COURT OF APPEAL FOR ONTARIO
DATE: 20231208 DOCKET: C69394
Feldman, Roberts and Coroza JJ.A.
BETWEEN
His Majesty the King Respondent
and
Christopher Morris Appellant
Counsel: Fredrick Schumann and Yadesha Satheaswaran, for the appellant Scott Clarke, for the respondent
Heard: March 29, 2023
On appeal from the convictions entered by Justice Jacqueline V. Loignon of the Ontario Court of Justice on October 30, 2020, and from the sentence imposed on November 18, 2020.
1The appellant was convicted of a number of offences as a result of a driving stop in January 2020, including driving offences, failure to comply offences and firearm offences. He was sentenced to six years and nine months in prison. He appeals his convictions for possession of a firearm contrary to s. 95 of the Criminal Code, R.S.C. 1985, c. C-46, and breach of a firearms prohibition order, contrary to s. 117 of the Criminal Code, on the basis that the handgun he had was not operable and could not be “adapted” under the definition of firearm contained in s. 2 of the Criminal Code. He also appeals his sentence and seeks a reduction based on the principles set out by this court in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, regarding the effects of anti-Black racism on an offender.
2For the reasons that follow, I would dismiss the conviction appeal. I would allow the sentence appeal and reduce the sentence by one year.
(1) Background Facts from the Decision of the Trial Judge
3On the late evening of January 11, 2020, a stormy winter night, an Ottawa police officer observed the appellant stopped at a red light with a burnt-out headlight. The appellant drove and the officer activated his roof lights then his siren. Eventually, the appellant stopped his vehicle and the officer went over to his car. The officer noticed that the appellant was rummaging in the area between the door and the seat, which caused the officer to call for back-up. The officer saw marijuana in the centre console of the car and advised the appellant that he would be searching the car.
4The officers who responded to the request for back-up parked their cruisers in front of the appellant’s car. Shortly after they arrived, the appellant drove his car over the curb into one of the cruisers, pushing it out of the way, and sped off, eventually losing control of his car and fishtailing into a ditch. After they arrested the appellant at gunpoint, the officers searched along the area where the appellant had travelled and located a nine-millimetre handgun in the snow near the original traffic stop.
5Detective Joseph Meehan of the Ottawa Police Service, an expert in the examination, identification and classification of firearms, examined and tested the appellant’s gun. When he examined it, he found that the gun did not fire. As a result, he took steps to identify the problem, which turned out to be a broken firing pin, and then he fixed the weapon by obtaining and installing a replacement for the broken part.
6The appellant was charged with dangerous driving, obstruction, failure to stop, failure to comply with conditions of recognizance including prohibitions on driving, being out of his residence without his sureties, possession of drugs and drug paraphernalia and possession of a weapon. He pled guilty to the obstruction and some of the failure to comply counts, and was convicted of dangerous driving, failure to stop, failure to comply as it pertains to possession of drug paraphernalia, possession of a firearm and breaches of orders prohibiting possession of a firearm and ammunition.
7The appellant received a total sentence of six years and nine months for all counts after deducting credit for presentence custody. The facts and circumstances relevant to the sentence appeal will be set out more fully below.
8The appellant appeals only his convictions for possession of a firearm and breach of a firearms prohibition.
(2) Issue on Conviction Appeal
9The sole issue on the conviction appeal is whether the trial judge erred in law by finding that the appellant’s handgun, which was inoperable and required a new firing pin, fell within the definition of firearm in s. 2 of the Criminal Code:
firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm; (arme à feu): Criminal Code, R.S.C. 1985, c. C-46.
(3) Analysis on the Conviction Appeal
10The trial judge identified the issue of whether the appellant’s inoperable handgun could be adapted for use as a firearm. She then analyzed the evidence of Detective Meehan regarding the steps he took to make the gun operable in the context of the caselaw that explains the meaning of “can be adapted” in the definition of firearm in s. 2 of the Criminal Code.
11First, in R. v. Covin, [1983] 1 S.C.R. 725, the Supreme Court explained that where an inoperable gun is used in the commission of an offence, such as robbery, it must be able to be adapted for use in the commission of that offence to come within the definition of “firearm”. Subsequent decisions have held that where the offence is possession of the gun itself, the adaptation period is extended because the gun does not have to be usable on the spot. The evil that is targeted by the section is possession that is dangerous to the public.
12The trial judge referred to the following paragraph from R. v. Ferguson (1985), 20 C.C.C. (3d) 256 (Ont. C.A.), at p. 262:
Because of the nature of the continuing offence of possession of a prohibited weapon under s. 88(1) [now s. 91(1)], and having regard to the purpose of the subsection, we are all satisfied that the acceptable amount of adaptation and the timespan required to render the gun operable is longer than that required for a s. 83 offence [now s. 85], where the adaptation has to be made on the scene in order to support the charge of using a firearm during the commission or attempted commission of an indictable offence or during the flight thereafter.
13The trial judge also quoted from the Ontario Superior Court decision in [R. v. Grant, 2006), where the court conducted a review of the caselaw and summarized the results as follows at para. 24:
The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for the purposes of the offence of possession. By contrast, where the effort to make the gun operational requires special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence.
14The trial judge then turned to the evidence of Detective Meehan where he described exactly the steps he took and the time it took to repair the appellant’s gun. As the appellant’s challenge is to the trial judge’s assessment of this evidence, I set it out in full:
When Detective Meehan tested the gun, the round did not discharge. He ejected it and noted that there was no firing pin mark on the primer. He loaded a second round with the same result. As there were no pin marks, he concluded that there was an issue with the firing pin. He further determined that the firearm was not functional.
Detective Meehan then made efforts to render the firearm functional. He started from the basis of someone who would not be familiar with firearms in general. He conducted a Google search, typing in: “my pistol won’t fire”. The results page directed him to a site named NRA Family. Upon clicking on that link, three options for the failure to fire were given, namely: an empty chamber, bad ammunition, problem with the firing pin.
In order to repair the firearm, it had to be disassembled. Again, he approached this from the perspective of someone who would not be familiar with firearms. As a result, he googled “disassemble NP 22”. This brought him to a YouTube video which he accessed. Using the steps provided by that video, he disassembled the firearm, taking the slide from the frame. He then looked inside the barrel at the spring assembly and removed both.
He then searched on Google how to replace a firing pin. Using the YouTube video he located, he followed the steps and was able to remove the firing pin from the breach. Upon examining the firing pin, he noted that the end was broken off.
All of the steps he described, up until removing the pin took approximately 30 minutes and did not involve any tools.
In order to remove the firing pin, he used a hammer and essentially a nail to knock the firing pin retention pin. Once the firing pin was removed, the officer examined the other components of the gun and concluded that everything else was functioning properly. In terms of a broken firing pin being problematic, he observed that it is a relatively common one.
Next, the officer described efforts to find a replacement firing pin. Again, he used Google and searched, “buy Norinko NP 22 firing pin”. One of the companies that appeared was Tenda Canada. When he called that company, they did not have the missing part. The officer then googled “gun parts suppliers” without any success with the companies that appeared.
Next, he googled “buy gun parts”. The first company which appeared was GunCo. The name Jason Spencer, a registered gunsmith, also appeared. At the time, this Ottawa company was closed due to the pandemic. As a result, the officer then called Cabela’s, who directed him back to GunCo.
When the business reopened, Detective Meehan was eventually told by Spencer that he did not have that particular firing pin and suggested he contact Marstar, a Canadian supplier, who would be cheaper than having one manufactured. Detective Meehan contacted that supplier and on May 27th, ordered the part for $27.69. When he ordered, he was told he did not need to provide proof of a firearms licence. The pin was received June 16, 2020.
15Using the same instruction employed in the disassembly, but in reverse, Detective Meehan inserted the new firing pin in 12 minutes. He used a nail-like tool to replace the firing pin retention pin but otherwise, only his hands. Once the gun was reassembled, he test-fired it successfully with the seized ammunition, concluding all was in working order.
16The trial judge then addressed the appellant’s two arguments: 1) that the steps that were required to identify the problem and make the gun operable required expertise beyond what an ordinary person would have and considerable time; and 2) that the companies that the Detective interacted with were more likely to assist police.
17Dealing first with the second argument, the trial judge rejected the suggestion that any of the companies would not deal with members of the public. The companies were businesses and there was no evidence that they were exclusive to police. She therefore concluded that the steps the Detective took could be taken by any ordinary member of the public.
18The trial judge also rejected the submission that the steps the officer took required particular expertise or involved considerable time. To the contrary, they were based on rudimentary Google searches such as “my gun won’t fire” and “buy gun parts”. The trial judge observed that while locating the proper firing pin took some effort, it was neither an onerous nor a lengthy process, and that the context was fixing a firearm, which has value.
19The trial judge summarized the time and effort involved, which she concluded was not significant: 1) disassembly and reassembly together took less than 45 minutes; 2) in addition there was some time to conduct internet searches and watch YouTube videos; 3) the part cost less than $30.00 and was received within a few weeks with no need for government paperwork or verifications.
20She therefore concluded:
… [T]he evidence establishes that the firearm at issue could be made operational through the straightforward installation of readily available parts in a relatively short period of time making it a firearm for the purposes of the offence of possession.
21On appeal, the appellant submits that the trial judge misapprehended and misapplied the legal test in reaching the above quoted conclusion.
22He argues that in arriving at this conclusion, the trial judge overlooked evidence of the need for expertise such as the number of Google searches the detective had to try, and the expertise he would have had to employ to conclude, for example, that he could use YouTube instructions for a different gun that looked like the appellant’s gun in order to disassemble it.
23He also argues that the case law requires that the missing part for the inoperable gun must be “easily obtainable” or “readily obtainable”. In R. v. Hasselwander, [1993] 2 S.C.R. 398, where the issue was whether a semi-automatic machine gun was capable of being converted to a fully automatic, Cory J. analogized to the purposive approach to the definition of firearm adopted by the court in Covin. In Hasselwander, the court held, at p. 416, that having “the potential to be readily converted to a fully automatic weapon” meant “in a relatively short time with relative ease”.
24The appellant submits that in this case, the needed firing pin was not “readily obtainable” because the detective only found a supplier based on a tip from the owner of a supply company whom he knew, and when he did order it, it took three weeks to arrive. He argues that the trial judge either overlooked this evidence or misapprehended it.
25I would not give effect to this argument.
26It is clear from the detailed reasons of the trial judge that she was fully conversant with the evidence and the test to be applied. She was aware that the process used by the detective did not result in a seamless and instant delivery of the replacement firing pin. However, given that the process involved the common practice today of using internet searches and YouTube instruction videos, together with some phone calls to locate the part, which was shipped from the U.S., the trial judge was entitled to conclude that the replacement part was readily available and that the time it took was a relatively short period of time: see e.g., R. v. Sebape, 2020 ONCA 475 (although the replacement firing pin was temporarily out of stock, there was sufficient evidence that the gun could be adapted for use as a firearm, within a reasonable time: at para. 5); R. v. Tarapaski, 2022 MBCA 74, 418 C.C.C. (3d) 364, at para. 33.
27I would therefore dismiss the conviction appeal.
(4) Analysis on the Sentence Appeal
28The only material before the sentencing judge was the appellant’s criminal record. The Crown sought an overall sentence of 7.5 years, reduced to 7 years to reflect the totality principle, and by 7 months to account for pretrial custody. The defence asked for a global sentence of 4 years and 3 months with credit of 9 months for pretrial custody, leaving an effective sentence of 3.5 years.
29In describing the circumstances of the offender, the trial judge focused on the fact that he was a recidivist with a criminal record including failure to comply with court orders, as well as a youth record for a weapons offence. In 2018, just over two years before the sentencing, he had received a 2.5-year sentence for possession of a loaded, prohibited or restricted firearm, as well as a weapons prohibition, which was the basis of the breach offence before the court.
30The sentencing judge noted that in 2018, the appellant was given a stern warning from the 2018 sentencing judge about recidivism and the consequences of violating weapons prohibitions. She recited that the appellant was youthful but had “a depressing history of offending since 2013.” She noted that he had the support of his family, that he was a new father, and that his current aspirations were to be present for his son. The mitigating factors were the appellant’s family support and his guilty pleas at the opening to the less serious counts.
31In fashioning the appropriate sentence, the sentencing judge reviewed the principles of sentencing set out in s. 718 of the Criminal Code: ensuring proportionality between the gravity of the offence and the degree of responsibility of the offender, accounting for aggravating and mitigating factors, and considering parity. She also referred to the purposes of sentencing of specific and general deterrence, rehabilitation, denunciation and the need to separate the offender from society, with the focus on denunciation and deterrence for firearms offences. In this case, specific deterrence was pertinent because the appellant was a recidivist offender.
32Taking into account the nature of the offence and the appellant’s background, in particular his criminal record, she found that the appropriate sentence for the possession offence was 5.5 years but reduced it to 5 years because the gun was not operable at the time of the offence, and applied a further deduction of 9 months for presentence custody and the hardships of the pandemic during that time.
33In addition, the sentencing judge imposed a sentence of one year consecutive for the breach of the weapons prohibition and one year concurrent for the breach of the ammunition prohibitions, plus 18 months consecutive for the dangerous driving count, 18 months concurrent for the flight from police, plus 90 days for each of the other breaches concurrent to each other, and 90 days consecutive for initially giving police a false name.
34Because the appellant was a youthful offender, the sentencing judge reduced the total sentence by a further 6 months (applied to the dangerous driving and flight from police counts), leaving an effective sentence of six years and nine months.
35The appellant’s sentence was imposed before this court released its decision in Morris [1], which instructed sentencing judges that they could consider social context evidence regarding the effects of anti-Black racism on the appropriate sentence in relevant cases. As a result, an Enhanced Pre-Sentence Report (“EPSR”) about the appellant was prepared for the purpose of a sentence appeal to this court.
36In Morris, the court recognized that anti-Black racism exists in our society and that, in certain circumstances, those affected by anti-Black racism may have reduced moral culpability or a greater potential for rehabilitation, thus warranting a reduction in their sentence. The court set out a number of guiding principles for sentencing judges to apply when assessing the impact of anti-Black racism on the moral culpability of the particular offender at para. 13:
- The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;
- Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;
- The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence;
- Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
- Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
- The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.
37In Morris, the accused, a 23-year-old Black man, ran from police and discarded his jacket which was later found with a loaded .38 calibre Smith & Wesson handgun. Two expert reports were tendered on sentencing as social context evidence. One, referred to as the Expert Report, discussed the existence, causes and impact of anti-Black racism in Canadian society, especially in Toronto. That report was also filed as evidence on this appeal as applicable to Ottawa as well. The court in Morris accepted the Expert Report and summarized its impact as follows at para. 39:
The report explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. These factors combine to leave many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair.
38The other was a report regarding “a Social History” of the accused, prepared by a clinical social worker. The purpose was to help to apply the general context information from the Expert Report to the accused’s particular life experiences, including the death of his father when he was seven, his close relationship with his mother, interactions with Children’s Aid, being stabbed, living in an unsafe community, and his perception of negative treatment by police and corrections authorities. He was fearful of his community and of police.
39In imposing a proportional and fit sentence, the court in Morris first focused on the gravity of the offence as one part of the proportionality analysis, and emphasized that carrying a concealed, loaded firearm in a public place in Canada is “antithetical to the concept of a free and ordered society”: at para. 68. The court reiterated that an offender’s personal circumstances including suffering from anti-Black racism do not diminish the seriousness of the offence, but can explain to some degree the reason for committing the offence and, in that context, can mitigate the offender’s degree of moral responsibility. It can therefore go to the sentencing objectives of specific deterrence and rehabilitation. Importantly, while there is no cause-and-effect requirement, there must be some connection between systemic racism and the offender’s criminal conduct. There is no automatic discount applied because anti-Black racism exists in the community: at para. 97.
40As in this case, in Morris, the accused explained his behaviour in arming himself by his fear of police and of his community. The court acknowledged the explanation, but clarified that it was only a limited mitigating factor because of the seriousness of the conduct and of the crime: at para. 101.
41The court also explained how interaction with police can be very different for members of different communities, and can be very adversarial and confrontational for young Black men in current society: at para. 103. That factor can be taken into account by a sentencing judge, as can the possibility that an offender’s limited education and low-level employment may be more reflective of institutional biases and systemic inadequacies than any lack of potential or interest on the part of the offender.
42The court summarized its analysis at para. 106:
In summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing. Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender’s life takes one important step toward the goal of equal justice for all.
43Finally, the court pointed out that while this context-sensitive approach to sentencing is not new, what is new is the judicial willingness to receive and act on the type of social context evidence in the two reports filed in that case.
44In addition, the court explained that “in considering the restraint principle, courts should bear in mind the well-established over-incarceration of Black offenders, particularly young male offenders.”: at para. 123. In that regard, where incarceration is necessary, the restraint principle applies when the court is considering the length of the custodial sentence that will be proportional in the circumstances, having regard to the seriousness of the crime and the circumstances of the offender.
(a) Application of the Morris principles to the sentencing process in this case
45The appellant sought to file the EPSR, which was prepared for the purpose of a sentence appeal two years after he was sentenced, following the release of this court’s decision in Morris. The Crown did not contest the admissibility of the EPSR as fresh evidence or its relevance to the issue of sentencing. I agree, and would admit the EPSR as fresh evidence on this appeal.
46The appellant is a 26-year-old Black man of Trinidadian and Haitian descent. His parents separated when he was a young child. His mother is university educated with a degree in business administration, and has worked in that field for about 20 years. His mother moved between Ottawa and Montréal every year until the appellant was 14, which impacted his ability to maintain friends and attend school consistently. The appellant played football until he was 18 or 19 but was unable to continue due to the cost involved.
47The appellant’s mother married his stepfather when the appellant was seven. He has two stepsiblings from that marriage and has a good relationship with them.
48The appellant’s mother separated from his biological father when the appellant was two years old because he did not have legitimate employment and was a drug dealer. His father was incarcerated for a time and released in 2008. The appellant had sporadic contact with him when he was between the ages of 5 and 12. The appellant reported that his father did not know how to give “father love”. His stepfather provided him with more guidance than his father did.
49In 2012, the appellant resided with his father in Ottawa after he was suspended from school. At that time his father had converted to the Muslim faith and treated the appellant strictly. As a result, the appellant left to live with his mother or his paternal uncle when he was between 17 and 19, because they allowed him a more permissive lifestyle. The mother reported that she sent the appellant to live with his father in Ottawa in order to get him away from gangs in Montréal.
50The appellant’s mother had a drinking problem at one point and attended Alcoholics Anonymous. She also struggled financially. She was on social assistance at different points while the appellant was growing up. They experienced homelessness when the appellant was 8 or 9 and lived in a shelter in Ottawa for a few months at that time because the mother was experiencing issues with her husband. They moved from the shelter to subsidized housing in the Caldwell neighbourhood of Ottawa, where they stayed for five months.
51The appellant’s mother described the Caldwell neighbourhood as a poor, dangerous neighbourhood. According to the appellant, the neighbourhood was known for rampant drug use, sex work and gang activity. Because of these concerning conditions, the appellant’s mother moved them back to Montréal after five months where they moved in with her mother, but clothing and food were lacking and the appellant went to food banks for assistance.
52At age 17, the appellant lived with his uncle on and off when he could not live with his father. His uncle lived in another low-income area of Ottawa where the appellant was directly exposed to gun violence. As a youth, the appellant engaged in fights, which he said was normal to him.
53The appellant described his Montréal friends as good choices, but in Ottawa he made poor choices including spending time with his paternal cousin and a family friend who brought him into a bad circle. When he was 17, he was involved in a fight, and a year later he was shot when leaving his job and sustained a gunshot leg wound. The appellant advised the author of the report that he has disconnected himself from his anti-social friends.
54In terms of employment, the appellant has held a series of jobs in inventory and stock-taking in large stores and in customer service positions in retail and call centres. The appellant attended a number of schools over the years. He experienced racism and differential treatment in grade seven at a Montréal high school that was predominantly white. He found that his teachers and school security were punitive towards him for his disruptive behaviour, but not towards his white classmates who acted similarly. At all his high schools, he felt that he was singled out by security guards for searches. He was expelled from his high school in Montréal when he was first in grade nine. He completed grade nine at another school and then attended Vanier College in Ottawa for a business course. After one semester at Vanier College, the appellant completed additional high school credits but did not continue his education after that.
55The appellant experienced a number of negative interactions with police in Ottawa and in Montréal. He felt he was harassed and targeted by police, including instances of being pulled over in the car. He believed that the Québec police officers with whom he interacted were racist and suspicious of him because he was Black, and that they treated him worse when they learned he had a criminal record. The appellant reported being pulled out of his vehicle by police during traffic stops in Ottawa.
56The appellant reported negative experiences with the police when he was shot. He said they denied him medical attention until he disclosed how he got the injuries and accused him of shooting himself. As a result of his experiences with police, he did not trust them to protect him or the Black community, which he explained was a precipitating factor in his decision to obtain a gun.
57In terms of his criminal record, the appellant has a 2013 youth conviction for extortion and possession of a weapon from Montréal. In 2017, he was convicted of failure to comply, assault, possession of an illegal substance and fraud under $5,000. In 2018, he was convicted of possession of a loaded firearm and failure to comply for which he received a sentence of 2.5 years, released in March 2019. After that, he continued to receive threats from individuals he had past conflicts and feared for his safety. He told the author of the report that he obtained a gun not to harm others but to protect himself.
58The appellant is in a relationship and he and his partner have a young son. His partner is devoted to the appellant and has confidence that he will live a positive life when he completes his sentence and returns home. He has expressed remorse, has taken courses while in penitentiary, is devoted to his child, and is determined to further his education and support his family. He has also developed insight into his past poor choices and understands that he must leave his past lifestyle behind.
59The experienced social worker who prepared the EPSR expressed the opinion, based on the report as well as on the 2008 Report by McMurtry and Curling on the causes of crime among youth and particularly Black youth, that the appellant was affected by anti-Black racism and disadvantage growing up. This was manifested by the lack of a constant positive father or father figure, frequently moving and changing schools, the influence of negative peers, exposure to crime and drug culture in some of the communities where his family lived, and negative interactions with police.
60The appellant is remorseful and intends to forge a new path in order to provide for his child and be a positive father for him. The author of the EPSR notes that he is intelligent and has family support.
61The appellant does not challenge the propriety of the sentence he received based on the seriousness of the crime and the other factors considered by the sentencing judge. The sole issue he raises is that the sentence should be reduced to reflect the impact of anti-Black racism in the context of the social factors in his upbringing that exposed him to police, led to his expulsion from high school and limited his education, and ultimately to a criminal lifestyle.
62In my view, it is clear from the appellant’s personal history as revealed in the EPSR, that he has been subjected to and affected by anti-Black racism throughout his youth and young adult years, and that it has contributed to distorted decision-making on his part including regarding his behaviour at school, his limited education, and his criminal behaviour.
63I agree, based on the EPSR and the application of the principles from Morris, that the effect of these factors is some diminution of his moral responsibility for the serious offences for which he was convicted and that there should be some reduction in his sentence to reflect it.
64The fact that the appellant is remorseful and has expressed the intention to change his lifestyle and to be a positive influence on his son, which expressions were accepted by the social worker who interviewed him 8 times by phone from the penitentiary, indicates that his prospects for rehabilitation are positive and that the need for specific deterrence is reduced. These factors were not known by the sentencing judge who did not have the benefit of the EPSR or any pre-sentence report.
65To summarize, the appellant’s offences were very serious and he was not a first-time offender. This warranted the significant sentence imposed by the sentencing judge, who did not have the information about the appellant’s background that has been provided to this court on the appeal in the EPSR. Applying the principles from Morris, the many experiences of anti-Black racism, both direct and consequential that have affected the appellant, explain to some extent his conduct and somewhat reduce his moral culpability for the offences. The appellant’s penitentiary sentence is a significant one for a young man. In my view, a reduction of one year will result in a sentence that remains proportionate, but properly reflects the effects of anti-Black racism on the appellant in accordance with Morris.
(5) Result of the Sentence Appeal
66I would grant leave to appeal sentence, and reduce the global sentence imposed by 1 year for a total sentence of five years and nine months on appeal.
67The parties agree that the sentence was incorrectly recorded on the information by recording the sentences for dangerous driving and flight from police as 18 months rather than the reduced amount of 12 months each, concurrent, imposed by the sentencing judge. That correction shall be made in order to accurately reflect the original sentence on the information as a total of six years and nine months. That sentence has been reduced on appeal to five years and nine months. The ancillary orders imposed by the trial judge stand.
“K. Feldman J.A.”
“I agree. Coroza J.A.”
68I have had the benefit of reading my colleague’s excellent reasons dismissing the conviction appeal and allowing the sentence appeal with a one-year reduction in the six-year, nine-month global sentence imposed by the sentencing judge. I agree with my colleague’s reasons for the dismissal of the conviction appeal. I also agree with her disposition of the sentence appeal. However, I write separately to explain, in light of the fresh evidence of the EPSR, which was not before the sentencing judge, why the original sentence imposed by the trial judge is no longer fit and appellate intervention is warranted.
(1) Standard of Review
69This court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, did not alter the overarching deferential standard of review that an appellate court must apply on a sentence appeal. As the Supreme Court instructs in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11 and 41-44.
70The only issue here is whether the sentence is demonstrably unfit in light of the fresh evidence and in the context of all other evidence and applicable sentencing principles and factors. The appellant does not assert that the sentencing judge made any error in principle or that the sentence was demonstrably unfit when it was imposed.
71There is no issue that the sentencing judge properly gave prominence to the sentencing principles of denunciation and deterrence given the nature of the present offence and the appellant’s recidivist history of weapons offences and breaches of recognizances, probationary and prohibition orders: Morris, at para. 71; R. v. Nolan, 2019 ONCA 969, 150 O.R. (3d) 647, at para. 69.
72Nor does the appellant submit that, on the basis of the record before her, the sentencing judge failed to consider a relevant factor or overemphasized an appropriate factor. The appellant acknowledges that the sentencing judge did not have the benefit of this court’s decision in Morris and does not fault the sentencing judge for failing to consider the issue of anti-Black racism as a factor in determining the appropriate sentence when she was not asked to do so and no foundation was laid before her to make this finding: R. v. S.M., 2023 ONCA 417, at para. 27, leave to appeal to S.C.C. requested, 40899; R. v. Green, 2021 ONCA 932, at para. 21.
73The appellant submits that in light of the fresh evidence of the EPSR, the global sentence should be reduced to 4 years. The respondent submits that the EPSR does not justify reduction of the sentence imposed.
74As the appellant’s argument for setting aside the sentence rests on the fresh evidence of the EPSR and its resulting impact on the fitness of the six-year and nine-month sentence imposed by the sentencing judge, in these circumstances, this court’s powers on appeal are as set out in s. 687(1) of the Criminal Code, R.S.C. 1985, c. C-46, as follows:
687(1) Where an appeal is taken against sentence, the court of appeal shall, unless the sentence is one fixed by law, consider the fitness of the sentence appealed against, and may on such evidence, if any, as it thinks fit to require or to receive,
(a) vary the sentence within the limits prescribed by law for the offence of which the accused was convicted; or
(b) dismiss the appeal. [Emphasis added.]
75Accordingly, this court may intervene on this sentence appeal if the sentence imposed by the sentencing judge is demonstrably unfit in all the circumstances, including the impact of the fresh evidence admitted on appeal. It is well-established that a sentence is “demonstrably unfit” in all the circumstances where it constitutes an unreasonable departure from the overarching proportionality principle, set out in s. 718.1 of the Criminal Code, that a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Lacasse, at para. 53. The expression “demonstrably unfit” reflects a “very high threshold that applies to appellate courts when determining whether they should intervene”: Lacasse, at para. 52.
76This standard of review is unchanged in the context of fresh evidence. In R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, the Supreme Court stated that “[i]f the fresh evidence is admitted, the court of appeal must again consider its probative value as well as the probative value of all the other evidence in order to determine whether the sentence imposed by the trial judge was ‘demonstrably unfit’”: at para. 24.
77Even where there is no error, admissible fresh evidence that was not before the sentencing judge may affect the fitness of the sentence. As this court instructed in R. v. McNeil, 2020 ONCA 595, reconsideration of a sentence may be warranted where “for reasons other than an error by the sentencing judge, relevant information…was not available at the time of sentencing, and there are grounds to admit it as fresh evidence on appeal”: at para. 28. Fresh evidence should be considered alongside the evidence that was before the sentencing judge, as it may impact the weighing of sentencing principles and fitness of the sentence imposed: R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at paras. 109 and 113; R. v. Kunicki, 2014 MBCA 22, 303 Man. R. (2d) 278, at para. 58.
78This is such a case. The sentencing judge was provided with scant information about the appellant. The sentencing judge had no details of his personal circumstances other than his youthfulness, family support, and recent parenthood. His trial counsel submitted that “[t]here aren’t a whole lot of other mitigating factors.” As my colleague has reviewed, the EPSR fundamentally belies that submission.
(2) Fitness of the Sentence
79The task of an appellate court in assessing the fitness of a sentence in light of fresh evidence was helpfully described by the Québec Court of Appeal in Belance c. R., 2011 QCCA 137, at paras. 68-69, leave to appeal refused, [2011] S.C.C.A. No. 121:
[Translation [2]]
68Therefore, an appellate court must repeat the exercise and consider whether the sentence is “demonstrably unfit” in light of the evidence as a whole, including the fresh evidence, whose probative value must be sufficient to have been admitted as such. Of course, it goes without saying that the deference due to the trial judge’s findings of fact is no less relevant in this second analysis.
69The appellate court must therefore keep the trial judgment in mind and must not solely limit itself to the sentence it considers appropriate. Indeed, before it may intervene, the appellate court must find that the sentence imposed at trial was demonstrably unfit in light of the fresh evidence. [Emphasis added.]
80EPSRs are relatively new and “differ from regular pre-sentence reports in that they are much more detailed and focus on the particular experiences of racialized Canadians”: R. v. S.B., 2023 ONCA 369, 426 C.C.C. (3d) 367, at para. 48, leave to appeal to S.C.C. granted, 40873 (November 23, 2023). EPSRs provide social context evidence relating to an offender’s life experiences that “may be used, where relevant, to mitigate the offender’s degree of responsibility for the offence” or to craft a sentence that best balances the principles and purposes of sentencing: S.B., at para. 46. As this court explained in Morris, at para. 79:
The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.
81The court can take judicial notice of the systemic factors that likely shaped the appellant’s engagement in criminal activity, including “poverty, discrimination in employment opportunities, and the intergenerational effects of the child welfare system”: R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, at para. 37, citing Morris, at paras. 13, 39, 42 and 123.
82As this court indicated in Morris and subsequent cases, the information contained in an EPSR does not give rise to a simple “discount” with respect to the sentence: Morris, at para. 97; R. v. Abdulle, 2023 ONCA 32, 166 O.R. (3d) 307, at para. 36, leave to appeal to S.C.C. refused, 40727 (September 21, 2023); R. v. Bakal, 2023 ONCA 177, at para. 65. Rather, it is a mitigating factor that a sentencing judge may consider in arriving at an appropriate sentence: Morris, at paras. 13 and 97-99. Any mitigating effect of the information contained in the EPSR must be assessed together with all the other requisite objectives, factors and principles to be considered on sentencing, including those set out in ss. 718, 718.1 and 718.2 of the Criminal Code: Morris, at para. 56.
83In particular, the impact of the EPSR cannot alleviate the seriousness of the offences in issue: Morris, at paras. 75-77. It may, but does not automatically, serve to mitigate an offender’s moral culpability in an appropriate case: Morris, at paras. 75-76. As this court explained in Morris, at para. 77:
It is important to preserve the distinction between factors relevant to the seriousness or gravity of the crime on the one hand, and factors relevant to the offender's degree of responsibility on the other. Unless the distinction is maintained, the proportionality principle may be misapplied. A sentence, like the sentence imposed here, which wrongly discounts the seriousness of the offence to reflect factors which are actually relevant to the offender's degree of responsibility, will almost inevitably produce a sentence that does not adequately reflect the seriousness of the offence and, therefore, fails to achieve the requisite proportionality.
(3) The Sentence is No Longer Fit
84Having considered the contents of the EPSR, together with all the evidence as a whole and the other relevant factors on sentencing, I am persuaded that the sentence in this case is demonstrably unfit in light of the fresh evidence. Had the appellant’s experiences with anti-Black racism along with his other personal circumstances been before the sentencing judge, the outcome would have been different. As my colleague stated, the fresh evidence has the effect of somewhat reducing the appellant’s moral culpability for the offences and highlighting the positive prospects for rehabilitation.
85I come to this conclusion having taken into account the serious, aggravating factors in this case.
86There is no question that the appellant is a recidivist who committed serious offences. There is also no question, as the appellant himself acknowledged to the writer of the EPSR, that he was given opportunities to turn away from his criminal lifestyle and failed to do so. The appellant carried a weapon or a firearm as part of his criminal lifestyle. The appellant acknowledged to the writer of the EPSR that “his decision to possess a firearm was poor, but [he] felt that he had to protect himself from conflicts or ‘beefs’ he had within his community.” His criminal record suggests that the appellant carried a weapon or firearm to carry out other offences, namely, as “a tool of his … criminal trade” at the “true crime end of the spectrum”: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 51-52, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. His first conviction, for possession of a weapon, was when he was around 15 years old. In 2018, before the most recent conviction, he received a two-and-a-half-year sentence for possession of a loaded firearm: the appellant pled guilty in relation to an offence that occurred where he was in the process of selling a firearm.
87Deterrence and denunciation are paramount in firearm cases. For s. 95 recidivists who have breached a s. 109 prohibition order, the caselaw supports a penitentiary sentence in the range of four to nine years of imprisonment: R. v. Graham, 2018 ONSC 6817, at paras. 39-42, aff’d 2020 ONCA 692, 474 C.R.R. (2d) 137; R. v. Khalid, 2022 ONCA 501, at para. 33; R. v. Charles, 2013 ONCA 681, 117 O.R. (3d) 456, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, at paras. 23-24 and 27-29. Similarly, the imposition of consecutive sentences for the appellant’s breaches of prohibition and other orders is well-founded in the caselaw: see e.g., R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598, 132 O.R. (3d) 510.
88I turn to consider the mitigating factors set out in the EPSR. The EPSR repeats the factors presented before the sentencing judge of the appellant’s relative youth, the appellant’s desire to be a good father to his young son and the support of his family. Importantly, however, as my colleague has detailed, the EPSR also provides significant information about the appellant’s life experiences and background that were not before the sentencing judge, including, most significantly, the appellant’s experiences with, and the impact of, anti-Black racism and the negative influences on his life. The writer of the EPSR observed that “[o]n some level, it seems that lack of male direction was a factor that contributed to [the appellant’s] outcomes. Other factors like [his] peers and environment were equally influential elements that contributed to his involvement with the criminal justice system.”
89The EPSR refers to his work record and the steps the appellant has taken towards rehabilitation, namely, courses the appellant was enrolled in or has completed while in custody, including a parenting program and a course about the “revolving door” for inmates, and certificates for WHMIS and Working at Heights. Again, importantly, the writer of the EPSR notes the appellant’s developed sense of maturity, ownership of his poor choices and expression of remorse. She concluded:
[The appellant] is intelligent and has many skills that can enable him to contribute to society. His involvement in this offence and crime in general have been some of his more unfortunate moments driven by negative influences and poor choices. It is [his] hope that he can move forward past this experience and live a better life, achieving and doing positive things for himself and his son. [He] has the ability to meet the goals he has set for himself and is determined to stay out of the path that would lead him back to be involved in the criminal justice system.
90While the EPSR cannot be used in isolation to overwhelm the sentencing analysis, having considered the EPSR along with the evidence as a whole and the relevant factors on sentencing, the mitigating effects of the additional information provided in the EPSR that was not before the sentencing judge render the sentence demonstrably unfit.
91For these reasons, I would dismiss the conviction appeal. I would allow the application to admit fresh evidence. I would grant leave to appeal the sentence, allow the appeal and reduce the sentence by one year. This results in a global sentence of 5 years and 9 months. This represents a significant sentence and gives prominence to the principles of deterrence and denunciation while also giving appropriate effect to the fresh evidence, in light of all the evidence, and the other sentencing factors.
92The indictment should be revised to reflect a global sentence of 5 years, 9 months, in accordance with the Crown’s concession and this court’s decision.
Released: December 8, 2023 “K.F.”
“L.B. Roberts J.A.”
[1] A different person. [2] These passages from Belance were translated and cited to with approval by the Québec Court of Appeal in Aullaluk v. R., 2022 QCCA 1081, at para. 61, leave to appeal to S.C.C. refused, 40418 (July 27, 2023).
