R. v. West, 2019 ONCJ 976

CITATION: R. v. West , 2019 ONCJ 976 DATE: November 27, 2019 SCA. 9856 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JONATHAN WEST R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE S. LATIMER on November 27, 2019, at KITCHENER, Ontario APPEARANCES: B. Schnell Provincial Crown S. Safa Counsel for Jonathan West LATIMER, J. (Orally): These are my reasons for sentence in Mr. West's matter. Jonathan West has pled guilty to three criminal offences relating to the possession and storage of a variety of firearms he obtained after his mother's and father's passing.

These firearms include rifles and handguns, all of which his father lawfully possessed. Mr. West before me, however, possessed only a nonrestricted firearm licence which, very simply stated for present purposes, permitted possession of rifles but not handguns. The Facts Mr. West possessed his father's arsenal for approximately eight months until August 11th, 2018, when his possession came to the attention of the authorities when he shot himself with one of his handguns. Mr.

West and a friend had brought the weapon to a wooded area and, in attempting to remove the gun from his waistband, it accidentally discharged. Mr. West was taken to a local hospital where he received medical attention for his injury. The police were notified of the substance of his injury and located the gun inside his vehicle. This is the substance of the

section 94 occupant of a motor vehicle with knowledge of a firearm charge that he has pled guilty to. Subsequently, the police determined they had an exigent basis to enter Mr. West's home in order to ensure no other unlawful firearms were placing anyone else at risk. Mr. West lived in the home with his wife and their 19-month-old son. The warrantless entry, in my view, was entirely lawful in the circumstances and an example of appropriate and constitutionally compliant police action. The corresponding seizure only extended to items in plain view and was tailored to the particular public safety issue at play. Mr.

West was quite right in his decision not to contest this entry and seizure at trial. The entry and the subsequent warranted search that occurred the following day located a number of rifles and other firearms in the home. Many of these items were carelessly stored, including a loaded handgun in a glass dining hutch behind an unlocked door. Another handgun, this one unloaded, was in a bedside table in the master bedroom. Several rifles were carelessly stored in an unlocked wooden cabinet, and a semiautomatic rifle was found on a closet floor mixed in with some clothes. Mr.

West has pleaded guilty to possession offences that relate to the handguns and the careless storage charge relates to the rifle. The agreed statement of facts contains amplified facts beyond what I have just reviewed. Background Mr. West has no prior criminal record. This is the first time he has appeared in court. He grew up around firearms and possessed a licence that permitted possession of some of these seized items.

A pre-sentence report was prepared that can properly be described as glowing. Mr. West is a family-oriented man, who was very closeto his parents and suffered emotionally following their passing. He is 28 years old and having excelled in school, now runs a flourishingbusiness with his partner's father. The author of the report writes: "He enjoys running his own business and has attainable goals for thefuture. He presents as pro-social in every area of his life." The Position Of The Parties Mr. Safa, acknowledging the public safety concerns that flow from Mr.

West's reckless possession of the firearms, accepts that theseoffences warrant a period of custody. However, it is submitted Mr. West, as a person, is a strong candidate for a conditional sentence. Mr. Iaquinta, in intelligent and knowledgeable submissions, points to prior cases and well-worn principles of general deterrence anddenunciation and submits that a one-year jail sentence is required in the present circumstances. There are also some ancillary orders thatare not the subject of much dispute.

Legal Principles & Analysis The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law, and helpmaintain a just, peaceful and safe society; see 718. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencingprinciples that are contained in the Criminal Code.

These include things like denunciation; general and specific deterrence;rehabilitation; making reparations to victims of crime; promoting a sense of responsibility in offenders; and, an acknowledgment of theharm they have caused the community and specific victims in our community; see 718(

a) through (f). Ultimately, the fundamental principle of sentencing is that a sanction has to be proportionate to the gravity of the offence and the degreeof responsibility of the person who committed it; see 718.1. This means for this sentence to be appropriate, it must be tailored to Mr. West's circumstances and the circumstances of the offences hehas committed. Sentencing at the end of the day is an individualized exercise. In determining the sentence, it is helpful to consider theaggravating and mitigating features presently at play; see 718.2(a). This would include features of Mr.

West's background; features ofthe offence he has committed; the timing of his plea; and legal direction that I would receive from Parliament or from the higher courts. In this case, I would point to two in the present circumstances. First, all firearms offences are serious because of the spectre of deadlyharm that hovers over unlawful firearm activity. The

section 95 offence provision, which addresses restricted or prohibited firearms thatare either loaded or possessed in concert with readably accessible ammunition, is the most serious firearm possession offence in theCode. There is, of course, a wide breadth of conduct caught by this provision, as the Supreme Court of Canada noted in a case called R. v. Nur,2015 SCC 15, paragraph 82: Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three yearsor more, but conduct at the far end of the range may not.

At one end [as the Court of Appeal observed] "stands the outlaw who carries aloaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. ... This person is engaged in truly criminalconduct and possesses a real and immediate danger to the public".

At this end of this range ... a three-year sentence may be appropriate[at this end of the range.] A little further along ... stands the person whose conduct is less serious and poses less danger; for theseoffenders three years ... may be disproportionate, but not grossly so. [And] at the far end of the range, stands the licensed andresponsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. Mr. West, in my view, stands at neither end of the spectrum, but is much closer to the latter, less blameworthy end.

There is nosuggestion in this case that his possession was linked to any criminality beyond that inherent in his own negligent possession. Notwithstanding the striking down of the old three-year mandatory minimum, which would not have applied in this case in any eventbecause the Crown has properly elected summarily, the appellate courts have been clear that restricted firearm possession is serious andrequires judges like me to give serious consideration, paramount consideration, to principles of deterrence and denunciation; see theCourt of Appeal in R. v. Smickle, 2014 ONCA 49.

The second, and at first blush, somewhat contradictory appellate principle I advert to comes from a case called R. v. Priest, (ON CA), which is a seminal sentencing decision by Justice Rosenberg on the Court of Appeal. I am particularly aided by JusticeLauwers' review of the case in a decision Mr. Safa provided me, R. v. Caranci, 2012 ONSC 2830, Justice Lauwers sitting on theSuperior Court at the time. Paragraph 21, Justice Lauwers writes: Mr. Caranci does not have a criminal record. Although I would not describe him as youthful, his rehabilitation prospects are reasonable.

Accordingly, I am particularly mindful of the words of Justice Rosenberg in R. v. Priest, that "the duty to explore other dispositions for afirst offender before imposing a [jail] sentence is not empty formulism which can be avoided merely be invoking the objective of generaldeterrence." Beyond this passage, I should say I have been aided by this decision considerably in providing these reasons.

Both parties in this casehave provided comprehensive and helpful authorities covering the field of different forms of conduct associated with firearm possession,and different sentences flowing from discharges at the low end, through suspended sentence to conditional sentences and jail. I havebeen assisted by these cases even if I am not making direct reference to some of them. Aggravating and Mitigating Features

I would go back to the aggravating and mitigating features. What is aggravating? One, there are multiple firearms possessed. Two, theguns were haphazardly strewn throughout the home. I think most worrisome was the loaded handgun on a shelf in the dining hutchbehind the unlocked door. There is a real risk that that gun could have been handled improperly. I am not convinced and I do notbelieve that the 19-month-old could have accessed that particular gun, and do not find that particular aggravating feature as a fact.

I think it is obvious to point out that children are curious and there is a very real possibility this child could have stumbled upon some ofthe other firearms carelessly stored in the home. This is not a comment on parenting. This is a comment on life and our understanding of children. That is an aggravating feature. Three, Mr. West took one of the guns, the one he shot himself with, out of the home in a vehicle. That more public form of possessioncarries a different, greater risk of harm.

However, I note he has been permitted to plead to the lesser offence, the 94 offence, which onlyrequires knowledge and not full possession. However, as the facts make plain, it was Mr. West's gun. On the mitigating side, we have Mr. West's lack of a prior record. We have his otherwise prosocial good character. There is his familysupport and his placement within a strong family unit. It is obvious to me that incarcerating him for a year would place a significantburden and hardship on his family and his wife, who I consider largely innocent in these proceedings, and his young child.

Regarding moral blameworthiness, I am prepared to accept that the context of this possession, in the months following his parents' death- which I see from the evidence hit him hard - I see that as relevant and somewhat mitigating. Mr. West was not entirely in the rightframe of mind to appreciate how unlawful his conduct was. This is not a defence, but in my view is relevant to moral blameworthiness. He has made some bad decisions, indeed, terrible decisions, in a very difficult period of his life. I accept that he is remorseful, I think profoundly, and I accept that specific deterrence is not an issue.

His guilty plea is significant in thiscase. I accept it was his intention from the outset to do so. To be clear, and there were submissions on this point, I place no weight onhis injury. I am not sure if it is mitigating or aggravating and I simply leave it aside. I agree with the Crown that it is a ready example ofwhy Parliament saw fit to ensure gun owners are fit and educated to accept the privilege of gun ownership. In conclusion, while no case is exclusively about one thing, this case in large part drills down to the following tension.

On one side,guns are very dangerous and illegal possession of them is serious. The public needs to be deterred from such unlawful possession andsentencing courts fulfill a role in providing that deterrence. On the other hand, there is a real, immediate, individual cost to a remorseful, otherwise law abiding and pro-social individual byincarceration that is predominantly, if not exclusively, for the purpose of general deterrence and denunciation. In this case, that would bethe result. Traditional jail is not required for specific deterrence or for any other purpose. A conditional sentence is legally available.

The questionprincipally is whether the purpose and principles of sentencing require such a result. Having given the matter considerable thought, Ihave come to the following conclusion. I am simply not prepared to sacrifice this young family's future on the altar of generaldeterrence, particularly so when a lesser form of sanction is available and capable of addressing all relevant sentencing principles in thiscase. General deterrence can be met by a conditional sentence order in the right case; see the Supreme Court in R. v. Proulx, 2000 SCC5 , [2000] 1 SCR 61. Mr.

West, I am satisfied, will comply with a conditional sentence, and one can be fashioned to fit his circumstances and the public needto denunciate his conduct, given the significant risk it presented. This option is available because of Mr. West's glowing antecedents andhis otherwise good character. Another offender, differently situated, may very well not achieve a similar result. Frankly, the greatest risk his conduct presented was to his own family. It is fortunate that risk was not realized, or at least to anyone buthimself. His partner has been on criminal charges for over a year.

Those charges are being withdrawn today. I suspect there has beensignificant state scrutiny of the family unit. I entirely accept Mr. West appreciates what he risked here and will not place his family insuch a situation again. The disposition is a 12-month conditional sentence to be imposed on – may I see the information? It is the 95 count.... CLERK REGISTRAR: I believe there's two, Your Honour. THE COURT: Yes, I know. I'm just looking for the – the one with – I want to attach it to the Smith and Wesson firearm.... MR. SAFA: That would be count 4 – sorry. By number, Your Honour, it would be count 12, I believe.

Yes, count 12 is the... THE COURT: Yes. MR. SAFA: ...restricted firearm, which is 95(a). THE COURT: On count 12, there will be a 12-month conditional sentence. Mr. West has been approved for electronic monitoring. That is a relevant consideration. Mr. West, you are going to get this in writing, but there are a few questions as I go along, I have to askMr. Safa and certainly, the Crown if they have any views. On this conditional sentence, you will report today and thereafter as requiredto a supervisor.

You will cooperate with your supervisor and sign any releases necessary to permit supervision, and you must provideproof of compliance with any condition to your supervisor on request. You will live at an address approved of by your supervisor and not change that address without obtaining his or her consent in advance. You will be on home confinement for the first six months of the sentence. There will be exceptions. I intend to order electronicsupervision. You will remain in your residence at all times except – Mr.

Safa, as you know, we traditionally choose a half daysomewhere in the week to shop for the necessities of life. Would you be able to recommend a time?

MR. SAFA: Saturdays, 2:00 to 5:00 p.m., please. THE COURT: Except on Saturday between 2:00 and 5:00 p.m., in order to acquire the necessities of life; or, for any medical emergencies involving you or any member of your immediate family or your spouse's immediate family; or, for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments; or for going directly to and from – I do not know if this applies, Mr. Safa, but I am going to include it – directly to and from or being at any assessment, treatment or counselling sessions. MR.

SAFA: Yes, thank you. THE COURT: Under 5, Madam Clerk - and to the staff, to be clear, if I make a mistake, let me know on this point – you will report immediately – you will report immediately to your supervisor for the purpose of arranging your enrollment in the electronic supervision program. And, you will participate and abide by the rules and regulations of that program as required by your conditional sentence supervisor. I am following the language of the order, Madam Clerk, even if I am not perfectly tracking it. You will be on supervision for the six months of house arrest.

Under 10, you are not to possess any weapons as defined by the Criminal Code . All licenses and registration certificates pertaining to these things – he does not possess – like they are all gone, right? MR. SAFA: No. They're all seized. THE COURT: What about the licence? MR. SAFA: They seized it. THE COURT: You understand it is gone as of – okay. So scratch three. That is the conditional sentence, subject to anyone's views. There is no need for probation in this case. There are ancillary orders. I signed a forfeiture order on the last date. MR. SAFA: Yes.

I believe there was a timeline on that for the firearms to be transferred. THE COURT: I believe it's a 109. I just want to check. There is a – there is a prohibition order and I am grateful for anyone's assistance, if it's 109 or 110. MR. SCHNELL: It's 109, I believe, Your Honour. MR. SAFA: Yeah, it's 109. THE COURT: Because they are enumerated, okay. There is a

section 109 weapons prohibition. There are categories of weapons you are prohibited from possessing for either 10 years for one category, and life for the other. Finally, I am obligated, I think, to make a DNA Databank order, and in any event, it is appropriate in the circumstances. The police have the authority to take a prick of your finger for – to draw a bit of blood for inclusion in the National Databank. Is there anything I failed to expressly consider for either party? MR. SAFA: The.... THE COURT: Oh, I'm sorry. There – the two other counts.... CLERK REGISTRAR: (indiscernible) other counts.

THE COURT: Concurrent, the sentence is concurrent on those counts. CLERK REGISTRAR: Okay. THE COURT: In reflection that's how.... CLERK REGISTRAR: Thank you. MR. SAFA: So the first six months is a house arrest. Are you attaching anything to the next six months? THE COURT: No. The six months of the statutory terms, plus the weapons-related terms. MR. SAFA: Thank you. And I take it, my friend, the charges against Ms. Blom and the remaining counts against my friend are being withdraw today? MR. SCHNELL: That's correct. Yes, please. THE COURT: Thank you for your help with this, Mr. Safa.

I found this a difficult matter. MR. SAFA: Thank you, Your Honour. Thank you for a good judgment. CLERK REGISTRAR: Your Honour, can we just confirm what the DNA is on? THE COURT: DNA is on, I think, the 95. MR. SAFA: The 95. And the careless storage, I think has – no, they proceed summarily.

THE COURT: Let's confirm that. I.... CLERK REGISTRAR: If they proceeded by indictment, I see it, but I don't see it by summarily. MR. SAFA: So by

summary election, but I think 95.... THE COURT: So I may have made a mistake here. Let's confirm that. There is a grid at the back of the Code, Mr. Safa. MR. SAFA: Yes. I – they used to have a tab. They removed that the last couple of prints now. Ninety-five. THE COURT: Mr. Schnell, do you have a view? MR. SCHNELL: Mr. Safa's using my Code, so I'm trying to.... MR. SAFA: We'll, I'll see - if by indictment on a 95, Your Honour, so I don't think DNA would apply because they proceeded by

summary election. MR. SCHNELL: What was the election on the.... MR. SAFA: They were all

summary election. MR. SCHNELL: All

summary? THE COURT: Yes. I think – I think I have made a mistake. I – no. It is not –

summary election, it is not caught, so scratch the DNA order. That is fine. The offences – oh. Go ahead. MR. SCHNELL:

Section 91 appears to be secondary regardless of election. THE COURT: Really? CLERK REGISTRAR: Was there a 91? There was no 91. MR. SAFA: There's no 91. MR. SCHNELL: Well, was there no 91 pled to? Okay. MR. SAFA: No. Just a.... CLERK REGISTRAR: There's a 95, an 86, a 94, and another 95. MR. SAFA: There's only 95, 86, 94. MR. SCHNELL: If – unless it's been updated from 2016,

section 95 appears to be secondary regardless also. MR. SAFA: So no. No DNA unless it's by indictment, Your Honour. THE COURT: Okay. We are going to print out the order, Mr. Safa. I'm going to sign it and Mr. West can sign it and then it can go to probation to begin the conditional sentence. The charges are withdrawn against his partner. ********