R v Krywonizka, 2022 MBCA 85

Citation: R v Krywonizka, 2022 MBCA 85 Date: 20221014 Docket: AR21-30-09694 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) J. M. Mann and ) B. M. P. Moen his majesty the king ) for the Appellant ) Appellant ) J. R. Wolson, K.C. and ) D. A.

Wolson - and - ) for the Respondent ) andrew michael krywonizka ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) September 28, 2022 ) ) Written reasons: ) October 14, 2022 On appeal from 2021 MBPC 49 monnin JA (for the Court) : [ 1 ] The Crown seeks leave to appeal and, if granted, appeals from a conditional sentence order imposed on the accused of two years, less one day, following his guilty plea to six counts of firearms-related offences. [ 2 ] After hearing the appeal, we granted leave to appeal the sentence but dismissed the appeal with brief reasons to follow.

These are those reasons. [ 3 ] The charges arise from the execution of a search warrant at the accused’s residence which was granted on the basis of the accused having imported a prohibited suppressor. The search revealed what the Crown described as “an arsenal of non-restricted, restricted and prohibited firearms and devices.” The police seized 77 guns, most of which were unsafely stored and many with ammunition readily accessible. Two loaded prohibited handguns were found in the nightstand by the accused’s bed. [ 4 ] The accused pled guilty to possession of three loaded prohibited firearms contrary to

section 95 of the Criminal Code (the Code ), possession of four restricted firearms with readily accessible ammunition contrary to

section 95 of the Code , possession of approximately 64 prohibited devices contrary to

section 92 of the Code , unsafe storage of non-restricted firearms contrary to section 86(2) of the Code , importing a prohibited device (sound suppressor) contrary to section 104(1)(

a) of the Code and possession of 16 prohibited firearms with readily accessible ammunition contrary to

section 95 of the Code . [ 5 ] At the time of the sentencing, the accused was 43 years of age, was single with no children and had no criminal record. He had been gainfully employed for a number of years at various positions. He was familiar with the licencing requirements regarding firearms and had authorization to possess some of the firearms in his house. [ 6 ] The accused filed medical and counselling reports from several experts which confirmed that, after his arrest as a result of these offences, he was diagnosed for the first time with autism spectrum disorder (ASD).

According to the medical evidence, his condition led to compulsive and fixated behaviour, which included learning about certain interests and collecting items related to those interests. There were a number of diverse collections, including model trains, street signs, safety equipment and various other items. Firearms were one of those collections. The medical evidence also suggested that the accused was at a low risk to reoffend or for his behaviour to become violent. Multiple positive reference letters were filed on his behalf. He has lived an otherwise unblemished

lifestyle and has no criminal associations. The motivation for his criminality is entirely related to his ASD. [ 7 ] The sentencing judge accepted that there was a nexus between the diagnosis of ASD and the accused’s offending behaviour. She stated that “the diagnosis help[ed] to frame what was an almost compulsive desire to collect firearms-related items” (at para 34).

She then concluded from the extensive medical information provided that the accused’s moral blameworthiness was reduced given the role his ASD had played in his collecting and improper storage of firearms. [ 8 ] Using the spectrum of offending behaviour described by the Supreme Court of Canada in R v Nur , 2015 SCC 15 , the sentencing judge concluded that the accused “was not an ‘outlaw’ . . . ‘who carrie[d] a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade’”; neither was he “a ‘licensed and responsible gun owner who store[d] his unloaded firearm safely with ammunition nearby, but [made] a mistake as to where it can be stored’” (at para 38).

Rather, she found him to fall into the mid-range of the spectrum of offenders. In the absence of mitigating factors, she was of the view that a sentence of three years or longer could easily be justified. [ 9 ] However, the sentencing judge did find mitigating factors—particularly, the ASD diagnosis which she concluded was significant and tempered the accused’s moral blameworthiness. As a result, while recognizing denunciation and deterrence as paramount in offences of this nature, she concluded that due consideration should be given to the sentencing principles of rehabilitation and restraint.

She was satisfied that a sentence of less than two years was consistent with the purposes and principles of sentencing set out in the Code and imposed a conditional sentence of two years, less one day, concurrent on each count. [ 10 ] The accused’s conditional sentence was not suspended pending the appeal (see section 683(5) (

f) of the Code ).

He has completed almost one half of the sentence without incident, including finishing 200 hours of community service work and an eight- month period of an absolute curfew. [ 11 ] The Crown’s appeal raises three issues: 1. that the sentencing judge erred in her approach to sentencing for multiple offences as she decided to impose a conditional sentence order before indicating that the sentences were to run concurrently, thereby failing to ensure that there were no free rides; 2. that the sentencing judge failed to consider the mild nature of the accused’s ASD and improperly assessed the medical evidence; and 3. that the sentence was demonstrably unfit given the high number of weapons, ammunition and prohibited devices found. [ 12 ] The first issue reflects the jurisprudence from this Court as to the proper approach to sentencing for multiple offences, which is to first determine whether the sentences should be concurrent or consecutive.

If concurrent, the sentencing judge determines a fit sentence for the most serious offence and then imposes lesser sentences for the remaining offences, ensuring that the length of sentence does not give the offender a “free ride” for the lesser concurrent offences ( R v Wozny , 2010 MBCA 115 at paras 44 , 65; see also R v RJ , 2017 MBCA 13 at para 13 ). [ 13 ] Counsel for the accused acknowledged in oral argument at the sentencing hearing that both he and Crown counsel argued for a global sentence, but did not address the allocation of that sentence to the individual offences or whether those sentences should be concurrent or consecutive.

The Crown argued for a global sentence of six years’ incarceration while the accused argued for a conditional sentence (which remained their positions on appeal). The critical issue before the sentencing judge was whether a conditional sentence was available on the most serious firearms offence. [ 14 ] While the sentencing judge did not follow the approach to sentencing for multiple offences that this Court has discussed in Wozny and RJ , we do not consider the sentencing judge’s lack of doing so as being a material error in this case (see R v Lacasse , 2015 SCC 64 at para 44 ).

We see no error in her concluding that the ASD diagnosis was a significant mitigating factor which played a major role in explaining the accused’s conduct and reduced his moral culpability.

The cogent and unchallenged evidence of ASD, together with the guilty pleas and the accused’s lack of a record, distinguishes this case from R v Kennedy , 2016 MBCA 5 . [ 15 ] On the second issue, we are of the view that the sentencing judge’s conclusion that the accused fell in the middle of the spectrum is consistent with the evidence before her that the accused, despite the large number of weapons in his possession, did not pose a public danger and should be sentenced accordingly. [ 16 ] On the third issue, we are of the view that, in these circumstances, a sentence of two years, less one day, while low, is not unfit and a conditional sentence order is how the sentencing judge balanced the relevant sentencing objectives and principles in light of the unique facts of this case (see R v Proulx , 2000 SCC 5 at paras 123-26 ). [ 17 ] For these reasons, while we granted the Crown leave to appeal the sentence, we dismissed the appeal.

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