Between

Her Majesty the Queen

E. Pancer and K. Benzakien for the Crown

— AND —

Richard Baker

H. Cedro for the defendant

Reasons for Sentence

Justice Lipson

Facts and Charges

[1] On January 8, 2014 Richard Baker pleaded guilty to possession of a loaded prohibited firearm, unauthorized possession of a firearm, possession of a firearm in a motor vehicle, possession for the purpose of trafficking in a controlled substance (MDMA) and four counts of breach of a prohibition order.

[2] The charges relate to an arrest that took place on March 5, 2013. Police were seeking to apprehend the accused on a warrant of apprehension. Mr. Baker had been released on parole May 2, 2012 while serving a penitentiary sentence for his fourth firearms conviction. One of the terms of his release was a reporting condition. On August 27, 2012 Mr. Baker had failed to report resulting in the issuance of the warrant for his apprehension.

[3] Officers observed Mr. Baker leaving an afterhours club located in the Jane and Wilson area of Toronto and drive off in a vehicle. The officers executed a high-risk vehicle stop and arrested Mr. Baker. In Mr. Baker's jacket the officers found a .40 calibre Glock pistol loaded with 7 rounds of .40 calibre ammunition. In the car police found a quantity of drugs including 7.65 grams of MDMA powder and 3 MDMA pills. At the time he was subject to four firearms prohibitions as well as being a parole violator.

Criminal Record

[4] Mr. Baker has a lengthy criminal record dating back to 1991. The record was filed as exhibit 1. Prior to the commission of these offences, he was convicted of firearm offences on four occasions. These convictions took place in 2001, 2003 and 2006. The 2003 conviction was for pointing a firearm. Each time the accused was convicted of firearms related offences he was given a firearms prohibition order. Mr. Baker has convictions for breaching three prior orders. In addition to the other charges to which he has pleaded guilty, Mr. Baker is being sentenced for breaching four more orders. Since his last set of convictions in 2006 Mr. Baker has been in custody, placed on parole, recommitted for breaching his parole, placed back on parole, and recommitted again. The Crown advises that he was actually out of custody for only ten months since 2006. Mr. Baker's criminal record is extensive and contains convictions for a multitude of different offences including sexual assault, trafficking, and possession of stolen property, fail to comply with a recognizance, assault with a weapon, assault police and escape custody. Since 2001 his criminal record contains no less than 12 convictions for various weapons offences.

Personal Circumstances

[5] Mr. Baker is a 38 year-old Canadian citizen. He has a grade 11 education. His family lives in Toronto. Mr. Baker last worked as a labourer in a bed factory. Sadly, his mother was diagnosed with cancer in 2012 and he has assisted her by attending to some of her financial and shopping needs. Counsel also advised that Mr. Baker's life has been adversely affected by the death of his younger brother who was shot to death in 2001. During his arrest for these charges which involved a high risk takedown by the police, Mr. Baker lost three teeth and suffered a knee injury.

Sentencing Submissions

[6] The Crown is seeking a sentence in the range of 13 to 13 ½ years. The defence submits that the appropriate range is in the 6-8 year range.

Mitigating Factors

[7] By way of mitigation I take into account the accused's guilty pleas. Mr. Baker entered his pleas on the date set for the start of his preliminary inquiry and some 10 months after he was charged. While it cannot be said that these were early pleas I do consider them to be a significant mitigating factor. The pleas are an indication of remorse and an acceptance of responsibility on Mr. Baker's part. Also, the community has been spared the costs of a preliminary inquiry and trial.

Aggravating Factors

[8] There are several aggravating circumstances. This is Mr. Baker's fifth firearm conviction and his fourth drug conviction. He has over 30 entries on his record with a total of seven different sets of convictions for similar offences. It is not disputed that Mr. Baker was armed with a loaded handgun in the nightclub he was seen leaving. He possessed MDMA for the purpose of trafficking. As the Crown noted in her submissions, guns and drugs are a potentially lethal combination. He was on three mandatory firearms prohibition orders at the time.

Sentencing Principles

[9] The paramount sentencing objectives in this case are obviously denunciation and deterrence, both general and specific. Mr. Baker and others like him must be deterred. Offences of this nature must be strongly denounced. Gun crimes are a plague on the community and demand strong sentences. The possession and use of handguns in this region is a source of major concern for the community which must be protected from criminals such as Mr. Baker who choose to arm themselves with deadly weapons. Mr. Baker chose to do so in defiance of the prohibition orders to which he was subject. There are several sentencing decisions from every level of court in Ontario which state the above. Mr. Baker chose to possess a loaded firearm despite having been placed on a mandatory firearms prohibition order for firearms three times. Obviously, this sentence must be one that finally brings home a deterrent message to Mr. Baker in the strongest possible terms.

[10] The combination of narcotics and firearms offences is another aggravating factor on sentence. Numerous sentencing decisions submitted by counsel make it clear that the combination of illegal guns and drugs is a toxic one that can lead to fatal and tragic consequences. Here Mr. Baker was in possession of a loaded firearm and observed coming out of a crowded night club while in possession of MDMA for the purpose of trafficking.

[11] Mr. Baker's last set of firearm-related convictions were registered in Calgary. He was sentenced to a total of 9 years which was reduced on appeal to one of 5 ½ years.

The Jump Principle

[12] Counsel for Mr. Baker submits that the "jump principle" is applicable. This principle says that sentences for successive similar offences should be progressively more severe, proceeding incrementally rather than by jumping from a relatively light sentence to one that is dramatically more punitive. In other words, a sentence for an offence should be a "step" up from a sentence given for a prior similar offence, rather than a "jump" up to a significantly more severe sentence: see R. v. Ferrigon, O.J. No 1883 (S.C.J.) at para 8.

[13] Crown counsel submits that the jump principle should not play a significant role in this case because the prospects for Mr. Baker's rehabilitation are extremely poor, given his criminal track record: see R. v. J.G., [2005] O.J. No. 4599 (S.C.J.) at paras. 44-45; R. v. Manning, [2007] O.J. No. 1205 (S.C.J.)

[14] There is no doubt that the accused has squandered every opportunity afforded to him to turn away from his criminal lifestyle thus far. While rehabilitation cannot be ignored as an important sentencing objective, it must play a lesser role than the objectives of deterrence and denunciation. The fact is that aside from Mr. Baker's guilty pleas, there is no evidence of any realistic rehabilitative prospects.

Proportionality and Consecutive Sentences

[15] In fixing the appropriate sentence, the court must have regard to the fundamental principle of proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The offences are extremely serious and Mr. Baker's degree of responsibility is high.

[16] The accused has pleaded guilty to the three separate sets of offences. I agree with the position of the Crown that the possession of the firearm charges, possession of the MDMA charges and breach of the prohibition order sets of charges should all be consecutive to one another. At the same time the court must also have regard to the totality principle set out in s. 718.2(c) that where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.

Mandatory Minimum Sentence

[17] With respect to the drug offence to which he has pleaded, I note that Mr. Baker has been convicted of drug-related offences on three prior occasions: simple possession in 2002, trafficking in a schedule 1 substance in 2010 and possession for the purpose of trafficking in 2011. As a result, Mr. Baker is subject to a mandatory minimum sentence of one year pursuant to s. 5(3)(d) of the CDSA.

Sentence Imposed

[18] Given the circumstances of Mr. Baker, the aggravating and mitigating factors and relevant sentencing principles relevant to this case, I am of the view that a global sentence of 10 ½ years less credit for time served is appropriate. Pre-trial custody is 8 months assessed on a 1:1 basis. Therefore the total sentence to be served is 9 years and 10 months.

[19] Mr. Baker is sentenced to the following:

• Possession of a loaded prohibited firearm s. 95: 5 years and 10 months (after taking into account the 8 months of pre-trial custody);

• Unauthorized possession of a firearm s. 92: 3 years concurrent;

• Possession of a firearm in a loaded vehicle (s. 94(1)): 2 years concurrent;

• Possession for the Purpose of Trafficking in a Controlled Substance s. 5(2) CDSA: 1 year consecutive;

• Breach of a Prohibition Order s. 117.01(7): 3 years consecutive;

• Breach of a Prohibition Order s. 117.01(7): 3 years concurrent;

• Breach of a Prohibition Order s. 117.01(7): 3 years concurrent;

• Breach of a Prohibition Order s. 117.01(7): 3 years concurrent;

There will also be a forfeiture order with respect to the firearm, a DNA order and a s. 109 lifetime weapons prohibition.

Released: March 21, 2014

Justice T. Lipson