Court of Appeal for Ontario

Date: 2022-05-06 Docket: C68516

Judges: Doherty, Tulloch and Favreau JJ.A.

Between: Her Majesty the Queen, Respondent and Jah-Kiyo Desmond-Robinson, Appellant

Counsel: Jeff Carolin and Taufiq Hashmani, for the appellant Craig Harper, for the respondent

Heard: May 3, 2022

On appeal from the convictions entered by Justice Gillian E. Roberts of the Superior Court of Justice on January 17, 2019, reported at 2019 ONSC 451, and an application for leave to appeal and, if leave is granted, an appeal from the sentence imposed on January 22, 2020 and reported at 2020 ONSC 436.

Reasons for Decision

The Conviction Appeal

[1] The appellant was convicted of a firearms-related offence and possession of cocaine and marihuana. He was ultimately sentenced to 18 months imprisonment after being given 9 months credit for the time he had spent on restrictive bail terms prior to his conviction.

[2] At trial, the appellant admitted possession of the narcotics. He denied that he knew the firearm, a sawed off rifle, was in a backpack under a pile of clothing in his closet. The appellant further admitted that he was aware that ammunition for the sawed off rifle was in his jacket hanging in the same closet.

[3] By the end of the evidence, the outcome of the trial turned on a single factual issue – had the Crown proved beyond a reasonable doubt that the appellant knew the sawed off rifle was in the backpack found in his closet? If the Crown met that burden, the appellant was guilty of the firearms offence. If the Crown failed to meet that burden, the appellant was entitled to an acquittal.

[4] After reviewing the evidence, the trial judge concluded, at para. 36:

I agree with the Crown that the only reasonable inference that can be drawn from the evidence in this case is that Mr. Desmond-Robinson knew about the sawed off rifle hidden in his closet. As the Crown noted, the rifle, together with the ammunition for it stored in the same closet, were valuable. The owner would only keep the firearm and ammunitions somewhere safe and accessible. Mr. Desmond-Robinson had to know about the items for that to be the case. Otherwise, the firearm and cartridges could be discovered and possibly moved or given away, or inadvertently moved or thrown out. In addition, the owner needed to be able to access the backpack in a timely way. Again, Mr. Desmond-Robinson had to know about it and its contents in order to ensure that this could happen.

[5] The trial judge clarified the nature of the appellant’s possession in her reasons for sentence. The trial judge indicated that, while she was satisfied the appellant knew the firearm was in his closet and had control over it, she was not satisfied the firearm belonged to the appellant, or that he was using the firearm in any way, and in particular in connection with any criminal activity involving drug trafficking.

[6] The appellant makes various arguments, all of which take issue with the trial judge’s fact-finding. The appellant submits the trial judge misapprehended the defence as being premised on the claim that the gun owner had “abandoned” the gun as opposed to hiding it in the appellant’s closet without the appellant’s knowledge.

[7] The trial judge’s reference to the gun being abandoned was made in the context of her consideration of whether it would be reasonable, on all of the evidence, to infer that someone would effectively discard a sawed off rifle by leaving it in a backpack in someone else’s bedroom with no intention of maintaining any control over it. The trial judge rejected that possibility. She then went on to consider whether an owner would hide the weapon in the appellant’s bedroom without telling the appellant, while intending to maintain possession of the weapon. She concluded that the only reasonable inference was that the owner would not hide the gun in the appellant’s closet without his knowledge. The trial judge gave reasons for that conclusion. There is no error in her reasoning.

[8] The reasons of the trial judge provide a full and compelling analysis of the evidence and demonstrate a proper application of the relevant legal principles, including the burden of proof.

[9] The conviction appeal is dismissed.

The Sentence Appeal

[10] The trial judge’s reasons for sentence reveal a careful consideration of the appellant’s personal circumstances and the extensive social context evidence placed before the trial judge. This was a difficult sentencing. The firearms offence was serious, however, there was much to be said in mitigation of the appellant’s personal blameworthiness and in favour of his rehabilitative potential.

[11] The trial judge ultimately imposed a net sentence of 18 months on the firearms charge, and a sentence of time served on the drug charges.

[12] In the course of her reasons for sentence, the trial judge said, at para. 31:

While it is well established that a conditional sentence can provide for general deterrence and denunciation, defence counsel acknowledged during submissions that it provides less denunciation and general deterrence than a sentence of equal length served in custody. For this reason, I view a conditional sentence as outside of the range affirmed by the Court of Appeal. This is particularly true in Toronto in late 2019 and early 2020, after a year when the city has been racked by gun violence. [Emphasis added.]

[13] We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge’s reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.

[14] The trial judge erred in principle in holding that a conditional sentence was beyond the range of potential sentences for the offences committed by the appellant. In light of that error, it falls to this court to determine a fit sentence.

[15] Counsel for the appellant in his submissions acknowledges that a significant term of imprisonment is appropriate in the circumstances. He submits, however, that having regard to all of the relevant considerations, including the appellant’s very positive rehabilitative steps while on bail, a conditional sentence of two years less a day plus probation for 24 months is the appropriate sentence.

[16] We agree with counsel’s submissions. The material before the trial judge paints a very positive picture of the appellant. He is a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.

[17] The evidence placed before this court makes an even stronger case for a conditional sentence. The offences took place over five years ago. Since then, the appellant has completed a culinary program through the Toronto District School Board and now works as a chef in a restaurant. He has become a father and lives with his fiancée and child. He has taken on significant childcare and household responsibilities. He has stayed out of trouble and has not been charged with any further offences.

[18] Given the circumstances of this offender, a conditional sentence on the firearms charge of two years less a day, to be followed by probation for two years, is a fit sentence. The sentence on the drug offences remains a sentence of time served.

[19] The terms of the sentence order and the probation order are attached as Appendix A to these reasons.

[20] The sentence appeal is allowed, and the sentence varied according to the terms set out above. The ancillary orders made by the trial judge on sentencing remain in effect.

Doherty J.A. M. Tulloch J.A. L. Favreau J.A.

Appendix A

The Conditional Sentence Order (for a period of 2 years less a day)

General

1. That the offender be imprisoned for the term of 24 months less one day with the offender to serve the sentence of imprisonment in the community, subject to the offender’s complying with the following conditions, namely that the offender shall: a. Keep the peace and be of good behavior; b. Appear before the Court when required to do so by the Court; c. Report (within 2 working days or as the Court directs) in person to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor; d. Remain within the Province of Ontario, unless written permission to go outside the Province is obtained from the court or the supervisor; e. Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation; f. Attend appropriate culturally sensitive counselling and support as directed by your supervisor, with a specific consideration of: i. Grief/Bereavement Counselling; ii. Ethno-culturally informed and trauma-informed psychotherapy – offering: Cognitive Behavioural Therapy for anxiety, depression, and self-esteem; iii. Ethno-culturally specific mentorship, and opportunities to mentor: Ujima House (Afro-centric education and support group for Black fathers); iv. Academic Support; v. Employment counselling, job readiness skills, apprenticeship such as through Building Up – www.Buildingup.ca ). g. Abstain from owning, possessing, or carrying any weapons as defined by the Criminal Code. h. Abstain from owning, possessing or carrying any firearm or firearms possession and acquisition license or certificate.

Curfew

2. For the first 12 months, Mr. Desmond-Robinson is to obey a curfew to be in your place of residence between the hours of 10:00 p.m. and 6:00 a.m., with exceptions for: a. Employment; b. School attendance; c. Medical appointments or emergencies involving Mr. Desmond-Robinson or a member of his immediate family; d. Religious services; e. Child care responsibilities; f. Legal obligations regarding compliance with this conditional sentence order.

Each of the above exceptions includes permission for immediate direct travel only to and from the applicable location.

The offender will provide a proposed schedule to the supervisor setting out school or work hours, medical appointments, religious services, childcare responsibilities, shopping times, and any legal obligations that fall within his curfew hours pursuant to this order. The supervisor will incorporate these into a written letter of permission to be out of the residence and that letter shall be carried by the offender on his person at all times while outside the residence during his curfew hours.

The offender may obtain from the supervisor written permission to be absent from the residence during his curfew hours for any other reason deemed appropriate by the supervisor. Such written permission shall be carried by the offender on his person at all times while out of the residence during his curfew hours.

Final conditions

3. For the last 12 months, less a day, Mr. Desmond-Robinson is to obey the following conditions: a. Keep the peace and be of good behavior; b. Appear before the Court when required to do so by the Court; c. Report as directed by the conditional sentence supervisor and in the manner directed by the supervisor; d. Remain within the Province of Ontario, unless written permission to go outside the Province is obtained from the court or the supervisor; e. Notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation; f. Attend appropriate culturally sensitive counselling and support as directed by your supervisor, with a specific consideration of: i. Grief/Bereavement Counselling; ii. Ethno-culturally informed and trauma-informed psychotherapy – offering: Cognitive Behavioural Therapy for anxiety, depression, and self-esteem; iii. Ethno-culturally specific mentorship, and opportunities to mentor: Ujima House (Afro-centric education and support group for Black fathers); iv. Academic Support; v. Employment counselling, job readiness skills, apprenticeship such as through Building Up – www.Buildingup.ca ). g. Abstain from owning, possessing, or carrying any weapons as defined by the Criminal Code. h. Abstain from owning, possessing or carrying any firearm or firearms possession and acquisition license or certificate.

Terms of Probation Order (for a period of 2 years)

1. Report to a probation officer as required;
2. Reside at an address approved by a probation officer;
3. Notify the court or the probation officer in advance of any change of name or address;
4. Promptly notify the court or the probation officer of any change of employment or occupation;
5. Abstain from owning, possessing or carrying any weapons;
6. Abstain from acquiring, or possessing any firearm;
7. Attend and actively participate in counselling and treatment programs as directed and sign necessary releases for probation to monitor treatment.