ONTARIO COURT OF JUSTICE
CITATION: R. v. Boating, 2019 ONCJ 137
DATE: March 14, 2019
Scarborough - Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BOBBY BOATING
For the Crown A. Penny
For the Defendant M. Luft
Submissions heard: Feb. 19, 2019
REASONS for SENTENCE
RUSSELL SILVERSTEIN, J.:
A. INTRODUCTION
[1] This case began before me as a preliminary inquiry. After several days of evidence Mr. Boating re-elected to be tried before me and on November 8, 2018 he pleaded guilty to one count of possession of a loaded restricted handgun and three counts of failing to comply with a recognizance.
[2] The parties agree that Mr. Boating has spent 571 days in pre-sentence custody attributable to these offences and that pursuant to R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26, 857 days should be deducted from the sentence I impose.
B. THE CIRCUMSTANCES OF THE OFFENCE
[3] On August 21, 2017 police observed the accused and his friend, Yasir Aden, exit a car in a parking lot at 160 Chester Le Boulevard and walk briskly towards Mr. Aden’s home. One of the officers recognized Aden, and knowing he was in breach of an outstanding court order, began to follow them. Aden and Boating ran towards Aden’s home and the police gave chase. Boating was carrying a black satchel on his shoulder which contained an operable, restricted Ruger GP 100, .357 Magnum revolver, loaded with six rounds of ammunition.
[4] Mr. Aden soon emerged from the house and was arrested for failing to comply with a recognizance.
[5] P.C. DaSilva asked Mr. Aden’s mother, Hana Abdo, to retrieve a sweater for her son and to advise Boating to come downstairs. Ms. Abdo went upstairs and saw Boating standing in one of the four bedrooms. She grabbed a sweater off the bed and told Boating to go downstairs, which he did, but not before placing his loaded revolver inside a leather storage box at the foot of the bed.
[6] When Boating came downstairs he was arrested for failing to comply with a recognizance. Four rounds of .357 ammunition were found inside a sock in his pocket. Police then went upstairs and retrieved the loaded gun, which was visible inside the partially closed storage box.
[7] There were several civilians, young and old, in the house at the time of the incident.
[8] Mr. Boating was bound by a recognizance at the time. That recognizance ordered Boating to be in his residence with certain exceptions that did not apply that day. It also forbade him from being in the company of Mr. Aden and from being in possession of any weapons.
C. THE CIRCUMSTANCES OF THE OFFENDER
[9] Mr. Boating is now 24 years old. On the day of the offence he had a 2011 youth court conviction for robbery, use of an imitation firearm, and disguise with intent for which he received 30 days plus probation after spending six months in pre-sentence custody. He had also committed four other offences of which he went on to be found guilty prior to sentencing on the offences before me: two counts of failing to comply, one count of drug possession and one count of possession for the purpose of trafficking (PPT).
[10] Mr. Boating’s brother, Kwasi Agyeman, supplied a letter that speaks to Mr. Boating’s background. According to Mr. Agyeman, Mr. Boating is intelligent, and a talented musician. He thrived as a youth in the Chester Le area, a violent and dangerous place. In February 2015 Mr. Boating was shot while waiting for a bus. As a result of his injuries he was unable to attend the funeral for his beloved grandmother.
[11] According to Mr. Luft, Mr. Boating was picked on as a child when he demonstrated academic success.
[12] Mr. Boating went on to be shot twice more and has since lived in constant fear.
[13] Mr. Agyeman is happy to have Mr. Boating live with him, away from the Chester Le area, upon his eventual release from prison.
[14] Mr. Boating has engaged in a significant amount of counseling since his arrest. His counselors speak highly of his commitment.
[15] Mr. Boating prepared a letter for the Court where he expresses remorse for his actions. He also expresses ambition about certain career opportunities available to him upon his release.
D. THE AGGRAVATING AND MITIGATING CIRCUMSTANCES
[16] Carrying a loaded gun is inherently dangerous, and the law treats it very seriously. Carrying a loaded gun in a bag in a car, in a large city, and then abandoning it in a box at the foot of a bed in a house full of unsuspecting civilians aggravates this inherent danger.
[17] Unlike in many cases of gun possession, Mr. Boating was not apprehended in the presence of evidence of other criminality, such as drugs or stolen money. This is not so much a mitigating factor, but rather the absence of an aggravating factor that often appears in other sentencing judgments for gun offences.
[18] The case law acknowledges that even though Mr. Boating has been found guilty of breaching a recognizance forbidding possession of any weapon, and will be sentenced on that count, the fact that Mr. Boating was in breach of a court ordered weapons prohibition while carrying the gun is nonetheless properly characterized as an aggravating circumstance. R. v. Ledinek, 2018 ONCA 1017, [2018] O.J. No. 6503 (C.A.) at para 9.
[19] Mr. Boating joins the long list of individuals carrying loaded handguns in the City of Toronto. As it is again made clear in R. v. Biya, 2018 ONSC 6887, at paras. 32 – 34, this is a discreet aggravating factor given the continued prevalence of gun violence in that city.
[20] Mr. Boating’s guilty plea is a signal of remorse, a sentiment he also expresses in his statement to the Court. His guilty plea was not particularly early, however. Several days of emotional testimony by innocent witnesses had gone by before his decision to plead guilty.
[21] Mr. Boating has significant family support which the Court can rely on for assistance in his rehabilitation upon his eventual release.
E. THE POSITIONS OF THE PARTIES
[22] Ms. Penny seeks a sentence of three years on the firearm possession, one year consecutive for failing to comply with the weapons prohibition and six months concurrent on the two remaining failures to comply – a total of four years.
[23] Mr. Luft seeks a suspended sentence and probation in light of the lengthy pre-sentence custody.
F. THE CASELAW
[24] It is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment.
[25] Mr. Luft relies principally on the following cases: R. v. Reyes, 2018 ONCJ 185; R. v. Cadienhead, [2015] O.J. No. 3125 (Sup. C.J.); R. v. Filian-Jimenez, 2014 ONCA 601; R. v. Roy, [2018] O.J. No. 3427 (Ont. C.J.).
[26] In Reyes, Pringle J. sentenced the 23 year-old offender to two years’ incarceration for a single count of possession of a loaded handgun. Mr. Reyes had pleaded guilty earlier than Mr. Boating and had no criminal record. Mr. Reyes was also found in possession of a modest commercial amount of illegal drugs.
[27] In Cadienhead, Allen J. sentenced the 20 year-old offender, who had a minor criminal record, to 18 months for possession of a loaded firearm and six months consecutive for failing to comply with a probation order. Cadienhead had suffered tremendous trauma as a child, having witnessed his father stab his mother to death, leading to emotional distress that required psychiatric intervention.
[28] In Roy, the 22 year-old offender with a minor criminal record had suffered horrendous abuse as a child. He pleaded guilty, after several days’ of preliminary inquiry, to possession of a loaded handgun, which he was carrying in his waistband when investigated for impaired driving, and breach of a weapons prohibition. Moore J. sentenced the offender to a total of 24 months in prison.
[29] As for Filian-Jimenez, this was a case where the Court of Appeal for Ontario upheld a sentence that the Court clearly felt was rather lenient, remarking that the trial judge had made a finding that the offender possessed the handgun only for defensive purposes, after shots had been fired at his home. In Mr. Boating’s case, he was shot three times while living at Chester Le. However, in the absence of any evidence that Mr. Boating’s possession of his loaded gun was for purely defensive purposes, I do not consider the fact that Mr. Boating was the victim of numerous shootings to be mitigating. Whether carrying a gun for self-defence is indeed mitigating remains unclear. Cf. R. v. Morris, 2018 ONSC 5168 at para. 78.
[30] Ms. Penny relies principally on the following cases: R. v. Nur, 2015 SCC 15; R. v. Chambers, 2013 ONCA 680; R. v. Ledinek, 2018 ONCA 1017; R. v. Mansingh, 2017 ONCA 68; R. v. Biya, 2018 ONSC 6887; R. v. Nsiah, 2017 ONSC 769; and R. v. Thavakularatnam, 2018 ONSC 2380.
[31] Nur is, of course, the leading Supreme Court of Canada decision concerning the constitutionality of the former mandatory minimum sentence for possession of a loaded restricted handgun. The Court found the statutory minimum sentence to be unconstitutional, yet upheld the Court of Appeal’s decision to uphold the 40 month sentence imposed on Nur at trial. Nur had no criminal record and was 19 years old at the time he committed the offence, which involved lurking outside a community centre while armed with a loaded handgun. He had pleaded guilty in the Superior Court.
[32] The Supreme Court said this at para. 82:
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.
[33] In Manasingh the Court of Appeal for Ontario upheld a 43 month sentence imposed on the accused who was a youthful first offender, albeit where the trial judge had also found that Manasingh was involved in drug trafficking in the City of Toronto.
[34] In Nsiah the offender pleaded guilty in Superior Court to possession of a loaded handgun, breach of a recognizance and breach of a weapons prohibition. Police found a loaded handgun on a shelf in his bedroom closet, as well as other ammunition, a significant amount of cash, marijuana and a scale. Nsiah was 23 years old and had a criminal record for assault and possession of a schedule I drug for the purposes of trafficking. Mr. Nsiah enjoyed strong family support and had expressed remorse. He received a global sentence of three years.
G. THE PRINCIPLES OF SENTENCING APPLIED
[35] While rehabilitation and specific deterrence play a role in sentencing for gun offences, general deterrence and denunciation are the key driving principles. Nur, supra. It is also important that Mr. Boating be treated in a manner that is consistent with the treatment of other similar offenders who have committed similar offences.
[36] The breach of the weapons prohibition is a criminal disregard for the administration of justice that is quite separate from the possession of the weapon itself. Like-minded individuals must get the message that if bound by a weapons prohibition, a conviction and sentence for carrying a weapon will not entail a free pass for the accompanying breach of a court order. As such, the sentence for the breach should be consecutive to the gun sentence. R. v. Chambers, 2013 ONCA 680 at paras. 20 – 28.
H. CONCLUSION
[37] Mr. Boating was convicted as a youth of robbery with an imitation weapon and a disguise and spent a significant period of time in custody. Rather than learn his lesson from this incident, he went on to acquire a real loaded gun, and carried it around with him, in breach of a court ordered weapons prohibition, curfew and non-association condition.
[38] The appropriate global sentence for Mr. Boating is 40 months less credit for pre-sentence custody. The global sentence is to be apportioned as follows:
On the weapons charge: 1,020 days (34 months) less 857 days’ credit for time served leaving a total of 163 days.
On the fail to comply with the weapons prohibition: 180 days (six months), consecutive
On the two remaining fail to comply counts: 180 days (six months) concurrent.
[39] The total remaining sentence to be served is 343 days.
[40] I will hear submissions from counsel about ancillary orders.
Released on March 14, 2019
Justice Russell Silverstein