Possession of a loaded prohibited or restricted firearm

R. v. Kirby

  • On release at the time

Sentence and the Crown's position

Crown asked33 months in custody1
Judge imposed33 months jail less 945 days' pre-sentence credit (45 days left to serve); lifetime s. 109 firearms prohibition (joint submission)1

What the law allows

Maximum14 years
Crown asked33 months in custody
Judge imposed33 months in custody
Defence asked33 months in custody
For possession of a loaded prohibited or restricted firearm (CC 95(1)), the Criminal Code currently allows up to 14 years when the Crown proceeds by indictment, with no mandatory minimum. The sentence imposed is 19% of the maximum. Read the section.

Seamus Kirby pleaded guilty to possessing a loaded handgun, which he threw into a stream while fleeing police in May 2021. He was bound by a firearms prohibition and a probation order at the time and had 42 prior Criminal Code convictions. Justice Wilson accepted the joint submission of 33 months in jail, leaving 45 days to serve after credit for pre-sentence custody, and imposed a lifetime firearms prohibition.

In the judge's words

[11] Because this is a joint submission I must consider the Supreme Court of Canada's decision in Regina v. Anthony-Cook, 2016 SCC 43, and in that case Justice Moldaver said that the court should accept the joint submission unless the proposed sentence would bring the administration of justice into disrepute or alternatively it would be contrary to the public interest. I am satisfied that in this case the proposed sentence is within an acceptable range and therefore I am prepared to accede to the request for the sentence as proposed.

1

The record

Prior convictions
Not recorded
At the time of the offence
On probation1
Defence asked for
33 months in custody1
Appeal
Not yet checked
Counsel
Crown: A.W. Lerchs
Defence: M.A. Patterson

Sources

  1. R. v. Kirby, 2023 BCSC 1658 Court decision, CanLII, March 1, 2023[4] The joint submission for sentence is for 33 months of jail … A 33-month sentence equates to 990 days[4] The joint submission for sentence is for 33 months of jail … A 33-month sentence equates to 990 days[1] THE COURT: This is my decision with regard to sentence for Mr. Kirby who pleaded guilty to Count 1 of a five-count indictment. He pleaded guilty to possessing a firearm contrary to s. 95(1) of the Criminal Code.[6] In terms of aggravating circumstances, the first and most obvious one is the extensive criminal record that I have just mentioned. Additionally, Mr. Kirby was already subject to a 10-year firearms prohibition and he was also bound by a probation order that itself prohibited possession of a firearm.[11] Because this is a joint submission I must consider the Supreme Court of Canada's decision in Regina v. Anthony-Cook, 2016 SCC 43, and in that case Justice Moldaver said that the court should accept the joint submission unless the proposed sentence would bring the administration of justice into disrepute or alternatively it would be contrary to the public interest. I am satisfied that in this case the proposed sentence is within an acceptable range and therefore I am prepared to accede to the request for the sentence as proposed.[12] THE COURT: Mr. Kirby, I therefore sentence you to 33 months in jail. … In terms of enhanced credit at a day-and-a-half per day, the enhanced credit total is 945 days. A 33-month sentence equates to 990 days and as such there are 45 days remaining to serve for Mr. Kirby, so that is the sentence that I pronounce.
  2. R. v. Kirby, 2023 BCSC 1658 Court decision, Courts of British Columbia

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