COURT FILE NO.: CR-24-10000459-0000 DATE: 20240117
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – PETER STEWART Defendant
COUNSEL: Celia Lindo-Butler, for the Crown Marco Forte, for the Defendant
HEARD: November 30, 2023
JUSTICE S. NAKATSURU
[1] Mr. Peter Stewart pled guilty to possessing fentanyl and a loaded prohibited handgun. Both are serious crimes. Both drugs and guns have caused a lot of harm in our communities. Pain. Suffering. Everyone agrees that the most important principles of sentencing at play here are deterrence and denunciation. Yet, I am sentencing you, Mr. Stewart. A young Black man whose route in life so far has been littered with obstacles. My task is a balancing act. Take all relevant factors into account. Weigh them. Give a just punishment.
[2] The facts of your crimes are simple. Too often in our criminal courts we hear such facts. On June 17, 2019, the police got a search warrant for your home and your car. You drove your car into the underground with your girlfriend, got out, and were arrested. You had a satchel with a loaded firearm, chambered, with an overcapacity magazine. Two small baggies of fentanyl were found on your person: 9.9 grams of fentanyl in total. A quantity of cash was located in the center console of the car.
[3] The Crown seeks a jail sentence in the range of three to four years, less credit for pretrial custody and onerous bail conditions. Your lawyer argues for a conditional sentence: a jail sentence to be served in the community.
[4] This sentencing has been a remarkably cooperative and professional exercise with both sides making fair submissions in a collective attempt to get to the right decision. As all sentencing proceedings should rightly be.
A. THE CASE-SPECIFIC FACTORS
[5] To start. A sentence must be proportionate. It must fit the seriousness of the crime. The moral blameworthiness of the offender is important. A proportionate sentence makes sure that we live in a just, safe, and orderly society. Many principles of sentencing, well-known to me, must be considered.
[6] Aggravating factors here are: (1) the firearm was loaded, with an overcapacity magazine and carried by you in a public place in a car; (2) the nature and quantity of the drug; and (3) the dangerous combination of guns and drugs.
[7] My short description of the aggravating factors should not mislead anyone. Guns and fentanyl are toxic to our collective safety. Both have become a plague in our city. [1] It would be most unfortunate if we become inured to their danger because they have become so prevalent. This is why the sentence must emphasize the principles of deterrence and denunciation. We must deter and denounce these crimes, those who commit them, and those are tempted to commit them.
[8] I cannot move on without saying that I appreciate that the amount of fentanyl is not an insignificant amount. Moreover, I recognize that you have, Mr. Stewart, with a quite rare degree of honesty, admitted to leading a criminal lifestyle before you were arrested. However, I am not sentencing you for possession of fentanyl for the purpose of trafficking. Ms. Lindo-Butler, in the proper exercise of Crown discretion, after considering her obligations and the public interest, accepted a plea to the lesser and included offence of simple possession. This plea was carefully negotiated. Many things were considered. Many of which I am not privy to. Still, I am not blind to the realities of this case. But one inescapable reality is that the fentanyl was not possessed for the purpose of trafficking. A punishment for trafficking should not creep back into my sentencing just because you spoke with frankness to the writer of your enhanced pre-sentence report. [2]
[9] Mitigating factors. They are many.
[10] First, you have pled guilty. The Crown agrees it is a significant mitigating factor. Your plea was early. It saved significant resources. Especially at this time when the courts are dealing with a backlog caused by the pandemic. It is also a sign of remorse. I further accept that you have genuine remorse. And you have taken responsibility for your bad choices. You have not only shown it through your plea, but your actions have shown it. Through your actions since your arrest, you have shown me that you have renounced the Peter Stewart that you once were when you were arrested in that car. You have taken the first steps toward becoming a different Peter Stewart. A law-abiding citizen.
[11] Second, you are a first offender. You have no prior record. You were also young at the time of the offence. You were 19 years old. I find this to be an important factor. You made a dreadful mistake. But your young age makes it more understandable. It is easier for me to be more forgiving of that mistake. It also gives us some optimism for your future.
[12] Third, you have family support. Your mother has stood by you and continues to offer you her strong support. So does your sister. Their circumstances are outlined later. For now, this factor supports your prospects for rehabilitation.
[13] Fourth, despite the difficulties posed by your bail conditions, you have not been idle. Once your bail conditions let you, you have worked at the food terminal, a landscaping company, and now at a large well-known courier company. I am advised that you have ambitions to get even better positions there and have taken steps to do so. You have volunteered at the Salvation Army. You have completed a youth training program with the John Howard Society. Also, you have taken part in a group program on anger management and emotional issues with the Society. This speaks well to the potential for your rehabilitation. Of course, I have seen others who have taken greater steps before being sentenced. But what you have done must not only be seen in the context of the strict bail conditions that you were under for many months, but also in light of your background and personal circumstances. Ms. Lindo-Butler has called it impressive. She is not only being very fair but also very right. Not only have you followed all the conditions of your release for four and a half years, but you have gotten a job. Sure, it’s part-time. Sure, it is only delivery work. But it is hard work. It is honest labor. You have not missed a day and have picked up extra hours regularly. You have just come up to your first anniversary with the company and you plan on staying with them. Your employer letter has verified your work and your value. You are supporting yourself while living with your mother. You plan on completing your high school diploma.
[14] Fifth, I accept your counsel’s argument that you are well on the way of breaking free from the life you had lived before. The Crown acknowledges that it has been a long period of time where you have lived in the community while on bail. As I said, four and a half years. With not a suggestion that you have breached any of the conditions of your bail. This is solid proof of how any danger you might have posed has dissipated. You have essentially grown up under court supervision. And have become a better man. We can place trust in your behavior. Place trust in your change of attitude.
[15] Sixth, there is the mitigating factor of the length and harshness of the conditions of your bail. You were released on bail on July 18, 2019, and you were under a very strict release order until November 11, 2021, nearly 28 months. You had to be with your surety, your mother, always, both in and out of the home. Your affidavit speaks to the hardship this caused you. [3] You spent day after day at home with your mother in a small apartment, becoming ever more depressed. You could not work. Your girlfriend broke up with you. You did not socialize. And then the pandemic hit. Your sister and brother also stayed home, making the small apartment even smaller. You became even more depressed and the bail conditions took their toll on you physically as well, as you lost weight; something given your very slight stature you could ill afford to lose. Your bail was then changed to a curfew condition of 10 p.m. once you pled guilty. Things got better since you connected with the John Howard Society and eventually found work. But you still have restrictions on your liberty. Your affidavit states you have not been out of your home past 10 p.m. now for well over four years and you don’t have a girlfriend. Now in your early twenties, you have not had any meaningful relationships with anyone really. This curfew has been a condition for 26 months now.
[16] Overall, this has been a long time. The strict conditions lasted over two years. Add the curfew and it is over four and a half years. On your first release order, the strict conditions impacted your life in all ways. Your work, social, and home life. Even when loosened to a curfew, your social life continues to be impacted. It has taken an emotional and physical toll. Amid this, you had to deal with the fallout from the pandemic which made your home situation more difficult. I find this has had a significant impact on you. It has already been a significant punishment for your crimes. I cannot see how any reasonable person could find otherwise.
[17] The Crown does not dispute this. She leaves the effect of this mitigating factor to me. I will not quantify it in terms of a set number of months. If it were a matter of quantification, it would not be a matter of a few months’ “credit”. While this factor cannot make your sentence disproportionate, I find it is a significant mitigating factor that reduces your overall sentence. [4]
B. THE ENHANCED PRE-SENTENCE REPORT (EPSR)
[18] The mitigating factors do not end there. Seventh is the EPSR. This report by a qualified social worker with 14 years of experience doing clinical assessments and counselling, addresses the specifics of who you are and your life’s intersection with systemic factors, including anti-Black racism, that has brought you before the court.
[19] Overall, it is a valuable report. In it, you have been honest. You have been remorseful. And as the Crown says, and I agree, it shows your palpable fear of being sentenced to jail. I can see why. Your experience in pre-trial custody opened the curtain of how harsh the conditions are in there. It is a world that runs according to unforgiving if not brutal unwritten rules amongst inmates. You were assaulted by a fellow inmate. The injuries were witnessed by your lawyer.
[20] The EPSR reveals the systemic factors that connect who you are to the offences you committed. Ms. Lindo-Butler most reasonably agrees that socio-economic factors and discrimination form a part of the roots of the criminality that has brought you before the court.
[21] The consideration of these systemic factors as they are connected to you, the offender, and the offences, are significantly mitigating. In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Court of Appeal considered how a Black accused’s life experiences may diminish moral blameworthiness in a particular case. In a nutshell, the court held that special considerations apply when sentencing a Black offender. The fact that the offence is committed by a Black person does not minimize the gravity of the offence, or the need to consider a denunciatory sentence, but it may impact the assessment of what constitutes a proportionate and fit sentence and the weight attributed to the prospects of rehabilitation and the emphasis, if any, required in considering specific deterrence.
[22] Evidence of systemic anti-Black racism and its impact on an offender may be relevant to sentencing in two ways. First, it may be mitigating in relation to assessing the offender's moral culpability for the offence. [5] Second, it may inform how a sentencing judge balances the various sentencing principles in the circumstances of an individual sentencing. [6]
[23] Before I get to your report, let me quote from another expert report that was filed in the trial decision of Morris. [7] These very well qualified experts, Dr. Owusu-Bempah, Dr. Sibblis, and Dr. James, jointly delved deeply and thoughtfully into the broader issues of anti-Black racism in Canada. The following summary passage from that report nicely sets the context for your own EPSR:
As documented above, Black Canadians present experiences are rooted in our country's history of colonialism, slavery and segregation. These systems, the latter of which existed well into the 20th century in Ontario, were premised on the idea that Black people are inherently inferior. These systems also served to structure the nature of early social relations in Canada, while at the same time shaping the economic and political landscape. While White Canadians were provided opportunity to access good schools, good jobs and representation in political office, Black Canadians were largely relegated to the margins of Canadian society.
These early experiences of Black Canadians has informed the experiences of those that have come after them. Stereotypical notions about Black intellectual inferiority, the pathological nature of Black families and of Blacks' supposed innate propensity for crime, all rooted in this early period, continue to influence how Black people are treated today. The data documented above demonstrate that Black children are disproportionately removed from their families, due in part, to discrimination in child welfare assessments. Black children are deemed to be less academically inclined and thus streamed into non-university tract programs. They are also subject to harsher discipline in schools which reduces their likelihood of graduation. In the employment sector, Black people face discrimination in hiring, and at times, earn less money for similar work performed by White Canadians, resulting in increased rates of unemployment and poverty. The increased representation of Black people in impoverished neighbourhoods means that they have less access to good schools, community centres and health facilities. They are also exposed to the harsher forms of policing practiced in marginalized neighbourhoods in response to problems of crime and violence.
Importantly, Blacks' negative treatment by these institutions, and the disparate outcomes experienced within them, are cyclical and compounding. Indeed, increased exposure to the child welfare system reduces the chances of academic success, which reduces employability, thus increasing levels of poverty. These circumstances are passed from generation to generation.
[24] Your own EPSR sets out in detail your family’s background. Your mother was born and raised in a poverty and crime ridden neighborhood in Jamaica. Your mother became pregnant at 15 by your father who was in the country on vacation. He is much older. Your early life was marked by the poverty and the violence that your neighborhood was defined by. You, your sister, and your brother came with your mother to Canada for a better life. You were seven. Your mother and father were married for 19 years but separated due to his unfaithfulness. You were 14. Your relationship with your father was and remains remote. He physically disciplined you even as a teenager. Your relationship with your mother suffered from the difficulties she had in her own life although you two are close.
[25] Your mother worked in factories, restaurants, and nursing homes. After the separation, the tough economic times were keenly felt by you in your teenage years. The basics were covered, but that was about all. Food was scarce at times. There was no money for extras. Your father provided little, if any, financial help.
[26] The neighborhoods your family had to live in were impacted by the poverty. [8] Your family could ill afford to live in other places. There was a great deal of community violence and police involvement. The places you lived in had the smells of urine in public areas, had garbage strewn about, and were marked by disrepair such as windows being broken and not fixed. Even now where you live with mother is still affected by poverty, drug use, and violence.
[27] The limiting circumstances and the poverty you have suffered has, in a bad way, affected your attitudes. These attitudes have played a role in your crimes. This has impacted the choices that you made. However, it is good that you have now come to an understanding about this. The EPSR states:
Peter disclosed that many of the Black men in his neighbourhood are in the “same scenario” as him in relation to “having no money” and involvement with the criminal system. In many ways, Peter believed that his neighbourhood has been influential to the path he chose. Peter disclosed that he wanted to try and do “basic things in life”, like having access to a good job and earning enough money to move out on his own. But in light of his family’s circumstances, Peter did not see a positive path for himself where could achieve this goal. Peter remarked: “we are all hungry, we are trying to do things”, and by this statement he meant without access to financial resources, success seemed unattainable for Black men like him in his neighbourhood. In the absence of other options, Peter felt that following a negative path is a consideration that enters one’s mind “to get you what you want”.
Peter wished that he lived in a stable community, where the people around him did not engage in crime. He believed that if he could relocate and live around others who had better outcomes in life he might do better, “the people you are around will make you better”. Living in places that normalize participation in criminal activities affects how one perceives crime. Peter also noted that the impact of poverty and the desperation that exists in these neighbourhoods is a primary factor that drives the decision-making around engaging in criminal behaviour.
[28] With this, unfortunately, comes interactions with the police. You told the EPSR writer of being racially profiled by the police and have described incidents where you and your friends were questioned merely, as you say, because of your clothing or based on stereotypes about Black men. You feel anxiety, discomfort, and mistrust when you interact with the police. You describe a lasting trauma from those interactions.
[29] The neighbourhood schools you went to had their fair share of problems. Your mother described you as having a learning disability. You had an Individual Education Plan. You were a slow learner. In high school, you were having a lot of problems and not advancing. In Grade 10, you stopped going to school consistently and started “chilling” with friends from the neighborhood. When your lack of attendance was noticed, you were sent to an alternative school. From there, to an adult school. But you found these settings were not conducive to your learning needs. In 2019, you attended another alternative school, but reported that students from “rivalling neighborhoods” caused interpersonal conflict and you did not last. You are still a year or less of high school short to get your diploma. Your mother is disappointed that you did not finish school and has encouraged you to do so. Like many immigrants, she sees education as a way up and out. But since your arrest and being on bail, you have tried to juggle work and school, but had to drop out. To your credit, you still are hoping to complete your high school education, though work remains a priority.
[30] Your educational history aligns with what the experts in Morris say the data reveals. There is a systemic failure of Black children in the educational system. Let there be no mistake, that limits opportunity. Moreover, it erodes the motivation to succeed.
[31] Let me give more specific examples of the violence in your neighborhood. As a teenager, you witnessed a shooting. You saw firsthand the victim’s blood. I can only imagine the feelings of horror and insecurity it must have caused in you. These incidents have contributed to your offence by shaping your fears:
Additionally, Peter reported that violence or threats to violence in his neighbourhood heightened his awareness about the risk of being harmed, and encouraged him to consider other options to ensure his safety. Peter has been approached by a group of Black men who were driving in his neighbourhood and have inquired “where he is from”. Peter has been frightened by these encounters because these random drive-by’s can lead to scenarios where shootings occur. As a result of these occurrences, Peter exercises caution while moving through his neighbourhood and does not leave his home unless he is attending work.
[32] Along these lines, but not mentioned in the EPSR, is something even more traumatic. Your lawyer told me about it. The Crown does not dispute it. I accept it. It’s about a very close relative of yours. I will not say a lot about him. That is because he was a young person when he committed his crimes. [9] To give too many details will identify who he is. In 2014, this person was convicted of manslaughter, aggravated assault, and firearm offences. You were only 14 years old. This person was 17 years old when he was attacked by a group of young men in your neighborhood. Some of them allegedly had gang ties. He was struck with a baseball bat and fired a gun back at them.
[33] I have no doubt that as a young teenager this incident had a significant influence on you. I have no doubt it contributed to your feelings of insecurity in the neighborhood and had some effect on you to carry a gun. I have no doubt that your family circumstances, the neighborhoods where Black and other racialized families and individuals have had to live, and your personal lived experiences in them have brought you to a place in your life where you found yourself committing the crimes I am sentencing you for.
[34] The EPSR has helped me tie the systemic issues to your fact-specific circumstances. Indeed, you, yourself, have shown admirable insight and honesty about it. This speaks well for your rehabilitation. The limited opportunities caused by your poverty and failed education, coupled with the negative influences in your neighbourhood, deflected you as you entered into young adulthood away from a productive and law-abiding path. The EPSR writer notes that poverty has been a prevalent concern for Black and racialized communities. Your mother also feels partly responsible, given how her busy work schedule limited her supervision of you. The absence of support in the family is an immediate risk factor for criminal involvement and violence, according to studies, and your mom being a single parent could not offer the support you needed, especially when you became disengaged with school in Grade 10. While the EPSR writer notes a reference for this, I do not need studies to tell me that the higher one’s education, the greater the chance one has for financial success in life. The EPSR writer further opines that given the limited economic opportunities, your family did not have a chance to live in areas of the city that would promote personal growth, security, and happiness. The EPSR writer perceives that certain communities where you grew up in, statistically, are beleaguered by criminal activities such as gun violence and drug trafficking and that community violence is both racialized and affects young Black men at disproportionate rates. The “hood” you grew up in, the lifestyle you chose, and your emotional vulnerability made you feel so unsafe that you armed yourself with a gun. You did not see the police or other institutions as a resource that could fulfill this role. Research on anti-Black racism identified its presence in policing to be a pervasive issue that has affected 80 percent of Black Ontarians.
[35] All of these factors led to a despair about your future that contributed to you succumbing to commit these crimes.
[36] The good news for you and for society is that through your arrest, your time in jail, and the long years on tight bail, you have matured, become smarter about things, and are truly remorseful. The EPSR writer describes you as quiet and timid. You act much younger than your age. Though your nature is such that your ability to share and express your thoughts and feelings are difficult, the writer saw improvement in that as the process of repeated interviews went on. The EPSR writer makes recommendations for education, employment, and counselling. She concludes:
Peter is still a young man who has the opportunity to forge a better path ahead if he maintains the focus that is required to do so. Peter has learned from his past actions that only led him to negative outcomes. Following the completion of his sentence, Peter envisions a positive future for himself and with the right supports in place and his personal motivation, there is hope that he can further develop himself and have a happy future.
[37] You have wished for a more stable community. More than once. To relocate elsewhere. Where people live with more hope and more chances in life. As you say, where “the people you are around will make you better.” Your mother wishes for the same, but given the finances, feels the family is “stuck”. In the EPSR, you show great insight into how marginalization feeds the prevalence of crime.
[38] Given the challenges, you have done exceedingly well for yourself. I find your prospects for full rehabilitation are excellent.
[39] Your crimes are serious. They are truly criminal conduct. Your background and systemic factors do not change this. Moreover, you have free will and you are capable of making your own choices. You made some pretty bad choices in the past. All that recognized, in summing up, the degree of your responsibility and moral blameworthiness is lessened a lot for the reasons I have just explained.
C. PARITY
[40] Similar crimes by similarly placed offenders should receive similar sentences. This is a rule that governs all sentencing. So, I have looked at a lot of other cases. For firearm possession, there is a range of sentence. But serious sentences must be imposed. No question. This is especially so whenever there is a mix of hard drugs and gun possession. When a firearm is possessed as a “tool of the trade”, even for a first offender, a sentence in the Crown’s suggested range is not unusual. This is exactly what the Supreme Court of Canada said in R. v. Nur, 2015 SCC 15:
Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade…. [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. [10]
[41] However, I also take from this passage that even though fentanyl possession [11] is involved in your case and you have admitted to a criminal lifestyle, we are still looking at the same range. Put another way, even when the overall circumstances in your case, show a heightened danger to the public given the mix of guns and drugs, this comment in Nur still applies.
[42] Thus, I have no quarrel with the Crown position of three years as being within the range of sentence for this type of offence. Commonly it is said that the range is three to five years.
[43] However, if there is good reason to depart from such a range, then a trial judge in exercising their discretion can do so. When it is right, as the five-member panel of the Court of Appeal held in Morris, 2021 ONCA 680, a fit sentence for the possession of a loaded prohibited firearm can be a reformatory sentence. [12]
[44] In my opinion, the best way to analyze what the fit sentence should be is within the framework of whether a conditional sentence is appropriate because, given the existence of such strong mitigating factors, whether the sentence should be a penitentiary sentence or a reformatory sentence is a key question to resolve. [13]
D. THE CONDITIONAL SENTENCE
[45] Section 742.1 of the Criminal Code provides for a conditional sentence. [14] The test has several elements: (1) the term of imprisonment must be less than two years; (2) service of the sentence in the community must not endanger the safety of the community; and (3) it must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[46] The principles regarding conditional sentences were explained in the case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. The Proulx approach to s. 742.1 requires a sentencing judge to proceed in two stages. At the first stage, I must determine if a conditional sentence is available. In doing so, I need not impose a term of imprisonment of a fixed duration; rather, I need only exclude two possibilities: probationary measures and a penitentiary term. If a conditional sentence is available, the judge must, at the second stage, determine if it is appropriate.
i. Imprisonment under Two Years
[47] In the first stage, a preliminary determination of the appropriate range of available sentences must be conducted. In doing so, I only need to consider the fundamental purpose and principles of sentencing to the extent necessary to narrow the range of sentence for the offender.
[48] In this case, given the nature and gravity of the offences, denunciation and deterrence are primary sentencing principles. Accordingly, a suspended sentence and probation are easily excluded.
[49] The core question is whether a penitentiary sentence is required to meet those objectives given all the circumstances of this case.
[50] After careful reflection, I find that a sentence of less than two years falls within the range of sentences for you and these offences having regard to the fundamental purpose and principles of sentencing.
[51] First, as I discussed under parity, these offences do not inevitably attract a penitentiary sentence. Other cases have led to sentences in the reformatory range.
[52] Second, there are numerous and strong mitigating factors. Importantly, you were young and a first offender. Even more important, is what you have demonstrated these long years while on bail. You are not just a young first offender who committed serious crimes. You have proven yourself to be an excellent candidate for rehabilitation.
[53] Third, you have demonstrated this despite the many obstacles that your life and the systemic inequality in society have thrown into your path. These challenges illustrated by the EPSR has significantly diminished your moral blameworthiness.
[54] Fourth, given all this, the principle of restraint leads me to conclude that while I must impose a sentence that achieves the goals of denunciation and general deterrence, I must be careful to impose the shortest sentence that accomplishes that. [15]
[55] Fifth, there is the significant mitigating factor of you being on bail. I will observe that the Crown’s position on sentence agreeing that mitigation for the bail conditions could be as high as a year, once applied to the three-year end of the proposed range the Crown seeks, would bring the sentence into the reformatory range.
[56] In sum, while regardless of the mitigating factors the ultimate sentence must remain proportionate, on the specific facts of your case, I find that a penitentiary sentence can be excluded.
ii. A Conditional Sentence will not Endanger the Community
[57] This part of the test is met. Serving your sentence in the community poses little if any risk to the community. While your index offences are serious and the damage that could result if you re-offend would be high, I find that this concern can be dealt with through strict conditions on a conditional sentence.
[58] You have shown great remorse. You have close family support. You have a steady job. And a plan to finish your education. Highly prized is your insight into yourself and your past. Even when you spoke to me, you not only expressed remorse, but were genuinely ready to accept any punishment that I might impose.
iii. Consistent with the Fundamental Purpose and Principles of Sentencing
[59] At the second stage of the test for a conditional sentence, I must do a comprehensive evaluation of the appropriateness of a conditional sentence for the particular offender, considering the fundamental purpose and principles of sentencing as provided in sections 718 to 718.2 of the Criminal Code.
[60] For these offences, as stated time and again, the need for a sentence that deters and denounces is primary. The question is whether a jail sentence to be served in the community will achieve this on the facts of this case.
[61] Consistency with other cases is an important consideration. When I assess this, I find that a conditional sentence can meet deterrence and denunciation needs. Even for possession of fentanyl for the purpose of trafficking, depending on the circumstances, a conditional sentence has been imposed in other cases. [16] While I am fully aware of the context of your possession of fentanyl, I must remind myself again that you are only being punished for simple possession.
[62] In addition, for the offence of possession of a firearm, Morris expressly leaves open the option of a conditional sentence to a sentencing judge and urges that it be given serious consideration. [17] Indeed, in several cases post-Morris, trial courts and appellate courts have granted conditional sentences for the possession of a firearm. [18]
[63] There is one Ontario Court of Appeal case that I would like to expand upon, R. v. Mohamed, 2020 ONCA 163. In that case, a Crown appeal of a conditional sentence was dismissed. While there are some complicating aspects to the case, the main point to take from the decision is that sentencing is a very individual exercise and that in the right case, a sentence like a conditional sentence, one that falls outside of the usual range of sentence, can still be imposed. Mohamed involved a loaded firearm and drugs. The facts were that Mr. Mohamed was arrested after the complainant, who had been a guest in his home, called police to report threats he had made against her boyfriend. During her interview, she revealed that she had observed guns in his home. Mr. Mohamed was arrested while he was driving away from his residence. During the search incident to arrest, police located five bullets in his pants pocket. His car was seized and a search warrant was executed. Within the car, the police discovered a loaded firearm, ammunition, drugs including cocaine in an amount consistent with possession for the purpose of trafficking, scales and cash. At Mr. Mohamed’s residence, police located more ammunition, including three spent rounds.
[64] Justice Fairburn (as she was then) found that despite an error committed by the sentencing judge, the sentence was not demonstrably unfit, the principles of denunciation and deterrence were not improperly subordinated to rehabilitation, and deference should be afforded even when the sentence deviated from the range.
[65] In Mr. Mohamed’s case, even though he was in pre-trial custody, the sentencing judge was most impressed with his remorse and efforts to rehabilitate himself. She found there was excellent potential for his full rehabilitation. Despite the numerous aggravating factors and the “toxic combination” of drugs and guns, the sentencing judge, after accounting for the pre-trial custody and doing her best to distribute it amongst the numerous charges Mr. Mohamed pled guilty to, found that a sentence to be served in the community best met the objectives of sentencing. Justice Fairburn, in upholding the sentencing judge’s lengthy and carefully thought-out decision, commented that in light of Mr. Mohamed’s good prospects “[t]here was nothing wrong with sending a message to this young man, who had clearly demonstrated that he was trying to right his wrong and alter his path, that those steps had not gone unnoticed and were to be encouraged”: at para. 33, citing R. v. Ghadban, 2015 ONCA 760, at para. 23.
[66] I hope, Mr. Stewart, that my message to you will similarly motivate you in the future.
[67] Another principle of sentencing supporting a conditional sentence is that of restraint, given that you are a youthful first offender. Still another is the one mentioned in Morris where we must do better, when the facts call for it, when it comes to the overincarceration of Black offenders. A conditional sentence, in the right case, is an ideal way to tackle this difficult problem.
[68] Here, the prospect of rehabilitation is very good and anchored in the evidence. The fact that you were only 19 at the time of the offence, your increased maturity, the change in attitude and the gained insight, the genuine remorse and acceptance of responsibility, the family support, and all that you have done since your arrest, convinces me of this. You have not just talked the talk. You have walked the necessary walk. Maybe it is not yet complete. I believe you would benefit from counselling or therapy. Certainly, greater socio-economic opportunity in life will help. Perhaps a relationship with a good male role model would also help, as suggested by the EPSR writer. But ultimately, I am persuaded your sentence must reflect your rehabilitative potential. In this way, society will be best protected and the fundamental purpose of sentencing to contribute to respect for the law and the maintenance of a just, peaceful and safe society will be achieved. [19]
[69] I find that there are exceptional circumstances in your case whereby the fundamental principles can be met by a sentence that will be served in the community. This includes deterrence and denunciation. It has been recognized that a conditional sentence is not an anathema to the implementation of these important goals of sentencing. Moreover, I agree with your lawyer that in your case, deterrence and denunciation can further be met by the tightest of house arrest conditions for the whole length of the sentence. Thus, this will be a significant punishment.
[70] Mr. Stewart, I will warn you that any moment you breach these tight conditions, you will be brought back to prison where the presumption is that you serve the remaining period of time left on your conditional sentence in jail.
[71] The maximum reformatory time is the proper sentence; that is two years less a day. Since you have done some pre-trial custody, credit for this will be subtracted from this sentence. You were in jail from June 17, 2019, to July 18, 2019. That is 32 days in pre-trial custody, attracting a credit of 48 days, on the basis of the 1 to 1.5 credit, as allowed for in the Criminal Code. Thus, your sentence will be 22 months and 11 days. Taking into account the totality principle, the sentences on each count will be served concurrently. [20]
[72] In addition to the mandatory terms under s. 742.3 of the Criminal Code, the conditions are as follows.
- During the entire term of the Conditional Sentence Order, you shall not be outside your residence except:
- to attend school;
- to attend work;
- to attend religious services at an organized religious institution;
- to perform community service;
- to attend counselling;
- to attend medical appointments or medical emergencies involving yourself or immediate members of your family;
- to shop for necessities for one four-hour period per week, or two two-hour periods, as your CSO Supervisor shall direct; and
- any other reason deemed appropriate by your CSO Supervisor.
- All the above exceptions include travel immediately to and from. All exceptions must be identified in a written letter of permission approved by your CSO Supervisor, except in the case of emergencies.
- To perform 100 hours of community service at a rate and schedule approved by your CSO Supervisor.
- To attend such counselling as recommended by your CSO Supervisor and sign all releases so that such counselling can be monitored and supervised.
- Not to possess any substance prohibited or regulated by the Controlled Drugs and Substances Act unless it is prescribed by a medical practitioner.
- Not to possess any weapons as defined by the Criminal Code.
[73] Following this will be a period of probation for two years. This will be for your rehabilitation; therefore, the conditions are designed for that purpose.
- Report to your probation officer as required.
- Take such counselling as recommended and sign all consent forms so that your probation officer can supervise and monitor your progress.
- Make reasonable efforts to maintain gainful employment or go to school.
- Not possess any weapons as defined by the Criminal Code.
[74] The Crown further seeks, and the defence takes no objection to, the imposition of a s. 109 order for life, a DNA order, and the forfeiture of the firearms and drugs seized. I will so order.
Justice S. Nakatsuru
Released: January 17, 2024
Footnotes
[1] R. v. Danvers (2005), 201 O.A.C. 138, at paras. 77-78; R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 96; R. v. Paredes, 2014 ONCA 910 at para. 44.
[2] Justice Boswell in R. v. Lewis, 2022 ONSC 1260, at para. 28, faced a similar situation in sentencing an offender for a gun possession and simple possession of cocaine offences. He commented that the quantity of cocaine usually amounted to possession of cocaine for the purpose of trafficking. However, he too recognized that the plea was a negotiated one. The amount of the drug did not deter him from ultimately imposing a conditional sentence.
[3] None of this was contested by the Crown.
[4] The law regarding Downes credits was summarized in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, in the following way:
The propriety of treating "stringent bail conditions, especially house arrest", as a sentencing consideration was affirmed in R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33. Although it is not uncommon to speak of providing "credit" for stringent bail conditions, "pre-trial bail is conceptually a mitigating factor" in assessing a fit sentence: R. v. Panday (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29. The criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity: R. v. Place, 2020 ONCA 546, at para. 20. The mitigating effect that such considerations have on the sentence to be imposed falls within the discretion of the trial judge: Downes, at para. 37.
[5] Morris, at paras. 75-81, 87-101.
[6] Morris, at paras. 75-81, 102-107.
[7] This report is attached to the sentencing decision as an Appendix in R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154.
[8] I find it wrong to name the neighborhoods. Good people live in these neighborhoods. It is unnecessary to stigmatize whole areas of the city. It does nothing to help the communities or those who live in them.
[9] I have read the trial decision and am aware of the findings made by the trial judge.
[10] R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82.
[11] The following cases show that fentanyl sentences, whether for trafficking or possession for the purpose of trafficking, can fall into the low penitentiary or reformatory range. I appreciate that the amounts of fentanyl possessed in these cases are lower. But they are trafficking offences or possession for the purpose of trafficking offences. Starting at the lower end. In R. v. Oksem, 2019 ONSC 6283, the 22-year-old first-time offender received 18 months on a plea to possession of 5.62 grams of fentanyl and 7.64 grams of cocaine. The offender was an addict trafficker who had successfully completed programs for his addiction. In R. v. Hillier, 2018 ONCJ 397, the court awarded effectively a 2-year less a day sentence on a plea for possession of 3.5 grams of fentanyl. Mr. Hillier was a first offender with an addiction and who had community support. In R. v. Menzie, [2020] O.J. No. 654 (C.J.), the offender received a sentence of 2 years 2 months and 7 days for possession of 5.05 grams fentanyl mixed with other drugs for the purpose of trafficking. The offender was a 23-year-old first offender who committed the offence for financial gain. In R. v. Clayton, 2018 ONSC 4125, the court imposed a sentence of 26 months on a plea of possession of 45 patches of fentanyl for the purpose of trafficking. Mr. Clayton was a first offender with addiction and mental health issues, who had trafficked twice. In R. v. Willis, 2019 ONSC 7324, the court imposed a sentence of 2.5 years on a plea for possession of 6.2 grams of fentanyl for the purpose of trafficking. The offender had a record but had community supports. In R. v. Lu, 2016 ONCA 479, the Court of Appeal upheld a sentence of 30 months after trial where the offender was found guilty of possession of 20 100-microgram patches of fentanyl for the purpose of trafficking. In R. v. Gatfield, 2015 ONCJ 526, the offender received 30 months on a plea for possession of 2 patches of fentanyl for the purpose of trafficking.
[12] R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 151; R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 19.
[13] To be clear, the Summers credit for pre-trial custody should not be taken into account in determining whether a penitentiary sentence is appropriate at this stage of determining eligibility for a conditional sentence. This has recently been re-emphasized in R. v. Johnston, 2023 ONCA 808, at paras. 6-7.
[14] Of course, some offences are excluded.
[15] R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at p. 439; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-33.
[16] In some cases, addict street-level traffickers in fentanyl received conditional sentences. In R. v. Nacinovich, 2020 ONSC 7604, the offender pled guilty to possessing 8.6 grams of fentanyl for the purpose of trafficking, with a lengthy criminal record but had achieved great success with his addiction. He received a conditional sentence of two years less a day. In R. v. Mori, 2020 ONCJ 620, a longtime heroin addict who had 38.66 grams of heroin with some fentanyl mixed in received a conditional sentence of two years less a day after successfully completing a residential treatment program. In other cases, where the trafficking though done by addicts, was solely for profit, strong rehabilitative prospects paved the way for a conditional sentence. In R. v. Han, 2022 ONCJ 343, the offender was an addict trafficker who had 15.6 grams of fentanyl for the purpose of trafficking and received a conditional sentence. In R. v. Shearer, 2022 ONCJ 288, a youthful addict trafficker without a record who trafficked 0.43 grams of fentanyl and had 2.84 grams of fentanyl in his possession received a conditional sentence. In R. v. Gordon, 2023 ONCJ 157, involved possession of fentanyl for the purpose of trafficking and the offender received a conditional sentence. In other cases, a conditional sentence has been granted for trafficking or possession for the purpose of trafficking where the motive was only profit. In R. v. Grant, 2021 ONCJ 507, an 18-year-old offender received a two-year-less-a-day conditional sentence for possession of several different drugs, including fentanyl for the purpose of trafficking. In R. v. Russell, 2023 ONCJ 133, a conditional sentence was given for possession of 7.73 grams. of fentanyl for the purpose of trafficking. In R. v. Williams, 2023 ONCJ 259 a conditional sentence was given for possession of 14.27 grams of fentanyl and 3.1 grams of cocaine.
[17] At paras. 180-181.
[18] There are other cases that support the granting of a conditional sentence on such gun offences: R. v. Hill, 2023 ONCJ 357; R. v. Beharry, 2022 ONSC 4370; R. v. McLarty-Mathieu, 2022 ONCJ 498; R. v. Moses, 2022 ONSC 332; R. v. Fabbro, 2021 ONCA 494, at para. 27; R. v. Collins, 2023 ONSC 5768; R. v. Stewart, 2022 ONSC 6997; R. v. Yogo, 2023 ONSC 4144; R. v Ramos, 2023 ONSC 1094; R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Roy, [2023] O.J. No. 4931 (S.C.J.); R. v. Roberts, 2023 ONCJ 226; R. v. Edwards, 2023 ONCJ 53; R. v. Lacroix, 2018 ONCA 842; R. v. Lewis, 2022 ONSC 1260. I specifically note the case of R. v. Marier, 2023 ONSC 5194, where Garton J. granted a conditional sentence even though the defendant had been subject to a bail condition not to possess a weapon. Also, in R. v. Ulmer, 2020 ABQB 393 a conditional sentence was ordered for a firearm offence despite the accused having a criminal record including charges for failing to comply.
[19] R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 20.
[20] On the gun possession, Mr. Stewart pled guilty to both ss. 95(1) and 92(1) of the Criminal Code. R. v. Boussoulas, 2015 ONSC 1536, at paras. 13-15, aff’d 2018 ONCA 222, 407 C.R.R. (2d) 44, holds that the Kienapple principle does not apply to the offence possession of a loaded prohibited or restricted firearm while not the holder of an authorization, license, or registration certificate, contrary to s. 95(1) of the Criminal Code and the offence possession of a firearm knowing that he was not the holder of a license for the firearm, contrary to s. 92(1) of the Criminal Code.
