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Firearms Sentencing:

While it appears there is precedence for non-custodial sentences in many circumstances, it is heavily conditional. The Judge must determine that it meets all necessary criteria, primarily that the accused is at low risk of reoffending and for exceptional circumstances. While charges of careless storage and possession of a restricted firearm in themselves are not overtly dangerous, they often accompany other charges. These other charges frequently included assaults and murder. Thus, in many, or most trials, it was determined that non-custodial sentences were often inappropriate given the circumstances and/or myriad of other charges. Many of these cases seem to take place outside of Ontario, specifically in British Columbia, Canada.

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1.) R v. HM, 2019 ONCJ 790

H.M. is a young man being sentenced, regarding a charge for possession of a prohibited weapon. He was initially found by police with the weapon tucked into his pants, as well as a second handgun in his vehicle. It is also worth noting that the Judge found that his s. 8 and 9 Charter rights had been violated. However, evidence was not excluded. At the time of his arrest, H.M. was 16 years old at the time of sentencing, he was 18 years old. The Judge found that neither a conditional nor non-conditional discharge would be appropriate given the circumstances of the crime. 

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It was also noted that the accused was noted as having a risk for continuing behavioral difficulties. H.M. was also diagnosed with ADHD and other cognitive deficits. H.M. was sentenced to six months of deferred custody, followed by 12 months of probation. No jail time was handed out.

 

 

2.) R v. MANUGE, 2016 BCPC 68

Among several charges, Mr. Manuge was charged with careless storage of a firearm. He was also noted as sending several threatening emails to Veterans Affairs. Mr. Manuge, a veteran, also suffered from PTSD, depression, and chronic pain. It is also important to note that at the time of the offence, his wife was also suicidal.  Up until the trial, he had been fully compliant and had no previous criminal record. It was determined that much of the accused’s actions could be attributed to his mental health condition. On the basis that he continued to address his mental health and work on rehabilitation, he was given a suspended sentence, with two years’ probation. Along with the main sentence, he was also served a firearms prohibition order and an order for forfeiture of owned weapons.

 

 

3.) R v. KRT, 2019 SKPC 37

The accused, K.R.T. was a young person at the time of the charge. Among other charges was a charge of possession of a firearm without license (91(1)). The accused was 17 years old at the time of the offence. The core of the charge involved second degree murder contrary to CC s. 235(1). Due to much work on the part of the defendant, having worked extensively with a mentor, as well as strong family support and no previous criminal record, the Defence submitted K.R.T. should be released. The Judge also decided that it was possible that, while the charges themselves were not exceptional, that the circumstances surrounding the charges could be exceptional. K.R.T. was released with an undertaking, surmising in no jail time. He was however to cease contact with all individuals present that night of the charge and those that presented ill-influence, and attend school and all counseling and mentoring sessions, moving forward.

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4.) R. v. SENIOR, ONSC 2729 2021

 

Facts:

Senior was a constable with the York Regional Police (YRP). At the time of the alleged offences, he had been a police officer for approximately 15 years. As part of the investigation, two officers were working in an undercover capacity.

 

On October 9, 2018, Senior was arrested in relation to allegations stemming from a YRP investigation. Mr. Senior was charged with 14 separate offences, including theft under $5000, 2 Counts of uttering a forged document, 2 Counts of unauthorized use of a computer, 3 Counts of breach of trust,  1 Count of possession of a firearm obtained by theft, 1 Count of possession of a weapon for a dangerous purpose, 1 Count of attempted robbery, and 1 Count of trafficking drugs.

 

Issues:

There are a few issues to this case. One issue is whether Mr. Senior had a lack of skill in managing informants' procedures. Another issue stems from whether the facts of corruption against Mr. Senior in this trial were committed under the  “provocation”  from the influence of the  undercover officers. The last issue is whether Mr. Senior should be found guilty of all charges.

 

Law/Analysis:

The following are used to analyze facts of this case:

• Canadian Charter of Rights and Freedoms, 1982, s. 11(d).

• Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 2(1).

• Criminal Code, R.S.C. 1985, c. C-46, s. 2, s. 24, s. 25.1(2), s. 122, s. 321, s. 342.1, s. 343, s. 344, s. 366(2), s. 486.5(1).

• Narcotic Control Act.

 

Conclusion:

Senior was found guilty of 7 offences: theft under $5000; uttering a forged document; unauthorized use of a computer; breach of trust, possessing a firearm obtained by crime; possessing a weapon for a dangerous purpose; and drug trafficking. The judgment date was April 21, 2021.

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5.) R v. COLDIN 

 

Charges:
Brian Coldin was charged on September 9, 2015, on an 11-count indictment containing the following counts:

• Arson for a fraudulent purpose (2 counts)

• Arson (2 counts)

• Counselling the commission of an offence not committed (2 counts)

• Possession of a firearm contrary to an order (1 count)

• Careless storage of a firearm (2 counts)

• Possession of property obtained by crime (2 counts)

 

Crown and Defence:

The Crown withdrew three of these counts; careless storage of a firearm and charges of possession of stolen property that pertained to a wood chipper and a Kubota tractor – before the trial began.

The Defence has made 4 applications, seeking the following relief:

1. Quashing a one-party authorization made pursuant to s. 184.2 of the Criminal Code for interception of communications and excluding the evidence obtained by that authorization;

2. Excluding the evidence of a Police agent, Ken Shearer, for failing to comply with “standards of conduct”;

3. Excluding the evidence of Ken Shearer due to abusive conduct by the investigators, Det. Randy Graham and Det. Peter Marshall; and,

4. Staying the charges due to abuse of process caused by late disclosure.

 

Incident:

The genesis of the charges stems from an informant, Ken Shearer, who was an acquaintance of Brian Coldin. Coldin owns the High Falls Resort located in the Town of Bracebridge. The resort includes a motel, cabins, and a camping area in addition to several other buildings. Ken Shearer performed various jobs at the resort and he regularly went there to pick up cans and bottles for recycling.

 

In 2010, a cabin at the High Falls Resort burned to the ground. The investigation led the authorities to find flammable liquids and torches in two other cabins adjacent to the one consumed by fire. The Fire Marshall's Office ruled the fire to be arson. Coldin was not at the resort at the time of the fire. He received an insurance payout for that fire in the amount of $57,692.

 

In November of 2014, Ken Shearer told a Police Officer, Det. Randy Graham, that Coldin was responsible for the 2010 fire. Shearer was contemplating acting as a Police agent, and offered to wear a wire to capture conversations with Coldin about the arson. No further action was taken at that time.

 

Investigation:

In June of 2015, Shearer spoke with Det. Graham again, this time telling him that Coldin had been calling him “to get the guys that burned the cabin for him to do it again”, and that Coldin now wanted the main building at the resort “torched”. Thereafter, the investigation unfolded as Project Dareton.

 

In Mr. Coldin’s first application, he seeks to have the audio/video evidence obtained through a one-party consent authorization excluded, pursuant to s. 184.2 of the criminal code. 

 

Interceptions were permitted in respect of the offences of arson, fraud, conspiracy to commit, attempting to commit or counselling in relation to those two offences. The authorizing Justice also issued a general (video) warrant, a transmission data recorder warrant and an assistance order, as authorized by s. 184.2(5).

 

Arguments:

Mr. Coldin argues that the authorization warrants should not have been issued, arguing that the Police did not have reasonable and probable grounds to believe that the proposed interceptions and other seizures would produce information about the past or future commission of criminal offences. The affidavit field was incomplete and misleading in significant respects, such as, it failed to fully disclose all information known to the Police showing Shearer’s credibility and reliability. 

 

It is undeniable that the authorization and warrants at issue allowed the Police to do things that interfered with Mr. Coldin’s reasonable expectation of privacy. Mr. Coldin also challenged the way the authorization was carried out, arguing that the scope of the authorization was exceeded. 

 

The consent authorizations require that the issuing Justice be satisfied that there are reasonable and probable grounds to believe that an offence has or will be committed and the information concerning the offence will be obtained through the interception required.   

 

The primary basis of the affiant’s belief that arsons have been and will be committed by Mr.Coldin comes from Ken Shearer’s information that he had arranged two previous fires on behalf of Mr.Coldin, in 2010 and 2013, and that Mr.Coldin had approached him again to do the same in 2015.

 

Background Information:

The Police did a thorough inquiry of Ken Shearer, which included a psychiatric assessment. 

 

In that application, the defence asserted that Det. Graham was knowingly and deliberately blind to the fact that Ken Shearer gave him inconsistent information about Mr.Coldin’s contact with an arsonist, that he failed to confront Ken Shearer on his inconsistent statements, and that he was complicit in permitting an unreliable and dishonest person to assist them to collect evidence. The defence also argued that Det. Marshall was also knowingly and deliberately blind to the fact that Ken Shearer was dishonest about the information provided to the Police regarding the chronology of the arson and the attempted arson that took place on the neighbouring cottages in the summer and fall of 2013. 

 

The Crown ruled that the evidence displayed by the defence was not enough to persuade that a ruling could or should not be made and that the Police did not act in any sort of misconduct. 

 

Upon discovery, Ken Shearer told Det. Graham that he suffered a back injury in 1987 and has used marijuana since. He also has a lengthy criminal record which they discussed. Ken Shearer also had difficulty remembering when he met Mr. Coldin. Ken Shearer had many inconsistencies with respect to dates and when things took place. He also didn’t know the names of the arsonist, just the phone number. Ken Shearer had just given him a drawing of where the cottage was. 

 

Conclusion:

Now that all of the facts surrounding the late disclosure have come to light, it is clear that any resulting complexity is not inherent in the nature of the evidence or the issues, but created by the failings of the Police and the Crown. 

 

Accordingly, had the Judge found that the late disclosure violated Mr. Coldin’s Charter rights, they would have found a stay to be an appropriate remedy. The Court ordered that application #1 (Quashing the Authorization) be granted, and the remaining applications be dismissed.

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6.) R v. SMITH, 2017 ONSC 4683

Judge: Justice Bielby 

 

Background:

On the 23rd day of September, 2014, the two Accused, who are both Applicants, Mr.Smith and Mr.Wynter, were charged with various firearm offences. The police exercised search warrants with respect to both their homes. The warrants were the result of a tip from a confidential informant (the Source) and the subsequent police investigation. A handgun was discovered in the garage of Mr. Wynter’s home and a cell phone in the home occupied by Mr. Smith. On that phone were discovered pictures allegedly showing Mr. Smith with the handgun in his pocket. The handgun, a 45 caliber pistol, was wrapped in a t-shirt and stored in a cupboard of some sort.

 

Issue:

Both Applicants are challenging the constitutional validity of the search warrants. They submit that the information set out in the Information to Obtain (“ITO”) was not sufficient to raise reasonable and probable grounds to the level needed to authorize the search warrants.

 

The applicant submits that their rights under sections of the charter were breached, leading to the evidence discovered during the searches ought to be excluded. 

 

Rule:

Mr. Smith also submits that the police searched his cell phone without first obtaining his informed consent. It is submitted therefore that the contents of the cell phone ought to be excluded from evidence further to section 24(2). 

 

The Crown, regarding both applications having been submitted, argue that the necessary grounds existed and that Mr. Smith provided informed consent to allow the search of his cell phone. Additionally, the Crown submits that if it is found that the Applicants’ charter 8 rights were violated, the evidence found during the search is expected to be excluded.

 

Legal/Analysis:

On September 23, 2014, the Source advised the police that Mr. Smith, was in the possession of a handgun. Details were provided to the police as to how the Source came into possession of this information. The Source explained that Mr. Smith works at Moxie’s (restaurant) and he regularly leaves the handgun with an associate who lives nearby when he is at work. The Source provided details of the handgun and told the police that Mr. Smith had a picture of himself and the handgun on his Blackberry Messenger. The police then started to investigate Mr. Smith. The ITO was prepared by affidavit by Detective Constable Aman Nasser of the Toronto Police Services.

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The ITO was redacted to protect the source and the Crown conceded that the redacted ITO would not give reasonable and probable grounds for a warrant. The Crown asked for a step 6 Garafoli inquiry. The unredacted ITO was presented along with a judicial summary.

 

A police investigation was commenced and Mr. Smith was an individual known to the police. He had a criminal record and was subject to an order prohibiting him from possessing firearms. 

 

In the new ITO, Officer Nasser opined that he believed that there is evidence located inside 19 Ridgefield and 7 Fairlawn, namely, a firearm. He sought warrants to search both residences as well as Mr. Smith’s Mercedes Benz.

On these facts, the Applicants submit that the evidence in the ITO was insufficient to obtain the warrants to search and, as a result, the searches were illegal. As well, the cell phone seized in the Smith residence was searched without the authority to do so, further violating Mr. Smith’s s. 8 rights.

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Mr. Smith states that he was asleep when the search was executed. When sitting in the kitchen, he was able to overhear on a police radio that something had been found in the search of the other house (7 Fairlawn). He was told he was being charged with gun offences and trafficking cocaine. After being taken into custody, at 4:40am, Officer Clarke came into the room and told Mr. Smith to get up. The officer had Mr. Smith’s Apple iPhone in his hand and Mr. Smith testified that he was told to unlock the phone and that the police were getting a warrant to search the contents of the phone. Mr. Smith unlocked the phone by using his thumb print. On cross-examination, Mr. Smith testified that the officer said, “open your phone, we are getting a warrant” and that he was looking for evidence. Officer Clarke testified that on the first occasion, Mr. Smith stated that the police could search his phone as there was no evidence.

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Conclusion: 

The Defence argument was agreed upon that the police should have conducted further surveillance to corroborate the information provided by the Source in regards to the “associate nearby” and to whether Mr. Wynter was the associate. They were only a few days into the investigation and if they continued surveillance on Mr. Smith they could have very easily observed his travels to and from work and with whom he came into contact. His lack of corroboration is really only significant in regards to the warrant issued to search the Wynter residence. 

 

In regards to Mr Smith’s rights, it is submitted that it had a significant impact in that there is a high expectation of privacy when it comes to cell phones, although not as high an expectation as that of private residences. While acknowledging there is a significant impact on Mr. Smith’s Charter rights, given the nature of the crimes and the subsequent warrant, the Crown submits that it is in the public’s interest to have the matter adjudicated on its merits.

 

It was found that the breach was serious and could have easily been avoided. It had a significant impact on the Accused and, finally, taking into account those two considerations and the circumstances, the admission of this evidence would negatively impact society's view of the administration of justice. 

The application of both Applicants to exclude the evidence obtained as a result of the searches of their homes are dismissed. The application of Mr. Smith to exclude from evidence the contents of his cellphone is granted.

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7.) R v. WHITTAKER, 2021 ONSC 2915

Dated: December 6, 2018.

 

Charges:

The accused in this matter is Dwight Whittaker.

Dwight Whittaker was found guilty by a jury of the following: 

• Robbery with a firearm;

• Pointing a firearm at another person;

• Possessing a loaded restricted firearm;

• Carrying a concealed weapon;

• Possession of a firearm with an altered or defaced serial number; and

• Possession of a firearm, unauthorized

 

Law/Analysis:

The Crown wanted to have Mr. Whittaker declared as a dangerous offender and requested a determinate sentence of 4-5 years, followed by a 10 year-long term supervision order, on the basis that his conviction for robbery with a firearm is a “serious personal injury offence.” 

 

Although Mr. Whittaker’s counsel agreed that the conviction is a serious personal injury offence, he presented the Crown has not proven beyond reasonable doubt that he meets the dangerous offender profile. 

 

Dangerous offender: offender has been convicted of a serious personal injury offence, and the offender constitutes a threat to life, safety or physical or mental wellbeing of other persons on the basis of establishing evidence. Things such as repetitive behaviour of the crime the offender has been convicted of, failure to restrain his/her behaviour, likelihood of causing death or injury to persons, etc. 

 

Background:

Offences committed by Mr. Whittaker occurred on July 22 and July 23 of 2016. On the 22nd, he pointed a firearm at Kunga Chonyi, along with another unnamed male and robbed him.

 

At approximately 10pm on the 22nd, Mr. Chonyi was waiting outside an LCBO on Queen street and Dunn avenue in Toronto. Mr. Whittaker approached Mr. Chonyi from behind and asked if he knew someone by the name of Dice. Mr. Chonyi didn’t know anyone by this name. Thinking he was referring to the game of dice, he went on to say he did not have any money. The conversation between Mr. Chonyi and Mr. Whittaker lasted about 15 minutes and Mr. Whittaker got aggressive. 

 

Mr. Chonyi and his friend walked away. His friend was chased on a bike by an unknown male. Mr. Whittaker caught up with Mr. Chonyi and accused him of lying to him about knowing Dice, stating he was going to shoot him. 

 

Mr. Chonyi said Mr. Whittaker put his hand inside a shoulder bag and pressed what Mr. Chonyi believed to be a gun against his hip. He then pressed the gun in the bag against his chest. He repeatedly said he would “blast him.” An unknown male approached, punched Mr. Chonyi in the face and stole his necklace and cardholder. 

 

Mr. Chonyi’s phone rang. Mr. Whittaker told him to put it on speaker, thinking it was Dice. He then proceeded to tell him to run away because “it was his block.” Mr. Chonyi went home and called the police. 

 

On July 23rd 2016, at approx. 10:30pm, members of Major Crime Unit set up surveillance and at 11pm, Mr. Whittaker was arrested at King and Dunn avenue. During the arrest, police found a 12-gauge pump action shotgun with the serial number removed in his bag. 

On December 7, 2018, a jury found Mr. Whittaker guilty of armed robbery, pointing a firearm, possession of a loaded restricted firearm, carrying a concealed weapon and possession of a firearm with an altered/defaced serial number. 

 

Background of Appellant:

From 2003 until his arrest for the offence in 2016, Mr. Whittaker had a total of 36 criminal convictions and/or findings of guilt. His adult records have offences of assault, robbery, trafficking, harassment, assault of peace officer, and fail to comply. Since being incarcerated in 2016, he has had 45 occurrences/misconducts. 

 

After following up with doctors due to his history in and out of foster care and a juvenile record, Dr. Pallandi and Dr. Waisman conclude that he has PTSD stemming from violence and abuse as a child, which resulted in Mr. Whittaker considering violence as an acceptable and effective method to have his needs met. 

 

Both experts agreed that Mr. Whittaker needs treatment but Dr. Waisman prefers the treatment to be offered in a federal penitentiary.

 

Mr. Whittaker has a long history of repetitive assaults of people in his foster homes. As mentioned above, the criteria for a dangerous offender is repetitive behaviour. It was stated that his response in each case is violence, resulting in an injury or threat of injury. 

 

Conclusion:

It was decided that Mr. Whittaker will be a long term offender and he was sentenced to a global sentence of 4 years of incarceration in addition to pre-trial custody, and subject to an LTSO order for 10 years.

 

8.)  R v. SACCOCCIA, 2017 ONSC 2844

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Judge:

Justice Thorburn

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Background: 

In 2013, Toronto police began an investigation into a violent rivalry among five street gangs that resulted in several deaths and the importation of illegal drugs and firearms. The investigation was known as Project Battery. As part of that investigation, police began surveillance on several members of the gang Asian Assassinz and discovered that Ken Mai was a mid-level drug dealer who had a unit at 1719 - 38 Joe Shuster Way. The police intercepted Mai’s telephone connection and discovered that Mai was the only occupant of the unit. He had the unit for the purpose of cooking cocaine as well as keeping the drugs there. He did not sleep there.

 

On May 16, 2014, Detective Constable Ryan Smith swore an Information to Obtain (“ITO”), a warrant to search the Applicant, Christopher Saccoccia’s condominium unit at 1420 -38 Joe Shuster Way and other premises. The Applicant’s unit was down the hall from Mr. Mai’s.

 

O’Donnell J. deemed there were insufficient grounds to issue a warrant to search the Applicant’s unit. So on May 23, 2014, DC Smith filed a second ITO that contained additional information.  Based on the information in both ITOs, a search warrant was granted to search the Applicant’s unit. Based on the warrant, they found illegal drugs and proceeds of crime. 

 

Rule:

The Applicant claims the ITO did not contain reasonable grounds to believe an offence had been or would be committed in their unit and the warrant should therefore not have been issued. As a result, he claims there were no reasonable grounds to search his condominium unit and the illegal drugs seized from that unit should be excluded from evidence at trial. He relies on sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

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Law/Analysis: 

DC Smith set out the following grounds for the warrant:

1. Mai was a known mid-level drug dealer;

2. Mai used his unit (which was in the same building and on the same floor as the Applicant), to store and traffic illegal drugs;

3. Between January 30 and March 14, 2014, the Applicant went to Mr. Mai’s unit five times. The only other people who went to this unit were Asian Assassinz gang members and one trusted customer of Mai’s. For this reason, the officer believed Mai trusted the Applicant and that he was both aware of and party to the drug offences taking place in Mai’s unit;

4. Between April 2 and May 20, 2014, Mr. Mai went to the Applicant’s unit nine times;

5. On one occasion, Mai was observed using a key to enter the Applicant’s unit;

6. On May 11, 2014 Mai was seen leaving the Applicant’s unit carrying beer bottles and returned to his unit which was on the same floor;

7. On one occasion, Mai entered the Applicant’s unit for only one minute but closed the door behind him, before entering the unit. The officer believed this was because they did not want to be seen;

8. Police observed that the Applicant regularly pushed and pulled on his door 5 or 6 times after he locked his door and before leaving.  DC Smith suggested this demonstrated that he was extraordinarily concerned with the security of his apartment; and

9. The Applicant had been investigated for criminal offences in the past but had no convictions.

 

Conclusion:

The Applicant claims the above evidence contained a misrepresentation, an inaccuracy, and the information in the ITO was not sufficient to enable the Judge to issue a search warrant to search the Applicant’s unit.

 

The Applicant further claims that the ITO falsely states that, “Mai has attended apartment 1420 on at least 5 occasions between the 2nd of April and the 20th of May; Christopher Saccoccia has also attended Ken Ying Mai’s drug stash location (unit 1719) on 9 separate occasions between the 30th of January and the 14th day of March 2014.” 

 

The Crown addressed that the Applicant attended 5 times, not 9. The parties had agreed that was a mistake and it wasn't an intentional attempt to mislead. Even though there was an error in the number of entries it wouldn’t change the search warrant. There were still interactions between the 2 units which shows an ongoing association.

 

Finally, the Applicant claims that without evidence of a drug transaction, the above evidence could not support the issuance of a search warrant to search the Applicant’s premises. This was disagreed with. The combined information of Mr. Mai’s criminal activity as well as the stash house to keep and sell illegal drugs, as well as the fact there was an ongoing relationship between Mr. Mai and the Applicant, and the other facts listed above, were sufficient enough for a search warrant. For those reasons, the application was dismissed. 

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