Her Majesty the Queen - v. -, 2020 SKPC 31

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 31 Date: August 25, 2020 Informations: 991064748, 991124197, 991061247, 991061246, 991084465, 991060613 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nathaniel McKenzie Appearing: Randene Zielke For the Provincial Crown Sean Watson For the Federal Crown Jill Drennan For the Accused SENTENCING DECISION N.P. EVANCHUK , J INTRODUCTION [ 1 ] Nathaniel McKenzie entered a guilty plea to the charge of being an occupant in a motor vehicle in which he knew there was a prohibited firearm, contrary to section 94(1) (a)(

i) of the Criminal Code [ Code ]. He also entered guilty pleas to various breaches of his release conditions and taking a motor vehicle without consent contrary to sections 145(3) and 335 of the Code , respectively.

Additionally, McKenzie pled guilty to simple possession of methamphetamine contrary to section 4(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 . [ 2 ] The facts of the offences are agreed to by counsel and the only remaining issue is determining a fit sentence as it relates to the

section 94 offence. All parties submit that any sentences for the remaining offences ought to run concurrent to the firearm sentence. FACTS [ 3 ] Nathaniel McKenzie is 26 years old but was 24 when the first offence occurred. He has no criminal record. At approximately 5:20 a.m. on August 2, 2018, members of the Regina Police Service [RPS] noticed a vehicle driving erratically through residential streets and alleys in the north portion of the city. Officers commenced a traffic stop on the vehicle where they found McKenzie in the front passenger seat.

In plain view, RPS members noticed a ‘dime bag’ containing a white powder behind the passenger seat and two cartridges of live .22 LR caliber ammunition in the front passenger console cupholder. The two occupants of the vehicle were detained and a search was conducted on the vehicle with the consent of the driver. Upon searching the trunk, a sawed-off .22 LR caliber Cooey model 60 firearm was observed and seized. The barrel of the firearm had been sawed-off, the rear stock portion was removed, and the handle was covered by red tape.

Photos of the firearm were entered as Crown exhibits on the sentencing. [ 4 ] In the course of his detention, search, and arrest, McKenzie acknowledged that the firearm belonged to him and that the driver of the vehicle had no prior knowledge of its existence. Additionally, he remarked to the arresting officers that he was “down with TS”, in reference to the Terror Squad street gang. As part of the search incident to McKenzie’s arrest, thirty-one live .22 LR cartridges were discovered in his front pant pockets. McKenzie was charged for various firearms and drug charges and released from custody on an undertaking.

McKenzie consents to these facts as it relates to the allegation of being a passenger in the vehicle with knowledge of the impugned firearm. [ 5 ] On August 8, 2018, McKenzie was arrested after being observed as a passenger of a stolen vehicle. While being processed at RPS cells, a small amount of methamphetamine was found on his person, for which he has entered a guilty plea. Further breaches were committed between August 14, 2018 and September 10, 2018 for failing to comply with his bail conditions.

McKenzie has also admitted to breaches of his bail conditions between October 1 to October 16, 2019 by failing to report to supervision. The matter had been set numerous times for sentencing, but McKenzie put off resolution. According to his counsel, these delays have been attributed to his ongoing struggle with addiction. ISSUES [ 6 ] The only issue before me is the determination of a fit sentence. I must consider whether the principles of denunciation and deterrence favour a sentence of incarceration and if so, for what duration.

This must be done within the societal context of illegal firearm possession in Saskatchewan. Conversely, I must also weigh whether the personal circumstances of McKenzie are mitigating enough to favour the principles of rehabilitation and restraint and not sentence him to institutional incarceration. Ultimately, do the principles of sentencing favour a sentence of actual incarceration or a sentence served in the community by way of a conditional sentence?

Position of the Parties Provincial Crown [ 7 ] The Provincial Crown submits that a global 36 month sentence of incarceration, less credit for time served on remand (57 days) is appropriate. Counsel submits that the sentence be 36 months in relation to the firearms offence with all other charges being served concurrently. It is conceded by the Provincial Crown that the offence before the court reflects a lower moral culpability than a

section 95 offence. However, counsel submits there are aggravating factors in this case that the court must consider. The Provincial Crown asserts that the transport of a dangerously altered firearm through residential neighborhoods demands a sentence focused on deterrence and denunciation. In this vein, specific emphasis was placed on: (

a) the high volume of useable rimfire ammunition seized from McKenzie’s person, and (

b) the overabundance of altered long guns in Regina. The Provincial Crown also emphasized that the case against McKenzie was overwhelming and that the strength of the evidence ought to minimize the mitigating effect of the guilty plea.

[ 8 ] When addressing the moral culpability of McKenzie, counsel submitted that the presence of an altered firearm and ammunition where public safety was put at risk place the offence at the ‘true crime’ end of the spectrum. These types of offences, as opposed to less culpable regulatory crimes, demonstrate increased moral blameworthiness and require an added focus on denunciation and deterrence. [ 9 ] Additionally, the Provincial Crown submits that the court should place weight on the consistent failure of McKenzie to comply with release conditions.

The Provincial Crown argues that the breaches of bail conditions demonstrate that McKenzie is not a suitable candidate for a community-based sentence, and that only a lengthy period of incarceration in a federal penitentiary can properly hold him accountable. Counsel also seeks the imposition of a lifetime firearms prohibition pursuant to

section 109 for the

section 94 offence. [ 10 ] The Federal Crown submits that a small fine or concurrent sentence is appropriate for the possession of methamphetamine offence. Defense Counsel [ 11 ] Ms. Drennan, on behalf of McKenzie, submits that a lengthy conditional sentence, followed by a period of probation, is appropriate. Defence counsel noted that her client had a very troubled upbringing. McKenzie and his six sisters were raised by his mother, as his father had been institutionalized when McKenzie was young . McKenzie’s mother is an alcoholic and exposed her son to substance abuse as a child.

During his early childhood and adolescence, McKenzie was physically and emotionally abused. He began experimenting with cocaine, MDMA, and other illegal narcotics from the age of 13 onward. His drug use appeared to have been made more problematic due to childhood depression, anxiety, and suicidal ideation. [ 12 ] McKenzie’s victimization as a youth, along with his addictions and mental health struggles, were further compounded by a learning disability. He continues to struggle with reading comprehension to this day.

Despite these challenges, by age 20 McKenzie had achieved a level of normalcy in his personal life. He had obtained employment as a welder and was raising a son with his former common-law spouse. For a brief period of time, he was a contributing member of society and a law-abiding citizen. However, the breakdown of this relationship sent McKenzie into a tailspin of addiction and crime sometime in 2018. [ 13 ] Defence counsel argues that despite some personal setbacks, McKenzie has made significant steps towards sobriety and mental wellness.

In particular, she points to the success he had while participating in the Community Alternatives to Remand [CAR] program, as well as positive family and community supports. McKenzie filed a reference letter from Shannon Harvey-Benoit of the Salvation Army who attests to the steps that McKenzie has taken to gain insight into his challenges. He has also expressed willingness to continue with addictions programming and treatment.

Although the COVID pandemic has limited the availability of in-person meetings, McKenzie filed a letter from the Saskatchewan Health Authority confirming that he has scheduled meetings with ADS to address his substance use issues. Defence counsel submits, and I accept, that McKenzie is genuinely remorseful for his actions.

Analysis [ 14 ] The fundamental purpose of sentencing is to protect society, contribute to respect for the rule of law, and maintain a just, peaceful and safe society by imposing sanctions that: • denounce unlawful conduct, • deter the offender and others from committing offences, • separate offenders from society were necessary, • assist in their rehabilitation, • provide reparations for the harm done, and • promote a sense of responsibility and acknowledgement of the harm done to victims or to the community: Code ,

section 718 . [ 15 ] It is also fundamental that a sentence is proportionate to the gravity of the offence and the degree of responsibility of the

offender [ Code ,

section 718.1 ]. A fit sentence must demonstrate parity in that similar circumstances should attract similar sentences. A sentencing court must also be mindful to follow the above principles and purposes of sentencing with restraint and common humanity. Any decision imposed should account for relevant aggravating or mitigating circumstances applicable to the offence and the offender. [ Code ,

section 718.2 (a)] [ 16 ] Because McKenzie has requested that I impose a conditional sentence, I must undertake the analytic framework spelled out in R v Proulx , 2000 SCC 5 , 140 CCC (3d) 449 [ Proulx ].

Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: • the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; • the court must impose a term of imprisonment of less than two years; • the safety of the community would not be endangered by the offender serving the sentence in the community; and • a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. [ 17 ] The Supreme Court in Proulx recognized that a conditional sentence can serve both punitive and restorative objectives.

However, incarceration will be a better choice where the need for punishment is paramount and restorative objectives are elusive (para 100). [ 18 ] Counsel for both parties have emphasized the broad range of available sentences for firearm offences and agree that a spectrum exists for firearm sentences. On one end is regulatory-type offences involving an otherwise law-abiding responsible gun owner.

On the other end is ‘true crime’ offences where a person is engaged in criminal conduct that poses a real and immediate danger to the public. [ 19 ] Crown counsel directed the court to the following cases which were of assistance: 1. R v Charles , 2014 SKPC 189 . In Charles , Judge Gray considered an offender who had been convicted after trial of possession of a loaded prohibited handgun under

section 95 of the Code as well as being an occupant in a vehicle in relation to the handgun pursuant to

section 94 . The handgun in that case was a loaded 9mm pistol that was secreted under the passenger floor mat and the accused had been driving through a residential area. The offender had no prior criminal record, had been active in the community, and had a five-year-old daughter. The Court sentenced the accused to three years for possession and three years concurrent for being an occupant in the vehicle. A 10-year

section 109 firearm prohibition was also imposed. 2. R v Kachuol , 2017 BCCA 292 . In Kachuol , the offender’s original conditional sentence of two years less one day was overturned for a penitentiary sentence of three years for an offence under

section 95 of the Code . The British Columbia Court of Appeal found that this was a case at the ‘true crime’ end of the spectrum. The offender was driving through downtown Vancouver at night with a loaded 357 Magnum handgun readily accessible in the car’s centre console. The Court found that the only purpose of the handgun was to “threaten or inflict serious bodily harm or death, if and when considered necessary” (para 26) and that such possession was a “tragedy in gestation” ( ibid ).

Even though the offender had support from individuals in the community and the potential to rehabilitate, the Court said the case was not “exceptionally unique or even favourably distinguishable” from other cases that imposed penitentiary sentences with a specific focus on deterrence and denunciation (para 29). 3. R v Nur , 2013 ONCA 677 , 303 CCC (3d) 474, affirmed 2015 SCC 15 . In Nur , the offender was 19, had no criminal record, and was sentenced pursuant to

section 95 for possession of a loaded and chambered prohibited .22 LR pistol. The handgun had an oversized magazine containing over twenty cartridges and Nur had been menacing members of the public outside of a community centre. When police arrived to investigate, the offender took flight from officers and further put members of the public in danger. Although the mandatory minimum sentences under

section 95 were found to be unconstitutional, the Supreme Court upheld the sentence of 40 months incarceration as appropriate for instances of ‘true crime’ firearms offences. When time spent on remand was applied, the accused received a one day’s time served sentence. The majority of the Supreme Court in Nur held that “it remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in [Mr, Nur’s case]” (para 120). [ 20 ] McKenzie’s counsel has asked the court to consider the following cases in support of a conditional sentence:

1. R v Sellars, 2018 BCCA 195. In this case the accused was convicted of three firearms offences, including under section 94(1)following the search of his vehicle and person. The search resulted in the seizure of a loaded .32 caliber pistol, nine live .32 calibercartridges, and other weapons. The prohibited firearm was chambered with six live cartridges and was secreted under the passenger seatof the offender’s truck and within reach of the offender. After trial, the accused had been sentenced to a suspended sentence andprobation order for three years for the

section 95 offence along with concurrent sentences for the other matters. The British ColumbiaCourt of Appeal overturned the original sentence and substituted a conditional sentence of two years less one day. In Sellars, the offenderwas a member of the Xat’sull First Nation, with a multigenerational family history of substance abuse, familial instability, fragmentationand breakdown, and premature death (para 3). The appellate court focused their reasons for the conditional sentence on Gladue factors(R v Gladue, (SCC), [1999] 1 SCR 688 [Gladue]) that were specific to the offender. In completing a Proulx analysis,the Court found that the 718.2(

e) factors outweighed the typical factors of denunciation and deterrence (para 37). Thus, the Court founda specific exception to the range of sentence established by previous cases. 2. R v Ali, 2012 ONSC 7013 [Ali]. In this case the offender, a 30-year-old man with no criminal record, pled guilty to charges undersections 86, 94(1), and 90 of the Code in relation to the possession and transport of a .22 LR pistol. The offender was the holder of aRestricted Possession and Acquisition Licence but was not authorized under the Firearms Act, SC 1995, c 39 [Act] to transport thefirearm in the impugned manner.

The sentencing court noted that the offender had complied with strict bail conditions without breachfor over two years and had maintained employment while awaiting trial. He had purchased the firearm legally from an approved seller,and the possession was found to be on the regulatory rather than ‘true crime’ range of offences. The sentencing judge imposed aconditional sentence of 18 months. [21] I have also considered the recent Alberta decision of R v Buffalo, 2020 ABQB 41 [Buffalo].

In Buffalo, the accused pledguilty to offences under sections 92(1), 94(1), and 117.01 for possession of a duffel bag which contained six restricted handguns and twoboxes of ammunition. The accused had come into contact with the firearms and ammunition essentially as a bailee for a third party. Theoffender had a very serious criminal history, including a previous conviction for manslaughter. In his decision to sentence the offender toan 18 month conditional sentence, Justice Mah placed emphasis on Gladue and Ipeelee (R v Ipeelee, 2012 SCC 13, 280 CCC (3d) 265)factors.

It was the presence of specific Gladue considerations, and the need for restorative justice pursuant to

section 718.2(

e) of theCode that persuaded the sentencing court to impose a community-based disposition. [22] Having reviewed the relevant authorities, I observe that Parliament and the courts have deemed that firearm offences in the‘true crime’ category attract lengthy periods of incarceration. It is also apparent from the Ali and Buffalo decisions that a conditionalsentence is available in some circumstances, particularly where Gladue factors exist.

It is important to note that sentencing is anindividualized process; each offender must be sentenced on the basis of the particular facts of the case, along with their own personalcircumstances. [23] I must therefore consider whether a conditional sentence is appropriate in the circumstances. Although McKenzie comesbefore the Court with no criminal history, he has consistently failed to comply with release conditions and committed further substantivecriminal offences while on release. This distinguishes him from the accused in Ali. Moreover,

section 718.2(

e) is not engaged in this caseto the same extent as McKenzie is not an Indigenous Canadian. Given the facts of the case, there cannot be a legal and safe purpose forthe possession of the firearm and ammunition; the firearm was illegal and posed a serious risk to public safety. Coupled with the amountof ammunition, McKenzie’s actions fall squarely in the ‘true crime ‘category.

The Supreme Court and the Saskatchewan Court ofAppeal have stated that sentencing courts must acknowledge the inherent danger of illegal firearms in our communities and send amessage that the possession, transportation, and use of illegal guns must not be tolerated. As such, I find that a conditional sentence inthis case is not appropriate and that a period of actual incarceration is required. Mitigating Factors [24] Having determined that a period of incarceration is appropriate, I will now review the mitigating factors of McKenzie. Mostsignificantly, the offender comes before the Court with no criminal record.

Although he has entered guilty pleas to numerous charges, heis now 26 years old and appearing for sentencing for the first time. Further, although McKenzie has struggled with unemployment andaddictions since the breakdown of his family unit, he has previously been employed full-time and has been a productive member ofsociety. His counsel submits, and I accept, that he intends to take up his vocational training and employment when his matters are at anend so as to better himself and provide for his son. [25] McKenzie’s upbringing was extremely difficult.

He was subjected to abuse for some time at the hands of caregivers and wasexposed to addictive behavior by his mother. For the most part, his own addictions stem directly from unresolved childhood trauma andloss. This lingering trauma, while not excusing his dangerous behavior, does provide a broader context to the mental state of McKenzie

at the relevant times in his life when the offences were committed. [ 26 ] Although the timeline between charge and plea was drawn out, McKenzie did take responsibility for his actions at the time of arrest through spontaneous utterances and later expressed a desire to plead guilty through his lawyer. The Provincial Crown placed sincere emphasis on what she perceived as significant delay in bringing this matter to a resolution. With respect I do not find this affects the mitigating result of the plea. McKenzie is, by his own admission, a drug addict.

His inactions, namely his inability to make appointments, attend treatment, or otherwise comply with straightforward conditions underscore the pernicious nature of methamphetamine addiction. Simply put, he has taken responsibility for the charges, has waived his right to a trial, and that is, by law, a mitigating factor I must consider. Aggravating Factors [ 27 ] As noted by the Provincial Crown, there are several factors in this present case that are aggravating. When arrested on August 2, 2018, thirty-one cartridges were located inside McKenzie’s pockets.

In addition, two more live cartridges were found in the console of the vehicle. The accessibility of such a large quantity of rifle ammunition adds to the objective foreseeability of danger faced by society from illegal firearm possession. Although no citizens were harmed through McKenzie’s use of this firearm, there was a clear threat to the community at large. Firearm crime, and specifically crime involving altered long guns, is increasingly prevalent in Regina and in Saskatchewan generally.

The proximity of the ammunition, the inferred purpose of the alterations, and the systemic problem of firearm violence in Saskatchewan merit a strong message of deterrence. [ 28 ] Equally troubling was the fact that McKenzie was travelling through residential areas at the time of the offence, heightening the risk of serious harm to the public. The Act and the Code outline procedures for the safe handling, storage, and use of firearms to ensure society can feel secure that firearms owners pose no danger to their fellow citizens.

McKenzie’s actions breached all social norms respecting the safety and control of long guns. [ 29 ] Finally, when weighing the aggravating and mitigating factors, I will address the submissions from McKenzie’s counsel that I ought to consider the fact that the firearm itself was not loaded. On this point I simply note that while the presence of a chambered round is an aggravating factor, its absence is not mitigating. Had the firearm been unloaded and safely stored with a trigger lock, one might view the unloaded firearm as less of a threat.

However, the high volume of ammunition secreted in McKenzie’s pockets underscore the ‘true crime’ nature of the offence. The fact that the gun was not loaded is not mitigating in my view. Sentence [ 30 ] I also must consider the fundamental principles of sentencing in

section 718.1, along with the principles of restraint and parity. As it relates to parity, both counsel were unable to present the Court with cases that dealt solely with a charge under section 94(1) . In those cases filed where a

section 94 charge was in issue, the focus of the decision was either in relation to a

section 95 charge or when the

section 94 charge did not fall under the ‘true crime’ label. I have already indicated that a custodial sentence is the only way to carry out the principles of sentencing under

section 718 and related Code provisions. However, I cannot accede to the Crown submission that a penitentiary term of imprisonment is required. The case before me involves an offender with a lowered moral culpability than that of a

section 95 offence. The range for

section 94 offences appears to be a lengthy conditional sentence to a period of incarceration of two years in the most serious of cases. I am of the view that given the aggravating and mitigating factors, an appropriate sentence is one of 18 months, less time spent on remand for an approximate sentence of 16 months and three days incarceration going forward. As well, there will be an 18-month probation order following this period of incarceration, with the terms appended to this judgment.

The primary aim of the probation order is to assist McKenzie with addictions and personal counselling so that he can continue along the road to sobriety while also protecting society. It is the Court’s sincere hope that through this period of incarceration and the probation order that McKenzie can achieve rehabilitation. [ 31 ] As it relates to the other matters before me, all sentences will run concurrent to the 18 months for the

section 94 offence (as per Information ending 0613). As such, I sentence Mr. McKenzie to 30 days concurrent for the breaches contained on Information 4748 and 4197. I sentence Mr. McKenzie to 90 days concurrent on the possession of stolen auto on Information ending 4465, 30 days

concurrent for the possession of methamphetamine on 1247, and 30 days concurrent on the breach contained in Information ending 1247. The Crown has sought, and I will accede to, the imposition of a discretionary

section 109 firearms prohibition, which will be for a period of 10 years. To the extent that they may apply, and after considering the submissions of defence counsel, I will waive the victim of crime surcharge as I find the imposition of same would be a hardship in Mr. McKenzie’s circumstances. Appendix: Terms of Probation Order: 1. Keep the peace and be of good behavior. 2. Appear before the court when required to do so by the court. 3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. 4.

Report to a probation officer by phone within two working days of your release and thereafter as told to do so by your probation officer or designate. 5. Participate in an assessment and complete programing for addictions, which may include in-patient or out-patient treatment, as told to do so by your probation officer. 6. Participate in assessments and complete programming for Personal Counselling and Mental Health concerns. 7. Not possess any firearms or ammunition, cross bow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive device. _______________________ Evanchuk, J