2018 QCCQ 7107, 2018 QCCQ 7107

R. c. Piroli 2018 QCCQ 7107 Charter. Mandatory minimum sentence. Consecutive. Grossly disproportionate. Firearms. COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-107348-143 DATE: October 3, 2018 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

FRANCO PIROLI Accused-petitioner ______________________________________________________________________ DECISION ON SENTENCING AND ON THE ACCUSED-PETITIONER’S NOTICE ASSERTING THAT S.85(4) OF THE CRIMINAL CODE VIOLATES S.12 OF THE CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ [ 1 ] For incidents that occurred on two different dates (October 16, 2013 and June 18, 2014) the accused-petitioner (accused) faced charges that included: assault, robbery, uttering threats and the use of a firearm or imitation of a firearm in the commission of an indicatable offence (uttering threats and assault). [ 2 ] At trial, the accused’s defence was aimed primarily at dismissing the counts relating to the use of a firearm or an imitation firearm in the commission of an indicatable offence, ss. 85(1) a)(3) and 85(2) (a)(3) of the Criminal Code respectively.

The accused’s position was no doubt motivated by the penalties that follow a finding of guilt on the said offences: Section 85(3)

a) Cr. C . mandates a minimum prison term of one year for each of the firearms offences. In the event that there are several firearm offences, s. 85(4) Cr. C . directs that the sentences be served consecutively to each other and consecutive to the sentence imposed for the original indicatable offence. [ 3 ] After the trial, I found the accused guilty on charges covering the two incidents. With respect to the first event (October 16, 2013), I found the accused guilty on a count of assault with a weapon (s. 267(

a) Cr. C. ) and on a second count of having used an imitation firearm weapon in committing a threat (85(2)a)

(3) Cr. C. ). [1] As for the second incident, I entered guilty verdicts on a count of assault whilst carrying a weapon (s. 267(

a) of the Cr. C. ) and on a second count of carrying or using a firearm in committing a threat (s. 85(1)a)(3) of the Cr. C.) . [ 4 ] In both instances, a quarrel over trivial matters degenerated to the point that the accused used a firearm in order to intimidate his victims. For the October 16, 2013 incident, the row between the accused and the victim began as a parking dispute: the former refused to remove his vehicle from the lot reserved for the latter’s place of business. As for the June 18, 2014 incident, the dispute started in a park after the accused suspected that the victim, Ms.

J.L, had stolen his can of beer. The facts covering both incidents will be discussed in greater detail in another

section of this decision. [ 5 ] As I found the accused guilty of using a firearm to commit an indictable offence on two separate occasions, a simple application of s. 85(4) Cr. C. mandates that I impose—at the very least—the minimum term of one year of imprisonment for each of the firearm charges to be served consecutively. A mandatory term of imprisonment, by definition, allows no wiggle room to consider mitigating circumstances relating to the commission of the crimes and the personal circumstances of the offender. Also, the strict application of mandatory prison terms served back-to-back may conflict with the sentencing principle of totality. This principle, set out at s. 718.2(

c) Cr. C. , provides that « where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh, » and imposes a duty on sentencing judges to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [2] [ 6 ] For the accused, the aggregate sentence of 24 months of incarceration mandated by s. 85(4) of the Cr. C. was «grossly disproportionate» to what a fit sentence should be. Accordingly, he challenged the constitutionality of s. 85(4) Cr. C. on the grounds that it violated his

section 12 guarantee in the Canadian Charter of Rights and Freedoms against «cruel and unusual treatment or punishment». Positions of the Parties

Defense [7] During sentencing arguments, counsel for the accused had no issue with the mandatory one-year term set out at s. 85(3)(a)for the firearm offences committed by his client. Instead, his arguments focused on the manner in which the « stacking » effect ofconsecutive sentences at s. 85(4) Cr. C.) results in a sentence that is excessive, « grossly disproportionate » and « totally out of sync withthe norms of criminal sentencing »[3] set out at s. 718 of the Criminal Code.

For counsel, a fit sentence—that reflects the moralblameworthiness of the accused while respecting both the principles of proportionality and totality—would be in the range of 15 monthsof incarceration. [8] The accused’s constitutional challenge followed the two step analysis set out by the Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773, para. 77. First, does the mandatory sentencing provision result in a « grossly disproportionate » sentence forthe accused before the Court?

In the event that the answer is no, he turned to the question of whether the impugned sentencing provisionresulted in disproportionate sentences for other offenders in « reasonably foreseeable situations ». [9] With regards to the first prong of the test, counsel for the accused stressed the factors that were favorable to the rehabilitation ofthe accused : • The accused, a 47 year old flour-mill worker, has no criminal record. • Since his arrest—more than 4 years ago—he has committed no other infraction. For that matter the arrest and trial process havehad a significant dissuasive impact on the accused.

He has learned his lesson. Hence, the sentencing objective of individual deterrencedoes not require the incarceration of the accused nor is his rehabilitation likely to be assisted by a lengthy prison term. • At the time of the commission of the offences, he regularly consumed hard drugs and his life was in shambles. Since his arrest, hehas sought and obtained therapy with regards to issues of anger management and drug consumption. By all accounts, the accused hasnow come to grips with the issues behind his aggressive behavior and his drug addiction.

In his testimony (corroborated by that ofwitnesses who testified on his behalf), he is now a changed man at peace with himself and not so easily drawn into confrontation. • The pre-sentence report is generally positive. The risk of recidivating is tied to the consumption of drugs and the poor choice ofpeople he associated with. However, from the evidence tendered at the sentencing hearing, the stressors or factors that may lendthemselves to re-offending have been seriously addressed by the accused. He sees a psychologist on a regular basis and he regularlyattends Narcotics Anonymous meetings.

In short, a long period of detention is not warranted to prevent him from re-offending. • The accused has expressed remorse for his actions. • He has been gainfully employed for all of his adult life. A long period of incarceration would place his job in jeopardy. At age 47,the accused would have difficulty in finding a comparable union-job with the same benefits he now receives. The accused—by his ownaccount—takes great pride in his work as a flour miller. His rehabilitation will be compromised if he loses the steady job that he valuesand the income that it provides.

His rehabilitation and reintegration into society would only be compromised by being unemployed. [10] Always on the first prong of the test, the accused also noted the collateral damage that would result from a lengthy incarceration : • A prolonged period of incarceration would make it difficult for him to keep the condominium he owns.

At best, his savings couldcover but six to eight months of the costs associated with ownership and maintenance of the apartment, i.e. mortgage payments, condofees, taxes, and insurance. • Though the accused has siblings, he alone has assumed the responsibility of taking care of his elderly mother. On average, hespends circa 15 to 20 hours per week helping her out with basic chores around the house, driving her to medical appointments and withgrocery shopping.

The incarceration of the accused would seriously impact on an elderly woman’s ability to take care of her every dayneeds. [11] On the second prong of the test, counsel for the accused submitted a series of hypothetical applications of the law that have thepotential to attract grossly disproportionate sentences for others. In essence, the hypotheticals highlighted the broad reach of theimpugned provision and its potential to encompass situations where the moral blameworthiness of the offender is not deserving ofmandatory consecutive sentences.

In this regard, counsel pointed out that the offences set out at ss. 85(1)a)(3) and 85(2)a)(3) of the Cr.C. encompass the commission of any indictable offence—regardless of the gravity—whilst using a weapon. This would even includehybrid offences such as mischief if the prosecution chooses to proceed by way of indictment. [12] One of the hypotheticals offered was that of a young man who points an imitation firearm at five or more victims whilstcommitting an offence or whilst trying to escape capture.

A blunt application of the law would entail a simple multiplication of theminimum mandatory sentence for each offence by the number of victims (five years or more depending on the number of victims).Surely, the moral blameworthiness of such an individual is not five times greater than the offender who merely points his weapon at onevictim. [13] Another example submitted by counsel was that of a young man armed with a pellet gun who goes on a shooting spree anddamages the windshields of several vehicles.

If the prosecution chooses to proceed by indictment, the offender would have to serve back-to-back minimum sentences equal to the number of damaged vehicles. Such an outcome would be « so excessive as to outrage standardsof decency » and « abhorrent or intolerable » to society.[4] [14] Defence counsel also noted that the broad reach of the impugned provision is unfair in that it fails to distinguish between theoffender who uses a real firearm and the offender who uses an imitation of a firearm.

While the illicit conduct of the latter may havepsychological consequences for the victim, it is a far cry from the dire consequences that may be incurred by the victims of the offenderwho wields a real firearm (serious bodily injury and even death). Surely, the moral culpability of the offender using a real firearm has tobe greater than that of the offender who merely brandishes a fake firearm. Yet, the law punishes them equally.

[15] Other hypothetical situations focused on the personal characteristics or frailties of a hypothetical offender so as to highlight theprovision’s potential to impose a sentence that is disproportional to his moral culpability : • The accused with a mental disorder not caught by the mental disorder defense. • The accused who qualifies for a mental disorder defense but refuses to invoke it. • The vulnerable and socially awkward student who points an imitation firearm at the classmates who bullied him in order to givethem a taste of their own medicine. [16] As the sentencing provision at ss. 85(4) Cr.

C. is applicable to all offenders regardless of their personal circumstances andcharacteristics, it is inevitable that, in some cases, the imposition of consecutive mandatory sentences will lead to a term of imprisonmentwhich is grossly disproportionate. The prosecution [17] For the prosecution, the gravity of the offences committed by the accused must attract a sentence that reflects society’scondemnation of gun violence.

Firearms are inherently dangerous as they represent the ultimate threat of death to those in theirpresence.[5] Thus, deterrence and denunciation have to be the paramount sentencing principles applied to this case. Even in the absenceof the consecutive sentencing scheme set out at s.85(4) Cr. C., a 24 month prison term for two firearms offences is on the low-range ofwhat a reasonable sentence should be.

Were it not for the accused’s efforts at turning his life around, the prosecution would not haveshied away from suggesting a longer term of incarceration. [18] As the two firearm offences were committed on separate dates (circa 8 months apart) and involved different victims, aconcurrent sentence would leave one infraction unpunished. In this sense, an offender ought not to be seen to be reaping benefits from hisserious criminal misconduct.

Moreover, when considering the overall gravity of the offences, a cumulative sentence of two yearsimprisonment is not unduly long or harsh, let alone grossly disproportionate. [19] The offence committed on June 18, 2014, in and of itself, called for an exemplary sentence in the range of 15 to 18 months.

Thevictim in that incident was understandably shaken and terrorized when the accused—whilst carrying his hunting rifle and holding abullet in one hand for the victim to see—yelled out « I am going to kill you ».When one adds to the wrongdoings of the accused aprevious firearm-related offence (October 16, 2013), there can be no argument that the aggregate sentence of 24 months proposed by theprosecution is more than reasonable and that it does not offend the totality principle. [20] At the sentencing hearing, the prosecution acknowledged the accused’s efforts at turning his life around by seeking help.However, mitigating factors such as rehabilitation have to take a back seat in light of the gravity of the offence and Parliament’s clearmessage at s. 85 Cr.

C. that exemplary sentences are necessary in order to denounce and deter others from using firearms in thecommission of any indictable offence. [21] As the provision for consecutive sentences at s. 85(4) Cr. C. did not increase the length of the sentence faced by the accused,the prosecution argued that I need not consider whether or not the impugned provision amounted to cruel and unusual punishmentcontrary to s. 12 of the Charter.

For that matter, courts should not address constitutional issues that are not necessary to the resolution ofthe matter at bar.[6] In the present matter, the impugned provision would not have any impact on the sentence imposed.

Not only are theconstitutional questions raised by the accused academic, they needlessly add to the complexity, cost and length of the case.[7] -The not so reasonable hypotheticals [22] The prosecution dismissed the reasonable hypothetical situations submitted by defence counsel on the following grounds : • The hypothetical situations do not support consecutive sentences In the case of multiple victims (i.e., the accused who points a firearm at five or more victims whilst committing an indictable offence):Though the indictment may contain a count for each and every one of the victims, the action of pointing a firearm constitutes a singleand continuous transaction.

Viewed in this matter, the Kineapple rule would preclude the imposition of consecutive sentences. • The reasonable hypothetical situation does not support a conviction In reference to the accused who commits an assault at the firing stand and who forgets that he has a gun on him: In such a case, theessential mental element of the infraction—knowledge that he is carrying a gun—is wanting.

As no conviction is possible, thehypothetical situation must be dismissed. • The reasonable hypotheticals do no target the same predicate offence In reference to the young man who shoots at the windshields of parked cars with a pellet gun: On the authority of R. v. Brown, (SCC), [1994] 3 SCR 749, the prosecution argued that reasonable hypothetical situations could only be considered if theyinclude the same predicate offence. In the hypothetical situation offered by defence counsel, the predicate offences relate to thecommission of several mischiefs.

In the matter before the Court, however, the firearm was used or carried for the commission of anassault and a death threat. • In the reasonable hypotheticals, the personality traits of the offender were constructed so as to as to build the most innocent andsympathetic case imaginable In reference to the student who points a firearm at the classmates who bullied him or the mentally ill accused whose illness falls short ofa mental disorder defence: For the prosecution, a mandatory penalty cannot be struck down on the basis of the injustice it may cause to

the best offender imaginable. In constructing a reasonable hypothetical situation, one must avoid using personal features that are far- fetched, remote and designed to garner the most sympathy. [8] [ 23 ] In sum, the impugned sentencing provision should not be struck down as unconstitutional based on hypothetical situations which are inapplicable to the case at bar and constructed so as to paint the most favourable situation possible. Issues [ 24 ] Following the two-step method in Nur , supra, the issues may be stated as follows : 1. Based on the circumstances of the offender and the offence, does the obligation to serve consecutive one-year prison terms (pursuant to s. 85(4) Cr.

C) for firearm offences (set out at ss. 85(1)a)(3) and 85 (2)a)(3) of the Cr. C. ) constitute a grossly disproportionate sentence for the individual before the Court? If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in the real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter . [9] There may be no need to examine hypothetical situations or imaginary offences. [10] 2.

In the event that I conclude that the sentence is fit for the particular accused before the Court, I must go on to ask whether or not the mandatory consecutive sentencing scheme at s. 85(4) Cr. C . is grossly disproportional when applied to other reasonably foreseeable circumstances? [11] [ 25 ] The afore-mentioned questions beget sub-questions of their own : 3. What is a meant by a grossly disproportionate sentence? 4. What « reasonable hypotheticals» fall within the ambit of the impugned law? 5. To what extent can «reasonable hypotheticals» consider the personal traits of the offender?

The evidence The facts [ 26 ] The wrongful doings of the accused cover two distinct events and involve two different victims. The first occurred on October 16, 2013 and the second on June 18, 2014. While the victim and the accused in the first case did not know each other, the victim and the accused in the second case were vaguely familiar with each other—at best, they engaged in polite small talk when they crossed each other’s paths at a local park. [ 27 ] The victim in the first incident, Mr. M.K operated an appliance repair shop in the east end of the city.

He confronted the accused when the latter parked his vehicle on the store-front lot reserved for the clients of the business. The accused flippantly ignored the victim’s stern order to remove his vehicle and made his way to a jewelry shop across the street. Harsh words were exchanged between the two men. [ 28 ] Having finished his business at the jewelry shop, the accused headed back to the appliance repair shop where his car was parked. Meanwhile, the victim was reaching inside the driver’s side of his own vehicle in order to remove two beer mugs .

At one point the accused accosted the victim and used some force to turn him around. Claiming that he acted instinctively and out of self-preservation, the victim immediately struck the accused on the head with one of the beer mugs he was holding in his hand . [ 29 ] Upon receiving the blow, the accused collapsed to the pavement where he lay unconscious for a few seconds. When he regained his senses, he attempted to reach for his eye glasses that were on the ground next to him, but the victim callously kicked them away.

Dazed and upset, the accused then headed to his car and removed from the trunk a hunting rifle that he pointed in the direction of the victim. The latter quickly retreated and the accused did not give chase. The accused then placed the rifle back in the trunk of the car and drove off. [ 30 ] At trial, the accused explained that he opened the trunk of his car in order to retrieve a baseball bat. He was upset and admitted that the bat was intended to inflict «maximum punishment» on the victim.

As the baseball bat was buried in the back of the trunk, he had to remove various items in order to get to it: his hunting boots and picnic cooler that he laid on the ground and lastly his rifle that he placed on the roof of the car. By the time he got his hands on the bat, the victim was gone . For the accused, that was the end of the conflict; he dusted himself off, packed his things and drove away [ 31 ] Though the accused’s version of the events portrayed him as an individual ready to engage in a violent act in order to exact vengeance, it had (so he thought) several advantages: (

i) he never got to use the bat thus sparing him a charge of assault with a weapon; (ii) any other charges accruing from his conduct would not include the mandatory minimum sentence that accompanies the firearm offences at ss. 85(1)a)(3) or 85(2)a)(3) of the Cr. C. ; (iii) it offered an innocent explanation for the rifle the victim claimed was pointed at him; (iv) it allowed him to plead that the victim deliberately lied about a rifle being pointed at him in order to dismiss any suggestion that he (Mr. M.

K) and not the accused was the real aggressor—After all, Mr. M.K. did deliver a serious blow to the head of the accused with a beer mug, knocking him unconscious. In other words, the lie was intended as a pre-emptive strike just in case the accused decided to complain that he (Mr. Franco Piroli) was the victim of an assault with a weapon. [ 32 ] The accused’s version of the facts did not withstand the cross-examination. In a decision rendered orally on November 24, 2017, I discussed at length the manner in which the accused’s testimony strained the limits of credibility.

For the purposes of this decision, I need not review the contradictions, inconsistencies and improbabilities in his version of the events.

[ 33 ] In the second incident (June 18, 2014), the victim (Ms. J.

L) was at a park speaking to a man sitting in a wheel chair. As for the accused, he was close by sitting on the stands next to a soccer field drinking a can of beer. At first, he had a few banal but polite exchanges with the other two individuals. This all changed when the accused suddenly and unexpectedly accused the victim of having stolen a can of beer from him. Despite her protests of innocence, the accused persisted in his allegation and insisted on searching her hand bag. When the victim refused to hand over the bag, the accused tried to snatch it away from her, but she resisted and a tug of war ensued.

Eventually, the accused let go of the hand bag and left the park when the victim shouted out «police». [ 34 ] When the victim saw the accused leave the park, she thought that the confrontation had come to an end and didn’t think of calling the police. Five minutes later, however, she saw the accused come out of a car that had just come to a screeching halt. Walking at a fast clip, the accused was heading towards her and appeared to be carrying something in his hands. As he approached closer, she noticed that he was holding a rifle case which he proceeded to unzip and then toss to the ground.

Now holding a hunting rifle in his hands, he shouted out «I am going to kill you». [ 35 ] Frightened and panic-stricken she ran to her friend sitting in the wheel chair thinking she would be protecting him. But when she saw that the accused was also holding a bullet in one of his hands, she realized that she won’t be of much help to her friend let alone protect herself from harm. She cried out « police » in the hope that it would scare off the accused.

Her ruse appeared to work as the accused turned around and quickly headed back to his vehicle. [ 36 ] At trial, the accused admitted the bare outlines of the victim’s story but added a few wrinkles of his own. In the first phase of the incident (the allegations of having stolen a can of beer and the tug of war that ensued over the victim’s hand bag), another man appeared, the victim’s boyfriend. After he let go of the handbag, the victim’s boyfriend jolted him with a stun gun (taser).

Next, when he came back to the park, he was armed only with the rifle case; the firearm was left behind at his mother’s house. [ 37 ] As was the case with the first incident, the accused’s testimony fell apart in cross-examination. I had no difficulty in dismissing his testimony as contrived and tailored to provide an innocent or alternative explanation to the facts reported by the victim. The circumstances of the accused [ 38 ] The accused is a 47 year old single man who has been gainfully employed as a miller for the past 25 years.

Aside from the accusations in the present matter, he has had no other dealings with the criminal justice system. [ 39 ] At the sentence hearing, much was made of the accused’s bouts with the consumption of hard drugs. According to his testimony, his drug consumption started with marijuana in the mid 90’s and escalated to hard drugs (crack cocaine) by 2005. For that matter, his consumption of crack cocaine was at its highest in the years 2015-2016. [ 40 ] During this period of heavy drug consumption, the accused described himself as a negative and impatient individual prone to confrontation.

To the criminologist who drafted the presentence report, he explained that he becomes impulsive and aggressive when he consumes drugs. [12] In his testimony, the accused stated that he had taken crack cocaine prior to the October 16, 2013 incident at the parking space of Mr. M.K’s business. By his own admission, however, he did not consume any drugs prior to the June 18, 2014 incident involving Ms. J.L at the park. [ 41 ] In August, 2017, however, the accused took measures to turn his life around. To begin, difficulties at the work place with fellow employees prompted him to get help from his employer.

The accused—with the help of his employer—checked into an inpatient drug rehabilitatio n program at Maison Jean Lapointe . In order to maintain his job at the mill, the accused had to complete his rehab (three- week stay) and remain abstinent. To make sure he stays sober, the accused has to pass random urine tests administered by his employer. Documents filed by counsel in the court record indicate that he has not failed a test to date. [ 42 ] The inpatient treatment program was followed up with regular attendance at Narcotics Anonymous meetings.

His sponsors at N.A confirmed that they have seen a tremendous improvement in his outlook on life, noting that he is happier, more sociable and less prone to brooding and impulsive behavior.

He even volunteers his time by preparing the room for the N.A. meetings (i.e., setting up the chairs and tables, passing out the reading material and preparing coffee). [ 43 ] The accused’s older brother—a former addict himself who later became a counselor at an inpatient drug treatment program— delivered a convincing testimony of the changes he saw in his younger sibling following his therapy: Prior to therapy, his younger brother was an aggressive individual who communicated little; he couldn’t even admit that he had a problem.

Now, after more than a year of treatment, he noted that his brother is calmer and at peace with himself. While the «former Franco» shut himself off from the ones who cared for him, the «new Franco» is more open, receptive to others and better able to communicate his feelings. Finally, the «new Franco» is more responsible, he pays his bills and he looks after his elderly mother. [ 44 ] Along with drug therapy, the accused has also consulted with a psychologist on a regular basis since his release on bail back in June 2014.

Essentially, the consultations with the psychologist focused on issues relating to anger management. [ 45 ] The presentence report ordered by the Court canvassed the accused’s difficulties with drug addiction and his tendency to act impulsively when frustrated or upset.

Confronted with the consequences of his actions—and in view of his rehabilitation—the report went on to state that the accused appears to be taking hold of his life by addressing certain risk factors such as drug addiction and anger management. [13] The report cautioned, however, that the accused was a fragile individual and that a drug relapse would compromise his rehabilitation.

In short, the risk of reoffending depended on the accused’s ongoing efforts to remain sober. [14] [ 46 ] At the sentencing phase of the trial, the accused described in the following terms how therapy (both for drug addiction and counseling for anger management) has changed his life : Today, I’m a changed person. I’m not violent and I’m working every day to be a better person. I feel peace in my life and I feel the joy to

live again. (My life) was once dominated by substance abuse. I don’t want to go there anymore; I want to move forward. [47] The accused has expressed remorse for his actions. In both his oral testimony and in a letter he addressed to the victims, heexpressed sympathy to the victims for the fear or terror they experienced on account of his conduct. [48] His words of attrition, however, are mitigated by the fact that he still does not admit to having used a firearm in the commissionof his wrongdoings.

Instead, his condemnation of the wrongful conduct is limited to the scenario recounted in his version of the facts.Thus, he regrets the fear or terror caused to Ms. J.L when he carried a rifle case to the park (June 2014 incident) and he regrets the fearor terror he caused Mr. M.K to incur when he placed his hunting rifle on the roof of his car (October 2013).

His regrets, in short, aretailored to fit his claim of innocence on the firearm charges. [49] Representations on sentencing also focused on the consequences of a lengthy prison terms for his job at the flour mill where hehas been employed for the past 25 years. His employer is aware of his legal situation and continues to support him. The accused,however, did not disclose the full extent of his jeopardy: Rather than tell his employer that he faced a mandatory minimum term of twoyears of imprisonment, he limited the damages to an incarceration of circa 18 months.

At the sentencing hearing, he explained that hedidn’t want his situation to appear graver than it was to his employer. [50] While a sentence of 18 months wouldn’t compromise his employment, a term of two years or more could very well put an endto his job at the flour mill. The accused, admitted, however, that the collective agreement at his place of work permits—under limitedcircumstances—for a two year absence without loss of employment. On sentencing, no collective agreement was filed into evidence.

Inthe end, it was my understanding that an 18 month absence from work would be tolerated by the employer while an absence of two yearsor more was more problematic and perhaps subject to arbitration. [51] The accused went on to explain how a lengthy prison term would cause him to lose the condo he resides at. With no incomefrom work, his savings would only cover a few months of the costs related to the ownership of his property (mortgage, taxes, co-ownership fees, insurance and hydro). [52] A lengthy prison term would also bring its lot of collateral consequences for his elderly mom.

Though the accused has twoother siblings, he’s the only one—from a practical point of view—who could assist his mother with the day-to-day activities of life (i.e.,shopping, medical appointments and chores around the house). The law The relevant sentencing provisions [53] It is an offence under s. 85 Cr. C. to use a firearm (s. 85(1)a)

(3) Cr. C.) or an imitation firearm (s. 85(2)a)

(3) Cr. C.) «whilecommitting an indicatable offence, while attempting to commit an indictable offence, or during flight after committing or attempting tocommit an indictable offence, whether the offender causes or means to cause bodily harm to anyone.»[15] [54] The mandatory minimum penalties for a violation to an offence at s 85 Cr. C. are set out at s. 85(3) Cr. C. :

(3) Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable (

a) in the case of a first offence, except as provided in paragraph (b), to imprisonment for a term not exceeding fourteen years and to aminimum punishment of imprisonment for a term of one year; and (

b) in the case of a second or subsequent offence, to imprisonment for a term not exceeding 14 years and to a minimum punishment ofimprisonment for a term of three years. [55] The provision providing for mandatory sentences to be served consecutively for each separate offence(85(4) Cr. C.) reads asfollows :

(4) A sentence imposed on a person for an offence under subsection (1) or (2) shall be served consecutively to any other punishmentimposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person issubject at the time the sentence is imposed on the person for an offence under subsection (1) or (2).

Grossly disproportionate [56] The Supreme Court of Canada has set a high bar for what constitutes « cruel and unusual » punishment.[16] In order for acriminal sentence to qualify as cruel and unusual, it must be « grossly disproportionate to the punishment that is appropriate, havingregard to the nature of the offence and the circumstances of the offender. »[17] A « grossly disproportionate » sentence has beeninterpreted to mean a sentence that would « outrage our society’s sense of decency » such that Canadians would find it « abhorrent orintolerable. »[18] In order to meet this high threshold, a sentence must be more than « merely excessive » or « disproportionate. »[19]For that matter, sentences that are merely excessive or disproportionate do not meet the threshold of «grossly disproportionate». [57] In order to determine what constitutes a grossly disproportionate sentence, one must first determine what constitutes aproportionate sentence.[20] This involves balancing the sentencing objectives outlined in s. 718 Cr.

C. with any aggravating/mitigatingfactors, the sentencing principles in s. 718.2 Cr. C. and the fundamental principle of proportionality as outlined in s. 718.1 Cr. C.: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [58] The fundamental principle of proportionality requires that a sentence not exceed what is just and appropriate, given the moralblameworthiness of the offender and the gravity of the offence. In R. v.

Ipeelee, 2012 SCC 13 , [2012] 1 SCR 433, para. 37, theprinciple of proportionality was described as the central axis on which sentencing objectives turn :

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — themaintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord tothe various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle ofproportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of theoffence. This is closely tied to the objective of denunciation.

It promotes justice for victims and ensures public confidence in the justicesystem. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, atp. 533 : It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentenceproportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishmenthe received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness ofthe offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadiancriminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense ofthe other. [59] A fit and proportionate sentence, explained the Supreme Court in R. v.

M. (C.A.), supra, at para. 80, is a « highly individualizedexercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. »[21] Proportionality and the totality principle [60] Part and parcel of the principle of proportionality is the principle of totality which is set out at s. 718.2(

c) Cr. C. : A court that imposes a sentence shall also take into consideration the following principles : (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [61] Under this principle, a court is required to craft a global sentence of all offences that is not excessive. In R. v. M.(C.A.), supra, atpara. 42, the Supreme Court explained the relationship between the totality principle and the principle of proportionality : In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the“totality principle”.

The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences formultiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [62] In sum, the totality principle was intended to avoid sentences that cumulatively are out of proportion to the gravity of theoffences and to the offender's overall culpability.

The problem with mandatory minimum sentences [63] The usual argument against mandatory minimum sentencing provisions is that they are generally inconsistent with thefundamental principle of proportionality. More particularly, they operate to block the sentence from reflecting mitigating factors. Evenfor offences that usually call out for deterrence and denunciation, mandatory minimums do not allow for judges to make any exception inan appropriate case.

The situation is compounded when judges are obliged to impose consecutive mandatory sentences for a series ofoffences. [64] In Nur, supra, at para. 44, the Chief Justice, eloquently summed up the manner in which mandatory minimum sentences riskundermining the well-established principle of proportionality and individualized justice : Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing.

They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence,the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts ofthe ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences,because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality.

Theymodify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. Theyaffect the outcome of the sentence by changing the normal judicial process of sentencing. Deference to Parliament [65] The manner in which a mandatory minimum penalty risks offending the principle of proportionality, however, does not make itinherently cruel and unusual. As Justice Lamer pointed out in Smith, supra, at pp. 1072 and 1077: A minimum mandatory term of imprisonment is obviously not in and of itself cruel and unusual.

The Legislature may, in my view,provide for a compulsory term of imprisonment upon conviction for certain offences without infringing the rights protected by s. 12 ofthe Charter. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leaveto the usual sentencing appeal process the task of reviewing the fitness of a sentence.

Section 12 will only be infringed where thesentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. [66] In a similar vein, Gonthier J., writing for the majority in Morrisey, supra, at para. 46, stated that : While it may be ideal to craft a minimum sentencing regime for this crime that would simultaneously pursue all of the traditionalsentencing principles, this is not necessary for s. 12 purposes. As La Forest J. said in Lyons, supra, at p. 329, “the respective importance

of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of theoffender”. I am convinced that this legislation survives constitutional scrutiny even if the sentence pursues sentencing principles ofgeneral deterrence, denunciation, and retributive justice more than the principles of rehabilitation and specific deterrence. In otherwords, the punishment is acceptable under s. 12 while having a strong and salutary effect of general deterrence. It cannot be disputedthat there is a need for general deterrence.

This legislation dictates that those who pick up a gun must exercise care when handling it. Itis consistent with the jurisprudence on the use of firearms: R. v. Pettigrew (1990), (BC CA), 56 C.C.C. (3d) 390(B.C.C.A.), at p. 398. Failure to exercise care will have tragic consequences not only for the victim, but also for the offender. [67] In Steele v.

Mountain Institution (1990), at p. 24 (S.C.C.), Cory J, explained that punishment will be found to infringe s. 12 onlyon rare and unique occasions : It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions ofs. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding.

Alesser test would tend to trivialize the Charter.[22] [68] Because mandatory minimum sentences have been created and enacted by the legislature, courts have recognized that deferenceis owed to Parliament in its decision to emphasize certain sentencing objectives, such as punishment, deterrence and denunciation, overother sentencing principles, such as rehabilitation.[23] The Supreme Court has also held that the sentencing principle of proportionality(as per s. 718.1 Cr.

C.) is not a principle of fundamental justice under s. 7 of the Charter; therefore Parliament is allowed to « limit asentencing judge’s ability to impose a fit sentence » but « cannot require a sentencing judge to impose grossly disproportionatepunishment ».[24] For this reason, a mandatory minimum sentence runs the risk of infringing s. 12 of the Charter if it requires thesentencing judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.[25] [69] In Goltz, supra, Justice Gonthier cautioned that the legitimate purposes of legislative bodies in enacting mandatory minimumsentences should not be easily upset in a challenge under s. 12.[26] In emphasizing the deference owed to Parliament, he adopted thefollowing passage from R. v.

Guiller (1985), (ON SC), 48 C.R. (3d) 226 (Ont. Dist. Ct.): It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties whichmay be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminaland in determining proper punishment.

While the final judgment as to whether a punishment exceeds constitutional limits set by theCharter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only inthe clearest cases.[27] [70] Rational or justifiable penological goals—such as the need to denounce and curb gun violence—may serve to justify amandatory minimum sentence.

In upholding the mandatory four-year term meted out to an accused convicted of criminal negligencecausing death with a firearm, Gonthier J. in Morrisey, held that : The four-year term of imprisonment that the appellant must serve does not constitute cruel and unusual punishment. In thecircumstances of this case, it is clear that the appellant’s criminal conduct was particularly grave.

The punishment imposed on theappellant serves legitimate penological goals and is founded on recognized sentencing principles. (para. 55) [71] Given the nature of the crime, it was permissible, therefore, for Parliament to emphasize the sentencing goals of generaldeterrence, denunciation, and retributive justice more than those of rehabilitation. [72] This being said, general deterrence, without more, cannot sanitize a sentence against gross disproportionality.[28] Put simply, aperson cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others fromoffending.[29] A review of the two-step test in determining what constitutes a «Grossly disproportionality» sentence [73] When there is a challenge to a mandatory minimum sentencing provision, the

section 12 analysis will involve two steps : In the first step, a court looks at whether the mandatory minimum sentence imposes “cruel and unusual punishment” (i.e. a grosslydisproportionate sentence) on the particular offender who is before the court.If the event that the mandatory sentence is not grossly disproportionate for the individual offender before the court, the secondstep of the test allows the court to consider whether the mandatory minimum requires the judge to impose a sentence that isgrossly disproportionate on other individuals in «reasonably foreseeable circumstances».[30] [74] In the first part of the test, one must consider the fitness of the sentence from the perspective of the particular offender beforethe court.

As explained by Lamer J. in the seminal case of Smith at p. 1073: In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. [75] If the mandatory sentence is at this point found to be so excessive as to be grossly disproportionate having regard to theseriousness of the particular criminal conduct and the personal characteristics of the accused, then the punishment will infringe s.12.[31] [76] While the first part of the test addresses all the components of a proportional sentence, factors relating to the personalcircumstances of an accused must take a back seat to the penological objectives of deterrence, denunciation and retribution that areinherent to a mandatory minimum sentence.

In Morrisey, supra, Gonthier J. examined the aggravating and mitigating factors of the crimewithout much emphasis on the accused’s personal characteristics. The offender’s remorse and lack of a previous conviction, for that

matter, were dismissed as typical of the non-intentional crime that he was charged with.

Though there was no reason to believe that four years imprisonment was necessary to rehabilitate the accused (a remorseful first-time offender) the sentence was justified on the grounds that it was necessary to deter others from negligently using firearms and to denounce the crime. [ 77 ] In the second part of the test, the analysis focuses on whether or not the wide reach of the mandatory sentencing provision risks ensnaring an offender whose moral blameworthiness is not deserving of the minimum punishment. [ 78 ] In Smith , supra , the Court employed the hypothetical example of a tourist returning to Canada with one marijuana cigarette to illustrate the potential unfairness of the mandatory minimum seven-year prison sentence for importing narcotics fixed at s. 5(1) of the Narcotic Control Act .

Lamer J, writing for the majority, noted that the provision prohibited the importation of a number of different drugs of varying degrees of harmfulness and that the offences could be committed in different ways.

Also, the provision applied equally to the professional drug dealer with an extensive record of trafficking in hard drugs as it did to the first-time offender found in possession of small quantities of soft drugs on his return from a vacation abroad. [32] In sum, the impugned provision cast too wide a net and, as such, captured offenders and conduct that should not be subject to the mandatory minimum. [ 79 ] It should be noted that the accused in Smith did not argue that the mandatory minimum was cruel and unusual punishment in his particular circumstances (he pled guilty to having imported seven and a half ounces of 85 to 90 percent pure cocaine).

But while the s even-year minimum was not grossly disproportionate for the specific offender before the Court, it would have been grossly disproportionate for a hypothetical young offender who drove back to Canada from a winter break in the U.S.A. and is caught with his or her first « joint of grass. » [33] [ 80 ] In Goltz , supra , the court confirmed the use of reasonable hypotheticals in s. 12 challenges to the provisions of a mandatory minimum sentence. The use of reasonable hypotheticals, however, has to be limited to realistic as opposed to fanciful or implausible situations.

Commenting on the decision of the Court in Smith , Gonthier J., writing for the majority, stated that : As will be seen below, this formulation does not envision that any or all imaginable commissions of the offence in which the punishment would be grossly disproportionate to the wrongdoing warrant a finding of infringement of s. 12. [ 81 ] Laws should not be struck down on the basis of situations that would probably never happen. Thus reasonable hypotheticals require examples that could «reasonably arise».

As Gonthier J. explained at pp. 515-16: A reasonable hypothetical example is one which is not far-fetched or only marginally imaginable as a live possibility. While the Court is unavoidably required to consider factual patterns other than that presented by the respondent's case, this is not a licence to invalidate statutes on the basis of remote or extreme examples. Laws typically aim to govern a particular field generally, so that they apply to a range of persons and circumstances. [Emphasis added]. [ 82 ] In Morrisey , supra, the Court revisited the scope of the reasonable hypothetical analysis.

In the majority decision penned by Gonthier J., the Court upheld the restrictions on the use of reasonable hypotheticals imposed in its previous decision in Goltz —that is, they must be realistic as opposed to marginal or far-fetched. Also, reasonably hypotheticals must be crafted in view of the crime in question: What constitutes a reasonable hypothetical? In Goltz , at p. 506, I said that reasonable hypotheticals could not be “far-fetched or marginally imaginable cases”. They cannot be “remote or extreme examples” (p. 515).

The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question. In Smith , the hypothetical used to invalidate the impugned punishment was a very realistic one. There, the legislation attached criminal liability to importers of illegal narcotics, irrespective of the quantity imported.

The natural and probable consequence of the legislation would be to catch individuals who could only be described as “small offenders” (p. 1080), such as the individual importing a single “joint”. (para. 30) [ 83 ] Interestingly, Gonthier J. cautioned against the use of reported cases when crafting a reasonable hypothetical: [In] constructing hypotheticals, courts can be guided by real life cases, but to the extent that these cases may not be exhaustively reported, they are not bound to limit the fashioning of hypotheticals to the cases that are made available to them.

In fashioning hypotheticals for the purpose of a s. 12 analysis, reported cases can be used with caution as a starting point, and additional circumstances can be added to the scenario to construct an appropriate model against which to test the severity of the punishment. (para. 33) [ 84 ] For Gonthier J., reasonable hypotheticals must be considered at a broad general level rather than at the level of specificity. Reported cases, on the other hand, risked turning on peculiarities never contemplated by the decision in Smith : The hypotheticals used by the trial judge were actual reported cases.

As I explained above, these reported cases have inherent problems, based as they are on evidence adduced by way of agreed facts. Further, it is questionable whether all of the cases considered by the trial judge are common examples of cases that arise under s. 220( a ). Finally, each of these reported cases turns on its own idiosyncrasies and involves considerations at a level of specificity never contemplated by Smith , supra . Under all of these circumstances, I am reluctant to enter into a case-by-case analysis of the specific circumstances of each of the individuals who pleaded guilty to this offence.

Instead, the proper approach is to develop imaginable circumstances which could commonly arise with a degree of generality appropriate to the particular offence.

It is to be recalled that in Smith there were only two considerations for the hypothetical: first, the offender was a first- time offender; and second, he or she imported a single joint. (para. 50) [ 85 ] By restricting reasonable hypotheticals to imaginable circumstances that « arise with a degree of generality appropriate to the particular offence », factors relating to the personal circumstances of the accused become secondary : On balance, I am not convinced that the mitigating factors offset the aggravating factors in this case.

Nor am I convinced that the mitigating factors displace the gravity of the offence. The remorse demonstrated by the appellant is not at all surprising, given the nature of the offence. Nobody is alleging that the appellant intended to kill Mr. Teed; malice is neither alleged nor proven. In these circumstances, remorse is to be expected. The absence of a criminal record is also not surprising, given the nature of this offence. As

the criminally negligent do not intend the results they cause, acts of criminal negligence are not generally committed as part of a pattern or a career of criminality. I would sincerely doubt that there are many career criminals founding their crime spree on criminal negligence.

Finally, the prospects for employment, while relevant, cannot be dispositive by themselves for determining the constitutionality of the punishment. (para. 40) [ 86 ] In short, a general or generic notion of reasonable hypotheticals (commonly occurring circumstances) does not take into consideration the personal and perhaps exceptional circumstances relating to a particular offender. [ 87 ] In Nur , supra , McLachlin C.J., writing for the majority of the Court, reaffirmed the two-step test for s. 12 Charter challenges, but added some flexibility by changing the language used to describe the second prong of the test: The «reasonable hypothetical » offender or situation becomes the «reasonably foreseeable» situation.

While the reasonable foreseeability test excludes « remote » or «far-fetched» situations (as in Goltz and Morrisey ), its application is « not confined to situations that are likely to arise in the general day- to-day application of the law. » [34] Instead, « it targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. » [35] [ 88 ] Under the broader test of reasonable foreseeability, personal characteristics may be entertained when constructing a reasonable hypothetical : First, what is reasonably foreseeable necessarily requires consideration of the sort of situations that may reasonably be expected to be caught by the mandatory minimum, based on experience and common sense.

This means that personal characteristics cannot be entirely excluded. For example, as we will see in applying the test to this case, it may be relevant to look at the fact that an offender at the licensing end of the spectrum caught by the mandatory minimum might come into innocent possession of the prohibited or restricted firearm, or be mistaken as to the scope of the prohibition. [36] [ 89 ] The use of personal features in constructing reasonable foreseeable situations, however, is not limited to lawyerly ingenuity.

Along with far-fetched or remote examples, courts are instructed to exclude using «personal features to construct the most innocent and sympathetic case imaginable. » [37] [ 90 ] In Nur , the Court considered the constitutionality of the mandatory minimum sentencing provisions for the possession of loaded prohibited firearms, contrary to section 95(1) of the Criminal Code . McLachlin C. J., determined that the three year mandatory minimum penalty for possession of a prohibited firearm (s. 95 of the Cr.

C. ) could constitute cruel and unusual punishment as it might lead to grossly disproportionate sentences in reasonably foreseeable circumstances . In essence, the wide range of foreseeable circumstances encompassed by s. 95—ranging from serious firearms infractions to mere licensing transgressions—inevitably lead to grossly disproportionate sentences for those at the «lower end of the spectrum» : 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 years or 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 who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so.

At the far end of the range, stands the 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. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code . [38] [ 91 ] In Lloyd , supra , the Court considered the constitutionality of mandatory minimum sentences in the context of a trafficking offence under the C ontrolled Drugs and Substances Act ( CDSA ). At issue was the provision at s. 5(3)(a)(i)(

D) of the CDSA, that mandated a minimum term of one year imprisonment for trafficking a

Schedule I or II drug where the offender had been convicted of another drug-related offence within the previous 10 years.

Adopting the more flexible approach set out in Nur (reasonable foreseeable situations instead of general day-to-day hypotheticals), the Court’s analysis included personal characteristics of an offender, i.e. drug addiction, time between previous offence and present offence and efforts at rehabilitation. [39] As was the case in Nur , the Court ruled that the impugned provision covers too wide a spectrum of activity, « applying indiscriminately to professional drug dealers, who sell drugs for profit, and to drug addicts, who possess small quantities of drugs that they intend to share with friends, spouse or other addicts. » [40] Application Step 1 : Grossly disproportionate from the perspective of the person charged [ 92 ] In the first part of the test, I must look at whether the mandatory minimum sentence imposes « cruel and unusual punishment » (i.e. a grossly disproportionate sentence) on the accused who is before the Court.

As mentioned above, this exercise requires that I determine, firstly, what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing set out in the Cr. C.

In particular, the sentence I will render must take into consideration the fundamental principle of proportionality which requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. [ 93 ] Having determined what an appropriate sentence would be for the offender, I must then determine if it is grossly disproportionate to the consecutive one-year terms for each of the firearm offences as mandated by s. 84(2) Cr.

C. [ 94 ] In the present matter, the accused focused on personal characteristics that would render the cumulative two year sentence grossly disproportionate. Much of the evidence at the sentence hearing turned around his positive efforts at rehabilitation—be it from his drug addiction or with his issues relating to anger management. He understands the inadequate nature of his actions and he has expressed remorse for the harm incurred by the victims.

[95] Evidence was also presented to show stability—he’s been gainfully employed for the past 25 years at the same flour mill.Finally, evidence was presented to show the collateral damage he risks if a lengthy sentence is imposed—he risks losing a well-paid,steady job and there will be no one to care of his elderly mother. [96] The risk of reoffending is low, so long as the accused remains clean and sober. To that effect, it was pointed out that theaccused has not had any other brushes with the law since being arrested in the present matter circa four years ago.

A lengthy sentence isnot necessary for particular deterrence. For that matter, a lengthy sentence would only compromise the process of rehabilitation. [97] I am not insensitive to the positive efforts of the accused at turning his life around. However, when it comes to crimescommitted whilst using a firearm, sentencing principles relating to rehabilitation must be secondary to sentencing principles favouringdeterrence, denunciation and retribution.

Two grounds mandate this position: Firstly, the fact that Parliament has set out mandatory oneyear consecutive sentences for each firearm offence commands that denunciation, deterrence and retribution be the primary objectives ofthe sentencing process. Mandatory minimums are “a forceful expression of governmental policy in the area of criminal law”.[41] Assuch, Parliament is owed substantial deference in crafting mandatory minimum sentence.[42] [98] Secondly, even in the absence of mandatory consecutive prison terms, one cannot deny the gravity of the offences committed bythe accused.

Though no firearm was discharged, there are few situations more terrifying than being threatened with a firearm. Theexperience was particularly traumatizing for the victim, Ms. J.L. As for the victim, Mr. M.K., he quickly retreated from the scene whenhe saw that a firearm was pointed in his direction. [99] The fact that the accused risks his job in the event of a lengthy sentence will bear little weight on the sentence I will render. InR. c.

Laurendeau, 2007 QCCA 1593 , a case of conjugal violence, the Quebec Court of Appeal stated that loss of employment isa factor that could be considered in the sentencing process. However, loss of employment along with other measures taken by theoffender to rehabilitate himself could not diminish the aggravating factors or circumstances of the case : Que l'intimé ait pris les mesures pour contrôler sa violence est certes louable et cette réalité doit être prise en compte comme circonstanceatténuante. De plus, la perte de l'emploi est un autre élément qui peut être considéré.

Cependant, faire primer ces seuls éléments sur tousles autres principes et facteurs, sans raison particulière et en présence des circonstances aggravantes du dossier, constitue une erreur deprincipe qui permet à la Cour d'appel d'intervenir suivant les enseignements précités de la Cour suprême. (para. 21) [100] In R. c. Blais, 2013 QCCS 25, the accused pled guilty to an armed assault (s. 267(

a) Cr. C.). On two occasions he drove hisvehicle in the direction of the victim, an off-duty police officer, who had to jump out of the way in order to avoid being hit. The day ofthe trial, the accused pled guilty before the

summary convictions judge and was granted a conditional discharge. Among the mitigatingfactors considered by the sentencing judge, the accused risked losing his job if a conviction was entered. On appeal to the SuperiorCourt, the conditional discharge was overturned by Justice Fraser-Martin. His decision is long and detailed and canvasses several of theaggravating and mitigating circumstances of the case.

For the purposes of the present decision, I will limit myself to his commentsholding that the loss of employment is not an attenuating factor : Le mieux qu’on peut dire est qu’il n’a pas d’antécédents judiciaires et qu’il a un emploi stable et important. Qu’il perde son emploi s’ilreçoit un casier judiciaire est peut-être vrai, mais ce n’est pas un facteur atténuant.

Le même commentaire s’impose par rapport avec sonplaidoyer de culpabilité à l’infraction provinciale, notamment l’accusation de délit de fuite. (Para. 179) [101] In any case, the loss of employment in the present matter may be no more than an academic issue. The accused’s employer isaware of his situation and has assured him that his post will be waiting for him so long as his absence is limited to 18 months.

Though itwas not clear at the sentencing hearing, it seems that the collective agreement at his place of work allows for a maximum period of twoyears away from the job before an employee loses all his recourses. Moreover, parole eligibility will mean that the accused couldtheoretically resume his activities after serving one third of his sentence. This is well in advance of the 18 month absence the employer iswilling to accept.

Though parole eligibility should not be a factor in determining the length of a sentence, there’s no reason why it shouldnot be considered when it comes to evaluating the potential collateral damage alleged by the accused. [102] I am not insensitive to the fact that the accused is charged with looking after the day-to-day needs of his mother (shopping,medical appointment and chores around the house). According to his testimony, attending to his mother takes about 15 to 20 hours perweek of his time. This being said, the gravity of his wrongdoings cannot be occulted by the fact that he is a good son.

Also, the accused’smother is not a frail woman in need of constant care. She lives alone in a house that she owns in the east end of the city. At trial—whereshe was called as a witness for the prosecution—there was no indication that her physical or mental abilities were compromised. For thatmatter, she had the wherewithal to cleverly craft a testimony designed to smooth over parts of her statement that were incriminating forher son. [103] All in all, I do believe that the accused is a reasonable candidate for rehabilitation.

However, considerations of rehabilitationcannot outweigh denunciation and deterrence in a case like this. [104] The prosecution asked for the minimum sentence of one year on each of the firearms offences to be served consecutively asmandated by s. 84(2) Cr. C. With respect to the totality principle, the prosecution reminded the court that two offences happened eightmonths apart and involved two distinct victims. Even in the absence of mandatory minimums, consecutive sentences were required lestone of the crimes go unpunished. The prosecution also pointed out that the incident involving Ms.

J.L, by itself, was worth at least a 15month prison term. Viewed in this manner, it could hardly be said that the aggregate term of 24 months is a grossly disproportionatesentence. [105] On the basis of penological factors prioritizing denunciation and deterrence, I agree that a cumulative prison term of 24 monthsdoes not constitute a sentence that is too severe and crushing. However, I cannot totally sweep aside the accused’s serious efforts atrehabilitation for which he merits some credit.

Considering all the factors, I am of the view that a proportional sentence that takes intoaccount all the aggravating and mitigating factor would be (on the low side) in the range of 18 to 20 months of incarceration. [106] A sentence in the range of 18 to 20 months does not result in any significant change to the mandatory minimum sentence of 24

months pursuant to the application of 85(4) Cr. C. Having regard to the objective gravity of offences involving the use of a firearm, acumulative prison term of two years is not « so excessive as to outrage standards of decency » in the community. Accordingly, I rule thata cumulative sentence of 24 months does not impose on the accused a grossly disproportionate sentence.

Step 2 : An examination of the reasonable foreseeable situations [107] Having found that the appropriate sentence is not grossly disproportionate when applied to the accused before the Court, I mustnow turn to the question of whether the provision would result in a grossly disproportionate sentence in a reasonably foreseeablesituation. [108] Counsel for the defense, it will be recalled, argued that the broad reach of the legislation likely encompasses situations where anoffender’s wrongdoing and blameworthiness is not deserving of the mandatory minimum punishment.

He submitted several scenarios tohighlight the manner in which a strict application of the law would result in grossly disproportionate sentences. In the next section, I willreview the hypotheticals submitted by counsel and comment on their relevance to the case at bar.

First scenario: The mandatory provision casts too wide a net in that it makes no distinction between the offender who uses an imitationof a weapon (and therefore presents no risk of bodily harm to a victim) and the offender who uses a real firearm (and therefore poses areal risk of serious injury or death to a victim). [109] At first blush, it might seem unfair that the impugned provision imposes the same minimum punishment to the offender whowields a real gun as opposed to the one who uses an imitation firearm or a toy gun.

The hypothetical submitted by counsel for defense,however, fails to consider that the legislation is not only aimed at preventing danger of serious injury or death associated with the use offirearms, but also at preventing the psychological trauma incurred by the victims. A robbery with an imitation firearm may be just asterrifying (as a robbery involving real firearms) for its victims who may not have the ability, while being held at gunpoint, to appreciatethat the firearm being used is not real.[43] As Justice Fish explained in R. v.

Steele, supra, at para. 23: The use of a firearm in the commission of a crime exacerbates its terrorizing effects, whether the firearm is real or a mere imitation. Indeed, they share that very purpose. [110] Similarly, in R. v. Al-Isawi, 2017 BCCA 163 , at para. 39, the British Columbia Court of Appeal held that the gravity ofthe crime is not mitigated by the fact that the offender’s weapon was not operable : While s. 85(1) prohibits the use of a firearm, there is no meaningful distinction insofar as s. 85(2) prohibits the use of an imitationfirearm.

The purpose of s. 85 is to combat the fear, alarm and trauma caused by the use of a firearm, real or imitation, and it has beenrecognized that whether an offender uses a real or imitation firearm does not impact the harm to the victim who would not know thedifference.[44] [111] In short, the provision legitimately includes offences committed with either a real firearm or an imitation of a firearm. Thus, theargument holding that the impugned legislation casts too wide a net—ensnaring both the offender who wields a real firearm and the «lessdangerous» offender who brandishes an imitation weapon—must fail.

Second scenario, the «stacking effect»: The accused who commits several firearm-related offences the same day [112] In this hypothetical example, the offender is liable to consecutive one-year terms for each offence committed. In the event thathe used his firearm on five different occasions, for instance, he would incur a sentence of five or more years (depending on the numberof incidents or victims). Such a sentence would be excessively harsh, disproportionate and contrary to the sentencing principle ofproportionality. [113] Such a situation was contemplated by the British Columbia Court of Appeal in R v.

Al-Isawi, supra, where the defendant putforth a scenario in which an offender committed 20 robberies, which « may result in a punishment more serious than that formanslaughter. » [45] However, the court noted that there have been only three Supreme Court cases where a mandatory minimumsentencing provision was struck down for a s. 12 violation, and in each instance, the law was struck down because the scope of theimpugned provisions were reasonably capable of ensnaring a low-culpability or « small offender. » [46] Thus, the court in Al-Isawirejected the 20 robbery scenario because such an offender is not a “small offender” who would be low on the culpability scale, which isthe focus of the hypothetical circumstances analysis.[47] As the number of offences increase, so too does the offender’s moralculpability and the gravity of the criminal conduct giving rise to the sentence.[48] [114] I accept the reasoning of the Court in Al-Isawi and therefore dismiss the hypothetical situation proposed by counsel for theaccused.

Third scenario, more «stacking»: The student who uses a firearm (or imitation firearm) to threaten the classmates who bullied him. [115] Once again, the hypothetical example offered by defense counsel highlights the potential for a grossly disproportionate sentenceif consecutive prison terms were handed down for each one of the victims named in the indictment.

Pointing a pellet gun at fiveclassmates, for instance, would attract a minimum sentence of five years. [116] The rule against multiple convictions (Kineapple rule), however, means that this hypothetical offender does not risk incurring anaggregate sentence of five years. Dealing with a similar hypothetical offender, the Ontario Court of Appeal in R. v. Kinnear, supra, heldthat « the rule in Kineapple forecloses convictions on all of the five charges involving the use of an imitation firearm while committingan indictable offence » [49] : The factual nexus connecting the three offences is obvious.

The uses of the firearm referred to in the three charges all arose at the sametime and place. There were no intervening events capable of severing the factual nexus. All three offences were motivated by a singlecommon objective, Kinnear’s desire to escape custody. (para. 45)

[117] While Parliament has abrogated the Kineapple rule in order to permit convictions for both the underlying indictable offence andfor the use of a firearm while committing an indictable offence, it has not done so for multiple charges of using a firearm in the course ofthe same transaction : The deterrent purpose driving s. 85(4) would be defeated if the Kienapple rule were applied to exclude convictions for both theunderlying indictable offence and the charge of using a firearm while committing that offence.

That purpose would not suffer, however,were the Kienapple rule applied to multiple charges of using a firearm in the commission of an indictable offence arising out of the sametransaction. Offenders would still face a minimum mandatory penalty by virtue of the use of a firearm during the commission of anindictable offence. That penalty would be consecutive to the penalty imposed for the underlying indictable offence. (para. 52) The rule in Kienapple applies unless Parliament has clearly indicated otherwise.

In my view, s. 85(4) is intended to impose an additionalpenalty for the use of an imitation firearm beyond the penalty imposed for the underlying indictable offences that were committed as partof the same transaction.

It does not go so far as to preclude the operation of the Kienapple rule to multiple charges of using a firearmwhile committing an indictable offence that arise out of the same transaction. (para. 53) Fourth scenario, still more «stacking»: The young man who goes on a shooting spree with a pellet gun and blows out the windshields ofseveral cars [118] In this case, the hypothetical offender would face consecutive minimum sentences of one year for each count of mischief. Fiveblown-out windshields, for example, would amount to a cumulative sentence of five years.

For a crime that is limited to property damage(the few thousand dollars to repair or replace the windshields), the aggregate sentence of five years for a young man with no previousbrushes with the law would be grossly disproportionate and « so excessive as to outrage standards of decency » [119] To highlight the provision’s potential to subject an offender to a disproportionate sentences, counsel for the accused added thefollowing variation to his hypothetical situation: The offender is sitting in the passenger seat of the car driven by the individual who isfiring the pellet gun at the windshields of parked cars.

If the passenger encouraged—by his words or his deeds—the shooter, he becomesan accomplice and is liable to the same crushing punishment of five years of incarceration. [120] This hypothetical example must be dismissed as the underlying offence is one of mischief and not assault or uttering threats as isthe case in the present matter. Support for this position is found in the decision of the Supreme Court of Canada in R. v. Brown, supra.

Inthat case, the accused was found guilty of three counts of robbery, two counts of a disguise and three counts of using a firearm in thecommission of an indictable offence.[50] In first instance, he was sentenced to three four-year terms to be served concurrently on therobbery charges; two one-year terms on the disguise charge to be served concurrently to each other and to the robbery charges; and threethree-year terms on the use of a firearm charges, to be served in accordance with s. 85(4) of the Cr. C., consecutively to the othercharges.

On appeal, representations on sentencing turned on the constitutionality of the mandatory minimum consecutive sentences setout at s. 85(4) Cr. C. To demonstrate the law’s potential to

[…]