NOVA SCOTIA COURT OF APPEAL Citation: R. v. Skinner, 2016 NSCA 54

Date: 20160623 Docket: CAC 440264

Registry: Halifax

Between: Her Majesty the Queen

Appellant v.

Shaquille David Skinner Respondent

Judge: The Honourable Mr. Justice Jamie W.S. Saunders

Appeal Heard: February 9, 2016, in Halifax, Nova Scotia

Subject: Sentencing. Gun Violence. Standard of Review. Moral Culpability. Consecutive versus Concurrent Sentences. Proportionality. Totality. Deterrence. Rehabilitation.

Summary: Following a brazen noon hour shooting in a Halifax neighbourhood, Mr. Skinner was sentenced to an “aggregated sentence” of eight years which the judge then reduced to 5.5 years after applying the totality principle. The Crown appealed saying the sentence failed to account for the shooter’s blameworthiness; under-emphasized the gravity of the offences, especially in light of his lengthy criminal record,while over-emphasizing the prospects of rehabilitation; minimized the risk his actions posed to others; and did little todenounce the plague of gun violence on our city streets.

Held: Appeal allowed. After deciding that the sentence she imposed for offences committed on the day of the shooting would be treated as concurrent to an earlier sentence for offences committed the next day when the shooter was arrested, the judge erred in then applying the totality principle as a basis

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for deciding “to arbitrarily reduce” his sentence by 2½ years. Such an approach was prohibited by s. 718.2(c) of the Criminal Code. In allowing the appeal the Court increased the sentence that the judge ought to have imposed, but for her error. The Court went on to explain how long-established principles governing the standard of review will influence and constrain its authority, whenever it is called upon to consider the merits of cases on appeal.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 21 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Skinner, 2016 NSCA 54

Date: 20160623 Docket: CAC 440264

Registry: Halifax

Between: Her Majesty the Queen

Appellant v.

Shaquille David Skinner Respondent

Judges: Beveridge, Saunders and Hamilton, JJ.A.

Appeal Heard: February 9, 2016, in Halifax, Nova Scotia

Held: Appeal allowed, in part per reasons for judgment of Saunders, J.A.; Beveridge and Hamilton, JJ.A. concurring.

Counsel: Mark Scott, Q.C., for the appellant Trevor K.F. McGuigan, for the respondent

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Reasons for judgment:

[1] At 11 o’clock in the morning on Tuesday, June 25, 2013, Shaquille David Skinner fired off six rounds from his .32 calibre semi-automatic pistol at a car occupied by three individuals, which was parked in front of a convenience store in the Hydrostone area of the city’s North End. Six shell casings were recovered from the scene and five bullets were found lodged in the driver’s door of the vehicle targeted by the shooter. At the time of this brazen shooting there were many people enjoying the outdoors and going about their business in this popular residential neighbourhood. Miraculously no one was killed.

[2] The next day, June 26, Mr. Skinner was pulled over by police. A loaded .32 calibre Colt pistol wrapped in a bandana was found tucked in the waistband of his pants. Ballistic testing confirmed that the five bullets extracted from the automobile and all six shell casings recovered from the scene had been fired from that gun.

[3] Mr. Skinner pleaded guilty to various charges arising from his conduct on both June 25 and June 26. He came before Nova Scotia Provincial Court Judge Anne S. Derrick for sentencing on the offences committed on June 25, and a different judge for the offences committed on June 26. To complicate matters even further, sentencing for the June 26 offences was dealt with approximately 18 months before sentencing on the June 25 offences. The juxtaposition of the June incidents and the connection between the offences for which he stood convicted, obliged Judge Derrick to address a host of issues including consecutive versus concurrent sentences; culpability; proportionality; totality; and rehabilitation. Judge Derrick imposed an aggregated sentence of eight years which she reduced to 5.5 years. It is that sentence which is the subject of the Crown appeal in this case.

[4] The Crown says Judge Derrick’s decision is marred by a series of significant legal errors which led to an unfit sentence. It asks us to vary the sentence by increasing Mr. Skinner’s term of imprisonment so as to properly account for his blameworthiness; the gravity of the offences for which he was convicted (especially in light of his lengthy criminal record); the hazardous risk his actions posed to others; and the need to express this Court’s clear denunciation of gun violence on our city streets.

[5] For the reasons that follow I would allow the Crown’s appeal and vary Mr. Skinner’s sentence accordingly. Given the sequence in which Mr. Skinner’s

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separate sentencings for the June 25 and June 26 convictions unfolded, and the extent to which the interplay between those events and the charges related to them were perceived by the sentencing judge and formed the basis of her analysis and conclusions, it will be necessary for me to describe the procedural background and the judge’s reasoning in some detail.

Background

[6] The facts giving rise to Mr. Skinner’s convictions and which provide a useful introduction to the issues raised on appeal were summarized by Judge Derrick in describing what occurred on June 25, 2013:

[8] The essential facts about the events of June 25, 2013 are quite simple. Mr. Skinner was a passenger in a Hyundai Sonata. Janelle Clayton was driving. On Joseph Howe Drive Mr. Skinner observed a white Lexus being driven by Decoda White. He directed Clayton to “follow that car.” Clayton followed the Lexus to the Hydrostone in north end Halifax. The Lexus pulled over in front of a convenience store called the Hydrostone Market. The Sonata parked a distance behind it. Shiquan Upshaw-Paris got out of the Lexus, walked across the road and yelled at the occupants of the Sonata. He had earlier yelled at them when walking with his girlfriend on Dutch Village Road.

[9] The Sonata pulled out and drove by the parked Lexus. Mr. Skinner pulled out a .32 calibre semi-automatic pistol camouflaged by a bandana and with an outstretched arm fired six shots in the direction of the Lexus. Decoda White, Nathaniel White and Nakaya Downey were all seated in the Lexus at the time. Six shell casings were recovered from the scene and five bullets were found lodged in the driver’s door of the Lexus.

[10] The shooting happened at eleven o’clock in the morning in a busy residential neighbourhood. There were people in the vicinity going about their business. Seconds before a delivery driver had got into his van and pulled away. A young child was inside the Hydrostone Market at the time.

[11] After the shooting, Mr. Skinner directed Clayton to drive on and not to stop, not even at stop signs. Once at his home in Dartmouth, Mr. Skinner was observed wrapping the handgun in a t-shirt in his room. Before doing so he inspected the clip from the pistol, noting that it was empty and that he would need to “buy more ammunition.”

[7] Other material facts were presented by the Crown attorney at the sentencing hearing and were uncontested by Mr. Skinner’s defence counsel. These facts established that when the Lexus stopped in front of the convenience store, the Hyundai Sonata (from which Mr. Skinner later fired his six shots) pulled over and

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parked about 25-30 feet behind the Lexus. After a brief interval the driver of the Sonata pulled out and slowly proceeded down the street past the Lexus. While Mr. Skinner was shooting at the Lexus, a number of people on the street were seen ducking for cover, obviously in reaction to the sound of gunfire.

[8] Judge Derrick went on to relate what happened the next day when Mr. Skinner was arrested, as well as court proceedings that followed:

[12] The next day, June 26, Mr. Skinner was pulled over by police acting on information from two separate reliable sources that he was in possession of a firearm. A loaded .32 calibre Colt pistol wrapped in a bandana was found tucked into his waistband. Ballistic testing confirmed that the five bullets from the Lexus and all six shell casings recovered from the Hydrostone Market scene had been fired by the gun seized from Mr. Skinner on June 26.

[13] Mr. Skinner pleaded guilty on October 23, 2013 to three Criminal Code offences arising from his June 26 arrest: a section 94(1) offence - being the occupant of a motor vehicle in which there is a firearm; a section 95(1) offence – possession of a restricted firearm with ammunition; and a section 117.01(1) offence – possession of a firearm while prohibited.

[14] Mr. Skinner was sentenced for the three offences on the basis of a joint recommendation to a total of five years on top of four months of remand. The section 95(1) offence from June 26, 2013 carried a mandatory minimum sentence of three years for a first offence and five years for a subsequent offence. As I will discuss, on October 23, 2012 Mr. Skinner had a youth record for section 95(1) offences so the June 26 section 95(1) offence was a subsequent offence attracting a five year mandatory minimum prison term.

[9] To recap, we know that June 25 was the day of the shooting, and June 26 was the day Mr. Skinner was arrested. Each day led to different charges, pleas and convictions. As I have said, a complicating factor in all of this is the fact that the June 26 (arrest) offences were disposed of approximately a year and a half before Mr. Skinner was sentenced for the June 25 (shooting) offences.

[10] The three June 26, 2013 offences for which Mr. Skinner was convicted were:

i. Section 94(1): being an occupant of a motor vehicle in which the person knows there is a firearm or a prohibited or restricted weapon, and

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ii. Section 95(1): possession of a loaded, prohibited firearm or restricted firearm, and

iii. Section 117.01(1): possession of a firearm, or a prohibited or restricted weapon while the person is prohibited from doing so by previous order of the court.

[11] On October 23, 2013, Mr. Skinner appeared before Judge D. Timothy Gabriel to be sentenced for these three offences. Because Mr. Skinner had had an earlier s. 95(1) conviction, he faced a mandatory minimum sentence of five years’ imprisonment pursuant to s. 95(2)(ii). Following a joint recommendation from counsel, Judge Gabriel sentenced Mr. Skinner for the three June 26 offences to a global sentence of five years’ imprisonment. That five year sentence began on October 23, 2013, which meant that by the time Mr. Skinner appeared before Judge Derrick on May 15, 2015, for sentencing on the June 25 offences, he had already served about a year and a half of that five year sentence.

[12] With this background we can now understand the context for Mr. Skinner’s appearance before Judge Derrick. She described it this way:

[1] Shaquille Skinner has pleaded guilty to three offences committed on June 25, 2013:

1) With intent to endanger the lives of Decoda Levon White, Nathaniel Dominique White, and Nakaya Jaylene Downey, discharging a firearm, a Colt 1903 Pocket Hammer .32 calibre semi-automatic pistol, contrary to section 244 of the Criminal Code;

2) Having in his possession a prohibited weapon while he was prohibited from possession by a Criminal Code section 109 Order of Prohibition dated March 27, 2012, contrary to section 117.01(1) of the Criminal Code; and

3) Breaching the “keep the peace and be of good behaviour” condition of a court Undertaking dated April 18, 2013, contrary to section 145(3) of the Criminal Code.

[2] On June 25, 2013 Mr. Skinner fired off six rounds at a parked car in the north end of Halifax. The car was occupied. There were other people in the area at the time. Miraculously no one was hurt. Mr. Skinner fled the scene.

[3] The next day, June 26, Mr. Skinner was arrested by police acting on information that he was in possession of a gun. A search incidental to his arrest produced a loaded .32 calibre semi-automatic pistol. It was later determined to be the pistol used in the June 25 shooting.

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[4] On October 23, 2013 Mr. Skinner was sentenced for the June 26 firearms offences. He received a mandatory minimum five year prison sentence for the section 95(1) offence of being in possession of a loaded prohibited firearm.

[5] This is the context for my sentencing of Mr. Skinner today. I must determine the sentences for the three June 25 offences. There is a mandatory minimum sentence of five years for the section 244 offence – shooting at the occupants of the Lexus. And once I have determined the sentence for the June 25 offences, I must consider whether Mr. Skinner’s new sentence should be consecutive to the sentence he is currently serving or concurrent to that sentence.

[6] The Crown is seeking a sentence of 12 years for the June 25 offences – 11 years for the section 244 offence and one year consecutive for the section 117.01(1) offence. Mr. Woodburn’s position is that the global sentence this would produce, when Mr. Skinner’s current sentence is factored in, of 17 years, is an excessive sentence. Therefore he recommends a reduction of his proposed 12 year sentence to 7 years through the application of the totality principle. This would have the effect of Mr. Skinner serving a further 7 years once he has reached warrant expiry on his October 23, 2013 sentence.

[7] The Defence submits that the June 25 and June 26 offences should be sentenced on a concurrent not a consecutive basis. In the submission of the Defence, Mr. Skinner’s total sentence for the two sets of offences combined should be between 6 and 7 years. As I just noted, the Crown proposes a global sentence for Mr. Skinner of 12 years.

[13] After considering the record and counsels’ submissions, Judge Derrick delivered a lengthy, thoughtful and carefully crafted set of reasons in which she initially imposed a sentence of seven years on the s. 244 charge; plus one year consecutive on the s. 109 charge, plus six months concurrent on the s. 145(3) charge. This led to a global sentence of eight years which Judge Derrick went on to characterize as “excessive”, prompting her to reduce it to five and a half years to run concurrently with the sentence Mr. Skinner was serving for the June 26 offences.

[14] I will add further detail to the analytical approach taken by Derrick, P.C.J. when I address the Crown’s submissions on appeal.

Standard of Review

[15] While typically included as an important section in any brief, factum or decision, standard of review is a concept which is often poorly understood. For the benefit of readers who might not be legally trained, a brief introduction may be helpful.

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[16] I begin with a simple reminder of our role and responsibility as a Court of Appeal. We review for error. An appeal is not a chance for a second trial. In order to overturn or vary a decision following a trial, we must be satisfied that the error is serious and affected the result. We do not intervene when the mistake is found to be trivial.

[17] Long-settled rules set the boundaries for our evaluation of errors alleged to have occurred in the court below. That assessment requires the application of an appropriate standard of review, which is fixed by the type of error said to have occurred. The phrase “standard of review” is simply a label used to explain the margin or tolerance for deviation allowed during appellate review, depending upon the category of issue or question challenged on appeal. It is a convenient way to describe the view-finder, the lens, through which we, as appellate judges examine the error alleged to have occurred in the court below.

[18] For the purposes of this introduction and its application to this case, I will restrict my observations to the occasions that most often arise in the context of criminal and civil appeals. Obviously, my comments are not intended to cover the host of other situations where different standards and terminology will apply, such as we see in administrative law; judicial review; damages; costs; or matters said to involve mixed questions of law and fact.

[19] Generally then, in criminal and civil cases, the initial inquiry focuses on whether the alleged error concerns a “question of law” or a “question of fact”. As we shall see, the difference matters. The characterization of the error drives the standard of review applied to it. See, for example, R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. M.(C.A.), [1996] 1 S.C.R. 500; Housen v. Nikolaisen, [2002] 2 S.C.R. 235; and H.L. v. Canada (Attorney General), 2005 SCC 25.

[20] When the error is said to involve a question of law, the judge must always be right. That is why the standard of review on questions of law is said to be one of correctness. In interpreting and properly applying the law the judge must be correct.

[21] By contrast, the standard of review is different whenever the issue challenged on appeal is no longer legally centric. When errors are said to have occurred in such things as a trial judge deciding what facts to accept and what reasonable inferences to draw from those facts; or apportioning weight to the evidence the judge chooses to accept; or resolving matters of credibility; those errors are tested on appeal using a much different yardstick. There, considerable

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deference is paid to the trial judge’s decisions and a broader latitude for tolerance is invoked when such rulings are challenged in this Court. In the context of criminal appeals, questions of fact will not be disturbed unless they are found to be unreasonable or unsupported by the evidence. Slightly different language is used in the context of civil appeals where factual findings will not be interfered with unless they are said to be the product of palpable and overriding error.

[22] To understand these concepts, a simple analogy is often helpful. I will use the example of a target to illustrate the difference. Whether one has ever engaged in target practice or taken part in archery, everyone knows what a bull’s eye target looks like, with its series of concentric circles, reducing to a small circle in the center. As we have seen, the standard of review applied to questions of law is one of correctness. The judge’s rulings must hit the bull’s eye. There is no room or margin for error. Striking the outside rings on the target is never good enough. A bull’s eye, on a question of law, is always required. No deference is accorded. Errors of law will be set aside and corrected.

[23] By contrast, a judge’s decisions on questions of fact are not evaluated on a standard of correctness. A high degree of deference is accorded. Even though opinions may differ with regards to particular factual rulings, they will not likely be disturbed because the margin or tolerance for deviation is wide enough to accommodate other outcomes which are reasonable and find support in the evidence. Recalling my analogy, striking the outer rings on the target will suffice and appellate intervention will not be warranted.

[24] This then explains why it is important to understand how the appropriate standard of review will vary depending upon how one characterizes the issue or ground of appeal, and why and in what circumstances limits have been placed on our power to intervene.

[25] The reasons for adopting such an approach are of course grounded in both common sense and policy. Obviously the trial (or sentencing) judge has seen and heard the evidence from a front row seat. Long-settled jurisprudence, over the centuries, has carefully emphasized the advantage trial judges have over appellate judges when deciding the facts. They are in the best position to watch the witness, observe demeanor, decide matters of credibility, and ultimately sort out and state a preference for contradictory evidence.

[26] Further, in terms of public policy, there must be certainty, consistency and finality in the law. Trials are the recognized forum where facts are decided by an

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independent and impartial decision-maker. If appeals gave the parties carte blanche to try the same matter all over again, there would never be an end to disputes. The attendant delay, added costs, wasted resources, inconsistent verdicts, and inability to correct for error or provide meaningful relief to the parties would thwart any chance of obtaining timely and affordable justice.

[27] These then are some of the reasons why the roles and responsibilities of trial and appellate courts are so different. It is hoped that this brief commentary will serve to better explain how those principles will influence and constrain our consideration of cases on appeal. This takes me to the standards that apply to the issues raised in this case.

[28] The law relating to appeals from sentence is well-settled. The “test” to be applied is not how many years in prison I or any of my colleagues would have imposed had Mr. Skinner first appeared in this Court for sentencing. The law is such that our role on appeals from sentence is narrowly defined. The limitations on our authority were recently described by Justice Oland in R. v. B.M.S., 2016 NSCA 35:

[11] Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law: R. v. Shropshire, [1995] 4 S.C.R. 227 at ¶ 46, R. v. Nasogaluak, 2010 SCC 6 at ¶ 43 – 46. Absent an error in principle, failure to consider a relevant factor, overemphasis of the appropriate facts, or a sentence that is demonstrably unfit, a Court of Appeal should not intervene: R. v. Proulx, 2000 SCC 5 at ¶ 123. Any error that may be identified by an appellate Court will only justify intervention if that error had an impact on the sentence ordered: R. v. Lacasse, 2015 SCC 64 at ¶ 41, 43 – 44.

These are the principles I will apply to the issues raised by the Crown on appeal.

Issues

[29] The Crown lists five issues in its factum. I will reword and modify the sequence slightly as I prefer to deal with the issues in the following order:

i. Did the judge err in her characterization of Mr. Skinner’s moral culpability?

ii. Did the judge err by over-emphasizing Mr. Skinner’s prospects for rehabilitation or under-emphasizing the principles of deterrence and denunciation?

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iii. Did the judge err in her approach to concurrent versus consecutive sentences for the June 25 and June 26 offences?

iv. Did the judge err in her application of the principle of totality?

v. Did these errors lead to an unfit sentence?

Analysis

(i) Did the judge err in her characterization of Mr. Skinner’s moral culpability?

[30] The Crown says the judge “made palpable and overriding errors in her characterization” of Mr. Skinner’s moral culpability. Respectfully, in the criminal law context, the question properly put is whether her findings in this regard were reasonable and supported by the record. This is obviously a fact-driven evaluation. Absent a flawed factual finding that is unreasonable or unsupported by the evidence, we have no reason to intervene.

[31] After careful consideration I am not persuaded that Judge Derrick failed to consider the extent of Mr. Skinner’s moral blameworthiness or erred in its characterization. In sentencing him she said, in part:

…

[10] The shooting happened at eleven o’clock in the morning in a busy residential neighbourhood. There were people in the vicinity going about their business. Seconds before a delivery driver had got into his van and pulled away. A young child was inside the Hydrostone Market at the time.

[11] After the shooting, Mr. Skinner directed Clayton to drive on and not to stop, not even at stop signs. Once at his home in Dartmouth, Mr. Skinner was observed wrapping the handgun in a t-shirt in his room. Before doing so he inspected the clip from the pistol, noting that it was empty and that he would need to “buy more ammunition.”

…

[25] Mr. Skinner has 22 prior convictions, including the three offences committed on June 26, 2013 – being an occupant of a motor vehicle in which there was a firearm (section 94(1)); possession of the .32 calibre semi-automatic handgun (section 95(1)); and possession of a firearm while prohibited. (section 117.01(1))

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[26] In addition, Mr. Skinner has three other section 95(1) convictions. His first section 95(1) conviction was in June 2011. The offence was committed on March 22, 2011 when he was arrested for carrying a loaded .357 magnum handgun. He was almost 17 at the time. The handgun was tucked into the front of his waistband. He was placed on probation for a year under the Youth Criminal Justice Act (YCJA).

[27] In March 2012, on the basis of a joint recommendation Mr. Skinner received a six month Custody and Supervision Order followed by six months’ probation under the YCJA for offences committed in November 2011. A police search of his room at his parents’ house located a .12 gauge shotgun with ammunition and a loaded .38 calibre revolver. He was also sentenced for possession of crack cocaine for the purpose of trafficking. The custodial portion of his six month sentence was served at the Youth Facility in Waterville.

[28] Mr. Skinner’s March 2012 Youth Court sentence included a five-year section 109 prohibition order. It is this order that he violated on June 25, 2013 when he used the .32 calibre handgun to shoot up the Lexus.

[29] Mr. Skinner’s Youth Criminal Justice record also includes breaches and non-compliance of various kinds – release conditions and sentence orders (12); mischief (1); and failing to attend court (1).

[30] Mr. Skinner’s first adult sentence for a gun-related offence was in October 2013 when he pleaded guilty to his June 26 possession of the handgun used in the June 25 shooting. The shooting on June 25 is his first offence involving violence.

The March 26, 2012 Sentencing

[31] Mr. Skinner’s last youth sentencing was on March 26, 2012. Less than two weeks later Mr. Skinner turned 18. I sentenced Mr. Skinner on March 26, 2012. The Provincial Crown prosecuting the gun offences and the Federal Crown prosecuting the drug offences made impassioned submissions about the high-risk lifestyle that Mr. Skinner had been choosing as a youth. Warnings were delivered about the mandatory minimums that would apply if he was convicted of gun possession offences once he had turned 18. Mr. Skinner’s significant potential was acknowledged by both Crown and Defence. I am saddened to be sentencing Mr. Skinner again, now as a young adult, saddened that Mr. Skinner squandered his opportunities in the youth criminal justice system and failed to put his bad choices “firmly and completely” behind him as I urged him to do at the time. As his lawyer said at Mr. Skinner’s sentencing on October 23, 2013 about his involvement in the youth criminal justice system, he just did not get the message. He is paying a very heavy price for that now.

…

[34] Assessing moral culpability is a fundamental aspect of determining the appropriate sentence: a sentence must be proportionate to the gravity of the

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offence and the degree of responsibility of the offender. (section 718.1, Criminal Code) Proportionality is “closely tied to the objective of denunciation”, promotes justice for victims, and seeks to ensure public confidence in the justice system. The principle of proportionality,

…ensures that a sentence does not exceed what is appropriate, given the blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. (Ipeelee, paragraph 37)

…

[39] The aggravating factors in this case are quite pronounced: Mr. Skinner had the time and opportunity to reflect on his initial reaction to the white Lexus and abandon the pursuit or drive by without shooting. He shot at close range. There were people in the vicinity who could have been injured or killed if a shot had ricocheted. Mr. Skinner has a prior record for gun-related offences.

…

[42] Mr. Skinner is exactly right when he observes that he could have ruined lives, his own and others. He could have killed or seriously wounded the occupants of the Lexus and/or killed or wounded a bystander as a result of a ricochet. It is reasonable to infer that he was reacting to some kind of slight or insult and went out of his way to follow and then fire on the Lexus. There was nothing to stop him from ignoring a perceived provocation and going home. No one would have been placed at risk and he would not be growing into adulthood in prison. How much he must regret now his hot-headed reaction, his singular focus on settling a score.

…

Then, after comparing and distinguishing the circumstances of this case to a number of other precedents emphasized by the Crown Attorney, Derrick, P.C.J. said:

[60] Mr. Skinner, at 19, fired at the parked Lexus from close range, embedding five bullets in the driver’s door. It seems to have been a deliberate but impulsive act. It was pure gangster-ism played out in broad daylight with no thought for the potential consequences. Mr. Skinner has a high degree of moral culpability for his actions. The sentencing emphasis has to be on denunciation and deterrence. I find that a sentence of seven (7) years is appropriate taking into account his guilty plea, his age, a more limited prior record than Durnford, Bevin, MacKenzie, and

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Chan, and the fact that, despite the potential lethality of his actions, no one was injured.

…

[61] When Mr. Skinner fired at the occupants of the white Lexus, he was subject to a weapons prohibition order imposed when he was sentenced in March 2012 as a young person for the possession of the loaded .38 calibre revolver and the shotgun with ammunition. Despite the weapons prohibition order, Mr. Skinner not only had the .32 calibre semi-automatic pistol in his possession on June 25, 2013, he used it.

[32] While, as I have noted, other judges may well have taken a harsher view of Mr. Skinner’s culpability having regard to the many aggravating factors relating to the conduct for which he was being sentenced, I am not persuaded she erred in the manner alleged by the Crown.

(ii) Did the judge err by over-emphasizing Mr. Skinner’s prospects for rehabilitation or under-emphasizing the principles of deterrence and denunciation?

[33] Here again the Crown makes a powerful argument in support of its submission that the sentence ought to be overturned. While not without some hesitation, I have concluded that with respect to this issue, the sentence is saved by the standard of review.

[34] Respectfully, while Judge Derrick’s disposition comes very close to the line, my response to the Crown’s second complaint is the same as the first.

[35] From the parts of her sentencing decision to which I have already referred (for example, ¶25-30), as quoted at ¶31 above, it is obvious that Derrick, P.C.J. was very familiar with Mr. Skinner and his circumstances, having dealt with him during previous appearances in her courtroom. Evidently she saw some positive qualities in this young man which convinced her that he still had some viable prospects for rehabilitation. Whether others would agree with her assessment is not the point. The judge said:

[15] In late June 2013, Mr. Skinner was 19 years old. He completed Grade 11 at Citadel High School in Halifax. He showed athletic and creative ability, playing on the school’s basketball team as well as in metro leagues and performing in a Neptune Theatre play.

[16] Other than a one month long job with his father in 2012 and six months of work from October 2012 to April 2013, Mr. Skinner has no employment history.

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[17] Mr. Skinner describes his family as loving and supportive. His parents both worked although his father struggled with a crack cocaine addiction and served time in prison for offences committed while addicted. Mr. Skinner’s mother remains very supportive of him and has remained in close contact during his incarceration. She blames herself in part for her son’s circumstances, indicating to the author of the pre-sentence report that she moved into low-income housing to save some money. She now considers the move to have been a mistake.

[18] Both Mr. Skinner’s mother and his long-term “on-again-off-again” girlfriend view him as a good person who has made some very bad choices. In the pre-sentence report Ms. Skinner described her son as a “very caring, thoughtful” person who gets along well with other people. She notes that when he was 11, Mr. Skinner saved his two little brothers and her from a house fire, and was recognized for his heroism by the Province.

[19] As revealed by his youth record, Mr. Skinner made some very bad choices during his adolescence that led to a lifestyle he described in the pre-sentence report of selling drugs on the street and being involved with guns. He says he wants to change.

[20] In his pre-sentence report interview, Mr. Skinner took full responsibility for his actions and did not deflect blame onto anyone else. He told the author of the pre-sentence report that he “was aware that the decisions he made were not right and he does not want to live this lifestyle anymore.” He indicated he has had a lot of time to think during his current prison sentence. The pre-sentence report notes that Mr. Skinner acknowledged he “could have ruined his life and many others. He thanked God that no one was hurt.” He expressed remorse, saying he had not intended to hurt the occupants of the Lexus and hopes they have not been traumatized by what he did.

[21] In the pre-sentence report, Mr. Skinner described being in prison as “the real deal”, an experience that has been “an eye opener” for him. He says he wants to return to his family, get a real job and set a better example for his younger brothers, aged 14 and 18. He has been participating in institutional programming and produced recent certificates for institutional programs which appear to have primarily concerned various types of cleaning. He would like to complete some upgrading and study a trade. In December 2014 while in Springhill Penitentiary Mr. Skinner completed his General Equivalency Diploma.

[22] The pre-sentence report notes that during his current incarceration, Mr. Skinner has been participating in “the Moderate Program” which is the program I described in an earlier sentencing decision, based on evidence from the Correctional Service of Canada. (R. v. X, [2014] N.S.J. No. 609, paragraphs 229 - 231) It is a cognitive/behavioural, group-based model of programming. Offenders are assigned to either the moderate intensity or high intensity program depending on the assessment of their risk. The moderate intensity program is 50 sessions taking approximately 4 months. The program is full-time, about 3 to 4 hours per day in a classroom setting. Offenders are given worksheets and required to

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prepare journals and relapse prevention plans. There are individual sessions with program facilitators as well. Participation in programming is voluntary.

[23] Mr. Skinner’s institutional parole officer was interviewed for the pre-sentence report. He has had Mr. Skinner on his case load since May 13, 2014 and sees him every couple of weeks. Mr. Skinner is always polite and cooperative. His parole officer described him as very well spoken and intelligent but having a quick temper.

[24] I will note that in oral submissions, Mr. Woodburn referred to comments by Mr. Skinner’s parole officer in the pre-sentence report as an indication that Mr. Skinner is not genuinely interested in reforming himself. The comments disclose that Mr. Skinner has been subject to segregation placements. He is described as “a known member” of a “security group and closely associated with active gang members.” Mr. McGuigan cautioned that these statements cannot be interpreted to mean that Mr. Skinner is engaged in criminal activity at Springhill. There is no evidence of that. There can be many reasons why a prisoner is placed in segregation. In Mr. McGuigan’s submission, the institution may have segregated Mr. Skinner on occasion due to concerns about “incompatibles.” Given that Mr. Skinner was involved in criminal activity in the community, this would not be surprising. It is a reality that prison officials confront in their management of a large offender population. I am not prepared to treat the statements in Mr. Skinner’s pre-sentence report as evidence that he is not committed to his rehabilitation.

…

[31] Mr. Skinner’s last youth sentencing was on March 26, 2012. Less than two weeks later Mr. Skinner turned 18. I sentenced Mr. Skinner on March 26, 2012. The Provincial Crown prosecuting the gun offences and the Federal Crown prosecuting the drug offences made impassioned submissions about the high-risk lifestyle that Mr. Skinner had been choosing as a youth. Warnings were delivered about the mandatory minimums that would apply if he was convicted of gun possession offences once he had turned 18. Mr. Skinner’s significant potential was acknowledged by both Crown and Defence. I am saddened to be sentencing Mr. Skinner again, now as a young adult, saddened that Mr. Skinner squandered his opportunities in the youth criminal justice system and failed to put his bad choices “firmly and completely” behind him as I urged him to do at the time. As his lawyer said at Mr. Skinner’s sentencing on October 23, 2013 about his involvement in the youth criminal justice system, he just did not get the message. He is paying a very heavy price for that now.

The Purpose and Principles of Sentencing

[32] In sentencing Mr. Skinner I am guided by the sentencing provisions of the Criminal Code. Section 718 of the Criminal Code sets out the objectives a sentence must achieve: denunciation, deterrence – both specific and general, separation from society where necessary, rehabilitation of the offender,

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reparations by the offender, and the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[33] Sentencing is profoundly subjective. (R. v. Ipeelee,[2012] S.C.J. No. 13, paragraph 39; R. v. Wust, [2000] S.C.J. No. 19 paragraph 21; R. v. M. (C.A.), [1996] S.C.J. No. 28, paragraph 92; R. v. Shropshire, [1995] S.C.J. No. 52) In determining a fit sentence, “…the sentencing judge should take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender's personal circumstances.” (R. v. Pham, [2013] S.C.J. No. 100, paragraph 8; R. v. Nasogaluak, [2010] S.C.J. No. 6, paragraph 44)

…

[35] There are several mitigating factors to be taken into account in sentencing Mr. Skinner – his age, the guilty pleas and his expressions of remorse. I disagree with Mr. Woodburn’s submission that Mr. Skinner’s prior related record and his failure to learn his lesson in the youth criminal justice system mean that his youth should not be considered in mitigation.

[36] Mr. Skinner’s age is a mitigating factor because he is still young enough to turn away from his anti-social choices and lifestyle, which he has said he wants to abandon. He has said before that he wants to change. That does not mean I should ignore the potential for him to make good on these claims as he matures.

[37] Mr. Skinner’s prospects for rehabilitation must not be extinguished by too onerous a sentence. Requiring him to mature during many years in the harsh and dangerous environment of prison carries the risk of entrenching him in a criminal mindset. When these offences were committed, Mr. Skinner was only 19.

[38] The guilty pleas and Mr. Skinner’s acceptance of full responsibility, and his expressions of remorse in the pre-sentence report indicate that he is not inclined to justify the shooting and the peril in which he placed the victims and other people. This is a foundation on which rehabilitation can be built. Mr. Skinner acted like a gangster: he does however say that is not the person he wants to be.

[36] These observations are mainly based on the judge’s factual findings. I cannot say that those findings are unreasonable or not supported on the evidence. Having carefully reflected upon Judge Derrick’s thorough evaluation of Mr. Skinner’s circumstances, I am not convinced that she erred by giving too much weight to his prospects for rehabilitation or too little weight to the principles of deterrence and denunciation.

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(iii) Did the judge err in her approach to concurrent versus consecutive sentences for the June 25 and June 26 offences?

[37] On this issue the Crown says the judge erred in two respects. First, she did not comply with the methodology regarding sentencing for multiple offences as mandated by this Court’s decision in R. v. Adams, 2010 NSCA 42. Second, as expressed in its factum, the judge erroneously treated the June 25 and June 26 offences as “a single transaction by ignoring the critical aspect which was the renewed intention to knowingly possess a loaded, prohibited weapon.”

[38] I respectfully disagree. The decision to order a concurrent or a consecutive sentence falls within a judge’s broad discretion. In R. v. McDonnell, [1997] 1 S.C.R. 948, Sopinka, J. for the majority wrote:

46 In my opinion, the decision to order concurrent or consecutive sentences should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered. The rationale for deference with respect to the length of sentence, clearly stated in both Shropshire and M. (C.A.), applies equally to the decision to order concurrent or consecutive sentences. In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case; it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit. The Court of Appeal in the present case failed to raise a legitimate reason to alter the order of concurrent sentences made by the sentencing judge; the court simply disagreed with the result of the sentencing judge’s exercise of discretion, which is insufficient to interfere.

See as well R. v. Knockwood, 2009 NSCA 98; R. v. Bernard, 2011 NSCA 53; and R. v. Banfield, 2012 NSCA 98.

[39] Appellate courts are to treat such decisions with the same level of deference as the length of sentence imposed in first instance. This acknowledges the advantages enjoyed by the sentencing judge, including his or her first-hand knowledge of the case.

[40] Judge Derrick was fully aware of the June 25 and June 26 offences. She considered the positions urged by both the Crown and defence and noted “the arguments that can be marshalled for either proposition have their merits”. She specifically addressed the fact that Mr. Skinner had re-loaded the gun and wrapped it in a new bandana. She did not “ignore” any factors in her analysis. She

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concluded that Mr. Skinner’s continued possession of the same gun the next day justified concurrent sentences. Again, this ruling was entirely discretionary based on her first-hand knowledge of the facts and circumstances. In my view it should not be disturbed.

[41] Neither would I interfere with the judge’s application of the sequential steps described by this Court in Adams. There, this Court directed that when sentencing for multiple offences, sentencing judges should proceed in the following order:

Fix a sentence for each offence;

Determine which should be consecutive and which, if any, concurrent;

Take a final look at the aggregate sentence; and

Only if the total exceeds what would be a just and appropriate sentence is the overall sentence reduced.

[42] The Crown argues that Derrick, P.C.J., ought to have reversed the first two steps, namely, decide whether to sentence Mr. Skinner to consecutive or concurrent sentences and then fix the sentences for each. I disagree. First, the Crown’s assertion is contrary to the sequence mandated by this Court in Adams (at ¶23). Further, and in any event, this Court has always cautioned against a slavish, mathematical and formulaic approach to sentencing for multiple offences. In R. v. Hatch, [1979] N.S.J. No. 520, Chief Justice MacKeigan put it this way:

[6] We have frequently noted that the Code seems to require consecutive sentences unless there is a reasonably close nexus between the offences in time and place as part of one continuing criminal operation or transaction: [citation omitted]. This does not mean, however, that we should slavishly impose consecutive sentences merely because offences are, for example, committed on different days. It seems to me that we must use common sense …

[7] The choice of consecutive versus concurrent sentences does not matter very much in practice so long as the total sentence is appropriate. Use of the consecutive technique, when in doubt as to the closeness of the nexus, ensures in many cases that the total sentence is more likely to be fit than if concurrent sentences alone are used. Conversely, unthinking use of concurrent sentences may obscure the cumulative seriousness of multiple offences.

[43] Our rejection of the approach we criticized and overturned in Adams, for reasons we subsequently reiterated in Bernard, addressed the mistake judges made when they proceeded to first fix a global sentence and then work backwards to fit

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the individual sentences within the whole. We directed that the proper approach was for the judge to turn his or her mind to the appropriate sentence for each individual conviction and then go on to decide whether the sentence(s) should be consecutive or concurrent before ultimately taking a last look at the aggregate sentence and tempering it, if need be, on account of totality and proportionality.

[44] Here, the sentencing judge made no such error. Judge Derrick’s decision is replete with explicit references to Mr. Skinner’s overall blameworthiness. I am satisfied that she fully appreciated and considered the combined effect of the June 25 and 26 offences and crafted a sentence that was proportionate to Mr. Skinner’s moral culpability for his actions on both days.

(iv) Did the judge err in her application of the principle of totality?

[45] Respectfully, this unfortunate misstep by the sentencing judge constitutes a serious error and obliges us to intervene.

[46] Having decided that the sentence for the June 25 offences should be concurrent to the sentence Mr. Skinner was already serving, Judge Derrick said:

[92] I have concluded that Mr. Skinner’s sentence for the June 25 offences should total five and a half (5.5) years to run, as I have indicated, concurrently with the sentence he is serving. That means he will serve a further two years in prison at the conclusion of his current sentence. This represents a very lengthy sentence for a young man who went to the penitentiary at the age of 19. In order to give effect to my application of the totality principle, I will have to arbitrarily reduce Mr. Skinner’s sentence for the section 244 offence by 2.5 years so that the sentence calculation is: section 244 offence – 4.5 years (This is six months below the mandatory minimum for section 244 offences. In R. v. Wust, [2000] S.C.J. No. 19, at paragraphs 22 and 23, the Supreme Court of Canada held that “mandatory minimum sentences must be understood in the full context of the sentencing scheme” which the Court held includes the principles of proportionality and totality.); section 117.01(1) offence – 1 year consecutive; and the section 145(3) breach – 6 months concurrent.

[47] The mistake is obvious. She applied the “totality principle” to a sentence she had ordered to be served concurrently. Such an approach is prohibited by the sentencing principles enshrined in the Criminal Code. Section 718.2 says:

Other Sentence Principles – A court that imposes a sentence shall also take into consideration the following principles:

…

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(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh …

Parliament has explicitly limited the application of the principle of totality to cases where consecutive sentences are ordered.

[48] While at one point in her reasons the judge did advert to s. 718.2(c) of the Criminal Code, it would appear that she failed to recognize its implications when she turned her mind to giving her provisional calculations a “final look” and then skewed the result by purporting to apply the totality principle to a concurrent sentence.

[49] Having already determined that Mr. Skinner’s sentence for the June 25 offences would be treated as concurrent to the June 26 offences, Judge Derrick was prohibited from applying the totality principle as a basis for deciding “to arbitrarily reduce” Mr. Skinner’s sentence by 2½ years. It goes without saying that the judge’s error “had an impact on the sentence” and thus requires our intervention (Lacasse at ¶44).

[50] Pursuant to our authority under s. 687 of the Criminal Code, I would allow the appeal and impose the sentence Judge Derrick ought to have imposed, but for her error. This varied sentence will be effective, in other words start to run, on the date it was imposed by Judge Derrick, that being May 15, 2015. I would affirm the seven year sentence she gave for the s. 244 offence (which will be reduced by the 1.5 years Mr. Skinner had, by that point, already served on the sentence imposed by Judge Gabriel for the June 26 convictions), plus the one year consecutive term imposed by Judge Derrick for the s. 109 offence, plus the six months’ concurrent sentence she imposed for the s. 145(3) offence. In summary, the total sentence for the June 25, 2013 offences which are the subject of this appeal is 6.5 years, commencing May 15, 2015.

(v) Did these errors lead to an unfit sentence?

[51] Having allowed the appeal and varied the sentence in the manner just described, I need not go on to consider this final issue raised by the Crown.

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Conclusion

[52] I would allow the appeal in part and fix his sentence at 6.5 years' imprisonment, effective May 15, 2015.

Saunders, J.A.

Concurred in:

Beveridge, J.A.

Hamilton, J.A