Jumping to address growing recognition of gun crime

Abdiaziz Omar had a loaded 357 Taurus revolver. The police found him in possession of it, contrary to section 95 of the Code. He was carrying it around in his SUV, “concealed in a compartment under the cup holder in the centre console”. He was charged. He pleaded guilty. The sentencing judge noted, inter alia, that Omar posed “an immediate danger to the public”. Omar was sentenced to 6 years in jail. He appealed: 2015 ONCA 207.

Omar argued that the trial judge erred in his application of the “jump principle” and consideration of rehabilitative prospects. In considering this submission, the court noted the following:  (i) Omar had previously been convicted of the same offence (and other offences) for which he received a sentence of 6 and ½ months in jail; (ii) this first penitentiary sentence; (iii) Omar sought a sentence of four to five years jail.

While there were rehabilitative prospects and the sentence was a significant increase, the Court of Appeal noted that the trial judge was alive to these issues, citing the following passage from the trial judge’s reasons:

[H]owever, I think in the circumstances it may not adequately reflect the accused’s prospects for rehabilitation, particularly in light of the support of his family and friends in the community. I must also be cognizant of the ‘jump principle’. I must also consider this is Mr. Omar’s first penitentiary sentence and I must avoid imposing a crushing sentence, but a sentence still that will adequately address the paramount concerns of denunciation and deterrence.

The Court of Appeal dismissed the appeal. The trial judge made no error in principle and the sentence was fit. In conclusion the court noted that the range of fit sentences for this offence is “most significantly affected by growing judicial recognition of the reality of gun crime, as it should be” [@8].


Cutting No Slack on Quantum in True Crime Sentencing

Andre O’Mar Slack was sentenced to eight years imprisonment in a federal penitentiary for weapons-related offences. His convictions included the possession of a loaded restricted firearm, and the unauthorized possession of a firearm – contrary to sections 95(1) and 91(1) of the Criminal Code. His 95(1) conviction was stayed in accordance with Kienapple.

Slack appealed from sentence based on two grounds.

First, Slack argued the sentencing judge erred in failing to grant enhanced credit at the rate of 1.5:1 for pre-sentence custody.

Second, Slack argued the sentencing judge erred by using the five-year mandatory minimum sentence set out in s. 95(2) of the Code as a “sentencing floor”, when the mandatory minimums in both R v Nur, 2013 ONCA 677 and R v Charles, 2013 ONCA 681 (both cases subsequently heard and reserved on November 7, 2014 at the Supreme Court of Canada) were held to unconstitutional [paras 5-6].

Slack’s first ground of appeal was successful. Based on Slack’s institutional conduct, the sentencing judge had declined to grant any enhanced credit for pre-sentence custody, finding that enhanced credit was not necessary to achieve a fair sanction based on the Court of Appeal’s decision in R v Summers, 2013 ONCA 147. However, the sentencing judge did not have the benefit of the Supreme Court’s decision in Summers (2014 SCC 26). Writing for the Supreme Court, Karakatsanis J outlined that pre-sentence custody is generally sufficient to give rise to the inference that the offender has lost eligibility for parole or early release, which in turn justifies enhanced credit. It falls to the Crown to challenge this inference. The Crown can advance such a challenge by demonstrating that the offender’s bad conduct renders it unlikely that parole or early release will be will be granted: see Summers, supra and R v Houlder, 2014 ONCA 372 [para 10-15].

Here, it fell to the Crown to counter the available inference. While Slack had three documented incidents of misconduct during his pre-sentence custody, the Court of Appeal concluded the sentencing judge fell into error by denying enhanced credit based solely on this evidence. Slack’s institutional record was thin, and the Crown was unable to demonstrate such misconduct would disentitle him to parole or early release. Further, the authority to deny statutory release is narrow, and unlike the regime which applies to provincially-incarcerated inmates, loss of credit towards early release is not a sanction that may be imposed for misconduct under the Corrections and Conditional Release Act (CCRA). The minor incidents which took place in pre-sentence custody did not give rise to the type of reasonable grounds required to demonstrate a denial of parole ineligibility or early release [paras 16-20].

Although the Court of Appeal set aside the sentencing judge’s determination of credit and substituted credit to be granted at 1.5:1, Slack’s second ground of appeal failed, regarding the quantum of sentence imposed.

The Court of Appeal clarified that while the mandatory minimums in Nur –three years for a first conviction under s. 95(1) – and the companion case Charles –five years for a second or subsequent conviction under s. 95(2)(a)(ii) and s. 95(1)– were both struck down, nothing in those cases displaced the developed sentencing range applicable to offenders convicted of a second or subsequent s. 95(1) offence. Both Nur and Charles affirm that offenders convicted of “truly criminal conduct” in relation to firearms offences must receive exemplary sentences that emphasize deterrence and denunciation [para 23].

Slack’s case was just that: one of true crime. It was his second s. 95(1) offence. He had a lengthy criminal record, which included convictions such as the use of an imitation firearm during the commission of a robbery, assault, trafficking in a scheduled substance, and breaching a firearm prohibition order [para 24].

Further, the Court highlighted that Slack was in unauthorized possession of loaded, restricted firearm in circumstances that posed a real and immediate danger to the public. The gun was readily accessible in an unlocked, running car; which Slack had abandoned in a public parking lot, in broad daylight. Given his serious and lengthy record, the nature of the predicate offences, and the four-year sentence received for his first s. 95(1) offence, the Court of Appeal concluded that Slack’s conduct could only be viewed as falling at the “true crime” end of the s. 95(1) spectrum discussed in Nur and Charles. The convictions cried out for a substantial penitentiary sentence [paras 25-26].

For these reasons, there was no basis to interfere with the eight year sentence imposed by the sentencing judge for the firearms-related offences. Therefore, the Appeal was only granted in part, with respect to the pre-sentence custody.


This case highlights that the impact of the Summers decision on the granting (and challenging) of enhanced credit is necessarily different depending on whether the offender is serving a provincial or federal sentence - different regimes govern early release. Still, while Slack was found to be entitled to this credit, the Court was unequivocal that the quantum of sentence imposed was justified given the “true crime” nature of both the offences, and Slack’s consistent pattern of criminal conduct. The striking down of the mandatory minimums in Nur and Charles, which the Supreme Court has yet to rule on, does nothing to negate the often serious penitentiary sentences required in cases such as these.


When is a "firearm" not a "weapon"?

On November 5, 2014 the Supreme Court will hear argument in the matter of R v Dunn, 2013 ONCA 539.  The appeal will resolve the age-old question (or at least a burning one in Ontario) – when is a “firearm” not a “weapon”?

Christopher Dunn was being watched by some investigators on behalf of the Workplace Safety Insurance Board. The investigators noted that Dunn met with another man; during that meeting Dunn pulled out, what appeared to be, a pistol from his jacket and seemed to be pointing it at the other man. The pistol was put away and Dunn left. The investigators contacted the police and alerted them to what he had seen.

The police later attended at Dunn’s trailer and ultimately seized what turned out to be a Crosman Pro77 airgun that fires .177 calibre spherical BBs propelled by means of compressed air from a canister. The airgun was determined to be functional and was loaded with a partly used CO2 cartridge; there was no ammunition in the magazine. 

A firearms examiner who gave expert evidence agreed in cross-examination that this type of airgun can be purchased without the purchaser’s having to produce any documentation, as long as the muzzle velocity does not exceed 500 feet per second (“ft./s.”). The respondent’s airgun had an average velocity of 261.41 ft./s.
The expert gave evidence about a scientific study done to determine the velocity needed for a BB to penetrate the human eye – the so-called pig’s eye study, which used pig’s eyes because of their similar size and composition to the human eye. According to the study’s findings, any shot exceeding 214 ft./s. was capable of causing serious injury. A BB shot travelling at this speed would penetrate the eye of a 10-month old pig some of the time. A BB travelling at 246 ft./s. would penetrate the eye 50 percent of the time. The respondent’s airgun thus exceeded both thresholds.
The expert further testified that this particular airgun is built to closely resemble a Steyr MA1 9mm pistol, a conventional semi-automatic handgun. [@7-9]

Dunn was charged with various offences including handling a firearm (s 86), pointing a firearm (s 87), carrying a weapon for dangerous purpose (s 88) and carrying concealed weapon (s 90). 

In considering those charges the trial judge noted that the offence of pointing a firearm “required proof that the airgun in question is a firearm, and that the other three counts required proof that the airgun was either a firearm or a replica firearm”. Citing McManus, 2006 CanLII 26568 (ONCA) the trial judge held that if a the firearm “is not a ‘real powder fired bullet shooting gun’, the Crown must prove that it is a weapon, as defined in s. 2 of the Criminal Code, before any finding could be made that it is a firearm” [@11]. On the facts the trial judge “held that the Crown had failed to prove that the airgun was used or intended to for use in any of the ways specified in s. 2. It was therefore not a weapon, and could not be a firearm” [@13]. The Crown appealed.

On appeal the Crown sought to argue that McManus, was wrongly decided and contrary to binding authority, namely Felawka, 1993 CanLII 36 (SCC). The Court of Appeal agreed to sit five members in order to consider that issue.

In considering the appeal the court noted that the “appeal turns on the proper interpretation of the terms ‘firearm’ and ‘weapon’ in the Criminal Code. There is only one issue in this appeal: must an object (to use a neutral word) that falls within the definition of ‘firearm’ in s. 2 also meet the definition for ‘weapon’ in the same section. The interpretation issue arises from the fact that each definition refers to the other” [@14]. This is evident from a review of the definition of weapon in the Code which states that it is any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person – and without restricting the generality of the foregoing includes a firearm.

After reviewing Felawka and McManus the court concluded that the Crown need not prove that an object which is a firearm must also fall within paragraph (a) or (b) of the definition of weapon. To the extent that McManus held otherwise it was wrongly decided.

Not only was this conclusion reached on the basis of the binding decision in Felawka but also on the basis of statutory interpretation.

To conclude, in my view, there is no ambiguity in the definition of firearm in s. 2 when regard is had to the legislative history and the context and scheme of the legislation. Barrelled objects that meet the definition of firearm in s. 2 need not also meet the definition in para. (a) or (b) of weapon to be deemed to be firearms and hence weapons for the various weapons offences in the Code, such as the offences charged against the respondent in this case. [@66].

The Supreme Court is now set to consider the issue. The Court of Appeal’s ruling is compelling. Not only did it conclude that McManus conflicted with Felawka but based on a thorough statutory interpretation analysis, the court came to the same conclusion. But, the courts are not Dunn yet considering this issue…stay tuned.


New & Notable: Ontario Court of Appeal opines, yet again: guns and drugs don't mix

Wong was convicted of ten gun and drug related offences.  One of them was possession of a loaded firearm (s. 95(1) of the Criminal Code), which carried a mandatory minimum 3 year jail sentence.  He received a global sentence of 3 years on all of the gun and drug charges.  The Ontario Court of Appeal overturned his conviction on the s. 95(1) charge on the basis that the trial judge erred in finding that possession of an unloaded firearm with readily accessible ammunition was included in the offence of possession of a loaded firearm. [2012 ONCA 432]  Not surprisingly, Wong sought to appeal his sentence.  With the mandatory minimum sentence no longer at play, he argued that a 3 year sentence was excessive and sought a conditional sentence.  The Court of Appeal said no: 2012 ONCA 767.


The trial judge was clear in his reasons that the overall length of sentence was determined by the mandatory minimum.  Wong argued that he was 23, had no record and had been on house arrest for one and a half years pending trial.  He said that his drug trafficking only lasted for 2-3 days and that he was not a danger to society [paras 5 and 7].

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New & Notable: Addressing the Scourge of Guns and Drugs

Tyler Batson shot and killed Paul Marcelus in an Ottawa apartment on 17 December 2008. Batson testified at his trial that he shot Marcelus during a struggle that had erupted when he attended the apartment to buy drugs. The Crown had alleged that the shooting was an execution. 
Batson was convicted of second-degree murder – apparently the jury had not found, beyond a reasonable doubt, that the shooting was an execution.
Last week Justice Roy sentenced Batson to life imprison (the mandatory sentence) with an order that he serve 12 years before being eligible for parole. As reported by Andrew Seymour in a 9 September 2011 Ottawa Citizen article, Judge condemns guns, drugs before sentencing Batson to life Justice Roy offered the following comments in support of increasing the parole ineligibility period above the minimum 10 years: “The combination of guns and drugs result in very tragic and serious, deadly consequences”.

The concern over the carrying and use of guns in the community has also recently been noted in the case of R v Chevers, 2011 CarswellOnt 8844, 2011 ONCA 569. Chevers was convicted of attempted murder. The trial judge described the aggravating circumstances in that case as follows:
The facts here are alarming. It calls for, because of the nature of the event and specifically the use of a handgun, greater sanctions for the benefit and welfare of our community and for the public interest.

Here we have a situation where Mr. Chevers, in an unprovoked, premeditated, cold-blooded manner, attempted to murder [the victim], and by mere chance, he missed: probably because he was using a 22 calibre weapon [para 4].

Chevers was sentenced to 15 years jail. He appealed.
The Court of Appeal held that sentences for “planned executions involving the use of loaded firearms” warrants double digit sentences. In upholding the sentence the court noted that the premeditation, use of a prohibited handgun, the appellant’s criminal record and the impact on the community justify such a sentence [paras 8-9].
DG Mack

Quotable Quotes: Firearm Sentence

In the recent case of R v Truong, 2010 ONSC 7251, 2010 CarswellOnt 10075, [2010] OJ No 5750 Code J offered the following quotable quote at para 17:

In cases involving possession of loaded handguns, like the case at bar, the authorities are clear that exemplary or denunciatory sentences must be imposed because of the grave danger to the public posed by the proliferation of handguns in this city. General deterrence, specific deterrence and denunciation are unquestionably the most important sentencing principles. In this regard, I simply echo and adopt what was said by Armstrong J.A. in R. v. Danvers (2005), 199 C.C.C. (3d) 490 at paras. 77 and 78 (Ont. C.A.): 
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.

DG Mack