R. v. Weir, 2022 ONCJ 399

CITATION: R. v. Weir, 2022 ONCJ 399 COURT FILE No.: 0611-998-19-986 DATE: September 6, 2022 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — jonathan weir Heard Before Mr. Justice Richard H.K.

Schwarzl at Orangeville on October 20, 2021 and July 6 and July 20, 2022 Reasons released on September 6, 2022 Liana Marcon and Danielle Garbaty.................................................................... for the Crown Ryan Handlarski and George Gray.................................................................. for the Accused SCHWARZL, J.: REASONS FOR SENTENCE 1.0: INTRODUCTION [ 1 .] The offender, Jonathan Weir, killed Tyler Swartz on December 27, 2018 and was charged with murder.

Following the preliminary inquiry of this offence, I accepted the offender’s plea of guilty to manslaughter in October 2021. A full sentencing hearing took place in July 2022. [ 2 .] The prosecution and the defence both agree that a custodial sentence is necessary in this case. They also agree that ancillary orders regarding a weapons prohibition and DNA are to be made. However, they disagree on the duration and nature of the custodial portion of the sentence. Where, as here, the offence of manslaughter was committed whilst using a firearm, there is a minimum punishment of four years.

The prosecution seeks a sentence of five years whereas the defence ultimately seeks a conditional sentence order of two years less a day. [ 3 .] For the reasons I will set out, I find that the just and fit custodial sentence in this case is five years less certain reductions of nine months for a net sentence of 51 months or 4¼ years. 2.0: CIRCUMSTANCES OF THE OFFENCE [ 4 .] Jonathan Weir and Tyler Swartz were best friends, having met in high school. Both had an interest in guns, and they would frequently shoot for fun at Weir’s uncle’s property in Caledon where Weir had lived since 2017.

Sometimes, the two would be joined when shooting by other friends including Jon Viau and Justin Rheaume. On several occasions, Viau and Rheaume witnessed both Weir and Swartz handle guns so carelessly that they warned them to be more careful or there could be an accident.

[ 5 .] In December 2018, neither Jonathan Weir nor Tyler Swartz was licensed to possess or use any firearm or ammunition. Weir had been licensed in the past, but it had lapsed. Even when Weir was licensed, he was never trained or qualified to possess restricted or prohibited guns. Tyler Swartz had never been licensed. [ 6 .] Some time prior to Christmas 2018 Weir came into possession of a Colt R75 machine gun. This weapon is from the United States and is the civilian version of the Browning Automatic Rifle (BAR) .30 calibre light infantry machine gun.

Like the military version, the Colt R75 can be fired in two modes: semi-automatic and fully automatic and can fire many bullets very quickly. The Colt R75 is a prohibited firearm in Canada. Due to the classification of the firearm and Weir’s lack of licensing, his possession and use of it was unlawful. [ 7 .] On December 27, 2018, Weir was occupying an apartment above a garage at his uncle’s country property. Earlier that day, Rheaume visited and Weir showed him the machine gun which was not properly secured and was illegally accessible to anybody.

Later that day, Tyler Swartz came to the house at Weir’s invitation to shoot guns and hunt, activities which both men knew were illegal. After hunting the two decided to have a barbeque and cook a rabbit they had shot. At around 6:30 p.m., they called Viau and Rheaume and invited them to come over and party. During the call, both Weir and Swartz were laughing and in good spirits. Viau and Rheaume accepted the invitation and they drove to the property. [ 8 .] While waiting for the guests to arrive, Weir and Swartz were inside the apartment.

On Weir’s dining table was a marijuana bong, a bottle of liquor, and cocaine. Weir took control of the machine gun. Weir did not know the gun was loaded and the gun went off by accident while Tyler Swartz was standing in front of it. Two bullets were discharged from one squeeze of the trigger, killing Swartz. The victim was 19 years old. [ 9 .] The ammunition that killed Swartz was Russian-made and incompatible with the American machine gun. The use of improper bullets may have caused the gun to misfire. The wrong bullets may also have caused the weapon to act as if it was in automatic mode even when it wasn’t.

Weir was found to have a round of the same incorrect ammunition in his pocket when the police arrested him for second-degree murder. [ 10 .] Viau and Rheaume arrived shortly after the fatal shooting. They found Weir to be hysterical and crying. Weir did not call 911 right away but waited nearly an hour before doing so. Prior to calling, someone disposed of the machine gun in a large pond on the property. Weir told his psychiatrist that Viau “stuck the gun somewhere on the property.” [1] The gun was recovered from the pond by the police in the summer of 2019.

It was found to have a partially full 20-round capacity magazine containing the same Russian-made ammunition that killed Swartz and that was found in Weir’s pocket. [ 11 .] When Weir called 911, he lied by saying that he was walking his dog when he heard a shot in the apartment and that on returning, he found Swartz was dead.

Later, when being interrogated by the police, Weir repeated the lie before telling the police they were “mucking around” with the machine gun. [2] Weir told his psychiatrist that Swartz threw the gun at him and when he caught it, the gun went off. [3] When asked by his psychiatrist why he delayed calling 911 and lied to the authorities, Weir stated that he was in a state of extreme panic and was following the suggestions of Viau and Rheaume. [4] [ 12 .] When the police arrived, they found Tyler Swartz lying lifeless in Weir’s apartment.

The police found an unsecured SKS rifle next to his body and a plastic bag with Swartz’s blood on it outside an apartment window. Further investigation located hundreds of various rounds of ammunition strewn all over the property, including inside Weir’s pickup truck. Some of those rounds were .30 calibre Russian ammunition. None of the ammunition was properly stored. [ 13 .] The post-mortem examination of Tyler Swartz confirmed that the cause of death was by two gunshot wounds.

The examination also found metabolites of cannabis and cocaine in the victim’s system. 3.0: CIRCUMSTANCES OF THE OFFENDER 3.1: Generally [ 14 .] At the time of the offence, Jonathan Weir was 20 years old. At the time of sentencing, he is 24. He is single with no dependents and comes from an affluent family. He comes before the court as a first-time offender. [ 15 .] The offender lives with his mother and sister in Toronto. His parents are divorced. The breakdown of the marriage was difficult

on him growing up. [ 16 .] Mr. Weir has a high school education. He has never held any formal employment position but has done work in landscaping and snowplowing. [ 17 .] The offender describes himself as introverted. He suffers from migraine headaches.

Other than suffering pain in his left ankle while wearing a monitoring bracelet while on bail, he is in good physical health. [ 18 .] Since being charged, the offender has suffered nightmares and anxiety because of his criminal actions. [5] Weir suffered panic attacks while in detention awaiting bail. [6] He suffers from depression and post-traumatic stress disorder (PTSD) because of his crime. [7] He told his psychiatrist that he is deeply remorseful. [8] [ 19 .] At the time of the offence, the offender was drinking and using cannabis on weekends.

Since age 19, he has used cocaine “about 40 times.” He denies any problematic use of drugs or alcohol. [9] Upon admission to the Maplehurst Correctional Centre following his arrest, the offender stated that he used cannabis three times per week and consumed fifteen beers a week. [10] 3.2: Post-Arrest Police Conduct 3.2.1: Strip searches [ 20 .] After being arrested for murder, the offender was brought to a police station. While there, he was subject to several strip searches. 3.2.1.1: The First Strip Search [ 21 .] The first search was shortly after arriving.

He was brought to an interview room for the purpose of seizing his clothes. Three male officers were present, with one standing by the open door as an observer. There was no purpose to leaving the door open and it was possible that other officers could have walked past and peered in, although there is no evidence that this happened. [ 22 .] The offender removed all his clothes and turned around fully naked, despite his expressed discomfort at doing so. The offender says that he was so humiliated and nervous that one of the officers had to support him while he removed his underwear.

No reason was given to make Weir remove his underwear. The offender was completely naked for at least one minute, and for as many as three minutes, before being given temporary overalls (or “bunny suit”). The first bunny suit had a hole in the crotch, which was mitigated after the offender left the room and he was escorted to the nearby booking area of the station. [ 23 .] The police officers involved in this search did not consider this event as a strip search.

All officers involved in the first search acknowledged minimal training for strip searches. 3.2.1.2: The Second Strip Search [ 24 .] After being booked and given access to a lawyer, the offender was brought into a video-recorded room to have photos taken by a forensic identification officer, P.C. Harris, who is a woman. The offender was required to expose his torso while wearing the bunny suit, but without underwear. While this was happening, a male officer stood in the threshold of the open door to observe.

Following these photos, the identification officer directed the male officer to take the offender to another room to put his underwear on. After he did this, the male officer brought Weir back to the room across a common area in the station for further photographs. Weir was wearing only his underwear while being brought back to Officer Harris. The male officer did not consider walking the offender wearing only his underwear to be a strip search. 3.2.1.3: The Third Strip Search [ 25 .] Officer Harris took photos of the offender who was naked except for his underwear.

Once again, a male officer stood in the open door to observe. At one point, Harris got close to the offender’s crotch, while taking pictures which Weir found humiliating.

[ 26 .] P.C. Harris did not consider the situation as a strip search because she was not familiar at that time with the law of strip searches. She did not take many steps to ensure the offender’s dignity and privacy, other than to minimize the time taken to perform her duties of photographing him and to ensure that he was always at least partially clothed.

She acknowledged that it would be unlikely for a male officer to be permitted to photograph a female in their underwear. [ 27 .] As part of the materials submitted by the defence at the sentencing hearing, the offender provided an affidavit, sworn April 29, 2022. In it, he describes the experience during the searches as humiliating and “dehumanizing beyond measure.” He continues to feel deep shame as a result.

He also told his psychiatrist about the humiliation caused by the police while at the station. [11] 3.2.2: Video Recording of the Offender in the Cells [ 28 .] The offender was lodged the station cells for quite some time. At all times he was being video recorded as part of security protocol. He was video recorded twice while urinating. He did not use a privacy gown, although he was told that he could have one. The offender was embarrassed when he later discovered that he had been filmed urinating. 3.2.3: “First Degree Murder” [ 29 .] The offender was arrested for second-degree murder.

Later that night, the supervising Detective Inspector instructed investigators to proceed with a charge of first-degree murder. The decision to upgrade the charge was based on an incorrect understanding of the need for planning and deliberation to establish murder in the first degree. The inspector believed that due to multiple bullets being fired, this meant that the trigger was squeezed several times and thus was a deliberate act.

He confused the word “deliberate” (meaning wilful) with “deliberation” (which means long and careful thought). [ 30 .] Weir was held in custody for first-degree murder until his consent release about three months later. Between his arrest and his release, several news outlets reported the matter and referred to the charge of first-degree murder.

In September 2019 the charge was withdrawn and replaced with second-degree murder and unlawful possession of a loaded prohibited firearm. 3.3: Pre-Trial Custody and Bail 3.3.1: Pre-Trial Custody [ 31 .] On December 28, 2018, the offender was sent by the police to the Maplehurst Correctional Centre pending bail. He told officials there that because he had never been to jail before, he was deeply afraid. The officials suggested that he be placed in segregation to avoid the general prison population. Weir agreed with the suggestion.

However, because he preferred to be in segregation, he did not go into the yard. [ 32 .] While in prison he witnessed a fight and saw an inmate overdose, causing him nightmares. He lost 40 pounds due to the stress and was regularly subject to strip-searches. [ 33 .] Weir was arrested on December 27, 2018 and released on a consent bail on April 3, 2019. He spent 98 days, or 3¼ months in pre-trial custody. 3.3.2: Bail [ 34 .] On April 3, 2019, the offender was released on bail with three sureties. The Crown consented to his release.

Amongst the terms of release were conditions that he be subject to house arrest unless with a surety, no drugs or alcohol, no weapons, no cell phone or social media, no association with several people including his uncle, and electronic monitoring by means of a bracelet on his left ankle. In January 2020, there was a consent variation on the house arrest to permit the offender to work. At that time, other minor changes were made such as residency and an additional surety. [ 35 .] In July 2020 Weir unsuccessfully applied to remove the electronic bracelet condition.

In his supporting affidavit, Weir stated that heat and cord tangling from the charging process disturbed his sleep. He stated that that the device interfered with his ability to work by preventing him from wearing work boots and potentially becoming entangled with ladders. He also stated that the device was causing numbness, pinching, and scarring on his ankle. [12] At this sentencing hearing, he presented a note from his doctor who observed that the offender’s left ankle is smaller in circumference than his right ankle. The doctor was silent as to whether the difference is related to the ankle bracelet.

[ 36 .] As a result of his bail conditions, the offender was unable to attend his maternal grandmother’s funeral because his uncle was there. [ 37 .] Between April 3, 2019, and September 6, 2022, the offender has been on bail and wearing an electronic bracelet for 1,253 days or 3 years and 5¼ months. He has been able to work for the past two and a half years. 3.4: Community and Family Support [ 38 .] At the sentencing hearing, the offender filed twelve letters of good character from family, friends, neighbours, and clergy. It is clear that he enjoys strong support from the community and his family.

Terms such as “nice”, “respectful”, “compassionate”, “trustworthy”, “kind”, “sensitive”, “shy”, “helpful” are common in these letters. [ 39 .] The offender’s father, Daniel Weir, wrote in his letter that the Weir family has a long history with firearms of which Jonathan Weir is well aware. Daniel Weir stated that his son has both a passion for firearms and a firm understanding of how hazardous they are. Mr. Weir wrote that he taught Jonathan about gun safety.

His letter of support included the following passage: I struggle to even understand how the accident occurred because I taught the importance of firearms safety to my son, the same way I learned it from my father. We were not allowed toy guns in our home because my father told me that toy guns sent the wrong message because “guns are not toys, they are dangerous.” This is a lesson I passed on to my son. [ 40 .] I will refer to Daniel Weir’s observations later in my reasons. 3.5: Offender’s Statement on Sentencing [ 41 .] Jonathan Weir read a statement at the sentencing hearing.

He was filled with emotion as he described his anguish for having killed his best friend. He acknowledged the permanent consequences of his actions. He conveyed his wish to undo the harm he caused and dedicated his future to serving his community to honour his friend. His statement of remorse was sincere and profound. 4.0: VICTIM IMPACT [ 42 .] Victim impact statements of Tyler Swartz’s mother, Kim Swartz, and his three sisters, Sari Davids, Joanna Davids, and Michelle Davids, were filed as part of the sentencing hearing. Ms. Swartz and her daughters Sari and Joanna read their statements.

The inconsolable pain and fathomless suffering endured by all of them was palpable. There are no adequate words to describe the depth and breadth of the impact of this crime on the victim’s family.

Each victim was tremulous, passionate, and angry about the avoidable death of their beloved son and brother. [ 43 .] The grief of the victims is as profound and perpetual as the offender’s remorse for having caused it. 5.0: POSITIONS OF THE PARTIES 5.1: The Defence [ 44 .] Counsel for the offender submits while the position of the Crown on sentencing is reasonable, the circumstances of the offender and of the offence are such that the appropriate starting point is four years.

They further submit that when considering the post-arrest conduct of the police as well as other relevant considerations that the appropriate sentence is a conditional sentence of two years less a day. 5.1.1: The minimum punishment of four years is grossly disproportionate to this offender for this offence [ 45 .] The defence submits that the statutory minimum of four years in this case is a grossly disproportionate sentence because of what they describe as a “near accident” caused by a youthful first offender of good character who has not only taken responsibility of his crimes but has suffered humiliations caused by the investigators and endured the long and strict bail for between April 2019 and now.

[46.] The defence submits that jurisprudence allows a judge to impose a sentence below the minimum sentence in exceptional cases. Those exceptional cases include situations where the appropriate sentence would otherwise be below the minimum had it not existed andwhere the minimum sentence is grossly disproportionate in the circumstances which can include police misconduct that relates to theoffence or the offender.

The finding of such exceptional circumstances to permit a sentence less than the minimum requires a findingthat the minimum punishment would be cruel and unusual and thus a violation of s. 12 of the Canadian Charter of Rights and Freedoms. [47.] The offender argues that while a sentence of four years is a just starting point, it should be reduced significantly for severalreasons. [48.] The first reason they give is that the moral blameworthiness of the offender is low.

The range of criminal state of mind or“blame” in manslaughter cases is broad, going from “near accident” at the low end to “near murder” at the high end. As the SupremeCourt stated in R. v. Creighton, (SCC), [1993] 3 S.C.R. 3 at paragraph 86: “An unintentional killing while committing a minor offence…properly attracts a lighter sentence than an unintentional killing where thecircumstances indicate an awareness of risk of death just short of what would be required for murder.

The point is, the sentence can beand is tailored to suit the degree of moral fault of the offender.” [49.] The defence cited several cases of manslaughter involving guns where sentences ranged from suspended sentences to three yearsimprisonment in situations of “near accident” and up to six years jail in a case of “near murder.” These cases were decided before thecreation of the four-year minimum sentence. [50.] The offender relies on the very recent case of R. v. Penner, [2022] B.C.J. No. 185 (B.C.S.C.).

In that case, the offender shot andkilled his fiancé by pulling the trigger of a gun he was given by a third party and which he mistakenly believed was not loaded. Thecourt held that the offender’s blameworthiness was closer to the “near accident” end of the spectrum caused by his careless use of theweapon. In Penner, the sentencing judge found that absent the four-year minimum, the appropriate sentence would have been jail in therange of 18 months to two years less a day. [51.] The defence recognizes that the underlying unlawful acts in this case were serious.

He was in unlawful possession of a gun thatwas especially dangerous, and he stored and handled it unsafely. Nevertheless, they submit that this situation was one of near accidentbecause the offender did not know the gun was loaded at the time, he did not intend to fire it, he had no intention to harm anyone, therewas no evidence he aimed at his friend, there was no gratuitous violence, nor was there time to deliberate his conduct, and finally thatthere was a element of freak chance that resulted in Tyler Swartz’s death.

In other words, they submit the circumstances of this case ledto a tragedy that was close to a true accident. [52.] The second reason submitted by the defence for reducing the sentence below the minimum is that Jonathan Weir is very close tobeing the “best offender.” He is young, he has no criminal antecedents, he is of good character, substance use by Weir was not a factor,he is incredibly remorseful, and most importantly his moral blameworthiness is low.

They acknowledge the aggravating features of thiscase but submit that notwithstanding them, Jonathan Weir generally remains closer to the “best offender” rather than the “worstoffender.” [53.] The third reason put forward by the defence to reduce the sentence below the statutory minimum is that they submit that fouryears’ imprisonment would be grossly disproportionate due to the violations of his rights and improper conduct by the police.

Theoffender submits that the lassitude and negligence of the police in their duties during the strip searches were particularly egregious,causing the offender humiliation and perpetual trauma.

They further submit the additional conduct of the police in filming the offenderwhile urinating and unjustifiably laying a charge of first-degree murder make this an exceptional case wherein lowering the sentencebelow the minimum is the only meaningful remedy for what they submit is the appalling and shocking behaviour of the police. [54.] With respect to the strip searches, the defence submits that the police had little if any understanding of their duties set out morethan fifteen years earlier by the Supreme Court in the case of R. v. Golden, 2001 SCC 83 , [2001] 3 S.C.R. 679.

They submitthat the failure of all involved officers to understand their duties reveals a systemic problem that calls out for a meaningful remedy bythis court. [55.] Based on the evidence taken at the preliminary inquiry, the offender points out that the police did not follow many of the steps

set out in Golden including: failing to have the searches authorized by a supervising officer, failing to carry out the search by officers of the same gender as the detainee, failing to have no more officers present than reasonably necessary, failing to restrict observations of the search to maximize the detainee’s privacy, and failing to ensure that the detainee is not completely undressed at any one time.

The details of these submissions are set out at paragraphs 61 through 70 of the offender’s factum. [ 56 .] The offender submits that the filming of his urination while was not given a privacy gown constitutes a breach of his right to be free from unlawful searches. [ 57 .] The offender further submits the basis for charging him with first-degree murder was specious because it was founded on a fundamental misunderstanding of the actual requirements for first-degree murder. He submits that being so charged amounted to a violation of his right to be free from arbitrary detention.

He says he was stigmatized by facing the incorrect charges for months. [ 58 .] Recapping the arguments why this is an exceptional case where the four-year minimum would be cruel and unusual punishment, the defence submits that the behaviour of the police described above is a “particularly egregious form of misconduct by state agents.” They argue forcefully that the apparently systemic ignorance of the police regarding their duties in strip searches is so shocking and cavalier that it would undermine the public confidence in the administration of justice if a significant reduction in the sentence is not granted by me.

They submit the other acts of improperly video recording the offender and proceeding with an unfounded charge of first- degree murder compound the atrociousness of this situation. [ 59 .] The offender submits that a significant reduction in the sentence is the only reasonable remedy for what they describe as “abhorrent state conduct.” [13] [ 60 .] Mr. Weir further submits that another factor in determining if a minimum sentenced is grossly disproportionate is the impact of incarceration of the offender.

Here, the defence submits that while he was awaiting bail, the offender lost a great deal of weight, was living in constant fear of other inmates that resulted in him being placed in segregation and was subject to regular strip searches. He submits that these experiences coupled with his diagnosis of PTSD would make the minimum punishment in his case grossly disproportionate.

He also submits that his PTSD will have an extreme negative effect on him, thus justifying a sentence less than the minimum [14] . [ 61 .] The offender submits that upon a finding that it would be unconstitutional in his case to impose the minimum sentence of four years, a reduction of 8½ months is a meaningful and fair remedy. [ 62 .] The offender submits that even if the minimum sentence for this offence is not grossly disproportionate for him, there are reasonable hypothetical offenders who lack violent intent for whom it would be, thereby nullifying the minimum penalty. [15] 5.1.2: Credit for Pre-Trial Detention and Bail [ 63 .] Whether or not there is a finding that the minimum sentence is unconstitutional in this case, the court may give credit to the offender for pre-trial custody.

Normally that credit is 1:1 but may be enhanced to 1.5:1 where information or evidence warrant such enhancement. In Ontario, this is known as ‘ Summers credit’ [16] . In this case the offender was in pre-trial detention for 98 days. Both parties agree that I should give enhanced credit at 1.5:1 being 147 days, or 5 months. [ 64 .] Where particularly harsh conditions of detention exist, this can provide mitigation apart from, and beyond, the Summers credit, which is called ‘ Duncan credit’ in this province [17] .

In considering whether any enhanced credit should be given, the court will consider both the conditions of pre-trial detention and the impact of those conditions on the offender.

There is no mathematical formula to calculate the appropriate enhanced pre-sentence credit where particularly harsh conditions exist which have had a negative impact on the offender; the assessment is case specific and at the discretion of the court [18] . [ 65 .] In this case, the offender submits that by losing a lot of weight, witnessing a fight, watching an overdose, and being subject to strip searches were particularly harsh conditions that negatively impacted his well being. The defence submits that a reduction of an additional month is appropriate.

[ 66 .] Time spent under stringent bail conditions (such as house arrest) must be considered as a relevant mitigating factor on sentence, which is referred to as ‘ Downes credit’ [19] . While the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge, several factors must be considered in the assessment including the length of time spent on bail under house arrest; 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.

It is therefore inappropriate to adopt a rigid formula because there can be a wide variation in bail conditions. [ 67 .] In this case, the offender has been on bail for 1,253 days or nearly 3½ years during which time he has been on modified house arrest, electronic monitoring, and no access to a cell phone. The electronic monitoring has caused discomfort, interfered with his sleep, and restricted his ability to work. The non-association clause caused him to miss a family funeral. The phone condition denied him access to what may be described as a necessity for modern living.

He submits that he should be granted a credit of 313 days, being 25% of his time on bail. 5.1.3:

Summary of Defence Submissions [ 68 .] The defence submits that in the circumstances of this offence and of this offender, it would be unconstitutional to impose the mandatory minimum sentence of four years. He submits that the appropriate sentence is four years subject to reductions for violation of his rights, for pre-sentence custody, and for the effects of strict bail. He submits that when accounting for those reductions, the sentence comes in below two years.

As such, he submits that a conditional sentence is appropriate because he is the ideal candidate insofar as he does not represent a danger to reoffend either while subject to such an order or at any time in the future. He also submits that a conditional sentence can satisfy concerns regarding deterrence and denunciation [20] . 5.2: The Prosecution [ 69 .] The crown submits that in a situation of manslaughter involving accidental shooting, the appropriate range is four to eight years [21] .

In this case the prosecution submits that upon considering the circumstances of the offence and those of the offender, a fit sentence is five years. [ 70 .] The Crown submits that I should not go below the minimum sentence of four years because this is not an exceptional case as defined in the appellate authorities. The prosecution submits that in the leading case of R. v.

Nasogaluak [22] , the Supreme Court found that repeated assaults, significant bodily harm, and official concealment by the police were insufficient to conclude that the police conduct was “particularly” egregious to justify reducing the sentence below the statutory minimum. [ 71 .] The Crown submits that it is settled law that the minimum punishment of four years for committing manslaughter with a firearm is constitutionally valid [23] .

The Crown relies on the binding authority of Morrisey and Ferguson to argue that no hypothetical case was shown by the defence where an offender’s level of moral culpability for manslaughter using a firearm would result in a sentence lower than the minimum.

They submit that the offender in this case has not provided a basis upon which to reconsider the constitutionality of the applicable minimum sentence. [ 72 .] With respect to the strip searches, the prosecution submits that failure to strictly conform with the guidelines in Golden does not automatically lead to a finding of a violation of the detainee’s constitutional rights. They submit that the duty of the police during a strip search is to maintain the privacy and dignity of the detainee.

The Crown submits that if the letter of Golden was not followed in this case, its spirit was nevertheless honoured. [ 73 .] The Crown submits that the following facts demonstrate why there was no violation of the offender’s rights during the strip searches:

a) The police provided the offender something to cover the ripped bunny suit,

b) the search was for the lawful purpose of searching incident to arrest,

c) the searches were all done in a secure area only accessible to police,

d) there is no evidence any uninvolved officer or person peered into the open doors,

e) the whole process was no longer than necessary,

f) there was no inspection of the offender’s genitals or a cavity search,

g) all the officers were male except for Officer Harris,

h) there was no male forensic identification officer available at the time,

i) his nakedness was very brief and not seen by the female officer,

j) all officers were courteous and professional with the offender,

k) the offender seemed relaxed with Officer Harris stating, for example, “Take all the pictures you want”, and spoke openly with the officers, and

l) the offender never expressed any embarrassment or discomfort at the time by having a female officer examine and photograph him. [ 74 .] In alternative, the Crown submits if the police did violate the offender’s rights during the strip searches, their conduct did not come close to being “particularly egregious.” They also submit that any systemic training issues ought not be factored into this situation because, they say, this is not the right forum for such an assessment.

They submit that compensation to an offender is not appropriate when considering a remedy under section 24(1) of the Charter [24] . [ 75 .] Regarding the videotaping of the offender urinating in the cells, the Crown submits that there was no violation of his rights because the police took reasonable steps to protect his privacy. While being booked the offender was given a privacy gown. There is a large sign on the cell wall informing the detainee that he is being video monitored. During the first time he urinated, the offender was in his cell while wearing a “bunny suit” and had his back to the camera.

As result, he was fully clothed, and any exposed part of his body was invisible to the police. The second time he was video recorded while urinating, the offender was offered a privacy screen but declined to use it. [ 76 .] As for the charge of first-degree murder, the prosecution submits that while the police were wrong, they did not act capriciously and made the decision in good faith. They submit that this was not misconduct in the manner referred to in the case authorities, but if it was it added no additional stigma because the offender was still charged with murder.

Furthermore, they submit that the charge of first- degree murder had no impact on his bail because his release was on consent of the prosecution. [ 77 .] The prosecution submits that while the offender’s bail was strict, it was not punitive. They submit that there is no evidence that any physical impact of the electronic monitoring is permanent. 6.0: ANALYSIS 6.1: Is this a case of “Near Accident”? [ 78 .] Jonathan Weir did not intend to harm, let alone kill, Tyler Swartz. He did not intend to fire the machine gun. He did not know it was loaded.

All this said, I do not agree with the defence that on the spectrum of moral responsibility in manslaughter cases that this was a “near accident.” Nor do I find this to be a situation of “near murder.” For reasons I will explain, I find that the moral responsibility of this offender is far closer that of criminal negligence, which involves wanton and reckless disregard to human life. [ 79 .] Criminal negligence involves a person recognizing a danger but illegally pursuing it without thinking or caring about the consequences.

In this case, I find that Jonathan Weir was the master of a series of acts and omissions he undertook over time that led to his friend’s death which was an utterly avoidable accident waiting to happen. Those acts or omissions include the following. [ 80 .] Weir was a seasoned gun enthusiast who had past formal firearms training (necessary to ever be licensed) and came from a family who imbued him with a deep respect for the dangers of handling guns.

His father, Daniel, told the court that he passed on to the offender his family attitude that “guns are not toys because they are dangerous.” Furthermore, the offender and Swartz had been warned in the past by both Viau and Rheaume that their careless use of guns could cause an accident. Any accident with a gun could easily be fatal, which is why the rules and laws involving guns are very strict. Unlike many cases of manslaughter by firearm, this was not a situation where a naïve person or novice gun user made an innocent mistake.

Here, the offender knowingly and willingly turned his back on his training, his family tradition, and the prior advice of friends to create and perpetuate a situation where grievous bodily harm or death were patently foreseeable. [ 81 .] Jonathan Weir allowed his unlicensed friend to handle and fire guns in the past and to handle one at the time of this offence. He knew but did not care that it was both wrong and illegal to allow Tyler Swartz to ever fire a gun or handle ammunition. He ensured that guns and ammunition to be readily available to Swartz knowing Swartz was not qualified to possess or use them.

On this tragic occasion Weir not only had two guns (the machine gun and the SKS rifle) accessible to Swartz, but he also permitted .30 caliber ammunition to be literally everywhere for him or Swartz to use without restriction.

[ 82 .] In addition to making guns and ammunition readily available to his friend, he permitted liquor, cannabis, and cocaine to be within arms reach along with the illegal guns and ammunition. Drugs were found in the system of the deceased. It impossible for me to believe that Weir, having invited Swartz over, having seen drugs and alcohol sitting plainly on his table, and having invited Rheaume and Viau over to party with them that he did not know Tyler Swartz was using intoxicants at the time of these events.

As the person in charge, the offender was responsible for setting up this wildly hazardous scenario. [ 83 .] I find that the offender’s admission that he did not know the gun was loaded to be an extremely aggravating factor in this case particularly given what I have just described. It was supremely irresponsible of him to have failed to check the magazine and chamber of the weapon prior to bringing it into his apartment and making it available to Swartz. This failure is deepened by his past training, as well as his knowledge of, and enthusiasm for, firearms.

It was incredibly reckless of Weir to have had any firearm or ammunition of any sort anywhere near his friend, especially one who was using drugs that fateful night. It was completely reckless of Weir, as the “owner” of the gun to fail to safely secure it so that Swartz could not access it. The catastrophe that occurred was not only predictable, but in fact predicted by the offender’s friends.

Jonathan Weir disrespected his family’s cautions and sensible philosophy by allowing the gun to be treated like a toy by an unqualified and intoxicated companion. [ 84 .] To make matters worse, Jonathan Weir was not in possession of just any gun, but a military-designed machine gun. It was a weapon he was never trained on or allowed to possess. Its sole purpose was to kill as many people as possible in the shortest amount of time.

He treated the gun like a plaything for the amusement of himself and others as was demonstrated when he showed it Rheaume earlier that day. [ 85 .] Weir was in control of Russian ammunition for an American machine gun. He was solely responsible for the type of ammunition to be obtained and used by anyone handling the weapon.

Being the person in charge, it was his responsibility to ensure that the ammunition being made available was compatible with the weapon he was playing with, or otherwise allowed others to play with. [ 86 .] I agree with, and adopt, the submissions of the prosecution that even with an unintended discharge, the death of Tyler Swartz was no near accident, but was instead the culmination and all-too predictable outcome of the past and continuing deliberate acts and omissions of the offender.

Had Viau and Rheaume arrived sooner than they did, it is reasonably foreseeable that either one or both could have been injured or killed as well. Weir’s wanton recklessness was further aggravated by inviting more people into the perilous situation he created. [ 87 .] Therefore, I reject the able submissions made by the defence that this was a near accident. Instead, I find the moral responsibility of Jonathan Weir to be far closer to criminal negligence.

Given the substantial fault of the offender, I reject the submission that he can fairly be called the “best offender.” On the other hand, due to the many mitigating factors, Mr. Weir is also not the worst offender. 6.2: Is the Minimum Sentence of Four Years Unconstitutional in this Case? [ 88 .] I find the appropriate sentence to be not less than five years because I find the moral blameworthiness of this offender is very high for the reasons just stated.

Even if there was no minimum sentence, five years is a fit sentence. [ 89 .] I will explain why I do not find the minimum penalty grossly disproportionate to this offender or to any hypothetical offender. Firstly, I do not find the conduct of the police, even at its highest, to be “egregious”. Even if I did, I do not find it to be particularly so. [ 90 .] It is not necessary that misconduct by the police amount to a violation an offender’s constitutional rights. However, such violations are valid considerations.

In this case, the offender submits that the police misconduct involving faulty strip searches, filming of the offender urinating in the cell area, and charging him with first-degree murder were breaches of his rights or otherwise as police misconduct. [ 91 .] I do not agree that the filming of the offender urinating in the cells was a violation of his right to free from unreasonable searches and seizures. The police took reasonable steps to ensure his privacy in the cells. He was informed that he was being monitored.

He was given a privacy gown on being booked and he turned down the offer of a gown the second time he urinated. In either case, the offender was fully clothed whilst urinating and no part of his body was visible on the recording. Accordingly, notwithstanding the embarrassment of the offender on learning of the recordings, the recording was not state misconduct nor a violation of his rights.

[ 92 .] I agree with the prosecution that the decision to charge the offender with first-degree murder was not police misconduct but was a good faith mistake of law. That mistake had no impact on how the police investigated the matter or how they treated the offender. Being charged with homicide of any sort is traumatic and stigmatizing. The offender always faced a murder charge regardless of the degree. The offender was never legally prejudiced by the charge. When first told about it, he was given immediate access to a lawyer.

It had no effect on his bail since the prosecution consented to his release on the greater charge. The charge was withdrawn prior to his preliminary inquiry. In my view, the charge of first-degree murder has no role to play in determining the fit sentence in this case as it was not misconduct and not a violation of his rights. Even if it was, I would not describe it as egregious. [ 93 .] I agree with the offender that his rights were violated during the strip searches.

Upon examining the entirety of the situation I find that the police were less than acceptably diligent in attempting to preserve the offender’s dignity. The prosecution is correct to say that strict adherence to the Golden guidelines in not required. However, the goal when police engage in strip searches is to reasonably maintain the privacy and dignity of the detainee. As the court in R. v. Atule , 2018 ONSC 5416 stated at paragraph 52 : This approach focuses on the consequences to the detainee of failing to follow one or more of the guidelines.

If the consequence is a material loss of dignity without good reason, there will be a Charter breach. If the failure to follow a guideline has no material impact on the detainee's dignity, there is no Charter breach. In certain cases, the failure to adhere to a single Golden factor will result in a Charter breach, in other cases the failure to adhere to multiple factors will not result in a Charter breach…. [ 94 .] I find the following conduct deficient, but not materially undignified. Although the doors were open, they were substantially blocked by the observing officers.

The searches were conducted in a room where only authorized persons could possibly be present and there is no evidence anybody not involved in the searches saw what was happening. While the searches were not authorized by a supervising officer, given the reasons for them (being search incident to arrest) I have little doubt that the supervisor would have approved. Furthermore, I am not persuaded that an impermissibly large number of officers were either involved or participated. [ 95 .] The following conduct, however, unjustifiably infringed the offender’s dignity.

The offender was made to be naked for no apparent reason. That said, he was naked only for a very short time in a private setting with male officers. No female officer saw him naked. Being naked was a meaningful, but brief, denigration of the offender’s dignity. [ 96 .] Furthermore, the dignity of the offender was unreasonably impugned when the police had a female officer conduct the forensic examination and photographing of the offender. Strip searches are inherently intrusive, humiliating, degrading and traumatic even when conducted with sensitivity and in adherence to the Golden guidelines [ 25] .

Extraordinary circumstances that are exigent may excuse a departure from the Golden guidelines [ 26] . There were no exigent circumstances to justify a female officer in this case. It appears that the police simply sent the first available officer, who happened to be a woman, without any consideration of the gender of the detainee. There are other forensic identification officers who are male, but none were on duty that night. Had the police even thought about it, there is no reason to believe a male officer could not have been located and sent.

Had the offender been a woman and the identification officer a man, I have no doubt that they would have delayed the search to see if a same-gender officer could have been assigned. Given the nature and scope of the search, time was not of the essence. I find that no exigent circumstances existed to justify a female officer to conduct the rather intimate examination of the offender. [ 97 .] The offender states, both directly in his affidavit and through his psychiatrist that he has been profoundly and even permanently traumatized. Humiliation and trauma are a given.

The degree of the impact on the person’s dignity is, of course, peculiar to each case. Here, the offender’s declaration that he has been “dehumanized beyond measure” must be balanced against his demeanour and words at the time he was with Officer Harris which reflected calm and willing participation. The true impact on his dignity is probably somewhere in the middle if not closer to his reaction at the time. [ 98 .] I also agree with the offender that the poor knowledge of all police officers regarding their duties on strip searches falls into the category of a larger systemic issue.

As such, this tends to make the unreasonable police conduct more disturbing. However, I also agree with the Crown that the police, likely through good luck, generally managed to honour the spirit of Golden but for the issues I have just outlined. [ 99 .] On balance, I find that the offender’s right to be free from unreasonable search and seizure was violated during the strip searches at the station and that the substandard conduct and poor training of the police are serious.

I will therefore take the strip searches into consideration when passing sentence. [ 100 .] I do not, however, find the conduct was particularly egregious to justify a remedy that would bring the appropriate final sentence below the statutory minimum. The police behaviour in this case was not violent, deliberately demeaning, cruel, or abusive in any way. To the contrary, they were always courteous and decent with offender. I agree with the Crown that the police were sloppy and even negligent, but that is not enough to render any reduction below the minimum. Furthermore, while the breach had a meaningful impact

on the offender it had no effect whatsoever on the offence itself. The case at bar is no where close to the same league of seriousness as the situation in Nasogaluak , supra. [ 101 .] I find that a meaningful and proportionate reduction in sentence for the violation of the offender’s rights to be one month. [ 102 .] I am not persuaded that the introverted personality or mental fragility of the offender based on his PTSD renders a sentence under the minimum grossly disproportionate. Any time in jail will be difficult for him.

Concerns about his health and any compassionate or temporary absences during incarceration are best dealt with by the correctional authorities. [27] [ 103 .] The minimum sentence of four years is therefore not grossly disproportionate for this offender. [ 104 .] I also agree with the Crown that the defence has not demonstrated any reasonable hypothetical scenarios to justify the nullification of the minimum sentence.

The Supreme Court cases of Morrisey and Ferguson remain good law and the legal landscape that shaped those decisions remains unchanged by the situation before me. [ 105 .] I therefore dismiss the application to find the minimum sentence of four years unconstitutional. 6.3: The Fit Sentence [ 106 .] Five years is a just and fit sentence that balances all the circumstances of the commission of the offence, the circumstances of the offender, and the impact on the victims.

I will briefly review the mitigating, aggravating, and other relevant factors I considered when reaching my decision on the appropriate length of the sentence. [ 107 .] I have already concluded that there will be a reduction in the final sentence of five months for his pre-sentence custody and a further one month for the breach of his rights caused by the flawed strip searches.

I will turn to the questions of Duncan and Downes credits. [ 108 .] With respect to the submission of a further reduction due to particularly harsh pre-sentence custodial conditions, or ’Duncan credit’ I am not persuaded that this offender should be given any additional reduction. While losing weight due to stress, witnessing a fight, and seeing an overdose over a three-month incarceration are unpleasant, I do not find that these conditions were particularly harsh or had an especially harmful effect on the offender.

He is clearly a sensitive, introverted, and peaceable person, but his delicate personality does not justify extra credit. Equally, the fact that he was subject to routine strip searches does not make that condition harsh, let alone particularly harsh. There is no evidence that any of those searches were done improperly or that he was treated differently than any other inmate. Lastly, the fact he was in segregation was his choice. While he was denied time in the yard, there is no evidence this had any ill effects on the offender.

If anything, being in segregation eased the harshness of his incarceration. [ 109 .] Regarding any credit or reduction for the effects of being on bail, or ‘ Downes credit’, I reduce the final sentence by three months for the following reasons. [ 110 .] The offender was on house arrest for nearly 3½ years but I place little weight regarding its impingement of the offender’s liberty as there was very little punitive effect in this case. He is a single person with no obligations to care for others. The house arrest was subject to exceptions including being with a surety.

There was no evidence that the house arrest interfered with any realistic work opportunity. To the contrary, offender was able to work while on bail for more than the past two years. There was no evidence that it interfered with his mobility or ability to travel. There was no evidence the house arrest condition interfered with his access to health care. [ 111 .] I agree that access to a cell phone is a common, if not ubiquitous, tool of modern life but there is no evidence that the phone restriction caused any meaningful interference in his abilities to communicate or to access to information.

He was prohibited from social media, but not from computers or the internet. I do not know if he had a land line, but one could have been obtained without need of a court order if he did not.

[ 112 .] The electronic monitoring was uncomfortable and inconvenient. There is no evidence that the device caused his left ankle to shrink. Even if it did, there is no evidence that it impaired the offender’s health or fitness either temporarily or permanently. [ 113 .] The restriction on association led to the offender missing his grandmother’s funeral. Therefore, on one occasion his bail conditions adversely affected his ability to carry on normal family relationships.

Although he was living at his uncle’s property when the offence was committed and was not allowed to communicate with him, there is no evidence of what their relationship was like in order for me to determine if the non-communication condition had a punitive impact beyond missing the funeral. [ 114 .] Considering the nature of his charge, the offender’s bail terms were neither onerous nor inordinate. [ 115 .] The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation [28] .

While the bail conditions in this case were strict and modestly interfered with the offender’s liberty, I do not find the conditions were akin to punishment to such a degree that anything more than a reduction of three months is warranted. 6.3.1: Mitigating Factors [ 116 .] There are number of mitigating factors that I have taken into account including the following:

a) The offender is a young, first-time offender,

b) He has strong family and community support,

c) He has good rehabilitative prospects,

d) He is truly remorseful and takes full responsibility for killing his best friend,

e) He has pled guilty, albeit not an early stage, but before trial,

f) He has fragile mental health, suffering from PTSD due to his crime,

g) He had stringent conditions of bail for a long time, and

h) He had no intention to harm anybody when the offence occurred. 6.3.2: Aggravating Factors [ 117 .] There are also aggravating factors which I have taken into account. They include the following:

a) The moral blameworthiness of this offender is very high. The offender was responsible for creating a situation in which a foreseeable and completely preventable tragedy occurred,

b) He was unlicensed to possess any firearm at the time,

c) He was never licensed or trained to possess a prohibited weapon,

d) He was in possession and control of a machine gun which is a particularly dangerous item requiring higher than normal safety procedures,

e) He permitted drugs and alcohol to be present with the machine gun,

f) He permitted improper ammunition to be available for the machine gun,

g) He failed to check if the gun was loaded before making it available for Swartz to handle,

h) He turned his back on his training, his family’s attitudes about gun safety, and the prior cautions of friends,

i) He had a history of careless and illegal use of firearms and allowed the victim to do so as well in the past,

j) He delayed calling the police and lied to the police about what happened blaming his friends that he was following their advice because he panicked, and

k) The victim impact is profound. 6.3.3: Other Relevant Factors

[ 118 .] The offender was in pre-sentence detention for over three months, was on strict bail, and was subject to an improperly conducted strip searches shortly after his arrest. 7.0: CONCLUSION [ 119 .] In

summary, I find the fit sentence in this case to be five years after having considered the applicable legal principles, the submissions of counsel, and the various relevant factors. From those five years, I reduce the sentence by nine months as follows: five months for pre-sentence custody, one month for the breach of his rights by the police on the strip searches, and three months for the strict bail conditions. [ 120 .] The net result is a sentence of 51 months, or 4¼ years for the offence of manslaughter. [ 121 .] In addition, there will be a primary in-custody DNA Order, a

section 109 Firearms Prohibition, a 743.21 Order, and a Victim Surcharge. Counsel may address me on the details of these ancillary orders. _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice