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| John L. Hill |
In a two-week period between Dec. 29, 2019, and Jan. 10, 2021, Laing’s GoPro camera captured images of two instances of a rifle being discharged from an automobile, one time being as the car radio heard on the video was counting down to midnight, New Year’s Eve. The car being driven was less than half a kilometre from residences. Other videos showed beer cans being shot at by others on direction of Laing at his home, close to where others resided. Shooters without Laing’s experience with firearms took part.
Judgments in the case do not disclose who complained but, in any event, police arrested Laing, searched his house, and seized the videos as evidence. He was arrested and held 316 days in pretrial custody. Worse, he was assaulted during his stay at the detention centre.
He came to trial in the provincial court of Nova Scotia before Justice Elizabeth Buckle with a written decision handed down on Feb. 18, 2021, (R. v. Laing 2021 NSPC 14). Crown prosecutor Kristyn Stevens impressed on the court that the risk of innocent people or property being damaged was inexcusably high even though no one was injured.
She argued that three counts of careless use of a firearm (s. 86(1) of the Criminal Code) and four counts of being present in a motor vehicle in which he knew a firearm was present (s. 94(1) of the Code) deserved a penitentiary term. Defence counsel Alan Ferrier pointed up Laing’s taking responsibility and show of remorse. A presentence report did not indicate serious criminogenic concerns and letters of support from the community spoke to Laing’s character.
The dilemma before Judge Buckle was assessing a fit sentence and then determining what, if any of the sentences for each count, should be served concurrently. On top of that, in considering the total sentence imposed, was it proportional to the harm done?
Taking into consideration the vastly different positions of opposing counsel and performing the balancing act required by the Code, Judge Buckle did an admirable job:
One year concurrent on 3 counts under s. 86(1); 1 year for the Dec. 29 offence under s. 94(1), concurrent, and 540 days on six counts (representing different days in January captured on video) all concurrent. Given enhanced credit for pretrial custody, Laing was to serve an additional 66 days, serve three years probation and a firearms prohibition.
The Crown, not satisfied, appealed the sentence. Appeal Court Justice Joel Fichaud, speaking for the court (Chief Justice Michael Wood and Justice Peter Bryson), found a flaw in the Buckle disposition (R. v. Laing 2022 NSCA 23). The trial judge failed to explain her rationale for concurrency.
Once that error was corrected, the Appeal Court devised a novel varied sentence: reduction of the sentences for 94(1) on three sentences (Jan. 1, 4 and 10) from 18 months to 12 months; ordering the year-long sentence for two offences (Dec. 29 and Jan. 1) be served concurrently but consecutive to other sentences and ordering the terms of the remaining sentences be served concurrently. In the end the cumulative term increased from 18 months to 24 months before remand credit. The service of additional time was stayed.
For anyone looking for a quick refresher course on principles of sentencing including when concurrent and consecutive terms are to be given and the principle of totality, this judgment is a lesson in itself. It recites the pertinent legal precedents and demonstrates how courts can be inventive in their application.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.
Photo credit / dickcraft ISTOCKPHOTO.COM
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