R. v. S, 2022 NLSC 112

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. S tewart , 2022 NLSC 112 Date : July 5, 2022 Docket : 202006G0140 Her Majesty The Queen v. Ernest Stewart Before: Justice Garrett A. Handrigan Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: June 24, 2022

Summary: Ernest Stewart pleaded guilty to three offences involving the use of a weapon on September 13, 2020: carrying a concealed weapon; assault while threatening to use a weapon; and having in his possession a weapon for a purpose dangerous to the public peace. Mr. Stewart has a lengthy and serious criminal record, some of which is directly related to these charges. The Court sentenced Mr. Stewart to 12 months’ imprisonment for the assault charge, and 4 months’ imprisonment for the other two offences, to be served concurrently with the 12 months for the first offence. It also gave Mr.

Stewart a credit of 18 days for the 12 days he spent on remand, at the rate of 1.5 days for each of them; and it made various ancillary orders. Appearances:

Alison J. Manning Appearing on behalf of the Crown Marcus A. Evans, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Clarke, (17 October 2012) Grand Bank 0812A-00043, 0812A-00132, & 0812A-00151 (N.L. Prov. Ct.);R. v. Wheeler, (4 November 2011) Corner Brook 1310A00994 (N.L. Prov. Ct.); R. v. Whitten (1993), (NL SC), 112Nfld. & P.E.I.R. 144, 1993 CarswellNfld 185, (S.C. (T.D.)); R. v. P. (H.J.) (1995), (NL CA), 133 Nfld. & P.E.I.R. 20,1995 CarswellNfld 306 (C.A.) STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On December 30, 2020 the Crown filed a Bill of Indictment in this Court charging Ernest Stewart with five offences: 1. breakand entry into a dwelling house and assaulting the inhabitants with a weapon; 2. carrying a concealed weapon; 3. assault whilethreatening to use a weapon; 4. entering a dwelling house with intent to commit an indictable offence; and, 5. having in his possession aweapon for a purpose dangerous to the public peace. Mr.

Stewart pleaded not guilty to all offences on January 21, 2021 but changed hisplea to guilty on counts 2, 3 and 5 on March 21, 2022. [2] The Crown withdrew counts 1 and 4 on June 24, 2022 and I heard from the Crown and Mr. Stewart on the same date as toappropriate sentences for the remaining counts. I reserved my decision on those sentences until now. The Issue [3] What sentences will I impose on Mr. Stewart for these offences? The Law General Principles [4] Any discussion of sentences for criminal offences must start with the statement of principles that appears in

section 718 andfollowing sections of the Criminal Code of Canada, R.S.C. 1985, c. C-46. Those principles encompass broad considerations fromdenunciation, through deterrence, reparation, rehabilitation and the general promotion of a sense of responsibility in offenders for thelosses they cause their victims. [5] Also of concern are proportionality, the alternatives to incarceration where they are both available and appropriate, and thefactors that mitigate or aggravate the offence.

The overriding consideration throughout these sections is protecting the public and thechallenge is to achieve it, in the legislative context and the circumstances of the offence. Ultimately, the sentence must fit the offenceand the offender. [6] Communicating to accused persons and others of like mind that they must refrain from criminal activity is one of the primarygoals of sentencing. Denunciation is also important.

Overall, deterrence, and especially general deterrence, and denunciation must bestressed when sentencing offenders who threaten others with violence, violate the sanctity of their homes and terrorize them bybrandishing knives and other weapons at them; as Mr. Stewart did here. Carrying a Concealed Weapon Statute [7] Section 90 (2) (

a) of the Criminal Code sets the maximum punishment for someone who carries a concealed weapon at fiveyears, when punished by indictment, as Mr. Stewart is. It prescribes no minimum penalty. Case Law [8] In R. v. Clarke, (17 October 2012) Grand Bank 0812A-00043, 0812A-00132, & 0812A-00151 (N.L. Prov. Ct.), Porter, J.noted that “carrying the concealed weapon” was the “most serious offence” of the seven offences that the accused before him hadcommitted. The learned judge reviewed the “jurisprudence cited by counsel” and noted that it “provides a useful range of sentence”. He

concluded from his review that “…a…sentence of between 60 days and five months” was appropriate and sentenced the accused to 60days imprisonment. (See generally paragraphs 11-17 of Clarke) Assault while Threatening to Use a Weapon Statute [9]

Section 267 (

a) of the Criminal Code sets the maximum punishment for someone who “carries, uses or threatens to use aweapon or an imitation thereof” at ten years, when punished by indictment, as Mr. Stewart is. It prescribes no minimum penalty. Case Law [10] In R. v. Wheeler, (4 November 2011) Corner Brook, 1310A00994 (N.L. Prov. Ct.) Gorman, J., as is his wont, provided acomprehensive review of sentencing precedents and concluded for assault with a weapon that the “range” was “…from a suspendedsentence with probation…to 2 years imprisonment” (paragraph 91).

But he noted two caveats to this observation: “These precedentssupport the conclusion that a prescriptive range has thus far not been established for the offence of assault with a weapon” (paragraph 92)[Emphasis added]; and, “[i]t is difficult to set a precise range from these precedents, but when a knife is used in committing an assault,the range, generally, appears to be one of 12 to 24 months imprisonment” (paragraph 94).

Possession of Weapon Dangerous to the Public Peace Statute [11] Section 88 (2) of the Criminal Code of Canada sets the maximum punishment for a person who “carries or possesses aweapon…for a purpose dangerous to the public peace or for the purpose of committing an offence” at ten years, when punished byindictment, as Mr. Stewart is. It prescribes no minimum penalty. Case Law [12] In R. v.

Whitten (1993), (NL SC), 112 Nfld. & P.E.I.R. 144, 1993 CarswellNfld 185, (S.C. (T.D.)) Barry, J.,then of this Court, sentenced the accused to “…one year’s imprisonment…” for having possession of a weapon for a purpose dangerousto the public peace after he heard from Crown counsel who submitted that “…a sentence in the range of two years” was warrantedbecause of the seriousness of the case; and from defence counsel who submitted that “…an appropriate sentence would be in the range ofsix to twelve months”. [13] Barry, J. justified sentencing Mr. Whitten to imprisonment this way: 24.

I conclude that, not only is a period of incarceration necessary for general deterrence, to deter others from shooting up their homesand neighbourhoods in drunken states, it is also necessary in this case for specific deterrence, to send a message to you that Court Ordersmust be obeyed and that, if you are going to commit unlawful acts while under the influence of alcohol, you are going to have to acceptthe consequences. [14] I note Barry, J.’s reference to Mr. Wheeler’s erratic behaviour while drunk as an aggravating factor. Mr.

Stewart was alsoheavily intoxicated when he committed these offences, as my review of the facts shortly will show. [15] This is the law I will apply to the issue I stated earlier. I turn now to analyze that issue, starting with the background to it. Analysis Background [16] The Crown and defence submitted an Agreed Statement of Facts to me, in support of the charges against Mr. Stewart. It reads: September 13, 2020 Leanne Blundon and her boyfriend Keith Hennebury were home at 2 Smallwood Drive, Grand Bank, NL. Around12:54 a.m. there was a knock at the door.

Keith Hennebury went to the porch closing the interior door behind him. When he opened thedoor to the outside the Accused, Ernest Stewart, was in the door. He pushed Keith Hennebury and pulled out a knife. After Stewartpulled out the knife that had been concealed in his inside his jacket, he told Hennebury “I don’t think your dog wants to sleep”.Hennebury described the knife as a large hunting knife with a dark wooden handle. Cameron Hoskins was standing behind Stewart onthe front step of the house. Stewart asked if they were going to bed and Hennebury said they were.

That was when Stewart pushed thedoor and brandished the knife toward Hennebury. Hennebury managed to push Stewart back and to close the door on the arm in whichStewart was holding the knife. This caused Stewart to pull back his arm and allowed Hennebury to lock the outside door. AfterHennebury closed the door Stewart and Hoskins ran from the residence. They went to William Rogers’ residence for a short time afterleaving the Hennebury/Blundon residence. Keith Hennebury does not know the Accused well he only met him two to three times beforethis incident. Cameron Hoskins provided a statement to the police.

Hoskins had been drinking at a friend’s house when Ernest Stewart showed up. Thetwo of them were walking around Grand Bank before they went to Keith Hennebury’s house. Hennebury is a friend of Hoskins. ErnestStewart knocked at the door and it was answered by Keith Hennebury. Cameron Hoskins heard them arguing and Keith Hennebury yellto call 911. He was stood behind Stewart so he did not see what happened. After they left the two did go to William Rogers’ residence.

Hoskins confirmed that there was [a] knife, [that] the Accused had told him about it and had shown it to him that evening. It was a hunting knife with a fixed blade that the Accused had in his pocket. Cst. Gavin Layman was responding to the call from Blundon and Hennebury. As he pulled into Grand Bank, he found the Accused and Cameron Hoskins intoxicated and walking down the side of the road. The Accused was arrested at 1:50 a.m., given his

Section 10(

b) rights to counsel and police Caution, transported back to Marystown RCMP detachment and provided access to duty counsel as he had requested. At 11:15 a.m. on September 13, 2020 Ernest Stewart provided an audio/video caution[ed] statement to Cst. Frank McLaughlin. The Accused could not remember what he had done the night before beyond that he was drinking in Fortune before he was dropped off in Grand Bank by his grandmother, where he met up with Cameron Hoskins. He could not remember where had met Hoskins but did recall walking around Grand Bank with him until he was arrested on Riverside Drive.

He denied having a knife or going to William Rogers[’] residence. Cst. Gilbert Hiscock was contacted by a resident of Grand Bank who had found a hunting knife with a dark wooden handle discarded in the grass on the side of Riverside Drive. The knife was seized from the area where the Accused had been arrested by the police and shown to Keith Hennebury who confirmed it was the hunting knife the (sic) Ernest Stewart had lunged at him with. [ 17 ] Crown counsel read the Statement for the record at Mr.

Stewart’s sentencing hearing on June 24, 2022 and provided the original document for the Court, signed by Crown counsel and Mr. Stewart, whose counsel witnessed his signature. Based on Mr. Stewart’s pleas of guilty and the facts as provided in the Agreed Statement, I found Mr. Stewart guilty of the three offences remaining on the Bill of Indictment. [ 18 ] This is the background to the charges. I turn now to discuss appropriate sentences for Mr. Stewart for these offences. Discussion [ 19 ] Mr. Stewart was born October 19, 1984 and is thirty-seven years old.

He lives with his grandmother at 6 Ocean View Street, Grand Bank, NL. Mr. Stewart has a close relationship with his grandmother but little or no contact with his father, mother and siblings. Nor does Mr. Stewart have much contact, if any, with his five children, who either live with their mothers or were taken into custody from hospital when they were born. Mr. Stewart does not support his children. [ 20 ] Presently, Mr. Stewart is in a relationship with a young lady from Grand Bank. His partner has two children now, but not for Mr.

Stewart and is pregnant with a third child expected to be born in approximately four months. Mr. Stewart is the father of this child and he and his partner appear to be close. She was in Court for Mr. Stewart’s sentencing hearing to show her support for him. [ 21 ] I ordered a Pre-Sentence Report for Mr. Stewart and the Regional Probation Officer filed it as an “update” of a Report he provided to the Provincial Court in Grand Bank on March 3, 2021. He noted Mr.

Stewart’s comment that “…little has changed in his life at the present time, and [he] believed this Pre-Sentence Report would serve as an update to the information presented in the March 3, 2021 report”. I also note this comment from the Officer: “The accused has been supervised by this worker since April 7, 2021, commencing with a Conditional Sentence Order for six months followed by Supervised Probation which is due to expire on October 6, 2022. In this time, the accused has exhibited no evidence of non-compliance; always presenting in a respectful and courteous manner”. [ 22 ] Mr.

Stewart was expelled from high school in 2001 and did not obtain a high school diploma but eventually completed his high school “equivalency” at the College of the North Atlantic and Western College in Stephenville. Mr. Stewart reported to the Regional Probation Officer about his employment over the last two decades since he left high school. His work has been largely “manual labour” and most recently he worked seasonally with JBK Enterprises in Fortune, NL offloading boats. [ 23 ] A representative of JBK described Mr.

Stewart for the Officer as a “good and dedicated worker noting they experienced no issues with him”. The representative acknowledged they were aware of Mr. Stewart’s legal problems and their impact on his availability but agreed they would accommodate him “because he is a good worker”. Mr. Stewart anticipated being incarcerated for these offences so he informed JBK that he would not be returning this season. He currently has “no steady income” and intends to apply for Income Support when he is released from custody. [ 24 ] Mr.

Stewart is beset by problems with drugs and alcohol and is beginning, with the assistance of professionals available through the Burin Peninsula Health Care Centre in Burin, NL to recognize the need for their intervention and advice. The Regional Probation Officer stated that the “…main change in what was presented by the accused in his March 3, 2021 Pre-Sentence Report, is that he understands the need for ongoing counseling to address his mental health issues”. [ 25 ] The Officer elaborated on the change he sees in Mr.

Stewart: He states he is open to counseling and believes this would benefit his recovery and rehabilitation moving forward. As aforementioned the accused throughout his life, has discontinued counseling when he was feeling better, only to turn to the maladaptive coping mechanism of substance abuse. The accused now states, “I am open to counseling…I feels it is essential to my rehabilitation”.

In terms of moving forward in a pro-social manner this is an impressive revelation for the accused, as combining consistent mental health counseling with psychopharmacological treatment helps ensure a holistic treatment regimen that aids the accused’s mental wellness. [ 26 ] The Officer also noted that Mr. Stewart has empathy for Ms. Blundon and Mr. Hennebury who he agrees were likely

traumatized by his actions on September 13, 2020: When speaking of his current offences the accused expressed great remorse. He feels empathy for the victim[s] noting “I am afraid of the long-term effects”, meaning the potential long-term effects of his actions on the victim[s]. He also noted, “I take full responsibility for my actions…I feels poorly about them…what I did was unjustified”. [ 27 ] The Officer believes that Mr.

Stewart is a “suitable candidate for…probation” and that “Supervised Probation would again serve as a positive mentoring mechanism for any counseling that may be included within his conditions”. [ 28 ] For all the positive things that may be said about Mr. Stewart, and there are some indicators that he may rehabilitate himself, he has a serious record of conviction, both in this Court and in the Provincial Court. The Crown submitted certified copies of his record from both courts. The following table details those convictions: Supreme Court of Newfoundland and Labrador, Grand Bank, NL No.

Date Offence Disposition 1 March 10, 2010 Break & Entry 36 months in Jail Provincial Court of Newfoundland and Labrador, Grand Bank/St.

John’s/Stephenville, NL Date Offence Disposition 2 April 7, 2021 Fraud Conditional Sentence 6 months, consecutive, Probation 12 months consecutive, compensation order for $450. 3 April 7, 2021 Fraud Conditional Sentence 6 months, concurrent, Probation 12 months concurrent. 4 April 7, 2021 Forgery Conditional Sentence 6 months, concurrent, Probation 12 months concurrent. 5 April 7, 2021 Forgery Conditional Sentence 6 months, concurrent, Probation 12 months, concurrent. 6 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 7 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 8 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 9 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 10 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 11 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 12 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 13 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 14 April 7, 2021 Uttering Forged Documents Conditional Sentence, 6 months, concurrent, Probation 12 months, concurrent 15 March 14, 2018 Assault with Weapon Order for DNA, prohibition for firearms for 10 years concurrent, jail 150 days consecutive, surcharge of $200. 16 March 14, 2018 Breach of Probation Jail 90 days consecutive, surcharge of $200. 17 March 14, 2018 Uttering threats to cause death or bodily harm Jail 90 days concurrent, surcharge of $200. 18 March 14, 2018 Criminal harassment by repeatedly communicating with the person.

Order for DNA, prohibition for firearms for 10 years concurrent, jail 91 days consecutive, surcharge of $200, no contact with named persons while in custody and surcharge of $200. 19 March 14, 2018 Uttering threats to cause death or bodily harm Jail 90 days concurrent, no contact with named persons while in custody and surcharge of $200. 20 March 14, 2018 Breach of Probation Jail 90 days consecutive, no contact with named persons while in custody and surcharge of $200. 21 March 14, 2018 Using firearm in commission or attempted commission of indictable offence.

Jail 365 days consecutive, no contact with named persons while in custody, surcharge of $200, DNA order and firearms prohibition for 10 years concurrent. 22 March 14, 2018 Mischief relating to property Jail 30 days consecutive, no contact with named persons while in custody, surcharge of $200.

23 March 14, 2018 Mischief relating to property Jail 1 day (time served), compensation order for $150, probation 12 months concurrent, surcharge of $100. 24 December 1, 2014 Public Mischief Jail 14 days (time served), surcharge $100. 25 February 19, 2014 Possessing property obtained by crime. Surcharge of $100, jail 168 days consecutive, probation of 12 months, consecutive. 26 February 19, 2014 Uttering threats to cause death or bodily harm.

Surcharge of $100, jail 90 days consecutive, probation 12 months concurrent, order for DNA and prohibition on firearms for 10 years consecutive. 27 February 19, 2014 Uttering threats to cause death or bodily harm. Surcharge of $100, jail 90 days concurrent, probation 12 months concurrent, order for DNA and prohibition on firearms for 10 years concurrent. 28 June 14, 2012 Dangerous operation of vehicle.

Prohibited from driving for 1 year consecutive, jail 4 months consecutive. 29 June 14, 2012 Theft under $5000 Jail 2 months consecutive. 30 June 14, 2012 Uttering threats to damage or destroy property Order for DNA, Suspended sentence, probation of 1 year concurrent. 31 June 14, 2012 Causing a disturbance Fine of $100. 32 January 5, 2010 Trafficking in a controlled drug or substance.

Order for DNA, jail 55 days consecutive, prohibition on firearms 10 years consecutive, jail 55 days (time served), prohibition on prohibited weapons for 99 years concurrent. 33 January 5, 2010 Failure to comply with a condition of an undertaking or recognizance. Jail 6 months consecutive. 34 September 24, 2007 Mischief relating to property. Restitution of $500, jail 21 days consecutive. 35 December 21, 2005 Breaking and entering and committing an indictable offence. Jail 18 months consecutive, order for DNA. 36 December 21, 2005 Breaking and entering and committing an indictable offence.

Jail 18 months consecutive, order for DNA. 37 December 21, 2005 Failure to comply with probation order. Jail 1 year, concurrent. 38 December 21, 2005 Failure to comply with probation order. Jail 1 year, concurrent. 39 December 21, 2005 Failure to comply with probation order. Jail 1 year, concurrent. 40 August 4, 2004 Breaking and entering, other than a dwelling house. Jail 4 months, consecutive, probation of 2 years. 41 August 4, 2004 Mischief by damaging property. Jail 30 days, concurrent, probation of 2 years. 42 August 4, 2004 Breaking and entering, other than a dwelling house.

Jail 4 months, consecutive, probation of 2 years. 43 August 4, 2004 Breaking and entering, other than a dwelling house Jail 4 months, consecutive, probation of 2 years. 44 August 4, 2004 Trespassing at night. Jail 30 days, concurrent, probation of 2 years. 45 August 4, 2004 Trespassing at night. Jail 30 days, concurrent, probation of 2 years. 46 August 4, 2004 Failure to comply with a condition in an undertaking or recognizance. Jail 1 month, consecutive, probation of 2 years. 47 August 4, 2004 Failure to comply with a condition in an undertaking or recognizance. Jail 1 month, consecutive, probation of 2 years.

Provincial Court of Newfoundland and Labrador, Youth Court, Grand Bank, NL 48 February 26, 2003 Failure to comply with a disposition. Jail 30 days, consecutive.

49 February 26, 2003Possessing controlleddrug or substance. Jail 6 days, concurrent, time served. 50 November 22,2002 Failure to comply with adisposition. Jail 30 days, consecutive. 51 November 22,2002 Failure to comply with adisposition. Jail 30 days, concurrent. 52 November 22,2002 Failure to comply with adisposition. Jail 30 days, concurrent. 53 November 22,2002 Escaping lawful custodyJail 30 days, consecutive. 54 November 22,2002 Breaking and enteringand committing anindictable offence. Jail 30 days, consecutive. 55 November 22,2002 Mischief by damagingproperty.

Jail 30 days, consecutive. 56 November 15,2002 Failure to comply withcondition of anundertaking orrecognizance. Open custody, 30 days concurrent. 57 November 15,2002 Possessing controlleddrug or substance. Open custody, 60 days, consecutive. 58 November 15,2002 Failure to comply with adisposition. Open custody, 30 days, consecutive. 59 November 15,2002 Failure to comply withcondition of anundertaking orrecognizance. Open custody, 30 days concurrent. 60 November 15,2002 Possessing propertyobtained by crime. Open custody, 30 days, consecutive. 61 November 15,2002 Failure to comply with adisposition.

Open custody, 30 days, consecutive. 62 November 15,2002 Failure to comply with adisposition. Open custody, 30 days, consecutive. 63 November 15,2002 Intimidation by threatsor threatening violence. Probation 12 months, open custody 60 days,consecutive.64 February 8, 2002 Theft under $5000.

Probation 6 months.65 May 19, 1999 Failure to comply withcondition of undertakingor recognizance Open custody, 1 month, consecutive. 66 May 19, 1999 Failure to comply withcondition of undertakingor recognizance Open custody, 1 month, consecutive. 67 May 19, 1999 Failure to comply withcondition of undertakingor recognizance Open custody, 1 month, consecutive. 68 May 19, 1999 Theft under $5000 Open custody, 1 month, consecutive.69 May 19, 1999 Theft under $5000 Open custody, 1 month, consecutive. [29] The Regional Probation Officer noted the extent and severity of Mr.

Stewart’s criminal record in his Report and summarized itthis way: Criminal Records Information obtained from the RCMP as well as from the Provincial Court of NL indicates that the accused has beenpreviously convicted of offences such as break and enter; escape lawful custody; public mischief; failure to comply with undertaking;failure to comply with probation order; traffic in scheduled substance; dangerous operation of a motor vehicle; theft under $5000;uttering threats, causing a disturbance, possession of property obtained by crime, use of imitation firearm, criminal harassment, assaultwith a weapon, fraud, forgery and uttering forged document. [30] The Officer’s recital, even without examining the details of Mr.

Stewart’s criminal record, stands as a powerful indictment ofhim. I find his record even more egregious when I consider the offences of which he has been previously convicted that are directlyrelated to those before this Court now. The Officer referred to some of these offences. [31] I note, in particular, break and enter; uttering threats; causing a disturbance; use of an imitation firearm; criminal harassment;and assault with a weapon, for many of which Mr. Stewart has already served substantial periods of incarceration.

But I also note twooffences from his Provincial Court record to which the Officer makes no reference: trespassing at night and intimidation by threats orthreatening violence, in particular. [32] Steele, J.A., of our Court of Appeal commented on the relevance of a criminal record in R. v. P. (H.J.) (1995), (NL CA), 133 Nfld. & P.E.I.R. 20, 1995 CarswellNfld 306 (C.A.):

14. A criminal record surely indicates diminished prospects for rehabilitation. Furthermore, a criminal record, and particularly where the offences are similar, is the omen that immediately alerts the sentencing judge to the reality that the offender has become a serious threat to the community.

How great the risk of course, depends on the nature of the offences and the circumstances. … [ 33 ] Later in the same judgment, the learned justice cautioned that a sentencing judge should temper his reliance on the criminal record so that the result is neither disproportionate to the severity of the offence nor to the antecedents of the offender. Overall, he proposed balancing both factors when deciding on a sentence: 18. A review of case law makes it clear that a criminal record ought not to be the inducement to impose a harsh sentence out of proportion to the gravity of the offence.

It is equally proper to point out that a criminal record for similar offences, that makes an accused a high-risk offender, is a burden and an impediment he inevitably carries creating an aggravating circumstance at a subsequent sentence hearing. If a fit sentence is one that entails a punishment proportionate to the crime committed, it is also one that encompasses the axiom that the sentence must befit the criminal. [ 34 ] The Crown says there is much about this matter that is aggravating for Mr. Stewart and little that can be said by way of mitigation. As to the latter, it says that Mr.

Stewart’s guilty plea stands alone for my consideration but there are other factors that are quite serious and oblige me to impose sentences of some severity on him. [ 35 ] As to the aggravating factors, the Crown stresses Mr. Stewart’s lengthy and related criminal record; the need for deterrence, especially of Mr. Stewart particularly, but also of broader consideration, too; the serious impact of Mr. Stewart’s actions on Ms. Blundon and Mr. Hennebury, neither of whom were associated with Mr. Stewart previously; Mr.

Stewart’s reckless behaviour toward them; and the risk of serious harm that he threatened them with and exposed them to. [ 36 ] Overall, the Crown recommends sentences of imprisonment for all three offences, quantified as: • 12-15 months for assault, while threatening to use a weapon, contrary to

section 267 (

a) of the Criminal Code ; • 6-8 months for carrying a concealed weapon, contrary to section 90 (2) of the Criminal Code ; and • 6-8 months for having possession of a weapon for a purpose dangerous to the public peace, contrary to section 88 (2) of the Criminal Code . [ 37 ] It also recommends that the sentences for the breaches of sections 90 (2) and 88 (2) be served concurrently to the sentence for the assault charge; and it requests ancillary orders placing Mr.

Stewart on supervised probation for two years after he is released from prison; collecting DNA samples from him; prohibiting him from possessing weapons; and forfeiting the knife the police seized during this investigation. [ 38 ] Mr. Stewart concedes that he should be imprisoned for these offences but he says that he and his associate did not intend to go Ms. Blundon’s and Mr. Hennebury’s home but ended up there inadvertently. He says they were heavily intoxicated at the time and neither meant to nor caused any physical harm to the residents of 2 Smallwood Drive, in Grand Bank. In fact, Mr.

Stewart suggested that their mistaken arrival at the home was caused in part by the similarity to one another of the homes in the area since they were actually looking for an acquaintance who lived nearby. [ 39 ] Mr. Stewart submits that assault while threatening to use a weapon is less serious than assault with a weapon . He also claims that he has taken responsibility for his actions and says he is truly remorseful and genuinely regrets what happened.

In particular, he notes the comments of the Regional Probation Officer in his Report that I referred to earlier, that bear repeating: When speaking of his current offences the accused expressed great remorse. He feels empathy for the victim noting, “I am afraid of the long-term effect”, meaning the potential long-term effects of his actions on the victim. He also noted, “I take full responsibility for my actions…I feels poorly about them…what I did was unjustified”.

The accused indicates he has “a more positive attitude no…I understand I used alcohol and drugs to mask mental health issues”. [ 40 ] The sentences the Crown recommends, especially for assault, while threatening to use a weapon are within the ranges that I set out earlier in these reasons. However, I will temper them somewhat by the positive Pre-Sentence Report that the Regional Probation Officer filed for my consideration. Time will tell if these events mark a turning point in Mr. Stewart’s life.

He seems to have gained some insight into the underlying problems he has been dealing with for the last two decades and he appears to be resolved to do something about them. [ 41 ] In the result, I sentence Mr. Stewart as follows: • 12 months’ imprisonment for the breach of

section 267 (

a) of the Criminal Code ; • 4 months’ imprisonment for the breach of section 90 (2) of the Criminal Code , to be served concurrently with the first sentence; and • 4 months’ imprisonment for the breach of section 88 (2) of the Criminal Code to served concurrently with the first and second sentences.

[ 42 ] As well, I place Mr. Stewart on supervised probation for two years from the date he is released from prison during which he will report to and be under the supervision of the Regional Probation Officer and will comply with the statutory conditions, not be under the influence of alcohol or drugs not medically prescribed and all other conditions recommended by the Officer, especially those directed to his mental health and his association with negative associates.

As well, it is a condition of his probation that he have no contact whatsoever with Leanne Blundon and Keith Hennebury, except as initiated by them and that he does not attend at their place of residence, unless they invite him there. [ 43 ] Mr. Stewart will provide the number of samples of bodily substances that are reasonably required for forensic DNA under s. 487.051 (3) of the Criminal Code . The order is in Form 5.04 of the Criminal Code . As well, I prohibit Mr.

Stewart under section 109 (2) of the Criminal Code from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years; and I further order that the hunting knife the police seized as a result of this investigation be forfeited to her Majesty in the Right of Canada to be disposed of as directed.

Summary and Disposition [ 44 ] Ernest Stewart pleaded guilty to three offences involving the use of a weapon on September 13, 2020: carrying a concealed weapon; assault while threatening to use a weapon; and having in his possession a weapon for a purpose dangerous to the public peace. Mr. Stewart has a lengthy and serious criminal record, some of which is directly related to these charges. [ 45 ] The Court sentenced Mr. Stewart to 12 months’ imprisonment for the assault charge, and 4 months’ imprisonment for the other two offences, to be served concurrently with the 12 months for the first offence.

It also gave Mr. Stewart a credit of 18 days for the 12 days he spent on remand, at the rate of 1.5 days for each of them; and it made various ancillary orders. Order [ 46 ] In the result, I order that: 1. Ernest Stewart serve 12 months’ imprisonment for the breach of

section 267 (

a) of the Criminal Code , less a credit of 18 days for the 12 days he spent on remand, at the rate of 1.5 days for each of them. 2. Ernest Stewart serve 4 months’ imprisonment for the breach of section 90 (2) of the Criminal Code , to be served concurrently with the first sentence; 3. Ernest Stewart serve 4 months’ imprisonment for the breach of section 88 (2) of the Criminal Code to served concurrently with the first and second sentences. 4.

Ernest Stewart be placed on supervised probation for two years from the date he is released from prison, during which time he will comply with the statutory conditions and these additionally: a. he will report to and be under the supervision of the Regional Probation Officer; b. he will not be under the influence of alcohol or drugs not medically prescribed; c. other conditions recommended by the Regional Probation Officer, especially those directed to his mental health and his association with negative associates; d. he will have no contact whatsoever with Leanne Blundon and Keith Hennebury, except as initiated by them; and e. he will not attend at 2 Smallwood Drive, Grand Bank, or wheresoever Leanne Blundon and Keith Hennebury reside, unless they invite him there. 5.

Ernest Stewart will provide the number of samples of bodily substances that are reasonably required for forensic DNA under s. 487.051 (3) of the Criminal Code . The order is in Form 5.04 of the Criminal Code . 6. Ernest Stewart is prohibited under section 109 (2) of the Criminal Code from possessing any firearm, cross-bow, prohibited

weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years. 7. The hunting knife seized as a result of this investigation is forfeited to her Majesty in the Right of Canada to be disposed of as directed by the RCMP. _____________________________ Garrett A. Handrigan Justice