Kevin Stewart

The Ontario Court of Justice sentenced Marlon Johnson for possession of a loaded prohibited firearm, possession of a prohibited firearm knowing possession was unauthorized, and possession of a firearm contrary to a prohibition order.

The court carefully considered the gravity of the offences, the offender’s background including systemic anti-Black racism, and the principles of sentencing such as denunciation, deterrence, restraint, and proportionality.

The court found Mr. Johnson’s moral blameworthiness somewhat diminished due to social context factors but emphasized the serious public safety risks posed by the offences.

The sentence imposed was 35 months and 15 days for the primary offence, 24 months concurrent for the second, and 9 months consecutive for the prohibition breach, totaling 44 months and 15 days custody.

Zion Lewis, a 20-year-old first offender, pleaded guilty to possession of a loaded restricted firearm.

The court considered aggravating factors, including the inherent danger of the weapon and its possession after a car accident, and mitigating factors such as his youth, guilty plea, strong rehabilitative prospects, supportive family, harsh pre-trial custody conditions (including contracting COVID-19), and experiences with anti-Black racism.

The court emphasized denunciation and deterrence but also rehabilitation, particularly for youthful first offenders, and the relevance of social context evidence to moral blameworthiness.

The court imposed an 18-month sentence, with credit for pre-trial custody and strict bail conditions, resulting in 106 days remaining to be served, followed by 2 years of probation.

Ancillary orders included a lifetime firearms prohibition and a DNA databank order.

Jabir Khan was convicted of possession of a restricted firearm and occupation of a motor vehicle knowing it contained an unregistered restricted firearm.

The offences involved a sawed-off shotgun with ammunition, which Khan took as a favour for a friend.

The Crown sought a 4-year sentence, while the defence proposed 2.5 years, potentially as a conditional sentence.

The court considered aggravating factors, including Khan's lengthy criminal record, multiple lifetime firearms prohibitions, and the dangerous nature of the weapon.

Mitigating factors included 26 months of house arrest bail, pre-trial custody credit, significant gaps in his criminal record, current employment, and expressed remorse.

The court imposed a global sentence of 3 years, resulting in 2 years and 323 days remaining to be served after credit for pre-trial custody.

A concurrent 12-month sentence was imposed for the vehicle offence.

Ancillary orders included a lifetime firearms prohibition, a DNA order, and a no-contact order with the co-accused while in custody.

The accused, Jabir Khan, was charged with possession of a restricted firearm and occupation of a motor vehicle knowing it contained an unregistered restricted firearm.

The central issue was whether the Crown proved the knowledge component of the possession counts.

The accused testified he believed the duffel bag he received contained cocaine, not a firearm.

The court found the accused's testimony not credible, citing inconsistencies with the size of the bag, the implausibility of the false story, and detailed knowledge revealed in wiretap conversations, including the involvement of Nelson's girlfriend in transferring the firearm.

The lack of effort to disguise the firearm also indicated the accused's knowledge.

The court concluded that the accused knowingly accepted the transfer of the sawed-off shotgun and ammunition.

The defendant challenged the lawfulness of his arrest and the search of his vehicle under sections 8 and 9 of the Canadian Charter of Rights and Freedoms.

The Crown sought to establish that police had reasonable grounds to arrest the defendant based on evidence from a wiretap investigation into a jewelry store robbery.

The defendant argued that certain information was inadmissible and that the remaining evidence was insufficient to establish reasonable grounds.

The court found that the admissible evidence, including wiretap intercepts discussing the movement of a firearm, observations of a meeting between the defendant's vehicle and a suspect, and subsequent communications, provided a sufficient objective basis for the arrest and search.

The applicant challenged the warrantless seizure of his cellular phone subscriber information obtained by police during a Part VI wiretap authorization for a robbery investigation.

The applicant was not a suspect and was not named in the authorization.

Police obtained his subscriber information after intercepting an innocuous conversation between the applicant and a named target.

The court found that the seizure violated s. 8 of the Charter as it was not authorized by law.

The assistance order under s. 487.02 does not authorize expansion of investigations to unnamed persons without reasonable grounds.

The court excluded the subscriber information and any derivative evidence under s. 24(2), finding the breach serious and that admission would undermine public confidence in the rule of law.

The accused, charged with first-degree murder and possession of cannabis for distribution, applied for judicial interim release.

The Crown sought detention on secondary and tertiary grounds, citing strong circumstantial evidence of the accused's involvement in a planned execution, an antisocial lifestyle, and a risk to public safety.

The court considered the accused's health condition (asthma) in the context of the COVID-19 pandemic but found that the proposed release plan with sureties was insufficient to mitigate the substantial risk of re-offending and endangering the community.

The application for bail was dismissed.

The accused was charged with uttering death threats and possession of a weapon for a dangerous purpose.

The Crown alleged that the accused made specific threats to kill Canadians during a phone conversation with a social services manager and was found carrying a concealed folding knife.

The accused denied making the threats, claiming language difficulties, and testified the knife was purchased for a shoe repair and was being returned.

The court found the Crown's witness credible and the accused's testimony unreliable and internally inconsistent.

The court accepted that the accused made the threats in the context of his grievances and possessed the knife for a dangerous purpose.

Guilty verdicts were entered on both counts.

The accused was convicted of communicating with a person believed to be under 18 years of age via telecommunication for the purpose of facilitating obtaining sexual services for consideration, contrary to s. 172.1(2) of the Criminal Code.

The Crown proceeded by indictment, triggering a mandatory minimum sentence of one year imprisonment.

The accused challenged the constitutionality of the mandatory minimum under s. 12 of the Charter, arguing it constituted cruel and unusual punishment.

The court found the mandatory minimum grossly disproportionate when applied to the specific circumstances of the offender and struck it down as unconstitutional.

The court imposed a sentence of five months imprisonment followed by two years probation.

The offender pleaded guilty to possession of a loaded prohibited firearm, possession of methamphetamine, and failure to comply with a recognizance.

The court considered the offender's lengthy criminal record, substance abuse disorder, and ADHD diagnosis, alongside his guilty plea and prospects for rehabilitation.

The court imposed a total sentence of 35.5 months, granting standard pre-sentence credit at 1.5:1 and enhanced credit at 2:1 for days spent in lockdown due to harsh conditions, leaving 4 months to serve followed by 2 years of probation.

The accused was charged with failing to appear in court contrary to section 145(2)(b) of the Criminal Code.

The Crown proved that the accused failed to attend court on June 23, 2017, and did not re-attend until after his arrest on October 20, 2017.

The accused claimed he was unaware of the court date and relied on his lawyer to attend on his behalf.

The court found that while the accused may not have known the specific date, he had a legal obligation to maintain regular contact with his counsel and keep informed of court proceedings.

The accused's breach of multiple bail conditions, including leaving his surety's residence in Quebec and returning to Toronto without updating his lawyer or the officer-in-charge, demonstrated either wilful blindness or recklessness regarding his court obligations.

The court rejected the accused's personal circumstances as a reasonable excuse and found the Crown proved the charge beyond a reasonable doubt.

The accused, David Odesho, brought an application under Section 8 of the Charter to exclude evidence obtained from a strip search and challenged the admissibility of gunshot residue (GSR) evidence found on his underwear.

The court found that the strip search violated Section 8 because there were insufficient grounds to justify it and it was conducted unreasonably, particularly due to being videotaped in its entirety and not authorized by an independent supervisor.

Applying the Grant factors, the court excluded the underwear and GSR analysis under Section 24(2) of the Charter.

Additionally, the court ruled that the single particle of GSR found on the underwear 48 hours after the shooting lacked logical relevance and was inadmissible as expert evidence under the Mohan test, given the numerous alternate explanations for its presence and its low probative value.

The defendant pleaded guilty to robbery, aggravated assault, and disguise with intent to commit an indictable offence arising from a home invasion on February 18, 2014.

Five masked men invaded the home of Stanley and Kathleen Benson in Richmond Hill, Ontario, tasering Kathleen and severely beating Stanley, who suffered a broken ankle, collapsed lung, and other injuries.

The defendant was arrested in October 2014 after 561 days in pre-trial custody.

The Crown sought 8 years imprisonment; the defence sought 4 years and 4 months.

The court imposed a total sentence of 7 years, considering the defendant's youth, remorse, guilty plea, and rehabilitation potential, while balancing the serious nature of the offence and the need for denunciation and deterrence.

A young offender was convicted of manslaughter by a jury for his involvement in the fatal group beating of a 20-year-old victim.

The young offender was 15 years old at the time of the offence.

The Crown sought the maximum youth sentence of three years, while the defence sought time served plus probation.

The court applied the Ferguson principles to determine the facts for sentencing, finding that the young offender assisted in getting the victim into a car, prevented his escape at the park, and helped abandon him at the ringleader's home, where he died of internal bleeding.

The court rejected the defence of duress, finding the young offender had safe avenues of escape.

Emphasizing accountability and rehabilitation, the court sentenced the young offender to 2.5 years, with 18 months remaining to be served (10 months in closed custody and 8 months under community supervision).

The accused brought a motion to exclude evidence obtained through a search warrant, alleging the Information to Obtain (ITO) contained misleading statements suggesting prior robbery convictions that had in fact been stayed.

The court agreed the ITO included inaccurate and misleading information and held that those portions should be excised.

However, applying the Garofoli review standard and considering the totality of the remaining evidence—including surveillance, witness descriptions, and links between the suspect and seized items—the court concluded there remained sufficient grounds that could have justified issuance of the warrant.

In the alternative, the court held that even if a Charter breach occurred, admission of the evidence was warranted under s. 24(2) given the seriousness of the alleged armed robberies and society’s interest in adjudicating the matter on its merits.

The motion to exclude the evidence was dismissed.

The young person, charged with second degree murder, brought pre-trial applications seeking a stay of proceedings and the exclusion of certain evidence.

The moving party argued his right to silence was violated when he was compelled to testify at the preliminary inquiry of his adult co-accused.

The court dismissed the stay application, finding no breach of the Crown's undertaking or the right to silence.

The court ruled photographs of the moving party's hands admissible, finding their probative value outweighed any prejudicial effect.

However, the court excluded late-disclosed DNA evidence regarding blood on the moving party's sweatshirt, finding its admission would prejudice the defence.

A subsequent request by the Crown to admit the DNA evidence in reply was denied, with the court instead providing a strong caution to the jury.

A young person charged with second degree murder brought a pre-trial application seeking a ruling that the defence of duress was available at law.

The Crown alleged the accused was a party to murder as an aider under s. 21(1)(b) of the Criminal Code and argued that duress was unavailable because s. 17 excludes murder.

The court held that s. 17 applies only to principals who actually commit the offence and does not govern parties who aid or abet.

Relying on Supreme Court of Canada authorities including Paquette and Hibbert, the court concluded that the common law defence of duress remains available to a person charged as a party to murder.

The defence could therefore be raised at trial if an evidentiary foundation establishing an air of reality is shown.