R. v. Krywonizka, 2021 MBPC 49

CITATION: R. v. Krywonizka, 2021 MBPC 49 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) M. Desautels ) ) for the Crown - and – ) ) ) KRYWONIZKA, Andrew ) ) R. Wolson and D. Wolson for the Accused ) ) ) Judgment delivered: October 14, 2021 ) HARVIE, P.J. INTRODUCTION [ 1 ] Sometimes good people do bad things. Sometimes a person who is an otherwise honest, kind, pro-social, law abiding citizen engages in conduct which results in criminal charges. The individual may not have started out with the intention to break the law but that doesn’t necessarily make their offending behaviour any less serious.

However, it can make the sentencing process a challenge. [ 2 ] That is what has occurred in this case. What began as a passionate interest in studying and acquiring firearms morphed into criminal conduct including the possession of prohibited firearms, the unsafe storage of weapons and ammunition, and the unlawful importing of firearms-related paraphernalia. This offender has entered guilty pleas to six counts of firearms-related offences from July 2019 and October 2019.

As in all sentencing hearings, the criminal acts committed must be balanced against the circumstances of the offender, while weighing and applying the Criminal Code sentencing provisions.

Given the particular nature of these charges, both counsel have invited the Court to consider where these type of offences fall within the so-called “spectrum” of firearms-related sentences. [ 3 ] Crown counsel seeks a global disposition of six years imprisonment, arguing that the number of weapons seized, the readily available ammunition, their prohibited or restricted nature and the fact that some firearms were found loaded necessitates a sentence that emphasizes the principles of denunciation and deterrence.

While he does not accept that there is a nexus between the diagnosis and the accused’s offending behaviour, he does accept that the accused is an individual with a somewhat reduced level of moral blameworthiness. He nonetheless argues that a significant sentence is mandated. [ 4 ] Defence counsel concedes that a prison term is warranted but asks that it be of a length that would allow the offender to serve the sentence conditionally in the community.

He points to the background of the offender, the letters of support confirming his otherwise law abiding nature and the medical information tendered, which include the opinion that the offender is a low risk to reoffend. [ 5 ] I am aware that these proceedings have been extremely stressful for the accused and his family and, through no one’s fault, have taken a lengthy period of time to reach this conclusion.

I will therefore indicate at the outset that after giving careful consideration to the lengthy and very helpful submissions of both Crown and defence counsel, the materials filed by both parties, and the relevant caselaw, I have concluded that an effective sentence of two years less a day to be served conditionally in the community is an appropriate disposition. The following are my reasons for reaching that conclusion. THE CRIMINAL CHARGES [ 6 ] As previously indicated, the accused has entered guilty pleas to six offences.

Although many more were laid, Crown counsel combined a number of the offences under single counts in the Information. There is no issue, however, that the six counts encompass all of the facts arising from the police investigation. [ 7 ] The charges are summarized as follows: • On July 30, 2019, one count of importing into Canada a prohibited device, to wit a sound suppressor for a firearm contrary to Criminal Code s.104(1) (a);

• On October 16, 2019, did possess loaded prohibited firearms without authorization or licence contrary to Criminal Code s. 95 ; • On October 16, 2019, did possess restricted firearms with readily accessible ammunition without authorization or licence contrary to Criminal Code s. 95 ; • On October 16, 2019, did possess prohibited firearms with readily accessible ammunition without authorization or licence contrary to Criminal Code s. 95 ; • On October 16, 2019, did store non-restricted firearms unsafely contrary to Criminal Code s. 86(2) ; • On October 16, 2019, did possess prohibited devices being high capacity magazines and sound suppressors without a Certificate of Registration contrary to Criminal Code s. 92 . [ 8 ] Crown counsel proceeded by indictment, and although he seeks a lengthy penitentiary sentence, he concedes that these offences are eligible for a Conditional Sentence if the accused can meet the statutory prerequisites. [ 9 ] The offender appeared in Provincial Court and entered guilty pleas on February 16, 2021.

I am told that most of the delay in this case relates to the extensive disclosure, the discussions between counsel, and the impact of the COVID-19 pandemic on the availability of court dates. Although the offender did not set this matter for trial or indicate any meaningful desire to contest these charges, it is also conceded that a trial in this matter would have taken a considerable number of court days. Therefore, I consider his guilty plea to be timely. [ 10 ] Both counsel filed a signficiant amount of material with the Court.

Along with an Agreed Statement of Facts, Crown counsel provided a number of photographic exhibits, a very helpful chart identifying the location of the weapons seized, their legal designation and whether they were loaded. The Crown also provided information about the other weapons-related paraphernalia seized from the accused’s residence. Casebooks were filed by both counsel. Defence counsel provided the Court with a booklet of materials including the following: 1) Medical report of Dr. Jeffrey Waldman, Forensic Psychiatrist, dated October 26, 2020; 2) Medical report of Dr.

Lawrence Ellerby dated August 15, 2021; 3) Report of Michael Quiring, counsellor, dated June 3, 2021; and 4) Multiple letters of reference. THE FACTS [ 11 ] The offender came to the attention of the Winnipeg Police Service (“WPS”) when the Canadian Border Service Agency (“CBSA”) intercepted a package containing a sound suppressor for a weapon. Although the package was ordered by the offender and sent to his address, the item had been ordered under an alias. An investigation revealed that the offender had previously attempted to import illegal weapons-related items and had been issued a warning.

Based on information obtained during their investigation, WPS members obtained a “Public Safety Warrant” under Criminal Code s. 117 for the offender’s residence. Once inside the residence, it became clear that they were entering into a criminal investigation. As a result, a Criminal Code search warrant was obtained and executed. [ 12 ] At all relevant times, the offender was in possession of a valid Possession and Acquisition Licence (“PAL”) under the Firearms Act allowing him to purchase and possess restricted and non-restricted weapons.

He was also allowed to possess some prohibited weapons pursuant to the “grandparental clause” in the legislation. The accused was not allowed to possess prohibited weapons outside those specific circumstances. [ 13 ] During the execution of the search warrant, WPS members seized a total of 79 firearms. Although a significant number of those firearms were long barrel non-restricted firearms which the offender was entitled to possess, it was found that those firearms were not properly stored.

Police also located a number of non-restricted firearms with no serial numbers or weapons that otherwise were classified as prohibited. They also located a number of prohibited firearms which the accused possessed outside the parameters of his PAL and the grandparental clause. [ 14 ] WPS also located an enormous amount of ammunition, some in the vicinity of and readily accessible to the correlating firearms.

Also located were an ample amount of firearms-related items which were detailed by Crown counsel including gun cases, clothing and firearms-related paraphernalia. [ 15 ] The manner of storage of all of the firearms and ammunition is very troubling. Of significant concern are three prohibited firearms, being two handguns and one Browning model Type D 30.06 calibre machine gun which were found loaded and not properly secured or stored. Police also located several sound suppressors and high capacity magazines, both of which are classified as prohibited devices.

SENTENCING OBJECTIVES- FIREARMS OFFENCES [ 16 ] Both counsel provided helpful casebooks supporting their respective positions. The theme underlying all of the cases is the danger that firearms can present in our society. As it relates to the offences before the Court, that danger is amplified when firearms are not properly stored, and/or are stored loaded or with ammunition readily accessible. Parliament expressed its concern regarding firearms-related offences by incorporating a mandatory minimum sentence in Criminal Code s. 95 . Although the Supreme Court of

Canada has struck down the mandatory minimum sentence provisions, the Court nonetheless clearly confirmed the serious nature ofthese types of offences. The Court also confirmed, as do the cases which have followed, that the sentencing principles of denunciationand deterrence are paramount in a sentencing involving firearms-related offences. [17] In R. v. Nur, 2015 SCC 15, writing for the majority in the context of addressing the three year mandatory minimum sentencewhich was then in the legislation, McLachlin CJC recognized a range or “spectrum” of firearms-related offending behaviour.

In the nowoften quoted passage, she noted (at para 82): Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three yearsor more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw whocarries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in trulycriminal conduct and poses a real and immediate danger to the public”: para. 51.

At this end of the range — indeed for the vast majorityof offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is lessserious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far endof the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes amistake as to where it can be stored.

For this offender, a three-year sentence is grossly disproportionate to the sentence the conductwould otherwise merit under the sentencing provisions of the Criminal Code. [18] Both counsel have invited the Court to consider where the facts of this case fall within the range discussed in Nur, and to thatend both counsel reviewed the facts in Nur (and in other cases). Although the sentencing principles identified by the Court must beapplied, the underlying facts in Nur are considerably different.

Nur was a nineteen year old high school student who was part of a grouphanging around the outside of a community center in an area of Toronto where crime and gun violence were serious problems. Whenpolice attended at the request of community centre staff, the group scattered and police gave chase. As the accused was being pursued bythe police, he threw a loaded handgun under a vehicle. The handgun was recovered and was found to be a working 22-calibre semi-automatic with an oversized clip capable of firing twenty four rounds in 3.5 seconds.

The gun was a prohibited firearm, and Nur wascharged accordingly. [19] Even prior to Nur, the importance of denunciation and deterrence as sentencing principles was well recognized by the Courts.In R. v. Kift, 2014 ONCJ 625, the accused, a former RCMP officer, was convicted after a nineteen day trial of numerous firearms-relatedoffences committed while he was on parole for gun trafficking offences and while on a Prohibition Order. The accused had received afive year sentence for earlier weapons offences.

In sentencing him for his re-involvement, the Court expressed concern about “hisdefiance of court orders, parole conditions and a Weapons Prohibition” calling his conduct (at para 55): deliberate and longstanding and dangerous. He has remained undeterred and ungovernable even after receiving a five year sentence as aformer Police Officer who was subject to all of the protective custody restrictions that create an even harsher penile environment. Mr.Kift was given the opportunity to rehabilitate himself. He was offered programs while in custody and turned them down.

He lied to hisCase Worker and his Parole Officers, just as he has lied Dr. Gojer, the author of the Pre-Sentence Report ordered by this Court. He wasnot rehabilitated during his previous sentence and parole. The sentencing judge ultimately concluded that a lengthy penitentiary term “was necessary to protect the public” imposing a globalsentence of eight years less pre-trial custody. [20] R. v. Kennedy, 2016 MBCA 5 is somewhat factually closer to the circumstances in this case.

The accused had a number offirearms that were prohibited or restricted, six of which were loaded and two of which were actually concealed on his person. During asearch of the accused, officers found two handguns in his pants pocket, with the cocking mechanisms of the guns pulled back in the“ready to fire position”. The handguns were described as being “very old” and testing confirmed that they were functional, although onefired intermittently. One of the prohibited weapons located in the headboard of a bed was an Armalite military style rifle with twohundred rounds of ammunition found close by.

The 54 year old accused was sentenced after trial just shortly before the release of thedecision in Nur. [21] On appeal, the Court overturned stays of proceedings entered by the trial judge on certain counts pursuant to the Kineappleprinciple, and sentenced the accused on all counts to a total of three years, rejecting, by operation of law, the accused’s request for aConditional Sentence. The Court expressed concern over the trial judge’s characterization that the accused was a “collector”.

The Courtfound it further aggravating that the accused previously had firearms stolen during a break-in to the house trailer where he lived.Significantly, the Appellate Court found that the trial judge had effectively “rendered inapplicable” the principle that denunciation anddeterrence are paramount in a sentencing of this nature. [22] Similarly, in R. v. Zayak, January 22, 2015, Keyser J, sentenced the accused to two years less credit for time in custody wheredeterrence was a primary sentencing principle.

The accused entered guilty pleas to three counts, being failure to report the loss of arevolver and a rifle, possession of a prohibited weapon (a Zip gun) with readily accessible ammunition, as well as some prohibiteddevices and improper storage of sixteen firearms including a loaded handgun found under his kitchen sink. The accused had a previouscriminal record, although dated, and was given a suspended sentence for possession of a prohibited weapon being two Zip guns andpossession of explosives. In determining the appropriate sentence, the Court noted “both psychological reports show Mr.

Zayak to be awell adjusted, mature individual who has a good work history and no incidents of violence on his record. He does not present with amajor mental illness.” In concluding that a Conditional Sentence was not appropriate, the Court expressed concern about the safety ofthe community, noting that “Mr. Zayak does not seem to care about the regulations that exist to make gun ownership safe.” [23] However, it is also well recognized that denunciation and deterrence can, in the appropriate circumstances, be addressed by theimposition of a Conditional Sentence. In R. v.

Haus, 2016 BCPC 11 , 2016 BCPC 0011, the accused entered guilty pleas to anumber of firearms offences after police located numerous firearms and “an enormous quantity of ammunition” throughout the accused’shouse and garage. Some weapons had defaced serial numbers. The illegal firearms included an AK-47 rifle found loaded and containingwell over the legal limit of five rounds. A significant number of other weapons were located throughout the house and in the garage. After reviewing numerous authorities from across the country, the Court rejected Crown counsel’s request for a custodial sentence of

eighteen to twenty-four months and rejected the argument that denunciation and deterrence could not be met by a Conditional Sentence.The Court accepted, as did the Crown, that the accused was a sympathetic offender and made the observation “that his case isexceptional”, although without specifically addressing the legal concept of exceptional circumstances. [24] Defence counsel provided other cases where a conditional sentence was deemed an appropriate disposition.

While each caseturns on its own facts, the underlying principle is that despite the seriousness of the offences, denunciation and deterrence could beadequately addressed by such a disposition. [25] Since the decision of the Supreme Court of Canada in R. v. Proulx 2000 SCC 5 , [2000] 1 SCR 61 Courts haverecognized that a Conditional Sentence can address multiple Criminal Code sentencing objectives. In Proulx the Court noted (at para22): The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served inthe community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparationsto the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanctioncapable of achieving the objectives of denunciation and deterrence. SENTENCING OBJECTIVES- MEDICAL EVIDENCE AND MORAL BLAMEWORTHINESS [26] As noted earlier, the materials filed by defence counsel include several medical and counselling reports outlining the diagnosisand treatment the accused has received since his arrest.

Given that the accused has been diagnosed with Autism Spectrum Disorder(ASD) and that counsel argues that there is a link between the diagnosis and the offending behaviour, it seems appropriate that thematerials be assessed through the framework set out by the Manitoba Court of Appeal in R. v. JMO 2017 MBCA 59, where Mainella JAstated (at para 73): It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD,sentencing judges keep separate and properly assess the following questions: 1.

Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2. Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made asto the relationship, if any, between those circumstances and the criminal conduct? 3. Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence takinginto account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct.

THE BACKGROUND OF THE ACCUSED [27] The offender is forty-three years old, single with no children. He has no criminal record. He has been gainfully employed for anumber of years at various jobs. Most significantly, since 1996 he has worked as a pyro technician and has been a consultant toArchangel Fireworks, creating many of their fireworks displays. He is trained to work for CN Rail, but is presently laid off due to lack ofseniority. Given the nature of these offences it is unlikely he will be able to work there in the future. [28] The medical reports prepared by Dr. Jeffrey Waldman and Dr.

Lawrence Ellerby confirm that after his arrest on these offences,the offender was diagnosed with Autism Spectrum Disorder (ASD). This diagnosis helps to explain many of the early difficulties theaccused encountered throughout grade school and high school. The reports describe an individual who had difficulty formingrelationships with other students, was often bullied and although very intelligent often struggled academically.

Challenges related togeneral social and interpersonal relationships have been present throughout his life, leading to a sense of vulnerability and lack ofcompetency, despite having a number of noteworthy and positive achievements. This, in turn, has lead to the offender turning inward andgaining a sense of comfort from his various collections. Of note, no concerns were expressed related to issues of anger management. Thereports also describe his extreme emotional attachment to animals including his present pet, a rabbit named Bunz which he refers to ashis “son”. [29] Dr.

Waldman’s report describes the offender as someone who becomes “pre-occupied” with learning about his interests andcollecting items related to his interests. This preoccupation is exemplified by the nature and number of collections that the accusedmaintains, which include the following: a street sign and safety equipment collection on display in his backyard; emergency vehiclelighting; smiley face items; a Lego collection; rare books and specialty publications; a model train collection; and a high end brass traincollection.

Included in his collections were the firearms and weapons-related paraphernalia which were seized by the police. Dr.Waldman described the offender as collecting these items “in a compulsive fashion and does so to manage anxiety”. The doctorconcluded that his “pattern of life long social skilled deficits and fixated, restricted interests meets the diagnosis criteria for mild AutismSpectrum Disorder”, linking the diagnosis to the offences, stating that “it is the fixed and focused interest, which is the symptom of hisillness, that contributed to his arrest.” [30] Dr.

Waldman noted that ASD is poorly understood and underdiagnosed, leading to frequent contact with the criminal justicesystem and frequent incarceration for behaviours and interests that are associated with the disorder when those interests do not conformto social norms. He therefore did not find it surprising that the offender had not been previously diagnosed. However, from a publicsafety perspective, it is significant that Dr.

Waldman described the offender as being “an extremely low risk to become reinvolved in thecriminal justice system in the future,” noting that he has no mental health illness, substance use disorder or personality disorder, that hehas maintained long term employment and that he has no known history of violence. He also noted that the offender exhibited remorseand guilt about the offences and remained focused on the future and focusing his interests on other topics such as his train collection. [31] Dr. Lawrence Ellerby reached similar conclusions about the offender.

He opined that the current charges “related to hisextensive collection of firearms and firearm accessories (which) is best understood within the context of his diagnosis of ASD, as well ashis developmental experiences in contrast to this behavior being motivated by anti-social functioning and criminal intent.” Dr. Ellerby

noted that “over the course of treatment significant attention” was given to the offender’s history of collecting “and specifically to his collecting of firearms and firearm related goods”. He expressed the view that the offender “has developed a comprehension understanding of his collecting behaviours generally and his firearm collecting specifically.” He noted that “collecting has been a primary means of coping” for the offender throughout his life as this behaviour served “as a form of self-protection and a means of attempting to compensate for his vulnerabilities and meet emotional needs.” [ 32 ] Dr.

Ellerby also concluded that the offender’s risk to be “very low” and “consistent with a level one offender.” He expressed the view that the offender is “an excellent candidate for a community disposition”, noting that he: has done extraordinarily well in treatment. He has actively engaged in the therapeutic process in an open and serious minded way; committed a high level of attention to his self examination and personal growth; and made significant gains in the understanding of his personal history, ASD and the needs met by his collecting.

He has made important gains in identifying, developing and practicing implementing healthy coping skills and responses to meet his emotional needs in more direct and helpful ways; has focused on how to continue his enjoyment of collecting in a healthier and more balanced way, shifting it to a hobby versus a means of coping; he has learned a great deal about ASD and the way it impacts his functioning; and is working to monitor and manage the associated symptoms and challenges of ASD (e.g. diverted his intense focus, closely attending to enhancing his social and interpersonal communications style).

The doctor also expressed significant concerns about the impact of a federal sentence on the health and wellness of the accused. [ 33 ] The offender has also been receiving counselling from Michal Quiring, who provided a report confirming that he has attended for fourteen therapy sessions. Mr. Quiring’s report comments on the positive steps the offender has taken to better understand his ASD diagnosis and to apply lessons learned from his therapeutic sessions.

He, too, was of the view that the offender is “an excellent candidate” for ongoing professional help. [ 34 ] Having reviewed the materials filed, I am satisfied that there is a nexus between the diagnosis and his offending behaviour, and that the diagnosis helps to frame what was an almost compulsive desire to collect firearms-related items. I am mindful as well that the diagnosis also helps to understand the somewhat disorganized and in any event substandard method of storing the firearms and the ammunition found in the offender’s residence.

I am satisfied from the medical information provided that the moral blameworthiness of the offender is reduced by his ASD diagnosis and helps to understand the role ASD has played in the offender’s firearms collecting and improper storage. AGGRAVATING AND MITIGATING FACTORS [ 35 ] There is no doubt that the principles of denunciation and deterrence play a central role in the sentencing of an offender for offences of this nature. The sheer number of firearms, the improper storage of many of the items and the immediate availability of ammunition are all very serious and very aggravating factors.

Many of the long barrel weapons were located in a basement “gun room” behind a regular interior door that was locked but poorly secured. The door was easily forced open by police when they executed the search warrant. [ 36 ] Being in possession of loaded firearms which are not properly stored is totally inappropriate, illegal and highly risky behaviour. It is seriously aggravating that the loaded firearms were found in his bedroom night table drawer. [ 37 ] Further aggravating is the fact that the offender had been previously warned when he attempted to import a prohibited device.

Despite this, he attempted to import a sound suppressor and was found in possession of other firearms and items that cannot be legally purchased in Canada. [ 38 ] When assessing the spectrum of offending behaviour respecting these types of charges, I am satisfied that the offender was not an “outlaw” described by McLachlin CJC in Nur “who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . ” However, I am also satisfied that his actions went far beyond that of a “licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. ” The actions of this offender fall into the mid range of the so-called “spectrum” of offending .

In the absence of mitigating factors, a sentence of three years or longer could easily be justified. [ 39 ] But there are mitigating factors which must be weighed. As noted, the offender has no criminal record, and in fact has led a very pro-social, pro-law enforcement lifestyle. His father is a retired Winnipeg Police Service officer, and it is a sad and disturbing fact that two of the prohibited handguns found in the offender’s residence were registered to his father. I do recognize, however, the nature of the relationship between the two, including the fact that they lived next door to each other.

I am also aware that the offender had an extensive alarm and camera system which monitored both the perimeter of his residence and the basement gun room, and that his father had access to the alarm system and could assist in the event of a break-in. Although this fell short of the legal requirements, the offender did take some steps to ensure the safety of his collection. [ 40 ] The offender has been gainfully employed throughout his adult life. He is clearly very highly thought of by his neighbors and other acquaintances, some of whom he met through firearms-related activities.

The many letters of reference speak of him as a kind, hardworking, passionate and supportive individual. [ 41 ] He has entered guilty pleas, and has expressed his remorse to the Court. I am satisfied that his comments were sincere. [ 42 ] The most significant mitigating factors which tempers the moral blameworthiness of the accused is his ASD diagnosis. As indicated, I am satisfied that there is a nexus between the diagnosis and his offending behaviour.

I am satisfied, and indeed Crown counsel conceded (although for different reasons) that the accused has a reduced level of moral blameworthiness. [ 43 ] I am also satisfied that the accused has taken very meaningful steps to address the challenges presented by his ASD diagnosis, that he now has a better understanding of the reasons behind his compulsive collecting behaviours, and that he is well positioned to

move forward from these charges in a pro-social manner. Both Dr. Waldman and Dr. Ellerby have assessed the accused to be a low risk to reoffend. [ 44 ] Finally, although not a mitigating factor, I am advised that at the conclusion of the proceedings, many of the firearms will either be disposed of or sold at auction, resulting in a signficiant financial loss for the accused. However, it is important to remember that some of the losses are related to items he should not have had in the first place.

CONCLUSION [ 45 ] When considering where the imposition of a Conditional Sentence is appropriate, the Court must assess the statutory requirements set out in Criminal Code s.742.1 : 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if (

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; [ 46 ] Having assessed the totality of the circumstance of this case, I am satisfied that the ends of justice can best be met by the imposition of a Conditional Sentence. I am aware that the accused has been on judicial interim release without incident for approximately two years pending the resolution of this matter.

I am also mindful of the conclusion that the accused is a low risk to reoffend and that he is seeking and will continue to seek professional assistance to help better understand and live with his ASD diagnosis. I am therefore satisfied that the imposition of a Conditional Sentence would not endanger the community. [ 47 ] While denunciation and deterrence are paramount in offences of this nature, consideration must be given to the sentencing principles of rehabilitation and proportionality.

I am satisfied that a sentence of less than two years is consistent with the purpose and principles of sentencing set out in the Criminal Code . [ 48 ] TERMS OF THE CONDITIONAL SENTENCE [ 49 ] The accused is therefore sentenced to a period of incarceration of two years less a day, concurrent on each count, but will be allowed to serve that sentence conditionally in the community on the following conditions: • The statutory conditions including keep the peace and be of good behaviour; • Report to his Conditional Sentence supervisor within 24 hours of his appearance in Court and thereafter as directed to do so; • Attend, participate and complete any assessments, counselling or programming as directed to do so by his Conditional Sentence supervisor.

The accused must provide copies of the reports filed in this sentencing to assist his supervisor in directing his course of treatment; • Complete 200 hours of community service work as directed to do so by your Conditional Sentence supervisor and to be completed within the first 18 months of this order; • Not to possess or drink any alcohol; not to possess or use any illegal drugs; not to use any prescription drugs unless you have a prescription for that drug; • Reside at 7 Almond Bay, Winnipeg Manitoba; • You shall be the subject of a curfew as follows (subject to the exceptions as set out below): o For the first 8 months of the sentence- an absolute curfew, which means you must be at your home address (your home includes your house and your yard) 24 hours a day, 7 days a week; o For the second 8 months of your sentence, a curfew of 10 p.m. to 6 a.m. daily; o For the final 8 months of your sentence, a curfew of midnight to 6 a.m. daily; ▪ Exceptions to the curfew for the entire sentence are as follows: • Any medical emergencies involving yourself or your immediately family, in which case your absence must be reported to your supervisor within 24 hours; • To attend to any medical or dental appointments as approved in advance by your Conditional Sentence supervisor; • For attending to any previously scheduled meetings with your Conditional Sentence supervisor; • To attend to any counselling or programming appointments as approved in advance by your Conditional Sentence supervisor; • To attend to complete your community service work, as approved in advance by your Conditional Sentence supervisor; • To attend directly to your place of employment or education, and to return directly home, pursuant to a

schedule approved in advance by your Conditional Sentence supervisor. Your

schedule is to be provided in advance to your supervisor;

• One 6 hour period or two 3 hour periods to attend to your personal affairs as approved in advance by your Conditional Sentence supervisor; • To attend to his father’s residence at 5 Almond Bay, Winnipeg, Manitoba to assist in his medical care as approved in advance by his Conditional Sentence supervisor; • Any other exceptional events that cannot be anticipated at this time as approved in advance by your Conditional Sentence supervisor. o You must come to the door or answer the phone in compliance with any curfew checks conducted by your Conditional Sentence supervisor or Winnipeg Police Service or their designates.

COLLATERAL ORDERS [ 50 ] Firearms offences normally attract a weapons prohibition pursuant to Criminal Code s. 109 . However, defence counsel seeks an exemption for the accused pursuant to Criminal Code s. 113 in respect to explosives only. Lifting of prohibition order for sustenance or employment 113

(1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that (

a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or (

b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person, the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a license or a registration certificate, as the case may be, to the person for sustenance or employment purposes [ 51 ] Crown counsel very fairly concedes that the Court has the jurisdiction to grant an exemption, but opposes the exemption.

He points to the serious nature of the offences and the vast number of weapons and ammunition located at the accused’s residence. He expresses concern about the failure of the accused to follow the rules respecting storage of his firearms and he questions whether a prohibition order would actually have the effect of being a virtual prohibition against employment. [ 52 ] Applications of this nature must be considered contextually, realistically and on the balance of probabilities. In R. v.

Hakongak , 2014 ONCJ 557 , Paciocco J. (as he was then) considered an application of this nature for an accused who, post-sentencing, had been laid off from his full-time employment and wished to expand his part-time hunting and guiding business and therefore required the use of a firearm. While the accused had previously held jobs that did not require access to firearms, the Court accepted that (at para 6) Section 113(1) (

b) of the Criminal Code does impose a narrow, circumscribed and necessity-based exception. It cannot be interpreted, however, to require that an accused person who depends on the possession of firearms to obtain assured employment must remain unemployed in the hope and expectation that a different line of work might become available to him. The purpose of the exemption is to avoid situations where a mandatory prohibition would unfairly undermine the ability of an individual to provide for themselves or their family. There is nothing in section 113(1) (

b) that requires this necessity requirement to be permanent. [ 53 ] The accused has operated his own company, Gryphon Energetics, for many years. As noted earlier, he also works with Archangel Fireworks as their “lead shooter” setting up complex fireworks displays. I am advised that he has toured with Disney On Ice production team, and has assisted in setting up displays at local concerts such as Carrie Underwood and Kiss, to name a few. He has worked in Manitoba, Ontario, Saskatchewan and Quebec.

Counsel argues that unless the accused is granted an exemption to apply for a licence, the prohibition order will act as a “virtual prohibition against employment”. [ 54 ] I am mindful of the facts already referenced during the sentencing submissions. All are relevant and it is not my intention to review them in their entirety.

Although the offences are extremely serious and have attracted a custodial sentence, albeit one that the accused can serve in the community, I am also mindful of the fact that this accused has no criminal record, that there is no suggestion that he has any violent tendencies and that he is in therapy to address his ASD diagnosis. As to whether a weapons prohibition would act as an effective barrier to employment, I am mindful that the accused now has a signficiant criminal record, which may impact his ability to obtain employment in areas other than the one in which he has been working for approximately 25 years.

I am satisfied that a weapons prohibition as it relates to explosives only would have the effect of barring him from continuing in his present line of employment.

I am also mindful that the exemption will simply allow him to apply to the appropriate licencing body to seek authorization to work with explosives. [ 55 ] I therefore order that the accused be subject to a weapons prohibition pursuant to Criminal Code s. 109 , with an exemption granted pursuant to s. 113 as follows: the accused may possess explosives or explosive substances only for the purpose of employment or while engaged in activities directly related to the use of explosives at an appropriately licenced premise and not at his private residence.

This exception is subject to the approval of the compliance authorities and related only to the employment of the accused through Gryphon Energetics or Archangel Fireworks. [ 56 ] There will be an order of forfeiture of the items seized, subject to the agreement between the parties as to which items will be sold with the proceeds returned to the accused.

[ 57 ] Costs and surcharge are waived. [ 58 ] I am not requiring the offender to provide as sample suitable for DNA analysis. “Original signed by” Harvie, P.J.