R. v. Clarke, 2020 NLSC 133

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke , 2020 NLSC 133 Date : October 6, 2020 Docket : 201901G1550 Her Majesty The Queen v. SHANE CLARKE, BRANDON GLASCO, AND JOHN SQUIRES Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: September 10, 2020; October 6, 2020

Summary: Following a trial, the offender Glasco was sentenced to a term of five years’ incarceration for conspiracy to commit murder contrary to section 465(1) (

a) of the Criminal Code . The offender Squires was sentenced as follows:

(1) Count No. 1, conspiracy to commit murder, section 465(1) (a), incarceration for six years;

(2) Count No. 4, carrying a concealed weapon, sections 90(1)-90(2), incarceration for two years;

(3) Count No. 7, possession of a loaded weapon, sections 95(1)-95(2), incarceration for three years; and

(4) Count No. 8, breach of firearms prohibition, sections 117.01(1)-117.01(3), incarceration for two years. To achieve totality, the sentence for Count No. 7 was reduced to two years to be served consecutively to the sentence for Count No. 1; the sentences for Counts No. 4 and 8 were ordered to be served concurrently with the sentence for Count No. 7.

It was ordered that samples of bodily substances be taken from both Glasco and Squires for DNA analysis in accordance with

Part XV of the Code . Pursuant to sections 109(1) (

d) and 109(2) of the Code , it was ordered that Glasco: (

a) be prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years; and (

b) be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Pursuant to sections 109(1) (

d) and 109(3) of the Code , it was ordered that Squires be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, or explosive substance for life. Appearances: Lloyd M. Strickland Appearing on behalf of the Crown Anthony E. St. George Appearing on behalf of the Offender, Brandon Glasco Derek J. Hogan Appearing on behalf of the Offender, John Squires Authorities Cited: CASES CONSIDERED: R. v. Clarke , 2020 NLSC 86 ; R. v. Squires (2017), 138 W.C.B. (2d) 183, 2017 CarswellNfld 134 (Prov. Ct.) ; R. v. Ferguson , 2018 BCSC 1523 ; R. v. Nguyen , 2018 ABQB 861 ; R. v.

Darby , 2016 ABQB 352 ; R. v. Murphy , 2011 NSSC 410 ; R. v. Belcourt , 2012 BCSC 404 ; R. v. Belcourt , 2012 BCSC 527 ; R. v. Etheridge (16 September 2020), St. John’s 201801G6277 (N.L. S.C. (T.D.)); R. v. Nash , 2009 NBCA 7 ; R. v. Hawkins , 2011 NSCA 7 ; R. v. Sidhu , 2011 BCCA 246 ; R. v. Lavallee , 2006 ABCA 324 ; R. v. White , 2007 NLCA 44 ; R. v. Hutchings , 2012 NLCA 2 ; R. v. Roberts , 2019 NLCA 43 ; R. v. Oxford , 2010 NLCA 45 ; R. v. Summers , 2014 SCC 26 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Stack, J. : INTRODUCTION [ 1 ] At the conclusion of an eight-day trial, Shane Clarke was acquitted and Brandon Glasco and John Squires were both found guilty on Count No. 1 of the Indictment, conspiracy to commit murder: Count #1 THAT on or about the 16th day of May, 2018, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfully conspire to murder Bradley Summers contrary to

section 235, thereby committing an indictable offence, contrary to section 465(1) (

a) of the Criminal Code . [ 2 ] Additionally, Mr. Squires pleaded guilty to three firearms offences that were included on the Indictment, as follow: Count #4

THAT on or about the 16th day of May, 2018, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfully carry a concealed weapon, to wit: a handgun, thereby committing an offence contrary to section 90(1) - 90(2) of the Criminal Code . Count #7 THAT on or about the 16th day of May, 2018, at or near St.

John’s, in the Province of Newfoundland and Labrador, did unlawfully possess a loaded prohibited or restricted firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or license under which [he] may possess the said firearm in that place and the registration certificate for the said firearm, thereby committing an offence contrary to section 95(1) - 95(2) of the Criminal Code . Count #8 THAT on or about the 16th day of May, 2018, at or near St.

John’s, in the Province of Newfoundland and Labrador, did possess a firearm, a crossbow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or an explosive substance, to wit: a handgun while prohibited from doing so by an Order made under the Criminal Code or other act of Parliament, thereby committing an offence contrary to

section 117.01(1) - 117.01(3) of the Criminal Code . [ 3 ] My reasons for the verdict of guilt on all of the counts can be found in R. v. Clarke , 2020 NLSC 86 . [ 4 ] I will now render my decision and impose sentences upon each of Mr. Glasco and Mr. Squires for conspiracy to commit murder, as well as upon Mr. Squires for the firearms offences. SENTENCING PARAMETERS AND PRINCIPLES [ 5 ] In arriving at appropriate sentences for each of Mr. Glasco and Mr. Squires, consideration must be given to the principles of sentencing as set out in

section 718 of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”). For both offenders, the primary sentencing objectives are: denunciation, through deterrence, both general and specific; to separate offenders from society; rehabilitation; and the promotion of a sense of responsibility in offenders for the harm they have caused. [ 6 ] The principle of totality must also be considered for the offender, Mr.

Squires, to ensure that the combined sentence for all of the offences is proportionate to their gravity and to his degree of responsibility. facts [ 7 ] In April 2018, a combined task force of Royal Newfoundland Constabulary and Royal Canadian Mounted Police officers obtained an authorization under

Part VI of the Code to intercept certain communications of Dustin Etheridge in order to further an investigation into his alleged involvement in drug trafficking. [ 8 ] Shortly after, in May of 2018, Mr. Etheridge decided to murder Brad Summers, or to have him murdered. His motivations for wanting Mr. Summers killed are unclear. Nonetheless, Mr. Etheridge sought others to aid in this endeavour. [ 9 ] Intercepts obtained under the authorization captured communications between Messrs. Etheridge, Squires, and Glasco, which evidenced an agreement by the three of them to participate in a plot to murder Mr.

Summers. [ 10 ] Several intercepted conversations and texts demonstrate that Mr. Glasco agreed to lure Mr. Summers to a place where the latter could be ambushed, shot, and killed. [ 11 ] Intercepts of conversations with Mr. Squires demonstrated that he agreed to take

part in the conspiracy. His role became clear when he was arrested on the evening of May 16, 2018 with a loaded gun just down the street from the target. The evidence established that Mr. Squires was to be the triggerman; he was going to shoot Mr. Summers. THE PRE-SENTENCE REPORTS Brandon Glasco [ 12 ] Mr. Glasco is 21 years old. He has not completed high school. He reported a good childhood free of abuse. His father is a recovering drug addict. He describes his mother as fully supportive. [ 13 ] Mr. Glasco started using OxyContin at a young age and has been receiving methadone since he was 16 years old.

He reports that otherwise he has been free from drugs for five years. [ 14 ] Mr. Glasco is engaged and he and his fiancé have a baby who was born in August. In addition, he is stepfather to his fiancé’s eight-year-old daughter. This relationship commenced after the events for which he is now being sentenced.

Available Treatment Services [ 15 ] It was recommended that Mr. Glasco avail of programming that is available at federal and provincial institutions to address criminogenic factors pending the completion of a risk and needs assessment. Unfortunately, no risk assessment was included as a part of the Pre-Sentence Report (“PSR”). Criminal Record [ 16 ] Mr. Glasco had no adult convictions at the time of these events. He maintains his innocence of the charge of conspiracy to commit murder. John Squires [ 17 ] The PSR for Mr. Squires was one originally completed in 2017. [ 18 ] Mr. Squires is 36 years old.

He commenced taking opioids at the age of 15. He completed a methadone program in 2009. At the time of the PSR, he said that but for a few “slips” he had been drug-free for three years. I do not have any information as to his current situation in this regard. [ 19 ] Mr. Squires has been in a relationship with his present partner since 2012. She provided a letter of support to the Court. His partner has a son from a previous relationship to whom Mr. Squires is the only father figure. [ 20 ] Sam Martin, a registered psychologist, provided a letter in which he states that Mr.

Squires experienced and observed severe physical and emotional abuse as a child. He continues to suffer the consequences of this trauma in his adult life. [ 21 ] Mr. Squires reported to the author of the PSR that he had a normal childhood, which contradicts what is stated in the letters from his partner and Mr. Martin. At the sentencing hearing, his counsel advised that Mr. Squires chose not to say anything about his childhood to the author of the PSR. Nevertheless, he lived with a stepfather who had two biological children and who was abusive towards Mr.

Squires. [ 22 ] Although he only attended school through to Grade 8, Mr. Squires completed his high school equivalency while serving a period of incarceration. Mr. Squires enjoys cooking, and he would like to pursue certification and a career in that area. Available Treatment Services [ 23 ] There are treatment services available at both federal and provincial institutions that Mr. Squires can avail of. Criminal Record [ 24 ] Mr. Squires has a significant record of previous criminal convictions. The majority of the convictions relate to property offences. However, there are convictions recorded in June 2009 under

section 88 of the Code (possession of a weapon for purposes dangerous to the public peace) and

section 267 (assault with a weapon). [ 25 ] The most pertinent convictions were recorded on March 29, 2017. Mr. Squires was convicted of offences pursuant to section 95(1) of the Code (unlawfully possessing a restricted/prohibited firearm that is loaded or with access to ammunition) and

section 117.01 (breach of a firearm prohibition order); see R. v. Squires (2017), 138 W.C.B. (2d) 183, 2017 CarswellNfld 134 (Prov. Ct.) . Mr. Squires was sentenced to a total of two years’ imprisonment for those offences. He was on parole in relation to those offences when he was arrested and charged in relation to these matters. GUILTY PLEA OF MR. SQUIRES [ 26 ] I have taken into account that Mr. Squires entered guilty pleas to Counts #4, #7 and #8 of the Indictment. [ 27 ] The fact that neither Mr. Glasco nor Mr.

Squires pleaded guilty to the charge of conspiracy to commit murder is neither an aggravating nor a mitigating factor for the purposes of sentencing. REVIEW OF THE CASE LAW Crown Cases [ 28 ] The Crown has submitted a number of sentencing authorities to aid in my deliberations. [ 29 ] In R. v. Ferguson , 2018 BCSC 1523 , following a guilty plea, a youthful first-time offender was convicted of conspiracy to commit murder and was sentenced to four years’ imprisonment, although this term was arrived at to achieve a global sentence.

That is, but for the principle of totality, the court would have imposed a sentence of six years. It was noted that the range of sentence for conspiracy to commit murder is eight to 14 years. [ 30 ] In R. v. Nguyen , 2018 ABQB 861 , an offender was convicted of conspiracy to commit murder. The sentencing judge noted that the two most important sentencing objectives for conspiracy to commit murder are deterrence and denunciation. It notes a sentencing range of from five to 13 years.

Although the court indicated it would have sentenced the offender to 13 to 15 years’ imprisonment, after taking into account totality, a term of 10½ years’ imprisonment was imposed.

[ 31 ] In R. v. Darby , 2016 ABQB 352 , the offender was a member of a “street gang” and was sentenced to eight years’ imprisonment for his involvement in a conspiracy to commit murder. [ 32 ] In R. v. Murphy , 2011 NSSC 410 , the 25 year-old offender was sentenced to five years’ imprisonment for engaging in a conspiracy to commit murder. His was a lesser role in the conspiracy – he relayed information about the location of the target. The court emphasized the principle of rehabilitation. [ 33 ] As we saw above, in Squires , Mr.

Squires was sentenced to two years in prison for breaches of sections 95 and 117.01 of the Code . Defence Cases – Brandon Glasco [ 34 ] Counsel for Mr. Glasco acknowledged in his sentencing submissions that there is limited case law in the Province concerning conspiracy to commit murder. He conceded that the Crown submitted cases that fairly portray the general range of sentences for the offence. Defence Cases – John Squires [ 35 ] In addition to referring to the sentencing submissions provided by the Crown, counsel for Mr.

Squires submitted two further authorities regarding the conspiracy to commit murder charge: R. v. Belcourt , 2012 BCSC 404 , and R. v. Belcourt , 2012 BCSC 527 . [ 36 ] The Belcourt decisions concern a conspiracy to murder the father of Liza Belcourt’s son. Ms. Belcourt paid $10,000 to David Laidlaw who hired Jordan Doiron as the killer. Mr. Doiron had access to a high-powered rifle. The murder was to occur in a public location, but the police intercepted wiretapped communications between the parties and thwarted the plan.

The trial judge commented, “[I]t was only because police were investigating other criminal conduct that they learned of this contracted killing and so were able to protect us.” ( R. v. Belcourt , 2012 BCSC 404 , paragraph 26 ). Ms. Belcourt was a first time offender, Mr. Doiron had a minor, unrelated criminal record, and Mr. Laidlaw had two narcotics’ convictions. Each offender was sentenced to six years’ imprisonment. Sentencing of Dustin Etheridge [ 37 ] Following the sentencing hearing for these matters, in an oral decision, Burrage J. sentenced Mr. Etheridge for his

part in the conspiracy to commit murder, other provincial jurisdictional offences, and three offences under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”) (see R. v. Etheridge (16 September 2020), St. John’s 201801G6277 (N.L. S.C.(T.D.)). [ 38 ] Mr. Etheridge pleaded guilty to one count each under sections 465(1) and 95(1) of the Code and three counts under the CDSA . Six firearms offences were withdrawn. Justice Burrage accepted a joint submission and sentenced Mr.

Etheridge to incarceration for seven years for conspiracy to commit murder, three years for breach of section 95(1), six years for conspiracy to traffic in cocaine, one year for possession of proceeds of crime, and three years for trafficking in cocaine. Based upon the principle of totality, Mr. Etheridge received a combined sentence of 10 years. ANALYSIS Sentence Recommendations Brandon Glasco [ 39 ] For Mr. Glasco, the Crown seeks a sentence of five years’ imprisonment for conspiracy to commit murder. Counsel for Mr. Glasco submits that a four-year sentence would be more appropriate. John Squires [ 40 ] For Mr.

Squires, the Crown seeks a combined sentence of eight years’ imprisonment following the application of the principle of totality, based upon the following individual sentences: for conspiracy to commit murder, six years; for unlawfully possessing a loaded firearm, five years; and two years each for the other two firearms offences. [ 41 ] Mr. Squires seeks a combined sentence of seven years’ imprisonment less time served credited at 1.5 to 1. Submissions on Sentencing for Brandon Glasco [ 42 ] The Crown submits that the most significant aggravating factor is the lengths to which Mr.

Glasco went to realize the goal of murdering Mr. Summers. According to the Crown, his actions arguably met the definition of an attempt. The evidence tendered, in particular the texts from his phone, demonstrates that he lured Mr. Summers to the location where he was to be shot. Mr. Glasco completed his contribution to the murder of Mr. Summers. As in Belcourt , it was only the intervention by the police that thwarted the plan. [ 43 ] Counsel for Mr. Glasco points to his young age, lack of an adult record, and supportive family to support a sentence of four years. Mr.

Glasco was not the instigator of the plot to murder Mr. Summers. Nor was he one of the principle players – those roles fell to Messrs. Etheridge and Squires. It was not demonstrated that Mr. Glasco was motivated by money. He fell under the influence of Mr. Etheridge and got caught up in the conspiracy. Submissions on Sentencing for John Squires [ 44 ] The Crown submits that Mr. Squires was motivated by money to participate in the conspiracy to commit murder. The Crown points to Mr. Squires’ record, especially his conviction in 2017 under

section 95 of the Code – the most serious of the firearms offences for which he is now being sentenced. Mr. Squires’ possession of the loaded firearm in the location where Mr. Summers was lured by Mr.

Glasco indicates that the conspiracy nearly came to fruition. [ 45 ] Counsel for Mr. Squires points to his troubled childhood and his desire to play a positive role within his supportive family as mitigating factors. mitigating and aggravating factors Brandon Glasco [ 46 ] Aggravating factors are the degree to which Mr. Glasco’s participation made the murder come close to happening. Also aggravating is his apparent desire to please Mr. Etheridge and “move up in the organization”. [ 47 ] That Mr.

Glasco pleaded not guilty and, despite his conviction following the trial, does not express remorse, are not aggravating factors ( R. v. Nash , 2009 NBCA 7 and R. v. Hawkins , 2011 NSCA 7 ). [ 48 ] Mr. Glasco’s youth and potential for rehabilitation are mitigating factors. So, too, is the fact that this is his first adult offence. His role, although he was more directly involved in the conspiracy than was the offender in Murphy , was still less than that of Messrs.

Etheridge and Squires. [ 49 ] In Ferguson , the court refers to a presumption that a first time offender is capable of rehabilitation (relying on R. v. Sidhu , 2011 BCCA 246 ). John Squires [ 50 ] By

section 718.2(a)(vi) of the Code , it is a statutory aggravating factor that Mr. Squires was on parole when these offences were committed. Counsel for Mr. Squires submits, however, that because of these charges, he was required to complete the totality of the sentence in relation to the crimes for which he was on parole. Therefore, he says, Mr. Squires has already been punished for violating parole and the Court should avoid doubling that penalty. In R. v.

Lavallee , 2006 ABCA 324 , it was held that although the commission of an offence while on parole is an aggravating factor on sentencing, the totality principle is engaged where the offender is required to return to prison to serve the remainder of the prior sentence because of the revocation of parole. Therefore, I will consider the effect of

section 718.2(a)(vi) when I consider totality below. [ 51 ] Mr. Squires’ criminal record, especially relating to firearms and assault with a weapon, is a seriously aggravating factor. So, too, is how close the conspiracy came to fruition. [ 52 ] Mr. Squires, although he had a troubled childhood, still bears a great deal of moral culpability for these offences. The motivation, although not clear, seems to have been monetary. [ 53 ] I have taken into account as mitigating factors that Mr.

Squires has a supportive family as well as his plea of guilty to the firearms charges. approriate sentences for each of the offences Conspiracy to Commit Murder John Squires [ 54 ] The Crown and counsel for Mr. Squires agree that a six-year term of imprisonment would be appropriate for Mr. Squires on the charge of conspiracy to commit murder. This may be seen to be on the low end of the range of five to 13 or 14 years identified by the Crown given the aggravating factors at play.

Nevertheless, in the circumstances of this case, I am not prepared to impose a sentence greater than that recommended by senior and experienced Crown counsel. Furthermore, it is proportionate to the seven-year sentence imposed upon Mr. Etheridge following the joint submission. Mr. Squires shall be sentenced to a term of imprisonment of six years for conspiracy to commit murder. Brandon Glasco [ 55 ] What then should the sentence be for Mr. Glasco for conspiracy to commit murder? His sentence must be proportionate to those imposed upon Messrs. Etheridge and Squires for the same offence.

Proportionality is determined both on an individual basis and by comparison with sentences imposed for similar offences under similar circumstances. [ 56 ] There is no question that Mr. Glasco’s sentence should be less than those imposed upon Messrs. Etheridge and Squires. Mr. Etheridge was the ringleader; the conspiracy was formed to carry out his desire to have Mr. Summers killed. The role of Mr. Glasco was also less than that of Mr. Squires insofar as the latter appeared at the scene of the intended crime with the only loaded weapon that was found. [ 57 ] Mr.

Glasco seemed unduly influenced by associating with Mr. Etheridge and the prospects of advancing in the latter’s criminal enterprise. He remains very young and so rehabilitation must be a significant consideration. He has no record of prior adult criminal convictions. [ 58 ] In seeking a five-year sentence for Mr. Glasco, the Crown recognizes the mitigating factors in his favour. Five years is at the very low end of the range of sentences for conspiracy to commit murder. I find that Mr. Glasco’s sentence should be at least as long as the five-year sentence imposed upon the offender in Murphy .

This would be proportionate to the six-year term recommended by Crown counsel and imposed upon Mr. Squires. It would also be proportionate to the seven-year sentence imposed upon Mr. Etheridge. A sentence of five years recognizes the differences in the antecedents of the three offenders and their different roles in the conspiracy itself. Messrs. Etheridge and Squires are more culpable than Mr. Glasco.

[ 59 ] I would sentence Mr. Glasco to a term of imprisonment of five years. Firearms Offences – John Squires [ 60 ] The Crown seeks a sentence of imprisonment of five years for the most serious of the firearms offences, namely pursuant to

section 95 of the Code for possessing a loaded firearm. This is in relation to the loaded pistol with which he was found on his arrest on Calver Avenue. [ 61 ] This is not Mr. Squires’ first conviction for a firearms offence. In 2002, he was convicted of possession of a weapon for purposes dangerous to the public peace. The year before these events, he was convicted of offences pursuant to sections 95 and 117.01 . He was sentenced to two years’ imprisonment for those latter two offences. [ 62 ] The sentence for Mr. Squires’ current crimes must serve to deter him and others from committing these serious offences.

The circumstances of the events of that night not only endangered Mr. Summers, but they also endangered Mr. Squires himself, Mr. Etheridge, the police, and other potential first responders and possible innocent bystanders. [ 63 ] The Crown maintains that a mandatory minimum sentence of five years that was struck down as being unconstitutional is nevertheless a clear signal of the serious and dangerous nature of the offence in question and Parliament’s desire to deter such activity. That may well be, but I am not prepared to substitute a judicial minimum penalty for the one that was declared unconstitutional.

The normal sentencing factors must be applied such that the sentence is tailored to the offences and the circumstances of the offender before the Court. I note that a sentence of three years was jointly recommended for Mr. Etheridge for the same offence. [ 64 ] The seriousness of the offence under

section 95 in these circumstances is already reflected in the sentence for conspiracy to commit murder. I have also taken into account that Mr. Squires pleaded guilty. Nevertheless, that it was a serious offence needs to be reflected in the sentence imposed. Here, applying the step-up and jump principles (see R. v. White , 2007 NLCA 44 ), I would sentence Mr. Squires to a prison term of three years for the breach of

section 95 . [ 65 ] The "step-up" principle is that where an offender is convicted of a similar or identical offence to one for which he has been convicted and sentenced in the past, it can be concluded that the prior sentence was not a sufficient deterrent and so the sentence for the new offence should be increased to focus on specific deterrence. Here I reference the two years to which Mr.

Squires was sentenced for the same offence in 2017. [ 66 ] At the same time, however, the "jump" principle provides that the subsequent sentence passed should not be disproportionate to the sentence for the prior offence (i.e., an undue "jump" in sentence). Here I reference that three years is a significant increase in the prior two-year sentence but remains proportionate to it. It is also proportionate to the three-year sentence for Mr. Etheridge. [ 67 ] For each of the other two firearms offences, I would impose a sentence of two years.

Concurrent Versus Consecutive Sentences and Totality: John Squires [ 68 ] Because Mr. Squires is to be sentenced on a number of offences, the principles set out in R. v. Hutchings , 2012 NLCA 2 , apply. Having determined fit sentences for each of the four offences committed by Mr. Squires, I must now turn my mind to whether they should be served concurrently or consecutively.

Then I will take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offences and to his degree of responsibility. [ 69 ] In Hutchings , at paragraph 84 , Green, C.J.N.L. set forth the following list of guidelines to be applied to achieve an appropriate and fit combined sentence: 1. When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles. 2.

The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage. 3. Whenever, following the determinations in the first two steps, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application. 4.

The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. 5. In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offences involved;

b) the number and gravity of the offences involved;

c) the offender’s criminal record;

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing;

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender’s degree of responsibility. 6. Where the sentencing judge concludes, in light of the application of those factors identified in the previous step that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender’s degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality.

If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand. 7. Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been. 8.

In imposing individual sentences adjusted for totality, the judge should be careful to identify:

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. 9. Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much. Consecutive or Concurrent Sentences? [ 70 ] Crown counsel concedes that the sentences for the firearms offences can be served concurrently to one another.

He submits, however, that they should be served consecutively to the sentence for conspiracy to commit murder. As a result, before taking into account the principle of totality, the Crown recommends a combined sentence of 11 years' imprisonment. [ 71 ] Counsel for Mr. Squires acknowledges that the firearms sentences, although to be served concurrently with each other, should be served consecutively to the sentence for conspiracy to commit murder. He would have me add one year consecutive for the firearms offences to the six-year sentence for conspiracy to commit murder.

He submits that the combined sentence, therefore, should be seven years in recognition of the principle of totality. [ 72 ] I find that the sentences for the firearms offences should be served concurrently with each other. Nevertheless, they are sufficiently distinct from the conspiracy charge so as to be subject to consecutive sentences ( R. v. Roberts , 2019 NLCA 43 ). [1] That is, the sentence for Count No. 7 is to be served consecutively to the sentence for Count No. 1, but the sentences for Counts No. 4 and 8 will

be served concurrently with the sentence for Count No. 7. Totality [ 73 ] The Crown accepts that consecutive sentences of six and five years may be unduly harsh in the circumstances and submits that a combined sentence of eight years would be appropriate for Mr. Squires. I agree. Although I would have imposed a combined sentence of nine years, after taking into consideration the factors set out in Hutchings , I conclude that eight would better achieve totality.

A nine- year combined sentence would be unduly long or harsh, in the sense that it is disproportionate to the gravity of the offences and the degree of responsibility of Mr. Squires. Although Mr. Summers came very close to being murdered as a result of Mr. Squires’ involvement in the conspiracy, including being in possession of the loaded weapon, the offences were part and parcel of the same criminal activity. Although the offences are grave, an eight-year sentence adequately addresses deterrence. [ 74 ] An eight-year sentence also recognizes the aggravating factor that these offences occurred while Mr.

Squires was on parole. In the circumstances of these offences and this offender, a one-year reduction in the combined sentence is sufficient for the purposes of totality. [ 75 ] An appropriate combined sentence can be achieved by keeping the sentence for Count No. 1 at six years and making the sentence for Count No. 7 two years served consecutively. The remaining two-year sentences (for each of Counts No. 4 and 8) can be served concurrently with the sentence for Count No. 7. CREDIT FOR PRE-TRIAL CUSTODY [ 76 ] There is no reason why Mr. Glasco and Mr.

Squires should not receive credit at 1.5:1 for the time each has been incarcerated on these charges (section 719(3.1) of the Code and R. v. Summers , 2014 SCC 26 , at paragraph 79 ). Theirs were the normal deprivations faced by a person incarcerated pending trial and sentencing. [ 77 ] Mr. Glasco shall receive credit from June 12, 2020, the date he surrendered himself into custody following his conviction, to the date of sentencing, October 6, 2020 (116 days x 1.5 = 174 days). [ 78 ] Mr.

Squires has been on remand on these charges since he completed the sentence in respect of which he was on parole at the time of these offences. He is, therefore, entitled to credit from December 23, 2019 to October 6, 2020 (288 days x 1.5 = 432 days). DISPOSITION AND SENTENCE Brandon Glasco Conspiracy to Commit Murder [ 79 ] Mr. Glasco is sentenced to a term of five years’ incarceration for conspiracy to commit murder. Following credit for 174 days, he has 1,652 days left to serve. DNA Analysis [ 80 ] Conspiracy to commit murder is a “primary designated offence”.

Therefore, I order that samples of bodily substances be taken from Mr. Glasco for DNA analysis in accordance with

Part XV of the Code . Firearms Prohibition [ 81 ] I order, pursuant to sections 109(1) (

d) and 109(2) of the Code : (

a) that for a period of 10 years, Mr. Glasco be prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition or explosive substance; and (

b) that he be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. John Squires Combined Sentence [ 82 ] Mr. Squires is sentenced as follows:

(1) Count No. 1, conspiracy to commit murder, section 465(1)(a): incarceration for six years;

(2) Count No. 4, carrying a concealed weapon, sections 90(1) - 90(2) : incarceration for two years;

(3) Count No. 7, possession of a loaded weapon, sections 95(1)- 95(2) : incarceration for three years; and

(4) Count No. 8, breach of firearms prohibition, sections 117.01(1) - 117.01(3) : incarceration for two years. [ 83 ] To achieve totality, the sentence for Count No. 7 shall be reduced to two years and shall be served consecutively to the sentence for Count No. 1; the sentences for Counts No. 4 and 8 shall be served concurrently with the sentence for Count No. 7. Consequently, Mr. Squires is sentenced to a term of eight years’ incarceration less 432 days of credit for time served, leaving 2,490 days to be served.

DNA Analysis [ 84 ] I also order that samples of bodily substances be taken from Mr. Squires for DNA analysis in accordance with

Part XV of the Code . Firearms Prohibition [ 85 ] I order, pursuant to sections 109(1) (

d) and 109(3) of the Code , that Mr. Squires be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition, or explosive substance for life. _____________________________ Robert P. Stack Justice