Court File and Parties

DATE: 2023-11-14 Toronto ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

JUSTIN BARRETT

Before Justice Mara Greene

Reasons for Judgment released November 14, 2023

Counsel: B. Janzen…………………………………………………………………… for the Crown M. Leitold……………...…………………………………………………....for Justin Barrett

1On January 11, 2023, Mr. Barrett entered a plea of guilty to a series of offences including failing to comply with a release order, possession of cocaine, possession of fentanyl, possession of a prohibited loaded firearm and possession of an oversized magazine.

2The sentencing hearing was adjourned so that so that what is commonly referred to as a “Morris” report could be prepared. These reports are in high demand, yet so few people are able to write them. As a result, this sentencing was delayed by nine months.

3By the time of actual sentencing hearing, both the Crown and defence jointly requested a conditional sentence order. They differed, however, on the legal mechanism supporting a conditional sentence order and the length of that order. On November 2, 2023 I sentenced with Barrett with reasons to follow. These are my reasons.

Circumstances of the Offence

4On August 17, 2021 Mr. Barrett was seen by police outside his residence, in a parking lot, without his surety. At the time, he was on a house arrest release pending trial. Mr. Barrett fled the scene and in doing so discarded a bag. The police seized the bag and found 9.2 grams of cocaine inside the bag.

5Mr. Barrett was apprehended by police. During a search of Mr. Barrett incident to his arrest, the police located 10.38 grams of fentanyl and a loaded firearm (a Glock 19). The firearm had a high-capacity magazine and was modified to make it into an automatic weapon.

Circumstances of the Offender

6In the case at bar, I received both a pre-sentence report written by a probation officer and a social history report from Dr. Sibblis. I was also provided with records from the jail where Mr. Barrett had been detained for over 200 days as well as a report about what he has been doing in the community since his release from custody. As a result, I have a significant amount of information about Mr. Barrett and his family. This information has been incredibly valuable as it has allowed me to really understand Mr. Barrett and how he ended up with a loaded firearm and drugs in his possession on August 17, 2021.

7Mr. Barrett is 27 years old. He was born in Toronto and his cultural background is Jamaican. Mr. Barrett’s mother was only sixteen years old when she became pregnant with Mr. Barrett. Mr. Barrett’s father did not live in Canada and met Mr. Barrett’s mother when he was in town visiting family. Mr. Barrett has only met his father once. He was very young when this occurred. Mr. Barrett’s father was deported to Liberia when Mr. Barrett was eight years old. He has had no contact with him since that time.

8Dr. Sibblis, in her report, wrote that to properly understand Mr. Barrett’s choices and circumstances, his mother’s background must also be understood. Mr. Barrett’s mother was not raised by her own mother, as her mother was deported when Mr. Barrett’s mother was only three years old. Instead, Mr. Barret’s mother was raised by her grandmother and grandfather. They lived with a host of relatives including four uncles, one aunt, and Mr. Barrett’s mother’s sister. Mr. Barrett’s mother suffered sexual abuse in this household. Despite CAS involvement, Mr. Barrett’s mother was not protected and was exposed to abuse for most of her childhood. I will not detail al the abuse she suffered, but I am satisfied that her life was filled with trauma of the kind that most of us could not imagine.

9After Mr. Barrett was born, he and his mother lived in a shelter until he was four months old at which time his mother was able to secure her own residence. Mr. Barrett’s mother lost this residence a short time later when a visitor caused a fire in the residence. As a result, Mr. Barrett’s mother had to move back in with her grandmother when Mr. Barrett was one year old.

10Mr. Barrett’s mother made efforts to upgrade her education over the years but met with a series of hurdles. At the age of 22 she was introduced to crack cocaine. Ms. Barrett became addicted to the drug and started to work in the sex trade for survival.

11Due to Mr. Barrett’s mother’s understandable struggles, Mr. Barrett was often not picked up from daycare which led to CAS apprehending him. Mr. Barrett was placed in the care of his great grandmother. After eight months, Mr. Barrett was returned to his mother but was apprehended again when it was discovered that he was being left home alone for extended periods of time.

12When Mr. Barrett was six or seven years old, his mother stopped working in the sex trade and was able to maintain her own residence. Mr. Barrett returned to his mother’s residence.

13Mr. Barret’s early life was marked by constant upheaval. He moved around a lot and had to transition between his mother’s residence, being in foster care, and living with his great grandmother. This also led to Mr. Barrett having to change elementary schools with some frequency.

14After grade 4, Mr. Barrett changed schools more frequently. By grade 5 he was in a “behavioral program”. This pattern of being placed in such programs continued though his education.

15In grade 7, Mr. Barrett and his family lived in a shelter for 8 or 9 months before they moved to the Bishop Tutu neighbourhood where they were still living at the time of this offence.

16Mr. Barrett’s involvement with the criminal justice system began when he was in grade 7 when his school principal called the police on him for playing a common game referred to as “Birthday Beats”. It was seen by the players as a friendly game, but not perceived as such by the principal. Mr. Barrett’s first exposure to the police, however, came years earlier. The police had been called to his residence because of altercation between his mother and her partner. He also witnessed police harassing his aunt and uncle. According to Dr. Sibblis, “these interactions have left an indelible mark on his perception of law enforcement”.

17Mr. Barrett was expelled from school in grade 8 because of a fight and was not permitted to attend his graduation. Despite this event, Mr. Barrett typically does well in school and excels in subjects that he is passionate about. Mr. Barrett graduated from high school in 2015.

18Mr. Barrett was diagnosed with ADHD at a young age. He was prescribed medication as a young person but his mother did not like the effects it had on him, so she discontinued giving him his medication.

19In addressing his overall behaviour, Dr. Sibblis noted that Mr. Barrett was exposed to domestic violence as a child. She wrote that “children who witness domestic violence such as that to which Mr. Barrett was exposed, are often traumatized. Trauma in young people manifests in a myriad of ways, including stunted cognitive/emotional development and poor decision-making skills. Mr. Barrett may have had trouble focusing and attending to the tasks at hand in school due to trauma and anxiety, which often mimic the symptoms of ADHD.”.

20As Mr. Barrett entered his teen years he lived in social housing with high rates of poverty and racial segregation. His background made him vulnerable to an inauspicious lifestyle through social influence. Moreover, he grew up in a neighbourhood with a reputation for drug and sex offences. Mr. Barrett’s neighbourhood exposed him to gun violence at a young age. His mother was a victim of gun violence as was a person who had been a father figure to Mr. Barrett.

21Mr. Barrett’s mother was involved with another man when Mr. Barrett was young. This man had mental health issues and Mr. Barrett witnesses domestic violence in his household. After this relationship ended, Mr. Barrett’s mother met another man, who became very close to Mr. Barrett. This was the first person that Mr. Barrett ever opened up to. Sadly, he was murdered in 2014.

22Dr. Sibblis identified the trauma Mr. Barrett has faced over his short lifetime. They include:

• Witnesses domestic violence;
• Losing a father figure to murder;
• Mother’s substance abuse;
• Neglect and abandonment at an early age;
• Removal from his home and mother;
• Threatening police presence;
• Intergenerational racial trauma.

23Since his arrest, Mr. Barrett started working with the Oaks Revitalization Association skills trade development program. He is looking for an apprenticeship in brick laying once this program is completed. This is a great program for Mr. Barrett, and he is doing very well in the program. Mr. Barrett is committed to this program and even wakes up daily at 4:00 am to travel to Kleinberg to attend the program.

24Mr. Barrett stated that he had the firearm in his possession for safety due the high level of violence in his neighbourhood.

Analysis

General Legal Principles

25A fundamental principle of sentencing is to protect the public and maintain a just and peaceful society through just sanctions. This is accomplished through imposing sentences that are proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which are outlined in section 718 of the Criminal Code.

26While the Criminal Code identifies a host of objectives that a judge must consider in assessing the appropriate sentence, how much weight a judge gives to any of the objectives is determined on a case-by-case basis. As was recently stated in R. v. Morris 2021 ONCA 680 “The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender”.

27In the case at bar, I received social context evidence about Mr. Barrett. This information, which I reviewed above, gave me detailed information about Mr. Barrett’s life and gave me a meaningful context in which to understand Mr. Barrett’s offending behaviours. The use of this kind of evidence was first addressed in R. v. Morris. In that case, the Court of Appeal held that social context evidence may be used to mitigate an offender’s degree of responsibility. It may also be used to help a sentencing judge fashion an appropriate sentence.

28This social context evidence does not serve to mitigate the seriousness of the offence. Instead, depending on the individual offender’s background, it may be mitigating in relation to the offender’s moral culpability. This evidence also “may inform how a sentencing judge balances the various sentencing principles in the circumstances of an individual sentencing: Morris, at paras 75-81, 102-107” (see R. v. Marier 2023 ONSC 5194 at para 71).

29When using this social context evidence to assess moral blameworthiness, a connection is required between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct. It has been repeated however, that connection is not the same as causation and, causation is not required (see R. v. Morris, supra, at paras 96 and 97 and R. v. Marier, supra, at para 72).

30The offences for which Mr. Barrett has admitted guilt, are very serious. He was found in possession of a loaded prohibited firearm. The firearm, which was a semi-automatic had been altered so that it was an automatic firearm, making it even more lethal. It also had an oversized magazine which also made the firearm more lethal. It is well recognized that gun crimes pose a real and immediate danger to public safety. As has been stated many times, “Handguns exist to maim or kill people”. In deciding to possess a loaded firearm, especially one that holds additional bullets and is altered to be fully automatic, the person possessing it must have decided that they were prepared to use it. Given the threat to public safety posed by firearms, the objectives of deterrence and denunciation are paramount.

31When firearms are linked to possessing drugs for the purpose of trafficking, the offence is viewed as even more serious. This is because the firearm becomes a tool of the trade. The range for possessing firearms in this kind of circumstance is significantly higher than where one possesses a firearm within the intention of using it to aid the commission of other offences. In the case at bar, Mr. Barrett was found in possession of both cocaine and fentanyl. It was not in his possession, however, for the purpose of trafficking. There was no admission that it was for the purpose of trafficking, he did not plead to this more serious offence and the Crown did not seek to prove possession for purpose of trafficking. In this circumstance, I cannot find that Mr. Barrett was in possession of the loaded firearm to assist with committing other criminal offences or that it was a “tool of his trade”.

Aggravating and Mitigating Factors

32There are a number of aggravating factors in this case that make the offence itself on the more serious end. Firstly, Mr. Barrett was in possession of a loaded firearm in a public place. As has been noted in many cases, the risk to public safety increases once the firearm is removed from a residence. Secondly, Mr. Barrett fled when confronted by police. This is an additional aggravating factor which increased the risk to public safety. Thirdly, the firearm was modified to make it even more dangerous and had an over capacity magazine. Fourthly, Mr. Barrett was also in possession of fentanyl and cocaine at the time of his arrest and fifthly, he was breaching a house arrest release.

33There are also a host of mitigating factors in this case. They are as follows:

• Mr. Barrett entered a plea of guilty.
• Mr. Barrett is taking responsibility for offences.
• Since his arrest, Mr. Barrett has engaged in meaningful programming through the Oaks Revitalization Association Skills Trade Development Program.
• Mr. Barrett is committed to learning new skills and changing his trajectory.
• Mr. Barrett’s future prospects are very good and include employment opportunities.
• Mr. Barrett’s time in pre-trial custody was particularly difficult. He was subjected to many lockdowns. More significantly, Mr. Barrett’s hand was injured when it was caught in the hatch of his cell during a dynamic event with a correctional officer. Mr. Barrett alleges he was assaulted by this officer. The entire event was captured on video but despite repeated requests from Mr. Barrett’s counsel, the jail has refused to provide Mr. Barrett with the footage. This, in my view, weighs in favour of Mr. Barrett’s description of the event being accurate.
• Mr. Barrett has been under a house arrest release for an extended period of time.

34There is also the social context evidence, which in my view, is mitigating in that it significantly reduces Mr. Barrett’s moral blameworthiness. I have already reviewed the details of Mr. Barrett’s childhood. It involved a series of traumatic events, exposure to racism, negative exposure to the police, poverty and violence.

35Dr. Sibblis, in her report, noted that Mr. Barrett faced a series of challenges growing up including unstable housing, poverty, exposure to violence, addiction, drugs and sex trade workers. She wrote “The school to prison pipeline is a linear construct that theorizes the movement of disadvantaged students along a trajectory beginning with unsupportive schooling and ending with prison incarceration. It asserts that students, most frequently those with learning disabilities, those from racially minoritized groups, and those with lower socio-economic status, who do not get the educational and/or social support they require from schools to be successful are systemically pushed out of schools and ultimately into the youth and criminal justice”.

36Mr. Barrett was diagnosed with ADHD as a young child. According to Dr. Sibblis there was nothing in Mr. Barrett’s school records that support a finding that Mr. Barrett was adequately supported in the education system. According to Dr. Sibblis, the above exposures coupled with the lack of support at school made him more vulnerable to “the allure of extra-curricular social group membership and at increased risk of participating in criminalized behaviour. Moreover, Dr. Sibblis further found that Mr. Barret’s “premature involvement with the police, the severity and frequency of the involvement and his subsequent mistrust of police was a direct result of the anti-black racist ideology in policing”.

37When I look at Mr. Barrett’s background and the link that Dr. Sibblis provides between his past trauma and life challenges and his vulnerability to engage in criminal conduct, I am satisfied that his overall moral blameworthiness is significantly reduced and this is a relevant and substantial mitigating factor.

Range of Sentence Normally Imposed for Similar Offences

38The range of sentences normally imposed where a firearm and drugs are possessed by the same person is three to five years. This range, however, is generally reserved for cases where the firearm is used as a “tool of the trade”. The range of sentence where an offender is in possession of a firearm without any drugs is often significantly lower. As was stated by Band J. in R. v. Edwards, 2023 ONCJ 53 at para 41,

“It is important to plot Mr. Edwards’ possession of a firearm on the spectrum described by Justice Doherty in R. v. Nur, 2013 ONCA 677 at para 51 (aff’d 2015 SCC 15 at para 82). At one end stands the outlaw who possesses a firearm as a tool of his or her criminal trade; at the other, a person who commits what is essentially a regulatory offence. Mr. Edward’ conduct is serious, and lies between the two extremes. However, Mr. Edwards is not the ‘outlaw’ that Justice Doherty described. There is no evidence that he was engaged in any other criminality or that he carried the firearm as a “tool of the trade”. As a result, I find that the three-to-five-year range that is often cited as appropriate for section 95 offences does not apply: see Stewart at para 74 and Beharry at paras 30-31, and the cases they cite. Cases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or low penitentiary range (Ibid; see also Smickle and Morris at paras 125 and 131).”

39The facts in this case are not as clear cut as those in Edwards since Mr. Barrett did in fact have both cocaine and fentanyl in his possession as well as the firearm. However, since I cannot find that he was in fact engaged in trafficking narcotics or that he intended to traffic, in my view this case still falls in the middle range where the possession was not for the purpose of committing other criminal offences nor was it close to a regulatory offence. Having said that, given the aggravating factors noted above, it falls at the higher end of this range.

40With this in mind, it is helpful to review some other cases where the offender fell into this middle range. In R. v. Marfo, 2020 ONSC 5663, the offender was found guilty of possessing a loaded firearm, possession of an over capacity magazine and possession of crack cocaine. All three items were located in his residence. In that case, a sentence of 24 months less deductions for pre-sentence custody and Downs credit was imposed. A conditional sentence was deemed to not be an appropriate sentence.

41In R. v. Beharry 2022 ONSC 4370 a conditional sentence of two years less one day was imposed for possession of a firearm in a vehicle. This is similar to the sentence imposed in Edwards. The case at bar differs dramatically from these two cases in that Mr. Barrett also was in possession of two different kinds of illegal narcotics.

42In R. v. Marier 2023 ONSC 5194 a conditional sentence of 2 years less 46 days was imposed for a loaded firearm in a bag that Mr. Marier threw while fleeing from the police. Like Edwards and Beharry¸ Mr. Marier was not in possession of any narcotics nor had his firearm been modified to be more lethal.

Appropriate Sentence

43In the case at bar, Crown counsel argued that in the ordinary course a three-year sentence should be imposed for Mr. Barrett. In light of the information learned about Mr. Barrett and the incredible strides he has made over the past year, Crown counsel took the position that removing Mr. Barrett from the community at this stage would not be appropriate. The Crown in this case took a very compassionate and reasoned approach that considered both Mr. Barrett’s reduced moral culpability and his positive prospects for rehabilitation while also focusing on the seriousness of the offences. In submitting that a conditional sentence ought to be imposed in this case, the Crown properly pointed out the obstacles in doing so. First of all, it is his position that even with all the mitigating factors noted above a three-year sentence is the appropriate sentence. Conditional sentences are not available for sentences over two years less one day. Secondly, I could arrive at a sentence of two years less one day if I deducted Mr. Barrett’s pre-sentence custody from the three year sentence, this kind of reasoning, however, is not permitted (R. v. Fice, 2005 SCC 32).

44Crown counsel argued that I could impose a two year less one day conditional sentence in the case at bar and avoid the dilemma posed by Fice, if instead of reducing Mr. Barrett’s sentence to account for the pre-sentence custody, I merely identify the pre-sentence custody as a mitigating factor. This would permit me to reduce the sentence to a range where a conditional sentence could be imposed.

45I applaud the Crown’s out of the box thinking and his true commitment to explore creative ways to impose sentences that are just and consistent with the present state of the law. I am not confident, however, that I am permitted to do as he asks. It seems like an end run around the law.

46Counsel for Mr. Barrett also argued for a conditional sentence, but did so employing different legal means. Counsel for Mr. Barrett argued that in light of the social context evidence and the amazing strides Mr. Barrett has made since his release from custody, a sentence of two years less a day would be appropriate. He further argued that this sentence should be further reduced to take into account his pre-sentence custody. Counsel for Mr. Barrett argued that given the range set out above, a sentence of two years less a day falls within the range. He further argued that a conditional sentence would not be contrary to the public interest.

47In my view, a sentence of two- years less one day is appropriate in this case. I am mindful that this is significantly lower than the range identified in Nur, but as I noted above, this is not a case where Mr. Barrett possessed the gun to assist him with engaging in other illegal activities. Mr. Barrett indicated that he had the gun for protection. This is consistent with the information I received about his neighbourhood, community and the loss of his father figure to murder. Moreover, the possession of the narcotics must be viewed in the context of him growing up with a mother who had abused drugs when he was younger. Mr. Barrett’s exposure to addiction, sexual and physical violence at a young age, his lack of stability and the absence of appropriate supports in the school all shaped Mr. Barrett’s state of mind and guided his choices. Now, exposed to positive influences and meaningful intervention, Mr. Barret has actively chosen to take a different path, one that is pro-social.

48In the vast majority of cases, where one possesses a loaded firearm that has been modified like in the case at bar, while also on a release and in possession of drugs – the three-year mark is more appropriate. In my view, a sentence less than three years in appropriate in this case because of the host of mitigating factors outlined above including the fact that I have found Mr. Barrett’s moral blameworthiness to be significantly reduced because of the social context evidence, the injury he suffered while in pre-sentence custody, and the positive strides he has made since his release from custody. In my view, a sentence of two years less one day still addresses the objectives of deterrence and denunciation while also ensuring that the sentence is proportionate to the seriousness of the offence and the moral blameworthiness of Mr. Barrett. When the pre-sentence custody of 230 days is considered at a rate of 1.5 to 1 for a total of 345 days, the remaining sentence is thirteen months.

Appropriateness of a Conditional Sentence

49Section 742.1 (a) of the Criminal Code identifies two additional pre-requisites for a conditional sentence. First that the sentence must not endanger the safety of the community. I am satisfied that it will not. Mr. Barrett has clearly made a change and decided to alter his path and is making best efforts to be pro-social and to be a productive law-abiding member of our society. He has been on release for a long time now and is doing well. Given his success while on release, I am confident that he wants to be law abiding and that he is able to comply with the law.

50The second pre-requisite is that the imposition of a conditional sentence be consistent with the fundamental purposes and principles of sentencing. In the case at bar, Mr. Barrett was in possession of a loaded firearm, with an extended magazine that had been altered to be fully automatic. He also had drugs in his possession and was on a release pending trial. The objectives of deterrence and denunciation are clearly paramount. They are not, however, exclusive. It is well accepted that a conditional sentence can still act as a deterrent and can still be denunciatory. The mere fact that deterrence and denunciation are paramount considerations does not by itself, create a bar to imposing a conditional sentence order.

51As I noted earlier in this judgment, I am mindful that in the firearm cases where conditional sentences have been imposed, the facts of the offence were less aggravating. In the case at bar, however, the circumstances of the offender are particularly mitigating. In light of this, I am satisfied that a conditional sentence order would not be inconsistent with the fundamental purposes and principles of sentencing. A lengthy conditional sentence, in my view, satisfies the objectives of deterrence and denunciation while also appropriately taking into account the social context evidence that in my view serves to reduce Mr. Barrett’s moral blameworthiness and make a conditional sentence appropriate.

52Normally, where an offender has been on a restrictive release for a long period of time the overall jail sentence is reduced to reflect this. I am not going to do so in this case. This is because I already considered this fact when I considered the relevant mitigating factors. Moreover, this strict release allowed Mr. Barrett to attend programing that was helpful to him.

53Counsel has asked me to reduce Mr. Barret’s sentence to take into account the pre-sentence custody. As noted above, this would result in a sentence of almost 13 months if I was sentencing Mr. Barrett to real jail. Had I concluded that a conditional sentence was not appropriate, I would have sentenced Mr. Barrett to two years less one day less the pre-sentence custody, leaving Mr. Barrett with a sentence of thirteen months incarceration.

54The conditional sentence case law, however, allows for a judge to impose a longer conditional sentence than what would have been imposed had real jail been imposed. This is permitted in order to ensure that the sentence meets the objectives of deterrence and denunciation. In my view, a thirteen-month conditional sentence order would not speak to the gravity of this offence nor would it properly address the objectives of deterrence and denunciation. to deter and denunciation. In my view a conditional sentence of 2 years less one day will do this. I therefore impose a conditional sentence order of two years less one day for the two firearms charges to be served concurrently and a concurrent sixty day conditional sentence for the other offences all of which are to be followed by one year of probation.

55Both counsel asked me to impose a de-escalating conditional sentence order with eight months under house arrest, eight months under curfew and the last eight months with no liberty restrictions. While I struggled with the appropriateness of this, since a conditional sentence should feel like jail in the community, I have ultimately decided that a de-escalating order is appropriate in this case, but not at the rate suggested by counsel. Since I have increased the sentence beyond what I would have given had I sentenced to real jail I am satisfied that the de-escalation approach is the right approach for this case

56The order will be as follows:

• For the first twelve months Mr. Barrett will be under a house arrest condition with exceptions to leave the house for employment, training, education, counselling and to see his conditional sentence supervisor. He is also permitted out every Saturday for four hours to attend to necessities.
• For the next six months Mr. Barrett will have a curfew from 10pm until 6am with the same exceptions as above
• For the last six months there will be no liberty restrictions
• Mr. Barrett is to attend counselling as directed by his supervisor and sign forms to confirm compliance with this term
• Mr. Barrett is not to possess any weapons.

57Crown counsel also asked for an order that Mr. Barrett not attend any bar or establishment that only serves alcohol in order to ensure that the conditional sentence resembles a jail sentence. Given the extended liberty restrictions I imposed, I do not think this additional term is necessary.

58The conditional sentence order will be followed by one year of probation which will include a counselling term and a no weapons clause. I will also impose a DNA order and weapons prohibition pursuant to section 109 of the Criminal Code for ten years.