R. v. Earle, 2018 NLSC 257

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Earle , 2018 NLSC 257 Date : January 14, 201 9 Docket : 201701G6776 Her Majesty The Queen v. Jason Earle Before: Justice Vikas Khaladkar Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 6, 2018 Date of Oral Judgment: January 14, 2019

Summary: The Offender, Jason Earle, was convicted of unlawful possession of a firearm, careless use of a firearm, unlawful possession of a prohibited weapon with readily accessible ammunition, uttering threats to cause death or bodily harm, assaulting a peace officer and possession of a firearm knowing that it was obtained by the commission of a criminal offence. Counsel jointly submitted, and the Court agrees, that the charge of unlawful possession of a firearm is duplicitous within the meaning of R. v. Kienapple . A judicial stay of proceedings is, therefore, entered with respect to that charge.

With respect to the remaining charges the Offender is sentenced to serve a global sentence of 24 and one-half months imprisonment taking into account 110 days that he served on remand and giving him credit for that time served at a rate of 1.5 to 1.0.

Appearances: Erin E. Matthews Appearing on behalf of the Crown Jennifer A. Curran Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Earle, 2018 NLSC 243; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729; R. v. Nur, 2015SCC 15; R. v. Knowles, 2017 BCPC 39; R. v. Squires, 2017 NLPC 0114A02085; R. v. Fenton, 2017 ONSC 5945; R. v. Williams, 2018ONSC 5409; R. v. Pelletier, 2016 BCSC 2497; R. v. Payne, 2018 NLPC 1317A00376; R. v. Shaw, 2017 NLTD(G) 14; R. v. Rubner,2017 BCPC 339; R. v. Halpenny, 2018 NSSC 30; R. v. O’Quinn, 2017 NLCA 10 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The reasons for finding the Offender guilty are reported at R. v. Earle, 2018 NLSC 243. Briefly, the Offender was involvedin an armed standoff with police. He was in suicidal state at the time and expressed to 911 that it was his intention to die in a shoot-outwith the police. At the conclusion of the trial, I found Mr.

Earle guilty of three firearms offences, two offences incidental upon his arrestfor threatening and assaulting a peace officer in the execution of his duties and a charge of possession of a stolen prohibited weapon –namely the weapon used during the armed standoff. [2] Counsel jointly submitted, and I agree, that the charge of unlawful possession of a firearm is duplicitous within the meaningof R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729.

I, therefore, enter a judicial stay of proceedings in respect of thatcharge. [3] I have determined that a global sentence of 24 and one-half months is an appropriate sentence taking into consideration theprinciples of sentencing and the circumstances of the Offender. The following are my reasons for having arrived at that decision. THE SENTENCING POSITION OF THE PARTIES The Crown’s Position [4] Ms. Matthews, on behalf of the Crown submitted that there are mitigating and aggravating circumstances in this case. Shenoted that although Mr.

Earle’s previous record is aggravating, that most of that record was amassed while Mr. Earle was a youth. Therehas been a significant hiatus of seven years during which Mr. Earle has had no difficulty with the law. She acknowledged that Mr. Earlesuffers from Post-Traumatic Stress Disorder (“PTSD”) and that he was in distress at the time of this incident. However, she says thatMr. Earle’s previous convictions include robbery, forcible confinement and uttering threats. She argues that the standoff resulted in avery real possibility that someone could have been killed.

The fact that a firearm was involved, in her opinion, brought to the fore theprinciples of denunciation and deterrence as primary considerations. She said that there was no legitimate reason for Mr. Earle topossess this firearm. [5] Ms. Matthews submitted that a sentence of four years and three months is an appropriate sentence in this case. She arrived atthe sentence based on the following calculations: Count 2 – Section 86(1) - Careless use of a Firearm – six months concurrent. Count 3 – Section 95(1) - Unlawful Possession of a Loaded, Prohibited Firearm – three years consecutive.

Count 4 –

Section 264.1(1)(a) – Uttering Threats to cause Death or Serious Bodily Harm – 90 days concurrent to Count 5, but consecutive to other charges. Count 5 – Section 270(1)(a) – Assaulting a peace officer during the execution of his duties – 90 days concurrent to Count 4, but consecutive to other charges. Count 7 – Section 96(1) - Possession of a prohibited firearm knowing it was obtained through the commission of an indictable offence – one year mandatory minimum – consecutive to all other charges. [ 6 ] The Crown submitted that the sentence it sought would not be crushing. [ 7 ] Ms. Matthews also requested ancillary orders including a DNA Order, an Order pursuant to

section 109 of the Criminal Code , R.S.C. 1985, c. C-46 and an Order for the forfeiture of the firearm and ammunition seized from the Offender. The Defence’s Position [ 8 ] Ms. Curran argued, on behalf of Mr. Earle, that the Offender was attempting to end his life. He was distraught at the time, had sought psychiatric assistance to no avail, and was suffering. Court heard evidence from Dr. Kellie Hadden, a clinical psychologist and professor at Memorial University of Newfoundland and Labrador, who has been providing pro bono counseling to Mr. Earle for some time. [ 9 ] Dr. Hadden has been involved with Mr.

Earle since about 2013. She testified that he has made a lot of changes in his life since she first met him, and he has managed to cope effectively and was doing very well. He has been diagnosed with PTSD and Attention Deficit Hyperactivity Disorder (“ ADHD”) and has enormous difficulties with anxiety. He is the father of a six year old child who has Down Syndrome with whom he has regular contact. [ 10 ] Dr. Hadden testified that Mr. Earle had suffered much trauma as he grew up. Emotionally, she felt that he is still a child. He is unable to regulate his emotions effectively.

He has a learning disability and is unable to read or write. He wishes to attend Homewood – a treatment centre in Ontario that specializes in providing behaviour therapy for persons afflicted with PTSD. [ 11 ] She felt that Mr. Earle’s difficulties with PTSD and his learning disability can be overcome with treatment and therapy. She thought that a residential treatment program, like Homewood, would be beneficial to Mr. Earle. She also felt that it is imperative that Mr. Earle learn to read and write so that he can obtain better employment for himself. [ 12 ] Ms. Curran stated that Mr. Earle is 25 years of age.

She said that much of Mr. Earle’s criminal record was amassed while he was still a young offender. He has only two prior convictions as an adult – and these are seven years old. She indicated that a long period of incarceration would be crushing with respect to Mr. Earle’s prospects for rehabilitation. [ 13 ] Defence submitted that a global period of one year of incarceration, on account of all the charges, was appropriate. Ms. Curran argued that Mr. Earle should also be given credit for the 110 days that he spent on remand in relation to these charges.

THE PRINCIPLES OF SENTENCING [ 14 ] The principles of sentencing are codified by virtue of sections 718 - 718.2 of the Criminal Code . A sentence must be commensurate with the gravity of the offence and the degree of responsibility of the offender. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Sentences should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 15 ] To the extent possible, a sentence must protect the public, promote respect for the law, and assist in maintaining a peaceful and safe society. The Court must impose sanctions that are just.

Section 718 sets out the objectives of sentencing, and I am mindful of them. To paraphrase, the objectives include denunciation, deterrence: general and specific, separation of the offender from society where appropriate, rehabilitation, reparation and the promotion of a sense of responsibility in offenders. [ 16 ] A fit sentence depends not only on the circumstances of the offence but the circumstances of the offender. THE OBJECTIVES OF SENTENCING [ 17 ] Crown counsel suggested that denunciation and deterrence were the primary considerations of sentencing in this case. Defence counsel argued that Mr.

Earle’s circumstances ought to receive the Court’s significant regard, and therefore a lenient sentence was mandated. I was referred to a number of decisions by both Crown and Defence in support of their positions on sentence. I will deal with them in the course of my analysis. ANALYSIS Count 2 – Careless use of a firearm [ 18 ] In accordance with section 86(3) of the Criminal Code , a person convicted of the careless use of a firearm under section 86(1) is liable to a maximum sentence of two years. The Crown has submitted that six months is an appropriate sentence in this case. I agree. [ 19 ] Mr.

Earle barricaded himself inside his house with a loaded, prohibited firearm. He threatened suicide – impelling his mother to call William Earle, his father, to come home and deal with Jason Earle. During the course of his standoff with police the firearm discharged on two occasions while Jason Earle had possession of it. It discharged on a third occasion when William Earle was attempting to gain possession and control of it. At least one of the three discharges was deliberate – Jason Earle shot the telephone while

inside his mother’s house. Potential grievous harm is certainly foreseeable in such circumstances and denunciation and deterrence loom large when attempting to craft an appropriate sentence. Count 3 – Unlawful possession of a loaded, prohibited firearm [ 20 ] The Crown relied upon the Supreme Court of Canada’s decision in R. v. Nur , 2015 SCC 15 . That case dealt with the constitutionality of mandatory minimum sentences for the possession of loaded prohibited and restricted firearms. The Court found, in that case, that the three year minimum sentence for first offenders and the five year minimum sentence for second or subsequent offenders infringed

section 12 of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter ”) and was, therefore, unconstitutional. Despite that finding, the 40-month sentence levied against Mr. Nur was found to be appropriate. The Court, at paragraph 82 of its decision, described a continuum of behaviour that might merit a sentence of three years or more at one end of the spectrum and considerably less at the other end.

The more serious end of the spectrum is occupied by the: 82. … “… outlaw who carries a loaded prohibited weapon or restricted firearm in public places as a tool of his or her criminal trade. … [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public” (para.51). At this end of the range – indeed for the vast majority of offences – a three-year sentence may be appropriate. [ 21 ] At the other end of the range is a responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored.

For this Offender a three-year sentence would be grossly disproportionate. [ 22 ] Mr. Earle’s behaviour falls between these two extremes. I accept that Mr. Earle was suicidal. However, I am troubled by the fact that his stated intention was to commit suicide by having the police kill him in a shootout. In doing so, Mr. Earle put his father’s life in jeopardy – because Earle Sr. tried valiantly to defuse the situation by having Earle Jr. give up the gun. It is quite conceivable that Earle Sr. could have been killed or injured in the course of attempting to and, eventually, disarming Earle Jr.

Similarly, it is quite conceivable that police officers, or members of the public, could have been harmed in a standoff that culminated in the protagonists firing their weapons at each other. [ 23 ] To put it another way, the fact that Jason Earle sought to end his own life through the agency of police officers in an armed standoff diminishes the sympathy that the Court may have felt for his situation if it were dealing with a simple case of possession of a prohibited weapon. [ 24 ] Unlike the Nur and R. v. Knowles , 2017 BCPC 39 , cases cited by the Crown, Mr.

Earle’s possession of the firearm was not in a public place – it was at home. However, the fact that Mr. Earle was inviting police to enter the home and shoot him is tantamount to inviting the public into his dwelling – not much different from carrying a loaded, prohibited weapon about in a public area. [ 25 ] In R. v. Squires, 2017 NLPC 0114 A02085, Judge Skanes sentenced the accused to 18 months’ imprisonment for a section 95(1) offence.

However, it is evident from Judge Skanes’ reasons that she reduced the sentence to account for the fact that the accused’s Charter rights had been breached incidental to his arrest. In the Squires case the accused was located in a vehicle outside a community centre. [ 26 ] In R. v. Fenton , 2017 ONSC 5945 , the accused was sentenced to 36 months for possession of a prohibited firearm (a sawed-off shotgun and ammunition). In that case the accused was also convicted of threatening and the Court held that it would be appropriate to have the sentences carried out consecutively. [ 27 ] In R. v.

Williams , 2018 ONSC 5409 , Justice Hill observed that a loaded handgun is not a clothing accessory – it is a device designed to be capable of causing death and injury. To that, I might add that a rifle that has been modified by sawing off the barrel and the stock, and filing off the serial number, exhibits its owner’s desire to possess a weapon that is easily hidden. There is no conceivable valid reason to modify a firearm in that manner. Justice Hill noted at paragraph 34 that: 34.

Unlawful firearms are a scourge to the community and their possession must be stopped by exemplary sentences emphasizing denunciation and general deterrence. … [ 28 ] The accused was sentenced to a prison term of 48 months with credit for time served in the Williams case in relation to the section 95(1) offence. In that case the accused had a loaded, concealed handgun in public places including a high school. In addition, Mr. Williams had previous convictions for violence, including for assault with a weapon. [ 29 ] In R. v.

Pelletier , 2016 BCSC 2497 , Justice Kelleher sentenced the accused to serve a suspended sentence. The distinguishing feature of that case was the fact that the accused was Aboriginal and there were unique systemic factors that the Court found reduced her moral culpability. In addition, the accused had been on rigorous bail conditions for four and one-half years without any breaches. Ms. Pelletier was also afflicted with PTSD and ADHD. [ 30 ] Closer to home, in R. v.

Payne, 2018 NLPC 1317 A00376, Judge Gorman sentenced the accused to a six month period of conditional imprisonment for careless use of a firearm, possession of a firearm without being licensed to do so and injuring and killing a dog. Several features of the Payne case are distinguishable. Firstly, the firearm was a non-restricted firearm – not a sawed off prohibited weapon. Secondly, the rifle was used to shoot a dog that had allegedly attacked Mr. Payne’s dog. There were children near the location where the dog was shot – which made the use of the firearm inherently dangerous.

A factor in Judge Gorman’s decision to impose a conditional sentence was the advanced age of the accused – 79 years, and his lack of any previous convictions. [ 31 ] In R. v. Shaw , 2017 NLTD(G) 142, the accused was convicted of the offences of possession of a restricted weapon, weapon trafficking, careless storage of a firearm and breaches of undertakings. The offences involved the sale of a handgun and ammunition to an undercover police officer. Justice Goodridge imposed a period of three and one-half years imprisonment. [ 32 ] In R. v. Rubner , 2017 BCPC 339 , Justice St.

Pierre sentenced the accused to a conditional sentence of two years less a day for

the possession of a prohibited firearm. At the time of the offence the accused was severely intoxicated on drugs. While there was an interaction with a clerk at a pawn shop, the possession of the firearm was not a factor in that interaction. As the accused was leaving, he walked into the arms of patrolling police officers – who mistakenly thought that there was a robbery in progress and searched the accused. While awaiting sentencing the accused turned his life around, successfully gave up his drug habit, found gainful employment.

The sentencing judge thought it appropriate, in all the circumstances, to grant a conditional sentence. [ 33 ] In R. v. Halpenny , 2018 NSSC 30 , Justice Cacchione sentenced the accused to a global sentence of 30 months imprisonment on account of the possession of a number of prohibited and restricted firearms and silencers. [ 34 ] Despite Mr. Earle’s suicidal ideation at the time of the offences, and despite his struggles with PTSD and ADHD, a custodial term of imprisonment is mandated by the circumstances.

I cannot overlook the fact that multiple police officers were dispatched to the scene under what had to be trying circumstances. I cannot overlook the fact that the entire neighbourhood had to be locked down because of Mr. Earle’s actions. Denunciation and deterrence are the most important considerations that I must consider. [ 35 ] The Crown has requested a three-year sentence in respect of this count. Three years of imprisonment seems to be the norm for offences that do not fall on either extreme end of the range.

Subject to considerations such as totality, or adjustments made on account of most of the charges being in respect of a single crime spree, three years is an appropriate sentence for this offence. Count 4 – Uttering threats to cause death or serious bodily harm [ 36 ] In the course of arresting Jason Earle he told Cst. Kevin Morgan that he would find him and kill him. No doubt this statement was made in the heat of the moment. The Crown seeks a sentence of 90 days imprisonment. Count 5 – Assaulting a Peace Officer during the execution of his duties [ 37 ] While arresting Jason Earle, Cst.

Kevin Morgan was kicked on three occasions. One of the kicks was to Cst. Morgan’s face and caused some short and medium term discomfort – including headaches for some time. The Crown seeks a sentence of 90 days imprisonment, but says that the sentence should be concurrent to the sentence for Count 4 and consecutive to the other charges. Count 7– Possession of a prohibited firearm knowing it was obtained through the commission of an indictable offence. [ 38 ] There is a mandatory minimum sentence for this offence of one year imprisonment.

The Crown is not seeking in excess of that. [ 39 ] The sentences requested by the Crown for each of the counts, then, would be as follows: Count No. Description of Charge Sentence 1 Section 91(1) – Unlawful possession of a firearm Judicially stayed 2 Section 86(1) – Careless use of firearm 6 months concurrent 3 Section 95(1) – Possession of prohibited firearm and ammunition 36 months consecutive 4

Section 264.1(1)(1)(a) – Threatening to cause death or bodily harm 3 months, concurrent to Count 4 5 Section 270(1)(a) – Assaulting a peace officer in the execution of his duties 3 months consecutive to other charges 7 Section 95(1) – Possession of a firearm knowing it was obtained by the commission of an offence 12 months Total: 51 months Adjusting for Totality [ 40 ] I am left, therefore, with Counts 2, 3, 4, 5 and 7. Ordinarily, separate criminal adventures ought to be dealt with by consecutive sentences. The cumulative effect of these sentences would be 1,625 days or almost four and one-half years in prison.

The Crown asked for a global sentence of four years and three months. However, such a sentence would be crushing for a person who has only two adult criminal convictions registered seven years ago. [ 41 ] In addition, I must be mindful of the fact that Counts 2, 3, 4 and 5 are really part of a single criminal enterprise – namely the police standoff. As such, in accordance with our Court of Appeal’s reasoning in R. v. O’Quinn , 2017 NLCA 10 , the imprisonment for these offences should be made concurrent. Applying that reasoning to Mr.

Earle’s situation would see the total sentence reduced to 48 months since Count 7 is not part of the spree and, ordinarily, should be dealt with by way of a consecutive sentence. [ 42 ] In my opinion a sentence of 48 months would be crushing for this Offender. He had successfully remained conviction free for seven years before this incident – despite having serious mental health issues including PTSD, ADHD, Dyslexia and being functionally illiterate. He suffers from severe anxiety. He tried to get help from the Waterford facility just prior to the standoff with police, but was unsuccessful in doing so.

A four-year sentence would not only be crushing, but it would severely affect his prospects for rehabilitation. Jason Earle is still a youthful offender – he was only 23 years of age when this incident occurred, and that is also a factor to be considered in crafting an appropriate sentence. [ 43 ] I think that a global sentence of 30 months would adequately address the needs of denunciation, deterrence and rehabilitation in

Mr. Earle’s case. I calculate that sentence as follows: Count No. Description of Charge Sentence 1 Section 91(1) – Unlawful possession of a firearm Judicially stayed 2 Section 86(1) – Careless use of firearm 6 months concurrent 3 Section 95(1) – Possession of prohibited firearm and ammunition 30 months concurrent 4

Section 264.1(1)(1)(a) – Threatening to cause death or bodily harm 3 months concurrent 5 Section 270(1)(a) – Assaulting a peace officer in the execution of his duties 3 months concurrent 7 Section 95(1) – Possession of a firearm knowing it was obtained by an offence 12 months concurrent Total: 30 months [ 44 ] Mr. Earle spent 110 days in custody on remand in relation to these charges. I give him credit at one and one-half to one for five and one-half months, leaving 24 and one-half months to serve. [ 45 ] In addition to the sentence of incarceration, I make the following ancillary orders: 1. There shall be a DNA Order pursuant to

section 487.051(3) (

b) of the Criminal Code requiring the Offender to provide the number of bodily substances that are reasonably required for the purpose of forensic DNA analysis. 2. I have considered Crown’s request to grant an Order under section 109(3) of the Criminal Code and, given the circumstances of this case, I prohibit Jason Earle from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [ 46 ] I thank counsel for their capable assistance throughout the trial and during sentencing submissions. _____________________________ Vikas Khaladkar Justice