R. v. Bogle, 2021 ONCJ 24

Court File No.: Central East Region: Oshawa Court 19-34100 Date: 2021-01-15 Ontario Court of Justice

Between: Her Majesty the Queen And: Zephaniah Bogle

Before: Justice Peter C. West

Heard on: February 4, 2020 and October 28, 2020 Reasons for Judgment released on: January 15, 2021

Counsel: G. Hendry, for the Crown A. Vaughan, for the accused Zephaniah Bogle

WEST J.:

Introduction:

[1] Zephaniah Bogle pleaded guilty on February 4, 2020, to possession of restricted firearm, contrary to s. 95(1)(a) of the Criminal Code and possession for the purpose of trafficking in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act. The matter was adjourned for the preparation of a pre-sentence report, now Exhibit 1. Sentencing was adjourned because of the Covid-19 pandemic. I heard counsel’s submissions on October 28, 2020, and sentencing was adjourned to allow Mr. Bogle to complete four courses he was taking at Centennial College in Electrical Technology.

[2] The facts of this case were quite brief. On March 5, 2019, police officers executed a search warrant at Apartment 211, 1700 Simcoe Street North in Oshawa, just before 8:30 a.m. During that search police located a Sturm Ruger & Co. Inc. 45 calibre handgun, which was a restricted handgun with 8 rounds in its magazine. It was found in a night table in Mr. Bogle’s bedroom. The handgun had never been fired and was not connected to any other crime. Also located in the closet of the bedroom was 19.5 grams of cocaine in 5 separate baggies, worth $1950.00 if sold on the street. Also located by the cocaine was $475 Cdn currency.

Position of the Parties

[3] The Crown is seeking a total sentence of three (3) years having regard to Mr. Bogle’s guilty plea, no criminal record, the saving of court time and the positive pre-sentence report. The Crown points to the fact this is a “true crime” type offence, not a regulatory-type offence committed by someone who has the proper firearms certificates and licenses. The quantity of cocaine is not large but is likely around a half an ounce once one accounted for the weight of the plastic baggies. The Crown felt the drug charge could either be concurrent to a 3 year sentence for the possession of a restricted weapon or if consecutive sentences were imposed, two and a half years for the gun charge and 6 months consecutive for the possession for the purpose charge. The Crown recognized that Mr. Bogle was entitled to some reduction of sentence pursuant to R. v. Downes, having regard to the fact Mr. Bogle had been on house arrest since he was charged, just over 22 months.

[4] Mr. Vaughan for the defence submitted that because Mr. Bogle was a youthful first offender and had never before served a custodial sentence; a proportionate sentence, after giving some credit for the house arrest restrictive bail, would be two years less a day in the reformatory, together with two years of probation with terms. Mr. Vaughan pointed to Mr. Bogle’s guilty plea, his acceptance of responsibility without a preliminary hearing or trial, the fact he has not been in any further difficulty with the police, abided by stringent bail terms during a pandemic, went back to school to become an electrical technician and his positive pre-sentence report, as all supporting such a sentence.

Circumstances of the Offender

[5] Zephaniah Bogle is 22 years of age, living with his mother and currently attending Centennial College taking Electrical Technology. He was 20 years of age when he committed the two offences.

[6] He has no previous youth court or criminal record. He has three maternal siblings and six paternal siblings. His parents divorced when he was young, and he primarily resided with his mother. His mother is a personal support worker and his father is a property manager. He initially lived in Ajax, but his mother moved to Courtice where he was the only person of colour in the schools he attended. Unfortunately, much of his school experience involved bullying and racial prejudice. Growing up he did not get along with his maternal siblings but that has changed as he become older. He did not have much contact with his father growing up because his father lived in the west end of Toronto and he lived in Courtice.

[7] He has been living with his father since he was released on bail. His mother wanted his father to act as his surety because his father, as a property manager, would be better able to supervise their son. As a result of this arrangement Mr. Bogle has redeveloped and improved his relationship with his father and they have become much closer.

[8] Mr. Bogle completed his high school at four different schools in Bowmanville. He had problems in school because of the bullying and he got into fights and was suspended or expelled as a result. In Grade 12, he participated in a program that allowed him to complete college level electrical and plumbing credits. He did not attend post-secondary education after completing high school. He took an upgrade in his math at an alternative school starting in January 2020, and has since enrolled at Centennial College in the fall of 2020. He completed four credits in December 2020 towards.

[9] At birth Mr. Bogle was diagnosed with a severe case of Cerebral Palsy. His mother was told he would not live past 25 years. He had difficulty managing his emotions especially if he was angry or upset as a result of this disease. He was placed in specialized classes for children with physical or developmental challenges when he was in Grade 3 and 4. He was also placed on an Individual Education Plan while in elementary school. His mother confirmed her son’s difficulties with bullying at school and recounted an instance when he was in Grade 12 when a number of adult men, who were not students at his school, attacked him and he sustained a severe eye injury.

[10] His mother confirmed Mr. Bogle enrolled in the math course to complete his high school in January 2020, and attend college, which he started in September 2020. Exhibit 2 was the transcript of the four courses Mr. Bogle was taking at Centennial College and completed in December 2020. In addition, Mr. Bogle took a youth employment program in 2019 after his arrest.

[11] Mr. Bogle has worked at a number of different jobs as a general labourer. He worked from April 2019 until June 2019 as a linesman at a factory. In the fall of 2019 he worked for eight weeks as a “masker” at an automotive manufacturer, but this ended when the company closed in December 2019.

[12] Mr. Bogle was described by the probation officer as cooperative and forthcoming during the preparation of the pre-sentence report. He denied any gang affiliations and the probation officer confirmed this with Toronto Police Services. Mr. Bogle described getting involved selling drugs because he could not get employment sufficient to support himself with a place to live, buy food and pay his bills. Mr. Bogle welcomed community supervision as being able to assist him in pursuing school and employment.

[13] Ms. Hopkinson, Zephaniah’s mother, described how his anger has been a concern in the past, stemming from the bullying and his eye injury, which affected his employability. She sees a need for her son to receive counselling in this area. Mr. Bogle’s father advised he has observed a significant improvement over the last year with his son. He no longer sees the anger he saw in his son when he was first charged, and his son is now much more patient.

[14] It was the probation officer’s opinion that “rejection and the lack of effective coping mechanisms and problem-solving skills appears to be the motivating factor behind [Mr. Bogle’s] offending behaviour.” Mr. Bogle benefits from a supportive relationship with his mother, his maternal siblings and has been developing a closer relationship with his father, who has acted as his surety since his release from custody and who he has lived with since March 12, 2019. It was the probation officer’s opinion Mr. Bogle would benefit from therapeutic and potentially medical intervention to address concerns regarding his anger and any potential mental health issues. Further, she believed Mr. Bogle would benefit from programming that reinforces positive decision making and examines how his thoughts and attitudes direct his behaviour. Finally, the probation officer was of the opinion that Mr. Bogle was a good candidate for community supervision given the fact he was a youthful first offender.

Aggravating and Mitigating Circumstances

[15] In considering what is a proportionate and fit sentence for Zephaniah Bogle I must consider the mitigating and aggravating circumstances.

Aggravating Circumstances

[16] The Crown pointed to the fact that the restricted firearm possessed by Mr. Bogle was loaded with an oversized magazine, which is an aggravating circumstance. The handgun was found in a night table in his bedroom. Also found in the closet of this same bedroom was an amount of cocaine (19.5 grams) that was indicative of possession for the purpose of trafficking. This is also an aggravating circumstance. Although there were no facts provided by the Crown as to Mr. Bogle’s reasons for his possession of the loaded restricted firearm it is clear it was to facilitate his illegal possession of drugs and perhaps for protection for his involvement in the drug trade. The officer-in-charge told the probation officer Mr. Bogle was a “low to mid-level drug dealer.” It is my view Mr. Bogle is a street level trafficker in cocaine having regard to the quantity of cocaine found in his possession. I am bound by the Court of Appeal, to impose an exemplary sentence, particularly having regard to the combination of drugs and a handgun. As our Court of Appeal held in R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250 (C.A.), at paras. 11-13:

[16] 11 The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.

12 These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532.

13 The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[17] The Court of Appeal held in R. v. Nur, 2013 ONCA 677, that the three-year minimum penalty imposed by s. 95(2)(a)(i) of the Criminal Code was contrary to the Charter and of no force or effect by virtue of s. 52 of the Constitution Act, 1982: Nur at paras. 205, 207; see also R. v. Smickle, 2013 ONCA 678, [2013] O.J. No. 5070 (C.A.) at paras. 4, 33, 35. The Court in Nur concluded that the mandatory minimum sentence provisions are contrary to s. 12 of the Charter and is not saved by s.1. Therefore the three-year mandatory minimum for possession of a firearm does not apply to Mr. Bogle's conviction with respect to the s. 95(1) offence.

[18] Despite this finding, the court went on to conclude as follows, at para. 206:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite mitigating factors, could well have received a sentence of three years.

[19] There can be no doubt that Mr. Bogle’s possession of the loaded restricted firearm demonstrates he was engaged in truly criminal conduct and posed a real danger for deadly consequences, particularly when his possession was related to his involvement in the trafficking of cocaine.

Mitigating Circumstances

[20] Mr. Bogle entered a guilty plea at a very early date before setting a preliminary inquiry or trial. These were very serious charges, yet I was advised by Mr. Vaughan his client had always instructed him to resolve these charges by way of a guilty plea. Mr. Bogle accepted responsibility for his actions by his guilty plea and did this without any guarantee of the sentence he would receive. These are particularly significant mitigating circumstances.

[21] Mr. Bogle is a youthful first offender who has never been in any difficulty with the police previously and does not have a youth court record or criminal record, despite having to deal, from an early age, with racist prejudice and being bullied in elementary school and high school. He was diagnosed at birth with Cerebral Palsy, which his mother was told he would not likely survive beyond the age of 25. Although his parents divorced when he was quite young and he did not have a great deal of contact with his father, it is clear from the PSR that his strong relationship and support from his mother, who advised her son was raised in the church, provided him with a solid foundation during his formative years. Unfortunately I was not provided a great deal of insight into what factors caused Mr. Bogle to become involved in the serious criminality he did. The added support he has found by his renewed relationship with his father who he has lived with since his release from custody on very restrictive bail conditions, including house arrest, is also a very positive circumstance. He has a supportive family, which includes his mother and father, as well as his siblings, who will be of great assistance to his continuing to pursue his education and ultimately become a fully contributing member of the community.

[22] When I asked Mr. Bogle if he wanted to say anything to me before I passed sentence he said, “What I did was messed. I wish I could change it, but I can’t.” He said he made a lot of mistakes and he doesn’t want to waste his life. He enjoys and likes to do electrical things and wants to pursue this field as a career. In my view Mr. Bogle’s comments to me demonstrated insight on his part and corroborates my conclusion that his rehabilitative prospects are strong. Further, the fact he had always instructed Mr. Vaughan of his decision to guilty plea, in my view indicates the sincerity of Mr. Bogle’s remorse for his conduct.

[23] A further mitigating circumstance is the fact Mr. Bogle for the past 22 months has not been in any further difficulty with the law. He has complied with his house arrest restriction on his judicial interim release completely. This reflects the positive rehabilitation prospects for Mr. Bogle. An offender’s productive use of time spent on bail speaks to his or her significant potential for rehabilitation and it is a positive mitigating factor. As Justice Watt observed in R. v. Adamson, 2018 ONCA 678, [2018] O.J. No. 4104 (C.A.), at para 106, “it is beyond controversy that prior decisions of this court authorize a sentencing judge to take into account, as a relevant mitigating circumstance on sentence, time spent under stringent bail conditions”. Equally important is an offender who does not sit idly waiting for his matter to be resolved but rather takes concrete steps to begin his rehabilitation and reintegration back into the community and his family’s good graces.

[24] After his arrest Mr. Bogle completed a further high school mathematics course he needed to be able to pursue a post secondary education in electrical technology, which he commenced in September 2020, completing four credits by December 2020. It is his intention to finish this training upon his release from custody. This also bodes well for Mr. Bogle’s continuing rehabilitation.

Determining the Appropriate Sentence

[25] 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.

[26] 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." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[27] As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[28] A sentencing judge must also have regard for s. 718.2 of the Criminal Code, 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 two of 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] 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. Bogle is a youthful first-time offender, who has never been in trouble with the criminal justice system previously.

[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] 1 S.C.R. 500, at para. 92).

[31] Mr. Vaughan provided two of my sentencing decisions involving possession of a restricted firearm contrary to s. 95(1), to which Mr. Hendry referred during his submissions: R. v. Bradley White, [2019] O.J. No. 1733 (OCJ) and R. v. Quinton Christopher Cook, [2020] O.J. No. 3591 (OCJ), in which I referred to a number of sentencing cases involving possession of a restricted firearm together with a possession for the purpose of trafficking charge. No two cases are identical in all respects, although many cases have similarities which can be of assistance in determining a proportionate sentence.

[32] Here is a sampling of a number of sentencing decisions starting with the decision in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

a. 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.

b. 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. Sentence imposed 3 years.

c. 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.

d. 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.

e. 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.

f. 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 jury 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.

g. 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.

h. R. v. Virgo, [2019] O.J. No. 4236 (OCJ, Knazan J.) Youthful (18) first offender pleaded guilty to possession of a loaded firearms and constructive possession of a loaded firearm that he knew was in his brother’s backpack in the car he was driving. Sentence imposed taking into account the 1 year of house arrest bail was a sentence of 2 years less a day followed by 3 years of probation.

i. R. v. Wright, [2018] O.J. No. 3593 (SCJ, Corrick J.) Youthful (22 at time of offence) first offender, pleaded guilty after Charter application dismissed to possession of a loaded 9mm firearm. Two year sentence less PSC (8 weeks) leaving 22 months followed by two years’ probation.

j. 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.

k. In R. v. Prosser, 2014 ONSC 6466, [2014] O.J. No. 5291 (SCJ, Wilson J.), a case similar to the case at bar. 18 year old Mr. Prosser had no criminal record and strong community support. Search warrants executed in his home resulted in the discovery of a loaded .25 calibre Lorcin semi-automatic pistol with a detachable box cartridge magazine, 32 rounds of .25 calibre ammunition, 4 rounds of .22 calibre ammunition, 81.78 gm of separately packaged powder cocaine, $3480 cash, and 2 weigh scales. Wilson J. concluded at paragraph 13 that "[t]he evidence clearly supports the conclusion that at the time of his arrest, Mr. Prosser was a drug dealer selling cocaine who carried a gun for his protection." Balancing the principles of sentencing with aggravating and mitigating factors, Wilson J. sentenced him to 2 years of incarceration for the gun, and 6 months consecutive for the cocaine offence. This sentence was imposed mid-trial, after an unsuccessful Charter application and upon an agreed statement of fact where possession was not contested.

[33] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 explained:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[34] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

[35] In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.”

[36] This issue has been revisited by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paragraphs 57 to 58 and 60 to 61, where the Court held:

Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered 'averages', let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case...

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. (R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 44.)

In other words, sentencing ranges are primarily guidelines, and not hard and fast rules. (Emphasis added)

[37] As discussed above the fundamental principle of sentencing is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Supreme Court in Lacasse was clearly indicating a sentence can be imposed that is outside an established range of sentence as long as it is in accordance with the principles and objectives of sentencing. Sentencing is a “highly individualized exercise” and “determining a proportionate sentence is a delicate task.” (Lacasse, at para. 13). In some cases the facts and circumstances will be such that a sentence outside the usual range will be appropriate.

[38] An important sentencing consideration in respect of a youthful first-time offender is the principle of restraint which has been codified in s. 718.2 of the Criminal Code and states that:

(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.

[39] Courts in Ontario have been unequivocally clear that youth and the lack of criminal antecedents should weigh very heavily in terms of tipping the scales towards a more lenient sentence. Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. The Crown emphasized and Mr. Vaughan acknowledged that these offences are so serious that a custodial sentence is required even though Mr. Bogle is a first offender.

[40] As indicated Mr. Bogle is a youthful first offender who has never been in trouble with the law. Consequently, rehabilitation and restraint, particularly where an accused is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized. In R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

In serious cases and cases involving violence, rehabilitation alone is not the determinative factor - general deterrence and denunciation are also significant factors to be considered. However, as this court ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[41] In R. v. Chiasson, [2008] O.J. No. 466 (C.A.) the Court of Appeal dealt with a serious case of dangerous driving causing bodily harm involving a youthful first-time offender. Mr. Chiasson was pulled over by a police officer, who attempted to arrest him by placing a hand on his shoulder. Mr. Chiasson put the car in gear and accelerated forward knocking the officer to the ground and drove over the officer’s leg. He then stop the car and attempted to flee but was eventually apprehended, resisted arrest and attempted to disarm one of the officers. The sentencing judge imposed an 18 month reformatory sentence, 5 year driving prohibition and three years probation. The Court of Appeal acknowledged the seriousness of the offences but ultimately reduced the sentence to a 12 month conditional sentence, with a house arrest term for the first 9 months and a restrictive curfew of 7 p.m. to 6 a.m. for the final 3 months. The Court provided a number of reasons for reducing the sentence in this fashion, indicating “the trial judge focused excessively on the principles of general deterrence and denunciation and failed to give adequate weight to the principle that the primary objectives in sentencing a youthful first offender are individual deterrence and rehabilitation.” The Court focused as well on a number of unusual circumstances that existed in Mr. Chiasson’s background, including the fact he had suffered abuse at the hands of his step-father for a number of years, which led to his having a stutter that caused him difficulty in communicating. Further, his presentence report reflected very positive prospects for rehabilitation and how his disabilities to some extent explained his aberrant behaviour. Finally, Mr. Chiasson had utilized the time he was on bail by becoming involved with a psychiatrist, completed a program at Sir Sandford Fleming High School and was employed full-time at the time of his sentencing. The Court found all of these steps reinforced his positive prospects for rehabilitation.

[42] It is my view that similar circumstances exist in Mr. Bogle’s background and as a result the principle of restraint and the importance of supporting his continued rehabilitation become important sentencing principles to be applied in determining his sentence. There is no doubt that his criminality was very serious and that an exemplary sentence should be imposed. However, having regard to the fact he is a youthful first-time offender, the steps that he has taken while he was on restrictive house arrest bail, completing his high school math course and being admitted and completing four credits at Centennial College towards a degree in electrical technology and the fact he has not breached his release order or become involved in any other criminal offences over the past 22 months, all point to the importance of continuing to focus and support Mr. Bogle’s rehabilitative prospects.

[43] It is my view a three (3) year penitentiary sentence would not be a proportionate sentence having regard to the mitigating circumstances that exist in Mr. Bogle’s case. In my view this length of custodial sentence, as a first sentence of incarceration, would completely ignore the restraint principles set out in s. 718.2 (d) and (e) of the Criminal Code and the impressive rehabilitative steps already commenced by Mr. Bogle. As I indicated the facts of this case are quite serious and a period of custody is appropriate to reflect general deterrence and denunciation despite the fact Mr. Bogle is a youthful first offender, however it is my view that a 27 month penitentiary sentence, less pre-trial and Downes credit, would be more appropriate and would be a fit and proportionate sentence considering the totality of the aggravating and mitigating circumstances in this case and the fact Mr. Bogle is a youthful first offender.

Sentence Imposed

[44] In my view a sentence of two years in the penitentiary for the possession of a restricted firearm is a fit and proportionate sentence, which gives appropriate consideration to the sentencing principles in this case: deterrence, denunciation as well as restraint and rehabilitation. It is my view that a sentence of 3 months consecutive for the possession for the purposes of trafficking in cocaine is an appropriate sentence having regard to the small quantity that was involved and applying the principle of totality. Many of the decisions referred to above imposed similar sentences for youthful first offenders. In many of the decisions set out above the accused were sentenced after a trial or part way through a trial, Mr. Bogle was a guilty plea. The total sentence imposed before credit for pre-trial custody and for spending just over 22 months on a restrictive release order involving house arrest is 27 months.

[45] Mr. Bogle spent 8 days in pre-trial custody, which on a 1.5 to 1 basis represents 12 days of pre-trial custody credit. The Crown recognized Mr. Bogle was entitled to some credit for the fact he had spent 22 months on restrictive bail conditions, which included house arrest pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.). Mr. Bogle’s house arrest was loosened to allow him to work and to attend school but otherwise it restricted his ability to move freely with his friends for the past 22 months. For a younger person this, in my view, had a significant deterrent impact on Mr. Bogle. In addition for the past 10 months his house arrest has also occurred during a world-wide pandemic, which meant he was confined to his residence, with his father. This has had the positive impact of renewing his relationship with his father, who is now a further support for Mr. Bogle in the community.

[46] In Downes, Justice Rosenberg held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (See para. 33). In addition, he noted that:

29 Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code.

36 Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.

[47] Finally, the Court summarized the guiding considerations when deciding whether to give credit for time spent on bail conditions at paragraph 37:

Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[48] As I have indicated the Crown agreed that I should grant credit for the time Mr. Bogle was subject to stringent, restrictive bail conditions. There is no formula for determining the amount of credit to grant an accused in these circumstances. In all of the circumstances it is my view Mr. Bogle should be given a further seven (7) months or 210 days of credit pursuant to R. v. Downes. The total credit to be subtracted from the 27 month sentence is therefore 222 days.

[49] This means that the remaining custodial period is 1 year and 233 days (730 days [2 years] + 90 days [3 months] = 820 days less credit of 222 days = 598 days). I am also sentencing you to a further period of probation for a period of 2 years with conditions, which I will discuss with counsel. In my view this period of probation will be a significant and positive strengthening and support of Mr. Bogle’s rehabilitation prospects.

[50] There will be a DNA order pursuant to s. 487.051(3) of the Criminal Code as in my view it is in the interests of justice to do so. Further, there will be a weapon’s prohibition pursuant to s. 109 of the Criminal Code where I am ordering you prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life pursuant to s. 109(2)(b), and pursuant to s. 109(2)(a), prohibiting you from possessing any firearm other than a restricted or prohibited firearm, any crossbow, any restricted weapon, ammunition, or explosive substance for a period of 10 years.

[51] Finally, I was to express my appreciation for counsel for their helpful submissions in this case.

Released: January 15, 2021 Signed: Justice Peter C. West