R. v. Laing, 2021 NSPC 14

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Laing , 2021 NSPC 14 Date: 20210218 Docket: 8443154, 8443155, 8443156, 8443175 8443176, 8443177, 8443178 Registry: Halifax Between: HER MAJESTY THE QUEEN v. TRAVIS JAMES TERRY LAING SENTENCING DECISION Judge: The Honourable Judge Elizabeth Buckle, Heard: February 12, 2021, in Halifax, Nova Scotia Decision February 18, 2021 Charge: Section 86(1) Criminal Code x 3 Section 94(1) Criminal Code x 4 Counsel: Kristyn Stevens, for the Crown Alan Ferrier, for the Defence Introduction [ 1 ] Mr.

Laing has pleaded guilty to 7 criminal offences relating to his possession or use of firearms on four separate days between December 29, 2019 and January 10, 2020. Specifically, three counts of careless use of a firearm, contrary to s. 86(1) of the Criminal Code and four counts of being an occupant in a motor vehicle in which he knew there was a firearm present, contrary to s. 94(1) of the Criminal Code . [ 2 ] The offences relate to four long guns: two semi-automatic rifles; a shotgun; and, a .22 calibre lever action rifle.

None of these firearms were restricted or prohibited so they would have been legal to possess with a Possession and Acquisition Licence (PAL). Mr. Laing did not have a PAL and the conduct which resulted in these charges would have been illegal for anyone. That conduct was captured on video recorded by Mr. Laing. The videos show Mr. Laing with loaded firearms in his vehicle and discharging or directing others to discharge the firearms in his backyard, from a moving vehicle on the 103 Highway and in a wooded area near an ATV trail. [ 3 ] I now have to determine a fit and proper sentence for Mr. Laing.

Position of the Parties [ 4 ] The Crown and Defence agree that a custodial sentence is required but disagree on the quantum. Their respective positions reflect a profound difference of opinion as to how Mr. Laing and his conduct should be characterized. [ 5 ] The Crown argues that Mr. Laing’s disregard for the safety of others puts his conduct and moral culpability at the upper end and seeks a global sentence of eight years in custody less the time that Mr.

Laing has already spent in jail. [ 6 ] The Defence acknowledges the risk of harm but argues that the circumstances and absence of any significant criminal history or ulterior criminal motive distinguishes this case from those where offenders have been sentenced to lengthy penitentiary sentences. The Defence argues that a sentence equivalent to the time Mr. Laing has already spent in custody, just over 15 months, is appropriate. [ 7 ] Mr. Laing was denied bail and as of the date of sentencing had spent 316 days in pre-trial custody. The Crown does not dispute that Mr.

Laing should be given enhanced credit of one and a half days per day spent in custody in accordance with the exception in s. 719(3.1). As a result, he has spent the equivalent of 474 days in custody. [ 8 ] There is also no dispute about the additional orders sought by the Crown which include a 10-year weapons prohibition and a DNA Order. Circumstances of the Offences [ 9 ] The circumstances of the offences are set out in an Agreed Statement of Facts (ASF) and depicted in video recordings that

were entered as exhibits on sentencing (Ex. 1 and Ex. 2). Additional information was provided by Edwin Labori, a Firearms Technician employed with the RCMP Specialized Firearms Support Services unit, and Mr. Laing who testified at the hearing. Mr. Labori was qualified as a firearms and ammunition expert and his report was entered as an exhibit at the hearing (Ex. 4). [ 10 ] In early January 2020, while investigating a complaint relating to a motor vehicle and a firearm or imitation firearm, police seized and searched a GoPro video camera and SD cards belonging to Mr.

Laing. [ 11 ] Videos on the SD cards show two different semi-automatic rifles, a shot gun and a lever action .22 calibre rifle (Ex. 1). According to Mr. Labori, at the time, these firearms were common, commercially available in Canada and could be legally purchased/owned with a non-restricted firearms PAL. Mr. Laing did not have a PAL. [ 12 ] The videos show Mr. Laing’s involvement, direct or as a party, with the firearms on four dates: December 29, 2019; January 1, 2020; January 4, 2020; and January 10, 2020. [ 13 ] The first video shows a person acknowledged to be Mr.

Laing sawing the barrel of a rifle and displaying the stock with the shortened barrel. The Crown acknowledges that the evidence does not establish that the resulting barrel length was sufficiently short to make the firearm a prohibited or restricted firearm. There is no evidence of any legitimate reason to cut the barrel off a rifle. Mr. Labori testified that shortening a rifle barrel could result in reduced accuracy. If the cut was not perfectly straight across, there would be a drift in the trajectory of the bullet. [ 14 ] The video from December 29, 2020, shows Mr.

Laing driving a motor vehicle in the Halifax area at night. On the passenger seat is a Type 81 semi-automatic rifle with a loaded magazine and a second, which appears to be loaded, attached to the firearm with tape. These facts support an offence contrary to s. 94(1) (Count 22). [ 15 ] The first video from January 1, 2020, shows Mr. Laing again driving a motor vehicle at night with what appears to be the same Type 81 semi-automatic rifle. According to the ASF, he is driving on Highway 103, near Exit 2. The car radio is playing and within a minute or two of the New Year’s Eve count down, Mr.

Laing discharged the firearm three times out of the driver’s side window. According to the ASF, at the time, he was less than 400 metres from residences. [ 16 ] A second video from January 1, 2020, shows the vehicle stopped at night in an area identified in the ASF as being outside Halifax. A male, seated in the passenger seat, is shown discharging a semi-automatic rifle out the passenger side window under Mr. Laing’s direction. The events of January 1, 2020 support offences contrary to ss. 86(1) and 94(1) (Counts 1 and 23). [ 17 ] A series of videos from January 4, 2020, show Mr.

Laing with a male and a female at Mr. Laing’s residence. The male and female are seen handling a shotgun and the female loads a lever action .22 calibre rifle under the direction of Mr. Laing. The male and female then shoot rounds out of the back door of the residence. According to the ASF, Mr. Laing’s residence is in a sub-division with another dwelling located about 60 metres away in the direction they were firing the rounds.

They were shooting at beer cans located about 25 feet (7 – 8 metres) away, in front of a hill that divides the two properties. [ 18 ] It is agreed that the rounds they were shooting on January 4 th were “sub sonic”. Mr. Labori testified that sub-sonic rounds have a reduced speed and range, the specifics of which would depend on the manufacturer, type of ammunition and angle. If angled toward the sky, the distance would still be measured in kilometres not metres. Mr.

Labori acknowledged that a sub-sonic round from a .22 calibre rifle could travel at 750 feet/second and there are pellet guns that fire pellets at that speed, however, a pellet gun that fires at a speed of more than 500 feet/second would be deemed a firearm for purposes of the applicable legislation . [ 19 ] In a later video from the same date, Mr. Laing’s vehicle is shown parked in a wooded area in daylight. Mr. Laing is in the driver’s seat and the same male and female are with him. A group of ATV drivers go by the car.

The male who is in the passenger seat has a shotgun and the female in the rear passenger seat has a semi-automatic rifle. A few minutes after the ATVs pass the vehicle, the male and female begin shooting out the passenger side of the vehicle under Mr. Laing’s direction. The events of January 4, 2020 support offences contrary to ss. 86(1) and 94(1) (Counts 2 and 24). [ 20 ] In videos from January 10, 2020, Mr. Laing is shown in his vehicle at night with a female. The vehicle is stopped in a wooded area off the 103 Highway, near Exit 5.

The female is clearly impaired, and it is agreed that they met earlier that night. She can be seen handling a semi-automatic rifle while in the vehicle and then discharging it under Mr. Laing’s direction while out of the vehicle. These facts support offences contrary to ss. 86(1) and 94(1) (Counts 3 and 25). [ 21 ] During the investigation, Mr. Laing’s home, which he co-owned and shared, was searched. The firearms depicted in the videos were not located.

During the second search, two other firearms were located: a pistol grip pump action shotgun without a barrel which was located under the sink; and, a .308 rifle which was wrapped in a garbage bag and hidden behind a fridge. Mr. Laing has not pleaded guilty to any offence relating to these firearms. [ 22 ] The person Mr. Laing resided with and who co-owned the home had a PAL and other evidence suggests that she also had an interest in firearms. The Crown has not proven that the additional weapons found in the residence belonged to Mr. Laing or had been secreted by him.

The Crown argues that even without proof of ownership, the presence of these two weapons is aggravating since Mr. Laing had access to them. That argument is premised on proof that Mr. Laing knew they were there. The Defence did not take a position on whether this was proven. [ 23 ] One fact alleged by the Crown was disputed. That is whether the rounds fired by Mr. Laing out of the passenger window of the vehicle on January 1 st , 2020 were “live”. On this point, I heard evidence from Mr. Labori and from Mr. Laing. [ 24 ] Mr.

Labori did not have access to the firearms or ammunition but watched the videos depicting the offences and has experience testing firearms. He testified that the firearm discharged in the video from January 1, 2020 was operating in semi-automatic mode and displayed signs of recoil and muzzle climb. He explained that these features can be caused in three ways: a conventional

firearm discharging bulleted ammunition; a conventional firearm discharging blank cartridges with an internal or external adaptor; or a replica firearm discharging blank cartridges. [ 25 ] Mr. Labori explained that without an adaptor, blank cartridges do not create sufficient gas pressure to complete the cycle of firearm operations, including ejection and reloading, that are the defining characteristics of a semi-automatic firearm. [ 26 ] Mr. Laing acknowledges that there was no internal or external adaptor on the firearm and it was not a replica.

He testified that he had modified the ammunition he was using that day. Through experimentation and testing, he had created bullets that produced enough gas to allow the firearm to complete its cycle and operate properly in semi-automatic mode but did not have the same range as the original bullet. He testified that he cut the tops off bullets and bored them out. He initially tested them in his garage using a large block of wood. Once he had rounds that would properly fire, he tested them at a gun range where he found that their distance was less than 50 yards. [ 27 ] Mr.

Labori acknowledged this was possible but said the resulting rounds would be unpredictable and could still cause injury to the user or others. Unless each bullet was modified in exactly the same way, which would be difficult, they would not be uniform so would behave differently from each other. Further, there would be a risk that the bullet’s jacket would not clear the barrel or would clear the barrel and hurt someone when it came out. If the adapted ammunition did fire, it would be difficult to say how it would travel once it left the barrel.

In his opinion it would not be stable in the air; it could tumble or veer left/right or up/down so would not have an accurate or predictable trajectory. [ 28 ] Mr. Laing is a trained and experienced metal fabricator (a Red Seal). However, he acknowledged that he has no formal training in firearms or ammunition. He testified that he had learned by reading manuals and from experienced gunsmiths. He said he modified each round individually but expressed confidence that the modifications were safe and each round was the same. Mr. Laing’s circumstances [ 29 ] Mr.

Laing has been in custody since his arrest in April of 2020. [ 30 ] Information about his background and current circumstances has been provided through a Pre-Sentence Report, comments of counsel and character letters filed at the hearing (Ex. 5). [ 31 ] He is now 30 years old. He grew up in small communities in rural areas. He and his mother report a relatively uneventful childhood. His parents were not together, his mother married his stepfather when he was nine and they separated when he was 16. There is no indication that he was exposed to substance abuse or violence in the home.

In 2014, he completed a program at the Nova Scotia Community College in metal fabrication and became a Red Seal Metal Fabricator. He has been employed fairly steadily in that trade but was dismissed by his most recent employer in December of 2019. He advised the author of the pre-sentence report that he wanted to return to work with a former employer, but there is no indication of whether that is possible. [ 32 ] He was involved in a long-term relationship which ended shortly before these events.

He and his former partner had purchased a home together and continued to reside together in that home after their relationship ended. They remain friends and his mother has moved in with his former partner to help her keep the house. [ 33 ] There is no evidence of any history of physical health issues or substance abuse. He reports that he has been challenged by depression and recently started to take medication for that. [ 34 ] Despite being unemployed and incarcerated, he is relatively financially stable. [ 35 ] He has had a longstanding interest in firearms.

He told the author of the pre-sentence report that he attributed his actions to having too much time on his hands. He said he never had any intention of using the firearms for anything malicious and said he fixed firearms in his spare time and would take them out to test them in the woods. When given an opportunity to address the Court at the end of the sentencing hearing, Mr. Laing said that he thought he was being careful but accepts that he put people in danger and is sorry for that. He said he never wanted to hurt anyone and would never hurt anyone.

He concluded by saying that this is not the life he wants to live. [ 36 ] Character letters were provided by a cousin, his sister, a long-time friend, and a neighbour. His mother, current girlfriend and a family friend were interviewed for preparation of the pre-sentence report. The general theme is that Mr. Laing is perceived as polite, quiet, respectful, hard-working and generous. [ 37 ] Mr. Laing has a mostly unrelated and somewhat dated criminal record. There are seven convictions between 2011 and 2014. The most relevant is in 2012 for possession of a weapon for a dangerous purpose, contrary to s. 88(2).

The weapon involved in that offence was bear spray. He also has three convictions for breaches of probation or release orders. He has never received a custodial sentence. [ 38 ] During his time in custody, Mr. Laing had one disciplinary level for damage to property by jamming a meal slot. His case manager described him as polite and respectful. Due to Covid-related restrictions on programming, inmates have had limited access to programming. While in custody, Mr. Laing reports having been assaulted by other inmates.

This is corroborated by my own observations of him – I have twice seen him with a black eye during his time in custody. [ 39 ] The author of the pre-sentence report states that Mr. Laing showed remorse for his actions and accepted responsibility. She concluded that he would appear to be a suitable candidate for community supervision. Sentencing Principles General

[40] In sentencing Mr. Laing, I have to apply the objectives and principles set out in 718 to 718.2 of the Criminal Code. The bestmeans of addressing these principles and attaining the ultimate objective of sentencing will always depend on the unique circumstancesof the case. Because of that, it has been consistently recognized that sentencing is a delicate and inherently individualized process (R. v.LaCasse, 2015 SCC 64, at para. 1 and R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at paras. 91-92). Objectives of Sentencing [41] The purpose of sentencing is to protect the public and contribute to respect for the law and the maintenance of a safe society.

Section 718 instructs that this purpose is to be accomplished by imposing just sanctions that have one or more of the followingobjectives: denunciation; general and specific deterrence; separation from society where necessary; rehabilitation of the offender;promotion of responsibility in offenders; and acknowledgment of the harm done to victims and to the community. Denunciation and Deterrence [42] When sentencing for firearms offences, protection of the public, denunciation and general deterrence must be emphasized (seefor example, R. v. Cater, 2012 NSPC 38, at para. 40).

Emphasizing these objectives recognizes the reality that misuse of firearms,whether with ulterior criminal intent, negligence or carelessness, has potentially lethal consequences. It also reflects society’scondemnation of such conduct and the strong need to deter others from committing similar offences. [43] The goal of specific deterrence is to discourage Mr. Laing from committing further offences. Here, the Crown does notemphasize this objective and there is nothing in his background or circumstances to suggest that a lengthy period of custody is requiredto accomplish that objective.

Rehabilitation [44] Rehabilitation continues to be a relevant objective, however, it has a reduced impact when sentencing for firearms offences(LaCasse, at para. 4; and, Cater, at para. 45). [45] Remorse is relevant to both specific deterrence and rehabilitative prospects. The Crown disputes that Mr. Laing’s remorse isgenuine, arguing that the comment about remorse in the pre-sentence report is connected to his statement that he shouldn’t have filmedwhat he did which is indicative of regret at being caught rather than true remorse or regret over his actions.

I accept that some of hisregret is associated with filming himself and getting caught, however, he has also expressed some appreciation for the risk he exposedothers to and remorse for that. [46] Mr. Laing’s character is also relevant to his prospects for rehabilitation. The Crown submits that the character letters andpositive comments in the pre-sentence report should be given little weight because they come from family members, long time family friends and his current girlfriend, who is shown in the video from January 10th participating in the offence. Other than the letter fromMr.

Laing’s current girlfriend, the character letters and supportive comments in this case are entitled to no less weight than they wouldbe in any case. Of course, they do not provide a complete picture of Mr. Laing. However, they help fill in aspects of his character thatwould not be visible merely by looking at his current offending behaviour and criminal record. The letters here show that Mr. Laing is ahard worker, quiet, kind and generous to his family, friends and neighbour, and non-violent and non-aggressive with those people.

Iagree with the Crown that the comments of his current girlfriend are not very helpful. They met shortly before he was incarcerated soshe has a limited history with him, and she was a party to one of the offences. [47] Mr. Laing has a trade, good employment history and community support. He has a relatively minor criminal record and thereis no indication that he is entrenched in a criminal lifestyle. He appears to have good prospects for rehabilitation and successfulreintegration into society. Proportionality [48]

Section 718.1 says that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of theoffence and the degree of responsibility of the offender. It requires that a sentence not be more severe than what is just and appropriategiven the seriousness of the offence and Mr. Laing’s moral blameworthiness. It also requires that the sentence be severe enough tocondemn his actions and hold him responsible for what he has done (Lacasse, at para. 12; and R. v.

Nasogaluak, 2010 SCC 6, at para.42). [49] My proportionality analysis must include an assessment of both the general seriousness of the offence and Mr. Laing’sindividual moral culpability (R. v. White, 2020 NSCA 33, at para. 51). [50] There is no doubt that any offence involving a firearm is serious. As I have said, offences involving firearms can have lethalconsequences and it is not uncommon for that consequence to be borne by innocent third parties. However, despite that, Parliament andthe courts have recognized that some firearms offences are more serious than others.

That is reflected in the legislation which providesfor a range of minimum and maximum penalties and the jurisprudence which addresses a spectrum of conduct, both between offencesand within a given offence. [51] In this case the Crown elected to proceed by Indictment. The maximum sentences are two years in custody for careless use ofa firearm and ten years in custody for having a firearm in a motor vehicle. Unlike some other firearms offences, there are no mandatoryminimum penalties for these offences. [52] In R. v.

Cleary, 2020 NSSC 49, Justice Bodurtha spoke of the broad range of circumstances captured by the s. 86(1) offence. He described, “circumstances ranging from an inadvertently secured firearm to circumstances [such as the one he was dealing with]where an offender is carrying a sawed off shotgun through a residential neighborhood and, ultimately, pointing it at another man’s head”(at para. 76). The caselaw includes other examples such as shooting at residences knowing there were people inside (R. v. M.O., 2011MBPC 47) or discharging a firearm in a home during a domestic dispute (R. v. Riggs, 2016 NLTD 214).

[ 53 ] The combination of a firearm in a vehicle which is prohibited by s. 94(1) is recognized as particularly serious. However, even for that offence, the spectrum of conduct captured by the offence is broad. It applies to anyone who is in a motor vehicle knowing there is a firearm unless the person to possess it is present. It includes loaded prohibited firearms such as a handgun as well as unloaded, unrestricted long guns and a variety of circumstances. [ 54 ] Here, the Crown argues that, subject to totality, Mr.

Laing should be sentenced to three years in custody for each of the s. 94(1) offences from December 29 th and January 10 th , five years for each of the s. 94(1) offences from January 1 st and January 4 th , and, two years for the each of the offences of careless use of a firearm contrary to s. 86(1) . In recommending those sentences, which includes the maximum allowable sentence for careless use of a firearm under s. 86(1), t he Crown submits that it is hard to imagine a more aggravating set of facts relating to firearms where no one was injured. She argues that Mr.

Laing’s conduct created a high risk to the police, the people with him, himself and the public at large and that his culpability is heightened due to the level of carelessness, and the fact that the behaviour was repeated in multiple locations.

She acknowledges the absence of evidence of ulterior criminal motive, but argues that his level of negligence and disregard for public safety places his level of culpability at or near what is seen in cases where there is a broader criminal context. [ 55 ] The Defence acknowledges the risk posed by use of high calibre firearms near dwellings, from vehicles and by allowing them to be used by inexperienced and/or impaired individuals. However, he argues that Mr.

Laing took some steps to reduce that risk and submits that his level of moral culpability is much lower than cases where there is a broader criminal context for the firearms offences. [ 56 ] The context of the offending behaviour is very important to a proper proportionality assessment. Mr. Laing was raised in a relatively rural environment, so I accept that Mr. Laing would have had a comfort and familiarity with long-guns.

I also accept that he was motivated by an interest in firearms and a desire to show off or impress others and not by a desire to use the firearms to hurt or intimidate anyone or even for self defence. There is no evidence that he is criminally entrenched or was using the firearms in any manner connected to a broader criminal context such as the drug trade. No one was hurt or intimidated, and he thought he was taking safety precautions. [ 57 ] However, his behaviour was reckless and the risk to the public was high. Had the police come upon Mr.

Laing while he was in a vehicle with a loaded rifle or had a round gone astray when either Mr. Laing or one of the inexperienced users were firing off rounds, the outcome could have been tragic. Mr. Laing, one of his friends, a police officer, neighbour or other users of the highway were all in danger. I fully appreciate the risks here and some aspects, such as sawing the barrel off the rifle, are very concerning. [ 58 ] Mr. Laing takes responsibility for these offences and he is solely responsible. [ 59 ] I have assessed the comparative gravity of Mr.

Laing’s offending behaviour by reviewing other cases involving firearms. I will review some of these cases in more detail later when I address the principle of parity. The cases demonstrate a broad range of seriousness and offender culpability. At the high end are cases involving loaded handguns in vehicles in busy urban areas. Often those offences involve circumstances where the firearm is an instrument of other criminality and not simply misuse of the firearm.

These include situations where the firearm has been used or is intended to be used to injure or intimidate, in connection with other criminal behaviour such as the drug trade or robbery, or where it is carried for self-defence and there is a real risk of an impulsive decision to use it. Often, the offenders in these cases have prior firearms convictions, were prohibited from possessing firearms at the time of their offences, and/or have serous records for drugs or violence. [ 60 ] In my view, the context of Mr.

Laing’s offences, his moral culpability and personal circumstances make the relative gravity of his offences lower than many of the cases relied on by the Crown. In

summary, • Mr. Laing’s firearms were not handguns or otherwise prohibited or restricted weapons. That does not mean they were not dangerous but virtually every case that deals with handguns stresses the increased risk posed by these weapons – handguns are small, easily transported, hidden and accessed, and there has been a significant increase in the use of handguns in committing serious violent offences in Halifax, • There is no evidence that Mr.

Laing used the firearms to hurt or intimidate anyone, intended to use them for that purpose, or possessed or transported them for any criminal purpose beyond discharging them, • There is no evidence to suggest that the context created a risk that Mr. Laing would impulsively use the firearms against a person. For example, he was not carrying them for self-defence or to help resolve some conflict.

The risk here, which I acknowledge was great, was of accidental harm, not intentional harm, • There is no evidence of any broader criminal context, such as any significant criminal history, association with the drug trade or other criminal enterprise, • From the evidence, I infer that his offences were motivated by an interest in firearms and ammunition and a desire to show off and impress others, • The offence from January 1 st has a particular context because of its timing. Mr. Laing discharged a firearm out his car window immediately after midnight on New Year’s Eve. This was addressed during submissions.

In rural areas, particularly Newfoundland, firing shots at midnight on New Year’s Eve is not uncommon. The Crown acknowledged this in her submissions. This practice is dangerous and doing it from a moving vehicle makes it even more so. However, this context is important to understanding Mr.

Laing’s motives and absence of malicious intent, • There were risks associated with the location where the firearms were used but it is relevant that the firearms were not carried or discharged in an urban centre or a busy residential neighbourhood and some of the locations chosen reflect some effort to find an isolated location, and,

• Mr. Laing had no record for firearms, serious drugs or crimes of violence and was not under a firearms prohibition at the time of the offences . Aggravating and Mitigating Factors [ 61 ]

Section 718.2 requires that I consider the aggravating and mitigating factors relating to the offence and the offender: Aggravating Factors • the number of firearms, number of dates and number of locations; • the fact that the firearms in the vehicle were loaded and in one instance discharged from a moving vehicle; • the involvement of inexperienced and impaired users; • the very high level of risk - the discharge of firearms in residential areas, from motor vehicles and by inexperienced and/or impaired individuals, and the use of modified ammunition created a high risk of serious harm to the users of the firearms and the public at large; • Mr.

Laing’s lack of respect for licensing rules and regulations relating to firearms as evidenced by his failure to obtain a PAL and his general conduct vis-á-vis these firearms; and, • Mr. Laing shortened the barrel of one of the firearms, making it potentially less accurate and more easily hidden, so more dangerous. Mitigating factors : • Mr.

Laing pleaded guilty; • He has training, experience and stable employment in the past which makes him a better candidate for rehabilitation and successful reintegration; • He takes responsibility and has expressed remorse and regret for his actions; and, • He has the support of his family, ex-partner and current partner. [ 62 ] There are other factors which are relevant but which I do not view as clearly aggravating or mitigating. [ 63 ] It is concerning that the weapons have not been recovered, particularly so with respect to the rifle with the shortened barrel. I have no evidence of where the weapons are.

I cannot conclude that Mr. Laing’s failure to co-operate with authorities by telling them where the weapons are is an aggravating factor, rather, I view it as the absence of a mitigating factor. It detracts from his expression of remorse and acceptance of responsibility. [ 64 ] There is no evidence that he used or intended to use the weapons for any extraneous or illegal purpose, caused harm or intended to cause harm.

That is not a mitigating factor but is the absence of a potential aggravating factor. [ 65 ] I accept that the ammunition he used on January 1 st was modified, that the result was a reduced range and that Mr. Laing believed this reduced the risk. However, despite his experience and belief that the rounds were safe, I accept that there was an increased risk of malfunction and the ammunition would have had an unpredictable trajectory and distance. As such, while there would have been decreased risk to those who occupied the residences that were 400 metres away, there was increased risk to Mr.

Laing and increased risk to other users of the highway if he were injured given that he was driving at highway speeds. Parity / Range of Sentences [ 66 ]

Section 718.2 also requires me to consider the principle of parity which says that, within reason, similar offenders who commit similar offences should receive similar sentences. Ultimately, each sentence has to reflect the unique circumstances of the specific offence and specific offender. However, respect for the principle of parity is encouraged by situating a given case within the range of sentences generally imposed for a given offence.

This promotes consistency, fairness and rationality in sentencing. [ 67 ] The theoretical range for these offences is limited only by the maximum penalties in the Criminal Code . However, the actual range is narrowed by the context of the offence and the circumstances of the offender ( R. v. Cromwell, 2005 NSCA 137 ). [ 68 ] The Crown and Defence have each provided cases to help identify the appropriate range for Mr. Laing’s offences. However, both acknowledge that there are no reported cases involving a similar context or circumstances.

I agree that this case involves a unique combination of offence and offender. [ 69 ] The Defence has provided recent reported cases from Nova Scotia and other provinces dealing with sentencing for a variety of gun-related cases: R. v. Halpenny, 2018 NSSC 30 ; R. v. Blagdon, 2013 NSPC 93 ; R. v. Skinner, 2016 NSCA 54 ; R. v. Hill, 2011 NSPC 28 ; R. v. Anderson, 2020 NSPC 10 ; R. v. Strang, 336 Nfld. & P.E.I.R. 232 ; and, R. v. Earle, 2018 NLSC 257 .

In doing so, the Defence cautions that the recent reported cases from Nova Scotia deal with more serious conduct and offenders whose circumstances are very different from Mr. Laing. As such, they do not reflect the appropriate range for Mr. Laing’s specific conduct but are helpful in showing what it is not. More helpful, the Defence argues, are cases from outside Nova Scotia which deal with offenders whose circumstances and factual context are more like Mr. Laing’s.

[ 70 ] In addition to the cases provided by the Defence, the Crown relies on: R. v. Phinn, 2015 NSCA 27 ; R. v. Chan, 2011 NSSC 471 ; R. v. Crathorne, 2015 NSPC 1 ; and, R. v. Cater , 2012 NSPC 38 . Unlike the Defence, the Crown argues that the recent cases from Nova Scotia, and especially Phinn , do establish the appropriate range for Mr. Laing’s circumstances and conduct. [ 71 ] Because context is so important to sentencing for these offences, it is necessary to review the facts in some of these cases. • In R. v.

Halpenny , 2018 NSSC 30 , a sentence of 30 months was imposed for six offences relating to his possession of loaded and unloaded restricted and prohibited handguns and silencers. The offender was 57 years old with a dated and unrelated criminal record. He was a hunter and gun collector. The weapons were in a locked building on his rural property.

The aggravating factors included that four of the 15 firearms seized were handguns, three of the handguns were loaded, two of the long guns were wrapped in plastic and hidden in the ceiling, three of the handguns were concealed but readily accessible in the garage and he was also in possession of items normally worn and used by police officers such as police rain gear, duty belt and body armor. • In R. v. Blagdon , 2013 NSPC 93 , an 18-month conditional sentence was imposed on the passenger in a car where a loaded revolver was located. The offender had an unrelated prior criminal record.

He was in the company of the driver (who received six years) in downtown Halifax shortly after the driver fired three times in the direction of another person. • In R. v. Skinner , 2016 NSCA 54 , the Appeal Court imposed a sentence of 6.5 years on an offender who had pleaded guilty to a number of firearms offences. Mr. Skinner was the passenger in a car that was driving in a busy residential area of north end Halifax at around 11 a.m. He had a semi-automatic pistol and directed the driver to follow another car. When the other car stopped, Mr. Skinner drove past and Mr.

Skinner fired six shots in the direction of the other vehicle with the pistol. Five of the shots hit the vehicle. Mr. Skinner was youthful but had a significant criminal record including three previous convictions for possession of a loaded prohibited or restricted firearm and was subject to a firearms prohibition order at the time of the offences. He had also already pleaded guilty to offences arising out of his arrest the next day when he was found in a vehicle with the same handgun he had used the previous day, but reloaded, tucked into his waistband.

For those offences, the Court had imposed the jointly recommended sentence of five years in custody in addition to four months of pre-trial custody. The appeal court did not interfere with the judge’s discretion to order that the sentences for the offences arising out of the shooting be served concurrently to the sentences for the offences arising out of the arrest. • In R. v. Hill , 2011 NSPC 28 , the offender was sentenced to 12 months in custody after pleading guilty to firearms offences.

He was found in possession of an unloaded handgun which was located in a cargo toolbox in the rear of his truck He had a significant prior record which included serious drug offences, was on parole at the time of the offence and was violating a lifetime firearm prohibition order. His pre-sentence report was relatively positive and he had the ability to be gainfully employed. • In R. v.

Anderson , 2020 NSPC 10 , the offender was sentenced to a conditional sentence order of two years less a day plus probation for two years after being found guilty after trial of weapons offences relating to his possession of a loaded handgun in his waistband in a motor vehicle. He was youthful and had a dated criminal record. Mr. Anderson is African Nova Scotian, the Court had the benefit of an Impact of Race and Culture Assessment and evidence of good prospects for rehabilitation. • In R. v. Strang, 2013 CarswellNfld 77 and R. v.

Strang, 2013 CarswellNfld 202 , the offender was given a suspended sentence with probation after pleading guilty to careless use of a firearm. He had discharged a shotgun into the air as part of a Canada Day celebration and later assisted his very drunk friend to do the same. They were drinking and fired the shots from a deck above the roofs of houses in a subdivision. He was a youthful first-time offender. • In R. v. Earle , 2018 NLSC 257 , the offender was sentenced to 30 months in custody in addition to five and a half months of pre- trial credit for various offences relating to an armed stand-off with police.

He was suicidal and wanted to die by having the police kill him. • In R. v. Phinn , 2015 NSCA 27 , the Nova Scotia Court of Appeal upheld a sentence of six years for an accused who was found guilty of weapons offences relating to a loaded handgun. Mr. Phinn had been at the scene of a street fight involving a large number of people. He was arrested and released but a short time later was arrested again as the passenger in a motor vehicle. A loaded handgun was found under his seat and the trial judge was satisfied that he had carried the gun into the vehicle.

He had a previous record which included two prior convictions for possessing loaded handguns and was on a weapons prohibition at the time of the offence. • In R. v. Chan , 2011 NSSC 471 , the offender was sentenced to 11 years in custody after being convicted of numerous weapons offences. The offences related to two different dates. On one, he entered a shop with his face covered and fired a handgun three times in the direction of a person with whom he had an altercation. There were innocent bystanders present and one bullet went through the wall, entering an adjacent shop.

He was arrested eight days later and found in possession of the same handgun that had been used in the earlier incident. His actions in the shop were described as brazen and reckless, endangering others who were in the shop and the proprietor of an adjacent store. He had a significant criminal record including related offences and was the subject of a firearms prohibition order at the time of the offences. • In R. v. Crathorne , 2015 NSPC 1 , the offender was sentenced to 10 months in custody for possession of a prohibited firearm and five months consecutive for violation of a firearms prohibition order.

He boarded a Halifax city bus with an unloaded sawed-off shotgun, showed it to a passenger and placed it inside his coat. The driver woke him when he fell asleep and the gun fell out. At the time he was the subject of a firearms prohibition order. He had a previous record, but no previous convictions for weapons offences. He was youthful, had cooperated with police, suffered from substance abuse and mental health challenges for which he was getting help. • In R. v.

Cater , 2012 NSPC 38 , the offender was sentenced to eight years’ custody less the time he had served pre-trial for offences relating to the illegal possession and trafficking firearms. The offences included possession of a loaded prohibited sawed-off shotgun, possession of an unloaded prohibited handgun together with readily accessible ammunition, and the firearms trafficking offences which carried mandatory minimum sentences. One of the weapons was fully automatic and he had over-capacity magazines.

He was very youthful, had no previous firearms related offences on his record and had good prospects for rehabilitation. Restraint and Totality

[72] Finally, I have to consider the principle of restraint contained within s. 718.2. Restraint, in general, requires that thepunishment should be the least that would be appropriate in the circumstances. [73] One aspect of restraint is the principle of totality which applies where consecutive sentences are imposed. It says thecombined sentence should not be unduly long or harsh.

A sentence needs to be just and reflect the moral blameworthiness of theoffender but not be so crushing that it removes hope and undermines rehabilitation. [74] Our Court of Appeal has directed that when sentencing for multiple offences, a sentencing judge should first determine theappropriate sentence for each individual conviction and then go on to decide whether the sentences should be consecutive or concurrentbefore ultimately taking a last look at the total sentence and reducing it if need be to reflect totality (R. v. Adams, 2010 NSCA 42).

Analysis and Conclusion [75] Denunciation and general deterrence have to be the primary objectives in this sentencing. Given the number of offences andthe seriousness of those offences, imprisonment is the only option for meeting those objectives. [76] Based on my assessment of the gravity of the offences, the relative gravity of Mr. Laing’s offending behaviour and his moralculpability, I have concluded that neither the individual sentences nor the global sentence of eight years recommended by the Crown aresupported by the case law. I do not agree that Mr.

Laing’s overall level of negligence puts him in the range of sentences imposed inPhinn, Chan, Skinner and Cater. I conclude that sentences in the range recommended by the Crown have been reserved for those whoseconduct, culpability and personal circumstances are far graver than Mr. Laing. [77] I have also concluded that Mr. Laing’s conduct and criminal record distinguish him from the circumstances in Strang where ayouthful first offender received a suspended sentence for firing shots in the air on Canada Day.

However, I would place his conduct, theintent that motivated his conduct and his moral culpability as closer to that of Mr. Strang than to the cases relied on by the Crown. [78] Other cases, such as Anderson, Crathorne and Earle have unique features that make them of limited assistance in the casebefore me. Mr. Anderson’s youth, prospects for rehabilitation and experiences as an African Nova Scotian man were significant to thejudge’s decision to allow him to serve his sentence in the community. Mr. Crathorne possessed a sawed-off shot gun, a prohibitedweapon, on a city bus.

However, it was unloaded and there was evidence that he had mental health challenges. Mr. Earle was suicidaland provoked a standoff with police in the hopes that he would be killed. [79] Ultimately, while I view Mr. Laing’s conduct as reckless and dangerous, I do not view the risk as similar to a loaded handgunin a vehicle in an urban area. His misuse of firearms is serious and criminal, however, his moral culpability cannot be equated with guntraffickers, those who possess prohibited weapons such as handguns or those who possess firearms as an instrument to further othercriminality.

Further, his background and personal circumstances distinguish him from many of the offenders who receive lengthypenitentiary sentences. [80] Mr. Laing is to be sentenced for seven offences occurring on four separate days. All are serious and involve some risk to thepublic.

However, I view the most serious as those involving the discharge of a firearm from a moving vehicle on January 1 anddischarging the firearm on January 4 after ATV drivers go by. [81] Prior to considering totality or credit for pre-trial custody I have concluded that the appropriate sentence for each offence is asfollows: 12 months for the offence of having a loaded firearm in his vehicle contrary to s. 94(1) on Dec. 29, 2019; 18 months for each ofthe other three s. 94(1) offences; and, 12 months for each of the three offences of careless use of a firearm contrary to s. 86(1). [82] I must now determine whether these sentences should be consecutive of concurrent to each other.

The Crown acknowledgesthat each of the s. 86(1) sentences should be concurrent to the sentence for the s. 94(1) offence occurring on the same date. To arrive at what she submits is the appropriate global sentence of eight years, the Crown suggests that sentences for the January 4th and 10th offences could be made concurrent to the offences committed on December 29th and January 1st.

However, but for totality, the Crownsubmits that the offences on different dates should result in consecutive sentences. [83] Subject to the principle of totality, courts must consider imposing consecutive sentences for offences that “do not arise out ofthe same event or series of events” (s. 718.3(4)(b)(i)). The presence of a “reasonably close” nexus between offences can result inconcurrent sentences even where the offences relate to different transactions (for example, a series of "spree" offences, R. v. Bratzer,(2002) 2001 NSCA 166 , 198 N.S.R. (2d) 303 (C.A.)).

Whether concurrent or consecutive sentences are warranted will dependon a number of factors, including the time frame within which the offences occurred, the similarity of the offences, whether a new intentor impulse initiated each of the offences and ultimately, the principle of totality (R. v. T.E.H., 2011 NSCA 117 , [2011] N.S.J.No. 677 (C.A.); R. v. G.A.W. (1993), 1993 NSCA 191 , 125 N.S.R. (2d) 312 (N.S.C.A.); and, R. v. Naugle, 2011 NSCA 33) [84] Mr. Laing’s offences were all committed within a 13-day period, involve some of the same firearms and similar behaviour.

However, they are not part of a continuous transaction. Mr. Laing had time in between to reflect and they are discrete offences in thesense that they involve a new impulse each time, different people and in some cases different firearms. An argument could be made thateven without consideration of totality, the sentences for events on different days should be concurrent to each other. [85] If I were to conclude that they should be consecutive, I would then be required to take a last look at the sentence and assesswhether it respects proportionality by not exceeding Mr.

Laing’s overall culpability, given the gravity of the offences and his degree ofmoral blameworthiness. [86] If the sentences for each date outlined above were consecutive to the other dates, Mr. Laing would be sentenced to 66 months(five and one-half years) in custody. In my view, that cumulative sentence would be disproportionate to Mr. Laing’s overall culpabilityand conduct and would be unduly harsh in the circumstances. [87] Taking into account the principle of totality, I am satisfied that the sentencing principles can be adequately addressed by a

global sentence of 18 months in custody to be followed by 3 years probation, less credit for the time he has already served. [ 88 ] In reaching that conclusion, I have considered the aggravating factors including the grave risk he put himself and others at, but I have also closely examined the surrounding context for the offences including the absence of an extraneous criminal motive.

I am also impacted by the fact that he has never been sentenced to a period of custody before and I believe a period of probation would contribute to the long-term protection of the society. [ 89 ] To arrive at what I view as an appropriate sentence, I will simply make all sentences concurrent to each other.

For sentence calculation clarity I will refer to the sentence in days rather than months. the result is: • Counts 1, 2, and 3 – s. 86(1) - 365 days on each, concurrent; • Count 22 - s. 94(1) from December 29, 2019 – 365 days, concurrent; and, • Counts 23, 24, 25 - s. 94(1) from January 1, January 4, and January 10, 2020 – 540 days on each, concurrent and 3 - years’ probation [ 90 ] I will give Mr.

Laing credit for 474 days already spent in custody that will result in a go forward sentence of 66 days plus 3 years probation with the following conditions: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court ; • Notify the Probation Officer in advance of any change of name or address or telephone number, and promptly notify the supervisor of any change of employment or occupation; • Report to a Probation Officer in Halifax within two days of the release from custody and thereafter as directed by his probation officer; • Not own, possess or carry any weapon, firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance as those items are defined in the Criminal Code ; • Attend for, participate in and successfully complete any and all counselling, assessment, treatment or program as directed by his probation officer, including but not limited to mental health counseling; and, • Sign any consents required by service providers so his probation officer can get updates or reports as to his participation and progress. [ 91 ] In addition, Mr.

Laing is prohibited under s. 110 of the Criminal Code from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years and will provide a sample of his DNA for the DNA databank. Elizabeth Buckle, JPC.