Her Majesty the Queen v. Ashley Fenton, 2017 ONSC 5945

CITATION: R. v. Fenton, 2017 ONSC 5945

COURT FILE NO.: CR-17-70000542-0000

DATE: 20171006

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ASHLEY FENTON

D. Ishak, for the Crown

S.M. Hinkson, for Ms. Fenton

HEARD: September 29, 2017

REASONS FOR SENTENCE

SCHRECK J.:

1Ashley Fenton had a sawed-off shotgun and a number of shotgun shells which she kept in a knapsack in the laundry room of the apartment she shared with her two children. One evening, she showed it to a friend of hers. The following day, she had a falling out with the friend and threatened to kill him. Following a jury trial, Ms. Fenton was convicted of one count of possession of a firearm with readily accessible ammunition while she was not the holder of an authorization or licence permitting such possession, contrary to s. 95(1) of the Criminal Code, and one count of threatening, contrary to s. 264.1.¹ The Court must now determine the appropriate sentence.

I. THE OFFENCES

A. Possession of Prohibited Firearm

2Destin Safranko, the main Crown witness, had at one time been a friend of Ms. Fenton, whom he met through her then boyfriend, William Donovan. On November 16, 2015, Mr. Safranko was staying at the apartment Ms. Fenton lived in with her two children. In the evening, after the children went to bed, Ms. Fenton told Mr. Safranko that she had a “new toy” that she wished to show him. She retrieved a knapsack from the laundry room and opened it. Mr. Safranko looked inside and saw a sawed-off shotgun as well as a large number of shotgun shells. Ms. Fenton then replaced the knapsack in the laundry room.

3No firearm was ever seized. However, Ms. Fenton’s phone was seized after her arrest and on it was a photograph of a sawed-off shotgun which Mr. Safranko testified looked like the one he had seen. A firearms expert who testified at trial told the jury that the gun in the photograph resembled a Remington 812 shotgun which had had the barrel and stock removed. This firearm was capable of discharging one shotgun shell at a time and had to be reloaded between shots. Shotgun shells contain shot which spreads when fired.

B. Threatening

4Mr. Safranko testified that on November 17, 2015, the day after he was shown the gun, Ms. Fenton and Mr. Donovan telephoned him. They threatened to kill him and told him, among other things, that they were looking for him and would “blow his brains out”. According to Mr. Safranko, the reason for this was that he had stolen some purses from Ms. Fenton’s apartment.

5In the early morning hours of November 18, 2015, somebody discharged a shotgun at the door of the apartment where Mr. Safranko was staying with his grandparents. Although Ms. Fenton was charged with discharging a firearm and firearm possession offences in relation to this incident, the jury acquitted her on those counts. As a result, in sentencing Ms. Fenton I am assuming that she had nothing whatsoever to do with this incident. The Crown filed a victim impact statement by Mr. Safranko’s grandparents outlining the effect this incident had. While I have no doubt that this had a terrible impact on them, given the jury’s finding I cannot consider this in determining a fit sentence.

II. THE OFFENDER

A. Background and Current Situation

6Ms. Fenton is 31 years old. She is the single mother of two children, aged 13 and three. The author of the Presentence Report states that “Collateral sources indicate she is a great mother, loving mother, a hard worker and always looking out for her family.” The Presentence Report author noted that Ms. Fenton “loves and cares greatly for her children”. I will return to this topic later in these reasons.

7Ms. Fenton was born and grew up in Toronto and apparently had a good childhood. She continues to enjoy the support of her family. I note that her mother attended the trial each and every day.

8Ms. Fenton completed a management and accounting program at the Toronto School of Business and also took some courses in the law clerk program at Seneca College. Her current plan is to take courses in order to qualify as a personal support worker. Since 2011, Ms. Fenton has been employed by the same company as a courier, a job in which she is entrusted with confidential and important documents. There is no suggestion of any substance abuse issues.

B. Criminal Record

9These are not Ms. Fenton’s first convictions. In July 2008, she was convicted of assault causing bodily harm and failing to comply with a recognizance, for which she received a suspended sentence and two years’ probation after being credited with 155 days of presentence custody. As well, there was a firearms prohibition pursuant to s. 110 of the Criminal Code for a period of 10 years which was in effect at the time she committed the offences before the Court.

10In December 2008, Ms. Fenton was convicted of obstructing a peace officer, for which she was fined $50 in addition to 76 days of pre-sentence custody. The facts of the obstruct peace officer conviction are troubling. Police officers conducting a murder investigation attended Ms. Fenton’s home to interview her as a potential witness. She told the officers that she was alone in the apartment. After the officers heard a noise, she then told them that her brother was in the apartment. This was not true. In fact, two individuals for whom there were first degree murder arrest warrants were in the apartment, both of whom were arrested. A subsequent search revealed a handgun and a bullet proof vest. There is no evidence that Ms. Fenton knew that the gun was there, although the vest was in plain view. As well, there is no evidence that Ms. Fenton was aware that the two men were wanted for first degree murder, although she was aware that the police were looking for them.

III. POSITIONS OF COUNSEL

11Both counsel agree that a penitentiary sentence is warranted in the circumstances, although they disagree as to its duration. The Crown submits that four years is appropriate while defence counsel submits that three years is appropriate. Both also agree that she should be credited for 15 days of presentence custody on a one-and-a-half-to-one basis for a total of 23 days. Counsel agree that there should be some credit for time spent subject to restrictive bail conditions, but disagree as to the amount of credit.

IV. ANALYSIS

A. Aggravating and Mitigating Factors

12There are a number of aggravating factors in this case. The firearm and the readily accessible ammunition were kept in the apartment where the children lived. At the time of the offence, Ms. Fenton was subject to a firearms prohibition. She has a prior record, including a conviction for a violent offence. The threat was made in circumstances where the victim knew that Ms. Fenton was in possession of a firearm with which the threat could be carried out.

13There are also mitigating factors. Ms. Fenton has a consistent and good work history and can clearly be a contributing member of society. She has a supportive family. While she has a record, there is a significant gap in it.

B. The Sentencing Range

14Sentences for firearms offences tend to be severe, and deservedly so. There is no legitimate reason for possessing the type of firearm Ms. Fenton had, particularly in an urban environment. The only purpose of such a weapon is to intimidate, harm or kill another human being. In fact, it can reasonably be inferred that this particular firearm was used for that purpose on the door to Mr. Safranko’s grandparents’ apartment, although the jury was not satisfied that Ms. Fenton was involved in that incident.

15Crown counsel provided the court with a number of sentencing decisions which he submitted supported his request for a sentence of four years. I will not review all of them, only those which in my view have some application to the facts of this case.

16In R. v. Nur, 2015 SCC 15, the accused was carrying a loaded handgun with an oversized magazine when he fled from the police and threw it into a public parking lot. He was youthful, had no prior record, and pleaded guilty. A sentence of 40 months imposed by Code J. at trial was upheld by the Ontario Court of Appeal and the Supreme Court of Canada.

17R. v. Mansingh, 2016 ONSC 94 also involved the possession of a loaded handgun in public while fleeing from the police. The accused was convicted following a trial. An aggravating factor was that he was also involved in drug trafficking. He had no prior record and good rehabilitative prospects. Goldstein J. imposed a sentence of 43 months.

18In R. v. McKenzie, 2016 ONSC 5025, the accused was found in possession of a handgun with readily accessible ammunition after a search warrant was executed on his residence. As in this case, the firearm was carelessly stored and there were children living in the home. The accused had a criminal record. As in this case, he was subject to a firearms prohibition but unlike in this case, he was charged with and convicted of violating that prohibition order. He was 33 years old, had a good work history, and was described as a loving father. Campbell J. imposed a sentence of three years for possession of the firearm and six months consecutive for breaching the prohibition order.

19While no two cases are alike, in my view McKenzie bears the most similarity to this case. The accused are of similar ages, have good work histories and are described as good parents. Both have records, but with some gap in them. Both were subject to firearm prohibitions. The accused in McKenzie appears to have had a difficult childhood and substance abuse issues, factors which are absent in Ms. Fenton’s case.

C. The Relevance of the Type of Firearm

20I note that in all of the cases cited by the Crown, the firearms at issue were semi-automatic handguns. This case involved a sawed-off shotgun. The Crown submits that this difference is irrelevant. I do not entirely agree. Semi-automatic weapons can be fired several times in quick succession without having to be reloaded, while the firearm in this case can only be fired once and must be reloaded before it can be fired again. In my view, while both types of firearms can cause devastating consequences, the potential for harm is greater in the case of semi-automatic handguns. The potential for harm as a factor in sentencing is well-established in the context of drug trafficking sentences, where sentencing ranges depend on the degree of dangerousness of the drug in question: R. v. Sidhu, 2009 ONCA 81 at paras. 11-14. In my view, the same principle applies with firearms offence. This is why sentences tend to be higher in the case of fully automatic weapons: R. v. McKenzie, 2011 ONCA 42 at para. 15; R. v. Nascimento, 2014 ONSC 6739 at para. 30. The few cases I have found involving sentencing for possession of sawed-off shotguns appear to bear this out. In R. v. Poirier, 2014 ONCA 875, a sentence of two years and seven months for a s. 95(1) offence involving a sawed-off shotgun was upheld. A two-year sentence was imposed for a similar offence in R. v. Molin, 2015 ONSC 7045.

21All of that said, while I am of the view that some distinction should be made between offences involving semi-automatic handguns and those involving sawed-off shotguns, both types of offences are very serious and require significant sentences that emphasize the principles of denunciation and general deterrence.

D. The Appropriate Sentence for Possession of a Prohibited Firearm

22Ms. Fenton is an enigma. On the one hand, she appears to be an intelligent young woman with a consistent employment history at a responsible job who does her best to care for her children, whom she loves. On the other hand, she appears to be drawn towards fraternizing with individuals engaged in a criminal lifestyle. She harboured individuals wanted for murder in her apartment. There was some evidence during the trial that her then boyfriend, Mr. Donovan, was involved in human trafficking. The complainant, Mr. Safranko, who had been her friend, also had a criminal history. For whatever reason, Ms. Fenton decided to keep a sawed-off shotgun and ammunition in her home. The circumstances in which she showed it to Mr. Safranko suggest that she thought possessing this weapon was somehow impressive.

23While it appears that Ms. Fenton loves her children, she must have known that keeping a shotgun and ammunition in the home she shared with them put them in danger. She must also have known that she was subject to a prohibition order and if she was ever caught with such a weapon, she would face a lengthy prison sentence and thereby deprive her children of their mother. For some reason, Ms. Fenton chose to risk paying that heavy price. While I do not doubt that Ms. Fenton loves her children, she chose to put her own desire for whatever motivated her to commit these offences before the needs of her children. If she truly wishes to be a good mother to her children, she must do better in the future.

24As mentioned earlier, in my view the facts in McKenzie are similar to the facts in this case. Ms. Fenton did not have the same challenging life experiences as did the accused in that case. On the other hand, that case involved a semi-automatic handgun. While the accused in McKenzie was also also received a consecutive sentence for violating a firearms prohibition, the fact that he was subject to such an order was nonetheless considered as an aggravating factor in relation to the s. 95(1) offence: McKenzie, at para. 18. In my view, when all of the factors are considered, the same sentence as was imposed in McKenzie, imprisonment for three years, is appropriate in this case.

E. The Appropriate Sentence for Threatening

25Crown counsel submits that the threatening offence is distinct from the possession offence and should result in a consecutive sentence. I agree.

26Threatening is a hybrid offence. In most cases, the Crown proceeds summarily and sentences range from non-custodial sentences to relatively short periods of incarceration. That range does not change because the Crown elected to proceed by indictment: R. v. Solowan, 2008 SCC 62 at paras. 10-15.

27The aggravating factor in this case is that when Ms. Fenton told Mr. Safranko that she would “blow his brains out”, she knew that he was aware that she had the means to carry out the threat. Having regard to this aggravating factor and Ms. Fenton’s antecedents, but also having regard to the principle of totality, the appropriate sentence on this count is imprisonment for 60 days, to be served consecutively. Therefore the total sentence before credit is given for pre-trial custody and time spent subject to restrictive bail conditions is 38 months.

F. Credit

(i) Presentence Custody

28The parties agree that Ms. Fenton should receive 23 days credit for the 15 days she spent in pre-sentence custody.

(ii) Time Spent on Bail

29Ms. Fenton spent one year and 20 days subject to house arrest. She was only permitted to leave her home in the presence of her sureties. After that, she was subject only to a curfew for approximately nine and a half months.

30Relying on McKenzie, Crown counsel submits that Ms. Fenton should be credited at a rate of one day for every 4.25 days spent subject to house arrest. He agrees that some credit should be given for the time spent subject to a curfew, but at a reduced rate.

31Counsel for Ms. Fenton submits that she should get a credit of one day for every four spent on house arrest and another two and a half months for the time spent subject to a curfew.

32It is well accepted that house arrest constitutes a significant liberty restriction and that some credit should be given for significant periods of time spent subject to such conditions: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.) at paras. 29-33. There is, however, no set formula for determining the amount of credit to be given: R. v. Phronimadis, [2006] O.J. No. 3992 (C.A.) at para. 2. For bail involving house arrest, credit of one day for every four to 4.5 days is not uncommon: R. v. K.M, 2017 ONSC 4769 at para. 25; R. v. Wawrykiewicz, 2017 ONSC 3527 at para. 45; R. v. Strong, 2017 ONSC 3163 at para. 88; R. v. Reis, 2017 ONSC 1961 at para. 65; R. v. Rebelo, 2017 ONSC 1036. In this case, house arrest must have had a serious impact on Ms. Fenton, given that she is the single mother of two children. While the time spent on a curfew was far less restrictive, the parties agree that some credit should be given. In all the circumstances, I am prepared to credit Ms. Fenton a total of five months for the presentence custody as well as the time she spent on bail. The total sentence is therefore one of 33 months.

G. Ancillary Orders

33Pursuant to s. 109 of the Criminal Code, there will be an order prohibiting Ms. Fenton from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

V. DISPOSITION

34Ms. Fenton is sentenced to imprisonment for three years, or 36 months, for possession of a prohibited firearm and 60 days, or two months, for threatening, to be served consecutively. She is to be credited five months for the time she spent in pre-sentence custody and while subject to restrictive bail conditions. As a result, the sentence imposed is 33 months.

Footnotes

1. 1There were also convictions for offences contrary to ss. 91(2) and 92(1) of the Code in relation to the same firearm which have been stayed pursuant to the rule against multiple convictions.