Overview
The sentence that the Crown requested was on the lower end of the scale and not disproportionate. The accused's suggested sentence was beyond the orbit of reality. For those reasons, the constitutional challenge was dismissed.
[1] [REDACTED] was found guilty, after trial, of the offences of aggravated assault, discharging a firearm with intent to wound, and using a firearm whilst committing the offence of aggravated assault.
[2] [REDACTED], for the Crown, submits the appropriate range of sentence in this case is five to six years, reminding the court that the offence of discharging a firearm with intent to wound carries with it a mandatory minimum sentence of four years as specified in s. 244(2)(b) of the Criminal Code.
[3] [REDACTED], on behalf of [REDACTED], asks this court to declare the mandatory minimum sentence unconstitutional and to sentence [REDACTED] to a total period of 12 months imprisonment after awarding credit of 68 days pre-sentence custody and a further 18 months to compensate for the bail conditions set on his release.
Factual Background
[4] On 16 August 2013, [REDACTED] and a group of his friends were socialising on a gazebo in front of an apartment building located at [REDACTED] in Toronto. Their meeting was interrupted by two youths: [REDACTED] and [REDACTED]. [REDACTED] was known to [REDACTED] and his friends. On a prior occasion, at the same location, he had been involved with an argument with one of [REDACTED]’s friends and pointed a gun at [REDACTED] and his companions.
[5] This time, [REDACTED] approached the gazebo with [REDACTED] and again produced a gun, waving it around in an intimidatory fashion before placing it in his waistband and departing. [REDACTED] was enraged by what he viewed as a brazen, disrespectful act of bravado committed for a second time. As [REDACTED] walked away, [REDACTED] gave chase.
[6] Tackling [REDACTED] from behind, [REDACTED] forced him to the ground and seized the firearm. He began shooting at [REDACTED] and [REDACTED], discharging five bullets. One shot hit [REDACTED] passing through his lower abdomen. [REDACTED] fled, leaving a stricken [REDACTED] to be pursued and further assaulted by [REDACTED] after he had fallen on the ground. [REDACTED] immediately left the scene, disposing of the gun before heading to a nearby mall to discard his clothing.
[7] Fortuitously, [REDACTED] survived the shooting and sustained only a fractured left pelvis bone which kept him in hospital for a week.
II. IS SECTION 244 OF THE CRIMINAL CODE UNCONSTITUTIONAL?
The Mandatory Minimum Sentence
[8] Section 244(1) of the Criminal Code reads as follows:
244 (1) Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person — whether or not that person is the one at whom the firearm is discharged.
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years; and
(b) in any other case, to imprisonment for a term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years.
[9] [REDACTED] argues that this penalty violates section 12 of the Charter of Rights and Freedoms which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
The Nur/Lloyd Test
[10] Prior to 2015, only one Supreme Court of Canada case had resulted in a mandatory minimum sentence being declared unconstitutional: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, where the court struck down the seven-year minimum sentence for importing narcotics under s. 5(2) of the Narcotic Control Act.
[11] In R. v. Nur, 2015 SCC 15, the court held that s. 95(1) of the Criminal Code, which set out a mandatory minimum sentence for possession of a prohibited or restricted firearm with ammunition, violated s. 12 of the Charter and could not be saved under s. 1. One year later, in R. v. Lloyd, 2016 SCC 13, the court took the same view of the one-year minimum sentence for trafficking controlled substances contained in s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act.
[12] In finding the minimum sentences unconstitutional, the court, in Lloyd and Nur, provided the following guidance for courts faced with a constitutional challenge to a mandatory minimum sentence:
(i) A mandatory minimum sentence will be found to be “cruel and unusual punishment” within the meaning of s. 12 if it is “grossly disproportionate” to the punishment suitable to the nature of the offence and circumstances of the offender: Smith, at p. 1073.
(ii) “Grossly disproportionate” means more than merely excessive and amounts to a sentence that is “so excessive as to outrage standards of decency.” The impugned sentence must be one that is “abhorrent or intolerable” to society: Smith, at p. 1072; Nur, at para. 39; Lloyd at para. 24; R. v. Ferguson, 2008 SCC 6, at para. 14.
(iii) In determining the constitutionality of a mandatory minimum sentence, a court must conduct a two-step analysis:
(a) The court must first determine what constitutes a proportionate sentence for the offence having regard to the sentencing principles contained in the Criminal Code. Doing so involves the identification of the “rough scale” of the suitable sentence;
(b) The court must decide whether the mandatory minimum sentence for the specified offence is grossly disproportionate to the fit and appropriate sentence. In other words, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If the answer is yes, the mandatory minimum sentence must be declared unconstitutional: Nur, at para. 46; Lloyd, at para. 22.
(iv) In answering (b), the court must consider the application of the mandatory minimum sentence not just to the offender bringing the application but also to others caught by the same provision. Thus, the court evaluates the fit sentence to the offender and a “reasonable hypothetical” offender convicted of the same offence.
Step One: Proportionality and the Rough Scale
[13] The first step involves the determination of what constitutes a proportionate sentence for the offence of pointing a firearm with intent to wound having regard to the principles and objectives of sentencing contained in the Criminal Code. Section 718 of the Code sets out the principles of denunciation, deterrence, rehabilitation, reparations, and responsibility.
[14] There can be no dispute that firearms offences are regarded as crimes that pose grave danger to the community: Nur, at para. 1. Moreover, it is clear that lengthy sentences are required to provide an effective deterrent to the commission of offences involving the use of a firearm. In R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), Armstrong J.A., at paras. 77-78, emphasised the point in the following way:
In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant:
It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.
There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed. I am satisfied that in this case, the mandatory life sentence with an increase in parole eligibility to 15 years satisfies that concern.
[15] [REDACTED] argues that, in determining proportionality, cases pre-dating the current mandatory minimum sentence are the most useful precedents as those decided after the creation of the current minimum contain sentences driven by the statutory penalty. Accordingly, he relies on cases such as R. v. Baxter, 1975 CanLII 1510 (ON CA), [1975] O.J. No. 1053 (C.A.); R. v. Nicholas, [1986] N.B.J. No. 909 (Q.B.); R. v. LaFond, [1988] S.J. No. 245 (C.A.); and R. v. Fraser, [1984] O.J. No. 195 (C.A.), where sentences significantly below the current mandatory minimum sentence were imposed.
[16] I find this argument to be illogical. The cases cited by [REDACTED] dealt with the social environment existing at the time they were decided. Since then, the climate has changed dramatically: in the last two decades, gun violence has become of increasing concern to Canadians. The corresponding evolution of the law was put into context by Moldaver J., dissenting in Nur, at para. 131:
Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as “a direct response to the scourge of handgun crime that plagues our country”: House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, at p. 1. The parliamentary committee studying those changes heard compelling testimony from law enforcement about the devastating impact of gun violence across Canada. Toronto Police Chief William Blair noted a “significant increase in the number of shooting[s]” in Toronto and a rise in gun-related homicides in excess of 85 percent from 2004 to 2005: ibid., No. 34, November 23, 2006, at p. 1. Due to the surge in shootings and gun deaths, 2005 was dubbed by local media as “the year of the gun” (ibid.).
[17] It should not be forgotten that even though the majority in Nur struck down the mandatory minimum sentence, it upheld the sentences under appeal, both of which exceeded the minimum. Significantly, those sentences were for the possession rather than the use of a firearm.
[18] More pertinently, appellate authority has established the range of between seven and eleven years for serious gun related offences: R. v. Bellisimo, 2009 ONCA 49, at para. 3; R. v. Jefferson, 2014 ONCA 434, at para. 14. In the latter case, the accused’s sentence of ten years imprisonment, after being convicted of discharge of a firearm with intent, was upheld on appeal.
[19] Using these cases, I find the rough scale of sentence for this offence to seven to eleven years.
[20] The foundation of a conviction under s. 244(1) of the Code is the use of a firearm coupled with the intention to cause harm to another [Emphasis added]. This situation is very different to Nur, which dealt with a penalty that covered a broad spectrum of culpability ranging from a “true” crime to the nature of a regulatory offence. A conviction under s.244(1) does not result in the prospect of the offender committing an offence at the lower end of the blameworthiness spectrum and therefore being punished unjustly.
[21] This rationale was apparent in R. v. Morrisey, 2000 SCC 39, where the four-year mandatory minimum sentence for criminal negligence causing death with a firearm was upheld by the Supreme Court of Canada. The court observed that the elements of the offence raised a high threshold which eliminated the accidental commission of the actus reus. At para. 36, Gonthier J. wrote:
…As I explained at paras. 17-24 above, Parliament has set a very high threshold that must be met in order to attract criminal liability under s. 220(a). One must demonstrate wanton and reckless disregard for life and safety. One cannot emphasize this point enough: this provision does not convict people who merely cause death unintentionally. In addition to causing death using a firearm, the Crown must establish that the accused acted in a manner that was a marked departure from the standard employed by a reasonable person. Their actions must be wanton or reckless, and deserving of criminal liability.
[22] The same analysis applies, in my view, to s. 244(1) of the Code, and defeats Mr. [REDACTED]’s argument that the punishment is grossly disproportionate because no harm is required to convict. The essence of s. 244(1) is that the offender used a firearm - a weapon that could potentially kill - and discharged it with the intention of wounding, maiming or otherwise endangering the life of another person. The fact that no one was hurt does not diminish the offender’s culpability.
[23] The issue of mandatory minimum sentences with respect to similar offences have been considered by other courts. The Supreme Court of Canada, in R. v. Ferguson, 2008 SCC 6, found that the mandatory minimum sentence for the offence of manslaughter committed with a firearm did not violate s. 12. In R. v. Oud, 2016 BCCA 332, the British Columbia Court of Appeal held that s. 244.2(3)(b) of the Code survived a s. 12 challenge because it was not a grossly disproportionate sentence. The court distinguished Nur noting the difference between the use and possession of a firearm. In R. v. Abdullahi, 2014 ONSC 272, McWatt J. upheld the constitutionality of the five-year minimum sentence for the offence of recklessly discharging a firearm. Finally, in R. v. Roberts (1998), 1998 CanLII 12247 (NB CA), 125 C.C.C. (3d) 471, the Nova Scotia Court of Appeal found the mandatory minimum sentence contained in what is now s. 244(2)(b) of the Code to be constitutional.
[24] Finally, the Supreme Court of Canada, in Morrisey, at para. 54, has explained the rationale for the mandatory minimum in relation to firearms even when their use is simply reckless rather than intentional:
Extra vigilance is necessary with guns, and while society would expect people to take precautions on their own, unfortunately people do not always do so. Consequently, Parliament has sent an extra message to such people: failure to be careful will attract severe criminal penalties. The sentence represents society's denunciation, having regard to the gravity of the crime; it provides retributive justice to the family of the victim and the community in general; and it serves a general deterrent function to prevent others from acting so recklessly in the future.
[25] For these reasons, I do not find s. 244(2)(b) to be grossly disproportionate for the offence having regard to the sentencing principles set out in the Criminal Code.
Step Two: The Application to [REDACTED]
[26] The second step of the Nur/Lloyd test comprises two parts. First, I must determine if the application of s. 244(2)(b) would result in a grossly disproportionate sentence for [REDACTED]. Second, I must decide whether the minimum sentence would provide a grossly disproportionate result if applied to a hypothetical offender convicted of the same offence.
[27] I note that [REDACTED] is a relatively young man, now 28 years of age. The Crown does not rely on a prior criminal history in the sentencing proceedings. [REDACTED] is from Guyana and lives in Brampton with his girlfriend, [REDACTED]. He has a young family consisting of five children and works in the construction industry from job to job. Ms. [REDACTED], the mother of his children, speaks highly of him both as a partner and a father. She has provided a letter to the court describing him as an extremely supportive individual who assists others in his community and acts as a positive role model for his children and others around him.
[28] In finding [REDACTED] guilty of the offences charged, there should be no illusions as to the seriousness of the crime. [REDACTED] deliberately opened fire on two men, intending to seriously injure them. A number of shots were fired. The fact that no one was killed was due to [REDACTED]’s inexperience with firearms and a huge stroke of luck rather than design. The victim in this case spent a week in hospital suffering from a fractured pelvis but I agree with Ms. [REDACTED] that a far more catastrophic outcome was averted by a matter of millimetres.
[29] I find that the circumstances of this case justify a sentence within the range specified in Bellisimo and Jefferson.
[30] On the other hand, there are also extenuating circumstances in this case: [REDACTED] has no meaningful criminal record, he is still relatively young, and the matter did not occur in a deliberate pre-meditated manner. I agree with Mr. [REDACTED] and Ms. [REDACTED] that [REDACTED] did not bring “a gun to a gun fight.” As both counsel submit, the most significant mitigation is the precipitating incident: if [REDACTED] had not engaged in the provocative behaviour that he did, there would have been no shooting.
[31] However, I disagree with Mr. [REDACTED]’s assertions that this was a split-second decision of bad judgment. I concur with the argument that these were fast moving events and I have no doubt that [REDACTED] regrets his actions having been found guilty. However, Mr. [REDACTED]’s characterisation is fatally undermined by the evidence. This was not a situation in which [REDACTED] shot [REDACTED] and, upon realising he had done so, immediately dropped the gun exclaiming “what have I done?”. This was a considered act of retribution.
[32] [REDACTED] was incensed by [REDACTED]’s intimidatory behaviour which he took as a grave insult. He pursued [REDACTED] with a single objective: [REDACTED] had to be shown in the plainest way possible that his conduct would not be tolerated. [REDACTED]’ wresting of the gun from [REDACTED] and its subsequent use was an act of anger which carried with it a stark message. Even after injuring [REDACTED] and seeing [REDACTED] flee, [REDACTED] did not stop. Still enraged, he followed a stricken [REDACTED] intending to inflict further harm before fleeing the scene and taking steps to dispose of the gun in nearby residences. Having done so, he went to the Jane Finch Mall and discarded his upper clothing in a further attempt to ensure incriminating evidence could never be found.
[33] Other cases provide a useful guide when seeking to determine the appropriate sentence. In R. v. Jackson (2002), 2002 CanLII 41524 (ON CA), 163 C.C.C. (3d) 451 (Ont. C.A.), a 20-year-old offender fired two shots from a handgun at a police officer, missing his target. He was convicted of a number of offences including discharging a firearm with intent to endanger life. In mitigation, he had a minor record with a single charge of assault and there were no injured parties in the case. The Court of Appeal for Ontario determined that a sentence of seven years was appropriate before subtracting 14 months of pre-sentence custody.
[34] In R. v. Addow, 2014 ONSC 3225, Quigley J. convicted a 20-year-old offender of similar offences to the case at bar. The offender had shot the victim in the back of his leg after an earlier confrontation. Quigley J. found the appropriate sentence for the offences of discharging a firearm and aggravated assault to be seven years and three months. Similarly, in R. v. Larmond, 2011 ONSC, Belobabba J. sentenced a 22-year-old shooter to a global sentence of seven years after the jury convicted him of discharge of a firearm with intent to wound and related charges. The judge found the shooting of the victim in the abdomen to be neither planned nor pre-meditated and the offender to have a “minor criminal record.” Acknowledging the range of seven to eleven years, the judge found that the sentence should be fixed at the lower end because the offender was subject to deportation after serving time. Finally, in R. v. Pocasangre, [2008] O.J. No. 3595 (S.C.J.), Trafford J. sentenced a 20-year-old offender to a period of six years after he had pleaded guilty to two counts of discharging a firearm with intent to wound.
[35] In light of these authorities, and the facts of this case, Mr. [REDACTED]’s suggested sentence of 12 months is beyond the orbit of reality. Indeed, the Crown’s submissions are at the very lowest end of the range of sentencing for this offence: [REDACTED] could easily have faced a much greater period of incarceration given this was a matter that proceeded to trial and the sentencing discount that normally accompanies a plea does not apply. That being said, in light of the Crown’s submissions, I am prepared to impose a sentence of six years for the offence as the suggested sentence is not so low as to be unfit.
The Hypotheticals
[36] The next stage of the Nur/Lloyd test requires the evaluation of the reasonably foreseeable application of s. 244(2)(b) to others convicted of the same offence.
[37] The “reasonable hypothetical” exercise ensures that the mandatory minimum sentence is not one that “casts its net over a wide range of potential conduct:” Nur, at para. 82; Lloyd, at para. 27.
[38] In Nur, the majority of the court was concerned about the sentence contained in s. 95(1) of the Code being applied not only to the offender who carried a loaded prohibited or restricted firearm “as the tools of his trade” but also to “the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but made a mistake as to where it can be stored:” Nur, at para. 82. The former would deserve at least the mandatory minimum sentence, but for the latter, a three-year minimum would be grossly disproportionate.
[39] In Lloyd, where the minimum sentence under attack was the one-year penalty contained in section 5(3)(a)(i)(D) of the Controlled Drugs and Substance Act, McLachin C.J.C., at para. 32, drew a similar distinction between the professional drug trafficker and the addict who was convicted for sharing a small amount of drugs with a friend or a spouse.
[40] The guidance offered by Nur and Lloyd in dealing with the application of the mandatory minimum sentence to the hypothetical offender can be set out as follows:
(1) The enquiry must be grounded in judicial experience and common sense with reference to existing case law to determine what might be reasonably foreseeable.
(2) Reasonable foreseeability includes situations which may reasonably arise but does not include speculation.
(3) The proffered hypotheticals must not be far-fetched, fanciful, or remote. The use of personal characteristics is permitted but those characteristics cannot be used to construct the most sympathetic circumstances imaginable. If that were permitted, any mandatory minimum sentence would be at risk of being struck down.
[41] Mr. [REDACTED] advances two hypotheticals that he claims demonstrate the gross disproportionality of the mandatory minimum sentence regime on others convicted of an offence under s. 244(1) of the Code.
Hypothetical #1
[42] The first hypothetical engages self-defence as defined in s. 34 of Criminal Code. The defence succeeds only where an accused commits the offence and:
(a) reasonably believes that force or a threat of force is being used against them; and
(b) the act constituting the offence is done for the purpose of defending themselves; and
(c) the act is reasonable.
[43] [REDACTED], in paras. 40-43 of his factum, describes the hypothetical as follows:
The complainant breaks into the accused’s home armed with a gun. The accused charges at the complainant and they have a struggle over the gun. When the accused disarms the complainant, the complainant takes a step back. The accused quickly shoots at the complainant with the intention of hitting him in the leg to incapacitate him but misses. The complainant runs off as a result of the attempt to shoot him in the leg. The homeowner makes it very clear to the police in his statement that his intention was to wound the complainant in order to incapacitate him.
There would be a reasonable perception of force, as the complainant broke into the accused’s home and was armed with a gun. Even though the complainant took a step back, the accused was still in a situation where it was unclear whether the complainant would still try to attack him. The second step would also be met as the accused would have shot at the complainant to incapacitate him and prevent a further attack. The third step, however would likely not be met as the accused would have used too much force, given the complainant was disarmed and took a step back. Although the accused missed the complainant, the use of force would still be considered excessive as he had the full intention of hitting him in the leg in order to incapacitate him.
The elements of discharge with intent to wound are made out as the accused would have intentionally discharged the firearm and with full intent to wound the complainant, as he wanted to incapacitate him. An accused in this situation would be facing a mandatory minimum of four years.
[44] Mr. [REDACTED] submits that, on the facts of this hypothetical, the first two branches of self-defence would be made out but the third would not be, resulting in a grossly disproportionate sentence.
[45] Hypothetical #1 founders when self-defence is properly evaluated. If the complainant was still in a position to attack when “he takes a step back,” self-defence would likely succeed. The accused would not be acting unreasonably in using the gun to defend himself because he was still faced with the threat of harm from an intruder who had broken into the house armed with a gun. As Ms. [REDACTED] points out, there is no obligation on the part of the accused to retreat from his home in the face of danger: R. v. Forde, 2011 ONCA 592, at para. 55; R. v. Docherty, 2012 ONCA 784; R. v. Cunha, 2016 ONCA 491, at para. 9. Nor is an accused person, in this type of stressful circumstance, expected to take the time to ruminate over the precise action needed to defend themselves: Cunha, at para. 7. If the Crown could not disprove the first two branches in this scenario, it is hard to see how it could disprove the third.
[46] If, on the other hand, a trier of fact found the accused’s actions to be unreasonable because there was no longer any danger, I see no reason why the accused, who fired a gun at an unarmed person posing no danger and risked killing him, should not be subject to the mandatory minimum sentence. Even though he missed the complainant, it is the intention to wound without reason that is the subject of the punishment.
[47] Even if it could be argued that four years is a harsh sentence, the test is not one of harshness but gross disproportionality. If it is found to be unreasonable to shoot an unarmed person even if they are an intruder, the sanction applies because the intention to wound or otherwise endanger life might result in far more perilous consequences: firearms cause deaths.
Hypothetical #2
[48] Mr. [REDACTED]’s second hypothetical is set out in paras. 46-47 of his factum and is reproduced as follows:
Two individuals agree that one person is going to shoot another with a pellet gun as a joke or prank. The individual who is getting shot has agreed to this arrangement and the individual who is doing the shooting is discharging a firearm with full intent to wound, as that forms part of the joke. The elements of the offence are made out as the accused will be discharging a firearm intentionally. He would have the intent to wound the individual as he has knowledge firing the gun would wound the person and he intends to wound the person as that is part of the humour of the situation. The elements of discharging a firearm with intent to wound would still be met if the accused had the intention to hit the target but missed. A pellet gun that can cause bodily harm would also be classified as a firearm and thus, would meet the requirements that a quote firearm is discharged.
[49] Mr. [REDACTED] argues that this is a reasonable hypothetical and cites the US television show and film series “Jackass” as examples of this type of prank being committed. For the following reasons, I disagree.
[50] First, I find the scenario to fall within the far-fetched, fanciful, and remote category of hypotheticals described in Nur and Lloyd. A television show produced in the United States featuring crude, dangerous, and self-harming stunts is hardly the basis for a sound “reasonable hypothetical.” I would also add that, in Canada, there can be no consent to the infliction of actual bodily harm: R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714.
[51] Second, leaving aside the fanciful nature of the hypothetical, the pellet gun could only be captured by s. 244(1) of the Code (and thereby attract the minimum sentence) if it fell within the definition of “firearm” as set out in s. 2 of the Criminal Code which reads:
firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; (arme à feu)
[52] In Oud, the court, faced with a similar argument, observed, at para. 47, that it was “not apparent that firing a projectile from a pellet gun or air gun with the capacity to cause serious bodily harm or to kill is far less serious than discharging a regular gun.”
[53] If the pellet gun in this hypothetical was incapable of causing serious harm, it could not be classified as a “firearm” and would not be captured by the parameters of s. 244(1). If the opposite were true, it is unclear why the use of such a weapon, even during game play, should be immune from the minimum sentence. The potential harm caused by the pellet gun would be the same as a real firearm; the fact that its use occurred in game play would not make any resulting sentence grossly disproportionate. This point was made in Morrisey when the Supreme Court of Canada dealt with a similar hypothetical. At para. 53, Gonthier J. explained why playing with firearms was equally deserving of the mandatory minimum sentence as other uses, when he stated:
…Perhaps the most egregious hypotheticals reviewed are the individuals playing with guns. Firearms are not toys. There is no room for error when a trigger is pulled. If the gun is loaded, there is a sufficient probability that any person in the line of fire could be killed. The need for general deterrence is as great (if not greater) for the hypothetical offenders playing with guns as it is for people such as the appellant. Considering the gravity of the offence, the denunciation and retributive justice principles satisfied by the minimum sentence are equally applicable in this hypothetical. In such circumstances, there can be no question that the four-year minimum is as appropriate as it is for the appellant.
[54] Moreover, Gonthier J, at para. 54 re-iterated the point of the mandatory minimum sentence in the case when he stated that “the four-year minimum equally sends a message to people who are in a position to harm people to take care when handling their weapon”.
[55] Accordingly, I find neither hypothetical to be of persuasive value and, for the reasons set out above, the constitutional challenge to s. 244(2)(b) of the Criminal Code is dismissed.
III. PRE-SENTENCE CUSTODY CREDIT
[56] Having determined that a global sentence of six years is appropriate in this case, I turn to the issue of pre-sentence custody.
[57] There is no dispute that [REDACTED] was incarcerated for a total of 45 days prior to being released on bail. Pursuant to R. v. Summers, 2014 SCC 26, he is entitled to a credit of 1.5:1 for each day, an equation which results in a total of 68 days, when rounded up to the nearest whole number.
[58] The contentious issue in this case is whether his bail conditions justify the award of any additional credit.
[59] Upon release, [REDACTED] was subject to house arrest from 3 October 2013 to 25 September 2015, a total of 722 days. On 25 September 2013, bail was varied to a curfew commencing at 10 p.m. and ending at 6 a.m. the next day. To today’s date, these conditions have been in place for a total of 559 days. From the submissions of both parties, I understand that the Crown agreed to delete the house arrest condition as early as 14 December 2014, but due to a miscommunication, that variation was not realised until the 25 September date.
[60] Mr. [REDACTED] submits that precedents reveal an average discount formula of 0.4 for each day of house arrest, and 0.3 days for each day that [REDACTED] was subjected to a curfew. Using this formula, Mr. [REDACTED] asks the court to award pre-sentence credit of 515 days – approximately one year and five months – and subtract that from the ultimate sentence.
[61] I reject this position for the following reasons.
[62] First, it is clear from appellate authority that there is no formula to be applied in calculating this type of credit and such an award lies within the discretion of the trial judge: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 37; R. v. Pomanti, 2017 ONCA 48, at para. 34.
[63] Second, the “formula” put forward by Mr. [REDACTED] ignores the obvious reality that bail is not jail: R. v. Ijam, 2007 ONCA 597, at para. 36. In R. v. Lindsay, 2009 ONCA 532, at para. 45, MacPherson J.A. made the following apposite comments:
Finally, it should not be forgotten that bail is the opposite of incarceration. Accused persons almost always seek bail in order to stay out of jail until their trial: see R. v. Panday (2007), 2007 ONCA 598 (CanLII), 226 C.C.C. (3d) 349 (Ont. C.A.) at para. 31. Accordingly, although judges must consider bail on stringent conditions as a potential mitigating factor, it does not follow that credit in the form of a reduced sentence should always be given.
[64] Finally, in R. v. Siconolfi, 2015 ONCA 896, where the appellant was placed under house arrest for two and one half years, the sentencing judge declined to give any credit in the absence of any evidence of prejudice suffered as a result of those terms. The Court of Appeal for Ontario upheld that decision.
[65] In the case at bar, there was no evidence led about the specific impact of the house arrest conditions. Mr. [REDACTED] submitted that [REDACTED] was a manual labourer engaged in the construction industry but no documentation was provided to demonstrate that his bail deprived him of any job opportunities. I heard from Ms. [REDACTED] that [REDACTED] did, at one stage, request the Crown’s consent to vary bail and delete the house arrest condition so that he could work. When the Crown asked for a letter from a prospective employer, none was ever produced and the variation request was not pursued at that point. Notwithstanding the dearth of evidence, I am prepared to award some credit for the time spent under house arrest.
[66] With respect to the curfew, there is no evidence of any prejudice. At its highest, the curfew condition was no more than an inconvenience: [REDACTED] is the father of five young children and would, in any event, have been expected to be spending the majority of the night time hours at home with his family. Accordingly, I award no credit for this period of time.
IV. CONCLUSION
[67] The constitutional challenge to s. 244(2)(b) of the Criminal Code is dismissed.
[68] [REDACTED] must serve a sentence of six years imprisonment concurrent on the counts of aggravated assault and discharging a firearm with intent to wound. From that time, I subtract a period of six months which includes the 68-day equivalent of the time spent in pre-sentence custody and a further period just shy of four months to account for the time spent on house arrest. The total remaining sentence after pre-sentence custody credit is awarded amounts to five and one half years.
[69] The remaining count of using a firearm whilst committing the offence of aggravated assault is stayed pursuant to R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[70] I also order that a DNA sample be provided under the primary ground and a lifetime weapons prohibition order be made under s. 109 of the Criminal Code.
