Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, and
[REDACTED]
[2015] O.J. No. [REDACTED]
Information Nos. [REDACTED] and [REDACTED]
Ontario Court of Justice
Barrie, Ontario
[REDACTED]
Heard: March 24, 2015.
Oral judgment: March 24, 2015.
(137 paras.)
Criminal law -- Sentencing -- Criminal Code offences -- Weapons offences -- Possession of prohibited or restricted weapons or ammunition ˘- Particular sanctions -- Imprisonment -- Sentencing considerations -- Aggravating factors ˘-Mitigating factors -- Protection of the public -- Submissions -- Joint submissions -- No previous record -- Seriousness of offence -- Accused sentenced to six years' imprisonment for offences relating to firearms and prohibited devices -- Accused, a member of the Military, exported Glock conversion switches designed by him to permit conversion of single bullet Glock to fully automatic or semi-automatic gun -- He also made YouTube videos on how to make these conversions -- Court accepted joint sentence submission -- Accused's moral culpability was high -- Offences involved considerable planning and deliberation -- Court also considered guilty plea, lack of record and destruction of accused's military career.
Sentencing of the accused for numerous offences relating to firearms and prohibited devices. The accused pleaded guilty. The accused, a member of the Military, exported Glock conversion switches designed by him to permit a conversion of a single bullet Glock to a fully automatic or semi-automatic gun, allowing multiple projectiles with a single trigger-pull from Canada to the US. He also made YouTube videos on how to make these conversions. The accused, 37, had no prior record. The joint submission was for a global sentence of six years' imprisonment less credit of time served.
HELD: The accused was sentenced to six years' imprisonment less credit for time served. It was an aggravating factor that the accused was going on YouTube to show the world at large how to install a conversion switch, how the Glock worked with the switch installed and how it sounded with silencers installed. He actually sought out buyers and sold these items for monetary profit and financial gain. There was a high degree of planning and deliberation involved here. The accused was running this enterprise as a business. The moral culpability involved in these offences was high. Considering the mitigating factors of the guilty plea, lack of record and the destruction of his military career, the joint submission was appropriate. Sentence: Two years' imprisonment; forfeiture; 20-year weapons prohibition; DNA order; $4,200 victim fine surcharge.
Statutes, Regulations and Rules Cited:
Criminal Code, s. 92(2), s. 99(2), s. 100(2), s. 103(1)(b), s. 737
Charges: 21 Related firearms and prohibited devices both in Ontario and Quebec
Counsel:
[REDACTED], Counsel for the Crown.
[REDACTED], Counsel for [REDACTED].
REASONS ON SENTENCE
[REDACTED] (orally):--
1 [REDACTED]: [REDACTED] here for the Crown, here to continue the sentencing hearing on [REDACTED] who's before the Court.
2 THE COURT: All right.
3 [REDACTED]: Good morning, Your Honour.
4 THE COURT: Good morning.
5 [REDACTED]: For the record, [REDACTED], counsel for [REDACTED].
6 THE COURT: Thank you and we have the interpreter here.
7 [REDACTED]: Good morning, Your Honour. [REDACTED], French Interpreter.
8 [REDACTED]: Your Honour, I believe this was our interpreter from the last occasion, if he would just come forward and be sworn or affirmed for today's proceedings, before you.
[REDACTED] - FRENCH INTERPRETER SWORN:
9 [REDACTED]: Before we start, the charges were read in French from Quebec and then translated into English.
Court Reporter's Note: Matters duly recorded but not transcribed for the purposes of this transcript.
10 [REDACTED]: ...its not clear for you; it too was encrypted so again, I'm just suggesting that common sense should prevail as far as what is on there and as far as it being an offence-related property, I would submit the same arguments as far as the computer goes.
11 THE COURT: All right, thank you. Anything further? No? So the proposal is 3 years on the Ontario charges, everything concurrent with 3 years consecutive on the Quebec charges, everything concurrent, less the dead time.
12 [REDACTED]: That was one option we discussed and that was one of my submissions to the other option discussed is simply 6 years on everything, concurrent.
13 THE COURT: Counsel, do I have a preference one way or the other?
14 [REDACTED]: I don't.
15 [REDACTED]: No preference for me, Your Honour.
16 THE COURT: [REDACTED], anything that you wish to add before I pass sentence on you? You don't have to say anything if you don't want to; it's up to you.
17 [REDACTED]: I think I already say it, yes, Your Honour. I don't have to told you I regret it, but it's too late.
18 THE COURT: All right.
19 [REDACTED]: What I am, I will accept the consequence of my act. I admit everything Your Honour, cannot say much.
20 THE COURT: All right, thank you, sir. So deduct from the pre-trial custody that leaves 2 years, am, I correct?
21 [REDACTED]: That's my math, yes.
22 THE COURT: All right. [REDACTED] has pled guilty to a number of charges involving firearms and prohibited devices. He has pled guilty to a total of 21 counts, 7 counts from Ontario, 3 of those being possessing a prohibited weapon or devices under Section 92(2) of the Criminal Code of Canada; 2 counts of transferring a prohibited device under Section 99(2) of the Criminal Code of Canada; and 2 counts of exporting prohibitive devices, contrary to Section 103(1)(b) of the Criminal Code. He's pled guilty to 14 counts from Quebec, 1 count of possession a restricted firearm, Section 92(1), 1 count of possessing a prohibited firearm, Section 92(2), 4 counts of possessing a prohibited device, contrary to Section 92(2), 1 count of possessing a restricted firearm in order to transfer it, contrary to Section 100(2), 1 count of possessing a prohibited device in order to transfer it, contrary to Section 100(2), 1 count of possessing a prohibited firearm in order to transfer it, 2 counts of manufacturing charges regarding a prohibited device and firearms under Section 99(2), and 3 counts relating to the transfer of prohibited devices or firearms, under Section 99(2).
23 The full facts of this case were set out in an agreed statement of fact filed as an exhibit on this matter. This sets out the full background, how items were located, where items were seized and the number and nature of the items seized. It also shows photographs of the various guns and devices.
24 Very briefly, [REDACTED] came to the attention of Canadian Authorities as a result of an investigation conducted by a Special Agent of the United States Department of Justice, Bureau of Alcohol, Tobacco and Explosives. He found several videos posted to YouTube by [REDACTED] showing how to install conversion switches onto a Glock handgun and how it works with that switch installed and how it sounds with a silencer installed.
25 [REDACTED] also posted that comments on a forum with reference to having blueprints for the production of Glock conversion switches. These conversion switches permit a conversion of the single bullet per trigger-pull Glock to fully automatic or semi-automatic guns, allowing multiple projectiles with a single trigger-pull.
26 As a result of undercover communications and investigation, [REDACTED] was paid for and shipped five conversion switches in two packages. [REDACTED] was a member of the Canadian Military, was living on Base Borden until he was arrested. He was arrested. When arrested, his car, his room and storage locker were searched. Located was an over capacity magazine with a 100- round capacity and two silencers, all designed for a firearm.
27 A search warrant was conducted on his room on the Base where his I-Phone, computer hard drives and paperwork associated to the creation and sale of firearms and components was located. It was discovered that [REDACTED] exported Glock conversion switches from Canada to others in the United States of America, to five individuals and had a Florida resident export firearms components to himself and that was part of the background facts read in to be taken into account.
28 C.A.D. drawings and blueprints designed for [REDACTED] for his machinist, a precision machining company located in Quebec, were found. These were designed by [REDACTED] to make Glock switches, firearms silencers and a lower number of receivers for AR-15-style, fully automatic assault rifles as well as other types of firearms and components which were sent to the company who built the parts and shipped them to [REDACTED]. [REDACTED] then assembled and adapted the parts to create switches, silencers and AR-15 firearms which he then went on to traffic to others.
29 A number of e-mail exchanges involving the purchase of firearm components and the use of firearms in non-firing range locations were revealed on his data. References were made to the semi-automatic AR-15 firearms, automatic firearms and silencers. Searches were made of [REDACTED] mother's Quebec residence where a number of items were located.
30 Unknown to police, [REDACTED] also had items at an apartment owned by his parents in St. Gervais, Quebec which his parents tried to destroy and buried, later turning them into the police.
31 In terms of the Ontario charges, Count 9, possession of the prohibited weapon that being the conversion switches, relates to the 5 switches in two packages that were located as a result of the U.S. Agent's purchase of conversion switches. Count 14, possession of prohibited devices, relates to silencers, the two silencers found as a result of the search of [REDACTED]'s Base residence, car and storage locker. Count 16, possession of prohibited device was the over-capacity magazine found on the day of his arrest as a result of the search of the Base residence, car and storage locker.
32 Counts 17 and 18, transfer of prohibited device was the automatic conversion switch for firearms, transferred to the U.S. Agent in the two packages. Counts 28 and 29, relate to the export from Canada of component, that being the automatic conversion switch for a firearm which was the Glock conversion switch sent to the Agent on two occasions.
33 The Quebec charges relates to a number of different items; Count 1, possession of a restricted firearm, that relates to four Glock pistol frames from the St. Gervais apartment turned over by the parents.
34 There was also apparently a fifth one not enumerated in the count. Count 3, possession of a restricted firearm for the purpose of trafficking, four Glock pistol frames as set out in Count 1. Count 9, possession of a prohibited device for the purpose of trafficking, that being a silencer which was turned over by [REDACTED]'s mother.
35 Count 10, possession of a prohibited device and over-capacity magazine for the Glock, turned over by his mother. Count 14, making a prohibited firearm, six, AR-15-type assault rifles, turned over by his mother. Count 15, possession of a prohibited firearm, six, AR-15-type assault rifles as set out in Count 14. Count 17, possession of prohibited devices, seven over-capacity magazines, turned over by his mother. Count 19, possession of prohibited devices which were fifteen silencers, turned over by his mother.
36 Count 21, manufacturing prohibited devices, fifteen silencers as set out in Count 19. This included silencers, silencer tubes, baffles for silencers and tools for the silencers. I note that his mother also turned over other items including boxes of ammunition, empty cartridges and other barrels, tools, pistol slides and other items.
37 Count 23, possession of a prohibited device, a high-capacity magazine for a Sawyer handgun. This was located during the search of his mother's residence in Liester, Quebec (ph). Also located was a Hellfire trigger mechanism and other items set out through 2 through 5 in the facts filed.
38 Count 24, manufacture prohibited firearm, a reported Magpole AR-15 assault rifle. This AR-15 was bought by [REDACTED] who was a client of [REDACTED]'s and was seized from him, that being [REDACTED]. Count 26, trafficking a prohibited device, that being three silencers. These were three silencers trafficked to [REDACTED] which were also manufactured by [REDACTED].
39 Count 28, trafficking prohibited firearms, three assault rifles, AR-15, three lower receivers that were sold to [REDACTED]. These were also manufactured by [REDACTED] and Count 29, trafficking in a prohibited device, the conversion switch for a Glock pistol which was a Glock firing selector switch sold to [REDACTED], also manufactured by [REDACTED]. [REDACTED] had a Possession and Acquisition licence for restricted firearms which were stored at a friend's house in Quebec and were seized. He does not have a licence to manufacture firearms or prohibited devices. I'm going to ask counsel to turn their minds to some of these Quebec charges, whether some of them should be stayed for Kienapple, [1975] 1 S.C.R. 729 in particular, Counts 1 and 3 which relate to the four Glock pistol frames, one being possession of a restricted firearm for the purpose of trafficking, the other being the possession of a restricted firearms. As well, Counts 14 and 15 which are possession of prohibited firearms, the six, AR-15-type assault rifles and Count 14, making the prohibited firearms and Count 19, the possession of prohibited devices and the manufacture of prohibited devices, the fifteen silencers.
40 Counsel provided me with case law to assist with respect to what the appropriate sentence would be in this case. Counsel for the defence provided decisions of R. v. Hamilton, [2011] O.J. No. 5466, Ontario Superior Court of Justice, R. v. Fletcher, [2008] O.J. No. 697, Ontario Superior Court of Justice, R. v. J.M., [2012] O.J. No. 1401, Ontario Superior Court of Justice, R. v. Smickle [2008] O.J. No. 2231, Ontario Superior Court of Justice. As well earlier, had provided R v. Neault [2013] S.J. No. 645, Saskatchewan Provincial Court.
41 In the Hamilton decision, the gun involved was a powerful assault rifle, an AK-47 variant, it was altered to operate as a semi-automatic. There was pre-trial custody accredited here at a basis of two-to-one credit which equated to 3 years, 5 months and 10 days, pre-trial custody. Both accused had records; one more serious than the other. They were being sentenced on trafficking a prohibited firearm, possession for the purpose of trafficking, possession offences and possession while prohibited. One of the accused, Mr. Largey (ph) had no reasonable prospect of rehabilitation. The sentences imposed on Mr. Largey were 8 years and 6 months prior to a deduction of pre-trial custody and Mr. Hamilton, 7 years. Mr. Largey on the weapons component received 3-1/2 years and 20 days plus an additional year and a half for possessing while prohibited. Mr. Hamilton received 7 years, 2-1/2 years and 20 days for the weapons and one year consecutive for the possession while prohibited.
42 The Court looked at a number of different authorities including a decision, R. v. MacKenzie, [2011] O.J. No. 156 Ontario Court of Appeal and noted that in MacKenzie, the Court of Appeal upheld the sentence of 6 years in circumstances where the accused was in possession of four firearms for the purpose of trafficking, one of those being a fully automatic machine pistol. The details of the criminal record are unknown. The Court in this case found the matter particularly serious as the context of the sale was not a legal sale to a collector, but an illegal transfer of a particularly lethal, prohibited firearm, within the criminal element and expressed concerns with respect to "out gunning," regularly equipped Police Officers.
43 In R. v. Fletcher, there was a finding of guilt following a trial. The sentence was 6-1/2 years globally before the pre-trial custody was deducted. It was 5 years on the weapons offences, 18 months consecutive on the two breaching of the firearm prohibition order. This involved the possession of a loaded, restricted firearm and the possession of a loaded, prohibited firearm as well as careless storage of firearms and two counts of possession while prohibited. This individual had a record, was viewed as a high-risk at reoffending and the weapons were loaded and ready to be fired.
44 In R. v. J.M., sentencing following trial; the sentence was one of 5 years globally, 4 years concurrent on offences of possession of the weapon. There was 20 months concurrent on the weapons dangerous and a year consecutive for the breach of a prohibition order. Ancillary orders were made. This offender was young; he had a criminal record. He had a lack of respect for the law; he had a supportive family. The gun was in a vehicle which the Court viewed as putting people at risk and the Court was also concerned that the firearm was the offender's weapon of choice.
45 In R. v. Smickle, the offender pled guilty to two counts and was found guilty of the rest. There was possession for the purpose of trafficking in Cocaine, failing to comply with a recognizance, multiple weapons offences including having a loaded semi-automatic handgun. The sentence before pretrial custody was deducted, was 5 years and 10 months with 30 months on the weapons charges, 24 months consecutive on the drug charges, 10 months consecutive on the breach of the prohibition order and 6 months consecutive on the failing to comply with recognizance. This offender had a criminal record, was in possession of a concealed loaded firearm and had drugs for the purpose of trafficking; was youthful and I note, was convicted of trafficking in drugs, two counts.
46 In R. v. Neault, there was a guilty plea. This involved the theft of a firearm and weapons trafficking and public mischief. There was a limited related criminal record. There was a sentence of 3 years on the gun trafficking. This individual had broken into two motor vehicles, stolen 3 firearms and ammunition and then sold the gun to another person. He was on probation at the time, was viewed as a high-risk to reoffend, was not employed. In mitigation, he was youthful, 20, had pled guilty and had a minimal record. An aggravating factor in this case was that this was for financial gain.
47 [REDACTED] comes before me with no criminal record. He has pled guilty which indicates remorse and an acceptance of responsibility. I accept that he has insight into what he did and the ruin that he has made of his career and his life as a result of his actions. He is a member of the Military, however, that will end and he will no longer be able to pursue that career path. He is 37 years of age. He has been employed since he was 15. He has worked as a labourer. He went to school to become a paralegal but didn't finish that course. He then worked as a manger at a night club for a period of time until he joined the armed forces at the age of 30. He received training in aero-space technology and engineering and graduated as an Avian Technician. Other than these charges, there was no misconduct during his Military career and there has been no misconduct in jail.
48 The scope of the activity here both in volume and geographical distribution, is huge. It is an aggravating factor that [REDACTED] was going on YouTube to show others, the world at large really, how to install a conversion switch, how the Glock works with the switch installed and how it sounds with silencers installed. He actually sought out buyers and sold these items for monetary profit and financial gain.
49 There is a high degree of planning and deliberation involved here. [REDACTED] was running it as a business. It is extremely dangerous selling to any and all, a conversion switch that allows multiple projectiles without reloading with a single pull of the trigger. The Crown is not aware of any instances of any of these items having been used in further offences, for example, robberies or homicides. That really is a matter of luck. The risk was there.
50 [REDACTED] was a member of the Military and the Military is there to protect us. This was certainly contrary to the intent of the Military, I have no doubt. The moral culpability involved in these offences is high.
51 Not as mitigating factors but as the absence of aggravating factors, are the following: there is no suggestion that [REDACTED] used any of these items or was involved in any of these offences with drug dealing. There is no suggesting that these items were used to commit offences other than the gun offences in the United States and Canada.
52 I notice that many of the cases that I am provided deal with individuals who, while they may have only one gun, it's loaded and they've got criminal records as well and sometimes drugs are involved. So it is very difficult to compare apples and oranges.
53 That having been said, despite the lack of a criminal record and the guilty plea and remorse on the part of [REDACTED], I am satisfied that the scope and nature of the charges and the activity here support what is a joint submission.
54 The joint submission is that globally, the sentence should be one of 6 years, with the pre-trial custody deducted from it; either 3 years on the Ontario charges and 3 years consecutive on the Quebec charges, or globally, 6 years on everything, deducting the pre-trial custody time.
55 It is certainly clear that [REDACTED] is dealing with a lot more in terms of guns and devices than in the case law provided to me. However, I counterbalance against that the guilty plea, lack of record and the impact of himself of the destruction of his career, so I am prepared to accept that what is being proposed by counsel, fits within the appropriate range.
56 Subject to hearing submissions with respect to Kienapple, there will be a sentence imposed of 6 years on each of these counts, less the pre-trial custody of 32 months on an enhanced basis of 1.5 to 1, as set out by the Supreme Court of Canada, in R. v. Summers, [2014] 1 S.C.R. 575 which equates to 48 months credit for pre-trial custody. That leaves a sentence of two years.
57 There is an agreement with respect to the forfeiture of a number of items, the forfeiture list being prepared by the Crown. There were certain items that were seized from [REDACTED]'s mother, that it is agreed he can make arrangements to have those transferred to someone else. There is an issue with respect to the forfeiture as to whether his I-Phone and the computer tower and prodrive should be subject to the forfeiture order and there is an issue with respect to the amount of time once a 109 order is made, that he should have to divest himself of those items to someone legally entitled.
58 Dealing firstly with the aspect of forfeiture; these agreed statements of facts that were filed, indicate at page 4, analysis of the data contained in [REDACTED]'s I-Phone4 revealed e-mail exchanges between [REDACTED] and various people which refer to the purchase of firearms, components, as well as to the use of firearms by clients in locations other than firing ranges. The e-mail exchanges made references to semi-automatic AR-15 firearms as well as to automatic firearms and silencers.
59 With respect to [REDACTED], [REDACTED]'s cell phone was provided to him and there were e-mail communications with him. With respect to texts to [REDACTED], there were notes in the calendar notes in relation to him contained on the I-Phone. Clearly, [REDACTED] has been using YouTube via the Internet as there were video's posted on it and also was involved in on-line talk forums commenting on silencers, again using the Internet.
60 With respect to the phone, the Crown has satisfied me on the balance of probabilities that this is offence-related property. I agree with the Crown's submission that he was doing business using his I- Phone. With respect to the computer and the tower, police were unable to access these items as they were protected. The Crown has filed a synopsis of statement from [REDACTED] who was [REDACTED]'s roommate at Base Borden. According to this, [REDACTED] knew that [REDACTED] was drawing pieces. [REDACTED] often talked about pieces he had made and finished. [REDACTED] showed [REDACTED] his work from a computer-assisted drawing program, called Solid Works. [REDACTED] asked what he was doing on his computer and
61 [REDACTED] showed him the Solid Works program and showed him detailed drawings on the computer. [REDACTED] showed him a design for slide walk as well as a design for a Colt 1911 handgun frame on Solid Works and on his computer and [REDACTED] saw a lot of Solid Works on the computer. [REDACTED] spent a lot of time in his room on the computer and would work on some of his pieces for two to three months.
62 Given all the facts that have been read in here, added to [REDACTED]' observations, although the police were unable to access these items, I am satisfied on a balance of probabilities that the computer, tower and pro-drive are offence-related property. The computer, the tower, the pro-drive and the I-Phone will all be subject to forfeiture.
63 With respect to the 109 order; the Crown is asking for a lifetime prohibition. The defence is suggesting 10 years and that such an order may have an impact on the ability of [REDACTED] to receive a pardon. [REDACTED] was running a business in illegal firearms and devices. This was a business he was running across borders in Ontario and to the United States. There were multiple persons involved and multiple occasions involved.
64 At the time, he was a member of the Military. I recognize that none of these items were used in other offences other than firearms offences, but again, that is a matter of luck. There is the matter of the protection of the public. That having been said, I recognize I am dealing with an individual who is pleading guilty to a series of offences where he does not have a prior record.
65 I full recognize the very serious nature of the offences that he has committed and the significant danger that he posed to the public. However, in all the circumstances, I view a lifetime ban of everything to be too Draconian for an individual who clearly has an interest in firearms and who I believe can be rehabilitated and down the road, can perhaps be trusted to legally have certain types of firearms again. With respect to the period that relates to the non-lifetime prohibitions, the time period is going to be one of 20 years.
66 With respect to the time to divest himself of the listed and enumerated items, I am advised that [REDACTED] has lost the support of his family, has lost the support of his parents, he doesn't have any friends so there's nobody that can assist him outside custody in terms of personal connections in order to find purchasers for the items that he wishes to transfer. The defence is asking that there be 120 days provided after his release from custody. The Crown is asking for 90 days.
67 While in custody, [REDACTED] obviously will not have access to these items. The difference being the fact that the police will have to hold on and maintain these items during the period that he is in custody. I have no information with respect to the costs that this will entail on the police service that has custody of these items, how much time it will require to keep these items in good working and saleable condition, or even if they are prepared to do so, so a delay of time may result in [REDACTED] having items that could be transferred now for a fair price, but two years from now, may have deteriorated and not be so easily transferable. That is going to be a decision he is going to have to make. I am going to give him the time that he is requesting to divest himself of those items which will be 120 days after his release from custody.
68 With respect to the D.N.A., these are all secondary D.N.A. offences. The defence asks that the order not be made and notes these aren't sex offences with children; that is true. If it was sex offences with children, you would be looking at a primary D.N.A. situation. Section 487.051 indicates what may, "on application by the prosecutor and if it is satisfied that it is in the best interest of the administration of justice to do so, make such an order in Form 5.04 in relation to a person who is convicted of an offence at any time if that offence is a secondary designated offence when the person is sentenced or discharged." The Section also provides that, "In deciding whether to make the order, the Court shall consider the person's criminal record, whether they were previously found not criminally responsible on account of a mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person's privacy and security of the person and shall give reasons for its decision."
69 [REDACTED] comes before me with no criminal record. The nature of the offences and the circumstances surrounding them are multiple counts relating to firearms and prohibited devices involving trafficking, possession for the purpose of trafficking and other counts. I make reference to the decision of the Ontario Court of Appeal in R. v. Henry and I am quoting from the annotation of that case contained in Martin's 2015 Annual Criminal Code:
"The Court is instructed to consider the offender's criminal record, the nature of the offence and the circumstances surrounding its commission and the impact on the person's privacy and security of the person. Given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interest served by the D.N.A. data bank, it will usually be in the best interests of the administration of justice for the judge to make the order."
70 I have heard nothing to indicate why [REDACTED] would fall outside the range of the person who is an adult who would be subject to this type of order and why he would not fall under the comments of "given an adult's offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interest served by the D.N.A. data bank."
71 I find that it is in the best interest of the administration of justice to make the order and the order will go in Form 5.04, authorizing the taking of bodily substances for forensic D.N.A. analysis for submission to the D.N.A. data bank. That order will be subject to terms and conditions that I consider advisable.
72 With respect to the victim surcharge; these offence pre-date the legislation changing the victim surcharge regime. The defence argues that the surcharge which will be $200 on each count of $4200 should not be applied retroactively. The defence has not brought a constitutional challenge to the legislation. The defence made reference to the financial burdens that [REDACTED] will be subject to. He will be discharged three to four weeks from today from the Military. He had been receiving his pay as still serving until he entered his plea. As a result of the plea, he will be required to pay back $123,000 which was paid to him while he was in custody. If he fails to pay that back, he will lose his pensions as they will deduct the debt from his pensions. The defence notes that he is now 37, has no job waiting for him and has lost his job with the Military and submits that this $4200 will be a financial burden. If the Court does impose it; the defence asks for a significant amount of time to pay it back.
73 The defence provided me with the decision in R. v. Michael, [2014] O.J. No. 3609 OCJ, Paciocco, J. (ph). I'm advised that the issue of the surcharge is making its way through the appellate court. Justice Paciocco in the Michael decision was of the view and made a finding that the surcharge provisions are to be categorized as punishment. If an enactment is punishment, it cannot operate retroactively.
74 Section 737 relates to victim surcharge and indicates, "An offender who is convicted or discharged on an offence under this Act or the Controlled Drugs and Substances Act, shall pay a victim surcharge in addition to any other punishment imposed on the offender." It sets out what the amount of the surcharge is and that the Court can order a higher surcharge if it considers it appropriate and the offender can pay the higher amount and indicates under Sub(7), "A victim surcharge imposed under Sub-section (1) shall be applied for the purposes of providing such assistance to victims of offences as the Lieutenant-Governor in Council of the Province in which the surcharge is imposed may direct from time to time."
75 Justice Paciocco viewed this section as punishment and set out the reasons for it. There is reference to the two-part test, paragraph 7 as set out in the Rogers decision:
"The two-part test identified in that case at para. 63 holds that as a general rule, the consequence will constitute a punishment when it forms part of the arsenal of sanctions to which an accused may be liable in respect to the particular offence and the sanction is one imposed in furtherance of the purpose and principles of sentencing."
76 I am of a different view than Justice Paciocco. I do not view this provision as being part of an "arsenal of sanctions" and I do not view it as being in furtherance of the purposes and principles of sentencing. I view this as a consequence of being found guilty and I view it as a provision to provide funds to support assistance to victims of offences.
77 The Section that specifically has to import other exceptions into consideration of Section 737, one of those is 734.7 which indicates a warrant of committal can't be issued unless, among other things, the offender has without reasonable excuse, refused to pay it. The "it" in that case, referring to a fine.
78 Given that I do not view this as a punishment, I view this as a consequence. This will be retroactive and it will be in place on each count. [REDACTED] has the ability to earn a wage. I recognize he looks at repaying what he was paid while in custody. However, I have nothing to indicate he was not aware that that may be a consequence of his being found guilty and since he was in custody, one would hope that he had saved a significant portion of that.
79 He has the capability of working. He has worked as a labourer when he was younger. He has worked as a nightclub manager and has experience in that and while he won't be working for the Military, he has training in aviation technology which he can apply and put perhaps to good use. In any event, he is certainly employable once he is released. There will be the surcharge, however he will be given 3 years time to pay that.
80 THE COURT: Dealing with the various orders then; could I have the Exhibit please that relates to the items that are going to be transferred to other people. I believe it was filed, was it not?
81 [REDACTED]: It looks like that, Madam Registrar.
82 THE COURT: All right. I am making an order under Section 109 of the Criminal Code. I order pursuant to Section 109 of the Criminal Code, that the accused is prohibited from possessing any firearm other than a prohibited firearm or restricted firearm and any crossbow, restricted weapon, ammunition and explosive substance for a period beginning today and ending 20 years after his release from imprisonment. As well, he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. In accordance with Section 115 of the Criminal Code, subject to any other term of this order, every item prohibited by this order and in possession of the accused, on the commencement of the order, is forfeited to Her Majesty to be disposed of or otherwise dealt with as the Attorney General directs, save and except for the items listed in the attachment, Exhibit 4. It is a term of this order that [REDACTED] has 120 days after his release from custody within which to arrange for the lawful transfer and in full compliance with the Firearms Act of items which this prohibition order pertains to, a suitable licenced individual or business. At the conclusion of those 120 days after his release from custody, all items not so transferred shall be forfeited to Her Majesty to be disposed of or otherwise dealt with as the Attorney General directs. The items that are subject to this clause are set out in Exhibit 4 which is to be attached to the prohibition order. With respect to the D.N.A.; can I ask the Crown, where will the samples be taken? Will he be taken first to C.N.C.C.?
83 [REDACTED]: Yes, so I imagine it will be done there.
84 THE COURT: All right, the terms and conditions in Appendix A that I consider viable to ensure that the taking of the samples are reasonable on all the circumstance are contained in that Appendix. The offender shall accompany a Peace Officer today or as soon thereafter as is feasible at the Central North Correctional Centre for the purpose of having the said samples taken and shall thereafter delivered or returned to the custody of the institutional authorities provided that if the offender is released on bail pending appeal, prior to the said sample being obtained, that a Peace Officer is authorized pursuant to Section 487.07(2) of the Criminal Code to detain the offender for the purpose of taking the said samples for a period that is reasonable in the circumstances. The offender is required to accompany a Peace Officer for that purpose. Does he need me to read the other terms and conditions on this Appendix or is he content that he can read those at his own leisure?
85 [REDACTED]: Yes, he's content that he can read that on his own, Your Honour.
86 THE COURT: All right, thank you. Now it will be the forfeiture; can I have that document from the Crown, please?
87 [REDACTED]: Yes, and I'll actually give two copies because I gather one will probably have to go with the Quebec Information.
88 THE COURT: With respect to this document, the items that are to be returned have been deleted from it.
89 [REDACTED]: Yes.
90 THE COURT: For example, the passport, correct?
91 [REDACTED]: Yes.
92 THE COURT: Everything else as a result of my ruling and agreement in counsel contained in this list is to be forfeited, is that correct?
93 [REDACTED]: Yes.
94 [REDACTED]: Yes, Your Honour.
95 THE COURT: Then on application made by the Attorney General for the Province of Ontario for an order of forfeiture or disposition of property, I am making an order with respect to offence-related property which is subject to forfeiture pursuant to Section 490.1(1) of the Criminal Code, that the respondent was convicted of one or more indictable offences under the Criminal Code. It is ordered that the property listed under B, which says, "See attached R, v, [REDACTED] list of all items seized from [REDACTED], Ontario and Quebec," be forfeited to Her Majesty the Queen in Right of Ontario and Quebec; be forfeited to Her Majesty the Queen in Right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs or otherwise dealt with in accordance to law. I take it, this does not contain the items that are subject to the prohibition order that are anticipated to be transferred, is that correct?
96 [REDACTED]: It does actually, so if you want to give me...
97 THE COURT: All right, so can we just hand this back to the Crown and have her delete the items on it that are not to be subject to the forfeiture order and then show that to the defence so they're also satisfied.
98 [REDACTED]: So Your Honour, I've removed -- they did appear on there, all seven of those firearms, so I have just blacked those off of this list.
99 THE COURT: For the purpose of the record, which numbers were they on the exhibit list?
100 [REDACTED]: They had been numbers, 48, 49, 50,51 and 119, 120, 121.
101 THE COURT: 119, 120 and?
102 [REDACTED]: 120 and 121.
103 THE COURT: And has the defence had a chance to look at that?
104 [REDACTED]: Yes, I have, Your Honour. I've cross-referenced it, thank you.
105 THE COURT: All right, so and this - on both copies of this, you've deleted those?
106 [REDACTED]: Yes.
107 THE COURT: Now you want me to sign two forfeiture orders, one to be sent to Quebec? I'm not quite sure I'm following that.
108 [REDACTED]: No, I was just thinking that the order - that Exhibit would have to be sent, that's why I was giving a second copy and saving the Clerk from making a copy.
109 THE COURT: All right, so one of these then will be entered as an exhibit, the other one will be attached to the order then, all right?
110 [REDACTED]: That will be exhibit six, Your Honour.
EXHIBIT NUMBER 6 - List of Items for Forfeiture Order - Produced and Marked.
111 THE COURT: Now with respect to the other counts that he has not pled guilty to in Ontario and Quebec, what's the Crown doing with those?
112 [REDACTED]: Those can be marked as withdrawn, please.
113 THE COURT: Those are withdrawn at the request of the Crown. Are any of these offences that should be subject to the principles in R. v. Kienapple? MS. ALEXANDER: Your Honour, I don't believe so and for what it's worth, that's part of the thinking that went behind the counts that were agreed upon to be pled to, so for instance, Counts 1 and 3, yes, it's the same four restricted Glock pistol frames so yes, it's the same items, but in my view, they're two distinct offences; one is simply to possess them knowing that you don't have the proper licences or certificates too, which he did/which he did not, so he committed that offence but secondly, he also had those for the purposes of trafficking. He didn't have them just for his own good, so... THE COURT: Well let me just ask the defence then; is the defence content that they're not using Kienapple on this?
114 [REDACTED]: Yes, I'm content with that and just. ..
115 THE COURT: All right.
116 [REDACTED]: ...and just to add Your Honour, it is actually something - an issue that my friend and I had previously discussed and that's how we're able to present these counts before you.
117 THE COURT: All right, just to indicate for the purpose of the record, there were three mandatory periods of incarceration required on the Section 92(2) offences, the 100(2) offences and the 103(1) (b) offences. No mandatory minimum on the 92(1) and Sub (2) offences. Now are there any orders I have overlooked or missed as far as the Crown's concerned?
118 [REDACTED]: I don't think so, Your Honour, but Madam Clerk has a fairly unenviable job of doing a lot of paperwork. I presume the D.N.A. that you've ordered applies to every offence that - where it was applicable?
119 THE COURT: Yes.
120 [REDACTED]: Same with the firearms prohibition, but no, I think you've got it covered.
121 THE COURT: In my understanding is the firearms prohibition applies to each and every count that he's pled guilty to and the same for the D.N.A. by virtue of it being an indictable offence for which the sentence can be more than five years, right?
122 [REDACTED]: Yes, thank you.
123 THE COURT: Is there anything with respect to the orders that has been made that the defence has a concern with that has either been missed or needs to be modified?
124 [REDACTED]: Not at the moment, Your Honour, but if you could just give me a brief indulgence...
125 THE COURT: Go ahead.
126 [REDACTED]: ...so I can have quick discussions with [REDACTED]. We're content Your Honour, thank you.
127 THE COURT: All right, thank you. Now with respect to the Information that's before the Court, Counts 1, 3, 14 and 15, there's an English translation. That should all be amended to indicate "firearm" on the consent of counsel from "weapon." So there's nothing further with respect this gentleman?
128 [REDACTED]: No, nothing further, thank you.
129 THE COURT: All right, sir. You're still a young man; you've got your life ahead of you. You clearly have marketable skills. It's truly unfortunate that you've done this to yourself, to your career, to your relationship with your family, however, don't give up. There's always hope. See what you can achieve while you're in custody with respect to getting your life set up for when you get out; do you understand that?
130 [REDACTED]: Yes, Your Honour.
131 THE COURT: Okay, thank you, very much.
132 [REDACTED]: Thank you, Your Honour.
133 [REDACTED]: Thank you.
134 [REDACTED]: And I thank my friend for her assistance in this matter.
135 THE COURT: All right, thanks to both counsel. If after you leave you decide that I've missed something and you want to come back in, feel free.
136 [REDACTED]: Okay, thank you.
137 THE COURT: Thank you.
