Ontario Court of Justice
Date: 2022 06 23 Toronto
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
COBY MCPHERSON
Before: Justice Newton-Smith
Heard on: November 8, 2021 and June 1, 2022 Reasons for Judgment released on: June 23, 2022
Counsel: H. Keating, counsel for the Crown J. Louch, counsel for the accused Coby McPherson
Newton-Smith J.:
[1] Mr. McPherson plead guilty to discharging a firearm contrary to section 244.2(1)(b) of the Criminal Code, and being in possession of a firearm while prohibited contrary to section 117.01(1).
The Facts
[2] On November 13, 2020 at around 5:30 in the afternoon the police received a radio call for gunshots fired in the Swansea Mews.
[3] The Swansea Mews is a public housing development in the city’s west end. It is made up of two stories of townhouses with an upper courtyard from which all of the second story townhouses are accessible, and which all look onto it.
[4] Mr. McPherson and another male walked out of a townhouse in the complex’s upper level and across the courtyard towards the stairwell to the ground level. They were going to get pizza. Mr. McPherson brought a loaded firearm with him.
[5] When they were on a pathway on the ground level shots were fired at Mr. McPherson. Mr. McPherson returned fire and fled back towards the upper level townhouse. He ran up the stairs to the upper courtyard. While running across that courtyard Mr. McPherson indiscriminately fired his gun over his shoulder multiple times before seeking shelter in the townhouse. Mr. McPherson and the person with him were arrested shortly thereafter.
[6] When Mr. McPherson plead guilty to the above two counts the charges against his co-accused, the person who was with him, were withdrawn at the request of the Crown.
Mr. McPherson’s Circumstances
[7] A thorough and carefully considered pre-sentence report [PSR] was prepared.
[8] Mr. McPherson is 19 years old. He is a young white man who grew up in the Swansea Mews area. His childhood was not easy. At around the age of 4 his father left. Mr. McPherson and his sister were raised by their mother who suffered from mental health issues, as well as physical health issues and addictions issues. She died in 2018 from a drug overdose.
[9] Mr. McPherson’s father is now back in his life and, according to the PSR, a positive source of support for him. His sister is also a positive source of support. They attended the sentencing proceedings.
[10] Mr. McPherson has a criminal record that begins in youth court in 2016. His last conviction was in youth court on October 28, 2019. It was for aggravated assault. He received a custodial disposition. While the record is lengthy, especially for someone as young as Mr. McPherson, it does not contain any convictions for gun offences.
Aggravating Factors
[11] These are very serious offences, and there are significant aggravating factors.
[12] It was a brazen and callous shooting in a residential complex at 5:30 in the evening, a time when people are most likely to be coming and going.
[13] There were multiple shots fired.
[14] The complex has surveillance cameras which captured most of the incident. Just prior to the shooting an elderly gentleman can be seen walking across the courtyard with the assistance of a walker. It would have been obvious to anyone that this was just the time when people would be most likely to be coming home from work, bringing children home from daycare and otherwise be around the complex and courtyard.
[15] Mr. McPherson took a gun with him to get pizza.
[16] He has a serious and lengthy criminal record. The first entry was when he was just 14 years old. The record includes three crimes of violence; two convictions for assault with a weapon and one for aggravated assault. He was convicted of the aggravated assault a year prior to the commission of these offences.
[17] That is the reason for which he was on a weapons prohibition at the time of the commission of these offences.
Mitigating Factors
[18] There are also mitigating factors.
[19] Mr. McPherson is young. He had just turned 18 when this happened and is now 19 years old.
[20] This is his first adult conviction.
[21] He has had a life of little advantage and much hardship.
[22] Throughout her life his mother tried to be loving and supportive, but she struggled.
[23] His upbringing was far from stable and secure. Mr. McPherson lived at times in foster care and was a crown ward.
[24] He now only has his father and sister, having suffered the tragic loss of his mother due to a drug overdose when he was just 15 years old.
[25] He has reconnected with his father who is now a positive source of support.
[26] Luckily Mr. McPherson also has a very supportive sister. She is an accomplished university student and a role model for Mr. McPherson.
[27] Mr. McPherson suffers from ADHD and depressive disorder. He also has insomnia.
[28] While in custody he has worked hard to complete high school and is now just 3 credits shy of a high school diploma.
[29] He plead guilty to these charges.
Mr. McPherson’s Evidence
[30] Mr. McPherson testified at the sentencing hearing.
[31] He says that he shot to protect and save himself.
[32] From the PSR it can be seen that he has been immersed in a life and lifestyle that entails violence.
[33] Such that he arms himself to go out for pizza.
[34] It is understandable, given the challenging childhood that he had, that Mr. McPherson would seek family amongst his peers.
[35] He is just the kind of disadvantaged youth who is susceptible to the pressures and attractions of gang life and culture.
[36] But at the same time Mr. McPherson well knows how hard life can be and that those living in housing complexes such as the Swansea Mews often face much hardship and are as deserving as anyone of living a life free of gun violence.
[37] Unfortunately, Mr. McPherson chose to be part of the problem by arming himself with a gun and shooting it repeatedly in the midst of the complex which is home to many, and many people like him.
[38] Mr. McPherson apologised to the court. I accept his apology. And understand that apology to be directed at the community whose lives he jeopardised.
[39] I also accept and am greatly encouraged by Mr. McPherson’s genuine desire to leave the criminal lifestyle behind and become a productive member of the community.
[40] Mr. McPherson testified that he never meant to cause any violence that day.
[41] However, carrying a gun is itself a form of violence. This is something that Mr. McPherson and others like him must understand.
Law and Analysis
The section 244 offence, pre-sentence custody and mandatory minimums
[42] Four years is the mandatory minimum sentence on the discharge firearm offence. Counsel both agree that that is the appropriate sentence. So do I.
[43] Where the Crown and defence part ways is on how much of that sentence Mr. McPherson has already served, and how much he has left to serve.
[44] The Criminal Code provides in section 719 that a court may consider time already served in pre-sentence custody as part of the sentence and give a maximum credit of 1.5 days for each actual day spent in pre-sentence custody. This is known as Summers credit.
[45] Another form of credit, known as Duncan credit, has also arisen in the jurisprudence.
[46] The question of pre-sentence custody, and how to apply Duncan and Summers credit, was addressed by Justice Doherty speaking for the Ontario Court of Appeal recently in R. v. Marshall 2021 ONCA 344:
The Summers credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served…
The Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence…
Because the Duncan credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[47] As I read this guidance from our Court of Appeal, when it comes to mandatory minimum sentences Duncan credit cannot be applied to reduce a sentence below the mandatory minimum. In such circumstances only Summers credit can be taken into account.
[48] This is because imposing a sentence that is less than the mandatory minimum is by definition to impose a sentence which is inappropriate according to Parliament.
[49] I agree that 4 years is the appropriate sentence for Mr. McPherson with respect to the discharge firearm offence.
[50] It marks Mr. McPherson’s first, and hopefully only, adult conviction.
[51] It is an offence that he committed having just turned 18 years old.
[52] It is a very significant and serious sentence which prioritises denunciation and deterrence and sends the necessarily strong message that is called for when an offence of this nature is committed in these circumstances.
[53] As of today’s date Mr. McPherson has spent 528 real days in custody. With Summers credit at 1.5 that is the equivalent of 792 days. That amount of Summers credit is appropriate here.
[54] Four years is 1460 days.
[55] Therefore Mr. McPherson has 668 days remaining on that sentence.
The section 117 offence and consecutive versus concurrent sentences
[56] Mr. McPherson has also plead guilty to possessing a firearm while prohibited from doing so contrary to section 117.01(1).
[57] This is again his first adult conviction and his first, and hopefully only, firearms offence.
[58] He was subject to a prohibition not by virtue of having previously being convicted of a firearms offence but by virtue of the aggravated assault conviction on his record.
[59] I do not say this because it is somehow mitigating, but because it would be a further aggravating factor if this was a subsequent firearms offence.
[60] When it comes to sentencing on a section 117 offence, I am guided by the jurisprudence from our Court of Appeal which states that possession while prohibited offences should be consecutive to the possession of a firearm charge: R. v. Claros, 2019 ONCA 626 at para 51.
[61] There is nothing in the circumstances of this case to suggest a departure from that general rule.
[62] Using a firearm while prohibited from doing so is not an aggravating factor, it is another offence to which he has plead guilty.
[63] Making that sentence consecutive is an important acknowledgement that it is a separate and serious offence.
[64] The sentence on the section 117 offence should be consecutive.
[65] Given that there is no mandatory minimum for that offence I can consider Duncan credit.
[66] Serving pre-sentence custody during the Covid pandemic, as Mr. McPherson has had to do, is precisely the kind of mitigation that is contemplated by Duncan credit: Marshall, at para 50.
[67] I am also, as I feel I must, considering the fact that when Mr. McPherson entered his guilty plea he understood that the Crown was agreeable to a concurrent sentence on the section 117 charge.
[68] By the time that the matter came before me for sentencing, the Crown’s position, having reviewed the Court of Appeal jurisprudence was that the section 117 offence should be consecutive.
[69] I do not in any way fault the crown for now taking this position.
[70] It is, in my view, correct in law.
[71] However, Mr. McPherson’s understanding when he entered the plea is a circumstance that I consider.
[72] I also consider that when Mr. McPherson’s Summers credit is accounted for, the imposition of the 4 year sentence on the discharge firearm offence will still keep him in the reformatory system.
[73] The length of the sentence that he receives on the section 117 offence will determine whether or not he is sent to the penitentiary.
[74] Mr. McPherson is an impressionable young man. He is a very young man, having just turned 18 at the time of the commission of these offences. He is now just 19 years old.
[75] He has had a very troubled, unstable and insecure upbringing.
[76] He told the author of the PSR, “I grew up in a lifestyle and had to learn how to survive on my own”.
[77] The PSR also notes that he has been identified by police as a member of the Swansea Bloods gang.
[78] Mr. McPherson, it is observed in the PSR, relies heavily on the support and loyalty of his peers, some of whom are in conflict with the law.
[79] It is clear from the nature and circumstances of this offence, from the fact that Mr. McPherson chose to arm himself in order to go for pizza, from the observations contained in the PSR and from his evidence before this court on the sentencing hearing, that Mr. McPherson is influenced by his surroundings and by negative peer groups.
[80] If there is a choice between placing someone like Mr. McPherson in the reformatory system or sending him to the penitentiary, the principles of rehabilitation and frankly in Mr. McPherson’s case, specific deterrence pull strongly towards keeping him in the reformatory system.
[81] This is a factor that I have also considered in determining a fit overall sentence for Mr. McPherson, and in particular in determining how long the consecutive sentence on the section 117 offence should be.
[82] In consideration of totality and the overall sentence that I am imposing on Mr. McPherson, of the circumstances under which he served his pre-sentence custody, his age and vulnerability to negative peer influences, I find that a further 2 months, or 60 days, to be served consecutive to his sentence on the section 244.2 offence is appropriate for the section 117 offence.
[83] Mr. McPherson’s total remaining sentence will be 729 days, or 2 years less a day.
Released: June 23, 2022 Signed: Justice Newton-Smith