R. v. Beals, 2015 ONSC 2911
COURT FILE NO.: CR-14-30000756-0000
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Appellant
– and –
Landrell Beals
Respondent
Julie Battersby, for the Crown
Alison Craig, for Mr. Beals
HEARD: January 30, March 18, & April 29, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT ON SENTENCE
1. Overview
[1] Landrell Beals pleaded guilty to possession of a loaded prohibited firearm. Police officers observed him toss something away after a car crash. That something turned out to be a loaded handgun. For the reasons that follow, the sentence is three years in the penitentiary, less 15 days credit for pre-trial custody and credit for house arrest which I assess at 4 ½ months. He will therefore serve 2 years and 7 months in the penitentiary.
2. The Facts
(a) Circumstances of the offence
[2] On October 6, 2013 at 4:47 am Landrel Beals was a passenger in a white 2008 Cadillac. His counsin Sanderico Beals was driving. They were racing with a yellow Ford Mustang. Both cars were travelling southbound on McCowan Avenue in the City of Toronto at a high rate of speed. The Cadillac stopped for a short time at the intersection of Sheppard Avenue East and McCowan Road. The Cadillac started driving through the intersection while the light was still red, and accelerated quickly. Sanderico Beals then lost control of the car. It crashed into a hydro pole.
[3] The whole incident was caught on the dashboard video camera of a police car, including the crash.
[4] After the crash the yellow Mustang pulled up near the white Cadillac. Sanderico Beals got out of the driver’s seat and ran over to passenger side of the Mustang. Someone was already sitting there, but that did not stop Sanderico from opening the door and jumping into the lap of the passenger.
[5] In the meantime, Landrell Beals got out of the passenger side of the white Cadillac. He started to walk away. Police officers observed him throw something onto a nearby grassy area. Concerned, the police arrested both Mr. Beals at gunpoint. The grassy area where Landrell Beals had thrown something was checked. The police found a loaded .22 semi-automatic handgun.
(b) Circumstances of the offender
[6] Mr. Beals is a 23-year old first offender with a high school education. He was born and raised in Nova Scotia. According to Ms. Craig, Mr. Beals was raised by his grandparents. That information may have come from Francine Grant, Mr. Beals’s aunt and surety, since it is reported in the Pre-sentence Report that he lived with his grandparents when his mother was in a “home”. Ms. Grant would not elaborate to the probation officer. Mr. Beals and his mother both indicated that he was raised by his mother. This may have simply been a misunderstanding, and in the end nothing turns on it.
[7] That said, the PSR revealed problems. Mr. Beals indicated to the probation officer that he was not responsible for the offence and only pleaded guilty for expediency’s sake. He gave her more than one story. That, of course, raised a very serious red flag for the Court. I required Mr. Beals to explain to the Court his true position. He testified under oath that he did, in fact, throw the gun and was in possession of it. When asked why he didn’t say that to the probation officer, and why he refused to take responsibility, he indicated that he wasn’t sure what to say without consulting his lawyer. While I do not want to make too much of this, I think it is troubling because Mr. Beals had already pleaded guilty. I’m not too sure what he thought he was hiding. Indeed, the probation officer submitted an amendment to the PSR after objections from Ms. Craig.
[8] Another problem was with Carmeal McLean. According to Mr. Beals he was in a common law relationship with Ms. McLean when he was arrested. She is an elementary school teacher and has two children from a previous relationship. According to Mr. Beals Ms. McLean’s mother lives next door to his aunt and surety, Ms. Grant. Ms. McLean initially agreed to a telephone interview with the probation officer, but then did not answer her phone at the agreed-upon time. The probation officer left messages on her phone. Ms. McLean did not return them. And yet, Ms. McLean appeared in court to support Mr. Beals.
[9] Mr. Beals’s employment history is also somewhat murky. The PSR did not do much to shed light on it. Mr. Beals did provide some information to the probation officer. He promised to provide more. The promised information and documents did not materialize. I accept, however, that Mr. Beals has been employed and is employable.
[10] Mr. Beals does have community support. He appears to take part in pro-social activities, such as going to the gym, taking on responsibilities with Ms. McLean and the children, working, and sending money to assist his mother. His community in Nova Scotia is also supportive, and letters were filed indicating that he remains in touch with several good role models there, including his high school track coach. According to Triple Balance, an organization that promotes children’s sports and fitness, Mr. Beals had completed 60 hours or more of community service as of December 2014.
[11] Unfortunately, however, it is difficult to know what to make of the PSR. It is possible that the probation officer and Mr. Beals took a dislike to each other. Personality clashes do happen, and that cannot be held against Mr. Beals. It is also strange that Mr. Beals’s common law spouse did not return the probation officer’s calls, and yet appeared in court during the sentencing proceeding. I understand the description of Mr. Beals as being uncooperative and having a poor attitude, since he did refuse to take responsibility for the offences, failed to return calls, and failed to provide some promised documents. That description contrasts with the information provided that he was polite and respectful to the police and to others. I also agree with Ms. Craig’s criticism that the probation officer may have exceeded her mandate by suggesting that Mr. Beals minimized the severity of his drug and alcohol use. There is no evidence that Mr. Beals has a severe drug or alcohol problem, and there is evidence to the contrary.
[12] Ultimately, I do not think I can place too much weight on the PSR, either positive or negative. A PSR is prepared to assist the court in imposing sentence: Criminal Code s. 721(1). A negative PSR is not an aggravating factor, obviously, but a positive one can point to important mitigating factors. In this case, I simply think that I cannot rely on the PSR very much.
(c) Impact on the victim and the community
[13] So much has been said about the impact of illegal handguns in our city that it is almost banal to mention the toll of violence and destruction. At the risk of being banal, however, I will mention it again. An illegal handgun in the hands of someone who is not authorized to possess one represents the most pernicious kind of danger. Mr. Beals attempted to abandon this loaded weapon in a public place near a roadway and sidewalk. Anyone, including a curious child, could have picked it up and experimented with it if the police did not find it. The results could have been devastating. Indeed, the results of illegal weapons in the hands of outlaw criminals in our city has been devastating. One need only think of the shootings in prominent public places that have plagued this city in the last number of years. The Court is required to denounce the possession of these weapons, and severely punish those who possess and use them.
3. Legal Parameters
[14] The maximum penalty for this offence is ten years. There is no longer a mandatory minimum.
4. Positions of the Crown and Defense
[15] Crown Counsel, Ms. Battersby, suggests that a sentence of 3 years in the penitentiary is appropriate. Ms. Craig suggests that a sentence in the range of 18 months to two years less a day is appropriate.
5. Case Law
[16] Ms. Battersby, for the Crown, relies on a series of cases where a gun was found in a car or associated with a car.
[17] In R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, [2010] O.J. No. 4707 the offender was illegally in Canada, had a criminal record including 34 offences, and was on two weapons prohibitions. It was his third conviction for possession of a firearm. He was arrested on an immigration warrant. He had a loaded handgun down his pants. He was cooperative with the police, and there was no indication he was involved in criminal activity at the time, except for moving about in the community with a loaded handgun. The trial judge imposed a global sentence of six years. The Court of Appeal found that the sentence was demonstrably unfit and did not reflect the seriousness of the offences and the “incorrigibility” of the offender. The Court raised the sentence to 7 years, six months imprisonment (less credit for pre-trial custody) on the firearms offence, and a further consecutive sentence of one year on the firearms prohibition offence. Obviously the offender in that case was a serious recidivist, in contrast to Mr. Beals.
[18] Ms. Battersby also relies on R. v. Harutyunyan, 2012 ONCA 637, 2012 O.J. No. 4417, The offender was stopped by police while driving. He tried to run away. A loaded handgun fell out of his pants. He was convicted of various offences associated with possession of a loaded handgun, as well as obstruction of justice. The offender had no criminal record and did well while on bail. Benotto J. (as she then was) found that an appropriate sentence was 4 years: R. v. Harutyunyan, 2012 ONSC 58, [2012] O.J. No. 177. The Court of Appeal upheld the sentence.
[19] In R. v. Ellis, 2013 ONSC 3092, 2013 O.J. No. 2409 the offender was street racing with another vehicle. The police followed his car. He abandoned it in a driveway and tried to escape. The police found and arrested him with the keys to the vehicle in his pocket. The police then searched the vehicle. They found a loaded handgun. He was on a weapons prohibition at the time, having been convicted of an earlier handgun possession offence. He did well while on bail. He had a very supportive family, was heavily involved in his church, and was described as a good husband and father. My colleague K. Campbell J. described him as a mature recidivist. He imposed a sentence of six years for possession of the firearm, and an additional year for the breach of the weapons prohibition, less credit for pre-sentence custody and restrictive bail conditions. I note that Mr. Ellis, like the offender in the Court of Appeal’s decision in Brown, was also a serious recidivist. I also note with regard to the street racing that Sanderico Beals, not Landrell Beals, was driving the white Cadillac.
[20] Ms. Craig correctly points out that these cases, while factually similar in some ways, involved offenders who had serious criminal records, unlike Mr. Beals. Instead, she relies on a series of cases commencing with R. v. Prosser, 2014 ONSC 6466, [2014] O.J. No. 5291, 2014 CarswellOnt 15644. The police executed search warrants and found a loaded handgun and 81.78 grams of cocaine in Mr. Prosser’s bedroom. It turned out that the firearm was not capable of firing, unbeknownst to Mr. Prosser. After an unsuccessful application to exclude the evidence, Mr. Prosser was convicted on an agreed statement of facts. He was a first offender. The Crown sought 3-4 years in the penitentiary. The defence sought a conditional sentence, which was still available at the time the offences were committed. J. Wilson J. of this Court sentenced to Mr. Prosser to two years on the weapons offences, and six months consecutive on the drug offences.
[21] In R. v. Browne, 2014 ONSC 4217, 2014 CarswellOnt 9710, the accused lived with his grandmother. The police executed a search warrant and found a loaded handgun hidden in the grandmother’s room. The accused had had a difficult childhood and youth. He had a criminal record (including a conviction for possession of cocaine and a conviction for trafficking marijuana) but not for possession of a firearm. He was, however, on a weapons prohibition at the time of arrest. K. Campbell J. imposed a sentence of 3 years for possession of the firearm and six months consecutive for the breach of the weapons prohibition, less credit for pre-trial custody.
[22] Ms. Battersby argues that these cases are generally not on point. She argues that they are “search warrant” cases. The offenders did not take the weapons out in public, which is ordinarily a very aggravating circumstance.
[23] In R. v. Brown, 2013 ONSC 4230, 2013 CarswellOnt 3095, [2013] O.J. No. 3095 the offender was taken out of a car after police stopped it for highway traffic reasons. He was carrying a knife and a loaded revolver. The police also discovered 5.49 grams of cocaine in the back seat. After a trial, Mr. Brown was found guilty of offences associated with possession of the revolver, as well as possession of cocaine. He was a first offender. He had family support and a reasonably positive pre-sentence report. Garton J. sentenced him to a global sentence of three years (including one month concurrent on the possession of cocaine count), less credit for pre-trial custody. The presence of cocaine and the lack of the mitigating factor of a guilty plea make this case somewhat distinguishable.
[24] Both counsel pointed to the Ontario Court of Appeal’s decision in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401. As everyone now knows, the mandatory minimum of three years for an offence contrary to s. 95(1) of the Criminal Code was struck down as unconstitutional. Nur had no criminal record. He possessed the weapon at a community centre, which was obviously highly aggravating and dangerous. Doherty J.A., for the Court, noted that Mr. Nur could well have received a sentence of three years in the penitentiary even in the absence of a mandatory minimum.
[25] The Supreme Court of Canada has upheld that decision: R. v. Nur, 2014 SCC 15, [2015] S.C.J. No. 15. Chief Justice McLachlin, for the majority, said this at para. 82:
Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public". At this end of the range -- indeed for the vast majority of offences -- a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.
6. Mitigating and Aggravating Factors
[26] The aggravating factors in this case are very obvious. The main aggravating factor is the circumstance of the offence. Mr. Beals discarded a loaded handgun in a public place while attempting to evade the police. He created a situation of significant danger for himself, for the police, and for the public.
[27] There are important mitigating factors as well. Mr. Beals pleaded guilty. Pleading guilty is always an important mitigating factor since it demonstrates remorse and saves the state resources that would otherwise be used to try him. Mr. Beals has no record and is relatively youthful. He is in a relationship and enjoys community support. He has been gainfully employed, and I am confident that he can be again. He has performed community service hours. I am told that he has a good relationship with Ms. McLean’s children, and parents them. I take all of these factors into account
7. Principles of Sentencing
[28] In this case, the principles of general deterrence, denunciation, and specific deterrence are critical. The protection of the public must play the most important role. I do also pay attention to the principle of rehabilitation. Given Mr. Beals’s youth, rehabilitation is important, but it cannot outweigh the exemplary factors.
8. Ancillary Orders
[29] There will be a s. 109 order for 10 years, and a DNA order. Although possession of a loaded restricted firearm is a secondary designated offence, given the seriousness of the offence, the public manner in which the firearm was discarded, and the minimal intrusion on Mr. Beals’s privacy and security of the person, I believe it is appropriate.
9. Final Decision
[30] I have paid very close attention to the many mitigating factors, presented by Ms. Craig with her usual professionalism. With respect, however, it is hard to see how possession of a loaded prohibited firearm, even for a first offender who comes before the court with pro-social attributes, can attract anything less than a significant penitentiary sentence in the circumstances. It is important to note that the Supreme Court of Canada did not strike down the mandatory minimum because it is grossly disproportionate in all circumstances. That Court, and the Ontario Court of Appeal, have both recognized that a significant penitentiary sentence is appropriate for those offenders who fall at the “true crime” end of the spectrum. Mr. Beals did not make a mistake about the terms upon which he was able to have possession of a gun. This was no regulatory offence. This was not innocent possession. The possession of this weapon under these circumstances is closer the true crime end of the spectrum. There is certainly no evidence that Mr. Beals used the weapon in a way that would put him at the very end. There is no evidence he used the firearm in conjunction with drug trafficking or to facilitate some other criminal activity.
[31] That said, the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes: either to kill people, or to intimidate people – and the reason they are intimidating is because everyone knows about the first purpose. These weapons are extremely dangerous, especially when they are loaded and tossed away in a public place, as this one was. The crime of possessing one of these weapons is not a momentary lapse of judgment. It is not like participating in a bar fight that gets out of hand and causes serious injury. Possession of weapons like these usually requires more thought. We do not know exactly how Mr. Beals came into possession of this weapon, but we do know that he got rid of it in a manner that suggests he knew what he was doing. The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public.
[32] Accordingly, an exemplary sentence is regrettably necessary here, even for a first offender. In my view three years for the possession of a loaded firearm in public, tossed away where anyone can find it, is the appropriate punishment. Mr. Beals will receive credit for 10 days time served, which is fifteen days at 1.5:1. I understand that he has been on a very strict house arrest for some 18 months. Under the circumstances, I will credit him with a further 4 ½ months of pre-trial custody. I realize that this is a very generous interpretation of the principle in R. v. Downes (2006) O.R. (3d) 321, 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.). I justify it on the basis that while house arrest is obviously not jail, it is certainly a very onerous form of release for a very young person with no criminal record and no outstanding charges.
[33] Thus, Mr. Beals will serve a further 2 years, 7 months in custody.
R.F. Goldstein J.
Released: May 4, 2015
CITATION: R. v. Beals, 2015 ONSC 2911
COURT FILE NO.: CR-14-30000756-0000
DATE: 20150504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Appellant
– and –
Landrell Beals
Respondent
REASONS FOR JUDGMENT ON SENTENCE
R.F. Goldstein J.