COURT OF APPEAL FOR BRITISH COLUMBIA
|
Citation: |
R. v. Sellars, |
|
|
2018 BCCA 195 |
Date: 20180518
Docket: CA45028
Between:
Regina
Appellant
And
Jordell Anthony Sellars
Respondent
|
Before: |
The Honourable Madam Justice Saunders The Honourable Madam Justice D. Smith The Honourable Madam Justice Griffin |
On appeal from: An
order of the Supreme Court of British Columbia, dated December 13, 2017 (R.
v. Sellars, 2017 BCSC 2236,
Williams Lake Docket No. 33863-2).
|
Counsel for the Appellant: |
S. Elliott |
|
Counsel for the Respondent: |
D.M. Turko, Q.C. |
|
Place and Date of Hearing: |
Vancouver, British Columbia April 25, 2018 |
|
Place and Date of Judgment: |
Vancouver, British Columbia May 18, 2018 |
|
Written Reasons by: |
|
The Honourable Madam Justice D. Smith |
|
Concurred in by: |
|
The Honourable Madam Justice Saunders |
|
The Honourable Madam Justice Griffin |
Summary:
The Crown appeals a suspended sentence with a three-year probation period imposed on Mr. Sellars following his conviction for firearms offences, including unauthorized possession of a prohibited handgun, contrary to s. 95(1) of the Criminal Code. The Crown contends the sentencing judge erred by mischaracterizing Mr. Sellars’ conduct as not truly criminal and failing to give any or sufficient weight to the paramount principles of denunciation and general deterrence. Held: appeal allowed and sentence varied. The judge’s mischaracterization of Mr. Sellars’ conduct impacted his analysis of the appropriate sanction and resulted in a sanction that was disproportionate to the gravity of the offence and unfit. However, in light of the significant Gladue factors applicable to Mr. Sellars’ circumstances, his exceptional mitigating circumstances, a sentence below the range for firearms offences is justified. The sentence is varied to a conditional sentence order of two years less one day, with conditions as specified.
Reasons for Judgment of the Honourable Madam Justice D. Smith:
[1] The Crown applies for leave and, if leave is granted, appeals an order suspending the passing of sentence and imposing a three-year probation order on the respondent, Jordell Anthony Sellars, for the following Criminal Code firearms offences:
a) Count 1: unauthorized possession of a loaded handgun, contrary to s. 95(1);
b) Count 2: being an occupant of a motor vehicle in which he knew there was an unregistered handgun for which neither the occupant nor any other occupant held an authorization or licence, contrary to s. 94(1); and
c) Count 4: transporting a handgun in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1).
[2] The Crown submits that the judge erred in principle by failing to give any or sufficient weight to the paramount principles of denunciation and general deterrence mandated by the appellate authorities for these types of offences. That error, the Crown argues, impacted the sentence imposed, which was disproportionate to the gravity of the offences and the moral blameworthiness of the offender. The Crown further contends the sentence is, in any event, demonstrably unfit as it is a radical departure from the custodial sentences generally imposed for these types of offences, which generally begin at a range of three to four years.
[3] Mr. Sellars is an Indigenous person and a member of the Xat’sull (Soda Creek/Deep Creek) First Nation. He submits the judge’s imposition of a rehabilitative sentence that focused on principles of restorative justice was fit and appropriate in his personal circumstances, including the Gladue factors that applied to him as an Aboriginal offender, pursuant to R. v. Gladue, [1999] 1 S.C.R. 688. Those circumstances, as found by the judge in reasons for sentence indexed as 2017 BCSC 2236, included that: (i) Mr. Sellars had “a multigenerational family history of substance abuse, familial instability, fragmentation and breakdown, and premature death”; (ii) which “legacy continues to impact the lives of successive generations within Mr. Sellars’ family including Mr. Sellars himself”; and (iii) whose “inability to deal with unresolved grief and loss played a prominent role in two suicide attempts and continued unabated until he developed alcoholic pancreatitis at age 19 prompting his treatment at the Round Lake Treatment Center” (at para. 33).
[4] In my respectful view, there is some merit in each party’s position. As I will explain below, I am of the view that in the circumstances of these offences, the sentencing judge erred in principle by failing to give any or sufficient weight to the paramount principles of denunciation and general deterrence as a result of his mischaracterization of the gravity of the offences, which he found did not fall at the “true crime” end of the spectrum of firearms offences because the illegal handgun was being used for a defensive purpose. That finding appears to have led him into imposing a disproportionate and therefore unfit sentence. I am also persuaded, however, that the judge’s positive findings with respect to Mr. Sellars’ personal mitigating circumstances, his successful rehabilitation efforts following these offences, and the Gladue factors that diminished Mr. Sellars’ moral blameworthiness, must be given deference. Accordingly, I would vary the sentence by imposing a conditional sentence order for a period of two years less a day, with conditions that include certain punitive terms, which I shall outline below.
[5] Mr. Sellars, age 26 at the time of the offences, was one of five passengers in a truck driven by his mother on September 4, 2015, in the City of Williams Lake. A patrolling RCMP officer stopped the vehicle for a traffic violation. Upon approaching the driver’s side of the vehicle, the officer detected the odour of fresh marihuana emanating from inside the vehicle. He recognized Mr. Sellars, who was seated in the right rear passenger seat, from prior dealings. He also knew him to have been a past member of the Indian Outlaw Gang (the “IO”).
[6] The IO was one of three “unstructured and unorganized” gangs around the Williams Lake area that were involved in a number of death threats, shootings, and killings targeting members of their rival gangs. Targeted killings included one of Mr. Sellars’ cousins, with whom he had grown up, in 2013 and his best friend in 2014. The killing of his cousin appears to have been the impetus for escalating gang violence that reached a peak in 2015. In his reasons, the judge described the effect of the gang violence on the local Aboriginal community and the broader Williams Lake community as follows:
[5] Gang violence has strained the RCMP’s resources in Williams Lake. City Hall and community leaders are at wits end. It is having a high impact on the City psychologically and financially. The violence is random and unpredictable and difficult for the RCMP to manage. Despite attempts by the RCMP and the Williams Lake community to curb the violence, it has been and remains a significant issue for the community.
[7] The officer advised the occupants of the truck that they were under arrest for possession of marihuana. Additional officers arrived and directed the occupants of the truck to exit the vehicle. During a search incidental to arrest, an officer asked Mr. Sellars to empty his pockets and observed Mr. Sellars attempting to discard nine live rounds of .32 calibre ammunition from his pockets into the box of the truck. A further search of the vehicle led to the discovery of a .32 calibre Colt handgun (a prohibited weapon) under the right rear passenger seat. The handgun was loaded with six rounds of ammunition. A claw hammer, two hunting knives, and a collapsible baton were also found in the rear passenger compartment.
[8] At his trial in March of 2017, Mr. Sellars unsuccessfully raised the defence of self-defence. He testified that he obtained the handgun “from the street” for the protection of himself and his family, and that he kept it with him at all times because of the gang violence in the area. In 2015 he was working for the Mount Polley Mine and living part-time with his brother in rented quarters in Williams Lake. At that time, his brother was still an entrenched member of the IO and there was an attempted home invasion by three or four individuals whom Mr. Sellars believed were members of one of the rival gangs. Gang violence also resulted in the targeted killing of a gang member in early 2015, and in 2016 another gang member was killed in a home invasion. Following these incidents, the police warned Mr. Sellars that he too was the subject of a planned “hit”.
[9] Mr. Sellars’ formative years were “relatively positive” and he graduated from high school. However, he developed a serious substance abuse problem after he was introduced to alcohol and marihuana when he was 10. Between the ages of 10 and 13, he was pressured by older cousins to become involved in the IO. By age 16, he was a member of the gang and actively involved in their activities.
[10] The gangster lifestyle involved organized criminal activities to support the members’ abuse of alcohol and other illegal substances. After joining the gang, Mr. Sellars’ alcohol consumption escalated along with his use of cocaine and other illicit substances. He was hospitalized on a number of occasions for alcohol poisoning, and suffered from the “DT’s”, a symptom of alcohol withdrawal. By age 19 (in 2008) he was diagnosed with alcoholic pancreatitis. In 2009 he completed an alcohol treatment program at Round Lake Treatment Centre.
[11] After Mr. Sellars completed the treatment program, he became determined to change his lifestyle. He stopped drinking and using illicit drugs. He also left the IO. However, his ongoing proximity to the community’s gang violence resulted in him suffering depression and feelings of hopelessness, grief, and loss. His first suicide attempt followed upon the murder of his cousin; his second upon the death of his best friend.
[12] In July 2014, he became determined to disassociate from his previous gang-related peers. He moved with his girlfriend to her home community in Alberta where he completed a number of industry-training certificates and began working in the oil fields. When he was laid off, the couple returned to the Williams Lake area, and in the spring-summer of 2015 he secured employment at the Mount Polley Mine, living part-time with his brother in Williams Lake while he was working. On September 4, 2015, he was arrested for these offences and released on September 9, 2015, after which he and his spouse relocated to Ashcroft. Eventually they settled in Kamloops. He continued working at the mine on a seven-days-on/seven-days-off rotation, and is still there to this date. In 2016, the couple’s son was born.
[13] Following his March 17, 2017 convictions for these offences, sentencing was scheduled for June 12, 2017. However, Mr. Sellars failed to appear. On July 3, 2017, he was arrested and detained in custody until he was sentenced on December 13, 2017. Overall, he spent 169 days in custody prior to being sentenced. At the sentencing hearing, he also pleaded guilty to failing to appear, for which he received an additional sentence of seven days’ consecutive based on a joint submission.
[14] Mr. Sellars has a dated criminal record except for a 2012 conviction for possession of a weapon (a machete), for a purpose dangerous to the public peace, to which he pleaded guilty in December 2014 and was fined $200. Since his arrest on the present offences, he has remained a productive member of society, working at Mount Polley Mine and residing in Kamloops with his spouse and son.
[15] In submissions before the judge, the Crown asked for a federal sentence of incarceration of four years, relying on R. v. Racette, 2016 BCCA 275, and R. v. Kachuol, 2017 BCCA 292. The Crown contended that based on these authorities, the bottom end of the range for possession of illegal firearms offences simpliciter was three years’ imprisonment. Counsel for Mr. Sellars submitted that in R. v. Lacasse, 2015 SCC 64, the Court reiterated that sentencing ranges are guidelines only and do not derogate from the broad discretion of a sentencing judge to craft a fit sentence for the individual offender before the court, which may be outside the range but still proportionate. Counsel asked for a restorative non-custodial sentence given Mr. Sellars’ mitigating circumstances, the Gladue factors, and the different methodology required by s. 718.2(e) in determining a fit sentence for Aboriginal offenders, which provides that:
all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[16] The judge acknowledged the seriousness with which Canadian society treats these offences, and the weight of appellate authority that mandates denunciation and general deterrence as the paramount principles of sentencing (at para. 76) and generally requires a lengthy period of incarceration for these types of offences (at para. 97). However, the judge distinguished that appellate authority where exceptional circumstances are established (at para. 76), relying on R. v. Voong, 2015 BCCA 285, and where the possession of handguns is for a purely defensive purpose (at para. 77):
[77] Section 95(1) captures a wide range of conduct. The authorities to which I have been referred distinguish between possession of handguns as part and parcel of criminal activities and cases, as here, where the possession of a handgun was for purely defensive reasons. The range of sentences tends to depend on the facts of the individual case.
[17] The judge found that specific deterrence was not a primary issue as Mr. Sellars’ rehabilitative efforts following the offences had demonstrated that he was a changed person, who had expressed remorse, rejected alcohol and drugs, and succeeded in remaining a productive member of society (at paras. 98–99). He found these to be exceptional circumstances given Mr. Sellars’ background, and noted that in considering the application of s. 718.2(e) to an Aboriginal offender, “the concept of restorative justice for a First Nations offender can command the greatest weight in sentencing, notwithstanding the serious nature of the crime: R. v. Wells, 2000 SCC 10 at para. 49” (at para. 96).
[18] The judge also noted the comments of Madam Justice Dickson in R. v. Kachuol, 2017 BCCA 292 at para. 26, where she reiterated that the only reasonable explanation for carrying a loaded handgun was for an illicit purpose to threaten or inflict serious bodily harm or death, and that the imposition of exemplary sentences for possession simpliciter supported and advanced the intent of the Code provisions to intervene before someone was actually harmed or some crime was actually committed. The judge purported to rely on this context for assessing the gravity of the offences, but then distinguished that authority from the circumstances of this case where Mr. Sellars, he found, was in possession of the handgun for a defensive purpose:
[87] Mr. Sellars’ conduct must be characterized and he must be sentenced in this context, while at the same time considering the Gladue Factors which are part and parcel of the determination of a fit sentence. Mr. Sellars’ background has a diminishing effect on his moral blameworthiness. As to the circumstances of the offence, the distinctions I draw from these cases is that Mr. Sellars was not in possession of the Handgun as part of an illicit purpose. He had it for defensive purposes. Also, with the guidance of Gladue and [R. v. Ipeelee, 2012 SCC 13], I draw the distinction of Mr. Sellars’ personal circumstances and exceptional rehabilitative initiatives.
[Emphasis added.]
[19] In this context, that is, where an offender is in possession of a loaded handgun ostensibly for a defensive purpose, the judge considered whether a rehabilitative sentence would sufficiently address the principles of denunciation and deterrence:
[92] Denunciation and deterrence do not always require a jail sentence. Both conditional sentence orders and probation orders can have deterrent effects. As noted in Voong, a breach of a probation order can result in a revocation and sentencing on the original offence. The Court of Appeal referred to this as the “Sword of Damocles” hanging over the offender’s head: Voong at para. 39; R. v. Carrillo, 2015 BCCA 192. “Put another way, a condition need not be punitive in nature in order to achieve deterrence or denunciation”: Voong at para. 43.
…
[108] A suspended sentence coupled with a lengthy period of probation would, in my view, be a fit, proper and proportionate sentence and would meet the sentencing objectives of the Code. It would take into account the gravity of the offences, Mr. Sellars’ personal circumstances and successful efforts at rehabilitation. It would be a “holistic”, proportionate sentence that in my view fits precisely with what the Supreme Court contemplated in Gladue and Ipeelee.
[20] The judge underscored this last statement by referring (in para. 109) to the following excerpt from Ipeelee:
[86] In addition to being contrary to this Court’s direction in Gladue, a sentencing judge’s failure to apply s. 718.2(e) in the context of serious offences raises several questions. First, what offences are to be considered “serious” for this purpose? As Ms. Pelletier points out: “Statutorily speaking, there is no such thing as a ‘serious’ offence. The Code does not make a distinction between serious and non-serious crimes. There is also no legal test for determining what should be considered ‘serious’” (R. Pelletier, “The Nullification of Section 718.2(e): Aggravating Aboriginal Over-representation in Canadian Prisons” (2001), 39 Osgoode Hall L.J. 469, at p. 479). Trying to carve out an exception from Gladue for serious offences would inevitably lead to inconsistency in the jurisprudence due to “the relative ease with which a sentencing judge could deem any number of offences to be ‘serious’” (Pelletier, at p. 479). It would also deprive s. 718.2(e) of much of its remedial power, given its focus on reducing overreliance on incarceration. A second question arises: Who are courts sentencing if not the offender standing in front of them? If the offender is Aboriginal, then courts must consider all of the circumstances of that offender, including the unique circumstances described in Gladue. There is no sense comparing the sentence that a particular Aboriginal offender would receive to the sentence that some hypothetical non-Aboriginal offender would receive, because there is only one offender standing before the court.
[Emphasis added.]
[21] Having found that the offences were not committed for an illicit purpose, and that Mr. Sellars’ personal circumstances before and after the offences were exceptional, and considering his youth at the time of the offences, the significant Gladue factors, and the directive in s. 718.2(e), the judge concluded that a suspended sentence with the maximum period of probation (three years) was a fit sentence.
[22] It is well established that sentencing judges must be given wide latitude, and their decisions are entitled to considerable deference (Lacasse at paras. 11 and 41). An appellate court is only entitled to intervene by varying a sentence if it identifies a material error that impacted the judge’s analysis in imposing the sentence, and then, after assessing the sentence imposed, determines that sentence is unfit; alternatively, appellate intervention may be justified in the absence of a material error if the sentence is demonstrably unfit (R. v. Agin, 2018 BCCA 133, at paras. 52‒57).
[23] I am of the view that the judge erred in principle in his characterization of the seriousness of these offences in stating that they were not for an illicit purpose because Mr. Sellars was carrying a loaded handgun for a defensive purpose. This mischaracterization of the true criminal nature of the offences led the judge into error in his assessment of Mr. Sellars’ degree of moral blameworthiness and in focusing on the principle of rehabilitation to such a degree that he minimized the principles of denunciation and general deterrence. In the result, the imposition of a rehabilitative sentence in the circumstances of this case failed, in my respectful view, to meet the fundamental principle of sentencing as provided for in s. 718.1 of the Code, namely that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[24] Mr. Justice Doherty in R. v. Nur, 2013 ONCA 677, provided a helpful description of the spectrum of conduct for offenders captured by s. 95(1). Mr. Nur, at age 19, was found in possession of a loaded prohibited firearm near the entrance of a community centre in a high crime area. He pleaded guilty and, in light of the three-year mandatory minimum sentence imposed under s. 95(2)(a)(i), received an effective sentence of 40 months (time served), after two for one credit was given to 20 months of his pre-sentence custody. The Ontario Court of Appeal allowed the appeal in part, holding that the mandatory minimum sentence imposed under s. 95(2)(a)(i) was unconstitutional, but otherwise upheld the sentence. Justice Doherty, writing for the Court, discussed the nature of the offence in s. 95(1), describing it as including a spectrum of conduct. At one end of the spectrum is “the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade”; at the other end is a person who “has a licence and registration certificate for [a] firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence” (Nur at para. 51). For most offenders, possession of a prohibited or restricted firearm will fall at the “true crime” end of the spectrum as the conduct “is directly connected to criminal activity and/or poses some other immediate danger to other persons” (Nur at para. 52). On appeal to the Supreme Court of Canada, the majority of the Court similarly held the mandatory minimum sentences imposed under s. 95(2) were unconstitutional but did not interfere with the actual sentence given to Mr. Nur, stating that it “remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in [Mr. Nur’s case]” (R. v. Nur, 2015 SCC 15, at para. 120).
[25] This Court has also addressed the gravity of these types of offences. In R. v. Holt, 2015 BCCA 302, the offender was stopped for a traffic violation and found to be in possession of a loaded restricted firearm without a licence, contrary to s. 95(1) of the Criminal Code. On a Crown appeal from a sentence of 18 months’ imprisonment, this Court found the judge had erred in principle by failing to give sufficient weight to the principles of denunciation and deterrence in order to reflect the seriousness of this offence. Speaking for the Court, Madam Justice Newbury observed that “the possession of a loaded firearm does pose a serious threat, and a growing one, to communities across Canada” and that “[t]here is no reason why British Columbia courts should take this threat less seriously than other Canadian courts now do” (at para. 18). Consequently, she determined that a re-alignment of the range of sentences for firearms offences in British Columbia was required, and indicated that the bottom end of that range should be close to three years’ imprisonment. In the result, the Court increased the sentence to 30 months’ imprisonment.
[26] Similarly, in Kachuol, the offender was stopped for impaired driving and found to be in possession of an unregistered and loaded handgun, contrary to s. 95(1) of the Criminal Code. Upon conviction, he received a conditional sentence order of 23 months and 29 days. On appeal, this Court found the sentence was demonstrably unfit and increased it to three years’ imprisonment, finding that the judge failed to give sufficient weight to the principles of denunciation, deterrence, and public protection and gave undue emphasis to the offender’s personal circumstances, which, while positive, were not exceptional. Speaking for the Court, Justice Dickson found that the judge erred in characterizing the offender’s conduct as not that of “an outlaw or a true criminal, who was carrying the Revolver as a tool of his trade” (reproduced in para. 17) and therefore not falling at the “true crime end of the spectrum” in the absence of evidence that he was using the handgun in furtherance of or connected to other criminal activity. Justice Dickson concluded that the possession of a loaded gun in a moving car was clearly outside of the regulatory framework as it posed a real and immediate danger “to those in his orbit” (at para. 29):
[28] There was nothing in the evidence to indicate that Mr. Kachuol’s possession of the loaded, prohibited “crime gun” was for anything other than a criminal purpose. Nor did he even suggest it. There was simply no possible benign reason for his unlawful possession of the loaded gun apparent on the evidence. In such circumstances, proof of a direct connection with other criminal activity was unnecessary to situate the offence at the “true crime” end of the s. 95(1) spectrum. In my view, requiring such proof would tend to defeat the purpose of the provision.
See also R. v. Guha, 2012 BCCA 423, R. v. Ball, 2014 BCCA 120, and R. v. Oud, 2016 BCCA 332, where this Court underscored the paramount importance of the principles of denunciation and deterrence in sentencing for firearms offences and increased the custodial periods of imprisonment that had been imposed.
[27] In this case, Mr. Sellars’ unlawful possession of a loaded handgun could only have been for an illicit purpose: to threaten, seriously harm, or kill a person or persons in circumstances that he considered as justified. Such actions would clearly pose an immediate risk to anyone in his orbit. Canadian society does not permit the possession and use of firearms as a method of resolving disputes. That “tragedy in gestation” (Kachuol, at para. 26), which has led to the increase of gun violence in so many Canadian communities, including in the Williams Lake area and its surrounding Aboriginal communities, has also left its mark on Mr. Sellars with the senseless deaths of two young persons to whom he was close. In my respectful view, the principles of denunciation and general deterrence were not adequately reflected in the imposition of a suspended sentence in this case.
[28] Aboriginal offenders pose unique circumstances that must be considered for sentencing. This has long been recognized in the well-established decisions of Gladue, Wells, and Ipeelee, and the codification of s. 718.2(e), which directs that all available sanctions, other than imprisonment, be considered for Aboriginal offenders in particular where that would be reasonable and consistent with the harm done to victims or to the community.
[29] The sine qua non of a just sanction is proportionality. Proportionality ensures that a sentence reflects the gravity of the offence and does not exceed what is appropriate given the degree of responsibility or the moral blameworthiness of the offender (Ipeelee at para. 37). This fundamental principle of sentencing applies to every offender.
[30] Assessing the moral culpability of Aboriginal offenders requires special consideration of their unique historical, systemic, or background factors that may have played a part in their offending conduct (Ipeelee at para. 73). In determining an appropriate sanction for Aboriginal offenders, courts must consider (i) their different world views including “the substantive content of justice and the process of achieving justice” (Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: The Commission, 1996) at 309), which focus to a greater extent on restorative justice principles; and (ii) their different cultural values and experiences (Gladue at paras. 62‒63; Ipeelee at para. 74).
[31] A disparity between sentences for Aboriginal offenders and other offenders can be justified where there are circumstances unique to the Aboriginal offender, even when considering the principle of parity as codified in s. 718.2(b) that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (Ipeelee at paras. 78‒79). Similarly, a sentence outside the established range of sentences for an offence can still be a fit sentence if it is proportionate to the gravity of the offence and degree of responsibility of the offender (Lacasse at para. 58).
[32] Section 718.2(e) requires a different “methodology” for assessing a fit sentence for an Aboriginal offender, but does not require that goals of denunciation and deterrence be given less weight than the principles of restorative justice, particularly for serious crimes. Seriousness of a crime is determined by considering the gravity of the offence and the degree of responsibility of the offender (Wells at paras. 44 and 46).
[33] As I have concluded, the nature of these types of firearms offences mandates that paramount consideration be giving to the principles of denunciation and deterrence for the reasons stated. However, the unique circumstances of Aboriginal offenders can diminish their degree of moral blameworthiness for an offence and therefore the weight to be given to those principles of sentencing.
[34] In addition to the Gladue factors, exceptional circumstances can justify a sentence outside the established range for an offence. Madam Justice Bennett explained what may amount to exceptional circumstances in R. v. Voong, 2015 BCCA 285 as follows:
[59] …Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgment of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence.
[35] The judge found that Mr. Sellars’ moral blameworthiness was mitigated by his background circumstances that included having been pressured and socialized into the IO gang as a young person by older males from his own community, and introduced into substance abuse as early as age 10, which led to chronic substance abuse that almost killed him. He also found that in spite of these circumstances, Mr. Sellars had undertaken exceptional rehabilitative initiatives that included disassociating himself from the IO, moving away from his home community, taking concrete steps to address his chronic substance abuse, which led to him stopping any consumption or use of alcohol and illicit drugs, and maintaining full-time employment to support his family with whom he has settled down in a new community. These findings are supported by the evidence and in my view must be given deference.
[36] The Supreme Court of Canada has distinguished conditional sentence orders from suspended sentences with probation in R. v. Proulx, 2000 SCC 5. A suspended sentence with probation is primarily a rehabilitative sentencing tool, while a conditional sentence order can address both punitive and rehabilitative objectives (Proulx at para. 23). In light of the weight of appellate authority that mandates a focus on general deterrence and denunciation for firearms offences and suggests that the range of sanctions for such offences begins with approximately three years’ imprisonment, the rehabilitative sentence imposed by the judge was not, in my view, fit in the circumstances, even in light of Mr. Sellars’ mitigating circumstances and the applicable Gladue factors.
[37] To be balanced against those factors, is that Mr. Sellars is an Aboriginal offender to whom s. 718.2(e) applies, who was found by the judge to have undertaken exceptional rehabilitative steps, and whose moral culpability was diminished by his background circumstances. In particular, by the judge’s own account, the community leaders and police of the Williams Lake area and in Mr. Sellars’ home community were at their wits end in trying to address the violence of competing gang activity. In the face of this turbulence, Mr. Sellars demonstrated the strength of character, not only in coming to grips with his substance abuse, but to disassociate himself from the people involved in the gangster lifestyle because it required him to effectively leave his home community. It seems to me that this dynamic makes his personal circumstances more commendable and favourably distinguishes his case from the circumstances of the offenders in Nur, Holt, Kachuol, and other appellate authorities on firearms offences. Additionally, Mr. Sellars no longer poses a risk to the public; specific deterrence was not an issue in his sentencing. As a result, in my view, a sanction below the general range established in Holt is justified in Mr. Sellars’ case.
[38] In my assessment, a conditional sentence order of two years less a day, with the following conditions, would proportionately reflect the paramount principles of denunciation and deterrence, Mr. Sellars’ diminished moral culpability in his unique circumstances as an Aboriginal offender, and the exceptional rehabilitative steps he has successfully undertaken in the face of difficult and challenging circumstances during his youth, while also giving some credit to having served his suspended sentence without incident since its imposition on December 13, 2017.
[39] In the result, I would grant leave to appeal, allow the appeal, and vary the sentence imposed to a conditional sentence order of two years less a day, subject to the conditions set out below:
a) you will keep the peace and be of good behaviour;
b) you shall appear before the court when required to do so by the court;
c) you shall report in person to a supervisor within two working days after the making of this conditional sentence order and thereafter when required to do so by the supervisor and in the manner directed by the supervisor;
d) you shall remain in the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor;
e) you shall notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation;
f) you shall abstain from the consumption of drugs, except in accordance with a medical certificate, of alcohol, or any other intoxicating substance;
g) you shall not own, possess or carry any weapon as defined in s. 2 of the Criminal Code;
h) you shall perform 100 hours of community services as approved by your supervisor, which is recommended to include speaking to students enrolled in the Kamloops school system;
i) you must attend the Kamloops Aboriginal Friendship Centre Society for programs at your supervisor’s direction as and when required;
j) for the first six months of your sentence, you shall not be within the limits of the City of Williams Lake or within 10 kilometers of the Soda Creek residential area, except for the purposes of your employment at Mount Polley Mine, without the prior written consent of your supervisor;
k) for the first six months of your sentence, you are to remain within your approved residence at all times; unless you have the express written consent of your supervisor, or you are travelling directly to and from your place of employment, or you are working outside of the community where you reside with the written permission of your supervisor;
l) for the following six months of your sentence, you must remain inside your residence between the hours of 8:00 p.m. and 6:00 a.m. daily;
m) both the house arrest and curfew imposed under conditions (k) and (l) are subject to the following exceptions:
i. at any time with the express written consent of your supervisor;
ii. when travelling directly to or from your place of employment, or when you are working outside of the community where you reside with the written permission of your supervisor;
iii. when travelling to or from or attending any counselling, treatment, educational programs, or community service;
iv. at any time for medical appointments for yourself or your family;
v. three times per week for a maximum of three hours on each occasion to attend to shopping or other personal business, with the prior written consent of your supervisor.
[40] I would also make the ancillary orders set out by the judge in paras. 112‒118 of his reasons for sentence.
“The Honourable Madam Justice D. Smith”
I AGREE:
“The Honourable Madam Justice Saunders”
I AGREE:
“The Honourable Madam Justice Griffin”