r v. Davide Joseph, 2016 QCCQ 9275

R. c. Di Ruzza 2016 QCCQ 9275 JP2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-073038-124 / 500-01-073037-126 DATE: September 8, 2016 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Davide Joseph DI RUZZA Accused REASONS FOR SENTENCE [ 1 ] On June 22, 2015, the accused was found guilty of possession of a prohibited firearm that was seized in his bedroom in May 2012.

He also pleaded guilty to charges of possession for the purpose of trafficking of 50 pills of amphetamines and 1.3 grams of cocaine that were found in his bedroom on the same date. [ 2 ] The police seized the drugs and firearm in the execution of a search warrant. At the time of the events, the police had specific information to the effect that a firearm was concealed in a metal box in the accused’s bedroom. During the search of the bedroom, a revolver was found inside a small container located on a desk. Seven matching bullets were seized inside the container.

Drugs and two expandable batons were also found elsewhere in the bedroom during the search. [ 3 ] On the day of his arrest, the accused stated that he had bought the gun and ammunition a month prior to the search for $250 from “ some white people with hoodies ” in Pointe St-Charles. He added that it was for protection in his house and stated that he never tried to use it. [ 4 ] It was proven at trial that the accused did not hold any authorization, license or registration certificate for the firearm. The revolver in question was a Rossi (model 13) with a capacity of seven bullets.

It was built to fire .22 long rifle rim-fire cartridges. A rubber band was wrapped around the barrel to hold it in place and the serial number had been obliterated. In spite of some missing parts, it was established at trial that the revolver in question was capable of firing projectile. On the whole of the evidence, the Court concluded beyond a reasonable doubt that it was a functional and operational firearm within the meaning of the Criminal Code [1] .

The Court further concluded that the accused had the requisite mens rea for the offence [2] . [ 5 ] At the time of the events, the accused was 20 years old and had no prior conviction. He pleaded guilty in 2013 for a breach of condition (a day curfew) for which he was sentenced to one day in jail. He is now 24 years old and has no other criminal conviction or pending case. [ 6 ] Evidence was presented by the accused at the sentencing hearing. Members of his family were present throughout the procedures to support him. At the time of the events, the accused was using and selling drugs for easy profit.

In his testimony, he said that prior to his arrest, he sold and delivered drugs for a period of six to 12 months, mostly ecstasy and methamphetamine. He said that he decided to buy a firearm as he was increasingly becoming paranoid from drug use. He further said to the psychologist that testified at the sentencing hearing that he bought the firearm to protect his ill-gotten drug gains, as he was paranoid.

In his testimony, he stated that he acquired the two expandable batons for the same reason. [ 7 ] According to the accused, it is through an acquaintance that he took steps to buy the revolver one month prior to his arrest. A meeting was set in a park where an unknown man brought him the firearm and bullets in the presence of the go-between. The accused paid for the gun, took it home and put it in a container in his bedroom. [ 8 ] The accused stated in his testimony that he ceased selling and using hard drugs on his own initiative after his arrest. According

to him, he succeeded without entering any treatment program or consulting any physician regarding the paranoid episodes he faced at thetime of the events. The accused also stated that he ceased consuming marihuana a bit later. [9] Since his arrest, the accused has worked in warehouses as a stock handler for different companies. He recently completed thetwo courses he was missing and obtained his high school diploma in April 2016.

Furthermore, he applied to be accepted in a plumbingand refrigeration program, as his goal is to become a plumber. [10] On a personal level, the accused has been in a relationship with his girlfriend for several months. They got engaged last year andhis fiancée was pregnant at the time of the sentencing hearing. She has since given birth to their first child who was born just a fewweeks ago.

A letter written by his future mother-in-law, whom has known the accused for a year, describes him as a caring andrespectful young man. [11] At the hearing on sentencing, a psychologist retained by the defense filed a six-page report describing the profile and risk ofdangerousness of the accused. On page 4 of the report, the psychologist explains the history of substance abuse as depicted by theaccused in the interviews. She writes that Mr. Di Ruzza reported daily consumption of various drugs and alcohol in the months prior tohis arrest.

She says that he claimed: “that the drug abuse affected his judgment and had a negative impact on his relationships” and thathe “experienced memory loss and [that] his mental health declined, citing paranoia, unfounded fears, anxiety and poor problem-solvingas some of the negative effects of his excessive drug abuse during that time”. She also writes that he did not seek any treatment for hissubstance abuse, as he was seemingly able to cease consuming by himself. [12] In regards to dangerousness, the psychologist concludes her report in the following terms: “[…] Mr. Di Ruzza is at low risk forfuture violence”.

POSITION OF THE PARTIES [13] Given all the circumstances of the present case and the applicable principles, the Crown submits that a global term ofimprisonment of 30 months would be a just and appropriate sentence. In support of its submission, the Crown relies on many recentprecedents in which weighty sentences have been imposed to similar offenders in comparable circumstances. [14] The defense submits, on the other hand, that the present case does not call for such a heavy sentence.

Given all the personalcircumstances of the accused, including the steps he has taken since his arrest to turn his life around, the defense urges the Court toimpose a conditional sentence order pursuant to s. 742.1 of the Criminal Code. In support of its argument, the defense relies on somecases in which more lenient sentences have been imposed. In the alternative to a conditional sentence order, the defense submits that anintermittent jail term would sufficiently meet the interest of justice.

ANALYSIS [15] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are:the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary,rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders andacknowledgement of the harm done. [16]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and thedegree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for anyaggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to thoseimposed on similar offenders in similar circumstances. [17] The maximum sentence for the offence of possession of drugs for the purpose of trafficking is life imprisonment in the caseof cocaine and 10 years for the amphetamines. The maximum for possession of a prohibited or restricted firearm with readily accessibleammunition is 10 years of imprisonment. At the time of the events, s. 95(2)a)(

i) of the Criminal Code provided that a mandatoryminimum of three years of imprisonment was applicable in the case of first offenders possessing a firearm in those circumstances. In R.v. Nur[3], the Supreme Court of Canada held that this mandatory minimum term of imprisonment was unconstitutional. In light of thatconclusion, the Court is not bound by any mandatory minimum. [18] It must be emphasized that the determination of a fit sentence is a fact-specific exercise. The facts of the offence, thecircumstances of the accused and his moral blameworthiness are all factors that the Court has to consider.

Section 95 of the CriminalCode covers a wide variety of potential conduct ranging from “licensing-type offences”[4] to the “outlaw who carries a loadedprohibited or restricted firearm in public places as a tool of his or her criminal trade”[5]. The severity of the sentence will alwaysdepend on all the applicable factors, including the specific type of conduct in which the accused got involved in regards to thefirearms[6]. [19] That being said, the courts have consistently considered the combination of illegal guns and drugs as an aggravating factor onsentencing. In R. v.

Wong[7], at paragraphs 11 to 13, the Court of Appeal for Ontario held: [11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat topublic safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination isnow well recognized. [12] These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence.Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, (ON CA), [2005]O.J.

No. 3532. [13] The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing. Thesentencing judge’s reasons note “the real tragedy that the combination of drugs and firearms has caused in the Greater Toronto Area,

including York Region”. [ 20 ] In the recent case of R . v. Green [8] , the Court of Appeal of Quebec upheld a sentence of two years of imprisonment imposed to a 19 year-old man found in possession of a loaded prohibited firearm. The accused was arrested on the street with the gun in his pocket. He had no criminal record or pending case and was not in possession of any drugs. In concluding that the sentence was not demonstrably unfit, the Court held, at paragraph 22, that: [22] Le juge a considéré l’ensemble des circonstances.

La jurisprudence révèle d’ailleurs que la fourchette des peines imposées pour des infractions commises dans des circonstances similaires est de 18 mois à 3 ans. Les décisions imposant une peine de 3 ans révèlent généralement des circonstances plus graves que celles présentes ici. […] [ 21 ] In R . v. Ulysse [9] , the accused pleaded guilty to a count of possession of a loaded firearm that was found in his house in the execution of a search warrant. He had no criminal record and claimed that he was strictly holding the firearm for someone else, which was determined by the Court to be a mitigating factor.

The fact that the firearm was stored in a drawer rather than being carried in a public place, along with the “moderate risk” that the accused would reoffend, were also considered to be mitigating circumstances. Notwithstanding these factors, the Court held, at paragraphs 80 to 82: [80] Cela dit, la jurisprudence canadienne s’accorde depuis longtemps pour dénoncer sans ambages le danger inhérent que constituent les armes à feu. [81] Ainsi, déjà en 1993, la Cour suprême du Canada relève dans R. c.

Felawka que « l’arme à feu est expressément conçue pour tuer ou blesser ». [82] Il s’ensuit que les objectifs de dénonciation et de dissuasion se révèlent prédominants dans la jurisprudence canadienne portant sur les peines imposées dans les cas de possession d’arme à feu. [ 22 ] In the end, after an extensive review of the caselaw and of the circumstances of the case, the Court sentenced Mr. Ulysse to 18 months of incarceration. [ 23 ] In R . v.

Holt [10] , a 66 year-old heavy drug user man was apprehended by the police for a driving infraction after spending the night consuming alcohol and smoking crack cocaine with his passenger. During a search of the vehicle, the police found a backpack containing a loaded firearm. Given all the mitigating circumstances, including the fact that the accused did not have a criminal record, the sentencing judge held that a sentence of 18 months of incarceration was appropriate. On appeal, the British Columbia Court of Appeal increased the sentence to 30 months of incarceration despite the mitigating factors.

After examining the applicable and relevant caselaw, the Court held, at paragraph 18: [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. [ 24 ] In R . v. Tyrell [11] , the accused was convicted by a jury for possession of a loaded prohibited firearm that was found in a closet. The serial number had been removed and the magazine was capable of holding 13 bullets.

The accused had a minor and dated criminal record and was supported by his family. In spite of the good prospect of rehabilitation and his “ seeming willingness to change his life ”, he was sentenced to 38 months of incarceration. At paragraph 44, the Court held: [44] On the basis of the facts of this case and the cases involving similar offenders in similar circumstances as set out above, even if the mandatory minimum sentence had not existed, I would have concluded that a 38 month sentence for possession of one loaded prohibited firearm without authorization were fit. […] [ 25 ] In R . v.

Kennedy [12] , the Court of Appeal of Manitoba overturned a conditional sentence order imposed by a sentencing judge to a first offender found in possession of many firearms, magazines and ammunition at his residence. After a careful review of the principles [13] and an extensive analysis of the post- Nur caselaw [14] , the Court concluded that a global sentence of three years of incarceration was the fit sentence to be imposed. In paragraphs 58 and 60, the Court held: [58] Given all of this, I am of the view that a sentence of three years is a fit sentence for the section 95(1) offence contained in count 15.

The facts that the accused is to be sentenced as a first offender, he did not threaten anyone with the Armalite rifle and did not use it in any criminal activity are important considerations. However, they do not detract from the fundamental seriousness of the offence. […] [60] I agree with the Crown that the trial judge erred in principle by dismissing the importance of deterrence and denunciation in these circumstances. These principles are to be given significant weight when sentencing an offender for firearms offences, unless the offences involve minimal moral blameworthiness, which is not the case here.

This is so whether or not an offender uses or acquires firearms to commit other offences. [ 26 ] Lastly, in R . v. Marshall [15] , the Court of Appeal for Ontario upheld a sentence of three and a-half years of imprisonment imposed for possession of a handgun found in a closet in an apartment used to sell drugs. At paragraph 53, the Court specifically held: [53] The trial judge considered the appellant’s youthfulness. While the sentence imposed would be the appellant’s first penitentiary sentence, his crime was serious and committed in the course of his commission of other admitted drug-related crimes.

Although the courts should impose the shortest possible sentence in cases involving a youthful first time offender, the sentence must be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence. As I have already said, the appellant’s offence was on the true crime end of the s. 95 spectrum. A sentence of three and one-half years is fit in the circumstances. [ 27 ] That being said, the record shows the following mitigating factors in the case of Mr. Di Ruzza: ➢ The young age of the accused;

➢ His lack of a criminal record aside from one minor conviction in 2013 for a breach of condition; ➢ His substance abuse problem at the time of the events; ➢ The recognition of his wrongdoings; ➢ The significant and important steps he has taken to turn his life around following his arrest, and the support he has from his family; ➢ The fact that the firearm found in his possession was seemingly always locked in a container rather than being carried in public places; and ➢ The conclusion of the psychologist that the accused is “ at low risk for future violence ”. [ 28 ] The Court acknowledges that the firearm in the present case was not in perfect operating condition and that an alternative manner of shooting - which took extra time and increased the risks of misfire - had to be used. [ 29 ] However, it must be emphasized that the gun in question was bought by the accused on the black market for the purpose of protecting his ill-gotten gains.

By his own admission, the accused was at the time involved in the illegal drug business selling methamphetamines and ecstasy for easy profit. He trafficked drugs on a regular basis for a period of six to 12 months prior to his arrest. The gun, ammunition and expandable batons were tools that he acquired for his own protection as he was getting more and more involved in a violent criminal underworld.

The combination of gun and drugs is clearly an aggravating factor in the present case. [ 30 ] Furthermore, as pointed out by the prosecution, the offence committed by the accused is unquestionably more than a “ licensing- type offence ”. The gun was bought from people involved in criminal activity at a time when the accused was getting paranoid. The serial number was obliterated. And although it might not have been specifically used yet, it was obviously aimed at protecting both the accused and his illegal gains.

In that regard, the offence falls within the “ true crime end of the s. 95 spectrum ”, as opposed to the “ licensing-type offence ”.

This factor must be taken into account. [ 31 ] Having regard to all the facts, the Court concludes that the seriousness of the offence, the subjective circumstances of the offence, including the combination of drugs and gun, the role played by the accused in the commission of the offence and the duration of the involvement of the accused in the drug business are all aggravating factors. [ 32 ] In light of all those circumstances, the Court concludes that the submission of the defense as to the appropriate sentence to be imposed is clearly inadequate.

In spite of the undisputable weight of the mitigating factors, strong aggravating factors require a more significant sentence than an intermittent jail term or a conditional sentence order. Given all the facts, the Court has no hesitation to conclude that those two measures would be inconsistent with the fundamental purpose and principles of sentencing set out in the Criminal Code .

And although more lenient sentences may have been imposed by the courts in some of the cases submitted by the defense [16] , the facts of these cases can all easily be distinguished from the case at bar. [ 33 ] Had it not been of the significant efforts of the accused to turn his life around and the other mitigating factors mentioned above, the Court would have imposed a long penitentiary term with no hesitation.

However, having regard to the appropriate weight to be given to these important factors, the Court is of the opinion that such a term would be too severe. [ 34 ] For all those reasons, and after considering all the circumstances, the caselaw and the applicable principles, the accused is sentenced to a global term of imprisonment of 20 months , which will be broken down in the following manner: ➢ In file 500-01-073038-124, on count 2 (possession of firearm) : 16 months of incarceration; ➢ In file 500-01-073037-126, on counts 1 and 2 (possession for the purpose of trafficking): 4 months of incarceration to be served consecutively to the sentence imposed in file 500-01-073038-124; [ 35 ] Pursuant to

section 109 of the Criminal Code , the Court prohibits the accused from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years; and prohibits the accused from possessing any prohibited or restricted firearm, and any prohibited weapon, device or ammunition for life. [ 36 ] Pursuant to

section 491 of the Criminal Code , the firearm and ammunition in the present are ordered forfeited to Her Majesty and shall be disposed of as the Attorney General directs. __________________________________ YVAN POULIN, J.C.Q. Me Luc Pagé For the prosecution Me Deborah De Thomassis For the accused

Dates of hearing: April 19 th and 29 th , 2016