Her Majesty the Queen - v. -, 2014 SKPC 189

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 189 Date: October 30, 2014 Information: 24021057 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adrian Charles Appearing: Bryce Pashovitz and Katherine Roy For the Crown Brad Mitchell For the Accused DECISION ON SENTENCING M.L. GRAY , J Background [ 1 ] The accused was convicted, after trial, of the following offences: (

i) being an occupant of a motor vehicle in which he knew there was a firearm contrary to s. 94 of the Criminal Code ; (ii) possessing a loaded, prohibited firearm contrary to s. 95 of the Criminal Code ; and

(iii) possessing cocaine, a controlled substance, contrary to s.4(1) of the Controlled Drugs and Substances Act. The Crown proceeded by indictment on all counts. [2] Prior to sentencing, an application was made to challenge the constitutional validity of the mandatory minimum sentencerequired by s. 92(2)(a)(

i) of the Criminal Code upon an indictable conviction for possessing a prohibited firearm. Sentencingsubmissions and argument on the constitutional validity were heard; counsel agreed that if the Court was to find that an appropriatesentence was three years incarceration, irrespective of the mandatory minimum, there would be no need to consider the constitutionalchallenge. Circumstances of the Offences [3] The circumstances of the offence were set out in detail in R v Charles, 2014 SKPC 76 , 2014 SKPC 076 [Charles]and will be summarized only briefly.

In October 2008, Saskatchewan police were notified that the accused was wanted on threeoutstanding warrants from Ontario in relation to an incident involving firearms. Officers from Ontario met with members of the RoyalCanadian Mounted Police in Saskatoon, and the arrest was effected on October 9, 2008. A vehicle driven by the accused was followedand stopped; the accused was approached while he was behind the wheel of his vehicle and arrested.

Incident to his arrest, his car wassearched and a loaded, 9 mm semi-automatic handgun was found beneath the floor mat on the front passenger side; the accused was seenleaning that way as the officer initially approached the car. Further, the vehicle search uncovered a film canister containing eightindividual baggies of cocaine in the centre console. This incident occurred in downtown Saskatoon in the afternoon of a week day. Circumstances of the Accused [4] Mr. Charles is now 28 years old; he was just 22 when these offences were committed.

He is one of five children who wereraised by their mother in Scarborough, Ontario. He attended a local school where he demonstrated an aptitude for football and, in spite ofthe negative influences of gangs and drugs in his neighbourhood, he was able to focus on school and athletics. This talent ultimatelybrought him to Saskatoon to play junior football with the Hilltops. At the time of these offences, he was in his third season with the teambut this ended with his arrest on October 9, 2008. In August 2009, he returned to play football with the University of Regina Rams whilestudying to become a youth worker.

He did not complete that program. He expresses the view that the charges before the Courtdestroyed his prospects of playing football at a professional level. [5] He has a five year old daughter and is an active and engaged parent although he no longer lives with the mother of his child. He is employed and volunteers his time as a coach in minor football and as a mentor and inspirational speaker for at-risk youth. He hasno criminal record. Subsequent to his arrest, he was issued a summons to compel his attendance at court and was not on any conditionsof release pending trial. According to an Affidavit of Mr.

Charles, which forms part of the court record, he was held in custodycontinuously from October 9, 2008 until sometime in December 2008. Defence Position [6] Counsel submits that an appropriate sentence for this accused for the offence of possessing a prohibited weapon should fallwithin the range of 18 to 30 months incarceration with probation to follow and that the sentences for possession of cocaine andoccupying a vehicle in which there was a firearm should be served concurrently. Counsel argues such a sentence is grosslydisproportionate to the three year mandatory minimum required by s. 92(2)(a)(

i) of the Criminal Code, and thus violates s. 12 of theCharter of Rights and Freedoms. He asks the Court to declare s. 92(2)(a)(

i) to be of no force or effect and to impose a sentence of lessthan three years incarceration. Crown Position

[ 7 ] The Crown takes the position that a sentence of three years is the appropriate disposition for this accused, in these circumstances, even without regard to the mandatory minimum imposed by s. 92(2) (a)(i). With respect to the constitutionality issue, the Crown submits that s. 95 of the Criminal Code criminalizes conduct which has shown to pose a serious threat to the safety of the public and that the penalty imposed by s. 92(2) (a)(

i) is a legitimate response by Parliament to tragedies caused by the misuse of firearms that are not legitimately owned. Consequently, the mandatory minimum sentence of three years does not constitute cruel and unusual punishment. Issue [ 8 ] What is the fit sentence for this accused without regard to the legislated mandatory minimum sentence? In other words, what is an appropriate sentence for this accused, in these particular circumstances, bearing in mind the purposes and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code and the relevant sentencing precedents?

If the appropriate disposition is three years incarceration or more, without reference to the statutory minimum, the constitutionality question becomes academic: See R v Christensen , 2012 BCPC 374 at para 40 ; R v Neault , 2013 SKPC 174 at para 32 [ Neault ]. The Law [ 9 ] Counsel filed several cases that I have read and considered even though all may not be referenced in my reasons: see Appendix A. With the exception of the Neault decision, which deals with trafficking in firearms, none of these cases are from Saskatchewan.

My own research reveals that our Superior Courts have not dealt with the issue of appropriate sentences for possession of loaded prohibited weapons in circumstances similar to those presently before the Court.

As a result, I turn to sentencing precedents from other jurisdictions for guidance. [ 10 ] In R v Nur , 2013 ONCA 677 [ Nur ], the Ontario Court of Appeal affirmed a 40 month sentence for possession of a prohibited weapon, but found the mandatory minimum sentence to be unconstitutional on the basis that a reasonable hypothetical did violate s. 12 of the Charter . [ 11 ] The circumstances in Nur were that a young man entered a community centre and advised a staff member that he thought someone was waiting outside to “get him”. The employee looked outside and saw a person he assessed to be threatening.

The centre was locked and the police were called. Officers arrived and saw four men standing at the entrance to the centre. On seeing the police, all four fled. Officers gave chase and the accused was seen to throw an object which was later discovered to be a loaded, fully operable, semi-automatic handgun with an oversize clip capable of firing 24 rounds. The accused was 19 at the time of the offence and 21 at the time of sentencing; he had no prior criminal record.

At para. 205, Doherty J.A., writing for the Court, said: Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum.

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. [ 12 ] In R v Smickle, 2014 ONCA 49 [ Smickle ], the police used a battering ram to enter an apartment in the course of executing a search warrant. On entry, they observed the accused stand up while holding a loaded semi-automatic handgun, cocked and ready to fire.

The Court accepted that the accused was a visitor, not a resident of the apartment, that he found the gun in the suite and that he was merely posing with it for photographs. At first instance, the mandatory minimum was declared unconstitutional and the accused sentenced to a one year Conditional Sentence Order. On appeal, the Ontario Court of Appeal declared that sentence to be “manifestly inadequate” and held that the appropriate sentence was two years less one day incarceration even though the accused was 27 years old, gainfully employed and had no prior record.

At para. 30 the Court said: The respondent’s conduct falls squarely at the “true crime” end of the s. 95 spectrum I described in Nur . He had a loaded cocked gun in his hand. He was engaged in conduct that posed a serious and immediate risk to others. He had no authority to possess the gun...even having regard to the personal circumstances of the offender, a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.

[ 13 ] In R v Vandyke , 2013 ABPC 347 , the accused was licenced to possess a handgun. While cleaning his guns in the garage, he left the handgun on the seat of his truck. When he got to a local drinking establishment, he noticed the gun and placed it in the waistband of his trousers. Once in the bar, he showed it to a patron for a second or two, which resulted in a report to police. There was no evidence that the gun was loaded or that the accused had any ammunition nearby. The Court adopted the reasonable hypothetical set out in Nur , and declared s. 92(2) (a)(

i) unconstitutional. A twelve month Conditional Sentence was imposed. [ 14 ] The Supreme Court of Canada considered the mandatory minimum sentence set out in s. 236 (

a) of the Criminal Code (manslaughter with a firearm) in R v Ferguson , 2008 SCC 6 . In that case, an on-duty police officer shot and killed a prisoner in a cell. At para. 28 the Court said: The mitigating factors are insufficient to make a four year sentence grossly disproportionate. The absence of planning, the apparent fact that Mr.

Varley initiated the altercation in the cell, and the fact that Constable Ferguson did not have much time to consider his response, are more than off set by the position of trust Constable Ferguson held and by the fact that he had been trained to respond appropriately to the common situation of resistance by a detained person...the mitigating factors do not reduce Constable Ferguson’s moral culpability to the extent that the mandatory minimum sentence is grossly disproportionate. [ 15 ] In R v Thompson , 2007 ONCJ 342 [ Thompson ], and R v Jarsch , 2007 BCCA 189 [ Jarsch ], decided while the mandatory minimum sentence for s. 95 was set at one year incarceration, both accused received sentences in the upper range of correctional time (20 months and 24 months respectively).

Mr. Jarsch was the owner and operator of a vehicle in which a number of loaded guns were found while Mr. Thompson was a passenger in a vehicle in which a loaded handgun was located. In Jarsch , the appeal court endorsed the premise that the paramount sentencing objectives for these kind of offences are public safety, general and specific deterrence and denunciation and although rehabilitation is important, it is secondary. [ 16 ] In R v Nuttley , 2013 ONCJ 727 , police learned, while in the course of investigating a domestic assault, that the accused owned a prohibited firearm.

This weapon, an AK47, was located at a separate residence, in the basement, in a duffle bag that was locked. Ammunition for the gun was also in the bag. There was no indication that the accused used, or threatened to use the weapon. The Court imposed a one year Conditional Sentence Order followed by three years probation, saying that the circumstances involved were more regulatory than true crime in nature. [ 17 ] Abdi Ishmael was a first time offender with good rehabilitative prospects who entered a guilty plea to possessing a loaded semi- automatic pistol: see R v Ishmael, 2014 ONCJ 136 .

Police executed a search warrant and the gun was found in a bedroom dresser. At the time the police entered, the accused was not holding the firearm, nor was it in plain view. After considering the decisions of Nur and Smickle , the Court concluded that “an upper-end reformatory term should normally be imposed on a first offender found in possession of a single loaded prohibited firearm, other than in a public place ”: para. 16 (emphasis mine).

The Court went on to point out that although the Ontario Court of Appeal in Nur struck down the overbreadth of s. 95, the Court of Appeal was strongly supportive of Parliament’s intent to staunch gun crimes. The Court also stressed the moral culpability of those crimes: see para 18. Finally, the Court concluded that an appropriate sentence for Mr.

Ishmael was two years less one day; however, as a result of significant credit given to the accused for his early guilty plea, he was sentenced to 18 months incarceration followed by two years probation. [ 18 ] In R v Ball, 2014 BCCA 120 , the accused carried a loaded handgun holstered under his clothing, drove out of town and fired a number of rounds. He returned and parked near a liquor outlet. He claimed to possess the handgun for protection and was in possession of cocaine at the same time. He had a prior record, and was prohibited from possessing firearms at the time of the offence.

A pre- sentence report was described as “glowing”. At the first instance, the accused was sentenced to three years for the s. 95 offence; this was increased, on appeal, to four years; the act of firing the gun and concurrently possessing cocaine were considered significant aggravating factors. [ 19 ] R v Yeehung Chin , 2009 ABCA 226 [ Chin ], was an appeal of a five year sentence for possession of a loaded restricted handgun and possession of cocaine for the purpose of trafficking. The accused was young, employed and had a minor criminal record which included a Youth Court conviction involving a firearm.

He was on bail for a drug trafficking offence at the time of the offences for which he was sentenced. The Court of Appeal found “the moral culpability and the risk this crime presented to the community clearly warranted the five year sentence imposed...”: see para 15.

[ 20 ] The Ontario Court of Appeal also spoke of the dangers posed by the combination of drugs and guns in R v Wong , 2012 ONCA 767 , and noted that such a combination is a serious aggravating factor on sentencing. The accused initially received a global sentence of three years for a number of drug and firearms related offences. The Court found that he was involved in drug trafficking as a commercial enterprise. When his bedroom was searched, the police discovered drugs, currency, a set of scales and a sawed off shotgun.

Although the conviction for possessing a loaded restricted or prohibited weapon was overturned, the Court still found the global sentence of three years to be a fit sentence. Aggravating and Mitigating Factors [14] In the case at hand, I find the following aggravating and mitigating circumstances to be relevant: Mitigating Factors (

i) This accused has no prior criminal record; (ii) He was 22 years old at the time of the offence; (iii) Since these offences occurred, the accused has either been in school and/or employed and, by all accounts, has been living in a productive, law-abiding manner; and (iv) He has the support of his extended family as well as the community in which he lives. Aggravating Factors (

i) The firearm at issue was a loaded, semi-automatic handgun, a deadly weapon that easily can be concealed; (ii) Mr. Charles had that weapon readily accessible on a busy downtown street in the middle of a working day; (iii) He had no licence to possess that firearm and no legitimate reason to possess it or transport it in his vehicle; (iv) The nature of the weapon suggests that he came into possession of it by some criminal means; (

v) He had a significant amount of cocaine in his possession along with the gun; and (vi) There has been no expression of remorse by the accused. Analysis [15] In the case at hand, Mr. Charles does not have a criminal record, has the support of family and community and for the last six years, has led a productive, pro-social life. He is employed, he provides for, and is involved with, his child and provides assistance to his mother. He is active in his community. A number of glowing letters of support were filed with the Court detailing these activities.

[16] However, the offences of which Mr. Charles has been convicted are serious, as evidenced by the 10 year maximum penalty set by Parliament for possessing a loaded prohibited firearm. His moral culpability is high. He was in the downtown core of a city, in the middle of a working day with a loaded semi-automatic handgun close at hand. As indicated by the Alberta Court of Appeal in R v Chin , at para 10 : Mere possession of loaded firearms is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away... [17] Mr.

Charles had no legitimate reason to possess a handgun and was not licenced to do so. The fact that it was loaded, prima facie , suggests a willingness to use the firearm. Although there is no direct evidence before the Court as to when or how he came into possession of this weapon, the only reasonable inference is that he obtained it illegally. The fact that he possessed this firearm along with eight packages of cocaine, a highly addictive and destructive illegal substance, leads only to the conclusion that some of Mr. Charles’ activities were more nefarious than playing football. [18] Finally, Mr.

Charles entered a not guilty plea and stood on his absolute right to a trial. This is not an aggravating factor. However, at trial, he presented to the Court a fabricated version of events designed to divert responsibility from himself: see Charles para 41 . This demonstrates an absence of remorse and a lack of acceptance of responsibility that are aggravating: see R v Williams , 2011 ONSC 3914 at para 13 and R v Ishmael at para 19 . [19] On the other hand, the Court does recognize that for the last number of years, Mr.

Charles has demonstrated that his prospects for rehabilitation are real, as he has been living in a law-abiding manner. However, rehabilitation is not the primary consideration in assessing a fit sentence in relation to the offences before the Court: see Jarsch . [20] Based on the relatively few reported cases in Saskatchewan in relation to s. 95 of the Criminal Code , one thankfully can conclude that the issue of prohibited firearms may not be as large a problem here as it appears to be in other jurisdictions.

Nonetheless, the same dangers spoken of by the courts in other provinces arise whenever handguns are brought into a community. It is abundantly clear that in assessing a fit sentence, courts must give precedence to the principles of public safety, general and specific deterrence as well as denunciation.

It is also clear that significant custodial sentences are warranted even for first time offenders. [ 21 ] In this case, I find that the combination of cocaine and a loaded handgun in a public place to be very aggravating; this places the circumstances of this offence in the “true crime” category described by Doherty J.A. in Nur . When this is coupled with the lack of remorse demonstrated by the accused, the aggravating factors far outweigh the mitigating.

After considering the circumstances of the offences before the court, the circumstances of the accused, the purposes and principles of sentencing as well as the sentencing precedents to which I have referred, I conclude that the appropriate global sentence is three to three and one half years. [ 22 ] However, given the relative youth of this accused, his lack of a prior criminal record, and his rehabilitative efforts, it is my view that a sentence at the lower end of the range is appropriate.

Accordingly, the accused is sentenced to three years incarceration with respect to possessing a loaded prohibited firearm, three years concurrent for being the occupant of a motor vehicle in which there was a firearm and 18 months concurrent for possession of a controlled substance. Since the charges on which Mr. Charles was originally remanded were stayed by the Crown, Mr. Charles will be given credit for two months custody to be subtracted from sentence imposed today. As a result of this conclusion, there is no need to consider the constitutionality s. 92(2) (a)(

i) of the Criminal Code . [ 23 ] Further, there will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Charles from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for a period of ten years.

[24] Finally, there will be an order for the return and/or destruction of all exhibits at the expiration of the appeal period. _________________________ M.L.

Gray, J Appendix “A” CASES CONSIDERED R v Ball, 2014 BCCA 120; R v Chin, 2009 ABCA 226; R v Wong, 2012 ONCA 767; R v Neault, 2013 SKPC 174; R v Nur, 2013 ONCA 677; R v Sheck,, 2013 BCPC 105 , 2013 BCPC 0105; R v Adamo, 2013 MBQB 225; R v Vandyke, 2013 ABPC 347; R v Ferguson, 2008 SCC 6; R v Thompson, 2007 ONCJ 342; R v Jarsch, 2007 BCCA 189; R v Quang Nguyen, 2005 BCCA 115; R v McIntosh, 2010 ONSC 916; R v Williams, 2011 ONSC 3914; R v Hai Binh Nghiem, 2009 BCCA 170; R v Smickle, 2014 ONCA 49; R v Nuttley, 2013 ONCJ 727; R v Abdi Ishmael, 2014 ONCJ 136; R v Scarlett, 2013 ONSC 562; R v Curry, 2013 ONCA 420; and R v Peterkin, 2013 ONSC 2116.