Ontario Court of Justice

Date: May 20, 2021

R. v. Everton Coburn

Sentencing Endorsement

Sentencing Submissions made: May 19, 2021

Counsel: E. Willschick, for the Defendant S. Nakib, for the prosecution

Introduction

[1] Following a trial, I found the Defendant guilty of possessing an unloaded firearm in a motor vehicle. He had possessed the restricted handgun in an unlocked and open glovebox of his friend’s car as they attended a local bar. He left a magazine with ammunition on the front passenger seat. He carried a bullet on his person. It is unknown whether any of the ammunition could be discharged from that firearm.

Positions of the Parties

[2] The prosecution proceeded summarily and seeks the maximum sentence of six months jail for the firearm possession and firearm in a vehicle counts. In addition, the prosecutor seeks three additional months in jail for the careless storage offences (concurrent to each other but consecutive to the possession counts). Additionally, probation is sought.

[3] The Defendant concedes that these are dangerous offences and warrant the maximum sentence of 6 months in jail, however, it is submitted that the jail sentences should be concurrent on all offences and served conditionally in the community. The Defendant’s prior good behaviour, youth, and history on a lengthy bail for these offences prove that he is capable of community supervision and he is no threat to the community.

[4] Neither party provided caselaw to justify the jail sentence sought.

Discussion

Mitigating Factors

The following factors are mitigating:

i. The parties agree that at the time of the offences the Defendant was only 23 years old, and he is now 25 years old; ii. The parties agree that the Defendant is a first offender; iii. It is uncontested that although the Defendant was always in possession of the firearm, he did not use it or threaten its use; iv. The parties agree that the pre-sentence report was favourable; v. The Defendant has the support of his family; This was not contested by the prosecution; vi. The Defendant is remorseful for having committed these offences. This was not contested by the prosecution; and vii. The Defendant wants to rehabilitate himself and lead a pro-social life. This was not contested by the prosecution.

Aggravating Factors

[5] The following factors are aggravating:

i. The firearm was left in public view in a locked vehicle parked outside a bar; ii. The Defendant had been drinking alcohol and smoking marihuana prior to returning to the car; iii. The recovered firearm was not lawfully registered to the Defendant (see exhibit 3 on the trial); and iv. The firearm is a handgun. Handguns are more easily concealed and transported than long guns.

Neutral Factors

[6] The following are neither aggravating nor mitigating and have not factored into the calculus of an appropriate sentence in this case:

i. The Defendant had a trial; ii. It is unknown whether the Defendant has taken a firearms safety course; iii. It is unknown whether the Defendant is licensed to possess firearms or restricted firearms. During the trial, no affidavit was filed from the Office of the Chief Firearms Officer of Ontario to establish whether or not the Defendant is licensed to possess either type of firearm; iv. It is unknown why the Defendant possessed an unregistered, restricted firearm. There is no suggestion that he is a member of a gang, that he commits crimes, or that he requires the firearm for protection; v. There were no injuries suffered by anyone in the discovery or recovery of the firearm.

Circumstances of the Defendant

[7] The Defendant is a young man with a short work history and a grade 11 education. He has one dependent and he is single.

[8] The Defendant has support from his mother, with whom he lives. The Defendant’s father died in 2019.

[9] The Defendant is debt-free and now committed to a pro-social lifestyle. This is somewhat supported by the pre-sentence report writer. The Defendant was always polite with all parties in court during this trial.

[10] The Defendant is a Black male, but there is no evidence respecting how anti-Black racism has impacted his life.

Sentencing Principles

[11] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. R. v. Hamilton and Mason, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) at para. 102.

[13] In R. v. Hamilton and Mason, Doherty J.A. of the Ontario Court of Appeal stated that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. Hamilton, supra, at paras. 90-91.

[14] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92:

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.

[15] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. See subsection 718.2(b) of the Code.

[16] In the circumstances of this case, where both parties submit that the maximum jail sentence (six months) is warranted, it is trite to note that s. 718.2 of the Criminal Code provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.

[17] Our Supreme Court has instructed that section 718 of the Criminal Code requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. R. v. Gladue, 1999 SCC 679, [1999] S.C.J. No. 19 at paras. 43 and 48. Although the rehabilitation of the Defendant is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider, especially in light of his age.

Analysis

[18] The Defendant has been found guilty of four offences, two of which relate to a dangerous firearm obviously related to criminal possession as there is no registration for the firearm in Canada. The handgun was possessed outside a bar, wherein the Defendant had been drinking alcohol and smoking marihuana. The threat to individual and public safety in these circumstances was high.

[19] I have taken into account all of the mitigating and aggravating features of these offences and the circumstances of a youthful, remorseful, racialized young man.

[20] The Defendant says that he wishes to move forward with his life and I accept that.

[21] Ultimately, I reject the idea that six months of imprisonment and probation, globally, is appropriate in all of the circumstances to sufficiently denounce the Defendant’s conduct, address his moral culpability, and deter him and others from committing similar offences.

[22] The fact that the firearm was possessed and left in plain sight in public, in an open glovebox in a car, coupled with its unlawful provenance (it was sold or distributed to the Defendant in unlawful circumstances – no proper registration for the transfer of the firearm; it is a restricted firearm for which there are few legitimate reasons to lawfully possess) demands a sentence at or toward the top end of the range. The possession of this firearm is bereft of any benign purpose: it is possessed strictly for criminality and in the circumstances of its possession it was a threat to public safety.

[23] Should the Defendant be incarcerated or should he serve a jail sentence in the community during a global pandemic? I have also taken the dire circumstances of our over-capacity health care system into account. There is no doubt that serving any time in custody during this unusual event is difficult and significant. I am inclined in appropriate cases to use every tool of sentencing in a creative way to avoid incarcerating our residents in a custodial facility during this unprecedented health crisis.

[24] Lastly, I considered the submission that our community suffers from increasing gun violence, currently. The statistics filed during the sentencing hearing are troubling. The Defendant did not contest this reality.

[25] In the end, in light of the dangerous nature of the weapon involved, and the circumstances of its possession (unloaded and left in a locked car alongside live ammunition and in plain-view for almost anyone in the area to see by the Defendant who then consumed marihuana and alcohol before returning to the vehicle), I agree with the prosecutor that the maximum sentence of six months imprisonment is warranted for the possession offences.

[26] While I recognize that the Defendant is a first offender and imprisonment, especially during a global health crisis, will be difficult, I am not persuaded that serving a jail sentence in the community for this type of s. 91 offence is appropriate. If the defendant were a licensed firearm owner who accidentally let his license lapse while he transported the firearm in a car, a conditional jail sentence may be appropriate. Here, the firearm is completely illegal, the possession is illegal, and the circumstances of the possession (at a nightclub) are incomprehensible.

[27] In all of the circumstances the only sentence that is appropriate for the firearm possession is the maximum jail sentence of six months, concurrent on both offences (s. 91 and s. 94).

[28] I have not been made aware of any pre-trial custody and none is credited. In addition, I am sentencing the Defendant to probation for 2 years, concurrent on both of these offences.

[29] For the careless storage of a firearm count, I am suspending the passing of sentence. The probation will apply to this count as well. Fortunately, the firearm was in a locked car and also fortuitously, no member of the public discovered the firearm before the police.

[30] For the careless storage of ammunition, I am imposing three months imprisonment, consecutive to the other counts. While there is no proof beyond a reasonable doubt that the ammunition and magazine would operate in this firearm, the presence of ammunition and a firearm magazine increase the overall threat, if not the actual dangerousness, of the unlawful firearm possession.

[31] Moreover, the Defendant carelessly and deliberately brought an unspent bullet into a crowded nightclub. That increased the level of danger for this offence. In all of the circumstances, where an unregistered, unlawfully possessed firearm was possessed by someone who was drinking alcohol and consuming marihuana, and the Defendant carried a bullet and left more ammunition loaded within a magazine in the presence of a firearm, I am satisfied that this offence requires a short-sharp period of imprisonment to send the appropriate message of deterrence and denunciation.

[32] The Defendant submitted that it is not expected that crime guns or ammunition will be stored safely by those breaking the law. For this reason, submits the Defendant, the careless storage offences were just part and parcel of the unlawful possession and merit a concurrent jail sentence. I cannot agree.

[33] Leaving the firearm and live ammunition (although it was not ascertained if the ammunition were for this weapon) in plain view in a locked car is completely dangerous and thoughtless. Any patron that night with any malice in mind could have discovered the weapon and threatened the public. The ammunition would have made any threat more credible. The presence of a carelessly stored weapon and ammunition put the police on high alert. This put into place a chain of events requiring swift action. This was not the case of a licensed firearm owner temporarily failing to comply with the storage rules requiring firearms and ammunition to be locked up. The firearm and ammunition was not properly or safely stored as required by s. 7 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations; SOR/98-209, made under the Firearms Act, S.C. 1995, c. 39. Three months imprisonment, consecutive to the other offences, is the appropriate sentence for the careless storage of the ammunition in these circumstances.

[34] As indicated, I am placing the Defendant on probation for 24 months with the following terms:

i. Keep the peace and be of good behaviour; ii. Attend court when required; iii. Notify your probation officer within 48 hours of any change of name, address, or occupation; iv. Report to a probation officer within 48 hours of your release from prison in person, and thereafter as required and in the manner required, at a rate of not less than once per month for the first 12 months of the Order; v. Possess no weapons; vi. Take counselling for drug addiction or other pro-social purposes as directed by your probation officer; vii. Seek and maintain gainful employment or educational programming; and viii. Complete releases of information in favour of your probation officer to permit the probation officer or a designate to monitor your attendance, participation, and completion of any counselling, or employment, or educational training.

[35] Given that the ancillary order was unopposed, I am satisfied that it is appropriate to make an order pursuant to s. 109(2) of the Criminal Code prohibiting the Defendant from possessing any firearm or ammunition for a period of 10 years and for a period of life for any prohibited or restricted firearm, or ammunition, or prohibited weapon or device.

[36] Lastly, I wish Everton Coburn every success in his rehabilitation, for his sake and the sake of our community.

Released: May 20, 2021 Justice G. Paul Renwick