)) HER MAJESTY THE QUEEN Applicant – v. –, 2013 ONSC 797

CITATION : R v TAP, 2013 ONSC 797 COURT FILE NO.: 11-70000824-0000 DATE: 20130305 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN Applicant – and – T.A.P. Defendant )) )) )) )) )) ) E. Haydon , for the Crown T. Ounapuu , for the Defendant HEARD: January 24, 2013 CROLL J. D E C I S I O N O N S E N T E N C E [ 1 ] On April 2, 2012, T.A.P. pled guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code , R.S.C. 1985, c. C-46, and to being in possession of a firearm knowing that the serial number on it has been altered, defaced or removed, contrary to s. 108(1) (

b) of the Criminal Code . These offences occurred on March 28, 2010. [ 2 ] When there is a conviction on indictment under s. 95(1) , s. 95(2) (a)(

i) of the Criminal Code provides for a mandatory minimum sentence of three years for a first offence. The Crown submits that this is the correct sentence for T.A.P.. [ 3 ] The defence submits that the sentence of three years is not appropriate on the facts of this case. It is the defence position that I am bound by the decision in R. v. Smickle , 2012 ONSC 602 , 110 O.R. (3d) 25, which held that the mandatory minimum sentence provided for in s. 95(2) (a)(

i) is inconsistent with the Canadian Charter of Rights and Freedoms and is of no force and effect. The defence submits that a conditional sentence should be imposed. (The defence did not submit a specific period for the sentence, however pursuant to s. 742.1 of the Criminal Code , conditional sentences are only available for sentences of less than two years.) [ 4 ] Given this background, it has been agreed that I should first determine the appropriate sentence for T.A.P. in the absence of any mandatory minimum. If it is three years or more, I will not consider the constitutionality of s. 95(2) (a)(i).

However, if I determine that the appropriate sentence is less than three years, I will consider the impact of the Smickle decision. Circumstances of the Offence [ 5 ] At around 12:29 a.m. on March 28, 2010, police officers were flagged down in the area of 90 Parma Court in the City of Toronto. They were advised of a violent domestic occurrence in apartment 702, where T.A.P. resided. The officers attended the seventh floor hallway to find T.A.P., upset and aggressive. She had been drinking.

T.A.P. advised the officers that her daughter was in the apartment with P.S., and that there were three other children sleeping in the apartment. [ 6 ] The officers entered the apartment and found T.A.P.’s daughter crying in the living room. She told officers that P.S. had threatened her and that he was in the back bedroom with two dogs. The officers called P.S. out of the back bedroom and arrested him. [ 7 ] While outside of the apartment, P.S. advised the arresting officers that there was a gun hidden in a chair in T.A.P.’s bedroom.

The officers entered the bedroom and found a silver, pearl-handled snub nosed Smith & Wesson, 38 Special six shot revolver between the cushion and the side of the chair. This firearm has a barrel length of less than 105 mm, making it a prohibited firearm. The gun was loaded with two live .38 rounds in the chamber and the serial number on the gun had been filed off. Neither P.S. nor T.A.P. had a firearms license or authorization to possess a firearm. Circumstances of the Offender

[ 8 ] T.A.P. is 44 years old and has a grade 10 education. She has never held any employment position and is currently supported by Ontario Works. [ 9 ] T.A.P.’s parents separated after two years of marriage. She and a number of her cousins were raised in the Lindsay area by their grandparents. In 1983, at the age of 15, T.A.P. had her first daughter, M.. Soon after, she and M. moved to Toronto to live with T.A.P.’s mother, who had three other children from a subsequent relationship. The pre-sentence report indicates that T.A.P. helped to raise those children.

T.A.P. lived with her mother until she was 21 years old. T.A.P.’s father also lived in Toronto and she saw him three times a year. He drank heavily and suffered a brain injury when T.A.P. was a baby, which led to the breakdown of her parents’ marriage. [ 10 ] M. is currently 29 years old. She was attending university, but has put her studies on hold to help her mother. T.A.P. does not know who M.’s father is. [ 11 ] T.A.P. had a second child, a son, in 1993. In 1996, the Children’s Aid Society became involved with the family and the children were taken out of T.A.P.’s custody.

The pre-sentence report indicates that the boy’s father took custody of him and that they moved to Hamilton, although it is not clear when this occurred. T.A.P.’s son has now graduated high school and is attending university. [ 12 ] For 14 years, from 1996 to 2010, T.A.P. was in an abusive and volatile domestic relationship with another man. According to the information T.A.P. provided for the pre-sentence report, her relationship with this man revolved around drugs, specifically crack cocaine and drinking.

She reported that he would force her to use drugs and that he was physically abusive to her. [ 13 ] T.A.P. became pregnant with this man and had her third child in 1998. The pre-sentence report indicates that their relationship was good for about a year after the child was born, but it then deteriorated and T.A.P. restarted her use of crack cocaine. T.A.P. advised that she left this man in 1999 and went to a shelter with her children.

The man was arrested in Amsterdam in 1999 for exporting cocaine and was in custody for 22 months. [ 14 ] T.A.P.’s involvement with this man resumed when he returned to Canada in 2001. At the time, T.A.P. was living in a three bedroom subsidized home. In 2001, the police were called to that home for a domestic violence occurrence and T.A.P.’s children were again removed from her custody by the Children’s Aid Society. Seven months later, T.A.P.’s youngest daughter was returned to her care.

By that time, M. was over the age of 16 and allowed to remain in the house. [ 15 ] In 2002, T.A.P. became pregnant with this man for the second time and had a fourth child, a daughter. When this daughter was 4 months old, T.A.P. again became pregnant and in 2003 she had a fifth child, another daughter. According to T.A.P., the last pregnancy occurred because the man had raped her. These girls are now ages 11 and 10, and both have mental health and developmental issues. [ 16 ] The pre-sentence report indicates that T.A.P. stated that she received the gun from a neighbourhood drug dealer with whom she was friendly.

The Crown questioned the suggestion made in the pre-sentence report that T.A.P. had the gun for her own protection. T.A.P. acknowledged that she never took any steps to arm herself when she was involved in the abusive relationship. However, she testified that in October 2009 when she acquired the gun from a drug dealer, she was living in a housing area where there had been murders, her neighbours had seen her talking to the police, and she did not feel safe.

I accept T.A.P.’s evidence that she was afraid of both her former partner and the drug dealers in her neighbourhood; that she would allow drug dealers to leave things at her home and cook for them in return for drugs; and that she did not ask for the gun, but rather simply accepted possession of it when it was presented to her by one of the men in her neighbourhood. [ 17 ] The pre-sentence report discussed what occurred on the night of the arrest, and this evidence was also explored in cross- examination. T.A.P. stated that she been drinking that night to gain courage to surrender the gun.

She showed the gun to a man she was seeing at the time, and this created a big argument between them. Among other things, T.A.P. stated that the man was very angry because he felt that her possession of the gun could have serious repercussions for him. This argument led her to continue her drinking, which, in turn, escalated the fight, and resulted in the police attending her home in response to a neighbour’s complaint. As noted above, after the man was arrested, he told the police about the gun.

Although T.A.P. did not name the man in her evidence, the only inference can be that it was P.S., given the agreed facts underlying her plea. [ 18 ] From her arrest on March 28, 2010 until January 2011, T.A.P.’s three younger children were placed in the custody of the Children’s Aid Society, and then in M.’s custody for a period of 5 months. The children have now been returned to T.A.P., although the Children’s Aid Society remains involved with the family.

The estranged father of the three younger children is very ill with hepatitis C and possibly HIV and does not appear to be a significant factor in T.A.P.’s life at this time. [ 19 ] Overall, T.A.P. has a difficult and tumultuous personal history, rooted in alcohol and drug abuse. While she attributes her alcohol and drug consumption to her previous violent domestic relationship, her use continued after the relationship ended. There were, however, periods of sobriety over the years, mostly around her pregnancies, and T.A.P. has indicated that she was sober from 2001 to 2008 because of her children.

That said, she repeatedly returned to alcohol and drug use, notably from 2008 to 2010. According to the pre-sentence report and T.A.P.’s viva voce evidence, the last time she used alcohol was the night of her arrest, March 28, 2010, and the last time she used crack cocaine was some two months after her arrest, on May 28, 2010. She stated that she attends Alcoholics Anonymous meetings twice a week, and Cocaine Anonymous meetings two to three times a week. She attributes her current period of abstinence to these meetings and to religion.

Aggravating factors [ 20 ] The obvious and most serious aggravating factor is the presence of a loaded firearm in an apartment in which children were present. The firearm was visible to the officers when they went into the bedroom and accessible to anyone able to reach the chair on which it was found. There was no attempt to hide the gun from view, for example, at the top of a closet, or in a box or bag. One of T.A.P.’s children, exercising a child’s natural curiosity, easily could have been drawn to it.

[ 21 ] As well, T.A.P. had been drinking, and according to the police, was in an intoxicated state. She was in the midst of a heated argument with the man in apartment, of such a volume that the police were called by other residents in the building.

The combination of alcohol and a loaded firearm is a lethal one, creating enormous danger for everyone, including T.A.P.’s children and others in the apartment, the inhabitants of the building at large and, of course, the police. [ 22 ] I also note that T.A.P. possessed the firearm during a period when she was using crack cocaine, and by her own account, she acquired the gun from a drug dealer. These two factors further exacerbate the factual background of her possession. Mitigating factors [ 23 ] There are, as well, mitigating factors. T.A.P. has no prior criminal record.

She has demonstrated her remorse by her willingness to plead guilty. Given her admission of guilt, the charges against her co accused P.S. were withdrawn at an early date. [ 24 ] As indicated, T.A.P. has five children. The two youngest girls are now ages 10 and 11. The pre-sentence report notes the following about these children: The older child has developmental issues and mental health issues. Her youngest daughter has severe Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder as well as mental health issues.

Both children are not on medication but are active in therapy at The Hincks-Dellcrest Centre. The youngest child has a “safety person” around her at school at all times in order to ensure that she is safe as well as other children around her. [ 25 ] These children are seen by Dr. Debra Stein, who is the Head of the Latency Assessment Team and Staff Psychiatrist at The Hincks-Dellcrest Center. According to the pre-sentence report, Dr. Stein indicates that T.A.P. has been active with her daughters and that she has been creating “normalcy” with them. Dr.

Stein indicated further that T.A.P. followed up with recommendations that The Hincks- Dellcrest Center has made. [ 26 ] In a letter dated November 28, 2012 and filed as an exhibit at the sentencing hearing, Dr. Stein writes as follows: As I have gotten to know T.A.P. and her children I have been impressed by T.A.P.’s level of commitment to her daughters’ wellbeing. T.A.P. is clearly a caring and loving mother who is trying hard to put her children’s needs first, as evidenced by her regular attendance of her daughters’ visits to the Hincks and her advocacy on their behalf, both in sessions and at their schools.

What also is quite clear is the extent to which her daughters rely on her for their sense of security and wellbeing. [ 27 ] T.A.P.’s recent success with maintaining her sobriety and abstaining from drug use are also mitigating factors. As stated, she has not had alcohol since her arrest on March 28, 2010, and she has not used cocaine since May 28, 2010.

In this regard, I note T.A.P.’s candour: she was forthright in her acknowledgment that her cocaine use continued after her alcohol use ended. [ 28 ] With respect, I am not persuaded by the Crown submission that there is nothing before me to establish rehabilitation, and that T.A.P. has not accessed community resources for herself in the way that that she has for her children.

T.A.P. was readily able to identify the dates she last consumed alcohol and cocaine and, as noted, is a regular attendee at Alcoholics Anonymous and Cocaine Anonymous meetings. [ 29 ] In addition, T.A.P. commenced the Healing from Abuse Program, Stage 1 Trauma Program offered by the Elizabeth Fry Society of Toronto in February 2011. Ms. Jaime McGuire of the Elizabeth Fry Society reported that T.A.P. was a “fantastic participant” and benefited from the program, particularly when she realized that she needed to concentrate on self-care which would in turn lead to caring for her children.

In 2011, T.A.P. also participated in one-on-one counselling sessions for general support offered by the Elizabeth Fry Society, as well as its “Mothers Who Care” program. [ 30 ] Finally, I note that T.A.P. has not violated her bail conditions during her three years of release on bail. Gladue Report [ 31 ] The sentencing hearing in this matter was adjourned twice to address the issue of Ms. T.A.P.’s Aboriginality. As stated in the recent Supreme Court of Canada decision of R. v.

Ipeelee , 2012 SCC 13 , [2012] 1 S.C.R. 433, at para. 87 , a sentencing judge has a statutory duty to consider the special circumstances of an Aboriginal offender: The sentencing judge has a statutory duty, imposed by s. 718.2 (

e) of the Criminal Code , to consider the unique circumstances of Aboriginal offenders. Failure to apply Gladue in any case involving an Aboriginal offender runs afoul of this statutory obligation. As these reasons have explained, such a failure would also result in a sentence that was not fit and was not consistent with the fundamental principle of proportionality. Therefore, application of the Gladue principles is required in every case involving an Aboriginal offender, including breach of an LTSO, and a failure to do so constitutes an error justifying appellate intervention. [ 32 ] On October 23, 2012, Mr.

Jonathan Rudin of Aboriginal Legal Services of Toronto (ALST) advised the court by letter that Jennifer Bolton, a caseworker at ALST, had twice interviewed T.A.P. and had made several phone calls to members of her family. Mr. Rudin went on to say that despite these efforts, ALST could not confirm the details of Ms. T.A.P.’s Aboriginal ancestry. As such, it could not provide the court with a report that addresses her Aboriginal circumstances and could not write a Gladue Report on her behalf. [ 33 ] On October 25, 2012, Mr. Rudin wrote a letter to the Crown Ms. Haydon detailing the contacts made by Ms.

Bolton in an effort to ascertain Ms. T.A.P.’s Aboriginal background. That letter lists the 17 contacts or attempts at contact made from September 20, 2012 to October 12, 2012. At an appearance on October 26, 2012, the defence made further submissions about T.A.P.’s belief in her

Aboriginal ancestry. The defence was instructed to provide ALST with any further contact information that could substantiate her belief. [34] In a letter dated January 11, 2013 Ms. Bolton of ALST detailed the additional efforts made to research T.A.P.’s background inthe hopes of finding out more about T.A.P.’s family and her purported linkages to the Mi’kmaq community. [35] In

summary, Ms. Bolton reported as follows: [I]t appears that both T.A.P. and her cousin P.N. believe their grandfather C.N. was an Aboriginal person who was adopted from his birthfamily prior to the age of ten and raised by the N.s, whose names were given by M.A. as Harvey and M.. The surviving children of C.N.that we were able to contact, M.A., C.B. and C.H., hold the belief that Harvey and M. are their biological grandparents, their father wasnot adopted and he is also not Aboriginal.

C., who was raised by C.N. and M. and is their grandchild, has no recollection of hisgrandfather telling him that he was Aboriginal. Given this conflicting information it is impossible to determine if T.A.P. herself hasAboriginal ancestry and we are not drawing any conclusions either way. There have been Aboriginal people affiliated with the family,through P.N.’s father and G.C.’s marriage to I.M., but the role of these members of her extended family in her life appeared remote. [36] T.A.P. and her first cousin P.N. both testified at the sentencing hearing.

They were consistent in their evidence that when theywere young children, their grandfather C.N. told them he was Aboriginal. They also stated that their grandmother, C.N.’s wife, did notwant C.N. to acknowledge his Aboriginal heritage. [37] I accept that T.A.P. has some Aboriginal lineage, given her unwavering assertion on this issue, her viva voce evidence, and the confirming viva voce evidence of her cousin P.N..

As a grandchild of C.N., T.A.P. would be either 1/8th or 1/16th Aboriginal. [38] In considering the Gladue principles, the Supreme Court in Ipeelee provides the following instruction, at para. 60: To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and howthat history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substanceabuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. [39] I return to the January 11, 2013 letter from Ms.

Bolton of ALST where she stated that it was unclear how T.A.P.’sAboriginality has affected her life: Even if T.A.P.’s belief is correct, and her grandfather is Mi’kmaq, we are still unable to make connections to how this has affected herlife circumstances. The purpose of a Gladue report is to discuss the way in which the individual before the court has been influenced andaffected by their Aboriginal circumstances. We have no such information.

We are unable to find further information on who ElizabethWoodcock was and why she might have given her son C.N. up for adoption and we have no idea how being an Aboriginal personaffected C.N.’s life as none of his remaining children can provide that to us. Due to these factors, we are unable to complete a GladueReport. [40] The Gladue examination must go beyond a technical assessment of bloodline. In this case, T.A.P. acknowledged that she hasnever participated in any Aboriginal customs or taken any steps to connect to her heritage.

While she stated that she visited a reserve as achild, she did so simply to visit a friend who lived there. She described a happy life as a teenager where she was “protected from negativeinfluences” and in particular, noted that there was no alcohol in her grandparents’ home where she was raised. [41] It is clear that T.A.P. has suffered from limited education, low income, unemployment, and substance abuse.

However, givenher own evidence about her personal history, any nexus between her Aboriginality and her criminal behaviour would be remote at best.Overall, I find there are no unique systemic or background factors that have influenced or impacted T.A.P.’s coming before this courtand which would influence her sentence: see Ipeelee, at para. 59, citing R. v. Gladue, (SCC), [1999] 1 S.C.R. 688, atpara. 66. Range of Sentence [42] In examining the range of sentence for a s. 95(1) possession of a loaded prohibited firearm offence, Molloy J. in Smickle,referred extensively to the decision of Code J. in R. v.

Nur, 2011 ONSC 4874, [2011] O.J. No. 3878, and, at para. 62 stated: In Nur, Code J. did a thorough review of the case law for the ten years between 1998 and 2008 dealing with the appropriate sentence fora first offence of possession of a loaded handgun. He concluded that, particularly since 2005, the range of sentence was between twoyears less a day and three years for cases involving accused persons who possessed handguns for some unlawful purpose and where theCrown decided to proceed by indictment.

He noted that the bottom end of that range was “generally reserved for youthful first offenderswith good rehabilitative prospects who plead guilty, and the higher end of the range was generally reserved for offenders with priorrecords who proceed to trial.” However, he also noted that departures from the “range” were appropriate where there are strongmitigating or aggravating factors or where there are rare or unusual circumstances taking the case outside the norm. [43] I agree with the assessment that in a typical case, proceeding by indictment, the range of sentence for a youthful first-timeoffender would have been between two years less a day and three years, given that the mandatory minimum during that time was one

year. However, as is always the case, sentencing is case specific, depending on the unique circumstances of each particular case. [44] In R. v. Los, [2008] O.J. No. 3248, Mr. Los was in possession of a loaded restricted firearm, namely a sawed-off rifle. He didnot plead guilty, and had a minor, dated criminal record. His evidence was that he found the gun and ammunition in a dumpster and keptit as a way to protect his family; he lived in a crime-ridden area and felt that the police were slow to respond. On the date of the offence,there was a disturbance outside his home and Mr.

Los thought some children were going to die. He retrieved his gun, went to the secondfloor window of his apartment building, and fired the gun into the air. Mr. Los was sentenced to 18 months, more than the mandatoryminimum, and the trial judge noted that taking matters into his own hands and firing a gun, rather than waiting for the police, wereaggravating factors. [45] In R. v. Canepa, 2011 ONSC 1406, [2011] O.J. No. 924, the police attended at Mr. Canepa’s apartment in response to acommunity call about the smell of marijuana coming from his apartment.

The police entered the apartment, noticed marijuana on thetable, and arrested Mr. Canepa. As a result of a conversation with Mr. Canepa, the police located a loaded restricted firearm under atable. Mr. Canepa was a youthful first offender, with extenuating personal circumstances. He had taken strong rehabilitative steps tomove his life in a positive direction. Mr. Canepa pled guilty to simple possession of a firearm without legal authorization, for whichthere was no mandatory minimum and received a one year sentence, to be served in the community. [46] In Smickle, Mr.

Smickle was in his cousin’s apartment and decided to pose for a Facebook picture with a loaded handgun inhis hand. Just as he was taking the photo, the police entered the apartment to execute a search warrant. Mr. Smickle was lying on thecouch with the loaded firearm in one hand and his computer in the other. He was convicted of possession of a loaded prohibited firearmand careless storage. Mr. Smickle was 27 years old with no criminal record and was working full-time at the time of his arrest. He wasconvicted after a trial and received a one year sentence, to be served in the community. [47] Unlike Mr.

Los, T.A.P. pled guilty, had no criminal record, and she did not fire the gun. Like Mr. Canepa, who possessed thegun in conjunction with drugs, T.A.P. possessed the gun in conjunction with alcohol. However, Mr. Canepa apparently was alone in hisapartment, whereas there were children in the apartment with T.A.P.. Mr. Smickle was alone when found with the gun and there was noconnection to drugs, but there was no plea in his case. Yet Mr. Smickle’s action was a single moment of foolishness, while T.A.P. hadpossessed the gun in her family’s home for six months.

Range of Sentence for T.A.P. [48] I have considered the case law and the sentencing principles set out in s. 718 of the Criminal Code, in particular, denunciation,specific and general deterrence, rehabilitation and protection of the public: see R. v. Danvers, (ON CA), [2005] O.J.No. 3532 (C.A.). [49] There can be no doubt about the serious criminality of gun possession, and the grave danger it poses to our communities.

InNur, Code J. adopted the following comment from the Ontario Court of Appeal, from Armstrong J.A. in Danvers, at para. 77: There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongestpossible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the communityand must be addressed. [50] However, possession can arise in a myriad of ways and s. 95(1) is not a one-size-fits-all type of offence, as noted by Molloy J.in Smickle, at paras. 105 and 117.

I accept T.A.P.’s evidence that she possessed the gun in some misguided attempt at self-protectionwhen presented with it by a drug dealer in her neighbourhood. The explanation as to why the drug dealer gave her the gun is vague as towhether it was given to her for her own protection or whether it was given to her to hide and she was fearful of refusing his request. Thatsaid, there is no evidence to suggest that she actively sought the gun, that it was ever taken outside her apartment, or that she had anyintention of using it. As reviewed, T.A.P. has no criminal record.

She has made, and continues to make, considerable efforts to turn herlife around, notably with respect to her addictions and her care for her children. [51] In the particular circumstances of this case, I find the appropriate sentence for T.A.P. to be less than two years. The specificlength of sentence and the issue as to whether this sentence should be served in the community will be addressed below. Impact of Smickle [52] In Smickle, Molloy J. found that the three year mandatory minimum sentence for Mr.

Smickle would be “grosslydisproportionate” to what he deserved for a single act of bad judgment and foolishness, and that it violated

section 12 of the Charter as itwould be cruel and unusual punishment. She also examined the hybrid scheme for prosecuting the offence, and in particular, the twoyear gap between the

summary maximum and the indictable minimum. Molloy J. found that the hybrid scheme is irrational andarbitrary, in breach of

section 7 of the Charter, and that it could not be saved by

section 1. After a thorough analysis, Molloy J., at para.162, made a declaration that the reference to a minimum punishment of imprisonment for a term of three years, in the case of a firstoffence, as set out in s. 95(2)(a)(

i) of the Criminal Code is inconsistent with the Charter and of no force or effect. [53] In coming to this conclusion, Molloy J. considered whether the declaration should be suspended, in order to permit thelegislature to address the issue: R. v. Bedford, 2012 ONCA 186, 109 O.R. (3d) 1. However, following Schachter v. Canada, (SCC), [1992] 2 S.C.R. 679, she determined that a suspension was not the appropriate remedy and 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. noted, at p. 716, that to delaythe declaration “is a serious matter.” A suspended declaration allows for a Charter-violating state of affairs to persist. Lamer C.J.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. [Footnote omitted.] [54] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court of Canada addressed the matter of a declaration ofinvalidity and determined that a declaration of invalidity applies to all future cases.

Chief Justice McLachlin stated as follows at para. 65: 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. [55] The issue of whether the declaration in Smickle applies to all further cases was addressed by Strathy J. in the recent decision inR. v. Scarlett, 2013 ONSC 562. Strathy J., at para. 42, relied on Ferguson and noted: McLachlin C.J.C. expressly rejected the notion that, after a declaration of invalidity in one case, the courts should continue to considerthe issue on a case-by-case basis, requiring the accused to seek a constitutional exemption in the circumstances of his or her particularcase.

She noted, at paras. 72-73, that this would create uncertainty for accused persons, and for Parliament, concerning the precise scopeof the law. It would also lead to uneven and unequal application of the law. [56] The Crown asks me to find that the declaration in Smickle is not binding on this court, a court of coordinate jurisdiction. While decisions of judges of coordinate jurisdiction are not absolutely binding, they should be followed in the absence of cogent reasonsto depart from them, because “judicial comity provides that judges of coordinate jurisdiction should follow each other”: R. v.

Letourneau,2008 ABPC 192, 447 A.R. 218, at para. 42. In Letourneau, the court cited the general rule as set out in Re Hansard Spruce Mills, (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 591, that a judge should only go against the judgment of another trial judgefrom his own court if: (

a) subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; and (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. [57] To date there has not been a subsequent decision that has affected the validity of the decision in Smickle; it has not beendemonstrated that some binding authority or relevant statute was not considered; and I am satisfied that the decision was thoroughlyconsidered by Molloy J. [58] In sum, I find no reason to depart from the decision in Smickle; rather, judicial comity persuades me that it should befollowed.

To do otherwise would be to reduce the declaration of invalidity in Smickle to a constitutional exemption, which would becontrary to the Supreme Court’s decision in Ferguson, which stated, at para. 69, that: “Constitutional exemptions for mandatoryminimum sentence laws raise concerns related to the rule of law and the values that underpin it: certainty, accessibility, intelligibility,clarity and predictability.” [59] Accordingly, it is not necessary for me to engage in the analysis as to whether the mandatory minimum sentence in s. 95(2)(a)(

i) is unconstitutional; this issue has been determined by Molloy J. Conditional Sentence

[60] As indicated, I find that a sentence of less than two years is a fit sentence for T.A.P.. The defence submits that this sentenceshould be served in the community. [61] The Crown submits that s. 742.1 of the Criminal Code prohibits the imposition of a conditional sentence in this case.

Thissection provides that a person convicted of a serious personal injury offence as defined in s. 752 of the Criminal Code is not eligible for aconditional sentence. [62] An indictable offence, for which the offender could be sentenced for 10 years or more, and which involves conductendangering or likely to endanger the life and safety of another person will be considered to be a serious personal injury offence. Theoffence for which T.A.P. is being sentenced can attract a sentence of 10 years or more.

Consequently, the question is whether herconduct endangered the life or safety of another person, or was likely to do so. [63] In R. v. Thornton, [1991] O.R. (3d) 480 (C.A.), aff’d (SCC), [1993] 2 S.C.R. 445, in the context of a s. 180common nuisance offence, Galligan J.A. defined “endanger” at para. 26:

Section 180 requires that the conduct of a person "endanger" the lives or health of the public. It does not require actual injury or damage.The word "endanger" does not have any special technical meaning. Among the ordinary meanings of that word are the concepts ofexposing someone to danger, harm or risk, or putting someone in danger of something untoward occurring. [64] Whether criminal conduct amounts to a serious personal injury offence is a factual determination that will “always be withinthe interpretive discretion of the court”: R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263, at para. 68.

On the night of the arrest, thefirearm was easily reachable on a chair; there were children and others in the house; T.A.P. was intoxicated; and, she and P.S. wereengaged in a heated argument. It would be incongruous to conclude that this combination of facts did not expose others to danger, harmor risk.

While I accept T.A.P.’s explanation as to why she had the gun, it does not eliminate the peril inherent in its possession in thesecircumstances. [65] Accordingly, I find that T.A.P. has been convicted of a serious personal injury offence, and as such, she is not eligible for aconditional sentence pursuant to s.742.1 of the Criminal Code. [66] That said, I note that if I was not otherwise mandated by ss. 742.1 and 752, I would have imposed a conditional sentence onT.A.P. for the following reasons. [67] Firstly, as noted by the Supreme Court in R. v.

Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 79, a conditional sentenceunder s. 742.1, “is available in principle for all offences in which the statutory prerequisites are satisfied.” Lamer C.J.C. for the courtwent on to explain, at para. 81: In my view, while the gravity of such offences is clearly relevant to determining whether a conditional sentence is appropriate in thecircumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences areinappropriate for specific offences.

Offence-specific presumptions introduce unwarranted rigidity in the determination of whethera conditional sentence is a just and appropriate sanction.

Such presumptions do not accord with the principle of proportionality set out ins. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity andconsistency in the use of conditional sentences. [68] Secondly, I am satisfied that serving the sentence in the community would not endanger the safety of the community andwould be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. T.A.P. has indicatedremorse for her actions. She has no criminal record.

While her reasons for having the loaded firearm are somewhat confusing, andclearly unwise and imprudent, they bear the ring of truth, given her circumstances. There is very little risk of her re-offending. [69] Finally, and significantly, I am satisfied that in this case serving the sentence in the community would have been consistentwith the principles of sentencing. The goal of specific deterrence has been met by the albeit brief pre-trial custody, the lengthy period ofbail, and the impact that these charges have had on T.A.P.’s life.

Given the nature of her possession, I am also of the view that generaldeterrence and denunciation could have been met by a strict sentence served in the community. [70] Significant as well and especially germane in this case, is the principle of rehabilitation. As stated by Nordheimer J. at para.16 of in Canepa: In addition, however, denunciation and deterrence are not the only objectives of sentencing. Another objective is rehabilitation.

Whilepeople convicted of offences must be appropriately punished, the imposition of a punishment that inhibits or detracts from a person'sability to recover from the mistakes that they have made does not promote the long term interests either of the person or of our society. [71] T.A.P. is actively engaged with Alcoholics Anonymous and Cocaine Anonymous. The pre-sentence report indicates that sheattends weekly bible study. She is trying her best to be a good mother to her two younger children and is actively and positively involvedwith their therapy.

Her participation has been productive and beneficial to her children. Indeed, Dr. Stein reports these children havecome to rely on her for their sense of security and wellbeing, and opines that incarceration at this point “will be nothing short ofdevastating to her girls”.

T.A.P. and her younger children also have the support and constancy of her eldest child M., who has attended incourt and has put her own studies on hold to assist her mother. [72] Given this background, I am of the view that a jail sentence of less than two years, as opposed to a sentence served in thecommunity, does not best promote the sentencing objectives set out in s. 718 of the Criminal Code, and in particular, does not best fosterT.A.P.’s continued rehabilitation and reintegration into society and her own sense of responsibility. Indeed, I am satisfied that it wouldbe harmful to her and to her children.

However, as noted, a conditional sentence is not available in this case because of the effect of ss.742.1 and 752. Sentence for T.A.P.

[ 73 ] The sentence for T.A.P. must balance the sentencing principles and accord with the provisions of the Criminal Code . However, in this case the options are limited, given that the mandatory minimum is unconstitutional and a conditional sentence is statutorily unavailable. [ 74 ] In my view, a determinate jail sentence of up to two years would achieve the sentencing principles of denunciation and deterrence, but it would remove T.A.P. from her very vulnerable daughters who need her.

It would prevent her from participating in their ongoing therapy at The Hincks-Dellcrest Center, which would be very damaging to their development and would destabilize the progress they have made, progress which is linked to their mother’s involvement and support. Separation from her children due to a determinate jail sentence would also serve to undermine T.A.P.’s self-improvement.

Her personal recovery is inexorably connected to her involvement with her children, and a determinate custodial sentence would jeopardize the significant advancements she has made, both with respect to her children and her own personal healing. [ 75 ] On the other hand, while a suspended sentence and probation would promote the objectives of rehabilitation and promotion of responsibility that are so important in this case, it is too lenient an option in view of the charges.

This type of sentence would not effectively meet the objectives of deterrence and denunciation. [ 76 ] Given that neither a determinate jail sentence or a suspended sentence with probation are appropriate on the facts of this case, I find that the sentencing objectives will be met by a sentence of 90 days imprisonment, to be served intermittently on weekends, followed by three years of probation, which will include a strong element of community service.

This sentence will allow T.A.P. to care for her two younger children during the week and to continue to participate in their therapy, and when T.A.P. is in custody on the weekends, the children can remain in the care of her eldest daughter M.. A sentence of this nature will not disrupt the girls’ routine or their wellbeing and security, and will also protect and encourage the tremendous rehabilitative progress T.A.P. has made to date. The punitive aspect of the custodial term will promote deterrence and denunciation, as will a challenging and serious obligation to perform community service.

In addition, the community service requirement will have a restorative aspect, as it will require T.A.P. to work in her community, and become more integrated with and aware of her responsibility to others. [ 77 ] For these reasons, I am satisfied that the sentence of 90 days custody, served intermittently, followed by probation, is the appropriate sentencing option on the facts of this case. It will reflect and balance the sentencing principles of denunciation and deterrence, along with rehabilitation and promotion of responsibility.

This sentence will bring home to T.A.P. the gravity and recklessness of her conduct, will deter others from acting as ill-advised repositories of firearms for others, and will allow for and support her ongoing personal progress and parental obligations. [ 78 ] Counsel will be provided an opportunity to make submissions as to when the intermittent sentence should commence and as to the terms of probation, beyond the mandatory terms.

Ancillary Orders [ 79 ] There will also be a mandatory s. 109 of the Criminal Code weapons prohibition order in respect of any prohibited firearm, restricted firearm, prohibited weapons, prohibited device, and prohibited ammunition for life, and in respect of any other firearm, crossbow, restricted weapon, ammunition, and explosive substance for 10 years; an order forfeiting the firearm and ammunition under s. 491(1) of the Criminal Code ; and, a DNA order under s. 487.051(2) of the Criminal Code . CROLL J. Released: March 5, 2013 CITATION : R. v.

TAP, 2013 ONSC 797 COURT FILE NO.: 11-70000824-0000 DATE: 20130305 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Applicant – and – T.A.P. Defendant DECISION ON SENTENCE CROLL J. Released: March 5, 2013