ONTARIO COURT OF JUSTICE DATE: 2022 01 24 COURT FILE No.: York Region – Newmarket 4911-998-17-08297 4911-998-16-05141
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ZION LEWIS
Before: Justice Marcella Henschel on April 9, 2021, September 29, 2021, and October 20, 2021. Oral Reasons for Judgment delivered October 20, 2021. Written Reasons released on January 24, 2022.
Counsel: Kevin Stewart...................................................................................... counsel for the Crown Tyler Smith.............................................................. counsel for the defendant Zion Lewis
HENSCHEL J.:
A. Overview and Summary of the Facts
[1] Zion Lewis is 20 years old. On April 9, 2021 he plead guilty to being in possession of a loaded restricted firearm contrary to s. 95(2) of the Criminal Code. The offence occurred on October 11, 2019. At that time Mr. Powell was 18 years old.
[2] On October 11, 2019 York Regional Police responded to a radio call to attend a single motor vehicle accident in the area of Davis Drive and Warden Avenue near Newmarket. When police officers arrived at the scene of the accident a civilian witness told them that he had witnessed the motor vehicle go into the ditch. He said that two black males were involved in the accident and had left the scene. He advised that before the two men left the scene, they were looking for something under the front driver’s seat of the vehicle.
[3] The officers learned that the vehicle involved in the accident was owned by a person who had a number of outstanding firearms offences and they began to search the area for the owner of the vehicle. As they were searching, they located an Uber driver who advised that he was requested to pick-up someone named “Anthony” in the area of the collision. The Uber driver said he was instructed to go to the Newmarket Residence, located nearby, and he would receive a large tip.
[4] The police officers went to the Newmarket Residence and canine officers attended. They conducted a search of the area and located Zion Lewis and Rushon Powell in the forest. Mr. Lewis was in possession of a Black Smith and Wesson 9 mm loaded handgun. Officers found the gun on the ground close to him. The firearm utilized a single stack magazine which was loaded with eight rounds of ammunition. An additional round of ammunition was in the chamber of the firearm.
[5] Mr. Powell was in possession of a metallic colored .357 Magnum revolver. It was loaded with six rounds of ammunition. The gun was located on the ground near Mr. Powell.
[6] The officers arrested Mr. Lewis and Mr. Powell and conducted pat down searches of both men. Mr. Powell was in possession of three baggies containing purple fentanyl, one baggie of crack cocaine, three chargers, three cells phones, phone cords, a large amount of money, various items related to the motor vehicle, four sets of keys, and photo identification in name of Anton Marquee.
B. Personal Circumstances of Mr. Lewis
[7] A pre-sentence report was prepared by probation officer, Angela Larke. An enhanced pre-sentence report was prepared by Michelle Richard, a social worker. The two reports provide detailed information about Mr. Lewis’s and background and personal circumstances. The reports provide insight about the social context in which the offence was committed.
[8] Mr. Lewis is now 20 years old. He was born in Toronto. He has a dedicated, loving, and supportive family. He was raised by his mother, Andrea Green, whom he is very close to. He was also raised by his paternal grandmother, Hyacinth Williams. Mr. Lewis’s opportunity to have a relationship with his father was taken away from him when his father, Michael Lewis, was shot and killed when Mr. Lewis was only two-weeks old. Michael Lewis was an innocent bystander. Michael Lewis was described by Ms. Green and Mr. Lewis as someone who was well known and respected in his community. He was a DJ, promoter, and a community activist who hosted community events. Mr. Lewis continues to feel the void in his life created by his father’s absence.
[9] Ms. Green remarried approximately twelve years ago. Mr. Lewis has a positive relationship with his six siblings, four sisters and two brothers.
[10] Following the death of Mr. Lewis’s father, when Mr. Lewis was approximately one year old, Ms. Green decided to move her young family to Barrie to protect her children from growing up in the environment that led to the loss of their father. Ms. Green has worked diligently to provide for the emotional and physical needs of her children.
[11] Mr. Lewis and his older brother lived with their grandmother in the Lawrence Heights area of Toronto for a number of years in elementary school and attended the Catholic school that their father attended as a child. Mr. Lewis’s grandmother was actively involved in his schooling and life. Mr. Lewis advised Ms. Richards that it was not difficult to be away from his mother because he was in the loving hands of his grandmother. He would return to his mother’s home in Barrie on the weekends.
[12] When Mr. Lewis was in grade 3, he moved to Malton with his mother and siblings. In Grade 5, the family moved from Malton back to Barrie. Mr. Lewis continued to live in Barrie until Grade 11. After Mr. Lewis returned to live with his mother, he continued to visit his grandmother on weekends and spent every summer with her until he was 14. At 14, he became more aware of the violence in the Lawrence Park neighborhood and chose to limit his time there.
[13] Mr. Lewis adjusted easily to the various geographic moves that he experienced because he excelled academically, athletically, and socially and had the support of his family.
[14] Mr. Lewis advised Ms. Richards that because he was personable, athletic, and academically inclined, he was popular at his school in Barrie. However, he advised that the student population in Barrie was made up of predominately white children and the other students had different taste in music, dressed differently, and had different interests. He advised that although most of the teachers treated him well, he experienced racism and discrimination. Ms. Green advised that while Barrie provided a safer environment for her family, they were the only Black family in their neighborhood and her family experienced racism manifested as animosity and hostility from their neighbors.
[15] Mr. Lewis was a good student. In high school he achieved A’s and B’s and was athletic, excelling in basketball. In Barrie he was the captain of his basketball team.
[16] Although Mr. Lewis has strong academic abilities, he was frequently absent from school and, as a result, began attending an alternative high school in Barrie. In grade 11, Mr. Lewis decided to relocate to live with his maternal grandmother, Maria Keating, and attend high school in North York. He also stayed periodically with Ms. Williams until the time of his arrest. Mr. Lewis explained that in Barrie he felt the need to prove himself amongst his predominantly white counterparts and teachers. He explained that he decided to return to the GTA to attend school and live in a multicultural city where he fit in without effort.
[17] Mr. Lewis was in grade 12 at the time of his arrest. As a result of the arrest he did not complete high school.
[18] Mr. Lewis has an impressive employment history for a young man. He worked as a general laborer during his grade 9 school year doing driveway sealing with a long-time family friend, Darcy Barber. Subsequently, during his grade 12 school year, he worked in the construction field and learned how to dry-wall and complete other tasks associated with home building. Mr. Barber described Mr. Lewis in very positive terms. He indicated that Mr. Lewis was a hard worker. Mr. Barber indicated that he believes that Mr. Lewis has a successful future ahead of him and that he will put criminal activity behind him.
[19] Mr. Lewis has no difficulties with drugs or alcohol. He has no prior criminal record.
[20] Mr. Lewis acknowledges the seriousness of the offence and accepts responsibility for his conduct. He did not want to discuss the details of the offence with Angela Larke, the author of the initial pre-sentence report, but noted his involvement with the offence was a means of “protection” and to “feel safe”. He indicated that he did not want what happened to his father to happen to him.
[21] Mr. Lewis discussed the offence with Ms. Richards. He told her that his involvement in the offence came about as a result of his failure to appreciate the consequences of his actions and because of the company he was keeping. He advised that he was asleep as a passenger in the vehicle when the vehicle crashed.
[22] In her report, Ms. Richards indicated that Mr. Lewis reflected on some of the realities that influenced his thought process and actions, such as his relationship to troubled neighborhoods, where he developed the mindset of “survival of the fittest”. He told Ms. Richards that gun possession provided him with a sense of security, even though he was not involved in any neighborhood conflicts. Mr. Lewis advised Ms. Richards that he was not a stranger to gun violence, citing the death of his father and an acquaintance in 2017. He indicated that these events suggested to him that one’s life can be at risk even in the absence of criminal activity.
[23] Mr. Lewis advised Ms. Richards that his paternal grandmother did not allow him to play with toy guns as a child. He acknowledged the potential for guns to cause harm, stating that “guns are bad and as a man you try to avoid it”. However, he told Ms. Richards that there is a certain element of paranoia that governs life as a young black man, and “in the back of my mind, you feel safer with a gun”. He added that while guns are dangerous, they can also be protective stating “some people have guns, and you don’t want anybody to have an upper hand”. Mr. Lewis disclosed that because it was especially common for his peers to possess guns at the school he attended in North York while living with his grandmother, he felt the need to be on the defense. Mr. Lewis asserted that he has never possessed a gun in the presence of his family, however feelings of paranoia made it “necessary” when he was with particular friend groups or in certain environments even though he did not go places where he knew there would be trouble.
[24] Regarding the possession of guns, at p. 6 of the enhanced pre-sentence report Ms. Richards reported as follows:
He further explained that according to the same politics, if he is with friends and they encounter others who may have conflict with people from the Jungle, that alone is enough to put him at risk of harm. He explained that the risk of harm is not limited to the boundaries of the impoverished communities where his grandmothers respectively reside; harm can occur anywhere. Mr. Lewis advised that while he has had no direct involvement in neighborhood conflicts, he has been with peers who have been shot at in his presence on more than one occasion.
Mr. Lewis did not provide details about the issues that led to his peers being shot at, as it does not align with the neighborhood politics that discourage discussion about others…
[25] Ms. Richards further indicated at pp. 14 and 15 that “Mr. Lewis was direct in assuming responsibility for the choices that led to his charges. While he believes that his father’s presence would have potentially made a difference in his life as he transitioned into adulthood, he acknowledged that he had the family support system and socioeconomic structure to make different decisions”. Mr. Lewis “definitively expressed regret” for his decision to possess a firearm and to keep company with others who did the same. He expressed that his decisions were in “stark contrast to how he was raised and the opportunities that were available to him”.
[26] Mr. Lewis advised Ms. Richards that his future will not include further conflict with the law. However, he appreciates the challenges that a criminal record may present. He expressed feeling that his life is over before it has even begun. He indicated that given his concerns about risk of harm, it will be best for him in the future to limit his presence in certain parts of the GTA and to choose better company.
[27] Upon release, Mr. Lewis plans to live with his family in Barrie. He hopes to complete his high school education and would like to start a clothing business. He advised Ms. Richards that his future involves entrepreneurship with an interest in investing. He is looking forward to obtaining his driver’s license, employment, and travelling.
C. Pre-Sentence Custody
[28] Following his arrest on October 11, 2019, Mr. Lewis was detained until released following a bail review on January 22, 2020. At that time he was released on strict house arrest conditions that required him to be in his home at all times except when in the company of a surety or to travel to and from court, to meet with his lawyer, or while at school. He remained subject to these conditions for 15 months until he was re-arrested on April 16, 2021 for other matters. He has been in custody since that time.
[29] Mr. Lewis has experienced very harsh conditions while in custody.
- He was diagnosed with Covid-19 on May 19, 2021 during an outbreak within his pod. He indicated that the institutional response to the outbreak lead to a protest. He did not have access to a shower for two weeks, which he found especially concerning due to the importance of hygiene in minimizing the spread of the Covid-9 virus.
- Mr. Lewis’s diagnosis of Covid-19 caused him particular concern because he suffers from asthma and worried about how it would interact with his underlying conditions. He advised that he was provided with the inhaler that he requires.
- Mr. Lewis experienced a five-week lockdown. After the five-week lockdown he experienced a four-day lockdown due to water repairs. Otherwise lockdowns occurred on average twice a week.
- Mr. Lewis advised that he was unable to speak to his family and his defense calls were cancelled during part of his time in custody. As a result, he was unable to speak with his counsel during his first three weeks of incarceration. No visits were permitted for the first six weeks of his post-pandemic incarceration. He advised that visits have been resumed, but there is no institutional programming.
- Ms. Richards advised that Mr. Lewis did not attend his first scheduled call with her on May 20, 2021. She advised that when she did speak with Mr. Lewis on May 27, 2021, he was unable to proceed with the interview because he was audibly distressed. Ms. Richards advised that despite the difficulties he was facing, Mr. Lewis presented as in good spirits during his other contacts with her. He presented as trying to make the best of his difficult circumstances.
- Mr. Lewis told Ms. Richards that to cope with his circumstances he read books and developed a collegial relationship with his cellmate. He maintained that jail was a temporary experience in his life and directed his mind to envision his future including education, employment, travel, and entrepreneurship.
[30] Mr. Lewis spent 104 days in custody during his first period of detention. He was again in custody between April 16, 2021 and October 20, 2021, a total period of 294 days. If credit is given on a 1.5 to 1 basis, Mr. Lewis is entitled to credit for 441 days in custody.
[31] Mr. Lewis was on strict house arrest for 15 months between January 22, 2020 and his arrest on April 16, 2021.
[32] As of September 29, 2021, Mr. Lewis was subject to 109 days of full lockdown, involving lockdown periods of six hours or more. This approaches half his time in custody. There were many lengthy consecutive periods of lockdown as reflected in the lockdown report.
D. Position of the Parties
[33] Mr. Stewart submits that a sentence of three years should be imposed. He submits that such a sentence would be at the low end of the range having regard to the serious nature of the offence. He submits that such a sentence is necessary having regard to the need for denunciation while also recognizing the mitigating factors, including the social context in which the offence occurred.
[34] Mr. Smith submits that a sentence that is the equivalent to an 18 month sentence (which equals 547 days) is appropriate despite the seriousness of the offence because Mr. Lewis is a youthful first offender, and due to his personal circumstances including the circumstances of his pre-trial detention and the social context of the offence. Mr. Smith submits that, after credit is given for time in custody and Downes (R. v. Downes, 2006 ONCA 778) credit for the strict bail conditions, Mr. Lewis is in a time served circumstance. He submits that I should impose a suspended sentence and place Mr. Lewis on probation for a period of 2 years to assist in his continued rehabilitation.
E. Statutory Framework and Governing Legal Principles
[35] The Crown elected to proceed by indictment. As a result, the maximum penalty for possession of a loaded restricted firearm is a period of ten years imprisonment. The mandatory minimum punishment of three years jail was struck down by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15.
[36] According to s. 718 of the Criminal Code, the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful, and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely:
(a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[37] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
[38] Section 718.2 of the Code dictates that, in imposing sentence, the court must take into account a number of principles including the following:
(a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; [1] (b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, (e) All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[39] Gun crime is a matter of grave and growing public concern. Guns are designed to cause serious injury and death. Guns such as the one seized in this case are inherently dangerous and present an ultimate threat of death to those in their presence. A handgun such as the one possessed by Mr. Lewis serves no legitimate purpose to an individual who is not authorized to possess it. It is a “true crime” offence. In Nur, at para. 136, the Supreme Court of Canada emphasized that such guns are “primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill”.
[40] Sentences imposed for firearms offences must further denunciation, deterrence, and protection of the public. Appellate Courts have stressed that public protection can only be achieved through sentences that ensure that potential offenders know that their illegal possession of loaded handguns will be accompanied by serious penal consequences. The Ontario Court of Appeal has made clear that to combat the serious threat firearms pose to the community such offences must be met with exemplary custodial sentences that proportionally reflect the gravity of the crime and which appropriately stress the need to denounce and deter such crimes.
[41] The principles of denunciation and deterrence must be paramount in fixing an appropriate sentence. See R. v. Smickle, 2014 ONCA 49, at para. 18; R. v. Nur, 2013 ONCA 677, at para. 206, affirmed 2015 SCC 15; R. v McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ), at paras. 21-25.
[42] While the principles of denunciation and deterrence predominate, the principle of rehabilitation is still an important factor to be considered, especially in the case of a youthful first offender. McKenzie, supra, at para. 25. R. v. Morris, 2021 ONCA 680.
[43] Notably, in Nur, after striking down the mandatory minimum sentence, the Supreme Court of Canada upheld a three-year and four-month sentence for a nineteen-year-old first offender. The accused was in possession of a loaded firearm at a community centre and discarded it in a public place when chased by police.
[44] During his submissions, Mr. Smith relied heavily upon the trial decision of Justice Nakatsuru in R. v. Morris, 2018 ONSC 5186. After I heard submissions in this case, the Ontario Court of Appeal released their decision in Morris on October 8, 2021. R. v. Morris, 2021 ONCA 680.
[45] Morris has factual similarities to this case and is very relevant to the determination of a fit sentence. In Morris the Court of Appeal reiterated the seriousness of gun crime and the need for denunciation and deterrence at paras. 68, 70 and 71:
…Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 SCC 36, [1993] 4 S.C.R. 199, at pp. 214–15.
….When the gravity of the offence demands an emphasis on the objectives of denunciation and deterrence, the proportionality principle will most often require a disposition that includes imprisonment.
…..Gun Crimes involving the unlawful possession of loaded handguns in public places fall squarely within the category of offences that require sentences emphasizing denunciation and general deterrence.
[46] Morris also addressed the role of social context evidence in arriving at a fit sentence. In relation to social context evidence, such as that described in the enhanced presentence report in this case, Morris set out the following governing principles, at paras. 1 and 13:
- It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been and continues to be a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, including the criminal justice system.
- Anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis.
- Social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;
- The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender's degree of personal responsibility, an offender's experience with anti-Black racism does not impact on the seriousness or gravity of the offence;
- Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes, and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
- Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
- The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.
[47] Mr. Morris was found guilty after a trial of possession of a loaded prohibited/restricted handgun contrary to s. 95 of the Criminal Code as well as two other related gun charges contrary to ss. 91 and 92 of the Criminal Code. The s. 91 charge was stayed. Mr. Morris was in possession of a loaded .38 caliber Smith and Wesson handgun. The trial judge sentenced him to 1-day jail in addition to 243 days credit given for pre-trial custody and 3 months credited to him as a result of a Charter breach. Ultimately, the trial Judge imposed a sentence that was the equivalent of a 12-month sentence.
[48] The underlying facts were that Mr. Morris was arrested after officers were investigating a home invasion robbery and saw four black men walking in a parking lot in the vicinity of the robbery. Two of the men went to one vehicle parked in the lot and Mr. Morris and the fourth man walked toward a second vehicle. One of the officers used his vehicle to block the path of the vehicle Mr. Morris was walking toward. When plain clothes officers identified themselves as police officers and told Mr. Morris and the other man to stop, Mr. Morris fled. The trial Judge was not satisfied that Mr. Morris heard or understood the plain clothes officer’s direction to stop during the first interaction.
[49] When Mr. Morris fled another officer drove his vehicle towards Mr. Morris to attempt to stop him and ran over Mr. Morris’s foot. Mr. Morris got up and fled, scaled a fence, and ran into a parking lot. He was pursued by uniformed police officers who identified themselves as officers and told him to stop.
[50] The trial Judge found that Mr. Morris heard and understood the uniformed officers but kept running. As he fled, Mr. Morris ducked into a stairwell. When he remerged, he was no longer wearing the jacket he had previously been wearing. The officers caught up to Mr. Morris and he was placed under arrest. A loaded .38 caliber Smith and Wesson handgun was found in his jacket in the stairwell. There was no evidence that Mr. Morris or any of his companions were responsible for the robbery the officers were investigating.
[51] The trial judge found that the officer who struck Mr. Morris with the police vehicle was driving quickly and aggressively and that he carelessly struck Mr. Morris in violation of his s. 7 Charter rights. This finding resulted in the three-month deduction from Mr. Morris’s sentence.
[52] With respect to the personal circumstances of Mr. Morris, he was 22 years-old at the time of the offence and 26 years-old at the time of sentencing. He had no criminal record. He had been attacked and stabbed by an acquaintance several years before the offences and suffered serious internal injuries which interfered with his ability to obtain employment and caused him problems while incarcerated. He suffered from post-traumatic stress disorder as a result of the stabbing.
[53] An enhanced presentence report, similar to that before the court in this case, was prepared and research materials were tendered that described and analyzed research that has been done on the existence, causes, and impact of anti-Black racism in Canadian society, especially in the Toronto area.
[54] The Court of Appeal found that the trial Judge made errors in principle that had a material impact on the sentence. The Court of Appeal held that the trial judge erred in finding that systemic racism and its impact on Mr. Morris mitigated the seriousness of the offences and reduced the significance of the objective of denunciation and general deterrence in the fixing of an appropriate sentence. However, the Court of Appeal found that the social context of the offence was a factor relevant to the moral blameworthiness of the offender.
[55] The Court of Appeal held that the trial judge imposed a sentence that was far below the range described in cases like Nur and Smickle and in so doing erred in principle by deprecating the seriousness of the offence committed by Mr. Morris and the need to unequivocally denounce the criminal conduct engaged in by Mr. Morris through the sentence imposed on him. The Court found that the trial judge’s reasons overstated the impact of Mr. Morris’s circumstances on his ability to choose whether or not to arm himself with a loaded concealed handgun.
[56] The Court of Appeal held that Mr. Morris’s actions fell on the “true crime” end of the spectrum of the conduct prohibited by s. 95, reiterating that both the Court of Appeal and Supreme Court of Canada have indicated that crimes like those committed by Mr. Morris called for denunciatory sentences.
[57] The Court of Appeal emphasized that in most cases penitentiary terms will be required, although in some situations where there are strong mitigating factors, sentences at or near the maximum reformatory sentence of 2 years less a day may be imposed. At para. 180 the Court of Appeal stated that “Taking into account the mitigating and aggravating factors, the trial judge could have imposed a sentence ranging from a sentence at or near the maximum reformatory term, to a penitentiary sentence of three years”.
[58] The Court of Appeal also noted that, as in this case, no one had suggested Mr. Morris should receive a conditional sentence because he was in custody on other charges. Notably, the Court did not exclude a conditional sentence as potentially an appropriate sentence for s. 95 offences where a sentence of less than 2 years was appropriate in accordance with the principle of restraint.
[59] Ultimately, the Court of Appeal concluded that a sentence of two years, less a day with credit for pretrial custody on a 1.5:1 basis and probation for 18 months was a fit sentence. In the circumstances of the case, and with the consent of the crown, the Court imposed a stay of the imposition of sentence.
F. Mitigating Factors
[60] In determining a fit sentence in this case, I am aware of the serious nature of the offence, and the danger to the community that gun crimes pose. I am aware of the need for denunciation and deterrence, while also recognizing the importance of rehabilitation for a youthful first offender. I have considered Mr. Lewis’s personal circumstances including the social context of the offence in assessing his moral blameworthiness.
[61] The relevant mitigating factors include the following:
- Mr. Lewis is a very youthful first offender. He was an 18-year-old high school student when the offence was committed. He turned 18 only three months prior to the offence.
- He entered a guilty plea and indicated his intention to do so from an early stage.
- His rehabilitative prospects are strong. He is remorseful for his conduct and has the strong desire to make better choices in the future. He is intelligent and hard working.
- In addition to demonstrating his acceptance of responsibility through his guilty plea, he accepted responsibility in the pre-sentence report and the enhanced pre-sentence report, and he apologized in a thoughtful and genuine statement to the Court.
- The PSR and enhanced pre-sentence reports were very positive. Significantly, Mr. Lewis has a stable and supportive family environment. He has the ongoing support of his mother, stepfather, siblings, cousins, and his grandmothers.
- He has been subject to extremely harsh conditions during his time in presentence custody including contracting Covid-19. I have taken this factor into account as a mitigating factor in accordance with R. v. Marshall, 2021 ONCA 344. He was also subject to a period of strict bail conditions for 15 months.
- Mr. Lewis has experienced anti-black racism, a factor that contributed to his decision to leave his family in Barrie and move to North York where he was living when he became involved in the index offences. His safety concerns associated to violence in the area where he was living contributed to his involvement in the offence.
G. Aggravating Factors
[62] There are a number of aggravating factors that must also be considered. Mr. Lewis was found in possession of a loaded firearm with a round in the chamber while being tracked by the police after he and Mr. Powell left the scene of a car accident. The gun was recovered by the police from the ground near Mr. Lewis. While unsuccessful, it appears that he made some attempt to discard or hide the weapon in a public place, so it was no longer in his physical possession.
[63] Mr. Lewis’s co-accused, Mr. Powell was similarly armed with a loaded handgun and was in possession of controlled substances for the purposes of trafficking. While Mr. Lewis has not been found to be in possession of the drugs, his association with Mr. Powell is concerning, especially given both were in possession of handguns.
[64] Mr. Lewis’s possession of a loaded firearm with a round in the chamber in these circumstances presented an immediate and grave risk to the officers who were investigating him, to his co-accused, and to himself. The handgun he possessed is an inherently dangerous weapon capable of instantly causing grievous bodily harm or death. The offence constituted a “true crime” possession of a firearm. This is not a circumstance, as described in Nur, where the conduct is closer to that of a regulatory offence. This was not a hunting firearm stored close to ammunition. There was no legitimate purpose for Mr. Lewis’s possession of the handgun.
[65] The ongoing prevalence of gun crime and the devastating consequences of offences involving firearms are important aggravating factors.
[66] The report of Ms. Richards provides important social context that affords insight into why Mr. Lewis came to possess a firearm as a result of his perception that it was necessary for self-protection. I wish to emphasize that the social context in which the offence occurred does not justify his decision. I accept that the social context evidence speaks to the moral blameworthiness of Mr. Lewis. However, it does not reduce the seriousness of the offence.
[67] The suggestion that a decision to possess a firearm for general safety reasons is a “limited” mitigating factor must be approached with caution, I am mindful of the sentiments expressed by Justice Trotter in R. v. Powers, 2007 ONCJ 619, at para. 25, that to afford leniency to those who arm themselves with handguns for the purpose of self-protection would “turn the firearm provisions of the Criminal Code on their head and exacerbate a very serious social problem”. “The belief that a gun is an effective and legitimate means of self-protection is one that must be rejected, clearly and absolutely”. Such a mindset inevitably leads to use of firearms and loss of life. (Powers, at para. 24 citing Nordheimer J. in R. v. Grant, [2005] O.J. No. 4599 (SCJ), at para. 35).
[68] The assertion that Mr. Lewis required a gun for self-protection cannot be allowed to in any way justify his possession of a loaded handgun that exposed the police officers he dealt with, he, and Mr. Powell and members of the public to a real and significant danger. It is this mindset that has contributed to the ongoing loss of life in the GTA communities that are plagued with gun violence. His belief that he needed the gun for self-protection in no way decreases the seriousness of the offence.
[69] At the same time, the totality of Mr. Lewis’s personal circumstances, including that racism that has impacted his life and decisions, must be considered in assessing his overall moral blameworthiness. I accept that Mr. Lewis’s life experiences influenced the choices made by him and speak to the degree of his moral responsibility for the offence. His life experiences included societal disadvantages that flowed from systemic anti-Black racism in society. (See Morris, at para. 75). I accept that given the nature of his father’s death, and the experience of his friends in the GTA, he feared that he may experience violence in his community. He chose to live in the North York area in part, because of the impact of racism on him.
[70] As was the case for Mr. Morris, Mr. Lewis’s own experiences in his community, strongly demonstrate the very real and deep harm caused to the community by persons who, like Mr. Lewis, choose to engage in dangerous criminal conduct that inevitably compromises the security of the entire community.
H. Conclusion:
[71] Clearly, in this case, as in Morris, deterrence and denunciation must be the paramount objectives. They require a significant jail term.
[72] However, in my view, as in Morris, Mr. Lewis’s youthfulness and his personal circumstances, including the social context evidence, support the conclusion that the fundamental purpose of sentencing as outlined in s. 718 is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender.
[73] The ultimate sentence imposed must be tailored to the specific offender and the potential rehabilitation of that offender. As noted, I believe that Mr. Lewis’s rehabilitate potential is significant. Mr. Lewis at one point expressed to Ms. Richards that his life was over as a result of the offence. He is a young man with great potential to put criminal conduct behind him and who can achieve great success in his future.
[74] While the Crown has properly pointed out that the Morris decision featured a Charter breach that led to a reduction in the sentence, in my view there are mitigating factors present in this case that were not present in the Morris decision. Specifically, Mr. Lewis plead guilty. Further, Mr. Lewis has experienced very harsh conditions while in custody awaiting his trial.
[75] Considering all of the facts, the relevant legal principles, and the appropriate range of sentence as identified in the authorities, including Nur and Morris, in my view a sentence of 18 months is appropriate. The determination of the 18-month sentence has been arrived at taking into account the harsh conditions under which Mr. Lewis has spent pre-trial custody as a significant mitigating factor. I have also considered the strict bail conditions as a mitigating factor in arriving at the 18-month sentence.
[76] From the 18-month sentence (547-day sentence) the period spent in pre-trial custody of 294 days credited on a 1.5 to 1 basis, which equals 441 days, will be deducted. This means there is 106 days remaining to be served.
[77] The custodial sentence will be followed by a period of probation of 2 years.
[78] The probation order shall include the statutory terms outlined in s. 732.1(2) of the Criminal Code. Mr. Lewis must:
- Keep the peace and be of good behavior;
- Appear before the court when required to do so by the court;
- Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation;
[79] Mr. Lewis will be subject to the following additional optional conditions.
- Report by telephone to the probation officer within 5 days of his release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision.
- Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.
- Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with Rushon Powell.
- Do not attend within 100 meters of any place that he knows Rushon Powell to live, work, go to school or frequent or any place he knows him to be, except for required court attendances.
- Not possess any weapons as defined by the Criminal Code.
- Attend and actively participate in assessment, counselling, or rehabilitative programs as directed by a probation officer and complete them to the satisfaction of the probation officer.
- Sign any release of information forms as will enable a probation officer to monitor attendance and completion of any assessments, counselling or rehabilitative programs as directed.
- Provide proof of attendance and completion of any assessments, counselling, or rehabilitative programs as directed.
- Make reasonable efforts to seek and maintain full time employment or attend school or an educational or training program approved of by your probation officer on a full-time basis and provide proof as required by your probation officer.
I. Ancillary Orders
[80] Mr. Lewis is also subject to a firearms prohibition order. Under s. 109 of the Criminal Code, Mr. Lewis is prohibited for life from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance.
[81] Mr. Lewis is also subject to a DNA databank order. Possession of a loaded prohibited firearm is a secondary designated offence. Having regard to the serious nature of the offence and the circumstances surrounding its commission, the absence of a criminal record, and the limited impact the order will have on his privacy, I am satisfied that it is in the best interests of the administration of justice to require Mr. Lewis to provide a DNA sample in accordance with s. 487.03 (b) of the Criminal Code.
[82] The .357 Magnum Revolver is forfeited for destruction.
[83] I will waive the victim fine surcharge. I am satisfied it would cause undue hardship to impose the surcharge having regard to the time spent in custody by Mr. Lewis and the further period of custody that has been imposed.
Released: January 24, 2022.
Signed: Justice Marcella Henschel
[1] Parliament has set out a number a statutorily aggravating factors in s. 718.2(a) (i.to vi).
