R. v. Leslie, 2022 ONCJ 677

O N T A R I O C O U R T O F J U S T I C E

DATE: November 23, 2022

INFORMATION #: 2811-998-21-35351-02

B E T W E E N :

HIS MAJESTY THE KING

— AND —

RYCHEZ LESLIE

Before: Justice F. Javed

Heard on: August 4, October 17, 2022

Reasons for Sentence: November 23, 2022

Counsel: D. Morgan, Crown counsel D. Gosbee, counsel for Rychez Leslie

F. JAVED J.:

A. Introduction

1On Sunday May 23, 2021, the offenders Rychez Leslie and Owais Jafari boarded Mr. Leslie’s vehicle and drove across Highway 401 into Durham Region where a police officer tried to stop the vehicle for a suspected traffic infraction. Both Mr. Leslie and Mr. Jafari were carrying loaded restricted firearms. Mr. Leslie was driving and chose not to stop when the police attempted to pull him over and instead lead the police on a brief chase which ended with Mr. Leslie’s vehicle rolling over. Thankfully, nobody got hurt. Both men were arrested at gunpoint after they exited the vehicle and announced they had firearms. Both were charged with a number of firearm offences including the offence of possessing a loaded restricted firearm contrary to s.95(1) of the Criminal Code (“Code”). Mr. Leslie was separately charged with driving offences including failing to stop for police contrary to s. 320.17 of the Code. Both were held for bail but eventually released to a surety with a strict house arrest component.

2On August 4, 2022, both offenders plead guilty to the s.95(1) firearms offence. Mr. Leslie also plead guilty to the fail to stop offence. The sentencing hearing was adjourned at the request of the defence to gather material to assist with sentencing. Both offenders are young Black men who do not have criminal records. Mr. Leslie requested an Enhanced Pre-Sentence Report (“EPSR”) through the Sentencing and Parole Project – a non-profit organization that prepares reports of this nature for marginalized Black individuals. Mr. Jafari did not request an EPSR. Nor did he request a Pre-Sentence Report (“PSR”) pursuant to s.721 of the Code.

3On October 17, 2022, the parties appeared for the sentencing hearing. Counsel for Mr. Leslie filed extensive evidence including a comprehensive EPSR authored by Michelle Richards, a registered social worker with the Sentencing and Parole Project. The defence materials were collectively made Exhibits 1 and 2. Counsel for Mr. Jafari also filed some background material, albeit not as extensive as Mr. Leslie, which was made Exhibit 3.

4Crown and defence counsel agree on the quantum of sentence to be imposed for each offender but part company on how it should be served. The parties agree a fit sentence is a maximum jail sentence in a provincial reformatory of 2-years less-1-day (24 months less 1 day) followed by a 2-year probation order but disagree on whether it would be appropriate to have the offenders serve the jail sentence in the community as a Conditional Sentence Order (“CSO”) pursuant to s.742.1 of the Code or behind bars in jail. The Crown says both offenders should go to jail while the defence argues both young men should be permitted to serve their jail sentence in the community on a CSO with punitive conditions akin to jail. The Crown also seeks a 6-month jail sentence for Mr. Leslie on the fail to stop offence which could be served concurrently as well as a 1-year driving prohibition. The defence does not oppose this submission.

5It now falls on the court to impose a fit sentence. This is a challenging decision because it pits the sentencing principles of deterrence and denunciation which are paramount in cases involving possession of a loaded firearm against the principles of restraint and rehabilitation as both are youthful and marginalized first offenders who had promising lives ahead of them. Mr. Leslie is a University of Toronto (“U of T”) student who hoped to become a lawyer or teacher while Mr. Jafari has been accepted in the Youth Transition Program at Humber College. Both futures hang in the balance.

6The sentencing challenge is heightened because it requires the court to apply the principles enunciated by the Ontario Court of Appeal in R. v. Morris 2 – also a case involving possession of a loaded firearm - which unanimously held that systemic and background factors are relevant to an offender’s degree of responsibility if they provide an explanation for the commission of the offence which may mitigate the offender’s personal responsibility. 3 The five-member panel in Morris held: “[w]hereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged and serve to guide judicial decision making”. 4

7What becomes clear from Morris is that sentencing Judges have an obligation – in the appropriate case – to consider the effects of social context evidence including anti-Black racism, which might explain why an offender chose to arm himself with a deadly weapon. This information is essential to properly evaluate what role, if any, systemic and background factors played in the commission of the offence. 5 This social context information helps a court to properly balance the gravity of an offence with the degree and responsibility of the offender.

8In this case, Mr. Leslie provided the court with an EPSR which provides this essential information, but Mr. Jafari did not. This is not meant as a criticism to Mr. Jafari or his counsel, but rather underscores the point that there is a void in the sentencing record which prevents the court from fairly considering the defence submission for a CSO especially because the parties agree a CSO is an available sentence but differ on whether it should be imposed. During sentencing deliberations, the parties jointly filed a sentencing decision of my colleague who sits in the Durham Region, Justice B. Green in R. v. McLarty-Mathieu 6 released on November 2, 2022, which was also a case involving possession of a loaded firearm in a vehicle. Justice Green imposed a 20-month CSO for a similarly situated offender and wrote thoughtfully about the availability and use of EPSR’s at paras. 10 to 24. Justice Green’s ruling brings into sharper focus the concern I have raised in this decision as it pertains to the void in the record involving Mr. Jafari who chose not to request an EPSR or even a PSR.

9As a result, these reasons will only address the sentence to be imposed for Mr. Leslie and not Mr. Jafari. Instead, I will invite submissions from the parties on whether the court should order an EPSR pursuant to s.723(3) of the Code with a direction to have the author explore issues related to anti-Black racism and relevant social context issues that speaks to an offender’s rehabilitative potential. 7 I will adjourn Mr. Jafari’s sentencing hearing to an appropriate date after hearing submissions on these issues. 8 Since the sentencing record involving Mr. Leslie does not present with a similar void, I will proceed to sentence him in these reasons.

10While it may seem unusual to deliver separate sentencing reasons in a case involving co-accused parties charged with the same offence (with the added fail to stop offence for Mr. Leslie), the law does not require joint reasons for sentence. Indeed, it is my view separate reasons for sentence will ensure the backgrounds of the offenders are not improperly conflated and will achieve the goal of an individualized sentence for each offender.

11For reasons that follow, I have decided a fit and proportionate sentence for Mr. Leslie in the individualized circumstances of this case is a CSO of 2-years less-1-day followed by a 1-year probation order. I will also impose a 6-month CSO on the fail to stop offence which can run concurrently to the firearms sentence. This will be accompanied with a 1-year driving prohibition.

B. The Facts

12On Sunday May 23, 2021, at approximately 6:20 p.m., a police officer with the Durham Regional Police Service (“DRPS”) was on patrol and driving eastbound on Highway 401 in the collector lanes in Pickering. He observed a black sports utility vehicle (SUV) travelling “incredibly fast” in the eastbound lanes. He activated his laser speeding device and obtained a speed of 174km/hour which exceeded the posted speed limit which is 100km/hour.

13The SUV sped past an eastbound firetruck with its emergency lights activated as other vehicles had lawfully slowed down to let it pass. The police officer activated his lights and siren and began to pursue the SUV on Hwy 401 which continued at a very high speed and did not stop when signalled to do so. The officer engaged the services of a police helicopter who made direct observations of the SUV which began to weave in and out of traffic, ostensibly in order to evade the police cruiser.

14The police officer decided to deactivate his police lights and siren and slowed down and ultimately lost sight of the SUV. However, it was picked up by the police helicopter who observed the SUV exit Hwy 401 in Ajax and reduce its speed. As the SUV approached a bottleneck in traffic, other police vehicles arrived, and the plan was to attempt to box in the SUV in an effort to stop it. However, it appeared the driver, later discovered to be Mr. Leslie, got “spooked” and sped away. He mounted a curb and attempted to drive across some grass but hit a stabilizing cable connected to a power pole and rolled onto its side.

15Police converged on the vehicle and smashed a window to begin extracting the occupants. The driver was identified as Ms. Leslie and the passenger was Mr. Jafari. As Mr. Leslie was being arrested, he said “I have a weapon, I have a weapon”. When he put his hands up, the police saw the handle of a pistol sticking out of his waistband. The firearm was seized.

16The firearm was identified as a SAR-9 9mm handgun, which is a restricted firearm. It was loaded with a 15-round magazine, though there was not a live round in the chamber. Mr. Leslie is not licenced nor registered to possess firearms.

17When Mr. Jafari was arrested, he too was found in possession of a separate and loaded firearm in his pockets. It was a prohibited 9mm handgun from an unknown manufacturer. There was no bullet in the chamber but there were bullets in the magazine. Mr. Jafari is also not licenced nor registered to possess firearms. The SUV was not registered to either person. Neither party suffered any injuries in the collision.

C. The Offender

18Rychez Leslie’s background was learned through extensive material filed by defence counsel Mr. Gosbee. The material is comprehensive, containing 25 tabs. It is impressive and persuasive. The defence material contains copies of release documents, character references from the community and educators, academic from high school and U of T and medical documents explaining the circumstances of injuries suffered from a car accident in 2017. The overarching defence submission is that the choice to arm himself with a deadly weapon was made at a time when Mr. Leslie was fearing for his safety from perceived gun violence. In addition, he was struggling with a precarious family situation brought on by the onset of the pandemic causing him to move in with his mother in a tough neighborhood in Scarborough, (Malvern) where he succumbed to negative peer influences. He is otherwise a law-abiding citizen with “overwhelming” rehabilitative potential – to use Mr. Gosbee’s words. The defence filed an EPSR (Tab 4) which I found to be extremely helpful, well sourced and balanced. Michelle Lewis, the author of the EPSR, was present for the sentencing hearing. The Crown accepted her conclusions and did not seek to cross-examine her. I will not review all the information in the EPSR but only highlight those that are important in deciding a proportionate sentence. To avoid confusion with his father, I will refer to the offender by his first name, “Rychez”.

(i) Background

19Rychez was 21 years old at the time of the offences and 22 at the time of sentencing. He does not have a criminal record. There is no evidence of any prior involvement with the criminal justice system.

20Rychez is a Black male of mixed heritage. His birth parents are Kelly Callahan and Omar Leslie. Ms. Callahan identifies as a bi-racial woman of Irish and “African-American” ancestry. Mr. Leslie is of Canadian-Jamaican descent. Rychez is one of five children in his extended families. He has two older brothers and three younger siblings after his father married his current stepmother, Sonia Belli.

21Rychez was born with the medical condition Amblyopia which is commonly known as “lazy eye” in his right eye. This required approximately six surgeries as a child but was never corrected resulting in permanent swelling and drooping of the eye. Rychez disclosed he was always self-conscious about his lazy eye and growing up was the subject of constant bullying from his school peers. As a result, he began to bully others to prove his strength but continued to internalize feelings of low self-worth and hurt, believing he would never secure a girlfriend or other intimate relationships. As will be discussed below, this was one factor that veered him towards negative peer influences.

(ii) Family History and Instability

22Ms. Williams explored his family history which in my view is important because it serves as context for his youth which was filled with tumult and instability. Some of this instability continued into his young adulthood and is causally connected to the offending behavior. Ms. Callahan disclosed she became estranged from her family at the tender age of 15. She was kicked out of her house and never reconciled with her family. As a result, Rychez and his siblings have never met their grandparents and have not benefitted from what is often a nurturing relationship. Ms. Callahan was 25 when she gave birth to Rychez. After separating with Mr. Leslie, she raised Rychez in an enclave of Scarborough known as Malvern. Mr. Gosbee submits it is well known in the GTA that Malvern is a “difficult” neighborhood plagued with poverty. This sentiment was shared by the parties interviewed in the EPSR.

23Omar Leslie (Mr. Leslie) fathered Rychez when he was 20 years old. He too had a difficult upbringing. He was born in Toronto, but his birth parents did not live together. He grew up in subsidized housing in Scarborough. Unfortunately, his birth mother died when he was 10 years old causing him to move in with his father. When he was 14 or 15, his father and stepmother separated. Mr. Leslie struggled with the loss of his mother and was “in and out of jail”. Eventually, he was able to turn his life around after turning to religion and meeting his current spouse Sonia Belli with whom he shares three sons.

24Ms. Callahan advised she ended her relationship with Mr. Leslie because of violence. The Children’s Aid Society (CAS) became involved when Rychez was 2 years old. The alleged violence was confirmed by Tyvon Callhan who is 27 years-old and the older brother of Rychez. He disclosed their father was verbally and physically aggressive, stating: “it could be rough at times”. Mr. Leslie admitted he was violent stating: “I wasn’t a man, I was young”.

25Rychez disclosed despite living with his mother, they were never close as she didn’t form emotional bonds with her children. Ms. Callahan didn’t dispute this assertion blaming her own upbringing which robbed her of the ability to form emotional bonds with her own parents. Instead, Rychez turned to his father for “a guiding hand” despite not living with him. His father introduced him to church and spoke to him about his own challenges, hoping his son would be able to avoid the allure of a street life.

26Ms. Belli disclosed after she married Mr. Leslie, the family moved to Ajax and Rychez was welcomed in their home. He developed a bond with his younger brothers and was respectful by completing assigned chores without complaint and acted as a positive role model. However, this changed after the onset of the pandemic which resulted in Rychez feeling socially isolated from positive peer influences as university classes moved online. As a result, Rychez left the home after butting heads with his father who expected him to follow house rules which he found challenging. I will discuss this pivotal transition below.

(iii) Educational Potential and Injuries from Car Accident

27Rychez presents as a dedicated and accomplished learner which makes his decision to arm himself with a deadly weapon that more perplexing. Rychez completed high school and was the first and only person in his family to attend university. It was a source of great joy for his family who thought Rychez averted the negative influences in his community. Rychez attended high school in Scarborough and was forced to relocate after his older brother was dismissed for poor behavior. At the age of 15, he attended a Catholic high school and two weeks into his Grade 10 school year, he was involved in a serious car accident. Rychez was one of four passengers in a vehicle that crashed into a bus shelter. He sustained serious injuries including a right hip displacement, a fractured right femur and facial bruising. The injuries caused other physical, cognitive, psychosocial and psycho-emotional deficits. He suffered post-traumatic stress, symptoms of anxiety, rejection and restlessness.

28The medical reports filed by the defence as Tabs 21 to 25 in Exhibit 2 document an almost two-year medical journey dealing with the fallout of the accident which includes working with a social worker for 12 sessions, an occupational therapist for 4 months and a speech pathologist. In my view, this journey speaks directly to Rychez’s rehabilitation prospects in the community. Rychez was treated at Sick Kids hospital and missed 2-3 weeks in school and returned in a wheelchair where he was ostracized by his peers. He began to experience post-injury symptoms which made concentrating in school difficult. His superior grades began to decline, and accommodations were put in place to help him in school. A social worker found him to be depressed with loss of motivation, helplessness and hopelessness. He was unable to participate in organized school activities or other pro-social activities with his friends and as a result his quality of life suffered. Rychez explained after the accident, he began to skip classes and hang out with negative peer influences and began to smoke marijuana. He deliberately picked friends who were “popular” in order to fit in and make up for his many perceived deficits.

29Despite this challenging medical journey, Rychez proved to be resilient with many vocational and academic supports. He not only finished high school on time but received acceptance into every university he applied to including the prestigious U of T. In the EPSR, he explained he remained committed towards achieving his goal of becoming a lawyer and upgraded his education by taking night and summer classes while injured, when most of his friends in his Malvern community, did not. The effects of the injuries have not completely subsided as the reports note it is very likely he will need to replace his hip within a few years which is very uncommon for a person of his age.

30In 2018, Rychez enrolled in a three-year program at U of T at the St. George Campus which is located in downtown Toronto. He is pursuing a Bachelor of Arts and Science degree with a major in Religion and a minor in English. At the time of sentencing, he remains in good standing and hopes to graduate upon completion which is slated for November 2023. As noted, Rychez hoped to become a lawyer but realizes that his criminal conduct may make this dream impossible to achieve. Instead, he has focused his attention on teaching. A conviction for firearm offences will no doubt hamper both aspirations especially with a future good character hearing which is often required to license professionals. The defence filed a transcript of his Fall 2021 grades at U of T which revealed a sessional grade point average (GPA) of 3.70 with marks of 84% in Study of Religion and 83% in Religion and Nature. These grades were received after he was charged and while on bail for these offences.

31Academic strength was a constant for Rychez as evidenced by his high school grades which were equally impressive. The materials include a letter from the Department Head at Saint Mother Teresa Collegiate, Christopher Pereira who wrote that Rychez was an exceptional student in his class earning good grades as he surrounded himself with a positive peer group. In the summer of 2017, he was hired by Focus on Youth which provided leadership training for youth in marginalized communities. Rychez was hired as a camp counsellor and participated in the “Footsteps to Success” program and became a positive role model for youth. Mr. Pereira was made aware of his charges and expressed shock, indicating it was not in his character to commit the offences.

32Rychez continued to be a strong student while at U of T despite suffering from another injury in 2018 after he fell. The defence materials include two letters from professors at U of T who were also made aware of his criminal offences. Professor Laura Bugg, Assistant Professor in the Department of Religion at U of T authored a letter in “strong support” of Rychez. She taught him two courses and wrote she always found him to be “exceptionally kind” and hard working. After learning about his injuries from a car accident, Rychez offered to attend class using crutches and on one occasion she described offering to drive him home where she got to know him outside of class. She remarked he was proud that he was the first person in his family to graduate and proud of his role in being a mentor and big brother to his siblings and troubled youth in his community. In 2020, Rychez enrolled in a third religion course taught by her, but she quickly noted that he began to struggle which was unusual. She was aware that in 2018 he was experiencing some cognitive decline which he attributed to injuries from a car accident and the university was able to accommodate him but was told by him at the time that online learning was making it difficult for him to concentrate. Rychez apologized for the poor quality of his work and the additional time he needed which led her to believe he was truly genuine about his desire to succeed. Ms. Bugg added: “The Rychez I met in the first year of University was determined to prove that he could graduate and make a difference in the world. It frankly breaks my heart to think that in making a poor choice, he has put all of this at risk. I can’t help but to believe that the kind and thoughtful Rychez that I know is still there”.

33This assessment was echoed by Assistant Professor Alexander Hampton, also in the Department of Religion at U of T who taught Rychez two courses. He wrote that Rychez stood out as always “enthusiastic and engaged”. While his course material was challenging, Rychez “consistently put in a great deal of effort and was rewarded with solid grades in both courses.” Professor Hampton added that recently he conducted a public outreach project on nature awareness based on birdsong and poetry and called on Rychez to participate because of his “displayed academic curiosity and kind demeanour”. After learning of the charges, he was shocked and dismayed but after speaking with Rychez noted he was genuinely remorseful.

34Rychez remains in good standing with U of T and hopes to graduate in November 2023 with the eventual hope to pursue law school or teacher’s college. His career goal is to work with marginalized and at-risk youth. Rychez has been attending classes both virtually and in-person while on bail but not after some challenges. On May 27, 2021, thus days after being charged and released on bail, U of T issued him a formal trespass notice (Tab 18) barring him from attending on the downtown and any affiliated campuses. In submissions, Mr. Gosbee argued this step was taken at the behest of the Durham police which notified the university about the nature of his charges. The defence argues this is problematic because it might have been racially motivated. The EPSR notes Rychez also believed this was discriminatory because he was unable to find any university or police policy which justifies disclosure of this information. The Crown does not dispute this occurred and did not seek to explain why the police took this extraordinary step which I too find to be unusual. While a reasonable member of the public might expect the police to notify an institution of a potential threat to public safety, it’s unclear if the police take this step in all gun cases or simply chose to do so in this case. Quite frankly, it’s puzzling that such a step was taken at all because when Rychez was released on bail, he was subject to a house arrest term and wasn’t allowed to attend the campus even in the company of his mother who acted as his surety so it’s unclear what threat the police were targeting it that was the motive. There is strong merit to the submission that this was done with a view to impugn the character of Rychez but I can’t say for sure. The racism submission was not litigated before me as a potential Charter violation because of the guilty plea so I will refrain from making any findings on this important point. In my view, the greater import of this fact is that it speaks to the rehabilitation potential of Rychez who continued to learn online while on bail when it would have been easy to simply give up. He proved to be resilient in the face of adversity by advocating for the university to rescind the trespass notice and allow him to pursue his studies in-person. U of T eventually relented and permitted him back on campus. On September 19, 2022, Crown counsel agreed to a bail variation permitting him to return to the U of T campus for in-person learning.

(iv) Growing Up in the Malvern Community & Fear of Gun Violence

35Rychez grew up with his mother during his formative years in the Malvern community in Scarborough. In September 2020, and during the throes of the pandemic, Rychez decided to live with his father in Ajax craving structure and stability to help him cope with the demands of university but unfortunately, conflict followed. This conflict was largely attributed to his strained relationship with his father who was raising three younger boys with his stepmother. Rychez disclosed after the onset of the pandemic which brought in-person learning to a halt, he had great challenges adjusting to online learning amidst his injuries which made concentrating very difficult. He became a different person, often agitated and angry. In March 2021, Rychez moved out of the Ajax home and returned to his mother in Malvern. At the time, he believed his father kicked him out, but Mr. Leslie said the dissolution was due to a confluence of factors including the stress of raising three boys who had their own challenges with online school. Mr. Leslie said Rychez began to exhibit behavioural changes and things went downhill. This conflict has since resolved itself, especially after discussion with Ms. Williams in the EPSR. Rychez maintains a good and supportive relationship with his father and stepmother.

36The return to Malvern came with further challenges. Rychez described growing up in the Malvern community as a “real ghetto” with “gang banging”. As a young teen, he tried to stay out of the crossfire by trying to focus on his studies and for the most part, succeeded but it was challenging as many of his neighborhood friends weren’t as motivated as him to succeed in school and drew him back in. He explained many of his childhood friends in Malvern were young Black youth with troubled homes and impoverished circumstances. They were living “a hard life” but he remained friends despite their different paths. He said: “I always had bad people around … [his peers] lived a fast life, had nice cars, carried guns”. This characterization was confirmed by his older brother Tyvon who said the Malvern community was unsettling due to the “guns and gangs” which were prevalent. Both confirmed the community was largely racialized and rife with poverty. Rychez added given the social isolation of the pandemic, it was difficult to turn to pro-social activities, so he turned to his friends and became enamored with their fast life. It was during this period of upheaval when he committed the offences before the court.

37Rychez disclosed his first interaction with the police in Malvern was at the age of 12 when the police raided his home at 6:00 a.m. looking for one of his brothers. Rychez was made to sit in his boxers with the police pointing guns at the family until they executed a search warrant. He was not the target of the warrant, but his troubled brother was. It paralyzed him with fear. Since he began driving, he was pulled over by the police on numerous occasions. His father had “the talk” with him that he believes many Black parents have with their children about safely managing a police interaction. Rychez said he has been pulled over several times by the police but did not say he encountered a violent interaction. Rychez added that when gun violence “hit close to home”, it caused him to fear for his own safety. In 2019, Rychez was driving in his community and accidentally cut off a taxi. The passenger exited and showed him a gun on his waist which caused him to become scared. In 2020/2021, a former peer from his secondary school was shot and killed. This friend, like him, was a “good kid” and not involved in crime or anything where he would become a target. A few years earlier, another friend was shot and killed. All of this didn’t sit well with Rychez who began to fear that he wasn’t immune to gun violence especially while living in Malvern. In addition, Rychez added a couple of his father’s employees were murdered by gun violence which left him feeling vulnerable as some of these people were not involved in crime. Mr. Leslie confirmed this account by adding he tried to help marginalized people in the community escape the street life by hiring them as contractors, but one employee was murdered while the other died in a murder-suicide. He added he frequently cautioned all his children about gun violence. He believed these clarion calls left an indelible impression on Rychez causing him to fear for his wellbeing. Rychez confirmed this was the case.

38This fear of gun violence culminated in March 2021, just two months before the offences, where friends organized a birthday party for Rychez to celebrate his 21st birthday at a cottage north of Toronto. The party was advertised over social media and drew some uninvited guests who were in possession of guns. Rychez noted the party quickly got out of hand with shots being fired and some guests were harmed and robbed, which included his brother. This too, left him in a state of fear, causing him to arm himself.

(v) Good Character, Community References & Rehabilitative Potential

39Ms. Williams spoke with several collateral sources in the EPSR who confirmed that Rychez suffered from self-esteem issues while growing up due to his lazy eye which made him look and feel different from his peers. Rychez himself added he deliberately tried to find “popular kids” in school to make up for his deficits and this became even more problematic after the car accident which left him in a wheelchair. He struggled with remaining focused on his educational goals and had few supports in Malvern that shared his trajectory. In particular, the EPSR documented discussions with a close friend (Mr. Wilson) who disclosed that he and Rychez shared the same goals of pursuing higher education but after he got married and moved away, Rychez began to hang out with people he did not know who had a negative influence on him. Mr. Wilson expressed guilt because if he remained in his life, he may have been able to steer him in the right direction. This assessment was confirmed by Ms. Aleika Bailey-Johnson who has been dating Rychez for 4 years. She was shocked to learn about his friends that she did not know or approve. Otherwise, she described him as a fun and law-abiding citizen.

40The lack of self-esteem was confirmed by his family and brother Tyvon who all said Rychez worked hard to avoid being enmeshed in a criminal lifestyle when many of his peers in Malvern couldn’t. All of the sources that were interviewed were shocked and dismayed by his gun charges as it was inconsistent with his previous good character. They’ve all tried to make sense of the charges and have asked Rychez why he armed himself with the constant theme being self-preservation.

41In addition to the academic references, the defence filed letters from his church. In 2017, Rychez decided to get Baptized at the True Church of Jesus Christ Fellowship Centre. He became known as “Bro. Rychez” and was celebrated for his work with younger members of the community, often bringing them to church for service while attending to his university studies. Keiron Allen authored a letter explaining he was “conscientious, bright, kind, friendly and a driven individual.” He was shocked by the news of his gun charges. Another member of the church, Gertude Hemmings echoed these comments indicating she’s known Rychez for his entire life and he was always “well behaved”. Finally, Keith Morgan added “[H]e is someone who is far more than the offence he pled guilty to”

(vi) Post-arrest Activities and Pro-Social Time Spent on Bail

42Rychez was released on bail to his mother as surety after spending one night in jail. The parties agree this time should be credited as 2 days using the statutory formula in R. v. Summers. 9 The release order had a “house arrest” term requiring Rychez to remain in his residence at all times unless he was in the direct company of his mother. He was also prohibited from operating or having care or control of a motor vehicle. The parties agree Rychez spent 484 days or approximately 16 months on full house arrest which he did not violate. On September 19, 2022, Crown counsel agreed to vary his bail to permit an academic exception, allowing him to attend classes in-person at U of T. All other terms remained in effect. Rychez has spent 65 days on this loosened house-arrest bail.

43The defence argues the release order was a restrictive order and seeks the equivalent of approximately 4 months of credit for time spent on bail pursuant to the principle in R. v. Downes. 10 Mr. Gosbee clarified the defence did not seek putative credit which should be deducted from a fit sentence but instead argued it would be appropriate for the court to consider Downes credit as a strong factor in support of a CSO. In other words, the court should be fortified in its conclusion that a CSO would not be inconsistent with the purpose and principles of sentencing because Rychez successfully spent over 16 months on a restrictive bail order without issue and therefore can be trusted to serve a more restrictive jail sentence in the community. The Crown did not take a formal position on how to treat Downes credit but maintained their position against a CSO.

44In July 2021, thus while on bail, Rychez enrolled in a virtual employment program with the John Howard Society which is designed to assist youth with finding jobs in the community. The case manager authored a letter explaining Rychez was a committed and active participant and contributed greatly to the program. However, since he was on house arrest, he was ineligible to complete the program which requires an 8-week placement with an employer. The case manager was aware of his charges and advocated for his bail to be varied to permit him to complete the program. It does not appear his bail was varied for this purpose, but it does show that Rychez did not sit idle while on bail and instead pursued positive activities towards his rehabilitation.

45In addition, Rychez participated in an 18-week Youth H.I.R.E. program offered by the Learning Disabilities Association of Toronto. The program commenced in February 2022 and ended in June 2022. The program manager, Ramona Robinson confirmed Rychez “made good use” of the program which equips young people with job skills. Rychez asked to be complete certifications in First Aid and CPR, High Five, WHMIS and Smart Serve. He also benefited from life skills training which aims to improve ‘soft skill’ in teamwork, leadership and conflict resolution.

46On June 11, 2021, Rychez accepted a referral from Malvern neighborhood police officers to work with David Morales, a Toronto Community Housing Services Coordinator with the Community Development and Violence Reduction Team. Mr. Morales authored a letter confirming that Rychez was an active participant, and he is confident that Rychez is making “strong and intentional improvements towards his educational and personal goals despite his recent charges”.

47The letter from Mr. Morales arose with the intervention of neighborhood police officers with the Toronto Police Service (TPS). The defence filed a letter authored by Staff Sgt. Ryan Forde of 42 Division, Neighborhood Office of the TPS (Tab 14). I learned Rychez procured this letter on his own initiative after neighborhood officers conducted bail compliance checks and suggested he work with Mr. Morales given his skills. Staff Sgt. Forde authored a letter confirming the TPS performed approximately 70 bail compliance checks which proved to be successful. In other words, the police attended at his residence on 70 occasions over 18 months to confirm Rychez was abiding by the house arrest term and on each occasion were satisfied he was. While successful bail compliance would be expected from an accused, a letter from a law enforcement agency supporting the accused is extraordinary. Sgt. Forde confirmed his Malvern Neighborhood Community Officers found Rychez to be a “respectful young man” who was eager to follow referrals, including the one to Mr. Morales. Sgt. Forde wrote: “My officers understand that the charges before the courts are of serious nature however our interactions with Mr. Leslie [Rychez] have always been positive. My officers understand he is currently attending York University and certainly hope he has much success in his future endeavors and has learned from his incident”. 11 The court commends Staff Sgt. Forde of the TPS for authoring his letter of support which proves community policing initiatives have great value in marginalized neighborhoods. As guardians of public safety, police officers acted as de facto supervisors in the community for over 18 months proving Rychez was not a threat to the community. Authoring a letter of support is a bold step and helps build the bonds of mutual trust and respect amongst police and marginalized communities.

48In view of the above, and for reasons I will detail below, I agree with the defence submission that Rychez has very strong rehabilitation potential. I must bear this in mind when weighing and calibrating the various sentencing objectives and principles.

D. The Law

(i) General Principles

49Section 718 of the Code provides that 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 a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of many sentencing objectives set out in subsections (a) to (f) including denunciation, general and specific deterrence and rehabilitation.

50Section 718.1 of the Code provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In assessing the gravity of the offence, I must take into account the penalties prescribed by the law and the circumstances relating to the commission of the offence with a focus on any features that either increase or decrease the harm or the risk of harm to the community. The assessment of an offender's degree of responsibility refers the offender’s culpability.

51Section 718.2 of the Code provides that in imposing sentence, the court must take into account a number of principles including those enumerated in subsections (a) to (e). Rychez is a young a first offender thus the principle of restraint in s.718.2 (e) takes on greater importance which holds: “All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.

(ii) The Decision in R. v. Morris

52The legal principles relating to the use of social context evidence were summarized by the court in Morris at paragraphs 1 and 13:

1. It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been and continues to be a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, including the criminal justice system.
2. Anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.
3. 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;
4. 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;
5. 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;
6. Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
7. 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.

53Morris was primarily a case about anti-Black racism but also gave sentencing Judges guidance about receiving, using and acting upon relevant social context evidence in fashioning an appropriate sentence. The principles in Morris implore courts to carefully consider a person’s life experiences including systemic factors in balancing the sentencing objectives. These social context factors include the experience of racism but also include marginalization, poverty and other socioeconomic factors such as the social milieu in which a person lives, which helps to inform a person’s background. An important message from the Court of Appeal in Morris is that the sentencing objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires judges to prioritize and blend the different objectives of sentencing. 12 The Court of Appeal held as a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases but this does not mean that other objectives such as rehabilitation should become unimportant or be ignored. 13

54There are some factual similarities between the facts in Morris and this case. Mr. Morris was a 22-year-old first offender and was found guilty after trial of possessing a loaded/prohibited restricted handgun contrary to s.95 of the Code as well as two other gun related charges. The trial judge imposed the equivalent of a 12-month sentence after credit for pre-trial custody. Mr. Morris was investigated by the police on foot but fled. The police pursued him in their cruiser and ran over his foot. He got up and fled again and ran into a parking lot and was ultimately arrested in a stairwell. The police discovered his jacket which he discarded which contained a loaded .38 caliber Smith and Wesson handgun. There was no evidence that he was connected to the robbery that was being investigated. The sentencing Judge received an EPSR and learned Mr. Morris had been attacked and stabbed by an acquaintance and suffered from PTSD as a result. The Court of Appeal held the sentencing Judge erred by overstating the impact of his circumstances on his ability to choose whether or not to arm himself with a loaded concealed handgun and therefore it was an error to mitigate the seriousness of the offence in reducing the objectives of denunciation and deterrence. Ultimately, the Court of Appeal imposed an upper reformatory sentence - such as the one being proposed here – of 2 years-less-1-day in accordance with the principle of restraint. Importantly, the Court of Appeal did not exclude the appropriateness of a CSO for the offence but did not impose one as Mr. Morris was already in custody on other charges.

E. Application

55Sentencing an offender requires a delicate balancing of competing considerations to achieve a just and proportionate disposition. I must weigh and balance the seriousness of the offence with the personal circumstances of Rychez by examining the aggravating and mitigating and factors. This exercise is inherently individualized and may produce mixed results. It is a challenging task in this case. Having conducted this exercise, for context, I will set out my conclusions on the aggravating and mitigating factors below.

(i) Summary of Aggravating and Mitigating Factors

56Section 718.2 of the Code provides that in determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. In my view, the relevant mitigating factors include the following:

• Rychez is a youthful first offender and has no prior involvement with the criminal justice system. He was 21-year-old when the offence was committed.
• Rychez entered a guilty plea which I accept was his intention at the outset. I am satisfied this is a reflection of genuine remorse and separates him from those offenders who are found guilty after a proceeding.
• Rychez apologized to the court, his family and his community. He accepted responsibility for his actions and vowed never to commit a criminal offence and instead vowed to use his experience to mentor at-risk youth. He has the mindset, skills and support to fill this promise.
• Rychez has very strong rehabilitative potential as evidenced by the materials in the EPSR. He is an accomplished learner, gaining admission into university and succeeding in what is likely a demanding and rigorous academic program. His resilience in the face of adversity cannot be understated. While on bail, he advocated for himself to be readmitted into the university after being issued a trespass notice which proves he is genuinely motivated to complete his studies and contribute to his community.
• Rychez has very strong support in the community as evidenced by letters authored by his family, members of his church and educators, all of whom are aware of the seriousness of the charges. This support is going to be pivotal in promoting a pro-social and stable environment post-sentence.
• Rychez has abided by stringent bail conditions including house arrest for a substantial period of time without issue which the Court of Appeal has held must be taken into account as a relevant mitigating circumstance. 14 The endorsement from the Toronto Police Service is exceptional. Rychez turned his 70 bail compliance checks into a positive arrangement with a community liaison officer which speaks to specific deterrence and rehabilitation.
• Rychez did not experience anti-Black racism per se while growing up, however, I accept that his lived experiences in the Malvern community was rife with personal instability and accompanied with an extraordinary exposure to firearms, crime and negative influences which contributed to his involvement in the offences. In this way, the social context of his upbringing is relevant in explaining the commission of the offence, attenuating his personal responsibility to a degree and far more relevant in measuring his rehabilitative potential.

57The relevant aggravating factors include the following:

• Rychez committed a very serious offence in possessing a loaded restricted firearm (handgun) in a vehicle which placed himself, his passenger and the community at great risk.
• Rychez permitted a passenger to board his vehicle who was also carrying a loaded restricted firearm (handgun), which aggravated the dangerous circumstances and public risk to the community. I have tempered this factor because both men quickly announced they had weapons when arrested by the police at gun point.
• Rychez decided to flee after being pursued by the police and drove in dangerous circumstances at a high rate of speed which placed the community at even greater risk as the potential for property and personal damage increased. Driving is a privilege and requires careful due care and attention for others on the road. The risk of losing control in a vehicle (like Rychez did) can cause incidental damage to others on the road. Therefore, while the gun possession was not accompanied with other crimes, the conduct of driving away aggravates the firearm possession.

(ii) Penalties and Range of Sentence

58The Crown elected to proceed by indictment which means that the maximum penalty for the offence of possessing a loaded restricted firearm is a period of 10 years imprisonment. In R. v. Nur, 15 the Supreme Court struck down the mandatory minimum penalty of 3-years imprisonment but agreed with the Court of Appeal who upheld the trial judges’ sentence of 40 months imprisonment imposed following a guilty plea. Mr. Nur was a 19-year-old first offender with good family supports and a bright future. The Supreme Court conceptualized a sentencing range for the offence with a “true crime” at one end with a “licensing infraction” at the other. The “true crime” end of the range captures “an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal lifestyle”. The Court held offences falling into this category would most often attract a sentence of at least 3-years imprisonment. 16 The licensing end of the infraction would attract lesser sentences.

59After Nur, courts in Ontario have imposed varying sentences for possessing a loaded restricted firearm ranging from upper reformatory jail sentences to penitentiary sentences. Courts have also imposed CSO’s in appropriate circumstances. In Morris, the Court of Appeal held in most cases the offence involving a “true crime” scenario, a penitentiary sentence will be necessary for a s.95(1) offence while adding: “[I]n some cases, sentences at or near a maximum reformatory sentence will be appropriate”. 17 Further, I agree with the observation of my colleague Green J. who held in McLarty-Mathieu that a sampling of the cases after Nur reveals the sentence range for possession of a loaded restricted firearm has broadened in response to additional considerations that were not available to the Nur court. 18

60The parties jointly submit this is a case where the appropriate sentence is at or near the maximum reformatory sentence and provided me with several cases in support of this position. I will not review all of the cited cases because the division of the parties is not about the quantum of sentence but rather whether it should be served in jail or in the community as a CSO. Many of these sentencing dispositions were helpfully summarized by my colleague Justice West in R. v. Williams at paras. 34 to 36. 19 Sentencing decisions by other courts achieve the goal of parity in s.718.2 (a) and are meant to provide guidance to Judges without dominating the process because each case will require an individualized assessment. 20

61I agree with the parties that the factual circumstances of this case place Rychez somewhere in the middle of the Nur spectrum as he is not an outlaw who was carrying a loaded gun to commit other crimes, but nor is this a licensing infraction because neither he nor Mr. Jafari were licensed to possess restricted firearms with ammunition. As a result, I find the joint recommendation of a maximum upper reformatory sentence is not inappropriate in the circumstances of this case.

62The fail to stop offence does not carry a minimum penalty and attracts a maximum sentence of 10-years where the Crown proceeds by indictment. The parties jointly recommend a 6-month jail sentence and agree it can be served concurrently with the firearms sentence, however structured – whether in jail or in the community. I will accept the submission for a concurrent sentence because the offence arose out of the same transaction and is appropriate having regard to the principle of totality.

(iii) Gravity of Offences

63The Crown submits the principles of denunciation and deterrence must be paramount in structuring an appropriate jail sentence relying on the dictum in Nur and other cases including R. v. Smickle 21 and R. v. McKenzie. 22 The Crown acknowledges that while these principles are dominant, the principle of rehabilitation is still important and cannot be ignored. 23 The Crown argues the explanation for carrying a deadly weapon in a car rooted in self-preservation cannot decrease the seriousness of the offence nor the degree of personal responsibility. The Crown says any rehabilitation potential must take a backseat to deterrence and denunciation given the strong need to deter like minded people and justifies a reformatory sentence behind bars.

64The defence does not dispute that possessing a loaded firearm in a vehicle attracts deterrence and denunciation but submits the social context evidence is relevant in explaining the circumstances of the firearm possession and therefore mitigates the personal responsibility of Rychez. More importantly, the defence argues this is a case where an individualized assessment of all the circumstances should persuade the court that rehabilitation should play a greater role than deterrence and denunciation and tip the scales in favor of a CSO. In this way, the defence submissions were not aimed at minimizing the gravity of the offences but rather focused on the appropriateness of a CSO which requires, inter alia, proof that a court must be satisfied that service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2. I will review this latter submission in greater detail below when I discuss the appropriateness of a CSO but for now will focus on the gravity of the offence.

65It is without controversy that possessing a loaded firearm has the potential to cause great harm to the community. Courts in Ontario have consistently denounced gun violence and for good reason. While the prevalence of gun violence is worse in urban centres such as Toronto, Durham Region is not immune to this insidious problem. The parties presented me with several cases that underscore this point which applies with equal force in this case. In Morris, the Court of Appeal explained: Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically.............................................. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. 24

66Mr. Gosbee argues while the firearm was loaded, there was no bullet racked in the chamber, thus the firearm was not ready to cause immediate bodily harm or death which therefore decreases the danger to the safety of the community and decreases the overall gravity of the offence when compared to other cases. The defence also argues that Rychez was not using the firearm as a “tool of the trade” to commit other crimes which makes the offence less serious and therefore poses less of a risk to the safety of the community when compared with others who possess a loaded firearm for other nefarious purposes. I tend to agree with the defence but only to a degree. While it is generally true that a firearm which is ready to be fired poses a greater risk to the safety of the public, it does not in my view materially dilute the seriousness of the offence. In other words, the firearm possession offence remains a “true crime” even if the circumstances of its possession put it lower on the Nur spectrum when compared to a firearm that is ready to fire. In the latter circumstances, the danger increases because the firearm could be discharged through inadvertence especially with an inexperienced user. I agree with the observation of Justice Schreck in R. v. Donison, that handguns have but one purpose which is to kill or seriously injure people. 25 As for the latter point, there is merit to the submission that the circumstances are less serious than those if the firearm was possessed to commit other crimes – such as drug trafficking. To this extent, the circumstances of the offence justify a departure from those cases where guns were being used to commit other crimes. 26

67That said, it cannot be forgotten that the firearm possession was accompanied with other conduct which increased the risk to the public. For one, Rychez was in the company of a peer who also had a loaded firearm and permitted him to board his vehicle armed with a deadly weapon. He also chose to lead the police on a chase in the middle of the day which put the safety of others at risk. This poor decision highlights the concern raised by the court in Morris that the police would have no reason to know the person they were chasing was concealing a firearm. In this case, the police were trying to conduct a routine traffic stop and would not have known about the firearm. It is only through serendipity that Rychez lost control bringing the vehicle to a halt which resulted in their eventual surrender. If the chase had continued, and tensions became more heightened, the potential for harm to the community would have increased substantially.

68I agree with the Crown’s submission that the decision of Rychez to arm himself with a loaded firearm in a car largely for self-preservation purposes, should not reduce the gravity of the offences. This point was self-evident in Morris but also foreshadowed by other courts including Justice Trotter in 2007 writing in the Ontario Court of Justice in R. v. Powers 27 where he held: “to afford leniency to those who arm themselves with handguns for the purpose of self-protection would ‘turn the firearm provisions of the Criminal Code on their head and exacerbate a very serious social problem”. Other courts after Morris have come to the same conclusion, namely that arming oneself with a deadly weapon for protection does not mitigate the gravity of the offence. For example, in R. v. Lewis, Henschel J. said the following which I find to be apt: “It is this mindset that has contributed to the ongoing loss of life in the GTA communities that are plagued with gun violence. His [Mr. Lewis] belief that he needed the gun for self-protection in no way decreases the seriousness of the offence. 28

(iv) Degree of Responsibility of the Offender, Social Context Evidence and Rehabilitative Potential

69The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness. I have to assess why Rychez committed the offences by examining his background and circumstances and by considering relevant social context evidence which includes his life experiences and personal characteristics. 29 In Morris, the Court of Appeal reviewed jurisprudence from the Supreme Court in Gladue and Ipeelee and affirmed that systemic and background factors such as those outlined in the EPSR are relevant to an offender’s degree of responsibility if they provide an explanation for the commission of the offence that can serve to mitigate an offender’s personal responsibility. 30 The Court wrote:

103For example, evidence that an offender has had frequent and confrontational contact with the police may mean one thing in one community, but quite another in a community in which the influences of anti-Black racism have shaped a confrontational and adversarial relationship between the police and members of the community, especially young Black men. By understanding the social milieu in which the offender interacted with the police, the sentencing judge is better able to fashion a sentence that, to the extent possible, realistically addresses the needs and potential of the offender, as well as the seriousness of the offence.

70The assessment of personal responsibility is challenging in this case because despite being a young Black-male who grew up in an impoverished neighborhood, Rychez arguably “beat the odds” by staying out of conflict with the law during his formative years and gained admission to a prestigious university. When comparing him to a similarly situated offender, one might gainsay that the social context evidence is less relevant to his personal responsibility because his motivation to succeed equipped him with the ability to choose not to carry a loaded firearm even when surrounded by others who made this choice. Rychez avoided enmeshing himself in a criminal subculture so one might argue that a person in his shoes should be held to a higher standard and therefore the decision to carry a deadly weapon should not mitigate his personal responsibility. While it would an error to overstate the impact of social context evidence in assessing personal responsibility, in my view, it would equally be wrong to understate its impact given all the circumstances. Rychez made a poor choice in deciding to arm himself with a deadly weapon in a vehicle, but this decision cannot be divorced from the greater social context of growing up in a neighborhood where he was exposed to gun violence at a young age and felt its impact through his family and peers. In Morris, the Court of Appeal held evidence of an explanation rooted in social context remains relevant about why a person would make a dangerous and bad choice. In the case of Mr. Morris, the Court of Appeal said some of these circumstances were beyond his control, but some were imposed on him as a consequence of systemic and overt anti-Black racism in various social institutions.

71While there is little evidence from the EPSR that Rychez suffered overt racism in his community which might explain his dangerous choices, there is ample evidence that the decision was informed by some circumstances that were the result of his life experiences, some of which were outside his control. Rychez did not choose to live in a marginalized neighborhood. There were guns, drugs and gangs and frequent police activity. His brother was involved with the police and suffered from gun violence around the time of his offences. I accept his comments in the EPSR that he began to fear for his life because of a genuinely held belief that he was not immune to gun violence despite living a law-abiding lifestyle. Rychez did not arm himself to commit crimes but out of fear which explains his poor choices. It was at a time of weakness when the pandemic disrupted his pro-social lifestyle, and his family life was tumultuous. For most of his life, he lived a responsible lifestyle, motivated to succeed and help his community. The assessment of personal responsibility must be framed in this context because even though he made a very dangerous decision which to many in his community was inexplicable given his life trajectory, it does mitigate his moral blameworthiness to a degree because it explains the decision.

72In Morris, the Court of Appeal reminded that social context evidence can allow for a more informed and accurate assessment of an offender’s background, character and potential when choosing from available sanctions. The court held: “social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender.” 31 In my view, the greater value of the social context evidence in this case is assessing Rychezs’ rehabilitative potential. In Donison, which was a case involving possession of a loaded firearm, Justice Schreck observed that the fundamental purpose of sentencing in s.718 is “to protect society” and all the sentencing objectives are subordinate to this overarching objective. I agree with his observation that “where an offender has rehabilitative potential, courts should do what they can to ensure its actualization”. 32 He added:

… [A]rguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 113-114; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1999), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23; R. v. McGill, 2016 ONCJ 138, at para. 104; R. v. Reis, 2012 ONCJ 373, at para. 26. 33

73The totality of the evidence reveals Rychez has very strong rehabilitative potential. Rychez made a lot of good decisions in his life and one very poor decision for which he will have to repent on his own terms as he matures. His motivation to succeed shows great potential. His teachers know him to be a committed and hard-working student with natural ability. I accept the assessment of Ms. Richards who stated Rychez has a number of protective factors which supports a permanent disengagement from criminal activity including a strong support system, his willingness to engage in community resources and his desire to mentor others. I am confident he has been specifically deterred and the goal of public protection will be achieved as Rychez is unlikely to come in contact with the criminal justice system unless he does so in an educational capacity as a teacher or lawyer. I have no hesitation in finding that even if Rychez returns to his social milieu in Malvern, he will not make the same bad choices which also speaks to personal responsibility. For these reasons, it is my view a proper blending of the sentencing objectives in this case places the principle of rehabilitation at least on par with the principles of deterrence and denunciation which are key in firearm possession cases. This leaves the final question: how should the jail sentence be served?

(v) Is a Conditional Sentence Order (CSO) an Appropriate Sentence?

74In Morris, the Court of Appeal held when the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. The Court wrote: “[A]s outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of over-incarceration of young Black men.” 34

75A CSO in this case is statutorily available. 35 The only provision that remains controversial in this case is s.742.1 (a) which provides “the court [must] be satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing in sections 718 to 718.2”.

76I am satisfied that permitting Rychez to serve a jail sentence in the community would not endanger public safety largely because he is a first offender with no criminal history and has been specifically deterred. He has been on a release order for a long time and has used his time spent on bail in a pro-social way by improving his education and upgrading his job skills. He has exceptional rehabilitation prospects which means he has the ability to promote public safety by mentoring others to avoid making the same poor choice.

77As stated, the overarching sentencing principle in s.718 is the protection of society. In many cases, courts have decided against CSO’s in cases involving possession of a loaded firearm because separating an offender from their community is the only way to achieve public protection. It sends a strong message, especially in marginalized communities, when courts denounce gun violence by putting the safety of others before the interests of an offender. In my view, this message is not paramount on the facts of this case because separating Rychez from his community would frustrate the sentencing principles. For reasons expressed, Rychez has very strong rehabilitative potential. He is a young Black-man who has the support of his family, community and others (including law enforcement) and has the ability to make an important contribution to the public if given the opportunity. I expect he will make the right decisions going forward. His lived experience in his community and brush with the criminal justice system can serve as the practicum to his academic studies. Putting him behind bars, even for months, will shatter this potential and as my sister colleague Green J. eloquently held: result in yet another statistic of a young Black-male who is over-represented in prison.

78In Proulx, Lamer J. writing in the Supreme Court held a conditional sentence will “generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community and promotion of a sense of responsibility in the offender”. 36 In R. v. Sharma, the Court of Appeal affirmed this reasoning and held a CSO may be available even in cases where deterrence and denunciation are the paramount sentencing objectives. 37 In R. v. Ali, a case after Morris, the Court of Appeal continued to remind sentencing Judges of the wisdom of this reasoning. 38 In my view, a proper calibration and blending of all the sentencing principles and objectives in this case does not necessarily call for a jail sentence behind bars despite the gravity of possessing a loaded firearm in a vehicle. I find a properly structured CSO can meet the goals of sentencing and would be consistent with the fundamental purpose and principles of sentencing.

79Finally, a CSO in a case involving possession of a loaded firearm would not be a rare sentence and would not offend the principle of parity. A sampling of the caselaw reveals a CSO has been imposed by various levels of court in varying circumstances, some of which are more serious than the facts of this case. For example:

• In R. v. Desmond-Robinson, 39 a case after Morris, the Ontario Court of Appeal overturned an 18-month jail sentence behind bars and imposed a 2-year-less-1-day CSO followed by a 2-year probation order. The offender was in possession of a sawed-off shotgun in his backpack and there was ammunition for the rifle in his jacket hanging in the same closet. He was also charged with drug offenses and convicted after trial. The sentencing Judge considered the extensive social context evidence and held there was rehabilitative potential but imposed a jail sentence behind bars holding the seriousness of gun offences precluded a CSO. The Court of Appeal held the sentencing Judge erred in principle by making such pronouncement adverting to Morris that a CSO may be well be appropriate “in cases like this one”. 40
• In R. v. Beharry, 41 Schreck J. in Toronto, sentenced a 32-year-old racialized offender to a CSO of 2-years-less-1-day after trial. The offender carried a loaded firearm in his car for his own protection because like Rychez, he lived in a neighborhood with frequent gun violence. The offender experienced some racism growing up but otherwise did not have as strong rehabilitative potential as Rychez.
• In R. v. McLarty-Mathieu, 42 Green J. in Oshawa, imposed a 20-month CSO with a 16-month probation order on an offender who possessed a loaded firearm in a vehicle that he was operating while impaired by alcohol. The firearm was loaded with 10 rounds of ammunition, but none were in the chamber. The EPSR revealed the offender grew up with challenging life circumstances mired with poverty and armed himself with a weapon to protect himself. Unlike Rychez, the offender spent almost double the amount of time on house arrest (3-years) which the court used in determining the length of a jail sentence and the length of a CSO.
• In R. v. Goodridge, 43 Dumel J. in Ottawa, imposed a 2-year-less-1-day CSO less 4-months credit for time spent on bail along with a 3-year probation order on an offender who was convicted of possessing a loaded firearm and trafficking in crack cocaine. The offender was a 23-year-old Black offender who grew up in a neighborhood riddled with drugs and crime and had negative peer influences. The PSR and EPSR revealed he caried a loaded firearm for his protection due to fear. The offender spent 184 days on house arrest and 83 days in custody before being released on bail. The offender was convicted after trial and had far less rehabilitative potential than Rychez.

80In Morris, the Court of Appeal imposed a global jail sentence of 2-years-less-1-day less credit for pre-sentence custody along with an 18-month probation order. The court observed counsel did not suggest Mr. Morris should receive a CSO because at the time of sentencing he was in custody on other charges. Further, the court added if Mr. Morris was before the court exclusively on the loaded firearm charges and a CSO like that ordered in R. v. Anderson was available, the sentencing Judge would have had to give that option serious consideration. 44 Ultimately, the court stayed the sentence to be served save and except the ancillary orders. In comparing the circumstances in Morris to this case, a fundamental difference which is present here that was not present in Morris is that Rychez accepted personal responsibility for his crimes by pleading guilty and did so almost immediately upon arrest. He did not accuse the police of planting the firearm nor offer false evidence. This factor, along with many others including his very strong rehabilitative potential, increases his personal responsibility and separates the two cases and tilts the balance in favor of a CSO.

81In cases after Morris where CSO’s were not imposed, there were more aggravating features that did not mitigate the personal responsibility of the offender, the offender had less rehabilitative potential or the sentencing record did not otherwise support a CSO. In some cases, like the situation in Morris, the offender was already in custody at the time of sentencing which made imposing a CSO a less practical option, and nobody advocated for a CSO, or it would have been inappropriate for other reasons. In the Central East Region where this case originates, the following examples come to mind:

• In R. v. Williams, 45 a decision from Oshawa, a 20-year-old offender was found guilty after trial of various firearm related offences including possessing a loaded firearm. The offender did not have a criminal record. The court did not have the benefit of an EPSR and therefore did not know why the offender possessed a loaded firearm. The court imposed a global sentence of 30 months imprisonment less credit for pre-sentence custody and imposed a further 361 days. Notably, the offender was already in custody at the time of sentencing and the parties did not request a CSO.
• In R. v. Lewis, 46 a decision from Newmarket, an 18-year-old offender plead guilty to possessing a loaded firearm which was loaded with 8 rounds of ammunition along with a round in the chamber. His co-accused was also in possession of a loaded firearm along with various drugs. An EPSR revealed the offender experienced anti-Black racism causing him to move from Barrie to North York and he possessed the firearm for protection. Notably, the court was not asked to consider a CSO because the defence advocated for a suspended sentence with a probation order after credit for pre-sentence custody. The court imposed a global 18-month jail sentence less credit for pre-sentence custody leaving a sentence of 106 days to be served.

F. Conclusion

82For all the above reasons, I find a fit and proportionate sentence in this case is a CSO of 2-years-less-1-day for the s.95(1) offence. I have considered the recommendation for a 2-year probation order but in my view, it is not necessary given all the rehabilitative work that has already been undertaken by Rychez while on bail. Instead, I will impose a 1-year probation order. The maximum length of the CSO gives effect to the seriousness of the offences involving two parties who both possessed loaded firearms in a vehicle. I have considered time spent on a restrictive bail order (16 months) and will accept the defence invitation to use this time as an additional factor in favor of a CSO. I will also consider this time as a factor in reducing the length of a probation order to 1-year.

83I will accept the joint recommendation of the parties and impose a 6-month jail sentence and will permit Rychez to serve this as a CSO on a concurrent basis with the s.95(1) offence. A CSO for this offence is not barred by statute and is consistent with the purpose and principles of sentencing. The concurrent sentence achieves the objective of totality and reflects the overall culpability of the offender.

84It should be clear to Rychez that my sentence is a jail sentence which he is being permitted to serve in his community. While the sentence will look different as it will not be behind bars, it will feel like a jail sentence with meaningful restrictions on his liberty and there will be consequences for failing to abide by the Order including being charged with a new offence and a hearing to determine whether the sentence should be collapsed into a sentence behind bars. It is more than just a probation order and it will require sustained effort and hard work. It is my view that the CSO should be structured to mirror a jail sentence where Rychez could earn statutory remission for good behavior, thus the period of house arrest should be for 8 months, followed by a restrictive curfew condition for the next 8 months (10pm to 6am) leaving 8-months less-1 day. I will invite submissions on reasonable exceptions to both the house arrest and curfew to assist with his rehabilitation including counselling, schooling, scheduled medical/therapy appointments and employment with proof of same. I will recommend Rychez pursue counselling with the TAIBU Community Health Centre which is located in the Malvern community and provides culturally responsive services to the Black community. It is expected Rychez will continue his studies with U of T. I will also direct that Rychez perform 50 hours of community service work during his probation order to make reparations to his community. I would commend him to do this work with at-risk youth in his community so he can pass his experience to them.

85In addition, the CSO will have a specific exception to the house arrest term compelling Rychez to attend before me at the 6 and 12-months mark of the Conditional Sentence Order so I can monitor his jail sentence in the community. This will serve as a further measure of personal accountability and responsibility. I have chosen these two periods of time deliberately because I expect Rychez will have completed some job skills training and will be graduating from U of T in November 2023. The court hopes to hear positive things about his progress, his contribution to his community and his outlook on his future.

86Finally, on consent, I will impose the following ancillary Orders:

• An Order for 1-year prohibiting Rychez from operating or being in care or control of a motor vehicle pursuant to s.320.24(4) of the Code,
• An Order pursuant to s.109(2) of the Code prohibiting Rychez from possessing firearms and other items described in s.109(2) for life, and
• An Order pursuant to s.487.051(3)(b) of the Code requiring a DNA sample for inclusion in the national databank in relation to the s.95(1) offence.

87I will invite submissions on the two victim fine surcharges and whether they should be waived on account of undue hardship.

88The court would like to thank counsel for their excellent and comprehensive materials and their reasoned submissions in this challenging case.

Released: November 23, 2022 Justice F. Javed

1 These reasons were read into the record without the footnotes and copies were provided to the parties. If the reasons are ordered in the future, these written reasons will take precedence over the oral reasons. 2 2021 ONCA 680 [hereinafter “Morris”] 3 Morris, supra at paras. 91-100 4 Morris, supra at para. 40 5 Morris, supra at paras. 91, 128 6 2022 ONCJ 498 7 See also R. v. Walters, [2022] O.J. no. 4694; 2022 ONCJ 484 at para.61 where Schwarzl J. helpfully summarized other examples of evidence that can be presented to address this issue. See also R. v. Martin, [2021] O.J. No. 7423; 2021 ONSC 4711 (SCJ) per Barnes J. who discussed the role of Integrated Race and Culture Assessment (IRCA) reports which are similar to EPSR’s in Ontario. 8 After submissions, Mr. Jafari requested an EPSR which the Crown did not oppose. The sentencing hearing was adjourned accordingly with a s.11(b) Charter waiver. 9 2014 SCC 26, [2014] 1 S.C.R. 575 10 (2006), 79 O.R. (3d) 321 (Ont. C.A.) 11 The reference to York University was in error as it’s in fact University of Toronto. 12 Morris, supra at para. 58 13 Morris, supra at para. 69; Donison, supra at para. 31 14 See R. v. Downes (2006), 205 C.C.C. (3dd) 488 at para. 33 per Rosenberg J. 15 2015 SCC 15, [2015] 1 S.C.R. 773 16 Nur, supra at paras. 122, 82 17 Morris, supra at para. 177 18 McLarty-Mathieu, supra at para. 82 19 [2022] O.J. No. 713; 2022 ONCJ 57 20 R. v. Rawn, 2012 ONCA 487 at paras. 29, 30 21 2014 ONCA 49 at para. 18 22 2016 ONSC 5025 , [2016] O.J. No. 4273 (SCJ), at paras. 21-25 23 McKenzie, supra at paras. 21-25 24 Morris, supra at para. 68; See also R. v. Beharry, 2022 ONSC 4370 at paras. 19, 20; R. v. Donison, 2022 ONSC 741 , [2022] O.J. no. 711; 2022 ONSC 741 at para. 32 25 Donison, supra at para. 32; citing R. v. Wright, 2018 ONSC 4209, at para. 39; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 15; R. v. Brown, 2013 ONSC 4230, at para. 51; R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.), at para. 25. 26 See: R. v. Wong, 2012 ONCA 767, at para. 11; R. v. Omoragbon, 2020 ONCA 336, at para. 22; R. v. Dubajic, 2021 ONSC 1390, at para. 39. 27 2007 ONCJ 619 at para. 25 28 [2022] O.J. No. 318; 2022 ONCJ 29 at para. 68 29 See R. v. Friesen, 2020 SCC 9, 391 C.C.C. 93 d) 309 at para. 30; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 37. 30 Morris, supra at paras. 91-100 31 Morris, supra at para. 102 32 Donison, supra at para. 43 33 R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 113-114; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1999), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23; R. v. McGill, 2016 ONCJ 138, at para. 104; R. v. Reis, 2012 ONCJ 373, at para. 26. 34 Morris, supra at para. 180 to 182 35 On November 19, 2022, Bill C-5 (An Act to amend the Criminal Code and the Controlled Drugs and Substances Act) received royal assent and came into law. It allows, inter alia, for the greater use of conditional sentences. The legislative changes in Bill C-5 do not impact the parties’ position on sentence in this case as Parliament repealed ss.742.1(e) and (f) but maintained s.742.1(a) which was the subject of argument in this case. 36 Proulx, supra at para. 78 37 2020 ONCA 478 , [2020] O.J. No. 3183 at paras. 41, 67; citing R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207 at para. 35 38 2022 ONCA 736 at para. 42 39 2022 ONCA 369 40 Ibid, at para. 13 41 Beharry, supra note 24 42 McLarty-Mathieu, supra note 6 43 2022 ONCJ 139 44 Morris, supra at para. 181 45 Williams, supra note 19 46 Lewis, supra note 28