Gagnon, Mainville, Gagné
Appeal from convictions. Dismissed. Application for leave to appeal from sentence and appeal from sentence. Allowed; a conditional sentence is substituted for the sentence imposed at trial.
The appellant, a weapons enthusiast, was convicted of careless storage of firearms, possession of prohibited weapons and devices, and possession of a prohibited firearm that is loaded or with readily accessible ammunition. He is appealing that verdict, arguing that the trial judge erred in refusing to exclude evidence obtained during the execution of search warrants at his residence. He is also seeking leave to appeal the sentence imposed on him of 17 months and 22 days imprisonment, less time served in pre-sentencing custody. He considers that the judge erred in failing to consider the possibility of a less restrictive sanction before depriving him of his liberty. Moreover, the trial judge allegedly erred in failing to accord sufficient weight to the mitigating factors.
The judge did not commit a decisive error in law or in principle or a palpable and overriding error in his assessment of the evidence when he found that the information contained sufficient reasonable grounds and that it was not necessary to review the decision of the justice of the peace to authorize the search warrant. In particular, he correctly applied the principle in R. v. Ballendine (C.A. (B.C.), 2011-03-24), 2011 BCCA 221, SOQUIJ AZ-50749212 with respect to the passage of time. It is clear that this is a factor to consider, but the mere fact that the information contained in the information is not recent does not mean that it is outdated, particularly in the case of offences involving the possession of firearms and prohibited devices, property that is neither consumable nor perishable.
The judge erred in principle in failing to consider ordering a sentence to be served in the community when all of the prerequisites set out in s. 742.1 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) were satisfied, including that set out in s. 742.1 (e)(iii) Cr. C. Indeed, although the offences committed by the appellant, set out in ss. 92 and 95 Cr. C., were prosecuted by indictment and are liable to a maximum sentence of 10 years’ imprisonment, they are not offences involving the use of a weapon, but rather offences related to the possession of a weapon. Furthermore, the range of sentences for the possession of firearms and prohibited devices is very broad and the principle of parity in sentencing does not preclude such an order.
In light of the numerous mitigating factors and of the fundamental principle of proportionality, a conditional sentence is the appropriate sentence in this case. Apart from the offences at issue, the appellant has an exemplary profile and does not present any problems with respect to dissuasion and rehabilitation. In addition, the conditions in the order achieve the objectives of denunciation and general deterrence.
Last, the orders condemning the appellant to pay the victim surcharge should be set aside, s. 737 Cr. C. having been declared unconstitutional by the Supreme Court.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca