ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: COURT FILE NOS.: CR-14-40000194 and 193
DATE: 20141217

B E T W E E N:

HER MAJESTY THE QUEEN

Stephen Stirling for the Crown

• and -

JASON BURGHER

David Bayliss and Christopher Chu (student-at-law) for Jason Burgher

HEARD: December 4, 2014

Thorburn J.

REASONS FOR SENTENCE

1. THE CONVICTIONS

The Convictions

1Jason Burgher was found guilty by a jury of the following offences:

(a) possession of a restricted Glock handgun together with ammunition for that firearm without a licence (Count #1);

(b) possession of a Glock handgun without being the holder of a license (Count #2);

(c) possession of prohibited Smith and Wesson handgun together with ammunition for that firearm without a license (Count #3);

(d) possession of a Smith and Wesson handgun without being the holder of a license, (Count #4);

(e) possession of 1 1/4 kilogram of cocaine and/or crack cocaine for the purpose of trafficking (Count #5);

(f) possession of 1.14 grams of heroin (Count #6); and

(g) possession of $16,059.00, knowing that all of part of it was obtained directly or indirectly through the commission of a crime (Count #7).

All of the above items were found at 375 Westmount Avenue apartment 107 or in the vehicle operated by Mr. Burgher on that day.

2Counsel agreed that six additional charges involving the breach of three prohibition orders dated April 19, 2004, August 27, 2008 and January 21, 2011 would be dealt with by judge alone after the jury rendered its verdict on the other charges.

3I find him guilty of those additional charges as follows:

(a) Possession of the Glock handgun while prohibited from doing so by an order dated January 21, 2011, contrary to section 109 of the Criminal Code;

(b) Possession of the Smith and Wesson handgun while prohibited from doing so by an order dated January 21, 2011, contrary to section 109 of the Criminal Code;

(c) Possession of the Glock handgun while prohibited from doing so by an order dated August 27, 2008, contrary to section 109 of the Criminal Code;

(d) Possession of the Smith and Wesson handgun while prohibited from doing so by an order dated August 27, 2008 contrary to section 109 of the Criminal Code;

(e) Possession of the Glock handgun while prohibited from doing so by an order dated April 19, 2004 contrary to section 109 of the Criminal Code;

(f) Possession of the Smith and Wesson handgun while prohibited from doing so by an order dated April 19, 2004, contrary to section 109 of the Criminal Code.

4I do so because section 742(2) of the Criminal Code provides that where the court is composed of a judge and jury, the court must accept as proven all facts, express or implied, essential to the jury’s guilty verdict. Those facts include the fact that at the time the firearms were found by police, there were three orders prohibiting Mr. Burgher from being in possession of a firearm. The jury convicted Mr. Burgher of possession of two firearms and ammunition for them.

2. THE PRINCIPLES OF SENTENCING

5Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the court must consider:

(1) denunciation of the unlawful conduct;
(2) deterring the offender and others from committing offences;
(3) separation of offenders from society where necessary;
(4) rehabilitation of offenders;
(5) reparation for harm done to victims or to the community; and
(6) promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

6The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Therefore, a sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender.

7Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. Sentencing ranges are useful to provide guidelines for trial judges. (R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290.)

8A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. (Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729.) Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests. (R. v. Houle, 2008 ONCA 287.)

9Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), 1996 230 (SCC) and R. v. Gummer, 1983 5286 (ON CA).)

3. THE FACTS SURROUNDING THESE OFFENCES

The Facts Surrounding These Offences

10On January 6, 2012, a search warrant was granted giving police the right to conduct a search at 375 Westmount Avenue, apartment 107. The warrant was issued based on the belief that Jason Burgher was in illegal possession of a firearm.

11Mr. Burgher claimed he did not reside there but came to see his children a few times a week. On January 8, he came to 375 Westmount Avenue apartment 107 at about 9 a.m. Ms. Hooper left with the children around 10 a.m. She did not return until approximately 8:30 p.m.

12Several police officers went to 375 Westmount Avenue to conduct surveillance at the property on January 8, 2012. They were looking for a firearm. Mr. Burgher was the target of the investigation.

13Officer Reid said he saw Mr. Burgher in the apartment between 6:00 p.m. and 7:05 p.m. Officer Mitchell said that between 6:30 and 7:30 p.m., she saw Mr. Burgher conduct what she believed to be two hand to hand drug transactions. Officer Fougere claims he saw Mr. Burgher go into a Pontiac Montana minivan. He testified that when Mr. Burgher entered the van, he had a black bag but when he got out of the van he no longer had it.

14Mr. Burgher approached Officer Mitchell in her unmarked vehicle, banged on the window and asked what she was doing there. She says he was aggressive. Officer Mitchell said she believed the investigation was compromised as she felt Mr. Burgher knew she was a police officer. Officer Reid therefore told the team, Mr. Burgher was to be arrested.

15Mr. Burgher walked back into the apartment. He put three laptops in a bag and left the apartment. Two of these laptops were later determined to have been stolen.

16Officer Magee ran up to apartment 107. Mr. Burgher was just outside the apartment. Officer Magee yelled “Stop. Police” and Mr. Burgher ran down the stairwell to the basement. Officer Magee ran after him.

17When Mr. Burgher reached the front foyer of the building, Officers Mitchell and Magee grabbed Mr. Burgher whereupon the three of them fell to the ground and Mr. Burgher was handcuffed and arrested. Police seized three laptops Mr. Burgher was carrying in a bag and $469 in cash on Mr. Burgher’s person. Officer Fougere seized an EEE laptop and a black bag that contained a digital scale and a small bag of cocaine. He also seized a black cellphone.

18In the bedroom of apartment 107, police witnesses testified that they found two firearms and a bag of ammunition in a box on the shelf in the bedroom cupboard, bags of cocaine and crack cocaine and a brick of cocaine (for the purposes of trafficking) and 1.14 grams of heroin (for his personal use), in a Toy Story box underneath the bed, and a bundle of $15,000 in cash tied with elastic bands on the floor under the headboard.

19Jason Burgher did not have authorization, a license or a registration certificate to possess a firearm. There is no registration certificate for either firearm. At the time of this offence, Mr. Burgher was subject to three court orders prohibiting him from being in possession of a firearm.

20Mr. Burgher admits that at the time of his arrest he was a drug dealer and that the drugs and money were his and held the guns and ammunition pending payment for drugs.

21Prior to their deliberations, at the request of Defence counsel and with the consent of the Crown, the jury was told that in order to convict Mr. Burgher of possession of these items, they had to be satisfied beyond a reasonable doubt that the items were found where police say they were: that is, in apartment 107 and in the vehicle Mr. Burgher had been driving before his arrest.

22A jury found that Burgher was in possession of the two firearms and ammunition, magazines, drugs and proceeds of crime where the police say they found them.

4. MR. BURGHER’S CRIMINAL RECORD

Mr. Burgher’s Criminal Record

23Mr. Burgher’s criminal record includes the following convictions:

Date
Conviction / Finding of Guilt
Sentence

2003-01-31
Toronto, Ont. (Youth Court)

Carrying Concealed Weapon – Sec. 90 CC

Probation for 12 months
(Entry retained per s.119(9) of the YCJA)

2004-04-19
Toronto, Ont.

(1) Possession of a schedule 1 substance for the purpose of trafficking – s. 5(2) CDS Act
(2) Possession of a Schedule 2 substance for the purpose of trafficking – s. 5(2) CDS Act

Suspended Sentence & Probation for 18 Months
(86 Days Pre-Sentence Custody)
Mandatory Prohibition Order per Section 109 CC

2006-07-06
Toronto, Ont.

Possession of a Scheduled Substance for the Purpose of Trafficking – s. 5(4) CDS Act

Suspended Sentence & Probation for 1 Year
(85 Days Pre-Sentence Custody)

2006-11-28
Toronto, Ont.

(1) Fail to comply with probation order – Sec. 733.1(1) CC
(2) Possession of a Schedule I substance – Sec 4(3) CDS Act

30 days on each charge concurrent

November 16, 2007

Dangerous Driving
Fail to Stop for Police

8 days PSC and 18 month driving prohibition
30 days jail concurrent

August 27, 2008

Possession for the Purpose of Trafficking - s. 5(2) CDSA

211 days presentence custody (straight) + 4 months jail
Mandatory 109 prohibition order (lifetime)

January 21, 2011

Possess loaded restricted firearm
Possess firearm while prohibited
Possess cocaine for the purpose of trafficking

735 days present custody (straight; credit given at 2:1)
Suspended sentence 3 years’ probation (concurrent on all counts)
s. 109 Prohibition order (lifetime)

June 10, 2011

Theft Over and Possession of Property Obtained by Crime

7 days presentence custody, and 15 days custody concurrent

5. THE CIRCUMSTANCES OF THIS OFFENDER

The Circumstances of This Offender

24Mr. Burgher is 30 years old. He has two children with whom he maintains contact and for whom he seems to have genuine affection. He is supported by his mother and sister who attended the trial.

25Burgher completed high school and attended one year of university. It is evident from his testimony that he is articulate and intelligent.

26Many of his prior convictions are for similar offences. At the time of his sentencing hearing for similar offences in 2011, he indicated that he intended to change his ways but did not.

27Sam Cole wrote the Pre-sentence Report provided at Mr. Burgher’s sentencing in 2011. He testified in this proceeding that at the time he wrote his Pre-Sentence report in 2011, Mr. Burgher gave him a “nebulous explanation” as to how he came into possession of a firearm. Sam Cole spoke to him about the effect of carrying a firearm. Mr. Burgher told him he intended to return to university and was putting his drug trafficking lifestyle behind him.

28In 2006, he was convicted of drug trafficking while he was bound by a probation order that prohibited him from being in possession of illegal drugs.

29On three prior occasions, orders have been issued to prevent him from being in possession of firearms for life.

30Two court officers, David Dick and Abido Apolowo, escorted Mr. Burgher in and out of court and sat with him in court on this proceeding. They testified that they each experienced difficulty with Mr. Burgher on one occasion.

31Officer Dick said that on October 1, Mr. Burgher’s counsel came to provide clothing. Mr. Burgher was put in an interview room and his clothing was provided to him. The shoes were sent to be X-rayed and as such, were not yet available to him. Mr. Burgher became irate that his shoes had not yet been provided to him and shouted, “You guys think this is a joke” and was otherwise disruptive.

32Officer Apolowo testified that on October 14, 2014, she saw Mr. Burgher’s lips move and believed he was whispering to his mother. She advised Mr. Burgher that there was a policy that he was not allowed to speak to anyone in court. Officer Apolowo testified that while they were near the elevator, Mr. Burgher called her Uncle Tom, bitch, racist and an embarrassment to her race. (She is black.)

33No evidence was lead to dispute these accounts.

34The Crown also produced a document from a court supervisor which contained information from other individuals at the institutions where Mr, Burgher was housed to the effect that there were incidents involving Mr. Burgher and other detained persons. No information about these incidents, who the perpetrator was, the nature of the incident or the circumstances surrounding the incidents was provided and although the Crown was asked if he wished to seek further information, he indicated that he did not wish to do so. Without any information about the circumstances of any of these incidents, they are of little or no value to assist in determining Mr. Burgher’s behaviour.

35Sergeant Everett Miller of the Maplehurst institution advised that Mr. Burgher has not been involved in any programs to further his education or his rehabilitation. Defence counsel noted that the number and type of programs available is very limited.

36Mr. Burgher chose to speak at his sentencing hearing. He sought clemency and stated that he recognized the harm to society, he regretted that he will not be able to play a meaningful role with his children for the foreseeable future, and said he understood the need to change his ways.

6. MR. BURGHER’S POSITION

Mr. Burgher’s Position

37Mr. Burgher’s counsel submits that a global sentence of seven to nine years is appropriate. He concedes these are serious offences and Mr. Burgher has a considerable record. However, Mr. Burgher has never been sentenced to a penitentiary sentence and counsel submits that a sentence of seven to nine years is considerable, is within the range for similar offences committed by similar offenders, and would serve the purposes of deterrence and denunciation without jeopardizing any chance Mr. Burgher might have for rehabilitation.

38He claims that three of the six prohibition order convictions should be stayed pursuant to the principle in R. v. Kienapple. He says there were three separate orders that were violated and that the two firearms were found together in a box along with ammunition for both handguns.

39He claims that in accordance with the rule in R. v. Summers, 2014 SCC 26, Mr. Burgher’s time spent in pre-sentence custody should be credited on a 1.5:1 basis.

40Finally, he disputes the Crown’s request to delay Mr. Burgher’s parole eligibility on the basis that this is an extraordinary remedy that has been and should be used sparingly by the courts.

7. THE CROWN POSITION

The Crown Position

41The Crown suggests that given that denunciation, deterrence and separation from society are primary concerns in cases involving firearms and trafficking large quantities of drugs, and that this offender has an escalating pattern of reoffending, Mr. Burgher should receive a global sentence of seventeen to nineteen years.

42The Crown submits that the global sentence be broken down as follows:

(a) Eight years for each of the two charges of possession of a firearm with ammunition to be served concurrently (Counts 1 and 3);
(b) Five years for each of two counts of possession of a firearm (Counts 2 and 4);
(c) Eight to Nine years for possession of cocaine and crack cocaine for the purpose of trafficking (Count 5);
(d) One year for possession of heroin (Count 6);
(e) Three years for possession of the proceeds of crime (Count 7); and
(f) Four and one-half to six years for breaching three different court orders not to be in possession of a firearm.

43Mr. Burgher was in breach of a probation order at time he committed these offences.

44The Crown suggests therefore that Mr. Burgher should be given no enhanced credit for time spent in pre-sentence custody.

45Finally, the Crown seeks a number of ancillary orders, the terms of which have been agreed to and are outlined in my conclusion as to sentence.

8. ANALYSIS AND CONCLUSION RE SENTENCING

Analysis and Conclusion Re Sentencing

Applying The Principles of Sentencing

Applying The Principles of Sentencing

46I have considered the principles of sentencing set out in the Criminal Code.

47General denunciation and deterrence are of primary importance when dealing with an accused with a sizeable criminal record involving firearms and drug trafficking.

48The aggravating factors in this case are as follows:

(a) Mr. Burgher has a lengthy, serious and escalating criminal record including a record for prior firearms offences and drug trafficking;
(b) although he is intelligent and supported by family, he has continued his lifestyle of crime;
(c) the two firearms and ammunition were found in the bedroom closet; and
(d) he was trafficking in cocaine while on bail pending appeal of a prior conviction.

49Mr. Burgher has no drug addiction and was engaged in mid-level drug trafficking for financial gain.

50There is no indication that Mr. Burgher has taken any steps to improve himself.

51Mr. Burgher expressed remorse.

52The mitigating factors are Burgher’s age and family support.

53Mr. Burgher is a young intelligent man who, if willing, would be a promising case for rehabilitation. I am however deeply concerned that notwithstanding several opportunities to turn his life around, this has not happened.

54Mr. Burgher does not have the benefit of a guilty plea.

The Appropriate Sentence for the Firearms and Ammunition Charges and Prohibition Orders

The Appropriate Sentence for the Firearms and Ammunition Charges and Prohibition Orders

55The following cases are instructive in learning what other courts have done in similar cases involving similar offenders convicted of possession of firearms, ammunition and breaches of court orders.

56In R. v. McCue, the Ontario Court of Appeal determined that a trial judge may consider a breach of a prohibition order either as an aggravating factor in fixing the sentence for the firearms offence or by imposing a consecutive sentence for the breach.

57I agree with the reasoning articulated in R. v. Hector that the unlawful possession of a loaded prohibited firearm is the “wrong” and the other offences are aggravating features of that wrong.

58Based on the sentences imposed in the above cases, and Mr. Burgher’s circumstances as set out above, the appropriate global sentence for possession of two firearms, a bag of ammunition for those firearms and breach of the prohibition orders is six and one-half years.

The Appropriate Sentence for Drug Trafficking

The Appropriate Sentence for Drug Trafficking

59In R. v. Bajada, the Court of Appeal held that a sentence of six years was appropriate for trafficking over one-half kilogram of cocaine by an individual with a lengthy criminal record.

60Similarly, in R. v. Macias, a first time offender received five years’ imprisonment for possession of approximately 1.3 kilograms of cocaine for the purpose of trafficking.

61The appropriate sentence for trafficking cocaine in this case is five and one-half years.

Determination of the Appropriate Global Sentence

Determination of the Appropriate Global Sentence

62A sentencing judge who orders an accused to serve time for multiple offences should ensure that the total sentence is just and appropriate.

63The “jump principle” does not apply in this case.

64The individual sentences are broken down as follows:

(a) Six and one-half years for each of the two charges of possession of a firearm with ammunition (Counts 1 and 3);
(b) Five years for each of two counts of possession of a firearm (Counts 2 and 4);
(c) Five and one-half years for possession of cocaine and crack cocaine for the purpose of trafficking (Count 5);
(d) One year for possession of heroin (Count 6);
(e) Two and one-half years for possession of the proceeds of crime (Count 7); and
(f) One and one-half years for breaching court orders not to be in possession of a firearm.

65When considering the totality principle, the sentence is reduced to ten and one-half years pre-sentence custody.

Parole Eligibility

Parole Eligibility

66Section 743.6(1) of the Criminal Code provides that the court may delay parole eligibility in certain circumstances.

67In R. v. Dankyi the court held that such an order is a special rule for special cases.

68In R. v. Goulet the Ontario Court of Appeal held that such an order is an exceptional measure and should only be invoked where there is clear evidence that an increase in the period of parole ineligibility is required.

69In this case, there are no clear reasons nor are there any comparable cases wherein such an order was issued. I decline to impose such an order.

Deduction for Time Spent in Pre-sentence Custody

Deduction for Time Spent in Pre-sentence Custody

70Mr. Burgher has been in pre-sentence custody since January 8, 2012.

71The Truth in Sentencing Act limits credit for pre-sentence custody but allows enhanced credit up to 1.5:1 if circumstances justify it.

72In R. v. Summers the Supreme Court of Canada held that the loss of early release alone will generally justify 1.5:1 credit.

73In accordance with the reasoning in Summers, the time spent will be accorded credit at a rate of 1.5:1.

Ancillary orders

Ancillary Orders

74On the consent of both parties:

(a) a Forfeiture Order is issued for the two firearms, ammunition, the two magazines and cash seized; and
(b) a Disposition Order is issued to return Ms. Hooper’s property and a Movado watch to its owner.

75Mr. Burgher shall provide a DNA sample pursuant to section 487.051(4) of the Criminal Code.

76An order is issued to prohibit Mr. Burgher from possessing any firearm or other weapon listed in section 109 of the Criminal Code for life.

77The Crown has agreed to seek further information to locate a ring belonging to a third party that has gone missing.

Thorburn J.