ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR8/14
DATE: 2015 10 27
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
DOUGLAS RUTLEDGE
Defendant
Robert Fetterly, for the Crown
Jeffery Fisher, for the Defendant
SUBMISSIONS: Oct. 14 2015
ORAL DECISION: Oct. 26 2015
REASONS RELEASED: Oct. 27 2015
REASONS ON SENTENCING
WEIN, j.
Overview
[1] Mr. Rutledge, for all his life, has been a hard-working farmer in Dufferin County, working farm and forest properties of 2000 acres, shared with his father. Now he finds himself mired in weapons convictions that arose, indirectly and in part, from allowing his grown son Tyler and stepson Billy to conduct their illegal activities out of his farmhouse.
[2] The issues of what sentence should now be imposed and in particular whether jail time is required mandates a consideration of the nature of his level of involvement in the offences.
The Facts
[3] There is strong evidence to suggest that Billy, along with Tyler, was running a drug trafficking trade out of the house. Rumours that Billy and Tyler were also involved with illegal handguns came to the attention of the police, and a search warrant was executed on the farmhouse on December 20, 2012. As it turned out Mr. Rutledge was also involved, in marijuana trafficking, as he acknowledged by way of an earlier plea of guilt.
[4] The police found large quantities of marijuana (in bags, presses and in the freezer), indicia of trafficking in both cocaine and marijuana, some three ounces of cocaine in Tyler’s bedroom, and three restricted or prohibited handguns in a safe in the upstairs master bedroom. Ammunition for those three guns was also found in that bedroom.
[5] Mr. Rutledge had over 20 long guns, rifles and shotguns, and these were found to be stored in or near to an unlocked gun cabinet, along with boxes of ammunition stored in a tidy case, but also unlocked. One long gun was found, unlocked and unloaded, in the kitchen.
[6] Mr. Rutledge was the sole occupant of the house at the time of the search.
[7] Tyler Rutledge pled guilty to possession for the purpose of trafficking in cocaine, and Mr. Rutledge pled guilty to possession of marijuana under three kilograms for the purpose of trafficking. He was given what was admitted by counsel to be an extremely lenient sentence, of a fine of $500 plus probation, on a joint submission by Crown and defence.
[8] Billy fled the jurisdiction and has not been located. Tyler, on probation after serving his sentence, has been subsequently charged with breach of probation, and his whereabouts are now also unknown to the police.
[9] In this trial concerning the weapons located in the house, Mr. Rutledge found himself charged with a total of 7 counts: possession of each of the three handguns, possession of the handguns together with readily accessible ammunition, careless storage of the long guns, and careless storage of ammunition. An additional count, of possession of one of the handguns, a Glock 17 9mm, with its serial number defaced, was dismissed following the jury trial. Verdicts of guilty were given on the additional six counts on June 30th, 2015.
[10] The three counts for possession of three individual handguns, Counts 2, 3 and 4, are subsumed within the first count, of possession of the handguns together with readily accessible ammunition. Accordingly, pursuant to the principles in R v Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524, these charges will be stayed. It remains to sentence Mr. Rutledge on Counts 1, 6 and 7.
(a) Circumstances of the Offence
[11] For the purposes of sentencing, it is clear from the acquittal on Count 5 relating to the defaced serial number on a Glock 17 handgun in the safe in the Indictment that the jury was not satisfied beyond a reasonable doubt that Mr. Rutledge had seen the hand guns. The Crown put forward a strong case that he was at a minimum willfully blind to the existence of the handguns in the safe. It is clear that he knew that Billy had brought the safe into the house, and gave him permission to put it upstairs. It is clear from the verdict that he also must have seen the bullets for the handguns in what was technically his bedroom, although he said he seldom used it and normally slept on a couch in the living room on the main floor.
[12] There was a solid basis for finding willful blindness with respect to the guns in the safe. Mr. Rutledge acknowledged in his evidence that he knew there was some problem with the safe, and had intended to ask Billy about it but never got around to it because Billy was always in the presence of other people. He acknowledged that he thought there was possibly stolen property or drugs in the safe, and that he had previously seen Billy with a realistic-looking handgun that turned out to be a starter pistol. For the purposes of sentencing, it is appropriate to sentence him on the basis that he did not see or handle the guns, but knew or strongly suspected that Billy had guns in the safe, but preferred not to have actual knowledge. There is insufficient evidence in my view to say beyond a doubt that he had direct knowledge of the guns, so the sentencing will proceed on the basis that he was wilfully blind to the reality that there were guns in the safe.
[13] With respect to the careless storages charges, I accept that Mr. Rutledge, living on an isolated farm property and frequently using his long guns for rifle practice or shooting coyotes and other predators, or for cleaning them prior to sale and exchange of them at gun shows, had simply become excessively careless about the proper way to store them. Nonetheless, it is clear that he had allowed his home to be used by a number of young people, friends of Billy and Tyler, who sometimes stayed over and would have had easy access to the potentially improperly stored long guns and ammunition, for example if they had come home that night.
(b) Circumstances of the Offender
[14] Mr. Rutledge has already been sentenced for possession for the purpose of trafficking in marijuana. He clearly had lost control over the use of his home by his son and step-son for other illegal purposes: he thought Billy was storing illegal ATVs, snowmobiles and cars on the property, and I find he must have known of the cocaine use in his house, from the second scale with cocaine powder on it in the kitchen, the cocaine bowls and spoons sitting out in Tyler’s bedroom, from his suspicions of Billy, and from the activities in the house.
[15] Anyone who had seen and heard Mr. Rutledge during the trial would conclude that he is a very hard-working, straight-forward, and apparently gentle person, who perhaps has had limited financial advantages in life, but the advantage of living in a beautiful area of the country, and working on the land and with animals.
[16] After the verdicts were given, the defence indicated that it would file personalized material on sentencing in preference to having a pre-sentence report prepared by the usual authorities. The material ultimately filed by the defence is sparse. It consists of a letter from Mr. Rutledge’s father’s doctor certifying that “due to Clarence’s current health issues and age, he is unable to increase his farming workload for the foreseeable future.”
[17] As well, the defence orally submitted, through counsel, a brief summary of Mr. Rutledge’s personal circumstances. He is 56 years of age and in good health. He has lived on the family farm for most of his life. The family farm has been owned in the Rutledge family for over 100 years. Mr. Rutledge stopped his education in Grade 10, to work full time on the farm, tending to racehorses and cattle. At age 19 he obtained outside employment, having a range of jobs including construction and installation of HVAC systems. He continued to work on the farm to help out.
[18] He has two children, an adult son who resides up north, and Tyler, who was born in February of 1993. Mr. Rutledge divorced Tyler’s mother when Tyler was 2. For the first few years, Mr. Rutledge had weekend access to Tyler, but often took care of him for longer periods because his mother had alcohol problems. He obtained custody of Tyler when Tyler was in kindergarten, and in 1997 he moved back to the farm and began to build the house where the offences occurred. At times his stepson Billy also lived with them. Tyler had moved out from under his care for a period of time because he got in trouble when he was in high school, and he could not live with his father because his father could not be a surety. Billy also was arrested in Orangeville and Mr. Rutledge sought to be a surety but was rejected because he was not, strictly speaking, a relative.
[19] Mr. Rutledge continued to farm and was involved in the collection and sale of shotguns. By 2012, while the basic structure was finished, the plumbing, interior finishes, and some of the exterior finishes were still a work in progress
[20] Mr. Rutledge was an easy-going parent: when Tyler returned in 2010 he let him and his girlfriend Cassie live in the upstairs two bedrooms, and later when Tyler and Billy returned in the late summer of 2012, he let them more or less have the run of the house. By December 2012, Tyler and Billy, frequently at the time preceding the search, were in and out of the house.
[21] Mr. Rutledge has a criminal record for various alcohol and driving related offences, including three convictions for over 80 or impaired driving in 1991, 1995, and 2010. He also has convictions for driving while disqualified or suspended in 1998 and 2012. He has served three short periods of jail time in the past.
[22] His sentence on the related offence of possession for the purpose of trafficking under three kilograms of marijuana resulted in a fine of $500 and one year probation as well as a Section 109 prohibition for ten years. That was termed a “modest” sentence and was based on joint submissions for pleas of guilty made by Mr. Rutledge and his son Tyler at the same hearing.
(c) Pre-trial Release Conditions
[23] Mr. Rutledge was arrested on December 21, 2012 and was initially released on December 24th, 2013 on a recognizance requiring that he reside in Shelburne with his sister. He was at first prohibited from attending at the farm and from possessing any weapons or ammunition. He was required to surrender any additional firearms that had not been seized. Restrictions were relatively lenient, but required the presence of a surety for non-specified absences from the home: he was required to remain at his residence except for employment purposes, medical emergencies, court-related matters, counsel matters, or in the presence of one of his sureties, who were his sister and father. He was also required to seek assessment for alcohol abuse. In May of 2013 the residency requirement was amended to permit him to reside at his father’s house on the adjacent farm, although he was prohibited from residing at or attending the house where the warrant was executed. Accordingly, he would be permitted to continue to farm the joint family properties. These terms have continued for almost two and a half years, to the present time.
[24] It is clear that where credit is requested on the basis of stringent bail conditions it is incumbent on the offender to provide information as to the impact of the pretrial conditions. Obviously in this case the restriction on weapons and firearms has restricted Mr. Rutledge’s side business of trading and selling rifles at gun shows. It has not strictly speaking prevented him from continuing in his farming business, because the house in which he resides with his father is on the adjacent and contiguous farm property and he has been permitted to continue to farm their roughly 2000 acres, with a total of about 500 head of cattle, sheep and horses. However, as he indicated at trial, he has been unable to protect his sheep from the predations of coyotes.
(c) Impact on the Victim and/or Community
[25] The potential for serious harm through the use of restricted and prohibited handguns illegally held is obvious. There is a well-known connection between drug trafficking and the use of handguns. In possessing these weapons, even assuming that Billy and/or Tyler were the probable users of them, Mr. Rutledge allowed himself and his home to be part of a dangerous and socially undesirable milieu. Ammunition for these handguns was stored in the same room, and Mr. Rutledge clearly had lost control over the activities of Tyler and Billie, even though he admitted that he was well aware that he should have been questioning them or getting Billy to move out.
[26] With respect to the careless storage charges, there is no inherent connection to the dangers of drug dealing but the potential for harm remains, beyond the dangers of carelessness, in that drugs were being stored and dealt with in that house, and there were many people coming and going.
Legal Parameters and Counsel’s Positions on Sentencing:
[27] The decision of the Supreme Court of Canada in R v Nur, 2015 SCC 15, [2015] SCJ No. 15, clarified that the mandatory minimum sentence of three years in Section 95 offences is unconstitutional. There is no dispute that a conditional sentence is statutorily available on these offences and could be imposed as an alternative to or in addition to a custodial sentence.
[28] The defence argued that the primary blame for the handgun offences should clearly be on the step-son Billy, and that since the unsafe storage charges were closer to regulatory offences, a conditional sentence was appropriate in these unique circumstances, including Mr. Rutledge’s minimal role, the fact the guns were in an unpopulated area, and the length of time on house arrest.
[29] The Crown submitted that the appropriate range in all of the circumstances of this case would be between 21 months and two years, plus two years probation on Count 1, and an additional three months on the Careless Storage charges for a total of between 24 and 27 months. It was acknowledged that the terms of house arrest in the particular circumstances of this case should result in some credit, because of the restrictions in those terms, and it was suggested that a credit of five months, and in any event no longer than eight months should be given. That would bring the range to a reformatory term of 16 to 19 months. The Crown also recommended that a term of probation might be appropriate.
[30] The defence submitted that these were extraordinary circumstances, that the primary responsibility for the more serious offence of possession of the handguns lay at the feet of his stepson Billy, and that a conditional sentence was justified in all of the circumstances of this case. The Crown argued that any sentence should be served in custody.
[31] Despite his counsel’s suggestion that in effect Mr. Rutledge should be sentenced as a parent who has momentarily lost control of a young adult in his home, and unexpectedly discovered an illegal gun or other illegal activity, the facts simply do not permit that lenient view. Over a period of time, while he himself was trafficking in marijuana out of the house, he permitted drug use in the house, with young people coming and going. He permitted his house to be a safe haven for the activities that he knew or suspected were going, as he admitted to a large extent in his own evidence, and as the jury found. He thought Billy was bringing stolen vehicles on to the property, he admitted to allowing Billy to bring in the safe and place it in his own bedroom, and he himself burned the box.
[32] Mr. Rutledge was not primarily responsible for the handguns, by any means, but his role as a facilitator cannot be ignored, on the evidence.
Case Law:
[33] Both Crown and defence supplied casebooks providing useful support for the basic principles they relied on: the continuing need for significant sentences in cases involving possession of prohibited firearms, notwithstanding the unconstitutionality of the mandatory minimum sentences, consideration of sentencing in the context of related drug offenses, consideration of conditional sentences in the context of weapons offenses, including where the offender was not the owner or prospective user of the gun, and the impact of stringent terms of pretrial house arrest on the length of sentence.
Seriousness of the Offence, Particularly in the Drug Context
[34] In R v Nur 2013, ONCA 677 (C.A.) affirming R v Nur, 2015 SCC 15, [2015] SCJ No. 15 the case striking down the mandatory minimum sentences for offences under Section 95 of the Criminal Code, the court nonetheless upheld the penitentiary sentence imposed at trial, given the seriousness of the offences, noting that most cases within the range of conduct covered by Section 95 may well merit a sentence of three years or more. However, the Court acknowledged that a three-year term for a person who has essentially committed a licensing infraction would be out of sync with the principles set out in the Criminal Code and would amount to a “cavernous disconnect” between the sentence and the offense. The crown stressed that in this case, as an enabler of the storage of guns, Mr. Rutledge participated in conduct that was a significant risk to society: this offence was not akin to a licensing infraction.
[35] In R v Delchev, 2014 ONCA 448 and cases referred to in it, the court addresses the “toxic combination” of cases involving guns and drugs. A sentence of 3 ½ years on 16 counts of weapons and drug offenses was upheld by the Court of Appeal, noting that a higher sentence could have been imposed. In reviewing the cases (referred to at paras 22 – 28) it was noted that the Court of Appeal has consistently indicated that “the combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing”.
[36] Although the defense has strenuously argued that Mr. Rutledge’s limited involvement with the hand guns cannot be associated with drugs, a realistic view of the evidence in the jury’s finding cannot ignore the reality of the drug use and trafficking in the house.
[37] These principles were reiterated in the trial decision in R v Boussoulas, 2015 ONSC 1536, [2015] OJ No. 1104 (Sup. Ct) where a sentence of 21 months plus 2 years probation was given. The defense emphasized that the context in Boussoulas (and the cases referred to in para 22 to 23) of having a loaded gun in a highly populated area heightened the aspect of risk. I agree that in this case the immediate risk, at least inadvertent or collateral harm on the street, was lessened by the isolation of the property and the fact that there is no evidence of where Billy might have used the guns: but this is not a case of no risk or a mere regulatory offense.
[38] In R v Mohammed, [2008] OJ No. 5492, the court assessed the situation of the co-accused Mr. Ngo, in a case where guns were found in a locked vehicle, unloaded, with no bullets in the vehicle and where the accused were in joint possession with two others for less than half an hour. Even for a young accused with no criminal record who was employed and supporting children, a sentence of two years in the penitentiary was imposed.
[39] On behalf of the defense, it was stressed that most of the cases referred to involved the possession of illegal handguns in the Greater Toronto Area, where the risk was deemed to be greater because of a “plague” of guns and gun-related violence on the streets of Toronto. In R v Allen, [2006] O.J. No.4597 for example a sentence of 21 months was given on a plea of guilty on one count of possession of a restricted firearm with ammunition where the accused was found in possession of while driving on the busy Toronto street in daylight.
[40] In any event Mr. Rutledge’s involvement was not in handling the guns, it was in making it easy for Billy to store the guns in a place he had ready access to it, clearly a lesser and more peripheral role.
Conditional Sentence Caselaw:
[41] The cases referred to by Counsel did not provide real support for the conditional sentence requested. All were patently distinguishable.
[42] In R v Nuttley, 2013 ONCJ 727 a guilty plea to various offenses including possession of a prohibited firearm with readily accessible ammunition and careless storage of firearms resulted in a conditional sentence of 12 months plus probation for three years, but credit of 11 months was given for pretrial custody.
[43] In R v Smickle, 2013 ONCA 678, [2013] OJ No. 5070, the offender was found, during a dynamic search, to be in possession of a fully loaded semi-automatic handgun. The court held that a conditional sentence, of one year reduced to five months to take into account pre-sentence incarceration and strict bail terms, was manifestly inadequate, even absent the mandatory minimum. The Court did note that the offender was “not off by himself in some isolated forest playing with a fully loaded cocked handgun. He was in someone else’s apartment located in a high-rise apartment building.” He was a young first offender said to be posing with the loaded gun for a photograph. The accidental discharge of the gun put the police and others at risk in the apartment. The Court suggested that a sentence approaching maximum reformatory was appropriate.
[44] In R v S.C., [2006] O.J. No.3893, the Court of Appeal reviewed a conditional sentence imposed, after the accused had served six months of pretrial custody (credited at twelve months) and pled guilty to possession of a restricted weapon and related offences. The Court of Appeal held that the sentence should have been two years less a day, but did not reincarcerate the offender as he had been on restrictive bail pending appeal and had completed seven months of the conditional sentence.
[45] In R v Carbone, [2012] OJ No.176 (OCJ), illegal weapons, two hand guns and ammunition, were bought and stored improperly, in offices, for defensive purposes. Even where the accused had exemplary backgrounds and guilty pleas were entered on summary conviction procedure, a custodial sentence of 60 days intermittent was deemed necessary, and the court rejected suggestions that a conditional or suspended sentence could be appropriate.
[46] These cases suggest that even with a guilty plea, a lesser role, no prior record, or other mitigating factors not present here, a custodial sentence is still appropriate.
Credit for Stringent Pretrial House Arrest Terms
[47] The defence argues that credit for pre-sentence bail conditions should be given because of the length of time that Mr. Rutledge has spent under house arrest. House arrest has been identified as a form of punishment in a conditional sentence context. Courts have come to consider time spent under stringent bail conditions, particularly including house arrest, as a mitigating factor to be considered with other factors, although no specific formula is to be applied to the length of time or specific conditions imposed. “Particularly stringent bail conditions can have a mitigating effect on sentence”: R v Spencer (2004), 2004 5550 (ON CA), 186 CCC 3d 181 (ONCA) at para. 43.
[48] In this case, as the Crown acknowledges, lengthy pre-sentence bail conditions including house arrest, does require consideration in determining the length of sentence.
[49] In R v Downes, 2006 3957 (ON CA), [2006] OJ No. 555 (ONCA) the Court of Appeal noted that some of the same considerations justifying enhanced credit for presentence custody will also apply to an offender who has spent a long time under house arrest with stringent conditions: it was noted that house arrest as a term of conditional sentence is considered to be a form of punishment: see R v Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (SCC) at para 103.
[50] The court recommended that credit for pretrial bail conditions be approach with flexibility: time on stringent presentence bail, especially house arrest, is a relevant mitigating factor. The time spent under house arrest must be considered in determining the length of sentence, and failure to do so would be an error in principle. However there is no formula to be applied and the amount of credit is within the discretion of the trial judge, depending on factors including the length of time, stringency of conditions, and impact on liberty. The offender has an onus to provide information as to the impact of the condition: para. 37.
[51] In this case, as in Downes, there was a lengthy period of house arrest, with a stringent condition that he leave the house only with his surety, even for work. Mr. Rutledge clearly was able to continue his work on the farm for most of the pretrial term. He has not provided any specific information concerning any interference with work or other aspects of his life, except for the suggestion that his social life with his new girlfriend was restricted, since she is now living in the house he is prohibited from entering, and a surety would have to accompany them off the property. The court in Downes gave five months credit for 18 months spent under house arrest.
[52] However, unlike the case in Downes, Mr. Rutledge’s bail conditions permitted the opportunity to work and pursue rehabilitative and treatment options without dependence on a surety, although his social life was undoubtedly curtailed.
Findings of Fact
[53] With respect to the careless storage charges in Count 6 and 7, the most significant issue is whether or not this was a single incident of careless storage, resulting in the gun cabinet and ammunition box being somewhat inadvertently left open because Mr. Rutledge fell asleep after cleaning his newly acquired antique gun. The alternative explanation is that Mr. Rutledge had the gun out to protect his drugs and that this was a habitual scenario.
[54] Despite the presence of other guns in the house, for example the disassembled starter pistol and the realistic looking gun in Tyler’s bedroom, and the incident described by Mr. Rutledge where Billy and Tyler were examining a handgun that Mr. Rutledge looked at to satisfy himself it was only a starters pistol, I am prepared to accept that Mr. Rutledge himself normally stored the long guns properly. I do not necessarily accept his explanation of the instructions he says he was given when he was trained years ago: they were improbable at best. His descriptions of target shooting in the yard and shooting coyotes would suggest that there might have been other occasions of departure from the regulations.
[55] However I am satisfied from his evidence and from the overall neatness of the gun cabinet and the ammunition for the long guns, that normally the long guns were stored properly in the safe and ammunition in the lock box, or with respect to his girlfriend’s guns, in locking cases. I accept his evidence that when others were around the gun cabinet and ammunition were normally kept locked.
[56] This is a significant mitigating factor with respect to those charges.
[57] The level of culpability with respect to the handgun charges is different. The jury clearly accepted that even if direct knowledge was not proved, Mr. Rutledge was aware of or strongly suspected – to the point he was wilfully blind to the fact – that Billy was storing handguns in the safe.
[58] At least in the weeks preceding the search, all indicia pointed to the fact that Billy and perhaps Tyler were involved in guns and drugs and perhaps other illegal activities perhaps involving stolen vehicles as Mr. Rutledge clearly suspected. There were marijuana plants growing in the house, there was drug-use paraphernalia throughout the house, the second scale with white powder in the kitchen, and Billy and Tyler were handling a realistic looking gun.
[59] Mr. Rutledge was an enabler, and his own participation through selling marijuana cannot be ignored. He was more than just a parent who had momentarily lost control, or a short-term co-possessor of a gun in transit, as in some of the cases. He was a facilitator whose permission to use the property for these activities, including in particular, his permission to allow the storage of the handguns, sanctified the risk, maintaining the pending danger against which the legislation is directed.
Mitigating and Aggravating Factors
[60] In summary, there are a number of mitigating factors in this case:
the lack of any related record;
the length of time that Mr. Rutledge has been on somewhat restrictive pretrial release;
the fact that the long guns were obtained for primary purposes of animal control, target shooting, and a business;
the fact that the long guns were locked up safely if others were in the house, or if he was away from the house;
the family’s need for Mr. Rutledge’s continuing involvement on the farm;
Mr. Rutledge’s limited role with respect to the handguns;
the overall favourable prospects for rehabilitation.
[61] While there was no plea of guilt, this is simply the absence of a mitigating factor seen in some of the cases. I note that there were viable issues assessed at trial, including knowledge of the guns in the safe.
[62] The most significant aggravating feature of this case relates to the handguns. The defense has argued that there is no connection between the drugs and the handguns, so the risk emphasized in many of the cases is not present here. I cannot agree. As noted above, while not directly involved in Billy and Tyler’s activities, Mr. Rutledge was a facilitator. In finding wilful blindness relating to the guns in the safe, the jury must have taken into account the other indicia in the house involving guns and drugs. As well, ammunition fitting all three guns, and shoulder holsters, were stored in his bedroom. This cannot be ignored in sentencing.
Reasons:
[63] Count 1(Handguns): In all of these circumstances, I accept that a reformatory term is adequate to meet the principles of denunciation and deterrence. A sentence of 18 months in the reformatory, including consideration of the brief period of custody on arrest, is the least appropriate sentence in these circumstances. I would reduce this by six months on account of the lengthy period of time served on house arrest with moderate but nonetheless somewhat restrictive terms. The resulting sentence is one of 12 months in the reformatory.
[64] The defense vigorously argued that any sentence of two years or less can properly be served conditionally under continuing house arrest. The technical parameters of the provisions governing consideration of conditional sentences have been met. However, this is not a case where a sentence to be served conditionally can properly be imposed, given the risk to the public inherent in Mr. Rutledge’s actions in harbouring Billy and his guns. As well, special mitigating factors such as a plea of guilty, youth, non-involvement in other concurrent offences, and lack of any criminal record are not present here.
[65] The defense raised a sympathetic argument relating to Mr. Rutledge’s family farm and the need for his presence to continue to assist his father with the work attendant on 500 head of sheep, cattle and horses. I have already considered this aspect in determining the length of sentence to be imposed.
[66] The court is not unmindful of the burden that will fall on the family, including in particular his aging father. Such burdens, even as acutely particularized in this case, often fall on friends and family of an accused who is sent to jail. There is a loss of income, loss of personal support, and loss of family help. Family and friends suffer, and have to fill in the gap left by the absence of a convicted person. In this case Mr. Rutledge’s work will have to be picked up by hired help and/or community support for the duration of the sentence he spends in custody.
[67] For reasons of deterrence, both specific and general, and denunciation, the sentence must be served in jail, in a provincial reformatory. Probation for two years will follow, with terms.
[68] As an aside, I would note that had Counts 2, 3, and 4 relating to the individual handguns not been stayed, the sentence on each of those counts would have also been 12 months to be served in the reformatory, concurrent to the above sentence and concurrent to each other.
[69] Counts 6 and 7 (Long guns): The Crown has asked for sentence of three months consecutive for the careless storage charges. Circumstances of the case, in which the use of the long guns was not proven to be associated with the other drug and weapon activities of the house, make it appropriate that there be a short sentence, of three months.
[70] Accepting the fact that this was not a habitual circumstance, and on the basis that normally Mr. Rutledge – notwithstanding his marijuana trafficking business – kept these guns safely stored, these counts are appropriately viewed as close to regulatory in nature.
[71] Normally I would make this a consecutive sentence, leaving aside the totality principle. However, in the context of the sentence imposed today on the handgun offences, and having regard to the totality principle, the sentence imposed for Counts 6 and 7 is one of three months concurrent on each charge, also concurrent to the sentence of 12 months on Count 1, for a total sentence in the reformatory of 12 months, to be followed by two years probation.
[72] Terms of probation will include, in addition to the statutory terms:
report to a probation officer within three days of release from custody, and thereafter as directed;
not to be in contact directly or indirectly with Billy Cousins except in presence of Clarence or in court;
not be in possession of any weapons, firearms or ammunition;
abide by any recommendations for treatment or counselling made by his probation officer.
Ancillary Orders:
[73] S.109 Criminal Code: An order prohibiting the possession of firearms, weapons, and ammunition is clearly appropriate in the circumstances of each of these offences. Mr. Rutledge is already prohibited under section 109 as a result of the conviction on possession for the purpose of trafficking previously imposed. An order for prohibition for a ten year period, to run from the conclusion of incarceration in this case, is also made.
[74] Forfeiture: This is an appropriate case for the forfeiture of all handguns, rifles, and long guns and ammunition seized, with the exception of the six long guns in locked cases found outside the gun cabinet. The Crown does not dispute that these were locked at the time they were seized and that they were owned by Mr. Rutledge’s friend Kim Deer. These are to be identified by Mr. Rutledge, from the police photographs if possible, and returned to the owner by the police. A list of remaining weapons and ammunition to be forfeited and held as appropriate pending further cases will be agreed to by Crown and defence and made Exhibit 6.
[75] DNA: It is agreed that an order pursuant to section 487.051[3] of the Criminal Code, in Form 5.04, for the taking of samples of bodily substances for the purposes of forensic DNA analysis, is mandated.
[76] Victim Surcharge: This requirement is not in this case disputed in its application or quantum. It is ordered that the minimum mandatory amount of $200 on each count, totalling $600, be paid by Mr. Rutledge within six months of his release from custody.
Endorsement:
[77] The record has been endorsed as follows: Count 1: 12 months in reformatory plus two years probation on terms.
[78] Counts 2, 3, and 4: stayed on Kienapple principle, (sentence on each count would have been 12 months in reformatory concurrent and concurrent to Count 1 plus 2 years probation on terms).
[79] Count 5: acquittal, based on jury finding of not guilty
[80] Counts 6 and 7: three months on each count concurrent to each other, and concurrent to sentence in Count 1.
[81] Total sentence: 12 months in reformatory plus two years probation.
[82] Section 109 order for 10 years, order for taking of bodily samples for DNA analysis, order for forfeiture of weapons and ammunition with exceptions, victim surcharge $600.
Wein J.
Released: October 27 2015
COURT FILE NO.: CR8/14
DATE: 2015 10 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
DOUGLAS RUTLEDGE
REASONS ON SENTENCING
WEIN, J.
Released: October 27, 2015