R. v. Scarlett, 2013 ONSC 562

CITATION: R. v. Scarlett , 2013 ONSC 562 COURT FILE NO.: 11-9/653 DATE: 20130125 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - RICARDO SCARLETT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Kelly Beale , for the Crown Richard Federowicz , for Ricardo Scarlett ) ) HEARD: December 10–11, 2012 G.R. Strathy J. [ 1 ] Ricardo Scarlett was convicted on November 2, 2012 of possession of a loaded prohibited firearm contrary to section 95(1) of the Criminal Code . He now appears for sentencing. [ 2 ] Subsection 95(2)(a)(

i) of the Code provides for a mandatory minimum penalty of three years imprisonment for a first offence. The accused submits that the minimum penalty has been declared inconsistent with the Charter of Rights and Freedoms and is of no force and effect by the declaratory judgment of Molloy J. in R. v. Smickle , 2012 ONSC 602 , 110 O.R. (3d) 25. For the reasons set out below, I accept that submission, but I have concluded that three years imprisonment is the appropriate sentence in this case.

The Circumstances of the Offence [ 3 ] On February 17, 2009, the Drug Squad executed a search warrant at 2015 Davenport Road, Toronto. On entering the premises, they saw Mr. Scarlett in the hallway facing them. He turned and ran down the hallway clutching his waist. Two police officers chased him into a bedroom, where he was brought to the ground and handcuffed. A .38 calibre handgun, wrapped in a bandana, was found tucked inside his pants. It was loaded with six bullets. The serial number had been obliterated. [ 4 ] A total of 3.9 grams of crack cocaine was found in the premises.

Some was in plain view and some was concealed inside a stereo. [ 5 ] The Information to Obtain the search warrant stated that Mr. Scarlett was a subject of an investigation into trafficking in crack cocaine from the premises. A police officer testified that during that investigation he purchased crack cocaine at the premises. He identified Mr. Scarlett as the seller. He could not specify the amount of crack that he purchased, but said that he spent $100. Purchases were made from another individual at the premises on two other occasions. [ 6 ] The officer was not cross-examined concerning his identification of Mr.

Scarlett or his evidence that he had bought cocaine from him. The evidence satisfies me, beyond a reasonable doubt, that Mr. Scarlett’s possession of the handgun was associated with the trafficking in cocaine from the premises. The Circumstances of the Offender [ 7 ] Mr. Scarlett is 26 years old. He was 22 at the time of the offence. He came to Canada from Jamaica when he was eight years old. He and his seven siblings were raised by his mother. He is estranged from his father. He now lives with his mother, a sister and a brother. An older brother passed away in violent circumstances five years ago.

He graduated from an adult high school in Toronto. He hopes to pursue some educational upgrading, but his counsel says that he has been unable to do so due to this pending charge. He has been employed in a clothing store, but lost his job recently when the store closed. His counsel describes him as intelligent, thoughtful and bright, with a positive outlook on life. He has permanent resident status in Canada and a sentence of more than two years less a day could impact that status. He has no prior convictions. No specific evidence was put before me concerning Mr. Scarlett’s prospects for rehabilitation. [ 8 ] Mr.

Scarlett was arrested on February 17, 2009 and was in custody until March 3, 2009. When he was initially released on bail, he was subject to house arrest, but was permitted to leave the house for work purposes or in the company of his surety. On March 16, 2010, a 10:30 curfew was substituted for the house arrest. Mr. Scarlett has complied with the terms of his bail. Sentencing Principles [ 9 ]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing sanctions that have one or more of the following objectives: (

a) denunciation of unlawful conduct; (

b) specific and general deterrence; (

c) separation of offenders from society; (

d) assisting in rehabilitating offenders; (

e) providing reparation for victims or the community; (

f) promoting a sense of responsibility in offenders and acknowledgment of harm done to victims and the community. [ 10 ]

Section 718.1 expresses the fundamental principle that a sentence must be proportionate to the gravity of the offence and the

degree of responsibility of the offender. [11]

Section 718.2 expresses other important sentencing principles that the court may take into account, depending on thecircumstances, including, as applicable to this case: (

a) any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) the requirement that a sentence should be similar to sentences imposed on similar offenders for similar offences in similarcircumstances; (

c) the requirement that an offender should not be deprived of liberty if less restrictive sanctions may be available in the circumstances. [12] As I have noted earlier, Parliament has stated that the minimum sentence for this offence, when it is prosecuted by indictment, isthree years. When the offence is prosecuted summarily, the maximum penalty is imprisonment for one year.

There is therefore nojurisdiction to impose a term of between one and three years, absent a finding that the provision is unconstitutional. [13] The Courts in this jurisdiction have frequently observed that sentences for firearms offences must reflect the sentencing goals ofdenunciation, deterrence and protection of the public. As stated by Armstrong J.A. in R. v. Danvers, (ON CA),[2005] O.J.

No. 3532, 199 C.C.C. (3d) 490 at para. 78, “[o]ur courts have to address the principles of denunciation and deterrence forgun related crimes in the strongest possible terms.” Our courts have also noted that this concern is particularly acute in the MetropolitanToronto region, where there is substantial, and justifiable, concern about the prevalence of firearm-related crime: see R. v.

Brown, 2009ONCA 563, 251 O.A.C. 264 at para. 33. [14] That concern is intensified in cases where the crime involves a loaded firearm, as there is a reasonable inference that someonewho carries a loaded firearm does so with the expectation that it may be used. Position of the Crown and the Defence [15] The Crown submits that s. 95(2)(a)(

i) is constitutionally valid, that there is a three-year minimum sentence for the offence, andthat a four year prison term is appropriate in the circumstances of this case. [16] The Crown points to the following aggravating factors: ➢ the immediate accessibility of the weapon, on the accused’s person: see R. v. C.W., 2007 ONCJ 587, [2007] O.J. No. 4929; ➢ the flight of the accused, with the weapon tucked into his pants, creating serious risk both to him and to the police officers in pursuit; ➢ the fact that the serial number of the gun had been defaced: see R. v. Lawes, 2007 ONCA 10, [2007] O.J.

No. 50 at para. 10; ➢ the evidence of criminal drug activity in and from the premises and the reasonable inference that the presence of the weapon wasincidental to that activity, a notoriously dangerous combination: see R. v. Grant, (ON CA), [2006] O.J. No. 2179, 81O.R. (3d) 1 (C.A.); R. v. Dass, [2008] O.J. No. 1161 (S.C.J.) at para. 18; R. v. Williams, [2007] O.J. No. 1354 (S.C.J.) at para. 34;Smickle at para. 60. [17] On the mitigating factors, Mr. Fedorowicz submits that Mr. Scarlett is a youthful first offender with a supportive family, that hehas complied with strict bail terms and has not re-offended.

He says that these circumstances auger well for his prospects ofrehabilitation. He submits that, in the circumstances of this case, a reformatory term of between 12 and 18 months would be appropriate. The Smickle Decision [18] Smickle was 27 years old. He had no prior record. He was alone in his cousin’s apartment and posed with a loaded handgun for aphotograph that he posted to his Facebook page. Coincidentally, the police were waiting outside the apartment to execute a searchwarrant for firearms.

When they broke open the door, they found Smickle with the gun in one hand and his laptop computer in the other.He dropped both when ordered to do so. The gun was cocked and there was a bullet in the chamber. He was convicted of possession of aloaded prohibited firearm and of careless storage of the handgun. [19] Molloy J. found that the gun had likely been found by Smickle in the apartment and was used as a “prop” for the photograph hetook, to portray himself as “cool”. [20] Smickle had been working at the time of his arrest and was completing his high school diploma.

He was in a serious relationshipand was engaged to be married. There was a positive pre-sentence report indicating that he would be a suitable candidate for communitysupervision. [21] Molloy J. found that, absent the statutory minimum, the appropriate sentence was one year, to be served in the community as aconditional sentence. [22] She found that the mandatory three-year minimum sentence would be “grossly disproportionate” in the circumstances and

constituted cruel and unusual punishment in violation of s. 12 of the Charter. She found that the hybrid scheme of the legislation, whichprovides for very different sentences depending on whether the Crown proceeds summarily or by indictment, was arbitrary and breacheds. 7 of the Charter and could not be saved under s. 1 of the Charter. She granted a declaration that “the reference to a minimumpunishment of imprisonment for a term of, ‘in the case of a first offence, three years’ as set out in s. 95(2)(a)(

i) of the Criminal Code isinconsistent with the Charter and of no force or effect”: Smickle at para. 162. [23] Molloy J. concluded that she was not at liberty to confine her decision to the particular case before her pursuant to s. 24(1) of theCharter. She considered herself bound by R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 to grant a declaration under s. 52 of theConstitution Act that the legislation is of no force and effect. [24] Molloy J. was well aware that her decision would invalidate the provision and would apply to all future proceedings.

In rejectingthe Crown’s submission that the declaration of constitutionality should be suspended, she stated at para. 151: The underlying offence will still exist and the same maximum penalty will apply for those convicted of it. There is therefore no dangerto the public or interference with the rule of law. Judges will simply sentence individuals convicted of this offence in accordance with thesentencing principles set out in the Criminal Code and judicial precedent.

However, if a suspension is ordered, there is a real risk thatindividuals will be subjected to the arbitrariness of the scheme and/or cruel and unusual punishment during the period of suspension.That is inconsistent with Charter values and with the principles established in Schacter [ (SCC), [1992] 2 S.C.R. 679].Accordingly, in my view, it is not appropriate to suspend the operation of my ruling. The declaration of invalidity shall have immediateeffect. [Emphasis added]. [25] Molloy J. made extensive reference to the decision of Code J., just over six months earlier, in R. v. Nur, 2011 ONSC 4874,[2011] O.J.

No. 3878. Nur, who was 19 years old at the time of the offence, had pleaded guilty to possession of a loaded prohibitedfirearm — a semi-automatic handgun with an oversized magazine and a bullet in the chamber. He was outside a community centre withother youths when the centre was locked down because someone inside had told staff that he was afraid of someone outside. When thepolice arrived, Nur and the other youths dispersed. An officer chasing Nur saw him discard the weapon in a parking lot. [26] There were a number of circumstances in Nur’s favour.

He was in high school and applying for university when the charges werelaid. He had “glowing” reference letters from his teachers and employer. There was evidence that the family was supportive. He and hisfamily were permanent residents, having come to Canada from Somalia in 1996. Accordingly, he faced a deportation order based on“serious criminality” and on the minimum three-year sentence mandated by the Criminal Code.

He had been in custody for a total of 26months prior to final submissions, 16 of which were attributable exclusively to the weapons charge. [27] Code J. undertook an extensive analysis of the range of sentences for convictions of a first offence of possession of a loadedhandgun, where there were no additional convictions (such as for drug trafficking), for the period of 1998 to 2008. He concluded that therange was between two years less a day and three years imprisonment.

He observed, at para. 44, that “the bottom end of the above rangewas generally reserved for youthful first offenders with good rehabilitative prospects who plead guilty, and the higher end of the rangewas generally reserved for offenders with prior records who proceed to trial.” He noted that Nur, as a young first offender who pleadedguilty, and who appeared to have potential for rehabilitation, should be kept out of a federal penitentiary as long as the appropriate rangepermitted that sentence.

He also noted that a sentence of less than two years would give him access to a full appellate deportation hearingwhere he could raise humanitarian and compassionate grounds in relation to any deportation order resulting from his conviction. [28] Code J. stated that, prior to the introduction of the mandatory three-year minimum sentence in 2008, he would have concludedthat two and a half years imprisonment was a fit sentence for the offence and the offender. He took into account the fact that Nur was ayoung first offender, with strong family support and rehabilitative potential.

He also took into account the extensive case law concerningthe need for exemplary or denunciatory sentences due to the danger to the public arising from the proliferation of loaded handguns andgun violence, particularly in Toronto.

The aggravating factors included being in possession of a loaded handgun outside a communitycentre, acting as part of a group in a threatening manner that caused the staff to lock down the premises, fleeing from police, throwingthe gun away in a public parking area, and the use of an oversized magazine with the weapon. [29] On the particular facts before him, Code J. was unable to conclude that the mandatory minimum sentence of three years was“grossly disproportionate” to the sentence that would otherwise be imposed or that it would “outrage standards of decency.” He alsoconcluded that any reasonable hypothetical circumstances posited by the accused were answered by the discretion available to the Crownto proceed summarily.

He therefore concluded that there was no breach of s. 12 of the Charter. He noted that there was no attack, in thecase before him, on the reasonableness of the Crown’s election to proceed by indictment.

He noted, prophetically in light of Smickle, thatthe issue would be likely to arise if and when the Crown elected to proceed by indictment in circumstances that were unreasonable. [30] Code J. then dealt with the issue of the two-year sentencing gap between cases where the Crown elects to proceed summarily(with a maximum one-year sentence for the offence) and cases where the Crown proceeds by indictment (with a mandatory minimumthree-year sentence), leaving no possibility for a sentence of between one and three years.

In effect, a person’s sentence, on exactly thesame facts, falls to be determined based on the non-reviewable discretion of the Crown in deciding whether to proceed summarily or byindictment. It was alleged that this contravened s. 7 of the Charter. Code J. concluded that this challenge had merit, but that Nur had nostanding to raise it, because he was not a member of the “small group of other accused, namely, those who would be eligible for asentence of between one and three years on a reasonable and fair

summary election by the Crown, but who are not so eligible on aCrown election to proceed by indictment” (para. 133). [31] In sentencing Nur, Code J. concluded that the three-year mandatory minimum sentence, which remained intact in light of hisdecision, was not the “standard” sentence, but was in fact the “inflationary floor” (para. 145). He noted the previous decision of R. v.Dene, [2010] O.J. No. 5192 (S.C.J.), in which a sentence of four years was imposed for a first s. 95 offence, where the 21-year-oldaccused had a prior conviction for trafficking cocaine. On appeal, the Court of Appeal in R. v.

Dene, 2010 ONCA 796, [2010] O.J. No.5012 observed that the sentence was at the high end. Code J. described it as “a new high water mark” (para. 147). He concluded thatbecause of the aggregating factors in the case before him, Nur should receive a sentence greater than a minimum, and he put this at 40months.

Effect of Smickle on this Case [32] Although perhaps unnecessary, as I conclude in the analysis below that a sentence of three years would be appropriate in thiscase, I will explain why this is imposed not as the statutory minimum but rather as an appropriate sentence in the absence of a statutoryminimum. Had the mandatory minimum sentence not been struck down, I would likely have imposed a sentence somewhat greater thanthree years, given the aggravating circumstances present in this case, for the same reasons as Code J. in Nur. [33] The purport and effect of Smickle is to declare the minimum sentence for possession of a loaded prohibited weapon in s. 95(2)(a)(

i) of the Criminal Code to be null and void and of no effect, not only in that case but in all future cases. That was the conclusion reachedby my colleague Frank J. in obiter in R. v. Williams (18 April 2012), Toronto (S.C.J.), in which the accused was convicted of possessionof a loaded prohibited firearm and related offences. Frank J. concluded that a proper sentence in that case was in excess of three years,and it was unnecessary to consider the effect of Smickle.

She stated, however: But, had I been required to decide that issue, I would have had no hesitation in finding that the declaration of invalidity [in Smickle]applies. In my view, the answer to the question has been clear since the Supreme Court of Canada decision in R. v. Ferguson, [2008] 1S.C.R. 96, 2008 SCC 6. The declaration of invalidity of s. 95(2) was made pursuant to s. 52(1) of the Constitution Act. The

section istherefore null and void, not just in the specific case, but for all purposes. But, a full analysis and decision on that issue must be left foranother case. [34] The jurisdiction exercised by Molloy J. was pursuant to s. 52(1) of the Constitution Act, which provides that: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, tothe extent of the inconsistency, of no force or effect. [35] The appropriate remedy pursuant to this jurisdiction is a declaration of invalidity.

The effect of the declaration is not, of course,to actually delete the provision from the statute. Rather, it renders it of no force and effect to the extent of its inconsistency with theConstitution: see R. v. Turmel, (ON CA), [2003] O.J. No. 3877, 177 C.C.C. 533 (C.A.) at para. 5; R. v. J.P., (ON CA), [2003] O.J. No. 3876, 177 C.C.C. (3d) 522 (C.A.). [36] Where legislation is declared unconstitutional, the declaration applies not merely to the parties immediately before the court, butto the whole world.

Lazar Sarna makes this point in The Law of Declaratory Judgments, 3rd ed. (Toronto: Thomson Canada, 2007) at p.139: [T]he Charter declaratory remedy declaring a statute invalid has effect erga omnes [toward everyone]. The invalidation of a statute ergaomnes creates a legal vacuum, which urgently calls for the legislature and the administrative agencies involved to amend enablingstatutes and alter organizational structures. [37] This is why, in some cases, the declaration of invalidity is suspended for a period of time to permit Parliament or the legislatureto address the issue: see e.g. Bedford v.

Canada (Attorney General), 2012 ONCA 186, 109 O.R. (3d) 1. [38] It is clear from the reasons of Molloy J. in Smickle that she was declaring s. 95(2)(a)(

i) of the Criminal Code “of no force andeffect” — she stated at para. 162: A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, “in the case of a first offence, threeyears” as set out in s. 95(2)(a)(

i) of the Criminal Code is inconsistent with the Charter and of no force or effect. [39] It would have been unnecessary to grant this remedy if the decision was only confined to the facts before Molloy J. [40] It is also clear that in considering whether the effect of the declaration should be suspended, Molloy J. concluded that in theabsence of a suspension the declaration would be applicable to all other cases. She stated, at para. 151: I see no reason why this decision should not take effect immediately. In Schachter v.

Canada, the Supreme Court considered theappropriateness of suspending a declaration of constitutional invalidity of impugned legislation. Lamer C.J.C. noted, at p. 716, that todelay the declaration “is a serious matter.” A suspended declaration allows for a Charter-violating state of affairs to persist.

LamerC.J.C. provided guidelines as to when a suspension will be warranted: A. striking down the legislation without enacting something in its place would pose a danger to the public; B. striking down the legislation without enacting something in its place would threaten the rule of law; or, C. the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down thelegislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rightshave been violated.

None of these factors support a suspension of the finding of invalidity. The underlying offence will still exist and the same maximumpenalty will apply for those convicted of it. There is therefore no danger to the public or interference with the rule of law. Judges willsimply sentence individuals convicted of this offence in accordance with the sentencing principles set out in the Criminal Code andjudicial precedent. However, if a suspension is ordered, there is a real risk that individuals will be subjected to the arbitrariness of thescheme and/or cruel and unusual punishment during the period of suspension.

That is inconsistent with Charter values and with theprinciples established in Schacter. Accordingly, in my view, it is not appropriate to suspend the operation of my ruling. The declarationof invalidity shall have immediate effect. [Emphasis added.] [41] In both Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 31, and R. v.Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at para. 65, the Supreme Court of Canada observed that a declaration of invalidity establishes

the invalidity of a legislative provision for all future cases.

In Ferguson, Chief Justice McLachlin, giving the judgment of the court,observed at para. 65 that the effect of a declaration of invalidity is not simply to make the law inapplicable to the case at hand, but tomake the law null and void and to put the issue back to Parliament for resolution: The presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the Charter that unconstitutional laws aredeprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne,per Wilson J.

In cases where the requirements for severance or reading in are met, it may be possible to remedy the inconsistencyjudicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible -- as in the case of anunconstitutional mandatory minimum sentence -- the unconstitutional provision must be struck down. The ball is thrown back intoParliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects.

In either case, theremedy is a s. 52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extentthat the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void, and is effectivelyremoved from the statute books. [42] McLachlin C.J.C. expressly rejected the notion that, after a declaration of invalidity in one case, the courts should continue toconsider the issue on a case-by-case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or herparticular case.

She noted, at paras. 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning theprecise scope of the law. It would also lead to uneven and unequal application of the law. [43] The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogentreasons to depart from them: see Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. NorthernElectric Co. Ltd., (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from adecision, referred to in Hansard Spruce Mills, include (

a) that the validity of the judgment has been affected by subsequent decisions; (b)that the judge overlooked some binding case law or a relevant statute; or (

c) that the decision was otherwise made without fullconsideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge issatisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong. [44] In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason forjudicial restraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson.

To create ajudicial exemption, based on the facts of the particular case before me, would create uncertainty and unfairness. This is particularly sobecause an appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month. Range of Sentences [45] Counsel for Mr. Scarlett refers to R. v. Grant. In that case, the accused, who was 18 years old at the time of his arrest, was foundin possession of a loaded prohibited firearm and marijuana, in the middle of a day, on a street, near high schools that were experiencingproblems with violence.

He was convicted of possession of a loaded prohibited firearm, possession of a firearm for the purpose oftransferring it, carrying a concealed weapon, and possession of a firearm with knowledge that its serial number had been removed. Hewas sentenced to terms of 12 months concurrent on each count, followed by three years probation. The sentence was in addition to sixmonths credit given for pre-trial custody. In effect, therefore, the sentence was 18 months, which was in excess of the statutory one-yearminimum that existed at that time. The Court of Appeal dismissed the appeal from sentence. [46] Counsel for Mr.

Scarlett also refers to: ➢ R. v. Canepa, 2011 ONSC 1406, [2011] O.J. No. 924: 12 month conditional sentence to be served in the community for conviction ofpossession of a firearm knowing that possession was not authorized; ➢ R. v. Williams, 2011 ONSC 3914, [2011] O.J. No. 3352: one-year minimum sentence imposed for conviction of possession of aloaded firearm and ammunition, carrying a concealed weapon and careless use of a firearm (the offence occurred when the one-yearminimum sentence provision was in effect); ➢ R. v. Brown, [2006] O.J.

No. 4681 (S.C.J.): the accused pleaded guilty to possession of a loaded prohibited weapon, carrying aconcealed weapon, possession of a firearm obtained by crime and possession of marijuana. The Court accepted a joint submission of 15months, which was regarded as being lenient and outside the usual range in the circumstances; and ➢ R. v. Newman, [2003] O.J. No. 5574 (S.C.J.): the accused pleaded guilty to possession of a loaded firearm, possession of a firearmwith the serial number defaced and possession of a firearm while prohibited.

The Court accepted a joint submission of 18 months giventhe accused’s guilty plea, his record, his efforts to improve himself in jail and his family support. A probationary term of three years wasimposed. [47] I have also considered, among other cases: ➢ R. v. Z.L.M., 2011 ONSC 4051, [2011] O.J. No. 3124: the accused was sentenced to three years for firearms offences includingpossession of a loaded firearm in conjunction with drug activity. He was a youthful offender with a previous criminal record but “a lot ofprospect…for…rehabilitation”; ➢ R. v. James, 2011 ONSC 241, [2011] O.J.

No. 385: possession of a loaded firearm. The accused ran from police onto a highway andthrew the gun into a dump truck. He had a serious criminal record including trafficking. Sentenced to 42 months;

➢ R. v. Morris , 2011 ONSC 5206 , [2011] O.J. No. 3995: sentence of 44 months on firearm charges. A loaded handgun was found in a secret compartment in the vehicle along with marijuana and crack cocaine. The accused had a criminal record for possession for the purpose of trafficking, theft under and assault; ➢ R. v. Velez-Lau , 2011 ONSC 4805 , [2011] O.J. No. 3710 : sentence of four years for possession of a loaded prohibited firearm (.38 calibre revolver), concurrent with other firearms offences. The accused was 24 years old with no prior record, he lived with his mother and had the support of family.

He also supported two children and expressed remorse, and had good prospects of rehabilitation; and ➢ R. v. Harutyunyan , 2012 ONSC 58 , [2012] O.J. No. 177: sentence of four years for possession of a loaded semi-automatic prohibited handgun. The weapon fell out of his pants while being arrested at the roadside. The accused was 25 years old with no criminal record, a positive employment record and the support of family. [ 48 ] All the cases turn on their own particular facts, including the fact that some involved guilty pleas and joint submissions, neither of which exist in this case.

Conclusion [ 49 ] I have concluded that a sentence of three (3) years imprisonment is necessary in order to accomplish the objectives of denunciation and deterrence of a very serious offence. Mr. Scarlett had in his possession, available for immediate use, a powerful, fully- loaded, deadly weapon. Its only purpose was to kill and maim. It is reasonable to infer, since he had it in his possession, that he was prepared to use it for that purpose. He put himself and the police officers at great risk when he ran from them with the gun tucked into his pants.

The fact that he possessed the handgun in association with drug trafficking on the premises is a serious aggravating factor. So is the fact that the serial number was defaced. The circumstances of this case are a far cry from Smickle and a denunciatory and deterrent sentence is required. [ 50 ] In crafting a sentence at the lower end of the range of sentences for this offence, I have taken into account Mr. Scarlett’s relatively young age, his clean record and his commendable behaviour while on bail.

This gives me some optimism concerning his prospects for rehabilitation. [ 51 ] There will be credit of four (4) months for Mr. Scarlett’s pre-trial custody and to reflect the period of house arrest and his restrictive bail terms thereafter.

He will therefore serve a sentence of two (2) years and eight (8) months. [ 52 ] There will also be a mandatory s. 109 weapons prohibition order in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and in respect of any other firearm for 10 years, and an order forfeiting the handgun and ammunition under s. 491(1) of the Criminal Code . [ 53 ] Given the nature and circumstances of the offence, and the absence of any evidence of an adverse impact on Mr.

Scarlett’s privacy or security of the person, it is in the interests of justice to make a DNA order under s. 487.051(2) of the Criminal Code and it is so ordered. ___________________________ G.R. Strathy J. Released: January 25, 2013 CITATION: R. v. Scarlett , 2013 ONSC 562 COURT FILE NO.: 11-9/653 DATE: 20130125

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - RICARDO SCARLETT REASONS FOR SENTENCE G.R. Strathy J. Released: January 25, 2013