Court Information

Ontario Court of Justice

Date: February 22, 2018

Court File No.: Toronto 17-15003472

Parties

Between:

Her Majesty the Queen

— And —

Christopher Reyes

Judicial Officer and Counsel

Before: Justice H. Pringle

Heard on: February 8 and 12, 2018

Reasons for Judgment released on: February 22, 2018

Counsel:

• Gelata Mcloughlin and Kene Canton, counsel for the Crown
• Bella Petrouchinova, counsel for the accused Christopher Reyes

Reasons for Judgment

Pringle J.:

Factual Overview

[1] Back on May 3, 2017, Christopher Reyes lived in a condo at 155 Beecroft. He had recently moved out of his parents' home, where growing up he had the benefit of their love and support. His upbringing was stable. He was a valued employee at an auto service centre.

[2] For reasons I do not entirely understand, given these antecedents, he was also trafficking commercial amounts of cocaine and marijuana. On May 3, 2017, police executed a search warrant on his condo and, inside a safe, located a quantity of marijuana, cocaine, and Alprazolam (Xanax). There were numerous clear plastic baggies for packaging and a small weigh scale near the safe.

[3] Mr. Reyes was being driven home by a friend on the day the search warrant was executed. He had with him, inside his friend's car, a satchel containing a silver 45 mm automatic firearm. It was loaded with seven rounds of ammunition. An eighth round was ready in the chamber. The serial number had been scratched off the gun.

[4] Mr. Reyes' friend pulled into a turnabout in front of the condo and stopped his car. The area was densely populated and it was the middle of the day. Police doing surveillance noted the presence of civilians going about their ordinary business. Upon seeing the vehicle, police called a takedown and arrested Mr. Reyes. His friend was detained. Both were handcuffed and seated on the ground in front of the building.

[5] While searching the car incident to arrest, an officer found the satchel containing Mr. Reyes' gun. It was on the floor of the front passenger side. Upon realizing police had found the satchel, Mr. Reyes immediately claimed ownership of the gun inside it, calling out "It's not my boy's, it's mine". He did this to ensure his friend was not wrongfully arrested for gun possession.

[6] The following day, police executed a search warrant on the defendant's own vehicle. Inside the trunk they found two sealed bags of marijuana and four white pills.

[7] The total quantum of illegal drugs found in this case was:

• 22.7 grams of powder cocaine with a street value of approximately $1840;
• 598.07 grams of marijuana with a street value of approximately $5980;
• 134 tablets of Alprazolam (Xanax), with a street value of approximately $1340.

[8] The defence did not contest the fact that the marijuana and cocaine were possessed for the purpose of trafficking. It was possible that the 134 tablets of Xanax were possessed for trafficking or for personal use. The purpose for Mr. Reyes' gun possession was obvious. He possessed the illegal firearm to facilitate the illegal sale of drugs.

The Guilty Plea

[9] On February 8th, 2018, Mr. Reyes began a preliminary inquiry before me. There were several police officers to be called as witnesses, and we began by hearing from Detective Lipkus, the officer-in-charge. Once his brief evidence was complete, Mr. Reyes met with his counsel over the lunch break and instructed her he wished to plead guilty. Given counsel's confidence in her client's instructions, we heard from none of the several police witnesses remaining on the witness list and adjourned to February 12th for plea and sentencing submissions.

[10] On February 12th, Mr. Reyes pled guilty to one count of Unauthorized Possession of a Loaded Firearm, contrary to section 95(1) of the Criminal Code. Section 95(1) carries a maximum penalty of ten years' incarceration. It used to attract a mandatory minimum sentence of three years' incarceration. This mandatory minimum sentence was struck down by the Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

[11] The sentencing hearing revealed that Mr. Reyes has no criminal record and is now 23 years old. His parents, sister, and former employer have provided favourable support letters. His father attributes his son's criminal misbehavior to associating with the wrong type of friends, noting that before Mr. Reyes moved out of the family home he was the ideal son. Then, as his father described it, his son "lost his way and lost his mind". Realizing their son's lifestyle including drug trafficking and guns has clearly broken his parents' hearts.

[12] Despite that, they have written to offer community support to Mr. Reyes upon his release, because these offences are out of character with the young man they raised. As his father stated:

… I will embrace and encourage him because in the 22 years before this offence, he showed us he is a good person at heart. I remember all the times when my son would visit and stay all night at his grandmother's place caring for her by her bedside, before she passed away. He would get groceries for her and ensure that she was eating and he would take her to the bathroom and later even clean her up. It is unusual for a young man who has sisters to take on that task but Christopher just always rushed there to make sure his grandmother had him by her side. At that time, my wife and I were working 2 jobs each and he was working …. so he went before and after work. My mother passed away knowing she was deeply loved and appreciated by her grandchildren.

Christopher deeply regrets his mistake and will use another chance to improve his life. He talks about the future with hope and positivity.

[13] Similarly, his mother writes:

I strongly believe that my son has made mistakes and is extremely remorseful and will take a second chance to better himself as an individual. I am certain that this is a one-off incident for my son as he will use this as a learning experience from here onwards. Our entire family is taken aback at the situation and will continue to support him in his efforts to better himself.

[14] His parents plan that, when Mr. Reyes is released, he will return to live with them, and his siblings, in his childhood home. His former employer, with knowledge of the matters before the court following a phone call with counsel, has offered him a job upon release.

Applicable Principles of Sentencing

[15] In order for Mr. Reyes' sentence to be fit and just, it must, as its primary purpose, achieve the protection of society. Possession of an illegal firearm, particularly in a dense urban area in the middle of the day, is a very serious offence. That seriousness is amplified by the fact that Mr. Reyes was using that firearm to assist him in trafficking drugs. The sentence must denounce the wrongfulness of his behaviour and address the harm he has done to society by his criminal offending. It must reflect the fact that an offender, in these circumstances, can expect to be separated from society for a substantial period of time.

[16] The evidence of rehabilitative prospects is strong and compelling in the case at bar. Even so, the principle of rehabilitation pales in importance to the need to protect society and to publicly denounce this type of criminal offending. The most significant principles of sentencing guiding me are those of general deterrence and denunciation. If I were to conclude that Mr. Reyes posed little risk to re-offend, his sentence must still deter others of like mind from following down this same path.

[17] Mr. Reyes needs to understand that there is no safe possession of illegal firearms. If he was carrying it loaded, in public, no doubt he was prepared to use it in certain circumstances. Children have been shot in Toronto streets, merely ancillary victims of gang or drug wars they had nothing to do with. Mr. Reyes, being the beloved older brother to his siblings, should have thought about them and children like his siblings, before he made the decision to move about Toronto with a loaded gun. He did not. I am bound, by the appellate courts, to impose an exemplary sentence particularly given the combination of drugs and a handgun. As our Court of Appeal held in R. v. Wong, 2012 ONCA 767 at paras. 11-13:

11 The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

12 These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532.

13 The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[18] It matters not that the drugs and the gun were found in different locations here. Mr. Reyes was obviously in possession of a gun because it made him a more effective drug dealer, or to protect his drug business, or both. There is no explanation that can justify what he did. As Justice Trafford said in R. v. Villella, [2006] O.J. No. 4690 (SCJ) at para. 46:

The importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct such as trafficking in narcotics, where the use of the firearm is possible or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement amongst peers, misguided though they are, by the conventional norms of our society. The possession of a handgun may lead to a random or intentional act of violence, including the death of innocent bystanders in an area of any confrontation. Unforeseen and provocative circumstances can lead to a senseless act of violence and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution, and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as especially serious crimes.

Applicable Range of Sentence

[19] On behalf of the Crown, Ms. Mcloughlin seeks a sentence of three years' incarceration. Ms. Petrouchinova argues for a sentence of between eighteen months to two years. Both parties agree that presentence custody, at 1.5 to 1 credit should be subtracted from the sentence imposed. As of today's date, the defendant has served 270 days or the equivalent of 405 days.

[20] Numerous cases were put before me in support of the parties' positions. As stated previously, the three year mandatory minimum sentence was struck down by our Supreme Court in R. v. Nur, supra. Although I have considered some pre-Nur cases, I found them less helpful in assessing range of sentence, due to the presence of the three year "inflationary floor" binding those sentencing judges.

[21] Post-Nur, the range broadened. Defence counsel provided me with cases where reformatory sentences of 18 months, or conditional sentences of between 18 months to 2 years less a day were imposed: see, for example, R. v. Hussain, 2017 ONSC 4570, [2017] O.J. No. 3906, R. v. Nuttley, 2013 ONCJ 727, [2013] O.J. No. 6040, and R. v. Dalton, [2017] O.J. No. 5810. She did not seek a conditional sentence for Mr. Reyes. I understood her to be demonstrating the breadth of range after Nur for a first offender, and to demonstrate that her position did not fall at the lowest end of the applicable range.

[22] Both parties correctly directed me to Nur, and to McLachlin J.'s observation at para. 82 that:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range – indeed for the vast majority of offences – a three-year sentence may be appropriate.

[23] Ms. Petrouchinova properly acknowledged her client's misconduct, in this case, fell under the rubric of "truly criminal conduct". Clearly, the Crown's position of three years is fit and finds support in Nur. As proof of the individualized nature of sentencing, the defence provided the Court of Appeal judgment in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120, where at para. 109 Doherty J.A. stated:

I am satisfied that a trial judge, properly balancing all the factors, could have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years.

[24] The Crown relied on two other post-Nur decisions, R. v. Mark, 2018 ONSC 447 and R. v. Beals, 2015 ONSC 2911. In Beals, supra, the offender was but 23 years old and a first offender with strong community support. He pled guilty in the Superior Court of Justice. After the vehicle he was a passenger in crashed into a hydro pole, he walked away from the accident scene and left a loaded handgun in a nearby grassy area. The sentencing judge noted that anyone, even a curious child, could have picked up the handgun with tragic results. There was no connection between possession of the gun and drug trafficking or other offences. The offender was sentenced to three years less presentence custody, a fit sentence "for possession of a loaded firearm in public, tossed away where anyone can find it".

[25] In Mark, supra, Campbell J. sentenced a 25 year old first offender to 4 years less presentence custody for possession of a loaded prohibited firearm and quantities of crack cocaine and marijuana possessed for the purpose of trafficking. This "toxic mix" of illegal drugs and a gun were found inside the defendant's vehicle, searched after police observed the driver engage in a hand to hand transaction. The offender pled guilty, in the Superior Court of Justice, but only after unsuccessfully challenging the constitutionality of the vehicle search.

[26] Defence cases, as stated, showed a range from 18 months and up. In R. v. Filian-Jiminez, 2014 ONCA 601, [2014] O.J. No. 3852, our Court of Appeal upheld a sentence of 18 months which was "extremely lenient" but not out of the range. The offender had entered a very early guilty plea in the Ontario Court of Justice. He had a loaded firearm kept for protection in his home, but had turned his life around and repudiated gang membership.

[27] In R. v. Cadienhead, [2015] O.J. No. 3125, Allen J. imposed a global sentence of 2 years less one day for a young male walking down a busy residential street with a loaded gun in his pants, its serial number defaced, while on a probation order prohibiting the possession of weapons. The same day that the offender was caught with this gun, he had earlier been placed on a probation order which included a weapons prohibition. His sentence was quantified as 18 months for the gun possession and 6 months consecutive for the probation breach. This sentence was imposed in the Superior Court of Justice after an unsuccessful application to exclude the firearm from evidence.

[28] Two years was imposed, after a contested jury trial, in R. v. Molin, [2015] O.J. No. 6074. The offender had a sawed off shotgun, serial number defaced, and kept it in a gym bag where it was accessible to children in the residence. He had a youth record for robbery but no prior convictions for weapons, and his rehabilitative prospects were deemed excellent.

[29] In R. v. Doyle, [2015] O.J. No. 4782, Green J. sentenced an offender to 22 months incarceration and probation for possession of a loaded restricted firearm. The sentence was imposed following a guilty plea in the Ontario Court of Justice. The offender's firearm was carried for protection but despite this explanation, Green J. characterized it as a "true crime" since it was carried in a public park and jeopardized the safety of others without legal excuse. The offender also had a dated criminal record which included offences for violence. With some parallel to the case at bar, Green J. noted at para. 29 that:

Unlike Nur, the offender did not try to evade the police. Unlike Nur, he confessed to his criminal conduct immediately following his arrest. Unlike Nur (who, as said by the Court of Appeal, supra, at para. 7, 'did not … admit any of the facts relevant to the allegation beyond those essential to maintaining the plea [and] put the Crown to the strict proof of any … aggravating features'), the offender accepted the entirety of Crown's case upon pleading guilty. Unlike Nur, he has expressed and exhibited genuine remorse.

[30] The distinguishing feature between Mr. Reyes' case and many of the precedents relied upon is, of course, the possession of controlled substances for the purpose of trafficking. Although Mr. Reyes did not plead to any CDSA offence, his counsel properly acknowledged the possession of illegal narcotics must serve to aggravate sentence. To this end, she provided the decision of Wilson J. in R. v. Prosser, 2014 ONSC 6466, [2014] O.J. No. 5291, a case very similar to the case at bar. 18 year old Mr. Prosser had no criminal record and strong community support. Search warrants executed in his home resulted in the discovery of a loaded .25 calibre Lorcin semi-automatic pistol with a detachable box cartridge magazine, 32 rounds of .25 calibre ammunition, 4 rounds of .22 calibre ammunition, 81.78 gm of separately packaged powder cocaine, $3480 cash, and 2 weigh scales. Wilson J. concluded at paragraph 13 that "[t]he evidence clearly supports the conclusion that at the time of his arrest, Mr. Prosser was a drug dealer selling cocaine who carried a gun for his protection."

[31] At paragraph 36 the sentencing judge stated:

The caselaw demonstrates that the governing principles for cases involving guns are deterrence, denunciation, and protection of society. These principles are even more applicable in the context of the explosive cocktail of guns involved with the sale of drugs. However, the principle of rehabilitation still applies, particularly in the case of a young, first time offender with no criminal record.

[32] Ultimately, balancing the principles of sentencing with aggravating and mitigating factors, Wilson J. sentenced him to 2 years of incarceration for the gun, and 6 months consecutive for the cocaine offence. This sentence was imposed mid-trial, after an unsuccessful Charter application and upon an agreed statement of fact where possession was not contested.

[33] Another similar case provided to me was R. v. James and Dawson, [2017] O.J. No. 273. There, the two offenders were convicted, after a Superior Court of Justice trial, of possession of a handgun each, possession of proceeds of crime, and simple possession of 12.84 grams of marijuana. Mr. Dawson was also convicted of possession of 23.47 grams of cocaine for the purpose of trafficking. The street value of the cocaine was approximately $2000. Mr. Dawson had carried a handgun outside of an apartment building when police approached. Attempting to avoid arrest, he disposed of his handgun and cocaine outside in the snow. The other handgun was found in Mr. James' bag, inside a residence. Neither had a criminal record and both had excellent rehabilitative prospects. Both were sentenced to two years less one day and probation. The sentence imposed reflected a reduction for Charter breaches the trial judge found at trial, and restrictive bail conditions in relation to one of the men.

Aggravating Factors

[34] In addition to the paramountcy of general deterrence and denunciation, the evidence establishes aggravating factors that must serve to increase the length of sentence imposed.

[35] The firearm, a restricted firearm, was loaded with 7 rounds and 1 additional round ready in the chamber. The defendant was carrying it on a Wednesday in the middle of the afternoon in a dense residential area, in a vehicle and ready for use if the need arose. The circumstances surrounding the possession established a significant risk to the public. The serial number was defaced. There was, as previously referenced, commercial amounts of cocaine and marijuana discovered in his apartment, as well as Xanax which may or may not have been for personal use. The purpose underlying the firearm possession was, obviously, to further Mr. Reyes' career in trafficking marijuana and cocaine.

Mitigating Factors

[36] There are also factors which mitigate sentence. Mr. Reyes has no criminal record. The community support he is lucky to enjoy will envelop him upon release. He was a valued employee, a good son, a loved brother. I have to temper these facts with the observation that he was able to carry on this secret life of a gun-toting drug dealer while he enjoyed this same community support. However, it is of import that Mr. Reyes did not run afoul of the law while he was living under his parents' roof.

[37] Like the offender in Doyle, Mr. Reyes was entirely cooperative with police and, in fact, immediately confessed to try and avoid the wrongful arrest of his friend. This is an unusual circumstance, not present in any of the cases I reviewed except Doyle, and I find it extremely mitigating. It is telling, in my opinion, of Mr. Reyes' character and corroborates my conclusion that his rehabilitative prospects are strong.

[38] Finally, the other circumstance not present in most of the cases presented to me is the fact that Mr. Reyes pled guilty, at an early stage, in the Ontario Court of Justice. The question of how much mitigation an early guilty plea should attract was carefully analyzed by Cole J. in R. v. Ismael, 2014 ONCJ 136. In Ismael, the offender had pled guilty to possession of a loaded prohibited firearm a few weeks prior to his scheduled preliminary inquiry. After reviewing British and Canadian sentencing authorities on the question of why an early guilty plea reduces sentence, Cole J. observed at paras. 21 through 26:

Perhaps this lack of judicial consensus as to the rationale(s) for reducing a sentence following a plea of guilty explains why there does not seem to be much consistency in Canadian judicial views as to what amount of credit should be allowed following a guilty plea entered at a relatively early stage in the proceedings. I have found the approach taken in a 2007 "Definitive Guideline" developed by the English Sentencing Guidelines Counsel (SGC) to be of considerable assistance in this regard. I first note that a portion of the Statement of Purpose makes it clear that such mitigating factors as may exist should be 'address[ed] separately… before calculating the reduction for a guilty plea (s. 2.4). That makes much analytical sense to me, and I now apply it to the case at bar….

…..Since 2003 the English Criminal Justice Act has provided statutory guidance to sentencing judges:

1. In determining what sentence to pass on an offender who has pleaded guilty to an offence ... a court must take into account:

(a) The stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) The circumstances in which this indication was given.

To complement the statutory enactment, the SGC has articulated a very utilitarian rationale for applying the reduction principle. Once the mitigating factors have been considered and applied, the Guideline makes it clear that the guilty plea reduction 'derives from the need for the effective administration of justice and not as an aspect of mitigation' (s. 2.2). The Council writes:

"A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gaps between the charge and sentence, saves considerable cost, and, in the case of an early guilty plea, saves victims and witnesses from the concern about having to give evidence". (s. 2.2.)"

The Guideline then contains a formula for applying the reduction principle, the portions most relevant to the case at bar being:

4.1 The level of reduction should be a proportion of the total sentence imposed, with the proportion calculated by reference to the circumstances in which the guilty plea was indicated, in particular the stage in the proceedings. The greatest reduction will be given where the plea was indicated at the "first reasonable opportunity".

4.2 ….the level of the reduction will be gauged on a sliding scale ranging from a recommended one third (where the guilty plea was entered at the first reasonable opportunity in relation to the offence for which sentence is being imposed), reducing to a recommended one quarter (where a trial date has been set) and to a recommended one tenth (for a guilty plea entered at the 'door of the court' or after the trial has begun.

Allowing for differences in criminal procedure between Canada and England I can see no good reason in principle for departing from this formula in deciding what amount of credit should be given to Mr. Ishmael for his plea of guilty. In the case at bar, I agree with Crown counsel that because Mr. Ishmael's plea was not entered until after preliminary inquiry dates were set, therefore his "penetration" into the justice system has been greater than an offender who "pleads out" at the earliest possible opportunity….In my judgment, to that extent, the offender's decision to enter his plea of guilty some weeks in advance of the dates set for the preliminary inquiry is one which entitles him to some considerable reduction in sentence, albeit not at the maximum level.

[39] Justice Cole ultimately concluded that "a reduction of one quarter of the otherwise merited custodial sentence of two years less a day is appropriate in this case" and sentenced Mr. Ismael to 18 months in custody. His thorough, thoughtful decision has caused me to approach the issue of mitigation or reduction, as a result of a guilty plea, somewhat differently than I otherwise may have.

[40] When I applied the principles of sentencing in section 718 of the Criminal Code, and weighed the aggravating and mitigating factors – except for the plea of guilt – I found the facts before me merit a sentence of two years and six months incarceration. I arrived at this conclusion having particular accord to the fact that Mr. Reyes is a first offender with strong rehabilitative prospects, but also that this loaded firearm was carried in public and was being used to traffick the commercial amounts of marijuana and cocaine found.

[41] Having regard to the plea of guilt entered at the commencement of the preliminary inquiry, however, I am imposing a sentence of two years' incarceration, less presentence custody, upon Mr. Reyes. This was an early guilty plea, as fairly acknowledged by the Crown. We briefly heard from only one of several police witnesses before Mr. Reyes instructed counsel he wanted to plead guilty. From that brief testimony, I could discern there were triable issues Mr. Reyes would forego by pleading. For example, the building surveillance tape that captured Mr. Reyes' arrest, and that was watched by police twice before disappearing from police custody without a trace, would have been an intriguing triable issue.

[42] In addition to the custodial period, I am also going to place Mr. Reyes on a period of probation following his release from custody. This portion of the sentence, albeit non-custodial, will continue to serve the principles of sentencing including general deterrence and denunciation. A probation order still restricts a person's liberty and freedom, just to a lesser extent than jail. Most importantly, a probation order will protect the public by ensuring that Mr. Reyes' strong rehabilitative prospects evolve into true rehabilitation.

Sentence

[43] On the single count pled to, I am sentencing you to two years' incarceration less presentence custody. The presentence custody, as of today's date, is 270 real days which I credit as the equivalent of 405 days of presentence custody served (1 year, 1 month, 10 days), leaving you 324 days (10 months, 2 weeks, 5 days) left to serve.

[44] I am also sentencing you to a one-year term of probation. The conditions of that probation order will be to keep the peace and be of good behavior; to appear before the court when required to do so; to notify your probation officer of any change in name, address, or employment; to report to probation within one week of your release from custody and thereafter as required; to reside at an address approved of by your probation officer; to seek and maintain employment or attend school; and not to possess any weapons as defined by the Criminal Code.

[45] Pursuant to section 487.051(3), I am ordering you to provide a sample of your DNA. This order issues on consent and rests on my finding that it is in the interests of justice to do so, given the nature and circumstances of this offence outweigh your privacy and security interests. I have signed the forfeiture and return orders drafted on consent of both parties. I am ordering you prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life pursuant to section 109(2)(b), and pursuant to section 109(2)(a), prohibiting you from possessing any firearm other than a restricted or prohibited firearm, any crossbow, any restricted weapon, ammunition, or explosive substance for a period of 10 years.

[46] Finally, I am indebted to both Crown and defence counsel for their excellent preparation and submissions in this matter.

Released: February 22, 2018

Signed: Justice Heather Pringle