Manitoba Court of Appeal overturns conditional sentence

Law360 Canada (November 5, 2024, 11:03 AM EST) --

John L. Hill

Dawson Paul Alexander Chief was only 19 in 2018 when he found a modified starter pistol and nine bullets wrapped in a sock left in a back alley.

Chief removed the spring in the gun to prevent it from being fired and decided he could make some money by selling the object he found. He advertised it on Facebook and found a buyer. The purchaser met Chief at an open and public space in front of the Winnipeg Art Gallery one afternoon.

Chief was asked if he could get more weapons, specifically a “sawed-off shotty.” Chief replied it was possible as he accepted the $150 cash from his unknown customer. The buyer was an undercover police officer.

Chief was charged with possession of a restricted firearm with ammunition and transferring a firearm with ammunition, violations of ss. 95 and 99 of the Criminal Code, respectively. He was also charged with a failure to comply with an appearance notice under s. 145(3) of the Code.

Chief pleaded guilty to the three offences. He was sentenced to eight days for the breach offence and a conditional sentence of two years less a day concurrent on the firearms offences. The sentencing judge refused to apply the three-year minimum sentence set out in s. 99 of the Code for trafficking in weapons because its application would amount to cruel and unusual punishment for this offender, a violation of his s. 12 Charter rights. The trial judge found Chief’s moral culpability was reduced because of his youth and immaturity.

She also considered factors appropriate to Indigenous offenders (R. v. Gladue, [1999] 1 S.C.R. 688). Since the offence, Chief has overcome a disadvantaged upbringing and was employed full time in Winnipeg, helping raise a daughter and has not re-offended. The sentencing judge also considered R. v. Nur, 2015 SCC 15, and other s. 95 cases. This jurisprudence was distinguished because the legal authorities presented to her involved the use of a weapon in crime and not simply the one-time sale of a gun.

The Crown appealed the sentence to the Manitoba Court of Appeal. A three-judge panel heard the argument in January 2024, and a decision was delivered on Sept. 19 (R. v. Chief, 2024 MBCA 67). The majority held that the sentence was demonstrably unfit and was in a substantial and marked departure from the sentences customarily imposed for similar offences (R. v. Parranto, 2021 SCC 46; R. v. M (CA), [1996] 1 SCR 500). This marked departure amounted to an error in principle allowing appellate court intervention (R. v. Friesen​​​​​​, 2020 SCC 9).

The court reasoned that when Bill C-21 was passed in 2021, Parliament saw fit to increase the maximum penalty for a s. 99 breach from 10 years to 14. This was Parliament’s signal that gun trafficking should treated more harshly. The court reviewed several cases ranging from the low to the high end of the sentencing spectrum. It acknowledged that conditional sentences have been imposed (R. v. Wetelainen, 2019 ONSC 869, and R. v. Sauve, 2018 ONSC 7375).

However, the sentencing judge failed to give adequate weight to aggravating factors that look to the nature of the weapon and the relative danger posed to the community. Handguns are particularly dangerous because of their size, concealability and their relationship to criminal activity. Here, the weapon was sold to a stranger. That indicates recklessness in not ascertaining the gun’s potential use (R. v. Hooke, 2021 MBPC). The sentencing judge failed to give proper weight to the principles of denunciation and deterrence.

The proper sentence should be three and a half years on each weapons charge, served concurrently. However, considering the passage of time and Chief’s significant personal growth and rehabilitation, there is no need for specific deterrence, and incarceration after six years of good behaviour would be counterproductive. The prison term was, therefore, waived. Since he will not be imprisoned, dealing with the s. 12 Charter violation argument is unnecessary.

However, Justice Marc M. Monnin provided a well-considered dissent from the majority decision. He agreed that the trial judge made a reversible error in determining a fit and proportionate sentence. He considered Chief’s circumstances with greater weight than the circumstances of the offence that required more emphasis on denunciation and deterrence.

However, this was not a case in which a reviewing court should overlook appellate deference. The trial judge listed what she deemed important considerations in determining a proper sentence, and it is not for the Court of Appeal to interfere.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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