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COURT FILE NO.: CR-18-30000129 DATE: 20200122 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – JAH-KIYO DESMOND-ROBINSON

Counsel: Margo MacKinnon, for the Crown Taufiq Hashmani, for Mr. Desmond-Robinson

HEARD: December 13, 2019

Overview

1This is a hard case. Mr. Desmond-Robinson was found to be in possession of a sawed-off automatic rifle together with ammunition. He is a young black man from a disadvantaged background. He has no criminal record and is full of rehabilitative potential. At the same time, possession of such a gun is simply intolerable in Toronto, and must be denounced and deterred in the strongest possible terms.

Circumstances of the Offence

2Following a brief and focused trial I found Jah-Kiyo Desmond-Robinson guilty of being in possession of a prohibited firearm with readily accessible ammunition (contrary to s. 95(1) of the Criminal Code), and cocaine and marijuana (contrary to s. 4(1) of the Controlled Drugs and Substances Act (CDSA)). I also found him guilty of being in possession of the same firearm knowing that he was not the holder of a license to possess it, contrary to s. 92(1) of the Criminal Code.

3All of the items were found hidden in his bedroom during a search conducted by police on October 12, 2016, pursuant to a search warrant which I found valid (see R. v. Desmond-Robinson, 2019 ONSC 308). Following my ruling on the search, Mr. Desmond-Robinson admitted that he knew about the cocaine and marijuana and the ammunition, but denied that he knew about the firearm or the backpack it was found in. Ultimately, I was satisfied beyond a reasonable doubt that he did know about the firearm and the ammunition, and that he was in constructive possession of both things (I explain why in my reasons for judgment: R. v. Desmond-Robinson, 2019 ONSC 451).

4The firearm was a Remington Model 742 Woodsmaster semi-automatic rifle with the stock cut off. The barrel was 310 mm in length (i.e. less than the 457 mm length set out in the definition of prohibited firearm). The serial number of the firearm had been removed. There was no issue that it was a "prohibited firearm" as defined in s. 84 of the Criminal Code. It was found, together with part of the stock and a pin that could be used to attach the partial stock to the firearm, inside a Kodiak backpack. The backpack was under a pile of clothing at the bottom of the closet inside Mr. Desmond-Robinson's bedroom on the third floor of 145 Glendower Circuit. The backpack also contained a piece of plastic twisted together containing ammunition for a handgun (it could not be fired in the seized firearm).

5Ammunition for the Remington firearm, namely a box of 30-06 SPRG cartridges, was found in the right front pocket of a "Hollister" brand jacket hanging in the same closet where the firearm was found. There was no issue that this was "ammunition" within the definition in s. 84 of the Criminal Code, and that the prohibited firearm functioned as a semi-automatic rifle and could fire these cartridges.

6A total of 9.9 grams (g) of mixed cocaine and benzocaine was found inside a black nexus cell phone box. That box was sitting inside a red "Beats by Dre" box, which in turn was sitting on the top shelf of the shelving unit located along the wall between the closet and the entrance to the bedroom. It was separated into 4 discrete packages:

1.8 g in a clear plastic bag
3.3 g in a clear plastic bag
3.5 g in a clear plastic bag
1.3 g in a clear plastic bag

7There were three other clear plastic bags found in the same place, and packaged in the same way, which contained benzocaine only (weighing 0.4 g, 0.7 g and 1.1 g).

8A total of 52.5 grams of marijuana were found inside a clear plastic bag. The bag was inside a Bath and Body Works shopping bag sitting on an open shelf in the headboard above the mattress. It was divided into 4 separate packages:

6.1 g in yellow plastic
18.4 g in a clear cylinder (4.7 g of this was sent for testing)
18.3 g in a clear cylinder (4.8 g of this was sent for testing)
9.7 g in yellow plastic

9Mr. Desmond-Robinson admitted at the outset of the trial that the drugs were his. He testified that he found the cocaine after a party at his home. No one came to claim it. He knew it was valuable, so kept it thinking that he could sell it, but claimed he was not having any luck doing so.

10Police also found two digital scales. The presence of two digital scales in close proximity to the drugs tends to suggest Mr. Desmond-Robinson was trafficking in drugs, especially given how the drugs were packaged, but I do not need to decide this. Mr. Desmond-Robinson was only charged with simple possession. In addition, for the reasons explained below, I find no link between the firearm and the drugs.

11The police found an imitation firearm inside a shoe box on the bottom shelf of the armoire blocking the entrance to the closet.

12Two boxes of 9 mm handgun cartridges were found inside a beer store bag which in turn was inside a blue paper "Zara" bag sitting on the shelving unit running between the closet and the entrance to the bedroom.

13Normally the fact that a gun is found together with drugs possessed for the purpose of trafficking gives rise to the inference that the gun was being used to further drug dealing. (There are many cases from this court and the Court of Appeal which talk about the "toxic" combination of drugs and guns, especially cocaine and handguns – see for example R. v. Simon, 2010 ONCA 754, at para.1.) In the particular circumstances of this case, I do not draw this inference. The evidence at the trial was that the home was kept open, and people from the community were permitted to come and go as they pleased. Mr. Desmond-Robinson testified that he found the box of 30-06 SPRG cartridges sometime in the summer of 2016. He asked his friends about it, but no one admitted owning it, or putting it in the pocket of Mr. Desmond-Robinson's coat in his closet. Mr. Desmond-Robinson explained that he left the ammunition hoping someone would come back and take it. He did not throw it out because he did not want the person who left the ammunition to "come back for them and get mad at me." I rejected Mr. Desmond-Robinson's evidence that he did not know about the firearm. I concluded that he knew about both the Remington firearm and the box of 30-06 SPRG cartridges, and that he controlled both things while they were stored in his bedroom. But I do not conclude that they belonged to him, or that he was using the firearm to further his drug-dealing endeavor. Or that he ever used the firearm. I find he was storing the firearm and the ammunition.

Circumstances of the Offender

14Mr. Desmond-Robinson testified at the trial. A considerable amount of additional information about Mr. Desmond-Robinson was put before me during the sentencing hearing, including: a pre-sentence report (PSR); a confidential psychological assessment of cognitive abilities; and a "social history" report by Camisha Sibblis. The social history report aimed to provide "a review of Mr. Desmond-Robinson's social history and trajectory" and included "an analysis of the impact of culture and race on Mr. Desmond-Robinson's experiences." In addition, the following people provided letters of support:

Helen Zakaria (Mr. Desmond-Robinson's girlfriend and the mother of his new son);
Tammy Reddick-Shaw (his god-mother and residential surety since his release on bail for these charges, who wrote about how much he has matured and how hard he has worked while on bail);
Serrina-Lee Desmond-Robinson (his younger sister and only full biological sibling who wrote about how much she missed her brother because he was the one who cooked and helped care for the household);
Chante Robinson (older sister who wrote about his particular ability to communicate and help others);
Laura Desmond (aunt who taught him to cook and told him about his Aboriginal roots in Nova Scotia; she also explained that Mr. Desmond-Robinson's mother had issues with alcohol and depression);
Granville Sandy (a tax preparer who volunteers in the neighbourhood noted Mr. Desmond-Robinson "was a homebody [who] helped his mother nurture his siblings");
Michelle Leslie (who runs a food bank on Thursdays in the neighbourhood noted that Mr. Desmond-Robinson would help unload and deliver the food to seniors);
Jacquelina Richards (a neighbor and family friend who commented that Mr. Desmond-Robinson "has always been a quiet and mild-mannered youth, and to my knowledge he has never been in any type of trouble").

15Mr. Desmond-Robinson was 19 at the time of the search and arrest in October of 2016. He was 21 years old at the time of the trial, and 22 at the sentencing hearing. In October of 2016 he was living with his mother, Sabrina Desmond, and his 8-year-old younger brother Kaylin in a townhouse at 145 Glendower Circuit in Toronto. His 15-16 year old sister Serrina also lived in the home on weekends, but spent the weekdays living with her father.

16Mr. Desmond-Robinson was raised in Scarborough. He believes he has Aboriginal heritage on his mother's side (as noted, he learned about this from his aunt Laura Desmond who wrote the reference letter described above). His parents split up when he was four years old. His father remained somewhat active in his life, but stopped visiting after Mr. Desmond-Robinson turned 14. He has one full sister (Serena), and a number of half siblings, and a younger adopted brother (Kaylin). He had a close relationship with his siblings growing up but drifted from them as they left the home. His relationship with his father deteriorated to the point where it is almost non-existent at present. His father tried to get Mr. Desmond-Robinson a job, but Mr. Desmond-Robinson could not do it because it conflicted with the conditions of his bail, and his father has had no further contact with him since.

17Mr. Desmond-Robinson was raised mainly by his mother, who has issues with alcohol. This led to what the social history report writer described as "co-dependency" on Mr. Desmond-Robinson's part. He became preoccupied with the needs of his mother, and cooking for her and taking care of her, and became desensitized to his own needs, feelings and thoughts, and the need for boundaries.

18Mr. Desmond-Robinson grew up in the Glendower neighbourhood in social housing. Defence counsel described it as a poor neighbourhood with a reputation for drug use, drug trafficking, addiction issues, gang activity and gun violence. In this environment Mr. Desmond-Robinson had experiences with the police beginning at a young age. He saw residents involved in altercations with police, sometimes physical ones resulting in injuries to his neighbours. This led to a breakdown in trust of police, and a fear of experiencing a similar interaction with police himself.

19School was also a negative experience. While Mr. Desmond-Robinson had some good teachers who tried to help him, he had some who were negative and made hurtful and harmful comments to him - his grade three teacher told him he would end up in the newspaper because of something bad he would do! At one point the school asked his mother for permission for Mr. Desmond-Robinson to be considered for an Individual Education Plan (IEP), but his mother, mistrustful of the system, declined. He ended up being suspended because of fights, often because he was sticking up for someone, including his sister. This prevented him from being on the basketball team. Ultimately his commitment to his education broke down and he did not finish high school. Defence counsel notes the Mr. Desmond-Robinson's truancy also increased when his older brother, with whom he was very close, moved away to go to college.

20At school, Mr. Desmond-Robinson was labelled as being part of a notorious gang in his neighbourhood. This reputation followed him back into his neighbourhood.

21Mr. Desmond-Robinson experienced trauma growing up. He witnessed spousal abuse in his home when he was young. He also witnessed violence in the community: He saw someone get shot in the head. It turned out that the bullet just grazed that person's head, but it did not look like that to Mr. Desmond-Robinson at the time. He experienced the police coming into the neighbourhood with "big guns" on a regular basis. Even happy occasions like the annual community barbeque were marred by violence and eventually cancelled. As a young child he was instructed to play inside. As he matured, in addition to the violence he saw others subjected to, he was targeted and held at knife point. Three people he knew were killed in a relatively short space of time. A very close friend of his - someone he viewed as a younger brother - was stabbed and killed at the Scarborough town centre, close to his home. He watched images of his friend die which were posted on social media. This happened just before the search was conducted in his home, giving rise to the charges in this case, and had a profound effect on him. The constant threat of harm meant that he was always on high alert. He became fearful and reluctant to go outside.

22Mr. Desmond-Robinson worked during the summers. According to his counsel"nothing was too big for him." Mr. Desmond-Robinson spent the summer of 2016 working in a factory in Stouffville, but stopped working at the end of summer to go back to school and get his GED.

23Since being on bail Mr. Desmond-Robinson has made persistent efforts to upgrade his education, and recently wrote the GED. While he did not pass, he worked hard to achieve this goal, and I hope he does not give up. In addition to working on his GED, he has been taking courses through the Miziwe Biik Employment and Training Program, and has completed the Food Handlers course, and a First Aid course. Mr. Desmond-Robinson sees his future in small business, like running a food truck.

24Mr. Desmond-Robinson has been with his girlfriend for four years. They recently had a child together (a son), who was born in August. Mr. Desmond-Robinson wants to focus on his family and work toward supporting them.

Range of Sentence for Possession of Prohibited or Restricted Firearm with Ammunition for the Purpose

25Section 95 of the Criminal Code provides that every person who possesses a prohibited or restricted firearm, either loaded, or together with readily accessible ammunition that is capable of being discharged in the firearm, without the correct authorization and registration, is guilty of a hybrid offence. Where the offence is proceeded with by indictment, it is punishable by a maximum term of imprisonment not exceeding ten years. In the case of a first offence, there is a minimum term of imprisonment of three years. In the case of a second or subsequent offence, there is a minimum term of imprisonment of five years.

26This offence captures a broad spectrum of conduct, ranging from technical breaches more akin to regulatory offences posing little risk to the public, to truly criminal conduct placing the public at great risk of significant and immediate harm. In R. v. Nur, 2013 ONCA 677, aff'd 2015 SCC 15, at para. 82, Chief Justice McLachlan explicitly endorsed the Court of Appeal's description of the offence:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a license and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that license. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence. (from para.51 of the Court of Appeal decision)

27Both the Court of Appeal and the Supreme Court of Canada in Nur concluded that the three-year mandatory minimum punishment was an unconstitutional violation of s. 12 of the Charter as it would amount to cruel and unusual punishment if applied at the "regulatory" end of the spectrum.

28However, every court that heard Nur affirmed that conduct at the criminal end of the spectrum will attract exemplary sentences that emphasize deterrence and denunciation. In the Court of Appeal decision, at para. 206, Justice Doherty explained that his conclusion that the mandatory minimums were unconstitutional did not

[H]ave any significant impact on the determination of the appropriate sentence for those s.95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

29Chief Justice McLachlan endorsed this conclusion in the Supreme Court decision, noting, at para. 120, that "It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles."

30Since Nur was decided, the Court of Appeal has continued to affirm that those who commit s. 95 offences falling at the "truly criminal conduct" end of the spectrum can expect exemplary sentences emphasizing deterrence and denunciation. In the trial decision in R. v. Nur, 2011 ONSC 4874, Justice Code noted that the range of sentence for a first offence of possession of a loaded handgun simpliciter (without additional convictions such as for drug trafficking) prior to the enactment of the mandatory minimum "tended to be between two years less a day and three years imprisonment" with much longer sentences for recidivists: R. v. Nur, 2011 ONSC 4874, at para. 42. In R. v. Graham, 2018 ONSC 6817, at para. 37, Justice Code recently confirmed this range for the "well-situated first offender" relying in particular on R. v. Smickle, 2014 ONCA 49. In Smickle, originally heard together with Nur, the Court of Appeal ultimately concluded that a sentence of two years less one day would have been the appropriate sentence at trial. Mr. Smickle was found in possession of a loaded firearm while in his cousin's apartment. He was 27 years old, had no criminal record, and there were substantial mitigating circumstances.

31Defence counsel in this case points me to more recent cases in this court and the Ontario Court of Justice where sentences of two years, or two years less a day, have been imposed in s. 95 cases: R. v. Molin, 2015 ONSC 7045, O.J. No. 6074; R. v. James and Dawson, 2017 ONSC 473, O.J. No. 273; R. v. Reyes, 2018 ONCJ 185, O.J. No. 1560; R. v. Roy, 2018 ONSC 3855, O.J. No. 3427. Defence counsel also provided me with examples of cases where a conditional sentence has been imposed: R. v. Nuttley, 2013 ONCJ 727, O.J. No. 6040; R. v. Hassan, 2017 ONSC 4570, [2017] O.J. No. 3906 (SC); R. v. Dalton, 2018 ONSC 544, O.J. No. 5810; R. v. Roeske, 2018 ONCJ 874, 152 W.C.B. (2d) 697. While it is well-established that a conditional sentence can provide for general deterrence and denunciation, defence counsel acknowledged during submissions that it provides less denunciation and general deterrence than a sentence of equal length served in custody. For this reason, I view a conditional sentence as outside the range affirmed by the Court of Appeal. This is particularly true in Toronto in late 2019 and early 2020, after a year when the city has been wracked by gun violence.

32In Graham, supra, Justice Code confirmed that the range is between three to five years "for a first s. 95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking." The Court of Appeal has rejected the argument that the defunct mandatory minimum improperly inflated the bottom of the appropriate range, concluding instead that "recent sentences reflect Canadian society's intolerance for gun crime and are in keeping with the direction given by the Supreme Court of Canada:" R. v. Ellis, 2016 ONCA 598, at paras. 77-79. In these kind of cases, the Court of Appeal has consistently upheld sentences in the range identified by Justice Code, even where the offender is young and does not have a criminal record. For example: In R. v. Marshall, 2015 ONCA 692, three-and-one-half years was upheld for a low-level drug dealer who was in possession of a loaded handgun at a place where drug deals were occurring, and the Court of Appeal found that "the potential for violence was high" (para. 48). The accused was 23 years old, had no prior criminal record, and positive rehabilitative prospects, though he pleaded guilty to possession of cocaine for the purposes of trafficking while on bail. In R. Mansingh, 2017 ONCA 68, 40 months was upheld for a low-level drug dealer engaged in trafficking who ran from police, discarding a loaded handgun as he did, in a place where it could easily have been found by a child. The accused was youthful, had no prior criminal record, and relatively positive prospects.

33For those who are repeat offenders in relation to s. 95, the range post-Nur is between six to nine years. In R. v. Slack, 2015 ONCA 94, 125 O.R. (3d) 60, a total sentence of ten years was upheld, consisting of eight years for a repeat breach of s. 95, plus two years consecutive for breach of weapons prohibition orders. See also Graham, at para. 39, and R. v. Hector, 2014 ONSC 1970, per MacDonnell J. in which he considers the sentencing range for s. 95 recidivists post-Nur.

Positions of the Parties

34The Crown takes the position that a total sentence of three years is appropriate, less some credit for harsh conditions of bail. She also asks for a DNA order and a s. 109 weapons prohibition.

35Defence counsel takes the position that a total sentence of two years less a day is appropriate, less 9 months credit for harsh conditions of bail. He asks that it be served in the community, as a conditional sentence. He takes no issue with the ancillary orders requested by the Crown.

Principles of Sentencing

36The principles of sentencing are now largely codified. Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing as follows:

[T]o protect society and to contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanction that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons 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 to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

37Section 718.1 expressly notes that 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."

38Section 718.2 sets out other sentencing principles which also must be taken into consideration:

(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender…[ expressly listing a number of aggravating circumstances]; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

39Section 10 of the CDSA incorporates these principles, and notes that "the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community." The section goes on to explicitly enumerate a number of aggravating circumstances, none of which appear relevant to the drug possession offences in this case.

40As a general rule, sentences for offences arising from the same transaction are generally concurrent, absent specific concerns, such as the breach of a firearms prohibition in addition to a substantive possession charge. On the other hand, where there is no relationship between distinct offences, a sentencing court should generally impose consecutive sentences. The imposition of consecutive sentences engages the totality principle now codified in s. 718.2(c). See also R. v. C.A.M., [1996] 1 S.C.R. 500; R. v. Li, 2009 BCCA 85, 82 W.C.B. (2d) 282.

41When sentencing for multiple offences, especially where the totality principle is engaged, the Court of Appeal has recommended first determining a global sentence, then assigning sentences for each offence, and determining whether they are concurrent or consecutive: R. v. R.B., 2014 ONCA 840, O.J. No. 5625; R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.).

Rule Against Multiple Convictions

42Mr. Desmond-Robinson was found guilty of both s. 95(1) and s. 92(1) of the Criminal Code in relation to the same firearm (I mistakenly noted "convicted" in my reasons for judgment where I should have noted "found guilty").

43The rule against multiple convictions (the "Kienapple" principle) prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same, i.e. where there is both a factual and legal nexus between the offences. In such cases the accused should only be convicted of the most serious offence, and the other offences should be conditionally stayed. See: R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 30 C.C.C. (3d) 35 (S.C.C.).

44The most serious offence in this case is possession of the loaded prohibited handgun contrary to s. 95 of the Criminal Code. Many judges of this court have found that the rule does not preclude an accused from also being convicted of a s. 92 offence, as the latter involves the additional element that the accused knew he did not have the requisite license or registration certificate: R. v Le, 2014 ONSC 4288, at paras. 16-21. This is unquestionably true. But in the circumstances of this case, I believe that the gravamen of both offences is substantially the same. This was a sawed-off automatic rifle: no license or registration was possible. Thus the additional element contained in s. 92 that the accused know he has no license or registration really adds nothing. As a result, I will follow R. v. Lucas, 2010 CarswellOnt 11147, 88 W.C.R. (2d) 385, and conditionally stay the s. 92 charge. I note that this has no practical effect, as everyone agrees that whatever sentence is imposed on the s. 92 offence must be concurrent to the s. 95 offence.

Gladue

45The Supreme Court of Canada breathed life into s. 718(e) of the Criminal Code in R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Wells, [2000] 1 S.C.R. 207, 2000 SCC 10; and R. v. Ipeelee, 2012 SCC 13, 1 S.C.R. 433. The provision attempts to address the serious problem of overrepresentation of Aboriginal people in prison by requiring sentencing judges to consider, in detail, the offender's background, and how it may relate to the commission of the offence, and where appropriate, to adopt a restorative approach to sentencing. It mandates a different approach or methodology to sentencing Aboriginal offenders, but not necessarily a different result.

46In this case, Mr. Desmond-Robinson sought a "Gladue" report, but Aboriginal Legal Services indicated that they could not prepare one because:

First, we are unsure, as is he, about the specific nature of his Indigenous ancestry and second, even if his ancestry was somehow able to be confirmed, we cannot address how being an Indigenous person has affected his life circumstances.

47Defence counsel chose to rely, instead, on the "Social History" prepared by Camisha Sibblis. Relying on R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, and R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, he asks me to take an analogous approach to sentencing Mr. Desmond-Robinson.

Cultural Background

48I agree with defence counsel that racism against Black people is so well-established that I can take judicial notice of it. But I do not agree that it establishes a basis to approach the sentencing of Black persons differently. Nor does it automatically act as a mitigating factor on sentence. As Justice Doherty pointed out in R. v. Hamilton (2004), 186 C.C.C. (3d) 129 (Ont. C.A.) at paras. 97-99, the different approach to sentencing Aboriginal people is rooted in specific language in the Criminal Code, and flows not only from the over-representation of Aboriginal people in prison, but also from a distinct history in Canada, and a traditionally different approach to sentencing within the Aboriginal community (an approach focused on restorative justice). There is no evidence of a similar shared cultural perspective toward sentencing within the Black community. Nor are Black people singled out for special treatment in the Criminal Code.

49Having said that, it is well-established that sentencing is an inherently individual exercise, focused on the particular circumstances of the offence and the offender. Detailed information about an offender's background, including the effects of systemic racism, may be very important in so far as it sheds light on the offender's background and character, and the commission of the offence, crucial to a thoughtful application of the relevant principles of sentencing. As Justice Rosenberg explained in R. v Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 32 (quoted with approval in Hamilton, supra, at para. 134):

[T]he principles that are generally applicable to all offenders, including African-Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence. (emphasis added)

50And as Justice Durno put it in R. v. Bennett [2003], O.J. No. 3218 (S.C.J.) (also quoted by Justice Doherty with approval in R. v. Hamilton, supra, at para.141):

The offender's background is always a relevant factor on sentencing. A sentence must be appropriate for both the offence and the offender. A person with a disadvantaged background, who has been subjected to systemic prejudices or racism, or was exposed to physical, sexual or emotional abuse, may receive a lower sentence than someone from a stable and peaceful background, where the offence is in some way linked to the background or systemic factors. The relevant factors in one person's background will be case specific. A single factor will rarely be determinative. (emphasis added)

51No direct causal connection is required. Rather, like Justice Schreck in R. v. Elvira, 2018 ONSC 7008, I adopt the approach set out by Justice Hill in R. v. Williams, 2018 ONSC 5409, at para. 45:

Having regard to the insidiously stealthy, subtle and general incalculable impact of racial discrimination, and the…Supreme Court of Canada guidance in the context offenders of Aboriginal ancestry…rejecting a straight-line causation analysis, between cultural disadvantage and commission of an offence, before cultural background context is relevant to the sentencing function, the court's dicta in Hamilton [at para.137] is best understood to mean that the record before the court ought to raise this issue from the general to the specific in the sense of some evidence, direct or inferential, that racial disadvantage is linked to constraint of a particular offender's choices and to his life experience in bringing him before the court.

52In addition, the broader principle of restraint contained in s. 718.2(e) of the Criminal Code, quoted above, applies to all offenders, and evidence of the effect of racism in a particular case may well cause it to be of particular importance.

53In sum, an offender's personal circumstances are always important in crafting a fit sentence. In so far as the offender's personal circumstances, including the effects of systemic racism, may have played a role in the commission of the offence, they may have a significant mitigating effect on sentence. But just how much mitigation will depend on all the circumstances, including the nature of the offence and the principles of sentencing. In general, the mitigating effect of personal circumstances will vary with the seriousness of the offence: having a diminished role with more serious offences (which require an emphasis on general deterrence and denunciation), and a greater role with less serious offences (where the personal responsibility of the offender can take on more significance). See Hamilton, supra, at paras. 139-140. A sentence must always be proportionate to the circumstances of the offence and the offender.

Aggravating Circumstances

54The aggravating circumstances include the following:

Gun violence is a scourge in Toronto.
The firearm could be assembled and loaded very quickly.
The firearm posed an immediate risk to Mr. Desmond-Robinson's little brother, and an almost immediate risk to the public.
There is no lawful, pro-social purpose for being in possession of a sawed off semi-automatic rifle in Toronto. While I have concluded that the evidence does not establish that Mr. Desmond-Robinson was personally using the gun, the conclusion is inescapable that this gun was intended to be used for some unlawful purpose. There is only one real purpose for a gun such as this: to kill or seriously injure someone.

Mitigating Circumstances

55The mitigating circumstances include the following:

Mr. Desmond-Robinson was not "armed" with the gun in question, or using it in any way when it was found by police. Nor was there any evidence that he ever did either thing. He was storing the firearm and ammunition in a private place.
Mr. Desmond-Robinson was subject to a strict house arrest bail for approximately 26 months during which time he was precluded from seeking employment other than that "provided by a local school board, or any place of learning, training or recreation."
Despite the constraints of his bail, Mr. Desmond-Robinson has made sustained efforts to upgrade his education and pursue vocational training. He recently wrote the GED. Although he did not pass, he gets credit for trying. I am sure he will pass if he remains positive and continues to work at it. He completed a Food Handlers course and has begun a Business Plan Program.
Mr. Desmond-Robinson suffered a disadvantaged upbringing which I am satisfied has had a bearing on the commission of the offence, including:
- growing up in a home where his mother struggled with alcohol abuse and depression, and he had to care for his mother and siblings and did not learn boundaries;
- being exposed to violence from an early age, including by his parents and police, leading to normalization of violence and mistrust of the police;
- not receiving the educational support he needed at school, contributing to him dropping out without finishing, and constraining his employment options;
- living in a home which his mother opened to all members of the community without regard to who they were or the danger they posed to her children.

What is a fit sentence in all the circumstances?

56The s. 95 offence in this case belongs toward the "outlaw" end of the spectrum. The sawed off shot-gun, and ammunition, stored in Mr. Desmond-Robinson's closet posed a significant and immediate risk to Mr. Desmond-Robinson's family, especially his little brother, and to the public. While it was disassembled, all the pieces necessary to assemble it were in the backpack. Ammunition was in the same closet - in the pocket of Mr. Desmond-Robinson's coat. It amounts to a serious crime attracting an exemplary sentence prioritizing denunciation and deterrence.

57Having said that, the offence does not fall at the top of the spectrum. Mr. Desmond-Robinson was not armed with the firearm during the commission of other criminal activity, like drug dealing, nor did he possess the gun in a public space. Nor is there any evidence that he ever did any of these things.

58No explanation has been provided for the possession of the firearm and ammunition. I found that the evidence does not establish that Mr. Desmond-Robinson was using the firearm to further his admitted drug dealing endeavour, rather he was storing it, likely for someone else. But I also found that there is no innocent explanation for the possession of this gun. There is only one purpose for such a gun: to kill someone or hurt someone badly.

59As I have noted, gun violence is a scourge in the city of Toronto. Illegal guns are almost invariably used in some form of criminal activity, often with tragic results.

60The paramountcy of denunciation and general deterrence does not mean rehabilitation is not important. It is; particularly in the case of a youthful first offender. In Borde, supra, at paras. 36-37, the Court of Appeal directed that the first prison sentence for such an offender should be the shortest possible sentence capable of achieving the relevant sentencing objectives.

61Mr. Desmond-Robinson continues to deny knowledge of the gun, which is his right, and is not an aggravating factor. But I agree with the Crown that his denial limits the weight I can place on the mitigating effect of his background. At the time of the offence, Mr. Desmond-Robinson was 19, and an adult, but he had received little real education and almost no support at home or at school. He worked in the summer, but had poor job prospects. His mother opened their home to all members of the community regardless of their background. Mr. Desmond-Robinson supported his mother and her needs, and those of his siblings, with little regard to his own needs, or the importance of boundaries. In these circumstances, it is logical that he would find it very difficult to refuse to store the gun, or leave it if he found it. The problem with reaching this conclusion, however, is that not only did Mr. Desmond-Robinson deny knowledge of the gun at trial, but he told Ms. Sibblis that he would have moved the gun if he found it, or had someone remove it. What he told Ms. Sibblis also seems inconsistent with his evidence at trial about how he approached finding the ammunition: he testified that he found the ammunition in the summer before the search, and tried to find out who it belonged to but could not. He explained that he did not get rid of it because he did not want the owner to come back for it and get angry upon finding it gone. In these circumstances, Mr. Desmond-Robinson's disadvantaged background does not provide an explanation for the offence. However, I still find that his background, together with his potential for rehabilitation, has mitigating effect.

62I believe that a total sentence of 27 months will provide the necessary denunciation and general deterrence while giving maximum effect to the mitigating circumstances and Mr. Desmond-Robinson's significant rehabilitative potential. The sentence will be broken down as follows: 24 months for the s. 95 firearm offence, and 3 months consecutive for possession of cocaine, and 3 months concurrent for possession of marijuana. The sentence for the possession of the drugs must be consecutive as it relates to a distinct offence. Mr. Desmond-Robinson effectively pleaded guilty to the possession of the drugs and I give him credit for this.

Credit for Pre-trial custody and stringent terms of bail

63Mr. Desmond-Robinson was released on house arrest the day after the search and his arrest. He has remained on house arrest for over three years (over 38 months by the time of the sentencing hearing). While he has used this time productively to further his education, he has not been able to work, other than at a "work program provided by a local school board, or any place of learning, training or recreation".

64In R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.), and R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, the Court of Appeal held that time spent on stringent terms of pre-trial bail is a relevant mitigating circumstance, and as such should be considered by the sentencing judge in determining the appropriate sentence. (Downes said "must" be considered, but a majority of the five-member panel in Ijam concluded that "bail is not jail." and while stringent conditions of pre-trial release "should" be considered, they need not be considered in every case, depending on the circumstances). Where stringent conditions of pre-trial release are considered, there is no formula to be applied. The amount of "credit" will depend on the circumstances of the case, including how stringent the conditions were, how they affected the offender, and their duration. An offender should provide the sentencing judge with information about the effect of stringent terms of bail in order to claim the mitigating benefit.

65In the particular circumstances of this case, I accept the defence submission that Mr. Desmond-Robinson should be given 9 months credit for the stringent conditions of bail. While he has used this time to improve himself, it has also worked a significant hardship on him. He could not live with his girlfriend and new baby, or provide for them.

Ancillary Orders

66A weapons prohibition order is mandatory under s. 109(1)(b) of the Criminal Code for a s. 95(1) offence. This is Mr. Desmond-Robinson's first offence so it will be for 10 years in relation to any firearm, and for life in relation to a prohibited or restricted firearm.

67Possession of a prohibited weapon is a secondary designated offence where proceeded with by indictment (because it is punishable for more than five years). In the circumstances of this case, including the seriousness of the offence, and the minimal impact a DNA order will have on the privacy and security interests of the accused, I am satisfied that it is in the best interests of the administration of justice to order the taking of bodily substances from the accused for forensic DNA analysis pursuant to s. 487.051(3) of the Criminal Code.

Conclusion

68As noted, Mr. Desmond-Robinson will be sentenced to a total of 27 months: 24 months for the s. 95 firearm offence and 3 months consecutive for possession of cocaine, and 3 months concurrent for possession of marijuana. He will be given 9 months credit for the time spent on house arrest leaving an effective sentence of 18 months. The 9 months credit will be applied on the warrant of committal to the various sentences as follows: 6 months credit will reduce the s.95 Criminal Code sentence to 18 months; 3 months credit will reduce the entire s. 4(1) CDSA sentence.

G. ROBERTS, J. RELEASED: January 22, 2020