R. v. Eagan, 2014 ONCJ 260

COURT FILE No.: Toronto DATE: 2014-03-28 Citation: R. v. Eagan , 2014 ONCJ 260 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GARNET EAGAN Before Justice Mara Greene Reasons for Judgment released March 28, 2014 E. Pancer………………………..……………………………………… for the Crown A. Weisberg…………………………………………….…………….….Garnet Eagan Greene, J: Introduction [ 1 ] On July 13, 2013 Mr. Eagan was charged with a number of offences including unauthorized possession of a firearm contrary to section 91(1) of the Criminal Code , careless storage of firearm, careless storage of ammunition and other related charges.

On March 17, 2013, Mr. Eagan entered a plea of guilty to the charge of unauthorized possession of a firearm. At the sentencing hearing, all the facts surrounding Mr. Eagan’s arrest were read in to the record and admitted by Mr. Eagan. In addition to the facts surrounding the offence, photographs of the firearms and ammunition seized were filed as exhibits and counsel for Mr. Eagan also filed numerous letters of reference in support of his client. Circumstances of the Offence [ 2 ] On July 13, 2013, the police executed a search warrant on Mr. Eagan’s house. Mr.

Eagan’s son, Andrew Eagan, was on bail at the time for a firearms related offence and he was the target of the search warrant. During the search, the police located an old rifle, a shotgun, and three air pistols in Mr. Eagan’s closet. The police also located a bag of ammunition in a desk drawer in a separate room and a few rounds of ammunition in a desk located in Mr. Eagan’s room. A handgun and illegal narcotics were located in Andrew Eagan’s room. Mr. Eagan was not charged in relation to these latter items. There is no dispute that these latter items belonged to Mr. Eagan’s son. [ 3 ] Upon arrest, Mr.

Eagan immediately admitted that the rifle, shotgun and air pistols located in his closet belonged to him. Mr. Eagan had inherited these firearms from his grandfather many years earlier. Historically he stored them in his basement, but in 2012 the firearms were moved to Mr. Eagan’s closet as there had been a flood in his basement. [ 4 ] At the time of his arrest, Mr. Eagan did not have a permit for the firearms. The Court was advised, and it was not disputed, that Mr. Eagan was not well versed on the legal requirements for owning firearms and was unaware that he required a permit.

Years earlier, he had obtained an FAC (which is not the appropriate permit) but this certificate had lapsed by the time of his arrest. Mr. Eagan admitted that he knew that the firearms were not properly stored; he had intended to address this but just had not had the time. In relation to the ammunition found in the residence, Mr. Eagan advised and it is not disputed, that he had completely forgotten about the ammunitions. [ 5 ] At the time of his arrest, Mr. Eagan was acting as a surety for his son and his son was living in his residence. It is clear that Mr.

Eagan’s son could have accessed the firearms located in Mr. Eagan’s closet. No one at the bail hearing for Mr. Eagan’s son asked Mr. Eagan about the presence or absence of firearms in his residence nor did anyone, including Mr. Eagan’s ex-wife (who was also the surety and who knew about the firearms) turned their mind to this issue. Circumstances of the Offender [ 6 ] Mr. Eagan is a 59 year old first offender. He has an exemplary history and an obvious commitment to his community and family.

There can be no doubt that apart from this offence, in failing to obtain the proper permit for a firearm he inherited years ago but never used, Mr. Eagan has been a model citizen. [ 7 ] Mr. Eagan was raised in a supportive family. After high school he attended Ryerson Polytechnic Institute but had to leave his program prior to graduation to move in with his grandfather when he became ill and help out with his grandfather’s farm. [ 8 ] Mr. Eagan did not return to school.

Instead, he started working in the security service industry working his way up to Vice President of Sales before starting his own security company in 2004. Mr. Eagan continues to run his own security business. [ 9 ] Given the nature of Mr. Eagan’s company, many of Mr. Eagan’s clients require him and his employees to be bonded. If Mr. Eagan obtains a criminal record as a result of this offence, he will no longer be able to be bonded and will likely lose most of his clients and therefore his business. If Mr. Eagan receives a conditional discharge for this offence, he will not be able to be bonded for three years.

If this were to occur, Mr. Eagan’s company will lose, at least for three years, many clients. It is unknown if his company could withstand this. If Mr. Eagan obtains an absolute discharge, he will not be able to be bonded for one year. While this will still be difficult for his company, the company could likely survive the one year loss of business. [ 10 ] In addition to being a hard worker, Mr. Eagan has a strong family life. He married in 1990 and in 1991 his son, Andrew Eagan, was born. In 2009 Mr. Eagan and his wife separated but they remain good friends and work together to parent their son. Mr.

Eagan is actively involved in his son’s life and is working hard to help him find the right path. [ 11 ] Mr. Eagan also has many good friends as is evident from the number of reference letters presented to the Court. What is of particular note is how long standing most of Mr. Eagan’s friendships are. Many of the letters filed with the court were written from friends Mr. Eagan has had since high school. Others he has known for 15-20 years. All of the reference letters comment on Mr. Eagan’s wonderful personality, his general good character and engagement with the community. [ 12 ] Mr.

Eagan has also been actively engaged in volunteer work. He volunteered at the Parkdale United Church Foundation from 1995 until 2010. He also volunteered with sport teams. [ 13 ] Mr. Eagan suffers from two medical conditions, heart disease and diabetes. Both of these ailments are presently managed through medication. Issues Raised in the case at bar [ 14 ] Both counsel agree that in the grand scheme of firearm offences this offence is on the lower end. Crown counsel argued that given a number of relevant aggravating factors a sentence of 90 days to be served intermittently ought to be imposed. Counsel for Mr.

Eagan argued that an absolute discharge is the appropriate sentence. The Relevant Legal Principles

i) General Legal Principles [ 15 ] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community. [16] How much weight I place on any one objective will depend on the facts of each case. In the case at bar, as we are dealing withfirearms. Given the inherent danger associated with firearms and the prevalence of gun violence in Toronto, the principles of deterrenceand denunciation are paramount. [17] I am also mindful of the fact that while Mr. Eagan is not youthful, he is still a first offender. As such, I must also keep in mind theprinciple of restraint.

The Court of Appeal stated, in R. v. Batisse (2009), 2009 ONCA 114 , 93 O.R. (3d) 643, at paragraphs32-33, … the appellant was a first offender. As such, the restraint principle requires that the sentencing judge consider all sanctions apart fromincarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individualcircumstances of the accused: see R. v. Priest (ON.C.A.), (1996), 30 O.R. (3d) 538 (C.A.), at p. 545. The Discharge [18]

Section 730 of the Criminal Code outlines the criteria for the imposition of a discharge. To summarize, a discharge cannot beimposed where the offence is one where a minimum sentence exists or where the maximum penalty for the offence is fourteen years tolife. Moreover, discharges may only be granted where it would not be contrary to the public interest and where it would be in the bestinterest of the defendant to impose a discharge. [19] Other than offences barred by statute, there is no category offence per se where a discharge cannot be imposed as long as the othercriteria is met.

Discharges are not limited to only the most trivial of offences. Nonetheless, the nature of the offence is a highly relevantfactor in determining the public interest in entering a conviction as opposed to a discharge. Some offences may be sufficiently seriousthat regardless of the prior good character of the defendant, a discharge will not be appropriate. The more serious the offence, the morelikely a discharge, be it absolute or conditional, will be contrary to the public interest (see R. v.

Sanchez-Pino, (1973) (ON CA), 11 C.C.C. (2d) 53 (Ont.C.A.) [20] In assessing the appropriateness of granting an offender a discharge, the court must consider the public interest is deterring othersfrom committing similar offences and denouncing the conduct (see R. v. Fallofield, (1973) (BC CA), 13 C.C.C. (2d)450 (B.C.C.A.). General deterrence, however does not guide the entire analysis, it is only one fact the court must consider (see R. v.Sears, [1978] O.J. No. 435 (C.A.). Moreover, in R. v. Hayes, [1999] O.J.

No. 938 (O.C.G.D.), the Court noted that a suspended sentenceand imposition of a criminal record is not necessarily a greater deterrent than a conditional discharge. [21] The types of factors relevant to the imposition of a discharge can include, but are not limited to, situations where the offender hasacted completely out of character or been in the midst of some kind of mental or emotional turmoil (see R. v. Hayes, supra and R. v.Taylor (1975), (ON CA), 24 C.C.C. (2d) 551 (Ont.C.A.); where a criminal record would unduly interfere withemployment (R. v.

Hayes, supra); or, where the informal consequences of a criminal record would lead to a disproportionate sentence. Application of the law [22] It should first be noted that both counsel agree that there is no statutory bar for imposing a discharge in the case at bar. At thistime, no minimum sentence attaches to this offence, and the maximum sentence is not fourteen years or more.

With this in mind, themain issue that this court must decide is whether a discharge is appropriate and properly reflects the relevant principles of sentencing. [43] In assessing whether a discharge is appropriate, I remind myself that despite the presence of many relevant mitigating factors, giventhat the offence is one that involves firearms, the principles of deterrence and denunciation are of primary importance in this case.

[44] This court must also keep in mind that even where there is no statutory bar to the imposition of a discharge, there will be times whenthe gravity of the offence coupled with the need to deter others from committing such offences will demand a criminal conviction beentered on the offender’s record coupled with a period of incarceration. The question in the case at bar is whether this is such a case. (

a) The aggravating and mitigating factors [27] The first step in determining the appropriate sentence is to consider all the relevant aggravating and mitigating factors. I find thefollowing factors as aggravating in the case at bar:

a) That Mr. Eagan had more than one firearm in his residence that was unregistered;

b) That the firearms were stored in a careless manner, in a closet where anyone could access them;

c) That there was ammunition in the residence that was also stored in a careless manner, some of which were in the same room as thefirearms (albeit I accept that Mr. Eagan forgot about the existence of this ammunition); and,

d) That Mr. Eagan’s son, who was allegedly involved in criminal conduct, was living in the house and by virtue of the firearms beingstored carelessly had easy access to them. As was noted by the court in R. v. Snobelen, [2008] O.J. No. 6021 (OCJ) at paragraph 31,“The presence of carelessly stored, unregistered handguns can lead to these weapons falling into the hands of criminals as a result ofbreak and enters leading to disastrous consequences.” In the case at bar that risk was even greater given that Mr. Eagan’s son, who wasallegedly engaged in criminal activity, was living with Mr. Eagan at the time.

I am mindful, however, that the firearms in questionincluded a shotgun and rifle, not a handgun. I appreciate that these types of firearms may be less appealing to those involved in criminalenterprise than a handgun. I note that the police found a handgun in Andrew Eagan’s room. [28] The Crown argued that it was further aggravating that Mr. Eagan was acting as a surety for his son who was on a release for firearmrelated offences. It was the Crown’s position that Mr. Eagan ought to have known to either remove the firearms from his residence orobtain a permit and store them properly.

It is this fact that the Crown relies on most heavily to support a sentence of imprisonment. Respectfully, I disagree. Mr. Eagan is not a lawyer and at the time of this offence had very limited exposure to the criminal justicesystem. The issue of the presence of absence of firearms was not raised at the bail hearing by anyone, including the Crown. Moreover,Mr. Eagan’s ex-wife, the co-surety, clearly did not turn her mind to it because she allowed her son to move in with Mr. Eagan knowingthat the shotgun and rifle were in the residence. Finally, Mr.

Eagan had no reason to turn his mind to the presence of absence of thefirearms because he had them in his residence for years without issue, they had not been used in all the years they were in the house(even when his son lived there) and arguably are viewed quite differently from a handgun. [29] The relevant mitigating factors are as follows:

a) Mr. Eagan entered a plea of guilty to the offences;

b) Mr. Eagan is taking full responsibility for his actions;

c) Mr. Eagan cooperated with the police and confessed immediately to being the owner of the firearms;

d) Mr. Eagan has no prior criminal record and is of prior good conduct;

e) Mr. Eagan has strong family ties and is dedicated to his family;

f) Mr. Eagan is a hardworking individual having always maintained employment;

g) Mr. Eagan has volunteered consistently in the community with his church and with sports teams;

h) This offence is completely out of character for Mr. Eagan;

i) Mr. Eagan has suffered the embarrassment of advising his friends of this offence;

j) Mr. Eagan has suffered and will continue to suffer informal consequences arising from this offence as he will not be able to takeon any client that requires him to be bonded for some time (even if a discharge is granted);

k) Mr. Eagan did not realize that he needed to obtain a permit for the firearms (though he did know they were not stored properly);and,

l) No one ever used the firearms. (

b) Range of sentence generally imposed in similar cases [30] While sentencing is always an individualized process, a review of the general range of sentence normally imposed for similaroffences is a necessary starting point. As was noted in R. v. McDonnell (SCC), [1997] S.C.J. No. 42, starting pointsentences as set out by the appellate courts act as guides to the lower courts on the appropriate disposition. While a sentencing judge

may, in exceptional cases, impose a sentence outside the general range of sentences normally imposed for similar offences, where thesentencing judges chooses to do so, the sentencing judge must clearly articulate the basis for such a deviation. [31] In R. v. Laponsee, [2013] O.J. No. 2834 (SCJ) at paragraph 58 the Court noted that the range of sentence for this type of offence isquite broad, the court stated, Suffice it to say that the case law suggests that the sentences imposed for roughly -- I suppose very roughly -- similar offences rangefrom an absolute discharge in Snobelen, [2008] O.J.

No. 6021, to a conditional discharge in Kurkauoglu, to several examples of aconditional sentence in Caranci, [2012] O.J. No. 2771 and Canepa, 2011 ONSC 1406 , [2011] O.J. No. 924, and Smickle, tointermittent sentences in Carbone, [2012] O.J. No. 176, and T.A.P., 2013 ONSC 797 , [2013] O.J. No. 968, as well as, ofcourse, penitentiary sentences in cases such as Nur, 2011 ONSC 4874 , [2011] O.J. No. 3878, and Scarlett, 2013 ONSC 562, [2013] O.J. No. 644. [32] Mr. Weisberg, on behalf of his client properly points out that discharges for firearm offences are “relatively rare occurrences”. Nonetheless, Mr.

Weisberg managed to find a number of cases where discharges were imposed for similar offences under very similarcircumstances. For example, in R. v. Snobelen, supra, the defendant entered a plea of guilty to one count of careless storage of a firearmand one count of possession of a restricted firearm. In that case, Mr. Snobelen had a 22 calibre semi-automatic hand gun withammunition readily accessible stored in an unlocked case in his home. The gun and ammunition were stored carelessly and Mr.Snobelen did not have a permit for the firearm. When the police discovered the firearm, Mr.

Snobelen immediately confessed to thecrime, cooperated with the police, was of prior exemplary character and pled guilty. Despite the serious nature of the offence, and thepotential harm associated with carelessly stored handguns and ammunition, the Court held that a discharge was appropriate. In somerespects the facts in Snobelen are more aggravating in that Mr. Snobelen was in possession of a semi-automatic handgun as opposed to alarge shotgun.

In some respects it is less aggravating in that there was not another person in the residence who could have mis-used thefirearm that was carelessly stored. [33] In R. v. Prison, [2004] B.C.J. No. 1316 (BCPC), the sentencing judge imposed a discharge where Mr. Prison entered a plea of guiltyto the offences of careless storage of a firearm and possessing a firearm without a license. Given his young age, prior good character,and the potential impact of a criminal record on his future employment, the court held that it would not be contrary to the public interestto impose a discharge. [34] In R. v.

Kurkcuoglu, [2010] B.C.J. No. 813 (BCSC), Mr. Kurkcuoglu had in his possession a loaded prohibited firearm at work. Mr. Kurkcuoglu did not have a permit to possess this firearm. Mr. Kurkcuoglu took out this gun and fired it when thieves attempted torob his jewellery store. Despite the fact that it was a prohibited firearm and that Mr. Kurkcuoglu discharged the firearm, the court stillheld that a discharge was an appropriate sentence given his prior good character, his involvement in the community and the impact aconviction would have on his employment and volunteer work. [35] Finally in R. v. Cox, [2003] O.J.

No. 917 (SCJ) a discharge was imposed on three counts of careless storage of a firearm. In thatcase, three unloaded firearms were located in an unlocked closet in Mr. Cox’s residence. [36] In contrast to these cases, I note that in R. v. Laponsee, supra, the trial judge held that a discharge was not an appropriate sentence. In that case Mr. Laponsee brought an unregistered firearm and ammunition into the airport and attempted to take it on an airplane. Itwas discovered at security. Similar to the case at bar, Mr. Laponsee obtained the firearms from a family member and had no intention ofusing the gun.

In that case a one year conditional sentence was imposed. In imposing a sentence of incarceration the trial judge focusedon the extremely aggravating factor of bringing a firearm into an international airport. This latter factor in my view properlydistinguishes the case at bar from the facts in Laponsee. The appropriate sentence in this case [37] In many ways this case is very similar to the cases listed above where discharges were imposed.

Of significance, however, is that inthe case at bar, the potential safety concerns were arguably heightened by the fact that there was someone else in the residence that couldhave potentially used the firearms to commit criminal offences. On the flip side, I accept defence counsel’s argument that the types of

firearms found in Mr. Eagan’s room are not likely to appeal to Mr. Eagan’s son, Andrew. This argument is supported by the reality that during the search the police found a handgun in the room belonging to Andrew Eagan. [38] I agree with Mr. Weisberg’s submission that this case does have many of the hallmarks of a conditional discharge including that,

a) This offence is completely out of character for Mr. Eagan he has been a law abiding citizen for 59 years;

b) Mr. Eagan has taken full responsibly by entering a plea of guilty and by advising his friends of his actions;

c) If convicted, Mr. Eagan will most likely lose his business given the long term consequences of not being bondable. Even with a discharge, Mr. Eagan’s business will suffer; and

d) The offence was committed out of ignorance as opposed to out of a willful intention to disobey the law (albeit Mr Eagan was aware that he was storing the firearms improperly). [39] When I consider all these relevant factors, despite the aggravating factors noted above, I am satisfied that this is an appropriate case to impose a discharge. In my view, given the relevant case law, all the mitigating factors highlighted above, the unique circumstances of this offence, and the impact a conviction will have on Mr. Eagan’s business, it would not be contrary to the public to impose a discharge.

I am further satisfied that imposing a conviction would result in a disproportionate sentence and that the negative impact of a conviction on Mr. Eagan outweighs any value gained by stigmatizing Mr. Eagan with a criminal record. In my view, given the unique facts of this case, the fact of the arrest, the public humiliation of the charging process, the reality that even with a discharge Mr. Eagan’s business will suffer, sufficiently address the need to deter others from committing similar offences and denounces the actual conduct in question. [40] I am also satisfied that it would be in Mr.

Eagan’s best interest to impose a discharge. A criminal record will have extensive long term implications for Mr. Eagan’s business and will likely lead to its demise. Even the discharge will have an impact on his business, but given the finite time associated with the bar from being bonded, I am told Mr. Eagan’s business while it will suffer it will likely survive. [41] The question remains whether I should impose a conditional or absolute discharge. The only distinction between the two is that one includes a period of probation. In some respects there is a value of placing Mr.

Eagan on probation and requiring him to complete some community service hours in order to make reparations to the community for his actions. I note, however, that Mr. Eagan has a long history of volunteering and giving back to his community, so in some respects, adding this condition to his sentence appears unnecessary. There is no other need or objective of sentencing that would be accomplished by placing Mr. Eagan on probation. He does not require counselling or job training and there is no need to order that he stay away from any person or place. In my view there would be no benefit to the public or to Mr.

Eagan to place him on probation. [42] There will however be a strong consequence to Mr. Eagan if this court imposed a conditional discharge as opposed to an absolute discharge. If Mr. Eagan receives an absolute discharge he will not be able to be bonded for one year which would cause substantial hardship to his business. If Mr. Eagan receives a conditional discharge he cannot be bonded for three years causing even more hardship to Mr. Eagan’s business.

Given this reality and the absence of any benefit to imposing a period of probation, I am satisfied that the appropriate sentence in the case at bar is an absolute discharge. Moreover, in accordance with my oral reasons I am also imposing a

section 110 order for three years, forfeiture of the rifle, shot gun and ammunition and, an increased victim fine surcharge of 1500$. Released March 28, 2014 ________________________ Justice Mara Greene