ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-10404

DATE: 20120514

B E T W E E N:

HER MAJESTY THE QUEEN

Brian McCallion, for the Crown

• and -

ANTONIO CARANCI

Anthony Robbins, for Mr. Caranci

HEARD: May 8, 2012

REASONS FOR SENTENCE

LAUWERS J.

[ 1 ] Mr. Caranci was charged with careless storage of a firearm, contrary to section 86(3) of the Criminal Code ; possession of a firearm while not being the holder of a licence permitting such possession contrary to section 91(2) of the Code ; and possession of a loaded firearm, contrary to section 95(2) of the Code . The Crown, for reasons not disclosed to the court, accepted a plea to careless storage of a firearm, which was the least serious charge that Mr. Caranci faced, and effectively abandoned the other two more serious charges.

[ 2 ] The background facts in this matter are set out in my decisions at 2012 ONSC 734 , and 2012 ONSC 3470 . After those decisions dismissing the motions by Mr. Caranci for relief, he re-elected the mode of trial and pleaded guilty to careless storage of a firearm.

[ 3 ] The facts read in by the Crown and accepted by the defence are the following:

On November 7, 2009 members of the YRP Drugs and Vice unit executed a search warrant on the residence of Mr. Caranci located at 7 Queensbury Cres., Vaughan. A search warrant was also executed on the place of business owned and operated by Mr. Caranci, namely the Spa at Tiffany’s located at 435 Bowes Road, Vaughan.

The warrants were the result of an investigation into Caranci’s suspected operation of a bawdy house at the Tiffany’s Spa. During surveillance conducted in the weeks prior to November 7 th , officers observed Caranci transfer items from the Spa to his vehicle, a Bentley, and drive to his residence. This occurred on two occasions. On both occasions Caranci entered the garage in his vehicle, and the garage door closed behind him.

On November 5 th officers from the surveillance unit observed Mr. Caranci drive a Bentley, with license plate BHFP 683, from the area of his residence to the Spa and he entered the business on foot. After some time Mr. Caranci exited the Spa and drove the vehicle back to his residence. Mr. Caranci parked the vehicle in the garage of the residence.

When officers executed the warrant at the residence on November 7 th , they searched the Bentley, license plate BHFP 683, which was parked in the garage. Det. Troung located a .380 calibre hand gun, loaded with 5 rounds of ammunition, in the driver’s side door panel. The firearm was tested and analysed by a firearms expert from YRP and determined to be a prohibited firearm.

[ 4 ] There are additional facts canvassed by counsel. The story was that the gun was left in the car by a friend. Mr. Caranci knew the gun was in the car because his friend called him and told him. The Crown was not able to prove that Mr. Caranci owned the gun, but noted that it was still possession, albeit fleeting, since he knew the gun was there Even so, the Crown chose not to proceed on the possession charges.

The Positions of the Parties

[ 5 ] Under section 86 of the Code , the maximum sentence for a first conviction of careless storage of a firearm is imprisonment for “a term not exceeding two years.” The Crown is seeking a custodial sentence of 8 months.

[ 6 ] The defence submits that the Crown’s proposed sentence would be disproportionate and that, taking all of the relevant factors into account under section 718 of the Criminal Code and the cases, a suspended sentence accompanied by probation for two years and 200 hours of community service would be most appropriate. In the alternative, the defence suggests that a conditional sentence between 9 and 12 months would be appropriate. In the further alternative, if the court considers that some jail time should be imposed on Mr. Caranci, then the sentence should be 90 days or less. The defence consents to the Crown’s ancillary requests under section 110 of the Criminal Code for a weapons prohibition for 10 years, and under section 491 of the Criminal Code for a forfeiture of the recovered firearm.

Analysis

[ 7 ] In this section I consider: first, the sentencing principles as they apply to the offence; second, the cases; and third, the prospect of a conditional sentence.

The Relevant Sentencing Principles

[ 8 ] Section 718 of the Criminal Code sets out, among others, the following objectives of sentencing:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

… and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[ 9 ] Section 718.1 provides that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Section 718.2 obliges a court to consider whether “a sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to the offence or the offender.” It also provides that: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

The Crown’s Cases

[ 10 ] The Crown relies on the decision of R.A. Clark J. in R. v. Dass , [2008] O.J. No. 1161, at paras. 29-31 to emphasize the seriousness of weapons offences in the Greater Toronto Area:

29 Turning to the firearms offences, they, too, are considered quite rightly to be very serious.

30 In R v. Jarsch , 2007 BCCA 189 , [2007] B.C.J. No. 738, (B.C.C.A.), Smith J.A. stated at para. 5 ff.:

"Before sentencing the appellant, the trial judge observed that the minimum sentence for possessing a loaded prohibited firearm is one year and the maximum is 10 years, and that the maximum sentence for occupying a motor vehicle with an unauthorized firearm is also 10 years. She noted that before amendments to the Criminal Code in 1998, there was no minimum sentence for the first offence I have just mentioned and the maximum for the second was five years. Thus, she stated, Parliament intended by its amendments that these offences be treated more seriously than they had been previously.

Further, she observed that the paramount sentencing objectives for these offences are public safety, general and specific deterrence, and denunciation, and that rehabilitation, while important, is a secondary concern. She noted as well that the essence of these offences is the potential for violence and physical harm and that the degree of readiness of the offender for violent action can be an aggravating factor."

31 Likewise, in R v. Danvers , 2005 30044 (ON CA) , [2005] O.J. No. 3532, (C.A.), Armstrong J.A., at paras. 77 ff. stated:

"In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:

Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole ineligibility. Society must be protected from criminals armed with deadly handguns.'

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed."

[ 11 ] In R. v. Fletcher , [2008] O.J. No. 697 (Spies J.) the accused was convicted of a number of weapons charges, including possession of a loaded restricted firearm, a loaded prohibited firearm, possession of two firearms knowing that they were obtained by the commission of an offence in Canada, and two counts of careless storage. At para. 39, Spies J. said:

39 I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, given these are firearms convictions, are paramount considerations in this case. Firearms, particularly loaded firearms that are immediately ready to be fired, can have only one purpose and that is to commit criminal acts and take the life of someone or at least cause one or more persons very serious injury. Unfortunately it has become an all too regular occurrence in these courts for judges to express society's abhorrence of guns in our community and many judges in dealing with the sentencing of those convicted of firearms offences have commented on the serious public safety issues associated with the possession of firearms, particularly in the City of Toronto.

[ 12 ] Spies J. imposed a sentence of imprisonment for a term of two years in relation to the counts for careless storage to run concurrently with a number of five year sentences relating to possession.

[ 13 ] In R. v. Ford , [2010] B.C.J. No. 842 (B.C.C.A.) , the Court imposed an eight month sentence for unsafe storage of a firearm concurrent with a number of drug offences.

[ 14 ] The Crown also relies on R. v. P.M ., 2012 ONCA 162 , [2012] O.J. No. 1148. The court imposed a six-month concurrent sentence for weapons offences which dealt with three long guns that were not stored safely or registered and a box of ammunition. This was, however, a Crown appeal from a global sentence of six years’ imprisonment imposed on guilty pleas to sexual assault, incest, sexual interference, making child pornography, possessing child pornography, and careless storage of a firearm.

The Defence Cases

[ 15 ] The defence relies heavily on the decision of the Ontario Court of Appeal in R. v. Stevens (2011), 2011 ONCA 504 , 106 O.R. (3d) 241, [2011] O.J. No. 3164, where Armstrong J.A. said at para. 62:

Counsel for the Crown appropriately argues that "[g]enerally speaking, firearms related offences are serious". While this court has often clearly stated that gun crime is very serious, it is usually in reference to gun violence. Gun safety is clearly very important, but the offences of careless storage of firearms and ammunition are far less serious than violent crimes involving guns. The less serious character of these offences is reflected in the appellant's sentence, which was a suspended sentence and twelve months probation.

[ 16 ] The Court of Appeal allowed the appeal, set aside the conviction, and entered verdicts of not guilty because of the presence of illegally obtained evidence; these words of Armstrong J.A., while obiter, signal the importance of distinguishing between lesser and more serious gun-related offences.

[ 17 ] Mr. Robbins for the defence referred to a number of cases involving discharges but advised Mr. Caranci was not seeking. He also referred to a number of cases in which relatively modest fines were imposed, but did not suggest that a fine would be appropriate.

[ 18 ] Mr. Robbins spent some time on cases involving suspended sentences. In my view, the seriousness of this offence does not merit a suspended sentence. Such a sentence would not accomplish any of the relevant sentencing goals; it would not amount to a denunciation of a gun crime, and it would not serve to deter this offender or other possible offenders from committing offences. In my view, even considering the bail conditions that Mr. Caranci had to work through, the overall sentence would not assist in rehabilitating him or promoting a sense of responsibility in him. A suspended sentence would not be proportionate to the gravity of the offence.

[ 19 ] Finally, Mr. Robbins went over a number of cases in which conditional sentences were imposed.

The Prospect of a Conditional Sentence

[ 20 ] Section 742.1 of the Code permits a court to order that an offender serve a sentence of imprisonment of less than two years in the community, subject to strict conditions, which is known as a conditional sentence, where certain statutory prerequisites are met. Those, as identified by the Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at paragraph 46 are:

(1) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(2) The court must impose a term of imprisonment of less than two years;

(3) The safety of the community would not be endangered by the offender serving the sentence in the community; and

(4) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[ 21 ] Mr. Caranci does not have a criminal record. Although I would not describe him as youthful, his rehabilitation prospects are reasonable. Accordingly, I am particularly mindful of the words of Rosenberg J.A. in R. v. Priest (1996), 1996 1381 (ON CA) , 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 at 295, para 20 (C.A.), that “[t]he duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence.” See also R. v. Stein (1974), 1974 1615 (ON CA) , 15 C.C.C. (2d) 376, [1974] O.J. No. 93 at 377, para 4 (C.A.). In Priest , the court held that the primary objectives of sentencing a first offender are individual deterrence and rehabilitation and are best achieved by either a suspended sentence and probation or a very short term of imprisonment. I also am mindful of the provisions of sections 718.2(d) and (e) to the effect that an offender should not be deprived of his liberty where a less restrictive sanction may be appropriate and that all other available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered.

[ 22 ] Before imposing a conditional sentence, a judge must determine that there is no minimum term of imprisonment for the offence of which the offender has been found guilty, and must reject both a probationary sentence and a custodial term as inappropriate: see Proulx , at paragraph 77 . Further, the judge must be satisfied that having the offender serve the sentence in the community would not endanger its safety: see Proulx , at paragraph 69 . If the judge finds that there is a real risk of re-offence, incarceration should be imposed.

The Conditional Sentence Cases

[ 23 ] Mr. Robbins cited R. v. Anderson , [2009] O.J. No. 5828 (O.C.J.) . The conditional sentence in that case was for twenty-two months followed by three years of probation. Maisonneuve J. found the aggravating factors to be the type of drugs that were found, the quantity of drugs, the weapon, the bullets, and the combination of both the weapons and the drugs. The Court imposed an eighteen month sentence to be served in the community.

[ 24 ] In R. v. Bogdan , [2007] M.J. No. 156 (P.C.J.) , the Court held at para. 20:

20 The second criterion is that the court must be satisfied that serving this sentence in the community would not endanger the safety of the community. Despite the circumstances of the offences in this case involving weapons and ammunition, and the offender's re-involvement while on judicial interim release, I am nonetheless satisfied that allowing him to serve his sentence of imprisonment in the community would not compromise its safety. I come to this conclusion for three reasons. First, while acknowledging the inherent dangers of the weapons and ammunition in this case, it is important that none of the weapons were brandished, discharged, or used in any intimidating fashion. Second, the offender has no prior criminal record. Finally, he has complied with very strict terms of judicial interim release for a period in excess of one year.

In relation to careless storage, possession of a prohibited weapon, breach of recognizance, among a number of offences, the Court imposed a global twelve month sentence of imprisonment to be served in the community.

[ 25 ] In R. v. Canepa, 2011 ONSC 1406 , [2011] O.J. No. 924 (S.C.J.), the Court found at para. 10 that aggravating circumstances included the fact that the gun was loaded and that it was found in conjunction with a small quantity of drugs. Nordheimer J. said at paras. 17-18:

17 I have concluded on balance that a conditional sentence is appropriate in this case. Andrew is a young man who made a mistake, admittedly a serious mistake. However, there is no evidence that he poses any danger to the community that would preclude him from being a candidate to serve his sentence in the community. I also consider that a conditional sentence can achieve the objectives of denunciation and deterrence and at the same time provide an opportunity for the rehabilitation of Andrew as well as promoting in him a proper sense of the responsibility that he has to our community, particularly in respect of his future conduct. Incarcerating Andrew would not advance these other important sentencing objectives.

18 In reaching my conclusion I have also taken into account that Andrew was on strict terms of his release pending trial. He has thus demonstrated his willingness and ability to comply with court imposed restrictions on his conduct. I have also taken into account the impact of those strict terms of release in determining the length of the conditional sentence that I consider to be appropriate.

[ 26 ] In R. v. Kerr , 2001 21142 (ON CA) , [2001] O. J. No. 5085 (C.A.), the Court converted an eighteen month custodial sentence into eighteen months conditional. The conviction was for three counts of trafficking in heroin and one count of improperly storing a firearm. The appellant was approximately 27 years old at the time of the sentencing.

[ 27 ] Finally, in R. v. Waller , [2005] O. J. No. 3610 (O.C.J.) , the Court imposed a two year conditional sentence for careless use of a firearm. The gun was used by the spouse of the convicted person to commit suicide.

Applying the Sentencing Principles to this Case

[ 28 ] As noted above, Mr. Caranci was charged with careless storage of a firearm, contrary to section 86(3) of the Criminal Code ; possession of a firearm while not being the holder of a licence permitting such possession, contrary to section 91(2) of the Code ; and possession of a loaded firearm, contrary to section 95(2) of the Code .

[ 29 ] Superior Court judges are fully alive to the seriousness of firearms charges, particularly in the Greater Toronto Area, which includes this Region. That said, the Crown, for reasons not disclosed to the court, accepted a plea to careless storage of a firearm, the least serious charge that Mr. Caranci faced, and effectively abandoned the other two more serious charges. I make two observations. First, the Crown’s sentencing theory seems to be that the Court can sentence Mr. Caranci as though he had been convicted of the possession charges even though the Crown specifically gave up on those charges and accepted a guilty plea to a lesser offence. In my view to do so would be contrary to the Court of Appeal’s decision in R. v. Stevens , since careless storage offences are less serious .

[ 30 ] Second, it is important to be careful in utilizing cases such as those tendered by the Crown in which the firearms conviction was coupled with other often more serious offences. I am reluctant to winkle out the specific sentences related to the gun charges and to assume that they would have been imposed even if there had not been convictions on the more serious charges. These cases are not comparable to this case. The Crown has not pointed to a comparable case in which the Court imposed an eight month custodial sentence; in keeping with section 718.2 of the Code , I must advert to comparable cases.

[ 31 ] The defence submits that the cases support a conditional sentence. To repeat, before imposing a conditional sentence, a judge must determine that certain prerequisites have been met, as identified by the Supreme Court of Canada in R. v. Proulx .

[ 32 ] I am satisfied that the prerequisites are met in this case: Mr. Caranci has been convicted of an offence that is not punishable by a minimum term of imprisonment; the court must impose a term of imprisonment of less than two years; and, in my view the safety of the community would not be endangered by Mr. Caranci serving the sentence in the community. I am also satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.

[ 33 ] Mr. Caranci’s personal circumstances are relevant. He was born on November 19, 1973, and was 36 at the time of the offence. He is now 39 years of age. He has been married for five years and his wife is now pregnant with their first child. He has significant family support as was evident before me. Mr. Caranci operates a landscaping and snow removal business and also does construction contracting. He has twelve full-time employees. He picks up other employees as certain circumstances require. Mr. Robbins filed a number of reference letters from business associates of Mr. Caranci from what appear to be substantial enterprises.

[ 34 ] The mitigating factors in this case are that Mr. Caranci has pleaded guilty and has thereby accepted responsibility for his conduct. He made a personal statement expressing his remorse that I find to be sincere. Mr. Caranci has no prior criminal record. He is gainfully employed. Mr. Caranci complied with the bail conditions without incident.

[ 35 ] An aggravating factor in this case is that the gun was loaded and ready to fire. On the other hand, the gun was in a locked car and in a locked garage that had a security system in place, and was relatively secure.

[ 36 ] The court emphasized in Proulx , that sentencing is an individualized process. There is no such thing as a uniform sentence for a particular crime. In determining a fit sentence, a judge must consider the specific circumstances of the particular offender and his or her offence or offences.

[ 37 ] There is no presumption against conditional sentences for certain types of offences: see Proulx , at paragraph 81 . Although there may be circumstances in which the need for denunciation or deterrence is so pressing that incarceration is warranted, a conditional sentence can provide significant denunciation and deterrence, particularly if sufficiently punitive conditions are imposed. A conditional sentence has both punitive and rehabilitative objectives.

[ 38 ] Mr. Caranci spent five days in custody. He experienced the negative effects of the charge, including lost contracts, some financial difficulties, and stresses within his marriage. I am obliged to take into account, in some way, the time that the accused spent on bail under house arrest: R. v. Downes , 2006 3957 (ON CA) , [2006] O.J. No. 555, at para. 41 . The bail conditions were relatively strict at the beginning in November 2009 amounting to house arrest, which affected the applicant’s ability to earn an income. These conditions were varied after two months on January 8, 2010, to allow him to work. The work hours were varied on May 14, 2010, to allow him to work from 6:00 a.m. to 9:30 p.m. This confinement went on for about 16 months. The house arrest conditions were finally deleted on March 30, 2011. I have considered the impact of the brief incarceration and the bail conditions on Mr. Caranci in fixing the sentence I impose today.

Mr. Caranci will you please stand up?

[ 39 ] On the charge of careless storage of a firearm, I sentence you to nine months to be served in the community on the following conditions:

(i) You are to keep the peace and to be of good behaviour;

(ii) You are to appear before the court as and when required;

(iii) You are to report to a supervisor within two working days of today and thereafter when required by and in the manner directed by the supervisor;

(iv) You are to remain in the Province of Ontario unless written permission to leave the province is obtained from your supervisor or approval is given by the Court;

(v) You are to notify your supervisor or the Court in advance of any change of name or address and promptly notify your supervisor or the Court of any change of employment or occupation;

(vi) You are to reside at your family home or at an address approved by your supervisor, and for the first six months of your sentence you are to observe a curfew to be in your residence at all times except for the following purposes: attending work and travelling directly to and from job sites relating to employment with your construction and landscaping companies between the hours of 6:00 a.m. and 9:30 p.m.; attending at a hospital, doctor’s or dental office, and travelling to and from same; and attending religious services in daylight hours and travelling directly to and from same; and attending to legal obligations related to this conditional sentence order.

(vii) You are to perform 200 hours of community service work as specified by your supervisor at a rate not less than 15 hours per month to be completed to the supervisor’s satisfaction within 9 months.

(viii) You are to abstain absolutely from the possession and/or consumption of any drugs or other substances prohibited by law;

(ix) You are not to possess any weapons as defined in the Criminal Code ;

(x) You are not to apply for nor possess a Firearms Acquisition Certificate or any other form gun licence.

[ 40 ] In the interest of public safety I issue an order under section 110 of the Criminal Code prohibiting you from possessing weapons for a period of ten years. I also order forfeiture of the firearm and the ammunition seized to the Attorney General of Ontario for disposition as directed by him.

[ 41 ] Mr. Caranci, you should understand that if you breach any of the terms of your conditional sentence, you will be brought back before the Court, with the very good likelihood that you will be required to spend some or all of the balance of your sentence in custody.

P.D. Lauwers J.

RELEASED: June 14, 2012