Her Majesty the Queen - v. -, 2019 SKPC 69

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2019 SKPC 69 Date: November 25, 2019 Information: 991079016 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cameron Morin Appearing: Mr. Shawn Blackman For the Crown Mr. Dale Blenner-Hassett For the Accused SENTENCING DECISION F.M.

DAUNT , J [ 1 ] Cameron Morin entered a guilty plea to one charge of possession of an unloaded prohibited or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of an authorization or licence and registration certificate, contrary to section 95(1) (

a) of the Criminal Code . He also pled guilty to possession of a firearm while prohibited, contrary to

section 117.01(1). The Crown proceeded by indictment on both counts. Crown counsel submits Mr. Morin should receive a sentence of two years for possession of the firearm, and one year consecutive for possessing it while prohibited, less appropriate credit for pre-sentence custody. Crown also seeks a lifetime firearm prohibition and a DNA order, as well as forfeiture of the firearm and ammunition. Defence submits the appropriate global sentence is two years, less remand time.

CIRCUMSTANCES OF THE OFFENCE [ 2 ] On January 23, 2019, police received information that Mr. Morin was driving a certain SUV and that he was in possession of a firearm. At the time, he was subject to a firearms prohibition. Police observed Mr. Morin driving the SUV with a female passenger. He parked at the Ramada Hotel. He and his passenger walked into the hotel. Police found them in the bar, and arrested Mr. Morin for possession of a firearm. A search incidental to arrest revealed several rounds of .22 ammunition on his person. Police searched the vehicle and found a sawed-off .22 rifle in the back seat area.

CIRCUMSTANCES OF THE OFFENDER/ GLADUE FACTORS [ 3 ] Cameron Morin is 25 years old, born to a Metis father from Green Lake and a Cree mother from Flying Dust First Nation. His father worked steadily, but both parents abused drugs and alcohol, leading to domestic violence and child neglect. They separated when Cameron was eight years old. Neither could care for the children, so Cameron and his siblings lived with relatives on Flying Dust reserve for about two years. He has no current memory of his time there. Cameron then returned to Prince Albert, where he has lived ever since.

Although he thinks he is a registered member of Flying Dust First Nation, he presently has no substantial connection to that community. Cameron and his siblings are the first generation of this family to lose their Cree language. [ 4 ] When Cameron was 14 years old, the Youth Court put him on probation for several minor offences. In 2011, when Cameron was 16 or 17 years old, his mother died of a drug overdose, deeply affecting him. He started abusing drugs and alcohol, and did not complete high school.

Around this time, his father started down the path to sobriety. [ 5 ] When he was 17 years old, Cameron worked as a labourer for Titan Construction for a couple of months. He also worked at Superstore for three months. Those two jobs comprise his entire employment history. At the age of 18, his offending began to attract jail sentences. He received one day in jail for possession of a controlled substance. Shortly after, he received three months for obstructing a peace officer, with two months concurrent for assault causing bodily harm and several breaches. Eventually, Mr.

Morin did complete an employability skills program, which included a job placement. By then, however, he was fully entrenched in the drug subculture. Unable to find legitimate lucrative employment, he began selling drugs. In 2014, at the age of 20, Cameron was sent to the Prince Albert Penitentiary for two years for possession of a

Schedule 1 drug for the purpose of trafficking. Later that same year, he received 42 months for an aggravated assault involving a firearm. That offence was connected to his drug trafficking activity. His co-accused was murdered about one week after that incident. [ 6 ] Once at the Penitentiary, Cameron was quickly recruited into the Terror Squad, a regional Aboriginal gang. He believed he had to join a gang “to make his time at the penitentiary easier.” I take that to mean he felt he needed the protection of the gang while he was doing his time.

After the riot in December 2016, he was reclassified to maximum security. He was released in January 2018, but returned to custody two months later due to a failed drug screen. He remained in maximum security until his release. During his time in custody, he upgraded his education, achieving high school credits at grade 10 and 11 levels. He also actively participated in traditional spiritual practices. [ 7 ] Once back in the community, he tried to leave the gang. He says the gang does not allow this for someone who has been to the Penitentiary.

Some gang members also wanted to punish him for failing or refusing to smuggle drugs into the prison. Because he feared for his personal safety, he carried a sawed-off rifle and ammunition. During this time, his girlfriend became pregnant. [ 8 ] On January 23, 2019, police arrested Mr. Morin for his current offences. On February 1, the Court released him to the Electronic Monitoring program. Fearing retribution from the gang, he cut off his bracelet and went on the run. His girlfriend had her baby, but did not want him around their child because of his negative lifestyle.

At some point, members of the Terror Squad found him and essentially kidnapped him. They beat and tortured him. They cut off his index finger. When they left him alone to go and retrieve more torture instruments, he managed to escape. Besides the missing index finger, he received serious head injuries, resulting in ongoing cognitive issues, including memory loss. No one was charged for this brutal assault.

[ 9 ] To quote from the most thorough and helpful Pre-Sentence Report, at page 8: Cameron has experienced significant loss in his life, particularly with regard to the loss of his mother. He also witnessed a shooting occur in his home where his friend lost his life. Cameron reported he has lost several people in his life to either violence, suicide, or drug overdoses and continues to experience symptoms of Post Traumatic Stress Disorder (PTSD) with regard to being confined and tortured by members of his former gang, in the form of night terrors.

Cameron has witnessed, participated in and been a victim of incredible violence in his young life. [ 10 ] Mr. Morin was arrested on May 9 and has been in custody since. He would like a chance to parent his child. His girlfriend is willing to have him in her home as long as he is working on his sobriety, staying away from negative peers, and taking care of their son while she attends school. Her grandfather has offered to hire him on weekends as a labourer. Mr. Morin’s father, having given up drugs and alcohol, has also become a prosocial support for him.

The offender seems genuine in his desire to leave the gangster lifestyle and to be a good father to his son, although he will need significant community support. He needs to create a new peer group. He is willing to attend community programming such as NA, in order to meet sober, prosocial people. He says he no longer fears the people who tortured him, as they are now in custody facing serious charges, and are likely to receive lengthy prison terms. (They are presently in a separate unit at the Correctional Centre.) Mr. Morin is optimistic he will be able to stay out of the gang.

COMMUNITY SUPPORTS [ 11 ] In Prince Albert, there is currently no official community support specifically for someone trying to leave a gang. STR8 UP in Saskatoon is working on bringing an anti-gang program to Prince Albert. They hope to have something in place early in 2020, but have not yet secured funding. The process of removing gang ties and creating a new peer group can be long and difficult. Former gang members face unique challenges when trying to enter mainstream society.

Existing social support programs are not designed to address these particular issues. [ 12 ] The John Howard Society in Prince Albert currently offers a voluntary program, Nanatawihitowin Support Group, to connect urban, marginalized indigenous people to their cultural and spiritual roots. They hold weekly gatherings with elders from surrounding reserves. Given Mr. Morin’s interest in culturally relevant spiritual offerings in custody, he would greatly benefit from these gatherings. Sadly, the program ends in December, with no guarantee of future funding.

POSITIONS OF CROWN AND DEFENCE [ 13 ] Crown counsel submits that a global sentence of three years is necessary to satisfy the purposes and principles of sentencing, specifically denunciation and deterrence. Firearm offences have become more commonplace on Prince Albert criminal dockets in recent years, and the sentence needs to send a message that this will not be tolerated. Mr. Blackman relies on R v Nur [1] . Although that case struck down the mandatory minimum, the Court found three years to be a fit sentence for Mr.

Nur. [ 14 ] Defence counsel submits a global sentence of two years would be more appropriate, given the mitigating circumstances and Mr. Morin’s significant Gladue factors. He relies on R v Lee Charles, [2] an unreported decision of this court. In similar circumstances, Mr. Charles received 365 days for an offence contrary to s. 95. Mr. Charles had an arguably less- serious criminal record and was not subject to a firearms prohibition at the time. ANALYSIS [ 15 ] Fundamentally, a sentence must be proportionate to the gravity of the offence and the

degree of responsibility of the offender. Here, the

section 95 offence is a serious one, until recently attracting a minimum sentence of three years. I find, however, that Mr. Morin’s degree of responsibility was low, as explained in R v Gladue [3] and R v Ipeelee [4] . Gladue and Ipeelee require the court to take judicial notice of the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and higher levels of incarceration for Aboriginal peoples.

Section 718.2(

e) is not an automatic reduction for Aboriginal offenders ( R v Chanalquay [5] ). However, the offender’s unique journey from colonialism to court may diminish his moral blameworthiness, and thus directly affect proportionality ( Ipeelee ). [ 16 ] So what path led Cameron Morin to be before this Court? Because of colonialism, community disruption, racism, and residential schools, indigenous communities have long suffered from substance abuse and family and community breakdown. When the residential schools took their children, sometimes by force, parents despaired.

The children who went to these schools often suffered abuse and did not learn how to create a loving family for themselves. For over 160 years, residential schools broke the intergenerational chain of parenting, devastating indigenous communities. By the time Cameron Morin was born in 1994, it is not surprising that his parents created a home full of substance abuse and domestic violence, a home soon broken by separation and a parent’s death. Because of his horrendous childhood and his mother’s death, Mr. Morin did not finish high school.

Because of his lack of education, his only employment options were temporary, part-time, and for low pay. Because of his limited options, he turned to the black market to make money. Because of that choice, he received a lengthy penitentiary sentence. Because he received a penitentiary sentence at such a young age, he joined a gang to protect himself from more seasoned inmates. Because of his gang involvement, he feared violent retribution if he tried to leave. Because of this fear, he armed himself against that very real possibility. And here we are. [ 17 ] That is Mr. Morin’s past.

Looking toward the future, within the limits of proportionality, a sentence should: (

a) denounce unlawful conduct; (

b) deter the offender and others from committing offences; (

c) separate offenders from society, where necessary; (

d) rehabilitate offenders; (

e) provide reparations for harm done; and (

f) promote a sense of responsibility in offenders, and acknowledgement of the harm done. A sentence should be increased or reduced to reflect aggravating or mitigating circumstances. The Court must also take into consideration the principles of parity, totality, and restraint. Gladue mandates that the court craft a sentence that is proportionate, and one that responds to the unique needs of this particular Aboriginal offender. [ 18 ] Apart from his criminal record, the only aggravating circumstance here is that Mr. Morin was subject to a firearms prohibition at the time of the offence.

However, he was charged separately for that violation. The aggravating circumstance is also a separate offence which attracts its own penalty. [ 19 ] In mitigation, he cooperated with the police when they arrested him and entered guilty pleas to the charges. He did not use the weapon or threaten anyone with it. I find his purpose was defensive, not aggressive. The ammunition was on his person, while the weapon was in the back seat of the vehicle. The gun was not loaded. Mr.

Morin was genuinely and justifiably afraid for his personal safety because he was leaving the gang and because he failed to smuggle drugs into an institution. There was no lawful place for him to turn. The police were not about to provide him a bodyguard. There was no “Gang- Leaver Protection Program.” Mr. Morin’s fears came true when the gang exacted revenge upon him for his transgressions, leaving him maimed and permanently damaged. [ 20 ] For this particular offence, some incarceration is necessary to denounce the unlawful conduct.

The sentence cannot encourage anybody to carry a prohibited or restricted weapon for protection or for any other reason. A jail sentence is necessary to send this message. However, the length of the sentence need not be so long as to discourage Mr. Morin’s efforts in leaving the gang. Returning him to the penitentiary would increase, rather than decrease the likelihood that Mr. Morin would commit further offences. It is necessary to separate Mr. Morin from society for a time, to allow him to arrange his release plan and to set up supports in the community for his rehabilitation.

Three years is too long and would be counterproductive. [ 21 ] As for deterrence, there is no doubt that the presence of sawed-off shotguns and rifles in this community threatens public safety. Yet lengthy sentences from this court seem not to have deterred people from possessing them. Rather, they seem more common than ever. I find a lengthy sentence would not deter Mr. Morin or others from committing this kind of offence.

[ 22 ] For the offence contrary to

section 95, I find that a proportionate sentence, the sentence most likely to achieve the objectives of sentencing, is 18 months in custody, followed by 18 months on probation. Although Mr. Morin has never successfully completed a probation order, this probationary period should help provide community support for his efforts to leave the gang, and facilitate treatment for addiction. Applying the Kienapple principle, and the totality principle, the sentence for the s. 117.01(1) offence is 12 months concurrent. [ 23 ] To account properly for his remand time, I shall render the sentence in days, rather than months.

Mr. Morin has spent 211 days in custody. I give him enhanced credit of 317 days. The sentence is as follows: Count 6: 543 days less 317 days credit = 226 days. Count 8: 365 days less 317 days credit = 48 days concurrent. That is to be followed by 18 months’ probation with the following terms: 1. Keep the peace and be of good behaviour. 2. Appear before the court when required to do so by the court. 3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation. 4.

Report to a probation officer within two working days of your release from custody and after that as told to do so by your probation officer or designate. 5. Participate in an assessment and complete programming for addictions, which may include in-patient treatment, as told to do so by your probation officer. 6. Seek and maintain employment or educational programming as told to do so by your probation officer. 7. Participate in an anti-gang program, if it becomes available in the community of Prince Albert. 8.

Work with your probation officer to find a Cree elder or a culturally appropriate community support or traditional spirituality group. [ 24 ] Crown counsel applies for several ancillary orders. A firearm prohibition is mandatory for an offence contrary to s. 95(1)(a). Because of his prior offences, Mr. Morin is subject to a lifetime ban. Pursuant to s. 109, then, on Count 6 Mr. Morin is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. Forfeiture of the sawed-off rifle and the ammunition are also mandatory.

Pursuant to s. 491, the firearm and ammunition seized on January 23, 2019 are forfeited to Her Majesty to be disposed of as the Attorney General directs. [ 25 ] Crown counsel applies for a DNA warrant. Both s. 95(1)(

a) and s. 117.01(1) are secondary designated offences. Mr. Morin’s DNA is already on the known offender database. I see no reason to make a further DNA order at this time.

___________________________ F.M. Daunt, J