



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. T.A.P., 2014 ONCA 141

DATE: 20140225

DOCKET: C56841

Weiler, Sharpe and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

T.A.P.

Respondent

Roger Shallow, for the appellant

Paul Calarco, for the respondent

Heard: February 4, 2014

On appeal from the sentence imposed on March 5, 2013 by
    Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2013 ONSC 797.

Weiler J.A.:

[1]

This is a Crown appeal as to sentence. The respondent, Ms. T.A.P., was
    charged with one count of possession of a loaded firearm contrary to s. 95(1)
    of the
Criminal Code,
R.S.C. 1985, c. C-46, and one count of
    possession of a firearm with the serial number removed, contrary to s. 108 of
    the
Code
. She pleaded guilty to these offences and received a sentence
    of 90 days, to be served intermittently, plus three years probation.

FACTS

[2]

Ms. T.A.P. is a 45 year-old first offender of Aboriginal heritage. She
    has alcohol and cocaine addictions and is the mother of several children. On
    the night of the events in question, she had a domestic dispute with her
    partner that resulted in police intervention and her partners arrest. At the
    time of his arrest, her partner told the police that Ms. T.A.P. had a gun
    beside the cushion of the chair in her bedroom.

[3]

The sentencing judge followed the decision of Molloy J. in
R. v.
    Smickle
, 2012 ONSC 602, 110 O.R. (3d) 25,

which held that the
    mandatory minimum three-year sentence for a conviction on an indictment under
    s. 95(2) was unconstitutional. After an extensive review of Ms. T.A.P.s
    unfortunate personal circumstances as well as the mitigating and aggravating
    factors for these offences, the sentencing judge concluded that a global
    sentence of up to two years was a fit sentence.

THE SENTENCING DECISION

[4]

In order to appreciate why the sentencing judge imposed the sentence she
    did despite her conclusion that a sentence of up to two years was appropriate,
    a brief overview of the path she took is necessary. The sentencing judge
    considered the defence submission that the sentence should be served in the
    community. She observed that s. 742.1 provides that a person who is convicted
    of a serious personal injury offence as defined in s. 752 is not eligible for a
    conditional sentence. She then concluded that on the facts of this case, Ms.
    T.A.P. was convicted of a serious personal injury offence. Specifically, on the
    night of her arrest, Ms. T.A.P. was intoxicated and had the gun in her bedroom
    on a chair within reach of her children and others in the house. They were
    exposed to danger of harm. These facts were sufficient to bring this offence
    within the scope of a serious personal injury offence. In addition, possession
    of a loaded firearm is subject to a maximum of ten years imprisonment and for
    this reason as well a conditional sentence could not be imposed on this count.

[5]

The sentencing judge gave reasons why, had she been of the opinion it
    was open to her to do so, a conditional sentence would have been appropriate.
    They include the following. The safety of the community would not be
    endangered. There was no evidence that Ms. T.A.P. actively sought the gun or
    that she had any intention of using it. She was a passive recipient. The
    sentencing judge also accepted Ms. T.A.P.s evidence that she was afraid of
    both her former partner and drug dealers in her neighborhood. While Ms.
    T.A.P.s reasons for having the gun were unwise and imprudent, she was truthful
    as to why she possessed the gun
[1]
and there was very little risk of her re-offending. The goal of specific
    deterrence was met by Ms. T.A.P.s brief pre-trial custody of 11 days, lengthy
    period of bail of almost three years and the impact of the charges on her.
    Specifically, she lost custody of her children from the time she was charged
    until sometime in 2011. Furthermore, Ms. T.A.P. had taken significant steps
    towards rehabilitation for her alcohol and cocaine abuse. She was actively
    engaged with Alcoholics Anonymous and Cocaine Anonymous. She was attending
    weekly bible study. She was actively and positively involved with her
    childrens therapy and her participation had been productive and beneficial to
    them. The report of the Hincks-Dellcrest Centre treating psychiatrist, Dr.
    Stein, indicated that the children had come to rely on their mother for their
    sense of security and well-being and that incarceration at this point would be
    devastating to Ms. T.A.P.s two young girls. The sentencing judge therefore
    concluded that a conditional sentence would be in accordance with the
    principles of sentencing.

THE POSITIONS OF THE PARTIES
    & ANALYSIS

[6]

On appeal, the Crown initially took the position that the sentencing
    judge erred in following the 2012
Smickle
decision with respect to the
    unconstitutionality of the mandatory minimum sentence for the s. 95 offence.
    After the Crown filed its factum appealing Ms. T.A.P.s sentence, this court
    rendered its decision in
R. v. Smickle
,
    2013 ONCA 678, agreeing that the three-year mandatory minimum sentence was
    unconstitutional. That part of the Crowns appeal is therefore moot.


[7]

The Crown maintains however that the global sentence imposed is
    manifestly unfit and seeks a global sentence of two years less a day. It
    submits that, prior to the amendment to the
Criminal Code
introducing
    a mandatory minimum three-year sentence for cases in which the offence of
    possession of a loaded handgun was prosecuted by way of indictment,

the
    range of sentences was between two years less a day and three years. Young or
    first-time offenders who had good rehabilitation prospects and who pleaded
    guilty were typically sentenced at the low end of this range. The Crown also directs
    us to this courts decision in
R. v. Smickle,
2014 ONCA 49, at para.
    19, where, in referring to the twenty-seven year-old first-time offender who
    was about to take his picture with a prohibited loaded handgun when arrested,
    the court stated, [o]ffences like that committed by the respondent, while
    somewhat less serious than the typical s. 95 offence, will demand the
    imposition of sentences at or very near the maximum reformatory sentence, even
    for first offenders.

[8]

As indicated, Ms. T.A.P. is a first-time offender who pleaded guilty. At
    the time of her sentencing on March 5, 2013, the evidence indicated that she
    had taken significant steps toward rehabilitation during the lengthy period
    when she was on bail after being charged on March 28, 2010.

[9]

Almost a further year has passed from the time of sentence to the
    hearing of this appeal. Ms. T.A.P. has served the custodial portion of her
    sentence and 11 months of her probation. The fresh evidence filed on appeal
    with the consent of the Crown supports the conclusion that Ms. T.A.P. continues
    her rehabilitation. A letter from the Childrens Aid Society states that she
    has taken great strides in addressing her addiction issues along with her
    parenting. The letter from Dr. Stein, states that [Ms. T.A.P.] is clearly a
    caring and loving mother who is trying hard to put her childrens needs first
    and re-iterates that if Ms. T.A.P. is put in jail, the childrens mental health
    will worsen and the impact will be nothing short of devastating on them. The
    childrens school is also supportive of Ms. T.A.P.

[10]

Having
    regard to the particular circumstances of this case, the Crown concedes that it
    would not be in the interests of justice for Ms. T.A.P. to go to jail. It is in
    the interests of the community if Ms. T.A.P. is permitted to continue along the
    rehabilitative path that she has followed since the time that she was charged.
    Rather, the Crown submits that, instead of the global sentence imposed for both
    counts, a sentence should be imposed on the individual counts. The 90-day intermittent
    sentence and probation would apply to the s. 95(1) count. In addition, the
    Crown seeks a further consecutive sentence of 21 months less a day on the s.
    108 count, to be served in the community. The maximum penalty for possession of
    a firearm knowing that the serial number has been defaced or removed, when
    prosecuted by way of indictment, is a term of imprisonment not exceeding five
    years, and the offence does not qualify as a serious personal injury offence.
    Nor does the offence carry a minimum term of imprisonment. Therefore, a
    conditional sentence was available under s. 742.1 in relation to the s. 108
    count. The Crowns proposal would make the global sentence two years less a
    day, plus probation for three years.

[11]

Counsel
    for Ms. T.A.P. agreed in his factum and in oral argument before us that the
    sentencing judge erroneously ruled that a conditional sentence was not open to
    her and that, but for her error, she would have imposed a conditional sentence.

[12]

There
    appears to be no issue that, while the sentencing judges conclusion that a
    conditional sentence was statutorily unavailable is correct with respect to the
    count under s. 95(1), it is not correct with respect to the count under s. 108.
     The attention of counsel was focused on s. 95(1) and it does not appear that
    the sentencing judge had the assistance from counsel respecting s. 108 that
    this court has had.

[13]

The
    decision of Moldaver J.A. (as he then was) in
R. v. Ploumis
(2000),
    150 C.C.C. (3d) 424, (Ont. C.A.), leave to appeal refused, [2001] S.C.C.A. No.
    69, at paras. 23-26, holds that it can be appropriate to add a conditional
    sentence to a custodial sentence of jail if the total sentences do not exceed
    two years less a day.

[14]

Furthermore,
    the
Criminal Code
makes clear that, if it is possible and appropriate,
    sentencing judges ought to impose a sentence on each count as opposed to simply
    imposing one global sentence. Section 725(1)(a) of the
Criminal Code
states
    that a court shall consider, if it is possible and appropriate to do so, any
    other offences of which the offender was found guilty by the same court, and
    shall determine the sentence to be imposed for each of those offences.

[15]

When
    a sentencing judge does nevertheless impose one global sentence for two or more
    counts, s. 728 of the
Criminal Code
applies. Section 728 states:

Where one sentence is passed on a verdict of guilty
    on two or more counts of an indictment, the sentence is good if any of the
    counts would have justified the sentence.

[16]

Considered
    together, these two sections mean that sentence should be passed on each count
    on which an accused has been found guilty but a single global sentence on one
    or more counts will not be invalidated provided the sentence may be justified
    by any of the counts.

[2]


[17]

In
    this case, however, the sentencing judge gave reasons why a conditional
    sentence of two years less a day would have been appropriate. The sentence she
    imposed was due to the limited and erroneous view she took of her options as to
    sentence. Having regard to the reasons of the sentencing judge, the submissions
    of the Crown, the circumstances of this case and the fresh evidence filed by
    defence counsel, I would therefore allow the appeal.

[18]

I
    would set aside the global sentence imposed by the sentencing judge and in its
    place substitute the following: on count 1 for the offence under s. 95(1), Ms.
    T.A.P. is sentenced to 90 days imprisonment to be served intermittently, plus
    3 years probation; on count 2 for the offence under s. 108, Ms. T.A.P. is
    sentenced to a conditional sentence of 21 months less a day, to be served
    consecutive to count 1. As to the terms of the conditional sentence, I would
    adopt the terms set forth in the Appendix to Ms. T.A.P.s counsels factum. The
    remaining period of probation is frozen until the conditional sentence has been
    served. The result is a global sentence of two years less a day, plus three
    years probation.

Released: February 25, 2014

(K.M.W.)                                                                         
    K.M. Weiler J.A.

I
    agree Robert J. Sharpe J.A.

I agree R.A. Blair J.A.





[1]

On appeal, the
    Crown takes issue with the sentencing judges reasons with respect to Ms.
    T.A.P.s evidence as to why she possessed the gun. The Crown submits that she
    was storing the gun for a local neighborhood drug dealer. If the Crown relies
    on a fact as aggravating on sentencing, and the fact is not admitted, the Crown
    must prove that fact beyond a reasonable doubt. In this case, the record does
    not support the finding urged upon us by the Crown, and the Crown has failed to
    prove this aggravating fact beyond a reasonable doubt.



[2]
Although the sentence may not be invalid, other courts have strongly
    discouraged the practice of global sentencing because of the practical problems
    a global sentence can occasion. See e.g.
R. v. Tasew
, 2011 ABCA 241, 282
    C.C.C.(3d) 260, at paras. 72-80;
R. v. Taylor
, 2010 MBCA 103, 263 C.C.C.
    (3d) 307, at para. 10; and
R. v. Thorpe
(1976), 32 C.C.C. (2d) 46 (Man.
    C.A.) at p. 49.


