SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 5-275/11
DATE: 20120329
RE: R. v. Jerome Mullings
BEFORE: Justice Spies
COUNSEL:
Danielle Scott , for the Crown
Kas Marynick , for Jerome Mullings
HEARD: March 9, 2012
decision on sentencing
Introduction
[ 1 ] On January 24, 2012, following a ten day trial, I found Mr. Mullings guilty of eight charges related to the possession of a loaded firearm:
• Count 1 – possession of a loaded restricted firearm without being the holder of an authorization or licence and registration certificate, contrary to section 95(2) of the Criminal Code .
• Count 2 – possession of a firearm knowing that he was not the holder of a licence and registration certificate, contrary to section 92(3) of the Criminal Code .
• Count 3 – possession of a firearm without being the holder of a licence and registration certificate, contrary to section 91(3) (a) of the Criminal Code .
• Count 4 – being an occupant of a motor vehicle in which he knew there was a handgun, contrary to section 94(2) (a) of the Criminal Code .
• Count 5 – carrying a firearm in a careless manner, contrary to section 86(3) (a) of the Criminal Code .
• Count 6 – carrying a concealed weapon contrary to section 90(2) (a) of the Criminal Code .
• Count 7 – possession of a weapon for a purpose dangerous to the public peace contrary to section 88(2) (a) of the Criminal Code .
• Count 8 – breach of a section 110 weapons prohibition order made on June 14, 2006, contrary to section 117.01(3) (a) of the Criminal Code .
[ 2 ] I reserved any issues with respect to R. v. Kienapple [^1] to be argued at the time of sentencing. Ms. Scott conceded that Count 3 should be conditionally stayed. Mr. Marynick submitted that Count 6 should also be stayed in light of the conviction on Count 7. Ms. Scott did not vigorously oppose this and advised the court that the cases go both ways on this issue. Both of these offences are designed to protect the same societal interests and when the offences are compared, I am satisfied that there is a sufficient proximity between the facts underlying the offences and the elements to establish criminality such that Count 6 should be conditionally stayed. It carries a five year maximum penalty as opposed to the ten year maximum on Count 7 and is, therefore, the less serious charge.
The Facts
Circumstances of the Offences
[ 3 ] Mr. Mullings came to the attention of police in the early morning hours of December 4, 2010, when he was observed by P.C. Madeley, outside Whispers, an afterhours nightclub with a reputation for problems with firearms. P.C. Madeley made certain observations of Mr. Mullings and came to the conclusion that he was possibly carrying a firearm. As Mr. Mullings was leaving Whispers in the rear seat of a vehicle, P.C. Madeley made a radio call to two uniformed officers who were to provide backup. They stopped the vehicle that Mr. Mullings was in along Rogers Road, just east of Weston Road in Etobicoke. The officer who quickly came alongside the passenger side of the vehicle observed that Mr. Mullings was holding a firearm in his lap; his right hand was on the handle of the firearm and his left hand was covering the barrel. After a high risk takedown involving these two officers with the assistance of several other officers who came to assist, Mr. Mullings and the front seat passenger and driver were arrested without incident. The firearm was seized from the floor of the rear passenger area. The firearm was a semiautomatic handgun and had one round in the chamber and an additional five rounds of .45 calibre ammunition loaded in the magazine. Mr. Mullings was arrested for possession of the firearm and a small amount of marijuana but the drug charge did not proceed before me and I have no information as to how it was dealt with.
Circumstances of Mr. Mullings
[ 4 ] Mr. Mullings is twenty-four years old. He has been in a relationship for five years with the mother of his one year old son who was born while he was in custody on these charges.
[ 5 ] Mr. Mullings has a very serious criminal record as follows:
DATE OF CONVICTION
OFFENCE
DISPOSITION
May 5, 2006 (Youth Justice Court)
- Obstruct Peace Officer
12 Months Probation (2 Days PTC)
June 14, 2006
- Assault with Intent to Resist Arrest 3) Possession of a Schedule II Substance 4) Fail to Comply with Recognizance
1-3) Suspended Sentence and One Year Probation (68 days PTC), Sec. 110 order for 5 years
November 10, 2006 (Youth Justice Court)
Possession of a Weapon (a knife)
6 Months Probation
October 9, 2007
Flight while pursued by Peace Officer 2) Dangerous Operation of a Motor Vehicle 3) Fail to Comply with Probation Order
One Day (58 days PTC) & probation 2 years 2-3) 1 Day and 2 Years Probation on each charge concurrent and 3 Year Driving Prohibition
November 29, 2007
- Fail to Comply with Recognizance (x4) 2) Fail to Comply with Probation 3) Possession of a Prohibited Weapon (a knife) 4) Weapons Dangerous
30 Days and (13 Months PTC) 12 Months Probation Section 109 Order (no time specified) (concurrent on all counts)
[Content continues exactly as in the original decision…]
SPIES J.
Date: March 29, 2012
[^1]: 1974 SCC 14, [1975] 1 S.C.R. 729
[^2]: 2012 ONSC 602
[^3]: 2011 ONSC 4874
[^4]: 2011 ONSC 4051
[^5]: [2007] O.J. No. 1205 (S.C.J.)
[^6]: 2011 ONSC 241
[^7]: 2010 ONCA 796
[^8]: 2011 ONSC 5206
[^9]: 2012 ONSC 58
[^10]: [2008] O.J. No. 697 (S.C.J.)
[^11]: [2008] O.J. No. 2231 (S.C.J.)
[^12]: [2005] O.J. No. 5321 (S.C.J.)
[^13]: R. v. J.G., [2005] O.J. No. 4599 (S.C.J.); R. v. Danvers (2005), 1999 C.C.C. (3d) 490 (Ont. C.A.); R. v. Ferrigon, 2007 ONSC 16828
[^14]: 2010 ONCA 745
[^15]: 2009 ONCA 563
[^16]: 2010 ONSC 3213
[^17]: 2007 ONSC 16828
[^18]: R. v. J.G., [2005] O.J. No. 4599 (S.C.J.); R. v. Manning, [2007] O.J. No. 1205 (S.C.J.)
[^19]: 2011 ONCJ 593
[^20]: R. v. Arcand (2004), 2004 ONCA 46648
[^21]: (1991), 1991 ONCA 7174