Her Majesty the Queen - v. -, 2021 SKPC 13

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 13 Date: February 19, 2021 Information: 991120643 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tony James Thompson Appearing: Greg A. Chovin For the Crown Thomas Hynes For the Accused SENTENCING DECISION K.A. LANG , J I. INTRODUCTION [ 1 ] Mr. Thompson was charged with numerous weapons offences following a single incident on June 5, 2019. On that day Mr.

Thompson was found near downtown Regina in possession of a loaded sawed-off shotgun and several rounds of ammunition. [ 2 ] The Crown proceeded by Indictment on Information 991092919. There were 10 counts in total.

[ 3 ] The Defence’s election was to Provincial Court. [ 4 ] The trial occurred over two days, September 30, 2020 and October 1, 2020. [ 5 ] Several documents were filed in court by consent including: 1.) an agreement relating to continuity of exhibits and lawfulness of the DNA warrants; 2.) a lifetime weapons Prohibition Order relating to Mr. Thompson; and 3.) a Certificate of Analysis relating to the firearm. [ 6 ] At trial the Crown called six police and one expert witness.

Defence called two witnesses consisting of the accused and his girlfriend Jessica Peresien. [ 7 ] The trial was adjourned to October 14, 2020 for a decision. On that day Mr. Thompson was convicted on all eight of the weapons related offences. He was found not guilty of one count relating to an ammunition prohibition. At the conclusion of trial the Crown stayed Count 10, relating to stolen property, for lack of evidence. [ 8 ] By request of Defence, sentencing on this matter was adjourned on several occasions until submissions were heard by the Court on January 21, 2021. [ 9 ] Mr.

Thompson was, at the time of trial, and remains in custody as of today, the date of sentencing. II. FACTUAL BACKGROUND [ 10 ] Mr. Thompson was spotted by police on June 5, 2019 while he sat on a bicycle on the 16 block of Ottawa Street in Regina. He was speaking to an unknown female. Mr. Thompson was seen to be carrying a backpack. [ 11 ] Mr. Thompson was well known to police. He had an outstanding warrant. When police attempted to approach Mr. Thompson about his warrant Mr.

Thompson fled on his bicycle with his backpack still in tow and being carried on his back. [ 12 ] A brief 15-minute chase ensued throughout the streets of a downtown residential neighborhood before Mr. Thompson was ultimately caught and arrested by police. Upon his arrest Mr. Thompson no longer carried the backpack. He had been seen with it only moments earlier. Police backtracked along Mr. Thompson’s route and quickly found the backpack in a nearby recycle bin. [ 13 ] The backpack was found to contain numerous items including a loaded sawed-off shotgun and 12 additional shells. [ 14 ] At trial Mr.

Thompson adamantly denied any knowledge of the sawed-off shotgun which he carried in his backpack. His girlfriend Ms. Peresien, who was also in custody on unrelated matters, testified that the gun was hers. [ 15 ] The Crown’s case, which included uncontroverted DNA evidence, was overwhelming. The testimony of Mr. Thompson and Ms. Peresien was discredited during skillful cross-examination by the Crown. None of their testimony was accepted by the Court. [ 16 ] The Court found that the Crown proved its case beyond a reasonable doubt and accordingly convicted Mr. Thompson of the offences noted above.

[ 17 ] At the sentencing hearing the Court heard from the Crown and Defence. At the conclusion of counsel submissions Mr. Thompson indicated a desire to address the Court. With the consent of Defence counsel Mr. Thompson was given that opportunity. [ 18 ] For the most part Mr. Thompson spoke well on his own behalf however as part of his submissions to the court Mr.

Thompson made the following remarks, notwithstanding his adamant testimony at trial that he knew nothing about the sawed-off shotgun in his backpack: “I want to take responsibility for having the gun.” “Under no circumstances should I have been carrying a gun.” “Normally I would make excuses as to why I had the gun but I have no excuse, I should never have had the gun in the first place.” “I have had a rough life but that doesn’t mean I should be carrying around a gun.” [ 19 ] Mr.

Thompson’s admission at the sentencing, after two days of trial involving nine witnesses, numerous documents and countless hours of court time, and at which Mr. Thompson and his girlfriend apparently committed perjury, was disconcerting to the Court. [ 20 ] At the sentencing hearing Mr. Thompson also entered a guilty plea to an unrelated Breach of Undertaking offence from February 5, 2020. This offence occurred at a time after the current charges had already been laid.

He will be sentenced herein on this charge as well. [ 21 ] At the sentencing hearing the Crown filed: a comprehensive Brief of Law referencing numerous cases, a copy of the Accused’s criminal record, a transcript of a previous weapons related sentencing for Mr. Thompson from 2018, as well as a Forfeiture Order. [ 22 ] Defence filed numerous cases as well as a comprehensive Gladue Report written on behalf of Mr. Thompson. III. POSITION OF PARTIES [ 23 ] The Crown was of the view that the convictions against Mr. Thompson are extremely serious, the most significant of which is the Criminal Code

section 95 conviction for possessing a loaded prohibited firearm in a public place without being authorized or licensed to carry such firearm. [ 24 ] The Crown conceded that most of the firearm convictions, while somewhat unique to each other, related to the same event and should be treated as one offence for the purposes of sentencing. [ 25 ] The Crown submitted that the Criminal Code conviction under

section 117.01 , of being in possession of a firearm while prohibited, is distinctive from the others and required a consecutive sentence. [ 26 ] The Crown took no position on the Breach of Undertaking charge from Information 991120643 (February 5, 2020 offence date).

[ 27 ] The Crown also filed a Forfeiture Order relating to the seized weapon and ammunition. [ 28 ] The Crown urged the Court to consider Mr. Thompson’s long and continuous criminal record which included several convictions for violence and weapons related offences. The Crown acknowledged some Gladue factors on behalf of Mr. Thompson but argued these factors were taken into consideration in the Crown’s position on sentencing. [ 29 ] The Crown’s position on sentencing was therefore as follows: Information 991092919 (weapons charges from June 5, 2019) Count # Criminal Code

Section # Offences Proposed Sentences 5 95(1)(

a) Possess a loaded Prohibited Firearm without authorization or license 5 years 1 86(1) Carry firearm in careless manner 1 year concurrent 2 88 Possession of weapon for purpose dangerous to public 1 year concurrent 3 90 Carry concealed weapon without authorization 1 year concurrent 4 92(1) Possess a firearm without firearm registration permit 1 year concurrent 6 96(1) Possess a firearm obtained by an offence 1 year concurrent 7 117.01 Possess firearm while prohibited by Court Order 18 months consecutive 8 Ammunition Prohibition Not Guilty 9 145 Breach of Undertaking 30 days concurrent 10 Possession of Stolen Property Stay of proceedings Information 991120643 (Breaches of Undertaking from February 5, 2020) Count # Criminal Code

Section # Offences Proposed Sentences 1 145(3) Breach of Undertaking No recommendation 2 145(3) Breach of Undertaking Stay of proceedings [ 30 ] Finally, the Crown conceded that as at January 21, 2021 Mr. Thompson had spent 440 actual days in pre-trial custody and the Crown was prepared to credit this time at a rate of 1.5:1. At that rate Mr. Thompson had accrued 660 days of enhanced credit as at January 21, 2021. Defence Position [ 31 ] The Defence did not deny the seriousness of these convictions but urged the Court to consider significant Gladue factors and possible FASD issues relating to Mr. Thompson.

[ 32 ] Defence urged the Court to take a rehabilitative approach to sentencing. [ 33 ] Notably the Defence had some Kienapple [1] concerns with respect to the weapons offences but was agreeable to treating them as one offence for the purposes of sentencing and allotting concurrent time as the Crown had proposed. [ 34 ] Defence also urged the Court to consider the harsh conditions for prisoners on remand during the COVID-19 pandemic and thus award extra credit over and above the 1.5:1. [ 35 ] Defence agreed that the

section 117.01 Criminal Code offence should be treated separately for sentencing purposes. [ 36 ] The Defence position on sentencing was therefore as follows: Information 991092919 Count # Criminal Code

Section # Offences Proposed Sentences 5 95(1)(

a) Possess a loaded Prohibited Firearm without authorization or license 18 months plus term of probation 1 86(1) Carry firearm in careless manner 1 year concurrent 2 88 Possession of weapon for purpose dangerous to public 1 year concurrent 3 90 Carry concealed weapon without authorization 1 year concurrent 4 92(1) Possess a firearm without firearm registration permit 1 year concurrent 6 96(1) Possess a firearm obtained by an offence 1 year concurrent 7 117.01 Possess firearm while prohibited by Court Order 6 months 8 Ammunition Prohibition Not Guilty 9 145 Breach of undertaking 30 days concurrent 10 Possession of Stolen Property Stay of proceedings [ 37 ] Defence suggested as part of the probation order that Mr.

Thompson be ordered to partake in the “Coming Home to Stay” program. [ 38 ] The Defence agreed with the Crown’s calculation of pre-trial custody of 660 days of enhanced credit as at January 21, 2021 but urged the Court to consider a further “COVID” credit. [ 39 ] The Defence took no issue with respect to the Forfeiture Order sought by the Crown. [ 40 ] Defence also made no recommendations relating to the Breach of Undertaking conviction from February 5, 2021 being Information 991120643. IV. CIRCUMSTANCES OF THE OFFENDER

Gladue [ 41 ] Mr. Thompson is 36 years of age. A comprehensive Gladue Report was filed with the Court authored by Dr. Michelle Stewart on behalf of the Integrated Justice Program Gladue Writing Team (the “ Gladue Report”). [ 42 ] A brief

summary of the Gladue Report, which itself is very comprehensive and has been reviewed in totality by the Court, is as follows: Mr. Thompson - Was born the sixth of twelve children; - His mother, Shirlene Thompson, was from Sakimay First Nation and passed away in 2015; - His father, Otto Thompson, was from Little Pine First Nation and is currently living but in poor health according to Mr. Thompson; - Mr. Tony Thompson, and his mother, attended residential schools but his father did not; - Mr.

Thompson largely identified as living in urban centres as his parents moved from their home communities to urban centres which the Gladue Report writer stated at page 5: “aligns with broader experience of dislocation that came about following Residential Schools. Multigenerational effects include cultural loss and physical displacement that can include alienation from formal education systems”; - Mr. Thompson lived with his aunt and uncle as a young child and for a time believed they were his parents; - At age 6 he returned to his mother but experienced abuse. He resented his mother for this; - Mr.

Thompson also lived in numerous foster care homes periodically as a result of the abuse from his mother; - Mr. Thompson’s school life was significantly disrupted because he was always living somewhere else, but he claimed that this shaped his adaptive personality; - Mr. Thompson denied being the victim of any sexual abuse; - Mr. Thompson’s mother drank excessively and it is possible that as a result he suffers from Fetal Alcohol Spectrum Disorder (FASD) although the Gladue Report writer made no mention of a formal diagnosis; - Mr. Thompson was physically abused at Residential Schools; - Mr.

Thompson’s parents were drug dealers in the community which surprisingly garnered respect from kids in the community, according to Mr. Thompson; (page 14 of the Gladue Report) - Mr. Thompson’s father was a drug user; - As a result of Mr. Thompson’s drug dealings, negative interactions with the police, including searches of their house, was normalized; - Ultimately Mr. Thompson became estranged from his family, and fits in more with “street people” according to him; - Mr. Thompson is himself a drug addict; - Mr.

Thompson confirmed spending many years of his life so far in youth facilities, jails and penitentiaries; - On the positive side Mr. Thompson indicated to the Gladue Report writer that he was tired of jail.

When he finished his most current jail term he planned to: - pursue education to achieve employment which he had never had before; - reconnect with his 16-year-old son (whose mother passed away in 2019); - wanted to address his addictions issues along with his girlfriend’s addiction issues and in that regard would like to pursue treatment; - advised that “I am ready to change” (page 18 and 19 of the Gladue Report). [ 43 ] During his latest period of incarceration Mr. Thompson had started reading self-help books including, The Law of Attraction,

The Secret, 7000 Ways to Listen. He told the Gladue Report writer that these books had significantly changed his attitude and perspective on life. [ 44 ] The writer of the Gladue Report set out treatment options for Mr. Thompson depending on whether he found himself at a Federal Institution, Provincial Institution, or in the community. This information was extremely helpful as part of the Court’s deliberation. Criminal Record [ 45 ] Mr. Thompson has a concerning significant criminal record starting as a youth in 1997 and continuing with alarming regularity up until the present date. [ 46 ] In total Mr.

Thompson has now amassed 101 Criminal Code convictions.

Nine of those were for violent offences including several assaults, an armed robbery, and an assault causing bodily harm. [ 47 ] His last conviction, aside from the present set of convictions, was in February of 2019 for which he was sentenced to 222 days in jail. [ 48 ] His record has only sporadic gaps which are mostly attributable to his being in custody. [ 49 ] He has 56 non-compliance convictions. [ 50 ] He has four weapons related convictions with the last, prior to the new set of convictions, being in 2018 for which he received a sentence of 242 days of incarceration. [ 51 ] He was, prior to these latest offences, subject to a lifetime weapons prohibition relating to his prior criminal past. [ 52 ] He has had 24 separate custodial sentences. [ 53 ] He has received probation on seven occasions with the last being for 12 months in September of 2016 (he has spent several years in prison since that time). [ 54 ] He has breached probation orders on 10 occasions with the last being in May of 2018. [ 55 ] He has 35 Undertaking/Non-attend court convictions with his last being in 2018. [ 56 ] Notably since 2018 he has spent a considerable amount of time in prison therefore the period between 2018 and 2021 does not really constitute a gap in his record.

V. ANALYSIS

Principles of Sentencing [57] In determining the appropriate sentence for this offence, I am guided by the provisions of sections 718 to 718.2 of the Criminal Code. A sentence must be one that fits the particular offence and the individual offender before theCourt. [58] In order to achieve the fundamental purpose of sentencing outlined in

section 718 of the Criminal Code, namely contributingto respect for the law and the maintenance of a just, peaceful and safe society, the sentence I impose must be a just sanction. It mustpursue one or more of the following objectives: denunciation of unlawful conduct; deterring the offender and others from committingoffences; separation of the offender from society if necessary; rehabilitation; providing reparation to the victim and community; andpromoting a sense of responsibility and acknowledging the harm done.

The relative emphasis to be placed on each of these objectivesmust be appropriate for the circumstances of this offence and this offender. [59] Even though the emphasis given to the sentencing objectives listed in

section 718 may vary according to the circumstances ofthe case, the resulting sentence must respect the principle of proportionality.

Section 718.1 of the Criminal Code states that thefundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree ofresponsibility of the offender: R v Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 [Nasogaluak]. [60] I must also have regard for the secondary sentencing principles listed in

section 718.2 of the Criminal Code, includingconsideration of aggravating and mitigating circumstances, totality, parity, the need to consider all available reasonable sanctions otherthan imprisonment, and the need to consider the circumstances of Aboriginal offenders. [61] Notably, denunciation and deterrence are paramount principles in cases involving weapons. R v Dauphinee, 2014 NSSC 12. Proportionality [62] Proportionality is central to the sentencing process: Nasogaluak; R v Solowan, 2008 SCC 62, [2008] 3 SCR 309.

It is themost important of the factors codified in sections 718 to 718.2: R v Arcand, 2010 ABCA 363, 264 CCC (3d) 134.

In R v Ipeelee, 2012SCC 13 at para 37, [2012] 1 SCR 433, Justice LeBel described proportionality as the “sine qua non” of a just sanction, saying that asentence which properly respects the principle of proportionality inevitably ensures that secondary goals such as denunciation, restraint,promoting justice for victims, and maintaining public confidence in the administration of justice, are met. [63] In R v Yuzicapi, 2011 SKCA 134, 377 Sask R 133 Chief Justice Klebuc emphasized the importance of proportionality insentencing and provided guidance as to its application.

At paragraph 28, he wrote: [28] The gravity of an offence and the moral culpability of the offender in committing the offence are the principal factors to beconsidered in sentencing. In Keshane this Court stated the gravity of an offence lies in three considerations: (

i) the nature andcomparative seriousness of the offence, (ii) the circumstances of its commission, and (iii) the harm caused by it. Parity [64] Consideration needs to be given to similar cases. The Supreme Court has noted at R v M. (C.A.), (SCC),1996 SCC 230 at para 92, [1996] 1 SCR 500: [92] Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should beexpected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of acceptedsentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

Established Ranges [65] In R v Brown, 2020 ONSC 6355 [Brown], Justice Roberts of the Ontario Superior Court noted as follows: [27] Since Nur was decided, the Court of Appeal has continued to affirm that those who commit s.95 offences falling at the "trulycriminal conduct" end of the spectrum can expect exemplary sentences emphasizing deterrence and denunciation.

In the trial decision inNur, Justice Code noted that the range of sentence for a first offence of possession of a loaded handgun simpliciter (without additionalconvictions such as for drug trafficking) prior to the enactment of the mandatory minimum "tended to be between two years less a dayand three years imprisonment", with much longer sentences for recidivists: R. v. Nur, 2011 ONSC 4874 at para.42. In R. v. Graham,2018 ONSC 6817, at paras. 38 Justice Code confirmed this range for the "well-situated first offender" relying in particular on R. v.Smickle, 2014 ONCA 49.

In Smickle, originally heard together with Nur, the Court of Appeal confirmed that a sentence of two years lessone day was the appropriate sentence on a Crown appeal. Mr. Smickle was found in possession of a loaded firearm while alone in hiscousin's apartment. He was 27 years old, had no criminal record, and there were substantial mitigating circumstances. [28] Justice Code confirmed that the range is between three to five years "for a first s.95 offence where the use and possession of thegun is associated with criminal activity, such as drug trafficking".

The Court of Appeal rejected the argument that the defunct mandatoryminimum improperly inflated the bottom of the appropriate range, concluding instead that "recent sentences reflect Canadian society'sintolerance for gun crime and are in keeping with the direction given by the Supreme Court of Canada": R. v. Ellis, 2016 ONCA 598 atparas.77-79. In these kind of cases, the Court of Appeal has consistently upheld sentences in the range identified by Justice Code evenwhere the offender is young and does not have a criminal record: R. v. Marshall, 2015 ONCA 692; R. v.

Mansingh, 2017 ONCA 68; R. v.Omoragbon, supra, at paras.22-24. [29] For those who are repeat offenders in relation to s.95, the range post-Nur is between six to nine years. In R. v. Slack (2015),2015 ONCA 94 , 321 C.C.C. (3d) 474 (Ont. C.A.) a total sentence of ten years was upheld, consisting of eight years for a repeatbreach of s.95, plus two years consecutive for breach of weapons prohibition orders. See also Graham, at para.39, and R. v. Hector, 2014ONSC 1970. [66] I accept as being applicable to the case at bar, the range of sentencing set out above.

Notably the cases do distinguishbetween offences which are “truly criminal” and those which are “regulatory” in nature. [67] In the case at bar, Mr. Thompson was found to have been carrying a loaded sawed-off shotgun and twelve rounds ofammunition, in a residential neighborhood and in close proximity to downtown Regina. [68] This conduct clearly falls within the definition of a true crime. This was not an offence which is regulatory in nature such asin the case of a hunting rifle stored close to ammunition. R v Myrie, 2020 ONCJ 430 at para 44 [69] There is no legal and safe purpose for Mr.

Thompson to possess this firearm and ammunition as he did. The firearm wasillegal and posed a serious risk to the public safety. Mr. Thompson’s conduct falls squarely in the “true crime” category. Both theSupreme Court of Canada and the Saskatchewan Court of Appeal have stated that sentencing courts must acknowledge the inherentdanger of illegal firearms in our communities and send a message that the possession, transportation and use of illegal guns must not betolerated. R v McKenzie, 2020 SKPC 31 [70] With respect to the

section 117.01 offence which is to be sentenced separately, the cases would seem to indicate a range of 6

months - 2 years. R v Slack , 2015 ONCA 94 , 321 CCC (3d) 474 R v Delorme , 2017 SKCA 3 R v Guha , 2012 BCCA 423 [ Guha ] CASES [ 71 ] Both the Crown and Defence filed a multitude of cases. [ 72 ] Perhaps one of the most significant cases for consideration is that of R v Nur , 2015 SCC 15 , [2015] 1 SCR 773 [ Nur ]. [ 73 ] Although Nur was ultimately a constitutional challenge related to a minimum sentence provision of the Criminal Code , the facts in Nur , and the companion case of Sidney Charles, did consist of factual scenarios that were strikingly similar to those of Mr. Thompson.

Notably the Supreme Court, although striking down the minimum sentencing provision, did not interfere with the actual sentences imposed upon Mr. Nur or Mr. Charles. A full review of those cases is therefore instructive. Facts Relevant to Mr. Nur ( Nur supra at paragraph 17 ) [17] One evening in January 2009, a young man entered a community centre in the Jane and Finch neighbourhood of Toronto and told a staff member that he was afraid of someone who was waiting outside to get him. The staff member saw someone waiting outside who looked threatening. The neighbourhood had very high levels of crime.

Gun violence was a serious problem. The supervisor put the community centre on lockdown and called the police. When the police arrived, they saw four men standing at one of the entrances of the community centre. Nur was among them. As one of the police officers approached, the men scattered. [18] The police officer chased Nur. He held his left hand against his body and appeared to be concealing something. As the officer gained ground on Nur, he saw Nur throw something away. The officer caught and arrested Nur moments after.

Returning to the area where he had seen Nur throw something to the ground, the officer found a loaded handgun under a parked car. The gun was a working 22-calibre semi-automatic with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun is a prohibited firearm.

When functioning properly, the gun can fire all 24 rounds in 3.5 seconds. [19] Nur was not found to be involved with the threatening behaviour, and it was not clear when, for how long, or how Nur came to possess the loaded handgun. [20] Nur was charged with one count of possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code . The Crown proceeded by indictment and Nur elected to be tried by judge alone. He ultimately pleaded guilty to the charge, but he did not admit any facts relevant to the allegations beyond those essential to the plea.

At his sentencing, Nur put the Crown to the proof of any facts that it relied on as aggravating factors for sentencing. Nur also challenged the constitutionality of the three-year mandatory minimum sentence imposed by s. 95(2)( a )(i). [21] Nur comes from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was 19 and attending high school. He was performing well and hoped to eventually attend university. He had worked a number of part-time jobs and volunteered in the community. Teachers and past employers praised his performance and his considerable potential.

One teacher described Nur as "an exceptional student and athlete who excelled in the classroom and on the basketball court ... an incredible youth with unlimited academic and great leadership skills" ( 2011 ONSC 4874 , 241 C.R.R. (2d) 306 (Ont. S.C.J.), at para. 34 ). Nur had no prior criminal record . (emphasis added)

… [23] The trial judge held that a sentence of 40 months was appropriate for the offence and the offender… [ 74 ] In many respects the facts in Nur were considerably less egregious than they are for Mr. Thompson. Mr. Nur was youthful, had no criminal record, and plead guilty to the offence. Mr. Nur had considerable community support and significant prospects for rehabilitation. Mr. Nur’s sentence of 3 years and 4 months was not disturbed by the Supreme Court. Although Nur had many more mitigating factors, the factual scenario of events in Nur was strikingly similar to that of Mr. Thompson’s case.

Facts Relevant to Mr. Charles ( Nur supra at paragraph 27 ) [27] In May 2008, Charles and another man were living in a Toronto rooming house. An incident at the rooming house was reported to the police. They attended and secured the scene. The Emergency Task Force arrived and searched the house, finding a loaded Ruger semi-automatic handgun and ammunition in Charles' bedroom. It was equipped with an over-capacity magazine, which is a prohibited device under the Criminal Code , containing 13 rounds of live 9-mm ammunition. A further round of ammunition was found on Charles' bed near the gun.

The serial number on the gun had been removed. Charles admitted to police that he did not have a licence to possess a firearm and did not hold a current registration certificate for the firearm. Charles was arrested and charged with various firearm-related offences. [28] The Crown elected to proceed by way of indictment. Charles pleaded guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code .

He also pleaded guilty to possession of a firearm knowing that the serial number had been defaced, contrary to s. 108(1)( b ); possession of a firearm while subject to a firearms prohibition order, contrary to s. 117.01(1), and without being the holder of a licence, contrary to s. 91(1); and possession of ammunition while subject to a firearms prohibition order, contrary to s. 117.01(1). [29] Charles has a lengthy and serious criminal record. At the time of sentencing, it included approximately 20 prior convictions, five of which involved crimes of violence and five other convictions for firearm-related offences.

Two of Charles's prior convictions are relevant (under s. 84(5) and (6)) to the application of the mandatory minimum sentence in s. 95(2)( a )(ii). … [33] The sentencing judge dismissed Charles' s. 12 challenge. … She sentenced Charles to seven years' imprisonment, less five years' credit on a two to one basis for two years, six months of pre-sentence custody. [ 75 ] The fact scenario in Charles is arguably less serious than for Mr. Thompson. Mr. Charles was found in possession of his weapon and ammunition in his home. Mr. Charles plead guilty to these offences. Mr.

Thompson was convicted after trial of having the loaded sawed-off shotgun and ammunition in a public place. Both men had significant and concerning criminal records involving violence and weapons. The Supreme Court did not interfere with Mr. Charles’ sentence of 7 years imprisonment and stated at paragraph 120: [120] It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles. R v Brown

[ 76 ] Mr. Brown was arrested as part of a drug investigation. Search warrants for his apartment and vehicle were executed and in addition to discovering various drugs, police also discovered weapons. A handgun was found in his vehicle. It was loaded and had an over capacity magazine. No weapons or ammunition were found in Mr. Brown’s home. [ 77 ] Mr. Brown plead guilty early on relating to the drug offences but was convicted after trial of several weapons offences including sections 95(1) , 92(1), 94(1) and two counts of 117.01. [ 78 ] Mr.

Brown was 30 years of age with a limited but significant criminal record involving violence and weapons (armed robbery 2013 and assault with a weapon – (a bottle) in 2018). [ 79 ] Mr. Brown grew up in a poor but stable home but got in with the “wrong crowd” in high school and spiraled into drugs and alcohol and missing classes. Mr.

Brown had good support from his mother and had some prosocial friends. [ 80 ] In Brown the trial judge quoted extensively from the Nur (supra) case before coming to the following conclusion on sentences at paragraphs 43 and 46: [43] I agree with the Crown that a fit sentence on the s.95 offence would be four years.

This is squarely in the middle of the range for a first s.95 offender who possesses an illegal firearm for a criminal purpose. … [46] I also agree with the Crown that the appropriate sentence for the breach of firearms prohibitions is 18 months but, again, because of totality, I would reduce it to one year. [ 81 ] In Brown (supra) notably the totality principle was invoked because Mr. Brown had also been sentenced to considerable custody relating to the drug charges which stemmed from the same incident. [ 82 ] Mr.

Brown’s weapon convictions also related to drug possession however also notable is that he plead guilty to the weapons offence, had significantly fewer criminal convictions than does Mr. Thompson, and had good support in his community. R v Kachuol , 2017 BCCA 292 [ Kachuol ] [ 83 ] During an impaired driving investigation, it was discovered that Mr. Kachuol had a loaded handgun in the console of his car. The gun was a prohibited weapon that had never been registered. [ 84 ] At the time of the offence Mr. Kachuol was under a

section 109 weapons prohibition order related to a prior drug conviction for possession for the purpose involving marihuana. [ 85 ] Mr. Kachuol was convicted after trial. [ 86 ] Mr. Kachuol was born in Vancouver to an immigrant family. He grew up in a diverse but tight knit community and had considerable support. The Court received numerous letters testifying to Mr. Kachuol’s good character. Prior to sentencing Mr. Kachuol was involved in a serious incident which had caused him a traumatic brain injury and he was still suffering from a disability relating to that injury, at the time of sentencing. [ 87 ] Mr.

Kachuol at the time of the appeal, was working towards finishing his grade 12 and had a job lined up.

[ 88 ] In Kachuol the appeal judge relied significantly on the Nur (supra) decision and overturned the conditional sentence originally imposed and replaced it with a sentence of 3 years of incarceration relating to the

section 95 offence. [ 89 ] Notably Mr. Kachuol had peculiar circumstances involving a brain injury. He also had a limited criminal record and had good prospects for rehabilitation. R v Guha [ 90 ] Mr. Guha was pulled over by police for traffic violations. In the course of the police stop the police discovered that Mr. Guha was carrying a semi-automatic handgun in the waistline of his pants. The gun was loaded with 9 rounds of ammunition and had an oversized magazine. [ 91 ] This was Mr. Guha’s first weapons conviction.

He had a limited drug record involving possession for the purpose of trafficking in marihuana which also put him on a weapons prohibition. [ 92 ] Prior to his arrest Mr. Guha had been living with his parents and working in graphic design. He also was doing volunteer work and received letters of support from his employer. [ 93 ] The appeal court overturned the 3-year sentence and increased it to 4 years (section 95). The appeal court maintained the 6- month consecutive sentence relating to

section 117 offences. [ 94 ] Notably this was Mr. Guha’s first weapons conviction. He had a limited criminal record and good family and community support. Mr. Thompson’s personal circumstances are far more aggravating. R v Hiscock , 2020 BCCA 355 [ Hiscock ] [ 95 ] This was an appeal from sentence where Mr. Hiscock received a 6-year sentence for firearms offences. The most significant was a 5-year sentence for the

section 95 offence and a one-year sentence for breaches of firearm prohibitions. [ 96 ] In this case Mr. Hiscock had fired the gun 7 times but there was no evidence he possessed it until the moment he discharged it. [ 97 ] The gunshots occurred from the interior of Mr. Hiscock’s residence while he was in a drug induced (methamphetamine) state of psychosis.

[ 98 ] Mr. Hiscock was as an Aboriginal offender with a “moderate” criminal record. He presented with several Gladue factors. [ 99 ] The appeal was allowed in part on the basis that the sentencing judge failed to give adequate consideration to Mr. Hiscock’s Gladue factors. The appeal court reduced Mr. Hiscock’s period of incarceration on the

section 95 offence from 5 years to 4 years. [ 100 ] The facts in Hiscock were in some respects more significant than those for Mr. Thompson in that he actually fired the weapon, although he only possessed it for a brief moment and was suffering from a drug induced psychosis. He only had a moderate criminal record. Like Mr. Thompson he also had Gladue factors. R v Gamble , 2006 SKCA 46 , 285 Sask R 113 [ Gamble ] [ 101 ] Mr. Gamble was discovered by Saskatoon police walking in an alley at 11:00 a.m. in a residential neighborhood. Ultimately Mr.

Gamble was stopped and searched and found to have a loaded pistol in his possession as well as 49 .22 calibre bullets and some drug paraphernalia. [ 102 ] After an unsuccessful Charter challenge to the search, Mr. Gamble entered guilty pleas to several of the weapons related charges and the Crown withdrew several other charges. [ 103 ] Mr. Gamble had a significant record including violence and weapons related offences. [ 104 ] Mr.

Gamble was only 22 years old. [ 105 ] The appeal court found the original sentence of 18 months to be demonstrably unfit and increased it to 3 years. [ 106 ] The Court notes that it is difficult to reconcile Gamble (supra) with other decisions involving similar offences and offenders, many of which have been reviewed herein. Notably Mr. Gamble was a somewhat youthful offender and eventually plead guilty to these offences. The case itself is dated, with the appeal decision being rendered in 2006, nearly 10 years prior to Nur (supra) which in this Court’s view is the leading case in this area.

R v Morris , 2018 ONSC 5186 [ Morris ] [ 107 ] In this case Mr. Morris was found guilty by a jury of possessing a concealed prohibited firearm and ammunition. The charges arose after a call to police of a home invasion. Police eventually spotted Mr. Morris and others. Mr. Morris began to run, eventually stripping himself of his jacket which contained the weapon. Mr.

Morris was eventually caught by police and the jacket and gun were found shortly thereafter. [ 108 ] The Court in Morris found violations of the Charter that merited a remedy on sentence. [ 109 ] Defence also tendered significant evidence related to how the criminal justice system treated African Canadians, including the unfair and disproportionate jailing of black offenders.

[ 110 ] Notably Mr. Morris was a youthful first-time offender with supportive family and friends. It was noted that the gun was found in an “unused stairwell, concealed in a jacket, amidst a pile of debris and water”. [ 111 ] In Morris the Court found that the prospects of rehabilitation for the offender were high and found him to be warm, kind and respectful. In the Court’s words, Mr. Morris was far from a “hardened criminal”. [ 112 ] The trial judge took into account all of these factors including the Charter breach and sentenced Mr.

Morris to a custodial sentence of one year. [ 113 ] Although this is a more recent case, it is somewhat distinguishable on its facts from Mr. Thompson’s case. Mr. Morris was a youthful first-time offender with significant prospects for rehabilitation. In Morris the Court also found Charter breaches which were considered as part of his sentence. [ 114 ] Morris (supra) does not seem to fit within the established range for sentences involving offences and offenders of this nature.

Furthermore, the Court has discovered that Morris (supra) is currently under appeal and therefore this decision must be viewed cautiously. Gladue /FASD [ 115 ] A very thorough ‘ Gladue Report’ was filed in court some of which has been summarized in this decision. Clearly Mr. Thompson has significant Gladue factors. The Crown acknowledged that fact. The only real question is what to do with this information given the nature of the offences and this specific offender. [ 116 ] In addition, although no formal diagnosis of FASD was presented to the Court, Defence submits that it is likely that Mr.

Thompson suffers from FASD. Indeed, a letter of support was provided to the Court from Ms. Andrea Kotlar-Livingston, Executive Director of the FASD Network of Saskatchewan and coordinator of the Integrated Justice Program (IJP). IJP supports Indigenous clients who are involved in the justice system and who are either diagnosed with FASD or are suspected to have FASD. They are currently working with Mr.

Thompson. [ 117 ] The Crown would suggest, relying on the Gladue (supra) case at paragraph 79, that the more violent and serious the offence, the more likely it is as a practical reality that the terms of imprisonment for Aboriginals and non-aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing. [ 118 ] In the case of R Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ] Chief Justice Richards had this to say regarding sentencing discounts relating to Gladue factors: [36] It is important to recognize that Gladue and Ipeelee are not unvarnished calls to impose shorter jail terms on Aboriginal offenders.

The Supreme Court’s reasoning is far more nuanced than that. Its approach is very much tied to the concept of restorative justice and the decision in Gladue , in particular, returns repeatedly to that concept in explaining how it is that sanctions other than incarceration might satisfy the sentencing objectives referenced in

Part XXIII of the Criminal Code . It is essential that this basic theme be remembered. In very simplified terms, the fundamental dynamic underlying s. 718.2 (

e) when a trial judge sentences an Aboriginal offender is not merely one of reflexively giving less jail time. Rather, it involves the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approaches are appropriate. In the end, s. 718.2 (

e) means what it says: “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.…”

[ 119 ] Chief Justice Richards goes on to say, at paragraph 37 of Chanalquay , that the analysis mandated by

section 718.2 (

e) is not a free-standing inquiry brought into play to adjust an otherwise fit sentence after it has been determined. It should be considered as a part of the overall sentencing exercise in arriving at a fit sentence. At paragraph 38, the Court stated: [38] In other words Gladue considerations should not drive a judge to ignore other sentencing principles and objectives.

The question in sentencing an Aboriginal offender, as for other offenders, will always be “For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?” (Emphasis in original) ( Gladue at para 80) [ 120 ] The Crown also relied upon the very recent decision from the Saskatchewan Court of Appeal of R v Ratt , 2021 SKCA 7 [ Ratt ]. [ 121 ] Mr. Ratt was convicted of several offences including aggravated assault, obstructing a police officer and breach of probation. He received a term of imprisonment of 46 months.

The Crown appealed on the grounds that the trial judge unreasonably emphasized rehabilitation and failed to give consideration to the sentencing objective of protection of the public. [ 122 ] Mr. Ratt was an Indigenous person with significant Gladue factors. He had a lengthy and violent criminal record and a history of non-compliance. Mr. Ratt had spent a great deal of time in custody and was at significant risk to reoffend. The Court in Ratt summarized his criminal record at paragraph 50, as follows: [50] In order to assess the Crown’s argument, it is necessary to review some of the details of Mr.

Ratt’s criminal record. Mr. Ratt is now 33 years of age. His first conviction for a criminal offence came in March of 2001, when he was just 13, and his record has continued unabated ever since. By the time he committed the offences at issue in this case, Mr. Ratt had been convicted of a total of 67 offences; 34 as a youth and 33 as an adult.

Of those convictions, 21 were for offences involving violence, unlawful use or possession of firearms and other weapons, or uttering threats, including two previous convictions for aggravated assault, three for assault causing bodily harm, two for assault with a weapon, two for common assault, and one for assaulting a police officer. He also had amassed 17 convictions for breaching probation orders or bail conditions and eight convictions for escaping custody or being unlawfully at large. [ 123 ] Interestingly, Mr. Ratt’s criminal record is in some respects not as significant as Mr. Thompson’s record. Mr.

Thompson has many more convictions (nearly double the amount), and although Mr. Thompson has several violent and weapons related convictions he does not have as many as Mr. Ratt. Mr. Thompson does however have far more non-compliance convictions. [ 124 ] The Court in Ratt concluded as follows: [91] In the end even though there is, as the sentencing judge found, a direct connection between Mr. Ratt’s traumatic and dysfunctional upbringing and the commission of his offences, this is not a case that can reasonably warrant a focus on restorative aspects of sentencing. In light of (

i) the gravity of the offence; (ii) Mr. Ratt’s overall criminal record; (iii) the unrelenting history of his violent offences, including the frequency and nature of such offences, and the rate at which Mr. Ratt commits such offences when not in custody; and (iv) his repeated failure to comply with any form of rehabilitative or restorative component of past sentences, it is clear that the primary focus in sentencing Mr. Ratt must be on protection of the public. The circumstances of this case strongly suggest that objective is best achieved by separating Mr. Ratt from society.

To that end, the sentence must be of sufficient length. [92] Turning back to the fundamental principle, the sentence must be proportionate to the gravity of the offence and the degree of Mr. Ratt’s responsibility in committing it. As stated earlier, the offence here is one of significant gravity. While Mr. Ratt’s degree of responsibility is somewhat tempered by reason of his background and systemic factors, considered in light of s. 718.2 (

e) and the dicta in Gladue and Ipeelee , that has only a marginal impact on the determination of a fit sentence in this case because of his relentless history of violent offending and the extent to which he has already been given credit for such factors in prior sentencing. [ 125 ] Mr. Thompson’s lawyer argued, based largely on the Gladue Report, that Mr. Thompson was now ready to change his ways. Indeed, the Gladue Report filed referenced several comments by Mr. Thompson towards a new life including that he: - is tired of coming to jail; - wanted to pursue education and training to establish a skill and achieve employment; - would like to pursue treatment and counselling;

- wanted to get to know his son better; - is just ready to change. [ 126 ] Mr. Thompson credits his new attitude as being brought about by the fact he has taken to reading self-help books while in custody including books like, The Law of Attraction, The Secret, 2000 Ways to Listen (page 23 Gladue Report). [ 127 ] While the Court is encouraged by Mr. Thompson’s self- proclaimed shifting attitude, it can’t help but be somewhat skeptical given his long history of criminal offending and his conduct during the recent trial where he apparently perjured himself on the witness stand.

While the Court is most hopeful that Mr. Thompson has turned a corner, the Court is also mindful that reading a few books, while a good start, is usually not all that is needed for long-term reform. In the Court’s view, given his long history of criminal offending and significant Gladue and FASD factors, significant programming and counselling will be needed if Mr. Thompson is to achieve long term success. In that regard I turn to the Gladue Report itself. In that Report the writer sets out programming objectives for Mr. Thompson under various scenarios.

The scenario with the most intensive programming is in a Federal Institutional setting. The Gladue Report writer described the programming available to Mr. Thompson in that setting at pages 26 and 27 of the Report as follows: Federal Options If Mr. Thompson is given a federal sentence, there is space available for him at the Willow Cree Healing Lodge in Duck Lake Saskatchewan. Willow Cree is a minimum-security healing lodge that offers holistic programming that fosters the individual’s personal growth, cultural identity and the development of healthy and balanced living.

There are programs available that address parenting, abandonment, substance abuse, and family violence, all of which may be beneficial based on Mr. Thompson’s history. Potential candidates for this program must demonstrate a desire and willingness to change, and Mr. Thompson has clearly expressed such. Mr. Thompson would need to be referred to Willow Cree and once his case is reviewed, he would be assessed for risk factors. Based on his risk factors, Mr. Thompson would be required to complete a core treatment program which can take up to 5 months. This program would be individualized to Mr.

Thompson and his background, but all core treatment programs have intellectual, physical, emotional and spiritual components. The program focuses on implementing a support plan in place to build the confidence necessary to make it in the community upon release. If Mr. Thompson is given a federal sentence, a release plan option would be to have him work closely with the Integrated Justice Program (see support letter) using their release planning workbook that includes goals and planning for release. One option for release, for example, could be to move back to Regina for some time to stabilize as he reintegrates.

This will also allow him to maintain his connection to the Integrated Justice Program and transition to the “Coming Home to Stay” with Regina Treaty/Status Indian Services (RTSIS) which will be discussed later in this

section as it is both an option for release planning from remand or following provincial or federal sentence. [ 128 ] The Court is in a difficult situation. Mr. Thompson’s Gladue and FASD factors cannot be ignored but neither can other principles of sentencing, including the paramount considerations in cases such as this of denunciation and deterrence and public protection. [ 129 ] Perhaps the fine line to be walked is one in which both recognition of the paramount considerations and a restorative sentence can be achieved through a federal term of incarceration. The offences for which Mr.

Thompson has been convicted are extremely serious. He needs help, and says he is ready for change. The federal programming available is precisely what Mr. Thompson needs and is requesting. If he truly wants to change, as he says he does, then the federal programming gives him the best chance of success long term which ultimately also protects the public. Aggravating and Mitigating Circumstances Aggravating - Mr. Thompson was in possession of a loaded, prohibited firearm while under a lifetime firearms prohibition;

- Mr. Thompson was in possession of a loaded sawed-off shotgun and 12 rounds of ammunition in a public place, and while travelling throughout the downtown area; - Mr. Thompson has a significant, and continuous criminal record including violence, weapons and numerous non-compliance convictions; - Mr. Thompson already has a prior

section 117 conviction (Breach of Weapons Prohibition Order). Mitigating Circumstances - Mr. Thompson’s Gladue and FASD factors; - Mr. Thompson’s seemingly changed attitude towards a crime free life; - Ordinarily the Court would consider an accused’s admission of guilt during sentencing as a sign of remorse but here those admissions came only after a trial where Mr. Thompson adamantly denied, under oath, any wrongdoing. Kienapple [ 130 ] Defence counsel initially raised Kienapple (supra) issues relating to the multitude of weapons convictions relating to the same circumstance.

Ultimately that issue has been resolved by the Court indicating that it will treat the weapons convictions, aside from the weapons breach, as one offence for sentencing purposes and concurrent time will be allotted. Defence indicated it was satisfied with this approach. [ 131 ] Notably this was indicated to be an acceptable approach in Kienapple . COVID-19 Reduction of Sentence [ 132 ] Lastly Defence counsel argued that Mr. Thompson should be entitled to an additional reduction in sentence attributable to being in custody during the COVID-19 pandemic and the harsh conditions suffered by Mr.

Thompson as a result. [ 133 ] Defense counsel submitted that during his pre-trial custody Mr. Thompson received no programming, was in 24 hour lock up, had not received any visitors since March 2020 and had reduced phone access. [ 134 ] Notably none of this was presented to the Court by way of evidence supported by documentation. In addition, there was no evidence, properly before the Court, relating to how these conditions were particularly egregious to Mr. Thompson. [ 135 ] In fact, in reading the Gladue Report filed by Defence counsel, at page 22, it discussed how Mr.

Thompson “spends much of the three hours a day out of his cell working out.” Seemingly this contradicts Defence counsel’s submissions. [ 136 ] Additionally, Mr. Thompson discussed at page 23 of the Gladue Report that during his time in custody he had “undertaken a journey of self-help and improvement” by reading several self-help books. These books had apparently completely changed his attitude about offending. The Court would view this as a positive result of his pre-sentence incarceration.

[ 137 ] Section 719(3.1) of the Criminal Code is clear that if the circumstances justify it, the maximum credit for time served is one- and one-half days served for each day spent in custody. [ 138 ] Defence argued that the Court can consider a credit of something more because of COVID-19. In this instance I disagree. [ 139 ] Normally a challenge to section 719(3.1) would come to the attention of the Court pursuant to a

section 12 Charter (Cruel and Unusual Punishment) application. That was not done here, nor would it have succeeded based on the limited information provided to the Court. Defence counsel did however reference Ontario decisions which seemed to open the door for this possibility. As well, Nasogaluak and R v Summers , 2014 SCC 26 , [2014] 1 SCR 575 have opened the door for courts to consider state misconduct as a mitigating factor in sentencing an offender, above and beyond the confines of section 719(3.1) .

R v Sheppard , 2020 ABCA 455 . [ 140 ] In R v Duncan , 2016 ONCA 754 at para 6 [ Duncan ], the Court found that “there was evidence that the appellant served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the lockdown conditions. Indeed, some of the material filed on sentencing indicated that the appellant made positive rehabilitative steps during his presentence incarceration. [ 141 ] In Mr.

Thompson’s case there was no real evidence before the Court, in a form acceptable, of the conditions faced by Mr. Thompson while in presentence custody. In fact, the Gladue Report itself seemed to contradict the conditions experienced by Mr. Thompson as indicated to the Court through legal counsel. In addition, and as was the case in Duncan (supra), there is some indication based again on the Gladue Report, that Mr.

Thompson actually did make some positive rehabilitative steps while in custody. [ 142 ] While the Court acknowledges the likelihood of more difficult conditions for inmates during the COVID-19 pandemic, in the Court’s view such an application was not properly before the Court or supported by the evidence presented and therefore must fail. VI. CONCLUSION [ 143 ] Having taken into consideration the principles of sentencing, the circumstances of Mr. Thompson both with respect to his Gladue and FASD factors, and having considered all of the aggravating and mitigating circumstances of Mr.

Thompson’s case and the applicable law, I have come to these conclusions: - The offences for which Mr. Thompson has been convicted are extremely serious. Recent cases reflect Canadian society’s intolerance for gun crimes; - The Supreme Court of Canada decision in Nur ( supra), is not only instructive but relevant factually to Mr. Thompson’s case; - The cases of Gamble (supra) and Morris (supra) are distinguishable for reasons already given; - Gladue and FASD considerations while relevant, perhaps have some diminished importance due to Mr. Thompson’s significant and lengthy criminal history.

However, rehabilitation to the degree required by Mr. Thompson is available to him within a Federal institution. [ 144 ] Accordingly, I am sentencing Mr. Thompson as follows: Information 991092919 (weapons charges from June 5, 2019)

Count # Criminal Code

Section # Offences Proposed Sentences 5 95(1)(

a) Possess a loaded Prohibited Firearm without authorization or license 5 years 1 86(1) Carry firearm in careless manner 1 year concurrent 2 88 Possession of weapon for purpose dangerous to public 1 year concurrent 3 90 Carry concealed weapon without authorization 1 year concurrent 4 92(1) Possess a firearm without firearm registration permit 1 year concurrent 6 96(1) Possess a firearm obtained by an offence 1 year concurrent 7 117.01 Possess firearm while prohibited by Court Order 12 months consecutive to Count 5 8 Ammunition Prohibition Not Guilty 9 145 Breach of Undertaking 30 days concurrent 10 Possession of Stolen Property Stay of proceedings Information 991120643 (Breaches of Undertaking from February 5, 2020) Count # Criminal Code

Section # Offences Proposed Sentences 1 145(3) Breach of Undertaking 1 month consecutive to Counts 5 and 7 2 145(3) Breach of Undertaking Stay of proceedings [ 145 ] It is acknowledged by the Crown and accepted by the Defence that as at January 21, 2021 Mr. Thompson had 440 actual days of pre-trial custody. As at the date of this sentence, February 19, 2021, he will have additional pre- trial custody time now totaling 469 days. Enhanced at 1.5 – 1., Mr. Thompson will receive credit on the sentence of 704 days or 23.5 months. Applying that enhanced credit to the

section 95 conviction would result in the following time going forward.

Section 95 Conviction 60 months (original sentence) – 23.5 months (enhanced credit) = 36.5 months going forward.

Section 117.01 Conviction 12 months going forward and consecutive to the

section 95 conviction. Section 145(3) conviction

1 month going forward and consecutive to the sections 95 and 117.01 convictions. [ 146 ] Total time going forward for Mr. Thompson is therefore 36.5 + 12 + 1 = 49.5 months. All concurrent time is unaffected by the pre-trial credit. [ 147 ] Pursuant to the Gladue Report, this Court is recommending that Mr. Thompson be considered for the Willow Cree Healing Lodge and the programming it offers. VII.

ANCILLARY ORDERS [ 148 ] There will be a Forfeiture Order relating to the weapon and ammunition seized in a form of order already filed by the Crown and consented to by Defence. [ 149 ] The Court is also making an order under section 109(3) of the Criminal Code prohibiting Mr. Thompson from possessing any firearms, crossbow, restricted weapon, ammunition and explosive substances for life. ____________________________ K.A. Lang, J