Court File and Parties

ONTARIO COURT OF JUSTICE DATE: March 3, 2022 COURT FILE No.: 21-G15263

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MARVIN DUBOIS

Before Justice Berg Released on March 3, 2022

Counsel: M. Humphreys, counsel for the Crown E. Lyttle, for the defendant

Reasons for Sentence

Berg J.:

[1] On July 29, 2021, Mr. Dubois pleaded guilty before me to a single count of possession of a restricted weapon, to wit: a handgun without being the holder of the required licence and certificate. This charge is pursuant to s. 92(1) and (3) Criminal Code, which read in part

92 (1) … every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

92 (3) Every person who commits an offence under subsection (1) … is guilty of an indictable offence and liable

(a) in the case of a first offence, to imprisonment for a term not exceeding ten years;

[2] Mr. Dubois comes before me with no criminal record. The Crown is seeking a sentence of 365 days of imprisonment less the time that he spent in pre-sentence custody, an enhanced total of 23 days. This should be followed, in the Crown’s view, by 12 months of probation. The Crown is also seeking two ancillary orders. First of all, a s. 110(1)(b) Criminal Code weapons prohibition for 5 years. Secondly, a secondary DNA order. Mr. Dubois takes no exception to the former but is opposed to the latter.

[3] Counsel for Mr. Dubois takes the position that the sentence here should be 365 days of imprisonment imposed conditionally followed by 12 months of probation. Mr. Lyttle submits that his client is a young Black male whose background should inform the sentencing process. Obviously, context in sentencing is always important as sentencing is an individualized process (see, for example, R. v. Lacasse, 2015 SCC 64). But it is important to recall that a five-member panel of the Ontario Court of Appeal has recently felt it necessary to stress that experienced racism is part of the context to be considered by the sentencing judge (R. v. Morris, 2021 ONCA 680). Mr. Lyttle submits that it is through such an analysis that the Court would come to find that a conditional sentence of one year is appropriate; he made reference to paragraph 56 of Morris. In that paragraph, the Court of Appeal both drew attention to the significance of evidence of anti-Black racism and also referred to the limits that apply to its use.

[56] A sentencing judge has a specific and focused task. 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.

[4] Mr. Lyttle also submitted that should I not accept his submission that Mr. Dubois is to be sentenced conditionally, an appropriate alternative sentence would be a 90-day intermittent sentence. I disagree. An intermittent sentence here, even one of 90 days, would not be sufficiently denunciatory or provide a level of deterrence in keeping with the seriousness of the charge before this court. The issue here is jail or a conditional sentence of imprisonment.

The Agreed Statement of Facts

[5] The Crown and Mr. Dubois have agreed to the factual basis underlying his plea of guilt. The agreed statement of facts reads as follows:

1. Marvin DUBOIS (“MD”) is 23 years old. He was born and raised in Ottawa and does not have a criminal record.
2. On March 26, 2021 at 7:31 p.m., the building security camera located in the vestibule at 580 Queen Mary St. captured an unknown male in grey sweatpants leaving the building via the front door.
3. That same day at 7:32 p.m., the building security camera located in the vestibule of 580 Queen Mary St. captured MD leaving the building wearing an all navy jogging suit with some white logos. The hood of his sweatshirt was pulled up. He also had below his chin a light blue hospital mask.
4. At 7:33 p.m., the same security camera captured MD running up the walkway to the main entrance of the building. In his right hand he is carrying a silver restricted handgun that he knowingly possessed without having a certificate to possess the firearm.
5. Once inside the vestibule, MD placed the handgun into the right pocket of his jogging pants. He then used his cell phone and appears to be speaking with someone. The butt of the gun is shown protruding from his pocket on the video. There is another person who appears to be unrelated to this incident in the vestibule with him.
6. At 7:35 p.m., the security footage shows MD leaving 580 Queen Mary Street from the main entrance again. He is seen speaking with two men while walking down the walkway towards Queen Mary Street.
7. At approximately 7:40 p.m., Ottawa Police Service officers (“the OPS”) were dispatched to the area of 580 Queen Mary Street after 911 calls were placed in relation to gun shots being fired. Witnesses observed a group of between 6 to 8 dark-skinned males together in the area. Two of those males were walking across Queen Mary Street when a black car, driving along Queen Mary Street suddenly sped up and swerved in the direction of the two males in what looked like an apparent attempt to hit or scare the men.
8. The two men ran up the laneway of 579 Queen Mary Street, then back down the laneway toward the vehicle as it sped away. One of the men pulled out a firearm and fired one shot toward the car. It is unknown what, if anything, the bullet struck. The incident took place in the busy residential neighbourhood of Overbrook, and several bystanders were present.
9. One witness described the shooter as wearing grey jogging pants.
10. The shooting was captured on a residence’s doorbell camera. However, the quality of the video makes it impossible to identify which of the two men fired the shot from the end of the laneway at 579 Queen Mary Street.
11. MD was not captured by surveillance video returning to 580 Queen Mary Street that night. MD’s vehicle was located in a public parking lot beside 579 Queen Mary Street by the OPS.
12. MD turned himself in to the OPS on April 7, 2021. He was held for show cause. He was released on April 22, 2021 after a contested show-cause hearing. He was released with conditions.
13. The silver handgun was never recovered by the OPS.

[6] Thus, the evidence relevant on this sentencing is that Mr. Dubois was illegally in possession that evening of a handgun. There is no evidence whether the weapon in question was loaded. While there is no evidence that Mr. Dubois fired that pistol, it is clear that he was involved in some sort of a confrontation, the nature of which is unknown. The handgun was not recovered. I cannot find that it was abandoned, that it was given to someone else, that it was hidden, or that it was destroyed.

R. v. Morris

[7] The Ontario Court of Appeal has recently provided direction to trial judges as to how the experience of racism is to be factored into the sentencing analysis of Black offenders: R. v. Morris, 2021 ONCA 680. The starting point for any such analysis must be an acceptance of the reality of anti-Black racism. The Court of Appeal began its decision with the following paragraph:

[1] It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis … Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.

No one has suggested to me that the City of Ottawa is somehow immune to this societal problem.

[8] The conclusions in Morris were:

1. 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;
2. 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;
3. 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;
4. 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;
5. Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
6. 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.

[9] The Court of Appeal stressed that the sentencing of offenders such as Mr. Dubois falls within the already well-established framework utilized for sentencing. I have already cited paragraph 56 of Morris.

[10] The principles and objectives of sentencing are well-known but nonetheless worthy of repetition.

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[11] It is the application of these principles and objectives to the evidence before a sentencing judge that will lead to a just sanction. Within the sentencing analysis “evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence” (Morris, at paragraph 87) and “[w]hereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged, and serve to guide judicial decision making” (at paragraph 40).

[12] The decision in Morris explains how evidence of the effects of racism on an offender can be applied to the sentencing process.

[96] Some of the interveners submit that Hamilton, at para. 137, wrongly requires a direct causal link between the offence and the negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating personal responsibility. We agree that the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing. As one counsel put it, a young offender does not have to show a causal connection between age and the offence before age will be treated as a mitigating factor.

[97] There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount: see e.g., F.H.L., at paras. 45-49; R. v. Elvira, 2018 ONSC 7008, at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, 420 C.R.R. (2d) 22, at paras. 126-29; and R. v. Biya, 2018 ONSC 6887, at para. 36, rev’d on other grounds, 2021 ONCA 171.

[13] This brings us, logically, to the evidence adduced by the defence at this hearing.

The Enhanced Pre-Sentence Report

[14] Counsel for Mr. Dubois commissioned the preparation of an Enhanced Pre-Sentence Report. The author was Michelle Richards M.S.W, R.S.W, a clinical and forensic social worker. I would like to deal with one issue upfront before reviewing the substance of the EPSR. Mr. Humphries pointed out that Ms. Richards did not display strict objectivity at points in the report. The Ontario Court of Appeal noted in Morris at paragraph 145 that

[t]o maintain that objectivity, the report cannot purport to speak for the offender or advocate on the offender’s behalf. A social context report must also distinguish between facts and an offender’s perceptions and beliefs as stated to the author. Both perceptions and facts are important, but they are not the same thing. For example, an offender’s assertion he was mistreated by the police and correctional authorities and subject to unreasonable bail terms cannot be presented as facts in the report.

I agree with the Crown that Ms. Richards did occasionally stray. However, I do not take him to be suggesting that these occasional lapses diminish the main substantive thrust of the report.

[15] That being said, I do agree with Mr. Humphries that one particular paragraph in the EPSR is completely inappropriate. It is found on page 19 of the report.

Mr. Dubois presented with intelligence, self-awareness and the demonstrated ability to navigate change such as moving to another country and navigating difficult school and work environments. However, his level of consciousness did not extend far enough to prevent his actions. It bears considering that as a young man living in a time where there is a focus on instant gratification, Mr. Dubois was focused on survival in the moment and lacked the capacity to give due consideration to the possibility of long-term, adverse consequences.

I have no idea whatsoever what the phrases “his level of consciousness did not extend far enough to prevent his actions” and “and lacked the capacity to give due consideration etc.” are supposed to mean in the context of a forensic social work report prepared for the consideration of a criminal court judge. The report does not suggest that Mr. Dubois suffers from an intellectual deficit or that he is unfit to stand trial or that he possessed the pistol due to automatism. The offending phrases, I find, are best understood as advocacy and here, advocacy that was directly contradicted by the very words of Mr. Dubois contained in the report: “He reported that he gave serious consideration to the consequences of possessing a gun …” Leaving aside this contradiction, it is important to remember that advocacy has no place in such a report as it could call into question the objectivity of the writer during its preparation. It is to be remembered that the report will be presented to the court by a person who is allowed to and will advocate for their client, to wit: counsel for the accused. What the court seeks from the writers of these reports are the facts about the accused as well as rehabilitative recommendations. Issues such as deciding the level of moral responsibility are to be left to the court.

[16] From the report, I learn the following. Mr. Dubois is 23 years old. He was born in Ottawa to Haitian parents. The marriage ended when Mr. Dubois was 1 year old; there has been no contact between son and father since then. He has two siblings, an older brother by the same father and a younger sister born of his mother’s remarriage. His mother grew up in Haiti seemingly in a middle-class family. She graduated from college and ended up working as a secretary to a member of the legislative assembly. She emigrated to Canada in 1991, leaving her homeland due to political conflict. This was the time of the Duvalier family in that country.

[17] She settled in Montreal, learned English and eventually began to work for a publishing company. Then, she met Mr. Dubois’s father and they moved to Ottawa. Both her sons, David and Marvin were born in this city. The marriage ended. Subsequently, she met her current husband and, when the accused was 4 years old, the family moved to Fort Lauderdale, Florida and remained there for nine years. They then returned to Ottawa. The family resides in the suburb of Orléans in a home that they own. The family dynamics were such that Mr. Dubois was not close to his stepfather or siblings. His mother had a very busy work schedule. He described to the report writer a sense of being alone while in his family. I note that he has been in a romantic relationship for a little over a year; his partner was interviewed for the report.

[18] Mr. Dubois completed high school and some college. He has a demonstrated history of employment. He has recently accepted a better paying job than the one he has been employed at for the past year or so. The report also demonstrates that Mr. Dubois is considering various entrepreneurial efforts. He seems to be aiming at self-employment.

[19] It appears to have been Mr. Dubois’s perception that when he was a student and applying for part time jobs, he would not get interviews because of his race or, in one case, was hired only because the employer needed a token person of colour to comply with a head office directive. He was laid off from a job at the beginning of the pandemic. He believes that the reason he was not hired back was due to his race.

[20] His main interest over the past few years has been music. As I will discuss a bit later, his musical endeavours led to him being charged with a breach of the curfew condition of his release order.

[21] The EPSR contains a narrative of the racism to which Mr. Dubois was subjected. The narrative is a subtle one for the most part. However, that does not render it any the less valid as an explanation for Mr. Dubois’s worldview. His mother recalled that he had had “difficulties with white students” at an elementary school in Florida. He recounted for the present report that he left that school as a result of a fight with a white student. His mother confirms that there were problems with white students at that school but neither racism nor fighting was the reason he left the school. It was for the more prosaic reasons of costly tuition and long commute. Nonetheless, the report provides a sense of how Mr. Dubois viewed what occurred. After leaving that school, the balance of his education in Florida was at schools that had predominately Black teachers and students.

[22] He began his Canadian schooling at a predominately white high school. This was in 2011. Mr. Dubois recounted how upon arriving at this school in Ottawa, he felt uncomfortable. He explained for the EPSR that “much of his discomfort was rooted in the anti-Black racism that he experienced, which was a contrast to his educational experience in Florida.” This racism manifested itself in several ways. For example, conflict with other students resulted in racist slurs. It was his perception that Black students were punished more severely than white students for the same offences. A teacher who was interviewed for the report actually noted that that was indeed sometimes the case.

[23] The report does not use the word ‘alienation’, but that is what it is describing: alienation from white society at school. “Mr. Dubois used the word “targeted” to describe his experiences with teachers who made him feel as if he did not belong. He asserted that some used to tell him that they considered all Black youth irresponsible.” I suspect that the word ‘some’ conceals a very small number. However, it would not take very many teachers espousing such views to have a significant impact on the way a young person sees the world. It is no wonder that Mr. Dubois reported gravitating to other Black students. Two friends from that period who were interviewed for the report confirmed this perception. The EPSR notes that his current cohort of friends is made up of Black men whom he befriended in high school.

[24] This was Mr. Dubois’s outlook in 2015. That year, his brother was charged in the death of a white youth. He began to lose his academic focus. He felt ostracized by the teachers. A friend who was a fellow student from that time was interviewed for the EPSR and noted that after this incident, “it seemed like a witch hunt … they (teachers) had a problem with us just walking together. The principle told us we couldn’t walk together because we looked like a mob and are intimidating other people.” The teacher who was interviewed noted that he observed Mr. Dubois fall into a period of depression after his brother was charged. The school friend recalled that the accused was being threatened by white students as a result of his brother’s actions.

[25] Mr. Dubois’ brother pleaded guilty to manslaughter in 2017 for the 2015 killing. I will here quote an extensive passage from the EPSR as it deals with the main issue at hand: why Mr. Dubois was in possession of the handgun.

Mr. Dubois stated that in addition to the enhanced scrutiny that he faced at school because of his brother’s offence, his family also faced unwanted attention from local residents, “the house was on the internet, safety was compromised, people were coming to the house”. Mr. Dubois explained that when the local news ran the story, their home in Beaconwood was on full display with the address. Reporters and other people showed up to their home, and he grew concerned for his family’s safety. Although the family moved from Beaconwood within months after the incident, the threats continued as early as recently.

Mr. Dubois stated that the most concerning threats were those against his whole family; some people threatened to shoot, stab and rape his mother and younger sister. Mr. Dubois explained that the threats were levelled over social media from anonymous fake profiles so he could not identify the perpetrators, “the violent messages had me on guard”. He further stated that some of the threats were racist in nature, “take the n_____rs out”.

Mr. Dubois expressed that he was fearful of the anonymous sources carrying out the persistent threats, which motivated him to secure a gun. He believes that the police were aware that the family was receiving threats, but due to the passage of time, he could not provide specific details. As a young Black man who was aware of racial profiling and had experienced it himself, Mr. Dubois was not confident that they would be of assistance. He felt that he would eventually need to defend himself in person as “people had me in their sights”, especially as his reputation for musical performing grew. …

Mr. Dubois stated unequivocally that had it not been for his brother’s offence and conviction, he would have had no reason to obtain a gun, “I feel like I would not have had to. I would have felt safe. I was exposed to such threats early on … if I hadn’t experienced it, I would have been okay”. He reported that he gave serious consideration to the consequences of possessing a gun, as this behaviour does not align with his upbringing or ambitions. He reiterated that he has always strived to avoid trouble in an effort to protect his future, and to avoid bringing his mother’s name into disrepute. However, he expressed that he lived with the fear of some harm coming to his family, “it’s kind of like a choice between two things, to be victimized or not”.

I wish to make it clear that I do not see Mr. Dubois as a victim here and by here, I mean within the context of the possession of an illegal firearm. As was noted by Justice P. Campbell of the Superior Court of Justice in R. v. Tabnor, 2021 ONSC 8548 at paragraph 24, cases such as Mr. Dubois’ do not lend themselves “to a binary division between the blameworthy and the faultless”, yet “culpability can be fairly evaluated and, to a degree, mitigated, without being minimized or ignored.”

[26] Mr. Dubois’ own interactions with the police prior to his arrest appear to have been quite limited. He reported an incident where he and friends in a car were pulled over, an incident, he asserts, that was due to racial profiling. At another time, a group including Mr. Dubois were questioned by police at a shopping mall. The EPSR noted that “Mr. Dubois advised that they complied because ‘we didn’t want to get body-slammed’”. Once again, it was his perception that he and his friends were being picked on because of their race. Likewise, the two friends of Mr. Dubois who were interviewed for the report, two young Black men, recounted similar perceptions as did his partner and his mother. Whether each incident was actually an incident of racial profiling is not the issue. Given the undoubted existence of racism in our society, it can hardly be questioned that it informs the world view of the people who experience it. It would be naïve to expect a young Black man with this world view to reach out for help from the police.

[27] Mr. Dubois informed the report writer that he was open to the idea of individual therapy. It seems that he began sessions last November at an institution offering culturally responsive therapy. The EPSR concludes with two suggestions for culturally appropriate programming.

[28] The report includes the following passage. “Mr. Dubois was remorseful and accountable for his decision to possess a gun. He conceded that even though his actions were borne of safety concerns, he could have made a different decision, such as moving.” This is in keeping with what he expressed when he addressed the Court. Moreover, he noted that his family, girlfriend and friends have all been supportive since his arrest and he feels less isolated as a result.

Analysis

[29] Mr. Humphries submits that an aggravating factor in the present case is that the firearm in question was not recovered. However, I cannot find beyond a reasonable doubt that the pistol is “still out there”. I do not know if it was given away, hidden, or abandoned, on the one hand, or destroyed or rendered unrecoverable on the other. While the former situation would clearly be “a weighty aggravating factor” (see Morris, at paragraph 172), the latter would not.

[30] There are significant mitigating factors here. First of all, the moral blameworthiness of Mr. Morris’s conduct is mitigated by the context outlined through the evidence in the EPSR. One does not condone the behaviour, but one understands the dynamics of racism and alienation that brought Mr. Dubois to possess the firearm.

[31] Then, there is the fact that Mr. Dubois has entered a plea of guilt. This serves both as an indicator of remorse and as a means to conserve court resources. As well, Mr. Dubois comes before this Court as a first time offender and a youthful one at that. The law is clear that in cases such as this the principles of restraint and rehabilitation are of great significance. The Ontario Court of Appeal pointed out in its decision in R. v. Priest, [1996] O.J. No. 3369 at paragraph 23 that

it is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

And at paragraph 24 that court, in citing an earlier decision, remarked that

Martin J.A. adopted the following statement of principle from R. v. Curran (1973), 57 Cr. App. R. 945, per MacKenna J. at pp. 947-48:

As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence; and what sentence is needed to teach this particular offender a lesson which he has not learnt from the lighter sentences which he has previously received.

Martin J.A. also stated that this emphasis on individual deterrence rather than general deterrence was particularly applicable in the case of a youthful first offender.

Our Court of Appeal reiterated this approach in R. v. Brown, 2015 ONCA 361 at paragraph 7, stating

[t]he sentencing judge’s description of the crime is apt. General deterrence and denunciation had to be weighed heavily in sentencing this serious violent crime. However, it was an error to say these factors had become “the primary consideration”. The primary objectives in sentencing the youthful first-time offender remained individual deterrence and rehabilitation. In balancing the factors, the sentencing judge still had to impose the shortest term of imprisonment that was proportionate to the crime and the responsibility of the offender, given his young age.

[32] The importance of the possibility of rehabilitation in the case of a first offender was once again stressed by the Court of Appeal in the companion appeals of R. v. Disher, R. v. Weaver, 2020 ONCA 710. Gillese J.A. noted at paragraph 60 that

[n]or did the sentencing judge address Ms. Weaver’s rehabilitative prospects. He stated that deterrence was the paramount sentencing consideration, given the seriousness of the substances being trafficked. While I agree that general deterrence and denunciation are important factors to be considered in a case such as this, it is an error to fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender: Batisse, at para. 34; R. v. Thurairajah, 2008 ONCA 91, at para. 41; and R. v. Mohenu, 2019 ONCA 291, [2019] O.J. No. 2003, at paras. 12-13.

And in another 2020 case, R. v. Randhawa, 2020 ONCA 668

[30] The fundamental sentencing principle that applied in this case is that sentences other than a custodial one must be considered in sentencing a youthful first-time offender. The trial judge noted the Crown’s acknowledgement that the appellant “is a first offender who, with the help of concerned parents, has made efforts to rehabilitate” and that specific deterrence is not an issue. This is the only reference to the appellant as a first-time offender in the trial judge’s reasons. He did not refer to the appellant as a youthful first-time offender and did not state her age in his reasons for either sentence or verdict. The appellant, who was 23 years and eight months old, and a student at the time of the offence, was a youthful first-time offender. In R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at paras. 373 and 379, this court applied the principle to a 24-year-old offender. As in that case, the trial judge erred in principle by failing to advert to the established sentencing principle that applies to youthful first-time offenders and by placing undue weight on deterrence and denunciation and considering rehabilitation only “when addressing the length of the custodial sentence to be imposed”, having already concluded that a custodial sentence was appropriate: Beauchamp, at paras. 377-379; see also R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81, at paras. 53-57, per Sharpe J.A. (concurring). It falls to this court to determine the appropriate sentence applying this established principle.

[33] Mr. Dubois spent two weeks in custody before making bail. He advised the report writer that it was the worst two weeks of his life. One notes that his incarceration coincided with the onset of the pandemic and his stay at the Ottawa-Carleton Detention Centre was affected significantly by the problems that Covid-19 caused the custodial authorities.

[34] Mr. Dubois was released on April 22, 2021 pursuant to the conditions of a release order with two sureties. The conditions were not particularly onerous; there was a curfew from 11:00pm to 6:00am. Mr. Dubois has respected those conditions for the most part. There is one allegation of breach before me. Mr. Dubois was charged on September 17 with a breach of his curfew condition. If I understand correctly what occurred, he was performing at a musical event in Ottawa. He was observed by the police leaving the venue at 10:56pm and walking quickly to a motor vehicle. He was arrested at 10:58 pm., I assume on the basis that it would have been physically impossible for Mr. Dubois to get home in two minutes. Little turns on these allegations. The Crown will be withdrawing this charge today. It would seem that Mr. Dubois was on his way home, albeit late. These allegations do not cause me to doubt that he is capable of obeying court orders. It is also germane at this point to remember that Mr. Dubois surrendered himself to the police on the substantive offence.

[35] There is no gainsaying the gravity of the offence to which Mr. Dubois has pleaded guilty. There is nothing inherently unreasonable about the Crown position of one year of imprisonment. Denunciation and deterrence are significant factors in cases involving firearms (see, for example, Morris, at paragraphs 70-71). However, in appropriate cases, the principle of restraint is engaged leaving open the possibility of something short of actual time in jail. As was stated in Morris at paragraph 125,

[t]he requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.

It is to that issue that we shall now turn.

[36] The first question is whether a conditional sentence is statutorily available here. The test has been explained by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 at paragraph 77.

Once the sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[37] There is no minimum term of imprisonment required in the present case. The gravity of the offence renders a suspended sentence inappropriate. The Crown is not seeking a penitentiary sentence. Mr. Dubois is a first-time offender who has not breached his release order or at least has not done so in any manner that is of concern to this court. He has thus obeyed the order of the court for a bit less than a year. He has demonstrated pro-social proclivities. He is remorseful. I am satisfied that should I grant Mr. Dubois a conditional sentence of imprisonment, I would not be putting the community in danger.

[38] This brings us to the last part of the test. Would a conditional sentence be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2? Important here is the observation of the Supreme Court in Proulx at paragraph 22.

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.

[39] I find that on the basis of the social context evidence before me, a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Such a sentence, “while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism” (Morris, at paragraph 79). That being said, a proportionate sentence here, given the seriousness of gun offences, will require a conditional sentence significantly longer than that suggested by Mr. Lyttle.

Sentence

[40] I am of the view that the seriousness of the charge in the present case requires something closer to the maximum period for a conditional sentence than one year. Given the totality of all the elements referred to above, I find that a conditional sentence of 18 months or 540 days is appropriate. I will modify this slightly by reducing that quantum by 23 days to reflect an enhanced total for the fifteen days that he spent in custody prior to being released. Mr. Lyttle is quite properly not seeking any further credit pursuant to R. v. Downes, [2006] O.J. No. 555 (Ont. CA). Therefore, the length of the conditional sentence that Mr. Dubois will actually have to serve is 517 days.

[41] During the period that he will be serving sentence, he will be subject to a house arrest for the first 180 days with necessary exceptions to be discussed with counsel. The second 180 days will be a period during which Mr. Dubois will be subject to a curfew. We will discuss the times and exceptions momentarily. There will be no such restrictions on his movements during the balance of the sentence. I would also like to discuss the two programs recommended in the EPSR, specifically: The Black African Caribbean Entrepreneurship Leadership Training Program offered by the Black Business and Professional Association as well as the FAMHAS Foundation Culturally Responsive Therapy Program.

[42] The conditional sentence will be followed by 12 months of probation.

[43] I turn now to ancillary orders. I will order a s. 110(1)(b) Criminal Code weapons prohibition for 5 years. Secondly, I will make a secondary DNA order. I believe that such an order is in keeping with the gravity of the offence.

Released: March 3, 2022 Signed: Justice Berg