Court File and Parties

Court File No.: 15659/21 Date: 2023-04-03 Ontario Superior Court of Justice

Between: His Majesty The King – and – Eric Wolfe Riedl, Defendant

Counsel: Andrew Midwood for the Crown Eric Riedl in person

Heard: February 6, 2023

Reasons for Sentence

C. Boswell J. (Orally)

[1] Mr. Riedl was charged, on May 1, 2020, with possession of cocaine for the purpose of trafficking, possession of a restricted firearm without being the holder of a valid license, and unauthorized possession of a loaded, restricted handgun. His trial on those charges was scheduled to commence on November 21, 2022.

[2] At a trial readiness court on November 16, 2022, Mr. Riedl signalled his intention to enter a guilty plea to two of the three counts before the court. In the result, he was arraigned and entered guilty pleas on counts 1 (possession of cocaine for the purpose of trafficking) and 3 (unauthorized possession of a loaded, restricted handgun).

[3] Following a plea inquiry, I accepted Mr. Reidl’s guilty pleas and remanded him to February 6, 2023 for sentencing submissions. I heard those submissions as anticipated and further remanded Mr. Riedl to today for judgment on sentence.

The Circumstances of the Offences

[4] The circumstances of the offences are fairly straightforward.

[5] Mr. Riedl was driving in a rental vehicle on Tauntan Road East in Oshawa on May 1, 2020. He was observed by an officer of the Durham Region Police Service to be travelling at a high rate of speed. The officer initiated a traffic stop.

[6] During the stop, the officer determined that Mr. Riedl’s driver’s license was suspended. He advised Mr. Riedl that the car would need to be towed. He instructed Mr. Riedl to gather his belongings. While Mr. Riedl did so, the officer observed him to be attempting to conceal a bag of white powder that appeared to be cocaine. Mr. Riedl was placed under arrest for possession of cocaine for the purpose of trafficking.

[7] Mr. Riedl was, on arrest, determined to be in possession of 29.1 grams of crack cocaine and 53.5 grams of powder cocaine.

[8] The rental vehicle was searched, incident to Mr. Riedl’s arrest. A satchel on the front, passenger seat was found to contain a .22 calibre Sig Sauer semi-automatic pistol. The serial number had been tampered with. There were 5 rounds of ammunition in the magazine and one in the chamber. Mr. Riedl did not have a license to possess the handgun.

The Circumstances of the Offender

[9] I have relatively little information about Mr. Riedl. He elected to represent himself at the time of the plea and during sentencing submissions. He did provide some modest information about his personal background.

[10] Mr. Reidl is 27 years old. He was 25 at the time of the offending.

[11] He grew up in Oshawa. His parents divorced when he was young and he was raised by his father, with whom he had a particularly close relationship.

[12] Mr. Riedl’s father became ill with cancer and died a month or two prior to the index offences, following a four-month battle with the illness. His father’s illness and death had a significant impact on Mr. Riedl. They ushered in a particularly dark period in his life.

[13] Mr. Riedl was released on a $7,500 surety bail on May 2, 2020. He was subject to a house arrest condition, with exceptions that allowed him to be out of his surety’s residence when in the company of his surety or for work purposes.

[14] On September 16, 2020 Mr. Riedl was arrested and charged with breach of his bail conditions. I am not aware of the specifics of the breach. Mr. Riedl remained in custody until October 7, 2020 when he was released on another $15,000 surety bail. The conditions of release were similar to the May 2, 2020 release order with the notable addition of a GPS monitoring condition, which required Mr. Riedl to wear an ankle bracelet to monitor his location.

[15] The breach charge was resolved on July 7, 2022. To that point, Mr. Riedl had spent a total of 24 days in pre-trial custody. He utilized 22 days of that time to reduce his sentence on the breach charge.

[16] Mr. Riedl’s surety with respect to his October 7, 2020 release order is Florence Luckhardt. He has lived with her and her husband, Timothy Luckhardt, since his release. One of the Luckhardts has been diagnosed with cancer during the time Mr. Riedl has lived with them. He has become a primary caregiver to that person and is worried about what will happen to the Luckhardts if a prison sentence is imposed on him.

[17] Mr. Riedl is trained as a millwright and is a member of the millwrighting union. Pending the resolution of the index charges, however, he has been working as a roofer. He works for a company called Wilson’s Roofing. The president of the company, Jeff Wilson, provided a letter of support for Mr. Riedl. He described Mr. Riedl as “dependable”, “honest”, “a solid leader and role model”. He has been a “truly positive addition” to the company.

[18] On weekends Mr. Riedl does his own roofing work. He employs two labourers in that capacity.

[19] Apart from the conviction in July 2022 for breach of recognizance, Mr. Riedl does not have a criminal record.

The Impact of the Offence

[20] There is no complainant in this case and, accordingly, no victim impact statement for the court to consider. The absence of a complainant does not mean, however, that these were victimless offences.

[21] Gun crime has been described by the Supreme Court as a “matter of grave and growing public concern”. See R. v. Nur, 2015 SCC 15 at para. 131.

[22] Guns are designed to maim and kill. They represent an immediate and serious threat to public safety and security. When a loaded handgun is carried in the community, “death and serious injury are literally at hand, only an impulse and trigger-pull away.” See R. v. Chin, 2009 ABCA 226 at para. 10.

[23] Similarly, illicit drugs like cocaine and crack cocaine represent a pressing danger to the community. They are addictive and destructive. They ruin lives.

[24] The combination of drugs and guns is particularly toxic. When offenders move about the community trafficking in illicit drugs and protecting themselves with loaded handguns, the community suffers. It becomes a more dangerous and less stable location in which to carry out the day-to-day activities of living.

The Principles and Purposes of Sentencing

[25] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and 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: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.

[26] The importance of these individual objectives, and how they interact, varies from case to case. There is little debate that the objectives of denunciation and deterrence are the most prominent given the nature of the offences here.

[27] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.

[28] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37, censure requires that any sentence imposed reflect the gravity of the offence, while restraint requires that a sentence not exceed what is appropriate in light of the moral blameworthiness of the offender. “In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”

[29] It is necessary that the court carefully consider the particular circumstances of the offence and of the offender and take account of any aggravating and mitigating circumstances. The court must also adhere to the requirement that like cases must be treated alike. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

The Legal Parameters

[30] The maximum sentence for possession of a loaded, prohibited firearm is ten years. Section 95(2)(i) of the Criminal Code continues to provide for a minimum sentence of three years for a first offence under this section. That section was, however, struck down by the Supreme Court as unconstitutional in R. v. Nur.

[31] Pursuant to s. 5(3)(a) of the Controlled Drugs and Substances Act, the maximum sentence for possession of cocaine for the purpose of trafficking is life imprisonment.

The Parties’ Positions

[32] The Crown seeks a sentence of four years in custody, together with a number of ancillary orders including a s. 109 weapons prohibition for 10 years, a DNA order on both counts and a s. 490 forfeiture order regarding the items seized from Mr. Riedl at the time of his arrest – namely the gun, ammunition and drugs.

[33] Crown counsel cited the following reference from R. v. Morris, 2021 ONCA 680, at para. 68, as framing his position:

…Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society…(Citations omitted).

[34] Where a loaded handgun is possessed for a “true crime” purpose, the Crown says, the starting point for a sentence is three years in the penitentiary. In the circumstances here, an appropriate sentence for the gun possession is in the range of 3.5 to 4.5 years. An appropriate sentence for the drug possession is in the range of 1 year. Taking into account the totality principle, the Crown asserts that a fit and just sentence is 4 years in the penitentiary.

[35] Mr. Riedl made limited submissions on his own behalf. He understands that there are consequences attached to his actions. He submitted that the offences were committed at a very low point in his life. Since his arrest he has, he says, done his best to stay away from that lifestyle. He has become, in his words, “a totally different person”.

[36] Mr. Riedl urges the court not to impose a prison sentence.

Discussion

[37] Mr. Riedl appeared before me on a number of occasions during the judicial pre-trial phase as well as the plea and sentencing. He was always on time and respectful of the court. He struck me as genuine in his intent to turn his life around and to be a better and more productive member of society.

[38] I believe he has been largely successful in his efforts towards rehabilitation and I accept that he is a different person now than he was when the offences were committed.

[39] Having said that, the offences he has been convicted of are extremely serious and demand the imposition of an exemplary sentence.

[40] The Supreme Court has recognized that s. 95(1) of the Criminal Code criminalizes a fairly wide range of conduct. Former Chief Justice McLachlin made the following observations at para. 82 of Nur, as above:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

[41] The reality here is that Mr. Riedl was engaged in truly criminal conduct. He had a significant amount of cocaine in his possession at the time of his arrest. It is axiomatic that drug trafficking is a dangerous business. To mitigate that danger, Mr. Riedl had in his possession a loaded firearm. It was a tool of his trade. His possession of that tool endangered the community.

[42] The Court of Appeal has held, time and again, that the toxic combination of drugs and guns in the community is one that requires a significant sentence to achieve the twin goals of denunciation and deterrence. This theme was reinforced recently in R. v. Omoragbon, 2020 ONCA 336, where the court said, at paras. 22-23:

22 Yet again, this is a case involving that toxic combination of drugs and a handgun. Cocaine and crack cocaine. And fentanyl. A loaded .38 calibre handgun. In a motor vehicle, aptly characterized as a mobile pharmacy. Each a pernicious and persisting threat to the safety, welfare and indeed the lives of members of our community: R. v. Wong, 2012 ONCA 767, at para. 11.

23 These offences command exemplary sentences. The predominant sentencing objectives are denunciation and deterrence. Substantial jail terms are required even for youthful first offenders: R. v. Mansingh, 2017 ONCA 68, at para. 24.

[43] In Omoragbon, the Court of Appeal upheld a seven-year global sentence imposed on the offender. The facts were somewhat more aggravating than here, but there are also a good many similarities.

[44] The police attempted to pull Mr. Omoragbon’s vehicle over for speeding. He fled, first in his vehicle and later on foot after he crashed. He was eventually apprehended after a police dog located him under a van. He was found to have dropped a loaded handgun while being pursued by the police. In his vehicle, the police located and seized a variety of drugs including cocaine and crack cocaine; MDEA; a fentanyl and heroin mix; and Xanax tablets.

[45] Mr. Omoragbon was 21 years old at the time of the offence. Unlike Mr. Riedl, he had a significant criminal record.

[46] In addition to the Omoragbon case, Crown counsel referred the court to a number of other precedents to support the reasonableness of a four-year global sentence in the circumstances present here. Those cases include, amongst others:

(a) R. v. Mark, 2018 ONSC 447 where the 22-year old first-offender was stopped in his car and arrested for drug trafficking. He was found to be in possession of 7 grams of crack cocaine and 11 ½ grams of marijuana. He was also in possession of a .40 calibre semi-automatic handgun with 9 rounds in the clip. The trial judge imposed a global sentence of four years which he broke down as 3 years for the firearm offence and 1 year, consecutive, for the drug offences;

(b) R. v. Mohiadin, 2021 ONCA 122 where the Court of Appeal reduced the sentence imposed by the trial judge on a 19-year-old first-offender who was convicted of possessing a loaded handgun in a car from 38 months to 36 months. The basis for the reduction was that the trial judge had exceeded the sentence sought by the Crown – which was 36 months – without giving notice to counsel or allowing them to address the appropriateness of that sentence;

(c) R. v. Marong, 2020 ONCA 598 where the Court of Appeal upheld a sentence of 48 months imprisonment imposed on an offender who drove a co-accused to the location of a drug transaction. The co-accused was, at the time, the subject of police surveillance. The offender was arrested driving away from the transaction. He was found to be in possession of a loaded handgun;

(d) R. v. Marshall, 2015 ONCA 692 where the Court of Appeal upheld a sentence of 3.5 years imprisonment for a youthful first offender who brought a loaded prohibited handgun to a drug deal;

(e) R. v. Thavakularatnam, 2018 ONSC 2380 where a 20-year old first offender was arrested at a shopping mall with a .22 calibre pistol in a satchel. The trial judge imposed a sentence of 40 months imprisonment; and,

(f) R. v. Ledinek, 2018 ONCA 1017 where the Court of Appeal upheld a 45-month sentence imposed on a 20-year old offender who was in possession of a loaded, semi-automatic handgun in the backseat of a vehicle travelling north on Highway 400. The offender had a record for offences which included assault, robbery and possession of a firearm, amongst others. The Court of Appeal observed that the sentence imposed was “well within the range of sentences imposed for similar offenders, guilty of similar offences.”

[47] In view of the authorities referred to by the Crown, there is no doubt that the sentence sought by the Crown is within the appropriate range.

[48] There are both aggravating and mitigating circumstances present here that, in my view, support the imposition of a three-year sentence for the firearm offence together with a one-year consecutive sentence for the drug offence, for a global sentence of 4 years.

[49] By way of mitigation, I have considered Mr. Riedl’s relative youth at the time the offences were committed, the fact that he is a first-offender and his guilty plea.

[50] While denunciation and deterrence are the principle sentencing objectives engaged on the facts of this case, Mr. Riedl’s rehabilitation remains of significant concern to me. As I noted, I find that he has made significant strides in turning his life around. He is young, hardworking and has a trade. His prospects for future success are, in my view, good.

[51] At the same time, there are a number of seriously aggravating circumstances here.

[52] Mr. Riedl was driving around with a loaded firearm in a vehicle. He had one bullet in the chamber and another five in a clip. The gun was ready to fire.

[53] Mr. Riedl was out and about in the community with the loaded firearm.

[54] The serial number of the firearm had been tampered with.

[55] The firearm was clearly used for protection in Mr. Riedl’s drug business. Mr. Riedl did not drop by his local Canadian Tire store and lawfully purchase the handgun and ammunition. He had to have sourced it out through criminal channels. And he bought it for use in a criminal commercial enterprise.

[56] The sentence of 3-years is, in my view, clearly warranted for the possession of the firearm. Indeed, a higher sentence may have been warranted but for the presence of the mitigating circumstances I have referred to.

[57] In addition to possessing the loaded handgun, Mr. Riedl was, of course, found in possession of cocaine and crack cocaine in amounts clearly consistent with trafficking in those substances. The appropriate range for that offence is, in my view, 6 months to 2 years less a day. See R. v. Woolcock, [2002] O.J. No. 4927.

[58] The combination of drugs and guns is a serious aggravating circumstance. The “toxic” nature of that combination has been the subject of repeated judicial comment. In my view, it warrants the imposition of an additional one-year term of imprisonment, to be served consecutive to the sentence imposed for the firearm offence. See R. v. Mark, as above, at para. 27 and the cases cited therein.

[59] In the result, I find that the global sentence of 4-years, proposed by the Crown, is entirely appropriate.

[60] Crown counsel agrees that Mr. Riedl is entitled to 3 days credit for time spent in custody on these charges prior to today. He has 2 days of pre-sentence custody that he has not otherwise utilized as a credit already. He is entitled to credit for that time at a ratio of 1.5 days for each day served, pursuant to R. v. Summers, 2014 SCC 26.

[61] In addition, Crown counsel agrees that Mr. Riedl is entitled to additional “credit” for the fact that he has been subject to reasonably stringent release conditions since his arrest in May 2020.

[62] In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.

[63] Though often referred to as a “Downes credit”, any reduction in a sentence imposed on account of stringent, pre-trial bail conditions, is not actually a credit, like the Summers credit for time spent in pre-trial detention. It is a mitigating factor. While it may reduce a sentence, as a mitigating factor it must not be permitted to reduce the sentence below was is fit and just in the circumstances.

[64] Earlier I set out the conditions that Mr. Riedl has been subject to while on release. They include house arrest, though he has been able to be out of the home of his surety for work purposes – something he has taken full advantage of. They have, for the past 2 ½ years or so, included GPS monitoring of Mr. Riedl’s movements through the use of an ankle bracelet.

[65] I recognize, of course, that “bail is not jail” as the old saying goes. Indeed, Mr. Riedl has enjoyed a fair bit of liberty while on bail. That said, his movements have been restricted and monitored and he is, in my view, entitled to some modest reduction in his sentence on account of his bail conditions. While also taking into account the 3-day Summers credit, I would reduce Mr. Riedl’s sentence to 45 months, which remains, in my view, a fit and just sentence in all the circumstances.

[66] In addition to the custodial term imposed, I make the following ancillary orders:

(a) A DNA order on both counts;

(b) A s. 109 weapons prohibition for 10 years; and,

(c) A s. 490 forfeiture order with respect to the items seized by the police on Mr. Riedl’s arrest, most notably the drugs, firearm and ammunition.

C. Boswell J. Released: April 3, 2023.