Peter Garth Hill, 2011 NSPC 28

PROVINCIAL COURT OF NOVA SCOTIA Citation: Peter Garth Hill, 2011 NSPC 28 Date: 2011/02/11 Docket: 2089492, 2089494, 2089496 2089498, 2089500, 2089502 Registry: Dartmouth Between: Her Majesty the Queen v. Peter Garth Hill Judge: The Honourable Judge Frank P. Hoskins, J.P.C. Revised decision: The text of the original decision has been corrected on June 8, 2011 and replaces the previously distributed decision . Oral decision: February 1, 2011 Charges: On or about the 4 th day of September, 2009, at or near Sackville, Nova Scotia, did unsafely store a firearm, to wit a 32 calibre Harrington and Richardson Arms Company handgun under

Section 117(

h) of the Firearms Act thereby contravening Section 5(1)(

a) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , contrary to Section 86(2) of the Criminal Code . And further that at the same time and place aforesaid did unlawfully have in his possession a weapon, to wit a 32 calibre Harrington and Richardson Arms Company handgun for a purpose dangerous to the public peace, contrary to Section 88(1) of the Criminal Code .

And further that at the same time and place aforesaid did unlawfully have in his possession a prohibited weapon, to wit a 32 calibre Harrington and Richardson Arms Company handgun, contrary to Section 90(1) of the Criminal Code . And further that at the same time and place aforesaid were an occupant of a motor vehicle, to wit a Dodge Ram, in which he knew that there was a firearm, to wit 32 calibre Harrington and Richardson Arms Company handgun, contrary to Section 94(1) of the Criminal Code .

And further that at the same time and place aforesaid did possess a firearm, to wit 32 calibre Harrington and Richardson Arms Company handgun, knowing he was not the holder of a license under which he may possess it and a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code .

And further that at the same time and place aforesaid did have in his possession a firearm, to wit 32 calibre Harrington and Richardson Arms Company handgun, while he was prohibited from doing so, by an Order of Prohibition, pursuant to

Section 115 of the Criminal Code dated at Halifax Regional Municipality on the 11 th day of May 2005, contrary to

Section 117.01(1) the Criminal Code . Counsel: Cheryl Byard for the Crown J. Patrick Atherton for the Defence By the Court: (orally) Introduction: [ 1 ] This is the sentencing decision in the matter of The Queen and Peter Garth Hill . [ 2 ] Mr. Hill has pleaded guilty to the offences of possession of a firearm, contrary to section 94(1) of the Criminal Code , and possession of a firearm while prohibited, contrary to

section 177.01 of the Criminal Code . These are serious indictable offences as reflected in Parliament’s imposition of a maximum sentence of ten years of imprisonment. [ 3 ] These offences arose from a search incident to arrest of Mr. Hill while he was operating a motor vehicle in a public place. [ 4 ] In assessing the issue of what is the appropriate and just disposition for these offences and offender, I have carefully considered and reflected on the following: (

a) The circumstances surrounding the commission of the offences and the offender, Mr. Hill; (

b) The relevant Criminal Code provisions, including sections 718 , 718.1 , 718.2 and 742.1 of the Criminal Code ; (

c) The submissions of counsel; and (

d) The Pre-Sentence Report dated October 12, 2010, and the letters submitted by Mr. Atherton, Defence Counsel. Circumstances Surrounding the Offence [ 5 ] Constable Cook of the Halifax Regional Police had reliable source information that the accused, Peter Garth Hill, (Mr. Hill) would be attending the Halifax area to sell cocaine and was in possession of cocaine and known to carry firearms. [ 6 ] Constable Cook, along with other members of the Central and West Divisions of the Halifax Regional Police, and the Quick Response Unit, located Mr. Hill in the area of Lacewood Drive in Halifax.

He was operating a Dodge Ram pickup truck with Nova Scotia license plate marker ESE 815. [ 7 ] A query on CPIC revealed that Mr. Hill was the registered owner of the vehicle. The police observed a passenger in the front seat, later identified as Jonathan Hill. The police observed the accused, Mr. Hill, attend an address on Lacewood, wherein he met with an unknown male. Mr. Hill was observed opening a cargo toolbox attached to the rear of the pick-up truck and retrieved an unknown object in a brown paper bag. Mr. Hill and the unknown male entered the pick-up truck for approximately three to five minutes.

The two men then exited the cab of the pick-up truck, returned the unknown object to the toolbox. [ 8 ] The police then observed the two men attend the rear truck of another vehicle parked in the parking lot. Mr. Hill re-entered his pick-up truck with his passenger and went to Cobequid Road in Sackville. [ 9 ] The police followed them to an address and observed both Mr. Hill and his passenger exit the vehicle. Police set up in the area at 8:33 pm. A high risk take- down was conducted on both Mr. Hill and his passenger, with the assistance of the K-9 unit. Both men were arrested, Chartered and cautioned.

They declined the opportunity to engage legal counsel. [ 10 ] Constables Cook, Sheppard and Stevenson conducted a search of Mr. Hill’s vehicle as an incident to arrest for officer safety purposes. [ 11 ] Constable Stevenson opened the rear toolbox, at which time he observed a firearm on the driver’s side of the toolbox, slipping out of a brown paper bag. It was a black 32 caliber revolver. The firearm was not loaded and it was cleared and rendered safe. [ 12 ] Constable Sheppard located an unknown white powdered substance, packaging and clear capsules next to a functioning digital scale.

[ 13 ] Further investigation revealed that Mr. Hill was subject to a life-time Firearms Prohibition Order dated May 11, 2005, which was in relation to a conviction under sections 5(1) and 5(2) of the Controlled and Drugs and Substances Act . [ 14 ] These facts were not disputed by the Defence. However, Mr. Atherton, for Mr. Hill, stressed that Mr. Hill is not being sentenced for any drug offences, but rather only for the possession of a firearm. [ 15 ] While I am mindful that Mr.

Hill is not charge with having committed an offence under the Controlled Drugs and Substances Act , and that the possession of illicit substances does not form part of the firearm charge, it is, however, appropriate in my view, to consider all of the circumstances surrounding the commission of the offence, for contextual purposes, which includes the presence of illicit substances. But again to emphasize what Mr. Atherton said, he is being sentenced for the offence of possession of a firearm. Mr. Hill’s Criminal Record [ 16 ] Mr. Hill’s criminal record consist of the following prior convictions: (

a) November 1987: Is not a prior conviction, however, it was a Conditional Discharge for

section 301.1(1)(

e) wherein he received six months probation; (

b) His prior convictions begin in 1988 for breaching section 42(2) of Food and Drug Act , he was fined $2,500; (

c) In July of 1988, possession of stolen property. He received a Suspended Sentence, with Probation for two years, and restitution in the amount of $1,200 and 150 hours of community service work; (

d) His fourth conviction was registered on September 11, 1989 for breaching section 145(3)(b), failing to comply. His fine was $150, that’s failing to comply with a Court Order; (

e) Fifth conviction was in September 11, 1989 for breach of section 145(3)(b), it’s failing to comply, again with a Court Order, he was fined $150; (

f) His sixth conviction was recorded, or the next conviction was recorded in June of 1990, which would be his fifth, possession of stolen property over $1000. He received 30 days, coupled with Probation for six months with 200 hours of community service work; (

g) June 25, 1996 in Moncton, New Brunswick, he was sentenced for having committed conspiracy to traffic in a narcotic, contrary to section 4(1) of the Narcotic Control Act . He received 14 months custody; (

h) June 25, same date, 1996, in the same place, Moncton, New Brunswick, he was sentenced for the offence of possession of a narcotic for the purpose of trafficking, contrary to section 4(2) of the Narcotic Control Act . He received 30 days custody, consecutive to the sentence that he was serving; (

i) On May 2005, he was sentenced to have breached section 5(2) of the Controlled Drugs and Substances Act for possession for the purpose of trafficking. He was imprisonment for five years; (

j) And on the same date, he was also sentenced for having breached section 5(1) of the Controlled Drugs and Substances Act for trafficking and he was imprisoned for five years and that was concurrent to the 5(2). [ 17 ] Mr. Hill has a total of nine prior convictions, which spans from 1988 to 2005. [ 18 ] Mr. Hill received statutory release in 2008, and was sent back to Dorchester September 11, 2009 as a result of the current charges and released in 2010. His parole ended May 2010. Aggravating Factors [ 19 ] There are several aggravating factors surrounding the circumstances of the offences and offender, including the following: (

a) The nature of the offence, and possession of a handgun in a motor vehicle in a public place; (

b) The accused possesses a criminal record; (

c) The accused was on parole, for serious offences, where he was serving a substantial period of imprisonment; and (

d) The accused was subject to a life-time Firearm Prohibition Order. [ 20 ] The fact that Mr. Hill was on a firearm prohibition is particularly aggravating. In R. v. Jones, [2005] O.J. No. 2662, at paragraphs 19 to 21 , Justice R.G. Juriansz J.A. observation is apposite: The primary function of a prohibition order is the protection of the public. Parliament, in providing for prohibition orders, recognized that the community is placed at danger by the unlawful possession of firearms. The very presence of guns in the community poses a risk that they may somehow come to be used.

The mere possession of guns by persons who have already committed crimes that provide the basis for prohibition orders constitutes a great danger to the community. A prohibition order works to the advantage of the offender when being sentenced on the conviction that gives rise to the order. By addressing the protection of society, the making of such an order allows the Court to pay greater heed to the rehabilitation of the

offender, and reduce the weight on the need to separate the offender from society. The relative weighting of the objectives of sentencing is different when the offender is being sentenced for breach of the prohibitionorder. On this occasion, the offender has demonstrated an unwillingness to be governed by court orders and has not responded tosociety's efforts to rehabilitate him. It has become apparent that society cannot be protected by a prohibition order, and so the objectiveof separating the offender from society to protect the community acquires greater weight. Mitigating Factors [21] The following mitigating factors have also been considered: (

a) Mr. Hill has pleaded guilty and has accepted responsibility for committing the offences; (

b) He has a relatively positive pre-sentence report, which I will refer to in a moment; and (

c) Mr. Hill’s ability to be gainfully employed and his family support are both mitigating factors. Release Conditions [22] I have considered the fact that Mr. Hill has been on a release mechanism for an extended period of time. [23] In R. v. Spencer (2004), (ON CA), 72 O.R. (3d) 47, [2004] O.J. No. 3262, (C.A.), at paragraph 43, DohertyJ.A. recognized that stringent bail conditions may be taken into account as a mitigating factor: In deciding whether any delay in the completion of the process should mitigate sentence, it is appropriate to consider an offender's bailterms.

The more stringent those terms, the more likely it will be that any delay in completion of the process will have some mitigatingeffect on sentence. Indeed, even absent delay, particularly stringent bail conditions can have a mitigating effect on sentence. [24] Similarly, in R. v. Downes (2006), (ON CA), 205 C.C.C. (3d) 488, (Ont. C.A.), Rosenberg, J.A. stated, atparagraph 33: Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as arelevant mitigating circumstance.

However, like any potential mitigating circumstance, there will be variations in its potential impact onthe sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. [25] Obviously, a fixed formula cannot be applied because of the wide range of factors that must be considered, including thenumber and nature of the conditions of release and the length of the time that the accused was subject to the conditions.

Thus, a flexibleapproach is necessary in addressing the extent to which restrictive bail conditions is considered a mitigating factor. [26] In the present case, Mr. Hill was released on a recognizance with conditions. He was not subject to restrictive conditions; suchas, house arrest or a curfew condition. However, he was constrained by the recognizance for an extended period of time, as he enteredinto the recognizance on September 11, 2009. Pre-Sentence Report [27] As stated, Mr. Hill’s pre-sentence report is relatively positive. [28] Mr.

Hill is approximately, at the time of the writing of this report, at least 43 years of age. He had been a member of theCanadian Military for approximately six years. He was stationed at several bases in Canada, Germany and Norway. In 1992, he livedwith a person in a two year common-law relationship, which ended in 1996; and as a result of that union they have one child who iscurrently 17 and resides in the area. [29] Also, in March of 2002, Mr. Hill commenced a relationship with Ms. Richards and they have a six year old daughter, Madison. Mr.

Hill was incarcerated in Springhill, Renous, and Dorchester from 2005-2008 and was sent back to Dorchester in September 2009 andMr. Hill indicated that he was released in 2010 and his parole ended in May 2010. [30] Mr. Hill currently lives with his mother in Scotch Village, but at times resides with his girlfriend Jennifer Snow on occasion inStewiacke. The couple has dated since 2008 and Ms. Snow is a single mother with two children ages nine and 12. [31] Ms. Jennifer Snow was interviewed and indicated that Mr.

Hill, Peter, as she referred to him, “is a hard worker who loves towork” and that is born out by the pre-sentence report, not only by Ms. Snow, but by others as well. “He gets along with the children andwill do things with them that they find interesting” and she went onto say that she was quite shocked to hear about these charges andapparently they have a great relationship from her perspective. The officer of the report also spoke to Gladys Hill, Mr. Hill’s mother,who explained the situation in the family and she made the note that Peter, her son: . . . was always a good kid who never gave us any troubles.

I think, on occasion, he gets in with the wrong people. He’s a very hardworker. He needs to get his life in order so he can take custody in Madison because she’s 67 years of age and has health issues. [32] It would appear that Mr. Hill has had no difficulty in the past becoming gainfully employed. He obviously has a good workethic and is often thought highly from those who employ him. According to Bertha Rose, who is employed as a secretary with the

Labourer's International Union of America, Local 615, she confirmed that Mr. Hill is a member in good standing, indicating “Peter is avery qualified member who has numerous skills and abilities. As a result, he has regular and constant work”. Again, there seems to beno doubt that Mr. Hill has the ability to be gainfully employed because of his skill set and because of his tremendous work ethic. Thereis no denying that. [33] The author of the pre-sentence report noted that Mr.

Hill presented himself in an open and honest manner, displaying a goodlevel of insight with regard to his problems in the past and he acknowledged his plea of guilty to the possession of the revolver in thevehicle. [34] It is stated in the pre-sentence report and at the conclusion of the assessment that: Peter Garth Hill is a 43 year old repeat offender who is before the Court on a charge of Occupant of a Motor Vehicle and Possession ofFirearm while Prohibited. The subject is gainfully employed on a consistent basis with the Labourer’s International Union of Americaand is in a stable relationship.

The offender noted that his main focus is to gain custody of his six year old daughter, who currentlyresides with his mother. Mr. Hill presents as a suitable candidate for community supervision. [35] As stated, it is a relatively positive pre-sentence report in the sense that it provides some insight into Mr. Hill’s potential, hisabilities, the support that he has from his past and future employers as well as his current relationship and support from his mother, whohas always been supportive. Positions of the Parties [36] The position of the Crown is that Mr.

Hill should be sentenced to a term of institutional imprisonment for 12 months for bothoffences. The Crown contends that a 12 month period of institutional imprisonment is justified in this case based on the circumstancessurrounding the commission of the offences and the offender, Mr. Hill. The Crown further request the following corollary orders: aDNA order, a life -time Firearm Prohibition Order and a forfeiture order as well. [37] The Position of the Defence is that Mr. Hill should receive a 12 month conditional sentence of imprisonment in the community.

The Defence argues that a conditional sentence order is an appropriate and just disposition having regard to all of the circumstancessurrounding the offences and Mr. Hill. The Law [38] The Supreme Court of Canada has enunciated the correct approach to sentencing in R. v. M. (C.A.) (1996), (SCC), 105 C.C.C. (3d) 327 and Parliament has enacted new legislation which specifically sets out the purpose and principles ofsentencing.

Thus, it is to these sources and the common law jurisprudence that courts must turn in determining the proper sentence toimpose. [39] It is trite to say that the imposition of a just and appropriate sentence can be as difficult a task as any faced by a trial judge. However, as difficult as the determination of a fit sentence can be, that process has a narrow focus. It aims at imposing a sentence thatreflects the circumstances of the specific offence and the attributes of the individual offender.

Indeed, sentencing is not based on groupcharacteristics, but on the facts relating to the specific offence and offender as revealed by the evidence adduced in the proceedings. [40] Generally, it is recognized that a fit sentence is the product of the combined effects of the circumstances of the specific offencewith the unique attributes of the specific offender. [41] Although the sentencing process is highly contextual and necessarily individualized process, the judge must also take intoaccount the nature of the offence, the victims and community.

As Lamer C.J. (as he then was), noted in M. (C.A.), sentencing requiresan individualized focus, not only of the offender, but also of the victim and community as well. [42] As stated, the Court must impose a sentence that addresses the two elements of proportionality, that is the circumstances of theoffence and the circumstances of the offender and thereby reach a sentence that fits not only the offence but also the offender. [43] The central issue here is whether or not it is appropriate, having regard to all of the circumstances surrounding the offences andthe personal circumstances of Mr.

Hill to impose a conditional sentence in accordance with

section 742.1 of the Criminal Code, havingaccepted guilty pleas to the aforementioned firearm offences. [44] In deciding this issue I have considered the fundamental purpose of sentencing as clearly and succinctly expressed in section718, of the Criminal Code, which sets out the six objectives a – f inclusive. The fundamental principle as stated in

section 718.1 of theCriminal Code, which is the sentence must be proportionate to the gravity of the offence and degree with the responsibility of theoffender. And the other sentencing principles as set out in

section 718.2 of the Criminal Code, which stipulates that a sentence should beincreased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or offender. [45] I have also considered and applied the principle of restraint which underlies all of these statutory provisions. [46] Neither the Crown nor the Defence is under a burden to establish that a conditional sentence is either appropriate orinappropriate in the circumstances, as the Court should consider all relevant evidence, no matter by whom it is adduced. [47]

Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (

a) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

(

b) The Court must impose a term of imprisonment of less than two years; (

c) The safety of the community would not be endangered by the offender serving the sentence in the community; and (

d) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 48 ] It should be stressed that no offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment, nor should there be presumptions in favour of or against a conditional sentence for specific offences, including firearm offences. [ 49 ] In the present case, a penitentiary sentence is not necessary nor is a suspended sentence with probationary measures appropriate.

In fact, having determined that the appropriate range of sentence is a term of imprisonment of less than two years, I now must consider whether it is appropriate for Mr. Hill to serve his sentence in the community. In other words, the first two pre-conditions are not an impediment for consideration of a conditional sentence. It comes down to, as Mr. Atherton ably and fairly argued, the safety of the community and whether or not it would be consistent with the fundamental purpose and principles of sentencing. [ 50 ] I am mindful that the requirement in

section 742.1(

b) that the judge must be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence, and not the primary consideration in determining whether a conditional sentence is appropriate. [ 51 ] In making this determination, I have considered the risk posed by Mr. Hill, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Thus, the factors that I have taken into account are: (

a) The risk of Mr. Hill re-offending; and (

b) The gravity of the damage that could ensue in the event of re-offence. [ 52 ] I realize that consideration of the risk posed by Mr. Hill should include the risk of any criminal activity, and it is not limited solely to the risk of physical or psychological harm to individuals. [ 53 ] With respect to the risk of Mr. Hill re-offending, I have reached the conclusion that there is a substantial risk of Mr. Hill re- offending should he receive a conditional sentence.

I have reached this conclusion after having given the matter careful and thorough consideration, which included all of the circumstances surrounding the offender, Mr. Hill, and the offences. [ 54 ] I have considered the nature and number of the previous convictions contained in Mr. Hill criminal record; that he was on parole when he committed the current offences; that he was on a prohibition order not to possess a firearm; and lastly, that he was serving a significant sentence for having committed serious offences; namely, trafficking in illicit substances. Moreover, Mr.

Hill has two convictions for non-compliance of court orders. [ 55 ] A disregard for court orders and a tendency to re-offend are important considerations in assessing the risk to the community. Mr. Hill’s record and the facts of the offences in the present case demonstrate a disregard for court orders and a propensity to re-offend. [ 56 ] In my view, evidence of past conduct while serving a sentence in the community is a significant factor for consideration in assessing future conduct. Thus, notwithstanding Mr.

Hill’s compliance with his present recognizance, in relation to the current charges, which were not restrictive or onerous, I am of the view that there is a real and substantial risk that he will re-offend, as he has done in the past. [ 57 ] With respect to the gravity of the damage that could ensue in the event of re-offence, non-compliance of court orders should be considered as a breach of trust: the trust that the Court reposed in the accused and more generally the public.

Consistent with Fundamental Principles of Sentencing [ 58 ] It should be noted that even if I was satisfied that the safety of the community would not be endangered by Mr.

Hill serving his sentence in the community, I am not satisfied having regard to all of circumstances surrounding the offences and the offender that a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 . [ 59 ] I recognize that a conditional sentence can provide significant denunciation and deterrence, and as a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. However, in my view, the specific circumstances surrounding Mr.

Hill and the current offences require an institutional period of incarceration, as it will be the only suitable way in which to express society's condemnation of the offender's conduct and/or to deter similar conduct in the future. [ 60 ] In the present case, the objectives such as denunciation and deterrence are particularly pressing, therefore, an institutional period of incarceration is necessary. As previously stated, it is of significance that Mr. Hill was serving a sentence, on parole, when the offences occurred, and subject to a firearm prohibition, which had been imposed in May 2005.

While I am mindful that he was in possession of an unloaded firearm, the risk to the public is still present, as it can be easily used to threaten others. Indeed, the possession and use of firearms in our community is a real and pressing concern for everyone in the community. This concern has been reflected in the recent amendments in the Criminal Code , wherein Parliament has expressed its concern. [ 61 ] A custodial sentence is required here to ensure that Mr.

Hill, and likeminded individuals, understand and appreciate that possessing firearms, especially while prohibited by court order will have severe consequences.

[62] Currently, there are approximately 40 offences under the Criminal Code for which a mandatory minimum sentence ofimprisonment must be imposed. The two offences for which Mr. Hill is being sentenced here today do not impose minimum sentences;namely sections 94 and 117.01 of the Criminal Code. However, the maximum punishment for these indictable offences is imprisonmentfor a term not exceeding ten years.

Thus, the seriousness of these offences is reflected in Parliament’s imposition of a ten yearmaximum. [63] It seems, from reading the case law, that firearms are often sought from individuals well immersed in the milieu of the criminalsub-culture because those involved in criminal activity do not purchase their firearms from well-regulated sources such as licensed gundealers.

Further, it appears that the proliferation of handguns within the criminal subculture is often connected with the illicit drug trade,which imbues violence and threats of violence against not only those individuals immersed in the criminal sub-culture, but also the lawabiding citizenry. The handgun is inherently dangerous, as it can be the easily concealed, transported and can be readily accessible foruse. [64] The proliferation of firearms in our community, especially the use of handguns, by individuals in committing serious violentcrimes has been an ongoing concern regarding issues of public safety.

Unfortunately, it has become an all too regular occurrence in ourcourts for judges to express society’s abhorrence of guns in our community. For example, in R. v. Johnston, 2009 NSSC 218, JusticeCacchione observed: Recently it would seem that not a week has gone by without guns being discharged in areas frequented by members of our community. In fact the day before the date originally set for this sentencing the local newspaper carried yet another story of someone being shot. That shooting occurred on the Upper Partridge River Road as well.

The same road where Brandon Beals and Martez Provo were killedand where the present offence which I am dealing with occurred. Again the community, because of the fear instilled in it by thepresence and use of handguns, was loathed to assist the police in their investigation. A review of local newspaper articles relating to gun related shootings in HRM since this incident shows that gun related shootings are onthe rise. In 2007 there were 27 gun related shootings. In 2008 there were 29. This year to date there have been 40 such shootings.

The risk posed by such shootings to law abiding citizens who are going about their daily business is high and increasing. A clearmessage must be sent to those in our community who believe in living by the gun and settling their disputes through the use of a gun. The message is that there will be severe consequences for those who behave in such a fashion. The sentence imposed today should reflect society’s abhorrence of those who decide to live by the gun and use the gun to settle disputes. [65] Similarly, the Ontario Court of Appeal has recognized the serious problem of handguns in Toronto. In R. v.

Danvers (2005), (ON CA), 199 C.C.C. (3d) 490, R.P. Armstrong J.A., writing for the Court, at paragraphs 77-78, expressed the viewthat: In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant: It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, moreespecially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plaguethis city and must be deterred, denounced and stopped.

Only the imposition of exemplary sentences will serve to deter criminals fromarming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of paroleeligibility. Society must be protected from criminals armed with deadly handguns. There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongestpossible terms.

The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the communityand must be addressed. [66] The proliferation in the use of firearms in the commission of offences in the Halifax Regional Municipality has also been agrave concern for the Dartmouth Provincial Court, for several years.

A review of the daily court dockets for the Dartmouth ProvincialCourt would reveal an alarming number of firearm offences being regularly prosecuted, which are often connected with other CriminalCode and Controlled Drugs and Substances Act offences; including, such offences as, murder, assault, robbery and trafficking of illicitsubstances. [67] It seems that the chronic use of firearms within the criminal drug subculture is enveloped in gratuitous violence, whichembraces notions of mistrust and paranoia, which justifies the use or possession of a firearm as a necessary tool, like a cell phone, in thedealing illicit drugs.

In fact, it is often stated in court and in the cases that the accused had possession of the gun for protection. [68] Parliament has expressed its concern with public safety issues relating to the use of firearms by imposing minimum sentencesfor the use of firearms by amending the Criminal Code.

It would appear that the underlying rationale for mandatory minimum sentencesis the fear of a jail sentence as the principle deterrent to the criminal use of a firearm. [69] The Parties, the Crown and Defence, have not provided or submitted any cases to support their respective positions. [70] However, in the short time available, I did consider a number of cases, including the decision of R. v. Muise, 2008 NSSC 340, [2008] N.S.J. No. 507, and the decision in R. v. Phinn, [2010] N.S.J.

No. 253, which both emphasized that in gun crimes theprinciples of sentencing to be emphasized are denunciation and both specific and general deterrence. [71] I have also considered a number of authorities from Ontario involving the possession of firearms. These included thefollowing: R. v. Grant, (ON CA), [2006] O.J. No. 2179 (C.A.); R. v. Fletcher, [2008] O.J. No. 697; R. v. Beckford,[2008] O.J. No. 1781; R. v. Kelsey, [2008] O.J. No. 3879; R. v. Dass, [2008] O.J. No. 1161; R. v. J.G., [2005] O.J. No. 4599; and R. v.Carranza, [2004] O.J. No. 6041.

[72] The sentences imposed range from 12 months to eight years, depending upon the aggravating and mitigating factors in theparticular cases. Moreover, some firearm offences are more serious than others, as reflected in the imposition of the range of minimumpunishments. [73] It should be noted that the combination of drugs and firearms are considered to be an extremely aggravating factor, as noted inR. v. Dass, supra, wherein Justice Clark quoted, with approval, Justice Esptein’s comments in R. v. Manning, [2007] O.J. No. 1205, atparagraph 16: A further aggravating factor is the fact that Mr.

Manning was in possession of crack cocaine either for personal use or for the purposes oftrafficking. Decisions such as R. v. Grant, (ON CA), [2006] O.J. No. 2179 and R. v. J.G., [2005] O.J.

No. 4599 havereinforced the obvious fact that drugs and weapons are a deadly combination and have treated it as an aggravating factor when it comesto arriving at a fit sentence. [74] It should be noted that in this case that I did not consider those cases because I was dealing with only the offence of possessionof a firearm and not possession of a firearm and possession of an illicit substance. [75] In the presence case, the gun was unloaded, and there was no readily accessible ammunition.

This is of significance in myconsideration of whether or not a 12 month period of imprisonment is an appropriate and just disposition for this offence and for thisoffender. The absence of this aggravating feature was a critical factor in my assessment of the appropriateness of the 12 month sentencefor Mr. Hill. In other words, had the gun been loaded and/or there was readily accessible ammunition, the sentence would have beenhigher to commensurate with the fundamental principles of sentencing.

The sentence would have been higher had I been sentencing Mr.Hill for offences of drugs as well, as that would have commensurate with the fundamental principles of sentencing of the cases that Ireferred to earlier. [76] In the final analysis, having considered all of the circumstances surrounding the offender, Mr. Hill, and the current offences, afit and proper punishment is a 12 month period of imprisonment to be served in a Provincial institution. DNA Order [77] With respect to the imposition of a DNA Order.

The Crown has also ask this court to exercise its discretion and order a DNAorder in respect to these offences, which are designated secondary offences under the DNA legislation. It is not being contested by Mr.Hill. In any event, I have considered the criminal record of Mr. Hill, the nature of the offences and the circumstance surrounding thecommission and the impact of an order on a person’s privacy and security of a person and I am satisfied, after having done so, that itwould be in the best interest of the administration of justice to make the order. I now make the order.

Firearm Prohibition for Life [78] Notwithstanding that Mr. Hill is currently subject to a life firearm prohibition, he will be subject to a life time firearmprohibition order for having committed these offences as well. [79] There is also an order of forfeiture that is in relation, only, to the gun. [80] With respect to Victim Fine Surcharge, under section 737(5) of the Criminal Code, I waive the imposition of the Victim FineSurcharge because it would create an undue hardship for Mr. Hill, who is being sentenced today for a 12 month custodial sentence. Sentence [81] The breakdown of the sentence is as follows: (

a) With respect to the section 94(1): 12 months; (

b) With respect to the

section 117.01(1): 12 months, which is concurrent to the section 94(1), on the basis of the totality ofprinciple. [82] That is the sentence, of the Court. ___________________________________ Frank P. Hoskins, J.P.C.