SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 813/11
DATE: 20130222

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Mark Moorcroft, for the Crown

Crown

• and -

RICHARD VADER

Defendant

Magdalena Wyszomierska, for the Defendant

HEARD: January 4, 2013

REASONS FOR SENTENCE

LAUWERS J.:

[1] For the reasons given on November 1, 2012 found at 2012 ONSC 5418, I convicted Mr. Vader of the following offences committed on October 4, 2011:

a) One count of possession of prohibited or restricted firearm, contrary to s. 95 of the Criminal Code, R.S.C. 1985, c. C-46;

b) Five counts of possession of firearms obtained by crime, contrary to s. 96;

c) Sixteen counts of possession of a firearm while prohibited (8 guns x 2 prohibition Orders), contrary to s. 117.01;

d) Twelve counts of possession of ammunition while prohibited, contrary to s. 117.01;

e) One count of occupation of a motor vehicle knowing of the presence of firearms, contrary to s. 94;

f) One count of careless storage of firearms, contrary to s. 86; and

g) Eight counts of possession firearms knowing that possession was unauthorized, contrary to s. 92.

Based on the principles in R. v. Kienapple 1974 14 (SCC), [1975] 1 S.C.R. 729 convictions were not registered in respect of counts 30-35, which related to occupation of an automobile knowing of the presence of firearms, or counts 37-42, which related to careless storage of firearms.

[2] The matter was put over to January 4, 2013, for the purpose of obtaining a pre-sentence report and hearing sentencing submissions.

The Facts

[3] As the result of a traffic stop, Officer Roughley discovered ammunition in an ammunition box, and three long gun cases. One soft case contained four rifles, another had two and the hard case had one rifle in it. There were no locks or other safety mechanisms engaged on any of the rifles. Later that night, Mr. Vader told Officer Roughley that he had a revolver at his apartment, which the officer retrieved along with more ammunition.

[4] Mr. Vader’s personal circumstances are described in the Pre-Sentence Report. He is 29 years old. He is a high school graduate, but has had no further education. He is identified as having A.D.H.D.

[5] Mr. Vader and his father were partners in a business called J.F. Vader and Sons, which carried out construction contracting. Mr. Vader notes that the longest period of time that he has been unemployed was for a year or so, although this occurred on a few occasions. He advises that he has never been terminated from an employment position. He has received assistance from Ontario Works on three separate occasions when he had no alternative. Before the convictions, Mr. Vader was in a “lull” in his work. I am persuaded by the Pre-Sentence Report that Mr. Vader enjoys the strong support of his parents Cheryl and Jim.

[6] Mr. Vader has had a problem with substance abuse starting with alcohol and progressing to cocaine and prescription drugs. He was on a methadone program to stop taking opiates at the time of his arrest. He has now managed to wean himself off of the methadone. He continues to take medication to address his A.D.H.D. and to assist with his anger management issues.

[7] Mr. Vader was convicted in 2007 of robbery, possession of an offensive weapon, disobeying a lawful order, breach of recognizance, and the use of a stolen credit card, for which he completed 9 months in custody and 18 months on probation. In 2009, he was convicted of assault causing bodily harm, for which he spent 45 days in intermittent custody and 18 months on probation.

[8] The Pre-Sentence Report notes that Mr. Vader “does not appear to recognize the seriousness of his offences, but acknowledges that he has to “pay” for his choices and behaviour.”

[9] The evaluation in the Report is as follows:

Richard Vader is a repeat offender who has prior charges of assaultive behaviour, as well as weapons related offences. He has the positive support of his mother and father, and had been working with his father prior to the offence, though work was slow at the time. The subject has had an extensive history of substance abuse, but by all accounts was not using illicit substances when the current offences occurred. The subject was involved in the Methadone program, but while in custody has been able to wean himself off of this. Based on the information that the subject provided, as well as his past criminal history, concern related to anger management and problem solving skills(sic). The subject has completed both anger management and P.A.R. group. As such at this time there are not any identified areas that need to be addressed further.

Although the subject accepts responsibility for his behaviour with regards to the current offence, he presents as minimizing the seriousness of the charges reporting that he had developed an interest in “target practice”. Of concern is the subject’s disregard of his weapons prohibition, as well as a suspended licence [which] lends question to the subject responding well and comply[ing] with a community disposition.

In light of these factors, community supervision is not being recommended at this time.

The Positions of Crown and Defence

[10] The conviction for possession of a prohibited or restricted firearm carries a minimum sentence of three years under s. 95 of the Criminal Code, and the conviction for five counts of possessing firearms obtained by crime carries a minimum sentence of one year under s. 96. Mr. Vader has been in custody since October 4, 2011, for 16 months and 18 days, and is entitled to credit at a 1:1 ratio.

[11] The Crown seeks a further sentence of six years incarceration. The Crown points out that the cumulative minimum sentences would total eight years; the issue of importance in this sentencing is the extent of concurrency. The Crown proposes that the six years would encompass the conviction for possession of a prohibited weapon, the possession of stolen guns, and the breaches of weapons prohibitions. On the date of sentencing submissions the Crown suggested that all of the other offences should attract 15 months, to be offset by credit for time served.

[12] The defence submits that the conviction for possession of the loaded handgun should carry a sentence of three years, and the two breaches of weapons prohibitions should attract a consecutive period of six months but concurrently together. The mandatory minimum relating to the possession of stolen firearms should be concurrent to everything else, as should the sentences for any of the other rifle offences. In short, the defence submits that the total global sentence should be 3.5 years, with credit for pre-trial custody.

Principles of Sentencing

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

(a) to denounce unlawful conduct;

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

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders; ... and

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

[14] Section 718.1 provides that: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Proportionality requires the court to examine the particular circumstances of the offence as well as of the offender such that, ultimately, the punishment fits the crime.

Mitigating and Aggravating Factors

[15] 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."

[16] I consider the following as mitigating factors. Mr. Vader expressed remorse for his conduct. While he did not plead guilty to the charges, he based his case largely on Charter challenges and made helpful concessions that shortened the proceedings: R. v. Whyte, 2011 ONSC 181, [2000] O.J. No. 98, at para. 28. Mr. Vader is not a youthful offender, but he is not someone on whom the court should give up. He has family support and has the potential to turn his life around. The fact that he weaned himself off methadone during his period of incarceration is worthy of note.

[17] I consider the following as aggravating factors. Mr Vader has a prior criminal record, with one period of incarceration of 9 months followed by 18 months probation for robbery, and another of 45 days intermittent followed by 18 months probation for assault causing bodily harm. He subjected the safety and security of the community and of the police officers to considerable risk by having a loaded pistol in his apartment and an arsenal of unsecured guns and ammunition in his truck. I note in passing that I should not take the breaches of the weapons prohibitions into account as aggravating factors, since I impose a sentence for those breaches: R. v. McCue, 2012 ONCA 773 at para. 22.

Discussion

[18] As Chief Justice Lamer stated in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[19] I note that while the objectives of denunciation and general deterrence are important, with respect to a first penitentiary sentence, the court “ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.” R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.) at para. 36. The totality principle ought to be taken into account: R. v. Andall, [2011] O.J. No. 3523 at para 37. The totality principle is particularly important in the context of consecutive sentences: R. v. Stauffer, 2007 BCCA 7, [2007] B.C.J. No. 6, at para. 26.

[20] The Crown relies on the decision in R. v. Dene, [2010] O.J. No. 501 (C.A.), aff’g [2010] O.J. No. 5192, where the court supported a sentence of eight years for Telfer who was 23 years old, and five and a half years for Dene who was 21 years of age. The Crown acknowledged that the sentences were at the “high end of the range for these offenders and these offences.” The offences were weapons offences, although the offences took place in an “area plagued by drug dealing and handguns.” Telfer’s record included a prior weapons conviction, and he was convicted of possession of cocaine for the purpose of trafficking in conjunction with these offences. Dene had a prior conviction for drug trafficking, and was under a weapons prohibition.

[21] Defence counsel points out that there is some risk in using as precedents sentencing cases where there is a tangential involvement of drugs, which seems to have a confounding effect.

[22] In Whyte, the accused was convicted of six firearms offences including possession of a loaded restricted weapon. Two of the handguns involved were semi-automatic. Whyte was sentenced to six and a half years in prison less four years credit for time served. He was found to be a trafficker in handguns and the aggravating factor was that he had a prior firearm related conviction among others.

[23] At para. 78 of the reasons for decision relating to Mr. Vader’s conviction, I observed that “the scourge that gun crimes represent in our communities is well documented.” I need not repeat the judicial references.

[24] The seriousness of Mr. Vader’s offences must be emphasized. He was driving around the community with a virtual arsenal of unsecured guns in his truck, quite apart from the prohibited loaded pistol he had at his apartment.

[25] The sentencing objectives of denunciation and general deterrence weigh heavily, but so does the principle of specific deterrence, since Mr. Vader was obviously completely unimpressed by the imposition of two separate weapons prohibitions on him. Although he expressed remorse to the court, I do not see that he has truly learned his lesson. At the trial, the evidence of Officer Roughley was that Mr. Vader told him he had the guns because he needed protection and felt threatened. That is not what he told the probation and parole officer who prepared the pre-sentence report; to explain the guns he told her that he was interested in “target practice”. This shift shows that Mr. Vader continues to minimize the seriousness of his criminal activities to others and probably to himself. The time has come to wake Mr. Vader up with a sharp message that his criminal activities are intolerable in this community and that he needs to take the fork in the road that leads away from life as a criminal.

[26] In determining the relationship between consecutive and concurrent sentences for the purpose of this sentencing, I take a similar approach to the Court of Appeal in McCue and the decision of Stinson J.in R. v. Williams [2007] O.J. No. 1354.

[27] Taking the charges individually, I find that the appropriate range of sentence in relation to possession of a prohibited weapon is three to four years, which I fix at 3.5 years in recognition of the mitigating factors. I find that the appropriate range of sentence in relation to the five counts of possession of firearms obtained by crime is one to two years, which I fix at 1.5 years, also in recognition of the mitigating factors, each count to served concurrently with each other but consecutively to the sentence relating to the possession of the prohibited firearm. I find that the appropriate sentence for the 16 counts of possession of a firearm and the 12 counts of possession of ammunition while prohibited is in total two sentences of six months to be served concurrently with each other, but consecutively to the first two sentences. I add a sentence of one year each for the conviction for the occupation of a motor vehicle knowing of the presence of firearms, and for the careless storage of firearms. These will be served concurrently with the other sentences. Based on the principle in Kineapple, I decline to sentence in relation to the eight counts of possession of firearms knowing that possession was unauthorized not because the conviction was unwarranted, but because the offence elements are already accounted for in the other sentences.

[28] To recap, I have determined that Mr. Vader should receive consecutive sentences of 3.5 years, 1.5 years and six months for a global sentence of 5.5 years. Bearing in mind the principle of totality, this sentence seems to me to be an appropriate and fit sentence for the serious offences committed by Mr. Vader. He is entitled to 16 months and 18 days credit for pre-sentence custody.

[29] In light of this sentence, which exceeds the mandatory minimums prescribed by the Criminal Code, there is no need for me to rule on the issue raised by the defence on the applicability and binding nature, if any, of the decision of Molloy J. in R. v. Smickle, 2012 ONSC 602, [2012] O.J. No. 612 at paras. 77-78.

Final Disposition

[30] Mr. Vader, would you please stand.

[31] In respect of the conviction for possession of prohibited or restricted firearm, I sentence you to a term of imprisonment of 3.5 years.

[32] In respect of the conviction for five counts of possession of firearms obtained by crime, I sentence you to a term of imprisonment of 1.5 years for each conviction to be served concurrently with each other.

[33] In respect of the conviction for 16 counts of possession of a firearm and for 12 counts of possession of ammunition while prohibited, I sentence you to a term of imprisonment of six months for each conviction to be served concurrently with each other.

[34] In respect of the conviction for occupying a motor vehicle knowing of the presence of firearms, I sentence you to a term of imprisonment of one year.

[35] In respect of the conviction for careless storage of firearms, I sentence you to a term of imprisonment of one year.

[36] Your sentences on the first three convictions mentioned will be consecutive, and the sentences on the remaining counts will be concurrent.

[37] On a global basis, I have imposed on you a sentence of 66 months, which, after giving you credit of 16 months and 18 days for pre-sentence custody; I round down to 49 months remaining to served.

[38] In addition, I impose a mandatory weapons prohibition order pursuant to section 109 of the Criminal Code for life. There will an order directing the forfeiture of the firearms and ammunition that were seized by the police without prejudice to the rights of the rifle owners to retrieve these items.

[39] I also make a DNA order pursuant to section 487.051(1) authorizing the taking of a DNA sample.

Justice P.D. Lauwers

Released: February 22, 2013