ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-0050
DATE: 2014-07-09
B E T W E E N:
HER MAJESTY THE QUEEN
Andrew Sadler for the Crown
- and -
TREVOR ANDERSON
Tyler Woods, for the Accused
Accused
SENTENCING SUBMISSIONS: June 5 2014, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
DELIVERED ORALLY Reasons on Sentence
[1] On January 17, 2014, after a two day trial, Trevor Anderson was found guilty of transferring a firearm, knowing he was not authorized to do so contrary to section 99(1) of the Criminal Code.
[2] Mr. Anderson was involved with selling property to strangers he met in front of a pawn shop at the Fort William First Nation. Among the property sold was a Savage 24C rifle shotgun. Based on the evidence at trial I found that Mr. Anderson had been involved in both the offer for sale of the firearm and the transfer of the firearm. I found that he facilitated the transaction by selling other items and assuring the purchaser that the firearm was not stolen. He was present when the firearm was physically transferred to a person who bought it for valuable consideration. I found that Mr. Anderson was both acting to aid and abet the sale of the firearm and that he had the necessary mens rea to indicate he intended to be a party to the transfer.
[3] No violence was involved with the transfer of the firearm and no physical harm came to anyone as a result of the transfer of the firearm. It was turned over to police following the transaction after the buyer got suspicious.
[4] A pre-sentence report which was to have a Gladue component was ordered and was prepared in respect of this matter. Also Mr. Anderson gave a brief amount of evidence at the sentencing hearing directed at the Gladue issue and conditions he experienced in pre-sentence custody.
[5] There is an issue as to whether or not Mr. Anderson is, in fact, of aboriginal background or his life circumstances were such that section 718 of the Criminal Code of Canada, (discussed in the decision of the Supreme Court of Canada in R v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688 and revisited recently by the Supreme Court of Canada’s decision in R v. Ipeelee, [2012] 1 S.C.R. 4330) is engaged in this sentencing. In the presentence report filed, there was a reference to the fact that Mr. Anderson claimed his father was a “Mohawk”. Mr. Anderson says his grandmother was from a reserve in Quebec called “Shaunene”. When I asked counsel if they knew about this reserve, the best counsel could surmise that it was some phonetic reference to the “Haudenosaunee”. I understand Haudenosaunee, is the proper aboriginal name for the First Nation of which the Mohawks were one of the nations that comprised the confederacy. However the pre-sentence report also indicated that Mr. Anderson’s mother denied her husband was an aboriginal. Mr. Anderson testified his father left his mother when he was one years old and indicated she did not really know one way or the other about the background of his father. The pre-sentence report indicates Mr. Anderson referred to his father in a negative light indicating “he never worked a day in his life and was always drunk”.
[6] There was no other evidence whatsoever about Mr. Anderson’s connection to any aboriginal community or how, what limited evidence was given on this subject, this would have had any impact on his moral culpability in this matter. Counsel was asked about the recent decision of the Ontario Court of Appeal in R v. D.B. 2013 ONCA 691, but did not choose to refer to it. In that decision the Court stated at paragraph 13
While an Aboriginal offender need not establish a direct causal link between his circumstances and the offence, the Gladue factors need to be tied in some way to the offender and the offence (R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 83. See also R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688). The rationale for Gladue is that many Aboriginal offenders come from situations of social and economic deprivation with few opportunities for positive development and these circumstances may diminish their moral culpability (R. v. Ipeelee, at para. 73).
[7] Counsel for Mr. Anderson pointed out that one of the Gladue factors was the negative impact that removal from a First Nation home community as the result of the residential school experience or placement in foster care could have on an aboriginal offender. However, I think there is a real issue if Mr. Anderson is actually an aboriginal offender at first instance and certainly there was no evidence whatsoever that he ever was in any way connected to any aboriginal community. There was not sufficient evidence on this hearing for me to make a determination one way or the other. There was nothing in the presentence report that indicated Mr. Anderson had any contact or participation in Aboriginal culture or communities. There was no evidence that any of his relations had experienced the residential schools. Mr. Anderson’s mother denied that his father was aboriginal. Mr. Anderson says she wouldn’t have known this as his father left him when he was one year old. The evidence about any interaction with his father did not indicate any particular emphasis on aboriginal culture or tradition. Also there was nothing in the submissions of counsel or the evidence given by Mr. Anderson on the sentencing hearing that could tie the Gladue factors to him and the offence. In this case, I believe that the Gladue factors are not applicable to Mr. Anderson and I did not give them any weight in coming to a conclusion as to the appropriate sentence.
[8] The pre-sentence report indicates Mr. Anderson is a forty year old man who grew up in the Timmins area. He did not do well in school and his behavior was disruptive it being noted as “being attention seeking, impulsive and he continued to lie”. He does not have an employment history. He has a long standing issue with alcohol abuse. He has not done well when on previous release within the community on conditions.
[9] There were no victim impact statements provided to the Court.
[10] Mr. Anderson was found guilty of transferring a firearm contrary to section 99(1) of the Criminal Code. There was an argument before me as to whether section 99(2) or 99(3) applied in respect of the statutory sentence applicable to this particular crime. Both provisions carry a minimum sentence of 3 years or 1 year respectively. The relevant sections read:
99(2) Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(a) in the case of a first offence, three years; and
(b) in the case of a second or subsequent offence, five years.
99(3) In any other case, a person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment for a term of one year.
[11] The defence submits that section 99(3) is applicable to Mr. Anderson as the offence at issue is an “any other case”. I disagree. Section 99(2) is applicable as the offence at issue involved a firearm, one of the three enumerated things in that section. Section 99(3) deals with the other two items otherwise caught by section 99(1) namely a prohibited weapon or a restricted weapon. The offence to which Mr. Anderson has been found guilty is subject to a minimum penalty of three years in prison for a first offence but not more than a ten year sentence.
[12] The parties agree Mr. Anderson has spent 501 days in pre-sentence custody plus any time following the date of submissions and the date this decision is released
[13] The Crown argues that Mr. Anderson should be sentenced to a period of incarceration of four to five years less presentence custody calculated on a 1:1 basis. The Crown submits Mr. Anderson’s record is lengthy although it is acknowledged that this is his first offence involving a weapon. Crown notes an absence of remorse on behalf of Mr. Anderson.
[14] The defence agrees this is a circumstance that requires a period of incarceration but asks for a sentence of one year based on the section 99(3) argument. The defence also requests that Mr. Anderson be given credit for time served based on the very poor conditions he has experienced while in custody at the Thunder Bay jail. Mr. Anderson has been in segregation for a substantial period of his presentence custody. Despite being in segregation he indicated he was often required to sleep on the floor as 2 other inmates were often housed with him. Mr. Anderson alleges he was assaulted in jail recently, sometime in April, 2014. I observed his black eye when he testified. He testified that he has been advised by a doctor that it is likely he will not regain sight in his right eye. He has suffered two heart attacks and had to have surgery on his eye in Winnipeg. The evidence on the sentencing discloses that the jail officials have made every effort to provide the best medical treatment to Mr. Anderson since the date of the assault.
[15] In this matter, in my view, there a number of mitigating and aggravating factors. This is Mr. Anderson’s first offence involving a weapon. He was found guilty as a party to the offence. There was no violence involved with the transfer of the firearm and it was quickly brought to the attention of police. He is of limited education and has had a difficult time while in presentence custody. Aggravating this situation is Mr. Anderson’s lengthy criminal record.
[16] In this case, I am mindful of the sentencing principles contained in sections 718. I was not provided any authorities by either counsel regarding the range of sentence for this type of offence.
[17] In this matter, I am persuaded that an appropriate sentence is the mandatory minimum sentence of 3 years as required by section 99(2). This is Mr. Anderson’s first offence involving a weapon. He has a lengthy criminal record. There was no violence involved in the transaction at issue or afterwards. I am of the view that the range of sentence requested by the Crown would not be appropriate given all the circumstances of the case.
[18] I am prepared to give Mr. Anderson credit for time served in accordance with section 719(3) and 719(3.1). His time served shall be at the rate of 1:1 up to May 1, 2014. For any time served following that date up to and including the date this judgment is released, credit will be given at the rate of 1 to 1.5. That is to say, for every day served from May 2, 2014 to date it will count as a day and one-half of presentence custody. In my view the circumstances suffered by Mr. Anderson have been sufficiently difficult following his jail house beating as to warrant the increased credit for that time frame. There shall be ancillary orders as per my endorsement.
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: July 9, 2014
COURT FILE NO.: CR-11-0050
DATE: 2014-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
TREVOR ANDERSON
Accused
REASONS ON SENTENCE
Fitzpatrick J.
Released: July 9, 2014
/mls