ONTARIO COURT OF JUSTICE

CITATION: R. v. Conroy, 2021 ONCJ 726

DATE: 2021 04 16

COURT FILE No.: Brampton 3111 998 20 2748

BETWEEN:

Her Majesty the Queen

— AND —

Deshawn Conroy

Before: Justice G.P. Renwick

Heard on: 14 April 2021

Reasons for Sentence Released on: 16 April 2021

Counsel: T. Powell, counsel for the Crown A. Goldkind, counsel for the defendant Deshawn Conroy

REASONS FOR SENTENCE

RENWICK J.:

INTRODUCTION

[1] Following a trial, on 17 March 2021, I found the Defendant guilty of a threat to damage his mother’s iPad, contrary to s. 264.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), and three firearm offences:

i. -s. 92(1) – knowingly possess firearm no license;

ii. -s. 95(1) – possess loaded firearm; and

iii. -s. 108(1)(b) – possess firearm with obliterated serial number.

[2] The trial was concluded abruptly following the dismissal of the Defendant’s Charter Application to exclude evidence. The Defendant called no evidence and made no closing submissions on the trial evidence.

[3] The prosecutor proceeded by indictment on all counts. The offences under sections 92(1) and 95(1) carry a maximum sentence of 10 years imprisonment, while the other two offences each carry a five-year maximum sentence.

[4] There was no evidence led to suggest the purpose for which the loaded firearm was possessed, the origins of the firearm, or for how long the firearm was possessed, but there was no dispute among the parties that this is a deadly weapon and these offences are serious.

[5] Neither party made any sentencing submission in respect of the threatening count.

PRE-TRIAL CUSTODY CREDIT

[6] Both parties agreed that their suggestion of pre-trial custody credit (“PTCC”) reflects enhanced credit owed to the Defendant given harsh pre-trial conditions during the global pandemic, circumstances related to the particular institution within which custody was served (lockdown days, etc.), and other considerations that were not brought to the attention of the court. While the parties did not agree on how the various factors ought to affect the enhancement to the actual time spent in pre-trial custody, they agreed on the final credit to be applied and subtracted from any sentence imposed for these offences.

[7] The parties agreed that the Defendant was arrested on 06 March 2020 and has remained in custody on these charges until the present. At the time of sentencing submissions, the parties also agreed that the Defendant had spent 405 actual days in pre-trial custody. I have determined that 06 March 2020 until today (16 April 2021) is 407 days. Lastly, the parties also agreed that a factor of 1.879 to 1 ought to be applied to the Defendant’s actual pre-trial custody to reflect PTCC of 765 days.[^1]

[8] I accept the suggestion that the Defendant should receive PTCC of 765 days, to be subtracted from the global sentence imposed in this case.

SENTENCING POSITIONS OF THE PARTIES

Position of the Prosecutor

[9] The prosecutor submitted that a net global sentence of three years imprisonment is appropriate for these offences. A s. 109 order prohibiting the Defendant from possessing weapons and an order to take a sample of the Defendant’s deoxyribonucleic acid (“DNA”) were also sought.

[10] In seeking this sentence, the submission is said to take into account the following factors:

i. The loaded firearm was possessed in dangerous circumstances with no benign explanation;

ii. The Defendant has a prior finding of guilt for a weapons offence;

iii. The circumstances of the possession included the context of a familial conflict at the time of possession;

iv. The rise of firearms offences in Peel Region;

v. Sentencing parity; and

vi. The Pre-sentence report and the Defendant’s prospects for rehabilitation.

[11] The prosecutor concluded that on the basis of the Ontario Court of Appeal’s decision in R. v. Mohiadin, 2021 ONCA 122, a sentence higher than three years of imprisonment would be appropriate, but when other considerations and mitigating factors are taken into account, a global sentence of three years would meet all applicable sentencing principles.

[12] After subtracting PTCC (765 days) from three years (1,095 days), 330 days of imprisonment remain. On this basis, the prosecutor submits that it would also be appropriate to put the Defendant on probation for two years.

Position of the Defendant

[13] The Defendant submitted that when the PTCC is counted, no further time in custody is warranted, however 18 months of probation is appropriate. No submissions were made respecting the ancillary orders sought by the prosecutor.

[14] In the alternative, if the court disagrees that the circumstances of the offence and this offender merit a 25-month sentence (the equivalence of the PTCC to be applied), it was suggested that a further five months in custody would bring the total sentence to 2.5 years of imprisonment, which is appropriate in all of the circumstances.

[15] The Defendant submitted that whether the sentence is for two years or two and one-half years of imprisonment, it is not a lenient sentence.

DISCUSSION

Mitigating Factors

[16] The following factors are mitigating:

i. The parties agree that at the time of the offences the Defendant was only 19 years old, and he is now 20 years old;

ii. It is uncontested that although the Defendant was always in possession of the firearm, he was temporarily unable to access it at some point after completing the threatening offence, once he left the apartment to do his laundry;

iii. The parties agree that the pre-sentence report was favourable;

iv. The Defendant has the support of his mother, his pastor, and an employer. This was not contested by the prosecution;

v. The Defendant is remorseful for having committed these offences. This was not contested by the prosecution; and

vi. The Defendant wants to rehabilitate himself and lead a pro-social life. This was not contested by the prosecution.

Aggravating Factors

[17] The following factors are aggravating:

i. The parties agree that the Defendant was found guilty, conditionally discharged, and placed on probation for 12 months for carrying a concealed weapon (s. 90), less than three months before these offences;

ii. Based on the testimony of Andrea Conroy, which I accept, I am satisfied beyond a reasonable doubt that the Defendant can be heard yelling in the background on the 911 call (Trial Exhibit 1A). The evidence of the police officers on scene support a finding beyond a reasonable doubt that the Defendant was in an agitated and emotional state when they arrived. The parties agree that the Defendant lived in the apartment and there is no dispute that he was trying to get back inside when the police arrived. The parties agree that this was an emotionally-charged situation to which the police were called to respond;

iii. It is aggravating that the Defendant made a threat to damage property during a familial conflict with his mother while in possession of a loaded handgun. Loaded firearms are sufficiently dangerous to persons unlicensed and untrained to use them safely and are even more dangerous when coupled with threatening behaviour;

iv. The Defendant has no firearms lawfully registered to him (see Trial Exhibit 5), including the firearm recovered in his possession;

v. The firearm was loaded with six live rounds of ammunition capable of being discharged by the firearm (see Trial Exhibit 3);

vi. The firearm 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);

vii. The firearm is a handgun. Handguns are more easily concealed than long guns;

viii. Based on its barrel length (76mm – see Trial Exhibit 4), the firearm is a prohibited firearm.[^2] In Canada, private individuals are not permitted to possess prohibited firearms, except as authorized by s. 12 of the Firearms Act. There is no dispute among the parties that the Defendant was not entitled to possess a prohibited firearm;[^3]

ix. The firearm is a semi-automatic handgun (see Trial Exhibit 4). Once a round of ammunition is chambered,[^4] it can be discharged with a single pull of the trigger. The diminutive size, semi-automatic mechanism,[^5] and one-handed functionality (see Trial Exhibit 4) make this weapon extremely dangerous; and

x. The firearm had a serial number which was obliterated (see Trial Exhibit 6). Trial Exhibit 2E (a photograph of the firearm) makes it clear that anyone looking at the firearm would immediately know that the serial number has become unreadable. The firearm was found on the dresser in the Defendant’s bedroom with the obliterated serial number face up (Trial Exhibit 2B). A firearm without a visible serial number makes is untraceable to any person and unlawful for all purposes in Canada. This firearm is a “true crime” gun.

Neutral Factors

[18] 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. The trial took place over 9 days of court time;

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 a loaded 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. Rolling papers, a lighter, and a green/brown substance in a clear plastic baggy (resembling marihuana) were found within inches of the loaded firearm. It is unknown whether the substance was analyzed, or the results of any analysis, so the proximity of these items to the firearm is not considered an aggravating factor;

vi. There were no injuries suffered by the Defendant, his mother, any other occupant of the Defendant’s apartment complex, or the police who conducted the investigation; and

vii. The Defendant has been held in custody since his arrest for these offences. This is neutral for at least two reasons: i. The sentence will take pre-trial custody into account before determining whether further imprisonment is warranted and the type of custodial facility within which it will be served; and ii. The Defendant will receive almost 2:1 credit for the time already spent in custody.

Circumstances of the Defendant

[19] The Defendant is a young man with a short work history and a grade 9 education. He has no dependents, but indicated to the pre-sentence report writer and the court (during his allocution) that he wants to become a parent and have a family.

[20] The Defendant has committed a related offence in the past, which was far less serious, for which he was conditionally discharged, not convicted.

[21] The Defendant has support from his mother, the complainant in this matter. She has a lengthy criminal record and a difficult past but loves the Defendant and wants the best for him. The Defendant has no apparent relationship with his father.

[22] The Defendant is known by his mother and pastor to be kind, hard-working, and currently 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 lengthy trial.

[23] The Defendant is bi-racial and has personally experienced bigotry both within and outside his family. His maternal grandfather, for instance, has not treated the Defendant with respect because the Defendant is a person of colour and his grandfather is not.

Sentencing Principles

[24] 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.

[25] 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.[^6]

[26] 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.[^7]

[27] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

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.[^8]

[28] 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.[^9]

[29] In the circumstances of this case, where both parties submit that a penitentiary sentence is warranted, it is trite to note that s. 718.2 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.

[30] Our Supreme Court has instructed that section 718 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.[^10] 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 youthful age.

Sentencing Range

[31] Although the Defendant submitted that a sentence of 25 months for these offences is appropriate he recognized that a sentence of three years or more is appropriate for these types of offences and the prosecutor’s submission is not outside of the range. As a “fall-back” position, the Defendant urged the court to find that a sentence of 30 months (five more months in custody) and 18 months probation would adequately meet all applicable sentencing principles.

[32] Save in one case, I did not find the sentencing authorities submitted by the parties were helpful to narrow the range or determine an appropriate sentence in this matter. The judgment of the Court of Appeal in Regina v. Mohiadin, supra, was helpful to re-iterate the range of sentence for this type of crime.

ANALYSIS

[33] The Defendant has been found guilty of four offences, three of which relate to a dangerous firearm obviously related to criminal possession (the serial number has been removed, there is no apparent registration for the firearm, and it is prohibited in Canada), in the context of a family dispute and raised emotions. The fourth offence is a crime of violence (a threat to damage property). The threat to individual and public safety in these circumstances was high.

[34] I have taken into account all of the mitigating and aggravating features of these offences and the circumstances of a very youthful, remorseful, bi-racial, young man who had already been found guilty of carrying a concealed weapon, shortly before this offence. Although he was conditionally discharged (suggesting the weapon or the circumstances of its possession were not immediately dangerous to others) less than three months prior, the Defendant did not learn to live a pro-social lifestyle. He committed these offences while on probation.

[35] The Defendant says that he is remorseful and I accept that.

[36] Ultimately, I reject the idea that 25 months of imprisonment and probation is appropriate in all of the circumstances to sufficiently denounce the Defendant’s conduct, address his moral culpability (taking into account his prior record and on-going probation, at the time), and deter him and others from committing similar offences.

[37] The fact that the firearm was possessed while loaded, left in plain sight, unsecured in any way and coupled with its unlawful provenance (it was sold or distributed to the Defendant in unlawful circumstances – no proper registration or license; it is a prohibited firearm for which there are few legitimate reasons to lawfully possess; and either it came to him with an obliterated serial number or he destroyed it; but once he came into or maintained possession of a prohibited firearm without a serial number, it became completely unlawful) demands a sentence toward the top end of the range. The possession of this firearm is bereft of any benign purpose: it is possessed strictly for criminality, destruction, and mayhem.

[38] Though no submissions were made in respect of further imprisonment during a global pandemic, I have also taken this into account. There is no doubt that serving any time in custody during this unprecedented time 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 during this health crisis.

[39] The prosecutor has argued that the three-year sentence which has been proposed (which is slightly below the top end of the range of 42 months for similarly situated offences and youthful, first-offenders) is appropriate in light of the circumstances that favour the Defendant’s prospects for rehabilitation. The Defendant does not take issue with the range suggested by the prosecutor, but submitted that the mid-point of 25 or 30 months is more appropriate for this particular offender. Even as between 25 or 36 months, the parties are not that far apart.

[40] Lastly, I did not consider the submission that our community suffers from increasing gun violence, currently. There was no evidence provided to support this. I live in this community. Currently, I am presiding over two other firearm trials in addition to this one. I am one of 25 criminal court judges on my bench. Perhaps this provides some idea of the nature of gun crime in this region. However, other than some vague impression, I have no sense of whether gun crimes in Peel Region are increasing, decreasing, or static. Had evidence supportive of the proposition been presented, it may have warranted a longer sentence.

[41] In the end, in light of the violence threatened, the dangerous nature of the weapon involved, and the circumstances of its possession (loaded, left unsecured and in plain-view for almost anyone in the apartment to see),[^11] I agree with the prosecutor that a global sentence above three years would have been warranted, but for the age, rehabilitative prospects, and family/community support of the Defendant.

[42] In all of the circumstances, including the post-trial remorse and the significant prospects for rehabilitation of a youthful and supported offender, I have concluded that a sentence of 36 months less PTCC is appropriate, globally for the firearms offences and a suspended sentence and probation, served concurrently, is appropriate for the threatening offence.

[43] The global sentence, concurrent on each firearm offence is 1,095 days (3 x 365) less 765 days (PTCC) for a remaining jail sentence of 330 days imprisonment, to be served in a provincial reformatory.

[44] In addition, I am placing the Defendant on probation for 18 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 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 anger management 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.

[45] I am suspending the passing of sentence on the threatening count and imposing probation for 18 months, concurrent in form, substance, and duration to the probation ordered above.

[46] Given that the ancillary orders were unopposed, I am satisfied that it is appropriate to order the following:

i. An Order pursuant to s.109(2) 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;

and

ii. An Order pursuant to s. 487.051(3)(b) (s. 95 is an offence for which the maximum punishment is more than five years, making this a secondary designated offence) for the taking of a sample of the Defendant’s DNA in circumstances that are hygienic and respectful of his privacy and bodily integrity, by a person qualified to take such samples.

[47] I wish Deshawn Conroy every success in his rehabilitation, for his sake and the sake of our community.

Released: 16 April 2021

Justice G. Paul Renwick

[^1]: During submissions, the parties suggested that 405 actual days should be credited as 761 days. 761 minus 405 = 356 additional days of credit. 356 = 87.9% of 405 (356 x100/405). I have multiplied 1.879 x 407 to reach 764.75, which is rounded up to 765 days of PTCC.

[^2]: Section 84 of the Criminal Code defines a prohibited handgun as one with a barrel length less than 105mm.

[^3]: This section of the Firearms Act includes exemptions for retroactive and continuous possession of prohibited firearms by those already lawfully in possession (or their kin), in specified circumstances.

[^4]: For semi-automatic handguns, in order to “chamber” a round (the mechanical movement of ammunition from the storage magazine into the firing chamber of the weapon), the user has to manually move the slide on top of the weapon less than 76mm (less than the entire length of the barrel) to the rear of its resting position and allow the internal spring mechanism to return the slide to its original position.

[^5]: A semi-automatic firearm reloads available rounds of ammunition from the magazine (after the initial round of ammunition has been moved into the firing chamber and discharged) with successive trigger pulls after each firing. In other words, the initial chambering of ammunition need not be repeated as the mechanism automatically reloads live rounds and discharges spent rounds with each successive trigger pull.

[^6]: R. v. Hamilton and Mason, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) at para. 102.

[^7]: Hamilton, supra, at paras. 90-91.

[^8]: R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92.

[^9]: See subsection 718.2(b) of the Code.

[^10]: R. v. Gladue, 1999 SCC 679, [1999] S.C.J. No. 19 at paras. 43 and 48.

[^11]: Query whether a visitor to the apartment going to use the washroom could have seen the weapon through the Defendant’s open bedroom door. The firearm was visible from the doorway of the bedroom.