R. v. Alexander, 2013 NLCA 15

Date: 201302 21 Docket: 12/33 Citation: R. v. Alexander , 2013 NLCA 15 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : SHANE ARLINGTON ALEXANDER APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, White and Hoegg JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Clarenville Appeal Heard: February 14, 2013 Judgment Rendered: February 21, 2013 Reasons for Judgment by Hoegg J.A. Concurred in by Rowe and White JJ.A.

Counsel for the Appellant: Self Represented Counsel for the Respondent: Sheldon Steeves REASONS FOR JUDGMENT Hoegg J.A.: [ 1 ] On May 2, 2012 Shane Alexander was convicted of three breaches of section 4(1) of the Controlled Drugs and Substances Act for possessing various drugs, and one breach of section 91(2) of the Criminal Code for possessing a switchblade. As part of his sentence for the switchblade offence, Mr.

Alexander was prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance (the “firearms prohibition”) for life pursuant to section 109(3) of the Criminal Code . Section 109(3) requires that a lifetime firearms prohibition order be made in any case but a first conviction. On a first conviction, a firearms prohibition order for a

minimum of ten years is mandatory pursuant to section 109(2) of the Criminal Code. [2] On June 27, 2007 Mr. Alexander was convicted of possessing a prohibited weapon under section 91(2) of the Criminal Code. This previous conviction was brought to the judge’s attention at Mr. Alexander’s sentencing. The record indicates that the judgeimposed a lifetime firearms prohibition on Mr. Alexander in the belief that it was mandatory because it was Mr. Alexander’s secondsection 91(2) conviction. [3] Mr. Alexander appeals the lifetime firearms prohibition, arguing that a lifetime ban is too severe.

He says that although he hasnever owned a firearm, he would like to be able to hunt with his son or grandson in the future. He also says that he has mended hisways, and is moving on from his criminal past. [4] The Crown acknowledges that the lifetime firearms prohibition was imposed because the sentencing judge believed it wasmandatory, and concedes it was not mandatory because Mr.

Alexander was not given notice that the Crown was seeking the greaterpunishment of a lifetime firearms prohibition due to his previous conviction. [5] Section 727(1) of the Criminal Code stipulates that where an offender is convicted of an offence for which a greaterpunishment may be imposed by reason of a previous conviction, the offender must be given notice that the Crown is seeking that greaterpunishment because of the previous conviction. In such circumstances, a sentencing judge is obligated to impose the greaterpunishment. It is clear from the wording in

section 727 that it applies to the provisions of

section 109, as was decided by Dymond J. inR. v. Seers, 2010 NLTD 74, 296 Nfld. & P.E.I.R. 171. The applicability of

section 727 to

section 109 does not mean that a sentencingjudge cannot impose a lifetime firearms prohibition for a first offence on a discretionary basis. It simply means it is not mandatory to doso. (See R. v. Ellis (2001), (ON CA), 143 O.A.C. 43.) [6] In this case, the lifetime firearms prohibition was imposed on Mr. Alexander on the basis that it was believed to bemandatory. It was not mandatory because there was no

section 727 notice. Although section 109(2) permits a lifetime prohibition for afirst offence, a sentencing judge would have to consider the facts of the case and the offender’s circumstances to do so. In automaticallyimposing the lifetime prohibition on Mr. Alexander in the absence of a

section 727 notice and without consideration of the facts andcircumstances of the case, the sentencing judge erred. Accordingly, the lifetime firearms prohibition must be set aside, and this Courtmust impose a firearms prohibition in accordance with the provisions of section 109(2). [7] Section 109(2) mandates that Mr. Alexander be subject to a firearms prohibition for a minimum of ten years. While it iswithin this Court’s discretion to impose a mandatory lifetime firearms prohibition, the Crown is not arguing that one be imposed on Mr.Alexander.

However, the Crown is seeking a prohibition of a longer duration than the 10-year mandatory minimum. The Crown’sposition is based on the fact that Mr. Alexander has a criminal record for crimes involving violence, weapons and drugs, and also on thefact that he committed the switchblade offence while bound by another prohibition order. The Crown relies on the Seers case to supportits position. [8] I agree that something more than the 10-year mandatory minimum is required in Mr. Alexander’s case, for the reasons statedby the Crown. However, I do not view Mr.

Alexander’s situation as calling for a lifetime prohibition. Mr. Alexander was found inpossession of the drugs and switchblade while driving on a public highway, having been stopped by police who believed that he wasusing a radar detection device. While Mr. Alexander was pulled over, police detected the smell of marijuana and a search ensued. InSeers the trial judge imposed a 20-year firearms prohibition on an offender convicted of robbery with violence. In Mr. Alexander’s case,something less than a 20-year firearms prohibition is appropriate.

Accordingly a 15-year firearms prohibition pursuant to section 109(2)will be imposed. [9] In the result, the appeal is allowed, the lifetime mandatory firearms prohibition order under s. 109(3) is varied and a 15-yearfirearms prohibition order under section 109(2)(

a) is imposed instead. Mr. Alexander will also be subject to a mandatory lifetime orderprohibiting him from possessing any prohibited or restricted firearm and prohibited weapon, prohibited device and prohibitedammunition pursuant to section 109(2)(b). ______________________________ L. R. Hoegg J.A. I concur: M. R. Rowe J.A. I concur: C. W. White J.A.