COURT FILE NO.: 0026/18
DATE: 20190321
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEVIN HANSE
Defendant
Sonya Andersen, for the Crown
David Parry, for the Defendant
HEARD: January 16, 2019
MOLLOY J.:
REASONS FOR SENTENCE
A. INTRODUCTION
[1] Kevin Hanse was initially charged on the same indictment with three offences: (1) attempting to possess a firearm contrary to s. 91(1) of the Criminal Code; (2) transferring or offering to transfer ammunition contrary to s. 99(1) of the Criminal Code; and (3) conspiring to traffic in marijuana. I severed the third count from the other two. Mr. Hanse proceeded to trial before a jury on the firearm and ammunition charges, and was convicted on both counts. He proceeded before me, without a jury, on the charge of conspiracy to traffic in marijuana. He pleaded guilty and I conducted a Gardiner hearing with respect to the level of his drug trafficking, following which I held that he was a mid-level dealer, higher than a street-level dealer, but not involved in the higher levels of the drug supply chain. It is now my task to sentence Mr. Hanse for these crimes.
[2] The Crown submits that the appropriate global sentence would be in the range of three to six years, less credit for 21 days served in pre-trial custody. The Crown also seeks a DNA order, a weapons prohibition order for life, and forfeiture of Mr. Hanse’s cellphone, which was seized by the police and had been used in committing the offences. Defence counsel takes no issue with the ancillary orders sought by the Crown. However, he argues that the appropriate sentence for Mr. Hanse is two years less a day and that Mr. Hanse should receive credit, not only for the 21 days of pre-trial custody, but also for the period of time he was on bail. Based on the defence calculation, Mr. Hanse would have 18 months remaining to serve on his sentence.
[3] For the reasons that follow, in my view the appropriate global sentence required to reflect the seriousness of the crimes relating to firearms and ammunition is 4 years. I am of the view that 9 months is the appropriate sentence for the marijuana charge, to be served consecutively to the other sentences. Against that total sentence, I would allow a total credit of 5 months, leaving 4 years and 4 months yet to be served.
B. BACKGROUND FACTS
[4] All of the offences were committed in Toronto during the months of April and early May, 2016. The Crown’s case against Mr. Hanse was based almost entirely on intercepted telephone conversations he had with several people, supplemented with some information from surveillance.
[5] In the intercepted telephone calls, Mr. Hanse undertook to obtain items for the people with whom he was talking. The participants in the calls, including Mr. Hanse, used coded language to suggest they were talking about cars and gasoline. The Crown’s theory was that the references to “cars” and “whips” actually related to illegal firearms, and the references to things such as “gas” and “lug nuts” actually related to ammunition. Based on the convictions for attempting to obtain a firearm and trafficking in ammunition, it is clear that the jury was satisfied beyond a reasonable doubt that Mr. Hanse was discussing firearms and ammunition in these calls. This was not merely a “one-off”, or isolated instance of Mr. Hanse undertaking to supply guns and ammunition. He had multiple conversations with two individuals for whom he was attempting to obtain firearms, and there was some indication that he was looking to get more than one firearm. There were also numerous calls about getting ammunition for various kinds of firearms, and Mr. Hanse had contact with more than one supplier from whom he was obtaining that ammunition.
[6] The evidence on the marijuana trafficking charge also consisted largely of intercepted telephone conversations, assisted by the testimony of Det. Richard Duffus as an expert on marijuana trafficking. Based on that evidence, I found that Mr. Hanse was selling marijuana at weights in the range of half a pound to two pounds, at dollar amounts in the low thousands. This is obviously higher than street-level dealing. Mr. Hanse was a mid-level supplier. However, he was not in the higher echelons of the organized illegal drug trade.
C. CIRCUMSTANCES OF THE OFFENDER
[7] Mr. Hanse is 44 years old. He has resided with his current spouse (Kareen Christian) since he was 19 years old (apart from times when he was in jail). They have four children together: a son aged 18, who is studying to be a firefighter, and three daughters aged 15, 11, and 2. Ms. Christian is now four months’ pregnant with their fifth child. She is attending school with the goal of becoming a Personal Support Worker. The family resides with Ms. Christian’s father (Gladstone Christian) who has significant health issues, including cancer, diabetes, high blood pressure, and arthritis.
[8] Mr. Hanse grew up in a stable and loving home environment. He has four siblings, all of whom have successful careers. His mother, spouse, and father-in-law filed letters of support. I accept from these testimonials that Mr. Hanse has been a devoted father and spouse and provides much needed assistance at home for his spouse, his father-in-law, and his children.
[9] Mr. Hanse graduated from high school and obtained a college diploma in Cosmetology in 2003. He worked as a barber for six years and then opened his own barbershop in Oshawa in 2009. He closed that business after two years as it was not doing well financially. Thereafter, he worked as a garbage handler for a waste management company from 2012-2014, and after that worked in construction for three years.
[10] For part of 2018 Mr. Hanse worked as a sub-contractor for SparkAV, a job he obtained through a friend, Greg Brown, who was employed by that company. In that position, Mr. Hanse earned $20 an hour. On sentencing, the defence filed a letter written by Greg Brown, purportedly on behalf of SparkAV. Although not on letterhead, Mr. Brown’s business card was attached to the letter, showing him to be a Project Lead with SparkAV. Mr. Brown referred in the letter to knowing about some legal matters Mr. Hanse needed to attend to but stated that he would “gladly have [Mr. Hanse] return to work in the capacity of junior audio visual technician and continue to have him trained to become an independent AV contractor,” with his rate of pay increasing as he progressed in that field. The Crown investigated the reliability of this job offer. One of the three owners of the business advised the Crown that: Mr. Hanse had never been an employee; Greg Brown has no authority to hire employees for SparkAV; Mr. Hanse had done some drywalling for SparkAV, for which he had submitted invoices, which were paid; there was no guarantee of future employment, but if the company needed general labourers there would be an opportunity for Mr. Hanse to do further work as an independent contractor; and that Mr. Hanse was not an AV technician, but the company was aware that Mr. Brown had been doing some training with him.
[11] Mr. Hanse has a criminal record.
[12] In 2001, Mr. Hanse was facing a charge of second degree murder. He pleaded guilty to manslaughter. The offence occurred in 1999 in a rooming house used by crack addicts. Based on the facts accepted as true by Mr. Hanse at the time of his guilty plea, Mr. Hanse did not live there, but was found by one of the residents going through the contents of her friend’s closet. She knew Mr. Hanse and accosted him. Mr. Hanse pushed her to the ground and began kicking her, whereupon a male resident in the house rushed to her rescue. This man was high on crack, taller than Mr. Hanse, and about 60 pounds heavier than him. He was poised to strike Mr. Hanse. However, Mr. Hanse pulled a handgun out of his pocket, shot the man in the chest, and fled the scene with the gun. The man died as a result of the gunshot wound. Based on a joint submission, Mr. Hanse was sentenced to one day in addition to time served, being the equivalent of slightly more than four years. He was also subject to a weapons prohibition order for life, pursuant to s. 109 of the Criminal Code. There was also a probation period of 18 months, but he was required to report to a probation officer only once during that time.
[13] In 2006, Mr. Hanse was convicted of possession of marijuana for which he was sentenced to a fine of $200.
[14] In 2010, Mr. Hanse was convicted of possession of cocaine for the purposes of trafficking. After a guilty plea, he was sentenced to 11 months and 22 days in custody (in addition to 8 days already served), followed by two years’ probation with no reporting requirement. Another weapons prohibition order for life was made at that time.
[15] Mr. Hanse was arrested on the charges before me on June 2, 2016. The offences were committed in April 2016. It is clear from the evidence at trial, including the intercepted phone calls and texts and the testimony of Mr. Hanse’s associate in crime, Abdul Wasi Hadi, that Mr. Hanse was actively engaged in trafficking marijuana during this time.
D. GENERAL PRINCIPLES OF SENTENCING
[16] Arriving at a just sentence for a particular offender and offence is a highly individualized process involving the exercise of discretion. However, there are general principles and objectives of sentencing established under the Criminal Code and through the case law that must be kept in mind as part of that process. One of the overarching principles is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^1] Another important principle is that imprisonment is never the first choice. All available sanctions other than imprisonment must be considered before depriving an offender of his liberty, provided that those lesser sanctions are appropriate and consistent with the other principles of sentencing.[^2] Other statutory principles of sentencing of particular relevance in this case are: denunciation of the unlawful conduct in light of the harm caused to victims and the community; deterrence of the individual offender and promoting in him a sense of responsibility and acknowledgment of the harm he has caused; general deterrence of others who might consider committing similar crimes; and the rehabilitation of the offender.[^3]
[17] Although sentencing is an individualized process and no two individuals or the circumstances of their crimes will ever be identical, consistency in sentencing is important. To the extent possible, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.[^4]
[18] A sentence can be increased to take into account the presence of any aggravating factors (such as a prior criminal record) or decreased to reflect mitigating factors.[^5]
[19] Generally speaking, separate offences are treated separately and are subject to consecutive sentences. However, the sentencing judge is required to consider the totality of all sentences imposed and whether the combined sentence would be unduly long or harsh.[^6]
E. MITIGATING AND AGGRAVATING FACTORS
[20] The most significant mitigating factor I see in this case is the strong relationship between Mr. Hanse and his family. He appears by all accounts to be a good father and enjoys the support of his immediate family, extended family, and others in his community. He has also had significant periods of legitimate employment and the skills to continue such employment in the future.
[21] Mr. Hanse experienced a traumatizing event in his youth. He was only 16 years old when he was set upon by a gang of people and beaten severely, an attack that appeared to be racially motivated. He was hospitalized and in a coma for two months. He had a broken jaw and other fractures, requiring surgery. He still has an iron plate holding his jaw together, which has resulted in a minor speech impediment. He has suffered from migraine headaches ever since this incident. I accept that this incident happened, as was described by Mr. Hanse to the author of the pre-sentence report, and also attested to by his mother. However, I am uncertain as to the extent to which this is mitigating. I do not wish to minimize what I understand to have been a horrific crime and one that no doubt has had an impact on Mr. Hanse’s life. However, I have not seen any medical evidence as to long term sequelae, either physical or emotional, and I do not know if this incident contributed in any way to Mr. Hanse’s later criminality. He is now 44 years old, has been in a long term stable relationship for over two decades, and has an extended and loving family. I do not see what happened to him when he was 16, awful though it was, as having any significant impact on sentencing.
[22] Mr. Hanse pleaded guilty to the marijuana trafficking charge, which is a mitigating factor. Although a Gardiner hearing was required with respect to that offence, it was limited to a narrow issue, thereby reducing the time required for evidence and argument. Further, many concessions were made in respect of the evidence required on the two charges tried before the jury, which had the effect of substantially reducing the length of the trial. This cooperative and reasonable approach also has a mitigating effect on sentencing.
[23] On the other hand, Mr. Hanse’s criminal record is a seriously aggravating factor. Particularly troubling is that his record includes offences involving both guns and drugs, the same lethal combination involved in the offences now before me. Although not separately charged with breaching s. 109 orders, the fact that Mr. Hanse was seeking out guns and trafficking in ammunition while under two s. 109 orders for life is an aggravating factor. It is also aggravating that these were not single, or isolated, incidents. Mr. Hanse was actively engaged in obtaining more than one firearm and different kinds of ammunition for more than one person, had already actually trafficked ammunition to one individual (together with a firearm), and was actively engaged in business as a mid-level marijuana trafficker. These were not impulsive acts by Mr. Hanse, but rather deliberate and planned operations, carried out for personal gain. That said, I recognize that Mr. Hanse’s drug dealings appear to have been restricted to marijuana, which is a less dangerous substance than cocaine, which was the subject of his most recent previous conviction. I would also add that there is no evidence that Mr. Hanse ever carried a gun as part of his marijuana trafficking, although he was attempting to acquire a firearm for Mr. Hadi, knowing that Mr. Hadi was a drug dealer.
F. REHABILITATION, DENUNCIATION and DETERRENCE
[24] Deterrence and denunciation are always important considerations in sentencing for crimes involving illegal firearms.[^7] Mr. Hanse was involved in supplying handguns and ammunition to criminals with no legitimate reason to have them. At least one of the intended recipients was involved in the drug trade. Our courts have repeatedly highlighted the interconnection between guns and drugs as particularly lethal, requiring sentences that will have a deterrent effect.[^8]
[25] Mr. Parry, for the defence, submits that the importance of deterrence and denunciation in sentencing must be reassessed in light of the decision of the Supreme Court of Canada in R. v. Nur.[^9] I do not agree. In Nur, the Supreme Court of Canada considered the constitutionality of a provision of the Criminal Code imposing a mandatory minimum sentence for possession of a loaded prohibited firearm. In her analysis under s. 1 of the Charter of Rights and Freedoms, McLachlin C.J. (writing for the majority) considered whether there was a rational connection between a mandatory minimum sentence and the stated government goal of imposing such sentences to act as a deterrent against gun crimes. The Chief Justice referred to a number of studies and scholarly articles pointing to the lack of empirical evidence to support the deterrent effect of incarceration. However, this was within the context of considering mandatory minimum sentences, not the importance of denunciation and deterrence for particular categories of offences. Furthermore, the Chief Justice went on to conclude that “a rational connection exists between mandatory minimum terms of imprisonment and the goals of deterrence and retribution.”[^10]
[26] I note as well that the principle of giving paramount importance to denunciation and deterrence in sentencing for firearms offences has been reaffirmed in many cases since the Supreme Court’s decision in Nur.[^11] Indeed, while finding the mandatory minimum sentence to be unconstitutional, the Supreme Court in Nur did not minimize the seriousness of firearms offences and the need for exemplary sentences in appropriate cases. In the very first sentence of her judgment, McLachlin C.J. stated, “Gun-related crime poses grave danger to Canadians.” After providing an overview of the basis for finding the mandatory minimum to be unconstitutional, the Chief Justice added:
This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.[^12]
[27] Finally, I note that the importance of denunciation and deterrence can flow from particular problems being experienced in a particular community.[^13] For well over a decade, Toronto judges have emphasized the plague represented by firearms in our city and the profound consequences these weapons have on the safety of our community. Here are some examples:
Moldaver J. (in dissent in Nur): Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as “a direct response to the scourge of handgun crime that plagues our country”: House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, at p. 1. The parliamentary committee studying those changes heard compelling testimony from law enforcement about the devastating impact of gun violence across Canada. Toronto Police Chief William Blair noted a “significant increase in the number of shooting[s]” in Toronto and a rise in gun-related homicides in excess of 85 percent from 2004 to 2005: ibid., No. 34, November 23, 2006, at p. 1. Due to the surge in shootings and gun deaths, 2005 was dubbed by local media as “the year of the gun” (ibid.).[^14]
O’Connor A.C.J.O., Simmons and Blair JJ.A.: Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.[^15]
R. P. Armstrong J.A.: 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 handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.[^16]
D. E. Harris J.: The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety. Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing….It is even more so now what with the record murder numbers in Toronto and the continuing increase of gun crimes and violence . . .[^17]
K. L. Campbell J.: Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug-trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. . .[^18]
S. A. Q. Akhtar J.: Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences . . .[^19]
J. McMahon J.: Sadly, concealed illegal firearms remains a plague in this city. It is not an exaggeration to say that this Court sees on a weekly basis illegal firearms, often leading to intimidation, robbery, serious injury and death. The message of this Court must be clear: if you are going to carry an illegal firearm on the streets of this city, in all likelihood you are going to jail.[^20]
[28] I adopt, in particular, the observations of Trafford J. in R. v. Villella as to the exceptionally serious nature of trafficking in firearms, as follows:
…[T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.[^21]
[29] I recognize that Mr. Hanse was not found to be in actual possession of a handgun at the time of his arrest, nor was he seen to be carrying a handgun about in a public place. However, he was engaged in searching out illegal handguns with a view to providing them to others. Given the surreptitious nature of their communications, it is clear that the criminal context in which this was being done was apparent to all parties. I cannot imagine that this was being done as a goodwill gesture by Mr. Hanse. He was searching out illegal handguns with a view to making a financial profit for himself. Further, I am satisfied beyond a reasonable doubt based on the intercepted communications between Mr. Hanse and Mr. Hadi on April 11, 12 and 17 that Mr. Hanse was at some point in possession of a handgun and ammunition, which he provided to Mr. Hadi. Criminals who endanger the residents of our city by using handguns in the course of their illegal activities are enabled to do so by suppliers such as Mr. Hanse. His moral blameworthiness is high. Given the actual offences charged (attempting to possess a firearm and transferring or offering to transfer ammunition), his conduct is at the high end of the spectrum of conduct constituting the offences. In this context, I see denunciation and general and specific deterrence as the primary focus in sentencing.
[30] That is not to say that the prospects for rehabilitation play no role in sentencing. Mr. Hanse is pro-social and connected to his family and his community. I do not place much faith in the prospects of Mr. Hanse becoming an audio-visual technician through employment with SparkAV, given the information provided by its owner. However, Mr. Hanse has skills that would enable him to obtain other legitimate, lawful employment. I accept that he is motivated to assist and support his family. There is therefore a reasonable prospect that he will be able to function well in the future and avoid a criminal lifestyle.
G. SIMILAR SENTENCES FOR SIMILAR OFFENCES
Specific Parity
[31] Counsel for Mr. Hanse submits that a lenient sentence is appropriate for Mr. Hanse to achieve parity with the treatment of Mr. Hadi (who was on many of the intercepts and who had originally been charged with Mr. Hanse) and an individual referred to as “O” (who was one of the people on the intercepts for whom Mr. Hanse was attempting to obtain a gun and ammunition). I agree with the submission of the Crown that the disposition of the charges against these two individuals is of no assistance in determining the appropriate sentence for Mr. Hanse. The charges against Mr. Hadi were withdrawn. I have no evidence as to why that was the case and no basis to compare his situation with that of Mr. Hanse. “O” pleaded guilty to possession of a prohibited device (an over-capacity magazine which had been found in his condominium), and was sentenced to nine months. This is only one offence and is different from any of the offences Mr. Hanse committed. Further, O pleaded guilty and I have no information as to his personal circumstances from which I could make a comparison with Mr. Hanse.
Attempted Possession of a Firearm
[32] The maximum sentence for possession of a firearm contrary to s. 91(1) of the Criminal Code is 5 years. Mr. Hanse was charged with and convicted of attempted possession under that section. By virtue of s. 463(d) of the Criminal Code, the maximum sentence would therefore be 2.5 years.
[33] Both counsel before me commented on the dearth of case law on sentencing for attempted possession of a firearm. The cases that do exist are quite different factually from the one before me.
[34] In R. v. Dehaney,[^22] Dambrot J. sentenced the offender to 3 years for attempted possession of a firearm. However, this was concurrent to the more serious offence of possession of a loaded prohibited firearm for which a sentence of 5 years was imposed. Also, there were cocaine trafficking counts for which there were 2 additional years, consecutive to the firearms counts, for a total sentence of 7 years. Justice Dambrot commented that he would have imposed longer sentences but for the principle of totality. Given the serious nature and number of the total offences committed by Mr. Dehaney, it is difficult to draw much from the 3 years allocated to the attempted firearm possession count. I also note that Mr. Dehaney’s personal circumstances were quite different from those of Mr. Hanse in that he had only a minor criminal record and was 23 years old at the time of the offences, mitigating factors that do not apply to Mr. Hanse.
[35] In R. v. Ellis,[^23] an offender was convicted in the Ontario Court of Justice of two counts of attempting to possess a firearm. On each offence, he was sentenced to the equivalent of 18 months (7 months in addition to a credit of 11 months in pre-trial custody on a 1.5 to 1), to be served concurrently, plus probation and various ancillary orders. On appeal, the Ontario Court of Appeal held that the trial judge erred in finding that the accused had attempted to acquire two separate firearms and set aside one of the convictions. The issue then became whether the sentence should still stand. After receiving written submissions from the parties, the Court decided not to interfere with the custodial portion of the sentence, essentially for two reasons: (1) the trial judge did not treat the attempted possession of a second gun as an aggravating factor; and (2) the custodial sentence had already been served. Again, this case is of limited precedential value. There was only one offence and it was prosecuted summarily in the provincial court. I have no information as to the personal circumstances of the offender or why the trial judge considered 18 months to be an appropriate sentence. Furthermore, the offender was merely seeking to purchase a gun from an illegal gun dealer. There was no evidence that he was himself intending to supply guns to others once he obtained them. It is difficult to compare this case to the situation of Mr. Hanse.
[36] The only other case referred to by the parties is the decision of Akhtar J. in R v. Francis. Mr. Francis had been charged with multiple offences, including attempted murder, in connection with his plan to murder the three young children of his former romantic partner (“C”). Mr. Francis had a history of assaulting and threatening C. Based on her testimony, he had been convicted of some offences in that regard, and served time. When the police received information that Mr. Francis was now planning to take his revenge by killing C’s children, C and her children were taken into the witness protection plan and an undercover officer set out to befriend Mr. Francis. Ultimately, Mr. Francis confided his plan to the undercover officer and asked him to obtain a firearm for him so that he could carry out the three murders and then kill himself. At the conclusion of his trial, Mr. Francis was acquitted of the three attempted murder charges against him, but was convicted of attempting to possess a firearm.[^24] He was sentenced to the equivalent of 3 years (2 years pre-trial custody credited at 1.5:1). Subsequently, Mr. Francis appeared in the Ontario Court of Justice for sentencing on 9 offences to which he had pleaded guilty (also involving C and her children): one count of criminal harassment; four counts of uttering death threats; and four counts of breaching a probation order.[^25] Also dealt with at that time was the Crown’s application to have Mr. Francis declared a dangerous offender. In the course of his reasons on the dangerous offender application, Blouin J. referred to the earlier decision of Akhtar J. and noted that the three-year sentence imposed for attempting to possess a firearm was based on a joint submission with respect to the allocation of two years of time served.[^26] It was known then that Mr. Francis would be returning to the Ontario Court of Justice for the dangerous offender hearing. In the result, Blouin J. imposed a 54-month total sentence (against which there was a credit of 51 months for time served) and also made a ten-year Long Term Supervision Order. Again, this is a situation where it is difficult to look at the sentence for attempting to possess a firearm in isolation. There are no separate reasons for the sentence imposed for this offence. Further, it was done on a joint submission and with the knowledge that the more serious matter was yet to be dealt with.
[37] The general principle of parity requires that similar sentences be imposed for similar offences committed by similar offenders in similar circumstances. However, none of the cases dealing with sentences for attempting to possess a firearm are similar on their facts to the offence before me, nor are any of the offenders similar. The circumstances in which the offences were committed also vary substantially.
Trafficking in Ammunition
[38] The maximum sentence for transferring ammunition contrary to s. 99(1) of the Criminal Code is 10 years. Again, counsel before me commented on the dearth of case law dealing with trafficking in ammunition. There are, however, cases dealing with trafficking in firearms, typically involving both firearms and ammunition.
[39] In R. v. Bullens,[^27] A. O’Marra J. of this Court dealt with an offender who had been convicted by a jury of offering to transfer a firearm. This was based on intercepted telephone calls in which Mr. Bullens offered to sell a firearm and ammunition to a number of individuals for $2500. Justice O’Marra, sitting without a jury, then convicted Mr. Bullens of breaching a weapons prohibition order previously made in 2007 in Alberta. Mr. Bullens was 36 years old and had a criminal record which included: (1) convictions in Alberta in 2004 for careless use of a firearm and drug possession for which he was sentenced to one day in jail and a fine; and (2) a set of convictions in 2007 in Alberta for which he received a global sentence of just over 5 years for firearms possession, possession of a Schedule 1 substance for the purposes of trafficking, and drug trafficking. O’Marra J. sentenced Mr. Bullens to 6 years for offering to transfer the firearm and an additional 1 ½ years for breaching the 2007 prohibition order, for a total of 7 ½ years.
[40] In R. v. Hersi,[^28] the Ontario Court of Appeal upheld a 13-year global sentence imposed by Clark J. for trafficking a firearm, possession of a firearm, trafficking drugs, and conspiracy to traffic drugs, all in connection with a criminal organization. The offender was only 22 years old but had an extensive record for one so young, including as a youth and as an adult, and including firearms offences and crimes of violence. The Court of Appeal held that the sentence imposed was “proportionate to Hersi’s moral culpability” and “necessary to deter and denounce the extremely serious offences committed in the name of a violent criminal organization.” [^29] Although the offences included trafficking in a firearm, the presence of other offences and the involvement of the criminal organization make it impossible to compare this case to the one before me.
[41] More instructive, however, is the sentencing decision of Clark J. in that same case. There were two accused at the trial stage: Mohammed Hersi and Guled Mahadale. Both faced multiple counts, but Mr. Mahadale was only convicted of one count of having transferred or offered to transfer a firearm and one count of having committed that offence for the benefit of a criminal organization. Because Mr. Mahadale did not appeal his conviction or sentence, it is not referred to in the Court of Appeal decision. However, Clark J. sentenced Mr. Mahadale to 5 years for offering to transfer a firearm and a further 3 years for having done so for the benefit of, and in association with, a criminal gang. This was the sentence sought by the Crown for Mr. Mahadale. Apart from his relative youth and the support of his family, Clark J. found no mitigating factors for Mr. Mahadale. He was pessimistic about the chances of rehabilitation. There were many aggravating factors, the most serious being an extensive record as a youth including three convictions for robbery involving the use of a weapon and an adult conviction for possession of an illegal firearm, as well as several prior prohibition orders which he clearly breached. With respect to Mr. Hersi, in allocating the global sentence of 13 years, Clark J. attributed 5 years to the firearm trafficking charge and an additional 3 years for doing so for the benefit of the criminal organization. He also held that, but for the principle of totality, he would have imposed stiffer sentences for the various other offences, including the drug offences.
[42] Thus, quite apart from the criminal organization involvement, Clark J. sentenced these offenders to 5 years for the firearm trafficking offence. There were some circumstances that were more aggravating than the situation of Mr. Hanse, including the criminal records of both accused and the fact that they used young people to assist in their criminal activity. However, both accused were youthful, a mitigating factor not applicable to Mr. Hanse. Also, Mr. Hanse does have a criminal record, as well as two prior weapons prohibition orders, so his situation in relation to the ammunition trafficking count has some similarities to the circumstances of Mr. Mahadale and Mr. Hersi.
[43] Finally, I have considered the decision of Kelly J. in R. v. Ward-Jackson.[^30] Mr. Ward-Jackson pleaded guilty to a number of offences including: three separate instances of selling three separate illegal firearms; possession of a fully loaded AK-47 assault rifle with a prohibited device (a 7.62 mm cartridge magazine with a 30-round capacity; possession of 90 rounds of ammunition while prohibited from doing so by a s. 109 order; an additional breach of the s. 109 order by being in possession of the prohibited device magazine; and breach of probation by being in possession of a weapon (the assault rifle). The firearms trafficking offences were committed in 2012 and the other offences flowed from a search warrant executed in 2014. Mr. Ward-Jackson had prior convictions. In 2005 he was sentenced to 1 year probation for theft under $5000.00. In 2009, he was convicted of possession of a schedule 1 substance for the purpose of trafficking and possession of a firearm. He was sentenced to the equivalent of 3.5 years and a s. 109 prohibition order was made. The most aggravating factor on sentencing was the fact that two of the firearms at issue were sold by Mr. Ward-Jackson to Dellen Millard and were used by him in the murder of his father, Wayne Millard, and the murder of Timothy Bosma. There were also mitigating factors, including a genuine expression of remorse. Justice Kelly sentenced Mr. Ward-Jackson to a global sentence of 11 years, but noted that but for the principle of totality and the pleas, she “would have had no hesitation in imposing the sentence of 13 years or possibly more.” The 11-year sentence was then allocated to the various charges, with each of the trafficking firearm charges attracting a sentence of 4 ½ years concurrent. It is difficult to place much precedential value on this allocation given the reduction for totality. However, I note that it is in the same general ballpark as the sentences imposed by Clark J. in Hersi and Mahadale. The aggravating circumstances were more significant for Mr. Ward-Jackson than is the case for Mr. Hanse, although he also had the benefit of the mitigating effect of the guilty plea and other mitigating factors.
Conspiracy to Traffic in Marijuana
[44] Defence counsel submits that the legalization of marijuana in Canada represents a societal shift and that Mr. Hanse’s actions in selling marijuana is more of a regulatory issue than a criminal one. He relies on a decision of the Newfoundland and Labrador Supreme Court in R. v. Murphy in which Burrage J. held:
It is axiomatic that the statutory regime applicable to the sentencing of Mr. Murphy is that which was in place at the time the offence was committed. At the same time, the Court ought not to slavishly follow the sentencing precedents of that time as if nothing has happened in the interim, for “It is good when judges are mindful of developments in their communities … .”
While finding that the principles of general deterrence and denunciation remain primary considerations, the sentencing judge in Thompson concluded that “evolving societal attitudes towards marijuana have dulled the blades of these principles somewhat” (at paragraph 32). I agree. I also agree that judges are entitled to take stock of changes in social mores when assessing the gravity of an offence.[^31]
[45] In that case, the offender was a 26-year-old with no criminal antecedents. He did not traffic in marijuana himself, but merely transported a package of marijuana from one person (who had received delivery of the package from UPS) to another person higher up in the chain of distribution. He did so purely for monetary gain. At the time of his arrest, he was in possession of one such package of marijuana, weighing 24.8 pounds. He pleaded guilty and showed genuine remorse. He had a strong work record and excellent family and community support. He resorted to transporting the marijuana for financial reasons, after a period of unemployment. The trial judge suspended sentence and imposed a probation period of two years, reasoning that no purpose would be served by sending Mr. Murphy to jail.
[46] Mr. Hanse was not 26 and he did have a criminal record. He was directly involved in trafficking in marijuana himself. He also supported himself by trafficking in ammunition and firearms. His situation is nothing like that of Mr. Murphy.
[47] I agree that the changing societal attitude with respect to marijuana, as reflected in its recent legalization, has an impact on the moral blameworthiness of this offence. However, marijuana has not simply been legalized; it remains a highly regulated substance. One of the reasons for the new system of marijuana control is to take the distribution of marijuana out of the hands of criminals. This will remove profits from criminals and criminal gangs and promote the health and safety of the community, both by reducing criminal drug activity (often accompanied by gun violence) and controlling the quality of the marijuana products consumed by the public.
[48] The reduced moral blameworthiness of marijuana possession and marijuana trafficking is already reflected in the case law, and has been for many years. Marijuana is known to be a “soft” drug, unlike drugs such as cocaine and heroin which have always attracted much higher sentences. Simple possession rarely attracts criminal sanctions unless it is accompanied by something else. Low-level street trafficking also does not attract high penalties.
[49] However, that is not what Mr. Hanse was doing. He was selling marijuana in amounts in the several thousands of dollars range. He was a supplier, which represents a higher degree of blameworthiness. I do not agree that Mr. Hanse’s offence was regulatory in nature. It was illegal drug trafficking and is properly characterized as criminal in nature. His conduct was criminal at the time he undertook it, and it remains criminal today notwithstanding recent legislation setting conditions for the legal sale of marijuana to the public.
[50] The sentencing judge in Murphy referred to the decision of the Saskatchewan Court of Appeal in R. v. Neary. Police officers conducting surveillance of a suspected drug dealer observed that man and another man entering Mr. Neary’s residence with empty backpacks and emerging with full backpacks. They were arrested and their backpacks were found to contain 7 pounds of marijuana. A search warrant was issued for Mr. Neary’s residence and storage locker. He was found to be in possession of a further 13 pounds of marijuana. Mr. Neary pleaded guilty and expressed remorse. He was a youthful first-time offender with an exemplary academic and work record as well as longstanding volunteer work in the community. The sentencing judge accepted the Crown’s submission that, based on precedent in cases involving such a large amount of marijuana, an appropriate sentence would be in the 15-18 month range. Based on the personal circumstances of the offender, the sentencing judge considered that a conditional sentence would have been appropriate if it had been available, but it was not (due to Criminal Code amendments that had recently come into force broadening categories of offences for which a conditional sentence was not available). The sentencing judge then referred to the pending federal government legislation legalizing marijuana and stated that “to blindly follow the current sentencing regime of 15 to 18 months would not be an intellectually honest act in the face of the coming change.”[^32] He therefore suspended sentence and made a two-year probation order. The Crown appealed that sentence to the Saskatchewan Court of Appeal, which held that the sentencing judge was required to apply the law as it existed, without regard to possible reforms in the future.[^33] The Court of Appeal found the sentence imposed to be unfit and substituted a sentence of 15 months’ imprisonment, stating:
The trial judge overemphasized Mr. Neary’s personal circumstances and failed to take into account the seriousness of the offences and the level of his moral culpability. Mr. Neary trafficked a substantial amount of marijuana. This was noted by the trial judge in his decision. There was some evidence that this was not Mr. Neary’s first incursion into marijuana trafficking in that he had in smaller ways been trafficking drugs in the past. This undercuts the trial judge’s intimation that given Mr. Neary’s favourable background these offences are a one-off situation.
While marijuana is considered a soft drug, the trafficking of which is less serious than the trafficking of hard drugs, Mr. Neary, because he was in possession of or able to traffic 20 pounds of marijuana, is above a mere street level trafficker and holds a higher position in the distribution system. Moreover, the trafficking was a commercial operation. There is no evidence here that Mr. Neary is addicted in any way. He did it for the money. This aspect was underemphasized by the trial judge and as a result diminished his view of the moral culpability of Mr. Neary. All these errors resulted in the suspended sentence imposed on Mr. Neary being unfit.[^34]
[51] Mr. Hanse was dealing in marijuana at a somewhat lower level than Mr. Neary, but nevertheless above the street-level. However, he does not have the benefit of the many mitigating factors taken into account in respect of Mr. Neary, in particular that he was a youthful offender with no criminal record.
[52] The following cases referred to by the Crown, and some of the cases referred to therein, are illustrative of the sentencing range for marijuana trafficking that is above street-level sales:
• R. v. Herta, 2016 ONSC 3051 – 9 months for 10.5 pounds of marijuana, prior record for trafficking and on probation at the time of the offence, addiction to prescription drugs and use of those drugs and marijuana for pain and depression, previously undiagnosed bipolar affective disorder, genuine remorse, excellent rehabilitation prospects;
• R. v. Lister, 2003 C.C.C. (3d) 528, 2003 BCCA 269 – 9 months for 30 pounds of marijuana worth $75,000, accused had health problems;
• R. v. Hoang, 2013 ONCA 430 – 9 months for 26 pounds of marijuana in the trunk of the car; difficult personal circumstances;
• R. v. Pham, 2016 ONCA 258 – 6 months for 48 pounds of marijuana, 52-year-old first offender who was the sole support for her university student daughter, crime motivated by personal gain;
• R. v. Shin, 2012 ONSC 6293, aff’d 2015 ONCA 189 – 5 years for 12 kg. marijuana and 18 months consecutive for $240,000 of proceeds, no prior criminal record but admitted high level drug trafficking over a period of 14 years; and
• R. v. Strong, 2017 ONSC 3163 – 3 years for multiple counts of trafficking marijuana over a three-month period, high-level dealer selling 124 pounds of marijuana during that time period, sophisticated commercial enterprise, one prior unrelated conviction, guilty plea and genuine remorse, had turned his life around by the time of sentencing.
[53] It is difficult to draw a direct analogy between any of these cases and the circumstances of Mr. Hanse. However, the offenders who received sentences in the lower to mid-single digit range typically were dealing at a much higher level than Mr. Hanse. Those under one year tended to have extenuating mitigating circumstances, which Mr. Hanse does not have.
H. ANALYSIS and CONCLUSIONS
Firearm and Ammunition Charges
[54] I see the firearm and ammunition charges as being sufficiently linked in nature and time that concurrent sentences are appropriate. I approach the sentencing for these offences on a global basis. Although the actual trafficking charge against Mr. Hanse is in relation to ammunition, most of the case law relates to trafficking firearms. I consider this to be a distinction without much of a difference. Firearms by themselves are intimidating, but they are not lethal until bullets are put into them. Supplying ammunition is every bit as dangerous and morally blameworthy as trafficking in firearms. I therefore find the firearms trafficking precedents to be equally applicable to trafficking in ammunition.
[55] The firearms Mr. Hanse was seeking to acquire were not for his own use; he was intending to pass them along to his “customers.” This context makes his attempt to acquire possession of a firearm far more onerous at and towards the upper end of the spectrum of moral blameworthiness.
[56] It is also an aggravating factor that Mr. Hanse has a conviction for manslaughter, in which he shot and killed another person with an illegal firearm.
[57] I consider denunciation and deterrence to be the paramount concerns. I recognize that the case law for possession of firearms that preceded the removal of the mandatory minimum sentence must be approached with caution. I agree that the presence of the mandatory minimum may have had the effect of creating an inflationary floor. However, I am mindful of sentences since Nur in which sentences in the five-year range continue to be imposed, notwithstanding the removal of the mandatory minimum. Indeed, in Nur the trial judge’s sentence of 40 months was upheld, even though the three-year minimum sentence was ultimately found to be unconstitutional.
[58] This was a business enterprise for Mr. Hanse, not a one-off incident. He carried on this business for profit without regard to the serious jeopardy this represents for the lives and safety of the people who live in our community. Mr. Hanse’s criminal record and his two prior prohibition orders are aggravating. Even though he was not separately charged with breaching the prohibition orders, it is a factor that warrants moving the sentence more towards the upper-end of the range than might otherwise be the case.
[59] Taking all of the factors I have cited above into account, including the mitigating factors I have noted, in my view the fit global sentence for Mr. Hanse for the offences other than marijuana trafficking is 4 years. I am therefore imposing a sentence of 4 years for the offence of transferring or offering to transfer ammunition. Given that the maximum sentence for attempting to possess a firearm is 2.5 years, I sentence Mr. Hanse to 2 years for that offence, to be served concurrently with the sentence for the ammunition offence.
Marijuana Offence
[60] I do not see the conspiracy to traffic in marijuana charge as being connected to the firearms and ammunition business. There is nothing to indicate that Mr. Hanse carried a firearm when engaged in his marijuana selling business. It is aggravating that he had a prior conviction for possession of cocaine for the purposes of trafficking in 2006. He was sentenced to one year for that offence. Although trafficking in marijuana is not as serious an offence, the existing drug-related record warrants imposing a sentence for marijuana trafficking that is somewhat higher than would otherwise be the case. I have disregarded the 2006 conviction for possession of marijuana which resulted in a $200 fine.
[61] In my view the appropriate sentence for the marijuana charge is 9 months. That is to be served consecutively to the other sentences.
Totality
[62] The total sentence imposed is 4 years and 9 months. I have considered the totality principle. These were very serious offences, dangerous to public safety. Mr. Hanse was engaged in the business of supplying guns and ammunitions, and also selling large quantities of marijuana illicitly. Looked at as a whole, I do not see this total sentence as being so crushing as to be oppressive or to defeat the recognition of other principles of sentencing. I see no reason to decrease the sentence because of the principle of totality.
Credit for Time Served and Time on Bail
[63] Mr. Hanse was in custody for 21 days before obtaining bail. He is entitled to the usual credit for time served at a rate of 1.5 to 1 for that period of time, a total credit of 30.5 days, which I will round up to 31 days.
[64] The initial terms of the bail required Mr. Hanse to be in his home, unless in the presence of one of his sureties. Although I recognize this is a form of house arrest, it is not as onerous as some bail conditions that permit the accused to be outside the home only for specific purposes such as attending doctors’ appointments and other necessaries. Nevertheless, applying the principles in R. v. Downes,[^35] I find that some credit is appropriate for the deprivation of liberty during this period of time. There is no prescribed formula for such a credit, although many of the cases discuss a range of 1 day to every 4 or 4.5 days under house arrest.[^36]
[65] Mr. Hanse was subject to the house arrest bail for 550 days (18 months, 10 days). Subsequently, Mr. Hanse’s bail was varied to impose only a curfew. This permitted him to be out of the house at normal hours and to carry on lawful employment. Some credit is appropriate for this period of time (approximately 14 months), but at a much reduced rate. The amount of credit to be given is discretionary and is not subject to precise mathematical calculation.
[66] Taking all of these circumstances into account, in my view a credit of 5 months for time served and the time on bail is appropriate.
[67] Thus, the sentence for Count 2, trafficking in ammunition, is 3 years and 7 months in addition to time served in custody and on bail, credited at 5 months. The sentence for the firearms offence remains 2 years concurrent. The sentence for the marijuana charge is 9 months consecutive, leaving a total of 4 years and 4 months remaining to be served.
Ancillary Orders
[68] In addition, there will be another prohibition order for life under s. 109 of the Criminal Code and a DNA order. There will also be a forfeiture order with respect to Mr. Hanse’s cellphone, which was used during the commission of all of these offences. The Crown is not seeking forfeiture of any of the other items seized.
MOLLOY J.
Released: March 21, 2019
COURT FILE NO.: 0026/18
DATE: 20190321
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KEVIN HANSE
Defendant
REASONS FOR SENTENCE
MOLLOY J.
Released: March 21, 2019
[^1]: Criminal Code, s. 718.1 [^2]: Criminal Code, ss. 718.2(d) and (e) [^3]: Criminal Code, s. 718 (a), (b), (d) and (f) [^4]: Criminal Code, s. 718.2 (b) [^5]: Criminal Code, s. 718.2 (a) [^6]: Criminal Code, s. 718.2 (c) [^7]: R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490, 201 O.A.C. 138 (Ont.C.A.); R. v. Brown, 2010 ONCA 745; R. v. Delchev, 2014 ONCA 448; R. v. Dufour, 2015 ONCA 426. [^8]: R. v. Mark, 2018 ONSC 447 at para. 27, and cases referred to therein. [^9]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. [^10]: Ibid, at paras. 112-115 [^11]: See, for example, R. v. Dufour, supra Note 2 at para. 8; R. v. Hersi, 2018 ONCA 1082 at para.19; R. v. Bullens, 2018 ONSC 5028 at paras. 24-32; R. v. Weir, 2018 ONSC 783 at para. 109; R. v. Mark, 2018 ONSC 447 at paras. 23-27; R. v. Stasky St. Clair, 2018 ONSC 7028 at paras. 43-48; R. v. Thavakularatnam, 2018 ONSC at para. 21. [^12]: [12] Nur, supra Note 9 at paras. 1 and 5. Nur, a 19-year-old first offender, had been sentenced to 40 months for possession of a loaded restricted firearm in a public area. Charles had a lengthy criminal record including five prior firearm-related offences. He had been sentenced to 7 years for possession of a loaded prohibited firearm with its serial number removed, ammunition, and an over-capacity magazine, all of which were in his bedroom in a Toronto rooming house. [^13]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. [^14]: R. v. Nur, supra Note 9 at para. 131 [^15]: R. v. Brown, supra Note 7, at para. 14 [^16]: R. v. Danvers, supra Note 7, at para. 78 [^17]: R. v. Kawal, 2018 ONSC 7531 at para. 13 [^18]: R. v. Mark, supra Note 8, at para. 24. [^19]: R. v. Thavakularatnam, supra Note 11, at para. 21. [^20]: R. v. Gomes, [2014] O.J. No. 6579 (S.C.J.) at para. 21. [^21]: R. v. Villella, 2006 CanLII 39324 (ON SC), [2006] O.J. No. 4690 (S.C.J.) at para. 46. [^22]: R. v. Dehaney, 2012 ONSC 3014. [^23]: R. v. Ellis, 2016 ONCA 358; 2016 ONCA 529. [^24]: R. v. Francis, 2017 ONSC 1505 [^25]: R. v. Francis, 2017 ONCJ 313 [^26]: Ibid at para. 65 [^27]: R. v. Bullens, 2018 ONSC 5082 [^28]: R. v. Hersi, 2018 ONCA 1082. [^29]: Ibid, at para. 19 [^30]: R. v. Ward-Jackson, 2018 ONSC 178 [^31]: R. v. Murphy, 2018 NLSC 256 at paras. 131 and 134 [^32]: R. v. Neary, 2016 SKQB 218 at para. 36 [^33]: R. v. Neary, 2017 SKCA 29 at para. 51 [^34]: Ibid, paras. 53-54 [^35]: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.) [^36]: See R. v. Fenton, 2017 ONSC 5945 at para.32, and cases referred to therein.