ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-730/12

DATE: 20140717

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

TOM LE

Cara Sweeny, for the Crown

Laurie A. Galway, for the Accused

HEARD: June 25, 2014

K.L. Campbell J.:

Reasons for Sentence

A. Overview

[1] On the night of May 25, 2012, the accused, Tom Le, was arrested in possession of a fully-loaded restricted firearm, namely, a .45 calibre semi-automatic Ruger pistol, and 13 grams of crack cocaine. At the time, there were valid court orders in effect prohibiting him from the possession of any firearm. He was also on probation.

[2] The accused was charged with ten criminal offences, namely: (1) possession of a firearm without holding a licence; (2) possession of a firearm knowing he was not the holder of a licence; (3) possession of a loaded restricted firearm without having an authorization, licence, or registration certificate; (4) careless storage of ammunition; (5) carrying a firearm in a careless manner; (6) two counts of breaching previous court orders prohibiting him from possessing a firearm; (7) possession of cocaine for the purpose of trafficking; (8) possession of cocaine; and (9) possession of the proceeds of crime (Canadian currency) not exceeding $5,000. The accused pled not guilty to all of these alleged offences.

[3] The accused challenged the admissibility of the firearm and the drugs, arguing that they had been obtained by the police in violation of his rights under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms, and ought to be excluded under s. 24(2) of the Charter. In reasons released on April 1, 2014, I dismissed this application by the accused, and found that the evidence was admissible. See: R. v. Le, 2014 ONSC 2033, [2014] O.J. No. 1515. The parties agreed that, if admissible, this evidence established the guilt of the accused beyond a reasonable doubt with respect to the firearms and drug-related offences.

[4] Subsequently, the Crown established that the accused, by his possession of the firearm, breached two previous court orders which expressly prohibited him from possessing a firearm. I am also satisfied beyond a reasonable doubt that the accused, who was arrested with $650 of drug money in his pocket, was in possession of the proceeds of crime under $5,000. Accordingly, the accused is guilty of all ten of the offences alleged in the indictment.

[5] To date, the accused has served close to two years and two months (783 days to be precise) in pre-sentence custody. There is no issue between the parties that the accused should be given enhanced credit for this period of pre-sentence detention, as permitted by s. 719(3.1) of the Criminal Code. I agree. This result is required by the application of the Supreme Court of Canada decision in R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80, affirming: 2013 ONCA 147, 114 O.R. (3d) 641, in order to fairly compensate the accused for his lost eligibility for early release and the relative harshness of the conditions of his pre-sentence detention. Giving the accused the maximum enhanced credit legally available means that the accused receives a total credit for having already served the equivalent of three years, two months and 20 days. I give him this credit.

[6] The Crown contends that the accused should receive a global sentence of seven years imprisonment. More specifically, the Crown argues that, before the accused is given any credit for his pre-sentence custody, the accused should receive a five year sentence of imprisonment for his firearms offence, a one year term of imprisonment (consecutive) for his drug offence, and a further one year term of imprisonment (consecutive) for breaching the previous court orders prohibiting him from possessing a firearm. This would result, once the accused is given the agreed credit for his pre-sentence custody, in a sentence of three years, nine months and ten days.

[7] Defence counsel contends that the accused should receive a global sentence of between three and four-and-a-half years imprisonment. More specifically, defence counsel argues that, before the accused is given any credit for his pre-sentence custody, he should receive a sentence of between two and three years imprisonment for the firearms offence, a sentence of between six and twelve months imprisonment (consecutive) for breaching the previous court orders prohibiting him from possessing a firearm, and a sentence of six months imprisonment (consecutive) for the drug offence. This would result, once the accused is given the agreed credit for his pre-sentence custody, in a sentence of no more than one year, three months and 10 days, even if the accused received a sentence at the very upper end of that proposed range. Defence counsel accurately observed that, if the accused was now sentenced to a term of imprisonment of two years or less, a term of probation could also be imposed upon the accused, which would extend the period of supervisory control over the accused for potentially an additional three years.

B. The Facts of the Firearm and Drug Offences

[8] On the evening of May 25, 2012, the three Toronto Police Service (TPS) officers were directed by security guards working in the Atkinson Housing Co-operative to a particular townhouse backyard. When the officers attended at that location, they found five young males talking in the backyard area. The officers entered the backyard through the open gateway.

[9] While the police were talking to some of the young men, the accused began acting nervously and started “blading” his body in order to conceal from the police the bag on his hip area – the bag that contained the fully-loaded semi-automatic firearm. Shortly thereafter, when the accused was asked about the contents of the bag, he fled.

[10] The police gave chase and eventually tackled the accused to the ground. After a short but frantic struggle, during which the accused reached for his bag, the accused was subdued and arrested. The gun had nine rounds in the magazine and one in the chamber and, as the firearm had no “safety” mechanism, it was ready to fire. The accused needed only to pull the gun out of the bag and pull the trigger.

[11] Later, at the police station, when he was being further searched, the accused pulled a bag containing 13 grams of crack cocaine out of the crotch area of his pants, and provided it to the police. The accused was also found in possession of two cell phones, which he admitted he used in his drug trafficking exploits.

[12] In his trial testimony, the accused admitted that he had purchased the firearm a couple of months earlier, for his own protection, for approximately $2,000. The accused also admitted that he had purchased the 13 grams of crack cocaine for approximately $700, and it was not for his personal use, but rather was for purposes of sale to others. The accused also admitted that the $650 in cash in his pocket was from a drug sale he had made the previous day.

C. The Personal Circumstances of the Accused

[13] The accused is now close to 23 years old. At the time of the offences he was just 20 years of age. Despite his young age, the accused has already amassed a significant history of criminal conduct. As a youth, he was found guilty of three counts of assault with a weapon, failing to comply with conditions of an undertaking, robbery, being disguised with intent, trafficking in cocaine, and possession of the proceeds of crime. His longest custodial sentence as a youth was four months in custody. As an adult, the accused has only been found guilty of one prior criminal offence, an assault, for which he was given a conditional discharge and a 12 month period of probation in March of 2012.

[14] The accused has five siblings, some older and some younger. His brothers and sisters appear to remain largely supportive. At the time of the offences, the accused was living at home with his disabled mother, in a subsidized housing unit in Toronto. His father is deceased. His mother has indicated that, when he is ultimately released from custody, he is welcome to return to her residence and continue living with her.

[15] The accused has a grade 12 education, and completed his secondary school education with good grades. While he wanted, at one point, to go to law school, he did not immediately take any productive steps toward such an education. In the fall of 2010 the accused was registered to attend a paralegal program in a Toronto college. However, just as he was commencing this program, he was arrested in relation to his one adult offence, and the conditions of his release (i.e. house arrest) prevented him from continuing with this educational program, or seeking employment. The accused has since accepted that he will not be able, realistically, to continue in this program, and will not be able to become a paralegal. The only “job” in which the accused has been engaged, during the short period between the completion of his high school studies and the onset of his paralegal program, was drug trafficking. The accused has indicated, however, that eventually he wants to study a trade and secure employment in the construction industry.

D. The Rule Against Multiple Convictions

[16] The accused contends that, pursuant to the rule in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-754, he cannot be convicted of all of the crimes of which he has been found guilty. 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. This rule prevents multiple convictions where there is both a factual and legal nexus amongst the 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 conditionally stayed. See also: R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3, at pp. 12-18; 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, [2013] O.J. No. 2257, at paras. 37-46; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (Loose-Leaf, 2nd ed.), vol. 2, at § 16:6000.

[17] I agree that the Kienapple principle applies 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 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 greater maximum sentence. The accused will, accordingly, be convicted of the s. 95(1) offence, but the finding of guilt in relation to the s. 91(1)(a) offence will be conditionally stayed. See: R. v. Naples, 2009 BCCA 141, 268 B.C.A.C. 233, at paras. 2-4; R. v. Vidal, 2009 BCSC 1095, [2009] B.C.J. No. 1602, at paras. 1, 10; R. v. Duhamel, 2013 ONSC 1340, 1 C.R. (7th) 200, at paras. 12, 52.

[18] While defence counsel argued that the same result should obtain with respect to the finding of guilt for the offence of possession of a firearm knowing that he was not the holder of a licence under which he may lawfully possess it, contrary to s. 92(1)(a) of the Criminal Code, the authorities emanating from this court that have analyzed the issue have held to the contrary. See: R. v. Stephens, [2009] O.J. No. 6102 (S.C.J.), at paras. 21-24; R. v. Brown, 2013 ONSC 4230, [2013] O.J. No. 3095, at paras. 39-44; R. v. Saikaley, 2013 ONSC 2699, [2013] O.J. No. 2331, at paras. 14-34; R. v. Hamilton, 2013 ONSC 3127, [2013] O.J. No. 2715, at paras. 1, 3; R. v. Williams, [2007] O.J. No. 1354, at paras. 2-3; R. v. Harutyunyan, 2012 ONSC 58, affirmed: 2012 ONCA 637, at paras. 4-8; R. v. Crevier, at paras. 37-46. These authorities collectively suggest that there are significant and sufficient legal differences between the offences created by ss. 95(1) and 92(1) such that an accused may properly be convicted of both without violating the rule in Kienapple. Some of these authorities note that the main legal difference between these offences is that the s. 92(1) offence requires proof of a specific intent, namely, that the accused had possession of the firearm “knowing” that he or she was not the holder of the requisite licence and registration certificate, whereas the s. 95(1) offence does not require proof of this specific intent. Accordingly, the accused will also be convicted of the offence contrary to s. 92(1) of the Criminal Code.

[19] The Crown has conceded that the accused cannot properly be convicted of both the offences of careless storage of ammunition and carelessly carrying a firearm, given that the only evidence that the accused carelessly stored ammunition was the evidence that the accused was carelessly carrying a loaded firearm. Accordingly, the accused will be convicted of the more serious offence of carelessly carrying a firearm, and the finding of guilt in relation to the offence of careless storage of ammunition will be conditionally stayed.

[20] The Crown has also conceded that the accused cannot properly be convicted of both the offences of possession of cocaine for the purposes of trafficking and simple possession of cocaine. Accordingly, the accused will be convicted of the more serious offence of possession of cocaine for the purposes of trafficking, and the finding of guilt in relation to the lesser offence of simple possession of cocaine will be conditionally stayed.

[21] The accused will be convicted of the three remaining offences of which he has been found guilty, namely, possession of proceeds of crime and two counts of breaching firearms prohibition orders. These 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 Governing Sentencing Principles

[22] 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: (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.

[23] 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.”

[24] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including the following: (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.

F. The Aggravating and Mitigating Circumstances of this Case

[25] As outlined by Crown counsel in her submissions, the aggravating circumstances of this case include all of the following:

• While the accused is still a young man, he has a lengthy youth record for serious offences, and has already been found guilty of one criminal offence as an adult.

• The semi-automatic firearm in the possession of the accused was fully loaded and ready to fire, in that the magazine contained nine rounds of ammunition, there was one round in the chamber and the firearm had no “safety” mechanism.

• The accused was clearly using the loaded firearm to protect himself in connection with his drug trafficking enterprise.

• In his trial testimony, the accused candidly admitted that he was engaged in trafficking in cocaine. Indeed, the accused admitted that the cocaine in his possession on the night of the offences was for purposes of sale, and the significant amount of cash in his pocket was the proceeds of an earlier drug transaction.

• The flight by the accused and his struggle with the police caused a great risk to public safety, in that if the gun had been fired, either intentionally or accidentally, one of the police officers, a member of the public, or the accused himself might easily have been wounded or killed.

• These offences took place in an area of Toronto plagued by an inordinately high incidence of violent and dangerous crime, and the vulnerability of the members of the community who live in this area of the city was well known to the accused.

[26] As outlined by defence counsel in her submissions, the mitigating circumstances of this case include all of the following considerations:

• The accused is still a very young man and, given his personal circumstances, the accused has reasonable prospects for rehabilitation.

• While the accused has a youth record, and has been found guilty as an adult with respect to one earlier matter, these offences are his first adult convictions.

• In terms of the previous sentencing dispositions that have been imposed upon the accused, either as an adult or a youth, the most serious disposition required him to serve but a few months in custody.

• There is no evidence that the accused ever shot the firearm, or used it as a weapon or threat against any person.

• The firearm found in the possession of the accused has not been traced back to the commission of any earlier criminal offences.

• The accused took steps to expedite his trial, and did not contest some aspects of the case against him.

G. The Global Sentence Merited by the Offences and the Offender

[27] I have reached the conclusion that, for the following reasons, the appropriate global sentence, in all of the circumstances of the present case, is a sentence of five years imprisonment. More particularly, in my view, the accused should receive an effective sentence of three years imprisonment for the firearms offences, an additional one year term of imprisonment for the drug offence and the proceeds of crime offence, and an additional one year term of imprisonment for breaching the two weapons prohibition orders. That is the effective sentence that will be imposed upon the accused today, less the enhanced credit for his time in pre-sentence custody.

[28] Accordingly, after appropriately crediting the accused with having already served the equivalent of three years, two months and 20 days, the accused shall now be sentenced to a total reformatory term of incarceration of one year, nine months, and 10 days. In an effort to sensibly break down this total figure into smaller terms of imprisonment, and making some of the sentences appropriately consecutive, I sentence the accused as follows:

• For the firearms offences outlined in counts two, three and five of the indictment, the accused is sentenced to a term of seven months and ten days imprisonment on each count (concurrent);

• For the two breach of court order offences described in counts six and seven of the indictment, the accused is sentenced to a further seven month term of imprisonment (concurrent – but consecutive to the sentence for the firearms offences); and,

• For the drug offence in count eight of the indictment and the proceeds of crime offence in count 10 of the indictment, the accused is sentenced to an additional seven month term of imprisonment (concurrent – but consecutive to the sentences for the firearms offences and the breach of court order offences).

[29] Totaling these three groups of consecutive sentences, results in the imposition of a total sentence of one year, nine months and ten days imprisonment. I will also impose a three year term of probation and the ancillary sentencing orders to which the parties have essentially agreed.

H. The Firearms Offences

[30] The circumstances of the present case have led me to conclude that the firearms offences call for the imposition of a three year penitentiary term of imprisonment. I appreciate that there is no longer any three year mandatory minimum sentence of imprisonment for the offence of unlawfully possessing a loaded prohibited firearm while not the holder of an authorization or licence and registration certificate, pursuant to s. 95(2)(a)(i) of the Criminal Code. I impose this sentence on the accused only because I consider it is fair and appropriate in all of the circumstances. See: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 4, 6, 51-52, 107-109, 144, 206.

[31] The accused was walking the streets of Toronto with a fully loaded semi-automatic handgun that was ready to fire. The magazine was full of ammunition, there was a bullet already in the firing chamber, and there was no functioning safety mechanism anywhere on the firearm. All that was required to discharge the firearm was for the accused to pull the trigger. In R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.), at para. 25, Malloy J. made these observations about the grave danger inherent in just such a situation:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[32] The attempted escape by the accused and his strenuous struggle with the police served only to increase this great risk to public safety. Had the gun been fired, either intentionally or accidentally, one of the investigating police officers, an innocent member of the public nearby, or the accused himself, might easily have been wounded or killed.

[33] The criminal possession of handguns in these circumstances remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. These firearms are almost invariably tools employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death. In the present case, the accused used his firearm as protection in furtherance of his illicit drug trafficking. In so doing, the accused could easily have caused grievous bodily harm or death to others. Accordingly, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence, and which appropriately stress the need to denounce and deter such crimes. The public simply must be adequately protected. 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, 277 O.A.C. 223, at para. 14; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at paras. 10, 58, affirmed: 2013 ONCA 223, 305 O.A.C. 47, at para. 17; R. v. Chambers, 2012 ONSC 817, [2012] O.J. No. 462, at paras. 15-17, affirmed: 2013 ONCA 680, 311 O.A.C. 307; R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, at paras. 13-14, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, at paras. 22, 24; R. v. Brown, 2013 ONSC 4230, [2013] O.J. No. 3095, at paras. 48-50, 76-78.

[34] As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, “[m]ost s. 95 offences will attract a penitentiary term even for first offenders,” and even “less serious” versions of the crime than are typically committed “will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” See also: R. v. Nur, at paras. 107-109, 206, affirming on this point: 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-45, 49-52, 70, 145-149; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710, at paras. 9, 20-25; R. v. Husaini, 2013 ONSC 7737, [2013] O.J. No. 5832, at paras. 24-29; R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749, at paras. 21-28.

I. The Drug Trafficking Offence

[35] In all of the circumstances of this case, the accused should receive an additional one year term of imprisonment for the drug trafficking offence and the proceeds of crime offence. In R. v. Peterkin, I concluded that a 22-year-old accused, with no prior criminal record, who had been found in possession of a fully loaded semi-automatic firearm and commercial quantities of marihuana and crack cocaine, should receive a sentence of three years for the firearm offence and a one year consecutive term of imprisonment for the drug offence. In arriving at that conclusion, I made the following observations, at para. 23, which I consider to be equally applicable in the present case:

This firearms offence was not, however, the only offence committed by the accused. He was also found in possession of commercial quantities of cocaine and marihuana and the other typical trappings of the drug trafficking trade. In my view, this changes the complexion of the case and renders the criminal conduct of the accused significantly more serious. Indeed, whether the accused’s drug offence, namely, the unlawful possession of a controlled substance (cocaine) for the purpose of trafficking, is treated as an aggravating circumstance of the firearms offence, or requires the imposition of a separate consecutive sentence, in my view, this offence must increase the effective custodial sentence on the accused by at least a year. The combination of illegal loaded firearms and the sale of illicit drugs is a very dangerous and toxic mix that requires the imposition of serious penitentiary terms of imprisonment. See: R. v. Grant, 2006 18347 (ON CA), [2006] O.J. No. 2179 (C.A.), at para. 82; varied: 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Brown, [2007] O.J. No. 5338 (S.C.J.), at paras. 34-38; R. v. Dass, [2008] O.J. No. 1161 (S.C.J.), at paras. 19-33; R v. Manning, [2007] O.J. No. 1205 (S.C.J.), at para. 16; R. v. Williams, [2007] O.J. No. 1354 (S.C.J.), at para. 34; R. v. Duhamel, 2013 ONSC 1340, at para. 39.

[36] There are a number of other authorities to a similar effect. See: R. v. Marshall, 2013 ONSC 6206, at paras. 31-38; R. v. Johnson, 2013 ONSC 4217, [2013] O.J. No. 2957, at paras. 12, 26-28, 31-34.

J. Breach of the Weapons Prohibition Order

[37] At the time of his firearm offences, the accused was subject to two court orders which strictly prohibited him from the possession of such a weapon