ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-70000824-0000
DATE: 20130305

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

T.A.P.
Defendant

E. Haydon, for the Crown
T. Ounapuu, for the Defendant

HEARD: January 24, 2013

CROLL J.

DECISION ON SENTENCE

[1] On April 2, 2012, T.A.P. pled guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46, and to being in possession of a firearm knowing that the serial number on it has been altered, defaced or removed, contrary to s. 108(1)(b) of the Criminal Code. These offences occurred on March 28, 2010.

[2] When there is a conviction on indictment under s. 95(1), s. 95(2)(a)(i) of the Criminal Code provides for a mandatory minimum sentence of three years for a first offence. The Crown submits that this is the correct sentence for T.A.P..

[3] The defence submits that the sentence of three years is not appropriate on the facts of this case. It is the defence position that I am bound by the decision in R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25, which held that the mandatory minimum sentence provided for in s. 95(2)(a)(i) is inconsistent with the Canadian Charter of Rights and Freedoms and is of no force and effect. The defence submits that a conditional sentence should be imposed. (The defence did not submit a specific period for the sentence, however pursuant to s. 742.1 of the Criminal Code, conditional sentences are only available for sentences of less than two years.)

[4] Given this background, it has been agreed that I should first determine the appropriate sentence for T.A.P. in the absence of any mandatory minimum. If it is three years or more, I will not consider the constitutionality of s. 95(2)(a)(i). However, if I determine that the appropriate sentence is less than three years, I will consider the impact of the Smickle decision.

Circumstances of the Offence

[5] At around 12:29 a.m. on March 28, 2010, police officers were flagged down in the area of 90 Parma Court in the City of Toronto. They were advised of a violent domestic occurrence in apartment 702, where T.A.P. resided. The officers attended the seventh floor hallway to find T.A.P., upset and aggressive. She had been drinking. T.A.P. advised the officers that her daughter was in the apartment with P.S., and that there were three other children sleeping in the apartment.

[6] The officers entered the apartment and found T.A.P.’s daughter crying in the living room. She told officers that P.S. had threatened her and that he was in the back bedroom with two dogs. The officers called P.S. out of the back bedroom and arrested him.

[7] While outside of the apartment, P.S. advised the arresting officers that there was a gun hidden in a chair in T.A.P.’s bedroom. The officers entered the bedroom and found a silver, pearl-handled snub nosed Smith & Wesson, 38 Special six shot revolver between the cushion and the side of the chair. This firearm has a barrel length of less than 105 mm, making it a prohibited firearm. The gun was loaded with two live .38 rounds in the chamber and the serial number on the gun had been filed off. Neither P.S. nor T.A.P. had a firearms license or authorization to possess a firearm.

Circumstances of the Offender

[8] T.A.P. is 44 years old and has a grade 10 education. She has never held any employment position and is currently supported by Ontario Works.

[9] T.A.P.’s parents separated after two years of marriage. She and a number of her cousins were raised in the Lindsay area by their grandparents. In 1983, at the age of 15, T.A.P. had her first daughter, M.. Soon after, she and M. moved to Toronto to live with T.A.P.’s mother, who had three other children from a subsequent relationship. The pre-sentence report indicates that T.A.P. helped to raise those children. T.A.P. lived with her mother until she was 21 years old. T.A.P.’s father also lived in Toronto and she saw him three times a year. He drank heavily and suffered a brain injury when T.A.P. was a baby, which led to the breakdown of her parents’ marriage.

[10] M. is currently 29 years old. She was attending university, but has put her studies on hold to help her mother. T.A.P. does not know who M.’s father is.

[11] T.A.P. had a second child, a son, in 1993. In 1996, the Children’s Aid Society became involved with the family and the children were taken out of T.A.P.’s custody. The pre-sentence report indicates that the boy’s father took custody of him and that they moved to Hamilton, although it is not clear when this occurred. T.A.P.’s son has now graduated high school and is attending university.

[12] For 14 years, from 1996 to 2010, T.A.P. was in an abusive and volatile domestic relationship with another man. According to the information T.A.P. provided for the pre-sentence report, her relationship with this man revolved around drugs, specifically crack cocaine and drinking. She reported that he would force her to use drugs and that he was physically abusive to her.

[13] T.A.P. became pregnant with this man and had her third child in 1998. The pre-sentence report indicates that their relationship was good for about a year after the child was born, but it then deteriorated and T.A.P. restarted her use of crack cocaine. T.A.P. advised that she left this man in 1999 and went to a shelter with her children. The man was arrested in Amsterdam in 1999 for exporting cocaine and was in custody for 22 months.

[14] T.A.P.’s involvement with this man resumed when he returned to Canada in 2001. At the time, T.A.P. was living in a three bedroom subsidized home. In 2001, the police were called to that home for a domestic violence occurrence and T.A.P.’s children were again removed from her custody by the Children’s Aid Society. Seven months later, T.A.P.’s youngest daughter was returned to her care. By that time, M. was over the age of 16 and allowed to remain in the house.

[15] In 2002, T.A.P. became pregnant with this man for the second time and had a fourth child, a daughter. When this daughter was 4 months old, T.A.P. again became pregnant and in 2003 she had a fifth child, another daughter. According to T.A.P., the last pregnancy occurred because the man had raped her. These girls are now ages 11 and 10, and both have mental health and developmental issues.

[16] The pre-sentence report indicates that T.A.P. stated that she received the gun from a neighbourhood drug dealer with whom she was friendly. The Crown questioned the suggestion made in the pre-sentence report that T.A.P. had the gun for her own protection. T.A.P. acknowledged that she never took any steps to arm herself when she was involved in the abusive relationship. However, she testified that in October 2009 when she acquired the gun from a drug dealer, she was living in a housing area where there had been murders, her neighbours had seen her talking to the police, and she did not feel safe. I accept T.A.P.’s evidence that she was afraid of both her former partner and the drug dealers in her neighbourhood; that she would allow drug dealers to leave things at her home and cook for them in return for drugs; and that she did not ask for the gun, but rather simply accepted possession of it when it was presented to her by one of the men in her neighbourhood.

[17] The pre-sentence report discussed what occurred on the night of the arrest, and this evidence was also explored in cross-examination. T.A.P. stated that she been drinking that night to gain courage to surrender the gun. She showed the gun to a man she was seeing at the time, and this created a big argument between them. Among other things, T.A.P. stated that the man was very angry because he felt that her possession of the gun could have serious repercussions for him. This argument led her to continue her drinking, which, in turn, escalated the fight, and resulted in the police attending her home in response to a neighbour’s complaint. As noted above, after the man was arrested, he told the police about the gun. Although T.A.P. did not name the man in her evidence, the only inference can be that it was P.S., given the agreed facts underlying her plea.

[18] From her arrest on March 28, 2010 until January 2011, T.A.P.’s three younger children were placed in the custody of the Children’s Aid Society, and then in M.’s custody for a period of 5 months. The children have now been returned to T.A.P., although the Children’s Aid Society remains involved with the family.

[19] Overall, T.A.P. has a difficult and tumultuous personal history, rooted in alcohol and drug abuse. While she attributes her alcohol and drug consumption to her previous violent domestic relationship, her use continued after the relationship ended. There were, however, periods of sobriety over the years, mostly around her pregnancies.

Aggravating factors

[20] The obvious and most serious aggravating factor is the presence of a loaded firearm in an apartment in which children were present.

[21] As well, T.A.P. had been drinking, and according to the police, was in an intoxicated state. She was in the midst of a heated argument with the man in apartment.

[22] I also note that T.A.P. possessed the firearm during a period when she was using crack cocaine, and by her own account, she acquired the gun from a drug dealer.

Mitigating factors

[23] There are, as well, mitigating factors. T.A.P. has no prior criminal record. She has demonstrated her remorse by her willingness to plead guilty.

[24] As indicated, T.A.P. has five children.

[25] These children are seen by Dr. Debra Stein, who is the Head of the Latency Assessment Team and Staff Psychiatrist at The Hincks-Dellcrest Center.

[26] In a letter dated November 28, 2012 and filed as an exhibit at the sentencing hearing, Dr. Stein writes as follows:

As I have gotten to know T.A.P. and her children I have been impressed by T.A.P.’s level of commitment to her daughters’ wellbeing. T.A.P. is clearly a caring and loving mother who is trying hard to put her children’s needs first.

[27] T.A.P.’s recent success with maintaining her sobriety and abstaining from drug use are also mitigating factors.

[28] With respect, I am not persuaded by the Crown submission that there is nothing before me to establish rehabilitation.

[29] In addition, T.A.P. commenced the Healing from Abuse Program, Stage 1 Trauma Program offered by the Elizabeth Fry Society of Toronto in February 2011.

[30] Finally, I note that T.A.P. has not violated her bail conditions during her three years of release on bail.

Gladue Report

[31] The sentencing hearing in this matter was adjourned twice to address the issue of Ms. T.A.P.’s Aboriginality. As stated in the Supreme Court of Canada decision of R. v. Ipeelee, 2012 SCC 13, a sentencing judge has a statutory duty to consider the special circumstances of an Aboriginal offender.

[32] On October 23, 2012, Mr. Jonathan Rudin of Aboriginal Legal Services of Toronto advised the court by letter that Jennifer Bolton had interviewed T.A.P. but could not confirm details of Aboriginal ancestry.

[33] Further investigative efforts were made but definitive confirmation could not be obtained.

[37] I accept that T.A.P. has some Aboriginal lineage, given her assertion and the evidence of her cousin.

[41] Overall, I find there are no unique systemic or background factors that have influenced or impacted T.A.P.’s coming before this court and which would influence her sentence.

Range of Sentence

[42] In examining the range of sentence for a s. 95(1) possession of a loaded prohibited firearm offence, Molloy J. in Smickle referred extensively to the decision in Nur.

[43] I agree with the assessment that in a typical case the range of sentence for a youthful first‑time offender would have been between two years less a day and three years.

Range of Sentence for T.A.P.

[48] I have considered the case law and the sentencing principles set out in s. 718 of the Criminal Code.

[50] I accept T.A.P.’s evidence that she possessed the gun in some misguided attempt at self‑protection when presented with it by a drug dealer.

[51] In the particular circumstances of this case, I find the appropriate sentence for T.A.P. to be less than two years.

Impact of Smickle

[52] In Smickle, Molloy J. found that the three year mandatory minimum sentence would be grossly disproportionate and violated section 12 of the Charter.

[56] The Crown asks me to find that the declaration in Smickle is not binding on this court.

[58] In sum, I find no reason to depart from the decision in Smickle.

[59] Accordingly, it is not necessary for me to engage in the analysis as to whether the mandatory minimum sentence in s. 95(2)(a)(i) is unconstitutional.

Conditional Sentence

[60] As indicated, I find that a sentence of less than two years is a fit sentence for T.A.P..

[61] The Crown submits that s. 742.1 of the Criminal Code prohibits the imposition of a conditional sentence.

[65] Accordingly, I find that T.A.P. has been convicted of a serious personal injury offence, and as such, she is not eligible for a conditional sentence.

Sentence for T.A.P.

[73] The sentence for T.A.P. must balance the sentencing principles and accord with the provisions of the Criminal Code.

[76] Given that neither a determinate jail sentence or a suspended sentence with probation are appropriate on the facts of this case, I find that the sentencing objectives will be met by a sentence of 90 days imprisonment, to be served intermittently on weekends, followed by three years of probation, which will include a strong element of community service.

[77] For these reasons, I am satisfied that the sentence of 90 days custody, served intermittently, followed by probation, is the appropriate sentencing option on the facts of this case.

[78] Counsel will be provided an opportunity to make submissions as to when the intermittent sentence should commence and as to the terms of probation, beyond the mandatory terms.

Ancillary Orders

[79] There will also be a mandatory s. 109 Criminal Code weapons prohibition order; an order forfeiting the firearm and ammunition under s. 491(1); and a DNA order under s. 487.051(2).

CROLL J.

Released: March 5, 2013