R. v. Lang, 2019 ONCJ 396

CITATION: R. v. Lang , 2019 ONCJ 396 COURT FILE No.: 0611-998-17-1195 DATE: June 11, 2019 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — christopher lang Before Mr. Justice Richard H.K. Schwarzl at Orangeville Heard on May 28, 2019 Reasons released on June 11, 2019 Mr. Robert Fetterly, Q.C. ..................................................................................... for the Crown Ms.

Carrie Bellan............................................................................................... for the Accused SCHWARZL, J.: REASONS FOR SENTENCE 1.0: INTRODUCTION [ 1 .] On January 8 and 9, 2019 a trial was held before me wherein Mr. Lang (“the Offender”) was charged with theft and unlicensed possession of a handgun. On February 25, 2019, I found him guilty of both offences.

A pre-sentence report was ordered and submissions as to sentence were made on May 28, 2019. [ 2 .] What follows are my reasons for sentence. 2.0: POSITIONS OF THE PARTIES 2.1: Crown [ 3 .] The Crown submits that denunciation and deterrence are paramount in sentencing crimes involving guns. Making lethal weapons available to criminals is a scourge on society. The Crown submits that the Offender is responsible for the gun winding up in the hands of criminals in Peel Region.

They also submit the need for a denunciatory and deterrent sentence together with the Offender’s criminal record make a Conditional Sentence inappropriate. They urge me to impose a jail sentence of around 18 months. 2.2: Defence [ 4 .] The Defence submits that a Conditional Sentence of 6 to 7 months is appropriate. They stress personal circumstances such as being on restrictive bail for a long time, strong family support, and employment prospects.

In addition, the defence submits that since the gun was unloaded and that there were no gang affiliations, the absence of such aggravating factors supports the making of a Conditional Sentence order. 3.0: CIRCUMSTANCES OF THE OFFENCES [ 5 .] During a night of drinking and taking drugs, the Offender, his under-aged girlfriend, and his sister ran out of alcohol. After searching for someone to supply them with more liquor they received an offer from the victim, Aaron Misumi. At his invitation the

group took a taxi to Misumi’s house where the four then drank and socialized in the garage. [ 6 .] At the time, Misumi was the licensed owner of a.40 calibre Glock pistol which is a restricted firearm costing $1,100. Misumi showed off his unloaded Glock in a futile attempt to impress the two young women and in so doing, Misumi permitted the Offender to handle the gun. At the end of the night’s partying the Offender stole the gun. [ 7 .] The next day, the Offender went online to research prices for.40 Glock handguns. The Offender ignored pleas from Misumi to return his gun with no questions asked.

Nearly a year later in August 2018 the stolen handgun was recovered by police in Peel Region from criminals without known connection to the Offender. It is clear that the Offender trafficked the stolen weapon. 4.0: MITIGATING AND AGGRAVATING FACTORS 4.1: Mitigating Factors [ 8 .] There are a number of mitigating factors present in this case. They include:

a) the Offender is relatively youthful, being presently 23 years old;

b) the Offender is a skilled and industrious worker with employment prospects. But for his bail restrictions, he may be employed full time for good money;

c) the multiple character letters show he has strong community and family support;

d) he is no longer abusing drugs and alcohol;

e) he is primary caregiver to his sick grandmother, made possible by his restrictive bail conditions;

f) the offence was a crime of opportunity and the product of impulse, not planning;

g) there is 13 days pre-trial custody;

h) the weapon was not loaded;

i) there is no evidence the Offender is connected to a gang;

j) the weapon was not used by the Offender to commit crimes; and

k) he was on strict bail conditions including house arrest, not contacting his sister and girlfriend both of whom were witnesses; and not being allowed to access the internet. 4.2: Aggravating Factors [ 9 .] There are also a number of aggravating features to this case including:

a) the Offender stole a semi-automatic handgun, the primary purpose of which is to kill people;

b) the Offender clearly sought to profit from his crime by looking up prices for this weapon;

c) the Offender clearly trafficked the gun as it wound up in the hands of criminals in Peel Region, where gun crimes are all too frequent;

d) the Offender has a significant criminal record. He has been sentenced nine times before today and has 22 convictions both as a youth and as an adult. Amongst his convictions are five property offences and eleven breaches of court orders;

e) while on bail for these charges, the Offender incurred convictions for a theft of property and five breaches of recognizance;

f) at the time of these offences, the Offender was supplying and sharing alcohol and drugs with his under-aged girlfriend;

g) in committing the theft, the Offender exploited and abused the hospitality and trust of the naïve victim;

h) there was significant negative impact on the victim;

i) the Offender was high and drunk when he committed these crimes; and

j) the Offender’s response to past court-ordered supervision has been poor and he is not following through with straight forward tasks required under his present supervision.

5.0: ANALYSIS AND SENTENCE [ 10 .] The strict bail in this case in not a factor in reducing what would otherwise be an appropriate sentence. The significant restrictions on his personal liberty did not trouble the Offender who breached his recognizance five times and committed another theft while at large. Furthermore, the bail conditions had the unexpectedly positive impact of bringing him closer to his family, especially to his sick grandmother for whom he gives close care and comfort.

There was very limited evidence as to the negative impact of the strict bail on this Offender. [ 11 .] I find that a Conditional Sentence is not appropriate in the circumstances of these offences and of this Offender. He did not plead guilty, he sought to profit from his crimes of opportunity, he ignored the victim’s pleas to return the weapon, he has violated his bail on more than one occasion, he has a significant criminal record for property and breach offences both as a youth and as an adult, and has done poorly on court supervision.

His support in the community is restricted to his family which, while important, is incomplete and tenuous as they do not appear to see or admit his felonious character. [ 12 .] In my view, the circumstances of the offences and of the Offender are such that a Conditional Sentence would not meet the overarching sentencing principles of denunciation and deterrence, both general and specific. Also, given the Offender’s criminal history and his poor attitude while on court supervision I find that serving his sentence in the community would endanger public safety, even if he subject to electronic supervision. Mr.

Lang has shown a long-term lack of regard for law and order even while on bail. [ 13 .] I agree with the prosecution that sentences for crimes involving guns must emphasize deterrence and denunciation. Notwithstanding that the gun was unloaded when stolen, the Offender clearly trafficked the gun either knowing, or not caring, that it would probably be used by other criminals.

In this regard, the Offender contributed to the unacceptably high risk of danger posed to society by the illegal obtaining and distribution of firearms. [ 14 .] Taking everything into account, including his pre-sentence custody of 13 days credited as 21 days, the appropriate sentence is as follows. [ 15 .] For stealing the handgun: 15 months jail on top of credited pretrial custody. Jail will be followed by probation for two years.

There will be a restitution order for $1100. [ 16 .] For unlawfully possessing a firearm: 8 months concurrent and 2 years’ probation concurrent with an in-custody secondary DNA Order plus a 10 year firearms prohibition pursuant to

section 110 , Criminal Code of Canada . _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice