R v Johnson, 2021 SKCA 63

Court of Appeal for Saskatchewan Docket: CACR3235 Citation: R v Johnson , 2021 SKCA 63 Date: 2021-04-16 Between: Cullen Sol Sullivan Johnson Appellant And Her Majesty the Queen Respondent Before: Ryan-Froslie, Leurer and Tholl JJ.A. Disposition: Conviction appeal – appeal dismissed Sentence appeal – leave to appeal granted; appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Tholl On appeal from: Conviction – 2018 SKQB 322 , Saskatoon Sentence – CRM 69 of 2018, Saskatoon Appeal heard: February 18, 2021 Counsel: Jean-Pierre Seguin for the Appellant Pouria Tabrizi-Reardigan for the Respondent Leurer J.A. I. INTRODUCTION [ 1 ] On January 17, 2018, police officers entered an apartment to respond to what they thought was an emergency. Cullen Johnson, along with others in the apartment, were ushered out of the premises. When the police officers examined the apartment, they found a sawed-off .22 calibre rifle partially tucked into the couch on which Mr.

Johnson had been found. [ 2 ] Mr. Johnson was charged with the following three offences: (

a) possession of a prohibited firearm, knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(2) of the Criminal Code ; (

b) possession of a loaded prohibited firearm, not being the holder of an authorization or licence under which he may possess the said firearm in that place, contrary to s. 95(1) (

a) of the Criminal Code ; and (

c) possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to s. 109 of the Criminal Code , contrary to s. 117.01(1) of the Criminal Code . [ 3 ] Mr. Johnson was tried before a Court of Queen’s Bench judge sitting without a jury and was convicted of all three charges: R v Johnson , 2018 SKQB 322 . He received a global sentence of seven years for his crimes: R v Johnson (15 February 2019) Saskatoon, CRM 69 of 2018. [ 4 ] Mr. Johnson now appeals his conviction and applies for leave to appeal his sentence. I would dismiss his conviction appeal.

I would grant him leave to appeal his sentence but also dismiss that appeal. My reasons follow. II. CONVICTION APPEAL A. The evidence at trial [ 5 ] At approximately 9:20 a.m. on January 17, 2018, members of the Saskatoon Police Service [SPS] were dispatched to an apartment to respond to a report that someone inside the suite was being held hostage at gunpoint. Officers arrived around 9:30 a.m. and positioned themselves outside the apartment’s closed door. The attending officers arranged for the communications branch of the SPS to make a telephone call to the apartment.

After that call was made, the door opened and one person stepped out. Officers entered the apartment and began ordering the remaining six occupants to show their hands and to leave the apartment. [ 6 ] One of the first officers to enter the apartment was Constable Carl Gutek. He testified that he saw a male, later identified as Mr. Johnson, lying on a beige couch on the left side of the living room. The man had his feet toward the door of the suite. According to Cst.

Gutek, after the command had been given for occupants to show their hands, the person “appeared to be fidgeting down to his right side”, and “constantly moving there until he was able to -- or until he did comply and put up his hands”. This fidgeting was “down towards his hip area”, which was “[e]xactly where the gun” was later found. In cross-examination, Cst. Gutek stated that Mr. Johnson’s movements initially involved both hands, and then “eventually … just the right hand and then both hands came up”. [ 7 ] After Mr. Johnson got up from the couch, Cst.

Gutek spotted the trigger, trigger guard and back end of a shortened rifle stock

protruding between the seat cushions and the back of the couch. The weapon was later identified to be a .22 calibre rifle. Several of theother attending officers also testified as to the rifle’s location. Their verbal descriptions of the rifle’s location were verified by aphotograph taken before the rifle was moved. The judge accepted, as fact, that the “photograph established the location of the firearm onthe couch when first seen by Cst. Gutek” (at para 18). When the rifle was removed, its barrel was also found to have been sawed off. [8] Several admitted facts completed the core of the Crown’s case. These included that (

a) the rifle was a firearm as defined by s.2 of the Criminal Code; (

b) in its modified form, the rifle was a “prohibited firearm” as defined in s. 84(1)(

b) of the Criminal Code; (c)Mr. Johnson was not the holder of a licence under which he may possess any firearms; and (

d) Mr. Johnson was prohibited for life frompossessing any firearm, by previous order of the Provincial Court of Saskatchewan made pursuant to s. 109 of the Criminal Code. [9] Mr. Johnson testified in his own defence. The judge’s

summary fairly captures Mr. Johnson’s testimony: [20] [Mr. Johnson] testified that he had not slept in the previous three days because he had been “smoking meth” and “smoking weed”.In cross-examination, he referred to this as a “three-day meth bender”. [21] He said he went to an apartment on Avenue W at about 10:00 p.m. on the night before January 17, 2018 and drank vodka and“took pills”. He later elaborated that he took gabapentin pills, muscle relaxants which made him feel drunk. He also testified that hesmoked crystal meth and marijuana.

He described himself at this point as “pretty intoxicated”. [22] Then, at some point, he had a fight with his girlfriend and he left the apartment and went to the suite on Avenue X. While he isunclear on many other details, such as who lived in the suite or how he got there, he recalls checking his phone at about 3:00 a.m. onJanuary 17, 2018, and suggests this is about the time he went there. [23] Mr. Johnson also recalls getting into the apartment building on Avenue X because the outer door was not locked. He went to thesuite where he understood his friend Dylan Campeau was. Mr.

Campeau came to the door of the suite to let him in. He recallsMr. Campeau then went to the blue couch in the living room, and Jared Wuttunee was already on another couch. Mr. Johnson then placedhimself on the third couch, the beige one, where he “passed out, blacked out”. [24] He testified he was woken up by the police at the door later that morning and, when confronted by the commands of Cst. Gutek,he immediately put his hands up in the air and left the suite. B.

The conviction decision [10] After reciting matters of background, and in respect to which agreement existed, the judge framed the only issue in the trial tobe whether the Crown had proven beyond a reasonable doubt that Mr. Johnson was in possession of the rifle.

The judge referred to s. 4(3)of the Criminal Code, and case law, and self-instructed that “in order to prove possession, the Crown must establish the accused hadknowledge of the prohibited item along with the exercise of some act of control over it” (at para 14). [11] With this, the judge summarized the evidence of the witnesses, concluding with his review of Mr. Johnson’s testimony.Following this, he further self-instructed that he was “required to follow” the direction given by the Supreme Court in R v W.(D.), (SCC), [1991] 1 SCR 742 at 757–758 [W.(D.)] (at para 25).

He stated that “[a]fter a careful review of the evidence, [he did] notaccept Mr. Johnson’s evidence that he had no knowledge of the sawed off .22 rifle found on the beige couch beside him” (at para 27). Thejudge then provided his reasons for this conclusion. [12] First, the judge found “the testimony of Mr. Johnson was, in some parts, internally inconsistent” (at para 28). He gave as anexample Mr. Johnson’s claim that “he was so intoxicated, after consuming alcohol and a variety of drugs over the previous three days, thathe blacked out a few moments after entering the suite” (at para 29).

The judge reviewed the details of Mr. Johnson’s recollectionsbeginning at 3:00 a.m. and concluded that Mr. Johnson “recalled a level of detail that was inconsistent with the level of intoxication thathe claimed” (at para 30). The judge also reviewed other evidence and stated that he did “not accept that [Mr. Johnson] was so intoxicatedthat he did not have knowledge of the firearm on the couch beside him” (at para 33). [13] Second, the judge found that Mr. Johnson’s evidence was contradicted by other evidence which he accepted. This evidenceincluded Mr.

Johnson’s testimony that “when he was confronted by the police at the doorway to the suite, he immediately complied withthe commands of the officer to raise his hands” (at para 35). The judge accepted Cst. Gutek’s testimony that Mr. Johnson had delayed inhis compliance with the order to raise his hands. He found that “was for only one reason: Mr. Johnson was trying to conceal the firearm inthe couch” (at para 36). The judge found that the “fidgeting was for only one reason: to conceal the firearm” (at para 37).

He reasoned thatthe “firearm was found in the same location on the couch where the accused was fidgeting with his hands unequivocally supports thisconclusion” (at para 38). [14] Third, the judge found Mr. Johnson’s evidence to be “simply not plausible” and “contrary to ordinary human experience” (atpara 39). Owing to the size and location of the rifle, he did “not accept Mr. Johnson’s assertion that he was unaware of it beside him” (atpara 40). He also did not accept that anyone else “was in possession of the firearm and was responsible for leaving it on the couch that[Mr.

Johnson] occupied” (at para 41), given that “a loaded firearm is a valuable and dangerous item, and it is not plausible that anindividual would carelessly surrender control of such an asset” (at para 42). [15] After reiterating that he did “not accept Mr. Johnson’s testimony” (at para 46), the judge completed his analysis by concludingas follows: [47] I therefore apply the analytical steps required by W.(D.) in the following way: a. I do not believe the evidence of Mr. Johnson; b. I am not left in a state of doubt after considering his evidence in the context of the evidence as a whole;

c. Finally, on the basis of the evidence I accept, and looking at the evidence as a whole, I am satisfied beyond a reasonable doubt that Mr.Johnson had knowledge of the firearm beside him on the couch and that he exercised control over it. I am therefore satisfied beyond areasonable doubt that he had possession of the firearm. C. Analysis [16] Mr. Johnson challenges his conviction on two bases, namely, that (

a) the trial judge erred in law by placing an impermissibleonus on him to disprove his level of intoxication, and (

b) the verdict was unreasonable. 1. Did the judge place an impermissible onus on Mr. Johnson? [17] Mr. Johnson’s evidence was that he was seriously intoxicated by drugs and alcohol when he fell asleep in the early hours ofJanuary 17, 2018, and he had no knowledge that the gun was on the couch. If this was true, Mr. Johnson would lack the necessaryintention to possess the rifle. Mr. Johnson’s first submission is that the judge, in effect, imposed an onus on him to disprove his lack ofintoxication at relevant times. [18] The level of Mr.

Johnson’s intoxication was relevant to his state of mind and was treated as such by the judge. Mr. Johnsonbore no onus of proof with respect to this issue. However, I see nothing in the judge’s reasons that supports the contention that he hadplaced an onus on Mr. Johnson to establish anything in relation to his state of mind, including as to his level of intoxication. Instead, thejudge simply made a finding of fact that was contrary to Mr. Johnson’s evidence on this point. In this regard, the judge stated that he did“not accept that [Mr.

Johnson] was so intoxicated while on the beige couch that he was unaware a firearm was beside him” (at para 31).The judge continued his reasoning as follows: [32] Further, there is no evidence that he was impaired or intoxicated when he was confronted by the police officers after 9:20 a.m. onJanuary 17, 2018. None of the officers present at the suite that morning provided evidence of impairment, and Mr.

Johnson did not testifythat he was intoxicated that morning. [33] After considering his evidence, both with respect to the details he could and could not recall, and with respect to the actions heclaimed to take that evening, I do not accept that he was so intoxicated that he did not have knowledge of the firearm on the couch besidehim. [19] The judge assessed the Crown’s case against the W.(D.) framework. This framework is the practical expression of the basicprinciple that an accused person does not bear the burden of proof. First, as I have explained, the judge found Mr.

Johnson’s evidence tobe unbelievable and gave detailed reasons for this conclusion, which I have reviewed. Second, after rejecting Mr. Johnson’s testimony asunbelievable, the judge considered whether Mr. Johnson’s evidence nonetheless gave rise to a reasonable doubt, the second step in the W.(D.) framework. Finally, the judge asked himself whether “looking at the evidence as a whole, [he was] satisfied beyond a reasonabledoubt that Mr. Johnson had knowledge of the firearm beside him on the couch and that he exercised control over it” (at para 47).

In myrespectful view, this satisfied the third step in W.(D.), namely, whether the evidence accepted by the judge established, beyond areasonable doubt, Mr. Johnson’s guilt. Only after answering all three of these questions did the judge find Mr. Johnson guilty. [20] Based on all of this, I see nothing to Mr. Johnson’s argument that the judge erred by placing an impermissible burden or onus ofproof on him. 2. Was the verdict unreasonable? [21] Mr. Johnson’s second argument, and the core of his conviction appeal, is that the verdict was unreasonable because it wasunsupportable by the evidence.

He observes that none of the officers provided evidence of his intoxication. He notes that there is no directevidence that he entered the apartment with the firearm, no testimony that he had handled or even seen the firearm and no trace of hisfingerprints or DNA on it. Based on all this, he submits that the verdict is not one that a properly instructed trier of fact, acting judicially,could reasonably have rendered. [22] It is useful to begin the assessment of Mr. Johnson’s argument by distinguishing a challenge to a judge’s factual determinationsfrom a challenge to the reasonableness of the verdict as a whole.

Mr. Johnson’s arguments relating to the evidence of his intoxication areproperly understood to amount to an attack on a specific finding of fact made by the judge and on the judge’s finding as to Mr. Johnson’scredibility.

An appellate court cannot interfere with a judge’s findings of fact or credibility unless they are the product of palpable andoverriding error: R v Clark, 2005 SCC 2 at para 9, [2005] 1 SCR 6; and R v Gagnon, 2006 SCC 17 at para 10, [2006] 1 SCR 621. [23] To decide whether a verdict is unreasonable, an appellate court must determine whether it is one that a properly instructed trierof fact, acting judicially, could have reached: R v Corbett, (SCC), [1975] 2 SCR 275 at 282; and R v Biniaris, 2000 SCC15 at para 36, [2000] 1 SCR 381.

An appellate court may also find a verdict unreasonable if the judge has drawn an inference or made afinding of fact essential to the verdict that is (

i) plainly contradicted by the evidence relied on by the judge in support of that inference orfinding, or (ii) shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the judge: R v R.P., 2012SCC 22 at para 9, [2012] 1 SCR 746; and R v Sinclair, 2011 SCC 40 at paras 4, 16 and 19–21, [2011] 3 SCR 3.

Appellate interference onthe basis that the verdict is unreasonable is warranted only if the error is such that, after reviewing all the evidence, it is apparent theverdict cannot be supported on any reasonable view of the evidence: R v Choli, 2019 SKCA 87 at paras 52–60; R v P.R., 2018 SKCA 27at para 49, 365 CCC (3d) 120; R v Frances, 2017 SKCA 109 at para 3; and R v Burke, (SCC), [1996] 1 SCR 474 at para7. [24] I will briefly consider each of Mr. Johnson’s arguments in order, beginning with his challenge to the judge’s finding that he wasnot intoxicated when the gun was seized.

It is important to point out that the trial judge did not rule out that Mr. Johnson had been drinkingthe evening before. Instead, his conclusion that Mr. Johnson was not “so intoxicated while on the beige couch that he was unaware afirearm was beside him” (at para 31) was made with reference to the morning of January 17, 2018. In connection with this finding, thejudge correctly observed that none of the police officers provided evidence of Mr. Johnson’s impairment. The judge also pointed out that

“Mr. Johnson did not testify that he was intoxicated that morning” (at para 32). The latter statement was well borne out in the evidence and was worthy of comment by the judge given what Mr. Johnson said about his state the previous evening. The closest Mr. Johnson came to testifying about his state of intoxication at the point the police arrived at the apartment was during the following exchange: Q All right. So you indicate you come to and the police are at the door. Can you describe what happens after that?

A They just -- I remember them waking me up, telling me to put my hands in my -- put your hands in the air and like they were telling me what to do. I can’t really remember what -- I just remember that, is them telling me to put my hands in the air and then I can’t remember anything -- like, it’s kind of fuzzy, but -- and I remember going to the hallway and then getting handcuffed. [ 25 ] Later, Mr. Johnson also gave testimony that would have left the impression that he was not intoxicated the morning of the arrest.

When asked to describe what occurred when he was awoken by the officers, he stated as follows: A They woke me up and then they told me to put my hands in the air, so I put my hands in the air immediately ‘cause I seen them with gun on -- on -- guns out on me, so of course I’m not going to move around, like thinking they’re going to shoot me or something. Q Okay.

So you just -- A I put my hands up -- I put my hands up immediately, like -- like I actually came fully conscious , put my hands -- I knew what was going -- when I knew -- when I knew what was happening , I put my hands up. (Emphasis added) [ 26 ] Admittedly, Mr. Johnson’s testimony was that he was asleep and was awakened by the police officers. But I cannot, from the record, conclude that the judge misapprehended his evidence when he concluded that Mr. Johnson did not testify that he was intoxicated on the morning of the arrest. [ 27 ] Mr.

Johnson notes that there was no evidence “concerning elimination rates of the substances that [he] testified to having consumed in the days leading up to his arrest” and that his state in the morning “does not speak to his level of intoxication the previous night when he fell asleep on the couch”. However, the absence of evidence on elimination rates is hardly surprising given that the issue of Mr. Johnson’s alleged intoxication came up only in the context his testimony. [ 28 ] In relation to the fact that Mr.

Johnson’s fingerprints or DNA were not found on the gun, I accept that doubts may arise, or inferences may be drawn, because something is not present that logic or other evidence suggests should be if an asserted fact is true. However, Mr. Johnson’s argument ignores that there was evidence explaining the absence of fingerprint and DNA evidence in this case. In this regard, Sergeant Lorne Keen, a member of SPS’s Forensic Identification Unit, was asked to explain why no fingerprints or DNA were found on rifle.

He gave the following evidence: Q … Any idea or explanation for why the firearm would show up with absolutely no portions of any fingerprints? A Firearms are typically a poor substrate for fingerprints, whether it’s just because of the -- the type of metal or the wood or plastic, whatever they -- whatever it is. I find I have very poor results in trying to find fingerprints on firearms. And it can be the way they’re handled.

In this case, if it’s pulled from behind a couch cushion, those latent prints can be obliterated, depending on how it’s placed in our exhibits or how it’s transported to the station, they can be obliterated fairly easily. Say for example a -- a window at a crime scene where it’s -- it’s not moved around, I have better success on a nice smooth glass window than a patinad [ sic ] firearm. Q Okay. So no prints at all were found. What about any DNA? A I did receive the request for DNA. No DNA swabs were taken and I think that’s primarily because of my error, that was in the emailed request I received.

As I began to process that firearm on the 14th of February, that’s the date my father had died, so I was dealing with family, funerals and I either had forgotten to take the swabs or just had misread the email, I’m not certain, but no DNA swabs were taken by me. Q Okay. Any -- I guess what was your -- would you expect to find DNA from swabs taken off of a firearm? A The likelihood isn’t great, it would be similar to finding fingerprints on a firearm. By the same manner in which the latent prints can be obliterated, the touch DNA could as well.

And it’s going to depend too on how much that one offender has handled an item, how many other people handled it, how it was processed, how it was stored. So to say would I expect it? I know the label would -- would generally accept my swabs for analysis, but now whether they’ll be able to develop a profile, I wouldn’t say there’s a great likelihood of finding anything, but they certainly would have checked.

[29] In the face of this testimony, the judge cannot be faulted for attaching no significance to the absence of fingerprints or DNAevidence. [30] Here, the judge made several important findings of fact that bore on his conclusion that the Crown had established Mr.Johnson’s guilt beyond a reasonable doubt. These findings included that Mr. Johnson was not intoxicated when the officers entered theapartment, that Mr. Johnson did not immediately comply with the officers’ commands and that Mr. Johnson was fidgeting with his handsand was trying to hide the gun. He also concluded that Mr.

Johnson must have known about the gun because of its location, size anddimensions. He found that “a loaded firearm is a valuable and dangerous item, and it is not plausible that an individual would carelesslysurrender control of such an asset” (at para 42). These findings of fact were supported by the evidence to which the judge refers in hisreasons and were, in large measure, the product of the judge’s assessment of credibility. I see no basis to interfere with these individualfactual determinations. [31] Mr. Johnson’s argument that the verdict was unreasonable must be considered against these findings of fact.

The law requirestriers of fact to determine guilt beyond a reasonable doubt based on the whole of the admissible evidence adduced at trial. Here, anevidentiary basis existed for a reasonably instructed trier of fact to find Mr. Johnson guilty. I see no basis to intervene with the judge’sverdict. D. Conclusion on conviction appeal [32] I would dismiss Mr. Johnson’s appeal from his conviction. III. SENTENCE APPEAL A. The sentencing decision [33] After finding Mr. Johnson guilty, the judge adjourned sentencing to receive submissions.

As part of this, he specifically invitedcounsel to turn their minds to the possible application of R v Kienapple, (SCC), [1975] 1 SCR 729 [Kienapple]. TheCrown took the position that the judge should impose a sentence for all three convictions. It argued that Mr. Johnson should be sentencedto seven years on count 2, five years concurrent on count 1 and one year consecutive on count 3, resulting in a global sentence of eightyears. Mr. Johnson did not take issue with the Crown’s position as to the application of Kienapple.

He submitted that an appropriatesentence would be three years on count 2, two years concurrent on count 1 and one year consecutive on count 3, resulting in a globalsentence of four years. [34] Mr. Johnson was 22 years old when the offences were committed. He is a member of the Poundmaker Cree Nation. He grew upin Edmonton, Alberta, and on the Poundmaker Cree Nation reserve. Both sets of Mr. Johnson’s grandparents were residential schoolsurvivors. His paternal grandmother had alcohol issues and died of cirrhosis. Mr. Johnson’s father suffered from cocaine addiction.Mr.

Johnson has had no contact with his father since he was approximately four years old. He has five brothers and one sister with whomhe has minimal contact. Mr. Johnson’s main support is his mother. Mr. Johnson started using drugs at age 15, including methamphetamineand crack cocaine. This part of his lifestyle led him to involvement in gang life. [35] Mr. Johnson’s record showed six previous convictions. Included among these were four firearms-related offences committed in2013, all arising from the discharge of a prohibited sawed-off .22 calibre rifle, resulting in injury to a 15-year-old boy.

He was sentencedto 48 months of incarceration for these crimes and became subject to the lifelong weapons prohibition order that he was found by thejudge in this case to have violated. Mr. Johnson had been granted early release in connection with the 2013 convictions in 2016. He wasrecommitted and then released again in August 2017. Mr. Johnson completed parole on December 13, 2017. The offences giving rise tothis appeal were, therefore, committed 35 days after Mr.

Johnson had completed his sentence in relation to the 2013 weapons-relatedoffences and while he remained subject to the lifelong weapons prohibition resulting from those convictions. [36] After reciting the offences with which Mr. Johnson was convicted, the judge stated that it was “clear” to him that “there arecertainly Gladue factors that [he] must -- must consider”. He reviewed Mr. Johnson’s personal and family background as I havesummarized it above. [37] The judge noted that Mr. Johnson “felt the gang life offered him somewhere to belong” and “an opportunity to fit in”. Thejudge found that Mr.

Johnson’s recognition of these facts showed “particular insight”. The judge also took stock of Mr. Johnson’s“articulated goals”. These included to “address his substance abuse issues”, to “remove himself from gang life”, to “obtain his grade 12”and to pursue training in the culinary arts. [38] The judge then turned to the circumstances of the offences and summarized the positions taken by the Crown and Mr. Johnsonwith respect to sentence.

He stated that, with respect to Kienapple, considering the parties’ agreement that any sentence imposed for count1 should be served concurrently to that imposed for count 2, he would “proceed to impose sentence on all three counts”. [39] The judge summarized ss. 718, 718.1 and 718.2 of the Criminal Code. He turned to “authorities that have discussed theseriousness of the charge of possession of a loaded, prohibited weapon”.

He made specific reference to: R v Felawka, (SCC), [1993] 4 SCR 199; R v Chin, 2009 ABCA 226, 457 AR 233; R v Nur and R v Charles, 2015 SCC 15, [2015] 1 SCR 773 (publishedtogether); R v Brown, 2010 ONCA 745, 227 OAC 233; R v Dunkley, 2014 ONSC 4893; R v Ellis, 2016 ONCA 598, 340 CCC (3d) 279[Ellis]; and R v Johnson, 2013 ONCA 177, 297 CCC (3d) 87. He reminded himself that he must consider Mr. Johnson’s personalcircumstances, his “background, any Gladue factors, and any mitigating and aggravating factors” and that “sentencing is an individualizedprocess”. [40] The judge found several factors to be aggravating.

The first of these was Mr. Johnson’s criminal record, mentioningspecifically his previous convictions for firearm offences. The judge further noted that the offences for which Mr. Johnson was being

sentenced were committed only five months after he had been released from the penitentiary and only one month after his parole periodhad ended. The judge described this as “an aggravating factor that [he had] no choice but to consider very seriously”. He also found it to bean aggravating factor that Mr. Johnson possessed a firearm contrary to a lifetime prohibition order and that he had possessed a loaded gunin the presence of others after several hours of consuming alcohol and drugs. [41] On the other hand, the judge found that Mr.

Johnson’s young age and the fact that he had “show[n] some insight into [his]substance abuse and [his] gang involvement” to be mitigating factors. The judge stated that he was “moved” that Mr. Johnson had “somearticulated goals to tackle the personal issues, to better [him]self with further education and to look to some kind of training”. He said itwas “mitigating that [Mr. Johnson had] identified some goals to work towards”. [42] The judge reviewed several additional cases involving firearms offences and arrived at a “practical range, which [he would] beguided by, of seven to nine years”.

He then reminded himself of the “direction” given in R v Delorme, 2017 SKCA 3 from which hequoted the following passage: [68] The decisions in [R v Chanalquay, 2015 SKCA 141, [2016] 4 WWR 242], [R v Slippery, 2015 SKCA 149, 472 Sask R 181] and[R v Whitehead, 2016 SKCA 165, 344 CCC (3d) 1] all recognize that, in cases where incarceration is a necessity, honouring theGladue/Ipeelee principles can pose executory challenges. Chanalquay is clear in saying that s. 718.2(

e) of the Criminal Code does not leadto an automatic reduction in sentence simply because the offender is Aboriginal. However, if there is no alternative to incarceration in thecircumstances that prevail, the length of the jail term imposed on the offender must be carefully considered (para 34).

And, at para 36, itinvokes “the subtler idea of attempting to limit or minimize jail time by using restorative justice approaches when and if such approachesare appropriate.” [43] The judge reiterated that while he saw “the appropriate sentence as being a total range of seven to nine years”, he placed Mr.Johnson at the “low end of the range” on the basis of the mitigating factors. [44] Taking into account all of the above, the judge sentenced Mr.

Johnson to a term of imprisonment of six years for the offencecontrary to s. 95(1)(a), four years concurrent for the offence contrary to s. 92(2), and one year consecutive for the offence contrary tos. 117.01(1), for a global sentence of seven years, less credit for time spent in remand. B. Analysis [45] Mr. Johnson’s position is that the appropriate sentence for the offence contrary to s. 95(1)(

a) was four years and for the offencecontrary to s. 92(2) was a period less than four years to be served concurrently with the first offence. Mr. Johnson voiced no objection tothe sentence imposed in relation to the offence contrary to s. 117.01, nor did he suggest that it should not have been ordered to be servedconsecutively to the other sentences. Based on all this, Mr. Johnson says that an appropriate global sentence for his crimes was a period ofincarceration of five years, less credit for time spent in remand. [46] I begin my consideration of Mr.

Johnson’s appeal from this sentence by noting the limits that exist on an appellate court’sability to intervene in first-instance sentencing decisions. These are set out in R v Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 [Lacasse],and were reiterated in R v Friesen, 2020 SCC 9, 444 DLR (4th) 1, as follows: [26] As this Court confirmed in Lacasse, an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrablyunfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44).

Errors in principleinclude an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. Theweighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight toanother, the trial judge exercises his or her discretion unreasonably” (R. v. McKnight (1999), (ON CA), 135 C.C.C.(3d) 41 (Ont. C.A.), at para. 35, cited in Lacasse, at para. 49).

Not every error in principle is material: an appellate court can onlyintervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para. 44). If an error inprinciple had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if thesentence is demonstrably unfit. [47] Mr. Johnson’s first argument is that the judge erred in principle by following an incorrect process.

He says the judge shouldhave first instructed himself with respect to what the legal range of sentence would be for these offences and only then further instructedhimself with respect to the ranges for similar offences as established in the case authorities. [48] In my view, this argument confuses what is a legal range of sentences with what is an appropriate range for a sentencecommitted in specific circumstances. Mr. Johnson pointed to no authority that requires a sentencing judge to refer to the range of legalsentences. Trial judges are presumed to know the law.

I see nothing in the judge’s reasons that suggests he misunderstood any point of lawrelating to the sentence that was imposed on Mr. Johnson. [49] Second, Mr. Johnson points out that his history is “riddled with Gladue factors”. However, the judge expressly recognizedthese in his careful reasons. It is evident that he took them into account in fixing a sentence for the first two counts that fell below thepractical range he identified. I see no error in how the judge accounted for these factors in the sentence he imposed. [50] Lastly, Mr. Johnson complains about the “practical range” the judge identified.

He says it was too high and argues that thedecisions the judge had referred to are all distinguishable. [51] Consideration of this argument begins with an appreciation that the fixing of a sentencing range involves the exercise ofdiscretion. Justice Wagner (as he then was) made this point in Lacasse: [51] Furthermore, the choice of sentencing range or of a category within a range falls within the trial judge’s discretion and cannot initself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in adifferent range or category.

It may intervene only if the sentence the trial judge imposed is demonstrably unfit.

[ 52 ] This Court addressed the use of sentence ranges post- Lacasse in R v Parchomchuk , 2017 SKCA 101 , [2018] 3 WWR 7. There, Jackson J.A. stated: [44] In

summary, the failure to adhere to a sentencing range does not, on its own, constitute an error in principle justifying appellate intervention. Appellate intervention will only be justified if (

a) the sentencing judge committed an error in principle that has an impact on the sentence, apart from any consideration of the applicable range; or (

b) the sentence is demonstrably unfit. Reviewing applicable ranges and comparing past cases is regarded as one means of giving effect to the fundamental principle of proportionality but, in light of Lacasse and [ R v Lloyd , 2016 SCC 13 , [2016] 1 SCR 130 ], failure to place a sentence within a range may not on its own justify appellate intervention. [ 53 ] Here, while distinctions can be found between the circumstances in the cases cited by the judge and those of Mr. Johnson, in many respects, these differences do not enure to his benefit, as I will explain later. As well, Mr.

Johnson’s complaint relating to the appropriateness of the sentencing precedents relied on by the judge ultimately rings hollow because of the absence of case authority cited by him in support of his position that the sentence was too harsh. [ 54 ] To illustrate the first of these points, I would refer to Ellis , which sat at the bottom of the “practical” range the judge set. In that case, the accused had abandoned a vehicle after a police chase. When the vehicle was searched, it was found to contain a loaded semi- automatic firearm in a hidden compartment.

The accused was convicted of several offences, including possession of a loaded prohibited firearm contrary to s. 95 and violating a weapons prohibition order contrary to s. 117.01. Approximately seven years prior to the date of these offences, the accused had been convicted of several offences including possession of a loaded firearm.

The Ontario Court of Appeal summarized the aggravating factors, as found by the sentencing judge, to include “the appellant’s criminal record for the same offences; the outstanding bench warrants; the gun was loaded and ready to fire; the gun was possessed while driving around in public; the gun was concealed but available for quick access; and no evidence or explanation was offered for the possession of the gun” (at para 74).

The sentencing judge found the mitigating factors to include “the fact that there was no evidence that the gun was ever fired or removed from its storage location; the gun was not traced to any offences; there was no evidence of involvement in the sale of drugs; the manner of storage reduced its potential danger to the public; the offender had excellent prospects for rehabilitation; and the fact that he complied with strict bail conditions while his charges were pending” (at para 75). [ 55 ] Like in this case, the accused in Ellis received a sentence of six years for the firearms offences and one year consecutive for violating the weapons prohibition.

The Ontario Court of Appeal upheld the sentence, stating that the “circumstances of this case cried out for a significant penitentiary sentence” (at para 79). [ 56 ] In some ways, the circumstances in Ellis were more serious than here. Chief among these was that the accused was “driving in a residential area of Toronto with a loaded .25 semi-automatic handgun at the ready” (at para 79). On the other hand, there had been a significant gap in his record, a fact which the sentencing judge properly considered. In contrast, here, Mr.

Johnson had just finished a lengthy penitentiary sentence for possessing and recklessly discharging a sawed-off .22 calibre gun, injuring a 15-year-old boy. While this previous incident was more serious, it is evident that Mr. Johnson was not deterred by his previous conviction and sentencing. The circumstances called out for a sentence that took into account the need for individual deterrence. [ 57 ] Perhaps the most telling point against Mr. Johnson’s argument that the sentence he received was too harsh is this: while Mr.

Johnson criticizes the precedents referred to by the sentencing judge, he offers none himself to illustrate why the sentence given to him was inappropriately high. [ 58 ] In short, I find no basis to interfere with the sentence imposed in this case. IV. CONCLUSION [ 59 ] I would dismiss Mr. Johnson’s appeal from his conviction. I would grant him leave to appeal his sentence but dismiss that appeal also. “Leurer J.A.” Leurer J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Tholl J.A.” Tholl J.A.