His Majesty the King v. Joseph Reuben Fairbairn, 2026 ONCJ 345

ONTARIO COURT OF JUSTICE

CITATION: R. v. Fairbairn, 2026 ONCJ 345

DATE: 2026 06 11

COURT FILE No.: Lanark 998 25 18100712

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOSEPH REUBEN FAIRBAIRN

Before Justice Rose

Heard on January 26, June 2, 2026

Reasons for Judgment released on June 11, 2026

M. Tawdrous........................................................................................ counsel for the Crown

M. MacDonald............................................... counsel for the accused Joseph Fairbairn

Rose J.:

1In the early morning hours of July 2, 2025 Mr. Fairbairn appeared at the door and bedroom window of his partner Brittany Ovens’ apartment in Smiths Falls. She called the police and when Mr. Fairbairn was apprehended by the police less then an hour later he gave them a false name. He also threw a satchel under a nearby car. The bag had a loaded 9mm handgun in it. He pleaded guilty before me to: Prowl at Night per s. 177; Obstruct Peace Officer per s. 129(a); Carry Concealed Weapon per s. 90; and Possess a loaded prohibited firearm per s. 95(1). These are my reasons for sentence.

Facts

2In his guilty plea Mr. Fairbairn admitted to the following: In the fall of 2024 Mr. Fairbairn was in a short Intimate partner relationship with the complainant Brittany Ovens. It lasted less than a month. They had not spoken between the time of the split and July 2, 2025. That morning, he appeared at her apartment and attempted to get her to open the door. He also threw rocks at her bedroom window to get her attention. She was in bed at the time and initially did not get out of bed. When she went to the door she saw Mr. Fairbairn through the peep hole standing there. She called 911, and while she was on the phone with the police Mr. Fairbairn tried the door handle. At this point Ms. Ovens was in a full state of panic, because she thought he was there to harm her.

3When the police arrived at 00:49 they saw Mr. Fairbairn walking around Ms. Ovens house. He had no permission or reason to be on the property. He was later detained two minutes later nearby. When questioned he gave the police the police a false name, Jamal Henderson. The complainant identified Mr. Fairbairn and a database search permitted the police to identify the man they stopped as the defendant.

4When the defendant was apprehended by the police he had discarded a brown sweater which was later found under a vehicle nearby. The police found the sweater, which was intertwined with a satchel containing a fully loaded 9mm Ruger handgun. He had no authorization or license to possess it . When arrested he tried to hide a satchel with a fully loaded 9mm Ruger handgun under a car in the driveway of Ms. Ovens’ apartment building.

Victim Input

5Ms. Ovens was impacted by this. She developed a fear of strangers and is “hyperaware of my surroundings”. This fear shifted to terror when she found out that Mr. Fairbairn had a firearm with him. She is no longer comfortable in her own home, and struggles to feel safe anywhere. Sometimes she suffers full blown panic attacks, and is fearful of retaliation from Mr. Fairbairn. She has lost time at work so that she can attend therapy.

6Based on the Victim Input I would describe the impact this had on Ms. Ovens as significant.

Mr. Fairbairn

7When Mr. Fairbairn entered his plea I ordered a Pre-Sentence Report enhanced so that it could deal with Mr. Fairbairn’s race and culture, in other words a Morris report per R. v. Morris 2021 ONCA 680 at par. 134 and 135.

8No PSR or other report was prepared. It is unclear why. After submissions were completed, and while the case was under deliberation probation advised the Court that it was an administrative error. That message was forwarded to both Crown and Defence. Before submissions commenced I expressed my frustration that I had no PSR or prepared report available. Mr. Fairbairn instructed Mr. MacDonald to proceed with the sentencing rather than put the case over to get the PSR and Morris Report. When the case came before me for sentencing submissions it was then 4 months and 1 week since entering the plea.

9Because of the inability to furnish a PSR, I take Mr. MacDonald entirely at his word when he made submissions about Mr. Fairbairn’s experience as a racialized young man.

10Mr. Fairbairn is 25 years old. He has no prior involvement with the criminal justice system. He is a permanent resident and this case has the potential to have a negative impact on his ability to stay here in Canada. He has a high school equivalency and has been working consistently in warehousing or landscaping. He has no children, no mental health or addiction or substance abuse issues. He is presently in a committed relationship with a woman who can provide housing.

11Mr. MacDonald advises that Mr. Fairbairn has been in custody since his arrest on July 2, 2025. He has not had any institutional offences while on remand. I am told that he experienced racism while in custody, and that his custodial conditions were lacking. He did not have adequate food. While he experienced racism while in jail and was denied work opportunity before the offence because of race, there is no argument that this offence was caused by systemic racism. Mr. MacDonald does argue that Mr. Fairbairn had the gun because of his fear of suffering violence at the hands of others. He had the gun for self-protection because of a genuine fear for his own safety.

12Based on the material before me I find that the aggravating factors of the case are:

i) The victim of the prowling is a former intimate partner. Mr. Fairbairn wanted entry to her apartment with no warning, after no communication for some months for no apparent reason.

ii) The victim input makes clear that this had a real impact on Ms. Ovens. She continues to experience the psychological effects of this.

iii) The gun was a 9mm loaded pistol. This gun was designed to inflict lethal harm on persons. Guns are loaded so that they can be fired quickly, and this one was loaded. Illegal possession of handguns is a scourge in Ontario.

Furthermore, Lanark County is a place where lawful gun ownership is common. Illegal possession of weapons, as in this case, tends to detract from public confidence in lawful gun ownership. This tends to negatively affect the broader population of lawful gun owners.

Mr. Fairburn claims that he possessed the gun for self defence. I reject that as a mitigating circumstance. That claim is really premised on another, which is that Mr. Fairbairn sought only to use the gun in a manner which would not pose a risk to public safety. Like other judges, I find that argument unpersuasive, see for eg R. v. Kandhai 2020 ONSC 3580 at par. 73. I agree with Prutschi J.’s comments in R. v. Francis 2025 ONCJ 21, “The choice to respond to gun violence by acquiring a gun simply feeds the continuing cycle of tragedy wrought by firearms in this Province.” Mr. Fairbairn bears a high degree of moral responsibility.

Therefore the claim of possession for self-defence tends to reinforce the deterrent and denunciation requirement for this sentence. The broader public needs protection from illegal gun ownership.

iv) It is an aggravating factor that Mr. Fairbairn brought a hand gun to what he hoped was an uninvited house call to an intimate partner in the early morning hours, and then discarded it when he knew the police were about to detain him. Abandonment of a weapon can be a significant aggravating factor because the manner of the abandonment can pose a further risk by accidental discharge. Guns tend to go off when they are cast aside quickly. In this case, given the time of the morning, location of the abandoned gun underneath a car I would attenuate this aggravating factor. There is no sense that members of the public were anywhere nearby.

13There are mitigating circumstances:

i) Mr. Fairbairn pleaded guilty and accepted responsibility. He saved Ms. Ovens from having to come to Court and re-live the moment;

ii) He is youthful and has no criminal record;

iii) He has experienced racism as a person in custody in the form of differential treatment. While there is no specific evidence of that, the inability to bring a Pre-Sentence Report and Morris report - through no failure of Mr. Fairbairn - leads me to accept this.

iv) His custodial conditions while on remand have been substandard.

v) Mr. Fairbairn is a permanent resident. This will have a negative impact on his immigration status.

14Based on the foregoing I find that deterrence and denunciation are the predominant sentencing factors. I would not devalue denunciation and deterrence. Aside from the many comments about the inherent danger of illegal possession of handguns, I would add this. Having a gun, like Mr. Fairbairn admitted to, can never be normalized. It should not be seen as something which, while illegal, nonetheless is so common as to be attracting a minimal penalty. Courts have a limited ability to affect social behaviour, but when it comes to illegal guns, sentencing is one available remedy. Because of Mr. Fairbairn’s age rehabilitation is also a primary factor, see R. v. Habib 2024 ONCA 830 at par. 39.

15Mr. Tawdrous seeks a 4 year jail term less pre-sentence custody, DNA data banking, a 10 year weapons prohibition under s. 109, and a 743.21 order prohibiting communication with Ms. Ovens while serving his sentence.

16Mr. Macdonald seeks a Conditional Sentence with GPS monitoring, or alternatively a custodial sentence of 24 months less pre-sentence custody.

17Mr. Fairbairn has been in custody since his arrest on July 2, 2025. From that day to today is 344 days. At the statutory rate per R. v. Summers 2014 SCC 26 of 1.5:1 his credited pre-sentence custody is therefore 516 days.

18Both Mr. Tawdrous provided a helpful selection of sentencing decisions. The range of sentence is in the upper reformatory to lower single digit penitentiary sentences.

19Cases at the upper end of the range include Habib (supra) where the Court of Appeal recently imposed a 3 year jail sentence for having a prohibited loaded handgun in his car; R. v. Henry-Robinson 2022 ONCJ 302 (40 months); Rex v. Mansour 2023 ONSC 2065 (3 years less pre-sentence custody); R. v. McKenzie 2016 ONSC 5025 3.5 years); R. v. Mesinele 2023 ONCJ 28 (2 year 10 months); R. v. Sukkushe 2023 ONCJ 15 (36 months); R. v. Farac 2026 BCCA 64 ( 774 days)

20Cases at the lower end of the range include: Rex v. Assefa 2025 ONSC 3747 (C.S.O. for 2 years less a day); R. v. Iqbal 2025 ONSC 3222 (2 years less a day CSO); R. v. Desmond-Robinson 2022 ONCA 369 (2 years less a day CSO); R v. Burke-Whittaker 2025 ONCA 142 upheld, 2026 CanLII 46920 with reasons to follow( 2 years less a day CSO ); Rex v. Stewart 2024 ONSC 281 (2 years less a day CSO); 18 months jail (R. v. Marsan 2020 ONCJ 638)

21Aggravating circumstances in the case law tend to include: risk of harm to bystanders (Habib, ); concurrent possession of drugs (Habib).

22Mitigating factors tend to include: youthful first time offenders (Habib); a joint submission (Assefa); positive rehabilitative steps (Desmond-Robinsion, Burke-Whittaker, Stewart)

23In submissions I asked for assistance in determining the appropriate interpretation of R. v. Burke-Whittaker (supra). The Court of Appeal in that case (R. v. Burke-Whittaker 2025 ONCA 142) upheld a 2 year less a day Conditional Sentence for two very different reasons. Favreau J. found the sentence to be unfit. She found that a three year sentence for discharging a firearm was appropriate and the trial judge’s imposition of a Conditional Sentence of 2 years less a day an error. But she also found that to re-incarcerate the Respondent would be unjust and for that reason alone upheld the sentence. Dawe J. concurred in that result but for entirely different reasons. He found that the sentencing judge committed no error when he imposed a Conditional Sentence. Hourigan J dissented and would have imposed a 38 month sentence less time served.

24On May 19, 2026 the Supreme Court of Canada dismissed the Appeal, and affirmed the Conditional Sentence upheld by the Court of Appeal, see R. v. Burke-Whittaker 2026 CarswellOnt 8235 (S.C.C.). Reasons for that are, at this time, outstanding. I therefore do not have the benefit of knowing whether the Supreme Court upheld the Favreau J ruling or Dawe J’s. Each is quite different in its reasoning. As Professor Kerr wrote,

This is a uniquely divided court on what continues to be a challenging question of when judges can make uses of their discretion to impose conditional sentences, here in the context of gun crime”.

1 C.R. (8th) 48

25Given the Court of Appeal’s ruling in R. v. Habib (supra) I find that in law, a conditional sentence is not outside the range of sentence if the appropriate sentence is less than 2 years. The test for imposition of a conditional sentence has not changed.

26Based on the sentencing decisions the range of appropriate sentence begins at upper reformatory, and goes up to 4 years where the offender has no prior criminal record, pleads guilty and has in their possession a loaded handgun at the true crime end of the spectrum.

27I find that this case falls closer to the true crime end of the range, see R. v. Nur 2015 SCC 15 at par. 82.

28In this case I find that the appropriate sentence is 2 years 6 months (912 days) for the s. 95(1) count. I find that Mr. Fairbairn’s youthfulness, rehabilitative prospects, the guilty plea and his experience of racism in jail all pull the sentence down from the Crown’s position. From this I would credit Mr. Fairbairn for his 516 days of pre-sentence custody. The remaining sentence is therefore 396 days of custody.

29The remaining issue is therefore whether that period of custody should be served in the community or in jail. As a custodial sentence of less than 2 years it passes the first part of the test in s. 742.1. I also find that Mr. Fairbairn would not pose a risk of harm to the community.

30The real question to be decided is whether a conditional sentence for the balance of the sentence, namely 396 days fulfills the appropriate sentencing goals. This is a difficult case, but having reflected on it I find that it would not. Bringing a loaded handgun to the home of a former intimate partner unannounced in the early morning hours is something which requires denunciation and deterrence beyond that which a Conditional sentence can provide. It would not fulfill the sentencing objectives in s. 718.2 of the Code. I say that I in full recognition that a Conditional Sentence can provide deterrence and denunciation, see R. v. Proulx (2000) 2000 SCC 5, 30 C.R. (5th) 1 (SCC). But not in every case. This is one of them.

31For these reasons the sentence will be:

Count 1 – Trespass at night 7 days jail;

Count 3 – Obstruct Peace Officer 7 days in jail concurrent to #1

Count 4 – Carry Concealed Weapon 396 days in jail; concurrent to #1

Count 5 – Possess Prohibited Firearm 396 days in jail with 516 days of Pre-Sentence Custody noted.

32Once Mr. Fairbairn is released he will be on probation for 18months with terms:

-report within 48 hours by telephone;

-take counselling;

-no contact with Brittany Ovens.

-stay 100 meters away from anywhere you know her to live work go to school or frequent;

-No weapons

33There will be a s. 743.21 Order prohibiting communication while in custody with Brittany Ovens. Mr. Fairbairn must supply a sample of his DNA to the National DNA Databank. There will be a s. 109 Order for 10 years. Under the circumstances the victim fine surcharge is waived.