R v Burnett, 2017 MBCA 122

Citation: R v Burnett, 2017 MBCA 122 Date: 20171221 Docket: AR16-30-08721 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella BETWEEN : HER MAJESTY THE QUEEN ) A. C. Bergen ) for the Appellant ) Appellant ) T. E. Bourcier and ) M. G.

Enright - and - ) for the Respondent ) TAYLOR DARYL FORTIN BURNETT ) Appeal heard: ) October 30, 2017 ) (Accused) Respondent ) Judgment delivered: ) December 21, 2017 mainella JA Introduction [ 1 ] The Crown seeks leave to appeal and, if granted, appeals the accused’s sentence of 90 days’ imprisonment, to be served intermittently, followed by two years of probation on a charge of breaking, entering and stealing a firearm contrary to section 98(1) (

b) of the Criminal Code (the Code ). [ 2 ] The issues on this appeal are two-fold. First, whether deference should be shown to the sentencing judge’s decision that this was a case of “exceptional circumstances” ( R v Peters , 2015 MBCA 119 ; R v Tran (A) , 2015 MBCA 120 at para 2 ; and R v Racca , 2015 MBCA 121 ). Second, if the sentence imposed was unfit, would it serve the ends of justice to re-incarcerate the accused now given that he has already successfully served his period of incarceration in the approximate one year since he was originally sentenced.

Background [ 3 ] On the morning of May 29, 2015, the accused forcibly broke into the home of a licenced gun owner who was away. Inside her home, she stored a restricted firearm, a nine-millimetre semi-automatic handgun, together with ammunition in a locked gun safe. The accused rifled through the home looking for the handgun. When the gun safe was found, it was pried open. Nothing else was stolen from the home except for the handgun and ammunition. Police identified the accused several days later based on a fingerprint found on the gun safe. No one else was arrested for the offence.

Upon his arrest, the accused did not cooperate in the recovery of the handgun and ammunition which, to date, have not been located. [ 4 ] At the sentencing, the accused, for the first time, put forward the explanation that, on the day in question, he was fishing and drinking with a friend. The friend told him he could make some “easy money” by helping to steal the handgun. The accused agreed and was paid $800 for the job. He says he was not the one who planned the crime and was not the only one who broke into the residence.

The Crown did not dispute this version of events. [ 5 ] The accused is 23 years old and is an oil rigger by occupation. His prior criminal record consisted of a conviction for drug possession from 2013 for which he received a suspended sentence. At the time of the offence, he had a problem with alcohol. Since his arrest, he has maintained sobriety. Reference letters filed at the sentencing evidence strong community support. His employer did not terminate his employment upon learning of the accused’s arrest. He is in a long-term common-law relationship and his partner is a nurse.

The references describe the incident as being completely out of character for the accused and, because of it, he has recognized the errors of an immature lifestyle and grown up. The Crown described the accused as being a “productive member of society” except

for this offence. [6] The accused pleaded guilty. At the sentencing, the Crown asked for a term of imprisonment of two years less a day,to be followed by one year of probation.

Counsel for the accused did not dispute the seriousness of the offence, but argued that this wasa case of exceptional circumstances to deviate from what would otherwise be an appropriate sentence, and suggested a 90-dayintermittent sentence to be followed by two years of probation. [7] In his reasons, the sentencing judge used strong language to express his contempt for the “idio[cy]” of the decisionmade by the accused to break into the victim’s home and steal her handgun and ammunition because of the influence of a friend.

Hedescribed the offence as “very serious” and that the sentences for breaking into a house start at “two years.” He also mentioned that thiswas not a simple theft and that handguns are stolen for the “black market” and end up being used in violent crimes. He said that“deterrence and denunciation” are important for this sort of crime so that people can live safely without fear of being confronted by“fools” breaking into their homes.

After reviewing some of the accused’s background, he stated: However, I fail to see what sending you to jail for two years less a day is going to accomplish for society or for the principles of justice oranything like that. You have clearly shown that you do have the ability to hold a job, to have a relationship, you have supports in the community and lots ofpeople are prepared to back you. Did you read your letters of reference? There is not one person there who didn’t say I don’t understand what he was thinking. What washe thinking? And I am telling you, I do not know what you were thinking either.

It is just mindboggling that someone who has no priorcriminal involvement would decide that the way to alleviate his money problem is to break into a house and steal a gun—it is justmindboggling. However I am prepared to give account to the 22 years that you have basically been a law abiding citizen, the fact that you have a lot ofsupport, the fact that you have a job and that losing your job would not in any way further the interests of justice. [8] At the hearing of the appeal, the panel was advised of the accused’s post-sentencing conduct over the last year.

Hehas been promoted at his job as an oil rigger and has some supervisory functions. He and his common-law partner have purchased ahouse together. He reported without incident on 20 occasions on weekends to serve his jail sentence and has completed it. He wasdescribed as a model inmate. He has participated fully in his probation. The probation officer advised that the accused is remorseful forhis actions but not unequivocally. The accused told the probation officer that he will not co-operate in any way with the recovery of thestolen handgun and ammunition.

Counsel explained to the panel that the accused fully recognizes the harm the stolen handgun andammunition poses but he has made a choice to not assist in its recovery. There is no evidence in the record as to the accused’smotivation for not cooperating in the recovery of the handgun and ammunition.

Sentencing for the Offence of Breaking, Entering and Stealing a Firearm [9] Sentencing ranges and starting points are “tools” (R v Lacasse, 2015 SCC 64 at paras 2, 57) that appellate courts havedesigned to minimize the disparity of sentences between similar offenders committing a particular offence in like circumstances (seesection 718.2(

b) of the Code). As Wagner J (as he then was) explained in Lacasse, “sentences that are too lenient and sentences that aretoo harsh can undermine public confidence in the administration of justice” (at para 12). [10] These sentencing tools are, however, not rigid tariffs that fetter the discretion of a sentencing judge to impose anindividualized sentence. Sentencing judges enjoy “considerable discretion” (R v LM, 2008 SCC 31 at para 17) as “there is no such thingas a uniform sentence for a particular crime” (R v M (CA), (SCC), [1996] 1 SCR 500 at para 92).

The law requires asentence to be fit; it does not require the sentence to be right (if such an outcome is possible).

So long as a sentencing judge respects theprinciple of proportionality, based on a reasonable application of the relevant sentencing principles and objectives to the circumstances,he or she may impose a sentence that departs, upward or downward, from a judicially created sentencing range or starting point (see R vMcCowan (KJ), 2010 MBCA 45 at para 11; Lacasse at paras 57-61; and R v RJ, 2017 MBCA 13 at para 18). [11] In R v Duerksen, 2012 MBCA 41, this Court discussed the starting point in Manitoba for a sentence for the offence ofbreak and enter in relation to a dwelling-house (see section 348(1) of the Code).

Given the seriousness and prevalence of the offence,this Court noted, “We have repeatedly held that, absent exceptional circumstances, someone who breaks into another’s home onceshould generally expect a sentence in the range of two years” (at para 4). [12] The offence in this case—breaking, entering and stealing a firearm—was an offence created in 2008 (see

section 9 ofthe Tackling Violent Crime Act, SC 2008, c 6). It was one of a series of measures introduced by Parliament to address gun-related crime. The maximum punishment for the offence, life imprisonment, reflects its gravity. [13] The offence of breaking, entering and stealing a firearm where the place broken into is a dwelling-house is a moreaggravated form of break and enter than the historic offence in

section 348 of the Code for two reasons. First, it is not uncommon, as isthe case here, for such break-ins to be targeted because the victim is known to possess a firearm and firearms are a prized commodity onthe black market. Second, the purpose of the crime is to acquire a dangerous item that can be used to facilitate violent crimes. Thedanger of gun-related crime was well described in R v Wilkinson and others, [2009] EWCA Crim 1925 (BAILII) (at para 2):

The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that iswhy they use them: and that is why they organise their importation and manufacture, supply and distribution.

Sentencing courts mustaddress the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always withdevastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community. [14] The illicit acquisition of a firearm and the harm firearms can cause when they are possessed by persons other thanlicenced gun owners are significant public dangers.

Because restricted or prohibited firearms are difficult to obtain in Canada by legalmeans, there is a significant black market for such weapons and they are highly coveted by criminals for nefarious purposes (see R vNur, 2013 ONCA 677 at para 54, aff’d 2015 SCC 15). [15] This Court has not previously addressed the sentencing range or starting point for the offence of breaking, entering andstealing a firearm where the place in question is a dwelling-house. Because such an offence is firearm-related, denunciation and generaldeterrence are the primary sentencing objectives.

Given our comments about breaking into a dwelling-house generally in Duerksen, inmy view, the starting point for the offence of breaking, entering and stealing a “restricted firearm” (section 84(1) of the Code) from adwelling-house for a mature offender pleading guilty with no record and prior good character would be a sentence of 30 months’imprisonment. In the case of a “prohibited firearm” (section 84(1) of the Code) for the same type of offender, the starting point wouldbe three years’ imprisonment.

The subsequent use of a stolen firearm in a violent crime, a connection between the break and enter and acriminal organization, or the use of violence during the break and enter are some of the aggravating factors relevant for the Court toconsider in imposing sentence. [16] Because the definition of “firearm” (section 2 of the Code) is a broad one and can include items such as pellet guns orair guns (see R v Dunn, 2013 ONCA 539, aff’d 2014 SCC 69), my comments on the relevant sentencing starting point for an offencecontrary to section 98(1)(

b) of the Code are limited only to those cases involving a “restricted firearm” or “prohibited firearm” as definedby section 84(1) of the Code or by regulation. The Parties’ Positions [17] The Crown submits that the sentencing judge imposed an unfit sentence which he arrived at by the error of failing togive appropriate consideration to the aggravating factors in the case; particularly that this was a firearm-related offence and that theaccused’s moral blameworthiness in the commission of the offence was high. The Crown calls the accused’s personal circumstances“unexceptional”.

It says that there is no principled reason in this case to justify anything but a lengthy jail sentence based on thesentencing objectives of denunciation and general deterrence. [18] The accused argues that the appeal should be dismissed on the basis of the standard of review (see R v Houle, 2016MBCA 121 at para 11). He submits that great deference is owed to the sentencing judge’s finding of exceptional circumstances and thatsuch a finding was made without a material error and was reasonably open to him on the record.

The accused says that the sentencingjudge understood a lengthy term of imprisonment was the starting point for the offence and was well aware that the sentencingobjectives of denunciation and general deterrence were the primary sentencing considerations, but he also was entitled to emphasizerehabilitation given the accused’s age, lack of record, community support, employment and positive post-arrest conduct. [19] In the alternative, the accused argues that, if the sentence must be increased because it is unfit or was arrived at bymaterial error, it would be unjust to re-incarcerate him given that he has completed his term of imprisonment and moved on with his life.

He requests a permanent stay of the execution of the sentence if it is varied by this Court as the Crown requests (see R v Proulx, 2000SCC 5 at para 132; R v RAR, 2000 SCC 8 at para 35; R v Sinclair, 2012 MBCA 24 at para 21; R v Anderson, 2014 SCC 41 at para 65; Rv Smickle, 2014 ONCA 49 at para 10; R v McMillan (BW), 2016 MBCA 12 at para 42; and R v Anderson, 2017 MBCA 31 at paras 31-37(Anderson (MBCA)). The Sentencing Principle of “Exceptional Circumstances” [20] A review of the sentencing judge’s reasons confirms that he did not make an explicit finding that this was a case ofexceptional circumstances.

However, when his reasons are read in the context of the entire record, I agree with the submission of theaccused that the sentencing judge’s justification for a sentence that otherwise appears to be unfit is that this was a case of exceptionalcircumstances. [21] The concept of “exceptional circumstances” is a common-law sentencing principle that is “nebulous and devoid of aprecise definition” (Tran at para 17). There has been a lack of coherent formulation of the principle historically.

Sometimes it has beenused to refer to the type of sentence that is to be imposed absent exceptional circumstances (e.g., imprisonment for drug trafficking—seeR v Stevens, [1973] MJ No 7 at para 1 (CA); or for serious commercial fraud or theft involving a breach of trust—see Regina v Grossman(1980), (ON CA), 53 CCC (2d) 143 at 145 (Ont CA)).

On other occasions, it has been used to refer to the length ofsentence to be imposed absent exceptional circumstances (e.g., a two-year sentence for break and enter of a dwelling-house—see R vScanlon, (MB CA), 1995 CarswellMan 332 at paras 10-13 (CA); or a three to five-year sentence for importation ofone kilogram of cocaine and a six to eight-year sentence for importation of multiple kilograms of cocaine—see R v Cunningham (1996), (ON CA), 104 CCC (3d) 542 at 546-47 (Ont CA)). [22] Leaving aside this theoretical confusion, the practical effect of this sentencing principle is that it acts as a safety valvefor the justice system in the “rare case” where the circumstances are “above and beyond the norm” (R v Voong, 2015 BCCA 285 at para59).

While Lacasse was not a case about the exceptional-circumstances principle, the concept is easily reconcilable with the observationof Wagner J that “it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed

in the past for a similar crime, is not demonstrably unfit” (at para 58). [23] Saying that exceptional circumstances are a sentencing principle is a far easier proposition than defining whenconditions are so out of the ordinary that a sentencing court may apply the principle.

However, repeated pronouncements from theSupreme Court of Canada as to the deference to be afforded to a sentencing judge’s discretion in imposing sentence provide some clue tothe current function of the principle of exceptional circumstances in the law of sentencing. [24] The role played by the principle of exceptional circumstances is separate and apart from a sentencing judge’s generaldiscretion to depart downward or upward from a starting point or sentencing range to impose an individualized sentence based on thecircumstances of the particular case.

As LeBel J noted in R v Nasogaluak, 2010 SCC 6, “[a] judge can order a sentence outside thatrange as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range ofappropriate sentences is not necessarily unfit” (at para 44). See also Lacasse at paras 57-61. [25] The law does not require a sentencing judge to find “exceptional circumstances” to justify imposing a sentence thatmerely departs downward from a judicially created starting point or sentencing range (see R v Scott, 2013 NSCA 28 at paras 26, 53; andR v Howell, 2013 NSCA 67 at para 9).

The comments of Twaddle JA in R v Dew, 1998 CarswellMan 467 (CA), leave to appeal to SCCrefused [1998] SCCA No 591, a case where the offender was involved in a conspiracy to traffic cocaine, are instructive (at paras 5, 9): This Court has held on occasions prior to the introduction in 1996 of the conditional sentence that a prison term should be imposed in allbut exceptional circumstances for the offence of trafficking in cocaine or conspiring to do so. That ruling is still valid, but does notprevent the imposition of a term of imprisonment to be served conditionally in the community.

In our view, exceptional circumstances need not exist in order to justify an order permitting a sentence of imprisonment to be servedconditionally in the community.

All that need be established is that a fit sentence for the offence is one of less than two years'imprisonment; that service of the sentence in the community will not endanger the community’s safety; and that service of it in thecommunity is consistent with the fundamental purpose and principles of sentencing. [26] To require that “exceptional circumstances” be established before a sentence can be imposed below an establishedstarting point or sentencing range would be an artificial fettering of a sentencing judge’s discretion.

Only Parliament has the legalauthority, subject to the Canadian Charter of Rights and Freedoms, to establish a mandatory minimum punishment for a particularoffence (see R v McDonnell, (SCC), [1997] 1 SCR 948 at paras 33-34; and R v Lloyd, 2016 SCC 13 at paras 1, 45).

Moreover, to view exceptional circumstances as the only time a sentence below an established starting point or sentencing range can beimposed is a misunderstanding of the principle of exceptional circumstances and the rarity of it arising. [27] In a situation of exceptional circumstances, the sentencing judge does something far more dramatic than simplyshowing leniency from a starting point or sentencing range; usually a non-incarceratory sentence in the form of a suspended sentence isimposed for an offence that commonly results in a lengthy period of incarceration.[1] Such a sentence largely foregoes the objectives ofdenunciation and general deterrence; the overarching goal in such cases is rehabilitation, not punishment (see R v Taylor (1997), (SK CA), 122 CCC (3d) 376 at paras 31-33 (Sask CA); and R v Dunn, 2011 NBCA 19 at para 16).

On first impression,such an approach will appear to be more than what some may call a “soft sentence” given the usual sentences for particular offences; thesentence will appear to be manifestly inadequate without further explanation. [28] While there are an infinite variety of offenders, as well as ways in which offences can be committed, such that theapplication of the exceptional-circumstances principle cannot easily be predicted, there are a few core features to it.

Exceptionalcircumstances can arise from the way in which an offence is committed or from the circumstances of the offender or a combinationthereof (see R v Gutoski, (MB CA), 1990 CarswellMan 1 at para 12 (CA); and Scanlon at para 13). A sentencingjudge’s assessment of whether there are exceptional circumstances is a holistic exercise based on an evaluation of the totality of thecircumstances and all of the relevant sentencing objectives and principles (see Tran at para 20).

Ensuring the overall proportionality of asentence when considering if an offender has demonstrated exceptional circumstances is important because, if a sentence does notreconcile in a principled fashion the interests of the individual and parity, it cannot be proportional (see Lacasse at para 53).

Priordecisions provide guidance as to what factors may, or may not, form the basis of a finding of exceptional circumstances (see R vHenderson, 2012 MBCA 9 at para 47; and Tran at para 24). [29] Findings of exceptional circumstances occur only in the clearest of cases when there are “multiple mitigating factors”of significance (Tran at para 24) or the offender’s motive for committing the offence is highly unusual.

In terms of motive, I agree withthe comments of the New Brunswick Court of Appeal in R v Chaulk, 2005 NBCA 86, that exceptional circumstances likely will not existwhere the offender was “driven solely by greed” and his or her conduct occurred over “a considerable period of time” (at para 8).

Seealso Regina v Holt (1983), (ON CA), 4 CCC (3d) 32 at 51 (Ont CA), leave to appeal to SCC refused [1983] SCCANo 474. [30] Where there is an arguable case of exceptional circumstances, two themes are common in the case law that sentencingcourts focus on: has the accused concretely demonstrated that he or she has turned his or her life around since his or her arrest, andwould the fundamental purpose of sentencing (see

section 718 of the Code) be better served by a custodial or non-custodial sentence forsomeone who has proven to have turned his or her life around since his or her arrest (see Peters at para 28). [31] Like any sentencing decision on appeal, a finding by a sentencing judge of exceptional circumstances is entitled to greatdeference (see Tran at paras 13, 30). That said, the rarity of the exceptional-circumstances principle being available to sentencing judgesis illustrated by the remarks of Drapeau CJNB in Murdoch v R, 2015 NBCA 38 (at para 47): “fair warning to sentencing judges, it is areversible error of principle to ‘categorize the ordinary as exceptional’”.

[32] The parties agree that there are no exceptional circumstances here that arise from the way in which the offence wascommitted. The accused’s moral blameworthiness is high, as is the gravity of his crime. He was paid to break into a stranger’s homeand stole a handgun and ammunition from it. He understood the dangers that the handgun and ammunition pose to innocent third parties.

The accused’s failure to make a good-faith effort to assist authorities in the recovery of the handgun and ammunition is not anaggravating factor; it would be an error of principle to use his right to silence against him to increase his sentence. However, byexercising that right, he decided to not mitigate his high moral blameworthiness which some offenders similarly situated do bycooperating with authorities (see R v H (CN) (2002), (ON CA), 170 CCC (3d) 253 at paras 42-45 (Ont CA)).

Thesentencing judge’s implicit finding of exceptional circumstances rests entirely on the accused’s circumstances. [33] The personal circumstances that the sentencing judge cited in his reasons to justify the sentence imposed—youth,general law-abiding attitude, strong support from others, employment and possible job loss by a lengthy custodial sentence—are factorsthat are common to many offenders and appropriate factors to take into account to mitigate sentence.

The only observation I make onthese factors is that loss of employment “does not displace general deterrence and denunciation” (R v JJW, 2012 NSCA 96 at para 40). However, when these factors are considered cumulatively, I see nothing extraordinary as to the accused’s personal circumstances. If theaccused’s sympathetic circumstances were to amount to exceptional circumstances for a serious pre-meditated profit-motivated crime,the principle would be meaningless; the exception would be the rule as opposed to it being the rare case.

Sentencing courts must takecare not to conflate “sympathetic circumstances” with “exceptional circumstances”; the two ideas are quite distinct in terms of their legaleffect. [34] The situation here is more than simply a disagreement with the sentencing judge as to how he weighed the relevantsentencing objectives and principles in the particular circumstances. I have been persuaded that he made a material error that necessitatesappellate correction. As in the cases of R v Rutter, 2017 BCCA 193; and Racca, the sentencing judge overemphasised the principle ofrehabilitation of the accused.

With respect, his analysis of proportionality was too narrow. Proportionality is a much wider inquiry thansimply looking at an individual’s circumstances and the effect of a sentence on him or her (see Lacasse at paras 53-54; and R v Ipeelee,2012 SCC 13 at paras 36-39).

When punitive aspects, such as denunciation and general deterrence, are paramount because of theseriousness of the offence, coupled with a high degree of moral blameworthiness of the offender, as is the case here, “they cannot shiftthe emphasis to restorative objectives and rehabilitation” (R v Golden, 2009 MBCA 107 at para 111 per Freedman JA; see also R vHamilton (2004), (ON CA), 186 CCC (3d) 129 at para 103 (Ont CA)). [35] In my judgment, the sentencing judge’s comment that he “fail[ed] to see” how sending the accused to jail for a lengthyperiod of time would accomplish for society a just result, did not give adequate consideration to the sentencing objectives ofdenunciation and general deterrence given the circumstances. [36] I do, however, agree with the sentencing judge that the accused’s personal circumstances allowed for the imposition ofa sentence with a degree of leniency; the Crown conceded as much in its submissions by not requesting a penitentiary sentence.

Theaccused is young, has a good background and has rehabilitative prospects. His first term of imprisonment, while it should be lengthy,should not be a penitentiary sentence. [37] That said, this is not a case of exceptional circumstances. The accused’s personal circumstances are unremarkable andhe did not turn his life around to a great degree. While he is to be credited for addressing his shortcomings, such as excessiveconsumption of alcohol, he demonstrated the capacity to work and be law abiding before his decision to participate, for profit, in atargeted break-in to steal a handgun.

It is difficult to see how the fundamental purpose of sentencing, as set out in

section 718 of theCode, could be achieved on these facts by anything but a lengthy period of incarceration. A 90-day intermittent sentence followed byprobation is an unfit sentence for this offence in the circumstances. In my judgment, it is necessary to set aside the sentence previouslyimposed and re-sentence the accused. The difficult resulting question is should the accused be re-incarcerated despite already havingserved his custodial sentence?

Re-Incarceration and the Imposition of a Fit Sentence [38] Re-incarceration of an accused by an appellate court after he or she has already served the custodial portion of his or hersentence gives rise to the perception of “unfairness” (R v Symes (1989), (ON CA), 49 CCC (3d) 81 at 96-97 (OntCA)), is a “hardship” (Hamilton at para 165) and risks a danger to the long-term security of the community because any positive steps anaccused has taken towards rehabilitation may be lost.

The overarching question for the appellate court is whether re-incarceration of anaccused will “serve the ends of justice” (Hon Gilles Renaud, The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis, 2009) at paras 5.11-5.14). [39] In Smickle, a five-member panel of the Ontario Court of Appeal made two observations on the question of re-incarceration which I adopt.

First, citing the comments of Green CJNL in R v Taylor, 2013 NLCA 42 at para 133, the Court accepted theprinciple that the powers of an appellate court are sufficiently broad that it can correct a sentencing judge’s error and give the necessaryguidance going forward while, at the same time, making allowance for an accused’s current circumstances to ensure his or herrehabilitative prospects are not unduly disrupted.

Second, in the case of serious offences where denunciation and deterrence are theprimary considerations, re-incarceration may be necessary “despite the significant hardship to [an accused] and the risk it may pose to his[or her] rehabilitation and full reintegration into the community” (Smickle at para 18). See also R v GGS, 2016 MBCA 109 at paras 67-72. [40] This Court has discussed the relevant principles to be considered on re-incarceration in several instances recently (seeMcMillan at para 36; R v Norton, 2016 MBCA 79 at paras 58-64; Anderson (MBCA) at para 32; and R v Okemow, 2017 MBCA 59 atparas 141-42).

At the end of the day, the exercise of discretion as to whether re-incarceration will serve the ends of justice is acontextual and fact-driven analysis applied to the individual situation. Here, the following features of this case are relevant to consider:

• The offence for which the accused was convicted was serious. • The delays in this case have not been inordinate or attributable to either party. • The accused completed serving his jail sentence 20 weeks after being sentenced on November 28, 2016 (i.e., early March 2017). • The accused took rehabilitative steps before and after being sentenced that demonstrate maturity, including disassociation from negative peers. • Re-incarceration of the accused would have a significant impact on his livelihood and his ability to support himself. • There has been no post-sentence misconduct.

Therefore, reincarceration may compromise his prospects for rehabilitation. • The accused was a model inmate; accordingly, had he been sentenced to a lengthy jail sentence originally, he would likely have been released by now. [ 41 ] Upon a cumulative consideration of these factors, I am satisfied that the sentencing objectives of denunciation and general deterrence can be properly respected without re-incarcerating the accused at this time.

My reasons hopefully provide some clarity going forward as to the relevant starting point for the offence of breaking, entering and stealing a firearm, as well as the limited and rare role exceptional circumstances should play in day-to-day sentencing in the courts of this province, even for a sympathetic accused.

Permanently staying the remaining jail sentence of this accused, given that he is being re-sentenced almost a year later through no fault of his own, would not be contrary to the interests of justice. [ 42 ] In terms of what is a fit sentence in the circumstances, some deference should be afforded to the sentencing judge’s emphasis on rehabilitation to temper the effect of denunciation and general deterrence given the positive circumstances and youth of this accused. That was a conclusion reasonably open to him on the record and it should therefore be respected.

Because of the sentencing judge’s emphasis on rehabilitation, a departure downward from the 30-month starting point for breaking, entering and stealing a restricted firearm in relation to a dwelling-house is appropriate.

That said, I am of the view that, given there is no dispute that the accused has the ability to pay a large fine because of his occupation, it is appropriate to impose a significant fine on top of a reduced period of imprisonment from the starting point to demonstrate to him and other like-minded individuals that the idea of “easy money” from criminal behaviour is a false premise that will not be tolerated lightly by the courts; particularly in crimes where the pull of the black market is strong. Disposition [ 43 ] I would grant leave to appeal, allow the appeal and set aside the accused’s original sentence.

A proper sentence for this accused on the offence in question would be 18 months’ imprisonment and a fine of $4,000. The victim surcharge will be $1,200. Any amount previously paid by the accused towards the victim surcharge will be credited to the new amount ordered. The original ancillary orders relating to the taking of a DNA sample and a 10-year firearms prohibition will form part of the accused’s sentence as varied by my reasons. The accused will be credited for having already served 90 days of the period of imprisonment. The remaining portion of his period of imprisonment is permanently stayed.

The fine and victim surcharge is to be paid in full by June 30, 2019, at a rate of no less than $300 per month on or before the last day of each month commencing January 31, 2018, until paid in full. The accused is directed to contact the Court of Appeal’s registry forthwith to make arrangements to attend a court office near where he resides to have the necessary paperwork completed, explained and provided to him. JA I agree: JA I agree: JA