ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANUSHAN UTHAYAKUMAR
Before Justice Edward Prutschi
Heard on August 26-28, and September 6, 2024 (TRIAL),
November 27, 2025 (SENTENCING)
Reasons for Judgment on Sentence released on January 19, 2026
Brian McCallion counsel for the Crown
Mitch Engel counsel for the accused Anushan Uthayakumar
1On August 16, 2021, Anushan Uthayakumar was subjected to a sobriety-check traffic stop. While conducting a roadside alcohol screening test (which Mr. Uthayakumar passed), officers were alerted to the presence of marijuana in the vehicle and stated their intention to conduct a Cannabis Control Act (“CCA”) search. Instead of submitting to the search, Mr. Uthayakumar grabbed a gym bag from the back seat of his vehicle and fled into traffic on foot. He struck the side of a passing minivan delaying him enough for police to catch up. Mr. Uthayakumar was tackled to the ground and a loaded firearm was found inside a satchel within the gym bag he had attempted to flee with.
2A trial was held on August 26-28, 2024, in which the issue raised was whether Mr. Uthayakumar had been racially profiled during the investigation of his vehicle at a hotel parking lot that ultimately led to the traffic stop. The legality of the traffic stop and the CCA search were also contested. On September 6, 2024, I dismissed all the defence applications and Mr. Uthayakumar was found guilty of the following offences:
(i) Careless storage of a firearm [s. 86(3)];
(ii) Possession of a weapon dangerous to the public peace [s. 88(2)];
(iii) Unauthorized possession of a firearm [s. 91(3)];
(iv) Occupying a motor vehicle knowing that a firearm was present [s. 94(2)];
(v) Possession of a loaded restricted firearm [s. 95(2)]; and
(vi) Obstructing a peace officer [s. 129(a)].
3The detailed facts of the case along with my reasons for judgment on the various Charter challenges are set out in R. v. Uthayakumar, 2024 ONCJ 419. Following those reasons, sentencing was adjourned to allow for the creation of both a traditional pre-sentence report (“PSR”), and an enhanced pre-sentence report (“EPSR”) that would include not only general background on Mr. Uthayakumar but would provide social context evidence outlining how Mr. Uthayakumar’s experiences as a Brown man influenced his involvement in the criminal justice system.
4Through no fault of Mr. Uthayakumar, the EPSR was delayed for many months as the Sentencing and Parole Project (“SPP”) worked through an extraordinary backlog. For this reason, we were only able to proceed with his sentencing in November of 2025.
Position of the parties
5The Crown attorney seeks a global sentence of 36 months jail along with a lifetime section 109 firearms prohibition and DNA order.
6Mr. Uthayakumar takes no issue with the ancillary orders but urges me to permit him to serve his sentence in the community under strict conditions imposed pursuant to a conditional sentence order (CSO) of two years less one day.
Principles of sentencing
7The aim of any criminal sentence is to protect the public while contributing to respect for the law in a manner that helps to maintain a just, peaceful, and safe society. This goal is at the core of the sentencing principles outlined in s. 718 of the Criminal Code.
8A sentencing judge attempts to achieve this goal by imposing just sanctions which balance and address the specific sentencing principles including denunciation, both general and specific deterrence, and rehabilitation. A well-crafted sentence will promote a sense of responsibility in the offender and an acknowledgement of the harm they have caused to the community.
9The overarching goal of a fit sentence is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. In the case of first offenders, and particularly for youthful offenders, the principle of restraint demands that I carefully consider all options for a non-custodial sentence before turning to jail. Even where jail is called for, the sentence should be as short as possible to address the needs of denunciation and deterrence while leaving the doorway to rehabilitation open as widely as possible. For these reasons, sentencing is necessarily a highly individualized process, and each sentence must be customized and tailored to the circumstances of the specific offender and their specific offences.
The PSR
10The PSR outlined some of the challenges Mr. Uthayakumar has faced throughout his life. These include financial instability and parental abuse that were expanded upon in much more detail in the EPSR.
11As Mr. Uthayakumar continues to protest his innocence, there was some understandable tension between himself and the author when he was asked to address the offences themselves. Mr. Uthayakumar reiterated the position he presented at trial, that he was racially profiled and discriminated against by the police. He asserted that, “If I did anything I’d do my time” and noted that “I was set up”. At no time did Mr. Uthayakumar seek to explain who “set him up” or why such a ‘set up’ targeted him.
12While an offender is not to be penalized for disagreement with the court’s factual trial findings, it is concerning to hear Mr. Uthayakumar continue to deny responsibility for the firearm in the face of the unequivocal video evidence of him grabbing the gun bag and attempting to flee with it.
13It is very difficult to reconcile this position with the words Mr. Uthayakumar spoke in court during his allocution. In those moments he appeared collected and mature as he apologized to “everyone in this courtroom for putting myself in this situation”. He indicated that he had learned a great deal about the “need to make right choices” and asserted that he had “grown and matured”. He spoke of the violence in his neighbourhood but acknowledged that he had failed himself and his family. He stated that he was “very remorseful for my decisions” and noted that he had “made one of the worst decisions of my life”.
14This level of insight and remorse stand in direct contrast to the deflection, limited acceptance of responsibility, and “heavy rationalization” described by the PSR author. Though the author found Mr. Uthayakumar to be “an insightful and intelligent young man who appears to be maturing”, he also noted that Mr. Uthayakumar took no responsibility for the offences and expressed no remorse for the risk he exposed the public to. The author therefore concluded that Mr. Uthayakumar was not amenable to community supervision.
Social Context and the EPSR
15The degree of responsibility of an offender requires a consideration of the person’s moral blameworthiness. This is necessarily impacted by unique factors in an offender’s background, life experiences, and personal circumstances.
16In the case of Mr. Uthayakumar, I am assisted in understanding his personal circumstances by the completion of the EPSR. Such social context evidence assists me as a sentencing judge in my assessment of Mr. Uthayakumar’s degree of responsibility for these offences. It also helps me to appropriately balance the various principles and objectives of sentencing by properly framing them within the broader societal backdrop experienced by Brown persons in Canada.
17Mr. Uthayakumar is not required to demonstrate that systemic racism was the direct cause of his criminal conduct. His upbringing as a Brown Canadian is to be situated within the broader social context of a society where, sadly, there remain systemic hurdles that persons like Mr. Uthayakumar must overcome in order to succeed.
18Mr. Uthayakumar identified as a heterosexual Christian male born in Toronto but whose family originally hail from Sri Lanka. His self-described religion is of some passing interest only because a substantial portion of the racial profiling argument presented at the trial focussed on alleged targeting of Mr. Uthayakumar for being of the Muslim faith. This argument was directed at the perspective of the investigating police officers, and it would therefore be their subjective belief that was at issue. For these reasons, I pay no heed to the disconnect between the argument advanced at trial and Mr. Uthayakumar’s self-identified religion as disclosed to the EPSR author.
19Mr. Uthayakumar reported a difficult childhood characterized by financial hardship and a physically abusive father. He was raised in a subsidized housing apartment in a Scarborough neighbourhood populated largely by racialized Canadians and recent immigrants. Violent crime, including gun violence, was a prominent feature of this community leaving Mr. Uthayakumar to become normalized to constant concerns about his safety. As a child, he reported witnessing gang conflicts and was himself “beaten up”, “jumped”, and “robbed” at gunpoint during his teenaged years.
20He was frequently kicked out of the house by his father and experienced sporadic periods of homelessness. In his interactions with police in the community, Mr. Uthayakumar felt he was treated as “guilty by association” and felt he was frequently racially profiled for unlawful traffic stops and searches.
21He fell into significant debt at a young age after being involved in a car accident driving his sister’s car. To avoid insurance premium increases, Mr. Uthayakumar’s father reported that Mr. Uthayakumar stole the car which resulted in Mr. Uthayakumar being sued as a teenager and left with a crushing $12,000 debt.
22Though Mr. Uthayakumar was bullied at school and often went hungry over lunch due the family’s poverty, he achieved extraordinary academic success. He had hoped to pursue a career in law but now feels that dream out of reach in light of his criminal record for these convictions. Although it has been very difficult obtaining employment while saddled with a criminal record and subjected to strict release conditions, Mr. Uthayakumar should be applauded for completing the Hammer Heads pre-apprenticeship program which supports marginalized youth from low-income communities to gain employment in the skilled trades.
23A representative of the Hammer Heads program was present in court during Mr. Uthayakumar’s sentencing hearing to offer support and encouragement. It is clear that Mr. Uthayakumar committed himself fully to the program and has set himself up for future success in the sheet metal industry. This bodes very well for Mr. Uthayakumar’s eventual rehabilitation and reintegration into society.
24The EPSR author provided an extensive overview of Sri Lankan culture, tying the domineering and abusive parenting of Mr. Uthayakumar’s father to a legacy of historical colonialism and slavery that afflicted Sri Lanka going as far back as the 16th century. The Crown took strong exception to these tenuous conclusions, noting that the source materials relied upon by the EPSR author appeared often to have been mischaracterized or ideologically twisted.
25It is beyond the scope of my sentencing reasons to critique the author’s understanding of historical scholarship relating to Sri Lankan labour and cultural practices. What I am prepared to accept is that Mr. Uthayakumar’s upbringing bears the hallmarks of many new immigrant communities to Canada. While Canada undoubtedly offers new arrivals tremendous opportunity, these opportunities are not always evenly distributed or easily captured. Poverty is often found in close proximity to violence and Mr. Uthayakumar grew up battling against both.
Eligibility for a CSO
26Section 742.1 of the Criminal Code governs the availability of conditional sentences. None of the offences Mr. Uthayakumar has been found guilty of are statutorily excluded from conditional sentence consideration.
27To be eligible for a conditional sentence I must first be satisfied that the appropriate sentence in these specific circumstances is less than two years imprisonment. If I reach that conclusion, I must further be satisfied that a conditional sentence does not endanger the safety of the community and that it is consistent with the fundamental principles of sentencing discussed earlier.
28It is well established that even the principles of denunciation and general deterrence can be adequately addressed by a suitably punitive conditional sentence in the right circumstances.
Factors to be considered on sentencing
A. The spectrum of firearms possession
29The possession of prohibited and restricted firearms spans a broad range of illegal activity that attract different levels of moral blameworthiness depending on where one falls along that spectrum. At the low end of the range is the lawful licenced firearm owner who stores an unloaded weapon together with readily accessible ammunition. This offender is guilty of something very close to a regulatory infraction that might attract little or no jail sentence. At the other end of the spectrum is the offender who chooses to arm themselves with a handgun because it is a necessary tool of a violent criminal trade such as drug trafficking. This offender’s conduct should attract extreme sanctions that include lengthy jail terms even for first offenders.
30Mr. Uthayakumar lies between these two extremes. He had no authorization or license for the handgun. The weapon was loaded and located in a gym bag in the back seat of the car he was driving. Although not directly on his person, it was readily accessible and indeed was grabbed with ease from the car as Mr. Uthayakumar sought to flee with the bag when police initiated a search.
31Mere possession of a loaded firearm on a public roadway introduces high risk to every member of the public. The attempt to flee with the firearm into traffic massively exacerbated that risk, highlighting a demonstrated intention to retain possession of the gun. The risk to the public was high. The risk to the officers, engaged in a lawful traffic stop who had to tackle Mr. Uthayakumar on a live roadway, was exponentially higher.
32There is nothing to suggest that Mr. Uthayakumar was involved in the drug trade, gang activity, or any other criminal conduct. His reasons for possessing the gun remain a mystery. Collectively these facts place Mr. Uthayakumar towards the upper-middle range of the firearms possession spectrum.
B. The appropriate sentencing range
33Although the Supreme Court of Canada struck down the mandatory minimum penalties that would otherwise have applied in this case, it is sometimes forgotten that the Court still upheld a significant penitentiary jail sentence in the precedent-setting case of Mr. Nur who was a 19-year-old first offender in possession of a loaded handgun unconnected to any other criminality.1
34I have reviewed a large sampling of the recent caselaw in firearms possession cases with a view to trying to tease out the established range. Several of the cases can be distinguished from Mr. Uthayakumar’s circumstances by virtue of prior criminal records, poor rehabilitative prospects, or the existence of other criminality associated with the gun possession. All of them however suggest that possession of a loaded firearm calls for a strong denunciatory sentence that would generally be outside of the conditional sentence range. There are however some outliers in which unique circumstances have seen courts conclude that a reformatory range is appropriate, opening the door to the imposition of conditional sentences in rare circumstances.
35The following cases were particularly instructive in helping to fix the correct sentencing range and focus the debate around the appropriateness of conditional sentences in firearms possession cases.
R. v. Marsan, 2020 ONCJ 638
36Mr. Marsan was only 20 years old with no prior criminal record and of good character at the time of his arrest for possession of a loaded firearm. He entered a guilty plea at a very early stage and did exceptionally well on bail, complying with restrictive conditions and completing a six-week addiction program plus its follow up. He also performed 107 hours of volunteer work.
37He had possessed the gun for protection after having been robbed at gunpoint when he was 16. Later he suffered another violent attack that left with him with a head and shoulder injury. These two events contributed to PTSD that was a factor in his decision to arm himself. Mr. Marsan’s gun was found in a satchel in the trunk of his car which places it somewhat further from immediate reach than the backseat where Mr. Uthayakumar’s gun was located.
38Justice Pringle concluded that possession of a firearm for protection neither excuses nor mitigates the seriousness at the core of this offence. She noted at paragraph 21 that,
The moral culpability in committing this offence remains high, no matter the reason for committing it. The gun was loaded, meaning Mr. Marsan was prepared to use it. There is no ‘safe’ possession of illegal firearms on the streets of Toronto. It is a most serious offence.
39Justice Pringle conducted an extensive review of the relevant caselaw at paragraph 29 of her decision and I have benefited greatly from these efforts. After reviewing numerous other appellate and SCJ authorities, she concluded that the range of sentence for gun possession by a first offender is between 3 and 5 years where the possession is connected to other criminal activity. Citing the ONCA decision in R. v. Smickle, 2014 ONCA 49, she further concluded that gun possession unconnected to other criminal activity still calls for a jail sentence near the maximum reformatory term.
40Having found the range encompasses sentences within the CSO target, Justice Pringle went on to consider the appropriateness of a community sentence. Though a CSO would not endanger the safety of the community, she found that it was simply inconsistent with the fundamental purposes and principles of sentencing as such a sentence for “driving around Toronto armed with a loaded illegal firearm” is incapable of satisfying the objectives of denunciation and deterrence. The court instead imposed an 18-month reformatory jail sentence.
R. v. Mohiadin, 2021 ONCA 122
41Though the ONCA treated this sentence appeal as a fresh hearing, they nevertheless imposed a 3-year jail sentence on a 19-year-old first offender. Mr. Mohiadin had not entered a guilty plea but his trial, much like Mr. Uthayakumar’s, was focused solely on a Charter application with the balance of the case conceded.
42Mr. Mohiadin’s brother had died of gun violence, and this motivated him to possess a gun himself. His prospects for rehabilitation were considered excellent.
R. v. Mesinele, 2023 ONCJ 28
43Mr. Mesinele was also 19 years old with no prior criminal history when he was found guilty after a Charter focused trial. Justice Felix found Mr. Mesinele to be genuinely remorseful and was clearly impressed by the meaningful comments delivered by the young man during his allocution. Mr. Mesinele had been the victim of a stabbing though this was not cited as a direct catalyst for his decision to acquire a gun.
44In addressing the application of social context evidence for Black offenders, Justice Felix noted at paragraph 31 that racialized communities – like the broader general Ontario community – expect courts to meaningfully denounce and deter the possession of illegal firearms in the hopes that such actions might lead to improved safety on their streets.
45Justice Felix highlighted the “epidemic of firearm-related crime in the GTA” in concluding that sentences for the possession of illegal firearms should be increasing. He noted his own comments in R. v. Rudder, 2022 ONCJ 367, where he described the public as being understandably “fed up” with gun crime.
46After a thorough review of the caselaw he concluded that the appropriate range of sentence in such circumstances was 3 to 3.5 years though he adjusted that downwards to two years and ten months after considering mitigating factors.
47This sentence clearly put a CSO outside the permissible range though Justice Felix went further and noted at paragraph 82 that a conditional sentence would not be consistent with the principles of sentencing: “Bluntly, a conditional sentence would not provide sufficient denunciation to those who would voluntarily possess loaded illegal handguns in our society.”
R. v. Beharry, 2022 ONSC 4370
48Mr. Beharry was 32 years old with no previous criminal record when he was sentenced for carrying a loaded handgun in a fanny pack on the back seat of his car. He possessed the gun for personal protection arising out of his experiences growing up and living in a neighbourhood frequented by gun violence.
49Justice Schreck, noting the seriousness of gun possession, stated that the “motive for possessing the firearm has only a limited mitigating effect” (at paragraph 23) though he did distinguish such cases from those where offenders possess a gun to further another criminal purpose (at paragraph 24).
50Like Mr. Uthayakumar, Mr. Beharry had the benefit of an EPSR which set out his personal historical experiences against the backdrop of broader social context evidence for Black Canadians. Mr. Beharry grew up fatherless and in poverty. He never completed his education and had dim employment prospects. He lived in an area plagued by crime and drug use and grew up with having frequent negative experiences with police.
51Justice Schreck noted that none of these factors excused Mr. Beharry’s bad choices but, “consideration of his choices in the context of his background leads to the conclusion that his degree of responsibility is less than it would have been had his background been different” (at paragraph 28).
52In determining the appropriate sentencing range, Justice Schreck cited the well-established 3-5 year term for situations where gun possession is associated to other criminal activity such as drug trafficking. He however noted that lower sentences in the upper reformatory or lower penitentiary range could apply to mid-spectrum gun possession “where the firearm is not possessed in connection with other criminal activity” (at paragraph 31). After considering the aggravating and mitigating factors, Justice Schreck concluded that a two-year sentence was appropriate for Mr. Beharry. He therefore went on to consider if a conditional sentence could adequately address the relevant sentencing principles.
53Justice Schrek provided an important reminder to sentencing judges when he noted at paragraph 43 that,
All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing set out in s. 718 of the Code, which is to “protect society”. Arguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect.
54With this in mind, after balancing the aggravating and mitigating factors, Justice Schreck concluded that a conditional sentence would most appropriately achieve that over-arching goal of protecting society.
R. v. Desmond-Robinson, 2022 ONCA 369
55Mr. Desmond-Robinson was convicted after a trial of various firearms and drug offences. The firearm was a sawed-off rifle located in a backpack found under a pile of clothing in his bedroom closet. The ammunition for the weapon was nearby in a jacket hanging in the same closet. These circumstances obviously differ from the more aggravating situation of Mr. Uthayakumar’s in which a loaded handgun was found outside of the home on a public street during a traffic stop.
56The trial judge credited Mr. Desmond-Robinson with 9 months of pre-sentence custody to reflect time he had spent while on a highly restrictive bail. The court then concluded that a further sentence of 18 months imprisonment was appropriate, which reflected a total sentence of 27 months.
57While the trial judge acknowledged that a conditional sentence was capable of providing general deterrence and denunciation, she noted that a sentence served in the community necessarily “provides less denunciation and general deterrence than a sentence of equal length served in custody. For this reason, I view a conditional sentence as outside of the range affirmed by the Court of Appeal. This is particularly true in Toronto in late 2019 and early 2020, after a year when the city has been racked by gun violence.”
58The ONCA interpreted those comments as a finding by the trial judge that the appellate court had ruled “the seriousness of gun offences precludes resort to a conditional sentence”. The Court rejected that interpretation, noting that no such pronouncement had ever been made, and thus found the trial judge to have erred in principle.2
59The ONCA then conducted its own review of Mr. Desmond-Robinson’s circumstances to craft a fit sentence. He was a very young first-offender who had undertaken significant positive rehabilitative steps while on an extended strict bail. Systemic racism played a role in his upbringing and served to “diminish his moral culpability”. Five years had passed since the time of the offence during which time Mr. Desmond-Robinson had completed a culinary program and secured work as a chef. He had become a father in the interim and not been charged with any further offences.
60Given these positive circumstances, the ONCA imposed a CSO of two years less a day. The ONCA does not explicitly reference whether its own sentence accounts, as the trial judge’s did, for the 9 months credit arising from time spent on a restrictive bail. If bail credit was factored into the totality of the sentence, I have trouble reconciling this decision of the ONCA with its own subsequent ruling in R. v. Johnston3.
61In Johnston the court followed the Supreme Court’s direction in R. v. Fice4, noting that a conditional sentence cannot become available solely because of time credited for pre-trial custody and strict bail conditions.5 Once the conclusion is reached that the fit sentence is two years or more, a CSO is a statutorily prohibited sentencing option. The trial judge in her sentencing reasons determined that a conditional sentence was “outside of the range affirmed by the Court of Appeal”. The Court of Appeal interpreted this statement to mean that the trial judge wrongly viewed firearms offences as ineligible for conditional sentences even where the fit sentence was found to be under two years and thus statutorily eligible for a CSO.
62The more fundamental impediment to a CSO in the case of Mr. Desmond-Robinson was that the fit sentence was determined to be more than two years. The trial judge determined the fit sentence to be 27 months jail (18 months left to serve after accounting for 9 months of restrictive pre-sentence bail). It is this fit sentence length – and not any categorial range set by the Court of Appeal - that took a conditional sentence off the table for Mr. Desmond-Robinson.
R. v. Lewis, 2022 ONSC 1260
63Mr. Lewis entered guilty pleas to possession of a loaded prohibited firearm and possession of cocaine. The weapon and drugs were found inside a locked safe in Mr. Lewis’ home and were seized pursuant to a search warrant. The court noted, “[a]part from the inherent seriousness of the offence, there are no particularly aggravating circumstances present. Mr. Lewis was not found with the gun on his person. He did not possess it, at the time of the offence, in a public location.”6 As was the case in Desmond-Robinson, this is an important mitigating distinction relative to Mr. Uthayakumar’s more serious case in which the firearm was out on a public street within easy access of the driver.
64Mr. Lewis was only 22 years old at the time of offences. He spent 7 months in pre-sentence custody before being released on a restrictive bail. Following his release he undertook a remarkable transformation. Unable to obtain employment, he started his own snow-clearing business which proved incredibly successful. In this regard, Mr. Lewis’ situation mimics that of Mr. Uthayakumar’s who has made positive use of his time on bail.
65Although there was no direct nexus made between Mr. Lewis’ history as young Black man and his offences, the sentencing judge took notice of the Morris factors and recognized the impact of systemic racism.
66The court concluded that a 2-year sentence was appropriate with various deductions for pre-sentence custody and time spent on restrictive bail conditions. The balance of the sentence was subject to a 6-month conditional sentence.
R. v. Moses, 2022 ONSC 332
67As in Desmond-Robinson and Lewis, the loaded firearm in the case of Mr. Moses was unearthed as part of a search warrant executed at a private residence. Mr. Moses was found guilty after a trial.
68Mr. Moses grew up outside of Canada until his arrival as a teenager. He faced significant financial hardship as a young man but was able to obtain steady employment at various jobs throughout his life. Though he was a permanent resident by the time of the offences, he never obtained Canadian citizenship, and his conviction and sentence were likely to have serious collateral immigration consequences.
69The court noted Mr. Moses’ full-time employment, dedication as a father, and his role as the sole source of financial support for his family. The court also referenced that Mr. Moses “did not possess the firearm in a public place” – a key mitigating factor that is distinguished from the facts of Mr. Uthayakumar’s case. This led the court to impose a CSO of two years less one day.
R. v. Francis, 2025 ONCJ 21
70Mr. Uthayakumar arguably placed his greatest reliance on my own decision in the recent Francis case. There are certainly some substantial similarities between the two cases. Mr. Francis was found guilty of possessing a loaded firearm after a focussed trial in which the sole issue was a claim of racial profiling.
71In Mr. Francis’ case, the gun was located in his jacket pocket draped over the driver’s seat when he was pulled over at a RIDE spot check. Other concerning items such as a magazine loader, ammunition, hardened knuckles and a folding knife were found in the subsequent search of the vehicle. Though not quite as young as Mr. Uthayakumar, Mr. Francis was nonetheless a youthful racialized first offender who benefited from an extended time on a successful release order while awaiting the preparation of a long-delayed EPSR.
72After reviewing many of the same precedents brought to my attention here, I concluded that the appropriate sentence was in the 2-year range and that Mr. Francis be sentenced to a maximal CSO enforced by GPS monitoring, followed by a period of probation.
73Despite the similarities noted above, there are some important distinctions between Mr. Francis’ circumstances and those of Mr. Uthayakumar. Following his trial, Mr. Francis freely and openly took responsibility for his actions and displayed high levels of insight, maturity and remorse. He expressed his regret both to the authors of the sentencing reports and during his allocution in court. I have already highlighted how Mr. Uthayakumar’s statements at the sentencing hearing stand in irreconcilable conflict with his statements during the PSR/EPSR-phase of these proceedings.
74Most significantly, Mr. Uthayakumar’s decision to grab the gun as he fled the traffic stop introduced an extraordinarily aggravating feature into his case that distinguishes it from Francis.
Summary of the caselaw
75With this comprehensive review in mind, I acknowledge that there is a small body of caselaw in which carefully crafted conditional sentences have been imposed to address gun possession cases where substantially mitigating circumstances exist.7 These stand in contrast to a larger collection of precedent which emphasizes the necessity of deterrence and denunciation leading to a conclusion that a penitentiary sentence is required. Suffice it to say, the job of a sentencing judge in such circumstances is highly complex and both approaches find support in well-reasoned decisions by courts at various levels across Ontario.
76The sentencing range therefore for a first offender possessing a gun unconnected to other criminality spans a maximum reformatory term of two years less one day, to a low-end penitentiary sentence of up to 3.5 years in jail. I turn now to outlining the specific circumstances facing Mr. Uthayakumar.
C. Mitigating Factors
77Many of the cases in which serious consideration is given to the possibility of a conditional sentence involve very youthful first offenders who have entered a guilty plea. Mr. Uthayakumar’s situation bears both similarities and differences to this archetype.
78Importantly, Mr. Uthayakumar has no prior criminal record. Though he did not enter a guilty plea, his trial proceeded in a focussed manner with the issues narrowed solely to address alleged Charter violations. His choice to exercise his right to a trial cannot be held against him, though it does limit the mitigation impact that is associated with an early guilty plea.
79The term ‘youthful’ is difficult to quantify with precision. It is well established that the immaturity of a youthful offender bears some relevance on their moral culpability, and this is most commonly seen in offenders in their late teenaged years or early twenties. Mr. Uthayakumar was 23 years old at the time of his offences placing him solidly within the upper range of what should still be fairly described as youthful.
80He has the potential for a fulsome life ahead of him that today appears to be on a very positive trajectory. Following his conviction, he demonstrated extraordinary maturity in making very positive use of his extended time on bail. Recognizing that his dreams of a legal career would likely be blocked by his criminal conviction, he pivoted to seek work in the skilled trades. He successfully completed the challenging Hammer Heads program and has earned the support and admiration of the organization as he launches a career working with sheet metal.
81The exceptional backlog at the Sentencing and Parole Project has led to unconscionable delays in obtaining the kinds of EPSR reports that can be of great assistance to sentencing courts. These delays force offenders to remain in limbo for many months or even years at a time. They disconnect the lessons of sentencing from the criminal catalyst. While some offenders will coast along or even fall into further criminality, Mr. Uthayakumar made productive use of this time during which he repaired his relationship with his family and advanced his career prospects by learning a trade and earning employment.
82Mr. Uthayakumar’s shifting acknowledgement of responsibility poses a challenge for how to weigh this factor in considering a just sentence. An offender is not to be penalized for exercising their right to a trial. Though I ultimately disagreed with his submissions, Mr. Uthayakumar had a legal basis for pursuing the Charter challenges he advanced.
83Similarly, Mr. Uthayakumar is not to be penalized for maintaining his innocence even in the face of my ruling. This position does however rob him of any benefit that would accrue from fully accepting responsibility and demonstrating insight into his criminal conduct. This choice clearly had an impact on the author of the PSR who was unable to recommend community supervision in such circumstances. The author of the EPSR simply didn’t engage with the issue at all noting at the outset that, “[t]his report will not discuss Anushan’s [Uthayakumar] involvement in the offence as he maintains his innocence.”
84As I have discussed previously in these reasons, Mr. Uthayakumar took a noticeably different tone and approach during his allocution on the day of his sentencing submissions. One could read that contrast as an opportunistic gambit to put himself in the best position when faced with a lengthy jail term. I however instead see it as an indication of Mr. Uthayakumar’s continuously developing maturity. He is not the same person he was when he fled with that gun in 2021. He is not even precisely the same person he was when he continued to deny responsibility to the PSR author in late 2024 or the EPSR author in the summer of 2025.
85While I cannot naively accept that Mr. Uthayakumar has fully and completely come to recognize and accept responsibility for his dangerous actions, clearly the passage of time, the sentencing process itself, and the looming threat of jail, have had a positive clarifying impact on him.
D. Aggravating Factors
86The proliferation of firearms in our society is one of the most disturbing and concerning criminal justice trends of the last decade. Gun violence has penetrated every major city in Canada impacting not just criminals who violently ply their trade on the streets of our neighborhoods, but entirely innocent bystanders who have the misfortune to become collateral statistics of such violence.
87At the forefront of combatting this trend are the rank-and-file police officers who are exposed to extraordinary danger in every confrontation and traffic stop where they interact with someone who happens to be armed with an illegal handgun.
88Even without a connection to other criminality, the mere possession of a loaded illegal firearm poses extreme risk and constitutes a serious crime in and of itself. To have a loaded handgun in arm’s reach while driving a car in public demonstrates a willingness to use that gun should the situation deteriorate.
89To grab that gun and attempt to flee when being searched by police demonstrates a clear commitment to avoid responsibility for the criminal conduct while preserving access to the gun in the future. It forced police to engage in a brief but dangerous pursuit into a live lane of traffic. This is highly aggravating criminal conduct that demands strong sanction even for a first offender.
The fit sentence for Mr. Uthayakumar
90This attempt to escape and preserve a loaded firearm brought onto a public roadway places Mr. Uthayakumar’s conduct necessarily outside of the reformatory sentencing range. At its worst, the attempted flight indicates Mr. Uthayakumar’s commitment to retaining possession of the gun for use in future criminal endeavours. The least aggravating interpretation of this terrible choice is that Mr. Uthayakumar panicked and, in a bid to avoid criminal responsibility, grabbed the gun in the hopes of abandoning it later.
91In giving Mr. Uthayakumar, the benefit of the legal doubt, I adopt this least aggravating reading. This still leads me to conclude that such outrageous conduct demands a level of deterrence and denunciation that can only be achieved by a penitentiary sentence. A CSO is therefore not statutorily available, and I decline to impose one.
92Speaking directly to you Mr. Uthayakumar, I recognize that this sentence will interrupt the very positive trajectory you have started down. What you’ve accomplished with the Hammer Head program while on a restrictive bail is very impressive and to your great credit. Jail does not have to derail this progress if you don’t let it. If you treat this sentence as merely a pause in your upward trajectory, there is every reason to believe that employment opportunities and family support will still be there for you when you are released from jail. Although I have found that a jail sentence is the only fit and reasonable penalty in your particular circumstances, I also believe you are an excellent candidate for early parole that would permit you to pick up where you left off in improving the lives of yourself and your family.
93With that in mind, I find that the shortest appropriate jail sentence in your specific circumstances is one of 30 months. From that, I deduct 6 months as credit for the over 4 years you have spent successfully navigating a restrictive bail. This leaves 24 months to be served concurrently on the most serious charges which are counts 3 and 6 for possessing a loaded restricted firearm without a license.
94There will be 6-month jail on count 8 for obstructing a peace officer to be served concurrently to the rest of the sentence. Count 1 (careless storage of a firearm), count 2 (possession of a dangerous weapon) and Count 5 (occupying a motor vehicle with a firearm) are conditionally stayed pursuant to the Kienapple principle as these are each offences arising from the identical factual circumstances as the other counts. In summary Mr. Uthayakumar, the total sentence left for you to serve is 24 months imprisonment.
95You are also subject to the following ancillary orders:
Pursuant to s. 109 of the Criminal Code you are prohibited for life from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances.
Possession of a restricted firearm is a secondary designated DNA offence and, despite the absence of any criminal record, the seriousness of this offence and its circumstances satisfies me that it is in the best interests of justice to require you to provide a DNA sample in accordance with s. 487.051(3)(b) of the Criminal Code.
96Finally, the Crown proceeded by indictment on these charges. Mr. Uthayakumar’s custodial sentence will leave him ill-equipped to pay any victim fine surcharge; these are therefore waived.
Released: January 19, 2026
Signed: Justice Edward Prutschi
Footnotes
- R. v. Nur, 2015 SCC 15.
- R. v. Desmons-Robinson, 2022 ONCA 369 at para. 13-14.
- 2023 ONCA 808.
- 2005 SCC 32.
- R. v. Johnston, supra at para. 6.
- R. v. Lewis, 2022 ONSC 1260 at para. 27.
- See for example, R. v. Edwards, 2023 ONCJ 53; R. v. Fagan, 2024 ONSC 2718; R. v. Filian-Jimenez, 2014 ONCA 601; R. v. Hussey-Rodrigues, 2024 ONSC 2671 and; R. v. Stewart, 2024 ONSC 281.