Court File and Parties

Court File No.: 15-576 Date: January 16, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kenyon Ighodaro Ohamu

Before: Justice Sharman S. Bondy

Delivered Orally: January 9, 2017

Counsel:

• Mr. Manarin, for the Crown
• Ms. Strain, for the Accused

Reasons for Sentence

1. Introduction

[1] The Accused, Kenyon Ighodaro Ohamu, pleaded guilty to possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code and unlawful possession of a firearm while prohibited from doing so contrary to s. 117.01 of the Code. The Crown has proceeded by indictment. The following are my reasons for sentence.

2. The Issues and Position of the Parties

[2] The Crown's position is that Mr. Ohamu should receive a penitentiary term of three years less his pre-sentence custody, relying on appellate rulings in R. v. Nur 2015 SCC 15 and R. v. Marshall 2015 ONCA 692. The Crown seeks a further consecutive term of custody for the breach of the prohibition order. The Crown also seeks a s. 109 order for life, a term of probation, a forfeiture order for the gun and a DNA order.

[3] The defence does not dispute the orders but contends that a fit sentence should be time served with one further day's custody given what the defence asserts is a largely positive pre-sentence report, the accused's youth and his ability and willingness at rehabilitation.

3. The Facts

[4] On April 1, 2015 the Windsor Police Drugs and Guns Unit was granted a CDSA warrant in connection with apartment 304 located at 668 Wyandotte Street in Windsor, Ontario. Entry to the premises was commenced at eight o'clock p.m. that day. Inside the premises were located a number of individuals and a number of drugs.

[5] At 8:07 p.m. and in the course of executing the warrant, a taxi arrived at the same location, namely, 668 Wyandotte Street. The accused and three other males were inside that cab. One other of the males had possession of a firearm, namely a Ruger 357 Magnum revolver with six rounds of ammunition loaded in it. The accused exited the taxi, fled on foot and engaged in a foot chase with a Windsor police officer. During the chase, the accused was observed throwing a black handgun on or about the 700 block of Tuscorara Avenue. Eventually the accused was detained and arrested and the handgun was recovered. The facts describe it as a Springfield Armoury 9 mm. handgun loaded with eight rounds of live ammunition.

[6] At the time of this arrest, the accused was subject to interim terms of release relating to other criminal charges and subject to the condition that he not possess any weapons.

4. The Accused's Antecedents

[7] As of December 13, 2016, Mr. Ohamu's pre-sentence custody time has been calculated at 392 actual days. Until today's date he has remained in custody and accumulated another 27 days pre-sentence custody, so that his total pre-sentence custody time is 419 days. On an enhanced 1 to 1:5 basis that amounts to 628.5 or 629 days rounded up, or approximately 21 months of pre-sentence custody.

[8] Mr. Ohamu is a Canadian citizen. He was born and raised in Toronto and is 20 years of age. He is not a first time offender. As a young person he was convicted of robbery x 2, possession of property obtained by crime, failure to comply x 2 and failure to attend court. As an adult offender he has been convicted of failure to comply with terms of three recognizance orders and a drug offence. He has a history of re-offending while subject to community supervision. His pre-sentence report describes him as minimizing his past behaviour and failing to take responsibility for his previous offences.

[9] According to his pre-sentence report, as a child the accused was raised in a dangerous Toronto neighborhood with many incidents of gun violence. He has witnessed gun violence, a stabbing, gang violence and activities. He denied being a member of a gang. He moved back and forth between his parents' homes. He is close to his mother who provides emotional support provided he changes his ways. He has no relationship with his father and the one with his brother is strained. He has a steady girlfriend since late 2015. His peers are linked to the drug sub-culture as well as known to the criminal justice system. They appear to have a negative influence on him. The defendant has not completed schooling, but while detained has completed 18 high school credits. He has never ever been employed.

[10] The defendant likely has a substance abuse problem. He first consumed alcohol at twelve years of age. He conveyed that until his latest arrest in January 2016 he was consuming excessive alcohol and marijuana daily. He also started to use Methylenedioxy-methamphetamine, or MDMA. He has never attended counselling or treatment for substance abuse and considers his drug use recreational and not problematic. While on bail he increased his consumption of alcohol and drugs.

[11] His report reveals the defendant claims he has serious mental health problems; he is experiencing, according to him, auditory and visual hallucinations and periods of paranoia. These claims are not corroborated by a psychiatric report. A recent referral to the Canadian Mental Health Association has been made. His goal is to engage in an assessment with a psychiatrist, upon release from custody. He also seeks to complete his high school diploma and gain employment.

[12] On the whole, the defendant's pre-sentence report is not a positive one. There are positive aspects to it such as the defendant completed 18 high school credits while serving time in pre-sentence custody, has completed in-custody anger management, problem solving and resume writing programs and his mother is willing to help him if he mends his ways.

5. Analysis of the Law

[13] Possession of a loaded operable hand gun is a very serious crime. When s. 95 offences were first introduced by Parliament, the offence carried a one year minimum sentence if the Crown proceeded by indictment and a one year maximum if the offence was proceeded with summarily.

[14] In the trial ruling of R. v. Nur 2011 ONSC 4874 Code J. undertook an extensive analysis of the range of sentences for conviction of a first offence of possession of a loaded handgun, when there were no additional convictions, such as for drug offences, for the period between 1998 and May 1, 2008. The date of May 1st 2008 became relevant as this is when Parliament increased the minimum term of imprisonment to three years for a first offence and five years for a subsequent offence if the Crown proceeded by indictment relating to a s. 95 offence. S.C. 2008, c. 6, s. 8.

[15] Justice Code concluded that the range for such sentences between the dates I mentioned was between two years less a day and three years' imprisonment. The bottom end of the above range he found, was generally reserved for youthful first offenders with good rehabilitative prospects who plead guilty, and the higher end of the range was generally reserved for offenders with prior records who proceeded to trial (See paragraph 44 of trial judgment in R. v. Nur).

[16] Although pre-2008 offences had a minimum sentence of one year as an inflationary floor, Code J. noted that the proliferation of handguns had increased, homicides involving handguns had increased and the justice system had responded to public alarm by stiffening its approach to sentencing in cases involving handguns after 2005. (See paragraph 49). Deterrence and denunciation was the priority in sentencing, even in the case of young first offenders.

[17] For these reasons, he considered that for Mr. Nur he would have awarded a sentence of two-and-a-half year's imprisonment prior to the 2008 reforms, and thereafter given the three year stationary minimum as an inflationary floor, he awarded a period of imprisonment for 40 months.

[18] Even as Nur was subject to appellate review (2013 ONCA 677; 2015 SCC 15) on the question of the constitutionality of the three year minimum sentence for s. 95 offences where the Crown had proceeded by indictment, Justice Code's determination of a fit and proper sentence for Mr. Nur remained intact and his factual findings remained intact. Justice Doherty of the Ontario Court of Appeal found that those offences at the true crime end of the s. 95 spectrum, such as those individuals who have loaded restricted or prohibited firearms 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. He found that Mr. Nur, independent of the mandatory minimum and despite his mitigating circumstances, could have received a sentence of three years (paragraph 206 of Court of Appeal judgment in Nur).

[19] Justice McLachlin, speaking for the majority of the Supreme Court agreed with this sentence recommendation. She found that despite the fact that the 2008 reforms to s. 95(1) cast a net over a wide range of potential conduct, that most cases within the range may well merit a sentence of three years of more. She adopted the language of Justice Doherty that at one end of the range was the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. And for these persons, and for the vast majority of offences, a three year sentence she said, was appropriate (paragraph 82 of SCC judgment in Nur).

[20] Many of the cases referred to in defence counsel's brief of authorities precede Nur's findings. (R. v. Williams 2011 ONSC 3914; R. v. Brown [2006] O.J. No. 4681 (S.C.J.); R. v. Thompson 2007 ONCJ 342; R. v. Newman [2003] O.J. No. 5574 (S.C.J.); R. v. Allen [2006] O.J. No. 4597 (S.C.J.); R. v. Ali 2008 CarswellOnt 7764 (S.C.J.)). Appellate review of R. v. Smickle 2013 ONCA 678 found that the one year conditional sentence imposed by the trial judge was manifestly inadequate. In Smickle when the police executed a search warrant in an apartment unit on the 15th floor of a high rise apartment building in Toronto and a young man was holding a loaded cocked handgun, namely a Colt 25 calibre semi-automatic handgun, the Court of Appeal did not characterize his possession as merely playing with it; they found his conduct fell squarely at the true crime end of the s. 95 spectrum as described in Nur. A sentence approaching or at the maximum reformatory sentence (two years less a day) was recommended absent the mandatory minimum sentence. Justice Doherty found that Mr. Smickle demonstrated a wanton or reckless disregard for the lives and safety of others. The public and the police were clearly put at risk by his conduct. Leroy Smickle was 27 years of age at the time of his offence, with no criminal record, with a history of employment, family support and described as having a quite positive pre-sentence report.

[21] Of the four remaining cases referred to by defence, all of which were decided prior to the SCC ruling in Nur all can be distinguished on their facts and circumstances. In R. v. Filian-Jimenez 2014 ONCA 601 in a short endorsement the court of appeal approved the trial judge's granting of a 18 month sentence for an early guilty plea, where the respondent repudiated his membership in a gang, sought employment and fundamentally changed his lifestyle. He had possession of a loaded firearm because shots had been fired at his house and he used it for protection for himself and his mother. The court noted that the sentence was very low but did not find it was manifestly unfit. This endorsement is so brief and the factual underpinnings so undeveloped, it is difficult to derive any solid conclusions from this ruling save and except the Court was not inclined to disturb the trial judge's sentence recommendations, notwithstanding their leniency.

[22] In R. v. Cadienhead [2015] O.J. No. 3125 (S.C.J.) the accused was a young 20 year old youth arrested while carrying a loaded handgun in the vicinity of an area troubled with street crime and drug dealing. He gained a record for theft and the prohibition order the very day of his arrest on the loaded handgun charge. The court awarded a 24 month period of incarceration in total, 18 months on the loaded handgun and 6 months on the breach of his no weapons provision in a probation order. The Court was mindful of the Ontario Court of Appeal ruling in Nur and the need for principles of deterrence and denunciation in imposing sentences for firearms offences. The court considered it an aggravating factor that the accused brashly breached his probation order the very same day it was imposed. He was carrying a loaded firearm in public; on a residential street, in his underwear; being loaded suggested an intention that the firearm would be put to use, if not by the accused, then by someone else. The accused had a minor criminal record, had expressed remorse, had a tragic life where his parents were both deceased when he was two years of age and the court found no evidence of substance abuse. The court found the accused's anxiety had made him make bad choices.

[23] In R. v. Ishmael, 2014 ONCJ 136, the circumstances of locating a loaded firearm from a youthful offender with no criminal record are somewhat similar to the Smickle case. A prohibited firearm, a Taurus .45 calibre semi-automatic pistol was discovered in the accused's bedroom drawer with 10 rounds in the magazine. The police had acted on a search warrant at the apartment where the accused lived with his brother and parents. The Court was mindful of the Ontario Court of Appeal's ruling in Nur, the need for denunciatory sentences with s. 95 offences and remarked that most s. 95 offences would result in penitentiary terms, even for first time offenders. The court awarded an 18 month term of imprisonment noting that Ishmael was different from Smickle as this was a guilty plea, with a lack of criminal antecedents with future rehabilitative prospects for the accused.

[24] In R. v. Brown 2013 ONSC 4230 the Court engaged in a detailed analysis of Justice Code's trial ruling in Nur, particularly noting that s. 95 offences which predated the 2008 reforms and the minimum mandatory regime generally resulted in a range of two years less a day and three years' imprisonment, with the bottom end of the range generally reserved for youthful first offenders with good rehabilitative prospects who plead guilty. He was mindful of the important principles of deterrence and denunciation which must take precedence in cases involving the possession of a loaded handgun, was satisfied that Mr. Brown had loaded the gun found on him following a search incident to arrest in connection with his purchase of crack cocaine as well as having been the victim of a shooting that resulted in the loss of his eye. Mr. Brown was 27 years of age at the time of his offence, he was stopped by police in connection with a "tinted windows" and car insurance offences, a search following arrest revealed crack cocaine in the rear of his vehicle, and a loaded .38 calibre revolver protruding from his jeans, with a black folding pocket knife protruding from another jean pocket. Mr. Brown testified at trial, his explanation was rejected, he had no criminal record, had limited job prospects and showed no remorse. The court awarded a global sentence of three years less credit for any pre-trial custody. What was especially aggravating to the court was his immediate accessibility to the firearm, that he was driving on a public street at a busy time, he was on his way to an elementary school to pick up his son, the risk he posed to everyone, including the officers who arrested him, and his possession of cocaine as well as a firearm. Notwithstanding all of these antecedents, Mr. Brown's rehabilitation seems to have played a part in keeping his sentence at only three years given he had no prior record, was in a stable relationship, took care of his son, had the support of family and was the victim of gun violence himself.

[25] Crown counsel argued that R. v. Marshall 2015 ONCA 692 accepted with approval the findings in Nur and to repeat, where offences are at the true crime end of the s. 95 spectrum they should receive exemplary sentences that emphasize denunciation and deterrence. In Marshall the court approved the findings in Nur that "where individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or any time and who are engaged in criminal conduct or conduct that poses danger to others they will still attract such sentences (i.e. three year terms), regardless of the constitutionality of the three year minimum sentence" (para 206). Marshall was a youthful offender with no record, was enmeshed in the world of drugs, was in possession of a prohibited loaded handgun where drug deals were occurring, several individuals were also present, the potential for violence was high and after trial the judge found that Mr. Brown left the loaded handgun at the co-accused's apartment while he and his girlfriend went out for lunch.

[26] The Court went on to say that despite the fact that courts should impose a short as possible sentence in cases involving a youthful, first time offender, which Mr. Marshall was, that his sentence must be consistent with relevant sentencing principles, including proportionality to the gravity of the offence. A sentence of three-and-a-half- years was imposed for an offence that the court found was on the true crime end of the s. 95 spectrum.

6. Governing Sentencing Principles

[27] According to s. 718 of the Code, the "fundamental purpose" of sentencing is to contribute 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:

(a) To denounce unlawful conduct;

(b) To deter the offender and other persons from committing offences;

(c) To separate offenders from society, where necessary;

(d) To assist in rehabilitating offenders;

(e) To provide reparation for harm done to victims or to the community; and

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[28] According to s. 718.1 of the Code the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[29] Section 718.2 of the Code states that in imposing a sentence, the court must take into consideration the following principles:

(a) A sentence should be increased or decreased to account for any relevant aggravating or mitigating circumstances relating to the offence of the offender;

(b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[30] I have also turned my mind to s. 742.1 (a) of the Code and I find that a conditional sentence of imprisonment, although technically available, is not appropriate given the defendant's history of breaching court orders.

[31] The aggravating factors in this case include the following:

1. The accused exited a cab which approached a residence which was the subject of a CDSA warrant and fled from police authorities engaging thereafter in a foot chase;

2. The firearm was immediately accessible to the accused who was either carrying it in one or both of his hands or on his person as he fled;

3. The firearm was not licenced to the accused and it was loaded with eight rounds of live ammunition;

4. The accused threw the loaded firearm onto the street, a public thoroughfare in the course of the police chase;

5. The presence of the gun potentially endangered the lives of everyone with whom the accused came into contact, on the street and the officers who engaged in the foot chase;

6. One other person in the cab with the accused was also in possession of a loaded firearm, namely a Ruger 357 Magnum with 6 rounds of ammunition loaded in it;

7. The accused was the subject of an interim release order prohibiting him from possessing any firearms or weapons at the time of this offence;

8. There was no suggestion that the accused was a regulatory offender on the far non risk end of the s. 95 crime spectrum;

9. I do not know when and/or how the accused came into possession of the loaded firearm nor should I engage in impermissible speculation as to why he was, where he was, when he was. However, I think it is a reasonable inference to draw that at the very least he was up to no good with the possession of a loaded weapon;

10. The firearm being loaded suggests an intention that the firearm would be put to use, if not by the accused but by someone else;

11. The accused is not a first time offender before the court. He has previous crimes of violence (i.e. robbery), multiple breaches and possession of a controlled substance; and

12. His pre-sentence report is overall not a positive one. He has breached multiple orders while serving terms of probation. He has minimized his past offences and failed to take responsibility for them. He suffers from a substance abuse problem, has never attended counselling or treatment and considers his drug use, albeit daily consumption of marijuana and alcohol, as recreational and non-problematic. As noted in his pre-sentence report his peers are involved in the drug subculture and they are well known to the criminal justice system. They have a negative influence on him.

[32] In terms of mitigating factors, the accused is a still a very young man, only 20 years of age. He was 18 years of age at the time of the commission of these offences. He has the support of his mother, but that relationship is tenuous as he must mend his ways. He has no father-son relationship and his brother's is strained. In his youth and past he has been exposed to gun and gang violence, shuffled back and forth between his mother and father's houses following their separation as a child, and was raised in a dangerous Toronto neighbourhood with many incidents of gun violence. He provided the court with a guilty plea, but not an early one. His plea was tendered several months thereafter and after committal to trial following a preliminary inquiry. He may have serious mental health issues but they are largely undiagnosed and untreated. While serving time in pre-sentence custody he has, to his credit, taken some tenuous steps at improvement, finishing impressively 18 high school credits and in-custody programming for anger management and problem solving.

[33] He is remorseful, has expressed this to the court and wants to better himself; insisting he can change.

[34] His offences at this time are not tied directly to a drug conviction or the world of drugs. That is not a permissible inference that I can draw and I am not inclined to do so.

[35] Deterrence and denunciation are indeed paramount principles and any sentence for the accused should be exemplary as the case law provides, but the question becomes what end of the true crime end in the spectrum of s. 95 offences does he fall? I am not satisfied that the accused can be said to be one of those offenders who, at least on the evidence before me, is enmeshed in the drug culture as in Marshall where a loaded handgun was used in connection with the sale and transacting of drugs. I think it might fairly be said that he seems to be on the cusp or crossroads of that world and is influenced by others in that world, but it cannot be said that on the facts before me that his offence involved that activity or that drugs or other concealed weapons were found on his person, as in Brown.

[36] On the other hand, he is indeed at least in the middle to end of the s. 95 crime spectrum; one of those individuals who Justice Doherty in Nur says has no business whatsoever possessing a loaded restricted or prohibited firearm anywhere and at any time, who are engaged in some sort of criminal conduct or whose conduct poses a danger to others. The accused's loaded handgun was not found secreted in a drawer as in Ishmael or fully cocked and ready to fire in a private apartment as in Smickle. Instead, his conduct engaged police authorities in a chase, he fled away, his gun was capable of firing and his actions not only exposed the police to danger but the public and community at large. Moreover, he brashly defied a condition to his bail terms that he not possess any such weapons or handguns. This is a specific aggravating factor.

[37] There is no doubt that deterrence and denunciation are the guiding principles in connection with a s. 95 firearms offence. Rehabilitation cannot however be overlooked. Moreover, as the case law demonstrates, sentencing is an individual case-specific process that requires the assessment of many factors in order to determine the most appropriate sentence in the circumstances. I think a term of 2 years 6 months totaling 30 months is in order having considered the case authorities, the mitigating and aggravating circumstances of the accused's offence, the poor results of his pre-sentence report, his substance abuse issues, his late guilty plea and his criminal antecedents. But he is still very young, he appears to have begun the process of appreciating the consequences and errors of his way, his time in pre-sentence custody has been put to good use, he is remorseful, he is seeking treatment for his mental health issues and he has a mother who is willing to help him. Moreover, specifically, on the facts before me, I am not aware that the accused was involved in drug activity at the time of this offence nor were any drugs recovered from him and I should not draw those conclusions from the evidence before me. I think Crown counsel put it best when he described it as "he was up to no good".

[38] As for the breach of the firearms condition of release, there shall be an order of 30 days' custody, to be served concurrently with the firearms count.

[39] After giving credit then for the 21 months of pre-sentence custody he has served, the accused will serve a further 9 months' custody. Upon his release, there will be an order for 2 years' probation upon terms as delineated in the pre-sentence report. A s. 109 order shall issue for life. There shall be an order for the collection of the accused's DNA relating to count number 15, the firearms count. There shall be an order for forfeiture of the seized handgun and ammunition pursuant to s. 491(1)(b) of the Code.

Written Reasons Released: January 16, 2017

Sharman S. Bondy Justice