ONTARIO COURT OF JUSTICE

CITATION: R. v. Rudder, 2022 ONCJ 367

DATE: 2022-06-24

BETWEEN:

Her Majesty the Queen

— and —

Korey Rudder

Sentencing Judgment

D. A. Smith ............................................................................................ Counsel for the Crown

G. Leslie............................................................................................ Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Rudder

I. Introduction 2

A. Introduction 2

B. Sentence Positions 3

C. Sentence 3

II. Reasons for Sentence 5

A. Circumstances of the Offence 5

B. Background of the Defendant 5

C. Aggravating and Mitigating Factors 6

1. Mitigating Factors 6

a) Credit for Stringent Judicial Interim Release Conditions - Downes 6

b) Addiction as a Mitigating Factor 6

2. Aggravating Factors 7

a) Illegal Firearms and the Greater Toronto Region and Community 7

b) True Crime Versus Regulatory Spectrum 9

c) Criminal Record of the Defendant 9

3. Factors – Neither Mitigating nor Aggravating 10

a) Prior Record 10

b) “Simple” Possession 10

c) Credit for Pre-Sentence Custody 10

d) Credit for Harsh Custodial Conditions (“Duncan Credit”) 11

e) Collateral Consequences 12

(1) Anti-Black Racism 12

(2) Immigration Consequences 12

(3) COVID -19 13

D. Purpose and Principles of Sentencing 13

E. The Sentence 14

III. Appendix A – Sentencing Chart – R v. Rudder 16

I. Introduction

A. Introduction

[1] This is the sentencing of Korey Rudder after trial in relation to several indictable Criminal Code [Code] offences arising out of his possession of a loaded prohibited or restricted firearm. The central focus is the sentence concerning s.95(1) of the Code. I heard submissions three weeks ago and granted an adjournment for the Crown and Defence to address additional issues and provide additional submissions. Today I will provide an oral judgment rendering sentence. In addition to the reasons provided during this oral judgment, I have prepared a written judgment that forms part of my sentence. This written judgment will be attached to the Information and distributed to the parties.

B. Sentence Positions

[2] The Crown seeks a global sentence of 5 years jail comprised of 3.5 years for the loaded firearm, plus a consecutive 1.5 years in relation to six counts of breaching weapon prohibition orders. The Crown submits that additional shorter concurrent sentences on the remaining firearm and breach of probation convictions would be appropriate.

[3] The Defence seeks a global sentence range of between 2 and 2.5 years jail. The Defence does not contest the ancillary lifetime s.109 Prohibition Order and DNA orders. The parties also agree as it concerns the application of the principles in R. v. Kienapple 1974 14 (SCC), [1975] 1 S.C.R. 729. I order a conditional stay of count 1 – s.91(1) of the Code.

C. Sentence

[4] Section 719(3.3) of the Code requires a sentencing judge to specifically state on the record and the warrant of committal: (1) the amount of time spent in pretrial custody; (2) the term of imprisonment that would have been imposed before any credit for pretrial custody; (3) the amount of time credited; and (4) the sentence imposed: R. v. Marshall, 2021 ONCA 344.

[5] While the parties agree that the defendant is entitled to credit for pretrial custody, there is a dispute concerning the amount of pretrial custody used by the defendant in relation to a guilty plea and sentence on June 17, 2021.

[6] I find that the defendant has served 493 days of pre-sentence custody.

[7] I credit the defendant with 1.5 days for each day of pre-sentence custody arriving at a sentence credit of 739 days.

[8] On the date scheduled for sentence submissions and sentence, the Defence was granted an adjournment to acquire institutional records in support of “Duncan Credit”. No materials were filed with the Court by the deadline – June 20th, 2022. For the reasons set out in this judgment, I do not recognize any “Duncan Credit”.

[9] I take judicial notice of the COVID-19 pandemic, the impact of the pandemic on the conditions in custodial settings, and the potential impact on the defendant as he is serving his sentence. I credit the defendant with an additional 30 days of credit in recognition of these circumstances.

[10] The total credit to apply to the defendant’s sentence is 769 days.

[11] For the purpose of this oral judgment today I will summarize the bottom line sentence for the defendant.

[12] Count 5, the s.95(1) possession of a loaded prohibited or restricted firearm is the most serious offence for which the defendant has been found guilty.

[13] For reasons that I will explain in this written judgment, sentences for those who illegally possess loaded firearms must increase. I sentence the defendant to a four and one-half year sentence on count 5 expressed as 1,642 days jail. I credit the defendant with 739 days applied to count 5, leaving a sentence to serve of 903 days on count 5. The clerk of the court shall record the sentence in days on the Information and all administrative paperwork.

[14] I am sentencing the defendant in relation to six breaches of weapons prohibition orders. I sentence the defendant to 180 days jail on each breach. These sentences for breaching weapons prohibition orders are to be served consecutive to his sentence on count 5 – s.95(1) of the Code but concurrent on each weapons prohibition count and concurrent to all other counts on the Information.

[15] I am sentencing the defendant in relation to four breaches of probation orders. I sentence the defendant to 30 days jail on each breach. The sentences for breaching his probation orders are to be served consecutive to his sentence on count five – s.95(1) of the Code but concurrent on each breach of probation count and concurrent to all other counts.

[16] On count two – s.86 of the Code – I sentence the defendant to 90 days jail. This sentence is to run concurrent to the sentence on all other counts.

[17] On count three – s.92(1) of the Code – I sentence the defendant to 365 days jail. This sentence is to run concurrent to the sentence on all other counts.

[18] On count four – s.94(1)(a) of the Code – I sentence the defendant to 365 days jail. This sentence is to run concurrent to the sentence on all other counts.

[19] The bottom line is that the defendant will serve the following sentence going forward from today:

• 903 days on count 5, the s.95(1) of the Code loaded firearm conviction.

• An additional 180 days served consecutive to count 5 for the group of prohibition order breach convictions.

[20] All other sentences imposed will run concurrent to the conviction on count 5, s.95(1) of the Code. Given the complicated nature of concurrent and consecutive sentences, I have produced a chart for the clerk of the court and the parties attached to this judgment addressing the specific sentence applicable to each count. The chart forms part of my written judgment.

[21] I order the defendant to be subject to a s.109 prohibition order for life in relation to the s.95(1) conviction.

[22] I grant the Crown application for DNA samples as it concerns counts 3,4,5,6,7,8,9,10, and 11. Each of these convictions constitutes a generic secondary designated offence when prosecuted by indictment given the maximum sentence exceeds five years jail: (See definition of “secondary designated offence” subsection (a) in s.487.04 of the Code.)

[23] I order forfeiture of all items seized by the police and brought within the jurisdiction of the court through a report to a justice.

[24] The victim surcharge is waived as it would be a hardship for the defendant to pay it given the sentence imposed today.

II. Reasons for Sentence

A. Circumstances of the Offence

[25] I have provided a detailed analysis of my findings in my judgment at trial. In that judgment I comprehensively addressed the evidentiary record and why that record, as a whole, convinced me beyond a reasonable doubt that the defendant knowingly possessed a loaded firearm.

B. Background of the Defendant

[26] The PSR documents relevant background as it concerns the defendant. It details that he arrived in Canada from the island of Barbados as a convention refugee. He maintains a good relationship with a sister.

[27] The defendant has eight children – three in Barbados and five in Canada from different partners. The PSR reports that he speaks to his children occasionally. There is some information from a current partner. The impact of negative association information she provides must be tempered given the lack of specifics. Further, his current partner remains supportive notwithstanding criminal convictions relating to her. She finds that the defendant is a good and kind person with challenges provoked by the company he keeps. She will encourage the defendant to address counselling.

[28] The defendant’s employment experience in Barbados was impacted by physical and emotional abuse associated with his sexual orientation.

[29] The defendant has not engaged in robust employment since his arrival in Canada. At trial, the defendant boasted about wearing Louis Vuitton designer shoes – a product that most average persons in Toronto cannot afford to purchase. Yet, in the Pre-Sentence Report, the information provided by the defendant suggests limited part-time employment as a barber impacted by medical circumstances, and reliance on social assistance to support his lifestyle.

[30] The defendant has had difficulties associated with the abuse of hard drugs with the daily amounts detailed on page five of the Pre-Sentence Report.

[31] The defendant has not performed well on community supervision. He did not complete the PARS program in relation to domestic assault convictions and his reporting habits were not satisfactory. It is also clear that he committed criminal offences while on community supervision.

C. Aggravating and Mitigating Factors

[32] Section 718.2 of the Code recognizes that sentences should be increased or reduced having regard to relevant aggravating or mitigating factors relating to the offence or the offender.

1. Mitigating Factors

[33] There are no mitigating factors in this case.

a) Credit for Stringent Judicial Interim Release Conditions - Downes

[34] The defendant has not led a record in support of the impact of the bail conditions: R. v. Lewis, 2021 ONCA 597. The defendant did not lead evidence or explicitly seek credit for stringent release conditions pursuant to the principles outlined in R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321. Nevertheless, a sentencing judge must review the relevant factors and determine what credit (if any) is appropriate: R. v. Dodman, 2021 ONCA 543, at para. 10. It is acceptable to assign a particular “credit” or simply consider the circumstance in arriving at the overall sentence: R. v. C.C., 2021 ONCA 600, at para. 5.

[35] I have reviewed the Information before the court and there is no basis to find that any periods of release were accompanied by stringent bail conditions. I also observe that the defendant was convicted of breaching his release. I do not find anything to support a mitigation of sentence: Downes, at paras 26-33; R. v. Bullens, 2021 ONCA 421. I find that there is no evidentiary foundation for the exercise of discretion: R. v. Adamson, 2018 ONCA 678.

b) Addiction as a Mitigating Factor

[36] The most prominent aspect of the Pre-Sentence Report involves the information concerning the defendant’s abuse of alcohol and drugs: (See page 5.) Defence counsel submits that the defendant’s drug addiction is a mitigating circumstance that requires consideration of rehabilitative measures. While I accept that the defendant’s addictions are a background consideration on this sentencing, I do not agree with the Defence submission that rehabilitation should be a significant focus for several reasons.

[37] First, the predominant considerations on this sentencing must be denunciation and deterrence.

[38] Second, there is no evidence, nor is there a Defence submission, that this factor was linked to the crimes before the court. There is really little to no foundation for the suggestion that defendant’s drug-related issues were acting upon him at the time of these offences. There is no suggestion, for example, that he was trafficking in drugs to service an addiction and the firearm was a necessary “tool of the trade”. In fact, based on the hearsay information in 911 call to the police, it appears that the situation involved a domestic conflict and an allegation that the defendant was in possession of a firearm.

[39] Finally, the defendant has not even taken preliminary steps to address rehabilitation. While I recognize that options are limited while in-custody, it is clear that he has not sought access to treatment, or even made preliminary inquiries. At sentencing, no future plan of rehabilitation directed at drug addiction has been presented.

[40] I balance Defence counsel submissions about rehabilitation, with recognition that the defendant has not demonstrated any insight into his behaviour. As outlined above, he has not even taken the first step toward rehabilitation. In my view, this record suggests diminished rehabilitative prospects. While I have considered the defendant’s drug addiction as a background factor, it is not a significant consideration on sentence.

2. Aggravating Factors

a) Illegal Firearms and the Greater Toronto Region and Community

[41] The Crown Attorney provided thorough focussed submissions as it concerns the problem of illegal firearms in the Toronto area.

[42] Possession of firearms is a highly regulated activity for the protection of society As explained by Justice Moldaver in his dissenting judgment in R v. Nur, 2015 SCC 15, at paragraph 136:

136 Section 95 targets the simple possession of guns that are frequently used in gang-related and other criminal activity: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 54-57. Parliament has concentrated on simple possession for a reason: firearms - and particularly the firearms caught by s. 95 - are inherently dangerous. In R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199, the Court recognized that "[a] firearm is expressly designed to kill or wound" and that "[n]o matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence" (p. 211). As the Attorney General of Canada observes in his factum, this sober reality resonates all the more for "restricted firearms (principally handguns) and prohibited firearms (principally machine guns and sawed-off rifles or shotguns)": A.F. (Nur), at para. 64. These firearms are "the most strictly regulated because they are either easily concealable or generally do not serve a legitimate hunting or target shooting purpose" (ibid.). Outside of law enforcement, these guns are primarily found in the hands of criminals who use them to intimidate, wound, maim, and kill.

[43] The defendant possessed a prohibited/restricted firearm illegally.[^1]

[44] There is no legal purpose for possessing an illegal firearm.

[45] There is no legitimate use for illegal handguns.

[46] The only possible purpose for possessing an illegal handgun is to use it as a tool to commit other criminal acts.

[47] For decades, countless courts have emphasized the societal harm associated with the possession and use of illegal firearms:(A selection of these cases includes, Nur, (Moldaver, J in dissent) at paras. 131 and 136; R. v. Brown, 2010 ONCA 745 at para. 14; R. v. Danvers (2005), 2005 30044 (ON CA), 199 CCC (3d) 490 (Ont. C.A.) at paras. 77-78; R. v. Martin, 2022 ONSC 2354, at para. 6; R. v. Donison, 2022 ONSC 741, at paras. 32, 46-49; R. v. Chizanga and Meredith, 2020 ONSC 4647, at paras. 5-14,18-20; R. v. St. Clair, 2018 ONSC 7028, at para. 47; R. v. Kawal, 2018 ONSC 7531, at paras. 11-12; R. v. Thavakularatnam, 2018 ONSC 2380, at para. 21; R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) at para. 25;

[48] As a jurist living in the GTAA, I may take notice of the number of violent crimes, shootings, and murders associated with illegal firearms: R. v. Lacasse, 2015 SCC 64, at paras. 11,12, 89-90. I may also observe that on May 30th, 2022, the Federal Government tabled new gun control legislation seeking to limit access to handguns. The issue of illegal firearms is topical. It is being discussed many communities in Toronto. It is being discussed in the news media. It is being discussed on social media. It is being discussed in coffee shops and restaurants. The community has no tolerance for illegal handguns.

[49] While the mandatory minimum sentence is no longer available, at paragraph 82 in Nur, Justice McLaughlin suggested that a three year sentence may be appropriate for the vast majority of “true crime” possessions. I also recognize that sentence ranges are simply collected summaries of minimum and maximum sentences: Lacasse, at para. 57.

[50] In my view, seven years later, given the persistent problem with illegal firearms in the Toronto area, higher sentences should be the norm. In my view, people in Toronto and the surrounding locales have little tolerance for “true crime” possession of loaded illegal firearms and the attendant criminal offences that result. To use the local vernacular – people are “fed up” with gun crime. I am entitled to take judicial notice of this sentiment in my community.

b) True Crime Versus Regulatory Spectrum

[51] Criminal trials often do not address every unanswered question. In this case, there is no admissible evidence directed toward the rationale for the defendant’s possession of the loaded firearm. Again, I must carefully note that the 911 call was not substantively adduced into evidence at trial.

[52] On the record adduced, I may still conclude that the defendant’s possession was no mere regulatory infraction. This is not a circumstance where the defendant failed to comply with a regulation associated with his lawful possession of a firearm. It is clear that he was prohibited from possessing firearms on three occasions. Legal possession was unavailable. Based on the detailed findings reported in my trial judgment, I am satisfied that the defendant’s possession is consistent with the “true crime” spectrum of possession and is deserving of an exemplary sentence: Nur, at paras. 5, 82; R. v. Morris, 2021 ONCA 680, at para. 71[Morris]; R. v. Mohiadin, 2021 ONCA 122, at para. 12; R. v. Mansingh, 2017 ONCA 68, at paras. 24-25; R. v. Ellis, 2016 ONCA 598, at paras. 78-80; R. v. Marshall, 2015 ONCA 692, at paras. 47-49; R. v. Doucette, 2015 ONCA 583, at paras. 59-60; R. v. Dulfour, 2015 ONCA 426, at para. 8.

c) Criminal Record of the Defendant

[53] The defendant is not a youthful offender or a first-time offender. He is a 42 year old adult with a criminal record that includes prior convictions for violent offences.

[54] Contrary to the submission of Defence counsel I do not find the absence of prior firearm offences on the defendant’s record to be mitigating a mitigating factor Nor is it mitigating that the weapons prohibition orders were not as a result of other firearm offences for the same reason. These factors are properly characterized as the absence of additional aggravating factors. Circumstances that would aggravate a sentence.

[55] I find the prior assaultive conduct on his record to be an aggravating factor on sentence. In so doing, I disregard the hearsay information at trial suggesting the original call to the police involved a complaint by a female partner and the allegation that the defendant was in possession of a firearm. This evidence was not substantively admitted at trial. I simply acknowledge that the defendant has been previously convicted of offences involving violence. It is aggravating that three Courts have placed the defendant on weapon prohibition orders. It is also aggravating that the defendant was subject to multiple prohibition orders and multiple probation orders at the time of these offences.

[56] Finally, I am aware that the defendant pled guilty to breaching his judicial interim release order in relation to these offences. I give this circumstance little weight as an aggravating factor as I am not aware of the circumstances of the breach including the facts in support of the guilty plea.

3. Factors – Neither Mitigating nor Aggravating

a) Prior Record

[57] I have already addressed why the absence of prior firearm offences and the fact that the weapons prohibition orders did not relate to prior firearms offences is not a mitigating factor.

b) “Simple” Possession

[58] As I understand the Defence position, it is submitted that the fact that there is no evidence of the defendant engaging in other criminal activity is mitigating. The Defence position is “simple” possession of a firearm is mitigating. I disagree with the implied distinction between “simply” possessing an illegal firearm, and the explicit use of an illegal firearm to commit additional criminal offences.

[59] As indicated in this judgment, even “simple” possession of an illegal firearm provides support for an inference that the possessor is implicated in criminal activity. Where the risk associated with an illegally possessed firearm is actualized (e.g., by its utilization to shoot someone, commit murder, or robbery), I characterize these circumstances as providing foundation for a finding that there are additional aggravating factors. That they are absent from this sentencing is not mitigating.

c) Credit for Pre-Sentence Custody

[60] “Summers” credit is not a mitigating factor on sentence. It is simply the deduction of the amount of the sentence already served through pretrial incarceration: R. v. Marshal, 2021 ONCA 344, at paras. 51-52. I credit the defendant with 1.5 days credit for each day of his pretrial detention pursuant to s. 719(3.1) of the Code: R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80.

[61] I find that the defendant has served the following actual days of pretrial custody:

• July 13, 2020 to Dec. 7, 2020 = 148 days

• April 23, 2021 to May 4, 2021 = 12 days

• June 14, 2021 to May 18, 2022= 311 days

• May 18, 2022 to June 24 = 38 days

[62] The Crown submits that the defendant should not receive double credit for the sentence imposed on June 17, 2022.[^2] The Crown submits that 16 days should be subtracted from the total. The defendant does not agree that he used 16 days of PSC on a sentence received June 17, 2021. The parties were permitted to address this issue by way of written submissions and evidence. On June 21, 2022, the Crown filed copies of two Informations showing that the defendant received credit for 16 days of presentence credit in relation to the sentencing before Justice Chaffe. Having reviewed the copies, I am satisfied that the defendant used 16 days of pre-sentence credit.

[63] I find that the defendant served 471 pre-sentence days up to May 18, 2022 (date of submissions). I find that he has served an additional 38 days of pretrial custody up to the actual sentencing date of June 24th, 2022. I find that this totals 509 days of pretrial custody. I subtract 16 days from this total arriving at a pre-sentence credit of 493 days.

[64] I find that the defendant should receive credit of 739 days (493 x 1.5) in recognition of pretrial custody.

d) Credit for Harsh Custodial Conditions (“Duncan Credit”)

[65] It is important to distinguish between “Summer’s Credit” and “Duncan Credit”. On May 18, 2022, the date of sentencing submissions, the Defence had not subpoenaed records from the institution.[^3] I permitted the Defence to provide this material electronically and encouraged the Crown to concede it was admissible. I invited the parties to address the records by way of written submissions on the narrow point.

[66] The “Duncan Credit” should be considered in recognition of “particularly harsh pre-sentence incarceration conditions” based on the impact on the defendant: R. v. Duncan, 2016 ONCA 754, at para. 6. Where it is established that the lockdown conditions have had an "adverse effect" on the defendant, credit is available: R. v. Rajmoolie, 2020 ONCA 791, at paras. 14-16; R. v. Omoragbon, 2020 ONCA 336, at para. 32 [Omoragbon]; R. v. Henry, 2016 ONCA 873, at para. 9.

[67] With some foundation,[^4] I would be willing to reasonably infer that there was some direct impact on the defendant: R. v. Bristol, 2021 ONCA 599, at paras. 11-12. But there is simply no evidence of the conditions in the institution nor the adverse impact on the defendant: Omoragbon, at para. 32.

[68] I decline to provide any “Duncan Credit”.

e) Collateral Consequences

[69] A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47 [Suter].

[70] A collateral consequence is not necessarily aggravating or mitigating per s. 718.2(a) of the Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender: Suter, at para. 48. Collateral consequences are integrally connected to the goal of an individualized proportionate sentence as the focus concerns whether the impact of the sentence would have a more significant impact on the offender because of the offender’s circumstances: Suter, at para. 48

[71] In determining the weight of this factor there is no rigid formula or test involved but it is important not to overemphasize this factor and thereby contribute to a disproportionate sentence: Suter, at para. 56.

(1) Anti-Black Racism

[72] The defendant did not directly assert anti-black racism as a mitigating factor on sentence. I am aware that the defendant is a person-of-colour from the island of Barbados. While not pressed during submissions, I have nonetheless considered the guidance of the Ontario Court of Appeal in Morris and the comprehensive guidance on the issue of anti-black racism in sentencing.

[73] There was no evidence at sentencing (nor submissions) as to the specific role anti-black racism has had on the defendant’s background and development and how that circumstance should mitigate the sentence: Morris, at para. 97.

[74] The sentencing submissions suggest that the defendant has been negatively impacted by the government of Barbados and the societal views as it concerns his sexual orientation. There is limited evidence for the suggestion that Canadian society has discriminated against the defendant – Canada opened its doors to him as a refugee. Nevertheless, I accept that there does exist anti-black racism in our society and the possibility that this has impacted the defendant in some manner not articulated during submissions. I have simply factored this circumstance into my overall consideration of a proportionate sentence.

(2) Immigration Consequences

[75] Defence counsel submits that the defendant is a convention refugee. It is asserted that the defendant arrived from Barbados claiming some state-level consequence associated with his sexuality and the sexuality of his transgender partner. At sentencing, there was no evidence directed at the collateral consequence of a conviction on the defendant’s immigration status.

[76] While I accept Defence counsel’s bald assertion that there could be an impact on the defendant’s immigration status, I give this issue little weight in my overall considerations for several reasons.

[77] The first reason is the lack of evidence directed at the defendant’s peculiar circumstances.

[78] Second, I note that the defendant has already acquired a significant criminal record including several convictions for violence. There is no evidence concerning the impact of his prior criminal record on his immigration file, let alone the impact of this sentence today.

[79] Finally, while it is important that I consider the defendant’s immigration status, I can not allow the immigration issues to dominate this sentencing by imposing a disproportionate sentence. A sentencing court should not impose inadequate or artificial sentences for the purpose of circumventing Parliament’s will on matters of immigration: R. v. Pham, 2013 SCC 15, at para. 16; R. v. McKenzie, 2017 ONCA 128, at para. 34; R. v. B. (R.), 2013 ONCA 36, at paras. 23 – 31; R. v. Badwar, 2011 ONCA 266, at para. 45. It is also important to recognize that it is not the role of a sentencing court to work artificial results to avoid Parliament’s intent concerning persons who commit serious offences upon immigrating to Canada: (e.g., see R. v. Mohammed, 2016 ONCA 678).

(3) COVID -19

[80] I take judicial notice of the health pandemic and the impact on the defendant who will be serving a jail sentence: R. v. Morgan, 2020 ONCA 279. There is no mathematical formula. The appropriate credit is left to the discretion of the sentencing judge. I find that 30 days credit is sufficient to address these circumstances.

D. Purpose and Principles of Sentencing

[81] Section 718 of the Code states that the fundamental purpose of sentencing is to protect society, prevent crime, promote respect for the law, and maintain a just, peaceful, and safe society. In this case, it is important to denounce the unlawful conduct and the harm done to the community caused by the possession of illegal handguns. It is also important to deter the defendant specifically. There is no evidence of remorse or insight into his criminal conduct. It is necessary to separate the defendant from society and promote his sense of responsibility for his conduct.

[82] There are several other relevant principles to keep in mind.

[83] Section 718.2 of the Code mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Notwithstanding this guidance, I recognize that sentencing is highly individualized, and the Court must tailor sentences to the circumstances of the offence and the offender: Suter, at para. 46.

[84] Section 718.2(d) and (e) address the criminal law principle of restraint. The defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable and available sanctions, other than imprisonment, should be considered: R. v. S.K., 2021 ONCA 619, at paras. 12-13; R. v. Desir, 2021 ONCA 486, at para. 41; R. v. Borde, 2003 4187 (ON CA), [2003] O.J. No. 354(Q.L.)(C.A.).

[85] Finally, sections 718.1 and 718.2(c) of the Code provide that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[86] Given the number of counts and the use of consecutive sentences, the principle of totality is front of mind in this sentencing with the aim of achieving a proportionate sentence. I have assessed the totality of the sentence with the guidance of the Ontario Court of Appeal in R. v. Jewell, (1995) 1995 1897 (ON CA), 100 C.C.C. (3d) 270, and R. v. Ahmed, 2017 ONCA 76, at paras. 78-93. I have also kept in mind that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: R. v. Milani, 2021 ONCA 56, at para. 34.

[87] The gravamen of the conduct is the illegal possession of a loaded firearm. I have emphasized that count as the central consideration on this sentencing. I find a fit and proportionate sentence on that count to be 4.5 years.

[88] The secondary consideration in terms of seriousness is the sentence imposed for the breach of weapons prohibition orders. I have fixed a sentence of 180 days consecutive to the s.95 sentence, but concurrent as it concerns each prohibition conviction: R. v. McCue, 2012 ONCA 733, at para. 21-22; R. v. Chambers, 2013 ONCA 680, at paras. 20-25; R. v. Carrol, 2014 ONSC 2063, at para. 30. The rational for this approach was to balance the fact that the sentences should be served consecutively with the sentencing principles of totality and proportionality. The same principles were employed in relation to the sentencing on the multiple probation order breaches.

E. The Sentence

[89] Balancing all of the aims of sentence and the relevant factors, the primary sentencing principles in this case are denunciation, general deterrence, and specific deterrence: Nur, at paras. 6-10.

[90] Rehabilitation is also a consideration, but I have given it less weight given the defendant’s age, his criminal antecedents, and the fact that the defendant has taken no steps while in-custody to address the rehabilitation that Defence counsel submits should be the Court’s central focus.

[91] Sentencing is an individualized process. Every defendant is owed a customized sentence. The challenge for a sentencing judge is to impose a fit and proportionate sentence having properly balanced the relevant factors: R. v. M. (C.A.), 1996 230 (SCC), [1996] S.C.J. No 28, at para. 90.

[92] For the reasons outlined in this judgment, I find that a sentence of 4.5 years jail on the s.95(1) count is a fit and proportionate sentence. On June 17th, 2022, Counsel were advised that it was possible that the sentence would exceed the Crown submission. Counsel were provided with an opportunity to provide submissions: R. v. Blake-Samuels, 2021 ONCA 77. The Crown provided no further submissions. Defence counsel submitted that where experienced counsel provide sentence within an acceptable range the court should stay within the range unless it is contrary to the public interest. The overall sentence being imposed does not exceed the Crown position. I found that the sentence on the loaded firearm should be increased. I also imposed a much more modest sentence on the weapons prohibition convictions than that proposed by the Crown.

[93] A criminal court should consider a ladder of escalating criminal sanctions given the sentencing principles outlined in the Code and caselaw. A sentence involving a conditional discharge, absolute discharge, fine, or suspended sentence would not properly address the relevant sentencing principles. A custodial sentence must be imposed.

[94] Defence counsel did not request consideration of a conditional sentence.[^5] Pragmatically, experienced Defence counsel recognized that a conditional sentence would be totality inappropriate. Having regard to the circumstances of the offence I have outlined in this judgment, the jail sentence must exceed two years. Imposing a conditional sentence of jail would be manifestly inconsistent with the fundamental purposes and principles of sentencing.

[95] These are the supplemental written reasons for imposing the sentence in this case.

Released: June 24th, 2022

Signed: “Justice M.S.V. Felix”

III. Appendix A – Sentencing Chart – R v. Rudder

Count	Offence	Jail Sentence	Ancillary Orders
1	s.91(1)	Conditional Stay
2	s.86	90 days jail concurrent to count 5
3	s.92(1)	365 days jail concurrent to count 5	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
4	s.94(1)(a)	365 days jail concurrent to count 5	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
5	s.95(1) Possession of a Loaded Restricted / Prohibited Firearm	1,642 days jail Minus PSC 493 days x 1.5 = 739 days Minus 30 days Covid-19 credit Leaving a sentence to serve of 903 days	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more 109 Order for Life
6	s.117.01 – Firearm	180 days jail consecutive to count 5 but concurrent with counts 7,8,9,10,11.	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
7	s.117.01 – Ammunition	180 days jail consecutive to count 5 but concurrent with counts 6,8,9,10,11, 14,15,16,17	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
8	s.117.01 – Firearm	180 days jail consecutive to count 5 but concurrent with counts 6,7,9,10,11, 14,15,16,17	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
9	117.01 – Ammunition	180 days jail consecutive to count 5 but concurrent with counts 6,7,8,10,11, 14,15,16,17	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
10	s.117.01 – Firearm	180 days jail consecutive to count 5 but concurrent with counts 6,7,8,9,11, 14,15,16,17	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
11	117.01 – Ammunition	180 days jail consecutive to count 5 but concurrent with counts 6,7,8,9,10, 14,15,16,17	DNA – Generic Secondary Designated offence prosecuted by Indictment with a maximum penalty of 5 years or more
14	733.1	30 days jail consecutive to Count 5 but concurrent to counts 6,7,8,9,10,11, 15,16,17
15	733.1	30 days jail consecutive to Count 5 but concurrent to counts 6,7,8,9,10,11, 14,16,17
16	733.1	30 days jail consecutive to Count 5 but concurrent to counts 6,7,8,9,10,11, 14,15,17
17	733.1	30 days jail consecutive to Count 5 but concurrent to counts 6,7,8,9,10,11, 14,15,16

[^1]: The fact that it was loaded is not an aggravating factor – it is an element of the offence: R v. Bagheri, 2022 ONCA 357.

[^2]: This plea and sentence was addressed by another Judge. Defence counsel did not represent the defendant on the plea and was unable to attest to the circumstances as an officer-of-the court.

[^3]: Defence counsel explained the significant medical circumstances involving his office including his paralegal staff member.

[^4]: For example, a document totalling any period of lockdown.

[^5]: Assuming a conditional sentence was available.