R. v. Campbell, 2021 MBPC 59

CITATION: R. v. Campbell, 2021 MBPC 59 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Adam Bergen ) for the Crown - and – ) ) Paul Lee Campbell ) Tara Walker ) for the Accused ) ) Reasons delivered: ) December 13, 2021 C. Carlson, P.J. INTRODUCTION [ 1 ] Paul Campbell was convicted after trial of 13 charges. The charges all arose from a series of incidents that took place on June 11, 2020, at suite 2-431 Flora Avenue, in Winnipeg, Manitoba. [ 2 ] The most serious offences happened when Mr. Campbell discharged a firearm with intent to endanger the life of Terrence Sinclair, and Mr.

Sinclair was injured when a bullet from that firearm entered his forehead and lodged in his skull. Mr. Sinclair was rushed to hospital after 911 was called. Mr. Sinclair had surgery. Fortunately, and rather miraculously, Mr. Sinclair survived. Mr. Campbell committed some other offences preceding the shooting. [ 3 ] The trial of this matter took place on May 6, 11, 17 and 19, and June 16, 2021. Closing submissions were made on July 5 and I gave my decision on July 8, 2021.

A Pre-Sentence Report, with a Gladue component was ordered. [ 4 ] Sentencing submissions were made on October 27, 2021. [ 5 ] This is my decision as to sentence for Mr. Campbell.

SUMMARY OF FACTUAL FINDINGS AND CONVICTIONS The factual findings [ 6 ] My detailed findings were set out in the trial decision. [ 7 ] In short, I found that in the late hours of June 10, and into the morning hours of June 11, 2020 Mr. Campbell attended a gathering at the residence of the victim, Terrence Sinclair, located at 2-431 Flora Avenue. Also present were Mr. Sinclair’s sister, Kiona Sinclair, and two other females, Ms. Francois and Ms. Charlette. Other persons had come and gone throughout the night. When Mr. Campbell attended the suite, both Ms. Sinclair and Ms. Francois saw him with a gun.

During the night, Mr. Campbell left the suite and returned two or three times. At some point, there was an altercation, during which another male took the gun from Mr. Campbell and removed the clip, and Ms. Sinclair then took the gun. Mr. Campbell reacted by grabbing a knife and threatening to stab people, including Ms. Sinclair. Mr. Campbell told Ms. Sinclair and Ms. Francois, while they were inside the suite with him and others, that he would “shoot the place up”. When the only people left in the suite were Ms. Sinclair, Ms. Francois, and Mr. Sinclair and Ms. Charlette who were in the bedroom together, Mr.

Campbell reattended the suite, went into the bedroom where Mr. Sinclair and Ms. Charlette were, had some argument with Mr. Sinclair, seemingly about drugs, and discharged a firearm at Mr. Sinclair, such that a bullet hit Mr. Sinclair in the forehead. There was no admissible evidence of eyewitnesses to the shooting, or of Mr. Sinclair, but based on the circumstantial evidence, provided by witnesses, and forensic evidence tendered, I found the evidence was consistent with no reasonable alternative other than that Mr. Campbell was the person who discharged the firearm. Mr. Sinclair was rushed to hospital.

Surgery was performed, and part of Mr. Sinclair’s skull was removed. He was discharged on June 24, 2020. Mr. Campbell was arrested shortly after the incident. The firearm was never found. The convictions [ 8 ] Based on those findings, I convicted Mr. Campbell of the following offences, which may be grouped into four categories: • First – the “shooting offences”, specifically discharging a firearm with intent to endanger the life of Mr. Sinclair; aggravated assault on Mr. Sinclair by shooting him; assault with a weapon by shooting Mr.

Sinclair; and two counts of using a firearm in the commission of an indictable offence, namely in committing the aggravated assault and the assault with a weapon. These offences are

set out at counts 1, 5, 12, 15 and 16 of the Information. These five convictions result from my finding that Mr. Campbell possessed afirearm, shot Mr. Sinclair, having the requisite intent, and caused injury to Mr. Sinclair. • Second – the “personal threat offences”, specifically uttering a threat to Ms. Sinclair, and possession of a weapon (a knife) for apurpose dangerous to the public peace. These offences are set out at counts 8 and 9 of the Information. Both of these convictions resultfrom my finding that when Ms. Sinclair took Mr. Campbell’s firearm, Mr. Campbell grabbed a knife and threatened to stab Ms.

Sinclair. • Third – the “property threat offences”, specifically, threatening to damage real property, and use of a firearm in commission of thatoffence. These offences are set out at counts 14 and 17 of the Information. Both of these convictions result from my finding that Mr.Campbell threatened, while in possession of a firearm, and in the presence of both Ms. Sinclair and Ms.

Francois, and while in the suite,that he would “shoot up the place”. • Fourth – the “possession of firearms offences”, specifically, possession of a weapon (a firearm) for a dangerous purpose; carrying aconcealed weapon (a firearm); careless use of firearm; and having possession of a firearm without having the requisite authorization topossess it. These offences are set out at counts 2, 3, 4 and 10 of the Information. At count 10, Mr. Campbell was convicted of what thecourt found to be the lesser and included s. 91 offence, instead of the charged s. 92 offence.

These all result from my findings that Mr.Campbell had possession of, and concealed at least for some of the time, a firearm that he had no authorization to have. Judicial stays of proceedings of some matters [9] Crown counsel invited me to enter judicial stays of proceedings as to several matters based on the principle set out by theSupreme Court of Canada in R. v. Kineapple , .

That is, where an offender is found guilty of two or more offences, andthe convictions stem from the same misconduct, then a conditional stay of proceedings should be ordered on the less serious charge(s). [10] Applying the Kineapple principle, it is ordered that assault with weapon (count 12 of the Information) is stayed, as it is basedon the same transaction as the aggravated assault. [11] There were three convictions for using a firearm in the commission of an indictable offence, charged under s. 85(1)(

a) CriminalCode, (counts 15,16 and 17 of the Information). Crown counsel advised that in the circumstances of this case, the Crown is not seekingthat sentences be imposed for any of the three s. 85 offences. Those counts are stayed. [12] It is important to note that the aggravated assault is not stayed and is not subsumed in the more serious offence of discharge offirearm. Although both offences involved the same transaction, the aggravated assault offence involves an actual wounding, whereas thedischarge of firearm offence requires only an intent to wound. Convictions for both of those offences remain.

THE ISSUE [13] The ultimate issue to be decided is what sentences are to be imposed on Mr.

Campbell for the offences of which he has beenconvicted. [14] That ultimate decision requires determination as to the appropriate length of sentence for each offence; whether some or all ofthe sentences should be consecutive or concurrent; if consecutive, what, if any reduction there should be for totality; and whether Mr.Campbell should receive enhanced credit for his time in custody. [15] Although there are areas of agreement as to certain individual sentences, there is not an overall joint recommendation, as thereare areas of disagreement. [16] Crown and defence counsel make the same recommendations as to the appropriate length of the sentences for the two mostserious matters, that is the “shooting” offences, and as to the length of sentence for the possession of weapon (a knife) for a dangerouspurpose.

However, they take different positions as to the length of the other sentences, and as to whether sentences for certain of theoffences should be consecutive or concurrent. Those differences in positions make for different positions as to proposed total effectivesentences. [17] The Crown’s position is as follows, for a total recommended sentence equal to 10.5 years imprisonment: • Discharge firearm with intent – seven years; • Aggravated assault – six years concurrent to the discharge firearm with intent; • Utter threat to Ms.

Sinclair – six months consecutive; • Possess weapon for dangerous purpose (the knife) – three months concurrent to the utter threat to Ms. Sinclair; • Unauthorized possession of firearm without a license – two years consecutive; • The other three possession offences relative to the firearm – possession of weapon for dangerous purpose; carry concealed weapon;and careless use of firearm – 18 months concurrent to each other and concurrent to unauthorized possession of firearm without a license;and • Uttering threat to property -12 months consecutive.

[ 18 ] The Crown alternatively says that if I am not inclined to accept that the sentences recommended to be consecutive, should in fact, be consecutive, and concurrent sentences are imposed, then the total sentence must be higher than simply the seven years for the most serious offence, in order to be an overall proportionate sentence, and to avoid Mr. Campbell getting a “free ride” on other of the offences. [ 19 ] Mr.

Campbell’s position is that all of the sentences should be concurrent to a seven year sentence for the most serious offence, discharging a firearm with intent. [ 20 ] Specifically, the sentences proposed by Mr. Campbell, all concurrent to each other, are: • Discharge firearm with intent – seven years; • Aggravated assault – six years; • Utter threat to Ms.

Sinclair– three months; • Possess weapon for dangerous purpose (the knife) – three months; • Possession offences relative to the firearm – possession of weapon for dangerous purpose; carry concealed weapon; careless use of firearm - 12 months; • Unauthorized possession of firearm without a license – 12 months; and • Uttering threat to property – six months. CIRCUMSTANCES OF THE OFFENDER [ 21 ] As to Mr. Campbell’s personal circumstances, a Pre-Sentence and Gladue Report (the “PSR”) was prepared by probation officer Chantal Deakin on August 12, 2021. That report was entered as an exhibit at the sentencing hearing.

Defence counsel provided further information about Mr. Campbell. [ 22 ] Mr. Campbell is a 23 year old Indigenous man. He was born in Yorkton, Saskatchewan. He has a total of 12 siblings and half siblings. His early childhood was spent in Pine Creek First Nation, being raised primarily by his father. His parents separated when he was about eight years old, due to his mother’s drinking and domestic violence between his parents. His mother, Ms. McKelvey, was rarely in his life, due to her drinking. Ms. McKelvey told the writer of the PSR that Mr.

Campbell was exposed to domestic violence she endured at the hands of his father. [ 23 ] Mr. Campbell lived briefly with his paternal grandmother and then lived with his father and stepmother in Winnipeg. His father and stepmother regularly consumed alcohol and his father abused crack. Mr. Campbell reports being physically disciplined. His paternal grandmother died when he was 11 and his father died from leukemia when he was 12. His stepmother placed him in the care of Child and Family Services (“CFS”) at that time and he remained in CFS care until he turned 18. Mr.

Campbell described his childhood to the writer of the PSR as “toxic” and “unstable”. He re-established some contact with his mother when he was 16. [ 24 ] While in CFS care, he was placed in a number of group homes. In those group homes he was introduced to a negative peer group and drugs. After he left CFS care, he lived with his paternal grandmother for one or two years. He then lived with two of his sisters, and then lived with a girlfriend. Mr. Campbell says he is now in a romantic relationship and has been for the last 18 months.

His girlfriend lives in British Columbia and he plans to live with her on his release. He says she has no criminal involvement and no substance problems. He has the support of his mother, sisters, a brother and his partner. The only one of those that the PSR author was able to speak to was his mother. [ 25 ] Ms. McKelvey described Mr. Campbell as being a violent person, which she believes, is as a result of being exposed to his father’s violence. She described a couple of incidents as examples. Mr. Campbell disputes these. His mother does say that she believes Mr. Campbell needs help to address his anger issues.

She notes that Mr. Campbell becomes a totally different person when under the influence of alcohol and that he is easily angered and violent. [ 26 ] Mr. Campbell’s father was Indigenous and his family was impacted by the residential school system. Familial patterns included alcoholism, violence and abuse. Mr. Campbell says that his paternal family taught him about Indigenous culture. [ 27 ] Mr. Campbell attained grade 10. He has had a minimal employment history. He has goals to complete high school while he is in custody and to seek employment on release. [ 28 ] He started drinking alcohol at age 15.

By 17, it was an issue and has continued to be a problem for him until he entered remand custody. He described drinking to the point of blacking out. He denied he becomes violent or aggressive while intoxicated (although the court notes that the current matters for which he is being sentenced took place when, by all accounts, Mr. Campbell was intoxicated). [ 29 ] He started using marijuana at 12 and cocaine at age 17. Cocaine use has been particularly problematic for Mr. Campbell, and he uses it with alcohol. Both of his parents had drug addictions.

He has never attended any substance abuse programming, and is open to treatment recommendations. He identifies substance use as his most significant need area to be addressed. [ 30 ] Mr. Campbell was assessed as a very high risk to reoffend. The PSR writer expressed serious concern about Mr. Campbell’s history of violent offending, the nature and severity of the offences now being sentenced by the court and his mother’s comments about a history of violent and anger issues. The PSR writer strongly recommends that Mr.

Campbell would benefit from doing extensive programming in custody before release to increase his ability to be safely supervised in the community. The PSR writer recommends that he do an anger management program in custody and become involved in a therapeutic substance use programming unit.

[31] Mr. Campbell has been in remand custody since June 11, 2020. He has completed several programs in custody. He hasreceived some warnings as to misbehavior and received alternative resolutions for physical altercations and flooding his cell. But overall,his custody case manager reported Mr. Campbell has had only minor issues and incidents during his remand custody. He has declinedopportunities to work on case plans and to work on cognitive behavioral therapy workbooks. [32] Mr. Campbell has a criminal record. He has convictions for weapons offences, assaults, property offences and breaches ofcourt orders.

Specifically, as a youth from 2014 to 2015, he had convictions for uttering threats, carrying a concealed weapon, a breachof undertaking and a mischief conviction. He received probation for the first three and community service work for the mischief. OnJanuary 1, 2016, he was sentenced for the first time as an adult, for an assault, and received the equivalent of four days custody andprobation, and for possession of property obtained by crime over $500, and was fined $350.

On September 21, 2018, he was convictedof another assault, mischief and breach of recognizance and received a concurrent sentence equal to 30 days jail, two breaches ofprobation for which he was fined, and uttering threats for which he was placed on probation.

On October 1, 2019, he was convicted oftwo breaches of probation for which he was sentenced to the equivalent of 41 days jail concurrent, a breach of recognizance for which hewas sentenced to 30 days, an attempt to obstruct justice, for which he was sentenced to the equivalent of 121 days jail, and possession ofa weapon for which he was credited for 90 days pre-sentence custody and one day. He was placed on the 12 month probation order hewas on at the time he committed the offences for which he is now being sentenced. SENTENCING OBJECTIVES AND PRINCIPLES [33]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute torespect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of theobjectives stated in that section, specifically denunciation, specific and general deterrence, rehabilitation, separation of offenders fromsociety to protect the public where necessary, reparation to victims or the community, and promotion of responsibility of offenders andacknowledgment of harm. [34]

Section 718.1 Criminal Code provides that the fundamental principle of sentencing is proportionality. A sentence must beproportionate to the gravity of the offences and the degree of responsibility of the offender. Gravity of the offences [35] Any offences committed involving the use of firearms are very serious, made more serious when a firearm is actuallydischarged.

Sentences for such offences must reflect the gravity of the danger to society of the use of firearms. [36] Aggravated assault and discharging a firearm with intent to wound, maim, disfigure or endanger the life of a person, eachcarries a maximum sentence of 14 years imprisonment (ss. 268(2) and 244(2) Criminal Code). The discharge firearm with intent offence,on the facts of this case, carries a mandatory minimum sentence of four years imprisonment (s. 244(2)(

b) Criminal Code). [37] In this case of course, not only was a firearm used and discharged. The bullet from the firearm actually hit the victim Mr.Sinclair, in the head, and caused injury, requiring surgery and removal of part of Mr. Sinclair’s skull. The extent of Mr. Sinclair’songoing impact from the injury is not known, except from his sister’s evidence at trial that he is “not the same”. [38] The other offences committed that evening by Mr. Campbell, while not as serious as the ones that put a bullet in Mr.

Sinclair’shead, involved him brandishing a weapon, a knife and a firearm, and making threats to persons and property. Those, in and ofthemselves, are serious, as they posed risk of physical danger to persons inside the suite. Moral culpability in committing the offences [39] Mr. Campbell was the sole offender, and is solely responsible. These offences were committed over hours, and offencesoccurred each time he returned to the suite. He kept coming back to the suite with a firearm, intimidating and threatening people, andthen shooting Mr. Sinclair.

There was no evidence of provocation by anyone, that he was under threat by anyone, or of any reason for theoffences that might mitigate them. His moral blameworthiness based on his actions, is high. [40] His personal circumstances suggest some tempering of moral blameworthiness. Mr. Campbell was 22 years old when hecommitted these offences. So while he was an adult, he was still young, and by his actions, demonstrably immature. He was intoxicatedby substances, and struggling with addiction at the time of the offences. [41] And, there are Gladue factors to be considered. [42] In R. v.

Ipeelee, 2012 SCC 13, Justice LeBel stated that application of s. 718.2(

e) Criminal Code requires a determination as tohow an Indigenous person’s background impacts an analysis of proportionality, at paragraph 73: First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness….Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack ofopportunities and limited options for positive development.

While this rarely – if ever-attains a level where one could properly say thattheir actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances maydiminish their moral culpability. [43] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, it was said at paragraph 67 that:

The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation. [ 44 ] Mr. Campbell’s father’s family, according to his mother, was impacted by the residential school system. The PSR confirms that Mr.

Campbell grew up in a familial atmosphere of violence, addiction and fragmentation, leading to his own involvement in the child protection system. He fell into his own addiction issues, unstable living situations, resulting criminal involvement and association with negative peers. It is not a stretch to link Mr. Campbell’s life circumstances, and at least to some extent, his commission of the offences for which he is now being sentenced, to impacts of colonization. [ 45 ] Mr. Campbell’s moral blameworthiness, while high based on his actions, is, overall, somewhat tempered by these factors.

The sentencing objectives to be addressed in this case [ 46 ] Rehabilitation is always a factor to consider on sentencing. Mr. Campbell is young, just 23 years old. He says he wants to take advantage of programming and educational resources in custody, and to be ready to make a fresh start, away from negative peers and clean of substances, when he is released. [ 47 ] But, when considering sentences for the offences committed by Mr.

Campbell, specifically sentences imposed for dangerous firearm related offences, the primary sentencing principles are denunciation, general deterrence, and protection of the public ( R. v. Morrisey , 2000 SCC 39 (S.C.C.), para 54 ; R. v. Brown , 2010 ONCA 745 , para 14 ; R. v. Bellissimo , 2009 ONCA 49 ). [ 48 ] Further, when denunciation and general deterrence are the paramount sentencing objectives, the focus on sentencing needs to be more on an offender’s conduct than his personal circumstances. Personal facts remain relevant, but are of lesser importance in determining the ultimate sentence ( R. v.

Nur , 2013 ONCA 677 (Ont. C.A.) at para 107 ; R. v. McMillan , 2016 MBCA 12 , para 12 .) [ 49 ] Mr. Campbell took a firearm, which he was not lawfully entitled to possess, out into the community, into someone else’s residence where there were a number of people, and used that firearm to shoot Mr. Sinclair in the head. The only way the court can contribute to people refraining from unlawfully possessing firearms and discharging firearms with intent to hurt people is by imposing very significant jail sentences. [ 50 ]

Section 718.2 Criminal Code provides that a court must consider mitigating and aggravating factors of the offender and the offence in sentencing. [ 51 ] As to mitigating factors, there are none, as to the offences. It should be noted in particular the fact Mr. Sinclair survived the shooting is not mitigating. That is just due to sheer luck and the quick and skilled efforts of emergency services and medical personnel. [ 52 ] There are several mitigating factors as to the offender, namely: • Mr.

Campbell is still a young man. • He is Indigenous and has Gladue factors. • He did, at the sentencing hearing, express remorse for the fact the victim, his friend, was hurt, and said he was sorry for the victim and his family. • According to the PSR, Mr.

Campbell recognizes his substance use is his biggest risk factor and he expresses willingness to engage in treatment. • In the PSR, he expresses a desire to leave behind his prior use of substances and negative peers, and endorses pro social goals – his relationship, education and employment. [ 53 ] These personal factors as previously mentioned, are not as impactful in determining sentence as the factors relative to the offending behavior. [ 54 ] There are many aggravating factors: • He was on a probation order at the time (for offences including possession of a weapon). • He has a related criminal record. • The offences took place in the victim’s residence where he was entitled to feel safe. • As to victim impact, the court has no information directly from Mr.

Sinclair as to how being shot in the head has impacted him. The court does not know how he is doing now, and what sort of long term effects, if any, he has sustained physically or mentally. Certainly, it can be acknowledged at least that being shot by his friend would have been a very traumatic event, and that there would have been significant pain due to the shooting itself and also the surgery and treatment that followed. During her evidence, Ms. Sinclair, the victim’s sister, testified that Mr.

Sinclair was not the same as he was before the shooting. • Certainly the others in the suite at the time of the shooting can be assumed to have been traumatized by Mr. Campbell’s actions. One was the victim’s sister. Another was Ms. Charlette, who was physically right there with Mr. Sinclair when he was shot, and was covered in his blood as a result of the shooting. • Mr. Campbell fled immediately after shooting Mr. Sinclair. He did not stay to assist Mr. Sinclair, nor even, as he ran out and away from the scene, did he alert the people outside the room to call 911.

• Kiona Sinclair who was the victim of the threat when Mr. Campbell was holding a knife, was under 18 years of age. This is statutorily aggravating as to those offences. THE APPROACH TO SENTENCING MULTIPLE OFFENCES AT THE SAME TIME [ 55 ] The correct way to sentence for multiple offences was set out in R. v.

K.(P.) , 2012 MBCA 69 at para 33 : “So, in the case of multiple offences we now ask sentencing judges to: 1) First determine whether any or all of the sentences are to be served concurrently or consecutively or a combination of both. 2) If treated as concurrent, then, although all circumstances of the offender and the offence must be taken into account in arriving at a sentence, the final sentence for multiple concurrent offences should, absent exceptional circumstances, be higher than the sentence that the judge would have awarded that offender for one count of that offence.

This has come to be known as the “no free ride principle.” 3) If treated as consecutive offences, after assigning a sentence to each offence, the judge must take one last look at the total cumulative length of the sentence with a view to determining whether the total sentence is so high as to be a “crushing punishment” on this offender. This is often referred to as the totality principle. It must be remembered that the totality principle considerations under s. 718.2 (

c) of the Criminal Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrent sentences, no such considerations arise. 4) If the judge is of the view that the overall sentence is too high, it is within their discretion to reduce the sentence by using a variety of techniques. One of those techniques is to make some of the multiple offences concurrent to each other. This use of the concurrency principle is for the sole purpose of reducing an excessive sentence as a result of that “last look”. Concurrent v. consecutive sentences [ 56 ]

Section 718.3(4) (b)(

i) Criminal Code provides that a court shall consider that the terms of imprisonment it imposes at the same time for more than one offence be served consecutively when the offences do not arise out of the same event or series of events. [ 57 ] The Manitoba Court of Appeal, in R. v.

Wozny , 2010 MBCA 115 set out the rule to be applied when multiple convictions arise from a set of circumstances, in terms of deciding which sentences should be consecutive and which should be concurrent, as follows at para 36: “…the general rule is that if the offences are sufficiently interrelated to form part of one single, continuous criminal transaction, a concurrent sentence is called for.

However, if the offences are separate and distinct, then a consecutive sentence to be imposed….” [ 58 ] That court also commented that the discretion of the sentencing judge to decide this is flexible and is a fact specific consideration. [ 59 ] Different courts have dealt with “possession of firearm” offences in different ways. Some have sentenced them concurrently (but for breaches of firearms prohibition orders which are nearly always sentenced consecutively) to “shooting” offences (for example, in R. v.

Maytwayashing , 2018 MBCA 36 though it is noted that the concurrent aspect of the sentences was not challenged on appeal; R. v. Dematas, 2020 ONSC 4419 (Ont. Superior Court of Justice); and R. v. Claros , 2019 ONCA 626 ). On the other hand, some have sentenced “possession of firearm” offences consecutively to “shooting” offences. This was the case in R. v. Smoke , 2014 MBQB 130 .

In Smoke , Justice Martin held that although all of the charges arose essentially from the same scenario on the same date and there was a nexus between the convictions, there was a subtlety in that the convictions for possession of a prohibited firearm were not exclusively linked to the shooting offences. The offender in Smoke possessed the weapon before the assault took place and not specifically for the purpose of the assault.

Justice Martin sentenced the shooting offences concurrently to each other but consecutively to the firearm possession offences. [ 60 ] Defence counsel points to a number of cases to argue for concurrent sentences. These are R. v. Keough 2021 ABCA 14 ; R. v. Ruth 2012 ABCA 168 ; R v KDH 2012 ABQB 471 ; and R. v. Healey 2016 NLPC 0115 A03378. Each of these cases dealt with different types of offences, and the courts found sufficient nexus between some of the offences to find sentences for them should be concurrent. None of those cases dealt with firearms offences.

The courts deciding each of those cases made determinations based on the specific facts as to how close the nexus was between certain offences. Those cases certainly set out applicable principles to consider, but do not help the court in this case, except to make clear that a determination as to whether sentences are concurrent or consecutive is a discretionary decision of the court based on the facts of the case, and the overall consideration, at the end of the day is that the principle of proportionality be respected. [ 61 ] All of the charges Mr.

Campbell is being sentenced for arose during the same night; were committed at, or going to or from, the same residence; most of the same people were present when the offences were committed; and the evidence suggests that the firearm Mr. Campbell was seen with near the time he first arrived is the same firearm seen later and ultimately the same firearm which he discharged aimed at Mr. Sinclair. There is certainly some nexus between the convictions.

But, there are some distinctions as to factual and legal nexus. [ 62 ] The discharge firearm with intent and aggravated assault are connected enough factually and legally that they should be sentenced concurrently. [ 63 ] The weapon that is the subject of the possession of the weapon dangerous to the public peace that was used to intimidate and threaten Kiona Sinclair, a knife, was different than the weapon used in other offences that night – the firearm. The victim was different. The incident when Mr. Campbell grabbed the knife and made the threat to Ms.

Sinclair was, though during the same night as the shooting, hours before, and was connected to a totally different set of facts – there was an altercation involving a male named Landon, Mr. Campbell’s gun was taken away and Ms. Sinclair took the gun – to try to get it back, Mr. Campbell grabbed a knife and threatened

Ms. Sinclair. This is a distinct incident. In my view, the utter threat and possession of the knife should be sentenced concurrently to eachother, but they should be sentenced separately from the discharge firearm and aggravated assault offences. [64] Similarly, the conviction for threat to property, while it happened during the same night and at the same residence as the otheroffences, is based on distinct facts. The threat was made at a time distinct from the other offences. It was made to different victims, Ms.Sinclair and Ms. Francois together. It was made in a different area of the residence.

It was of a different nature than the personal threat.It was to shoot up the residence, with the inference being clear that Mr. Campbell meant, regardless of the fact there were people insidethe residence. Making this threat was a separate decision made by Mr. Campbell. It requires a separate, and consecutive sentence. [65] Finally are the offences related to possessing a firearm- possession of a weapon (a firearm) for a dangerous purpose, carrying aconcealed weapon, unsafe use of firearm and having possession of a firearm without a license.

The evidence is consistent with Mr.Campbell not having a pre meditated plan to shoot Mr. Sinclair. It is more consistent with Mr. Campbell making a quick decision to usethe firearm he happened to have on his person, when he and Mr. Campbell had a disagreement. On the evidence, Mr. Campbellpossessed the firearm well before the shooting. The evidence is consistent with him taking it into a taxi with him en route to thegathering, keeping it tucked in his pants and concealed by his shirt at that time, and taking it out at the gathering to show people.

Mr.Campbell possessed the weapon before the shooting and not specifically for the purpose of shooting the victim. He also took the firearmwith him, back out into the community, when he ran from the scene after the shooting, and that firearm remained unlocated by police. Using the same approach as was used in the Smoke case, I find that those firearm offences should be sentenced consecutively to theassaultive and threat offences, but concurrent to each other. CONSIDERATION OF APPROPRIATE INDIVIDUAL SENTENCES: [66] Counsel provided some case law.

While each case is offender and offence specific, a consideration of what courts haveimposed as sentences in cases with similarities to this one can be helpful. The “shooting offences” (discharge of firearm with intent and aggravated assault) [67] The offences of discharging a firearm with intent to wound and aggravated assault both are subject to legislated maximumsentences of 14 years imprisonment. [68] Parliament has legislated a mandatory minimum sentence of four years imprisonment for discharging a firearm with intent (s.244(2)) Criminal Code. A mandatory minimum creates an “inflationary floor”.

Justice Arbour explained that term in R. v. Morrisey, (2000 SCC 39, para 75): “The mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishmentapplicable to the so-called “best” offender whose conduct is caught by these provisions. The mandatory minimum must not become thestandard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances.” [69] The case of R. v.

Bellissimo, 2009 ONCA 49 established a range of sentence for dangerous gun offences, at least in Ontario, asbeing between seven and 11 years imprisonment. The ONCA confirmed in R. v. Jefferson, 2014 ONCA 434, that that remained the rangeas of 2014. [70] There is no Manitoba Court of Appeal case that specifically adopts that range as appropriate in Manitoba, but the ManitobaCourt of Appeal has relatively recently imposed sentences for offences involving discharge of firearm which have been within that range(R. v. Maytwayashing, 2018 MBCA 36). Further, Justice Keyser of the Manitoba Court of Queen’s Bench, in R. v.

McIvor, 2020 MBQB117, at para 10, specifically referenced a seven to 11 year range as being considered appropriate in similar cases. McIvor involved areckless discharge of firearm into a residence. [71] Both Crown and defence accept the seven to 11 year range as appropriate for consideration in this case. In fact, both counselrecommend a seven year sentence be imposed on Mr. Campbell for the discharge firearm with intent, and six years for the aggravatedassault. [72] The mandatory minimum of four years is the inflationary floor for the discharge firearm with intent.

It would be reserved for afirst offender, or the “best offender”. That is not Mr. Campbell. He has a prior record, including offences of violence and with weapons. [73] The proposed seven and six years respectively are near the bottom of the range. Mr.

Campbell is young, was intoxicated andnow recognizes his substance abuse as a huge risk for him going forward and is willing to address it; there was injury of course thoughnot as significant as it could have been; there are significant Gladue factors which demonstrate a clear nexus between the impacts ofcolonialism and his parenting role models exhibiting violence and substance addiction, and filtering down to him. Further, importantlythis does not appear to be a situation in which Mr. Campbell came to the gathering with a pre-arranged plan to shoot Mr. Sinclair.

Thatfactor distinguishes the situation from those in which there was pre-planning. [74] Based on a review of the cases (including R. v. McIvor, 2020 MBQB 117; R. v. Dematas 2020 ONSC 419; R. v. Claros 2019ONCA 626 , 2019ONCA 626; R. v. Smoke 2014 MBQB 130; and R. v. Maytwayashing, 2018 MBCA 36), and Mr. Campbell’scircumstances, I concur with both counsel that the seven and six year sentences for discharging firearm with intent and aggravatedassault respectively, are fit and proportionate sentences.

The “personal threat” offences (utter threat to Kiona Sinclair and possession of weapon (knife) for dangerous purpose) [75] Mr. Campbell has two prior convictions for uttering threats, one as a youth and one as an adult. He received probation for eachof those. While uttering the threat to Ms. Sinclair, he was holding a knife that he had grabbed during an altercation. The victim, Ms.Sinclair, was a minor.

[76] As to the possession of a weapon for dangerous person, his most recent adult convictions in 2019 include a conviction for thesame offence. He was sentenced to the equivalent of 90 days and probation. [77] Jail sentences are appropriate for both of the “personal threat” offences. Given the “step up” principle, and there being noreasons sentences should not be higher for these offences than they were for the same offences before, the sentences should be higher. [78] The sentence for each of the two offences will be four months.

The “threat to property” offence [79] This offence is more serious than the personal threat made to Ms. Sinclair. Instead of holding a knife, when he threated to shootthe place up, Mr. Campbell was holding a firearm that both Ms. Sinclair and Ms. Francois could see. Ms. Francois testified that she hadalready heard one or two shots earlier in the evening, so it is reasonable that she would assume the gun was loaded, and that he may welldischarge further shots. Also, his inference was clear – he was threatening to shoot the place, without regard to the presence of peopleinside it.

Given his prior record for weapons, violence and mischief, a jail sentence of eight months is appropriate. The “possession” of firearm offences [80] The offences of possession of a weapon (a firearm) for a dangerous purpose, carrying a concealed weapon (a firearm), carelessuse of firearm and having possession of a firearm without having that authorization, all relate to the same firearm. Although the firearmwas not recovered, the evidence of witnesses at trial suggests it was the type of firearm that is used exclusively for criminal purposes.

Having such a weapon without any legal authority to possess it is the most serious of these four offences because it is the root of all suchoffences. And Mr. Campbell did not just have the firearm in Mr. Sinclair’s suite. Mr. Campbell had the firearm out in the community,before and after the incidents at the suite, and he had it in a taxi cab. The dangerousness of having a firearm like the kind Mr. Campbellhad, and having it out in the community, and then taking it back and forth between the suite and the community over a period of manyhours, cannot be understated. Mr.

Campbell has prior weapons related convictions (though there was no suggestion the weapons in thosematters were firearms). [81] The sentence for each of these offences is 12 months jail. TOTALITY [82] The sentences total nine years imprisonment. [83]

Section 718.2(

c) Criminal Code and the case law make it clear that when a court imposes consecutive sentences, it mustconsider the principle of totality. A last look must be taken to ensure the total sentence is a fit sentence and does not exceed the overallculpability of the offender. The MBCA recently confirmed this approach in R. v.

R.W., 2021 MBCA 7, namely that it is only after a trialjudge has determined a specific sentence for each offence, taking into account all relevant factors, including Gladue factors, that thejudge must take one last look at the overall sentence to ensure it is not unduly long or harsh, considering “the gravity of the offences, theoffender’s moral culpability, the harm done to the victims, that the effect of the sentence is not “crushing”, and that it is in keeping withhis record and future prospects” (R. v. Arbuthnot, 2009, MBCA 106, para 18). [84] Mr. Campbell is young.

He does have a record, including weapons offences. With significant efforts in rehabilitative programsand treatment, he may still turn things around. But, his prospects remain uncertain. [85] In my view, a total sentence equal to nine years in this case is a fit and proportionate one, and there will be no reduction fortotality. [86] I note that I have considered whether nine years would have been a fit sentence had I sentenced Mr. Campbell concurrently onall counts. I find that it would. I would have considered all the aggravating and mitigating factors, together and imposed nine yearsglobally.

PRE-SENTENCE CUSTODY [87] Both counsel agree that Mr. Campbell should be credited with his time in custody at enhanced credit of 1.5 to 1. Reasons forgiving enhanced credit for pre-sentence custody include that conditions in remand are often harsher than for sentenced prisoners, andthat such time is not considered in determining parole eligibility or early release entitlement (R. v Summers 2014 SCC 26 ,[2014] 1 S.C.R. 575). The decision as to enhanced credit is discretionary. Although the pre-sentence report reflected some in custodyincidents, overall there is no reason that Mr.

Campbell should not receive enhanced credit, and he will. [88] As of the date of sentencing submissions, October 27, 2021, he had spent 504 continuous days in custody. As of today’s date,on which sentence is imposed, his time in custody is 551 days. That is equal, at 1.5 credit, to 826.5 days. SENTENCES IMPOSED [89] In all the circumstances and balancing all the factors in this case, I have determined the appropriate sentences as alreadyindicated. [90] Mr. Campbell is sentenced as follows: [91] On the discharge firearm with intent (count 5), Mr.

Campbell’s time in custody equal to 826.5 days is noted, and the sentence

going forward is 1728.5 days for a total effective sentence equal to seven years (or 2555 days); [ 92 ] On the aggravated assault (count 1), Mr.

Campbell’s time in custody equal to 826.5 days is noted, concurrent to the time in custody on the discharge firearm with intent, and the sentence going forward is 1,363.5 days, concurrent to the discharge firearm with intent, for a total effective concurrent sentence equal to six years; [ 93 ] On the threat against Kiona Sinclair (count 8), the sentence is four months, specifically 120 days, consecutive; [ 94 ] On the possession of weapon (knife) dangerous to the public peace (count 9), the sentence is four months, concurrent to the sentence at count 8; [ 95 ] On the threat to property (count 14), the sentence is eight months, specifically 240 days, consecutive; [ 96 ] On the possession of firearm offences (counts 2, 3, 4 and 10, a conviction on the s. 91 offence), the sentence will be 12 months, specifically 365 days, all concurrent to each other but consecutive to the other offences. [ 97 ] So, after taking into account Mr.

Campbell’s time in custody at enhanced credit, the total sentence going forward is 2,453.5 days. That is approximately six years and seven months – but the exact sentence going forward is 2,453.5 days. ANCILLARY ORDERS [ 98 ] It is ordered that Mr. Campbell have a sample of his bodily substances taken for submission to the national DNA data bank. This order is made concurrently on the aggravated assault and discharge firearm with intent (counts 1 and 5 of the Information).

These are both primary designated offences pursuant to s. 487.04 of the Criminal Code and therefore the ordering of a DNA sample is mandatory pursuant to s. 487.051(1) Criminal Code . The DNA sample will be taken from Mr. Campbell in custody. [ 99 ] A weapons prohibition order is mandatory in accordance with s. 109 Criminal Code , and is made concurrently on the aggravated assault and discharge firearm with intent (counts 1 and 5 of the Information). Crown counsel seeks that the prohibition order be for life. Mr. Campbell has not been subject to any prior such prohibition orders.

However, the seriousness of these offences, including that a victim sustained significant injury from such offences, as well as the circumstances of the offences in this case, persuades me to exercise my discretion in making the prohibition a lifetime order. Mr.

Campbell is prohibited from possessing any firearm, any prohibited firearm, or restricted firearm, any cross bow, restricted weapon, prohibited weapon, prohibited device, ammunition, prohibited ammunition and explosive substance, for life. [ 100 ] There is an order of forfeiture as to all items seized by police in this matter. [ 101 ] Costs and the victim fine surcharge are waived, as it would cause Mr. Campbell undue hardship to have to pay them in his current circumstances. “Original signed by” C. Carlson P.J.