r v. Darrin, 2015 QCCQ 8377

R. c. Green 2015 QCCQ 8377 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and Penal Division" N° : 500-01-011952-089 DATE : September 21 st , 2015 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

Darrin Green Accused ______________________________________________________________________ Decision on SENTENCE ______________________________________________________________________ [ 1 ] The Accused was found guilty of 4 counts, included in a single indictment, and all relating to the illegal possession of a loaded prohibited weapon.

More specifically, count 2 refers to an illegal possession of a loaded prohibited firearm contrary to Section 95(2) a of the Criminal Code (Cr.C.) . [ 2 ] The accusations date back to September 16, 2008, almost 7 years to the day. [ 3 ] The Accused was found guilty on September 18, 2014 [1] , following the dismissal of a motion to exclude evidence (the gun). The Facts [ 4 ] The facts of the case are related in my judgment dismissing that motion of the Accused.

Suffice it to say that on September 16, 2008, at 17:15, he was arrested by the SWAT team of the SPVM at the corner of De Coursol and Des Seigneurs streets in Montreal. He was found in possession of a firearm, a loaded restricted weapon, more specifically a revolver Taurus, caliber 22, it was " chambrée ", and it contained 9 bullets. The Minimum Sentence in Section 95(2)

a) Cr.C . [ 5 ] At the time where the offences were committed, Section 95(2)

a) Cr.C . contained a minimum sentence of 3 years. Following my judgment on guilt, the Accused served a motion to have that minimum sentence declared unconstitutional and of no force and effect as being contrary to the Charter . [ 6 ] The parties then agreed to suspend the hearing of that motion and the imposition of my sentence since the same issue was already before the Supreme Court of Canada (SCC), notably in the case of Nur, in appeal from the Court of Appeal of Ontario (CAO) [2] . [ 7 ] Indeed, since that time, the SCC has declared that the minimum sentence of 3 years in Section 95(2)

a) is unconstitutional and of no force and effect as being contrary to the Charter , more specifically contrary to

Section 12 [3] . The Law [ 8 ] The purpose and principles of sentencing are set out in the Cr.C . , notably in Sections 718 and following. It is said that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives set in

Section 718. [ 9 ]

Section 718.1 sets out the fundamental principle in sentencing: that the sentence be proportionate to the gravity of the offence and to the degree of responsibility of the offender. [ 10 ] Needless to say that the offences for which the Accused has been found guilty are very serious ones. Offences relating to firearms have always been considered as being very serious offences, especially when, as in this case, the Accused has chosen to carry a concealed loaded handgun in the public domain, showing thereby an enormous recklessness (to say the least) towards his law abiding co-citizens: [ 11 ] For whatever reason or purpose the Accused chose to carry that handgun, which we do not know:

[…] That purpose can only be to threaten or inflict serious bodily harm or death. Sentences for these types of offences must reflect society’s absolute rejection of such unacceptable conduct [4] . [ 12 ] Even after striking out the minimum sentence in Section 95(2)

a) in Nur , the SCC has seen fit to recall the fact that [5] : [120] It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. [ 13 ] That, especially when the conduct of the Accused is a "truly criminal conduct" rather the regulatory type of offence alluded to by both the CAO and the SCC in Nur . [ 14 ] The CAO made its own comment of the same kind in paragr. 6 of its decision in Nur [6] : [6] Lastly, as to the fitness of the actual sentence imposed, the trial judge sentenced the appellant to one day in custody and gave him 40 months credit for 20 months pre-sentence custody.

The Crown does not suggest that the appellant should be re-incarcerated. I see no practical value in going through the exercise of determining what would be an appropriate sentence for the appellant in the absence of the mandatory minimum and had he not served the equivalent of a 40-month sentence. I observe only that, even absent the mandatory minimum, and having regard to the appellant’s age and his first offender status, a significant jail term was still necessary in the circumstances of this case. [ 15 ] Even absent the minimum sentence, the offence is still to be considered as a very serious offence.

Over and above the comments made by the SCC and the CAO in Nur , the offence in Section 95(2)

a) is after all still punishable by a maximum sentence of 10 years. [ 16 ] In those circumstances, denunciation and deterrence should be the factors that prevail.

The Accused [ 17 ] The Court does not know much about the Accused or about the motives or purpose that made him carry the weapon. [ 18 ] For sure, as the Court of Appeal of British Columbia wrote in Guha , that purpose can only be to threaten or inflict serious bodily harm or death [7] . [ 19 ] And even though the purpose of carrying a loaded handgun in the public domain could have been to protect himself (which we do not know), this would show that the Accused had no concern for his co-citizen's security and would constitute an aggravating circumstance [8] . [ 20 ] He has no criminal record and there is no allegation or evidence that he was a member of a criminal organization. [ 21 ] He is now 26 years old.

He was 19 years of age at the time of the offences. Almost 7 years have elapsed since their commission. The record of the Accused has showed nothing since then. [ 22 ] He has been detained since September, the equivalent of 12 months. Recommendations of the Parties [ 23 ] The parties made their recommendations on sentence last Tuesday, September 15 th . [ 24 ] Relying on the case of Nur , the Prosecution suggested a sentence of 40 months. That was the sentence imposed by the trial judge to the Accused Nur.

According to Crown Counsel, by not intervening, the CAO and the SCC "sort of" confirmed the sentence of 40 months. [ 25 ] Defence Counsel, on her part, suggested that the one year preventive detention served by the Accused (or the equivalent, 8 months x ½ - 12 months) should, in the circumstances, be enough and that he should be sentenced to the " temps fait ", to a sentence equivalent to the time already served, which would be equivalent to a sentence of one year.

Analysis [ 26 ] It seems to the Court that both recommendations by the Prosecution and by the Defence are, respectfully submitted, unfit in the circumstances. [ 27 ] Crown counsel relies on the fact that in Nur , both the CAO and the SCC, would have "confirmed" the sentence imposed by the trial judge.

In the opinion of this Court, the CAO did not "confirm" the 40 months sentence, as a court of appeal would normally do. [ 28 ] In Nur , since the Prosecution did not suggest that the Accused should be reincarcerated, the CAO simply stated that it saw no practical value in going through the exercise of determining what would be an appropriate sentence for the appellant Nur in the absence of the mandatory minimum and had he not served the equivalent of a 40-months sentence [9] .

By doing so, the CAO did not weigh the fitness of the sentence imposed by the trial judge and thereby, affirmed the sentence [10] but did not "confirm" it in the usual sense of the word. [ 29 ] As to the SCC, the majority wrote [11] that it declined to interfere with the sentences that the trial judge imposed on Nur since in its opinion it remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. Nothing more. [ 30 ] The recommendation by the Defence is also unfit.

In the Court's opinion, it does not respect the principle of proportionality, the criteria of denunciation and deterrence, the statements regarding the gravity of the offence committed by the Accused in the

circumstances he committed it. Again, law-abiding citizens do not wish to walk along an individual carrying a loaded concealed weapon in the public domain. [ 31 ] In support of its recommendation, Defence alluded to a case of Kaluza , in which I sentenced the Accused to a suspended sentence [12] after finding him guilty of having in his possession a loaded weapon [13] . [ 32 ] I do not know if I rendered the right sentence in Kaluza . Only the future will tell.

But one will recognize that the very peculiar circumstances found in Kaluza and the testimony of the accused Kaluza explaining the possession of the weapon, which I believed, are not present here.

Kaluza is an exceptional case with exceptional facts, giving rise to the imposition of an exceptional sentence and has no application in this case. [ 33 ] Rather, it seems to the Court that given all the circumstances, the sentence of the Court in this case, should lie between the recommendations of Crown and of Defence. [ 34 ] The Court relies more particularly on a case of Thiffault [14] , a decision rendered by the Superior Court of Quebec, which was confirmed by the Court of Appeal [15] . [ 35 ] In Thiffault , the trial judge imposed upon the Accused a sentence of 30 months in the following circumstances: • After a jury trial; • With a minimum sentence of one year.

Maximum penalty of 10 years; • The Accused was a member of the Hells Angels; godfather ( parrain ) of the Blatnois motorcycle gang; • He was in possession of the weapon in a "safe" located in his garage. According to the evidence, he was in possession of the weapon for his own protection and for the protection of his family in light of the war between criminal biker gangs. Evidence also disclosed the fact that he did carry the weapon to accompany his wife " dans ses sorties "; • The Accused was a father of two, a good one according to his wife. • He had a prior record.

He had pleaded guilty to an offence of conspiracy to commit murder in 1997 and his sentence had been completely served. [ 36 ] Given those circumstances, that obviously are more aggravating than those in the present instance and that brought the imposition of a sentence of 30 months, the Tribunal is of the opinion that, in this instance, given all the circumstances, a sentence of 24 months is warranted and should be imposed.

FOR THESE REASONS , the sentence of the Court will be the following: On counts 2 and 3, given the 12 months of preventive detention served by the Accused, a sentence of 12 months as of today is imposed, to be served concurrently; In light of the rule against multiple convictions, the Court will pronounce a conditional stay of proceedings on counts 1 and 4; I will now hear the parties on the various orders I should issue. __________________________________ ROBERT MARCHI, J.C.Q.

M e Marilène Laviolette Attorney of the DPCP M e Sharon Sandiford Attorney of the Accused Date of hearing on sentence: September 15 th , 2015