CITATION: R. v. McKenzie, 2016 ONSC 5025

COURT FILE NO.: CR-731/13

DATE: 20160808

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

CHRIS MCKENZIE

Kene Canton, for the Crown

Nathan Gorham, for the accused

HEARD: June 8, 2016

K.L. Campbell J.:

Reasons for Sentence

A. Introduction

[1] The accused, Chris McKenzie, has been found guilty of three offences, all flowing from his unlawful possession of a prohibited firearm, namely, a Hi-Point 9 mm. handgun, and ammunition. More particularly, the accused has been found guilty of: (1) the unlawful possession of a “prohibited firearm with readily accessible ammunition” while not the holder of a license or authorization, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46; (2) the unlawful possession of a firearm without being the holder of the necessary license or registration certificate, contrary to s. 91(1) of the Criminal Code; and (3) possession of a prohibited firearm while he was prohibited from doing so by court order, contrary to s. 117.01(1) of the Criminal Code. All three offences were committed in Toronto on or about April 29, 2012. It was on that date that officers with the Toronto Police Service (TPS) arrested the accused and executed a telewarrant at his apartment premises on the seventh floor of an apartment building located at 335 Driftwood Avenue in Toronto and discovered his firearm and ammunition.

[2] The Crown argued that the accused should be given a global sentence of 3½ years imprisonment, less the appropriate credit for his pre-sentence custody and restrictive bail conditions. Defence counsel argued that the accused should be given credit for having already served the equivalent of approximately one year in custody. Further, defence counsel argued that once this credit is afforded, the accused should be given a non-custodial, probationary sentence. Alternatively, defence counsel argued that, with this credit, the accused is eligible for, and should receive, a conditional sentence of two years less a day and a period of probation. The Crown is opposed to the imposition of a conditional sentence on the basis that it will not achieve the important goals of sentencing, especially in light of the gravity of the offences and the criminal record of the accused. Indeed, the Crown argued that the sentence that should be imposed upon the accused is beyond the range when a conditional sentence would be legally available.

B. The Nature of the Offences

[3] As I have already indicated, on April 29, 2012, the police executed a telewarrant at the apartment where the accused lived with his family. In a dresser drawer in a bedroom that Mr. McKenzie admittedly shared with his common law spouse, the police discovered, on top of some men’s underwear, a 9 mm. Hi-Point C9 firearm. Right next to this handgun was a magazine for the firearm loaded with seven rounds of 9 mm. ammunition.

[4] In the same dresser drawer, and on top of the dresser, the police found various paperwork and official government documents, such as a Birth Certificate and Driver’s License, in the name of Christopher McKenzie. They also found other documents associated with the accused and his business affairs.

[5] While the police also discovered some documents in the name of his spouse, Mr. McKenzie has admitted that the firearm and ammunition did not belong to his spouse. Mr. McKenzie personally offered no explanation for his unlawful possession of this dangerous firearm, and its ammunition – not in his affidavit filed on sentencing, nor in his brief oral statement at the conclusion of the sentencing hearing. However, others have speculated that he may have had it for protective purposes.

[6] At the time of his possession of this loaded firearm, the accused did not have the requisite license, authorization or registration certificate which would have permitted him to lawfully possess such a firearm. Indeed, at the time he possessed this loaded firearm, the accused was subject to a court order strictly prohibiting him from the possession of any such firearm.

C. Personal Circumstances of the Accused

[7] The accused was born on April 2, 1983, and is currently 33 years of age. He still enjoys the support of his family. He has been living with his common law spouse for the past 14 years. They have three children. The accused is “a good father and great provider” for his family.

[8] For the past seven years, the accused has owned and operated a roofing company called “Roof Smart.” The roofing business is somewhat seasonal, but the accused usually has approximately three employees during the spring, summer and fall seasons, and he earns in the vicinity of $45,000 per year. He works hard in the roofing business, and this provides structure and stability in his life. His wife cares for their young children at home, and is in receipt of a government “baby bonus” of approximately $1,400 per month. The accused is the primary income-earner in the home, and without his income, there will likely be financial difficulties for their family, as they have only some modest savings.

[9] As outlined fully in the Pre-Sentence Report, the accused has not had an easy life, and was not afforded many opportunities as a child. He largely grew up without a father. His father was physically abusive toward his mother and she left him when the accused was but eight years of age. Mr. McKenzie and his father had virtually no contact after that. Subsequently, when his mother began a new relationship, things did not improve for Mr. McKenzie. His step-father was controlling, demanding, and their family life was dysfunctional and “fraught with abuse and neglect.” Mr. McKenzie’s mother was an alcoholic and suffered from depression, and his step-father was physically abusive toward her. She was ill-equipped to care for the accused (and his step-sister) and Mr. McKenzie left home at a young age, and began to experience problems with the law as a young person, residing in a youth facility for a time. His mother died in 2012 at the age of only 56.

[10] Mr. McKenzie has a grade 9 education. He left school in grade 10, at the age of 15, when he felt bullied and was subjected to racial slurs from other students. He fell into the “wrong crowd” and began to use drugs and alcohol at an early age. Alcohol was easily available to the accused, through his mother’s alcoholism, and he soon began drinking daily as a teenager. He also smoked marihuana. While the accused reports having stopped smoking drugs approximately a year ago, he continues to consume alcohol on a daily basis, often to excess, and he admits that his drinking poses a problem for his family life. He wants to address the problem, and is now interested in attending a program for alcoholics.

[11] The accused has a criminal record that includes convictions, through the years 2004 to 2007, for the offences of mischief under $5,000, failing to comply with a recognizance, two counts of possession of property obtained by crime, trafficking in a Schedule II substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, chap. 19, and failing to comply with a probation order. By way of sentencing dispositions, the accused has been fined, placed on probationary terms, has served a 60 day conditional sentence, and has served an effective jail term of more than four months (once the time for pre-sentence custody is included). While Mr. McKenzie knows some “gang members” he is not himself a member of any gang, and has not had any gang involvement.

[12] According to the author of the Pre-Sentence Report, Mr. McKenzie is described by others as “hard-working, dedicated, reliable and self-motivated.” To his family members, he is a very responsible and kind person and a good father who provides well for his family.

[13] Mr. McKenzie’s younger half-sister, Ms. McNab-Scott, a 22 year-old university student, testified at the sentencing hearing that the accused grew up with parents that were not “safe” and he always viewed himself as the “protector,” and that this is part of his identity. While not condoning his choice to possess a loaded firearm, Ms. McNab-Scott personally saw that act as another attempt by Mr. McKenzie to ensure that he could always protect his family, akin to locking the doors to his apartment and his automobile, which would provide him with the peace of mind to sleep at night without fear.

D. The Rule Against Multiple Convictions

[14] The rule against multiple convictions for the same crimes prevents the accused from being convicted of the offence of the possession of a firearm without being the holder of a licence under which he may lawfully possess it, contrary to s. 91(1) of the Criminal Code. The very similar offence created by s. 95(1) of the Code arose from the same factual transaction, and is clearly the more serious offence, as indicated by its statutory mandatory minimum sentence (which has been declared unconstitutional) and its greater maximum sentence. The finding of guilt in relation to count two of the indictment will, accordingly, be stayed. See R. v. Naples, 2009 BCCA 141, 268 B.C.A.C. 233, at paras. 2-4; R. v. Vidal, 2009 BCSC 1095, [2009] B.C.J. No. 1602, at paras. 1 and 10; R. v. Duhamel, 2013 ONSC 1340, 1 C.R. (7th) 200, at paras. 12 and 52; R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409, at paras. 12-14, affirmed, 2016 ONCA 598; R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104, at paras. 13-15; R. v. Slack, 2015 ONCA 94, [2015] O.J. No. 649, at para. 1. The accused will, however, be convicted of the other two charges of which he has been found guilty.

E. The Governing Sentencing Principles

[15] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives, namely: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[16] Further, according to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[17] As required by s. 718.2 of the Code, in imposing sentence, the court must also take into account a number of principles including: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

F. The Aggravating and Mitigating Circumstances of this Case

[18] The aggravating circumstances of this case include the following factors:

• The firearm found in the possession of the accused was fully loaded, in that, right next to the firearm, was its magazine loaded with seven bullets. The magazine could be pushed into the firearm quickly, and it could be ready to fire in a matter of seconds. Such firearms are easily concealed and transported and are inherently dangerous weapons capable of quickly causing grievous bodily harm and death. They are a danger to society.

• Mr. McKenzie possessed the loaded firearm in direct violation of a court order prohibiting him from the possession of any such weapon.

• The firearm was carelessly and dangerously stored on top of some clothing in a bedroom dresser. It created a dangerous situation for the others living in the residence, including Mr. McKenzie’s young children.

• While the accused filed an affidavit on the sentencing hearing in this case, and provided a short oral statement at the conclusion of the sentencing hearing, he personally offered no evidence or explanation as to why he had this dangerous, loaded firearm in his possession. See R. v. Ellis, 2016 ONCA 598, at para. 80.

• The accused is not a youthful first offender, but rather is a relatively mature 33 year-old man with a criminal record, which includes convictions for property offences, drug trafficking, and failing to comply with court orders.

[19] The mitigating circumstances of this case include all of the following considerations:

• The firearm was stored in a personal residence, and there is no evidence that the firearm was ever used, or intended to be used, in any type of other criminal endeavour, such as drug trafficking or acts of violence.

• Well over four years have passed since the time of Mr. McKenzie’s initial arrest in relation to these offences, and he has been on a restrictive judicial interim release order, without incident, for that entire time.

• The accused is in a long-term committed relationship with his common law spouse, and they have three children together, and his family is financially dependent upon him and his business.

• The accused is now a hard-working roofing business owner, despite his socially disadvantaged background and history of family problems.

• Mr. McKenzie accepted responsibility for his actions, in the sense that, after fully litigating the validity of the telewarrant and the admissibility of firearm, the accused re-elected to be tried by a judge alone, and agreed to have his liability determined upon an agreed statement of facts.

G. The Global Sentence Merited by the Offences and the Offender

1. Introduction

[20] For the following reasons, I agree with the Crown that the appropriate global sentence, in all of the circumstances of the present case, is a sentence of 3½ years imprisonment. More particularly, I agree that the accused should receive an effective sentence of three years imprisonment for the firearms offence, and an additional six months imprisonment for the breach of the weapons prohibition order offence. That is the effective sentence that will be imposed upon the accused today, less the enhanced credit for his time in pre-sentence custody, and the appropriate credit for his lengthy time on a restrictive judicial interim release order.

2. The Firearms Offence

[21] As I have indicated, taking into account all of the circumstances of this case, in my view, the firearms offence committed by the accused requires the imposition of a three year term of imprisonment. I appreciate that there is no longer any three year mandatory minimum sentence of imprisonment for the offence of unlawfully possessing a loaded prohibited firearm while not the holder of an authorization or license and registration certificate, pursuant to s. 95(2)(a)(i) of the Criminal Code. I impose this sentence on the accused only because I consider it is fair and appropriate in all of the circumstances.

[22] It is important to appreciate that this case is not akin to a mere “regulatory” matter where an otherwise responsible and law-abiding gun owner has inadvertently failed to obtain a proper license or registration, or possessed a firearm in a location not within the geographic scope of his or her permit. Rather, the accused in this case was engaged in true criminal activity. He secured and secretively stored a loaded handgun in the bedroom of his apartment, where he lived with his family. He did this for reasons that he has elected not to disclose. However, he clearly had no legal authorization to have the firearm under any circumstances in any place. In short, he had no business possessing the gun. His clearly unlawful possession of this loaded firearm was a very serious criminal offence, created a significant public safety risk, and merits the imposition of a three year term of imprisonment. See R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 4, 6, 51-53, 107-109, 144, 206, affirmed, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 5, 82, 120.

[23] As I have indicated on earlier occasions, the criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms is a menace to society. Accordingly, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence and appropriately stress the need to denounce and deter such serious crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490, 201 O.A.C. 238 (C.A.), at para. 78; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995, at paras. 10, 58, affirmed, 2013 ONCA 223, 305 O.A.C. 47; R. v. Chambers, 2012 ONSC 817, [2012] O.J. No. 462, at paras. 15-17, affirmed, 2013 ONCA 680, 311 O.A.C. 307; R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, at paras. 22, 24, affirmed, 2015 ONCA 8, 319 C.C.C. (3d) 191; R. v. Farah, 2016 ONSC 5000, at para. 28.

[24] As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, “[m]ost s. 95 offences will attract a penitentiary term even for first offenders,” and even “less serious” versions of the crime than are typically committed “will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” See also R. v. Nur, at paras. 107-109, 206, affirming on this point, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-45, 49-52, 70, 145-149; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710, at paras. 9, 20-25; R. v. Husaini, 2013 ONSC 7737, [2013] O.J. No. 5832, at paras. 24-29; R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749, at paras. 21-28; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52, at para. 9.

[25] The accused in the present case is not a youthful first offender. He is a relatively mature 33-year-old man with a criminal record. That is not to say that rehabilitation does not remain an important sentencing consideration. The personal circumstances of the offender, including his continuing family support and his success in the roofing business, after overcoming difficult personal obstacles, show that the accused has much potential for rehabilitation. I simply observe that the accused cannot claim to be in the same favourable sentencing position as that occupied by a youthful first offender.

[26] Accordingly, in my view, before taking into account the enhanced credit to which the accused is entitled as a result of his pre-sentence detention, and the credit to which he is entitled as a result of duration and nature of his restrictive bail conditions, the proper application of the applicable sentencing principles, in all of the circumstances of this case, results in the imposition of a three year penitentiary term of imprisonment.

3. Breach of the Weapons Prohibition Order

[27] At the time of his firearms offence, the accused was subject to a court order which strictly prohibited him from the possession of such a weapon. In R. v. Ellis, at para. 30, I noted that the weight of authority strongly suggests that, as a general rule, in such circumstances, a consecutive sentence ought to be imposed for the breach of the weapons prohibition order. I also expressed my own agreement with that principled perspective, and suggested that, in the absence of a consecutive sentence, the accused would effectively receive no greater punishment as a result of his or her clear violation of a previous court order. Accordingly, the intentional violation of an unequivocal court order requires some effective additional sanction, as offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation. See also R. v. Manning, [2007] O.J. No. 1205 (S.C.J.), at paras. 42-43; R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.), at paras. 60-65; R. v. W.C.A., [2010] O.J. No. 2677 (C.J.), at paras. 49-51, affirmed, 2013 ONCA 385, 116 O.R. (3d) 500; R. v. Brown, at para. 15; R. v. Sadat and Mensah, 2011 ONSC 3303, [2011] O.J. No. 3052, at paras. 41-48; R. v. Jones, 2011 ONSC 5330, [2011] O.J. No. 4026, at paras. 50-51; R. v. Alexander, 2012 ONSC 6117, [2012] O.J. No. 5087, at paras. 39-43, 48-50; R. v. Charles, 2013 ONCA 681, 117 O.R. (3d) 456, at para. 102; R. v. Husaini, at paras. 49-51.

[28] Applying that principled approach in all of the circumstances of this case, and paying particular attention to the totality of the sentence ultimately imposed, in my view, the accused ought to be sentenced to an additional six month term of imprisonment for his breach of the earlier weapons prohibition order. While the duration of this consecutive sentence is perhaps somewhat lenient, in my view it is an appropriate disposition in light of the mitigating circumstances in this case, and the accused’s positive prospects for rehabilitation. See R. v. Mohamed, 2014 ONCA 103, [2014] O.J. No. 574, at para. 4.

H. Credit for Pre-Sentence Custody and Pre-Sentence House Arrest Bail

[29] Mr. McKenzie spent a total of six days in pre-sentence custody before he was released on bail. Given his personal background and antecedents, I am prepared to credit him for one and a half days of custody for each of these six days actually served, pursuant to s. 719(3.1) of the Criminal Code. The Crown did not suggest otherwise. Accordingly, I credit the accused with having already served nine days in custody. See R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 32-35, 68-83.

[30] When the accused was released from custody on bail, on May 4, 2012, he was required to live with his mother-in-law and surety, and not to be away from his place of residence except to go directly to and from his employment for the purposes of his employment, or while at work, or when he was in the company of one of his two named sureties. That judicial interim release order has remained in effect since that time and has never been amended or altered. Accordingly, the accused has been subject to this restriction on his liberty for a period of over four years and three months. Throughout this period of time, the accused has abided by all of the conditions of his release without incident.

[31] While the “house arrest” condition imposed upon the accused was not as stringent and restrictive as some, and permitted the accused to work, and to be outside his residence in the company of one of his two sureties, it was still a significant restriction upon his liberty, and is a mitigating circumstance that must be taken into account and given significant credit in sentencing the accused. See R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, at para 37; R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 36-37. In my view, given the lengthy duration of this bail order, and its impact upon the accused, especially in his relationship with his children, he should be accorded an effective credit of close to one year imprisonment. See R. v. Peterkin, at paras. 36-43; R. v. Ellis, at paras. 38-43; R. v. Hatimy, 2014 ONSC 1586, [2014] O.J. No. 1154, at paras. 52-54; R. v. Daniels, 2015 ONSC 2520, [2015] O.J. No. 1917, at paras. 29-32; R. v. Ijam, at paras. 23-38.

I. The Sentence Imposed

[32] Having concluded that the accused is entitled, pursuant to s. 719(3.1) of the Criminal Code and the decision in Summers, to some nine days credit for his brief period of pre-sentence custody, and having also concluded that the accused is entitled, pursuant to the decision in Downes, to a credit of close to one year given the duration and terms of his judicial interim release order, in my view fairly combining these credits together results in a total credit to the accused of having already effectively served a full one year term of imprisonment.

[33] Accordingly, the sentence of 3½ years imprisonment that would otherwise have been imposed upon the accused will be reduced by this total credit of one year. This results in the imposition of a 2½ year penitentiary term of imprisonment. More particularly, the accused is sentenced to a two year term of imprisonment for the s. 95(1) firearms offence, and to a consecutive six month term of imprisonment for the s. 117.01(1) breach of the weapons prohibition order. That is the total sentence that is now imposed upon the accused.

[34] I note in passing that, given the duration of this total sentence, the accused is simply not eligible to receive a conditional sentence. I would not have imposed such a sentence in any event as a conditional sentence would not, in my view, have provided a sufficient measure of deterrence and denunciation, nor would it have proportionally reflected the gravity of the offences committed by the accused.

J. Ancillary Sentencing Orders

[35] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.

[36] First, pursuant to s. 491(1) of the Criminal Code, I order that the firearm and ammunition that has been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.

[37] Second, pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.

[38] Third, as the accused has been found guilty of committing a “secondary designated offence,” pursuant to s. 487.051(3) of the Criminal Code, I make an order in Form 5.04, to have samples of bodily substances taken from the accused for purposes of forensic DNA analysis.

K. Conclusion

[39] In the result, after appropriately crediting the accused with having already served the equivalent of a one year term of imprisonment, the accused is now sentenced to a 2½ year penitentiary term of imprisonment – a two year term of imprisonment for the firearms offence and an additional six month term of imprisonment for the breach offence.

[40] The accused is also subject to the various ancillary sentencing orders that have been issued.

______________________________

Kenneth L. Campbell J.

Released: August 8, 2016

CITATION: R. v. McKenzie, 2016 ONSC 5025

COURT FILE NO.: CR-731/13

DATE: 20160808

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

CHRIS MCKENZIE

REASONS FOR SENTENCE

K.L. Campbell J.

Released: August 8, 2016