Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Edward McGrath
Before: Justice Berg
Decision on Sentencing
Released: April 16, 2020
Counsel:
- M. Boyce, counsel for the Provincial Crown
- K. Stein, counsel for the defendant
Berg J.:
Introduction
1On March 27, 2020, I found Mr. McGrath guilty of several offences while acquitting him of others after a multiple day trial. Sentencing submissions were made on April 1 under the procedures put in place as a result of the COVID-19 pandemic; with the consent of all involved, I was in the courtroom with the staff, Mr. McGrath appeared by video from a detention centre, while the lawyers participated by way of a telephonic conference call utilizing the speaker function of the court telephone. While this procedure was far from perfect, it worked surprisingly well.
2Mr. McGrath was acquitted of the following offences: use of a handgun in the commission of an indictable offence under (s. 85(3) Criminal Code); careless use of a handgun (s. 86(3) Criminal Code); pointing of a handgun without lawful excuse (s. 87(2) Criminal Code); common nuisance, namely discharging a firearm (s. 180(1)(a) Criminal Code); reckless discharge of a handgun (s. 244.2(3) Criminal Code); common assault (s. 266 Criminal Code); possession of crack cocaine for the purpose of trafficking (s. 5(2) CDSA); possession of cocaine for the purpose of trafficking (s. 5(2) CDSA); and possession of Xanax for the purpose of trafficking (s. 5(2) CDSA). Furthermore, two other counts were stayed at the request of the Crown: the possession of a BB-gun; and the possession of ammunition while prohibited (contrary to s. 117.01(3) of CC). As well, two further counts were dismissed at the invitation of the Crown: possession of methamphetamine for the purpose of trafficking (contrary to s. 5(2) CDSA); and possession of cannabis for the purpose of distribution (contrary to s. 9(5) Cannabis Act).
3He was, however, found guilty of the following counts on the information:
I. Possession of a handgun for a purpose dangerous to the public peace, contrary to s. 88(2) Criminal Code;
II. Possession of bullets for a purpose dangerous to the public peace, contrary to s. 88(2) Criminal Code;
III. Possession without lawful excuse of a restricted firearm, namely a handgun, contrary to s. 91(3) Criminal Code;
IV. Possession without lawful excuse of a restricted firearm, namely a handgun, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to s. 92(3) Criminal Code;
V. Occupation without lawful excuse of a motor vehicle knowing that there was in that motor vehicle a restricted firearm, namely a handgun, contrary to s. 94(2) Criminal Code;
VI. Possession without lawful excuse of a loaded restricted firearm, namely a handgun, on Montfort Street, contrary to s. 88(2) Criminal Code; contrary to s. 95(2) Criminal Code;
XII. Uttering of a threat to cause death to Kevin Stewart, contrary to s. 264.1(2) Criminal Code;
XIV. Possession of a firearm while prohibited from doing so by reason of an order made under Section 109(1) Criminal Code, contrary to s. 117.01(3) Criminal Code;
XVII. Possession of ammunition while prohibited from doing so by reason of an order made under Section 109(1) Criminal Code, contrary to s. 117.01(3) Criminal Code; and
XVIII. Failure to comply with a probation order without reasonable excuse namely, keep the peace and be of good behaviour contrary to s. 733.1(1) Criminal Code.
I will now provide a brief narrative summary of the factual context.
Factual Background
4On April 25, 2019, in the early hours of the morning, Ottawa Police 911 received a call from Kevin Stewart. He advised that he had just fled the house that he shared with the accused who had just stormed into their home enraged, assaulted him, threatened to kill him, held a pistol to Mr. Stewart's head and then raised the gun and fired a shot over Mr. Stewart into the living room wall. Officers responded quickly and arrived on scene. They eventually determined that Mr. McGrath had left the scene prior to their arrival in the company of another man in that person's vehicle. A description of the two men and the vehicle in question was broadcast to other units. They were spotted in another part of town and their vehicle stopped by a single officer. That officer observed Mr. McGrath get out of the front passenger door of the vehicle, look back at the officer who was now out of his patrol car with drawn sidearm, and then lean his upper body back for several seconds into the front passenger area that he had just vacated. The officer could not see what the accused was doing. Mr. McGrath then obeyed the forceful directions of the officer and laid down on the sidewalk. Other officers arrived on scene. A .22 calibre handgun was found on the front passenger seat. There was one round in the magazine and one round in the chamber. The pistol was cocked and the safety not engaged. There was loose .22 calibre ammunition scattered everywhere throughout the cabin of the vehicle including on the front passenger seat and in the front passenger footwell. Twenty-nine rounds of that ammunition were found in Mr. McGrath's pants' pocket and two rounds were found on the sidewalk where he was arrested. Also found in the vehicle were quantities of both crack and powder cocaine as well as roughly forty pills of another drug.
5Mr. McGrath was subject to a ten-year s. 109 order dating to August 16, 2010, as a result of a conviction for assault with a weapon. He had been placed on probation for two years on February 20, 2018 when he was sentenced for having uttered a threat.
6For reasons that I explained during the course of my judgment, I did not accept Mr. Stewart's evidence about the assault and the use of the pistol at the house. I did find, however, that Mr. McGrath threatened him. I also explained, on March 27, the reasons for which I was dismissing the drug charges that arose from the search of the vehicle.
The Application of the Rule in R. v. Kienapple
7Both the Crown and the defence agree that some of the counts of which I have found the accused guilty are subject to the decision of the Supreme Court of Canada in Kienapple (1974). However, they are in partial disagreement as to which ones. Ms. Stein submits that I should stay the s. 88 offences (Counts I and II), the section 91(3) and 92(3) offences (Counts III and IV), as well as that pursuant to s. 94(2) (Count V). Mr. Boyce concedes only that Counts III and IV are subsumed by Count VI (s. 95(2)). I agree and I will therefore order the stay of Counts III and IV in these proceedings.
8The Supreme Court's decision has been summarized succinctly by the Ontario Court of Appeal in R. v. Rocheleau, 2013 ONCA 679 at paragraph 24:
This appeal engages the Kienapple principle, which provides that where the same transaction gives rise to two or more convictions on offences with substantially the same elements, the accused should be convicted only of the most serious offence: Kienapple; and R. v. R.K. (2005), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28. The Kienapple principle is designed to protect against undue exercise by the Crown of its power to prosecute and punish: R.K., at para. 29. It applies where there is both a factual and legal nexus between the offences: R. v. Prince, [1986] 2 S.C.R. 480. The requisite factual nexus between the offences is established if the charges arise out of the same transaction, whereas the legal nexus is established if the offences constitute a single criminal wrong: R.K., at para. 32.
9While the factual nexus between the s. 88(2) and s. 94(2) counts on the one hand, and the s. 95(2) count on the other is present, the subject matter being the same pistol and bullets, I find that the legal nexus is lacking. Section 95(2) does not require the element of dangerous purpose that is the gravamen of s. 88(2). Section 95(2) does not in any way prohibit the occupancy in a motor vehicle where it is known that a restricted firearm is present, the very essence of s. 94(2). Therefore, I will not stay Counts I, II, and V.
The Positions of the Parties
10The Crown is seeking a global sentence of five years (1825 days) less pre-sentence custody. This would consist of a four-year sentence for the s. 95(2) conviction and a one-year consecutive sentence for the two breaches of the s. 109 order; the sentences on the other counts would be concurrent.
11As of April 16, Mr. McGrath will have served 347 days. There is no dispute that he should receive an enhancement factor of 1.5:1 leading to a total of 520 days. However, Ms. Stein submits that due to the current COVID-19 pandemic, Mr. McGrath should receive a greater enhancement factor for the period from March 16 to today, to wit: 2:1. Mr. Boyce replies that generally the Court is bound by the statutory limit established in s. 719(3.1): "[d]espite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody" and while a greater factor can be utilized, the Ontario Court of Appeal has held that in order to do so, a Court must have evidence of the conditions of the pre-sentence incarceration and the impact of those conditions on the accused being sentenced (R. v. Duncan, 2016 ONCA 754).
12The only evidence before me in that regard was provided by the Crown and consists of an 'Information Sheet' prepared by the Government of Ontario and entitled "Institutional Services responses to COVID-19" and is dated March 25. It provides an overview of the situation in the institutions in the province, the actions and the policies and procedures currently being utilized to control the impact of the pandemic on the prison population. The Sheet includes the observation that "[g]iven the size of our population, [the number of inmates and staff that have tested positive represents] a very small risk factor". This has not been challenged by the defence nor have I been provided with any evidence from Mr. McGrath as to the impact of the pandemic and the institutional response to it on him personally. Any such evidence could have been adduced by means of an affidavit or viva voce testimony. Therefore, the enhanced pre-sentence custody will be calculated as 520 days and I understand the Crown to be seeking that the accused serve a further 1305 days.
13Ms. Stein submits that the appropriate sentence is three and a half to four years less pre-sentence custody. Expressed in days, her suggested range globally is 1277 to 1460 days. Less pre-sentence custody, this would represent further incarceration of 757 to 940 days. She points out that the mandatory minimum sentence that was attracted by the most serious charge, the s. 95(2), has been struck down. It is her submission that Mr. McGrath is in a 'time-served' situation for the offence of illegal possession of the loaded restricted firearm. In other words, it is the defence position that 520 days is an appropriate sentence for this count. She further submits that the balance of the counts should attract a combination of conditional (where available) and intermittent sentences. The suggestion is that the conditional sentence could be the maximum available as could the intermittent sentence. The whole would be followed by a lengthy period of probation.
14The Crown is also seeking a s. 109 order for life, the forfeiture of the seized firearm and ammunition, as well as a sample of Mr. McGrath's DNA. These ancillary orders were not contested by the defence.
Who is Edward McGrath?
15I did not order the preparation of a pre-sentence report given the current emergency. Ms. Stein did provide me with some information. Mr. McGrath is fifty-three years of age. He was born in New Brunswick and moved to Ottawa with his parents and siblings when he was five or six years old. I have been advised that one or both of his parents were alcoholics and that his father physically abused him. He was kicked out of the family home at the age of fifteen. He is a parent having had children by two different mothers. He was estranged from some or all of those children, however, over the past year, there has been a reconciliation with at least some of them. I noted during the course of the trial the presence in the court of people whom I have been advised are his friends, sister, and children. These people who were in more or less constant attendance, have obviously not been able to attend the past few appearances due to the new courthouse procedures put in place due to the pandemic.
16Ms. Stein advised me that Mr. McGrath does have an indigenous background. She was not able to provide me with any substantive details nor have I been provided with any culturally appropriate plan of care. I advised Ms. Stein that I would require such information before I would be able to properly apply Gladue-sentencing principles in this case (R. v. Macintyre-Syrette, 2018 ONCA 259). Not having been provided with such, I am unable to apply s. 718.2(e) in this case.
17Mr. McGrath developed a problem with cocaine. It is unclear to me when this became an issue, however, it clearly was a factor in his behaviour on April 25, 2019. The evidence called at the trial established quite clearly that he had been 'partying' heavily for several days leading up to this incident. To be clear, the evidence showed that cocaine played a lead role at the party. However, there are also indications that Mr. McGrath has some anti-social tendencies. I refer here to his criminal record:
| Date | Offence | Sentence |
|---|---|---|
| 1988-06-18 | Mischief | Absolute Discharge |
| 1993-02-10 | Assault Cause Bodily Harm | 90 days intermittent |
| 1995-07-13 | Over 80 | $300 + Drive Prohib. 12 mos. |
| 2005-08-29 | Utter Threats Fail to Comply Recog. X 2 | S/S + 12 mos. Probation (13 days pre-sentence custody) |
| 2007-02-01 | Fail to Comply Probation | $300 |
| 2007-10-17 | Fail to Comply Recog. x 2 | S/S + 12 mos. Probation |
| 2009-01-19 | Assault | 4 mos. Cond. Sentence |
| 2009-03-23 | Aggravated Assault [1] Utter Threat | 90 days intermittent |
| 2010-08-16 | Assault with a Weapon Assault Utter Threat | 90 days intermittent + 2yrs. Probation (34 days pre-sentence custody) |
| 2012-01-31 | Theft under $5000 | $250 |
| 2016-02-26 | Fail to Comply Undertaking Possession of Scheduled Substance | $300 $300 |
| 2016-06-09 | Possession of a Schedule I Substance | $400 |
| 2018-02-20 | Utter Threat | S/S + 2 yrs. Probation |
18I have not been advised that Mr. McGrath has had any treatment for substance abuse since he was detained. In fairness, I am not certain as to what therapies, if any, would have been available to him. I have had the opportunity to observe during the course of this trial that he appears to be appropriately groomed, is attentive to the proceedings, and is unfailingly polite with the Court.
Analysis
19The Supreme Court of Canada, in R. v. Lacasse, 2015 SCC 64 at paragraph 58, has remarked that "[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision." Section 718 establishes the fundamental purpose of sentencing as the protection of society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more enumerated objectives. Appellate authority has made it clear that that the primary sentencing objectives in cases of illegal possession of loaded restricted or prohibited firearms where the offender is engaged in dangerous criminal conduct must be denunciation and deterrence (e.g., R. v. Nur, 2015 SCC 15 at paragraphs 5 and 120, 2013 ONCA 677 at paragraph 206). However, this is not to say that the other objectives are of no force in the present matter. As was stressed in Lacasse at paragraph 4:
[o]ne of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.
20Section 718.1 mandates that the fundamental principle of sentencing is that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
21Section 718.2(a) requires a sentencing judge to take into consideration any relevant aggravating or mitigating circumstances relating to the offence or the offender. Furthermore, it establishes that:
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
22I find the following to be aggravating factors in this matter:
a. that Mr. McGrath possessed this pistol in a public place;
b. that he was engaged in a drug binge at the time;
c. that he has a significant criminal record including multiple convictions for violence;
d. while the fact that the pistol was loaded is part of the gravamen inherent in s. 95(2), I find especially egregious the fact that there was a round in the chamber, it was cocked, and the safety device was not engaged, the possession therefore was in the context of dangerous conduct; and
e. that the breaches of the s. 109 order were in the context of this dangerous conduct.
23I wish to dwell for a moment on the dangerous conduct. As I have already referenced, the only finding of guilt that I made arising out of the incident at the house itself was in relation to the uttering of a threat. I did not make any specific findings of fact that the pistol was present during the altercation between Mr. McGrath and Mr. Stewart. I can find only that the dangerous conduct occurred on Montfort Street at the motor vehicle. There is no evidence before me as to when Mr. McGrath cocked and readied the pistol to fire. He performed that action either prior to getting into the vehicle, while they were driving around, or as a result of being stopped by the police officer. The evidentiary record does not allow me to come to any conclusion. To state the obvious, each possibility is inherently dangerous.
24Mr. McGrath was found guilty after trial. Thus, he does not receive the benefit at sentence of the mitigation of a plea of guilt. However, the fact that he went to trial is not to be taken as an aggravating factor.
25There are but few mitigating factors in this case. Mr. McGrath has no prior firearms offences on his record. The custodial sentences that he has received in the past have all been of short duration and, for the most part, either intermittent in nature or served in the community. He clearly has the support of friends and family.
26In support of her position that Mr. McGrath is in a 'time served' situation with respect to the most serious of the offences, that pursuant to s. 95(2), Ms. Stein referred me to the recent decision of D.E. Harris J. in R. v. Kandhai, 2020 ONSC 1611, where a 'time served' sentence was meted out for one count of possession of a prohibited firearm with accessible ammunition and one count of a breach of a s. 109 firearms prohibition. Of importance to the Court's analysis was the effect of the COVID-19 virus:
[6] Most pertinent to mention for the immediate purposes today is the pandemic threatening us all. Although there is a risk of over-emphasizing it on sentence, the pandemic is nonetheless a significant factor.
27Mr. Kandhai, however, was in a very different sentencing context from that in which Mr. McGrath finds himself. First of all, Mr. Kandhai pleaded guilty. Secondly, he had already served almost three years and nine months of pre-sentence custody when calculated at the rate of 1.5:1. Thirdly, the Crown's position on sentencing was in the range of four to five years and thus Mr. Kandhai was "in the general neighbourhood of the Crown's position" (at paragraph 5). And finally, Harris J. had brought the matter forward from March 30 as it had just been announced on March 15 that the Superior Court was going to suspend all non-emergency, non-urgent matters until further notice commencing March 17; the sentencing occurred on March 16. We compare this to Mr. McGrath's situation. He was found guilty after trial. He has served only 520 days of pre-sentence custody where the Crown position on the most serious offence is 1460 days; it cannot be said that he is in the 'general neighbourhood' or anywhere close. Finally, the Ontario Court of Justice is still dealing with some in-custody matters, the present case being an example.
28While the decision of the Superior Court in Kandhai is indeed predicated to an extent on the existence of the pandemic, it does not stand for the proposition that all other sentencing principles and factors must be held in abeyance as the illness runs its course though our society. What it does stand for is the principle that where there are urgent exigent circumstances, an offender who has served most of an anticipated appropriate sentence can receive a lesser sentence to mitigate those circumstances. This was made patently clear by Harris J. in the last sentence of paragraph 7 of the decision: "[g]iven how much time he has served thus far in custody, it is in Mr. Kandhai's interest and the public's interest as well, that he be released at this point in time."[2]
29The defence position that 520 enhanced days are sufficient to satisfy the above-mentioned sentencing principles and factors is not supported at law. The well-known matter of R. v. Nur is instructive. Mr. Nur, although he did dispute the facts that the Crown wished to rely on in aggravation at sentencing and challenged the mandatory minimum sentence (2013 ONCA 677 at paragraph 7), pleaded guilty to a count of s. 95(2) thereby admitting that he had been in illegal possession of a loaded prohibited firearm outside of a community centre. He was 19 years-old at the time of his arrest. He had no criminal record and was attending school, had been employed part-time, and also had performed volunteer work. He had the support of his family. He was sentenced to one day further in jail after having served the enhanced equivalent of forty months pre-sentence custody. While the Court of Appeal did strike down the three-year mandatory minimum sentence, Doherty J.A., for the unanimous panel, stated the following at paragraph 206:
[n]or do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.
The majority of the Supreme Court of Canada (2015 SCC 15) agreed.
[5] This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.
30I note that sentences of approximately three and a half years have been the result where youthful adult offenders with no prior criminal convictions have been found guilty of s. 95(2) after trial: R. v. Marshall, 2015 ONCA 692, R. v. Mansingh, 2017 ONCA 68, R. v. Mahamet-Zene, 2018 ONSC 1050. Ms. Stein has referred me to the decision of the Ontario Court of Justice in R. v. Holman, 2017 ONCJ 727, where Feldman J. sentenced a 26-year old after trial to three years despite the fact that Mr. Holman was not a first-time youthful offender. Of great importance to the Court was that "Mr. Holman has shown himself to be a candidate for rehabilitation and reintegration into the community" (at paragraph 28). Evidence in that vein is absent from the matter before me.
31I have observed Mr. McGrath's friends and family attending during the course of this trial. Mr. McGrath has been nothing but respectful. The past year of enforced sobriety has no doubt been very beneficial for him. But the main emphasis in the sentencing of an offender for these offences must be denunciation and deterrence. As stated by Madam Justice Molloy of the Superior Court of Justice in [R. v. Ferrigon, 2007):
[g]uns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.
32On the basis of the foregoing, I find that Mr. Boyce has articulated the appropriate sentence for Count VI, the possession of a loaded restricted firearm, to wit: four years or 1460 days. I turn now to the breaches of the s. 109 firearms prohibition.
33It is common ground here that any sentence pursuant to s. 117.01, the section that deals with breaches of s. 109 orders, must be consecutive to the sentence for the actual possession. As noted above, the Crown is seeking a sentence of one year. The defence position is for a ninety-day intermittent sentence.
34I am of the opinion that the Crown position of one-year consecutive is what is required by the seriousness of these breaches. Mr. McGrath breached the Court's order by possessing a handgun and again by the possession of numerous rounds of ammunition for that pistol. The pistol was loaded and ready to fire. There were rounds of .22 calibre ammunition scattered throughout the vehicle. He was found with twenty-nine rounds on his person. Rounds were falling out of his pocket and later picked up by the arresting police officers. The breaches are egregious. The two such breaches will be concurrent to each other but consecutive to the sentence for the s. 95(2) count.
35The Crown has taken the position that as a result of the totality principle, the sentence for Count V (s. 94(2) – occupy motor vehicle knowing that there was a restricted firearm in it) should be concurrent to that of Count VI (s. 95(2)). I agree and sentence Mr. McGrath to 730 days concurrent to all other counts.
36Counts I and II (the possession of a weapon and ammunition dangerous to the public peace), given that the element of dangerousness arises from the fact that the pistol was loaded, cocked, and the safety not engaged are serious. The sentence will be 365 days on each, concurrent to each other and concurrent to the other counts.
37Count XII, the utter threat. As was clear from my judgment, I did not accept much of the evidence of Mr. Stewart. I did find Mr. McGrath guilty of this count but that was based on the evidence of the next-door neighbour who overheard the threat. I rejected Mr. Stewart's evidence that the pistol was fired at that time and I made no finding that it was even brandished during the course of the altercation. I note the sentences received in the past by Mr. McGrath for this offence. I am of the opinion that a sentence of 40 days concurrent to the other counts is appropriate.
38The last count is the breach of the keep the peace and be of good behaviour condition of the probation order that bound Mr. McGrath's conduct (Count XVIII). The appropriate sentence is one of 90 days concurrent to the other counts.
39The final issue that I must address is what effect, if any, should the current and on-going COVID-19 pandemic have on the quantum of sentence. I have earlier rejected the defence submission that I should grant a super-enhanced credit for the pre-sentence custody served by Mr. McGrath on the ground that there was no evidentiary basis for me to do so. What I am addressing now is different. It is the issue of the circumstances under which Mr. McGrath will be serving my sentence going forward.
40The effects of the current pandemic on the population of Canada are notorious. We are all subject to the normative social procedures referred to as 'social distancing' or 'physical distancing' in an attempt to mitigate the spread of the illness. The Government of Ontario released on April 3 their projections of the range of anticipated deaths due to COVID-19. The calculations are from three to fifteen thousand deaths depending on a number of factors, the most important of which is physical distancing. It is understood that these numbers are a 'best guess' given the wide number of possible variables.
41Mr. McGrath is no less vulnerable to the spread of the pandemic than offenders who commenced serving their sentences prior to the outbreak of the illness. But he is also not in a worse position. A reduction in the quantum of sentence predicated solely on the existence of the COVID-19 pandemic at the time of an offender's sentencing would be arbitrary; persons already serving sentences would not be able to benefit even though they are facing the exact same level of risk.
42A reduction in Mr. McGrath's sentence due to the future consequences of COVID-19 on the serving of his sentence therefore must arise from his unique circumstances in the context of the current emergency. Like the situation that arises when an offender seeks the application of an enhancement factor to pre-sentence custody greater than 1.5:1, Mr. McGrath could present me with evidence to explain the likely issues that will arise. He did not do so during sentencing submissions but can hardly be faulted for this, however, given the unusual situation. Therefore, several days after hearing the sentencing submissions, I had my assistant contact Ms. Stein and Mr. Boyce with this request for specific information:
During the course of submissions last week, mention was made in passing to Correctional Services Canada not transporting prisoners who have been sentenced to Federal time to the penitentiary thereby leaving those prisoners in provincial jails. Can counsel please advise Justice Berg whether or not this is indeed the case. If that is the situation that Mr. McGrath will find himself in after April 16, Justice Berg would like to know:
A) How many people Mr. McGrath is sharing his cell with at the present time; and
B) Whether he would have a cell to himself in the penitentiary?
Both counsel responded. I learned that transportation from provincial jails to the penitentiary is now occurring every second week as opposed to the pre-pandemic weekly schedule. Mr. McGrath shares a cell at the provincial detention centre with one person. It seems that at the penitentiary, he will either have a cell to himself or possibly share a cell with one other person. Nothing in this scenario warrants a reduction in the quantum of sentence. I further note that Mr. McGrath is not elderly and there is no evidence before me that he has any pre-existing medical condition that would put him at greater risk than the general population of dying or serious harm should he become infected with the COVID-19 virus.
43I am aware of the line of cases where the presence of the pandemic was a significant factor at the review of orders of detention (e.g., R. v. J.S., 2020 ONSC 1710, R. v. T.L., 2020 ONSC 1885, R. v. King, 2020 ONSC 1935). Those cases, however, are informed by the presumption of innocence, a factor upon which Mr. McGrath can no longer rely. COVID-19 was a significant factor in the very recent bail pending appeal decision of the Ontario Court of Appeal in R. v. Kazman, 2020 ONCA 251. Mr. Kazman was released and obviously the presumption of innocence was not part of Harvison Young J.A.'s consideration. But on the other hand, there was evidence that the appellant has asthma, respiratory issues causing shortness of breath, and a heart condition (at paragraphs 8 and 17) and as the Court of Appeal noted at paragraph 21"[g]iven the applicant's health issues amidst the COVID-19 situation, and the limited bail period sought, I am persuaded that the applicant's detention is not necessary is in the public interest."
Conclusion
44Mr. McGrath, I sentence you as follows, and commencing with the most serious of the charges:
Count VI – Possession of loaded handgun s. 95(2): 1460 days
Count I – Possession of handgun for a purpose dangerous s. 88(2): 365 days concurrent
Count II – Possession of ammunition for a purpose dangerous s. 88(2): 365 days concurrent
Count V – Knowingly occupy motor vehicle with a handgun s. 94(2): 730 days concurrent
Count XII – Threaten death s. 264.1(2): 40 days concurrent
Count XIV – Breach of s. 109 order re firearm s. 117.01(3): 365 days consecutive
Count XVII – Breach of s. 109 order re ammunition s. 117.01(3): 365 days concurrent to Count XIV
Count XVIII – Breach of probation order s. 733.1(1): 90 days concurrent
45The global total sentence is 1825 days. From this total, I subtract the pre-sentence custody of 347 days at 1.5:1 for an enhanced total of 520 days reducing the total sentence remaining to be served to 1305 days or just over three and a half years.
46There will be the following ancillary orders: a s. 109 order for life, an order for the forfeiture of the seized firearm and ammunition, as well as an order that a sample of Mr. McGrath's DNA be taken.
Released: April 16, 2020
Signed: Justice Berg
Footnotes
1It is agreed that while the CPIC print-out refers to this charge, Mr. McGrath may have actually pleaded guilty to a lesser form of assault.
2The reasons in 2020 ONSC 1611 dated March 16, 2020 are not Harris J.'s full reasons which had yet to be released at the time that Mr. McGrath was sentenced.
