R v. Kane, 2022 NSSC 130

SUPREME COURT OF Nova Scotia Citation: R v. Kane , 2022 NSSC 130 Date: 20220512 Docket: Yarmouth , No. 498816 Registry: Yarmouth Between: Her Majesty the Queen v. James Leslie Gerald Kane Library Heading Restriction on Publication: S. 517 and Name of Undercover Officer Judge: The Honourable Justice Pierre L. Muise Heard: April 5, 2022 in Yarmouth, Nova Scotia Written Decision: May 12, 2022 (Rendered Orally April 5, 2022)

Summary: Mr. Kane was convicted by a jury of multiple firearms offences, possessing a firearm while prohibited, unlawful confinement and assault with a bat. Mr. Kane lured Victim 1 to his residence, without any friends or supports accompanying him, so that he could perpetrate a group attack on him. Mr. Kane was the ringleader and the one who engineered the event. The motive was retribution for Facebook insults and threatening comments. He had a lengthy record which included offences of violence. He was serving a conditional sentence at the time. The shots were close to the head and abdominal area.

There was some injury from the discharging of the firearm, in the form of a significant skin burn on his torso, as well as brief hearing loss in one ear. He also forced the shotgun into Victim 1’s mouth, and had plastic laid out on the floor, causing him to think he was going to die. In addition, Mr. Kane and others struck him multiple times, including with a baseball bat. From those strikes, he suffered injuries including significant bruising, abrasions and swelling in multiple parts of his body and head. His knees were so badly swollen he could hardly walk.

It took him approximately one month to heal from his physical injuries. Victim 2 showed up at the door looking for Victim 1. Mr. Kane stuck the shotgun out of the door and fired it right next to her face, causing a minor laceration or abrasion. She fled. Mr. Kane told Victim 1 to leave. Issues:

(1) Which charges should be stayed based on the Kienapple principle?

(2) What is an appropriate sentence? Result: 1. The following offences were Kienappled: the pointing of a firearm offences and the offence of carrying a shotgun for the purpose of committing an offence (because they were subsumed in the s. 244 offences); and the careless use of a shotgun offence (because the jury need not have found that others, not named as alleged victims, were endangered and that additional point was not clear on the evidence). 2. The global sentence was 8 years’ imprisonment. Remand credit of 9 months, based on a ratio of 1.5 to 1, was deducted. The resultant sentence was 7 years and 3 months.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. BAN ON PUBLICATIONS: SECTION 517(1): at show cause hearings, the Judge has made an Order directing that the evidence taken, the information given or the representations made and the reasons, if any, given by the Justice shall not be published or transmitted in any way. BAN ON PUBLICATION on the name of the undercover officer for 1.5 years after Trial. SUPREME COURT OF Nova Scotia Citation: R v.

Kane , 2022 NSSC 130 Date: 20220512 Docket: Yarmouth , No. 498816 Registry: Yarmouth Between: Her Majesty the Queen v. James Leslie Gerald Kane Restriction on Publication: S. 517 and Name of Undercover Officer Judge: The Honourable Justice Pierre L. Muise Heard: April 5, 2022, in Yarmouth, Nova Scotia

Counsel: Saara Wilson, for the Plaintiff Michael Power, Q.C., for the Defendant BAN ON PUBLICATIONS: SECTION 517(1): at show cause hearings, the Judge has made an Order directing that the evidence taken, the information given or the representations made and the reasons, if any, given by the Justice shall not be published or transmitted in any way. BAN ON PUBLICATION on the name of the undercover officer for 1.5 years after Trial. SENTENCING FOLLOWING JURY TRIAL ORAL DECISION RENDERED APRIL 5, 2022 Offences Kienapple Stays [ 1 ] Mr.

Kane was found guilty, by a jury, of all the offences on the Indictment. [ 2 ] There is agreement that a conditional stay should be entered in relation to some of the offences pursuant to the principle against multiple convictions in Kienapple .

However, there is disagreement as to whether certain ones should be stayed. [ 3 ] The Crown submits that Counts 4 and 6, pointing a firearm, should be Kienappled, as being subsumed within the s. 244 offences of discharging a firearm with intent to endanger life, and count 9, carrying a shotgun for the purpose of committing an offence should be Kienappled. [ 4 ] The Defence agrees counts 4, 6 and 9 should be Kienappled. However, it submits counts 1 and 8 should also be Kienappled. [ 5 ] I also agree that counts 4, 6 and 9 should be Kienappled as they are subsumed in the s. 244 offences.

They do not require any additional elements, or protect any additional interests, and they are all part of the same transaction. [ 6 ] The Defence indicated that Count 1, discharging a firearm at a dwelling house knowing a person was in the place, and Count 8, using a shotgun in a careless manner, should be Kienappled without specifying why in its pre-sentencing brief. [ 7 ] In its oral submissions, in relation to Count 1, it made reference to paragraph 60 of R. v. Jacquard , 2019 NSSC 338 . However, the Court brought Mr.

Power’s attention to paragraph 47, where the Judge states: I agree with the accused that 244.2(1)(

a) is not an included offence as he was not charged with discharging a firearm into or at a “place”. This would introduce an additional element to the offence for which he was not given reasonable notice by the charge. [ 8 ] Count 1 contains that additional element and an additional interest to protect. They both relate to the fact that the discharging of a firearm occurred at a place, as defined in s. 244.2(2) of the Criminal Code , and that Mr. Kane knew that there was a person there.

The Criminal Code offence provision, s. 244.1(1) (a), is formulated to highlight the importance of attempting to prevent shooting of firearms at a place as defined, particularly when it is known that there are people there. The things that meet the definition of “place” are things which people can be expected to occupy. The rationale is obvious, it poses a grave risk of injury or death to people who are in a place where they should be able to feel safe, particularly if it is a dwelling house, as in the case at hand.

Discharging a firearm with intent to endanger life is an offence irrespective of whether it happens at a “place” or not. So, the need for it to involve a “place” is an extra element, which makes it such that it is not necessarily included in a s. 244 charge. [ 9 ] The Crown, in its pre-sentencing brief, pre-emptively suggested Count 8 might be Kienappled if connected to the factual basis for the other firearm offences, while providing a counterargument as to why it should remain. The Crown submitted that the basis for finding Mr.

Kane guilty of careless use of a firearm could include, in addition to him firing it out the door and grazing Jessica Lewis’s face, that he, at the same time would have been firing towards two other individuals who were present but not named as alleged victims in the indictment. [ 10 ] In response to that Crown counterargument, I note the following. [ 11 ] The jury could find Mr. Kane guilty of careless use of the shotgun without accepting that the two other individuals were in sufficient proximity to make the firing of the shotgun out of the door careless in relation to them.

The evidence was not sufficiently clear to conclude that was the case. [ 12 ] Shondelle Nickerson testified that Mr. Kane approached her in a very aggressive way and told her to leave. She did not see anything in his hands, but added that then there were gunshots. She did not specify where the gunshots came from or how long after they

occurred. [ 13 ] Jessica Lewis testified that she was at the door of the house when the shot was fired next to her face. She quickly returned to the car where Ms. Nickerson and Kempton Brannen were seated inside the vehicle, which was parked at the beginning of the driveway, as opposed to up closer to the house. [ 14 ] Kempton Brannen did not testify. [ 15 ] Therefore, it was clearly open to the jury to conclude that the firing of the shot posed no danger for Ms. Nickerson and Mr. Brannen, and the contrary is not clearly established on the evidence. As such, there are no additional factual elements to warrant maintaining the careless use of firearm charge. It is properly subsumed in the

section 244 offence against Ms. Lewis. I enter a conditional stay of Count 8. [ 16 ] So, Mr. Kane is being sentenced in relation to the remaining counts which are: [ 17 ] Count 1: discharging a firearm at a dwellinghouse knowing that a person was in the place contrary to

section 244.2 (1)(

a) CC [ 18 ] Count 2: unlawfully confining Kaylen Nickerson contrary section 279(2) CC [ 19 ] Count 3: assaulting Kaylen Nickerson with a bat contrary to

section 267(

a) CC [ 20 ] Count 5: discharging a firearm at Kaylen Nickerson with intent to endanger his life contrary

section 244 CC [ 21 ] Count 7: discharging a firearm at Jessica Lewis with intent to danger her life contrary

section 244 CC [ 22 ] Count 10: possessing a firearm while prohibited pursuant to a conditional sentence order contrary to

section 117.01 CC [ 23 ] The Crown proceeded indictably on all charges. [ 24 ] In the circumstances of this case, given that it was not proven that the shotgun was a restricted firearm or a prohibited firearm, the

section 244 offences and the

section 244.2 offence, Counts 1, 5 and 7, each carry a maximum term of imprisonment of 14 years and a minimum term of imprisonment of four years. [ 25 ] The

section 279,

section 267 and

section 117.01 offences, counts 2, 3 and 10, each carry a maximum term of imprisonment of 10 years, with no minimum penalty. Circumstances of Offences [ 26 ] The offences occurred on or about February 13, 2019. [ 27 ] The accused was 40 years of age at the time. [ 28 ] The victims were in their 20s. [ 29 ] Mr. Kane was tried and convicted by a jury. Therefore, I must consider what they had to have found and what was clearly established on the evidence. [ 30 ] Mr. Kane and Mr. Nickerson had been exchanging insulting and threatening comments on Facebook and possibly through text. [ 31 ] On the day in question, Mr.

Nickerson and Kempton Brannen went to Jessica Lewis’ apartment. Shondelle Nickerson was also there. Mr. Kane arranged for Steven Scott, who was in the same apartment complex as Ms. Lewis, to bring Mr. Nickerson to the house where he, i.e. Mr. Kane, was residing. [ 32 ] Mr. Kane was waiting there with three other individuals. It was in the middle of the night with very little lighting in and around the home. [ 33 ] Mr. Nickerson had never been there before. He entered with Mr. Scott. [ 34 ] Shortly after he entered, he and Mr. Kane wrestled over a shotgun Mr. Kane was holding. They went to the floor.

At that point, the others present restrained Mr. Nickerson. He was hit with a baseball bat, at various parts on his body, mostly his legs, including by Mr. Kane. [ 35 ] He was also kicked and punched, including by Mr. Kane. [ 36 ] While he was laying on the floor, Mr. Kane fired at least 2 shots from the shotgun. One grazed the left side of his torso, just above the left hip, causing a shotgun burn. There was clear evidence establishing the shot that grazed the torso as the photos clearly showed the burn marks. Therefore, the jury had to have found that one occurred. Mr.

Nickerson testified he also fired a shot right next to Mr. Nickerson’s head. [ 37 ] The jury did not necessarily have to find that other shot was as close as Mr. Nickerson testified to convict. However, it was confirmed by another witness, who was less favourable to the Crown, that two shots went through the floor. He could not know how close to Mr. Nickerson it was fired as he was in the basement and Mr. Nickerson was on the main floor. Nevertheless, Mr. Nickerson testified that he could not hear in that ear. That is clear evidence of the proximity of the shot. It is something Mr.

Nickerson observed after he came off the effects of substance he had consumed the night of the incident. I find that the evidence at trial clearly established it was right beside Mr. Nickerson’s ear.

[ 38 ] Mr. Nickerson also testified that Mr. Kane put the shotgun barrel in his mouth. That was corroborated by the DNA expert evidence that Mr. Nickerson’s DNA was inside the end of the barrel of the gun. There was no indication of any other way that Mr. Nickerson’s DNA could have been deposited there. Therefore, the evidence clearly established that occurred. [ 39 ] Towards the end, Mr. Kane told Mr. Nickerson to go to the washroom to get cleaned up. During that time, one of the other individuals at the home was watching over him. Then, Mr.

Kane told him to leave. [ 40 ] That was either shortly before or shortly after Jessica Lewis showed up at the door looking for him, as she was concerned for his safety. She knew where he had gone because he had left her residence with Mr. Scott for the purpose of going there. Her friend, Ms. Nickerson had driven her there and Mr. Brannen had accompanied them. [ 41 ] She knocked at the door. Mr. Kane opened it slightly and told her to leave, then went to close the door. Ms. Lewis put her foot in the door so that it could not be closed. At that point, Mr.

Kane asked to be passed the gun, stuck it out of the door and fired it right next to Ms. Lewis’ face. Causing a minor laceration or abrasion. [ 42 ] She ran back to the car. As they were trying to leave, they: saw Mr. Nickerson; brought him into the car; and drove him to where he was staying. [ 43 ] The incident inside must have lasted at least one-half hour as Ms. Lewis and the other two did not go looking for Mr. Nickerson until they started to worry he had not returned.

Then they had some difficulty confirming they were at the right place and that people were there. [ 44 ] He suffered significant injuries including significant bruising, abrasions and swelling in multiple parts of his body and head. His knees were so badly swollen he could hardly walk. There was a significant burn by his torso. [ 45 ] It took him approximately one month to heal from his physical injuries.

Recommendations [ 46 ] The Crown recommends a global sentence of 8 to 9 ½ years’ Imprisonment, less credit for remand time, as well as the following ancillary orders: - A DNA order; - A s. 109 Firearms Prohibition Order for life; and, - A forfeiture of the shotgun barrel and baseball bat seized. [ 47 ] The Defence recommends a global sentence of 4 ½ years less credit for remand time and for time spent on release conditions. [ 48 ] As to the ancillary orders, it agrees they should be imposed. [ 49 ] Determining the appropriate range of sentence requires the court to consider the objectives and principles of sentencing. [ 50 ] The purpose, objectives and principles of sentencing in Ss. 718 to 718.2 CC apply and I have considered them.

The Objectives of Sentencing [ 51 ] The objectives of the sentence in this case include: - Denouncing unlawful conduct; and, deterring the offender and other persons from committing offences: Courts have repeatedly emphasized the importance of denouncing and deterring gun violence. That is obviously because of the grave risk of death or serious injury accompanying it.

The minimum four-year sentence attaching to some of the charges herein highlight that Parliament has sent a clear message that significant sentences are to be imposed to accomplish those objectives. - Where necessary, separating the offender from society : As the respective recommendations recognize, it is clearly necessary that Mr. Kane be separated from society. - Assisting in rehabilitating the offender; and providing for reparations for harm done to victims and the community ; and, promoting a sense of responsibility in the offender, and acknowledging the harm done to the community : Mr.

Kane did express, to the writer of the presentence report, that he regretted the incident had occurred. He has now expressed remorse for the trauma he inflicted upon the victims and the community. Initially, when he spoke to the writer of the presentence report, he blamed the event on Mr. Nickerson coming into the house and on his actions in the house. Though the victims did not file victim impact statements, the traumatic event they experienced either had a negative impact upon them beyond the physical injuries, or will likely have such a negative impact upon them at some point in the future. Mr.

Kane did not note any areas of his life that might require counselling. However, he has had time to reflect on his mistake and has

extracted some valuable lessons which will help him going forward. They include the ability to be alone, get a job done, work hard and help his community, as well as choosing friendship over animosity. There are comments in the PSR from probation officers which indicate poor response to community-based programming. That is consistent with him committing the within offences while on a conditional sentence order; but it is in the past. Thus, there are prospects of rehabilitation. However, the importance of rehabilitation as an objective of sentencing, in the circumstances, is somewhat diminished.

No meaningful mechanisms for providing reparation for harm done to those victims have been advanced. However, it may be that a lengthy period of imprisonment would promote a sense of responsibility in Mr. Kane and cause him to reflect upon the level of harm done to the victims and to the community. Particularly after what has occurred in Portapique, hearing multiple gunshots through the night can instill fear in those within hearing range. Also, the Barrington area is a small community. In such communities, news of events travels fast.

Knowledge of such activities occurring in your community can also instill fear and worry. Other Sentencing Principles [ 52 ] The following sentencing principles also apply: [ 53 ] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender: S. 718.2.

Aggravating Circumstances [ 54 ] The aggravating circumstances in the case at hand include the following: - It was a group assault on a single individual. - A firearm was involved, as well as a bat. - The firearm was discharged at two separate people and involved three shots. - Ms. Lewis was attending only to retrieve Mr. Nickerson. She posed no danger. As such, the shot beside her face constituted gratuitous violence. - The plastic sheeting on the floor was obviously designed to frighten Mr. Nickerson by leading him to believe he was about to die. - Mr.

Kane was on a conditional sentence at the time. - He was prohibited from possessing firearms, both under a

section 109 order and as a term of his conditional sentence. - He was clearly the ringleader. - He has a very significant criminal record, including for violence. - From 1998 to January 24, 2019, just a few weeks before the incident in the present case, he was sentenced for offences which included: o two assaults (sentenced 2011 and 2013) o one assault causing bodily harm (sentenced 2013) o one threats offence o one resisting a peace officer o nine failures to comply with court-imposed conditions of release o three breaches of probation o one mischief o two thefts o one break and enter o one CDSA trafficking offence. Mitigating Circumstances

[ 55 ] The mitigating circumstances in the case at hand include the following: - Mr. Kane suffers from some health ailments, including Dieulafoy Disease and COPD.

However, he does not take any medications. - He has the support of his family. - He was on judicial interim release under strict conditions for 2 years without any indication of breach. - He has been able to secure seasonal work in various fields, including fishing, carpentry and autobody repair. - He was described by the proprietor of Holland’s autobody shop as being reliable, timely, getting along well with coworkers and authority figures, and being good at what he does. - He has expressed some level of remorse and has written notes of apology. - He expressed, to the writer of the PSR, a respectful attitude towards the police and the legal system. - There was some provocation, but any “heat of the moment” effect had long passed.

He acted in retribution. In addition, Mr. Kane himself insulted and threatened Mr. Nickerson. Therefore, the provocation element has little mitigating effect. - He experienced exceptionally harsh conditions on remand. Proportionality (s. 718.1) [ 56 ] It is a fundamental principle of sentencing that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 57 ] These offences, particularly those carrying a minimum four-year sentence, and particularly considering the level of danger and traumatizing activity involved, are extremely grave offences. [ 58 ] Mr.

Kane lured Mr. Nickerson to attend at the residence, without any friends or supports accompanying him, so that he could perpetrate a group attack on him. Mr. Kane was clearly the ringleader and the one who engineered the event. [ 59 ] There was no indication of any factors which might diminish his level of moral culpability. [ 60 ] As such, he bore the highest degree of responsibility for the offences.

Parity Principle (s. 718.2 (b) ) [ 61 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 62 ] Four co-accused were sentenced, following guilty pleas to assault with a bat and forceable confinement, and in relation to one of them, an additional count of possessing a weapon for a purpose dangerous the public peace. They received sentences ranging from 12 months’ probation to an 18-month conditional sentence.

I agree with the Crown that the circumstances of those pleas and the facts upon which the sentencings were based make them meaningless as comparisons. [ 63 ] The Crown and Defence have provided comparison cases. However, it is important to remember that the Court cannot take a cookie-cutter approach to sentencing and impose sentences based only on the type of offence committed.

Despite the need to consider the principle of parity, the Supreme Court of Canada has “repeatedly emphasized the value of individualization on sentencing”: R v Pham , 2013 SCC 15 . [ 64 ] The Defence recommends four years concurrent for each of the

section 244 charges (I infer that includes the

section 244.2 charge as it also carries a minimum penalty of four years), plus 6 months for the other charges. [ 65 ] In relation to Count 1, the Defence provided, as comparison cases, R v Itturiligaq , 2020 NUCA 6 , and R v Oud , 2016 BCCA 332 , and noted the following points from those cases. [ 66 ] In Itturiligaq , the minimum four-year sentence was imposed. The act was noted as having been dangerous and reckless.

However, the rehabilitation efforts the accused had made were mitigating, even though the objective of rehabilitation had to be secondary to denunciation and deterrence. [ 67 ] In Oud it was noted that where gun violence is on the upper end of moral culpability the sentencing range should commence at 5 to 6 years. [ 68 ] The Crown points to the five-year sentences imposed in R v Oud and in R v Sutherland , 2015 NSSC 354 . It submits the circumstances in the case at hand warrant an additional year, so six years for Mr. Kane, for the discharge of a firearm at a dwellinghouse offence, concurrent with the

section 244 offence. It highlights that, contrary to Mr. Kane, Mr. Oud only had an impaired driving on his record and Mr. Sutherland was a first-time youthful offender. Mr. Oud, while intoxicated, fired seven shots into a dwelling after he was ripped off on a drug deal. One of the shots grazed a man’s cheek. Mr. Sutherland fired a sawed-off shotgun into the bedroom window of a person with whom he had had a previous altercation. [ 69 ] In the case at hand, Mr. Kane was inside the residence, thus there was greater risk of harm. His shots were also right next to, or grazed, Mr. Nickerson. He has a much longer record, including for violence. Thus, the additional year is justified.

[ 70 ] In Itturiligaq , the accused shot at the ridgeline of a house, thus posing less risk than in the case at hand. In addition, he had accepted responsibility upon being arrested, made significant rehabilitation efforts, and had entered a guilty plea. Further Gladue and Inuit social justice concepts were involved. That is completely different from the situation in the case at hand. That case does not support imposition of a sentence approaching the minimum sentence in the case at hand. [ 71 ] In relation to Count 2, forcible confinement, the Crown recommends a two-year sentence, concurrent with the

section 244 offence. It did not provide comparison cases. However, in the circumstances, it appears to be a reasonable range. [ 72 ] In relation to Count 3, the Crown recommends a sentence in the range of 18 months to two years, as it was a group assault causing significant swelling to Mr. Nickerson’s knees, concurrent, as it was part of an ongoing transaction. It did not provide any comparison cases. However, in the circumstances, it appears to be a reasonable range. [ 73 ] Count 5, discharging a firearm at Mr.

Nickerson with intent to endanger his life, as noted, also carries a minimum penalty of four years. [ 74 ] The Defence provided the following comparison cases: R v Chan , 2011 NSSC 471 and R v Stevens , 2010 NSSC 133 . [ 75 ] I will discuss R v Chan with the Crown cases as they also refer to Chan [ 76 ] Mr. Stevens was convicted of two offences contrary to

section 244, a

section 94 offence (unauthorized possession of a firearm in a motor vehicle) and a breach of probation. He received a sentence of six years for the two

section 244 offences. However, Mr. Stevens did not lure his victims into a location where he could perpetrate gun violence upon them. He was in his vehicle, and rolling forward slowly when one of the victims and his friends kept approaching the car. He thought they were there to assault him. He shot the main victim in the neck and shot towards a person approaching the of the back driver’s side of the vehicle. Further, unlike Mr. Kane, Mr.

Stevens: had the mitigating factor of a difficult childhood and mental health issues for which he was taking medication; had taken significant steps towards rehabilitation; entered guilty pleas; only had a single common assault on his record; and, the penalty was jointly recommended. [ 77 ] The Crown recommends a sentence in the range of 7 to 8 years, concurrent, noting that the general range of sentence is 6 to 11 years. It provided the following comparison cases: - R v MacNeil , 2021 NSPC 4 - R v Reesor , 2018 ONCJ 823 - R v Reis , 2017 ONSC 1961 - R v Chan , supra [ 78 ] Mr.

McNeil, who had significant health problems, shot a person in the leg and received a four-year sentence. [ 79 ] Mr. Reesor held a loaded sawed-off shotgun to the head of his domestic partner. He was convicted of discharging a firearm with intent to wound, amongst other offences. He received a seven-year sentence. [ 80 ] Mr. Reis, who had no prior record, sought retribution for the victim waving a gun at him. He attacked the victim and wrestled the gun away, then shot him in the pelvis. He received a six-year sentence. [ 81 ] Mr.

Chan entered a barbershop and fired a handgun indiscriminately three times in the direction of the victim to settle an altercation. One of the bullets pierced the wall to an adjacent store at a location where the owner had been standing moments earlier. He received a sentence of seven years consecutive for the

section 244 offence, as part of a global sentence of 13 years, which was reduced to 11 years to give effect to the totality principle. The

section 244 offence was the most serious offence. Amongst the other offences was possession of a restricted firearm and possession of a weapon contrary to a court order. Like Mr. Kane he had a lengthy criminal record, including for violence and for firearms offences, plus at least five breaches of release conditions, as well as a conviction for drug trafficking. [ 82 ] In the case at hand, the motive was retribution for Facebook insults and threatening comments. There was some injury from the discharging of the firearm, in the form of a skin burn, as well as brief hearing loss in one ear.

The forcing of the shotgun into Mr. Nickerson’s mouth, particularly combined with the plastic laid out on the floor, would cause an increased level of terror. The shots were close to the head and abdominal area, where there are vital organs, posing a higher risk than a lower body targeting.

There were two people in the basement when two of the shots went right through the floor into the basement area. [ 83 ] The case at hand is most comparable to the Chan case, and the circumstances involved injury and an elevated and more prolonged level of terror than the circumstances in the Chan case. [ 84 ] Therefore, the 7 to 8 year range recommended by Crown is reasonable, and supported by the comparison cases. [ 85 ] In relation to Count 7, the Crown recommends a seven-year period of imprisonment, submitting there is reason for it to the consecutive, because it involves a separate person.

It adds that it would be proper to ultimately impose a concurrent sentence to take into account the principle of totality. [ 86 ] It bases its recommendation on the shot having been fired in close range, at head level, and that something from the shot struck the side of Ms. Lewis’s face. Plus, she did not pose a threat to anyone and was not part of any ongoing feud with Mr. Kane. She was only there to retrieve Mr. Nickerson. [ 87 ] In relation to Count 10, the Crown recommends an additional 12 to 18 months to run consecutive to all other sentences, as the

breach of the prohibition order is serious and strikes at the heart of the administration of justice. In support it cites the Chan case, plus R v Crathorne , 2015 NSPC 1 , and R c Vroom , 2016 NBCA 43 . [ 88 ] As highlighted in Vroom and Chan, “consecutive sentences normally should be imposed for s. 117.01 offences because of the need to communicate a strong deterrent message for a violation of a firearms prohibition order” and “to reflect the seriousness of flouting court orders aimed at controlling firearms”. [ 89 ] Therefore, I agree that the sentence should be made consecutive.

I also find the recommended range to be reasonable in the circumstances. Restraint ( s. 718.2 (d) & (e)) [ 90 ] I have considered the principle that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. [ 91 ] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Totality Principle (s. 718.2 (c)) [ 92 ] Where consecutive sentences are imposed, the total sentence should not be unduly long or harsh. [ 93 ] R v Adams , 2010 NSCA 42 , at paragraph 23 , with references omitted, outlined the proper approach to applying the totality principle as follows: In sentencing multiple offences, this Court has, almost without exception, endorsed an approach to the totality principle consistent with the methodology set out in C.A.M., .... The judge is to fix a fit sentence for each offence and determine which should be consecutive and which, if any, concurrent.

The judge then takes a final look at the aggregate sentence. Only if concluding that the total exceeds what would be a just and appropriate sentence is the overall sentence reduced. ... Proper Sentence for Each Count [ 94 ] Considering the points and factors I have discussed, I find that a proper sentence for each count is as follows: [ 95 ] Count 1 : discharging a firearm at a dwellinghouse knowing that a person was in the place contrary to

section 244.2 (1)(

a) CC - six years’ imprisonment. As it is part of the same criminal venture as the

section 244 against Mr. Nickerson (Count 5), it should be concurrent. The purpose of that criminal venture was to punish Mr. Nickerson for the insults and threats and to instill fear into him. [ 96 ] Count 2 : unlawfully confining Kaylen Nickerson contrary section 279 (2) CC - two years’ imprisonment is an appropriate sentence. It also is part of the same criminal venture and should be concurrent. [ 97 ] Count 3 : assaulting Kaylen Nickerson with a bat contrary to

section 267(

a) CC - 18 months’ imprisonment, concurrent for the same reasons. [ 98 ] Count 5 : discharging a firearm at Kaylen Nickerson with intent to endanger his life contrary

section 244 CC - 7 years’ imprisonment. [ 99 ] Count 7 : discharging a firearm at Jessica Lewis with intent to danger her life contrary

section 244 CC. This is also more akin to the circumstances in Chan than the other s. 244 cases . However, the shot was not fired in retribution for insults. It was a fired impromptu to frighten Ms. Lewis away so that she would not walk in on the scene of the crime that had just unfolded. In addition, Ms. Lewis had blocked the closing of the door and refused to leave the residence where Mr. Kane was staying. As such, unlike the

section 244 against Mr. Nickerson, it does not warrant a seven-year sentence. Rather, a five-year period of imprisonment is appropriate. As Mr. Kane had no dispute with Ms. Lewis, it is clear that she was not the target of a separate criminal venture. She merely happened to present herself at the door at an inopportune time during the unfolding of the existing criminal venture. As such, the shot fired next to her face was part of that same criminal venture. It should attract a concurrent sentence, despite her being an additional unplanned victim. [ 100 ] Count 10 : possessing a firearm while prohibited pursuant to a conditional sentence order contrary to

section 117.01 CC. - applying the principle of restraint, a sentence of 12 months is appropriate. For reasons already noted, it should be consecutive to the sentences for the other offences. [ 101 ] These sentences combined provide a total sentence of eight years’ imprisonment. [ 102 ] Considering the circumstances of the case, which I have already outlined, the aggregate sentence does not exceed what is just and appropriate.

It does not create a global sentence that is unduly long or harsh. [ 103 ] It is still within the normal range of sentence for the most serious offence. [ 104 ] There are a large number of offences, many are of a very grave nature. [ 105 ] Mr. Kane has a lengthy and related criminal record, plus he was on a conditional sentence at the time. [ 106 ] He has shown some rehabilitative prospects, but there is no indication that the combined sentence would detrimentally impact his chances of rehabilitation. His auto body shop employer indicated he would be ready to take him back upon his release.

[ 107 ] The combined sentence is proportionate to the constellation of the offending behaviour and the surrounding circumstances of the offence and the offender. [ 108 ] Therefore, there is no need to reduce it to give effect to the totality principle. SENTENCE [ 109 ] Considering these objectives, principles and factors I have noted, and considering all the circumstances of the case at hand, I would sentence Mr. Kane to a total sentence of eight years’ imprisonment, broken down in the manner I have described. Pre-Sentence Custody (s. 719 (3) ) [ 110 ] There is agreement that Mr.

Kane has been in the presentence custody for 179 days, or approximately 6 months, and that he should receive remand credit at a rate of 1.5 to 1, the maximum rate under s. 719(3.1). That amounts to a credit of 240 days or 9 months. [ 111 ] The Defence also submitted that he should receive credit at a rate of 0.5 days to one for each day that he was on release conditions, being from October 24, 2019 to October 26, 2021, a total of 733 days. In support, it advances the case of R v. Balfe , 2019 NSSC 193 . [ 112 ] However, as noted by the Crown, the Defence did not point to any specific factors that impacted Mr.

Kane. The court in R v Simmonds , 2021 NSSC 54 , reviewed the authorities on the issue and, at paragraphs 38 and 39 made it clear that there is no automatic entitlement to credit for time on bail conditions. He would have to show actual suffering, because of the conditions, sufficient to warrant such credit. Otherwise, time spent on strict release conditions, while remaining crime free, is simply considered as a factor mitigating sentence generally, which I have done. [ 113 ] While on judicial interim release, Mr. Kane was allowed to work. Initially, he was working with his surety.

That condition was amended to allow him to cut wood alone on his property and to also work at a body shop. There is no indication of any extracurricular activities that Mr. Kane was prevented from doing. He ended up moving out of his father’s home, into his own home, in June 2021. Therefore, there is no indication of hardship suffered by him. [ 114 ] In the Balfe decision, there was significant information, including in a psychiatric report and in the presentence report, relating to his mental health, treatment and how custody affected him. In addition, Mr.

Balfe had entered guilty pleas and the Crown and Defence had jointly recommended that he receive that credit for time spent on strict release conditions. In addition, the co-accused had already received the same credit. [ 115 ] As such, that decision does not support the same result in the case at hand. [ 116 ] I have already considered the time spent on strict release conditions without any indication of breach amongst the mitigating factors. I will not give any additional credit.

Resultant Sentence After Considering Presentence Custody [ 117 ] The term of imprisonment that I would have imposed for the s. 117.01 offence before any presentence credit is 1 year. For the offender's 6 months of presentence custody, I credit the offender with 9 months. Therefore, the resultant sentence for the s. 117.01 offence is 3 months. This sentence is consecutive to Count 5, the s.244 offence involving Kaylen Nickerson. [ 118 ] In relation to that

section 244 offence, I impose a period of imprisonment of 7 years. So, the total sentence is 7 years and 3 months, and is consecutive to any sentence that he may currently be serving. [ 119 ] The remaining offences will attract concurrent periods of imprisonment as already specified. Ancillary Orders [ 120 ] In relation to the DNA order, s. 244 and s. 244.2 offences are primary designated offences listed in subsection (

a) of definition in s. 487.04 of the Criminal Code . Therefore, a DNA order is absolutely mandatory. There is no discretion to decline to make the order on the basis of grossly disproportionate impact, and I do make it. [ 121 ] A s. 109 Firearms Prohibition Order is mandatory. He was subject to a s. 109 Prohibition Order at the time of the offences, and was prohibited from possessing firearms pursuant to the conditional sentence order he was under. That, combined with the very serious nature of these multiple firearms offences, warrants the imposition of a

section 109 firearms Prohibition for life. I impose it for that period of time. [ 122 ] The shotgun barrel and bat are clearly offence-related property. Therefore, pursuant to s. 490.1 of the C riminal Code , I order forfeiture to her Majesty the Queen in right of the province of Nova Scotia to be disposed of or otherwise dealt with in accordance with the law by the Attorney General. [ 123 ] S. 737 of the Criminal Code provides for the imposition of victim surcharges in the amount of $200 per charge.

However, it permits the court to waive the imposition of a surcharge if it would cause undue hardship to the offender. Though imprisonment alone does not constitute undue hardship, Mr. Kane’s lack of income, and outstanding fines approaching $20,000, make it such that he would be unable to pay those amounts. Therefore, I waive the imposition of the victim surcharges. Pierre Muise, J.