ONTARIO COURT OF JUSTICE

CITATION: R. v. Williams, 2022 ONCJ 57

DATE: 2022 02 10

COURT FILE No.: Central East Region: Oshawa Court File # 21-25128

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAYDEN WILLIAMS

Before Justice Peter C. West

Submissions Heard on December 21, 2021

Oral Reasons for Sentence released on February 10, 2022

Mr. N. Hegedus.............................................................. counsel for the Crown

Ms. A. Dresser................................ counsel for the accused Jayden Williams

WEST J.:

[1] I found Jayden Williams guilty of possession of a loaded prohibited firearm or restricted firearm, contrary to s. 95(1); possession of a prohibited or restricted firearm knowing his possession was unauthorized, contrary to s. 92(1); and occupying a motor vehicle knowing there is a prohibited or restricted firearm in the vehicle and that this possession was unauthorized, contrary to s. 94(1)(a)(i)(B) after a trial. The matter was adjourned to December 17, 2021, for submissions by counsel respecting a constitutional challenge to the Ontario Cannabis Control Act. On that date I was advised the defence was abandoning that application and the matter was adjourned to December 21, 2021, for sentencing.

[2] I have set out the facts in detail in my written reasons dated September 17, 2021 and do not intend to repeat them here, although I adopt those facts in my determination of a proportionate sentence. I received a Presentence Report (PSR), dated November 25, 2021, which was marked Exhibit 1 on sentence.

[3] On January 28, 2020, Jayden Williams was charged with four firearm offences relating to a loaded Jimenez Arms handgun found on his person in a Puma bag affixed over his shoulder at his chest under his winter jacket. The Crown advised the charge originally facing Mr. Williams respecting possession of a firearm where the serial number had been removed should be dismissed as the Crown had not proven beyond a reasonable doubt that Mr. Williams knew this fact.

[4] An Audi A4 was stopped by police because of an expired validation tag. Upon speaking to the driver, J. W., a young person (age 17), the officer noted a distinct odour of marihuana and observed an opened package in the centre console cup holder. The Highway Traffic Act investigation was converted into a Cannabis Control Act investigation, which resulted in all five occupants of the Audi A4 being requested to exit the motor vehicle and sit on the curb while searches were carried out of each occupant. The investigating officer requested female police officers attend to assist in the search of the three female occupants who were sitting in the backseat. Mr. Williams was in the front passenger seat and J.W. was in the driver’s seat. The Audi A4 was registered to Verona Dale, Sarah Dale’s mother, however, Sarah Dale testified the A4 was her vehicle. She was seated behind the driver.

[5] Ms. Dale was searched first and it was during that search that a fanny pack was discovered inside her sweat pants below her buttocks between her legs. This fanny pack contained a loaded revolver which was cocked. When the fanny pack was discovered J.W. immediately called out to the officers assembled that the fanny pack was his. As a result of the discovery of this loaded prohibited or restricted firearm all of the occupants from the Audi A4 were arrested for possession of a firearm in a motor vehicle. They were each advised of their right to counsel and a pat down search was conducted by a police officer before each of them were put into separate police cruisers. Mr. Williams was wearing a black puffy winter coat and a pat down search was performed by an officer and he was placed inside the backseat of a police cruiser handcuffed with his hands to the rear.

[6] Mr. Williams was paraded before the booking sergeant and then taken to an interview room in the C.I.B. office in 19 Division, where he was to be interviewed by a member of the Guns and Gangs Unit. After being placed into this interview room, which was being video recorded, Mr. Williams was requested to remove the puffy jacket, his belt and shoes by one of the officers who was involved in his arrest and transport to the police station. This was recorded on video and after he removed the puffy jacket it was clear he had a “Puma” satchel over his left shoulder and under his right arm, in the front of his body, on his chest on top of his hoody. The officer took the three items requested and can be seen exiting the interview room and placing the jacket, belt and shoes on a chair outside the interview room Mr. Williams was in. Mr. Williams was left alone for a few seconds and when the officer left he can be seen removing the “Puma” satchel from his body and he held it out for the officer to take when he returned. The officer then left the room and placed the satchel on the chair.

[7] The door of the interview room is closed and Mr. Williams sat on a chair behind a small table. The officer who had obtained the items from Mr. Williams left to go to the washroom as his partner returned from parking their police cruiser, after removing it from the sally port. It was this officer that unzipped the satchel, as he had not previously observed it with Mr. Williams and when he did the loaded Jimenez Arms handgun was discovered.

[8] The evidence also disclosed that the five occupants of the Audi A4 had been at the Moxies Restaurant in Pickering, where they ordered dinner and alcoholic drinks before leaving the restaurant driving east on Kingston Road to Brock Road where they turned north and were ultimately stopped by the investigating officer because of the expired validation tag on the Audi A4’s license plate. There was no evidence led as to where they were heading when the traffic stop was made.

[9] Mr. Williams was initially detained upon his arrest on the firearms charges and on March 25, 2020, he was released after a bail review before Justice Leibovitch, which included a condition of house arrest unless he was in the company of one of his sureties or going to, returning from or at school. This condition was varied on September 14, 2020, to allow Mr. Williams to be absent from his residence while going to, returning from or at work. On December 21, 2021, Mr. Williams pleaded guilty to a charge of flight from police, contrary to s. 320.17. On April 8, 2021, the police attempted to perform a traffic stop of Mr. Williams driving his mother’s car at 9:51 p.m., however, he fled the police in an attempt to try and prevent being stopped. This was ultimately unsuccessful. Mr. Williams was the lone occupant of the car and he was outside his residence without his surety being present as required by his house arrest condition in his release order. He did not conduct a bail hearing to determine if he could be released again on a surety release from the time of his arrest until his guilty plea on this charge

Position of the Parties

[10] Mr. Hegedus, for the Crown, is seeking a three year penitentiary sentence less pre-trial custody, as this is a “true crime” type of possession of a loaded handgun offence, not a regulatory-type offence committed by someone who has the proper firearms certificates and licenses. The Crown submitted a probation order should follow the jail sentence as the remaining custodial sentence will be less than two years and therefore served in the reformatory. Further, the Crown is seeking a further 5 month custodial sentence to be served consecutively to any sentence imposed on the firearms offences. The Crown is also seeking a driving prohibition of 12 months.

[11] Ms. Dresser, on behalf of Mr. Williams, submitted a sentence of two years is a proportionate sentence having regard to the fact that Mr. Williams is a youthful first offender. Mr. Williams has served two periods of time in pre-trial custody, the first from January 28, 2020 until his release on a release order on March 25, 2020 and the second period from April 8, 2021, until today’s date. This second period of time in custody occurred as a result of Mr. Williams breaching his release order as a result of committing further offences. The total time in pre-trial custody is 367days up to February 1o, 2022, and on a 1.5 to 1.0 basis this results in 551.5 days of credit, pursuant to R. v. Summers. Ms. Dresser submitted I should give further credit pursuant to R. v. Duncan of 160 to 200 days, taking into account the number of lockdowns at Central East Correctional Centre, either based on the institution’s records (123) or based on Mr. Williams’ affidavit relating to lockdowns (152) and COVID-19 restrictions experienced by Mr. Williams.

[12] Ms. Dresser submitted a suspended sentence and probation would be the appropriate sentence for the flight from police offence. She submitted the prohibition order is discretionary and given the 1 year suspension imposed by the Ontario Highway Act a 1 year driving prohibition is not necessary.

Circumstances of the Offender

[13] Jayden Williams birthdate is January 18, 2002, and he is currently 20 years of age. At the time of the offences he had turned 18 years of age just 10 days before. Mr. Williams indicated in his affidavit, part of Exhibit 2, that he was with his friends at Moxie’s Restaurant, a last minute invitation, to celebrate his birthday. He was raised by his mother, Linnette Chevannes, and is close with his four maternal siblings that he grew up with. He resided with his mother and his younger sister and older brother in Ajax before his incarceration and plans to return there once he is released from custody. After his birth his father was never around and he would only have sporadic contact with Jayden. His father died in February 2021, when Mr. Williams was in custody. Jayden and his mother reported to the probation officer having a very close relationship.

[14] Mr. Williams and his mother both describe his early childhood as being good. His mother works at two jobs, as a nurse at a hospital and with children with autism. Mr. Williams volunteered at functions organized by his mother. Ms. Chevannes describes her son as the family guy and describes him as being close with his family, he had positive energy, brought laughter and joy to their home, was very kind, always willing to help others and always giving, always helping out around the home. He is greatly missed in their family. His older sister confirmed her brother’s attributes as helping out with household expenses. She described him as helping her when he was staying at her home while on bail.

[15] His friend, Shereena Lewis-James, described him as “outgoing, funny, nice and reliable,…easy to talk to and great with others….He has always been a nice guy…he typically just brushes off any stress or frustration and does not let it bother him.” His teacher in Grade 11 math, Tomikka Brown, provided a letter attesting to how Mr. Williams was always respectful to staff and his peers and was a pleasure to have in her class. She expressed her displeasure with his behaviour and felt he was being led by his peers. She believed he was a good person who got a little lost and with the right help could get back in society and make a positive impact on others.

[16] Mr. Williams was working at a grocery store for 6 months before he was charged on January 28, 2020. He was released on a release order on March 25, 2020, and lived with his older sister, Sushanna Scott. He was under house arrest and completed his high school diploma during the 4 months after his release. In September 2020, he began working for a distribution centre for Loblaws until his arrest for breaching his release order in April 2021. He remained in custody from April 8, 2021 until the present time. Mr. Williams advised the probation officer he had a good relationship with his supervisors and co-workers during his employment. His future plans are to work in construction. His mother described how Jayden contributed financially to the expenses of their family and paid directly for certain family expenses with his earnings.

[17] He advised he drinks alcohol when he is with his friends and continues to use marihuana but he does not view either as a concern. This is confirmed by his mother and sister.

[18] The presentence report can be described as a positive report despite the seriousness of the offences Mr. Williams is to be sentenced for. Mr. Williams told the probation officer he did not take responsibility for the offence but stated he is remorseful. When he was asked what he meant by that statement he said, “he put himself in a position that he should not have and he should have stayed home that night.” In his affidavit, filed as part of Exhibit 2, he addressed his possession of the loaded firearm in this way: “I deeply regret having a firearm that night not just because of the consequences for me personally and the disappointment I have caused my family, but also because of the many ways it could have turned out badly and the risk it posed to the public and the police officers who were dealing with me.”

Aggravating and Mitigating Circumstances

[19] In considering what is a proportionate and fit sentence for Jayden Williams the mitigating and aggravating circumstances must be balanced.

Aggravating Circumstances

[20] The factors which serve to aggravate Mr. Williams’ sentence include:

• The handgun was fully loaded;

• Mr. Williams knew the seriousness of his possession of this loaded prohibited firearm given his secreting the firearm in a satchel under his winter jacket;

• Although the evidence did not prove beyond a reasonable doubt that Mr. Williams knew the serial number was defaced on this loaded firearm, the fact remains it was defaced and he had it hidden on his person;

• Mr. Williams made a deliberate decision to possess a loaded prohibited firearm and hide it in a satchel he then hid under his winter jacket;

• A very serious aggravating circumstance is the fact Mr. Williams brought this loaded firearm out in public;

• He brought this loaded handgun into a busy restaurant, frequented by persons of all ages, including families with young children, which also posed a serious danger;

• Mr. Williams had this loaded handgun on his person while being an occupant in a motor vehicle, which posed a risk to the others in the vehicle and to the public – inside a moving vehicle on two busy thoroughfares as well as a residential area where the traffic stop occurred;

• This loaded handgun was carelessly and recklessly stored inside a satchel strapped to his chest, fully loaded and hidden underneath his winter jacket;

• Mr. Williams had been arrested as an occupant in a motor vehicle where another loaded firearm had been discovered on another occupant in that motor vehicle, and despite this he said nothing respecting the loaded firearm on his person, which went undetected after the police did a pat down search before putting him into the back of a police cruiser handcuffed to his rear and transported to the police station. As a result Mr. Williams brought this loaded firearm secreted on his person into that police station, which created significant risk to himself and the police officers therein;

• A further aggravating factor is the large number of firearms possessed by individuals in the community and the violence caused by those firearms to individuals involved in criminal activities and to the community as a whole.

[21] There can be no doubt that Mr. Williams’ possession of the loaded restricted firearm demonstrates he was engaged in truly criminal conduct and posed a real danger for deadly consequences, particularly when his possession of this loaded firearm was in public places. The facts did not disclose why Mr. Williams or the young person, J.W., both possessed loaded firearms on their person when they were at Moxies Restaurant or driving in the Audi A4. Further, the evidence did not disclose where they were intending to go after leaving the restaurant and stopped on Brock Road by police. The gun was loaded with bullets and Mr. Williams brought it with him out in the public, which leads to the reasonable inference Mr. Williams was prepared to use it. In my view the danger described in the cases dealing with persons who carry loaded restricted firearms out into the community is that the only purpose for the possession of such an item is to threaten, injure or kill another person(s). The very real danger is that innocent members of the community will be injured or killed as a result of such possession. In the Greater Toronto Area the possession of loaded restricted firearms is becoming far too frequent and as Justice Thomas observed in R. v. Nkrumah, 2019 ONSC 3270, at p. 2, (Thomas, RSJ, SCJ), “the court must react meaningfully” to this type of criminal offence. These additional aggravating circumstances demonstrate the paramountcy of the sentencing principles of denunciation and deterrence, particularly general deterrence, as well as protection of the public present in this case. This is an aggravating circumstance to be considered in determining an appropriate, proportionate sentence.

[22] A further aggravating circumstance is the fact Mr. Williams while awaiting his trial on a house arrest release order, breached his bail by being out of his residence without a surety and when an officer attempted to do a traffic stop for suspected speeding he took off and fled from the police. He was ultimately arrested and returned into custody.

Mitigating Circumstances

[23] Mr. Williams is a youthful first offender who does not have a prior youth or adult criminal record. This is a significant mitigating factor and raises the importance of rehabilitation despite the seriousness of these offences.

[24] Mr. Williams has the support of his mother and sister, who both provided letters, marked as part of Exhibit 2. The letters demonstrate the strong support Mr. Williams has from his family members who only want what is best for him. His mother in her letter expressed her hope for her son: “Be positive in life, strive for the best and stay focused no matter what. The choice we make in life sometime doesn’t define who we are and who we can be. At all time try to make good choices in life and this will determine our future. In life to be positive once again. Jayden is a child of a good heart and I hope life will not stop for him but it will teach him to be a better person. I hope and pray that he will make better choices in life and be a better person for not just himself but for others around him.” The fact he has strong family support is a positive factor relating to his being successful in the future.

[25] Mr. Williams completed his Grade 12 while he was on bail and was gainfully employed before his charges and after completing his high school, in a grocery distribution facility for seven months. These are mitigating factors which also demonstrate his being a successful candidate to be rehabilitated in the future.

[26] Mr. Williams has served a lengthy period of time in pre-sentence custody under more onerous and difficult circumstances as a result of increased lock-downs due to staff shortages and the consequences of precautions taken because of COVID-19 protocols and outbreaks. This is a collateral mitigating circumstance to be taken into account in determining an appropriate sentence.

Impact on the community

[27] There is no specific victim affected by Mr. Williams’ criminal conduct other than the impact on the community at large caused by a person having possession of a restricted or prohibited firearm out in public. Numerous sentencing decisions have referred to “illegal handguns” being a scourge and a plague on the community. Justice Goldstein in R. v. Beals, [2015] O.J. No. 2306 (SCJ) at para. 31, has in my view clearly expressed the significant impact on the community perpetrated by offenders who possess illegal firearms:

That said, the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes: either to kill people, or to intimidate people -- and the reason they are intimidating is because everyone knows about the first purpose. These weapons are extremely dangerous, especially when they are loaded and tossed away in a public place, as this one was. The crime of possessing one of these weapons is not a momentary lapse of judgment. It is not like participating in a bar fight that gets out of hand and causes serious injury. Possession of weapons like these usually requires more thought. We do not know exactly how Mr. Beals came into possession of this weapon, but we do know that he got rid of it in a manner that suggests he knew what he was doing. The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public.

Determining the Appropriate Sentence

[28] In determining an appropriate sentence for Mr. Williams, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[29] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[30] As Rosenberg J.A. held in R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369, at para. 26:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[31] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[32] Although deterrence and denunciation are the most significant sentencing principles in cases involving the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude a consideration of rehabilitation, particularly in the case of a youthful first offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis of the shortest possible sentence that will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. In this case Mr. Williams is a youthful first offender, who has never received a custodial sentence. (See also R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 (C.A.), at paras. 32 to 34; R. v. Blanas, 2006 CanLII 2610 (ON CA), [2006] O.J. No. 364 (C.A.), at para. 5; and R. v. Dubinsky, 2005 CanLII 5668 (ON CA), [2005] O.J. No. 862, at para. 1.)

[33] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92).

[34] Here is a sampling of a number of sentencing decisions dealing with possession of a prohibited or restricted firearm arising after the mandatory three year minimum sentence was struck down as unconstitutional in R. v. Nur, :

a) R. v. Smickle, 2013 ONCA 678, [2013] O.J. No. 5070 (C.A.) additional reasons, 2014 ONCA 49, [2014] O.J. No. 258 (C.A.) The accused was alone in his cousin’s apartment taking a photograph of himself in front of a laptop computer holding a loaded cocked handgun to post on his Facebook page. At the same time this was occurring the police executed a search warrant at the cousin’s apartment, saw the handgun in Mr. Smickle’s hand and arrested him for possession. After a judge alone trial the accused’s evidence was not accepted and he was convicted. The trial judge struck down the mandatory minimum sentence and imposed a 12 month conditional sentence less 7 months pre-trial credit. The Court of Appeal held the sentence imposed was manifestly unfit and indicated there were a number of findings made by the trial judge not available on the evidence. It was not known how the accused came into possession of the firearm or for how long. There was no evidence what his intent was with the gun and no evidence his possession was solely for the purpose of taking a photograph with his laptop. It was erroneous for the trial judge to characterize his conduct as “adolescent preening” given the accused's age (27) and thereby minimize his moral culpability and the danger his conduct posed to others. The Court of Appeal held it was not for the trial judge to fill, through speculation, the void created by the accused’s perjury. He had a loaded cocked gun in his hand and was engaged in conduct that posed a serious and immediate risk to others (Persons in the other apartments, the police officers executing the search warrant and the accused). According to Justice Doherty, “…a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.”

At the second hearing the question was whether re-incarceration was necessary to adequately address deterrence and denunciation and the Court of Appeal held, “Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” The sentence imposed was 2 years less a day with credit for 12 months leaving 12 months less a day, which was stayed.

b) R. v. Harutyunyan, 2012 ONCA 637, [2012] O.J. No. 4417 (C.A.) The offender was stopped by police while driving. He tried to run away. A loaded handgun fell out of his pants. He was convicted of various offences associated with possession of a loaded handgun, as well as obstruction of justice. The offender had no criminal record and did well while on bail. Benotto J. (as she then was) found that an appropriate sentence was 4 years: R. v. Harutyunyan, 2012 ONSC 58, [2012] O.J. No. 177. The Court of Appeal upheld the sentence.

c) R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (C.A.), after trial, the trial judge imposed a 3.5 year sentence where a firearm was possessed while the accused engaged in drug trafficking, the sentence was upheld by C.A., no criminal record and accused had left the loaded firearm in a satchel at his friend’s house while stepping out for lunch.

d) R. v. Beals, [2015] O.J. No. 2306 (SCJ, Goldstein J.). Beals, a 23 year old first offender, threw a loaded .22 semi-automatic into a grassy area after a car crash. The car crash was video-taped by an in-car police camera and Beals was observed throwing an object into the grassy area. Guilty plea. “True crime” end of the spectrum will attract a significant penitentiary sentence for possession of a loaded prohibited weapon. Sentence imposed 3 years.

e) R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (C.A.), affirming 2016 ONSC 94, [2016] O.J. No. 92 (SCJ Goldstein J.). Mansingh was found guilty after a trial, he ran from police and tried to dispose of a loaded handgun. He was a youthful first offender. Sentencing judge found Mansingh engaged in low level drug dealing as an aggravating factor. Sentence imposed 43 months was affirmed by Court of Appeal

f) R. v. Nsiah, [2017] O.J. No. 526 (SCJ, Goldstein J.), Nsiah, age 23, a .22 calibre revolver with ammunition was found nearby in a bedroom closet pursuant to a search warrant, minor record for assault, obstruct justice and breaches of court order, 2.5 year sentence for s. 95(1) offence and 6 months consecutive for the s. 117 offence (breach of weapons’ prohibition order). This was a guilty plea.

g) R. v. Filian-Jiminez, 2014 ONCA 601, [2014] O.J. No. 3852 (C.A.). Early guilty plea to possession of loaded restricted firearm. Accused admitted to keeping gun in house for protection but had repudiated gang membership and was employed full-time. Sentencing judge imposed an 18 month custodial sentence. On the Crown appeal, Court of Appeal in a brief endorsement, indicated this was a very low sentence, however, they were not persuaded the sentencing judge erred in principle and gave deference to his sentence as it was not manifestly unfit.

h) R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104 (SCJ, Campbell J.). Boussoulas, 65 year old first offender had a loaded .45 calibre Colt handgun behind dresser in the bedroom. The gun was purchased because of death threats from renters who were using the property as a grow-op and he was a witness. Accused’s explanation was accepted by the sentencing judge. Sentenced to 21 month custodial sentence with probation.

[35] Ms. Dresser provided me with the following decisions involving firearms she submitted were similar to the circumstances present in Mr. Williams case:

a) R. v. Marsan, 2020 ONCJ 638 (OCJ, H. Pringle J.) Early guilty plea by youthful first offender, very remorseful, strong work ethic, strong support, proactive steps towards rehabilitation seeking treatment for substance abuse and anxiety, positive behaviour on bail (no breaches), community service in anticipation of a guilty plea, Mr. Marsan’s car collided with OPP cruiser and during investigation discovery of marihuana grounded search of his car, traumatic incident of being robbed as 16 year old which caused PTSD, police discovered loaded firearm in satchel in trunk of car for protection, second gun also found in back seat in bag with co-accused’s name on the bag, exceptional circumstances existing, sentence imposed 18 months reduced by 4 months for Duncan credit, followed by 3 years’ probation.

b) R. v. Yusuf, [2020] O.J. No. 3933 (SCJ, Monahan) Reports of a firearm discharge outside apartment building, description of vehicle leaving area, investigated by police, loaded firearm found under passenger seat Yusuf sitting behind. Ahmed was driver of vehicle. Trial judge found Yusuf in possession of firearm and it was his because of where it was located and from numerous photographs of firearm found on cell phone on seat beside where Yusuf observed in backseat. The cell phone was found to be Yusuf’s. Yusuf convicted of ss. 95(1); 91(1) (v) and (vi); and 88(1)(iii) and (iv). The timing of shots fired and when and where vehicle was stopped supported the only reasonable inference that Yusuf had fired shots from vehicle and Ahmed was therefore aware of the loaded firearm inside the vehicle he was driving. Ahmed convicted of ss. 94(1) and 94(2). Both accused had no criminal record and were 21 and 22 respectively at time of offence. Ahmed had supportive family and was continuing his education while on bail. Yusuf was sentenced to 40 months and Ahmed was sentenced to 18 months. In Yusuf’s case the Crown sought a sentence of 6 years less PTC and in Ahmed’s case the Crown sought a two year less a day sentence and 3 years probation. Both the Crown and the defence focused on Mr. Ahmed’s lesser role as well as his family support and potential for rehabilitation.

c) R. v. Molin, [2015] O.J. No. 6074 (SCJ, McCarthy) Police executed search warrant at a house and located a sawed off loaded shotgun with the serial number defaced in a gym bag with a letter address to Mr. Molin. Mr. Molin, age 20, was a temporary guest in the house. He had a dated youth record with no prior weapons charges. After a jury trial a two year penitentiary sentence was imposed followed by 2 years probation.

d) R. v. Cadienhead, [2015] O.J. No. 3125 (SCJ, Allen) A 20 year old accused pleaded guilty after Charter motions dismissed to three charges, s. 95(1) offence, possession of defaced firearm and breach of probation, a weapon’s prohibition made the same day of his arrest. Criminal record was for theft under, granted conditional discharge with probation with condition not to possess weapons. Tragic family background, mental health issues, interested in counselling/treatment. Received two year less a day total sentence consisting of 18 months for two weapons offences (concurrent) and 6 months consecutive for breach of probation, followed by 2 years’ probation.

e) R. v. Truong, [2010] O.J. No. 5750 (SCJ, Code J.) Mr. Truong was 19 years old with a criminal record and there was evidence of his association with a gang at the time of the commission of this offence in January 2008. At the time the minimum sentence for a first offence under s. 95(1) was 1 year. Mr. Truong was in a crack house in possession of a loaded revolver. He was sentenced to a 2 1/2 year sentence less pretrial custody credit of 6 months (although the defence submitted there should be credit on a 2 for 1 basis, as well as additional credit for house arrest bail conditions for total credit of 18 months, however, Justice Code only gave 6 months credit). Sentence imposed was 2 years less a day followed by 2 years probation.

f) R. v. Delchev, [2014] O.J. No. 2769 (C.A.) A 36 year old offender found guilty after a trial of possession of a number of prohibited and restricted firearms as a result of a search warrant executed at his home. In addition, he was convicted of possession of cocaine for purpose of trafficking although the trial judge found there was no evidence linking the firearms to the accused’s possession of the cocaine. A sentence of 42 months for the firearms offences and a one year concurrent sentence for the P for P offence. Crown appeal was dismissed and deference given to trial judge’s sentence. By the time of the appeal the Nur and Smickle cases striking down the mandatory minimum sentence of 3 years had been decided by the Ontario Court of Appeal.

[36] The Crown provided only two cases, R. v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108 (C.A.) and R. Kawal, [2018] O.J. No. 6631 (SCJ, Harris).

a) R. v. Morris, supra. The Ontario Court of Appeal on a sentence appeal by the Crown, increased a sentence of 15 months imprisonment and 18 months probation imposed after a jury trial for offences relating to the respondent’s possession of a loaded gun to two years less a day and 18 months probation. Police had been called to investigate a home invasion robbery. The victim identified the robbers as four Black men. When police responded they observed 4 Black men walking together in a parking lot in the vicinity of the robbery. Two men went to a vehicle parked in the lot and the accused and a fourth man were walking towards a second vehicle. Police attempted to stop these two and they fled. Mr. Morris climbed a high fence and ran into an adjacent parking lot. He was wearing a jacket and appeared to be trying to remove it. He went into a stairwell and when he re-emerged from it he was no longer wearing the jacket. The officer eventually caught up to him, tackled him and arrested him for the robbery. The officer went back to the stairwell, found the jacket and discovered a loaded .38 calibre Smith & Wesson handgun. As it turned out there was no evidence to charge Mr. Morris or any of his three companions with robbery. After a jury trial Mr. Morris was found guilty of being in possession of the loaded firearm. It was clear the jury found Mr. Morris’ version of the police finding his jacket on the fence, throwing it into the stairwell after planting a gun in the pocket to be a lie.

As a result of a stabbing in 2013, Mr. Morris had ongoing medical problems that also affected his mental health. The trial judge found that deterrence and denunciation were the paramount sentencing principles and required a significant jail term but found that systemic anti-Black racism effectively limited the choices available to Mr. Morris, such that deterrence and denunciation should have a less significant role in sentencing. Mr. Morris was 23 years of age and did not have a criminal record. His family doctor had referred him to a psychiatrist because of the stabbing about 11 months before his arrest on the robbery in April 2017. There was a report that recommended a medication regime and follow-up psychotherapy, which Mr. Morris did not do. Two social context reports were filed by the defence: one general dealing with anti-Black racism in Canadian society, especially the Toronto area and how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. The Court of Appeal agreed that a sentencing judge could take judicial notice of the many historical and social facts referred to in this report but found the report had value in the sentencing process and as such was admissible. The second report, written by one of the co-authors of the first report, was a specific and detailed report of how the more general social context information provided in the first report related to the specific circumstances of Nr. Morris’ life experiences and sought to demonstrate how the negative consequences of anti-Black racism were very much a reality for Mr. Morris.

The five member panel of the Ontario Court of Appeal came to the following conclusions, at par. 13:

• The trial judge's task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;

• Social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;

• The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender's degree of personal responsibility, an offender's experience with anti-Black racism does not impact on the seriousness or gravity of the offence;

• Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;

• Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;

• The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.

b) R. v. Kawal, supra. The Crown concedes the circumstances of this case are significantly more serious and egregious than the facts in Mr. Williams’ case. He cites this decision because of the observations by Justice Harris respecting the proliferation and prevalence of handguns and firearms in the Greater Toronto Area, see paras. 11 to 13 and para. 16:

11 Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, "Gun-related crime poses grave danger to Canadians."…The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

12 Harming a person without a weapon is not necessarily easy. But with a firearm, very little is needed. A slight degree of pressure applied to the trigger, a causal aim, and someone will likely be killed or severely injured. It is all too easy. We have come to the point where no intelligence or much of anything else is needed to kill or wreak grievous harm on another person. Malevolence is all that is required. Unfortunately, this is not always in short supply. That is a daunting prospect.

13 The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety….Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing…It is even more so now what with record murder numbers in Toronto and the continuing increase of gun crimes and violence…

16 A person does not stumble upon an illegal handgun. There is a process of purchasing from a trafficker and secreting the handgun to avoid detection and prosecution. There is a high degree of deliberation and contemplation involved. In order to dissuade those who would possess and use firearms, there is a duty to ensure that there is no mistake about the not-give-an-inch opposition and contempt for all that handguns represent. The utilitarian philosophy animating general deterrence is pertinent. The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.

[37] The caselaw provided by both counsel and the other decisions I have made reference to all demonstrates that sentencing is a very individualized process and there is not one size fits all or a uniform sentence for all offenders who commit a particular crime.

[38] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 explained:

…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.

[39] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses point, ignores the fundamental principle of proportionality... Individual circumstances matter.

[40] In R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.” (See also R. v. Lacasse, supra, at paras. 57-58, 60-61.)

[41] In fact, since R. v. M. (C.A.), supra, at para. 92, the Supreme Court has made it clear that

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. [Emphasis added]

[42] Regardless of which cases I am directed to involving the possession of a restricted or prohibited weapon, they all have a consistent theme, regardless of the level of court: “firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons,” R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (SCJ, Kelly) at para. 32. This principle is well expressed by Trafford J. in R. v. Villella, 2006 CanLII 39324 (ON SC), [2006] O.J. No. 4690 (S.C.J.) at para. 46:

...[T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

[43] The Supreme Court in Nur clearly indicated that circumstances which fall within the “true crime” end of the s. 95 spectrum of offences will still attract exemplary sentences that emphasize deterrence and denunciation and protection of the public, regardless of the constitutionality of the three year mandatory minimum sentence. This position has been maintained by the Ontario Court of Appeal prior to the introduction of the mandatory minimum sentences, see Marshall, supra, at paras. 43-46, and after the mandatory minimum sentence was struck down, R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) and R. Charles, 2013 ONCA 681, [2013] O.J. No. 5115 (C.A.).

[44] Both the Ontario Court of Appeal and the Supreme Court of Canada in R. v. Nur, 2013 ONCA 677, aff’d 2015 SCC 15, struck down the 3 year mandatory minimum sentence for a first offence, as it would amount to “cruel and unusual punishment if it was applied to an offender at the regulatory end of the spectrum.” As reflected by McLachlin C.J. in R. v. Nur, supra, at para. 82:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade.... [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code. [Emphasis added]

[45] However, all of the courts hearing the circumstances in the Nur case affirmed that conduct at the criminal end of the spectrum will attract exemplary sentences that emphasize deterrence and denunciation. The facts in R. v. Nur, supra, involved a number of young men gathering outside a community centre. One of the young men went into the community centre because he feared for his safety. He spoke to someone inside the centre who observed someone outside the centre who was hiding their identity and as a result the centre was locked down and 911 was called. Mr. Nur was one of the young men outside the centre, he had been dropped off by his brother but did not enter the centre and remained outside by one of the two entrances. The evidence did not disclose how long Mr. Nur was outside the centre but it appeared it was prior to the “lock down.” At some point Mr. Nur came into possession of a gun but it was unclear when and for how long he had it. When the police arrived the young men dispersed and Mr. Nur attempted to flee. When his attempt to flee appeared to be failing, he tried to dispose of a loaded semi-automatic handgun with an oversize magazine. Justice Code found the appropriate sentence was one of 40 months and dismissed the constitutional challenge to the mandatory minimum 3 year sentence. Despite finding the mandatory minimum 3 year sentence was unconstitutional, both the OCA and SCC upheld Justice Code’s 40 month sentence for Mr. Nur’s conduct, despite his being a youthful first offender (19 years of age), who pleaded guilty, had strong family support and rehabilitative potential. Justice Doherty, at para. 206, explained the Court’s decision did not:

…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. [Emphasis added]

Justice McLachlin endorsed this conclusion at para. 120, of the majority’s judgment in the Supreme Court’s decision in Nur.

[46] Section 95(1) offences in most instances are inherently serious, as reflected by Molloy J.'s analysis, in R. v. Ferrigon (2007), 2007 CanLII 16828 (ON SC), 73 W.C.B. (2d) 621 at para. 25 (Ont. S.C.J.), as to why deterrence and denunciation are the predominant sentencing values in these cases:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled - a way of life that respects the rule of law to ensure the peace and safety of those who live here.

These observations are equally applicable today and to the facts of this case.

Sentence Imposed

[47] Ms. Dresser argued a sentencing judge can and should take judicial notice of the existence of overt and systemic anti-Black racism in Canadian society and the criminal justice system in particular. This was accepted by the Ontario Court of Appeal in R. v. Morris, supra, at para. 42 and the Court indicated that the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario,” bears reading by those called upon to prosecute, defend and sentence Black offenders, particularly young Black offenders.

[48] This was recognized by the Ontario Court of Appeal in R. v. Morris, supra, at para. 56,

…A sentencing judge must impose a sentence tailored to the individual offender and the specific offence. While evidence relating to the impact of anti-Black racism on an offender will sometimes be an important consideration on sentencing, the trial judge's task is not primarily aimed at holding the criminal justice system accountable for systemic failures. Rather, the sentencing judge must determine a fit sentence governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 ("Nur (SCC)"), at para. 43, aff'g 2013 ONCA 677, 117 O.R. (3d) 401 ("Nur (ONCA)"); R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 39-45; Hamilton, at paras. 2, 87; see also Michael C. Plaxton, "Nagging Doubts About the Use of Race (and Racism) in Sentencing" (2003) 8 C.R. (6th) 299, at pp. 306-7.

[49] As I discussed earlier[^1], “proportionality is the fundamental and overarching principle of sentencing. The other sentencing principles set out in s. 718.2 must be taken into account and blended in a manner which produces a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence which does not comply with the proportionality principle is an unfit sentence,” R. v. Morris, supra, at para. 61. The gravity of an offence takes into account the inherent or normative wrongfulness of the conduct and the harm posed or caused by the conduct (See R. v. Morris, supra, para. 68 and R. v. Friesen, 2020 SCC 9, at pars. 75-76). Dealing specifically with gun crimes the Court of Appeal in R. v. Morris, at para. 68 held:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15.

[50] The gravity or seriousness of a crime relates to assessing and weighing the other objectives of sentencing identified in s. 718. The more serious the crime, the greater the need to denounce such unlawful conduct and deter the offender and others. As I indicated earlier, Courts have long recognized the gravity of certain offences requiring deterrence and denunciation to be the paramount sentencing principles. Gun crimes involving the illegal possession of loaded handguns in public places fall directly into that category. McLachlin, C.J., in Nur, at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95.[^2] The gravity or seriousness of this type of offence still requires the Court to firmly denounce serious gun crimes through the punishment imposed.

[51] The Court in Morris was clear however, that the gravity or seriousness of an offence, in this case possession of a loaded firearm, was not diminished by evidence which sheds light on why an offender chose to commit those crimes, for example an offender’s life experiences which include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system. This type of evidence is relevant to an offender’s moral responsibility for his actions but not to the seriousness of the crimes themselves. This evidence can provide a basis upon which a trial judge concludes that the fundamental purpose in sentencing outlined in s. 718 is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to specific deterrence of the offender and places greater weight on the rehabilitation of the offender through a sentence addressing the social disadvantages caused to the offender by such factors as systemic racism.

[52] The Court in Morris held the concept of causation, as used in substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing. “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…” In Morris the Court identified “the social context evidence may offer an explanation for the commission of the offence which mitigates the offender’s personal responsibility and culpability for the offence,” at paras. 99 to 101.

99 …Mr. Morris's strong and ever-present fear of many people around him in his community, including the police, was offered as an explanation for his possession of a loaded gun. The information in both reports supported the inference that Mr. Morris's fears were real, justified and existed, in part, as a result of systemic racism that played a role in shaping his perception of his community, his relationship with others in the community, and his relationship with the police.

100 It was open to the trial judge to find that the evidence of anti-Black racism was connected to, or played a role in, Mr. Morris's strong fear for his personal safety in the community. That state of mind offered a mitigating explanation for Mr. Morris's possession of the loaded, concealed handgun. Looked at in this way, evidence of anti-Black racism, which played a role in generating the fear that helps explain why Mr. Morris had a loaded gun, is akin, for the purposes of sentencing, to evidence that Mr. Morris had been terrorized by somebody in the community and had armed himself because he genuinely feared that person. In either scenario, the offender offers an explanation for possessing a loaded gun, which, to some extent, ameliorates the offender's moral responsibility for that choice: see R. v. Boussoulas, 2015 ONSC 1536, at paras. 6-7, 20, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44.

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.

[53] The only report prepared for Mr. Williams’ sentencing hearing was the presentence report, marked as Exhibit 1. It disclosed that Mr. Williams’ father was not very involved in his life, as his parents separated after living together for about a year. Mr. Williams only saw his father infrequently and only spoke to him by phone now and again. His father passed away in March 2021, just before Mr. Williams was re-incarcerated because of breaching his house arrest release order. Mr. Williams reported he is close with his mother and his four siblings, who he describes as being very supportive. His mother works in two jobs to be able to support her family. His oldest sister is 16 years older and Mr. Williams lived with her and her family when he was released from custody in March 2020.

[54] Ms. Dresser pointed to the fact that because Mr. Williams’ mother worked two jobs Jayden Williams perhaps did not have the kind supervision and direction needed by a young person as he was growing up. She indicated he was expelled from school because of marijuana use and made reference to his having to attend an Alternative School and she suggested it was probable he met negative influences there, which she said was a concern expressed by the probation officer and his teacher. Ms. Dresser made reference to many of her clients attending Alternative Schools, as support for her submissions in this regard. However, according to Mr. Williams he was expelled in Grade 10 when he was attending Notre Dame, which he started attending that year because it was closer to his home, he was expelled because of marijuana. He went to the Father Don McLennan Alternate School for the remainder of his first semester and because he behaved himself, worked hard and did well, he was permitted to complete his second semester of Grade 10 back at Notre Dame. According to his principal at Pickering High School, Jayden completed a program called, “Return Ticket Program,” which resulted in him returning to regular school. He then returned to Pickering High School where he completed Grade 11 and part of Grade 12 until his arrest on the firearms charges in January 2020. It was after his release on bail that he attended another Alternative School for 4 months and completed the remainder of Grade 12.

[55] Based on the information provided to me about Mr. Williams growing up in a close, loving and supportive family, which included his mother and four siblings; the fact he was valued in his family by its members; he played an active part in the family’s activities; when he was able he would contribute to his family’s expenses, paying for his own cell phone and his younger sister’s cell phone, as well as the Cable bill; the fact his mother worked as a nurse at two different jobs to provide financial support to her family; everyone in the family contributed and Jayden took on the household chores he was expected to do; although I was not advised about the specifics of his employment, he worked at the Superstore and later at a grocery distribution facility, he also helped his family at nights in a cleaning business; it is my view all of this demonstrates Jayden Williams was a responsible and respectful young person, who was actively involved and a contributing member within his family.

[56] Although I do not know the details of his being expelled for marijuana, it is clear he worked hard at the Alternative School he attended and was readmitted to Notre Dame to complete the last semester of Grade 10. This was not a young person who was negatively influenced by others attending the Alternative School he attended. His principal at Pickering High indicated Mr. Williams smartened up and got back on track. He then transferred back to Pickering High School where he completed Grade 11 and the first semester of Grade 12 when he was arrested on the gun charges. His principal described the reason he was not allowed to attend Pickering High after his arrest was because he was charged with serious gun charges and he had become an adult. His mother described him as a “B” student and that he was bilingual because he attended French immersion. After he was released on house arrest bail he completed his final semester of Grade 12 and graduated high school by attending an Alternative School. Again, I received no information other than a young person who complied with his bail conditions and completed his classes in 4 months and graduated. All of these accomplishments demonstrate Mr. Williams’ positive potential for rehabilitation once he completes any jail sentence I impose.

[57] No explanation was provided by the probation officer in the PSR, as to her concern about Mr. Williams’ companions and I do not place much weight on it. Further, his teacher’s comment, “I am not pleased with his behaviour as I feel he is being led by his peers,” reflects her positive interactions with Mr. Williams as a student in Grade 11 math and the disconnect between that and his possession of a loaded handgun. I share her concern but I do not know why Mr. Williams decided to carry and conceal a loaded handgun when he went out to dinner. Mr. Williams does not have any history of involvement in criminal activities. Ms. Dresser seemed to place blame on the young offender, J.W., as being a negative influence on Mr. Williams because he met J.W. at a skate park. I was not provided any information concerning J.W.’s background, whether he was also a youthful first offender or whether he had a youth record. What I do know is Mr. Williams, made a deliberate decision to go out in public, into the community, first in a restaurant and later in a car and ultimately into a police station with a loaded handgun hidden under his winter jacket in a satchel. This was not a mistake or an accident or something he did not intend to do.

[58] As I have indicated ,I do not know why Mr. Williams was carrying, on his person, a loaded handgun he was hiding or what he intended to do with this loaded handgun. Why would two friends, J.W. and Mr. Williams, both decide it was necessary to each carry and secret a loaded firearm on their person when they were going out for dinner to celebrate Mr. Williams’ birthday that had occurred 10 days before? No explanation was offered for their possession of the loaded handguns secreted in a fanny pack by J.W. and a “Puma” satchel, which hidden under a black winter puffy jacket by Mr. Williams. I do not know how long Mr. Williams had possession of this loaded handgun or where or how he obtained it. I cannot speculate about these issues.

[59] Ms. Dresser advised me during submissions that she did not have any empirical evidence to present to the court specifically as to any life experiences of Jayden Williams respecting instances of anti-Black racism. This issue also was not addressed in Mr. Williams’ affidavit that was filed as part of Exhibit 2. I have read the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto,[^3] which provides a detailed history and analysis of systemic anti-Black racism and discrimination in Canada and in particular in the Toronto area. I agree with Justice Nakatsuru’s view[^4] and the Court of Appeal’s view[^5] as to the value of this report for lawyers and judges involved in the criminal justice system. I do not doubt that Mr. Williams has experienced this throughout his young life.

[60] Mr. Williams’ comments to the probation officer and in his affidavit do express what he says is remorse and indicates a recognition of the danger possessing this loaded handgun created for himself, members of the community and the police officers who were interacting with him. I can understand his reticence at disclosing to the police officers at the scene that he had a loaded handgun concealed under his jacket in a satchel. However, his comments about his involvement in the offence, saying he should have stayed home that night, in my view raise a concern of the need for the imposition of a sentence that will specifically deter him from engaging in similar behaviour in the future. Based on the information provided through the PSR and the other material provided by Ms. Dresser, Mr. Williams lack of any prior involvement with the police or a criminal record I am of the view Mr. Williams possession of this loaded gun was out of character. However, it is difficult to understand how a young person with such a close and supportive family would want to possess and conceal a loaded handgun and then take it with them into a public place.

[61] Ms. Dresser argued that because there was no evidence Mr. Williams’ possession of the handgun was connected to other criminal activity, such as drug trafficking, or gang activity, or violence outside of that inherent in carrying a loaded gun, Mr. Williams’ sentence should be two years imprisonment, which would place it at the low end of the “true crime” spectrum. She cited R. v. Marsan, supra; R. v. Boussoulas, 2015 ONSC 1536, [2015] O.J. No. 1104 (SCJ, Campbell) and R. v. Shomonov, 2016 ONSC 4015 (McCombs), as support for this position. As I have indicated, the imposition of a proportionate sentence is very much a fact-driven exercise and a highly individualized exercise. In my view the distinction between the three cases above and the facts in Mr. Williams’ case is that Mr. Williams had the loaded handgun hidden on his person in a restaurant, while he was a passenger in a motor vehicle and in a police station after he had been arrested for possession of another loaded revolver discovered on the person of another passenger in the same motor vehicle. The handguns in the three cases cited were not found hidden on the person of the offenders while out in public rather in two cases they were found in an apartment and in the third case the handgun was found in the trunk of a motor vehicle in a satchel. It is my view the factual circumstances in Mr. Williams’ case are much more serious and require a low penitentiary sentence.

[62] Mr. Williams was entitled to have a trial respecting the charges he faced and he is not required to accept my findings respecting the evidence, however, he is not entitled to claim the mitigating benefit of a guilty plea and acceptance of responsibility. It is clear from the caselaw; however, lack of remorse is not an aggravating circumstance to consider on sentencing and I do not consider it as such, (see R. v. Giroux (2006), 2006 CanLII 10736 (ON CA), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68; R. v. Valentini (1999), 1999 CanLII 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 80-85).

[63] Ms. Dresser submitted that Mr. Williams expressed remorse and regret for his action of possessing a loaded handgun after I found him guilty of the gun offences. Mr. Williams is also not required to provide an explanation for how or why he had possession of a loaded firearm or why he decided to bring it with him hidden on his person out in public. The difficulty is I am not permitted to speculate about what the answers might be to those pertinent, material questions. In Morris the defence provided a detailed personal social context report about Mr. Morris’s upbringing and life experiences that provided important context for the Expert Report, which was also filed. Evidence and information was presented to Justice Nakatsuru in Morris that provided an explanation for Mr. Morris’ possession of a handgun, why he brought the loaded handgun out into the public such that there was a “connection between the overt and systemic racism identified in the community and the circumstances or events that [were] said to explain or mitigate the criminal conduct in issue” (see Morris, at para. 97). This was relevant to the trial judge’s assessment of Mr. Morris’ moral culpability for the crime. “The social context evidence may offer an explanation for the commission of the offence which mitigates the offender's personal responsibility and culpability for the offence” (see Morris, at para. 99) This type of evidence and information is missing in this case and as the Court of Appeal identified, “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.” As a result, I do not know whether there is any connection between overt and systemic ant-Black racism experienced by Mr. Williams and his reasons or explanation of possessing a loaded handgun under his winter jacket, such that his moral culpability or blameworthiness might be reduced to some extent by what the Court of Appeal termed a “limited mitigating factor.”

[64] An added feature in Mr. Williams’ case is his flight from police on April 8, 2021, at 9:51 p.m., when a police officer attempted to stop him because he appeared to be travelling at a speed over the speed limit. As soon as the officer activated his roof lights Mr. Williams attempted to flee. It is not difficult to understand the reason why he did this as he knew he was not to be outside his residence by himself unless he was coming home from work or he was in the company of one of his sureties, which he was not. This was a serious breach of the most important condition of his release order. The Crown is seeking a five month consecutive sentence for this conduct. Again, I do not know why Mr. Williams was breaching his house arrest condition as no explanation was provided. What made this incident more aggravating was the fact Mr. Williams did not simply pull over to face the consequences of being outside his residence without a surety, he compounded the breach by attempting to flee from the police creating a potential risk to members of the community. When his vehicle was stopped he exited it, initially trying to run away on foot, however, better judgment prevailed and he returned to his vehicle where he was arrested. As I expressed to counsel during submissions, I am of the view that the Crown’s position is high, however, this is a serious aggravating circumstance in terms of determining a proportionate sentence, taking into account the principle of totality, as well as the fact Mr. Williams is a youthful first offender. This circumstance in my view is also relevant to my consideration of what sentence is necessary to specifically deter Mr. Williams in the future, although I would think Mr. Williams has come to recognize the serious consequence occasioned by this breach as a result of the 10 months he has been in pre-trial custody.

[65] A final consideration as a mitigating circumstance in this case is the collateral consequence of the harsh conditions of repeated lockdowns and COVID-19 restrictions experienced by Mr. Williams during his period of pre-sentence custody.

[66] In R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.), the Court of Appeal provided that in appropriate circumstances particularly harsh pre-sentence conditions can provide mitigation apart and beyond the 1.5 to 1 credit provided for in s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R.575. The decision to award additional credit for harsh conditions is discretionary and such credit serves to ensure that the sentence imposed is proportionate and individualized. The cases from the Court of Appeal since Duncan have been clear that there is no mathematical formula that must apply to determine what the amount of credit should be, R. v. Brown, [2020] O.J. No. 1116 (C.A.), at para. 13; R. v. Rajmoolie, [2020] O.J. No. 5891 (C.A.), at paras. 14-16. Recently, the Court of Appeal further clarified how what has been termed “Duncan” credit should be determined in R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757(C.A.), at paras. 52-53:

52 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. [Emphasis added]

53 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 added]

[67] Ms. Dresser has filed as part of Exhibit 2 a letter from Barbara Konkle, Manager, Security & Investigations, SOLGEN, CECC. The institutions records revealed 123 days of lockdown (partial days:18 and full days:105) for both periods of presentence custody. Mr. Williams in his affidavit indicated that he did not keep records of the lockdowns during the first period of pre-sentence custody of 58 days [CECC’s records showed 10 days of lockdown (partial day:1 and full days:9)], however, he did keep his own records of lockdowns during the second period of presentence custody from April 8, 2021, and the present, which he recorded as 152 days (partial:34 and full:118). The Crown did not seek to cross-examine Mr. Williams on his affidavit and took no position as to the total number of lockdown days. I have no doubt there have been further lockdowns (both partial and full) between December 21, 2021, and February 10, 2022. It should be noted that the CECC records do not reflect any of the lockdowns were in any way connected to misconduct on the part of Mr. Williams during the time he was in pre-sentence custody.

[68] Prior to the COVID-19 pandemic the various detention centres in the GTA were experiencing numerous lockdowns, both for partial days and full days. Since March 2020, the number of lockdowns has significantly increased due to staff shortages, as well as quarantines in the custodial facilities caused by outbreaks of the COVID-19 pandemic. I accept Mr. Williams’ characterization in his affidavit of the impact of these measures, which have caused him considerable hardship where he has not been allowed out of his cell for days, with no showers, meals are taken in his cell, no fresh air, no access to family or restricted access to his lawyer, only getting a change of clothes every three weeks instead of twice weekly, all of which caused him stress, to be depressed and fearful. Mr. Williams advised he contracted COVID-19 on two occasions, which led to increased isolation. The first time Mr. Williams was positive was when he was tested when he was first brought to CECC after breaching his bail in April 2021. He advised the CECC doctor he did not know where he had contacted COVID-19 but it could have been at his work. The second occasion he tested positive was on June 5, 2021. This resulted in his being quarantined for 14 days. He could only have contracted COVID-19 as a result of being in custody at CECC. I was advised in court today by Ms. Dresser that Mr. Williams contracted COVID a second time while in custody at CECC in January 2022. I take this into account as well. Mr. Williams contracting COVID-19 from his employment as well as during his detention at CECC after breaching his release demonstrates how this highly contagious virus has impacted our community.

[69] The last 10 months of Mr. Williams pre-sentence custody was during the COVID-19 pandemic and the Central East Correctional Center has experienced at least two serious outbreaks where offenders were locked down and not permitted to be brought to court for their cases. What is particularly troubling about the number of lockdowns is that they total almost half of the pre-sentence custody served by Mr. Williams. Consequently, I find that Mr. Williams has established that the time he has spent in pre-sentence custody has been exceptionally difficult.

[70] In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, Moldaver J. confirmed, at para. 47, that “collateral consequences” include, “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for the offence, that impacts the offender.” Applying this principle from Suter, the Ontario Court of Appeal in R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (C.A.), at para. 9, held that the impact of COVID-19 can be viewed as a collateral consequence for sentencing purposes. Indeed, at para. 8, the Court held that courts can take judicial notice of the fact that the COVID-19 pandemic is impacting all Canadians, the current state of medical knowledge of the virus, its mode of transmission and the recommended methods to avoid its transmission, all of which have significant consequences for those in custodial facilities.

[71] In Marshall, at para. 50, the Court of Appeal specifically identified that the “very restrictive conditions” brought on by COVID-19 for those in custody are the kinds of circumstances that amount to “exceptionally punitive” conditions, warranting further consideration in assessing Duncan credit. However, as reiterated in Suter, at para. 56, and Morgan, at para 10, collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence and the moral blameworthiness of the offender.

[72] It is my view that Mr. Williams, as a youthful first offender, is entitled to serious consideration for the harsh pre-sentence conditions of almost 50 percent of his days in pre-sentence custody, as well as the additional impact of COVID-19 on his time in custody, particularly having regard to the fact he tested positive on three occasions, the first when he first arrived at CECC after breaching his release and the second and third occasions were while he was detained at CECC awaiting his trial. As I have already indicated any mitigation given for the hardships is discretionary and there is no mathematical formula. I must balance the need for a fit sentence that meets the relevant sentencing principles with the personal circumstances of Mr. Williams and the hardships he has experienced as a result of the lockdowns and the COVID-19 restrictions. In accordance with Marshall, I have resisted deducting any specific amount of “Duncan” credit. However, I do consider the lockdowns and COVID-19 restrictions to be a significant mitigating factor without which Mr. Williams’ sentence would have been three years less presentence custody credit. The Court of Appeal in Marshall made it clear that a Duncan credit is properly shown as a mitigating factor, reducing the otherwise appropriate sentence and not as credit for time served. To reduce Mr. Williams’ sentence below 30 months in my view would render the sentence disproportionate, as it would not properly reflect the seriousness of the offences committed.

[73] Therefore, considering all of the mitigating and aggravating circumstances in this case, which I have outlined above, it is my view a proportionate sentence is 30 months imprisonment less presentence custody. The custodial sentence will be followed by three years of probation with conditions and terms to be discussed with counsel, as well as a DNA order and a s. 109 order for 10 years.

[74] Mr. Williams has been in pre-sentence custody over two periods of time: January 28, 2020 to March 25, 2020, which is 58 days and April 8, 2021 to February 10, 2022 is 309 days for a total of 367 days in presentence custody. Applying the 1.5 to 1 credit, as provided for in s. 719 (3.1), the credit for 367 pre-sentence days is 551.5 days. A 30 month sentence is the equivalent of 912.5 days, which leaves 361 days for Mr. Williams to serve.

[75] Therefore on the s. 95(1) charge the sentence is 30 months or 912.5 days less pre-sentence custody of 367 days, which provides credit on a 1.5 to 1 basis of 551.5 days. This leaves 361 days remaining for Mr. Williams to serve in a provincial reformatory. The sentence respecting the s. 94(1) charge is 30 months concurrent. As I indicated previously, I view the flight from police charge, pursuant to s. 320.17, to be an aggravating circumstance to be considered in determining a proportionate sentence taking into account the sentencing principles of totality and I have imposed a 60 day custodial sentence concurrent to the sentence imposed on the s. 95(1) charge. There will be a one (1) year driving prohibition, which will run concurrently with the Highway Traffic Act license suspension of 1 year.

[76] The victim fine surcharge is waived having regard to the remaining period of custody to be served by Mr. Williams.

[77] Mr. Williams will be placed on probation for 3 years after he is released from custody. This probation will be subject to the statutory conditions the most important being that he must “keep the peace and be of good behaviour.” This will be a reporting probation, you will report within 3 working days of your release from custody in person or by telephone to a probation officer and then report afterwards as directed. Your reporting condition will end after you have completed your counselling and community service hours. You will reside at an address approved of by your probation officer and not change that address without first obtaining the consent of your probation officer. You are not to have any contact directly or indirectly with J.W., the youth in the Audi A4 who was also in possession of a loaded prohibited firearm. You will attend for counselling dealing with an anti-criminal thinking program, such as that offered by the John Howard Society or any other program deemed appropriate by the probation officer. You are not to possess any weapons as defined by the Criminal Code.

[78] You will also perform 50 hours of community service work at a rate determined by your probation but it must be completed within 18 months. I am imposing a period of community service in your probation as it is my view performing community service for those in your community will assist you in gaining a better understanding and appreciation for contributing positively to others. I believe for some unexplained reason you lost sight of the positive values instilled in you by your mom and my hope is for you to embrace those values again.

[79] I am ordering you to provide a sample of your D.N.A. pursuant to s. 487.04, as this is a “secondary-designated” offence. You will provide this sample by February 24, 2022 at 5 p.m.

[80] I am also imposing a weapon’s prohibition order pursuant to s. 109(1)(b) as well as a forfeiture order respecting the firearm seized by the police.

Released: February 10, 2022

Signed: Justice Peter C. West

[^1]: See paras. 29-30 supra.

[^2]: In R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (C.A.), at para. 24: “…this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender.”

[^3]: Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario, dated September 13, 2018, by Akwasi Owusu-Bempah, PhD, Assistant Professor, Department of Sociology, University of Toronto; Camisha Sibblis RSW, MSW, PhD(c),Faculty of Social Work, York University and Dr. Carl James, PhD, Professor, Jean Augustine Chair in Education, Community and Diaspora at York University, Fellow of the Royal Society of Canada.

[^4]: See R. v. Morris, [2018] O.J. No. [2018] O.J. No. 4631, at paras. 19-22.

[^5]: See R, v. Morris, 2021 ONCA 680, [2021] O.J. No. 5108, at paras. 76- 81; 82-87; 102-107.