Court File and Parties

Court File Nos.: CR-23-30000034 & CR-24-30000044 Date: 2024-12-18 Ontario Superior Court of Justice

Between: His Majesty The King – and – Alexander Raybe

Counsel: Matthew Shumka, for the Crown Monte MacGregor, for Alexander Raybe

Heard: April 12 and July 15, and 30, 2024

R.F. Goldstein J.

1. Overview

Overview

1On April 12, 2024 Mr. Raybe pleaded guilty to two counts of possession of a loaded prohibited firearm. The two counts arose out of incidents on August 8, 2021, and November 2, 2021. On July 30, 2024, I sentenced Mr. Raybe to a global sentence of 7 years in the penitentiary, less pre-sentence custody. I also imposed ancillary orders. At the time I stated:

People who engage in gunfights in this city will receive significant sentences in the penitentiary. This case is an example.

On August 8, 2021 and on November 2, 2021 Mr. Raybe fired a handgun. During August incident he shot at someone although nobody shot at him. The November incident was more of a two-way gunfight – shots were fired at Mr. Raybe, and he fired back. Mr. Raybe was injured during the November incident. On April 12, 2024 Mr. Raybe pleaded guilty to two counts of possession of a loaded prohibited firearm together with readily accessible ammunition contrary to s. 95(1) of the Criminal Code. He now comes before the Court for sentencing.

Mr. Raybe’s family and supporters are in the courtroom, and everyone is anxious to know what sentence this court will impose. Accordingly, with the agreement of counsel, I will simply give very brief reasons and at a later point release full reasons.

Mr. Raybe comes before the court as a 21-year-old Black man. He has a child and very good family support. I accept that he has experienced systemic racism. I will sentence him as a first offender. He committed two very significant crimes, but he was a very young man when he did that. Were he to have been convicted after a trial of discharging a firearm in these circumstances he could easily be facing a sentence in the range of 10 years on each. By choosing to plead guilty, he saved considerable court resources and should receive credit for that. Crown counsel acted very reasonably by agreeing to guilty pleas to possession rather than discharge offences.

Mr. MacGregor and Mr. Shumka both agree that the primary sentencing principles in cases of this nature are denunciation and deterrence. Mr. MacGregor puts more emphasis, however, on Mr. Raybe’s potential for rehabilitation. Mr. Shumka acknowledges Mr. Raybe’s prospects, but argues that deterrence and denunciation are paramount.

The Crown’s global position of 8 years concurrent on each offence is quite reasonable and within the range even on a guilty plea. Mr. MacGregor’s position is that I should sentence Mr. Raybe to a global sentence of 5-6 years. When I take into account the principle of totality, Mr. Raybe’s relative youth, and his guilty plea, I find that a global sentence of seven years is appropriate.

On the indictment charging the August 2021 offence, I sentence Mr. Raybe to 3 ½ years in the penitentiary. On the indictment charging the November 2021 offence, I sentence Mr. Raybe to 3 ½ years in the penitentiary, consecutive to the August 2021 offence, less pre-sentence custody of 35 days at the enhanced rate. Accordingly, the warrant of committal for the August 2021 offence will read 3 years, 4 months, and 25 days to be served consecutively.

There will also be a s. 109 order for ten years on the August 2021 indictment, and a s. 109 order for life on the November 2021 indictment. Finally, there will be a DNA order in relation to the August 2021 incident.

My full reasons will be released in due course.

2What follows are my full reasons for sentence.

2. The August 8, 2021 Incident

The August 8, 2021 Incident

3On August 8, 2021 Mr. Raybe drove his white Ford Fusion to a carwash on Galloway Road in Scarborough, Toronto. He arrived at about 5:48 pm. He parked in the lot. He then had an encounter with two men. They went into a carwash bay. One of the men produced a handgun. Mr. Raybe had a confrontation with the other man. They were both empty-handed. The two men pushed each other. Mr. Raybe then produced a gun from his right front pants pocket. The man moved away from Mr. Raybe. Mr. Raybe fired the gun twice, towards Galloway Road. He then left the scene in his Ford Fusion.

4Residents in the Galloway Road area contacted 911. Toronto Police officers arrived on scene. The police found two shell casings. One of the rounds struck a residential fence. There is no evidence that the other two men fired shots. Mr. Raybe was not known to the police. Much of the incident was caught on surveillance video but the police could not identify the shooter at that time. An internal bulletin was circulated with the Toronto Police about the identity of the shooter.

3. The November 2, 2021 Incident

The November 2, 2021 Incident

5On November 2, 2021 Mr. Raybe was driving his Ford Fusion on Bellamy Road in Scarborough. An unidentified grey car approached Mr. Raybe’s car. As the unidentified car pulled up someone in that car (or more than one person) fired gunshots towards Mr. Raybe’s car. Mr. Raybe shot back. He used the same gun he had used during the August 2021 gunfight. Multiple bullets struck the Ford Fusion. Mr. Raybe was shot in the left shoulder.

6Mr. Raybe then drove himself to Scarborough General Hospital. When he got out of the car, a woman named Zyann Brown exited the front passenger seat of the Ford Fusion. Ms. Brown removed certain items from the Ford Fusion. She then met with one Kyandre Pessoa. Mr. Pessoa was driving an SUV. Mr. Pessoa then left his vehicle, got into the Ford Fusion, and drove it away. Ms. Brown drove the SUV away.

7Mr. Pessoa was stopped by the police a short distance away from the hospital. The investigating officers observed four shell casings in the Ford Fusion. The police seized the vehicle but released Mr. Pessoa at the scene.

8Investigating officers attended Scarborough General Hospital. They subsequently arrested Mr. Raybe for the November 21 firefight. One of the officers felt that Mr. Raybe seemed familiar. He then reviewed the surveillance from the August 2021 incident. The officer correctly concluded that Mr. Raybe was indeed the same person who fired the two rounds during the August 2021 incident. He also correctly concluded that the Ford Fusion in the August 2021 incident was the same vehicle in the November 2021 incident.

9On May 29, 2022 the York Regional Police investigated Mr. Pessoa. He was in possession of a Taurus 9mm handgun. The police forensically analyzed the weapon. It matched the shell casings found from the August and November 2021 incidents.

4. Mr. Raybe’s Circumstances

Mr. Raybe’s Circumstances

10I have reviewed a pre-sentence report that was prepared for Mr. Raybe. He was 21 years old when I passed sentence but turned 22 in September. He was born in Jamaica and came to this country at age 11. He lived with his father, older sister, and niece. He is a permanent resident. He will likely be deported as a result of these offences. His mother still resides in Jamaica and is a homemaker. His father lives in Toronto and works at an auto parts factory.

11Mr. Raybe told the probation officer that he was raised in Jamaica by his mother. They lived in impoverished circumstances. The relationship between his father and his mother ended in 2007 when he was five years old. He stated that he has not seen his mother in ten years, and he is very emotional about it. He has been unable to visit her in Jamaica. He described a relationship with his father that was “okay” but stated that his closest relationship is with his sister. None of the members of his family has had contact with the criminal justice system.

12According to one of his high school teachers, Mr. Raybe is very resentful that his mother could not care for him in Jamaica and had to send him to Canada. She was aware that his relationship with his father is not ideal. Mr. Raybe described the neighbourhood he has lived in as very violent with a great deal of crime; his father does not entirely agree with that assessment. Mr. Raybe noted that he has lost friends to violence.

13Mr. Raybe was in a relationship that has recently produced a daughter. He told the probation officer that he gets along well with the mother of his child. He cares for her every day while her mother works, although he did not want the mother of his child to be consulted for the report. His teacher noted that Mr. Raybe had been streamed into the non-academic level. She said that this was common for Black boys. She felt that it was unfair, and in Mr. Raybe’s case he was bright enough to go to university. She also said he was not a behavioural problem in class and should not have been streamed away from the academic level. She reported that he had been accepted to Ryerson University (as it was then known) but had been unable to attend for financial reasons. That was not quite what Mr. Raybe told the probation officer. He said that he had never applied to university or college.

14Mr. Raybe reported to the probation officer that he has worked as a janitor, and at a call centre. He did not provide any proof of employment. Substance abuse does not appear to be significant a problem for him, although he has experimented with different substances. He did report that systemic racism affected him in school and that he tries to stay away from the police because he knows how they work.

15In terms of his education, Mr. Raybe reported that he has graduated from high school and finished in the honour roll. He does not, however, have his diploma. His teacher noted that he appears to be missing one credit and this is likely the reason he has not received his diploma. She was making enquiries about whether guidance counsellors had not advised Mr. Raybe correctly.

16Mr. Raybe told the probation officer that he is not involved with a gang; that information was contradicted by Detective Constable Sarjoo of Guns and Gangs, who indicated that Mr. Raybe is an associate of the MNE gang. The Crown did not seek to prove beyond a reasonable doubt that Mr. Raybe is, or was, a member of a criminal gang. That said, videos filed by the Crown suggest that Mr. Rabye at the least associates with gang members and displays things associated with criminal gangs and criminal gang activities. Those things include hand signs, cash and guns. As I note later in these reasons, those things affect the degree of mitigation for the guilty plea and Mr. Raybe’s prospects for rehabilitation. The probation officer assessed – and it is plainly correct – that Mr. Raybe has been affected by negative peer associations. He also appears to have issues with poor decisions, financial management, and problem-solving. The probation officer also assessed that at the time of the two shootings, Mr. Raybe was living a “high-risk lifestyle”. The probation officer recommended trauma counselling and other counselling to assist him.

17Mr. Raybe’s friend Adrian Lawrence works at the Scarborough Village Recreation Centre. He provided a letter of support. He said that Mr. Raybe has the potential to be a good citizen, and that he is very remorseful about his actions. He says that Mr. Raybe understands that his poor life decisions are what caused him to commit these crimes and therefore shows some insight.

18Mr. Raybe’s sister Thalia Raybe also wrote a letter of support. She says that her brother has grown and transformed. The birth of his daughter has especially influenced him. Ms. Raybe says that he has transformed himself into a compassionate, responsible family man.

5. Impact on The Community

Impact on The Community

19The first charge involved a gunfight on the streets of Toronto. And so did the second. The first shootout was initiated by Mr. Raybe; the second was not, but he was an enthusiastic participant. This court has emphasized time and time again that handguns are a pernicious problem in our city. Many innocents have been killed and injured. Many people living a criminal lifestyle – primarily young men – carry handguns and use them on each other. That is no less tragic – it means the end of what might have been promising lives. Mr. Raybe, it appears, was living such a lifestyle and did exactly that. It is miraculous that on the two occasions where he fired his handgun that nobody was killed or injured. I agree with the statement of my colleague K. Campbell J. in R. v. St. Clair, 2018 ONSC 7028 at para. 47:

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

6. Legal Parameters

Legal Parameters

20Possession of a loaded prohibited handgun contrary to s. 95(1) of the Criminal Code currently carries a maximum sentence of 14 years imprisonment. At the time of the offence, however, it carried a maximum sentence of 10 years. Parliament has increased the penalty. Of course, Mr. Raybe is only liable for the lesser punishment.

7. Positions of the Crown and Defense

Positions of the Crown and Defense

21Mr. Shumka’s position on behalf of the Crown is that Mr. Raybe should be sentenced to 8 years on each firearm, with the sentences to be served concurrently. Each offence on its own, since it involved a shooting, could well attract a sentence in the range of 7-8 years. The principles of totality and restraint, as well as the mitigating factors of Mr. Raybe’s age, anti-Black racism, and the guilty plea, militate a more moderate sentence.

22Mr. McGregor submits that the proper range of sentence is 5-6 years globally, less pre-sentence custody. He points to all the same factors that the Crown points should mitigate the harshness of a lengthy sentence. For example, Mr. Raybe was 18 at the time of the first offence and the PSR details his difficult history.

8. Mitigating and Aggravating Factors

Mitigating and Aggravating Factors

23The most important mitigating factor in this case is that Mr. Raybe pleaded guilty. That mitigation has some limits in this case. Mr. Raybe pleaded guilty on the day set for his trial in the face of an extremely strong Crown case. Given the post-Covid backlog in our courts, and the saving of judicial resources, it was still welcome and is a proper mitigating factor.

24A guilty plea is an expression of remorse. That expression of remorse, however, has limits in this case. Mr. Raybe did submit a letter of apology. He pointed out, and I accept this, that he was “young and dumb” when this happened. He also says that his life has changed, and his outlook has changed, with the birth of his baby girl. That is not the end of the story, however. The Crown submitted several TikTok music videos. Mr. Raybe appears in them. In one video, he is wielding a handgun. There are multiple references to shooting the firearms. In another video he refers to getting a head blown off and a GPS monitor. In another video he there are large amounts of cashed displayed, and in yet another video a warning about defending territory.

25As Mr. Shumka acknowledged, there are difficulties with using these TikTok videos. It is unclear when they were posted. As well, while they may show gang affiliation or motivation, they are interpreted by many people as a form of art. I do not need to wade into that debate. The Crown does not seek to show that Mr. Raybe is the member of a gang. The Crown’s position – and I agree – is that the TikTok videos show Mr. Raybe holding guns, pantomiming the holding of guns, and making reference to the use of guns. Whether or not these videos are considered to be art, they do call into question whether Mr. Raybe has truly rejected the use of guns. That calls into question his prospects for rehabilitation and creates a need for specific deterrence. I acknowledge that he likely created or was involved in these videos before he spent time reflecting on his crimes, and before the birth of his baby girl. I therefore give them some limited weight.

26Other mitigating factors include Mr. Raybe’s youth, lack of criminal record, and difficult upbringing. I accept that Mr. Raybe has been subject to systemic racism and I accept that as a mitigating factor: R. v. Morris, 2021 ONCA 680.

27There are also several significant aggravating factors in this case. The key aggravating factor is obviously the fact that both incidents involved the discharge of a firearm. I am satisfied of that fact beyond a reasonable doubt.

28I also find Mr. Raybe’s actions during both incidents highly aggravating.

29During the first incident, he started shooting first. There was no element of self-defence. During the second incident, it is true that he was shot at, but he made no attempt to escape. He shot at a moving car from another moving car. It is impossible to overstate how dangerous that is. Life is not a James Bond movie and Mr. Raybe is not a Navy SEAL. His chances of hitting a moving target were tiny. His chances of hitting a bystander were high.

30In both cases, Mr. Raybe fired a gun in a residential area. The consequences of doing so could have been devastating and it is only a matter of luck that he did not kill or seriously injure someone.

9. Principles of Sentencing

Principles of Sentencing

31A sentence must reflect the gravity of the offence and the degree of responsibility of the offender. The important principles of sentencing involving the possession of a loaded prohibited or restricted firearm are general and specific deterrence, and denunciation. For all the reasons that I have mentioned, the courts must deter the possession of handguns and denounce the crime when it occurs. This sentencing principle is actualized through the mechanism of exemplary sentences: R. v. Mohammed, 2017 ONCA 691 at para. 6. Absent exceptional circumstances, the range for possession of a loaded prohibited handgun is generally in the range of 3 years where the possession of the gun is a true crime or being used as the tool of an illegal trade, and not a mere regulatory infraction: R. v. Nur, 2013 ONCA 677 at para. 109; R. v. Nur, 2015 SCC 15 at para. 82.

32Balanced against the necessity of general and specific deterrence, and denunciation, is the need for restraint where a young, racialized first offender is before the court. It is also a principle of sentencing that a sentencing judge should consider sanctions other than incarceration for youthful first offenders: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.). I do take into account Mr. Raybe’s youth and his status as a first offender. That said, offences involving possession of a firearm, and discharging a firearm, require exemplary sentences: R. v. Nur, 2015 SCC 15 at para. 5. Deterrence and denunciation remain the primary sentencing principles with cases involving firearms, and particularly the discharge of a firearm. The Supreme Court of Canada upheld the Ontario Court of Appeal’s decision in that case. As Doherty J.A. stressed in the Court of Appeal in R. v. Nur, supra, at para. 206, the most important sentencing principle in firearms cases is general deterrence:

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.

33The most important principles where a firearm is discharged are also general deterrence and denunciation. The usual range is between 7 and 11 years: R. v. Belissimo, 2009 ONCA 49 at paras. 3-5; R. v. Dhaliwal, 2019 ONCA 398 at paras. 2-4.

34I am aware that there will be collateral consequences to this sentencing. Mr. Raybe will likely be deported. I take that into account but were I to impose a sentence that would allow him to appeal any immigration finding (as I understand it, less than 6 months) it would result in a sentence that is manifestly unfit.

35I am also aware that Mr. Raybe spent time on house arrest before his bail conditions were loosened. Unfortunately, after he pleaded guilty but was still on bail he was arrested while breaching one of his bail conditions. He was outside his residence, after hours, and was in a car going away from his residence. I revoked his bail, held a new bail hearing, and allowed him out on stricter conditions. Given his disregard for his bail conditions, I am disinclined to grant him any Downes credit.

36Another important principle is totality. A court must avoid imposing a sentence that is so crushing as to destroy any hope of rehabilitation. Consecutive sentences in the range of 7 or 8 years would not be out of the range of sentence for these offenses and would be proportionate to the gravity of the offences. When applied to a young first offender – Mr. Raybe was 18 and, as he put it, young and dumb – such a sentence would offend the totality principle.

37Accordingly, I find that a global sentence of 7 years is fit. This sentence is at the low end of the range under the circumstances, but reflects the mitigation of the guilty plea, the principles of rehabilitation, restraint, and totality, and still is severe enough to reflect the principles of denunciation and deterrence.

10. Sentence Imposed and Ancillary Orders

Sentence Imposed and Ancillary Orders

38As noted, on the indictment involving the August 2021 conviction, I sentenced Mr. Raybe to 3 ½ years in the penitentiary. On the indictment involving the November 2021 conviction, I sentenced Mr. Raybe to 3 ½ years in the penitentiary, consecutive to the sentence on the August 2021 offence, less credit for pre-sentence custody. Mr. Raybe spent 23 days in custody; he is thus credited with 35 days at the enhanced rate of 1.5:1: Criminal Code, s. 719(3.2). Thus, Mr. Raybe had 3 years, 4 months, and 25 years left to be served on that count. I also imposed a s. 109 order for 10 years on the August 2021 conviction, and a s. 109 order for life on the November 2021 conviction. I also imposed a DNA order on the August 2021 conviction.

R.F. Goldstein J.

Released: December 18, 2024