R. v. Mercer, 2019 NLSC 230

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Mercer , 2019 NLSC 230 Date : December 18 , 2019 Docket : 201701G3224 Her Majesty The Queen v. Brenda Mercer Before: Justice Valerie L. Marshall Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 12, 2019

Summary: The Offender was convicted of pointing a firearm and uttering threats. She was sentenced to a conditional sentence of six months, to be served in the community, followed by probation for a period of twelve months. Appearances: Nicole Hurley Appearing on behalf of the Crown Karen Rehner Appearing on behalf of the Offender

Authorities Cited: CASES CONSIDERED: R. v. Mercer, 2018 NLSC 119; R. v. Cowan (2016), 380 Nfld. & P.E.I.R. 167 (Nfld. Prov. Ct.); R. v. Crocker(1991), (NL CA), 93 Nfld. & P.E.I.R. 222 (Nfld. C. A.); R. v. M. T., 2018 NLSC 195; R. v. Riggs, 2016 NLTD(G)214; R. v. Hunt, 2007 NLTD 204; R. v. Lagace, 2016 ABPC 102; R. v. Hickey, 2010 NLTD 49; R. v. Fernandes, 2015 ONCJ 669; R. v.Dumont (2001), (ON CA), 141 O.A.C. 324 (Ont. C.A.); R. v. Lightfoot (1998), (NS SC), 169N.S.R. (2d) 125 (N.S.S.C.); R. v. Middleton, [2006] O.J. No. 5776; R. v. Middleton, 2009 SCC 21; R. v. Kerrivan, 2004 NLSC(TD) 112;R. v. A. E.

S., 2018 BCCA 478; R. v. Bruce (1997), 151 Nfld. & P.E.I.R. 315 (Nfld. T.D.). STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985 c. C-46. REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] This is the sentencing decision following Brenda Mercer’s convictions for two offences: pointing a firearm, contrary to section87 of the Criminal Code of Canada, R.S.C. 1985 c. C-46 (the “Code”); and uttering threats, contrary to

section 264.1 of the Code. BACKGROUND [2] On November 4, 2016, Brenda Mercer (the “Offender”) was initially charged with eight offences following a police complaintfiled by her son, Gerald Mercer, regarding an incident which occurred on November 3, 2016. Gerald Mercer alleged that his motherthreatened him with a rifle on that day.

The eight offences charged were as follows: using a firearm in the commission of an offence,contrary to section 85(1) of the Code; careless use of a firearm, contrary to section 86(1) of the Code; pointing a firearm, contrary tosection 87(1) of the Code; possession of a weapon for a dangerous purpose, contrary to section 88(1) the Code; unauthorized possessionof a firearm, contrary to section 91(1) of the Code; possession of a firearm knowing its possession was unauthorized, contrary to section92(1) of the Code; uttering threats to cause death or bodily harm, contrary to

section 264.1(1)(

a) of the Code; and assault with a weapon,contrary to

section 267(

a) of the Code. [3] Ms. Mercer elected trial by judge and jury. A preliminary inquiry was held. She was arraigned on October 2, 2017; and sheentered a plea of not guilty to all charges. [4] A pre-trial application was subsequently heard in April of 2018, and a decision was filed on May 28, 2018, being R. v. Mercer,2018 NLSC 119. Ms. Mercer’s jury trial was scheduled to commence on September 11, 2018; however, due to serious health issuesarising with Ms. Mercer, the jury trial was postponed to May 21, 2019. On May 21, 2019, Ms.

Mercer re-elected to a judge alone trial,and the jury panel was excused. [5] Ultimately, on May 27, 2019 an agreed statement of facts was entered; and Ms. Mercer was found guilty of Counts 3 and 7 ofthe indictment. The Crown withdrew all other charges. [6] Ms. Mercer has now been convicted of uttering threats, and pointing a firearm.

The firearms offence was Count 3 in theindictment, and was described in the indictment, as follows: THAT on or about the 3rd day of November, 2016, at or near Paradise, Newfoundland and Labrador, did without lawful excusepoint a firearm at Gerald Mercer, whether the firearm was loaded or unloaded, thereby committing an offence contrary toSection 87(1)-87(2) of the Criminal Code. [7]

Section 87 of the Code stated as follows, at the time of the offence: Pointing a firearm 87

(1) Every person commits an offence who, without lawful excuse, points a firearm at another person, whether the firearm is loadedor unloaded. Punishment

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(

b) is guilty of an offence punishable on

summary conviction. [ 8 ] The offence of uttering threats was Count 7 of the indictment, and was described in the indictment, as follows: THAT on or about the 3rd day of November, 2016, at or near Paradise, Newfoundland and Labrador, did knowingly utter, convey or cause Gerald Mercer to receive a threat to cause death or bodily harm to him, thereby committing an offence contrary to

Section 264.1(1)(a)-264.1(2) of the Criminal Code . [ 9 ]

Section 264.1 of the Code stated as follows, at the time of the offence: Uttering Threats 264.1

(1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (

a) to cause death or bodily harm to any person; (

b) to burn, destroy or damage real or personal property; or (

c) to kill, poison or injure an animal or bird that is the property of any person. Punishment

(2) Every one who commits an offence under paragraph (1)(

a) is guilty of (

a) an indictable offence and liable to imprisonment for a term not exceeding five years; or (

b) an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. Idem

(3) Every one who commits an offence under paragraph (1)(

b) or (c) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction [ 10 ] The sentencing hearing proceeded on December 12, 2019. It had been scheduled earlier, but postponed at the request of the Defence. THE CIRCUMSTANCES OF THE OFFENCES [ 11 ] The agreed statement of facts describes the circumstances of the two offences. Paragraphs 4 to 18 of the agreed facts state, as follows: “4) The complainant, Gerald Mercer, and the accused, Brenda Mercer, had a difficult and sporadic relationship.

In the weeks leading up to this incident the complainant had disclosed to the accused that he had been abused as a child and the accused had disclosed to the complainant that she had been abused by her father. 5) At approximately 7:00 p.m. on the 3 rd of November, 2016 the complainant attended the accused’s residence at 1-a Kemerton

Place for a visit as the accused had been texting him advising she was unwell. During the course of the visit, the accused became upset and demanded that the complainant return a number of items to her. 6) Based on the accused demeanor and comments to the complainant, he did not believe he had any choice but to return the firearm to the accused that night. 7) Among other items, the complainant had taken a firearm from the accused’s residence a few months prior, along with a box of ammunition and a cable lock still in the packaging.

The Complainant took the firearm as he believed the accused did not have a license or a legitimate purpose for the firearm. He asked the accused if he could borrow the firearm for his fiancée and the accused agreed.

He did not intend to return the firearm to the accused. 8) The complainant described the firearm as a 702 Plinkster .22 caliber firearm which was a factory issued in a pink colour, however he subsequently painted the firearm OD green and used it for target shooting. 9) The complainant advised police, who later verified, that the complainant has a possession and acquisition license for non- prohibited firearms.

The complainant advised police he is experienced in using firearms, and did use the accused’s firearm for its intended purpose, discharging ammunition at a firing range in the months leading up to the incident in question. 10) Later, on the evening of November 3rd, 2016, the complainant returned to the accused residence later to return several items, including the firearm. 11) When the complainant returned to the firearm he had placed a yellow cable lock on the firearm for safety. The firearm was unloaded, and the complainant did not return any ammunition with it. .

He laid the firearm on the front step of the accused residence, stepped away from the residence and threw the keys for the trigger lock on the doorstep. 12) The complainant returned to his car and began to drive away, with the front window down. When he reached the bottom of the driveway, he heard the accused yell out to him, and he heard her crying.

He got out of the car and began walking back towards the accused, and they both agreed they didn’t want to fight. 13) The complainant stated that the accused behaviour then changed rapidly and she began yelling at him again saying he was no good and he doesn’t care about anyone. 14) The accused was in her doorway and the complainant believed she was going back into her residence. The accused then picked up the firearm and pointed it at the complainant from her hip.

She stuck the firearm out, pointing it at the complainant in what he described as a “ready carry” position and said something to the effect of “there’s a bullet in this for you tonight.” 15) When the accused pointed the firearm at the complainant, the cable lock remained in place. The complainant did not see the accused make any movement towards the keys to the trigger lock. Shortly after the incident, the accused contacted the complainant looking for the keys to the trigger lock.

Police subsequently located the keys on the front step of the residence on the morning of November 4, 2016 during the accused’s arrest. 16) At this point the complainant left the accused’s residence and drove to a gas station to immediately call police. 17) The complainant described the accused demeanor as “aggressive” and “incoherent.” and said that the accused was not herself that night. The complainant believed this was a result of consumption of her prescription narcotics.

The accused asserts she was suffering from a severe depression and had not taken her prescribed medication due to the side effects. 18) The complainant told the police he felt threatened by the accused, that his experiences with the accused lead him to believe that her threat to him is serious, and that there was something different about her behaviour that night which contributed to his fear.”

[ 12 ] Ultimately on November 4, 2016, Ms. Mercer was arrested. [ 13 ] The agreed statement of facts (at paragraph 28) also confirmed that the firearm described by Gerald Mercer was a

section 2 firearm as per the Criminal Code , which “could be operated very quickly and with ease based on the proximity of the keys to the trigger lock”. CIRCUMSTANCES OF THE OFFENDER [ 14 ] Ms. Mercer is now 51 years of age. [ 15 ] Ms. Mercer has been on a recognizance since 2016, and there are no allegations of breaches before the Court. [ 16 ] Ms. Mercer has suffered serious health issues, subsequent to the commission of the offences. She has had three strokes; and she is primarily confined to a wheelchair; but sometimes she can use a cane.

Defence Counsel submitted correspondence dated November 12, 2019, from social worker Tessa South, who is a Housing Coordinator with Connections for Seniors. Ms. South described Ms. Mercer’s current physical needs as follows: … Wheelchair users in St. John’s are chronically underserved and there is a limited supply of residences available that fit their needs. Ms. Mercer has had three documented strokes and requires the use of mobility aids. It took five months to find a functional and affordable residence for Ms. Mercer. In choosing her residence a number of significant factors were involved. Firstly, Ms.

Mercer required accessible circulation areas in her residence to accommodate wheelchair use. Secondly, she needed a ground floor apartment in case an emergency evacuation had to take place. Thirdly proximity to her family doctor (3.8 km) and other services such as the grocery store (400 m), dollar store (1.1 km), and the Miller Center (1 km) so Ms. Mercer could continue with her ongoing physical rehabilitation appointments. Ms. Mercer has difficulty eating and requires the food to be cut into small chewable pieces for her.

She also has significant difficulty dressing and requires assistance from a homecare worker. Therefore, an important requirement was that her home be near major bus routes to ensure that home support workers will have access to transportation to provide their services. Her apartment has also required modifications, with grab bars needing to be installed to ensure her safety and mobility. The impact of Ms.

Mercer’s disability is that she spends the majority of her time at home, therefore it is vital that her home enables her to live as safely as possible. [ 17 ] Further correspondence dated December 8, 2019, was submitted from Ms. Mercer’s family physician. Part of that document describes Ms. Mercer’s current unstable health status and treatment as follows: Ms. Mercer’s current health status is unstable since she sustained a cerebrovascular accident (CVA) in the late August 2018.

She has multiple medical problems viz. generalized anxiety disorder, major depression, emphysema, hypertension, hyperlipidemia, chronic kidney disease, chronic pain syndrome, ischemic heart disease, sciatica, mechanical back pain, lumbar degenerative disc disease, lumbar facet joint arthropathy, left ankle fracture and malnutrition. She continues to get treatment in this regard today.

Her current medications include zopiclone (15 mg at bedtime), sennosides (17.2 mg at bedtime), rabeprazole (20 mg daily), pregabalin (100 mg twice daily), perindopril (8 mg daily), nifedipine (adalat XL 40 mg daily), hydrochorothiazide (25 mg daily), docusate sodium (200 mg daily), clopidogrel (75 mg daily), cetirizine (10 mg daily), baclofen (15 mg three times daily), atorvastatin (80 mg daily), baby aspirin (81 mg daily), diazepam (10 mg four times daily) and bupropion XL (300 mg daily).

Her other nonmedical management includes ankle brace, orthopedic footware, ensure boosters, shoulder orthosis, GoBus access services. [ 18 ] Further correspondence dated March 6, 2019, was submitted by Defence Counsel from Marigold Bateman, a social worker with the Stroke Rehabilitation Unit at the Dr. L. A. Miller Center. According to the correspondence, Ms. Bateman had worked with Ms. Mercer since her admission for stroke rehabilitation on September 11, 2018. She stated as follows: … Ms. Mercer’s most recent stroke is a Right Frontal/parietal CVA which has left her with a number of deficits. Ms.

Mercer now requires assistance with all aspects of her care including personal care needs such has toileting, dressing and showering. She is unable to use her left arm which makes certain tasks much more challenging. She uses a wheelchair majority of the time but is able to walk with a cane if

she is wearing her brace however requires someone to assist her with donning and doffing this particular ankle brace. She requires assistance with stairs. In fact, she is unable to return to her previous living arrangement due to excessive amount of stairs that she will not be able to complete independently. In addition to the physical impairments, Ms. Mercer has also suffered some cognitive impairments. She has been followed by an Occupational Therapist who has worked intensively with Ms. Mercer for a number of months.

Part of her assessments include completing cognitive screens as well as assessing how cognitive impairments may impact day to day functioning. Ms. Mercer unfortunately has issues with memory loss, poor insight and judgement, and difficulty with medication and financial management. Furthermore she was consulted to see Psychology and while she did not participate in all of the testing, she was able to be tested in some areas. The results show that Ms. Mercer scored low on verbal fluency tasks and sight word reading as well as impairments on immediate and delayed memory recall. Ms.

Mercer also self reports concerns regarding poor memory and it has been noted amongst the team that she has memory issues. For example there are many days that she will ask this writer her name although she has been working closely with me for nearly 6 months… [ 19 ] According to Defence Counsel, Ms. Mercer has ongoing care at the Dr. L. A. Miller Center. [ 20 ] Defence Counsel further submitted correspondence dated November 26, 2019 from Dr. John T. Weber, an associate professor at the School of Pharmacy, Memorial University, who has a Ph.D. in pharmacology and toxicology.

According to the report, he was provided with the agreed statement of facts, the statement from Gerald Mercer, and part of the preliminary testimony of Gerald Mercer as well as Brenda Mercer’s prescription history from July of 2018. He was asked to comment on whether some of the medications may have contributed to her actions on the evening of November 3, 2016. His correspondence stated, as follows: I have read the documents that you supplied me with, which include the Agreed Statement of Facts (ASOF), the statement from Mr. Gerald Mercer (complainant), a portion of the preliminary testimony of Mr.

Gerald Mercer, and Ms. Mercer’s prescription history from July 2018. You have asked me to comment on whether some of her prescription medications may have contributed to her actions in the evening of 3 November 2016, particularly the drugs Pregabalin and Hydroxyzine. Pregabalin is a medication that is used to treat epilepsy, but has become more prevalent to treat neuropathic pain, especially that associated with diabetic neuropathy. Hydroxyzine is an anti-histamine drug and is usually used to treat itching associated with allergies, but it is sometime prescribed for short-term anxiety and insomnia.

One of the pronounced effects of Hydroxyzine is drowsiness, which is why it can be used for insomnia. This drug can also cause dizziness in some individuals. Pregabalin is also known to cause drowsiness and dizziness. In the preliminary testimony statement, Mr. Mercer said that when he arrived at the home Ms. Mercer was sleeping and it was very difficult to wake her up. This is consistent with the effects of either of these drugs, but even greater when combined. When being woken up out of a state of deep sleep it is typical to be confused even in the absence of drugs, at least for a short period of time.

Later that evening, in reference to the incident with the firearm, the complainant stated in the ASOF that the demeanor of the accused was aggressive and incoherent, and he believed that it might have been due to her prescription medications. He also stated that there was something different about the behaviour of the accused that night.

When Pregabalin and Hydroxyzine are used in combination drowsiness and dizziness can be more pronounced, but it is also much more likely for an individual to experience erratic behaviour and confusion, and older individuals in particular may experience impaired thinking and judgment, which seemed to be the case that evening. In conclusion, I cannot confirm which drugs Brenda Mercer had consumed that day, as there is no toxicology report available. I also do not know for sure which of her prescription medications that Ms. Mercer took that day and when.

However, her actions on that day are certainly consistent with the effects that a drug interaction between Pregabalin and Hydroxyzine would produce. If you need any assistance in interpreting the information contained in this report, or if I can be of any further assistance with this case, please do not hesitate to ask. [ 21 ] Defence Counsel submitted that Dr. Weber’s report did not negate the mens rea of the offence; and Defence Counsel further acknowledged that Dr. Weber’s comments were speculative in nature.

Nevertheless, Defence Counsel submitted that his report lends some credence to the Defence position that prescription medications may have been a contributing factor. According to Defence Counsel, such information can be considered when assessing the likelihood of reoffending; and the extent of moral culpability of Ms. Mercer. [ 22 ] Ms. Mercer has an extensive prior criminal record. However, there are no other firearm offences, and the last offence committed was several years ago, in 2010. Her first offences were in 1985.

The offences include: possession of property obtained by crime, theft, being unlawfully in a dwelling house, fraud, forgery, mischief, impaired driving, assaulting a peace officer, possession of a controlled drug or substance, and failure to comply with a court order. [ 23 ] In accordance with

section 726 of the Code , Ms. Mercer spoke at her sentencing hearing. In relation to the impact of her strokes, she described herself as having already received a life sentence. Further, Ms. Mercer expressed remorse by expressing regret with respect to the manner she handled herself in the course of the incident; and she recognized that she should not have acted the way she did. She suggested that her relationship with her son no longer exists; and she seemed unhappy at the prospect of not seeing her grandchild, as a result of the incident. Further, Defence Counsel suggested that Ms. Mercer had no family support.

SENTENCING POSITIONS OF THE CROWN AND DEFENCE [ 24 ] Crown Counsel proposed that there be a custodial sentence imposed on Ms. Mercer for a total period of 12 months, followed by a 2 year probation order. More specifically, the Crown submitted that 12 months of imprisonment was appropriate for the

section 87 offence; and 4 months of imprisonment was appropriate for the

section 264.1 offence, to be served concurrently. [ 25 ] Defence Counsel’s position was that a lengthy suspended sentence of 12 to 18 months was appropriate. Alternatively, a 6 month conditional sentence was appropriate, followed by a period of non-reporting probation of 6 to 12 months.

[ 26 ] Both Counsel agreed that the Court should also impose a DNA order; and

section 109 firearms prohibition order. [ 27 ] With respect to remand time, Ms. Mercer served 4 days, from November 4, to November 7, 2016. ANALYSIS [ 28 ] The purposes of sentencing must be considered when determining a fit sentence for Ms. Mercer’s offences.

Section 718 of the Code describes the purposes of sentencing, and the objectives of sentencing, as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 29 ] Because this matter involved a firearms offence, the primary sentencing objectives are general and specific deterrence, as well as denunciation. Rehabilitation is always also a primary consideration. The remaining objectives will also be considered. [ 30 ]

Section 718.1 of the Code set forth the principles of proportionality, and states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 31 ]

Section 718.2 sets forth other sentencing principles to be considered in the analysis, as follows: 718.2 Other sentencing principles - A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (

v) evidence that the offence was a terrorism offence, or (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under

section 742.1 or

released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. SENTENCING CASE AUTHORITIES [32] The Crown provided the case of R. v. Cowan (2016), 380 Nfld. & P.E.I.R. 167 (Nfld. Prov. Ct.). The Crown submitted thiscase contained facts which were similar to Ms. Mercer’s case. However, I find that although the offender in R. v.

Cowan also facedcharges of uttering threats and firearms offences, the circumstances of his offences were far more serious than the circumstances of theoffences committed by Ms. Mercer. Although Mr. Cowan’s gun had a trigger lock in place, he uttered threats to three persons, and healso chased them. Further, as pointed out by Defence Counsel, Mr. Cowan’s antecedents suggested that he was a high risk to reoffend,posing a serious risk to his family and the community. Such is not the case before me. [33] Mr.

Cowan was ultimately sentenced to 120 days for uttering death threats; 730 days (consecutive) for use of a firearm incommitting an offence; and 60 days for possession of a firearm while prohibited (consecutive). [34] In R. v. Cowan, Judge Porter referred to Chief Justice Goodridge’s comments on the range of sentence for the offence ofuttering threats. At paragraph 24 of R. v. Crocker (1991), (NL CA), 93 Nfld. and P.E.I.R. 222 (Nfld. C. A.), ChiefJustice Goodridge stated, as follows: 24.

Sentences for threats to cause bodily harm range up to one year although frequently it has been ordered that the sentence beserved concurrently with sentences imposed for other crimes committed in conjunction with the threat. [35] At paragraph 32 of R. v. Cowan, Judge Porter further suggested (and I agree) that the sentences in our province for utteringthreats have since ranged from a non-custodial sentence, and up to three years in custody; but that the majority of cases imposed acustodial sentence of a few months. [36] The next case submitted by the Crown was R. v. M. T., 2018 NLSC 195.

The offender in that case was found guilty of assaultcausing bodily harm, sexual assault with a weapon, uttering threats and pointing a firearm. In that case, the offender was sentenced tothree months for uttering threats to be served concurrently, with a six month sentence for pointing a firearm, in addition to sentences forthe other offences. [37] With respect to R. v. M. T., the Defence Counsel submitted the case is distinguishable on the basis of there being additionaloffences to the ones with which Ms. Mercer is charged. I agree with this submission. Further, the circumstances were more serious in R.v. M.

T. than in Ms. Mercer’s case. In R. v. M. T., the offender chased the victim while pointing the gun at her, and told her two times hewas going to shoot her. [38] The third case submitted by the Crown was R. v. Riggs, 2016 NLTD(G) 214. In R. v. Riggs, the offender was sentenced for theoffences of pointing a firearm, and uttering threats; however, he was also sentenced for numerous other firearms offences, as well asassault with a weapon, and breach of undertaking.

The sentence imposed for pointing a firearm was 12 months, plus 18 months’probation; and the sentence imposed for uttering threats was 4 months concurrent. Again, the circumstances of the offences in R. v. Riggswere more serious than in Ms. Mercer’s case. In R. v. Riggs, the offender discharged a shotgun, and held the gun against the neck of oneof his victims, and the offences involved more than one person. [39] In R. v. Riggs, the Court referred to Justice Dymond’s decision in R. v. Hunt, 2007 NLTD 204. In R. v. Hunt, an offender pledguilty to offences which included pointing a firearm and uttering threats.

In R. v. Hunt, Justice Dymond imposed a sentence of 9 monthsfor pointing a firearm; and 6 months for uttering threats. However, as submitted by Defence Counsel, the offences in R. v. Hunt werecommitted in the context of an armed robbery. This was also noted by Justice Goodridge in R. v. Riggs. [40] The next case submitted by the Crown was R. v. Lagace, 2016 ABPC 102. In R. v. Lagace, the offender was sentenced to 12months for the offence of pointing a firearm; and 3 months concurrent for uttering threats. Again, the circumstances were more severethan Ms. Mercer’s offences. The offender in R. v.

Lagace had placed a shell in the gun before pointing it; by contrast, there was noammunition in the gun pointed by Ms. Mercer. Further, the offender in R. v. Lagace pled guilty to more firearms offences.

[41] The next case submitted by the Crown was R. v. Hickey, 2010 NLTD 49. This case is distinguishable as it is a joint submissionon sentencing. In R. v. Hickey, the sentence imposed for uttering threats was 3 months’ imprisonment, and the sentence imposed for useof a firearm while committing an indictable offence was 18 months’ imprisonment, followed by 2 years’ probation. Again, however, thecircumstances were more serious than the offences Ms. Mercer committed. In R. v. Hickey, the offences were committed in the contextof an assault. Further, Mr.

Hickey had a significant prior criminal record which included crimes of violence. By contrast, there was onlyone crime of violence in Ms. Mercer’s record, being that of assaulting a peace officer for which she was convicted in 1994. Also in R. v.Hickey a firearm was discharged, and that is not the case in this matter. [42] In

summary, the Crown’s cases suggest that for the offence of uttering threats, the range of sentence is 3 months to 6 months’imprisonment. The Crown’s cases further suggest a range of sentence for the offence of pointing a firearm as being mostly from 6months to 12 months. However, all of the Crown’s cases relayed fact scenarios more serious than the circumstances of Ms. Mercer’soffences. [43] Defence Counsel submitted the case of R. v. Fernandes, 2015 ONCJ 669. In R. v. Fernandes, the offender had significantmental health issues.

He was involved in an incident which led to his pleading guilty to pointing a firearm at a police officer, andthreatening the police officer with death. He was sentenced to a conditional discharge, 2 years’ probation, and 50 hours of communityservice. [44] The Crown distinguished this case on the basis that the offender was 20 years of age at the time, and was in a mental healthcrisis. Defence Counsel acknowledged that the case could be distinguished on that basis.

However, Defence Counsel submitted that Ms.Mercer’s behavior at the time of the incident was different than her usual behavior, and such was acknowledged by the complainant. Defence Counsel submitted this may have been the result of prescription medications, and such should be taken into account with respectto sentencing. [45] Defence Counsel also submitted the Ontario Court of Appeal’s decision in R. v. Dumont (2001), (ON CA),141 O.A.C. 324 (Ont. C.A.). In that case, the offender was charged with having pointed a firearm at her children. The incident occurredmany years prior to the charge.

The Ontario Court of Appeal imposed a conditional sentence of 1 year. [46] Crown Counsel distinguished R. v. Dumont on the basis of the fact that the offence had occurred 19 years ago; and the offenderhad no criminal record. Nevertheless, it is a precedent for imposing a conditional sentence for the offence of pointing a firearm. [47] The next case submitted by Defence Counsel was R. v. Lightfoot (1998), (NS SC), 169 N.S.R. (2d) 125(N.S.S.C.). The offender in R. v. Lightfoot pled guilty to charges arising from a confrontation which took place in a domestic situation.

The charges included pointing a firearm, uttering threats, assault and resisting a peace officer. The offender was sentenced to a 12 monthconditional sentence, followed by 12 months of probation. Therefore, R. v. Lightfoot is another precedent where a conditional sentencewas imposed for the offence of pointing a firearm. [48] On this point, Defence Counsel pointed out paragraph 10 in R. v. Lightfoot, which states, as follows: 10 The protection of the public remains the overriding principle and the Criminal Code provides some statutory guidance as to thefactors to be considered in achieving that objective.

In addition, sentencing courts must consider Sections 718.2 (

d) and (

e) which wouldappear to require the courts to consider conditional sentences where the specific criteria for those sentences are met and such a sentencewould be consistent with the fundamental purpose and the principles of sentencing set out in

Section 718 to 718.2. [49] The Crown distinguished R. v. Lightfoot on the basis that the offender had undertaken significant efforts with respect torehabilitation; the Crown submitted that such is not the case here. However, as suggested by Defence Counsel, rehabilitation efforts aremerely one way to assess an individual’s risk to the community. Defence Counsel submitted other factors should also be considered. Further, as suggested by Defence Counsel, Ms.

Mercer has been in a position of having to deal with significant health issues, as opposedto being in a position to participate in such rehabilitation efforts. [50] Defence Counsel further submitted the case of R. v. Middleton, [2006] O.J. No. 5776, in which a conditional sentence was alsoimposed in circumstances where the offender was convicted of assaulting his girlfriend, uttering a death threat, and pointing a firearm. He was sentenced to 90 days’ imprisonment for assault causing bodily harm, concurrent with an 18 month conditional sentence,followed by 3 years’ probation on the other counts.

Crown Counsel distinguished the case on the basis that the conditional sentence wasput in place in order to allow the offender to continue his employment; and such is not a concern in Ms. Mercer’s case. [51] Nevertheless, Defence Counsel has put forward clear precedent for allowing a conditional sentence in circumstances where anoffender has been charged with pointing a firearm and uttering threats. I note that the sentencing decision in R. v. Middleton was upheldby the Supreme Court of Canada in R. v. Middleton, 2009 SCC 21. [52] Defence Counsel further submitted R. v. Kerrivan, 2004 NLSCTD 112.

This was a case where the offender was sentenced forthe offence of assault with a weapon, uttering a threat and improper use of a firearm. A conditional sentence of 14 months, and 2 years’probation, was imposed by Justice Barry. [53] The Crown distinguished R.v. Kerrivan on the basis that the firearm was not aimed at the victim, and the threat was to harmproperty and it was not directed at the victim. Further, Mr. Kerrivan had no prior criminal record, and he had a military background. However, as noted by Defence Counsel, in addition to Mr.

Kerrivan pleading guilty to uttering a threat and the firearms offence, he alsopled guilty to the charge of assault with a weapon. Further, as submitted by Defence Counsel, the decision in R. v. Kerrivan to impose aconditional sentence was influenced by the Judge’s finding that the offender did not pose a threat to public safety. [54] On this point, in R. v. Kerrivan Justice Barry reviewed case law from this province, and explained why a conditional sentencewas appropriate. He stated at paragraphs 16 to 21, as follows: 16 A case more similar on the circumstances of spontaneity is R. v. Olmstead, [1990] N.J.

No. 22, where our Court of Appeal

accepted a sentence of seven months for unlawfully pointing a shotgun and four months concurrent for threatening to kill, where a husband, during a domestic quarrel, left the room and returned with a loaded and cocked shotgun which he pointed at his wife, threatening to "blow her head off". A distinguishing feature of Olmstead is the direct threat. 17 Another relevant case is R. v. Whelan , [1994] N.J.

No. 31 , where Hickman C.J.T.D. imposed a sentence of nine months' imprisonment for assault with a weapon, six months concurrent for unlawful possession of a firearm, and a further six months concurrent for uttering threats, after the accused, who had been out drinking and dancing with his girlfriend and other friends, became jealous because of her dancing with others, opened the trunk of his automobile so that the complainant and others could see a shotgun, and uttered threats to kill everyone before the night was out.

Later he renewed the threats and eventually brought his shotgun into a residence and pointed it at his girlfriend's head. She grabbed the barrel and ducked as the firearm discharged. After police arrived the offender blew .160 and .180 on the breathalyzer. Evidence indicated his behaviour and the excessive consumption of alcohol was totally out of character. The Chief Justice noted there was not much premeditation. 18 In R. v. Morey , [1994] N.J.

No. 106 , where an offender had threatened two Fisheries Officer with a shotgun, Schwartz J. imposed a sentence of one year's imprisonment on a charge of using a firearm while committing an indictable offence, three months' imprisonment for obstructing an peace officer and seven months for assault with a weapon, all to run consecutively for a total period of incarceration of 22 months. 19 Another helpful case is R. v. Bruce , [1997] N.J.

No. 23 , where Roberts J. imposed sentences of five months for pointing a firearm, five months for assault with a weapon, three months for assault and three months for uttering a threat, to be served concurrently, where the offender had violently assaulted his common-law wife while threatening to kill her. 20 These cases satisfy me that a sentence of less than two years would be appropriate in the present circumstances. I am also satisfied that Kerrivan does not pose a continuing threat to public safety.

He therefore meets the minimal requirements for a conditional sentence under the Criminal Code . 21 The use of a firearm in the commission of the offence would normally mean that the sentence should be served in custody.

With some difficulty I have concluded that, in the peculiar circumstances of this case, where there was no planning or deliberation, where the offender pleaded guilty and expressed remorse, where the offender had no criminal record, and where the offence was completely out of character and brought on by the excessive consumption of alcohol with prescription medication, I conclude that appropriate denunciation and general and specific deterrence would be achieved by imposing a conditional sentence to be served in the community.

John Kerrivan, I impose upon you a conditional sentence of 14 months plus two years' probation to be served in the community for the offence of assault with a weapon, contrary to ss. 267 (

a) of the Criminal Code . I also impose a conditional sentence of three months to be served in the community for uttering a threat to damage the property of the complainant, contrary to s. 264.1(1) (

b) of the Criminal Code , concurrent with the first sentence, and one month's conditional sentence to be served in the community for the careless use and storage of firearms, contrary to s. 86(1) of the Criminal Code … [ 55 ] In light of the foregoing, I conclude that Defence cases strongly support consideration of a conditional sentence, even in the circumstances of a firearms offence. However, as suggested in R. v. Kerrivan (at paragraph 21 ), such is not the norm. Nevertheless, it must be determined whether the circumstances of Ms.

Mercer’s case support a conditional sentence. [ 56 ] The final case submitted by the Defence was R. v. A. E. S ., 2018 BCCA 478 . In that case, the offender was convicted of historic indecent assault offences against his three daughters. The accused was sentenced at trial to 6 years’ imprisonment.

Due to the accused’s poor health and that he could die before the sentence was served, the sentence was reduced to 2 years, less a day, to be served in the community. [ 57 ] As submitted by the Crown, there is nothing in the case before me that would suggest that a period of incarceration may shorten the life span of Ms. Mercer. Defence Counsel submitted that while the medical issues in R. v. A. E. S . were far more extreme than Ms. Mercer’s medical issues, the Court may consider medical and health issues when determining an appropriate sentence for an offence. I agree with this submission.

AGGRAVATING AND MITIGATING FACTORS [ 58 ] Aggravating factors must be proven by the Crown beyond a reasonable doubt. The Crown put forward Ms. Mercer’s prior criminal record as an aggravating factor, and submitted that there was a history of court order breaches and crimes of dishonesty. [ 59 ] The fact of an extensive criminal record is, in itself, an aggravating factor. However, Ms. Mercer’s criminal record is significantly dated, with the last conviction being in 2010. Further, the criminal record is unrelated, with no history of firearms offences and uttering threats.

There is only one conviction for breach of a court order, and there is only one violence related offence, being assaulting a peace officer in 1994. In my view, the criminal record of Ms. Mercer is so dated, and so unrelated to the current offences, that it has minimal impact as an aggravating factor. [ 60 ] Further, the one conviction for breach of a court order occurred more than 9 years ago. In any event, as submitted by the Defence, Ms. Mercer has been on a recognizance since 2016, with apparent compliance as there have been no allegations of breach of

that recognizance. She has demonstrated her ability to comply with court orders. [ 61 ] The Crown further submitted that an aggravating factor was that the victim was her son. I disagree. As submitted by Defence Counsel, he is an adult and he is not dependent. [ 62 ] The fact that a weapon was used is an aggravating factor. [ 63 ] The primary mitigating factors in this matter are Ms. Mercer’s guilty plea, and her significant medical health concerns. [ 64 ] Crown Counsel submitted that the Court must consider the lack of timeliness with respect to the guilty plea.

The change of plea took place on the day the jury panel had been assembled for the purposes of jury selection. As submitted by Defence Counsel, however, there are a number of factors leading up to a change of plea. I consider the fact of the guilty plea to be a mitigating factor. [ 65 ] Further, Ms. Mercer’s significant medical issues are to be considered a mitigating factor. She is, for the most part, confined to a wheelchair, due to the strokes she suffered subsequent to having committed the offences.

As suggested by Defence Counsel, in light of her physical limitations and needs, the impact of a period of incarceration could indeed be greater on Ms. Mercer than the impact of the same period of incarceration on another offender with no such issues. At the same time, however, I recognize that persons with significant health issues can and are imprisoned, with accommodations for their health challenges.

SENTENCING ANALYSIS [ 66 ] In the circumstances of this case, I consider the objectives of deterrence, both general and specific, as well as denunciation, to be the primary considerations when dealing with weapons offences. As stated, rehabilitation is also always a primary consideration. [ 67 ] Further, I have considered the submissions, the case law, the circumstances of the offence and the Offender, the principles of sentencing, and sections 718.2 (

d) and (

e) of the Code . I conclude that a suspended sentence is not appropriate in the circumstances of this case; particularly due to the gravity of the fact of a weapons offence, and considering the sentences in the case law provided. [ 68 ] I conclude this even though I have found that the circumstances of Ms. Mercer’s offences are far less serious than the circumstances of the offences in all of the cases submitted by the Crown; and all the cases from this province submitted by both Counsel. Ms. Mercer’s offences were not premeditated.

She did not commit the offences of pointing a firearm and uttering threats in the context of committing other offences. Further, the gun was not loaded, and the lock was in place. [ 69 ] In my view, the case law provided suggests that the range of sentence for the offence of pointing a firearm is, for the most part, 6 to 12 months of imprisonment, followed by probation. I note, however, that in R. v. Kerrivan , Justice Barry referred to R. v. Bruce (1997), 151 Nfld. & P.E.I.R. 315 (Nfld.

T.D.) , where a lesser sentence of five months was imposed for pointing a firearm, along with other concurrent sentences, and probation. [ 70 ] Pointing a firearm is a serious offence. However, considering the circumstances of Ms. Mercer’s offences, and Ms. Mercer’s own circumstances, along with the aggravating and mitigating circumstances, the purpose and the principles of sentencing, it is my view that a sentence for the offence of pointing a firearm in this matter should be on the lower end of the range.

Further, the sentence is to be imposed concurrently with the offence of uttering threats. [ 71 ] As well, after considering the circumstances of Ms. Mercer’s offences, and Ms. Mercer’s own circumstances, I am also satisfied that Ms. Mercer does not pose a risk to public safety; and that service of her sentence can be in the community. A conditional sentence would be consistent with the purposes and principles of sentencing. More specifically, as in R. v.

Kerrivan , I conclude that denunciation and deterrence will be satisfied by the imposition of a conditional sentence, to be served within the community, and in accordance with

section 742.1 of the Code . [ 72 ] As in R. v. Kerrivan , I conclude this based on all the facts, and the unique circumstances of this case. There was no planning or deliberation, the Offender ultimately pled guilty, and the Offender expressed remorse. Further, Ms. Mercer’s criminal record is too dated to bring into question issues of risk to public safety; and she has been on a recognizance since charged in 2016, without any apparent incident. In addition, Ms. Mercer, since committing the offences, has suffered serious medical issues. As well, the agreed facts indicate that the complainant described Ms.

Mercer’s behavior as being “not herself that night”. It is too speculative to attribute Ms. Mercer’s behavior to prescription medications; nevertheless, I am satisfied that the incident was out of character for Ms. Mercer. [ 73 ] With respect to the offence of pointing a firearm, a fit and appropriate sentence to impose upon Brenda Mercer is a conditional sentence of 6 months, to be served in the community, followed by 12 months of probation. I hereby impose this sentence. Based on all the circumstances, and Ms.

Mercer’s demonstrated compliance while on a recognizance, I accept the Defence submission that regular reporting under the probation order is not necessary. [ 74 ] With respect to the offence of uttering threats, a fit and appropriate sentence to impose is a conditional sentence of 3 months, also to be served in the community and concurrent with the first sentence. I hereby also impose this sentence. DISPOSITION [ 75 ] Based on the foregoing analysis, for the offences of pointing a firearm and uttering threats, I impose upon Ms.

Mercer a total conditional sentence of 6 months, to be served in the community, under the terms of a conditional sentence order; followed by 12 months of probation. [ 76 ] The conditions of the conditional sentence are, as follows: a. Keep the peace and be of good behavior;

b. Appear before the Court when required to do so by the Court; c. Report to a supervisor at Adult Corrections within the next three working days, and thereafter as required and in the manner directed by the supervisor, or someone acting in his or her stead; d. To remain within the Province of Newfoundland and Labrador unless written permission to go outside the province is obtained from the Court or the supervisor; e. To notify the Court or the supervisor in advance of any change of name or address, and to promptly notify the Court or the supervisor of any change of employment or occupation; f.

To abstain from contact or communication with Gerald Mercer and his immediate family, being his partner (if any), and his child (or children); unless written consent is obtained in the manner described in

section 742.3 of the Code ; g. To abstain from owning, possessing or carrying a weapon; h. To attend counselling programs at the supervisor’s discretion, if the supervisor deems a program suitable, with accommodations for Ms. Mercer’s mobility challenges being made to permit attendance at such programs; and i. To remain within her residence during the period of conditional sentence except for the following: 1. Attendance for medical, rehabilitation, dental or other health-related treatments or appointments; 2. Attendance for medical emergencies, or to stay in hospital required under medical advice; 3.

Up to four consecutive hours, twice per week for the purpose of shopping, banking or attending to other personal business, during a timeframe as approved by the supervisor; 4. One hour per day outside her residence, at a timeframe as approved by the supervisor; 5. Attendance for legal appointments; and 6. Attendance for such further and other purposes and times as approved by your supervisor. [ 77 ] The conditions of the probation order are to be as follows: a. Keep the peace and be of good behavior; b. Appear before the Court when required to do so by the Court; c.

To remain within the Province of Newfoundland and Labrador unless written permission to go outside the province is obtained from the Court or a probation officer at Adult Corrections, or someone acting in his or her stead;

d. To notify the Court or a probation officer at Adult Corrections, or someone acting in his or her stead, in advance of any change of name or address, or of any change of employment or occupation; e. To abstain from contact or communication with Gerald Mercer and his immediate family, being his partner (if any), and his child (or children); unless written consent is obtained in the manner described in

section 732.1 of the Code ; and f. To abstain from owning, possessing or carrying a weapon. [ 78 ] I further order that Ms. Mercer shall provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis, in accordance with

section 487.052(1) of the Code . [ 79 ] I further impose a firearms prohibition, for a period of 10 years, in accordance with

section 109 of the Code . [ 80 ] Order accordingly. _____________________________ Valerie L. Marshall Justice