COURT FILE NO.: CR-18-5-48 DATE: 20181123

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - STASKY ST. CLAIR

Counsel: Thomas Mack, for the Crown Paula Rochman, for the accused

HEARD: September 28, 2018

K.L. Campbell J.:

REASONS FOR SENTENCE

A. Overview

1The accused, Stasky St. Clair, has been found guilty of the following eight offences, all of which were committed by him in the City of Toronto on August 9, 2017:

• Possession of a loaded, prohibited firearm (a Ruger handgun), while he was not the holder of a registration certificate for the firearm, contrary to s. 95(2)(a)(ii) of the Criminal Code, R.S.C. 1985, chap. C-46;
• Possession of a prohibited firearm (a Ruger handgun), knowing that he was not the holder of a license and registration certificate for the firearm, contrary to s. 92(3)(b) of the Criminal Code;
• Being the occupant of a motor vehicle in which he knew that there was a firearm (a Ruger handgun), contrary to s. 94(2)(a) of the Criminal Code;
• Possession of a prohibited device (an over-capacity magazine) without being the holder of a license under which he may possess it, contrary to s. 91(3)(a) of the Criminal Code;
• Two counts of possession of cocaine (crack cocaine and powder cocaine) for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19; and,
• Two counts of possession of a firearm while he was prohibited from doing so by reason of an order having being made under s. 109 of the Criminal Code, contrary to s. 117.01(3)(a) of the Criminal Code.

2Essentially, in the early morning hours of August 9, 2017, two members of the Toronto Police Service happened upon the accused while he was engaged in an angry confrontation with a group of four or five young men in a parking lot. Predictably, the men dispersed with the visible arrival of the marked police cruiser. The accused returned to his vehicle, an Acura MDX, which was parked nearby. When one of the officers approached the accused to see if he was okay, the officer smelled marihuana and observed other indicia of marihuana use and, in the result, arrested the accused for the unlawful possession of marihuana. A subsequent pat-down search of the accused’s person revealed that he was, indeed, in possession of marihuana.

3One of the police officers searched the accused’s vehicle incident to the arrest, and discovered, inside an after-market compartment located on the passenger side of the front center console, an operational, nine-millimeter, Ruger model P95DC semi-automatic handgun, with an over-capacity magazine. This handgun was fully loaded with 16 bullets – 15 bullets in the magazine and one bullet in the chamber, ready to fire. The accused was not lawfully in possession of this handgun or its magazine. Indeed, at the time, the accused was subject to not one, but two, court orders prohibiting him, for the rest of his life, from the possession of such firearms.

4When the accused was subsequently taken to the 22 Division police station, he was strip-searched and the police found, in a plastic bag that the accused had secreted between the cheeks of his buttocks, a number of smaller, individually-packaged bags of powder and crack cocaine. In total, the accused was in possession of 13.64 grams of crack cocaine, and 9.44 grams of powder cocaine. These drugs had a total street value of between $2,155 and $3,672, and the accused was clearly in possession of these drugs for the purpose of trafficking.

5The accused pled not guilty to all of these charges. While the accused challenged, on a pre-trial motion, the admissibility of the firearm, over-capacity magazine, and cocaine, I concluded that all of this evidence was properly admissible. See R. v. St. Clair, 2018 ONSC 5173. Subsequently, the accused was tried by a jury and, ultimately, found guilty of the six offences in relation to the accused’s unlawful possession of the prohibited firearm, the over-capacity magazine and the cocaine. The accused then re-elected to be tried by judge alone in relation to two charges of being in possession of the firearm while prohibited by court orders and was found guilty of those two additional offences.

6The accused now appears for sentencing. The accused is a mature offender with a lengthy criminal record, which includes previous convictions for firearm-related offences. The parties are agreed that, in all of the circumstances of this case, the accused must be sentenced to a substantial penitentiary term of imprisonment, and made the subject of a number of ancillary sentencing orders. However, they disagree on the precise length of the required period of imprisonment. The Crown contends that the accused should receive a global sentence of between eight and ten years imprisonment. Defence counsel contends that the accused should receive a global sentence of between six and seven years imprisonment. The parties agree that, regardless of the precise length of the global sentence imposed, that sentence should be reduced by the credit fairly awarded to the accused for the pre-sentence custody he has already served.

B. The Facts of the Offences

1. Introduction – The Firearm and Drug Offences

7In my pre-trial Ruling in this case, I outlined most of the relevant factual circumstances, concerning the offences committed by the accused based upon the evidence adduced on the pre-trial motion. See R. v. St. Clair, 2018 ONSC 5173, at paras. 12-44. The evidence heard by the jury was largely consistent with the evidence on the pre-trial motion. In any event, for purposes of sentencing, I find that the facts of the various offences are, essentially, as follows.

2. The Near-Collision with the Tow Truck

8Just moments before 1:25 a.m. on August 9, 2017, Mr. Greg Cochrane, a 53-year-old tow truck operator, was driving his tow truck eastbound on Evans Avenue, in the right-hand lane, approaching Brown’s Line in the City of Toronto. At that point, Mr. Cochrane saw a black Acura MDX come “out of nowhere,” from the parking lot of a townhouse complex on his right, and quickly turn eastbound onto Evans Avenue. The accused was driving this vehicle and was its sole occupant. In making this turn, the Acura MDX almost collided with the tow truck, and Mr. Cochrane was required to take immediately evasive action to swerve out of the way to avoid a collision.

9Mr. Cochrane then watched as the Acura MDX raced toward the intersection of Evans Avenue and Brown’s Line, and then made a quick right turn into the Petro-Canada gas station at that intersection. In racing into this right turn, the Acura MDX was described by Mr. Cochrane as “bouncing all over the place,” with the vehicle going up into the air and onto just “two wheels.”

10Mr. Cochrane followed the accused and parked his tow truck on the road near the entrance to the gas station. He was intending to scream at the accused about what had just happened. He did not get a chance to do so, however, because as soon as the accused parked his Acura MDX in the gas station parking lot, he exited his vehicle and went running and “screaming” at a group of four or five young men who were in the adjoining strip-mall plaza parking lot.

3. The Confrontation in the Parking Lot

11At approximately at 1:25 a.m. on August 9, 2017, Det. Cst. Lee and Cst. Bhandari of the Toronto Police Service were on uniformed general patrol in a marked police cruiser, driving westbound on Evans Avenue approaching Brown’s Line. Det. Cst. Lee was driving the vehicle.

12At that point, the officers’ attention was drawn to the tow truck parked in the live lane of traffic near the entrance to the Petro-Canada gas station. At the same time, they also saw a “heated dispute” taking place between the accused and the group of young men in the adjoining strip-mall parking lot. The accused was “primarily the aggressor” in this confrontation. The group of males was moving slowing toward the accused. The accused was right in front of them, yelling at them. The accused appeared to be angry, and he was throwing his hands up into the air. He was standing his ground against the group of men. Both Det. Cst. Lee and Cst. Bhandari, who are experienced police officers, thought that it was “very rare” or “very unusual” to see one man standing up in a dispute against a group of four or five other males. The body language of all of the males was highly confrontational, and Det. Cst. Lee thought that there was going to be a fight.

13Det. Cst. Lee decided to pull the police car into the Petro-Canada gas station so that their visible presence might prevent the pending fight. This proved to be effective as, when the marked police cruiser pulled into the entrance of the gas station, the accused broke away from the group and returned to his vehicle. The group of young males also seemed to disperse, speed-walking away from the police cruiser and, ultimately, heading westbound on Evan’s Avenue.

4. The Actions of the Accused at his Motor Vehicle

14Det. Cst. Lee observed that when the accused arrived at the driver’s side of his black Acura MDX vehicle, the accused opened the driver’s door of the vehicle and then appeared to look down towards his waist area and take something out from his waistband. However, the accused had his back towards the police car, so Det. Cst. Lee could not see exactly what the accused was doing with his hands. The accused then leaned into his vehicle, on the driver’s side, but towards the front passenger side. This whole movement was “very quick” and took just a few seconds.

15I am satisfied beyond a reasonable doubt, and find as a fact, that what the accused was doing at this point, was returning his fully-loaded, semi-automatic handgun to its secret compartment on the passenger side of the center console of the vehicle. In his confrontation with the four of five young men, the accused had this handgun in the waistband of his pants. Its comforting presence is what provided the accused with the courage to firmly stand his ground in the angry parking lot confrontation with the group of four or five young men. When the police arrived, however, the accused quickly returned to his vehicle, pulled the handgun from the waistband of his pants, and returned it to its after-market storage compartment in his vehicle to try to avoid its discovery by the police. In drawing these factual conclusions, I observe that they are fully supported by the evidence adduced at trial and entirely consistent with the verdicts reached by the jury. See R. v. Ferguson, 2008 SCC 6, at paras. 16-18. R. v. Roncaioli, 2011 ONCA 378, at paras. 58-59; R. v. Nelson, 2014 ONCA 853, at para. 56.

16At this point in time, Mr. Cochrane began telling the two police officers the details of the near-accident that occurred earlier between his tow truck and the accused’s vehicle. Mr. Cochrane suggested to the officers that they should “go get him [the accused].” During this conversation, Det. Cst. Lee noticed that the accused had entered his vehicle and was sitting in the driver’s seat.

17As of August 9, 2017, the accused was the registered lessee of this black, four-door, 2007 Acura MDX Sport Utility Vehicle, and had been the registered lessee of this vehicle for approximately the preceding ten months.

5. The Arrest of the Accused for Unlawful Possession of Marihuana

18Det. Cst. Lee then got out of the police car and went to see if the accused was okay. Cst. Bhandari remained in the police car talking to Mr. Cochrane.

19When Det. Cst. Lee approached the Acura MDX, the accused was alone in his vehicle and there was no one else in the general vicinity. As the officer approached the driver’s side of the Acura MDX, the accused got out of his vehicle and approached the officer. When the officer asked him if he was okay, the accused started yelling apologies to the tow truck driver for his earlier dangerous driving maneuvers.

20At this point, Det. Cst. Lee detected a strong odour of fresh marihuana emanating from the accused and/or his vehicle. Further, when the officer looked inside the Acura MDX, through the open driver’s window, he saw some marihuana flakes and residue on the center console of the vehicle, and a silver marihuana grinder on the driver’s seat. In addition, Det. Cst. Lee noticed that the accused had a “Blackwoods cigar package” sticking out of his right front pants pocket. As Det. Cst. Lee explained, such cigars are often used in the smoking of marihuana. In the same pocket, the officer noticed a circular object that he believed to be another marihuana grinder. At this point, at approximately 1:26 a.m., Det. Cst. Lee formed the opinion that the accused was unlawfully in possession of marihuana and arrested him.

21After the accused was placed under arrest, he advised Det. Cst. Lee that he had a medicinal marihuana card. The accused produced a plastic, credit card-sized, green and white coloured, card from “MedReleaf.” After examining the card, Det. Cst. Lee concluded that it was a “fake,” and he continued with his arrest of the accused for unlawfully possessing marihuana.

6. The Results of the Pat-Down Search

22When Det. Cst. Lee conducted a “pat-down” search of the accused incident to his arrest, Det. Cst. Lee found the following in the accused’s right front pants pocket: (1) a clear plastic bag of fresh marihuana; (2) a silver marihuana grinder (with a marihuana leaf embossed on top) containing some loose marihuana inside; and (3) the Blackwood’s cigar package. Once this search was completed, the accused was handcuffed and placed in the back seat of the police vehicle.

7. The Search of the Acura MDX – Finding the Loaded Firearm

23The two police officers then collectively decided to search the Acura MDX vehicle, incident to the arrest of Mr. St. Clair, for further evidence of unlawful marihuana possession. They believed that there might well be further marihuana inside the vehicle. It was Cst. Bhandari who conducted this search, commencing at approximately 1:33 a.m., when he opened the front passenger door of accused’s vehicle.

24In his testimony, Cst. Bhandari described how his line of sight was “immediately drawn” to an “after-market compartment” located on the side of the center console in the foot well area on the passenger side of the Acura MDX. This compartment had a sliding plastic cover that was a different texture of material and different colour tone than the console. It appeared to be “out-of-place” in the vehicle.

25When he slid the top of this compartment back, Cst. Bhandari saw what appeared to be the “receiver” portion of a handgun (i.e. the pistol grip portion of the firearm), protruding from the end of a black athletic tube-style sock. When Cst. Bhandari pulled this item out of this compartment and removed the sock, he uncovered a nine-millimeter Ruger model P95DC semi-automatic handgun. As the handgun had some “weight” to it, Cst. Bhandari believed that it was loaded with ammunition. When Cst. Bhandari released the over-capacity magazine from the handgun, a bullet fell out of it. This was a nine-millimeter “Windriver” center-fire bullet. When the officer slid back the “slide action” of the handgun, another bullet with the same markings was ejected from the ejection port. This showed that the firearm was operable and had been made “ready” to fire. The 14 bullets that the officer found in the magazine were the same as the other two bullets from the handgun.

26This firearm, its over-capacity magazine, and its ammunition were seized by Cst. Bhandari. The accused was again placed under arrest by Det. Cst. Lee, this time for unlawfully possessing a firearm. He was then transported to the 22 Division station.

27At trial, the parties agreed that: (1) the handgun found in the accused’s motor vehicle is a fully functioning “prohibited firearm;” (2) the detachable box cartridge magazine found within the firearm, which was capable of holding 15 cartridges of nine-millimeter Luger calibre center-fire ammunition, is a “prohibited device;” and (3) on August 9, 2017, the accused was not the holder of a registration certificate, or a firearms acquisition certificate, or a license that would have permitted him to lawfully possess any of these items.

8. The Results of the Strip Search

28After the accused was booked into the station, the acting officer-in-charge of the 22 Division station authorized a “level three” search – also known as a “strip search” – of the accused. This search commencing at 2:25 a.m., and was conducted in a private room by the two investigating police officers. During this search, it quickly became apparent that the accused had a black plastic bag between his buttocks and, despite repeated warnings from the officers to keep his hands away from that area, the accused repeatedly reached around behind his body in apparent attempts to insert the plastic bag into his rectum. Given the continued violent physical resistance of the accused to prevent the police from recovering this plastic bag, the officers used force to distract him and bring him under their physical control. They were, ultimately, able to seize the black plastic bag from between his buttocks.

29As to the substances found inside this black plastic bag, at trial the parties agreed that: (1) the substances found inside the black plastic bag were determined to be 13.64 grams of crack cocaine and 9.44 grams of powder cocaine; (2) if the crack cocaine was distributed as pre-packaged $10-$20 increments, the 13.64 grams of crack cocaine would amount to 136 doses or pieces of crack cocaine that would have a total street value of between approximately $1,400 and $2,728; (3) if the powder cocaine was sold at the gram level, the 9.44 grams of powder cocaine would have a street value of between approximately $755 and $944; and (4) given the quantities of the crack cocaine and powder cocaine, the packaging, and where it was found, the accused was in possession of the crack cocaine and the powder cocaine for the purposes of trafficking.

9. The Breach of Weapons Prohibition Order Offences

30As I have already indicated, after the jury reached its verdict, finding the accused guilty of the various firearm and drug-related offences, the accused re-elected to be tried by a judge alone in relation to two further alleged offences, namely, two counts of being in possession of a firearm in contravention of an order, made under s. 109(2) of the Criminal Code, prohibiting the accused from the possession of such firearms.

31The two weapons prohibition orders that were allegedly contravened were: (1) an order made on July 19, 2005, prohibiting the accused from, amongst other things, the possession of any firearm for life; and (2) an order made on February 7, 2012, similarly prohibiting the accused from, amongst other things, the possession of any firearm for life.

32The official court documentation that was provided in support of these charges clearly established that these two lifetime prohibition orders had been made, and that the accused had knowingly breached them by his possession of the loaded firearm on August 9, 2017. Defence counsel for the accused did not suggest otherwise.

C. The Personal Circumstances of the Accused

33The accused is now 38 years old. He is a Canadian citizen. He came to Canada with his mother in 1988, when he was eight years old. He has a grade 11 education but, since his arrest and imprisonment on these charges, the accused has been working towards the completion of his grade 12 high school equivalency diploma.

34The accused continues to enjoy the full support of his mother, who is a hospital worker, and who lives nearby the accused and his girlfriend. While his mother remains supportive of her son, she candidly acknowledges that he is a grown man and is responsible for making his own decisions about his life.

35At the time of the offences in August of 2017, the accused was working in the construction industry. He has been a member of the construction labourer’s union for some 11 years, and he has periodically worked in this industry when called upon, and when available to take on such work. Apparently, this union provides the accused with good, paying, construction work when it is available. This work has not, however, always been available to the accused consistently on a full-time basis.

36The accused has two children with his current girlfriend. These children are four and two years of age. His current girlfriend works on a full-time basis and the accused helpfully contributes financially (and emotionally) to the support of their two young children. The accused also has a much older child, who is now 18 years of age, and who has just started university.

37Unfortunately, the accused has a long and serious criminal record. Over the course of more than two decades, the accused has committed some 16 criminal offences, not counting the eight additional offences of which he now stands convicted. The accused has been previously convicted of crimes of violence, and a number of crimes involving firearms and ammunition. Orders prohibiting him from the possession of weapons have been ignored. More particularly, the accused has the following criminal record:

• On May 30, 1997, the accused was convicted, in Youth Court, of theft under $5,000 and robbery, and sentenced to a 12-month term of probation.
• On July 10, 1998, the accused was convicted, in Youth Court, of failing to comply with a recognizance and, after serving 14 days in pre-sentence custody, sentenced to one day in secure custody.
• On September 14, 1999, the accused was convicted of possession of a Schedule I controlled substance and, after serving two months in pre-sentence custody, sentenced to one day in jail and a 12-month term of probation.
• On January 20, 2000, the accused was convicted of assault and given a suspended sentence and an 18-month term of probation.
• On March 27, 2001, the accused was convicted of mischief under $5,000, failing to comply with a probation order, assault and uttering threats and, after serving four months in pre-sentence custody, given a suspended sentence and a two-year term of probation.
• On May 29, 2002, the accused was convicted of assault with a weapon and, after serving nearly six months in pre-sentence custody, was sentenced to one day in jail and a six-month term of probation. The accused was also prohibited from the possession of any weapons for a period of ten years.
• On July 19, 2005, the accused was convicted of one count of possession of a replica firearm in breach of a court order prohibiting such possession, and one count of possession of ammunition contrary to a court order prohibiting such possession and, after serving 221 days in pre-sentence custody, was sentenced to one day imprisonment. The accused was also prohibited from the possession of any weapons for the rest of his life.
• On February 7, 2012, the accused was convicted of one count of unlawful possession of a firearm, and one count of possession of a firearm contrary to a court order prohibiting such possession and, after serving 16 months in pre-sentence custody, was sentenced to a total of nine-months imprisonment, and a 12-month term of probation. This is the longest previous effective sentence imposed on the accused. The accused was also prohibited from the possession of any weapons for the rest of his life.
• On November 9, 2015, the accused was convicted of dangerous operation of a motor vehicle and, after serving four months in pre-sentence custody, given a suspended sentence.
• On April 11, 2018, the accused was convicted of an assault on a peace officer (a jail guard) and was sentenced to 30 days imprisonment.

D. The Governing General Sentencing Principles

38According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing 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 objectives, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

39According to s. 718.1 of the Criminal Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

40Section 718.2 of the Criminal Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

E. The Aggravating and Mitigating Circumstances

41The aggravating circumstances of this case include all of the following considerations:

• The accused is not a youthful first offender, but rather is a mature 38-year-old man with a lengthy criminal record, which displays convictions for crimes of violence and prior firearm-related offences.
• The semi-automatic firearm in the possession of the accused was fully loaded and ready to fire, in that the magazine was full of bullets and there was an additional bullet already loaded into the firing chamber.
• The magazine of the firearm in the possession of the accused was itself a prohibited device, in that it was an over-capacity magazine that held no less than 15 bullets. This over-capacity magazine significantly increased the potential public danger presented by the accused’s possession of the handgun.
• The accused possessed the loaded semi-automatic firearm while driving on public streets in the City of Toronto in a motor vehicle, thereby creating a very dangerous situation for members of the public. That level of public danger was significantly increased when the accused engaged in an angry confrontation with a group of four or five young men while personally armed with this loaded semi-automatic handgun in the waistband of his pants.
• The accused stored his fully-loaded semi-automatic firearm in an after-market compartment in his vehicle that permitted him to conceal the firearm and yet still be able to quickly gain access to the firearm whenever necessary.
• The accused offered no evidence or explanation as to why he had this fully loaded semi-automatic firearm in his possession. I am satisfied beyond a reasonable doubt and find as a fact, however, that the accused possessed this firearm in connection with his cocaine-trafficking. Again, in drawing this factual conclusion, I note that it is fully supported by the evidence adduced at trial and entirely consistent with the verdicts reached by the jury.

42The mitigating circumstances of this case include all of the following considerations:

• There is no evidence that the accused ever actually shot his loaded firearm.
• The firearm found in the possession of the accused has not been traced back to the commission of any other earlier criminal offences.
• The accused was not subject to any bail or probation order at the time of the commission of these offences.
• The manner in which the accused stored his loaded firearm in the after-compartment of his motor vehicle somewhat reduced its potential danger to the public, as this was not a location where it was apt to be easily accidentally discovered by anyone else who might have access to the vehicle.
• The accused continues to have the emotional support of his mother, his girlfriend and his children, and has had a productive work history, at least periodically. Accordingly, the accused does have some prospects for rehabilitation, although realistically, these prospects must be viewed with some skepticism.
• There is a gap of more than 6½ years between the accused’s convictions on July 19, 2005 and his convictions on February 7, 2012. This shows that the accused has, at least once, remained conviction-free for a significant period of time.
• The longest previous sentence imposed on the accused was the sentence imposed on February 7, 2012, when he was convicted of firearm-related offences and, after serving 16 months in pre-sentence custody, received a further sentence of nine-months imprisonment. In other words, while the accused has received an effective penitentiary-length period of imprisonment, the accused has never before actually been to the penitentiary.

F. The Appropriate Global Sentence (Before Any Credit for Pre-Sentence Custody)

1. The Firearm-Related Offences

43In all of the circumstances of this case, before taking into account any credit to which the accused may be entitled for his pre-sentence custody, in my view the firearm-related offences committed by the accused requires the imposition of at least a five-year penitentiary term of imprisonment.

44I appreciate that s. 95(2)(a)(ii) of the Criminal Code, which prescribes a mandatory minimum punishment of five years imprisonment for a “second or subsequent” such firearm offence, has been conclusively determined to be unconstitutional, as being in violation of s. 12 of the Canadian Charter of Rights and Freedoms and not saved as a reasonable “limit” within the meaning of s. 1 of the Charter. See R. v. Charles, 2013 ONCA 681, at paras. 10-12, 71-75, 107, affirmed, R. v. Nur, 2015 SCC 15, at paras. 2-5, 34-36, 99-106.

45In my view, however, the imposition of at least a five-year term of imprisonment, for the firearm-related offences committed by the accused, is required in this case, not because of any governing mandatory minimum sentence, but rather only because such an exemplary sentence is required in all of the individual circumstances of this case, and because it is supported by the applicable judicial authorities. Some of the applicable authorities are collected in R. v. Ellis, 2013 ONSC 3092, at paras. 25-29, affirmed, 2016 ONCA 598, at paras. 74-80. See also R. v. Slack, 2015 ONCA 94, at paras. 21-28.

46Of course, in R. v. Charles, the very case in which the Court of Appeal for Ontario and the Supreme Court of Canada struck down the mandatory minimum five-year sentence of imprisonment in s. 95(2)(a)(ii) of the Code as unconstitutional, both the Court of Appeal, at paras. 17-24, 53-59, and 108, and the Supreme Court of Canada, at paras. 27-36, 120, and 186-188, concluded that, in the circumstances of that case, which bear considerable similarity to the circumstances of the present case, the imposition of the five-year sentence of imprisonment was held to be fit and appropriate. Indeed, the accused did not suggest otherwise.

47The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug-trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. Some of the authorities in support of this position are collected in R. v. Mark, 2018 ONSC 447, at para. 24.

48This is especially true in cases, such as the present one, where the accused has been previously convicted of the same type of firearms offence, and yet has been undeterred by the imposition of a lesser term of imprisonment.

49The firearm-related offences in the present case are, to be sure, no mere “regulatory” matters. Rather, the accused was, once again, engaged in true criminal activity in relation to a firearm. He was in unlawful possession of a fully loaded, semi-automatic Ruger nine-millimeter handgun. This firearm was fitted with an over-capacity magazine that permitted the gun to be loaded with a total of 16 bullets (one in the chamber and 15 in the magazine). His unlawful possession of this loaded firearm, the over-capacity magazine, and the ammunition, amounted to a very serious criminal offence, which created a very substantial public safety risk, and which merits the imposition of at least a five-year term of imprisonment. See R. v. Nur, 2013 ONCA 677, at paras. 4, 6, 51-53, 107-109, 144, 206, affirmed, 2015 SCC 15, at paras. 5, 82, 120; R. v. Smickle, 2014 ONCA 49, at para. 19.

50Accordingly, as I have indicated, before taking into account any credit to which the accused may be entitled for his pre-sentence custody, the proper application of the governing principles of sentencing, in all of the circumstances of this case, must result in the imposition of at least a five-year penitentiary term of imprisonment for the accused in relation to his firearm-related offences. Indeed, but for my concerns over the totality of the sentence of imprisonment that will ultimately be imposed in this case, I would have concluded that an even longer term of penitentiary imprisonment would have been appropriate for the very serious firearm-related offences committed by the accused.

2. The Drug Offences – Possession of Cocaine for the Purpose of Trafficking

51These firearm-related offences were not, however, the only offences committed by the accused. He was also found guilty of being in possession of commercial quantities of both crack cocaine and powder cocaine for the purposes of trafficking. In my view, the accused was clearly engaged in the drug-trafficking trade. There is simply no other reasonable inference that can be drawn from the evidence in the factual circumstances of this case.

52As the courts have repeatedly emphasized, this renders the criminal conduct of the accused significantly more serious, as the combination of loaded, illegal firearms and the sale of illicit, addictive drugs is a very dangerous and toxic mix that requires the imposition of serious penitentiary terms of imprisonment. Again, some of the authorities that support this proposition are collected in R. v. Mark, at paras. 27, 30.

53Accordingly, in my view, the drug offences committed by the accused (i.e. the two counts of possession of cocaine for the purpose of trafficking), must attract the imposition of a consecutive custodial sentence of two years duration. The governing sentencing jurisprudence appropriately recognizes that these types of drug offences are separate, serious offences striking independent legal interests, and must properly be reflected in a significantly increased sentence. See R. v. Houle, 2008 ONCA 287, at para. 4; R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at paras. 8, 15; R. v. Wong, 2012 ONCA 767, at paras. 11, 13; R. v. Crevier, 2015 ONCA 619, at paras. 6-7, 128-130; R. v. Ahmed, 2016 ONCA 831, at paras. 1, 4-5.

3. The Breach of the Weapons Prohibition Order Offences

54At the time of the commission of his firearm-related offences, the accused was subject to two court orders which strictly prohibited him, for the rest of his lifetime, from the possession of any firearms. The accused conducted his drug-trafficking enterprise as if these orders were never made – he simply ignored them.

55In R. v. Ellis, 2013 ONSC 3092, at para. 30, affirmed, 2016 ONCA 598, I noted that the weight of authority strongly suggests that, as a general rule, in such circumstances, a consecutive sentence ought to be imposed for the breach of the weapons prohibition order. I also expressed my own agreement with that principled perspective, and suggested that, in the absence of a consecutive sentence, the accused would effectively receive no greater punishment as a result of his or her clear violation of a previous court order.

56Accordingly, the intentional violation of two unequivocal court orders requires some effective additional sanction, as offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.

57Applying that principled approach in all of the circumstances of this case means that the accused ought to be sentenced to an additional one-year term of imprisonment for his breaches of the earlier weapons prohibition orders. These sentences would have been longer but for the importance of the principle of totality, as reflected in s. 718.2(c) of the Criminal Code.

4. Summary of the Appropriate Global Sentence – Before Credit

58In the result, before taking into account any credit to which the accused may be entitled as a result of his pre-sentence custody, the accused should be sentenced to an effective global penitentiary sentence of eight years imprisonment: five years imprisonment for his various firearm-related offences, two years imprisonment (consecutive) for his two drug-related offences, and one year imprisonment (consecutive) for his breach of the two lifetime weapons prohibition orders.

59In reaching this conclusion, I have sought to take into account all of the circumstances of this case and have tried to keep the principle of totality foremost in my mind.

60The total global sentence of eight years imprisonment is unquestionably a long sentence for the accused – but it is justifiably so. Gun-toting drug dealers, with significant criminal records, who chose to ignore weapons prohibition orders, and who thereby create great danger to members of the public, must realize that they will invariably be subject to such lengthy penitentiary sentences. There is simply no other way for the courts to realistically, effectively and proportionally address, denounce and deter the commission of this type of inherently dangerous crime.

G. Credit for Pre-Sentence Custody

61The accused has been in custody since the date of his arrest on August 9, 2017. Accordingly, he has already spent a total of 472 days in pre-sentence custody. However, the parties are agreed that 20 days of this time period must be deducted from his pre-sentence custody period because that time was spent serving his sentence, imposed April 11, 2018, for his assault on a jail guard. Accordingly, the accused will be given credit for having served a total of 452 days in pre-sentence custody, or nearly 15 months.

62Giving the accused the maximum enhanced credit to which he may be entitled, under the combination of s. 719(3.1) of the Criminal Code and the Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26, of “one and one-half days for each day spent in custody,” this calculation results in a total credit of 678 days, or nearly 22 months and three weeks. Accordingly, the global sentence that would otherwise have been imposed upon the accused will be reduced by this total credit.

H. The Sentence Imposed Upon the Accused

63I have concluded that, having regard to all of the circumstances of the present case, a fit global sentence in this case, would be eight years imprisonment. I have also concluded that, in light of the pre-sentence custody already served by the accused, he should receive a mitigating credit of 22 months and three weeks imprisonment. Once that credit is appropriately deducted, the remaining global sentence is one of six years, one month, and one week. To achieve that global result, I now hereby sentence the accused as follows.

64In relation to the firearm-related offences, outlined in the first four counts of the indictment that was before the jury, the accused is sentenced to three years, one month and one week imprisonment. The 22 months and three weeks of mitigating credit for the time the accused has already served in custody shall be attributed to these four offences, reducing what would otherwise have been five-year terms of imprisonment to three-year, one-month and one-week terms of imprisonment. These sentences, in relation to the first four counts of the indictment, shall all run concurrently.

65In relation to the two convictions for possession of cocaine for the purpose of trafficking, outlined in counts five and six of the indictment that was before the jury, the accused is sentenced to two-year terms of imprisonment on each count. These sentences shall run concurrently to each other, but consecutively to the sentences imposed in relation to the four firearm-related offences.

66In relation to the two offences of breaching the weapons prohibition orders, outlined in counts eight and nine of the longer, original indictment, the accused is sentenced to one-year terms of imprisonment. These sentences shall run concurrently to each other, but consecutively to the sentences imposed in relation to the two drug-related offences.

67This results in the imposition of a total global penitentiary sentence of six years, one month and one week duration. This is effectively the eight-year global sentence of imprisonment that I consider appropriate, after the credit of 22 months and three weeks imprisonment the accused is due as a result of his pre-sentence custody is taken into account.

I. Ancillary Sentencing Orders

68In addition, in my view all of the following ancillary sentencing orders are appropriate in the circumstances of this case. The parties did not suggest otherwise.

69First, pursuant to ss. 109(1)(b) and 109(3) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life.

70Second, as the accused has been found guilty of more than one “secondary designated offence,” pursuant to s. 487.051(3) of the Criminal Code, I order the taking of bodily substances from the accused for forensic DNA analysis. I am satisfied that, having regard to all of the circumstances of this case, including the gravity of the offences committed by the accused, the criminal record possessed by the accused, and the minimal impact the order will have on the privacy and security interests of the accused, that the order should be made.

71Third, pursuant to s. 491(1) of the Criminal Code, I order that the firearm, over-capacity magazine and ammunition that has been seized and detained in this case be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General.

72Fourth, pursuant to s. 16(1)(a) of the Controlled Drugs and Substances Act, I order that the controlled substances (i.e. the powder and crack cocaine) seized and detained in this case be forfeited to Her Majesty in right of Canada and thereafter disposed of as directed by the Minister of Health.

73Fifth, I order that the accused pay a victim surcharge in the total amount of $1,600 pursuant to s. 737(2)(b)(ii) of the Criminal Code (i.e. $200 for each of the eight offences for which he has been convicted). See R. v. Tinker, 2017 ONCA 552.

J. Conclusion

74In summary, the accused is now sentenced to a global penitentiary sentence of six years, one month and one week duration. On the first four counts of the indictment that was before the jury (the firearm-related offences), the accused is sentenced to imprisonment for three years, one month and one week. These sentences shall run concurrently. On the last two counts of the indictment that was before the jury (the drug-related offences), the accused is sentenced to imprisonment for two years. These sentences shall run concurrently to each other, but consecutively to the sentences imposed in relation to the four firearm-related offences. As for the two offences of breaching the weapons prohibition orders, in counts eight and nine of the original indictment, the accused is sentenced to imprisonment for one year. These sentences shall run concurrently to each other, but consecutively to the sentences imposed on the two drug-related offences. The accused is also subject to all of the aforementioned ancillary sentencing orders.

Kenneth L. Campbell J.

Released: November 23, 2018

COURT FILE NO.: CR-18-5-48 DATE: 20181123 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - STASKY ST. CLAIR REASONS FOR SENTENCE K.L. Campbell J. Released: November 23, 2018