Court Information

Ontario Court of Justice

Date: December 24, 2020

Court File No.: 19-126002371

Toronto Region – Old City Hall

Parties

Between:

Her Majesty the Queen

— And —

Samuel Marsan

Before the Court

Justice: H. Pringle

Heard: July 9, 2020; September 16, 2020; October 29, 2020 (in writing)

Oral Reasons for Judgment released: December 22, 2020

Written Reasons for Judgment released: December 24, 2020

Counsel

For the Crown: Nicole Bailey

For the Accused: Robert Chartier

BACKGROUND OF THE OFFENCES

[1] While driving along Highway 400, the accused's car collided with an unmarked OPP car. His car was towed to a Toronto police detachment for accident investigation. While there, the accused lied about his identity to the investigating officer. He claimed to be his twin brother and corroborated his lie with a photograph of his brother's driver's licence.

[2] Police began taking photos of the defendant's damaged rental car. This led to the discovery of cannabis inside. The evidence of cannabis was consistent with personal use, but grounded a search of the car under s. 12 of the Cannabis Act. Inside the trunk was the accused's satchel. Inside that satchel was a loaded Smith and Wesson handgun.

[3] The gun was unchambered, but its overcapacity magazine was loaded with 13 rounds of ammunition. It traced back to a 2018 firearm theft in the United States. The accused, while not tied to that theft, was not legally permitted to carry a firearm.

[4] Once the firearm was discovered, and upon his arrest, he admitted his true identity to police. There were two people in that car with him. The front passenger was the accused's girlfriend. She knew nothing about the firearm in the trunk. Their relationship later dissolved as a result of these firearm charges.

[5] The back-seat passenger, Mr. J., stands charged with separate firearm offences. Those charges stem from his alleged possession of an unloaded assault rifle, found in the same vehicle. The second gun was found days after the car was towed to an impound lot, inside a duffel bag behind the backseat. This duffel bag had an airport tag in Mr. J's name, and someone sharing the same first name as Mr. J. called the impound lot to inquire about accessing the car.

[6] The presence of a second gun in the car is highly suspicious. However, given the wording of the agreed facts underlying the accused's plea, and the requisite burden of proof, I concluded the presence of this second gun was not available as an aggravating factor.

BACKGROUND OF THE OFFENDER

[7] The accused's antecedents do not logically lend themselves to traveling about in illegal possession of a loaded firearm. He is now 22 years old. When he was 16, he was robbed at gunpoint. He demonstrated signs of PTSD afterwards. Refusing his parents' urging for psychological follow-up, he began carrying a small knife for protection.

[8] The accused succeeded in business at a young age. While still a teenager, he and his brother began working in construction and in the heating/cooling industry. They saved up enough money to start a small chain of 4 sushi counters, which operated inside large grocery stores. This was a major achievement. But the accused worked incessantly, which soon led to a 3-month breakdown from exhaustion.

[9] He began again, starting his own successful construction company. This, too, led to overwork and then to a second burnout at age 20. Meanwhile, the accused had begun using marijuana to alleviate stress and anxiety. This use changed from stress relief into a daily habit, and a need instead of a choice. His parents took note of the developing addiction, around the time that their son moved from Quebec to Ontario and cut them out of aspects of his life.

[10] The accused became somewhat nomadic, living in various places. While in Sudbury, he was victimized in a serious physical attack, suffering a head injury and a dislocated shoulder. He took a bus back home to Quebec, where his parents again noticed signs they attributed to PTSD. He would, for example, need to sleep with the lights on. They again urged their son to start counseling. But he seemed to stabilize, started a serious relationship, and moved out of their home again.

[11] Shortly afterwards, the accused was arrested for these firearm offences. He was 20 years old at the time of his arrest. He has explained the gun was kept for protection and provided some context. I have accepted this explanation and it does distinguish his case from cases where gun possession was linked to extrinsic criminal activity. But no matter the reason, the gun was possessed in public and readied for use, if need be.

[12] After his arrest, the accused moved back home with his stable, supportive parents. He has done exceptionally well on bail. His father has attested to his son's respect for, and compliance with, his restrictive bail terms. His mother wrote of her son's recognition that "he needed to take this opportunity and transform the rest of his life".

[13] The accused has meaningfully addressed his substance abuse while on bail. His addiction, despite being unconnected directly to the offences, was part of a general pattern of behaviour that led him here. In May 2020, he underwent a specialized assessment at the Joliette Addiction rehabilitation centre. He attended six weekly follow-up meetings in the summer of 2020. A letter from the Joliette Addiction rehabilitation centre summed up the accused's rehabilitative progress, stating:

Your commitment, openness and transparency demonstrate your willingness to keep the changes made to your lifestyle.

[14] This summer, the defendant also volunteered 107 hours to "Project Compassion", an organization assisting to feed families in need during the pandemic. He registered in online counseling directed at coping with anxiety disorders. The accused's anxiety does seem linked to his irrational decision to possess a handgun.

[15] Finally, while on bail, the accused decided to plead guilty despite strong triable issues. His father explained:

Between January and April, 2020, we had a lot of discussions with Samuel, about what he did, where he wanted to go and which part he wanted to be in our society. He then decided to plead guilty to have prohibited weapon and other charges. He called you, Robert [defence counsel], to face the consequences of his acts. He then told us that the weight came out of him, by making that choice, to change the plea. We repeatedly told him that truth is always better, and that we were proud of him. Not proud of what he did, but by recognising what he did, that was the first part of his recovery.

[16] The accused pled guilty to offences under s. 95 and s. 92 of the Criminal Code. I accept he is immensely remorseful for his actions and there can be no doubt he has accepted full responsibility for them. He has told the court, on more than one occasion, that his guilty plea was motivated by his belief that it was simply the right thing to do.

[17] During the first JPT held in this case, Mr. Chartier sought a Crown position upon plea. Despite trial dates being targeted for all three defendants to minimize delay, he continued to work towards resolution. This continued throughout the late winter and early spring of 2020. At that point, the resolution process was slowed by the arrival of the COVID-19 pandemic.

[18] There were strong triable issues in this case. There was a viable alternate suspect inside the same car, who was in apparent possession of a loaded firearm inside a bag with his name on it. The accused chose to forego his right to have the Crown prove its case against him beyond a reasonable doubt. It was obvious to me that he chose to do this because he believed it would begin to restore what he did wrong. In all the circumstances, the accused's plea deserves the full mitigating effect an early, remorseful guilty plea typically attracts.

OBJECTIVES OF SENTENCING

[19] Every sentence imposed must fairly reflect the seriousness of the offence committed and the offender's degree of responsibility in committing it. Every sentence imposed must protect society and contribute "to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sanctions" which reflect particularized objectives: s. 718. These are:

• Denunciation of illegal conduct and harm done to victims and/or the community;
• Deterrence of the offender, and like-minded individuals, from future crime;
• Separating offenders from society where necessary;
• Assisting in rehabilitation;
• Repairing harm done to the community and/or victims;
• To promote a sense of responsibility in offenders and acknowledge the harm done by breaking the law.

[20] As observed by Schreck, J., in R. v. Elvira, 2018 ONSC 7008 at para. 11:

The various sentencing objectives are often in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be inimical to the rehabilitation of the offender and vice versa. In such cases, the competing objectives must be balanced in a way that respects the principle of proportionality. There is ultimately no one correct way to achieve this balance, which is why sentencing judges are usually given a wide latitude in determining the appropriate sentence in any given case.

[21] The accused illegally possessed his firearm to protect himself from perceived harm. This does not excuse it and it does not mitigate it. The moral culpability inherent in committing this offence remains high, no matter the reason for committing it. The gun was loaded, meaning the accused was prepared to use it. There is no "safe" possession of illegal firearms on the streets of Toronto. It is a most serious offence.

[22] As Justice Trafford said in R. v. Villella at para. 46:

The importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct such as trafficking in narcotics, where the use of the firearm is possible or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement amongst peers, misguided though they are, by the conventional norms of our society. The possession of a handgun may lead to a random or intentional act of violence, including the death of innocent bystanders in an area of any confrontation. Unforeseen and provocative circumstances can lead to a senseless act of violence and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution, and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as especially serious crimes.

[23] When it comes to sentencing a person for gun possession, the sentence must first and foremost give effect to the objectives of deterrence, of denunciation, and of public protection: R. v. Marshall, 2015 ONCA 692 at para. 49. The accused committed a most serious criminal offence. Any person who echoes his behaviour must expect to be separated from society for a meaningful period of time.

[24] This is true even where the offender, like the accused, is young and of prior good character. Yet a fit sentence must express the seriousness of the offence and the offender's degree of responsibility in committing it, while keeping the offender's hope for a prosocial future intact. The offender must see rehabilitation in the community as a realistic future goal. The sentence of a youthful first offender must always strike this balance: R. v. Priest (1996); R. v. Borde (2003).

APPROPRIATE RANGE OF SENTENCE

[25] The accused's sentence must be similar to sentences imposed in like situations. In this analysis, assessing range of sentence is of import. The Crown's position fairly acknowledged the accused's conduct falls on the lesser end of the "true crime" spectrum of gun offences. The Crown sought a sentence of two years less one day in jail for the s. 95 offence, and one year concurrent for the s. 92 offence. Defence counsel argued for two years less one day to be served in the community, and sought the other count stayed pursuant to Kienapple.

[26] In R. v. Nur, 2015 SCC 15, the Supreme Court struck down a mandatory three-year sentence for firearm possession. Despite this, McLachlin J. observed at para. 82 that three years of jail was still a fit sentence in many cases, because:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so.

[27] The accused's criminal conduct fell under the rubric of "true crime". But still, his offences differ from cases where gun possession connected to other criminal activity. Here, there is no evidence of drug trafficking, or gang activity, or violence outside of that inherent in carrying a loaded gun. Defence counsel argued that the accused's sentence should reflect this distinction. I agree, and in this regard adopt the conclusions of Campbell J. in R. v. Boussoulas, 2015 ONSC 1536 at para. 24 (S.C.J.) and McCombs J. in R. v. Shomonov, 2016 ONSC 4015 at para. 7.

[28] Even on the "true crime" end of the spectrum, range of sentence remains broad. In R. v. Nur, a youthful offender with no criminal record possessed a loaded handgun in public. In the Court of Appeal decision at para. 109, Doherty J.A. observed that different judges, correctly applying the law to the exact same facts, could properly impose disparate but fit sentences:

I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years.

[29] Cases from our community exemplify this point well:

• R. v. Nur, 2015 SCC 15, where the SCC struck down the mandatory minimum but declined to interfere with the 40-month sentence imposed. Offender was 19, had no criminal record, had possessed the loaded firearm in public and discarded it under a car when approached. The firearm offence was unconnected to other specified criminal activity. He had pled guilty in the SCJ, where his sentencing included a Gardiner hearing to prove aggravated facts;

• R. v. Marshall, 2015 ONCA 692 where the COA upheld a sentence of 3.5 years. The offender was 23, had no criminal record, and had left the loaded firearm in a satchel at his friend's house while stepping out for lunch. The firearm offence was connected to cocaine trafficking. He had a contested SCJ trial;

• R. v. Mansingh, 2017 ONCA 68, where the COA upheld a sentence of 43 months. The offender was "young", had no criminal record, and discarded the loaded firearm on the ground during flight from police. The firearm possession offence was connected to marijuana trafficking. He had a contested SCJ trial;

• R. v. Mark, 2018 ONSC 270, where Campbell J. imposed 3 years for a s. 95 offence and 1 year consecutive for drug offences. The offender was 22, had no criminal record, and had his loaded firearm with him in his car. He was dealing crack cocaine out of that car at the time. He did not contest guilt after an unsuccessful Charter argument in the SCJ;

• R. v. Thavakularatnam, 2018 ONSC 2380, where Akhtar J. imposed 40 months on a 20 year old offender with no "adult criminal record". He was carrying the loaded firearm in a mall. While there was no other connected criminal activity apparent, he was on bail and had injured police in an attempt to flee. He pled guilty after an unsuccessful Charter argument in the SCJ;

• R. v. Mahamet-Zene, 2018 ONSC 1050, where Akhtar J. imposed 42 months on a 24 year old offender with no criminal record. The loaded firearm had a bullet in the chamber, and the offender was carrying it in a backpack he left hanging off a fence while chatting with friends on the street. He had a contested SCJ trial;

• R. v. Elvira, 2018 ONSC 7008, where Schreck J. imposed 3 years for gun possession, 1 year concurrent for a cocaine offence and 2 years consecutive for a heroin offence. The offender was 24 years old, had no criminal record, and was in possession of a loaded firearm found in his shared apartment on a table in plain view. The possession was connected to cocaine and heroin dealing. He had a contested SCJ trial;

• R. v. Smickle, 2014 ONCA 49 where the COA overturned a CSO and imposed 2 years less one day jail. The offender was 27 years old and had no criminal record. The gun was loaded and was in the offender's physical possession when police entered the apartment. There was no connection to other criminal activity, and the defendant had a contested SCJ trial;

• R. v. Shomonov, 2016 ONSC 4015 where McCombs J. imposed 21 months jail on a 29-year old first offender. There was no other criminal activity connected to the firearm possession, but there were two firearms found in the offender's work unit inside a strip mall. Both guns were unloaded but had ammunition readily accessible. McCombs J. accepted the offender's possession was to protect himself from robbery. He noted, at para. 7, that this reason was not a mitigating factor but still relevant to sentence;

• R. v. Bokhari, 2018 ONCA 183, where the COA declined to reduce 14 months jail imposed upon an offender with a shotgun hidden in his home. The offender was sentenced after a contested OCJ trial;

• R. v. Boussoulas, 2018 ONCA 222, where the COA declined to reduce 21 months jail imposed on a 65-year old offender with no criminal record. The illegal gun was loaded and in his home. There was no other connected criminal activity. The offender's possession was to protect himself and his family from threats made against them. He pled guilty after an unsuccessful SCJ Charter application;

• R. v. Downey, 2017 ONCA 789, COA upheld 2 years less 1 day imposed after a contested SCJ trial. Weapons importing (3 firearms, magazines, ammunition);

• R. v. Cadienhead, [2015] O.J. No. 3125, 2 years less 1 day imposed for a young male, on probation, carrying a loaded gun, serial number defaced, on a residential street. Sentence [18 months firearm, 6 months breach] was imposed after an SCJ Charter application;

• R. v. Hassan, 2017 ONSC 4570, possessed firearm in car and ammunition in pocket, was on bail at time, minor criminal record, 2 years less 1 day CSO following 22 days PSC and 35 months restrictive bail terms, found guilty after unsuccessful SCJ Charter application;

• R. v. Dalton, 2018 ONSC 544, guilty plea in the SCJ to possess loaded restricted firearm hidden in his family home, kept it to "protect" his son, 1 year CSO on top of the equivalent of 15 months presentence custody, dated criminal record including a firearm offence;

• R. v. Rajabi, October 16, 2020, unreported, SCJ guilty plea to possessing a loaded firearm, joint submission, judge referenced low end of range as including 1 year, equivalent of 353 days of presentence credit plus 2-month CSO imposed;

• R. v. Doyle, [2015] O.J. No. 4782, guilty plea in OCJ. 22 months for possessing loaded firearm in a public park. Weapon carried for protection but still was "true crime", dated violent criminal record;

• R. v. Filian-Jimenez, 2014 ONCA 601, 18 months of jail imposed after early guilty plea in OCJ upheld by Court of Appeal. Offender kept loaded firearm for protection in home. Had turned life around and repudiated gang membership.

[30] My review of the relevant authorities led me to conclude:

i. cases where a first offender's gun possession connects to other criminal activity can attract a range of between 3 and 5 years: see R. v. Elvira at para. 27; R. v. Graham, 2018 ONSC 6817 at para. 38.

ii. the COA in Smickle suggested a lower range for gun possession offences unconnected to other criminal activity. At para. 19 they said "[o]ffences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of a sentence at or very near the maximum reformatory sentence, even for first offenders";

iii. ranges of sentence are intended to serve as guidelines, not straitjackets, and are meant to assist sentencing judges: see R. v. Lacasse, 2015 SCC 64; and

iv. the accused's early, remorseful plea of guilt in the Ontario Court of Justice distinguished his case from many others.

AGGRAVATING AND MITIGATING FACTORS

[31] Within the appropriate range of sentence, aggravating and mitigating factors must be balanced. Factors which serve to aggravate the accused's sentence are:

• During the accident investigation, he lied to police about his name, and provided someone else's identification to corroborate that lie;
• The firearm was loaded, and with 13 rounds of ammunition at that;
• The overcapacity magazine required to hold that number of bullets;
• The accused had carelessly, recklessly stored his firearm inside a satchel when it was found;
• He possessed this firearm in circumstances that posed risk to the people inside the car and to the public – inside a moving car on a busy highway; and
• The incessant, senseless victimization our community has suffered, and continues to suffer, because of gun crime.

[32] Factors which tend to mitigate the accused's sentence are:

• His youth at the time he committed the offence;
• The absence of any prior criminal record;
• His strong work ethic, evidenced at a very young age and continuing to this day;
• The strong community support that surrounds him;
• The proactive steps he has taken towards rehabilitation, including seeking treatment for substance abuse and anxiety;
• His positive behaviour on bail, which lent itself to the conclusion that offending criminally is out of character;
• The 107 hours he invested in community service during the pandemic, which is some contribution towards the goal of restoration; and
• His early plea of guilt in the Ontario Court of Justice.

SENTENCE IMPOSED

[33] After balancing these factors, I have decided that 18 months in jail will give proper effect to the principles of sentencing in this case. The Court of Appeal, in R. v. Filian-Jimenez, 2014 ONCA 601, upheld 18 months jail for possession of a loaded firearm. While this quantum was "lenient", like the accused, the offender entered a very early guilty plea in the Ontario Court of Justice. He kept a loaded firearm in his home, for protection, and by the time of sentencing had turned his life around and repudiated gang membership.

[34] From this, I discern that 18 months in jail can, and has, properly achieved the objectives of denunciation and deterrence in similar circumstances. A sentence at the low end of the range is appropriate in the accused's case, given his youth, his prior good character, his strong rehabilitative prospects, and his early guilty plea in the Ontario Court of Justice.

[35] Sentences imposed after an early guilty plea should meaningfully articulate full mitigation. This may appear "lenient" when compared to post-trial sentencings in the Superior Court of Justice. But, in my view, this difference is simply the effect of a proper expression of the mitigating, and distinguishing, effect of an early guilty plea. Eighteen months is proportionate for this offence and this offender.

[36] I am not ordering the accused to serve this sentence in the community. The statutory test for a conditional sentence was not met, despite the quantum leaving open this possibility. I was also satisfied, given the quality of community support the accused is lucky to have enveloping him, that a CSO would not endanger community safety.

[37] But I found a CSO inconsistent with the fundamental purpose and principles of sentencing set out in ss. 718 through 718.2. I adopt, without repeating, the reasons why Campbell J. rejected a CSO in R. v. Boussoulas at para. 30. I simply could not reconcile the objectives of denunciation and deterrence with a community-based sentence for driving around Toronto armed with a loaded illegal firearm.

[38] Further, the COVID-19 pandemic did not, after much anxious thought, change this conclusion. The test for a conditional sentence remained unmet, and the fit sentence for the accused's offending remained 18 months of incarceration.

COLLATERAL CONSEQUENCE AND COVID-19

[39] COVID-19 did not affect my conclusion that a CSO was inappropriate. However, it retained relevance as a collateral consequence. More specifically, the level of hardship the accused is meant to experience during a jail sentence will be exacerbated by serving his time during a worldwide pandemic.

[40] The ongoing pandemic has proven to be an indiscriminate killer. It takes the elderly, the young, the weak, the strong. There is no proven available protection, other than isolation, social distancing, wearing masks, and sanitization: see R. v. Morgan, 2020 ONCA 279; Affidavit of Dr. Aaron Orkin dated May 20, 2020.

[41] Like the rest of the world, the inside of a jail can be safe one week and the subject of an outbreak in the next. There is no "Information Note" that can predict the future of this pandemic. Much has been written, and compellingly so, about the potential impact of COVID-19 on incarcerated persons: see R. v. Hearns, 2020 ONSC 2365; R. v. M.W., 2020 ONSC 3513; R. v. D.D., 2020 ONCJ 218. I agree with these cases, and wholeheartedly adopt their conclusions.

[42] For me, the relevance of COVID-19 to the accused's incarceration comes down to this. While in jail during the pandemic, the accused will not be free to isolate, social distance, and sanitize in any manner he wishes. He cannot choose where he lives, or who he lives with, or how many people he lives with. He cannot step outside to escape re-circulated air when he wants to.

[43] Neither can his family and friends visit him whenever they choose. Even if the jail hypothetically (and improbably) put no limitations on visits, his family's movements about society remain limited by public health mandates.

[44] There will be a physical risk of contracting this disease, while in a jail populated with strangers and where inmates and staff come and go. There will be an increased restriction of liberties, such as visits, programs, and fresh air. There will be the psychological impact resulting from that. There will be an increase in isolation, a consequence that many outside jail find difficult to cope with.

[45] I am sentencing the accused to incarceration during a singular worldwide crisis. I find the increased hardship in this fact to be a collateral consequence, relying squarely on Pomerance J.'s compelling reasons in R. v. Hearns at paras. 17-24. To reflect this extraordinary, unusual hardship, I have reduced the 18-month sentence by an additional 4 months.

[46] I am satisfied that this sentence remains true to the fundamental purpose of sentencing. I am satisfied that this sentence remains true to the objectives of sentencing, including denunciation and deterrence. I am satisfied it remains within an appropriate range. In so concluding, I have relied on all the jurisprudence provided to me, some of which supported a sentence as low as one year as being fit.

[47] The defendant's sentence will reflect time served in presentence custody and under a restrictive house arrest. From his arrest to March 2020, the defendant was only permitted outside his residence in the direct and continuous company of his surety. He was then subject to a 9 pm curfew from March 2020 until July 2020. The 14 months the accused has to serve will be reduced by credit for presentence custody and Downes credit.

[48] The accused will also serve three years of probation. The maximum length of probation is necessary to best serve the objective of public protection, as well as to support his continued rehabilitation.

[49] Finally, and despite having read these reasons into the record, I will adjourn the formal imposition of sentence to permit the defendant time to put his affairs in order. In the interim, counsel can discuss what terms of probation would best serve both the accused and the community. At the next court date, I will formally address quantum of presentence/Downes credit, the ancillary orders, probation terms, and Kienapple.

[50] During the course of this case, Ms. Bailey and Mr. Chartier consistently exemplified the highest traditions of the bar. I am grateful to both counsel, for their preparation, their professionalism, and their fairness to one another.

Footnotes

[1] These reasons reflect sentence for the s. 95 offence. I am staying the other count pursuant to Kienapple: see R. v. Wright, 2018 ONSC 3593 at para. 51 and R. v. Mahamet-Zene at para. 23.

[2] See West, J.'s comprehensive review in R. v. Cook, 2020 ONCJ 374 at para. 51.

Released: December 24, 2020

Signed: Justice H. Pringle