COURT FILE NO.: CR-17-74
DATE: 2019-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Schuck, for the Crown
- and -
EVAN WETELAINEN
D. Pierce, for the Defendant
Accused
HEARD: December 10, 2018 at Kenora, Ontario
Mr. Justice J.S. Fregeau
REASONS ON APPLICATION/REASONS FOR SENTENCE
INTRODUCTION
[1] On January 17, 2018, the accused entered pleas of guilty to Counts 1 – 11 on an indictment dated July 25, 2017. Facts were not read in, Gladue and Pre-Sentence Reports were ordered and the accused gave notice of his intention to bring a constitutional challenge to the mandatory minimum sentencing provisions contained in sections 99 and 100 of the Criminal Code, the offences charged in Counts 3 and 4 respectively.
[2] On December 10, 2018, Counts 1, 4 and 5 were stayed at the request of the Crown. Pursuant to facts read in by the Crown and admitted by the accused, the accused was convicted on Counts 2, 3, 6, 7, 8, 9, 10 and 11. These counts read as follows:
Count 2: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did possess a firearm, to wit .22 Cal Ruger Revolver knowing that he was not the holder of a licence under which he may possess it contrary to Section 92(1) of the Criminal Code of Canada.
Count 3: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did transfer a firearm, to wit .22 Cal Ruger revolver knowing that he was not authorized to do so contrary to Section 99 of the Criminal Code of Canada.
Count 6: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 109(2) of the Criminal Code of Canada made on the 8^th^ of May 2013 in the City of Thunder Bay contrary to Section 117.01(1) of the Criminal Code of Canada.
Count 7: on or about the 29^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did have in his possession tools, of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1)(a) of the Criminal Code of Canada.
Count 8: on or about the 28^th^ day of July, 2016 at the Township of Zealand in the said Region did break and enter a certain place to wit; a parking garage situated at 77 Railway Avenue with intent to commit an indictable offence contrary to Section 348(1)(a) of the Criminal Code of Canada.
Count 9: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did have in his possession ammunition while he was prohibited from doing so by reason of an order made pursuant to Section 109(2) of the Criminal Code of Canada made on the 9^th^ of May 2013 in Thunder Bay contrary to Section 117.01(1) of the Criminal Code of Canada.
Count 10: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did steal $175.00 cash the property of Stephen WRIGHT of a value not exceeding five thousand dollars, contrary to Section 334(b) of the Criminal Code of Canada.
Count 11: on or about the 28^th^ day of July in the year 2016 at the Township of Zealand in the said Region, did have in his possession property $175.00 cash, of a value not exceeding five thousand dollars, knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to Section 354(1)(a) of the Criminal Code of Canada.
[3] At issue on this sentencing hearing is the constitutional validity of s. 99(2) of the Criminal Code, which imposes a mandatory minimum sentence of three years’ incarceration for transferring a firearm contrary to s. 99(1) of the Code, for a first offence.
[4] The Crown submits that s. 99(2) of the Code remains constitutionally valid despite the fact that it has been found to violate s. 12 of the Charter and to be of no force or effect pursuant to s. 52 of the Charter by the Ontario Superior Court of Justice and other superior courts in Canada. The Crown submits that these cases were wrongly decided.
[5] The accused submits that while this Court is not bound by the decisions of courts of coordinate jurisdiction, they are persuasive and should be followed unless found to be “plainly wrong.” The accused submits that the Ontario Superior Court of Justice has held s. 99(2) of the Code to be in violation of s. 12 of the Charter on numerous occasions and that these cases were correctly decided and should be followed by this court.
[6] In the alternative, the accused applies to this court for an Order declaring that s. 99 of the Criminal Code violates s. 12 of the Charter and to be of no force or effect, pursuant to s. 52 of the Charter.
[7] The federal and provincial governments were both served with notice of this constitutional issue, as required. Both have chosen not to participate in this hearing, but for the participation and able arguments of the local Crown Attorney’s office.
The Constitutional Validity of s. 99 of the Criminal Code
[8] The constitutional validity of s. 99 of the Code was considered by the Ontario Court of Justice in R. v. Shobay, 2015 ONCJ 457. Mr. Shobay was a member of the Canadian Armed Forces who was convicted of selling his service hand gun and another handgun contrary to s. 99(1) of the Code. Pursuant to s. 99(2)(a) of the Code, he was subject to a mandatory minimum sentence of three years in custody.
[9] The court in Shobay, at para. 13-15, properly followed the analysis for challenging a mandatory minimum sentencing provision as being contrary to s. 12 of the Charter, as summarized by McLachlin J. in R. v. Nur 2015 SCC 15, [2015] SCJ No. 15, at para. 65:
I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.
[10] Applying this analysis to the facts of the case before it, the court in Shobay held that the three year mandatory minimum sentence was not a grossly disproportionate sentence for Mr. Shobay. The court then considered what it felt was a reasonably foreseeable hypothetical – the case of soldiers returning from combat, “most notably WWI, WWII and the Korean conflict” with souvenir handguns and, on their death, spouses and families transferring them to other family members, contrary to s. 99(1) of the Code and therefore invoking the mandatory minimum sentence set out in s. 99(2) of the Code.
[11] The court in Shobay found that the three year mandatory minimum sentence in s. 99 of the Code would, in this hypothetical, be grossly disproportionate to a fit and just sentence and therefore in violation of s. 12 of the Charter and of no force or effect pursuant to s. 52 of the Charter.
[12] The ruling of the Ontario Court of Justice in Shobay is not binding on this court, is of persuasive value only and does not apply generally to invalidate s. 99 of the Criminal Code; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power: R. v. Lloyd, 2016 SCC 13 (S.C.C.)
[13] Edwards J. of the Ontario Superior Court of Justice considered a challenge to the mandatory minimum sentence mandated by s. 99(2) of the Criminal Code in R. v. Hussain, 2015 ONSC 7115. Edwards J. ultimately imposed a three year custodial sentence on Mr. Hussain. However, the court held that s. 99(2) of the Criminal Code violated s. 12 of the Charter. It was declared to be of no force or effect pursuant to s. 52 of the Charter based on a reasonable hypothetical posed by the court.
[14] The hypothetical used in Hussain was that of two brothers, both experienced in the use of firearms, who go deer hunting together. The first brother knows that the second does not possess a Possession and Acquisition License as required by the Firearms Act to legally possess a firearm. Nevertheless, the first brother lends the second brother a rifle to hunt deer. While hunting, the two encounter an OPP officer who charges the first brother with illegally transferring a firearm contrary to s. 99(1) of the Criminal Code.
[15] The court in Hussain, at para. 102, held that the three year mandatory minimum sentence would be a grossly disproportionate sentence for the first brother in this hypothetical. Edwards J. found that his hypothetical demonstrates how s. 99 of the Code catches not only the “true criminal offender but also the offender who in essence has breached licensing requirements of the Firearms Act, and which also involves little moral culpability and little danger to the public.”
[16] Edwards J. referred to and endorsed the following passage from para. 22 of Shobay:
I further agree that a 3 year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing as set out in Section 718 of the Criminal Code.
[17] Hussain is a decision of the Ontario Superior Court of Justice, a court with inherent jurisdiction and therefore the authority to make a declaration under s. 52 of the Charter. I am not bound by the decision of Edwards J. in Hussain. It is of persuasive value only. However, in Hussain, a court of concurrent jurisdiction has declared s. 99 of the Code unconstitutional and of no force or effect pursuant to s. 52 of the Charter. In my opinion, I am bound to follow this decision unless I am persuaded that it was plainly wrong.
[18] In R. v. O’Neil Harriott, 2017 ONSC 3393 (S.C.J.), the court again considered the issue of the constitutional validity of s. 99 of the Code. Skarica J. agreed with Justice Edwards’ analysis of the constitutional validity of s. 99 of the Code in Hussain. At para. 38 of Harriot, Skarica stated:
Justice Edwards is an Ontario Superior Court Justice…the principles of stare decis suggest that I should follow a previous decision of the same level of court unless specific situations exist. Given that Justice Edwards provided a detailed analysis applying the law as I understand it, there is no good reason for me not to follow the Hussain decision.
[19] In R. v. Sauve, 2018 ONSC 7375 (S.C.J.), the Crown again argued that the mandatory minimum sentence mandated in s. 99(2) of the Code was constitutional. The court in Sauve noted that “the constitutionality of the mandatory minimum sentence under s. 99(2) of the Code has been considered by a number of courts and found to violate s. 12 of the Charter. A mandatory three year prison term for this offence has been found to be cruel and unusual punishment.” The court referenced Hussain, Harriot and Shobay, noting that Hussain and Harriot were decisions of courts of coordinate jurisdiction: paras. 16 and 17.
[20] The court in Sauve, at para. 17, adopted the following passage from R. v. Scarlett, 2013 ONSC 562, at para. 43:
The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them. In other words, a judgment should be followed unless the subsequent judge is satisfied that it is plainly wrong.
[21] In Suave, the court agreed with and adopted the analysis in Hussain, noted that it was followed in Harriot, and found that s. 99(2) of the Criminal Code violated s. 12 of the Charter and was of no force or effect: para. 18. Logically and reasonably the court saw “no utility in further expanding on the analysis in this case.”
[22] In R. v. De Vos, 2018 ONSC 6813, the Ontario Superior Court of Justice was yet again tasked with addressing the constitutional validity of s. 99 of the Code. The court noted that three previous decisions of this court had considered this issue and determined that the mandatory minimum sentence set out in s. 99 of the Code violated s. 12 of the Charter. At paras. 58 and 59, the court stated as follows:
There is no value in me repeating the thorough analysis of my colleague, Justice Edwards in R. v. Hussain. I agree with his analysis and his conclusion.
Of equal importance is the principle expressed by Justice Strathy in R. v. Scarlett, 2013 ONSC 562, at para. 43, that “decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them.”
[23] In De Vos, Corrick J. held that s. 99(2) of the Code violated s. 12 of the Charter and declared it to be of no force or effect pursuant to s. 52 of the Charter.
[24] At this point in time, four recent cases of the Ontario Superior Court of Justice – Hussain, Harriot, Sauve and De Vos - have found s. 99(2) of the Criminal Code to be in violation of s. 12 of the Charter and of no force or effect pursuant to s. 52 of the Charter. The Crown has appealed none of these decisions yet argue on this sentencing hearing that they were all wrongly decided and that I should disregard all of them.
[25] I will only address the Crown’s arguments in regard to Hussain.
[26] The Crown submits that the hypothetical posed by Edwards J. in Hussain was not a reasonable hypothetical capable of testing the constitutional compliance of s. 99(2) of the Code. The Crown submits that s. 33 of the Firearms Act authorizes a lawful gun owner to lend a firearm to another in two specific circumstances:
Where the lendor has reasonable grounds to believe that the borrower holds a license authorizing the borrower to possess the firearm; or
Where the borrower uses the firearm under the direct and immediate supervision of the lendor.
[27] The Crown submits that the first brother in the Hussain hypothetical – the lendor of the firearm – would be acquitted pursuant the second circumstance noted above. This obviously assumes that the two brothers are hunting together and that the first is in a position to exercise direct and immediate supervision over the second – facts not expressly addressed in the Hussain hypothetical.
[28] A small and reasonably foreseeable tweak to the Hussain hypothetical addresses this submission. As is the case more often than not, let us assume that the two brothers split up at some point while hunting deer such that the second brother is not always under the “direct and immediate supervision” of the first while he is in possession of the borrowed firearm. The first brother would therefore not be able to avail himself of the second exception set out in s. 33 of the Firearms Act and would be subject to the three year mandatory minimum sentence in s. 99(2) of the Code.
[29] Consistent with the reasoning of Edwards J. in Hussain, a three year sentence would be a grossly disproportionate sentence for the first brother in the amended hypothetical.
[30] I agree with the analysis in Hussain. I reject the submission that it was wrongly decided. I am not bound by that decision but I intend to follow it.
[31] I find that s. 99(2) of the Criminal Code violates s. 12 of the Charter and is of no force or effect. The mandatory minimum sentence set out therein does not apply. I will now address the appropriate fit and just sentence for the accused in the case before me.
Overview
The Facts
(a) Circumstances of the offences
[32] During the early morning hours of July 28, 2016, police were dispatched to the home of Stephen Wright, located in a rural area near Dryden, Ontario in response to the accused having advised Mr. Wright that someone had broken into his garage. Upon police arrival, the accused was in Mr. Wright’s home. Officers observed him to appear disoriented, with glossy eyes and slurred speech.
[33] The accused had advised Mr. Wright that he had chased off the intruders with a shotgun. As the accused was subject to a weapons prohibition at the time, police searched the accused and discovered a box of .22 calibre ammunition on his person.
[34] Further investigation revealed that the accused had stolen a hammer from Mr. Wright’s garage and $175 from his wallet. While being arrested for these offences, the accused expressed remorse for taking the property of his neighbor, Mr. Wright. The accused was subsequently released.
[35] The following day, Ronald Legault attended the Dryden OPP detachment and turned a .22 calibre handgun and three knives over to police. Mr. Legault advised the police that the accused had sold him the handgun the previous evening. Prior to Mr. Legault contacting the police, he had spoken to the accused’s father about the accused selling him the handgun, inquiring as to what he should do. The accused’s father told Mr. Legault to go to the police.
[36] The accused was arrested in relation to his unauthorized transfer of the handgun. The accused advised police that he had taken the handgun from “Steve”. The accused further advised police where to find other property that he had taken from Mr. Wright.
[37] In due course, the accused provided a statement to the police fully acknowledging his involvement in the offences before the court.
(b) Circumstances of the offender
[38] The accused is a 38 year old member of the Wauzhushk Onigum First Nation near Kenora, Ontario. He is one of seven children of Madeline Skead. His father is unknown.
[39] At nine days of age, the accused and his twin brother were adopted by Elaine Favell of Wauzhushk Onigum First Nation and Henry Wetelainen of Wabigoon First Nation. Four generations of Ms. Favell’s family attended residential school, including her. Mr. Wetelainen’s family did not attend residential school.
[40] The accused grew up between Wabigoon and Sault Ste. Marie. He described the family home in Sault Ste. Marie as “ideal.” The accused and his brother suffered significant racism from teachers and students while attending school in Sault Ste. Marie. In response to the treatment directed toward him, the accused and his brother pretended to be of Italian descent and became racist toward Indigenous people.
[41] The accused suffered physical and sexual abuse from a boyfriend of his mother. This resulted in the accused suffering severe anxiety over the years.
[42] The accused experienced general anxiety and guilt about his ancestry throughout his teenage years which led to the consumption of alcohol. He dropped out of school while in Grade 11. As an adult, he has unsuccessfully attempted to obtain a General Equivalency Diploma.
[43] The accused developed an alcohol dependency issue in his early 20’s, which in turn led to his involvement with the criminal justice system and the breakdown of personal relationships. The accused was successful in resolving his alcohol abuse issues in his mid – 20’s but then developed an addiction to opiate drugs, beginning with Percocet and followed by valium and methadone.
[44] The accused moved to Thunder Bay in 2005. He led an unstable lifestyle which included heavy drug abuse and gang affiliation. In 2011, with the assistance of his mother, the accused attempted to overcome his addictions and was partially successful for a period of time. However, he had relapsed into drug abuse prior to the 2016 offences.
[45] At the time of the offences before the court, the accused was addicted to morphine and Clonazepam, the latter being lawfully prescribed but used by the accused in non-prescribed amounts.
[46] Since his arrest in 2016, the accused has made significant progress in resolving his addiction issues, including a self-referral for general and addictions counselling. His involvement and motivation in a community based treatment and counselling program, designed as a “readiness program” for the purpose of attending residential treatment, was described as “very positive.”
[47] The accused attended and successfully completed a residential treatment program in the spring of 2017. He was described as having made excellent efforts in residential treatment. The accused reported to the author of the Pre-Sentence Report that he has been successful in abstaining from the consumption of non-prescription drugs. This statement was confirmed by collateral sources.
[48] The accused has been with his current partner since 2015 and is engaged to be married. He and his partner have two children together. The accused’s spouse describes him as a good parent. She is of the opinion that the accused is committed to avoiding future substance abuse. They intend to reside in the Thunder Bay area and raise their family when the accused’s current legal issues are resolved.
[49] The accused reports that he stole his neighbor’s property in an attempt to impress his wife by appearing to have money. The handgun was sold to a friend of the accused’s family to obtain money for a birthday present for the accused’s spouse’s son. The accused candidly acknowledged that any surplus money would have been used to purchase drugs.
Legal Parameters
[50] The Criminal Code establishes the following sentencing parameters for the offences which the accused has been convicted of:
Count 2 – s. 92(1) – possession of a .22 calibre revolver without a license – no minimum penalty and a maximum penalty of 10 years imprisonment;
Count 3 – s. 99 – knowingly transfer a .22 calibre revolver without authorization – pursuant to my finding that the minimum penalty set out in s. 99(2) is of no force or effect there is no minimum penalty. The maximum penalty is 10 years imprisonment;
Count 6 – s. 117.01(1) - possession of a firearm while prohibited pursuant to an order made under s. 109(2) of the Code – no minimum penalty and a maximum penalty of 10 years imprisonment;
Count 7 – s. 354(1)(a) - possess stolen property with a value of less than $5,000 – no minimum penalty and a maximum penalty of 2 years imprisonment;
Count 8 – s. 348(1)(a) – break and enter a garage with intent to commit an indictable offence – no minimum penalty and a maximum penalty of 10 years imprisonment;
Count 9 – s. 117.01(1) - possession of ammunition while prohibited pursuant to an order made under s. 109(2) of the Code - no minimum penalty and a maximum penalty of 10 years imprisonment;
Count 10 – s. 334(b) – theft of $175 – no minimum penalty and a maximum penalty of 2 years imprisonment; and
Count 11 – s. 354(10(a) – possess stolen property with a value of less than $5,000 ($175) – no minimum penalty and a maximum penalty of 2 years imprisonment.
The Position of the Crown
[51] The Crown acknowledges that the Pre-Sentence and Gladue Reports are generally very positive and that the accused has expressed meaningful and genuine remorse for his conduct.
[52] The Crown submits, however, that the weapon offences before the court are extremely serious and that the accused has prior convictions for possession of a weapon for a purpose dangerous to the public peace and for carrying a concealed weapon. The Crown also submits that the offences before the court include possession of a weapon and ammunition contrary to the prohibition order that resulted from these previous convictions.
[53] The Crown submits that the primary sentencing objectives for the offences before the court are denunciation and deterrence. The Crown suggests that the applicable range of sentence established by the case law for offences of this nature is 2 to 8 years imprisonment and that the appropriate global sentence for the accused, taking into account all mitigating factors, is 3 to 4 years imprisonment.
[54] The Crown submits that the court consider the following cases in determining the appropriate sentence for this offender and these offences:
[55] R. v. Villella, 2006 CanLII 39324 (ON SC), [2006] O.J. No. 4690 – the accused, a 27 year old first offender, was convicted of, among other things, conspiracy to import firearms, importing prohibited firearms and possession of firearms for the purpose of trafficking. The accused was found to have played a limited, non-leadership role in a conspiracy to export narcotics and import firearms to be sold to a criminal organization in Scarborough. A co-conspirator was arrested attempting to import 23 handguns into Canada at Windsor.
[56] The court held that the sentence imposed must emphasize the principles of specific and general deterrence and denounce “the very serious nature of crimes relating to the importation and possession of firearms.”
[57] The accused received a global sentence of two years imprisonment.
[58] R. v. Howell, [2007] O.J. No. 4585 – the accused, a 22 year old first offender with a common law partner and two year old child, was found guilty of nine unspecified weapons offences including the unlawful possession and trafficking of firearms.
[59] The offences occurred in downtown Toronto. Upon arrest, the accused was in possession of three .22 calibre rifles and ammunition. A search of the accused’s residence led to the seizure of a further three .22 calibre rifles, a 12 gauge shotgun, a .32 calibre handgun and assorted ammunition.
[60] The accused acknowledged having purchased the firearms to resell at a profit. The court found that the accused knew that he was selling firearms to persons who intended to use them in committing crimes.
[61] The court stated that sentences for offences of this nature must emphasize specific and general deterrence and denunciation. The court noted that the accused was a youthful first offender with good prospects for rehabilitation.
[62] The court imposed a global sentence of four years imprisonment with a two for one credit for pretrial custody and four months credit for 15 months of house arrest.
[63] R. v. Ivanic, [2011] BCCA 158 – this was an appeal by the accused from a “global” sentence of eight years less credit for pretrial custody, for 11 convictions, including discharging a firearm with intent to wound, three counts of illegally transferring a firearm and four counts of illegal possession of firearms.
[64] In the course of a drug purchase that went bad, the accused was ambushed and shot one of the drug dealers. During an undercover operation in the midst of the police investigation of the shooting, the accused sold restricted handguns and a restricted rifle to undercover officers.
[65] The accused was 22 years old with a prior drug trafficking conviction. The offences occurred while he was bound by a firearms prohibition. It was acknowledged that the accused sold the guns to the undercover officers for profit.
[66] The BCCA noted that offences involving firearms and the sale of firearms “are serious offences and sentences need to reflect society’s condemnation of such offences.”
[67] The court held that sentence imposed by the sentencing judge was at the low end of the appropriate range for these offences.
[68] R. v. Hussain, [2015] ONSC 7115 – the accused was convicted of trafficking a firearm, possession of a firearm knowing its possession is unauthorized, possession of a firearm contrary to court order and breach of recognizance.
[69] The accused was 24 years old with a prior record that did not include “any significant use of violence” or the use of firearms. The court noted that the offence of trafficking in a firearm was not accompanied by any other criminal activity.
[70] The court held that the offence of trafficking in a firearm, whether it is a restricted weapon or not, will generally attract “a significant penitentiary sentence” in order to address general deterrence.
[71] The court imposed a sentence of three years imprisonment for the firearm trafficking offence, one year imprisonment concurrent for unauthorized possession of a firearm, 18 months’ imprisonment for possession of a firearm contrary to court order, and 18 months’ imprisonment concurrent for breach of recognizance.
[72] R. v. Waldron, [2015] ONCA 586 – the accused appealed a five year sentence for trafficking in six firearms. The ONCA described the offences as “very serious”, found that the accused knew the guns would be used for criminal purposes and that the accused’s motive was “entirely profit driven.”
[73] The constitutionality of the three year mandatory sentence was not challenged by the accused or commented on by the court, but for the court stating that “a sentence two years above the mandatory minimum was entirely fit” given the aggravating considerations noted.
[74] R. v. Boesel, [2017] BCSC 970 – the accused pled guilty to one count of trafficking a 12 gauge shotgun. The accused had come upon a shotgun “stashed” by others and intended to sell it to his drug dealer for cash and drugs.
[75] The accused was 47 years of age and had had a drug dependency issue for about 15 years. The court found that he had a criminal record typical of a person with a drug addiction. The record included 17 previous convictions, primarily for theft and break and enters. The court noted that the accused intended on selling the shotgun to a drug dealer with no regard as to how it would be used and in whose hands it would be conveyed.
[76] The court found that a fit sentence for the accused for this offence was three years in jail.
[77] R. v. Marsh, [2017] N.J. No. 333 – the 34 year old accused pleaded guilty to and was convicted of unauthorized sale of a restricted firearm, possession of a restricted firearm, unsafe storage/handling of a restricted firearm and two counts of breach of undertaking. All offences related to the sale of a .357 Magnum revolver to an undercover police officer posing as a suspected criminal such that the court found the accused would have known the gun was to have been used for criminal purposes.
[78] The court applied the mandatory minimum sentence of three years for the firearm trafficking offence. Concurrent sentences were imposed for the other weapons offences.
[79] R. v. Stover, [2018] B.C.J. No. 2947 – the 42 year old accused with no prior criminal record pled guilty to four counts of trafficking semi-automatic handguns, three of which were restricted weapons. The court was advised that the accused was acting as a “straw purchaser”, a legal gun purchaser who purchases firearms on behalf of others who cannot do so legally. The accused had purchased, and apparently transferred, 12 handguns during a four month period preceding sentencing.
[80] The accused challenged the constitutional validity of s. 99(2) of the Code. The court deferred that challenge pending its determination of a fit sentence for the accused.
[81] The court noted that the trafficking of firearms, particularly semi-automatic handguns, is one of the “most serious crimes one can commit in Canada.” The court found that the accused had “introduced 16 efficiently lethal weapons into society for the benefit of criminals who could not obtain them legally.”
[82] Following an extensive review of sentencing decisions for firearms trafficking, the court concluded that the established range of sentence for this offence to be three to eight years imprisonment and that sentences below three years were “outliers.”
[83] The court sentenced the accused to three and one-half years imprisonment on each of the four counts to be served concurrently.
The Position of the Accused
[84] The accused submits that the particular circumstances of this offender and these offences must be considered in determining a fit and just sentence in this case.
[85] The accused submits that he served 12 days of pre-sentence custody and that he should receive a credit of 20 days for this toward any sentence imposed. The accused further submits that he has been subject to strict bail conditions, including house arrest, for two and one-half years without a breach. The accused acknowledges that he has been allowed to be outside his residence while on bail if accompanied by his father or an uncle.
[86] The accused submits that these offences were entirely unsophisticated in that, while he was impaired by drugs, he broke into his neighbour’s garage and house and took what he found that was of value. The accused described this as a “crime of opportunity.” The accused further submits that he provided a complete statement to police immediately upon arrest and that he is genuinely remorseful for his conduct.
[87] The accused submits that this was a relatively minor break and enter and that all stolen property has been recovered. In regard to the transfer of the firearm, the accused submits that this was not a true firearm trafficking offence. The accused submits that the .22 calibre handgun was offered to a family friend only, and because he needed money for a birthday gift for his child and for drugs, while in the throes of addiction.
[88] The accused concedes that he is not a youthful first offender. He submits, however, that his record is not extensive and that he has not previously been sentenced to custody.
[89] The accused submits his Pre-Sentence Report and Gladue Reports are both positive. It is submitted that, while the accused had a drug dependency problem at the time of arrest and was in fact high at the time of the offence, he has been drug free since that time, has a loving and supportive partner and has been a good parent to his children.
[90] The accused submits that the appropriate sentence for the firearm trafficking offence and related offences (counts 2, 3, 6, and 9) is as follows:
Count 3 – s. 99 – a six month conditional sentence order;
Count 2 – s. 92(1) – a two month conditional sentence order, consecutive to count 3;
Counts 6 and 9 – s. 117.01(1) x 2 – a one month conditional sentence order on each count, concurrent to each other and consecutive to counts 2 and 3.
[91] The Accused suggests the following disposition as appropriate for the remaining convictions:
Count 7 – s. 354(1)(a) – one day time served;
Count 8 – s. 348(1)(a) – one day time served concurrent to count 7;
Counts 10 and 11 – s. 334(b) and s. 354(1)(a) – one day time served, concurrent to each other and concurrent to counts 7 and 8.
[92] This would result in a custodial sentence of nine months, to be served in the community. The accused has suggested numerous strict conditions attached to the conditional sentence order, including house arrest and drug and alcohol abstention and counselling. The accused submits that supervision, drug and alcohol abstention and counselling continue after the completion of the conditional sentence order pursuant to a probation order.
[93] The accused submits that the court should consider the following cases in determining the appropriate sentence in this case.
[94] R. v. Friesen, 2015 ABQB 717 – the 48 year old accused with no prior record pled guilty to illegally transferring non-restricted firearms (two .22 calibre rifles) from his general store in rural northern Alberta. One was used by the purchaser to commit suicide. The purchaser was known to the accused and the court found that there was no evidence that the firearms were ever going to be used for criminal activity.
[95] The court found that the accused’s moral blameworthiness to be very low – essentially limited to failing to acquire the required license to sell firearms from his store. The court also noted the early guilty plea of the accused as a sign of remorse.
[96] The court sentenced the accused to six months imprisonment to be served in the community.
[97] R. v. Harriot, 2017 ONSC 3393 – the accused, a 34 year old Jamaican immigrant with a very minor record, was convicted of one count of trafficking in cocaine and one count of trafficking a firearm. Both consisted only of offers to traffic, with no money, cocaine or firearms being transferred, with the accused having no access to a handgun, no means to obtain one and with no intent ever to do so. The accused was found to have been under control of a violent drug trafficker.
[98] The court found that the range of sentence for this offender in the circumstances of this offence to be three to six months imprisonment.
[99] R. v. Sauve, 2018 ONSC 7375 – the accused, a 19 year old first offender, was convicted of careless storage of a firearm and one count of firearms trafficking of a prohibited weapon. The accused had travelled with and assisted a friend in obtaining the firearm, subsequent to which the accused illegally transferred the firearm to the friend.
[100] The court described the accused as a youthful first offender such that restraint was to be exercised in sentencing, with the emphasis on individual deterrence and rehabilitation. The court imposed a nine month conditional sentence.
Mitigating and Aggravating Factors
[101] I consider the following to be mitigating and aggravating factors to be taken into consideration in arriving at a fit and just sentence for this offender and these offences.
Mitigating Factors:
The accused provide an incriminating statement to the investigating officers essentially upon arrest;
The accused entered guilty pleas at an early stage knowing that he was possibly subject to a three year mandatory minimum sentence;
The accused is genuinely remorseful for his criminal actions;
The offences were committed while the accused was under the influence of drugs and during a relapse in attempts to overcome an addiction;
The motivation for the offences was to obtain whatever property the accused could to sell for money to buy his son a birthday present and for more drugs;
The accused has a supportive partner and a young family. He is described as a good parent by his spouse;
The accused has taken sincere and positive steps to address his addiction in the 28 months since arrest;
The offences were entirely unsophisticated and could be accurately described as clumsy;
The firearm was sold to a family friend such that it cannot be inferred that the accused had any reason to believe it would be used for criminal purposes;
The accused has abided by strict bail conditions without breach for 28 months; and
Both the Pre-Sentence Report and Gladue Report are positive.
Aggravating Factors
[102] I consider the following to be aggravating factors on sentencing:
The accused has a previous criminal record which includes convictions for possession of a weapon for a purpose dangerous to the public peace and carrying a concealed weapon;
The offences were committed while the accused was subject to a weapons prohibition; and
The offences involved a handgun, a restricted firearm.
Principles of Sentencing
[103] The purpose, principles and objectives of sentencing are set out in s. 718 of the Criminal Code:
- 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 acknowledgment of the harm done to victims and to the community.
[104] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Full consideration must be given to the degree of moral blameworthiness of the offender.
[105] A court that imposes a sentence is also required to take into consideration the principles set out in s. 718.2 of the Criminal Code, the following of which I find applicable in this case:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
Discussion
[106] While I do not reject the Crown’s submission as to the appropriate range of sentence in the case of a “true” firearms trafficking offence as envisaged by s. 99 of the Criminal Code, I am of the opinion that the circumstances of the offences and of the accused before the court make that range of sentence unduly harsh in the circumstances.
[107] I accept the submission of the accused that this was a clumsy, unsophisticated break and enter in which the accused, while under the influence of drugs at the time and in general state of drug addiction, stole whatever property he came across, one item of which happened to be a .22 calibre revolver. He then sold the .22 calibre revolver to a family friend to obtain money for a birthday gift for his son with the balance to be used to purchase drugs.
[108] This is obviously serious criminal conduct. However, this conduct has to be examined in the context of all mitigating and aggravating factors to arrive at an appropriate, fit and just sentence for this accused. In considering that context, I find that the moral blameworthiness of the accused is at the very low end of the scale.
[109] As noted at pg. 12 of the Pre-Sentence Report, the accused’s past and present criminal conduct “have the common thread of his persistent and serious substance abuse and addiction. His behaviour leading to the instant offences was rather foolish more so than an expression of serious criminal intent. It was illustrative of the extent to which his substance abuse impaired his discretion and judgement.”
[110] The accused is an Indigenous man who was raised by a loving and supportive family. However, as noted at pg. 26 of the Gladue Report, this did not shield him from the racism and abuse that he suffered as one of the few Indigenous children at the schools that he attended as a child. The accused was sexually abused over a seven month period by a partner of his mother’s when he was nine years old. This severely impacted his mental health such that the accused has struggled with anxiety and a panic disorder throughout his entire life. This in turn led to drug use, addiction and, inevitably, criminal activity.
[111] The Gladue Report and the Pre-Sentence Report both confirm that the accused has participated in addictions treatment in a serious and committed manner over the past 28 months and that he has been successful in maintaining sobriety during that time. This included the successful completion of a residential treatment program.
[112] Both reports urge this court to refrain from incarcerating the accused, suggesting that he has made significant strides toward maintaining a substance abuse free lifestyle. Both reports indicate that the accused is a good candidate for community supervision and both make thoughtful recommendations for conditions to be included in any period of community supervision.
[113] In my opinion, the circumstances of this accused and of these offences puts this case squarely within the terms of s. 718.2(e) of the Criminal Code:
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[114] I have found that s. 99 of the Code is in violation of s. 12 of the Charter and of no force or effect pursuant to s. 52 of the Charter. I therefore may, pursuant to s. 742.1 of the Criminal Code, impose a conditional sentence of imprisonment for the firearm offences if the sentence imposed is less than two years and all other pre-conditions therein are met.
[115] Taking into account all of the above, I find that a fit and just sentence for this accused for these offences, is as follows:
Count 3 – s. 99 of the Code – six months imprisonment to be served in the community, subject to conditions set out below;
Count 2 – s. 92(1) of the Code – two months imprisonment, consecutive to Count 3, to be served in the community subject to conditions set out below;
Counts 6 and 9 – s. 117.01(1) of the Code – one month imprisonment on each count, concurrent to each other and consecutive to Counts 2 and 3, to be served in the community subject to conditions set out below;
Count 7 – s. 354(1)(a) of the Code – one day imprisonment, satisfied by time served;
Count 8 – s. 348(1)(a) of the Code – one day imprisonment, concurrent to Count 7, satisfied by time served;
Counts 10 and 11 – s. 334(b) and s. 354(1)(a) of the Code – one day imprisonment on each count, concurrent to each other and concurrent to Counts 7 and 8, satisfied by time served.
[116] The Conditional Sentence Order shall include all compulsory statutory conditions set out in s. 742.3(1) of the Code and the following additional conditions:
The accused shall abstain from the possession or consumption of alcohol and all CDSA drugs, but for those validly prescribed for the accused in his name;
During the term of his conditional sentence, the accused shall remain in his residence at all times except while employed or travelling to or from a place of employment, with the exception of medical emergencies involving the accused or his immediate family or with the written permission of his supervisor, which shall be carried on his person whenever he is outside his residence;
The accused shall attend for all assessments and counselling for substance abuse as recommended by his supervisor, including residential treatment.
[117] Following the completion of the conditional sentence of imprisonment, the accused shall be subject to a probation order for 12 months. The probation order shall include all compulsory statutory terms. While on probation, the accused shall also attend for all substance abuse counselling as recommended by his probation officer.
[118] The accused shall provide such sample of his DNA as required for forensic analysis.
[119] Pursuant to s. 109 of the Code, the accused is subject to a lifetime weapons prohibition.
The Hon. Mr. Justice J.S. Fregeau
Released: February 25, 2019
COURT FILE NO.: CR-17-074
DATE: 2019-02-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
EVAN WETELAINEN
REASONS ON APPLICATION/REASONS FOR SENTENCE
Fregeau J.
Released: February 25, 2019
/sf