Ontario Court of Justice

Date: 2023 01 11 Court File No.: Toronto 998 22 70005326

Between:

HIS MAJESTY THE KING

— AND —

CHITIFARTA SUKKUSHE

Before: Justice Rose

Heard on: December 21, 2022 Reasons for Judgment released on: January 11, 2023

Counsel: Ms. Minchopoulos.............................................................................. counsel for the Crown Mr. Mwangi.............................................. counsel for the accused Chitifarta Sukkushe

Rose J.:

[1] On September 14, 2022 I found Mr. Sukkushe guilty after trial of 4 gun charges: ss. 95(1), s 92(1), s 92(2) x 2. All relate to the seizure of a loaded Sig Sauer P226 semi-automatic 40 Caliber handgun loaded with 12 cartridges at a Canada Border Services Agency (CBSA) office on November 30, 2021. That day Mr. Sukkushe arrived at the CBSA office to meet CBSA personnel about a variation of his immigration release terms. He met with CBSA personnel in a private interview room off the main entrance area. It turned out that he had an outstanding bench warrant from Toronto Police. When TPS officers arrived to arrest Mr. Sukkushe on the bench warrant there was a brief struggle. After his arrest his belongings were retrieved by CBSA personnel from the interview room and a loaded Sig Sauer P 226 was discovered secreted among them. Mr. Sukkushe was not present when the gun was found in his clothing because he was being put into a police car for transportation to Toronto Police 51 Division regarding the bench warrant.

[2] Mr. Sukkushe has no criminal record. He is 25 years old and a Nigerian national. He has no legal status in Canada, because he is subject to a removal order from CBSA. He is a temporary resident. Indeed, the trial heard evidence that CBSA personnel were amenable to relaxing his immigration release if he applied for Nigerian travel documents first, which was what was happening while he was at CBSA offices that day.

[3] Mr. Sukkushe came to Canada in 2015 to study. He attended university in Winnipeg for two years, and was supported by his parents. Mr. Sukkushe was cooperative with the Pre-Sentence Report (PSR) writer, and the PSR indicates that he was studying computer science. He then developed health problems and was hospitalized for several months. When he recovered his family’s situation had changed and they could no longer support him. He dropped out of school and moved to Toronto. By 2020 he was living in a shelter, and working a variety of jobs.

[4] I would identify the aggravating circumstance principally being my finding that Mr. Sukkushe brought a loaded handgun into a government building which was actively used by persons needing the assistance of CBSA services. The evidence did not establish that the CBSA building attracts a high volume of vulnerable people. Rather, it appears to be a combination enforcement office with limited public services, similar to a common police detachment. Carrying a loaded handgun into a public area is an aggravating circumstance, see R. v. Elvira 2018 ONSC 7008, R. v. Serrano 2018 ONSC 6785, particularly where it was just carried about loosely, as Mr. Sukkushe did.

[5] I would identify the mitigating circumstances being Mr. Sukkushe’s relative youth, and his lack of criminal record. It is not aggravating that Mr. Sukkushe pleaded not guilty, but he does not have the mitigating effect of a guilty plea. With that said, the PSR does disclose that Mr. Sukkushe takes some responsibility for his actions. The lockdown records support a finding that pre-trial conditions are also mitigating, see R. v. Marshall 2021 ONCA 344 at paras 52 and 53. According to the defence Mr. Sukkushe has been subject to 56 full days of lockdown when he was confined to his remand cell for the full day, and that he has 195 days of partial lockdown.

[6] Mr. Sukkushe led evidence that the lockdowns have lead to a tense atmosphere in the jail, and has had less food to eat. As he put it, “My time in custody has been very stressful and upsetting to me…”. While I would not describe this as significantly adverse affects of the full and partial lockdowns, I am prepared to mitigate the sentence to some degree to reflect this.

[7] I find that Mr. Sukkushe’s possession of the gun was not driven by mental health or addiction issues. The PSR suggest that Mr. Sukkushe was bullied in the shelter system, and he felt he was specifically targeted. That is the only fact upon which I could find that he possessed this gun. There is nothing which suggests this was an innocuous or benign possession, rather I find that the gun was possessed for protection. It is therefore an example of possession of a gun for true crime. Simple possession of a gun permits criminal law to intercede before someone is actually harmed, see R. v. Nur 2013 ONCA 677, 311 O.A.C. 244 per Doherty J..

[8] Cases imposing sentence for illegal possession of a firearm are unfortunately all too plentiful. From this, and as a judge sitting in both Toronto and the area around Toronto, I find that there is an epidemic of illegal gun possession in Toronto. This has led to an increase in shootings, which are now a daily feature of life in the Greater Toronto Area. This is an additional aggravating factor, see R. v. Lacasse 2015 SCC 64. Material provided by the Crown at the sentencing hearing bears this out. Toronto Police statistics outline a range of 252 down to 177 annual shootings in the 5 year period from 2009 to 2014. The number then jumps up to between 407 and 492 annual shootings from 2016 to 2021. The sheer number of shootings has gone up roughly twofold since 2014. Guns are loaded and brought into public for a purpose, namely to be discharged. This is a grave threat to public safety. In my finding this underscores the denunciatory and deterrent aspects of this sentence. I agree with Akhtar J.’s comments in R. v. McNichols 2020 ONSC 6499 that,

the unauthorised possession of firearms is a blight on this city that causes immeasurable pain and misery to all sectors of society. Those who lose loved ones or see them seriously injured suffer the traumatic effects for a lifetime.

[9] To this I would add that illegal handguns must not be seen to be part of our usual way of life. Illegal possession of handguns must not be considered normalized or routine, but rather exceptional and lethal. The Court has limited powers to assist in that societal objective, but sentencing is among them.

[10] Appellate decisions in similar cases have imposed a range of sentence from one of a conditional sentence of imprisonment of 2 years less a day (R. v. Fabbro 2021 ONCA 494), up to 40 months (R. v. Nur 2015 SCC 15). Trial courts have imposed a range of conditional sentences from 12 months, (R. v. Menigistab 2020 ONCJ 138 R. v. Canepa 2011 ONSC 1406) to 2 year conditional sentence (R. v. Hassan 2017 ONSC 4570).

[11] There is no shortage of cases which do not impose conditional sentences, see R. v. Filian Jiminez 2014 ONCA 601 (18 months jail upheld as being very low), R. v. DaSilva-Smith 2022 ONSC 6386 (21 months), 2 years less a day (R. v. Cadienhead [2015] O.J. No. 3125), R. v. Nur 2015 SCC 15 (40 months), R. v. Mahamet-Zene 2018 ONSC 1050 (40 months), R. v. Serrano 2018 ONSC 6785 (36 months), R. v. Thavakularatnam 2018 ONSC 2380 (40 months).

[12] Cases tend to fall in the lower end of the range when the mitigating circumstances include a guilty plea, brevity of the possession, evidence of mental health challenges; substance abuse issues; the weapon is found in a private dwelling; a guilty plea with attendant findings of remorse (R. v. Filian-Jimenez 2014 ONCA 601, R. v. DaSilva-Smith 2022 ONSC 6386) 601; significant up front rehabilitative work (R. v. Hassan 2017 ONSC 4570). These factors tend to reduce the moral culpability of the offender which inform the proportionality required by Parliament in s. 718.1.

[13] There are no aggravating circumstances under s. 718.2.

[14] Based on the foregoing I find that denunciation and deterrence are significant sentencing principles in this case. They must also be balanced with Mr. Sukkushe’s rehabilitation under s. 718, but denunciation and deterrence are dominant factors.

[15] Mr. Sukkushe has been in custody for 408 days, which I credit as the equivalent of 611 days.

[16] The Crown asks for sentence of 4 years less plus a weapons prohibition under s. 109 for life, and an order of forfeiture for the Sig Sauer. Mr. Mwangi argues for a 24 month Conditional Sentence with 3 years of probation.

[17] Sentencing is an individualized process, which must balance a variety of factors. In this case I would impose a sentence of 34 months less pre-trial custody. The sentence would have been 36 months, but Mr. Sukkushe’s pre-trial custody conditions mitigate the sentence downward by 2 months. From that I will credit him for 611 days, leaving a sentence of 409 days or 13 months 19 days. That will be concurrent on each charge.

[18] No party bears the burden of proving that Mr. Sukkushe should or should not receive a conditional sentence. The remaining sentence of 13 months 19 days makes Mr. Sukkushe eligible for a conditional sentence because it is custodial sentence of less than 2 years. Similarly, I find that imposing a conditional sentence would not endanger the community. I would not find that Mr. Sukkushe is at risk to re-offend. With that said, I do find that the imposition of a conditional sentence in this case is inconsistent with the fundamental principles of sentencing, namely the required deterrence and denunciation which follows Mr. Sukkushe’s conviction for bringing a loaded handgun into a government office. Conditional sentences can achieve the legislative objective of deterrence and denunciation, see R. v. Proulx (2000), 2000 SCC 5, 30 C.R. (5th) 1 S.C.C., but not in every case. I therefore find that Mr. Sukkushe’s sentence should be served in a jail and not in the community.

[19] Mr. Sukkushe is prohibited from possessing weapons for life, and he will be under probation for 12 months after his release from custody. There terms will be to:

• report within 48 hours in person, and thereafter as directed;
• take counselling as directed, and sign any forms necessary to enable the Probation office to monitor enrollment, attendance and completion of those programs;
• not to possess weapons

Released: January 11, 2023. Signed: Justice Rose