



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. McCue, 2012 ONCA 773

DATE: 20121114

DOCKET: C55198

Doherty, Epstein JJ.A. and Cavarzan J.
(ad
hoc)

BETWEEN

Her Majesty the Queen

Appellant

and

Daniel Lee-David McCue

Respondent





Roger Shallow, for the appellant

Sarah Dover, for the respondent



Heard:  October 23, 2012

On appeal from the sentence imposed on February 22, 2012
by Justice Martha B. Zivolak of the Ontario Court of Justice.



By the Court:



[1]

After a trial before a judge sitting without a jury, the respondent was
convicted of several offences:

·

Possession of a loaded prohibited firearm (count 6);

·

Possession of a firearm while under an order made pursuant to a
robbery conviction prohibiting him from possessing firearms (count 5);

·

Possession of a firearm while under an order made pursuant to a
mischief conviction prohibiting him from possessing firearms (count 7);

·

Possessing a handgun without a licence (count 4);

·

Carrying a firearm in a careless manner (count 1); and

·

Mischief to property under $5,000 (count 2).

[2]

The weapons charges all involved the same handgun and the same event. 
The mischief charge arose out of a separate event that occurred earlier on the
same day as the weapons offences.

[3]

The trial judge imposed a sentence of two years less two days on the
charge of possessing a loaded prohibited weapon.  She gave the respondent
credit on a 1:1 basis for 367 days spent in custody prior to sentencing,
resulting in an effective sentence of three years on the charge of possessing a
loaded handgun.

[4]

The trial judge stayed one of the convictions for possession of a
firearm while under an order prohibiting the possession of firearms pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.  She imposed one-year concurrent
sentences on all of the other weapons charges.  She imposed a 90-day concurrent
sentence on the mischief charge.  In the end result, the respondent received a
total sentence of two years less two days, having been given credit for 367
days of pre-sentence custody.  This sentence placed the respondent in the
reformatory.

[5]

The Crown appeals.  Counsel makes three arguments.  He argues that the
trial judge erred in adjourning the sentencing proceedings for over two months
to allow the respondent to accumulate sufficient dead time so that the
sentence the trial judge intended to impose would result in incarceration in a
provincial institution rather than a penitentiary.  Counsel also submits that
the trial judge significantly misapprehended the seriousness of the gun-related
offences and failed to give any appreciable weight to the respondents lengthy
and serious criminal record.  Finally, counsel submits that the trial judge
erred in principle in imposing concurrent sentences on the charge of possession
of a weapon while under court order not to possess weapons and on the mischief
charge.  Counsel contends that these offences required consecutive sentences.

the adjournment

[6]

After hearing counsels submissions on sentencing, the trial judge
decided that sentences totalling three years were appropriate.  She also concluded
that the respondent should receive 1:1 credit for his pre-sentence custody.  Had
the trial judge sentenced the respondent at that time, he would have gone to
the penitentiary.

[7]

The trial judge determined, however, based mainly on a letter given to her
by the respondent, that his rehabilitative prospects would be much better if he
went to the reformatory and not the penitentiary.  The respondent could only go
to the reformatory if he accumulated sufficient time in pre-sentencing custody
to reduce the sentence to be imposed to less than two years.  To achieve this
result, the trial judge adjourned the sentencing to allow the respondent to
accumulate a further 77 days of pre-sentence custody.

[8]

Crown counsel submits that the adjournment directed by the trial judge conflicted
with s. 720(1) of the
Criminal Code
:

A court shall, as soon as practicable after an offender has
been found guilty, conduct proceedings to determine the appropriate sentence to
be imposed.

[9]

Without commenting on the merits of this submission as a matter of
statutory interpretation, we are satisfied that the adjournment was inappropriate
in the circumstances of this case for two reasons.  First, the adjournment was premised
on the trial judges determination that a sentence totalling three years was
appropriate.  As we will explain below, the seriousness of the offences and the
respondents 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.

[10]

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.

[11]

In
this case, the trial judge relied entirely on the respondents statements in
his letter to the judge.  In that letter, the respondent purported to identify
the institutions to which he would be sent depending on whether he was placed
in the reformatory or the penitentiary system.  The respondent also purported
to describe the various programs available to him and to explain his strong
preference for the programs he would receive at a particular provincial institution. 
The trial judge erred in simply taking this information at face value.  There
was no evidence to support most of what the respondent said in his letter. 
Clearly, he had a vested interest in avoiding the penitentiary.  The trial
judge should have required evidence on those issues and not simply relied on
the respondents statements about where he would be sent and the programs that
would be available to him in that institution even if he received a sentence of
less than two years.

the proper characterization of the gun offences

[12]

It
is necessary to briefly outline the facts underlying these charges.  The police
were looking for the respondent in the late evening of February 20, 2011.  They
went to the residence where they understood he lived.  The police saw the
respondent leave the residence and enter a taxi.  They followed the taxi for a
few blocks, at which point the respondent got out of the vehicle and fled the
scene, running through backyards.

[13]

The
police chased the respondent through several backyards and eventually
apprehended him.  A police search of the route followed by the respondent after
he left the taxi led to the discovery of a loaded nine millimetre
semi-automatic handgun in the backyard of one of the homes.  The respondent had
thrown the gun away as he fled from the police.

[14]

In
describing the relevant events for the purposes of sentencing, the trial judge
said:

I do see this as a
minimal fact situation
if there is such a thing, when it comes to possession of a restricted and
loaded firearm,
on the following basis.  There was no attempt to use the
firearm, a restricted weapon, and in fact it would appear that the only attempt
by you was to get rid of it.  So theres no suggestion that it was in your
possession for you to actively use, and you didnt use it, and in fact you
disposed of it at the first opportunity you had, no doubt to avoid its
detection.  [Emphasis added.]

[15]

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
someones 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?

[16]

The
circumstances of the offence called for a significant sentence.  For reasons we
need not detail, the parties at trial proceeded on the basis that the
three-year minimum was inapplicable.  They should not have done so, but in our
view that error did not have any effect on the sentence imposed.  The
circumstances of the offence, particularly having regard to the offenders
serious criminal history, including prior convictions for robbery, called for a
sentence well in excess of three years.  The trial judges mischaracterization
of the circumstances of the offence as minimal led her to impose a sentence
that was outside of the appropriate range for this offender.

the imposition of concurrent
sentences

[17]

As
described above, the trial judge imposed concurrent sentences on all of the
charges.  The Crown submits that the sentence on the mischief charge and the
sentence on the charge of possession of a firearm while under a court order not
to possess firearms should have been consecutive to the other weapons charges
and consecutive to each other.

[18]

The
facts giving rise to the mischief charge occurred earlier on the same day as
the events that gave rise to the weapons charges.  The respondent went to the
home of an individual and insisted that he be allowed to see his ex-girlfriend,
who was apparently staying at the home.  When that person would not let the
respondent into the home, he became very angry and threw a bicycle through the
window of the home.

[19]

The
events underlying the mischief charge were no doubt frightening to the persons
affected by them, particularly in light of the respondents prior relationship
with one of the occupants of the home and his serious and well-established propensity
for acts of violence.  The respondent also had prior convictions for mischief. 
Incarceration on this charge was fully warranted.

[20]

The
mischief conviction warranted a consecutive sentence.  That offence was
entirely distinct from the weapons offences.  It should have been treated as a
separate and distinct matter for the purposes of sentencing.  A concurrent sentence
denigrates the significance of the mischief charge and suggests that it is not
in and of itself worthy of punishment.  Of course, in fixing the appropriate length
of a consecutive sentence, a trial judge must have regard to the totality of
the sentences to be imposed.  Totality concerns can, however, be adequately addressed
by adjusting the length of the various consecutive sentences, if necessary.

[21]

The
Crown also contends that the sentence on the charge of possession of a weapon
while prohibited by a court order from possessing weapons should have been
consecutive to the other sentences.  Counsel submits that unless the sentence
is made consecutive, disregard of the court order goes unpunished.

[22]

We
think the trial judge had two options in considering the impact of the breach
of the prohibition order.  She could have taken the breach into account as a significant
aggravating factor when fixing the appropriate sentence on the possession of a loaded
firearm charge, and then imposed a concurrent sentence on the charge alleging a
breach of the prohibition order.  Alternatively, the trial judge could have ignored
the prohibition order in fixing the appropriate sentence on the possession of
the weapon charge and then imposed a consecutive sentence on the charge alleging
the breach of the prohibition order.  Clearly, the trial judge could not do both. 
Unfortunately, she did neither.

conclusion

[23]

Having
regard to the circumstances of the offences and the offender, and taking into
account the totality of the sentences to be imposed, we would allow the appeal
and vary the sentences as follows:

·

Possession of a loaded prohibited firearm (count 6)  4 years;

·

Possession of a firearm while under an order made pursuant to a
robbery conviction prohibiting him from possessing firearms (count 5)  6
months consecutive to the sentence imposed on count 6;

·

Possession of a handgun without a licence (count 4)  1 year
concurrent to the sentence imposed on count 6;

·

Carrying a firearm in a careless manner (count 1)  1 year
concurrent to the sentence imposed on count 6;

·

Mischief to property under $5,000 (count 2)  90 days consecutive
to the sentences imposed on counts 6 and 5.

[24]

In total, the respondents sentence is varied to 4 years and 9 months. 
He is, of course, entitled to credit for 367 days pre-sentence custody on a 1:1
basis, leaving a sentence to be served as of the date of sentencing by the
trial judge of just under 3 years and 9 months.





RELEASED:  DD  NOV 14
2012

Doherty
J.A.

G.J. Epstein J.A.

Justice
Cavarzan J. (per Doherty J.A.)


