R. v. Tennant, 2019 ONSC 1764

COURT FILE NO. CR-17-50000746-0000 DATE: 20190319 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Jim Cruess for the Crown

• and -

SKOT TENNANT Sam Goldstein for Mr. Tennant

HEARD: March 18, 2019

REASONS FOR SENTENCE CORRICK J. (orally)

Introduction

1On December 18, 2018, following a trial, I found Mr. Tennant guilty of six counts on an indictment as follows:

• Count 1 – possession of a prohibited firearm with readily accessible ammunition without a licence, contrary to s. 95(1) of the Criminal Code
• Count 2 – possession of a prohibited firearm knowing he was not the holder of a licence, contrary to s. 92(3) of the Criminal Code
• Count 3 – possession of a prohibited firearm without holding a licence, contrary to s. 91(3)(a) of the Criminal Code
• Count 5 – careless storage of ammunition, contrary to s. 86(3)(a) of the Criminal Code
• Count 6 – possession of a firearm while prohibited by reason of a court order, contrary to s. 117.01(3)(a) of the Criminal Code
• Count 7 – possession of a firearm while prohibited by reason of a court order, contrary to s. 117.01(3)(a) of the Criminal Code.

2Mr. Tennant appears before me today for sentencing on all counts.

Circumstances of the Offences

3On December 23, 2016, Mr. Tennant attended the apartment of Jade Osei to obtain sexual services. Ms. Osei called the police after finding a .32 calibre handgun and a container of ammunition that could be fired by the handgun in Mr. Tennant’s backpack. Police attended, seized the firearm and ammunition, and arrested Mr. Tennant.

4At the time, Mr. Tennant was subject to an order made pursuant to s. 109 of the Criminal Code on August 7, 2008 that prohibited him from possessing firearms and ammunition.

Circumstances of the Offender

5Mr. Tennant is 40 years of age. He is a single man. He has lived with his parents in Markham for the past seven years. He assists his parents, who are now senior citizens. He grew up in a loving, stable home with the presence of both of his parents. They continue to support him and have attended many of his court appearances.

6He has one son, who is 14 years old. The author of the pre-sentence report noted that Mr. Tennant had, at one point, been actively involved with his son, but is not currently.

7Mr. Tennant has the following criminal record. It is noteworthy that it contains seven convictions for breaching a court order. It is also significant that it ends in 2008.

• 1996-10-18
  • Break and enter with intent
  • Probation 12 months
• 1997-05-22
  • (1) Fail to comply with probation order
  • (2) Obstruct peace officer
  • (1) 15 days (2) 15 days concurrent & (5 days pre‑sentence custody)
• 1997-08-25
  • (1) Assault with a weapon
  • (2) Fail to comply with probation order
  • (1) 25 days (2) 5 days consecutive
• 2005-02-22
  • Assault
  • 15 days & probation 1 year
• 2005-04-08
  • (1) Break enter & theft
  • (2) Fail to comply with recognizance x2
  • (3) Assault
  • (1) 84 days & probation 3 years & discretionary Prohibition Order
  • (2-3) 84 days on each charge concurrent & concurrent
• 2008-05-09
  • (1) Theft under $5000
  • (2) Mischief under $5000
  • (3) Fail to comply with recognizance
  • (4) Fail to comply with probation order x2
  • (5) Uttering threats
  • (6) Assault
  • (7) Robbery
  • (1-6) 1 day & probation 2 years on each charge concurrent
  • (7) 1 day & probation 2 years concurrent & (187 days pre‑sentence custody) & mandatory s.109 order

8Mr. Tennant completed high school in 1999 and obtained a college diploma in business management in 2002. At his trial, he testified that he works as a graphic designer, disc jockey and event planner, planning and promoting night club events.

9The pre-sentence report notes that Mr. Tennant does not have a substance abuse problem, although he smokes marijuana irregularly, and has experimented with cocaine. However, evidence was led at trial that the police seized a crack pipe and push rod, which is used for smoking crack, from Mr. Tennant’s fanny pack.

Legal Parameters

10Possession of a prohibited firearm with readily accessible ammunition is punishable by a maximum of ten years in prison. Possession of a prohibited firearm contrary to a prohibition order is also punishable by a maximum of ten years in prison. Careless storage of ammunition is punishable by a maximum of two years in prison.

Positions of the Parties

11Mr. Cruess submits that a total sentence of five and one-half years in prison is a fit disposition, given the aggravating factors in this case and the need for an exemplary sentence to achieve the sentencing objectives of deterrence and denunciation. He also seeks a weapons prohibition order for life, a DNA order and an order prohibiting Mr. Tennant from communicating with Ms. Osei while he is serving his sentence.

12Mr. Goldstein submits that the appropriate disposition is a sentence of three and one-half years in prison. In his submission, this is in keeping with sentences imposed in similar cases and recognizes Mr. Tennant’s rehabilitation prospects.

Governing Sentencing Principles

13In determining a fit sentence for Mr. Tennant, I am governed by the sentencing principles set out in the Criminal Code.

14The 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:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

15The second is the principle of proportionality set out in s. 718.1. The sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

16I 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

17To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.

18Mr. Cruess and Mr. Goldstein have each provided me with cases in support of their respective positions on the appropriate sentence.

19The decisions relied on by Mr. Cruess emphasize the need for the imposition of exemplary sentences for the illegal possession of firearms to achieve the sentencing objectives of denunciation and deterrence.

20He relies in particular on two cases that I have decided and submits that the circumstances of Mr. Tennant’s case place him between the sentences I imposed in those cases.

21The first decision is R. v. Bryce 2016 ONSC 7897 in which I sentenced a 21-year-old offender to three and one-half years for possession of a loaded prohibited firearm and nine months consecutive for possession of the firearm in breach of a s. 109 order.

22The second decision is R. v. Douale 2018 ONSC 3658 in which I sentenced a 32-year-old offender to five years in prison for possession of a loaded prohibited firearm and one year consecutive for possession of the firearm in breach of two s. 109 orders.

23In Bryce, the offender transported a loaded firearm beside the driver’s seat of his car while he drove on city streets. When he stopped in the driveway of a home on a residential street, police approached him and removed the satchel containing the firearm from the car. The offender attempted to grab the satchel out of the officer’s hands. They struggled for the satchel while members of the public passed by on the sidewalk.

24The offender testified that he had been shot two weeks previously and possessed the firearm for his own protection. He also testified that he was prepared to use it if necessary, to protect himself.

25The offender had a criminal record that included serious violent offences and a failure to comply with a recognizance. He was on probation at the time of the offences.

26The circumstances of the offence in Bryce were more aggravating than in the case at bar. The offender’s struggle with the officer for the firearm was extremely dangerous and put members of the public at risk. However, he was a youthful offender, albeit with only vague prospects for rehabilitation. Mr. Tennant is a mature offender, who has demonstrated an ability over eight years to stay out of the criminal justice system.

27In Douale, the offender was a drug dealer who armed himself with a loaded firearm before he went to a bar to sell someone cocaine. Before putting the firearm in his waistband, he took the safety off so that it was ready to fire if necessary. After leaving the bar, he instigated a physical confrontation with another man on the street. During the ensuing altercation with two men, the offender brandished the firearm in an effort to frighten the men off. There was a struggle for the firearm during which the firearm was waved around. A crowd of people had gathered around on the street.

28Police arrived and ordered the offender to drop the gun. The offender refused, had to be tackled to the ground, and the gun pried out of his fingers.

29The offender had a lengthy criminal record that reflected, among other things, his drug trafficking activities. He had also been convicted of nine counts of breaching a court order. The last entry on his record was four years prior to the commission of the offence. He, too, had very poor prospects for rehabilitation.

30Of course, no two cases are the same. The circumstances of the Douale case are more aggravating than the circumstances of the case at bar. The offender used the loaded firearm as a tool in his drug trade. He brandished it on a public street in the presence of a crowd of people when he knew it was loaded and the safety was off. When faced with armed police officers ordering him to drop the firearm, he refused. The sentence imposed reflected those seriously aggravating circumstances.

31On the other side of the equation, the offender had wanted to plead guilty to the firearm offences but not to a robbery offence of which he was acquitted by the jury. In that sense, he had accepted responsibility for his actions.

32Mr. Goldstein relies on the decision of R. v. McKenzie 2016 ONSC 5025 in support of his position that a total of three and one-half years is the appropriate disposition in this case. In that case, Justice Campbell sentenced the offender to three years for possessing a firearm with readily accessible ammunition, and six months consecutive for breaching a weapons prohibition order. The firearm was discovered in a dresser drawer in a bedroom that the offender shared with his spouse. He was 33 years old and had a criminal record, which included two convictions for breaching a court order. The last conviction on his record was five years before the commission of the offences. He was in a long-term relationship with three children and had owned and operated his own business for seven years.

33An important distinguishing feature of the McKenzie case is that the offender did not carry the firearm outside of his home or take it into another person’s home.

34I have reviewed the other decisions submitted by Mr. Cruess in support of his position. Although the cases assist me in determining the governing principles that must guide my decision, a careful review of them 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.

35Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Tennant within that range.

36What is clear from the jurisprudence is that a conviction for possession of a loaded firearm or a firearm with readily accessible ammunition will attract a substantial prison term. The danger that firearms pose to the safety and security of our community demands an emphasis on denunciation, specific and general deterrence, and protection of the public.

Impact on the Victim

37Ms. Osei submitted a Victim Impact Statement that Mr. Cruess read to the court. She indicated that following the offence, she was fearful that Mr. Tennant had informed other people about what had happened. She feared reprisals. She also indicated that she lost approximately $1,300 in income as a result of Mr. Tennant stealing her cell phone. I pause here to indicate that Mr. Tennant was not charged or convicted of any offence in relation to the theft of Ms. Osei’s cell phone, and I have not taken this into consideration when determining the appropriate sentence.

Aggravating and Mitigating Circumstances

38I turn now to consider the aggravating and mitigating circumstances.

39First the aggravating factors.

1. Mr. Tennant is a mature offender with a fairly lengthy criminal record that includes crimes of violence. The last entry on his criminal record in 2008 includes convictions for assault and robbery, both crimes of violence.
2. He took this firearm and ammunition into another person’s home without her consent or knowledge.
3. Mr. Tennant has demonstrated a repeated disregard for court orders. He has been convicted of seven offences involving the breach of a court order.
4. Although there is no evidence before me to explain Mr. Tennant’s possession of this firearm, handguns in the hands of unlicensed people have only one purpose – to intimidate, maim or kill people.

40Mr. Cruess submitted that the court should consider Mr. Tennant’s possession of a crack pipe and push rod together with the firearm as an aggravating factor. It is well recognized by the jurisprudence that the combination of guns and drugs is a deadly mix. However, in the absence of evidence that Mr. Tennant was in possession of drugs, or was trafficking in drugs, I am not satisfied that this is an aggravating factor in this case.

41Similarly, I am not prepared to speculate on the length of time that Mr. Tennant had possessed the firearm before arriving at Ms. Osei’s apartment. Mr. Cruess argued that it was an aggravating feature of this case that Mr. Tennant drove around the city with the firearm in his car between December 22 at 10:45 p.m. and arriving at Ms. Osei’s apartment just before noon on December 23. On the basis of Mr. Tennant’s evidence at trial and his cell phone records, there was no opportunity for him to stop and pick up a firearm, according to Mr. Cruess. However, I rejected Mr. Tennant’s evidence. There is no evidence about when or where he obtained the firearm, and I do not consider this an aggravating feature of this case.

42I have also considered the following mitigating factors:

1. It has been more than eight years since Mr. Tennant has been involved in the criminal justice system. He has been on a judicial interim release order for more than two years without further criminal behaviour. This demonstrates his good rehabilitative prospects.
2. He has been working as a disc jockey and attempting to build a business as a graphic designer.
3. He has strong support in the community. His parents continue to stand by him and will welcome him back to their home when he is released from prison. His relationship with his parents will assist him in his rehabilitation.
4. There is no evidence that Mr. Tennant ever discharged the firearm or used it in any way to threaten or harm anyone.

Determination of a Fit Sentence

43Mr. Goldstein submitted that I should consider the racism and discrimination that Afro-Canadians have historically suffered in determining the appropriate disposition. He referred me to the decision of R. v. Jackson 2018 ONSC 2527 in support of his submission.

44In the absence of any evidence that Mr. Tennant’s commission of this crime is connected to any systemic racism that he has experienced, I am not prepared to consider this a factor. I rely on Justice Doherty’s comments in R. v. Hamilton (2004), 72 O.R. (3d) 1. At para. 133, Justice Doherty wrote, “The fact that an offender is a member of a group that has historically been subject to systemic racial and gender bias does not in and of itself justify any mitigation of sentence.”

45As I have already indicated, denunciation and deterrence, both general and specific are of paramount importance in cases involving the illegal possession of firearms. Fourteen 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: R. v. Danvers (2005), 199 C.C.C. (3d) 490, at para. 78. Unfortunately, this concern, now heightened, persists to the present day.

46Mr. Tennant’s illegal possession of a handgun with readily accessible ammunition warrants a custodial sentence that adequately expresses society’s condemnation of his conduct.

47As Justice Doherty indicated in R. v. Nur, 2013 ONCA 677, “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation:” at para. 206.

48However, rehabilitation cannot be overlooked, for the rehabilitation of the offender is ultimately the best way to protect the public. I agree with Mr. Cruess that Mr. Tennant has not accepted responsibility for his actions. However, he pleaded not guilty as was his right. He was found guilty. I am not prepared to treat his failure to acknowledge his offence as aggravating in these circumstances.

49In all of the circumstances of this case, in my view, the appropriate disposition before giving Mr. Tennant credit for the time he spent in pre-trial custody and subjected to stringent conditions of release, is a total sentence of four and one-half years. The sentence shall be broken down as follows:

• Count 1 – unauthorized possession of a firearm with accessible ammunition – 3.5 years
• Count 5 – careless storage of ammunition – 1 year concurrent
• Count 6 – breach of a s. 109 order – 1 year consecutive
• Count 7 – breach of a s. 109 order – 1 year concurrent to count 6

50I recognize that this is a significant jump from any sentence he has previously received. However, in my view, it is the fit disposition taking into account all of the aggravating and mitigating circumstances. The application of the jump principle cannot lead to the imposition of a sentence that does not adequately address the gravity of these offences.

Credit for Pre-Sentence Custody

51Mr. Tennant will be given nine days credit for the six days he spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers 2014 SCC 26.

Credit for Stringent Conditions of Release

52On December 29, 2016, Mr. Tennant was released on house arrest terms that prohibited him from being outside of his home unless he was in the direct continuous presence of his surety. Nine and one-half months later, in October 2017, the terms of his judicial interim release order were relaxed on consent of the Crown. The house arrest condition was amended to permit him to be outside of his residence between the hours of 8:00 a.m. and 9:00 p.m. with a signed, dated letter from his surety.

53Mr. Tennant has abided by the conditions of his judicial interim release orders.

54These conditions were a significant restriction on Mr. Tennant’s liberty at a time when he was presumed innocent, and he is entitled to some credit for them: R. v. Downes (2006), 79 O.R. (3d) 321, at para. 37 (C.A.).

55Given the duration of these restrictions, I will credit Mr. Tennant with 90 days.

56In total, the sentence that I would otherwise have imposed on Mr. Tennant will be reduced by 99 days. To make the math easier, I will deduct the 99 days from the one-year sentence on counts 6 and 7.

Rule Against Multiple Convictions

57Counsel agree that counts 2 and 3 ought to be conditionally stayed pursuant to the rule against multiple convictions: R. v. Kienapple, [1975] 1 S.C.R. 729.

58There will therefore be convictions registered on Counts 1, 5, 6 and 7.

Ancillary Orders

59I also make the following ancillary orders.

60Mr. Tennant will be subject to a weapons prohibition order for life.

61The gun and ammunition seized from Mr. Tennant will be forfeited to the Crown pursuant to s. 491(1) of the Criminal Code.

62I authorize the taking of a DNA sample from Mr. Tennant pursuant to s. 487.051 of the Criminal Code.

63Finally, pursuant to s. 743.21(1) of the Criminal Code, I order that Mr. Tennant not communicate, directly or indirectly, with Jade Osei.

Conclusion

64In conclusion, Mr. Tennant, you are sentenced to 3.5 years on count 1. On count 5, you are sentenced to one year concurrent. On counts 6 and 7, the s. 109 breach counts, you are sentenced to 266 days on each concurrent to each other and consecutive to the sentence on count 1.

Corrick J.