Court File and Parties

COURT FILE NO.: 18-R1846 DATE: 20190829 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen Crown – and – Miles Kempffer-Hossack Defendant

Counsel: Jason Neubauer and Julian Lalande, for the Provincial Crown Kelly Reitsma for the Federal Crown Ewan Lyttle, for the Defendant

HEARD: May 3, 2019 (at Ottawa)

Amended Reasons for Judgment

The text of the original Reasons for Judgment of June 20, 2019 was amended on August 29, 2019, at paragraph 42 and the explanation of the correction is appended.

parfett j.

[1] Mr. Kempffer-Hossack has pleaded guilty to three counts of transfer of firearms, contrary to s. 99(2) of the Criminal Code, ten counts of possession of a firearm without a licence, contrary to s. 100(2) of the Criminal Code and three counts of possession of schedule 1 drugs for the purpose of trafficking, contrary to s. 5(3) of the Controlled Drugs and Substances Act.

Background

[2] Mr. Kempffer-Hossack was arrested as part of an Ottawa Police Service guns and gangs unit investigation known as Project Sabotage. The project was instituted as a result of a perception that violence involving firearms had increased in the Ottawa area. The operational phase of this project started in August 2017 and ended in December 14, 2017. During that time, a police agent purchased firearms from several people in both Ottawa and Gatineau. The transactions were video recorded by police and conversations between the agent and the targets were recorded pursuant to wiretap authorizations.

Circumstances of the offence

[3] Mr. Kempffer-Hossack became known to police as a result of several transactions involving another target of Project Sabotage. This target brokered three deals between the police agent and Mr. Kempffer-Hossack. The first deal involved a handgun and 16 rounds of .38 caliber ammunition. The second deal involved a pistol grip, 12-gauge pump action shotgun and ten 12-gauge shotgun shells. The serial number on the stock had been ground out. The third deal involved a semi-automatic rifle with a modified stock and 25 rounds of ammunition as well as a separate magazine. All the firearms in these transactions were prohibited.

[4] Mr. Kempffer-Hossack’s residence was searched on December 14, 2017 and ten firearms, ammunition and illegal drugs were seized. The firearms seized were as follows:

• Simonov semi-automatic rifle;
• Akkar 12-guage shotgun;
• Browning .22 caliber, semi-automatic rifle;
• 4 Aral 9mm semi-automatic handguns;
• Cobray m11 handgun;
• Skorpion automatic handgun;
• High-capacity magazine for the Simonov rifle; and
• Mossberg Maverick 12-guage sawed off shotgun.

[5] The drugs seized were 27.6g of crystal meth, cannabis products with a street value of more than $7,900, 184 methamphetamine tablets and 34g of amphetamines.

Circumstances of the offender

[6] Mr. Kempffer-Hossack is 22 years old and therefore, a young man. He has no criminal record.

[7] Mr. Kempffer-Hossack experimented with drugs and consequently was led astray, became involved with people who were involved in the criminal underworld and was estranged from his family. His background growing up would not have led one to believe that he would have ended up in a criminal court. At the time of these events, Mr. Kempffer-Hossack was using hard drugs.

[8] As noted in the letters of support filed on his behalf, Mr. Kempffer-Hossack began using drugs in his mid-teens. This situation caused tension within the family home and ultimately led to his parents asking him to leave. According to his parents, it was after this that Mr. Kempffer-Hossack’s problems worsened. For almost two years, his parents had very little contact with him.

[9] During the time that Mr. Kempffer-Hossack has been in custody, he has stopped using drugs.

[10] Mr. Kempffer-Hossack has limited education. He did not finish high school. However, he has plans to complete his education while he serves his sentence.

[11] There is very little evidence that Mr. Kempffer-Hossack earned any significant profits as a result of his trafficking in firearms. He was not found with any cash at time of arrest and there was no money in the house when it was searched by police.

[12] There is evidence that Mr. Kempffer-Hossack had an interest in the Hell’s Angels, although no evidence that he was actually involved with them.

[13] Mr. Kempffer-Hossack has the support of his family.

Impact on the community

[14] This type of offence is not a victimless crime. In 2016, the City of Ottawa experienced an increase in gun violence and homicides. There were 68 shootings in the city and 12 homicides committed with a firearm of which nine were gang related. In 2017, there were 75 shootings and seven firearm related homicides, of which four were gang related. 2018 and 2019 together saw 98 shootings as of April 2019 and 9 homicides committed with firearms.

[15] Not all shootings or gun related homicides in Ottawa were committed with illegally obtained weapons, but a portion were. Those guns would have been obtained from people like Mr. Kempffer-Hossack.

Principles of sentencing

[16] Section 718 of the Criminal Code sets out the governing principles of sentencing. That section states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[17] Given the gravity of these offences and the combination of both gun and drug offences, the primary sentencing principles are denunciation and deterrence. As noted by the Ontario Court of Appeal in R. v. Wong:

The courts have repeated emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

These offences [call] out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone [warrant] a significant jail term. [1]

[18] That said, because of Mr. Kempffer-Hossack’s youth, specific deterrence and rehabilitation are also important considerations on sentencing in this case.

[19] Two other sentencing principles set out in the Criminal Code have a significant impact on this sentencing hearing. Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] In addition, s. 718.2(d) points out that, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” The principle of parity as expressed in s. 718.2(b) of the Code requires that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Green:

The task is to compare the Defendant to other similarly situated offenders, while at the same time keeping in mind the unique personal circumstances of each person coming before the court. As the Ontario Court of Appeal has put it, sentencing ‘is a fact-sensitive process. Imposing a sentence depends very much on the facts of a particular case and the circumstances and culpability of the particular offender. That said, the sentence imposed must be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.’ [2]

[21] Finally, the totality principle as set out in s. 718.2(c) of the Code plays a role in this sentencing.

Mitigating and aggravating factors

[22] The mitigating factors in this matter include Mr. Kempffer-Hossack’s plea of guilt and the fact he is a youthful, first-time offender with no prior criminal record.

[23] The primary aggravating factor is the fact that these offences involved restricted or prohibited weapons. The quantity of weapons and ammunition is also an aggravating feature of this case. Moreover, as noted in R. v. Chin, “mere possession of loaded firearms is inherently dangerous” and “when such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away.” [3]

[24] In addition, these transactions were well thought-out and involved coordination with other people. They cannot be described as opportunistic crimes.

[25] The drugs found in Mr. Kempffer-Hossack’s residence are very serious. As noted in R. v. Brown, [4] “Methamphetamine is a highly addictive drug in the same category as cocaine and heroin. An addiction can arise easily and once in place is extremely difficult to overcome.” [5]

[26] Another aggravating factor was the fact there was a booby-trapped window in Mr. Kempffer-Hossack’s house as well as three other potential explosive devices. The booby-trap and the devices created an extremely dangerous environment, not only for Mr. Kempffer-Hossack, but also for anyone entering his home and for all his neighbours.

[27] Furthermore, the selection of drugs available for purchase in Mr. Kempffer-Hossack’s residence created a “drug boutique”, and where there is a wide variety of drug choices, that must be considered an aggravating factor. [6]

[28] Finally, the combination of drugs and guns is a particularly dangerous one. This is so, because “in effect guns are ‘tools of the trade’ of drug traffickers.” [7]

Positions of counsel

[29] Defence counsel is seeking a custodial sentence 6 years, less pre-sentence custody (PSC). As of May 3, 2019, Mr. Kempffer-Hossack had accumulated 520 days of PSC. At a credit of 1.5 for 1, Mr. Kempffer-Hossack would receive credit for 720 days of PSC.

[30] Although this plea did not occur at an early point in the process, according to all counsel it took place at the first reasonably available opportunity. It took a long time for the Gatineau charges to be finalized and then be transferred to Ottawa. As all counsel noted, this plea spares both jurisdictions the cost of lengthy and complicated trials.

[31] Defence counsel argued there was both inaccurate and prejudicial media reporting of this case. He asks that in crafting a sentence, the potential prejudice of this reporting be considered. He pointed out that this investigation was heavily publicized and that Mr. Kempffer-Hossack’s name was mentioned as part of a group of people who were described as “prolific, violent and repeat offenders.” Mr. Kempffer-Hossack does not have a criminal record or a history of violence and therefore, cannot be described in such a fashion.

[32] Defence counsel contended that this inaccurate reporting will have an impact on Mr. Kempffer-Hossack’s rehabilitation. He suggested that it is common in today’s world for potential employers to “Google” a potential employee. In Mr. Kempffer-Hossack’s case, a search of his name would an association with people who are indeed violent, repeat offenders. This information could negatively affect Mr. Kempffer-Hossack’s employment efforts and/or his ability to find housing.

[33] Defence counsel pointed to the case of R. v. Joseph [8] where the court held that inaccurate reporting had caused the accused irreparable damage. However, as noted by the Crown, the Joseph case was quite different from the present situation. While Mr. Kempffer-Hossack could not be described as a repeat offender, he has been convicted of weapons offences involving a total of 13 weapons. The quantity of firearms and the fact they are designed to commit violence means that it is not inaccurate to describe him as prolific and violent.

[34] Defence counsel conceded that the primary principles of sentencing in this matter are denunciation and deterrence. However, he argued that as Mr. Kempffer-Hossack is young, the court must also consider rehabilitation and specific deterrence. As noted in the letters of support, Mr. Kempffer-Hossack’s family believes that he has changed, and that rehabilitation is a realistic goal.

[35] The Crown stated that an exemplary sentence is required; one that prioritizes the principles of denunciation and deterrence. Crown argued that the sentences for each of the trafficking of weapons offences normally should be consecutive to one another. However, the Crown acknowledged that consecutive sentences in this case would offend the principle of totality. Consequently, the Crown stated that the sentence in this case should be 10 years custody, less PSC.

[36] Crown counsel cited several cases involving gun-related offences. These cases indicate that the range of custodial sentence in such cases is 6-12 years. He also advised the court of the sentences imposed on other offenders involved in Project Sabotage. In those cases, the offenders received between 4- and 8-years’ jail. However, none of those cases was similar to the present situation.

[37] Crown counsel argued these offences involved a high degree of moral blameworthiness that reinforces the need for denunciation. Mr. Kempffer-Hossack did not know that each time a transaction was concluded, the police were removing the weapons from the streets. As far as Mr. Kempffer-Hossack was aware, he was part of a business designed to put dangerous weapons on the street to be used by criminals.

[38] Crown counsel is seeking three ancillary orders: a forfeiture order, a DNA order and a s. 109 weapons prohibition for life. Defence counsel does not oppose any of these orders.

[39] The Federal Crown pointed out that the drugs found in Mr. Kempffer-Hossack’s home are very serious and that in particular, methamphetamine is not a drug that is commonly seen in Ottawa. She noted the very serious effects that methamphetamine can have on those who use it. The Federal Crown suggested that a sentence in the range of 2-3 years would be appropriate in the circumstances. However, she also stated that the principle of totality requires that any sentence imposed for these drug offences should be concurrent to the sentence imposed for the weapons offences.

Conclusion

[40] In considering where on the continuum of sentences for weapons and drug offences this case ought to fall, I note that Mr. Kempffer-Hossack has expressed remorse through his plea of guilt and that he has no prior criminal record. In addition, I also note the fact that Mr. Kempffer-Hossack is still relatively youthful, has the support of his family, has been able to remain free of illegal substances while in custody and has expressed a desire to continue his education, means that rehabilitation is a realistic possibility.

[41] However, I must balance the above factors with the seriousness of these offences and the impact that gun violence has had on our community. Without repeating the principles outlined earlier in this sentencing, these offences are deserving of an exemplary sentence that takes into consideration both denunciation and deterrence.

[42] With these objectives in mind, I am of the view that an appropriate sentence in this case is 9 years’ custody to be broken down as follows:

• On counts #1, 2 & 3 – 6 years’ custody on each count, concurrent one to the other;
• On counts #4, 5, 6, 7, 8, 9, 10 & 11 – 3 years’ custody on each count, concurrent to one another, but consecutive to counts 1, 2 & 3; and
• On counts #12, 13 & 14 – 2 years’ custody, concurrent to one another and concurrent to all other counts.

[43] The total sentence is 9 years, less pre-sentence custody. The credit for pre-sentence custody is calculated as 830 days (or 30 months). [9]

Ancillary Orders

[44] There will also be the following ancillary orders:

• DNA order;
• Section 109 weapons prohibition for life; and
• Forfeiture order.

Madam Justice Julianne Parfett Released: August 29, 2019

Appendix

The text of the original Reasons for Judgment of June 20, 2019 was amended on August 29, 2019, at paragraph 42 as follows:

[42] With these objectives in mind, I am of the view that an appropriate sentence in this case is 9 years’ custody to be broken down as follows:

• On counts #1, 2 & 3 – 6 years’ custody on each count, concurrent one to the other;
• On counts # 4 , 5, 6, 7, 8, 9, 10 & 11 – 3 years’ custody on each count, concurrent to one another, but consecutive to counts 1, 2 & 3; and
• On counts #12, 13 & 14 – 2 years’ custody, concurrent to one another and concurrent to all other counts.

Footnotes

[1] 2012 ONCA 767 at paras. 11-12. [2] 2015 ONSC 6290 at para. 17, citing R. v. Bottineau, 2011 ONCA 194. [3] 2009 ABCA 226 at para. 10. [4] 2014 ONCJ 179. [5] At para. 17. [6] R. v. Paper, 2010 ONCJ 88, [2010] O.J. No. 1131 (OCJ) at para. 94. [7] R. v. Griffith, 2019 ONSC 358 at para. 20. [8] 2018 ONSC 4646. [9] 553 actual days of PSC x 1.5 = 830 days.