r v. Reilly, 2022 QCCQ 8120

R. c. Brault 2022 QCCQ 8120 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division N o : 500-01-225121-216 500-01-225122-214 500-01-225123-212 DATE: November 3, 2022 ______________________________________________________________________ BY THE HONOURABLE PIERRE E. LABELLE, J.C.Q. ____________________________________________________________________________ His Majesty the King Prosecutor v.

Reilly BRAULT Offender ______________________________________________________________________ DECISION ON SENTENCE ______________________________________________________________________ OVERVIEW [ 1 ] Reilly Brault, the offender, was found in possession of a loaded handgun. He was at the time forbidden by a Court order to possess such an item and was also in breach of a condition set in a release order. [ 2 ] He plead guilty in July of this year, the observations on sentence were put before me in October.

THE FACTS [ 3 ] Police officers executed a search warrant in relation to an unrelated investigation, targeting an unnamed individual. During the search, the found the offender, sound asleep, with a loaded handgun by his side. Further to the illegal possession of the weapon, the offender was also breaching Court imposed orders and conditions. THE EVIDENCE The offender [ 4 ] He testified that a few months prior to being arrested, while walking in the downtown area of the city of Montreal, he was attacked and stabbed, which severely injured him.

According to his testimony, he almost lost his life, spent 2 weeks in the hospital. He now as a painful scar in the abdomen area. The attack left him fearful. It is because of this incident that he armed himself. He stated that he was ready to defend himself. He knew the gun was loaded, for the simple reason that he loaded it himself. [ 5 ] He could not or would not remember where he got the handgun or from whom. He does not remember either the price he paid. He states that at the time of his arrest, he was not dealing drugs.

This last assertion seems to be supported by the fact that when arrested, other than the handgun, police officers seized nothing else. [ 6 ] The offender also explained the difficult conditions of his incarceration. He states that almost on a daily basis there are lockdowns that last 23 hours. There is no access to the outside yard, or to the showers, making it close to impossible to maintain personal hygiene. He asks for an enhanced credit for the very difficult conditions he endured. Further, he was transferred between detentions centers on 5 separate occasions, including a stay at the prison in Gatineau.

THE APPLICABLE PRINCIPLES

[ 7 ] Any decision regarding the determination of a just sentence needs to take into account the objectives and principles set out in ss. 718 to 718.3 of the Criminal Code . Thus, the Court must assess and balance the objectives of denunciation and deterrence. It must also decide whether the accused’s detention is necessary, consider rehabilitation, possible reparations, and finally, promote a sense of responsibility.

The sentence needs to correspond to the criminal responsibility of the accused and should, where possible, be similar to other sentences in similar matters. [ 8 ] The aggravating and mitigating factors should also be considered to help the Court assess where, in the sentencing range, it should fall. This range will be decided later. Sentencing ranges help guide the courts, but are not binding. It is possible, where applicable, to sentence an accused outside of the pre-established range, either with a higher or a lower sentence [1] .

If this exercise takes into account all of the principles, objectives, and factors, and determines their relative importance, this should lead the Court to impose a just, individualized, and proportionate sentence. THE SITUATION OF THE OFFENDER [ 9 ] The information provided is scarce. He is very young, he was born in 2001. He as a prior record, both as a youth and as an adult. He was sentenced to 7 months in jail, earlier this year, for drug related offences. [ 10 ] As stated before, he was, prior to his arrest, the victim of violent attack and was severely wounded.

Finally, he assumes that he will go live with his mother when he gets out of detention. THE PROPOSITIONS OF THE PARTIES [ 11 ] The prosecution askes for a period of detention of 30 months for the firearm and a further six months for the s. 117 C.cr. breach. This proposition is based on the application of the facts to the principles found in Nur of our Supreme Court [2] .

The offender, according to the prosecution, lands in between the first and second category, which is why the proposition is not for a full 36 month period of incarceration [3] . [ 12 ] The defence is of the opinion that the offender falls rather on the second category listed in Nur . Also the young age of M. Brault, needs to be taken into consideration. Therefore a non-penitentiary jail term would be appropriate [4] . THE FACTORS [ 13 ] The mitigating factors are the following: The guilty pleas.

Considering the current situation in our district, more specifically the lack of sufficient resources allotted by the authorities for the criminal system to function properly, guilty pleas must be given their proper weight considering the court time that was saved; The young age of the offender. [ 14 ] The aggravating factors are the following: The prior record; The gun was loaded; The mention that it was for self-protection; [ 15 ] I will include a neutral factor.

While the prosecution did not mention it as an aggravating factor, it alluded to that surge of gun related incidents in the past months within the City of Montreal. Here, no evidence was lead to support that mention, as it is sometimes the case in other sentencing hearings. While I have sat on a substantial number of long term bail hearings involving the possession of hand guns in the past year, and witnessed a significant increase, this factor cannot, without substantiated evidence, be determinative in the process [5] .

DISCUSSION [ 16 ] Any time a person appears before the Court and is found guilty of possession of a hand gun, he will, more likely than not, receive a harsh sentence [6] . That’s because a handgun as but one purpose, to kill people. It is easily concealed, it is powerful and contains a large number of bullets, increasing the dangerousness. Handguns usually work in a semi-automatic manner, which means the person shooting only has to pull the trigger in order to empty the magazine.

It is a highly effective killing machine [7] . [ 17 ] I believe that the propositions of the parties come within the sentencing ranges for this type of offence. Taking into consideration the reason of the possession of the handgun, and where it was found, I believe that the offender falls just short of the first category of Nur , thus a sentence starting at 3 years of detention [8] . I say just short, because of where the gun was found.

The offender was not arrested on the street with the weapon, but with the stated reason for its possession, one could hardly believe that he would go without it when he stepped out of the apartment.

While the possession of such a weapon in the context of a criminal activity as an aggravating factor, the absence of such evidence does not become a mitigating factor [9] . [ 18 ] The age of the offender is a factor to be considered, so is the decision to plead guilty, even if the evidence appears to be overwhelming. [ 19 ] The mitigating factors cannot bring the sentence to be imposed at the level proposed by defence counsel. It would not be an appropriate statement considering the dangerousness of possessing a hand gun.

The sentence needs to reflect society’s complete disapproval regarding this type of criminality, therefore a term of imprisonment in a penitentiary is required.

[ 20 ] The offender testified regarding the very difficult conditions of his detention and asks that a further period of credit be given. While I am of the opinion that there cannot be an enhanced credit of more than what is specified in the Criminal Code [10] , I understand that this can be taken into account when determining the appropriate sentence [11] . During the period of detention, the offender received a 7 month sentence, this time period cannot be considered while determining the time to be credited.

Counsel for the offender, specified that the period to be considered started on March 24, 2022 and up to today. This gives us a period of 224 days, or 7 months and 10 days, which I will round out to 8 months. Increased with the applicable ratio, the total period is of 12 months. [ 21 ] I come to the conclusion that the conditions endured by the offender while in detention, should warrant a further 2 months period to be subtracted. Therefore, a total period of 14 months will be deducted from the sentence.

CONCLUSIONS THEREFORE, THE COURT: SENTENCES the offender, in file 500-01-225121-216, to a term of 24 months of detention on count 1. A term of 12 months detention is imposed on count 2. These terms will be served concurrently; SENTENCES the offender, in file 500-01-225122-214, on count 1, to a term of 3 months of detention, it will be served concurrently to any other sentence; SENTENCES the offender, in file 500-01-225123-212, to a term of 6 months of detention, to be served consecutively to the sentence imposed in file 500-01-225121-216.

Therefore, the total is of 30 months of detention; DEDUCTS from the sentence of 30 months a 14 month period.

Therefore, the offender will spend 16 months in detention from today; WAIVES the payment of the applicable victim surcharge and costs; PROHIBITS the offender from possessing the items mentioned in s. 109 of the Criminal Code , for life; ORDERS the offender to submit to the procedure set out in s. 487.051 of the Criminal Code and furnish as many bodily samples as necessary so to constitute a DNA analysis, these samples will have to be given within the next seven days. __________________________________ Pierre E. Labelle, j.c.Q.

Me Paul Rouillard On behalf of the Prosecutor His Majesty the King Me Annie Boisvert-Laviolette On behalf of the offender Dates of hearing: July 18, September 12th, October 12th and November 3 rd 2022