R. v. Cox

R. v. Cox Court Supreme Court Date 2022-03-31 Citation 2022 NSSC 95 Docket Bridgewater Judge/Registrar/Adjudicator Rowe, Diane (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: R. v. Cox, 2022 NSSC 95 Date: 20220331 Docket: Bridgewater No. 501598 and 501647 Registry: Halifax Between: Her Majesty the Queen in the Right of the Province of Nova Scotia Plaintiff v. Kaz Henry Cox Defendant Judge: The Honourable Justice Diane Rowe Heard: March 7, 2022, in Bridgewater, Nova Scotia Final Written Submissions: March 10, 2022 Oral Decision: March 17, 2022 Counsel: Leonard MacKay, Federal Crown Rick Woodburn, Provincial Crown Kaz Cox, self-represented Defendant Orally by the Court: Charges [1] Mr. Kaz Cox was convicted on October 1st, 2021 on 14 of a 15 count indictment on the following offences: i) Section 5(2) of the Controlled Drugs and Substances Act SC 1996, c.19– possession of cocaine for the purpose of trafficking. ii) Section 5(2) of the Controlled Drugs and Substances Act SC 1996, c.19– possession of hydromorphone for the purpose of trafficking. iii) Section 91(3) of the Criminal Code RSC 1985, c.C-46 – possession of a prohibited weapon without holding a license. iv) Section 88(2) of the Criminal Code RSC 1985, c.C-46 – possession of a weapon for a dangerous purpose. v) Section 86(2) of the Criminal Code RSC 1985, c.C-46 – transporting of a loaded prohibited firearm contrary to Firearm Regulations. vi) Section 94(2) of the Criminal Code RSC 1985, c.C-46 – being an occupant of a motor vehicle in which he knew there was a firearm. vii) Section 86(1) of the Criminal Code RSC 1985, c.C-46 – careless transporting of a firearm. viii) Section 95(2) of the Criminal Code RSC 1985, c.C-46 – possession of a prohibited firearm with readily accessible ammunition. ix) Section 92(3)(a) of the Criminal Code RSC 1985, c.C-46 – possession of a firearm while knowingly unlicensed. x) Section 117.01(3) of the Criminal Code RSC 1985, c.C-46 – possession of a firearm while prohibited by a s. 109 Order. xi) Section 117.01(3) of the Criminal Code RSC 1985, c.C-46 – possession of ammunition while prohibited by a s. 109 Order. xii) Section 733.1(1) of the Criminal Code RSC 1985, c.C-46 – failure to comply with condition of Probation Order – to keep the peace and to be of good behaviour. xiii) Section 733.1(1) of the Criminal Code RSC 1985, c.C-46 – failure to comply with condition of Probation Order – to not possess a firearm. xiv) Section 733.1(1) of the Criminal Code RSC 1985, c.C-46 – failure to comply with condition of Probation Order – to not possess ammunition. Facts [2] On August 21, 2019, Mr. Cox was driving near Bridgewater. He was observed by Corporal Ted Munro, who was conducting investigative surveillance in the area. Corporal Munro saw that Mr. Cox was driving in an erratic manner and determined that there were signs consistent with impaired driving. [3] Constable Gordon Giffin was dispatched in a marked car to intercept Mr. Cox’s vehicle. After some time, Constable Giffin located Mr. Cox, who pulled his car to the side of the road. Constable Giffin administered a roadside screening device, and Mr. Cox blew a “warn”. However, Constable Giffin observed that Mr. Cox exhibited unusual speech, was lethargic and showed diminished motor skills to the extent that he continued to suspect impaired driving, possibly from the use of drugs. [4] Constable Giffin arrested Mr. Cox for breach of a term of his Probation Order, that of keeping the peace and being of good behaviour. Mr. Cox was alerted to his rights pursuant to the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c.11, and cautioned. Mr. Cox did not contact counsel. Constable Giffin then drove Mr. Cox to Bridgewater for a DRE evaluation, which Mr. Cox had given his consent to undergo. [5] While Mr. Cox was on his way to the Bridgewater Police Department for the evaluation, Corporal Munro and Corporal Jody Allison searched the vehicle, prior to its being removed from the scene by towing operator. Corporal Munro suspected that drug paraphernalia may be in the vehicle related to Mr. Cox’s impairment. [6] An opened case of beer was observable in the back seat of the car. When Constable Munro removed the beer case, a firearm was seen partially covered by a leather jacket. The gun was a prohibited weapon, as it was a modified shotgun, sawed off with an added grip. The sawed off shotgun was loaded with live ammunition. More ammunition was found in a sweatshirt, also located on the floor with the firearm. [7] A messenger bag was left in the vehicle that contained a significant amount of cash, with a digital scale with white residue. There was also a notebook located in the bag, with notations consistent with a drug debt “scoresheet”. Both the scale and small baggie found in the vehicle were tested positive for high purity cocaine. [8] Mr. Cox was kept at the Bridgewater Police station overnight and interviewed the following morning. After the interview, he was observed to have shoved baggies with white powder residue between the wall and the table in the interview room. This action was observed by police on video of the room. This included Corporal Munro, who then suspected that Mr. Cox had concealed drugs on his body. Corporal Munro advised the Burnside Correctional Centre of this, as Mr. Cox was removed to that facility on remand. [9] The Burnside Corrections protocol had Mr. Cox entered into a “dry cell” for a period of observation. The “dry cell” is intended to heighten security measures in relation to limiting contraband in the Corrections Centre, as furniture, bedding and toilet facilities are monitored and searched on a regular schedule. After days in the “dry cell”, Mr. Cox had a bowel movement and the cell was searched. A cellophane wrapped package of drugs was found in a paper bag in the cell by Corrections staff. This “prison pack” contained 8.4 grams of cocaine and 2.5 grams of hydromorphone. [10] An expert testified that, in his professional opinion as a police officer specializing in drug crimes in Nova Scotia, that the amount of drugs found, in conjunction with the “scoresheet”, the amount of cash, scale, and firearm were, in their totality, consistent with possession for the purposes of street level drug trafficking. Reports regarding the offender [11] The Court requested both a Pre-sentence Report and a Gladue Report, to assist in determining sentence. [12] On January 12th, 2022, a Probation Officer met with Mr. Cox in regard to the Pre-sentence Report. Mr. Cox stated he did not wish to have a Pre-sentence Report completed, as he had a Gladue factor report in preparation. [13] The Court has received the Gladue Report prepared for Mr. Cox, dated December 14, 2022, as prepared by the Native Council of Nova Scotia. [14] This report indicates that Mr. Cox’s family maintains an oral history concerning their ties with the Mi’kmaw of Nova Scotia, although the writers of the report state that a genealogy report did not show a link to this indigenous ancestry. As the experience of cultural dislocation and disavowal of indigeneity by previous ancestors has been recognized as one of the effects of colonialism, and there is strong internal consistency to Mr. Cox and his family’s memory of familial ties with the Mi’kmaw of the South Shore of Nova Scotia, it was determined by the report writers that it was appropriate to continue. [15] Mr. Cox’s personal history is of poverty and of family disruption. He was first brought into foster care as a young child. He recalls choosing to leave his home for his grandmother’s to avoid visitors who were drinking, or to avoid domestic violence. He has a history of conflict with the law beginning as a youth, which continued into his adulthood, then resulting in incarceration. [16] The Gladue Report writer notes that Mr. Cox is visibly bi-racial, with indigenous and black ancestry as part of the family oral history. It notes that the experience of persons with both black and indigenous ancestry was marked by barriers in being a part of either community, fully. The challenges of recognition with either community is a struggle, it notes. [17] Mr. Cox’s mental health is recognized as an ongoing concern for all of the persons interviewed for the report. He had suicidal ideation in the past, and struggles with addictions. As he commented, he is a daily drinker, pot smoker and frequent cocaine user. [18] Mr. Cox indicated that he feels that racism was a factor in him being over-policed, as he feels that “cops are targeting me” since his youth. [19] He has experienced significant loss recently, as one of his daughters died while he was remanded on this matter, and in relation to other charges, during his remand and on lockdown during the pandemic. [20] His family life is somewhat disrupted, as he is currently separated from his wife, who is parenting their surviving adult daughter in Halifax. He has another child with a different partner, who has a no contact order in place in relation to Mr. Cox. He maintains contact with this younger child by video chat. [21] Mr. Cox has sought out cultural supports in the past, and indicated he was interested in obtaining this, and talk therapy. His immediate family members are supportive. [22] The Gladue Report notes that Mr. Cox has completed his GED while incarcerated, and continues to show interest in training. He has completed a number of certificates in 2012, that did support a return to employment. [23] The Recommendations made in the report include that Mr. Cox seek appropriate culturally based counselling to address his mental health issues, specifically the Two Wolves Program. It recommends he enroll in substance abuse management programming, similar to that offered through the Northeast Nova Correctional facility. Further, it recommends that he obtain services and supports that may be available to him through both of the Mi’kmaw Native Friendship Centre and the Native Council of Nova Scotia. CRIMINAL RECORD [24] Mr. Cox has 54 prior criminal convictions, accumulated over the past 25 years and more. [25] There is a gap between 2009 and 2013, but Mr. Cox received a three-year penitentiary sentence in August 2009. There is another gap between 2013 and 2016, but Mr. Cox received a 16-month prison sentence in June 2013. [26] Finally, Mr. Cox has no convictions since February 2019, when he received a short jail sentence for an assault causing bodily harm which occurred in November 2017. He has been remanded on this set of charges since August 2019, as well as others since then. [27] Mr. Cox does not have any prior convictions for firearms-related offences. His record does include five prior convictions for assaults and threats. These include an 18-month jail sentence for common assault and assault causing bodily harm in 2008. [28] The criminal record includes one count of possession of cocaine for the purpose of trafficking for which Mr. Cox received a 3-year jail sentence in 2009, and another count of possession of cannabis for the purpose of trafficking and one count of cultivation for which Mr. Cox received another 16 months jail in 2013. There are an additional 8 counts of simple possession under the Controlled Drugs and Substances Act SC 1996, c.19 and its predecessor, the Narcotic Control Act, between 1999 and 2017 resulting in large fines or short periods of custody. [29] The balance of the criminal record is largely made up of breaches and driving offences. [30] Mr. Cox was bound by three separate s. 109 Criminal Code firearm prohibition orders at the time of the current offences, as well as another probation order which prohibited the possession of firearms. [31] Mr. Cox does not dispute the content of his record, but draws the Court’s attention to the lack of any prior conviction for firearms convictions. He also notes that the Crown concedes that over half of the convictions relate to breaches of conditions with 10 counts for driving offences, spread over 25 years, rather than numerous serious offences. Law [32] As was noted, succinctly, by Justice Wright in the R v Pottie 2003 NSSC 263 decision at para 9: [9] The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. They are lengthy provisions and I am simply going to incorporate them by reference for purposes of my oral decision this morning. Suffice it to say, in its briefest terms, that the stated objectives of denunciation, deterrence, separation of offenders from society where necessary, rehabilitation, and the promotion of a sense of responsibility in offenders and acknowledgment by them of the harm they caused, are ultimately designed to protect the public. In keeping with that is the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [33] There are several areas of the law to consider and apply in arriving at an appropriate sentence for Mr. Cox, in all the circumstances of the case. To begin with the Court will consider the Criminal Code s. 95 offence for possession of a loaded, restricted firearm. [34] I will note that the Nova Scotia Court of Appeal held at paragraph 32 in NS (Community Services v J.P 2021 NSCA 45 that: [32] A judge may conduct research (IWA v. Consolidated-Bathurst Packaging Ltd., 1990 CanLII 132 (SCC), [1990] 1 S.C.R. 282, ¶32 per Sopinka J. dissenting in result). However, it is an error for a judge to do so if it changes the nature of the issues under review, thereby failing to afford an opportunity to the parties to address those issues. [35] In my research concerning the calculation of pre-sentence credit, the decision of R v Hatt 2018 NSCA (“2018 Hatt”) was read and considered, as it shares some factual similarity with the matter before me today. In 2018 Hatt, the Nova Scotia Court of Appeal considered the sentence for an offender with a prior related record for Controlled Drugs and Substances Act (CDSA) and firearms offences, the “large amount of marihuana” involved, and the presence of the loaded shotgun. As Derrick, J.A. noted in regard to the facts and the disposition: …the offender’s prior related record was somewhat dated, the presence of the shotgun, and the unavailability of a conditional sentence made it inevitable that he would receive a sentence of incarceration for the CDSA and firearms convictions. [36] However, there are some significant differences with this case, as well, as Derrick JA noted mere possession of the shotgun in the circumstances of that case did not constitute “use” of the firearm, citing R. v. Steele, 2007 SCC 36, at paras. 28 and 32. In this case, though, I have accepted the evidence of the expert police witness in regard to drug trafficking, and note that the possession of the prohibited weapon was as a “tool of the trade”, and incidental to a criminal enterprise, and therefore a “use” contrary to the provisions of the Act. [37] This determination is more in keeping with the jurisprudence in R. v. Nur, 2015 SCC 15 canvassed in the Crown’s written submission, relevant to firearm offense sentencing. [38] The Crown has submitted that Mr. Cox’s history shows an ongoing pursuit of a criminal lifestyle, evidenced by the continuous accumulation of convictions. This, and the objective seriousness of the current offences, place his conduct at the “truly criminal” end of the spectrum discussed by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15 at para. 82, and the long line of jurisprudence which has followed. [39] In the words of Doherty J.A. (cited in Nur), Mr. Cox embodies “the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade…and poses a real and immediate danger to the public”. [40] Mr. Cox disputes this characterization, as he notes his lengthy criminal record does not include offences he deems as “serious”. With respect, two convictions for drug trafficking do constitute serious offences. That this is now coupled with the possession of a loaded, prohibited firearm is a disturbing new development in Mr. Cox’s history of conflict with the law for drug related offences. Its presence in these circumstances would be in keeping with its use as “a tool of his or her criminal trade… that poses a real and immediate danger to the public”. [41] In making this determination, I have considered Justice Rosinski’s reasons in R. v. Steed, 2021 NSSC 71, in which he concluded that the determination of “truly criminal conduct” is not dependent upon the firearm being used incidental to another criminal offence, at para. 122: [A]n offender’s ultimate placement on the spectrum is sensitive not only to the circumstances of the offence for which he is to be sentenced, but also to his prior criminal record – which can also be used to assess how close to the “true crime” end of the spectrum he should be placed. [42] Further, Rosinski, J. sets out a series of starting points to consider in sentencing at para at para.151: 1 - first-time s. 95 offenders who have unlawful possession of loaded prohibited/restricted firearms “as a tool of their trade” (i.e. for an unlawful purpose such as drug-trafficking) - 3 to 5 years. 2 - first-time s. 95 offenders who have simple unlawful possession of loaded prohibited/restricted firearms (including offenders who have lawful possession thereof, but engage in “truly criminal conduct” by unlawfully handling or using the firearms – i.e. for an unlawful purpose) - 2 years less one day to 3 years. 3 - first-time s.95 offenders who have lawful possession of loaded prohibited/restricted firearms and commit licensing -type offences- up to two years less a day imprisonment. 4 - For first-time recidivist s.95 offenders- 5 years (usually plus 12 months consecutive for s. 117.01 CC offence) to 8 years. [43] As Mr. Cox is a first time s. 95 offender, with unlawful possession of a loaded, restricted firearm as part of the “tools of his trade” in drug trafficking. As such, I find that the lower end of the range proposed by Justice Rosinski in Steed is applicable. Section 117.01(1) x 2 [44] The Crown submits that a sentence of one year, consecutive, for each breach of s. 117.01 (1) of the Criminal Code is appropriate on each count (but concurrent to each other). [45] It relies on the jurisprudence R. v. Chan, 2011 NSSC 471, at para. 40. The court held in that case the appropriate sentencing range for breaching a firearm prohibition order is one year consecutive: The remaining gun crime to be dealt with is Mr. Chan’s conviction for the s.117.01(1) offence. The case authorities generally suggest that the appropriate sentence for breaching such a weapons prohibition order is in the range of one year imprisonment and that it should be made consecutive to reflect the seriousness of flouting court orders aimed at controlling firearms (see, for example, R v Sadat, 2011 ONSC 3303 and R v Lambert, 2011 ONSC 3906). Accordingly, I impose a sentence of one year imprisonment for the 117.01(1) offence, to be served consecutively to the s.244 sentence. [46] In Steed, Roskinski, J adopted the same sentencing range and imposed a 12-month consecutive sentence. Further, in R v Graham, 2018 ONSC 6817 (CanLII) a 12-month consecutive sentence was imposed, with the court noting, at para. 41: As explained above, I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning. See: R v. Manning [2007] O.J. No. 1205 (S.C.J.); R v Ellis [2013] O.J. No. 2409 (S.C.J.) aff’d, 2016 ONCA 598; R v Carrol, supra. [47] The Crown submits that the appropriate sentence for Mr. Cox’s convictions for two counts of 117.01 is 12 months consecutive on each count (but concurrent to each other). [48] Mr. Cox agrees that each count should be sentenced concurrently, but offers that the appropriate amount should be 6 months. He does so without reference to any authority that would support this difference. Section 5(2) of the Controlled Drugs and Substances Act [49] The Crown submits that the appellate jurisprudence in Nova Scotia would indicate that a significant sentence of incarceration is appropriate in the circumstances of trafficking, specifically trafficking in the substances of cocaine and hydromorphone. [50] As observed by Justice Scanlan in R. v. Oickle, 2015 NSCA 87 at para. 49, whether or not an offender is selling to feed an addiction or purely for profit does not alter the devastating societal damage done by such crime. The need to emphasize denunciation and deterrence with significant periods of incarceration applies even where small amounts of cocaine are involved and the offender has no prior criminal record. (R. v. Byers, 1989 CanLII 200 (NS CA)) [51] In Oickle, at para. 45 and 48, the Nova Scotia Court of Appeal reaffirmed that trafficking cocaine will “consistently attract sentences of imprisonment in the range of two years even for first time offenders”. In R. v. Chase, the Court of Appeal reiterated that “nothing has changed this Court’s repeated and consistent warning that deterrence and denunciation will continue to be the primary objectives” and that cocaine trafficking “will normally attract a federal prison term.” [52] Mr. Cox is not a first offender for drug trafficking. He has been convicted twice before for trafficking-related offences. [53] The Crown submits that an appropriate sentence here should be a step up from the previous federal sentence of three years’ incarceration, with the Crown recommending 3 ½ years consecutive on each count (but concurrent to each other). [54] Mr. Cox acknowledges that incarceration is appropriate in the circumstances, though submits that given the large gap between the prior convictions that a more appropriate sentence should be 21 months, consecutive but served concurrent. He notes the difficulty in accessing case law while he is incarcerated but indicates he has some familiarity with the ranges as being inclusive of community based supervision ranging to federal prison sentence. [55] Mr. Cox may not be familiar with the sentencing principles that have informed the jurisprudence in this Province that he encountered concerning the lower end of the spectrum for sentencing for this offence, but he is correct that in these circumstances, on a third conviction for drug trafficking, that a term of incarceration is appropriate. [56] I find that 2½ years on the first count, with the second to be concurrent, is an appropriate sentence. This is made upon a consideration of all of Mr. Cox’s circumstances, that include a reduction in respect to the enumerated Gladue factors which is detailed further in the decision. This is appropriate when paired with his attempts to rehabilitate, shown by efforts to obtain education and employment, with a gap in reoffending. Pre-Sentence Credit [57] The Court notes that neither the Crown or the offender had made pre-hearing submissions concerning pre-sentence credit while Mr. Cox was on remand. I asked both the Crown and Mr. Cox to speak to the issue concerning possible calculations at the hearing, and then requested further submissions from the Crown and Mr. Cox, if he chose to respond to the Crown’s submissions. Mr. Cox did not respond with additional written submissions to the Court prior to today’s sentencing decision. He was provided with the Crown’s additional submission, with caselaw, on this point and on the issue of enhanced credit. [58] Mr. Cox had been on remand for the 15 charges in the indictment before this Court, starting on August 21, 2019. However while in remand at the Burnside Correctional Centre he was subsequently charged with additional counts in other matters on November 15, 2019, and then again on January 9, 2020. Mr. Cox was on concurrent remand in relation to all of these indictments. [59] The Crown acknowledged that Mr. Cox was able to request pre-sentence credit for the time already spent in remand, and noted a 1.5 to 1 day ratio was appropriate for such a calculation. It indicated a “one and done” approach, in which the use of the credit in this matter would preclude its consideration in other matters in which Mr. Cox was remanded. [60] In a related aspect of the oral argument, Mr. Cox requested that the Court consider an increase in the calculation of time spent in remand beyond that of 1.5 days for each day in remand, as an enhanced credit, to reflect that it was spent during periods of lockdown during the COVID 19 pandemic. There was no supporting evidence offered to support this request. In keeping with the decision in R v GPW 2021 NSSC 56, the Court would require evidence of harsh conditions caused by the pandemic specifically, and notes the high threshold cited within that decision. I will not enter into a consideration of the request, accordingly, and will remain with a calculation of time at the 1.5 for 1 day in remand. [61] The Crown and Mr. Cox were unsure of whether Mr. Cox was able to claim all of the pre-sentence remand credit to the date of sentencing for this set of charges but forego a claim in relation to sentencing for any of the subsequent matters he was remanded with. In the alternative, could he claim just that portion of the time in remand related only to remand on this indictment, with the remainder of the time to be used in other proceedings. Further, in another alternative, could he use all of the time in any of the separate proceedings in relation to sentencing. [62] I will note that the law is unclear on this point, and requires consideration. There are general indications in the jurisprudence that may give some assistance, but are not determinative or declarative to the degree stated by the Crown in oral submission. [63] Subsections 719(3) and (3.1) allow a court to reduce an offender’s sentence for time spent in pre-sentence custody. Subsection 719(3) has been interpreted to mean that the words “convicted of an offence” and “as a result of the offence” refer to the same offence: R. v. Hatt, 2017 NSCA 36 [“2017 Hatt”]. [64] In the 2017 Hatt, decision the Nova Scotia Court of Appeal stated: 3 Section 719(3) of the Criminal Code authorizes the Court to take into account pre-sentence custody for sentencing purposes: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [Emphasis added] 4 The emphasised language is what is in issue in this appeal. [. . .] 6 In R. v. Wilson, 2008 ONCA 510, Justice Rosenberg quoted from the Supreme Court in describing the relationship between 719(3) and pre-trial custody: [41] In R. v. Wust (2000), 2000 SCC 18 (CanLII), 143 C.C.C. (3d) 129 (S.C.C.) at para. 41, Arbour J. explained the purpose of giving credit for pre-sentence custody: Therefore, while pre-trial detention is not intended as punishment when it is imposed, it is, in effect, deemed part of the punishment following the offender's conviction, by the operation of s. 719(3) [of the Criminal Code]. [42] The time the appellant spent serving his sentence for importing was not in any sense part of the "punishment" for the robbery offences; that sentence was punishment for the importing offence. To now give the appellant credit for time spent serving a sentence for another offence would distort the sentencing regime. [Emphasis was added by Bryson JA in original] [65] It appears then that an application of the principle in the 2017 Hatt decision is that an offender cannot be granted credit for pre-sentence custody for time spent on remand on one offence when they are being sentenced for a different offence for which they did not spend time on remand. In 2017 Hatt, the offender was charged with nine offences, but was only found to have been on remand for two of those offences by the trial judge[1]. The trial judge thus only credited time spent in pre-trial custody against the sentence on those two offences[2]. The Nova Scotia Court of Appeal agreed with the trial judge’s decision[3]. [66] R v Barnett, 2017 ONCA 897 [“Barnett”] the Court provided a test for when an offender may receive credit for time in pre-sentence custody for the offence(s) that the offender is being sentenced for. The test is whether there is a “sufficient link” between the pre-sentence detention for which credit is being sought and the offence(s) for which the offender is being sentenced[4]. [67] Barnett is endorsed in two Nova Scotia decisions. It is applied in R. v. Perry, 2018 NSSC 16 in which Wood, J. (as he was then) stated: 93 The Crown says Mr. Perry should not get any credit for the fifty-nine days because that custody was not "as a result of the offence" as that term is used in s. 719(3) of the Code. The Ontario Court of Appeal in the recent decision of R. v. Barnett, 2017 ONCA 897, noted that this phrase should be given broad interpretation and could apply to time spent on remand for other charges. The court described its rationale as follows […] 94 I am satisfied that Mr. Perry's remand time as a result of the alleged breach of conditions is sufficiently connected to the original charges that he should get credit for the entire four hundred and fifteen days spent in custody. I need to consider whether to give enhanced credit of one and one half days per day of remand. This is often done to reflect the fact that such time is not part of the parole calculation and that remand time is often more difficult and does not include much in terms of programing and other services. [emphasis mine] [68] Note as well that Wood, J., as emphasized above, uses the same language as the test from Barnett. Barnett was also tacitly endorsed in in R v Murphy, 2019 NSSC 105 in which Rosinski, J. stated: [Footnote 11 to para 27] While his counsel notes that he was in custody for a further 3.3 months on other charges during his pending trial of this matter, he concedes at p. 14 of his brief that such "dead time" cannot formally be used to reduce his sentence -- in these circumstances, I agree: R. v. Barnett, 2017 ONCA 897, at paras. 26 -- 39 [69] In conclusion on this point, as Mr. Cox indicated in his oral submission he elects to use the pre-sentence credit time on remand incurred in relation to this matter to reduce his sentence on a 1.5 to 1 day basis. It may be open to Mr. Cox to argue that the entirety of the time spent in remand on this, and any other charges, may be used in the calculation of pre-sentence credit in those other matters, however it appears on the jurisprudence on this point that the Crown’s submission of a “ common sense position” that such time cannot be double counted may prevail. [70] The Crown’s calculation of pre-sentence credit for Mr. Cox’s remand on his initial arrest from August 21, 2019 to November 15, 2019 on just this set of charges results in 86 days, or 129 days at 1.5 to 1 day remand credit. Gladue [71] The Court must also consider the application of R. v. Gladue [1999] 1SCR 688 factors in relation to Mr. Cox’s sentencing. [72] Justice Rosinski’s analysis of the law in R. v. Denny 2016 NSSC 76 at paragraphs 64 to 67 were of assistance to the Court. As Rosinksi, J. wrote: [64] Since July 23, 2015, the subsection [referring to s. 718.2 (e) of the CCC reads: All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [65] In R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, the Supreme Court of Canada set out the principles that should guide courts in relation to the application of the then extant s. 718.2(e). More recently, in R. v. Ipeelee, 2012 SCC 13 (at paras. 56 – 87), the Supreme Court revisited and reformulated those principles, particularly as applicable in the context of aboriginal offenders who were subject to long-term offender supervision orders. [66] The majority opinion made the following observations: … s. 718.2(e) of the Code is a remedial provision designed to ameliorate the serious problem of overrepresentation of aboriginal people in Canadian prisons, and to encourage sentencing judges to have recourse to a restorative approach to sentencing… [It] directs sentencing judges to pay particular attention to the circumstances of aboriginal offenders because those circumstances are unique and different from those of non-aboriginal offenders… When sentencing an aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection... Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people generally, but additional case specific information will have to come from counsel and from the presentence report…. … to be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, high rates of substance abuse and suicide, and of course higher levels of incarceration for aboriginal peoples. These matters, on their own, and do not necessarily justify a different sentence for aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case specific information presented by counsel.… In current practice, it appears the case specific information is often brought before the court by way of a Gladue Report, which is a form of presentence report tailored to the specific circumstances of aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at the sentencing hearing for an aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2(e) of the Criminal Code.” – Paras. 59 – 60. … Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence. … First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness… The second set of circumstances – the types of sanctions which may be appropriate – bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself.… s. 718.2(e) does not create a race-based discount on sentencing. – Paras. 72-75. [emphasis added] [67] Furthermore, the court reiterated that it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. Section 718.2(e) does not logically require such a connection: Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence. That is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence. (para. 83) [73] In regards to the Gladue factors, Mr. Cox has experienced systemic patterns of poverty, family violence, and criminal institutionalization, over the course of a lifetime. Mr. Cox is an intelligent and capable person, who has shown he has the ability to learn and gain employment outside of criminal enterprise. On a review of his prior criminal record, it would appear that he has also engaged in a pattern of conflict with the law that is persistent, whether fueled by addictions, opportunity, or impulse control difficulty. [74] In keeping with Ipeelee, I do find that Mr. Cox has come before the Court on these charges as part of this unfortunate ongoing pattern, and while I am informed that he does so in the context of both systemic and background factors as a racialized person, I am not satisfied that these factors play a part in mitigating his culpability for these offences. [75] Mr. Cox was convicted by a Court for prior offences, and had knowledge of the prohibition orders issued on the sentence. In fact, his prior sentence also made reference to the Two Wolves Program for Mr. Cox to access in support of the offender’s rehabilitation measures. [76] However, he did proceed to make a series of conscious decisions in August of 2019 that resulted in his possession of a prohibited weapon, loaded with ammunition, and to have drugs on his person, with the materials for street level drug trafficking in his vehicle. The choices were made despite more positive aspects of Mr. Cox’s circumstances at the time of the offence, as referenced in his own brief, including that he was employed and, when he was arrested, was on his way to pick up one of his daughters. [77] However, as noted above, I found that a sentence of 2½ years was appropriate for the CDSA charges on an application of the Gladue factors. Mr. Cox continues to struggle with substance dependency issues, employment and educational barriers, and mental health challenges. The substance use and abuse have a logical link to the factors set out in the Gladue Report. [78] Further, in recognition of these factors I consider that Mr. Cox’s sentence in relation to both s. 95 and s. 117. 01(3) of the Criminal Code should remain at three years and one year, respectively. The possession of a dangerous weapon used in relation to drag trafficking does not have such a linkage, in keeping with the commentary in R. v. Denny, and R. v. Ipeelee. The presence of the weapon in the context of drug trafficking constitutes a significant threat to the broader community, and I accept the Crown’s submission on sentence as in keeping with the principles of sentence addressing deterrence and denunciation. [79] However, in regard to the breaches of existing Orders, captured in the convictions for charges pursuant to section 733.1, I do feel reduction is warranted. [80] Further, and in regard to considering the second part of the test in Ipeelee, I find that a consideration of the Gladue factors for Mr. Cox do result in an order on the type of sentence that is appropriate for Mr. Cox, specifically. [81] I find that culturally appropriate mental health counselling continues to be a useful, and potentially powerful, support for Mr. Cox’s rehabilitation efforts. Mr. Cox has also alluded to this, as he has requested that any period of incarceration be in a federal institution, as his own experience of available programs and services indicate that he may be better able to access these supports in a federal setting. Crown Submission [82] The Crown is seeking a global sentence of seven (7) years custody in a Federal Penitentiary. Their initial submission on sentencing would have resulted in a 10 year sentence, which it conceded would not be consistent with the principles of proportionality and totality. [83] Section 718.2(c) of the Criminal Code directs a sentencing court to consider totality where consecutive sentences are imposed, as is being suggested by the Crown here. As noted in R. v. Tamoikin, 2020 NSCA 43, at para. 65: The principle ensures the aggregate of consecutive sentences do not exceed the overall culpability of the offender. It is a means of maintaining the principle of proportionality (see R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 42). [84] The submission of seven years, on a global basis, with some suggestions on calculation of sentence was offered to the Court to reflect an adjustment for these principles, and the principle of restraint that is inherent in the consideration of Gladue factors in sentencing. [85] Ancillary Orders were also sought by the Crown, specifically: an Order of Forfeiture of all items seized; a Section 109 prohibition order for life; and a DNA Sample order. Cox Submission [86] Mr. Cox is seeking a global sentence of 3.5 years, arriving at similar calculations in regard to the consecutive and concurrent sentencing proposed by the Crown in its submissions. The lower amount is reflective in Mr. Cox’s submission with the consideration of totality and the principle of restraint concerning aboriginal offenders. [87] Mr. Cox is an unrepresented person, who was very engaged in his own defence. I will note that he has included mitigating factors in his submission at various points. These include maintaining strong familial ties, an ongoing commitment to educate himself in the limited circumstances while on remand, steps to employment and efforts to address mental health issues in a healthy manner. [88] He does not address aggravating aspects of the offence, that include the breach of existing conditions concerning possession of a weapon, possession of a restricted firearm with ammunition or of drugs found to be in his possession. [89] Mr. Cox did not address the issue of ancillary orders in his written submission to the Court, or in oral argument. He was provided with a copy of drafts for his consideration by the Crown, at the Court’s request. It was made clear to Mr. Cox that the Court would consider any additional written submissions on the sentencing prior to today’s sentence being made, but no further submissions were received. Sentence [90] Both Crown and the offender are in agreement that a term of incarceration is warranted. They differ primarily in regard to content, and calculation. [91] I will note that pursuant to the principles set out by the Supreme Court of Canada in R. v. Kienapple [1975] 1 S.C.R. 729 that some of the charges in the indictment are stayed as elements of the offence are proven for more than one offence from the same facts. These three charges are in relation to the possession and transport of the unlicensed, prohibited firearm. [92] Mr. Cox, may I ask you to please stand. You were found guilty of charges in the indictment concerning the trafficking of prohibited substances under the Controlled Drugs and Substances Act and various offences pursuant to the Criminal Code of Canada for breaches of conditions, the possession of a prohibited firearm and its transport. [93] I have considered the submission of both the Crown and the defence in this matter and impose the following sentence, for the reasons set out before orally. [94] Three of the counts in the indictment will be stayed, on the basis of the principles set out by the Supreme Court of Canada in R. v. Kienapple . [95] I grant an Order for Mr. Cox to be sentenced as follows: i) Section 5(2) of the Controlled Drugs and Substances Act – possession of cocaine for the purpose of trafficking – 2 ½ years consecutive. ii) Section 5(2) of the Controlled Drugs and Substances Act – possession of hydromorphone for the purpose of trafficking – 2 ½ years concurrent. iii) Section 91(3) of the Criminal Code – possession of a prohibited weapon without holding a license – stayed per Kienapple (see s. 92 conviction). iv) Section 88(2) of the Criminal Code – possession of a weapon for a dangerous purpose – 1 year concurrent. v) Section 86(2) of the Criminal Code – transporting of a loaded prohibited firearm contrary to Firearm Regulations – stayed per Kienapple (see s. 94 conviction) vi) Section 94(2) of the Criminal Code – being an occupant of a motor vehicle in which he knew there was a firearm – 1 year concurrent. vii) Section 86(1) of the Criminal Code – careless transporting of a firearm – stayed per Kienapple (see s. 94 conviction) viii) Section 95(2) of the Criminal Code – possession of a prohibited firearm with readily accessible ammunition – 3 years consecutive. ix) Section 92(3)(a) of the Criminal Code – possession of a firearm while knowingly unlicensed – 1 year concurrent. x) Section 117.01(3) of the Criminal Code – possession of a firearm while prohibited by a s. 109 Order – 1 year consecutive. xi) Section 117.01(3) of the Criminal Code – possession of ammunition while prohibited by a s. 109 Order – 1 year concurrent. xii) Section 733.1(1) of the Criminal Code – failure to comply with condition of Probation Order – keep the peace and to be of good behaviour – 3 months concurrent. xiii) Section 733.1(1) of the Criminal Code – failure to comply with condition of Probation Order – not possess firearm – 3 months concurrent. xiv) Section 733.1(1) of the Criminal Code – failure to comply with condition of Probation Order – not possess ammunition – 3 months concurrent. [96] The section 733.1(1) are adjusted. I note that the 3 months concurrent is a deviation from the 6 months concurrent put forward by the Crown and has been adjusted in keeping with the principles in Gladue. [97] The total amount then is 6 years and 6 months, subject to pre-sentence credit. [98] The Court also applies the calculation of pre-sentence credit on Mr. Cox’s remand in relation to this set of charges in the indictment before me, with a result of 86 days, or 129 days at 1.5 to 1 day remand credit against sentence. This results, by my calculation 6 years, 2 months and 9 days. [99] This sentence is to be served in a federal corrections facility, and Mr. Cox is to have access to culturally appropriate mental health and personal counselling for addictions treatment. [100] The following ancillary orders are issued in regard to Mr. Cox, specifically: a) An Order of Forfeiture of all items seized; b) A Section 109 Prohibition Order for life; c) A DNA Sample Order. [101] The Publication Ban in effect in regard to the Preliminary Inquiry will be of no further force and effect as the matter will have been concluded fully upon this sentencing. [102] This concludes the decision on sentence in this matter. Rowe, J. [1] Hatt at para 2 [2] Hatt at paras 5 [3] Hatt at paras 27 [4] Barnett, 2017 ONCA 897 at para 27