COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hewitt, 2018 ONCA 561
DATE: 20180619
DOCKET: C64079
Sharpe, Roberts and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Amanda Hewitt
Appellant
Robert J. Reynolds, for the appellant
Avene Derwa, for the respondent
Heard and released orally: June 18, 2018
On appeal from the sentence imposed on June 21, 2017 by Justice S. Hunter of the Ontario Court of Justice.
REASONS FOR DECISION
[1] The appellant appeals from her three-year sentence (less six months for pre-sentence custody) following her guilty plea for trafficking in firearms. She was granted leave to appeal sentence on February 16, 2018. She has now served 12 months of her sentence and is eligible for parole.
[2] Pursuant to a joint submission, the appellant received the three-year mandatory minimum sentence under s. 99(2)(a) of the Criminal Code, less 6 months’ credit for pre-sentence custody.
[3] The appellant submits that the mandatory minimum sentence under s. 99(2)(a) is contrary to s. 12 of the Charter because it is overly broad. It captures reasonable hypotheticals for which the 3-year mandatory minimum would be a grossly disproportionate sentence. The appellant seeks to file fresh evidence, without objection from the Crown, that her counsel was unaware of various lower court decisions in which the courts held that s. 99(2)(a) is contrary to s. 12 of the Charter, and outlining her personal circumstances.
[4] The appellant submits that without the mandatory minimum, the appropriate sentence in her circumstances would be 24 months, less 6 months for pre-sentence custody credit, plus a term of probation.
[5] It is not necessary for us to consider the appellant’s constitutional argument because it would not affect the sentence: R. v. Chambers, 2013 ONCA 680. Even if the mandatory minimum did not apply, the three-year sentence imposed in the circumstances of this case was fit and appropriate.
[6] The most significant mitigating factors here include the appellant’s guilty plea, her very troubled and personal history, and the fact that she was a first-time offender when she committed the index offence. These factors have to be balanced against the seriously aggravating features of this case. These include that the appellant transferred 9 non-restricted long guns, some without serial numbers, and at least one of which was stolen; she admitted that she asked for payment and admitted that she suspected the guns were stolen; and that, at the time of transfer, she was subject to a prohibition order against possessing any weapons.
[7] The sentence imposed was within the range of sentences for similar offences and similar offenders. It follows that even if the mandatory minimum did not apply, the sentence was fit.
[8] Accordingly, the appeal from sentence is dismissed.
“Robert J. Sharpe J.A.”
“L.B. Roberts J.A.”
“G.T. Trotter J.A.”