R. v. Price, 2022 NLSC 30

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Price , 2022 NLSC 30 Date : March 2, 2022 Docket : 201906G0099 Her Majesty The Queen v. Harvey Murlin Price Before: Justice Katherine O'Brien Place of Hearing: Clarenville, Newfoundland and Labrador Date of Hearing: April 9, 2021 Appearances: P. Cory Binderup Appearing on behalf of the Crown Michael S. Ralph Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: R. v. Price, 2021 NLSC 6; R. v. Kandola, 2010 BCSC 841; R. v. Bergh, 2019 ABCA 151; R. v. Parsons(1996), (BC CA), 113 C.C.C. (3d) 216, 33 W.C.B. (2d) 378 (B.C.C.A.); R. v. Bayani (2003), (ONCA), 173 O.A.C. 36, 58 W.C.B. (2d) 83 (C.A.); R. v. Padda, 2019 BCCA 351; R. v. Chalifoux (1995), 1995 ABCA 444 , 174A.R. 348, 29 W.C.B. (2d) 81 (C.A); R. v. Roberts (1992), (BC CA), 15 W.C.B. (2d) 380, 10 B.C.A.C. 158 (C.A.); R.v. Blackhall (1988), 6 W.C.B. (2d) 200, [1988] B.C.J. No. 2593 (C.A.); R. v. Riggs, 2016 NLTD(G) 214; R. v. J. (T.C.), 1999 BCCA577; R. v.

Huson, 2009 BCSC 1825; R. v. Whalen (1994), (NL SC), 114 Nfld. & P.E.I.R. 299, 356 A.P.R. 299 (Nfld.S.C.(T.D.)); R. v. Russell (1992), 10 B.C.A.C. 68, 15 W.C.B. (2d) 189 (C.A); R. v. Boutilier, 2006 NLTD 30; R. v. Hutchings, 2012NLCA 2; R. v. Roberts, 2019 NLCA 43; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT O'Brien, J.: INTRODUCTION [1] I found Mr. Price guilty of seven offences under the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) following a trial byjudge alone.

Those offences are: careless use of a firearm (section 86(1)), careless storage of a firearm and ammunition (section 86(1)),unlawfully pointing a firearm (section 87, two counts), carrying a firearm for the purpose of committing an offence (section 88), anduttering threats (section 264.1(1)(a), two counts). This is my decision on sentence. [2] The relevant facts are set out in detail in my decision on conviction (R. v. Price, 2021 NLSC 6). Briefly, the offences arise outof interactions between Mr. Price and his former brother-in-law, Edison Avery, and Mr. Avery’s partner, Christopher Neal.

Sometime inthe late summer of 2018, Mr. Price called Mr. Avery and threatened to kill him and Mr. Neal if they ever came to Hatchett Cove again. Mr. Avery and Mr. Price’s sister, who were separated at this time, owned a cabin in Hatchett Cove. About a month after this call, onSeptember 2, 2018, Mr. Avery and Mr. Neal went to Hatchett Cove to visit the cabin. While they were there, Mr. Price arrived with ashotgun. He said he was there to kill them and he pointed the shotgun at them. Mr. Avery and Mr. Neal dropped to the ground and thenheard two shots fired. Mr. Price left the area soon after.

In a subsequent search of Mr. Price’s home, police found a rifle and bullets thatwere improperly stored. During both the phone call to Mr. Avery and his interactions with Mr. Avery and Mr. Neal in Hatchett Cove,Mr. Price used anti-homosexual slurs. ISSUES [3] I have to decide the appropriate individual sentences for each of these crimes and the appropriate overall sentence. DECISION [4] I have determined that the appropriate sentence for Mr. Price is 14 months and 5 days of imprisonment, followed by 18months of probation and ancillary orders. My reasons are as follows.

SENTENCING OBJECTIVES [5] Determining an appropriate sentence starts with the principles of

section 718 of the Code. The sentence must contribute torespect for the law and the maintenance of a just, peaceful, and safe society. It should meet one or more of the following objectives:denunciation, deterrence, separation of offenders from society (where necessary), rehabilitation, reparation, and general promotion of asense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.

A sentence must beproportionate to the gravity of the offence and the degree of responsibility of the offender. [6] It is important to consider the offender’s personal circumstances including family and social background, alternatives toincarceration (where they are available and appropriate), and any factors that mitigate or aggravate the offences. The sentencing sectionsof the Code have as their primary focus the protection of the public, which is best achieved by crafting a sentence that fits both theoffence and the offender.

RANGE OF SENTENCE UNDER THE CODE [7] The Code does not prescribe minimum punishments for any of these crimes, but it prescribes maximum punishments asfollows: a. Careless use of a firearm (section 86(1)) – two years for a first offence and five years for a second offence

b. Careless storage of a firearm and ammunition (section 86(1)) – two years for a first offence and five years for a second offence c. Unlawfully pointing a firearm (section 87) – five years d. Carrying a firearm for the purpose of committing an offence (section 88) – ten years e.

Uttering threats (section 264.1(1)(a)) – five years [ 8 ] A maximum penalty will by its very nature be imposed only rarely and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. [ 9 ] While each case and each offender is unique, a fit sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. To arrive at a sentence that is in parity with other sentences , courts look at comparable sentencing decisions.

Any disparity between sanctions for different offenders must be justified. CROWN POSITION [ 10 ] Crown counsel submitted the following sentences of imprisonment were appropriate for each count: a. Careless use of a firearm (section 86(1)) – six months, concurrent b. Careless storage of a firearm and ammunition (section 86(1)) – 30 days c. Unlawfully pointing a firearm (section 87) (two counts) – two years on each count, concurrent to each other d. Carrying a firearm for the purpose of committing an offence (section 88) – two years e.

Uttering threats (section 264.1(1)(a)) (two counts) – 60 days each, concurrent with each other [ 11 ] Although the above would result in an overall sentence of 51 months, the Crown submitted that a sentence in the range of 39 to 45 months of incarceration was appropriate, considering the principle of totality. I will discuss that principle shortly. [ 12 ] Additionally, Crown counsel sought the following ancillary orders under the Code : a firearms prohibition for life ( section 109(1) (a)), a DNA order (section 487.051(3)), and a forfeiture order for the firearms and ammunition seized (section 491).

The firearms prohibition is mandatory for a period of at least 10 years. The DNA order is discretionary because under

section 487.04 of the Code uttering threats is a secondary designated offence, as are pointing a firearm and carrying a firearm for the purpose of committing an offence when prosecuted by indictment. The forfeiture order is mandatory. [ 13 ] Crown counsel asked me to consider the following aggravating factors in relation to sentence: a. Evidence that the offence was motived by bias, prejudice, or hate based on sexual orientation (

section 718.2 (a)(ii) of the Code ). b. Evidence that the offence had a significant impact on Mr. Avery, considering his age and other personal circumstances, including his health and financial situation (

section 718.2 (a)(iii.1) of the Code ). c. That when Mr. Price arrived at the property with the shotgun, Mr. Avery tried to speak with him, asked him to leave and pleaded with him not to do anything stupid. The Crown submits that Mr. Price’s persistence in continuing to point and fire the shotgun, having been given the opportunity to leave, should be considered as aggravating. d. That in relation to the

section 88 offence of carrying a weapon for the purpose of committing an offence, the fact that the weapon was a firearm. e. That Mr. Price has a criminal record for charges related to neglect of and cruelty to animals. [ 14 ] Crown counsel submitted that there are no mitigating factors present. DEFENCE POSITION

[ 15 ] Defence counsel submitted that a conditional sentence of 12 months is an appropriate global sentence. He did not break down this submission by count, but submitted that five of the offences relate to a single criminal venture and thus should be sentenced concurrently. Defence counsel acknowledged that the uttering threats charge that relates to the phone call is distinct, and submits that this offence should be punished by time served. Both counsel agree that time served is five days, using a 1:1.5 credit.

Defence counsel also acknowledged the unlawful storage charge is distinct and submitted that it should be punished by a $500 fine. [ 16 ] Defence counsel noted that Mr. Price has a history of compliance with court orders, good family support, and a good employment history. He submitted that these factors make a conditional sentence appropriate. [ 17 ] Defence counsel submitted that the Crown has failed to prove beyond a reasonable doubt that the offences were motived by bias, prejudice, or hate based on sexual orientation and, as such, this should not be an aggravating factor.

He also submitted that the Crown has failed to prove that the offences had a significant impact on Mr. Avery. He noted that Mr. Avery has other stressors in his life that can explain his present circumstances. [ 18 ] With respect to Mr. Price’s criminal record, Defence counsel noted that it is dated and unrelated. Finally, with respect to the firearms prohibition, Defence counsel submitted that this would be a great hardship on Mr.

Price, who is a hunter, and asked that it be for the shortest possible duration. analysis Circumstances of the Offender [ 19 ] A Pre-Sentence Report was prepared and filed to inform me of Mr. Price’s circumstances. It is generally positive. Mr. Price is currently 52 years old. He works full-time as a carpenter’s helper. Although he has held numerous different jobs over the years, his work has been primarily in the construction industry. His current employer described him as a very hardworking and dependable employee. Mr. Price left school at age 16 and his training has been primarily on-the-job. [ 20 ] Mr.

Price grew up in Hatchett Cove, where he currently lives. His parents live in the area and he has a very close and supportive relationship with them. Mr. Price has three adult daughters with whom he has regular contact and good relationships. He was in a 30-year, on and off, common law relationship with the mother of his younger two children. At the time the Pre-Sentence Report was completed, that relationship had ended. Mr. Price is in good health with no issues of alcohol or drug abuse. [ 21 ] The probation officer who completed the Pre-Sentence Report testified at Mr. Price’s sentencing hearing.

He confirmed that Mr. Price has a history of compliance with court orders and that he had no concerns about Mr. Price not following any court-imposed conditions. Mr. Price indicated that he is willing to comply with any conditions I may impose. [ 22 ] It is noted in the Pre-Sentence Report that Mr. Price maintains his innocence. That is his right and it is a neutral factor for sentencing. Victim Impact Statement [ 23 ] A Victim Impact Statement was filed for Mr. Avery. Additional documentation supporting some of the statements made in the Victim Impact Statement were also filed. I will give an overview of Mr.

Avery’s Victim Impact Statement, noting the more significant elements. [ 24 ] Mr. Avery stated that he has become a different person as a result of these offences. He has difficulty staying focused, no longer trusts people and is easily startled. He has gained weight and his health has been negatively affected. He had worked as a funeral director and fireman for 33 years but has not been able to work since these events happened. He has been diagnosed with Post- Traumatic Stress Disorder (“PTSD”) and has been seeing a doctor and a psychiatrist regularly for treatment.

He is now on long-term disability and his income has decreased significantly as a result. [ 25 ] Mr. Avery’s claim of PTSD was supported by letters from his treating psychologist and by an independent medical examination report by a psychiatrist that was completed at the request of his disability insurer. I acknowledge that Mr. Avery had other stressors in his life, including the recent break down of his marriage. However, the evidence filed convinces me that his PTSD is a result of these offenses. I am also satisfied that Mr. Avery has been unable to work since September 2018 because of the PTSD. [ 26 ] Mr.

Avery’s claim of financial impact was supported by a letter from his long-term disability insurer and his 2018 Tax Return

Summary. These documents satisfy me that Mr. Avery’s income has been negatively affected as a result of his long-term disability claim. [ 27 ]

Section 718.2(a)(iii.1) of the Code requires that in imposing a sentence, a court shall take into consideration "evidence that the offence had a significant impact on the victim." Section 724(3) (

d) of the Code requires that the Crown prove beyond a reasonable doubt the existence of any aggravating factor that is disputed by the offender. I am satisfied that the Crown has established beyond a reasonable doubt that these offences have had a significant impact on Mr. Avery and that this is an aggravating factor. Evidence of Bias, Prejudice, or Hate [ 28 ]

Section 718.2(a)(

i) of the Criminal Code requires that in imposing a sentence, a court shall take into consideration "evidence that the offence was motivated by bias, prejudice, or hate” based on a number of factors including sexual orientation. Crown counsel submitted that this

section applies to Mr. Price. Mr. Price denied that it does, submitting that the Crown has not proven beyond a reasonable doubt that the offence was so motivated. [ 29 ] In R. v. Kandola , 2010 BCSC 841 , Groves J. considered

section 718.2 (a)(i):

11 In the past, through case law, courts have taken into consideration in determining whether an offence is motivated by hatredrelated to sexual orientation the following circumstances: whether there was anti-homosexual language uttered before, during, or afterthe offence was committed; whether the offence was committed in a high-visibility, for lack of a better term, location wherehomosexuals are known to frequent; the lack of provocation; any lack of prior interaction between accused and victim; extreme ordisproportionate violence; and finally, absence of any possible alternative explanation or motivation given the presence of some or all ofthe above-noted factors. [30] In the present case, there is no doubt that Mr.

Price used anti-homosexual slurs during the commission of the offences. Additionally, neither Mr. Avery nor Mr. Neal did anything to provoke the attack. However, the other factors listed in Kandola are notpresent. Most importantly, Mr. Price and Mr. Avery knew each other well and there is evidence of a possible alternative explanation forMr. Price’s actions. Mr. Price may have been motivated by his anger over the separation of Mr. Avery and his sister and thematrimonial disputes between them. [31] Although Crown counsel acknowledged that there could be a motive other than hate or prejudice with respect to Mr.

Avery, hesubmitted that this could not be the case for Mr. Neal who had not met Mr. Price previously. I cannot agree. Granting that Mr. Priceand Mr. Neal had not met before, this was not what I would characterize as a stranger attack. As Mr. Price’s current partner, Mr. Nealdid have a pre-existing connection to Mr. Price even if the two men had not previously met. [32] The language used by Mr. Price was offensive and reprehensible. However, I cannot find that the Crown has proven beyond areasonable doubt that Mr. Price was motivated by bias, prejudice, or hate.

Aggravating Factors [33] These are serious offences involving a firearm that was loaded when it was pointed at Mr. Avery and Mr. Neal. The risk ofserious injury or death was high. Mr. Price calling Mr. Avery a month before to threaten him, and then showing up on Mr. Avery’sproperty with a loaded gun, evidences some planning on Mr. Price’s part. In addition to the effect on Mr. Avery, which I have alreadyaddressed, these are also aggravating factors. [34] As noted, Mr. Price has a criminal record with three convictions, all related to animal neglect and cruelty. The most recentoffences are from 2013.

His record evidences that Mr. Price has been before the court previously and was on probation for two years. However, although crimes against animals are serious and often involve violence, I cannot find that these past offences are related to theoffences before the court now. Moreover, Mr. Price’s record is dated. As such, I do not consider his prior record as an aggravatingfactor. Mitigating Factors [35] The PSR was generally positive, disclosing a good employment history and a supportive family. Mr. Price was cooperativewith the police and has a history of compliance with court orders.

Other than three days in remand, he has been living in the communitysince these offences happened with no further incidents. These are mitigating factors. Comparable Sentencing Decisions [36] Counsel filed a number of cases and both agreed that they show a wide range in the sentencing precedents. [37] Two of the cases filed were for non-custodial sentences: R. v. Bergh, 2019 ABCA 151 and R. v. Parsons (1996), (BC CA), 113 C.C.C. (3d) 216, 33 W.C.B. (2d) 378 (B.C.C.A.). Neither is a good comparator for Mr.

Price’s circumstances. [38] In Bergh, the Alberta Court of Appeal overturned an imprisonment sentence and imposed a 12-month conditional sentence forcareless use of a handgun. Mr. Bergh had handled a handgun during sex and shot his partner. The injuries were serious but not fatal. Itwas not an intentional act. The Court of Appeal considered Mr. Bergh’s circumstances as “unique” (para. 27). He had a very datedrecord, had pled guilty at the earliest opportunity, had completely disavowed alcohol and drugs (which were a factor in the offence) andhad sold all of his firearms by the time of sentencing. Mr.

Price’s actions were intentional and many of the mitigating factors present inBergh are not present in this case. [39] In Parsons, the British Columbia Court of Appeal overturned a fine for careless carrying of a firearm and substituted a sentenceof a conditional discharge with two-years of probation. Mr. Parsons had been carrying an unloaded rifle around his junkyard, and whenhe turned rapidly to walk away from the police, the barrel, which had been pointed downwards, “may have elevated a bit” (para. 3). Mr.Parsons was a Canadian Ranger with no relevant criminal record. Again, Mr.

Parson’s actions were not intentional. This case isdistinguishable from Mr. Price’s both in terms of the seriousness of the offence and the intentionality. [40] Several cases filed were not good comparators for Mr. Price’s circumstances because they were either more serious (R. v.Bayani (2003), (ON CA), 173 O.A.C. 36, 58 W.C.B. (2d) 83 (C.A.) and R. v. Padda, 2019 BCCA 351) or lessserious (R. v. Chalifoux (1995), 1995 ABCA 444 , 174 A.R. 348, 29 W.C.B. (2d) 81 (C.

A) and R. v. Roberts (1992), (BC CA), 15 W.C.B. (2d) 380, 10 B.C.A.C. 158 (C.A.)). All of these cases resulted in prison sentences with the lowestterm being three months. R. v. Blackhall (1988), 6 W.C.B. (2d) 200, [1988] B.C.J. No. 2593 (C.A.) was also filed but the sentence therewas largely dictated by the offender’s refusal to seek psychiatric help and so I did not find it to be a good comparator. [41] The cases filed that were most comparable to Mr. Price’s are: a. R. v. Riggs, 2016 NLTD(G) 214. Mr.

Riggs was sentenced for pointing a firearm (12 months plus 18 months’ probation), carelessuse of a firearm (six months), possession of a weapon for a dangerous purpose (nine months), assault with a weapon (six months),uttering threats (four months), unlawful possession of a firearm (one month), and failure to comply with an undertaking (two months). Taking into account concurrency of the sentences, the total sentence was for 15 months imprisonment and 18 months of probation. Thecharges arose out of a domestic dispute during which Mr. Riggs held a loaded shotgun against the neck of his domestic partner, assaulted

her, and threatened to shoot her and his father. An important mitigating factor in Riggs, that is not present in this case, is that there wasno evidence of planning (para. 24). Aggravating factors in Riggs, that are not present here, include a criminal record that included arecent conviction for uttering threats, and the domestic context of the dispute (paras. 22 and 23). b. R. v. J. (T.C.), 1999 BCCA 577. The 23-year-old offender was sentenced for two counts of careless use of a firearm and one countof pointing a firearm.

He had discharged a rifle through the door of his mother’s home and then driven to the home of his girlfriendwhere police confronted him. Mr. J. pointed the rifle at a police officer and threatened an ambulance attendant with death. Alcohol wasa factor and Mr. J. had a history of alcohol abuse. He was youthful, was participating in alcohol rehabilitation programs, and had noadult record. The Court of Appeal upheld the trial judge’s imposition of a nine month sentence, followed by 18 months’ probation(global). c. R. v. Huson, 2009 BCSC 1825.

The 30-year-old offender, with no prior record, pleaded guilty to pointing a firearm, assault,uttering threats and use of a firearm while attempting to commit an offence. The victim was his common-law spouse. Mr. Huson wentto her home, made threatening comments (“If I were to kill someone”) in her presence, took two guns into the living room, loaded andunloaded the guns, and assaulted her. The global sentence was 15 months less time served. There was a mandatory minimum sentenceof one year imprisonment for one of the offences. d. R. v. Whalen (1994), (NL SC), 114 Nfld. & P.E.I.R. 299, 356 A.P.R. 299 (Nfld.

S.C.(T.D.)). The 51-year-oldoffender, with no prior record, pleaded guilty to assault with a weapon, unlawful possession of a weapon and uttering threats. Mr.Whelan was out with a group of friends and acting jealously towards his girlfriend. During the evening, he threatened to kill everyonebefore the night was out. He was carrying a gun at the time. Later that night, he threatened to kill his girlfriend. Once back at hisgirlfriend’s apartment, he took a shotgun and pointed the gun at his girlfriend’s head. She grabbed the end of the barrel and ducked. Thegun discharged, but harmlessly. Mr.

Whalen was in the process of reloading the shotgun when he was overpowered by others who werepresent in the home. In the process, a second shot discharged, hitting the living room wall. Alcohol was a factor in the offencesalthough Mr. Whalen had no history of alcohol abuse. For assault with a weapon the trial judge imposed a sentence of nine months; forpossession of a weapon for a dangerous purpose six months concurrent; for uttering threats six months concurrent, all followed by twoyears’ probation. e. R. v. Russell (1992), 10 B.C.A.C. 68, 15 W.C.B. (2d) 189 (C.A). Mr.

Russell, who pleaded guilty to uttering threats and topossession of a weapon for a purpose dangerous to the public peace, was sentenced to two years of imprisonment less a day for eachcount (concurrent) followed by 12 months of probation. Mr. Russell, who was impaired by drugs, had an argument with his commonlaw spouse when her mother called. He threatened her mother with death. The mother called the police and when Mr. Russell waslocated, he was wandering around his house with a loaded rifle. Mr. Russell had a serious criminal record that included acts of violence.

In upholding the sentence, the court of appeal considered that he continued to have a serious potential for violence. sentence [42] In R. v. Boutilier, 2006 NLTD 30, O’Regan J. wrote that in a weapons-related offence denunciation and general and specificdeterrence are paramount objectives in sentencing (para. 3). He also noted that rehabilitation must always be given consideration. [43] Mr. Price seeks a conditional sentence. Neither counsel addressed me as to whether a conditional sentence was available forthe

section 88 offence by reason of

section 742.1(e)(iii) of the Code, which states that a conditional sentence is not available for anoffence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years that involved the use of a weapon. However, I do not need to decide that issue. Regardless of its availability, I do not consider that a conditional sentence would beappropriate for Mr. Price because it would not adequately address the principles of denunciation and deterrence. [44] I accept that Mr.

Price has shown himself to be a good candidate for respecting court-imposed conditions and that a conditionalsentence is often better at achieving the restorative objective of rehabilitation. However, given the violent nature of these offences, theuse of a loaded weapon, the fact that events did not arise spontaneously but involved some planning on Mr. Price’s part, and the harmthat has been done to Mr.

Avery, I find that an incarceration sentence is appropriate. [45] In addition to the ancillary orders that I will address in my final disposition, the following are the sentences that I determine asproper for each offence: a. Careless use of a firearm (section 86(1)) – six months b. Careless storage of a firearm and ammunition (section 86(1)) - five days c. Unlawfully pointing a firearm (section 87) (two counts) – 12 months plus 18 months of probation for each count d. Carrying a firearm for the purpose of committing an offence (section 88) – nine months e.

Uttering threats (section 264.1(1)(a)) (two counts) – two months, each count [46] In arriving at these sentences, I have considered Mr. Price’s personal circumstances and the aggravating and mitigating factorsalready reviewed. I have considered the principle of parity and believe that the above sentences are in line with Riggs and the other cases

that I considered as good comparators. Single Criminal Venture [47] If the above sentences were served consecutively, as they presumptively would be, the total sentence would be 43 months andfive days of imprisonment. I agree with both counsel that most of the offences form part of a single criminal venture and thus thesentences should be served concurrently (See R. v. Hutchings, 2012 NLCA 2, at para. 84, and R. v. Roberts, 2019 NLCA 43, at para. 37.) The two exceptions are the section 86(1) charge for careless storage of a firearm and ammunition, and one of the uttering threats chargesbecause the call to Mr.

Avery a month before was a distinct event. The sentences for those two offences should thus presumptively beserved consecutive to the other sentences. Totality [48] Applying concurrency of sentences for the single criminal venture results in a total sentence of 14 months and five days ofimprisonment followed by 18 months of probation. Following the direction in Hutchings and Roberts, I must take a final look at thecombined sentence and consider the principle of totality.

The principle of totality requires that the total sentence not be unduly long orharsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. I am satisfiedthat the sentence I have arrived at is appropriate and fit. It is not unduly long or harsh and it is commensurate with the seriousness ofthese offences and Mr. Price’s responsibility for them. I will not reduce it further. Kienapple [49] In R. v.

Kienapple, (SCC), [1975] 1 S.C.R. 729, the Supreme Court of Canada ruled that an offender cannot beconvicted of two criminal offences on the same or substantially the same elements and facts. This rule is frequently referred to as theKienapple principle. [50] Counsel both made submissions with respect to the application of the Kienapple principle in this case and both agreed the onlycharge that could potentially be subject to it is the charge under section 86(1) for careless use of a firearm, which has elements commonto the charge for pointing a firearm under section 87(1).

Counsel both agreed that in dealing with similar cases, courts most often reliedon the offences being a single criminal venture to make sentences concurrent rather than entering judicial stays using the Kienappleprinciple. Crown counsel also noted that in Mr. Price’s case I found that his careless use included his shooting the gun in the proximityof Mr. Avery and Mr. Price, which is an additional element not contained in the offence of pointing a firearm or carrying a firearm forthe purpose of committing an offence.

I agree with the Crown’s assessment on this point and I have decided that the Kienapple principleshould not be applied in the present case. Credit for Pre-Trial Custody [51] Mr. Price shall be credited for five days of pre-trial custody such that he has 14 months of custody remaining. DISPOSITION Imprisonment and Probation [52] Mr. Price is sentenced as follows: a. Count one: Careless use of a firearm (section 86(1)) – six months, concurrent with Count four b. Count three: Careless storage of a firearm and ammunition (section 86(1)) – five days of time served c.

Count four: Unlawfully pointing a firearm at Edison Avery (section 87) – 12 months plus 18 months of probation d. Count five: Unlawfully pointing a firearm at Christopher Neal (section 87) – 12 months plus 18 months of probation, concurrentwith Count four e. Count six: Carrying a firearm for the purpose of committing an offence (section 88) – nine months, concurrent with Count four f. Count seven: Uttering threats to Edison Avery (section 264.1(1)(a)) – two months, consecutive to Count four g.

Count eight: Uttering threats to Christopher Neal (section 264.1(1)(a)) – two months, concurrent to Count four [53] Count two was previously withdrawn by the Crown. [54] I will hear from counsel with respect to the conditions of probation before finalizing that order.

Ancillary Orders [ 55 ] In addition, I impose the following ancillary orders: a. Pursuant to section 109(1) (

a) of the Code , a firearms prohibition for 10 years. b. Pursuant to

Section 487.051(3) of the Code , a DNA order in Form 5.041. I have exercised my discretion to make this order because four of the offences committed are secondary designated offences, and Mr. Price has acted violently and with some planning. c. Pursuant to

section 491 of the Code , a forfeiture order for the firearms and ammunition seized. ______________________________ Katherine O'Brien Justice