CITATION: R. v. Ellis, 2013 ONSC 3092
COURT FILE NO.: CR 66/13 and 67/13
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
WINSTON ELLIS
COUNSEL: Ed Stimec, for the Crown Leo Adler, for the Accused
HEARD: March 23 and May 21, 2013
K.L. Campbell J.:
Reasons for Sentence
A. Introduction
[1] The accused, Winston Ellis, has been found guilty of four firearm-related offences, namely: (1) possession of a .25 calibre semi-automatic firearm, without being the holder of a licence under which he may lawfully possess it, contrary to s. 91(1) of the Criminal Code, R.S.C. 1985, chap. C-46; (2) being the occupant of a motor vehicle in which he knew that there was a firearm, and for which no occupant of the vehicle was the holder of a permit under which he may lawfully possess the firearm in the vehicle, contrary to s. 94(1) of the Criminal Code; (3) the possession a loaded prohibited firearm while not the holder of an authorization, licence or registration certificate under which he may lawfully possess the firearm, contrary to s. 95(1) of the Criminal Code; and (4) possession of a firearm while prohibited by reason of a court order, contrary to s. 117.01(3)(a) of the Criminal Code. All four of these criminal offences took place on May 24, 2010. The accused now appears for sentencing.
B. The Nature of the Criminal Offences
[2] In the early morning hours of May 24, 2010, an officer with the Toronto Police Service witnessed two cars, apparently racing, coming toward his marked police cruiser on Jane Street near Baby Point Road in the city of Toronto. As these speeding vehicles veered onto a residential side street, the officer followed them. When they completed a circular loop through the residential area, the two vehicles drove off in opposite directions. The police officer followed the 2005 Acura that was being driven by the accused. The Acura accelerated quickly away from the police cruiser. After making a series of hard right turns and finding himself on a dead-end street with no means of escape, the accused abandoned his vehicle in a random driveway and walked off into the green space behind the backyards of these properties.
[3] Minutes later, as the police officer continued his investigation of the Acura, he saw the accused and his friend walking past the end of the dead-end street and looking back toward the Acura and the police cruiser. Shortly thereafter, police officers who were summoned as back-up stopped and detained the accused and his friend on the nearby street for investigation. A brief pat-down search for reasons of officer safety revealed that the accused had the keys to the abandoned Acura in his pocket. Further investigation revealed that the accused had a number of outstanding warrants for his arrest in relation to offences allegedly committed in the Windsor area. The accused was ultimately arrested for careless driving and pursuant to the outstanding arrest warrants.
[4] When the accused was walked back to the Acura, the police searched the interior of the car using the keys seized from the accused. The police quickly discovered a hidden compartment under the faux wood panel that surrounded the manual gear shift lever. The panel was not sitting flush and it opened when the police officer pushed on it. In the hollow area under this panel, the officer found a fully loaded .25 calibre semi-automatic firearm.
[5] At the time, the accused was subject to a weapons prohibition order that had been made by Mr. Justice D.T. Hogg of the Ontario Court of Justice on November 26, 2002, pursuant to s. 109 of the Criminal Code, which prohibited the accused from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life.
C. The Personal Circumstances of the Accused
[6] The accused was born on October 3, 1980. He is now 32 years old. He has the equivalent of a grade 12 education. He is married with three children. Prior to his arrest on these charges the accused worked part-time as a delivery/pickup driver for a computer repair company, seasonally for a tree removal business, and periodically for his uncle in the upholstery business.
[7] The accused has one set of previous criminal convictions on his record. More particularly, on November 26, 2002 the accused was convicted of: (1) possession of a loaded prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code; (2) possession of a firearm knowing that its serial number had been altered contrary to s. 108(1)(b) of the Criminal Code; (3) possession of a weapon for a purpose dangerous to the public peace contrary to s. 88(1) of the Criminal Code; (4) possession of a “Schedule I” substance contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19; and (5) failing to attend court contrary to s. 145(2) of the Criminal Code. The accused pled guilty to these earlier offences. After serving more than 7½ months of pre-trial custody, the accused was sentenced to five months imprisonment on each charge (concurrent), and a three year term of probation. An order was also made under s. 109 of the Criminal Code prohibiting the accused from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for the rest of his life.
[8] Following his arrest on his present charges on May 24, 2010, the accused remained in custody for 87 days, until he was released on August 19, 2010. Subsequently, on February 7, 2013, following the jury’s verdict finding the accused guilty on most of the present charges, the accused’s judicial interim release order was revoked. See: R. v. Ellis, 2013 ONSC 908. Since that time, the accused has spent another 112 days in custody. Accordingly, the accused has now spent a total of 199 days, or nearly six months and three weeks, in pre-sentence custody.
[9] For the nearly 2½ year time period between August 19, 2010 and February 7, 2013, the accused was subject to quite restrictive judicial interim release orders. The first such order required the accused to live with his two sureties (not his wife and children), and remain under “house arrest,” in that he was not permitted to leave the residence unless he was in the company of one of his sureties. That order was relaxed on July 19, 2011, at the conclusion of the preliminary inquiry. This varied release order continued to require the accused to live with his two sureties, and maintained the “house arrest” condition of the original order, but permitted the accused to leave the residence of his sureties for employment purposes, or to attend meetings with counsel, medical appointments or court appearances.
[10] In September of 2010 and May of 2011 the accused registered for courses in fire alarms and electricity, respectively, at Seneca College, but he has yet to undertake or complete either of these courses. His judicial interim release conditions did not permit the accused to attend these courses. The accused hopes to eventually become licenced to work in the installation, service and repair of fire detection and prevention devices for both commercial and residential properties.
[11] The accused is fortunate in that his family remains very supportive of him notwithstanding his involvement in these criminal activities. Indeed, many of them prepared thoughtful letters attesting to the good qualities they have seen in the accused’s character. In these letters the accused is described as a good husband, an engaged, encouraging and responsible father, and an attentive caregiver for his elderly parents who have ongoing health problems. The view is also expressed in these letters that, since his release from jail on his prior charges and the birth of his youngest child, the accused has made some “real positive changes in his life” including “letting go of some bad habits and some not so good friends.” The accused is also described as someone involved in his church, and one who is kind and caring toward others. The accused has personally expressed his own regret and remorse for his actions. He appears to realize how stressful these proceedings have been for his family.
D. The Rule Against Multiple Convictions
[12] The accused contends that he cannot be convicted of all of the crimes of which he has been found guilty given the rule against multiple convictions for the same crimes. Essentially, this rule prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same. In short, the rule prevents multiple convictions where there is both a factual and legal nexus amongst the various offences. In such circumstances, the accused should only be convicted of the most serious of the offences, and the findings of guilt in relation to the other similar offences should be stayed. See: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3; R. v. K.(R.) (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont.C.A.) at paras. 27-56; R. v. Crevier, 2013 ONSC 2630, at paras. 37-46; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf, 2nd ed.), vol. 2, at § 16:6000.
[13] I agree that this rule has application in the circumstances of the present case. More particularly, in my view the application of this rule prevents the accused from being convicted of the offence of the possession of a firearm without being the holder of a licence under which he may lawfully possess it, contrary to s. 91(1)(a) of the Criminal Code. The very similar offence created by s. 95(1) of the Code arose from the same factual transaction, and is clearly the more serious offence, as indicated by its mandatory minimum sentence and its greater maximum sentence. The jury’s finding of guilt in relation to the s. 91(1) charge, accordingly, will be stayed. During his sentencing submissions, the Crown effectively conceded this point. See: R. v. Naples, 2009 BCCA 141, at para. 2-4; R. v. Vidal, 2009 BCSC 1095, [2009] B.C.J. No. 1602 (S.C.) at paras.1 and 10; R. v. Duhamel, 2013 ONSC 1340, at para. 12 and 52.
[14] The accused will, however, be convicted of all of the other charges of which he has been found guilty. In my view, the other offences are all sufficiently different, in terms of their respective legal components, that the rule against multiple convictions for the same delict has no further application.
E. The Applicable Mandatory Minimum Sentence
[15] Having been convicted of the offence of possession a loaded prohibited firearm while not the holder of an authorization, licence or registration certificate under which he may lawfully possess the firearm, the accused is subject to a mandatory minimum term of imprisonment of five years pursuant to s. 95(2)(a)(ii) of the Criminal Code, as this is the “second” such offence committed by the accused. The accused does not contend otherwise.[^1] Accordingly, this is the statutory starting point for the sentence that must be imposed upon the accused.
F. The Positions of the Parties
[16] The parties have advanced widely divergent sentencing results.
[17] The accused argues that, notwithstanding the applicable mandatory statutory minimum punishment prescribed by Parliament, the appropriate global sentence that should be applicable in relation to his firearms offences is only three years imprisonment and, perhaps, an additional three (or four) months imprisonment for the offence of breaching his weapons prohibition order.[^2] The accused also contends, however, that he should be given a total of approximately 19 months credit in relation to the pre-sentence custody he has already served and his strict judicial interim release conditions. Accordingly, the accused argues that, after being given this credit, he should only be sentenced to approximately another 20 months imprisonment.
[18] The Crown, on the other hand, argues that the appropriate range of sentence for the firearms offences is seven years imprisonment, and with a consecutive one year term of imprisonment for the breach of the weapons prohibition order offence, the accused should receive a total sentence of eight years imprisonment. Further, the Crown argues that the accused should receive no credit whatsoever for the period of time for which the accused was on judicial interim release, and no enhanced credit for the time spent in pre-sentence custody by the accused. The Crown argues, in effect, that once the accused is given the straight “one-for-one” credit for his 199 days of pre-sentence custody, the accused should now receive a sentence of approximately 7½ years imprisonment.
[19] For the reasons that follow, I accept neither of these extreme sentencing positions.
G. The Governing Sentencing Principles
[20] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[21] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[22] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
H. The Aggravating and Mitigating Circumstances of this Case
[23] As outlined by the Crown in his submissions, the aggravating circumstances of this case include all of the following considerations:
• The accused is not a youthful first offender, but rather is a mature 32 year old man with a criminal record for the commission of the same kinds of firearms offences.
• The accused still has outstanding bench warrants in relation to offences from the Windsor area that he has not yet addressed.
• The semi-automatic firearm in the possession of the accused was fully loaded and ready to fire in that the magazine was full of bullets and there was an additional bullet already loaded into the firing chamber.
• The accused possessed the loaded firearm while driving around on public streets in the City of Toronto in a motor vehicle, thereby creating a very dangerous situation for members of the public.
• The accused stored his loaded semi-automatic firearm in a secret compartment in his vehicle that permitted him to both conceal the firearm and yet still be able to quickly gain access to the firearm whenever necessary.
• The accused offered no evidence or explanation as to why he had this loaded firearm in his possession.
[24] As outlined by defence counsel in his submissions, the mitigating circumstances of this case include all of the following considerations:
• There is no evidence or suggestion that the accused ever shot the firearm, used it as a weapon or threat against any person, or ever removed it from its storage location in the motor vehicle.
• The firearm found in the possession of the accused has not been traced back to the commission of any earlier criminal offences.
• There is no evidence that the accused was involved in the traffic or sale of any illicit drugs, and had the firearm for those purposes. In short, this is only a case of “simple possession” of a loaded fiream without any of the additional aggravating circumstances often seen in these types of cases.
• The manner in which the accused stored the loaded firearm in the secret compartment of his motor vehicle reduced its potential danger to the public, as it was not a location where it was apt to be accidentally discovered by anyone else having access to the vehicle.
• Given the personal circumstances of the accused, his family support and family obligations, and his years of positive behavior since his earlier firearms offences, the accused continues to have excellent prospects of rehabilitation.
• The accused has had these charges pending against him for just over three years, and has either been in custody or under strict bail conditions for that entire period of time.
I. The Sentence Merited by the Offences and the Offender
1. The Firearms Offence
[25] Taking into account all of the circumstances of this case, in my view, the firearms offences committed by the accused demand the imposition of a penitentiary sentence of six years imprisonment.
[26] The unlawful possession of loaded firearms in the Toronto region is a very serious problem, and periodically results in tragic consequences. Accordingly, such offences must be met with custodial sentences that are proportional to the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes and adequately protect the public. See: R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont.C.A.) at para. 78; R. v. Brown, 2010 ONCA 745, at para. 14; R. v. Morris, 2011 ONSC 5206; R. v. Chambers, 2012 ONSC 817, at para. 15-17; R. v. Scarlett, 2013 ONSC 562, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, at paras. 22, 24. Penitentiary terms of imprisonment beyond the mandatory three year statutory minimum are now not uncommon even for youthful first offenders. See, for example: R. v. Velez-Lau, 2011 ONSC 4805, at paras. 9, 20-25; R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-42, 49-52, 70, 145-149; R. v. Harutyunyan, 2012 ONSC 58, at paras. 9-10, 14-20; Affirmed: 2012 ONCA 637.
[27] The accused in the present case is not, however, a youthful first offender. He is a mature recidivist. As I have indicated, in late 2002 the accused was convicted of a number of crimes in connection with his unlawful possession of a loaded prohibited or restricted firearm with an altered serial number. After spending more than 7½ months in pre-trial custody, he received a sentence of five months imprisonment and a three year term of probation. Given that the accused would, at the time, likely have been given the prevailing “two-for-one” credit for his pre-trial custody, this would have been an effective sentence of approximately 20 months imprisonment. Unfortunately, neither that sentence nor the accompanying lifetime weapons prohibition order imposed at that time deterred him from the repetition of this same criminal activity.
[28] Parliament has decreed that when these types of inherently dangerous firearms offences are committed by repeat offenders, the mandatory minimum term of imprisonment is five years imprisonment. When those inclined to possess loaded illegal firearms are not discouraged from such perilous criminal activity by shorter terms of imprisonment, the striking need for a more effective measure of specific deterrence requires the imposition of a significantly longer term of incarceration in order to adequately protect the public. See: R. v. Dene and Telfer, [2010] O.J. No. 5192 (S.C.J.) at paras. 6-16, 19, 34-38; Affirmed: 2010 ONCA 796, at paras. 8-9; R. v. S.(I.) and M.(M.), 2011 ONSC 3303, [2011] O.J. No. 3052.
[29] Accordingly, in my view, before taking into account any credits to which the accused may be entitled by virtue of the various restrictions on his pre-sentence liberty, the proper application of the applicable principles of sentencing, in all of the circumstances of this case, would result in a six year term of imprisonment for the accused. After all, the accused, a repeat firearms offender, was driving around City of Toronto, with a fully loaded, ready-to-fire, semi-automatic firearm stored secretly in a compartment of his motor vehicle. The fact that the accused could quickly access this loaded firearm from his vehicle, at a moments notice, created a very dangerous situation for the public.
2. Breach of the Weapons Prohibition Order – Consecutive Sentence
[30] As I have mentioned, at the time of his most recent firearms offences, the accused was subject to a court order, made at the time of his last firearms offences, which strictly prohibited him from the possession of such a weapon. The weight of authority strongly suggests that, as a general rule, in such circumstances a consecutive sentence ought to be imposed for the breach of the weapons prohibition order. See: R. v. Manning, [2007] O.J. No. 1205 (S.C.J.) at paras. 42-43; R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) at paras. 60-65; R. v. W.C.A., [2010] O.J. No. 2677 at paras. 49-51; R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707, at para. 15; R. v. Sadat and Mensah, 2011 ONSC 3303, at paras. 41-48; R. v. Alexander, 2012 ONSC 6117, at paras. 39-43, 48-50. I agree with this principled perspective. In the absence of a consecutive sentence, the accused effectively receives no greater punishment as a result of his clear violation of a previous court order. The intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.
[31] In all of the circumstances of this case, and especially taking into account the important issue of the totality of the sentence, in my view, the accused ought to be sentenced to an additional one year term of imprisonment for his breach of the 2002 court order absolutely prohibiting him for the possession of any firearms or other weapons for life.
3. Conclusion – The Global Appropriate Sentence (Before Credits)
[32] Accordingly, before considering the issue of the appropriate credit the accused should be given for his pre-sentence custody and his strict pre-trial bail conditions, in my opinion the total sentence that the accused should receive for his current offences is seven years imprisonment – six years imprisonment for his firearms offences (concurrent) and one year imprisonment (consecutive) for his breach of the earlier weapons prohibition order.
J. Credit for Pre-Sentence Custody and Restrictive Bail Conditions
1. Credit for Pre-Sentence Custody
[33] As I have indicated, the accused has already served a total of 199 days of pre-sentence custody. While s. 719(3) of the Criminal Code suggests that the credit for such pre-sentence custody should generally be limited to “one day for each day spent in custody,” s. 719(3.1) of the Code states that, where “the circumstances justify it,” this credit may be increased to a maximum of “one and one-half days for each day spent in custody.”
[34] Importantly, in R. v. Summers, 2013 ONCA 147, at paras. 8, 119, the Court of Appeal construed the practical application of these provisions, holding that a sentencing judge possesses the discretion under s. 719(3.1) of the Code to give enhanced credit to an accused for pre-sentence custody in order to account for the offender’s loss of remission and parole eligibility while in pre-sentence remand custody, where it is necessary to achieve a fair and just sanction. See also: R. v. Carvery, 2012 NSCA 107; R. v. Stonefish, 2012 MBCA 116, at paras. 81-85; R. v. Peterkin, at paras. 27-35.
[35] The accused argues that he should be given the maximum credit of 1.5 days for each day of his 199 days in custody. The Crown argues, however, that the accused should not receive any enhanced credit, and that the accused should only be given one day of credit for each day of his pre-sentence custody.
[36] I agree with the position advanced on behalf of the accused. In my view, the accused is entitled to the enhanced credit of 1.5 days for every day he has spent in pre-sentence custody. First, according to the submissions of Mr. Adler, which were not contradicted by the Crown, the accused has been a “model prisoner” while in pre-sentence custody and, accordingly, would likely have earned remission or positive prospects for parole. Second, the accused has spent his pre-sentence custody in the Toronto Don Jail in less than ideal conditions of detention.
[37] Giving the accused the maximum enhanced credit possible under s. 719(3.1) of the Code means that the accused receives a total credit of 298.5 days or nearly 10 months of imprisonment.
2. Credit for Stringent Bail Conditions (House Arrest)
[38] As I have already indicated, for close to 2½ years the accused was governed by relatively restrictive bail conditions. He was under a form of “house arrest” in the residence of his sureties for the entire time. Most significantly, for the 11 month period between August 19, 2010 and July 19, 2011, the accused was not permitted to leave the residence unless he was in the company of one of his two sureties. For the remaining time, between July 19, 2011 and February 7, 2013, the accused was more liberally permitted to leave the residence of his sureties for employment purposes, or to attend meetings with counsel, medical appointments or court appearances.
[39] The accused argues that this “house arrest” condition, especially as originally framed, was very onerous on him because it not only effectively confined the accused indoors, but it also forced the accused to live with his two sureties, away from his wife and family. The accused argued that he should be given credit for approximately nine months of imprisonment as a result of these restrictive judicial interim release conditions. The Crown argued that the accused was not entitled to any credit.
[40] In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions” including time spent effectively under “house arrest,” this mitigating circumstance must be taken into account and given some weight in the sentencing of the accused. Indeed, Rosenberg J.A., delivering the judgment of the court, held that the 18 months the accused was on bail and subject to a “house arrest” condition that required him to remain in his residence “except in the company of his surety,” the accused was entitled to credit for five months imprisonment.
[41] In my view, applying the decision in R. v. Downes in the circumstances of the present case dictates that the accused is entitled to some credit for his “house arrest” bail condition, especially the original more restrictive version of that condition, requiring him to remain inside the residence of his sureties unless in the company of one of those sureties. The real issue is precisely how much credit the accused should receive. As Rosenberg J.A. mentioned in R. v. Downes, at para. 37, the amount of credit is a discretionary matter, and there is no “formula” to apply. Rather, the amount of the credit given to an accused will depend upon consideration of a number of factors including the duration of the time spent on bail under house arrest, the stringency of the bail conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment and activity.
[42] In the present case, the accused was subject to a “house arrest” bail condition for 2½ years. This condition significantly interfered with his ongoing relationship with his wife and children as it required the accused to live elsewhere with his sureties. Indeed, as the accused indicated in the letter he prepared for purposes of sentencing, his children were abruptly “uprooted” from their neighbourhood, friends and school, and “relocated” while he was on bail so that they could still live near each other. In addition, while this “house arrest” condition was significantly relaxed at the end of the preliminary inquiry, for the 11 months prior to that time, it was very restrictive, only permitting the accused to be outside the residence when in the company of one of his sureties. However, like R. v. Downes, there was little information provided at the sentencing hearing as to how the accused spent his time while on bail and under house arrest. There are very few details as to the actual impact that the “house arrest” condition had on the accused on a daily basis.
[43] In any event, in all of the circumstances of this case, in my view it is fair to credit the accused with six months imprisonment as a result of the restrictive conditions of his judicial interim release orders.
3. Conclusion Regarding Credits
[44] In summary, I have concluded that, pursuant to s. 719(3.1) of the Code and the decision in R. v. Summers, the accused is entitled to credit for nearly 10 months imprisonment for the 199 days he has spent in pre-sentence custody in the Don Jail. I have also concluded that, pursuant to the decision in R. v. Downes, the accused is entitled to credit for an additional six months imprisonment for the 2½ years the accused has spent on bail and subject to restrictive conditions on his liberty, including his house arrest condition. Adding these two credits together results in a total credit to the accused of 16 months imprisonment. The sentence that I would otherwise have imposed upon the accused will be reduced by this total credit.
K. The Sentence Imposed Upon the Accused
[45] I have concluded that, having regard to all of the circumstances of the present case, a fit sentence in this case would total seven years of imprisonment. I have also concluded that in light of the various pre-sentence restrictions imposed upon the liberty of the accused, he should receive a credit of 16 months toward that sentence. According to my calculations, once the accused is given that credit, the sentence that he should now receive totals five years and eight months imprisonment.
[46] Even after the accused has been given credit for the pre-sentence restrictions on his liberty, this five year and eight month sentence remains a significant penitentiary term of imprisonment. It is also a significant “jump” from the last term of imprisonment served by the accused. However, in my view given the gravity of these offences, the need to denounce and deter these kinds of dangerous crimes, and the status of the accused as a repeat firearms offender, this is a fit, fair and appropriate sentence in all of the circumstances. The accused is still only 32 years old and he continues to enjoy the caring support of his family. He still has healthy, positive prospects towards rehabilitation. He can still become a valuable and contributing member of society, and the much better role model for his children that he claims he wants to become. In my opinion, the totality of this sentence is not such as to dash those optimistic hopes for the future. See: R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) at paras. 8-12, 25-29, 60-65, 71-79.
[47] This sentence is significantly less than the sentence sought by the Crown. With respect, however, in my view the Crowns argument failed to give due and effective consideration to the potential rehabilitation of the accused, and refused to properly and fairly credit the accused for the pre-sentence restrictions that had been placed on his liberty.
[48] This sentence is also significantly greater than the sentence sought by the accused. With respect to defence counsel, in my view his argument failed to properly acknowledge the sheer gravity of the firearms offences committed by the accused, the need to denounce and deter others from such conduct in order to sufficiently protect the public, and the clear need to send a message to the accused personally, as a repeat firearms offender, that such inherently dangerous criminal activity will not be lightly tolerated by the courts. The accused must recognize that his interest in the illegal possession of loaded firearms must cease.
[49] To give effect to this total sentence, I now hereby sentence the accused to four years and eight months on each of the two firearms offences of which the accused has been convicted. Those sentences will run concurrently. I also sentence the accused to one additional year (consecutive) for the offence of breaching the lifetime weapons prohibition order. That totals five years and eight months imprisonment.
L. Ancillary Sentencing Orders
[50] In addition, in my view the following three ancillary sentencing orders are appropriate in the circumstances of this case.
[51] First, pursuant to s. 491(1) of the Criminal Code, I order that the firearm and ammunition that has been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.
[52] Second, pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.
[53] Third, pursuant to s. 487.051(3) of the Criminal Code, I make an order in Form 5.04, to have samples of bodily substances taken from the accused for purposes of forensic DNA analysis. The accused has committed a “secondary designated offence” and, in all of the circumstances, I am satisfied that it is in the best interests of the administration of justice that such an order be made, having regard to the various statutory factors outlined in that provision. See: R. v. Hendry (2001), 2001 21168 (ON CA), 161 C.C.C. (3d) 275 (Ont.C.A.) at paras. 17-25.
M. Conclusion
[54] In the result, the accused is sentenced to a total of five years and eight months imprisonment. The accused is also subject to all of the ancillary sentencing orders that I have issued. I will endorse the indictments and the warrant of committal accordingly.
Kenneth L. Campbell J.
Released: May 29, 2013
CITATION: R. v. Ellis, 2013 ONSC 3092
COURT FILE NO.: CR 66/13 and 67/13
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
WINSTON ELLIS
REASONS FOR SENTENCE
K.L. Campbell J.
Released: May 29, 2013
[^1]: According to s. 84(5) of the Criminal Code, for purposes of determining whether the accused has committed a second or subsequent offence, the earlier offence shall not be taken into account if 10 years have elapsed between convictions, “not taking into account any time in custody.” While there is more than a 10 year period of time between firearms convictions in this case, once time the accused has spent in custody between those dates is removed from the calculation, the intervening time period is less than 10 years. Thus, the concession by the accused that this is his “second” offence for purposes of s. 95(2)(ii) of the Criminal Code.
[^2]: The accused has formally launched a constitutional attack upon the applicable mandatory minimum term of imprisonment that would otherwise be applicable in his case (ie. five years imprisonment, given his status as a repeat firearms offender). The accused has conceded, however, that based upon the current state of the authorities, and pending the outcome of the reserved Court of Appeal decision on this issue, I need only consider that issue under s. 12 of the Charter of Rights if I would have imposed a sentence less than five years had it not been for the mandatory provisions of the Criminal Code. As I have concluded that I would not impose such a lesser sentence of imprisonment, there is no need to further consider this constitutional issue.