R. v Trepanier, 2016 NBPC 02

PROVINCIAL COURT OF NEW BRUNSWICK JUDICIAL DISTRICT OF MIRAMICHI Citation: R. v Trepanier 2016 NBPC 02 Date: April 4, 2016 Docket: 14924113 Between: Her Majesty, The Queen, - and - Todd Trepanier Date(

s) of hearing: February 18, 2016 Appearances: J.Guy Savoie - for the Crown Patrick Hurley Q.C. - for the Defendant JACKSON, P.C.J. Introduction : [ 1 ] The Defendant (herein referred to as “Trepanier”)is a forty nine year old lifelong resident of the Miramichi area who has plead guilty to one count under each of sections 86 , 99 , and 101 of the Criminal Code of Canada , (herein “the Code ”). [ 2 ] Of particular importance to this case is the count contrary to s. 99(2) of the Code which carries on conviction a minimum penalty of three years imprisonment. The Defendant asserts that s. 99(2) infringes

Section 12 of The Canadian Charter of Rights and Freedoms (herein “the Charter ”) in that its application results in a grossly disproportionate sentence as applied to him.

Facts [ 3 ] At all material times (that is between April 17 and July 22, 2014) Trepanier was the person in charge of the sale of firearms at Miramichi City Surplus in Derby, Northumberland County , New Brunswick. [ 4 ] As a result of learning that a person prohibited from possessing a firearm had purchased one from Miramichi City Surplus using a false name and without being asked to provide a Purchase and Acquisition Licence (herein a “PAL”) an undercover agent was sent to that establishment on two occasions, July 4 and July 22, 2014. [ 5 ] On the first occasion Trepanier sold the undercover agent a firearm and 1200 rounds of ammunition without asking for a PAL.

On the second occasion he sold two firearms and a quantity of ammunition to the undercover agent, again without asking for a PAL. On this occasion, when informed by the undercover agent that the guns were destined for the Province of Quebec, Trepanier replied that he didn’t care or want to know what he was doing with the guns in Quebec. [ 6 ] The following day a search warrant was executed at Miramichi City Surplus. The results from that search indicated that a number of sales were recorded as being sold to anonymous buyers, and of the named sales, ten of the fourteen buyers were not verified as having a PAL.

One sale, of a 30.06 hunting rifle, which was caught on security video was to a person prohibited from possessing firearms. People were being told they didn’t require a PAL if they had “native status”.

[ 7 ] The search of the premises also revealed several firearms, all hunting rifles, which were improperly stored. [ 8 ] Trepanier entered guilty pleas to the charges, has no prior criminal record and has, throughout his entire life, enjoyed a positive reputation in the community as a hard worker, an honest and dependable individual, and a devoted husband and father. Indeed, some twenty-two letters of reference or recommendation were filed with the Court on the sentencing hearing.

Issues [ 9 ] The issues to be determined are: a. what is the appropriate sentence for this particular offender for this crime? b. does the application of s. 99(2) of the Code result in a grossly disproportionate sentence when applied to this accused? c. if so, can the infringement be saved by the application of s. 1 of the Charter ? d. does the application of s.99(2) of the Code result in a grossly disproportionate sentences as applied to reasonable hypotheticals; and e. if so can it be save by the application of s. 1 of the Charter . [ 10 ] I propose to deal with only with issues a, b and d as the Crown has requested to make further submissions on whether the minimum sentences could be saved under s.1 of the Charter if necessary.

Analysis and Decision [ 11 ] In R. v. Nur, 2015 SCC 15 at paragraph 46 the Supreme Court of Canada set out the procedural steps a sentencing court must follow when faced with a challenge to a mandatory minimum sentence in these words: “[46] To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code .

Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence.

If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter.” [ 12 ] Chief Justice McLachlin then considered whether or not a sentencing court faced with a s. 12 Charter challenge should consider only the current offender or also other reasonably foreseeable situations where the minimum sentence provisions might apply concluding at paragraph 65 of Nur (supra) as follows: “[65] I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations.

The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons. Application to Trepanier [ 13 ] In determining the extent of a just and appropriate sentence for Trepanier, I start with the purposes and principles of sentencing as

outlined in s. 718 of the Code which state: “ The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.” [ 14 ] It is trite law to observe that sentencing is an individualized exercise in which the court must consider a number of factors such as the gravity of the offence, the personal characteristics of the accused, the circumstances surrounding the commission of the crime as well as the purposes and principles of sentencing enunciated above . The sentencing court must also take into account any aggravating and mitigating factors as set out in s. 718.2(a) (

i) to (

v) and the principle that similar sentences should be imposed on similarly situated offenders for similar crimes. [ 15 ] Trepanier is a first offender, a good father, husband and a productive member of society who has plead guilty to three serious offenses involving firearms.

McLaughlin C.J.C. noted in Nur (Supra) that gun related crimes pose grave dangers to Canadians and that Parliament has chosen to impose severe penalties for gun related crimes concluding at paragraph 5 with these words: ” This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances”. The question here is whether there exist appropriate circumstances to impose an exemplary sentence? [ 16 ] The mitigating factors present are an early plea of guilty, lack of any criminal record, and a supportive family and community.

Conversely, the sole aggravating factor is the nature of the crime itself, selling firearms illegally. [ 17 ] There are a number of facts in this case which distinguish it from many of the decisions to which I have been referred.

Firstly all the transactions, as I understand it, involved “long guns” that is neither handguns nor restricted weapons; secondly while Trepanier was either oblivious or willfully blind to the requirement that anyone wishing to purchase a firearm must provide a PAL, it does not appear that his motivation was financial, and finally there is no suggestion that the firearms were destined for either gangs or other criminal organizations. [ 18 ] In R. v. Neault 2013 SKPC 174 the guns themselves were obtained by criminal activity, the offender had a prior record for a firearms offence and the motive was financial gain.

Cardinal P.C.J found that a three year sentence was appropriate. Similarly in R. V. Radjenovitch 2012 BCSC 630 a gun dealer with no prior record was sentenced to four years consecutive to an eighteen year sentence on other matters where the activity was profit driven. [ 19 ] Closer to home we have the case of R. v. Cater 2012 NSPC 38 where Derrick P.C.J. sentenced a twenty one year old offender without prior adult record to a total of eight years for six offences relating to the illegal possession of three firearms and eight offences related to firearms trafficking.

In the course of her decision Judge Derrick said at paragraph 22:

“[22] The evidence also revealed that Mr. Cater was a gun trafficker. As I noted in my decision convicting Mr. Cater, theintercepted communications revealed the commercial nature of his activities. (see, for example, R. v. Cater, [2012] N.S.J. No.139, paragraph 186) In relation to all the offences, Mr. Cater was not a naïve school boy merely caught up in the criminalconduct of others. He was a controlling force, a “player”, to borrow a term he used in one of the intercepts.

Again in that case the crime was profit driven with the knowledge that it was to criminal elements that the guns were being provided. [20] In R. v. Shobway 2015 ONCJ 457 a twenty six year old aboriginal offender with significant substance abuse issues sold two handguns to his drug dealer to pay his drug debts. S.G.

Radley-Walters J. observed at paragraph 19: “I further find, however, that due to the fact that these two guns were sold to a drug dealer, the Applicant knew or ought to haveknown that this was inherently dangerous to the community as those firearms would be used by the drug dealer to guard himselfand his illegal drugs. In addition, the Applicant had been a licensed handgun owner and under the circumstance was aware ofthe regulations regarding the possession of, use of and transferring of hand- guns.

I find that the Canadian society would notfind a sentence of three years for this Applicant to be so excessive as to outrage their standards of decency and disproportionateto the extent that they would find the punishment abhorrent or intolerable.” He went on, however, to sentence the offender to a sentence of twelve to eighteen months plus probation on the basis of the applicationof reasonable hypothetical situations. [21] I conclude that given the factual circumstances of this case, a consideration of the aggravating and mitigating factors noted aboveas well as the aims and purposes of sentencing that, but for the provisions of s. 99(2), a proportionate sentence for Trepanier would be asentence between twelve and eighteen months imprisonment.

I am of the opinion that a mid-range provincial sentence of imprisonmentwould sufficiently deter not only Trepanier but others in like situations from dealing with the sales of such inherently dangerous items asfirearms and ammunition in a careless or cavalier manner. [22] I must now deal with the question as to whether a three year minimum sentence for Trepanier would be grossly disproportionateto the sentence I propose. [23] The Supreme Court in a range of cases from R. v. Goltz (SCC), [1991] 3 S.C.R. 485 to R. v.

Ferguson 2008 SCC15 and confirmed in Nur (Supra) has indicated that a grossly disproportionate sentence will be one that is more than merely excessive butrather must be a sentence in regard to the particular offender that outrages the community’s standards of decency by being excessive tothe point where the sentence would be considered abhorrent or intolerable. [24] The factual circumstances closest to the present case may be found in R. v. Friesen 2015 ABQB 717. Justice V. Ouellettesummarized the facts thus: “The facts of this case are that Mr. Friesen is 48 years old, with no criminal record.

His crime is failing to obtain theappropriate business license to transfer or sell firearms from his business, and being reckless as to whether Mr. Froese (thepurchaser) possessed the appropriate license to acquire or possess a firearm. The firearms transferred to Mr. Froese were non-restricted firearms, as opposed to restricted or prohibited.” (words in brackets are mine) [25] Two guns were sold to Mr. Froese who used one of them to commit suicide.

After reviewing comments made in Parliament bythe then Minister of Justice Ouellette, J. concluded: “[22] It is clear that Parliament’s intention in imposing these mandatory minimum sentences was to target handguns,drugs traffickers, and gangs.

[23] The facts of this case do not deal with those issues. The facts of this case concern the failure to follow certain licensingrequirements, not drug trafficking or gang activity ... [25] The question is whether the three year mandatory minimum would result in a grossly disproportionate sentence forMr. Friesen. [26] The Crown relies on the decision of R v Lewis, 2012 ONCJ 450 , 102 WCB (2d) 272. The Crown argues that thefacts in this case are far worse than those involving Mr.

Lewis, who was sentenced to one year in jail I respectfully disagree. [27] The facts in R v Lewis are far more aggravating than the facts of this case. In R v Lewis, an undercover police officercontacted the accused, who was a drug trafficker. The accused then supplied the undercover police officer with significantamounts of cocaine, knowing that the buyer was making the purchases for the purpose of resale. The transactions between theundercover police officer and Mr. Lewis happened over a number of days and Mr.

Lewis was motivated for further andlarger sales of cocaine to the undercover police officer, who was posing as a drug trafficker. The two talked about their illegalbusiness relationship and the undercover police officer raised some security issues with Mr. Lewis. Mr. Lewis then told thepolice officer that he could get him a “four fifths”, meaning a 45 caliber handgun. [28] Although the hand gun was never delivered, the issue was that the accused was already in the illegal drug business andoffered to supply another person in the illegal drug business with a firearm, for the purpose of protection.

Those facts are farmore severe than those in this case. [29] In this case the facts are very clear. There is no evidence that Mr. Froese was ever going to commit a criminal or illegalact with the gun, and, in fact, he never did. [30] I conclude that the three year mandatory minimum sentence is grossly disproportionate to Mr.

Friesen.” [26] In this case there is no indication of trafficking for profit, or of selling to gangs or criminal organizations, and no indication thatTrepanier, other than selling the firearms without verifying that the purchaser has the requisite permit, was involved in any sort of illegalactivity. Unlike the facts in Nur (Supra) the offence did not involve hand guns and did not take place in an area where street gangs andhandguns and the resulting violence were endemic. Rather the setting was rural New Brunswick where owning and using firearms forrecreational purposes is commonplace.

I therefore conclude that for this offender in these circumstances a three year mandatoryminimum would be a grossly disproportionate sentence. However, if I am wrong in that conclusion, I will now address the application toreasonable hypotheticals. Application to a Reasonable Hypothetical [27] The Supreme Court in Nur (Supra) has indicated that reasonable hypotheticals must be grounded “in a situation that mayreasonably be expected to arise”, they should not be far-fetched or remote and neither fanciful nor speculative.

The question becomeswhether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate tosome people’s situations. McLachlin C.J.C. gave examples of a person who has a firearm in one residence as opposed to another or aperson who inherits a firearm and before being able to apply for permission to have the item commits an offence. In those situations(which admittedly dealt with s. 95(1) of the Code) she observed that the

section foreseeably caught essentially licensing offences whichinvolved little or no moral fault and little or no danger to the public and concluded at paragraph 83: “….We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences whichinvolve little or no moral fault and little or no danger to the public. For these offences three years’ imprisonment is grosslydisproportionate to a fit and fair sentence.

Firearms are inherently dangerous and the state is entitled to use sanctions to signalits disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term ofimprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminalsentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society.

As the Court ofAppeal concluded, there exists a “cavernous disconnect” between the severity of the licensing-type offence and the mandatoryminimum three-year term of imprisonment: para. 176. Consequently, I conclude that s. 95(2)(a)(

i) breaches s. 12 of the Charter.”

[28] In Friesen (Supra) Ouellette J. came to a similar conclusion in respect to the mandatory minimum in s. 99(2) when he said atparagraph 32 et seq: “[32] With respect to a reasonable hypothetical, I adopt all of the reasoning of the majority in the Nur decision. I also adoptthe reasoning of the Ontario Court of Justice in R v Shobway, 2015 ONCJ 457 , 124 WCB (2d) 230, which appliedthe principles set out in Nur. [33] There is a hypothetical situation, similar in some ways to the one raised in Shobway, where a family member has afirearm for many years, either as veterans of war, or as part of an estate, and the firearm is transferred down from one familymember to another. [34] This

section would catch individuals, which pass down a firearm as part of a family heirloom, if the individualreceiving the firearms does not have the appropriate licensing requirements to possess or acquire the firearm. It would seem tome that this was never the intention of Parliament. Parliament was not concerned with these types of licensing infractions, when they imposed the mandatory minimum sentence requirements. [35] Parliament imposed the mandatory minimum sentences in an effort to remove handguns and serious prohibited andrestricted firearms off the streets and out of the hands of criminals.

Parliament did not intend to punish non-criminals with athree year mandatory minimum sentence for failing to comply with the licensing regime. [36] Therefore, I would find the three year mandatory minimum sentence with respect to sec 99 of the Criminal Code tobe unconstitutional, based on this reasonable hypothetical.” [29] For the above reasons I find that the imposition of the mandatory minimum sentence provided for in s. 99(2) of the Code to beunenforceable, as it is inconsistent with S. 12 of the Charter and must fall unless it can be justified by s. 1 of the Charter. [30] I will hear Counsel on that matter at a date which is mutually convenient. _______________________________________ R.

LESLIE JACKSON, Prov. Ct. J.