His Majesty the King - v. -, 2023 SKPC 48

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 48 Date: April 20, 2023 Information: 24425214 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Anthony Lance Swanson -and- The Attorney General of Saskatchewan (Intervener) Appearing: Arjun Shankar For the Crown Louis Mercier For the Accused Katherine Roy For the Attorney General of Saskatchewan SENTENCING DECISION A. C RUGNALE-REID , J

INTRODUCTION [ 1 ] The defendant, Anthony Lance Swanson, entered a guilty plea to a charge that between October 6, 2020, and January 19, 2021, at or near Regina, Saskatchewan he did transfer a firearm knowing that he was not authorized to do so, contrary to s. 99 of the Criminal Code [ Code ]. This charge consolidated two counts on Information 24425214 to include a s. 99 offence committed on October 6, 2020, and a second s. 99 offence committed on January 19, 2021. [ 2 ] This is the sentencing decision. [ 3 ]

Section 99 firearms trafficking offences are subject to a mandatory minimum sentence of 3 years imprisonment under s. 99(2) (

a) of the Code for a first offence. [ 4 ] The defendant has brought a challenge under s. 12 of the Charter of Rights and Freedoms [ Charter ] to the constitutionality of the mandatory minimum. He argues that the mandatory minimum is grossly disproportionate to the fit sentence and so constitutes cruel and unusual punishment in his particular case, which includes Gladue factors, thereby violating his rights under s. 12 of the Charter .

He argues that the mandatory minimum provision ought to be declared of no force and effect pursuant s. 52 of the Constitution Act, 1982 . [ 5 ] The Crown opposes the defendant’s application, arguing that the appropriate sentence in his case is a sentence in excess of the mandatory minimum. The Crown argues that there is therefore no violation of the defendant’s s. 12 Charter rights and no need to consider the constitutionality of the mandatory minimum since it is moot and would have no impact on the sentence.

Even if it is not moot, the Crown submits that the mandatory minimum sentence does not amount to cruel and unusual punishment under s. 12 of the Charter . [ 6 ] The Attorney General for Saskatchewan (Attorney General) also opposes the application and also submits that a fit sentence for the defendant is in excess of the mandatory minimum, and therefore the constitutional question is moot. If the Court finds otherwise, the Attorney General submits that the mandatory minimum is not grossly disproportionate and there is no s. 12 violation.

Further, if this Court were to find the mandatory minimum to be grossly disproportionate to the appropriate sentence for the defendant, the Attorney General does not seek to justify the mandatory minimum under s. 1 of the Charter . Analytical Framework for a s. 12 Charter Challenge [ 7 ]

Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment”. [ 8 ] In the recent case of R v Hills , 2023 SCC 2 , 422 CCC (3d) 1 [ Hills ], and its companion case of R v Hilbach , 2023 SCC 3 [ Hilbach ] the Supreme Court of Canada addressed s. 12 challenges.

Both cases involved challenges to the mandatory minimums for certain firearms related offences. [ 9 ] In Hills , the Court affirmed and clarified the two-stage inquiry for assessing s. 12 challenges to mandatory minimums previously set out in its jurisprudence, principally in R v Nur, 2015 SCC 15 , [2015] 1 SCR 773 [ Nur ]; R v Bissonnette , 2022 SCC 23 , 414 CCC (3d) 1; R v Lloyd , 2016 SCC 13 , [2016] 1 SCR 130 [ Lloyd ] as well as in other cases, and provided additional guidance. [ 10 ] The two-stage inquiry is set out in paragraphs 40 to 42 of Hills as follows: [40] To assess whether a mandatory minimum violates s. 12 of the Charter , this Court has developed a two-stage inquiry that involves a contextual and comparative analysis ( Bissonnette , at para. 62 ).

A court must: 1. Assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code ( Bissonnette , at para. 63 ; Boudreault , at para. 46; Nur , at para. 46 ).

2. Consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merelyexcessive, to the fit and proportionate sentence (Bissonnette, at para. 63; Nur, at para. 46; Smith, at p. 1072). The constitutional bar is sethigh to respect Parliament’s general authority to choose penal methods that do not amount to cruel and unusual punishment. [41] This two-part assessment may proceed on the basis of either (

a) the actual offender before the court, or (

b) another offender in areasonably foreseeable case or hypothetical scenario (Bissonnette, at para. 63; Nur, at para. 77). [42] Where the court concludes that the term of imprisonment prescribed by the mandatory minimum sentence provision is grosslydisproportionate in either case, the provision infringes s. 12 and the court must turn to consider whether that infringement can be justifiedunder s. 1 of the Charter if arguments or evidence to that effect are raised by the Crown (Boudreault, at para. 97; Nur, at para. 46). [11] As mentioned above, the constitutional bar or standard for finding a mandatory minimum sentence grossly disproportionate atstage two is set high.

The Supreme Court stated at para. 51 that: The mandatory minimum sentence must be more than merely excessive, unfit or disproportionate. It must be “so excessive as to outragestandards of decency” (Hills, at para. 109, citing Boudreault, at para. 45; Lloyd, at para. 24, citing Morrisey, at para. 26; R. v. Wiles, 2005SCC 84, [2005] 3 S.C.R. 895, at para. 4, citing Smith, at p. 1072). It is only on “rare and unique occasions” that a sentence will infringes. 12, as the test is “very properly stringent and demanding” (Steele v.

Mountain Institution, (SCC), [1990] 2 S.C.R.1385, at p. 1417. [12] The Supreme Court in Hills affirmed the validity of using reasonable hypotheticals and outlined further guidance for their use.At para. 93 the Court stated that “It is up to the offender/claimant to articulate and advance the reasonably foreseeable hypotheticalwhich forms the basis for the claim that the impugned provision is unconstitutional”.

The Court added that the hypothetical is best testedthrough the adversarial process with all parties ideally having an opportunity to challenge or comment on the reasonableness of thehypothetical. [13] In the case before this Court, the defendant did not advance a challenge to the mandatory minimum on the basis of anyreasonably foreseeable hypothetical.

Accordingly, the Court will consider what constitutes a fit sentence in the defendant's particular caseonly. [14] It should be noted that in initially bringing his s. 12 challenge, the defendant relied primarily on the Alberta Court of Appealdecision in R v Hilbach, 2020 ABCA 332 where the Court found that the 5-year mandatory minimum for the offence of robbery with aprohibited firearm contrary to s. 344(1)(a)(

i) violated s. 12 in the case of an Indigenous person who had substantial Gladue factors.

TheSupreme Court has now overturned the Alberta Court of Appeal decision and upheld the constitutionality of the mandatory minimumsentence provision in its decision. [15] In Hilbach, at paras. 42-44 the Supreme Court of Canada specified that there are three distinct aspects of the s. 12 analysiswhere Gladue issues are to be considered in the case of an Indigenous offender and they include at the stage of determining a fitsentence, when crafting reasonably foreseeable hypotheticals, and in the gross disproportionality analysis. [16] Before moving to the first stage of the inquiry of determining the fit sentence in the case before the Court, it is worth notingthat provincial court judges do not have the power to make declarations that a law is of no force and effect (Lloyd at para. 15).

However,they do have the power to determine the constitutionality of a law that is properly before them (ibid). If a provincial court judgedetermines that a law is unconstitutional, the judge can refuse to apply the law in the case at bar but such a finding does not render thelaw of no force and effect (ibid at para. 19). [17] Additionally, there is no obligation on this Court to consider the constitutionality of a mandatory minimum sentence if theprovision is moot and would have no impact on the sentence being imposed (Lloyd, at para. 18).

FACTS Circumstances of the Offence [18] An Agreed Statement of Facts was filed with the Court. The circumstances are as follows.

[ 19 ] On January 14, 2021, the Regina Police Service (RPS) received information about a suspicious firearm purchase from a Cabela’s store in Regina. The purchaser was identified as the defendant, Anthony Swanson. He possessed a valid possession and acquisition licence and paid for the firearms in cash. The Regina Police Service conducted checks on the defendant and had reason to suspect he was acting as a straw purchaser in the firearms transaction. [ 20 ] On January 19, 2021, the defendant returned to Cabela’s to pick up the firearms.

The Regina Police Service conducted surveillance at this time and saw the defendant, accompanied by his girlfriend, arrive in an Acura ILX. [ 21 ] The defendant completed the firearm paperwork in the store and then left the store carrying two Cabela’s plastic bags, a large black hard case, and a black Glock case.

He placed these items in the trunk of the Acura. [ 22 ] The four handguns purchased by the defendant were restricted firearms and were identified as: - a Glock Model 17, Generation 5 handgun; - a Smith and Wesson Model SD9VE handgun; - a Smith and Wesson Model M & P M2.0 handgun; and a - Girsan Model MC 28 SA handgun. [ 23 ] The defendant then drove from Cabela’s to a parking lot behind 29 Centennial Drive. He was followed by Regina Police Service officers. The officers observed the defendant exit his vehicle and go into a dark-coloured Hyundai occupied by Abdullahi Moalin and Hamza Moalin.

The defendant then exited the Hyundai holding a light, green coloured bag as he walked to the trunk of his Acura. [ 24 ] The defendant opened the trunk of his Acura. One of the males from the Hyundai came and reached into the trunk. The male pulled out dark green and light green Cabela’s bags and then walked back to the Hyundai and placed the two bags into the trunk. Both vehicles departed. [ 25 ] Members of the RPS eventually stopped the defendant and arrested him. A search of the Acura incident to arrest revealed no firearms, but a small amount of cocaine, $4,015.00 in cash, and two cell phones were found.

The defendant maintains that $4,000.00 of the cash was from a bank withdrawal he had made some six days earlier on January 13, 2021, from monies he had received as part of a settlement. [ 26 ] Officers also followed the Hyundai to a residence into which the green bags received from the defendant were taken. A search warrant for the residence was executed by police and all four firearms purchased by the defendant on January 19, 2021, were found inside. [ 27 ] The defendant admits to buying, possessing and transferring the four restricted firearms to Abdullahi Moalin and Hamza Moalin on January 19, 2021.

He provided a statement confessing to the incident and indicated that during the transaction, he was provided with drugs, instead of a previously agreed upon sum of money. [ 28 ] He also admits that on a previous occasion on October 6, 2020, he offered to transfer a firearm to Abdullahi Moalin contrary to s. 99 of the Code . On that occasion the defendant had a text exchange with Abdullahi Moalin during which Mr. Moalin asked the defendant for a “strap” which appears to be a slang term he used for a firearm.

The defendant responded that he had a firearm with “4 clips with 100 bullets” and said that he needed “str8 cash”. After some discussion about price, the defendant indicated that the serial number needed to be filed off and that Mr. Moalin needed to obtain a Dremel tool to do so. The parties agreed to meet at the east Walmart store at 09:00 hours. It is uncertain whether the transaction was completed. [ 29 ] The police obtained records from Cabela’s showing the defendant’s purchase history.

The records showed that in addition to the four handguns in question, the defendant had purchased eight other firearms from Cabela’s. None of these eight firearms were in the defendant’s possession on January 21, 2021, when a public safety search warrant was executed at the defendant’s residence.

[ 30 ] A few days later the defendant was charged with failure to report lost firearms in January of 2021 contrary to s. 105(1) of the Code . He entered a guilty plea to this charge several months later in November of 2021 and received a fine of $1,000.00 and a 5 yr. s. 110 firearms prohibition. [ 31 ] Apart from this conviction for failure to report lost firearms, there is one other conviction on the defendant’s criminal record for an exceed .08 offence in 2016 for which he received a fine and driving prohibition.

Personal Circumstances of the Defendant [ 32 ] A pre-sentence report was prepared and filed. [ 33 ] The defendant is 35 years old. He is a member of Peepeekesis Cree Nation. His father is deceased, and his mother is unwell. He has one sister who lives and works in Regina. [ 34 ] He has been employed in the rebar iron work business since 2007 and has worked seasonally for his uncle in this field since approximately 2008. At the time of the offence, he was unemployed and receiving welfare. At present he is employed fulltime working for his uncle.

He obtained his grade 12 GED equivalency in 2019 and has heavy machinery certificates. He is also a certified baseball coach. [ 35 ] The defendant is a single father of four and resides on Peepeekisis Cree Nation. He has care of his three oldest children, daughters aged 15, 12 and 11 years, because their mother developed a serious meth addiction and was not able to properly care for them. His fourth and youngest child is a daughter born in April of 2022 from a different relationship and she lives with her mother and grandmother. The defendant says that this relationship ended due to the mother’s drinking.

The defendant provides financially for all of his children, including providing financial assistance to his children’s mothers and his own mother, who lives next door to him. The defendant’s mother helps him out when she can, however she has cancer and a collapsed lung and is in poor health. [ 36 ] The defendant himself suffers from a severe form of rheumatoid arthritis for which he takes medication.

He also reports suffering from depression stemming from stress over his rheumatoid arthritis, his mother’s poor health, and his father’s passing. [ 37 ] The defendant’s father passed away in 2022 after the defendant took care of him for 12 years, both physically and financially, following an aneurysm. The defendant also helped care for his sister when she was a child and helped take care of her son when he was four months to five years of age. [ 38 ] The defendant recalls his childhood as having good and bad memories.

He experienced physical and emotional abuse and witnessed abuse in the home which his father perpetrated on him and his mother. The defendant often stood up for his mother, but his father would react with physical abuse towards him. [ 39 ] During the defendant’s childhood, his father assaulted him on multiple occasions. His father was charged and convicted for assaulting the defendant when he was a child and spent 6 months in jail for the assault.

He forgives his father and still loves him despite the abuse. [ 40 ] He also was physically abused on occasion by his paternal grandmother. [ 41 ] He spent most of his childhood in Regina and on Peepeekisis Cree Nation. He lived with his grandmother and aunt from age 8 and a half to 11 while his parents were incarcerated. From age 12 and onwards, he lived with his parents and sister on Peepeekisis Cree Nation.

[ 42 ] The defendant grew up in poverty. During his childhood his father used and sold drugs and his mother sold drugs to provide for the family. He reports that experiencing substance abuse in his childhood made him want a different life and to never have his children see it, thus, it motivates him to try to be a good father. [ 43 ] The defendant struggled in school. He was bullied and was kicked out of multiple schools for violent outbursts.

The defendant’s best childhood friend died by suicide when he was a child. [ 44 ] The defendant reports that he has lost several extended family members over the years to overdose, COVID-19, and murder. [ 45 ] The defendant first tried alcohol at age 7. In 2017 or 2018 he started drinking alcohol heavily on the weekends. [ 46 ] At 18 years of age, he got a medical marijuana card and uses marijuana based on available finances. [ 47 ] He started using cocaine in June of 2020, due to his failed marriage, news of his mother’s cancer and of his father not having long to live.

He used the cocaine in conjunction with alcohol approximately every other weekend. He states that his last use of alcohol and cocaine was in January of 2021. [ 48 ] The defendant reported that although he was sober on the date of the offence, his alcohol and cocaine use led up to the offence. He said that he was dealing with depression and thoughts of rheumatoid arthritis crippling him and affecting his ability to care for his children. He found that hard liquor would help his movements in relation to the arthritis and he drank to drown his emotions and numb his pain.

He has never received any treatment for alcohol or drug use. [ 49 ] He reports that he has experienced racism with employment and in other day to day activities. He says he can send out 100 resumes a day and not get a reply. [ 50 ] He expresses remorse for his actions and is described in the pre-sentence report as having a prosocial attitude and a prosocial support system. [ 51 ] Letters of support were filed on behalf of the defendant by members of his community. [ 52 ] The defendant has been assessed at medium risk to reoffend.

ISSUES [ 53 ] The first issue is what is the fit and proportionate sentence in the defendant’s particular case having regard to the objectives and principles of sentencing in the Criminal Code . [ 54 ] The second issue is, if the fit and proportionate sentence is less than 3 years, is the mandatory minimum provision grossly disproportionate to the fit sentence, thereby violating the defendant’s s. 12 rights. If so, should the provision be deemed of no force and effect?

Position of the Parties [ 55 ] With respect to the first issue, the defendant submits that the fit and proportionate sentence in his case is a conditional sentence order for 2 years less a day, having regard to the sentencing principles in the Code , the case law and the circumstances of the offence and his circumstances, particularly his Gladue factors.

[56] The Crown submits that the appropriate sentencing range for the defendant is a term of imprisonment between 4.5 and 5.5years, given the sentencing principles in the Code, the case law and the circumstances of the offender and the nature of the offences,which the Crown submits are very serious. LAW AND ANALYSIS [57] The guiding sentencing principles are set out in sections 718 through 718.2 of the Code. [58]

Section 718 states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law andthe maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: todenounce unlawful conduct and the harm done to victims or the community; to deter the offender and others from committing offences;to separate offenders from society, where necessary; to assist in rehabilitating offenders; to provide reparations for harm done to victimsor to the community; and to promote a sense of responsibility in offenders and acknowledge the harm done to victims or to thecommunity. [59]

Section 718.2 requires the Court to consider any relevant aggravating or mitigating factors, parity, totality, and whether lessrestrictive sanctions would be appropriate in the circumstances. [60]

Section 718.2(

e) requires the Court to consider whether a sentence other than imprisonment would be reasonable in thecircumstances and consistent with the harm done to victims or the community, with particular attention to the circumstances ofAboriginal people. [61] The fundamental principle is that the sentence must be one that is proportionate to the gravity of the offence and the degree ofresponsibility of the offender, as set out in s. 718.1. [62] With respect to firearms related offences, the Supreme Court of Canada, as well as many other courts across Canada, haveemphasized both the seriousness of gun crime and the growing public safety concerns over increased gun violence, given the inherentdangerousness of firearms and the proliferation of guns in our communities. [63] In Nur, the Supreme Court of Canada stated at para. 131 that: [131] Gun crime is a matter of grave and growing public concern.

Successive Parliaments have responded by enacting laws designed todenounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as “a directresponse to the scourge of handgun crime that plagues our country”… [64] At para. 136 the Court in Nur quoted from one of its previous decisions, R v Felawka, (SCC), [1993] 4 SCR199 and said the following: …In R. v.

Felawka (SCC), [1993] 4 S.C.R. 199, the Court recognized that “[a] firearm is expressly designed to kill orwound” and that “[n]o matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat ofdeath to those in its presence” (p. 211). As the Attorney General of Canada observes in his factum, this sober reality resonates all themore for “restricted firearms (principally handguns) and prohibited firearms (principally machine guns and sawed-off rifles orshotguns)”: A.F. (Nur), at para. 64.

These firearms are “the most strictly regulated because they are either easily concealable or generallydo not serve a legitimate hunting or target shooting purpose” (ibid.). Outside of law enforcement, these guns are primarily found in thehands of criminals who use them to intimidate, wound, maim, and kill. [65] In Hills, the offences included an offence of discharging a firearm into a home.

[ 66 ] In Hills , late one night and while high on alcohol and prescription drugs, the offender swung a bat at a passing car as he was walking down a residential street. He then fired a shot at it with a hunting rifle. He broke the window of another parked car then approached a residence occupied by two parents and their two children. He fired shots at the home. One of the shots penetrated the computer room where the father was sitting. The father confronted the offender outside, but he fired again and missed. The father called 911. The police arrived and arrested the offender.

A number of shots had penetrated the house in places where a person might have been. [ 67 ] The offender was charged with several offences and after preliminary inquiry pled guilty to discharging a firearm into or at a house contrary to s. 244.2(1) (

a) of the Criminal Code , and three other offences. He did not recall the incident or any reason for his conduct. [ 68 ] The offender, who was Métis, was genuinely remorseful. He had no prior criminal record. He had steady employment, had made significant rehabilitative efforts and had spent 5 years on conditions. He had the support of family, friends and coworkers. It appears a Gladue report was filed although there is little detail about its contents in the reported decisions.

The offender conceded that the 4-year minimum was appropriate in his case, but challenged the mandatory minimum based on a reasonable hypothetical. [ 69 ] The Alberta Queen’s Bench Court sentencing judge allowed the constitutional challenge, found the impugned provision to be of no force and effect and sentenced the accused to 3.5 years. [ 70 ] On appeal the Alberta Court of Appeal found there was no s. 12 violation and imposed the minimum of 4 years imprisonment. [ 71 ] Ultimately on appeal to the Supreme Court of Canada, the Court concluded that the mandatory minimum was grossly disproportionate in a reasonably foreseeable hypothetical and reinstated the 3.5-year sentence imposed by the sentencing judge. [ 72 ] In Hilbach , the offences were armed robbery involving two separate offenders, one being Mr.

Hilbach and the other Mr. Zwodesky. The Court upheld the mandatory minimums following s. 12 challenges in the cases of both Mr. Hilbach and Mr. Zwodesky who had committed separate armed robbery offences. [ 73 ] Mr. Hilbach, who was a 19 year old Indigenous male, pled guilty to a charge of robbery of a convenience store with an unloaded prohibited firearm contrary to s. 344(1)(a)(

i) which had a mandatory minimum sentence of 5 years’ incarceration. [ 74 ] The prohibited firearm was a sawed-off shotgun. The offender’s 13-year-old accomplice assaulted a store clerk during the robbery. The two ran off with $290.00 in lottery tickets. The offender was on probation at the time and was also subject to a firearms prohibition order. He had been sentenced three months earlier for other offences. He had a criminal record which included convictions for other threats, assault, mischief and breaches of recognizance.

A Gladue report was filed and there was a family history of residential school, physical abuse, family violence, chronic unemployment and gang involvement. [ 75 ] The offender argued before the sentencing judge that the mandatory minimum of 5 years was grossly disproportionate to him as an Indigenous person with significant Gladue factors. The Alberta Queen’s Bench Court sentencing judge agreed that the mandatory minimum was grossly disproportionate in his case and imposed a sentence of 2 years less a day.

On appeal the Alberta Court of Appeal also agreed that the mandatory minimum was grossly disproportionate in the offender’s case but increased the sentence to 3 years. [ 76 ] Upon further appeal to the Supreme Court of Canada, the Supreme Court ultimately determined that the mandatory minimum sentence of 5 years did not violate s. 12 because the penal purpose of the mandatory minimum was valid in prioritizing denunciation and deterrence. [ 77 ] The Supreme Court held that the gravity of the offence and moral blameworthiness of offenders is high in robbery with firearm offences.

At para. 55, the Court noted that the presence of a firearm, even an unloaded one, creates a highly volatile and dangerous situation. [ 78 ] The Court considered that this was a “true crime” situation as in Nur (paras. 58 and 105 ). The Court found Mr. Hilbach’s sentence should be increased to the 5-year mandatory minimum, and while harsh or even excessive in his case, particularly as he was Indigenous and the sentence would be relatively more severe for him and would have detrimental effects on his rehabilitation, it was not, however, grossly disproportionate.

The Court, however, ultimately stayed the differential in sentence in recognition of the passage of

four years from sentencing. [ 79 ] With respect to Mr. Zwodesky, he was 53 at the time he committed two robbery offences pursuant to s. 344(1)(a.1) to which he pled guilty. He had many psychological issues arising from prior car accidents over the years. He was sentenced as a party to two robberies where he was the getaway driver. The first robbery was of a convenience store where one of his accomplices fired a sawed-off shotgun in the store, the other pushed the female clerk, pointed a gun at her and ordered her to put money in a bag. They made off with less than $5,000.00.

The second robbery was of a rural convenience store where one of his accomplices carried a shotgun and the other pepper sprayed the clerk. [ 80 ] Mr. Zwodesky had originally been sentenced to a total of 4 years (3 years on 1 robbery and 1 year consecutive on the second) by the Albert Queen’s Bench Court sentencing judge, who had concluded the mandatory minimum was not grossly disproportionate for the offender but was grossly disproportionate in some reasonable hypothetical situations.

The Alberta Court of Appeal upheld the 4-year total sentence and agreed that the mandatory minimum was grossly disproportionate in certain hypotheticals. Ultimately the Supreme Court disagreed and found the hypotheticals insufficient to establish that the mandatory minimum of 4 years was grossly disproportionate.

Once again, the Court found that parliament justifiably prioritized denunciation and deterrence for this offence and the hypotheticals did not show that 4 years imprisonment for robbery with a firearm was out of sync with sentencing norms (para. 84). [ 81 ] In Nur , a 19-year-old first offender, was caught in brief possession of a loaded .22 calibre handgun outside a community centre. He threw it aside immediately. He entered a guilty plea at trial and had good prospects for rehabilitation. Nonetheless, he received a sentence of 40 months.

Despite its conclusion that the applicable mandatory minimum violated s. 12, the Supreme Court of Canada did not comment adversely on the sentence saying at para. 120: “It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar.” [ 82 ] The aforementioned cases from the Supreme Court illustrate that serious firearms related offences attract significant and exemplary custodial sentences even for first-time offenders. [ 83 ] Counsel have filed a number of other cases for the assistance of the Court, particularly in respect of s. 99 firearm trafficking offences. [ 84 ] The defence referred to a number of cases as discussed below. [ 85 ] In R v Friesen , 2015 ABQB 717 [ Friesen ], a first-time 48-year-old offender pled guilty to transferring non-restricted firearms contrary to s. 99 of the Criminal Code .

The offender owned a general store in a small community. A friend of the offender who was suffering from depression purchased a rifle from the offender at his store and the offender made no inquiries to confirm if his friend had the appropriate licence to possess or acquire the firearm. The friend purchased another rifle a couple weeks later and the offender again did not inquire whether he could lawfully possess the firearm. The friend died by suicide using a rifle purchased at the offender’s store. The offender’s store was not licenced to sell firearms at that time.

The offender had the support of the community. The Court found the offender’s moral blameworthiness was on the low end of the spectrum. The Court noted that the transfer of a non-restricted firearm was different from the transfer of a restricted or prohibited firearm. The Court allowed a s. 12 challenge and found the mandatory minimum grossly disproportionate and imposed a 6-month conditional sentence order and $5,000.00 fine. [ 86 ] In R v Martin , ( 24 January 2014) Brantford Court File No. CR-10-96, a 1 year conditional sentence order was imposed for a conviction for trafficking firearms.

This is an unpublished decision, and no further facts were provided by counsel. Thus, it is of little assistance in determining an appropriate sentence for the defendant. [ 87 ] In R v Stover , 2018 BCPC 198 [ Stover ], a first-time offender entered guilty pleas to four s. 99 counts of trafficking in firearms, three of which were restricted firearms, and one guilty plea to breach of bail as the offender was not able to turn over to police 13 firearms she had purchased over the preceding six months.

After picking up three handguns from the gun store, the offender went to a nearby restaurant and transferred the three handguns to her co-accused before going home. The offender was 43 years old, single, had an adult daughter, and had been employed as a security guard for 20 years prior to being arrested for the offences. The offender had chronic leg pain. She had character references. The offences were not motivated by or the result of an addiction to drugs or alcohol.

The offender was referred to as a straw purchaser, which is someone who, on the surface, is a legal and legitimate gun purchaser but who is purchasing the weapons on behalf of, or for the benefit of, an individual who cannot legally or legitimately acquire the firearms. The four firearms involved in the offence were recovered at the home of the co-accused. The Court determined that the range of sentences in this kind of case was 3 years in jail at the bottom end and 8 years in jail at the top end (para. 72).

The offender was sentenced to 3.5 years, which recognized her considerable moral blameworthiness and the serious denunciation required for trafficking lethal weapons within

the criminal underworld. [ 88 ] The Crown referred to many cases and of these, several cases appear to be particularly comparable or relevant. [ 89 ] In R v Neault , 2013 SKPC 174 , the 20-year-old offender broke into two motor vehicles and stole three firearms (two rifles and a shotgun) as well as some ammunition and other items. The offender found a buyer and sold the three firearms to another person. After this, he committed further property offences and misled the police. As a result, the offender pled guilty to five charges, including a s. 99(2) charge of trafficking the three firearms.

The offender had a sporadic work history and had experimented with illicit drugs since he was 13 and used alcohol since age 17. He consumed drugs and alcohol at the time of some of the offences but had been sober since his release. He was a high risk to reoffend and the motivation for committing the offences was financial gain. He had a minimal criminal record. His only conviction as an adult was for possession of a weapon dangerous to the public peace. The Court found that his moral culpability was high, he stole the firearms, took the initiative to locate a buyer, and arranged for the sale to another person.

He lacked insight into his behaviour. The firearms were not recovered. [ 90 ] The offender in Neault brought a constitutional challenge alleging that the mandatory minimum of 3 years violated his s. 12 right to be free from cruel and unusual punishment. A significant period of incarceration was considered warranted by the Court to denounce his conduct. Specific and general deterrence were also important.

The Court found that the appropriate sentence was 3 years for the s. 99(2) offence and thus the constitutional question was academic. [ 91 ] In R v Charles , 2014 SKPC 189 , a first-time offender was convicted after trial of

section 94 and 95 offences of being an occupant of a motor vehicle in which he knew there was a firearm, of possessing a loaded, prohibited firearm, which was a 9mm semi- automatic handgun and of an offence under the Controlled Drugs and Substances Act , SC 1996, c 19 , of possessing eight baggies of cocaine. The offender was 22 at the time of the offences. He had a young daughter and was an engaged parent. He was employed and volunteered as a coach in youth sports. [ 92 ] A constitutional challenge was brought alleging that the mandatory minimum of 3 years violated the offender’s s. 12 Charter rights.

The Court found that the combination of a loaded handgun and cocaine in a public place to be very aggravating. The Court found the appropriate global sentence was in the range of 3 to 3.5 years, and given his youth, lack of a criminal record, and rehabilitative efforts, a global sentence of 3 years was imposed. Given this finding, it was not necessary to consider the constitutionality of the mandatory minimum. [ 93 ] In R v Waldron , 2015 ONCA 586 , the offender appealed his 5-year sentence for offering to sell six guns.

The offender was aware that the proposed sales were illicit and that the guns would be used for a criminal purpose. His motive was profit driven and the offences were considered to be very serious. The offender did not challenge the constitutionality of the 3-year mandatory minimum. In dismissing the appeal, the Ontario Court of Appeal noted that the sentence was entirely fit, even in light of the appellant’s demonstrated efforts at rehabilitation. [ 94 ] There is however no information in the decision as to the offender’s prior criminal record, if any and of the circumstances.

The Waldron decision is therefore of limited assistance. [ 95 ] In R v Datta , 2021 ONSC 2136 , the offender was found guilty of two counts of trafficking firearms, two counts of possessing a firearm for the purpose of trafficking and five additional counts related to possession of cocaine and fentanyl for the purpose of trafficking and proceeds of crime. The circumstances of the offences were such that the offender sold two firearms to an undercover officer for $7,500.00. The offender was 44 years old with no children and no consistent employment.

His record was largely dated with one drug trafficking conviction, one for possession of a

Schedule I substance, one fail to comply with a recognizance and convictions for failing to stop for police and obstruct police. The offender was the victim of physical abuse at the hands of his father and was exposed to alcohol abuse. His mother was supportive, as were his friends in the community. The Court stated that the offences of trafficking in firearms and possession of firearms for the purpose of trafficking each warranted a sentence in the range of 3 to 5 years. The paramount sentencing objectives were denunciation and deterrence.

The Court noted that courts have repeatedly commented on the proliferation of guns in communities and the danger to the community from increased gun violence. Severe and exemplary sentences are required to deter gun violence. The Court also stated that firearms offences and drug offences are serious and dangerous when considered independently, and so the combination of the two is a further aggravating circumstance (para. 15).

The Court concluded that a global sentence of 11 years was appropriate of which the firearms offences comprised 5 years for the 2 firearms trafficking offences and 4 years concurrent for the possession of a firearm for the purpose of trafficking, all to be served concurrently. [ 96 ] In R v Boesel , 2017 BCSC 970 , the offender pled guilty to transferring a semi-automatic shotgun knowing that he was not

authorized to do so contrary to s. 99(1)(a). The offender had found the semi-automatic shotgun outside an apartment building and offered to sell it to an undercover RCMP officer, thinking that the latter was a drug dealer. The offender was 47 and had a prior criminal record mostly for property related offences, which the Court described as typical of a person who had a drug addiction. He described his father and stepfather as alcoholics and was exposed to yelling and outbursts in the home when his parents were together.

The offender lived on the streets for some time and eventually obtained his GED and journeyman certificates. He had one son. He also struggled with drug addiction. [ 97 ] The offender brought a constitutional challenge to the 3- year mandatory minimum alleging it violated his s. 12 rights both in his own case and in reasonable hypotheticals. The Court found the offence to be on the criminal end of the spectrum.

At para. 130 the Court stated: “ Whether the sentences for gun trafficking was before or after the three-year minimum mandatory sentence was legislated pursuant to s. 99 , the sentence ranges for the most part have not changed.

The ranges appear to be from three to four-years, increasing dependent upon the facts and their egregiousness and the number of counts that the offender was found guilty of or pled guilty to.” The Court found a 3-year sentence of incarceration to be a fit sentence and therefore the constitutional question did not need to be decided. [ 98 ] In R v Gill , 2018 BCSC 2410 [ Gill ], the offender pled guilty to two charges, one under s. 101(1) for transferring prohibited weapons without lawful authority and one under s. 104(1)(

a) for importing prohibited weapons without lawful authority. These offences carry a maximum of 5 years where the Crown proceeds by indictment and there is no mandatory minimum. [ 99 ] In Gill , the first-time offender travelled into the USA on multiple occasions and purchased eight firearms from an individual who was selling firearms without an appropriate licence. The offender then transferred the firearms to his brother for profit. The offender was 43 years of age and a father of two young children. He struggled with stress and anxiety, for which he received counselling.

The Crown submitted that the offender was aware of his brother’s association with criminal gangs and previous criminal activity at the time he sold the guns to his brother. [ 100 ] The Court was satisfied that incarceration was necessary, and that deterrence and denunciation were the prominent considerations, notwithstanding the importance of the rehabilitation of Mr. Gill and the requirement that all available sanctions other than imprisonment be taken into account.

The Court stated that the sentence must deter law-abiding citizens without previous criminal history and otherwise good character from being recruited into criminal activity and/or criminal gangs, and in particular equipping criminals with the means to carry out their dangerous activity.

The offender ultimately was sentenced to 2-years’ incarceration on each count to be served concurrently. [ 101 ] The Court in Gill did identify the offender’s deliberate deception of border services authorities and the profit motive as aggravating factors. [ 102 ] The aforementioned cases illustrate sentences ranging from community-based sentences for regulatory type offenses at the lower end of the spectrum of s. 99 offences to those that are “true crime” types of s. 99 offences and other firearms offences, for which substantial jail sentences were imposed. [ 103 ] The Friesen case is an example of a s. 99 offence with facts on the lower regulatory end of the spectrum.

It is distinguishable in that its facts are considerably less serious than those in the case at hand.

Friesen falls closer on the spectrum of s. 99 offences to a lower end regulatory licensing type of infraction for selling a non-restricted firearm in a retail business without proper licensing or authorization, than it does to a “true crime” type of firearms trafficking offence. [ 104 ] The Gill case is distinguishable in that the offences were charged under s.101 and s.104, which offences are less serious than s. 99 offences in that they are hybrid offences with no mandatory minimums and with a lower maximum penalty of 5 years whereas s. 99 offences are strictly indictable and carry a 10-year maximum. [ 105 ] The Stover case bears considerable similarity to the case at hand except that there were no Gladue factors in Stover .

A sentencing range was mentioned in Stover for true crime types of s. 99 firearms trafficking offences starting at 3 years at the bottom end to 8 years at the top end. [ 106 ] In Boesel , the Court, in dealing with a trafficking offence on the criminal end of the spectrum, referred to a sentencing range for s. 99 firearm trafficking offences, stating that whether before or after the mandatory minimum was introduced, the sentences appear not to have changed and the starting point is 3 to 4 years going upwards depending on the facts, egregiousness and number of offences

involved. [107] In the Court’s opinion, the firearms trafficking offences in the case before this Court are clearly on the higher or “true crime”end of the spectrum for s. 99 offences. The offences are very serious, and a substantial jail sentence is warranted, as can be seen from thecases discussed. [108] The offences before the Court include two incidents of trafficking, one involving multiple handguns for profit, in public, in acontext involving cocaine in the one instance, and in the other instance, counselling to deface a firearm.

Precedence must be given in thiscase to protection of the public and denunciation and deterrence. Rehabilitation is also a consideration. Aggravating and Mitigating Factors [109] There are a number of aggravating factors in this case.

They include the following: - a related criminal record with a conviction for failure to report eight other lost firearms which offence was charged two days afterthe January 19, 2020, offence occurred; - there were two separate s. 99 offences committed over the span of time charged; - multiple handguns, which are restricted firearms, were sold, specifically four of them; - during the October offence the defendant, in addition to offering the firearm for sale, counselled the purchaser to deface thefirearm by using a Dremel tool to remove the serial number, which suggested he knew the purchasers were involved in illegal activityand which was suggestive of an attempt to obstruct law enforcement; - cocaine was found in possession of the defendant immediately after the January 19, 2020 firearm transaction and he received drugsas part of the illegal transaction; - the handguns were transferred by the defendant in public, during the day, near a residential building in Regina; - the crime was motivated by profit or financial gain; - the handguns were sold to individuals involved in illegal drug distribution, as shown by the distribution of drugs to the defendantas part of the firearms sale transaction. [110] There are also a number of mitigating factors to be considered in this case which include the following: - the defendant has taken responsibility for the offences and entered a guilty plea; - he is remorseful; - he has the support of his mother and community, including Chief Francis Dieter of Peepeekisis Cree Nation; - he has pursued full-time employment since his arrest and is working full-time to support his four children and mother who is ill; - the defendant has abstained from alcohol and cocaine since the offence.

Gladue Factors [111] The defendant is an Indigenous person and particular attention must be given to his personal circumstances pursuant to s.718.2(

e) of the Code. [112] The Supreme Court at para. 39 in Hilbach reiterated that s. 718.2(

e) of the Criminal Code provides mandatory direction toconsider the unique situation of Indigenous offenders for all offences in sentencing (R v Gladue, (SCC), [1999] 1 SCR688 at para 93 [Gladue]; R v Ipeelee, 2012 SCC 13 at paras 84-85, [2012] 1 SCR 433. Sentencing judges must consider the uniquesystemic or background factors which may have played a

part in bringing the particular Indigenous offender before the courts and the

types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender ( Ipeelee at paras. 59-60 ). [ 113 ] The Saskatchewan Court of Appeal has, on numerous occasions, addressed Gladue factors, adding to the understanding of how to approach sentencing of Indigenous offenders. In R v Chanalquay , 2015 SKCA 141 , 472 Sask R 110 [ Chanalquay ] the Court called for a “more demanding” individualized analysis of the offender, offence, community and victim. [ 114 ] The Court in R v Whitehead , 2016 SKCA 165 , 344 CCC (3d) 1 stated that parity, while still relevant, must not be emphasized over s. 718.2 (

e) as the latter principle is more fundamentally connected to the individualized nature of sentencing. [ 115 ] In Chanalquay , Chief Justice Richards summarized the key points in Gladue and Ipeelee at paras. 34 and 35 wherein it was indicated that if there is no alternative to imprisonment available, the Court should carefully consider the length of the jail time imposed, and further that s. 718.2 does not require an automatic reduction in sentence simply because the offender is Indigenous. [ 116 ] Bearing these principles in mind , in this case the defendant’s unique systemic and background factors and circumstances include the following.

He is a member of the Peepeekisis Cree Nation. He spent most of his childhood and youth living on Peepeekisis and lives there today. [ 117 ] During his childhood, the defendant experienced the intergenerational impact of the residential school system through family violence and disruption, poverty, abuse, neglect and underemployment. He was exposed to drug and alcohol abuse in the home. His father attended day school and his mother attended residential school where she suffered physical and sexual abuse, which has had lasting effects on herself, her children, and grandchildren .

Both parents have been incarcerated at times while he was growing up and he has lived with extended family. He has lost family members to addiction and violence. [ 118 ] He is supporting four children and caring for three of the children whose mother has been unable to parent due to drug addiction. He says that having experienced poverty as a child motivates him to be a hard worker and not repeat what his parents did, recalling that his father put his mother out to prostitution and his parents’ sold drugs.

He reports experiencing racism in employment settings and in everyday activities. [ 119 ] In the Court’s opinion, it is evident that the defendant’s unique systemic and background factors and circumstances have played a role in bringing him before the Court and have impacted his moral culpability to some degree. SENTENCE [ 120 ] In deciding on the appropriate sentence, it is to be noted that the defendant has a limited criminal record. He has the support of his family and certain community members. He has abstained from the use of alcohol and cocaine since January of 2021.

Since the date of his last offence he has led a prosocial, productive life. He is employed and provides for his children, their mothers and his own mother. He is a single parent and has three of his four children in his care. He is active in his community. He has entered guilty pleas and expresses remorse for his actions.

He has followed his conditions of release and there are substantial Gladue factors in his case. [ 121 ] At the same time, however, the offences to which the defendant has pled guilty are serious, as evidenced by the 10-year maximum sentence fixed by parliament for s. 99 offences which are strictly indictable and as evidenced by the circumstances of the offences.

The courts have repeatedly highlighted the seriousness and harmfulness of gun crime and the concerns over public safety that proliferation of guns and increasing gun violence presents to our communities. [ 122 ] The defendant’s moral culpability is high, although it is impacted to some degree by his Gladue factors. His actions were planned and deliberate, and for profit. Multiple restricted handguns were involved, and they are a type of firearm that is easily concealed. [ 123 ] More than one offence occurred. In October of 2020 he offered a gun for sale to one Mr.

Moalin and recommended defacing the serial number. The counselling to remove the serial number suggests the defendant knew illegal activity or purposes were involved and it suggested an attempt to evade law enforcement.

[ 124 ] During the second occasion in January of 2021, he sold four handguns, not just one, and again Mr. Moalin was involved as one of the buyers. The handgun sale involved distribution of drugs by the gun buyers as payment. The defendant was found in possession of cocaine immediately after the transaction.

The combination of cocaine, and trafficking of multiple handguns for profit, is especially aggravating. [ 125 ] Additionally, the defendant entered a guilty plea to an offence in January of 2021 for failure to report lost firearms where he was unable to account for eight other firearms he had previously purchased from Cabela’s.

The defendant pled guilty to the charge of failing to report lost firearms in respect of these and he is not of course being sentenced for that offence but it serves to illustrate that this is not a case of a defendant being involved in a single isolated incident. [ 126 ] While the defendant’s prospects for rehabilitation appear to be real given his acquiring employment, maintaining sobriety and living in a law abiding manner since January of 2021, precedence must be given to public safety and denunciation and deterrence. [ 127 ] As stated earlier, it is clear that significant custodial sentences are warranted even for first- time offenders in s. 99 firearms trafficking offences where the nature of the offence is on the higher end of the spectrum.

Less restrictive sanctions than incarceration are not sufficient to address the gravity of the offences in this case. [ 128 ] Having taken all of the relevant sentencing provisions of the Code into account, as well as the case law, the submissions and the facts and circumstances, the aggravating and mitigating factors, and the defendant’s Gladue factors which operate to somewhat diminish the defendant’s moral culpability and affect the length of the sentence, I find that a fit and proportionate sentence is 3 years’ incarceration. [ 129 ] The sentence is intended to reflect denunciation and deterrence of firearms trafficking at a time where there is growing public safety concern about gun crime in our communities particularly when associated with other criminality, while at the same time recognizing the mitigating factors in this case, the defendant’s personal circumstances, rehabilitative prospects, and his substantial Gladue factors. [ 130 ] As a result of this determination as to the fit and proportionate sentence, it is not necessary to consider the second stage of the s. 12 inquiry as there is no violation of the defendant’s s. 12 Charter rights.

The issue of the constitutionality of the mandatory minimum provision is moot. [ 131 ] Ancillary Orders are granted as requested by the Crown: - a lifetime s. 109 weapons prohibition; - a discretionary DNA order pursuant to sections 487.04/487.051; - a forfeiture order under s. 491 in relation to all firearms and ammunition seized; - a forfeiture order under s. 490.1 in relation to all offence related property seized. [ 132 ] The victim impact surcharge will be waived due to the financial limitations of the defendant.

____________________________ A. Crugnale-Reid, J