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Criminal - Sentencing - Firearms. R. v. Burke-Whittaker
In R. v. Burke-Whittaker (Ont CA, 2025) the Ontario Court of Appeal dismissed a Crown sentencing appeal, here from a guilty plea to "one count of possession of a loaded or prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code".
Here the court considers sentencing in "offences involving the possession of concealed firearms in public places":[35] The Supreme Court and this court have repeatedly emphasized the seriousness of offences involving the possession of concealed firearms in public places. For example, in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 68, the court stated:Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder … A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. [Citations omitted.] [36] See also R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 1, 82; R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, at para. 126, leave to appeal to S.C.C. requested, 41353; R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 6; and R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, at para. 78.
[37] This court has also repeatedly stressed that general deterrence and denunciation are the primary objectives for offences involving the possession of a concealed firearm in a public place: R. v. Stephens, 2024 ONCA 793, at para. 18; R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at para. 114; and R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 201 O.A.C. 138 (C.A.), at paras. 77-78. The closing words at para. 14 of R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, remain highly relevant today: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. [38] Given the seriousness of the offence and the need for denunciation and deterrence, this court has stated that incarceration will almost always be required: Morris, at para. 71. In the normal course, the sentencing range begins at the low end of the penitentiary range for first-time offenders convicted of possessing a loaded prohibited firearm in circumstances where there is no other criminal activity: Habib, at paras. 18, 57; R. v. Smith, 2023 ONCA 620, at para. 7; R. v. Mohiadin, 2021 ONCA 122, at para. 13; R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 19; and R. v. Graham, 2018 ONSC 6817, at para. 37, aff’d 2020 ONCA 692, 474 C.R.R. (2d) 137. . R. v. Smith
In R. v. Smith (Ont CA, 2023) the Court of Appeal considers sentencing for (loaded) firearms offence:[7] The possession of a loaded handgun is a very serious offence. It is acknowledged that such conduct will normally attract a penitentiary term of imprisonment: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 at para. 151. If a penitentiary term of imprisonment cannot be excluded, then a conditional sentence should not be imposed: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58. . R. v. Showbeg
In R. v. Showbeg (Ont CA, 2023) the Court of Appeal considered sentencing for repeated firearms prohibitions violations:[5] Regarding the issue of concurrent sentences, the sentencing judge did not explain why he was departing from the general rule that separate violations of prohibition orders require consecutive sentences to ensure firearm prohibition orders do not go unpunished. As stated by this court in R. v. Claros, 2019 ONCA 626, at para. 53:More importantly, the fact that two offences relating to the breach of a prohibition order occur in close succession, or even at the same time, is not a basis for imposing concurrent sentences. The principle that such offences should be served consecutively is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. This principle also recognizes the fact that the breach of a prohibition order is different behaviour than the associate offences, engaging different social interests. [6] As an alternative to consecutive sentences, jurisprudence from this court has suggested that breaches of firearm prohibitions can be taken into account as a significant aggravating factor when fixing the appropriate sentence on a firearm charge. In these circumstances, a concurrent sentence on a charge of breach of a prohibition order may be imposed: R. v. McCue, 2021 ONCA 273, at para. 22. ....
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[9] In the result, leave to appeal sentence is granted. The sentence appeal is allowed in part. A lifetime firearm prohibition pursuant to s. 109(1)(b) of the Criminal Code is imposed. ...
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