Her Majesty the Queen v. Nicholas Nascimento, 2014 ONSC 6739

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.

2At 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).

3The 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.

4Both 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

Overview of the Offences

5As 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

Pre-Trial Credit

6Mr. 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

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

Circumstances of the Offender

7Mr. 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.

8In 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

Position of the Parties

9The 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.

10As 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

A Word About Aggravating Circumstances

11Mr. 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

Mitigating Factors

12Mr. 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

Principles of Sentencing

13Parliament 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.”

14The 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.

15Both 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.”

16In 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.

17The 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…”

18In 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.”

19In 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.

20In 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.”

21In 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.”

22In 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.”

23For 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.

24With 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.”

25The 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. …”

26Amicus 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.”

27In 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.””

28With 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

Conclusion

29It 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.

30In 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.

31Count 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.

32I am imposing a further consecutive sentence of

two months for count two, possession of a

prohibited weapon, brass knuckles.

33On 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

Disposition

34Mr. 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.

35In 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.

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Form 2

CERTIFICATE OF TRANSCRIPT

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.