ONTARIO COURT OF JUSTICE

CITATION: R. v. White, 2019 ONCJ 190

DATE: 2019 03 14

COURT FILE No.: Central East Region: Oshawa Court No: 18-00530-03

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRADLEY WHITE

Before Justice Peter C. West

Guilty Plea entered September 21, 2018

Oral Submissions heard on January 15, 2019

Oral Reasons for Judgment released on March 14, 2019

Mr. N. Young.................................................................... counsel for the Crown

Ms. V. Tatsis-Yeh.................................. counsel for the accused Bradley White

WEST J.:

[1] Bradley White pleaded guilty to possession of a loaded restricted weapon, namely, a “Ruger” semi-automatic .22 caliber pistol, contrary to s. 95(1)(a) of the Criminal Code. The Crown proceeded by indictment. Mr. White is jointly charged on this offence with Anthony Psilopoulos and Noah Renison.

[2] An agreed statement of facts was filed as Exhibit 1, which indicated on May 31, 2018, police executed a s. 487 Criminal Code search warrant and a s. 11 Controlled Drugs and Substances Act search warrant at 222 Windsor Street, Oshawa. Members of the DRPS Tactical Support Unit executed the two search warrants.

[3] The “Ruger 22” was located in a shared kitchen in a readily accessible kitchen cabinet. A further loaded prohibited firearm, a “Bryco 38” semi-automatic .380 caliber pistol was also located in the inside left front jacket pocket of a jacket hanging off the back of a kitchen chair in the same shared kitchen. The “Bryco 38” had a hollow point projectile in the chamber and a further two hollow point projectiles and three rounded projectiles in the magazine. A second magazine was loaded with 1 hollow point projectile and 4 rounded projectiles and was found in the inside right front pocket of the same jacket. A third magazine for the “Bryco” was found on the floor beside the bed of Anthony Psilopoulos and Angela Stovin.

[4] A ballistic vest with Armour was found in the bedroom of Psilopoulos and Stovin. Ballistic armour panels were found in the common living room. There was a Taser baton and an expandable asp found in the bedroom of Psilopoulos and Stovin. In the living room closet a cocaine press, digital scales and drug paraphernalia were found. An 800 mL bottle was found with a substance believed by police to be GHB, however, the sample taken from this bottle did not test as GHB. Finally a pistol holster was found in the bedroom of Psilopoulos and Stovin.

[5] The house at 222 Windsor Street in Oshawa is directly across from Clara Hughes Public School. It is a shared residence between Angelica Stovin, Anthony Psilopoulos, Noah Renison and Bradley White. Bradley White began renting a room in the summer of 2017. Mr. White’s bedroom is on the south side of the upstairs of the house, Mr. Renison’s bedroom is on the north side of the upstairs and Psilopoulos and Stovin share a bedroom in the basement of the house.

[6] All individuals residing in the house share the kitchen, living room area and the upstairs bathroom. The living room of the house is decorated with various Biker Motor Cycle Club and Hells Angels posters.

[7] Bradley White is a prospective member of the Redline Durham Motorcycle Club. Exhibit 2 was filed by the Crown as evidence of association by Mr. White with Tony Psilopoulos’ Facebook page, which indicated Psilopoulos is a “hangaround” member of the Hells Angels MC. Tony Psilopoulos has been photographed in a “colours” vest, which bears the emblem indicating he is a “hangaround” member of Hells Angels MC. This was confirmed by Angelica Stovin in a statement to police. Noah Renison has been photographed wearing “colours” of the Redline MC indicating he is a hangaround member of Redline MC. This was also confirmed by Angelica Stovin in her police statement.

[8] The guilty plea was accepted by the Crown on the basis Bradley White had the requisite knowledge and control of the “Ruger” .22 calibre firearm found in the kitchen cupboard because of its location and his admission after entering his plea of guilty.

[9] Mr. White’s guilty plea did not speak to the liability or lack thereof of Tony Psilopoulos or Noah Renison in terms of their possession of this restricted firearm.

Position of the Parties

[10] The Crown is seeking a three year custodial sentence less pre-trial custody. Although the three year mandatory minimum was struck down by the Supreme Court in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the Crown argued the facts involved in Mr. White’s offence reflected “truly criminal conduct” for which Mr. White must receive an exemplary sentence that emphasizes deterrence and denunciation. The Crown is also seeking ancillary orders involving Mr. White providing his DNA and a s. 109 weapons’ prohibition order. The defence does not take issue with the ancillary orders sought by the Crown.

[11] The defence submitted a sentence of 18 months in the reformatory less pre-trial custody was the appropriate sentence having regard to Mr. White’s guilty plea, his relatively minor record and the fact this is his first sentence of imprisonment.

[12] The defence is further seeking enhanced credit because of the harsh conditions of Mr. White’s pre-trial incarceration. The Crown opposes this additional credit being given for pre-trial custody.

Circumstances of the Offender

[13] Mr. White is a 32 year old repeat offender with a minor criminal record. He has never received a jail sentence for the four entries in his criminal record from 2004 (youth) and 2005 to 2014 (adult): possession of property obtained by crime (youth); theft under, mischief and assault and impaired driving (adult).

[14] Mr. White described a difficult childhood with frequent moves and emotional and physical abuse from his stepfather. There are conflicting accounts from his mother and biological father concerning his upbringing. His parents were never married and they separated after the birth of his sister, who is about two years younger than Mr. White. He does not appear to have many supports within the community from the Presentence Report, Exhibit 3 with the possible exception of his father who wrote a letter in the Sentencing Materials provided by Ms. Tatsis-Yeh, marked as Exhibit 6. Mr. White indicated in the PSR he believed he would be able to live with his father, mother or sister upon his release from custody, although this was not confirmed by any of those parties to the probation officer. I have been advised today his father is offering his residence for Mr. White to reside upon his release from custody. The PSR indicated Mr. White has had little contact with family members since his incarceration.

[15] Mr. White did poorly in school, he was suspended on a number of occasions in elementary school for fighting, spitting on a student and wearing gang clothing. He skipped classes in high school and only obtained some of his Grade 9 and 10 credits in 2015 when he attended an alternative school. The PSR indicated Mr. White has not graduated from high school and according to the presentence report, he is unable to read.

[16] Mr. White has an 11 year old daughter he indicated he is close to and this is reflected in the letters in Exhibit 6. He is described as a good father. He stated to the probation officer he and his daughter’s mother were together for 10 years and separated just after his daughter’s birth, however, Ministry of Community Safety and Correctional Services case notes reflected they had been in a relationship for five years prior to the birth. His current girlfriend, Sara (no last name provided) is currently pregnant with Mr. White’s child.

[17] At the time of this offence Mr. White was receiving Ontario Works and was not employed. He could not recall many details about employment he had in the past. Previous probation records indicated he had worked for brief periods of time installing eavestroughs, landscaping, factory work, pizza delivery and construction.

[18] Mr. White has had significant difficulties with alcohol, particularly after his stepbrother’s murder. He advised the probation officer prior to his arrest he was consuming 26 ounces of alcohol a minimum of four times a week, sometimes daily. As a result of his alcohol abuse he had been involved in physical altercations and had experienced black outs. Substance use was a factor in some of his prior convictions. His use of illicit substances, namely, cocaine, increased after his stepbrother’s death. Prior to his arrest he was engaging in drug use “as much as [he] could” and he was high when he was arrested. The letter from Danielle Bouchard, Mr. White’s step-mother, (Tab 2), Exhibit 6 indicated that Ms. Bouchard was not aware of Mr. White’s involvement with drugs, which according to Mr. White was quite significant, particularly after his stepbrother’s death.

[19] Mr. White advised the probation officer he recognized the importance of his stopping his use of illicit substances and consumption of alcohol and that this had to be his decision. He professed to be aware his substance abuse has had a negative impact on his family relationships and led him to engage in criminal activities. The PSR reflected that Mr. White has previously not availed himself of counselling that was part of his probation orders. Further, Mr. White did not avail himself of any of the organized programs offered at Central East Correctional Centre (CECC) dealing with drug and alcohol addiction or upgrading his education. This is reflected in the letter provided by Mr. Camman, Manager, Security and Investigations, CECC, dated January 11, 2019, Exhibit 6B.

[20] Mr. White has a prior criminal record although it is minor, involving a June 1, 2004 youth probation for possession of property obtained by crime under $5000; a July 5, 2005 conviction for theft under for which he received probation; a July 17, 2014 conviction for mischief under and assault for which he received probation and an impaired driving conviction on November 4, 2014 for which he received a $1500 fine, a prohibition order and a probation order.

[21] His previous response to community supervision was poor according to the PSR and his future ability to comply with community supervision was termed, “questionable.” There are concerns respecting the individuals he was associating with in terms of his living arrangements and his involvement with motorcycle clubs such as Redline Motor Cycle Club (MCC) and Hells Angels MCC. The agreed statement of facts indicated Mr. White is a “hangaround” member of the Redline MCC.

[22] Mr. White has been in custody since his arrest on May 31, 2018. He did not apply for bail in respect of the charges he was facing and therefore, he has remained in custody. He currently has 287 days of actual pre-trial custody from his arrest, May 31, 2018 until March 14, 2019. On a 1.5 to 1.0 basis this means he has 431 days of pre-trial credit, pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. The defence is also requesting enhanced credit pursuant to the decision in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.). I will deal with this issue separately in my reasons.

[23] Finally, the PSR reflected Mr. White may have some family history of Metis on his father’s family, however, this was not confirmed by his father, Eric Ferguson, although it was confirmed by Mr. White’s mother, Jeanette White. Mr. Bradley White advised the probation officer he had not pursued this background and advised he had no interest in doing so. The defence was not requesting a Gladue report or Gladue letter be prepared.

Impact on the community

[24] There is no specific victim affected by Mr. White’s criminal conduct other than the impact on the community at large of a person having possession of a restricted or prohibited firearm. Numerous sentencing decisions have referred to “illegal handguns” being a scourge and a plague on the community. Justice Goldstein in R. v. Beals, [2015] O.J. No. 2306 (SCJ) at para. 31, has in my view expressed the significant impact on the community perpetrated by offenders who possess illegal firearms:

That said, the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes: either to kill people, or to intimidate people -- and the reason they are intimidating is because everyone knows about the first purpose. These weapons are extremely dangerous, especially when they are loaded and tossed away in a public place, as this one was. The crime of possessing one of these weapons is not a momentary lapse of judgment. It is not like participating in a bar fight that gets out of hand and causes serious injury. Possession of weapons like these usually requires more thought. We do not know exactly how Mr. Beals came into possession of this weapon, but we do know that he got rid of it in a manner that suggests he knew what he was doing. The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public.

[25] It is important to note that in the agreed statement of facts, Exhibit 1, that an elementary public school is directly across the street from the residence where Mr. White was living and where the two firearms were found during the execution of the search warrants.

Determining the Appropriate Sentence

[26] In determining an appropriate sentence for Mr. White, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 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 a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

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

[28] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[29] Although deterrence and denunciation are the most significant sentencing principles in cases involving the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of an offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, 2003 4187 (ON CA), [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. Here Mr. White is also not a first offender, however, his criminal record is relatively minor and he has never previously received a custodial sentence.

[30] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 92).

[31] Both counsel provided me with numerous cases dealing with the sentencing of offenders who have possessed restricted or prohibited firearms. I do not intend to refer to every decision provided to me but will refer to a sampling, which are summarized below:

[32] Some of the cases the Crown provided included:

R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Nur, age 19, was standing outside a community centre with some other persons. When the police arrived on scene, Nur ran and threw a loaded .22 calibre handgun with an oversized clip under a car. Nur was an exceptional student with no criminal record, he was described as having unlimited academic and athletic skills. A 40 month sentence was held by the majority as an appropriate sentence for offenders at the “true crime” end of the spectrum.

R. v. Beals, [2015] O.J. No. 2306 (SCJ, Goldstein J.). Beals, a 23 year old first offender, threw a loaded .22 semi-automatic into a grassy area after a car crash. The car crash was video-taped by an in-car police camera and Beals was observed throwing an object into the grassy area. “True crime” end of the spectrum will attract a significant penitentiary sentence for possession of a loaded prohibited weapon (see also R. v. Nsiah, [2017] O.J. No. 526 (SCJ Goldstein J.), Nsiah, age 23, a .22 calibre revolver with ammunition was found nearby in a bedroom closet pursuant to a search warrant, minor record for assault, obstruct justice and breaches of court order, 2.5 year sentence for s. 95(1) offence and 6 months consecutive for the s. 117 offence (breach of weapons’ prohibition order). This was a guilty plea.)

R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370 (SCJ, Campbell J.). Browne, age 29, hid a .40 calibre semi-automatic firearm with 7 rounds of ammunition in the magazine in his grandmother’s bedroom. She was away on vacation for an extended time. Browne had criminal record for drug trafficking with 6 year gap but was on a weapons’ prohibition. Browne was employed as an asbestos worker, he was victim of sexual assault as a child and suffered from ADHD and depression. Received 3 year sentence for s. 95(1) offence and 6 months consecutive for s. 117 offence (see also R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ, Campbell J.), 9 mm loaded firearm was found in a bedroom dresser, minor record (weapons’ prohibition), 3 years s. 95(1) offence and 6 months consecutive for a s. 117 offence).

R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (C.A.), affirming 2016 ONSC 94, [2016] O.J. No. 92 (SCJ Goldstein J.). Mansingh was found guilty after a trial, he ran from police and tried to dispose of a loaded handgun. He was a youthful first offender. Sentencing judge found Mansingh engaged in low level drug dealing as an aggravating factor. Sentence imposed 43 months was affirmed by Court of Appeal, (see also R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (C.A.), after trial, trial judge imposed 3.5 year sentence where firearm possessed while accused engaged in drug trafficking).

[33] Counsel for Mr. White also provided me with a number of sentencing decisions:

R. v. Rutledge, [2015] O.J. No. 5568 (SCJ Wein J.). After trial, an accused farmer convicted of possession of prohibited handguns, which were brought into his house by his step-son and careless storage of long guns. Rutledge had been involved in trafficking in marihuana but was also aware of his step-son’s possession and use of cocaine. Crown sought 21 months to 2 year sentence and defence sought conditional sentence. 18 month custodial sentence imposed less credit for restrictive bail conditions and 2 years’ probation for accused facilitating handguns being in his house. Careless storage charges related to regulatory type offence and 3 months concurrent imposed on those two charges concurrent to remaining 12 month sentence for s. 95(1) offence involving the handguns in context of drug trafficking.

R. v. Brown, [2006] O.J. No. 4681 (SCJ Trafford J.). Joint submission for 15 month sentence, less pre-trial custody 7.5 months on 2 for 1 basis is 15 months so 1 day sentence with three years’ probation although Trafford J. indicated appropriate range for possession of loaded prohibited weapon would be 18 months to two years less a day. Accused had a youth and adult minor record.

R. v. Filian-Jiminez, 2014 ONCA 601, [2014] O.J. No. 3852 (C.A.). Early guilty plea to possession of loaded restricted firearm. Accused admitted to keeping gun in house for protection but had repudiated gang membership and was employed full-time. Sentencing judge imposed an 18 month custodial sentence. Crown appeal, Court of Appeal in an endorsement, indicated very low sentence, not persuaded sentencing judge erred in principle.

R. v. Ishmael, 2014 ONCJ 136, [2014] O.J. No. 1391 (OCJ Cole J.). Possession of a loaded prohibited firearm by youthful first offender, positive PSR. Relied on earlier Court of Appeal decision R. v. Smickle 2013 ONCA 678 which held absent mandatory minimum sentence a sentence approaching or at maximum reformatory sentence would be appropriate. 2 years less a day less was appropriate sentence however offender given reduction of sentence by one quarter (6 months) and therefore received 18 month sentence.

R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104 (SCJ Campbell J.). Boussoulas, 65 year old first offender had a loaded .45 calibre Colt handgun behind dresser in the bedroom. The gun was purchased because of death threats from renters who were using the property as a grow-op and he was a witness. Accused’s explanation was accepted by the sentencing judge. Sentenced to 21 month custodial sentence with probation.

R. v. Molin, [2015] O.J. No. 6074 (SCJ McCarthy J.). Convicted of s. 95(1) offence involving sawed off shotgun, serial number defaced, after a ury trial, youthful accused with dated youth record for robbery. Defence seeking 18 months to two years less a day and Crown seeking 3.5 to 4 year sentence. Two year sentence and 2 years’ probation.

R. v. James and Dawson, [2017] O.J. No. 273 (SCJ Mew J.). After trial, possession of a handgun by each accused. Dawson also convicted of possession for purpose of trafficking in cocaine (23.47 grams). No criminal record for each. Dawson had handgun outside residence and disposed of gun and cocaine in the snow. Both sentenced to two years less a day imprisonment with probation. The sentence reflected a reduction for Charter breaches found during the trial for both and restrictive bail conditions for Dawson.

R. v. Reyes, [2018] O.J. No. 1560 (OCJ Pringle J.). Reyes, a 23 year old first offender pleaded guilty to possession of loaded firearm, a silver .45 mm automatic handgun, on the first day of his preliminary hearing. In addition, police found 22.7 grams of cocaine, 598.07 grams of marihuana and 134 tablets of Xanax in a safe in his condo together with drug paraphernalia. Reyes was cooperative with police and confessed respecting ownership of the firearm. Sentence imposed two years less presentence custody and probation.

[34] The defence also provided numerous cases, which pre-dated the introduction of mandatory minimum sentences that were ultimately struck down in the Smickle and Nur decisions and it is my view these decisions are not particularly helpful in determining a proportionate sentence. Despite striking down the minimum sentences mandated by s. 95(2), the Ontario Court of Appeal and the Supreme Court of Canada have clearly drawn a distinction between “true crimes” and those offences that are more regulatory in nature. As reflected by McLachlin C.J. in R. v. Nur, supra, 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. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. [Emphasis added]

[35] Many of the cases provided by the defence involved far different circumstances than the facts of Mr. White’s case. For example, the Rutledge and Boussoulas cases were exceptional cases with significantly less serious facts; the Brown decision by Justice Trafford was a joint submission where he indicated the usual sentence would be 18 months to two years less a day; the Court of Appeal in Filian-Jiminez indicated in an endorsement that the sentence was a very low sentence but they were not willing to interfere with the sentencing judge’s sentence; in Ishmael, Justice Cole indicated an appropriate sentence, relying on Smickle was two years less a day and he gave a one quarter reduction because of Mr. Ismael’s guilty plea; in James and Dawson both accused received reduction of sentence because of a Charter breach found by trial judge and Dawson received further reduction for restrictive bail conditions and in Reyes youthful first offender after guilty plea received two year sentence less pre-trial custody.

[36] What the caselaw provided by both counsel demonstrates is that sentencing is a very individualized process and there is not one size fits all or a uniform sentence for all offenders who commit a particular crime.

[37] Regardless of which cases I am directed to involving the possession of a restricted or prohibited weapon, they all have a consistent theme, regardless of the level of court: “firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons,” R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (SCJ Kelly) at para. 32. This principle is well expressed by Trafford J. in R. v. Villella, 2006 39324 (ON SC), [2006] O.J. No. 4690 (S.C.J.) at para. 46:

...[T]he 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 the 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 exceptionally serious crimes.

[38] The Supreme Court in Nur clearly indicated that circumstances which fall within the “true crime” end of the s. 95 spectrum of offences will still attract exemplary sentences that emphasize deterrence and denunciation and protection of the public, regardless of the constitutionality of the three year mandatory minimum sentence. This position has been maintained by the Ontario Court of Appeal prior to the introduction of the mandatory minimum sentences, see Marshall, supra, and after the mandatory minimum sentence was struck down, R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) and R. Charles, 2013 ONCA 681, [2013] O.J. No. 5115 (C.A.)

Mitigating and Aggravating Circumstances

[39] In considering what is a proportionate and fit sentence for Bradley White I must consider the mitigating and aggravating circumstances.

[40] Mr. White’s guilty plea is an expression of remorse on his part and reflects his acceptance of responsibility for his involvement respecting this loaded restricted firearm.

[41] Mr. White grew up in a dysfunctional family and suffered physical and emotional abuse from his step-father, who was an alcoholic. One of his step-bothers was murdered in 2012, in Hamilton, when he was 18 years old and Mr. White identified this event as leading to his using illicit substances and alcohol in excess.

[42] Mr. White advised the probation officer he has had time to think about his substance abuse and he has recognized his abuse of alcohol and drugs was “selfish,” had a negative impact on his family relationships and led him to become involved in criminal activities. He indicated a desire to change his lifestyle. His stated desire to change will hopefully assist him in the rehabilitative process.

[43] At the time of Mr. White’s possession of this Ruger .22 calibre restricted firearm he did not have the requisite license, authorization or registration certificate, which would have permitted him to lawfully possess such a firearm. In my view this is an aggravating circumstance to consider on sentence. Further, no explanation has been provided by Mr. White respecting his possession of this illegal handgun.

[44] This firearm was found by police in a kitchen cupboard sitting beside a set of mixing bowls and a stainless steel pitcher. The Ruger’s clip, loaded with 10 projectiles, was inside the Ruger and ready to fire. This firearm was readily available to anyone living in the residence and could have been utilized to cause serious bodily harm or death.

[45] This firearm was carelessly and dangerously stored in the kitchen cupboard. The handgun was in plain view as soon as the door to the cupboard was opened. When the cupboard door was opened the Ruger was at waist height and easily grabbed. This loaded firearm created a very dangerous situation.

[46] A further aggravating circumstance was the fact a second loaded handgun, a Bryco .38 pistol (prohibited firearm) loaded with 3 hollow point and 3 rounded projectiles, was also found inside a jacket in the kitchen. There were two additional magazines also located, a loaded magazine (containing 1 hollow point and 4 rounded projectiles) in the same jacket and a third magazine in Mr. Psilopoulos’ bedroom. A pistol holster for the Bryco .38 pistol was found in the same bedroom as the third magazine. In addition, a ballistic vest with armour was found in Mr. Psilopoulos’ bedroom and two ballistic armour panels were found in the living room, which everyone living in the house had access to. The Bryco handgun is a small firearm, which can be easily hidden by the person using it. The presence of two unlicensed, illegal handguns in this house is evidence of the fact Mr. White and others residing in this house were involved in “true criminal” activity.

[47] There was drug paraphernalia found inside the residence in a living room closet, which were accessible to all the residents, such as a cocaine press, digital scales and other drug paraphernalia. This leads to the reasonable inference that someone in the residence was involved in the trafficking of illicit substances and the handguns presence was likely connected, however, there is little to no evidence for me to find that it was Mr. White who was involved in drug trafficking.

[48] Finally, Mr. White was involved in an organization, the Redline MCC, which is associated and affiliated with the Hells Angels MCC. The Hells Angels MCC has been found to be a criminal organization as defined in the Criminal Code in a number of cases, including R. v. Lindsay (2009), 2009 ONCA 532, 245 C.C.C. (3d) 301 (Ont. C.A.). There were posters and evidence found respecting those who resided in this residence, which expressed support and approval of the Hells Angels MCC, see Exhibit 4, which contains numerous photographs of these posters throughout the house as well as photographs of Hells Angels MCC members and a map showing the various club locations in Canada and the United States. In my view this is also an aggravating circumstance respecting the possession of this loaded restricted firearm.

The Appropriate Sentence

[49] Considering the totality of the circumstances in this case it is my view a proportionate sentence having regard to the seriousness of the offence, possession of a loaded restricted weapon in circumstances where the offence is at the end of the spectrum of “true crimes” and the moral blameworthiness of Bradley White, his plea was entered on the basis he had the requisite knowledge and control of the Ruger .22 calibre restricted firearm, is one of 30 months less pre-trial custody of 287 actual pre-trial days in custody, which on a 1.5 to 1.0 basis, pursuant to R. v. Summers, supra, translates to credit of 431 days or 14.2 months. This leaves 15.8 months of custody remaining. In a number of the cases where 3 or 3.5 year penitentiary sentences were imposed, the sentence was imposed after a trial or where an accused had a previous weapons’ prohibition order. In my view Mr. White’s guilty plea is entitled to be reflected by a reduction of his sentence.

I am of the view, however, that the “true crime” circumstances of Mr. White’s possession of this restricted firearm requires an exemplary sentence in the low penitentiary in order to reflect the significant harm occasioned to the community by individuals who possess unlicensed, unregistered, illegal firearms. As the Court of Appeal for Ontario stated in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19, "[m]ost s. 95 offences will attract a penitentiary term even for first offenders," and even "less serious" versions of the crime than are typically committed "will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders." The circumstances and facts of this case do not justify a maximum reformatory sentence.

[50] I adopt the comments by Justice Campbell of the Ontario Superior Court in a factually very similar case, R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273:

As I have indicated on earlier occasions, the criminal possession of handguns in such circumstances remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in some other criminal activity, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms is a menace to society. Accordingly, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence and appropriately stress the need to denounce and deter such serious crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences.

[51] I was also requested by the defence to give Mr. White enhanced credit of three months because of the harsh conditions he experienced in terms of the number of lockdowns at CECC during his incarceration. According to Mr. Camman’s letter, dated January 11, 2019, Mr. White has been subject to 6 occasions of lockdowns of less than 6 hours and 35 occasions where his Unit was locked down 6 hours or more (the exact number of hours is set out in the letter). No additional letter respecting lockdowns was provided for the period of January 11, 2019 to March 14, 2019, just short of two months. The 41 occasions of lockdown occurred over 226 days of being incarcerated. Mr. White was tripled bunk on only 6 days while incarcerated at CECC. Mr. White did not seek to be involved in any organized programs offered by CECC or any of the programs offered by volunteers. The defence argued enhanced credit for harsh conditions during a defendant’s incarceration, which includes lockdowns, not being permitted outside, triple bunking in a two bunk cell, and being deprived of the various programs offered by the institution, showers, visits and phones because of the lockdowns has been recognized by the Ontario Court of Appeal in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.). Mr. White provided an affidavit respecting the impact on him concerning the lockdowns, which reflected that lockdowns had caused him a great deal of stress, the lack of showers affected his personal hygiene, his ability to contact his lawyer. Mr. White experienced the death of an inmate in his unit but no details were provided as to the cause of this individual’s death and whether it was related in any way to the lockdowns at CECC. The Crown did not seek to cross-examine Mr. White on his affidavit.

[52] Let me indicate first there is no rigid or mathematical formula to be given by a sentencing judge for enhanced credit. Second, the Ontario Court of Appeal has indicated in a number of recent decisions a concern as to what circumstances will justify enhanced credit. In R. v. Gregoire, 2018 ONCA 880, [2018] O.J. No. 5713, Paciocco J. held the sentencing judge did not err in determining not to give enhanced credit to the accused because of the number of days he spent in lockdown and in overcrowded cells. Mr. Gregoire received pre-trial credit of two years and two months, which reduced the eight year sentence for manslaughter to five years and ten months. Miller J. wrote a concurring judgment expressing that further guidance by the Court of Appeal was needed as to what circumstances may justify enhanced credit. He indicated this may require an explanation of the doctrinal foundation for the practice of granting enhanced credit outside of s. 719(3.1) in light of the decision in R. v. Summers, supra.

[53] What is clear from the record before me is that Mr. White’s experience of lockdowns and triple bunking at CECC did not come close to approaching the lockdowns and lack of fresh air that is reflected in the cases of R. v. Nsiah, supra; R. v. Jama, 2018 ONSC 1252, [2018] O.J. No. 1130 (SCJ Goldstein J.); R. v. Inniss, 2017 ONSC 2779, [2017] O.J. No. 2420 (SCJ Forestell); and R. v. Crawford, 2018 ONSC 7582, [2018] O.J. No. 6697 (SCJ, Campbell J.). This was referred to in another decision in the Court of Appeal, R. v. Ledinek, 2018 ONCA 1017, [2018] O.J. No. 6503, where Hourigan J. for the Court referred to the reasons of Justice Penny in the Superior Court who declined to exercise his discretion in granting Mr. Ledinek any additional credit. In my view the number of occasions Mr. White was subjected to lockdowns at CECC requires me to exercise my discretion and grant a further 45 days or 1.3 month reduction in sentence, leaving a custodial sentence of 14.5 months remaining.

[54] In addition I will place Mr. White on probation for three years to assist him in his rehabilitation. I will discuss with counsel the conditions of probation they believe will be appropriate in Mr. White’s case.

Released: March 14, 2019

Signed: Justice Peter C. West