Possession of a loaded prohibited or restricted firearm, Criminal negligence causing bodily harm, Pointing a firearm, Carrying a concealed weapon, Contravention of firearm storage regulations

R. v. Smith

  • Below the Crown's ask
  • No jail for a violent offence

Sentence and the Crown's position

Crown asked38 months in custody1
Judge imposedTwo years less a day conditional sentence (18 months house arrest, then curfew), then 12 months probation1
38 months less custody than the Crown asked

A conditional sentence is served in the community, usually under house arrest. It counts as no custody here.

What the law allows

Maximum14 years
Crown asked38 months in custody
Judge imposed2 years less a day conditional sentence
Defence asked2 years less a day conditional sentence
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 14% of the maximum. Read the section.

Araya Smith was found guilty after trial of criminal negligence causing bodily harm, pointing a firearm, possessing a loaded restricted or prohibited firearm, carrying a concealed weapon and a firearm storage offence, after a gun he handled in Dartmouth in 2020 fired and struck the victim. The Crown sought a global sentence in the range of 38 to 64 months of imprisonment; the defence sought a conditional sentence of two years less a day followed by probation. Judge Tax found that the 42-month aggregate sentence would be unduly long and harsh for a youthful first-time African Nova Scotian offender who had made significant rehabilitative progress, and imposed a conditional sentence of two years less a day, including 18 months of house arrest, followed by 12 months of probation.

In the judge's words

As a result, I find that, in taking that “final look” at the aggregate sentence, that the just and appropriate sentence which is proportionate to both the gravity of the offence and the moral blameworthiness of the offender, which would be either 36 or 42 months in a federal penitentiary, is unduly long and harsh and would amount to a crushing sentence for this youthful first-time African Nova Scotian offender.

1

The record

Prior convictions
0 prior convictions1
At the time of the offence
Not stated1
Defence asked for
2 years less a day conditional sentence1
Mandatory minimum
Found unconstitutional or not applied under a binding ruling1
Appeal
Not yet checked
Counsel
Crown: Robert Fetterly
Defence: Nicholas Fitch

Sources

  1. R. v. Smith, 2023 NSPC 65 Court decision, CanLII, October 20, 2023[4] At the outset, the Crown Attorney noted that the key difference in the positions of the parties is that the Crown recommends that the just and appropriate global sentence would, given the sentencing precedents referred to by him, result in a range of incarceration from 38 months to 64 months.[4] … He notes that Defence Counsel recommends a two-year less one-day conditional sentence order followed by lengthy period of probation[119] It is important to note that the offence of criminal negligence causing bodily harm contrary to section 221 of the Criminal Code has not been subject to a mandatory minimum punishment. The offence of possession of a prohibited or restricted firearm with ammunition, without a authorization or registration certificate for the firearm [s. 95(1) of the Code], had been subject to a minimum punishment for that offence, but it was struck down in R. v. Nur, supra.[1] Following a three-day trial, which included a voir dire in relation to a section 10(b) Charter of Rights and Freedoms Application, which was dismissed by the Court, Mr. Araya Smith was found guilty of five offences.[215] … for Mr. Smith who is very youthful offender who has no prior convictions.[219] As a result, I find that, in taking that “final look” at the aggregate sentence, that the just and appropriate sentence which is proportionate to both the gravity of the offence and the moral blameworthiness of the offender, which would be either 36 or 42 months in a federal penitentiary, is unduly long and harsh and would amount to a crushing sentence for this youthful first-time African Nova Scotian offender.[241] … I find that Mr. Smith’s just and appropriate sentence of two years less one day of imprisonment should be served in the community under the strict terms and conditions of a CSO. Following the conditional sentence order of imprisonment in the community, Mr. Smith shall be subject to a period of probation for 12 months.
  2. R. v. Smith, 2023 NSPC 65 Court decision, Courts of Nova Scotia

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