Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 05 18 COURT FILE No.: Brampton 3111 998 19 30847 and 40250

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DWIGHT BANTON

Before: Justice G.P. Renwick

Heard on: 18 May 2022 Reasons for Sentence Released on: 18 May 2022

Counsel: O. Melnik................................... counsel for the Public Prosecution Service of Canada T. Hicks............................................................. counsel for the Defendant Dwight Banton

Reasons for Sentence

RENWICK J.:

Introduction

[1] On the first day of his trial, prior to today, the Defendant pleaded guilty before me to possession of a handgun with readily accessible ammunition (s. 95 of the Criminal Code), breach of a firearms prohibition order (s. 117.01 of the Criminal Code), and possession of a Schedule I substance (N-methyl-3, 4-methylenedioxyamphetamine, “MDMA”) for the purpose of trafficking (s. 5(2) of the Controlled Drugs and Substances Act – “CDSA”). The prosecutor proceeded by indictment.

[2] The matter was adjourned for sentencing submissions and materials. Today, counsel proposed a joint submission for sentence: a global sentence of three years of imprisonment, less pre-trial custody credit (“PTCC”) and ancillary orders (DNA, s.109 of the Criminal Code).

[3] The firearms offences carry a maximum sentence of 10 years imprisonment, while the drug count carries the potential of life imprisonment with a one-year mandatory minimum sentence (see s. 5(3)(a)(i)(C) and (D) of the Controlled Drugs and Substances Act apply here).

[4] The prosecutor accepts that the Defendant had only recently come into possession of the firearm and ammunition (notwithstanding that these items were found in the backpack that also contained the Defendant’s drugs), because the Defendant was temporarily holding the firearm and ammunition for a friend.

[5] The Defendant is an admitted drug-dealer at the ounce level. He has been convicted of possessing drugs in 2005, 2011, and twice in 2016. His criminal record is littered with driving, property, and non-compliance offences.

[6] The parties urge me to accept the joint submission given that the Defendant has recently completed welding training and plans to leave Ontario once his sentence ends.

Pre-Trial Custody Credit

[7] Both parties agreed that PTCC should be enhanced for this Defendant given his time in pre-trial detention during a global pandemic, the lock-downs he experienced at the jail, and the significant bail restrictions he endured, including house arrest and GPS monitoring. Exhibit #1 details the calculations of the parties. The Defendant was held in jail for almost one year before being released on a restrictive bail for almost two years. The parties have agreed that the Defendant should receive 23 months PTCC for the period of 31 months that have elapsed since his arrest.

[8] While I highly doubt that I could have been convinced to agree to have enhanced the PTCC to arrive at a similar calculation, the Supreme Court of Canada has made it clear that I should not disturb a joint proposal unless it is so unhinged from the circumstances of the offence and the offender that its acceptance would inexorably lead a reasonable, informed person, aware of the circumstances and the importance of promoting certainty in resolutions, to conclude that the proper functioning of the justice system had been forsaken. [1]

[9] Reluctantly, and only by virtue of the importance of stare decisis, I accept the suggestion that the Defendant should receive PTCC of 23 months imprisonment.

The Joint Sentencing Position

[10] The prosecutor and the Defendant jointly submitted that a net global sentence of three years imprisonment is appropriate for these offences. A s. 109 order prohibiting the Defendant from possessing weapons for life and an order to take a sample of the Defendant’s deoxyribonucleic acid (“DNA”) were also sought.

[11] The parties suggested that a sentence of 30 months imprisonment is appropriate for the s. 95 firearm offence and an additional 6 months should apply for the breach of a weapons prohibition offence. The parties submitted that the drug offence should receive a six-month concurrent sentence.

Discussion

Mitigating Factors

[12] The following factors are mitigating:

i. The Defendant pleaded guilty and he is remorseful; ii. The Defendant has begun to rehabilitate himself by completing a welding course; iii. The Defendant has the support of his common-law partner; iv. The Defendant has a plan to follow his common-law partner to Alberta to begin a new life and seek lawful employment while raising his children; and v. The Defendant wants to lead a pro-social life.

These factors were not contested by the prosecution.

Aggravating Factors

[13] The following factors are aggravating:

i. The Defendant has an unenviable criminal record – 39 convictions from 2004 to 2016; ii. The Defendant is not licensed to possess a firearm; this is a true-crime offence, not simply a regulatory offence (expired license or possession in an unauthorized place, for instance); iii. The firearm was abandoned with 13 rounds of ammunition on a public road; iv. The firearm and ammunition were located with drugs; v. The Defendant was prohibited from possessing firearms; vi. The firearm was not properly or safely stored as required by s. 7 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations; SOR/98-209, made under the Firearms Act, (S.C. 1995, c. 39); vii. The firearm is a semi-automatic handgun. Once a round of ammunition is chambered, [2] it can be discharged with a single pull of the trigger. The diminutive size, semi-automatic mechanism, [3] and one-handed functionality make this weapon extremely dangerous; viii. The Defendant was a prohibited driver (25 November 2016 for three years); and ix. The Defendant was a drug-dealer for profit, rather than because he was addicted to drugs.

Neutral Factors

[14] The following are neither aggravating nor mitigating and have not factored into the calculus of an appropriate sentence in this case:

i. The Defendant does not usually possess a firearm while operating as a drug-dealer; ii. There is no suggestion that the Defendant had ever fired the firearm he possessed; and iii. There were no injuries suffered by the Defendant or the police who conducted the investigation.

Circumstances of the Defendant

[15] The Defendant is not a young man. Until now, he has led an anti-social life. He has profited from the misery of others. He has contributed to untold loss and suffering by the commodification of dependence.

[16] The Defendant is a Black Canadian. Although I have not heard from him about his racial background, I must acknowledge that being Black in Canada brings unquantifiable challenges due to our shared history of slavery, colonialism, and anti-Black racism. There is no doubt that this Defendant has experienced the sequelae of racism, the only question is to what extent.

[17] The Defendant has, with the support of his common-law partner, completed a welding course so that he may become lawfully employed and participate fully in our community. This is to his credit and benefit.

Sentencing Principles

[18] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[19] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [4]

[20] In R. v. Hamilton and Mason, 2004 ONCA 5549, Doherty J.A. of the Ontario Court of Appeal stated that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [5]

[21] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest, 1996 ONCA 1381:

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. [6]

[22] Section 718.1 of the Criminal Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [7]

[23] In the circumstances of this case, where both parties submit that a penitentiary sentence is warranted, it is trite to note that s. 718.2 of the Criminal Code provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances” and “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.” Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.

[24] Our Supreme Court has instructed that section 718 of the Criminal Code requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [8] Although the rehabilitation of the Defendant is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider, especially in light of the Defendant’s efforts to rehabilitate himself while on bail.

Sentencing Range

[25] The parties rely on limited jurisprudence to justify the sentence proposed. This is not unreasonable. I find that three years imprisonment in a penitentiary is generally appropriate for first-time firearm offenders.

[26] Given the Defendant’s record, but for the joint submission, I would have been inclined to imprison the Defendant for 4 years for the gun offences alone.

Conclusion

[27] The Defendant has been found guilty of three offences after pleading guilty. Two relate to the firearm and ammunition found proximate to the Defendant’s drugs.

[28] Again, were it not for the joint proposal that includes the recent possession of the firearm with readily accessible ammunition, I would have been tempted to find that the Defendant is an armed drug-dealer deserving of a much longer sentence of imprisonment.

[29] I have decided that the proposed sentence, while on the low end, is not demonstrably unfit for this offender in these circumstances.

[30] I have concluded that the almost-loaded firearm merits a 36-month penitentiary sentence. The breach of a prohibition order merits a 6-month concurrent sentence in light of the brief period of possession of the firearm and ammunition. The drug offence merits a 12-month concurrent sentence in light of totality, restraint, and respect for the joint submission. When the PTCC of 23 months is subtracted from the three-year sentence, 13 months of imprisonment remain.

[31] The Defendant is hereby sentenced to 13 further months of imprisonment in a provincial reformatory for the s. 95 offence. He is sentenced to 6 months of imprisonment, to be served concurrently, for the s. 117.01 offence. He is sentenced to 12 months concurrent for the CDSA offence.

[32] I am also granting the following ancillary Orders:

i. An Order pursuant to s.109(2) of the Criminal Code prohibiting the Defendant from possessing any firearm or ammunition for a period of 10 years and for a period of life for any prohibited or restricted firearm, or ammunition, or prohibited weapon or device; and ii. An Order pursuant to s. 487.051(3)(b) of the Criminal Code (s. 95 is an offence for which the maximum punishment is more than five years, making this a secondary designated offence) for the taking of a sample of the Defendant’s DNA in circumstances that are hygienic and respectful of his privacy and bodily integrity, by a person qualified to take such samples. This sample shall be taken while the Defendant is in custody.

[33] I wish Dwight Banton every success in his rehabilitation, for his sake and the sake of our community.

Released: May 18, 2022 Justice G. Paul Renwick

Footnotes

[1] R. v. Anthony-Cook, 2016 SCC 43 at para. 34.

[2] For semi-automatic handguns, in order to “chamber” a round (the mechanical movement of ammunition from the storage magazine into the firing chamber of the weapon), the user has to manually move the slide on top of the weapon less than 76mm (less than the entire length of the barrel) to the rear of its resting position and allow the internal spring mechanism to return the slide to its original position.

[3] A semi-automatic firearm reloads available rounds of ammunition from the magazine (after the initial round of ammunition has been moved into the firing chamber and discharged) with successive trigger pulls after each firing. In other words, the initial chambering of ammunition need not be repeated as the mechanism automatically reloads live rounds and discharges spent rounds with each successive trigger pull.

[4] R. v. Hamilton and Mason, 2004 ONCA 5549, [2004] O.J. No. 3252 (C.A.) at para. 102.

[5] Hamilton, supra, at paras. 90-91.

[6] R. v. Priest, 1996 ONCA 1381, [1996] O.J. No. 3369 (C.A.) at para. 26, as quoted in Hamilton, supra, at para. 92.

[7] See subsection 718.2(b) of the Criminal Code.

[8] R. v. Gladue, 1999 SCC 679, [1999] S.C.J. No. 19 at paras. 43 and 48.