R. v. Milotte, 2021 ONCJ 281

CITATION: R. v. Milotte , 2021 ONCJ 281 DATE: May 14, 2021 COURT FILE No: 19-1459 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HER MAJESTY THE QUEEN -AND- EVERETT MILOTTE Before Justice Michael G. March Submissions on Sentence heard April 22, 2021 Reasons for Sentence released on May 14, 2021 Caitlin Downing ………………...…………….………………………Counsel for the Crown Scott Murray .……………………………………………………Counsel for Everett Milotte March, M.G., J. : Introduction : 1 . On December 18, 2020, I found Everett Milotte (“Milotte”) guilty of careless storage of a firearm, possession of a prohibited device (a switchblade) and possession of a prohibited firearm contrary to sections 86(2), 92(2) and 92(1)(

b) respectively of the Criminal Code (“the “ Code ”). 2 . Milotte entered his guilty pleas on what was to be a full day of preliminary inquiry into 10 charges, all firearms related, under the Code . 3 . Following negotiations at the court room door, Crown and defence counsel agreed on the offences for which Milotte was willing to acknowledge criminal responsibility. A Presentence Report (“PSR”) was requested by the defence and sentencing was adjourned to await its preparation.

Circumstances of the Offences: 4 . On April 27, 2019, police received a telephone call from Milotte’s domestic partner of 18 years. Milotte had sent a text message to her with a picture of a handgun claiming it was his only friend. For good reason, she called police out of concern that Milotte was suicidal. 5 . Police attended Milotte’s hunt camp. They were aware that he was a former member of the military and familiar with various forms of weaponry. They asked him to walk out. He did so unarmed and turned himself over to police. 6 . Within the hunt camp, police found an unsafely stored handgun. 7 .

Fearful that Milotte may indeed be suicidal, police took Milotte to the hospital for a medical examination of his mental health status. 8 . Upon being seen by a doctor, Milotte was discharged. Presumably, the examining physician was satisfied that Milotte was not an imminent risk for self-harm. 9 . In the meantime, police executed a search warrant at Milotte’s residence and seized 59 weapons, mostly firearms safely stored, but amongst them, a switchblade. 10 . A number of the firearms were restricted, a few prohibited. All were operable. 11 .

Underneath Milotte’s bed in his home, police discovered a .22 caliber rifle in a case without a trigger lock, but there was no readily accessible ammunition to load this firearm. 12 . Milotte held certificates to lawfully possess almost all of his weapons; however, for a good number, a half dozen or so, he was not. 13 . Overall, Milotte was polite and cooperative in his dealings with police. Circumstances of the Offender: 14 . The PSR prepared for Milotte’s benefit was extremely positive in its tenor. 15 . Milotte reported to its author that he grew up in a loving family free of any forms of abuse.

He had fond memories of his childhood. 16 . At age 18, Milotte joined the Army reserves. For a few years, he served before changing careers at age 21 to become a natural gas construction worker. 17 . At present, he is employed by Enbridge Gas Distribution Inc. He has been with this company for the past 18 years. He currently holds the position of “Operations Supervisor”. He is described by his employer as positive and reliable. His work ethic is good. 18 . Over a 10 year period in the past, Milotte has also served as a volunteer firefighter. 19 . While in his mid-20s, he met his common law spouse.

Together they had two sons, now aged 11 and 9. 20 . Sometime in April 2019, Milotte’s common law spouse told him their relationship was over and she was moving out. She did not discuss custody of the children with him. She left with them and without disclosing their whereabouts to him. 21 . Shortly thereafter, Milotte came to the attention of police and was charged with the offences before the Court. 22 . Milotte did not deal well at the outset with the loss of his relationship and his lack of contact with his children. He began drinking heavily. He took time off work. He felt alone, depressed and lost. 23 .

Fortunately, his father intervened and assisted him. After a six month leave of absence, Milotte enjoyed a long period of sobriety. He subjected himself to biweekly urine testing to prove his abstinence from alcohol. He also completed a 16 hour long drug and alcohol education course offered through an employee assistance program. 24 . Milotte now limits his alcohol consumption to a couple of drinks on one of the weekend nights. 25 . Having retained a family law practitioner, Milotte now has a ‘week about’, shared parenting arrangement with his former common-law spouse.

By all accounts, the custodial agreement is working well in his children’s best interests. 26 . Milotte also attended six sessions with a social worker/therapist. His treatment focused on his separation and the associated struggles accompanying the changes in his life and their effects, amongst them, stress, anxiety and anger. 27 . Milotte has been in a relationship with his new common-law partner for the past year and a half. His new partner described it as a healthy relationship with open communication. She reported to the PSR’s author that he does not use drugs. He drinks minimally. Overall, he is doing well.

He is a hard worker and a good family man. 28 . Milotte’s father echoed many of the observations made by his new common-law partner. Mr. Milotte Sr. shared that his son took great pride in his collection of firearms. He did not believe his son would use a weapon to harm himself or anyone else. 29 . Not surprisingly, Milotte enjoys an active outdoor lifestyle involving hunting, fishing, snowmobiling, four wheeling and camping.

Crown’s Position on Sentence: 30 . The Crown seeks a suspended sentence and 18 months’ probation on appropriate conditions. 31 . By way of ancillary orders, the Crown requests that Milotte provide a sample of his DNA to the authorities pursuant to

section 487.051(2) of the Code . 32 . The Crown further asks for a weapons prohibition for a period of 5 years under

section 110 of the Code . 33 . The Crown has no difficulty with allowing Milotte a 90 day window within which to transfer any of the weapons which he legally possesses to a person with a valid possession acquisition licence. 34 . Lastly, the Crown requests a forfeiture and destruction order under

section 491 of the Code for those weapons which Milotte cannot lawfully own. Defence Position on Sentence : 35 . Defence counsel on behalf of Milotte seeks a conditional discharge and a period of probation. 36 . He points out that Milotte has a complete lack of any criminal antecedents. The nature of the offences Milotte committed were regulatory. 37 . He argues that Milotte is a man of fine character who may periodically wish to travel to the United States. A criminal record may hinder his ability to do so.

It is in the Milotte’s best interests to be granted a conditional discharge, he submits, nor would it be contrary to the public interest. 38 . Effectively, Milotte has already served a two-year weapons prohibition since the time of his arrest and the seizure of his vast arsenal. There is thus no additional need for a further weapons prohibition to be imposed under

section 110 of the Code . 39 . Defence counsel does not oppose a forfeiture order for those weapons which Milotte is not permitted to lawfully possess or own. Analysis : 40 . In arriving at a fit disposition for Milotte, I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code . 41 . Milotte’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances. 42 .

Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them. Denunciation and Deterrence: 43 . Crown counsel submits that deterrence and denunciation are the paramount sentencing principles to be applied when dealing with firearms related offences. 44 . In R. v. Kachuol, 2017 BCCA 292 , the British Columbia Court of Appeal stated: [25] In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society.

Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society’s condemnation and punish offenders. To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. Rehabilitation:

45 . In light of the steps taken by Milotte following his arrest to rehabilitate himself, defence counsel urges me to impose a sentence which assists Milotte in continuing on his self-restorative path. 46 . Milotte’s efforts to rebuild a life for himself without his longstanding partner and children as daily constants were nothing short of commendable. He took the time he needed away from work to reflect and refocus. He first eliminated, then curbed his alcohol consumption significantly. He found the inner strength to carry on with the support of his family and new partner. 47 .

The author of the PSR encapsulated perfectly the transformation Milotte experienced with the following, conclusory passage: [Milotte] did eventually come to realize that his drinking was maladaptive and problematic. [He] responded by accessing support from various therapists, his doctor, and he also had strong support from his family. [He] addressed his emotional health needs, which appear to have been situational in nature. [He] also made positive changes around his substance use habits. Family members contacted in preparation of this report feel that [he] is very stable now.

No concerns of any kind were identified. Promotion of a Sense of Responsibility and Acknowledgement of Harm: 48 . As is borne out by the PSR, Milotte is a gun collector. He accepts and is aware that he should not have had some of the firearms which he had in his possession. He acknowledged that there was no legal means of registering some of them. One in particular, which he inherited from his grandfather, could have been registered, but his grandfather did not do so. Upon his grandfather’s death, Milotte was precluded from legally possessing that weapon.

Nevertheless, it held great sentimental value for him. 49 . Milotte candidly admitted to the author of his PSR that he is upset by the fact that some of his firearms will imminently be destroyed. Reluctantly, he concedes that he is bound to comply with all federal and provincial legislation governing the ownership and possession of his firearms. Aggravating Circumstances: 50 . Upon review of the offences committed by Milotte, I find the following factors to be aggravating:

a) he purposely intended to cause fear and psychological distress to his former common law partner by threatening self-harm,

b) his conduct compelled law enforcement officers to mobilize and apprehend him as a person possibly bent on self-destruction, and

c) he created an obvious and appreciable risk through the careless storage of a firearm in his home even though ammunition to load it was not readily accessible. Mitigating Circumstances: 51 . I consider as mitigating that:

a) Milotte has no criminal record,

b) he was polite and co-operative with police at the time of his arrest,

c) he went to considerable lengths at rehabilitating himself post-arrest,

d) by all accounts, he appears to be a man of fine, upstanding character,

e) he has the support of his family, friends and employer, and

f) he has a history of employment demonstrating a willingness to provide for and better himself and his dependents. Parity: 52 .

Section 718.2 (

b) of the Code provides: “A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”

Crown’s Authorities: 53 . In light of the parity principle as codified above, the Crown has provided me with a number of authorities for my consideration. I have reviewed them all. Only a couple warrant mention. 54 . In oral argument, the Crown placed considerable reliance on the decision of Doulis J. in R. v. Manuge, 2016 BCPC 68 . At the time of sentencing, Mr. Manuge was 52 years of age. Previously, he had a 10 year career in the Canadian forces as an infantryman. He suffered from a host of physical, mental, emotional and psychological ailments. Due to an overpayment by Veterans Affairs, Mr.

Manuge had his benefits withheld for a period of two months. 55 . In an email to his brother and copied to Veterans Affairs’ employees, and to at least one politician, Mr. Manuge threatened to roll into Charlottetown and to hold 1100 Veterans Affairs’ staff hostage over a long weekend. He claimed that he would be the Emergency Response Team’s worst nightmare. 56 . The RCMP became involved and began an investigation of Mr. Manuge. They were aware that he had five restricted handguns registered in his name. Upon executing a search warrant at Mr.

Manuge’s residence, the only unlawful items they found were three overcapacity magazines for a nonrestricted rifle. The rifle itself was properly licensed, but it had attached to it one of the overcapacity magazines. 57 . Mr. Manuge had a sizable collection of firearms for recreational purposes. He was also a director of the Prince George Rod and Gun Club. 58 . The Crown sought a conditional sentence of six months duration to be followed by three years of probation, a mandatory firearms prohibition under

section 109 of the Code and a forfeiture order for the unsafely stored overcapacity magazines and for the rifle with one such magazine attached. 59 . Defence counsel on Mr. Manuge’s behalf submitted that a suspended sentence and two years’ probation would have been appropriate. 60 . Doulis J. pointed out at paras. 113 – 114 the following: I highly doubt that either a six-month CSO or a suspended sentence is likely to deter someone from acquiring a prohibited device who intends to use it for a criminal purpose. I agree wholeheartedly with the Crown that Mr. Manuge, like Mr.

Haus, belongs to a class of offenders that needs to be dealt with differently than criminals or members of organized crime. I do believe, however, that a criminal conviction, in itself, even one which does not involve a custodial sentence, would deter an otherwise law-abiding sportsman from acquiring a prohibited device. A criminal conviction is a significant deterrent to those without a criminal record. It stigmatizes the offender. It closes doors to employment opportunities and social advancement.

Moreover, a criminal conviction which is accompanied with onerous bail conditions, a lengthy probation order, a ten-year firearms prohibition, could be devastating to a law-abiding sportsman who enjoys shooting clay targets recreationally. 61 . His Honour went on to conclude at para. 120: For all the reasons set out above, I am of the view that in this case a suspended sentence can satisfy the sentencing principles of deterrence, rehabilitation, denunciation, and proportionality.

The offence under s. 92(2) also attracts a mandatory firearms prohibition under s. 109 for ten years and a forfeiture order under s. 491 of the Criminal Code . The DNA order under s. 478.051(3) (

b) is discretionary. 62 . I agree with the Crown that the facts in Manuge are somewhat close to the circumstances of the offences committed by Milotte. The delicts are of a regulatory nature. However, the glaring, distinguishing feature lies in the seriousness of the threat issued in Manuge . Milotte threatened harm only to himself. His crisis was situational. He found himself deserted by his common law spouse. She had taken his children away from him as well.

Thereafter, when he realized his threat of self-harm had come to the attention of the authorities, he surrendered unarmed and without incident as instructed by police. 63 . The Crown also referred me to R. v. Gouliaeff, 2012 ONCA 690 . The Crown argued that the case supported the rejection of an absolute discharge as a fitting disposition for the offence of careless storage of a firearm, especially where the offender has knowledge of the legal requirements for safe storage of weaponry.

On the facts as found by the jury, the Court of Appeal for Ontario, after reviewing the grounds for the sentence appeal, agreed. 64 . Interestingly, at paragraph 12, the Court of Appeal noted: The trial judge’s reasons for sentence reveal that he considered the appellant’s rehabilitative potential. The evidentiary record indicates that the appellant made some efforts to comply with the law regarding the proper storage of firearms and there appears to be little prospect of his reoffending.

However, the reasons suggest that the appellant’s rehabilitative prospects were treated as a neutral factor or “non-issue” – rather than as a mitigating factor – by the trial judge. With respect, this was an error. The appellant’s positive potential

for rehabilitation should have worked to his benefit on sentencing. 65. An offender’s prospects for rehabilitation, of course, must always be carefully considered and given due weight in tailoring aproportionate sentence. Defence Authorities: 66. The defence has commended to me for my review a number of authorities as well, two of which are noteworthy in these reasons. 67. In R. v. Babin, 2016 ONSC 2862, Ratushny J. had before her and a 44-year-old man with no criminal record. Mr. Babin wasarrested in a “John sweep” with a loaded prohibited handgun under his driver’s seat. Her Honour accepted Mr.

Babin’s explanation thathe acquired the gun for the purpose of taking his own life. 68. Ratushny J. turned her mind to the impact mental illness should have on the sentence to be imposed for Mr. Babin. She remarkedhow well he had done since his arrest. He had a new partner and stable employment. He was highly regarded in his job. He abided bystringent conditions of release. He spent five days in custody prior to being released on bail. His mental and emotional health haddramatically improved under medical supervision. He accepted responsibility for his offence. 69.

At paragraph 22, she wrote: It is for these reasons that rehabilitation serves, as stated in R. v. Ellis

(2013) ONCA 739 at para. 107, “to adjust the balance of thesentencing principles in favour of his rehabilitation and away from denunciation and deterrence.” 70. Her Honour went on to suspend the passing of sentence and to place Mr. Babin on a period of probation for three years. Undersection 109 of the Code, she imposed a 10 year firearms prohibition. She ordered Mr. Babin to provide a sample of his DNA. Lastly,under

section 491 of the Code, she made a weapons forfeiture order of the seized gun. 71. Defence counsel placed great emphasis during submissions as well on the decision of Fradsham J. in R. v. Calinesco, 2017 ABPC136. In that case, a 54-year-old offender pleaded guilty to:

a) using a weapon, to wit a loaded handgun, in a careless manner,

b) possessing a handgun for a purpose dangerous to the public peace, and

c) possessing a prohibited, high-capacity magazine without being a holder of a license for it. 72. On the day in question, Mr. Calinesco stood in the parking lot of his employer, Canada Post, holding a gun to his head. When helearned police were called, he placed the gun back in his car. Fradsham J. accepted that the offender had no intention of hurting anyonebut himself. 73. Following his arrest, police obtained a search warrant for his residence and seized a number of firearms and high-capacityammunition magazines. 74.

At the time the offences were committed, the offender had been suffering from depression following triple bypass surgery sometwo years earlier. Post-arrest he went to see a psychiatrist every one to two months. He was prescribed antidepressants. He was assessedto be a low risk to reoffend. 75. Mr. Calinesco accepted full responsibility for his offences. He exhibited insight into the trauma he could have caused to hiscoworkers. He was aware of the potential that bystanders could have been hurt. 76. Fradsham J. found specifically that the single most aggravating feature of the offence was Mr.

Calinesco’s decision to take afirearm and ammunition into public parking lot. As his Honour aptly characterized the situation, “the mere presence of the firearm andammunition coupled with any intent to use it must be considered to be deleterious to public safety”. 77. In deciding upon the appropriateness of a conditional discharge for the offences which Mr. Calinesco committed, Fradsham J.referred to the decision of Brown J. in R. v. Snobelen, 2008 O.J. No. 6021 (OCJ).

There, his Honour commented on the granting of adischarge as follows: 37 The first condition to meet for an accused in the granting of a discharge is that it be in the best interest of the accused. That has beendemonstrated to my satisfaction in this case in that it is not seriously contested that Mr. Snobelen travels for business and for charitablecauses abroad and I accept that the imposition of a conviction may have adverse effects on his ability to freely travel. 38 In considering whether Mr.

Snobelen should be given a conviction or a discharge for this offence I have considered the secondstatutory precondition of

Section 730, that a discharge be "not contrary to the public interest". 39 As was said by the Court of Appeal in Regina in Sanchez Pino, (1973), (ON CA), 11 C.C.C. (2d) 53, 22 at page 59:

It is common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, isnot contrary to the public interest. 40 As I have stated, these are serious offences, but that does not, in and of itself, preclude the judicious use of the discharge provisions.The usual starting point in considering the discharge provisions is Regina v. Fallofield, (BC CA), 13 C.C.C. (2d) 450.It is a 1973 decision of the British Columbia Court of Appeal. They set out certain considerations in the exercise of the discharge. I willnot reproduce them all, however certain of them bear on the case here today. The

section contemplates the commission of an offence. 41 There is nothing in the language that limits it to a technical or trivial violation. Generally, the first condition that it be in the bestinterest of the accused, would presuppose that the accused is a person of good character, without previous conviction.

That it is notnecessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him and that the entry of aconviction against him may have significant adverse repercussions. 42 In the context of the second condition; that is, not contrary to the public interest, in the deterrence of others, while it must be givendue weight, does not preclude the judicious use of the discharge provisions. 43 This

section should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in circumstances ofthe cases. In this particular case, we have the public humiliation of an upstanding and contributing member of the community,occasioned by his apprehension, arrest and the very public nature of these proceedings. Mr.

Snobelen was arrested, fingerprinted and theparticulars of this arrest were published in the press in a way that would be uncommon for a non-public figure. Knowledge of his foolishmistake will continue to follow him as part of the public record. 78. At para. 77 of Calinesco, Fradsham J. quoted from Sentencing, 7th ed., by Clayton Ruby et al. at para. 5.251: It is now widely accepted that general deterrence should be given very little, if any, weight in a case where an offender is suffering froma mental disorder because such an offender is not an appropriate medium for making an example of others . . . 79.

Upon consideration of all of the relevant principles of sentencing, Fradsham J. granted a conditional discharge in respect of thecareless use and possession of a handgun for dangerous purpose offences, but refused to impose a discharge and instead fined Mr.Calinesco while taking into account his eight days of presentence custody in respect of the possession of a prohibited device offence. 80. His Honour reasoned that it would be contrary to the public interest to grant a discharge where the offender’s behaviour wasrooted in his “personal convenience” rather than his desire to comply with firearms laws.

A Fit Sentence for Milotte in the Circumstances of the Offences He Committed and His Personal Circumstances: 81. Milotte is a first time offender. The offences he committed are serious, but they are more in the nature of regulatory than trulycriminal. 82. He is a person of good character. At the time he committed the offences, he was subject to extreme, situational distress.

Thereafterhowever, I see nothing in the attitude demonstrated by Milotte in the way he conducted himself with police, his physician, his counsellorand the author of his PSR to give me any concern whatsoever that he requires any form of specific deterrence. It is most certainly inMilotte’s best interests that I grant him a discharge. 83. The more troubling consideration is the issue of whether to grant him a discharge would be contrary to the public interest. I findthat it is not. The only justification for doing so would be out of concern for general deterrence and denunciation.

Given the highlyunique circumstances in which Milotte committed these offences at a time when he felt his world was imploding, and when he retired toan isolated, rural setting with thoughts of ending his life possibly fleeting through his head, I see no need to denounce Milotte’s conduct,nor to use it as a means to dissuade like-minded others from committing similar offences. 84. Prior to his wife leaving unannounced with his children, Milotte was a fine upstanding citizen of this country. At a moment ofweakness, his otherwise good sense and judgment disintegrated. He was despondent.

He entertained foolish thoughts. He wanted tohurt his former, common law partner deeply in a similar manner to what he perceived her to have hurt him. Even if he was not truly benton suicide, he created a calamity. 85. He has since paid a dear price for it. He was six months absent from his employ. He abandoned his abuse of alcohol with supportfrom his father and new partner. He stabilized. He took appropriate legal steps for the return to shared custody of his children. He wentback to work where he is highly regarded. In every aspect, he now has his life under control again.

In my view, he deserves a conditionaldischarge under these circumstances. Conclusion: 86. Upon consideration of all relevant principles of sentencing and their purpose, I shall grant Milotte a conditional discharge for thethree offences for which he has entered pleas of guilt before this Court. To do so is in his best interest. It is not contrary to the publicinterest.

87 . For the next year, Milotte shall be subject to a period of probation on the following conditions:

a) report to a probation officer today by telephone and thereafter as required,

b) reside at a residence approved by your probation officer and not elsewhere,

c) attend at any assessment, counselling and rehabilitation programs recommended to you by your probation officer for mental health and substance abuse,

d) sign any releases necessary to permit your probation officer to monitor your compliance and attendance at any assessment, counselling and rehabilitation programs recommended,

e) appear before the Court when required to do so,

f) notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or your probation officer of any change of employment or occupation,

g) abstain from owning, possessing or carrying a weapon, and

h) keep the peace and be of good behaviour. 88 . I have exercised my discretion not to make a DNA order. Milotte’s privacy interest outweighs any interest the administration of justice would have in making a record of his DNA profile. 89 . I will also decline to make a weapons prohibition under s. 109 of the Code . Mr. Milotte will be without weapon while on probation for the next year. That period of time is sufficient to ensure Milotte remains stable and on course. 90 .

I will, of course, sign a Forfeiture and Destruction Order in chambers once it has been presented to me after counsel agree to its specific form and content, as they have undertaken before me to do. 91 . Again, I wish to thank Crown and defence counsel for their helpful and thorough submissions. DATED: May 14, 2021 March, M.G., J.