Court File No. 378/13
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
NICHOLAS NASCIMENTO
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE G. M. MULLIGAN
on September 12, 2014, at COBOURG, Ontario
APPEARANCES
M. Moorcroft Counsel for the Crown
A. Herscovitch Amicus for Nicholas Nascimento
FRIDAY, SEPTEMBER 12, 2014
R E A S O N S F O R S E N T E N C E
MULLIGAN, J. (Orally):
For reasons given on May 15, 2014, Mr. Nascimento was found guilty on a multi-count indictment following a judge-alone trial. The sentencing hearing was conducted on September the 5th, 2014.
Just before I continue, Mr. Nascimento, I know you spoke the other day, but is there anything further you wish to say today before I pronounce sentence? I did hear your comments the other day.
NICHOLAS NASCIMENTO: Yes, sir. When I asked the Heavenly Father to forgive for my sins he forgives me and I’m asking youse forgive me for whatever sins I have committed towards youse,
and I’m learning by reading the scripture it
says that at least if you ask forgiveness that the Heavenly Father will forgive you, but also
if you ask to be forgiven from others that they
should forgive you. And sayin’ all that that from what I understood is that wasn’t the law
made for to show us when we sin so we know to
get on the right path, ‘cause if there was no
law we wouldn’t know when we sin. So now
that I know how it all works I’m asking you to forgive me.
THE COURT: All right. Thank you, sir. So I say again, for reasons given on May 15, 2014, Mr. Nascimento was found guilty on a multi-count indictment following a judge-alone trial. The sentencing hearing was conducted on September the 5th, 2014.
[2] At the commencement of the trial, the Crown withdrew count one. The trial proceeded on counts two to 10. Those counts can be summarized as follows:
Count two - Possession of a prohibited weapon (brass knuckles) Count three - Possession of a loaded prohibited firearm (a machine pistol)
Count four - Careless storage of a prohibited weapon (a machine pistol)
Count five - Possession of a firearm knowingly without a licence
Count six - Possession of a firearm
without a licence
Count seven - Possession of a firearm
while being prohibited from doing so
Count eight - Possession of ammunition while being prohibited from doing so Count nine - Possession of a firearm knowing the serial number was obliterated
Count ten - Possession of a prohibited device (an overcapacity magazine without a licence).
[3] The Crown requested a stay with respect to count six, possession of a firearm without being the holder of a licence. The sentencing hearing proceeded with respect to the remaining counts.
[4] Both Crown and defence provided a Casebook of Authorities prior to the hearing. At the conclusion of the Crown submissions, Mr. Nascimento sought to discharge his lawyer,
wishing to proceed with his own submissions. Mr. Nascimento was given an opportunity for an adjournment of the sentencing hearing to enable him to retain a new lawyer or, at a minimum, to consult with duty counsel. Mr. Nascimento declined the opportunity for an adjournment and indicated he wished to proceed. Counsel for Mr. Nascimento was fully prepared to make submissions on his behalf, requested that he be appointed as amicus to make submissions to assist the court with respect to the defence position and comments on cases relied upon by the Crown. Neither Crown counsel nor Mr. Nascimento objected to the appointment of counsel as amicus. Mr. Nascimento was given an opportunity to reconsider his position over the lunch hour. When court resumed, he confirmed his request to proceed on his own with respect to his submissions. Therefore, an order was made removing counsel of record and appointing his former counsel as amicus.
Overview of the Offences
[5] As a result of a search warrant, the police found at Mr. Nascimento’s residence, a loaded, prohibited firearm wrapped in a towel, under
his bed. The firearm was a MAC 11 machine
pistol with no trigger lock. The serial number
was obliterated and an oversized magazine with
ammunition was beside it. In addition, the
machine pistol had been modified to make it
fully automatic; and a laser sighting device had
been added to it. Furthermore, the police found
brass knuckles and separate ammunition for
different weapons in various safes owned by
Mr. Nascimento. Subsequent to the search, Mr.
Nascimento was arrested. At the time of his
arrest, Mr. Nascimento was under a weapons
prohibition order for five years. That order
arose as a result of a conviction for an earlier
offence in 2010.
Pre-Trial Credit
[6] Mr. Nascimento was arrested on May 8, 2013, and
has therefore served almost 16 months in custody to the date of the sentencing hearing. He has a serious criminal record which I will speak later
to in my reasons. Both Crown and defence agreed
at the hearing that he should be given credit on
a one for one basis to the date of conviction.
That credit amounts to 12 months for time served
in custody until conviction; and six months on a
one for one point five basis, for the four
months served in custody from conviction to the
sentencing hearing. Therefore, the total
applicable credit discussed at the sentencing
hearing was 18 months.
Pre-Trial Credit and s. 719(3.1) of the Criminal Code
In a very recent decision, R. v. Safarzadeh-
Markhali, [2014] ONCA 627, the Ontario Court
of Appeal struck down a portion of s. 719(3.1)
of the Code, the words “the reasons for
detaining a person in custody was stated in the
record under s. 519(9.1)” were found to violate
s. 7 of the Charter and not saved by s. 1. The
core issue in that case was the trial judge’s
decision to grant one point five credit for each
one day of service for pre-trial custody for an
offender who had a previous criminal record.
The offender was found guilty of firearm and
drug offences. He received a six-year sentence.
During a police stop, he was found to be in
possession of a loaded pistol in his vehicle.
The focus of the issue as set out by Chief
Justice Strathy for the court at paragraph
25 was:
“The sentence appeal challenges the trial
judge’s finding that s. 719(3.1) of the
Code is inconsistent with the Charter and
of no force and effect in the proceeding.
The effect of s. 719(3.1), in combination
with s. 519(9.1), is that a person denied
bail primarily because of a previous
conviction, is ineligible for enhanced
credit for pre-sentence custody.”
The Court found that s. 719(3.1) interferes with
parity and stated at paragraph 97:
“Whether or not an offender was released on
bail is entirely irrelevant to the
determination of a fit sentence. An
offender denied bail is entitled to the
same sentence as an equally placed offender
who has been released on bail.”
The court refused to interfere with the
sentencing judge’s decision to allow a credit
of one point five for each day of pre-trial,
but declined to indicated that such pre-trial
credit should be capped across the board at
one point five. The court noted at paragraph
120 that a court should consider the following
factors:
“It would be possible to provide that in
considering whether to grant credit in
excess of one to one in any particular case,
a court must consider
(a) the offender’s criminal record;
(b) the availability of rehabilitative
programs, and the desirability of
giving the offender access to such
programs; and
(c) whether the offender was responsible
for prolonging the time spent in
pre-sentence custody.”
On the record before me, I am satisfied that
Mr. Nascimento was denied bail based on his
previous record. There is nothing on the record
before me indicating that he has taken any steps
to prolong time spent in pre-sentence custody.
Under the circumstances, I am satisfied that
Mr. Nascimento is entitled to credit for pre-
trial custody to the date of trial on the basis
of one point five days credit for each day spent
in custody. As the period in question was 12
months to trial, and a further four months to
sentencing, I apply a total credit of 24 months
to be applied against his ultimate sentence.
Circumstances of the Offender
[7] Mr. Nascimento is 47 years of age. He has a
lengthy criminal record beginning in 1984 when
he was 17. His offences range from break and
enter, possession of stolen property, assaults,
drug offences, and motor vehicle related
charges. He has been incarcerated on numerous
occasions, and his longest sentence was a 1998
conviction, leading to a substantial
penitentiary term. After his release in 2004,
he had one further conviction in 2010 for break
and enter. He was sentenced to time served,
seven months. Significantly, he was placed
under a five-year weapons prohibition order
pursuant to s. 110 of the Criminal Code.
[8] In speaking to sentencing, Mr. Nascimento spoke
about his personal circumstances. At the time
of the arrest, he was living with his
girlfriend, who was also charged with various
offences. She passed away prior to the trial of
this matter. He stated that they moved to a
rural location to get away from some of the
negative influences affecting her. Both he and
his girlfriend, he admitted, were struggling
with drug addiction. At the time of his arrest,
Mr. Nascimento had reached rock bottom. He now
acknowledges that he has wasted much of the last
30 years in and out of prison. Although he has
two adult children, he submits that he has no
family support. He concedes he has taken the
wrong path, but has recommitted his life while
in custody and found comfort and guidance in a
spiritual awakening. I accept his submissions
as an expression of his remorse.
Position of the Parties
[9] The Crown submits that based on the
circumstances of these offences and this
offender, a global sentence of seven to eight-
and-a-half years is warranted, minus the pre-
trial and pre-sentencing credits. The Crown
further submits that a sentence of five to six
years is warranted for possession of the loaded
prohibited firearm, with a combination of
consecutive and concurrent sentences for the
balance of the offences.
[10] As amicus, counsel submits that a fit sentence
would be four to five years incarceration, minus
the pre-trial and pre-sentencing credits.
Amicus also points out that although Mr.
Nascimento served penitentiary time, his
conviction was 16 years ago, and since then he
has had only one conviction in 2010 for a
property related offence. Mr. Nascimento has
not been involved in crimes of violence since
convictions for assault in 1998 and 1991.
Further, Mr. Nascimento was not carrying the
firearm on his person, either in public or while
travelling in a car; and no other individuals
except for he and his girlfriend had access to
the residence where the weapon was stored.
A Word About Aggravating Circumstances
[11] Mr. Nascimento is not a young offender. He is
47 years of age with a very serious criminal
record that includes penitentiary time, as well
as numerous other incarcerations over the last
30 years. At the time of these offences, he was
under a weapons prohibition order. The machine
pistol was readily accessible. It was under a
bed, loaded, ready to fire, with available
ammunition.
Mitigating Factors
[12] Mr. Nascimento has been in custody for the last
number of months and there are no reported
incidents involving misbehavior on his part.
However, there is an absence of many of the
usual mitigating factors often found in other
cases, such as a young age, no previous
convictions, or previous convictions but no
penitentiary time, family support or prospects
of rehabilitation. In my view, the fact that he
was not carrying the prohibited weapon in public
or that there were not children residing in the
home, adds minimally to the mitigation analysis.
Principles of Sentencing
[13] Parliament has now codified many former common
law sentencing principles in the Criminal Code.
The fundamental purpose of sentencing, described
in s. 718 of the Code, is “to contribute, along
with crime prevention initiatives, to respect
for the law and the maintenance of a just,
peaceful and safe society by imposing just
sanctions.”
[14] The Code sets out six objectives for sentencing
judges to consider at s. 718(a) to (f):
(i) to denounce unlawful conduct;
(ii) to deter the offender and other persons
from committing offences:
(iii) to separate offenders from society,
where necessary;
(iv) to assist in rehabilitating offenders;
(v) to provide reparations for harm done to
victims or to the community; and
(vi) to promote a sense of responsibility in
offenders, and acknowledgement of the
harm done to victims and to the
community.
[15] Both Crown and amicus filed Casebook of
Authorities to assist the court in crafting a
fit sentence for this offender. The Crown’s
focus was on the need for the court to impose a
substantial penitentiary term with respect to
possession of the machine pistol, contrary to
s. 95(a) of the Criminal Code. The Crown
acknowledges that the Court of Appeal has struck
down the three-year minimum sentence imposed by
Parliament for such offences in R. v. Nur,
2013 ONCA 677, [2013] ONCA 677, 117 O.R. (3d) 401. But the
Crown argues that as in Nur, the circumstances
of this offence and this offender still warrant
a lengthy sentence. In Nur, a 19-year-old
offender threw away a loaded semi-automatic
handgun while being chased by the police. He
was a first offender. The Court of Appeal noted
that he had served the equivalent of a 40-month
sentence and did not disturb the sentencing
decision of the trial judge. However, the court
made various observations to assist sentencing
judges, noting that even first offenders require
a significant jail term. When addressing the
issue of the purpose of s. 95, the court stated
at paragraphs 54 to 55:
“[54] …Experience teaches that certain kinds
of firearms, e.g. handguns, sawed-off
shotguns, and automatic firearms, are the
weapons of choice for the criminal element.
Those kinds of firearms pose an added
danger to the public. They become even
more dangerous when loaded or when usable
ammunition is readily available to the
person in possession of the firearm.”
“[55] …By criminalizing possession
simpliciter, the criminal law can intercede
before someone is actually harmed and before
criminal activity, so often associated with
the possession of these kinds of firearms,
actually occurs or is attempted.”
[16] In considering the constitutionality of the
minimum three-year sentence, the court discussed
a spectrum ranging from an otherwise law-abiding
responsible gun owner at one end of the
spectrum, to an outlaw who carries a loaded
prohibited or restricted firearm in a public
place as a tool of his or her criminal trade, at
the other end.
[17] The court concluded at paragraph 206:
“Nor do my reasons have any significant
impact on the determination of the
appropriate sentence for those s. 95
offences at what I have described as the
true crime end of the s. 95 spectrum.
Individuals who have loaded restricted or
prohibited firearms that they have no
business possessing anywhere or at any time,
and who are engaged in criminal conduct or
conduct that poses a danger to others should
continue to receive exemplary sentences that
will emphasize deterrence and denunciation…”
[18] In R. v. Brown, 2010 ONCA 745, [2010] ONCA 745, 277 O.A.C. 233,
the Court of Appeal set aside a sentence of five
years, six months for possession of a restricted
firearm, and a one-year concurrent on sentence
on possession of a firearm contrary to a
prohibition order and substituted a sentence of
seven-and-a-half years for possession of the
restricted firearm and one year consecutive for
breach of the firearm’s prohibition order, less
credit for time served. At trial, the offender
pleaded guilty and co-operated with the police.
However, he had two previous convictions for
possession of firearms. At the time of the
arrest the offender was carrying a loaded
semi-automatic handgun while getting into a car.
He was in Canada illegally, having been deported
previously. He had a lengthy criminal record
and the court noted at paragraph 13, “The
circumstances of this offence and this offender
called out for an exemplary sentence to achieve
the sentencing goals of denunciation and
deterrence.”
[19] In R. v. Charles, [2013] ONCA 681, 117 O.R. (3d)
456, the Court of Appeal again reviewed s. 95(1)
in the context of the five-year mandatory minimum given the offender’s two previous
convictions that triggered the five-year
mandatory minimum. Although the court struck
down the five-year mandatory minimum, it upheld
the sentencing judge’s decision on the facts of
that case, a seven-year imprisonment. The
police seized a semi-automatic handgun from
Mr. Charles’ bedroom. It was loaded and
equipped with an overcapacity magazine. The
serial number had been obliterated. Mr. Charles
did not have a licence or a registration
certificate. He pleaded guilty at trial and had
an extensive criminal record.
[20] In addition, the Court of Appeal upheld a
further one-year consecutive sentence for
breaching a court order. As the court stated
at paragraphs 100 and 102:
“[100] …There is an important societal
interest in seeking to prevent repeat
offenders who are subject to firearms
prohibition orders from continuing to
commit gun crimes.”
“[102] …The breach of a firearms prohibition
order is no trifling matter. …The
mandatory prohibition relates to a
recognized sentencing goal to protect the
public. …The state interest in reducing the
misuse of weapons is valid and important.”
[21] In R. v. Chambers, [2013] ONCA 680, 311 O.A.C.
307, the Court of Appeal upheld a trial judge’s
decision of eight years for various counts
including possession of a restricted firearm,
two counts of breach of a firearms prohibition
order, and related offences. After a police
chase during which a handgun was thrown away,
Mr. Charles was arrested. The handgun was
loaded and ready for firing. The offender was
25 years of age, and this was his third
conviction for a firearms offence. Previously,
he had two firearms prohibition orders. As part
of the sentencing decision, the sentencing judge
imposed a one-year jail term for each of the
breaches of the firearms prohibition orders to
be served consecutively. The court agreed that
these sentences should be served consecutively,
and stated at paragraph 22:
“…The orders, the firearms prohibitions,
were imposed at different times, separated
by a period of approximately four years, and
in respect of different firearms offences.
As the sentencing judge observed, each
prohibition order breach was a separate
and distinct offence. That the social
purpose of the prohibition orders was the
same - to prevent the appellant’s possession
of firearms - does not detract from the fact
that the breaches constituted separate
offences, referable to prohibition orders
imposed at different points in time, in
different circumstances.
As to the argument that the consecutive sentence
would offend the totality principle, the court
noted at paragraph 27:
“…The sentence imposed on Count 8, the
breach of prohibition order, is consistent
with the totality principle, which seeks to
ensure that the total sentence imposed does
not exceed the overall culpability of the
offender.”
[22] In Chambers, the court made reference to its
previous ruling in Brown. Mr. Brown had some
potential for rehabilitation, as opposed to
Mr. Chambers’ aggravating conduct in carrying
a firearm and resisting arrest. At paragraph
41, the court repeated its warning about the
seriousness of handgun offences:
It stated,
“I also note that, in Brown, this court once
again emphasized, at paragraph 14:
Handguns are an all too prevalent menace
in the Greater Toronto Area. First and
foremost, the sentences imposed for
firearms offences must further the
sentencing goals of denunciation,
deterrence and protection of the
public.”
[23] For the defence, amicus made reference to a
number of cases in his Book of Authorities.
In R. v. McCue, 2012 ONCA 773, [2012] ONCA 773, 299 O.A.C. 14,
the court imposed a four-year sentence for
possession of a loaded prohibited firearm,
together with a six-month consecutive sentence
for possession of a firearm while under a
prohibition order and, a further 90-day
consecutive sentence for mischief. The Court
of Appeal noted the offender’s serious criminal
excess of three years. The offender threw away
a gun while being chased by the police. The gun
was a loaded 9mm semi-automatic handgun.
[24] With respect to whether other offences should be
concurrent or consecutive, the court stated at
paragraph 20:
“The mischief conviction warranted a
consecutive sentence. …Of course, in fixing
the appropriate length of a consecutive
sentence, a trial judge must have regard to
the totality of the sentences to be imposed.
Totality concerns can, however, be
adequately addressed by adjusting the length
of the various consecutive sentences, if
necessary.”
[25] The Court of Appeal also dealt with the issue of
whether or not a sentence for possession of a
weapon while prohibited by a court order should
be consecutive or concurrent. The Court of
Appeal provided the following guidance at
paragraph 22:
“We think the trial judge had two options in
considering the impact of the breach of the
probation order. She could have taken the
breach into account as a significant
aggravating factor when fixing the
appropriate sentence on the possession of a
loaded firearm charge, and then imposed a
concurrent sentence on the charge alleging
a breach of the prohibition order.
Alternatively, the trial judge could have
ignored the prohibition order in fixing the
appropriate sentence on the possession of
the weapon charge and then imposed a
consecutive sentence on the charge alleging
the breach of the prohibition order. …”
[26] Amicus also relied on several sentencing
decisions by trial judges. In R. v. Hector,
[2014] ONSC 1970, [2014] O.J. No. 1617, the
trial judge imposed a total sentence of six
years before credit for pre-trial custody. The
sentence consisted of five years for possession
of a loaded prohibited firearm, together with a
one-year consecutive sentence for breaches of
possession orders. A fully loaded revolver was
located in Mr. Hector’s residence. In addition,
at trial he was convicted of possession of
marihuana and ecstasy for the purpose of
trafficking. He was subject to three separate
prohibition orders prohibiting him from
possessing firearms. Mr. Hector was 29 years of
age with a significant criminal record. In
determining a fit sentence, the sentencing judge
considered the Court of Appeal’s decisions in
Charles and Chambers, weighing the various
factors in those cases against the circumstances
involved with Mr. Hector. In assessing his
approach to determining a fit sentence, Justice
MacDonnell stated at paragraph 41:
“Mr. Hector is to be sentenced for eight
offences. While each of them must receive a
separate sentence, the unlawful possession
of a loaded prohibited firearm is the
“wrong” at the core of this case, and each
of the other offences is in substance an
aggravating feature of that wrong. The most
sensible way to approach the determination
of the individual sentences, therefore, is
to first consider what global sentence would
be appropriate for the entirety of the
circumstances and then to impose individual
sentences that will achieve that global
sentence.”
[27] In R. v. Vader, [2013] ONSC 109, [2013] O.J. No.
799, Justice Lauwers imposed a global sentence
of five-and-a-half years prior to credit for
pre-trial custody. The offences included
possession of a prohibited firearm and
possession of a firearm while prohibited. At a
traffic stop, the police located several long
guns in Mr. Vader’s car. They later located a
revolver at his residence. Mr. Vader was a 29
year old man who acknowledged both his substance
abuse problems, and his previous convictions.
The court noted he expressed remorse and had
family support, and a potential to turn his life
around. Mr. Vader had not served any time in
the penitentiary for previous offences. As the
court observed at paragraph 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.””
[28] With respect to the issue of consecutive
sentences, the court noted at paragraph 26:
“In determining the relationship between
the 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.
Conclusion
[29] It is clear that the primary sentencing
consideration for gun related offences is
denunciation and deterrence. Those factors are
always present but a number of other factors can
determine whether a sentence should be toward
the lower or higher end of the appropriate
range. I am also satisfied that I will
determine individual sentences, whether they be
consecutive or concurrent for the counts before
the court in the context of an appropriate
global sentence for this offender.
[30] In determining a fit sentence, I have considered
submissions from the Crown, amicus, and Mr.
Nascimento. Although he has been in custody for
a number of months without incident, he has a
serious criminal record, including substantial
penitentiary time for one set of offences and,
was subject to a weapons prohibition order as a
result of an offence committed in 2010. It
appears he has no family or community support,
but he did express remorse at his sentencing
hearing. The weapon that was under his bed at
his residence was a machine pistol, which was
loaded and ready for use. It was easily
accessible, and had been modified to make it
automatic, and the serial number was
obliterated. In considering the spectrum of
possession of a particular weapon as outlined by
the Court of Appeal in Nur, there is no doubt
that this weapon and its location rise to the
top of the criminal spectrum analysis. At the
same time, the firearm was at his residence,
where no other occupants other than himself and
his girlfriend resided, and was not carried
about in the community or on his person. I am
satisfied that a fit sentence for Mr. Nascimento
for this offence is five years in the
penitentiary prior to applying pre-sentencing
credits.
[31] Count seven and count eight deal with possession
of a firearm and possession of ammunition while
under a prohibition order. I am satisfied that
these are separate offences which warrant
separate and consecutive sentences. I would
impose a sentence of one year consecutive for
each, but these sentences are to be concurrent
with each other.
[32] I am imposing a further consecutive sentence of
two months for count two, possession of a
prohibited weapon, brass knuckles.
[33] On the balance of the other counts, I impose the
following sentences, which will be concurrent
with the five-year sentence imposed for the
possession of the prohibited weapon:
Count four - Careless storage of a prohibited
weapon - two months concurrent;
Count five - Possession of a firearm knowingly
without a licence - three months concurrent;
Count six - Possession of a firearm without a
licence - stayed at the request of the Crown;
Count nine - Possession of a firearm knowing
that the serial number was obliterated - four
months concurrent;
Count 10 - Possession of a prohibited device -
an overcapacity magazine without a licence
- three months concurrent.
Disposition
[34] Mr. Nascimento, please stand. On a global
basis, I impose a sentence of six years and two
months, which, after giving you credit of 24
months for pre-trial and pre-sentence custody, I
round down to 50 months, or four years and two
months, remaining to be served. Prior to
applying those credits, the disposition with
respect to each count is as follows:
Count three - Possession of a loaded
prohibited firearm - five years
imprisonment;
Counts seven and eight - Possession of a
firearm while prohibited and possession of
ammunition while prohibited - one year
imprisonment on each count, concurrent with
each other but consecutive to the sentence
on count three;
Count two - Possession of brass knuckles
- two months imprisonment, consecutive to
count three;
Count four - Careless storage of a
prohibited weapon - two months, concurrent;
Count five - Possession of a firearm
knowingly without a licence - three months,
concurrent;
Count six - Possession of a firearm without
a licence - stayed at the request of the
Crown;
Count nine - Possession of a firearm knowing
the serial number was obliterated - four
months, concurrent;
Count 10 - Possession of a prohibited device
an overcapacity magazine without a licence
three months, concurrent.
[35] In addition, I impose the following ancillary
orders:
(i) A mandatory life weapons prohibition
order, pursuant to s. 109; and
(ii) A forfeiture order and destruction order
regarding the firearm, magazine,
ammunition, brass knuckles, seized during
the execution of the search warrant.
Mr. Moorcroft and Mr. Nascimento, I will provide
an appendix outlining what I have said in terms
of the various counts to assist you, and Madam
Registrar, if you would take one yourself.
Mr. Moorcroft, you did not request a DNA order.
I believe there was one granted at an earlier
proceeding. We did not discuss it the other
day.
MR. MOORCROFT: We didn’t discuss it, sir.
That may have been in my ignorance. I didn’t
believe any of them were DNA offences. If I
have missed that I apologize.
THE COURT: No, they were not mandatory, I think
they were secondary, as I understand them.
So you may be correct in that.
MR. MOORCROFT: I should ask Your Honour -- I
am required to ask Your Honour to consider it.
Bluntly, sir, that was an oversight on my part.
My understanding is even if Your Honour orders
it they’ll just keep it on file.
THE COURT: All right. I will make the order.
It is a secondary offence, but they are serious
offences. So I will make that DNA order.
MR. MOORCROFT: Thank you, sir.
THE COURT: I will adjourn until Madam Registrar
has the necessary endorsements ready for my
signature.
MR. MOORCROFT: Thank you, sir.
THE COURT: I want to thank you, Mr. Moorcroft
and also Mr. Herscovitch for his able
submissions under the circumstances. His
request to be amicus was of assistance to the
court and I think it was a reflection on the
defence Bar that he agreed to do that.
MR. MOORCROFT: Thank you, sir.
THE COURT: Mr. Nascimento, good luck to you.
I hope that you will follow the path that you
are presently on and that you will seek any
to you and that you will follow the path when
you finish your incarceration that you are now
on. Thank you, sir.
C O U R T A D J O U R N E D
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Evidence Act, subsection 5(2)
I, Kathy M. Brisbin, certify that this document
is a true and accurate transcript of the recording of
R. v. Nascimento, in the Superior Court of Justice,
held at 860 William Street, Cobourg, Ontario
taken from Recording No. 2799-01-20140912-093533-10
which has been certified in Form 1.
Date (Signature of authorized person)
Transcript ordered.....................October 7, 2014
Transcript completed...................November 17, 2014
Transcript approved for release........November 19, 2014