R. v. A.J.A. and J.A.F. Date:, 2018 BCPC 50

Citation: R. v. A.J.A. and J.A.F. Date: 20180112 2018 BCPC 50 File Nos: 212803-1; 212811-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. A.J.A. and J.A.F. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. GARDNER Counsel for the Crown: A. Willms; S. Wager Counsel for the Defendant A.J.A. : M. Swartz Counsel for the Defendant J.A.F. : B. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: Sept. 1, 2017; Oct. 6, 2017; Nov. 10, 2017; Dec. 8, 2017

Date of Judgment: January 12, 2018 [ 1 ] In this matter, the Crown seeks a global sentence of nine years’ jail for both accused, less time served. This sentence takes into account the sentencing principles of proportionality and totality, and with respect to J.A.F., it also takes into account the Gladue principles.

In addition, the Crown submits that there be an order pursuant to s. 109 of the Criminal Code that A.J.A. and J.A.F. be prohibited from possessing firearms for life, attached to Counts 1 and 5; and an order pursuant to s. 487 that they provide a sample of their DNA on the robbery counts and a forfeiture order on the items seized pursuant to s. 491. [ 2 ] The court has already delivered a fairly lengthy judgment in finding them guilty, and I need not repeat the facts here.

Obviously, if this case goes to a higher court, my Reasons today will have to be read in conjunction with the Reasons I have given earlier. [ 3 ] The two accused, J.A.F. and A.J.A. were convicted after a lengthy trial on July 20, 2017 of all 14 counts on the Information. The facts were largely agreed upon by admissions of fact.

However, further evidence was called with respect to the circumstances of the takedown and arrest of J.A.F. and A.J.A. on August 15, 2014. [ 4 ] There was evidence regarding a police pursuit involving the white F350 after the Mac's robbery on August 12 th of 2014, and the vehicle swap with the red Escalade. None of this evidence was at issue during the trial. The only issue at trial was identification and, with respect to the firearms offences, possession.

All of these offences took place on August 2014. [ 5 ] J.A.F. was arrested on that date because of outstanding warrants, two of which were on Surrey files and, at the time of his arrest, his involvement in these offences was not known but he was a suspect in another robbery. A.J.A. was arrested on August 14 th for possession of drugs, which he was not charged and being in possession of body armour without a license. [ 6 ] Both of the accused were kept in custody on other offences. The Information in this matter was laid on October 14, 2015.

The delay was largely the police investigation required to piece the robberies together and to obtain forensic evidence. [ 7 ] Both of the accused ultimately pled guilty to other offences after their arrests on August 15, 2014, and spent time in custody. Their criminal history, at times spent in custody, has been settled by the Crown. In their written argument, the time spent in custody and other offences obviously has to be deducted from this sentence. [ 8 ] A.J.A. was 27 at the time of the offences and is now before the court as a 30-year-old. His criminal record is extensive, dating back to 2001.

His record is comprised of 11 youth convictions on his record and 41 adult criminal convictions. [ 9 ] The Crown argues that the following adult convictions are relevant for today's proceedings: a robbery in September of 2006; a break and entering in August of 2015; previous convictions for possession of break and entering tools; three convictions for uttering threats; five for assaults; one possession of a weapon for a dangerous purpose; two convictions for possession of stolen property; three theft convictions; two convictions for dangerous operation of a motor vehicle; two convictions for flight from a police officer or resisting arrest.

There are also 20 breaches of court orders on his record, including conditional sentence orders. [ 10 ] Prior to the offences on August 2014, he had been in custody for various property offences and possessing a weapon for a dangerous purpose from January 30, 2014, until July 4, 2014, when he pled guilty to various offences and was released on bail pending sentence.

He was ultimately sentenced on July 22, 2014, to time served, that being six months and four months for various offences, plus 18 months’ probation and a s.109 firearms prohibition order. [ 11 ] J.A.F. was 33 years old at the time of the offence and is now 36 years old. He also has an extensive criminal record dating back to 1993. His record is comprised of 16 youth convictions and 42 adult convictions.

It includes nine robberies; three break and enters; four possession of breaking and entering tools; seven possession of stolen properties; four thefts; two convictions for dangerous driving; three for resisting a police officer; and seven breaches, including a breach of parole in November of 2008, and a breach of a conditional sentence order in December of 2015. [ 12 ] After his arrest, in what I will call the takedown day of August 15, 2014, he remained in custody on various other charges until April 9, 2015, when he was released on a two-year conditional sentence for the offences of breaking and entering that occurred in July of 2014, less than one month prior to these offences.

His time in custody prior to that date was used for other offences. [ 13 ] After he was sentenced on September 30 th of 2015, he committed another breaking and entering on October 15 th of 2015, just six days before his arrest on the case at bar. [ 14 ] His conditional sentence was suspended on December 17 th of 2015 and he was sentenced to 488 days. Consequently, he did not start earning credit for time served for these charges until November 7, 2016. [ 15 ] The Crown has pointed to a number of aggravating factors in sentencing.

First of all, the degree of planning and premeditation; the use of masks by these offenders; the fact that they took steps to conceal or destroy evidence by using pepper spray; leaving vehicle windows open during a rainstorm; and having arranged in advance a swap point for the two vehicles after the Mac's robbery on August 12 th , shows a higher level of premeditation typically seen in these types of offences. [ 16 ] Furthermore, both accused have extensive criminal records including violent offences, and the Crown argues that one of the aggravating factors here is the use of violence.

In the Chevron robbery a large metal wrench was used to smash open a glass door and pointed at the victim, Brad Emery, with the direction not to move, which obviously was a terrifying entrance into the store. [ 17 ] In the Mac's robbery a large metal object was pointed at the victim, Amardeep Kooner, and he was directed to kneel and not to

look up. During the robbery, one of the accused approached Mr. Kooner again and advised him to stay put, or words to that effect. [ 18 ] While not a firearm, it was clear that the tool was used as a weapon, as it was pointed towards both victims during the course of the robberies in an obvious attempt to intimidate them. Furthermore, at his arrest on August 15 th , J.A.F. had a can of bear or pepper spray in his possession. [ 19 ] Both individuals had their face either masked or disguised while committing these offences, which is a further aggravating factor.

Clearly, they were trying to avoid detection. [ 20 ] Regarding the firearms, the Crown argues that the circumstances of the accused being in possession are serious from a public interest perspective. They travelled in a taxi cab with two loaded firearms and into a busy public place in the middle of the day. A.J.A. was wearing body armour.

The two accused had other items on them including masks, tools, and pepper spray that strongly tend towards the conclusion that they were involved in criminality, an inference that can clearly be drawn. [ 21 ] Regarding the possession of stolen vehicles, the white F350 was driven erratically after the Mac's robbery on August 12 th and at one point into oncoming traffic. The police had to stop their police pursuit because of the danger to public safety. In addition, both vehicles were significantly damaged purposefully, it seems, to destroy evidence and had to be written off.

The white F350 was a new vehicle and worth approximately $20,000. The red Escalade was worth approximately $3,000. Both accused were on various court orders, including either probation or bail at the time of these offences, and A.J.A. was subject to a firearms prohibition. [ 22 ] With respect to J.A.F., the court must consider the principles established in Gladue because of his Aboriginal heritage. The court is required to consider and apply Gladue and Ipeelee factors. However, the court is not required to quantify the effect of Aboriginal background upon the sentence, as stated in R. v.

Sunshine , reported at 2014 BCCA 318 , at paragraph 28 . [ 23 ] Also, Ipeelee does not change the fact that the seriousness of the offence remains a proper consideration in a sentencing hearing, citing R. v.

Paul , a 2014 decision, BCCA 81, at paragraph 34. [ 24 ] The Crown submits that the application of the Gladue factors in this case should not result in a significant reduction in the sentence given the seriousness of the offences, his age, and his criminal record. [ 25 ] The Crown has referred the court to the sentencing principles set out in s. 718 of the Criminal Code which sets out a number of objectives aimed at addressing the fundamental purposes of sentencing.

These are denunciation, deterrence, protection of the public, rehabilitation, reparation and the production of a sense of responsibility in offenders, and an acknowledgment of the harm done to victims in the community.

Section 718 mandates that a sentence must be proportionate to the gravity of the offence and the degree of the responsibility of the offender.

The Crown submits that the offences in this case are of an extremely serious nature and the moral culpability of the offenders is high. [ 26 ] Consideration must be given to the principles set out in 718.2, including the principles of the sentence should be increased or decreased to account for the relevant aggravating and mitigating circumstances relating to the offence. [ 27 ] Regarding rehabilitation, both accused have had the opportunity in the past to rehabilitate themselves without success.

While rehabilitation is still one of the goals of sentencing, it should not be the primary principle in sentencing either of these young men. The Crown submits that the possibility of rehabilitation for both of the accused is at the low end of the spectrum. [ 28 ] As for the principle of deterrence, denunciation and protection of the public, the Crown submits that the convenience store robberies are often a means of getting easy cash.

In this case, the accused not only stole cash but other property as well, including cigarettes and lottery tickets. [ 29 ] To victims and the community these types of robberies are frightening and represent serious threats to public safety. Those who work at convenience stores typically work alone and at night, and they have been properly described as vulnerable victims. [ 30 ] Regarding firearms, the Crown submits there is a high need to address the proliferation of guns and gun violence in the community.

The justice system has responded by imposing sentences that reflect the public interest and the hazard guns pose to public safety. [ 31 ] As to the sentencing range, the Crown submits the applicable range of sentence for a convenience store, bank, or fast food restaurant robberies is in the range of two to nine years, as established in R. v. Brogan , 1999 BCCA 278 .

The factors used to distinguish one fact pattern from another were noted to be the age of the offender; the previous criminal experience; the level of violence; the number of offence; the level of premeditation; whether the perpetrator was disguised or not; the type of weapon used and how it was used; the possibility of rehabilitation; the requirement of deterrence in a particular community. [ 32 ] I have been referred to a number of Court of Appeal decisions in the Crown's written argument, including R. v. T.A.N. , 2012 BCCA 498 , where the accused was sentenced to eight years in prison.

The accused was 29 years old. He committed two bank robberies within a two-week span. No weapon was used but the accused claimed to one of the bank tellers that he had a gun. He had 18 previous convictions, including nine robbery convictions. [ 33 ] I have also been referred to R. v. Heatley , 2015 BCCA 453 , where the court imposed a sentence of seven years and 78 days. The accused was 25 at the time of the offences. He committed seven robberies while wearing a mask. He was convicted after trial. The robberies took place over a four-month time period and involved mainly fast food restaurants.

He did not use a weapon for any of these offences. In one of the seven robberies the butt of a handle of a knife was observed in his pocket. The accused had a criminal record involving robbery and was on probation at the time of the offences. The accused was addicted to heroin. [ 34 ] As to firearms, the Crown submits illegal firearms have always been a risk to Canadians; however, in recent years, courts have begun taking a more concerned view regarding sentencing for firearms offences. The majority of firearms decisions in recent years have

involved s. 95 offences concerning restricted or prohibited firearms. The Supreme Court of Canada's decision, R. v. Nur , 2015 SCC 15 , struck down the mandatory minimum sentence to s. 95(1) offences. [ 35 ] Following the Supreme Court of Canada's decision in Nur , the British Columbia Court of Appeal realigned the appropriate range of sentencing for firearm offences in R. v. Holt , reported at 2015 BCCA 302 .

The court expressed its concern regarding firearms, particularly in the Lower Mainland, and at paragraph 18 stated as follows: [18] …In my view, the possession of a loaded firearm does pose a serious threat, and a growing one, to communities across Canada. There is no reason why British Columbia courts should take this threat less seriously than other Canadian courts now do. As Mr. Justice Code stated in Nur : …social norms and judicial responses to them, have changed since the 1980s and 1990s.

The proliferation of handguns has increased, homicides involving handguns have increased, and the justice system has responded to public alarm by stiffening its approach to sentencing in cases involving handguns. It is a common phenomenon, in the law of sentencing, for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change. [ 36 ] The Crown also argues that the range of sentences for firearm possession offences should be based on whether the offence is closer to a “true crime” type of offence or mere regulatory in nature.

The differences in sentences should be based upon the nature of the firearms possession. For instance, an offender who improperly stores a licence and registered firearm should be treated far differently from an offender who has no authority to possess a firearm and no legitimate purpose for doing so. [ 37 ] The court has been referred to R. v. McDonald , 2017 BCCA 271 , the 2017 decision of the B.C. Court of Appeal, where he lawfully purchased and possessed some 49 firearms. The firearms, however, were improperly stored. He was convicted of 12 counts relating to improper or careless storage.

He was also convicted of possessing brass knuckles and possession of cocaine, but in that case the Court of Appeal stated: [33] Typically the “true crime” gun offence involves at least the possession of a loaded, restricted, unlicensed firearm (often of a type falling entirely outside the regulatory framework) in a public place in circumstances posing a material risk to the public. The range for sentences crafted to address those circumstances is designed in part to prevent the proliferation of guns in the community, as well as to protect the public whose safety is put at risk.

Accordingly, the Court of Appeal reduced Mr. McDonald's sentence from 40 months to 30 months of jail. [ 38 ] The Supreme Court of British Columbia has also commented on the impact of firearm related cases on the community. While the phrase "true crime" is not used, Madam Justice Ker, addressed the dangers of criminal possession of firearms in R. v. Radjenovic , 2011 BCSC 1225 , where the Justice states: [101] The impact of firearms offences on the community is as serious as it is broad. In R. v. Huard , 2009 BCSC 999 , Mr.

Justice Sewell referred to the "plague of gun violence which has affected society in the past few years". And in R. v. Cuthbertson , 2009 BCSC 1865 , at para. 23 , Mr. Justice Gaul adopted that characterization and I agree with it as well. The public is acutely aware of the dangers and consequences associated with the serious rash of firearms-related offences that has developed as of late, and it rightly looks to the courts to ensure that offenders convicted of firearms offences are treated fairly but firmly: Cuthbertson, para. 23 .

The Justice continues: [102] In short, the increase in the use of handguns and other firearms in Canadian communities is extremely troubling and grave. These are deadly weapons that create a serious risk for those who choose to carry them and use them, as well as to innocent bystanders who may just be in the wrong place at the wrong time. The safety of the public must receive priority.

Those who would carry and use these kinds of weapons must know the consequences upon conviction will be serious. [ 39 ] The Crown further argues that in this case the courts are focused on the purpose of the possession of the MK22 rifle and the Winchester Defender 12F pump action shotgun. The purpose was obviously for true crimes and was not regulatory in nature. The accused possessed two firearms in a moving taxi which took them to a shopping plaza in the middle of the weekday. Loaded firearms carried by accused persons who have recently committed a string of robberies should be viewed seriously.

The Crown further submits that the possession of the firearms in this case was aggravated by the public nature and the transportation in the taxi. [ 40 ] The Crown further submitted a number of cases to the court as to the appropriate range of sentence for this case, including R. v. Racette , 2016 BCCA 275 , where the accused, 36 years of age, was sentenced to five years in jail for firearms offences. The accused possessed a sawed-off shotgun and methamphetamines. The accused was Aboriginal and properly fell into the Gladue framework. The accused was sexually abused during his school aged years.

The accused had a lengthy criminal record and was on a firearms prohibition at the time. The sentence was increased from two years plus a day, additional sentence to five years in jail. [ 41 ] In R. v. McDonald , 2017 BCCA 271 , the accused, 34 years of age, was sentenced to 30 months. The accused improperly stored numerous firearms that were properly registered. The accused had a possession and acquisition license and had no criminal record.

The court held that these firearm offences were not in the true crime type of offences but this was in the high end for a regulatory type offence. [ 42 ] As for the possession of stolen property, the Crown submits that the fact that subsequent to the Mac's robbery on August 12th and prior to the white Ford 350 being dumped, it was being driven erratically and above the speed limit. As noted above, as an aggravating factor in sentencing for this offence, the white Ford 350 was driven into oncoming traffic during a police pursuit.

As a result of the manner of driving, the police pursuit could not be continued without risking public safety. Both vehicles were recovered with significant interior damage and had to be written off. The white pick-up truck was valued at $20,000. [ 43 ] The Crown further submits that a concurrent sentence for the firearms offences and robberies is not appropriate. The offences

regarding the firearms involve different elements. The principles of sentencing that apply to the possession of loaded firearms do not necessarily intersect and are directed at different societal interests that are being protected. [ 44 ] I have the benefit of a thorough Gladue sentence hearing report. J.A.F. was born in Matsqui in February of 1981. His mother (“Mrs. F.”) is of First Nations descent. His parents separated shortly after his birth. His father (“Mr.

F.”) was a long haul truck driver and his mother raised her children as a single parent with little contact or involvement with their father. [ 45 ] Mrs. F. was a survivor of the residential school system and struggled with a number of significant health challenges, including clinical depression and Hepatitis C. She apparently spent much of her time in bed, J.A.F. reported that he and his brothers were often left to fend for themselves. [ 46 ] The writer of the Gladue report spoke to J.A.F.’s mother, on December 4 th of last year.

She related how she had been removed from her home by a social worker at the age of five and taken to the St. George's Residential School in Lytton, B.C., where she stayed for four years. She said they were always hungry and the food was terrible. She recalls being subjected to physical abuse on a daily basis. She was also sexually assaulted by classmates. She was then sent to a boarding school in Vancouver at the age of nine, where she stayed until she was 15. By then she describes herself as wild, violent, and out of control. She eventually wound up at Oakalla Prison. [ 47 ] She met the accused's father, Mr.

F., when she was 38 years old. She already had three daughters from her first marriage. When they separated, the father was granted custody of the children and she has lost contact with them. She did her best to abstain from drugs and alcohol when she was pregnant with her first son but contracted Hepatitis C from a blood transfusion given to her as part of a C-section delivery. By the time she became pregnant with Jayson she was drinking excessively, as she struggled with flashbacks and depression from residential school experiences. [ 48 ] Mr.

F. left the marriage with a teenaged girl that he was foster parenting, leaving her without financial support and the challenges of being a single mother. She reports that her son J.A.F. was late in reaching his milestones for crawling, walking, and other areas, adding that her son always had difficulty with basic reading and writing skills. [ 49 ] J.A.F. initially left the family home at age 14, shortly after being introduced to crack cocaine.

Since then his residence has been a revolving pattern at youth and adult correctional facilities where he spent relatively short periods of time before returning to custody and/or being released on community supervision. [ 50 ] When, in the community, he has cycled between living on the streets, his mother's resident, substance recovery facilities, or living temporarily with whom he had met while in custody or through his involvement in criminal activities. [ 51 ] He has been in two previous common-law relationships, one of which began in 2003 from which he has a son, J., now 11, with whom he has had limited contact. [ 52 ] Quoting from the Gladue report at page 4, the writer states that: [J.A.F.] had no recollection of any psycho-educational assessments or learning supports and said that he was socially advanced with his similarly aged peers despite being essentially illiterate. [J.A.F.] stated by the time that he was 13 years old he was doing crack cocaine and past caring.

To quote him, he said, "I was lost as far as what was going on in the classroom and no one cared enough to help or explain things to me. Besides that there were bigger things going on. I grew up in poverty and we often didn't have food at home, let alone money for the school lunch program." [J.A.F.] ultimately decided to quit attending school partway through Grade 6. He indicated that he was unable to read or write past the minimum basic level. Over the years, while both in the community and in custody, he has made attempts at upgrading his education but has had limited success in this regard.

He said that he hoped to continue to pursue this goal as he appreciated how his lack of education remained a barrier to opportunities for stable employment. Most recently, while at Fraser Regional Correctional Centre, he has persevered in his educational goals and completed a number of vocational certificates. He has a limited work history of largely consisting of short-term labour jobs, including three months as a swamper for Consolidated Fastfrate Inc., a trucking company located in Port Coquitlam, B.C. He stated that his longest position was installing bank vaults with a couple of his brothers.

He worked there for approximately a year, eventually leaving in 2012, following a relapse to drugs. He then worked in a greenhouse before going back on welfare. More recently, while in the community on a conditional sentence order, imposed in 2015, he again worked briefly with his brothers before relapsing or returning to custody. He reported to the author that while at Fraser Regional he had enjoyed a measure of satisfaction and success building tables and cabinets in the woodworking shop.

He expressed an interest in upgrading his education and exploring trades as part of his success. [ 53 ] His counsel has referred the court to numerous cases, including the Supreme Court of Canada case, R. v. Ipeelee , 2012 SCC 13 . That case involved appeals by Aboriginal offenders with lengthy criminal records. The Supreme Court of Canada quoted from a number of lower court decisions, at paragraph 59 said: [59] The Court held, therefore, that s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of Aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing [...] It does more than affirm existing principles of sentencing; it calls upon judges to use a different method of analysis in determining a fit sentence for Aboriginal offenders.

Section 718.2(

e) directs sentencing judges to pay particular attention to the circumstances of Aboriginal offenders because those circumstances are unique and different from those of non-Aboriginal offenders ( Gladue , at para. 37). When sentencing an Aboriginal offender, a judge must consider: (

a) the unique systemic or background factors which may have played a

part in bringing the particular Aboriginal offender before the courts; and (

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or

connection [...] Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report.

It continues at paragraph 60: [60] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society [...] To be clear, courts must take judicial notice of such matters as 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 of course higher levels of incarceration for Aboriginal peoples.

At paragraph 81 the court discusses the principle of evaluating Aboriginal sentencing since Gladue was decided: [81] First, some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge. The decision of the Alberta Court of Appeal in R. v. Poucette , 1999 ABCA 305 , 250 A.R. 55 , provides one example.

In that case, the court concluded, at para. 14: It is not clear how Poucette, a 19 year old, may have been affected by the historical policies of assimilation, colonialism, residential schools and religious persecution that were mentioned by the sentencing judge. While it may be argued that all aboriginal persons have been affected by systemic and background factors, Gladue requires that their influences be traced to the particular offender.

Failure to link the two is an error in principle. [82] This judgment displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples. It also imposes an evidentiary burden on offenders that was not intended by Gladu e. As the Ontario Court of Appeal states in R. v.

Collins , 2011, ONCA 182 , 277 O.A.C. 88 , at paras. 32-33 : There is nothing in the governing authorities that places the burden of persuasion on an Aboriginal accused to establish a causal link between the system and background factors and commission of the offence... [ 54 ] As for A.J.A., he is, as I understand, now 29 years of age, born in New Westminster and also suffers from a very difficult upbringing. He has two children, both 10, from two separate mothers. He has only recently reconnected with his biological father. [ 55 ] Before these offences he had little contact with his mother.

At the age of five he was placed in foster care that occurred after his mother left him at the Director of Family and Child Services office. He lived in approximately 20 different foster homes and he was subject to domestic violence in two of those homes. He was finally placed in a group home at 15 and then moved in with his grandmother. [ 56 ] Due to his criminal lifestyle and his unfortunate upbringing, his work history is sporadic.

However, he has obtained his GED while in custody. [ 57 ] I recognize that both of these individuals have had severely disadvantaged upbringings, but it is also difficult to overlook the level of violence that was involved in the commission of these offences and that they have also been convicted of firearms offences. [ 58 ] In deciding on an appropriate global sentence, taking into account the facts of this case with the submissions of counsel, the relevant case law, especially the emphasis for crimes of violence of this type, that denunciation and deterrence should be the primary factors, as well as the principle of proportionality, the sentencing provisions of the Criminal Code and the personal circumstances of the two accused, I have concluded that a fit and proper global sentence would be seven years’ incarceration, less time served on an enhanced basis. [ 59 ] For J.A.F., counsel have agreed that the time served has been one year and nine months, and on Counts 1, 3, and 5, I sentence him to seven years, less time served, which brings us to five years and three months. [ 60 ] As for A.J.A., he has served three years and six months and brings us to, on an enhanced credit basis, a sentence of three years and six months on Counts 1, 3, and 5. [ 61 ] On all of the remaining counts, I sentence each of them to two years concurrent. [ 62 ] The victim fine surcharge is payable forthwith, in default one day concurrent. [ 63 ] There will also be an order under s. 109 , a prohibition from possessing firearms, ammunitions, or explosive substances for life. [ 64 ] Also, in all likelihood they have already provided samples of their DNA but I will make that order.

I understand they will not take it a second time. [ 65 ] Furthermore, I will make a forfeiture order for the exhibits seized during this investigation. [ 66 ] Thank you, counsel, for your considerable assistance. [ 67 ] MS. WAGNER: Your Honour, I just have a question with respect to -- and perhaps I missed it because I was speaking to my colleague. Your Honour has provided the sentence of seven years for Counts 1, 3, and 5, and with respect to the other counts, is Your Honour -- [ 68 ] THE COURT: It was two years concurrent. [ 69 ] MS. WAGNER: All right.

[ 70 ] THE COURT: On all of them. [ 71 ] MS. WAGNER: And the other -- and this is my -- I neglect -- the file 212811 which Mr. Willms and Mr. Swartz had spoken to, which is the 109, it's the 117 prohibition that was to be sentenced today as well. There was a joint submission the last date. Mr. Willms can speak to that. [ 72 ] MR. WILLMS: Yes, Your Honour, you will recall Mr. Swartz and I appeared before you. [ 73 ] THE COURT: Yes. [ 74 ] MR. WILLMS: It was six months, joint submission, to be concurrent to the firearms offences. [ 75 ] THE COURT: Yes.

The six months will be concurrent to the firearms offences. [ 76 ] MR. WILLMS: Thank you. And so that would be 212811? [ 77 ] THE COURT: Yes. [ 78 ] MR. WILLMS: Thank you, Your Honour. [ 79 ] THE COURT: And all the orders I made will be in relation to Counts 1, 3, and 5. [ 80 ] MS. WAGNER: All right. Sorry. And sorry, Your Honour, I apologize again.

This is my -- I just wanted to make sure that the times heard for A.J.A. is correct because I actually was using 3.6 years as opposed to converting that to three years, whatever months, but it works out to three years, seven-and-a-half months. [ 81 ] THE COURT: Well, thank you for that. I will round that off to three years, eight months. Accordingly, he has a remaining of three years, four months is served. (REASONS FOR SENTENCE CONCLUDED)