Her Majesty the Queen - v. -, 2013 SKPC 174

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 174 Date: October 29, 2013 Information: 24487015 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jessie Neault Appearing: Ms. Lori O ’Connor For the Crown Mr. Todd Parlee For the Accused SENTENCING DECISION I. CARDINAL , J INTRODUCTION [ 1 ] Over the course of two days in November 2012, Mr. Neault broke into two motor vehicles and stole three firearms (two rifles and a shotgun) as well as some ammunition and other items.

On November 21, 2012, after making inquiries as to who might wish to buy these firearms, Mr. Neault found a buyer and sold the three firearms to another person. After the commission of these offences, he committed further offences in December relating to theft of items from vehicles. During the police investigation, Mr. Neault told the police that another person had committed the offence of breaking and entering and stealing a firearm from a vehicle when he knew that was not true. Further police investigation proved that the named person was not involved and Mr.

Neault confessed his own involvement and to misleading the police.

[ 2 ] As a result of his actions, Mr. Neault has pled guilty to the following charges: Count 1: Between November 12, 2012 and the 19 th day of November 2012, at or near Tisdale, Saskatchewan he did break and enter a certain place to wit a motor vehicle situated at the Recplex in Tisdale, Saskatchewan and did steal a firearm located in it contrary to s. 98(1) (

b) of the Criminal Code . Count 2: Between the 12 th day of November 2012 and the 19 th of November 2012, did steal Canadian currency, the property of unknown person of a value not exceeding $5,000.00 contrary to s. 334 (

b) of the Criminal Code . Count 6: On or about November 21, 2012, he did transfer a firearm to wit: two rifles and a shotgun knowing that he was not authorized to do so contrary to s. 99(2) of the Criminal Code . Count 7: On or about the 8 th day of December 2012 and the 11 th day of December 2012, at Tisdale did steal a GPS system and Canadian currency the property of unknown person of a value not exceeding $5,000.00 contrary to s. 334 (

b) of the Criminal Code . Count 11: On or about December 17, 2012, did commit public mischief in that with the intent to mislead he caused Cst. Cameron Schmidt, a peace officer, to enter upon an investigation by making a false statement to Cst. Cameron Schmidt that accused N.B. of having committed the offence of break and entering to steal a firearm contrary to s. 140(1) (

a) of the Criminal Code . [ 3 ] The Crown elected to proceed by indictment with respect to the break and enter into the motor vehicle and steal the firearms contrary to s. 98(1) (

b) of the Criminal Code , which carries a maximum penalty of life imprisonment. There is no minimum penalty. [ 4 ] Of concern is the charge that he transferred firearms, being two rifles and a shotgun, knowing he was not authorized to do so contrary to s. 99(2) of the Criminal Code . The Crown proceeded by indictment and this offence carries a minimum punishment of imprisonment for a first offence of three years and a maximum penalty of imprisonment for a term not exceeding 10 years. [ 5 ] The remaining matters proceeded by way of

summary conviction and all carry a maximum sentence of six months imprisonment. [ 6 ] Mr. Neault has given notice and is challenging the constitutional validity of the mandatory minimum penalty in s. 99(2) of the Criminal Code as a violation of s. 12 of the Charter , being his right not to be subject to cruel and unusual punishment. By agreement of counsel, it was decided that the Court would first determine an appropriate sentence without considering the three year minimum sentence.

If I find that a fit sentence is one that is less than three years, further argument will be made regarding the constitutionality of s. 99(2) and whether it violates s. 12 of the Charter and if so, whether it can be saved by a s. 1 analysis or if it should be declared of no force and effect. [ 7 ] Counsel for Mr. Neault submits that an appropriate sentence is in the range of two years less a day incarceration for all charges, but is not arguing that a Conditional Sentence Order be made.

The Crown submits that a global sentence of three and one-half years is appropriate, with three years being the appropriate sentence for the s. 99 trafficking offence. FACTS [ 8 ] The Crown read in the facts and they are not in dispute. On November 12, 2012, Mr. Neault and his co-accused looked through vehicles for things to steal. Approximately $5.00 was stolen from one vehicle, and the accused found a shotgun in another vehicle, stole it and gave it to the co-accused to conceal. They returned to Mr. Neault’s residence where Mr. Neault then kept the shotgun, hiding it in a mattress under a trailer.

No value was provided for the shotgun. [ 9 ] On November 19, 2012, the stealing continued with $13.00 being stolen from two vehicles. Mr. Neault and his co-accused again found two rifles locked in a vehicle. They broke in and stole the rifles, one being a .22 calibre and the other a Browning lever action (no calibre given) equipped with a scope, with a combined valued of $1,700.00. Mr. Neault took them home and hid them with

the shotgun. Also taken was a backpack, knives, two boxes of .22 calibre ammunition, a spotting scope and range finder all valued at approximately $930.00. [ 10 ] Mr. Neault let it be known to others that he wanted to sell the firearms. On November 21, 2012, a buyer met Mr. Neault and purchased the three firearms for $300.00. According to Mr. Neault, the buyer was aware the firearms were stolen and that the sale was unlawful. [ 11 ] On December 8, 2012, Mr. Neault continued to steal items, being two GPS systems and $80.00 in cash from two vehicles.

On December 11, 2012 he stole $40.00 from two vehicles. [ 12 ] The police investigation led to Mr. Neault, and on December 19, 2012, Mr. Neault provided a statement to the police implicating another young man in the break and enter and theft of the firearms. The police investigated further and found that person was not involved with the thefts. On December 20, 2012, Mr. Neault admitted to police that he had lied about the young man’s involvement and was just trying to get him into trouble as they had a previous disagreement. By this point the co-accused had provided information implicating Mr. Neault, and Mr.

Neault then admitted his own involvement. [ 13 ] The firearms have not yet been recovered although the person who purchased them has been charged. [ 14 ] Before venturing into the constitutionality of the mandatory and minimum sentence in s. 99(2) of the Criminal Code , I must first determine if a sentence of three years or more is appropriate. If such a sentence is appropriate in the circumstances, then the constitutionality of the provision is academic. CIRCUMSTANCES OF THE ACCUSED [ 15 ] A Pre-Sentence Report (PSR) was prepared in this matter. Mr.

Neault advised that as a child his family was transient but he did not experience any problems or abuse. He did not know his biological father while growing up, but did reconnect with him at age 18. His stepfather appears to have been a positive influence, but that relationship broke down when his mother and stepfather ended the relationship. He has a close relationship with his four siblings, but has not seen his two stepsisters in the last 4 or 5 years. He has positive support from others, especially his girlfriend of 18 months.

She does not use drugs or alcohol nor does she have any criminal involvement. [ 16 ] Mr. Neault’s work history is sporadic and he has been fired from jobs for not attending his scheduled shifts. He was unemployed at the time of the offences and is currently unemployed. He has some physical health issues as a result of falls in 2012 but is not on medication. However, during argument, counsel for Mr. Neault indicated that Mr. Neault has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and does take medication for it.

There was no indication when that diagnosis occurred or how long he has been taking medication. [ 17 ] He identified that he has experimented with illicit drugs since he was 13 and has used alcohol since the age of 17. While he has tried cocaine, crystal methamphetamine, MDMA and ecstasy, his drug of choice is marihuana, which he used every two or three days since the age of 13. He advises he was consuming drugs and alcohol during some of the offences, but has not used drugs or alcohol since his release on conditions on December 24, 2012. His family have voiced concerns about his drinking, but Mr.

Neault does not view it as problematic, even though he admits his longest period of sobriety since he started drinking was 7 months (that being the time he has been on release conditions). However, during submissions, counsel for Mr. Neault advised the Court that Mr. Neault will take drug and alcohol counselling if ordered to do so and will comply with any order not to consume drugs or alcohol. [ 18 ] At page 9 of the PSR it notes: “Jessie stated his motivation for his current offences was for financial gain to pay for food, rent and outstanding bills.

When Jessie was asked if he felt crime was wrong or not, he stated, “that is a tricky question”. He feels without

crime it would be a perfect world, but with crime it keeps the world balanced. In his opinion, crime is “bad” but there are reasons for people to commit crimes.” The report noted that while Jessie stated his peers are not involved in criminal activity, of the peers he identified, two were his co-accused. [ 19 ] The Saskatchewan Primary Risk Assessment placed Mr. Neault’s overall risk for general re-offending as being high. He was assessed as being at the 86 th percentile which means 14% of Saskatchewan offenders were assessed as having more risk factors.

His major risk factors are: peers and companions, residence instability, substance abuse, attitude, unemployment, financial difficulties and a lack of self management. Mitigating Factors [ 20 ] In mitigation, Mr. Neault is a 20 year old young man who entered timely pleas of guilty to these offences. [ 21 ] Mr. Neault has a minimal criminal record which is comprised of a previous conviction as a youth in 2009 where he was granted a six month conditional discharge for theft under $5,000.00.

His only conviction as an adult was on June 4, 2013, for possession of a weapon dangerous to the public peace contrary to s. 88 of the Criminal Code for which he was sentenced to four months probation. While he completed the period of probation, he re-offended by committing these offences approximately one and a half months after his period of probation ended. Aggravating Factors [ 22 ] Mr. Neault committed the offences for financial gain. [ 23 ] He stole three firearms and returned them to his residence where he hid them. [ 24 ] It was Mr. Neault who actively sought buyer(

s) for the firearms. [ 25 ] Mr. Neault and the buyer met at Mr. Neault’s residence and negotiated the sale. Both knew the firearms were stolen and that Mr. Neault was not able to lawfully transfer them. [ 26 ] The firearms were not recovered. [ 27 ] He did not admit his responsibility easily, but rather misled the police and implicated an innocent person in a serious criminal matter, simply because he was upset with that person. [ 28 ] After stealing and hiding the firearms and negotiating their sale, Mr. Neault continued to steal items from other vehicles.

His criminal behaviour would have continued but for police intervention. Gladue Factors [ 29 ] There are no Gladue factors to consider. PRINCIPLES OF SENTENCING

[30] The purpose and principles of sentencing are set out in s. 718, 718.1 and 718.2 of the Criminal Code: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

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

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

d) to assist in rehabilitating offenders; (

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

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [31] As noted in R. v. Christensen, 2012 BCPC 374, at paragraph 10: The overarching duty of a trial judge is to apply all legitimate principles of sentencing to determine a “just and appropriate sentence”which reflects the gravity of the offence committed and the moral blameworthiness of the offender (R. v. C.A.M., (SCC), (1996) 105 C.C.C. (3d) 327).

Section 99 [32] As the constitutionality of

section 99 of the Criminal Code is being challenged, I shall first consider the appropriate sentencefor trafficking in firearms without consideration of the three year minimum sentence mandated. If, after applying the general principlesof sentencing to this offence and this offender, I find the appropriate sentence is three years or more, the constitutionality issue willbecome academic. (See Christensen, supra, at para. 13.) [33]

Section 99 of the Criminal Code appears in

Part III: Firearms and other Weapons, under the heading “Trafficking Offences”. As observed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at para. 147, “Firearms trafficking offences are extremelyserious, carrying substantial penalties.” [34] Neither counsel provided any case law from Saskatchewan concerning sentences for charges under s. 99 or offences involvingtrafficking in or possession for the purpose of trafficking in firearms.

There are a number of other cases involving carrying a weapon (afirearm) dangerous to the public peace or carrying a loaded firearm, but these are not helpful as it is one thing to have possession of afirearm and quite another to traffick in firearms. Counsel have filed cases from other jurisdictions which provide some guidance. [35] Firearms offences concern both the Court and the community at large as they are inherently dangerous.

The strict regulationof the purchase and sale of firearms is necessary to protect the public and guard against the illegal sale and distribution of firearms. [36] In Christensen, supra, the accused was sentenced to four years imprisonment after being found guilty on a number of firearmoffences including possession of a prohibited firearm with readily accessible ammunition (s. 95(1)) and offering to transfer firearms (s.100) which carried mandatory minimum sentences of three years and maximum sentences of ten years.

As the constitutionality of thoseprovisions was in issue, the sentencing judge determined a fit sentence without resort to the minimum punishment. Mr. Christensen was19 years of age at the time of the offences and had no previous criminal record. He had purchased firearms from a co-accused andintended to sell them for a profit. After crediting him with double credit for 6 months time served, he was ordered to serve the remainingthree years incarcerated, and the constitutionality issue became academic.

[ 37 ] In R. v. C.L., 2012 ONCJ 413 , a sentence of two years less a day with credit for one year time served was imposed on charges of trafficking in cocaine, with one year consecutive for firearms trafficking as well as three years probation. This case is distinguishable as the accused had offered to sell a .45 calibre firearm to an undercover police officer during drug transactions.

The Court accepted that it was a “hollow offer” meant to keep the officer returning to purchase more drugs and that the accused did not have actual possession of a firearm nor did he have access to one or any intention to transfer it.

The Court considered that his criminal culpability was more directly connected with the sale of cocaine. [ 38 ] I agree with this observation in C.L. , supra, at para. 11 : ...While firearms in general and handguns in particular are dangerous and a pressing public concern in the greater Toronto area, the hollow offer that forms the substance of this charge has to be seen to be a less serious offence than the actual possession of a firearm.

The likelihood of danger that a firearm could be used, to harm members of the public, is much higher in the case of actual possession of a gun, than is the offering to get one in the future, and particularly so when the offerer has no intention of actually making the firearm available. ... [ 39 ] In R. v. Ivanic , 2011 BCCA 158 , the accused sold 3 restricted and 2 prohibited firearms to an undercover police officer. He was also involved in a shoot out when he was attacked by people he was involved with in a drug deal.

His minimal criminal record contained a recent conviction for trafficking in drugs where he received a conditional sentence and firearm prohibition. He was sentenced to 8 years incarceration, but with double credit for 22 months time served his cumulative sentence was 44 months. The sentence was upheld on appeal. While Mr. Neault is not facing a sentence of that magnitude, these comments of the Court at para. 21 are applicable: [21] ... Offences involving firearms and the sale of firearms are serious matters and sentences need to reflect society’s condemnation against those who participate in such activities.

DECISION [ 40 ] Mr. Neault has a limited criminal record, but does have a recent conviction for a weapons related offence. His moral culpability is high. He participated in the theft of three firearms and other items from vehicles, motivated by financial gain. Mr. Neault took the initiative to locate a buyer and successfully arranged the sale of the firearms to another person. While counsel for Mr. Neault argued that the guns were sold to a local resident, not to a known criminal organization or gang member, that is immaterial in my opinion.

The fact remains he stole and then sold firearms. [ 41 ] The degree of planning and deliberation is also a factor in determining the severity of the offence (See Christensen , supra, at para. 22 ). Mr. Neault may have stumbled upon the firearms in the sense that he was not specifically seeking them during his break and entry into automobiles. He did however, hide the firearms and then actively seek a buyer, which involved him talking to others. One of these people provided the name of the buyer and the sale occurred rather quickly.

This ability to turn the guns quickly into financial gain, although not requiring a lot of sophisticated planning, places the offence toward the middle of the scale. [ 42 ] Mr. Neault lacks insight into his own behaviour and has a simplistic view of how to avoid criminal behaviour. He initially failed to recognize his alcohol and drug issues, but now, belatedly, admits drug and alcohol use is an issue that he is willing to address.

The attitude that comes through in the PSR is one of an immature young man who cannot maintain employment and seeks what he perceives to be an easy way out of financial difficulties by committing serious criminal offences. He does not seem to appreciate the gravity of the firearm offences. As noted in Christensen , supra, at paragraph 23 , crimes committed for financial gain garner higher sentences.

[ 43 ] A significant period of incarceration is warranted to denounce in the strongest terms Mr. Neault’s conduct in stealing and then trafficking in firearms. Specific and general deterrence also must be stressed to ensure Mr. Neault does not find criminal behaviour appealing, or a justifiable response to financial difficulties. Similarly, the threat of a penitentiary sentence is necessary to ensure others do not travel down this path. [ 44 ] In this case, while there is hope for rehabilitation of Mr. Neault, that principle is not at the forefront.

He continued with a pattern of criminal behaviour that included repeated thefts, stealing firearms, trafficking in firearms and culminating with obstructing justice by blaming an innocent person. [ 45 ] Without considering the three year minimum sentence for the offence of trafficking in firearms, I find a fit sentence for Mr. Neault is three years. Such a sentence addresses the seriousness with which trafficking in firearms offences are treated by Parliament and other courts.

It speaks to society’s condemnation and serves as a warning to others that such dangerous criminal behaviour will be visited by lengthy periods of incarceration. [ 46 ] Further, the offence of breaking and entering into a vehicle and stealing firearms contrary to s. 98 (1) (

b) of the Criminal Code carries a maximum penalty of life imprisonment. Neither counsel filed any case law. It may be argued that this offence is at least as serious as the trafficking in firearms, although it does not carry a minimum sentence. The availability of life imprisonment underscores the seriousness of stealing firearms and sends a strong message of deterrence. Nothing short of a period of incarceration of at least three years is warranted even for a first offence for an offender with no criminal record. Anything less fails to address denunciation and deterrence in the widest sense. [ 47 ] Mr.

Neault spent four days on remand prior to his release on conditions in December 2012. I will credit those four days on Count 11. In all of the circumstances, and taking into account Mr. Neault’s guilty pleas, and considering the totality principle, I sentence Mr. Neault to the following: Count 6: trafficking in firearms contrary to s. 99(2) of the Criminal Code - 3 years incarceration; Count 1: break and enter a motor vehicle and steal a firearm contrary to s. 98(1) (b) - 3 years incarceration concurrent; Count 11: commit public mischief with intent to mislead a peace officer contrary to s. 140(1) (

a) of the Criminal Code - 124 days minus the 4 days spent on remand, results in 120 days incarceration consecutive to Count 6 but concurrent to all other charges; Count 2: theft of currency of a value not exceeding five thousand dollars contrary to s. 334 (

b) of the Criminal Code - two months incarceration concurrent to all charges; Count 7: steal a GPS system and Canadian currency of a value not exceeding five thousand dollars contrary to s. 334 (

b) of the Criminal Code - three months incarceration concurrent to all charges. [ 48 ] I will hear submissions from counsel concerning collateral orders and surcharges. CONSTITUTIONAL ISSUE [ 49 ] Having found a fit sentence is three years incarceration for trafficking in firearms pursuant to section 99(2) of the Criminal Code , the constitutional challenge to the mandatory minimum sentence of three years incarceration is academic and will not be further considered. I. Cardinal, J