R v Parker, 2023 MBCA 51

Citation: R v Parker, 2023 MBCA 51 Date: 20230608 Docket: AR22-30-09799 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : ) M. S. Bright HIS MAJESTY THE KING ) for the Appellant ) Appellant ) A. R. Hodge ) for the Respondent - and - ) ) Appeal heard: DAVID ALLAN PARKER ) March 17, 2023 ) (Accused) Respondent ) Judgment delivered: ) June 8, 2023 On appeal from 2022 MBQB 66 STEEL JA [ 1 ] This is a Crown sentence appeal.

The accused pled guilty to possession of a loaded prohibited firearm (a sawed-off shotgun), possessing a firearm contrary to two prohibition orders and assault. With credit for pre-sentence custody, the sentencing judge imposed a 21-month, less one day, conditional sentence order, followed by three years of supervised probation. [ 2 ] The difficult issue in this appeal is the balance between the potentially conflicting principles of sentencing— deterrence, denunciation and rehabilitation.

Facts [ 3 ] The RCMP (the police) attempted to conduct a traffic stop of the accused’s vehicle in Gimli, Manitoba on January 1, 2020. He fled and drove his vehicle to a local bar and ran inside carrying a loaded gun in a bag. He left the bag with the gun in the bar under a pool table. He ran onto the ice on Lake Winnipeg where people were ice fishing and tried to steal a vehicle. When the owner of the vehicle confronted him, he assaulted the owner by punching him in the face and pushing him in the chest.

He then moved on to another vehicle and was trying to start it when the police arrived and arrested him. [ 4 ] The accused was intoxicated on street drugs at the time of his arrest. In the pre-sentence report, he said he had been on a “six-day drug binge” on the date in question. He was living in his car, owed money to criminals and was feeling paranoid for his safety. He said the firearm had been offered to him and he took it for protection purposes.

He was searched upon his arrest, at which time the police located several hydromorphone and morphine pills in a small container in the pocket of his jacket. [ 5 ] The accused was detained in custody until February 11, 2020 when he was granted judicial interim release. Shortly after, he was detained once again on March 24, 2020 and subsequently released on June 1, 2020. Upon his release, he entered a treatment program and has been sober and employed since then. [ 6 ] The accused is a mature individual who had a normal upbringing. Unfortunately, his adult life has been plagued by drug use.

His long-standing drug addiction was detailed in the pre-sentence report, along with efforts he had made since his arrest to

maintain sobriety. The pre-sentence report assessed him at a low risk to reoffend.

The Sentencing Hearing [7] At the sentencing hearing, factoring in totality and the rehabilitation efforts of the accused, the Crown sought a 42-month sentence apportioned as follows: three years’ custody for possession of a loaded prohibited firearm; six months’ custody, to beserved consecutively, for possessing a firearm contrary to two prohibition orders; and three months’ custody, to be served concurrently,for assault. [8] The accused sought a two-year conditional sentence, followed by a three-year probation order, as a result of hisrehabilitation efforts and his drug addiction issues at the time of his offending. [9] The sentencing judge imposed a conditional sentence order of two years, less one day, but reduced it by three monthsfor the accused’s pre-sentence custody, which she credited him for on a 1:1 basis.

That sentence was composed of 17 months forpossession of a loaded prohibited firearm; four months, less one day, to be served consecutively, for possessing a firearm contrary to twoprohibition orders; and three months, to be served concurrently, for assault. [10] The sentencing judge held that the accused’s moral culpability was reduced by his drug addiction and intoxication atthe time of the offence. Relying on Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, she found thatprinciples of general and specific deterrence had little value when dealing with a drug addict.

Given the accused’s significant period ofsobriety since his release from custody, the pre-sentence report and the reference letters, she found that public safety and individualdeterrence were not issues in this case.

She determined that the facts of this case justified a sentence much less than usual and that aconditional sentence could achieve the objectives of denunciation and general deterrence. [11] The Crown seeks leave to appeal and, if granted, appeals the accused’s sentence, arguing that the sentencing judgeoveremphasised the roles of addiction and rehabilitation in imposing sentence and that the sentence is demonstrably unfit, especially inview of the roles that denunciation and deterrence play in sentencing for firearms offences. Moreover, it says that public safety wasindeed an issue in this case.

The accused was intoxicated and moving about in a small town, armed with a loaded gun while he wasprohibited from possessing any firearm. It says the sentencing judge failed to consider the seriousness of the breach offence. [12] The accused relies on the principle of appellate deference for the decision of the sentencing judge. He also points outthat his life has stabilized since the incident and he has already demonstrated significant rehabilitative potential.

Incarceration at thispoint in his life would simply put that rehabilitation at risk. [13] The accused’s conditional sentence was not suspended pending the appeal (see section 683(5)(

f) of the Criminal Code(the Code)). Standard of Review [14] As stated in R v Johnson, 2020 MBCA 10 (at para 9): Appellate courts must show great deference when reviewing sentencing decisions. . . . [A]ppellate intervention is only justified in caseswhere a material error has an impact on the sentence or when the sentence is demonstrably unfit. A material error includes an error inprinciple, a failure to consider a relevant factor or an erroneous consideration of an aggravating or mitigating factor. It also includes anoveremphasis of the appropriate factors . . .. See also R v Friesen, 2020 SCC 9 at paras 25-26.

Decision [15] It is trite to repeat that the fundamental principle of sentencing is proportionality, which requires sentencing judges toimpose a sentence that reflects the gravity of the offence and the moral culpability of the offender while carefully weighing andbalancing the aggravating and mitigating circumstances as they relate to both the offender and the offence. See R v Lacasse, 2015 SCC64 at para 12; R v Siwicki, 2019 MBCA 104 at para 44; and R v Hills, 2023 SCC 2 at paras 57-58.

The often excruciatingly difficult taskfor the sentencing judge is to find the correct balance between the competing factors in the particular circumstances of the case. [16] When sentencing offenders who commit firearms offences, denunciation and deterrence are the primary sentencingprinciples. See R v Morrisey, 2000 SCC 39 at para 54; and R v Kennedy, 2016 MBCA 5 at para 60.

As stated in R v BWP; R v BVN,2006 SCC 27, “[d]eterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging theoffender and others from engaging in criminal conduct.” Even if specific deterrence is not necessary because of rehabilitation or realisticbecause the offender is addicted, general deterrence is still a consideration. “General deterrence is intended” to deter “potentialcriminals” from engaging “in criminal activity because of the example provided by the punishment imposed on the offender” (at para2).

The objective of denunciation is to “communicate society’s condemnation of that particular offender’s conduct” (R v M (CA), (SCC), [1996] 1 SCR 500 at para 81). [17] The firearms offences in this case were particularly serious. They occurred in a public area. The firearm was loadedand the accused was already subject to two prohibition orders. See R v McMillan (BW), 2016 MBCA 12 at paras 12-13.

Moreover, thesentence imposed was well outside the range of custodial sentences normally imposed for similar offences. [18] The sentencing judge correctly articulated that denunciation and deterrence are the primary sentencing objectives, andthat three years’ incarceration is the starting point for these offences. That said, departing from a sentencing range or starting point is notan error in principle. Sentencing judges are free to depart from these ranges in appropriate cases and that decision is part of thediscretionary aspect of sentencing. These cases need not be exceptional.

[19] In R v Parranto, 2021 SCC 46, the Supreme Court of Canada discussed ranges and starting points, indicating that,“[w]hen conducting an individualized analysis, sentencing judges are expected to account for other relevant sentencing objectives,including rehabilitation and restraint” (at para 45). The Court held further that (ibid): . . . Sentencing judges have discretion over which objectives to prioritize . . . and may choose to weigh rehabilitation and otherobjectives more heavily than “built-in” objectives like denunciation and deterrence.

Appellate courts should not lose sight of theseprinciples — nor the deferential standard of review — when reviewing sentences that depart from a starting point or range. See also R v Nasogaluak, 2010 SCC 6 at para 44; and R v Mero, 2021 BCCA 399 at para 92. [20] Drug addiction is an illness “characterized by a loss of control over the need to consume the substance to which theaddiction relates” (PHS Community Services at para 99).

When balanced against the other principles, it is important to consider whetherthere is a reasonable chance that the offender may succeed in an attempt to control their addiction in order to avoid imposing a sentencethat addresses the protection of the public at the expense of rehabilitation. In this case, while still being mindful of factors such asdenunciation and deterrence, the sentencing judge found that the accused’s addiction required an emphasis on rehabilitation and restraint. [21] The accused was not a first offender and had a criminal record.

He had made repeated promises at previous sentencinghearings to learn from his mistakes and deal with his drug addiction.

He had been given various opportunities in the form of morelenient and rehabilitative dispositions to follow through on those promises and had failed to do so. [22] On the other hand, it is significant to note that, although the accused had made repeated promises in the past to dealwith his drug addiction, by the time he appeared in front of the sentencing judge, he had made good on his promises. [23] After he was released on bail, he contacted the Addictions Foundation of Manitoba (AFM) and immediately beganrehabilitation. He completed all programming made available to him.

While the accused had a history of drug addiction, this was thefirst time he had enrolled in a formal rehabilitation program. Counsel for the accused confirmed that, by the time he was sentenced onJune 6, 2022, the accused had been sober for approximately two and a half years, was maintaining contact with his counsellor at AFM,was in a stable relationship, had retained counsel to assist in getting re-involved in the life of his child and had been gainfully employedfor a period of time. By the time of the appeal hearing, he had been sober for over three years.

As the sentencing judge indicted in herreasons, “[p]rior statements of an intention to rehabilitate have turned into a demonstration of rehabilitation” (at para 42). [24] This is similar to the case of R v Conlon, 2011 ABCA 379, where the Court agreed with the sentencing judge that acomplete turnaround in the accused’s life and his rehabilitative efforts may reduce the need to emphasize general and individualdeterrence.

The accused had spent almost three years on restrictive conditions of judicial release and, by the time of his sentencinghearing, he had overcome his addiction. [25] While the sentencing judge found that to be the case for this accused, I caution that it may not be the case for everyaccused who suffers from an addiction. The individual circumstances of the addict must still be weighed against the gravity of theoffence.

The sentencing judge’s conclusion that “questions of deterrence and rehabilitation must be viewed through the lens of drugaddiction” (at para 24) arises primarily from her reliance on the cases of R v Preston, 1990 CarswellBC 152 (CA); and R v McDonald,2015 ABCA 108. Those cases are both very different factually as they did not involve offences in which deterrence and denunciationwere the paramount sentencing principles.

As well, in Preston, the British Columbia Court of Appeal sat five in order to reconsider“[w]hether either general or specific deterrence must necessarily outweigh rehabilitation as a factor in the sentencing of a non-violentaddicted substance abuser” (at para 3(a)). The Court concluded that “the principle of deterrence should yield to any reasonable chance ofrehabilitation which may show itself to the court imposing sentence” (at para 37). [26] Nonetheless, there are also cases dealing with firearm-specific offences where a similar result has been found.

In R vBird, 2021 ABCA 243, the Alberta Court of Appeal allowed an appeal of a sentence for firearm-specific offences. In discussingdenunciation and deterrence in relation to addiction in coming to its decision, the Court commented: “While denunciation and deterrenceare important considerations in weapons offences, the personal circumstances of the appellant must also be considered to ensure aproportionate sentence” (at para 20). [27] See also Mero where the accused was convicted of possession of a loaded restricted firearm and possession for thepurpose of trafficking.

The Court held that the link between his addiction and his criminal activity reduced his moral blameworthinessand that, in light of this and his significant rehabilitation, a conditional sentence order was “the appropriate sentencing option” for aconviction under section 95(1) of the Code (at para 102). See also R v Sellars, 2018 BCCA 195. [28] A similar conclusion was reached by this Court in R v Krywonizka, 2022 MBCA 85, a Crown appeal from a conditionalsentence order of two years, less one day, imposed on the accused following his guilty plea to six counts of firearms-related offences.

The police seized a total of 77 guns which were mostly stored unsafely with ammunition readily accessible. Two loaded prohibitedhandguns were located in the nightstand beside the accused’s bed. Although the accused was not a drug addict, he had autism spectrumdisorder (ASD) which led to compulsive and fixated behaviour. As in this case, the evidence suggested that the accused was at a lowrisk to reoffend or for his behaviour to become violent.

The sentencing judge concluded that the ASD diagnosis tempered the accused’smoral blameworthiness and, as a result, while recognizing denunciation and deterrence as paramount in firearms offences, she wassatisfied that a conditional sentence was consistent with the purposes and principles of sentencing in that case. This Court agreed withthat conclusion and dismissed the appeal. [29] Conditional sentences can fulfil the objective of deterrence, especially in the context of addictions.

In R v Proulx, 2000SCC 5, the Court stated that a conditional sentence can provide deterrence if sufficiently punitive conditions are imposed. Lamer CJCwrites (at para 107): Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary,however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer [R vWismayer (1997), (ON CA), 115 CCC (3d) 18 (Ont CA)] . . . at p. 36. The empirical evidence suggests that the

deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach [Canadian Sentencing Commission (Ottawa: The Commission, 1987)] . . . at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. . . . Conclusion [ 30 ] Sentencing is the most difficult part of our job.

While decisions are made within the broad framework of statute and case law, when brought down to the individual, those principles must be balanced against the specific facts of each case. It is for that reason that appellate courts are instructed time and time again to defer to the sentencing judge who was in the best place to balance those sometimes conflicting principles. This appeal is just such a case. [ 31 ] Without a doubt, these were serious firearms offences committed by a mature individual with a criminal record. Yet this is not a case of an individual simply promising to do better.

He appears in front of this Court having demonstrated a period of three years of sobriety with every indication of continuing along that path and has been compliant while serving his conditional sentence order. He has taken significant rehabilitative steps and incarcerating the accused at this point could adversely impact those steps. [ 32 ] The accused convinced the sentencing judge that society was best served by allowing him to continue on his path of rehabilitation. There is no question that the sentence is low. The sentencing judge acknowledged that in her reasons and that is echoed in the accused’s factum.

That in itself does not render the sentence demonstrably unfit. Sentencing is more of an art than a science. Sentencing judges must weigh and balance a myriad of factors and impose a sentence that is fit and that reinforces the principle of proportionality.

The weighing of those factors is owed significant deference. [ 33 ] I can do no better than echo Monnin JA in R v Murphy (MP) , 2011 MBCA 84 (at para 20 ): Upholding the sentence on this appeal and choosing not to interfere with the discretion exercised by the sentencing judge, is not an endorsement of the specific sentence or moving the goal posts with respect to the range of sentences for offences involving street dealers. It is but another example of applying a deferential standard of review. [ 34 ] For the above reasons, while leave to appeal the sentence is granted, the sentence appeal is dismissed.

JA I agree: JA I agree: JA