Mosley was in custody awaiting his trial, a young man committed suicide in a nearby cell.

[24] Mr. Mosely acknowledged using drugs and alcohol in the past but denied current use of any substances except cigarettes to the PSR writer. Interviews with Mr. Mosley’s former partner and a local police officer refute his claims of being drug free and sober.

[25] Mr. Mosley has suffered trauma and loss in his life as noted in the PSR, but there is little to indicate whether he took steps in his life to address these issues in a constructive way.

[26] Overall, the PSR was not positive and demonstrated to this court that Mr. Mosley has not adequately addressed his issues, his background and his plans for the future in a way that gives the court any comfort in Mr. Mosley’s ability to be readily rehabilitated.

[27] The Crown filed several cases to support their position on the sentence of 4.5 years. The majority of the cases filed related to incidents that took place in southern Ontario and involved, in some cases, more serious facts than the case at bar. However, it is clear from the jurisprudence that the courts have taken a firm stance on how to sentence firearms offenses, with the principles of denunciation and deterrence being given serious consideration by the courts.

[28] However, I note the cases filed by the Crown deal mainly with s. 95, while the instant case is a s. 91 case.

[29] R. v. Chizanga and Meredith, 2020 ONSC 4647, was referred to by the Crown for its commentary of the scourge of guns in our society. This is a parole eligibility case and had far more serious facts than the instant case. However, the commentary on guns at paragraphs 7 to 10 of the decision stresses that guns are used to threaten, maim and kill people. “Guns empower the unempowered. A person with a gun in their hands has a god-like power over life and death. Virtually all that is necessary is to point at another person and to apply a few pounds of pressure on the trigger in order to end a human life…Such immense power with so little reason must be opposed with everything at our disposal.”

[30] R. v. Carrol, 2014 ONSC 2063, the offender was sentenced to 4.5 years for possessing a loaded handgun, breaching two s. 109 orders, breaching a probation order and other related offenses. Denunciation and deterrence were the focus of the sentence imposed here and that typically a breach of a s. 109 order ought to be a consecutive sentence starting at 12 months, given the need to stress the seriousness of breaching court orders.

[31] R. v. Claros, 2019 ONCA 626, a case from Thunder Bay in Northwestern Ontario, and Hamilton dealt with a sentence appeal. The offender was sentenced to 5 years imprisonment for discharging a firearm with other offenses being concurrent, including a breach of a s. 109 order. The Court of Appeal noted the s. 109 breach ought to be made consecutive. The facts of this case are not on par with the facts of Mr. Mosley’s offenses, but the sentencing principles outlined are applicable here.

[32] R. v. Ferrigan, 2007 ONCJ 188, was referenced for additional commentary about gun offenses. At paragraph 25 the court noted that “Guns are dangerous. Handguns are particularly dangerous…A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it…That person is dangerous.”

[33] R. v. Hashimi, 2019 ONSC 812, provides sentencing guidance for similar offenses as the case at bar. Mr. Hashimi received a sentence of 2.5 years for pointing a firearm and 18 month consecutive for the s. 109 breach (along with other offenses sentenced for a total sentence of 6.5 years). The court stressed the need for denunciation, deterrence and parity of sentencing.

[34] R. v. Kawal, 2018 ONSC 7531, offers additional commentary of the gun problem in the greater Toronto area at paragraph 16: “A person does not stumble upon an illegal handgun…The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.”

[35] Finally, the Crown relied on R. v. Nur, 2015 SCC 15, to support the sentencing principles that are key to gun offenses. However, that case dealt mainly with mandatory minimum sentences and s. 95 of the Criminal Code, which is not the issue in the present case.

[36] Counsel for Mr. Mosley argued there were no significant aggravating factors in this case, and the sentence requested by the Crown was disproportionate. Counsel argued the maximum sentences available for pointing a firearm and possessing a firearm are 5 years each, while breaching an order under s. 109 can attract a maximum sentence of 10 years. Mandatory minimum sentences are not available for the offenses committed by Mr. Mosley.

[37] Counsel argued Mr. Mosely pointed the firearm for a few seconds and there was a fence between Mr. Mosely and the 2 witnesses. Mr. Mosley did not leave his property and that it was he who was afraid for his safety given he had got word that people were out looking for him that day. Once he knew he was not in any particular danger, he lowered the gun. There were no other acts of violence committed that day.

[38] Further, even though Mr. Mosley was on a s. 109 order, it was set to expire in two months, which is not as aggravating had the breach been committed early on in the prohibition period. The only aggravating factors defense counsel admitted were the fact of Mr. Mosley being on a release order, a s. 109 order and the fact he had no license to possess a firearm. In addition, counsel argued the incident did not take place in a busy public area or in a domestic violence context.

[39] Counsel argued he had difficulty finding sentencing decisions that do not have extreme facts compared to this case. He referred to R. v. Alvarez, 2021 ONCA 851, R. v. Brook, 2012 BCSC 184, R. v. Grier, 2011 ONSC 3848, R. v. McKay [1998] O.J. No. 3608 (Prov. Ct.), and R. v. Nadon, 2016 ONSC 3518, to demonstrate sentences in the 12 month range for point firearm, attempt murder and other weapons offenses.

[40] The Crown argued the pointing of the firearm at Mr. Jackson posed a real threat to his and the public’s safety. This was not a spontaneous event as couched by the defense. The fact this altercation took place over 4 stolen tires between 3 grown men, two of whom were not armed and posed no real threat to Mr. Mosley, is aggravating. The fact of the fence and the short duration of the encounter matters not since it only takes a nano second to pull a trigger and end a life or seriously injure someone.

[41] Mr. Mosley was not a legal gun owner. He was on a prohibition order and a release order – both of which he disobeyed and somehow got his hands on a gun illegally and used it to threaten Mr. Jackson.

[42] The Crown further argued that Mr. Mosley had attracted numerous firearms, weapons, breach and drug charges (over 30) while on release for these charges which demonstrates he does not have respect for the law and he has a low chance for rehabilitation given his age and history. The outstanding charges have not yet been addressed in court, and he still has the presumption of innocence until/unless he is found guilty.

[43] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." (See s. 718)

[44] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f))

[45] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to Mr. Mosley’s circumstances, and the circumstances of the offences he committed.

[46] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. (See s. 718.2(a)) This would include features of Mr. Mosley’s background, features of the crimes he has committed, the timing of his guilty plea (if any), and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by the higher courts, with regard to particular aspects of this case that I must give significant consideration to.

[47] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case:

[48] The aggravating factors I have found are: (1) The handgun was real, and one witness said Mr. Mosley “racked” the gun. (2) Mr. Mosley had ready access to a clip or more ammunition. (3) He was prohibited from possessing any firearms. (4) Mr. Mosley does not have a license to possess or own firearms. (5) He was on an interim release order at the time of these offenses. (6) The incident happened in a residential neighbourhood, in broad daylight. (7) Mr. Mosley used the gun to threaten or intimidate 2 witnesses. (8) He pointed the gun at a witness’ head. (9) Mr. Mosley posed a real threat to the safety of the witnesses present and to the public in general.

[49] The mitigating features of this case are: (1) He has no previous firearms convictions (2) PSR reveals a history of some trauma and loss in his life

[50] I find the submissions of defense counsel to fail to take into account just how serious this incident was. Someone could have been injured or killed. Mr. Mosley’s behaviour was outrageous and completely unjustifiable. The minimization of the actions of Mr. Mosley does not amount to any sort of mitigation of the blatant disregard Mr. Mosley had for human life, public safety, the law, and the orders he was bound by. He had no right to act in the manner he did.

[51] The fact this type of gun violence was not common in northwestern Ontario is not a valid consideration and is not accurate given what has been covered in the media of late. Guns and drugs and the associated criminal behaviour those items bring have become a real threat and blight on our small northwestern Ontario communities as more and more of this type of activity makes its way north from southern Ontario.

[52] Further, regardless of how far into a s. 109 order an offender is when an order is breached is completely irrelevant and not a factor I will take into account to be mitigating in any way.

[53] Mr. Mosley took extreme, unlawful steps to confront 2 unarmed men who were simply recovering stolen property for Mr. Jackson’s father. The tires were not on Mr. Mosley’s property.

[54] The whole situation was completely unnecessary and demonstrates Mr. Mosley is unable to control his behaviour and act in a mature, responsible manner. He needs to be separated from the community. The question is for how long?

[55] However, I find the Crown’s position to be too high given Mr. Mosley’s record, his background and the nature of the offenses here. Having said that, I do need to ensure a message is sent to others who might contemplate behaving in the same way and to ensure Mr. Mosley himself receives the message that his behaviour in this incident will not be tolerated and that he must pay the consequences for what he did here.

[56] Given everything I have taken into consideration, I am sentencing Mr. Mosley as follows: (1) For the point firearm contrary to s. 87 of the Criminal Code, (count 2) I sentence Mr. Mosley to 2 years imprisonment. He will receive credit on a 1.5:1 basis for his pre-sentence custody of 448 days, enhanced to 672 days or 22.4 months. This leaves him with 58 days going forward. (2) For possessing a firearm in breach of a s. 109 order and contrary to s. 117.01(1) of the Criminal Code (count 4) I sentence Mr. Mosley to 12 months custody consecutive. (3) For the s. 91(1) count 5, I sentence Mr. Mosley to 12 months custody concurrent. (4) For the s. 145(5)(a) count 6, I sentence Mr. Mosley to 60 days custody concurrent.

[57] In the result, Mr. Mosley has 423 days or 14.1 months left to serve of this 3 year sentence.

[58] As for the ancillary orders, I order Mr. Mosley to provide a sample of his DNA and that he be placed on a s. 109 order for life as this is his second order.

Released: April 4, 2023 Signed: Justice Evelyn J. Baxter