R. v. Blair, 2021 ONCJ 111

Court File and Parties

Date: March 1, 2021 Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty The Queen And: Devonte Blair

For the Crown: C. Rhinelander For the Defendant: D. Midanik

Submissions heard: February 9 and 19, 2021

Before: Russell Silverstein, J.

Reasons for Sentence

A. Introduction

1This matter began on October 29, 2020 as a preliminary enquiry before me. Mr. Blair was then co-accused with Berthland DaCosta.

2Eventually, Mr. DaCosta re-elected to be tried by me and pleaded guilty to certain offences and was sentenced. Not long thereafter, Mr. Blair re-elected to be tried by me and on January 14, 2021 Mr. Blair pleaded guilty to (1) possession of a loaded restricted handgun, (2) possession for the purpose of trafficking in fentanyl, and (3) breach of a weapons prohibition order. The statement of facts agreed to by Mr. Blair reads as follows:

1. On Monday, October 15, 2018, members of the guns and gangs task force began an investigation into two males believed to be carrying firearms.
2. One of these males was identified as Devonte Blair, aka “D-Block”.
3. Officers set up in the area of Beechgrove Drive and Kingston Road and observed two males exit a townhouse located at 389 Beechgrove Drive and enter the rear seat of a blue Honda.
4. The vehicle was stopped by police and Devonte Blair was seated in the rear driver side of the car.
5. In the satchel strapped across Devonte Blair, police found a Taurus 9 mm semi automatic handgun, serial number removed, with one round of ammunition in the chamber, and four rounds of ammunition in the magazine. Police also found a wallet with a SIN card in the name of Devonte Blair in the satchel.
6. In the pocket of Devonte Blair’s shorts, police found: a. 2.28 grams of heroin mixed with fentanyl and cut with caffeine; b. 4.97 grams of heroin mixed with fentanyl and cut with caffeine; c. 10.61 grams of fentanyl cut with caffeine and dimethylsulphone; and d. 37.61 grams of crack cocaine.
7. In the left pocket of Devonte Blair’s pants, police found three cellular phones – a small iPhone, a Samsung phone and a ZTC flip phone. Police also found $15 CAD.
8. On September 19, 2016, Devonte Blair was sentenced to a period of custody for the offences of Conspiracy to Commit Robbery, Robbery while armed with a Firearm, and Possession of a Firearm with Ammunition. He was further ordered not to possess any firearms and/or ammunition for a period of ten (10) years.

3Mr. Blair testified on the sentencing hearing. Jail records setting out the various lockdown days during Mr. Blair’s presentence custody were filed. Submissions on sentence were heard on February 9 and 19, 2021.

4Ms. Rhinelander takes no issue with that part of Mr. Blair’s testimony that focused on the conditions of his presentence custody and its impact on him.

B. The Circumstances of the Offender

5I don’t know very much about Mr. Blair. I am told by counsel that he was born in 1996. He is black, was raised by a single mother and has not enjoyed much support nor many resources in his life. He is not trained at any trade and did not finish high school.

6He is not a first offender. In 2016 he was sentenced to 5 years in prison for conspiracy and armed robbery with a loaded handgun. In May of 2020 (after the commission of the offence for which he is now being sentenced) he was convicted of possession of a weapon dangerous to the public peace for which he received a sentence of 45 days.

C. The Presentence Custody

7As of the date of this judgment, Mr. Blair has spent 838 days in pre-sentence custody. 491 of these days were spent in either partial or full lockdown at the Toronto South Detention Centre. During these lockdowns Mr. Blair (like most other inmates) suffered significant curtailment of his exercise time, social time, shower, visitor and telephone access. 269 of these days were spent in the Special Handling Unit (SHU) where even without lockdowns there is some curtailment of the privileges referred to above. Approximately 80 of these days were spent in segregation. His transfer to segregation and the SHU was as a result of administrative findings of misconduct on his part, some of which misconduct is denied by Mr. Blair.

D. The Charter Issues Waived by Mr. Blair

8Mr. Blair’s arrest was as a result of a warrantless arrest brought on by a tip from a confidential informer. Cross-examination of the Officer-in-Charge (OIC Tavares), was underway when Mr. Blair re-elected. A section 8 Charter challenge was being prepared by the defence that would likely have necessitated a step 6 inquiry by the trial judge.

9During a lull in the preliminary inquiry, counsel for the Public Prosecution Service of Canada (PPSC) stepped away from the case, citing a conflict of interest. It was then that Ms. Rhinelander took over the prosecution on behalf of the Guns and Gangs team of the Ministry of the Attorney General of Ontario. It soon became apparent that the reason for PPSC counsel’s recusal was that she was involved in an intimate relationship with OIC Tavares. Before Mr. Blair’s re-election, Mr. Midanik was pursuing disclosure of the relevant details of that relationship with a view to a possible section 7 Charter application at trial.

10Mr. Blair was arrested in October 2018, 28 months ago. A motion for a stay pursuant to s. 11(b) of the Charter was a possibility had the matter gone to trial in the Superior Court.

E. The Positions of the Parties

11Ms. Rhinelander seeks a notional sentence of 7 years. She agrees with Mr. Midanik that Mr. Blair should get 1.5:1 “Summers” credit for his 838 days in presentence custody. She disagrees with Mr. Midanik as concerns what “Duncan” credit Mr. Blair should get for his days in lockdown and the SHU. Ms. Rhinelander argues that Mr. Blair should only receive 1:1 Duncan credit, and then only for the 225 lockdown days he spent when not in the SHU. By her calculation the sentence remaining to be served by Mr. Blair is approximately 1075 days, or just less than three (3) years.

12Mr. Midanik argues that Mr. Blair should get significant credit for the Charter issues he has waived and the future COVID risk he would endure if sentenced to further custody, and that the notional sentence should be one of five (5) years.

13He further argues that in addition to the Summers credit referred to above, Mr. Blair should get Duncan credit for all his days on lockdown, with extra such credit for his time in the SHU and in segregation. He argues that if a five-year notional sentence is imposed, Mr. Blair is in a “time-served” situation and should be released forthwith after proper credit for his presentence custody.

F. The Principles of Sentencing

14The principles of sentencing are set out in Part XXIII of the Criminal Code.

15According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

16Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

17Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

G. The Aggravating Circumstances

18The most significant of the aggravating circumstances is the confluence of drugs and a loaded weapon, all in the hands of a repeat weapons offender. And the drug is not just any drug. Fentanyl is without question the most dangerous of the illegal drugs pedaled in Canada. Bawden J.’s 2018 judgment in R. v. Cinelli, 2018 ONSC 4983 provides an excellent summary of the pernicious nature of this drug and the death toll associated with its distribution.

H. The Mitigating Circumstances

19In mitigation of sentence is Mr. Blair’s relative youth, his disadvantaged background and his guilty plea, which, along with his testimony and his statement after submissions, I take as an expression of remorse.

20Mr. Blair’s decision to plead guilty has saved precious court resources. It also represents a sacrifice by Mr. Blair of Charter applications that were patently arguable, and if successful might well have resulted in his acquittal, or a stay of the proceedings.

21Mr. Blair will be serving his sentence during the Covid-19 pandemic. This increases his risk of infection to some degree and is a collateral consequence of his sentence that must be considered as shortening the length of the sentence that would otherwise be imposed in the absence of the pandemic: R. v. Hearns, 2020 ONSC 2365.

I. Analysis and Caselaw

22It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.

23There is ample caselaw involving offenders like Mr. Blair (young repeat gun offenders, with associated drug and breach of gun prohibition charges) who receive sentences in the range of eight to 10 years: See R. v. Graham, 2018 ONSC 6817; R. v. Ribble, 2019 ONCJ 640.

24Whether I impose concurrent or consecutive sentences, I must ensure that the total sentence is appropriate. That said, it is accepted law that Mr. Blair’s sentence for breach of a firearms prohibition must be consecutive. See R. v. Johnson, 2013 ONCA 177, where the Court of Appeal upheld sentences of 6 months' imprisonment for firearms prohibition offences, to be served consecutively to a firearm possession offence and to each other. Similarly in R. v. Camara, 2019 ONSC 115, the sentencing judge imposed sentences of six months for firearms prohibition offences, to be served consecutively to a firearm possession offence and to each other. See to: R. v. Manning, [2007] O.J. No. 1205 (S.C.J.); R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (S.C.J.) aff'd, 2016 ONCA 598.

J. Conclusion

25Were it not for the factors I have discussed that tend to reduce the appropriate sentence, I would have imposed a sentence in the range of eight to ten years.

26Considering the aggravating and mitigating factors and applying the principles of sentencing set out above, I sentence Mr. Blair to a notional term of incarceration of 65 months on the drug offence, 65 months concurrent on the weapons offence and 10 months consecutive on the breach of the weapons prohibition – a total of 75 months.

27I deduct 42 months from that sentence as “Summers” credit for presentence custody. I deduct a further 18 months as “Duncan” credit for the harsh conditions of his presentence confinement.

28The net sentence still to be served is 15 months.

29Upon Mr. Blair’s release he shall be on probation for 12 months. He will report within three days of his release and thereafter as required.

30There will be a DNA order and a section 109 order for life.