ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
DEJAUN GIBBS
Before Justice P.T. O’Marra
Heard on January 12, 14, September 9, 10, 11, December 1, 16, 2025, and February 26, 2026
Reasons for Judgment released on April 27, 2026
Noor Sohail counsel for the Crown
Amanda Warth counsel for the accused Dejaun Gibbs
A. OVERVIEW
1Mr. Gibbs appears for sentencing following findings of guilt after trial on three counts related to his unlawful possession of a loaded handgun. He also requests a stay of proceedings under s. 24(1) of the Charter, citing his treatment at Maplehurst Correctional Complex during the December 2023 deployment of the Institutional Crisis Intervention Team (ICIT) on Unit 8, which included strip searches of inmates.
2The defence submits that the ICIT deployment and its aftermath violated Mr. Gibbs’ rights under ss. 7, 8, and 12 of the Charter and that a stay is the only adequate remedy. The Crown submits that the application should be dismissed and that any Charter remedy should be provided through a substantial reduction of sentence.
3I find that Mr. Gibbs’ Charter rights under ss. 7, 8, and 12 were infringed. I dismiss the stay application because an alternative remedy is reasonably capable of removing any prejudice that would otherwise be manifested, perpetuated, or aggravated by the continuation of these proceedings; namely, a substantial sentence reduction. In this case, that reduction results in a sentence of time already served.
4In reaching this conclusion, I treat R. v. Whitlock, 2025 ONSC 6006, as highly persuasive on the nature and gravity of the Maplehurst ICIT’s misconduct. However, the remedial posture in this case is materially different from that in Whitlock. The remedy analysis here is closer to R. v. Neverson, 2025 ONSC 7121, where a stay was dismissed because a significant sentence reduction was a fit alternative remedy.
B. THE CIRCUMSTANCES OF THE OFFENCES
5The convictions arise from events on the evening of Saturday, June 18, 2022, around Her nightclub, located at 1325 Eglinton Avenue in Mississauga, in a plaza at the northwest corner of Eglinton Avenue and Dixie Road. Detective Constables Grant and Wegenschimmel were conducting surveillance in the vicinity. The nightclub was notorious for shootings and weapon seizures.
6At approximately midnight, the officers observed Mr. Gibbs exit a red car in the parking lot. They observed that he was wearing a balaclava, a heavy black coat over a hoodie, and a Gucci satchel worn across his body. Mr. Gibbs walked toward the nightclub and met another male.
7The two males proceeded toward the nightclub entrance. They then walked to another vehicle. At that point, Mr. Gibbs removed the balaclava and the heavy black jacket and put on a medical mask. Mr. Gibbs remained in possession of the satchel. They turned back toward the nightclub where security was conducting pat-down searches and checking identification. As they approached the line, both men turned around and walked back toward a row of cars.
8The officers approached in an unmarked SUV. As the officers exited their vehicle, Mr. Gibbs and the other male attempted to flee. The other male jumped into a dark Toyota RAV4 and drove out of the parking space, striking the officers’ SUV. Both officers ran after Mr. Gibbs through the parking lot.
9Mr. Gibbs was apprehended and brought to the ground by Detective Constable Wegenschimmel on or near the median on Eglinton Avenue. During the apprehension, the satchel went up into the air and landed on the windshield of a vehicle stopped at a red light. The female driver yelled and drove away. Mr. Gibbs was arrested.
10Detective Constable Grant recovered the satchel. Inside the satchel, he located a silver Smith & Wesson 9 mm firearm with one round in the chamber.
11As a result of the investigation, Mr. Gibbs was charged with six firearm-related offences. The Crown proceeded by indictment. Mr. Gibbs elected to proceed by trial in the Ontario Court of Justice. The trial lasted over three days.
12Mr. Gibbs was found guilty after trial on May 9, 2023, on three counts on the Information; namely, possession of a loaded prohibited firearm contrary to s. 95(1), unauthorized possession of a firearm contrary to s. 91(1), and possession of a firearm knowing it is unauthorized contrary to s. 92(1) of the Criminal Code.
13These were serious offences. A loaded prohibited firearm in a public setting, concealed in a satchel, presents an obvious and unacceptable risk to public safety. Denunciation and deterrence carry substantial weight, subject always to proportionality and to the Charter remedy addressed below.
14Sentencing did not proceed immediately. While awaiting sentence, Mr. Gibbs remained subject to custodial conditions that became central to his Charter application.
C. THE PARTIES’ POSITIONS ON WHITLOCK AND THE ADOPTION OF FINDINGS
15The defence argues that the Court should find Charter breaches under ss. 7, 8, and 12. The defence submits that the Court should look to Whitlock, where Conlan J. found breaches of ss. 7, 8, and 12 arising from the same ICIT deployment at Maplehurst.
16The Crown’s position must be stated with care. The Crown maintains that it disagrees with Justice Conlan’s conclusions in Whitlock and is appealing that decision. However, the Crown does not dispute my decision to adopt the findings of fact in Whitlock for purposes of this case. In light of horizontal stare decisis, the Crown acknowledges that it is open to me to find breaches of ss. 7, 8, and 12.
17The Crown also expressly invited me to adopt certain key points found within paragraphs 41 to 407 of Whitlock. Those key points are as follows:
First, the purpose of the ICIT deployment was vengeance, to avenge what happened to Correctional Officer Lecinski, relying on Whitlock at paras. 42, 59, and 63.
Second, staff in the control module were “smiling and laughing and mocking the inmates”, relying on Whitlock at para. 83(vi).
Third, “the guards in the hallway were, at times, pointing their weapons (which also act as flashlights) at the backs and at the heads of the inmates”, relying on Whitlock at para. 83(xxi).
Fourth, Superintendent Wong had a photo taken, relying on Whitlock at para. 83(xxvi).
Fifth, inmates were “without clothing, bedding and most everything” from the time taken out “until December 24, 2023”, relying on Whitlock at para. 83(xxxiv).
Sixth, management requests to have occurrence reports “prepared four months after ICIT activation” were “part of an after-the-fact effort to justify the ICIT deployment” and to “cover-up [the] real reason which was to avenge”, relying on Whitlock at para. 165.
18I adopt those findings of fact for the purposes of this application.
D. CUSTODY CREDIT, RELEASE, AND SUBSEQUENT HISTORY
19Mr. Gibbs was in pre-sentence custody from June 19, 2022, until July 15, 2024, for a total of 758 actual days. Applying the enhanced credit at 1.5 to 1, he receives 1,137 days of credit, equivalent to three years, one month, and twelve days.
20The defence filed Maplehurst lockdown records and a lockdown summary. I accept them as reliable evidence of the frequency and duration of restrictive confinement during Mr. Gibbs’ pre-sentence custody. They show that, over the period June 19, 2022, to December 4, 2023, Mr. Gibbs spent 534 days at Maplehurst and experienced 212 lockdown occurrences, comprised of 159 full lockdowns and 53 partial lockdowns, such that he was locked down for close to half of the time he would otherwise have had out-of-cell dayroom access. The summary attributes these lockdowns chiefly to staffing shortages or redeployment, as well as searches, contraband issues, and unscheduled maintenance. These records do not, on their own, establish the details of the ICIT operation, but they provide important objective context for the harshness of Mr. Gibbs’ overall custodial experience. With the Crown’s consent, Mr. Gibbs was released on an undertaking on July 15, 2024. Time spent on bail is not mitigating in this case. It is not evidence, on this record, of compliance or good behaviour. He was re-arrested in Halton on November 16, 2024.
21On January 28, 2026, Mr. Gibbs pleaded guilty to a similar firearm offence under s. 95 of the Criminal Code and is awaiting sentencing on that separate matter. I mention it only because it undermines any suggestion that his time on release should be treated as mitigating.
E. THE EVIDENCE ON THE CHARTER APPLICATION
(i) The witnesses and the structure of the record
22The Charter application proceeded over seven days on a viva voce record. Several exhibits were filed, including institutional video and documentation, lockdown materials, affidavits from: Ralph Serafini, the Building System Operator (BSO) at Maplehurst Correctional Complex, dated April 26, 2024; Robert Houston, Manager – Customized Training, Accountability and Culture with the Corrections Centre for Professional Advancement and Training, dated April 29, 2024; the Solicitor General’s Correctional Services Oversight & Investigations Report dated October 31, 2024; and medical and medication records. The defence called Mr. Serafini and Mr. Gibbs. The Crown called Mr. Houston, Nurse Practitioner Rampersaud, Registered Nurse Kaur, Medication Nurse Jackson, and ICIT Officer Griffith.
23The evidence addressed three themes. The first concerned objective conditions, including ventilation and temperature on Unit 8. The second concerned medical and medication issues, including what Mr. Gibbs was prescribed and what was dispensed during the lockdown and ICIT activation. The third concerned what occurred during the extraction, hallway detention, and return to Mr. Gibbs’ cell, including the allegation of an assault on the return to the cell.
(ii) Defence evidence: Mr. Serafini’s Testimony
24Mr. Serafini gave technical evidence about the HVAC system and exhaust fan operation serving Unit 8. He explained that exhaust or smoke fans are manually activated by wing, are not on timers, and that fan activation can affect temperatures in winter by exhausting warm air and altering airflow.
25Mr. Serafini introduced temperature charts and graphs and explained general setpoints and recorded dips in temperature during the relevant period. His evidence provided objective context for the allegation that the temperature in Unit 8 dropped while inmates were deprived of adequate clothing and bedding.
26I found Mr. Serafini to be reliable. His evidence was limited to mechanical operation and temperature data. He did not purport to know why the fans were activated, and he did not provide evidence about the inmates’ experience. I accept his evidence for its limited purpose.
(iii) Defence evidence: Mr. Gibbs’ Testimony
27Mr. Gibbs gave the principal narrative evidence of his experience during the ICIT deployment and its immediate aftermath. He testified that he was removed from his cell wearing only his boxers, without shoes, and that his wrists were secured with zip ties. He described the restraint and escort method as painful and humiliating, including being held in an awkward position with his arms controlled as he was moved through the unit. He testified that the restraint caused discomfort to his wrists and arms throughout the escort.
28Mr. Gibbs testified that he was directed to sit in the hallway, cross-legged, facing the wall, with his head down. He testified that he was told not to look left, right, or behind him. He described remaining in that position for a prolonged period, experiencing numbness and pain in his legs, and feeling he could not shift his posture without consequences.
29Mr. Gibbs described the atmosphere in the hallway as coercive and intimidating. He testified that ICIT officers were present with less-lethal pepper ball launchers and that he observed what he believed to be a laser dot directed at him. He described his perception that the officers’ posture and equipment conveyed a readiness to use force and that he feared being shot if he did not comply strictly with directions.
30Mr. Gibbs described statements he interpreted as threats. He described being warned to maintain his posture and suggested that failure to comply would result in being taken to “A&D,” which he understood as a further escalation. He testified that he felt he could be harmed if he moved or failed to follow instructions.
31Mr. Gibbs testified about the conditions upon his return to his cell. He described being cold and being deprived of basic necessities. He testified that he had no clothing beyond his boxers, that he did not receive bedding in the manner he expected, and that ordinary items and personal effects were not available to him. He described the deprivation as punitive.
32Mr. Gibbs testified that he heard loud bangs during the operation, which he associated with distraction devices. He described the sound as startling and frightening, and he said it contributed to his distress.
33Mr. Gibbs also testified about medical and medication issues. He testified that he had dental pain and requested Motrin and Tylenol. He also testified that he requested inhalers. He said he asked an officer and was told that medication would come when the medical nurse came, but he testified that the medical nurse did not arrive during the relevant period.
34Mr. Gibbs also complained, at points, that he had suffered a broken toe and that his concern was not addressed. The medical evidence included imaging of his right toe. The imaging report recorded no evidence of an acute fracture or dislocation and described the bones and joint spaces as preserved.
35When asked in cross-examination about the identity of the person from whom he sought Tylenol, Mr. Gibbs testified that he could not recall a name and could not narrow whether the person was male or female. He attributed this to the routine nature of segregation rounds and his lack of attention to the identity of particular staff members.
36Mr. Gibbs did not allege an assault in his application materials. The allegation arose for the first time in his direct examination. Mr. Gibbs testified that, on being returned to his cell, he was punched in the face, near his right temple on the right side of his head. Later in his evidence he described a second strike, stating that after he turned again, a second officer hit him somewhere on the back of his head. Mr. Gibbs attributed the first strike to Officer Griffith and the second to Officer Vandenburg.
(iv) Crown evidence: Mr. Houston’s Testimony
37Mr. Houston testified about ICIT training, the structure and roles within ICIT teams, the SMEAC briefing framework, and the types of equipment and tactics ICIT members are trained to use.
38Mr. Houston explained that pepper ball launchers are less-lethal tools and that ICIT training emphasizes avoiding prohibited strike zones such as the head. He acknowledged that aiming a launcher toward the head would be inconsistent with training. His evidence assisted in assessing whether certain conduct described by Mr. Gibbs was consistent with training or represented a departure from trained standards.
(v) Crown evidence: Healthcare and Medication Witnesses’ Testimony
39Nurse Practitioner Rampersaud testified about Maplehurst healthcare practices, the ordinary-course nature of medical charts and medication administration records, and the prescription requirements for certain medications, including inhalers. She testified about how prescriptions and administration are documented.
40The nursing evidence also addressed practice during major incidents, including the distinction between essential and non-essential medication distribution during institutional disruptions. The evidence was that non-essential medications may be withheld during an incident, whereas essential medications, including respiratory medications, would not be withheld when ordered.
41A central point of the healthcare evidence was that inhalers are not dispensed without an active prescription and documentation, and that there was no record of prescribed inhalers for Mr. Gibbs during the relevant period.
(vi) Crown evidence: Officer Griffith’s Testimony
42Officer Griffith testified as an ICIT officer. He described his role during the activation and his participation in the movement and control of inmates. He denied making threats, denied intimidating inmates, and denied assaulting Mr. Gibbs. He testified that any physical control used was limited to compliance and safety techniques consistent with training, and that he did not strike Mr. Gibbs when Mr. Gibbs was returned to his cell.
43Officer Griffith’s evidence was that his activation report was prepared using information from the SMEAC briefing and details provided by the coordinator, rather than being a narrative composed solely from personal observation. He acknowledged that his report did not record threats he personally heard and that he did not recall hearing threats of the kind he would have considered necessary to document.
44In cross-examination, Officer Griffith’s recollection was shown to be limited in several respects. He was unable to recall many specifics without reference to materials and, at times, relied on general practice rather than particular memory. Those limitations required careful scrutiny of his evidence, especially where it was offered as a specific account rather than an account of general ICIT procedure.
F. THE DISPUTED ALLEGATIONS
45The evidence required findings on two disputed matters. The first was whether Mr. Gibbs was denied inhalers and pain medication, as he alleged, as opposed to lawful operational withholding of non-essential medication, as supported by the contemporaneous record. The second was whether Mr. Gibbs was assaulted when he was returned to his cell. That assault allegation was not raised in the application materials and emerged for the first time in Mr. Gibbs’ direct examination. It was later described by Mr. Gibbs as involving two strikes, one allegedly by Officer Griffith and one allegedly by Officer Vandenburg.
46Although the cross-examination focused primarily on the first alleged strike, I have considered the entire assault allegation as it emerged and evolved in the evidence, bearing in mind the absence of prior notice and the limits on its weight.
G. CREDIBILITY FINDINGS
(i) Approach
47I accept that the overall character of the ICIT operation was harsh, degrading, and punitive, as reflected in the adopted Whitlock findings. However, those broader findings do not resolve the individualized disputes. Those disputes require credibility and reliability findings on a balance of probabilities.
(ii) Mr. Gibbs
48I did not find Mr. Gibbs to be a credible witness on the disputed individualized allegations. I accept that he experienced fear, discomfort, and humiliation during a degrading operation. My concern is reliability when his evidence moved beyond the established core features of the operation and into contested, individualized claims.
49On the inhaler and medication allegation, Mr. Gibbs testified that he requested Motrin and Tylenol for dental pain and that he requested inhalers, and that the medical nurse did not arrive. He then could not recall the identity of the person from whom he says he requested Tylenol, and could not even narrow the person’s gender.
50I found Mr. Gibbs’ inhaler evidence unreliable when tested against the healthcare evidence. The healthcare evidence was that inhalers require an active prescription and documentation, and that there was no record of prescribed inhalers for Mr. Gibbs during the relevant period. Where Mr. Gibbs’ evidence conflicted with reliable documentation and professional testimony, I preferred the latter.
51The “broken toe” complaint provides a further example of the need for caution in accepting Mr. Gibbs’ individualized medical assertions at face value. The imaging report did not confirm an acute fracture or dislocation. That does not mean Mr. Gibbs experienced no pain, but it does mean his characterization of the injury as a broken toe was not supported by the objective medical imaging. This inconsistency further undermines the reliability of his testimony on contested individualized medical allegations.
52On the assault allegation, I was not satisfied that Mr. Gibbs’ evidence was sufficiently consistent and reliable to meet the balance of probabilities standard. I found his account unsupported by reliable corroboration and inconsistent with the more persuasive evidence led in response.
(iii) Officer Griffith
53Officer Griffith testified as an ICIT officer and denied assaulting Mr. Gibbs. He denied that he struck Mr. Gibbs on the return to the cell. He also testified more generally in a manner that tended to present the ICIT operation as a necessary and professionally executed response.
54I did not find Officer Griffith entirely credible on the broader character of the ICIT deployment. His evidence tended to minimize or rationalize conduct that I have already found, based on the adopted Whitlock findings, to have been degrading and punitive. In that respect, I found that he was inclined to protect the conduct of ICIT members and staff, and to distance the operation from any suggestion of retaliation or humiliation.
55Officer Griffith’s reliability was also limited by the fact that he could not always speak from clear, independent recollection on specific operational details and, at times, relied on general practice rather than particular memory. I treated his evidence with caution when it went beyond what he could reliably observe himself.
56Despite those concerns, I accept Officer Griffith’s denial on the narrow and specific allegation that he assaulted Mr. Gibbs. On that issue, his denial was direct and consistent. It was not displaced by persuasive contradictory evidence. When it is weighed against the manner in which Mr. Gibbs introduced and then expanded the assault allegation during his testimony, I am not satisfied that Officer Griffith struck Mr. Gibbs.
H. FINDINGS OF FACT ON THE DISPUTED ALLEGATIONS
57I reject Mr. Gibbs’ allegation that he was denied prescribed inhalers. The weight of the healthcare evidence is that inhalers require an active prescription and documentation, and that there was no record of prescribed inhalers for Mr. Gibbs during the relevant period.
58I am not satisfied that the evidence establishes an unlawful, targeted withholding of necessary medication from Mr. Gibbs as alleged. The healthcare evidence indicates that non-essential medications may be held during major incidents, whereas essential medications, including respiratory medications, are treated differently when ordered.
59I reject Mr. Gibbs’ allegation that he was assaulted when returned to his cell. I am not satisfied on a balance of probabilities that either of the alleged strikes occurred. I accept Officer Griffith’s denial for the reasons given. As to the alleged second strike, Officer Vandenburg did not testify. No adverse inference arises from that fact because neither party called him. The burden remained on Mr. Gibbs to establish the allegation. Given the late emergence of the assault allegation, the manner in which it expanded during Mr. Gibbs’ direct evidence, the absence of persuasive corroboration, and my concerns about Mr. Gibbs’ reliability on contested individualized allegations, I am not satisfied that Officer Griffiths struck Mr. Gibbs.
I. CHARTER FINDINGS
60On the facts as I have found them and adopted them, I find breaches of ss. 7, 8, and 12 of the Charter arising from the ICIT deployment and its execution, including its punitive character, intimidation through the pointing of weapons, and the deprivation of clothing and bedding until December 24, 2023, as reflected in the adopted Whitlock findings.
J. THE STAY APPLICATION AND THE REMEDY
61The seriousness of Mr. Gibbs’ offending is not a reason to dilute the Charter analysis, but it is relevant to the remedy. Mr. Gibbs was convicted after trial of serious firearm offences involving a loaded prohibited firearm in a public setting. The public interest in denunciation, deterrence, and the adjudication of those offences on their merits is substantial. Those considerations do not excuse what occurred at Maplehurst, but they do inform whether the integrity of the justice system is best protected by terminating the prosecution or by continuing to sentence while granting a real and meaningful Charter remedy.
62The defence relied on the trial decision in R. v. Gilmore-Bent, [2024] O.J. No. 856, affirmed on appeal (2025 ONCA 553), as an example of circumstances in which a stay was upheld. The Crown relied on R. v. Husband, 2024 ONCA 238, as well as the governing stay framework, to support the position that where a convicted offender establishes serious Charter breaches arising from custodial mistreatment, a meaningful sentencing remedy can be a fit and available alternative to a stay.
63A stay of proceedings is a remedy of last resort reserved for the clearest of cases. The governing framework requires the court to determine: (1) whether prejudice to trial fairness or to the integrity of the justice system will be manifested, perpetuated, or aggravated by the continuation of the proceeding; (2) whether an alternative remedy is reasonably capable of removing that prejudice; and, if necessary, (3) to balance the competing interests: R. v. Babos, 2014 SCC 16 at paras. 30-32, 40-41, 44, and 47; R. v. Regan, 2002 SCC 12 at paras. 53-56.
64The first stage of the analysis is satisfied here. The adopted findings about the ICIT deployment establish that state actors engaged in conduct that was degrading and punitive. Proceeding to impose a sentence without a meaningful judicial response would risk leaving the impression that the justice system condones conduct that offends society’s sense of fair play and decency: Babos, at para. 35.
65The question then becomes the second stage: whether there is an alternative remedy reasonably capable of removing the prejudice?
66The Gilmore-Bent decision provides a useful illustration of when a stay may be justified, but it is distinguishable in ways that are decisive at the second stage of the Babos analysis. In Gilmore-Bent, the trial judge found not only a discrete and gratuitous use of force against an accused in pretrial custody, but also a case-specific cover-up, including false use-of-force reporting, deficient supervisory review despite video evidence to the contrary, and misleading testimony in the litigation. The court upheld the stay, emphasizing that the systemic concern was not a broad condemnation of an entire institution but rather the coordinated suppression of evidence within the case itself: R. v. Gilmore-Bent, at paras. 1-3, 6-7, and 47-54.
67That additional, case-specific feature explains why a sentence reduction was found to be an inadequate alternative remedy in the Gilmore-Bent case. The prejudice there was not limited to custodial mistreatment. It included obstruction-like conduct that directly engaged the integrity of the adjudicative process and would be perpetuated by continuing the prosecution. In that setting, a sentence reduction could not reasonably be treated as capable of removing the prejudice because it would not address the features of the misconduct that were tied to the proceeding itself, including false reporting and misleading testimony: Gilmore-Bent, at paras. 47-54 and 61-62.
68This case is materially different. The misconduct associated with the ICIT deployment was serious, and a meaningful Charter remedy is required. However, this proceeding does not present the additional, decisive feature that made a stay the proportionate remedy in the Gilmore-Bent case. The continuation of this case through sentencing will not perpetuate a case-specific cover-up through false reporting and misleading testimony in the litigation, as in the Gilmore-Bent case. The integrity concern here, while serious, can be addressed through a substantial sentencing remedy in the post-conviction posture.
69R. v. Husband supports the Crown’s position that a sentencing remedy can be the suitable alternative to a stay in an appropriate case. In the Husband decision, the court upheld the refusal to grant a stay, confirming that the “clearest of cases” threshold was not met and that a sentencing remedy can be a reasonably capable alternative where the accused is convicted and before the court for sentence: Husband, at paras. 9-14.
70The Husband decision also provides important guidance about what is required when sentencing is used as the remedial vehicle under s. 24(1). The court intervened on the sentence because the sentencing reasons did not explain how the granted reduction addressed the seriousness of the Charter breaches and other relevant considerations. The reduction was described as conclusory and impervious to appellate review, and the remedy ultimately imposed was a reduction to time served: Husband, at paras. 18-20. The lesson is that if a court declines a stay and instead provides a sentencing remedy for serious custodial Charter breaches, the remedy must be meaningful and transparently connect the remedial consequence to the constitutional wrong.
71The Crown also relied on the broader context that pre-trial detention is often more onerous than post-sentence incarceration, a reality reflected in the availability of enhanced credit: R. v. Summers, 2014 SCC 26 at para. 28. The Summers decision does not answer the stay question, but it underscores that sentencing courts must be attentive to the lived reality of pre-sentence custody and must explain how any further remedy under s. 24(1) responds to state misconduct without collapsing the analysis into arithmetic.
72The Crown further relied on decisions arising from the Maplehurst ICIT context in which the stay remedy was rejected because a substantial sentence reduction was available and capable of removing the prejudice. In R. v. Neverson, 2025 ONSC 7121, Conlan J. dismissed the stay and held that a significant sentence reduction was a reasonably capable alternative remedy in the post-conviction posture. His Honour went on to say the following:
40 In my view, this Court ought to take a cautious approach in deciding this case. I should determine only what I strictly need to determine in order to dispose of the application. I should decide the matter narrowly. That is especially so because there are several other similar cases that have been referred to this Court, and each case must be decided on its own particular facts.
41 With that cautionary approach in mind, the stay of proceedings application for Mr. Neverson may be decided strictly on the second criterion.
42 In my view, in this case, unlike in Whitlock, there is an alternative remedy that is reasonably capable of removing any prejudice caused by the abuse in question, namely, a significant reduction in sentence.
73The Crown also referred to R. v. Velauther, 2025 ONSC 6877, as another post-Whitlock decision in which the court proceeded on the footing that, in a post-conviction situation, a substantial reduction in sentence may be the appropriate means of vindicating Charter rights, rather than the exceptional remedy of a stay. I do not treat Velauther as determinative of the result here. I refer to it only to reinforce the proposition, consistent with the Husband and Neverson decisions, that where an offender is convicted, and a meaningful sentencing remedy is available and capable of removing the prejudice, the stay remedy will not ordinarily be needed.
74In this case, a substantial sentencing remedy is reasonably capable of removing the prejudice that would otherwise be manifested, perpetuated, or aggravated by continuing the proceeding. The remedy I impose is real and liberty-affecting. It results in a sentence of time already served. Having found an adequate alternative remedy at the second stage of the Babos analysis, it is unnecessary to proceed to the third stage - balancing. In these circumstances, I dismiss the stay application.
K. SENTENCING
75A fit sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at paras. 37 and 40; R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633 at p. 645.
76The offences of conviction are serious. They ordinarily require a sentence that gives substantial weight to denunciation and deterrence, particularly where a loaded prohibited firearm is possessed in a public setting. At the same time, the Charter breaches associated with the ICIT deployment require a meaningful remedy under s. 24(1). Neverson confirms that when multiple Charter violations occurred during the ICIT deployment, the sentence-reduction remedy must be substantial. Neverson at paras. 42 and 87–91.
77Mr. Gibbs has a criminal record. The record includes youth justice convictions in 2015 for assault, assault with a weapon, robbery, and related fail to comply offences, with probationary dispositions and youth weapons prohibition orders. As an adult, the record includes a conviction for robbery with violence in 2017, resulting in a suspended sentence, probation, and a mandatory weapons prohibition, as well as later convictions for criminal harassment and multiple failures to comply with court orders, including probation order offences, and a conviction for possession of a weapon. The record also includes a 2020 conviction for escape from lawful custody, with a suspended sentence and probation. The record also reflects that Mr. Gibbs has previously spent significant time in pre-sentence custody on other matters. In particular, the 2017 robbery with violence disposition recorded credit for the equivalent of 12 months of pre-sentence custody, the 2018 criminal harassment disposition recorded credit for the equivalent of 18 months of pre-sentence custody, and the 2019 fail to comply with probation conviction attracted credit for the equivalent of 12 months of pre-sentence custody.
78I consider this record relevant in three ways. First, it informs the assessment of Mr. Gibbs’ moral blameworthiness and the need for specific deterrence, particularly given the presence of prior weapons-related conduct and repeated failures to comply with court orders. Second, it limits the weight that can be placed on any submission that this matter should be approached primarily through restraint. Third, it bears on the evaluation of rehabilitative prospects. The record does not diminish the seriousness of the Charter breaches, but it does inform the “but for” sentence that would otherwise be fit for serious firearm offences of this kind.
79The defence filed letters of support from family members. I have read and considered them. The letters consistently describe Mr. Gibbs as a central support figure in his family, particularly during periods of financial instability, and emphasize the practical and emotional assistance he provided to his siblings while they were growing up. The letters also convey the family’s commitment to supporting him upon release and their belief that he can live differently if given the opportunity.
80Mr. Gibbs’ brother describes him as having assumed responsibility in the home from a young age, including helping with basic needs and serving as a stabilizing influence within the family. His sister describes him as a consistent source of encouragement and support, including during her schooling and significant life events. Both letters emphasize a close family bond and the importance of Mr. Gibbs’ presence to the family unit.
81Mr. Gibbs’ aunt provides a longer account of adversity in his upbringing, including poverty, instability, exposure to violence, and learning difficulties. She emphasizes that these circumstances shaped his development and decision-making and states that the family is prepared to provide structure and support on his return to the community. I treat these letters as relevant to Mr. Gibbs’ personal circumstances and rehabilitative prospects. I do not treat them as diminishing the seriousness of the offences, but they inform the individualized assessment of sentence.
82Mr. Gibbs does not have the benefit of a guilty plea; however, the trial was based on the assertion of Charter rights. A trial was necessary as some charges were withdrawn and/or dismissed at trial.
What is a Fit Sentence for Mr. Gibbs?
83Absent the Charter breaches, I agree with counsel that a fit global custodial sentence would have been three years’ imprisonment, treating the sentence on the s. 95(1) count as the controlling sentence.
84In arriving at that “but for” sentence, I have taken into account the generally onerous nature of pre-sentence detention. That reality is addressed, at the credit stage, through the statutory enhanced credit available under s. 719(3.1) of the Code: Summers, at para. 28. To the extent established on this record, I have also taken into account the impact of any particularly harsh pre-sentence incarceration conditions as a mitigating factor in determining the fit “but for” sentence, consistent with R. v. Duncan, 2016 ONCA 754 at para. 6 and the approach described in R. v. Marshall, 2021 ONCA 344 at paras. 11-13. I do not treat those harsh conditions as an additional arithmetic deduction from the sentence after statutory credit is applied, to avoid double-counting and maintain a transparent sentencing pathway.
85As a remedy under s. 24(1) of the Charter for the breaches of ss. 7, 8, and 12 arising from the ICIT deployment, I reduce the custodial sentence by one year. A sentencing reduction may be an appropriate and just remedy for Charter-infringing state misconduct in relation to the offence and offender: R. v. Nasogaluak, 2010 SCC 6 at paras. 3-6. The resulting global custodial sentence is two years’ imprisonment.
86I impose two years’ imprisonment on the s. 95(1) count, treating it as the controlling count. I impose one year’s imprisonment on the s. 92(1) count concurrent. A conditional stay is entered on the s. 91(1) count pursuant to the Kienapple principle.
87Mr. Gibbs has 1,137 days of enhanced pre-sentence custody, which equals three years, one month, and twelve days. He has therefore served the custodial sentence imposed. The custodial component of the sentence is satisfied by time already served.
DISPOSITION
88The application for a stay of proceedings is dismissed.
89Mr. Gibbs is sentenced to a global custodial term of two years’ imprisonment on the convictions before the Court. After credit for pre-sentence custody, the custodial component is satisfied by time already served.
ANCILLARY ORDERS
90I will hear counsel on the appropriate ancillary orders, including any DNA order, firearms prohibition order, forfeiture order, etc.
91The victim fine surcharge is waived.
Released: April 27, 2026
Signed: Justice P.T. O’Marra