



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hewitt, 2018 ONCA 561

DATE: 20180619

DOCKET: C64079

Sharpe, Roberts and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Amanda Hewitt

Appellant

Robert J. Reynolds, for the appellant

Avene Derwa, for the respondent

Heard and released orally: June 18, 2018

On appeal from the sentence imposed on June 21, 2017 by
    Justice S. Hunter of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant appeals from her three-year
    sentence (less six months for pre-sentence custody) following her guilty plea
    for trafficking in firearms. She was granted leave to appeal sentence on
    February 16, 2018. She has now served 12 months of her sentence and is eligible
    for parole.

[2]

Pursuant to a joint submission, the appellant
    received the three-year mandatory minimum sentence under s. 99(2)(a) of the
Criminal
    Code
, less 6 months credit for pre-sentence custody.

[3]

The appellant submits that the mandatory minimum
    sentence under s. 99(2)(a) is contrary to s. 12 of the
Charter
because
    it is overly broad. It captures reasonable hypotheticals for which the 3-year
    mandatory minimum would be a grossly disproportionate sentence. The appellant
    seeks to file fresh evidence, without objection from the Crown, that her
    counsel was unaware of various lower court decisions in which the courts held
    that s. 99(2)(a) is contrary to s. 12 of the
Charter
, and outlining
    her personal circumstances.

[4]

The appellant submits that without the mandatory
    minimum, the appropriate sentence in her circumstances would be 24 months, less
    6 months for pre-sentence custody credit, plus a term of probation.

[5]

It is not necessary for us to consider the
    appellants constitutional argument because it would not affect the sentence:
R.
    v. Chambers
, 2013 ONCA 680. Even if the mandatory minimum did not apply,
    the three-year sentence imposed in the circumstances of this case was fit and
    appropriate.

[6]

The most significant mitigating factors here
    include the appellants guilty plea, her very troubled and personal history,
    and the fact that she was a first-time offender when she committed the index
    offence. These factors have to be balanced against the seriously aggravating features
    of this case. These include that the appellant transferred 9 non-restricted
    long guns, some without serial numbers, and at least one of which was stolen;
    she admitted that she asked for payment and admitted that she suspected the
    guns were stolen; and that, at the time of transfer, she was subject to a
    prohibition order against possessing any weapons.

[7]

The sentence imposed was within the range of
    sentences for similar offences and similar offenders. It follows that even if
    the mandatory minimum did not apply, the sentence was fit.

[8]

Accordingly, the appeal from sentence is
    dismissed.

Robert
    J. Sharpe J.A.

L.B.
    Roberts J.A.

G.T.
    Trotter J.A.


