ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JUSTICE TURNER
Sentencing Judgment
Before Justice B. Jones
Heard on March 23, 2023
Reasons for Judgment released on March 31, 2023
C. Josic counsel for the Crown
G. Gray counsel for J. Turner
Introduction
1In R. v. Nur, 2015 SCC 15, Chief Justice McLachlin wrote at para. 1 that “[g]un-related crime poses grave danger to Canadians.”
2On November 30, 2022, Justice Turner pleaded guilty to two counts of possessing a prohibited firearm knowing that he was not the holder of a licence or a registration certificate (Criminal Code section 92(1)). Upon executing a search warrant at his residential address, Toronto Police Service (TPS) officers located three prohibited firearms and considerable amounts of ammunition.
3On March 23, 2023, Mr. Turner appeared before me for a sentencing hearing. Following the submissions of counsel, I reserved my decision. These are my reasons.
Agreed Statement of Facts
4The parties filed an agreed statement of facts (“ASF”) for the guilty plea. I have summarized the ASF for this sentencing judgment.
5On May 8, 2021, TPS officers obtained a search warrant for Mr. Turner’s residential address of 19 Greenwood Avenue in Toronto. During the execution of the warrant officers located three carelessly stored prohibited firearms and 122 rounds of .22 calibre ammunition. The firearms consisted of:
(i) A stolen Sig Sauer 716 assault rifle;
(ii) A Cooey Model 600 .22 calibre rifle with a bayonet (with the barrel cut off); and
(iii) A Remington .22 calibre rifle (with the barrel partially sawed off).
6TPS officers also located:
(i) 8 rounds of .22 calibre ammunition in a small wooden chest in the living room,
(ii) 85 rounds of .22 calibre short rim fire ammunition and 29 rounds of .22 calibre long rim fire ammunition in a green Tupperware container found in the cold air return in the living room;
(iii) An AR 15 5.56mm / .233 rifle magazine with a 10-round capacity; and
(iv) Gun oil;
7Mr. Turner accepted that he was in possession of the firearms and ammunition prior to the execution of the search warrant.
Background of the Offender
8Mr. Turner is 33 years old. He was born and raised in Toronto. He had a normal childhood with his parents, who are married.
9When he was 16 years old he moved out and lived with his girlfriend. This was his first serious relationship. They have a ten-year-old daughter together. They have since separated and his ex-girlfriend lives elsewhere in Ontario. As a result, Mr. Turner does not see his daughter regularly. He voluntarily pays his ex-girlfriend $200 / month in child support.
10More recently, Mr. Turner has been in a relationship with Ms. Alexandra Langford-Pezzo. They have a two-year-old son. They separated a few years ago but Mr. Turner provides financial support and sees his son regularly.
11Mr. Turner did not finish high school but acquired his GED. He also completed a Police Foundation Program at Trillium College. He has worked in landscaping and a factory. He began an arboricultural business in 2018 called “Justrees”.
12Mr. Turner does not have any substance abuse problems. While he has used alcohol, marijuana and cocaine, he states he is not addicted.
13Ms. Langford-Pezzo described Mr. Turner as a “good-hearted person”. While they were no longer romantically involved, she acknowledged he spent time with their son one or two times per week. She also offered her support for his future well-being.
14She believes Mr. Turner was diagnosed with schizophrenia in the past. Mr. Turner denied any such formal diagnosis. He had been in the hospital a few times for “manic episodes” and was “on and off medication” prescribed by his family doctor.
Testimony of Ms. V. Hawkes
15Ms. Hawkes testified at the sentencing hearing. She is Mr. Turner’s Aunt. Before she retired, she was a parole and probation officer, court officer and correctional officer. She now teaches at a paralegal program.
16She expressed her love and support for her nephew. She has seen his character grow over the past few years. He understands the severity of the offences before the court and the impact they have on society. She believes he will never be before the criminal courts again. She stated he takes full responsibility for his actions.
Positions of the Parties
17Ms. Josic submits that the appropriate range of sentence for these offences is 4-6 years in prison. She highlighted the fact there were three prohibited firearms carelessly stored. The placement of these weapons in a residential neighbourhood would strike fear into the hearts of anyone in the community who knew of their existence. An exemplary sentence is required.
18She referred me to several Court of Appeal decisions that emphasize the need for courts to impose hefty penalties on those who possess illegal firearms and endanger the lives and safety of others. While Mr. Turner’s conduct does not fall squarely at the “true crime” end of the spectrum identified in the Nur decision because he did not possess the firearms in public for an illegal purpose, there are still many aggravating factors.
19Mr. Gray submits a sentence of three years’ imprisonment is appropriate. Mr. Turner has accepted responsibility for these offences. He is a young man with considerable rehabilitative potential. He has the love and support of his family and is at little to no risk of re-offending. The five-year sentence sought by the Crown is disproportionately high. He also requests over five months’ Downes credit for the house arrest conditions on Mr. Turner’s bail. He respectfully suggests a future custodial term of 2.5 years is sufficient to reflect the appropriate sentencing principles.
20Mr. Gray directed me towards several prior Superior Court decisions where sentences of 2-3 years were imposed for first time offenders found guilty of illegal firearm possession. Typically, these cases involved a single firearm located in the offender’s residence following the execution of a search warrant: see R. v. Prosser, 2014 ONSC 64661, R. v. Browne, 2014 ONSC 4217, R. v Tyrell, 2013 ONSC 6555, and R. v. McKenzie, 2016 ONSC 5025.
Sentencing for Firearms-Based Offences
21Criminal Code section 718 identifies the purpose of sentencing as being “to contribute… to respect for the law and maintenance of a just, peaceful and safe society.” Sentencing principles include denouncing unlawful conduct, general and specific deterrence, and rehabilitation. A sentencing court must blend these various objectives, but the proper blending depends on the nature of the offence and the background of the offender: see R. v. McArthur, 2004 CanLII 8759 (Ont. C.A.), at paras. 43-44.
22Proportionality remains the “fundamental and overarching principle of sentencing”: see R. v. Morris, 2021 ONCA 680, at para. 61. A sentence must reflect both the gravity of the offence and the degree of responsibility of the offender: Criminal Code section 718.1. In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada held that “the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender”: see para. 12.
23General deterrence and denunciation are the primary sentencing principles in cases involving the unlawful possession of firearms: see R. v. Marshall, 2015 ONCA 692, (Ont. C.A.) at para. 49; R. v. Danvers, 2005 CanLII 30044 (Ont. C.A.) at para. 78. It has often been observed by criminal courts in Toronto but bears repeating here that firearms are inherently dangerous and remain an ongoing concern to the residents of this city.
24For the offence of unlawful possession of a loaded prohibited firearm (Criminal Code section 95) courts have regularly imposed sentences of three to five years for a first-time offender: see R. v. Mansingh, 2017 ONCA 68 at paras. 21-24; R. v. Crevier, 2015 ONCA 619, at paras. 128-9; R. v. Elvira, 2018 ONSC 7008, at para. 27.
25In this case, while the firearms were not loaded when they were located at Mr. Turner’s home, they were operational and there was readily accessible ammunition. There was no lawful purpose for Mr. Turner possessing them. He created a serious and ever-present risk that they could be used to cause harm or death to other persons.
26In R. v. Brown, 2009 ONCA 563, the Ontario Court of Appeal held that sentencing judges should consider the “serious concern of growing gun violence in Toronto”: see para. 33. A decade later, in R. v. Omar, 2018 ONCA 975, the Court of Appeal again addressed the “grave problem posed by illegal guns” in our society. The mere existence of these weapons in our midst tears at our collective sense of safety and security. Justice Sharpe noted that the community understandably desires to “live free from the threat of illegal handguns” and that criminal justice system participants appreciate that “the public is understandably alarmed by the prevalence of gun violence that threatens public safety”: see para. 54.
27While these remarks were made about handguns, I find they are equally applicable to the types of firearms located in Mr. Turner’s home. In R. c. Colangelo, 2017 QCCA 195, the Quebec Court of Appeal imposed a two year sentence for an offender who pleaded guilty to possession of an unloaded semi-automatic rifle with accessible ammunition. The firearm was located following the execution of a search warrant at the offender’s residence. Just as Mr. Turner attempted to conceal his firearms, the offender in Colangelo hid the firearm in a bag in a basement bedroom. The Court of Appeal held that long guns may be just as dangerous to the safety of the broader community as handguns, and this is especially the case where they are semi-automatic: see paras. 25-30, leaving to appeal to the Supreme Court of Canada refused: 2017 CanLII 42343.
28In R. v. Chizanga and Meredith, 2020 ONSC 4647, Justice Harris of the Superior Court of Justice condemned the “evil of military assault type weapons”: see para. 16. He further wrote as follows at paras. 18 - 20:
Guns are a disease and a disease we have the means to combat if not outright defeat. Not doing so is a grave abdication of the community’s social responsibility to nurture and ensure the well-being of the country.
It is even more pressing now what with the continuing increase of gun crimes and violence in the GTA: see Justice Moldaver in dissent in Nur, para. 131 and see generally with respect to taking into account local conditions, R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, at paras. 90-104.
29While I did not hear specific evidence regarding the destructive capabilities of the firearms seized from Mr. Turner’s home, there is no dispute they had the potential for great harm. Judges of the Ontario Court of Justice see the devastating effects of gun violence regularly. As my colleagues have, I take judicial notice how illegal firearms lie at the heart of so many crimes of violence, including murders: see, for example, R. v. Rudder, 2022 ONCJ 367, at para. 48.
30In R. v. Mesinele, 2023 ONCJ 28, Justice Felix of the Ontario Court of Justice recently wrote of the “crisis of firearms-related crime in the Greater Toronto area”: para. 32. That crisis, sadly, continues, and must be abated.
31By keeping these weapons in his home, Mr. Turner recklessly endangered the safety of everyone in his community, even if that was not his intention. The potential for reasonably foreseeable harm that can flow from an offence must be considered at sentencing: see R. v. Friesen, 2020 SCC 9, at para. 84. The presence of these firearms was inherently dangerous to Mr. Turner and his family members. Indeed, on the day of his arrest, TPS officers saw him, his ex-partner, and his youngest child at his residence.2 Exposing a child to the presence of carelessly stored prohibited firearms and ammunition is an aggravating factor.
32There is no evidence Mr. Turner possessed the firearms as “a tool of his criminal trade”, which would have placed him at the most severe end of the spectrum of firearms offences: see R. v. Nur, 2013 ONCA 677, at para. 51; R. v. Beharry, 2022 ONSC 4370, at paras. 30-31. Yet I cannot ignore the reality that they posed a risk to any innocent bystander who could have been maimed, or even killed, by a stray bullet should someone have been able to discharge them for whatever reason.
33When a single prohibited firearm is located by police officers following the execution of a search warrant, Mr. Gray is correct that typically a sentence of no more than three years’ imprisonment is imposed, regardless of whether the firearm was a handgun or a long-gun. In addition to the cases he provided to the court, the following recent decisions are instructive: R. c. Baptiste, 2020 QCCQ 1813 (an automatic rifle equipped with a 30-bullet high capacity magazine), R. v. Dalton, 2018 ONSC 544 (a loaded .357 handgun), R. v. Talbi, 2020 ONCA 388 (loaded .22 calibre revolver), and R. v. Johnson, 2022 ONSC 2688 (a loaded 9mm handgun).
34Similarly, in Beharry, supra, police officers located a loaded handgun in the offender’s car inside a fanny pack on the back seat. Justice Schreck held that the three-to-five year range often associated with a section 95 offence should be restricted to situations where “the use and possession of the gun is associated with criminal activity”: see para. 31. The Court imposed a conditional sentence of two years less a day given the offender’s strong rehabilitative prospects, status as a first-time offender, and guilty plea. The importance of rehabilitation as a sentencing principle in these cases must never be diminished, as it is one of the “fundamental moral values” in our criminal justice system: see R. v. Bissonnette, 2022 SCC 23, at para. 48.
35Nevertheless, where there are multiple prohibited firearms recovered by the police, the penalties must increase. In R. v. Baldwin, 2021 ONSC 7025, the offender pleaded guilty to two counts of unlawfully possessing a loaded, restricted firearm (Criminal Code s. 95) and two counts of possessing a firearm knowing he was not the owner of a licence (Criminal Code s. 92). The offender resided in a unit on the second floor of a building on the Danforth in Toronto. TPS officers executed a search warrant and located two firearms inside a backpack on the floor of a hallway. The offender was home with his common-law spouse and their three-year old child. The first firearm was an AR-15 assault rifle with a round of .223 calibre ammunition in the chamber and 19 rounds of ammunition within the magazine. The second firearm was a Cooey Model 60 .22 Caliber rifle with 3 rounds of .22 caliber ammunition in the magazine. It had a sawed-off barrel. Both were prohibited firearms. The Court held that possession of more than one illegal firearm is an aggravating factor, as is the unsafe storage of those firearms: see paras. 48-50. The Court concluded that the appropriate sentence was four years’ incarceration: see para. 76.
36Furthermore, the large quantity of ammunition associated with Mr. Turner’s unlawfully possessed firearms constitutes a separate aggravating factor. The “illegal possession of ammunition cannot be disassociated from its potential use” and raises significant public safety concerns: see R. v. Charles, 2013 ONCA 681, at para. 100.
Guilty Plea and Expression of Remorse
37Mr. Turner entered a guilty plea following the conclusion of a Garofoli hearing. While this was not an early plea, Mr. Turner should not be denied credit for his plea because he challenged the constitutionality of the search of his home. It was a well-argued, meritorious Charter application. I accept his plea represents acknowledgment of his wrong-doing and that is a mitigating factor. Furthermore, he still saved the court the time that had been previously set aside for a trial.
38Regarding the offences, Mr. Turner told the author of the PSR that the presence of the firearms in his home was a “misunderstanding”. He allowed a friend to “couch-surf” in his home for five years. One day he found his friend dead on the bathroom floor, apparently from an overdose. He had forgotten about the firearms located by the police, which he claimed belonged to his friend until the police located them when the search warrant was executed.
39Mr. Gray asked me to disregard this portion of the PSR and that it should not factor into my analysis. I nevertheless observe that the onus is on the defence to establish a mitigating factor on a balance of probabilities: Criminal Code section 724(3); R. v. Smickle, 2013 ONCA 678, at para. 18. As previously discussed, these are very dangerous weapons that could have resulted in untold destruction in the wrong hands. Even on this version of events, once Mr. Turner knew of the firearms’ presence he chose to do nothing to remove them. Therefore, he became responsible for the danger they represented. While I do not find this explanation to be an aggravating factor, even if it were accepted, it is not mitigating whatsoever.
First Time Offender
40Mr. Turner has no prior criminal record. At 33, he remains relatively young. Generally speaking, sentences for first-time youthful offenders should focus on individual deterrence and where appropriate, rehabilitation: see R. v. Thurairajah, 2008 ONCA 91, at paras. 41-42. Where a first sentence of imprisonment is required in order to meet the applicable sentencing principles and adequately reflect the offender’s moral culpability, it should be as short as possible and “tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence: see R. v. Priest (1996), 110 CCC (3d) 289, 1996 CanLII 1381, (Ont. C.A.).
41That principle does not apply with as much force with respect to “very serious offences and offences involving violence”: see Priest at pg. 294. I cannot overstate that Mr. Turner’s firearms offences are extremely serious.
Impact Of A Custodial Sentence on Mr. Turner’s Children and Former Partners
42In R. v. Hills, 2023 SCC 2, the Supreme Court of Canada commented on the profound impact that a sentence of custody has not only on the offender himself, but also those who form part of his family and community. The Court wrote at para. 101:
Incarceration entails not only a complete removal of an offender’s liberty, it also has a ripple effect that touches nearly every aspect of the offender’s life and physical and mental health, employability, children, and community (R. Mangat, More Than We Can Afford: The Costs of Mandatory Minimum Sentencing (2014), at pp. 40‑44).
43Mr. Turner is the loving father of two children. He sees both his children as much as is realistically possible given he has separated from both of his former partners. He provides financial support. Any period of incarceration I impose will have a significant, and negative, collateral impact on his relationship with his children and his ability to provide future support. He will certainly be denied access to his children while he is in custody and they will lose touch with their father during some of their formative years. This is a particularly serious collateral consequence for a sentencing court to weigh heavily: see R. v. L.C., 2022 ONCA 863, at para. 24. Nevertheless, the final sentence imposed must respect the proportionality principle, adequately accounting for both the gravity of the offence and the degree of responsibility of the offender.
Credit For Restrictive Bail Conditions
44Mr. Turner has been on a release order with a “house arrest” term since May 12, 2021. He was only permitted outside of his place of residence for a medical emergency, or if he was in the immediate presence of one of his sureties. He has abided by this condition for nearly two years.
45In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), the Ontario Court of Appeal held that time spent by an offender under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is within the discretion of the sentencing judge: see R. v. Schlaepfer, 2022 ONCA 566, at para. 13. The impact of the conditions on the accused is what is relevant, not the reasonableness of the conditions themselves.
46The Court of Appeal in Downes provided guidance for sentencing courts regarding whether to give credit for time on bail conditions. At para. 37 the Court wrote:
The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.
The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.
Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.
47While I accept that any term of house arrest imposes some difficulty on an accused person, I did not hear any evidence that Mr. Turner suffered significant personal hardship. He was able to continue with his business endeavours, although he often required his father (surety) to escort him to certain locations for work purposes. It was also harder for him to see his older child.
48He made productive use of his time on bail which does speak to his rehabilitative potential. I consider this a mitigating factor.
49I grant four months’ credit for his time spent on house arrest.
Conclusion
50Mr. Turner’s moral culpability for these offences remains very high. The presence of these firearms and ammunition endangered everyone near them – including not just members of the community, but his parents, ex-partner and youngest child.
51Balanced against the gravity of these offences is a young man who is loved and supported by his family. Mr. Turner may yet do great things with his life in the future. However, he must be held accountable for his actions in this case.
52A sentence of 5 years would have been entirely appropriate given the multiple firearms located in Mr. Turner’s residence and the quantum of ammunition. Acknowledging Mr. Turner’s guilty plea, youth, family support, and the other mitigating factors, I impose a sentence of four years’ custody. After deducting four months credit for his time on house arrest and another eight days for his pre-sentence custody, the remaining sentence will be 3 years, 7 months and 22 days.
53Mr. Turner is prohibited from possessing any firearm, other than a prohibited or restricted firearm, any crossbow, restricted weapon, ammunition and explosive substance for 10 years: Criminal Code section 109(2)(a). He is prohibited from possessing any prohibited firearm, restricted firearm, prohibited device and prohibition ammunition for life: Criminal Code section 109(2)(b).
54These offences are secondary designated offences for DNA purposes and Mr. Turner is ordered to have samples of bodily substances taken for forensic DNA analysis: Criminal Code section 487.051(3).
55I waive the victim fine surcharges.
56I issue a forfeiture and destruction order of the seized firearms and ammunition: Criminal Code section 491(1)).
Released: March 31, 2023
Signed: Justice Brock Jones