Ontario Court of Justice

Date: 2021 04 23 Court File No.: Guelph # 19-3181, # 19-3182

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

THOMAS STEPHENS

Before: Justice M.K. WENDL

Heard on: March 1, 2021 Reasons for Sentence released on: April 23, 2021

Counsel: D. Russell........................................................................ Counsel for the Provincial Crown C. Bond................................................................................. Counsel for the Federal Crown L. Gensey.............................................................................. Counsel for Thomas Stephens

WENDL J.:

[1] Mr. Stephens was found guilty of a variety of offences, after trial, relating to a stolen motor vehicle, a loaded firearm and possession for the purpose of trafficking. My trial reasons are found in R. v. Stephens, 2020 ONCJ 602. These are my reasons for sentence.

[2] The Crowns, both Federal and Provincial, are seeking a total sentence of 12 years minus pre-sentence custody. The Crowns’ initial position was of 13 ½, however, they reduced it by one 1 year based on the principle of totality and a further 6 months for COVID/harsh pre-sentence custody/collateral consequences credit. The defence is seeking a sentence of 5 years minus pre-sentence custody.

Background of Thomas Stephens

[3] Mr. Stephens is now 30 years old. At the time of these offences, he was 29. As with most parties that come before the Court, Thomas Stephens has a difficult background. Letters provided to this Court by his aunt, mother and girlfriend detail that background. Mr. Stephens’ father was an alcoholic, a drug addict and an abusive man. He spent most of his life in and out of jail. Mr. Stephens’ paternal side has a significant alcohol problem as a whole. His mother, in her letter to the Court, indicates that his father is of aboriginal heritage. I will discuss this fact in further detail below. At the age of two Mr. Stephens and his mother moved to Fergus, away from his father and his lifestyle. Mr. Stephens’ mother entered a new relationship, a man who would be Mr. Stephens’ father figure. The relationship ended when Mr. Stephens was 13 years old. This had a significant impact on him, he effectively lost a second father. Around the same time a serious knee injury ended his athletic career. It seems this is when Mr. Stephens’ life took at wrong turn, he interacted with the wrong crowd, began abusing substances and began his interaction with the criminal justice system.

[4] Mr. Stephens’ criminal record is significant. It begins in 2005 and there are 29 convictions entered. While I acknowledge that many entries are for administrative offences, what stands out in relation to this sentencing is an entry for kidnapping with a firearm for which he received 6 years.

Gladue Factors

[5] Mr. Stephens asserts aboriginal heritage on his father’s side. However, the Galdue letter obtained by the Court, while noting they could not conclude that Mr. Stephens does not have aboriginal heritage, could not confirm this heritage. The letter concludes the following:

We trust that this letter provides all the relevant information with regard to our efforts to respond to the Gladue request we received. At this point in time, we are unable to prepare a Gladue Report for Mr. Stephens for two reasons. First, we are unsure about the specific nature of his Indigenous ancestry and second, even if his ancestry was somehow able to be confirmed we cannot address how being an Indigenous person has affected Mr. Stephens’s life circumstances. The purpose of a Gladue Report is to discuss the way in which the individual before the court has been influenced and affected by their Indigenous ancestry – either directly, or by systemic and historical factors.

This letter should not be read in any way as stating that Mr. Stephens is not an Indigenous person – we are not in a position to draw such a conclusion. Neither should this letter be read as stating that there may not be relevant Gladue issues in this case. The fact that we are not able to prepare a Gladue Report for Mr. Stephens does not mean that there are no Gladue related issues counsel may wish to raise with the Court. [1]

[6] Obviously, this conclusion complicates the sentencing analysis for this Court. In Macintyre-Syrette the Court of Appeal reiterated the approach to sentencing aboriginal offenders. First, it requires the Court to look at the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and, second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. [2]

[7] In relation to the first part of the analysis, I accept the evidence of Mr. Stephens’ mother that she believes his father to have aboriginal heritage, I also accept that Mr. Stephens’ father was absent, abusive and had an alcohol problem which impacted Mr. Stephens and his upbringing. I acknowledge that the lack of a relationship with his father would have contributed to a sense of alienation in him. However, these findings are made within the context of the No Gladue report where the author states that she “cannot address how being an Indigenous person has affected Mr. Stephens’ life circumstances.”

[8] Given the Gladue writer’s the inability to link his background to any specific community, the Court cannot complete the second branch of the analysis. This is different from the context in MacIntyre-Syrette where the Court of Appeal found that the sentencing judge erred in accepting a Gladue report which provided insufficient assistance for determining the types of sentencing procedures and sanctions that would be appropriate given the offender's connection to his specific Aboriginal community. Here, we simply cannot link Mr. Stephens to a community.

[9] The Court, while acknowledging the issues stemming from his father, cannot put much weight on his assertion of aboriginal status given the lack of specificity about Mr. Stephens’ aboriginal heritage and how it affected his life. As the Court of Appeal stated in Monckton:

The problem lies in the vagueness of the information concerning the appellant's attitude towards his Aboriginal status. The court was merely provided with general information from the appellant's father about his son's interest in his heritage.

Of course, the appellant is not required to draw a straight line between his Aboriginal roots and the offences for which he is being sentenced: see Ipeelee, at paras. 82-83; and R. v. Kreko, 2016 ONCA 367, 131 O.R. (3d) 685, at paras. 21-22. However, more is required than the bare assertion of an offender's Aboriginal status. [3]

[10] To be clear, the Court simply does not have the required information to link Mr. Stephens’ assertion of aboriginal status to how it bears on his moral culpability.

The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be "tied in some way to the particular offender and offence". LeBel J. went on to note that "[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence." LeBel J. elaborated on the concept of "culpability" at para. 73, explaining that "systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness."

This court has followed LeBel J.'s guidance in multiple cases. In Kreko, Pardu J.A. explained at para. 23 that "the [systemic and background] factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing". Watt J.A. reached a similar conclusion in Radcliffe, at para. 55: see also Monckton, at para. 116; R. v. Johnson, 2013 ONCA 177, 303 O.A.C. 111, at para. 64. [4]

Application

[11] As stated above, the Crown is requesting a sentence of 12 years and the accused seeks a sentence of 5 years. Both are agreed that I should deduct 6 months from my aggregate sentence for COVID pre-sentence custody conditions in addition to reducing the pre-sentence custody at a rate of 1.5 to 1.

[12] Since Mr. Stephens was convicted of multiple offences, the totality principle plays an overarching role in this analysis. The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. [5] Ultimately, the totality principle is an expression of the proportionality principle enshrined as the fundamental principle of sentencing in the Criminal Code. [6]

[13] The appropriate approach to the totality principle in Ontario is to first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. Once that has been determined the sentencing judge should then impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct. [7]

[14] However, before considering the overall aggregate sentence, I need to reflect on the range of appropriate sentence for a second firearms offence and for possessing roughly 180 grams of cocaine and methamphetamine for the purpose of trafficking, the two most serious offences I found Mr. Stephens guilty of at trial, notwithstanding that I need to consider range of sentences for the other offences he was found guilty of at trial; namely the weapon prohibition, the breaches of probation, the possession of the stolen motor vehicle and the careless transportation of the firearm. In addition to that, while the determination of consecutive and concurrent sentences is always within the discretion of the sentencing judge, and while the possession of the firearm, the possession of the drugs and the breach of a weapons prohibition all stem from a related factual matrix, they relate to different legally protected interests and as such may warrant consecutive sentences. [8] Therefore without knowing appropriate range for the individual sentences, it is more difficult to determine if certain offences should be concurrent or consecutive, or whether the it is more important that the sentences for certain offences reflect the full extent of the range but are served concurrently or a should reflect a reduced value but served consecutively to adhere to the totality principle.

[15] Denunciation and deterrence assume a place of prominence in sentencing firearms and drug trafficking. [9] In Graham, Code J. detailed the range for second section 95 firearms offences with a 109 breach. Code J. indicated that the range should be 6-10 years.

[16] On the facts of his case, namely the second section 95 offence, the prior record including a charge for attempt murder with the use of a firearm, and that the accused possessed the firearm and ammunition for an unlawful purpose, Code J. found the appropriate sentence to be 8 years on the section 95 offence and one year consecutive for the 109 breach. Code J. did not consider the possession of the drugs and the breach of the 109 order as aggravating on the section 95 offence since he imposed consecutive sentences on those charges. [10]

[17] In relation to the drug offences Mr. Stephens was found guilty in trafficking of approximately 180 grams of both methamphetamine and cocaine. Both cocaine and methamphetamine have a similar sentencing range. [11]

[18] In Ho [12], Malloy J. found that a 4-year sentence was appropriate for Mr. Ho who was found guilty of possession 8.2 grams of ecstasy, 1.8 grams of ketamine and 115.4 of methamphetamine for the purpose of trafficking. Mr. Ho had a prior record for trafficking in marijuana and ecstasy for which he served 3.5 years. Significant for this analysis, Malloy J., with these amounts, qualified Mr. Ho as a mid-level dealer. I believe this same characterization applies to Mr. Stephens.

[19] Code J., again in Graham, found that the range of sentence for a mid-level trafficker in cocaine to be 2-5 years.

[20] Having reflected on the range of sentences for the drugs and weapons offences and applying the totality principle, as directed by the Ontario Court of Appeal, it is my view that the total appropriate sentence for Mr. Stephens is 10 years. From those 10 years, when I apportion each sentence individually, I will deduct the 6-month agreed upon COVID credit for an effective sentence of 9 ½ years.

[21] On the weapon dangerous charge, the loaded antique firearm, I impose 8 years. Defence counsel argues that the range as outlined in Graham does not apply to Mr. Stephens since he was not convicted of that type of regulatory offence since the antique firearm was exempted. I disagree. Simply put, Mr. Stephens had a loaded firearm at his ready. A conviction under section 88 for a weapon dangerous carries the same maximum as a conviction under section 95, 10 years. Arguably, a conviction for a section 88 offence is more aggravating, especially in the context of a loaded firearm, since it carries with the finding that the weapon was dangerous to the public peace. The purpose for excluding antique firearms from the provisions under section 91, 92, 94 and 95 of the Criminal Code was to protect legitimate antique firearms collectors, [13] not someone who protects their illegitimate drug business with an antique firearm. Moreover, allowing for such a distinction would arguably encourage those involved in illicit activity to do so with an antique firearm. This could not be the purpose of parliament in creating this exemption, particularly in an era with increased concern over gun violence. Also, I note that Mr. Stephens’ record does not actually contain a prior conviction under section 95, but a conviction under section 279 of Criminal Code for kidnapping with a firearm. I find this conviction more aggravating since the conviction shows that he used the firearm in the commission of an offence for which he received 6 years and was undeterred by it. This prior conviction demonstrates increased the need for specific deterrence for Mr. Stephens on the current firearms related sentencing. [14] I also add that, since I am sentencing Mr. Stephens consecutively on the drug charges, I am not taking them into account as an aggravating factor on the this offence.

[22] On the two counts of possession for the purpose of trafficking in cocaine and methamphetamine I impose 2 years concurrently on each of those charges, but consecutive to the weapon dangerous offence. This reflects the concomitant sentencing ranges on cocaine and methamphetamine and, while at the lower end of the range, considers totality. From this I deduct 6 months for COVID credit in pre-sentence custody.

[23] On the weapon prohibition offence, I impose 1 year concurrent to the weapon dangerous offence. I impose a concurrent sentence since I want the record to reflect the severity of contravention while at the same time taking into account totality.

[24] On the breach of probation charges, I impose 6 months concurrently on each charge and concurrent to the weapon dangerous offence.

[25] On the stolen motor vehicle charge, I impose 6 months concurrently to the weapon dangerous offence.

[26] On the careless transportation, I impose 1 year concurrent the weapon dangerous offence.

[27] Finally, the global sentence of ten years takes into account the mitigating factors, namely the social support he has in his family, his acknowledgement, provided to the Court through his reference letters that he has a substance abuse problem and the difficulties he faced growing up due to the relationship with his father. I also agree that given his support, acknowledgement of substance issues and his age that he has some prospects for rehabilitation and, therefore, a longer sentence would not be appropriate.

Released: April 23rd, 2021 Signed: Justice M.K. Wendl

[1] Thomas Stephens - No Gladue Report dated February 26, 2021 [2] R. v. Macintyre-Syrette, 2018 ONCA 259, [2018] OJ No 1458 at 13 (ONCA) [3] R v Monckton, 2017 ONCA 450, [2017] OJ No 2856 para 114-115 (ONCA) [4] R v FL, 2018 ONCA 83, [2018] OJ No 482 at 41-42 (ONCA) [5] R v CAM, [1996] SCJ No 28 at 42 [6] Ibid at 43 [7] R v Ahmed, 2017 ONCA 76, 136 OR (3d) 403 at para 84-85 [8] R v Sadikov, [2018] OJ No 3525 at 14 (ONCA); R. v. Graham, 2018 ONSC 6817 at 41 [9] R. v. Mohammed, [2017] OJ No 4588 at 6 (ONCA) [10] Graham, supra note 6, 25-26 [11] R. v. Ho 2011 O.J. 6672 at 39 (SCJ) [12] ibid [13] House of Commons Debates, Vol. 133, No 166, 1st Sess., 35th Parl. March 28, 1995; House of Commons Debates, Vol. 133, No 165, 1st Sess., 35th Parl. March 13, 1995; House of Commons Debates, Vol. 133, No 154, 1st Sess., 35th Parl. February 27, 1995 [14] On the use of a prior record on sentence see R. v. Taylor, 2004 O.J. 3439 at para 39: “Certainly, it would be wrong to punish a person for his or her past crimes by using a criminal history in effect to impose a "double punishment" on that person, i.e., to impose a sentence for the offence in question and then to add something more for the criminal record: see Regina v. Hastings (1985), 1985 ABCA 20, 19 C.C.C. (3d) 86 at 88 (Alta. C.A.); R. v. Young, [1979] M.J. No. 150, (1979), 22 C.L.Q. 35 (Man. C.A.). Thus, it is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence: R. v. Carrier (1996), 1996 ABCA 133, 187 A.R. 40 (Alta. C.A.). However, a criminal record, depending on its nature, may be an "aggravating" factor in the sentencing context in the sense that it renders a stiffer sentence "fit" in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism.”