Court File and Parties

COURT FILE NO.: CR-15-500000395-0000 DATE: 20170324 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDRE CALLAGHAN

Counsel: Maureen Bellmore, for the Crown Mary Cremer, for the Accused

HEARD: November 16, December 14, 2016, January 24, 27, & February 8, 2017

REASONS FOR SENTENCE

GARTON J.

[1] The offender, Andre Callaghan, age 34, has been found guilty of all charges in a 15-count indictment. Thirteen of the counts relate to his possession of a loaded prohibited firearm; namely, a 9 mm Luger semi-automatic pistol. Two of the counts involve the discharge of that firearm. The gun was loaded with a high-capacity magazine, which is a prohibited device under the Criminal Code. The offence date for all the firearm-related offences is July 22, 2014.

[2] The offences charged in Counts 1 to 9 of the indictment are as follows:

• Count 1: Discharging a prohibited firearm with the intent to wound or endanger the life of a person, contrary to s. 244 (2)(a) of the Code;
• Count 2: The intentional discharge of a prohibited firearm, being reckless as to the life or safety of another person, contrary to s. 244.2 (3)(a) of the Code;
• Count 3: Possession of a loaded prohibited firearm, without being the holder of an authorization or licence under which he may possess that firearm and not being the holder of a registration certificate for the firearm, contrary to s. 95 (2)(a) of the Code;
• Count 4: Possession of a firearm knowing that he was not the holder of a licence under which he may possess it and the holder of a registration certificate for the said firearm, contrary to s. 92(3) of the Code;
• Count 5: Possession of a firearm without being the holder of a licence under which he may possess it and the holder of a registration certificate for the said firearm, contrary to s. 91(3)(a) of the Code;
• Count 6: Possession of a prohibited device, to wit, a high-capacity magazine, knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(3) of the Code;
• Count 7: Possession of a high-capacity magazine, without being a holder of a licence under which he may possess it, contrary to s. 91(3)(a) of the Code;
• Count 8: Possession of a firearm knowing that the serial number on it had been removed, contrary to s. 108(2)(a) of the Code; and
• Count 9: Storing a firearm in a careless manner, contrary to s. 86(3)(a) of the Code.

[3] Counts 2, 5, and 7 have been stayed at the request of the Crown on the basis of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.

[4] Mr. Callaghan was also found guilty on Counts 10 and 11 of the indictment; that is, that he was in possession of the firearm while he was prohibited from doing so by reason of orders made pursuant to s. 109 of the Code on September 21, 2006, and June 23, 2008, respectively, contrary to s. 117.01(3)(a).

[5] In addition, Mr. Callaghan was found guilty on counts 12 and 13 of being in possession of a prohibited device, to wit, an over-capacity magazine, while he was prohibited from doing so by reason of the s. 109 orders made on September 21, 2006, and June 23, 2008, respectively, contrary to s. 117.01(3)(a).

[6] Mr. Callaghan has also been convicted of dangerous driving contrary to s. 249 (2)(a) of the Code (Counts 14), and failing to stop his vehicle while being pursued by the police, contrary to s. 249.1 (2) of the Code (Count 15). These charges arose on July 24, 2014, when the police pulled over the car he was driving with the intention of arresting him on the firearm offences. As soon as the officers exited their scout car, Mr. Callaghan drove off. He ran two red lights and travelled at excessive rates of speed while being pursued by police. He ultimately abandoned his vehicle and fled on foot into a ravine. He was eventually located with the assistance of the canine unit. During closing submissions, defence counsel conceded that the Crown had proved its case with respect to Counts 14 and 15.

Circumstances of the Offences

[7] Shortly after midnight on July 22, 2014, Mr. Callaghan was sitting at the top of the stairs at the back entrance of the apartment building at 1 Coin Street. The back entrance is on Ninth Street. Mr. Callaghan had all his belongings with him, which were in four different bags. He apparently had had an argument with the woman he had been living with at that address, had removed his belongings from her apartment, and was waiting to be picked up by his present girlfriend, Jaimee Lee Roche.

[8] At some point, a group of males on bicycles rode by. One of the cyclists fired five bullets in Mr. Callaghan’s direction. Mr. Callaghan dove into the bushes to the north of the entrance in order to avoid being shot. The shooter continued riding north on Ninth Street and then turned left or west onto Garnett Janes Road. A witness in a second floor apartment across the street saw him drop his bicycle and flee on foot, continuing in a westerly direction.

[9] Mr. Callaghan tossed his belongings into the bushes and chased after the shooter while armed with the loaded Luger semi-automatic pistol that is the subject matter of these charges. He ran north on Ninth Street, turned west onto Garnett Janes Road, slowed to a walk, and fired two bullets in the direction that the cyclist had fled. He tried to fire a third shot, but the bullet jammed in the chamber. Mr. Callaghan hid the gun, which was secreted in a small black purse or bag, in some bushes at the corner of Ninth Street and Garnett Janes Road. He then returned to the back entrance of 1 Coin Street, where he hid in the shrubbery, along with all his belongings. He only revealed himself to the police when it became apparent that he would be discovered in any event, given the heavy police presence and the fact that he and his bags ended up behind the police tape and within the designated crime scene.

[10] Mr. Callaghan initially gave the police a false name. He indicated that he had witnessed the shooting by the cyclist, and agreed to attend at the police station to be interviewed. He denied being the target of the shooter, and told the police that the targets were two pedestrians walking on the sidewalk. He made no mention and was not asked about the second volley of shots, for which he was responsible.

[11] Following the interview, the officers, at Mr. Callaghan’s request, dropped him off at a nearby gas station. A short time later, they were advised of the presence of the firearm hidden in the black bag in the bushes at the scene of the shooting. The serial number had been scratched off the gun. The magazine, which had the capacity to hold 12 rounds of ammunition, contained eight bullets. The bag containing the gun also contained Mr. Callaghan’s cell phone, birth certificate, and OHIP and SIN cards.

[12] The officers returned to the gas station in an attempt to locate Mr. Callaghan, but by that time, he was gone.

[13] On July 24, 2014, at 3:03 a.m., police saw Mr. Callaghan enter and drive off in Ms. Roche’s Ford Escort. Although he pulled over in response to the scout car’s lights and siren, he took off as soon as the officers exited their vehicle.

[14] During the pursuit by police, Mr. Callaghan drove from Etobicoke to Oakville and back to Etobicoke via the QEW, and then took Highway 427 to Rexdale Boulevard. At 3:37 a.m., the police located his vehicle beside a ravine at the rear of 20 Humberline Drive. The driver’s door was open and the lights were on. Mr. Callaghan was eventually located with the assistance of the canine unit. At 4:27 a.m., he was found hiding in the ravine behind a Humber College amphitheatre.

[15] The driving that is the subject of the dangerous driving charge is set out in my reasons for judgment at paras. 133-243. Briefly, when Mr. Callaghan first fled from police, he drove north on Kipling Avenue at speeds between 100 to 120 km/h. The posted speed limit is 50 or 60 km/h. He also went through two red lights without slowing down at either light. His brake lights were not activated.

[16] While driving on the QEW, Mr. Callaghan would veer towards an off-ramp as though he was going to exit, but then at the last minute would veer back and continue westbound. His speed on the eastbound QEW when returning to Toronto varied between 140 to 160 km/h.

[17] A construction truck was parked near the exit for Mississauga Road, where workers were setting out cones to close the right lane. Mr. Callaghan veered towards the exit but then swerved back again to continue along the highway. The officers who were following Mr. Callaghan anticipated that he was going to lose control of his vehicle at this point, as it was swaying back and forth. However, he continued driving east on the QEW, and made a similar maneuver at the exit for Hurontario, swerving onto the off-ramp but then swerving back onto the highway at the last minute.

[18] Mr. Callaghan exited at Evans Avenue and proceeded west while travelling at an estimated speed of 120 km/h in a 60km/h zone. This area contains a mix of residential and commercial buildings.

[19] Mr. Callaghan then went north on Highway 427, continuing at an estimated speed of 120 km/h. He exited at the Rexdale Blvd. off-ramp. One officer testified that he thought Mr. Callaghan was travelling too fast to safely execute the bend in the road at that point. The officer reduced his own speed out of safety concerns.

[20] Mr. Callaghan proceeded east on Rexdale Blvd. and then north on Humberwood Blvd. at an estimated speed of 100 km/h. The officers briefly lost sight of him but ultimately located his vehicle abandoned by the ravine.

Circumstances of the Offender

[21] Mr. Callaghan’s criminal record consists of 16 convictions, including two convictions for the unlawful possession of a firearm, a conviction for trafficking in firearms, and a conviction for committing an offence for a criminal organization. He has five convictions for failing to comply with a recognizance.

[22] The record commences in 2003, when Mr. Callaghan was 21 years old. In June of that year, he was convicted of possession of a Scheduled Substance, and two counts of failing to comply with a recognizance. He received a sentence of one day, concurrent on each charge. Later that year, he was again convicted of possession of a Scheduled Substance, and received a 30-day intermittent sentence, in addition to 44 days of pre-sentence custody.

[23] In 2005, Mr. Callaghan was convicted of failing to comply with a recognizance. He had served seven days of pre-sentence custody, and was fined $250.

[24] On August 14, 2006, Mr. Callaghan was convicted of possession of a Scheduled Substance, and was sentenced to 60 days imprisonment.

[25] On September 21, 2006, Mr. Callaghan was convicted of possession of a Schedule I substance for the purpose of trafficking and the unauthorized possession of a firearm. In addition to one month of pre-trial custody, he received a sentence of 22 months’ imprisonment on each charge, to be served concurrently. The sentence was therefore the equivalent of a two-year term. A s. 109 weapons prohibition order was also imposed.

[26] On August 23, 2008, Mr. Callaghan received a sentence that was the equivalent of six years, taking into account the nine months he spent in pre-trial custody, which was credited on a 2:1 basis. The convictions were for the following offences:

• Weapons trafficking (s. 99): 30 months, consecutive to the sentence being served, plus a s. 109 mandatory prohibition order;
• Commission of an offence for a criminal organization (s. 467.12): 2 years, consecutive;
• Possession of a loaded prohibited or restricted firearm (s. 95): 4 years concurrent;
• Possession of a Schedule I substance for the purpose of trafficking: 3 years, concurrent;
• Trafficking in a Schedule I substance: 3 years concurrent; and
• Fail to comply with a recognizance (2 counts): 1 year on each charge, concurrent.

[27] Mr. Callaghan was granted parole in June 2010. In April 2012, he was convicted of impaired driving and sentenced to 60 days consecutive to the sentence he was serving. He was also prohibited from driving for 18 months.

[28] Mr. Callaghan, who was 32 years old at the time that he committed the current offences, was born in Toronto and raised by his mother and step-father, Pauline and Vinroy Williams. He has seven step-siblings. None of his immediate family members have been involved in the criminal justice system. Although Mr. Callaghan has met his biological father, he has minimal contact with him.

[29] Mr. Callaghan advised the author of the pre-sentence report, Lisa Toomey, that he has always had an excellent relationship with his parents, and described the family as tight-knit. Both parents worked hard to provide for their children, but sometimes struggled financially. For example, when he was seven years old, the family resided briefly at a shelter until they were able to obtain government housing. Defence counsel advised that they sometimes relied on food banks.

[30] Mr. Callaghan left home when he was seventeen years old because he “wanted his own space.” The conditions in his home were apparently quite crowded. He moved in with friends, but continued to attend school. He graduated from high school when he was eighteen.

[31] Following his graduation, Mr. Callaghan got a job loading and unloading trucks, which he held for two years until he was laid off. He then worked for a metal polishing company. After he was laid off from that job, he had difficulty securing employment and, for the next year, was dependent on employment insurance.

[32] Mr. Callaghan advised Ms. Toomey that from 2004 to 2008, he received social assistance, and supplemented his income by trafficking in narcotics. He attributed his and his friends’ criminal activities to the poor environment in which they lived, and the need to survive.

[33] When questioned by Ms. Toomey as to the quantity of drugs that he was trafficking, Mr. Callaghan appeared to regard that information as irrelevant – he responded by asking her why she was asking such a question.

[34] Mr. Callaghan took a similar position with respect to questions about past associates and gang affiliations. Although he was convicted in 2008 of committing an offence for the benefit of a criminal organization, Mr. Callaghan denied gang membership, and stated that he and his friends had been unfairly labelled by the police and the criminal justice system as gang members.

[35] Mr. Callaghan has a daughter, age 10 (DOB April 22, 2006), and a son, age 6 (DOB June 6, 2010). He reported that he had an “on-again off-again” relationship with their mother, Rose Martinez, from the time that he was 16 until he was 30 years old. Although they are no longer in a relationship, he and Ms. Martinez remain on cordial terms. This has made it easier for Mr. Callaghan to maintain contact with his children, whom he calls on a regular basis from the Toronto South Detention Centre. The children have also visited him at the jail.

[36] In a letter filed with the court, Mr. Callaghan’s daughter indicates how much she and her brother miss their father. Mr. Callaghan’s criminal activities have indeed resulted in his being absent from his children’s lives for substantial periods of time. His daughter was only five months old when, on September 21, 2006, he received the 22-month sentence on the charges of possession of cocaine for the purpose of trafficking and the unlawful possession of a firearm. On June 23, 2008, when she was only two years old, he received the sentence of four-and-a-half years, in addition to 9 months of pre-trial custody. Mr. Callaghan’s son was conceived during a conjugal visit while he was serving that sentence, and was born just shortly before Mr. Callaghan was paroled at the end of June 2010. Mr. Callaghan has been in custody on these charges for the last two years and eight months.

[37] Mr. Callaghan met his current girlfriend, Ms. Roche, about three months prior to his arrest on these charges. She is aware of his criminal antecedents, and remains supportive of him.

[38] Ms. Toomey testified that she made various attempts to contact Ms. Roche and Mr. Callaghan’s parents using the telephone numbers that he provided to her. She was unsuccessful in reaching Ms. Roche, and neither Pauline Williams nor Vinroy Williams returned her calls. Defence counsel challenged Ms. Toomey’s evidence in this regard, and took the position that Ms. Roche and Mr. Callaghan’s parents were never called and received no messages. However, no evidence was adduced to contradict Ms. Toomey’s evidence, even though Ms. Roche and Mr. Callaghan’s parents have been in the courtroom at various times during the trial and these sentencing proceedings.

[39] Ms. Toomey came across as an honest witness who gave her evidence in a straightforward manner. She had no motive to lie about the efforts she made to contact members of Mr. Callaghan’s family, whom she regarded as potential sources of information regarding his background, and who might be able to provide further insight into his criminal behaviour. I accept her evidence and find that, for one reason or another, Ms. Roche and Mr. Callaghan’s parents chose not to speak to her or answer questions she may have had about Mr. Callaghan’s upbringing, lifestyle, associates, etc.

[40] That said, I do not doubt that Ms. Roche and Mr. Callaghan’s parents are very supportive of Mr. Callaghan. As stated, all of them have been in court at various times during these proceedings. In letters filed with the court, his parents have expressed their deep love for their son and support of him. Vinroy Williams indicates that he owns a cleaning company, and hopes one day to employ Mr. Callaghan as the assistant manager. Other family members, including Mr. Callaghan’s brother, sister, and a cousin, have also provided letters of support. Another brother has attended in court.

[41] While serving the six-year sentence, Mr. Callaghan obtained his forklift licence, construction licence, and safety/excavation certification. He also completed a culinary arts program and obtained certification that would allow him to work as an assistant chef. He has yet to receive the designation that would permit him to work as a head chef.

[42] After he was paroled in June 2010, Mr. Callaghan lived in a half-way house in Hamilton, where he obtained a job with a metal company. He held that job until the end of 2011, when he was charged with impaired driving and his parole was suspended. By the time it was reinstated eight weeks later, he had lost that job.

[43] Mr. Callaghan takes issue with Ms. Toomey’s statement in the pre-sentence report that he was unemployed and dependent on social assistance from 2012 until his arrest on these charges in July 2014. Defence counsel advises that during that period, Mr. Callaghan worked four days a week through temporary employment agencies in Toronto. For the purposes of this sentencing hearing, I accept counsel’s description of Mr. Callaghan’s work record during that period.

[44] Mr. Callaghan has completed four correspondence courses through Centennial College while incarcerated at the Toronto South Detention Centre. The courses, for which he received two B+s and two C+’s, were completed between the fall of 2014 and the summer of 2015, and count as credits toward a Business Management Diploma. Mr. Callaghan has stated that he intends to complete the practical component of the program upon his release from custody.

[45] The pre-sentence report indicates that Mr. Callaghan takes responsibility for the offences of dangerous driving and failing to stop his vehicle while being pursued by the police. However, he does not take responsibility for any of the other offences for which he has been convicted, and has expressed no remorse with respect to them.

Position of the Parties

[46] The position of the Crown is that a global sentence of 11 to 13 years, less credit for time served in pre-sentence custody, calculated on the basis of a 1.5:1 ratio, is appropriate. The Crown relies on R. v. Bellissimo, 2009 ONCA 49, where the court held that the range of sentence for these kinds of serious gun-related offences is between seven and eleven years. Crown counsel submits that the serious nature of the offences and Mr. Callaghan’s criminal record demand that the emphasis be on denunciation and deterrence. Mr. Callaghan’s two-year sentence for the unauthorized possession of a firearm and possession of a Schedule I drug for the purpose of trafficking, followed two years later by a six-year sentence for gun and drug offences did not deter him from carrying a loaded gun in a public place. The only difference this time is that he “ramped up his criminal activity” by firing it at someone. Moreover, he was in breach of two weapons prohibition orders at the time – offences that call for consecutive sentences, as do the offences of dangerous driving and failing to stop while being pursued by the police, which were committed two days later.

[47] Crown counsel questions Mr. Callaghan’s prospects for rehabilitation, given his refusal to take responsibility for his past actions; for example, his denial of any gang activity, despite a criminal conviction for having committed an offence for the benefit of a criminal organization. He also has a history of breaching court orders.

[48] In addition to Bellissimo, the Crown referred to R. v. Jefferson, 2014 ONCA 434, and R. v. Kreko, 2016 ONCA 852 with respect to the offence of discharging a prohibited firearm with intent to wound or endanger life pursuant to s. 244 (2)(a) of the Code. The mandatory minimum sentence for this offence is five years. Crown counsel also referred to R. v. Ferrigon, 2007 ONSC 16828, [2007] O.J. No. 1883 (Sup. Ct.), where the accused was charged with possession of a loaded prohibited handgun and related offences, as well as two counts of breaching weapons prohibition orders.

[49] The position of the defence is that a global sentence of eight years, less credit for time spent in pre-trial custody, is fit and proper in all of the circumstances. Defence counsel submits that Mr. Callaghan’s case falls outside the range in Bellissimo. She pointed out that no one was injured, and Mr. Callaghan did not initiate the gunfire. The court must also bear in mind the “jump” principle, as well as the principle of totality. An eight-year term would adequately serve the objectives of denunciation and deterrence, but also recognize what defence counsel submits are Mr. Callaghan’s very real prospects for rehabilitation.

[50] Cases relied on by the defence with respect to the discharging of a firearm include: R. v. Barr, 2016 BCSC 193; R. v. Abdullahi, 2014 ONSC 272; R. v. Alexander, 2013 ONSC 171; R. v. Ivanic, 2011 BCCA 158; R. v. Leveque, 2006 ONCA 40000; R. v. Jackson, 2002 ONCA 41524; and R. v. Farquharson.

[51] In terms of the offence of possession of a loaded firearm, defence counsel referred to Ferrigon, as well as the following cases: R. v. Tully, 2014 ONSC 382; R. v. Grizzle, 2013 ONSC 6523; and R. v. Iyeke, 2009 ONSC 1348.

[52] Defence counsel also submits that enhanced credit for particularly harsh pre-sentence incarceration conditions should be granted as a result of the numerous “lockdowns” at the Toronto South Detention Centre (“TSDC”), where Mr. Callaghan has been incarcerated for the last 2 years and 8 months. Ms. Cremer referred to the following cases: R. v. Bedward, 2015 ONSC 939; R. v. Doyle, 2015 ONCJ 492; R. v. Edwards-Lafleur, 2016 ONCJ 97; R. v. Shah, 2016 ONSC 2651; and R. v. Williams, 2016 ONCJ 96.

[53] Crown counsel takes the position that no enhanced credit should be granted as there is no evidence regarding the impact of the lockdowns on Mr. Callaghan. Ms. Bellmore relies on the recent decision of the Court of Appeal in R. v. Duncan, 2016 ONCA 754 in this regard.

The Principles of Sentencing

[54] The fundamental purpose of sentencing, as set out in s. 718 of the Code, is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following six objectives: denouncing unlawful conduct; deterring the offender and other persons from committing crimes; separating offenders from society, where necessary; assisting in the rehabilitation of the offender; providing reparations for harm done to victims or the community; and promoting a sense of responsibility in the offender.

[55] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.

[56] A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender: s. 718.2.

[57] Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle of totality requires the court to craft a global sentence that is not excessive: s. 718.2 (c).

[58] Finally, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: 718.2 (b). Bearing this principle in mind, I have reviewed and considered the cases referred to by counsel in their submissions.

Case Law

[59] In Bellissimo, the respondent fired several shots in a restaurant. One person was significantly injured, and another received minor injuries. A third person narrowly missed being killed. The trial judge imposed a sentence of eight-and-a-half years’ imprisonment. In allowing the appeal and increasing the sentence to ten years, the court held that the range of sentence for these kinds of serious gun-related offences is between seven and eleven years. The principles of general deterrence and denunciation must be given paramount weight.

[60] There is no indication in the endorsement as to whether the respondent had a criminal record or any prior firearms-related convictions.

[61] In Jefferson, the appellant received a global sentence of ten years for discharging a firearm, possession of a firearm while prohibited, and four probation breaches. The appellant shot a former friend and fellow drug dealer. They apparently had a jointly-held belief that the other had ratted him out to the police. The appellant walked onto the road, stopped in front of the vehicle in which the victim was a passenger, pulled out a gun, and shot the victim through the car window. The bullet hit the victim in the arm. In upholding the sentence, the court noted that it was within the seven to eleven year range set by the court in Bellissimo. The appellant’s crime and circumstances put him at the upper end of that range.

[62] In Kreko, the 22-year-old appellant pleaded guilty to possession of a loaded prohibited firearm, robbery with a handgun, and the intentional discharge of a firearm. The trial judge imposed a sentence of 13 years. The appellant had approached the victim with a gun in his hand and with his face masked by a bandana. There was a struggle. The gun went off and the bullet hit the ground. The appellant took a necklace and cell phone from the victim before fleeing on foot. The victim chased the appellant in his car and struck him with enough force to crack the windshield when the appellant’s body hit it. The appellant then fired three shots at the car. One bullet went through the headrest and entered the victim’s scalp, but did not penetrate or fracture his skull, and caused no serious injury. The appellant accidentally shot a bullet into his own leg, which required surgery and left him with permanent physical problems.

[63] The appellant, who was genuinely remorseful, was an Aboriginal who had been adopted by non-Aboriginal parents. He had struggled with his identity for many years, but had successfully completed a number of rehabilitative Aboriginal programs. There was a consensus that there was a real possibility of rehabilitation. The court held that the trial judge erred in failing to take into account the appellant’s Aboriginal background, and reduced the sentence to nine years. At para. 31, the court noted that the offences were committed in violation of two weapons prohibition orders and in violation of a conditional sentence, which included house arrest and a prohibition of possession of a weapon. These were seriously aggravating factors. The seriousness of the offences required a severe sentence.

[64] The court in Kreko did not set out the appellant’s criminal record, but noted that he had never received sentences imposing further custodial time in addition to pre-trial custody.

[65] In Leveque, which preceded Bellissimo, the 26-year-old appellant was convicted of attempted murder, using a firearm, threatening death, unlawful possession of a loaded restricted firearm, being an occupant of a motor vehicle with a firearm, and breach of a recognizance. He had an affair with the complainant’s wife, and threatened to kill the complainant when confronted about the affair. He subsequently fired two shots from a handgun at the complainant in a residential area when the complainant pulled his vehicle alongside the accused’s vehicle. One shot went astray, and the other passed in front of the complainant and his passenger. The appellant had a record for dangerous driving, unlawful possession of a restricted weapon, assault, obstructing police, and possession of cocaine for the purpose of trafficking. He was also subject to three weapons prohibitions at the time. The trial judge imposed a sentence of eight-and-a-half years on the attempted murder charge, nine months consecutive for threatening death, and concurrent sentences on the remaining counts. In reducing the sentence on the attempted murder to six-and-a-half years, the court noted that the appellant had eventually surrendered the weapon and had a two-year gap in his record. The court also held that the trial judge failed to give adequate consideration to the fact that the victim suffered no injuries. While this was fortuitous, it took the case out of the range of sentences imposed in similar circumstances when serious injury has been caused. The nine-month sentence remained unchanged. The total sentence was therefore seven years and three months.

[66] In Barr, the 36-year-old accused was convicted of discharging a firearm with intent to wound, maim or disfigure. He shot the victim in the arm, leg, and hip, causing serious and life-threatening injuries. The accused and complainant had been involved in a marijuana grow operation. The accused had attended at the victim’s home with a loaded shot gun and shot him at close range. The accused had a very dated criminal record, consisting of three convictions: an assault, a break and enter, and an “over 80”, in 1996, 1997, and 2000, respectively. Notably, there were no prior convictions for firearms offences or breaches of weapons prohibition orders. Mitigating factors included the accused’s insight into his addiction, his good employment record, and his supportive family. Despite the violent nature of the offences, there was still hope for rehabilitation. Aggravating factors included the serious nature of the victim’s injuries, and the fact that the accused went to the victim’s home and attacked him in a residential neighbourhood. The trial judge imposed a sentence of seven years.

[67] In Abdullahi, the accused pleaded guilty to recklessly discharging a firearm, unlawful possession of that firearm, and possession of an over-capacity handgun magazine. He had fired a gun three times into the air in a housing complex after his companion was shot in the leg by a person who was not arrested. The companion also had a loaded handgun. The accused retrieved the shell casings before leaving the scene. He had a minor criminal record, was remorseful, and had taken steps towards rehabilitation while in custody. He did not apply for bail and had waived his preliminary hearing. The position of the defence was that a six to 12 month sentence, in addition to two years of pre-trial custody was appropriate. The Crown asked for a sentence of six years. The trial judge imposed a sentence of five years, less credit for pre-trial custody.

[68] In Alexander, the 29-year-old accused was convicted of discharging a firearm to prevent his arrest, reckless discharge of a firearm, unlawful possession of an over-sized magazine, possession of a firearm while prohibited, and two counts of breach of recognizance. The accused had discharged a firearm at a loss prevention officer who was pursuing him through the food court in a shopping mall. He had a lengthy criminal record, including three robbery convictions, four counts of assault causing bodily harm, and one conviction for assault. He did not, however, have any previous convictions for firearms offences. The trial judge imposed a sentence of nine years, consisting of seven years for discharging a firearm, six months consecutive for possession of the overcapacity magazine, and a further one-and-a-half years consecutive for the breach of court orders. A three-year concurrent term was imposed for the unlawful possession of a firearm.

[69] In Ivanic, the 22-year-old appellant pleaded guilty to four counts of transferring a firearm without a licence, possession of a loaded restricted firearm without a licence, and possession of cocaine for the purpose of trafficking. Following a trial, he was also convicted of discharging a firearm with intent to wound, and aggravated assault. The appellant had gone to an apartment building to buy a kilogram of cocaine for $25,000 from the complainant who, along with two others, planned to rob him of the money. As the appellant and complainant proceeded up a stairwell, one accomplice appeared at the bottom of the stairs, holding a gun. A second accomplice, who was stationed in the stairwell, began descending the stairs. The appellant produced a gun and then, using the complainant as a shield, shot and struck the man coming down the stairs. (The appellant was acquitted of the charges relating to that shooting on the basis of self-defence.) He then shot at the man at the foot of the stairs, but missed. By the time the appellant reached the exit, the complainant was standing on the other side of the landing, backed into a corner with his hands up. He did not have a gun. The appellant shot him twice in the arm.

[70] The trial judge calculated what she determined was the appropriate sentence for each of the 11 counts. The result was a sentence of 15 years, which she reduced to eight years on the basis of the principle of totality. After crediting the appellant with time served in pre-trial custody, she imposed a sentence of four years and four months. The appellant’s criminal record consisted of a conviction for drug trafficking, for which he had received a conditional sentence and a mandatory firearms prohibition. He had a supportive family but little insight into the damage his actions had caused. The British Columbia Court of Appeal allowed the appeal, holding that the trial judge erred in failing to impose a sentence on each count after determining the appropriate global sentence. However, the court upheld the eight-year sentence, and found that, if anything, the sentence was at the low end of the appropriate range. At para. 21, the court noted that there were a number of people coming and going when the shoot-out occurred, and that it was a matter of good luck that no innocent person was caught in the cross-fire.

[71] The cases of Jackson and Farquharson pre-date Bellissimo.

[72] In Jackson, the 20-year-old appellant was convicted of discharging a firearm with intent to endanger the life of a police officer, possession of an unregistered restricted firearm, carrying a weapon for a purpose dangerous to the public peace, and discharging a firearm with intent to prevent arrest. The jury was unable to reach a verdict on a charge of attempted murder, and the Crown did not pursue that charge any further.

[73] The appellant and a friend had been riding double on a bicycle on a sidewalk when a police officer attempted to stop them. The appellant, who was armed with a loaded revolver, jogged away. As he was jogging, he turned and fired a shot in the direction of the officer. He then stopped and fired a second shot in the officer’s direction. [The appellant testified that he fired the shots over the officer’s head.] No one was injured. The appellant fled and hid the revolver behind a fire hose in a building. It was later recovered and found to contain four bullets.

[74] The appellant had a prior conviction for assault. He was a grade 12 student at the time of the offence. Letters of support from his teachers were filed on his behalf. Another teacher testified that although the appellant had difficulty “in adjusting to the complexity of a multicultural society”, he had shown himself to be articulate, sensitive, and intelligent, with a “voracious appetite for books.”

[75] The trial judge imposed a sentence of seven years for the offence of discharging a firearm with the intent to endanger life, and concurrent sentences on the remaining counts. Given the time spent in pre-trial custody, the sentence was equivalent to a ten-year term. In reducing the sentence to seven years, the Court of Appeal referred to the appellant’s young age, his minor criminal record, and his prospects for rehabilitation.

[76] In Farquharson, the 31-year-old accused was convicted of a number of offences involving a Glock 19 handgun, including discharging it with the intent to endanger life, two counts of pointing a firearm, possession of a prohibited weapon, failing to comply with a weapons prohibition order, possession of cocaine for the purpose of trafficking, and possession of marijuana. The accused had confronted the two complainants in their vehicle. He put his hand in the passenger window, pointed a gun at one of them, argued with the other, and returned to his parked jeep. One of the complainants left but returned to the area, exited his car, and threw a bottle at the accused’s jeep. The accused and his passenger then exited the jeep and began shooting. One of the bullets struck the complainant’s vehicle. Fortunately, no one was injured although, as the trial judge noted at para. 4 of his reasons for sentence, they may very well have been,

[77] The accused was a father of two young children who resided with their mother. He was in regular contact with them, and contributed to their support. He had good prospects for employment, and no prior convictions for firearm-related offences. His criminal record consisted of an entry for assault to resist arrest and assault causing bodily harm. Taking into account the principle of totality, the trial judge imposed a global sentence of seven-and-a-half years, five of which were for the offence of discharging the firearm. A sentence of one year consecutive was imposed for possession of a prohibited weapon, six months consecutive for breaching a weapons prohibition order, and one year consecutive for the possession of cocaine for the purpose of trafficking. The sentences for the remaining offences were concurrent.

[78] The following cases deal with sentences for the unlawful possession of a loaded firearm, as opposed to the discharging of a firearm.

[79] In Ferrigon, the accused, age 24, was convicted after trial of possession of a loaded firearm and two counts of breaching firearm prohibition orders. Mr. Ferrigon had two prior convictions for possession of a firearm. In arriving at an appropriate sentence, Molloy J. considered the “jump” principle, but found that it had limited application because, among other things, it would not address the seriousness of the offence and the danger to society that it represented. The accused was not remorseful about carrying a gun, was not deterred by court orders, and was likely to re-offend upon release. Rehabilitation was unlikely, at least in the short term. Molloy J. imposed a sentence of five years for possession of the loaded firearm, and 18 months on each of the breach offences, to be served concurrently to each other but consecutive to the five-year term, for a total sentence of six-and-a-half years.

[80] At paras. 65-66, Molloy J. observed that from a practical point of view, it may not matter whether one treats the breach of a prohibition order as an aggravating circumstance that lengthens the sentence on the main offence, or makes the sentence for the breach a separate and consecutive sentence. However, making the prohibition order sentence concurrent to other sentences gives the appearance that it has had no effect on the total sentence imposed. I agree with Molloy J. that “that is an inappropriate impression to create, given the underlying societal problems that prompted the enactment of this provision and the importance of ensuring that orders of the court are respected and obeyed.”

[81] In Ferrigon, at paras. 25-29, Molloy J. emphasized that the protection of society must be a paramount consideration when sentencing for offences involving loaded handguns, and that general and specific deterrence and denunciation of the conduct involved are of particular importance in these cases. At para. 25, she stated:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it [as, I might add, both the cyclist and Mr. Callaghan demonstrated in the present case.] Otherwise, there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[82] Molloy J. went on to quote Armstrong J.A. in R. v. Danvers, 2005 ONCA 30044, at para. 78:

There is no question that our courts have to address the principles of denunciation and deterrence for gun-related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause of major concern in the community and must be addressed.

[83] In Tully, the 28-year-old accused was convicted of possession of a loaded prohibited firearm and other related offences. This was his third conviction in six years for the same offence. He was also convicted of being in breach of two prior weapons prohibition orders, and being in possession of marijuana for the purpose of trafficking. He had a close and supportive family, and had worked part-time as a general labourer for his step-father. He had an 18-month old son. After noting that the accused’s daughter was just over one year old when the accused was sentenced for his second offence of possession of a loaded prohibited firearm, the trial judge observed that “having his own children has not seemed to have had any deterrent or rehabilitative effect on Mr. Tully.” She imposed a global sentence of nine years, consisting of six-and-a-half years for the weapons offence, and 15 months consecutive for each count of breaching the weapons prohibition order. A sentence of one year concurrent was imposed with respect to the drug conviction.

[84] In Grizzle, the trial judge imposed a sentence of six-and-one-half years for possession of a loaded firearm and one year consecutive for possession of a firearm in breach of a prohibition order following a trial. The gun was located in a suitcase on the floor of the bedroom where two young children were sleeping. The accused, age 24, had a lengthy, serious, and escalating criminal record, including a conviction for possession of a prohibited weapon and attempted murder using a firearm. He had a high school education, a history of some sporadic employment, and support from his family.

[85] In Iyeke, the accused was convicted of the offences of weapons dangerous, possession of a loaded restricted weapon, possession of a firearm contrary to a prohibition order, and possession of ammunition contrary to a prohibition order. It was the accused’s second firearms offence and second conviction for breaching a prohibition order. Police arrived on scene in response to a 911 call that shots had been fired at a particular address. When they stopped a car matching the description given by the caller, the accused, who was driving the vehicle, tried to flee but was eventually caught. The accused tested positive for gunshot residue. The police later found a loaded semi-automatic handgun in a garden a few metres from where the accused had been arrested. A casing fired from that handgun was found in the driveway of the home where the gunshots were heard. The trial judge imposed a global sentence of five-and-a-half years, consisting of four years on the weapons dangerous and possession charges, and 18 months on each of the breach of prohibition counts, to be served concurrently to each other but consecutively to the four-year term. The primary aggravating factor was the accused’s criminal record. Mitigating factors included the fact that he was only 24 years old, and was raised by a single mother in a violent gang-infested area of the city. Although he had not expressed any remorse, he had expressed a determination to go back to school and become a productive member of society.

The Aggravating and Mitigating Factors in this Case

[86] Sentencing is a highly individualized process that requires the assessment of many factors in order to determine the most appropriate sentence.

[87] Aggravating factors in this case include Mr. Callaghan’s criminal record, which includes convictions for guns and drugs. In 2006, he was convicted of the unauthorized possession of a firearm and possession of a Schedule I drug for the purpose of trafficking. Two years later, in 2008, he was convicted of two firearms offences – possession of a loaded prohibited firearm and firearm trafficking – and two drug offences, consisting of trafficking and possession of a Schedule I drug for the purpose of trafficking. He was also convicted at that time of committing an offence for a criminal organization, and two counts of failing to comply with a recognizance.

[88] This is now the third time that Mr. Callaghan has been convicted of gun-related offences. It is apparent that the sentences that he received in 2006 and 2008 – the equivalent of two years and six years, respectively – did not have the desired deterrent effect on him, even though the six-year sentence was triple the length of the previous sentence and represented a sizable “jump”. In fact, as Crown counsel put it, Mr. Callaghan has actually “stepped up his game”, as he now stands convicted not only of possession of a prohibited loaded handgun but of the more serious offence of discharging it.

[89] The fact that no one was injured is not a mitigating factor. It is strictly fortuitous that either Mr. Callaghan had a poor aim, or the cyclist was adept at dodging bullets. Mr. Callaghan fired two bullets in the cyclist’s direction of flight, and attempted to fire a third shot but the bullet jammed in the chamber. Had that not happened, Mr. Callaghan was in a position to fire more shots, as there were eight more bullets in the high-capacity magazine.

[90] Defence counsel pointed out that the cyclist shot at Mr. Callaghan before Mr. Callaghan opened fire. However, as Crown counsel observed, that fact reflects or speaks to Mr. Callaghan’s high-risk lifestyle. Mr. Callaghan was clearly ready for such a risk, as he had a loaded prohibited semi-automatic pistol immediately available to him to return the fire.

[91] Mr. Callaghan reacted to being shot at by shooting, but he had other options. His firing of the gun, which took place in a residential neighbourhood, put the public at risk. It is indeed fortunate that there were no other people outside at the time. I note that it was not that late. It was just past midnight.

[92] Mr. Callaghan was the subject of two weapons prohibition orders at the time of these offences. His history of violating court orders, which includes five prior convictions for failing to comply with a recognizance, is an aggravating factor.

[93] Mr. Callaghan is not a youthful offender. He was 32 years old when he committed these offences.

[94] Mr. Callaghan does not benefit from the mitigating factor of remorse. He does not take any responsibility for these offences, other than the charges of dangerous driving and failing to stop when pursued by police.

[95] The pre-sentence report raises some concerns with respect to Mr. Callaghan’s reluctance to take responsibility for his actions, and his willingness to place the blame elsewhere. For example, Mr. Callaghan described his drug-trafficking activities between the years 2004 and 2008 as “necessary” in order to survive in the environment in which he lived. I note, however, that none of Mr. Callaghan’s siblings or other members of his immediate family found it “necessary” to commit crimes in order to “survive.” None of them have criminal records. Mr. Callaghan has had the support of his family, which he described as close-knit, throughout his life. Despite that support, and loving parents with whom he reportedly has an excellent relationship, Mr. Callaghan chose to engage in criminal activity.

[96] Mr. Callaghan denied gang membership, despite his 2008 conviction for committing an offence for a criminal organization. Mr. Callaghan blamed the police and the criminal justice system for wrongfully labelling him and his friends as gang members.

[97] Mr. Callaghan’s reluctance to take responsibility for his actions does not bode well for his rehabilitation.

[98] The dangerous driving offence took place on July 24, 2014, over the course of about half an hour. Mr. Callaghan was pulled over by police in Etobicoke shortly after 3:00 a.m. What followed was a dangerous chase that he initiated. He took off, drove to Oakville, returned to Etobicoke, and ended up in Rexdale, where his vehicle was found abandoned at 3:37 a.m. During that period of time, Mr. Callaghan endangered the public by going through two red lights at a high rate of speed and without slowing down. He also endangered the safety of maintenance workers who were setting up barriers at the Mississauga exit along the QEW. Mr. Callaghan continued driving at excessive rates of speed through an area of residential and commercial buildings. When exiting the Rexdale off-ramp from Highway 427, he was going so fast that it was questionable whether he would be able to safely execute the bend in the road.

[99] In terms of mitigating factors, Mr. Callaghan has the support of his family and the prospect of employment with his step-father’s cleaning company. He has a high school education, which, in the circumstances, most likely required some tenacity to complete. He continued to attend school after leaving home at the age of 17 and while living with friends.

[100] Mr. Callaghan has furthered his education while in custody. He took advantage of various training programs and completed a culinary arts program while serving his penitentiary term. While in custody awaiting this trial, he completed four courses towards a diploma in business management. He has indicated to the court his intention to complete the practical component of this course upon his release, in order to better his employment options.

[101] There have been a number of periods during Mr. Callaghan’s life when he has had steady employment; for example, after graduating from high school, he held a job for two years loading and unloading trucks, which was followed by a job with a metal polishing company. He also worked for a metal company from June 2010 until the end of 2011, when he was charged with impaired driving. After his parole was reinstated, he worked for temporary agencies in Toronto.

[102] Mr. Callaghan has expressed a desire to play a significant role in the lives of his children and to take on the responsibilities of a father. To that end, he has maintained contact with his children over the telephone while incarcerated, and the children have also visited him in jail. It remains to be seen whether his desire to spend more time with his children will sufficiently motivate Mr. Callaghan to avoid any further contact with the criminal justice system. Thus far, like the accused in Tully, having his own children has not deterred Mr. Callaghan or had any rehabilitative effect on him.

Whether enhanced credit should be granted for particularly harsh presentence conditions

[103] Defence counsel submits that a further mitigating factor is the number of lockdowns to which Mr. Callaghan has been subjected during the 975 days that he has been incarcerated at the TSDC, and the effect that those lockdowns may have had on him. There was no evidence adduced from Mr. Callaghan himself with respect to this issue. Rather, the defence relied on the evidence of Travis Williamson, who is a sergeant at the TSDC and currently assigned to the security department. The majority of the lockdowns were caused by staff shortages.

[104] Crown counsel opposes the granting of any credit over and above the 1.5 credit referred to in s. 719(3.1) of the Code, and relies on the Court of Appeal’s recent decision in Duncan. At para. 6, the court in Duncan confirmed that in appropriate circumstances, particularly harsh presentence conditions can provide mitigation apart from and beyond the 1.5 credit. However, in considering whether any enhanced credit should be given, the court must consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.

[105] In Duncan, the court declined to grant any enhanced credit to the appellant. Although there was evidence that the appellant had served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues, there was no evidence of any adverse effect on the appellant flowing from the locked down conditions. At para. 7, the court stated that although the pattern of “lockdowns” endured by the appellant was worrisome, without further evidence as to the effect of those conditions, the court could not say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5:1 credit.

[106] Crown counsel noted that the cases relied on by the defence with respect to enhanced credit for particularly harsh presentence conditions all pre-date Duncan.

[107] Crown counsel also noted that on each occasion that Mr. Callaghan has attended in the Superior Court, commencing on July 30, 2015, he has, through his counsel, requested that he remain at the TSDC. The Crown acknowledges that there may be various reasons why Mr. Callaghan has wanted to remain at this facility, notwithstanding what he alleges are particularly harsh presentence conditions. Such reasons could include access to counsel and the fact that his family lives in Toronto.

[108] As stated, the evidence regarding lockdowns was, for the most part, adduced through the testimony of Sergeant Williamson. Unlike the accused in Bedward, Mr. Callaghan did not file an affidavit or testify with respect to this issue.

[109] Sergeant Williamson originally attended in court on September 26, 2016, for the purpose of providing documentation regarding the number of lockdowns during Mr. Callaghan’s incarceration. The information contained in those documents, however, proved to be in error. When Sergeant Williamson re-attended on January 27, 2017, he outlined the efforts that he had made to obtain more accurate information. Unfortunately, the latest document that he has produced is flawed because it depends on data entered by different people who may not have been using the words “full” and “partial” in a consistent way when describing lockdowns. Some may have used the word “full” to describe a lockdown that affected all units within the detention center, while others may have used the word “full” to describe a lockdown that lasted a “full” day but did not necessarily affect all units. Similarly, some may have used the word “partial” to indicate that only part of the institution was locked down, while others may have described a lockdown as partial when the entire facility was affected but only for part of the day.

[110] As a result of the confusion regarding the use of the terms “full” and “partial”, there is no way for this court to determine how many of the 387 lockdowns that occurred between August 24, 2014, and January 15, 2017 – the period for which data is available – affected Mr. Callaghan.

[111] For example, the lockdowns on October 12, November 6, and December 7, 2014, are described as “partial.” If “partial” refers to the fact that only part of the facility was locked down, there is no way to ascertain whether Mr. Callaghan was affected, as there is no reference to which specific units were locked down. On the other hand, if “partial” was used to indicate that the entire facility was locked down but only for part of a day, all of the inmates, including Mr. Callaghan, would have been affected, but it is not known for how long. There is no indication as to when the lockdown began or ended.

[112] According to Crown counsel’s tally, there are 52 times that lockdowns are described as “partial” and where, as a result of confusion surrounding that term, it cannot be determined whether Mr. Callaghan’s unit was affected.

[113] Some entries describing “full” lockdowns include the time at which the lockdowns went into effect. For example, on July 27, 2015, the lockdown is described as “Full @ 1800.” Sergeant Williamson testified that this entry describes a lockdown that, in effect, was three hours in length, as inmates are confined to their cells from 9:00 p.m. to 7:00 a.m. every day in any event. However, many of the lockdowns described as “full” have no indication of the time at which they commenced.

[114] Sergeant Williamson testified that a lockdown described as “full” may actually have become “partial” as a result of more staff showing up for work during the day. For example, a lockdown may have come into effect due to a staffing shortage at 7:00 a.m. However, if more staff were available at 10:00 a.m., some units would be re-opened – a fact that would not be reflected in the records.

[115] Defence counsel submits that Sgt. Williamson gave inconsistent evidence as to the meaning of “full” and “partial”, and that he was not a credible witness. I agree that during parts of his testimony, Sergeant Williamson appeared to be somewhat confused, but I do not find that he intentionally misled the court. The problem with these terms appears to stem from the way in which the TSDC recorded data relating to lockdowns. I understand from Sgt. Williamson that steps have been taken or are being taken to address these deficiencies. In light of those deficiencies, and without any input from Mr. Callaghan, the court can only speculate as to the number and length of the lockdowns to which he was subjected.

[116] There is some evidence that the document produced by Sergeant Williamson does not capture all the lockdowns that occurred in February 2015. That document indicates that lockdowns took place on February 1, 2, 6, 8, 10, 14, 22, and 25 to 27. However, on Thursday, February 12, 2015, Mr. Callaghan was not brought to court for the first day of his preliminary hearing as a result of a lockdown, which was apparently triggered by an inmate suicide and security concerns regarding a set of master keys to various doors in the jail that had gone missing. In her comments to the provincial court judge that day, defence counsel referred to a three-day lockdown, commencing on February 10. She also commented on the difficulty she had in meeting with Mr. Callaghan for more than a few minutes during the prior week-and-a-half as a result of problems at the TSDC.

[117] Sergeant Williamson testified that when a lockdown is in effect for an entire day, inmates are confined to their cells for the day, except for 60 minutes, during which time they may access the yard, shower, and use the telephone. The “yard” consists of a concrete pad with basketball hoops and ceiling vents to the outdoors. Sergeant Williamson acknowledged that this 60-minute interval may not always happen during a lockdown. It is also possible that there could be line-ups to use the telephones or showers.

[118] A cell is ten feet by ten feet. No more than two inmates share a cell. Unlike the situation in Edward-Lafleur and Williams, there is no evidence of triple bunking in this case. I note that according to the Supplementary Appeal Book filed in Duncan, the accused was triple bunked on eight occasions.

[119] Sergeant Williamson testified that the detention centre does its best to accommodate visits from family, friends and lawyers during lockdowns, but there are circumstances where all visits are cancelled. He noted that professional visits are not cancelled during lockdowns as frequently as they used to be. He had no knowledge as to whether or how many times lockdowns impaired Mr. Callaghan’s ability to consult with counsel or visit with family members or friends. There is no evidence that any appointments that Mr. Callaghan may have had with a doctor, dentist, or eye specialist were delayed. Unlike the accused in Doyle, who suffered from diabetes, there is no evidence that Mr. Callaghan’s health has been compromised by his pre-trial detention.

[120] During lockdowns, inmates have their meals in their cells, as opposed to in the open range area. Sergeant Williamson acknowledged that meals may be delayed during lockdowns. Clothing changes may not happen, or they could be delayed for a day or two.

[121] Defence counsel’s comments regarding the lockdown in February 2015 suggest that at least on that occasion, Mr. Callaghan’s access to counsel was affected, and that there was “a problem” with respect to the delivery of meals and the availability of showers.

[122] Sergeant Williamson acknowledged that there are a fair number of floods at the detention centre as a result of overflowing toilets. A flood affecting one or two cells would not result in a lockdown. However, a lockdown would go into effect in the case of massive flooding. There is no evidence as to whether Mr. Callaghan has been affected by flooding while incarcerated at the TSDC.

[123] It is apparent that lockdowns have not affected Mr. Callaghan’s ability to further his education. He completed four business courses over the course of 2014 and 2015.

[124] In my view, this is not an appropriate case to grant credit over and above the 1.5 credit referred to in s. 719(3.1) for the following reasons. First, based on the evidence, it is impossible to determine the total number of times that the unit where Mr. Callaghan was housed was subject to a lockdown. Secondly, if Mr. Callaghan’s unit was locked down, it is not clear in many instances how long the lockdown was in effect. Thirdly, other than the comments by defence counsel in provincial court on February 12, 2015, regarding a lockdown at that time, there is no evidence as to any adverse effect on Mr. Callaghan flowing from the locked down conditions. In these circumstances, and in accordance with the reasoning in Duncan, I would not reduce Mr. Callaghan’s sentence to reflect any added mitigation for the conditions of pre-trial custody.

The Appropriate Sentence in this Case

[125] Clearly, denunciation, and deterrence, both general and specific, are of paramount importance in sentencing for dangerous gun-related charges.

[126] Although the primary considerations must be on deterrence and denunciation, the court must also take into account the principle of rehabilitation.

[127] In my view, the jump principle has limited application, given the seriousness of the offence of discharging a firearm pursuant to s. 244 (2)(a), and the danger to society that it represents. This offence, which carries a mandatory minimum sentence of five years, represents a dramatic increase in the severity of the offences committed by Mr. Callaghan. The sentences he received with respect to the two prior convictions for the unlawful possession of a firearm, and the two court orders prohibiting him from carrying a gun, have not deterred him. In the circumstances, a significant jump from the prior six-year sentence is called for.

[128] That said, I bear in mind the principle of totality. Where, as in this case, consecutive sentences are appropriate, the combined sentence should not be unduly long or harsh. If the total sentence is excessive, the court must adjust the sentence so that the total sentence is proper. The offences for which consecutive sentences are appropriate include: Count 6 (possession of a high-capacity magazine); Counts 10 and 11 (breach of the two weapons prohibition orders); Count 14 (dangerous driving); and Count 15 (failing to stop while pursued by police).

[129] Having considered and weighed the principles of sentencing set out in ss. 718 to 718.2 and the submissions of counsel, I have determined that the appropriate global sentence in this case is ten years, prior to granting credit for time served in pre-trial custody.

[130] Mr. Callaghan has been in custody since his arrest on July 24, 2014, or for two years and 8 months. Based on a ratio of 1.5:1, this is the equivalent of a sentence of four years. The global sentence of ten years is therefore reduced to six years.

[131] The sentences imposed on each count are as follows:

• Count 1: Discharging a firearm [s. 244 (2)(a)] – 7 years, less 4 years credit for pre-trial custody, leaving a sentence of 3 years to be served in the penitentiary;
• Count 3: Possession of a loaded prohibited firearm [s. 95 (2)(a)] – 6 years concurrent, less 4 years credit for pre-trial custody, leaving a sentence of 2 years, concurrent;
• Count 4: Possession of a firearm knowing that he was not the holder of a licence or registration for the firearm [s.92 (3)] – 5 years concurrent, less 4 years credit for pre-trial custody, leaving a sentence of 1 year, concurrent;
• Count 6: Possession of a prohibited device, to wit, a high-capacity magazine, knowing he was not the holder of a licence [s. 92(3)] – 3 months, consecutive;
• Count 8: Possession of a firearm knowing that the serial number had been removed [s. 108 (2)(a)] – 3 years, concurrent;
• Count 9: Storing a firearm in a careless manner [(s. 86 (3)(a)] – 1 year, concurrent;
• Count 10: Possession of a firearm while prohibited re September 21, 2006 order [s. 117.01 (3)(a)] – 1 year consecutive;
• Count 11: Possession of a firearm while prohibited re June 23, 2008 order [s. 117.01 (3)(a)] – 1 year consecutive;
• Count 12: Possession of a prohibited device (over-capacity magazine) while prohibited re September 21, 2006 order [s.117.01 (3)(a)] – 1 year, concurrent to sentence imposed on Count 10;
• Count 13: Possession of a prohibited device (over capacity magazine) while prohibited re June 23, 2008 order – 1 year, concurrent to sentence imposed on Count 11;
• Count 14: Dangerous driving [s. 249 (2)(a)] – 6 months consecutive; and
• Count 15: Failing to stop while pursued by police [s. 249.1 (2)] – 3 months consecutive.

[132] As stated earlier, Counts 2, 5, and 7 are stayed on the basis of the Kienapple principle.

Ancillary Orders

[133] There will be an order pursuant to s. 487.051(1) of the Code requiring Mr. Callaghan to provide the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis.

[134] There will also be a firearms prohibition order under s. 109 for life.

[135] In addition, pursuant to s. 259 (2)(c), Mr. Callaghan is prohibited from operating a motor vehicle for two years, which commences upon his release from custody.

[136] Finally, there will be a forfeiture order with respect to the firearm, magazine, and ammunition.

GARTON J. Released: March 24, 2017