In R. v. T.A.P., 2014 ONCA 141, the Ontario Court of Appeal imposed what essentially amounts to a two-year house arrest sentence for possession of a loaded handgun with a defaced serial number. In doing so, the Court of Appeal overturned the sentencing judges’s 90 day intermittent sentence.

T.A.P is important in two respects. First, it illustrates the unjust sentence that could have resulted if the 3 year mandatory minimum sentence had not already been struck down in R. v. Smickle. Second, it indicates the sentencing range for loaded handgun cases that do not fall at the “true crime end of the spectrum” – as was recently described by the Court of Appeal in R. v. Nur.

Background

Ms. T.A.P. was a 45 year-old first offender of Aboriginal heritage. She had alcohol and cocaine addictions and was the mother of several children. She had a domestic dispute with her partner that resulted in his arrest.  At the time of his arrest, her partner told the police that Ms. T.A.P. had a gun beside the cushion of the chair in her bedroom.

Ms. T.A.P. entered guilty pleas. She was a first-time offender. At the time of sentencing she had taken significant steps toward rehabilitation while on bail. The sentencing judge found there was no evidence that Ms. T.A.P. actively sought the gun or that she had any intention of using it. She was a passive recipient. The sentencing judge also accepted Ms. T.A.P.’s evidence that she was afraid of both her former partner and drug dealers in her neighborhood.

Court of Appeal’s 2-year global sentence

The Court of Appeal imposed the following sentence:

(i) on the s. 95(1) offence for possession of a loaded gun, 90 days’ imprisonment to be served intermittently (i.e. on weekends), plus 3 years’ probation; and,

(ii) on the s. 108 offence for possessing a firearm with a defaced serial number, a conditional sentence of 21 months less a day (i.e. house-arrest).

The result was a global sentence of two years less a day, plus three years’ probation.

The “true crime spectrum” for firearm offence sentenecing

There is little doubt that Ms. T.A.P. would have received a higher sentence if the evidence suggested that she was involved in drug trafficking or violence.  As the Court of Appeal stated n R. v. Nur concerning s. 95 firearm offences:

[51]       The scope of s. 95 is best understood by considering the range of potential offenders caught by that section.  At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.  By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public.  At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence.  That person’s conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

 [52]       There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum.  Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act.  Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate.  Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

 […]

 [206]    Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum.  Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.  Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

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