COURT FILE NO.: CR-22-91101915-0000 DATE: 20241115

SUPERIOR COURT OF JUSTICE

ONTARIO

BETWEEN:

HIS MAJESTY THE KING Kellie Hutchison, for the Crown

- and -

JUAN-MANUEL GUEVARA Marco Sciarra, for the Defendant Defendant

HEARD: October 4, 2024

REASONS FOR SENTENCE

S.E. FRASER J.

I. Overview

1Following a trial, a jury found Mr. Guevara guilty of possession of a loaded firearm, contrary to s. 95(2) of the Criminal Code of Canada, and possession of cocaine, a controlled substance, contrary to s. 4(1) of the Controlled Drugs and Substances Act.

II. Facts

A. Circumstances of the Offence

2On March 4, 2022, Mr. Guevara was driving his girlfriend’s car after leaving a nightclub and was stopped by York Regional Police.

3After questioning, the officer conducted a search of the vehicle that he was driving and found cocaine and a loaded prohibited firearm in the centre console of the car.

4I shall accept as proven facts, the findings, express or implied, that are essential to the jury’s finding of guilt.

5I accept therefore, that the jury found that Mr. Guevara was in possession of cocaine and that Mr. Guevara knew that the substance was illegal.

6I also accept that the jury found that Mr. Guevara knew that he was in possession of a loaded firearm and that he did not have the required license or authorization to possess the firearm and did not have the required registration certificate.

7At trial, Mr. Guevara maintained that he loaned the car to an acquaintance who he referred to only by an initial. He told the court that he did not know that the gun and the cocaine were in the car. By its verdict, the jury clearly rejected Mr. Guevara’s assertion that he had no knowledge of the gun and the cocaine being in his girlfriend’s car.

8Mr. Guevara and his girlfriend Brittany Pearce told the court that this acquaintance borrowed the car from him in Toronto where he lived and worked, and that Mr. Guevara arranged to pick up the car from him in Richmond Hill at the nightclub, even though Mr. Guevara did not expect to be sober enough to drive home.

9It was admitted at trial that the firearm taken from the car was examined by D/C Mark Hoekstra, a Firearms Officer, and determined to be a fully functioning Taurus G2C handgun, which is a prohibited firearm. D/C Hoekstra also examined the ammunition seized from the firearm (8 x 9 mm cartridges). The ammunition was determined to fit the Taurus G2C and was fully functional.

10In respect of the cocaine, it was agreed that during the traffic stop of Mr. Guevara, police seized 0.04 grams of cocaine from the vehicle. A certificate of analysis confirmed that the drug seized was cocaine.

B. Circumstances of the Offender

11Mr. Guevara is a 38-year-old man and committed these offences when he was 36.

12He is a Canadian citizen. He has a criminal record which is dated. The record contains 2009 convictions for armed robbery, forcible confinement, and failure to comply with a recognizance. The record reflects that he breached a conditional sentence order and that the order was suspended.

13The pre-sentence report filed at the sentencing hearing sets out that Mr. Guevara’s father has not been in his life for the last 17 years.

14Mr. Guevara describes physical and psychological abuse at the hands of his father and that his father was physically and sexually abusive towards his mother and youngest sister. He has excellent relationships with his mother and two sisters.

15He has struggled with anger. Ms. Pearce told the Probation Officer who authored the PSR that when she lived with Mr. Guevara, he often would spend weeks not being able to get out of bed and that he lacked motivation. She believes that he may have been suffering from depression. They were together for six years but are no longer together.

16Mr. Guevara is a boxer and is supported by his boxing coach/employer. Mr. Guevara worked for him as a personal trainer and boxing coach also worked part-time for a cannabis retailer as a team lead. His employers both provided good reports about his work habits, responsibility, and attendance.

17Mr. Guevara describes having some anxiety and mental health issues and is working with a social worker engaging in psychotherapy.

18He asks that upon being sentenced that he be able to continue with his psychotherapy while in custody. He appreciates that he will be the subject of a jail term.

19In the pre-sentence report, Mr. Guevara admits to having the gun and drugs in the car with him but told the probation officer that the gun did not belong to him.

C. Impact on the Victim and/or Community

20The use of illegal firearms constitutes a serious threat to the peace, justice, and safety of our community. They are used to threaten, maim, and kill.

21As noted by the Court of Appeal for Ontario in R. v. Morris, 2021 ONCA 680, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society.

III. Positions of Crown and Defence

22There is no real dispute between the parties that the firearm offence attracts the higher sentence and that the range is three to five years. The parties also agree that the appropriate Summers credit is 29 days. The parties disagree on the impact of the restrictiveness of bail conditions with the Crown asserting that a Downes credit be limited to 3 months and the Defence arguing for a 300-day (10-month) credit.

23The Crown seeks a global sentence of four years and ancillary orders. The Crown argues that the bottom range of the sentence is not appropriate as it is generally available to persons with no criminal record or who have pled guilty.

24The Crown asserts that despite the age of the criminal record, a sentence in the range proposed by the Crown is appropriate.

25The Defence argues that three years is a fit sentence. Relying on R. v. Barreira, 2024 ONSC 4682, the Defence asserts that first offenders who unlawfully possess a restrictive firearm are often in the maximum reformatory range and that those with prior criminal records tend to receive sentences of three years imprisonment, where possession is associated with no other criminal activity.

26The Defence requests that I recommend that Mr. Guevara should be able to continue psychotherapy and asks he be able to pursue a welding certificate.

IV. Mitigating and Aggravating Factors

A. Mitigating Factors

27Mr. Guevara has support from friends and family alike. He has been engaged in pro-social activities from the time of his last offences in 2009 and has been a productive member of society through his work, boxing, and personal training endeavours.

28Mr. Guevara spent two years on house arrest. While he was able to go to work, I find that his liberty was curtailed in that he was required to be in the presence of a surety when outside of his residence for non-work purposes. I have no evidence on the impact of these bail conditions upon Mr. Guevara.

29Before me, Mr. Guevara appeared remorseful. I am concerned that this statement in the PSR, that the gun was not his, could be a deflection of his responsibility, despite his further statement that he accepted full responsibility.

30In my view, given his work history, the support from family, friends, and employers, he has excellent prospects for rehabilitation. This is further supported by the significant gap between his 2009 offences and these offences.

31In the end, the most compelling factors are his productive lifestyle, the support of family and friends and his strong prospects for rehabilitation.

B. Aggravating Factors

32The criminal record, while dated, is an aggravating factor.

33I also find the fact that Mr. Guevara had the firearm in a public place is an aggravating factor.

V. Law and Analysis

A. Principles of Sentencing

34Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence – both general and specific, 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 an acknowledgment of the harm done.

35Section 718.1 mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider parity such that offenders who commit similar offences in similar circumstances should receive similar sentence (See R. v. Friesen, 2020 SCC 9, at para. 31). This principle is reflected in s. 718.2 (b) of the Criminal Code.

36In Friesen, the Supreme Court again stated that that parity is an expression of proportionality. Sentencing precedents reflect “the range of factual situations in the world and a plurality of judicial perspectives. Precedents embody the collective experience and the wisdom of the judiciary. They are the practical expression of both parity and proportionality.” (Friesen, at paras. 32 and 33.)

37I note also that I am bound by the principle of restraint. This means that I should not deprive an offender of his liberty if less restrictive sanctions may be appropriate in the circumstances.

38Sentencing must be tailored to the circumstances of the offence and the offender. The process of arriving at a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. (See R. v. Nur, 2015 SCC 15, at para. 43.)

39In R v. Nur, 2013 ONCA 677, Justice Doherty set out for the Court of Appeal for Ontario, at para. 206:

….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. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

40This was re-affirmed in R. v. Mohiadin, 2021 ONCA 122, at para. 12.

41In Nur, Justice Doherty also explored that s. 95 offences capture a wide range of conduct, from someone who uses it as a tool of their illegal trade to the responsible gun owner who possesses the gun outside of a place that falls within the terms of a license.

B. Sentencing Ranges for the Offences

42The sentencing range is important to respect parity.

43The primary consideration on the loaded prohibited firearm are the principles of denunciation and deterrence with the most important principle being general deterrence.

44In R. v. Nur, the Supreme Court of Canada struck down mandatory minimum sentences and upheld a 40-month sentence for a 19-year-old first offender. While it struck down the mandatory minimum, the Court held at para. 120 that it “remains appropriate for judges to continue to impose weighty sentences in other circumstances,”.

45Of the cases provided to me, the circumstances of the offence and offender are similar to both R. v. Mohiadin 2021 ONCA and R. v. Kachol, 2017 BCCA 292, where sentences of 36 months were imposed. In Mohiadin, the defence invited a conviction after a Charter motion was dismissed. The accused was 19 years old and was considered a youthful first-time offender.

46These factors lead me to believe that a sentence of more than three years is appropriate.

47In Barreira, supra, the court imposed a five-year global sentence. However, the court found that it was an aggravating factor that the firearm was used as a tool of the trade. In Barreira Justice Stribopoulos fully canvassed the range.

48The amount of cocaine seized was small and attracts a sentence of months. By way of example in R. v. Lourenco, 2017 ONSC 7606, a sentence of two months was imposed for simple possession of one ounce of cocaine. In R. v. Sitladeen, 2024 ONSC 4244, Justice Charney imposed a sentence of 3.5 months where the amount possessed was just over 9 grams.

C. Application

49I find that the parties’ proposals are within the appropriate range. I find that a conditional sentence order is not appropriate given Mr. Guevara’s previous breach.

50I find that the circumstances of the offence are not such to attract the high end of the range. There is no evidence that Mr. Guevara used the firearm as a tool of the trade. The offence is also not at the low end of the range.

51While he is not a first-time offender, Mr. Guevara has had no convictions since 2009 which, in my view, speaks to his rehabilitative potential. He was working two jobs at the time of the offence, as he is now, and this in my view demonstrates that he has been and remains a contributing member of society.

52In light of the parity principle, the need for an exemplary sentence, that Mr. Guevara is not a first-time offender, that he has good prospects for rehabilitation and reintegration and that I must impose the least restrictive sentence in accordance with the principle of restraint, I find the appropriate sentence is 42 months.

53I will apply a Downes credit to reduce the sentence. There is no specific formula, and I may either assign a credit or consider the circumstances in determining the fit sentence. I have decided to assign a credit.

54Mr. Guevara was arrested on March 4, 2022. I am imposing sentence today which is 679 days later. Mr. Guevara spent 19 days in custody and 660 days on release. Mr. Guevara lived in a condo with his partner while on release and worked. His conditions permitted him to leave his home in the company of a surety and for work.

55I find that these conditions were restrictive in the sense that his liberty was curtailed. I have no evidence on the impact of the conditions. I am prepared to credit Mr. Guevara for four months for the restrictiveness of his release conditions while on judicial interim release.

56Mr. Guevara, please stand so that I may pronounce sentence.

57In the present case, I find a sentence of 42 months is the appropriate sentence taking into account the totality principle and the factors discussed above. This sentence is comprised of:

a. 42 months for the possession of a loaded prohibited firearm; b. 1 month for the possession of cocaine, concurrent.

58From that I deduct credits of four months for restrictive conditions while on house arrest, and 29 days for pre-trial custody for a total deduction of 4 months and 29 days, leaving a sentence of 37 months and 1 day.

59I recommended that Mr. Guevara be permitted to continue psychotherapy and to pursue a welding certificate to improve his prospects for rehabilitation.

VI. Ancillary Order

60In addition to the custodial sentence, there will be a s. 109 order for 20 years, a DNA order and an order for the forfeiture of the seized property which I previously ordered following the finding of guilt.