COURT FILE NO.: 16-40000534-0000 DATE: 20181114 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Philip Enright for the Crown
- and -
JOHN CHRISTOPHER DE VOS Anthony Moustacalis and Christen Cole for Mr. De Vos
HEARD: September 20, 2018.
REASONS FOR SENTENCE
CORRICK J.
Introduction
[1] On April 26, 2018, I found Mr. De Vos guilty of three counts of trafficking in firearms, contrary to s. 99(1) of the Criminal Code. Mr. De Vos appears before me today for sentencing.
[2] A conviction for trafficking in firearms carries a mandatory minimum sentence of three years in prison, pursuant to s. 99(2) of the Criminal Code. Mr. De Vos challenges the constitutionality of this section on the basis that a three-year prison sentence would be grossly disproportionate given the significant mitigating factors in this case. He argues that the imposition of the mandatory minimum sentence would violate his right protected by s. 12 of the Charter of Rights and Freedoms not to be subjected to any cruel and unusual treatment or punishment.
[3] Mr. Moustacalis, on behalf of Mr. De Vos, argues that a conditional sentence is the appropriate disposition for Mr. De Vos given the mitigating circumstances.
[4] Mr. Enright, on behalf of the Crown, argues that the court need not consider the constitutionality of s. 99(2) of the Criminal Code because three years is the appropriate disposition in this case. He is content that concurrent sentences be imposed on the three counts given that the three offences relate to a single course of conduct. He also seeks a number of ancillary orders, which are not contested by Mr. De Vos.
The Mandatory Minimum Sentence
[5] Considering the constitutionality of the mandatory minimum sentence in s. 99(2) is a two-step process. First, I must determine what the appropriate sentence is for Mr. De Vos having regard to the objectives and principles of sentencing. Then, I must consider whether the mandatory minimum sentence is grossly disproportionate to what I have determined to be the appropriate sentence [1].
[6] The mandatory three-year minimum sentence set out in s. 99(2) of the Criminal Code has been found to violate s. 12 of the Charter of Rights and Freedoms by a number of trial courts. Three of those decisions were rendered by judges of the Ontario Superior Court of Justice. [2] Mr. Enright indicated that he was unable to find any decision, which have held to the contrary. I have not been referred to any appellate decisions on point.
[7] I turn first then to determining the fit sentence in this case.
Circumstances of the Offences
[8] The details of the offences are set out in my Reasons for Decision dated April 26, 2018. Briefly, in April and May 2014, Mr. De Vos legally purchased three Glock handguns on two different occasions, and transferred them to Jonathan Gingras, his cocaine supplier, on two different dates. The firearms were ultimately trafficked by Mr. Gingras to two different people. In January 2015, police executed a search warrant in an unrelated investigation and seized a significant amount of cocaine and marijuana, and three handguns, including two that Mr. De Vos had purchased. The serial numbers on the firearms had been filed off. The third firearm purchased by Mr. De Vos has not been recovered.
[9] Mr. De Vos raised the defence of duress at trial. He testified that Mr. Gingras threatened him, and forced him to buy the firearms and hand them over. I rejected the defence on the basis that Mr. De Vos had a safe avenue of escape.
Circumstances of the Offender
[10] Mr. De Vos is 36 years of age. He is single, but engaged to be married. He has no criminal record. He has been steadily employed since leaving high school in grade 11. The court was provided with a letter from his current employer indicating that Mr. De Vos has worked as a housekeeping associate since July 2017. Prior to this job, Mr. De Vos worked for eight years in a warehouse. He left that employment, and took a $10 per hour pay cut because friends of Mr. Gingras also worked there.
[11] Mr. De Vos suffers from Type I diabetes. He is insulin-dependent, and requires two injections a day.
[12] He began using cocaine when he was 20 years old. He testified that at the time of these offences, he was using approximately $120 worth of cocaine every day or every other day. He has now beat his addiction and is drug-free.
[13] In the fall of 2013, he was depressed as a result of the break up of his relationship with his girlfriend. He took a large quantity of morphine pills together with alcohol. Following that incident, he moved in with his parents.
[14] Mr. De Vos has a very supportive family. His parents provided the court with a letter indicating how uncharacteristic the commission of these offences was for Mr. De Vos, how remorseful he is for his actions, and how Mr. De Vos’ drug use affected his behaviour.
[15] Mr. De Vos’ fiancée also provided a letter outlining the effect the offences have had on their relationship, as well as Mr. De Vos’ remorse. A letter from a family friend similarly spoke of how these offences were not in keeping with Mr. De Vos’ character, and how ashamed Mr. De Vos was of his crimes.
[16] Since his release on bail on July 3, 2015, Mr. De Vos has been subject to restrictive bail conditions. He has not been permitted to be outside of his home except for the purpose of going directly to and from work or school, or if accompanied by one of his sureties. Prior to November 2015, his sureties were his parents. In November, Mr. De Vos’ fiancée was added as a surety.
[17] Mr. De Vos has fully complied with the terms of his release. The strict bail conditions have significantly curtailed Mr. De Vos’ social life and have had a serious impact on his personal life. His social circle has diminished since being charged with these offences.
[18] Since his arrest, Mr. De Vos has co-operated with police. His co-operation resulted in the arrest and successful prosecution of Mr. Gingras. Mr. De Vos was the sole witness against Mr. Gingras. Without his evidence, there was no case against Mr. Gingras. Mr. Gingras was sentenced to six years in prison consecutive to the sentence he was already serving. Mr. De Vos testified under extreme fear from Mr. Gingras and his associates, and without any promise of preferential treatment on the charges he was facing.
Governing Sentencing Principles
[19] In determining a fit sentence for Mr. De Vos, I am governed by the sentencing principles set out in the Criminal Code.
[20] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:
- denouncing unlawful conduct,
- deterring the offender and others from committing crimes,
- separating offenders from society where necessary,
- assisting in the rehabilitation of the offender,
- providing reparations for harm done to the victim or to the community,
- promoting a sense of responsibility in the offender, and
- acknowledging the harm done to victims and the community.
[21] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.
[22] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:
- the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
- where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
- the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
- offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
- all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
Sentences Imposed in Other Cases
[23] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.
[24] Mr. Enright has provided the court with a number of decisions in support of his position that three years incarceration is the fit disposition. The decisions he relies on emphasize the need for the imposition of exemplary sentences for trafficking in firearms to attain the sentencing objectives of denunciation and deterrence.
[25] In R. v. Hewitt, 2018 ONCA 561 [3], the Court upheld a three-year sentence imposed on a first-time offender who pleaded guilty to transferring nine non-restricted long guns for money. Some of them had no serial numbers and at least one of them had been stolen. At the time of the transfer, the offender was subject to an order prohibiting her from possessing any weapons.
[26] As I have already indicated, Mr. Gingras was sentenced to six years in prison having been found guilty of six counts involving the possession and transfer of the three handguns purchased by Mr. De Vos. Mr. Gingras had a serious criminal record, which included numerous weapon-related convictions.
[27] The remaining decisions referred to by Mr. Enright involve the transfer of substantially more firearms and resulted in substantially higher sentences. For example, 43 firearms were involved in the case of R. v. Winchester, 2014 ONSC 2591 [4]. The offender purchased 47 firearms and transferred 43 of them for profit. He was sentenced to eight years in prison.
[28] The offender to whom Mr. Winchester transferred the 43 firearms was sentenced to nine years in R. v. Marakah, 2015 ONSC 1576 [5]. The sentencing judge found that Mr. Marakah was engaged in a commercial enterprise to distribute firearms.
[29] In R. v. Green, 2015 ONSC 6290 [6], Justice Morgan sentenced the offender to eight years in prison for trafficking in 23 firearms. Justice McArthur sentenced an offender to nine years for firearm trafficking offences, involving 15 firearms, in R. v. Santapaga, an unreported decision.
[30] Finally, in R. v. Jovanovic, an unreported decision of the Ontario Court of Justice, the offender was sentenced to eight years for trafficking in ten firearms. The offender refused to identify to whom he had sold the guns, which is a significant distinguishing feature from the case at bar.
[31] Mr. Moustacalis referred me to cases that support his submission that coercion short of the legal defence of duress, cooperation with the authorities, and restrictive bail conditions are significant mitigating circumstances in this case. These propositions are not disputed by Mr. Enright.
[32] A careful review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in defining the principles that I must apply.
Aggravating and Mitigating Circumstances
[33] I turn now to consider the aggravating and mitigating circumstances.
[34] First the aggravating factors.
[35] Sadly, not much needs to be said in November 2018 about the catastrophic effects of handguns in the hands of criminals. We hear and read about it almost daily. This city is plagued by gun violence. Lives are wasted or forever changed. The security and safety of our community is threatened. Mr. De Vos has contributed to this scourge, even if only in a small way.
[36] Mr. De Vos was entrusted to lawfully acquire and possess firearms. He breached that trust by transferring these handguns to a man he knew was a violent criminal and who he knew was transferring them to other criminals who would use them to intimidate, injure or even kill others.
[37] These offences were not committed on the spur of the moment, but rather took place over the course of six or seven weeks. In other words, as Mr. Enright submitted, this is not a case where Mr. De Vos made an impetuous decision or a single error of judgment.
[38] Mr. De Vos trafficked in handguns, particularly pernicious firearms in the hands of criminals given how deadly they are, and how easily they can be concealed.
[39] One of the handguns purchased by Mr. De Vos is still outstanding, and is available to be used by someone inclined to violence.
[40] I have also considered a number of mitigating factors in this case.
[41] Mr. De Vos is a first offender. Before these offences, he was a contributing member of the community, working since leaving high school. The letters of support filed on his behalf establish that the commission of these offences was out of character for Mr. De Vos. He is genuinely remorseful for his actions. He has been on bail for more than three years without incident.
[42] He has been able to overcome a 15-year long cocaine addiction. It appears that he has cut ties with the people he formerly associated with while he was using drugs.
[43] He has very strong support from his parents and fiancée.
[44] I am satisfied that Mr. De Vos has excellent rehabilitative potential. I expect that he will continue to be a contributing member of the community.
[45] The circumstances under which Mr. De Vos committed these offences are also mitigating. Although I rejected the defence of duress, I found that Mr. Gingras threatened Mr. De Vos with death or bodily harm, that Mr. De Vos had a reasonable belief that Mr. Gingras would carry out the threat, and that Mr. Gingras took advantage of Mr. De Vos’ addiction. I note that Justice Downes, the judge who tried Mr. Gingras, made similar findings. I also note that Mr. De Vos did not profit financially from transferring the firearms. Mr. Gingras gave him a small amount of cocaine at each stage of the process. Mr. De Vos was still required to continue to purchase cocaine from Mr. Gingras to feed his addiction.
[46] These circumstances diminish the moral blameworthiness of Mr. De Vos and entitle him to some leniency [7].
[47] A further mitigating factor I have considered is Mr. De Vos’ cooperation with the authorities. Mr. Enright is correct to submit that we expect citizens to answer to subpoenas and respond truthfully to questions put to them, which is what Mr. De Vos did. However, Mr. De Vos’ cooperation was more nuanced than that. Without information from Mr. De Vos, police would have had no reason to investigate Mr. Gingras. Mr. De Vos testified against Mr. Gingras under extremely stressful circumstances with no promise of consideration. As Mr. De Vos’ mother indicated in her letter to the court, Mr. De Vos regrets what he did and “testified against the dealer to try to make things right.” Mr. De Vos’ cooperation is evidence of his pro-social attitudes, confirming that the commission of these offences was out of character.
[48] Our Court of Appeal has recognized that an offender’s co-operation with police is a substantial mitigating factor where the offender has provided information that has led to the prosecution of others for serious offences. [8]
[49] I have also considered the fact that Mr. De Vos has been bound by the conditions of a recognizance since July 3, 2015 that prohibited him from leaving his residence except when accompanied by one of his parents or his fiancée, or when travelling directly to and from work or school. He was essentially subject to a house arrest bail for more than three years. These conditions were a significant restriction on Mr. De Vos’ liberty at a time when he was presumed innocent. This is a mitigating factor that must be taken into account. [9]
[50] Finally, although Mr. De Vos did not plead guilty to these offences, he essentially admitted the Crown’s case and provided his explanation, which I found did not rise to the level of the defence of duress. The trial was very efficiently conducted by both counsel. A guilty plea is not the sole means by which an offender can take responsibility for his crime and express his remorse. It was evident during his testimony that Mr. De Vos has accepted responsibility, and I accept that he is remorseful for his actions.
Determination of a Fit Sentence
[51] The difficult task before me today is to determine a sentence that reflects both the diminished moral culpability of Mr. De Vos, and the seriousness of his criminal conduct. Denunciation and deterrence are of paramount importance in cases involving the illegal transfer of firearms. Thirteen years ago, Justice Armstrong of the Ontario Court of Appeal described the possession and use of illegal handguns in the Greater Toronto area as a cause for major concern in the community. [10] Unfortunately, this concern, now heightened, persists to the present day.
[52] I cannot accept Mr. Moustacalis’ submission that a conditional sentence can adequately address the sentencing objectives of denunciation and general deterrence. Justice Lamer held in R. v. Proulx, 2000 SCC 5 [11] that conditional sentences can meet the objectives of denunciation and deterrence in some cases. However, he also noted that there will be cases, “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” [12]
[53] Mr. De Vos’ illegal transfer of three handguns to a known violent criminal warrants a custodial sentence to adequately express society’s condemnation of this conduct and to address the principle of general deterrence.
[54] Rehabilitation, however, is not to be overlooked. It remains a very significant and important objective in this case given Mr. De Vos’ excellent rehabilitative prospects.
[55] In all of the circumstances of this case, particularly the significant extenuating circumstances under which these offences were committed and Mr. De Vos’ co-operation with the authorities, the fit disposition is a sentence of 18 months in prison to be followed by two years’ probation. This disposition recognizes the very serious nature of Mr. De Vos’ crimes, and all of the aggravating and mitigating circumstances.
The Constitutionality of the Mandatory Minimum Sentence
[56] It now falls to consider the constitutionality of the mandatory minimum sentence of three years in prison set out in s. 99(2) of the Criminal Code. Having found that the appropriate sentence, after applying all of the principles and objectives of sentencing, is 18 months, I find that three years in prison is grossly disproportionate in this case.
[57] As I have already indicated, three decisions of this court have considered this issue and determined that the mandatory minimum sentence violates s. 12 of the Charter of Rights and Freedoms.
[58] There is no value in me repeating the thorough analysis of my colleague, Justice Edwards in R. v. Hussain, 2015 ONSC 7115. I agree with his analysis and his conclusion.
[59] Of equal importance is the principle expressed by Justice Strathy in R. v. Scarlett, 2013 ONSC 562 [13] that “decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them.”
[60] For the foregoing reasons, I find s. 99(2) of the Criminal Code is of no force and effect as it violates s. 12 of the Charter of Rights and Freedoms.
Ancillary Orders
[61] I also make the following ancillary orders.
[62] Mr. De Vos is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life pursuant to s. 109 of the Criminal Code. I make a DNA order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a DNA sample from Mr. De Vos. And finally, Mr. De Vos is ordered to pay a victim fine surcharge in the amount of $600.00. He may have 30 months to pay it.
Conclusion
[63] Mr. De Vos, on each of counts 1, 2 and 3, I sentence you to 18 months in prison to be served concurrently. In addition, I place you on probation for two years with the following conditions:
- keep the peace and be of good behaviour;
- appear before the court when required;
- notify your probation officer in advance of any change of your name or address;
- notify your probation officer promptly of any change in your employment;
- report to a probation officer within three working days of your release from custody, and after that, as directed by your probation officer;
- attend and actively participate in any counselling or rehabilitative programs recommended by your probation officer; and
- sign any release forms necessary to allow your probation officer to monitor your attendance and participation in such programs.
Corrick J.