CITATION: R. v. Mingo, 2016 ONCJ 556
DATE: 2016.06.29
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— and —
TYRELL MINGO
Before Justice Fergus ODonnell
Reasons for Sentence Delivered on 29 June, 2016
Mr. P.M. Alexander................................................................................................ for the Crown
Mr. J. Miglin.............................................................................. for the defendant, Tyrell Mingo
Fergus ODonnell, J.:
Overview
About sixteen months ago Tyrell Mingo did something very foolish. About four months ago he did something rather sensible. My job today is to decide what the consequences of those two choices should be.
There is no "good" outcome for Mr. Mingo here, only a choice between an unpleasant outcome and a more unpleasant outcome, because the very foolish thing Mr. Mingo did was possessing a loaded, prohibited firearm, which is an extremely serious offence and which is cause for great concern. That is true not only throughout this city but, especially so in neighbourhoods such as Mr. Mingo's, which bear far more than their share of gun violence.
The prudent thing Mr. Mingo did was pleading guilty to that charge after his preliminary inquiry, which was basically a discovery process in relation to two police officers to determine if there might be a viable Charter of Rights argument for Mr. Mingo to rely on. The preliminary inquiry was short and focused.[^1]
There was no viable Charter of Rights argument to be called in aid of Mr. Mingo here. What happened here was simply good police work in which mercifully nobody got hurt despite the fact that all three people involved had loaded firearms, only two of them lawfully so. Mr. Mingo should be thankful that things ended as they did because cases like this have a real potential to end up in funeral homes rather than courthouses. I have referred to there being no good outcome for Mr. Mingo as a result of today's proceedings, but it is just as true that there could have been a much worse outcome for Mr. Mingo and those who care for him, almost a dozen of whom showed up for his sentencing hearing.
On 24 February, 2015 several members of the major crime unit were en route to execute a search warrant when they were diverted by a radio call. That radio broadcast was based on a 911 call to the effect that a group of people, one armed with a gun, were trying to force their way into a residence at 10 Turf Grassway in Toronto. There was the possibility that someone had been shot. A group of people dispersed suddenly as soon as the police arrived. Detective Constables Boyce and Griffin ran into an underground parking garage that would be one possible avenue of escape for members of that group. They saw Mr. Mingo running toward them, but he suddenly turned sideways into a parking stall. These are individual parking stalls so Mr. Mingo was trapped. He spent some time doing something behind the parked car and took a bit longer coming out than the police were comfortable with given what they had observed before he bolted into the stall. What they had observed was behaviour that struck me as objectively consistent with some of the "characteristics of an armed person".
On arrest the police found a .357 calibre, snub-nosed revolver with six rounds of ammunition in the cylinder. D.C. Boyce noted that it was in Mr. Mingo's second pair of pants in the area he had been holding awkwardly as he ran and that it was hard for D.C. Boyce to remove, which might have explained what Mr. Mingo was trying to do while hiding behind the car and failing to come out right away.
I stress that there is no evidence that Mr. Mingo was involved in the apparent home invasion that led to the original 911 call to the housing complex.
Mr. Mingo said that he had the gun for protection because he has lost several friends through violence. At age fifteen, two of his friends were shot. His mother said that as the only male in the house he may have felt an obligation to be in a position to protect the family. I note that all of this was said to the author of the pre-sentence report. There was no evidence called in respect of those factors. This is in contrast to one of the cases relied on by Mr. Miglin, in which the defendant, a drug-dealing eighteen year old, testified that he carried the gun because he had been shot in the chest during a robbery: see R. v. Prosser, 2014 ONSC 6466.
Sadly, the reasons Mr. Mingo and his mother gave to the probation officer for his having the gun are not inherently implausible. Entirely irrelevant to his guilt of the offence, but not implausible. The simple, and sometimes tragic, reality, however, is that expanded possession of firearms, even for self-protection, can itself constitute a danger to the community. This city has known its share of entirely innocent victims of crossfire in gunfights.
Mr. Mingo was eighteen at the time of the offence. He is barely twenty now, the imposition of sentence having been adjourned to shortly after his birthday. He has no previous record. He is one of four children. His mother described him as a quiet and cooperative son who gave her no problems at home and who was close to her.. His father left when Mr. Mingo was about three or four years old. There is not much, if any of a relationship between them and his father did not provide financial support.
Mr. Mingo switched high schools part way through; he did alright academically, but there were some behavioural issues and some issues with other students. He said he did not finish grade twelve because of his bail conditions. I think there is merit to Mr. Alexander's suggestion that, given Mr. Mingo's actual bail conditions, that utterance to his probation officer was a bit lame. Otherwise, though, he appeared to be very forthcoming in his discussions with the author of the pre-sentence report. He is young and, as such, does not have much of a work history, but he got favourable reviews from a part-time and summer job. His two letters of reference were positive. He has a supportive family, who were in court with him.
Mr. Alexander, for the Crown, asks for a sentence of four years' imprisonment in the penitentiary for Mr. Mingo. He characterizes the facts in the cornerstone constitutional case of R. v. Nur, 2015 SCC 15, as being strikingly similar to Mr. Mingo's case. That is a fair observation. Both are similar in age (Mr. Nur was a year older) and the circumstances leading to their arrests are not materially different. Neither had a criminal record and both pleaded guilty. The trial judge imposed a sentence of forty months on Mr. Nur in light of the "inflationary floor" that the then three-year mandatory minimum sentence created for anyone convicted of a Criminal Code s. 95(1) offence prosecuted by indictment.
The Court of Appeal and the Supreme Court of Canada both found the mandatory minimum sentence to violate the rule against cruel or unusual punishment, but both courts felt that the forty-month sentence imposed on Mr. Nur was a fit sentence.
The sole material differences between Mr. Mingo and Mr. Nur are the nature of the weapon (which Mr. Alexander conceded, Mr. Nur having been in possession of a .22 calibre semi-automatic pistol with twenty-four rounds that could have been discharged in three-and-a-half seconds) and the fact that Mr. Nur was detained in custody and, in light of his pre-sentence custody, was sentenced to a day in jail and two years' probation. Mr. Mingo was released on bail after three days and has been on bail ever since, a period of about sixteen months. The principal characteristic of his bail was a house arrest except to attend Monsignor Fraser High School or in the presence of either of his two sureties. There is no suggestion of any breach of the bail.
Mr. Miglin asks for an eighteen month sentence for Mr. Mingo. He points to the earliest reasonable plea that one could expect by a person who was about as close to being a young offender as one could be at the time of the offence. He suggests that the eighteen month sentence is reached by applying allowances for the plea and for Mr. Mingo's bail conditions to what Mr. Miglin says is a two year starting point.
Mr. Miglin was quite candid about the fact that while there is much to be said in Mr. Mingo's favour and about his prospects for rehabilitation and family support, it could also fairly be said that he could have tried harder insofar as continuing with his education over the past year or so is concerned. Realistically, that contention by Mr. Mingo about being unable to finish school struck me as a cop-out. As a result of that wasted year, Mr. Mingo will be that much further behind in his rehabilitation once he is released from custody. It was a foolish choice on his part.
Every sentence must seek to accomplish a number of objectives while taking into account the nature and seriousness of the offence and the character, circumstances and prospects of the offender. Some of the objectives conflict with one another and some types of cases call for more emphasis on one principle rather than another. This is further complicated by the fact that the details of the offence and of the offender, including his or her criminal antecedents, if any, cover a vast territory. Offences such as Mr. Mingo's are of great concern to society. Our society has made a very deliberate and long-standing choice with respect to firearms ownership. That choice is in stark contrast to the choice made by the great republic to our south and the beneficial impacts of Canada's choice compared to theirs are reflected in a drastically lower cost in lives lost and families shattered. That being said, gun crime in Canada remains a matter of enduring concern.
I am struck by the words of Justice Molloy in R. v. Ferrigon, 2007 16828 (ON SC), about the seriousness of gun crime:
[25] ...Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.
That does not mean that Mr. Mingo is the same as a person who carries a loaded firearm to shoot a rival or to rob a convenience store, but clearly the weapon that Mr. Mingo possessed is not the tool of the Olympic sharpshooter or the moose hunter. It is the easily concealed but lethal weapon best suited for one human being to intimidate, wound or kill another, even if Mr. Mingo's purpose for possessing it was to prevent someone else from hurting or killing him. It is for that reason that the principles of specific and general deterrence, along with denunciation, must play a larger role in relation to this offence than they might play in relation to other offences. At the same time, even for offences like this, the competing sentencing principles of rehabilitation and reparations to society for harm done are not extinguished by the nature of the crime. Neither is the principle that jail should be used with restraint, in particular in relation to youthful first offenders like Mr. Mingo. The sentence I impose must also consider the fact that Mr. Mingo has pleaded guilty at a reasonably early point, after a preliminary inquiry that was focused and economical.
I am also satisfied that the sentence I impose should take into account the fact that Mr. Mingo has spent about sixteen months on a house arrest bail while facing his charges. There is much truth to Mr. Justice McPherson's epigram on this subject to the effect that "bail is not jail"[^2] and it is important that courts and counsel be vigilant to ensure that spurious claims for credit not be heeded, but, although it does not rhyme, just as "bail is not jail", house arrest is not unalloyed freedom.
In this case, Mr. Mingo was required to stay home other than for court, lawyer's appointments, attendance at school or while out with either of his sureties. No evidence was called on the precise impacts of his house arrest on Mr. Mingo. I agree with Mr. Miglin that to some extent the impacts of house arrest can be inferred, but every inference must be drawn from known facts, failing which it would be speculation rather than reasonable inference. In this case, as in any other, I can infer that being housebound for over a year unless one was with one's sureties would be limiting. However, given that for all but a few months of that time Mr. Mingo had the option to breathe fresh air, socialize and otherwise escape the four walls of his home by the simple mechanism of attending school, I can only infer that Mr. Mingo wasn't going too "stir crazy" as a result of his bail conditions. I would assess the credit to be given for the bail conditions in this case as slight to moderate. If the actual impacts were greater than that, I have not heard it. If the actual impacts were greater than that, it would seem to me that they were largely self-inflicted and arose not so much from the house arrest conditions but rather from Mr. Mingo's persistent choice not to avail himself of a very, very large exception to the house arrest.[^3] I note that in Prosser, supra, Mr. Prosser testified about the precise effects of his house arrest on him, a house arrest that was about double the length of Mr. Mingo's bail.
I have had several cases cited to me in the course of argument, some from appellate courts, some from trial courts. Such cases are helpful insofar as they provide insight and in some cases direction about what factors to consider, how to weight them and so on. What no case does is tell a sentencing judge what is "the" correct sentence for the case before him. That is because, other than in the case of first degree murder, there is no such thing as a single correct sentence.
A judge seeks to impose a sentence that he considers to be right and that fits within the appropriate range of sentence dictated by the Criminal Code and the authorities. A different judge, applying precisely the same considerations, could impose quite a different sentence. And it could very well be that neither of them was wrong, because as I have said there is no such thing as "a" single correct sentence. Just as my GPS offers me multiple ways to get to a destination, there are multiple ways to route, or to structure, a sentence that is fit and that takes into account the offence, the offender and the principles of sentencing. Thus, when I read the Supreme Court's decision in Nur, supra, I do not read it as saying that forty months was "the" correct sentence for Mr. Nur, simply that it was a fit sentence, one within the appropriate range. The court might very well have given its approval to a sentence higher or lower if the trial judge had imposed such. Likewise, Mr. Miglin referred me to an endorsement of the Court of Appeal in which an eighteen-month sentence for possession of a loaded, restricted firearm was upheld. When considering a case like that in determining the proper range of sentence one must keep in mind the very great deference appellate courts give to trial judges on sentence appeals, especially Crown sentence appeals, as well as the language used.[^4] In that case (the Court of Appeal endorsement), the panel twice in one paragraph described eighteen months as a "very low sentence".
Perhaps the most helpful comment I have come upon is from Nur, supra, itself, at paragraph 82:
[82] Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.
Mr. Mingo is an "outlaw" in the sense that his conduct takes him outside the law, but not in the sense of someone who has dedicated his life, short as it has been, to any persistent or wholesale or enduring rejection of society's values. He is not, in the words of Justice Doherty cited by the Supreme Court, one who carries a firearm "as a tool of his or her criminal trade". Neither is he the responsible, licensed gun owner who has tripped over a regulatory requirement. Rather, he falls in the middle of the spectrum, in the words of the Chief Justice, "the person whose conduct is less serious and poses less danger" and for whom the then mandatory minimum sentence might have been disproportionate, but not grossly so, as in not so disproportionate as to violate the Charter of Rights.
I do not agree with Mr. Miglin that the starting point for Mr. Mingo is two years, from which should be deducted credit for his guilty plea and house arrest. I note that in the context of a "mandatory minimum" regime, which was the object of the Chief Justice's comments above, a plea of guilt was already "built in" to the mandatory minimum since that established a new floor for sentencing. I also note that Mr. Nur himself pleaded guilty, even if he did have a Gardiner hearing at which he enjoyed mixed success. I also note, as I said earlier, that the credit due for Mr. Mingo's bail conditions is rather modest in these circumstances.
On the other hand, I do not see how, if Mr. Nur is to be seen as the benchmark according to the Crown, Mr. Mingo should receive a sentence of forty-eight months compared to Mr. Nur's forty months.
I conclude, therefore that while Mr. Nur's forty-month sentence was considered fit by the Court of Appeal and the Supreme Court of Canada, that does not mean that a lesser sentence would necessarily be unfit, or that a sentence structured differently would be unfit. I would have no problem sentencing Mr. Mingo to a sentence in the three year range except for the fact that I believe that a more structured sentence could send the same message of deterrence and denunciation to Mr. Mingo and to the public generally, while doing less damage to Mr. Mingo and his chances for rehabilitation and while allowing him to provide meaningful reparations to society and to be under community supervision for a prolonged time. At the newly minted age of twenty years old, Mr. Mingo is, after all, still very much a work in progress.
The sentence that I consider best suited to optimize the accomplishment of all of the goals of sentencing while recognizing the mitigating factors in Mr. Mingo's favour is as follows:
Mr. Mingo will serve a sentence of two years less a day in the reformatory.
Upon his release, he will be on probation for three years. I am of the view that the maximum period of probation is appropriate given his youth and need for guidance and the seriousness of the offence.
He shall report to probation within seven days of his release from custody and thereafter as directed by probation.
He shall live at an address approved of by probation.
He shall attend for counseling as directed by his probation officer including life skills counseling.
He shall make reasonable efforts to complete his high school education, starting at the earliest possible opportunity upon his release from custody.
He shall make reasonable efforts to maintain appropriate employment and/or education throughout the period of his probation order.
He shall perform 240 hours of community service, starting not later than 45 days after his release from custody, at a rate of not less than ten hours per month. All of the community service hours will be completed within the first eighteen months of the probation order. In my opinion this form of reparations to society is an important component of the overall fitness of the sentence and Mr. Mingo's previous involvement in after school programmes is a promising start.
He shall not possess any weapons as defined by the Criminal Code.
He shall sign releases to allow probation to monitor his compliance with any term of this order.
There will be an order pursuant to s. 109 of the Criminal Code for life in relation to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition and for fifteen years from the date of Mr. Mingo's release from imprisonment for this offence in relation to any other type of firearm, or any cross-bow, restricted weapon, ammunition or explosive substance.
The offence under s. 95(1) of the Criminal Code falls within the basket clause as a secondary offence for the purpose of requiring Mr. Mingo to provide a sample of his DNA for inclusion in the DNA databank. Although he is young and has pleaded guilty, the seriousness of the offence is such that it seems to me there is no room for reasonable argument about where the balance lies between his privacy interest and the public interest in the databank. He shall provide a sample of his DNA.
There is a mandatory victim surcharge of $200. If it cannot be paid within the prescribed period of sixty days, I shall hear submissions about extending time now rather than waiting until the sixty days is over.
[^1]: The preliminary inquiry was not a waste of time. Mr. Mingo went into it facing two additional very serious charges that the Crown did not proceed upon by the time the preliminary inquiry was over.
[^2]: R. v. Ijam, 2007 ONCA 597, at para. 36.
[^3]: Put simply, Mr. Miglin had the right to attend school under his bail order. If he wanted to change schools, he could easily have brought an application to vary the bail, just as he had brought an application to vary his residence.
[^4]: See, e.g.: R. v. Shropshire, 1995 47 (SCC).