) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 2630

CITATION : R. v. Crevier, 2013 ONSC 2630 Court File No.: 13-70000155-0000 DATE: 20130517 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – JESSICA CREVIER Defendant ) ) ) ) ) ) ) ) ) ) ) Erin Panzer, for the Crown Nathan Gorham , for the Defendant ) ) HEARD: April 26 and May 3, 2013 L. A. PATTILLO J. (Orally) REASONS FOR SENTENCE Introduction [ 1 ] On April 15, 2013, Jessica Crevier was convicted by a jury of seven charges arising out of a search of apartment 704 at 125 Lawton Blvd. in the City of Toronto on February 6, 2012. [ 2 ] Specifically, Ms.

Crevier was convicted of possession of a loaded restricted firearm without a license and a registration certificate (Count 1); possession of a restricted firearm knowing she was not the holder of a license and a registration certificate (Count 2); possession of a restricted firearm without having a license and a registration certificate (Count 3); possession of a prohibited device without a license (Count 5); possession of cocaine for the purpose of trafficking (Count 6); possession of proceeds of property obtained by crime exceeding $5,000 (Count 7); and possession of marijuana (Count 8). [ 3 ] Count 4, possession of a firearm knowing that the serial number had been altered, defaced or removed, was withdrawn by the Crown and dismissed by me at the conclusion of the evidence.

Circumstances of the Offences [ 4 ] The following facts are clear from the jury’s findings. [ 5 ] On February 6, 2012, officers from Toronto Police Services, Guns and Gangs Task Force, utilizing information they had obtained from confidential sources about Ms. Crevier, obtained a search warrant authorizing them to search apartment 704 at 125 Lawton Blvd. in the City of Toronto. When they attended at 125 Lawton Blvd. later that evening, they observed the lights go out in apartment 704 and shortly thereafter Ms. Crevier exited the elevator on the ground floor and left the building.

The police arrested her as she drove out of the building’s parking lot in a van. She had $1,308.43 in cash on her and had a small amount of

marijuana hidden in her left bra cup. [ 6 ] Using keys taken from Ms. Crevier, the officers then entered and searched apartment 704. Apartment 704 is a one bedroom apartment with a kitchen, combined living room and dining room and a washroom. There are cupboards in the hall and in the bedroom. The apartment was empty when the police entered. [ 7 ] There were pictures of Ms. Crevier in the dining room and on the refrigerator in the kitchen. There was also an appearance notice addressed to her relating to an upcoming court date and an autographed picture of a rap singer on the fridge.

The autographed picture was addressed to “Jen” which is Ms. Crevier’s nickname. There was woman’s clothing in the cupboards in both the hall and the bedroom. [ 8 ] The officers located a .40 calibre Smith & Wesson semi-automatic handgun containing a 15 round capacity magazine with eight bullets in a drawer of a night table on the wall by the closet in the bedroom. The handgun was wrapped in an argyle sock and a black woollen glove. In the same drawer both on top of and under the gun, there were a number of personal documents dated from January 2011 to January 31, 2012, belonging to Ms.

Crevier including provincial offence tickets, statement of benefits, notice of impending conviction, notice of suspension of driver’s license and six pictures of Ms. Crevier. [ 9 ] The officers also found a total of 89.4 grams of both powder and crack cocaine in the apartment, in the bedroom and the kitchen. In the bedroom, they located 5.45 grams of cocaine wrapped in a plastic bag in a jewellery box on top of the dresser and two plastic bags containing 29.18 and 46.21 grams of cocaine respectively in a Louis Vuitton bag hanging on the cupboard door.

In the kitchen, in a box on top of the cupboards they located three separately packaged amounts of crack cocaine weighting 3.19 grams, 3.62 grams and 1.75 grams respectively. Under the kitchen sink, they found a box which had a boiling pot and a large Pyrex beaker, both with cocaine residue on them, as well as various utensils for cooking powder cocaine into crack. [ 10 ] Finally the officers found $4,920 in cash in the bedroom in the Louis Vuitton bag and in a hanging shoe rack in the cupboard. [ 11 ] The estimated street value of the cocaine found in the apartment was approximately $10,000. [ 12 ] Although Ms.

Crevier was occupying the apartment, the lease for it was in the name of a friend of hers, Ms. Gitoya Blair. Circumstances of the Offender [ 13 ] Ms. Crevier is 26 years old. She was 25 at the time of the offences. I have very little information about her beyond the evidence at trial. She has a brother age 30 and a step sister who lives out west. Her parents are retired and live in Keswick, Ontario. Sometime prior to the present offences she lived in a rooming house at 44 Hoover Crescent in Toronto. She continued to receive mail at that address after her arrest. At the time Ms.

Crevier was arrested she was on government assistance and did not have a job. In early 2012 she owned a Jeep Cherokee, which she purchased by trading in her first car which her parents gave her and using money she was given by her grandmother. Her parents were present throughout the trial and her mother testified briefly on her behalf at the trial. [ 14 ] A letter from a counsellor at Elizabeth Fry Toronto was filed on Ms. Crevier’s behalf at the sentencing hearing. The writer indicates that she has been working with Ms. Crevier since she was incarcerated six years ago and has spent many hours with her.

She indicates that Ms. Crevier completed the City of Toronto Hostel/Shelter Worker Training but has been unable to find employment in that field due to her criminal record. Just prior to her arrest on the charges before the court, Ms. Crevier had been selected to attend the Elizabeth Fry Peer Program which involves speaking in the community about issues affecting criminalized women. She describes Ms. Crevier as respectful, determined and motivated. [ 15 ] Ms. Crevier has a lengthy criminal record both as a youth from 2002 to 2004 and between 2004 and 2008 as an adult.

On January 6, 2002, she was convicted of theft under $5,000; possession of property obtained by crime and failing to stop at the scene of an accident and was sentenced to one year probation on each charge, concurrent. In July 2002, she was again convicted of possession of property obtained by crime under $5,000 and failure to attend. She received 12 months probation on each charge, concurrent. In December 2002, she was convicted of robbery and given 12 months probation.

On July 21. 2004, she was convicted as an adult of two counts of failing to comply and received one day for each, concurrent in addition to eight days pre-sentence custody. [ 16 ] In addition to the above convictions, she has also been convicted of drug offences as both a youth and adult. On July 8, 2004, she was convicted of trafficking in a

Schedule 1 substance in Youth Court and sentenced to 12 months probation and a mandatory prohibition order under the Youth Criminal Justice Act . On March 16, 2007, she was convicted of possession of a

Schedule 1 substance and sentenced to a three month conditional sentence. Finally, on April 28, 2008, she was convicted of trafficking in a

Schedule 1 substance, possession of a

Schedule 1 substance and failure to comply with a recognizance. She was sentenced to 1 day plus credit for eight months per-sentence custody and two years probation on each charge, concurrent plus a prohibition order under s. 109 of the Criminal Code . [ 17 ] At the conclusion of the sentence submissions, Ms. Crevier addressed the court. She expressed remorse about the situation she finds herself in. She spoke about how hard it has been on her and her family. She acknowledged that she had made wrong choices and mistakes in her life. She said she was trying to turn her life around.

She trained as a legal administrative assistant but had trouble finding a job. She promised that she would never be in the position she has found herself in again. The Principles of Sentencing [ 18 ] The fundamental purpose of sentencing as set forth in s. 718 of the Criminal Code (the “Code”) is to contribute to respect for the law and to maintain a just and peaceful and safe society by imposing a just sanction that has one or more of the six objectives set out in that section. The objectives include denunciation, deterrence, rehabilitation, promotion of a sense of responsibility

in the offender and acknowledgement of the harm done to victims and the community.

Section 718.1 further provides that a sentencemust be proportionate to the gravity of the offence and the degree of responsibility of the offender. [19] The above purpose and principles of sentencing in the Code are essentially set out in s. 10(1) of the ControlDrugs and Substances Act in respect of a sentence for an offence under that Act. [20] There is no question that gun violence and the illegal possession of guns is a serious problem in Toronto.

Thecourts at all levels in this Province have repeatedly stated that the fundamental principles of sentencing that must be addressed in thestrongest possible terms in respect of gun related crimes are denunciation and deterrence. See: R. v. Danvers (2005), (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.) at para. 78; R. v. Lambert, [2011] O.J. No. 3389 (S.C.J.) at paras. 46 to 48; R. v.Abubeker, [2011] O.J. No. 2927 (O.C.J.). [21] Further, the Courts of this Province have also repeatedly emphasized the dangerous and insidious nature ofcocaine given the great harm it can cause to individuals and to society in general.

As a result, a sentence for an offence involving cocainewarrants an emphasis on the principles of deterrence, denunciation and protection of the public. See: R. v. Woolcock, [2002] O.J. No.4927 (C.A.); R. v. Kassa, [2006] O.J. No. 5489 (S.C.J.). Position of the Crown [22] The Crown submits that based on all of the facts, the global range of sentence for the offences in this case isbetween seven and eight years. Having regard to the principle of totality, the Crown submits Ms.

Crevier should receive a sentence ofseven years in the penitentiary, less credit on a 1:1 ratio pursuant to s. 719(3.1) of the Code for pre-sentence custody. [23] Allocating the global sentence for each offence, the Crown submits that on Count 1, possession of a loadedrestricted firearm, which requires a mandatory minimum three year sentence for a first offence, Ms. Crevier should receive a sentence ofbetween 4 and 4 ½ years. On Count 2, possession of a firearm knowing she does not have a licence and registration certificate, 1 ½ to 2years, concurrent.

The Crown submits that Count 3, possession of a firearm without a licence and registration certificate should be stayedpursuant to the principle in R. v. Keinapple (1975), (SCC), 15 C.C.C. (2d) 524, [1975] 1 S.C.R. 729 (S.C.C.). On Count5, possession of a prohibited device, a sentence of 6 months consecutive. On Count 6, possession of proceeds of crime over $5,000, 6months concurrent.

On Count 7, possession of cocaine for the purpose of trafficking, 2 ½ to 3 years consecutive and on Count 8,possession of marijuana, 10 days concurrent. [24] The Crown also seeks a s. 109 order for life, a DNA order and a forfeiture order for the handgun andammunition. Position of the Defence [25] The defence submits, having regard to all of the factors in this case, Ms. Crevier should receive a globalsentence of between 2 and 3 years. In support of this position, the defence makes a number of submissions.

In particular, it is submittedthat based on recent rulings from this court declaring the three year mandatory minimum sentence provided for in s. 95 isunconstitutional, the three year mandatory minimum is of no force and effect and therefore inapplicable. In the absence of the minimum,the defence submits that the appropriate sentence for the s. 95 offence is between 2 and 3 years. The defence further submits that inaddition to the conviction on Count 3, the conviction on Count 2, possession of a firearm knowing there is no licence or registrationcertificate, should also be stayed in accordance with Keinapple.

The defence further submits that the sentences for the drug relatedoffences should be concurrent rather than consecutive to the sentences for the gun offences. Finally, in support of the defence sentencesubmission, it is submited the jump factor applies to the sentence given Ms. Crevier’s prior minimal periods of incarceration. [26] The defence takes no issue in respect of the s. 109 order, the DNA order or the forfeiture order. Whether the Mandatory Minimum Sentence in s. 95 of the Code Applies [27] I turn first to the issue of whether, in light of the decision in R. v.

Smickle (2012), 2012 ONSC 602 ,280 C.C.C. (3d) 365 (S.C.J.), the mandatory minimum sentence of three years provided for a first offense of possession of a loadedrestricted firearm as set forth in s. 95(2)(a)(

i) of the Code applies in this case. [28] The defence submits that because this court in Smickle held that the 3 year mandatory minimum sentence forpossession of a loaded prohibited weapon is null and void and of no effect, pursuant to s. 52 of the Constitution Act, the mandatoryminimum no longer has any force or effect. In the absence of the minimum sentence applying, it is submitted that the range of sentencefor a first offence for possession of a loaded restricted firearm is between 2 and 3 years: R. v. Nur (2011), 2011 ONSC 4874 ,275 C.C.C. (3d) 330 (Ont.

S.C.J.). [29] The Crown submits that the mandatory minimum sentence provided for in s. 95 of the Code remains valid untilthe Court of Appeal says otherwise (an appeal from Smickle is currently under reserve at the Court of Appeal). In the alternative, theCrown submits that if the mandatory minimum sentence does not apply, given the circumstances of this case and particularly Ms.Crevier’s criminal record along with the current drug offences, Ms. Crevier should otherwise receive a sentence for possession of theloaded restricted handgun in excess of three years. [30]

Section 95 was first enacted in 1995 and provided for a mandatory one year minimum penalty for a firstoffence. The current three year minimum came into force in 2008. Given the Crown’s alternative position, I am of view that prior todealing with the issue of whether the mandatory minimum sentence applies in this case, it is first appropriate to consider whether Ms.Crevier should receive a sentence of three years or more for the s. 95 offence apart from the current mandatory minimum. In order todetermine the answer to that question, it is necessary to consider sentences for s. 95 offences which were imposed prior to the enactment

of the current sentencing regime in 2008. [ 31 ] In Nur , Code J. considered the range of sentence that existed for a first offence of possession of a loaded handgun for offences which took place prior to the 2008 increase in the mandatory minimum to three years. After referring to the Court of Appeal decisions in Danvers and R. v. Brown , 2009 ONCA 563 which speak strongly of the serious concern of growing gun violence in Toronto, Code J. stated at para. 42: 42.

Once this approach became firmly entrenched, around 2005, [the need to address denunciation and deterrence in sentences for gun offences] the appropriate sentence for a first offence of possession of a loaded handgun simpliciter , that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years imprisonment. Much longer sentences were imposed for recidivists. It is not surprising that this approach took hold around 2005.

As will be seen below, when tracing the history of the 2008 legislation, it was in 2005 that Toronto experienced a dramatic increase in gun-related homicides. It came to be known as "the year of the gun". [ 32 ] It is important to note that the above range was based on cases where, as Justice Code states, the offence was possession of a loaded handgun simpliciter and there were no additional convictions “such as for drug trafficking.” The cases Justice Code referenced in establishing his range for the most

part involved youthful first offenders or offenders with minor prior offences. See Nur , at para. 43 . [ 33 ] A review of cases dealing with sentences for pre 2008 offences for possession of a loaded handgun where the accused has a prior record and/or has a conviction involving drugs indicates that the upper range of sentence identified by Justice Code in Nur of three years increases to as high as six years for the worst offender. I refer specifically to the following cases: • In R. v. Manning , [2007] O.J.

No. 1205 (S.C.J.) , the accused was sentenced to five years for a conviction of possession of a loaded firearm prior to credit for pre-sentence custody. He was 22 at the time of the offence and was arrested carrying a loaded handgun and 3.98 grams of crack cocaine. He had a lengthy criminal record, including a conviction for possession of cocaine for the purpose of trafficking. • In R. v. J.G ., [2005] O.J. No. 4599 (S.C.J.) , J.G. was sentenced to six years for possession of a loaded firearm while not being the holder of a licence or registration certificate.

He was 22 years old, with a lengthy criminal record both as a youth and adult, including two prior gun possession convictions. In addition to the gun charges, J.G. was also convicted of possession of cocaine. The court noted that based on his antecedents and the facts of the offences, J.G. qualified for close to the maximum penalty. • In R. v. Bryan , 2008 ONCA 300 (C.A.), the court upheld a sentence of 3.5 years for possession of a loaded prohibited firearm prior to pre-sentence custody. The accused, who pleaded guilty, had a lengthy criminal record, a difficult upbringing and good rehabilitative potential.

The court noted that the sentence was “within the range for similar offences”. • In R. v. Brooks, 2007 CarswellOnt 7396 (S.C.J.) , the accused was sentenced to 4.5 years for possession of a loaded restricted firearm prior to credit for pre-sentence custody. Mr. Brooks had a loaded gun in a shopping mall. He had a lengthy criminal record both as a youth and as an adult. • In R. v. Fletcher , [2008] O.J. No. 697 (S.C.J.) , the accused received a sentence of 5 years for possession of a loaded restricted firearm.

The accused was arrested in an apartment and the firearm, a handgun, was found inside a gym bag on the floor of a closet in one of the bedrooms. The accused was 25 and had a prior criminal record which included robbery with violence and possession of cocaine for the purpose of trafficking. • In R. v. Brown , [2007] No. 5338 (S.C.J.), Mr. Brown pleaded guilty to charges of possession of a loaded restricted firearm and ammunition, breach of two prior weapons prohibition orders and possession of 4.76 grams of crack cocaine. He was 24 and employed at the time of the offences.

He had a prior related youth and adult record and a history of re-offending. He received a sentence of 6 years for possession of a loaded firearm. [ 34 ] Given the aggravating factors in this case, which I will come to, in my view the range of sentence identified by Justice Code in Nur is not applicable. Rather the appropriate range of sentence is between three and six years. As a result, it is not necessary to consider whether the mandatory minimum is applicable in respect of the sentence for the offence of possession of a loaded restricted firearm under s. 95 of the Code .

Range of Sentence for Possession of Cocaine for the Purpose of Trafficking [ 35 ] As noted, cocaine is a very dangerous and insidious drug which has caused and continues to cause great harm to our society. Trafficking in cocaine is a very serious offence. [ 36 ] In Woolcock, which involved a conviction of possession for the purpose of trafficking of approximately 6 grams of cocaine, the Court of Appeal stated that the range of sentence for this type of offence is between 6 months and 2 years less a day. The penalty increases for quantities in excess of that amount: R. v. Kassa , [2006] O.J. No. 5489 (S.C.J.) .

The Principle in Kienapple [ 37 ] Ms. Crevier submits that based on her conviction for possession of a loaded restricted firearm under s. 95 of the Code , her conviction for possessing a restricted firearm knowing she was not the holder of a licence or registration certificate under s. 92 should be stayed in accordance with the principal in Keinapple .

[38] The principle in Kienapple, also referred to as the rule against multiple convictions, provides that where anaccused is found guilty of two or more offences arising out of the same transaction and the elements of the offences are substantially thesame, the accused should only be convicted of the most serious of the offences. The remaining charges should be stayed: R. v. Provo(1989), (SCC), 49 C.C.C. (3d) 417, [1989] 2 S.C.R. 3 (S.C.C.). In order for the principal to apply, there has to be both afactual and a legal nexus between the offences: R. v.

Prince, (1986), (SCC), 30 C.C.C. (3d) 35, [1986] 2 S.C.R. 480. Thefactual nexus is established where the charges arise out of the same transaction. The legal nexus is established where the offencesconstitute a single wrong or delict. [39] In my view, the factual nexus in this case between the two gun possession charges is clear. It is Ms. Crevier’spossession of the gun in the night table drawer in apartment 704 that is the basis for the gun possession charges.

The same indicia ofknowledge and control underlie each of the charges. [40] The focus of the inquiry in respect of the legal nexus is whether the offences involve different wrongs or thesame wrong committed in different ways. In R. v. R.K. (2005), (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), Doherty,J.A., discussed the legal nexus issue at para. 37 and 38 as follows: 37 In Prince at pp. 49-51, Dickson C.J.C. provided guidance as to the situations in which there will be a sufficient legal nexus to justifythe application of the Kienapple rule.

He described three categories of cases where the legal nexus between offences will be established.I need not repeat those categories here. In essence, each presents a situation in which the offences charged do not describe differentcriminal wrongs, but instead describe different ways of committing the same criminal wrong. 38 Dickson C.J.C. in Prince at pp. 51-54 further elucidated the legal nexus inquiry by referring to three factors that will defeat anyclaim that different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bearrepeating in these reasons.

First, where the offences are designed to protect different societal interests, convictions for both offences willnot offend the Kienapple rule. Second, where the offences allege personal violence against different victims, Kienapple will not forecloseconvictions for offences relating to each victim. Third, where the offences proscribe different consequences, the Kienapple rule will notbar multiple convictions. [41] In R.K., Doherty J.A. goes on to point out at paragraph 40 that the Kienapple rule can be overridden byParliament. 40 One final and important point must be made in outlining the Kienapple rule.

It is subject to the dictates of Parliament. If a statutoryprovision expressly or by clear implication provides for multiple convictions for offences arising out of the same delict, the court mustgive effect to the legislative intention subject to a successful Charter challenge: Kienapple at p. 540; R. v. McGuigan (1982), (SCC), 66 C.C.C. (2d) 97 at 123-24, [1982] 1 S.C.R. 284 (S.C.C.); Prince at pp. 48-49. The post-Charter jurisprudenceestablishes that multiple convictions for offences arising out of the same delict is not a per se violation of the Charter: R. v.

Krug (1985), (SCC), 21 C.C.C. (3d) 193 at 202-203, [1985] 2 S.C.R. 255 (S.C.C.); R. v. Brown (1994), (SCC), 93C.C.C. (3d) 97, [1994] 3 S.C.R. 749 (S.C.C.).

The constitutionality of a provision overriding the Kienapple rule will depend on thespecifics of that provision and its application to a particular fact situation. [42] In my view, while the offences for possession of a loaded restricted firearm, without a licence and a registrationcertificate (s. 95(1)) and possession of a restricted firearm knowing one does not have a licence and a registration certificate (s. 92(1))contain different elements, they essentially describe different ways of committing the same offence, which is possession of a prohibitedor restricted firearm.

Nor do the offences in question protect different societal interests, protect different victims or prohibit differentconsequences. [43] The real issue is whether, having regard to the penalty provisions of s. 92, has Parliament “expressly or byclear implication” abrogated the Keinapple rule.

Section 92(3) which is the penalty provision for an offence under s. 92(1), provides fora maximum penalty of 10 years imprisonment on the first offence, a minimum of one year and a maximum of 10 on a second offence anda minimum of two years less a day and a maximum of 10 years on the third offence. [44] There is no question that by providing for minimum sentences for second and third offences under s.92,Parliament is expressing a strong concern regarding the proliferation of guns and gun violence in our society and seeking to deter suchconduct. [45] In light of the penalty provisions in s. 92, in my view the application of the Keinapple principle to a convictionunder s.92 would serve to defeat Parliament’s clear purpose of deterrence as reflected by the sentencing provisions of that section.

To putit another way, if Ms. Crevier’s s. 92 conviction is stayed and she is subsequently convicted of another s. 92 offence, because the firstcharge was stayed, the minimum sentence for the second offence would not be applicable given the stay of the first conviction. [46] I am therefore not prepared to stay the conviction under s.92 pursuant to Keinapple. Consecutive vs.

Concurrent [47] The Crown submits that the sentences for the conviction on Count 5, possession of a prohibited device withouta license to possess it and Count 6, possession of cocaine for the purpose of trafficking should each be consecutive to the sentence forpossession of the loaded restricted firearm. Ms. Crevier submits that they both should be concurrent. [48] The general rule is that different offences that arise out of the same behaviour normally receive concurrent sentences.

Consecutive sentences, on the other hand, are normally imposed where there is some separation among the offences in time or they constitute different legally protected interests: R. v. Houle , 2008 ONCA 287 , [2008] O.J. No. 1412 (C.A.). [ 49 ] The offences in this case all arose out of the execution of the search warrant on February 6, 2012. Further, I am of the view that the gun offences all relate to the same legally protected interest. Because the magazine is part of the handgun, I am of the view that the sentence for that should be concurrent.

On the other hand, the gun offences and the drug offences, specifically possession for the purpose of trafficking, have different legally protected interests. In my view, the sentence for possession for the purpose of trafficking should be consecutive to the sentence for the gun offences. See: R. v. Lambert , [2011] O.J. No. 3389 (S.C.J.) at para. 63 . Aggravating Factors [ 50 ] There are many aggravating factors in respect of the offences here. As already noted, the possession of the loaded handgun is very serious.

The defence submits that the possession of the gun in this case is not as serious as the cases cited by the Crown of Danvers and Brown where the accused carried a loaded gun in public. While I agree that carrying a loaded gun in public is extremely dangerous, I consider possession of a loaded gun in one’s bedroom, in close proximity and readily accessible to be also very dangerous and aggravating. The location of the gun and the fact that it was loaded leads to the presumption that Ms.

Crevier was prepared to use it if required. [ 51 ] A further aggravating factor is that the gun contained a magazine which held 15 rounds which makes it an over capacity magazine. [ 52 ] At the time of these offences, Ms. Crevier was subject to a s. 109 order arising out of her conviction for trafficking in a

Schedule 1 substance in 2008. The defence submits that the Crown has failed to prove the s. 109 order because, although filed as an Exhibit on the sentencing, the Crown did not provide sufficient notice. It is clear from Ms. Crevier’s criminal record that the s. 109 order was issued. Ms. Crevier has not taken issue with her record.

In my view, that is sufficient to establish the s. 109 order and I consider her possession of a loaded restricted firearm while subject to a s.109 prohibition order to be a further aggravating factor. [ 53 ] The Crown submits that the fact that the firearm had the Atlanta Police Department engraved on the side of it along with the badge number of the officer to whom it belonged is an aggravating factor. In support of its position, the Crown filed the affidavit of a retired Atlanta Police officer. [ 54 ] In my view, the affidavit fails to establish that the affiant owned the gun in question in this case.

In particular, there is nothing in the affidavit to tie the gun in this case to the affiant. As a result, I am not prepared to find that the gun in question was a police officer’s gun. Simply marking Atlanta Police Department on the side of it does not establish the fact. [ 55 ] It is clear that Ms. Crevier was engaged in a commercial drug operation of some size involving cocaine which is an addictive and insidious drug. [ 56 ] The matter is made more aggravating by the fact that a loaded handgun was associated with Ms. Crevier’s drug business.

The possession of drugs for the purpose of trafficking in combination with a gun is a serious aggravating factor: R. v. Wong , 2012 ONCA 767 at para. 13 , Manning at para. 16. [ 57 ] The defence argues that using the drug offence as an aggravating factor in respect of the gun offences while at the same time sentencing Ms. Crevier for the drug offences is in effect double dipping or double punishment. I disagree. The fact that drugs were present in conjunction with the firearm is an aggravating factor. I do not consider that there is double counting. As pointed out by Nordheimer J. in R. v. Lucas , [2010] O.J.

No. 3300 (S.C.J.) at para. 31 in rejecting a similar argument: “The simple point is that the possession of a firearm, while dangerous in and of itself, is all the more so when it is combined with the related possession of illicit drugs.” [ 58 ] Ms. Crevier’s criminal record is also aggravating. As the Crown submits, she does not come before the court as a first time offender. She has multiple prior drug convictions, including two convictions for trafficking in a

Schedule I substance. More concerning is the evidence in this case which indicates rather than learning from her past digressions, Ms. Crevier has upped her game so to speak and increased the level of sophistication of her drug business. She was residing in an apartment leased in someone else’s name while maintaining another address. She was manufacturing and packaging crack for sale in the apartment. She had large sums of cash while at the same time receiving government assistance. She owned a Jeep Cherokee but was arrested driving a van.

All of these factors in my view add to the seriousness of the offences here. Mitigating Factors [ 59 ] Regrettably, there are few mitigating factors present in this case. Foremost amongst them is Ms. Crevier’s age. She is still relatively young. She has expressed remorse and indicated to the court that she has seen the error of her ways. I would very much like to believe that. My concern is that she has received multiple warnings in the past to change her ways, both as a youth and as an adult, and has failed to heed any of them. [ 60 ] The letter from Elizabeth Fry talks about Ms.

Crevier’s motivation to better herself. That is in sharp contrast, however, to her actions in relation to the offences which are before the court. Notwithstanding, I feel that, given her age and the experience of these offences, that she can turn her life around and become a productive member of society if she wants. The Jump Factor [ 61 ] The defence raises the jump factor and submits that it is applicable here in support of the submission for a sentence in the range proposed on Ms. Crevier’s behalf. The jump factor provides that an offender should not receive too large an

increase in a subsequent sentence over a prior one. In this case, the longest sentence that Ms. Crevier has spent in jail for previousoffences is approximately 4 months made up of essentially pre-sentence custody. [62] In my view, the jump factor is not applicable here. Ms. Crevier’s actions give rise to multiple serious offencesrequiring significant punishment.

To sentence her to the time suggested by the defence would be contrary, in my view to the sentencingobjectives which are engaged in this case. [63] In J.G. at para. 45, Nordheimer J. notes that there is some authority that suggests that the jump factor onlyapplies where rehabilitation is a significant sentencing factor. In this case, while I have acknowledged rehabilitation as a factor, I do notconsider it a significant factor given Ms. Crevier’s past record. Pre-Sentence Custody [64] Ms.

Crevier was granted bail after her arrest on the charges but surrendered herself into custody three weekslater and has remained in custody ever since, which is a period of approximately 14 ½ months. The defence submits given that as a resultof her detention, Ms. Crevier has suffered a loss of remission and parole eligibility, she should receive credit for pre-sentence custody ona ratio of 1.5:1. The Crown submits that, in the absence of any evidence to justify an increase, the credit should be on a 1:1 basis. Bothparties rely on s. 719(3.1) of the Code. [65] In the recent decision of R. v.

Summers, 2013 ONCA 147 , [2013] O.J. No. 1068 (C.A.) the court heldthat s.719 (3.1) of the Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding 1.5:1 for each dayspent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and justsanction in accordance with the statutory scheme for sentencing and punishment set out in the Code.

The court further noted, atparagraph 8, that “on a proper record” ineligibility for remission and parole while in remand custody may justify enhanced credit. [66] Like Summers, there is minimal evidence and information before me bearing on Ms. Crevier’s prospects forremission or parole eligibility. Unlike Summers, however, the Crown here does not acknowledge that Ms. Crevier should receive a creditof 1.5:1 for her pre-sentence custody. [67] Summers is clear that the enhanced credit is not automatic for lost earned remission and parole eligibility.

Asnoted at para. 117 of the reasons, there must be some basis in the evidence or the information before the sentencing judge to support theconclusion that the absence of earned remission and parole eligibility merits the enhanced credit. [68] Is the information sufficient to exercise the discretion given to me by s.719 (3.1) to increase the credit to 1.5:1?The defence submits that based on Ms. Crevier’s 5 year gap in her record along with the information from Elizabeth Fry that she ismotivated to better herself, there is no reason to believe Ms. Crevier would not be entitled to earned remission and early parole.

In myview, that information, coupled with Ms. Crevier’s age and the fact that there is no evidence of any issues during her period in custodyare sufficient to enable me to exercise my discretion to apply the enhanced credit. Conclusion [69] Ms. Crevier, would you please stand. You have been convicted of a number of very serious offences includingpossession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking.

For the above reasons, after consideringthe totality principle, I sentence you to a global sentence for these offences of 6 years in the penitentiary, comprised of the following: 1. On Count 1, possession of a loaded restricted firearm not being the holder of a licence or registration certificate, 4 years; 2. On Count 2, possession of a firearm knowing you were not the holder of a licence and registration certificate, 1.5 yearsconcurrent; 3. Count 3, possession of a firearm without being the holder of a licence and a registration certificate is stayed in accordancewith the principal in Keinapple; 4.

Count 5, possession of a prohibited device without being the holder of a licence, 6 months, concurrent; 5. Count 7, possession of cocaine for the purpose of trafficking, 2 years consecutive; 6. Count 6, possession of proceeds of crime exceeding $5,000, 6 months concurrent; and 7.

Count 8, possession of marijuana, 10 days concurrent. [70] After applying a credit of 21 ¼ months for pre-sentence custody (1.5 x 14 ½), the time remaining to serve is 4years, 2 ¾ months. [71] In addition, there will be a s. 109 order for life and a DNA order. [72] The Crown has requested a forfeiture order providing that the gun and ammunition shall forfeited to HerMajesty the Queen in Right of the Province of Ontario to be returned to the lawful owner who is named. As noted, I am not satisfied thatthe material filed establishes that the person named in the draft order is the owner of the gun.

Accordingly I have deleted the person’sname from the order. It will be up to the Crown to determine what to do with the gun. I have amended the order in that regard and signedit.

L. A. PATTILLO J. Released: May 17, 2013 CITATION : R. v. Crevier, 2013 ONSC 2630 Court File No.: 13-70000155-0000 DATE: 20130517 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JESSICA CREVIER REASONS FOR SENTENCE L. A. PATTILLO J. Released: May 17, 2013