Court of Appeal

Judge:

The Honourable Justice Jamie W.S. Saunders and

The Honourable Justice Cindy A. Bourgeois

The Honourable Justice David P.S. Farrar (Dissenting)

Appeal Heard:

September 12, 2014, in Halifax, Nova Scotia

Subject:

Sentencing – Fitness of Sentence – Aggravating Factors

Summary:

After being convicted at trial, the appellant was sentenced for two Criminal Code firearm offences, s. 94(1) – being an occupant of a vehicle in which he knew there was a firearm, and s. 90(1) – carrying a concealed weapon.  He was sentenced to serve a seventy-two (72) month term of imprisonment for the s. 94(1) conviction and a further concurrent term of twenty-five (25) months in relation to the s. 90(1) charge.

At trial, the appellant had been acquitted of two charges under s. 117.01 – possession of a weapon while prohibited, due to the Crown’s failure to produce evidence of his existing prohibition orders.  In her decision, the sentencing judge referred to the fact that the appellant was subject to prohibitions against the possession of firearms, at the time of the offences, and clearly considered this to constitute an aggravating factor in reaching a disposition.

Issues:

(1)        Did the sentencing judge err by conflating the s. 94(1) conviction, with a more serious charge under s. 95(1)?

(2)        Did the sentencing judge err by failing to appreciate or explain the disparity of sentence imposed as between the s. 90(1) and s. 94(1) convictions?

(3)        Did the sentencing judge err in principle by taking into consideration aggravating factors which had not been “proven”?

(4)        Is the sentence of seventy-two (72) months demonstrably unfit?

Result:

Appeal dismissed.  The majority found that the sentencing judge did not mistakenly sentence the appellant for a s. 95(1) offence, nor did she err in principle by imposing disparate sentences for the two offences for which convictions were entered.  Further, by virtue of the submissions made by the appellant’s counsel at the sentencing hearing, the existence of his previous firearms prohibitions were placed before the court, and accordingly, the sentencing judge’s reference thereto, did not trigger appellate intervention.  The majority further found that the sentence imposed was not demonstrably unfit given the circumstances surrounding this offence and this offender.

Farrar, J.A. dissenting, would have allowed the appeal, finding the sentence imposed was demonstrably unfit, failing to recognize the principle of parity.  It was further an error in principle to consider on sentencing as an aggravating fact, the existence of unproven prohibition orders.  A sentence of thirty-six (36) months, less remand time would have been imposed.