R. v. STOVE, 2018 MBPC 30

CITATION: R. v. STOVE, 2018 MBPC 30 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Minh Nguyen ) for the Crown ) and ) ) ) Joseph Darryl Stove ) Carl O’Brien ) for the Accused ) ) ) ) Sentence delivered: ) August 14, 2018 DEVINE, P.J. Introduction [ 1 ] Joseph Stove is a 22-year-old Indigenous man who pleaded guilty to several serious firearms offences, including pointing a firearm, possessing a firearm in a vehicle and possessing a prohibited firearm. The Crown proceeded by way of indictment. A trial of these and several other offences commenced several months ago.

The Accused challenged the admissibility of his statement to police in a voir dire at the beginning of the trial. At the conclusion of the voir dire , I admitted the statement into evidence. At the trial continuation date, Mr. Stove pleaded guilty to the above offences, and the other offences were stayed by the Crown. I ordered a pre- sentence report with a Gladue component. [ 2 ] Mr.

Stove does not have a criminal or youth record. [ 3 ] The Crown is seeking a sentence of four years, citing the need for denunciation and deterrence to be expressed in a case that involves loaded firearms in circumstances which demonstrate a high degree of criminality. The defence is seeking a sentence of 18 months, citing Mr. Stove’s non-criminal antecedents and youth. Facts [ 4 ] On November 5, 2016 at approximately 7:00 a.m., Mr. Stove, drunk and armed with a loaded Sterling semi-automatic assault rifle, knocked on the door of a house in the north end of Winnipeg with co-accused Brock Swampy.

The householder opened the door and Mr. Stove pointed the loaded assault rifle at him. Mr. Stove did not know the man. The householder slammed the door and said he was calling the police. Mr. Stove yelled that he was going to blow out the windows and Swampy threw a shovel through the window, shattering it. The householder called police, believing his window had been shot out. Mr. Stove and Swampy fled on foot through the residential neighbourhood with the loaded guns, going to a nearby 7-11 to get some food. They hid the firearms beside a dumpster while they went inside. First Swampy left in a cab, then Mr.

Stove came out, retrieved the firearms, the loaded assault rife as well as a sawed- off rifle with ammunition, and took another cab to a “crack house” on Pritchard Avenue where several people were hanging out. The cab driver called police. The police tactical unit and several other police units arrived at the Pritchard house within minutes. The house had multiple entrances and multiple people inside. Police saw the loaded assault rifle on a bench in the garage through the garage window. They arrested Mr. Stove and others, and found both the loaded firearms as well as ammunition for both firearms.

Several witnesses testified to seeing Mr. Stove handling one of the firearms while he was in the Pritchard house. The police officers described Mr. Stove as appearing sober, articulate, intelligent, engaged, polite and cooperative. He provided an inculpatory statement. One of the things Mr. Stove told police in his statement was that members of a street gang had tried to shoot him the week before, so he borrowed a gun. He

admitted during sentencing that he was hanging out with gang members. [ 5 ] The Crown filed photographs of the firearms. The sawed-off 22 rifle was sawed down to 11 inches. The stock was curved down to allow it to be used pistol-style and it was wrapped in black electrical tape. The assault rife had a shoulder strap and stock, also allowing for a pistol-style hold.

Sentencing: Its Purpose, Guiding Principles and Objectives [ 6 ] The fundamental purpose of sentencing as set out in the Criminal Code is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is accomplished by imposing just sanctions that have one or more objectives. Those objectives include denouncing unlawful conduct and the harm done to victims, deterring Mr. Stove and others from committing offences and separating Mr.

Stove from society where necessary, rehabilitation, reparations for harm done to victims or the community, and promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims or the community. [ 7 ] The main sentencing objectives in this case are denunciation and deterrence. Because these are offences involving firearms, the objective of rehabilitation plays a lesser role. [ 8 ] The fundamental principle of sentencing is proportionality – the sentence imposed must be proportional to the gravity of the offence and the degree of responsibility of Mr. Stove.

The Offences [ 9 ] Sentences for gun offences are significant, owing to the inherent dangerousness of guns. [ 10 ] Mr. Stove pleaded guilty to three firearms offences. The offences, details of the firearms involved and maximum sentences are as follows: - Possession of a loaded firearm in a motor vehicle pursuant to section 94(1). Mr. Stove had a Sterling semi-automatic assault rifle and a bolt-action, loaded, sawed-off 22 caliber rifle with him in the taxi cab. The maximum sentence for this offence is ten years. - Pointing a firearm at a person, contrary to

section 87. The maximum sentence for this offence is five years. The firearm he pointed was the assault rifle and it was loaded. - Possession of a prohibited weapon, contrary to section 91(1)(a). The firearm was the loaded, sawed-off, 22 calibre rifle. It did not have a serial number. The maximum sentence for this offence is five years. [10] Both firearms were loaded when they were found by police. The area in which Mr. Stove was running around and travelling in a taxi with the loaded firearms is a high crime, densely populated urban environment and residential area.

The loaded guns were then put in a garage, unsecured and in plain view from the garage window. Ammunition for both firearms was found by police. Mr. Stove had the guns in a known “crack house” where multiple people, many of whom were likely using crack cocaine and therefore under the influence of drugs, were coming and going. At the time of the offences Mr. Stove admitted he was intoxicated. The Offender [ 11 ] The pre-sentence report prepared in this case is fairly positive, but it is clear that Mr. Stove has tended to underplay both his drug and alcohol use and his gang involvement.

He has a reasonable education, Grade 12, but no post-secondary education, and although he was an excellent student and diligent worker and someone who participated in and benefited from school, community and employment support programs, his involvement appeared to drop off around the same time he stopped living in the family home and when he likely started getting involved with negative community members and with criminal or negative activity. [ 12 ] He was 21 years old and did not have a criminal record when he committed these offences. He was remorseful and wished to apologize to the victim.

He generally does not hang out with gang members, he told the writer of the pre-sentence report, but it is clear from his statement to police and his comments at sentencing, that these crimes were gang-related. He told police that gang members made him carry the guns, because he does not have a criminal record and had no previous involvement with gangs. At his sentencing hearing, he said he made a mistake by hanging out with gang members. Moreover, the pre-sentence report discloses that in August 2015 he told his doctor that he had recently been pepper sprayed from five feet away while walking in the north end.

The doctor’s note says he “lives at home with roommate, doesn’t attend school or work, “gang life” according to him.” [ 13 ] Mr. Stove’s mother was 15 years old and a drug user when he was born; he was raised by his great-aunt and her partner. By all accounts, his upbringing was positive. He attended school regularly and was well-cared for and loved by his adoptive parents. When he was about 12 years of age, he learned that he was adopted, which was emotionally difficult for him. [ 14 ] He graduated from high school in circumstances that show dedication and perseverance on his part.

He suffered a significant head injury caused by a serious assault when he was “jumped” in Grade 11, on November 15, 2013. He was in a coma for several days and then had a long period of rehabilitation to relearn how to walk and speak. He was not able to enter school that fall, but went back and achieved his Grade 12 after his recovery. The vice-principal of his high school observed that prior to the assault he had very good grades and was highly involved in sports teams, but he was not the same after the assault, graduating with marks in the 50’s.

Other administrators in the school had concerns about him being involved in street life. A worker in the after-school support program in which Mr. Stove was involved from 2010 until 2016 spoke in glowing terms of him and said that he was “a good person who was changed after his trauma. He became more of a “follower” instead of making his own good decisions.”

[ 15 ] His mother also spoke of the head injury and stated that after the head injury, Mr. Stove was not quite the same person. She said he had not been living with her for the past four or five years (that is, not since 2013 or 2014) and Ms. Klyne from the school support program noted that he was largely responsible for himself, and that stable employment and safe housing were concerns. [ 16 ] Mr. Stove had also amassed a significant amount of work experience from the time he was in middle school, up to the age of 20. After these offences occurred and prior to going into custody on December 28, 2017, Mr.

Stove was receiving social assistance and attending a program called Life Train to assist with finding employment. His social assistance worker advised that Mr. Stove had found some employment through the program. [ 17 ] Mr. Stove has long term plans to continue his education; he expressed interest in studying to become a gym teacher or a graphic designer. [ 18 ] Mr. Stove consumed alcohol to the point of intoxication at times, when he drank with friends every two weeks. His medical records show that he was admitted to hospital with the traumatic head injury in an intoxicated state in 2013.

He experienced alcohol withdrawal and required Valium for 24 hours and it was documented “Likely chronic hydrocephalus.” His psychiatrist noted on March 1, 2016 that he reported headaches, forgetfulness and anxiety. He requested Tylenol 3 and told his psychiatrist he had been buying Xanex on the street. The psychiatrist declined to prescribe Tylenol 3 and told him to stop buying Xanax and using cannabis. After November 2017, his alcohol use increased. He plans to be sober when he is released from custody. [ 19 ] He has two friends who are not criminally involved. He has a girlfriend.

He has positive family support. [ 20 ] He is Cree and Ojibway, with treaty status from Brokenhead Ojibway Nation. He learned about his Cree culture as a child from his maternal grandfather, and at school. Many members of his maternal family attended residential school. His mother was of the opinion that none of that affected Mr. Stove. [ 21 ] Mr. Stove has likely under-reported his involvement with gangs, given the several assaults he has suffered and the clear involvement of gang members in these offences.

As early as 2015 he was unemployed and not going to school and he apparently told his doctor that he was living the “gang life.” His doctor noted another emergency visit July 5, 2016 when he was assaulted while riding his bicycle. [ 22 ] He has also likely under-reported his alcohol and drug use. [ 23 ] Since Mr. Stove has been in remand custody, he has been involved in the Thinking Awareness Group (TAG) and the Coming to Terms (CTT) program. The reports from the programs were filed as evidence in the sentencing. They are detailed and extremely positive. In February Mr.

Stove was considered to be in the contemplative stage of change. By March, he was engaged in the preparation and action stage of change. The Law of Sentencing Gun Offences [ 24 ] Gun crime is rampant and dangerous in Canada, and Parliament has responded with tough sanctions, including mandatory minimum sentences for some offences. The mandatory minimum three-year sentence for carrying a loaded, prohibited firearm (

section 95 of the Criminal Code ) was struck down by the Supreme Court in the case of R. v. Nur , 2015 SCC 15 . The Court found the

section to be unconstitutional because it captured not only those who possessed guns for criminal reasons, but also those law abiding citizens who may have stored the unloaded firearm safely with ammunition nearby. While it struck down the mandatory minimum, the Supreme Court did not depart from the law’s position that serious sentences are warranted where the gun offences demonstrate criminal behaviour.

Thus, even in that case, where Nur was only 19 years of age, did not have a criminal record, and did not threaten anyone with the loaded handgun, the Supreme Court upheld his sentence of 40 months. [ 25 ] The law recognizes a range of gun offences, with those that resemble regulatory infractions at one end of the scale, to true criminal offences at the other end of the scale. The offences committed by Mr. Stove are at the true criminal offences end of the scale. [ 26 ] Chief Justice McLachlin stated trenchantly in the first paragraph of Nur : Gun-related crime poses grave danger to Canadians.

Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code , R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws. [ 27 ] The maximum sentences are harsh; possessing a weapon in a vehicle carries a maximum 10-year sentence, like

section 95 of the Criminal Code . [ 28 ] Because Mr. Stove’s offences are essentially identical to the elements of the offence of

section 95 , that is, possession of a loaded, prohibited firearm (the sawed- off 22 rifle), and carrying that rifle and the loaded assault rifle in a taxi cab (where the maximum sentence is also 10 years), the appropriate comparable case-law is sentencing law where offenders were sentenced for

section 95 offences. [ 29 ]

Section 95 was added to the Criminal Code on December 1, 1998 in response to what had been described by Justice Doherty of the Ontario Court of Appeal, as “a serious and growing societal danger” of serious injury and death from gun violence (quoted with approval in R. v. Clayton , 2007 SCC 32 at para. 108 ). [ 30 ] In these cases, denunciation and deterrence are paramount. The mitigating factors personal to Mr. Stove by necessity take a less significant role.

The objective of paramountcy is reflected in Nur where the 19-year-old first-time offender with a glowing pre- sentence report and overwhelming community support was sentenced to a significant penitentiary sentence. Similarly, in R. v. Guha, 2012 BCCA 423 the sentence for a first-time 27-year-old offender was increased on appeal from three years to four years. [ 31 ] As Justice Dickson for the British Columbia Court of Appeal stated in R. v. Kachuol , 2017 BCCA 292 at paragraphs 25 to 26 :

In recent years, Canadian courts have become increasingly concerned by the proliferation of handguns, gun violence and the dire consequences for our society. Guns are inherently, often lethally, dangerous, all the more so when they are possessed for an illicit purpose. As a result, their possession and use is highly regulated and, if unlawful, criminalized to ensure public safety, express society's condemnation and punish offenders.

To the extent possible, courts strive to achieve these goals when imposing sentences for firearms- related offences by prioritizing deterrence and denunciation, following customary sentencing ranges in all but exceptional cases and fully accounting for aggravating factors where they exist. As Madam Justice Smith recognised in Guha at para. 30 , when an offender possesses a firearm, particularly a handgun, for an illicit purpose, that purpose can only be to threaten or inflict serious bodily harm or death, if and when considered necessary.

Common sense and human experience suggest no other reasonable explanation or lesser risk posed by possession of this sort. As Crown counsel aptly put it, most unlawful possession of loaded firearms represents nothing short of "tragedy in gestation". By criminalizing such conduct via s. 95(1), the law intervenes before someone is actually harmed or some other crime actually committed. By imposing severe exemplary sentences for possession simpliciter , courts support and advance the goals of this intervention. [ 32 ] The Crown filed several cases involving sentencing for

section 95 firearms offences. It is important to emphasize that these are all appellate law, that the sentences involved were three years or more and that none of them involved criminal behaviour and circumstances as serious as those present in Mr. Stove’s case. A further examination of those cases is warranted, as one of the principles of sentencing is parity – that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Parity in Sentencing [ 33 ] As I indicated at the outset, the Crown is seeking a sentence of four years. [ 34 ] The case of Nur involved a similar offence and a similar offender, although Mr. Stove’s offence has more aggravating features. In Nur , a man ran into a community centre in a high crime area of Toronto, where gun violence was a serious problem. He told staff in the community centre he was afraid of someone outside waiting for him. Staff put the community centre on lockdown and called police who arrived moments later. Police saw four men standing outside the community centre, who scattered.

Police were able to apprehend Nur after seeing him throw a loaded, 22 calibre semi-automatic firearm under a car. Nur was charged with possession of a loaded prohibited firearm contrary to section 95(1) of the Criminal Code which at the time carried a minimum three year sentence. The Supreme Court struck down the mandatory minimum on the basis that it could capture behaviour closer to the regulatory end of the scale of gun offences. The Court found that Nur ’s behaviour however, was on the criminal end of the scale, notwithstanding that he had not been involved in any threatening behaviour.

Both the Ontario Court of Appeal and the Supreme Court of Canada upheld the 40 month sentence. Nur was 19 years old at the time of the offence, from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was going to high school. He was doing well in school and planned to go to university. He worked at a number of part-time jobs and volunteered in the community. Teachers and past employers praised his performance and potential.

One teacher described him as “an exceptional student and athlete who excelled in the classroom and on the basketball court . . . an incredible youth with unlimited academic and great leadership skills.” [ 35 ] In R. v. Kennedy , 2016 MBCA 5 , the offender was 54 years old and treated as a first time offender. Police were called when he was breaching an order to have no contact with his neighbour. He was found to have two loaded handguns in his pockets in the “ready to fire” position. More firearms, some of them loaded, were found in his trailer.

The Crown sought a four to five year sentence; the sentencing judge imposed a global, 18-month sentence. The Manitoba Court of Appeal adopted the approach taken by Nur as well as case law subsequent to Nur (at paras. 41 – 43 and paras. 53 – 59). Justice Hamilton stated, “The important observation is that these cases emphasize that deterrence and denunciation were the predominant sentencing principles for a

section 95 offence, where significant jail terms were imposed.” Mr. Kennedy’s sentence was increased to three years, even though there was no threatening behaviour nor did he use the guns in any criminal activity. [ 36 ] In R. v. Holt , 2015 BCCA 302 , referenced by Justice Hamilton in Kennedy , the 66-year-old first-time offender was pulled over by police for a driving infraction. He had a female passenger. He had been drinking and smoking crack cocaine that night and was arrested for possession of drugs. A search incidental to arrest yielded a loaded 22 revolver and a box of 43 cartridges in his backpack. Mr.

Holt lived on the margins of society, associating with drug addicts and sex trade workers, but had no gang affiliations, nor did he participate in any criminal activity other than his own illegal drug use. The 18-month sentence originally imposed was found to be unfit by the British Columbia Court of Appeal, and a sentence of 30 months was substituted. [ 37 ] In R. v. Kachuol , 2017 BCCA 292 , the Crown appealed from a two years less a day conditional sentence order.

The offender was pulled over for an impaired driving investigation in downtown Vancouver and police found a loaded, prohibited handgun in the center console of his car. The offender was 23 years of age and had a previous drug conviction for trafficking marijuana for which he received a suspended sentence, 12 months of probation, community service and a lifetime firearms prohibition. There were many positive letters of support filed.

Between the time of the offence and sentencing, he suffered a traumatic head injury and needed to use a cane, and was in physical therapy to strengthen his arms and legs at the time of sentencing. He was also receiving counselling from a social worker, working towards his grade 12, playing saxophone and had employment lined up. Despite his positive personal attributes, the Court of Appeal could not justify a sentence below the “criminal range” established in Nur and other cases.

The Court substituted a sentence of three years, in light of the truly criminal behaviour involved in the case, citing the loaded prohibited handgun being in a moving car, strategically placed for easy access, entirely outside a regulatory situation, the consumption of alcohol, the urban setting and the gun being a “crime gun” (.357 Magnum). [ 38 ] In R. v. Guha , 2012 BCCA 423 the Crown appealed the three-year sentence. The offender was pulled over for driving without a licence plate and not wearing his seatbelt in a residential area adjacent to a school, playground and several businesses. Construction

workers and joggers were present in the area. He had a semi-automatic handgun tucked into the waistband of his pants. He was 27 years old. He had previously, in 2007, been convicted of trafficking marijuana for which he had received a community-based sentence. He was on bail for possession of drugs at the time of the firearms offence. He lived with his parents and worked as a freelance graphic designer at the time of sentencing and volunteered from 2007 to 2010 with high risk youth.

He received a glowing letter of reference from the government department employer who stated they would not hesitate to re-employ him. The Court of Appeal found the three year sentence unfit and substituted a global sentence of four years on the firearms offences. [ 39 ] Nur is the benchmark for sentencing firearms offences. Nur and the cases decided subsequent to it following its approach are the relevant cases to be used when considering parity. The cases filed by defence pre-date Nur and do not emphasize the current state of sentencing law with respect to firearms offences.

Therefore, they are not helpful in determining sentence. [ 40 ] It is apparent that none of the behaviour in the cases above reaches the level of criminality as Mr.

Stove’s did: - pointing a loaded, semi-automatic assault rifle, unprovoked, at a man who opened his door in response to knocking at 7:00 a.m.; - being with a co-accused who was a gang member; - threatening to blow the windows out; - the co-accused throwing a shovel through the window, “blowing the window out”; - running through the residential neighbourhood with loaded guns; - hiding loaded guns beside a dumpster by a 7-11, a busy convenience store; - retrieving the loaded guns and travelling in a cab with them; - taking the guns to a crack house full of people; - putting one of the guns in plain view in an unsecured garage where it could be seen through the window; - apparently handling the guns at the behest of gang members, because he did not have a criminal record. [ 41 ] Those circumstances, and the need to denounce increasing gun violence in one of the high crime areas of Winnipeg, suggests a sentence lengthier than the three to four years imposed in Nur and these other cases. [ 42 ] I also take into account Mr.

Stove’s Indigenous background and other mitigating circumstances however. Proportionality, Sentencing Objectives, Concurrent or Consecutive [ 43 ] I have already outlined the seriousness of these offences. They were extremely dangerous, high-risk actions that could have led to one or more deaths or injury. As for Mr. Stove’s moral culpability in committing these offences, I am satisfied that his moral culpability is attenuated by his Indigenous roots. The Supreme Court of Canada has directed that judges are to take judicial notice of the legacy of colonialism and residential schooling. Mr.

Stove grew up in a home where he was well taken care of, loved and properly educated in his culture and the larger culture. At the same time however, he is an Indigenous person who has been affected by this troubled legacy. And so, he was born to a very young teen mother who was plagued by drugs. And so, he did not learn that his parents were not his biological parents until he was 11 or 12 years old. He saw alcohol. He was lured by gangs. He has been assaulted several times, once very seriously. He graduated from high school, but then drifted away from post-secondary schooling and steady employment.

He is most definitely affected by the legacy of colonialism and residential schools. In Winnipeg this is particularly difficult and even more so in the North End, which has been Mr. Stove’s home. He was lured by gangs to do their dirty work because he does not have a criminal record. It is classic. [ 44 ] I also take into consideration his guilty plea, but in the context of a very strong Crown case against him on the possess weapon and possess weapon in a vehicle charges. The Crown case against him on the point firearm charge was weak without his admission to the police.

It is also mitigating that his confession and cooperation led to assisting the police in solving outstanding crimes. [ 45 ] I must consider whether the sentences should be concurrent or consecutive. I have relied on the Court of Appeal’s discussion and analysis with respect to sentencing seemingly-related offences in R. v. Wozney , 2010 MBCA 115 . I am satisfied that the sentences for these firearms offences should be concurrent. They occurred as part of one transaction in the early morning of November 5, 2016 when Mr.

Stove knocked at the victim’s door and then pointed the loaded assault rifle at him, ran armed through the North End to the 7- 11, hid guns and retrieved them from beside a 7-11, then got in a cab and transported two loaded rifles to a crack house. As Justice Chartier stated in R. v.

Arbuthnot , 2009 MBCA 106 : In my view, in light of the fact that there were a series of similar, continuous and recurring offences with the same gravamen within a sustained and relatively short period of time, the accused’s offending conduct with respect to the robbery offences can be viewed as sufficiently interconnected to form a single criminal transaction or crime spree and thereby attract concurrent sentences. (At para. 24) [ 46 ] The primary objectives are denunciation and deterrence.

Gang members and naïve followers are put on notice that having a stooge carry their firearms will nonetheless result in a penitentiary sentence commensurate with stiff sentencing jurisprudence in gun cases. Law-abiding adults and children of the North End of Winnipeg are sent a message that the Court denounces carrying guns in their community. They should feel safe in their homes and walking their streets with their children and not be afraid that people like Mr.

Stove are banging on doors, pointing loaded crime guns and running around and taking cabs throughout their neighbourhood with loaded firearms. [ 47 ] However, Mr. Stove’s youth, his positive antecedents, his supportive family and his work while in jail suggests that there is

hope. I do not want to crush that hope by imposing a sentence that exceeds what is just and appropriate and does not punish him more than is necessary ( R. v. Nasogaluak , 2010 SCC 6 at para. 42 ). Sentence [ 48 ] An appropriate sentence for the point firearm would be three years, for the possession of the prohibited firearm in a vehicle four years and for possession of the prohibited firearm four years. These sentences will be concurrent. But for Mr. Stove’s Indigenous background, a total sentence of four years would be insufficient, given the seriousness of the conduct and the circumstances.

However, none of the cases setting out the sentences for serious firearms offences, such as Nur and so on, involved an Indigenous offender. Taking his Indigenous background into account, which impacts his moral culpability, the global sentence of four years is appropriate. [ 49 ] The sentence will be reduced by the time he has spent in custody. He has been in custody since December 28, 2017, a period of over seven months, or 238 days. Crediting his time in custody at a rate of time and a half, amounts to almost one year, or 357 days. He will be credited for having spent one year in custody.

His sentence going forward is three years. [ 50 ] The following ancillary orders are made: -

Section 109 lifetime weapons prohibition; -

Section 487.051(1) DNA order on all three offences which are secondary designated offences; and - Forfeiture of the firearms and ammunition seized. [ 51 ] The victim surcharge of $600.00 is payable forthwith. Default is noted. It will run concurrent to his sentence. “Original signed by:” DEVINE, P.J.