R. v. Normand, 2023 ONCJ 373

ONTARIO COURT OF JUSTICE CITATION: R. v.

Normand , 2023 ONCJ 373 DATE: 2023 08 28 COURT FILE No.: Kenora 22-15100265 BETWEEN: HIS MAJESTY THE KING — AND — Joshua Normand Before Justice E J Baxter Heard on August 11, 2023 Reasons for Sentence Released on August 28, 2023 Ryan Gill............................................................................................... counsel for the Crown Aaron Seib......................................... ………counsel for the accused, Joshua Normand Baxter J.: [ 1 ] On January 13, 2023, the offender, Joshua Normand, pled guilty to one count each of mischief (s. 430(4)), criminal harassment (s. 264(2)(d)), possess loaded restricted firearm (s. 95(1)) and unsafe storage of a firearm (s. 86(1)).

Gladue and pre-sentence reports were ordered. [ 2 ] An agreed statement of facts was read into the record at the sentencing hearing. I summarize it here: [ 3 ] Mr. Normand was in a two-year relationship with victim, Kaija Saarinen, with whom he has a daughter. The couple lived together in Kenora. The relationship was described as “tumultuous” and ended on November 28, 2021, when Ms. Saarinen left their home and temporarily moved in with a friend, Helena Devins, in Kenora. [ 4 ] Mr. Normand has a 5 year old son from a previous relationship who lives in Winnipeg, and who occasionally visited Mr.

Normand and his daughter. [ 5 ] On November 13, 2021, Mr. Normand smashed Ms. Saarinen’s cell phone because he accused her of speaking to people he did not want her to speak to. The phone was rendered inoperable. [ 6 ] Between November 28 and the morning of November 29, 2021, Ms. Saarinen received 168 phone calls and 112 text messages from Mr. Normand. In the messages Mr. Normand called Ms. Saarinen an unfit mother, threatened to release intimate images to her family and acquaintances, and called her obscene names. [ 7 ] Ms. Saarinen informed Mr.

Normand she would be open to attending mediation to work out a parenting time arrangement to allow Mr. Normand to see his daughter. She agreed to allow a visit with the child if the transfer occurred in the parking lot of the OPP detachment, to which Mr. Normand texted, “LOL I would probably kill u if I saw you in the parking lot. Just leave it alone”.

[ 8 ] At 10:03 am on November 29, 2021, Ms. Saarinen contacted the OPP because Mr. Normand had gone to Ms. Devins’ home, causing Ms. Saarinen to be concerned for her safety and that of her daughter. Police arrived, but Mr. Normand had gone. Ms. Saarinen informed police of other incidents involving Mr. Normand, and she agreed to give a statement. [ 9 ] Ms. Saarinen attended at the detachment at 12:02 pm, apologizing for being late as Mr. Normand had again gone to Ms. Devins’ house. Ms. Saarinen saw Mr. Normand’s truck, and he was wearing an orange balaclava. He lifted the balaclava, and Ms. Saarinen saw his face.

He also knocked on the back door of the house. Ms. Saarinen did not answer the door and did not go outside. [ 10 ] At 12:12 pm officers went to Ms. Devins’ house and located Mr. Normand at the rear of the house. He appeared to be intoxicated. He was arrested and charged with domestic mischief. [ 11 ] In examining Mr. Normand’s truck, the police saw a .22 calibre Cooey rifle, a loaded .22 calibre magazine inserted in the rifle along with a second loaded magazine with .22 calibre ammunition in the front seat area of the truck. Open beer cans were also observed in the truck front floor.

They also noticed a loaded 9 mm clip for a handgun but did not see any handgun. [ 12 ] A K-9 unit found a silver Girsan Regard 9 mm handgun outside the house near where Mr. Normand was arrested. This is a restricted firearm. [ 13 ] At the time of the arrest, Mr. Normand possessed a valid Possession Acquisition Licence (PAL) with authorization to possess restricted firearms. [ 14 ] After the arrest, Mr. Normand’s home was searched where the police located and seized 5 more restricted firearms and ammunition. [ 15 ] Mr.

Normand stated during his PSR interview that his intention that day was to shoot himself in front of Ms. Saarinen. [ 16 ] Mr. Normand has a limited criminal record. He was convicted of assault (not domestic) in 2015 for which he received a suspended sentence and 2 years’ probation and a failure to comply with an undertaking in 2018 for which he received a suspended sentence and 18 months’ probation. VICTIM IMPACT STATEMENTS [ 17 ] Both Ms. Saarinen and Ms. Devins provided moving and emotional victim impact statements that they read aloud in court. [ 18 ] Ms. Devins said she was present on the day Mr.

Normand came to her house with the guns. His behaviour was frightening to her. She was emotional, fearful, anxious and paranoid following the incident. She closely followed the court appearances and was a bit more relaxed when she learned Mr. Normand was not granted bail. [ 19 ] Ms. Devins was hypervigilant and incurred significant expense installing a security system with cameras in her home and changing her locks to electronic ones that she was told could not be “picked” as Mr. Normand used to work for a lock company and could easily gain entry to her house. [ 20 ] Ms.

Devins also took to wearing a panic button at work and frequently checking her alarm system and cameras to ensure Mr. Normand was not at her house. [ 21 ] She also attended counselling to address her distress, nightmares, triggering thoughts, paranoia and fear. The offenses caused her to miss some days at work. [ 22 ] Ms. Saarinen stated she has suffered significant emotional trauma because of the offenses. She is taking medication and counselling to address her depression, anxiety and insomnia.

Writing her VIS triggered her memories of that day and brought her feelings back to the surface knowing the sentencing hearing was imminent. [ 23 ] The offenses impacted her ability to trust and affected her ability to be a present and engaged parent to her daughter. [ 24 ] As a result of the offenses, Ms. Saarinen and her daughter moved out of Kenora. She lost her home business, her volunteer activities, and her social network because of the relocation. Returning to Kenora for the hearing was extremely stressful for her, and she was feeling the loss of the life she gave up in Kenora. [ 25 ] Ms.

Saarinen states she feels guilty and fearful for her friends and family who have been affected by seeing her struggle with the impacts of the offenses on her and her daughter. [ 26 ] Leaving Kenora forced Ms. Saarinen to live off her savings. Since April 2022, she returned to work full-time and restarted her home business but being a single parent has added to her responsibilities. Being away from Kenora has limited her access to the supports she had here. She cannot afford to install a security system or buy a different vehicle that Mr. Normand would not know. [ 27 ] Ms. Saarinen fears Mr.

Normand will seek revenge on her for calling the police and causing him to lose everything. She is hypervigilant, suffers nightmares, and fears her life will never be normal again or that she will ever feel safe. MR. NORMAND’S BACKGROUND The Gladue Report [ 28 ] Gladue and pre-sentence reports were prepared for the sentencing hearing.

[ 29 ] The Gladue Report outlines Mr. Normand’s Indigenous heritage as a descendant from a Metis community founded in St. Vital in Winnipeg, Manitoba. His maternal grandfather was Metis and was connected to the original Metis inhabitants from the 1820’s who settled in St. Vital. His grandfather experienced a family history of alcohol abuse on his father’s side that impacted how he was raised. [ 30 ] Mr. Normand’s maternal grandmother was Cree, and Mr. Normand’s mother also grew up in the St. Vital area. His mother grew up witnessing alcohol issues and conflict between her parents.

She experienced abuse at her mother’s hands and other family members. [ 31 ] Mr. Normand’s father was also Metis, and he never married Mr. Normand’s mother, but did father Mr. Normand and his younger brother. However, Mr. Normand’s father was not a consistent presence in his life, struggled with alcohol and maintaining consistent stable employment. Eventually, Mr. Normand’s father abandoned the family. Mr. Normand has no real memories of him. [ 32 ] Mr. Normand grew up with his mother and brother in the St.

Vital area and experienced his mother’s struggle to provide for the family, racism and bullying in school, and having to fend for himself and his brother while his mother worked. [ 33 ] Mr. Normand was close to his maternal grandfather growing up and looked to him as a father figure. However, once Mr. Normand got into his teens he was using cannabis and drinking alcohol regularly that escalated into a problem quickly and caused conflict between him, his mother, and brother. His anger also became a problem and was difficult for his mother to manage. [ 34 ] Mr.

Normand left school at age 16 in grade 10, preferring to drink and use cannabis with friends. He said cannabis helped him with his anxiety and made him feel better. He afforded the substances from his job at a fast food chain and later at a gas station. [ 35 ] At one point Mr. Normand realized he needed to sort himself out. He decided to curtail the drinking and cannabis and return to school to apply himself. He wound up graduating high school with honours at age 20 while maintaining a job at a grocery store. [ 36 ] After high school, Mr.

Normand attended the University of Winnipeg to study a general arts program and achieved average marks. He worked part time to afford classes. Unfortunately, during his first year in university, Mr. Normand’s grandfather passed away from cancer. Mr. Normand did not return to school the next year because it was too expensive. [ 37 ] He attempted to apply to be a police officer, but was not accepted for reasons he did not know, which caused him to use alcohol and cannabis more. He then got work in appliance repairs, and his substance use continued.

He began using cocaine which he learned allowed him to consume more alcohol. He lost his job but was able to repair appliances on his own by advertising his services. [ 38 ] When Mr. Normand was 24, he got involved in a relationship which produced his son. It was an on and off relationship. By this time Mr. Normand realized he was an alcoholic, and his alcoholism eventually cost him this relationship, and interrupted his contact with his son. [ 39 ] In 2019, Mr. Normand moved to Kenora for his new relationship with Ms. Saarinen. He got a job with a local lock and security company and was living with Ms. Saarinen.

When the pandemic hit, Mr. Normand was drinking more and more. He quit his job and started his own appliance repair business, which thrived despite the pandemic. He was nominated for the Best New Business Award through the Kenora Chamber of Commerce in 2020. [ 40 ] His daughter was born, but his alcohol addiction caused his relationship with Ms. Saarinen to end and resulted in the charges he is now addressing. He came home one day to see his home with Ms. Saarinen was basically empty and that she had left him. He spiralled into a drinking binge and contemplated suicide. Highly intoxicated, he drove to Ms.

Devins’ house with his guns intending to say goodbye to Ms. Saarinen and his daughter and then kill himself. He was arrested before he could carry out his plan. [ 41 ] Since the charges in November 2021, Mr. Normand has been held in custody in the Kenora District Jail and the Central North Correction Centre in Penetanguishene. He was disciplined for drinking in CNCC and was placed in segregation for 10 days. He decided then to stop drinking and to focus on healing. [ 42 ] At CNCC he helped 6 or 7 inmates obtain their high school diplomas, which gave Mr. Normand a sense of purpose.

A few of the inmates he helped provided support letters that were made exhibits to this hearing. [ 43 ] Once back at the Kenora jail, Mr. Normand began working with service providers to address his addictions and mental health issues. He took

part in any program he could. Several support letters from jail staff and service providers were also tendered in this hearing, and they note he was an exemplary inmate, highly motivated, engaged and made strides to improve his outlook and insight. Numerous certificates were provided to the court verifying Mr. Normand’s participation and completion in programs to address his issues. [ 44 ] At one point the AA/NA meetings at the jail were discontinued, and Mr. Normand then took over running the meetings, much to the relief and gratitude of the jail’s addictions counsellor. In addition, Mr.

Normand has been working in the kitchen every day at the jail. [ 45 ] Mr. Normand plans to attend out-patient treatment at a program in Winnipeg that has a standing acceptance for him when he is released and to continue with AA. He hopes to rekindle his relationship with his son, who has been suffering negative impacts from having his father in custody. The Pre-sentence Report [ 46 ] The pre-sentence report prepared outlines a very similar narrative of Mr. Normand’s background and previous issues as the Gladue Report. However, the PSR paints a less positive perspective of Mr. Normand’s attitude about the charges.

The report writer noted Mr. Normand had limited to no feelings of remorse for his actions and did not appear to appreciate how his actions impacted Ms. Saarinen. The writer also noted Mr. Normand blamed the court system, jail staff and the Crown attorney for his situation. He did not appear to understand how serious his charges were and laughed when discussing the bail hearing and the reasons for his detention on the

tertiary grounds as he felt most Canadians lost faith in the justice system a long time ago, and his being released would not cause a loss in that faith. [ 47 ] The PSR provides information from Ms. Saarinen about their relationship. Ms. Saarinen and other sources shared details of Mr. Normand’s selfish, aggressive, controlling, unsupportive, and violent behaviour toward her. His drinking was a major issue contributing to the conflict and dysfunction the couple experienced. [ 48 ] Mr. Normand’s previous partner described to the writer very similar issues while in her relationship with Mr. Normand.

Alcohol was a serious problem for Mr. Normand, and it impacted his ability to be a functional partner to her and a father to their son. She noted, however, that since Mr. Normand has been in custody and sober, they are more civil with each other. She hopes that when Mr. Normand is released, he can be an effective co-parent. [ 49 ] The PSR writer made note of Mr. Normand’s attitude and behaviour in custody noting he received one infraction for drinking and threatening staff at CNCC and for fighting with an inmate in the Kenora jail. The writer made no mention of the assaults he suffered in custody. [ 50 ] Mr.

Normand’s mental health was assessed while in custody. He was diagnosed with a major depressive disorder with a single incident at the moderate level. He had no history of self-harm or suicide attempts. He was placed on medication to manage his depression. His attitude and engagement improved over time, and he appeared to be doing well, with jail staff providing letters of support for this hearing. [ 51 ] The writer of the report opined that Mr.

Normand is articulate, was cooperative with her, demonstrated little or no remorse for his actions, and knows how to portray himself in a positive way to garner favour with the sentencing process. She expressed significant concern for the safety of Ms. Saarinen and his daughter, given his past behaviour in domestic relationships. She recommended Mr. Normand continue with intensive mental health and addictions programming and treatment along with other conditions for his community supervision after his release.

POSITIONS AND SUBMISSIONS The Crown’s position and submissions [ 52 ] The Crown seeks a total sentence of 6 years, 9 months, reduced to 5 years on the totality principle, and less Mr. Normand’s time in custody. The sentence proposed is broken down as 5 years for the s. 95(1), 1 year for the criminal harassment, 6 months for the unsafe storage and 90 days for the mischief. [ 53 ] The Crown shared the concerns and dim opinions expressed in the PSR noting the offenses here are extremely serious and the facts highly aggravating. Mr.

Normand demonstrated a high level of premeditation in going home, unlocking his guns, loading them and the magazines, transporting them to Ms. Devins’ home and attempting to carry out his plan. His intent was “horrifying”, disturbing and made much more serious and dangerous given his level of intoxication. Had the police not arrived when they did, the situation might have escalated to a homicide. [ 54 ] The Gladue factors were acknowledged by the Crown, as well as the good work Mr. Normand has done while in custody. However, the Crown was concerned about Mr.

Normand’s apparent lack of remorse and insight and that the plea was not a true plea bargain given the strength of the Crown’s case, although the plea did save public and court resources. [ 55 ] Mr. Normand has acknowledged his alcohol addiction, but the Crown expressed concern for the history of domestic violence and the contents of the PSR. While Mr. Normand is doing well in a highly structured environment in custody, the worry lies in how he will contend with the “real” world when he is released without strong community supervision. [ 56 ] The Crown stated Mr.

Normand needs to be sentenced to the penitentiary and eventually supervised on a parole release to assist with reintegration into society. The Crown could seek a higher sentence, but that the 5 years being sought is measured while also sending a clear message to Mr. Normand and others who might consider similar behaviour. The focus in sentencing Mr. Normand ought to be denunciation and deterrence given the use of firearms in this situation. [ 57 ] As a registered, permitted gun owner, Mr. Normand flouted the rules that apply to lawful, responsible gun owners.

He is not a youthful offender, nor is he a first offender. [ 58 ] The other aggravating factors identified are the mischief is in a domestic context, making it statutorily aggravating; the criminal harassment was egregious given the number of communications and their content, as well as Mr. Normand stalking Ms. Saarinen, and the rifle was improperly stored and illegally transported. [ 59 ] Mr. Normand’s release plans to unsupervised out-patient treatment does not give the Crown comfort. His plan to live with his mother is problematic given she had to be cautioned for contacting Ms. Saarinen.

His mother may not be a good supervisor for him. [ 60 ] In addition to the sentence proposed, the Crown also requests a DNA order, a s. 109 order for life and a s. 743.2 order. No restitution order is being sought. [ 61 ] In support of the Crown’s position, the Crown relied on several cases: [ 62 ] In R. v. McGrath , 2020 ONCJ 192 , involved post-trial convictions for multiple gun offenses. None of the offenses are of the types in the current case, but for the s. 95(2) conviction entered. Mr. McGrath had a longer and more serious criminal record than Mr. Normand. McGrath occurred at the height of the pandemic.

He was not a lawful gun owner. The court there relied on decisions that stress how dangerous loaded handguns brought into public spaces are. People who carry concealed, loaded handguns are willing to shoot someone and are inherently dangerous to everyone. The judge sentenced Mr. McGrath to 730 days for the s. 95(2) count in that

case, and the total sentence received for all of the offenses was 1825 days less 520 days of pre-sentence time, for a total of 1305 days orjust over 3.5 years. [63] R. v. Serrano and Samaniego, 2018 ONSC 6785, involved 2 offenders who brought a loaded handgun into a Toronto nightclub. Both offenders had been consuming alcohol. Mr. Samaniego received a sentence of 45 months, which the court stated was an exemplarysentence for possessing a loaded restricted firearm without having a licence or authorization to do so (s. 95(1) of the Criminal Code). Mr.

Serrano received a sentence of 31 months’ and 3 weeks’ imprisonment. [64] R. v. Melo, 2012 ONCA 562, a sentence appeal, resulted in the Ontario Court of Appeal upholding the sentence of 5 years less 20months credit for 14 months of pre-trial custody for aggravated assault and possession of a firearm without a license. [65] R. v. Nur, 2015 SCC 15 , [2015] 1 SCR 773, is a significant Supreme Court of Canada decision about gun offenses. Mr.Nur was sentenced to 3 years’ imprisonment for the s. 95(1) offense.

The main issue in this decision was the constitutionality ofmandatory minimum sentences, but the Supreme Court did make commentary regarding the seriousness of gun offenses in Canada, andthat higher sentences are required when guns are illegally brought into public spaces. [66] R. v. Kohl, 2009 ONCA 100, is a criminal harassment case that is factually very different from Mr. Normand’s behaviour. TheCourt of Appeal reduced the sentence of Mr. Kohl from 3 years to 2 years.

The court noted that criminal harassment cases can have sucha wide range of facts and circumstances that it “defies the range setting exercise”. [67] R. v. Wells, 2000 SCC 10 , [2000] 1 SCR 207, is a case involving sentencing of an Indigenous offender and discussesthe sentencing principles to apply in light of Gladue for Indigenous offenders and Proulx in terms of conditional sentences. It is not agun related case. DUNCAN APPLICATION & DEFENSE POSITION ON SENTENCE [68] Mr. Normand’s counsel submits that Mr. Normand be sentenced to a time-served position (36.5 months) and 3 years probation.

He asks that the time be assigned to the s. 95(1) with all the remaining counts concurrent. [69] Mr. Normand, as of August 11, had been in custody for 621 days. On an enhanced basis, this totals 932 days (621 x 1.5), whichleaves 163 days going forward and credited under Duncan for the conditions Mr. Normand endured while in custody. Defense is askingfor credit on a 1:2.2 basis in the result. (936 + 163 = 1095 days or 36.5 months) [70] As of the date of this decision, Mr. Normand will have served 631 days or 946.5 enhanced days, rounded up to 947 days, or 30.55months.

If he is given the extra credit contemplated under Duncan, he would be in a time-served position. [71] Defense submits that Mr. Normand understands the offenses here are serious and acknowledges the impacts his actions have hadon the victims. His actions posed a real danger to the community, the victims and himself. He argues that the offenses here are at themiddle of the available range for similar cases. [72] The cases relied on by the Crown are not entirely on point with this case given their facts and circumstances.

He agrees thatdeterrence and denunciation are important, but that the court cannot lose sight of the important sentencing principle of rehabilitation. Inaddition, a three-year sentence for Mr. Normand who has never been in custody before is “massive”. [73] Mr. Normand has a limited criminal record with only 2 entries for which he received probation. He has never been in custodybefore. He has no prior convictions for firearms offenses. [74] At the time of the offenses Mr. Normand was highly intoxicated and emotionally distraught over losing his relationship and hischild. His mental health was not good at the time.

He did not threaten Ms. Saarinen with the gun. He intended to kill himself. [75] Since the offenses, Mr. Normand has entered guilty pleas, and has been doing very well in custody. He is addressing hisaddictions, anxiety, and depression. He has plans for the future once he is released, despite losing everything – his family, business,home, financial stability, truck, and freedom. [76] As an Indigenous offender, Mr.

Normand has significant Gladue factors given his family history and childhood traumas.Therefore, his moral blameworthiness is reduced. [77] As for the Duncan application, as it is commonly referred to, defense contends that Mr. Normand had a difficult time in custodyat CNCC and the Kenora District jail. [78] The written submissions in the application outline the position of the defense to justify a higher level of enhancement than thatavailable in the Criminal Code. The Duncan enhancement is available where an offender experiences exceptionally harsh custodyconditions and an adverse impact as a result (see R. v.

Duncan, 2016 ONCA 754). [79] Courts have acknowledged lockdowns due to staffing issues in remand facilities such as CNCC and the Kenora jail are anongoing problem causing profound and severe impacts on all inmates. Courts may infer hardship in obvious cases. State-causedconditions in facilities from lack of adequate funding or staff can result in particularly harsh conditions. (R. v. Inniss, 2017 ONSC 2779,R. v. Nguyen, 2017 ONCJ 442) [80] While the pandemic was not as severe during a portion of the time Mr. Normand spent in custody, the virus was still an issue.

The impacts of the pandemic are well-known to the judiciary who have had to address the pandemic since the beginning. The pandemiccreated additional stress and other issues in the jails, making inmates’ time in custody more difficult. (see R. v. Aiton-Poore, 2021 ONCJ85)

[ 81 ] According to Mr. Normand’s affidavit produced for the application, and upon which the Crown did not cross-examine him, Mr. Normand stated when he was first in custody in Kenora he was in isolation lockdown for 45 days. There were 4 inmates to a 2-man cell, and he had to sleep on the floor under the lower bunk bed. He had one change of clothes due to lack of laundry staff/service. [ 82 ] The toilet and sink in the cell overflowed onto the floor where he slept. Inmates urinated into cups because of the broken toilet. Garbage was piled up, and inmates could not leave the cell to clean up.

During this period, Mr. Normand also contracted COVID-19. (He was vaccinated with two doses prior to the offenses.) [ 83 ] Mr. Normand was transferred to CNCC on February 1, 2022, where he spent the entire month of February in isolation. He was at CNCC until July 17, 2022, and was in lockdown for 108 days, which he understood to be due to staffing shortages. [ 84 ] Inmates at CNCC were allowed a shower and phone calls once every 72 hours. He experienced a 109 hour lockdown without a shower or phone access. He had no outside view from his cell and often had to pick insects off his body.

He received no programs, mental health support, or other services. (see R. v. Pye , 2021 ONCJ 517 ) [ 85 ] Mr. Normand suffered two incidents of assault. He was choked by another inmate and lost control of his bodily functions. On the other occasion he was beaten by 4 inmates. Staff did not intervene. Mr. Normand also saw fighting between inmates “almost every day”. [ 86 ] Because of his time in CNCC, Mr. Normand states he suffered increased anxiety and paranoia. He lost about 50 pounds. He tried to write letters to the Ombudsman about the conditions in CNCC, that he alleges the jail staff did not take kindly to.

His letters were often thrown out, and staff threatened to make his time there “difficult”. [ 87 ] When Mr. Normand returned to the Kenora jail on July 17, 2022, he tested positive for COVID-19 again and was locked down for 15 days. He was assaulted on October 29, 2022 and received a chipped tooth and bruising on his face and head. [ 88 ] During this time, the Kenora jail was (and still is) undergoing a major renovation and expansion. The noise of the work and fumes from paint and other chemicals caused him “constant” headaches.

In addition, the renovations caused the inmates to be placed in temporary holding areas that were overcrowded, unsanitary, and very uncomfortable. [ 89 ] A memorandum from CNCC’s security manager was tendered and showed the number of, and reasons for, the “unscheduled” lockdowns Mr. Normand experienced at CNCC. The chart shows the reason for all the lockdowns was “staffing issues”. At CNCC inmates are usually allowed to be out of their cells from 7 am to 7 pm daily, except in lockdown situations. The total number of lockdowns according to the security manager is 92 days. Mr.

Normand claims 108 days. [ 90 ] At the Kenora jail his days in isolation (lockdown) totals 119 days, bringing the total lockdown days to 227 (119 + 108 = 227). Mr. Normand seeks credit for the 227 days in lockdown plus an additional 163 days, which is an increase of .7:1 ratio over the 1:1.5 Criminal Code and Summers ratio ( R. v. Summers , 2014 SCC 26 ). [ 91 ] Defense contends that he is not seeking to turn a fit and appropriate sentence into an unfit one with a Duncan credit. He urges the court to take note of the number and duration of the lockdowns and their impact on Mr.

Normand’s physical and mental health. Although Mr. Normand had infractions in custody, he was looking for an escape from his reality. Caged people do desperate things. [ 92 ] According to the United Nations standards, the two institutions involved here are not meeting the minimum UN standards or treating inmates like human beings given the conditions they are living with. Rehabilitation is not possible in such environments. [ 93 ] As for the offenses here and the sentencing principles to be applied in this case, defense argued that Mr. Normand recognizes he created a dangerous situation.

His life was falling apart, causing him to make very poor decisions. His actions differ from other offenders who obtain unlawful guns and commit offenses with them. He did not threaten anyone with a gun. He did not intend to physically hurt anyone but himself. [ 94 ] Mr. Normand used his guns in furtherance of a hobby and hunting – not for committing crimes. He is prepared to give up all his guns and ammunition and abandon his gun hobby. He is not interested in complicating the lives of the victims. Sentencing Mr.

Normand to a penitentiary term will not protect the victims or effectively rehabilitate him. [ 95 ] Mr. Normand has been doing well in custody of late and is working on his rehabilitation. All his certificates, his support letters – even one from an officer at the Kenora jail – and his work at the Kenora jail demonstrate he is working on his rehabilitation. His guilty plea is a clear demonstration of remorse, despite what the Crown asserts. [ 96 ] Defense relies on other cases in its submissions: [ 97 ] In R. v.

Ward-Jackson , 2018 ONSC 178 , the offender in that case pleaded guilty to several firearms offenses, including one count of a s. 95(1) offense (an AK-47). He was trafficking in firearms. The offender applied for a Duncan credit in addition to the Summers credit. He received a global sentence of 11 years less a 6 year and 15 day Summers credit and a 1 year, 4 month Duncan credit. He was left with serving a sentence of 3 years, 7 months and 14 days. Specifically, the offender was sentenced to 4 years less 2 years, 10 months and 2 weeks for unlawfully possessing the AK-47. [ 98 ] In R. v.

Pettipas-Lizak , 2018 ONSC 6105 , the offender pleaded guilty to pointing a firearm at his then girlfriend. He pulled the trigger, but the gun malfunctioned. He was also convicted after trial of other offenses, including forcible confinement. He had 2 separate sentencing hearings. At the time of the offenses, the offender was struggling with substances. His background was somewhat similar to that of Mr. Normand, except that he is not Indigenous. The offender was sentenced to a conditional sentence with credit for the 11 months he spent in pre-sentence custody for the point firearm.

CROWN POSITION ON DUNCAN APPLICATION

[ 99 ] The Crown opposed the Duncan application. He argued the enhancement under Summers takes into account the qualitative and quantitative aspects of pre-sentence custody. The actual presumption is a 1:1 ratio unless an enhancement is justified by the harsh conditions of the pre-sentence custody an offender experiences as set out in s. 719 of the Criminal Code and Summers . [ 100 ] Because Mr. Normand had misconducts while in custody, it militates against the Duncan enhancement. [ 101 ] The Duncan enhancement is highly discretionary and is not mandatory.

In addition, it is inappropriate to do a mathematical gross up as defense is requesting. It is to be used as a mitigating factor to assist in reaching an appropriate credit. [ 102 ] As for Mr. Normand’s experience, all inmates experienced the COVID risks and impacts and was not exceptional. He argued that Mr. Normand’s experience did not meet the qualitative test for exceptionality in experience and impact on him. [ 103 ] The Crown relied on several cases in its response to the Duncan application. [ 104 ] In R. v.

Marshall (#1 and #2), 2021 ONCA 344 , a Duncan credit is available where particularly difficult and punitive pre-sentence custody conditions that go well beyond the normal restrictions can be shown. The Duncan credit is not a deduction from an otherwise appropriate sentence but is a factor to be considered in arriving at an appropriate sentence, and can be mitigating, whereas a Summers credit is not a mitigating factor.

Giving a numerical credit can skew the calculation of the ultimate sentence and can render a sentence inappropriate, but a mathematical calculation may be helpful in guiding other sentencing judges. [ 105 ] In R. v. Batchelor , 2022 ONSC 2392 , where an offender leads evidence of specific hardship, the Duncan credit can be given greater consideration. There appears to be no definitive approach to awarding a Duncan credit, because different judges use it in different ways to acknowledge particularly harsh pre-sentence custody. [ 106 ] In R. v.

Omoragbon , 2020 ONCA 336 , the court noted the fundamental principle in sentencing is proportionality. The court did not grant the sentence appeal. [ 107 ] In R. v. McNicols , 2020 ONSC 6499 , the court gave some Duncan credit for the hardships the offender experienced but gave no consideration for COVID-19 factors. [ 108 ] In R. v. Dockery , 2020 ONCA 278 , the court noted the Duncan credit is completely discretionary. [ 109 ] In R. v. Morgan , 2020 ONCA 279 , the court found the sentence imposed was lenient, and reducing it further would render it unfit.

The offender had other remedies to address the impacts of COVID-19. [ 110 ] In R. v. Audet , 2020 ONSC 5039 , the court declined to give COVID-19 Duncan credit but did give credit on a 1:1 basis for the lockdown days. COMMENTS OF MR. NORMAND [ 111 ] Mr. Normand exercised his opportunity to address the court. He noted that alcohol has had a negative impact on his life and relationships. His childhood was difficult. He said he was not “looking to hurt anyone” but thought people would be better off without him around.

He acknowledged he made people’s lives “miserable”. [ 112 ] On the day of the offenses, he does not fully remember all the details of what he did, but the VIS affected him, and he was hurt to hear how his behaviour impacted the victims here. He did not know what to say about how deeply Ms. Saarinen has been affected by the incidents and could not imagine what she has been going through. He will have to “deal with that forever”. [ 113 ] Of his time in custody, he said he would not wish CNCC on anyone.

He recalled seeing one inmate sitting, hugging his knees, rocking back and forth saying they were being tortured in there. He said in CNCC they got one meal tray per day. He now jumps at noises and could not tolerate the sounds of inmates “wailing” in the institution. [ 114 ] Since being back in Kenora and after making the decision to stop drinking, he wants to “give back and be useful”. He is now more aware of how trauma affects people and can understand how he traumatized Ms. Saarinen and her friend. He does not want to be that person. He also noted he treated Ms.

Saarinen the same way his father treated his mother, and he does not want to be like him. [ 115 ] Mr. Normand said he cries himself to sleep. He misses his family and wants to go home. [ 116 ] He concluded saying he understands why Ms. Saarinen called the police. He would have done the same thing. He does not blame her for his being in jail. He put himself in jail. He does not want her to worry about him doing anything to her.

ANALYSIS [ 117 ] The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." (See s.718) [ 118 ] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code .

These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. (See s. 718(a) – (f)) [ 119 ] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. (See s. 718.1) This means that, for the sentence I impose to be appropriate, it must be tailored to Mr.

Normand’s circumstances, and the circumstances of the offences he committed.

[ 120 ] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are present. (See s. 718.2(a)) This would include features of Mr. Normand’s background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code , for example

section 718.2(a), or provided by the higher courts, about particular aspects of this case that I must consider. [ 121 ] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating features of this case: • The mischief was committed in a domestic relationship context and is statutorily aggravating. • The criminal harassment facts are particularly concerning given the number of communications and their content and were committed in a domestic context. • Mr.

Normand was highly intoxicated when he illegally transported the guns to Ms. Devins’ home. • He had loaded firearms in a public place – a residential neighbourhood – thereby creating an extremely dangerous situation. • He, as a licenced gun owner, knew the rules for transporting and storing restricted firearms, but ignored them. • The amount of readily available ammunition he had with him. • The level of planning done. • He has a criminal record, albeit a minimal one. • The level of trauma and serious impacts on the lives of Ms. Saarinen and Ms. Devins. [ 122 ] The mitigating factors I find here are: • Mr.

Normand has significant Gladue factors and a reduced moral blameworthiness. • He has entered guilty pleas and gave an expression of remorse for his actions to the court. • His time in custody has been difficult and has had an impact on him. • He had taken important steps toward his rehabilitation and understanding the seriousness of his offenses and their impact on others while in custody. • He has community and family support. • His criminal record is limited and has no previous convictions for firearms offenses. • He has plans to continue his healing journey once released. [ 123 ] It is clear to me that Mr.

Normand’s alcoholism and past traumas lead him to make terrible choices in his personal life. He was not able to properly cope with his feelings of abandonment, anger, and inadequacy. Rather than seek help for his issues, he, over time, escalated his substance abuse and harmed people in his life he ought to have protected, loved, and respected. His choices and his struggles with addiction and mental health lead him to the offenses for which he is now before the court. [ 124 ] The seriousness of the offenses committed here cannot be overstated. His treatment of Ms. Saarinen is unacceptable and extremely troubling.

She and Ms. Devins did not deserve what happened to them. They must live with what he did for many years, if not for the rest of their lives. It is hoped that one day they can lead more normal, happy lives without the fear of Mr. Normand causing them further distress and trauma. [ 125 ] One shudders to think what might have happened had the police not arrived at Ms. Devins’ home that day. The issue of firearms offenses committed in domestic violence contexts, and combined with alcohol, is a recipe for disaster that society rightly condemns in Canada.

The sentences handed down by the courts reflect the seriousness of these types of offenses. Denunciation and deterrence must be given significant consideration in such matters. [ 126 ] In considering the Duncan application here, I find the factors attributed to the impact of COVID-19 on Mr. Normand are not exceptional in that during most, or at least part of the time he was in custody, the pandemic was beginning to wane. The virus variants were not as deadly, and Mr. Normand was vaccinated prior to the offenses.

He offered no evidence about any particularly serious or exceptional impacts his contracting the virus had on him. I can only surmise he did not suffer any long-lasting or serious effects of the virus. Further, the COVID-19 risks were applicable to all inmates, and no exceptionality applies to Mr. Normand. He will not be granted any Duncan enhancement for the COVID-19 factor. [ 127 ] As for the other factors to be considered in a Duncan application, the factors must be exceptional and have an impact on him.

I note that the Summers enhancement is intended to acknowledge the already harsh conditions people experience in pre-sentence custody, among other factors. Those in a remand situation awaiting trial or disposition are presumed innocent. Until he entered his guilty pleas on January 13, 2023, Mr. Normand was one such person. [ 128 ] The Crown here agrees Mr. Normand is entitled to the Summers enhancement of 1.5 days for every day spent in pre-sentence custody.

[ 129 ] In considering all the evidence tendered, the reports generated, the able submissions of counsel, the victim impact statements considered, I sentence Mr. Normand to 4 years of custody. The breakdown is as follows: • For the unlawful possession of a restricted firearm, I sentence Mr. Normand to 3 years (1460 days) custody. • For the criminal harassment, I sentence Mr. Normand to 12 months (365 days) custody, consecutive. • For the mischief, I sentence Mr. Normand to 60 days custody, concurrent. • For the careless storage, I sentence Mr.

Normand to 180 days, concurrent. [ 130 ] The sentence takes into consideration the principles of totality and restraint. The sentence also shall be reduced by the number of days Mr. Normand has spent in custody to date. That means the 4 years, which equals 1460 days, shall be reduced pursuant to s. 719(3) of the Criminal Code or the Summers credit by 947 enhanced days, leaving 513 days going forward. [ 131 ] In terms of the Duncan credit, I am reducing the time in custody by 63 days while also taking Mr.

Normand’s exceptionally harsh time in custody at CNCC, and its impacts on him, tempered by his infractions while in custody. In addition, I have considered the Duncan factors as mitigating for Mr. Normand. Therefore, in the final calculation, Mr. Normand has 450 days (15 months) remaining in his sentence. [ 132 ] Following his release from custody, Mr. Normand will be placed on probation for a period of three years.

The terms of his probation order, in addition to the statutory conditions, shall require him to: • Report to probation within 24 hours of his release from custody and thereafter as required. • Live at an address approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. • Attend and actively participate in any assessments, counselling, treatment, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including, but not limited to, attending at the St.

Raphael Wellness Centre in Winnipeg; alcohol and substance abuse; anger management; domestic violence; healthy relationships, and underlying trauma. • Sign any authorizations or releases required to allow probation to monitor his attendance and participation in the counselling treatment, etc. and provide proof of compliance with the above condition at the request of the probation officer. • Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means with Keija Saarinen, Reija Saarinen, or Helena Devins, except pursuant to a family court order made after today’s date. • Do not be within 50 metres of any place where he knows the persons named to live, work, go to school, frequent, or any place he knows them to be except for required court attendances. • Do not attend the City of Kenora except with the prior written consent of the probation officer. • Do not consume, possess, or purchase alcohol or other intoxicants. • This probation order may be transferred to another jurisdiction once Mr.

Normand finds an approved place to live after release. [ 133 ] The ancillary orders requested for DNA, a mandatory s. 109 weapons prohibition for life, a s. 743.2 order while he is in custody and a forfeiture order for all the firearms, ammunition and other items seized by police and set out in the Report and Return to Justice, filed, shall be granted. [ 134 ] I thank counsel for their thorough and helpful submissions and materials. I wish for Ms. Saarinen and Ms. Devins the strength to move forward in their healing paths and to find some level of normalcy and happiness in their futures.

Released: August 28, 2023 Signed: Justice E J Baxter