Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-18-00519 Date: 2019-10-21

Between:

Her Majesty the Queen

— AND —

Hakeem Antonio McIntosh

Before: Justice P.N. Bourque

Reasons for Sentence

Released on October 21, 2019

Counsel:

• K. Stewart, for the Crown
• E. Dixon, for the Defendant

BOURQUE J.:

Overview

[1] The defendant pled guilty before me to the offence of "attempting to possess a restricted firearm" pursuant to section 92(3) of the Criminal Code.

[2] The defendant, along with others, attempted to purchase a restricted firearm (Colt 45) from a legal gun owner. The attempted transaction occurred over several days and included communications and meetings with an undercover police officer, but the transaction was not completed as the defendant was arrested at the agreed point of sale with the amount of the cash for the transaction in his pocket.

The Defendant

[3] The defendant has pled guilty and I accept this as a sign of remorse. I also accept the words that he spoke directly to the court as a further expression of remorse, and most importantly, some insight as to how his actions have affected his family.

[4] The defendant comes to court with no criminal record.

[5] A pre-sentence report has been filed. He was 19 years old when he committed this offence. He was born in Canada. His parents are divorced and he lives with his mother and step-father, and on occasion one or more of his 5 siblings. He is single and does not have any children.

[6] He has finished high school, and has attended some post-secondary education. He is now attending a course for "welding training" but wishes eventually to be a clothing designer.

[7] He does not appear to have any significant substance abuse issues.

[8] The probation officer describes that he was cooperative, dressed "professionally" when he attended interviews and is described by his mother as a "polite kid". He appears remorseful for his actions and his family feel that this offence is "out of character" for him.

[9] His mother testified and spoke of the defendant as a child and his difficulties early in school and his father's leaving the home. She also made it very clear how his behavior has affected the family. The total import of this evidence is that this man has significant familiar supports. She impressed me as someone who has suffered greatly for her son's actions and will do her level best to see that he does not re-offend.

[10] He does not have a history of an antisocial lifestyle. He has done community service work. He is going to school and will graduate from a course giving him a trade by December of this year.

Pre-Trial Custody

[11] The defendant has spent 28 days in pre-trial custody, and 42 days with enhanced credit. In addition, he has been on release for 11 months. He has been under strict bail conditions.

Crown Position

[12] The Crown seeks a period of custody of between 12 and 18 months, (less pre-trial custody) to be followed by probation.

Defence Position

[13] The defendant seeks a conditional sentence of 24 months less time served (and credit for strict bail conditions) to be followed by probation.

The Law

[14] The principles of sentence are contained in section 718 of the Criminal Code.

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct; (and the harm done to victims or to the community that is caused by unlawful conduct)

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances (and consistent with the harm done to victims or to the community) should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[15] The Crown points to the very serious nature of "gun violence" and it is clear that if this scheme had succeeded, then it is highly likely that this weapon could have been used to terrible effect in some future criminal enterprise. Stopping the flow of guns to criminal elements is one of the most important crime prevention initiatives. That this weapon is not longer a danger to the members of the community is a great relief; that there are many more guns making their way onto the streets is a matter of great concern.

[16] This offence carries a maximum punishment of 10 years' imprisonment. There is no minimum sentence prescribed. A sentence which includes real custody is well within the range of sentences for other similar offenders in like circumstances for this offence.

[17] The question is whether I can consider a conditional sentence. If I were to sentence this offender to imprisonment it would be a period of less than two years. I find that I can consider this form of sentence.

[18] There is the general principle that youthful young offenders are entitled to a special consideration, in that rehabilitation should always be a consideration, even where there is a serious offence.

[19] The real question is whether the imposition of a conditional sentence is appropriate for this offended in these circumstances.

[20] In R. v. Jackson, 2018 ONSC 2527, the court sentenced a black man with a "serious criminal record" which included crimes of violence and crimes using weapons. The court spent a great deal of time dealing with general issues of systemic prejudice against black persons and their gross over representation in the jails and prisons.

[21] The court took the approach that black persons should have the benefit of an analysis similar to that of first nations people and this should lead to some amelioration of the punishment, taking all of these systemic factors into account. I must say that I whole heartedly agree with Justice Nakatsuru's analysis.

[22] The Court of Appeal has yet to rule on this issue and may do so in the near future. For the purpose of this sentencing I do take into account that black Canadians have been subject to overt and systemic disadvantage, and I also take into account that with regard to this specific individual, the impact of a sentence of custody in a reformatory, could have significant impact upon his potential recidivism.

[23] I must say that if I was only dealing with the matter of specific deterrence, I would not hesitate in giving him a sentence of imprisonment which could be served in the community. The issue here is the matter of general deterrence, that is, must I send this young man to jail in order to deter any other young men who may be inclined to commit this offence?

[24] The Crown has cited several cases to me where sentences of custody for an attempt to obtain a restricted weapon have been imposed. The Crown also admits that most of these cases have distinguishing elements, based upon their very different facts. The defence, in addition to the Jackson case noted above, has also cited some cases where there has been conditional sentences for these offences or indeed very low prison terms.

[25] I have also reviewed the decision of Blouin J. in R. v. Shunmuganathan, 2016 ONCJ 519, where Blouin J. reviews the necessity for general deterrence and states: "a conditional sentence provides: 'severe consequences'".

[26] As a further matter in this case, I note the pre-trial custody (the equivalent of 42 days) and the strict bail conditions of 11 months (for which 60 days would be credited).

[27] In my opinion, the need for general deterrence and denunciation, in the circumstances of this case, do not trump the fact that a conditional sentence of imprisonment will fulfill the deterrence required for this specific individual and provide him with the tools and incentives to significantly reduce the risk of recidivism.

[28] I therefore sentence the defendant to 20-months incarceration to be served in the community. I have given credit for pre-trial custody of 42 days and a further credit of approximately 2 months. Following this conditional sentence, I sentence the defendant to probation for a period of 24 months.

Released: October 21, 2019

Signed: "Justice P.N. Bourque"