DATE: June 25, 2024 Information No. 2311-998-23-28106-00
ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
LEWIS MOYE
P R O C E E D I N G S A T R E A S O N S F O R
J U D G M E N T A N D S E N T E N C E
BEFORE THE HONOURABLE JUSTICE P.C. WEST
on June 25, 2024, in OSHAWA, Ontario
APPEARANCES: K. Alderton Counsel for the Crown T. Boodoosingh Counsel for the Crown K. Quinlan Counsel for Lewis Moye
...all recorded, but not required
Lewis Moye pleaded guilty to a charge of possession of a loaded firearm on January 30th, 2024, a pre-sentence report was ordered and I heard submissions from counsel as to the appropriate sentence on April 23rd, 2024.
In the early morning of August 19th, 2023, an employee of the Brewhouse Bar, located at 2710 Simcoe Street North, Oshawa, located two people inside the bathroom. It appeared one was selling drugs to the other, and both were asked to leave. A short time later, outside the bar, a verbal argument ensued between the employee, Marjan Siddiquey and one of the persons asked to leave, Lewis Moye. Police were called and Mr. Moye was located outside the bar and was arrested without incident. Upon search of the suspect, a loaded handgun was located inside the satchel, worn by Mr. Moye. Furthermore, 40 rounds of spare ammunition were also located. The pistol was a semi-automatic, 22 calibre, 1911 style, and nine rounds were located inside the loaded magazine. Mr. Moye is not licenced to have possession of a firearm.
Position of the Parties
The position of the Crown in this matter is that a three-year penitentiary jail sentence is the appropriate disposition. The Crown argues that given the facts in this matter, denunciation and deterrence ought to be the primary sentencing principles to be emphasized by the court.
The defence does not attempt to diminish in any way the seriousness of the offence committed by Mr. Moye. It is the defence position however, that in addition to denunciation and deterrence, I must consider other factors which must be balanced in arriving at a proportionate sentence. Mitigating factors such as Mr. Moye’s lack of a prior record, his guilty plea, which demonstrates his remorse and acceptance of responsibility, the counselling he has already completed since his arrest, militate against a sentence that simply emphasizes punishment and retribution. It is the defence position that a proportionate sentence having regard to all of the circumstances is a conditional sentence of two years less a day. A conditional sentence, with appropriate restrictions, can properly reflect the principles of denunciation and deterrence.
Several cases were provided by the Crown and defence to support their respective positions.
The Crown provided two decisions, R. v. Mansour, 2023 ONSC 2065 (Goldstein, J.) and R. v. Riedl, 2023 ONSC 2017 (Boswell, J.)
In Mansour the accused was on a house arrest and was at his girlfriend’s residence, which was breaching his house arrest as she was not his surety. He and his girlfriend had an argument, during which she observed he had a firearm and she found a round that fell onto the floor and rolled under her bed. She called the police after they had an argument and when police arrived they found Mr. Mansour in possession of a loaded prohibited firearm and $4,102.50 in currency. The accused was 22 years of age and was on bail for drug trafficking charges, which were still outstanding at the time of his sentencing. He had not completed high school and was not working. The Crown submitted a 39 month sentence, 36 months for possession of the gun and three months consecutive for the breach of his release order. The defence sought a sentence of 18 to 24 months and with credit for harsh conditions of pre-sentence custody factored sought a time served sentence. Justice Goldstein found the accused had carried the handgun with him in public, which was an extremely aggravating circumstances, as well as the discovery of a loose round on the floor of his girlfriend’s bedroom, which demonstrated a degree of carelessness in the handling of the firearm. He also found it was an aggravating circumstance that the girlfriend observed the handgun during a domestic dispute. Justice Goldstein imposed a global three-year sentence or 36 months, with credit for 32 months (pre-sentence custody of 26.5 months and a further reduction for harsh conditions of 5.5 months). The sentence for the possession of a prohibited firearm was 34 months with credit of 32 months, leaving two months and then a two-month consecutive sentence for the breach of recognizance for a total of four months followed by three years of probation with conditions.
In Riedl the accused was charged with possession of cocaine for the purpose of trafficking, possession of a restricted firearm without having a valid licence and unauthorized possession of a loaded restricted handgun and he was self-represented. At his trial readiness court date, he expressed his desire to plead guilty to the drug offence and possession of the loaded prohibited handgun. The accused on his arrest was found in possession of 29.1 grams of crack cocaine and 53.5 grams of powdered cocaine. When his rental vehicle was searched the satchel on the front passenger seat was found to contain a .22 calibre Sig Sauer semi-automatic pistol with five rounds of ammunition in the magazine and one in the chamber. Mr. Riedl was 25 years of age at the time of the offence. Justice Boswell found the loaded handgun was possessed for a “true crime” purpose because the possession for the purpose of trafficking illicit Schedule 1 substances, citing an Ontario Court of Appeal judgment in R. v. Omaoragbon, 2020 ONCA 336, at paras. 22-23. He imposed a three-year sentence for the firearm offence and a consecutive one-year sentence for the drug offence, for a global sentence of four years. Justice Boswell referred to a number of aggravating factors: driving with the firearm, a bullet in the chamber and five in the clip; out in the community with the firearm, the serial number was tampered with, the possession was directly related to Mr. Riedl’s drug business and a higher sentence would have been warranted but for mitigating circumstances of youthful first offender, his guilty plea and the fact he was on house arrest for two and a half years, which resulted in a three month reduction so the total global sentence was 45 months.
Mr. Quinlan for the defence provided a digest of authorities, which included R. v. Morris, 2021 ONCA 680, addressing how anti-Black racism can be connected to, or play a role in, the individual’s fear for their personal safety, which may offer a mitigating explanation for the individual’s possession of a loaded, concealed handgun. However, this is only a limited mitigating factor. In Morris the court held that anti-Black racism does not diminish the seriousness of the offence or the court’s obligation to denounce serious criminal conduct.
Mr. Quinlan provided the decision of Justice Woollcombe in the Superior Court in R. v. Kelly, [2022] O.J. No. 4326 (SCJ), where she imposed a conditional sentence, for attempting to import a kilogram of cocaine, of two years less a day and a concurrent conditional sentence of 18 months for attempting to possess for the purpose of trafficking cocaine, followed by three years’ probation. Justice Woollcombe followed the Morris decision and had the benefit of an Enhanced Pre-Sentence Report.
Mr. Quinlan also provided a number of sentencing decisions involving conditional sentences for firearm offences. In R. v. Desmond-Robinson, [2022] O.J. No. 2123 (C.A.), the accused had a sawed-off shotgun in his closet and ammunition in the pocket of a jacket hanging in the same closet. The trial judge found he knew these items were in his closet and found him guilty after a trial and sentenced him to an 18-month conditional sentence. On appeal the court held that the trial judges’ assertion that a conditional sentence was outside the range of sentence affirmed by the Court of Appeal on s. 95 offence was incorrect, as in Morris, at paras. 124-28, 180-81, the court had in fact recognized that “conditional sentences may well be appropriate in cases like this one”, referring to the facts in Desmond-Robinson. The Court of Appeal held, “The firearms offence was serious, however, there was much to be said in mitigation of the appellant’s personal blameworthiness and in favour of his rehabilitative potential.” The Court of Appeal imposed a conditional sentence of two years less a day with conditions based on the considerable potential of the accused. The court held circumstances beyond the accused’s control, some of which no doubt had reflected systemic racism, diminished the accused’s moral culpability. The court found on the record before the trial judge, he was a candidate for a conditional sentence and the fresh evidence filed made this an even stronger on. (See paras. 16-17.)
In R. v. Edwards, [2023] O.J. no. 458 (OCJ, Band), the accused was urinating by a loading dock of a residential building when police officers came upon him. They asked him to speak to them and as he approached the officers they observed a gun barrel poking out of a hole in his pants. He was arrested without incident and the officers found a loaded .45 caliber, semi-automatic pistol with eight rounds in the magazine and one in the chamber, which he said he had for his protection. There was no evidence he had ever used the firearm or fired it or that he was involved in any other criminal behaviour. He was sentenced to two years less a day conditional sentence followed by 24 months of probation.
In R. v. McLarty-Mathieu, 2022 ONCJ 498 (B. Green) the accused pleaded guilty. The Crown sought a three-year penitentiary sentence and the defence sought a conditional sentence of two years less a day. He was a youthful first offender. Considering the circumstances and background of the offender Justice Green imposed a conditional sentence of 20 months followed by 16 months of probation. In R. v. Stewart, 2022 ONSC 6997, [2022] O.J. No. 5646 (SCJ, Copeland, as she then was, she is now in the Ontario Court of Appeal) the police were investigating a shooting and made observations of Mr. Stewart and another man, which led them to believe the men were armed. The police identified themselves and the two men ran in opposite directions. Mr. Stewart ran down a street, jumped a fence into a field connected to a schoolyard and at some point he discarded a firearm by throwing it. He was arrested a short time later. The police searched for a firearm but did not locate one. As it was raining the search was resumed the next morning when janitorial staff discovered on the east side of the school the firearm, which was disassembled, with the magazine and spring some distance from the firearm and the ammunition spread on the ground, consistent with the firearm being thrown and landing with some force. An EPSR was obtained, Mr. Stewart was a youthful first offender, his possession was not connected to any other criminal activity and in considering all of the circumstances, including her finding that Mr. Stewart had potential for rehabilitation, she imposed a two year less a day conditional sentence followed by a two-year term of probation.
Mr. Quinlan also provided two additional similar cases, which I will not summarize: R. v. Stewart, [2024] O.J. No. 186 (SCJ, Nakatsuru) and R. v. Hill, [2023] O.J. No. 3590 (OCJ, Burstein).
Background of the Offender
Lewis Moye was 26 years old on the day of this offence and he turned 27 just a week later. He does not have a criminal record and first came to Canada as a refugee on June 19th, 2000. He was born in Khartoum, Sudan. His grandfather practiced polygamy and had six wives and 30 children. He lived a village lifestyle and as a family of nomads, who were shepherds and farmers who moved from place to place with their flocks. The concept of “abuse” did not exist, women were not allowed to speak, and children were not allowed to speak unless spoken to. His family travelled through the desert, and in June 2000, his family fled Sudan in the midst of the second Sudanese War, first to South Africa as refugees and then just a few weeks later to Canada as refugees. When they arrived in Canada they were put on a bus to Scarborough, Ontario. They ultimately lived in Danzig for nine years. They were a family of three and lived in one-bedroom homes and only moved to a bigger space once his sister was born. His early life in Canada was filled with uncertainty as his family faced deportation on three separate occasions due to denials of their refugee claims.
Most of the neighbourhoods where his family lived in Scarborough faced poverty and violence, and currently are referred to as Neighbourhood Improvement Areas. He grew up with others who were involved in the drug and gang lifestyle, which was a “normal way of life” in those communities. He advised the probation officer who prepared the PSR that he worked hard not to become involved in any criminal activity, as he knew the potential consequence for him was to be deported back to Sudan because of his immigration status. He advised of his efforts to avoid engaging in pro-criminal activities; however, this did not prevent him from experiencing negative police interactions within his community. His first interaction was walking home from school at age 14, when “carding” was still permitted, and he was “boxed in” by four police cruisers looking for a specific individual they described as being male, “tall and black”. He was required to produce his student identification, which confirmed he was not who they were looking for, but he was still detained for 20 minutes. This interaction shaped his perception of police going forward. He described how he had numerous interactions with police because of being in the “wrong place and the wrong time.” He described an instance when he was attending university in Ottawa and having forgotten his keys to the home he leased. He entered the residence through the back door, which resulted in a large police presence where he had to provide a letter addressed to him at the address to avoid being arrested.
His family moved from Scarborough to Pickering when he was 11 and then they moved to Ajax. He was surrounded by the same peers he had associated with in Scarborough, as everyone from his neighbourhood moved to Ajax. While he continued to be surrounded by criminal activity and violence with the communities he lived in as a child and teenager, he was more concerned about the violence occurring in his home. His father abused alcohol and became physically and verbally abusive towards him, his mother and his sister. The violence his father exhibited was severe, breaking dishes, kicking his mother down the stairs and beating up his sister. He and his father fought all the time, which could became excessive. On one occasion he lost a jacket, which angered his father who kicked him down a flight of stairs and kicked him in the ribs. When he ran away his father dragged him back into the house. His mother was afraid to call the police because of the uncertainly surrounding their immigration status. Children Services were involved on two occasions, as a result of his sister making statements at school, but nothing happened.
Mr. Moye described circumstances in Sudan where his father experienced violence where rebels gun butted him as soldiers unsuccessfully tried to rape his mother in front of his father. Mr. Moye believed his father suffered from Post Traumatic Stress Disorder. And further, when he was 18 years old, he and his family learned that his father had a “second family” with a woman who used to babysit he and his sister. This occurred when they had learned the family had just received their Permanent Residency Status in Canada. Mr. Moye was away in Ottawa going to university when this was discovered, and his mother and sister had to move into a friend’s basement. His father’s affair had a tremendous impact on Mr. Moye and as a result he began to look for male guidance elsewhere and this led to him engaging in problematic behaviours.
Since these revelations Mr. Moye’s involvement with his father has been minimal but he views his sister as his “best friend” and he and his mother “are the same person”. They are extremely close and are very supportive of him. This was confirmed by his sister and mother.
Mr. Moye did poorly in his first three years of high school, was always in detention and was suspended on at least three separate occasions. His poor showing during those years was due to a lack of effort. Before going to grade 12, he and his mother met with the guidance counsellor and as a result, he decided to apply himself and he became an Ontario Scholar. In grade 9 the Catholic High School he attended was locked down because a student had brought a handgun to school. Their school had a Police Liaison Officer present in the school as well as metal detectors due to the school’s “gun problem.” The first time he was approached about purchasing a firearm was at high school.
He attended university in Ottawa on a full scholarship, first in journalism and then a law program for a year before switching to the philosophy program. He lost his scholarship in second year due to poor grades, which to some degree was as a result of learning about his father’s affair four months into his first year. He attended university for five years and is six credits short of obtaining his degree. He also realized he was more of a hands-on learner and did not learn well in a classroom setting.
He described generally always being employed, with many part-time jobs during high school and university. His longest period of employment was for four years at a chain coffee house while at university. He had worked for fourth months as a forklift operator but lost his job just before the charges before the court. At the time of the PSR preparation he was participating in a skilled trades development employment program through Oak Revitalization Association. He completed a four-week mentorship component of this program and on May 10th, 2024 has now completed an eight-week hands-on training component where he chose to specialize in high rise forming. Mark Tenaglia, Executive Director of the ORA provided a letter, part of Exhibit 2 and spoke highly and positively about Mr. Moye to the PSR author. Mr. Moye is now a member of the LiUNA Local 183 union as a result of his completion of this program. Mr. Tenaglia noted that often the absence of positive male models is at the root of a participant’s challenges, and this was the reason for the mentorship program at the commencement of the program, dealing with topics of “de-escalation, self-regulation, financial literacy and evaluating past choices and how to make better decisions.” Mr. Tenaglia saw Mr. Moye as being “pleasant” and “smart” and someone who is a “natural leader”, who with more mentoring could be a leader and mentor himself to others.
Mr. Moye did not consume alcohol until he was 18 but by the time he was 19, he was “black-out drunk” every day. This lasted for a year, and he continued drinking daily after that but not to the point of blacking out. He advised he went from not using drugs to using just about anything. He used marijuana every day, and was using psychedelics, namely LSD, mushrooms and “molly”. This lasted for about the five years he was living in Ottawa, but he stopped when he returned home as it was difficult to use around his sister and mother. Currently, he still uses marijuana once a day but no longer drinks alcohol or uses any other drugs. He attended a rehabilitation program through an agency in Oshawa as a requirement of his release order and attended AA and NA sessions, church programs and spoke with a therapist but unfortunately this six-month program closed down after just one month.
He advised the PSR author that a “pro-criminal lifestyle” was “not a new world” to him given what he was exposed to in Scarborough and Ajax, but it was not a lifestyle he could embrace because of his immigration status and the significant consequences that would follow if he did. It was not until he was living in Ottawa that this began to change. In 2015, he stopped going to university and began selling marijuana. There was an altercation where a gun was pointed directly at him. In 2016, it was a “dark year” as he lost three friends to homicide. These losses led to feelings of guilt as he questioned why his life had been spared during the altercation he experienced the year before. His negative peers became his family as he continued to live away from his home. Ottawa was a “hub for guns and gangs” and there were a number of Toronto gangs being in Ottawa, he began getting “a crash course on the streets.” In 2020 his best female friend committed suicide and as a result he stopped caring. He felt when she died a piece of him died. He continued to associate with negative peers and became more entrenched in the drug and gang subculture.
Mr. Moye described that in 2022 he realized he had to change and tried to phase out of this lifestyle. He indicated the present offence was influenced by financial pressures as he owed money associated with his exit from that lifestyle and his mother was also hospitalized for kidney failure. He told the PSR author he was “happy” he got arrested as he was “too infatuated with the lifestyle” and it could have led him to significant personal consequences, such as death or his involvement in “something bigger”. He described one of the biggest lessons he learned was that “you become the company you keep” and he “takes full responsibility for what I’ve done.”
Both his sister and his mother have observed very significant changes in Mr. Moye and huge improvements in his character. They have found him to be less agitated, calmer and both see positive changes to his mental health from his being involved in the employment program. And further, a letter of support from a family friend since 2017, Judith Davis, a registered nurse in psychiatry, also part of Exhibit 2, speaks very highly of Lewis Moye’s character, describing him as an immensely respectful and caring person, who goes out of his way to help those around him and has an unparalleled capacity for empathy. She described a circumstance where he invited a homeless man to come and live in his home for a year with free room and board.
Considering all of the circumstances of Mr. Moye’s background it is clear he has faced many challenges growing up, which he has addressed and worked to overcome. I am satisfied he has a good potential for successful rehabilitation, which means rehabilitation and restraint are sentencing principles that must be considered and balanced with the principles of deterrence and denunciation.
Principles of Sentencing
In determining an appropriate sentence for Mr. Moye, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:
718 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 the need to:
a) Denounce the unlawful conduct;
b) Deter the offender, and others, from committing such an offence;
c) Separate the offender from society, where necessary;
d) Assist in the rehabilitation of the offender;
e) Provide reparation for harm done to “victims”, or the community; and
f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.
The “fundamental principle” of sentencing pursuant to s. 718.1 of the Code is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
42For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just desserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused…Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369 at para. 26:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
A sentencing judge must also have regard for s. 718.2 which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); the offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718.2(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(d)).
The gravity of the offence of possessing a loaded restricted firearm was concisely expressed by the court in Morris, at para. 68:
68 As described in Friesen, at paras. 75-76, the gravity of an offence takes into account the normative wrongfulness of the conduct and the harm posed or caused by the conduct. 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. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. 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 orderly society: see Nur (ONCA), at pars. 82, 206; R. v. Felawka, [1993] 4 S.C.R. 199, at pp. 214-15.
The more serious or grave an offence, the greater the need for denunciation and deterrence: Morris at paras. 67-72. In Morris the court held that systemic anti-Black racism and its impact on the particular offence does not mitigate or reduce the seriousness of an offence. However, the court in Morris held it may be relevant to the determination of a proportionate sentence in two ways. It may be mitigating in relation to assessing the offender’s degree of responsibility for the offence: Morris at paras. 75-81, 87-101, and it 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.
In Morris, the court specifically considered the imposition of a conditional sentence of imprisonment in the community as a sentencing option for young Black offenders convicted of handgun possession, at paras. 131 and 180:
131 As indicated in R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d) 351, sentences at or just below the two-year mark may be appropriate for some s. 95 offences. While the sentencing judge determines that an appropriate sentence is in that range, counsel and the sentencing judge must fully explore various options which could eliminate or reduce the offender’s period of actual incarceration while still giving effect to the proportionality principle.
180 Taking into account the mitigating and aggravating factors, we think the trial judge could have imposed a sentence ranging from a sentence at or near the maximum reformatory term, to a penitentiary sentence of three years. 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. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.
Although deterrence and denunciation are the most significant sentencing principles in cases involving the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude a consideration of rehabilitation, particularly in the case of a youthful first offender, who will receive a first custodial sentence and in particular, the potential of a first penitentiary sentence. In R. v. Borde, [2003] O.J. No 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to his first adult prison sentence and possibly a first penitentiary sentence, it should not be determined solely based on general deterrence and denunciation, rather the sentencing court should proceed on the basis of the shortest possible sentence that will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. In this case Mr. Moye is a youthful first offender, who has never received a probation sentence even as a youth, let alone a custodial sentence. (See also R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 (C.A.), at paras. 32 to 34; R. v. Blanas, [2006] O.J. No. 364 (C.A.), at para. 5; R. v. Dubinsky, [2005] O.J. No. 862 (C.A.), at para. 1; and recently, R. v. Francis, 2022 ONCA 729, at para. 80; R. v. Ali, 2022 ONCA 736, [2022] O.J. No. 4754 (C.A.), at para. 40, and R. v. Sousa, [2023] O.J. No. 694 (C.A.), at para. 37, where the Ontario Court of Appeal has consistently held it is an error when sentencing a youthful first offender to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation.
Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime, in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92 the Supreme Court held:
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [Emphasis added]
Aggravating and Mitigating Circumstances
In considering what is a proportionate and fit sentence for Lewis Moye the mitigating and aggravating circumstances must be balanced.
Aggravating Circumstances
The factors which serve to aggravate Mr. Moye’s sentence include:
- The handgun was fully loaded and 40 rounds of ammunition were also found in his satchel;
- Mr. Moye knew the seriousness of his possession of this loaded prohibited firearm as it was hidden in a satchel he carried;
- A very serious aggravating circumstance is the fact Mr. Moye brought this loaded firearm out in public, which posed an increased risk to members of the public;
- Further, he brought this loaded handgun into a busy pub, frequented by persons indulging in the consumption of alcohol, which also posed a serious danger; and
- Finally, a further aggravating factor is the large number of firearms possessed by individuals in the community and the violence caused by those firearms to individuals involved in criminal activities and to the community as a whole.
Based on the brief facts presented during Mr. Moye’s guilty plea I do not know why he possessed this handgun, although I have no doubt that his possession of this handgun posed a danger for deadly consequences, particularly when his possession of this loaded firearm was in a crowded public place, such as the Brewmaster Pub. The facts did not disclose why Mr. Moye possessed this loaded firearm in a satchel. The aggravating circumstances set out above demonstrate the paramountcy of the sentencing principles of denunciation and deterrence, particularly general deterrence, as well as protection of the public. These are the aggravating circumstances to be considered in determining an appropriate, proportionate sentence.
Mitigating Circumstances
After Lewis Moye pleaded guilty to the charge of possession of a loaded restricted firearm and the facts agreed upon by counsel and Mr. Moye were read, I ordered a pre-sentence report to obtain detailed background information concerning Mr. Moye and his family. An Enhanced Pre-Sentence Report or Morris Report was not ordered, partly because of what I am aware is an inordinate lengthy delay for such a report’s preparation – at the present time I understand it can take in excess of a year and there is a cost for such a report’s preparation that most offenders and their families cannot afford. It is my view that the pre-sentence reported dated April 17, 2024, prepared by Tamika Charles, a Probation and Parole Officer, affiliated with the Ajax-Pickering Probation and Parole Office, is very detailed and specifically deals with issues of systemic racism experienced by Lewis Moye and anti-Black racism which exists in the communities he has resided in, the schools he has attended, as well as his interactions as a youth, teenager and university student in his experiences with police officers, and in my view the PSR addresses these issues in such a way that I am able to consider them in my assessment of Mr. Moye’s moral blameworthiness in respect of the offence he has pleaded guilty to.
I am also aware of the general comments expressed in the EPSR in Morris, which was attached as an Appendix to Justice Nakatsuru’s sentencing judgment and considered by the Court of Appeal in their decision. I have read this Appendix previously and again for this sentencing. Further, I am aware of what the Court of Appeal in Morris observed in para. 42 that much of its contents are properly the subject of judicial notice. In fact, the court stated it “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders”: Morris, at para. 43
It is important to note that the background circumstances of Mr. Moye’s upbringing do not in any way excuse his criminal conduct in possessing a loaded restricted firearm; however, they do reduce to some degree his moral responsibility. This is not to say his degree of responsibility is not significant, it clearly is, but it is mitigated by these systemic and background circumstances.
Mr. Moye is a youthful first offender who does not have a prior youth or adult criminal record. This is a significant mitigating factor and raises the importance of rehabilitation and restraint despite the seriousness of this offence.
Mr. Moye pleaded guilty to the possession of a restricted firearm with ammunition offence contrary to s. 95(1) of the Criminal Code. His guilty plea demonstrates his remorse and acceptance of responsibility for his actions. This is a mitigating circumstance.
Mr. Moye has the support of his mother and younger sister, who both provided information in the Pre-Sentence Report, dated April 17, 2024, authored by Tamika Charles. As I have discussed in dealing with Mr. Moye’s background, he is extremely close with his sister and with his mother. The fact he has strong family support is a positive factor relating to his being successful in the future respecting his rehabilitation.
Mr. Moye completed his grade 12 and despite having difficulty in his first three years of high school, he was an Ontario Scholar having made the decision to apply himself after meeting with the guidance counsellor and his mother at the end of grade 11. He pursued university in Ottawa for five years and is currently six credits short of obtaining his degree. As discussed, Mr. Moye has held a number of part-time job positions during high school and university to assist in paying for his schooling. He worked for approximately four years at a chain coffee house while at university. He was employed as a forklift operator for four months just prior to his arrest. As part of his bail plan, he became involved with Oaks Revitalization Association, which is an organization assisting individuals who are justice-affected and supports them in securing meaningful employment. He completed the four-week mentorship component of the program. The imposition of his sentence was adjourned to allow him to complete the eight-week hands-on training component on May 10, 2024, where he is specializing in high rise forming. There is a letter, marked as Exhibit 2, from Mark Tenaglia, the Executive Director of ORA, dated April 21, 2024, which speaks positively about Mr. Moye’s attitude, hard work and leadership in the program. These are mitigating factors which also demonstrate his being a successful candidate to be rehabilitated in the future. Mr. Moye was on house arrest as part of his release order since his release and has no breaches of any of the condition of his release order or had any further involvement with the police or any new charges. His house arrest condition was varied twice to allow him to participate in a residential rehabilitation program that he attended for a month until the program ended due to funding issues. And further, the house arrest condition was also varied to allow him to begin working in the Oaks Revitalization Association Program. His completion of this program has resulted in his being registered as a unionized member with LiUNA Local 183. His strict release conditions are treated as a collateral mitigating circumstance pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.), to be taken into account in determining an appropriate sentence. This is a mitigating factor which must be considered in arriving at a fit sentence, although the case law is clear that there is no mathematical formula that can be applied to reduce a sentence. In this case, I am taking into account the mitigation created by Mr. Moye’s restrictive house arrest release condition although I do not intend to assign a specific amount to it.
It should be noted that despite the six-month rehabilitation program ending after only one month, Mr. Moye, through his own hard work, has made great advances in overcoming his involvement with alcohol and illicit substances. Currently, Mr. Moye advises he does not consume alcohol or drugs, other than marijuana. His mother and his sister both corroborate this from their observations of his changes in behaviour.
I find these mitigating circumstances considered together support a finding that Mr. Moye has good prospects for rehabilitation.
Range of Sentence
The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:
Sentencing ‘ranges’ …are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. And to consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality… Individual circumstances matter.
In R. v. D.D., [2002] O.J. No. 1061 (C.A., Moldaver, J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.” (See also R. v. Lacasse, supra, at paras. 57-58, 60-61.)
This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:
Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered ‘averages’, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:
A judge may order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44)
In other words, sentencing ranges are primarily guidelines and not hard and fast rules.
As discussed above the fundamental principle of sentencing is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a “highly individualized exercise” and “determining a proportionate sentence is a delicate task.” (Lacasse, at para 13). In some cases, the facts and circumstances will be such that a sentence outside the usual range will be appropriate.
An important sentencing consideration in respect of a youthful first-time offender is the principle of restraint, which has been codified in section 718.2 of the Criminal Code and states that:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) 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.
In R. v. Stewart, 2022 ONSC 6997, [2022] O.J. No. 5646 (SCJ), at paras, 74-77, involving somewhat similar facts to Mr. Moye’s offence, Justice Copeland (as she then was) expressed these views concerning ranges of sentencing respecting possession of loaded restricted firearms, which I accept and adopt:
74 The range of sentence for a first offence of firearm possession offences is sometimes stated as three to five years. However, stating the range in this manner excludes an established range of sentences as low as upper reformatory (including conditional sentences) for young first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking. In general, sentences above three years involve some other criminality such as drug trafficking, connected to the firearm possession: R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras 47-48; R. v. Graham, 2018 ONSC 6817 at para. 38; R. v. Beharry, 2022 ONSC 4370 at para. 31.
75 In Morris, the Court of Appeal reiterated the importance of denunciation and general deterrence in sentencing for firearm possession offences. For that reason the court held that a three-year sentence will be appropriate for the vast majority of s. 95 possession offences. However, the court also held that sentences at or just below the two-year mark may be appropriate for some s. 95 offences: Morris at paras. 71 and 131. See also: R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30 (additional reasons at 2014 ONCA 49, 306 C.C.C. (3d) 351); R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Beharry at para. 31; R. v. Lewis, 2022 ONSC 1260 at para. 34; R. v. Dubois, 2022 ONCJ 88; McLarty-Mathieu, 2022 ONCJ 498.
76 The Court of Appeal has also recognized that in some cases, particularly those involving young adults with no criminal record and good prospects for rehabilitation, a conditional sentence of imprisonment may be an appropriate sentence even for serious firearm possession offences: Morris at paras. 124-28, 180-81; Desmond-Robinson.
77 In my view, many of the cases relied on by Crown counsel for a sentence in the range of four years are distinguishable on their facts. Further, they are superseded by the more recent Court of Appeal authority of Morris and Desmond-Robinson in relation to upper reformatory sentences being within the range for young first offenders, where other criminality (such as drug trafficking) is not present.
The Court of Appeal in a recent decision respecting child luring, R. v. Faroughi, 2024 ONCA 178, [2024] O.J. No. 1102 (C.A.) dealt with the principle of restraint as it related to youthful first offenders to be sentenced respecting cases of sexual offences involving children and held, at para. 73. I will just as a side note say this is a significant case from our Court of Appeal because it deals with cases where the Court of Appeal has indicated previously conditional sentences were likely not appropriate for child sexual abuse cases and now in Faroughi they are indicating as follows at paragraph 73:
…Nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence: Proulx, at paras. 102, 107; R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at paras. 71-73. And the restraint principle continues to be applicable in circumstances where, like in this case, where the primary sentencing principles are denunciation and deterrence: R. v. A.B., 2023 ONCA 254, at para. 55; R. v. S.K., 2021 ONCA 619, at para. 12. This court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children: see e.g., R. v. M. M., 2022 ONCA 441, at para. 16; R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, at para. 2.
Determining the Appropriate and Proportionate Sentence for Lewis Moye
In Mr. Moye’s case the facts only indicated that an employee of the bar observed what appeared to be two individuals involved in the sale of drugs in the bathroom but on the facts presented, Mr. Moye was not identified as the individual who was selling the drugs. The facts indicate an argument developed between the employee and Mr. Moye, but no details were provided as to what actually occurred. Mr. Moye was outside the establishment when the police arrived and when his satchel was searched incident to his arrest, the loaded restricted handgun was found. I was not advised what Mr. Moye was arrested for or whether the other individual in the washroom was arrested by the police. Based on the precedents provided by Mr. Quinlan and discussed in the reasons of Justice Copeland in Stewart, there is no evidence of other criminality such as drug trafficking or where the firearm is used to threaten someone, ranges from upper reformatory sentences (including conditional sentences) to three years can be appropriate. It is my view having regard to the seriousness of the offence, the mitigating and aggravating circumstances present in Mr. Moye’s case, and the personal circumstances of Mr. Moye, the appropriate, proportionate sentence is just below or at the two-year mark. As such I must consider, in light of Morris, and Desmond-Robinson, whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.
The offence of possession of a loaded restricted weapon is an offence for which a conditional sentence under s. 742.1 of the Criminal Code is available. There is no longer a minimum sentence of imprisonment required for this offence, as found in R. v. Nur, 2013 ONCA 677, affirmed 2015 SCC 15, [2015] 1 S.C.R. 773. I recognize that this offence is a very serious offence which poses a significant danger to the community. However, Mr. Moye is a youthful first offender and I am satisfied that service of Mr. Moye’s sentence in the community would not endanger the safety of the community having regard to the steps already taken by Mr. Moye in terms of his substance abuse, his employment, his strong family support and the fact he has been on a house arrest release order for a little more than 10-months without coming into conflict with the law, being charged with any new criminal offences or breaching any of the conditions under his release order.
The remaining precondition under s. 742.1 is a determination of whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. As I have indicated above, in Morris the Court of Appeal held that where the appropriate sentencing range includes sentences at or below two years, a sentencing judge must give careful consideration to the imposition of a conditional sentence. Further, properly utilized, a conditional sentence “can ameliorate the longstanding problem of the over-incarceration of young Black men”: Morris at para. 1980. It is my view that a sentence in the upper reformatory range is within the appropriate range having regard to Mr. Moye’s youth, the fact he is a first offender, his guilty plea and the steps he has taken while on release.
Justice Copeland (as she then was) in Stewart, described how sentencing a youthful first offender can be a very difficult sentencing decision and I adopt her observation at para. 86:
Sentencing principles often pull in different directions. This case illustrates a not uncommon tension – where the principles of denunciation and deterrence pull in one direction and rehabilitation and restraint in another. I must grapple with the need for general deterrence and denunciation as a result of the public danger posed by handguns, while at the same time giving effect to the principles of restraint and rehabilitation as a result of Mr. Stewart’s young age and circumstances. I will consider each of these sentencing objectives, denunciation, general deterrence, rehabilitation, restraint, and also specific deterrence, and the overall weighing.
There is no doubt the serious gravity of offences involving the unlawful possession of firearms and the risk posed to the public, which requires consideration of the need to denounce and to deter others from committing similar offences. The Supreme Court of Canada and the Ontario Court of Appeal have recognized that properly crafted conditional sentences are capable of effecting a significant measure of denunciation and general deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22, 79, 102, 105, 107 and 127 10; R. v. Ali, 2022 ONCA 736, [2022] O.J. No. 4754 (C.A.), at paras. 29-33. Where the various sentencing principles pull in different directions a sentencing judge must balance and weigh the various objectives in order to properly fashion a fit and proportionate sentence: Proulx, at paras. 81-85, 106, 113-116 and Ali at paras. 32-33. In Proulx at para 22, the court recognized a conditional sentence will often be more effective in achieving restorative objectives such as rehabilitation.
Given the positive steps already taken by Mr. Moye and his compliance with his house arrest release for 10 months, I am of the view that specific deterrence takes on a lesser significance and a sentence of “real” jail is not required to bring home the seriousness of his criminal conduct. A further house arrest condition, coupled with GPS monitoring to bring home the fact this conditional sentence is a jail sentence, which is served in the community, in my view will accomplish the principle of specific deterrence.
As I have indicated already, it is my view that Mr. Moye has very good prospects for rehabilitation and being successful in his rehabilitation respecting substance abuse and addressing issues from his early childhood will better serve public safety. Encouraging his employment pursuits will contribute to his being a contributing member of the community (see R. v. Bissonnette 2022 SCC 23, 2022 S.C.C. 23 at para. 48). And as I have already discussed the principle of restraint when dealing with a youthful first offender becomes important and must be balanced with the principles of denunciation and deterrence and s. 718.2 (d) and (e) mandate where incarceration is necessary, the shortest sentence of imprisonment that will achieve the sentencing objectives, Batisse, at paras. 32-35 and Ali at paras. 40-42.
It is my view a conditional sentence can, in the unique circumstances of this case, provide significant deterrence where punitive conditions are imposed, which involve house arrest, together with supervision by GPS bracelet. It is my view such a term in a conditional sentence would reflect for the community the serious gravity of the offence and the severity of the sentence imposed. A conditional sentence, as recognized by the Supreme Court of Canada and Ontario Court of Appeal will be better able to advance and support Mr. Moye’s rehabilitation by continuing his counselling for substance abuse, addressing some of the underlying issues created during his upbringing related to the violence he experienced, supporting his efforts to become established in a skilled trade and to allow him to continue to receive his family support. A further benefit of a sentence in the reformatory is that a further period of probation can be imposed, which has the potential to continue Mr. Moye’s rehabilitation, which will increase the long-term safety of the community: Morris at paras. 130-131, 182. A two year less a day conditional sentence followed by a two year probation order will allow for a longer period of supervision of Mr. Moye than the three year penitentiary term sought by the Crown.
Considering the totality of the circumstances presented in this case it is my view, given Mr. Moye’s lack of a criminal record, his youth, the potential for rehabilitation evidenced by the active steps he has already taken, his motivation to continue his rehabilitation and the fact that there is no evidence his possession of this firearm was connected to other criminal activity, a conditional sentence is a proportionate sentence, which properly takes into account the gravity of the offence and his moral blameworthiness.
As a result, Mr. Moye if you would stand now sir. I sentence you as follows:
A conditional sentence with conditions to be served in the community of two years less a day;
Followed by a two-year term of probation, which will include a community service condition in addition to other conditions.
I am also imposing the following ancillary orders:
An order to provide a sample of your DNA, you will do that today as I will discuss pursuant to s. 487.051 as a secondary-designated offence, under the Criminal Code.
A s. 109(1)(b) order which is a weapons prohibition order for life. This is under the Criminal Code.
And an order of forfeiture of the firearm, magazine and ammunition seized pursuant to s. 481(1) of the Criminal Code.
I will discuss now with counsel the appropriate terms and conditions to be part of the conditional sentence and probation order. You can have a seat again sir.
LEWIS MOYE: Thank you.
THE COURT: I do want you to understand Mr. Moye, first of all with respect to the conditional sentence. What some people do not understand but I make sure everybody that I sentence to a conditional sentence does understand. If you breach any of the terms of this conditional sentence you will be brought back before me. And I will have to determine whether you should serve whatever is remaining of your conditional sentence in real jail or allow you back on the conditional sentence. So it has very serious consequences for breach and I am one of those judges that insists that the matter come back before me as opposed to being done in front of somebody else. So, just so you are aware that is something that can have very very serious consequences.
So these are the terms and conditions. I want you to listen carefully and if there are any other conditions the Crown wants or your counsel Mr. Quinlan wants me to impose, then I will have them indicate things to me after I have gone through those conditions that I think are necessary.
One other thing that I am going to do because I am back in this jurisdiction over the next while as you may or may not know, I think you do know, I am a per diem judge now. I have retired but I still sit and I can sit until I am 75. So I turn 75 far after this sentence will be over. One of the things that I used to do regularly as a full-time sitting judge is have individuals come back before me to tell me how they are doing. I am going to do that with you. I think that is an important aspect of my sentence. It will keep you responsible knowing that you are going to be coming back in front of Justice West and having to show the good things that you have done up to this point are continuing in the future.
I have great hope for you Mr. Moye. I think you are a very intelligent young man. I think you made some really really stupid, bad decisions as I think you also recognize. You have expressed that to the probation officer on several occasions during that report I read. That was a very positive report. I said in my reasons I hope they get back to Ms. Charles. I hope she becomes your probation officer because I think that was one of the best Pre-Sentence reports that I have read and I will tell you every report I get here in Oshawa I think are excellent reports. I think we have one of the best probation offices in the whole province in this court and this area. I will tell you as a per diem judge I sit everywhere now. I have always done cases even as a full-time judge. I did cases as a defence lawyer all over the province and I will tell you I cannot say that every PSR that I receive from every jurisdiction in this province meets the same quality that I experience here in Oshawa. Ms. Charles rose above that what I consider to be very high. That was an excellent Pre-Sentence report. You should listen to her if she becomes your probation officer, she will only want to assist you in your rehabilitation, ensuring that you never ever come back before court again.
So these are the terms, listen carefully.
There are a number of statutory conditions, the most important of which in any probation order or conditional sentence is to keep the peace and be of good behaviour. Everybody in my courtroom has to do that without a court order. You now have two court orders that for the next four years is going to require you to keep the peace and be of good behaviour. You commit any criminal offence of any kind over that period of time, you will back before the court charged not only with those new charges, but also with breaching either the conditional sentence in which case you will be back in front of me or in the case of the probation order, you will be charged with breaching a court order, the probation order. Judges treat breaches of court orders seriously. Usually jail. So just be aware.
You will appear before the court when required to do so by the court. That is why I am going to have you come back to see me because I can do that as a judge.
You are going to report as the court directs in person to a supervisor, thereafter report when required by the supervisor and in a manner directed by the supervisor.
This is an important condition I am about to tell you now. You are to remain in Ontario unless you have prior written permission from the court or the supervisor to leave the province. You either have to come back to me to ask for permission to leave and it would have to be a really good reason or you have to get it from your supervisor. That would be Ms. Charles (hopefully she will be).
You are to notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation. Promptly means what it says, promptly, right? Within a week I would think, no later.
The other thing that I will mention to you is if I'm sure Mr. Quinlan's indicated this to you when he was doing plea comprehension. You are likely never going to be allowed to go into the United States with this conviction. They have a principle of moral turpitude is the way they call it. Basically if you are convicted of any offence, you are also -- they also do not recognize conditional discharges which is one of the least serious sentences that we impose in Canada as judges. They do not recognize those as discharges, only findings of guilt. They view them as convictions and so they will not let people even with conditional discharges into the United States. So do not try to sneak in, there are consequences down below and frankly there is a whole lot of other places in Canada that are far better to visit than our neighbours to the south even though it is warmer to the south. There is a phrase (I have Norwegian in my background) by Norwegians, the only bad weather relates to bad clothes and not being dressed properly. Right? You can be in any kind of weather if you are dressed for it.
You are going to report in person to a supervisor immediately. That will be today. And after that at all times and places directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
For a portion of this conditional sentence and I will get to that in a moment you are going to be on GPS. You must go straight home from here after seeing someone at the probation office. After doing your DNA down in the basement of this building. You cannot stop anywhere on the way home. You have to go straight home and remain in your home until RSC (the company that provides the GPS) installs it on your ankle, your leg and in your home. You cannot leave. Just to let you understand that.
MR. QUINLAN: Just to advise Your Honour he is currently on GPS, but sometimes they have to flip it over. So you go straight home like His Honour says.
THE COURT: You still got to go on your house arrest you are on GPS.
I am going to put a term in here that you are to cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance. So you must provide proof of compliance with any condition of this order to your supervisor on request.
You are to live at a place approved of by the supervisor and not change that address and obtain any consent of the supervisor in advance. Where you live is very important, particularly when you are on the GPS.
This home confinement condition will be in effect -- just give me a moment. You are going to be on home confinement GPS for the first 16 months of the two years less a day. That is two-thirds. As I will discuss for the latter two-thirds, you will not be on GPS anymore, you will be on curfew, but understand as I will say this again to you, there is a compliance unit with every police force in the province and they check up on people who are on court orders. So they will make sure you are abiding by your curfew and I take the view that it is not a house arrest condition and there is no need to have you on a GPS and have all the members of our community pay for that because you will not pay for this GPS. So just on the 16 months of house arrest.
Now what day would he like to shop for necessities? I do four hours.
LEWIS MOYE: Sunday or Saturday I guess.
MR. QUINLIN: He's asking for Saturday four hours Your Honour.
THE COURT: Saturday. If I said from 12:00 till 4:00. Is that good?
LEWIS MOYE: Yes.
MR. QUINLAN: Yes.
THE COURT: Thank you. All right so Madam Clerk Saturdays 12 noon to 4:00 p.m. he is allowed to be out. Now I want you to understand. Shopping for necessities is not taking a walk in the park. It is not going to the gym. It is not going to a movie. It is shopping for necessities. It is called food, maybe a haircut. It will be maybe filling up your car with gas. At any other time during the week your car needs to be filled up, you cannot do it. Just so you understand. Okay. Only once a week.
For any medical emergencies involving you or any member of your immediate family. You are still living at home?
LEWIS MOYE: Yes.
THE COURT: For going directly to and from or being at school, employment, do you attend religious services? Religious services and legal or medical or dental appointments. So just so you understand, you can be out and your conditional sentence supervisor is going to do up a letter which indicates all the things that you are for. So your employment you will have to give all the details of whatever jobs. Where you are working. What time you start. What time you leave. If it changes because of the nature of your work, then that will have to be provided to your supervisor. Madam Clerk?
CLERK REGISTRAR: Was there court attendances in that as well?
THE COURT: I am not doing court attendances. I do not see there is a need for any -- actually I will say court attendances. He is going to be coming back to see me. Thank you.
CLERK REGISTRAR: You're welcome.
THE COURT: All right for going directly to or from or being at assessment, treatment or counselling services. That will start under your conditional sentence and will continue even under your probation. You may have completed everything in which case it will not apply under probation. You will confirm your schedule in advance with the supervisor setting out the times of these activities.
I am not going to have you do community service under the conditional sentence because I am more concerned about you continuing with whatever counselling and whatever assessments (those kinds of things) I want you to spend time on that because I think that is important for you. Hopefully that is all completed within that two years less a day while you are on the conditional sentence and you can do community service in the latter two years of probation that I will get to in a moment. Okay. You understand.
I will put a term in with the prior written approval of your supervisor. Things happen in life where I do not want you to have to go to a funeral, but you may have family members or people that you know really close to you either in hospital or have a funeral, in which case you get permission -- you can get permission from your conditional sentence supervisor. But you cannot go unless you have that permission. And the written approval is to be carried with you during those times because it will be an exception.
And for carrying out any legal obligations regarding compliance with the conditional sentence order. So that will be most likely just dealing with you attending the probation and parole office to see your conditional sentence supervisor.
During your period of home confinement you are not to change your place of residence without first obtaining the written permission of your supervisor. So you just cannot move, you have got to plan for those things. You have to have it in writing.
There are a whole bunch -- I am not going to read them all because we would be here for another half hour, but there is a Schedule A that you are going to have to sign. It will be gone over with you and this will be the GPS rules and protocols by RSC for conditional sentence orders. If you do not sign this, you are not going to be on GPS. You will be back in front of me and I might have to put you in real jail.
And then there is wording that is going to be indicated Madam Clerk on here. The GPS monitoring is for the first 16 months of the sentence only and again you will read through this required wording for conditional sentence orders. This is the new process that we are involved now with RSC is the provider of GPS.
The important thing is they are going to give you a whole list of things that you can do and cannot do. With respect to the GPS itself.
I had a defendant on one case that I gave a conditional sentence who tried to explain to me that somehow the GPS was injuring his leg. He took a shower with it on purpose I believe so that he could take pictures to show me the injury that it was doing to his leg because he was applying to have it removed. I have been handing out electronic supervision orders under conditional sentences since Proulx came into being. So that is back in 2000, so that is 24 years. I never had anyone come to me and tell me there is a problem caused by the GPS or the previous electronic supervision. It is going to tell when you are not where you are supposed to be. That is what it does. And it is a constant reminder because you know about it, it fits around your leg. Right? So treat it appropriately.
Madam Clerk for the remaining eight months of the conditional sentence order it will be a curfew. And this curfew is that you are to remain in your residence or on the property of your residence at all times daily between the hours of (and again just so you understand, a conditional sentence is a jail sentence served in the community. Some people don't understand that. Some lawyers don't understand that. It is a jail sentence. That is what Proulx says. I know they said it 24 years ago, but it is still the law and there has been subsequent cases. So I do want you to understand this. The curfew is not going to be the easiest curfew. It just means that you get to spend more time with your sister and your mother. And continue to build your relationship with them and gain their support. There will be exceptions. It will be from 7:00 p.m. until 6:00 a.m. in the morning. Except for any medical emergency involving you or any member of your family. Except for any hospital visit or funeral attendance (because sometimes you visit hospitals in the evening). You must provide written justification to the supervisor prior to any such absence during your curfew hours.
I will put a term here and I am trusting you on this. So I want you to hear me. But I am going to put a term and this is because what I believe is the relationship you have with your mom and your sister when you are in the direct company of both your mom and your sister. So in other words if in an evening the three of you wanted to go out for dinner and you were going to pay, then you could go out to dinner.
Travelling directly to, from or while at work or school or with the prior written permission of your supervisor. I do not think there will be any other things. So there may be other things that come up and your supervisor may change.
I am going to put a term in your conditional sentence order that you are not to possess any weapons as defined by the Criminal Code. They are all set out.
I will put in that you are to attend and actively participate in all assessment counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. I am going to say for substance abuse, alcohol abuse. Those are not you are telling you have problems now, but I want your supervisor to know that it is not a problem.
Or any other reason your conditional sentence supervisor deems appropriate. I want you to be open and honest Lewis with your conditional sentence supervisor. I cannot tell you how important this is because this is an opportunity for you to fully understand, gain awareness and insight into things that happened when you were a child before you came to Canada. I cannot imagine some of the things that you probably experienced in your homeland. I cannot imagine some of the things that you experienced in the neighbourhoods that you grew up in. I think one of the reasons why you are not one of those friends of yours that died due to homicide is because of your family and because of things that were instilled in you. But I do want you to understand this is the opportunity to deal with those underlying issues. I think you are a very intelligent young man. I think you proved that in grade 12 and then you sort of lost your way when you found out that your father who you had issues that you are going to have to deal with as well because some day you may want to become a father yourself. You need to deal with those issues in terms of how you were raised by your father and what you saw as abuse of your mom and your sister and yourself, completely inappropriate and so that it does not happen to you. It would be a horrible thing for you to have a partner, have children and engage like your father engaged to your partner or your children. I just want you to hear that from me. So you need to deal with that because I guarantee if you do not, the apple does not fall far from the tree to use the vernacular. It does not fall far. Things that you experienced as a child will come back to haunt you as an adult. So you need to deal with that. I guarantee if you do, you will probably not have any difficulties. And if you feel you are having difficulties, you will know where to turn to gain assistance.
The same thing applies to those who become addicted to alcohol or drugs. I guarantee you those who become addicted to alcohol and drugs it relates to other things in their lives that happened when they were younger or happening to them at the time they become an addict. Once an addict -- you say you have been to some AA and NA meetings -- once an addict always an addict. It is not something that -- it is not a light switch. You cannot turn it on and off. That is there within you. It is part of who you are, part of your personality and you have to learn how to deal with that aspect of your personality. Guarantee that if you do, you'll be like a friend of mine who has been sober and drug free probably now for well over 30 years. He still goes three nights a week to AA. He was addicted to cocaine and he was addicted to alcohol. Lost his first marriage, best friends with his ex-wife now, not back in those days. He is a grandfather with his first set of kids and his second set of kids are probably in their twenties now, but I used to tease him that God was punishing him because he had to go through teenage years twice. Anybody in this room who has teenagers they know exactly what I am talking about. Not that you do not love your kids, but teenage years are difficult. It takes special people to be parents with teenagers I think but anyway.
So if he was here he would tell you you should still go to AA. Something for your to consider. Get a sponsor, get somebody has been through what you have been through. They can assist you as well and then maybe someday you can become a sponsor and give back like he does. That is why he goes three times a week now. Has been for I think probably 20 years, three times a week as a sponsor to others because of how he was helped. A very successful guy today. He is a grandfather, has a really good relationship with his new wife. It is not so new anymore because his kids I think in their twenties. They will be getting married and he will have grandkids with them.
You shall sign any release of information forms as will enable your supervisor to monitor your attendance of completion of any assessments, counselling or rehabilitative programs as directed and you will provide proof of your attendance of completion of any assessment, counselling or rehabilitative programs as directed.
I do want to say something to you since I read this in the PSR that you are still using marijuana. I hope you are not using it every day. I hope you are not going to use it anymore. I hope you gain some insight into that because I want to tell you at 27 you use marijuana every day, you are going to be in trouble again down the road. You should read the learned articles not the conspiracy theories that you can read on the internet these days. Get some articles that are written by doctors and those who research. But young people who use marijuana is not a good thing. There are some good things for marijuana, but you need to be prescribed by a doctor. Somebody who is qualified. I think it can help with pain for some people. I have had individuals before me that use marijuana for pain. I think it can help with sleep for some individuals. You may need other medication. I want you to hear this from me. You identified your father likely suffered from PTSD, that is a mental health illness. It is real. So your dad probably needed to be on medication to deal with his abuse of your family members. So the point I am saying to you is there may be because of things that have happened in your past that may be there is medication that would assist you and then ultimately you get insight and awareness of it and may be you can be weaned off the medication. Nothing to be ashamed of if you have mental health issues, it is not your fault.
So I really want you to look into that and that is why I also put substance abuse down because I think marijuana is still a substance even though its legal. So something for you to think about. I think you are an intelligent young man, so think about that.
Any other terms of the conditional sentence that the Crown is wanting me to impose?
MR. BOODOOSINGH: Thank you Your Honour. Just a couple of consideration. Non-association and communication with the employee from Brewhouse, a...
THE COURT: I am going to say that I don't think he knows that person and I will tell you this Mr. Boodsoosingh.
MR. BOODOOSINGH: Yes Your Honour.
THE COURT: and I said this to Mr. Alderton. I don't give any criticism of him, but this was a case where I didn't get a victim impact statement. I could've got a victim impact statement from that individual and there are community organizations that will provide victim impact statements as it relates to guns in our community to talk about the impact that that has...
MR. BOODOOSINGH: Yes Your Honour.
THE COURT: ...if you look at some judgments for the Crown's office. I told Mr. Alderton that may be that's something that your Crown's office needs to pursue because I think those are important things and I would've like to have seen but I received no facts on the facts as to what the altercation was between that individual. It's not part of the facts that are before me. There was a disagreement, police were called and that's all I know.
MR. BOODOOSINGH: I see. Okay.
THE COURT: So I don't know anything beyond that in terms of what was indicated on the record during the guilty plea.
MR. BOODOOSINGH: And I understand Your Honour's position on that. With respect to...
THE COURT: I can put a term in him not attend the Brewhouse Pub. I think that's probably -- that might be what Mr. Quinlan was going to suggest to me. I have the address and I can give that to Madam Clerk. It's 2710 Simcoe Street North in Oshawa. I will make that as a term both of the conditional sentence and the probation.
MR. BOODOOSINGH: The name of the establishment sir is The Canadian Brewhouse.
THE COURT: Oh.
MR. BOODOOSINGH: Just for the record.
THE COURT: I was misinformed. I was telling you -- it was told to me it was called the Brewhouse Bar.
MR. BOODOOSINGH: Right.
THE COURT: In any event you're saying it's the Canadian...
MR. BOODOOSINGH: Canadian Brewhouse is the actual trade name.
THE COURT: Yes.
MR. BOODOOSINGH: Maybe there's a local legend where it's called the...
THE COURT: Could be.
MR. QUINLAN: The sign seems to change every few weeks Your Honour.
THE COURT: There you go. You drive by it or attend there Mr. Quinlan?
MR. QUINLAN: On my way to defend people in Tri-County I drive by.
THE COURT: There you go you drive by, there you go. Okay.
CLERK REGISTRAR: And the address is 2710?
THE COURT: We'll call it -- I would just call it the Brewhouse Bar and put the address...
MR. BOODOOSINGH: We've got the address.
THE COURT: ...and we'll know exactly where it is.
MR. BOODOOSINGH: Last thing Your Honour would be a s. 490 order for the drugs which were seized, 1.4 grams of cocaine.
THE COURT: That's not part of the facts that are before me. He's not asking for it back and...
MR. QUINLAN: And Your Honour if it's any consolation, it would've been on consent and I do believe my time as Federal Crown it's automatically destroyed any way.
MR. BOODOOSINGH: Thank you for that. That's helpful. Thank you Your Honour.
THE COURT: I understand why you're asking but that was not part of the fact that was put before me.
MR. BOODSOOSINGH: I have facts, but obviously they weren't read to you.
THE COURT: I understand.
CLERK REGISTRAR: Is there a forfeiture order for anything else?
THE COURT: The gun.
CLERK REGISTRAR: Okay and I stepped out to get conditions, so I missed that part of the sentence.
THE COURT: Yes there is the gun and there is a 109 for life.
CLERK REGISTRAR: And Mr. Boodoosingh will do the 490 order?
MR. BOODOOSINGH: Sorry?
CLERK REGISTRAR: Will you do the 490 for the...
MR. BOODOOSINGH: I can draft a 490 weapons forfeiture order for that.
THE COURT: Yes please if you would that -- and I said it not just for the firearm itself, but also for the ammunition and the magazine.
MR. BOODOOSINGH: Ammunition.
THE COURT: As I believe there was a magazine. I could be wrong in that, but if there is one it should be also forfeited.
MR. BOODOOSINGH: Thank you very much.
CLERK REGISTRAR: DNA?
THE COURT: I did a DNA. It's secondary.
CLERK REGISTRAR: Thank you.
THE COURT: The DNA will be before 5:00 p.m. today. I have to put a time. You'll go to probation office first and then straight down and then straight home. And likely if you've already got the GPS they'll likely just do a transfer over because it's a different order now. No other things? No other exceptions Mr. Quinlan?
MR. QUINLAN: None from the defence Your Honour.
THE COURT: Okay. Thank you. And then the only thing with respect to the probation Madam Clerk, it is two years. Statutory terms it is reporting and I am going to say we'll just leave it in the general one -- report in person to a probation officer at the completion of the conditional sentence as directed by the probation officer. It will be the same person most likely unless they change jobs or move offices or something. It will likely be the same person. And then it will continue Madam Clerk the way it always does that and after that at all times and places directed by the probation officer or any person authorized by the probation officer assist in your supervision.
The advantage of that is if you work hard during the conditional sentence with Ms. Charles (we will say it is her), when you start your probation and you have been working hard, she will be the one to determine when you do not need to see her anymore. So if you give her resistance, you will be seeing her until the end of the probation, but if you are working hard with her and she knows you are serious about your rehabilitation, you have probably provided a lot of satisfaction for her and her job knowing that you have been successful and you may not have to report towards the end.
You are going to live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.
The term that you are not to attend the Brewhouse Bar and the address will continue.
The no weapons will continue Madam Clerk that was in the probation order and I will just indicate for the probation to continue any counselling as recommended by the probation officer. So if there is no more counselling, you will not have to do that.
But I am going to have you perform some community service. I believe in community service. If you stop and think for a moment that if everybody in our community was involved in community service, think about what a wonderful community we would be living in. Think about that just for a moment. If everybody cared about everybody the way people should care about each other because they are helping out people less fortunate than themselves, I just think it instills things in people. Unfortunately we live in a world right now where all people are concerned about is themselves. They do not care about others and so I think somebody who has been in trouble with the law, sometimes working with individuals and maybe volunteering doing community service with individuals that are not as well off as you. Some people do it through sports because they have kids. Some people are in Scouting or Guides. Those kinds of programs. But there are lots of programs with food banks and soup kitchens. You live here in Oshawa, St. Vincent's -- I have worked at St. Vincent's. It is a wonderful facility where there are very, very tragic circumstances for many individuals that come there every day for a meal.
So I am going to put community service. I am going to have you perform 100 hours and it will be completed within 18 months of your probation. So you can do it as quickly as you want. You can do it faster than 18 months, but it has to be completed within that 18 months. If you do not complete it, you will be breaching your probation.
And then the only other thing is I want to have you come back and see me. Let me tell you when I am talking about.
CLERK REGISTRAR: Will this be a term of probation?
THE COURT: I'm sorry?
CLERK REGISTRAR: Will this be a term of the probation order?
THE COURT: It will be a term of the conditional sentence and it will continue this term into the probation, but...
CLERK REGISTRAR: Thank you.
THE COURT: ...you may find that I don't need to see you again by the time we've reached the end of the conditional sentence. I tell you one story about when I used to have people come see me. I am a judge for two weeks. I had been a defence lawyer for 26 years and two weeks into this job they were actually hiding me in Oshawa and it was before this building was built. I was in the others because my official swearing in wasn't until St. Patrick's Day even though I was appointed in January. Certain people couldn't be at the swearing in that they first selected so they did it secretly with the Regional Senior Judge in Central East. The Region I sit in. So in any event I was assigned initially to Newmarket, but they hid me here in Oshawa. So I had a gentleman by the name of James Brown and unlike James Brown he was a white man but he had James Brown name and he was a lover of music and he loved James Brown and his lawyer was sort of talking with the Crown as to what they were going to do in terms of sentence because he had stayed an extra two months in custody. He was an addict of cocaine. Also drank too much which led to some of the more recent charges which was assaultive behaviour towards his wife. He had three children and he had lots of breaches. He did not like probation officers. I could not understand and he wanted me to become his probation officer. We had a long conversation about James Brown and about James Brown's music. He thought that was pretty cool that I knew about James Brown and knew about his music. He of course did because he grew up being called James Brown. In any event I did not realize that I could make it as a term of the probation because I was just appointed as a judge and I did not understand the intricacies at that point and even though I had been a defence lawyer for 26 years. You rely on the judge for those things. In any event, so I said well he wanted me to be his probation officer. I told him I could not, I was the judge and I could not be the probation officer. But if he wanted to come back and see me, he could come back and see me in six months. He said "love to". And so I did not make it as part of probation order. I just said okay I will see you. I am back up in Newmarket. He had his grandma in court. He had his father and his wife was there as well. They all wanted him home. He was going to go live initially with his grandma and then he was hopefully going to get back with his wife. In any event, he discovered he was bi-polar at Central East because the mental health worker got a psychiatrist in to see him and he was on medication that is why he stayed two extra months. So long story short, I did not think I would ever see him again because it was not written as part of his probation. I thought he is going to realize he doesn't have to come. He is not going to come. So on a day in September 2008 I get a phone call from my clerk from the court I was in Newmarket saying, hey I’ve got this guy down here with a nine page letter from Lindsay Mental Health Association. His name is James Brown and I don’t understand why he’s here. I’ve got no information for him. I have nothing. And I knew exactly why he was there. So it was an incredible letter. Back with his wife. Working full-time. Leading a Bible study at his grandma’s church. His life was good. He wasn’t committing offences. He was on medication for his bi-polar. No longer had manic phases and depressive phases. Life was really good. His wife was in court. His grandma was in court and his dad was in court. Everybody was happy as was he. It was an incredible letter and I told him I didn’t need to see him and he said, “No, no, I want to come back and see you six months from now. So exactly a year after you sentenced me I’ll still be the same person I am right now” and he did. I got another seven page letter the next time he came back to see me. I didn’t have the information, which is the document that charged him in my courtroom, I will for you because I’m making it part of your conditional sentence. But in any event you can tell it was a story I’m telling you that made me very happy, because he did some things in his life to change and maybe I helped him a little bit as a judge. Same thing will be said about your probation officer. She will want to help you too.
So let me talk about a date for you to come back and say hi. September 10th is a Tuesday. I’m in 404 court. I’m going to make it part of your conditional sentence to appear in front of me on Tuesday September 10th in 404. I’m going to have you come right sharp at 9:30. I’m involved in a very serious sentencing on that date with a gentleman who drove the wrong way on the 401 while he was impaired and killed a man and seriously injured another. So I need you here right at 9:30 so that I can deal with you. And I want you to come prepared to tell me some things that you’ve learned about yourself. I’m not going to ask for an update, often I ask for updates from probation or the conditional sentence supervisor. I might for the second if I have you come back. But this time I just want you to tell me some things that you’ve learned about yourself and how you’re doing. That’s all I want to know. We’ll probably take 10-15 minutes. All right, we’ll see you then.
Now you’ve got papers to sign before you leave here today. You have to go to probation right after. Do you have any questions at all about the sentence that I’ve imposed.
LEWIS MOYE: No.
THE COURT: Okay. I also want you to understand one last thing that I’m going to say to you. I’ve given you in effect a second chance. Right. If you hadn’t done the things that you did. If you hadn’t been through some of the things that you’ve been through, you would be looking right now as a youthful first offender at a jail sentence in real jail. I gave you a jail sentence but it’s not in real jail. I want you to hear that. And it’s because of what you did leading up to today. I think that’s the important thing for you to know. So I want to hear only good things when I see you on the 10th. All right. Okay. Good, see you then.
CLERK REGISTRAR: Courts indulgence.
THE COURT: Madam Clerk do you have some questions?
CLERK REGISTRAR: Still on Markwood?
LEWIS MOYE: Yes.
CLERK REGISTRAR: And that was it for the probation order terms?
THE COURT: The probation will be all similar terms. Not to attend the Brewhouse. The only other thing was the community service of 100 hours.
CLERK REGISTRAR: And continue any counselling as recommended?
THE COURT: And continue counselling as recommended by his probation officer.
CLERK REGISTRAR: Thank you.
THE COURT: You may not have to. So Madam Clerk is going to prepare some documents for you to sign and you may have a seat just outside the court if you wish with your family.
MR. QUINLAN: Thank you Your Honour.
THE COURT: And I thank you all for coming.
...matter was adjourned