ONTARIO COURT OF JUSTICE
DATE: 2023.02.01 COURT FILE No.: 21-15004110 (Toronto)
BETWEEN:
HIS MAJESTY THE KING
— AND —
JAHRELL EDWARDS
REASONS FOR SENTENCING
Heard on: September 16, November 4, December 8, December 9, 2022, January 11, 2023 Released on: February 1, 2023
Counsel: Mr. T. Di Muzio, counsel for the Crown Ms. M. Martin and Ms. S. Brown, counsel for Mr. Edwards
BAND J.:
I. Introduction
[1] Mr. Edwards is a young, single Black Canadian man with a loving and supportive family, a post-secondary diploma, a long, stable work history and volunteer experience. This despite having lost his biological father at a very young age, when his father was shot and killed by police. Those features describe a man with a bright future ahead of him.
[2] Yet, that same man made a terrible decision that has placed his liberty and future prospects in jeopardy. It has had and will continue to have a profound impact on him, his family and his community. For reasons that are not clear, Mr. Edwards chose to carry a loaded handgun in downtown Toronto one night. Early the following morning, he and his friend came to the attention of police who, while on patrol, saw them urinating in the loading bay of a residential and commercial building. The police called out to Mr. Edwards, and he approached them. As he did so, the barrel of a handgun was visible through a hole in his pants. He was arrested quickly and without incident. The firearm was a .45 caliber, semi-automatic pistol. There were eight rounds in the magazine and one in the chamber. He said he carried it “for protection.”
[3] That decision, and its potential consequences, represent a critical inflection point in Mr. Edwards’ life. That point is also where a number of principles and objectives of sentencing intersect or collide. Cases like Mr. Edwards’ are challenging, delicate and weighty tasks for judges.
II. Procedural History
[4] Last September, Mr. Edwards pled guilty to unauthorized possession of a loaded restricted handgun contrary to ss. 92(1) and 95(1) of the Criminal Code. [1] The Crown had made it clear that it would be seeking a three year penitentiary sentence. The Defence would be seeking a conditional sentence, relying on the principles set out in R. v. Morris 2021 ONCA 680. I ordered a Pre-Sentence Report (PSR), and the matter was put over for six weeks. On the return date, the Supreme Court of Canada released its decision in R. v. Sharma 2022 SCC 39. Understandably, counsel required time to review that decision. Counsel made their anticipated sentencing submissions on December 8. The Defence rested a good deal of its argument on social context evidence, including the expert report authored by Dr. Owusu-Bempah et al., which had been placed before the courts in Morris. I will refer to it as the Morris report in these reasons.
[5] In light of the delays that had already been incurred and the approaching holidays, I told the parties that I would try to turn a decision around quickly. As it happened, I was unable to. The next day, I advised them that I required more assistance. Mr. Edwards told the author of the PSR that he had the gun for protection, but was unable to explain what or who he needed protection from. This is unlike other cases involving concerns about self-protection: R. v. Beharry 2022 ONSC 4370 and Morris itself, to name two. I wanted more help regarding the connection between Mr. Edwards’ experiences with anti-Black racism and the circumstances that led to his decision to possess the firearm. The Morris report, while of great importance, does not address Mr. Edwards in particular, and the PSR is relatively superficial. As a result, I requested that the Defence consider whether and how to provide me with more information. Could the Court order an “Enhanced Pre-Sentence Report” (EPSR) such as those that have been filed in similar cases? Should I order a more probing report from the author of the first PSR? It was in this context that I learned that EPSRs, sometimes referred to as Impact of Race and Cultural Assessments, costs some offenders approximately four thousand dollars and can take up to eight months to produce, despite some of the thoughts expressed in Morris at para. 128. Such a report is beyond Mr. Edwards’ reach. He also declined to delay the matter any further for purposes of a more thorough PSR. However, counsel provided me with additional helpful information about him.
[6] I had also asked counsel to assist me regarding the possibility that Mr. Edwards would retain his employment once a conviction had been entered for these offences. To that end, they provided me with a letter from a vice president of Mr. Edwards’ labour union.
III. The Facts
A. Circumstances Surrounding the Offence
[7] Mr. Edwards had the handgun in his possession early on a Saturday morning in July 2021 near the intersection of Bathurst and Adelaide Streets in Toronto. According to police, he was “completely cooperative during the arrest and investigation process.” He did not run away or try to discard the weapon. He told the author of the PSR that he had the handgun for protection but had never used it. There is no evidence to suggest that he ever fired it, nor is there evidence that Mr. Edwards was involved in any other criminal behaviour.
B. Mr. Edwards – Background and Social Context
[8] Mr. Edwards was born in Scarborough in 1995. His parents, who were never married, separated when he was four months old. According to his mother, the relationship ended when Mr. Edwards’ father was charged with domestic violence offences. Mr. Edwards’ father died after being shot by police in 2004, when Mr. Edwards was 9 years old. While he had not had a relationship with his father, he did attend his funeral.
[9] Mr. Edwards was raised by his mother until 2001, when she met Mr. May. They had two children together, and Mr. May became Mr. Edwards’ stepfather. Mr. Edwards described his childhood as a good one, in which he was involved in organized sports, family activities and trips. He has a good relationship with his parents and siblings.
[10] Mrs. Edwards grew up in Ontario housing and wanted better for her children. Eventually, the family moved to Ajax. There, as a teenager, Mr. Edwards was exposed to anti-Black racism while riding his bike home from work after dark, when two different police officers stopped him along his route. He also told his mother about a time when police ordered him and his friends to the ground while they had been looking at cars at a car dealership in broad daylight.
[11] Mr. Edwards struggled in school due to a learning disability and was placed on an Individual Education Plan (IEP) since elementary school. Nonetheless, he graduated from high school in 2013. After high school, Mr. Edwards attended college, where he obtained a diploma in welding.
[12] Mr. Edwards began working when he was 15 years old. He has been steadily employed as a custodian with the Toronto District School Board since 2015. It is a full-time job that he enjoys. His parents attested to the hard work Mr. Edwards has put into this position, and the stability that comes along with it.
[13] Mr. Edwards’ short-term goals are to advance within the school board and to apply for an Iron Worker position. He also plans to update his welding credentials for future employment opportunities.
[14] It appears that Mr. Edwards has not dealt with the impact of his father’s violent death. While he briefly attended counseling several years ago, his mother is of the view that he has not come to terms with it and that more counseling would be very beneficial.
[15] Mr. Edwards moved out of his parents’ home in 2014, and lived independently. He returned to live with his family after incurring the charges before the court.
IV. Positions of the Parties and the Central Issues
[16] Citing R. v. Nur 2013 ONCA 677 (aff’d 2015 SCC 15) and R. v. Smickle, 2013 ONCA 678, among others, the Crown seeks a three year penitentiary sentence along with s. 109 and DNA orders. Citing Morris and more recent cases, the Defence seeks a conditional sentence of 18-24 months, to be followed by probation, and does not oppose the s. 109 and DNA orders.
[17] The central issues are whether the sentencing range in this case includes a reformatory sentence and, if so, whether the application of the principles set out in Morris makes a conditional sentence the appropriate sentence for Mr. Edwards.
V. Analysis
A. Applicable Legal Principles
(i) Generally
[18] Pursuant to s. 718 of the Criminal Code, the fundamental principle of sentencing is “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions….” Just sanctions have one or more objectives listed in ss. 718:
(a) Denunciation. (b) General and specific deterrence. (c) Separation of offenders from society when necessary. (d) Rehabilitation. (e) Reparations. (f) Promoting a sense of responsibility.
[19] As the Court of Appeal has repeated in Morris, at para. 56, these objectives do not necessarily point to the same sentencing outcome. Sentences must be individualized. Arriving at the fit and proportional sentence for a given individual “is a delicate task”: ibid at para. 66. To do so, sentencing judges must prioritize and blend the different objectives of sentencing in order to properly reflect the gravity of the offence and the moral blameworthiness of the offender. Ultimately, judges must use proportionality as their lodestar (s. 718.1).
[20] Two additional sentencing principles, parity and restraint, are also relevant: (s. 718.2). Parity requires that “material differences between the circumstances of the offence or offender” be “reflected in the sentences imposed” (ibid at para. 108). Restraint, which is remedial in nature, requires the imposition of the least restrictive or severe punishment that is consistent with the principle of proportionality (ibid at paras. 111-112). It has particular force in cases involving young and first offenders, as well as Indigenous and Black offenders.
(ii) Relevance of anti-Black racism and social context
[21] Additional evidence about an offender’s life experiences can assist in fashioning the appropriate sentence. When that offender is a Black person, “[t]hose life experiences can include social disadvantages flowing from anti-Black racism in society and the criminal justice system” (Morris at para. 75). Background or social context evidence concerning the offender can be relevant in more than one way. It “may offer an explanation for the commission of the offence which mitigates the offender’s personal responsibility or culpability for the offence;” it can also “provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender.” Such evidence can assist judges in assessing how “sometimes competing objectives of sentencing, such as rehabilitation and denunciation, can best be blended to produce a sentence that accords with the proportionality principle and serves the fundamental purpose of sentencing articulated in s. 718” (ibid at paras. 98-102). The Defence evidence in this case performs both roles.
[22] With respect to the offender’s blameworthiness, it is important to note that a connection is required “between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue;” however, the concept of connection must not be confused with a need to demonstrate causation (ibid at paras. 96 and 97).
[23] Restraint has a special role to play in cases involving Black offenders, in light of the impact of historic systemic and overt racism, as exemplified by the over-incarceration of Black persons – particularly young Black males – in Canada (among other impacts).
B. Gravity of the Offences
[24] The offence Mr. Edwards committed is very serious. In Morris at para. 68, the Court of Appeal explained that
Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place.
[25] Handguns exist to maim or kill people. Persons who choose to possess illegal loaded handguns have decided that there will be circumstances in which they will use them. They constitute a real threat to public safety. For this reason, sentences for gun crimes must emphasize deterrence and denunciation. However, that does not mean that other principles and objectives are unimportant or left out of the mix: see Beharry at para. 18.
C. Mr. Edwards’ Responsibility
(i) Motive
[26] The Defence argued that Mr. Edwards’ reason for carrying a firearm – “for protection” – was informed by his life experience and systemic or overt anti-Black racism. Motive, or the reasons animating the offender’s decision to commit a crime, can be a relevant consideration on sentence. That said, it has only a limited impact (ibid at para. 101).
[27] As I stated above, Mr. Edwards has never explained why he needed protection, or from whom. As a result, the Defence asks me to infer that his fear for his safety arises from his personal background, including systemic factors.
[28] Based on the record before me, Mr. Edwards has not experienced the most prevalent effects of systemic or overt anti-Black racism that are discussed in the Morris report and relevant legal authorities. He was raised in a safe environment by two parents who love him. He did not live in a neighbourhood known to have a high crime rate or large police presence. He does not have a criminal record. He has not been the victim of violent crime. He has a post-secondary diploma and a long history of employment. He is supported by law-abiding people in the community. He has clear, realistic goals for his future.
[29] For this reason, I understood the Defence to be focusing most strongly on the violent, gun-related death of Mr. Edwards’ father at the hands of the police. I have given a great amount of thought to this aspect of Mr. Edwards’ case. On an emotional level, one is tempted to connect his father’s death to his decision to carry a loaded firearm in public. All I know about his father’s death is that it was caused by police gunfire. Neither party was able to say more, and I draw no inferences as to how or why it happened. Mr. Edwards did not have a relationship with his father, and his death occurred approximately 18 years ago.
[30] On this record, and absent more evidence, I believe it would be an error to find that that event was Mr. Edwards’ reason for offending; in other words, that he carried a loaded firearm out of fear that he would be killed by police.
[31] As a society, we cannot tolerate persons choosing to walk our streets carrying concealed and loaded firearms out of a general or vague concern for their own safety.
[32] But that is not the end of the analysis. The circumstances of Mr. Edwards’ father’s death are a relevant and important part of his life experiences, which I will now discuss.
(ii) Systemic and personal factors
[33] Anti-Black racism has had an impact on Mr. Edwards’ life, decisions and options. First, Mr. Edwards struggled in school despite having an IEP. The Morris report explains that Black students who need additional support can suffer from lack of attention or resources during their education. This can lead to a number of adverse outcomes, including narrowing their options for employment. Despite Mr. Edwards’ solid work history as a school custodian, it seems that his potential may not have been tapped as fully as it could have been during his time in school.
[34] Second, I accept that Mr. Edwards was subjected to unfair and unwarranted attention by police on at least two occasions when he was a teenager.
[35] Third, Mr. Edwards was exposed to gun violence as a child, albeit indirectly, in the context of his father’s death at the hands of police. It would be naïve to think that such a traumatic event does not continue to reverberate to this day.
[36] These last two factors can help explain why Mr. Edwards, a hard-working person of good character, would choose to walk the streets of Toronto with a firearm, seemingly out of the blue. The Morris report tells us that the experience of Black Canadians can cause them to have a less robust respect for the law, law enforcement and the criminal justice system than members of other communities where systemic and overt racism are not prominent.
[37] Similar factors were among those deemed to be relevant by Justice Copeland, as she then was, in R. v. Stewart 2022 ONSC 6997.
[38] In this sense, I am satisfied that there is a connection between Mr. Edwards’ life experience with anti-Black racism and his decision to commit the offences before the Court. While Mr. Edwards is clearly responsible for his offending, his responsibility is mitigated by these factors.
D. Aggravating and Mitigating Factors
i. Aggravating factors
[39] The aggravating factors in this case are that Mr. Edwards carried a loaded restricted firearm in a densely populated area of Toronto, and the risk to public safety that he posed in so doing.
ii. Mitigating factors
[40] In addition to the attenuating effect of Mr. Edwards’ personal circumstances and experiences with anti-Black racism, there are numerous mitigating factors in this case. Mr. Edwards
- is a young man (29 years old);
- was cooperative upon arrest;
- pleaded guilty at an early stage, during a period when court time is at a premium;
- has publicly expressed his sincere remorse;
- has no prior criminal record and is of prior good character;
- has a long and stable history of employment;
- spent the equivalent of eight days in pre-sentence custody;
- abided by conditions of his bail since his arrest (17 months);
- was bound by a house arrest bail (with exceptions allowing for work, volunteering and counseling) [2];
- engaged in counseling while on bail with Ounce of Prevention (oz), for Black or racialized youth involved in the criminal justice system and their families;
- engaged in volunteerism while on bail;
- has strong support in the community, including from his parents and a pro-social friend group; and
- has been described as a suitable candidate for community supervision.
E. The Applicable Sentencing Range
[41] It is important to plot Mr. Edwards’ possession of a firearm on the spectrum described by Justice Doherty in R. v. Nur 2013 ONCA 677 at para. 51 (aff’d 2015 SCC 15, at para. 82). At one end stands the outlaw who possesses a firearm as a tool of his or her criminal trade; at the other, a person who commits what is essentially a regulatory offence. Mr. Edwards’ conduct is serious, and lies between the two extremes. However, Mr. Edwards is not the “outlaw” that Justice Doherty described. There is no evidence that he was engaged in any other criminality or that he carried the firearm as a “tool of the trade.” As a result, I find that the three-to-five-year range that is often cited and appropriate for s. 95 offences does not apply: see Stewart at para. 74 and Beharry at paras. 30-31, and the cases they cite. Cases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or low penitentiary range (ibid; see also Smickle and Morris at paras. 125 and 131).
[42] In R. v. Blagrove-Robinson, unrept’d August 9, 2022 (S.C.J.) at para. 60, a decision relied upon by the Crown, Justice Himel found that the range for a first offender in a gun possession case was two to four years. In Stuart at para. 80, Justice Copeland found that the range for a young first offender for a handgun possession offence with no additional criminality spans upper reformatory sentences (including conditional sentences) and three years.
[43] Having considered the gravity of the offences, Mr. Edwards’ degree of responsibility, the aggravating and mitigating circumstances, the objectives and principles of sentence and the leading authorities, I find that the appropriate sentence for Mr. Edwards is a sentence of imprisonment of two years less one day. In coming to that determination, I have considered similar cases, including Morris, Smickle, Beharry, Stewart and the other cases referred to by the parties.
[44] I am therefore required to consider whether a conditional sentence is appropriate in this case: Morris at para. 125; see also R. v. Desmond-Robinson, 2022 ONCA 369.
F. Appropriateness of a Conditional Sentence Order
[45] The Defence argues that a conditional sentence order is the appropriate sentence in this case, and has provided information for my consideration, as well as a list of terms required to address the need for deterrence, denunciation and supervision. The Defence also argues that a term of probation will add a measure of supervision that is not available after a three-year penitentiary term. The Crown argues that while technically available, a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing in this case.
[46] In Morris at para. 126, the Ontario Court of Appeal explained that “a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s. 95 offence.” At para. 129, the Court added that an advantage of conditional sentence orders in cases involving young Black offenders is that they address the problem of over-incarceration of young Black offenders. It is, in a sense, the embodiment of the principle of restraint.
[47] The Crown did not argue that a conditional sentence would endanger the public in this case, and I am satisfied that it would not. Mr. Edwards is a young man with no criminal record who is of prior good character. There is no evidence that he has ever used the handgun or that he was involved in any other criminality. He knows that what he did was wrong, and he is remorseful. He understands the impact this has had on his family and has apologized to them. He has strong support in the community. His family is pro-social and condemns his offences. He has overcome obstacles throughout his life and has worked hard to maintain steady employment. He does not abuse alcohol or other substances. He has already sought and begun counseling.
[48] I find that Mr. Edwards is an excellent candidate for rehabilitation who will commit to terms and conditions I would impose. I also find that he is not likely to reoffend or pose a risk to the safety of the public during a period of community supervision.
[49] Clearly, Mr. Edwards’ offending calls for deterrence and denunciation. Both of these objectives can be met with a conditional sentence containing sufficiently punitive terms: see R. v. Proulx, 2000 SCC 5 at paras. 22, 102, 105 and 107. I pause here to note that, in this case, there is no indication that incarceration is required to provide a measure of specific deterrence to Mr. Edwards. Mr. Edwards was very affected by the fact that he missed his younger sister’s departure for university when he was detained after his arrest. If specific deterrence is in play at all, it can be achieved with a conditional sentence.
[50] Conditional sentences have been recognized as being more effective at fostering rehabilitation than incarceration: ibid at para. 22. They are also a clear expression of restraint.
[51] A conditional sentence order would best enable Mr. Edwards’ rehabilitation. His work has been an important and stabilizing force for him. It is important that he be able to maintain his employment, not only for him, but for the community as a whole in the longer term. I learned from the material filed by the Defence that, with the support of his union, it is most unlikely that Mr. Edwards will lose his job as a result of these offences. However, I believe that a lengthy period of incarceration would almost certainly narrow his future employment prospects. The Morris report discusses the employment hurdles faced by Black men who have been incarcerated.
[52] I find that the combination of Mr. Edwards’ personal circumstances, life experiences, which include anti-Black racism, and the social context evidence that was placed before me makes this a case in which it is appropriate give added weight to the objective of rehabilitation and less weight to the objective of deterrence: see Morris at paras. 79 and 81.
[53] These factors, together with the mitigating factors I have listed above lead me to the conclusion that a conditional sentence is the proportionate and fit sentence in this case. It also has the advantage of addressing, in Mr. Edwards case, the over-incarceration of young Black offenders.
[54] As a result, Mr. Edwards will be sentenced to a term of imprisonment of two years less one day, to be served in the community. Thereafter, he will be placed on probation for a period of 24 months.
[55] In addition to other conditions I will discuss with the parties, Mr. Edwards will be placed under house arrest for the first 12 months of his conditional sentence and will be subject to a curfew for the remainder. His house arrest will be crafted to allow him to work and attend counseling, both of which are integral aspects of his rehabilitation. I agree with his mother that Mr. Edwards would benefit from therapy regarding his father’s death. During the second half of his conditional sentence order, Mr. Edwards will make reparations by performing 100 hours of community service. His period of probation will also include counseling.
[56] Mr. Edwards will be bound by a s. 109 order for life, and will be ordered to provide a sample of his DNA for the DNA database.
[57] The s. 92(1) count will be stayed at the Crown’s invitation.
G. A Comment on EPSRs
[58] Lastly, I wish to add my voice to my colleague Justice B.M. Green’s regarding the difficulties in obtaining EPSRs. As the Court of Appeal has said, these reports are in many cases essential for courts to understand and acknowledge anti-Black racism in our communities and to do something about it within the criminal justice system, where appropriate. Yet, for many, they are simply not available. As Justice Green put it, the cost of EPSRs creates a “Catch-22.” Many of those for whom EPSRs are essential cannot afford them: see R. v. McLarty-Mathieu, 2022 ONCJ 498 at paras. 10-24. To be clear, this is not a criticism of the people who create these reports but another call for the resources necessary to allow the system to do better.
[59] I would like to thank all counsel for their invaluable assistance and professionalism in this matter.
Released: February 1, 2023 Justice Patrice F. Band
[1] Prior to the imposition of sentence, the Crown invited me to stay the s. 92(1) count pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, when I advised the parties that a colleague of his had done so recently, in light of recent amendments to the Criminal Code. [2] The Crown fairly agreed that he deserved some “Downes credit,” which need not be quantified mathematically.
