Court Information

Ontario Court of Justice

Date: September 24, 2020

Court File No.: York Region – Newmarket 4911-998-19-08210, 4911-998-19-08227

Parties

Between:

Her Majesty the Queen

— And —

Fabian Myrie

Before: Justice Marcella Henschel

Heard on: October 7 and 8, 2019 and September 17 and 24, 2020

Counsel

Melissa Montemurro and Jacob Wilson — counsel for the Crown

Jessica Zita — counsel for the defendant Fabian Myrie

Decision

HENSCHEL J.:

A. Introduction

[1] On October 7, 2019 Fabian Myrie pled not guilty to the charges before the court and his trial commenced that day. A s. 8 Charter application was argued and dismissed, and evidence was heard on October 7 and 8, 2019. On October 14, 2019 Mr. Myrie discharged his lawyer and the trial was adjourned to give Mr. Myrie an opportunity to retain new counsel. Ms. Zita was retained in December 2019 and subsequently dates to continue the trial were set. On March 2, 2020 Mr. Myrie entered guilty pleas to:

• Break and Enter, contrary to s. 348 of the Criminal Code (count #1 on the information)
• Possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code (count #4 on the information); and
• Breach of a firearms prohibition order, contrary to s. 117.01(1) of the Criminal Code (count #6 on the information).

B. Summary of the Facts

[2] On October 11, 2018 in the middle of the afternoon Mr. Myrie broke into a residence in Markham. The home had a security system that alerted the owner's son who was at work, that someone was at his home. After receiving the alert, the owner's son drove home and saw that his basement window was broken. He heard a smash coming from the front of the house, ran to the front driveway, and saw a man, later determined to be Mr. Myrie, jumping out of the second story window of the home. Mr. Myrie fled on foot and the owner's son pursued him. As he was running, Mr. Myrie dropped a bag containing items he had removed from the home. The owner's son lost sight of Mr. Myrie, returned to his residence, and contacted police.

[3] When the police responded to the call the owner's son provided them with the bag dropped by Mr. Myrie which contained three wallets taken from the home. It also contained two bags of cannabis. The owner's son advised that the wallets belonged to his father.

[4] Mr. Myrie was identified as the suspect as a result of video surveillance gathered from the home. The owner's son recognized Mr. Myrie from the video surveillance because they had gone to elementary school together. The quality of the images from the video surveillance were very good, and, as a result, there was strong evidence identifying Mr. Myrie as the person who broke into and entered the home.

[5] On November 1, 2018 officers executed a search warrant on Mr. Myrie's residence. They located a black Versace duffle bag containing a Maverick Model 88-20-gauge pump-action sawed off shotgun that was loaded with three 20-gauge shotgun shells. The duffle bag containing the loaded sawed-off shotgun was in Mr. Myrie's bedroom inside of the closet. The gun was wrapped in a child's blanket. The firearm is a prohibited firearm. The serial number was removed from the firearm.

[6] In the agreed statement of facts, Exhibit 1 on sentence, Mr. Myrie admitted that he committed the break and enter and that he was in the possession of the firearm and ammunition.

[7] Mr. Myrie has never had a license to possess firearms and did not possess a registration certificate for the firearm seized by the police on November 1, 2018.

[8] On November 1, 2018, Mr. Myrie was bound by a probation order which prohibited him from possessing weapons including firearms. The probation order commenced on June 26, 2017 and was for a period of two years.

[9] Mr. Myrie admits that he was in breach of the probation order by being in possession of the firearm and ammunition seized from his bedroom closet.

[10] At the time of the offence, Mr. Myrie was also bound by a lifetime s. 109 firearms prohibition order. The prohibition order was imposed on June 26, 2017 in Oshawa, Ontario as a result of convictions for two counts of armed robbery. Mr. Myrie admits that he was in breach of the prohibition order on November 1, 2018.

[11] Mr. Myrie was arrested on November 1, 2018 and has been detained in custody since his arrest.

C. Personal Circumstances of Mr. Myrie

[12] Mr. Myrie was 20 years old at the time of the offences. He is now 22 years of age. He was born in London, England. His mother resides in England. His father suffered from multiple sclerosis and passed away when he was eight years-old. His mother was unable to care for him and he was placed in the care of the British Children's Aid Society, until he was placed in the care of his aunt and his cousin, Sionette Ottey. Mr. Myrie came to Canada when he was four years-old with his aunt and cousin. He travelled yearly to visit his mother in England until he was 15 years-old. Ms. Ottey advised the author of the pre-sentence report that Mr. Myrie did well in school until he began to spend time with friends who had a negative influence upon him in high school and came into conflict with the law.

[13] Mr. Myrie has a younger brother, Daniel Myrie, who he is close to. Daniel also grew up in the care of his cousin and aunt. Daniel is attending college and remains supportive of Mr. Myrie.

[14] As a result of the offences, Mr. Myrie's relationship with Ms. Ottey has become strained and she is not willing to have Mr. Myrie return to her home. She was very upset that he stored a firearm in her home, where her young daughter lived, without her knowledge or consent.

[15] Ms. Ottey expressed the concern that Mr. Myrie may suffer from undiagnosed mental health issues because of mood swings both she and his brother have observed. Both Ms. Ottey and Daniel Myrie indicated that Mr. Myrie has never displayed anger or violence to anyone in his family.

[16] Mr. Myrie attended high school in Markham but dropped out of school with only two credits outstanding to graduate.

[17] Mr. Myrie suffers from Keratoconus, an eye condition that impacts his vision. Symptoms include blurry vision which can lead to the degradation of the cornea and loss of vision. Treatment for the condition includes surgery and use of specialized contact lenses. Mr. Myrie underwent surgery in 2018 but as a result of his arrest for these offences was unable to follow-up with necessary medical appointments.

[18] Mr. Myrie's most recent employment was at a printing shop where he printed pictures on t-shirts. Prior to that his employment history was limited. His eyesight problems have contributed to his minimal employment history.

[19] Mr. Myrie denied any drug or alcohol abuse problems but acknowledged smoking marijuana on a regular basis. His cousin suspected that he may have a drug problem and was concerned that chronic marijuana use may have affected his personality and behavior.

[20] Hibak Jama, probation officer and author of the pre-sentence report, indicated that Mr. Myrie was not cooperative during the completion of the pre-sentence report. He spoke to Ms. Jama briefly about the offence but then terminated the interview. He refused to provide any collateral contacts. Mr. Myrie informed Ms. Jama that he regretted his actions and wished he had not committed the offences. He explained that he broke into a random house to steal not knowing if the occupants of the house were home. He advised that he did not have a weapon on him. He said that he did not consider the potential consequences of his actions. He acknowledged stealing a wallet and dropping it on his way home. Mr. Myrie advised Ms. Zita that he received the gun from a friend.

D. Prior Criminal Record

[21] For a young man Mr. Myrie has a lengthy and serious criminal record including the following entries:

• On June 30, 2015 he was convicted as a youth of armed robbery using a firearm and dangerous driving. A two-year intensive support program and supervision order was imposed together with two years' probation, a two-year driving prohibition, and a weapons prohibition for 2 years.

• On November 19, 2015 he was convicted of three counts of fabricating evidence and was placed on probation for 18 months.

• On June 26, 2017 he was convicted of two counts of armed robbery using a knife, two counts of disguise with intent, and two counts of failing to comply with a recognizance. On appeal his sentence was varied from 3 years and 4 months, to 2 years and 5 months less 20 months of pre-sentence custody.

• On August 15, 2018 he was convicted of public mischief and received a suspended sentence and 12 months' probation.

[22] In respect of the June 26, 2017 conviction, in reducing the original sentence the Court of Appeal held that the original sentence did not reflect the principles in R. v. Borde (2003), 172 CCC (3d) 225 (Ont. C.A.) that the length of a first penitentiary sentence for a youthful offender should, where possible and appropriate, be the shortest possible. The Court of Appeal also held that the sentence did not adequately reflect the early plea and show of remorse, or the failure to provide treatment for his degenerative eye condition while in custody. Like the 2017 convictions these offences are serious, however, unlike the 2017 convictions this will not be Mr. Myrie's first lengthy term of imprisonment.

E. Position of the Parties

[23] The Crown submits that the appropriate sentencing range for the offences is 6 to 8 years in the penitentiary, less credit for pre-sentence custody. The Crown submits that the sentence should be apportioned as follows:

• 4 to 5 years for possession of a loaded prohibited firearm contrary to s. 95;
• 1-year consecutive for breach of the prohibition order contrary to s. 117.01(1) of the Criminal Code; and
• 1 to 2 years consecutive for the break and enter charge contrary to s. 348(1)(d) of the Criminal Code.

[24] The defence submits that a global sentence of 4 years, less credit for pre-sentence custody should be imposed, apportioned as follows:

• 2.5 years for possession of a loaded prohibited firearm contrary to s. 95;
• 6 months consecutive for breach of the prohibition order contrary to s. 117.01(1) of the Criminal Code; and
• 12 months consecutive for the break and enter charge contrary to s. 348(1)(d) of the Criminal Code.

[25] In respect of the pre-sentence custody the parties agree that Mr. Myrie should receive credit for 694 days on a 1.5 to 1 basis for the period spent in-custody between November 1, 2018 and September 24, 2020. This equals a credit for 1,041 days.

[26] The defence further submits that Mr. Myrie should be given an additional 326 days credit for the harshness of the conditions of his detention in accordance with the principles established in R. v. Duncan, 2016 ONCA 754. The defence tendered a letter from the Central East Correctional Centre, Exhibit 6, which established that during the period of pre-sentence custody on 39 occasions Mr. Myrie was locked down for a period less than 6 hours. On 178 occasions he was locked down for a period of 6 hours or more. The total lockdown time for the period is 1696.50 hours. The letter indicates that Mr. Myrie was triple bunked on three days. The defence submits that, having regard to the period of lockdown, the court should give credit to Mr. Myrie for 217 days on a 1.5 to 1 basis for a total additional enhanced credit of 326 days. When added to the credit for pre-sentence custody this would result in a total credit of 1,367 days.

[27] The Crown agrees that Mr. Myrie should be granted enhanced "Duncan" credit for the period of pre-sentence custody but submits that only 73 days of enhanced credit should be given. The Crown proposes this amount based on a calculation of the number of days that 1696.50 hours equals, plus three days for the period Mr. Myrie was triple bunked, credited on a 1 to 1 basis.

F. Governing Statutory Provisions

[28] According to s. 718 of the Criminal Code, 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 "just sanctions" that have one or more of the following objectives, namely:

(a) to denounce unlawful conduct;

(b) to deter the offender and others 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 the community; and

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

[29] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[30] Section 718.2 of the Code dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

(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;

(c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[31] The maximum sentence for possession of a loaded prohibited firearm contrary to s. 95 is 10 years. In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada struck down the mandatory minimum sentence of three years.

[32] The maximum sentence for break and enter of a dwelling house contrary to s. 348(1)(d) is life imprisonment.

[33] The maximum sentence for breach of a prohibition order contrary to s. 117.01(1) is 10 years.

G. Governing Legal Principles and Range of Sentence

[34] Gun crime is a matter of grave and growing public concern. Guns are designed to cause serious injury and death. Guns such as the one seized in this case are inherently dangerous and present an ultimate threat of death to those in their presence. A sawed-off shotgun serves no legitimate purpose. This is a "true crime" offence. In R. v. Nur, 2015 SCC 15, the Supreme Court of Canada emphasized that illegal firearms are primarily found in the hands of criminals who use them to intimidate, wound, maim and kill.

[35] Sentences imposed for firearms offences must further denunciation, deterrence and protection of the public. Appellate Courts have stressed that public protection can only be achieved through sentences that ensure that potential offenders know that their illegal possession of loaded handguns will be accompanied by serious penal consequences. The Ontario Court of Appeal has made clear that to combat the serious threat firearms pose to the community such offences must be met with exemplary custodial sentences that proportionally reflect the gravity of the crime and which appropriately stress the need to denounce and deter such crimes. The principles of denunciation and deterrence must be paramount in fixing an appropriate sentence. (R. v. Smickle, 2014 ONCA 49, at para. 18; R. v. Nur, 2013 ONCA 677, at para. 206, affirmed 2015 SCC 15; R. v McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ), at paras. 21-25).

[36] While the principles of denunciation and deterrence predominate, the principle of rehabilitation is still an important factor to be considered, particularly in the case of a 22 year-old offender. McKenzie, at para. 25.

[37] In Smickle, at para. 19, the 27 year-old first offender was convicted of possession of a prohibited firearm with ammunition. He was in an apartment taking a picture of himself holding the handgun when the police entered the apartment to execute a search warrant. He dropped the gun, which was loaded. The trigger was cocked. The Ontario Court of Appeal found that the conditional sentence imposed by the sentencing Judge was manifestly unfit. The Court of Appeal held that most s. 95 offences will attract a penitentiary term and that even less serious versions of the offence will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.

[38] Notably, in Nur, after striking down the mandatory minimum sentence the Supreme Court of Canada upheld a three-year and four-month sentence for a nineteen year-old first offender. The accused was in possession of a loaded firearm in a community centre and discarded it in a public place when chased by police.

[39] In R. v. Prosser, 2014 ONSC 6466, affirmed 2016 ONCA 467, upon execution of a search warrant the police located a loaded prohibited handgun, money, 81 grams of cocaine, and drug paraphernalia in the apartment the youthful first offender shared with his mother and grandmother. The accused was convicted following a trial of a number of firearms offences including possession of a loaded prohibited firearm, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. The sentencing judge imposed a 2-year sentence for the s. 95 offence and the other firearms offences, and six months consecutive for the drug related offences, for a global sentence of 2.5 years less credit for pre-sentence custody and 2 years' probation. On appeal, at para. 29, the Court dismissed the offenders appeal against sentence observing that the sentence was lenient in light of the serious offences for which he was convicted.

[40] In R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370 (SCJ), the accused pled guilty and was sentenced to 3.5 years in prison for possession of a loaded prohibited firearm. The firearm was not traced to other offences. Browne had a substantial gap in his criminal record and the court found he had good rehabilitative prospects.

[41] Similarly, in R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ) the 33-year-old offender was sentenced to 3 years imprisonment for possession of a loaded prohibited firearm and 6 months consecutive for breach of a weapons prohibition order contrary to s. 117.01(1). As in this case, the firearm was located when the police executed a warrant on the offender's home. The court found that the offender was engaged in "true" criminal activity. "He secured and secretively stored a loaded handgun in the bedroom of his apartment, where he lived with his family" for reasons that he chose not to disclose. He had prior convictions for non-violent offences, a stable employment history, and a support network.

[42] In R. v. Duale, [2014] O.J. No. 3030 (SCJ), the 20-year-old accused was sentenced to 4 years in custody for possession of a loaded prohibited handgun. The offender was subject to a firearms prohibition. There was evidence that he had shot the firearm.

[43] In R. v. Jean, 2015 ONSC 9, varied by 2016 ONCA 137, following a trial the sentencing Judge imposed the equivalent of a 4.5-year sentence (less pre-sentence custody) on the 30-year-old offender for possession of a loaded restricted handgun. The handgun was found in a shoebox under a bed in the offender's home that he shared with his partner and young children. The offender had an extensive criminal record including a prior conviction for robbery and unauthorized possession of a restricted weapon. There was no evidence that the firearm was used by the offender or that it was connected to other offences. The sentence was varied on appeal due to an error in the determination of credit for pre-trial custody. However, the Court of Appeal found that, having regard to the offender's lengthy criminal record, the 4.5-year sentence was "well within the appropriate range".

H. Aggravating and Mitigating Factors

Aggravating Factors

[44] There are a number of aggravating factors. Although Mr. Myrie was not found in possession of the firearm in a public place and there is no evidence that he possessed the firearm in conjunction with the commission of other offences, the offence constituted a "true crime" possession of a firearm. This is not a circumstance, as described in Nur, where the conduct is closer to that of a regulatory offence. This was not a hunting firearm stored close to ammunition. There is no legitimate purpose for a sawed-off shotgun with the serial number removed. It is an instrument of crime.

[45] A consecutive sentence will be imposed for the offence of breaching a prohibition order and as a result the breach of the order should not be treated as an additional aggravating feature of the s. 95 offence. However, the existence of the prohibition order informs the nature of the offence. Mr. Myrie not only had no legal authorization to have the firearm, he was also prohibited from possessing any firearm under any circumstances in any place. He was subject to a prohibition order and a probation order, both of which prohibited him from the possession of firearms. These features of the offence make clear that the offence is not one that is at the low end of the spectrum described in Nur.

[46] Further, the firearm was stored on the floor in the closet of Mr. Myrie's bedroom, in a duffle bag wrapped in a child's blanket. It was carelessly and dangerously stored and was accessible to everyone in the home including Ms. Ottey's eight-year-old daughter. The loaded firearm was in no way secured. It is an inherently dangerous weapon capable of instantly causing grievous bodily harm or death. The fact that Mr. Myrie stored the firearm in his cousin's home without her knowledge represented a significant breach of her trust and posed a specific and general public safety risk. In this case, the nature of the possession was deliberate and ongoing. It was not momentary.

[47] In addition, Mr. Myrie has a related and serious prior criminal record including his conviction as a youth for armed robbery using a restricted prohibited firearm. Furthermore, the offences were committed while Mr. Myrie was on probation, an order put in place only two months before the commission of the offences.

[48] The ongoing prevalence of gun crime and the devastating consequences of offences involving firearms are important aggravating factors as described above.

[49] In respect of the breach of the firearms prohibition order, it is aggravating that Mr. Myrie was on two orders that prohibited the possession of weapons, the prohibition order, as well as a condition of probation that prohibited the possession of weapons. Mr. Myrie has a history of non-compliance with court orders. He has five prior convictions for breaches of court orders.

[50] Finally, in respect of the break and enter, the break and enter was committed in respect of a home. Although I did not have the benefit of a victim impact statement such offences represent a significant invasion of privacy and undermine a homeowner's sense of safety and security within the home.

[51] Mr. Myrie caused minor damage to two windows of the home. Mr. Myrie advised the author of the pre-sentence report that he did not consider the consequences of his actions and what might occur if the occupants of the home were at the house. While Mr. Myrie was in the home the owner arrived home in response to the alarm and chased Mr. Myrie. This created a risk of confrontation.

Mitigating Factors

[52] There are a number of mitigating factors. There are also personal factors that are relevant to the assessment of Mr. Myrie's moral culpability and moral blameworthiness. As the presentence report and submissions of counsel establish, Mr. Myrie is a youthful offender, who has been subject to difficult life circumstances. He had a difficult early childhood, including the loss of his father and separation from his mother. Mr. Myrie became a foster child for a period of time before he went to live with his cousin and aunt who provided his brother and him with a more stable and loving home environment.

[53] In addition, Mr. Myrie suffers from a degenerative eye condition, keratoconus which has had a significant impact on his vision and has created an additional challenge for him to overcome in succeeding in school and in securing employment. Finally, Mr. Myrie is now subject to a deportation order, and, if deported, faces the reality that he will start a new life in a country where he has not lived since he was a child. Ms. Zita advises that Mr. Myrie may be held to warrant expiry as a result of the deportation order.

[54] Mr. Myrie is entitled to the mitigating effect of his guilty plea through which he has accepted responsibility for the offence. Mr. Myrie also accepted responsibility for his actions in the pre-sentence report. The mitigating effect of the guilty plea is somewhat attenuated as this was not an early guilty plea. It occurred mid-trial.

[55] In terms of rehabilitative prospects, Mr. Myrie has accumulated a serious and lengthy criminal record at a young age. By bringing a gun into his home, he breached his cousin's trust and has lost his cousin's support at this time. However, Mr. Myrie continues to have the support of his brother.

[56] There is a realistic prospect that Mr. Myrie can further his education and could graduate from high school while in custody. He has only two credits left to complete and was a good student before he began missing classes and associating with friends who had a negative influence on him.

[57] Mr. Myrie's brother has described him as a quiet, kind, and good-hearted person. His cousin indicated in the pre-sentence report that he never displayed any anger towards anyone in his family.

[58] Ms. Ottey expressed the belief that Mr. Myrie's criminal associations and possible drug use were at the root of his ongoing involvement in criminal behavior. If Mr. Myrie chooses to seek and engage in counselling for drug use and individual counselling, this may assist him to succeed following his release. He has previously been referred to substance abuse counselling and individual counselling by probation but only attended the initial appointment because he was arrested for the current charges.

[59] In my view, despite the challenges Mr. Myrie will face upon his release from custody there are still many reasons to be hopeful about his rehabilitative prospects. Mr. Myrie is a youthful offender and he can choose to take his life in a different direction upon his release.

[60] I note that while the unlawful possession of a loaded firearm is always a serious matter some of the more aggravating features of some s. 95 offences were not present in this case. The firearm was not in Mr. Myrie's possession in a public place or discarded in a public place. The firearm was stored in a personal residence. There is no evidence that the firearm was facilitating other criminal conduct such as drug trafficking.

[61] The defence has submitted that I should treat Mr. Myrie's assertion through counsel that he had the gun for self-protection as a mitigating factor. I am not satisfied that the assertion that he possessed the gun for self-protection has been established by evidence on a balance of probabilities. Mr. Myrie did not tell Ms. Jama that he had the gun for self-protection, rather he said that he was storing the gun for a friend. Through counsel he clarified that he obtained the gun from a friend but was not storing it for them.

[62] Even if I were to accept that Mr. Myrie had the gun for self-protection, I agree with the sentiments expressed by Justice Trotter in R. v. Power, 2007 ONCJ 619, at para. 25, that to afford leniency to those who arm themselves with handguns for the purpose of self-protection would "turn the firearm provisions of the Criminal Code on their head and exacerbate a very serious social problem". "The belief that a gun is an effective and legitimate means of self-protection is one that must be rejected, clearly and absolutely". Such a mindset inevitably leads to use of firearms and loss of life. (Power, at para. 24 citing Nordheimer J. in R. v. Grant, [2005] O.J. No. 4599 (SCJ), at para. 35).

[63] The assertion that Mr. Myrie required a gun for self-protection cannot be allowed to in any way justify his possession of a loaded sawed-off shot-gun in his home that exposed his family members and others to a real and significant danger.

[64] Having regard to the aggravating and mitigating circumstances, the established range of sentence, and the governing principles of sentencing, a global sentence of 4.5 years should be imposed. In my view, a sentence of 3.5 years is warranted for the possession of the loaded prohibited firearm, a consecutive sentence of 6 months is warranted for the breach of the firearms prohibition order, and a consecutive sentence of 6 months for the break and enter of the dwelling house is appropriate. While the break and enter of the dwelling house standing alone could have justified a lengthier sentence, in my view, having regard to the principle of totality, a six-month consecutive sentence for the break and enter charge, in conjunction with the other sentences, results in a fit global sentence.

I. Credit for Pre-sentence Custody

[65] As set out above, in accordance with s. 719(3) and (3.1) of the Criminal Code, the parties agree that Mr. Myrie should be given credit for the pre-sentence custody on a 1.5 to 1 basis resulting in a credit of 1041 days. As indicated by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, such credit for presentence custody is premised on both a quantitative rationale, relating to loss of access to early parole and early release during presentence periods, and a qualitative rationale, that conditions within a remand facility may be harsher than in the facility where an offender will serve their sentence.

[66] The defence submits that Mr. Myrie should also receive an enhanced "Duncan" credit of 326 days for the harshness of his pre-sentence custody which included 217 days that Mr. Myrie was on lockdown for varying periods of time, as set out above. In Duncan the Ontario Court of Appeal held that additional or enhanced credit may, not must, be given to mitigate particularly harsh jail conditions.

[67] The Crown fairly concedes, and I accept, that Mr. Myrie should receive some enhanced credit in accordance with the principles expressed in Duncan. Although Mr. Myrie did not give direct evidence of the impact of the lockdown periods upon him, the evidence establishes that he has suffered adverse affects flowing from the lockdowns and the pandemic. I accept that his eye condition has deteriorated. Mr. Myrie had issues with his eyes while in custody including an ongoing need to have his eyes flushed. He experienced challenges with opening his eyes. An appointment with an ophthalmologist was cancelled due to Covid-19 because it was deemed not to be urgent. Mr. Myrie requires special lenses which he was not able to access while he was in custody. Mr. Myrie's eye surgery occurred shortly before his arrest and he was waiting for his eyes to heal from the surgery before obtaining the lenses he required.

[68] Mr. Myrie is not seeking any additional reduction in his sentence due to the impact of the pandemic upon his pre-sentence custody. However, the conditions of his pre-sentence detention, including the lockdowns in the context of the ongoing pandemic, impacted his ability to access ongoing treatment for his degenerative eye condition. Having regard to his personal medical circumstances, the evidence of the significant periods of lockdown, and the fact that Mr. Myrie's period of pre-sentence custody was extended due to the pandemic, in my view Mr. Myrie should be given enhanced credit of 73 days, as proposed by the Crown.

J. Disposition

[69] Mr. Myrie is sentenced to a global sentence of 4.5 years (1,642 days) in the penitentiary attributed as follows:

• 3.5 years (1,278 days) for the s. 95 possession of a loaded prohibited firearm offence;
• 6 months (182 days) consecutive for the breach of the prohibition order contrary to s. 117.01(1); and
• 6 months (182 days) consecutive for break and enter into a dwelling house offence, contrary to s. 348(1)(d) of the Criminal Code.

[70] Mr. Myrie is entitled to credit for pre-sentence custody on a 1.5 to 1 basis resulting in a credit of 1041 days. I have determined that he should be given credit for an additional 73 days as a result of the harsh conditions in pre-sentence custody. This results in a total credit of 1,114 days. This means that Mr. Myrie has 528 days left to serve.

K. Ancillary Orders

[71] In addition, under s. 109 Mr. Myrie is prohibited for life from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance.

[72] Break and enter into a dwelling house is a primary-presumptive offence under s. 487.04 of the Criminal Code and, as a result, Mr. Myrie is required to provide a sample of his DNA in accordance with s. 487.051(2) of the Criminal Code. Possession of a loaded prohibited firearm and failure to comply with a prohibition order are secondary designated offences. Having regard to Mr. Myrie's extensive and serious criminal record, the serious nature of the offences, the circumstances surrounding their commission, and the limited impact the order will have on his privacy, I am satisfied that it is in the best interests of the administration of justice to require him to provide a DNA sample in accordance with s. 487.03(b) of the Criminal Code.

The Terms of the Probation Order

[73] Upon his release, Mr. Myrie will be subject to a two-year term of probation. This will include the statutory terms outlined in s. 732.1(2) of the Criminal Code. Mr. Myrie shall be subject to the following additional terms:

• Report to a probation officer in person or over the phone within two working days of his release from custody, and thereafter as directed by the probation officer;

• Reside at a place approved of by a probation officer and not change that address without obtaining the consent of the probation officer in advance;

• Do not attend within 500 meters of 120 Madison Heights, Markham, Ontario;

• Attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer for substance abuse and such other counselling as directed;

• Sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed; and

• Provide proof of attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Released: September 24, 2020

Signed: Justice Marcella Henschel