Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230922 DOCKET: COA-23-CR-0220

Hourigan, Paciocco and Nordheimer JJ.A.

BETWEEN

His Majesty the King Appellant

and

Denton Smith Respondent

Counsel: James Clark, for the appellant Alexander Ostroff, for the respondent

Heard: September 8, 2023

On appeal from the sentences imposed by Justice Martha Zivolak of the Ontario Court of Justice on January 31, 2023.

Reasons for Decision

[1] The Crown seeks leave to appeal the total sentence of two years less a day to be served in the community imposed on the respondent following his convictions for possession of a prohibited firearm with readily accessible ammunition; breach of a weapons prohibition order; possession of a firearm with the serial number removed; pointing a firearm; and possession of cocaine for the purpose of trafficking.

[2] The respondent was charged with these offences after the police became aware of an incident that occurred on June 5, 2021. On that day, surveillance cameras captured the respondent chasing a woman in a car. He eventually pointed a gun at the woman. One month later, when the police executed a search warrant at the respondent’s house, they found a .22 calibre handgun with the serial number removed and ammunition next to it. They also found over $7,000 in cash and 137 grams of cocaine, along with other tools of the drug trade.

[3] The respondent pled guilty. He had a recent criminal record for violence and was bound by a weapons prohibition order at the time of the offences. The sentencing judge imposed a two-year less one day conditional sentence on the possession of a prohibited weapon charge. She sentenced the respondent to a concurrent 18-month conditional sentence on the trafficking offence. She also sentenced the respondent to time served plus one day (126 days of presentence custody) on the weapons prohibition order breach, and a six-month conditional sentence concurrent on the possession of a firearm with the serial number removed. Finally, the sentencing judge sentenced the respondent to six months Downes credit on the point firearm offence.

[4] The appellant submits that the sentences imposed were demonstrably unfit and that the sentencing judge made errors in principle. We do not need to address the first contention as we agree with the second. Since the sentencing judge made errors in principle in imposing the sentence that she did, this court is entitled to intervene and must undertake its own sentencing analysis: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 27.

[5] The principal error made by the sentencing judge revolves around the view that she took regarding the seriousness of the firearms offences involved. That view appears to have been driven by her conclusion that the facts did not “satisfy a ‘true crime’ characterization”. In our view, the sentencing judge misunderstood the concept of a true crime characterization in the sentencing context. That concept was discussed in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 paras. 51-52 and 144, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. Properly understood, it was intended to draw a distinction between a true crime and what might simply be a regulatory infraction that happens to be caught as a criminal offence because of the wording of the Criminal Code.

[6] Any ambiguities that might inhere in this concept do not arise on the facts of this case. The acknowledged facts are that the respondent used the gun when he pointed it at a female with whom he had a dispute. He also had the gun for his “protection” as a drug dealer. It is difficult to see how those facts fail to establish the elements of a “true crime”. Indeed, Doherty J.A. said in Nur, at para. 51:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public.

[7] The possession of a loaded handgun is a very serious offence. It is acknowledged that such conduct will normally attract a penitentiary term of imprisonment: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641 at para. 151. If a penitentiary term of imprisonment cannot be excluded, then a conditional sentence should not be imposed: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 58.

[8] The one exception to a penitentiary term of imprisonment, noted in Morris, is where there are “strong mitigating factors”. The mitigating factors in this case were not strong. In fact, the strength lay in the aggravating factors. The respondent was 25 years old at the time of the offences. He had a prior record including convictions for assault; uttering threats; and failure to comply with an undertaking. The respondent was also an admitted drug dealer and was subject to a weapons prohibition order.

[9] The sentencing judge appears to have misunderstood the evidence with respect to the mitigating factors she relied upon to impose the sentence that she did. First, she said that the respondent was an “addict trafficker”. The facts show that the respondent began trafficking drugs before he became addicted and that he possessed the firearm prior to that time, so his subsequent addiction does not provide an explanation for his possession of the firearm. Even accepting that the appellant dealt drugs in order to support his drug addiction, that does not lessen the seriousness of the gun offences. It can properly be relevant to the sentence on the drug offence, but not on the gun offences.

[10] Second, the sentencing judge also found that a term of imprisonment would interfere with the respondent’s employment. However, the respondent did not have employment. Rather, he had an offer of employment available to him once he was in a position to accept it.

[11] Properly understood, the mitigating factors as they related to the respondent did not warrant a departure from the presumptive penalty of a penitentiary term of imprisonment, given the seriousness of the offences and the aggravating factors that were extant. On this point, we note that the respondent’s background and personal circumstances are markedly different that those of the respondent in R. v. Filian-Jimenez, 2014 ONCA 601, upon which he relies.

[12] Finally, we note that Downes credit is not a sentence, but a credit applied to reduce a sentence. The respondent could not properly be sentenced to Downes credit. In so sentencing the appellant, the sentencing judge effectively increased the sentence by six months over the limit where a conditional sentence could be imposed. We accept that the sentencing judge no doubt did this unintentionally. In any event, that error does not change the fact that a conditional sentence was not appropriate in the circumstances of this case.

[13] In our view, given the circumstances of the offender and of the offences, the proper total sentence to be imposed on the respondent is four and one-half years before any credits. Against that, the appellant accepts that the respondent is entitled to the six-month Downes credit determined by the sentencing judge and to the credit for his pre-sentence custody. In addition, the respondent is entitled to some credit for the time that he has been on his conditional sentence. Aggregating all of these credits would leave a total of three years to be served.

[14] We would break down the total sentence to be served as follows:

Possession of a prohibited weapon with readily accessible ammunition: 2 years Breach of prohibition order: 6 months consecutive Possession of firearm with serial number removed: 1 year concurrent Point firearm: 6 months consecutive Possession of cocaine for the purpose of trafficking: 2 years concurrent

[15] Leave to appeal is granted, the sentences below are set aside, and in their place the respondent will be sentenced as set out above for a total effective sentence of four and one-half years. A warrant for the arrest of the respondent may issue, if required.

“C.W. Hourigan J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”