ONTARIO COURT OF JUSTICE

CITATION: R. v. Stewart, 2021 ONCJ 65

DATE: 2021 01 05

Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYRELL STEWART

Before Justice L. Feldman

Heard on March 6, 2020

Reasons for Judgment released on January 5, 2021

M. Cuda, M. MacDonald.................................................................... counsel for the Crown

J. Struthers, A. Pinnock.................................... counsel for the accused Tyrell Stewart

FELDMAN J.:

Introduction

[1] Following a trial, I found Tyrell Stewart guilty of certain firearms offences, including unauthorized possession of a prohibited firearm (s. 91), possession of a firearm with ammunition (s. 95) and possession of a firearm while prohibited (s. 109), in relation to which he has been subject to a weapons prohibition order since 2013[^1]. On the basis of the Kienapple principle[^2], I have stayed the s. 91 charge at the request of the Crown.

[2] I found as a fact that Mr. Stewart was at least a part-time occupant in a basement apartment leased by his co-accused, Alexia Richardson, with whom he was in a dating relationship. He had unrestricted access. He shared a bedroom with Alexia, whose infant son also lived in the residence. Some of the defendant’s clothing, identifying documents and his photograph were found in the bedroom.

[3] During the execution of a search warrant at the residence, police located a Luger 9 mm. semi-automatic handgun with 2 bullets in its chamber in a drawer of a television consul of an unoccupied room of the apartment. Twelve rounds were also recovered from the same drawer. A card in the defendant’s name was found in a different drawer of the consul. I concluded on all the evidence that Mr. Stewart was in constructive possession of the firearm.

[4] As he expressed in the presentence report, Mr. Stewart maintains his innocence.

Positions of the Parties

[5] The Crown seeks a sentence of 3 ½ years for possession of the loaded handgun and one-year consecutive for breach of the weapons prohibition order. Mr. Cuda has acknowledged as mitigating the defendant’s loss of his younger brother, Jahquar, with whom he was close. He was murdered on Christmas Eve 2018. The family is still reeling from the loss.

[6] Mr. Cuda concedes, as well, that the restrictive 2-year house arrest to which Mr. Stewart was subject while on bail warrants a 25% reduction in the global sentence. That would reduce the Crown’s proposed sentence to 40.5 months.

[7] Mr. Struthers, for the accused, submits that on the facts and authorities a just sentence, taking into account the prosecution’s concessions, would be 18 months for the firearms offences, plus 6 months consecutive for the weapons prohibition breach. He suggests, in addition, that the structure of a 3-year probation order would serve to protect the public at the same time as it would enable the defendant’s rehabilitation.

Mr. Stewart’s Personal Circumstances

[8] Mr. Stewart had the benefit of a stable upbringing in a close-knit single-parent family. Both his mother, Nicole Barton, and his aunt, Donna Barton, work with disabled and mentally-challenged children. They were undoubtedly positive role models. The defendant’s parents and some of his siblings were present in court to support him.

[9] Ms. Barton considers her son to be a ‘responsible and caring person’ who helps look after his elderly grandparents. She says he is sad over losing his brother whom she described as his only true close friend. He suffers from depression and anxiety for which he takes medication. He carries attention-deficit disorder.

[10] Other members of his family reinforce the defendant’s more positive personal qualities and potential and ask the court for a lenient sentence. His aunt writes that he is a gifted artist whose talents have been recognized by one of the largest American record producing companies. She says he is working hard to be a productive member of society. His sisters vouch for his character and caring nature. He is a good friend and father figure to his late brother’s son.

[11] Mr. Stewart finished high school. He intends to further his education in IT at the community college level. His high talent in music and art are recognized in his community. He has written and produced rap music videos. He has athletic skills that he has used to work with children in the community.

[12] Mr. Stewart has the following criminal antecedents:

June 4, 2013 – PFP Cocaine – 60 days Intermittent

PFP Marijuana – 4 months Conditional Sentence, concurrent

June 24, 2013 – Theft under $5000 – 60 days Conditional Sentence, Probation 18 months

Assault – 60 days Conditional Sentence, concurrent

s. 109 Weapons Prohibition Order for 10 years

[13] Mr. Stewart was less than forthright with the author of this report in denying a relationship with the co-accused, belied by the admission of his mother in the report and the evidence at trial that permitted a strong inference of a close relationship.

[14] The probation officer questions the defendant’s peer choices and decision-making. He sees the need for Mr. Stewart to work on his mental health and grief issues and to demonstrate more pro-social attitudes in order to mitigate future behavioural risk. Despite his reticence, were he to work on these issues, Mr. Stewart has good rehabilitative prospects.

The Sentencing Principles

[15] I am guided by the principles set out in Code s. 718.1. Among other factors to be considered, denunciation and deterrence are to be balanced against rehabilitative potential. As well, sentences are to be proportionate to the gravity of the offence and the circumstances of the offender. They are to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. And where there is more than one offence, the total sentence should not be out of proportion to the gravity of the offences[^3].

[16] It is made clear in the authorities that firearm offences are to be viewed seriously. In Nur[^4], Doherty J.A. said, at para. 206, that, “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” are engaging in offences at the “true crime end of the s. 95 offences” and should receive exemplary sentences that emphasize deterrence and denunciation. These crimes generally attract penitentiary terms, even for first offenders[^5].

[17] In Boussoulas[^6], Justice K. Campbell emphasized the risk to community safety posed by firearms. He said, at para. 23: “…the criminal possession of handguns remains an all too prevalent threat to the people of Toronto…The possession of these firearms, on occasion, results in serious bodily harm or death. Accordingly, the criminal possession of such illegal firearms must be met with custodial sentences that proportionally reflect the gravity of the offence and appropriately stress the need to denounce and deter such crimes. The public must be adequately protected”. I agree.

Application to Mr. Stewart’s Circumstances

[18] I take some limited assistance from the range of sentences imposed in other s. 95 cases. I do so mindful that, “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”[^7].

[19] The decision in Marshall[^8] is an indication of the seriousness with which firearms possession is viewed. The defendant was a youthful first offender involved in the drug trade. He was in possession of a loaded prohibited firearm in an apartment during a drug transaction where several individuals were present and the potential for violence was high, a particularly aggravating feature. Subsequently, he pled guilty to possession for the purpose of trafficking in 60 grams of cocaine while on bail for this offence. He had a negative pre-sentence report. These additional factors, in my view, permitted the inference of continuing risk and served to heighten the seriousness of the offence. Justice Cronk placed this offence at the true crime end of the s. 95 spectrum. She upheld a sentence of 3 ½ years.

[20] In Thavakularatnam[^9], the facts were egregious. There, the defendant carried a loaded firearm in a busy shopping mall. Upon his arrest, a violent struggle with the police ensued. The risk to innocent members of the public was immediate. Justice Akhtar imposed a sentence of 40 months

[21] In her review of more recent s. 95 sentencing cases, Justice H. Pringle in Reyes, observed that the post-Nur range has broadened.[^10] In Reyes, the defendant trafficked in commercial amounts of cocaine and marijuana. He was arrested in a vehicle while in possession of an automatic firearm loaded with 7 rounds of ammunition, with an eighth round in the chamber. The court found it aggravating that he was using a loaded firearm to assist him in trafficking in drugs in a densely populated area in the middle of the day. However, Justice Pringle took note that the 23-year old defendant entered an early guilty plea, had family support, no criminal record, was a valued employee and had strong rehabilitative prospects. She imposed a sentence of 2 years.

[22] In arriving at this result, Justice Pringle relied on a number of decisions at both trial levels that indicated a broadening of the range in post-Nur sentences. In Cadienhead[^11], the 20-year old defendant walked down a busy residential street with a loaded gun in his pants, its serial number defaced. At the time, he was on probation prohibiting him from possessing weapons. Allen J. imposed a global sentence of 2 years less a day.

[23] In James[^12], the 25-year old defendant was a landed immigrant with no criminal record. He allowed his bedroom, where he had a handgun stored in a bag, to be used for drug trafficking purposes. Justice Mew imposed a sentence of 2 years less a day, of significance, one subject to a ‘meaningful reduction’ for a Charter breach.

[24] In Roy[^13], police responded to a ‘person with a gun’ call. The defendant was in a car with a loaded prohibited handgun, the serial number removed, in his waistband with a bullet in its chamber. He was intoxicated and resisted removal from the vehicle. At the time, he was on probation prohibiting his possession of weapons. He pled guilty to the breach and the s. 95 offence.

[25] Mr. Roy was 21, had a tragic childhood and carried mental health challenges. He was essentially homeless. The court found no evidence of the “toxic combination” of weapons possession with drug trafficking. The absence of this aggravating factor was noted by Justice Moore who, as well, accepted that the range of s. 95 sentences had broadened, as set out in the more recent authorities reviewed by Justice Pringle in Reyes.

[26] Mindful of the principles in s. 718.1, the sympathetic factors present in this case and an acceptable range in the circumstances, Justice Moore imposed a sentence of 21 months for the firearms offence and 3 months consecutive for the breach. The pre-trial custody kept the defendant in the provincial system.

The Appropriate Sentence

[27] Mr. Stewart’s rehabilitative prospects are positive and should be encouraged. He has a dated criminal record. He has the full support of a close and extended family. His mother and aunt are impressive role models. In working with young children, he has given back to his community. He is also a gifted artist with a promising future and intends to pursue related education.

[28] The Crown concedes that the defendant’s more recent loss of his brother is mitigating, as is his having been under a restrictive house arrest for approximately 2 years while on bail. He has served 10 days of pretrial custody.

[29] Mr. Stewart’s possession of a loaded handgun in circumstances where there was some limited risk to the co-accused’s infant son fits the true crime end of the spectrum, all the more so its potential misuse in the community. As Justice Akhtar said in Thavakularatnam[^14], “guns are made and used to maim, threaten and kill”. An exemplary sentence is required.

[30] On the ss. 91 and 95 offences, Mr. Stewart will be sentenced to 24 months to be served concurrently. Given totality concerns, and the Crown’s concession on the weapons prohibition count, I would add 6 months consecutive for the s. 109 offence.

[31] In light of the restrictions on the defendant’s liberty interests while he was on house arrest and the tragic loss of his brother, the Crown fairly concedes a 25% reduction in mitigation of the firearms sentence. I would agree.

[32] In the result, on the ss. 95 and 91 offences, concurrent sentences of 18 months will be imposed for a total sentence of 24 months. I would reduce that sentence by one day to account for the pretrial custody, bringing the defendant into the reformatory system. I do so in light of Mr. Stewart’s rehabilitative prospects, the benefit of his likely being housed closer to his family and the advantages of a lengthy period of probation.

[33] Mr. Stewart will be sentenced to 2 years less a day, plus 3 years probation. The terms of probation will be: keep the peace and be of good behaviour; report immediately and thereafter as required; attend for counselling as directed by your probation officer to address the following: mental health issues, grief and trauma counselling, decision-making skills, peer associations, promoting pro-social beliefs and attitudes, productive use of leisure time; make reasonable effort to seek and maintain employment or attend school; abstain from owning, possessing or carrying any weapon as defined by the Criminal Code.

In addition, a sample of the defendant’s DNA will be taken; the firearm and ammunition will be forfeit; and a s. 109 Weapons Prohibition Order for life is imposed.

Released: January 5, 2021

Signed: Justice L. Feldman

[^1]: R. v. Stewart, 2020 ONCJ 3 [^2]: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524 [^3]: R. v. M(CA), 1996 230 (SCC), [1996] 1 S.C.R. 500 [^4]: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401 [^5]: R. v. Smickle, 2014 ONCA 49, 306 C.C.C (3d) 351, at para. 19 [^6]: R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104 (Ont. S.C.) [^7]: Nur, supra, at para. 43 [^8]: R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (Ont. C.A.) [^9]: R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038 (Ont. S.C.) [^10]: R. v. Reyes, [2018] O.J. No. 1560 (Ont. C.J.), at para. 21 [^11]: R. v. Cadienhead, [2015] O.J. No. 3125 (Ont. S.C.) [^12]: R. v. James, [2017] O.J. No. 273 (Ont. S.C.) [^13]: R. v. Roy, [2018] O.J. No. 3427 (Ont. C.J.) [^14]: Supra, at para. 21