R v Smith, 2023 NSPC 65

PROVINCIAL COURT OF NOVA SCOTIA Citation: R v Smith , 2023 NSPC 65 Date: 20231020 Dockets: see table below Registry: Dartmouth Between: His Majesty the King v. Araya Smith Judge: The Honourable Judge Theodore Tax Heard: August 23, 2023, in Dartmouth, Nova Scotia Decision: October 20, 2023 Dockets: 8460 976, 8460977, 8460978, 8460979, 8460980, 8460981, 8460982, 8460983, 8460984 Charge:

Section 221 , 87(1) , 95(1) , 92(1) , 91(1) , 90(1) , 88(1) , 86(1) , 86(2) of the Criminal Code of Canada Counsel: Robert Fetterly, Q.C., for the Nova Scotia Public Prosecution Service Nicholas Fitch, for the Defence Counsel By the Court: [ 1 ] Following a three-day trial, which included a voir dire in relation to a

section 10(

b) Charter of Rights and Freedoms Application, which was dismissed by the Court, Mr. Araya Smith was found guilty of five offences. He was found guilty of criminal negligence causing bodily harm contrary to

section 221 (

a) of the Criminal Code , unlawful pointing of a firearm at another person, contrary to section 87(1) of the Code, possession of a loaded restricted or prohibited firearm without being the holder of an authorization or license to possess that firearm in that place contrary to section 95(1) of the Code, carrying a concealed weapon contrary to section 90(1) of the Code, and the offence contrary to section 86(2) of the Code for the contravention of the regulations under paragraph (para.) 117(

h) of the Firearms Act respecting the storage, handling and transportation of firearms and restricted weapons. [ 2 ] In addition, Mr.

Smith had been charged with three additional offences for which the Court entered a conditional judicial stay under the Kienapple principle in relation to the offences contrary to section 91(1) of the Code in relation to the unauthorized possession of a firearm without being the holder of a license to possess it or in the case of a prohibited firearm or a restricted firearm, without being the holder of a registration certificate for that firearm, the offence contrary to section 88(1) of the Code for possession of a weapon for a purpose dangerous to the public peace or for the purpose of committing an offence, and finally, the offence contrary to section 86(1) of the Code in relation to the careless use of a firearm, prohibited weapon or restricted weapon. [ 3 ] All of the offences before the Court were alleged to have occurred on or about August 13, 2020, at or near Dartmouth, Nova Scotia.

The Crown had proceeded by indictment on all charges before the Court. Positions of the Crown and the Defence:

[4] At the outset, the Crown Attorney noted that the key difference in the positions of the parties is that the Crown recommends thatthe just and appropriate global sentence would, given the sentencing precedents referred to by him, result in a range of incarceration from38 months to 64 months. He notes that Defence Counsel recommends a two-year less one-day conditional sentence order followed bylengthy period of probation based upon the NSCA decisions in Anderson and Wournell as well as the IRCA factors that are present inMr.

Smith’s case. [5] The Crown Attorney also notes that, at the time when these offences occurred, a Conditional Sentence Order (CSO) ofimprisonment in the community would not have been an “available” sanction because of the bodily harm and the lengthy maximumsentences for the most serious offences which were prosecuted by indictment. However, since those Criminal Code provisions wereamended in 2022, he agrees with Defence Counsel that, pursuant to the provisions of

section 11(

i) of the Charter, Mr. Smith is entitledto have the benefit of the lesser punishment. There was no minimum term of imprisonment for the

section 221 offence of criminalnegligence causing bodily harm and the former

section 742.1(

e) of the Code which would have restricted the imposition of a CSO forthat offence, prosecuted by indictment, has been repealed. [6] In addition, with respect to the

section 95 of the Code offence, in R. v. Nur, the Supreme Court of Canada (SCC) determined thatthe minimum sentence provisions of

section 95 of the Code were unconstitutional, and that provision has been removed from theCriminal Code. As a result, he acknowledges that, with the repeal of the former

section 742.1(

e) and (

f) of the Code, a CSO could beordered under

section 742.1 of the Code if the current pre-conditions are met. However, in order to do so, pursuant to subsections 742.1(

a) and (

b) of the Code, the Court would have to impose a sentence of imprisonment of less than two years and be satisfied that theservice of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamentalpurpose and principles of sentencing set out in

section 718 to 718.2 of the Code, [7] It is the position of the Crown that, in setting a range of sentence for these offences, the Court may consider the R. v. Downes(ONCA) factors, and that Mr. Smith should receive some credit for being on very restrictive bail conditions for a significant period aswell as the IRCA factors present in this case. However, he submits that the just and appropriate sentence for Mr. Smith should be wellabove two years in jail and as such, a CSO would not be an “available” option.

Furthermore, the Crown Attorney submits that, inassessing the range of sentence as to whether CSO is available, the Court must determine that the appropriate sentence would be lessthan two years without considering any Downes credit. He points out that R. v. Fice, 2005 SCC 32 , [2005] 1 SCR 742established that the Downes credit cannot be utilized to make a CSO an “available” sentencing option. [8] In support of his sentencing recommendations the Crown Attorney referred to several similar offences committed by similaroffenders in similar circumstances.

He noted that the five offences, for which this sentence must be determined, involved a continuingtransaction, inside a small and confined space of a hotel room where the criminally negligent shot was fired at Mr. Smith. He agrees withDefence Counsel that some of the offences for which Mr. Smith is to be sentenced, may be concurrent with the other sentences imposed.However, he submits that the sentences imposed for the two most serious charges, namely, the

section 95 of the Code offence forpossession of a loaded restricted firearm without being licensed should be in the range of 20 to 40 months and that the appropriate rangefor the

section 221 of the Code offence for criminal negligence causing bodily harm should be in the range of 18 to 24 months and theyshould be served on a consecutive basis. The Crown Attorney submits that the remaining sentences for the other offences may beimposed on a concurrent basis, [9] Based upon sentencing precedents to establish a range of between 38 to 64 months in prison, the Crown Attorney acknowledgesthat the Court will also have to consider the Totality principle to ensure that total sentence imposed by consecutive sentences would notbe excessive.

In addition, the Crown Attorney submits that the Court should apply a Downes credit for the 629 days [about 20.5 months]that Mr. Smith was on house arrest. He recommends that the appropriate deduction from the jail sentence for the Downes credit shouldbe six months.

However, he reiterated that, in doing so, the Downes credit cannot be used to make a CSO an “available” sentencingoption, but it may determine whether the prison sentence should be served in a provincial or federal correctional facility, if the Courtapplied the Totality Principle and utilized the low end of his recommended range of sentence. [10] In addition, the Crown Attorney acknowledges that the Court must consider IRCA factors, and he notes that Mr.

Smith is ayouthful offender, who had a difficult upbringing, involvement of child protective services, removed from his mother’s house and haddifficulties in the foster system and his education, but has made significant changes in his lifestyle with the full support of the Departmentof Community Services and other resources in the community. Even taking all those factors into account and making reasonabledeductions from the recommended low end of the range, the just and appropriate sentence for Mr.

Smith ought to be more than twoyears, which would preclude the imposition of a CSO of imprisonment in the community. [11] The Crown Attorney also seeks the ancillary orders of the mandatory

section 109 of the Code lifetime prohibition and aprimary designated offence DNA order pursuant to

section 487.051(1) of the Code. [12] For his part, Defence Counsel recommends the imposition of a two-year less one day CSO of imprisonment in the communityto be followed by two to three years on probation. It is the position of the defence that based on the comments of the Supreme Court ofCanada in R. v. Proulx, 2001 SCR 61 at para. 22, a CSO incorporates aspects of incarceration, but the sentence being served in thecommunity also achieves restorative objectives of rehabilitation, reparations to the victim and community as well as a promotion of senseresponsibility in the offender.

The punitive aspects of the order may achieve the objectives of denunciation and deterrence. [13] Defence Counsel acknowledges that the Supreme Court of Canada stated that four criteria must be met before deciding toimpose a CSO criteria in Proulx, supra, at para. 46: (1) the offender must be convicted of an offence that is not punishable by a minimumterm of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community wouldnot be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with thefundamental purpose and principles of sentencing set out in sections 718 to 718.2. [14] Defence Counsel notes none of the offences for which Mr.

Smith has been convicted are subject to a minimum term ofimprisonment. In his opinion, the just and appropriate sentence should be a two-year CSO followed by two or three years of probationinstead of the range of imprisonment between 38 months to 64 months as submitted by the Crown Attorney. Obviously, if the Court was

to agree even with the low end of the range proposed by the Crown Attorney, a CSO would not be an “available” sentencing option for Mr. Smith. [ 15 ] However, Defence Counsel submits that, even though the range of sentence proposed by the Crown Attorney by virtue of the Parity Principle would exclude the option of a CSO, he notes that the Crown Attorney has acknowledged that Mr. Smith’s sentence would likely be at the low end of that range. Defence Counsel submits that, given the fact that Mr. Smith’s sentence ought to be at the low-end of the proposed range, when considering that Mr.

Smith is a youthful, first-time offender and by taking into account the very significant IRCA factors, the just and appropriate sentence ought to be a CSO of less than two years if the court imposed concurrent terms of imprisonment for all of the offences before the court. [ 16 ] In terms of the other criteria to be considered with respect to the imposition of a CSO, with respect to the “safety of the community,” Defence Counsel submits that the Supreme Court of Canada int Proulx , supra , at para. 68, stated that this referred to the threat to the community posed by the specific offender.

With respect to this criterion for the issuance of a CSO, Defence Counsel points to the information in the IRCA, the Pre-Sentence Report and supplementary character references as evidence of the tremendous work that Mr. Smith has done to rehabilitate himself in a positive direction since the incident in question. [ 17 ] Defence Counsel also points to the fact that Mr. Smith was able to comply with a lengthy period of house arrest without any breach of those release conditions.

Given the significant progress towards rehabilitation to date, coupled with appropriate conditions in a CSO, he submits that there is a minimal risk of breach or re-offence if the court was to impose appropriate conditions in a CSO to highlight deterrence and denunciation. Defence Counsel submits that the risk of recidivism is minimal and given the significant progress towards rehabilitation that Mr. Smith has made to date, coupled with the resources which have been made available and have been utilized by him, it is unlikely that there would be any re-offence of a harmful nature. [ 18 ] Mr.

Smith has no prior criminal record, is a youthful offender being only 18 years old at the time of the offence and now 21 years old, having complied with very strict release conditions of house arrest for almost three years until those conditions were relaxed to a curfew. The information before the Court highlights the tremendous steps that Mr. Smith has taken to rehabilitate himself and promote a sense of responsibility in him. Defence Counsel submits that it would be counterproductive to his rehabilitation to order a lengthy jail sentence. Mr.

Smith is a young African Nova Scotian male and taking into account all of the circumstances of this case together with the comments of the NSCA in Anderson and Wournell , the just and appropriate sanction in this case is the imposition of a CSO followed by probation. Defence Counsel did not take issue with any of the ancillary orders sought by the Crown. The Circumstances of the Offences: [ 19 ] During the afternoon of August 13, 2020, Mr. Araya Smith, got together with two of his friends, Ethan Tibbo and Cameron Brown. They drove around town and smoked some weed.

Later that afternoon, another friend, Traydell Brown joined them and they continued to drive around town, smoking weed and generally having a “good time.” Mr. Tibbo was driving his car and a little later they picked up Antoine Clarke and his girlfriend, Teirah Slawter. Although they had not made a reservation, their plan was to get a room for the night at the Hampton Suites Hotel located in Dartmouth and drink alcohol and “hang out” together. [ 20 ] Prior to going to the hotel, they had stopped to buy some alcohol. In addition, Mr.

Cameron Brown stated that they had done some “Molly” as a reference to MDMA as well as some “blow” referring to some of the 2 grams of cocaine that he had bought to bring to the hotel room. The Court found that the group arrived at the hotel between 9:15 PM and 9:30 PM on August 12, 2020. The entry to room 503 at the hotel was delayed somewhat to arrange for payment for the room since no one had made a reservation for the room secured by a credit card. [ 21 ] Once the financial arrangements for the room were confirmed, the hotel clerk provided the group with entry cards for room 503.

The video surveillance of the front desk area of the Hampton Suites Hotel and witnesses confirmed that, at about 9:48 PM, Traydell Brown, Antoine Clarke, Ethan Tibbo and Ms. Slawter went up to room 503.

A few moments later, at 9:49 PM on August 12, 2020, the video surveillance evidence of the front lobby area established that Cameron Brown, who was carrying a red box and Araya Smith, entered the elevator to go to room 503. [ 22 ] As a result, the Court concluded that the five young men and one woman had entered their hotel room shortly before 10:00 PM and that, around 12:35 AM on August 13, 2020, a 911 call was made to report that Mr. Cameron Brown had been struck in the back by a single bullet. [ 23 ] In terms of the firearm that fired the single bullet which struck Mr.

Brown, all of the witnesses who testified provided a description of the handgun. Mr. Brown provided a detailed description of the handgun with consistent descriptions of the firearm being provided by Mr. Tibbo and Ms. Slawter. From those descriptions and the evidence of Mr. Parkin, the Court found that the witnesses had described a 22-calibre handgun with a pistol grip with a break action to load ammunition.

The witnesses described the handgun as looking “old” and had rust on it, appeared to have duct tape on the handle and that the part of the gun where the bullets would go rotates. [ 24 ] Based upon the evidence provided by Mr. Brown, Mr. Tibbo, Mr. Clarke and Ms. Slawter, as well as the evidence of Mr. John Parkin, who is the Chief Firearms Officer of Nova Scotia, with description of the length of the barrel, and the calibre bullets, the Court concluded that the firearm which discharged the bullet that struck Mr.

Cameron Brown was either a restricted or prohibited firearm. [ 25 ] Once everyone was in the hotel room, all of the witnesses who testified indicated where people were seated on chairs and who was sitting on the bed in the room. Everyone in the room had been drinking some alcohol and some of the people in the room, according to Mr. Brown, did some cocaine but no one could clearly state how much alcohol was consumed or how much cocaine was consumed by a person prior to Mr. Brown being shot in the back. [ 26 ] Mr.

Brown had stated that he had seen the gun when he had visited Araya Smith at his house in East or North Preston a couple of days prior to the incident. A couple of witnesses who were in Mr. Tibbo’s car on the way to the hotel mentioned that they had seen the gun in Mr. Smith’s possession at that time. In addition, Mr. Brown and Mr. Tibbo had stated that, once they were in the hotel room,

Mr. Smith was the person who initially had brought the gun to the hotel and when it was first shown to the others in the hotel room, it was Mr. Smith who was “playing with it,” and pointing it at people and pulling the trigger as he was pointing it around the room. [ 27 ] Although the handgun involved in this incident was never located, based upon the direct and circumstantial evidence, the Court concluded that Mr.

Smith had possession of the handgun and that he was the person who concealed it and transported it into and out of the hotel room without taking the proper measures for handling and transporting that firearm.

In addition, based upon the direct evidence which the Court has accepted as well as circumstantial evidence, the Court concluded that, at all material times, that Araya Smith was the person who was “playing” with what the Court found to be a restricted or prohibited firearm, and that he was the person who was pointing the firearm at people in the room, pulling the trigger and that he had pulled the trigger which fired the single bullet that struck Cameron Brown in the back. [ 28 ] The Court concluded that the evidence had established that Mr.

Araya Smith had failed to properly check to determine whether the firearm was unloaded and safe to handle in the circumstances. In the final analysis, the Court concluded that Mr. Smith’s acts and/or omissions showed a wanton and reckless disregard for the life or safety of Cameron Brown and potentially the other people who were present in the hotel room at the same time.

The Court also concluded that those acts or omissions of Araya Smith had caused the bodily harm to Cameron Brown and that they were a marked and substantial departure from the standard of care of a reasonably prudent firearms handler who had been trained and licensed to handle restricted firearms in the accused’s circumstances, including what they knew or ought to have known and especially in the circumstances of a group of people being in a relatively small interior space of a hotel room. [ 29 ] Given the fact that the Court concluded that the handgun was concealed when it was brought into and out of the hotel room, the Court found that, with respect to the handling of the firearm, there was no evidence that it had been stored separately from its ammunition or that it was transported with a trigger lock for the firearm or that it was brought to the hotel room in a secure and approved type of container.

The Court found that all those facts and circumstances were established by the direct evidence of the witnesses that none of those items were seen by anyone when the gun was pulled out and “played with” by Mr. Smith and by the lack of any visible secured container when Mr. Smith entered the hotel with Mr. Brown on the hotel’s video surveillance evidence or when he left the hotel after Mr. Brown was shot in the back. [ 30 ] A few moments after Mr. Brown was shot in the back, Mr. Tibbo, Traydell Brown and Araya Smith left the hotel room.

Video surveillance evidence from the hotel confirmed that Araya Smith left the hotel room just after 12:39 AM on August 13, 2020, and showed him speaking on a cell phone held in his right hand. The police officer who introduced that video surveillance clip pointed out that he believed there was a “heavy object” in the area of his right hip or right pocket, covered by the T-shirt that Mr. Smith was wearing, but he could not confirm whether that “object” was a firearm. As mentioned previously, the firearm involved in this incident was never recovered to be analysed by the police. [ 31 ] Fortunately, Ms.

Slawter and Antoine Clarke stayed in the hotel room with Mr. Brown until police and emergency medical personnel arrived about 10 minutes after the 911 call. Mr. Brown had been placed on a couch face down and they were applying pressure to the area of the bullet wound to ensure that he did not “bleed out.” Once police officers arrived in the room, they took over applying pressure with towels until the paramedics arrived. Mr.

Brown was then transported to the hospital and seen immediately by the trauma team in the emergency department. [ 32 ] The factual admissions made during the trial confirmed that Cameron Brown was shot in his left scapula (shoulder blade) with the bullet discharged from the handgun, which had not been located. The bullet entry wound resulted in damage to the cervical spine of Mr. Brown at vertebrae C5, where there was a markedly commuted fracture of the articular process and lamina on the left.

An x-ray had shown that bullet fragments spread anteriorly and that there was moderate to severe narrowing at the C5 and C6. At the C6, there was also a comminuted fracture of the articular process and lamina on the left and x-rays revealed what was believed to be metal bullet fragments in that area. It was also noted that there had been displacement of the spinal cord to the right. [ 33 ] The parties had agreed that those injuries and Mr. Brown’s residual limitations met the definition of “bodily harm” in the Criminal Code . Victim Impact Statement: [ 34 ] During his trial evidence, Mr.

Cameron Brown outlined the serious nature of the injuries suffered as a result of the gunshot. He described the significant impact on his mobility and ability to work for a significant period and, during his trial evidence, he stated that some impacts continue. He stated that the bullet entered the left side of his shoulder blade, then apparently ricocheted into his neck, and almost paralyzed him. Mr. Brown advised the Court that the bullet itself is still in his C5

section and that any surgery to remove it, could result in a high risk of death. [ 35 ] Mr. Brown stated, during his trial testimony, that he had to re-learn how to walk, talk, eat, jog and use the washroom during his period of time in the hospital and at a rehab centre. In total, Mr. Brown stated that he had spent two months in hospital and an additional 3 to 4 months in a rehab centre to complete his recovery. He also described that, with respect to re-learning how to talk, the bullet had struck him in the neck and put his vocal cords in shock.

In terms of relearning how to eat and feed himself, he stated that he initially had difficulty even getting out of bed and using his fingers to feed himself. Circumstances of the Offender: [ 36 ] In the Pre-Sentence Report (PSR) prepared on April 24, 2023, the Probation Officer noted that Mr. Smith is 21 years old, having been born on November 16, 2001. He is currently single and living in Bridgewater Nova Scotia attending the carpentry program at the Nova Scotia Community College. The Court notes that the charges for which Mr.

Araya Smith has been found guilty occurred on or about August 13, 2020, at which time he was 18 years old. The Probation Officer notes that Mr. Smith identifies as an African Nova Scotian (ANS) and I note that an Impact of Race and Culture Assessment Report was requested and prepared for him. [ 37 ] The Probation Officer noted that Araya Smith has never met his biological father or one of his brothers and has only met the

other brother on one occasion. He does share a close relationship with his sister, and they speak daily. In terms of his mother, Mr. Smith described their relationship as “awkward” and although he speaks to her on a weekly basis but described it as “small talk.” [ 38 ] Mr. Smith stated that his mother’s substance abuse resulted in him being taken into care by the Department of Community Services (DCS) as a young child. There were several placements and while he was in care, he was the victim of both physical and emotional abuse by foster parents.

Since moving to the Bridgewater Nova Scotia area in August/September 2022, he has been living independently. He is not involved in any current relationship and has no children. [ 39 ] The Probation Officer also contacted Ms. Jennifer Sewell, who has been Mr. Smith’s long time DCS social worker. She confirmed that Mr. Smith was initially left in the care and custody of his mother for a period of time, but then the Children’s Aid Society became involved with his mother prior to his birth and then became re-involved with her after his birth. In October 2006, the Agency was granted permanent care and custody of Mr.

Smith and Ms. Sewell has been his social worker since 2007. She noted that Mr. Smith was in four long-term foster family placements while in care, typically with his sister. [ 40 ] Ms. Sewell confirmed information provided by Mr. Smith with respect to allegations of abuse in foster placements. She described Mr. Smith as a prosocial young man who has a lifelong connection to the church, attended Sunday school until age 18. She also noted that in grade 9, Mr. Smith received a “Citizenship Award” at his school and was an active volunteer at the North Preston community centre.

He played basketball recreationally and was on the high school team. [ 41 ] Ms. Sewell stated that at the beginning of the pandemic, Mr. Smith was residing in a foster home with an elderly caretaker and at that time, he did not fully appreciate the risk of Covid-19 on elderly people with compromised health. As a result, his placement broke down and he found himself without the housing, structure, or stability that he had previously enjoyed. Then, she learned of Mr. Smith’s charges, and she was “stunned” by his arrest as the events were “completely out of character.” [ 42 ] Ms. Sewell confirmed that Mr.

Smith began working with Ms. Clara Coward in September 2020, initially meeting twice weekly to engage in therapy and working to address childhood trauma and how his narrative had impacted his current situation. Ms. Sewell added that, at the time of her interview with the Probation Officer she was not sure if Mr. Smith was still attending counselling sessions with Ms. Coward. [ 43 ] In addition, Ms. Sewell advised the Probation Officer that Mr. Smith is actively engaged as a participant in the LOVE [leave out violence] program and is part of the leadership team.

He has a personal understanding of the impacts of gun violence as he knows people have been victims of gun violence and has met on several occasions with Quentrel Provo the founder/CEO of the Stop the Violence [Spread the Love] program. Mr. Smith has also worked with the Nova Scotia Brotherhood Initiative and received support and services from that organization. She also advised that Mr. Smith has been compliant with medication prescribed by his clinical physician, Doctor Milne and has responded well to the medications. [ 44 ] In terms of Mr.

Smith’s education/training, the Probation Officer noted that he is presently enrolled as a student at the Nova Scotia Community College, Lunenburg campus where he is studying carpentry. Mr. Smith had passing marks and was about to start a work placement. He was also working on a part-time basis and planned to work over the summer for additional funds but noted that his financial needs were provided by DCS. [ 45 ] In terms of his health and lifestyle, Mr.

Smith stated that he was not taking any medication for any physical health concerns, but in terms of his mental health, he had been diagnosed with ADHD, depression, anxiety, and insomnia. He has been prescribed medication for his anxiety, depression and as a sleep aid. He reported seeing a therapist, Ms. Clara Coward and remains connected to the Love Program. The Love Program is designed to provide participants with greater resilience, heighten skills and the confidence to be leaders. [ 46 ] Mr.

Smith reported that he first used alcohol when he was about 13 years old and acknowledged that his use of alcohol has been problematic in the past. He stated that his doctor advised him that he was damaging his liver and he was encouraged to reduce his intake or abstain from alcohol to heal his liver. He began using drugs around the start of high school and had experimented with substances including cocaine, Molly, Xanax, psilocybin mushrooms, Percocet, codeine and marijuana. Mr. Smith reported that he is no longer using alcohol or drugs. [ 47 ] The Probation Officer also contacted Mr. Smith’s therapist, Ms.

Clara Coward who stated that she has worked with him for several months and that, in her opinion, he has done “extremely well” given his narrative and is moving forward and navigating life. She recommended that Mr. Smith continue to engage in therapy, live outside the HRM and attend school would be of great benefit. [ 48 ] The Probation Officer noted that Mr.

Smith had only one involvement with the criminal justice system and received a conditional discharge on September 23, 2021, for the offences of causing disturbance by fighting, screaming, shouting, etc. contrary to section 175(1)(A)(1) of the Criminal Code and uttering threats to cause death or bodily harm charge contrary to

section 264.1(1)(

a) of the Code . The probation duration was 12 months and the Probation Officer supervised Mr. Smith during that period. She notes that the offences were committed while he was under the influence of alcohol, there were no concerns with respect to his reporting and he was engaged in programming (LOVE Program) as well as private therapy and focused on his educational goals. [ 49 ] The Probation Officer noted that during the probation period, there were some concerns about Mr. Smith’s peers and associates, but they were addressed by his move outside the city. The Probation Officer stated that Mr.

Smith continues to have the continued support of his DCS social worker (Ms. Sewell), he has relocated outside the HRM, transitioned to independent living and is on track to graduate from post-secondary education. She also noted that neither Mr.

Smith nor his social worker reported any concerns regarding use of substances and that while he was awaiting trial and supervised on a release order with strict conditions of house arrest, there were no subsequent charges. [ 50 ] As a result, if community supervision was deemed appropriate, conditions to abstain from alcohol and/or drugs would be appropriate as well as conditions to obtain or maintain an education program and/or employment. The Probation Officer also recommended that Mr. Smith would benefit from continuing to engage in therapy. She also opined that Mr.

Smith would be “suitable for further period of community supervision” with strict conditions including electronic monitoring.

Impact of Race and Cultural Assessment (IRCA) Report: [ 51 ] In addition to the information contained in the Pre-Sentence Report prepared by the Probation Officer, Defence Counsel requested that an IRCA report on behalf of Mr. Araya Smith be prepared in this case. The IRCA report, submitted to the court on April 27, 2023, outlines several systemic, cultural and race factors that the Court should consider. The IRCA report also outlines the individual impact of those factors on Mr. Smith, which must be taken into consideration. [ 52 ] The IRCA report states that Mr.

Smith’s social, cultural and community roots strongly influenced his racial identity development. He grew up in the large African Nova Scotian (ANS) community of North Preston, but at age 5, he was removed from the care of his biological parents and was placed in the care of the Department of Community Services (DCS). During his time in care, he did not have successful and stabilizing placements due to abuse and discord in those placements. Mr. Smith had abusive or negative foster home and school experiences until he was about 15 years old and placed in a new foster placement.

He was in that home for approximately five years. [ 53 ] The authors of the IRCA report note that Mr. Smith did not have consistent and meaningful community connections within the ANS context during that time and that impacted his capacity to connect with social supports, cultural literacy, and experience positive racial identity development, Mr. Smith’s DCS placements were in low-income housing developments located in central Halifax.

That community has had several social economic challenges that have contributed to a cycle of intergenerational trauma and is considered an “at risk or vulnerable” community to criminogenic factors, according to the authors of the IRCA report. [ 54 ] The authors also indicate that it is not unusual for children who were born and raised in such environments to struggle with attachment issues due to their inability to have their needs met. Ms. Jennifer Sewell, who has been Mr. Smith’s DCS social worker since age 5, confirmed that Mr.

Smith attended therapy to address attachment issues when he was younger. [ 55 ] More recently, Ms. Clara Coward, who is his ANS clinician and has worked with Mr. Smith since the summer of 2021, reported that Mr. Smith presented with an attachment disorder as well as PTSD. She did trauma therapy with him because he became “emotionally dysregulated” after receiving the charges. In addition, it was also Ms. Coward’s clinical opinion that, due to the level of trauma that Mr.

Smith has endured over his lifetime, he has not been able to transfer what he has learned in therapy into his daily life as he is always in “survival mode.” The IRCA authors state that, based upon their research into the impact of race and trauma, it will often destabilize a person and they may relapse or engage in regressive behaviours and not be able to integrate previously prosocial and supportive skills. [ 56 ] The IRCA authors also note that Mr. Smith’s struggle with attachment issues has meant that he only engages with others on a “surface level” and how the relationship can meet his needs. Mr.

Smith has struggled throughout his life to have appropriate relationships with others including caregivers, peers, family members, partners as well as professionals. Ms. Coward also advised the authors that another symptom of Mr. Smith’s attachment disorder is a “reactive attachment disorder” (RAD) which she described as Mr. Smith’s pattern of “indiscriminate sociability” and his inappropriately familiar choices in attachment figures within the RAD spectrum. [ 57 ] During his last, relatively long five-year DCS placement, the authors note at pages 9 to 10, that Mr.

Smith reported that this was when he began heavy drug use because everyone else was doing it. He also described couch surfing and contacting his biological mother who allowed him to sleep on the floor of her studio apartment from time to time. He also stated: “I started robbing people, stealing, selling drugs and there was a lot of fighting. By this time, I was smoking weed and cigarettes, and ingesting coke, Xanax, Molly and Percocet. I felt it was the only way I could survive. I had no one to tell me what to do. I was not in school, and mom kicked me out. I was then paying for hotels.” [ 58 ] Mr.

Smith added that this is when he learned that living on the streets “was not easy and you are always living in fear. You need a gun just to feel safe.” He advised that having access to drugs allowed him to earn money, but it also provided him with the resources to use and contribute to an increase in his own addictions. He stated that when he was high on the streets, he had a false feeling of “being cool” but when he was not high, he would become stressed of where the next meal would come from and slept in ditches on many nights. [ 59 ] In his interview with the IRCA authors, Mr.

Smith reported “being remorseful” for his actions and described himself as being a “generally good person” who does not seek out to intentionally harm others. [ 60 ] Mr. Smith is currently living in the Bridgewater, Nova Scotia area with a foster parent. He was able to complete his GED and is now attending the Nova Scotia Community College in his second semester in the carpentry program. He had been attending bi-weekly therapy sessions with Clara Coward to gain insight into his challenges but paused that counselling as he felt his life was “more stable.” [ 61 ] At the same time, Mr.

Smith is being followed by Doctor Milne, with the Brotherhood Association and following a medication regime that is treating his anxiety/depression and insomnia. Ms. Sewell confirmed that the medication regime and therapy have allowed Mr. Smith to be able to set goals and to follow through on them. She also confirmed that Mr. Smith is now in the post-care program with DCS and Ms. Sewell added that she will continue to support him through this process. It was also noted in the IRCA report that Mr.

Smith reported no alcohol or drug use at this time. [ 62 ] The IRCA report also refers to the “Impacts of Adverse Childhood Experiences” and points out that exposures to toxic stress have been proven to have a strong correlation to poor outcomes in the lives of children and youth in areas of social emotional development. Mr. Smith reported, at length, about his high conflict relationship with his caregivers that involved poverty, substance use and emotional/physical abuse, all of which having an immense impact on his emotional growth.

He reported that his biological mother struggled with substance abuse and that he had been exposed to violence in his home and being exposed to domestic violence within his foster placements. [ 63 ] Mr. Smith also reported being the victim of abuse and violence while he was in the care of child welfare by various foster parents, primarily his “mother figures” which has resulted in feelings of loneliness and worthlessness. Ms. Sewell confirmed that Mr. Smith had three foster home placements terminated because of ongoing harm that he suffered while in the agency’s care until being

placed in his fourth foster home placement. In those early placements, Mr. Smith had described harsh physical abuse and the IRCA authors highlight the potential causal impact of those adverse childhood experiences on Mr. Smith while in the care of the Department of Community Services. [ 64 ] The IRCA report (at p.13) also covers the Impact of Community Violence and Substance use and racial identity development. They note that recruitment and grooming of young black males into the criminal culture are well known within the at-risk communities in the HRM. Mr.

Smith described witnessing this at various developmental stages – trafficking of drugs, robberies, community and interpersonal violence. Mr. Smith reported that, once he became homeless, he started robbing people, jumping people stealing, selling drugs and being involved in a lot of fighting and added: “I felt like it was the only way to survive. No one to tell me to be good or to go to school.” [ 65 ] The authors note that Mr. Smith has been exposed to “chronic criminogenic psychosocial subculture” within the ANS community and larger community.

He has also been exposed to the vulnerable community features of black male identity development such as: black men abandoning their children, abusing their family, selling drugs, stealing, committing or being murdered and going to jail. Mr. Smith did not always have pro-social formal or informal supports available to him and began questioning his own value as a black man and seeing the crime cycle played out in the ANS community.

They note that this “internalized racism” has not only affected his thoughts and perceptions of himself as a black man, but also his self-worth and cultural esteem. [ 66 ] The IRCA report also highlights the prevalence of gun violence in the ANS community. Mr. Smith and Ms. Sewell stated that Mr. Smith has known many of the young black men who have died due to gun violence. As a result, Mr. Smith discussed his fear of being out on the streets on his own and the need to always be on alert, and as he had mentioned before, needing a gun to survive.

He also stated that since age 14, he has smoked “weed” to cope with the stressors in his life, and continued to use marijuana as a coping strategy which helped him address his anxiety and to relax, as well as dampening his thoughts of helplessness. [ 67 ] Ms. Sewell, who has been Mr. Smith’s DCS social worker since he came into care at age 5, reported that Mr. Smith’s last placement in North Preston in 2015 was the best for him as he felt accepted in the home, was going to school, playing basketball and working at the rec centre until Covid hit.

It was then that the placement broke down as the foster mother was afraid that she would catch Covid because she did not believe Mr. Smith was respecting the restrictions. At the same time, he contacted his biological mother, started using drugs more aggressively and became involved in street life. Ms. Sewell stated that, once Mr. Smith lost his home, that is when his life spiraled out of control. [ 68 ] However, Ms. Sewell added that, since these charges, Mr. Smith has done very well “stabilizing himself” and was able to complete grade 12 while on house arrest and then graduate.

Since then, he has moved to Bridgewater, Nova Scotia and has stated that he wants to remain in that area once he completes the carpentry program. Ms. Sewell stated that Mr. Smith has “gained a lot of insight” and that she will continue to support him as much as she can. [ 69 ] In the final analysis, the authors of the IRCA report state that, should the Court consider Mr. Smith eligible for a non-custodial sentence, they would recommend: 1. That Mr. Smith reestablish mental health support with Clara Coward who has insight into the unique cultural and criminogenic factors that have contributed to Mr.

Smith’s life today. 2. That Mr. Smith attend treatment for his substance use; and 3. That Mr. Smith continue to attend his academic programming with the continued support of DCS. Supplementary Character References/Letters of Support [ 70 ] The Court received a character reference for Mr. Smith, dated July 17, 2023, from Mr. Finley Tolliver, who is the Senior Program Supervisor of Love Nova Scotia. He first met with Mr. Smith four years ago through his social worker, Ms. Sewell. She referred Mr. Smith to Mr. Tolliver and Mr.

Smith was placed in a Media Arts Program (MAP) to help youth learn to communicate creatively and constructively. During Covid, the program moved online instead of being offered at King’s College and that assisted Mr. Smith as he was, at that time, on house arrest. [ 71 ] Mr. Tolliver stated that, over the course of an eight-month period, Mr. Smith participated in every session and became a leader in group discussions, being open and honest about sharing his lived experiences. Mr. Tolliver, Ms. Sewell and the MAP staff believed that Mr.

Smith represented an “ideal participant and success we strive for in our programming” as he attended programming while he was on conditions of house arrest. As part of the programming in partnership with Hope Blooms, Mr. Smith increased his self- confidence which further helped him explore his positive path forward. [ 72 ] Mr. Tolliver stated that Mr. Smith has been placed on his continuing care list and they have continued to share stories about their families and situations that they faced as young black males and how they associated themselves to come through those barriers. Mr. Tolliver noted that Mr.

Smith has made efforts to build community around him to support his life goals, with the support of Love NS. Mr. Tolliver concluded that Mr. Smith is on a “positive path forward” and he hopes that his journey is supported to continue. [ 73 ] Defence Counsel also filed a mental health and addictions assessment form prepared by Dr. Jacob Cookey in January 2021 which was forwarded to Mr. Smith’s physician (Dr. Milne). Mr. Smith had been referred for the psychiatric assessment through the Nova Scotia Brotherhood Initiative (NSBI). Doctor Cookey noted that Mr.

Smith, was 19 years old at that time, and had a history of abuse while being in foster care and experienced psychiatric symptoms including depression and anxiety for some time. He added that Mr. Smith had experienced a lot of trauma-related symptoms later in his childhood and early teenage years due to being taken from his parents as a toddler at age 3. However, Dr. Cookey noted that Mr. Smith has been connected with a therapist for trauma since 2015 and his trauma related symptoms have reduced significantly. [ 74 ] With respect to Mr.

Smith’s use of substances, the report notes that he had reported smoking 3 to 4 grams per day of cannabis

and occasionally hash but quit completely since August 2020. In terms of alcohol consumption, Mr. Smith stated that he used to drink two or three times per week of up to 1.5 quarts of hard liquor but quit completely since August 2020. The report notes that Mr. Smith experienced significant withdrawal symptoms for some time. Mr. Smith also reported taking Xanax, up to three pills per day for several months but quit completely in the July/August 2020 timeframe. In addition, Mr.

Smith reported taking about 2 grams of MDMA on weekends for a few weeks during the summer of 2020, but none since then. [ 75 ] With respect to the consumption of alcohol and other substances, I find that, based upon this information, Mr. Smith completely ceased consuming alcohol and other substances following the incident on August 13, 2020, which resulted in the charges before the Court. [ 76 ] In the final analysis, Dr.

Cookey concluded that there were diagnoses for a major depressive disorder, with anxious distress, in remission, an alcohol use disorder in early remission and a possible previous PTSD which was also currently in remission. He recommended continuing the current medication prescribed by Dr. Milne and noted that Mr. Smith is “quite a positive young man, with very good supports in place and has remained abstinent from all substances of abuse since August 2020.” Dr. Cookey concluded that Mr.

Smith is currently expressing motivation to make positive changes in his life and if he remains in therapy, connected with his current supports and motivated, “he would have quite a positive long-term prognosis.” [ 77 ] Defence Counsel also submitted a report from Clara Coward, who provided clinical therapeutic services to Mr. Smith between August 2020 and December 2022. After meeting with Mr. Smith, she noted that he presented with symptoms of post-traumatic stress disorder and attachment disorder. During their sessions, she provided psycho-educational trauma for Mr.

Smith but indicated that he still had some “unhealed trauma” that can present itself as Mr. Smith being in “survival mode.” [ 78 ] During their sessions, Ms. Coward noted many resiliency traits within Mr. Smith’s personality and presentation. As an example, she noted that he finished his first year at NSCC and was determined to continue with his goals. In order to reach the goals that they had identified, which included reducing the risk of reoffending and the risk of violence among other pro-social goals, she recommended that Mr.

Smith continue with therapeutic counselling. [ 79 ] A further letter of support was received from Dr. Ron Milne, dated July 20, 2023, who has been seeing Mr. Smith as a patient since 2020 through the Nova Scotia Brotherhood, a black man’s health initiative which provides medical, social, and psychological supports to black men. Dr. Milne noted that Mr. Smith comes from a most dysfunctional and social deprived background, but to his credit, he has turned his life around, changed the people who he associated with and has abstained from drug use.

In addition, he is upgraded is education and is currently studying to obtain a trade certificate. [ 80 ] Dr. Milne confirmed that Mr. Smith has suffered from a depressive mood disorder as well as insomnia but has been treated with antidepressant medications. He also referred to the psychiatric assessment which was done and found “no antisocial disorders or serious mental elements.” He has been compliant with the treatment and his mood and sleep have stabilized. Dr. Milne concluded that Mr.

Smith “has reformed himself and taken steps to become a productive member of society” and that he will continue to treat and support Mr. Smith on that journey. [ 81 ] In addition, Ms. Jennifer Sewell of DCS provided a letter of support dated July 24, 2023. In her letter, she related the history of her involvement with Mr. Smith which has been detailed in the Pre-Sentence Report as well as the IRCA report. She states that, prior to Covid 19, Mr.

Smith was on track to graduate from Auburn Drive High School but did not fully appreciate the impact of Covid on older individuals with compromised health situations and he left his foster home. As a result, Mr. Smith struggled with housing, structure and stability for the first time in his life. In her opinion, this resulted in him making poor choices and the criminal charges. [ 82 ] After Mr. Smith was charged with current offences, DCS offered him a “Place of Safety” which was a staffed situation where Mr. Smith was placed and was able to follow all the court-ordered conditions. Mr.

Smith followed the rules and expectations of the court and staff and while he was on house arrest at the “Place of Safety,” he reflected on his current situation and thought about the future. He also developed new coping skills and ways to manage stress and support good mental and physical health. At the same time, Mr. Smith engaged in counselling and therapy with Ms. Clara Coward on ways to mitigate any future risk to himself and others. [ 83 ] Once Mr.

Smith turned 19 years old, he was no longer a child in care and therefore not eligible to remain with the continued support at the “Place of Safety.” DCS arranged for another placement which went very well, and Mr. Smith fully complied with his release conditions. In September 2021, Mr. Smith moved out of that placement and into a basement apartment at his former “Place of Safety” where he continued his studies at NSCC. [ 84 ] Ms. Sewell also noted that Mr. Smith met regularly with the Nova Scotia Brother Initiative to receive supports and met regularly with their physician, Dr.

Milne to support his mental health and well-being. During this time on house arrest, Mr. Smith completed his remaining high school credits both online and in person by December 2020. Following that, he was accepted into an academic and career connections program for September 2021 at NSCC and completed the upgrading needed for the program by the spring of 2022. In the Fall of 2022, Mr. Smith was accepted into the carpentry course at NSCC Lunenburg campus and he then moved to the Bridgewater area for that program. [ 85 ] Ms. Sewell concluded by noting that Mr.

Smith has met frequently with members of the LOVE program [leave out violence] and noted that he has been personally impacted by gun violence due to his relationship with several victims. He is well aware of the impact gun violence hands-on individuals, families and his community. [ 86 ] In conclusion, Ms. Sewell noted that Mr. Smith was very appreciative of the opportunity to be in the community on house arrest as it gave him a second chance to get his life together.

He focused on future goals, completed grade 12, the academic career and connections courses at NSCC and was then one credit short of completing the carpentry certificate at the college. She reiterated that DCS remains committed to supporting Mr. Smith while he completes the course and while he successfully transitions from the care of the department. Ms. Sewell concludes that, since August 2020, Mr. Smith has consistently demonstrated a genuine desire and commitment to change as he embraces all the support that he has been offered.

[87] All of the above-noted letters of support or character references were filed as Exhibit 1 during sentencing submissions ofcounsel on August 23, 2023. Purposes and Principles of Sentencing: [88] He determination of a just and appropriate sentence is a highly contextual and individualized process which depends upon thecircumstances of the offence and the offender: see R. v. Lacasse, 2015 SCC 64, at para.1.

The trial judge is required to carefully balancethe societal goals of sentencing against the moral blameworthiness of the offender and the gravity of the offence, while at the same time,considering the victim or victims and the needs of and current conditions in the community: R. v M. (C.A.), (SCC),[1996] 1 SCR 500 at paras. 91-92. [89] The fundamental purposes and principles of sentencing are set out in sections 718 to 718.2 of the Criminal Code.

Thosefundamental objectives of sentencing are to protect the public and to contribute to respect for the law and the maintenance of a safesociety, by having one or more of the following goals: denunciation, general and specific deterrence, separation from society wherenecessary, rehabilitation of the offender, promotion of respons,ibility in offenders and acknowledgement of the harm done to victims andto the community. [90]

Section 718.1 of the Criminal Code sets out the fundamental principle of proportionality and sentencing. A sentence must beproportionate to the gravity or seriousness of the offence and the degree of responsibility or moral blameworthiness of the offender. Inother words, the severity of the sanction for a crime should reflect or be proportionate to the seriousness of the criminal conduct. [91] Pursuant to

section 718.2 of the Criminal Code, the Court that imposes a sentence is also required to consider several othersentencing principles in determining the Just and Appropriate sanction.

Section 718.2(

a) of the Code requires the Court to consider theaggravating and mitigating circumstances which may either increase or reduce the appropriate sentence. [92] The parity principle found in

section 718.2 (

b) of the Code requires the Court to consider that the sentence imposed should besimilar to sentences imposed on similar offenders for similar offences which were committed in similar circumstances. On this point, Inote that it is often difficult to find those similar cases, as the sentencing considerations in any case are highly individualized and basedupon the circumstances of the offence and on the circumstances of the offender. [93] In addition, in sections 718.2 (

d) and (

e) of the Code, Parliament has reminded sentencing judges that the offender should notbe deprived of liberty if a less restrictive sanction may be appropriate in all the circumstances. Furthermore, the sentencing judge isrequired to consider all available sanctions, other than imprisonment that are reasonable in the circumstances, with particular attention tothe circumstances of aboriginal offenders.

Aggravating and Mitigating Circumstances: [94] I find that the Aggravating Circumstances are as follows: • Multiple instances of “playing” and pointing the firearm at people in a confined space, with a risk of discharge, while under theinfluence of alcohol and other substances, • There were very significant and long-lasting injuries to Mr.

Brown – s.718.2(a)(iii.1) of the Code, • Flight from the scene, taking the handgun away from the scene and leaving it in an unidentified location, representing a continuedpublic risk – see Wournell (NSCA) at para. 89 with respect to a sawed-off .22 calibre rifle which was ultimately recovered by the police. [95] I find that the Mitigating Circumstances are as follows: • The youthfulness of the accused, being an 18-year-old African Nova Scotia male at the time of the incident before the Court. • The lack of any pre-existing youth or adult criminal convictions, • Significant efforts at rehabilitation since being charged, which have included education, counselling, job skills and lifestylechanges, • No further involvement in the criminal justice system while on restrictive interim release conditions for a significant period oftime, • An expression of remorse by Mr.

Smith as noted by the authors of the Impact of Race and Cultural Assessment (IRCA), • When offered an opportunity to speak at the sentencing hearing, Mr. Smith accepted full responsibility for his actions andexpressed sincere regret and remorse for the injury to one of his best friends, • Since the incident, Mr. Smith also confirmed his efforts to change his life in a positive direction, through therapy, connecting withall available supports, completing his high school education and attending NSCC’s carpentry course to become a red-seal carpenter.

Guidance of NSCA Cases Anderson and Wournell on Sentencing Decisions [96] The Nova Scotia Court of Appeal in its Anderson decision in 2021 and more recently in R. v. Wournell, 2023 NSCA 53 [issuedon July 27, 2023] had provided “guidance” for sentencing decisions which involved an African Nova Scotian offender. In Anderson,supra, which was a Crown appeal to the order of a conditional sentence for firearms offences related to his possession of a loaded .22calibre revolver, at paragraphs 112 to 124, Derrick JA highlighted how IRCA’s should inform the sentencing of African Nova ScotianOffenders.

[ 97 ] In particular, in Anderson , supra , Derrick JA stated, at para. 114, that taking account of IRCA evidence insures relevant systemic and background factors are integrated in the crafting of a fit sentence, one that is proportionate to the gravity of the offence and the moral culpability of the offender. [ 98 ] The Wournell decision related to a defence appeal with respect to a jail sentence imposed for possession of a prohibited firearm, being a .22 calibre sawed-off rifle together with readily accessible ammunition contrary to section 95(1) of the Code , unlawful possession of an airsoft gun for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to section 88(1) of the Code and being an occupant of a motor vehicle in which he knew there was a firearm, the 22 calibre rifle, contrary to section 94(1) Code .

In Wournell , Justice Derrick noted, supra , at para. 62, that the “guidance” provided by the Court of Appeal with respect to the “application” of an African Nova Scotian offender’s specific information and circumstances where a conditional sentence is an “option in play” is found in the Anderson decision at paras. 126-163. [ 99 ] Furthermore, Derrick JA stated, in Anderson , supra , at para. 118 that the “method” employed for sentencing African Nova Scotian offender should carefully consider the systemic and background factors detailed in an IRCA.

It may amount to an error of law for a sentencing judge to ignore or fail to inquire into these factors.

A judge does not have to be satisfied that a causal link has been established “between the systemic and background factors and the commission of the offence.” These principles parallel the requirements in law established by the Supreme Court of Canada in relation to Gladue factors in the sentencing of indigenous offenders. [ 100 ] The Court of Appeal noted, in Anderson , supra , at para. 121, and reiterated in Wournell , supra , at para. 63 , the need for the sentencing judge to employ that social context information supplied by an IRCA to assist in: • contextualizing the gravity of the offence and the degree of responsibility of the offender. • Revealing the existence of mitigating factors or explaining their absence. • Addressing aggravating factors and offering a deeper explanation for them. • Informing the principles of sentencing in the weight to be accorded to denunciation and deterrence. • Identifying rehabilitative and restorative options for the offender and appropriate opportunities for reparations by the offender to the victim and the community. • Strengthening the offender’s engagement with their community. • Informing the application of the parity principle. “Courts must ensure that a formulistic approach to parity in sentencing does not undermine • the remedial purpose of

section 718.2 (e).” [ 101 ] In Anderson , supra , at para. 123, the Court of Appeal added that in explaining their sentences, judges should make more than passing reference to the background of an African Nova Scotian offender. It may not be enough to simply describe the offender’s history in great detail. It should be possible on appeal for a court to determine, based on the record or the judge’s reasons, that proper attention was given to the circumstances of the offender.

Where this cannot be discerned, appellate intervention may be warranted. [ 102 ] In Wournell , supra at para. 105 since the imposition of a CSO was an “available” option, after examining the risk of re-offence and the gravity of damage should reoffending occur in accordance with the criteria set out in the SCC’s Proulx decision, the Court of Appeal determined that the appellant’s risk of reoffending can be managed in the community under a conditional sentence order.

Derrick JA added that the Court was also satisfied that, as is statutorily required, a conditional sentence order in this case will serve the fundamental principle of proportionality set out in

section 718.1 of the Criminal Code . [ 103 ] Justice Derrick added in Wournell , supra , at para. 105 , that the gravity of the appellant’s offence and his moral culpability for it must be assessed in the context of historic factors and systemic racism.

Therefore, the Court of Appeal’s determination in re-sentencing the appellant required taking “into account the impact of that social and economic deprivation, historical disadvantage, diminished and nonexistent opportunities, and restricted options that may have had on the offender’s moral responsibility.” In the footnote to this paragraph, Justice Derrick notes that the same comments were made in Anderson , supra , at para. 146. [ 104 ] Furthermore, Derrick JA added in Wournell at para. 106 , comments which were also made in Anderson at para. 154 that sentencing principles of deterrence and denunciation can also be served by the imposition of a “properly crafted conditional sentence with appropriate conditions.” Then, referring to para. 41 from the Proulx decision, Justice Derrick added that a CSO may even be as onerous or more onerous than a jail term particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community while living in the community under tight controls. [ 105 ] In Anderson , supra , at para. 155, Derrick JA stated that should the offender fail to abide by the Court imposed conditions or reoffend, the consequences of breaching a conditional sentence are potent - the “real threat of incarceration.” [ 106 ] In Anderson , supra , at para. 160, the NSCA added that denunciation and deterrence – general deterrence in Mr.

Anderson’s case – must be assessed contextually in sentencing African Nova Scotian offenders. They “cannot be regarded as static principles to be applied rigidly in what is a highly individualized process.” [ 107 ] In Wournell , supra , at para. 112 , Derrick JA stated that a conditional sentence for the appellant ensures that we do not lose sight of other sentencing principles of rehabilitation and restraint, particularly in this case of a first-time offender.

Justice Derrick acknowledges that Proulx’s observation that Parliament mandated the “expanded use… of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society.” A conditional sentence for the appellant represents a restrained, restorative sanction, one that is responsive to the disproportionate incarceration of African Nova Scotians.

The Principle of Proportionality and the Parity Principle: [ 108 ] As I have previously mentioned, the fundamental principle in sentencing is proportionality which is codified in

section 718.1 of the Code . Recently, in R. v. Parranto , 2021 SCC 46 at para. 44 , the Supreme Court of Canada stated that: “Sentencing judges are required to individualize the sentence in a way that accounts for both aspects of proportionality – the gravity of the offence and the offender’s individual circumstances and moral culpability. At the stage of individualizing the sentence, the sentencing judge must therefore consider “all of the relevant factors and circumstances, including the status and life experiences, of the person before them” ( Ipeelee , at para. 75).

Those factors and circumstances may well justify a significant downward or upward adjustment in the sentence imposed.” [ 109 ] The Supreme Court of Canada in R. v Lacasse , supra , further explained the considerations involving the principles of proportionality and parity on specific sentencing decisions at paras. 53 – 54: [53] This inquiry must be focused on the fundamental principle of proportionality stated in

section 718.1 of the Criminal Code , which provides that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.” A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s.718.2 (

a) and (

b) of the Criminal Code . [54] The determination of whether a sentence is fit also requires that the sentencing objectives set out in

section 718 of the Criminal Code and the other sentencing principles set out in

section 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality. This court explained this as follows in M. (C.A) : “It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime….

Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]” [ 110 ] As I indicated previously, the parity principle found in

section 718.2(

b) of the Code requires the Court to consider that a sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A review of the sentencing precedents provided by counsel or reviewed by the Court may be considered to establish a range of sentences, as a guideline for the trial judge.

It does not, however, create any hard and fast rules, nor does the consideration of an appropriate range preclude a greater sentence where the emphasis is upon denunciation, deterrence and the gravity of the offence or a lesser sentence based upon special or significant mitigating circumstances. [ 111 ] The Nova Scotia Court of Appeal in R. v.

Rakeem Anderson , 2021 NSCA 62 , which was determined about six months before the Supreme Court of Canada’s decision in Parranto , incorporated those same comments from the Ipeelee decision in their decision to once again, highlight, the fact that sentencing is an “inherently individualized process.” In Anderson , supra , at paras. 115 and 116 , Derrick J.A. stated: “[115] Sentencing is an inherently individualized process. It is a fundamental duty of a sentencing judge to pay close attention to the circumstances of all offenders in order to craft a sentence that is genuinely fit and proper.

What is required in the sentencing of Indigenous offenders applies to offenders of African descent who are also entitled to ‘an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences…’ [116] Sentencing judges play a significant role in how offenders are punished and rehabilitated through the criminal justice system.

As in the case of Indigenous offenders, they decide whether an offender of African descent is incarcerated or receives a sentence that can play ‘a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.’ Notwithstanding that the sentencing judges are far downstream from the forces that have contributed to bringing offenders before them, they are influential at a critical juncture: they determine if incarceration and separation from society is the course to be followed or if a remedial option can serve the objectives of sentencing and achieve a just outcome.” [ 112 ] Most recently, in R. v.

Hills , 2023 SCC 2 at paras. 61 and 62 , the SCC has, once again, stated that a “proportionate sentence” incorporates both the gravity of the offence and the moral blameworthiness of the offender. Sentencing is a “highly individualized and discretionary endeavour” and that each sentence is to be “custom tailored” to match the particular offences, as well as the offender. The SCC reiterated that there is no “one-size-fits-all” penalty, and that sentencing is “an entirely individualized” and “profoundly subjective process.” [ 113 ] In R. v.

Hills , 2023 SCC 2 has reiterated, at para. 56, that “proportionality is the “central tenet” of Canada’s sentencing regime. Indeed, “whatever weight a judge may wish to accord to the objectives [for sentencing prescribed in

section 718 to 718.2 of the Criminal Code ], the resulting sentence must respect the fundamental principle of proportionality” ( Nasogaluak , at para. 40, (emphasis in the original)). [ 114 ] The SCC has clearly stated, in Hills , supra , at para. 57 , that the purpose of proportionality is founded in “fairness and justice” to prevent unjust punishment for the “sake of the common good.” It serves as a limiting function to ensure that there is “justice for the offender.” As the “ sine qua non of a just sanction” as mentioned in Ipeelee , supra , (at para. 37), the concept expresses that the amount of punishment an offender receives must be proportionate to the gravity of the offence and the offender’s moral blameworthiness. [ 115 ] In Hills , supra , at para. 58 , the SCC provided additional guidance on the key issues to address in determining the relative gravity of the offence and the offender’s moral culpability in stating:

[58] The “ gravity of the offence” refers to the seriousness of the offence in a general sense and is reflected in the potential penalty imposed by Parliament and in any specific features of the commission of the crime. The gravity of the offence should be measured by taking into account the consequences of the offender’s actions on the victims and public safety, and the physical and psychological harms that flowed from the offence. In some cases, where there is bias, prejudice or hatred, the motivation of the offender may also be relevant (see s.718.2 (a)(

i) Criminal Code ).

The offender’s moral culpability or degree of responsibility should be measured by gauging the essential substantive elements of the offence including the offence’s mens rea , the offender’s conduct in the commission of the offence, the offender’s motive for committing the offence and aspects of the offender’s background that increase or decrease the offender’s individual responsibility for the crime, including the offender’s personal circumstances and mental capacity. [ SCC’s Citations are omitted and emphasis is mine]. [ 116 ] The seriousness or gravity of the offence of criminal negligence involving firearms was highlighted by the Supreme Court of Canada in R v.

Morrissey , 2000 SCC 39 , which involved a

section 12 Charter appeal that the four-year minimum sentence imposed for criminal negligence causing death which also involved the charge of unlawfully pointing a firearm, constituted cruel and unusual punishment. The accused and his friend had been drinking heavily in a small cabin, and the accused had a sawed-off rifle, jumped up with the rifle that he knew was loaded, then fell and the rifle discharged, killing his friend. [ 117 ] The accused had pled guilty to those charges and the trial judge found that the mandatory minimum constituted cruel and unusual punishment pursuant to

section 12 of the Charter and ordered a two-year sentence. The Court of Appeal allowed the Crown appeal and reinstated the four-year mandatory minimum sentence.

The Supreme Court of Canada dismissed the appeal and upheld the mandatory minimum sentence. [ 118 ] In discussing the seriousness or gravity of the criminal negligence causing death with the use of a firearm, which in my view would be equally applicable to a charge of criminal negligence in the use of a firearm causing bodily harm, the SCC stated in Morrissey , supra , at para. 53 : [53] In both of these hypotheticals, it is my view that a four-year imprisonment would not be cruel and unusual punishment for such offenders. Perhaps the most egregious hypotheticals reviewed are the individuals playing with guns.

Firearms are not toys. There is no room for error when a trigger is pulled. If a gun is loaded, there is a sufficient probability that any person in the line of fire could be killed. The need for general deterrence is as great (if not greater) for the hypothetical offenders playing with guns as it is for people such as the appellant. Considering the gravity of the offence, the denunciation and retribution of justice principles satisfied by the minimum sentence are equally applicable in this hypothetical.

In such circumstances, there can be no question that the four-year minimum is as appropriate as it is for the appellant. ( Emphasis is mine ) [ 119 ] It is important to note that the offence of criminal negligence causing bodily harm contrary to

section 221 of the Criminal Code has not been subject to a mandatory minimum punishment. The offence of possession of a prohibited or restricted firearm with ammunition, without a authorization or registration certificate for the firearm [s. 95(1) of the Code ], had been subject to a minimum punishment for that offence, but it was struck down in R. v. Nur , supra . [ 120 ] In terms of the seriousness or gravity of the offences as determined by Parliament, both the

section 221 of the Code and the section 95(1) of the Code offences may be prosecuted by indictment, as they were in this case, and in both cases, an offender may be liable to a term of imprisonment for not more than 10 years. Those two offences reflect the most serious offences before the court as determined by Parliament, as the other offences for which Mr.

Smith is to be sentenced are liable to a maximum of five years or two years of imprisonment when prosecuted by indictment. [ 121 ] Moreover, in considering the consequences of the offender’s actions on victims and public safety as mentioned in Hills , supra , there can be no doubt that the victim suffered significant bodily harm which required surgery, and several months of combined hospital and follow-up at a rehab centre.

The fact that the firearm has never been recovered and could still be in the community has a potential impact on public safety. [ 122 ] In terms of the gravity or seriousness of the offences before the court, I agree with the Crown Attorney and find that the gravity or seriousness of the offences committed by Mr. Smith which involved the possession, handling, use and ultimately the criminally negligent discharge of a restricted or prohibited firearm, were very high. [ 123 ] In terms of Mr.

Smith’s degree of responsibility or moral blameworthiness for the offences before the court, I find that it is somewhat attenuated by the fact that the most serious offence involved criminal negligence in the use of the firearm without any motive or specific intent ( mens rea ) to injure the victim who was, in fact, one of his best friends and as Mr. Smith stated during his remarks to the Court, “like a brother to him.” However, the fact that Mr.

Smith brought a loaded, restricted or prohibited firearm into a small interior space of a hotel room and then pointed it at people and pulled the trigger as “horseplay,” while under the influence of alcohol and likely drugs, demonstrated a complete disregard for the safety of others and a high degree of responsibility for the commission of the offences. [ 124 ] However, I also find that the information in the IRCA report of Mr.

Smith’s personal circumstances in relation to historic factors, foster placements, childhood trauma, mental health issues of anxiety and depression, systemic racism and his struggles with racial identity and locating a place in the ANS community play a role in attenuating his moral blameworthiness for the offences before the court. [ 125 ] In addition, with respect to Mr. Smith’s moral blameworthiness, although I have found that it is high, there is no doubt that he has expressed sincere regret and remorse for his actions.

As mentioned previously, there is substantial information before the Court which has clearly demonstrated that Mr. Smith has taken significant steps to move forward from the circumstances in which he found himself at the time of the offences, through accessing rehabilitative counselling and other resources to rehabilitate himself and promote a sense of responsibility in the community. Sentencing Precedents to Establish a Range of Sentence [ 126 ] As I indicated previously, the parity principle found in

section 718.2(

b) of the Code requires the court to consider that a sentence

imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 127 ] During his submissions, the Crown Attorney referred to several sentencing precedents to establish an appropriate range of sentence. However, it is important to note, from comments of the Supreme Court of Canada, that the proposed range only serves as a “guideline” for the trial judge. This range do

[…]