ONTARIO COURT OF JUSTICE

DATE: 2021 06 24

COURT FILE No.: Toronto 19-15002429, 20-55003244

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHOMARI SAMUEL CLARKE-BROWN

Before Justice Derek Ishak

Heard on May 14, 2021

Reasons for Judgment released on June 24, 2021

Counsel: Gus Kim, for the Crown David Newton, for the accused Shomari Samuel Clarke-Brown

D. ISHAK J.:

I. Overview

[1] Mr. Clarke-Brown was found guilty of five offences involving the possession of a loaded handgun after trial. Convictions will be entered on Count 4 (s. 95(1) of the Criminal Code) and Count 5 (s. 86(1) of the Criminal Code). The balance of the counts will be stayed pursuant to the rule in R. v. Kienapple, [1975] 1 S.C.R. 729.

[2] On May 14, 2021, Mr. Clarke-Brown plead guilty to one count of failing to comply with his release order contrary to s. 145(5)(a) of the Criminal Code.

II. Factual Background

a. Circumstances of the Offence

[3] On April 4, 2019, at 6:52 a.m., police executed a search warrant at 121 Humber Avenue, apartment 410, in the City of Toronto. Upon entry, Officer MacLean spotted Mr. Clarke-Brown in the living room and, believing he was trying to flee, jumped onto his back. As they fell to the ground, Mr. Clarke-Brown threw a loaded firearm towards the living room windows. The gun struck the glass causing a loud boom. Officer Maclean, believing something had been thrown out the window, called out to his fellow officers. As Mr. Clarke-Brown struggled on the ground with Officer Maclean, Detective Cash located a loaded 9mm handgun on the floor directly beneath the window. Shortly thereafter, Mr. Clarke-Brown was subdued and arrested.

[4] On August 7, 2019, Mr. Clarke-Brown was released, after a bail review, on a house arrest release order.

[5] On July 9, 2020, police attended the home of Mr. Clarke-Brown’s mother to conduct a compliance check. She advised officers her son was with his other surety. Within that same hour, police attended the second surety’s address, however, Mr. Clarke-Brown was not there. Police then attended both surety addresses simultaneously and established Mr. Clarke-Brown was not with either of his sureties. A warrant was issued for his arrest.

[6] On November 15, 2020, police executed a search warrant at 2 Sunnybrae Crescent in the City of Toronto. Mr. Clarke-Brown was located within the unit without either of his sureties. He was arrested and duly charged.

[7] Mr. Clarke-Brown has been in custody since his arrest on November 15, 2020.

b. Circumstances of the Offender

[8] Mr. Clarke-Brown is 24 years old and has no criminal record. At the time of the initial offence he was 22 years old.

[9] Mr. Clarke-Brown is a Canadian citizen and the eldest of six children. His parents parted ways when he was five years old. He was raised by his mother with his father being mostly absent during his formative years.

[10] His mother stated to the author of the pre-sentence report (“PSR”), that she did everything she could as a young mother to provide her son with a stable and positive upbringing with lots of opportunities to excel. She enrolled him in numerous community programs as a child including swimming, skating, karate, and hockey. Within that same report, Mr. Clarke-Brown described his childhood as “happy”, “positive” and “enjoyable”.

[11] However, when Mr. Clarke-Brown addressed the Court, he stated he had a difficult and traumatic upbringing which included bullying, having few friends and the odds being stacked against him.

[12] Mr. Clarke-Brown completed his Grade 9 education and commenced Grade 10 in an alternative high school in reason of his being suspended. When a teenager, Mr. Clarke-Brown lost his grandmother to cancer and a friend to gun violence. Counsel advised these tragic events contributed to Mr. Clarke-Brown’s decision to leave school.

[13] Mr. Clarke-Brown is now interested in completing his high school degree, however, in reason of the pandemic and his current incarceration, this has been placed on hold.

[14] Upon his release from jail in August 2019, Mr. Clarke-Brown began working for Triple M Glass – a glass manufacturing company. Mr. Clarke-Brown’s supervisor described him as punctual, reliable and extremely hard working. His supervisor further stated in his letter to the Court that Mr. Clarke-Brown could resume his position as a glass installer with the company upon his release.

[15] Mr. Clarke-Brown does not suffer from any substance abuse issues, nor has been diagnosed with any mental health issues. However, counsel for Mr. Clarke-Brown stated his client may suffer from dyslexia. It is also likely Mr. Clarke-Brown continues to struggle with the death of his grandmother and friend during his teenage years.

III. Position of the Parties

[16] In relation to the unlawful possession of the loaded handgun, the Crown submits Mr. Clarke-Brown should be sentenced to a period of incarceration of 40 months, less his pre-sentence custody, followed by three years of probation. The Crown argued the loaded and readily accessible firearm, the reckless discarding of the loaded handgun when grappling with police, his resisting arrest and his flagrant breach of bail are all aggravating factors warranting a denunciatory and deterrent sentence.

[17] The defence position is that Mr. Clarke-Brown should serve a two-year conditional sentence to allow him to get his life back on track and focus on rehabilitation. In the alternative, counsel submits a jail sentence in the range of 18 to 24 months would be appropriate in the circumstances. Counsel argued given Mr. Clarke-Brown is a youthful first offender with no criminal record, options other than incarceration must be explored by the Court. He further urged the Court to consider Mr. Clarke-Brown’s rehabilitative prospects given the support of his family and friends, and not to place undue weight on general deterrence.

[18] Regarding the failing to comply with his release order, the parties jointly submit Mr. Clarke-Brown should be sentenced to 30 days jail to be served consecutively to his firearm-related sentence.

IV. Legal Principles

[19] The Criminal Code instructs the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.

[20] As with all sentencing cases, I am guided by the principles set out in s. 718.1 of the Criminal Code which lists the factors a sentencing judge must consider before imposition of the punishment on an offender found guilty of a crime. Deterrence and denunciation must be balanced against Mr. Clarke-Brown’s prospects of rehabilitation. In determining the appropriate sentence, I must also consider any relevant aggravating or mitigating circumstances.

[21] The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed the said offence. Ultimately, the sentence I impose must be tailored to Mr. Clarke-Brown’s circumstances and the circumstances of the offences he committed.

V. Case Law

[22] Appellate authority confirms the seriousness with which firearm offences are treated and the need for meaningful consequences to deter offenders and would-be offenders, as well as denounce their conduct (see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, R. v. Marshall, 2015 ONCA 692, R. v. Smickle, 2014 ONCA 49, R. v. Boussoulas, 2018 ONCA 222, R. v. Mansingh, 2017 ONCA 68).

[23] In R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707, the Court of Appeal stated at para. 14:

[…] Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

[24] As outlined in R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038, at para. 21:

Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences: R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Morris, 2011 ONSC 5206, at paras. 10, 58, affirmed, 2013 ONCA 223, 305 O.A.C. 47; R. v. Chambers, 2012 ONSC 817, at paras. 15-17, affirmed, 2013 ONCA 680, 311 O.A.C. 307; R. v. Scarlett, 2013 ONSC 562, at paras. 13-14; R. v. Peterkin, 2013 ONSC 2116, at paras. 22, 24.

[25] There can be no doubt handguns have but one purpose: to intimidate, injure and kill – most often in the furtherance of a criminal enterprise. Handguns are particularly dangerous given how easily they can be concealed and transported within our city. The public must be protected from those who would perpetrate such offences or consider doing so in future.

[26] The gravity of firearm offences will almost always require a severe sentence even for youthful offenders coming before the Court without a prior record. As per the Court of Appeal in R. v. Mansingh, supra, at para. 24:

The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15.

[27] Counsel submits Mr. Clarke-Brown should be granted a conditional sentence and relied on the decisions of R. v. Dalton, [2017] O.J. No. 5810 and R. v. Hassan, 2017 ONSC 4570, [2017] O.J. No. 3906 to support this proposition. I find the facts and circumstances of the offenders in both cases to be distinguishable to that of the case at bar.

[28] In Dalton, the accused had purchased a firearm for the protection of his teenaged stepson who had been threatened by gang members. The Court considered Mr. Dalton’s substance abuse issues and mental health issues as contributing to his poor decision-making at the time, as well as his cooperation and confession to police. Mr. Dalton plead guilty, expressed deep remorse for his actions and had taken significant steps towards rehabilitation.

[29] Hassan was not a guilty plea, but when the Charter application was dismissed, the case proceeded on agreed facts. Mr. Hassan was on a strict bail, with no breaches, for nearly 35 months – 15 months of which were spent on house arrest. He expressed remorse for his actions, and it was noted he was not the same person he was at the time of the offences.

[30] Mr. Hassan spent the time he was on bail completely turning his life around. Numerous individuals testified at his sentencing hearing providing evidence of Mr. Hassan’s transformation, including a city councillor and the arresting officer. While on bail, Mr. Hassan seized the opportunity to become a leader in his community and a positive role model for at-risk youth. This is not the case for Mr. Clarke-Brown.

[31] After spending four months in custody, Mr. Clarke-Brown was released in August 2019 – the same month he secured a job with Triple M Glass. Despite being on house arrest, his bail permitted him to attend work. It was during this time Mr. Clarke-Brown had the opportunity to demonstrate to the Court, his family and his community that he was prepared to turn over a new leaf and once again become a productive member of society. However, in July 2020 he breached his bail. It was not until November 15, 2020, that he was located and apprehended by police – once again, during the execution of a search warrant. As a result of these breaches, Mr. Clarke-Brown is now in custody.

[32] Given the circumstances of the offender and offences, as well as the aggravating factors in this case, a conditional sentence would not be appropriate.

VI. The Appropriate Sentence

a. Aggravating Factors

[33] Mr. Clarke-Brown was in possession of a readily accessible and loaded handgun within a large apartment complex. There were three occupants within the unit in which he was found. As police came charging through the door yelling “police” and “search warrant”, Mr. Clarke-Brown approached the living room window which led to an officer jumping onto his back. Mr. Clarke-Brown struggled with the officer, and, while the officer was on his back, threw a loaded firearm towards the window. This reckless act could have led to the serious injury of the officers or occupants of the unit or building. Once on the ground, Mr. Clarke-Brown continued to struggle with police and a second officer was needed to help subdue and handcuff him.

[34] Mr. Clarke-Brown was on a strict bail for his gun-related charges which he flagrantly breached on July 9, 2020, and again on November 15, 2020. He failed to turn himself in during the intervening period between these two dates and was essentially at large during that time.

b. Mitigating Factors

[35] Mr. Clarke-Brown is a youthful offender with no criminal record. He has the continued support of his family, friends and previous employer. He has also expressed a desire to complete his high school education.

[36] When addressing the Court, Mr. Clarke-Brown acknowledged having made poor choices, including in relation to his peer group. However, as per the PSR, Mr. Clarke-Brown took no responsibility for the offence. He further reported feeling he had been “wrongfully convicted” and that the criminal justice system had been “unfair” to him.

[37] I have also considered that Mr. Clarke-Brown plead guilty in relation to his failing to comply with his release order.

[38] Finally, as to his bail, Mr. Clarke-Brown was released on August 7, 2019, and placed on conditions, including house arrest. Prior to July 9, 2020, he had spent just over eleven months on stringent conditions without any breaches. Some credit is warranted given his pre-sentence house arrest (see R. v. Downes, [2006] O.J. No. 555, paras. 29-37). I will credit Mr. Clarke-Brown the equivalent of 90 days for his pre-trial bail conditions.

c. Non-Mitigating Factors

[39] This was not a guilty plea – Mr. Clarke-Brown was convicted after trial. However, counsel, on behalf of Mr. Clarke-Brown, made admissions during the trial which helped streamline the issues and complete the matter in short order.

d. Pre-Sentence Custody

1) Summers Credit

[40] As of today, Mr. Clarke-Brown has been in custody for 349 days. The combination of section 719(3) of the Criminal Code and R. v. Summers, 2014 SCC 26, entitles Mr. Clarke-Brown to a maximum credit of 1.5 days: therefore, any sentence he must serve is to be reduced by 524 days.

2) Duncan Credit

[41] In R. v. Duncan, 2016 ONCA 754, the Court stated at para 6:

[…] in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[42] Mr. Clarke-Brown has been housed at the Toronto South Detention Centre. The jail records filed by counsel cover the period from November 16, 2020 to March 28, 2021. The parties agree 50% of the time Mr. Clarke-Brown spent in pre-trial custody would have been served in a partial or full lockdown. The parties jointly submit additional credit should be given in reason of these numerous lockdowns.

[43] The Crown submits 72 days of credit should be given while counsel for Mr. Clarke-Brown argues it should be 77 days. [1] Therefore, based on the jail records and submissions of counsel, Mr. Clarke-Brown will be credited an additional 87 days for the time spent in lockdown at the Toronto South Detention Centre.

[44] Another circumstance that may give rise to Duncan credit are the health risks brought on by COVID-19. There can be no doubt the pandemic, and the manner in which the virus is transmitted, has had a significant impact on those incarcerated within the province, particularly in hot spots such as Toronto (see R. v. Marshall, 2021 ONCA 344, R. v. Morgan, 2020 ONCA 279, R. v. Hearns, 2020 ONSC 2365, R. v. M.W., 2020 ONSC 3513, R. v. D.D., 2020 ONCJ 218, R. v. Aiton-Poore, [2021] O.J. No. 644).

[45] Mr. Clarke-Brown’s initial period of incarceration from April 2019 to August 2019 was prior to the start of the global pandemic, however, when arrested in November 2020, the pandemic was in full swing with variants of concern beginning to emerge in a handful of countries. Though Mr. Clarke-Brown would have been aware of the pandemic and the health risks it posed when he breached his bail in July and November of 2020, and the likelihood of his being re-incarcerated upon arrest, additional credit is warranted in the circumstances.

[46] Mr. Clarke-Brown will be credited the equivalent of 55 days in reason of the time he spent in custody during the pandemic, which brings Mr. Clarke-Brown’s Duncan credit to a total of 142 days.

[47] I note, a week after counsel made their submissions, the Court of Appeal released its decision in R. v. Marshall, 2021 ONCA 344.

[48] At para. 18, the Court stated:

If counsel are able to agree on the "Duncan" credit, the trial judge should depart from that agreement, only after careful consideration and after giving counsel a full opportunity to address any concerns the trial judge might have. The trial judge should also provide reasons for departing from the figure agreed upon by counsel.

[49] Justice Doherty further remarked at paras. 52 and 53:

The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed […]

[50] In the case before me, the parties were a mere five days apart as to the credit that should be given in relation to the lockdowns endured by Mr. Clarke-Brown, and, given the submissions of counsel and circumstances of this case, I find deducting the Duncan credit from the sentence would not be inappropriate, nor would it skew the calculation of the ultimate sentence.

[51] Therefore, Mr. Clarke-Brown will be credited the equivalent of 666 days of pre-sentence custody, in addition to the 90 days for his pre-sentence house arrest while on bail.

e. The Sentence

[52] Guided by the sentencing principles set out in s. 718.1 of the Criminal Code and having regard to the aggravating and mitigating factors, as well as Mr. Clarke-Brown’s prospects of rehabilitation, the appropriate sentence in relation to the unlawful possession of a loaded prohibited firearm is a term of imprisonment of 36 months (less 756 days), followed by three years of probation.

[53] Mr. Clarke-Brown will serve a concurrent year of custody to Count 4 for the careless storage of the firearm.

[54] Finally, I will accede to the joint position regarding his failing to comply with his release order, and sentence Mr. Clarke-Brown to 30 days jail which are to be served consecutively to Count 4.

f. Ancillary Orders

1) DNA Order

[55] Possession of a loaded prohibited firearm and failing to comply with a release order are secondary designated offences as per section 487.051(3) of the Criminal Code.

[56] Having considered the circumstances of both offences, I am satisfied it is in the best interests of the administration of justice that this order be made. I therefore order Mr. Clarke-Brown to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

2) Weapons Prohibition

[57] Pursuant to section 109 of the Criminal Code, Mr. Clarke-Brown is hereby prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years.

3) Forfeiture Order

[58] The seized firearm, ammunition, narcotics and digital scale are to be forfeited and destroyed.

4) Victim Fine Surcharge

[59] Given the sentence of incarceration going forward, I find the imposition of the victim fine surcharge would cause Mr. Clarke-Brown undue hardship. It will be waived in relation to the conviction for failing to comply with his release order.

[60] As the firearm-related offences occurred at a time when the victim fine surcharge was found to be unconstitutional, no surcharge will apply to these convictions (see R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599).

Released: June 24, 2021 Signed: Justice Derek Ishak

[1] Mr. Clarke-Brown has been in custody an additional 42 days since counsel made their sentencing submissions on May 14, 2021.