NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Smith, 2006 NSCA 95
Date: 20060726
Docket: CAC 258593
Registry: Halifax
Between:
James William Smith
Appellant
v.
Her Majesty The Queen
Respondent
Judges: Saunders, Oland and Hamilton, JJ.A.
Appeal Heard: May 10, 2006, in Halifax, Nova Scotia
Held: Leave to appeal granted; Appeal against convictions dismissed per reasons for judgment of Oland, J.A., Saunders and Hamilton, JJ.A. concurring; Appeal against sentence dismissed per separate reasons of Saunders, J.A.; Hamilton, J.A. concurring; Oland, J.A. dissenting.
Counsel: Mark Knox for, the appellant
Daniel A. MacRury, Q.C. for the respondent
Reasons for judgment:
[1] On August 21, 2003 HRM police, as authorized by a search warrant, made a "hard entry" into a townhouse residence. They took a battering ram to the front door at 3:00 in the morning. The appellant was the only person found on the premises. During their search of the residence, the police found a nine millimetre handgun outside a bedroom.
[2] Justice Peter Richard of the Supreme Court of Nova Scotia found the appellant guilty of the three offences with which he had been charged, namely careless storage of a firearm (s. 86(2) of the Criminal Code), possession of a prohibited or restricted firearm (s. 95(2)(a)), and possession of a weapon obtained by commission of an offence (s. 96(a)). He sentenced him to three years in a federal institution.
[3] The appellant appeals the convictions and applies for leave to appeal against sentence, and if granted, appeals against the sentence. For the reasons which follow, I would dismiss the appeal against conviction, but would grant leave to appeal against sentence and would allow the appeal against sentence.
Background
[4] Detective Constable Michael Sanford swore the Information to Obtain a Search Warrant of 32 Chadwick Place in Halifax. It asserted that the appellant resided at the residence to be searched, and that a confidential informant had seen the appellant there with a nine millimetre handgun on previous occasions. The warrant which subsequently issued allowed the police to enter the premises, at night, and without announcement.
[5] The residence is a multi-level townhouse unit. Upon entering, one sees stairs to the basement on the left side of the entry way. Another set of stairs, to the right, leads up to a landing. A left turn at that landing, and up another set of stairs, takes one to the second level of the townhouse where several bedrooms are located.
[6] The townhouse was dark when the police effected entry, using a sure-fire light to light up the residence. The appellant appeared in the vicinity of the landing to the second level. Following police commands, he came out of the residence. A nine millimetre handgun was found outside one of the bedrooms on the second level, close to the wall. Its handle or butt contained a loaded clip. There was no shell in the chamber.
[7] No one else was found in the townhouse. The police did not see the appellant come from any particular bedroom on the second level. According to them, only one bedroom appeared to be occupied. A Nova Scotia Health Card, belonging to the appellant, was found in a dresser by the bed in that bedroom. In their search of the premises, the police did not find any papers which indicated that anyone else lived there.
[8] The trial of the appellant began with the appellant’s unsuccessful Charter applications. The evidence the Crown then presented included that of the Emergency Response Team of the HRM Police Service, other officers, a firearms expert, and the owner of the handgun. The sole defence witness, Jason MacDonald, testified that it was he who had rented and lived in the townhouse. His evidence was that the appellant had also lived there for several months, in an adjacent bedroom on the same level. According to Mr. MacDonald, he had purchased the handgun on the street. He testified that before the police arrived, he had left the townhouse that night while the appellant was asleep. When he went out, he left the handgun outside his bedroom door. On approaching the residence on his return, he saw flashing police lights in his driveway, turned, and got out of there. He never asked anyone, either then or later, what went on or why. He did not get in touch with the appellant, nor did he contact the police to ask why they had broken down the door to his place. After visiting the townhouse a couple of days later, he left for Alberta before the end of that month. He did not tell anyone, not even his family, of his departure. He did not come back to Nova Scotia until the trial more than two years later.
[9] Immediately following the conclusion of the evidence, the trial judge convicted the appellant of all three charges and adjourned sentencing to a later date. The appellant missed the appointment for his pre-sentence report, and agreed to proceed to sentencing. He received a sentence of three years in a federal institution. The appellant appeals his conviction and his sentence.
Issues
[10] According to the appellant, the trial judge erred by failing to properly and fully consider and determine one of his applications pursuant to s. 8 of the Charter, and by failing to provide adequate reasons, thereby allowing evidence to be admitted that ought not to have been heard at the trial. His other grounds of appeal against conviction allege that the trial judge materially misapprehended the evidence and/or failed to appreciate important evidence, that his reasons were inadequate, and that the verdict was unreasonable. On his appeal against sentence, the appellant argues that the sentence is demonstrably unfit and/or manifestly excessive, and that the trial judge erred in applying the principles of sentencing.
Charter Application
[11] At the outset of the trial, the appellant unsuccessfully asserted that the Information to Obtain should not have resulted in the issuance of a search warrant. His Charter application had sought the exclusion of evidence (the firearm) that was fundamental to all three charges. Before this court, he argues that the trial judge erred on the issue of whether the justice of the peace who issued the warrant had been misled by the officer who swore the Information to Obtain on which the warrant was founded, and that the trial judge failed to provide adequate reasons.
[12] In the Information, Detective Constable Sanford indicated that the appellant had “an extensive criminal record.” The appellant’s criminal record of some 40 convictions was not included in the Information. The officer did not advise the justice of the peace that the record was not for crimes of violence or weapons offences. Nor did he indicate that two months earlier, he had taken part in a traffic stop of the appellant, one purpose of which was to search and locate a handgun, and that no weapon had been found.
[13] Asked why he used the word “extensive,” the officer said that he knew the appellant had “a long record” and of his “numerous involvements” with the police and the court system. As to the prior traffic stop, he said that it did not cross his mind to include it. In his view, that was a different set of circumstances.
[14] On that Charter application, the trial judge heard Officer Sanford on direct and cross-examination, and received submissions from the Crown and defence counsel. He referred to R. v. Shiers, [2003] N.S.J. No. 453 (N.S.C.A.), in which Justice Fichaud outlined the appropriate test to be applied by the reviewing judge as follows:
[10] Whether the reviewing court applied the appropriate standard of review to the decision of the lower tribunal is an issue of law which is reviewable by this Court under the principles stated in Housen v. Nikolaisen, [2002] 2 S.C.R. 235 at ¶ 8 ‑ 9 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. 18, 2003 SCC 19 at ¶ 43 ‑ 44.
[11] In R. Garofoli, [1990] 2 S.C.R. 1421 at p. 1452 Justice Sopinka stated the basis upon which a reviewing judge may reverse the issuance of a search warrant:
... The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:
If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre‑conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non‑disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. (emphasis in original passage)
[12] Later decisions have adopted these principles from Garofoli: R. v. Grant, [1993] 3 S.C.R. 223 at 251; R. v. Morris (W.R.) supra (NSCA) at p. 12.
[13] By wording the test as whether the issuing judge "could" determine that a search warrant should issue, Justice Sopinka assigned to the issuing judge the function of drawing reasonable inferences from the evidence in the Information.
[15] Here the decision on the Charter application focussed on the ability of the reviewing judge to consider if the issuing justice could have drawn inferences from paragraphs in the Information to Obtain, even though the (inferred) facts were not specified. The trial judge stated:
Putting – putting my – myself in the place of the reviewing judge in this particular case and reviewing the – the information to Obtain a Search Warrant and just opposing that against the Shiers case I can only – I can only conclude that if I was to – that if I was upset or invalidate the Search Warrant I would be doing precisely what the – what the reviewing judge did in Shiers and I would be substituting my discretion for that of the issuing judge which would be an error in law and accordingly, I – I dismiss the application under Section 8 and state that the – that the Search Warrant was validly issued.
[16] As the appellant acknowledged, the trial judge made no error in his identification and application of this test. He argues the decision on his Charter application failed to provide adequate reasons, and did not address his submission that there had been a misleading of the justice of the peace by the affiant, intentional or otherwise. Moreover, the decision did not deal with other aspects relating to the Information to Obtain, such as contemporaneousness, corroboration and detail.
[17] I reject the argument that the judge’s reasons were inadequate because he did not address each and every argument made by counsel. The following passage from R. v. Newton [2006] O.J. No. 1008 (Ont. C.A.) is instructive:
[3] Attacks on the adequacy of trial judges’ reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are met, any shortcomings in the reasons are not per se cause for reversal.
[4] There is no obligation on the trial judge to answer each and every argument made by counsel in reasons for judgment. . . .
[18] Even if I were to assume, without deciding, that Officer Sanford had mischaracterized the appellant’s record as extensive and that the prior traffic stop was relevant and should have been included in the Information to Obtain, that would not automatically vitiate the warrant to search. In R. v. Morris (1998), 173 N.S.R. (2d) 1 Justice Cromwell of this court discussed whether inaccurate and misleading information invalidates a warrant. He stated:
[41] This approach was adopted in the wiretap cases, Garofoli, supra, and R. v. Bisson, [1994] 3 S.C.R. 1097; (1995), 94 C.C.C. (3d) 94. For example, in Bisson at p. 1098, the Court stated:
“... errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the ... authorization. (emphasis added)”
[42] The same principle has been adopted by the Court in search warrant cases: R. v. Grant, supra and R. v. Plant, [1993] 3 S.C.R. 281. These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.
[19] Furthermore, even assuming that there had been an infringement of s. 8 of the Charter, it is my view that the appellant has failed to establish on the balance of probabilities that to admit the evidence would bring the administration of justice into disrepute and therefore should be excluded pursuant to s. 24(2). See R. v. Collins, [1987] 1 S.C.R. 265.
[20] I would dismiss the appeal against the trial judge’s decision on the appellant’s Charter application.
Conviction
[21] The appellant’s arguments on his remaining grounds of appeal – material misapprehension of the evidence and/or failure to appreciate important evidence, inadequate reasons, and unreasonable verdict – relate to the trial judge’s assessment of the evidence concerning possession of the handgun. His decision began with a recounting of the charge with three counts involving firearms and his comment that the evidence at trial had taken a day and a half. The judge then considered the defence evidence, that of Mr. MacDonald:
At the risk of sounding flippant, I would say that Mr. MacDonald’s evidence has more holes in it than a piece of Swiss cheese and I will review that evidence briefly.
[22] The judge summarized Mr. MacDonald’s testimony that the residence was his, that the appellant was his roommate, that on his return after having left the residence in the early hours of August 22, 2003 he noticed police vehicles and took off, and that after returning briefly a couple of days later, he left suddenly for Alberta without telling his family. His decision continued:
Over twenty-six months later, this past Saturday, when the Crown case was just about complete, Mr. MacDonald said he received a call from Mr. Smith and that was the first he had heard of anything respecting any charges or any – with respect to possession of a firearm and he agreed to come to court.
A couple of questions that occur to me at this time is, (a), if – if Mr. MacDonald left suddenly without notifying anybody, how did anybody, including the accused, know where he was on last Saturday in order to phone him and – and communicate with him? That is not in evidence and I can only say that – that he was less than truthful in saying that he had not had contact with the accused in the intervening twenty-six months.
Further, there – there was no indication or no indicia of possession by MacDonald in the residence which the police – in which the police found the accused and the – the weapon on the 22nd of August. After what I consider to be a fairly thorough search, the police indicated that only one room in that residence appeared to have been occupied. When questioned about the occupancy of the room, Mr. MacDonald said he occupied the room which was just immediately off the landing as shown in the – in the photograph number two as – as presented.
Now it’s interesting that just next to that landing or – or just out of the sight of that landing the – the police found the prohibited weapon, the nine-millimetre semi-automatic handgun.
Now Mr. MacDonald indicated that he had bought this handgun on the street for a hundred-and-fifty-dollars. We know now that the handgun was stolen. It – it was the property of John Gauthier who had not seen it since early – early in the year 2000 when it was – when his apartment was broken into and the only things removed were handguns and Mr. Gauthier was the – the legal registered owner of this weapon and I’m satisfied from his evidence that there’s no question that the weapon was his and therefore the weapon had to be stolen.
So much for the evidence of – of Mr. MacDonald.
[23] The judge clearly rejected the evidence of the sole defence witness. He then went on:
Now even if I accept the evidence of Mr. MacDonald that he was the owner of that gun, it is clear beyond a reasonable doubt that the only person who could possibly have been in possession of that gun on the – the time in question was the accused. He – he almost had to step over it when he appeared at the – at the landing at the top of the stairs as shown in – in photograph two. He would almost have to step over it to get out to the – to where the police ordered him to – to show himself.
So I’m – I’m satisfied and I’m satisfied beyond a reasonable doubt that the – that the Crown have – have proved the – the – the – every element of the offences charged here in the indictment and accordingly I have no – I have no reservation in finding the – the accused guilty as charged.
As I say, the – the – it’s – it’s trite to say that – that a loaded semi-automatic weapon located on the – on the floor outside a bedroom in – in a house does not qualify as – as properly stored and there’s no question – in fact there’s no question of the fact that this was – that the accused was in possession of a loaded restricted firearm as stated in count number two and certainly the evidence is clear that the – that the – that the weapon was – had to be obtained by the commission in Canada of – of an offence contrary to Section 96(a) of the Criminal Code.
So in conclusion I – I just ‑ I’m satisfied that the – the Crown have proven beyond a reasonable doubt the guilt of the accused in each of the counts.
[24] A misapprehension of evidence may lead to a miscarriage of justice if it plays an essential part in the judge’s reasoning: R. v. D.D.S., [2006] N.S.J. No. 103 (C.A.) at ¶ 32. See also R. v. S.D.D., [2005] N.S.J. No. 200 (N.S.C.A.) at ¶ 9-12.
[25] I reject the appellant’s argument that the trial judge misapprehended the evidence of Jason MacDonald. His decision demonstrated that he understood the significance of the credibility issue, and clearly set out why he did not find that witness’ evidence believable.
[26] Nor can I accept the appellant’s submission that the judge’s reasons were inadequate. They were not lengthy nor detailed, but they made it clear that the defence evidence had been considered, including on the ultimate issue of reasonable doubt. The reasons provided the parties with a reasonably intelligible basis for the conviction and permitted meaningful appellate review of its correctness: R. v. Sheppard, [2002] 1 S.C.R. 869 (S.C.C.). While not a model of decision-writing, the reasons established the pathway through the evidence and law by which the judge arrived at his decision.
[27] Contrary to the appellant’s suggestion, his reasons demonstrate that the trial judge considered the requisite elements of the offences with which the appellant was charged, and that he was not left in a reasonable doubt. While the elements were not itemized, he stated that he was satisfied beyond a reasonable doubt that the Crown had proved every element of those offences. Moreover, he expressly turned his mind to the concept of possession. The trial judge disbelieved the testimony of Jason MacDonald. The police evidence was that only one bedroom of the residence was occupied, the only person on the premises when the officers made their unannounced entry at 3:00 in the morning was the appellant, the handgun was found outside a bedroom and in close proximity to him, and the only papers discovered in their search of the premises belonged to the appellant. In these circumstances, the inference of possession made by the trial judge is a reasonable one.
[28] I would grant leave to appeal against conviction, but dismiss the appeal against conviction.
Sentence
[29] Section 95(2) establishes a minimum punishment of imprisonment for a term of one year for possession of a prohibited or restricted firearm with ammunition. When the police entered the townhouse, the appellant was found within three feet of a firearm with a loaded magazine, on the floor. Defence counsel described him as a 39 year old with a significant drug addiction. His prior criminal record contained 49 prior convictions, including many break and enters, numerous drug offences, and several breach of court orders. He had been sentenced in the past to federal penitentiary terms. However, only one of the 49 priors was for a crime of violence – the appellant received probation for an assault charge in January 1996. In the last ten years his only convictions were for driving while prohibited, and driving while suspended. He had no prior firearms charges.
[30] Before the trial judge, the Crown argued that from his record, one could easily take the notion that the appellant is a habitual criminal. It recommended a total sentence in the range of three years for the three offences. Defence counsel suggested two years.
[31] While both the Crown and defence counsel made submissions at the sentencing hearing, neither provided the judge with any case law. The sentencing decision was brief, its essence contained in a single paragraph:
The record is probably one of the longest that I’ve had before me over the years. Granted, I accept [defense counsel’s submissions] that this is the first offence for a firearm but I – I’m not going to use that in mitigation because his offences have really gone the – the full gamut and this is – just happens to be another in the long line of varying offences which the – of which the accused has been convicted.
In the result, the judge sentenced the appellant to three years on each of the counts under ss. 86(2), 95(2) and 96, to run concurrently.
[32] The purpose of sentencing appears in s. 718, and the principles of sentencing in ss. 718.1 and 718.2 of the Code. Section 718.1 reads:
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Section 718.2 calls on the sentencing court to also take into consideration certain other principles. As Fraser, C.J. observed in R. v. Brady (1998), 15 C.R. (5th) 110 at p. 122 (Alta. C.A.):
[25] . . . Only one of the sentencing principles in Part XXIII is mandatory. Though others are to be taken into account, they are assigned no relevant weight. Every sentence, conditional or not, must meet the fundamental and overarching sentencing principle: proportionality. Some commentators call it the “just desserts” principle.
[33] As is often the case in sentencing, no decision with equivalent facts could be found. However, a review of decisions dealing with firearms offences discloses factors which are not present here. Nevertheless, the length of the sentences in those cases is lower, or roughly equivalent, but only in much more serious circumstances. For example:
(a) In R. v. D.V., [2005] A.J. No. 1068 (Alta. Prov. Ct.), the 20 year old offender was convicted of several charges related to the possession and use of a loaded prohibited firearm. During an altercation outside a social establishment, he produced the gun, pointed it at the doorman, and then fled the scene. The trial judge indicated that his relative youthfulness was outweighed by his extensive criminal record: two convictions for assault, four for weapons related offences, and some 20 convictions for failure to comply with dispositions, recognizances and prohibition orders. Sentence: a global sentence of four years’ imprisonment.
(b) In R. v. Grant, [2005] A.J. No. 837 (Alta. Prov. Ct.), the offender who pled guilty to two firearms offences, one under s. 95 and the second under s. 96, had discharged a firearm into the ground and then moved some five to seven blocks, all the while holding the loaded firearm, through an area frequented by pedestrians and motor vehicles. His record was described as “unenviable.” Sentence: one year in prison for the first offence, 18 months for the second, and three months for each breach of recognizance charge.
(c) In R. v. Raglon, [2001] A.J. No. 1318 (Alta. C.A.), the offender had a loaded prohibited firearm in a public place. It discharged when he threw it away. He was convicted under ss. 86(1), 90(1) and 95(1). He had a prior conviction for possession of a weapon (a knife). Sentence: on appeal, the overall sentence of 12 months’ imprisonment and 12 months’ probation in addition to five and a half months’ pre-sentence custody was upheld.
(d) In R. v. Harvey, [2004] O.J. No. 5786 (Ont. Sup. Ct. Jus.), the 24 year old offender was convicted of possession of a handgun obtained by theft, possession of a restricted firearm (Colt 45 semi-automatic) without authorization, misleading police by falsely identifying himself, and possession of a restricted weapon (switchblade). The loaded handgun had been concealed in a car. He had a criminal record. Sentence: 18 months in totality (15 months for the second offence, three months for the fourth, and concurrent sentences of six months and three months for the first and third respectively).
(e) In R. v. Spence, [2003] O.J. No. 5999 (Ont. Sup. Ct. Jus.), the 23 year old offender pled guilty to inter alia, possession of a firearm while under an order for prohibition, and possession of a loaded, prohibited firearm. His criminal record including aggravated assault and three convictions for robbery. He had been on probation at the time of the offences. Sentence for these two possession offences: ten months’ incarceration.
(f) In R. v. Hughes, [2002] O.J. No. 3347 (Ont. Sup. Ct. Jus.), the offender, a member of a motorcycle gang, had previously received a 99 year weapons prohibition. The police found six explosive detonators, four rifles, a semi-automatic handgun, an assault semi-automatic pistol, and a “Streetsweeper” semi-automatic shotgun. He pled guilty to charges including possession of an explosive substance and possession of firearms, a restricted weapon and a prohibited device while prohibited and possession of a firearm, prohibited device and loaded restricted firearm without a license. Sentence: 30 months’ imprisonment on all counts concurrent.
(g) In R. v. Murphy, [1981] N.S.J. No. 32 (N.S.C.A.), the offender who had carried a sawed-off shotgun concealed down his leg pled guilty to unlawful possession of a prohibited weapon. His record listed 16 convictions, including possession of an offensive weapon, possession of a sawed-off shotgun, and robbery. Sentence: on appeal, the original sentence of one years’ imprisonment was increased to three years’ imprisonment.
(h) In R. v. Carter (2000), O.J. No. 1626, (Ont. Sup. Ct. Jus.), the offender had shot his unarmed victim four times. He pled guilty to possession of prohibited weapon, aggravated assault, and use of a firearm in committing the assault. Sentence: at trial, three years incarceration for the possession, concurrent with nine years for the aggravated assault, and one year consecutive for the use of the firearm. Appeal of sentence for the aggravated assault was dismissed (Carswell Ont. 1651).
(i) In R. v. Thurston, [2004] B.C.J. No. 2097 (B.C.C.A.), the offender pled guilty to possession of a firearm while prohibited, carrying a concealed weapon, possession of a restricted weapon without a license, and possession of an illegal substance (heroin). The loaded handgun was proven to be stolen, and at the time he had been on probation following a drug-related manslaughter conviction. Sentence: on appeal, the custodial sentence of 44 months was upheld. The sentence was described as “approaching the upper limit” but not “outside the range.”
[34] The fundamental purpose of sentencing, as set out in s. 718 of the Code, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. Any offence which involves weapons is one which endangers public safety. Parliament’s view of the seriousness of weapons-related offences and the associated danger are reflected in the statutory minimum of one year’s imprisonment for possession of a prohibited or restricted firearm with ammunition. Not surprisingly then, denunciation and general and specific deterrence are among the paramount objectives when a person is sentenced in regard to offences relating to firearms.
[35] As indicated earlier, the fundamental principle of sentencing is proportionality to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). The appellant was not found, nor did he appear, with the gun in hand. It was not on him, nor was it concealed. He did not point it at anyone. It was not discharged. His criminal record is significant and lengthy. However, it includes only one violent offence, an assault ten years ago, which resulted in probation. He has never been convicted of a weapons related offence, nor has he been subject to a weapons prohibition. Nor was he on probation. These are all important distinctions from the sentences reviewed above, where the duration was either less or equivalent.
[36] As is apparent from his sentencing decision, the judge focussed solely on the length of the appellant’s criminal record, and the variety of offences for which he had been convicted. In R. v. Stewart, [2003] O.J. No. 1958 (Ont. C.A.), the court considered a sentencing appeal which involved insufficient facts stated to explain a sentence; a failure to apply the principles of sentencing; and sentencing on the volume of the criminal record rather than the substance of the defendant’s past crimes:
9. The appellant had a substantial criminal record [not set out in the decision] and it certainly was an aggravating factor that needed to be considered in imposing sentence. Without knowing what the trial judge thought of this offence, as he gave no reasons, he appears to have sentenced the appellant on his record, without consideration for the particulars of the offence. It must be remembers that the appellant had already paid the price for his earlier convictions. (Emphasis added)
[37] The trial judge here gave no consideration to the fact that considerable time had passed since the appellant had been convicted of any offence, other than driving offences. Clayton Ruby, Sentencing (Sixth Edition), (Toronto, Butterworths, 2001), sets out the reasoning behind the “gap principle,” and provided illustrations from the case law:
8.78 Since both sentencing and crime are human endeavours, it is natural for the courts to give credit to someone who has made an honest effort to avoid conflict with the criminal law. In the nature of things, an effort such as this will often not be completely successful, but if a substantial period of time passes without convictions, this is often a matter which will be taken into consideraton. As put by Cross: “Assuming that it is not merely the outcome of lucky non-detection, the trouble-free period shows in these cases that the offender is not a professional criminal, and therefore the public needs less protection from him.” It shows that there is some hope of rehabilitation.
. . . .
8.80 In Kennedy, the accused was convicted of manslaughter and sentenced to two years less one day. The Crown appealed, bringing forward a record involving jail sentences over a period of years for such crimes as assault, breaking and entering, escape custody, mischief, wilful damage and another breaking and entering. All criminal involvement had ceased for a five-year period prior to the manslaughter conviction. In these circumstances the Court of Appeal determined that: “after having gone five years without involvement in the law, the past record should not be a too material factor in determining an appropriate sentence”.
8.81 In Hodson, the court had to evaluate a lengthy record, but noted that, though there had been more recent convictions, there had earlier been an eight-year period without convictions and indeed “some intervals in which he is known to have got an honest living.” The court regarded this interval as “a new start” and was disposed to show leniency. Accordingly a term of five years was reduced to 12 months’ imprisonment. This case was approved by the Ontario Court of Appeal in Harrell, where an offender with a record for similar offences was sentenced to five years’ imprisonment. There was a gap of 11 years where he was not convicted of “any serious offence” followed by further convictions for breaking and entering and uttering two forged cheques — uttering being the very offence of which he had been convicted and for which he now stood sentenced. The court, noting this 11-year gap which did not immediately precede the conviction at bar, came to the conclusion that this “long interval, free from serious convictions is entitled to due weight” and noting other factors as well, reduced the sentence to three years. In Re Morand and Simpson, the offender, Simpson, had a nine-year gap between the present offence and his only previous offence. In the result the three-year sentence for breaking and entering was reduced to two years less one day. Similarly in Murray, the court noted the offender “deserves credit” for a one-and-a-half-year period free from crime following his marriage, a period which had been interrupted only by the crime under consideration. A “change in lifestyle” over a seven-year period is properly reflected in the sentence imposed.
8.82 Not all periods of abstention from crime operate in mitigation of the penalty that might otherwise be imposed. . . .
8.83 For the gap principle to come into effect the period under consideration need not be totally crime free. A nine-year period marred only by minor offences, such as causing a disturbance and driving a motor vehicle while disqualified, merited consideration in Graveline, Bezaire and Cassidy. The court concluded ‘it would appear that since then he has been making some effort to stay out of trouble or at least he has not been in as much trouble since then.” Accordingly a one-year period was reduced, for this reason among others, to six months. Similarly in Harnett, the court gave effect, upon a charge of possession of stolen cooper wire, to the gap of 14 years marred only by offences of disorderly conduct that were attributable to an alcohol problem, but dishonesty had not been a part of them. In the result a sentence of two years with three years’ probation was reduced to one year followed by two years’ probation.” (Emphasis added)
[38] The offences for which the appellant was convicted involved weapons and thus included the potential for endangering the safety of the public. The seriousness of those offences is not to be diminished. Nor can the fact that the appellant has a substantial criminal record be disregarded. Nevertheless the sentence is not a proportionate one.
[39] In considering the appropriate sentence, I am mindful that this court is not to “tinker” with a sentence and the deference to be accorded the sentencing judge. However, having examined the case law, it is my view that this sentence is clearly excessive. The jurisprudence on sentencing for such firearms offences, in the circumstances of this case, would lead to the appropriate sentence being two years’ imprisonment rather than the three ordered by the sentencing judge. A reduction in sentence of one year’s incarceration, equivalent to one-third of the sentence that was handed down following trial, is undoubtedly a substantial difference.
[40] I would grant leave to appeal against sentence, would allow the appeal against sentence, and would vary the sentence to two years’ imprisonment concurrent for all three charges.
Oland, J.A.
Saunders, J.A.:
[41] Justice Oland has thoroughly reviewed the facts. I concur with her dismissal of the appeal against convictions. However, with great respect, I cannot support her disposition regarding sentence. For the reasons that follow, I would grant leave, but would dismiss the sentence appeal.
[42] The standard of review of a sentence on appeal under s. 687(1) of the Criminal Code is a deferential one. In order to vary a sentence, it must be demonstrably unfit.
[43] There is a legion of case law to remind us that we who sit on appeal are prohibited from tinkering with sentences. I need mention only two. Beginning with R. v. Shropshire, [1995] S.C.J. No. 52, which followed the lead and adopted the reasoning of this court in such cases as R. v. Pepin (1990), 98 N.S.R. (2d) and R. v. Muise (1994), 94 C.C.C. (3d) 119, it is now beyond doubt that when considering the fitness of a sentence imposed by a trial judge, we will not interfere unless the sentence imposed is clearly excessive or inadequate.
[44] These same directions were repeated by the Chief Justice in R. v. C.A.M. (1996), 105 C.C.C. (3d) 327 (S.C.C.). An appellate court is not given free rein to modify a sentencing order simply because it feels that a different order ought to have been imposed. A high degree of deference is obligatory. The reasons are obvious. Sentencing is an art. It is clearly one of considerable discretion. As well, sentencing “is a profoundly subjective process.” The trial judge has the advantage of having seen and heard all of the witnesses whereas we who sit on appeal can only base our assessment upon a written record. The sentencing judge “also possesses the unique qualifications of experience and judgment,” having served “on the front lines of our criminal justice system.” For all of these reasons a sentence should only be varied “if the court of appeal is convinced it is not fit.”
[45] Oland, J.A. suggests that the sentencing judge in this case erred in law by neglecting to mention or apply certain fundamental principles, especially proportionality; failing to state the facts upon which the sentence was based; over‑emphasizing the length of the appellant's criminal record; and by imposing a sentence that was excessive.
[46] I say he did not. Justice Richard is a veteran jurist with almost 30 years experience on the bench. He sentenced Mr. Smith immediately after hearing submissions from counsel. This followed a one and a half day trial over which he had presided. The sentencing had been adjourned at the request of Mr. Smith’s counsel to have a pre-sentence report prepared for the assistance of the court. Mr. Smith failed to keep his appointment. On consent, sentencing proceeded without the pre-sentence report and was therefore confined to counsels’ submissions, the evidence at trial, and Mr. Smith’s criminal record which was introduced as an exhibit at the hearing. There can be no doubt that matters were fresh in everyone’s mind.
[47] Counsel chose not to provide the sentencing judge with any case law and made no reference to jurisprudence. Neither counsel spent much time in submissions. Mr. Smith’s lawyer’s remarks fill just 43 lines of the transcript. The Crown’s arguments are not much longer. This was not a difficult case. The appellant was convicted of possessing a loaded, restricted firearm. During a breach-entry by the police emergency response team while executing a no-knock warrant at three o’clock in the morning, police seized a loaded 9 millimetre, semi-automatic pistol, found at arm’s length from where the appellant was standing, clad in his underwear, at a doorway to the room he occupied in the residence.
[48] Both counsel for the Crown and counsel for the offender, albeit briefly, emphasized the relevant features of the case, the circumstances of the offence and the offender, the minimum penalty prescribed by Parliament, and what each claimed to be a proper sentence. The essence of the Crown’s representations were:
I’d submit that this was a very dangerous situation involving a very dangerous weapon. . . . Parliament has made this subject to a minimum penalty of incarceration, one-year for an indictable offence. Very few offences obviously contain such a minimum punishment.
Looking at the accused I note his prior criminal record, My Lord, containing some forty-nine prior convictions by my count, including many B & E’s numerous drug offences, several breaches of court orders. The accused has been sentenced in the past to federal penitentiary terms on several occasions. I submit that from his record one can easily take the notion that the accused is a habitual criminal.
. . . denunciation and deterrence are the most important factors in sentencing in a situation such as this. Having regard to the facts of this case, the nature of the offence and the accused’s record I submit that the least restrictive punishment being one-year in custody is not appropriate. I submit that the accused should receive a federal sentence and I submit that that sentence should be in the range of three-years.
[Underlining mine]
[49] Later the Crown Attorney clarified his position and said he was seeking a total of 36 months’ imprisonment in distinct but identical penalties on the three separate offences for which the appellant was convicted, to run concurrently.
[50] Counsel for the appellant, who also represented Mr. Smith at his trial, is a very experienced criminal law practitioner. He did not refer the sentencing judge to any case law. The whole thrust of both counsels’ submissions came down to what term of imprisonment was called for in the circumstances.
[51] Considering its brevity, I will reproduce the submission made by Mr. Smith’s lawyer verbatim:
Mr. Smith is thirty-nine- years- of-age. Mr Smith has a criminal record. Mr. Scheuer has provided this to you today. You’ve seen it before. In the last ten years, My Lord, or even going back further - well, let’s just look at it overall. Of the forty-nine charges on this three-page document, one is what could be called a crime of violence. That’s an assault charge on January 26th of ‘96. He got probation for that.
Mr. Smith is - [coughing] - pardon me - obviously well known in the criminal justice system. He is someone who over and over has been said has had a significant drug addiction. That has led to his crimes of property that permeate his criminal record. In the last ten-years the essence of his crimes however are driving while prohibited, driving while suspended. That’s the type of crime that he’s been mostly convicted of.
I think, My Lord, we’re all aware that when there is a range of sentences available under the Code - here we’re dealing with the minimum of one-year and Your Lordship has to give him at least a year and there’s no way around it. There’s no conditional sentences. We’re all aware of that.
To go from the bottom line - to go from - to move from twelve months up there has to be something extremely aggravating to do so. I have heard Mr. Scheuer’s submissions. I think first of all all three of these charges are said by virtue of the indictment to have occurred on August 22 of 2003. We’re not dealing with a range of you know - beginning for example with something earlier in time so as to capture somehow a continuing offence with respect to the stolen firearm. We’re dealing with three crimes that are said to have occurred on this date. I think it’s quite clear in the sentencing principles should apprise of this we’re dealing with - we’re dealing with concurrent sentences in all three of these. I think because of that - I think because he has no prior firearms charges, My Lord - I think because he has one crime of violence back in 1996 where he got probation - sure we can move from a year but to move from one year to three years in my respectful opinion seems to be onerous and quite a leap to make for - for the Court and from the submissions of Mr. Scheuer. Being that these are concurrent charges I would respectfully submit something in the range of two-years.
Mr. Smith is a big boy, Mr. Smith knows that he has to face the music today because he has been convicted and Mr. Smith is prepared to go to jail. I think by virtue of the charge - I think by virtue of the circumstances I think that a sentence of two-years in a federal penitentiary would be suitable.
The Forfeiture order is suitable. The Prohibition Order - Mr. Scheuer advises that it’s a minimum of ten-years. Mr. Scheuer is seeking a Firearm’s Prohibition Order of life. I would think that a more suitable approach would be to lean toward the minimum prohibition of ten years and I would ask this court to - to enforce that.
Thank you.
[52] Judges are presumed to know the law. Justice Richard’s decision came moments after hearing the submissions of counsel. He was explicitly referred to key sentencing principles including denunciation and deterrence; the circumstances of the offender and the offence; features that might be considered by way of mitigation or aggravation; and the penalties prescribed by law. Given the record in this case and the manner in which submissions were made during the course of the hearing, it was not incumbent upon the sentencing judge to repeat the very same points he had just heard. Having carefully considered the transcript and the judge’s reasons, I am not persuaded that he erred in law by failing to consider or apply proper sentencing principles.
[53] Neither am I persuaded that the sentence imposed here was not proportionate (s. 718.1), or was excessive. Mr. Smith has the burden of establishing that his sentence is demonstrably unfit. In my respectful opinion he has failed to displace that burden. By any measurement, Mr. Smith’s criminal record was extensive. Parliament has prescribed a minimum punishment of imprisonment for a term of one year where the associated crime for which conviction was entered is an indictable offence. (s. 95(2)). Thus Parliament has signalled the seriousness with which it expects such a dangerous crime to be treated. Punishment starts at incarceration for a year. In so doing Parliament has explicitly limited the discretion in sentencing available to trial judges. The spectrum of sentencing facing Mr. Smith had already been tempered by establishing a minimum base mark of one year in prison. Consequently - based on the manner in which the case was argued - the only real question in the minds of counsel for Justice Richard to decide, was how much more would be appropriate? In view of Mr. Smith’s history in crime, and the circumstances of this case, the Crown felt compelled to seek two more years than Parliament prescribed as a minimum.
[54] The manner in which Mr. Smith’s counsel put his submissions is very significant. Without in any way appearing to accept counsel’s point of view, I wish to emphasize what he said:
. . . to move from twelve months up, there has to be something extremely aggravating to do so.
Mere seconds later Mr. Knox urged that “something in range of two-years” would be appropriate. Thus, it seems to me self-evident that defence counsel freely acknowledged his client’s circumstances as being “extremely aggravating.” How then can one criticize Justice Richard for taking the very same position?
[55] Having assessed the merits of counsels’ submissions, the trial judge specifically rejected the notion that the mere fact this was Mr. Smith’s first firearm offence should reduce the penalty that might otherwise be imposed. Richard, J. noted Mr. Smith’s lengthy criminal record in which he had logged some 49 convictions spread over:
. . . about twenty-three years since July of ‘82. The record is probably one of the longest that I’ve had before me over the years. Granted, I accept Mr. Knox’s position that this is the first offence for a firearm but I - I’m not going to use that in mitigation because his offences have really gone the - the full gamut and this is - just happens to be another in the long line of varying offences which the - of which the accused has been convicted.
[underlining mine]
[56] Absent some serious mistake in law - which I fail to see here - that decision was his to make. It is not something I am prepared to second guess.
[57] Neither am I as impressed as my colleague that this was the appellant’s “first” conviction for a firearms’ offence or that his lengthy criminal record “included only one violent offence.” People do not keep loaded semi-automatic handguns by their bedside to greet a florist or the paperboy. The officers’ testimony at trial confirmed that the gun was loaded with the safety OFF. Beside it lay a separate magazine clip containing live rounds. It would take half a second to chamber a round and fire the weapon. Given this evidence, and the other circumstances of this offence and this offender, the Crown attorney was perfectly justified in submitting, as he did, that the appellant “was . . . readying himself to deal with anyone who came to the door.”
[58] In none of the cases canvassed by my colleague did the offender have a criminal record approaching Mr. Smith’s 23 years’ in crime.
[59] In R. v. Murphy, supra, the offender had 16 previous convictions. This court saw fit to treble the trial judge’s sentence of one year following Murphy’s guilty plea to a charge of possessing a prohibited weapon contrary to s. 88(1) of the Criminal Code. That significant increase in sentence occurred before the amendments to the Criminal Code which established mandatory minimum imprisonment under s. 95(2). Further, as appears from the comments of Cooper, J.A., the appellant in that case had an extensive criminal record going back to 1957, yet only one offence was described as “relating to violence” and that had taken place some six years earlier.
[60] In conclusion I am not persuaded that the sentence imposed by Richard, J. was shown to be demonstrably unfit. I also respectfully disagree with my colleague when she implies that it is beyond its upper limit. That question is not before us. I note that in R. v. Thurston, supra, the British Columbia Court of Appeal described a custodial sentence of 44 months for this type of offence as “approaching the upper limit” but not “unreasonable as falling outside the range.” We have not addressed those issues in this jurisdiction, and need not do so here.
[61] I see nothing to warrant our intervention. I consider the sentence imposed by Justice Richard to be a fit sentence. I would grant leave to appeal but would dismiss the appeal.
Saunders, J.A.
Concurred in:
Hamilton, J.A.