Court File and Parties

COURT FILE NO.: CR-18-40000132-0000 DATE: 20181102 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – IAN BULLENS Defendant

Counsel: Sophina James, for the Crown James Frost, for the Defendant

HEARD: September 13 and November 2, 2018

Reasons for Sentence

A.J. O’Marra J.

[1] Ian Bullens was found guilty after trial by jury of offering to transfer a firearm on May 8, 2015, contrary to s. 99(1) of the Criminal Code. Subsequent to his being found guilty, Mr. Bullens elected to be tried by a judge alone for the offence of having breached a weapons prohibition order issued October 23, 2007 by the Alberta Court of Justice, contrary to s. 117.01(1) of the Criminal Code. He was found guilty.

[2] He is here today to be sentenced on both offences.

Background of the Offences

[3] During a police Guns and Gang project investigation, Mr. Bullens’ private communications were intercepted during a judicially authorized intercept on May 8 and 9, 2015. Over the course of several telephone calls Mr. Bullens offered to sell a firearm and ammunition in his possession to a number of individuals for $2,500. Further, at the time of the offence he was subject to a s. 109 firearms/weapons and ammunition prohibition order imposed for life as a result of prior convictions for firearm related offences in 2007 for which he received a global sentence of five years and 2 months.

[4] Based on the content of the intercepted communications, during which Mr. Bullens and his prospective buyers used coded language in reference to the firearm and ammunition, and discussions of meeting up at a specified location to effect the transaction, I am satisfied that not only was Mr. Bullens in possession of a restricted or prohibited firearm and ammunition when his offers to transfer were made, but also that the sale transaction had been completed.

Background of Offender

[5] Mr. Bullens is 36 years old. He has a criminal record which consists of the following:

[6] October 6, 2004 in Calgary, Alberta he was found guilty of careless use of a firearm, weapon, prohibited device or ammunition and possession of a scheduled substance for which he received one day in jail and a discretionary prohibition order under s. 110 of the Criminal Code for 10 years and a $600 fine or in default 12 days jail.

[7] On October 3, 2007 in Calgary, Alberta he was found guilty of (1) possession of prohibited or restricted weapon knowing its possession is unauthorized; (2) possession of a restricted firearm with ammunition for which he received 2 years’ incarceration on each count concurrent; (3) possession of a schedule 1 substance for the purpose of trafficking for which he was sentenced to 3 years and 2 months’ incarceration to be served consecutively; (4) fail to comply with recognizance; (5) possession of a schedule 1 substance for which he received 30 days on each count; and (6) trafficking in a scheduled substance contrary to s. 5(1) of the CDSA for which he received 3 years and 2 months’ incarceration. Further, he was ordered not to possess any firearm weapons or ammunition pursuant to s. 109 of the Criminal Code for life. The global sentence imposed was 5 years and 2 months, with 4 months pre-sentence custody credit.

[8] Mr. Bullens was born in Toronto. His mother, at an early age, gave birth to him and left him in the care of relatives while she worked to build a more stable life. His father was not present in his early years and did not become involved with him until later in adult life. He lived for a few years in Jamaica with relatives and then in Ontario until he was reunited with his mother in Alberta at the age of 12. He dropped out of high school and left his mother’s home at 17. Within a short time he became involved with a negative criminal peer group. It was noted in the pre-sentence report prepared in this matter:

He informed that he spent a lot of time partying and indicated that he was “all over the place”. He stated that he had worked as a DJ and would regularly meet people which he stated, “opened the doors to other things”. He revealed that the desire to make money led him to drug dealing, and once he became imbedded in the lifestyle, “guns came into the picture”.

[9] He admitted that he became involved with a street gang while in Calgary called “Clippers”, which had initially started as a promotional name for music and then shifted to gang activity. The gang he was involved was at the forefront of gang turf wars and violence in the city of Calgary at the time:

The subject indicated that he became involved with the criminal justice system, and despite everything that was happening he continued to immerse himself in criminal activity. He stated, “instead of being content with what you need to get by, you keep thinking you need more” and the appeal of more money outweighed the repercussions of his choices.

[10] While incarcerated, Mr. Bullens obtained his high school equivalency. Since his last period of incarceration he has been employed in a number of activities, initially working with a housing company in Thunder Bay, then in the Brampton area where he started a tanning business with his ex-fiancé before giving up the business after the end of their relationship. He continued to work through various employment agencies as a general labourer or operating a forklift. Most recently he was employed with a construction company.

[11] He has three children, ages 4, 13 and 14 with three different women. While there are no formal court orders, he stated that he provides financial support regularly to all of his children and maintains a cordial relationship with their mothers. He is in a relationship currently with the mother of his 13 year old daughter, who describes him as “being a good father to their child”, and while he has been on bail pending this matter he has been consistently employed and staying out of trouble.

[12] With respect to this matter, it indicates in the report that he “accepted responsibility for surrounding himself with individuals involved in criminal activity, and expressed remorse for thinking about returning to a pro-criminal lifestyle to support himself financially”. He says that he regrets the bad choices that he has made and “wants to be a better man, better father, better son, just a better well-rounded person…once I get that chance again – I will be able to work hard”. The report indicates he continues to have the support of his mother, half-sister, girlfriend and father who has reconnected with him.

[13] In the pre-sentence report, it indicated that in his early life he smoked marijuana daily and used “ecstasy” once in a while but denied use of other illicit substances. He claimed his substance use stopped before his federal incarceration.

[14] However, at the conclusion of sentencing submissions September 13, 2018, Mr. Bullens, when given the opportunity to address the court pursuant to s. 726 of the Criminal Code, stated he was addicted to opiates at the time of the offences and has struggled with addiction for a number of years.

[15] The matter was adjourned to give counsel the opportunity to address the issue of Mr. Bullens’ stated addiction and its significance, if any as a factor to consider on sentencing.

[16] On the return date, institutional health records were provided that show he had required medication for withdrawal on admission. In addition, a treating physician provided a note that he prescribed Mr. Bullens methadone treatment for opiate addiction from January 2013 to December 2014.

[17] Given a further opportunity to allocate prior to being sentenced today, Mr. Bullens stated that at the time of his offence he was taking opiates, which affected his judgment and choices. I accept that Mr. Bullens had an opiate addiction at the time of his offence. However, not as a motivation to commit the offence of offering to transfer a firearm.

Position of the Parties

[18] The Crown submits that an appropriate sentence would be in the range of 9½ to 12 years for both the offences of offering to transfer a firearm and breach of prohibition order, less pre-sentence custody of approximately 19 months. However, based on the principle of totality the Crown seeks a period of incarceration in the range of 8 to 10 years. Further, the Crown seeks an order to obtain sampling for DNA purposes and a further s. 109 firearm prohibition order for life.

[19] The defence acknowledges that Mr. Bullens should be sentenced for the offence of offering to transfer a firearm as a subsequent offender pursuant to s. 99(2)(b) in the range of 5 to 6 years. Further, he acknowledges that the breach of prohibition order should be served consecutively. Counsel submits that one year incarceration would be appropriate for the breach. Counsel further submits that Mr. Bullens should be given credit for pre-sentence custody on a 1 to 1.5 basis for the equivalent of approximately 19 months. In addition, he submits that due to stringent house arrest conditions, imposed while on bail, a further credit of approximately 3 to 5 months should be granted, reducing the total sentence to between 4½ to 5½ years’ incarceration.

[20] Counsel takes no issue with respect to the ancillary order requests made by the Crown.

Relevant Sentencing Principles

[21] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of a number of objectives.

[22] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who might be similarly inclined, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[23] Further, the sanction imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The total sentence should not be unduly harsh. The court should also take into consideration that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[24] Our courts have stressed time and time again that sentences imposed for firearm offences must further the sentencing goals of denunciation, deterrence and the protection of the public. In R. v. Danvers (2005), 199 CCC (3d) 490 (ONCA), a murder case involving the use of a firearm, Armstrong J.A. stated at para. 78 the following:

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal firearms in the greater Toronto area is a cause for major concern in the community and must be addressed.

[25] In R. v. Brown, 2010 ONCA 745 at para. 14 the court reiterated: “Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearm offences must further the sentencing goals of denunciation, deterrence and protection of the public.”

[26] In R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409, K.L. Campbell J. noted aptly at para 26:

The unlawful possession of loaded firearms in the Toronto region is a very serious problem, and particularly results in tragic consequences. Accordingly such crimes must be met with custodial sentences that are proportional to the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes and adequately protect the public…Parliament has decreed that when these types of inherently dangerous firearm offences are committed by repeated offenders, the mandatory minimum term of imprisonment is 5 years’ imprisonment. When those inclined to possess loaded illegal firearms are not discouraged from such perilous criminal activity by shorter terms of imprisonment the striking need for a more effective measure of specific deterrence requires the imposition of a significantly longer term of incarceration in order to adequately protect the public. See: Regina v. Dene and Telfer, [2010] O.J. No. 5192 (SCJ) at paras 6-16, 19, 34-38; aff’d. 2010 ONCA 796, at paras 8-9; Regina v. S. (I.) and M. (M.), 2011 ONSC 3303, [2011] O.J. No. 3052.

[27] The decision in Brown is particularly instructive in terms of the range of sentence to consider in this case. Brown on pleading guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order was sentenced to five years’ and 6 months for the possession of a restricted firearm charge and one year concurrent for the breach of the possession of firearm prohibition order. On appeal, the Court of Appeal found the sentence to be “demonstrably unfit” and outside the range appropriate considering the nature of the offences and offender.

[28] While there are some differences in circumstances, such as the mitigating factor of Mr. Brown’s guilty plea and the aggravating factor of his very lengthy criminal record comparative to Mr. Bullens, the case provides useful guidance.

[29] Of significance, as in this case, it was a third firearm offence and breach of a firearms prohibition order. There, the offender had a much more extensive criminal record of some 34 convictions and at the time of arrest he was in Canada illegally after being deported to Jamaica following an earlier conviction. Unlike this case, however, the firearm and ammunition were seized at the time of Mr. Brown’s arrest and removed from circulation.

[30] The court repeated the need for an exemplary sentence at para. 13:

The circumstances of this offence and this offender called out for an exemplary sentence to achieve the sentencing goals of denunciation and deterrence. Particularly in light of Parliament’s decision to establish mandatory minimum sentence of five years’ imprisonment for a second or subsequent conviction for possessing a loaded restricted firearm, the global sentence imposed of five years and six months’ imprisonment in addition to presentence custody was not adequate to meet those objectives.

[31] The Court of Appeal substituted a total sentence of 8 years’ incarceration. The Court held that a sentence of 7 years, six months imprisonment, less six months credit for pre-sentence custody for a total of 7 years, plus one year consecutive for the firearm prohibition breach was appropriate.

[32] Lethal use of illegal handguns continues unabated in urban areas. Those possessing and/or using firearms, or as in this case, purveying an illegal firearm and ammunition, must be made aware that they will pay by the forfeiture of their freedom by lengthy terms of imprisonment.

Aggravating and Mitigating Circumstances

[33] The most aggravating feature in Mr. Bullens’ background is his criminal record and involvement with firearms on two prior occasions, the last of which attracted a lengthy sentence of in excess of 5 years in the federal penitentiary. Further, his present offence was committed, as was the last offence, while he was subject to a firearms/weapons/ammunition prohibition. It would also appear that Mr. Bullens returned to criminal activity for financial gain as in the past. Moreover, he was quite prepared to put another lethal illegal handgun into the community. He requires a sentence that addresses both specific and general deterrence.

[34] Although denunciation and deterrence are the primary objectives in such cases I am mindful that Mr. Bullens has some prospects for rehabilitation, having displayed his willingness to work while on bail and to provide some support of his children. From the contents of the pre-sentence report it would appear that Mr. Bullens has a supportive family and individuals in his life who speak favourably about him. He has acknowledged that he has made “bad choices” in the past, which may have been influenced by his drug addiction, and he plans a more positive future on his eventual return to the community. I accept that his acknowledgement of a drug addiction is also a positive indicator of rehabilitation potential.

Enhanced Credit

[35] With respect to the request for enhanced credit because he was on bail, the Court of Appeal in R. v. Downes, 2006 ONCA 555, [2006] O.J. No. 555, stated that an accused while subject to stringent pre-sentence bail conditions, especially house arrest, it is a relevant mitigating factor. However, the amount of credit will depend on a number of factors such as the length of time spent on house arrest, the stringency of the conditions, the impact on the offender’s liberty, the ability of the offender to carry on normal relationships, employment and other activity. Further, the onus is on the offender to establish those factors on a balance of probabilities.

[36] Here, there is a paucity of evidence to suggest any significant interference with his liberty while on bail. While on bail, he has been able to carry on normal relationships with his girlfriend and children, employment and other activities. As such, I see no basis to provide the enhanced credit as requested by counsel.

[37] However, due to the additional period of time on remand from the original sentencing date, September 13, 2018 in order for counsel to address the court’s query about Mr. Bullens’ stated addiction to today, credit for pre-sentence custody shall be increased to 22 months.

Sentence

[38] The sentences imposed in this instance must meet the objectives of denunciation and deterrence and must be exemplary in order to dissuade those who would possess or circulate illegal handguns in the community thereby making them available to those who would use them for criminal purposes, and which may result in the death or harm to others. Such offenders need to know that they shall pay dearly for their crimes by loss of liberty for very long periods of time. I take into account Mr. Bullens’ acknowledgement that at the time of his offence he was addicted to opiates and recognizes the need to control it to make better choices as indicative of his rehabilitation potential.

[39] In my view, in this case a fit sentence for the offence of offering to transfer a firearm is six years imprisonment, and with respect to the breach of the firearm prohibition order, a sentence of one year and six months to be served consecutively, for a total sentence of seven years and six months. However, Mr. Bullens shall be given pre-sentence custody credit of twenty-two months, resulting in a sentence of five years’ and eight months imprisonment to serve.

[40] In the result, Mr. Bullens is hereby sentenced to six years’ imprisonment for offering to transfer a firearm, one year and six months consecutive for breach of the prohibition order, less twenty-two months credit for pre-sentence custody, requiring him to serve a sentence of five years’ and eight months imprisonment.

[41] In addition, Mr. Bullens is subject to a firearm prohibition for life pursuant to s. 109(2)(b) of the Criminal Code, and an order for the collection of a bodily fluid sample for DNA analysis purposes pursuant to s. 487.051 of the Criminal Code.

A.J. O’Marra J. Released: November 2, 2018