CITATION: R. v. Benjamin Wainright 2016 ONSC 7723
Court File No. 12-00013778-0000
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BENJAMIN WAINRIGHT
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE J. TOSCANO ROCCAMO
On December 19, 2016, at OTTAWA, Ontario
APPEARANCES:
J. DALLER Counsel for the Crown
S. STARKIE Counsel for Benjamin Wainright
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
REASONS FOR SENTENCE 1 - 27
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: December 22, 2016
Transcript Completed: February 28, 2017
Ordering Party Notified: February 28, 2017
MONDAY, DECEMBER 19, 2016
REASONS FOR SENTENCE
TOSCANO ROCCAMO, J. (Orally)
On March 22, 2016, I found Benjamin Gordon Wainright guilty of the following offences; (1) possession of a prohibited weapon, namely a set of brass knuckles, without being the holder of a licence permitting the possession, contrary to Section 91(1) of the Criminal Code; (2) possession of the brass knuckles, knowing he was not the holder of a licence authorizing possession, contrary to Section 92(1) of the Criminal Code; (3) attempting to take the brass knuckles on board a passenger aircraft owned by WestJet, without the consent of WestJet, contrary to Section 78(1) of the Criminal Code; (4) attempting to take an offensive weapon, namely a Colt 177 caliber airgun on board the WestJet passenger aircraft, without the consent of WestJet, contrary to Section 78(1)of the Criminal Code. As requested by the Crown in this case I entered a stay on Count 1, pursuant to Regina v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
The facts giving rise to the criminal charges took place on December 4, 2012, when Mr. Wainright was 22 years of age. Although the disposition of these charges falls outside of the presumptive ceiling of 30 months that the Supreme Court of Canada in Regina v. Jordan 2016 SCC 27, [2016] S.C.J. 27, held was at the outside range of acceptable delay, net of delay caused solely by the defence, and absent exceptional circumstances, an application under Section 11(b) of the Canadian Charter of Rights and Freedoms was not advanced in support of a constitutional stay of the charges.
Nevertheless, I make the observation only insofar as the time elapsed to trial, and subsequently to date, is a factor I consider relevant to Mr. Wainright’s sentence, insofar as he has, for over four years, strictly abided by the terms of his interim release, without further violation of the law. I note that he was released on December 4, 2012 on his own Recognizance and Undertaking, which included a condition not to possess any firearms or weapons as defined by the Criminal Code.
The Crown readily acknowledges that the conduct underpinning the charges does not lie at the upper end of the spectrum of moral blame-worthiness. Indeed, Mr. Wainright himself apologized to this court, and members of the public, including those responsible for airline and passenger safety, and acknowledged that on December 4, 2012, he was stupid and reckless when he attended the WestJet counter at the Ottawa International Airport to check in his duffel bag with intent to board a WestJet flight to Toronto, followed by a WestJet flight to Edmonton.
He recognized that he did so without obtaining WestJet’s permission to have in his checked luggage a Colt .177 caliber air gun, loaded with pellets, and a CO2 cartridge, and an additional cartridge, as well as a belt buckle in the form of brass knuckles. The duffel bag was seized with the noted contents after routine screening revealed what appeared to be a handgun in the duffel bag.
After his arrest, Mr. Wainright fully cooperated with Detective Chris O’Brien of the Ottawa Police Force, and gave a voluntary statement confirming the prohibited items in his bag were his, and that he was aware they were in his checked bag. Although he professed ignorance of the law, he acknowledged that the items could be seen as weapons.
At trial, Mr. Wainright acknowledged that he had had a previous conviction at 18 years of age for unauthorized possession of a hunting knife, contrary to Section 91(1) of the Criminal Code, and that he ought to have known better. At the same time, he testified that the airgun was a gift from his grandfather purchased from a Canadian Tire store, and was used only for recreational purposes as a part of his Native heritage for shooting small animals, and for target practice while in the woods. He testified his grandfather required him to take firearm safety training, which included training on BB guns of the kind he attempted to take on board. The brass knuckles were purchased at a belt buckle store at the Cataraqui Mall in Kingston.
The Crown readily acknowledges that Mr. Wainright did not begin his day seeking to unleash widespread havoc and mass casualties of the kind expected of a hijacker, or a terrorist. An offence punishable under Section 92(1) of the Criminal Code, including unauthorized possession of a firearm, carries no minimum sentence, and a maximum sentence of 10 years for a first offence, pursuant to Section 92(3)(a) of the Criminal Code. Pursuant to Section 78(1) of the Criminal Code, and Section 463(b)of the Criminal Code, an attempt to take on board a civil air craft an offensive weapon carries no minimum sentence, but one half the maximum sentence of 14 years, or in this case, a 7-year term.
The defence urges me to sentence Mr. Wainright to a suspended sentence and 18 months probation, with strict terms that incorporate an element of deterrence. Alternatively, the defence invites me to impose a sentence in the intermittent range, if a period of incarceration is warranted. By contrast, the Crown seeks a term of 6 months jail, plus 12 months probation including the statutory terms, and others as recommended in the pre-sentence report, a DNA order, and a weapons prohibition for ten years.
While defence counsel took no issue with imposing a weapons prohibition as a term of probation, she took the position that given Mr. Wainright’s Aboriginal background and heritage, a broad-based weapons prohibition of ten years would be unduly punitive having regard to Indigenous rights of hunting, trapping, and fishing. In addition, she notes that a DNA order would serve no purpose in the protection of the public, and would be outweighed by Mr. Wainright’s privacy interests in the circumstances of this case.
Mr. Wainright has a short, and dated criminal record, with a conviction in 2005 from Kingston, Ontario, for the unauthorized possession of the hunting knife previously noted, contrary to Section 91(2) of the Criminal Code. He served 1 day of jail, with 20 days of pre-sentence custody. I would observe, however, that there is no evidence that the Gladue factors were considered. Indeed, it is unknown whether Mr. Wainright’s ancestral heritage even came to light, thereby requiring the sentencing judge to inquire into systemic background factors affecting Aboriginal offenders, and to consider imposing a sentence taking into account all available sanctions, other than imprisonment under Section 718.2 of the Criminal Code. I simply observe that, had a Gladue report been warranted, which is unlikely having regard to the imposition of a custodial sentence of under 90 days, it is difficult to imagine that the sentencing court would not have taken into account the importance of a hunting knife, an object of some importance to constitutionally protected rights of hunting, trapping, and fishing.
In addition, there is a gap of at least 8 years in respect to Mr. Wainright’s last conviction by a Quebec court in 2008, for possession of drugs for the purpose of trafficking, for which Crown counsel opined that he likely received a discharge, having regard to the non-reporting sentence of probation for 2 years, incorporating 150 hours of community service. I would resolve these ambiguities in respect of Mr. Wainright’s criminal record in his favour.
By virtue of the prior conviction for possession of a restricted weapon, for which Mr. Wainright served a short jail sentence in the first year of his adult life, there is little doubt that Mr. Wainright was, at a minimum, reckless with respect to the obvious public safety concerns surrounding the possession of weapons. This arguably favors a sentence that incorporates an element of specific, as well as general deterrence. While it is undisputed that the BB gun’s canister was loaded and ready to fire, Crown counsel acknowledged that it is not possible to say whether there was any risk of explosion and damage to the aircraft during flight, or whether a pellet fired from the gun accidentally would have had sufficient velocity to exit his luggage, and damage the aircraft.
Nevertheless, there is little doubt that the mischief targeted by Section 78 of the Criminal Code, while placing the responsibility of airline safety in large measure upon the airline itself, is to foster confidence in the belief that the laws prohibiting the carriage of potentially dangerous goods on board an aircraft are respected by one and all. This arguably favors a sentence that emphasizes general deterrence and denunciation.
I do not fail to note, however, that Mr. Wainright did not carry his duffel bag on board as a carry on, but checked his luggage, and presumably expected his luggage to be screened. The screening process put in place worked as intended, and resulted in the discovery of weapons averting any danger, whether real or theoretical, to the aircraft and its passengers.
While Mr. Wainright does not benefit from the mitigation accompanying a plea of guilt, as Crown counsel observed, the trial issues were narrowed to an extent. Mr. Wainright acknowledged in his police interview that he ought to have made better choices. The Pre-Sentence Report pertaining to Mr. Wainright speaks to a number of mitigating factors related to his behaviour and attitude, his willingness to make amends, and his prior history of compliance with criminal sanctions. Mr. Wainright was co-operative during the interview, and accepted responsibility for the offences. He completed a prior term of probation in 2009, requiring 150 hours of community service work, in respect of which there were no concerns, and no probation breaches on record.
The Pre-Sentence Report confirms that, now in his 29th year of age, Mr. Wainright enjoys a stable family background, and an ongoing relationship with both of his parents, and his sister, notwithstanding the conflict between his parents, which resulted in their separation when he was only ten years old. Although his mother alleges that Mr. Wainright’s father was violent towards her on a number of occasions, there was no suggestion of any violence directed at his children. In addition to the conflict between his parents, the family moved frequently due to his father’s involvement in the military. However, despite having lived in 20 places prior to the age of 20, Mr. Wainright made friends easily, and did not find the frequent moves to be a burden. While his father has remarried and moved to the United States, his mother and sister live in the Kingston area, where Mr. Wainright currently resides with his partner, Shannon Thuell, in a stable and supportive relationship since April, 2015.
Although Mr. Wainright did not complete grade 12, there is evidence that he has been gainfully employed in different types of work over the years, and has a talent for various construction jobs, other than electrical and plumbing work. He worked in construction before moving to the town of Listowel, Ontario in 2015, where he managed a movie theater for a minimum wage, and rent-free accommodation in the apartment above the movie theater. He supplemented his income working for a mason in the Listowel area, because the movie theater did not afford him the necessary hours of employment. Notwithstanding the 12-hour work days, Mr. Wainright expressed a positive attitude toward the hard labor involved in masonry.
Since his recent move in the spring of 2016, to the Kingston area with is girlfriend, Mr. Wainright has found work at Dream Time Painting, which began at a minimum wage, but is subject to increases up to a maximum of $15 per hour. At the same time, he works for his friend in the roofing business.
Mr. Wainright has a history of social drinking three to four times per week, which does not involve heavy drinking on more than one or two occasions in a year. Mr. Wainright revealed that he also uses marijuana on rare occasions. He has not used any heavier drugs, such as cocaine, in the last five years, all of which is confirmed by Ms. Thuell.
The Pre-Sentence Report concludes that Mr. Wainright is someone who would respond positively to community supervision, incorporating conditions to report to the probation officer as required, not to possess, purchase, or own any weapons or imitations weapons, to maintain suitable employment, and to reside at an approved residence.
I received three letters of support speaking to the character of Mr. Wainright. The mother of his girlfriend, who is Catherine Thuell, authored a letter dated October 23rd, 2016, describing Mr. Wainright as a highly intelligent, versatile, and creative man, whom she first met in the spring of 2015, when he moved to Listowel to manage the local theater. She described him as professional, courteous, and one who exhibited exemplary behaviour on any occasion she met him, or saw him in public. She also described him as capable of working in many areas, from managing the theater, and antique shop, to working in the local trades. She added that he was comfortable with people of all ages, from small children to elderly seniors.
Mr. Wainright’s current employer, and friend for the past 13 or more years, Justin Wailes, also vouched for his character, notably describing him as a well mannered, kind, and intelligent man, with strong principles of honesty, loyalty, and dependability. Mr. Wailes was a co-worker of Mr. Wainright’s in Alberta, and then became his employer after Mr. Wailes moved to Kingston and started his own roofing company. He confirmed that Mr. Wainright has a great general knowledge of most home building trades. It is evident that Mr. Wailes relies heavily on Mr. Wainright, whom he indicated is never late or sick, and always does his best on the job. He predicted that he would be forced to shut his company down if Mr. Wainright no longer worked for him. He describes Mr. Wainright as the best employee, hands down, he has ever had. It is interesting to note, that he also said that despite his intelligence, at times Mr. Wainright can be lacking in common sense.
A letter of reference dated November 23, 2016, written by Paul Peterson of Listowel, Ontario, is perhaps the most helpful to me in understanding the character and background of Mr. Wainright. Mr. Peterson dated Mr. Wainright’s mother three years ago, and was immediately welcomed into the family by Mr. Wainright. He subsequently went on to offer employment to Mr. Wainright from March of 2015, to May of 2016, at one of Mr. Peterson’s cinemas. He described Mr. Wainright as a trusted employee who did an amazing job in customer service, and in managing their social media accounts. He credited Mr. Wainright for an unprecedented growth in the company accounts, and customer base. Mr. Wainright handled significant amounts of money on his behalf, and was dedicated, and trustworthy throughout.
Mr. Peterson notably has a background in social work, having spent 25 years as a counsellor before his business interests became a full-time pursuit. He observed that Mr. Wainright was put into the position of being the man of the family when he was just a boy, at the time his parents separated. After his parents separated, he observed that Mr. Wainright lacked a positive male role model in his life, and that his mother had two long-term partners after the break up of her marriage, who offered no direction or attachment to Mr. Wainright, and who may have had a negative impact on him. Most importantly, he noted that the most influential male role model for Mr. Wainright was his grandfather, who was prone to rigid enforcement of rules, as a result of which, Mr. Wainright often found himself “on the outside of his grandfather’s affection, looking in.” Mr. Peterson observed that Mr. Wainright is a gentle, and caring soul who uses a cool demeanor as a coping mechanism. Notwithstanding his past, he notes that Mr. Wainright is in a good place today, with a great relationship, and a job that offers a chance for promotion, or partnership. He summarized Ben Wainright as a good human being, who made a bad decision, and who has risen above hardship.
Although a Gladue Report was not sought by counsel, I determined it appropriate to order one upon hearing references to Mr. Wainright’s Aboriginal heritage in the course of trial. There is no doubt the Gladue Report dated November 22, 2016, and authored by Ms. Stephanie Bean of Aboriginal Legal Services, provides valuable information pertinent to sentencing. In my opinion, it was essential to my understanding of the offender before me, and provided the necessary context, including systemic factors affecting Mr. Wainright’s moral blame-worthiness. Failing to consider the systemic factors, would have precluded my ability to fashion a sentence proportionate to the gravity of the offence, and the degree of responsibility of the offender.
In Regina v. Gladue [1999] S.C.R. 688, the Supreme Court addressed the over representation of Aboriginal people in the justice system, and interpreted the newly added provisions in Section 718.2 of the Criminal Code, requiring judges to consider all available sanctions, other than jail time, with particular attention to the circumstances of Aboriginal offenders. At Pages 8 and 9 of her report, Ms. Bean provided the necessary context and background that helps to explain the economic, and social disadvantage figuring prominently in the disproportionate involvement in crime by Aboriginal offenders. Ms. Bean wrote that, beginning in the 1880’s, the Department of Indian Affairs of the Government of Canada instituted policy that sought to “kill the Indian in the child”, through the establishment of Indian Residential Schools. The Royal Commission on Aboriginal Peoples described the policy as aimed at severing the artery of culture that ran between generations, and was the profound connection between parent and child sustaining family and community.
The Gladue Report for Mr. Wainright furnished evidence of Mr. Wainright’s Algonquin ancestry, derived from his maternal grandmother. It included an interview of Mr. Wainright’s mother, Sherry Struthers, which suggested a history of alcoholism, and physical and sexual abuse, experienced by her great grandmother, whom she’d believed to be of full Indian decent. Ms. Struthers also suggested this reality impacted the lives of the succeeding generations. She described the attitude of her ancestors towards their aboriginal history as one that effectively distanced them from their Aboriginal roots, and lifestyle, and thwarted the beneficial connection to elders and community offered by the Aboriginal way of life.
There is little doubt from the character reference provided by Mr. Peterson, coupled with the details which emerged in an interview of Mr. Wainright’s family members as part of the Gladue Report, that Mr. Wainright himself suffered periods of homelessness, substance and alcohol abuse, and disruption in his primary relationships, beginning with the separation of his parents.
Mr. Wainright’s sister, Rebecca, in reflecting upon her brother’s life experience, noted that that they all grew up provinces away from their father, their grandmother, and all of their support system. In her opinion, Mr. Wainright was the least adjusted of all of them, who after living for a time with his mother, and then his father, lived on the streets, hitchhiked, and drank heavily on a daily basis, exposing himself to at least one abusive experience while hitchhiking. He subsequently went on to form a relationship described as “poisonous”, with a woman who drank as heavily as he did. Ironically, he chose to leave this relationship, and start afresh by accepting employment in Alberta when charged with these weapons-related offences in 2012.
In concluding the Gladue Report, on Page 22 and 23, Ms. Bean expressed Sherry Struthers’ belief that Benjamin Wainright might well have suffered from the lack of profound connection to his Aboriginal ancestry when she said, and I quote:
It’s something that I think he needed, I think it’s, I think that people that have native ancestry, need that connection. I think it couldn’t have hurt him, I think it couldn’t have hurt any of us, but I think he’s one of the kids that could have benefited from that sense of community, that sense of guidance. He has such a respect for my father, that to have elders that he respected would have made a huge difference, and I think that moving forward, it’s something that we need to pursue too.
Although it’s difficult to establish a direct causal link between Mr. Wainright’s circumstances, and his offending, I would note that the Supreme Court in Regina v. Ipeelee, 2012 SCC 13 [2012] 1 S.C.R 433, at paragraph 83 cites with approval the findings of the Aboriginal Justice Inquiry of Manitoba, in Regina v. Collins, 2011 ONCA 182, 277 OAC 88, which noted the interconnections between the circumstances of an Aboriginal offender, and the offending, are simply too complex. The Aboriginal Justice Inquiry, at Page 86 concluded that, and I quote:
Cultural oppression, social inequality, the loss of self-government, and systemic discrimination which are the legacy of the Canadian Government’s treatment of Aboriginal people, are intertwined, and interdependent factors, and in very few cases is it possible to draw simple, and direct correlation between any one of them, and the events which lead an individual Aboriginal person to commit a crime, or to become incarcerated.
As the Supreme Court in Ipeelee observed at paragraph 83:
The operation of Section 718.2(e) of the Code, does not logically require a direct causal connection.
If a connection were sought in Mr. Wainright’s case however, both Sherry Struthers, and Paul Peterson, clearly identified a lack of positive male role models in Mr. Wainright’s life, and a lack of direction and sense of belonging to community.
It is not difficult to see how under such conditions, a young man could fall prey to homelessness, start drinking at 12 years of age, and use drugs at 13 or 14 years of age. It is hardly surprising that he would engage with peers in like circumstances, and select unsuitable partners. In turn, the economic and social disadvantages of his environment fostered interaction with the criminal justice system.
In light of Mr. Wainright’s life and circumstances, and systemic and background factors, Ms. Bean made three recommendations for consideration in sentencing: (1) that Benjamin Wainright undertake a period of community services, and identified the Habitat for Humanity Restore as one option wherein Mr. Wainright could use his talents, and assist others in the community with housing; (2) that Benjamin Wainright meet regularly with Samantha Alkenbrack, Community Wellness Coordinator at the Métis Nation of Ontario in Kingston, for assistance connecting with his Aboriginal cultural identity, and by making referrals to elders in the community; (3) that Benjamin Wainright meet with Kelly Maracle, Indigenous Student Support Worker, at Cataraqui Aboriginal School, to explore the possibility of completing his high school diploma.
Section 718 of the Criminal Code sets out that the fundamental purpose of sentencing is to contribute, along with crime prevention, to respect for the law, and the maintenance of a just and peaceful society, by imposing sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct. (b) to deter the offence, and other persons from committing offences. (c) to separate offenders from society where necessary. (d) to assist in rehabilitating offenders. (e) to provide reparations for harm done to victims, or to the community, and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims, and to the community.
Section 718.2(d) cautions the court to exercise restraint in observing that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.
Section 718.2(e) also speaks to the particular circumstances of Mr. Wainright as an Aboriginal offender, in encouraging the consideration of all sanctions, other than imprisonment, that are reasonable in the circumstances for an offender, with particular attention to the circumstances of an Aboriginal offender. In Regina v. Gladue, the Supreme Court characterized Section 718.2(e) as a remedial provision, requiring the sentencing court to consider the over-representation of Aboriginal offenders in custody, and fashioning the appropriate sanction.
In Ipeelee, the Supreme Court at paragraph 73, urged judges to fashion sentences proportionate to the gravity of the offence, and to the degree of the responsibility of the offender, noting that, and I quote:
Many Aboriginal offenders find themselves in situations of social, and economic deprivation, with a lack of opportunities, and limited options for positive development. While this rarely, if ever, attains a level where one could properly say that their actions were not voluntary, and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability.
In a recent publication, entitled Overview of the Gladue Principles in Criminal Proceedings, the Ministry of the Attorney General reminds the sentencing judge that Gladue requires a court to consider, and I quote:
Culturally relevant sentencing procedures and sanctions, with particular focus given to alternatives to incarcerations, such as restorative justice models.
The noted MAG publication highlights alarming statistics which reveal that from 2005 to 2015, the Indigenous inmate population increased by more than 50 percent in Canada. In 2015, more than one in three women in jail were Indigenous, and more than one in four men in jail were Indigenous.
Having regard to the holistic account of Mr. Wainright’s background, and unique circumstances, in the context of his Indigenous ancestry, and the alarming reality of increasing over-representation of Aboriginal people in the justice system, I turn now to the case law cited by defence and Crown counsel. I agree with counsels’ observation that the only sentencing decision for an offence under Section 78 that is even remotely similar to the case at bar, is Regina v. Laponsee [2012] O.J. No 6431, affirmed 2015 ONCA 344, 121 W.C.B. (2d) 355. In Laponsee, an accused checked his luggage at an airline desk, and upon security screening, it was found to contain a 22-caliber hand gun, and a box of ammunition. Mr. Laponsee was charged with four firearms offences, and two counts under Section 78. He was sentenced to a 12 month conditional sentence, which has since become a sentence unavailable in Canadian criminal law.
Crown counsel reminds me that in Laponsee, the offender did not have a criminal record, that his gun was not loaded and ready to fire, that he did not have brass knuckles as an additional weapon, and also had an expired firearms licence. This would suggest a greater degree of moral culpability on the part of Mr. Wainright; however, as the court in Laponsee found the offender did not accept responsibility for his actions, and neither he, nor his mother who testified on his behalf, were found to be credible.
The trial judge in Laponsee specifically found Mr. Laponsee told an outright lie in claiming that the gun had sentimental value to him. By contrast, Mr. Wainright has always accepted responsibility from his initial involvement with police, and ran his trial on the basis of the legality of his actions. Moreover, I have no cause to question Mr. Wainright’s sentimental attachment to his BB gun, which was a gift from his maternal grandfather of particular importance, having regard to his recreational use as part of his custom, and Aboriginal heritage. In addition, it appeared that Mr. Laponsee made some effort to disguise or hide the gun in the luggage in order to avoid detection, as it was wrapped in tinfoil, and placed under licence plates. Mr. Wainright made no such effort to conceal his brass knuckle belt buckle, or BB gun. Of particular note is that Mr. Laponsee had a real gun, which is treated far more seriously than pellet guns. Moreover, there was a licencing scheme that Mr. Laponsee could have complied with to legally possess his firearm, and chose not to. There is no such licencing scheme for air guns, or brass knuckles. Finally, Mr. Laponsee was charged with a number of other firearm offences, that Mr. Wainright is not charged with.
In my opinion, all of these factors lean in favour of a sentence Mr. Wainright serves in the community, that affords the necessary degree of individual, and general deterrence, which considers his Aboriginal heritage, and supports his ongoing rehabilitation.
A survey of the sentencing case law for possession of brass knuckles reflects sentences ranging from an absolute discharge, to a period of incarceration of six months. Again, there are no cases which reflect the circumstances of the offence, and the offender, present in Mr. Wainright’s case. While the defence cited Regina v. Boyce; [2002] O.J No 3707 (Ont.C.J) 55 W.C.B (2d)431, and Regina v. Leung [2012] O.J No 5744 (Ont.C.J) as sentencing authorities in support of a conditional, or absolute discharge, I find that neither of these offenders had a criminal record, related or otherwise, that Mr. Wainright does, that neither of these offenders attempted to bring their weapons onboard an aircraft, and that neither of these offenders were convicted in relation to weapons that met the Criminal Code definition of firearm. On the other hand, Mr. Boyce was convicted of 34 counts of possession of prohibited weapons including, knives with handles similar to brass knuckles, which he sold for a profit knowing the risk of having illegal weapons. In Mr. Leung’s case, he too was convicted of possessing 26 prohibited knives, and 3 sets of brass knuckles for sale purposes, and he failed to abide by prior warnings issued about the character of the items he sold.
In the case of Regina v. Nascimento 2104 ONSC 6739, 2014 Caswell Ont 17 812, while Mr. Nascimento received two months jail for possession of brass knuckles in the context of a global sentence of six years and two months, where sentencing focused on Mr. Nascimento’s possession of a single firearm; it must be observed that Mr. Nascimento had a lengthy record, with numerous periods of incarceration, and was under a weapons prohibition at the time that he reoffended.
Finally, I take note of the case of Regina v. Francis, [2012] O.J. No 6627 (Ont.C.J) where the offender received three months jail concurrent, for possession of brass knuckles while convicted of possession of drugs for the purposes of trafficking. However, Mr. Francis had a recent drug record, and was on probation, and was also subject to a weapons prohibition at the time of the offences.
A general observation may be made that to the extent that there is a pattern in this case law, it would suggest that individuals who have no nefarious purpose for the brass knuckles, and are not otherwise engaged in criminal activity, are more likely to receive non-custodial sentences. By contrast, offenders engaged in other crimes are more likely to receive a custodial sentence for the brass knuckles offence.
After balancing the principles of sentencing, the mitigating and aggravating factors at play, and with due regard to Mr. Wainright’s Aboriginal heritage as required by Section 718.2(e), I’m satisfied that a jail sentence would not serve the ends of justice, and would likely undermine the efforts Mr. Wainright has made to rehabilitate himself, and lead a pro-social life. Although deterrence and denunciation for the crimes before me remain paramount, they must be balanced with restraint and rehabilitation, in a sentence that considers the options short of incarceration and separation from society in the case of an Aboriginal offender.
I’m also satisfied that the information contained in the Pre-Sentence Report, the Gladue Report, and the letters of reference, lean in favour of a sentence served in the community, where Mr. Wainright would continue to lead a pro-social life, both through gainful employment, and community service.
Although a suspended sentence, coupled with a period of probation emphasizes the rehabilitation of the offender in this case, I am satisfied that strict conditions should be imposed to promote the more punitive purposes of general and specific deterrence and denunciation. These conditions would include; community service, abstinence from drugs and alcohol, and a requirement not to possess weapons including, brass knuckles, and all forms of firearms, including BB guns.
However, having regard to Mr. Wainright’s Aboriginal heritage, a blanket weapons prohibition of ten years, proposed by Crown counsel, would unduly limit his ability to engage in the rituals and customs important to Aboriginal culture, including hunting, trapping, and fishing. As I have noted, due to the delay and disposition of these offences, Mr. Wainright has already strictly abided by an undertaking not to possess firearms and weapons since December 4, 2012. Had I considered a weapons prohibition necessary, I would have imposed a maximum prohibition of no more than five years. In light of the fact that Mr. Wainright has for four years already refrained from any possession of any weapons or firearms, an additional eighteen months restraint as part of a probation order is a sufficient sanction.
I accept that Mr. Wainright has already suffered a number of consequences as a result of his actions, not the least of which has been a lengthy period on bail, during which there is no evidence of breach of conditions. In addition, I have concluded that a DNA order would not serve to protect the public, and would be outweighed by Mr. Wainright’s privacy interests in the circumstances of this case. Before imposing a sentence, Mr. Wainright is entitled to address the court if he has anything more to add, if not, I would ask him to stand to receive his sentence.
Mr. Wainright, in arriving at what I consider to be a fit, and just sentence in your case, I have chosen to trust you. I’ve chosen to trust you because, by all accounts, you’ve earned that trust over the past four years.
BENJAMIN WAINRIGHT: Thank you.
THE COURT: I do not minimize the great strides you have made, particularly in light of your history and background. I accept on behalf of the administration of justice, and the public, your apologies to the community, including the community of other travellers, who deserve to feel confident that you and others like you will respect the law, and refrain from carrying prohibited weapons and firearms, unless authorized by law, and licenced to do so, with the consent of the airline involved.
You shall serve a suspended sentence in the community, pursuant to Section 731(1) of the Criminal Code, with 18 months of probation, with strict terms as follows; (1) you will keep the peace and be of good behaviour. (2) you will abstain from possessing a firearm, and any weapons as defined by the Criminal Code of Canada. (3) you will reside at a known address. (4) you will report regularly as directed to probations services, within three days, and thereafter when required by your probation officer, reporting any change in address or employment. (5) You shall remain gainfully employed, (6) you will perform 150 hours of community service, as directed by your probation officer. The Habitat for Humanity Restore, recommended by Ms. Bean of Aboriginal Legal Services is one option. However, given your people skills, and ability to work with young and old, you might identify audiences in the Aboriginal Community who would benefit from hearing your experience, and learning to avoid the unlawful and reckless behaviour you engaged in, and which put you before this court. This will better inform others in the Aboriginal Community, who will be able to enjoy their traditional customs of hunting, trapping, and fishing, while at the same time, observing the limits of the law. To that end, I direct you to meet with Samantha Alkenbrack, the Community Wellness Coordinator at the Métis Nation of Ontario in Kingston, as recommended by Ms. Bean; (7) you will abstain from the consumption of alcohol, or drugs, except in accordance with a medical prescription.
Pursuant to Section 732.2 (5) of the Criminal Code, should you breach, without reasonable excuse, the listed conditions during the time of your suspended sentence, in addition to any punishment that may be imposed for that offence, the court may, on application by the prosecutor, require you to appear before it, and after hearing submissions from the prosecutor, and on your behalf, revoke the suspended sentence, and impose any sentence that could have been imposed if the passing of sentence had not been suspended. Or, make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force, for such period not exceeding one year, as the court deems desirable.
Mr. Wainright, I do not think it hurts repeating what I have just stated in more legal language; should you breach the terms of my order, and find yourself before the court, you will not only suffer the consequences when you are brought back before this court, but there will be a revocation of the suspended sentence, and you will become subject to other penalties that I have suspended by these reasons. Do not disappoint this court, or your community. Those are my Reasons.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Sarah Bryant
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R v. Benjamin Wainright
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
Ottawa, Ontario
(Court Address)
taken from Recording
0411_CR33_20161219_093355__10_ROCCAMG.dcr
, which has been certified in Form 1.
February 28, 2017
Sarah Bryant
(Date)
(Signature of Authorized Person(s))
*This certification does not apply to the (Ruling(s), Reasons for Judgment, Reasons for Sentence, or Charge to the Jury) which was/were judicially edited.