New & Notable: Justice avoid the penitentiary

Daniel McCue was sought by the police.  Shortly after they found him McCue fled from them. The chase took them through several back yards but he was eventually apprehended. A search of the route of the chase led to the discovery by the police of a loaded nine-millimeter semi-automatic handgun. 


The accused was charged with numerous firearm offences including two breaches of separate firearm prohibitions. He was also charged with a mischief to property from earlier the same day unrelated to the possession of the gun. After a trial, the accused was sentenced to two years less a day in the reformatory having been given credit on a 1:1 basis for 367 days of custody prior to sentencing. The Crown launched a sentence appeal.

R v McCue 2012 ONCA 773 raises a few interesting questions. One is whether it is appropriate for a court to adjourn a case to allow an in-custody accused to accumulate further “dead time” in order to avoid a penitentiary-length sentence. Another is how this offence should be characterized.


The adjournment

It is curious how this predicament came about. After submissions on sentence, the trial judge decided that a sentence of three years was appropriate and that the accused should get 1:1 credit for his pre-sentence custody. If the sentence had been imposed on that day, McCue would have gone to the penitentiary.

The view of the sentencing judge was mainly based on a letter from the accused that stated, not surprisingly, that his rehabilitative prospects would be better in the reformatory, as opposed to the penitentiary. In order to achieve this result the sentencing was adjourned an additional 77 days.

On the sentence appeal the Crown argued that this was an error and conflicted with section 720(1) of the Criminal Code that provides that “a court shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine the appropriate sentence to be imposed.”

Without commenting on the statutory interpretation approach of the Crown, the Court of Appeal held that the adjournment was inappropriate in the circumstances of this case for two reasons:

First, the adjournment was premised on the trial judge’s determination that a sentence totalling three years was appropriate.  As we will explain below, the seriousness of the offences and the respondent’s criminal background required a sentence well in excess of three years.  Consequently, on a proper application of the applicable sentencing principles, no purpose could be served by adjourning the sentencing for over two months to allow the respondent to accumulate further “dead time”.

Second, even if an adjournment to allow an accused to accumulate sufficient “dead time” so that he or she can be sent to the reformatory rather than the penitentiary might be appropriate in some circumstances, there was no evidence justifying an adjournment for that purpose in this case.  If an accused asserts that the nature of the facility in which he or she may be imprisoned is sufficiently important to fixing the appropriate sentence to merit a considerable delay in sentencing, the onus is on the accused to put the necessary information before the trial judge identifying the benefits to the accused flowing from incarceration in a particular institution or in the reformatory system.  The material must allow the trial judge to make an informed decision as to the potential placement of an accused within the reformatory or penitentiary systems, the programs available at the various institutions to which the accused may be sent, and the merits of the contention that the principles of sentencing would be better served by placing the accused in one system as opposed to the other [paras 9-10] [emphasis added]


It is worth noting that the Court of Appeal did not state that the practice of delaying the imposition of sentence so that the accused can be sent to a reformatory instead of a penitentiary is inappropriate.  Instead the Court simply finds that there was no basis to justify an adjournment in this case as there was no evidence that the reformatory was the right type of institution for McCue.  The court stressed that sentencing decisions must be based on actual evidence before the sentencing court. The answers of whether and when this practice is an appropriate one will have to wait for another day possibly in the context of a court attempting to grapple with imposing a mandatory minimum sentence.


The proper characterization of the gun offences

The trial judge found that the facts of this case to be a minimal fact situation in the context of a restricted and loaded firearm. She found that there was no attempt to use it and that McCue disposed of it at the first opportunity in an effort to avoid its detection.

The Court of Appeal strongly disagreed with this characterization and forcefully pointed out that a sentence well in excess of three years was called for on the possession offence alone:

The facts underlying the gun offences are not properly described as “minimal”.  The respondent had a loaded gun when he left his residence and travelled in a taxi.  He clearly intended to have the gun on his person in public places.  His possession of a loaded firearm while attempting to escape the police is a significant aggravating factor.  He gets no credit for throwing the gun away while attempting to avoid capture.  Furthermore, discarding a loaded handgun in someone’s backyard in a highly populated residential area invites tragedy.  Had the police not located the loaded gun, who knows what might have happened?  Finally, we see no reason to infer anything other than that the respondent intended to “actively use” the loaded gun for some purpose if he saw the need.  Why else would he have it in his possession? [para 15].

In the ongoing struggle against the scourge of gun crime, the words of the Court of Appeal in McCue are an important reminder of the sentences that gun offences can be expected to attract. Possession of a loaded, prohibited firearm, intending to take it to public places, even without firing it, is a serious offence.  The Court in McCue ultimately determined that the facts of this case and the circumstances of the offender called for a four-year sentence for the possession of the loaded prohibited firearm alone.