R. v. Muir, 2015 NSPC 58

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Muir , 2015 NSPC 58 Date: 2015-08-19 Docket: 2748347, 2748348, 2820667, 2820668, 2820669, 2820672, 2820675, 2820676, 2820680, Registry: Pictou Between: Her Majesty the Queen v. Justin Cory Muir SENTENCING DECISION Judge: The Honourable Judge Del W. Atwood Heard: August 19, 2015, in Pictou, Nova Scotia Charge: Section 5(2) Controlled Drugs and Substances Act x 2 Sections 733.1 , 145(3) , 145(5.1) , 86(2) , 117.1(3) , 91(2) , 129 (

a) Criminal Code of Canada Counsel: Bronwyn Duffy, for the Public Prosecution Service of Canada Bill Gorman, for the Nova Scotia Public Prosecution Service Eugene Tan, for Justin Cory Muir By the Court: [ 1 ] The court has for sentencing Justin Cory Muir. Mr.

Muir is before the court for sentencing in relation to a number of indictable matters involving the possession of MDPV for the purpose of trafficking on two occasions; breach of probation; breach of police-imposed and court-imposed bail; illegal possession of weapons; possession of weapons while prohibited; possession of a prohibited weapon; and obstructing a peace officer. [ 2 ] The positive factors are that Mr. Muir elected to have his matters dealt with in this court and entered guilty pleas at a reasonably early opportunity. [ 3 ] The court has had the benefit of hearing from counsel. I have also reviewed Mr.

Muir’s pre-sentence report. It describes Mr. Muir as a 36-year old who has struggled with drug-use issues for a number of years. Notwithstanding having to deal with a powerful drug addiction, Mr. Muir has been able to upgrade his vocational training. He is a parent. There is a reasonable prospect for Mr. Muir’s rehabilitation, and the court must not impose a sentence that would crush it. [ 4 ] There is a joint submission before the court. The Court of Appeal of this province in R. v.

MacIvor 2003 NSCA 60 directs me that the court ought to defer to a joint submission negotiated by counsel unless the court were to be satisfied that the joint submission would bring the administration of justice into disrepute. [ 5 ] I am satisfied that the joint submission is reasonable in the circumstances. As Ms. Duffy explained it with typical thoroughness, it has been negotiated by experienced counsel who have intricate knowledge of the facts before the court; therefore, the court intends to follow the joint recommendation.

[ 6 ] The joint recommendation is a substantial one: forty-two months in a penitentiary. It reflects the fact that Mr. Muir has made the regrettable choice to arc-weld himself to the drug trade. The circumstances that resulted in Mr. Muir’s arrests in 2014 and 2015 satisfy the court that Mr. Muir is a petty retailer as described in R. v. Fifield , [1978] N.S.J. No. 42 , and R. v. MacLean [1988] N.S.J.

No. 29 ; but one who, because of the realities of drug dealing, armed himself to the teeth with an array of firearms, ammunition, and a conductive-energy weapon, against the prospects of being ripped off; these are the sorts of features of drug dealing that endanger the protection and safety of the public and require the court to impose a substantial penalty. [ 7 ] The court will, as well, take into account the eight (8) months that Mr. Muir has spent on remand. Counsel have negotiated a one-for-one credit.

The court will also take into account, in imposing a total sentence, the principles of totality and restraint, as set out in paras. 718.2(c)-(

e) of the Criminal Code ; Mr. Muir should not be deprived of liberty if less restrictive sanctions would be appropriate, and the court must ensure that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [ 8 ] I intend, in calculating the sentence, to apply the principles set out in R. v. Adams 2010 NSCA 42 at paras. 23-30 . And so, to be clear, the first tally is not the sentence of the court. It is not to be recorded on the warrant of committal, or endorsed on the information.

The final sentence will be the one I shall state as being the final sentence following post-totality credit and credit for remand. [ 9 ] In relation to case #2748347, the first count of Section 5(2) possession for the purpose of trafficking in MDPV, had that charge stood alone, the court would have considered the imposition of a sentence of three (3) years. However, taking into account the principle of totality, the court would impose a sentence of 24 months, less eight (8) months credit for remand, for a total sentence of 16-months’ imprisonment.

The court will order and direct in relation to the Truth in Sentencing Act that the warrant of committal and the information be recorded that, but for the eight (8)-month credit for the remand time, the sentence of the court would have been 24 months. So, for that first count, it’s 16-months’ imprisonment. There will be a DNA secondary designated offence DNA collection order. It is an offence that attracts a mandatory weapons prohibition. Given the fact that Mr. Muir was previously the subject of a prohibition order, that prohibition will be for life/life.

A $200 victim surcharge amount is mandatory with 5 months to pay. [ 10 ] In relation to case #2748348, the run-along breach of probation, the court imposes a sentence of three (3) months, but to be served concurrently. [ 11 ] In relation to case #2820676, the second count of 5(2) possession for the purpose of trafficking in MDPV, had that offence stood alone, the court would have imposed a sentence of two (2) years, a lesser quantity having been involved.

However, given the principle of totality, the court imposes a sentence of 15 months, to be served consecutively. [ 12 ] In relation to case #2820667, the charge of breach of judicial undertaking, the court imposes a sentence of two (2) months to be served consecutively. [ 13 ] In relation to case #2820668, the charge of breach of form 11.1 undertaking, the court imposes a sentence of one (1) month imprisonment to be served consecutively. [ 14 ] In relation to case #2820669, the charge under Section 86(2) , unsafe storage, the court imposes a sentence of one (1) month imprisonment to be served consecutively. [ 15 ] And in relation to case #2820672, a charge under s. 117.1 of the Code , possession while prohibited, a sentence of two (2) months’ imprisonment to be served consecutively.

And that offence also attracts the 109 prohibition order for life/life. But simply one order need be prepared. [ 16 ] In relation to case #2820675, the charge of 91(2), possession of the prohibited CEW, the court imposes a sentence of three (3) months to be served consecutively. [ 17 ] And in relation to case #2820680, the charge of obstruction, the court imposes a sentence of two (2) months to be served consecutively. [ 18 ] And by my reckoning, that is a total sentence of 42 months which was the joint recommendation. And I’m just going to take a moment to verify that.

And by my reckoning, counsel, that’s 42 months. [ 19 ] Mr. Gorman : I neglected to add in my submissions, Your Honour, a forfeiture order with respect to the firearms and the ammunition. [ 20 ] The Court : And I’m going to be getting to that very shortly. [ 21 ] There will be a $200-victim surcharge amount in relation to each of the charges before the court as they proceeded indictably, and that is the mandatory amount under

Section 737 of the Criminal Code . Mr. Muir will have five (5) years to pay the combined victim surcharge amounts. [ 22 ] In addition, the court will order forfeiture in relation to the drug contraband and the paraphernalia. The court is also going to order

section 491 forfeiture in relation to all of the seized firearms and the seized ordinance. And if an order is presented to the court in relation to forfeiture, the court will sign that in due course. [ 23 ] The total sentence of the court is 42 months’ imprisonment on a go-forward basis; a secondary- designated-offence DNA collection order, a

section 109 order for life/life; forfeiture orders in relation to the drug contraband and paraphernalia, as well as the seized firearms and ordinance; $200-victim surcharge amounts in relation to each indictable count with five (5) years to pay. [ 24 ] Anything further for Mr. Muir, counsel?

[ 25 ] Ms. Duffy : Just one clarification point, Your Honour, originally went with the first 5(2) count, I believe the court had mentioned that there was a $200-victim surcharge with five (5) months to pay. But, has the court concluded that it’s the $1800 with five (5) years to pay that total? [ 26 ] The Court : It’s five (5) years to pay. If I said five (5) months, I misspoke. Thank you very much for pointing that out, Ms. Duffy. That should be five (5) years. Five (5) years to pay the total victim surcharge amounts. [ 27 ] Ms. Duffy : Thank you, Your Honour. [ 28 ] The Court : Anything further, Mr.

Tan? [ 29 ] Mr. Tan : No, thank you, Your Honour. [ 30 ] The Court : And Mr. Muir, I’ll have you go with the sheriffs, please, sir. Thank you very much. JPC