Reasons for Sentence

DATE: October 5, 2022 Court File: 2811-998-20-35259-01 Ontario COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

SHAMAR BROWN

BEFORE THE HONOURABLE JUSTICE K. FillIer

On Tuesday, October 5, 2022, at 150 Bond Street East, Oshawa, Ontario

APPEARANCES:

J. Pollard Counsel for the Crown J. Baldassi Counsel for the Defence

Tuesday, October 5, 2022:

FillIer, J. (Orally):

Introduction

In the spring of 2020, Toronto Police received confidential information connecting Shamar Brown to drug trafficking and gun possession. On June 12th, 2020, members of the TPS Guns and Gangs Task Force attended at the residential address of Marissa Linscott-Wiltshire in Bowmanville armed with search warrants for both her condominium and her vehicle. Ms. Linscott-Wiltshire is the long-time common-law partner of Mr. Brown.

Police had both parties under surveillance the morning of June 12th and were watching as Ms. Linscott-Wiltshire picked up Mr. Brown from a halfway house in Toronto, and drove to the address in Bowmanville. Police called the takedown as the parties entered the lobby of the building. Ms. Linscott-Wiltshire was compliant while Mr. Brown engaged in a struggle with police. Officers reported that he was reaching for his waistband. He had a loaded handgun with an over-capacity magazine in a holster on his person. In the trunk of the motor vehicle, Mr. Brown had a bag containing cocaine, Oxycontin and Xanax all for the purpose of trafficking.

At the conclusion of several pretrial motions and the Crown's evidence at trial, Mr. Brown conceded that the Crown had indeed proven the allegations beyond a reasonable doubt, and I was invited to convict him and dismiss the charges against Miss Linscott-Wiltshire. Mr. Brown is before me today for the imposition of sentence.

Positions of the Parties

On behalf of the Crown, Mr. Pollard submits that a fit and appropriate sentence for Mr. Brown is one of 10 years minus his pretrial custody to be credited only at a one-to-one basis. On behalf of Mr. Brown, Counsel Mr. Moshe-Steinberg argues that an appropriate total sentence is in the range of seven to seven and a half years and that there should be, however, a significant reduction in that sentence due to harsh conditions faced by Mr. Brown in custody, as well as in mitigation for what I held to be a breach of his 10B rights upon arrest. As a result, Counsel submits, I should impose a sentence of four years and six months from which I should then deduct Mr. Brown's pretrial custody at a rate of one and a half to one.

The Circumstances of Mr. Brown

Mr. Brown is 27 years old and a Canadian citizen. He has 42 prior criminal convictions. Included in those are assaults, robberies, and multiple convictions for non-compliance with court orders. Most notably, Mr. Brown has three prior firearm convictions.

In 2012, Mr. Brown was convicted under the Youth Criminal Justice Act for possession of a prohibited or restricted firearm with ammunition contrary to section 95 of the Criminal Code. He was also convicted of possession of a firearm obtained by crime, carrying a concealed weapon and careless use of a firearm. At that time, he was sentenced to 136 days in secure custody, followed by 68 days of community supervision on top of 343 days of pretrial custody.

In 2014, Mr. Brown received his first conviction as an adult of possessing a firearm contrary to a prohibition order and for that he received 45 days on top of 102 days of pretrial custody. He was then prohibited from possessing firearms for life pursuant to Section 109 of the Criminal Code.

In March of 2018, Mr. Brown was convicted of possession of a loaded firearm, contrary to Section 95 of the Criminal Code and possession of a firearm contrary to the Section 109 lifetime prohibition order. On that offence, he received credit for the equivalent of three years and 50 days pretrial custody, and then he appears to have been sentenced to a further two years, 10 months and nine days.

The facts underlying those convictions involved Mr. Brown being fired upon while in a parking lot by someone in a different vehicle. Mr. Brown then returned fire. The exchange of gunfire in a public space caused a nearby school to be locked down. The following day, when police apprehended Mr. Brown, he was carrying a loaded and cocked handgun. At the time of his arrest on these charges before me, he was on two lifetime firearms prohibitions and two probation orders specifically prohibiting the possession of weapons. He was also on federal parole for those firearms offences.

According to a report from the Parole Board of Canada that was filed as an exhibit on sentence, Mr. Brown was raised in a two-parent family in a low-income neighbourhood. He has six brothers and sisters, most of whom are reportedly law-abiding. He had described a positive upbringing with no history of abuse. He did report being bullied in school, which he reported led to an association with negative peers.

Mr. Brown does not have his high school diploma, nor has he taken any steps while in custody to obtain it. Since his first conviction in 2008 at the age of 13, Mr. Brown has not spent more than four consecutive months free in the community.

As noted by the parole board, Mr. Brown's history under community supervision has been abysmal. He shows continuous, ongoing disregard for court orders of all types, even while incarcerated, he continues to engage in violent and illicit behaviour. According to the Parole Board of Canada:

While on remand custody for the 2018 offences, his behaviour included make gross insults, disobeying orders, multiple incidents of threats and assaults, and possession of contraband.

Again, at the time of his current offences on June 12th, 2020, Mr. Brown was on parole for possession of a loaded firearm. Ninety days after being released from federal prison on March 12th, 2020, he was in possession of yet another loaded firearm, an illegal magazine, and a host of illegal narcotics. Furthermore, despite the term requiring him not to associate with anyone involved in criminal activity, the police found Zachary Wright inside the target address on the couch. Mr. Wright was being sought by Toronto Police for attempted murder in Toronto.

The Principles of Sentencing

The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code.

These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders, and an acknowledgement of the harm they have caused the community, and specific victims. Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed it. This means that for the sentence I impose to be appropriate, I must tailor it to Mr. Brown's circumstances and the circumstances of the offences he has committed.

In determining an appropriate sentence, it is always helpful for the court to consider any relevant aggravating or mitigating circumstances at play. This includes features of Mr. Brown's background, features of the crimes he has committed, and any other evidence which I have received during this hearing. It would also include any legal direction, whether found in the Criminal Code or provided by higher courts with regard to particular aspects of this case that I must give significant attention to. Listing the applicable aggravating and mitigating features assist me in evaluating this case properly and contemplating what a fit and appropriate sentence is.

Aggravating Factors

I note the following aggravating factors: As already noted, Mr. Brown has an atrocious criminal record that has multiple firearm convictions. Second, he was on federal parole for a firearm offence, as well as multiple firearm prohibitions at the time he was arrested for these charges. Third, Mr. Brown has no employment history, and he acknowledges using crime as a means of earning an income.

Fourth, he has a history of misconduct in custody. And five, the offences themselves, particularly his possession of the loaded firearm on his person in a public space represented a real and immediate threat to both the police and members of the public on June 12th, 2020.

Mitigating Factors

Unfortunately, for Mr. Brown, there are very few mitigating factors present here. I did receive three letters of support on behalf of Mr. Brown. One from his sister Charmaine Riley who describes her brother as a caring person with a big heart. She expresses optimism that this time will be different and believes her brother now realizes that life is too short to be incarcerated and that he wants to put his criminality behind him. She says she is willing to help and support him in any way she can.

The second letter was from Jasmine Chaffee Barnes. She has been friends with Mr. Brown since they were seven years old, and she similarly offers to support him in the community. She too attests to his good character and describes him as a nurturing person who is a great friend and trustworthy individual.

And finally, Ms. Linscott-Wiltshire, who identifies as his common-law spouse described him as a kind-hearted, caring and loving person. She shares in the belief that he is truly ready to turn his life around, and she remains committed to assisting him in successfully reintegrating back into the community.

It is, of course, a positive feature for an offender to have support in the community. It is difficult to reconcile the overall assessment of Mr. Brown by these three women with his history of repeated criminal conduct. I have no doubt that their experience and their reflection of who he is to them is accurate, but again, it doesn't seem to add up with his behaviour in the community. I also pause to note that Ms. Linscott-Wiltshire was originally co-accused with Mr. Brown.

Given all the evidence I heard throughout these proceedings, I do have concerns that Ms. Linscott-Wiltshire was either overtly complicit in Mr. Brown's criminality or willfully blind to what was going on. Either way, on June 12th, 2020, she picked him up in her vehicle at the Halfway House around 8:45 a.m. Upon arrival at her residence in Bowmanville, less than 40 minutes later, Mr. Brown was armed with a loaded handgun and a bag of illegal drugs which he admits to possessing for the purpose of trafficking in the trunk of her car. There was also a fugitive in her condo on the couch.

I have no doubt when Mr. Brown is next being considered for release on parole, the board will look carefully at the facts surrounding this case in determining where it is appropriate for him to be in the community.

I am also mindful of the fact that Mr. Brown in 2015 was shot while standing at a bus stop in his own neighbourhood. According to Mr. Brown, since that time he has been traumatized and fears for his life. In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal had occasion to address the admissibility of anti-black racism in sentencing. In that case, the trial judge had been provided with a detailed, personalized report addressing the defendant’s own experience with anti-black racism. Here I have not received any such information specific to Mr. Brown beyond the fact that he is indeed a young black male who was raised in a two-parent family in a low-income neighborhood.

In R. v. Morris, at paragraph 97, the court held as follows:

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, [however] mitigation of [a] sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour.

Despite Counsel raising in his submissions that Mr. Brown is obviously a young black gentleman, there was simply an absence of evidence from which I could infer that overt or systemic racism have had any impact on him, that is in any way relevant to my determination of a fit and appropriate sentence. I have, however, considered the totality of the information I have learned about Mr. Brown as his background is highly relevant.

Credit for Pretrial Custody

A significant portion of the submissions I heard on sentencing focused on the credit to be given to Mr. Brown for his pretrial incarceration.

R. v. Summers Credit

When Mr. Brown was arrested on June 12th, 2020, his parole was obviously revoked, and he commenced serving the remnant of his federal sentence. His warrant expiry date was March 17th, 2021, and since that time he has been in pretrial custody on the offences before me. By my count, that is a total of 569 days, or one year, six months and 20 days including today.

Section 719(3.1) of the Criminal Code provides that the maximum credit for pretrial custody a court may award is one point five days for every day spent in pretrial custody. In R. v. Summers, [2014] 1 SCR 317, 2014 SCC 9, the Supreme Court of Canada held that the circumstances justifying enhanced credit under subsection 3.1 need not be exceptional or unique to the offender. The court held that the loss of early release taken alone will generally be a sufficient basis to award credit at the rate of one point five to one, even if the conditions of detention are not particularly harsh or that parole is unlikely.

In R. v. Slack, 2015 ONCA 94, 321 CCC3rd 474, the Ontario Court of Appeal affirmed again that the fact of presentence custody is generally sufficient to give rise to an inference that an offender has lost eligibility for parole or early release, thereby justifying enhanced credit. The onus is on the Crown to challenge this inference, for instance, by demonstrating that the offender’s bad conduct in jail renders it unlikely that he or she will be granted parole or early release.

On behalf of the Crown, Mr. Pollard submits that Mr. Brown's criminal record, his conduct, his reported conduct in custody, his offending while on parole, and his failure to try for bail on these charges all lead to the inexorable conclusion that he would never have been eligible for early release and therefore should not be granted enhanced credit. While the Crown is probably correct, I do not find that I have an adequate record before me to deny Mr. Brown statutorily enhanced credit. He will be given credit for the 596 days he has already served at a rate of one point five to one for a total of 854 days, which is rounded up from 853.5, or in other words, two years, four months, and 15 days.

Duncan or Further Enhanced Credit

On the basis of pretrial incarceration conditions experienced by Mr. Brown, defence counsel submits that further credit on top of one point five to one be granted. As I understood Counsel's argument, I am urged to find that a seven-and-a-half-year sentence would be fit, but reduce that to four and a half years, taking into account both R. v. Summers credit and the lockdowns and hardships occasioned by Covid-19 in the jail.

The evidentiary basis for this defence submission comes from both the testimony of Mr. Brown, as well as from the lockdown records obtained by Central East Correctional Centre. According to the records from CECC, where Mr. Brown was in custody from June 13th, 2020 to present, and those records are dated as of September 2nd, 2022, there were 50 days that his unit was locked down for less than six hours and a total of 271 days where his unit was locked down for a full day, which means eight to ten hours.

The report states that on those occasions of full lockdowns, there may be limited access to visits, phones, and showers. It also indicates there is no day room or yard during the period of lockdown. The records also reflect that the reason for those lockdown days was typically as a result of either staff shortages, staffing levels, or droplet precautions, and outbreak management as per public health.

According to Mr. Brown, he says he was subject to 378 days of lockdown with 255 of those being full lockdown days and 123 partial lockdown days. These numbers were included in Mr. Brown's affidavit filed on sentencing. Under cross-examination, Mr. Brown testified that he was collaborating on his lockdown record-keeping with his cellmate, a Mr. Thompson, who was awaiting trial for murder. When he and Mr. Thompson were separated, Mr. Brown, with the assistance of the jail guards, was able to receive a copy of Mr. Thompson's lockdown record-keeping notes.

It is for this reason that I prefer the records of the institution over the evidence of Mr. Brown on the quantum of lockdowns. He readily admitted that he deferred to the record-keeping of someone else who was not before this court to be assessed. Nevertheless, even with the lower number being preferred 321 days, being locked down in whole or in part is a significant number of days and I also accept that Mr. Brown contracted Covid-19 while incarcerated.

Most notably, and tragically, Mr. Brown's mother also succumbed to lung cancer while Mr. Brown was awaiting trial. For reasons not made clear to me, whether it was Covid related or for security reasons, Mr. Brown could not attend her funeral in person. I accept that due to technical issues, he was also prevented from watching it live in the jail. The institution instead had to record it for him so he could watch it at a later time.

In R. v. Duncan, 2016 ONCA 754 the Ontario Court of Appeal affirmed that a court may grant credit in excess of the statutory maximum of one point five to one to reflect particularly harsh conditions of presentence incarceration, such as frequent lockdowns. In the recent decision of R. v. Marshall, 2021 ONCA 344 the same court clarified that this is not a deduction from an otherwise appropriate sentence, but it is one of the factors to be taken into account in determining the appropriate sentence.

As noted by the Ontario Court of Appeal in R. v. Marshall at paragraphs 50 to 53, the court said as follows:

R. v. Duncan credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind [that] the one point five to one R. v. Summers credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody. The R. v. Duncan credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. [...] The very restrictive conditions in the jails and the health risks brought on by Covid-19 are [an] example of the kind of circumstance that may give rise to a R. v. Duncan credit. [...]

The R. v. Summers credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. [...] It is statutorily capped at one point five to one.

The R. v. 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 R. v. Summers credit will then be deducted. Because the R. v. 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.

The 10(b) Breach

Finally, Counsel raises the breach of Mr. Brown's 10(b) rights and urges me to consider this as well in fashioning a fit and appropriate sentence. In an earlier ruling on this case, I concluded that Durham Police violated Section 10B when they failed to fulfill their implementational duties after Mr. Brown indicated he wanted to call counsel.

The total time period during which a call should have been made to Mr. Brown's counsel of choice, but was not, was approximately two hours and ten minutes. I characterized the breach of Mr. Brown's rights as serious and also concluded that the impact on his Charter protected interest was moderate. The police did not attempt to elicit any information from him during that period.

Conclusion

Taking into account all of the circumstances of this case, including the aggravating and mitigating factors, the conditions of Mr. Brown's pre-trial incarceration, the violation of his Section 10(b) rights upon arrest, and the particular features of his background, I conclude that a fit and appropriate sentence, and in fact, the lowest possible sentence that would achieve the requirements set out in the Criminal Code is one of ten years. The case law provided by the parties has assisted me in reaching this conclusion.

Mr. Brown may be young, and I take no pleasure in sentencing him to such a lengthy period of incarceration, but he has also proven he is dangerous. He has been undeterred by nearly a lifetime of penal consequences. Indeed, it would appear that his contempt for the law in this country has increased over time.

He was paroled on March 12th, 2020, at the outset of the pandemic and after he walked out the door of his halfway house 90 days later, he was armed with a deadly weapon with an over-capacity magazine, putting the lives of law enforcement and the community at risk. He now professes to be ready to change his ways, and I hope that is true. Only time will tell if he really is.

For now, denunciation, deterrence, and public safety demand that he be separated from society for the period as indicated. As such, the sentence will be as follows. On the Section 95(1), he will be sentenced to eight years. On the Section 117.01, the sentence will be six months consecutive. The violation of Section 92.(2), he will receive another six months consecutive.

On the Section 52 offence of possession cocaine for the purpose of trafficking, he is sentenced to nine months consecutive. And on the Section 52 offence of possessing Oxycontin for the purpose of trafficking, he is sentenced to a further 90 days consecutive. From that sentence, I will deduct two years, four months and 15 days, which leaves a remainder of eight years, five months and 15 days to serve. Mr. Brown, good luck, sir.

SHAMAR BROWN: Thank you, Your Honour.

THE COURT: And the remaining counts are to be stayed. Is that correct?

MR. POLLARD: Yes. That’s correct.

THE COURT: All right.

MR. POLLARD: Thanks, Your Honour.

THE COURT: I will order that a copy of my decision, a transcript will send with him to the institution.

MR. POLLARD: Thank you, Your Honour.

COURT ADJOURNED

Electronic Certificate of Transcript

Form 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act

I, Debbie Knight (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of R. v. Brown in the ONTARIO COURT OF JUSTICE (Name of Case) (Name of Court) held at 150 Bond Street East, Oshawa (Court Address) taken from Recording 2811_404_20221005_091433__6_FILLIEK which has been certified in Form 1. May 24, 2023 (Date) (Electronic Signature of Authorized Person(s)) 1760322488 (Authorized Court Transcriptionist’s Identification Number — If Applicable) Ontario, Canada. (Province of Signing) A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate. Debbie Knight, ACT# 1760322488 debbie@knighttranscripts.com 416-550-4710