Court Information
Ontario Court of Justice
Date: August 7, 2019
Between:
Her Majesty the Queen
— and —
Devante Virgo
Before: Justice B. Knazan
Reasons for Sentence released on: August 7, 2019
Counsel
Jenny Rodopoulos — counsel for the Crown
Mayleah Quenneville — counsel for the accused, Devante Virgo
Decision
KNAZAN J.:
The Offences and Guilty Plea
[1] Mr. Virgo has pleaded guilty to two counts of possession of a loaded restricted firearm on May 9, 2018. He had just turned 18 four months before he committed both offences. He has never been convicted or found guilty of any other offence, as a youth or an adult.
[2] Unfortunately, because it is a reflection of how many restricted loaded firearms there are in Toronto, the sentencing jurisprudence is growing rapidly and points directly to an appropriate range of sentence, that begins from at least three years in the penitentiary. This despite Mr. Virgo's youth and his clean record. The Supreme Court of Canada's comments about the three year and four month sentence imposed on a youthful first offender with no record in R. v. Nur, 2015 SCC 15, has anchored a consensus that the crime is so serious that the need to denounce it and deter others can justify a penitentiary sentence even as a first jail sentence.
[3] Crown counsel submits that a sentence of four years in jail is warranted because of the two separate firearms, the dangerous abandoning of one of the loaded firearms when Mr. Virgo successfully eluded the police and the possession of the firearms in the middle of the day on a busy Toronto street. The need for parity and sentences imposed on others supports the submission that such a sentence is proportional to the seriousness of the offences. That sentence or a shorter one of three years in the penitentiary would be fit.
[4] But there can be more than one fit sentence. Mr. Virgo accepts that his offences are serious and that nothing short of a substantial prison sentence would be proportional to his responsibility and the seriousness of the offences, both of which he acknowledges. He submits that a shorter sentence of imprisonment would meet the principles of sentencing and also be fit.
[5] He relies on circumstances general to young men of colour in Toronto, the deprivation many are subject to, and the effect upon them of interactions with police. He also relies on circumstances specific to him. In addition to challenges he faced as a young person, he had a fear for his safety, not from the police, but from others, which was his reason for having a loaded firearm. This fear was not fanciful, because in the period between the time he escaped from the police in May and his arrest in August he was shot and wounded.
[6] Mr. Virgo's submission raises the issue of what is the evidence before the Court on the experience of young black males in Toronto and what this Court is entitled to take judicial notice of in the absence of such evidence.
The Offences – May 9, 2018
[7] On the day that he was found in possession of the guns, Mr. Virgo was a passenger in a car registered to him. The driver attracted the attention of the police when he crossed into lanes of oncoming traffic before returning to his own side of the road and stopping the car at the side of the road.
[8] Two officers in a police car observing this pulled over behind. Mr. Virgo came out of the front passenger seat. They arrested the driver and investigated Mr. Virgo. Before the driver left the car he slid a bag over to the passenger side where Mr. Virgo had been sitting. The police asked Mr. Virgo who he was and he cooperated. He produced his licence and the vehicle registration.
[9] One of the officers picked up the bag and began to look inside. Mr. Virgo grabbed the bag out of the officer's hands and ran. The officer gave chase and could not catch up. En route to his successful escape, Mr. Virgo crouched behind a car in a lot at one point and abandoned the bag. He also removed his shirt. He ran on and discarded something. The police searched his path and found a bag with a shirt, some shoes, some marijuana and 7 rounds of ammunition. In a lightly wooded area with some trash, indicating that people went there, very close to a parking lot and some apartment buildings, the police found a loaded, cocked, high power Browning firearm with 12 rounds of ammunition in the magazine and one in the chamber. By his plea of guilt, Mr. Virgo has acknowledged that he left that gun in the woods.
[10] Meanwhile, back at the scene where the police had stopped the car, Mr. Virgo's brother (they both have the same father) grabbed a knapsack from the back seat where he had been a passenger and ran in the opposite direction. The police chased him in the car and caught him. Inside his knapsack was a loaded Ruger 375 Magnum firearm. Later investigation revealed Mr. Virgo's palm print on that firearm. By pleading guilty to possessing it on May 9 he is acknowledging, at the very least, that he held it long enough to leave his print at some point and that his brother had it in the car with Mr. Virgo's knowledge and control.
Mr. Virgo
[11] Mr. Virgo's parents separated when he was four years old and his mother raised him until he was 15, when he left to live with his father. The information as to why he moved out is not clear in the pre-sentence report and Mr. Virgo declined to provide the writer of his pre-sentence report with his mother's contact information.
[12] Mr. Virgo grew up in the Rexdale area of Toronto. He had many encounters with the police, being stopped and questioned. The majority of these interactions were bad in his opinion, but he did have some good interactions.
[13] Although he did not finish school he enjoyed it and he has good work habits. He is also skilled. He played and coached basketball well and participated in tournaments in the United States. He produces his own videos, satires that offended some people in his community, and he is planning to follow a career in culinary arts and has already begun to learn to cook.
[14] In a statement to the pre-sentence report writer, that I will return to, he said that he was afraid for his life because of enemies that he had made with his videos.
The Evidence and Impact of Systemic Discrimination Against Young Black Men
[15] Mr. Virgo pleaded guilty after the completion of the evidence at his preliminary inquiry. When the matter was adjourned for sentencing, his counsel advised the Court that she was inquiring into preparation of a report on the impact of race on young men in Mr. Virgo's situation. The matter was adjourned once more for the same purpose. Ultimately, she advised the Court that there was no funding for the report which would cost in the multiple thousands of dollars. Mr. Virgo has not yet had an opportunity to be employed and his father is ill and apparently not in a position to help him. In this way, Mr. Virgo's financial status, really his poverty, was introduced into the case.
[16] In the absence of such evidence, Mr. Virgo's counsel submits that I should recognize that "broader systemic factors such as racism and the effects of colonialism must surely have some impact upon the application of deterrence and denunciation." She relies on R. v. Morris, 2018 ONSC 5168, where Justice Nakatsuru had the type of evidence that Mr. Virgo attempted to obtain here but could not because he could not afford it. He had general information on the historical record of black persons in Canada but also had a report particular to Mr. Morris.
[17] Justice Nakatsuru pointed out that the "criminal law has recognized that there are cases where, in order to determine a fit and proportionate sentence, consideration must be given to an individual's systemic and social circumstances". He cited the case of "Indigenous offenders" and rightly, in my view, acknowledged that "the distinct history of colonial violence endured by Indigenous peoples cannot simply be analogized to Black Canadians." He pointed out that in R. v. Jackson, 2018 ONSC 2527, he found that the ability (of a judge) to consider social context in a sentencing decision is extended to all under s. 718.2 (e) of the Criminal Code.
[18] In my opinion, the law is still different from the case of an Aboriginal offender. There the obligation of a judge to consider the particular circumstances of an aboriginal offender at the sentencing stage and to take steps to inquire into them is included in s.718.2 (e) of the Criminal Code and the Supreme Court of Canada has directed and required judges to take judicial notice of the systemic discrimination that aboriginal people have suffered: R. v. Gladue. Further the Supreme Court of Canada has held that the discrimination is the responsibility of the Canadian governments that administer the criminal law. "The Canadian criminal justice system has failed the Aboriginal peoples of Canada." R. v. Gladue, supra, paragraph 62.
[19] However, in R. v. Le, 2019 SCC 34, the Supreme Court of Canada found that "Members of racial minorities have disproportionate levels of contact with the police and the criminal justice system in Canada." The Court accepted the conclusions of the Ontario Human Rights Commission report Paying the Price: The Human Cost of Racial Profiling (online). That report in turn characterized the 1992 report of the Commission on Systemic Racism in the Ontario Criminal Justice system as the most comprehensive report on the issue of systemic racism in Ontario's criminal justice system and noted its confirmation of the perception of racialized groups that they are not treated equally by criminal justice institutions. (my emphasis). Le, paragraph 90.
[20] Therefore, although Le dealt with the perception of members of racial minorities of the police in relation to the issue of police detentions, and not sentencing, I am able to rely on the Supreme Court's conclusions in assessing any lack of trust in the police to protect him that Mr. Virgo may have had which might explain his crimes or be relevant to his degree of responsibility.
[21] R. v. Morris, supra, did of course deal with sentencing. I am advised that the sentence in that case is under appeal. Justice Nakatsuru, over the Crown's objection, considered the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario. One statement in that report is supported by the Le judgment and is relevant to Mr. Virgo's controversial statement in his pre-sentence report, that he would rather go to jail than be killed. Citing other Report's authors, the authors write that "…evidence suggests that Black youth engage in violence as a means of "self-help" resulting from the belief that the police cannot, or will not, provide them with adequate protection (Wilkinson, Beaty and Lury)." This is consistent with the Supreme Court's endorsement of the observation that there is a perception by racialized groups that they are not treated equally by criminal justice institutions. Those institutions include not only the police but the courts as well.
[22] Although Crown counsel did not have the opportunity or the obligation to address the report appended to the Morris decision, I did not understand her to take issue with Mr. Virgo's mistrust of the police. Her argument is that it cannot in any circumstance justify the possession of two loaded firearms.
[23] I would summarize the information that I do have and am able to consider of the impact of systemic racism on Mr. Virgo's case by stating that there is some evidence, his credible statement to the pre-sentence report writer that he had the gun for self-protection. Implicit in that is that he perceived that he could not depend on the police for protection. I accept that. And on that point, his subsequent shooting is objective proof that his fear was justified. The perception of racialized groups, and Mr. Virgo is a young black man, that they are not treated equally by criminal justice institutions has been recognized by the Supreme Court of Canada. And one report prepared for and accepted by the Superior Court in a sentencing case has recognized the link between black youth not trusting the police to protect them and resorting to self-help.
[24] The behavior of the police when they stopped Mr. Virgo is relevant to his perceptions of police treatment. The officer simply looked in the bag. The officer testified that Mr. Virgo was under investigative detention. The rights to search incident to investigative detention would not seem to justify looking in a bag that the person being investigated was not holding. However, by his guilty plea Mr. Virgo abandoned any claim in this case that his rights were violated. He was given an opportunity by the Court to revive the issue after the Le decision was released between his guilty plea and sentencing submissions. His counsel offered his perception that he would not be treated fairly as one of the reasons that he ran, but to Mr. Virgo's credit, he did not attempt to revive any claim to his Charter rights being violated but continued by his guilty plea to take responsibility for his actions. The inference is at least as strong that he ran because of what was in the bag. I draw no conclusions as to why he ran but rely solely on his running and what he did, to which I now turn.
Abandoning the Gun in the Wooded Area
[25] After Mr. Virgo fled from the police with the bag containing the Browning, he showed irresponsibility in his flight and evasion. His abandoning the gun in a wooded area is an aggravating fact. It risked causing even a greater danger than the possession of the gun in the car on a busy street. The Court of Appeal explained this in R. v. Mansingh, 2017 ONCA 68, in a passage that applies directly to Mr. Virgo's case:
We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child. R. v. Mansingh, supra at paragraph 24.
[26] The police found the gun after a search soon after the chase, but Mr. Virgo cannot benefit from that happenstance – his intention was that it not be found in circumstances that connected it to him.
Parity
[27] Section 718.2 (b) of the Criminal Code states that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[28] This, the parity principle, is relevant to Mr. Virgo's case in two ways. Firstly, it requires that I consider sentences imposed and reported that can be said to involve similar offenders, similar offences and similar circumstances. Secondly, I must consider parity in relation to his brother.
[29] The similar offences and similar circumstances, surprisingly, and I repeat unfortunately, are not difficult criteria to address. Possessing a loaded firearm and then running from the police occurs frequently enough in the reported sentencing judgments. R. v. Nur, supra, is one example. There Nur ran from the police and hid the loaded gun underneath a parked car. The Supreme Court of Canada, in the course of finding the minimum sentence of 3 years to be cruel and unusual punishment, observed, as did the Ontario Court of Appeal, that judges can impose exemplary sentences that emphasize deterrence and denunciation and upheld a sentence of 40 months. Nur was 19 years old. As here, it was not clear when or for how long Nur came to possess the loaded handgun.
[30] As well, in Mansingh, that I have mentioned, which was decided after Nur, the court declined to interfere with a sentence of 43 months in prison. His offence was quite similar, as I have reviewed.
[31] One difference in the circumstances, at least as they apply to Mansingh, is that he was involved in the low-level drug trade. Although there was marijuana and some cash in Mr. Virgo's bag, it has not been established that he was a drug trafficker.
[32] In R. v. Harutyunan, 2012 ONSC 58, Justice Benotto, of the Ontario Superior Court as she then was, sentenced the 25 year old Mr. Harutyunan, who had no criminal record, and "made good use of his time" when his strict bail conditions were lifted, to four years in prison. Mr. Harutyunan was found guilty of possession of only one loaded handgun and he did not flee from the police and abandon it. He was convicted of obstruction of justice as well as several other offences relating to the same prohibited firearm. Mr. Virgo could have been found guilty of some of those offences because he, like Harutyunan, was occupying a vehicle with a firearm, and carelessly carried a firearm and possessed the firearm for a dangerous purpose.
[33] Harutyunan was decided before the Supreme Court set aside the mandatory minimum sentence of three years for possession. There is no indication that he pleaded guilty. But I do not draw these distinctions because the exercise of distinguishing other sentences can go on almost indefinitely. Mr. Virgo has presented examples of reformatory terms for possession of a loaded firearm but those also have distinguishing elements. Possession of a loaded firearm frequently justifies a penitentiary sentence of three years or higher despite the absence of any minimum sentence.
[34] It is the similar offender criteria that is more difficult to apply. Of course everyone is an individual but Parliament would not pass a meaningless provision. It must mean at least similar in the general sense of age, and criminal record. Both Nur and Mansingh, for example, had no criminal record. Mansingh was older, 27 years old. In that sense they were similar offenders.
[35] This brings me to Mr. Virgo's statement to his probation officer that he would rather go to jail than be killed. In other words, he expressed defiance toward the prohibition against firearms – he chose his own path to defend himself rather than go to the police.
[36] Mr. Virgo's fear was justified as he was ultimately shot. This was after the offence but demonstrates conclusively that his fear was real. He did not testify and the reason for his fear was only presented through his counsel, though without objection. He had developed a website and posted videos on Instagram and YouTube that offended some in his community. The postings are no longer available and what he was saying is not clear but the submission has created the impression that he was criticizing the way of life of some in his community and some dangerous persons took offence.
[37] I note Mr. Virgo's reason for carrying the gun only to recognize the world that he faces as a young black man in Toronto and how he sees that world. The decision to resort to guns in order to protect yourself from the gun culture cannot be countenanced, it must be denounced. Everyone suffers unless the cycle is broken and at some point, someone trusts the police to protect them. This however is a process and a sentence that does not risk crushing or breaking a very young person can contribute to his rehabilitation and the safety of the community. As long as the sentence is long enough to reflect the seriousness of possessing and abandoning a loaded firearm, it can fulfill the principles of sentencing.
[38] So although Mr. Virgo chose to stay in the community after his successful flight from the police and risk the very thing he feared, his actually being shot, wounded and hospitalized is a relevant fact about him as an offender when comparing his sentence to other sentences for his crime. It is not a situation that one can just create to support a lower sentence. It really occurred to him.
Parity with His Brother
[39] On July 26 I sentenced Mr. Virgo's brother to 1 year and four and one half months in prison in view of 444 days pre-trial custody for possession of the firearm in the back seat of the car. I ruled that the original sentence would have been 3 years and 3 months. Mr. Virgo has pleaded guilty to possession of the same firearm. His brother however, had a youth record and had been found guilty as a young person of robbery with an imitation firearm and placed on probation. And most significantly he was the subject of an order prohibiting him from possessing a firearm. Although the same age as his brother, he had already had the benefit of probation and violated two court orders by his possession of the firearm. And although he fully served a portion of his sentence in pre-trial custody, almost one year and four months of actual time served, he had never sought bail and his sentence will be served in a reformatory.
[40] So although one of the offences is identical, Mr. Virgo is not a similar offender to his brother because he has no record.
Determining a Fit and Proportional Sentence
[41] The penitentiary term that Crown counsel submits is a proportionate sentence would be a fit sentence for the possession of two loaded prohibited firearms with the aggravating factor of running from the police and abandoning the firearm in an area accessible to the public. The Supreme Court of Canada's approval of the trial judge's sentence in Nur and its approval of the Court of Appeal's conclusion that the former minimum penalty of three years would be proportionate for possession of a loaded firearm, which can be characterized as a true crime, establish this.
[42] In setting a range of sentencing, neither the Supreme Court nor the Court of Appeal pronounce on what a sentence should be in any given case other than the one before them. Courts would not do that because as the Supreme Court of Canada has held, sentencing is for the trial judge. In R. v. Lacasse, 2015 SCC 64, the Supreme Court referred to its own decision in R. v. M. (C.A.), and confirmed what it said there, that is:
It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. . . . Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. [para. 92]
And as well, quoting R. v. M. (C.A.), supra at paragraph 55 of Lacasse:
This exercise of ensuring that sentences are similar could not be given priority over the principle of deference to the trial judge's exercise of discretion.
[43] Although a penitentiary sentence, in the range of four years, could be fit for Mr. Virgo, so might a shorter sentence be a fit sentence. It must, following, s.718.1 of the Criminal Code, and Lacasse, be proportional to the gravity of the offence and the responsibility of the offender.
[44] The gravity of Mr. Virgo's two offences is so apparent that little is served at this stage by judges trying to deal with this serious offence by resorting to the metaphors of cancer and plague that some judges resort to. To possess a loaded gun is very grave, to follow the language of s. 718.1 – Justice Campbell described it in R. v. Mark, [2018] O.J. No. 270, by referring to the "sheer gravity of the offence."
[45] Mr. Virgo's responsibility is high. It is not possible to determine for how long he had the Ruger that his brother ran away with or how he came to possess it. But the Browning was in a bag, on the seat where he was sitting and he has, almost defiantly, advised that he was carrying it for self-defence and he would rather go to jail than die. No other criminal activity apart from the possession is established but he is still entirely responsible for travelling with the gun on the street and then abandoning it without regard to what could follow if someone were to find it. But as high as the level or responsibility is, it is attenuated somewhat by Mr. Virgo's reasons for committing the crime.
[46] His fear from threats that he received as a result of his satiric creations was real. His decision to acquire a gun to protect himself warrants nothing but condemnation. But he has established the reason that he made this immature and unacceptable decision, his fear and his belief that the police could not protect him. To state this as attenuating his responsibility is not in any way to condone it. It only involves an understanding of what led to the behavior.
[47] The need to denounce does not displace the principle of rehabilitation even for a serious crime and especially in the case of someone as young as Mr. Virgo. As Justice Green noted in R. v. Zachar, 2018 ONCJ 631, the Manitoba Court of Appeal in R. v. Leask said that:
[T]he transition from statutorily defined young person to adult should not be marked by an immediate abandonment of rehabilitation as the primary goal in cases where the prospect of successful rehabilitation is real. (Emphasis added by Justice Green).
[48] Nor can I ignore the directions in s. 718.2 (d) and (e) of the Criminal Code. I am required to not deprive Mr. Virgo of his liberty, if less restrictive sanctions may be appropriate in the circumstances, and I am to consider all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims and the community.
[49] For offences as serious as this, denunciation and deterrence are the main considerations, even in the case of a youthful first offender: R. v. Mansingh, supra. Denunciation, and particularly deterrence, require that others who may be inclined to commit the offence know about the sentence. Even if that is theoretical, it must be considered. However, as Justice Abella, as she then was in the Ontario Court of Appeal, noted in R. v. Kerr, "The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37." (Kerr p.12)
[50] The Court of Appeal's clear statement that a prison sentence of three years is proportional does not necessarily lead to a conclusion that a shorter sentence could not also be proportional in a particular case. The need for denunciation remains. To state that any particular sentence would not denounce the conduct would be to introduce a new minimum sentence for possession of a loaded firearm. No prison is clearly an inadequate sentence and even Mr. Virgo recognizes that. He pleaded guilty fully expecting to be sentenced to imprisonment and does not argue otherwise.
[51] The risk of imposing a lower sentence in the range, or even a sentence that could be perceived as outside the range, with respect to denunciation is that if the Court does not recognize the seriousness of the offence, public confidence in the administration of justice can be affected. (R. v. Lacasse, supra, paragraph 12). The risk with respect to deterrence is that a young man even contemplating taking possession of a loaded firearm, even a hypothetical young black man that I must assume exists, would be deterred by Mr. Virgo receiving a longer sentence but not by a shorter sentence.
[52] But if a sentence can be fashioned that is long enough and severe enough that it denounces Mr. Virgo's crime and takes into account his particular circumstances then the sentence will address denunciation. And if the sentence will deter Mr. Virgo and someone similarly placed in life to him, then deterrence will be served.
[53] When I consider what Mr. Virgo did from his perspective at the time that he did it, combined with his present acknowledgement of the wrongness and seriousness of his actions, I conclude that he should receive the shortest prison sentence that is reasonable. This is because the fear that he claimed was real; no one could ever use the same circumstances to justify possessing a gun and then be shot subsequent to their crime, demonstrating the legitimacy of their fear. In the unlikely event that that were to occur, a sentencing court would have to address those circumstances as I am addressing these. Mr. Virgo's responsibility is high but it is somewhat diminished by his legitimate fear for his safety. There is a distinction between condoning taking your own self-defence into your own hands and understanding why someone would do that which cannot be condoned.
[54] Mr. Virgo's guilty plea and his accomplishments while on bail, part of it strict house arrest, are mitigating. He completed semester 1 of Grade 11 with a low final mark but above the course median and obtained satisfactory results in all of his learning skills and work habits except for organization and self-regulation. He attended all classes online. He applied for and was admitted to the Culinary Skills program at George Brown College for the fall of 2019, an admission that he will have to defer. He is very young. He was open with the pre-sentence report writer and is the only source of the information that he knew that his brother had the Ruger in the car – without that the only possession that could have been proven would have been momentary possession at some unknown time for some unknown period because of his fingerprint. He has sincerely recognized the gravity of his offence. He has been shot and wounded. He has reached 18 without any criminal record and has complied with the conditions of his release for over one year.
[55] He could use some guidance because his parental guidance has not been strong. He was thrust into a position of caring for his ill father, rather than the reverse that a young man can expect from his father. And his father, it appears, was not a strong role model and his behaviour led to Mr. Virgo being frequently questioned by the police. Although it would be wrong to lower the sentence below a fit and proportional range in order to impose probation, the possibility of imposing probation to promote rehabilitation and protection of society is relevant.
[56] I have concluded that a maximum term of imprisonment in a provincial reformatory, followed by three years' probation is the fit and proportional sentence in this case. The successful year of pre-trial house arrest, plus two years less one day in jail, followed by three years' probation imposes a control over Mr. Virgo for a period of over six years. To the extent that an 18 year old considering acquiring a loaded firearm would consider this sentence, the bail portion, prison, parole if any and probation would deter. I can impose a lifetime weapons prohibition confident that Mr. Virgo will respect it based on his bail compliance and his lack of any record.
[57] The Ruger is a separate firearm and charge. However the possession of both firearms was at the same time and his control of his brother's knapsack was constructive – he knew that the firearm was in the car and he consented. That sentence should be concurrent and identical to the sentence on possession of the Browning.
[58] Mr. Virgo is placed on probation for three years with conditions that I will specify to him.
[59] There will be two orders prohibiting Mr. Virgo from possessing a firearm for life under s. 109 of the Criminal Code.
[60] There will be an order under s. 487.05 for the taking of samples of bodily substance for forensic purposes.
Released: August 7, 2019
Brent Knazan
Ontario Court of Justice