ONTARIO COURT OF JUSTICE

CITATION: R. v. McLarty-Mathieu, 2022 ONCJ 498

DATE: 2022 11 02

COURT FILE No.: 2811-998-19-37869

BETWEEN:

HIS MAJESTY THE KING

— AND —

GARNETT McLARTY-MATHIEU

Before Justice B. Green

Heard on July 6^th^ and October 22^nd^, 2022

Reasons for Judgment released on November 2^nd^, 2022

Mr. M. Hill....................................................................... counsel for the Crown

Mr. N. Sheiban....................... counsel for the defendant Mr. McLarty-Mathieu

Green J.:

A. Introduction

[1] Mr. McLarty-Mathieu was arrested for a number of charges and released on a house arrest bail in October of 2019. He is a young man who has a stable job but, like many working-class individuals, he could not afford to pay for counsel. Despite his limited income, he was denied Legal Aid assistance. As a result, he struggled through the criminal justice system for a significant period as a self-represented individual. The pandemic caused further delays in his case moving forward.

[2] Although it was always his intention to plead guilty, he was told by the crown that they were seeking a penitentiary sentence of three years or more. He was frightened by that prospect, so he set the matter for a self-represented trial. Eventually, after saving as much money as he could, he was able to hire a lawyer.[^1] Shortly after retaining counsel, he entered a plea of guilty.

[3] Mr. McLarty-Mathieu plead guilty to three counts that, on October 14^th^, 2019, he:

Possessed a loaded restricted firearm contrary to subsection 95(1) of the Criminal Code

Altered the serial number on the firearm contrary to subsection 108(1)(b) of the Criminal Code

Operated a conveyance with over 80 mgs of alcohol in 100 ml of his blood contrary to subsection 320.14(1)(b) of the Criminal Code

[4] During the sentencing hearing the crown advocated that, considering the seriousness of these crimes, the only appropriate sentence that will address the predominant sentencing principles is a penitentiary sentence of three years. The crown conceded that, in light of Mr. McLarty-Mathieu’s lack of record and his compliance with a house arrest bail terms for more than three years, specific deterrence is not a significant concern. Nevertheless, the loaded handgun that he possessed was designed as a killing machine and its possession is antithetical to the norms and values of Canadians. A strong message must be sent to deter like-minded individuals from carrying a loaded firearm by meting out a significant punishment. Moreover, Mr. McLarty-Mathieu posed a substantial danger to the community by possessing this gun, in a car, while considerably impaired by alcohol.

[5] In contrast, counsel emphasized that the range of sentences of incarceration for gun offences has broadened in recent years. The focus in sentencing decisions has shifted from concentrating primarily on the circumstances of these serious offences to balancing additional, potentially mitigating considerations as to why and in what circumstances an offender possessed a gun. Counsel submitted that a sentence of two years less a day is consistent with several more recent decisions and, as a result, a conditional sentence is statutorily available. Counsel urged that a conditional sentence would achieve the sentencing goals of denunciation and deterrence while reinforcing all the positive steps that Mr. McLarty-Mathieu has taken towards rehabilitation and his potential to continue to be a positively contributing member of society.

[6] It is important to carefully review the circumstances of the offence and the unique circumstances of this offender, including some social context considerations, the applicable sentencing principles, and any similar precedents with respect to the applicable range of sentencing to arrive at a balanced and fair sentence.

B. Facts:

i. The offences:

[7] The circumstances of the offence were set out in an agreed statement of facts that was filed as exhibit:

On October 14^th^, 2019, Mr. Garnett McLarty-Mathieu voluntarily consumed alcohol to the point when, at all material times, his ability to operate a motor vehicle was impaired by alcohol. Further, at all material times Mr. McLarty-Mathieu did not possess a licence, authorization or registration certificate to lawfully possess any firearm.

On that day, at approximately 12:05 a.m., Mr. McLarty-Mathieu drove his motor vehicle on Lakeridge Road South in Whitby. He was the only occupant. That stretch of roadway had no artificial lighting and was dark and somewhat secluded. The road was narrow and there were no painted markings on it. The road was dry. Mr. McLarty-Mathieu attempted to turn around on the road. In doing so, he accidentally backed into the ditch. He could not extricate himself from the ditch.

At approximately 12:15 a.m., a motor vehicle in which a woman was a passenger approached Mr. McLarty-Mathieu’s stuck vehicle and stopped. The woman spoke to Mr. McLarty-Mathieu. He was still in the driver’s seat of his vehicle. Mr. McLarty-Mathieu asked for help in getting his vehicle out of the ditch. The woman thought that Mr. McLarty-Mathieu was showing signs of having consumed alcohol, and so she called the police.

Durham Regional Police officers were, as a result, dispatched to attend the area at 12:24 a.m. The officers arrived on scene at 12:26 a.m. Cst. Sheppard approached the vehicle stuck in the ditch. He observed Mr. McLarty-Mathieu exit the vehicle from the driver’s seat.

Cst. Sheppard spoke with Mr. McLarty-Mathieu. The officer noted physical indicia of alcoholic impairment on the part of Mr. McLarty-Mathieu.

At approximately 12:29 a.m., Cst. Sheppard formed the opinion that Mr. McLarty-Mathieu’s ability to operate a motor vehicle was impaired by alcohol. The officer arrested him and read to him the rights to counsel and approved instrument demand.

Cst. Roffee searched the motor vehicle, both as an incident to Mr. McLarty-Mathieu’s arrest and as an inventory search, as it would be necessary under the circumstances to impound the vehicle. Cst. Roffee found a handgun in a green unzipped satchel on the vehicle floor in front of the front passenger seat. The handgun was loaded with a magazine containing 10 rounds of .22 calibre ammunition. There was no round in the chamber. The serial number had been obliterated. The handgun belonged to Mr. McLarty-Mathieu. He knew that the serial number had been altered. He knew that the firearm was loaded, and that it was in his motor vehicle.

Mr. McLarty-Mathieu was taken to the Whitby police station where samples of his breath were analyzed by means of an approved instrument. Two samples of Mr. McLarty-Mathieu’s breath were so analyzed. The first such analysis took place at 2:03 a.m., and the second at 2:26 a.m. The truncated results were 220 and 210, respectively, mg of alcohol in 100 ml of blood.

Cst. Sheppard described Mr. McLarty-Mathieu as being polite and co-operative throughout.

The seized handgun was analyzed by DC Parker on January 20, 2020. He test-fired the handgun and found it to be in proper working order. He determined that the handgun was a restricted handgun. This item fired as designed and intended.

[8] During the sentencing hearing, a detailed presentence report was filed as an exhibit. The report provided additional information about the circumstances leading up to the driving offence and Mr. McLarty-Mathieu’s explanation for how he got the gun and why he possessed it. These are the most relevant excerpts:

Pages 3 to 4: Regarding his peer associations, he advised that although he has positive relationships and these friends have been his close associates since high school, he also associated with individuals who were involved in a criminal lifestyle which is how he was able to purchase the weapon. He informed that, since his arrest, he has disassociated himself from these individuals.

Pages 4 to 5: He indicated that during this period, he would drink five days a week and, in addition to drinking beer, he would also consume hard liquor. He is unsure why his usage increased but shared that during that period in his life “he lost his way” and he partied a lot. He related that under the influence of liquor he experienced blackout episodes. This occurred often and he shared that on the day of his arrest, he was coming from a house party where he had consumed a lot of alcohol. In the events leading up to his arrest, he believes that he may have suffered a black out episode after leaving the party because he has no recollection of how he arrived at the intersection.

Page 5: When asked about the reason for carrying a firearm, the subject stated that he had a negative experience in the past that made him feel that he needed a firearm to protect himself. He related that in 2017, he was robbed at knife point while coming home from a club. His phone was taken from him, and he felt very helpless and humiliated by the incident. During that period, he heard of numerous robberies and people getting shot and killed. He then made the decision to arm himself for the sole purpose of protecting himself when he attended a night party or a club. Reportedly the gun gave him some sense of security. He informed that he “had no intention of using it” and he “never fired it” and it was only “to scare people” in case he found himself in a situation where his life was at risk.

Page 7: The subject denied being a member of a gang or having gang affiliations. This writer contacted Detective Constable Joshua Brown #3645, Durham Regional Police Service, Intelligence Branch - Guns and Gangs Enforcement Unit. D/C Brown reported that the subject has no known affiliations to any gangs in the Durham Region. Furthermore, several compliance checks were conducted, and they noted that he was polite and cooperative with officers.

This writer also contacted the Toronto Anti Guns and Gangs Probation and Parole Unit, who advised that there is no information available to suggest that Mr. McLarty-Mathieu has current gang affiliations.

This writer contacted the arresting officer, Detective Constable Jason Sheppard #3683, Durham Regional Police Service. He informed that during his arrest the subject was quite intoxicated and had some issues with following directions; however, he was cooperative with the investigating officers.

[9] Mr. McLarty-Mathieu was a relatively youthful black man who chose to arm himself with a loaded handgun to protect himself. His choice to arm himself with a gun, while not excusable, was informed by several factors in his life at the time that provide important context which may mitigate his moral culpability for the offences. Before reviewing these circumstances, I would like to address Mr. McLarty-Mathieu’s inability to obtain an enhanced presentence report to provide essential social context evidence to explain his background prior to these offences.

ii. Comments about an enhanced pre-sentence report:

[10] In both leading Court of Appeal decisions, in different provinces, about the impact and import of social context evidence for black offenders in sentencing proceedings, both of the Courts of Appeal had the benefit of enhanced presentence reports prepared by specially trained individuals that detailed some social context evidence, the unique experiences of the defendants, as well as reports detailing the experiences of racialized people in the criminal justice system: R. v. Anderson, 2021 NSCA 62 and R. v. Morris, 2021 ONCA 680.

[11] Unfortunately, it takes months to prepare these reports in Ontario which significantly prolongs the period that a defendant spends in pretrial custody or on stringent release terms while awaiting sentence. More importantly, these reports are cost prohibitive and unattainable for individuals who have economic disadvantages. If a defendant qualifies for Legal Aid assistance, Legal Aid may provide approval for the funding to obtain the report. For vulnerable individuals who work and earn an income marginally above the poverty line, like Mr. McLarty-Mathieu, they are not eligible for Legal Aid, and they cannot afford these reports because they cost thousands of dollars.

[12] Mr. McLarty-Mathieu explained that:

My lawyer advised me to get an enhanced presentence report. I asked family members to help raise the funds for it – but even with all those efforts we fell short of the amount which is $4000 plus HST. Regardless, I was advised by my lawyer that I would not have anyone from the organization – the sentencing and parole project – be assigned to me until the new year or over 6 months from when I plead guilty. I understand this report would have looked into my history the same way the presentence report would have; however, it would be much more in depth and focus on my cultural experiences in Canada. The amount of time to get the report and money required was daunting to me.[^2]

[13] In the absence of an enhanced presentence report, counsel submitted that I should take judicial notice of the factors outlined in a report authored by various experts in a study of “Criminal Justice and the Experience of Black Canadians” that has been filed as an exhibit in other sentencings. The Ontario Court of Appeal relied on this report in the seminal decision on this issue: R. v. Morris, 2021 ONCA 680.

[14] As gatekeepers of the criminal justice system, judges must be acutely aware that overreliance on academic achievement or employment success as mitigating factors can be unintentionally discriminatory. Of course, stereotypical assumptions about a black person’s background should never influence a sentencing decision.

[15] In the collaborative expert’s report filed as Appendix A in the Morris decision, the Court had the benefit of extensive statistical analysis about the socio-economic impact of systemic racism on black Canadians commencing as children right through to adulthood. Black children are far more likely to be apprehended by child welfare agencies negatively impacting familial bonds. Black students are statistically less likely to succeed in school. Young black Canadians are far less likely to secure stable employment and when they do, they receive disproportionately lower pay. Incarceration rates are disproportionality higher among black offenders.

[16] All these factors contribute to an ongoing cycle of social and an economic hardship. Nevertheless, financially disadvantaged defendants are expected to come up with thousands of dollars to secure the benefit of these essential individualized reports about their backgrounds and experiences with systemic racism to explain how these factors may have contributed to why they came into conflict with the law.

[17] In the Morris decision, supra at para. 91, the Court of Appeal emphasized how invaluable it is for sentencing judges to have the benefit of these reports to guide our decision making:

There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender's community and the impact of that racism on the offender's circumstances and life choices is part of the offender's background and circumstances. The evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society. [emphasis mine]

[18] The Court of Appeal also observed that there are no similarly informative resources for this “essential” information (at para. 128):

Counsel's efforts alone will of course not be enough. The resources needed by counsel to properly put forward this kind of information must be available, as must the resources needed to effectively implement a conditional sentence tailored to the needs of the offender like the sentence in Anderson (NSCA). The proposed federal legislation, combined with commitments made in the government's 2020 economic statement, suggest the previous government intended to make the necessary resources available. Hopefully, that commitment will be renewed and acted upon in the immediate future.

[19] The information in these reports may provide crucial background information that could potentially mitigate an offender’s moral culpability thereby attenuating the length of a sentence of incarceration and potentially ameliorating the overrepresentation of black individuals in custody. Unfortunately, despite commitments to ensuring these reports are readily available, they are cost prohibitive for many defendants and necessitate lengthy delays.

[20] It is counterintuitive and fundamentally unfair that critically important reports intended to foster a better understanding of the impact of systemic racism and the experiences of racialized minorities, particularly black offenders from difficult back­grounds, are not available resources for many vulnerable individuals who face socio-economic hardships and life challenges.

[21] This situation is a catch-22. The reports are intended to redress historical inequities in sentencing proceedings, but they are not reasonably attainable by black individuals with low incomes who are statistically far more likely to be incarcerated. Regrettably, the cost prohibitive nature of the reports contributes to an understandable, ongoing, negative perception of many racialized individuals that justice is more readily available for those who can afford to access to it.

[22] Until these reports are financially attainable, preferably free, it is incumbent on counsel to provide a sentencing court with any evidence that may attenuate an offender’s moral culpability for an offence. In R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 at para. 83, the Supreme Court of Canada provided some guidance with respect to various means to introduce social context evidence:

Evidence about race relations that may inform whether there has been a detention under s. 9, like all social context evidence, can be proved in legal proceedings by direct evidence, admissions, or by the taking of judicial notice. The realities of Charter litigation are that social context evidence is often of fundamental importance, but may be difficult to prove through testimony or exhibits. To be sure, social context evidence is a type of "social fact" evidence, which has been defined as "social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case". [emphasis mine]

[23] In appropriate cases, counsel can present affidavits or call viva voce evidence from the offender, family members, community members, friends, professionals, educators, probation officers or anyone who is well positioned to provide social context evidence that may inform or mitigate the choices made by that individual. In addition, counsel can file Appendix A from the Morris decision. The Court of Appeal observed in Morris, supra, at paras. 42 and 43 that:

Even though much of the report could have been the subject of judicial notice, the admission of the report as a whole had value for sentencing purposes. The report gave the trial judge the benefit of a scholarly, comprehensive, and compelling description of the widespread and pernicious effect of anti-Black racism. As the trial judge observed, it helped him understand how Mr. Morris ended up where he did.

The report bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders. The report is easily accessible as the trial judge helpfully attached a copy as an appendix to his reasons for sentence.

[24] In this case, counsel filed Appendix A from the Morris decision as an exhibit. I also had the benefit of an exceptionally well-prepared, informative presentence report. The probation officer interviewed various individuals, including the police, to present a fulsome and fair picture of Mr. McLarty-Mathieu’s background. In addition, counsel filed an affidavit from his client and called his mother as a witness during the sentencing. He also filed letters from Mr. McLarty-Mathieu’s pastor and his employer.

iii. The circumstances of the offender:

[25] Mr. McLarty-Mathieu’s mother was 16 years old when she became pregnant with him. His father was 19 years old. Considering their young age, Mr. McLarty-Mathieu was sent to live with his grandmother during the week and his parents on the weekends until he was 6 years old. Eventually, Ms. Mathieu moved to a more suitable home and brought her son with her. As a result, he had to change schools. During this time, his mother had two more children with his father.

[26] Mr. McLarty-Mathieu’s father did not play a significant role in his son’s life when he was a child even though he lived with them. His father was immature and spent a lot of time out of the home, partying and cheating on his partner. He had children with other women. He abused alcohol. He did not set a good example for his young son.

[27] Ms. Mathieu eventually decided to leave her partner. She moved away with her three children. Mr. McLarty-Mathieu changed schools again. They lived in cooperative housing while Ms. Mathieu put herself through school to become a nurse. The children attended their father’s family home on the weekends, but they rarely spent time with him. Instead, their paternal grandmother cared for them.

[28] When Ms. Mathieu attained her nursing degree, she moved with her children to Ajax. Mr. McLarty-Mathieu was transferred to a fourth school. Throughout his life, he was actively involved in helping his single mom to care for his younger siblings.

[29] As a child, Mr. McLarty-Mathieu struggled with some residential instability as well as changing schools and friend groups. In more than one school, he was the victim of discrimination. He was called racial epithets and he was bullied for his weight. He shared with the probation officer that he was suspended in elementary school on a number of occasions for fighting and being disruptive in class. He could not recall any personal difficulties during that time, except that his father was not present in his life, and he feels that he may not have had any male mentors.

[30] Ms. Mathieu moved her children to Ajax because she felt it was a more racially diverse community. She was conscious and sensitive to the realties faced by black people in the community. As a result, she did her best to prepare her children for the discriminatory practice and inevitability of racially targeted policing. She taught her children how to react during these negative interactions with police. They were instructed that, even if they had done nothing wrong, they should not argue with the police, always be polite, conciliatory, and cooperative.

[31] Mr. McLarty-Mathieu experienced a few negative interactions with the police growing up. Ms. Mathieu was driving home with her children and her son had to go to the bathroom. She was pulled over by the police and her son really had to pee. She thought that it was okay for him, a ten or eleven year-old child, to leave the car to go to the washroom. As soon as he exited the car, the police shouted at him to get back in the vehicle. He was petrified during this interaction with the police.

[32] On another occasion, around the same age, her son was hanging out with friends sitting on a box across the street from their family home. There was a shopping cart nearby on the road. A police car pulled up and an officer confronted them about the cart. They were told that, if they didn’t move it, they would be arrested. Mr. McLarty-Mathieu was understandably upset and scared. When he told his mother, she reinforced with him that any time the police approach him, he should cooperate and do what he is asked regardless of whether he did anything wrong.

[33] When Mr. McLarty-Mathieu was a teenager, Ms. Mathieu distinctly remembered an occasion when the police were searching for suspects in the area. The police helicopter was flying overhead their neighbourhood. Her son returned home and told her that he was on his way home from a party with his friends when they were surrounded by the police. The officers claimed that he and his friends “matched the description” of the suspects who they were seeking. Considering they were all black and were not involved in any crimes, they believed that they were only stopped because they were black.

[34] All these experiences, in addition to highly publicized racially motivated incidents of police brutality, fostered in Mr. McLarty-Mathieu feelings of fear, a lack of trust and lack of confidence in the police protecting him as well as a building resentment. Sadly, he is not alone. In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692 at para. 93, the Supreme Court of Canada reviewed various human rights studies and observed that:

The study revealed that "black people are much more likely to have force used against them by the TPS that results in serious injury or death" and between 2013 and 2017, a Black person in Toronto was nearly 20 times more likely than a White person to be involved in a police shooting that resulted in civilian death (p. 19). The OHRC report reveals recurring themes: a lack of legal basis for police stopping, questioning or detaining Black people in the first place; inappropriate or unjustified searches during encounters; and unnecessary charges or arrests (pp. 21, 26 and 37). The report reveals that many had experiences that have "contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment". [emphasis mine]

[35] Mr. McLarty-Mathieu also experienced incidents in his community that lead him to fear for his personal safety. One night, he was robbed at knife point and deprived of his cell phone and money. He did not contact the police for two reasons. He did not trust the police and he was afraid of the potential for negative repercussions for him and his family in his community. Ms. Mathieu described what happened to a family in their neighbourhood after their son was believed to have provided the police with information. Shortly thereafter, the family members were the victims of a home invasion, and their son was brutally beaten. They had to move away from their neighbourhood for their own safety.

[36] Despite some struggles throughout his youth, Mr. McLarty-Mathieu had the benefit of a large, loving family. He graduated from high school and initially attended college. He did not do well in college. He left school and worked at a Popeyes earning a stable income. He eventually secured a job in a business that his father’s family is actively involved in, at a racetrack, caring for horses. He works hard and he helps his mother out financially by paying rent at home.

[37] Ms. Mathieu candidly admitted that her son began to lose his way as he got older and began abusing alcohol. Mr. McLarty-Mathieu told the probation officer that he first consumed alcohol around age 17 due to peer pressure. He began to consume alcohol excessively in his early twenties and up to the time of his arrest at the age of 27.

[38] Alcohol abuse had a very negative impact on Mr. McLarty-Mathieu’s life in his twenties. He attended work most days with a hangover or under the influence of alcohol which caused him to be unproductive on the job. He believes that this led to him being passed over for advancement. Despite having been employed at the racetrack for many years, he was only made full time four years ago. Mr. McLarty-Mathieu candidly admitted that alcohol abuse also negatively affected his relationships and made him easily irritated.

[39] It was during this time when he was abusing alcohol and partying that Mr. McLarty-Mathieu began associating with negative peer groups. He bought a gun from a friend and began carrying it for his own protection. He was not a member of a gang. He had no intention to use it for an illicit purpose to commit a crime. Nevertheless, since he was arrested, Mr. McLarty-Mathieu realizes how dangerous it was for him to carry a loaded gun, especially while impaired by alcohol.

[40] While he was on bail, Mr. McLarty-Mathieu experienced a personal loss that impressed on him the tragedies that can happen when individuals choose to carry a loaded firearm. There was a shooting in their neighbourhood. Both Ms. Mathieu and her son heard the shots ring out and a young life was lost. Mr. McLarty-Mathieu was deeply impacted by this shooting. The victim was his friend between 2017 and 2019. He died while socializing with other friends in his driveway. Mr. McLarty-Mathieu related that “it made me sick to my stomach and afraid for who I was pretending to be. I can’t describe it any other way. Getting arrested likely saved my life.” He knows that he was on a path that could have ended the same way as his friend, worse yet, he could have been the person who shot someone.

[41] In addition to the friend who died after being shot, another one of his best friends died in a horrible car crash not far from his home. Mr. McLarty-Mathieu has realized that, if he had not been arrested, he would have been in that car with his friends that day. He explained his relationship with this person as “we were inseparable prior to me being arrested. This friend was one who kept in close contact with me and always made sure I was doing ok. Their death will linger for the rest of my life”.

[42] Mr. McLarty-Mathieu is now 30 years old. He is still employed at the racetrack working with horses. His employer filed a letter of support speaking to the positive changes that he has noticed over the past three years. He described Mr. McLarty-Mathieu’s arrest as a “bitter-sweet tragedy” because it has had such a beneficial impact on his sobriety and work ethic. He is a valued employee and continues to work hard with the horses.

[43] While on bail, Mr. McLarty-Mathieu reconnected with his church. He has been receiving supportive counselling from his pastor who witnessed how his values, thinking and behavior have all changed for the better. His pastor provided a letter on his behalf confirming that he is a valued member of his church, he actively participates in counseling and volunteer work.

[44] Mr. McLarty-Mathieu is aware that he still struggles with some repressed anger towards any form of authority, both at home and at work. He shared that he “used to flip out regularly”. He is unsure of the root cause of his anger and believes that it may have contributed to some of his negative choices. He stated that he is ready and willing to seek help for this problem. Despite his negative perceptions of the police, he expressed appreciation for the way the police treated him the night that he was arrested even though he committed serious crimes. He related that they were professional and polite throughout their interactions with him.

[45] Mr. McLarty-Mathieu is very remorseful. He demonstrated this remorse by entering pleas of guilty and accepting full responsibility for the choices he made and hurting his family. He explained that:

Having the handgun in my possession was the worst decision I have ever made. Every day I wish I never fell into the trap but I have no one to blame but myself. I have no excuse for it – but I can promise this court I will never be in front of it again. I have addressed my drinking because I have not been to a party or a bar or a club since October of 2019. I have no reason to drink. I have cut out a lot of the bad influencing friends I had. I want to be clear; I do not blame any of them for my decision but I also recognize now they were not helping lift me up.

[46] Ms. Mathieu described how this whole process has “humbled” her son. After his arrest, he laid at the foot of her bed every night for two weeks and cried. His pastor described how many times Mr. McLarty-Mathieu has also cried while talking to him. Mr. McLarty-Mathieu is intensely aware of the seriousness of his crimes and the potential danger that he posed to the community especially after his friend was shot to death.

[47] Even though he admitted that it was tempting at times, Mr. McLarty-Mathieu has not breached a house arrest bail for more than three years. The probation officer confirmed with the police that Mr. McLarty-Mathieu was the subject of multiple compliance checks while he was on bail. His mother estimated that the police came to her home around thirty times over the past three years. Her son never breached his bail. Mr. McLarty-Mathieu is grateful that his arrest changed the course of his life and gave him a much-needed opportunity to reflect on his choices. He is sober and excelling at work. He is a better son, brother, employee, friend and person. While he appreciated that he was released on bail, he expressed that abiding by very strict terms of release has been punitive.

[48] In some respects, Mr. McLarty-Mathieu’s life came to a standstill after his arrest. He was 27 years old and planning on moving out on his own, but he was forced to completely give up his independence. His girlfriend of seven years broke up with him because she could not handle the restrictions on his liberty and his uncertain future. He did not renew his driver’s licence and has not driven since the night of his arrest.

[49] He feels like he lost a significant part of his twenties. His mother was understandably and wisely very strict with enforcing the house arrest even though he could go out in her direct company or with his sister or his grandmother. Mr. McLarty-Mathieu misses the simple pleasures of life before his arrest like the ability to go out and have a coffee or go for a walk by himself. He will never take his liberty for granted again. He assured me that he will never offend again, and he hopes to continue working and to make his family proud of him.

C. Legal Analysis:

i. Guiding principles of sentencing:

[50] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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:

[1] to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

[2] to deter the offender and other persons from committing offences;

[3] to separate offenders from society, where necessary;

[4] to assist in rehabilitating offenders;

[5] to provide reparations for harm done to victims or to the community; and

[6] to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[51] Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.

[52] Undoubtedly, in cases involving possession of loaded firearms, especially while intoxicated and driving a car, general deterrence and denunciation are the predominant sentencing principles.

[53] In a very similar case, R. v. Beharry, 2022 ONSC 4370 at paras.19 and 20, Justice Schreck observed:

The gravity of the offences committed by Mr. Beharry is significant. Like all handguns, the firearm possessed by Mr. Beharry is manufactured for the sole purpose of killing or seriously injuring human beings. It is not incidentally dangerous. Rather, its dangerousness is its very purpose. It is an instrument of death. As explained in Morris, at para. 68:

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. ... 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.

[54] While these are serious crimes, a sentence must be proportionate and responsive to the aggravating circumstances of the offence and the mitigating circumstances of the offender as opposed to unduly focusing on one or the other. As the Supreme Court explained in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 at para. 37:

The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system....

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[55] Sentencing requires a careful balancing of competing considerations to achieve a just and proportionate disposition. The Supreme Court of Canada reiterated in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) that:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[56] A court must balance the seriousness of the offence with the mitigating circumstances of the offender. Some factors may tip the scales one way or the other when deciding whether to impose a custodial sentence. The youthfulness of an offender, whether they have a previous record and whether less restrictive sanctions could achieve all the sentencing goals are particularly important considerations.

ii. The principle of restraint:

[57] Section 718.2 of the Criminal Code codified the principle of restraint that:

(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.

[58] Recently, the Court of Appeal in R. v. Francis, 2022 ONCA 729 at para. 80 overturned a sentence and reduced it by two years because the sentencing judge had not sufficiently considered the appellant’s age and lack of record. Justice Tulloch reiterated that:

This court has repeatedly emphasized the critical role that the principle of restraint plays when sentencing a youthful, first-time offender: see e.g., R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Disher, 2020 ONCA 710at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31. While the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence: Borde, at para. 36. Where an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed: Borde, at para. 36; Desir, at para. 31; Disher, at para. 59.

[59] Mr. McLarty-Mathieu was relatively youthful at the time of these offences. He was 27 years old, and he had no criminal record. He had never been arrested before that night. These mitigating factors should weigh very heavily in terms of tipping the scales towards a more lenient sentence. Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. The crown emphasized however, that gun crimes are so serious that a custodial sentence is required even though Mr. McLarty-Mathieu is a first-time offender.

[60] While I agree with the crown that these offences are extremely serious and merit a denunciatory and deterrent sentence, incarceration is not the only means to achieve these sentencing goals. In R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 at para. 110, the Ontario Court of Appeal emphasized that a conditional sentence:

…serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

[61] All available sanctions must be considered when determining what is reasonable in the unique circumstances of these offences and this offender. While a conditional sentence would be the least restrictive penalty in these circumstances, I must consider whether it appropriately balances competing sentencing considerations by reviewing any similar sentencing precedents and whether it is a statutorily available disposition.

iii. The principle of parity:

[62] Subsection 718.2(a) of the Criminal Code codified the long-standing principle of parity that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[63] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find identical facts. Even when there are comparable cases, it cannot be understated that there is no "one size fits all" sentence for any offence. In R. v. Lacasse, supra at para. 54 the Court provided the following guidance:

The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.

[64] Sentencing precedents are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 at paras. 29 and 30, the Ontario Court of Appeal emphasized that:

It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.

In R. v. Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:

So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together."

[65] Recently, in R. v. Kelly, [2022] O.J. No. 4326 at paras. 35 and 36 (Ont.C.J), the Court cautioned that:

The Supreme Court of Canada has emphasized that usual ranges of sentence are neither "straitjackets" nor hard and fast rules. Rather, they are properly understood as "historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64 at paras. 56-60. There is no requirement for exceptional circumstances for a sentencing judge to impose a sentence outside the usual range: Friesen, at paras. 36-39; 111-112.

Thus, while ranges are relevant to the analysis, sentencing is best understood as an exercise of judicial discretion to individualize the sentence for a particular offender who committed particular offences, in a particular community. Proportionality remains the overarching objective: R. v. Parranto, 2021 SCC 46, at paras. 36-40; R. v. Mohamed, 2020 ONCA 163 at para. 28.

[66] The crown relied on one decision to support his position of 3 years incarceration. He asserted that the decision of R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 ought to be determinative of the appropriate sentence in this case.

[67] Mr. Nur was 19 years old, with no prior record, great family supports and a bright future. His family came to Canada as refugees. They were described as law abiding citizens. Mr. Nur plead guilty to very basic facts after setting the matter for trial.

[68] A young man went into a community center and indicated that he was frightened of some individuals outside. This neighbourhood had been plagued by gun violence so the center was locked down. When the police responded to the scene, Mr. Nur fled, and a foot chase ensued. While running from the police, he discarded a loaded, prohibited firearm.

[69] Because the mandatory minimum sentence for possession of a loaded gun was 3 years at that time, he received 40 months imprisonment despite multiple mitigating considerations. Mr. Nur had been in custody for 26 months. The court attributed more than 1 for 1.5 credit for the pretrial custody, so he received time served plus a period of probation.

[70] The Supreme Court upheld the Court of Appeal’s decision in R. v. Nur, 2013 ONCA 677 striking down the mandatory minimum sentence but upholding Mr. Nur’s sentence. The Supreme Court cited favourably Justice Doherty’s remarks at para. 206:

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.

[71] The crown submitted that Mr. McLarty-Mathieu, like Mr. Nur, has significant potential but he must receive an exemplary sentence because his conduct falls at the “true crime” end of the spectrum. He possessed a loaded restricted firearm in circumstances in which he posed a significant danger to others. As a result, despite the mitigating circumstances, a three-year sentence is essential to reflect the aggravating facts and the principles of denunciation and deterrence.

[72] Sentence ranges are not static. They evolve and must be responsive to various factors including growing social awareness. Since the Nur decision, there have been many subsequent decisions that acknowledge the seriousness of gun crimes and the need for exemplary sentences, while balancing some uniquely mitigating circumstances, including social context evidence, that may mitigate the culpability of the offender.

[73] Counsel provided numerous decisions released within the past two years in which offenders who have been convicted of “true crime gun” offences have received sentences of less than two years incarceration and even conditional sentences: R. v. Morfo, 2020 ONSC 5663, [2020] O.J. No. 4158 (Ont.C.A.); R. v. Allegro, [2022] O.J. No. 1780 (Ont.S.C.J.); R. v. Lewis, [2022] O.J. No. 318 (Ont.C.J.); R. v. Moses, 2022 ONSC 332.

[74] In addition to these guiding precedents, in both leading decisions on social context evidence, the offenders were convicted of possession of gun offences. In R. v. Anderson, supra, at paras. 71 to 73 the Nova Scotia Court of Appeal found that:

It was the judge's view that a conditional sentence of imprisonment provided "the opportunity to blend principles of deterrence, denunciation with restorative options of accountability and reparation". She concluded that a conditional sentence was appropriate in Mr. Anderson's case, a sentence she described as "a substantial jail term in the community under stringent conditions":

Mr. Anderson has the opportunity, with the assistance of his community, to be held accountable, to be rehabilitated and to give back. I believe that he is at a place in his life where he is ready to take full advantage of the opportunities that come with serving a substantial jail term in the community under stringent conditions. He has proven his ability to follow court ordered conditions for well over a year.

The conditions imposed by the judge included the mandated statutory conditions and numerous additional conditions tailored to Mr. Anderson's circumstances. These conditions required Mr. Anderson to: reside at a certain address, support his children, attend Afrocentric therapy interventions to address trauma, attend literacy and education interventions with an Afrocentric focus and obtain a reading assessment, seek out mentorship with 902 Man Up, IMOVE or both, and perform 50 hours of community service work in the African Nova Scotian community. Mr. Anderson was prohibited from owning, possessing or carrying a weapon. He was placed on eight months of house arrest to be followed by a 9 p.m. to 6 a.m. curfew for eight months. At the completion of his conditional sentence, Mr. Anderson was ordered to serve two years of probation with conditions. The judge imposed the appropriate ancillary orders.

[75] In R. v. Morris, supra, the offender was a 23-year-old, black man who had no adult criminal record, but it was not his first time before a criminal court. He was found guilty, after trial, of possessing a loaded firearm in a public place. Police were responding to an allegation of an armed home invasion when they encountered Mr. Morris and a few other young men. Mr. Morris ran from the police necessitating an extensive foot chase and he discarded the firearm while fleeing. The trial judge relied on social context evidence to mitigate the seriousness of the offence as opposed to the culpability of the offender. He was sentenced to 15 months incarceration and 18 months probation. The Court of Appeal granted the appeal and increased the sentence to 2 years incarceration to be followed by a period of probation.

[76] Mr. Morris did not have the mitigation of a plea of guilty. He ran from the police and discarded a loaded firearm in a public place which exacerbated the risk to the safety of the officers in pursuit and the community. He presented false evidence during his trial including accusing the police of planting the gun. Although he was remorseful for the pain that he caused his mother, he did not take any responsibility for his misconduct. He did not have the benefit of mitigating facts that are present in this case.

[77] The Court of Appeal reviewed the range of sentences for these offences at para. 131:

As indicated in R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d) 351, sentences at or just below the two-year mark may be appropriate for some s. 95 offences. When the sentencing judge determines that an appropriate sentence is in that range, counsel and the sentencing judge must fully explore various options which could eliminate or reduce the offender's period of actual incarceration while still giving effect to the proportionality principle. [emphasis mine]

[78] Despite the aggravating facts and the absence of substantially mitigating factors, the Court of Appeal found at paras. 180 to 182:

Taking into account the mitigating and aggravating factors, we think 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. When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.

Mr. Morris was in custody on other charges when sentenced on these charges. Understandably, given the positions of the parties, no one suggested Mr. Morris should receive a conditional sentence. We would observe, however, that all other factors being equal, had Mr. Morris been before the courts exclusively on these charges and had a conditional sentence, like that ordered in Anderson (NSCA), been available, the trial judge would have had to give that option serious consideration.

We also agree with the trial judge's conclusion that a term of probation was necessary. Probation provided for an extended period of supervision and access to culturally-sensitive counselling. Both had the potential to further Mr. Morris's rehabilitation and provide added long-term safety for the community. As probation can only be imposed if a period of incarceration is no more than two years, the restraint principle favoured a sentence of two years or less: see Criminal Code, s. 731. [emphasis mine]

[79] In R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No. 3409 (Ont.S.C.J.), Justice Schreck sentenced an offender who committed a similar offence, with fewer mitigating facts than are present in this case, to a conditional sentence. The offender was convicted after trial. He was 32 years old and he had no criminal record.

[80] After summarizing the facts, the Court engaged in an extensive review of various precedents with respect to the sentence ranges for gun offences:

On the morning of October 21, 2019, Mr. Beharry was driving a motor vehicle on Highway 401 in Toronto when he was involved in a collision. The police who attended the accident scene saw a marijuana grinder on the passenger seat of Mr. Beharry’s car and formed grounds to believe that he had cannabis in the vehicle in contravention of the Cannabis Control Act, 2017, S.O. 2017, c. 26. As a result, they searched the vehicle. On the rear passenger side seat, they found a fanny pack containing a loaded Taurus G2S 9 mm handgun.

At paras. 30 and 31: Mr. Beharry’s conduct is clearly not in the nature of a regulatory offence. But nor is he an “outlaw” who carried the firearm “as a tool of his criminal trade.” Rather, he falls between the two extremes: R. v. Kongolo, 2022 ONSC 3891, at para. 69; R. v. Marsan, 2020 ONCJ 638, 69 C.R. (7^th^) 431, at para. 27. Because of this, in my view the sentencing range suggested by the Crown, three and a half to four years, does not apply. [emphasis mine]

The well-established three-to-five year range that is often mentioned in s. 95 sentencing cases applies in situations where “the use and possession of the gun is associated with criminal activity, such as drug trafficking”: R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Marshall, 2014 ONCA 692, at paras. 47-48; Nur (S.C.C.), at para. 82. Lower sentences in the upper reformatory or lower penitentiary range can and have been imposed in cases in the “middle of the spectrum,” that is, where the firearm is not possessed in connection with other criminal activity: R. v. Smickle, 2013 ONCA 678, 2014 ONCA 678, 304 C.C.C. (3d) 371, at para. 30 (additional reasons at 2014 ONCA 49, 306 C.C.C. (3d) 351); R. v. Johnson, 2022 ONSC 2688, at para. 38; R. v. Shomonov, 2016 ONSC 4015, at para. 12; R. v. Downey, 2017 ONCA 789, at paras. 9-12; R. v. Dalton, 2018 ONSC 544, at para. 56; R. v. Filian-Jiminez, 2014 ONCA 601, at para. 2; Kongolo, at para. 74; Boussoulas (S.C.J.), at para. 22.

At paras. 49 and 50: In my view, given Mr. Beharry's lack of prior record, his rehabilitative potential, the systemic factors at play in this case, and the fact that the firearm possession was not related to other criminal activity, a conditional sentence is appropriate in this case.

Based on the foregoing, on Counts 3 and 4, Mr. Beharry is sentenced to concurrent terms of imprisonment of two years less one day, to be served in the community pursuant to a conditional sentence order.

[81] Finally, in R. v. Desmond-Robinson, 2022 ONCA 369 the appellant admitted possession of narcotics, but he denied that he knew there was a firearm, a sawed-off rifle, in a backpack under a pile of clothing in his closet. There was ammunition for the sawed-off rifle in his jacket hanging in the same closet. He was convicted after trial. While the trial judge determined that a sentence of less than two years was appropriate, the court found that a conditional sentence was not consistent with the predominant principles of sentencing of denunciation and deterrence. The Court of Appeal overturned the sentence and found at paras. 13 to 18:

We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge's reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.

The trial judge erred in principle in holding that a conditional sentence was beyond the range of potential sentences for the offences committed by the appellant. In light of that error, it falls to this court to determine a fit sentence.

Counsel for the appellant in his submissions acknowledges that a significant term of imprisonment is appropriate in the circumstances. He submits, however, that having regard to all of the relevant considerations, including the appellant's very positive rehabilitative steps while on bail, a conditional sentence of two years less a day plus probation for 24 months is the appropriate sentence.

We agree with counsel's submissions. The material before the trial judge paints a very positive picture of the appellant. He is a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.

The evidence placed before this court makes an even stronger case for a conditional sentence. The offences took place over five years ago. Since then, the appellant has completed a culinary program through the Toronto District School Board and now works as a chef in a restaurant. He has become a father and lives with his fiancée and child. He has taken on significant childcare and household responsibilities. He has stayed out of trouble and has not been charged with any further offences.

Given the circumstances of this offender, a conditional sentence on the firearms charge of two years less a day, to be followed by probation for two years, is a fit sentence.

[82] Based on a review of these precedents, it is evident that the sentence range has broadened since R. v. Nur, supra, in response to additional considerations that were not before the Supreme Court of Canada. A sentence of less than two years incarceration would be fit, proportionate and within the range of sentence recently contemplated by the Ontario Court of Appeal as well as numerous other courts. The remaining consideration is whether this sentence ought to be served in custody or in the community.

iv. The impact of social context evidence in this case:

[83] There is no doubt that possession of a loaded handgun is an extremely serious offence that merits a denunciatory sentence in the hopes that other young men will be deterred from possessing firearms. Moreover, statistically the most predominant victims of shooting homicides are young black men.[^3] Members of the black community benefit from judicial pronouncements that their lives matter and sentences that express condemnation of gun violence and possession of these deadly weapons.

[84] In R. v. Morris, supra at para 85, the Court of Appeal considered that:

As pointed out in the "Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario", Black communities experience a disproportionate share of serious violent crime in the Toronto area. Black youth in particular report higher levels of both violent victimization and violent offending than youth from other racial groups. Law-abiding members of those communities are the victims of overt and systemic anti-Black racism. They are also the victims, both direct and indirect, of the harm caused by gun-related crimes in their communities. Are these law-abiding members of the community to be told that the message of denunciation and deterrence, which applies to gun crimes committed in other communities, is to be muted in gun crimes committed against them in their community so the court can acknowledge the reality of anti-Black racism, a reality that those members of the community know only too well? We strongly doubt that more lenient sentences for the perpetrators of gun crimes will be seen by the law-abiding members of the community as a positive step towards social equality. Any failure to unequivocally and firmly denounce serious gun crimes, like those committed by Mr. Morris, through the punishment imposed, implies tolerance of those crimes when committed by certain offenders in certain communities. [emphasis mine]

[85] In addition to possessing a readily accessible loaded gun in a car, Mr. McLarty-Mathieu was driving while substantially impaired by alcohol with very high breath readings. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 7 to 8, the Supreme Court explained that:

The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly. Despite countless awareness campaigns conducted over the years, impaired driving offences still cause more deaths than any other offences in Canada: House of Commons Standing Committee on Justice and Human Rights, Ending Alcohol-Impaired Driving: A Common Approach (2009), at p. 5.

This sad situation, which unfortunately continues to prevail today, was denounced by Cory J. more than 20 years ago:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, [page 1102] drunk driving is clearly the crime which causes the most significant social loss to the country.

[86] Mr. McLarty-Mathieu’s background and experiences with systemic racism do not excuse, justify or lessen the seriousness of any of these crimes. Nevertheless, his life experiences may attenuate his moral culpability for the firearm offence because this evidence provides an explanation, not an excuse, for his choice to possess a gun for the purpose of protecting himself. This added context is a limited mitigating factor.

[87] In Morris, supra, the Court of Appeal provided guidance with respect to how these considerations may factor into the determination of the appropriate sentence. I found the following excerpts to be particularly helpful:

75 With respect, we do not agree that the gravity or seriousness of Mr. Morris's offences is diminished by evidence which sheds light on why he chose to commit those crimes. We do agree with the trial judge that an offender's life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances. Those life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system.

76 Evidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes. Possession of a loaded, concealed handgun in public is made no less serious, dangerous, and harmful to the community by evidence that the offender's possession of the loaded handgun can be explained by factors, including systemic anti-Black racism, which will mitigate, to some extent, the offender's responsibility. [citations omitted]

97 There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender's moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender's colour. Everyone agrees there can be no such discount.

106 In summary, social context evidence, which helps explain how the offender came to commit the offence, or which allows for a more informed and accurate assessment of the offender's background, character and potential when choosing from among available sanctions, is relevant and admissible on sentencing. Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust. A sentencing process which frankly acknowledges and addresses the realities of the offender's life takes one important step toward the goal of equal justice for all.

[88] In Beharry, supra, the offender, like Mr. McLarty-Mathieu, possessed a firearm for his own protection. Justice Schreck accepted that the offender’s choice to possess a firearm was informed by his personal circumstances but echoed the comments of the Court of Appeal’s comments in Morris and strongly cautioned at paras. 23 and 24 that:

…Canada is not the United States. Not only is there no constitutional right to possess a handgun, but Parliament has determined that doing so constitutes a serious criminal offence and our courts have long held that it is an offence deserving of significant punishment. As a result, Mr. Beharry's motive for possessing the firearm has only a limited mitigating effect for the reasons explained in Morris, at para. 101:

It must be stressed, however, that Mr. Morris's genuine fear, regardless of its cause, is only a limited mitigating factor. He still chose to arm himself in public with a concealed, loaded, deadly weapon. As indicated above, Mr. Morris's reasons for choosing to arm himself do not detract from the seriousness of the crime he committed. Even if his conduct is made somewhat less blameworthy by the explanation offered for possessing the loaded handgun, Mr. Morris's conduct still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk.

That said, while Mr. Beharry's motive has only a limited mitigating effect, it nonetheless distinguishes this case from those where offenders possessed firearms to further some criminal purpose (often drug trafficking), which is a significant aggravating factor.

[89] Mr. McLarty-Mathieu’s choice to arm himself was informed by a number of background factors including a genuine fear for his safety and a lack of faith in the ability of the police to protect him. This social context evidence is a mitigating factor. Nevertheless, it does not change the seriousness of his offences which were incredibly dangerous misconduct considering he possessed a loaded handgun while he was drinking heavily, partying and he blacked out.

[90] While denunciation and general deterrence are the predominant sentencing principles, there are multiple mitigating factors establishing that Mr. McLarty-Mathieu has already been specifically deterred from committing similar offences in the future or any offence. He has significant potential for rehabilitation.

[91] Based on a review of recent comparable sentencing precedents, a sentence of less than two years incarceration is a just and proportionate sentence. Accordingly, I must consider whether a conditional sentence should be imposed in the unique circumstances of these offences and this offender.

v. The availability of a conditional sentence:

[92] Considering the comparable cases I have reviewed, it is evident that a conditional sentence is not unprecedented and it is statutorily available. Section 742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence:

1. The offender must not be convicted of an offence that is specifically excluded;

2. The offence must not be punishable by a minimum term of imprisonment;

3. The court must impose a sentence of imprisonment of less than two years;

4. The safety of the community must not be endangered by the offender serving his or her sentence in the community; and

5. A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[93] These offences are not statutorily precluded from being eligible for a conditional sentence. Secondly, there are no minimum terms of imprisonment for any of the offences. Thirdly, I find that the appropriate global sentence is less than two years. Fourthly, I am satisfied that Mr. McLarty-Mathieu has been specifically deterred from committing further offences. He has established that he has significant potential for rehabilitation and to be a positively contributing member of society. He complied with the restrictive terms of bail for more than three years. It is highly unlikely that he will reoffend. I am confident that a conditional sentence would not endanger the safety of the community.

[94] Since the first four prerequisites have been met, the only remaining question is whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[95] Undoubtedly, a strong message must be sent to the general public and like-minded offenders that a heavy price will be paid by anyone who possesses a loaded firearm, especially with the serial number removed and any person who drinks and drives while substantially impaired by alcohol. The sentence must be proportionate to the gravity of these offences and Mr. McLarty-Mathieu’s responsibility for the commission of these crimes.

[96] Mr. McLarty-Mathieu plead guilty to these offences as soon as he had the benefit of legal advice. He was 27 years of age at the time of the offences. He had no criminal record. He has the benefit of an extended supportive family and his church community. He has abided by restrictive bail terms. He attended some counselling with his pastor, and he realizes that he will benefit from participating in more counselling. He has stable employment with an employer who is aware of these offences.

[97] I accept that Mr. McLarty-Mathieu is sincerely remorseful and regrets what he has put his family through since he was charged. The tragedy of losing a friend to gun violence has driven home the seriousness of his crimes. He is grateful that he was arrested because that could have been him. These experiences have altered the self-destructive path that his life was taking at that time to a much brighter and productive future.

[98] A conditional sentence effectively balances the competing sentencing considerations in this case and prevents Mr. McLarty-Mathieu from being another statistic in the overrepresentation of young black men in custody. The terms of the conditional sentence must however reflect that it is a jail sentence in Mr. McLarty-Mathieu’s home. In R. v. Morris, supra, at paras 127 and 129, the Court of Appeal reminded sentencing judges that:

127 A conditional sentence, like that described in Anderson (NSCA), at paras. 126-41, can only be available if counsel provides the court with the information needed to warrant the imposition of a conditional sentence. Not only must the information speak to the offender's circumstances, it must include proposed terms which will meaningfully address the need for deterrence, denunciation, and ongoing supervision of the offender. The information provided by counsel on sentence must give the sentencing judge reason to believe the offender is committed to the terms of the proposed conditional sentence.

129 The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders.

[99] It is counterintuitive to order a conditional sentence, that is intended to be a period of incarceration in an offender’s home as opposed to actual custody, without terms that restrict the person’s liberty. In the seminal decision of R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 at para 117, the Supreme Court of Canada unequivocally stated that: “punitive conditions such as house arrest should be the norm, not the exception”. Similarly, in R. v. Wu, 2003 SCC 73, [2003] S.C.J. No. 78 at para. 25 (S.C.C.), the Supreme Court explained that:

…Parliament did not intend conditional sentences to be "probation under a different name" (para. 28). A conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration. Only when the sentencing judge has rejected other sentencing options, such as a conditional discharge, a suspended sentence, probation or a fine, and has concluded that a term of imprisonment of less than two years is required by the gravity of the offence and the degree of responsibility of the offender, does a conditional sentence arise for consideration. At that point, the question is where the term of imprisonment is to be served, in a penal institution or, under punitive conditions, in the community. "It is this punitive aspect that distinguishes the conditional sentence from probation" (Proulx, supra, at para. 22). [emphasis mine]

[100] There should be “absolutely no ambiguity in the message” that these crimes necessitate denunciatory and deterrent sentences that will result in severe punishment for the offender. The terms of the conditional sentence must reflect that is intended to be punitive while promoting this offender’s prospects for rehabilitation.

vi. Downes credit:

[101] Mr. McLarty-Mathieu has abided by restrictive bail terms for more than three years. The crown conceded that Mr. McLarty-Mathieu ought to be afforded some credit for the time spent on bail but emphasized that “bail is not jail”.

[102] Mr. McLarty-Mathieu has been under complete house arrest with very limited exceptions. For over three years, he has only been permitted to leave his house while in the direct company of his mother, sister or his grandmother or for medical emergencies or “while you are at work”. He was not even permitted to go to and from work without his mother, grandmother or sister present with him.

[103] In R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 at para. 33 (Ont. C.A.), Justice Rosenberg held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” In addition, he noted that (at para. 36):

Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.

[104] The Court of Appeal provided guiding considerations when deciding whether to give credit for time spent on bail conditions at para. 37:

The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[105] Mr. McLarty-Mathieu has excelled while on bail. He made the best of a difficult situation by volunteering at his church, achieving sobriety and continuing to work while living with his mother.

[106] An offender’s productive use of time spent on bail speaks to his or her significant potential for rehabilitation and it is a mitigating factor. As Justice Watt observed in R. v. Adamson, 2018 ONCA 678, [2018] O.J. No. 4104 at para 106 (Ont.C.A.), “it is beyond controversy that prior decisions of this court authorize a sentencing judge to take into account, as a relevant mitigating circumstance on sentence, time spent under stringent bail conditions”.

[107] Mr. McLarty-Mathieu positive life changes while on bail do not mean that the bail terms have not taken a toll on him personally, emotionally, and psychologically. I am satisfied that Mr. McLarty-Mathieu’s liberty interests, love life, friendships, familial relationships, and normal activities were negatively impacted by his release terms.

[108] It is substantially mitigating that Mr. McLarty-Mathieu has abided by three years of release terms without incurring any breaches. These pretrial release terms have been very punitive, and he engaged in exemplary conduct while on bail. Mr. McLarty-Mathieu should receive credit for the time that he spent abiding by these restrictive bail terms in the sense that these considerations have factored into the overall determination of the appropriate sentence.

[109] There is no need to specifically quantify how much credit that I have attributed to Mr. McLarty-Mathieu’s compliance with his stringent bail terms. In R. v. Marshall, 2021 ONCA 344 at paras. 52 and 53, the Court of Appeal discouraged the long-standing practice of specifically quantifying how much time is accredited or assigned to similar mitigating considerations like the harsh conditions in pretrial custody:

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. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the "Summers" credit will be deducted. 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.

Often times, a specific number of days or months are given as "Duncan" credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the "Duncan" credit, only one of presumably several relevant factors, there is a risk the "Duncan" credit will be improperly treated as a deduction from the appropriate sentence in the same way as the "Summers" credit. If treated in that way, the "Duncan" credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.). Arguably, that is what happened in this case, where on the trial judge's calculations, the "Duncan" credit devoured three-quarters of what the trial judge had deemed to be the appropriate sentence but for pretrial custody. [emphasis mine]

[110] I have considered the mitigation of the time that Mr. McLarty-Mathieu spent on pretrial release in two ways. It has factored into my decision that a sentence of less than two years incarceration is appropriate and the overall length and terms of the conditional sentence.

D. Conclusion:

[111] Guns crimes involving young black men who possess a loaded firearm for their own protection are particularly challenging to balance the egregious circumstances of the offence and the mitigating circumstances of some offenders.

[112] Possession of firearms and gun violence are incredibly serious crimes that disproportionality impact the black community as the victims of shootings. Perceptions of the criminal justice system by members of the black community can improve through judicial expressions that the lives and the safety of their community members’ matter. It is important to mete out denunciatory sentences intended to deter the scourge of gun violence and in recognition of the seemingly unrelenting pain and suffering of lost lives in some of these communities.

[113] Whether a sentence is sufficiently denunciatory depends on a consideration of all the facts. In R. v. Ali, 2022 ONCA 736 at para. 42, the Court of Appeal reminded sentencing judges of Justice Lamer’s observations in R. v. Proulx, supra at para. 22 that a conditional sentence will “generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender”. In the circumstances of this case, a denunciatory sentence can be achieved through a conditional sentence, with terms restricting Mr. McLarty-Mathieu’s liberty, considering the totality of the punitive consequences for him and the many mitigations factors.

[114] Mr. McLarty-Mathieu can also make amends to his community for the danger he posed that night by performing a significant number of community service hours. He has the time, good work ethic and ability to volunteer. This volunteer work will also reinforce the steps that he has already taken towards rehabilitation.

[115] I have determined that a total of 20 months conditional sentence to be followed by a period of 16 months of probation will effectively balance all the sentencing principles. This sentence will ensure Mr. McLarty-Mathieu’s supervision in the community for another three years. Considering the distinct delicts of each offence, the conditional sentences on each count will be consecutive. The sentences will be attributed as follows:

Possession of a loaded restricted firearm contrary to subsection 95(1) of the Criminal Code: 16 months conditional sentence to be followed by 16 months of probation, plus a section 109 order for 10 years, plus a DNA order.

Altering the serial number on the firearm contrary to subsection 108(1)(b) of the Criminal Code: 3 months conditional sentence consecutive to be followed by 16 months of probation, concurrent.

Operate Conveyance with over 80 mgs of alcohol in 100 ml of his blood contrary to subsection 320.14(1)(b) of the Criminal Code: 1 month conditional sentence consecutive to be followed by 16 months of probation, concurrent, plus a 12 months driving prohibition.

[116] Considering Mr. McLarty-Mathieu’s limited income and his contribution to the familial household expenses, it would be an undue hardship to impose the full victim fine surcharges on each count. As a result, I will order $50 victim fine surcharges on each count with 6 months to pay and no time in custody in default of non-payment.

[117] Unlawfully possessing a gun does not protect anyone’s life. Rather, guns inevitably lead to devastating consequences and/or tragedy one way or the other. Fortunately, no one was physically injured but Mr. McLarty-Mathieu’s choice to arm himself hurt and disappointed everyone he loves and respects. As result, nearly six years of his life have been and will be subject to court ordered supervision and restrictions on his liberty interests. It is a heavy price to pay.

[118] Mr. McLarty-Mathieu is being given the opportunity to continue along the path that he has been following for the past 3 years. I truly hope that this sentence will reinforce his ongoing rehabilitation while discouraging like minded offenders from obtaining guns for their own protection.

Schedule I

Terms of the 20 months Conditional Sentence Order

• Keep the peace and be of good behaviour;

• Appear before the court when required to do so;

• Notify the Court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation

Reporting:

• Report in person or by telephone to a conditional sentence supervisor:

o within 2 working days;

o and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision.

• You must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request.

Residence:

• You must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor.

Travel restrictions:

• Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor.

Curfew:

• For the first 8 months of your conditional sentence order, you will remain in your residence or on the property of your residence at all times except:

o On Mondays between the hours of 12 p.m. to 4 p.m. in order to acquire the necessities of life;

o On December 24^th^ and December 25^th^ when you are permitted to be outside of your home without a curfew to celebrate the holidays;

o For any medical emergency involving you or any member of your immediate family (spouse, child, parent, grandparent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours;

o While travelling directly to, directly from and while attending at pre-scheduled legal, medical or dental appointments;

o While travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs;

o While travelling directly to, directly from and during the course of your employment;

o While travelling directly to, directly from and during the course of completing your community service hours;

o While travelling directly to, directly from and during the course of attending your place of worship;

o With the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while outside of your residence during your house arrest; and

o For carrying out any legal obligations regarding compliance with this conditional sentence order.

• You must confirm the schedule and addresses for any of these exceptions to your period of home confinement by telephone or in person in advance with the conditional sentence supervisor setting out the times and places for these activities;

• For the last 12 months of your conditional sentence order, you will remain in your residence or on the property of your residence between the hours of 11 p.m. to 6 a.m. daily, except:

o For any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours;

o While travelling directly to, directly from and during the course of your employment;

o While travelling directly to, directly from and during the course of completing your community service hours;

o While travelling directly to, directly from and during the course of attending your place of worship;

o On December 24^th^, December 25^th^, December 31^st^ and January 1^st^ when you are permitted to be outside of your home without a curfew to celebrate the holidays;

o With the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while outside of your residence during curfew hours; and

o For carrying out any legal obligations regarding compliance with this conditional sentence order.

• You must present yourself at your doorway of your residence upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement and curfew conditions.

Counselling and Treatment:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to:

o Alcohol abuse;

o Anger management; and

o Culturally sensitive psychotherapy

• You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Weapons:

• Do not possess any weapons as defined by the Criminal Code.

Community service:

• Perform 180 hours of community service work (preferably volunteering at Celestial Church of Christ or working with black youths in a community center sharing your lived experiences)

o This work is to start no later than one month after the imposition of the conditional sentence and shall be completed at a rate of not less than 12 hours per months.

o You shall complete the community service work as directed by and to the satisfaction of the conditional sentence supervisor within the first 18 months of your conditional sentence.

Schedule II Terms of the 16 months Probation Order

Statutory conditions:

• Keep the peace and be of good behavior;

• Appear before the court when required to do so;

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

Reporting:

• Report in person or by telephone to a probation officer:

o Within 5 working days of the completion of your conditional sentence;

o and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

• Your reporting requirements will end when you have satisfied your probation officer that you have completed all of your counselling.

• You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.

Counselling and Treatment:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:

o Alcohol abuse; and

o Anger management; and

o Culturally sensitive psychotherapy

• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed; and

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[^1]: Affidavit of Mr. McLarty-Mathieu at para. 8 exhibit 2 on sentencing

[^2]: Affidavit of Mr. McLarty-Mathieu at para. 12 exhibit 2 on sentencing

[^3]: Appendix A from the Morris decision