CITATION: R. v. McPherson, 2023 ONCJ 160
DATE: April 13, 2023
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARK McPHERSON
Before Justice B. Green
Heard on January 13th and March 13th, 2023
Reasons for Judgment released on April 13th, 2023
Mr. G. Raven........................................................................................ counsel for the Crown
Ms. N. Paciocco............................................ counsel for the defendant Mr. McPherson
Green J.:
A. Introduction
[1] Mr. McPherson was arrested for several charges arising out of an investigation conducted by Durham Regional police services that commenced in May of 2022.
[2] On January 13th, 2023, Mr. McPherson entered pleas of guilty to five counts that, on May 20th, 2022, he:
Possessed a Loaded Prohibited Firearm Without Authorization contrary to section 95(1) of the Criminal Code
Possessed a Restricted Weapon While Prohibited contrary to section 117.01 of the Criminal Code
Possessed a Prohibited Device contrary to section 92(2) of the Criminal Code
Possessed Fentanyl for the Purpose of Trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act
Possessed Methamphetamine for the Purpose of Trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act
[3] I did not engage in a pretrial of this matter prior to the pleas of guilty. The case was traversed into a court where I was presiding, and I was advised that it was anticipated to be an open sentencing hearing with the crown and counsel advocating for different sentences.
[4] The crown submitted that, considering the seriousness of these crimes and the deadly nature of the drugs Mr. McPherson was trafficking, the only appropriate sentence that will address the predominant sentencing principles is a penitentiary sentence of 12 years less credit for pretrial custody. In addition, the crown emphasized that Mr. McPherson was carrying a loaded handgun as a tool of his trade that was designed as a killing machine. Its possession is antithetical to the norms and values of Canadians. A strong message must be sent to deter like-minded individuals from carrying a loaded firearm while trafficking in drugs by meting out a significant punishment.
[5] I asked counsel when Mr. McPherson pled guilty if she wanted me to order a presentence report or a Morris report to provide additional background information or to highlight any mitigating factors. Counsel indicated that she did not believe that either of these reports were necessary. Presumably, counsel did not believe that these reports would assist with providing additional information that may mitigate the sentence.
[6] Counsel described Mr. McPherson’s tragic background when he was much younger and recent events in his life that contributed to his downfall. She urged me to consider the mitigation of his guilty plea, Mr. McPherson’s potential for rehabilitation and that he can be a positive contributing member of society once he is released from custody. Counsel advocated for a sentence in the range of eight to nine years. In addition, counsel asked that any sentence that is meted out should be mitigated by the suffering Mr. McPherson endured over the past 11 months because of the terrible conditions in pretrial detention.
[7] The sentence proposed by counsel was at the bottom of the accepted range for a midlevel trafficker who possessed a substantial amount of fentanyl to sell for profit. This position did not reflect the substantially aggravating factor that Mr. McPherson was armed with a deadly, loaded weapon with an overcapacity magazine. The sentences for the drug and “true crime” firearm charges should be consecutive to denounce and deter each distinct offence.
[8] It is important to carefully review the aggravating circumstances of the offence and any mitigating circumstances of this offender, the applicable sentencing principles, and any similar precedents with respect to the applicable range of sentencing to arrive at a fair and balanced sentence.
B. Facts:
i. The offences:
[9] The circumstances of the offences were set out in an agreed statement of facts that was filed as an exhibit:
In May of 2022, Durham Police began an investigation into possible drug trafficking occurring at 91 Celina Street in the City of Oshawa after observing known drug users attending the address for brief periods of time.
Through surveillance police determined that drug users were attending unit 9, which was the residence of Mr. McPherson.
May 12, 2022
At 7:16 p.m., police observed a known drug user, Clarissa MacDonald attend the rear door of 91 Celina Street, departing 3 minutes later.
At 9:34 p.m., a male exited the rear door of 91 Celina and met a male across the street. The male who exited 91 Celina exchanged items with the male on the street.
At 9:43 p.m., another known drug user, Cassandra Blackwood was observed entering the rear of 91 Celina, exiting 2 minutes later.
Police later confirmed that the rear door of 91 Celina Street provided access to 5 units in the building.
May 13, 2022
Police observed 5 brief attendances at the rear door of 91 Celina which they believed to be indicative of drug trafficking
May 18, 2022
At 4:32 p.m., a female approached the rear of 91 Celina St. and knocked on the window to the left of the back door. Mr. McPherson let her in and then the female departed two minutes later. Police identified the window as being associated to unit 9 at 91 Celina Street.
At 4:58 p.m., a female knocked on the window for unit 9 and was let in by Mr. McPherson. She left nine minutes later.
At 6:44 p.m., a male was let inside the rear door. He left four minutes later.
At 7:16 p.m., a male was let in the rear door. He left six minutes later.
At 7:28 p.m., a male was let in the rear door. He left 13 minutes later.
At 8:05 p.m., Mr. McPherson left the building and drove away in a white Nissan Rogue with licence plate CSJF996 and went to 60 Kenneth Avenue in Oshawa. He entered the address for two minutes before driving away.
While Mr. McPherson was gone, at 8:12 p.m., a male knocked on the window of unit 9 but he was not let in the building.
After Mr. McPherson re-attended, the male from 8:12 p.m. approached him and they went inside the building. The unknown male left 10 minutes later.
Police received information from a confidential human source during the investigation that “Jay” was a black male, selling meth, fentanyl and cocaine from unit 9 at 91 Celina Street, Oshawa.
May 20, 2022
At 5:15 p.m., police observed a male let in at the rear door of 91 Celina. He left nine minutes later.
At 5:26 p.m., Mr. McPherson left the building and walked to Memorial Park. He returned in the company of 4 people and entered his building at 5:41 p.m. One of the four persons that returned with Mr. McPherson exited four minutes later.
At 5:48 p.m., a male walked to the rear door. He was let in and left two minutes later.
ARREST OF MR. MCPHERSON
Mr. McPherson left his residence at 6:46 p.m. He entered a taxi, carrying a suitcase on wheels and a backpack. He was followed to a Petro Canada gas station in Whitby, where police placed him under arrest.
Mr. McPherson was wearing a satchel at the time of his arrest that contained a 9 mm Sig Sauer handgun, loaded with 15 rounds of ammunition, in an over capacity magazine and $2,929 in Canadian currency.
In the suitcase that Mr. McPherson carried from the residence, the police found:
301.9 grams of fentanyl, 35.3 grams of cocaine and 34.7 grams of methamphetamine
2 weigh scales and hundreds of dime bags
SEARCH WARRANT at 9-91 CELINA
A warrant was executed at Mr. McPherson’s address and police located 15.6 grams of fentanyl in a safe in the bedroom.
[10] If sold by a point or a half a gram, the fentanyl that was seized had a street value of between $60,380 and $120,760. Mr. McPherson possessed hundreds of doses fentanyl to disperse as well as other highly addictive drugs, with the readily available means to traffic for a substantial profit. In the short period of time that the police were watching him, the residence that he occupied was a revolving door of brief visits consistent with trafficking.
[11] Mr. McPherson was observed by police actively peddling in poison. He was effectively a mobile trafficking operation with a suitcase full of drugs. He was armed with a remarkedly deadly, loaded weapon with an over capacity magazine. The only available inference from these facts is that he was prepared to protect himself and his product using an illegal handgun while bound by a prohibition order not to possess and weapons.
ii. Victim impact:
[12] In future, the crown should consider obtaining community victim impact statements. The residents of Durham Region are suffering considerably because of a fentanyl being trafficked in this community.
[13] Possession for the purpose of trafficking and trafficking in narcotics is not a victimless crime. In R. v. Berry, 2011 ONSC 8016 at para. 18, Justice Koke cited a decades old Supreme Court of Canada decision that powerfully described the impact of trafficking offences:
The harm to society which results from the use and trafficking in illicit drugs is enormous. The Supreme Court of Canada addressed the issue surrounding illicit drug trafficking in 1998 in the case of Pushpanathan v. Canada where Bastarache J., speaking for the majority stated at paragraphs 88 through 91:
In the face of all of this evidence, it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by the trafficking of illicit drugs. Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect the widespread harm caused by these activities.
The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.
In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra, at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (ibid., p. 91). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of Substance Abuse in Canada, supra, at p. 6).
These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.
[14] Twenty years later, trafficking in illicit drugs continues to wreak havoc across Canada, if not more so than before, because of the introduction of stronger and more lethal drugs like fentanyl. Fentanyl is a true social evil and an ongoing threat to the welfare of our community. There have been media reports detailing the devastating impact this drug has had in Durham Region, particularly in Oshawa.
[15] As a judge who presides in Oshawa, I am entitled to take judicial notice of the numbers of deaths that have been associated with this poison. Sitting in the plea court, we have heard countless reports from vulnerable addicts about friends and family members who have died from fentanyl overdoses. Charges have been withdrawn because the defendants have died from fentanyl overdoses. The hundreds of baggies that Mr. McPherson carried to disperse these lethal drugs should have been stamped with a coffin because it is a drug that leads primarily to two places, the grave or jail.
[16] Other jurists in Durham have commented on the devastating impact of fentanyl in our community. In R. v. Hillier, 2021 ONCJ 634 at para. 21, Justice Javed observed:
Courts across Canada have repeatedly discussed the perils of fentanyl and the credible risk of harm it presents to communities: R. v. Sidhu. While I did not have the benefit of hearing evidence about the impact of fentanyl in the Durham region, I have drawn on my judicial experience sitting in the Durham region for 8 years and have carefully reviewed decisions decided in this community which have undertaken this analysis. For example, in R. v. Hillier and Blain, my colleague Justice West considered evidence from Dr. Karen Woodall, from the Centre of Forensic Sciences on the nature of fentanyl and Detective Craig Hudson from the DRPS about the harm caused by fentanyl to the local Durham community. Fentanyl is a synthetic opioid which is commonly found on the street in patch and powder form. Courts have accepted that fentanyl can be up to 100 times stronger than morphine and 20-50 times stronger than heroin. Put simply, it is a devastating and deadly substance and wreaks havoc. I am persuaded by the findings of Justice West as they relate to the mischief caused by fentanyl in the Durham community. The Supreme Court has held that sentencing courts should consider the particular circumstances and needs of the community where the crime was committed: R. v. Lacasse and R. v. M. (C.A.). Justice West held that deterrence and denunciation will usually be the paramount sentencing principles when sentencing an offender for a crime involving fentanyl: at para. 148. I agree.
[17] Individuals who traffic in fentanyl and other highly addictive drugs like cocaine and meth are predators who prey on the vulnerabilities of users. They have no regard for the potential lethal consequences of their crimes. They callously engage in these insidious crimes for a profit.
[18] The users are not the only victims. Traffickers contribute to a cycle of violence and crimes in our community. Thefts, break and enters and robberies and countless other offences are committed to fund the addicts’ need for drugs. There have been multiple shootings, assaults and murders in this jurisdiction associated with drug rip-offs. A message needs to be sent to drug traffickers, especially those who choose to arm themselves, that they will receive particularly punitive sentences to denounce and deter these crimes. The lucrative benefits of trafficking will be far outweighed by the potential of the loss of their liberty for many years.
[19] While there are several aggravating factors, I must also consider Mr. McPherson’s individual circumstances, especially his potential for rehabilitation, and that this will be his first penitentiary sentence.
iii. The circumstances of the offender:
[20] Mr. McPherson grew up as a youth in Jamaica with his mother. His father moved to Canada. He was quite successful. He was employed as engineer and a social worker. He brought his son to Canada to share with him the benefits of his hard work.
[21] Mr. McPherson has had no contact with his mother since he left Jamaica. Tragically, his father died shortly after he graduated from high school. Mr. McPherson became deeply depressed and his life spiralled out of control. He began experimenting with drugs and drinking alcohol to numb the pain from the loss of his father. He became addicted to meth and cocaine.
[22] Between 2007 and 2011, when he was between the ages of 21 and 25 years old, Mr. McPherson served short periods of custody, multiple times, for various offences. He accumulated convictions for assaults, uttering threats, failing to comply with court orders, obstructing justice, mischief and failing to appear in court. However, he was able to change the path that he was following and there was a ten-year gap in his criminal record.
[23] Counsel advised that, during this time, Mr. McPherson found stable employment as a heavy equipment operator. He met his partner, and they share three sons together who range in age from 5 to 13 years old. The birth of his eldest son corresponds with the beginning of the gap in his criminal record.
[24] While Mr. McPherson enjoyed a lengthy period of stability in his life, COVID changed all of that for him. He was laid off from his job. He separated from the mother of his children. His life once again spiralled downwards, and he started using drugs to cope with his personal issues. He was homeless for a while, so he was unable to see his boys. He struggles with depression, unresolved grief over the loss of his father and feelings of anxiety. By the time he was arrested, however, part of the agreed statement of facts was an acknowledgement that he was trafficking out of his “residence”, so he had found a place to live. Mr. McPherson’s former partner remains supportive of him. She was present at the sentencing hearing, as well as a friend.
[25] In November of 2021, after a decade long hiatus from the criminal justice system, Mr. McPherson was convicted of breaching a release order, assault causing bodily harm and operating a conveyance with more that 80 mg of alcohol in 100 ml of blood. He received a sentence of 30 days time served for the breach and an additional 101 days of presentence custody for the assault causing bodily harm. He was also ordered to comply with two years of probation and a five-year weapons prohibition.
[26] Mr. McPherson was bound by a probation order and a weapons prohibition when he engaged in trafficking while armed with a loaded restricted handgun. While Mr. McPherson has several prior convictions, he has never been convicted of any related offences for guns or drugs.
[27] He is 37 years old. He stated that he wants to become a better person and a better father. In an eloquent letter that he read during the hearing; Mr. McPherson expressed remorse for committing these offences. He acknowledged the harm that he caused to the community and his family. He expressed insight into the gravity of his crimes.
[28] Mr. McPherson wants to take advantage of any programs that are available to him while he is incarcerated. He hopes to participate in courses to upgrade his education or career training. He wants to set himself up to succeed when he is released from custody. He is committed to fully investing in counseling to rehabilitate himself and address the unresolved grief and pain that he feels are the root cause of many of his problems and poor choices. He is confident that he can be a positively contributing member of society. He aspires to be a better man and father. Considering that Mr. McPherson was able to completely alter the course of his life in 2011, there is certainly hope for his rehabilitation once he is released from custody.
[29] Mr. McPherson was cooperative with the police during his arrest. He entered pleas of guilty at the first available opportunity after he retained counsel. His plea of guilty saved court resources that would have otherwise been devoted to a relatively lengthy trial. Counsel advised that Mr. McPherson was arrested with another person. Instead of trying to deflect blame, he accepted full responsibility. As a result, this plea of guilty is a significantly mitigating factor.
[30] There is an additional unusual consideration. Counsel filed Mr. McPherson’s medical records as exhibits. Mr. McPherson has been struggling with a painful, medical crisis. He has a prominent, debilitating, aggressive tumour on his jaw. The sentencing had to be adjourned because he needed extensive surgery to remove parts of his lower jaw and replace it with a muscle, tissue and bone harvested from somewhere else in his body. Mr. McPherson’s recovery from this surgery will be challenging, lengthy and he may have to deal with various complications. He is very worried about his health issues and how vulnerable he will be in any institution.
[31] Finding a balance between the seriousness of the crimes and the mitigating factors can be quite difficult. The guiding sentencing principles and reviewing any similar cases is of some assistance to arrive at a just and proportionate sentence.
C. Legal Analysis:
i. Guiding principles of sentencing:
[32] The fundamental purpose of sentencing is 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:
[1] to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
[2] to deter the offender and other persons from committing offences;
[3] to separate offenders from society, where necessary;
[4] to assist in rehabilitating offenders;
[5] to provide reparations for harm done to victims or to the community; and
[6] to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[33] Section 718.1 of the Criminal Code also provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision.
[34] Undoubtedly, in cases involving possession of loaded firearms, especially while trafficking in drugs, general deterrence and denunciation are the predominant sentencing principles.
[35] In R. v. Beharry, 2022 ONSC 4370 at paras.19 and 20, Justice Schreck observed:
The gravity of the offences committed by Mr. Beharry is significant. Like all handguns, the firearm possessed by Mr. Beharry is manufactured for the sole purpose of killing or seriously injuring human beings. It is not incidentally dangerous. Rather, its dangerousness is its very purpose. It is an instrument of death. As explained in Morris, at para. 68:
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. ... 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.
[36] Similarly, there are a multitude of decisions from Courts of Appeal and a recent decision from the Supreme Court of Canada detailing the social evils of trafficking in fentanyl. The predominant principles of sentencing for these offences are unquestionably denunciation and deterrence.
[37] While these are serious crimes, a sentence must be proportionate and responsive to the aggravating circumstances of the offence and the mitigating circumstances of the offender as opposed to unduly focusing on one or the other. As the Supreme Court explained in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13 at para. 37:
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system....
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[38] Sentencing requires a careful balancing of competing considerations to achieve a just and proportionate disposition. The Supreme Court of Canada reiterated in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) that:
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] In addition to these considerations, section 10 of the Controlled and Drugs and Substances Act, sets out guiding sentencing principles, including an emphasis on rehabilitation. It also lists statutorily aggravating factors that are present in this case:
Purpose of sentencing
(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Factors to take into consideration
(2) If a person is convicted of a designated substance offence, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person
(a) in relation to the commission of the offence,
(i) carried, used or threatened to use a weapon,
(ii) used or threatened to use violence,
[40] I must balance the aggravating features of the offences and Mr. McPherson’s sole moral blameworthiness for his choices as well as his potential for rehabilitation. Considerations unique to each individual case may tip the scales one way or the other when deciding the appropriate sentence.
[41] In this case, the nature of the substance trafficked, the impact of trafficking in fentanyl in our community, the nature of the weapon possessed by Mr. McPherson are all significant factors that tip the scales towards a sentence that will emphasize denunciation and deterrence while still considering Mr. McPherson’s potential for rehabilitation. I must consider that he has no prior related offences, he is an addict himself and he has never been sentenced to serve time in the penitentiary before.
ii. The principle of restraint:
[42] Since this will be Mr. McPherson’s first penitentiary sentence, I am mindful of the principle of restraint that is codified in section 718.2 of the Criminal Code:
(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.
[43] Recently, in R. v. Francis, 2022 ONCA 729 at para. 80, the Court of Appeal overturned a sentence and reduced it by two years because the sentencing judge had not sufficiently considered the appellant’s age and lack of record. Justice Tulloch reiterated that:
This court has repeatedly emphasized the critical role that the principle of restraint plays when sentencing a youthful, first-time offender: see e.g., R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Disher, 2020 ONCA 710 at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31. While the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence: Borde, at para. 36. Where an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed: Borde, at para. 36; Desir, at para. 31; Disher, at para. 59.
[44] Mr. McPherson is morally culpable for the choices that he made to put other vulnerable drug dependent members of our society at risk for his financial gain, all while carrying a loaded firearm. The sole purpose of that kind of gun is to kill people and, considering the over capacity magazine, to enable the holder to kill many people. Despite the lack of a related record for drug or gun offences and that he has never been to the penitentiary before, the least restrictive sanction that is appropriate in the circumstances is a lengthy penitentiary sentence to reflect the severity of his crimes.
[45] Mr. McPherson is not a young man, but that does not mean I should not exercise restraint. I have cautioned myself that his first penitentiary sentence should not be so crushing that he is left with no hope for rehabilitation and a successful reintegration into society. He has three young sons. Hopefully, he will be released while they are young enough that he can set a better example for them and be the father that they deserve. Nevertheless, the sentence must also fall within the appropriate range for similar offences and similar offenders.
iii. The principle of parity:
[46] Sentence ranges provide helpful guidance with respect to the appropriate sentence. Subsection 718.2(a) of the Criminal Code codified the long-standing principle of parity that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[47] Parity is an important and laudable objective, but each individual case is often so unique that it is difficult to find identical facts. Even when there are comparable cases, it cannot be understated that there is no "one size fits all" sentence for any offence. In R. v. Lacasse, supra at para. 54 the Court provided the following guidance:
The determination of whether a sentence is fit also requires that the sentencing objectives set out in s. 718 of the Criminal Code and the other sentencing principles set out in s. 718.2 be taken into account. Once again, however, it is up to the trial judge to properly weigh these various principles and objectives, whose relative importance will necessarily vary with the nature of the crime and the circumstances in which it was committed. The principle of parity of sentences, on which the Court of Appeal relied, is secondary to the fundamental principle of proportionality.
[48] Sentencing precedents are intended to provide guidance as opposed to dominating the sentencing process. In R. v. Rawn, 2012 ONCA 487 at paras. 29 and 30, the Ontario Court of Appeal emphasized that:
It goes without saying that a fit sentence must be ascertained on an individual basis. It is therefore inappropriate to allow the parity principle, a principle that, by definition considers another sentence imposed on another offender, to dominate the determination of a fit sentence.
In R. v. Issa (T.) (1992), 57 O.A.C. 253, this court expressed the role of the parity principle as follows, at para. 9:
So long as sentencing remains an individual process there may be sentences meted out to offenders for participation in the same offence which are justifiably disparate. [We] think that Clayton Ruby's statement in Sentencing is correct, that the rule against unreasonable disparity in sentencing "does not require equal sentences, but only understandable sentences when examined together."
[49] In R. v. Kelly, [2022] O.J. No. 4326 at paras. 35 and 36 (Ont.C.J), the Court cautioned that:
The Supreme Court of Canada has emphasized that usual ranges of sentence are neither "straitjackets" nor hard and fast rules. Rather, they are properly understood as "historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64 at paras. 56-60. There is no requirement for exceptional circumstances for a sentencing judge to impose a sentence outside the usual range: Friesen, at paras. 36-39; 111-112.
Thus, while ranges are relevant to the analysis, sentencing is best understood as an exercise of judicial discretion to individualize the sentence for a particular offender who committed particular offences, in a particular community. Proportionality remains the overarching objective: R. v. Parranto, 2021 SCC 46, at paras. 36-40; R. v. Mohamed, 2020 ONCA 163 at para. 28.
a. The gun charges:
[50] One of the leading cases with respect the range of sentences for firearms cases is the decision of R. v. Nur, 2015 SCC 15. The Supreme Court upheld the Court of Appeal’s decision in R. v. Nur, 2013 ONCA 677 citing favourably Justice Doherty’s remarks at para. 206:
Nor do my reasons 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.
[51] Sentence ranges are not static. They evolve and must be responsive to various factors including growing social awareness. Since the Nur decision, there have been many subsequent decisions that acknowledge the seriousness of gun crimes and the need for exemplary sentences, while balancing some uniquely mitigating circumstances, including social context evidence, that may mitigate the culpability of the offender.
[52] There are numerous decisions that have been released in the past few years in which offenders who have been convicted of gun related crimes have received sentences of less than two years incarceration and even conditional sentences: R. v. McLarty-Mathieu, 2022 ONCJ 498, [2022] O.J. No. 4925 (Ont.C.J.); R. v. Allegro, [2022] O.J. No. 1780 (Ont.S.C.J.); R. v. Lewis, [2022] O.J. No. 318 (Ont.C.J.); R. v. Moses, 2022 ONSC 332; R. v. Morfo, 2020 ONSC 5663, [2020] O.J. No. 4158 (Ont.S.C.J.).
[53] In R. v. Morris, 2021 ONCA 680, the Court of Appeal reviewed the range of sentences for these offences and observed at para. 131 that:
As indicated in R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d) 351, sentences at or just below the two-year mark may be appropriate for some s. 95 offences. When the sentencing judge determines that an appropriate sentence is in that range, counsel and the sentencing judge must fully explore various options which could eliminate or reduce the offender's period of actual incarceration while still giving effect to the proportionality principle. [emphasis mine]
[54] In R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No. 3409 (Ont.S.C.J.), Justice Schreck sentenced an offender who possessed a loaded prohibited gun in a vehicle to a conditional sentence. The offender was convicted after trial. He was 32 years old, and he had no criminal record.
[55] After summarizing the facts, the Court engaged in an extensive review of various precedents with respect to the sentence ranges for gun offences:
The well-established three-to-five year range that is often mentioned in s. 95 sentencing cases applies in situations where “the use and possession of the gun is associated with criminal activity, such as drug trafficking”: R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Marshall, 2014 ONCA 692, at paras. 47-48; Nur (S.C.C.), at para. 82. Lower sentences in the upper reformatory or lower penitentiary range can and have been imposed in cases in the “middle of the spectrum,” that is, where the firearm is not possessed in connection with other criminal activity: R. v. Smickle, 2013 ONCA 678, 2014 ONCA 678, 304 C.C.C. (3d) 371, at para. 30 (additional reasons at 2014 ONCA 49, 306 C.C.C. (3d) 351); R. v. Johnson, 2022 ONSC 2688, at para. 38; R. v. Shomonov, 2016 ONSC 4015, at para. 12; R. v. Downey, 2017 ONCA 789, at paras. 9-12; R. v. Dalton, 2018 ONSC 544, at para. 56; R. v. Filian-Jiminez, 2014 ONCA 601, at para. 2; Kongolo, at para. 74; Boussoulas (S.C.J.), at para. 22. [emphasis mine]
[56] Sentence ranges for gun offences have broadened since the Nur decision to reflect an awareness of various mitigating considerations. Nevertheless, Mr. McPherson must receive an exemplary sentence because his conduct falls at the “true crime” end of the spectrum. While he was bound by a weapons prohibition order, he possessed a loaded, firearm to enable him to continue a criminal enterprise, in circumstances in which he posed a significant danger to others. As a result, despite the mitigating circumstances, a period of incarceration in the range of three-to-five-years is the least restrictive sentence that is proportionate to the gravity of the firearms offences.
b. Trafficking sentence ranges:
[57] Sentence ranges for trafficking offences have been increasing in recent years in response to the devastating impact of the opioid crisis and the introduction of even more potent, deadly drugs like fentanyl.
[58] The different types of drugs that Mr. McPherson was trafficking, and the amount of fentanyl are significantly aggravating factors that necessitate a penitentiary sentence. In R. v. Parranto, 2021 SCC 46 at paras 58 and 59, The Supreme Court explained that:
As the Crown points out, "[d]rug trafficking as an offence is easily quantifiable by reference to a variety of independent factors such as volume of drugs, price, and level of commerciality" (R.F., at para. 92). Another key factor in the categorization of drug offences, both in relation to criminality and sentencing, has always been the nature of the drug at issue. The composition and dangers of the drugs trafficked may change quickly. As the harms caused by the substance speak directly to the gravity of the offence, appellate courts may step in to provide guidance to ensure sentences reflect those harms, even where the drug is relatively new. We underscore the importance of this fact because harm-based analyses are not an unfamiliar judicial exercise in the sentencing context (Friesen, at para. 114).
Further, the Court of Appeal was entitled to take the lead and consider the public health crisis in Alberta in the creation of the nine-year starting point. It is noteworthy that Alberta has one of the highest rates of opioid-related deaths and overdoses, relative to other provinces and territories (L. Belzak and J. Halverson, "The opioid crisis in Canada: a national perspective" (2018), 38 H.P.C.D.P.C. 224). As Lamer C.J. stated in M. (C.A.), at para. 91, a just and appropriate sentence may take into consideration "the needs and current conditions of and in the community". Local conditions may enter into the assessment of the gravity of the offence and militate in favour of prioritizing certain sentencing goals (Lacasse, at paras. 13 and 89). We stress that other jurisdictions are free to establish ranges or starting points that differ from that in Alberta, as any sentencing guidance should strive to reflect and be responsive to the local conditions in those jurisdictions.
[59] Similarly, in R. v. Lynch, 2022 ONCA 109, the Court of Appeal explained that the nature of the drug and the role played by the offender in the criminal enterprise are important guiding considerations:
Para. 15: It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi, 2021 ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested, 39854.
Para. 16 and 18: As the majority recognized in Parranto, at para. 70, moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to.
There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender's culpability or moral blameworthiness for choosing to traffic in that drug.
The trial judge also erroneously downplayed the respondent's role in all of these consequences when he said that the respondent was not "the representative of the principals of the trafficking enterprise", who "[produce] fentanyl as a more powerful opioid". Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent's level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it.
[60] Considering the amounts of fentanyl and the other highly addictive drugs Mr. McPherson possessed, the safe with more drugs and the deadly weapon he carried to protect his illicit enterprise, I find that he was a midlevel trafficker. The Supreme Court set out an appropriate range for sentencing these types of offenders in Parranto, supra (paras 67 and 68):
In our view, the Court of Appeal correctly intervened. We agree that the seven-year sentence imposed at first instance was demonstrably unfit. It is clear the sentencing judge misapprehended the gravity of the offence. After reviewing a selection of cases, the sentencing judge concluded the range in Alberta was five to seven years, while the range was five to nine and one-half years if other Canadian jurisdictions were taken into account. We agree with the Court of Appeal that the Alberta cases referred to by the sentencing judge were significantly factually distinct from this case.
A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years.
[61] One of the decisions the crown relied on during his submissions was cited by Supreme Court in support of the range that they set for these types of offences: R. v. Vezina, 2017 ONCJ 775. The facts were very similar to this case. The accused was on two weapons prohibition orders. He was arrested in possession of 205 grams of fentanyl as well as other drugs and drug paraphernalia. The accused was under police surveillance for suspected drug trafficking. When he was arrested, police found a stolen, loaded handgun on him. At his residence, police found methamphetamine, heroin/fentanyl and marijuana, firearms, and a sawed-off shotgun.
[62] Mr. Vezina was struggling with mental health issues. He had been self-medicating with street drugs. His sentence was mitigated because he entered a plea of guilty. Nevertheless, the Court imposed a sentence of 12 years of incarceration.
[63] While the offences were similar, a distinguishing fact was that Mr. Venzina had been convicted of drug offences in the past and he had already served a penitentiary sentence. Mr. McPherson has no related record, and this will be his first penitentiary sentence.
[64] Counsel relied on two decisions to support her position of eight to nine years. The sentence in R. v. Baldwin, [2018] O.J. No. 2447 (Ont.C.J.) was the result of a joint submission. There are numerous factors that may influence a joint submission including weaknesses in the crown’s case and other considerations. As a result, it is factually distinguishable, and the sentence was anomalous. Secondly, counsel relied on R. v. Ribble, 2019 ONCJ 640 (Ont.C.J.). This case was decided prior to the recent guidance provided by the Supreme Court of Canada in Parranto, supra, which was reflected in the position advocated by the federal crown in that case of seven to eight years. Moreover, the Court ultimately concluded that a total sentence of nine years was appropriate which is longer than the bottom end of the sentence range proposed by counsel.
[65] Similarly, the crown relied on a decision from the Court of Appeal that was factually distinguishable. The decision addressed sentencing for importing large amounts of drugs.
[66] There will be decisions that fall inside and outside the ranges set out in the appellate authorities for a multitude of reasons. However, there is nothing exceptional or unusual in this case that would justify a sentence outside the accepted sentence ranges for either the drug or gun offences.
[67] While Mr. McPherson has no related record for guns or drugs, between 2007 and 2011, he had a few prior convictions for breaches of court orders. He also had multiple convictions for violence, including an assault with a weapon, threatening and other offences. He managed to stay out of the criminal justice system for 10 years, but over the past few years, he fell back into his old ways. As noted, in November of 2021, he was convicted of failing to comply with a court order and received 30 days presentence custody for that offence as well as an impaired driving and assault causing bodily harm for which he received 101 days of presentence custody, probation for 2 years and a weapons prohibition.
[68] Mr. McPherson’s recent convictions should have been the wake-up call that he needed to get back on track, focus on his children and straighten his life up. Instead, while bound by a probation order and an order prohibiting him from possessing any weapons, he committed even more serious crimes. Clearly, the equivalent of four months of custody in the awful conditions at Central East Correctional Center and two court orders were not sufficient to specifically deter him from committing further offences.
[69] Counsel emphasized Mr. McPherson’s guilty plea to support her sentencing position. The lower end of the ranges discussed in the applicable Appellate decisions contemplate mitigated sentences that reflect a guilty plea, consideration of the principle of restraint and the offender’s potential for rehabilitation. The facts in this case support a sentence that falls within the lower end of the ranges anticipated by the Supreme Court of Canada and the Ontario Court of Appeal of 8 to 12 years for the trafficking offences and a sentence in the range 3 to 5 years for the gun charges.
[70] While Mr. McPherson’s sentence should fall within these ranges, I must be mindful of the principles of totality to ensure that the overall sentence is proportionate.
iv. Totality:
[71] Mr. McPherson plead guilty to offences that involve very different delicts. Consecutive sentences for the trafficking and gun charges would send a very strong message that traffickers will receive lengthier sentences when they choose to arm themselves with deadly weapons. The individual offences of trafficking and the possession of a loaded prohibited weapon merit separate consecutive penitentiary sentences. However, if I were to mechanically sentence him to consecutive penitentiary sentences in the distinct ranges, the total sentence could be excessive.
[72] As noted, one of the foundational principles of sentencing is proportionality that: "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Simply stated, the punishment must fit the crime. It must reflect the gravity of the offence and the moral blameworthiness of the individual offender. An important means to ensure that the overall sentence is proportionate is to consider the principle of totality. Section 718.2(c) of the Criminal Code requires me to consider that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”.
[73] In R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 42 (S.C.C.), Chief Justice Lamer explained the rationale underlying the totality principle and its nexus with proportionality:
In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D.A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".
Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, [4th ed. (Toronto: Butterworths, 1994)], at pp. 44-45:
The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.
[74] The overall sentence must be fair to the public who need protection from these crimes, and it must be fair to the offender. The period of incarceration must reflect all the sentencing goals, but the combined sentences cannot deprive Mr. McPherson of any hope for the future or unjustifiably diminish his prospects for rehabilitation. As the Court of Appeal observed in R. v. Johnson, 2012 ONCA 339, at para. 18, "where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns".
[75] It is quite challenging to attribute concurrent or consecutive sentences that truly reflect the seriousness of each individual crime and the unique circumstances of this offender.
[76] In R. v. R.B., 2013 ONCA 36, [2013] O.J. No. 278 at para. 30 (Ont.C.A.), the Court of Appeal described the best method to determine a fit sentence when sentencing an offender for more than one crime:
The proper approach to applying the principle of totality on sentencing is to first identify the most serious part of the accusations or offences made against the person that resulted in the criminal offenses he or she was charged with. Next, the court is to determine the total sentence to be imposed, and then to impose sentences with respect to each offence that they add up to the total sentence. In doing so, the sentence for each offence must properly reflect the most serious part of the overall criminal conduct and must reflect the proper sentence for that offence. At this stage the court will then decide whether a particular sentence should be consecutive or concurrent to the other sentences imposed.
[77] The drug trafficking and possession of a loaded prohibited weapon offences merit significant consecutive sentences. The additional aggravating fact of possessing a gun while prohibited should also attract a consecutive sentence. I have determined that a total sentence of 11 years incarceration balances the competing considerations of the aggravating and mitigating factors, it demonstrates restraint, and it is not so lengthy a period of incarceration that Mr. McPherson should lose hope for his future. If he works hard in the penitentiary and invests in significant counseling for substance abuse, grief, parenting and career programs, he can earn consideration for parole opportunities.
v. Summers and Downes credit:
[78] Mr. McPherson has been in custody since the date of his arrest on May 20th, 2022, for a total of 328 days. Applying the standard credit of 1 for 1.5 days to presentence custody that is the equivalent of 492 days or 1 year 4 months and 7 days.
[79] In addition to the standard credit, counsel is seeking that Mr. McPherson’s overall sentence be mitigated because of the conditions in which he served his presentence custody.
[80] In R. v. Marshall, 2021 ONCA 344 at paras. 52 and 53, the Court of Appeal discouraged the long-standing practice of specifically quantifying how much time is accredited or assigned to similar mitigating considerations like the harsh conditions in pretrial custody:
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.
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), 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 mine]
[81] There are a multitude of decisions decrying the deplorable conditions at Central East Correctional Center. Presumptively innocent inmates are routinely locked down in small cells for days on end, even weeks, isolated from their support systems and counsel. They are deprived of basic dignities like regular access to showers, clean clothes, and bedding. They aren’t regularly provided with fresh air or time outside. These systemic human rights violations in provincial remand centers are disgraceful in a free and democratic society like Canada.
[82] Jurists who mitigate sentences to reflect these harsh conditions are not “soft on crime”. Quite the contrary. The case law on this issue reflects repeated expressions of judicial condemnation of the unrelenting institutionalized abuse of vulnerable inmates.
[83] Provincial remand centers should, at the very least, uphold the United Nations’ Standard Minimum Rules for the Treatment of Prisoners otherwise referred to as the Nelson Mandela Rules.[^1] In Ontario, the government is clearly aware of the need to ameliorate the conditions in these institutions. The Correctional Services and Reintegration Act, 2018, S.O. 2018, c. 6, Sched. 2 was assented to on May 7th, 2018. The preamble states in part that:
The people of Ontario and their Government,
(a) believe in the furtherance of a just, peaceful and safe society through maximizing individual opportunities for rehabilitation and reintegration both within correctional institutions and in the community;
(c) respect the presumption of innocence and recognize the particular circumstances of individuals who are incarcerated without criminal conviction;
(d) affirm our commitment to respect the human dignity of individuals who are incarcerated or under community supervision, including by respecting the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code;
(e) believe that our correctional system must respect diversity and be responsive to the unique needs of all individuals, particularly those identifying under protected grounds in the Human Rights Code and groups that are disproportionately disadvantaged by or over-represented in our correctional system;
(f) believe that the policies, programs, practices and decisions of our correctional system must be responsive to the needs of First Nation, Inuit and Métis Peoples;
(g) affirm our obligation to provide safe and humane custody and care, including through the provision of adequate conditions of confinement and appropriate, patient-centred, equitable health care services that respect clinical independence and provide continuity of care with services provided in the community;
(h) affirm that individuals who are incarcerated or under community supervision retain the rights of all members of society except those that are necessarily removed or restricted as a consequence of confinement or sentence;
(i) affirm that only the least restrictive measures consistent with the protection of society and individual safety are used in relation to the administration of this Act;
(j) recognize the need for evidence-based programs and services to support rehabilitation and reintegration;
(k) recognize the value of recreational and cultural activities for inmates;
(l) recognize the necessity of family and community connections and supports for inmates;
(m) recognize the importance of professional support, training and a safe working environment for correctional staff;
(n) firmly believe transparency, openness, oversight and public accountability are critical to ensure that the correctional system is governed and operated in a way that is subject to the rule of law, respects individual rights and freedoms and reflects the interest of the public. [emphasis mine]
[84] It’s been almost five years since the date of assent, but the Lieutenant Governor has not proclaimed a day for this legislation to come into force. In the meantime, the mistreatment of presumptively innocent inmates continues unabated. I recognize that “it is not this Court's role to rewrite the law or to ask what law it would have enacted itself”: R. v. McColman, 2023 SCC 8 at para 50. It is, however, the role of the judiciary to act as the gatekeepers of justice to ensure that presumptively innocent inmates are not mistreated by the authorities in charge of their care just as we would address any allegations of police brutality, neglect or similar misconduct involving the treatment of detainees.
[85] The government of Ontario has already been held liable for $30 million in damages in a class action suit for the overzealous use of administrative segregation of mentally ill inmates at Toronto South Detention Centre: Francis v. Ontario, 2021 ONCA 197. The government of Ontario made concessions in that case at para. 34 that are equally applicable to repetitive, routine lockdowns:
Ontario accepts the motion judge's finding that administrative segregation for more than 15 consecutive days violates ss. 7 and 12 of the Charter. Ontario also accepts that the absence of a timely independent review process violates s. 7 of the Charter. Both concessions reflect the decision in CCLA, at paras. 2 and 68, in which this court held detention in administrative segregation for more than 15 consecutive days violated s. 12. The application judge in CCLA had held the absence of a timely independent review process violated s. 7: Canadian Civil Liberties Assn. v. Canada (Attorney General) (2017), 140 O.R. (3d) 342, [2017] O.J. No. 6592, 2017 ONSC 7491 (S.C.J.) ("CCLA (ONSC)"), at paras. 155-156, vard (2019), 144 O.R. (3d) 641, [2019] O.J. No. 1537, 2019 ONCA 243. That finding was not challenged on the appeal to this court.
[86] The Ontario Court of Appeal made very compelling remarks about the government’s treatment of the inmates in their care at paras. 72 and 73:
State conduct showing a "clear disregard" for the unconstitutional consequences of that conduct is the antithesis of good governance. As explained in Brazeau/Reddock, a finding that the state clearly disregarded the unconstitutional consequences of its actions is predicated on a finding of recklessness or wilful blindness. Both require an appreciation of the risk that the impugned state action will infringe constitutional rights. When deciding whether correctional authorities acted with a "clear disregard" for the unconstitutional consequences of their actions, it is appropriate to take into account reliable information available to correctional authorities which, as a matter of common sense and logic, sheds light on the existence and degree of the risk of unconstitutional consequences flowing from administrative segregation.
For example, there was a great deal of expert evidence speaking to the longstanding knowledge in Canada, and internationally, of the very serious harmful effects of solitary confinement, particularly on the seriously mentally ill. Similarly, the evidence was replete with studies, reports and recommendations indicating the consequences of solitary confinement fell within the meaning of cruel and unusual treatment, as the phrase is used internationally and in the Charter. Most of that information was readily available to correctional authorities and would inform their appreciation of the risk that administrative segregation in provincial jails caused physical and mental consequences falling within the meaning of cruel and unusual treatment and denied inmates procedural due process. [emphasis mine]
[87] The living conditions of inmates detained in the Central East Correctional Center and other institutions across Ontario do not meet either the internationally accepted minimum standards of care or respect any of the principles outlined in the provincial legislation. Instead, courts in this jurisdiction are routinely presented with evidence of persisting, institutionalized, human rights violations of detainees who are powerless to change how they are treated by the officials responsible for their care.
[88] The Canadian Charter of Rights and Freedoms guarantees every detainee the right to security of the person in accordance with the principles of fundamental justice and to be protected from cruel and unusual treatment. Nevertheless, Charter remedies are rarely sought for potential breaches of the detainees’ constitutionally protected rights because that would require an inmate to proceed to trial and/or potentially remain in these institutions for an even longer period, enduring these insufferable conditions. Instead, the most frequently sought remedy is for an offender’s sentence to be mitigated, as long as the aggregate sentence is not rendered inappropriate, whenever credible evidence is presented of custodial mistreatment. The only means to protect the integrity of the administration of justice is through repeated judicial denunciation of this entrenched, systemic abuse.
[89] The treatment of a convicted gun toting, drug dealer who recently experienced the conditions in pretrial detention, yet he went on to commit more serious offences, may not inspire any public concern. However, the Canadian criminal justice system must uphold and respect the human rights and dignities of all offenders. More importantly, it must be emphasized that these institutions house presumptively innocent people before they are found guilty and before they are sentenced, yet the detainees are subjected to punitive and cruel conditions. Among these detainees are individuals who may have been wrongfully accused of a crime. Guy Paul Morin was detained in this jurisdiction, and he was proven to be innocent.
[90] The inmates in CECC are powerless to prevent these injustices. The conditions in this provincial facility reflect very poorly on the administration of justice in this province. As Nelson Mandela famously said “no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”
[91] Counsel filed evidence of Mr. McPherson’s lock down records. He was locked down in his cell for 6 hours or more for 90 days in addition to other lock downs. Many of the lock downs were for successive days and attributable to “staffing shortages”. Shockingly, he was locked down from January 26th to February 12th for a variety of reasons. I cannot imagine the hopelessness, frustration, and anger he felt while being confined to a small cell with another person for 18 consecutive days.
[92] In an affidavit filed as an exhibit, Mr. McPherson described his experiences at Central East Correctional Center. His cell is seven by fifteen feet in size with a bunk bed and this cramped space is shared with another inmate. He has a sink and a toilet. He was not able to privately or properly bathe using a small sink.
[93] When they were locked down, he had to stay in this cell. He was not permitted “access to the phone and I am denied shower privileges. There is nowhere to walk around, or exercise.” Access to “sanitary bedding and clothing was also a challenge”. They only “received fresh sheets twice in the last three months. By the time the sheets were changed they were soiled and disgusting.” Due to his inability to maintain proper hygiene, he felt discomfort and shame. These lock downs adversely impacted his mental health and exacerbated his anxiety and depression. He felt very isolated from his friends, family, and his counsel.
[94] As noted earlier, Mr. McPherson was also struggling with a painful, disfiguring medical condition. He has a prominent tumour on his jaw. He had limited access to pain medication or a suitable diet for his special needs and he felt like he had no control over access to adequate medical care.
[95] The offences Mr. McPherson committed justify a substantial penalty, but that punishment should never have included institutionalized indignities and the inexcusable deprivation of basic necessities. The conditions of his pretrial detention will be taken into account, but the aggregate sentence cannot be mitigated to the extent that it is rendered inappropriate.
[96] Mr. McPherson’s sentence will be mitigated by an additional period of 4 months and 23 days. The total Summers credit and mitigation for the conditions in which he served the presentence custody will be 1 year and 9 months. His sentence will be attributed as follows:
Possession of Fentanyl for the Purpose of Trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: 1 year and 9 months PTC + 6 years and 3 months = 8 years
Possession of Methamphetamine for the Purpose of Trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act: 6 years and three months concurrent
Possessed a Loaded Prohibited Firearm Without Authorization contrary to section 95(1) of the Criminal Code: 3 years consecutive
Possess Restricted Weapon While Prohibited contrary to section 117.01 of the Criminal Code: 1 year concurrent
Possess Prohibited Device contrary to section 92(2) of the Criminal Code: 1 year concurrent
[97] But for the application of the principles of totality and restraint, I would have sentenced Mr. McPherson to an additional consecutive term of imprisonment for possessing a firearm while prohibited. I have sentenced him at the bottom end of each range to reflect the guiding principles, the mitigating factors, and his potential for rehabilitation. The remaining sentence is 9 years and 3 months in addition to his presentence custody.
D. Conclusion:
[98] Possession of firearms and gun related violence are incredibly serious, potentially devastating crimes. When coupled with trafficking in insidious drugs like fentanyl, it is essential to mete out denunciatory sentences intended to deter the scourge of gun violence and profiting off the vulnerabilities of addicts. A lengthy sentence is necessary to discourage and prevent the seemingly unrelenting pain, suffering and lost lives caused by these types of crimes.
[99] Denunciation and deterrence are not the only principles that guided this sentence. There is still hope for Mr. McPherson’s rehabilitation. I hope that he will take advantage of every program that is available to him while he is serving his penitentiary sentence so that he can be a positively contributing member of society when he is released. While the crown’s position of 12 years was reasonable, I have determined that a sentence of 11 years effectively balances all the sentencing principles. It is a heavy price to pay for the danger he posed to the members of this community.
[100] Considering Mr. McPherson’s lengthy period of incarceration, it would be an undue hardship to impose the victim fine surcharges. I will decline to order them.
[101] Pursuant to section 109 of the Criminal Code, Mr. McPherson will be subject to an order that prohibits him from possessing any of the weapons and ammunition listed in that section for life. Finally, there will be DNA orders on all eligible counts and an order forfeiting all items seized during this investigation.
[102] The warrant of remand will be endorsed that Mr. McPherson is to receive ongoing medical care including a soft food diet and pain medication as prescribed by his doctors. I will also add that he should be housed in a facility where he can receive counseling for grief, drug addiction and mental health support.
[^1]: The United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules), General Assembly Resolution 70/175, annex, adopted on 17 December 2015.