Lifetime weapons prohibition upheld as part of the sentence for breaking and entering.
1.0 — PREFACE
This issue reviews recent cases that have considered the imposition of weapons prohibition under sections 109 and 110.
2.0 — THE CASES REVIEWED IN THIS BULLETIN
(i) R. v. Mills, 2016 CarswellOnt 8003 (Ont. C.A.)
2.1 — MILLS
Bruce Mills pleaded guilty to two counts of break and enter. The first incident related to his attendance at a three-storey duplex in Toronto. He first rang the doorbell of the duplex and then smashed a pane of glass and reached in to open the door. Once inside he approached the door of one of the units and knocked. He heard someone inside respond and he fled.
The second incident related to Mills’ attendance at a duplex. He knocked on the outer door and then smashed a glass pane to allow access to the lock on the inside. He unlocked the door and then knocked on one of the inner doors - someone answered and he fled.
The third incident related to Mills’ attendance at a home where he knocked on the front door. The homeowner observed him through a window, but there was no indication that he noticed the homeowner inside. Mills then went around to the backyard and the homeowner went to the basement to keep watch on Mills. The homeowner then heard banging on a window and called 911. When the police arrived they arrested Mills. He had a crowbar and exacto knife in his possession.
Mills ultimately pleaded guilty to possession of stolen property, attempted break and enter, and break and enter in relation to these incidents. He received a global sentence of 42 months. He also received a lifetime weapons prohibition under section 109(3) of the Code. He appealed.
The sole issue on appeal was the imposition of the lifetime weapons prohibition. The Court of Appeal noted that the sentencing goal of a weapons prohibition is protection of the public [para 17]: see R. v. Wiles, 2005 CarswellNS 542 (S.C.C.) at para 9. The court noted that this focus impacts on the interpretation of “violence against a person was . . . threatened” — part of the statutory requirements of section 109. In the present case, the victims expressed through their victim impact statements that the offence impacted them negatively, they were fearful, and Mills admitted he was aware that his actions could have this impact. These two factors provided a sufficient basis for the sentencing judge to conclude that there was an “implied threat of violence” to justify the weapons prohibition.
Mills is a helpful decision that illustrates a principled approach to sentencing. The imposition of the weapons prohibition should not be driven by a technical and narrow interpretation of “violence threatened” but rather should focus on the purpose of the provision and the nature of the offence. R. v. Simpson, 1994 CarswellOnt 7347 (Ont. Gen. Div.) (a case cited by the court) is a helpful example to illustrate the point. In that case the offence was conspiracy to commit robbery. No actual victim was threatened or realized. There was no robbery, violence or actual attempted violence. Nonetheless, the court held that violence is inherent in robbery and thus there was an implied threat. This approach is also consistent with R. v. Samery, 2007 CarswellOnt 5957 (Ont. C.A.) an earlier decision of the Court of Appeal where despite a lack of actual threats or violence the court accepted the inherent and implied threats involved in the conduct of the accused involving contact with his wife in breach of recognizance conditions.