R. v. Connolly, 2015 MBPC 25

R. v. Connolly Citation No. 2015 MBPC 25 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Mark Lafreniere and Laura Perron, for the Crown ) - and – ) ) Jordan Colin Connolly ) Kathy Bueti, for the accused ) ) Judgment delivered: ) May 19, 2015 ROLSTON, P.J. Introduction [ 1 ] The accused, Jordan Colin Connolly, has pleaded guilty to the following offences: • Possession of a prohibited or restricted firearm with ammunition contrary to section 95(1) (

a) of the Criminal Code , • Possession of firearm or ammunition contrary to a prohibition order contrary to

section 117.01(1) of the Criminal Code , • Unauthorized Possession of a firearm contrary to section 92(1) (

a) of the Criminal Code , • Possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act , and • Possession of proceeds obtained by crime contrary to section 354(1) (

a) of the Criminal Code . [ 2 ] The offence of possession of a firearm with ammunition contrary to section 95(1)(

a) of the Code is punishable by a minimum sentence of three years. The Supreme Court of Canada struck down the mandatory minimum sentence for

section 95 three days prior to the sentencing hearing for Mr. Connolly. The issue in this case is what the appropriate sentence is for Mr. Connolly in light of the decision in R. v. Nur , 2015 SCC 15 . Facts [ 3 ] In October 2014, the Winnipeg Police entered into an investigation that focused on a home on Desharnais Street (Desharnais) in the city of Winnipeg. Surveillance was set up on the morning of October 17, 2014, and the accused was identified leaving Desharnais and traveling to an address on Belmont Street in Winnipeg (Belmont). A traffic stop was initiated in the back lane of Belmont.

In the midst of the police dealing with the accused a female approached from Belmont and advised that the accused was, “just coming to visit me”. This stop appears to have triggered suspicion of police interest in Desharnais as evidenced by the events that followed. [ 4 ] Shortly after the accused had been stopped at Belmont, two co-accused arrived at Desharnais, which remained under police surveillance. The co-accused were attempting to retrieve a loaded 12 gauge sawed off shot gun, with a defaced serial number wrapped in a blanket, when detained by police.

Next the accused’s mother was detained attempting to remove a black duffle bag from Desharnais. A safe was found within the bag (a key to which was located on the accused upon his arrest), which contained $3010.00 in 3 bundles, 53 rounds of ammunition, 8 cell phones, and 3 ounces of cocaine. There was also an invoice for the purchase of a car in the name of the accused. Later, another co-accused was detained by police attempting to take out a garbage bag from Desharnais. A scale contaminated with cocaine residue was found within the garbage bag.

Ultimately the police obtained and executed a search warrant on Desharnais, and located score sheets, cell phones, and documentation that the accused was one of the main residents of Desharnais. Other family members also resided at the property including the accused’s mother and a ten year old boy. [ 5 ] The accused was taken into custody and remained in custody to the date of sentencing, which amounts to a period of 215 days. Counsel have agreed that the accused is eligible for credit on the basis of 1.5 days for every day served. Therefore the accused is entitled to credit for 323 days.

The Crown proceeded by indictment for each offence for which the accused has pled guilty. Background of the Offender

[ 6 ] The accused was 22 years old at the time of the offences. According to the Pre-sentence Report (Exhibit S-1), although his parents were separated when he was 8 or 9 years old, the accused was raised by his mother and had a positive upbringing. According to his counsel, the accused’s family support has been unwavering, “perhaps to a fault”.

This is perhaps best illustrated by the fact that the accused’s family members were allegedly involved as co-accused in the attempts to remove evidence from Desharnais address. [ 7 ] The accused completed high school, but never held down a stable job beyond odd jobs such as snow removal, or other manual labour. The accused’s background does include substance abuse, albeit with fentanyl, which he reportedly purchased from the proceeds he made from the sale of hard drugs as evidenced from the present offences.

According to his counsel, the accused now realizes the extent to which his addictions were out of control. [ 8 ] The accused identifies as Metis, however grew up in Winnipeg and was not exposed to “much Aboriginal culture”. There is no evidence before the court that the accused has been impacted by the unique systemic circumstances that brought about the necessity of

section 718.2 (

e) of the Criminal Code , despite the subject area being covered by the author of the pre-sentence report. [ 9 ] The accused has been described as “receptive and motivated” while in custody, having commenced various programming opportunities presented to him.

He has also been afforded an opportunity to work in computers while in custody, a position that indicates he has gained some trust while in custody. [ 10 ] The accused was assessed as a high risk to re-offend, based upon his significant addictions problem, his choice of companions, his lack of constructive leisure activity, his lack of motivation to education and employment, and his criminal history. [ 11 ] For his own part, the accused has indicated remorse by stating, “I accept responsibility; I know what I did was wrong and I deserve to do some time for it”.

The Principles of Sentencing [ 12 ] The court is required by the Criminal Code to consider a number of factors in determining a fit and appropriate sentence. The factors, I view to be particularly relevant here are: Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 13 ] The Controlled Drugs and Substances Act ( CDSA ) also requires the court to consider particular principles of sentencing in respect of the possession of cocaine for the purpose of trafficking offence. These principles are similar in many respects to the principles required pursuant to the Criminal Code and to the extent that they are different have also been considered. [ 14 ] The relevant sections from the CDSA are: Purpose of sentencing 10.

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors to take into consideration 10.

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (

b) was previously convicted of a designated substance offence; or (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence. Aggravating and Mitigating Factors [ 15 ] There are some mitigating factors benefitting the accused that must be taken into consideration. The accused is only 23 years old, and is therefore a youthful offender and as such the court must be mindful of his potential for rehabilitation.

Further, although he had been given the benefit of a conditional sentence order in the past, which he breached, he has now come to realize the extent of his addictions and is open to dealing with them in a meaningful way. Although it does not appear that this case can be categorized as a “true plea bargain” as defence counsel suggested, it is clear that the accused entered his plea early, and in doing so surrendered his right to argue that the Crown could not prove he was in possession of the illegal items.

In doing so he saved the Crown from the burden of proof and his co-accused and family from facing prosecution. It has also been suggested that although there was some hints of his being involved in gang activity in the past, he is no longer inclined to have such associations. It should be noted that there was no suggestion that the present offence was gang involved. [ 16 ] There are many aggravating factors to consider. Although all parties agree that this case reflects what is known in the case law as “street level” trafficking, the presence of drugs and guns is a major aggravating factor.

The accused has a lengthy criminal record that includes convictions for possession of drugs for the purpose of trafficking, one of which resulted in a conditional sentence order that was breached. The accused was committed to custody and committed the present offences within approximately 6 months of being released. In addition the fact that a ten year old boy was located residing the home in which the drug activities were taking place is aggravating.

Positions of the Parties [ 17 ] In a joint submission before the court, both Crowns have advocated that the accused be sentenced to 7 years concurrent with respect to the charges of possession of cocaine for the purpose of trafficking, possession of firearm with ammunition, and possession of proceeds obtained by crime (the substantive offences), followed by 1 year concurrent to one another but consecutive to the substantive offences on the possession of weapons without a licence and possession of weapons while prohibited for a total of 8 years on all offences.

Both Crowns also seek the following ancillary orders: DNA, forfeiture of items seized and lifetime

section 109 weapons prohibition. [ 18 ] The basis for the Crown’s position on sentence was that the accused was a street level trafficker, whose conduct suggested that he was entrenched in the trade of drugs by virtue of the presence of weapons. Deterrence and denunciation are the paramount principles of sentencing in such circumstances.

Therefore based upon a number of sentencing precedence filed by the Crown, the trafficking behaviour was worth 3 years on its own, and the presence of the gun and ammunition, the accused’s prior record and the other aggravating factors justified a sentence of 8 years. [ 19 ] The accused sought a global 4 year penitentiary sentence, and did not take issue with the ancillary orders sought by the Crown. The accused presented a number of cases that indicated that the range for sentence for a “mid-level dealer” in Manitoba is in the neighbourhood of 4 to 8 years, even when weapons are involved.

Defence argued that the recent decision from the Supreme Court in Nur , supra, changed the range of sentences for this accused as there is no longer a “floor” or minimum sentence which serves to increase the sentences of those who are convicted pursuant to

section 95 of the Criminal Code . According to this argument, those who would have been sentenced to the minimum sentence of 3 years for possessing a firearm with ammunition where the crown proceeded by indictment, now would fit just above the one year maximum that was caught by those who were dealt with by

summary conviction. While the defence agreed that this accused was not in the category of deserving the low end, the sentence imposed here should fall within the gap left between the one year maximum under the

summary conviction regime and the former 3 year minimum abolished by Nur. Analysis and Decision [ 20 ] Given that the present case involves multiple counts committed, it is incumbent upon the court to follow the direction of the Court of Appeal most recently affirmed in R . v. James 2013 MBCA 14 which requires that the court first determine whether the multiple counts are to be served consecutively or concurrently. In this case, counsel have agreed that the substantive drug and weapon offences should be served concurrently.

Both Crowns have advocated that the possession while prohibited charge and the unauthorized possession offences be served on a consecutive basis to the substantive weapons and drug offences, but concurrent to one another. [ 21 ] The rationale for having concurrent sentences with respect to the substantive offences is that the offences are part of one ongoing transaction that is interrelated. That is, the accused possessed drugs to traffic and in the meantime had possession of the gun and ammunition for protection in that endeavor. That being the case, concurrent sentences are warranted.

This view was endorsed by the Manitoba Court of Appeal in R. v. Rider 2013 MBQB 116 (See paragraph 49). [ 22 ] With respect to the

section 117.01 offence related to a prior prohibition, it is noteworthy that the accused has not previously been convicted of a firearms offence that triggers a second offence proceeding pursuant to section 95(2) (ii) of the Criminal Code . The offence arises as a result of the accused having been convicted of prior drug offences, triggering a mandatory weapons prohibition pursuant to

section 110 of the Criminal Code . As noted, the court is required to consider the accused’s prior conviction as an aggravating factor in sentencing pursuant to section 10(2)(

b) of the CDSA. Therefore, imposing a consecutive sentence for the 117.01 offence would in effect double punish the accused. Similarly, the accused does not have a licence for the firearm that has a serial

number removed, and has committed an offence pursuant to section 92(2). This fact is an integral fact intertwined with the actualpossession of the firearm. Accordingly, in this case, it is appropriate to sentence the accused concurrently on all matters. It is thereforeimportant to ensure that the accused is not granted a “free ride” with respect to the sentence for any offence before the court (See R. v.Lagimodiere (S.M.E.), 2008 MBCA 137). [23] Any consideration of sentencing regarding trafficking in cocaine along with the presence of guns must begin with the principlesof deterrence and denunciation.

This was concisely stated in R. v. Rider 2013 MBQB 116 at paragraph 19 – 21: “[19] Trafficking in cocaine is a serious crime. Its victims are legion: addicts, their families, casualties of violent and property crimesrelated to cocaine, and ultimately taxpayers who pay for the human and social carnage that the avarice of traffickers produces. Denunciation and deterrence are the primary objectives for sentences for commercial trafficking in cocaine. See R. v. Vermette (I.M.),2001 MBCA 64 , 156 Man.

R. (2d) 120 at paras. 46-47 (C.A.). [20] The deadly cocktail of “drugs and guns” is particularly alarming in a civil society. This court is well aware of the ever-presentand large docket of homicides in this community and other places in Canada in drug-related shootings. Unfortunately these events havean almost banal quality because of their all too common re-occurrence here and elsewhere. However, there is a growing consensus inappellate courts across the country that sentences for criminality involving the combination of drugs and guns should be “exemplary” tomeet the objectives of denunciation and deterrence.

See R. v. Wong, 2012 ONCA 767 , [2012] O.J. No. 5250 at paras. 11-13(C.A.) (QL); R. v. Borecky, 2013 BCCA 163 , [2013] B.C.J. No. 697 at para. 74 (C.A.) (QL); R. v. Chin, 2009 ABCA 226, [2009] A.J. No. 711 at paras. 11-15 (C.A.) (QL); and R. v. Dobbin, 2009 NLCA 52 , [2009] N.J. No. 348 at paras. 19-20 (C.A.) (QL). In my view the courts must calibrate their sentences when faced with the toxic cocktail of drugs and guns to the reasons behind thiscriminal conduct. Drug dealers arm themselves because they know the stakes are high in their illicit business and sometimes self-help isnecessary.

Accordingly, sentences must reflect these high stakes to reassure the public, and remind like-minded perpetrators that the ruleof law prevails over the law of the jungle.” [24] The case before the court fits within the category of cases described by Maniella, J. (as he then was), whereby the court mustimpose a sentence that reflects the gravity of the offence. [25] Interestingly, in Nur the accused was not charged with drug offences in conjunction with the guns and ammunition that hepossessed.

The accused in that case was caught with a prohibited firearm that was capable of firing 24 rounds in 3.5 seconds in a highcrime area near a community club. He was not found to have been involved in threatening activity, and was therefore sentenced merelyon the possession of the weapon and ammunition. Mr. Nur also came before the court with a clean background. He was sentenced to 40months incarceration. It should be noted that Nur argued that the gap between the one year maximum for

summary conviction and thethree year minimum for indictable proceedings was arbitrary because it eliminates the flexibility of an entire two year range ofsentences. This argument is similar to the accused in this case. Ultimately, Mr. Nur’s sentence was upheld. In doing so the court stated: “[82] Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence ofthree years or more, but conduct at the far end of the range may not.

At one end of the range, as Doherty J.A. observed, “stands theoutlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]hisperson is engaged in truly criminal conduct and poses a real and immediate danger to the public” (para. 51). At this end of therange — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrumstands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may bedisproportionate, but not grossly so.

At the far end of the range, stands the licensed and responsible gun owner who stores his unloadedfirearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence isgrossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.”[Emphasis added]. [26] The Supreme Court concluded: “[120] It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases atbar.

For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles.” [27] Based upon the above, while not explicitly dealt with in Nur, the only conclusion that can be reached is that the range ofsentence that is appropriate for those who offend by carrying a loaded weapon as a tool of his or her drug trade has not dropped downinto the gap between the one year maximum and three year minimum left by the elimination of the mandatory minimum sentence. [28] The accused in the case at bar falls into this category of offender.

The nature of the weapons and ammunition, including thefact that this weapon was sawed off, loaded and had the serial number defaced is indicative of its intended use. [29] At the end of the day, the accused is a street level dealer, with a prior record for similar behaviour, who has offended by mixinghis trafficking behaviour with the presence of a dangerous weapon, thereby indicating an escalation of his behaviour in a significantway.

He has plead guilty to the offences before the court in the face of some potentially tribal issues, and at 23 years old remains aviable candidate for rehabilitation, albeit only if he can come to understand the serious gravity for the offences which he is beingsentenced. [30] The Court of Appeal has established that the range of sentences for a street level trafficker of cocaine ranges from “less thantwo and one half years to beyond four years” (see R. v. Kunicki 2014 MBCA 22 at paragraph 59).

Aggravating factors such as aprevious related record and the use of weapons serve to increase the sentence to the upper end of that range. [31] Having considered the cases provided by all parties, the aggravating and mitigating factors and the principles of sentencing asset out in the Criminal Code and CDSA, the appropriate global sentence for this offender is 7 years incarceration. Given that he hasserved the equivalent of 323 days to-date, the sentence going forward shall be 6 years, 2 months. The sentence shall be apportioned as

follows: • Possession of a prohibited or restricted firearm with ammunition contrary to section 95(1) (

a) of the Criminal Code – Time in custody of 215 days x 1.5 = 323 days to be followed by 6 years and 2 months going forward. • Possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act – Time in custody of 215 days x 1.5 = 323 days to be followed by 6 years and 2 months going forward concurrent to the above. • Possession of firearm or ammunition contrary to a prohibition order contrary to

section 117.01(1) of the Criminal Code – one year of time already served, concurrent to the above. • Unauthorized Possession of a firearm contrary to section 92(1) (

a) of the Criminal Code , – one year of time already served, concurrent to the above. • Possession of proceeds obtained by crime contrary to section 354(1) (

a) of the Criminal Code – one year of time already served, concurrent to the above. [ 32 ] There will be an order pursuant to

Section 487.051(3) (

b) of the Criminal Code that the accused provide a sample of his DNA for the national data bank when required to do so. He is prohibited from owning or possessing any firearm for life pursuant to

section 109 of the Criminal Code . There will be forfeiture of all items seized pursuant to

section 491 of the Criminal Code, and section 16(1) of the CDSA . There will also be an order of costs and surcharges in the amount of $1,010.00, to be paid within 6 months of the accused’s statutory release date. “ORIGINAL SIGNED BY:” ROLSTON, P.J.