Ontario Court of Justice
Between:
Her Majesty the Queen
C. Lindo-Butler, for the Crown
— And —
Toray Holman
G. Tomlinson, for the accused
Heard: October 19, 2017
FELDMAN J.:
Introduction
1I found Toray Holman guilty of the following offences: possession of a loaded restricted firearm; breach of a prohibition order; breach of probation; unauthorized possession of a firearm in a motor vehicle; and possession of a firearm knowing its possession is unauthorized.
2Surveillance officers observed Mr. Holman enter a taxi carrying a bag over his shoulder, later transferring to a friend's car following a meeting in a gas station. That vehicle was stopped by the police. An officer found a loaded firearm in the bag with one bullet in the chamber. The gun was ready to fire. Two additional magazine clips with ammunition were also discovered. I did not accept the defendant's evidence that he was unaware he had a firearm in his bag.
3Mr. Holman was 26 at the time of these offences. He has a positive relationship with his mother. His father, with whom he was close, was murdered in 2010 in Jamaica. He has criminal convictions commencing in 2014 that include fail to comply with recognizance, obstruct peace officer, possession of property obtained by crime and uttering threats. He says he made poor choices in associating with negative peers in the Malvern community.
4To his credit, while in custody, Mr. Holman took education courses, leaving him two credits short of completing high school. He hopes now to obtain his diploma and learn a trade in college.
5Ms. Lindo-Butler, for the prosecution, submits that a global sentence of 4 ½ years for these offences, less pre-trial custody, is necessary given the seriousness of the offences and the aggravating factors apparent in the circumstances.
6Mr. Tomlinson, for the accused, submits that a global sentence of 3 years, less pre-trial custody, would satisfy the appropriate sentencing principles, while accounting for Mr. Holman's positive rehabilitative prospects.
An Exemplary Sentence for s. 95(1) Offences
7The authorities indicate that the gravity of possessing a loaded firearm is high. In most cases, a penitentiary term is appropriate.
8In R. v. Nur, 2013 ONCA 677, the 19–year old accused was found near the entrance of a community centre in a high crime area. As police arrived, he fled, during the course of which he threw away a loaded handgun for which he had no license.
9Doherty J.A. said, at para. 206: "individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation".
10Of significance, he went on to say that in this case, despite mitigating factors, the accused could well have received a sentence of three years regardless of the constitutionality of the three-year minimum penalty.
11In R. v. Smickle, 2014 ONCA 49, the court stated, at para. 19, that "most s. 95 offences will attract a penitentiary term even for first offenders" and even "less serious" versions of the offence, such as in this case"will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders". Here, the accused was found with a loaded cocked handgun merely posing inside an apartment, behaviour viewed as presenting a serious and immediate risk to others. The court considered two years less a day to be an appropriate sentence.
12In R. v. Browne, 2014 ONSC 4217, the accused was found at his residence in possession of a loaded prohibited semi-automatic firearm. Justice Campbell said, at para. 25: "the criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto… These firearms are almost invariably tools employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death."
13Justice Campbell went on to say that such possession "must be met with custodial sentences that proportionally reflect the gravity of the offense and appropriately stress the need to denounce and deter such crimes. The public must be adequately protected". He imposed a sentence of three years.
14Finally, in R. v. Nguyen, [2017] O.J. No. 3962 (Ont. S.C.), the accused was investigated while in possession of cocaine and a loaded prohibited firearm that had one round in its chamber. He had favourable rehabilitative prospects. Justice Kelly gave voice to the common sense notion that the only reason one might possess a loaded firearm was to use it and that it was capable of causing great harm. In this regard, she said, at para. 30, that "firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons".
15Justice Kelly felt that 3 years was the appropriate sentence, but imposed 2.5 years given totality concerns, as well as being mindful of the direction of Rosenberg J.A. in R. v. Borde, that a "first penitentiary sentence should be as short as possible".
16Beyond totality concerns, there is nothing in Mr. Holman's situation to distinguish it from the realistic approach in these cases. There is little in the circumstances to warrant consideration of the lower end of the range.
Breach of the Weapons Prohibition Order
17This important court order serves to protect the public from future harm by deterring those subject to it. It is only by credible threat of sanction that it can be effective, failing which the potential for harm to innocent members of the community is increased.
18With this in mind, I am of the view that, subject to exceptional circumstances and considerations of totality, any disposition for a breach should be consecutive to other sentences that involve weapons.
19This was the view of Epstein J., as she then was, in R. v. Manning, [2007] O.J. No. 1205 (Ont. S.C.), where she said, at para. 25, that making such sentences concurrent would render the offence of violating the prohibition superfluous.
20Similarly, in Browne, supra, Justice Campbell indicated, at para. 28, that in cases involving such a breach, where sentences are concurrent"the accused would effectively receive no greater punishment as a result of his or her clear violation of a previous court order". In his view, such a breach requires an additional sanction in order that offenders understand that they will face real consequences for their behaviour. It is of note that he imposed a sentence of 6 months for this offence.
Enhanced Credit
21There is no issue that Mr. Holman receive pre-sentence credit for time spent in custody at a rate of 1.5: see R. v. Summers, 2014 SCC 26. However, in addition, Mr. Tomlinson submits that enhanced credit is warranted for the time his client spent under lockdown for close to half the time he was housed at the Toronto South Detention Centre (TSDC).
22In R. v. Duncan, 2016 ONCA 754, the court held, at para. 6, that"in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1:5 credit referred to in s. 719(3.1). In Duncan, additional credit was denied because the applicant failed to call evidence of any adverse effect on him of being confined to his cell over many days.
23By contrast, Mr. Holman called statistical evidence of lockdowns at the TSDC caused mostly by staff shortages. In addition, he testified about the effect on him of these conditions.
24On the evidence, the defendant was in custody at the TSDC for 409 days, 193 days of which were spent in lockdown, 65 days of which were partial. The court in Duncan viewed such confinement as "worrisome". As of this date, the defendant has spent 463 days in pretrial custody that includes 44 days at the Toronto East Detention Centre.
25Mr. Holman testified that enduring lockdown took a toll on his emotions and that confinement during consecutive days was particularly stressful. Being locked in a small cell with another inmate was difficult. Time for showers and phone calls, limited to 20-30 minutes at the best of times, were restricted on some days. Family visits and education programs were curtailed. Time in the yard was lost. I accept that the defendant's circumstances were made particularly difficult by this degree of lockdown.
26There is no formula to calculate the precise credit for harsh conditions. It requires fairness and proportion in the individual circumstances. Mr. Holman spent 6 months subject to full or partial lockdown. I would apportion 2 months as enhanced credit that will be reflected in "mitigation of sentence": R. v. Doyle, 2015 ONCJ 492, per M. Green J.
Conclusion
27There are some particularly aggravating features to weigh in determining a fit sentence here. These include the deadly nature of the loaded firearm and the attendant risk when one possesses such a weapon in a public place; the fact that such possession has only one purpose, that is, to be used to threaten or cause death; that the defendant breached a weapon prohibition order and a probation order; and the fact that he is not a first-time youthful offender.
28At the same time, Mr. Holman has shown himself to be a candidate for rehabilitation and reintegration into the community. He has a positive relationship with both his mother and girlfriend. He has attained 2 credits towards his high school diploma in difficult circumstances. He expresses a wish to develop a career and adopt a more pro-social life. I accept this as genuine.
29Nonetheless, as indicated in the authorities, this offence requires a sanction that denounces such behaviour in an exemplary manner and serves to deter others. Mindful of the Borde principle, I impose a sentence of 3 years on the charge of possession of a loaded restricted firearm, less two months for enhanced credit.
30I view defiance of the weapon prohibition order, designed to protect the lives and safety of innocent members of the public, to be a serious offence that requires a deterrent sentence. Mindful of totality concerns, I would impose a sentence of 6 months consecutive. The breach of probation also required that the defendant not possess weapons. However, given totality concerns for this related breach, I impose a sentence of 2 months to be served concurrently.
31Similarly, Mr. Holman will receive concurrent sentences of one year for unauthorized possession of a firearm in a motor vehicle and possession of a firearm knowing its possession is unauthorized.
32The total sentence to be imposed is 40 months, less the equivalent pretrial custody of 23 months. In the result, Mr. Holman will serve 17 months. This is to be followed by 30 months of probation, on terms to be discussed with counsel. I do this to structure the accused as he reintegrates into the community and to enhance protection of the public.
33The following ancillary orders will be made:
A forfeiture order for seized firearms and ammunition
A form 5.04 DNA order
An s. 109 weapons prohibition order for life
Released: November 3, 2017
Signed: "Justice L. Feldman"