R v Braun, 2023 ABCJ 232

In the Alberta Court of Justice Citation: R v Braun, 2023 ABCJ 232 Date: 20231107 Docket: 200506160P1 Registry: Lethbridge Between: His Majesty the King - and - Dylan Matthew Braun Sentencing Judgment of the Honourable Justice J.N.

LeGrandeur Nature of the Proceedings [ 1 ] Dylan Matthew Braun (Offender) has been found guilty of eight counts of transferring a restricted firearm knowing that he was not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament, contrary to s99(1) of the Criminal Code of Canada . [ 2 ] The Offender was also convicted of possession of property, to wit: a 2018 Dodge Ram truck of a value of more than $5,000 knowing that the property was obtained by or obtained directly or indirectly from the commission in Canada of an offence punishable by indictment contrary to s355(

a) of the Criminal Code of Canada . [ 3 ] He was further convicted of forgery contrary to s368(1)(

a) of the Criminal Code ; displaying a license plate on a vehicle that was improperly issued contrary to s53(1)(

b) of the Traffic Safety Act of Alberta and that on the 19 th day of May, 2020, did operate a motor vehicle on a highway in the Province of Alberta when the motor vehicle was uninsured contrary to s54(1) of the Traffic Safety Act of Alberta . Circumstances of the Offences

[ 4 ] Between the 16 th day of November 2018 and the 19 th day of May 2020 this Offender did purchase and sell to an unknown third party certain restricted weapons (handguns), knowing the purchaser was not lawfully entitled to acquire the said firearms. [ 5 ] In November of 2018, this Offender had purchased a Norinco 911-81 .45 calibre handgun for his personal use. In November of 2019, he purchased from a gun retailer in Calgary a Norinco NP29 9-millimeter firearm (handgun) and thereupon was approached by an unknown male who walked up to him in the parking lot of the gun retailer wanting to purchase guns.

He was strapped for money at the time for he and his family, a wife and young child, and then as he describes it, he stupidly agreed to the sale. He sold them the Norinco handgun he had purchased in 2018 and also the one that he had purchased that day in November of 2019. He did not purchase the Norinco in 2018 with the intent of selling it, but all the other items were ultimately purchased with the intent of selling the same to this individual, this unknown male, who had approached him. Over the course of the period of November 1 st , 2019, to May 20 th , 2020, he sold eight handguns to the said individual.

He was paid the cost of the guns plus something extra, usually $500 to $1,000. The guns were all purchased by the same individual who told him they could not be tracked back to him. The Offender did not know where the guns went after he sold them to this unknown male. He was aware of what was necessary to lawfully sell a gun and that the sales were unlawful. [ 6 ] The male provided him with a phone and would call him and tell him what gun he wanted. The Offender would then purchase the gun, transfer it to the male and be paid in cash. This always occurred in Calgary.

The male purchaser never gave his name to the Offender. [ 7 ] The last two guns he sold included a .22 pistol, and in payment he received the 2018 Dodge Ram truck that had been stolen. He knew it was stolen when he took possession of it. He had delivered the two guns to the unknown male about one week before he got the truck. [ 8 ] No further transactions occurred after that.

The unknown male took his phone back indicating there would be no further transactions. [ 9 ] He used a forged Bill of Sale which had the serial number for a different vehicle in it and used it to register the Dodge Ram in his name as a 2011 Dodge 1500. [ 10 ] The no insurance charge arose from the fact that the Dodge Ram truck he was operating on May 19, 2020, was stolen and therefore is deemed by law to be operated without the expressed or implied consent of the owner and there was therefore no insurance coverage and the Offender never produced evidence of insurance coverage in any event.

Circumstances of the Offender [ 11 ] This Offender was 31 years of age as at the time of his sentence hearing. He was age 26, turning 27, during the five-month period that these offences occurred during. [ 12 ] He has no criminal record. He grew up in circumstances where his parents had a tumultuous relationship finally separating in 2016. He has minimal contact with his parents, and they are not involved with his children. [ 13 ] This Offender met his fiancé/partner eight years ago and together they have two children, B, age four, and R, who was born in March of 2023. [ 14 ] Ms.

Nelson, his eldest sister with whom he has an ongoing good relationship, describes him, as does his partner, Paige Osbourn, as an amazing father and that his girls are everything to him. Ms. Nelson is amazed at his character in that regard because Mr. Braun had no role models with respect to parenting, while growing up. [ 15 ] It would appear that at this point, Mr. Braun and Ms. Osbourn are in a caring and stable relationship. Ms. Osbourn notes that over the past year or so Mr.

Braun has committed himself to working as much as he can in order to try and prepare the family financially for what may come. [ 16 ] The subject had been an apprentice millwright with two years completed but was let go after charged with these offences. He acquired another job with an oilfield company about two years ago and has been working from thirty-five to sixty hours per week. His employer is enthusiastic about his performance at work indicating he is an amazing employee and that customers specifically ask for him by name.

His employer indicated that he would be welcomed back to work should he choose to return if he receives a sentence of incarceration. Whether that is realistic given the Crown’s submission as to a fit sentence is entirely another question. [ 17 ] This Offender has struggled with money management and had built up a $15,000 debt while trying to do his apprenticeship. After his first child was born, the family fell further behind in their finances.

Family finances have become more stable over the past year; the Offender is working hard to put money away and he has paid down his debt to $8,000 and managed as of August of 2023 to have savings of $2,000. [ 18 ] This Offender is described as hard working, dependable, an amazing employee, caring and generous to a fault. Ms. Nelson believes that he does not discuss his own legal circumstances because he is deeply ashamed of his actions and feels that he has let everyone down. [ 19 ] He is currently being treated for depression given stress associated with his criminal circumstance and unknown future.

He has been prescribed medication but because of his mother’s addictions to her mental health medications he is fearful of taking them, worried about becoming addicted himself. [ 20 ] This Offender acknowledges that as a teenager he drank heavily but stopped because of the trauma associated with the effects

of alcohol as manifested through his father. At age 20 he started using cocaine but has not used, according to him, for the last six years. He periodically uses marihuana to help him sleep. [ 21 ] Over the timeframe of these offences and leading up to the same he essentially describes he and has financial strapped and candidly acknowledged that $500 to $1,000 for a gun when you have a young child and you are not making any money was “not bad” in the sense of money in his pocket for his family. That was not intended as a characterization of the offence.

This Offender has always been the sole source of income for his family who will have no source of income during any period that he is incarcerated and of course the longer the period of incarceration the greater the financial and other impacts upon the family. The Court was advised by Ms. Osbourn and legal counsel for Mr. Braun at the sentence hearing that her circumstance will require her to go on some form of social assistance in order to take care of her two daughters and herself.

Crown Sentencing Position [ 22 ] The Crown submits that a sentence encompassing all the criminal offences before the Court is seven-years incarceration. Crown asserts that denunciation and deterrence are the primary sentencing factors for consideration by the Court and that there is a high level of moral culpability exhibited by the Offender given his role as a “straw man”.

He used his ability to purchase restricted firearms to supply them, for a profit, over the course of five months to one individual, during which time he supplied eight restricted firearms, usually one at a time after he had been requested by the said individual to acquire a specific type of firearm.

Although the Crown sees this Offender’s use of his ability to acquire firearms and the planning that was involved by the ultimate purchaser which planning was put into play in part by this Offender and the fact that it was done for profit by this Offender all as aggravating factors for the Court’s consideration, it is this Court’s view that those factors are not independent of his “straw man” status, but indeed are individual aspects of the “straw man’s” persona.

The principle aggravating factor is that he operated as a “straw man” with respect to the eight firearms that he acquired and sold or delivered to this one individual. The aggravating factors of planning, profit, et cetera, are not added to the aggravating factor that he was a “straw man” but are rather subsumed in that consideration for sentencing purposes. [ 23 ] For purposes of context, this Offender did not come to this activity with any plan or intention of trying to acquire and sell firearms. The firearm he purchased in November 2018 was for himself and was not with any intent to sell it.

The sale of that gun and the other guns purchased over the course of the five-month period were sold and transferred to this individual purchaser who had approached this Offender. He was in increasing financial difficulty which regrettably shaped the corruption of his judgment to get involved in the first place, and more significantly to maintain his involvement. While he knew nothing about where the guns were actually going, he did know, or was at the very least wilfully blind to the fact that they were not going to anyone who could lawfully possess or acquire them.

His recruitment to buy guns for this unknown male for profit was, at least, at first, impulsive but ceased to be so more and more with each sale. His actions were very serious given that it involved restricted firearms and the fact that he knew what he was doing and continued to do it for the money it provided him.

His moral culpability is in these circumstances at the higher end of the scale, although certainly there are more serious examples with higher levels of moral culpability. [ 24 ] Madam Crown references the number of guns sold, the timeframe over which that occurred, that his actions were for profit and that he used his ability to purchase the guns to pass them on to an individual who had no lawful right to possess them. Again, these are not factors that exist independent of his “straw man” designation so to speak, they are rather the factors that describe a “straw man”.

They cannot compound the aggravating nature of him being a “straw man”. Simply put, they cannot be counted twice against him for sentencing purposes. [ 25 ] Madam Crown submits that these firearms were dangerous firearms. With respect all restricted firearms are dangerous that is why they are restricted. That is the nature of the offence; that they are restricted firearms is an element of the offence.

In the absence of specific evidence on the point I am not prepared to conclude that these firearms were any more dangerous than any other restricted firearm. [ 26 ] On the other side of the coin so to speak, the Crown does accept that Mr. Braun is an individual of previous good character with no criminal record, a good father who takes full responsibility for his actions and has support in the community.

The Crown accepts that given his prior good character and that he is not an individual who has led a criminal life that it would be difficult to call him a criminal. [ 27 ] With respect to the issue of remorse, the Crown accepts he has shown remorse but says it is tempered by the fact that he told the probation officer interviewing him that when this first happened he thought he was helping the guy who wanted to buy his gun.

However, part and parcel of that discussion, at least as the probation officer paraphrases it, was his immediate acknowledgement that he realized how dangerous his conduct was and the potential for terrible outcomes and that he exhibited remorse to the probation officer and takes full responsibility for his actions.

It is clear that he has insight as to the nature of his criminality and potential consequences thereof and I am satisfied that insight illustrates the authenticity of his stated remorse. [ 28 ] The Crown referred to a number of cases, in particular two Alberta cases involving multiple sales of firearms with the low-end sentence imposed being three and a half years, with mitigating factors ( R v Sarrasin, 2020 ABPC 258 ) and the high end ( R v Jacobs, 2022 ABPC 77 ), involving more guns, at eight years.

In Jacobs , of the fifteen guns trafficked, three were immediately recovered, four others were involved in criminal activity, one of which was used to shoot someone, who fortunately survived.

The other eight guns were unaccounted for. [ 29 ] Each of the cases cited by the Crown is unique as is to be expected and given the individual nature of sentencing they all came to different conclusions. [ 30 ] Considering the high end of the range as suggested by the Crown of eight years, given the nature of the offence and the moral culpability of the Offender, along with the recognition of this Offender being an individual of previous good character who exhibits some remorse, brought the sentence down in the Crown’s eyes to seven years.

Defence Sentencing Position [ 31 ] Defence counsel submits that the Offender is a young man of previous good character with no criminal record. Counsel states that he is remorseful and regrets and accepts his responsibility in this regard and has insight into the danger of the proliferation of firearms into our society. He is not a recidivist and is of no risk to commit similar or other serious offences going forward. Counsel submits that specific deterrence is not a factor that the sentence need address.

Counsel also points out that this Offender has a young family and that a seven-year sentence of incarceration is likely to harm the continuation of the family and certainly likely to create a separation between this Accused and his two young children that may permanently effect their relationship. [ 32 ] Counsel also points out that this Offender was cooperative with police, giving a full statement which acknowledged his responsibility and involvement, which certainly assisted in the prosecution of this Offender. [ 33 ] Counsel submits that all of these factors support a sentence at the lower end of the range as suggested by Crown counsel.

Multiple Offences [ 34 ] Given the connectiveness of all these offences and the time frame over which they were committed, the Crown notes that the sentences should be concurrent one to the other. [ 35 ] In this case, the Court has before it multiple offences. It is the Crown’s submission that the total sentence should be seven years for the multiple firearms offences and the possession of stolen property.

If the sentences are to be seen as concurrent then essentially the Court would be imposing a sentence of seven years for each of the offences and make them all concurrent that is all seven years in length even though no one offence would be worth that amount on its own, so to speak. [ 36 ] This Court does agree that in this instance the sentences for Counts 1 through 9 should be concurrent one to the other.

All of the firearms offences involved are virtually identical in nature; that is, contact with the Offender is made by an unknown male and a process or procedure initiated by the unknown male and agreed to by this Offender is entered into, that the Offender is contacted by telephone by the unknown male and instructed on what firearm is to be purchased, the firearm is purchased by the Offender, a meeting occurs between the Offender and the unknown male and the firearm is transferred and payment is made in cash.

The last two firearms were transferred not for cash but for a 2018 Dodge truck which was stolen and which is the subject of the 355(

a) conviction. Although the latter transaction resulted in a specific charge against this Offender i.e., possession of stolen vehicle, it is, in this Court’s view, so intricately connected to the criminal adventure or global transaction that it should be looked at concurrently for sentencing purposes in any event. In that regard, it is to be noted that all the other transfers resulted in this Offender receiving cash which left the Offender in possession of proceeds of crime i.e., illegally obtain cash.

In these circumstances the payment by way of the truck is not significantly different from the cash payments. [ 37 ] These multiple offences represent one continuous transaction of purchase and transfer pursuant to an arrangement between the unknown male and this Offender ( R v May , 2012 ABCA 213 at para 8 ( May )) and could be called as well, a single criminal adventure ( R v Hutchings , 2012 NLCA 2 at para 21 ( Hutchings ); R v Wozny , 2010 NBCA 115 at para 46 ). [ 38 ] Once the Court determines that the sentences should be concurrent one to the other such as the case where there are multiple counts for a single transaction, one approach is for the Court to consider what is the worst of the offences in the transaction and then go on to access what effect the other collateral or associated crimes have on the overall culpability of the Offender.

The other counts are then considered essentially as modifiers or adjectives to the main crime and thus deserving of concurrent sentences; May , at para 8 , Hutchings , at para 21 . [ 39 ] Essentially what the Court is doing in circumstances of concurrency is not unlike the situation when the Crown alleges through one count an offence over a range of time, for example, assault with evidence of recurring instances of assault arising during that period, for which the Court must make a single finding of guilt and impose a single sentence that takes into consideration all the uncharged offences ( R v Larche , 2006 SCC 56 at para 51 ).

Thus, although the sentences are concurrent to the predicate or index offence, there are no freebies because the individual offences are considered in the transactional sentencing. [ 40 ] Essentially what the Court is doing, when concurrent sentences are called for, is as expressed by the Alberta Court of Appeal in Alberta (Health Services) v Bhanji , 2017 ABCA 126 at para 44 ; “Concurrent sentences are often indicated under the principles of proportionality and restraint, resulting in an index sentence being imposed to represent the overall gravity of the single, global event and the degree of responsibility of the offender in it.” [ 41 ] Following that approach I will proceed to sentence for one of the firearms offences as an index offence representing the transaction or criminal adventure, having regard to gravity, moral culpability and the unique circumstance of the Offender and having regard to the fact that the offence involved a number of transactions involving firearms that increased the gravity of the offence and which recognize the moral culpability shaped by the Offender entering into the scheme whereby the Offender as “straw man” agreed to purchase and traffic firearms to the unknown male individual.

That sentence will represent a proportional sentence for the global event or transaction. [ 42 ] I will then assign to the other offences a proportional sentence without considering the aggravating factors of the transfer scheme or the number of purchase and transfers, both of which have been considered in the sentencing for the index offence which represents a single determination of guilt and a single sentence that already takes into account those circumstances.

These individual sentences will then be concurrent to the sentence for the index offence. [ 43 ] The question is what is a proportional sentence for this global transaction in which the moral culpability of the Offender is relatively high given his “straw man” activities and where the gravity of the offence is aggravated by the number of firearms that were

purchased and transferred. What is the sentence that fits the offence and the Offender having regard to the gravity of the offence, themoral culpability of the Offender, and the unique personal circumstances of the Offender? Sentencing Principles [44] The fundamental principle of sentencing set out in the Criminal Code is proportionality; a sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. Indeed, this is the only mandatory principle of sentencing. The other principles as set out in s718.2 are not mandatory and are assigned no respective weight.

It is mandatory however, that eachsentence must meet the fundamental and overarching sentencing principle of proportionality. [45] As stated in the recent decision of the Supreme Court of Canada in R v Parranto, 2021 SCC 46 (Parranto), per Brown andMartin JJ at para 10; 10 The goal in every case is a fair, fit and principled sanction. Proportionality is the organizing principle in reaching this goal. Unlike other principles of sentencing set out in the Criminal Code, proportionality stands alone following the heading “FundamentalPrinciple” (s718.1).

Accordingly, “[a]ll sentencing starts with the principle that sentences must be proportionate to the gravity of theoffence and the degree of responsibility of the offender” (R v Friesen, 2020 SCC 9, at para. 30). ... [46] At paragraph 12 the learned justices add to this proportionality discussion the following commentary; 12 Individualization is central to the proportionality assessment. Whereas the gravity of a particular offence may be relativelyconstant, each offence is “committed in unique circumstances by an offender with a unique profile” (para 58).

This is whyproportionality sometimes demands a sentence that has never been imposed in the past for a similar offence. The question is alwayswhether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of eachcase (para 58). [47] The purpose of sentencing as set out in the Criminal Code is to impose “just sanctions”. A “just sanction” is one that isdeserved. A fit sentence in that context is one that is commensurate with the gravity of the offence and the moral blameworthiness of theoffender (R v CAM, 1996 SCC 230 (CAM)).

In R v Proulx, 2000 SCC 5 at para 82 (Proulx), Chief Justice Lamer repeated that principlestating proportionality requires an examination of the specific circumstances of both the offender and the offence so that the“punishment fits the crime”. [48] Disparate sentences for similar offences are a natural consequence of the fact that a sentence must fit not only the offence, butalso recognize the unique circumstances of the offender as well. There is no such thing as a uniform sentence for particular crimes;Parranto, at para 16.

Rowe J in Parranto explains as other Supreme Court decisions have done that, “proportionality is the “sine quanon of a just sanction” (Parranto, at para 111). [49] In paras 113 and 114, again speaking about proportionality, he states; 113 In order to produce proportionate sentences, sentencing must be a “highly individualized exercise” (Lacasse, at para. 58; see alsoR. v. Boudreault, 2018 SCC 58, [2018] 3 SCR 599, at para 58). Sentencing judges must decide a profoundly contextual issue: “...

Forthis offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the CriminalCode?” (R. v. Gladue, (SCC), [1999] 1 SCR 688, at para. 80 (emphasis in original)). They must determine whichobjectives of sentencing merit greater weight and evaluate the importance of mitigating or aggravating factors, to best reflect thecircumstances of each case (Nasogaluak, at para. 43; R v. Lyons, (SCC), [1987] 2 SCR 309, R. v.

M (CA), (SCC), [1996] 1 SCR 500, at para 92; R v Hamilton (2004) (ON CA), 72 O.R. (3d) 1 (C.A.)). 114 Individualization flows from proportionality: a sentence that is not tailored to the specific circumstances of both the offender andthe offence will not be proportional to the gravity of the offence and the degree of responsibility of the offender (R v Proulx, 2000 SCC5, [2000] 1 SCR 61, at para 82). Simply stated, [TRANSLATION] “[a] proportional sentence is thus an individualized sentence (J.Desrosiers and H.

Parent, “Principles” in JurisClasseur Quèbec – Collection droit pènal – Droit pènal gènèral (loose-leaf), by M.-P.Robert and S. Roy, ecs., fasc, 20, at para 17). [50] At p 144 again speaking about proportionality Justice Rowe states; ... Rather, it is achieved in each case through individualized sentencing that takes into account the “specific circumstances of both theoffender and the offence so that the ‘punishment’ fits the crime” Proulx, at para 82. [51] The Court, when conducting an individualized analysis is expected to account for other relevant sentencing objectives,including rehabilitation and restraint.

Indeed, sentencing Judges have the discretion over which objectives to prioritize (Nasogaluak,2010 SCC 6 at para 43 (Nasogaluak); Lacasse, at para 54), and may choose to weigh rehabilitation and other objectives more heavilythan the “built-in” objectives like denunciation and deterrence; Parranto, at para 45. [52] The principle of restraint is of particular importance when incarceration is a potential disposition. That principles’ importanceis brought to light by ss718.2(

d) and (e): (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [53] The principle of restraint as it is captured by the 1996 Criminal Code amendments codifying sentencing principles isexplained by Professor Allan Manson in his text The Law of Sentencing, (Toronto: Irwin law, 2001) at 95:

Restraint means that prison is a sanction of last resort. ...

Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction. [footnotes omitted] [ 54 ] In Nasogaluak , at para 43 , LeBel J commented as follows with respect to the interplay between sentencing objectives in proportionality discussion: No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.

The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. [ 55 ] Again, in Lacasse , Gascon J, in discussing the issue of general deterrence and prison states at para 132: I would also qualify my colleague’s statement that the courts have “very few options other than imprisonment” (para 6) for meeting the objectives of general or specific deterrence and denunciation in cases in which they must be emphasized.

In my view, the court should not automatically assume that imprisonment is always the preferred sanction for the purposes of meeting these objectives. To do so would be contrary to other sentencing principles. Rather, a court must consider “all available sanctions, other than imprisonment,” that are reasonable in the circumstances: s718.2(

e) Cr c : Gladue , at para 36 . [ 56 ] At paragraph 133 he goes on to state: … A court that emphasizes general deterrence must therefore always be mindful of both the principle of restraint and that of proportionality… [ 57 ] At paragraph 134 he goes on to state: …the objective of general and even specific deterrence does not relate exclusively to the severity of a sentence considered in the abstract…Deterrence can work through conditions tailored to fit the offender or the circumstances of the offender, as the … Court noted in Proulx : … [ 58 ] In R v Chowdhury , 2019 ABCA 205 ( Chowdhury ), the Alberta Court of Appeal, in paragraphs 13 and 14, discuss the objectives of deterrence and denunciation in the proportionality analysis in a similar vein to the statements of Gascon J above, stating; [13] Objectives do not govern the sentence.

Objectives provide guidance, particularly as to ordinal proportionality ( Arcand at para 50), assist in identifying a starting point or range and help define a framework for the sentence, but they do not compel a result. It is an error to assume that a certain sentence necessarily follows from the identification of the primary objectives in any particular case. It is over-simplification to assume that the objectives of denunciation and deterrence are only served by severity; conversely, that the objective of rehabilitation is only served by lenience. [14] The key principle in sentencing is proportionality.

A sentence must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportional sentence may be severe, or it may be lenient. If a disposition is plainly lacking in proportionality in either direction, that discrepancy cannot be cured or justified by reliance on the putative demands of an objective. [ 59 ] Each offence is committed in unique circumstances by an offender with unique profile, Parranto , para 12 .

Whereas the gravity of a particular offence may be relatively constant, Parranto , para 12 , that is why proportionality sometimes demands a sentence that has never been imposed in the past. [ 60 ] The Court has the obligation to consider all the relevant factors and circumstances including the status and life circumstances of the person standing before them. As Parranto at paragraph 44 states, “These factors and circumstances may well justify significant downward or upward adjustment in the sentence imposed.” Judges are expected to account for sentencing objectives other than denunciation and deterrence.

Discussion and Analysis [ 61 ] Madam Crown presented range guidance for her proposed seven-year sentence for this Offender and as noted earlier herein referenced cases that were as low as three and a half years and as high as nine years, all dealing with multiple sales of firearms. [ 62 ] Some of these cases reference sentences of less than three and a half years including conditional sentence orders, R v Bajwa , 2020 ONSC 185 , two years less a day CSO; R v De Vos , 2018 ONSC 6813 , eighteen months incarceration; R v Sauve , 2017 ONSC 7375 , nine months CSO.

At the other end of the range, R v Green , 2015 ONSC 6290 ; eight years custody and R v Westchester , 2019 ONSC 2591 , eight years custody. The latter two involved more guns, twenty-three and forty-three respectively. In the middle portion of the range, so to speak, R v Hewitt , 2018 ONCA 561 , the Ontario Court of Appeal upheld a three-year sentence for trafficking nine non- restricted long guns.

In R v Bishop , 2021 ONSC 4545 , the Court imposed a four-year sentence for trafficking five restricted handguns, a rifle, and ammunition, and in R v Sarrasin where the Court imposed a three and a half year sentence for trafficking seven handguns to the same individual between February 22, 2016 and November 16, 2016. [ 63 ] There is a broad range of sentences imposed in cases involving the knowing transfer of firearms. Some of these cases place much weight on the gravity of the offence emphasizing that guns are a threat to public safety and a strong message must be sent to society.

In such cases, the number of guns sold and whether anyone is injured as a result of the trafficking seem to outweigh other proportionality considerations including restraint and rehabilitation. [ 64 ] Sentencing is an individual process and hence we understand that disparities will arise. There is no such thing as a uniform sentence for a particular crime, Parranto , at para 16 . Sentencing ranges generally reflect the minimum and maximum sentences imposed

by trial Judges in the past and provide structure and guidance but nonetheless, leave the trial Judge room to consider and weigh mitigating and aggravating factors and arrive at a proportional sentence. The Court is obliged to consider the unique circumstances of the case and the unique profile of the offender. That proportionality consideration sometimes demands a sentence that has not been imposed before for a similar offender, although sentence ranges help to locate proportionality assessments, the range does not govern every case.

Individualized sentencing process asks the question, for this offence, committed by this offender, harming this victim, in this community, what is a proportional sentence? [ 65 ] In this case, as noted aforesaid, this Court has reached the conclusion that the sentences for Counts 1 through 9 should be concurrent given the “single transaction” nature of the same, which means that the Court must impose a sentence for the offence of trafficking in firearms taking into account all the offences that make up part of the overall transaction which other offences essentially become aggravating factors in the sentence imposed for the index or predicate offence which is required to be a sentence that reflects the culpability of the Offender for the entire transaction (selling of nine firearms to unknown male in capacity of a “straw man” over the course of five months, for profit). [ 66 ] The sentence represents the overall gravity of the single global event or transaction and the degree of responsibility of the Offender in it; Bhanji , at para 44 .

In this matter the predicate offence of trafficking in a restricted firearm is a serious offence as evidenced by Parliaments’ direction that the maximum sentence is ten years incarceration. This recognizes the grave concern of Canadian society about the proliferation of firearms into the hands of individuals for criminal or other illegal purposes. [ 67 ] The Crown asserts in terms of sentencing range that there are cases of three and one-half years at the low end, Sarrasin , and eight years at the high end, Jacobs .

Given the gravity of the offences of the transaction and the moral culpability of the Offender and having regard to aggravating and mitigating facts the Crown submits that a sentence of seven years is appropriate. [ 68 ] With respect, I am of the view that such a sentence is too severe in all the circumstances.

Emphasizing deterrence for the public good without appropriate consideration of the other half of the proportionality assessment fails to properly consider the principle of restraint as is required when considering incarcerative sentences and the unique circumstances of the individual before the Court. [ 69 ] Although the gravity of the offence is a fundamental consideration, it is not determinative but must be balanced in light of the offender and any background factors that may bear on the culpability of the offender and shed light on his or her level of moral blameworthiness, R v Anderson , 2014 SCC 41 at para 21 .

The offender’s unique profile must be considered in the proportionality assessment; Parranto , at para 12 . The sentence must be tailored to both the specific circumstances of both the offender and the offence in order to be proportional. A proportional sentence is an individualized sentence; Parranto , at para 114 . It must be remembered that although a Court in pursuit of the objective of general deterrence may impose a harsher sentence in order to send a message with a view to deterring others, the offender must still deserve that sentence.

A sentence that imposes undo emphasis on the circumstances of the offence and the objectives of denunciation and deterrence and has failed to individualize the sentence and consider the relevant mitigating factors has done nothing but punish the crime. [ 70 ] The gravity of the offence and the moral blameworthiness of the offender are two separate factors and the principal of proportionality requires that full consideration be given to each of them.

The gravity relates to the harm caused by the offender to the victim as well as to society and its values, moral culpability relates to the degree of responsibility of the offender, but also includes other factors affecting culpability such as the offender’s personal circumstances, mental capacity or motive for committing the crime; Nasogaluak , at para 42 . [ 71 ] Although not binding, a sentencing range may give context to a sentencing consideration in the sense of offering a Judge a place to begin the process. [ 72 ] The range of sentence for trafficking in firearms is very broad, but having regard to the Crown’s suggestion of a low end of three and a half years and a high end of eight years the Crown’s proposed sentence in this regard using that range is double that of the low end in Sarrasin even though the offences involved the sale of multiple restricted firearms which occurred over a longer period of time than in the case before the Court, three of which firearms were later discovered by two different police services, two guns in Calgary and one in Toronto, all of which were sold for profit and were trafficked pursuant to a “straw man” scheme.

The gravity of the offences was essentially the same as before this Court and the moral culpability of the offender given the “straw man” persona was essentially the same as the moral culpability of the Offender before this Court. It is to be noted as well in Sarrasin that he had initiated the sale of the firearms, whereas in the present case Mr. Braun had not. [ 73 ] Although there were some differences in the unique circumstances of the two offenders, most specifically in Sarrasin , he pled guilty, where as Mr.

Braun did not, although he was cooperative with police and gave them a fulsome statement that certainly made their investigation more complete and provided them with a much stronger case for prosecution. In Sarrasin , the offender had Gladue factors for consideration as well, but it is difficult to know how that impacted the Court of Appeal’s decision of three and one-half years incarceration.

Both offenders are young men, and in Sarrasin he had stopped the trafficking on his own, whereas in this case, the activity ceased when the unknown purchaser essentially instructed that there would be no more purchases. [ 74 ] Both offenders in Sarrasin and the present case embarked on their respective journeys as a result of financial difficulties, Mr. Braun in particular, to offset financial hardship with respect to caring for his wife and one young child at the time.

Although the Court of Appeal did increase the sentence I imposed in Sarrasin from twenty-seven months to forty-two months, it is clear that the principle of restraint was a continuing consideration in that regard, albeit less than that exercised by myself as the sentencing Judge at trial. [ 75 ] Another case cited by the Crown with similar circumstances both with respect to the offence and the offender in this case at the low end of the purported range presented by the Crown is R v Bishop which involved a 42-year-old man with no criminal record who pled guilty to two counts of transferring of firearm contrary to s99(1) of the Criminal Code .

He had purchased two handguns and ammunition using his possession and acquisition licence to do so and sold them to another male person for $2,500 who could not lawfully possess or acquire such firearms himself. He then purchased four more pistols for the same person (“straw man” circumstance) but he was arrested before the guns could be turned over to that individual. The two handguns transferred initially were never recovered.

[76] The Court held that the degree of planning and the use of his lawful authority to buy the guns (“straw man”) heightened hismoral culpability. [77] The Crown suggested the range was from three to nine years, the Court concluded that a fit sentence would be longer thanthree years but shorter than eight years. Considering that the offender was relatively young, 42 years of age, that he was remorseful andthat he feels real shame, had no criminal record and that such an offence was out of character for this individual, the Court imposed asentence of four years.

The Court concluded that he had strong rehabilitative prospects and was not likely to commit a similar offence.Although the Court recognized the impact the sentence could have on the family of the accused despite the apparent mitigating naturethereof he would not reduce the sentence to anything less than four years. [78] In my view, the level of moral culpability and the gravity of the offence in the case before this Court is similar to the twocases described aforesaid; multiple firearms were purchased by use of the offender’s license to do so, sold to another individual whocannot either purchase or possess such firearms, the sales were for a profit, in Sarrasin and Braun, both offender’s conduct was to someextent precipitated by the need for money, in particular with respect to Mr.

Braun to support he and his wife and at that point, only child.These sales all occurred ultimately as part of a “straw man” scheme. As noted aforesaid, Braun, unlike Sarrasin, did not initiate thescheme, he was approached by a third party to purchase guns, he was not looking initially to sell guns and nor is Braun like Bishop whobought the guns for an individual nicknamed Boss Man who could not purchase them for himself. [79] On the other side of the proportionality assessment, none of the offenders had criminal records, and the offences were out ofcharacter.

In Sarrasin and Bishop the offenders pled guilty, and neither of them represented a risk of committing further offences sospecific deterrence was not a significant factor for consideration in sentencing. In this matter, this Offender was a young man at the timeof committing the offence, 27 years of age with no criminal record, and he does not represent, in this Court’s view, a risk to reoffend; hehas insight into the seriousness of the offences and is remorseful and I find ashamed of his actions in this regard. He of course, has neverbeen incarcerated at any point in his life.

He was cooperative with the police in giving his statement where he ended up baring all to thepolice even though he did not plead guilty. That of course, has nothing to do with the issue of remorse or his acknowledgment that he hadcommitted the offences.

His cooperation however certainly made the Crown case significantly stronger and easier to prosecute. [80] This Court does not reject the position that use of his lawful authority to obtain the guns in the first place may add to the levelof his moral culpability, although on the other hand it seems to me that the acquisition or possession of restricted firearms for an illegalpurpose, that is trafficking, is an essential element of the offence and does not speak to aggravation.

Getting the guns legally and thenselling them is no more aggravating than getting the guns illegally and then selling them. [81] In any event, considering the use of his license to acquire the guns as an aggravating factor does not mean that his otherwisegood character is not deserved of consideration. That he is not a risk to recidivate, that this offence is out of character for him, that he isremorseful, are all valid considerations in the sentencing analysis in this case. [82] This Offender is youthful and has never been incarcerated before.

In such circumstances the principle of restraint demandsthat any sentence imposed be the least restrictive of liberty that can be given in the circumstances. For first offenders the principles ofindividual deterrence and rehabilitation are paramount. Even if incarceration is appropriate, a first sentence of imprisonment should be asshort as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence, R vPriest, (ON CA), [1996] OJ No 3369 at 8.

A sentence of incarceration may be demanded for a first offence as is thecase in this instance, but it should be guided by restraint, not just denunciation and deterrence; an overemphasis on those objectives tendsto undermine the individualization of the sentence in the proportionality analysis and therefore can result in a disproportionate sentencegiven that the individualized analysis requires the Court to account for other sentencing objectives including rehabilitation and restraint(Parranto, at para 45).

In R v Okimaw, 2016 ABCA 246 at para 90 the Court summed up the principle as follows: … even where denunciation and deterrence are crucial considerations, those sentencing objectives “cannot be allowed to obliterate andrender nugatory or impotent other relevant sentencing objectives.

Instead, those objectives must be carefully, and mercifully, balancedwith the sentencing objectives of restraint and rehabilitation… [83] In this case, there is another factor that speaks to restraint and a sentence at the lower end of the range suggested by theCrown over and above the considerations mentioned aforesaid, particularly that this first time offender, a young man of previous goodstanding with other factors present as described aforesaid, also has a very young family, two daughters aged four and less than one year,and a partner who would suffer significantly from such a severe sentence of incarceration as submitted by the Crown.

Indeed, despite hisefforts to try and attain some financial stability in light of his likely incarceration, it appears on the information presented to this Courtthat his family will have to go on financial assistance to survive, and more importantly, it goes, I believe without saying, that the longerthe sentence that is imposed, the greater the likelihood of disintegration of the family, hence the greater the potential for a permanentseparation between he and the family.

In most incarcerative sentences there are likely to be collateral effect on the offender’s family.Such a circumstance is of course not an excuse and will not in all circumstances justify a more lenient sentence. Each case must belooked at individually. In this case this Offender’s circumstances as described justify a restrained sentence. In the context of humanaffairs it is not speculative to conclude that a sentence of seven years as suggested by the Crown would be destructive of this family andtheir relationship, and would impact these children’s lives profoundly going forward.

That potential dissipates as the sentence becomeslesser but it is nonetheless a constant factor for consideration once the issue of penitentiary time becomes clear. Over and above that fact,the longer the sentence the greater the likelihood the accused comes out worse than when he went in. These things, consistent with theadmonition of the Criminal Code, call for restraint in imposition of incarcerative sentences.

It is possible that even with a sentence at thelow end of the range suggested by the Crown that the family could disintegrate, but certainly that possibility changes to a likelihood themore severe the sentence becomes. [84] The Court is entitled to consider potential disintegration of the family and the prejudice to the children in the sentencingconsideration in the context of the impact on the children and the family and the maintenance of the offender’s rehabilitation; Geraldes vR [1965], 46 CR 365 (QCCA).

The societal loss of a well established and happy family group contributing commendably to the socialstructure which might be destroyed as a result of a severe sentence is a factor that may be considered on a compassionate basis onsentencing; R v Dochniak, (1980) 1980 ABCA 18 , AJ No 150, (CA); followed by Inglis J in R v McNeil, 2019 ABQB 453 at

para 26. [85] It is my conclusion that a sentence of forty months is a proportional sentence that addresses denunciation and deterrence aswell as restraint, rehabilitation and compassion as demanded by the unique circumstances of this Offender. Although the objectives ofdenunciation and deterrence are of principle importance, that does not mean that they override the individual aspects of sentencing. Tooveremphasize them would lead to a disproportional sentence.

A sentence need not be severe in order to denounce or deter (Chowdhury).The issue is what is a proportional sentence for this Offender, for this offence, or the harm to society in this community. The sentenceimposed in this case is not directed at more serious criminals with greater culpability and none of the personal attributes of this Offender,it is directed at deterring individuals similar to this Offender. A sentence of forty months for an offender of prior good character, nocriminal background and the other individual circumstances presented by this Offender will clearly deter other similar offenders.

It alsoserves to denounce to all the seriousness of the circumstances of the crimes. The deterrent nature of the sentence must be valued relativeto the public that can be impacted by it.

Although it is desirous that every sentence will deter any member of the public from committingof similar offences, this Offender is not sentenced as a more serious offender simply to achieve that end; that would be disproportionate. [86] That is not to say that a forty-month sentence for this Offender is these circumstances will only deter offenders similar to Mr.Braun, a more serious offender will recognize that if this individual, Braun, got forty months for this offence given all his uniquecircumstances and previous good character they would clearly understand that they could only expect a higher sentence.

It is easy to saythat the common good (no illegal guns in society) will always be served by harsher rather than less harsh sentences, but that would be tosentence only for the common good and would not be an individualized sentence which would mean the sentence is not proportional. [87] It is to be noted as Chief Justice Bayda said in R v Gilchrist (SK CA), [1990], 83 Sask R 234 (CA)at 2 that; … it is more the fact of imprisonment than the length of the term (given a certain threshold length) that deters.

That holds true both fordeterring the accused and any other individual who finds himself in circumstances similar to that of the accused. … [88] Having regard to the process of sentencing described earlier in this judgment, I select Count #8, the last firearms offence as theindex or predicate offence for sentencing purposes and impose a sentence for that offence, recognizing all the other offences in thecontinuing transaction or event.

This sentence represents a sentence for the entire transaction recognizing the aggravating factors of themultiplicity of the offences and the “straw man” scheme that animated each of the other instances of the offence of trafficking. [89] With regard to the other seven firearms offences, the sentence imposed for each shall be concurrent to the forty monthsimposed with respect to Count 8.

The sentence for each of these offences does not recognize the aggravating factors of the “straw man”persona that was part of the sentencing consideration for Count #8 with respect to moral culpability and the gravity of the offence, thatresulted in the sentence of forty months.

These factors are all recognized in the forty months’ sentence for the index offence. [90] In my view, a fit sentence for each of the other seven offences looked at individually without consideration of the aggravatingfactors of the “straw man” persona that were part of the sentencing consideration for Count #8 that resulted in a sentence of fortymonths, is fifteen months concurrent to each other and the forty-month sentence for Count #8. The fifteen months is predicated upon theconclusion described by Justice E.

Deluzio in R v Roberts, 2019 ONCJ 22 at para 34, wherein he states; [34] A review of the volumes of case law provided to me by Crown and Defence counsel reveals that offenders who are convicted ofweapons trafficking and who have prior criminal records, or connections to gang activity, organized crime or a drug subculture, usuallyreceive sentences of over two years. Sentences of less than two years, most often in the 12 to 18 month range, have been imposed incases involving a single weapons trafficking transaction, by an accused with no prior record: see R v Shobway, [2015] O.J.

No. 4424 (OntCJ), and R v Trepanier, [2016] N.B.J. No. 88 (N.B.P.C.). [91] Individually these offences for sentencing purposes would involve a single weapons trafficking by an accused with noprevious record. Count 9: Possession of Stolen Property [92] With respect to this Offender’s conviction for possession of stolen property as alleged in Count #9, a proportional sentence forsuch an offence on its own without considering the “straw man” factor which is part of the sentencing for Count #8, given a first offence,and previous good character, is six months incarceration.

As noted aforesaid, this offence was part of the overall transaction for which hereceived a sentence of forty months so the six months should be concurrent to the other sentences. Count 12: No Insurance [93] With respect to the no insurance charge Count #12, I impose a fine of $2,500 and a victim fine surcharge of $500 with forty-five days in default. Default time is concurrent to the other sentences.

Count 10: Forgery [94] With respect to Count #10, the forgery charge with respect to the purported Bill of Sale for the Dodge vehicle which was usedto register the Dodge vehicle, I impose a fine of $1,000 with a victim fine surcharge of $200, in default nine days, which shall beconcurrent to the other offences. Count #11: Display of Unlawful License Plate

[ 95 ] For the offence of displaying on a motor vehicle a license plate that was improperly issued, in conjunction with the forged Bill of Sale and unlawful registration of the vehicle, I impose a fine of $500, a victim fine surcharge of $100, five days in default. Again, default time will be concurrent to all other offences. Victim Fine Surcharge [ 96 ] There will be no victim fine surcharge with respect to any of the Criminal Code convictions. The imposition of the same would cause undue hardship. Heard on the 2 nd , 3 rd and 13 th day of June, 2023, and the 25 th day of August, 2023.

Dated at the City of Lethbridge, Alberta this 7 th day of November, 2023. J.N. LeGrandeur A Justice of the Alberta Court of Justice Appearances: H. Morris for the Crown T. Hembroff for the Accused