Her Majesty The Queen v. Kyle Cater DECISION ON THE CROWN’S APPLICATION FOR SUMMARY DISMISSAL OF THE DEFENCE CHARTER MOTION JUDGE: The Honourable Anne S. Derrick, 2012 NSPC 37

IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Cater 2012 NSPC 37 Date: May 3, 2012 Docket: 1997530, 1997536, 1997539, 1997542, 1997545, 1997548; 2035773 to 2035780 Registry: Halifax BETWEEN: Her Majesty The Queen v. Kyle Cater DECISION ON THE CROWN’S APPLICATION FOR

SUMMARY DISMISSAL OF THE DEFENCE CHARTER MOTION JUDGE: The Honourable Anne S. Derrick HEARD: April 18, 2012 DECISION: May 3, 2012 CHARGES: Sections 88(1) x1; 95(1) x 2; 92(1) x 2; 92(2) x 1; 100(2) x 5; 99(2) x 4; of the Criminal Code COUNSEL: Richard Hartlen, for the Crown DEFENCE: Elizabeth Cooper, for Kyle Cater By the Court: Introduction [1] This decision concerns the issue of whether I should summarily dismiss a Defence application for Charter relief. The Charterrelief being sought is in relation to the mandatory minimum sentences applicable to the offences for which Kyle Cater is beingsentenced. Ms.

Cooper for Mr. Cater submits that the mandatory minimums under sections 95 (firearms possession), 99 and 100(firearms trafficking) of the Criminal Code are contrary to

section 12 of the Charter, the prohibition against being subject to any crueland unusual punishment. Mr. Cater has been convicted of offences under each of these provisions of the Criminal Code. [2] Ms. Cooper provided a seven-page brief that includes her submissions on the Charter motion. It was filed on April 13. She has nottendered any evidence. [3] The Crown has provided me with nine cases, one of which is the Ontario Superior Court of Justice decision in R. v. Nur, 2011ONSC 4874 , [2011] O.J. No. 3878 decided on August 30, 2011.

Nur discusses the constitutionality of the mandatoryminimum sentence that attaches to a conviction under section 95(1) where the Crown has proceeded by indictment. Mr. Hartlen hasadvised that Nur was forwarded not as the Crown’s response to Ms.

Cooper’s Charter motion, which he had not anticipated when heassembled his sentencing cases, but because it contains a review of the law and sentencing range in relation to section 95(1) inparagraphs 41 – 58 (the 1998 sentencing regime) and paragraphs 145 – 149 (the post-2008 sentencing provisions). [4] In Nur the mandatory minimum of three years’ imprisonment for a conviction of possessing a prohibited firearm was upheld asconstitutional. Some months later, on February 13, 2012, another decision of the Ontario Superior Court, R. v. Smickle, 2012 ONSC 602, [2012] O.J.

No. 612, declared the mandatory minimum sentence of three years’ imprisonment for possession of a restrictedfirearm to be unconstitutional. In seeking Charter relief for Mr. Cater, Ms. Cooper is relying heavily on the reasoning and result inSmickle. She has submitted that the mandatory minimums applicable to the offences for which Mr. Cater stands convicted prevent theimposition of a fit and proper sentence. She submits that on the firearms possession charges Mr. Cater should receive an absolutedischarge and on the firearms trafficking charges he should be sentenced to time served.

The Charter Motion [5] On April 18 I was to have dealt with Mr. Cater’s sentencing but in light of Ms. Cooper’s Charter application, I deferred thesentencing and heard the Crown’s motion for a

summary dismissal of the Defence application. Mr. Hartlen and Ms. Cooper madesubmissions. [6] I can fairly summarize Ms. Cooper’s Charter motion as follows: it is her submission that Kyle Cater’s culpability on the firearms

possession charges (by this I mean the charges relating to the firearms seized from his father’s residence at 80 Cavendish Road) is muchless than that of Mr. Smickle and the offenders in the cases referred to in Smickle at paragraphs 66 – 74: Los, (paragraphs 67 and 68),Snobelen (paragraphs 69 and 70), and Canepa (paragraphs 71 – 74). [7] In her brief, Ms. Cooper says the following about Mr. Cater: “Mr. Cater Junior was not caught in possession of any firearm, letalone a loaded one, nor found in public with a loaded firearm, as in the cases noted.” Ms. Cooper compares Mr.

Cater’s culpability to thethree offenders discussed in Smickle. Mr. Los kept a found shotgun for self-protection in a dangerous neighbourhood, firing it off intothe air on one occasion to disperse a fight that he thought was going to lead to someone being killed. Mr. Snobelen, a provincial CabinetMinister, neglected to turn in a semi-automatic handgun which he had originally acquired lawfully in the United States when hepurchased a ranch and its contents. The contents that were later shipped to him in Canada included the handgun which his wife, during atime of marital discord, disclosed to police. Mr.

Canepa directed police during a drug search to a loaded restricted firearm that headmitted owning. [8] Mr. Los was convicted following a trial. The most serious offence he was convicted for carried a one year mandatory minimumsentence. Mr. Los received an 18 month sentence with the court emphasizing his impressive efforts to turn his life around andcharacterizing his crime as one of “bad judgment and misguided intention.” (paragraphs 27 and 28) The Crown proceeded summarilyagainst Mr. Snobelen who pleaded guilty and was given an absolute discharge. Mr.

Canepa pleaded guilty to simple possession of afirearm without legal authorization and mitigating circumstances led to him receiving a conditional sentence of one year. [9] I have referred briefly to the facts in Los, Snobelen, and Canepa because it is Ms. Cooper’s argument that Mr. Cater should beviewed in an even more favourable light than these offenders. Ms. Cooper is effectively saying that Mr. Cater should be eligible for thesame or lesser penalties as Mr. Los, Mr. Snobelen, and Mr. Canepa received. It is Ms.

Cooper’s submission that the fact that mandatoryminimums disentitle her client to the same or lesser penalties is a violation of his right not to be subject to cruel and unusual punishment. [10] Ms. Cooper makes this same argument in the context of comparing Mr. Cater to Mr. Smickle. Mr. Smickle was found by police ina friend’s apartment posing with a loaded handgun. He did not own the gun and Molloy, J. held that: “…beyond the actual possession,there was no criminal intent in respect of the gun.” She accepted that Mr.

Smickle’s possession of the gun was nothing more than“adolescent preening.” She found that: “Although possession, even fleeting possession, of a loaded handgun is a dangerous activity, thecircumstances of this case put it at the lowest end of the scale of conduct constituting the offence.” (Smickle, paragraph 60) [11] Ms. Cooper has submitted that the facts in Los, Snobelen, Canepa, and Smickle are all more serious than the facts in Mr. Cater’scase. She goes so far as to say that the Snobelen facts are more serious because Mr. Snobelen was in actual possession of a loadedhandgun whereas Mr.

Cater “was not caught in physical possession.” [12] It is Ms. Cooper’s submission that it would be grossly disproportionate to sentence Mr. Cater more severely than Mr. Snobelen, asubmission underpinning her position that Mr. Cater should receive an absolute discharge for the convictions relating to his constructivepossession of the 80 Cavendish firearms. The unavailability of this disposition, due to the operation of the mandatory minimum sentenceof three years, is the basis for Ms. Cooper’s assertion that the mandatory minimum attached to

section 95 offences is grosslydisproportionate and a violation of Mr. Cater’s

section 12 Charter rights. [13] On the firearms trafficking charges, Ms. Cooper invokes the Grant decision (R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No.32). Mr. Grant was acquitted of trafficking a firearm in circumstances where he was found in possession of a loaded handgun that headmitted he was going to drop off somewhere up the road. (R. v. Grant, (ON CA), [2006] O.J.

No. 2179, paragraph69 (C.A.)) The Supreme Court of Canada found that the definitional terms included under “transfer” in the context of transfers thatamount to weapons trafficking had as their “common element…the notion of a transaction.” It was held that “Parliament did not intends.100(1) to address the simple movement of a firearm from one place to another.” (paragraph 144) [14] In my March 14 decision I found that Grant, which Ms.

Cooper referenced in her submissions following trial, had no relevance “tothe charges and evidence against Kyle Cater.” (Cater, paragraph 191) Rather than grasping the significance of this finding, Ms. Cooperhas trotted Grant out again, even suggesting in her brief that Mr. Cater “did not even come close to doing what Mr. Grant did, as there isno evidence that he was ever in physical possession of a firearm, let alone being caught with a loaded firearm in his possession.” [15] Ms.

Cooper’s Charter application in relation to mandatory minimum sentences for the firearms trafficking offences advances thisproposition: it would constitute cruel and unusual punishment to sentence Mr. Cater to prison when Mr. Grant was acquitted. Ms. Cooperstates in her brief: “How do you sentence someone for trafficking who has done far less than what the Supreme Court of Canadadetermined was not trafficking? Mr. Cater only talked on the phone. I have found no case where the offence was made out on this basis.” Mr. Cater’s Moral Culpability [16] Ms.

Cooper’s submissions on the Charter motion reveal how little my findings in this case have penetrated her perceptions of Mr.Cater and her understanding of the facts and evidence. She not only seems unable to grasp the reasoning that underpins her client’sconvictions, she has shown herself to be incapable of understanding that Mr. Cater does not compare favourably to any of the offendersshe has identified.

In Smickle it was determined that a three year mandatory minimum sentence would be grossly disproportionate forthat offender and his “single act of bad judgment and foolishness.” (Smickle, paragraph 81) Other than being a youthful first offender,Mr. Cater does not bear any resemblance to Mr. Smickle nor do his convictions compare to Mr. Smickle’s offence. Although it may beexperienced as tedious, in light of Ms. Cooper’s submissions I find it necessary to reference some of the conclusions I reached on theevidence, following Mr. Cater’s trial.

Trial Findings - Replay [17] On March 14, 2012 I convicted Kyle Cater of a number of firearms-related charges. In my decision (R. v. Cater, [2012] N.S.J. No.139) I determined that the Crown had established beyond a reasonable doubt that Kyle Cater was in possession, both constructively andjointly, of the firearms, magazines and ammunition located at 80 Cavendish Road. (paragraphs 178 and 179) I found that Mr. Caterexercised a measure of control over the firearms and ammunition magazines (paragraphs 171 – 177) and concluded that “Kyle knew the

firearms were at 80 Cavendish, he exercised some control over them, and he consented to Paul and Torina housing them…” (paragraph182) I found it to be immaterial that Kyle did not live at 80 Cavendish Road. (paragraph 176) As Ms. Cooper has been repeatedly told inthe course of these drawn-out proceedings, including in the context of this motion, actual residence is not required for establishingpossession.

Furthermore, constructive and/or joint possession is no less culpable than actual physical possession. [18] The evidence established that Kyle Cater was also engaged in the illegal gun trade for commercial purposes. I will refer back totwo paragraphs from my trial decision: 186 I have already discussed the intercepts that indicate Kyle Cater was in the business of acquiring and distributing guns. He was a"go-to guy" for associates looking for guns.

He operated in the context of a network, reassuring S.G. that he had people in Edmontonwho could supply an ammunition magazine and conferring with a number of associates locally about guns. The evidence establishes thathe was risk aversive: he did not carry the guns on him, "that would be crazy" he told L.S., he was keenly aware of the police presence inhis neighbourhood -- "the heat", and he stashed his guns with associates, such as Aaron Marriott. Money is discussed in the interceptedcalls and he mentions having a partner.

When guns are on offer, he's keen: he responds to I.E.'s enthusiasm about the "beautiful, clean,fresh 7-45" he is about to view by indicating, "It sounds good to me." He is "very interested" in the Smith and Wesson R.S. tells himabout. 204 The photographs do not decide the issue for me, the intercepts do.

The intercepted communications provide me with all theevidence I need to be satisfied beyond a reasonable doubt that the guns being discussed in the intercepts, including the .410 gaugeshotgun, the Derringer pistol, the .308 calibre rifle, the .45 calibre handgun, and the Smith and Wesson, were "firearms" under theCriminal Code definition. Kyle Cater and his associates all talked about the guns in a manner that makes it clear these were operable,functioning firearms.

The use of coded language, concerns about police detection, stashing, references to large amounts of money, andenthusiasm for something that is "fresh", "clean", and "beautiful", lead me to the irresistible conclusion that it was firearms that werebeing discussed. It is a ridiculous proposition that D.S, "C.", D.M., or L.S. were looking to Kyle Cater for inoperable, broken or facsimileweapons. They wanted something that would go "bop-bop" or not be "loud" or clothe them with protection when they were "naked."They knew, as did his other associates, that he dealt in real, working guns.

I have no hesitation in finding the Crown has proven beyond areasonable doubt that the guns referred to in the intercepted conversations were "firearms" as defined in the Criminal Code. Establishing a Charter Violation [19] Kyle Cater bears the burden of establishing a Charter breach. If “the facts as alleged by the defence in its

summary [of its Charterclaim] provide no basis for a finding of a Charter infringement…then the trial judge should dismiss the motion without hearingevidence.” (R. v. Kutynec, (ON CA), [1992] O.J. No. 347, paragraph 32 (C.A.)) As Ms. Cooper’s submissions are“entirely at odds with the analysis provided in the controlling precedents from…the Supreme Court of Canada”, a

summary dismissal ofthe Charter motion is justified. ((R. v. R.K., (ON CA), [2005] O.J. 2434 (C.A.), paragraph 58)) [20] Ms. Cooper’s written and oral submissions in support of her client’s application for Charter relief from the mandatory minimumsentences applicable in this case do not disclose any basis for finding a Charter infringement. Mr. Cater will be sentenced on the basis ofhaving been found to be (1) in possession of prohibited firearms, and (2) engaged in multiple instances of commercial-level firearmstrafficking.

The facts in this case are very unfavourable facts determined by me following a lengthy trial process. There is no merit in theassertion advanced by Ms. Cooper that the facts and circumstances in this case lend themselves to a comparison with offenders whosemoral culpability is markedly less than Mr. Cater’s. I cannot fathom how she sees a resemblance between Mr. Cater and his offences andthe facts in Snobelen. I am flummoxed by her apparent belief that Mr. Cater’s only crime was talking on the phone about firearms. Mr.Cater’s telephone conversations provided the evidence of the crimes he was committing. The

Part VI interceptions established that hewas possessing and transferring illegal firearms. The specifics of these criminal acts are described in comprehensive detail in my trialdecision. [21] Crimes of the nature of Mr. Cater’s attract substantial custodial sentences. In Nur it was observed that by 2005 the “firmlyentrenched” approach to “a first offence of possession of a loaded handgun simpliciter, where there were no additional convictions suchas for drug trafficking, tended to be between two year less a day and three years imprisonment.” (paragraph 42) [22] Gross disproportionality is what constitutes cruel and unusual punishment under

section 12 of the Charter. A three year prisonsentence was found to be a grossly disproportionate punishment for Mr. Smickle. Mr. Cater is no Mr. Smickle. Invoking Other Charter Rights [23] This is as good a time as any to deal with two other submissions made by Ms. Cooper that seek to moderate Mr. Cater’s sentenceby invoking Charter rights. [24] In making an argument that Mr. Cater should receive triple credit for his time on remand – a 3:1 ratio, Ms. Cooper cites the OntarioCourt of Appeal decision of R. v. Rashid, 2010 ONCA 591 , [2010] O.J. No. 3789 where a 4:1 remand credit was upheld.

TheOntario Court of Appeal concluded that: “…the denunciation of the Durham Police Services detention practice with the enhanced creditfor pre-trial custody properly addresses the seriousness of the [Charter] breach.” (paragraph 8) [25] There has been no finding of a Charter breach in Mr. Cater’s case with respect to his pre-sentence custody and I cannot see howRashid applies. I do note that in sentencing Mr. Cater, applying R. v.

Wust, 2000 SCC 18 , [2000] 1 S.C.R. 455, I will becrediting him for his time on remand but not on the basis of an extraordinary ratio of 3:1 especially in the absence of any evidence thatwould justify doing so. [26] Ms. Cooper further invokes the length of time that Mr. Cater’s case took coming to trial as a factor that should be “significant[ly]

mitigating…” I expressly found that the delays in Mr. Cater’s case did not constitute a Charter breach. (R. v. Cater, 2011 NSPC 80, [2011] N.S.J. No. 610) I do not see how the discussion of the issue of Charter breaches and their relevance to sentencing in R.v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206, at paragraphs 47 – 55, referred to in Ms. Cooper’s brief, has any applicationhere. I specifically found no evidence in this case of state misconduct or impropriety even short of Charter infringement. (see, forexample: R. v. Cater, [2011] N.S.J. No. 627, paragraph 20) [27] However, Mr.

Cater’s 28 months on strict house arrest is a factor for me to consider when I examine, in the context of fixing hissentence, the mitigating factors to be applied in that calculus. Conclusion [28] Ms. Cooper’s Charter application is underpinned by submissions that have no connection to the jurisprudence governing section12. There is nothing before me to justify hearing a Charter challenge to the mandatory minimums in this case. The application issummarily dismissed.