



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Chambers, 2013 ONCA 680

DATE: 20131112

DOCKET: C55977

Doherty, Goudge, Cronk, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Chambers

Appellant

James Lockyer and Diana Lumba, for the appellant

Riun Shandler and Andreea Baiasu, for the respondent

Moiz Rahman, Nancy Dennison and Andrea Bourke, for the
    intervener the Attorney General of Canada

Heard: February 2122, 2013

On appeal from the sentence imposed by Justice Jane E.
    Kelly of the Superior Court of Justice on February 2, 2012, with reasons
    reported at 2012 ONSC 817.

Cronk J.A.:

I.        Introduction

[1]

On December 9, 2011, at the conclusion of a trial before Kelly J. of the
    Superior Court of Justice, the appellant was convicted of eight firearm-related
    offences: possession of a restricted firearm with ammunition (Count 1); possession
    of a firearm knowing its possession was unauthorized (Count 2); unauthorized
    possession of a firearm (Count 3); possession of a weapon obtained by the
    commission of an offence (Count 4); possession of property obtained by crime
    (Count 5); two counts of breach of a firearms prohibition order (Counts 6 and 7);
    and failure to comply with a recognizance (Count 8).

[2]

On February 2, 2012, the appellant was sentenced to a total of eight
    years imprisonment, apportioned as follows:



Count 1



six years imprisonment;



Counts 2, 3, and 4



one year imprisonment on each count, concurrent to Count 1;



Count 5



six months imprisonment, concurrent to Count 1;



Count 6



one year imprisonment, consecutive to Count 1;



Count 7



one year imprisonment, consecutive to Count 6; and



Count 8



six months imprisonment, concurrent to Counts 6 and 7.



[3]

The sentencing judge also gave the appellant credit, at the rate of one
    to one and one-half days, for 684 days spent in pre-sentence custody (1,026
    days).  In the result, the appellants effective sentence at trial was a term
    of five years and two months imprisonment.

[4]

The appellant seeks leave to appeal and, if leave be granted, appeals from
    his sentence.  He argues that: (1) the sentencing judge erred by ordering that
    the sentences imposed for Counts 6 and 7 (the breaches of two firearms
    prohibition orders) be served consecutively to each other; (2) the global sentence
    imposed offends the parity principle set out in s. 718.2(b) of the
Criminal
    Code
(the 
Code
); and (3) the five-year mandatory minimum
    sentence for repeat firearms offenders established by s. 95(2)(a)(ii) of
    the
Code
is unconstitutional because it violates ss. 12 and 7 of the
Canadian
    Charter of Rights and Freedoms
(the 
Charter
).

[5]

For the reasons that follow, I would grant leave to appeal sentence and
    dismiss the sentence appeal.

II.       Facts

[6]

The pertinent background facts are not in dispute.

[7]

On March 23, 2010, members of the Toronto Police Service conducted
    surveillance in a Toronto residential neighbourhood known to them as a high
    crime area involving drug activity, gun use, and the presence of competing
    gangs.  A public junior school is located in the area.  The police had received
    information that the shooting of an unknown male would take place in the area
    later that day, as some form of gang retaliation.

[8]

A surveillance officer, Constable Loucks, saw the appellant leaning against
    an alcove at the entrance to a local bar.  He observed the appellant holding
    what the officer thought might be a gun in the appellants jacket pocket.  The
    appellant appeared to acknowledge other persons in the area and, in turn,
    various gang members in the vicinity appeared to acknowledge the appellants presence. 
    One of the gang members also appeared to be holding a concealed firearm.

[9]

A short time later, the appellant left the entrance to the bar and
    started to walk away.  At about the same time, a marked police cruiser
    approached in the appellants direction.  When a uniformed police officer got
    out of the cruiser, the appellant began to run towards a nearby residence.  Uniformed
    police officers from the cruiser  Constables Malhi and Morris  followed him
    on foot.

[10]

As
    the appellant ran into the driveway of the residence, he tripped over a small
    fence on the property.  When he tripped, Constable Malhi saw that the appellant
    was carrying a handgun.  The officer began to chase the appellant.  He took out
    his own firearm, yelled a warning that the appellant had a gun, and shouted to
    the appellant to get down and to stop.  The appellant dropped the handgun but
    continued to run towards the backyard of the residence.  Constable Malhi
    reholstered his firearm and continued his pursuit of the appellant.

[11]

As
    the appellant reached the back of the yard, he encountered a four or five-foot
    mesh fence.  When the appellant attempted to jump over the fence, Constable Malhi
    caught up with him, grabbed him from behind, and forced him to the ground.  A
    struggle ensued between the two men, during which Constable Malhi elbowed,
    kneed, and possibly kicked the appellant.  Constable Morris arrived at the
    fence within minutes.  The appellant continued to struggle but the two officers
    subdued him, and handcuffed and arrested him.

[12]

A
    third officer retrieved the handgun discarded by the appellant.  The gun, a .38
    caliber Smith and Wesson revolver, contained three rounds of live ammunition. 
    The chamber contained a bullet and the gun was ready for firing.

[13]

The
    appellant was taken to the hospital for treatment of injuries occasioned during
    his scuffle with the officers.  He sustained multiple injuries to his face,
    including to his left eye, cheek, and jaw.  His lips, nose, and forehead were
    also injured.  He received stitches for his wounds and Percocet was
    prescribed.  He was then taken to the police station for processing.  Once
    incarcerated, the appellant was treated for two days in the health care unit of
    the Metro West Detention Centre.

[14]

At
    trial, the appellant sought a stay of all charges against him on the ground that
    the police used excessive force during his arrest, in breach of his ss. 7 and
    12
Charter
rights.  The appellant agreed that if his stay application
    failed, convictions should follow on all charges.  The trial judge dismissed
    the stay application and convictions were entered on the eight charges arising
    from the appellants possession of the handgun:
R. v. Chambers
, 2011
    ONSC 7197.  The appellant does not challenge this
Charter
ruling on
    this appeal.

III.      Sentencing Judges Decision

[15]

The
    appellant was 25 years old at the time of sentencing.  This was his third
    conviction for firearms offences.  In 2004, the appellant was convicted of
    possession of a loaded prohibited or restricted firearm.  He received a
    suspended sentence (after credit for seven months and 15 days pre-sentence
    custody), two years probation and a mandatory firearms prohibition order under
    s. 109 of the
Code
.  Four years later, in 2008, the appellant was
    convicted of possession of an unauthorized firearm and possession of a firearm
    contrary to the firearms prohibition order imposed in 2004.  He was sentenced
    to one day in custody (after credit for seven months pre-sentence custody) and
    three years probation.  A firearms prohibition order was again imposed under
    s. 109 of the
Code
.

[16]

Thus,
    at the time of the present offences, the appellant was subject to two firearms
    prohibition orders.  He was also on probation and judicial interim release.  His
    bail terms precluded the possession of any firearms or other weapons.

[17]

On
    sentencing, the Crown sought a period of incarceration of 13.5 years.  Defence
    counsel at trial (not counsel on appeal) urged a total sentence of seven years
    imprisonment.  The sentencing judge and both counsel proceeded on the basis
    that the mandatory minimum sentence of five years imprisonment for repeat
    firearms offenders provided for under s. 95(2)(a)(ii) of the
Code
applied in the circumstances.  Before the sentencing judge, the defence did not
    challenge the constitutionality of this five-year mandatory minimum sentence provision.

[18]

The
    sentencing judge imposed a total sentence of eight years imprisonment, less
    credit of two years and ten months for time served by the appellant in
    pre-sentence custody.   This resulted in a sentence of five years and two
    months imprisonment, apportioned in the manner described above.

IV.     Issues

[19]

There
    are three issues:

(1)

Did the
    sentencing judge err by directing that the sentences on Counts 6 and

7

(the
    breaches

of two firearms

prohibition orders) be served
    consecutively to each other?

(2)

Does the
    appellants global sentence of eight years imprisonment offend the principle
    of parity of sentences set out in s. 718.2(b) of the
Code
?

(3)

Does the
    five-year mandatory minimum sentence for repeat firearms offenders established
    by s. 95(2)(a)(ii) of the
Code
violate ss. 7 or 12 of the
Charter
?

V.      Analysis

(1)

The Consecutive Sentences Issue

[20]

The sentencing judge imposed a one-year jail term for each of the
    appellants breaches of his 2004 and 2008 firearms prohibition orders.  She directed
    that these sentences should be served consecutively to the six-year term of
    imprisonment imposed on Count 1 (possession of a restricted firearm with
    ammunition) and to each other.  In so doing, the sentencing judge declined to
    treat each breach merely as an aggravating factor that would operate to
    lengthen the appropriate sentence imposed on the main offence.  She held, at
    para. 37:

The sentences for breach of the prohibition order[s] must be
    consecutive in order to reflect Mr. Chambers commission of a separate and
    distinct offence  breaching a court order that specifically prohibited him
    from possessing firearms.
I do not accept that the sentences for
    possessing the firearm in breach of two prohibition orders should be
    concurrent.  They were two separate orders given on two separate occasions and
    give rise to two separate offences
.  Accordingly, I am sentencing Mr.
    Chambers to one year for each of those offences to be served consecutively.
    [Emphasis added.]

[21]

The
    appellant contends that Counts 6 and 7 involve the same offence and the same legally
    protected interests.  As a result, he submits, the sentences imposed on these
    counts should be served concurrently to each other.  He does not dispute the
    sentencing judges ruling that the sentences on Counts 6 and 7 should be served
    consecutively to the underlying firearms possession offence (Count 1).

[22]

I
    see no basis for interference with the sentencing judges ruling on this
    issue.  As the appellant acknowledges, Counts 6 and 7 arose from breaches of
    two separate firearms prohibition orders.  The orders were imposed at different
    times, separated by a period of approximately four years, and in respect of
    different firearms offences.  As the sentencing judge observed, each
    prohibition order breach was a separate and distinct offence.  That the social
    purpose of the prohibition orders was the same  to prevent the appellants
    possession of firearms  does not detract from the fact that the breaches
    constituted separate offences, referable to prohibition orders imposed at
    different points in time, in different circumstances.

[23]

This
    court has recently upheld sentences of six months imprisonment for firearms
    prohibition offences, to be served consecutively to a firearm possession
    offence and to each other:
R. v. Johnson
, 2013 ONCA 177, 303 O.A.C.
    111.

[24]

The
    sentencing judge made no error in principle in sentencing the appellant on
    Counts 6 and 7.  The decision whether the sentences imposed on those charges
    should be served consecutively or concurrently was hers to make.

[25]

The
    sentencing judges discretionary decision to direct that the sentences imposed
    on Counts 6 and 7 be served consecutively, rather than concurrently, attracts
    deference from this court.  As a majority of the Supreme Court stated in
R.
    v. McDonnell
, [1997] 1 S.C.R. 948, at para. 46:

In both setting duration and the type of sentence, the
    sentencing judge exercises his or her discretion based on his or her first-hand
    knowledge of the case; it is not for an appellate court to intervene absent an
    error in principle, unless the sentencing judge ignored factors or imposed a
    sentence which, considered in its entirety, is demonstrably unfit.

[26]

The
    appellant does not suggest that the sentencing judge ignored any relevant
    factors when determining that the sentences in question should be served
    consecutively.  Nor does he argue that the sentences on Counts 6 and 7, by
    themselves, produced an overall sentence that is demonstrably unfit.

[27]

I
    note that the sentencing judge also ruled that the six-month term of
    imprisonment imposed for the appellants breach of his bail conditions (Count
    8) was to be served concurrently, rather than consecutively, to the sentences
    imposed on Counts 6 and 7.  The appellants bail order constituted a third
    court order prohibiting his possession of guns.  The sentence imposed on Count
    8 is consistent with the totality principle, which seeks to ensure that the
    total sentence imposed does not exceed the overall culpability of the offender:
R. v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 126.

[28]

This
    ground of appeal therefore fails.

(2)

The Parity of Sentences Issue

[29]

Section
    718.2(b) of the
Code
provides:

718.2  A court that imposes a sentence shall also take into
    consideration the following principles:



(b)
a sentence should be similar to sentences imposed
    on similar offenders for similar offences committed in similar circumstances.

[30]

This
    court has held that the principle of parity of sentences enunciated in s.
    718.2(b) is intended to preserve fairness by avoiding disparate sentences
    where similar facts relating to the offence and offender would suggest like
    sentences (citation omitted):
R. v. Rawn
, 2012 ONCA 487, 294 O.A.C.
    261, at para. 18; and
R. v. Mann
, 2010 ONCA 342, 261 O.A.C. 379, at
    para. 16.

[31]

However,
    while parity is a guiding principle of sentencing, it is not to be applied in
    an absolute fashion; rather, it is only one of several principles that must be
    taken into account by a sentencing judge in crafting a fit sentence. 
    Consequently, the parity principle is not dispositive of the sentencing result
    in all cases involving similar offenders convicted of similar crimes:
Mann
,
at para. 17.

[32]

In
    this case, the appellant argues that the parity principle justifies a reduction
    in the length of his overall sentence.  I disagree.

[33]

As
    the courts have frequently observed, sentencing is a highly individualized and
    fact-specific exercise.  As a result, sentences imposed for offences of the
    same type will not always be identical.  In
R. v. L.M.
, 2008 SCC 31,
    [2008] 2 S.C.R. 163, the Supreme Court explained, at para. 36: The principle
    of parity does not preclude disparity
where warranted by the circumstances
,
    because of the principle of proportionality (emphasis in original).  Further,
    in
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 90, the Supreme
    Court cautioned that an appellate court should intervene to minimize the
    disparity of sentences only where the sentence imposed by the trial judge is in
    substantial and marked departure from the sentences customarily imposed for
    similar offenders committing similar crimes.

[34]

In
    my view, the appellant has not met this high threshold for appellate
    interference with the sentence imposed by the sentencing judge.  The appellant has
    been unable to point to any body of case law supporting the proposition that
    the total length of his sentence materially deviates from the sentences imposed
    on similar offenders for similar offences.  This court has upheld a sentence of
    eight years imprisonment for a relatively young offender (21 years old) with only
    one prior weapons conviction committed in similar circumstances:
R. v. Dene
,
    2010 ONCA 796, [2010] O.J. No. 5012.

[35]

The
    appellant relies on the decision of this court in
R. v. Brown
, 2010
    ONCA 745, 277 O.A.C. 233, to support his invocation of the parity principle. 
    In my view,
Brown
does not assist the appellant.  To the contrary,
Brown
supports the fitness of the appellants overall sentence.

[36]

Brown
    pleaded guilty to possession of a loaded restricted firearm and breach of a
    lifetime firearms prohibition order.  He had a lengthy criminal record,
    consisting of 34 prior convictions, and was subject to a deportation order.  He
    was also a repeat firearms offender.  Like the appellant, Brown was bound at
    the time of his arrest by two firearms prohibition orders arising from two
    prior sets of convictions for firearms offences.

[37]

In
Brown
, the sentencing judge determined that a global sentence of about
    eight years imprisonment would have been appropriate if Browns case had gone
    to trial.  However, given Browns guilty plea, his co-operation with the police
    on arrest and the absence of any indication that he was involved in other
    criminal activity when he was arrested, the sentencing judge concluded that a
    six-year global sentence was appropriate.  He gave Brown six months credit on
    a two-for-one basis for pre-sentence custody.  This resulted in an effective
    sentence of five years and six months imprisonment.

[38]

On
    appeal, this court held, at paras. 4 and 5, that the overall sentence imposed
    on Brown was demonstrably unfit, outside the appropriate range, and inadequate
    to reflect the seriousness of [Browns] offences and [his] incorrigibility as
    an offender.  The court set aside the global sentence imposed at trial and
    substituted a sentence of seven years and six months imprisonment for the offence
    of possession of a loaded restricted firearm, less six months credit for
    Browns pre-sentence custody, for a total of seven years imprisonment.  It
    also imposed a jail term of one year, to be served consecutively, for Browns
    breach of his firearms prohibition order.  In the result, Brown was sentenced
    to eight years imprisonment,
after
credit for pre-sentence custody.

[39]

The
    appellants six-year sentence of imprisonment for possession of a restricted
    firearm with ammunition (Count 1) was less than the comparable sentence imposed
    on Brown for possession of a loaded restricted firearm.  Further, as in
Brown
,
    the appellant was sentenced to one year imprisonment, consecutive to Count 1,
    for each of his firearms prohibition order offences.

[40]

It
    is true that, in contrast to
Brown
, the sentencing judge in this case
    recognized some potential for the appellants rehabilitation.  However, unlike
    Brown, the appellant, when confronted by police, fled in a residential area
    while carrying a loaded firearm and subsequently resisted arrest, thereby
    exposing the involved police officers and nearby residents to the risk of
    serious harm.  This conduct aggravated the seriousness of the appellants
    offences.

[41]

I
    also note that, in
Brown
, this court once again emphasized, at para.
    14: Handguns are an all too prevalent menace in the Greater Toronto Area. 
    First and foremost, the sentences imposed for firearms offences must further
    the sentencing goals of denunciation, deterrence and protection of the
    public.  These comments apply with equal force in this case.

[42]

In
    the end, the overall sentence imposed on the appellant cannot be said to be
    demonstrably unfit.  Indeed, I view it as lenient in all the circumstances.

(3)

The Constitutional Issues

[43]

Section
    95(2)(a)(ii) of the
Code
provides that, upon conviction for possession
    of a loaded restricted or prohibited firearm and where the Crown proceeds by
    indictment, the offender faces a five-year minimum sentence of imprisonment
    where the conviction is a second or subsequent offence.  Under s. 84(5) of
    the
Code
, an offence under s. 117.01(1)  possession of a weapon
    contrary to a weapons prohibition order  constitutes a second or subsequent
    offence for the purpose of s. 95(2)(a)(ii).

[44]

The
    appellant attacks the constitutionality of this five-year mandatory minimum
    sentence provision for repeat firearms offenders.  He submits that it offends
    both ss. 7 and 12 of the
Charter
.

[45]

The
    appellant did not raise these issues at trial, instead advancing them for the
    first time on this appeal hearing.  It is well-established that appeal courts
    generally will not entertain arguments not made at trial.  This general rule
    applies to constitutional arguments raised for the first time on appeal,
    regardless of the constitutional remedy sought: see for example
R. v. Roach
,
    2009 ONCA 156, [2009] O.J. No. 662, at para. 6. The appellants failure to mount
    his
Charter
ss. 7 and 12 arguments at trial deprives this court of the
    reasoned analysis of the trial court on these issues.

[46]

In
    any event, in my view, we need not reach these constitutional issues in this
    case. Regardless of the mandatory minimum sentence of five years imprisonment
    established by s. 95(2)(a)(ii) of the
Code
, the circumstances of these
    offences and this offender, as outlined by the sentencing judge, amply justify the
    sentences imposed at trial.  The fresh evidence filed on appeal does not alter
    this conclusion.  The sentencing judge made no error in principle and the
    overall sentence imposed is not demonstrably unfit.  In these circumstances, it
    is unnecessary to consider the appellants constitutional challenges to s.
    95(2)(a)(ii) of the
Code
.

VI.     Disposition

[47]

For the reasons given, I would grant leave to appeal from sentence and
    dismiss the sentence appeal.

Released:

NOV 12 2013                                   E.A.
    Cronk J.A.

DD                                                  I
    agree Doherty J.A.

I
    agree S.T. Goudge J.A.

I
    agree R.A. Blair J.A.

I
    agree M. Tulloch J.A.


