ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
LEO ANDERSON
Reasons for Sentence
Before Justice Davin M.K. Garg
Heard on July 17 and 31, 2025
Reasons released on July 31, 2025
Claire Sweeny & Raymond Woloshyn-Chick .............................. counsel for the Crown
Alexandra Valeri ........................................................................... counsel for Mr. Anderson
GARG J.:
Overview
1Mr. Leo Anderson is a young Black man. He has faced overt and systemic racism in his life. This social context provides some explanation for Mr. Anderson's poor decision-making. The sentencing process must acknowledge and squarely address the realities of Mr. Anderson's life to achieve the goal of equal justice for all.
2Mr. Anderson also exercised his free will to commit a dangerous crime. Mr. Anderson decided to attend a Hamilton pub while equipped with a loaded handgun. He ignored two court orders that prohibited him from possessing firearms. The pub is a well-known restaurant and live music venue in Hamilton's Corktown neighbourhood. It is centrally located on a park near residences. Mr. Anderson consumed too much alcohol and was escorted outside. But he refused to take his night elsewhere. He continued to engage in a back-and-forth verbal altercation with the bouncer. During the confrontation, Mr. Anderson repeatedly reached into his satchel. This satchel contained the handgun. When the confrontation turned physical, the handgun—loaded with five live rounds and two spent casings—fell from the satchel and landed on the ground.
3I must impose a sentence that is proportionate to the gravity of the offence and Mr. Anderson's moral culpability. Mr. Anderson's life experiences—including the disadvantages flowing from personal and systemic anti-Black racism—explain to some degree his decision to commit this crime. Nevertheless, based on the aggravated facts of this offence and Mr. Anderson's criminal history, I conclude that rehabilitative goals are subordinate to denouncing the crime, deterring the conduct, and protecting the public. The fundamental purpose of sentencing is to impose a just sanction that protects society, contributes to respect for the law, and helps maintain collective well-being.
4For the reasons that follow, I conclude that a global custodial term of four years, five months, and eight days is the least intrusive and the lowest quantum that fulfills the overall purpose of proportionality. This sentence permits the imposition of a probation order following a further custodial term of two years less one day, after credit is applied for pre-sentence custody.
Positions of the Parties
5The Crown seeks a global custodial sentence of four and a half years: four years for possessing a loaded firearm without authorization, six months concurrent for the breaches of a release order and a probation order, and six months consecutive for the breach of a weapons prohibition. The defence seeks a global custodial sentence between two and two-and-a-half years. The defence did not oppose the ancillary orders sought by the Crown. Neither party submitted on the suitability of probation.
Aggravating Factors
6The aggravating features of this case relate to the circumstances of the offence and Mr. Anderson's criminal history.
Circumstances of the offence
7There are multiple facts that demonstrate the highly aggravating circumstances of the offence.[1]
8First, Mr. Anderson chose to possess a loaded handgun in a public place, specifically a .22 calibre restricted firearm loaded with five rounds of .22 calibre ammunition and two spent casings. The decision to bring a gun into a public setting created unnecessary danger for everyone present: see R. v. Samaniego, 2020 ONCA 439 at para. 54. The trial evidence established that the pub was busy that night. People deserve to feel safe when they spend their Saturday night enjoying live music at a local haunt.
9Second, Mr. Anderson possessed the loaded handgun while significantly intoxicated. He had trouble controlling himself inside the pub, which led to him being kicked out. It is common knowledge that people are prone to making poor decisions when intoxicated. Bravado and belligerence tend to replace sound judgment, as evidenced by Mr. Anderson's actions that night. The risk to public safety is enhanced when the intoxicated person is armed with a loaded handgun.
10Third, Mr. Anderson was confrontational and persistently aggressive that night. He ignored the bouncer's direction to leave the area. He tried to re-enter the pub. The verbal altercation turned to blows. Mr. Anderson's subsequent efforts to retrieve the gun led to another confrontation where the bouncer chased Mr. Anderson across the road. Having acquitted Mr. Anderson of assault, I must ensure that I do not allow unproven assaultive conduct to seep into my analysis as an aggravating fact. But acquitting Mr. Anderson of assault does not render the context irrelevant. I acquitted Mr. Anderson of that charge because I doubted whether he knew that the bouncer was not consenting to force. It nonetheless remains aggravating to engage in a consensual fight while possessing a loaded handgun because of the risks to public safety. The fight increased the chances of the handgun discharging, even accidentally.[2]
11Fourth, Mr. Anderson made dangerous gestures towards the readily accessible handgun. Mr. Anderson was wearing a satchel with the compartment at his front lower torso. The compartment contained the gun. The compartment was open, and Mr. Anderson kept handling it during his confrontation with the bouncer. The video surveillance around 11:00:55 shows Mr. Anderson putting his hand inside the compartment, and the same can be seen when he re-approached the bouncer around 11:01:41.[3] The bouncer saw Mr. Anderson posturing with the satchel and grabbing something inside the compartment.
12This still from 11:00:57 depicts Mr. Anderson in the middle of the frame wearing a toque. He is rushing at the bouncer with his right hand reaching towards the loaded handgun:
13Mr. Anderson is not being sentenced for what might have happened. He is not responsible for consequences that did not unfold. He is, however, being sentenced for his conduct that night, which is relevant to his moral culpability and the risk that he posed to others. His actions in reaching towards the loaded gun and manipulating the compartment that carried the gun increase the gravity of the offence relative to other firearm possession offences: see R. v. M.V., 2023 ONCA 724 at para. 46.
14Fifth, the gun fell to the ground during the physical altercation and remained there for several minutes. Even though Mr. Anderson did not intentionally dispose of the gun in a public place, it remains aggravating that his actions had this effect—a loaded handgun was available to several unknown people. It is fortunate that Good Samaritans prevented Mr. Anderson or malicious actors from retrieving the firearm and stored it safely until the police arrived.
15Sixth, Mr. Anderson blatantly breached multiple court orders. His release order imposed a curfew and prohibited the possession of weapons. His probation order required him to keep the peace and be of good behaviour. I only use as aggravating the breaches that will receive concurrent sentences.[4] The breaches demonstrate the failed efforts to curb Mr. Anderson's risk through community supervision.
Criminal history
16Mr. Anderson has a lengthy criminal record. While he lacks prior convictions for weapons offences, he does have eight prior convictions or findings of guilt for violent offences like assault, robbery, and uttering threats.[5]
17The record is an aggravating factor. It renders a stiffer sentence appropriate because it rebuts a suggestion that Mr. Anderson is of good character. It also increases the need for specific deterrence and suggests a greater likelihood of recidivism: R. v. Taylor, 2004 CanLII 7199 (ON CA) at para. 39.
Mitigating Factors and Collateral Consequences
Mr. Anderson's personal circumstances
18Section 718.2(e) of the Criminal Code has become the cornerstone for incorporating social context evidence into the sentencing process to ensure that the ultimate sentence reflects an offender's individual circumstances, including their experiences of systemic discrimination and historical injustices.
19An enhanced pre-sentence report provided extensive information about Mr. Anderson's background and experiences with anti-Black racism. The report was helpful and compelling. It outlines the overt and systemic racism that Mr. Anderson has endured in his life. It outlines his educational, economic, and social disadvantages that played a role in him committing the offences before the court. At this stage in my reasons, I will focus on how Mr. Anderson's life experiences erected barriers to him forging a positive and prosocial identity.
20Mr. Anderson's struggles with his identity might have started when he had difficulty finding his place as a boy growing up in Jamaica. He expressed how boys were expected to "grow up fast, be a bad man, and love girls". But at the age of seven, Mr. Anderson was exploring his sexuality with older boys. He was fearful of not being accepted by his family. He felt that he needed to "act a certain type of way" to conceal a part of his identity that would not be accepted by loved ones. His mother continues to struggle with his lifestyle choices and identity as a gay man.
21The identity struggles continued when Mr. Anderson immigrated to Canada. His family initially settled in Lynedoch, Ontario. They were the only Black people who resided in the village. They felt isolated and unaccepted.
22Forging a strong identity is difficult in the absence of positive role models. Mr. Anderson reported that his stepfather, who was white, indulged in alcohol, drugs, and racist jokes, which escalated the conflict in the home. Mr. Anderson eventually stopped seeing his stepfather as a father figure. Mr. Anderson believes that navigating life was difficult in the absence of Black male role models.
23Through his upbringing, Mr. Anderson came to believe that "there was nothing good about being Black". Mr. Anderson was the subject of racist jokes and epithets from older children. He envied a biracial friend for his lighter skin complexion and physical characteristics that apparently saved him from ridicule. When Mr. Anderson struggled to fit in through healthy means, he gravitated toward drugs and alcohol as misguided pathways to social connection and belonging.
24The education system did not help Mr. Anderson develop a positive identity. His school registered him in English as a second language despite English being his native language. Mr. Anderson reported that this experience made him feel "stupid" because his fellow students made fun of him.
25Finally, few aspects of a person's identity are more fundamental or enduring than their name. Mr. Anderson's first name is Leo. Yet, around grade six, a teacher named him Leonard. Imposing a different first name on Mr. Anderson, seemingly rooted in racist motivations, contributed to the erasure of his identity. The school refused to use Mr. Anderson's real first name despite his mother's efforts. When the police attended the school in grade eight, the teacher identified him as Leonard. This incorrect first name has followed Mr. Anderson ever since.
26The misnaming continued into this trial. The information showed Mr. Anderson's first name as Leonard. Misnaming Mr. Anderson, even unintentionally, extended his experience of racism. The criminal justice system must do its part to confront, mitigate, and erase racism. I hope that amending Mr. Anderson's name on the information and using the correct name in these reasons will help ensure that the system calls him Leo Anderson going forward.
Harsh conditions in pre-sentence custody
27Mr. Anderson has spent significant time in pre-sentence custody at the Hamilton-Wentworth Detention Centre. I accept that the conditions were harsh due to triple-bunking and restrictions on liberty. For example, the institutional records show that Mr. Anderson was triple bunked for 73 days from December 16, 2023, to October 31, 2024, meaning that three inmates were housed in the cell roughly 23% of the time.[6] The records also show days when Mr. Anderson had the cell to himself. While institutional records were not filed for dates past October 31, 2024, the parties were content that I take notice that triple bunking generally continued, without specifics on the rate. Furthermore, the institutional records and Mr. Anderson's journal show that he faced liberty restrictions through partial lock downs[7] and lock downs starting at 6pm. There have also been some full lock downs. In assessing the harshness of the conditions, I do not rely on Mr. Anderson's assertion that he was strip searched. I do not have reliable evidence on the circumstances of the search and what prompted it.
28Mr. Anderson's time in pre-sentence custody is a mitigating circumstance or a collateral consequence that is relevant to fashioning an appropriate sentence. The over-housing and liberty restrictions have negatively impacted Mr. Anderson's mental health. He described the experience as "draining" and difficult due to the lack of privacy and inability to move about. The lock downs have prevented inmates from blowing off steam, which can contribute to violent eruptions.
29I decline to give Mr. Anderson a sentence reduction in the form of numerical credit: see R. v. Marshall, 2021 ONCA 344 at paras. 50-53. Rather, "particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence": Marshall at para. 52.
Immigration consequences
30Mr. Anderson is a permanent resident. He faces the risk of deportation on account of his criminal history and the offences before the court. No one suggests that I fashion a sentence to attenuate the risk of the immigration consequences. But I accept that the sentence will necessarily have a greater impact on Mr. Anderson because of his circumstances than it would for a Canadian citizen: see R. v. Suter, 2018 SCC 34 at para. 48.
Family separation consequences
31I must consider family separation consequences when evaluating the length of the custodial term: R. v. Habib, 2024 ONCA 830 at paras. 44-45. Mr. Anderson has a son who is approaching his tenth birthday.[8] Extending Mr. Anderson's time in custody could have negative ramifications for his son. Just as Mr. Anderson grew up without positive male role models, his absence threatens to write a similar chapter in his son's life. The cycle of unmet guidance could renew. Courts try to minimize the impact of sentencing on an offender's family because "interfering with this foundational social institution … can endanger community safety and society's well-being": Habib at para. 46.
32Nevertheless, I conclude that family separation considerations will minimally impact the sentence that I impose. Mr. Anderson describes his son as his "saving grace" and a source of motivation. While that might reflect Mr. Anderson's personal sentiment, I am not satisfied that Mr. Anderson's absence while incarcerated will pose a palpable problem for his son, particularly given the lack of evidence that I accept of Mr. Anderson being a consistent or constructive presence in his son's life while in the community: see Habib at para. 43.[9] Nor is there evidence showing that the son has suffered hardship during Mr. Anderson's current period of incarceration.
Proportionality Analysis
33The fundamental principle of sentencing is found in s. 718.1 of the Criminal Code. I must produce a sentence that is proportionate to the gravity of the offence and Mr. Anderson's degree of responsibility: R. v. Morris, 2021 ONCA 680 at para. 61. "Proportionality is the sine qua non of a just sanction": R. v. Ipeelee, 2012 SCC 13 at para. 37.
Gravity of the offence
34The possession of a loaded and concealed handgun in public is a grave offence with a heightened degree of normative wrongfulness. The crime puts the public in real and immediate danger. "A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society": Morris at para. 68; see also R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (Sup. Ct.) at para. 25.
35Parliament has indicated that the courts should re-calibrate their view on the objective gravity of the offence. On December 15, 2023, Parliament increased the maximum sentence for the possession offence under s. 95 from 10 years to 14 years. Increases to the maximum indicate Parliament's determination that the offence be treated as more grave than before: R. v. Friesen, 2020 SCC 9 at paras. 96-100.
36The aggravating factors cited above render this offence even more serious than other already grave instances of possessing a firearm in public. Mr. Anderson was confronting and fighting a bouncer while intoxicated and repeatedly reaching towards the loaded firearm in his satchel. His actions fall at the "true crime" end of the spectrum of gun possession: see Morris at paras. 20, 151, 162.
Mr. Anderson's degree of responsibility
37Systemic and background factors, including those attributable to anti-Black racism, are relevant when sentencing Mr. Anderson. Those factors help to explain his commission of the crime: see R. v. Hamilton, 2004 CanLII 5549 (ON CA) at para. 135.
38Evidence that Mr. Anderson's choices were limited or influenced by his disadvantaged circumstances speaks to his moral responsibility: Morris at para. 76. A direct causal link to the offences is not needed for Mr. Anderson's background to mitigate his personal responsibility: para. 96. "There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence": para. 97.
39The connection in this case is not obvious or direct. But the connection is present. I found persuasive defence counsel's explanation of how Mr. Anderson's background played some role in the offences before the court. The enhanced pre-sentence report reveals that a script was being written for Mr. Anderson—crafted not by him, but by the systems and individuals surrounding him. This script cast him in a role shaped by exclusion and instability, setting the stage for antisocial outcomes. In many ways, Mr. Anderson lived out the script handed to him, rather than one he authored himself.
40A straight line cannot be drawn from Mr. Anderson's background to his decision to arm himself with a loaded handgun. But Mr. Anderson's experiences nevertheless bear on his moral culpability because they help explain his overall poor decision making and non-adherence to social norms. I detailed earlier the systemic and overt erasure of Mr. Anderson's identity over the years. His experiences of being bullied, harassed, and targeted because of his skin colour compromised his mental health and pushed him towards substance abuse. Without positive Black male role models in his life, Mr. Anderson lacked the support he needed to withstand assaults on his sense of self-worth and the "othering" he encountered. Mr. Anderson's limited educational achievements, which likely resulted from his poor experiences in the education system,[10] contributed to his economic and social disadvantages. Mr. Anderson's confrontation with the bouncer, which aggravated the offence, might have demonstrated his learned response to unfair treatment by people in authority. While there is no basis to find misconduct by the bouncer, Mr. Anderson might nonetheless have perceived unfairness. After all, "anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis": Morris at para. 1. In short, Mr. Anderson's moral blameworthiness is mitigated to some extent by his mental health vulnerabilities, substance abuse, and educational and economic disadvantages: see Morris at para. 179.
Blending the duality of proportionality
41Gun crime plagues the City of Hamilton. As a member of this community, I am attuned to both the local realities and the public's growing concern: see R. v. Lacasse, 2015 SCC 64 at para. 48. The persistent presence of firearms and related offences has heightened public fear. The statistics filed by the Crown confirm that this fear is grounded in the lived experience of this community.
42The frequency of gun crime is not an aggravating factor. However, it does raise the need for denunciation and general deterrence: Lacasse at para. 90; R. v. Lanktree, 2024 ONCA 506 at para. 12. I find it imperative that this court convey to the community that the illegal possession of firearms will not be tolerated—especially in public spaces; see also R. v. Beauparlant, 2024 ONSC 1655 at para. 73.
43Mr. Anderson has faced disadvantage, much of it imposed through systemic factors beyond his control. People who face such disadvantage find themselves behind the eight-ball, struggling to keep pace with peers who enjoyed a more privileged upbringing. Still, to completely discount Mr. Anderson's moral blameworthiness on account of that disadvantage would overlook his moral agency and free will. While people in Mr. Anderson's position might be prone to involvement in the criminal justice system, these offences well exceeded mere involvement in crime. Mr. Anderson made a deliberate decision to arm himself with a loaded, concealed handgun: see Morris at paras. 101, 153. There is no suggestion that this decision was driven by coercion or negative peer influence. Though still a young man, he was nearly 30 years old at the time of the offence. I would not characterize his actions as youthful indiscretion. There was no good reason—real or perceived—for him to possess a loaded firearm in public that night. He enjoyed no inherent right to be in the pub, and in fact his release order prohibited him from being there altogether at that time.
44There are also factors that elevate Mr. Anderson's moral culpability and degree of responsibility. I have already highlighted Mr. Anderson's repeated decisions that increased his risk to public safety. His possession of the handgun was not momentary; the only reasonable conclusion is that he possessed it throughout his time in the pub and during his persistent confrontations with the bouncer.
45Furthermore, Mr. Anderson has a significant criminal record. While his longest custodial term so far was for six months less a day, the nature of the offending demonstrates his enduring risk to public safety. Mr. Anderson has received sentences that included community supervision, which is geared toward an offender's rehabilitation and reintegration into society. Those sentences have been ineffective at curbing Mr. Anderson's criminogenic behaviour. His continued offending increases his moral blameworthiness: R. v. Gilmore, 2025 ONCA 517 at para. 40. "An extensive criminal record suggests that an individual is more morally blameworthy because they have previously been sanctioned yet remain undeterred and unwilling or unable to rehabilitate": para. 44.
46During his allocution, Mr. Anderson recognized that actions speak louder than words and talked about laying a groundwork for those actions. I took Mr. Anderson to likely be referring to the medication that he has been taking and the programming that he completed in jail.[11] I commend Mr. Anderson for trying to put himself in a better position to succeed upon his eventual release. But I am not satisfied that Mr. Anderson has insight into his offending behaviour. He does not take accountability for the offence. He does not show remorse. None of these points are aggravating. Mr. Anderson is entitled to maintain his innocence. But the absence of insight, accountability, and remorse dampens his prospects of rehabilitation: see R. v. Thompson, 2025 ONCA 254 at para. 11; Morris at para. 159.[12] The failure to take responsibility for criminal conduct can render a lenient sentence inappropriate: Morris at para. 160. By contrast, Mr. Anderson's history and escalating conduct make specific deterrence a pressing concern.
47The law permits me to impose a sentence that gives less weight to specific deterrence and greater weight to Mr. Anderson's rehabilitation: Morris at paras. 79, 81. However, in all the circumstances, I choose to prioritize specific deterrence, general deterrence, and denunciation, without losing sight of Mr. Anderson's rehabilitative potential. While the social context evidence diminishes Mr. Anderson's moral blameworthiness, it does not do so significantly; see e.g., R. v. Lowe, 2025 ONCA 475 at paras. 12-14. And as O'Marra J. held in R. v. Husbands, 2019 ONSC 6824 at para. 135, aff'd 2024 ONCA 115 at para. 77: "There must be a significant aspect of deterrence to those who would carry concealed handguns in any public place whatever the circumstances in which they came to possess and carry the gun. The potential for death, severe injury and mayhem is self-evident". Proportionality guards against excessive punishment driven by denunciation or deterrence, but it does not displace the need to protect the public: Gilmore at para. 36; R. v. K.R.J., 2016 SCC 31 at para. 33.
Quantum Analysis
48I must remember the purpose of sentencing, honour the fundamental principle of proportionality, apply the sentencing principles, and balance the aggravating, mitigating, and collateral factors. This complete analysis leads me to conclude that the Crown's proposed global sentence of four-and-a-half years is fit and appropriate. The offence for possessing a loaded handgun merits a four-year term. The breach of the weapons prohibition order merits a six-month consecutive term.
49I start with the sentencing range identified in Morris. While the Court ultimately imposed a sentence of two years less one day, the Court also recognized that the trial judge could have reasonably imposed a penitentiary sentence of three years. Mr. Anderson deserves a harsher sentence by every metric. Mr. Morris was a first offender; Mr. Anderson has a prior youth and criminal record with over 30 entries. Mr. Morris was not encumbered by court orders; Mr. Anderson was breaching probation and release orders. Mr. Morris was almost 23 at the time of the offences; Mr. Anderson was almost 30. The factual circumstances of Mr. Anderson's crimes, in my assessment, are also more aggravating than those in the case of Mr. Morris.
50Both parties agree that the most persuasive cases in the jurisprudence would be those that applied the Ontario Court of Appeal's seminal decision in Morris and were rendered after Parliament increased the maximum sentence for the s. 95 offence. I agree, although cases that do not meet those two criteria remain helpful (and sometimes binding, as with the Morris decision).
51The cases provided by the Crown support the imposition of a four-year sentence for the s. 95 offence. R. v. Nur, 2013 ONCA 677, aff'd 2015 SCC 15 involved a 19-year-old first offender born in Somalia who brought a loaded, prohibited firearm to a community centre and threw it under a car while running from the police. The offender and his family were found to be convention refugees. Both appellate courts upheld the sentence of three years and four months (40 months of pre-sentence custody).[13] Writing for the Court of Appeal, Doherty J.A. held that offenders like Mr. Anderson who engage in truly criminal conduct should receive exemplary sentences that emphasize deterrence and denunciation, even absent a statutory minimum: para. 206; see also R. v. Francis, 2025 ONCJ 21 at para. 53.
52Other relevant cases include the following:
R. v. Mahamet-Zene, 2018 ONSC 1050: the sentencing judge imposed 42 months on the s. 95 offence (less credit for harsh bail conditions). The offender was 24 years old and had no prior criminal record. He was born in Chad and immigrated to Canada with his family at a young age. The judge found the offender to have generally favourable prospects for rehabilitation but also found there to be serious aggravating factors.
R. v. Blagrove-Robinson (12 July 2022), CR-21-40000482-0000 (Ont. Sup. Ct.), unreported:[14] the sentencing judge imposed a global five-year sentence for the possession of a loaded handgun, the breach of a weapons prohibition order, and two breaches of a release order. The offender pleaded guilty. He was 22 years old at the time of sentencing. The judge found that he had a difficult background and showed good prospects of rehabilitation.
53The defence highlighted two cases where the sentencing judges applied Morris and allowed the offenders to serve reformatory-length sentences in the community through a conditional sentence order. These cases are distinguishable:
R. v. Francis, 2025 ONCJ 21: the facts in Francis were far less egregious. The offender was compliant with the authorities and did not elevate the danger through his actions, beyond the inherent danger of possessing a loaded handgun. The sentencing judge found that he decided to arm himself because of his own victimization at the hands of gun violence. He had no prior criminal record. His success on bail for 44 months made the judge "very optimistic" about his potential for rehabilitation. The offender expressed remorse for his actions and recognized that he had made "stupid" and "senseless" choices.
R. v. Vanderhyden-Steaman, 2025 ONCJ 22: this case involved numerous mitigating factors not present before me. The offender pleaded guilty and indicated his intention to plead guilty at an early stage. He was 24 years old at the time of the offence. He had no prior criminal record. He had a solid employment history and was currently employed. The sentencing judge recognized the offender's "industriousness", "growing maturity", and strong rehabilitative potential.
54Turning to the breach of a weapons prohibition order, it is common for an offender to receive a one-year consecutive sentence. Imposing a six-month term gives effect to the principles of restraint and totality. A consecutive sentence is appropriate since the breach constitutes a distinct invasion of a protected societal interest: R. v. Claros, 2019 ONCA 626 at para. 51. The breaches of the release and probation orders could have also attracted consecutive sentences, but I will defer to the Crown's request for concurrent terms: see R. v. Wisdom, 2024 ONSC 4047 at para. 36.
55In sum, I am satisfied that a global sentence of four years and six months is appropriate for Mr. Anderson. However, I choose to slightly reduce the global sentence to four years, five months, and eight days. This sentence allows me to impose a further reformatory term that is followed by probation. Probation provides for an extended period of supervision and access to culturally sensitive counselling. The restraint principle favours this approach: Morris at para. 182. As the Court explained at para. 130:
… If the sentencing judge determines that the range of sentence for the particular offence and offender includes a two-year sentence and that probation would assist the offender's rehabilitation, the restraint principle favours imposing a sentence of no more than two years, even if a somewhat longer period of incarceration would also fall within the appropriate range.
56I recognize that the sentence will be significantly longer than any of Mr. Anderson's prior custodial terms. But the nature of Mr. Anderson's criminal record, when compared to the present offences, establishes that the step or jump principle does not apply. This conclusion is implicit in defence counsel's position on sentence.
Disposition
57Count 1, possession of a firearm without a license (s. 91), is stayed on the consent of the parties pursuant to the Kienapple principle.
58Mr. Anderson has been in custody since his arrest on December 16, 2023. From then until July 31, 2025, Mr. Anderson has spent 594 real days in pre-sentence custody, which enhances to 891 days after Summers credit. This amount converts to approximately two years, five months, and nine days.[15]
59Count 5, breach of a weapons prohibition order (s. 117.01), will use 180 days of the pre-sentence custody. The balance of the pre-sentence custody is 711 days. It will be attributed in full on count 2, possession of a loaded restricted firearm without authorization (s. 95). I will also note 180 days of pre-sentence custody concurrently on count 3, breach of the curfew condition of a release order (s. 145(5)), count 4, breach of the no weapons condition of a release order (s. 145(5)), and count 6, breach of the keep the peace and be of good behaviour condition of a probation order (s. 733.1).
60The further jail sentence of two years less one day will be served as follows:
Count 2, possession of a loaded restricted firearm without authorization: two years less one day;
Count 3, breach of the curfew condition of a release order: one day concurrent;
Count 4, breach of the no weapons condition of a release order: one day concurrent;
Count 5, breach of a weapons prohibition order: one day concurrent; and
Count 6: breach of the keep the peace and be of good behaviour condition of a probation order: one day concurrent.
61The pre-sentence custody after Summers credit and the further jail sentence combine for a global sentence of four years, five months, and eight days.
62I impose a two-year term of probation. The order will include a condition that directs the probation officer to enroll Mr. Anderson in culturally appropriate programming to address his substance abuse and mental health challenges.
63Mr. Anderson will provide a sample of his DNA in view of his criminal record and the seriousness of the offences. He will be subject to a s. 109 order for life in all respects. The firearm and ammunition are forfeited. I waive the victim surcharge given the lengthy custodial term.
Released: July 31, 2025
Signed: Justice Davin M.K. Garg
Footnotes
1The submissions on this issue were made on July 17 and 31.
2I have reasoned by analogy to R. v. Morris, 2021 ONCA 680 at para. 170.
3See Exhibit 6 at trial.
4I do not use as aggravating the breach of the weapons prohibition order since it will attract a consecutive sentence.
5Based on representations from counsel, I am treating the one entry on Mr. Anderson's CPIC for assault with a weapon as a conviction for simple assault.
6I rely on defence counsel's calculations, cognizant that they are estimates due to the possibility of human error.
7During partial lock downs, the institution completed "single cell" dayroom times, which allows the inmates from one cell on a unit access to dayroom, shower, and phones on a rotational basis.
8Defence counsel corrected the age from what was reported in the enhanced pre-sentence report.
9Indeed, the enhanced pre-sentence report reads, "Leo's involvement in crime and substance misuse made it difficult for him to be actively involved in [his son's] life as he was before".
10See e.g., Morris at para. 104.
11See Exhibit 5 on sentencing.
12"A refusal to acknowledge, much less take responsibility for, criminal conduct, did not augur well for Mr. Morris's rehabilitative potential and raises real concerns about the risk that he will reoffend".
13See also R. v. Nur, 2011 ONSC 4874 at para. 149.
14The decision is included at Tab 4 of Exhibit 1 on sentencing.
15I used a formula that calculates one year as 365 days and one month as 30.417 days: R. v. Shaikh, 2019 ONCA 895 at footnote 2. I converted the pre-sentence custody in this manner in order to articulate the global sentence. However, to ensure precision, the pre-sentence custody will be officially noted in days.
