ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-13664

DATE: 20151117

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAQUEAL MOLIN

M. Malleson, for the Crown

T. Morris, for the Defendant

HEARD: June 23, 2015

REASONS FOR sENTENCE

J.R. McCARTHY j.

Introduction

[1] Shaqueal Molin (the “Defendant”) is before me today for sentencing. On June 23, 2015, following a trial before a jury, the Defendant was found guilty of possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The facts essential to the jury’s finding of guilt were that on May 4, 2013, police executed a search warrant at 46 Spraggins Lane, Ajax (“the premises”) and located a loaded Remington pump-action sawed-off shotgun (“the firearm”) with a defaced serial number inside of a black Adidas gym bag. The gym bag was found beneath an interior stairwell approximately ten feet from the futon where the Defendant was staying. The Defendant was a temporary guest at the premises. A letter addressed to the Defendant was found inside a mesh pocket of the gym bag.

[3] The court heard submissions on sentencing on September 16, 2015. At that time, the Defendant was afforded an opportunity to address the court. I have taken into account the Defendant’s statement to the court, together with the Pre-Sentence Report dated September 11, 2015, and the Defendant’s criminal antecedents.

Positions of the Crown and Defence

[4] The Crown seeks a custodial sentence of three and one-half to four years. The Crown concedes that the Defendant was relatively young at the time of the offence (20 years old), that the Defendant did not breach any of his very light bail conditions, that he has not been the subject of any further criminal charges and that the Defendant conducted himself in a proper and respectful manner during the proceedings. However, the Defendant cannot benefit from having spared the court a trial.

[5] The Crown contends that there are serious aggravating factors for the court to consider:

1. The firearm was fully loaded, ready to fire and stored in a location accessible to the children living upstairs in the residence;
2. The serial number on the firearm was erased;
3. The firearm was prohibited rather than restricted;
4. There could be no lawful purpose for which to possess the firearm;
5. The Defendant’s criminal record for violence and robbery is only partly attenuated by the gap principle and the fact that his past offences form part of a youth record;
6. The court should find beyond a reasonable doubt that Defendant was involved in drug dealing. This is a natural and inescapable inference to draw based upon the evidence presented at trial.

[6] The Defendant argues that it is open to the court to craft an individualized sentence in these circumstances. Since the mandatory minimum sentence for this offence was struck down in R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, and R. v. Nur, 2015 SCC 15, 385 D.L.R. (4th) 1, the court has a great deal of discretion and a wide range of available sentencing options. The Defendant suggests that a reformatory sentence of 18 to 24 months is appropriate in these circumstances. The Defendant submits that the court faces a factual void in respect of the firearm. There is no evidence of how long the Defendant had the firearm in his possession, whether he had ammunition other than that found in the firearm itself, who might have defaced the firearm and whether it had ever been fired. The location in which the firearm was stored cannot be an aggravating factor; while the firearm was not buried, it was not in an easily accessible location. The court should infer that the location beneath the stairwell was likely not an area that the children would have frequented. Further, counsel for the defence submits that drugs should be entirely a non-factor. In spite of a thorough search of the premises by police, no drugs were found. There is insufficient proof beyond a reasonable doubt that the Defendant possessed any drugs on the day in question.

Analysis

[7] The purpose and principles of sentencing are set out at ss. 718, 718.1 and 718.2 of the Criminal Code.

[8] The Pre-Sentence Report informs the court about the Defendant. He is now engaged to be married and has a 16-month-old daughter. He has been accepted into a culinary arts program at Centennial College. His prospects for rehabilitation are excellent. His criminal antecedents are dated and unrelated to the present offence. He has only a youth record.

[9] The Defendant’s record includes convictions for robbery, theft from a person with violence, possession of property obtained by crime and failure to comply with a recognizance. The record dates from October of 2009, when the Defendant was 16 years old.

[10] There has been a wide range of sentences for the type of offence in question. In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, 385 D.L.R. (4th), the Ontario Court of Appeal struck down the mandatory minimum sentence of three years, found at s. 95(2)(a)(i) of the Criminal Code, as unconstitutional. Despite this finding, the court went on to conclude as follows, at para. 206:

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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite mitigating factors, could well have received a sentence of three years.

[11] In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, the Court of Appeal found that the accused, who was discovered with a loaded and cocked gun in his hand, was engaged in conduct that posed a serious and immediate risk to others. With no authority to possess the gun at any place or in any circumstances, his conduct fell squarely at the true crime end of the s. 95 spectrum. A sentence of two years less a day would have been appropriate, absent a mandatory minimum sentence.

[12] In R. v. Brown, 2013 ONSC 4230, 107 W.C.B. (2d) 515 [Brown], the accused was found in possession of a loaded restricted firearm while driving a motor vehicle to pick up his child from an elementary school. The accused was also found in possession of a quantity of cocaine, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Finally, the accused was found in possession of a knife. The court imposed a global sentence of three years in custody.

[13] I am not prepared to infer that the Defendant was in possession of any drugs at the time he was found to be in possession of the weapon. Possession of drugs by the Defendant was not a fact essential to the jury’s finding of guilt. The police did not find drugs on the Defendant’s person or at the premises. For sentencing purposes, the Crown must prove such a disputed and aggravating fact beyond a reasonable doubt, pursuant to ss. 724(3) of the Criminal Code. There was insufficient evidence at trial, and no evidence at the sentencing hearing, to support such a finding.

[14] I agree that the Defendant’s criminal antecedents are within the statutory access period; however, his record is dated and does not contain any weapons offences. There are no charges or convictions between the ages of 16 and 20. Some weight must be afforded to the fact that the Defendant was a high school student at the time of the previous offences.

[15] The present case is quite distinguishable from a situation where an individual’s possession of a firearm posed a serious and immediate risk to others. The weapon in question was not found on the Defendant’s person, nor was it located in a vehicle in which he was travelling.

[16] There is no doubt that Defendant is guilty of an offence that falls within the true crime range of weapons possession spectrum. The firearm in question was sawed-off, loaded and obviously ready for use inside of a residential home, where young children were residing. The weapon was not under lock and key. It would be naïve to suggest that the Defendant had no intention to make use of the weapon at some indeterminate time. Possession of a prohibited, loaded firearm does raise the possibility of imminent violence; indeed, it can serve no other purpose than one involving violence or intimidation. Still, I am unable to conclude that the firearm posed a serious and immediate threat to others. It was wrapped in a pair of jeans inside of a gym bag under a stairwell. There is no evidence that the children played in that area or that any items of interest to them were kept there. It was clearly meant to be hidden, although readily accessible. In my view, this distinguishes it from the more serious case of Brown, where the firearm was with the offender inside of a vehicle on his way to an elementary school. The offender in that case was also in possession of a knife and a quantity of cocaine. The present case also differs from Smickle, where the offender was found with a loaded and cocked gun in his hands.

[17] The conduct in this case deserves harsh denunciation. The sentence must attempt to deter the offender from further transgressions. A just and fit sentence must remind the Defendant of the responsibility he must take for his actions.

[18] However, I note that none of the aggravating factors set out in ss. 718.2 of the Criminal Code are present here. I also find that there is real potential for rehabilitation: the Defendant is a very young adult; his personal circumstances have changed since the offence; he has shown a willingness to obtain college-level training; he has not run afoul of the law since committing this offence; and I accept as sincere his statement that he does want this type of thing to happen again.

Decision

[19] Mr. Molin, please stand. I sentence you to two years in custody. I make the custodial sentence two years, not two years less a day. Counsel for the Defendant agreed that a penitentiary term would afford greater access to rehabilitation programs. In addition, I impose a two-year period of probation to follow the term of custody. During that two-year period, the following conditions shall apply:

• You shall keep the peace and be of good behaviour;

• You shall appear before the court when required;

• You shall report to a probation officer as required and in the manner directed by that officer;

• You shall maintain full-time employment and/or attend school full-time, unless you have permission from your probation officer;

• You shall abstain from the possession or consumption of drugs, except in accordance with a medical prescription;

• You shall reside at an address approved by your probation officer and notify the court or your probation officer in advance of any change in your address;

• You shall not be in the company of anyone known to be using or trafficking drugs; and,

• You shall not communicate directly or indirectly, by any means, with Jesse Beaton, either during your custodial sentence or your period of probation.

[20] There shall also be a weapons prohibition for life pursuant to s. 109(2) of the Criminal Code. Finally, the Defendant shall provide a DNA sample under s. 487.051(3) of the Criminal Code.

J.R. McCARTHY J.

Released: November 17, 2015

NOTE: As noted in court, on the record, this written ruling is to be considered the official version and takes precedent over the oral reasons read into the record. Any discrepancies between the oral and written versions, it is the official written ruling that is to be relied upon.