Ontario Court of Justice

Date: 2018-09-20

Court File No.: Toronto 4817 998 17-75002165

Between:

HER MAJESTY THE QUEEN

— AND —

BRANDON LESLIE MORGAN

Before: Justice Rick Blouin

Guilty Plea: January 17, 2018

Submissions heard: March 22, July 16, and September 10, 2018

Reasons for Sentence released: September 20, 2018

Counsel:

• Mr. Gabriel Ho — counsel for the Crown
• Mr. Tony Paas — counsel for the defendant Brandon Leslie Morgan

BLOUIN, J.:

Background

[1] On May 6, 2017, around 11 p.m., two uniformed officers recognized the defendant entering a bar in downtown Toronto. The police officers received information from the cruiser computer which indicated the defendant had a bail release with a 9:30 p.m. – 6 a.m. curfew. The defendant was leaving the bathroom when the police told him he was under arrest for the recognizance breach. The defendant backed away. When the police tried to stop him, all three fell to the ground. Mr. Morgan refused to raise his hands and pulled them toward the front of his waist where one of the officers saw the handle of a firearm tucked. After a struggle for a few minutes, the defendant was handcuffed. The handgun was a prohibited .45 calibre, semi-automatic, loaded with five bullets, one of which was in the chamber of the gun. He was on two bail releases, both of which included terms prohibiting possession of weapons, and the above-mentioned curfew.

[2] On January 17, 2018, the defendant entered a guilty plea on the first day of a three-day trial to possession of a loaded prohibited firearm (s. 95 of the Criminal Code) and to possession of a firearm while prohibited by court order (in this case a bail condition). These trial dates were set in July, 2017 when the defendant was in custody. He did not make application for bail until November, 2017.

[3] On November 10, 2017, the defendant was released on a $5,000 surety bail before a judge of the Ontario Court of Justice (not me). The Crown did not apply to cancel his bail when he entered a plea on January 17 but, shortly thereafter, his surety made application for relief. The defendant turned himself in to police on February 9 and a bail hearing was conducted before me on March 22.

[4] This time the Crown argued for detention. I ruled that although I may not have released him in November, 2017 because of the tertiary ground concerns, he had not breached the bail conditions since that release. Mr. Morgan had a viable release plan which included work prospects and a strong surety. Because he surrendered to police and had not contravened his bail conditions, I re-released him on another surety bail with stricter house arrest conditions, which significantly restricted his liberty.

Position of the Parties

[5] Mr. Ho submits that the defendant should receive a penitentiary sentence of 2.5 years. He agreed that the defendant should receive credit for the 200 days he spent in detention before his guilty plea, with a further 1.5 credit pursuant to R. v. Summers. That pre-trial detention credit would then equal 300 days. In addition, he should receive some credit for house arrest pursuant to R. v. Downes. When the credit is applied (65 days), the defendant should be incarcerated for a further 1.5 years followed by maximum probation. He maintains his position is at the lowest end of appropriate sentences.

[6] Mr. Paas submits that a maximum reformatory sentence of two years less one day is the appropriate justice. Because Mr. Morgan spent a significant amount of time in pre-trial detention, I should, when examining the defendant's current stable position, impose a conditional sentence for the remainder of the sentence.

Aggravating Factors

• The defendant possessed a loaded prohibited semi-automatic firearm in a busy downtown bar on a Saturday night.

• The defendant struggled with the officers upon arrest and moved his hands towards the front of his waist where the gun was positioned.

• The defendant was on two bail releases with terms regarding weapons.

• The defendant was violating a curfew on both of those bails.

• The defendant was on bail for drug trafficking. He was eventually sentenced to six months custody on May 25, 2017 (three weeks after these offences).

• The defendant was arrested for a serious violent offence and disobeying a house arrest condition while awaiting the sentencing. The Crown appears to have a strong case on these new charges.

Mitigating Factors

• The defendant pleaded guilty. However, it must be considered that the plea was entered on the first day of a trial in the face of a seemingly strong Crown case.

• The defendant is young (21 at the offence date).

• The defendant had a minimal criminal record (a conditional discharge on a theft under).

• The defendant has connected to Youth Employment Services (YES). Through YES he completed a placement at a car detailer and the employer offered him fulltime work (see Exhibit 5 and Exhibit 9).

• Exhibit 5 was a letter dated July 12, 2018, from Mark Dennis, a counsellor with YES, stating that Mr. Morgan was extremely punctual and committed to the program. He was described as honest, respectful and "employment ready".

• The defendant has strong support from his girlfriend who signed bail for him and lives with him.

• The defendant has abided by a strict house arrest (with limited attendance at work, probation and programs approved by probation) from March 22, 2018 to August 28, 2018.

• The defendant was also subject to a house arrest with more liberal exceptions for approximately three months from November 10, 2017 to February 9, 2018.

• A detailed and thoughtful apology letter (Exhibit 6).

• The defendant's unfortunate background (foster homes at 13) and mental health diagnosis (mild intellectual disability at 18) – see PSR (Exhibit 6).

The Law

[7] Mr. Ho produced a casebook with dozens of higher court decisions regarding the appropriate sentence. An index of those cases argued was made Exhibit 8. Mr. Paas provided cases that involved loaded prohibited firearms that attracted conditional sentences (R. v. Nuttley, 2013 ONCJ 727; R. v. Dalton, 2018 ONSC 544; R. v. Ali (re: Quidayan), 2012 ONSC 7013; R. v. Hassan, 2017 ONSC 4570). Dalton and Hassan were cases that post-dated the seminal case in this area of R. v. Nur, 2015 SCC 15. I have looked at all these cases.

[8] I also found helpful a recent decision of my colleague Pringle, J. (R. v. Reyes, 2018 ONCJ 185) who grappled with similar sentencing principles in a fact situation that was not dissimilar to this one. Justice Pringle extensively chronicles the applicable principles of sentencing and the range of sentence in paragraphs 15-33. The sentencing range is best laid out in paragraphs 21 and 22, and bears repeating here:

[21] Post-Nur, the range broadened. Defence counsel provided me with cases where reformatory sentences of between 18 months to 2 years less a day were imposed: see, for example, R. v. Hussain, 2017 ONSC 4570, R. v. Nuttley, 2013 ONCJ 727, and R. v. Dalton. 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.

[9] Mr. Paas produced two post-Nur Superior Court sentencing decisions that looked at the usual range of sentence for cases like this, but concluded that sentencing is a highly individualized process wherein a conditional sentence was appropriate in extraordinary circumstances (R. v. Dalton and R. v. Hassan).

Recent Developments

[10] I was initially scheduled to provide my sentencing decision on September 12, 2018. However, in late August, I was informed by Counsel that the defendant had been returned to custody on new charges which included aggravated assault, fail to comply probation, and fail to comply recognizance (house arrest). Mr. Ho provided this Court with a sworn, cautioned audiotaped statement of a complainant (Patrick Gales, the defendant's original surety on the gun charges) which outlined an attack by the defendant with a sword that caused significant injuries – Exhibits 11 and 12. In addition, he provided a summary of the three offences outlined above from August 25, 2018 (Exhibit 10(a)) and some other less serious charges alleged while he was in custody (Exhibit 10(b)). Regarding the aggravated assault count, and the breach of the house arrest I imposed in March, the Crown provided not only the statement of the complainant, but a summary of the evidence of two additional witnesses that confirmed the complainant's statement. In addition, the photographs (Exhibit 11) demonstrate a significant wound to the nose and face of the complainant.

Conclusion

[11] Even before the recent arrest while on bail awaiting this sentence decision, it was almost impossible to conclude the characterization of the defendant's conduct on May 6, 2017 as anything other than truly criminal conduct that poses a real and immediate danger to the public as outlined in Nur. As Justice Doherty wrote in the Ontario Court of Appeal version of that case, at one end of the range of sentences for s. 95 offences "stands the outlaw who carries a prohibited or restricted firearm in public places as a tool of his or her criminal trade. At this end of the range, three years in jail may be the appropriate sentence in a vast majority of cases." This is one of those cases. In my view, the sentence sought by the Crown is at the lower end of the appropriate range and recognizes the significant work done by the defendant to find work and stability while on bail. For that reason, and the guilty plea, I will not exceed the 2.5 years position taken by the Crown.

[12] A conditional sentence is not available in this case because the appropriate sentence exceeds two years, and I believe that community safety would be endangered by allowing this sentence to be served in the community. Accordingly, the sentence today will be 1.5 years when the pre-trial custody (300 days) and house arrest credit (65 days), which totals one year is subtracted. I am of the view that the Downes credit submitted by the Crown is appropriate to reflect the time spent on house arrest.

Released: September 20, 2018

Signed: "Justice Blouin"