ONTARIO COURT OF JUSTICE
DATE: 2025 01 02
COURT FILE No.: Central East - Newmarket - 20-05535
BETWEEN:
— AND —
Before Justice A. A. Ghosh
Heard on September 5, October 2, November 7, 2024
Reasons for Sentence
Released on January 2, 2025
J. Arvizu ................................................................................................ counsel for the Crown
J. Goldglass .................................................................................. counsel for the Defendant
Overview
[1] David Pusey was found guilty after trial for “possessing a loaded firearm” (s.95) and “possessing a firearm contrary to a prohibition” (s.117.01), contrary to the Criminal Code. I initially provided oral reasons for sentence with these written ones to follow.
[2] A search warrant was executed at a house believed to be associated with the offender. He was arrested just outside of the residence. Upon a secondary search of the property, police located a loaded firearm, concealed in a bag of yard waste in the backyard.
[3] Earlier, a wiretap authorization had been issued on a larger project, and police intercepted phone calls and messages from a phone believed to be associated with Mr. Pusey. I found that intercepted calls revealed that Mr. Pusey, over the day or so prior to the executed warrant and arrest, had been urgently trying to obtain a firearm.
[4] The Crown seeks a global five (5) year sentence. The defence submits I should consider (without noting) his presentence custody for an unrelated murder charge to impose a sentence of less than six (6) months, to navigate an immigration concern. These are my sentencing reasons.
Summary of the Evidence
[5] On April 25, 2020, police conducted surveillance on a residence in Sudbury. They planned to execute a search warrant on that property, expecting to locate a firearm associated with David Pusey. The grounds supporting the warrant included wiretap interceptions of phone calls connected to the defendant.
[6] Police observed Mr. Pusey exiting the front door of the residence and lighting a cigarette. He began to walk down the street when Greater Sudbury Tactical police officers arrested Mr. Pusey for “weapons dangerous” and “possession of a prohibited weapon”.
[7] A couple of hours after the arrest, Detective Dan Milliard of the York Regional Police Service conducted a secondary search of the residence. This was an interjurisdictional investigation. Given his understanding of the relevant interceptions, he was confident the firearm was somewhere on the property, and likely in the backyard.
[8] The detective participated in searching the interior of the house again. He went outside to search the backyard. Detective Milliard sensed that the bags of yard waste had not been searched, as they appeared relatively undisturbed. He began to empty the bags. The second bag contained a knotted white plastic bag. Inside of it was a second black bag, containing a black t-shirt. The t-shirt was wrapped around a loaded firearm.
[9] The seized firearm was a restricted .22 Long Rifle. It was loaded with a magazine that contained six cartridges of ammunition. Audio interceptions of conversations from a cell phone associated with Mr. Pusey were tendered in evidence along with an agreed statement of fact framing aspects of the interceptions.
Circumstances of the Offender
[10] David Pusey is a 29-year-old black man with a criminal record. He was found guilty of “robbery” in 2015 and sentenced to 134 days with probation. In 2017, he was found guilty of “possession of property obtained by crime” and received a $300 fine.
[11] A presentence report was generated. Mr. Pusey did not provide any contact details for family or friends, so the report relied mostly on information received from the offender. He arrived from Jamaica in 2011 and is a permanent resident. The offender shared that he observed a lot of violence in Jamaica. His parents had separated at some point, although he did not recall when. He has one sibling and several half-siblings.
[12] His mother is a librarian in Jamaica, while his father works in construction and renovation here in Canada. Mr. Pusey was expelled from high school after a fight. He worked for a time as a welder. He is unsure about his “future ambitions”, perhaps informed by the realities of an unrelated and more serious charge he is facing.
Positions on Sentence
[13] The Crown seeks a global five (5) year sentence, to be broken down to four (4) years for the s.95 “loaded firearm” offence and one (1) year consecutive for the “breach of weapons prohibition” offence. Mr. Pusey had bail on these charges, so there are only seven (7) days of presentence custody to consider in the Crown’s submission.
[14] Defence counsel submits that I should impose a sentence of six (6) months, less one day, to navigate the immigration issue. He risks being deported with no right of appeal if he receives a sentence of over six months. To support such a sentence well below the range, I am invited to consider (without noting) the significant post-offence presentence custody he has served for an unrelated murder charge.
Applicable Principles of Sentencing
[15] The objectives of sentencing are codified in section 718 of the Criminal Code. The principles of denunciation, and specific and general deterrence are the central sentencing objectives for firearms possession.
[16] Mr. Pusey is a young black man facing his first penitentiary sentence. Restraint, rehabilitation, and reintegration must be considered as well.
[17] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I also apply the principle of parity codified in section 718.2(b).
Aggravating and Mitigating Factors
[18] The following aggravating facts have been proven beyond a reasonable doubt:
i. “True Crime” Loaded Firearm Offence – Mr. Pusey was urgently attempting to obtain a firearm on short notice. He told the ostensible gun trafficker that he planned to “use it”, supporting the only reasonable inference that he was informing the seller that he either intended to brandish or discharge it.
ii. Criminal Record – The offender has a criminal record, notably for “robbery” where he served 134 days in custody. The other entry was for “possession of stolen property” where he received a fine.
iii. Concealment in a Private but Outdoor Space – Mr. Pusey concealed the firearm in a bag of yard waste in the backyard. It was readily and dangerously ascertainable by others, even if inadvertently.
iv. Possession Contrary to a Prohibition – It is not aggravating, per se, that he possessed a loaded firearm contrary to a prohibition order. There is no “double-dipping” of aggravating factors that lie at the heart of each distinct offence. However, there is a compounding effect on the overall length of sentence that simply extends the duration of custody that is required.
[19] The following mitigating factors have been proven:
i. Black Offender and Judicial Notice of Systemic Factors – The defence originally pursued an “enhanced presentence report”, but that was abandoned for a conventional PSR. This choice was informed by significant resource limitations and a prohibitive and related backlog. I recommended to the author of the PSR that the offender be asked appropriate questions regarding the “impact of race and cultural assessments” (IRCA) on criminogenic risk factors relevant to Mr. Pusey and his experience. The relevant questions were asked. Mr. Pusey was reticent and circumspect throughout the entire process, perhaps understandably to preserve his right of appeal. However, he managed to share that he felt discrimination “all the time”, and that racism and a “fight” may have informed his expulsion from grade eleven.
ii. Presentence Custody – He only spent seven (7) days of presentence custody on these charges before being released with conditions. However, he was arrested later for an unrelated murder charge and has remained in custody since. I am asked to also apply the time spent in custody for the homicide “as a result of the offence”, as permitted by s.719. The Crown is opposed.
iii. Immigration Status – Mr. Pusey is a permanent resident from Jamaica. He was already once ordered deported due to the robbery sentence, but he successfully appealed and was granted a stay of the removal order. If he receives a sentence here of six (6) months or more, he will likely be deported without any right of appeal.
Discussion
A. Presentence Custody for Post-Release Homicide Charge Inapplicable
[20] Mr. Pusey only served seven (7) days of presentence custody before he was released on bail. He was later arrested for an unrelated first-degree murder offence and has been in custody for over a year. Despite the appealing submission that I should be able to draw from the presentence custody related to the homicide, the law does not permit it here.
[21] While theoretically I may consider time spent in custody for unrelated charges in a limited way, it is only to understand “the complete picture” of the offender. R. v. Pammett, 2016 ONCA 979, paras. 18-25 I accept Mr. Pusey completed anger management and high school courses while in custody. However, using time served on unrelated charges for a quantified deduction “as a result of the offence” (s.719) is either impermissible or improper here for other reasons.
[22] These firearm charges did not contribute to his detention for murder, R. v. John, 2020 ONSC 5171, paras. 30-33 which is still pending. The release order on the firearm charges was understandably not cancelled due to the homicide, pursuant to s.524. I am not aware of any application for release on the new charge.
[23] Uniquely, a s.469 murder charge requires an automatic detention order, capable of being displaced by a successful application for release in Superior Court. This separates and compartmentalizes the homicide and firearm cases. The related presentence custody for the homicide cannot or should not be extracted for this matter.
B. Applicable Sentencing Range – Loaded Firearm while on Prohibition
[24] Possession of a loaded restricted firearm while subject to a weapons prohibition will attract a global sentence in the penitentiary. In “most cases”, even mere possession of a loaded firearm in a “true crime” case like this will render a penitentiary sentence “necessary”. In some of these cases, a sentence near a maximum reformatory sentence approaching two years will be appropriate for possession of a loaded firearm. R. v. Morris, 2021 ONCA 680, paras. 151 and 177; R. v. Smith, 2023 OJ No. 4162
[25] The culpability spectrum spans from the technical or regulatory to more serious “true crime” offending. This is undoubtedly a “true crime” loaded firearm case, given Mr. Pusey explicitly stated his intention to “use it”. There were drugs found in the home solely occupied by him at the time of arrest, but I decline to find he possessed the drugs, or that the firearm was connected to drug trafficking. The Crown chose to only prosecute him for the firearm. Mr. Pusey’s invocation to “use” the firearm is enough.
[26] It is agreed that a significant custodial term is required. In 2015, the Supreme Court confirmed our Court of Appeal’s decision to strike down the three-year mandatory minimum for possessing a loaded prohibited firearm in R. v. Nur, 2015 SCC 15. Since then, first-time offenders in our province have received sentences ranging from high reformatory to 2 to 5-year penitentiary sentences. That is without the violation of a firearm prohibition in place, which clearly requires a lengthier total quantum of custody.
[27] I note for illustration that in December of 2023, the maximum sentence for “possession of a loaded firearm” increased from 10 to 14 years. I suspect that we may receive appellate direction in time of an “upward departure” from past sentencing ranges to reflect Parliament’s intention that related sentences must increase. R. v. Friesen, 2020 SCC 9 With that observed, I accept that Mr. Pusey must receive the “benefit of the lesser punishment” available at the time that he committed the offence. Charter of Rights and Freedoms, s.11(i)
[28] The following sentences support or signal a deterrent penitentiary sentence above three (3) years for offenders possessing a loaded restricted firearm contrary to a prohibition:
- R. v. Mansingh, CA: The CA upheld a 43-month sentence for a first-time offender possessing a loaded handgun. The offender was not subject to a weapons prohibition. He threw the firearm as he ran from the police, leaving it in a place easily discovered by others. The Court upheld the finding that this was a “true crime” firearm offence, deferring to the finding that the offender was involved in low-level drug trafficking.
- R. v. Mohiadin, Court of Appeal: The Court of Appeal confirmed the original Crown submission of three (3) years for a 19-year-old first time offender in possession of a loaded firearm. The offender was found by police, sitting in a parked car, smoking cannabis. The youthful offender lived with gun violence in his neighbourhood, having witnessed it and lost his brother to it. He had good rehabilitative prospects.
- R. v. Patel, Ontario Superior Court of Justice: The sentencing jurist imposed a global four (4) year sentence for a 25-year-old offender with a record for theft, assault with a weapon, drug trafficking, breach of release order and breaking and entering. The offender ran from police as they attempted to execute a warrant for him. He received a three (3) year sentence for possession of a loaded firearm, and a one (1) year consecutive term for violating a weapons prohibition.
- R. v. Mahamet-Zene, Ontario Superior Court of Justice: A 42-month sentence was imposed for a 24-year-old first-time offender found in possession of a loaded firearm in an innocuous social setting. There was no conflict or drug trafficking animating the facts. He hailed from Regent Park, a neighbourhood in Toronto known for its socioeconomic challenges, including gang operations and gun violence. The young, black offender had excellent rehabilitative prospects, having graduated from Seneca College with a Computer Systems Diploma, and was completing a related co-op at a Toronto University. He lost his employment in I.T. at a bank because of the offence.
- R. v. Nur, Supreme Court of Canada: While this Supreme Court decision is known for the striking down of the mandatory minimum sentence of three (3) years for possession of a loaded firearm, the 40-month sentence itself was upheld. Mr. Nur was a 19-year-old, black, first-time offender who pleaded guilty to possession of a loaded firearm. He discarded the weapon as he ran from the police.
[29] A s.117.01 breach of a weapons prohibition often will attract a consecutive sentence to the firearm possession offence in the 6–12-month range. In the rare case that sentence is only imposed for the breach, the related facts may support a similar penitentiary range reserved for a “true crime” loaded firearm case. R. v. Chambers, 2013 ONCA 680, R. v. Gorgievski, 2024 ONSC 5899, R. v. Pinard, 2024 OJ No 3256
C. Sentencing Analysis and Conclusion
[30] The Crown position of five (5) years is fair and restrained. Mr. Pusey had previously served a reformatory term of custody for robbery. This is a “true crime” loaded firearm offence and committed contrary to a weapons prohibition. No sentence short of a penitentiary sentence is available, despite the presence of some mitigation and a stark collateral consequence on the immigration front.
[31] Mr. Pusey is again rendered inadmissible to Canada for “serious criminality” and will have no right of appeal, given I must impose a custodial sentence of at least six (6) months. Immigration and Refugee Protection Act, ss. 36(1)(a) He already had an existing removal order that had been stayed upon review, all stemming from his previous robbery conviction and sentence.
[32] I have earlier found that the law does not permit me to consider the post-offence presentence custody accumulated for an unrelated murder charge. Aside from the legal prohibition to its use, it is additionally impermissible to use it to navigate the immigration issue.
[33] This admittedly serious collateral consequence cannot overwhelm the analysis for a fit and proportionate sentence, proposed by the defence to be years below the proper range. To do so would thwart the intention of Parliament in constructing the inadmissibility regime in the Immigration and Refugee Protection Act. There is appellate authority supporting this specific finding. Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FC 7, para. 15
[34] I have also considered the evidence in mitigation that Mr. Pusey may have experienced anti-black racism and that this may have informed his involvement in crime. I accept there is a dearth of evidentiary support for such findings, informed by his reticence during the presentence report process.
[35] I take judicial notice that his arrival and maladjustment from Jamaica informed his limited academic and work trajectory. He mentioned he has experienced discrimination during his time in Canada. I also accept that his neighbourhood dealt with gun violence, and that being black, marginalized, and of limited means informed his engagement with the criminal justice system. This mitigation, too, cannot overwhelm the analysis.
[36] I have determined that the fit global sentence is four (4) years in the penitentiary, less credit of seven (7) actual days of presentence custody. I will credit him for 14 days, applying Summers and Marshall credit for harsh presentence custody conditions.
[37] The global sentence of (4) years will be apportioned as follows:
(1) Three (3) years: “possession of a loaded restricted firearm” - s.95
• Less credit or mitigation of 14 days
[7 real days: enhanced to 11 days (Summers) plus 3 days off gross (Marshall)]
(2) One (1) year consecutive: “possession contrary to prohibition” - s.117.01
(3) S.109 weapons prohibition for life
(4) DNA - secondary designated for the s.95 offence
[38] My thanks to counsel.
Signed: Justice A. A. Ghosh