Court File and Parties
COURT FILE NO.: 15378/20 DATE: 20220224 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Jessy Lewis
BEFORE: The Honourable Justice C. Boswell
COUNSEL: F. Stephens for the Crown R. Siddiqui for Mr. Lewis
HEARD: February 24, 2022
Reasons for Sentence
[1] Mr. Lewis entered guilty pleas before me on November 15, 2021 to two counts: possession of a loaded, prohibited firearm contrary to s. 95(2) of the Criminal Code; and possession of cocaine, contrary to s. 4(3) of the Controlled Drugs and Substances Act. Sentencing submissions were received on February 11, 2022. The following is my ruling on sentence.
The Circumstances of the Offence
[2] On October 5, 2018, officers of the Durham Regional Police Service executed a search warrant at Mr. Lewis’ residence on Porter Street in Oshawa. They located a safe in the basement of the residence. Mr. Lewis’ mother advised that the safe belonged to Mr. Lewis. Officers asked Mr. Lewis for the combination to the safe but he advised that they would need a warrant to open it. The safe was seized and transported to a local police station. It was opened by the police on October 9, 2018.
[3] The safe contained a .32 caliber revolver with a barrel less than 105mm. It is classified as a prohibited weapon. The weapon contained 2 rounds of ammunition. Mr. Lewis had no license to possess firearms.
[4] The safe also contained 49.7 grams of cocaine and $2,650 in Canadian currency. In addition, it held a wallet, in which there was a further $1,560 in Canadian currency.
The Circumstances of the Offender
[5] Mr. Lewis is 25 years old. He was 22 at the time of the offences. He was convicted in December 2020 of two counts of uttering forged documents. He received a conditional discharge, however, and the prior offences are of no moment for the purposes of this sentencing.
[6] Mr. Lewis has not yet finished his high school education. When he was a teenager his mother was diagnosed with cancer. She also suffered from mental health issues. Her illnesses had a significant impact on him. His father has never been a strong presence in his life. He has wanted for guidance and role models.
[7] Mr. Lewis undoubtedly went through a stretch of bad behaviour. But he has taken very significant steps to turn his life around since his arrest on the index charges.
[8] He takes full responsibility for the offences and appreciates their seriousness. He spent 7 months at the Central East Correctional Institute after his arrest. He found that time very difficult and does not wish to repeat it. He was depressed when first released on bail. He did not believe he would be able to obtain work with an outstanding firearm charge, so he started his own business.
[9] Mr. Lewis’ business is called “Three Amigos”. He does snow removal, tree removal and landscaping. He reports that his business has been terrifically successful. He has been able to purchase a truck with a plow and a salter. He has an excellent base of customers and has been so busy he has had to turn away work. He says he has undergone a big change in his life. His counsel submits that he is a role model to other young men in his community. He has proven that you can turn your life around. He is now able to support himself, his family and his mother through legitimate, socially beneficial employment.
The Impact of the Offences
[10] Given the nature of the offences, no victim impact statement was filed. That does not mean that these were victimless crimes. The loaded, prohibited firearm is a particularly serious offence, especially when it was associated with the possession of a significant amount of cocaine.
[11] I need not drill down too deeply into the risks that loaded, prohibited firearms pose to our community. They have only one purpose – to main or kill people.
The Legal Parameters
[12] The maximum sentence for possession of a loaded, prohibited firearm is ten years. Section 95(2)(i) of the Criminal Code continues to provide for a minimum sentence of three years for a first offence under this section. That section was, however, struck down by the Supreme Court as unconstitutional in R. v. Nur, 2015 SCC 15.
[13] The maximum sentence for possession of cocaine is seven years.
The Governing Principles
[14] The objectives of sentencing are codified in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[15] The importance of these individual objectives, and how they interact, varies from case to case. There is little debate that where a loaded, prohibited firearm is involved, the objectives of denunciation and deterrence take centre stage. Having said that, Mr. Lewis was a young man of 22 at the time of the offences. He is still just 25. He has shown that he is capable of meaningful change. Rehabilitation remains a compelling objective.
[16] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C..
[17] Proportionality engages the concepts of censure and restraint. It ensures that a sentence reflects the gravity of the offence, promotes justice for victims and ensures public confidence in the justice system. At the same time, it ensures that a sentence does not exceed what is appropriate, in light of the moral blameworthiness of the offender.
[18] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[19] At the same time, the court must recognize that sentencing is an acutely individualized exercise. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.
The Positions of the Parties
[20] The Crown seeks a three-year custodial sentence for the weapons offence, together with a four-month concurrent sentence for the possession of cocaine. In addition, the Crown seeks the following ancillary orders:
(a) A s. 109 weapons prohibition for life; (b) A DNA order; and, (c) A forfeiture order. The Crown is prepared to return to Mr. Lewis certain personal effects seized at the time of the search warrant and at the time of his arrest. In particular, the Crown is prepared to return Mr. Lewis’ wallet, jewellery and other personal effects. But it seeks to forfeit the $4,210 found in the safe in Mr. Lewis’ basement.
[21] The Crown agrees that Mr. Lewis is entitled to a credit against his sentence for any time served in pre-sentence custody at the usual rate of 1.5 days for each day served, in accordance with the Supreme Court’s direction in R. v. Summers, 2014 SCC 26.
[22] Mr. Lewis’ counsel urges the court to impose a reformatory sentence on the firearm offence of two years less one day. She takes no issue with the sentence sought for the conviction of possession of cocaine.
[23] She submits that Mr. Lewis should receive significant mitigation against sentence for his guilty plea and for the way in which he has turned his life around. His sentence should also be mitigated, she says, due to (1) the harshness of the conditions of his pre-sentence custody; and (2) the stringent conditions of his release terms. She says he has spent 273 days on house arrest and another 584 subject to a curfew. It is agreed between counsel that he is also entitled to a Summers credit for 7.5 months of pre-sentence custody, which nets out to be 11.25 months.
[24] According to her calculations, with all things considered, Mr. Lewis should be in a time-served position. Alternatively, he should only have several months yet to serve on his sentence. That time should be served, she contends, in the community pursuant to a conditional sentence or, if it is 3 months or less, it should be served intermittently.
Analysis
[25] I will begin my analysis of the sentencing issue with a consideration of the aggravating and mitigating circumstances of the case.
[26] Possession of a loaded, prohibited firearm is a serious offence, one deserving of firm condemnation. Mr. Lewis bears significant moral blameworthiness for the offence. I would describe it at the “true crime” end of the spectrum of conduct prohibited by s. 95. He had no authority to possess a loaded handgun of this nature, nor any legitimate reason to possess it.
[27] Apart from the inherent seriousness of the offence, there are no particularly aggravating circumstances present. Mr. Lewis was not found with the gun on his person. He did not possess it, at the time of the offence, in a public location. It was found in a locked safe in his basement.
[28] The gun was found in proximity to more than 49 grams of cocaine. That is an amount generally consistent with trafficking in cocaine. That said, Mr. Lewis entered a plea on a negotiated resolution. The plea was to simple possession. In the circumstances, I cannot find that this was a case where the “toxic combination” of guns and drug trafficking serve as a significant aggravating feature.
[29] There are a number of significant mitigating circumstances present. For instance,
(a) Mr. Lewis is a young man and, for the purposes of this sentence, a first-time offender; (b) Mr. Lewis has accepted responsibility for his actions. I am satisfied that he is genuinely remorseful for his conduct and motivated to improve the circumstances of his life; (c) Mr. Lewis entered a guilty plea as part of his acceptance of responsibility. He thereby saved significant court time at a period when the court is significantly backlogged due to the impact of the covid pandemic; (d) Mr. Lewis has made substantial and successful efforts at rehabilitation; and, (e) Mr. Lewis has served 7 ½ months in pre-sentence custody. He experienced particularly harsh conditions during that period due to regular lockdowns. Moreover, he was subject to stringent bail conditions for an extensive period following his release.
[30] Mr. Lewis is a young Black man. The Court of Appeal for Ontario recently considered, in R. v. Morris, 2021 ONCA 680, the manner in which sentencing courts should take evidence of anti-Black racism into account on sentencing.
[31] Counsel did not tender any social context evidence relevant to Mr. Lewis’ life experiences. That said, I can, and do, take judicial notice of the fact that Black Canadians have experienced, and continue to experience, discrimination across a broad range of social institutions including child welfare, education, employment and, certainly, criminal justice. They are subject to persistent, harmful stereotypes about intellectual inferiority, the pathological nature of Black families, and the propensity of Blacks, particularly young Black men, to commit crimes and engage in violence.
[32] Having said that, the Court of Appeal instructed, at para. 97 of Morris, that to mitigate the moral responsibility of an offender, “there must be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Otherwise, mitigation “becomes a discount based on the offender's colour.” Such a discount is not recognized by our law.
[33] In this instance, counsel did not assert that any connection exists between overt and systemic racism in the community and any circumstances said to mitigate Mr. Lewis’ moral responsibility for the index offences. I have not, in the result, discounted Mr. Lewis’ sentence on the basis of social context factors. Nevertheless, I do acknowledge that young Black men are over-represented in the criminal justice system and in particular in custodial institutions and I do take that factor into account in terms of the sentence imposed.
[34] The Court of Appeal went on, at para. 151 of Morris, to observe that the offence of possessing a loaded, prohibited weapon calls for a denunciatory sentence. In most cases, they said, a penitentiary sentence is warranted. But in some cases, where there are strong mitigating factors, sentences at or near the maximum reformatory sentence of two years less a day may be imposed.
[35] In my view, there are strong mitigating circumstances here. Most significantly, Mr. Lewis was a young man when the index offences were committed. He had limited education. His mother had a history of serious physical and mental illness and his father was not in the picture. He lacked guidance, positive role models and, undoubtedly any real hope for a positive future. These factors inform his involvement in the index offences. Since being charged – and spending a stint in pre-trial custody – he has turned his life around. He operates a successful business. He is able to support himself and his family. He takes full responsibility for his prior actions and asks only that he be given the chance to continue with his efforts towards rehabilitation.
[36] In my view, an appropriate sentence on count 2 (the weapons offence) is two years. I accept counsel’s submission that a four-month concurrent sentence be imposed on count 3.
[37] I would reduce the 2-year sentence, however, on account of the particularly harsh conditions Mr. Lewis experienced at the Central East Correctional Institutional during his 7 ½ months there. See R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344.
[38] Mr. Lewis did not adduce evidence of the conditions or their impact on him. He did not, for instance, subpoena the lockdown records of CECC for the time he was an inmate there. That failure is problematic, but not fatal. CECC has been plagued by chronic lockdowns for years now. Those lockdowns are generally the result of staff shortages. They have been referred to repeatedly in sentencing decisions of judges in this region. They have been persistent and unchanging for many years now. There is no question in my mind that Mr. Lewis was subject to a substantial number of lockdowns during his time at CECC. Those lockdowns result in a severe reduction in access to the dayroom, to the yard, to showers, to visitors and to telephones. They lead to anxiety and depression among those subjected to them.
[39] Without more particular evidence of the specific experiences of Mr. Lewis, the mitigation I apply is a modest two months.
[40] Mr. Lewis is also entitled, in my view, to some credit for the significant period during which he has been subject to stringent bail conditions.
[41] In R. v. Downes, [2006] O.J. No. 555, the Court of Appeal held that time spent under stringent bail conditions, such as house arrest, may be taken into account as a relevant mitigating circumstance on sentence. The amount of credit to be given is in the discretion of the trial judge and there is no formula that must be followed. It will vary depending on a number of factors including the length of time spent on bail, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity.
[42] Mr. Lewis was first released on a surety bail with a house arrest condition. He continued to be subject to those stringent conditions for 9 months. His release terms were subsequently varied to permit him to pursue employment – a variation which he took full advantage of. He remained subject to a curfew, however, to remain in his residence from 8:00 p.m. to 6 a.m. each day. The curfew provision has continued for 20 months.
[43] In total, Mr. Lewis has spent 29 months on bail. The first nine of those involved very stringent conditions. That last 20 were less stringent. Mr. Lewis was able to start and build a business. He was able to carry on a largely normal life. Still, a nightly curfew for a period of almost two years must be recognized as a significant imposition on Mr. Lewis’ liberty.
[44] Bail is not jail as the oft-repeated saying goes. But the conditions of bail that Mr. Lewis has been subject to have been a form of punishment on him. The fact that the punishment was imposed before conviction does not alter the fact that he has already been significantly punished for his wrongdoing. Mr. Lewis is entitled to a meaningful credit for that punishment. I fix it at four months.
[45] The Summers credit, as I noted, is the equivalent of 11.25 months. Taking into account the Duncan, Downes and Summers factors, the net sentence to be served is 6.75 months.
[46] At para. 180 of Morris, the Court of Appeal instructed that where the sentence imposed is at or below the two-year mark, careful consideration must be given to the imposition of a conditional sentence. This is particularly so where the proper use of a conditional sentence may serve to ameliorate the long-standing problem of the over-incarceration of young Black men.
[47] In my view, no rational purpose would be served by re-incarcerating Mr. Lewis. It would be counter-productive for him as well as the community, which has a vested interest in the success of his rehabilitative efforts.
[48] I accordingly sentence Mr. Lewis to a conditional sentence of 6 months and three weeks. He is subject to the statutory conditions, of course, which include the following:
(i) To keep the peace and be of good behaviour; (ii) To appear before the court when required; (iii) To remain in Ontario unless he has prior written permission from the Court or his supervisor to leave the province; and, (iv) To notify the supervisor in advance of any change of name or address and to promptly notify the supervisor of any change in employment or occupation.
[49] Mr. Lewis is to report to a supervisor within 2 working days and thereafter at such times and places as directed by the supervisor or any person authorized by the supervisor to assist in his supervision.
[50] For the first four months of the conditional sentence order, Mr. Lewis will continue to be subject to a curfew to remain in his residence each day between the hours of 8:00 p.m. and 6:00 a.m., except for any medical emergencies involving him or a member of his immediate family.
[51] For the final two months and three weeks, he will be subject to the statutory terms only.
[52] I also impose the following ancillary orders:
(i) A s. 109 weapons prohibition on count 2, for life; (ii) A DNA order on count 2; and, (iii) A forfeiture order in relation to the seized weapon and ammunition, as well as the drugs seized from Mr. Lewis’s safe. The Crown asked that the Canadian currency also be forfeited as obvious offence-related property. I might have agreed had the plea been to possession of cocaine for the purpose of trafficking. As it is, I have insufficient evidence to conclude that the currency represents proceeds of crime. Those funds, together with Mr. Lewis’ wallet, jewellery and other personal effects are to be returned to him.
C. Boswell J. Date: February 24, 2022
