Her Majesty the Queen v. Steven Douglas Cass

COURT FILE NO.: 17-A10392

DATE: December 16, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEVEN DOUGLAS CASS

COUNSEL:

Juliana Martel for the Crown

Paul Lewandowski for the Defendant

SENTENCING SUBMISSIONS HEARD: December 16, 2019

Reasons for sentencing

S. GOMERY J.:

[1] After a five-day trial, a jury found Steven Cass guilty of ten counts of making a false report to police about the theft of ten handguns, contrary to s. 107 of the Criminal Code; one count of public mischief based on the same false report, contrary to s. 140 of the Code; and ten counts of weapons trafficking, contrary to s. 99 of the Code. I must now determine Mr. Cass’ sentence.

General sentencing principles

[2] A sentence “must be proportionate to the gravity of the offence and the degree or responsibility of the offender”; s. 718.1. It must reflect respect for the law and maintenance of a just, peaceful and safe society. The goals of sentencing include general and specific deterrence, denunciation of the criminal activity and the rehabilitation of the offender.

[3] In imposing a sentence, I must consider any aggravating or mitigating factors. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. I must exercise restraint in imposing imprisonment, insofar as it is possible considering the nature of the offence and the circumstances of the offender.

Circumstances of the offences

[4] On January 23, 2017, Mr. Cass phoned 911 to report that someone had broken into his house and stolen ten handguns. Mr. Cass had purchased these guns from three stores in Ottawa in 2016. He told police that he kept them in a safe in a locked bedroom.

[5] The police did not immediately suspect that Mr. Cass was anything other than a crime victim. He had a licence to possess restricted firearms. He said that he belonged to a local shooting club and that he had been away at a cottage for most of the weekend preceding the theft. A forensics specialist took pictures of the broken lock on the bedroom door and the door ripped off the front of the safe. The investigation was assigned to the Ottawa Police Services’ break and enter unit.

[6] When Mr. Cass was interviewed at greater length in February 2017, the investigating officer became suspicious. Mr. Cass was visibly anxious and talked incessantly. He denied that anyone had visited his house in the days prior to the theft, even though he had mentioned visitors to another police officer. He could not explain how the thief knew where the guns were stored. When they visited his house on January 23 and 24, 2017, the police had noted no signs of any disturbance or theft anywhere else in the house and no sign of forced entry to the house. They also observed that Mr. Cass was calm and composed.

[7] In March 2017, Mr. Cass gave a second interview to police during which he confessed that he had lied in reporting the break and enter in January. The guns were not stolen in January but had instead been removed from his house by his drug dealer Fara Rata in November 2016.

[8] At this interview, Mr. Cass said that he was addicted to cocaine and crack cocaine. Mr. Rata had been storing his supply of drugs in the safe in Mr. Cass’ house for some time. In return, Mr. Rata would give Mr. Cass some cocaine whenever he came by the house to pick up some of his supply. Mr. Rata had a key to the house and to the bedroom where the drugs were kept.

[9] In 2016, Mr. Rata began asking Mr. Cass to buy handguns. Mr. Rata would pick Mr. Cass up at his house and give him a stack of small bills to make the purchase. They would drive to Mr. Cass’ bank, so he could exchange the bills for larger denominations. They would then drive to a local gun store, where Mr. Cass would buy the gun selected by Mr. Rata. They would return to the store a week or so later when it notified Mr. Cass that it had received the paperwork required for him to transport the gun to his house. In return for buying the guns, Mr. Rata would supply Mr. Cass with more cocaine. Mr. Cass purchased ten handguns this way in 2016.

[10] According to Mr. Cass, this arrangement continued until November 2016. On November 13, 2016, he returned home from an exotic fish convention in Montreal. He had no cocaine on hand, so broke into the safe in the bedroom to get some. When Mr. Rata came by the house a couple of days later, he removed the rest of the drugs and the ten handguns from Mr. Cass’ house.

[11] Mr. Cass told police that, in the weeks that followed, Mr. Rata phoned him several times to tell him that he must report the handguns as stolen. When Mr. Cass did not do so, Mr. Rata eventually came to the house on January 23, 2017 and beat him until he picked up the phone and dialled 911 to make the false report.

[12] At trial, Mr. Cass testified that he never expected that Mr. Rata would take the handguns from his house, since they were registered to his name. He also said that the guns were kept mostly in dresser drawers, and not the safe, but that he alone had a key to the cases in which they were stored. Mr. Cass admitted, however, that the guns were selected by Mr. Rata and purchased with his money, and that he had no need for them, since he did not in fact belong to a shooting club. He also admitted that he was the person who had broken the lock on the bedroom door. Although he claimed that both he and Mr. Rata had a key to this door, he testified that he had been unable to find his copy on November 13, 2016.

[13] In defence of the charges of false reporting and public mischief, Mr. Cass argued that he had acted under duress. He maintained that Mr. Rata, who was younger, stronger and bigger than he was, physically assaulted him until he called the police to make the false report. Although Mr. Rata left as soon as Mr. Cass began to make the phone call, he feared that he would return, and so did not immediately tell the police that he had made a false report. In defence of the weapons trafficking charge, he contended that Mr. Rata had taken the guns without his consent, and that he did not transfer the guns to Mr. Rata or intend to do so.

[14] After deliberating for a day, a jury found Mr. Cass guilty on all counts of the indictment.

[15] I reject, as the jury necessarily must have, that Mr. Cass thought he was going to keep the guns chosen by Mr. Rata and purchased with Mr. Rata’s money. Mr. Cass’ story about how the guns were removed from his house in November 2016 was fundamentally implausible. The guns cost several thousand dollars. According to Mr. Cass, when Mr. Rata discovered that he had broken into the safe and stolen drugs from him, he did not get angry, but simply removed the rest of his stash and the guns.

[16] I also reject, as the jury did, Mr. Cass’ evidence that he made the false report under duress. Mr. Cass never explained Mr. Rata’s motivation for pressuring him to report the theft of the guns from his house, and his testimony about the circumstances in which he made the 911 call was not credible. The evidence as a whole did not give rise to any reasonable doubt about his intent in making the false report.

[17] Mr. Cass purchased firearms on Mr. Rata’s behalf because he had a licence that allowed him to do so, and Mr. Rata supplied him with cocaine. Mr. Cass knew, when he purchased the guns and provided them to Mr. Rata, that they would be used for nefarious purposes, in connection with Mr. Rata’s activities as a drug dealer. He must have known, given the way in which the guns were purchased and his longstanding knowledge of how Mr. Rata made a living.

Mr. Cass’ circumstances

[18] Mr. Cass is fifty-five years old. He has lived in Ottawa almost his whole life. He completed high school and some college but testified that he failed some subjects. He was diagnosed with Attention Deficit Hyperactivity Disorder as an adult. Despite this, he obtained work and remained gainfully employed for almost thirty years.

[19] Mr. Cass is unmarried and has no children. His parents and a brother live in Ottawa.

[20] Mr. Cass was addicted to cocaine and alcohol from a young age. He lived with his parents until he was in his forties, when he had his first serious romantic relationship with a female co-worker. The relationship ended in or around 2015. Mr. Cass lost his job around the same time, due to his drug addiction. He remained in the house that his parents purchased for him and his girlfriend. In a letter to the court filed during sentencing submissions, his brother Chris Cass described Mr. Cass’ situation in 2016 as desperate; he did not have enough food for groceries and his parents managed his bills and paid them.

[21] After Mr. Cass’ second police interview in March 2017, he moved out of his house and lived in a shelter for a period of time. He entered a rehabilitation program through the Ottawa Mission in July 2017, which he completed in February 2018. An additions and trauma counsellor with the Mission reported in October 2018 that Mr. Cass was seriously invested in his recovery process, which was ongoing. He himself testified that he has been clean for about two years.

[22] In April 2019, Mr. Cass began to participate in a Salvation Army housing program. He currently lives in a subsidized apartment. He is regularly employed doing manual labour for a little above minimum wage. According to a letter from a case manager at the Salvation Army, on weekends he does odd jobs for his parents and spends time with his nieces and nephews. He will lose his job and his housing if he sent to jail.

The nature of the offences

[23] Weapons trafficking is a very serious crime. It promotes violent criminal activity and “strikes at the heart of a civil society”; R. v. Radjenovic, 2012 BCSC 630. Crimes involving the use of guns and proliferation of such crime are a grave concern for our community, as observed in such decisions as R. v. Friesen, 2016 BCSC 1679, R. v. Winchester, [2014] OJ No 1990, and R. v. Villella, 2006 CanLII 39324 (ON SC), [2006] O.J. No. 4690. Guns in the hands of persons who would use them for criminal purposes not only puts innocent lives at risk but undermines the rule of law and the effectiveness of the police and our justice system as a whole.

[24] The trafficking of handguns is particularly malignant. As noted in R. v. Stover, 2018 BCPC 198, at paras. 34, these weapons serve no lawful purpose in our society. They are easily concealed and designed to kill or injure. Transferring such weapons to someone who does not have a licence to possess them represents “a complete abandonment of law-abiding behaviour” by someone who has the legal authority to buy such weapons; Stover, at para. 35. The seriousness of these crimes cannot be overstated.

[25] The other offences that Mr. Cass has committed are much less serious but by no means trivial. Mr. Cass’ false report to police in January 2017 not only wasted police resources but delayed a meaningful investigation into the whereabouts of the firearms for several months.

The parties’ positions on sentencing

[26] Mr. Cass’ lawyer Mr. Lewandowski proposes a sentence of two years less a day, to be served in the community, so that he can continue to attend work and rehabilitation programs.

[27] Crown counsel Ms. Martel seeks a custodial sentence of eight years. She does not seek any additional time for the false report or mischief convictions, but rather a minimal concurrent sentence. She also seeks a DNA order and a 20-year weapons prohibition under a s. 109.

Determination of the appropriate sentence in this case

[28] The mandatory minimum sentence of three years for s. 99 offences has been ruled unconstitutional by this Court; see R. v. Hussain, 2015 ONSC 7115, R. v. Harriot, 2017 ONSC 3393, and R. v. Sauvé, 2018 ONSC 7375. I adopt the reasoning in these cases and consider the mandatory minimum to be of no force and effect.

[29] Despite the absence of a mandatory minimum, a conviction for weapons trafficking almost always warrants a substantial period of imprisonment. As Justice D.E. Harris explained in R. v. Kawal, 2018 ONSC 7531, at para. 16, general deterrence and denunciation is a “central and vital consideration” in sentencing, because the danger handguns pose to the community cannot be overstated, and “[w]ord must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences”. Although Kawal involved weapons possession, this rationale applies equally if not more forcefully to weapons trafficking.

[30] In R. v. Stover, Hamilton J. did an extensive review of sentences imposed for weapons trafficking across Canada. The sentences ranged from three to eight years in prison. In five recent decisions by judges of the Ontario Superior Court cited by Ms. Martel – R. v. Hussain, R. v. Farah, 2016 ONSC 5000, R. v. Green, 2015 ONSC 6290, upheld at 2017 ONCA 244, R. v. Winchester, and R. v. Marakah, 2015 ONSC 1576 - my colleagues likewise imposed sentences of between three and nine years for weapons trafficking. Mr. Lewandowski relies on two recent Ontario decisions where courts have imposed conditional sentences for weapons trafficking.

Aggravating and mitigating factors

[31] Since sentencing must reflect Mr. Cass’ individual circumstances as well as the circumstances of his offences, I will first consider the aggravating and mitigating factors in this case, then consider whether a custodial sentence is necessary. If I determine that it is, I will consider the appropriate term.

[32] The first aggravating factor is that Mr. Cass transferred a total of ten handguns to Mr. Rata over a period of several months. This was not a single act but a series of transactions.

[33] A second aggravating factor is that the guns were transferred to an individual described by Mr. Cass as a “gangster”. At least three of the handguns have reappeared in the context of criminal investigations. One was found by the Regina police during a cocaine trafficking investigation. The second was seized by the Ontario Provincial Police during a traffic stop, along with another firearm and two kilos of cocaine. The third was recovered in Alberta during an RCMP drug investigation. This history shows that Mr. Cass’ trafficking had a broad impact, resulting in weapons being distributed across Canada. Of equal or greater concern is that seven of the ten handguns are still unaccounted for.

[34] A third aggravating factor is Mr. Cass’ conduct in misleading the police. After making the transfers to Mr. Rata, Mr. Cass lied to police about the theft of these weapons, causing them to investigate a crime that did not occur, and delaying their investigation into what actually occurred.

[35] There are two important mitigating factors. First, Mr. Cass has no criminal record. For almost thirty years, he supported himself, with some assistance from his family. His sole interaction with police prior to 2017 was in connection with his drug problem, and he was not charged.

[36] A second mitigating factor is what Mr. Cass has done to turn his life around since his arrest. He no longer uses drugs or alcohol. He has steady employment and a place to live, and a good relationship with family members and his neighbours. Based on the letters filed with the court, he may be a good candidate for rehabilitation.

[37] Mr. Lewandowski argues that there are two further mitigating factors: Mr. Cass’ co-operation with the police and the role of his drug addiction in his conduct in 2016.

[38] Although Mr. Cass did not plead guilty to the charges, he confessed that he had made a false report and co-operated with the police as of March 2017. I do not consider this to be a mitigating factor. During the first police interview with Mr. Cass in February 2017, the investigating officer repeatedly told him that certain aspects of his story were not believable and asked him to take a polygraph. Furthermore, although Mr. Cass may be given some credit for coming clean, he only had to do so because he made a false report in the first place.

[39] With respect to the role of the drug addiction, Mr. Lewandowski argues that Mr. Cass is less morally blameworthy, because he acquired guns for Mr. Rata in exchange for cocaine. According to his brother, Mr. Cass has been, during most of his adult life, in a “drug-addled state”. He was, to use his lawyer’s words, a dupe and a patsy. Now that Mr. Cass has stopped using drugs, the focus should be on his rehabilitation. This supports a non-custodial sentence.

[40] In making this argument, Mr. Lewandowski relies on cases involving drug trafficking such as R. v. Scott (1979), 1979 CanLII 3015 (QC CA), 48 C.C.C. (2d) 539 (Que.C.A.), R. v. Mete, [1980] O.J. No. 1438 (C.A.) and R. v. Andrews, [2005] O.J. No. 5708 (S.C.J.). These decisions show that judges generally take a less punitive approach in dealing with a drug addict who is trafficking for the purpose of supplying his habit as opposed to dealing with a non-addict who is trafficking purely out of motives of greed. As stated in Andrews, in cases involving people trafficking to support an addiction, “the profiteering for greed element is absent, a serious health issue emerges as context, and many question the efficacy of general deterrence in controlling the actions of one who is ill.”

[41] I agree with the defence that Mr. Cass’ addiction, and efforts he has made towards a recovery, should be taken into account in determining his sentence. I do not however accept that the reasoning in drug trafficking cases applies with the same force in weapons trafficking cases.

[42] First, I reject the general proposition that a person who commits a crime to gain access to drugs is less morally blameworthy than someone who commits crimes for money or some other reason. In drug trafficking cases like Scott and Andrews, the offender’s motivation is a focus because there is an obvious connection between their drug addiction and their criminal activity. The defendants in such cases have the motive, means and opportunity to distribute drugs only because of their addiction. If they stop taking drugs and leave the milieu where drugs function as a type of currency, there is no reason to think that they will offend again.

[43] There is no such obvious connection between addiction and the commission of other crimes. Addiction makes its victims desperate, but this is not a general excuse for them to break the law. Recovery can be taken into account in sentencing, but it does not automatically dictate a non-custodial sentence.

[44] Second, conditional sentences in drug trafficking cases are often (although not exclusively) imposed in cases involving the distribution of a modest quantity of drugs. In these circumstances a custodial sentence arguably serves no purpose. The person most hurt by the addicted person’s activities is the addict himself. There is no need for general deterrence or denunciation.

[45] The situation is different here. Mr. Cass did not sell or distribute a modest quantity of drugs. He supplied ten handguns to a person involved in criminal activity. The offence did not hinge on a single desperate act but involved many activities spread out over several months. Most of the guns Mr. Cass supplied to Mr. Rata are still unaccounted for. The location of those recovered suggests that they have been used for criminal activities. Mr. Cass is not the person most victimized by his poor decisions. His supply of weapons to Mr. Rata has exposed a significant number of people, and the community at large, to the threat of violent crime.

[46] Finally, I am not convinced, on the evidence in this case, that Mr. Cass’ transfer of weapons to Mr. Rata was driven solely by his drug addiction. Mr. Cass was, by his own account, receiving a modest amount of cocaine for each trip to the gun store with Mr. Rata. Mr. Cass also acknowledged at trial that Mr. Rata was not his only source of drugs. This is clearly the case because, from mid-November 2016 to late January 2017, he had no contact with Mr. Rata except by phone. Either Mr. Cass’ addiction was sufficiently under control that he could survive for three months without any cocaine, or he had another regular supplier. In short, the evidence is inconsistent with the theory that Mr. Cass was driven to buy guns for Mr. Rata as the only means to fuel his cocaine habit.

Is a custodial sentence necessary?

[47] Mr. Lewandowski relies on R. v. Sauvé and R. v. Roberts, 2019 ONCJ 22. In both cases, the defendant was first time offender. In both cases, he received a conditional sentence to be served in the community.

[48] The circumstances in R. v. Sauvé were very different than those here. Mr. Sauvé was only 19 years old at the time of the offence. He had transferred a single weapon. He was on house arrest for five years between the time he was charged and his trial, and throughout this period never breached conditions. He received very positive character references from various people in the local community.

[49] In R. v. Roberts, the accused was, like Mr. Cass, in his fifties when he was convicted of weapons trafficking. He also had been employed throughout his adult life. Unlike Mr. Cass, however, Mr. Roberts only sold a single firearm, and did not know that it might be used in criminal activity. He also expressed remorse and had extensive family and community support.

[50] In my view, the nature of the offences here distinguishes this case from R. v. Roberts. Mr. Cass used his licence to procure handguns for his drug dealer. He did not just transfer one weapon but ten. His offences were not the result of a single, ill-considered decision but a pattern of behavior over many months.

[51] Given the gravity and number of Mr. Cass’ offences, I conclude that a conditional sentence would not be appropriate. I recognize the efforts that Mr. Cass has made towards a recovery from his addiction. I also recognize that he has lived most of his life without ever getting into trouble with the law. Tragically, his conduct in 2016 in acting as a conduit for handguns for his drug dealer outweighs these considerations. I conclude that public confidence in the justice system would be shaken if Mr. Cass were not sentenced to time in jail.

What is an appropriate custodial sentence?

[52] The defence argues that the cases relied on by the Crown are not relevant, because they either pre-date the decisions striking the mandatory minimum or involve different fact scenarios. I agree with Mr. Lewandowski that R. v. Farah is not helpful, except to suggest that eight years would be too harsh a sentence. Both R. v. Green and R. v. Winchester involved a greater volume of firearms and trafficking for profit. They again suggest that an eight-year sentence would be excessive.

[53] Although Ms. Martel’s initial position was that Mr. Cass should receive eight years, she conceded during argument that an appropriate range would be five to six years. A first sentence of imprisonment should be as short as possible, and should not be tailored solely for the purpose of general deterrence; R. v. Hayman (1999) 1999 CanLII 3710 (ON CA), 135 C.C.C. (3d) 338 (Ont. C.A.) at p. 346.

[54] Mr. Cass, could you please stand.

[55] On the ten charges of unlawful transfer of firearms contrary to s. 99, I sentence you to a term of incarceration of four years. This sentence reflects this court’s condemnation of the terrible choices you made, repeatedly, to put your relationship with your drug dealer ahead of the safety and security of innocent victims of gun violence. It should serve as a deterrent to others who might be tempted to abuse the privilege of legal access to weapons.

[56] I would add that, were it not for your remorse, for the role that your addiction played in your conduct, and for the efforts you have made to rehabilitate yourself over the past two years, I would have sentenced you to five years in jail on these charges.

[57] On the ten charges of a false report under s. 107 and public mischief under s. 140, I sentence you to 90 days in jail, to be served concurrently with the sentence on the weapons trafficking charges.

[58] You are also required to undergo DNA testing. You are prohibited from any further possession of any firearms or ammunition for twenty years after your release. The victim surcharge is waived.

Justice Sally Gomery

Released: December 16, 2019

COURT FILE NO.: 17-A10392

DATE: December 16, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEVEN DOUGLAS CASS

REASONS FOR sentencing

Justice Sally Gomery

Released: December 16, 2019