ONTARIO COURT OF JUSTICE
Toronto
BETWEEN:
HIS MAJESTY THE KING
— AND —
DAVEION BROWN
Before Justice Newton-Smith
Heard on November 3, 4, 21 and 23, 2022
Reasons for Judgment released on April 1, 2025
Sentenced on April 16, 2025
D. MacAdam counsel for the Crown
L. Metcalfe and M. Sciarra counsel for the accused Daveion Brown
REASONS FOR SENTENCE
1This matter has a long and somewhat complex history. It finally concluded on April 16, 2025, when Mr. Brown was sentenced for the offences of possession of, and trafficking in, a firearm. He was sentenced to a conditional sentence of 2 years less a day. These are my reasons for sentence.
2Mr. Brown originally stood trial before me in November of 2022. He was charged with trafficking in cocaine, possession for the purpose of trafficking in cocaine, possession of a firearm, and trafficking in a firearm.
3The defence brought a Charter application alleging violations of Mr. Brown’s s. 7, 8 and 9 rights and seeking a stay of proceedings. On December 15, 2022 I allowed the application in part and stayed the two firearms charges. Mr. Brown was then acquitted of the charge of possession for the purpose of trafficking in cocaine and convicted of trafficking in cocaine. On April 27, 2023 he was sentenced to 15 months on the charge of trafficking in cocaine.
4On June 7, 2024 the Court of Appeal overturned the stay of proceedings with respect to the firearms charges and sent the matter back for a continuing trial on those charges, before me if available.
5The matter returned before me was adjourned pending a defence application for leave to appeal to the Supreme Court of Canada. Leave was ultimately denied.
6On April 1, 2025 I convicted Mr. Brown of trafficking in, and being in possession of, a firearm. The facts are set out in my reasons for judgment dated April 1, 2025.
7In short, on May 26, 2020 Mr. Brown transferred a firearm to a Mr. Morrison. The transaction occurred in Mr. Morrison’s car which was parked outside of Mr. Brown’s residence. Mr. Brown was one of many subjects of a longer police project investigation at the time and was under surveillance. Mr. Morrison was arrested shortly after he drove away. The firearm was found concealed in a sock in the trunk of his car. It was not loaded.
8Mr. Brown was not arrested until October 15, 2020 when he was arrested for the May 26, 2020 gun trafficking incident as well as the above charge of trafficking in cocaine. He was sentenced for the charge of trafficking in cocaine on April 27, 2023 and received a sentence of 15 months less credit for pre sentence custody.
9On October 6, 2023 Mr. Brown was released from custody with respect to that sentence.
10Eight months later, on June 27, 2024, the Court of Appeal overturned the stay of proceedings with respect to the firearms charges and sent the matter back for a continuing trial before me.
11In overturning the stay of proceedings, the Court of Appeal found the following:
Having balanced the competing considerations, I conclude that a stay is not warranted.
I would, however, denounce the conduct by the Toronto Police Service officers in this case. They did not understand the distinction between a Feeney warrant and a search warrant; they were not aware of the onerous criteria for an unannounced entry set out in s. 529.4(3); and they did not understand that they were required to comply with the terms of the warrant that was issued. As found by the trial judge, they disregarded the judicial authorization they had been given. Although DC Gomes testified that he considered dynamic entries on a “case by case” basis, there is no evidence that he and his team ever considered any other approach. Their execution of the Feeney warrant violated Mr. Brown’s Charter rights, embarrassed and traumatized Mr. Brown and Ms. Agapen-Mullings, and imperiled a prosecution for weapons and guns trafficking and possession. Had there been evidence that the approach used in this case represented a blanket policy of the Toronto Police Service’s Guns and Gangs unit, a stay may have been a just and appropriate remedy, subject to the balancing exercise mandated by the third Babos requirement. Should evidence of a blanket or default policy of no-knock, dynamic entries within the Toronto Police Service emerge in future cases, stays of equally serious proceedings should be expected.
Should Mr. Brown be found guilty of one or both of the gun-related charges previously stayed, it would be fitting for the sentencing judge to consider whether his sentence should be reduced to reflect the impact of the police misconduct on him.
R. v. Brown, 2024 ONCA 453 at paras 92-94
12That is the history of these proceedings which led to Mr. Brown receiving a conditional sentence on the charges of being in possession of, and trafficking in, a firearm.
Mr. Brown’s circumstances
13After Mr. Brown was born his mother was deported and his father was incarcerated. Mr. Brown was raised by his grandmother with whom he is close. He has 5 younger siblings and 6 older siblings.
14As a teenager he started using drugs and developed a cocaine addiction. By the time he was 18 he was dealing.
15At the time of his arrest in October of 2020 Mr. Brown had hit rock bottom. He had dropped out of centennial college where he was studying to be an occupational therapist and was involved in a negative peer group and criminal lifestyle. He had a criminal record with a conviction for possession of cocaine from August of 2017 for which he received a suspended sentence, and another conviction for possession of cocaine and fail to comply from March of 2019 for which he received again received a suspended sentence.
16When I sentenced Mr. Brown on the cocaine trafficking charge in April of 2023 he told me he had aspirations to work in the trucking industry and one day start his own company. At that time he had been out of trouble since his release and found work at a trucking company. He and his girlfriend, who had been present at the time of his arrest, were still together and he was committed to the relationship and a future together.
17Mr. Brown was released from custody on that sentence in October of 2023, and continued on in a positive direction.
18At the time of sentencing it had been 5 years since his arrest in October of 2020 and Mr. Brown had quite literally turned his life around. He took every course offered to him while incarcerated. He found work as a truck driver, took every available shift and was able to pay rent on an apartment. He was living in a committed relationship with his girlfriend and spending time with his extended family. He was providing some financial support to his grandmother who raised him and helping to care for members of his family including his grandfather.
19When Mr. Brown ultimately came before me for sentencing on the gun charges it was April 16, 2025. Mr. Brown was 30 years old and was a changed young man. He had worked hard to gain employment, was in a long term committed relationship and had family support. He had long since left behind the downward spiral that his life had been on prior to his arrest in May of 2020. Mr. Brown had demonstrated that it is possible to start again. He was a young black man who had turned away from a life of criminality to become a contributing member of society with a future.
The sentence imposed
20It was the Crown’s position that while a 4 year sentence would ordinarily have been appropriate for Mr. Brown on the charges of being in possession of, and trafficking in, a firearm a sentence reduction was warranted. In light of Mr. Brown’s demonstrable and commendable rehabilitation, the history of the proceedings and the amount of time which Mr. Brown had been on bail and before the courts, the principle of totality and the Court of Appeal’s findings with respect to the breach of Mr. Brown’s Charter rights, the Crown took the position that a sentence of 2 years would meet the objectives and principles of sentencing.
21It was the defence position that a suspended sentence and probation was appropriate.
22I sentenced Mr. Brown to a conditional sentence of 2 years less a day, the entirety of which was subject to house arrest with exceptions for work and church.
23The circumstances of this case which made a conditional sentence appropriate are exceptional. It is difficult to imagine how they could be repeated.
24The Court of Appeal directed that in this case a reduction of sentence could be the appropriate remedy for the violation of Mr. Brown’s Charter rights, stating at para 81:
A reduction of sentence could also be a feature of a just and appropriate remedy in the circumstances. It would demonstrate the court’s concern with the Toronto Police Service’s disregard for Mr. Brown’s Charter rights and emphasize the need for judicial authorization for a no-knock execution of a Feeney warrant. It would also incidentally provide some redress to Mr. Brown for what he and Ms. Agapen-Mullings experienced on October 15, 2020. As mentioned earlier, such redress is not the focus of a s. 24(1) remedy, but it may be an appropriate by-product.
25In the very unique circumstances of this case the Crown conceded that a 2-year sentence was appropriate. This made a conditional sentence available.
26Since his arrest in October of 2020 Mr. Brown had demonstrated that he was capable and willing to abide by court orders including strict house arrest. He had also demonstrated that rehabilitation was possible and he was committed to it.
27Given the direction of the Court of Appeal, the lengthy and unusual history of this case, Mr. Brown’s personal circumstances and tremendous strides towards rehabilitation, reincarcerating Mr. Brown would have prioritised denunciation and general deterrence over all other principles and purposes of sentencing and, importantly, would not have provided a just and appropriate remedy for the violation of his Charter rights.
28The imposition of a conditional sentence allowed the purposes and principles of sentencing to be satisfied while providing a remedy for the violation of Mr. Brown’s Charter rights.
29It is hard to imagine that circumstances like this would occur again, and this case should not stand as precedent for the imposition of conditional sentences for trafficking in firearms.
Released: January 8, 2026
Signed: Justice Newton-Smith