R. v. Phinn (J.), 2015 NSCA 27

• Judge: Saunders, Farrar and Bourgeois, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 13, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSCA 27;(2015), 357 N.S.R.(2d) 212 (CA)

R. v. Phinn (J.) (2015), 357 N.S.R.(2d) 212 (CA);

    1127 A.P.R. 212

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MR.033

Jermaine Phinn (appellant) v. Her Majesty the Queen (respondent)

(CAC 421417; 2015 NSCA 27)

Indexed As: R. v. Phinn (J.)

Nova Scotia Court of Appeal

Saunders, Farrar and Bourgeois, JJ.A.

March 13, 2015.

Summary:

The accused was convicted of being an occupant in a vehicle in which he knew there was a firearm (Criminal Code, s. 94(1)) and carrying a concealed weapon (s. 90(1)). He was acquitted on two counts of possession of a weapon while prohibited from possessing them. The trial judge sentenced the accused to 72 months' imprisonment for the s. 94(1) offence and 25 months' imprisonment (concurrent) for the s. 90(1) offence. After 19 months' credit for remand time, the time left to be served was 53 months. The accused appealed the 72 month sentence for the s. 94(1) offence. He argued that: 72 months was excessive and demonstrably unfit; that the trial judge sentenced the accused on the s. 94(1) offence as if he had been convicted of the more serious s. 95(1) offence (possession of a loaded prohibited firearm); and that the trial judge erred in considering the two possession of prohibited weapons orders as an aggravating factor where the accused was acquitted of the possession of weapons while prohibited offences. The accused also argued that the trial judge erred in failing to appreciate or explain the disparity in sentence imposed as between the s. 90(1) and s. 94(1) convictions.

The Nova Scotia Court of Appeal, Farrar, J.A., dissenting, dismissed the appeal. The court rejected the submission that the trial judge was confused and mistakenly sentenced the accused for the more serious s. 95(1) offence. The failure to explain why the concurrent 25 month sentence was much lower than the 72 month sentence (which carried twice the maximum sentence and was for a more serious offence) did not constitute reversible error. The sentence, which fell within the 4-8 year range, was reasonable. Farrar, J.A., would have allowed the appeal and reduced the sentence to 36 months' imprisonment on the grounds that the trial judge erred in considering unproven weapons prohibition orders as an aggravating factor and because 72 months offended the parity principle respecting sentences imposed on similar offenders for similar offences committed in similar circumstances (submissions and case law did not support a 4-8 year range).

Criminal Law - Topic 5806.1

Sentencing - General - Sentence parity - General - The Nova Scotia Court of Appeal stated that "considerations of parity must be addressed carefully and not given any kind of special or exalted status among the other well-known principles of sentencing. This means that the principle of parity is not to be given priority over the principle of appellate deference paid to a judge's broad discretion to fashion a reasonable sentence to best suit the circumstances of the offence, the offender, and one's community." - See paragraph 93.

Criminal Law - Topic 5808

Sentencing - General - Questions of fact - The accused was convicted of being an occupant in a vehicle in which he knew there was a firearm (Criminal Code, s. 94(1)) and carrying a concealed weapon (s. 90(1)) - He was acquitted on two counts of possession of a weapon contrary to earlier prohibition orders - The accused argued that the trial judge, in sentencing him to 72 months' imprisonment for the s. 94(1) offence, erred in taking into account the two prohibition orders as an aggravating factor where he had been acquitted on charges of breaching those prohibition orders - The Nova Scotia Court of Appeal held that the trial judge was entitled to consider the prohibition orders as an aggravating factor because the orders pre-dated the offences for which the accused was convicted - The existence of three prior prohibition orders (one of which remained in effect at the time of the present offences) was relevant and was not dispute by the accused - Accordingly, notwithstanding the acquittals of the present charges for breaching prohibition orders, the trial judge did not err in considering them proven (s. 724(1)) without the Crown having to prove them as aggravating factors under s. 724(3) - It was significant that the accused was subject at various times to three weapons prohibition orders and had breached all of them at one time or another - See paragraphs 41 to 60.

Criminal Law - Topic 5836

Sentencing - Considerations on imposing sentence - Deterrence - Prevalence of similar crime - The Nova Scotia Court of Appeal stated that "besides the circumstances of the offence and the offender, a sentence must also reflect the current conditions and particular needs of the community where the crime occurred." - See paragraph 93.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle) - The Nova Scotia Court of Appeal stated that "ranges of sentence are guidelines, not fixed rules. Simply because the range is exceeded does not make the sentence unfit." - See paragraph 93.

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper considerations - [See Criminal Law - Topic 5808 ].

Criminal Law - Topic 5901

Sentence - Restricted or prohibited weapon in motor vehicle - The accused was convicted of being an occupant in a vehicle in which he knew there was a firearm (Criminal Code, s. 94(1)) and carrying a concealed weapon (s. 90(1)) - The accused was on the street with a fully loaded (eight rounds) revolver, which he hid under the driver's seat when he entered his vehicle - He was sentenced to 72 months' imprisonment for the s. 94(1) offence and 25 months' imprisonment (concurrent) for the s. 90(1) offence - After 19 months' credit for remand time, the time left to be served was 53 months - The accused appealed the 72 month sentence for the s. 94(1) offence, arguing that it was demonstrably unfit - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge did not err in stating the sentencing range was 12 months to eight years' imprisonment, as she was referring broadly to weapons offences in general, not s. 94(1) specifically - The trial judge's decision "reflects a careful consideration and application of the objectives and principles of sentencing which, in [the accused's] case, included: denunciation, protection of the public, specific deterrence, general deterrence; rehabilitation; proportionality; parity; attention paid to the 'jump' 'rule'; restraint; proper credit given for time spent on remand; and judicial notice taken of the frequency and increasing number of shootings and gun crimes in her community." - The accused had prior weapons prohibition orders which he had breached, a recent s. 94(1) offence for which he was sentenced to 3.5 years' imprisonment and a conviction of possession of a loaded prohibited firearm - This was his third firearms conviction in five years - Prior sentences and prohibition orders had not deterred him, notwithstanding his statements at each sentencing hearing of his intention to turn his life around - The court stated that it "has spoken out many times concerning the scourge of loaded firearms on the streets of our communities, and the risk they pose to the police and the law-abiding citizens they are sworn to protect" - The sentence imposed was reasonable - See paragraphs 61 to 92.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 8].

R. v. Mian (M.H.) (2014), 462 N.R. 1; 580 A.R. 1; 620 W.A.C. 1; 2014 SCC 54, refd to. [para. 24].

R. v. J.J.W. (2012), 321 N.S.R.(2d) 298; 1018 A.P.R. 298; 2012 NSCA 96, refd to. [para. 28].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 29].

R. v. Knockwood (S.J.) (2009), 283 N.S.R.(2d) 156; 900 A.P.R. 156; 2009 NSCA 98, refd to. [para. 29].

R. v. MacDonald (E.) (2014), 353 N.S.R.(2d) 59; 1115 A.P.R. 59; 2014 NSCA 102, refd to. [para. 29].

R. v. Brown (K.F.), [1991] 2 S.C.R. 518; 125 N.R. 363; 93 Sask.R. 81; 4 W.A.C. 81, dist. [para. 42].

R. v. Druken (J.K.) (2006), 261 Nfld. & P.E.I.R. 271; 790 A.P.R. 271; 2006 NLCA 67, dist. [para. 45].

R. v. Smyth, [2007] O.J. No. 1946 (Sup. Ct.), dist. [para. 45].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 47].

R. v. Ladue (F.R.) (2011), 302 B.C.A.C. 93; 511 W.A.C. 93; 2011 BCCA 101, refd to. [para. 49].

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17; 757 A.P.R. 17; 2005 NSCA 137, refd to. [para. 67].

R. v. A.N. (2011), 300 N.S.R.(2d) 282; 950 A.P.R. 282; 2011 NSCA 21, refd to. [para. 67].

R. v. E.M.W. (2011), 308 N.S.R.(2d) 15; 976 A.P.R. 15; 2011 NSCA 87, refd to. [para. 67].

R. v. Cater (K.) (2014), 349 N.S.R.(2d) 225; 1101 A.P.R. 225; 2014 NSCA 74, refd to. [para. 68].

R. v. L.M. (2008), 374 N.R. 351; 2008 SCC 31, refd to. [para. 96].

R.A.T. v. British Columbia (Attorney General) (2011), 306 B.C.A.C. 314; 516 W.A.C. 314; 2011 BCCA 263, refd to. [para. 160].

R. v. Brown (D.G.) (2010), 277 O.A.C. 233; 2010 ONCA 745, refd to. [para. 198].

R. v. Johnson (P.), [2010] O.T.C. Uned. 3213; 2010 ONSC 3213, refd to. [para. 201].

R. v. Bashir, 2010 ONCJ 548, refd to. [para. 204].

R. v. Ho (T.N.), [2011] A.R. Uned. 169; 2011 ABPC 47, refd to. [para. 205].

R. v. Durrive, 2011 BCPC 130, refd to. [para. 206].

R. v. Jones (D.A.), [2011] O.T.C. Uned. 5330; 2011 ONSC 5330, refd to. [para. 207].

R. v. Whyte (M.), [2011] O.T.C. Uned. 181; 2011 ONSC 181, refd to. [para. 208].

R. v. Blagdon (S.) et al., [2013] N.S.R.(2d) Uned. 186; 2013 NSPC 61, refd to. [para. 221].

R. v. Clayton (K.) (2013), 336 N.S.R.(2d) 33; 1063 A.P.R. 33; 2013 NSPC 94, refd to. [para. 223].

R. v. Hill (P.G.) (2011), 303 N.S.R.(2d) 10; 957 A.P.R. 10; 2011 NSPC 28, refd to. [para. 224].

R. v. Smith (E.A.), [2013] N.S.R.(2d) Uned. 43; 2013 NSSC 77, refd to. [para. 227].

R. v. Ali (R.R.) et al., [2012] O.T.C. Uned. 7013; 2012 ONSC 7013, refd to. [para. 228].

R. v. Jones (D.A.), [2011] O.T.C. Uned. 5330; 2011 ONSC 5330, refd to. [para. 229].

R. v. Muise (C.A.) (2008), 270 N.S.R.(2d) 380; 865 A.P.R. 380; 2008 NSSC 340, refd to. [para. 231].

R. v. Elie, 2015 ONSC 300, refd to. [para. 234].

Authors and Works Noticed:

Ewaschuk, Eugene, Criminal Pleadings and Practice in Canada (2nd Ed.) (Dec. 2014 looseleaf update), vol. 3, para. 18:1017 [para. 133].

Counsel:

Roger A. Burrill, for the appellant;

James A. Gumpert, Q.C., for the respondent.

This appeal was heard on September 12, 2014, at Halifax, N.S., before Saunders, Farrar and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal.

On March 13, 2015, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Saunders and Bourgeois, JJ.A. - see paragraphs 1 to 100;

Farrar, J.A., dissenting - see paragraphs 101 to 237.