R. v. Lewis, 2012 ONCJ 413

COURT FILE NO.: 2811 998 11 13175 02 DATE: July 6, 2012 Citation: R. v.

Lewis , 2012 ONCJ 413 ONTARIO COURT OF JUSTICE (Central East Region) B E T W E E N: ) ) Her Majesty The Queen ) ) ) Michael Malleson for the Crown ) ) ) - and - ) ) ) CHRISTOPHER LEWIS ) ) ) Jeffrey Mazin for the Accused ) ) ) ) ) HEARD: May 25th, 2012 RULING ON CHARTER APPLICATION AND SENTENCING BELLEFONTAINE, J: This is my decision on the defence application to have me find unconstitutional the minimum three year period of imprisonment imposed upon conviction for firearms trafficking required by Section 99 (2) of the Criminal Code of Canada and my reasons for sentence for that offence and three counts of trafficking in cocaine.

The underlying facts are as follows: Following a tip from a confidential human source, Detective Palmer, posing as an undercover officer, contacted Mr. Lewis and arranged to purchase 3.5 grams of cocaine for him to resell. Following that purchase for $220, on the same day, a second sale of 7.5 grams was concluded for $375. Mr. Lewis was motivated to pursue further and larger sales of cocaine to the detective. He touted the quality of his product and his connections for obtaining larger volumes of cocaine. The two arranged to meet to discuss expanding their business relationship.

During the course of this meeting Detective Palmer raised the security and protection problems faced by them as drug dealers. I am satisfied that Mr. Lewis in response, took the initiative, and told the detective

he could get him a four-fifths, meaning a forty-five caliber handgun for two thousand five hundred dollars and would follow-up on the matter for the officer. Following this meeting further drug sales were arranged and completed for 1/2 ounce (14.17 grams) of cocaine for $700 and one ounce (28 grams) of cocaine for $1,400 being the final two of the three counts of trafficking in cocaine that Mr. Lewis has pled guilty to. Detective Palmer was anxious to pursue the firearm purchase to “get the gun off the streets”.

Numerous calls and discussions took place over the following month to arrange a purchase of the gun interspersed with the later drug transactions. All of the arrangements to obtain a gun fell through with a number of excuses being dreamed up by Mr. Lewis. The specifics of the available guns varied. In one discussion, Mr. Lewis said the original gun “was good for Friday” for sure. He stated it was a Smith and Wesson P-90 and came with two boxes of ammunition and clips with ten rounds each. He told Detective Palmer that the detective could break Mr.

Lewis off (i.e. give him) one hundred or two hundred dollars for arranging the sale. When the initial sale did not materialize, Mr. Lewis told the officer the shipment was coming in; that the officer could order four at a time; and on another occasion that three were available, but the officer would have to buy two for five thousand dollars. Mr. Lewis pled not guilty to the trafficking in a firearm by offer charge. For reasons given previously, I was satisfied that Mr. Lewis intended his offer to be taken seriously by Detective Palmer in order to keep him interested in Mr.

Lewis’ services as a drug supplier, but that Mr. Lewis never had access to a gun and never had any intention to carry through with the offer to transfer a firearm. I have also rejected the defence argument that the offer was made by Mr. Lewis as a result of entrapment actions initiated by the detective.

Section 99 of the Criminal Code of Canada makes it an offence for anyone to transfer (by - among others - selling, giving, lending or delivering…) or offer to transfer any firearm or ammunition unless that person is authorized to do so under the Firearms Act . From 1998 to 2008 the penalty upon conviction pursuant to

Section 99 was a maximum of ten years imprisonment and a minimum sentence of one year. In 2008 the minimum penalty for a first offence was raised to three years imprisonment. The position of the defence is that a three-year minimum period of imprisonment for Mr. Lewis, for this offence, which is nothing more than an ill advised sales pitch, would be subjecting him to cruel and unusual punishment prohibited by

Section 12 of the Canadian Charter of Rights and Freedoms and that the

Section should be declared invalid pursuant to Section 52(1) of the Constitution Act which provides: 52(1) The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect. The defence submits a one year sentence to run concurrently with a two year sentence on the three drug trafficking charges would be an appropriate sentence.

The position of the Crown is that a three year minimum sentence is constitutional and further should be seen as a “floor sentence” for a minimal offence and minimal offender. Accordingly, as Mr. Lewis has a significant youth record, a greater sentence should be imposed consecutive to a four to five year sentence for the drug offences for a total sentence of eight years less credit for Mr. Lewis’ pre-sentence custody. Two recent cases from the Superior Court of Justice provide significant guidance to the case law and the analytical framework for the determination of the constitutionality of Section 99(2) . R. v.

Nur, 2011 ONSC 4874 by Justice Code and R. v. Smickle , 2012 ONSC 602 by Justice Molloy deal with the constitutionality of Section 95(2) of the Criminal Code which provides for a minimum three year sentence for possession of a loaded prohibited firearm without a valid authorization. While some factual differences led to opposite decisions on the constitutionality of Section 95(2) , the reasoning process and consideration of the applicable authorities was similar and in my view are analogous to the process that should be taken for considering this case under Section 99(2). The issues for me to decide are: 1.

What would the appropriate sentence for Mr. Lewis be for this offence in the absence of the current three year minimum penalty of imprisonment? As Justice Code notes in R. v. Nur , at para 4 , “if the sentence would be over three years whether the minimum exists or not, the constitutional argument is “only of academic interest…and it should be summarily dismissed.” 2. If the appropriate sentence in the absence of a three year minimum would be less than three years, is Section

99(2) constitutional? Specifically, does it amount to cruel and unusual punishment for Mr. Lewis or, if not, for a reasonable hypothetical case that may be charged. If a charter breach is made out, can the breach be saved by

Section 1 of the Canadian Charter of Rights and Freedoms which permits infringements of charter rights if they are demonstrably justifiable? 3. Finally, what is the appropriate sentence if the

Section is constitutional or, what in any event is the appropriate sentence in totality with the serious drug offences Mr. Lewis has pled guilty to. 1. THE APPROPRIATE SENTENCE FOR MR. LEWIS IN THE ABSENCE OF THE MINIMUM THREE YEAR PENALTY The circumstances of the offence have been previously set out. Although Mr. Lewis intended his offer to be taken seriously, the evidence was clear, he did not have a firearm, or access to one or any intention to actually obtain and transfer one.

While firearms in general and handguns in particular are dangerous and a pressing public concern in the greater Toronto area, the hollow offer that forms the substance of this charge has to be seen to be a less serious offence than the actual possession of a firearm. The likelihood of danger that a firearm could be used, to harm members of the public, is much higher in the case of actual possession of a gun, than is the offering to get one in the future, and particularly so when the offerer has no intention of actually making the firearm available.

While the Crown notes the offer has inherent risks associated with it, being the potential it creates that those hearing of the offer might be motivated for the first time to obtain a gun even if that initial offer falls through or may be moved to violence against the seller when the offer proves vacuous, these risks are quite ethereal when compared to the risk associated with the actual possession of a firearm. The Crown also notes the potential that the offerer will come across an opportunity to obtain a firearm and make good on their previously vacuous offer.

While I accept such a risk is not farfetched, it is not the case before me where such an opportunity did not materialize over the course of the month that Detective Palmer tried to follow up on the offer to obtain the gun. The foregoing low risk that a handgun may end up in the hands of the criminal element has to be considered however in the context of the devastatingly lethal potential that such an outcome poses.

The easily concealed nature of such weapons, which facilitates them being brought into public places, and into close contact with unsuspecting targets, combined with the significant likelihood of a fatal outcome if they are used, means even a low risk is a grave risk that should be deterred. While the actual danger to the public is relatively low in trafficking by making an offer, the culpability of the offender could be, in some such trafficking circumstances, very high.

For example, one who intentionally offers to obtain a firearm for someone he knew was planning a mass murder of innocents would be committing a most serious offence if he intended to carry through with the offer and actually deliver the gun. In this regard Mr. Lewis’ use of the offer as a sales tool to keep Detective Palmer interested in Mr. Lewis as his supplier of cocaine carries meaningful criminal culpability given the highly criminogenic nature of cocaine trafficking and addiction. That said, Mr.

Lewis clearly would not have envisioned any potential for harm to anyone given his lack of intention to actually obtain and transfer a gun. Indeed, his criminal culpability is more directly connected with the sale of the cocaine.

I do not accept the Crown’s submissions that the offer to make multiple guns available is an aggravating feature in this case given the hollow nature of the offer and the fact that the offer to make multiple guns available was used as part of an excuse to deter Detective Palmer, in the hopes that the requirement that he purchase two guns for five thousand dollars would dampen his enthusiasm to obtain a firearm. The offence was not a once only flippant remark such as seen in R.v. Farhat , [2011] O.J. No. 5399 . There were many discussions over the course of a month about obtaining and delivering a firearm and Mr.

Lewis had opportunities to revoke the offer. Mr. Lewis was twenty years old at the time of the offence. His criminal record is as follows: 2006

(1) Uttering Threats Sec 264.1(1)(

A) CC (1-3) Probation 12 mos

(2) Fail to Comply With on each chg conc Recognizance Sec 145(3) CC

(3) Theft over $5000 Sec 334(

a) CC

(4) Assault Sec 266 CC (4-5) Probation 12 mos

(5) Fail to Comply With & Discretionary Recognizance Sec 145(3) CC Prohibition Order Youth Court 51(3) YCJ Act for 2 on each chg conc 2007

(1) Obstruct Peace Officer

(2) Fail to Comply With (1-2) Time Served (1 day) Recognizance Sec 145

(3) CC & Probation 12 mos Youth Court

(1) Mischief Under $5000 (1-2) Time Served (8 days)

(2) Fail to Comply with & Probation 12 mos on each Disposition Sec 137 YCJ Act chg conc Youth Court 2008

(1) Assault Sec 266 CC

(1) Time Served (1 mth) & Probation 18 mos

(2) Mischief Under $5000

(2) Probation 18 mos conc Fail to Comply with Recognizance Sec 145(3) CC $10 & (4 days pre-sentence Youth Court Custody

(1) Robbery Sec 344 CC (1-3) 140 days & 70 days

(2) Aggravated Assault Supervision in the Community Sec 268 CC & (5 mos & 12 days pre-

(3) Fail to Comply with sentence custody) & probation With Recognizance 2 years on each chg conc & Sec 145(3) CC mandatory order Sec 51(1) YCJ Youth Court 2010 Assault Sec 266 CC 15 days & (27 days pre-sent Custody) & probation 15 mos & discretionary prohibition Order Sec 110 CC for five yrs ****** Assault a Peace Officer 1 Day & (16 days pre-sent Sec 270(1)(

A) CC custody) & discretionary Prohibition order Sec 20.1(3) YO Act for five years

Mr. Lewis is clearly a violent recidivist and past probation and custodial sentences have not deterred him from crime. He has noprevious weapons offences or drug convictions, although materials filed show the aggravated assault and robbery sentence to be a “drugrip off”, where he set up a drug purchaser/client of his to be robbed, during which another individual stabbed the victim. The offences and his own evidence at trial shows him to be an energetic mid-level cocaine dealer. There has been no mention ofhim being employed in the past.

He has a supportive family and in turn has been supportive and helps care for his two children withtheir respective mothers. While Mr. Lewis is not an addict, he has taken counseling while in jail to address his heavy usage ofmarihuana. It is noteworthy that he was on two probation orders and a firearms prohibition order at the time of the offences for which hehas been found guilty. There is a paucity of relevant sentencing authority to provide assistance in determining the appropriate sentence in this matter. R.v.

Ralph 2012 ONSC 581 is the only case counsel were able to find that dealt with an offer to traffic a firearm. It is highlydistinguishable on its facts and the concurrent nature of the offer to transfer a firearm penalty alongside more serious offences weakensits assistance as a precedent given the lack of discussion as to the rationale for that aspect of the penalty imposed. Considering all of the factors in this matter, I view Mr.

Lewis’ criminal culpability and moral blame worthiness to be at the verylow end of the spectrum of offences, but given the significant criminal antecedents, I would impose a one year sentence in this matterconsecutive to the companion drug offences. This sentence falls well below the current three year minimum penalty required by Section99(2) and accordingly the constitutionality of Section 99(2) must be considered. 2. CONSTITUTIONALITY OF SECTION 99(2)

Section 12 of the Canadian Charter Rights and Freedoms provides: “Everyone has the right not to be subjected to any cruel andunusual treatment or punishment”. The test for me to apply in determining whether a sentence is cruel and unusual, is whether it is so excessive or grosslydisproportionate as to outrage standards of decency. See R. v. Smith (SCC), [1987] 1 S.C.R. 1045 and R. v. Goltz (1991) (SCC), 67 C.C.C. 3d 481. A finding of unconstitutionality requires more than the sentence being harsh, excessive, ordemonstrably unfit. As discussed in R. v. Goltz, there are two aspects to the analysis of invalidity under

Section 12; One aspect involves the assessment of the challenged penalty from the perspective of the person actually subjected to it,balancing the gravity of the offence itself with the particular characteristics of the offender. If it is concluded that the challengedprovision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outragedecency in those real and particular circumstances then it would amount to a prima facie violation of

Section 12…” While the low criminal culpability in the circumstances of this offence might result in a constitutional violation, those offencerelated circumstances must be balanced with Mr. Lewis’ significant criminal antecedents and entrenched devotion to a criminal lifestyle. Mr. Lewis has not been deterred from a criminal lifestyle by numerous past probation orders and at least one significant youth custodialsentence. His record for numerous violent offences in particular increase the need for a sentence that will be long enough to specificallydeter him from future crime to ensure the public is protected.

He does not have the benefit of mitigation by having entered a plea ofguilty for the firearms offence. Having served seven previous custodial sentences including one resulting in ten months in a youthfacility, he has not established that serving a lengthy period of imprisonment will have any undue severe affect on him personally. Heappears to be acclimatized to the custodial environment. No current employment or future prospects will be affected by him serving alengthy sentence. While I consider a three year penalty to be excessive and disproportionate for Mr.

Lewis, I am not prepared to find that it is so at alevel that would be grossly disproportionate and /or would outrage standards of decency. Accordingly, as the facts and circumstances donot warrant a finding of gross dis-proportionality at a constitutionally impermissible level with respect to Mr. Lewis on an individualbasis further consideration must be given to the second aspect of the analysis required pursuant to R. v. Goltz. The second aspectrequires that the validity of the statutory provision be considered on the grounds of gross dis-proportionality as evidenced in reasonablehypothetical cases.

This approach flows from the Supreme Court of Canada decision in R. v. Smith, which struck down the minimumseven year sentence for importing a narcotic into Canada. The decision was not struck down on the basis of Mr. Smith’s personalcircumstances. He was a seasoned drug trafficker importing seven and one half ounces of 85 to 95 percent pure cocaine into the countryfrom Bolivia. The analysis was conducted on the basis of a young first offender entering the country with his or her first “joint of grass”.

A number of hypothetical cases have been posited by the defence. I need only deal with the first. The offender could hypothetically be a youthful individual with no criminal record or youth antecedents and engages in similar behavior to Mr. Lewis and similarly has no gun, access to a gun or intention of transferring one. He could commonly be selling marihuana instead of cocaine.

On any subjective or objective assessment (see the discussion by Justice Molloy in Smickle at paragraphs 42 to 48 , in which she supports an objective test), I am satisfied that a three year penitentiary sentence for such a youthful first offender for making such a hollow offer would be grossly disproportionate and further at a level that would outrage community standards of decency. Actual danger to the public in such a scenario, as for Mr. Lewis, is non-existent or too remote to merit a lengthy jail sentence.

The foreseeability of harm being caused is extremely low resulting in a low level of criminal culpability being associated with the offenders thought process. The aggravating feature of the hollow offer being used to further cocaine trafficking, and the serious violent crime associated with it, is absent. While the words “one year” or “two years” or “three years” slide off the tongue equally easily, they represent large magnitudes of difference to a youthful first offender serving the sentence.

A three year sentence will necessarily be served in the harsh environment of a federal penitentiary with generally older and many hardened violent criminals. Such a length of sentence and the severe environment it would be served in would effectively eliminate rehabilitation as a sentencing objective when it should be the primary purpose of sentencing for a youthful first offender. That length of sentence would not be required for specific deterrence. Such a grossly disproportionate sentence could not be justified on the basis of general deterrence or the protection of the public.

The Crown has submitted that proportionality should include consideration of the parole eligibility of an individual who will likely be released at two thirds of their total sentence by way of statutory remission and who may well be eligible for parole after one third of a sentence being served or after one sixth of their sentence for day parole. Accordingly, they argue, a three year sentence is not as bad as it sounds as its’ effect on the individual is lessened by virtue of the early release potentials.

Given however the myriad ways in which the offence can be committed, including many with minimal criminal culpability, I do not consider even these potentialities to save the

section which would require a first offender to serve some lengthy period of incarceration in a penitentiary. Unlike the charge of possession of a loaded prohibited firearm under Section 95(2) , there is no Crown option available to proceed summarily, to avoid the minimum penalty in charges of trafficking under

Section 99 . Accordingly this option, which “saves” Section 95(2) from being struck down as unconstitutional in R. v. Nur is not available for the charge Mr. Lewis faces. The three year minimum sentence cannot be supported by rational sentencing objectives for the reasonable hypothetical which has been advanced and would amount to cruel and unusual punishment and therefore breaches

Section 12 of the Canadian Charter of Rights and Freedoms . As a result of a finding of a breach of

Section 12 further consideration needs to be given to whether the breach can be shown to be justified under

Section 1 of the Charter which permits reasonable limits on an individual’s rights if such a breach can be demonstrably justified in a free and democratic society. The test for assessing whether such a breach is justified by

Section 1 and extensive

Section 1 analysis is set out in the context of possession of a loaded restricted firearm in R. v. Smickle , and need not be repeated. In Smickle , Justice Molloy found that a three year minimum was not shown to be justified by a

Section 1 analysis. Weapons trafficking is arguably a more serious offence and accordingly merits its own analysis. However, the factors involved are fully canvassed by Justice Molloy and I agree with her analysis. The distinguishing feature in Mr. Lewis’ case is the more serious criminality potentially associated with weapons trafficking. However both

Section 95 and

Section 99 share the same maximum sentence of up to ten years imprisonment. Given the clear pressing and substantial concern of controlling gun crime and violence, Parliament is entitled to take strong measures to prevent the distribution of firearms to the criminal element who have shown themselves to be indiscriminant about using them and endangering others, including innocent bystanders.

Section 99 however goes beyond addressing the actual distribution of loaded prohibited or restricted firearms, where the dangers integral to

Section 95 exist, to include all firearms, whether loaded or not, and by virtue of Section 99 (1) b to include “offers” to transfer a firearm where in fact no firearm exists at all.

Section 95, by confining the three year minimum to cases where the prohibited or restricted firearm is loaded, or has ammunition readily available for use, may be understood to be addressing situations where the risk of danger to the public is imminent by virtue of the gun being ready for use. In that context, an offer to transfer a firearm, which may have no readily available ammunition, is more comparable to a

Section 92 charge of unauthorized possession of a firearm which carries no minimum penalty. That is, even if a firearm is transferred following the offer, in the absence of ammunition the firearm would not present the elevated immediate danger to the public required for the minimum three year sentence flowing from

Section 95 or 99 . Also, by broadening the offence of trafficking to “offers” to do so, the immediacy of the danger to the public is removed even further, from the more dangerous

Section 92 or immediately dangerous

Section 95, especially in cases such as this where there is no gun to transfer and no intention to transfer a gun. In short, the broad range of criminal culpability for a

Section 99 offence which includes those with lesser culpability than

Section

95 offences makes Justice Molloy’s

Section 1 analysis and conclusions for

Section 95 appropriate to apply. Parliament has imposed aminimum penalty that addresses a worse case offence but which grossly over penalizes the many lesser ways that the same crime can becommitted. The minimum three year sentence does not address the different degrees of moral blame worthiness associated with thedifferent circumstances under which the offence can be committed and accordingly the penalty does not meet the minimal impairmentand proportionality tests in R. v. Oakes, (SCC), [1986] 1 S.C.R. 103 and cannot be justified under

Section 1. I am satisfied the three year minimum sentence is cruel and unusual punishment prohibited by

Section 12 of the Charter and cannotbe justified under

Section 1 of the Charter. By virtue of

Section 52 of the Constitution Act as interpreted by R. v. Ferguson [2008] S.C.C.6, the appropriate remedy is a declaration of invalidity of the statute to the extent of the invalidity. As noted in R. v. Big M Drug Mart, (SCC), [1985] 1 S.C.R. 295; it is open for provincial courts to declare legislation invalid in criminal cases. I askedcounsel during argument if I had the power to “read down” or “read in to” the

section to confine a declaration of invalidity to offers totraffic a firearm under Section 99 (1) (b). Both counsel for the defence and counsel for the Crown took the position I had no such power.I am inclined to the view that such power is inherent in the right to declare the

section invalid on the basis that the broader right todeclare the whole

section invalid should include the power to minimize any such declaration of invalidity and give as much effect toParliaments intention as constitutionally can be done. Further, reading down the

section to support those parts of it that are constitutionalis consonant with Section 52(1) which limits the invalidity of a law “to the extent of the inconsistency” with the Charter. Given howeverthe positions of counsel, the lack of clear authority for exercising such a power, and the risk of usurping the role of Parliament byattempting myself to address the many hypotheticals argued, without the assistance of Counsel, I will not read down the section. Accordingly, I declare Section 99 (2) (

a) of the Criminal Code of Canada setting out a minimum period of imprisonment for a firstoffence of three years to be invalid and of no force and effect. 3. THE APPPROPRIATE SENTENCE IN THIS MATTER I have previously set out the aggravating and mitigating features in this matter. I consider specific and general deterrence to bothbe significant factors in this sentencing. Mr. Lewis’ criminal record and his return to crime following his ten months in youth custody,show a significant penalty is required to deter him from future criminality. Although a heavy marihuana user, this offence was notmotivated by addiction.

Mr. Lewis was trafficking drugs for commercial reasons. Individuals doing so are more likely than addicts toconsider the rewards against the risks of being caught and associated penalties. They are the type of individual most likely to begenerally deterred by significant jail sentences for trafficking. The offences pled to, and the evidence, shows Mr. Lewis to be a mid-levelcocaine dealer distributing drugs to street level dealers. While the transactions here are over a relatively short period of time, they areclearly part of a larger pattern of criminality as opposed to being out of character conduct for Mr.

Lewis. Trafficking cocaine requires adenunciatory sentence. It is the source of tremendous personal grief to those who become addicted. Many successful people, who arelured into its use as a social outlet, go on to become addicts and lose their savings, homes, families and employment. Cocaine addictionis the source of significant crime as addicts turn to crime to obtain the funds to support their addiction. The high profits of the cocainetrade fund gang activity and a significant amount of violence, including shootings, that shock and outrage the community. The Crown relies upon R. v.

Bajada (2003), (ON CA), 173 C.C.C. (3d) 255 (Ont. C.A.) in support of theirsubmission that a four to five year sentence is warranted for the drug trafficking offences. Mr. Bajada was in possession of more than onehalf a kilogram of cocaine worth $62,500 and had an extensive record including three previous drug trafficking convictions. He hadpreviously served a three year penitentiary sentence. R. v. Speziale , [2011] O.J. No. 3957 is a more current and applicable case. Mr.Speziale was convicted after trial of being in possession of 14.87 grams of cocaine for the purpose of trafficking and other drugs.

Age 29,he had a lengthy record which included crimes of violence and possession of drugs. His longest previous jail sentence was 45 days. Onappeal, a five year sentence was reduced to 14 months. The Court of Appeal noted the need to consider rehabilitation for the offender,and that the appropriate sentence fell within the range of a reformatory term for the small amount of cocaine involved.

Trafficking insingle grams of cocaine, by commercially motivated traffickers, commonly results in a nine month period of incarceration in this region.In referring to 14.87 grams of cocaine as a small amount of cocaine, I understand the Court of Appeal to mean relatively small, comparedto the half kilogram amount in R. v. Bajada , which they reviewed. Clearly, Mr. Lewis has trafficked a larger amount of cocaine thanMr. Speziale had in his possession for the purpose of trafficking.

While larger quantities of drugs will generally result in proportionatelylarger sentences, I do not consider strict mathematical multipliers to be determinative of the sentence to be imposed which must be abalance of all relevant sentencing factors. Mr. Lewis has pled guilty to the drug offences, he has no previous like convictions or convictions for weapons offences. He hasserved two short adult sentences and is physically and intellectually capable of success in the community if he chooses a law abidinglifestyle. Given his youth, rehabilitation remains a factor that deserves considerable weight.

I do not consider Mr. Lewis to be at thepoint where protection of society by way of a long penitentiary sentence is appropriate. Given the pressing public concerns over gun violence and particularly given Mr. Lewis’ offer to obtain the firearm being made inthe context of drug trafficking, a significant denunciatory sentence associated with it is appropriate. Please stand Mr. Lewis.

I consider a three year sentence to be the appropriate period of incarceration in this matter in totality. Concurrently on all three counts of trafficking, I will note your one year of pre-trial custody and give you credit for that on a one for one basis for a total sentence credit of one year and there will be a one year less one day concurrent sentence on these three charges. On the trafficking in a firearm charge, there will be a one year consecutive sentence imposed, for a total sentence of two years less one day, in addition to the pre-sentence custody. That will be followed by probation for three years.

The probation order including many statutory terms and conditions including one that you keep the peace and be of good behavior and the others which I will direct the court staff to explain to you before you leave the building here today. Additionally, you will be required to report once per month or as often as required to a probation officer and to reside at a place approved of by your probation officer and to attend and actively participate in any assessment and counseling that may be required of you by your probation officer to the satisfaction of your probation officer.

Further, you will not possess any non-prescribed drugs or medications listed in the Controlled Drugs and Substances Act. You will be required to provide a sample of your bodily substances to the Durham Regional Police Service for DNA typing purposes and on all offences there will be an order pursuant to

Section 109 of the Criminal Code for a period of ten years from today’s date prohibiting you from possessing any firearms, ammunition, or the other related items listed in the Criminal Code . I thank Counsel for their assistance and commend them on the excellent factums provided in this matter. P.L. Bellefontaine, Justice