COURT FILE NO.: CR-15-149

DELIVERED ORALLY: 20161208

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHNATHON CHISLETT

Defendant

C. Curry, for the Crown

A. McLeod, for the Defendant

HEARD: October 17, 2016

RULING RE: CONSTITUTIONAL CHALLENGE AND SENTENCING

MULLIGAN J.:

[1] On April 25, 2016, Jonathan Chislett pleaded guilty to the following five counts:

• Break and Enter a dwelling house and steal a firearm (s. 98 (b)(i));
• Steal a Motor Vehicle (s. 333.1);
• Breach of Recognizance (s. 811);
• Operation of a Motor Vehicle In a Dangerous Manner (s. 249 (1)(a)); and
• Having in his possession a firearm knowing that it was obtained by commission of an offence (s.86 (1)).

[2] The defence gave notice that it was bringing an application that s. 96(2)(a) of the Criminal Code, R.S.C., 1985, c. C-46 is of no force or effect. That section imposes a one-year minimum sentence on persons convicted of possession of a firearm knowing it was obtained by the commission of an offence. This matter returned for a hearing on October 17, 2016. In addition to submissions from counsel, a Pre-Sentence Report was filed, which made reference to Mr. Chislett’s previous record. The defence filed various medical reports with respect to Mr. Chislett’s current medical condition.

Background

Agreed Statement of Facts

[3] A brief summary of the Agreed Statement of Facts will provide context for the discussion that follows. On September 10, 2013, Mr. Chislett broke into a family residence at a time when no one was home. While there, he broke into a locked, metal gun storage cabinet and retrieved a double barrelled shotgun. He proceeded to steal cash and other valuables from the residence. He then entered the garage and stole a motorcycle, but not before wrapping the double barrelled shotgun and attaching it to the motorcycle. He left the garage with the stolen items in a backpack. He left the residence on a motorcycle, but soon went out of control and collided into the garage of a nearby residence. He sustained serious injuries and was helped by passersby until paramedics arrived. The firearm was observed and later seized by the police as part of their investigation. At the time of this occurrence he was on a recognizance to keep the peace.

Mr. Chislett’s Injuries

[4] As a result of the accident Mr. Chislett suffered a brain injury and is currently on the Ontario Disability Support Program (ODSP). He is 23 years of age and now resides with his sister. Mr. Chislett has some support from his father, Glenn Chislett, who acts as his Power of Attorney. His father filed an affidavit for the purpose of this hearing attaching various medical reports with respect to Mr. Chislett.

The Report of Dr. William Foulton PhD. C.Psych

[5] In connection with his civil lawsuit Mr. Chislett obtained a neuro-psychological evaluation on December 1, 2014 from Dr. Foulton. Dr. Foulton noted that Mr. Chislett suffered serious injuries in the crash requiring a transfer by helicopter to Sunnybrook Hospital’s Trauma Unit. In addition to the head injury, he suffered some fractures. He was released from the hospital on September 16th, 2013, but returned from time to time to have his fractures attended to. Dr. Foulton noted his medical history thereafter including frequent visits with a range of medical professionals.

[6] In his report, Dr. Foulton concluded:

[I]n his current state, Mr. Chislett is considered wholly disabled from a neuropsychological perspective. The combined impact of these physical, cognitive, psychological/emotional, social and behavioural deficits/excesses along with his anosognosia (i.e. lack of awareness of injury/deficiencies) render him incapable of spontaneous adaptation to his current circumstances. At present he is unemployable.

Report of Dr. Lambros Mermigis, Psychologist

[7] A report was also filed from his treating psychologist, Dr. Lambros Mermigis. As he stated in his report:

I have been seeing Mr. Chislett weekly in psychological treatment since June 2014 and the client is struggling with significant symptoms of depression, including suicidal ideation. He is also suffering a significant traumatic brain injury that has resulted in cognitive issues, as well as emotional ability that has at times resulted in angry, verbal outbursts.

Dr. Mermigis also stated:

He has already suffered a significant brain injury. It is well recognized in the literature that further traumatic injury to the brain can have catastrophic effects on an individual who is already brain injured. In other words, the effects of brain injury are cumulative. There is some concern that if he is assaulted or otherwise injured while in prison, where the injury is to his head this would result in brain trauma that can have catastrophic effects on his cognition and his psychological status.

[8] Mr. Chislett also filed a report from his physician, Dr. Milan Unarkat, dated September 30, 2015. The doctor referred to Mr. Chislett’s attendances at various medical specialists including occupational therapy, speech therapy as well as a rehabilitation worker. Dr. Unarkat outlined that incarceration would be a barrier to Mr. Chislett’s progress.

Criminal Record

[9] Mr. Chislett has a criminal record for break and enter and theft. On January 12, 2010, he received 24 months’ probation.

Background Regarding Section 96 of the Criminal Code

[10] Before considering the constitutional application of Mr. Chislett, a consideration of the origins of s. 96 is appropriate.

[11] Section 96 became a part of the Criminal Code through the Firearms Act, S.C. 1995 c. 39. The history of that legislation was reviewed by the Supreme Court of Canada (SCC) in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. In Nur, the focus of the court’s attention was s. 95 which also imposed minimum sentences which had been increased by subsequent amendments to the Firearms Act, increasing the minimum sentences for s. 95 offences. No such increases occurred with s. 96 which continues to have a minimum sentence of one year with a maximum sentence of ten years.

[12] In addition to Nur, the SCC has also had an occasion to review mandatory minimum sentences in R. v. Lloyd, 2016 SCC 13, 396 D.L.R. (4th). That case involved the constitutionality of a one year mandatory minimum sentence in connection with s. 5(3) (a)(i)(D) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. The court found that the one year mandatory minimum sentence violated the guarantee against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms and further found that the violation was not justified under s. 1.

[13] At paras. 22-24 of Lloyd, the court referred to its previous jurisprudence in Nur and provided the following framework for analysis of applications challenging minimum sentences:

The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe s.12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para.77

A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a higher level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.

The Rough Scale of the Appropriate Sentence

[14] The one year mandatory minimum for s. 96 offences has been in place since 1995. In R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 75, the court provided this guidance on mandatory minimums:

By fixing a minimum sentence, particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiated completely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Therefore, in my view, the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so called “best” offender whose conduct is caught by these provisions.

[15] In R. v. Vader, 2013 ONSC 109, 2013 CarswellOnt 1960, Lauwers, J. considered an offender who had a criminal record and was found guilty of a number of gun-related offences. With respect to the range of sentences for s. 96 offences, Lauwers J. stated at para. 27: “I find that the appropriate range of sentence in relation to the five counts of possession of firearms obtained by crime is one to two years, which I fix at 1.5 years, also in recognition of the mitigating factors…”

The Crown’s Position

[16] The Crown’s position is that a one-year minimum sentence is the appropriate sentence for this offender. The Crown indicates it is sympathetic to the plight that Mr. Chislett now finds himself in and but for his chronic injuries the Crown would have sought a much higher global sentence for this and the other four offences.

The Defence’s Position

[17] The Defence’s position is that a one-year sentence is a cruel and unusual punishment for Mr. Chislett in all the circumstances and an appropriate sentence is a conditional sentence with strict terms of house arrest and electronic monitoring if so ordered.

[18] The Defence further submits that based on a number of hypotheticals advanced by it a one-year sentence is grossly disproportionate for this offence under the circumstances.

[19] I am satisfied that the one-year sentence suggested by the Crown falls within the range of appropriate sentences for Mr. Chislett given the presence of the mitigating factors previously discussed.

[20] I will now consider the three hypotheticals advanced by the Defence as well as the Crown’s comments with respect to each.

Does the Mandatory Minimum Sentence Infringe s. 12 of the Charter?

[21] The two-step analysis suggested by the SCC in Lloyd requires the court to first determine what constitutes a rough scale of an appropriate sentence. Then the court must ask whether the mandatory minimum requires the imposition of a sentence that is grossly disproportionate to the offence and its circumstances. See Lloyd at para. 23. I am satisfied that a one-year sentence does approximate the rough scale of an appropriate sentence for the offence of possessing a firearm knowing it was obtained by the commission of an offence.

[22] The second step is to consider whether the imposition of a mandatory minimum sentence is grossly disproportionate to the offence and the circumstances. In R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 at para. 78, Doherty J.A. listed the following as factors that ought to be considered in this analysis:

(a) The gravity of the offence;

(b) The personal characteristics of the offender;

(c) The particular circumstances of the case;

(d) The actual effect of the punishment on the individual;

(e) The penological goals and sentencing principles reflected in the challenged minimum;

(f) The existence of valid effective alternatives to the mandatory minimum; and

(g) A comparison of punishments imposed for other similar crimes.

(a) The Gravity of the Offence

[23] The elements of a s. 96 offence are that the offender is in possession of a firearm knowing it was obtained by the commission of an offence. Mr. Chislett broke into a family home, forced his way into a locked gun cabinet, strapped the weapon to a motorcycle and stole it from the garage.

[24] Mr. Chislett not only knew the firearm was obtained by the commission of an offence, he was the individual who broke into the residence, thereby committing the underlying offence. Under these circumstances, I find that this offence tends toward a higher level of seriousness.

(b) Particular Circumstances of the Offence

[25] The Agreed Statement of Facts sets out in some detail the circumstances of this offence as it unfolded. I have no hesitation in finding that Mr. Chislett’s conduct attracts a high level of moral blameworthiness.

(c) Personal Characteristics

[26] There is no doubt that Mr. Chislett has suffered significant psychological injuries as a result of the accident. He was air-lifted from the scene and has had on going medical and psychological treatments since the date of the accident. But it must be remembered that these circumstances were not in existence when he broke into this home, they were created by his own criminal conduct when he stole a motorcycle and crashed it.

[27] Much of his concern about incarceration revolves around his treatment while in custody, his anger management issues and that the potential for altercations may create a danger of further head injury worsening his current diagnosis. His previous suicidal ideations and other emotional issues may require him to be segregated from the general population having a further negative effect on his psychological recovery.

Peter Lalonde

[28] In response to this issue the Crown called as a witness Peter Lalonde who is the Manager of Offender Programming at Central North Correctional Centre (CNCC). Mr. Lalonde indicates that he has been Manager of Offender Programming since 2012 and a Probation Officer since 1999. CNCC houses 900-1000 individuals with approximately 500-600 inmates serving sentences. The balance of the population are awaiting trial. The institution is serviced by 600 staff.

[29] When inmates enter the institution they are classified as to their vocational abilities, educational needs and substance abuse needs. The inmates are classified as soon as they enter and when they are triaged, those presenting suicide risks are screened and watched for safety. There are approximately 40-50 program staff including 10 social workers, 3 nurses, 3 rehabilitation officers, 3 abuse counsellors, and 2 recreational officers. There are two medical doctors on duty each week. In addition a psychiatrist spends approximately 35 hours per week at the institution. Some inmates may be moved to a protective custody range. Some inmates requiring regular medical care such as dialysis are given temporary absence to attend a hospital for such treatment. Other forms of temporary absence are in the discretion of the parole board. Mr. Lalonde’s evidence was that, on average, inmates are released after serving two-thirds of their sentence.

[30] Some inmates with acute medical problems such as mental health issues may be referred to other institutions such as St. Lawrence Valley Correctional and Treatment Centre. This institution contains a medical unit for those inmates requiring ongoing medical care.

(d) The Effect of the Punishment on Mr. Chislett

[31] The Defence submits that the incarceration of Mr. Chislett will have a negative effect on his psychological recovery and poses the potential for a risk of a further brain injury. In my view, those risks can exist with many other vulnerable inmates. I am satisfied based on the evidence of Mr. Lalonde that CNCC can accommodate the special needs of Mr. Chislett. He will be assessed on admission and will have access to nurses, a medical doctor and a psychiatrist if warranted. Mr. Chislett’s medical records as filed in this Application or as updated can and should be sent to the institution to form a part in his initial assessment.

(e) Sentencing Principles

[32] S.718 of the Criminal Code sets out the following objectives of sentencing:

i. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

ii. To deter the offender and other persons from committing offences;

iii. To separate offenders from society, where necessary;

iv. To assist in rehabilitating offenders;

v. To provide reparations for harm done to victims or the community; and

vi. To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims or the community.

[33] In R. v. Bressette, 2010 ONSC 3831, 221 C.R.R. (2d) 183, Desotti, J. considered a Charter application to declare s. 96 unconstitutional in circumstances involving an Aboriginal offender. The accused pleaded guilty to being in possession of a stolen rifle recovered as a result of a search warrant of his residence. Upon dismissing the Application, Desotti J. noted at para. 10 that “clearly the minimum mandatory provision targeting firearm related offences is a specific and calculated attempt by Parliament to reflect Canadian and community values and the harm that occurs as a result of the illegal use of firearms.”

(f) Comparison of Punishments Imposed For Other Similar Crimes.

[34] The Crown submits that the one year minimum sought here is at the low end of the range based on the particular circumstances of this offender. As previously noted in Vader, Lauwers, J. on the facts of the case before him had the following comments about the range of sentencing for s. 96 offences. As stated in para. 27: “I find that the appropriate range of sentence in relation to the five counts of possession of firearms obtained by crime is one to two years, which I fix at 1.5 years, also in recognition of the mitigating factors…”

[35] Neither counsel for the Crown nor Defence have brought forward any cases where offenders were sentenced to a period less than the minimum required by s. 96. As previously noted Desotti, J. dismissed an application to declare s. 96(2)(a) cruel and unusual punishment and a violation of s. 12 of the Charter.

Reasonable Hypotheticals

[36] Having considered those factors I now turn to consider the hypotheticals advanced by the Defence that may be applicable to persons other than Mr. Chislett.

[37] The basis for considering reasonable hypotheticals is grounded in the SCC’s decision in Nur. As the Chief Justice stated at para. 57 “the question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12.” The Defence has advanced three hypotheticals for the court to consider in this case.

[38] When considering hypotheticals the Court issued this note of caution at para. 62:

The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reported cases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.

Hypothetical #1 – The Third Party Custodian

[39] The Defence advances a hypothetical whereby an individual discovers a weapon he/she knows to be stolen. The individual takes the weapon to prevent it from being used by the thief intending to safeguard it or determine how to return it. The Defence submits that a one-year sentence would be grossly disproportionate for this relatively blameless person.

[40] The Crown responds that this individual is not blameless since by taking the gun they are assisting the thief in evading the law thereby committing an offence worthy of punishment.

Hypothetical #2 – The Elderly Grandmother

[41] In this hypothetical, a grandmother receives a can of pepper spray which was legally purchased in the United States by her grandson who wants her to keep it for her own safety.

[42] The Crown submits that this scenario does not apply to s. 96. It is not clear that this pepper spray is illegal in Canada. I pause to note that s. 96 is an attempt based offence. The accused person must know that the weapon in their possession was obtained by the commission in Canada of an offence or by an act or an omission anywhere, that if it had occurred, would have constituted an offence.

Hypothetical #3 – Good Samaritan Neighbour

[43] In this scenario, an individual with a valid licence for an unloaded, restricted firearm safely stores the gun in a neighbour’s residence under circumstances where his own premises are no longer secure. The neighbour agrees to keep the firearm on a temporary basis knowing that there is an infraction because the gun owner’s licence did not permit it to be stored elsewhere.

[44] The Crown submits that the acquisition of a firearm without a proper licence does not constitute a firearm being obtained directly or indirectly by crime. The Crown’s position is supported by the Court of Appeal’s guidance in R. v. Jean, 2016 ONCA 137, 2016 CarswellOnt 2482. At paras. 13 and 14, the court considered previous jurisprudence and determined that no s. 96 offence occurs because the firearm was not acquired as a result of a crime.

Conclusion of Hypotheticals

[45] The Defence did not file any actual cases or scenarios based on the hypotheticals advanced. The hypotheticals must be “reasonable”. I am satisfied that the hypotheticals are speculative at best and are of no assistance in evaluating the constitutionality of this minimum sentence.

[46] As a result, the application to strike down this section is dismissed.

Victim Impact Statement

[47] As part of the sentencing hearing, the Crown filed a Victim Impact Statement from the homeowner, Michelle Strickland, indicating that the break-in of her residence traumatized her family. Her son could not sleep in his own room for several weeks. As she further stated:

I was absolutely terrified when the Barrie Police called me to ask if I had loaned my motorcycle to someone, or if my husband borrowed my motorcycle, leaving me to believe he was in an accident. …I did not know until I arrived home that someone had broken into my home, destroyed my bedroom, and completely destroyed my motorcycle.

[48] The homeowners received restitution through insurance.

Sentencing

[49] The aggravating factors of this case have already been set out, but I summarize them here:

(i) Mr. Chislett broke into a family home, ransacked the home and stole property, including a gun from a locked cabinet, as well as a motorcycle from the garage;

(ii) Mr. Chislett, although a young offender, has a criminal record for break and enter, and was previously subject to a probation order.

[50] The mitigating features of Mr. Chislett’s case are the following:

(i) he has pleaded guilty to these offences and has therefore shown remorse for his crimes;

(ii) he has a supportive family;

(iii) he has suffered serious brain injuries as a result of the collision which occurred while he was leaving the scene on the stolen motorcycle. No doubt he will require ongoing treatment for these injuries.

Global Sentence

[51] The defence sought a conditional sentence in the circumstances of this case on the basis that the court should find the one-year minimum sentence for s. 96 offences to be unconstitutional. That application was unsuccessful. The Crown submits that a one-year sentence is fit and appropriate in these circumstances, having considered the guilty pleas and the personal circumstances of Mr. Chislett now finds himself in.

[52] I accept the Crown’s submission that a one-year sentence is a fit sentence for this offender in these circumstances. His plea of guilty and ongoing medical issues are factors which suggest that the sentence should be at the low end of the range for such an offence. Under the circumstances, I impose a global sentence of one year imprisonment. The sentences can be broken down as follows:

(i) Count 1 (s. 98(b)(1)) – break and enter a place and stealing a firearm – one year;

(ii) Count 4 (s. 333.1) – steal a motorcycle – six months, concurrent;

(iii) Count 9 (s. 96(1)) – possession of a firearm, knowing it was obtained by the commission of an offence – one year, concurrent;

(iv) Count 11 (s. 811) – breach of recognizance – 30 days concurrent;

(v) Count 13 (s. 249(1)(a)) – operation of a motor vehicle, dangerous – 30 days concurrent.

[53] In addition to this sentence, I impose the following ancillary orders:

(i) During your period of incarceration, there shall be no contact with the victims of this break-in, namely, John Pawly, Michelle Strickland, Sarah Strickland, and Dylan Pawley;

(ii) There shall be a probation order requiring you to serve a two-year period of probation upon your release from custody. In addition to the usual probation terms, you shall not contact the victims, namely, John Pawly, Michelle Strickland, Sarah Strickland, and Dylan Pawley, nor be within 100 metres of their known place of residence or employment;

(iii) There shall be a DNA order;

(iv) There shall be a s. 110 weapons prohibition order for 10 years;

(v) There shall be a driving prohibition order under s. 259(1)(a) of the Code, for a period of two years.

[54] I conclude by saying that all of Mr. Chislett’s relevant medical records, including any updates now available, should be sent with him as part of his warrant for committal. This offence occurred on September 10, 2013. The mandatory victim surcharge came into force on October 24, 2013. I therefore exercise my discretion to impose a surcharge in the circumstances here of $200 in total.

Delivered orally on December 8, 2016

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.