R. v. Campbell, 2017 ONSC 7233
Court File No.: CR-17-40000828-0000 CR-17-40000829-0000
Date: 2017-12-05
Superior Court of Justice - Ontario
Re: R. v. Tyshan Campbell
Before: Schreck J.
Counsel: M. Passeri, for the Crown J. Budgell, for Tyshan Campbell
Heard: December 4, 2017
Endorsement
[1] Tyshan Campbell has entered guilty pleas to two counts of careless storage of ammunition, contrary to s. 86(1) of the Criminal Code, and one count of possession of ammunition contrary to a prohibition order, contrary to s. 117.01(1). The facts giving rise to the charges are as follows. On June 1, 2016, the police were conducting surveillance on Mr. Campbell as a result of some information they had received. Mr. Campbell was with a woman in a coffee shop and at one point picked up her purse. Both he and the woman were arrested and a loaded nine millimetre handgun was found in the purse. Mr. Campbell does not admit to being in possession of the handgun. Later that day, a search warrant was executed at a residence Mr. Campbell shared with his spouse. In the master bedroom, the police found six rounds of nine millimetre ammunition and 10 rounds of .45 calibre ammunition in the closet. An additional 10 rounds of .45 calibre ammunition was found in the garage. Mr. Campbell admits that he possessed all of this ammunition.
[2] Mr. Campbell is 34 years old. Before his arrest, he operated a cleaning business together with his spouse. He has three children who do not reside in Canada but who visit him on occasion. I am told that he has a supportive family.
[3] This is not Mr. Campbell’s first conviction. He has a criminal record dating back to 2001 for a number of offences, including robbery, trafficking in a schedule I substance, assault, unlawfully at large, personation with intent and failing to comply with a recognizance. Most significantly, he has prior convictions for firearms offences. In 2009, he was convicted of possession of a prohibited or restricted firearm with ammunition and sentenced to the equivalent of three years imprisonment. As well, an order was made pursuant to s. 109 of the Criminal Code prohibiting him from possessing firearms or ammunition. In 2011, he was again convicted of the same offence as well as of violating the s. 109 order. This time, he was sentenced to the equivalent of three years and nine months, and an additional s. 109 order was made. At the time of this offence, he was subject to both of these s. 109 orders as well as a 10-year s. 110 order that was made in 2007.
[4] Counsel have jointly submitted that the appropriate sentence in this case is a total of imprisonment for three years. Mr. Campbell has served the equivalent of 27 months in presentence custody, so it is proposed that an additional nine months be imposed.
[5] As I indicated to counsel, I have grave reservations about the joint submission. Mr. Campbell has been convicted of possessing firearms in the past not once, but twice. Although he did not possess a firearm on this occasion, he possessed a significant quantity of ammunition. Unless he intended to sell the ammunition, which is doubtful, his only conceivable purpose for possessing it was because he either had a firearm or intended to procure one. The ammunition and the firearms they were made for have no legitimate purpose. They were manufactured to kill people. It would appear that the sentences Mr. Campbell received in 2009 and 2011 have not convinced him that he ought to stay away from firearms and ammunition. It would appear that the court orders that were made prohibiting him from possessing these items have no meaning for him. In these circumstances, I am very concerned that the sentence that is being proposed will not succeed where the past sentences have failed in deterring Mr. Campbell from possessing these instruments of death. I am very concerned that once released, he will continue on the same course of conduct and sooner or later, somebody will die as a result.
[6] As the Supreme Court of Canada recently made clear in R. v. Anthony-Cook, 2016 SCC 43, courts ought to accede to joint submissions unless to do so would bring the administration of justice into disrepute or are otherwise not in the public interest. For the reasons I have explained, I have serious concerns about whether the proposed joint submission is contrary to the public interest.
[7] Having carefully considered the matter, although I continue to have reservations I am prepared to accede to the joint submission, with one exception which I will explain shortly. I have come to this conclusion for two reasons. First, Mr. Campbell has pleaded guilty to careless storage of ammunition and not possession of a firearm. The maximum penalty for careless storage in the case of a first conviction for the offence is imprisonment for two years, which necessarily limits the duration of any sentence I can impose. Second, Mr. Campbell has pleaded guilty. Although this is not a guilty plea, it is nonetheless an expression of remorse.
[8] The sentence will therefore be as follows. On each count of careless storage of ammunition, there will be a sentence of one year, to be served concurrently. On the count of violation of the s. 109 order, the sentence will be two years, to be served consecutively. Mr. Campbell is to be given credit of 27 months for the time he has spent in presentence custody and will therefore serve an additional nine months.
[9] In addition to that, there will be another s. 109 order prohibiting Mr. Campbell from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life.
[10] The one exception to the joint submission is that I am also placing Mr. Campbell on probation for a period of three years. In addition to the statutory conditions, he is to report to a probation officer once and thereafter as directed. He is not to possess any weapons as defined by the Criminal Code. He is not to be in the company of any person he knows to be in possession of a firearm or ammunition or any person he knows to have a criminal record for any firearms or ammunition related offences.
Schreck J.
Date: December 5, 2017