R. v. Power, 2016 NSSC 198

SUPREME COURT OF Nova Scotia Citation: R. v. Power , 2016 NSSC 198 Date: 2016-07-26 Docket: CRH No. 443601 Registry: Halifax Between: Her Majesty the Queen v. Stephen James Power Library Heading Judge: The Honourable Justice James L. Chipman Heard: July 26, 2016 in Halifax, Nova Scotia Oral Decision: July 26, 2016 Subject: Sentencing on firearms charges.

Summary: Following a three-day trial in late January of this year, Mr. Power was found guilty of Indictment counts 2, 3, 8, 11 and 13 ( R. v. Power , 2016 NSSC 75 ). In accordance with the Kienapple Principle , counts 5 and 6 were stayed. In the result, Mr. Power is to be sentenced on two counts of possession of a firearm knowing its possession to be unauthorized (s. 92(1) C.C.), three counts of possession of a firearm or ammunition contrary to an order (s. 117.01(1) C.C.) and one count of breach of probation (s. 733.1(1)(

a) C.C.). Issues: What is the appropriate sentence? Result: [ 1 ] The Court was mindful of the unique systemic and background factors which have played a

part in bringing Mr. Power before the Court, as well as the types of sentencing procedures and sanctions which may be appropriate in the circumstances for Mr. Power because of his aboriginal heritage. [ 2 ] On balance, however, considering the totality of the convictions coupled with all of the sentencing considerations (inclusive of the Gladue component), the Court did not agree with the Defence submission that a conditional sentence is in order.

Having said this, the Court also rejected the Crown’s submission that a custodial sentence of one year is appropriate. [ 3 ] In all of the circumstances, the Court was of the view that an eight month sentence is just and appropriate, broken down as follows: [ 4 ] Count No. [ 5 ] C.C.

Section [ 6 ] Sentence [ 7 ] 2 [ 8 ] s. 92(1) [ 9 ] 4 months incarceration [ 10 ] 3 [ 11 ] s. 92(1) [ 12 ] 4 months incarceration, concurrent to count 2 [ 13 ] 8 [ 14 ] s. 117.01(1) [ 15 ] 4 months incarceration, consecutive to the 92(1) offences [ 16 ] 9 [ 17 ] s. 117.01(1) [ 18 ] 4 months incarceration, concurrent to count 8 [ 19 ] 11 [ 20 ] s. 117.01(1) [ 21 ] 4 months incarceration, concurrent to count 8 [ 22 ] 13 [ 23 ] s. 733.1(1)(a) [ 24 ] 1 month incarceration, concurrent to all other counts [ 25 ] The Court also ordered the requested ancillary orders; namely DNA (Secondary) and a s. 109 Prohibition (Life).

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Power, 2016 NSSC 198 Date: 2016-07-26 Docket: CRH No. 443601 Registry: Halifax Between: Her Majesty the Queen v. Stephen James Power Judge: The Honourable Justice James L. ChipmanHeard: July 26, 2016 in Halifax, Nova Scotia Counsel: William Mathers, for the Crown Peter Kidston, for Mr. Power Orally by the Court: Introduction [26] Following a three-day trial in late January of this year, I found Mr.

Power guilty of Indictment counts 2, 3, 8, 11 and 13 (R. v.Power, 2016 NSSC 75). In accordance with the Kienapple Principle, counts 5 and 6 were stayed. In the result, Mr. Power is to besentenced on two counts of possession of a firearm knowing its possession to be unauthorized (s. 92(1) C.C.), three counts of possessionof a firearm or ammunition contrary to an order (s. 117.01(1) C.C.) and one count of breach of probation (s. 733.1(1)(

a) C.C.). [27] In advance of today’s sentencing, I have had the benefit of the parties’ oral submissions and briefs, the Crown’s July 13 and 25letters, a June 29 pre-sentence report (with attached JEIN offender

summary) and a July 13 Gladue report. [28] Appended to their submissions, the Crown provided these authorities: R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 R. v. Ipeelee, 2012 SCC 13 R. v. Chan, 2011 NSSC 471 R. v. Eriksen, 2005 YKSC 26; 2005 YKCA 5 R. v. Haus, 2016 BCPC 11 R. v. Steel, 2007 SCC 36 R. v. Assiniboine, 2016 SKQB 149 [29] The Defence provided the Court with R. v. Crathorne, 2015 NSPC 1. [30] With respect to the Gladue report, the Crown argued that certain sections of the report do not meet the threshold requirementswith respect to admissibility and should be excised.

In support of their position, the Crown provided the following references: R. v. Florence, 2013 BCSC 194, paras. 45-51; 2015 BCCA 414, para. 20

R. v. Lawson , 2012 BCCA 508 , paras. 28 , 30 and 33 R. v. Denny , 2016 NSSC 76 , paras. 69-70 Background [ 31 ] The convictions arise from a December 3, 2014 search of the home where Mr. Power resided with his grandparents. After presenting a warrant, the RCMP seized guns, ammunition, marihuana and several other related items. The Defence characterizes the background of this matter, as follows: On December 3, 2014 the RCMP executed a search warrant on the premises at 17 Albert Howe Lane in Sheet Harbour. This is the residence of James and Florella Howe, the maternal grandparents of Stephen Power.

Stephen Power resides with his grandparents at this address. As a result of this search the RCMP seized, inter alia , an SKS rifle, a 303 rifle and various ammunition. These items relate to the counts on which Mr. Power was convicted. On May 1, 2014 in Dartmouth Provincial Court, Mr. Power was sentenced on charges of possession of a weapon for a dangerous purpose (s. 88(1) C.C.), mischief (s. 430(4) C.C.), failure to comply with an undertaking (s. 145(5.1) C.C.) and possession for the purpose of trafficking (s. 5(2) CDSA). He was given a suspended sentence and placed on probation for a 2 year period.

Additionally, a firearms prohibition for a period of 10 years was ordered pursuant to s. 109. Judge Buchan did however, grant an exemption under s. 113 to allow hunting for sustenance. No license was issued by the Chief Firearms Officer however. The rifles seized and found to be in Mr. Power’s possession were neither prohibited or restricted firearms. Mr. Power intended to use them for hunting. He was under the mistaken assumption that Judge Buchan’s granting of the

section 113 exemption was all that was required to allow him his aboriginal right to hunt for sustenance. Mr. Power testified that he did not renew his membership in various shooting clubs he had belonged to, as he understood he was not allowed to possess a firearm for sport shooting. [ 32 ] The Defence goes on to recommend a conditional sentence order for a total of eight months, broken down as follows: Count No. C.C.

Section Proposed Sentence 2 s. 92(1) 4 months 3 s. 92(1) 4 months concurrent 8 s. 117.01(1) 4 months consecutive to counts no. 2 and 3 9 s. 117.01(1) 4 months consecutive to counts no. 2, 3 and 8 11 s. 117.01(1) 4 months consecutive to counts no. 2, 3, 8 and 9 13 s. 733.1(1)(a) 1 month concurrent to all other counts [ 33 ] As for the Crown, it is their submission that a custodial sentence of one year is appropriate. The Crown further submits that the sentence be apportioned, as follows: Count No. C.C.

Section Proposed Sentence 2 s. 92(1) 6 months concurrent to count 3, consecutive the 117.01(1) offences 3 s. 92(1) 6 months concurrent to count 2, consecutive the 117.01(1) offences 8 s. 117.01(1) 6 months concurrent to counts 9&11, consecutive the 92(1) offences 9 s. 117.01(1) 6 months concurrent to counts 8 & 11, consecutive the 92(1) offences 11 s. 117.01(1) 6 months concurrent to counts 8 & 9, consecutive the 92(1) offences 13 s. 733.1(1)(a) 1 month concurrent [ 34 ] The Crown is also seeking the following ancillary orders: DNA (Secondary); and s. 109 Prohibition (Life).

Sentencing Objectives/ Gladue Component [ 35 ] The objectives of sentencing are set out pursuant to s.718 of the Criminal Code . These oft-repeated principles are deterrence, denunciation, separation of the offender from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims. [ 36 ] With respect to the Gladue report, s. 718.2 (

e) of the Criminal Code must be applied in this case. As of July 23, 2015, the subsection reads: All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims

or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [37] In Denny, Justice Rosinski provided helpful background with respect to how courts should use Gladue reports in sentencing anaboriginal offender: [65] In R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada set out the principles that shouldguide courts in relation to the application of the then extant s. 718.2(e). More recently, in R. v.

Ipeelee, 2012 SCC 13 (at paras. 56 –87), the Supreme Court revisited and reformulated those principles, particularly as applicable in the context of aboriginal offenders whowere subject to long-term offender supervision orders. [66] The majority opinion made the following observations: … s. 718.2(

e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal peoplein Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing… [It] directs sentencingjudges to pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different fromthose of non-aboriginal offenders… When sentencing an aboriginal offender, a judge must consider: (

a) the unique systemic orbackground factors which may have played a

part in bringing the particular aboriginal offender before the courts; and (

b) thetypes of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his orher particular aboriginal heritage or connection...

Judges may take judicial notice of the broad systemic and background factorsaffecting aboriginal people generally, but additional case specific information will have to come from counsel and from the presentencereport…. … to be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools andhow that history continues to translate into lower educational attainment, lower incomes, higher unemployment, high rates of substanceabuse and suicide, and of course higher levels of incarceration for aboriginal peoples.

These matters, on their own, and do not necessarilyjustify a different sentence for aboriginal offenders.

Rather, they provide the necessary context for understanding and evaluating the casespecific information presented by counsel.… In current practice, it appears the case specific information is often brought before thecourt by way of a Gladue Report, which is a form of presentence report tailored to the specific circumstances of aboriginal offenders.Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at the sentencinghearing for an aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(

e) of the Criminal Code.” –Paras. 59 – 60. … Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. … First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level ofmoral blameworthiness… The second set of circumstances – the types of sanctions which may be appropriate – bears not on the degreeof culpability of the offender, but on the effectiveness of the sentence itself.… s. 718.2(

e) does not create a race-based discount onsentencing. – Paras. 72-75. [emphasis added] [67] Furthermore, the court reiterated that it would be extremely difficult for an Aboriginal offender to ever establish a direct causallink between his circumstances and his offending.

Section 718.2(

e) does not logically require such a connection: Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessarycontext to enable a judge to determine an appropriate sentence. That is not to say that those factors need not be tied in some way to theparticular offender and offence.

Unless the unique circumstances of the particular offender bear on his or her culpability for theoffence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. (para.83) [68] Gladue reports are, “a form of presentence report tailored to the specific circumstances of Aboriginal offenders” – Ipeelee, para.60.

For this reason, it may be helpful for such report writers to follow more closely the model adopted for presentence reports, withnecessary modifications. [38] While agreeing that the Gladue factors are relevant, the Crown has referred the Court to Assiniboine for the proposition thatGladue reports are not the only consideration in sentencing. For example, at paras. 74 and 78 Justice Danyliuk states: [74] I also hasten to add that the “Gladue analysis” is not the be-all and end-all. It is one of a group of factors that can affect the level ofmoral blameworthiness of an offender.

Clearly, it is incumbent on sentencing judges to consider all of those factors in a holistic fashion.While the Gladue analysis is mandated by s. 718.2(e), it might be considered to be one of numerous components falling under s. 718.1:“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Many things might gointo the s. 718.1 consideration. These will include, but not be limited to, what is mandated by s. 718.2(e). See Chanalquay, para 40. … [78] However, while the importance of Gladue and Ipeelee cannot be gainsaid, neither should they be overemphasized.

They do notcreate an entire new system of sentencing. The Criminal Code, and the cases interpreting same, simply make it incumbent uponsentencing judges to give genuine and meaningful consideration to s. 718.2(e), just as judges must give genuine and meaningfulconsideration to the other sentencing principles set out in the Criminal Code and in case law. The type of crime and its effects on thevictims remain to be properly considered as well. Chief Justice Richards said this in Chanalquay at paras 42 and 43:

[42] Thus, while s. 718.2 (e), as interpreted by Gladue and Ipeelee , mandates a particular kind of analysis when sentencing an Aboriginal offender, it does not create a wholly new sentencing paradigm. Sentencing judges must attempt to give meaningful effect to the remedial purpose of s. 718.2 (

e) and must be highly alert to the ongoing problem represented by the troubling incarceration rates of Aboriginal people. But, the ultimate sentencing objective is clear: considering all of the relevant sentencing principles, including s. 718.2 (e), what is a fit sentence for the offender given his or her circumstances, the nature of the crime, the situation of the victim, and the interests of the community? ( Gladue at para 75 .) [43] I note that this means a sentencing judge must attempt to understand not just the situation and background of the offender and the particulars of the crime in issue.

He or she must also, to the extent reasonably possible, attempt to understand the relevant dynamics of the community and the circumstances of the victim. After all, the victims of crimes committed by Aboriginal offenders are all too frequently other Aboriginals, often ones with precisely the same Gladue backgrounds as the offenders. They must not be overlooked.

In order to understand all of this, it may sometimes be necessary for a trial judge to demand more than is typically provided in this province by way of a pre-sentence report. [ 39 ] In their argument that certain sections of the Gladue report here do not meet the threshold requirements with respect to admissibility and should be excised, the Crown has referred to Denny at paras. 69 and 70 , which read: [69] I agree with the comments of the court in R. v.

Lawson , 2012 BCCA 508 , at paras. 26-28 : … Their purpose is to provide the court with individualized information about how intergenerational and systemic effects of colonialism, displacement, residential schools, poverty, unemployment and substance abuse have affected the aboriginal offender. They should also include information about realistic restorative or rehabilitative programs suitable to the particular aboriginal offender. … Finally, as a form of presentence report, Gladue reports should be subject to the same general requirements of balance and objectivity as conventional presentence reports.

Thus, the writer should attempt to remain detached rather than advancing personal opinions. [70] Courts have also been consistent in confirming that it is the contents of a Gladue report that are critical, not its format, and that such content can come before the court outside of any formal Gladue report, or even if none is formally submitted – by way of counsel’s representations, agreed statement of facts, or in presentence reports, etc. [ 40 ] The Defence does not take issue with the Crown’s objection to certain discreet sections of the Gladue report. Accordingly, I have disregarded those aspects of Ms.

Varone’s report; namely pp. 17 and 18 dealing with medical issues and p. 22 dealing with Mr. Power’s view regarding his prior convictions. [ 41 ]

Section 718.2 (

a) of the Criminal Code requires me to consider any aggravating factors or mitigating circumstances in my determination of the nature and extent of sentence. For aggravating factors, the JEIN offender

summary confirms Mr. Power has a related criminal record for weapons possession. As for mitigating factors, Mr. Power (DOB March 30, 1992) was just 22 years of age at the time of the offences. Guiding Law/Analysis [ 42 ] With respect to the s. 117.01(1) offences, both parties have referred to the relatively recent Supreme Court of Nova Scotia decision in Chan . At para. 40, Justice Wright stated as follows: The remaining gun crime to be dealt with is Mr. Chan’s conviction for the s.117.01(1) offence.

The case authorities generally suggest that the appropriate sentence for breaching such a weapons prohibition order is in the range of one year imprisonment and that it should be made consecutive to reflect the seriousness of flouting court orders aimed at controlling firearms (see , for example, R. v. Sadat , 2011 ONSC 3303 and R. v. Lambert , 2011 ONSC 3906 ). Accordingly, I impose a sentence of one year imprisonment for the s.117.01(1) offence, to be served consecutively to the s.244 sentence. [ 43 ] While the general range is one year imprisonment, sentences under this

section have been shorter. In this regard, the Defence has referred the Court to the Crathorne decision of Judge Chisholm. Mr. Crathorne was sentenced to serve ten months imprisonment for the possession of a prohibited weapon. [ 44 ] The Crown takes the position that a conditional sentence order is not appropriate, as Mr. Power’s convictions are for several weapons-related offences prosecuted by way of indictment, for which the maximum term of imprisonment is ten years.

They go on to acknowledge it is difficult to find cases involving aboriginal persons convicted of multiple s. 92(1) and s. 117.01(1) C.C. offences in which the weapons themselves were not either unsafely used or used in furtherance of criminal behaviour. [ 45 ] The Defence disagrees with the Crown position that a conditional sentence order is not appropriate in this case. In this regard, they emphasize s. 742.1 C.C., which sets out the circumstances in which the Court may impose a conditional sentence of imprisonment. The Defence argues that in Mr.

Power’s case, the s. 92(1) and s. 117.01(1) C.C. charges do not carry a minimum term of imprisonment. In this regard, they point out that the two charges are indictable offences that carry a maximum term of imprisonment; however, none of the other factors listed are present. For example, they point out that no bodily harm was involved, and that the offences did not involve the import, export, trafficking or production of drugs and did not involve the use of a weapon. Mr. Kidston argues at pp. 8 and 9 of his brief: It is the submission of the Defence that the charges on which Mr.

Power was found guilty do not involve the use of a weapon. Rather they deal with the possession of a weapon knowing it was not authorized and contrary to a prior order of prohibition. It is submitted that the intent of s. 117.01(1)(e)(iii) is that the offender used a weapon during the course of the offense for which he is to be sentenced on.

In R. v. Blagdon , 2013 NSPC 93 , Judge Derrick dealt with the sentencing of an individual convicted of three offences involving a firearm (a .32 calibre revolver), including a conviction pursuant to s. 92(1). In that case a conditional sentence of 18 months was imposed. While the Crown was opposed to the imposition of a CSO, they did not suggest that it was not an available sentence. It is respectfully submitted that a conditional sentence order is an available option in Mr. Power’s case. Disposition [ 46 ] Ms. Varone’s report confirms these Gladue factors present in Mr.

Power’s situation: • He is an Aboriginal man • Substance abuse • Overt/covert racism • Family breakdown • Domestic violence • Lack of employment opportunities • Poor socio-economic conditions [ 47 ] As for the pre-sentence report, Ms. Wesley touches on Gladue factors and further aspects of Mr. Power’s situation, including: • Family background • Education/Training • Employment • Family breakdown • Financial Situation • Health and Lifestyle • Offender Profile • Corrections History [ 48 ] When I review these reports, it is apparent that Mr. Power has had a difficult upbringing.

For example, at age 16, he lost his father. He has suffered racism in school and in the community, on account of his aboriginal status. [ 49 ] Given the above, I am mindful of the unique systemic and background factors which have played a

part in bringing Mr. Power before the Court. Further, I am mindful of the types of sentencing procedures and sanctions which may be appropriate in the circumstances for Mr. Power because of his aboriginal heritage. On balance, however, when I consider the totality of the convictions coupled with all of the sentencing considerations (inclusive of the Gladue component), I cannot agree with the Defence submission that a conditional sentence is in order here. Having said this, I must also reject the Crown’s submission that a custodial sentence of one year is appropriate.

Rather, in all of the circumstances, I am of the view that an eight month sentence is just and appropriate, broken down as follows: Count No. C.C.

Section Sentence 2 s. 92(1) 4 months incarceration 3 s. 92(1) 4 months incarceration, concurrent to count 2 8 s. 117.01(1) 4 months incarceration, consecutive to the 92(1) offences 9 s. 117.01(1) 4 months incarceration, concurrent to count 8 11 s. 117.01(1) 4 months incarceration, concurrent to count 8 13 s. 733.1(1)(a) 1 month incarceration, concurrent to all other counts [ 50 ] I hereby also order the requested ancillary orders; namely DNA (Secondary) and a s. 109 Prohibition (Life).

Chipman, J.