Court Information

Date: July 11, 2019

Information No.: 2611-998-17-25261-00

Ontario Court of Justice

Her Majesty the Queen v. Rasheke Gaynor

Proceedings

Before the Honourable Justice G.R. Wakefield

On: July 11, 2019, at Oshawa, Ontario

Appearances

• J. O'Connor – Counsel for the Crown
• S. Samet – Counsel for Rasheke Gaynor

Reasons for Sentence

WAKEFIELD, J. (Orally):

Convictions

Mr. Gaynor ran a very focused trial, which after ruling on a Garafoli resulted in findings of guilt on:

1. Possession for the purpose of trafficking in powdered cocaine
2. Possession for the purpose of trafficking in OxyContin
3. Possession of a sawed-off rifle contrary to s. 92(3)
4. Possession of a restricted firearm, namely a 9 millimetre handgun, contrary to s. 92(3)
5. Possessing a firearm obtained by a crime contrary to s. 96(1)
6. Possession of a restricted device, namely an over-capacity magazine, contrary to s. 92(3)

A loaded firearm charge was withdrawn by the Crown and the balance of charges were conditionally stayed by the court.

Sentencing Positions

The Crown's starting position is one of three years on the firearms offences and a consecutive one-year on the cocaine. The Crown agrees that any sentence should be less the presentence custody and with credit for bail conditions. The Crown's position on sentencing has already taken into account both totality and the personal circumstances of the defendant in constructing its sentencing position, and is a position which is lower than most of the filed case law pertaining to drugs and firearms.

In a chart, the Crown set out sentencing ranges of comparable charges. Albeit different defendant personal circumstances from three years, seven months to five years as a starting point prior to presentence custody deductions. Unlike some of the cases cited, Mr. Gaynor had two firearms. One altered with ammunition together with a prohibited magazine, albeit unloaded. The drugs were not for personal use, but trafficked in the community, sold for monetary gain.

The defence is seeking a totality of three years, less presentence custody, and credit for bail conditions.

Both Crown and defence conducted themselves professionally in a completely focused proceeding, including the sentencing hearing.

I credit Mr. Gaynor and his instructing counsel to proceed in such a manner which has saved a prodigious amount of court time and judicial resources by foregoing the preliminary hearing and subsequent trial, which could have disrupted the lives of jury members. Such responsible concessions by the defendant should be acknowledged and encouraged.

Facts

The agreed statement of facts filed sets out an investigation resulting in a search warrant seizure for 5.6 grams of powdered cocaine with a value of $560, $2,873.50 cash, four cell phones, and digital scale upon his arrest in the vehicle he was driving; with a subsequent search of the defendant's residence resulting in a seizure of an unloaded but functioning Czech Small Arms .762, a non-restricted rifle with an obliterated serial number and the stock removed, located at the foot of the bed in his bedroom.

Seized from the safe in the bedroom were:

• Two magazines for the rifle, one of which was the prohibited over-capacity magazine
• A functioning DAC 394 9 mm restricted handgun, which had previously been stolen from Windsor, Ontario
• 52 grams of powdered cocaine, valued at $5,200
• 20 OxyContin tablets, valued at $100
• Two boxes of ammunition for the rifle containing 40 rounds
• A Beretta airsoft pellet handgun
• A digital scale
• Personal documents of the defendant

It is common ground that while not an offender high on the criminal organization ladder, he was not a user-trafficker but rather a self-admittedly involved solely for profit. He profited on the weaknesses of his customers, many of whom are among the most vulnerable in our community.

It was agreed as well that while the drugs were for the purpose of trafficking and the defendant did not have the necessary licensing for the firearms, nor did he properly store and secure the firearms. The number of firearms, with the ammunition and even the realistic looking pellet gun animates the consistent connection of drugs and firearms. Why have the firearms if not to use them to kill or maim people if the need arises? Guns and drugs are the most aggravating factors. Deterrence is certainly a predominant factor.

Personal Circumstances of the Offender

The defendant is a 25-year-old Canadian citizen, who does not share any Indigenous background. The presentence report is overall a very positive one for the somewhat youthful, first offender.

The presentence report describes the defendant having been born in Port Antonio, Jamaica. While his self-description of life in Jamaica appears rosy, the reality depicted was a somewhat chaotic one, in which his father and mother were separated, before the father moved to Canada when the defendant was maybe five years old, and then his mother moving to England two years later, leaving the defendant in the care of an older cousin. He lost touch temporarily with his father.

At 12 years of age, he became too much of a responsibility for the cousin and the defendant's mother arranged for him to move to Canada to be with the father he had not seen or heard of for years. The father was working two jobs, so there was not a lot of time together.

When the defendant was either 21 or possibly as young as 16, the father excluded him from the home and was told he was old enough to be on his own. There was some continuing contact between the two, given the search warrant seizures occurred at the father's residence.

Despite these challenges, Mr. Gaynor had the resilience to complete high school and attempt college, despite financial shortages and homelessness. He met his partner and subsequently found a home with her and her mother.

He has an employment history, but what I would describe as being at the low end of precarious job security, which explains the loss of jobs, whether by choice of going to find food for his child, or a down-turn in the economy. He has demonstrated both the willingness and ability to work and to impress his supervisors. The bail conditions certainly placed almost insurmountable barriers to obtaining work while on release.

As his girlfriend describes, Mr. Gaynor was in a tough situation with his responsibilities towards his child and her mother. Unlike his own father, he clearly did not wish to abandon them, and wanted to live up to his responsibilities towards them. As the defendant describes, the criminal choices he made "was never what I saw myself doing." And I should note here that it's my understanding that the money Mr. Gaynor profited from with the drug trafficking was used towards his family and not for self-aggrandizement.

However, the defendant is criminally wrong when he asserts that committing these offences was the only way to survive. There are other choices and he had the ability to work with them, but instead, he opted for a criminal way to make easy money. This was a choice which not only impacts on him, but on his partner and his daughter to their detriment. It was a choice that put the entire community at peril by both guns and drugs.

Mitigating Factors

The mitigating factors I must take into account first and foremost is the positive presentence report. There is a troubled upbringing with a lack not only of a father-figure in his formative years, but as well as being deprived of his mother's presence. Mother appears to have commenced a new life in England with new children. Only recently, as I understand it, has the defendant met (by video call) his half siblings.

Despite these challenges, he has demonstrated the ability to conduct himself in a manner which should not result in any prior record being adduced by the Crown, and strong pro-social values, at least in so far as respecting his partner and child.

According to the police, Mr. Gaynor, despite his economic constraints and personal antecedents, has had the ability to not fall into the trap of gang affiliations.

Indeed, knowing his Charter application had failed, he still attended his court appearances, entered a plea and attended again today, knowing the sentence will necessarily result in a deprivation of liberty.

Throughout the time of his surety release, there are no allegations of breach, nor any allegations of any further criminal behaviour.

Gladue Principles Analysis

Counsel of Mr. Gaynor submitted that I should take into account Gladue-like principles set out in R. v. Jackson, 2018 ONSC 2527; given the systemic injustices, arising solely due to the skin color of citizen, as set out in that judgment. I do not accept that analysis and feel bound by the Ontario Court of Appeal decision R. v. Hamilton, 2004 72 OR (3rd) 1, and the observation of Justice Doherty at paragraph 133 that "Lower sentences predicated on nothing more than membership in a disadvantaged group further neither the principles of sentencing, nor the goals of equality."

It should be remembered that Indigenous Gladue sentencing principles are not an automatic sentence reduction factor but rather a pathway for a sentencing judge to learn of the connections between Indigenous history and the impact on the individual offender to assess moral blameworthiness. Even if the Jackson approach may one day provide a different sentencing insight into the many different communities in Canada, there is not the evidentiary foundation setting out that connection between a disadvantaged group and the choice to commit criminal offences in the case before me and with that regard, as to how sentencing principles might impact the national mosaic.

I do have insight into the life-story of Mr. Gaynor, from both the presentence report and a report from Stuart and Stone's Clinical and Forensic Psychology, setting out the challenges for Mr. Gaynor in his upbringing. Given his pro-social values and support of his partner and her family, he is assessed to be at a low range of risk of reoffending. That assessment would actually be reinforced by the lack of criminal antecedence in his adult lifetime prior to his attendance before me.

While I reject the Jackson analysis in sentencing this offender, and in any event lack an evidentiary foundation which sets out a connection with discrimination in Mr. Gaynor's life, I note that his formative years would appear to be founded in his childhood experiences in Jamaica. I acknowledge I must sentence Mr. Gaynor for charges such as these in a manner which denounces his unlawful conduct and the harm he has created in our community. I also acknowledge that sentencing is for all offenders a very individualistic assessment, which values rehabilitation as a benefit to the community in reducing future harm. Whatever value there may be in general deterrence, the encouragement of rehabilitative measures, is my view, a far greater value to the safety of our community.

Sentencing Decision

In balancing a strong need for denunciatory sentence, with the individual circumstances of the offender and the additional credit for the so tightly focused a proceeding, saving judicial resources in a post-Jordan world, takes me below the position set out by the Crown, but not that quite advocated by the defence.

On the firearms offences: There will be a foundational sentence of two and a half years on each firearm count concurrent.

On the narcotic offences: I note again that guilty plea would be for a first offender, an important mitigating factor that in other cases have resulted in sentences as low as nine months.

In these circumstances Mr. Gaynor, I do indeed sentence him to a foundational nine months on each drug offence concurrent to each other, but consecutive to the firearms offences for a total of three years and three months.

I find that a longer sentence for a first offender with Mr. Gaynor's specific individual circumstances would betray both the totality principle for an individual such as Mr. Gaynor, as well as to undermine his prospects for rehabilitation.

Additionally, a longer sentence may very well be a disincentive to other defendants to proceed as efficiently a trial, as was the case here.

Presentence Custody and Bail Condition Credits

There are 44 real days of presentence custody or the equivalent of 66 days credit, which I reduced from a narcotic offences resulting in a remnant sentence on those charges of six months and 24 days concurrent to each other, but consecutive to the firearms offences.

With respect to the firearms offences, I note that Mr. Gaynor was on a long-term surety release, with terms interfered in his ability to find employment as well as restrict his liberty. Both counsel have submitted that a Downs credit should apply to the sentencing and I agree. Between their two positions, I assessed the credit of five months and reduce the firearms sentence to two years and one month concurrent to each other, but consecutive to the narcotic offences.

The next sentence totality is now 31 months and 24 days. The gravity of the offences demands some penitentiary sentence, even for a first offender such as Mr. Gaynor. But given his individual factors set out above and in his presentence report, risk assessment profile, a sentence totalling at the lower end of a penitentiary sentence is justified in these particular personal circumstances in an individual sentencing analysis.

Additional Orders

As requested by the Crown, and on consent of the defendant, there is an order that Mr. Gaynor provide a sample of his DNA and in any event, and certainly in these circumstances, being in the best interest of the administration of justice.

There is again, on consent, a s. 109 order for life, for all items set out in that section. There will be a forfeiture order of all seized items other than those cell phones agreed upon by counsel.

And, I think it's already been done by defence, if requested by defence, the various documents filed on behalf of Mr. Gaynor should indeed accompany his warrant of committal.

Court Dialogue

THE COURT: Anything further from the Crown or defence with respect to the sentence? And is there a forfeiture order available for the balance of matters? I don't think we did that on the last occasion.

MS. SAMET: I think we did. My notation is that we did and I believe I gave a copy to....

CLERK REGISTRAR: Yes.

MS. SAMET: ...the surety.

THE COURT: We did? Good.

MS. SAMET: That's been completed.

MS. O'CONNOR: Thank you. Nothing further from the Crown's perspective, Sir.

MS. SAMET: Thank you, Sir.

THE COURT: Anything further from defence?

MS. SAMET: No, Sir, thank you.

THE COURT: Mr. Gaynor, you have a challenge in front of you. Frankly, everything I've heard about you, read about you, you have the ability to get through the next period of time in custody, and then rebuild a life for your family. And you have every ability to find a far more productive way of supporting them. Good luck, thank you.

RASHEKE GAYNOR: Is it all right if I get a moment to talk to my girl?

THE COURT: Actually, you're under sentence, sir. I'm sorry.

RASHEKE GAYNOR: Can I give her my phone and stuff?

THE COURT: Give that to counsel and anything else you don't want to take with you.

RASHEKE GAYNOR: Thank you, Sir.

MS. SAMET: Thank you kindly, Your Honour. If I may be excused.

THE COURT: And Madam Reporter, do you do your own transcripts? I'll order a copy of today's reasons with my usual restrictions that it be done by somebody in the building, and that Ms. McCullough can provide to me who is being assigned to it. Thank you.

End of Proceedings