DATE: 2024-08-14 Toronto
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEVONN SMITH
Before Justice Mara Greene
Reasons for Judgment released August 14, 2024
Counsel: C. Sabian…………………………………………………………………… for the Crown V. Ruscitto…...…………………………………………….…………....for Jevonn Smith
1On July 17, 2023, Jevon Smith entered a plea of guilty to three offences all arising from the same event. The charges were as follows:
a) possessing a loaded firearm b) possessing a prohibited firearm without a license and c) occupying a motor vehicle while possessing a firearm.
2Mr. Smith’s sentencing was adjourned so that a PSR and a Morris report could be prepared. Unfortunately, the production of the report took so long that Mr. Smith decided to proceed without the benefit of a Morris report. Instead, he relied on the standard PSR. As a result of the ongoing delays in the case, Mr. Smith’s sentencing took place almost a year after he entered his pleas of guilty.
Circumstances of the offence
3Mr. Smith was at a gas bar when he was arrested by police. Police located a loaded black glock handgun on the passenger seat of his vehicle. The handgun, a prohibited weapon, was equipped with an oversized magazine. It was loaded with 16 rounds of ammunition. A bullet proof vest was found in the trunk of the vehicle. The police searched Mr. Smith’s residence and located 32 rounds of ammunition which were the same make as the rounds found in loaded glock. The ammunition was found in an unlocked dresser in an unlocked bedroom in a house where children lived. A holster for the firearm was also located.
4Mr. Smith admitted to the author of the PSR that he obtained the firearm a year earlier. He kept the firearm for protection as he was shot at in 2020 and has friends who have been killed.
Information about Mr. Smith
5Mr. Smith is a 28-year-old first offender with strong connections to his family and great prospects for rehabilitation.
6Mr. Smith was born in Toronto. His father was deported to Jamaica when Mr. Smith was ten years old. He has not had contact with his father since 2016. Prior to being deported, Mr. Smith’s father spent a significant period of time in custody. Mr. Smith expressed that he is close with the rest of his family, including extended family that live in the United States.
7While all members of Mr. Smith’s family spoke of Mr. Smith’s childhood as a positive one, they also all noted that their neighbourhood was riddled with violence and a number of Mr. Smith’s friends passed away from gun violence.
8Although it took eight years and three different high schools, Mr. Smith completed high school. Mr. Smith was expelled from one school in grade 9 for an incident involving a stolen cell phone. He changed schools in grade 10 because he did not like the new school. According to Mr. Smith, it was not until he was older that he started to take school seriously.
9Mr. Smith presently lives in Brampton with his family. He has a long-term girlfriend who lives in Orangeville. They have no children in common, but she has a seven-year-old from a prior relationship.
10Mr. Smith is a rapper. He has obtained significant success in this field and supports himself through his music and related activities. Mr. Smith writes, performs and records music. Mr. Smith has been offered “brand ambassador” positions for multiple different companies. He is currently working with and promoting two companies. Both companies wrote letters in support of Mr. Smith.
11Mr. Smith has published 52 songs and the author of the PSR verified that he has approximately 18,000 monthly listeners. According to one of his employers, Mr. Smith’s YouTube videos have garnered millions of views. This employer described Mr. Smith as dedicated to his craft, a hard worker despite facing adversity, a good person with tremendous talent and capabilities. This employer wrote that he is aware of Mr. Smith’s legal situation and intends to continue working with Mr. Smith. Another employer wrote that Mr. Smith has “demonstrated exceptional creativity and strategic acumen in digital marketing, significantly contributing to the growth and visibility” of the company. Mr. Smith has been a “dedicated and reliable employee, known for his good character and professionalism. His dedication and professional expertise have been invaluable to our organization”. This company also wrote of their knowledge of Mr. Smith’s legal predicament and their willingness to continue retaining him if Mr. Smith is given an opportunity to serve his sentence in the community.
12Mr. Smith told the author of the PSR that he had the firearm in his possession for approximately one year and that he had it for “protection”. In 2020 Mr. Smith was a victim of a shooting. He was shot at while operating a motor vehicle. Mr. Smith did not disclose any further information about the shooting. According to a portion of the ITO created as part of the investigation into Mr. Smith, the shooter has not been identified or arrested. Mr. Smith further disclosed that due to his success in the music business he is well known in his community. His success has led to jealousy in the community which has raised additional safety concerns. Mr. Shabib, one of Mr. Smith’s friends, advised that Mr. Smith has reason to be fearful. This is linked to Mr. Smith watching his friends be murdered, the nature of community in Rexdale and state of the music industry in Toronto.
Position of the Parties
13Crown counsel seeks a sentence of four years in jail given the gravity of the offence. This involved a loaded firearm in a vehicle, an extended magazine that was also loaded and a host of additional ammunition stored in Mr. Smith’s residence. Moreover, Mr. Smith admitted during the sentencing process that he possessed the firearm for one year.
14Defence counsel argued that a reformatory sentence to be served in the community would have been an appropriate sentence, but given the time spent on a very strict bail, Mr. Smith has already served that time and should be granted a suspended sentence.
General Principles of Sentencing
15In determining an appropriate sentence for Mr. Smith, I am required to consider the purposes and principles of sentencing set out in s. 718 of the Criminal Code.
16The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) to deter the offender and other persons from committing offences; c) to separate offenders from society, where necessary; d) to assist in rehabilitating offenders; e) to provide reparations for harm done to victims or to the community; and f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
17While 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 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.” Having said that, the jurisprudence is clear, when sentencing firearm related offences, the objectives of deterrence and denunciation are paramount.
18The sentence I impose must also be proportionate to the gravity of the offence and the degree of responsibility of the offender taking into account all the aggravating and mitigating factors. I must also take into account the principle of restraint when imposing a period of incarceration.
19To that end, it is necessary to consider all the aggravating and mitigating factors in this case.
20There are a number of aggravating factors in this case all of which relate to the circumstances of the offence. They are as follows:
a) The firearm was loaded with a bullet in the chamber. b) The firearm had an extended magazine that was also loaded. c) The firearm was in a motor vehicle and readily accessible to Mr. Smith – suggesting that he was prepared to use it. d) There was a bullet proof vest in the vehicle. e) 32 additional rounds of ammunition were found at Mr. Smith’s residence. f) Five children lived in the residence where the ammunition was found, the ammunition was in an unlocked dresser in an unlocked bedroom. g) The prevalence of gun violence in Canada and specifically Toronto.
21There are also a host of mitigating factors. All of which relate directly to Mr. Smith’s personal circumstances.
a) Mr. Smith entered a plea of guilty. b) Mr. Smith is remorseful for his conduct and has insight into his actions. c) Mr. Smith is a first offender. d) Mr. Smith is relatively young and has amazing prospects for rehabilitation. e) Mr. Smith has significant community support ranging from family to work associates. f) Mr. Smith has a tremendous work ethic and is a respected employee/colleague. g) Mr. Smith is gainfully employed – and in fact has three jobs. h) Mr. Smith grew up in a community filled with gun violence. i) Mr. Smith has legitimate safety concerns. He was a victim of a shooting in 2020. The perpetrator has not yet been arrested. j) The author of the PSR noted that Mr. Smith is a good candidate for community supervision. The PSR was very positive. k) Mr. Smith was on strict house arrest bail including electronic monitoring for almost 1 year following his arrest. Mr. Smith’s bail was varied on September 8, 2022 to allow him to work. The electronic monitoring condition was removed. While his bail was loosened, Mr. Smith remains under a very strict bail with meaningful liberty restrictions.
22When I consider all the facts in this case, it is my view that Mr. Smith committed a very serious offence that put the public at risk. The only inference to draw from all the evidence is that Mr. Smith possessed a lethal weapon and was prepared to use it. Mr. Smith advised that he possessed this firearm for protection. I appreciate his concern for his safety. He was shot at and a number of his friends have been killed through gun violence. He lives in a community where gun violence is common and his fears for his own safety appear to be completely legitimate. This context is important. The concern for one’s safety does not, however, justify possessing a gun. As was stated by Goldstein J. in R. v. Johnson, 2022 ONSC 2688 at para 41,
Possession of an illegal handgun – even for “personal protection” as Mr. Johnson claimed – although now recognizes as wrong-headed – still constitutes a danger to public safety. In our society nobody-and I mean absolutely nobody – requires an illegal firearm for personal protection. If you carry an illegal handgun, even for perceived defensive reasons, you are part of the problem, not part of the solution. There is no evidence that Mr. Johnson has ever received even a moment of firearms safety training. He probably has no idea how to properly clean and strip a firearm and make it safe. Under those circumstances it is as much a danger to himself as it is to others. Furthermore, if he were ever in an actual gunfight it is probably more likely that he would shoot a bystander rather than the person he was aiming at. Tragically, this city has experienced many real-world examples where exactly that has happened. The notion, often advanced in these courts, that a person needs an illegal handgun for protection is, quite simply, utter nonsense. It ought never to be given serious consideration. I give it no consideration whatsoever now, and it is to Mr. Johnson’s credit that he now recognizes this.
Range of Sentence Normally Imposed
23In R v. King-Joseph, 2024 ONCJ 280, I reviewed in detail the range of sentence for s. 95 offences. As I stated in King-Joseph,
While a review of the case law on section 95 offences establishes that in the vast majority of cases three years or more is imposed, there is now a growing body of cases where conditional sentences have been imposed for youthful first offenders with good prospects for rehabilitation and the presence of some social context evidence, especially where the offender is not in possession of drugs along with the firearm. Sentences for possession of firearms where drug trafficking/possession is not included are often lower than the three-to-five-year range.
24Both counsel provided me with additional cases outlining the range for sentence for similar offences. All of the Crown’s cases led to the imposition of a penitentiary sentence while all the defence cases resulted in conditional sentences. The cases provided by counsel are consistent with the range highlighted above. Sentences for possessing loaded firearms can range to as low as conditional sentence orders to as high as five years in the penitentiary. While penitentiary sentences are the norm, there are cases where the circumstances can support the imposition of a conditional sentence.
The Appropriate Sentence in the Case at Bar
25I have already highlighted the aggravating and mitigating factors in this case. The presence of the oversized magazine, the additional ammunition in a house where children live, the bullet proof vest and the fact that the gun was in a vehicle all support a finding that this offence does not fall at the lowest end of the spectrum for gun offences. These aggravating factors call for a significant sentence that is both a deterrent to others and denounces the behaviour.
26The mitigating factors in this case are equally compelling and allow me to conclude that Mr. Smith’s moral culpability is reduced, that he has learned from his offence and that he is a low risk to re-offend. In the case at bar, I did not have the benefit of a Morris report. This is due to no fault of Mr. Smith. A Morris report was ordered, but the delay in preparing the report was so long Mr. Smith decided to forgo the benefit of this report so that his matter could be completed. At the time of the sentencing hearing, Mr. Smith had been on a strict release for over 900 days. One year of that time was spent waiting for a Morris report. The difficulty that arises from not having a Morris report is that that I risk losing valuable information about the connection between Mr. Smith’s experience as a black male in Canada and the impact of systemic discrimination on his criminal conduct.
27Crown counsel argued that I have the benefit of the PSR and defence counsel’s very able submissions to assist me with this issue and as such no harm has come from not obtaining a Morris report. While I agree the PSR is well prepared and counsel for Mr. Smith did an excellent job highlighting the Morris factors, it is my view that this is not an adequate substitute for a Morris Report. Having had the benefit of these reports in other cases, I am well aware of how the author connects factual events with behavioural outcomes. For example, in the case at bar, Mr. Smith struggled in school for a number of years. While he ultimately graduated, it took him eight years to complete high school. One explanation for this is that he did not care about school. Another explanation, one I have read in other Morris reports, is that systemic discrimination occurs in high schools that creates barriers for black men to engage meaningfully with the school. I highlight this only as an example of the kinds of information that may be missing from the record due to the absence of a Morris report.
28In my view it can be difficult to fully understand the causal connection between the offender’s background and his criminality without a Morris report. These reports help judges understand the full impact of past discrimination and marginalization on the offender’s action. To that end, as I stated in R. v. King-Joseph, “failure to fund this kind of report writing adequately is a systemic failure”.
29Crown counsel argued that there are not significant Morris factors in this case because Mr. Smith was raised by a supportive parent. I disagree. Yes, Mr. Smith had the benefit of strong supportive mother. He did not, however, have an involved father as he had been deported due to his criminality when Mr. Smith was young.
30Mr. Smith and his four siblings were raised by single mother with very little additional family support. By the age of 14, Mr. Smith had to work to help support his family. Mr. Smith, while not a gang member himself, grew up in a community where gang activity was common. He grew up near people who have been killed or have become gang members themselves. He has been surrounded by violence and in fact was a victim of a shooting in 2020. Despite the presence of gang violence around him, Mr. Smith has managed to overcome adversity and now has a successful music career.
31I further note that in relation to the 2020 shooting, Mr. Smith’s counsel advised that Mr. Smith felt that the police did not take his case seriously. He felt that the police saw him as a thug and a gang member and treated him accordingly. While this does not justify Mr. Smith deciding to arm himself, it provides me a context to understand Mr. Smith’s moral culpability and how his actions were framed by his exposure to discrimination in the justice system. I can take judicial notice of the fact that Black Canadians have experienced and continue to experience discrimination across a broad range of social institutions including the criminal justice system. This is consistent with Mr. Smith’s self report to his lawyer about his feeling of being treated like a thug and gang member when reporting his own victimization to police.
32In 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 the leading case of R. v. Nur, 2015 SCC 15, but this is not a case where Mr. Smith possessed a firearm to assist him with engaging in other illegal activities. While there are significant aggravating factors, which I have already highlighted, Mr. Smith’s background, exposure to gun violence in his community and prior involvement with the police shaped his state of mind and guided his choices. Mr. Smith is taking responsibility for his actions, is a productive member of society and is working hard to follow a pro-social path.
Appropriateness of a Conditional Sentence
33Section 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. Smith is clearly committed to engaging in a prosocial life. He has been on release for over 900 days. He has not breached any term of his release. When permitted he has worked and is described as an excellent employee. Mr. Smith has a great talent and is a hard worker. 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. I am confident he will follow all conditions of the CSO and not commit other offences.
34The 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. Smith was in possession of a loaded firearm, with an extended magazine, additional ammunition and a bullet proof vest. As noted above, 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.
35Moreover, conditional sentences, where appropriate can have the additional benefit of addressing ongoing systemic issues in the justice system. As was noted in R. v. Morris, 2021 ONCA 680, “The use of a conditional sentence when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders”.
36In the case at bar, 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 of two years less one day, in my view, satisfies the objectives of deterrence and denunciation while also appropriately taking into account Mr. Smith’s history and moral blameworthiness.
37Counsel for Mr. Smith argued that in light of all the time Mr. Smith spent in the community on a release pending the completion of this matter, a suspended sentence should be imposed. I appreciate the sentiments expressed by counsel. Mr. Smith has spent well over 900 days waiting for the completion of this matter. The first 343 days were spent under a complete house arrest with electronic monitoring, paid for by Mr. Smith. Mr. Smith entered a plea of guilty to these charges 13 months ago. But for waiting for the Morris report that never materialized, Mr. Smith’s sentencing would have been completed within ten weeks of his plea as this is the usual time to obtain a PSR. While Mr. Smith’s release conditions were relaxed over time, he as still under a strict curfew with significant limitations on his freedom. Pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.), I am permitted to reduce Mr. Smith’s sentence to take into account strict conditions of release.
38I agree that Mr. Smith’s sentence should be reduced to take into account the time spent on a strict house arrest and the months and months Mr. Smith waited for a Morris report. In my view, Mr. Smith’s sentence should be reduced by ten months. This leaves fourteen months remaining on his sentence. In my view, the ten month deduction, while on the higher end, is appropriate in this case given the causes for the delay, in particular the underfunding for social history reports, and the very strict terms of his release. I am also going to impose a period of community service. This will help make reparation to his community and instill responsibility for this offence on Mr. Smith. Mr. Smith has a lot to offer and his community could benefit from this.
39I therefore sentence Mr. Smith to a fourteen-month sentence, concurrent on each count, to be served in the community followed by one year of probation. The terms of the conditional sentence order are:
a) Report as directed. b) For the first nine months remain in your residence at all times except for medical emergencies for you and your family, employment, religious observances, community service, and once a week to obtain necessities. c) For the next three months abide by a curfew of 10pm to 6am except for medical emergencies, religious observances and employment. d) Complete 40 hours of community service and provide proof to your conditional sentence supervisor that you have completed the community service. e) Do not possess any weapons.
40The probation terms will include a reporting condition and a condition to not possess any weapons.
41There will also be a DNA order and a 109 order for ten years.
Released August 14, 2024
Justice Mara Greene
