HER MAJESTY THE QUEEN - v. -, 2020 NBPC 9

2020NBPC09 PROVINCIAL COURT JUDICIAL DISTRICT OF MIRAMICHI Citation: 15465613 & 15488513 Date: June 23, 2020 Between: HER MAJESTY THE QUEEN - and - WENDY LOSIER Before: His Honour Cameron Gunn Date of sentencing: June 23, 2020 Appearances: Melanie MacAulay - Her Majesty the Queen Simon Wood - for Wendy Losier 1 . Wendy Losier gave a firearm, a .32 calibre Smith and Wesson handgun, to James Knight (aka James Curtis) her fiancé. The gun was hers and she knew that Mr. Knight had bullets for the gun as she confessed that his stepfather had provided them with the said bullets.

She knew the gun was operable as she had recently fired it herself. As indicated above, she owned the gun, as it had been passed down from her mother, but she did not hold a license to possess it, nor a registration certificate for it. Indeed, it was a prohibited weapon. 2 . The gun had been given to Mr. Knight sometime before the pair, on October 31 st , 2018, drove to the Wal-Mart in Miramichi, New Brunswick. They entered the store and after sometime, a loss prevention officer became suspicious that they were attempting to shoplift. When they left the store, he followed and confronted Mr.

Knight about his suspicions, arresting him for theft. While Mr. Knight denied the allegations, merchandise he had secreted in his clothes fell to the ground. The loss prevention officer escorted Mr. Knight back into the store and Ms. Losier attempted to intervene, “cursing and swearing, and yelling” [1] at the loss prevention officer to let Mr. Knight go. A female employee intervened, and Ms. Losier eventually desisted and left the store. 3 . As he was being escorted to an office in the store, Mr.

Knight tried to run away, was apprehended again, begged to be let go as he did not want to go to jail, fell to his knees, and the stood back up, and started turning in circles. Suddenly he crouched down and when he straightened back up he had the firearm which Ms. Losier had provided to him. He fired three shots, the first close enough to the loss prevention officer that he felt the air move by his ear. The loss prevention officer dove out an emergency exit door. Mr. Knight turned the gun on another employee and fired. That employee also felt the “breeze of the bullet as it whizzed past her ear” [2] .

As he ran from the store Mr. Knight fired a third shot. 4 . Mr. Knight ran from the store and returned to his vehicle, which he drove away with the accused as a passenger. He then led police on a 72 km chase reaching speeds of 170 km/h. During the chase he pointed the firearm at one of the officers pursuing him and was stopped only as a result of the employment of a spike belt. Even after this he drove the car for some distance on its rims. When the vehicle finally came to a halt Mr. Knight used the gun, provided to him by the accused, to take his own life in the presence of the accused. Ms.

Losier emerged from the passenger side of the car screaming “he shot himself, he shot himself”. [3] 5 . The accused appears before the court for the purpose of the imposition of sentence with respect to a number of offences related to her possession of the firearm that Mr. Knight used. It is important to remember that she was not present during Mr. Knight's shooting inside the store and is not being prosecuted or sentenced for offences related to the discharge of the firearm.

Her sentence, however, occurs in the context of the actions that manifest the Supreme Court of Canada's and our Court of Appeal's need for denunciatory sentences relating to firearms possessions offences. 6 . As the Supreme Court of Canada has held:

Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46 , imposes severe penalties for violations of these laws. [4] 7 .

This sentencing requires “ balancing all the relevant factors in order to meet the objectives being pursued in sentencing.” [5] It raises questions with respect to how the ultimate sentence is impacted by the tension between the need to denounce and deter crimes and the need to rehabilitate offenders, the parity and totality principles, and the proper application of the discretion to credit an accused for pretrial custody. The Offences 8 . Ms. Losier was charged with various offences in relation to the activities on October 31 st , 2018.

She eventually pleaded guilty to the following offences (other charges were withdrawn and her guilty plea to another charge was struck and the charge withdrawn as it was not supported by the facts):

i) Section 95 Criminal Code of Canada : Possession of a loaded prohibited firearm that is capable of being discharged without being the holder of a license or authorization under she may possess the firearm; ii) Section 91(3) (

b) Criminal Code of Canada : Possession of a firearm, a .32 calibre Smith & Wesson, without a license under which she might possess it and a registration certificate for it; iii) Section 91(2) Criminal Code of Canada : possession of a prohibited weapon, a .32 calibre Smith & Wesson; iv)

Section 94 Criminal Code of Canada : being an occupant of a motor vehicle, in which she knew that there was in the vehicle a prohibited weapon, a .32 calibre Smith & Wesson. The Position of the Parties 9 . The Crown submits that the appropriate sentence in this case is a global sentence of 3 years, plus mandatory orders and the forfeiture of the Saturn Ion. The Crown submits that the court must give primary consideration to the objectives of denouncing this unlawful conduct and deterring Ms. Losier and others from committing such offences. 10 . Counsel for Ms.

Losier points to her guilty pleas, the efforts she has made at bettering her life and her remorse and seeks a lesser sentence. Ms. Losier implored the court to impose a sentence that did not imperil her release on the charges for which she is currently serving a sentence. I took from this she wished me to impose a sentence concurrent to her previous sentence or a non-custodial sentence. The Law The Fundamental Purpose of Sentencing 11 . Sentencing in this case is guided by the provisions of the Criminal Code .

Section 718 describes the fundamental purpose of sentencing and reads: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance 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 and the harm done to victims or to the community that is caused by 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 or to the community.

Section 718.1 says that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of theoffender. 13. A sentencing judge must also consider the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i)to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be undulylong or harsh (s. 718.2 (c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(

d) and (e)). 14. The objectives described in s. 718 may have predominance in a set of circumstances dictated by the offence, the offender or both.On some occasions the objective of denunciation (often along with deterrence) “must be emphasized to convey society's condemnation”[6] and in such cases “courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society.”[7] Application of the Principles of Sentence 15.

As described above, it is important to consider the circumstances of the offences and the offender, any aggravating or mitigatingcircumstances, and credit for time spent on remand awaiting the resolution of matters. Circumstances of the Offences 16. Though there are several offences here they all relate to the possession of the firearm. The circumstances relevant to the offences arerelated in the opening paragraphs of this decision and I will not repeat them here, but it is important to note that Ms.

Losier owned thefirearm, she had fired it and thus knew it was operable, she was aware that she had no license and no registration for the gun. She wasaware, in having provided the gun to Mr. Knight, that the gun had ammunition. Ms. Losier was also aware that Mr. Knight had recentlykilled a woman with a firearm. 17. I raised with the parties, for several reasons, what consideration I should have of the circumstances of the offences from October 26, 2018, for which she was sentenced on March 25, 2020.

I am satisfied that I should consider them with respect to the issue of thecircumstances of these offences, the question of totality and credit for pre-trial custody. The decision can be found at R. v. Losier, 2020NBQB 72 , 2020 NBQB 072, but for the purposes of this sentencing I find it relevant that: a. Mr. Knight had, on October 26, 2018, shot and killed a woman in their rented residence in Fredericton; b. Ms. Losier had travelled to the Miramichi from Fredericton with the remains of the woman in the trunk of the car; and c. Ms. Losier remained with Mr.

Knight at his parents’ residence until the time of their visit to Wal-Mart. Circumstances of the Offender 18. Ms. Losier is 42 years old and had, at the time of these offences, no criminal record. She has not had an easy life, suffering bothphysical and mental abuse at the hands of alcoholic parents. She reported to have a lonely and traumatic childhood. She became a druguser at 10, a fact which was aptly noted by her counsel as an indication that she has not had a normal life. Her most recent drug addiction

was to crystal meth. Despite her addictions she has held steady employment and finished grade 12. She is a mother of a child, who is 15, from a previous relationship and the child lives with the paternal grandfather. The father of that child was abusive. She was in a relationship with Mr. Knight and is now in a positive, healthy relationship with another man. 19 . Ms. Losier has suffered from depression and, since the time of these offences’, anxiety and PTSD. She self-referred to a counsellor. She has also participated in drug rehabilitation programs.

She asserts that was using drugs during the commissions of these offences. 20 . Counsel for Ms. Losier points out that she has used every possible opportunity to better herself while in custody. She looks after a garden, attends bible study, is part of a book club, and has started seeing a counsellor again. Aggravating Factors 21 . I find the following to be aggravating factors: i.

The offences are serious and carry significant potential jail sentences, particularly the offences contrary to sections 94 and 95 of the Criminal Code which make the accused liable to imprisonment for a term not exceeding ten years; ii. Though the accused did not use the firearm, and nor is she being sentenced for any use offences, it is aggravating that the person to whom she gave the firearm used it during the course of his apprehension for another offence and then ultimately on himself; iii. The impact on the victims here was significant, as is manifest from the victim impact statements. Again, Ms.

Losier cannot and should not be sentenced for the use offences, which are the circumstances mentioned in the statements. It cannot be ignored, however, that the impact on those victims was a consequence of Ms. Losier’s provision of the firearm to Mr. Knight.

Section 718.2(a)(iii.1) holds that evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, is an aggravating factor and I consider it operative in this case. Mitigating Factors 22 . The following factors are mitigating: i. The accused pleaded guilty, which is always mitigating. The guilty pleas came late in the process, however, which somewhat blunts their impact; ii. Ms. Losier had no criminal record at the time of these offences. She had, however committed two serious offences, being an accessory after the fact to manslaughter contrary to

section 463 (

a) of the Criminal Code and indecently interfering with human remains by transporting and disposing of the remains contrary to

section 182 (

b) of the Criminal Code , on October 26, 2018, just five days before these offences, with the same man with whom she was with when the offences here were committed. She subsequently pleaded guilty to those offences and was sentenced to 18 months less credit for time spent on remand; iii. She has expressed remorse; and iv. She is making efforts, while in custody, to make positive changes. The Dominant Principles of Sentence 23 .

As discussed above, the fundamental principle of sentence is that "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [8] Imposing a proportionate sentence must be tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. [9] 24 .

As the Supreme Court of Canada has noted creating a fit sentence, requires the recognition of the fundamental principle of proportionality, but requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. The judge must weigh these various principles and objectives and their relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. [10] In this case, based upon the

circumstances of the offences and the offender, I find that denunciation and specific and general deterrence are, after proportionality, the pre-dominant principles of sentence, though I have considered all of the purposes, principles and objectives of sentence, including rehabilitation. 25 . I have also considered the parity principle, as codified in s.718.2 of the Criminal Code , which holds that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". 26 . The parity principle is not absolute.

It is important to remember the individualized nature of sentencing. The Supreme Court of Canada has noted “though ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.” [11] 27 . In making its submission on sentence the Crown relied on R. v. Vroom [12] .

In that case the Court of Appeal considered the appropriateness of a sentence of 16 months (globally) for three firearms related defences. The court succinctly described the circumstances as follows: During an investigation following a robbery, police were informed Mr. Vroom was in possession of a firearm stored at his residence while he was prohibited from doing so. While Mr. Vroom was incarcerated at the Saint John Regional Correctional Centre for another matter, the police went to his residence, informed the homeowner, Mr. Vroom's grandmother, of the circumstances, and searched the home for the firearm.

The police found a black .22 Ruger-style pistol under the box spring mattress in Mr. Vroom's bedroom. They also found ammunition for the firearm. [13] 28 . Mr. Vroom pleaded guilty to with violations of sections 95(2) (a), 117.01(3) (

a) and 92(3) (

a) the Criminal Code of Canada in relation to the firearm. The sentencing judge imposed 16 months on the

section 117.01(3) (

a) offence and three months concurrent on the other two offences. The Crown appealed, asserting that the global sentence of 16 months incarceration was inordinately short and the Court of Appeal, relying on the Supreme Court of Canada’s decision in R. v. Nur [14] and a number of sentencing decisions relating to s. 95 offences, agreed. 29 . A review of Vroom and Nur reveals the following conclusions relevant to this case: a. The mandatory minimum sentence of three years set out in s. 95(2)(

a) of the Code was struck down on the basis it constituted cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms ; b. Section 95(1) covers a wide range of potential conduct, from a person who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade, to those whose conduct is less serious and poses less danger and at the far end of the range, the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored; and c.

An appropriate sentence in this case for a first-time offender for this type of offence starts at two years less a day. 30 . It bears some mention that in Nur , while the Court struck down the mandatory minimum sentence, it affirmed a sentence of 40 months in jail. Mr. Nur had no prior record, came from a supportive, law-abiding family and was 19 and attending high school. He hoped to eventually attend university and worked a number of part-time jobs and volunteered in the community. His teachers and employers praised his performance and his considerable potential.

He was caught in possession of a working, loaded 22-calibre semi-automatic with an oversized ammunition clip. He had not fired or brandished the weapon. [15] The Totality Principle 31 . The totality principle also impacts this sentence. As our Court of Appeal has noted, the totality principle is an expression of the general principle of proportionality and holds that “Judges sentencing offenders to serve consecutive sentences from multiple offences must ensure the cumulative sentence does not exceed the overall culpability of the offender.” [16] 32 . Here Ms. Losier is charged with a series of offences.

Section 718.3(4) holds:

The court that sentences an accused shall consider directing (

a) that the term of imprisonment that it imposes be served consecutively to a sentence of imprisonment to which the accused is subject at the time of sentencing; and (

b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, including when (

i) the offences do not arise out of the same event or series of events, (ii) one of the offences was committed while the accused was on judicial interim release, including pending the determination of an appeal, or (iii) one of the offences was committed while the accused was fleeing from a peace officer. 33 .

Section 718.2(c), however, holds that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. 34 . In such circumstances, the guidance of our Court of Appeal and the Supreme Court of Canada reveals the following: a. Consecutive sentences are to be imposed unless there is a reasonably, close nexus between the offences in time and place as part of one continuing criminal operation or transaction; [17] b. Concurrent sentences may not be appropriate where the offences, though part of the same transaction, are intrusions on different legally protected interests; [18] c.

If some sentences are to be served consecutively the judge must impose the appropriate sentence for each offence or group of offences that are to be served consecutively; and d. The total of the consecutive sentences should then be calculated with the sentencing judge taking one last look at the total sentence. This last look ensures that the total sentence is not unduly long or harsh.

The sentencing judge is to consider the gravity of the offences, the offender's moral culpability, the harm done to the victims, that the effect of the sentence is not "crushing," and that it be in keeping with the offender's record and future prospects . [19] 35 . In determining the need for consecutive and concurrent sentences, I have determined that all of the offences of October 31 st , 2018 arise out of the same event or series of events.

Given this I will make these sentences for those offences concurrent to each other and sentence the offender globally, meaning I will impose a sentence on the s. 95 offence, which reflects my view of the appropriate global sentence and all other sentences will be concurrent. 36 . I asked the parties to address me on the issue of whether the sentence here should be concurrent to the sentence for the offences committed on October 26 th , 2018 in Fredericton.

Having considered the guidance above, I have determined that they should not and, that based upon the lack of nexus in time, place and circumstance, that the sentences should be consecutive to the sentences imposed by Justice Morrison in March. 37 .

Given that I have imposed these sentences consecutively to the March 2020 sentence, based on the totality principle, I now take a last look back at the sentences, and in my view, considering the gravity of the offences, the offender's moral culpability, the harm done to the victims, the effect of the cumulative sentence would not "crushing," and is in keeping with the offender's prospects. I have therefore not adjusted the sentence to reflect a different global sentence. Before moving to the sentences I am imposing, I turn to the question of credit for pre-trial custody. Pre-Trial Custody 38 . Ms.

Losier was arrested at the time of the offences and held in custody until she was released after a bail hearing. She had spent 6 days in custody. After her release, she was at liberty on an undertaking on these matters until her trial date of December 19, 2019. At the time of her trial she was in custody, but it was on other matters (as described the October 26, 2018 offences). When she pleaded guilty to these offences I did remand her pending sentence, though she was already, in fact, in custody.

At the time she was sentenced for the October 26th offences she was credited, according to the prior defendant history entered as P-3, for pre-trial custody of 225 days which reduced her sentence for those offences. Since that time, she has been serving a sentence. As such, I find that she is not entitled, pursuant

to s.719, to any credit for pre-trial custody except for the 6 days she spent in custody in November 2018, which I credit at 1.5 days’ credit for every day spent in pre-sentence custody for a total of 9 days. Sentence 39 . Ms. Losier has the potential for rehabilitation, but as indicated above a denunciatory sentence in required. In R. v. Lemay [20] , Robichaud J. wrote: It bears repeating that courts have a duty to express their intolerance for people who possess a loaded restricted firearm without a license. In the within matter, it is evident that Mr.

Lemay was likely to use the loaded handgun to defend himself or to threaten violence. This dynamic is harmful and has the potential to endanger the community and undermine the respect for the law. Consequently, courts must impose sentences that emphasize the purpose and the principles of sentencing, as well as adequately denounce such acts. 40 . In this case, the actions of the accused are not simply something that had the potential to endanger the community.

Through her possession and then provision of a loaded, prohibited firearm to her fiancé, a man who had used a firearm to murder a woman earlier, real danger was meted out. Though it is unclear if the actions of the accused preceded the earlier offence (there is no evidence that it was the same gun used in both cases or when she had given the gun she possessed to Mr. Knight) and, I repeat, that she is not being sentenced for Mr. Knight’s crimes, the simple and indisputable fact is that Mr.

Losier’s possession of the firearm in this case had the real, traumatic and deadly consequences that court’s seek to deter through sentencing. 41 . Given the above, I impose the following sentences: a.

Section 95 Criminal Code of Canada : Possession of a loaded prohibited firearm that is capable of being discharged without being the holder of a license or authorization under she may possess the firearm: i. 3 years in jail consecutive to any other sentence she may be serving less credit for pre-trial custody of 9 days; ii. Pursuant to section 109(1) and (3) of the Criminal Code I make an order that Ms.

Losier be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life as she has a previous prohibition order; iii. I also order the forfeiture of the firearm, pursuant to s. 491 of the C riminal Code , to Her Majesty to be disposed of as the Attorney General directs; iv. This offence is a secondary designated offence under

Section 487.04 of the Criminal Code . I have, pursuant to s. 487.051 , considered whether it is in the best interests of the administration of justice, including the circumstances of the offence and the prior record of the accused, to order that such samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis be taken from Ms. Losier. I find that it is and so order such samples to be taken b. Section 91(3) (

b) Criminal Code of Canada : Possession of a firearm, a .32 calibre Smith & Wesson, without a license under which she might possess it and a registration certificate for it: i. 3 months in jail concurrent to any other sentence imposed and any other sentence she is serving; c. Section 91(2) Criminal Code of Canada : possession of a prohibited weapon, a .32 calibre Smith & Wesson: i. 3 months in jail concurrent to any other sentence imposed and any other sentence she is serving; d.

Section 94 Criminal Code of Canada : being an occupant of a motor vehicle, in which she knew that there was inn the vehicle a prohibited weapon, a .32 calibre Smith & Wesson: i. 1 year in jail concurrent to any other sentence I impose and any other sentence she is serving; ii. Pursuant to section 109(1) and (3) of the Criminal Code I make an order that Ms. Losier be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life as she has a previous prohibition order; iii.

I am satisfied on a balance of probabilities that the Saturn Ion used on the day in question was offence-related property and I order it forfeited, pursuant to s. 490.1 of the C riminal Code , to Her Majesty to be disposed of as the Attorney General directs. 42 . I am waiving the victim fine surcharges for all of the offences based upon the circumstances of Mr. Losier at present and as it will

be after the start of this sentence. 43 . I sought and received the consent of the parties to provide an oral

summary of these reasons. I am filing a full written judgment, proving a copy to the parties and noting that an oral

summary of this judgment has been read into the record. ____________________________ Cameron Gunn, PCJ