PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Sampson, 2020 NSPC 18
Date: 20200310
Docket: 8364442-49
Registry: Dartmouth
Between:
Her Majesty The Queen
v.
Blake Joseph Sampson
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Judge: |
The Honourable Judge Jean Whalen, J.P.C. |
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Heard: |
February 24, 2020, Dartmouth, Nova Scotia |
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Oral Decision |
March 10, 2020 |
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Charge: |
ss. 86(1), 88(1), 91(1), 92(1), 95(1), 108(1)(b), 117.01(1), 117.01(1) of the Criminal Code |
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Counsel: |
Jane Mills, for the Crown Michelle James, for the Defence |
By the Court:
Decision on Sentence:
I. Introduction:
[1] This is the decision of Blake Joseph Sampson. Mr. Sampson pled guilty to count five and seven on an eight-count information. On the date in question the superintendent of an apartment building in Dartmouth called the police to complain of “loud music” coming from apartment number six. The apartment was the residence of the defendant’s sister. When police arrived at apartment number six, they heard loud music; called out and stood there for five minutes. There was no response. The door was ajar so the police entered and saw the defendant asleep on the couch. They observed a portion of a pistol sticking out from underneath a pillow.
[2] The officer cleared it. There were 10-12 bullets in the gun, but none in the chamber. There were other people in the apartment. The police called for back up. The defendant told the police he needed the gun for protection. He also admitted he knew he could not possess the gun.
[3] The gun was a “restricted firearm” as defined in s. 2 of the Criminal Code. Mr. Sampson was prohibited from possessing a firearm pursuant to an order imposed on December 1, 2010.
II. Victim Impact Statement:
[4] No Victim Impact Statement was filed with the court.
III. Criminal Record:
[5] Mr. Sampson has a record. Between 2009 and 2016 he had 19 Criminal Code convictions and one Controlled Drugs and Substances Act conviction. He has a retainable Youth Criminal Justice Act record. Between 2005 and April of 2009 he has amassed 22 convictions.
[6] He has ten breaches of various court orders. The last breach was a breach of probation which resulted in a fine and an order pursuant to s. 491.1 of the Criminal Code, an order for forfeiture of property, in particular cannabis and a grinder. Mr. Sampson has nine property related offences including a break and enter in 2010 and one robbery. His YCJA record consists of 12 breaches of court orders, one assault, six property related offences including a break and enter and possession of break-in instruments, two assaults with a weapon causing bodily harm and one for carrying a concealed weapon.
IV. Pre-Sentence Report:
[7] Mr. Sampson is 28 years of age. He grew up in Dartmouth, he witnessed a lot of violence in his home including physical and verbal abuse between his parents. After his parents separated, he lived with his mother but was also placed in foster care for three years. At 19 he was sent to Dorchester Penitentiary.
[8] He is currently in a stable relationship and has two children. His spouse advises she was surprised to learn of the charges because he has not been in trouble for the past five years. (She had no idea he feared for his safety). She describes him as a good father and is employed in Alberta. She says he has no issues with drugs or alcohol.
[9] Mr. Sampson has completed numerous training courses and has been employed in Alberta for the last 4-5 years on a contractual basis when the oil rig shut down. He expects to return in April of 2020.
[10] His employer describes Mr. Sampson as a good employee, who gets along well with his co-workers and supervisors and does not cause any discipline concerns. He advised if Mr. Sampson received a period of incarceration, he would re-hire him next season. This job appears to have made Mr. Sampson financially stable.
[11] His second employer at City of Lakes describes Mr. Sampson as a great employee who shows up on time, gets along well with his co-workers and was surprised to hear of the incident. If Mr. Sampson goes to jail, he would re-hire him.
[12] Mr. Sampson experimented with drugs and alcohol at an early age but does not report any issues to date and counsel advised he disabused himself of this when he was 19 years of age.
[13] Mr. Sampson admits his guilt stating “he was at a party and fell asleep on the couch. He had a gun in his possession for personal safety and was aware of the restriction.” He takes full responsibility for his actions. He added jail would affect his family as he takes care of the children when his partner is at work and he contributes to the bills when he is working.
[14] Mr. Sampson’s mother was shocked to learn of the offences because “her son doesn’t live that lifestyle anymore”. He has matured, is kind-hearted and an amazing father. She denies any dependency issues. He spends most of his free time with his children.
[15] In 2016, Mr. Sampson was sentenced for numerous offences previously mentioned and received 176 days in jail and 18 months probation. His probation officer, Mr. Van Voorst wrote: “He displayed acceptable reporting habits, upgraded his certifications at work. He obtained a job prior to the conclusion of his probation. He received a ticket for possession of marijuana but was not charged with a breach of probation despite being on a condition not to possess CDSA controlled substances.”
V. Aggravating Factors:
[16]
1. This was a handgun .22 caliber;
2. The gun was loaded with ammunition, none in the chamber;
3. There is a previous record-including violence and use of weapon and carrying a weapon, and;
4. Mr. Sampson knew he was prohibited
VI. Mitigating Factors:
[17] There is a guilty plea and there is no other criminal activity associated with Mr. Sampson’s possession of the gun.
VII. What is the appropriate sentence for this Defendant?
[18] As stated in para. 15 of R v. Ritcey (unreported):
In R v. Donovan, 2013 NSPC 83, I stated at paragraph 14;
[14] Ruby, 6th Ed. at para 2.1 states:
It is a basic theory of punishment that the sentence imposed bear a direct relationship to the offence committed. It must be a fit sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender deserves the punishment received and feel confidence and fairness in the rationality of the system. To be just, the sentence imposed must also be commensurate with the moral blameworthiness of the offender. A sentence that is not just and appropriate produces only disrespect for the law. These common-law principles have been codified in sections 718., 718.1 and 718.2 of the Criminal Code.
[15] Parliament has codified a number of other important values to help sentencing judges give effect to the fundamental principles of proportionality. The articulated principles, however, are general in form, and moreover they provide no mechanism for resolving the inevitable conflicts that arise between these various principles in individual cases. Sentencing judges are simply told to weigh and balance the competing principles and fashion an appropriate sentence.
[16] In crafting the appropriate sentence, the Court must have regard to the factors set out in the Code as well as the nature of the offence committed and the personal circumstances of the offender. According to the Supreme Court of Canada, the appropriate sentence will also depend on the circumstance of the community in which the offence took place.
“It must be remembered that in many offences there are varying degrees of guilt and it remains the function of the sentence process to adjust the punishment of each individual offender accordingly.
The appropriate sentence for the specific offender and the offence is therefore determined, having regard to the compendium of aggravating and mitigating factors present in the case. It is weight attached to the aggravating and mitigating factors which shape and determine the sentence imposed and this is an individual process. In each case the court must impose a fit sentence for this offence in this community.
The nature and gravity of the offence is properly the central factor in sentencing. It is and must be the first rule that prompts the court. The concern behind this consideration is that there should be a just proportion between the offence committed and the sentence imposed. Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed having regard to the nature of the crime and the particular circumstances in which it was committed.”
Sentencing, Ruby, 6th Ed.
[17] Other common law principles of sentencing must also be appropriately applied. In the end, the punishment must be proportionate to the moral blameworthiness of the offender. The public must be satisfied that the offender deserved the punishment received and must feel a confidence and fairness and rationality of the sentence. This principle of proportionality is fundamentally connected to the general principle which holds that the criminal sanction may be imposed only on those who possess a moral culpable state of mind. The cardinal principle is that the punishment shall fit the crime.
[18] s. 718.2(e) of the Criminal Code requires a judge to consider all available sanctions that are reasonable. That is jail, probation, fine or some combination.
[19] s. 718.2(a) now entrenches the common-law by requiring judges to increase or reduce a sentence by taking into account aggravating or mitigating circumstance relevant to the offence or offender.
VII. Position of the Parties:
[19] The Crown is seeking a period of custody on both counts; two years on count one- and one-year consecutive on count two. As well as ancillary orders including a DNA order, a s. 109 weapons prohibition for life and a forfeiture order for the weapon and ammunition seized.
[20] Counsel draws my attention to Mr. Sampson’s record and the aggravating factors, particularly that he was carrying the gun for protection.
[21] Counsel also distinguishes R v. Ritcey, who received a CSO, for a similar offence, saying Mr. Ritcey was much younger than Mr. Sampson and he had no record. Crown counsel also distinguished R v. Buffalo, 2020 ABQB 41 saying that there are no Gladue factors in the case at bar to consider and Mr. Sampson’s circumstances are quite different.
[22] Crown argues the principles of denunciation and deterrence and protection of the public must be considered by the court.
[23] Defence counsel is seeking 18 months to two years less a day to be served in the community under a conditional sentence order. Counsel argues that the principles of denunciation and deterrence can be met with this disposition and this also meets the principle of restraint given Mr. Sampson’s circumstances. He is youthful, he accepts responsibility, there is a positive Pre-Sentence Report and he is in a positive relationship with two children, he is gainfully employed, and there is a gap in his record. Mr. Sampson has been on strict bail conditions for 256 days without incident.
[24] Counsel says that Mr. Sampson should not be sacrificed on the altar of general deterrence.
[25] Mr. Sampson was not like Mr. Nur, that is, an outlaw who carries in a public place, a weapon as a tool of his trade. And although Mr. Sampson is not aboriginal there are many similarities to Mr. Buffalo in that there was no third party involved, no injuries to anyone, no risk to the public. Jail would reverse any meaningful gains by Mr. Sampson. She argues the restorative objectives found in R v. Buffalo, can apply to Mr. Sampson.
[26] This is not a joint recommendation and since s. 718(2)(e) requires me to consider all available sanctions,
[27] I will also turn my mind to the possibility of a jail sentence to be served in the community pursuant to s. 742.1 of the Criminal Code.
[28] In R v. Ritcey, at paras. 26 and 27:
Judge Derrick sets out the principles to be considered in R v. Lee [2011] N.S.P.C. 81 at para 56-61:
[56] As I noted in my reasons in Naugler:
87 Promoting respect for the law is a fundamental purpose of sentencing. Conditional sentencing has struggled to satisfy this objective although its effectiveness in this regard has been, in my opinion, undermined by a general misunderstanding of its role as a legitimate, punitive sentencing option. Conditional sentencing was intended to reflect a new emphasis on the goals of restorative justice (Proulx, paragraph 19) Parliament had “mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society.” (Proulx, paragraph 20) A conditional sentence is a hybrid:
…[it] incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence … (Proulx, paragraph 22)
[57] I went on in Naugler to make the following comments that are relevant to repeat in this sentencing:
88 The Supreme Court of Canada in discussing conditional sentencing in Proulx recognized that “Inadequate sanctions undermine respect for the law” and fail to provide sufficient denunciation and deterrence. The Court understood that if a conditional sentence is not distinguished from probation, it will not be accepted by the public as a legitimate sanction. (Proulx, paragraph 30)
89 The punitive effect of a conditional sentence is to be achieved through the use of punitive conditions, such as strict house arrest, to constrain the offender’s liberty. (Proulx, paragraph 36) Another feature of the conditional sentencing, is its ready conversion to a sentence in a jail cell. As noted by the Supreme Court of Canada in Proulx: “… where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender will serve the remainder of his or her sentence in jail.” (Proulx, paragraph 39)
[58] The Supreme Court of Canada’s authoritative findings in Proulx that conditional sentences are not lenient sentences and with strict conditions can satisfy the sentencing imperatives of denunciation and deterrence and be sufficiently punitive and stigmatizing is still good law. Despite a sustained political campaign against conditional sentences and much public misunderstanding about their suitability as a sentencing option, there is no reasoned basis for challenging the continued legitimacy of the Court’s statements. However, Proulx must be carefully read to fully appreciate what it is saying.
[59] Proulx held that there is no presumption in favour of conditional sentences: the fact that the prerequisites for a conditional sentence have been met, as they have been here, does not presume that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. “The particular circumstances of the offender and the offence must be considered in each case.” (Proulx, paragraph 85)
[60] Two main objectives underpinned the sentencing amendments that produced the conditional sentencing regime: (1) reducing reliance on incarceration as a sanction, and (2) amplifying the role for restorative justice in sentencing as exemplified by the objectives of rehabilitation, reparation to the victim and the community, and the promotion of a sense of responsibility in the offender. (Proulx, paragraph 98) The Supreme Court of Canada described how the conditional sentencing option can “facilitate the achievement” of these objectives:
99 …It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot…
100 Thus, a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction that incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and €, which militates in favour of alternatives to incarceration where appropriate in the circumstances.
[61] Proulx determined that the need for denunciation, one of the sentencing objectives to be achieved by an offender’s sentence, may in some cases be ‘so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” (Proulx, paragraph 106) Likewise, Proulx acknowledged that “there may be circumstances in which the need for deterrence will warrant incarceration” depending “in part” on whether there is the prospect of incarceration being likely to have a “real deterrent effect.” (Proulx, paragraph 107) In R v. Wismayer, 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380, Rosenburg, J. for the Ontario Court of Appeal regarded the general deterrence issue n the context of conditional sentencing as follows:
General deterrence, as the principal objective animating the refusal to impose a conditional sentence, should be reserved for those offences that are likely to be affected by a general deterrent effect. Large scale well-planned fraud by persons in positions of trust…would seem to be one of those offences. (paragraph 50)
[27] And later at para 63, 64, 65:
[63] The Supreme Court of Canada in Proulx recognized the deterrence issue expressly in the context of that case, which involved dangerous and impaired driving causing death. These offences were described as “often committed by otherwise law-abiding persons, with good employment records and families.” Such persons, it was suggested by the Court, “are the ones most likely to be deterred by the threat of severe penalties.” (Proulx, paragraph 129) Offenders in fraud cases are likewise not oblivious to the consequences of their choices. As noted by the Ontario Court of Appeal:
…there are few crimes where the aspect of deterrence is more significant. It is not a crime of impulse and is a type that is normally committed by a person who is knowledgeable and should be aware of the consequences. That awareness comes from the sentences given to others. (R v. Gray, 1995 CanLII 19 (ON CA), [1995] O.J. No. 92, paragraph 32, (Ont. C.A.))
[64] What conditional sentences are best at accomplishing is an effective balancing of the sentencing objectives of denunciation and deterrence with the objectives of rehabilitation, reparation and promotion of a sense of responsibility. Where those restorative objectives can be realistically achieved, “a conditional sentence will likely be the appropriate sanction…”, provided that denunciation and deterrence are not left out of the calculus. (Proulx, paragraph 109) In Proulx, the Supreme Court of Canada delineated the approach to be taken in deciding what type of sentence is the appropriate option:
113 …In determining whether restorative objectives can be satisfied in a particular case, the judge should consider the offender’s prospects of rehabilitation, including whether the offender has proposed a particular plan of rehabilitation; the availability of appropriate community service and treatment programs; whether the offender has acknowledged his or her wrongdoing and expresses remorse; as well as the victim’s wishes as revealed by the victim impact statement (consideration of which is now mandatory pursuant to s. 722 of the Code). This list is not exhaustive.
[65] Determining a fit and proper sentence requires that the sentencing judge assess “which sentencing objectives figure most prominently in the factual circumstances of the particular case before them.” (Proulx, paragraph 113)
IX. Review of Case Law:
[29] I have reviewed the case of R v. Ritcey (unreported) and the cases that I had cited within, particularly R v. Borde, 2003 O.J. No. 354, R v. Marshall, 2015 ONCA 692, R v. Fenton, 2017 ONSC 5945, R v. Brereton, 2016 BCSC 1553 and R v. Perry, 2018 NSSC 16. It appears from these cases that the more aggravating the factors such, as e.g. a loaded weapon, a semi-automatic weapon, if the weapon was used in the commission of a crime, if there’s a previous criminal record or the defendant was found with drugs as well, then a jail sentence is imposed and it is lengthy.
[30] I have also reviewed R v. Buffalo, wherein the defendant was given a conditional sentence order after pleading guilty to three offences, ss. 92(1), s. 94(1) and s. 117.01. Mr. Buffalo got a duffel bag from a third party which contained six restricted handguns, two boxes of ammo and gun accessories. He was to “hang on to the duffel bag as a favour.” The possession did not fall into the “true crime” categories found by the court.
[31] And although, Mr. Sampson is not aboriginal counsel argues I should apply the restorative objectives to him.
X. Availability of A Conditional Sentence:
[32] In the cases referred to in R v. Buffalo even where found to be in a “true crime” situation; carrying a loaded weapon in car, intending to use if circumstances presented itself or previous record for weapons a CSO was imposed.
[33] In Nova Scotia the range for these types of offences includes probation, a conditional sentence order or incarceration. The jail sentences increase with the aggravating factors such as discharging a firearm in public, possession of a loaded weapon or a loaded firearm in public and previous convictions for weapons and/or drugs.
[34] Given the authorities and Mr. Sampson’s circumstances and the facts it appears a conditional sentence could be, at least available to Mr. Sampson, but I must also consider is it appropriate in the circumstances. That is, am I satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the purpose and principles of sentencing as set out in ss. 718., 718.2.
[35] The central issue at play is whether the societal prerogative of deterrence and denunciation on the one hand, which is pressing and important in the context of illegal guns, and the concept of restorative justice on the other can be properly balanced.
[36] Upon reviewing the Crown’s cases in R v. Buffalo, Justice Mah stated at para. 45:
“… it is particularly aggravating to possess illegal guns when they are loaded, accessible and either possessed for the purposes of committing another crime or could imminently cause injury of death to other persons.”
[37] Upon review of the Defence’s cases in R v. Buffalo, J. Mah stated at para. 60:
“This survey of the case law suggests to me: that a term of imprisonment in a federal penitentiary is the default position for possession of an illegal firearm that is loaded and accessible and presents imminent danger to the community, or is possessed in connection with or in furtherance of other crimes; this default position is necessary to serve the objectives of deterrence and denunciation and thereby reduce the inherent risks of harm to the community that comes with illegal firearms; however, there are exceptional cases where the personal circumstances of an offender may allow imposition of less than federal time be served in the community and this may be the case even where the firearm was loaded and ready for use; what makes a case exceptional may include significant Gladue factors along with an offender’s rehabilitation efforts.”
[38] I must also address two other questions:
(a) Whether the safety of the community is endangered by Mr. Sampson serving a sentence in the community?
[39] Mr. Sampson’s record reveals he has received fines, probation, intermittent sentences, provincial jail sentences and federal jail sentences. He has been the subject of probation orders, DNA orders, three weapons prohibition orders and a s. 491.1 forfeiture order. This order was imposed on the 29th of August 2016 for a breach of probation, in particular, failing to abstain from alcohol or drugs. There has been a gap since that time and as the pre-sentence report says he is employed and has a family.
[40] The Crown argues that it is aggravating that he was carrying the gun for “protection” all the while knowing he could not possess the weapon.
[41] I also have to ask:
(b) How can deterrence and denunciation be properly served as sentencing objective by a Conditional Sentence Order?
[42] The presence of illegal guns in the community is a serious problem that exposes ordinary people to the risk of harm. That is the case whether guns are loaded or not.
[43] There is no evidence the gun was connected to any specific criminal activity. When Mr. Sampson was arrested there was no evidence any drugs were found on him or he was under the influence of same.
[44] Mr. Sampson took a loaded .22 caliber handgun to a party. He carried it for his protection. He made a conscious choice to carry it out in public to his sister’s apartment where other people were present.
[45] Carrying a loaded gun “for his protection” suggests the only purpose of carrying this handgun was to intimidate, harm or possibly even kill another person, should a situation arise where he felt he needed protection. For his protection may lead to a random or intentional act of violence including the death of innocent bystanders in the area of any confrontation between Mr. Sampson and a third party.
[46] This situation was not like Mr. Buffalo, a duffle bag full of unloaded weapons being kept for a favor.
[47] I’m afraid I’m not satisfied that service of the sentence in the community would not endanger the safety of the community or be consistent with the fundamental purpose and principles of sentencing.
[48] Mr. Sampson’s actions of carrying a loaded handgun could have led to a senseless act of violence and grave consequences. A message must be sent to likeminded people that this will not be tolerated and people who engage in this conduct that pose a danger to others will attract custodial sentences.
[49] Based on the facts of this case, the aggravating and mitigating factors, his record, the Pre-Sentence Report, his personal circumstances and also the principles of sentencing found in the Criminal Code including general and specific deterrence and rehabilitation, I impose the following sentence:
1. a Prohibition Order under s.109(3) for life;
2. a Forfeiture Order for the gun and ammunition;
3. a DNA Order on both offences;
4. on count five he will serve two years in custody consecutive to any time he’s serving and;
5. on count seven one-year consecutive to any time he might be serving, and consecutive to count five; for a total of three years.
[50] I will waive the victim fine surcharge. The rest of the counts on the information will be dismissed for want of prosecution.
Jean Whalen, JPC