Court File and Parties

ONTARIO COURT OF JUSTICE

Date: 2023-05-17 Court File No.: Thunder Bay 210294-03

Re: His Majesty the King, Crown And: Tajae-J'Nye Samuel-Maragh, Accused

Before: Justice V. Scaramuzza

Heard: March 16, 2022, November 17, 2022, March 27, 2023, April 25, 2023

Counsel: T. Bud, for the Crown M. Quenneville, for the accused

Scaramuzza J.:

[1] On March 16, 2022, Mr. Samuel-Maragh pled guilty to:

(i) possession of a firearm knowing that he was not the holder of a licence contrary to s. 92(1) of the Criminal Code of Canada;

(ii) possession of a loaded firearm, contrary to section 95(1)(a) of the Criminal Code of Canada; and

(iii) obstruct a police officer by providing a false name, contrary to s. 129(a) of the Criminal Code of Canada.

[2] s. 92(1) is a straight indictable offence. The Crown elected to proceed by indictment on the other two charges. s. 92(1) and 95(1)(a) provide for a maximum penalty of a term of imprisonment which is not to exceed 10 years and s. 129 provides for a maximum penalty of 2 years.

[3] The following were entered into Exhibits at this sentencing hearing:

Exhibit 1 Pre-Sentence Report (“PSR”), dated July 15, 2022 Exhibit 2 Defence Materials on Sentence, which consist of: Tab 1 - Affidavit of Tajae-J’Nye Samuel-Maragh, affirmed on March 26, 2022 Tab 2 - Letter from Emerald Reeves-Hayles, dated March 23, 2023

The Facts

[4] On January 15, 2021, the police attended at 200B Sequoia to conduct a compliance check as the Thunder Bay District Housing Manager believed that the residence was taken over by drug dealers from Southern Ontario. On attendance with the police, a co-accused, Marlon McDonald attempted to climb out the second floor window. The police told Mr. McDonald not to jump and he complied.

[5] Officers entered the bathroom and saw Mr. McDonald, standing beside the toilet, attempting to flush baggies, which were seized and later to be determined to contain 5.85 g of crack cocaine and 3.65 g of fentanyl.

[6] Mr. Samuel-Maragh, along with a young person, Z.A., were sitting on a bed in an upstairs bedroom. They were texting on their phones and watching a TV screen that showed surveillance footage from cameras outside the building. The cameras were not installed by the Thunder Bay Housing Department.

[7] Scales, tin foil wrappers and plastic baggies, containing an unknown brown substance, were located in the room.

[8] Both adult males were arrested.

[9] The police searched Mr. Samuel-Maragh incident to arrest and they located $1525 in cash on him. When asked for his name and date of birth, Mr. Samuel-Maragh identified himself as “Quinton Samuel” with a date of birth of “December 16, 2003”. At the police detachment, after speaking to Mr. Samuel-Maragh’s mother, Mr. Samuel-Maragh provided his true name and date of birth.

[10] After removing Mr. Samuel-Maragh from the bedroom, the police returned to conduct a search of the room. A police officer noticed that the cold air return cover was ajar and something appeared to be inside. Inside the air return, the police located a prohibited firearm - a Smith & Wesson 40 caliber, model M & P 40c, handgun with one round in the chamber. A magazine located nearby contained several additional rounds.

[11] A fingerprint lifted from the firearm returned a match to Mr. Samuel-Maragh.

[12] The Centre of Forensic Sciences confirmed that the firearm test-fired.

[13] Mr. Samuel-Maragh did not have a Firearms Acquisition Certificate or Licence or a registration certificate for the seized firearm.

Crown's Position

[14] The Crown recommended that a custodial sentence of 3 years be imposed.

[15] The Crown argued that the key principles of deterrence and denunciation can only be achieved by a term of custody in a penitentiary. Even since the SCC struck down the mandatory minimum sentence of 3 years for first time offenders in Nur, [2015] SCC 15, Mr. Bud urged a 3-year sentence based on the matters before this court being defined as “true crime” and not regulatory in nature.

Defence Position

[16] The defence recommended that a custodial sentence of 24 months less 1 day to be served in the community, a Conditional Sentence Order (“CSO”) and probation for 24 months be imposed on top of the 5 real jail days served by Mr. Samuel-Maragh.

[17] Defence counsel argued that the rehabilitation of a young adult is the most significant sentencing objective in this matter while the principles of deterrence and denunciation are diminished. Ms. Quenneville urged that a CSO would have a punitive effect on Mr. Samuel-Maragh and would achieve the stated sentencing principles.

[18] Both the Crown and defence counsel submitted that ancillary orders of the taking of Mr. Samuel-Maragh’s DNA, a Weapons Prohibition, a Forfeiture Order and the Victim Surcharges should be imposed.

[19] Both counsel agree that a custodial sentence is required. Where they differ is the length of the custodial sentence and where it should be served - the Crown submitting 3 years in the penitentiary and the defence submitting 2 years less 1 day in the community and probation.

[20] This court’s task is to determine what is a just and appropriate sentence, specifically, whether a Conditional Sentence Order or a penitentiary term would be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2 of the CCC.

[21] If a custodial sentence of 2 years or more is imposed then as a matter of law a CSO is unavailable.

The Offender

[22] Mr. Samuel-Maragh, single, now 20 years of age, is currently unemployed and is financially supported by his parents. Mr. Samuel-Maragh lives with his mother, grandmother and brother in Innisfil, Ontario. He was actively involved in sports, mainly soccer and basketball, which were activities that his family enjoyed together.

[23] Mr. Samuel-Maragh attended a preparatory basketball secondary school where he completed Grade 12. He attended this Thornhill school even though he resided in the Durham Region with his family in order to be exposed to US Division 1 coaches and scouts. He hoped to be scouted to a Division 1 university in the US on a scholarship. On completion of high school, Mr. Samuel-Maragh was crushed when he did not receive a scholarship. He was offered full scholarships to attend at local colleges, however, he was not interested in playing basketball for any school if there was no chance of him going to the National Basketball Association. His only route to the NBA was through a Division 1 school. He did not accept any offer from local colleges.

[24] Mr. Samuel-Maragh was accepted at Centennial College for an engineering technology program and was to begin that program one week after his arrest, in January 2021. He deferred attending this program three times. He would be required to re-apply to the program if he wanted to attend.

[25] Mr. Samuel-Maragh has now been accepted into an aerospace technology program at Centennial College.

[26] Mr. Samuel-Maragh grew up in a strict household. Mr. Samuel-Maragh’s mother indicated to the PSR author that they would not allow their children to go out with friends unless they were “FAP - Friend Approved by Parent”. He had a stable upbringing.

[27] Since being granted bail, Mr. Samuel-Maragh has coached his 9 year old brother’s basketball team and is taking care of his grandmother. He tried to secure employment with Autoglass.

[28] Mr. Samuel-Maragh revealed to the PSR author that he got mixed up with a wrong crowd. He came to Thunder Bay with his friends for 2 weeks to make enough money to support himself while in school. His mother did not know where he was as he ignored her telephone calls.

[29] One of Mr. Samuel-Maragh’s former basketball coaches attributed Mr. Samuel-Maragh’s criminal behaviour due to his identity being wrapped up in basketball and when not achieving his goal of attending a Division 1 school, he became lost.

[30] Mr. Samuel-Maragh does not have any prior findings of guilt.

Purpose of Sentencing

[31] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The CCC directs judges to craft sentences which achieve these goals by imposing just sanctions which have one or more of six objectives. Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[32] Whatever sanction is imposed, it “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” In determining the sentence required in the particular circumstances of a case, a judge must take into consideration “any aggravating or mitigating circumstances relating to the offence or the offender.” In addition, a judge must bear in mind that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”, that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances,” and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Indigenous offenders: see ss. 718, 718.1 and 718.2.

[33] A sentencing judge must perform a three-way balancing act ie. the judge must balance the competing sentencing principles, the interests of the offender and the interests of the community before reaching a conclusion. The objectives of sentencing often pull in different directions.

[34] The primary objectives in this case involve specific and general deterrence and denunciation. The court must not lose sight of rehabilitation as an important principle for a young, first time, adult offender.

[35] In arriving at the appropriate sentence, a sentencing judge must take into consideration any aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating Circumstances:

[36] The aggravating circumstances in this case include the following:

(i) Mr. Samuel-Maragh possessed a loaded handgun as confirmed by his fingerprint being located on the handgun.

(ii) Mr. Samuel-Maragh stored the handgun in a careless and dangerous manner.

(iii) Mr. Samuel-Maragh did not have a Firearms Acquisition Certificate or Licence or a registration certificate for the handgun.

(iv) Several rounds of ammunition in a magazine were readily available to Mr. Samuel-Maragh.

(v) After the investigation commenced, Mr. Samuel-Maragh tried to conceal his identity by providing a false name and an incorrect date of birth to the police.

(vi) Mr. Samuel-Maragh was arrested with others in a public housing apartment unit used by intruders for drug trafficking. Fentanyl and crack cocaine along with other drug paraphernalia such as scales and packaging materials were seized by the police. When arrested, Mr. Samuel-Maragh had $1525 in cash in his possession.

Mitigating Circumstances:

[37] The mitigating factors in this case include the following:

(i) Mr. Samuel-Maragh pled guilty in advance of a trial date being set. He exhibited signs of remorse to the court by showing insight into his behaviour with his apology. He also expressed his remorse previously to the PSR author and to a family friend.

(ii) Mr. Samuel-Maragh is a first time youthful, adult offender.

(iii) There are prospects of rehabilitation for Mr. Samuel-Maragh.

(iv) Mr. Samuel-Maragh has a supportive family. He grew up in a stable environment.

Principle of Restraint

[38] Under s. 718.2(d) and (e), I must consider that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Further, all available sanctions, other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders. This is the principle of restraint.

[39] I am aware that Black offenders, especially young Black males are disproportionately incarcerated in our custodial institutions.

[40] On March 16, 2022, Mr. Samuel-Maragh’s co-accused, Marlon McDonald pled guilty before me to possession for the purpose of trafficking in cocaine, obstruct peace officer, possession of a firearm knowing that he was not the holder of a licence and possession of a loaded firearm. After a joint submission, on the possession for the purpose of trafficking in cocaine, he was sentenced to a custodial sentence of 18 months and probation for 12 months. On the other counts, he was given a concurrent sentence.

[41] I must consider parity with Mr. McDonald. This was a joint prosecution between the provincial and federal Crowns. In pleading guilty, Mr. McDonald essentially took responsibility for the illicit substances and Mr. Samuel-Maragh took responsibility for the firearm. There was a joint recommendation submitted by the Federal Crown and counsel for Mr. McDonald, which I gave substantial weight to.

[42] That is the not the case on Mr. Samuel-Maragh’s matters.

[43] In her submissions, Ms. Quenneville raised the lived experiences and effects of anti-Black racism on Mr. Samuel-Maragh. Mr. Samuel-Maragh, in his Affidavit at Exhibit 2, Tab 1, revealed his experiences growing up in the Markham & Eglinton area, an area of Toronto consisting of a predominant black population. He was “very conscious of racism or stereotypical thinking”.

[44] Although Mr. Samuel-Maragh was a good student while attending school in the Durham Region, an area with a predominant white population, he felt disadvantaged because of the colour of his skin, including being wrongly pointed out as disruptive or getting into trouble at school among his white peers. During a lunch period, for example, a group of Black students, including Mr. Samuel-Maragh were stopped by the police. The police questioned why they were not in school and insinuated that they were dealing in drugs.

[45] In the community, Mr. Samuel-Maragh became self-conscious of his race when he was with his family because they were living in a “nice neighbourhood” and felt that others were making assumptions about how a Black family with 3 children dressed in nice clothes could live in such a neighbourhood. People would ask about what Mr. Samuel-Maragh’s parents do for a living.

[46] In Morris, the Court of Appeal for Ontario stated:

Although we would not equate Black offenders with Indigenous offenders, for the purpose of section 718.2(e), the Gladue/Ipeelee jurisprudence can inform the sentencing of Black offenders in several respects: see Borde, at para. 30. Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of ant-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances. Similarly, in considering the restraint principle, courts should bear in mind well-established over- incarceration of Black offenders, particularly young male offenders. Finally, as with Indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances.

[47] This court does take judicial notice of the existence of overt and systemic anti-Black racism in Canadian society and the criminal justice system. In addition, the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario attached as Appendix “A” in Morris can be adopted. I have done so.

[48] I recognize that Mr. Samuel-Maragh has suffered anti-Black racism as he has explained.

[49] The Court of Appeal instructs that social context evidence may be used to assess an offender’s degree of personal responsibility and an offender’s experience with anti-Black racism. However, this does not impact on the seriousness or gravity of the offence. The Court states at para. 70:

When the gravity of the offence demands an emphasis on the objectives of denunciation and deterrence, the proportionality principle will most often require a disposition that includes imprisonment. Wagner J. (as he then was) observed in Lacasse, at para. 6:

[A]s in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law-abiding society

[50] Further, there must be a connection between the overt and systemic racism identified and the circumstances or events that explain or mitigate the criminal conduct in issue. Absent some connection, mitigation of sentence based simply on existence of overt or institutional racism becomes an impermissible discount based on the offender’s colour.

[51] Defence counsel argued that Mr. Samuel-Maragh’s dream of playing in the NBA via a scholarship to a Division I university has been shattered and his conduct associating with negative peers leading to the offences should be used as an explanation to mitigate sentence. This is difficult to accept. As with anyone who has noble goals and turns to criminal behaviour on failing to achieve those goals that conduct cannot be sanctioned or mitigated by a lesser sentence.

[52] In addition, Mr. Samuel-Maragh’s mother, Leann Samuel stated to the PSR author that Mr. Samuel-Maragh was “very spoiled” and a “pretty privileged child”. (see Exhibit 1, page 3). The family moved from Scarborough to the Durham Region for a better life. This is in contrast to others in Toronto who are unable to move due to financial circumstances and are forced to remain in impoverished neighbourhoods in circumstances beyond their control.

[53] Mr. Samuel-Maragh was raised in a stable and loving family. One of his brothers is in the US playing basketball. His parents provided everything that they could for him and his brothers. Mr. Samuel-Maragh recognizes this as he stated to the PSR author “he wasn’t short in anything” during his childhood and reported no instances of abuse. Ms. Samuel was very disappointed when Mr. Samuel-Maragh was arrested. She indicated that “they did not raise him like that”. She and Mr. Maragh “set up his entire life perfectly”. He was about to start college after they fully paid his tuition.

[54] In this case, there is limited evidence, if any, of a connection between anti-Black racism or systemic racism and the circumstances of these offences. I cannot come to the conclusion that the social context evidence, as led in Morris or Mr. Samuel-Maragh’s Affidavit provides support for mitigating Mr. Samuel-Maragh’s personal responsibility and culpability.

[55] Loaded gun offences are extremely serious. The lethal mix of combining a loaded firearm with drug dealing cannot be underestimated. It is dangerous - not only to the police but also to the public, including to the residents of 200B Sequoia. Sadly, too often, intruders like Mr. Samuel-Maragh have no business in the homes of others, including vulnerable tenants. There are too many of these “home takeovers” in Thunder Bay on unsuspecting tenants, many in public housing. Possessing a loaded handgun in the drug culture has a singular purpose. The holder of the handgun uses this tool as part of his business for protection - protection of himself or product (ie. drugs). Loaded handguns can only be used to intimate or to shoot and maim an unsuspecting victim. The public in Thunder Bay (or anywhere else in Canada) cannot tolerate this any longer.

[56] Justice Doherty wrote in Nur:

[51] … At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public.

[52] There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum.

[144] I was initially attracted to the idea of considering the constitutionality of the mandatory minimum as applied to cases where the gun was actually loaded and the offender had no authorization to have the gun under any circumstances in any place. Cases with those features fall more toward the true crime end of the spectrum. The mandatory minimum would more easily meet constitutional norms if those features existed.

[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.

[57] Cameras were installed on the outside of the residential complex, not by the Thunder Bay Housing Department, to view incoming persons, more than likely to view the police or potential drug purchasers. This cannot be directly attributed to Mr. Samuel-Maragh.

[58] Mr. Samuel-Maragh had a loaded, prohibited firearm that he concealed in an air vent. His fingerprint was on the firearm. He did not have a licence to possess the handgun. Mr. Samuel-Maragh had access to nearby ammunition. He obstructed the police by providing a false name and his incorrect date of birth. Mr. Samuel-Maragh was located in a residence taken over by intruders. The residence was used to traffic drugs. Narcotics of crack cocaine and fentanyl were seized. Drug paraphernalia were located. Mr. Samuel-Maragh possessed $1525 in cash.

[59] Mr. Samuel-Maragh’s moral culpability is extremely high. His criminal conduct can be defined as falling within the “true crime” category.

[60] As Justice Doherty observed “at the one end of the range stands the outlaw who carries a loaded prohibited or restricted firearm in a public place as a tool of his criminal trade. This person is engaged in truly criminal conduct and poses a real and immediate danger to the public.”

[61] While Mr. Samuel-Maragh did not carry the handgun in public, he possessed it as a tool of the criminal trade. Up until his arrest, Mr. Samuel-Maragh was dangerous.

[62] While on bail since January 19, 2021, Mr. Samuel-Maragh did not engage in any counseling, which defence counsel now argues for as part of a CSO and probation. He did not work. He did not go to school. He helped his father coaching his 9 year old brother. Defence counsel indicated that he looked after his grandmother. This was not mentioned in the PSR by Mr. Samuel-Maragh nor by his parents.

[63] The defence listed many programs that the Town of Innisfil offers and that Mr. Samuel-Maragh could benefit from. Prior to the last court date of April 25, 2023, Mr. Samuel-Maragh applied to register for the following programs with:

1. the Failure to Launch (offering life coaching, therapy, conflict in the community, life skills);

2. Norfolk County (offering employment resources on their website);

3. Canadian Mental Health Association in Simcoe County (offering mental health & addictions programs, including youth services, case management & peer support programs);

4. Uplift Black Empowering Young Minds (offering an after school peer support group to uplift lives of Black children and adolescents);

5. North Simcoe Youth Wellness Hub (offering mental health services, peer support services, education & employment services, housing support);

6. Ontario Youth Apprenticeship Program (offering specialized apprenticeship program in skilled trades); and

7. Salvation Army of Simcoe Community Church (offering a youth group once a month for peer support).

[64] He is awaiting to be accepted to one or more of the above programs.

[65] Ms. Quenneville stated that Mr. Samuel-Maragh has yet to determine which programs are suitable for him.

[66] The student for Ms. Quenneville then listed approximately 12 other programs or services offered on the Town of Innisfil’s website that Mr. Samuel-Maragh could avail himself of. I question some of the relevance or duplicitous nature of these programs to Mr. Samuel-Maragh. While all of this may be of benefit to Mr. Samuel-Maragh, he did not show any willingness prior to sentencing to engage in any of these services offered in the community. However, he may now be motivated to participate.

[67] Through some Defence inquiries, the Probation Office offers counselling, programs in anti-criminal thinking and pro-social thinking, life skills, employment-related services and access to the Canadian Mental Health Association and the John Howard Society.

[68] Ms. Quenneville indicated that similar programming is available at the Thunder Bay Correctional Centre. An inmate there could also access the services of a social worker.

[69] At the Thunder Bay District Jail, a mental health worker, psychiatrist (available once a month), a specialized-trained team and a nurse practitioner are available.

[70] While this may be interesting to know, the court has no control over where Mr. Samuel-Maragh is placed if he is sentenced to a custodial disposition. It is unlikely that Mr. Samuel-Maragh would be kept at the Thunder Bay District Jail as it is a remand facility. There is also uncertainty as to whether Mr. Samuel-Maragh would be kept at the Thunder Bay Correctional Centre if he was sentenced to a reformatory sentence. Based on what was provided, this court cannot make a recommendation.

[71] But, the essence of Ms. Quenneville’s submission is that more resources are available in the community than in custody.

[72] In response to this court’s question of what services are available in the reformatory vs. the penitentiary, the Crown sourced 4 documents from the internet titled:

1. “Rehabilitation Programs and Services for Offenders” (Provincial);

2. “Education Programs” (Federal);

3. “Walls to Bridges Courses” from 2018 - Winter 2023 (Federal);

4. “Correctional Service of Canada” (Federal);

[73] This was not helpful.

[74] Now, turning to life in the City of Thunder Bay. Thunder Bay’s population is currently estimated to be 113,000. It is the gateway to Northwestern Ontario, including access to many remote communities whether by air or ice roads in winter. The main industries include transportation, manufacturing, education, mining and forestry. There is a significant population of Indigenous Peoples who reside here. The provision of social services to the Thunder Bay population is evident to anyone driving on the downtown streets. High rates of violence are fuelled by people with addictions to alcohol and illicit substances. Some have called Thunder Bay the homicide capital of Canada. There has been an increase in serious drug activity and the influx of drug dealers from the GTA. One only needs to watch the local news on TV or open up the daily newspaper, the Chronicle Journal to learn that drugs and violence are commonplace in Thunder Bay. Shootings are occurring at an alarming rate, the most recent occurring on May 5, 2023 in broad daylight, captured on surveillance, where two sides were shooting at each other in an apartment building’s parking lot.

[75] There appears to be a trend of individuals coming to Thunder Bay and taking advantage of people with drug addictions, many being Indigenous. They trade in drugs and pry on their vulnerabilities using handguns for protection. There is an increasing number of drug traffickers taking over public housing units by using those residences to deal in drugs at the expense of the lawful tenants, many who are addicts and are paid with crumbs of narcotics. Illegal handguns are routinely used to protect those involved in the drug trade.

[76] Again, it must be noted that Thunder Bay is a gateway to many northern communities, in which this court travels to and serves. Thunder Bay becomes the source and the roadway to importing illegal substances into these remote communities. There can be no doubt that families living in these communities are broken. They are threatened and harmed by the influx of narcotics.

[77] From Lacasse although the fact that a type of crime occurs frequently in a particular community is not an aggravating factor, this is a factor a judge might take into account in balancing the sentencing objectives, including denouncing the conduct in question in the community. In the appropriate case, the court may take judicial notice of the prevalence of a crime in a community.

[78] Unlike in O’Dwyer where Justice Cole declined to take judicial notice of the “scourge of guns and drugs in Thunder Bay”, as a regular sitting justice in Thunder Bay, I do take judicial notice of the increase in drug and firearm-related offences in Thunder Bay.

[79] Mr. Bud filed a recent December 2022 Juristat article in support of his submission that:

The City of Thunder Bay has seen a significant increase of gun crime. According to Statistics Canada, the rate of victims of police reported violent firearm-related crime has increased by 101.2 percent from 2011 to 2021 and 156.9 percent from 2020 to 2021. <Firearms and violent crime in Canada, 2021 (statcan.gc.ca)>

[80] The court in O’Dwyer cautions on the use of the statistics reviewed in that article. See paras. 20-22.

[81] I give significant weight to Mr. Samuel-Maragh’s guilty pleas prior to trial. By accepting responsibility, he has saved the court valuable time which can be used for other cases. Mr. Samuel-Maragh also expressed his remorse to a family friend, Emerald Reeves-Hayles, who wrote a reference letter on his behalf. See Exhibit 2 Tab 2.

[82] In addition, on March 27, 2023, Mr. Samuel-Maragh stated to the court prior to sentencing:

I wrote this letter of apology to convey my remorsefulness for the crimes that I committed. First and foremost, I would like to apologize to the Court, Thunder Bay citizens, and especially the ones who suffer from drug addiction. As you may know, I was a lost youth and easily led down the wrong road. Since my arrest, I have taken the steps to ensure I stay on the right track. I have also educated myself on how dangerous firearm possession is, and how harmful drugs are to the community, not only in Ontario but across our country, and for me to prey on someone’s addiction for financial gain is demoralizing. I write this to express my desire to change for the better. I have let so many people down during this experience. I would like to let you know that with the decision that you make I agree with as I take full responsibility for my wrongdoings. I hope you can find a way to forgive me and see the potential for me to do better in the future.

[83] Mr. Samuel-Maragh acknowledged that he wanted to take advantage of those with drug addictions for his own financial gain.

[84] Defence counsel argued that Bill C-5, removed the mandatory minimum sentences under sections 92(3) and 95(2)(a), the latter attracting 3 years imprisonment, supports her position that Parliament intended that more CSOs be imposed to address systemic racism and the overrepresentation of Black persons in prison. While these are the intended purposes of Bill C-5, the court must still be satisfied that the risk to public safety is minimized and the sentence must keep with the fundament principles of sentencing.

[85] Ms. Quenneville relies on Desmond-Robinson, Marfo, Beharry, Jeffrey, Lewis, Senior, and Goodridge to support her position for a CSO. Other than Desmond-Robinson, these decisions are all sentencing decisions that are not binding on this court. They turn on the application of the sentencing principles to the specific facts of each case. In Desmond-Robinson, the Court of Appeal for Ontario corrected the sentencing judge in which she stated that “a CSO is outside the range affirmed by the Court of Appeal”. The appellate court disagreed with this statement of the law.

[86] The Crown relies on Marshall (sentence of 3.5 years) and Mohiadin (sentence of 3 years) to support its position in requesting a 3 year custodial sentence.

[87] In Marsan, Justice H. Pringle summarized the range of sentences for having a loaded firearm from a CSO of 2 years less 1 day to incarceration of 42 months.

[88] In a recent decision, Mesinele 2023 ONCJ 28, involving a youthful adult first offender possessing a loaded prohibited firearm, the court imposed a sentence of 34 months imprisonment.

[89] Justice Doherty noted that different judges, correctly applying the law to the exact same facts, could properly impose different but fit sentences:

I am satisfied that a trial judge, properly balancing all the factors, have sentenced the appellant to a maximum reformatory term. I am equally satisfied that another trial judge, also properly balancing the various factors, could have imposed a penitentiary sentence of up to three years.

[90] In Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at para. 127, the Supreme Court of Canada in its summary stated:

A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[91] However, imposing a CSO for possessing a loaded prohibited firearm in Thunder Bay considering Mr. Samuel-Maragh’s background, including his age and not having any findings of guilt would not meet the sentencing objectives.

[92] As stated in Proulx, “incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future”. This is the case here.

[93] I have concluded that an appropriate and just sentence for possessing a loaded prohibited handgun in Thunder Bay is between 36 to 42 months.

[94] A penitentiary term is necessary to be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2. Therefore, a CSO is not available due to the length of the sentence that will be ordered.

[95] I am mindful that the sentence that is to be imposed is not to be so harsh that it would be crushing for the rehabilitation of Mr. Samuel-Maragh. In addition, the principles of proportionality and restraint require that any sentence that is imposed is not to be unduly long or harsh. While sufficient punishment is required, no more than what is called for is to be ordered.

[96] I have carefully reviewed all the mitigating and aggravating factors.

[97] The Crown’s recommendation of 3 years is reasonable, just and totally appropriate.

[98] I have considered the principle of restraint and the principles of sentencing. I have thoroughly reflected on Mr. Samuel-Maragh’s personal circumstances and his prospects for rehabilitation, especially because of his age (turning 18 one month before his arrest and now being 20 years old).

[99] In light of this and without wanting to cause a devastating and destructive effect on Mr. Samuel-Maragh and while showing the public’s condemnation of Mr. Samuel-Maragh’s conduct through deterrence and denunciation, a significant custodial sentence is necessary.

[100] The message needs to get out that if you are similarly minded, like Mr. Samuel-Maragh, in possessing a loaded prohibited handgun and are involved in the drug business to make fast money in Thunder Bay, as a first time, youthful, adult offender, you will go to the penitentiary.

[101] On each count, Mr. Samuel-Maragh is sentenced as follows:

possession of a loaded firearm s. 95(1)(a) 30 months custody

possession of a firearm knowing that he was not the holder of a licence s. 92(1) 30 months custody concurrent

obstruct a police officer by providing a false name s. 129(a) 30 days less the 5 days of PTC (enhanced x 1.5) to 8 days = 22 days concurrent

Ancillary Orders

DNA

[102] These are secondary designated offence. Ordering the taking of DNA is discretionary.

[103] Considering it is in the best interests of the administration of justice, the nature of the offences and the surrounding circumstances including that Mr. Samuel-Maragh obstructed the police in providing a false name and date of birth and the minimal impact on your privacy, the taking of your DNA shall be ordered and entered into the DNA databank.

[104] You shall forthwith provide a sample of your DNA to the Thunder Bay Police Service.

Weapons Prohibition Order

[105] Section 109 is mandatory on the s. 92 and 95 offences.

[106] You are prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

Forfeiture Order

[107] Pursuant to s. 491, the firearm, magazine and ammunition seized will be forfeited to His Majesty the King for destruction. The seized cash of $1525 will also be forfeited.

Victim Surcharge

[108] The victim surcharges are waived as they would cause you undue hardship if they were imposed due to your unemployment.

Released: May 17, 2023 Signed: Justice V. Scaramuzza

[1] 2021 ONCA 680 at para. 123 [2] Morris, supra, at paras. 1,13, 41- 43 [3] Morris, supra, at para. 97 [4] Morris, supra, at paras. 99- 100 [5] Nur, 2013 ONCA 677 [6] Nur, supra, at para. 51 [7] As many are aware, I am from Toronto, grew up there and practiced law there. Thunder Bay is my new home. Sitting on the Bench in this court and especially when I preside in ERC (Enhanced Remand Court), a case management court dealing with in-custody accused persons, I observe that approximately 3/4 of the docket is comprised of individuals accused of drug and gun-related offences. Even though those individuals are presumed innocent, this is alarming. [8] 2015 SCC 64, 2015] 3 SCR 1089 at paras. 64, 90 and 94 [9] 2023 ONCJ 80 [10] Statistics Canada, Juristat Bulletin – Quick Fact, “Firearms and violent crime in Canada, 2021”, December 12, 2022 by Adam Cotter, Catalogue No. 85-005-X < Firearms and violent crime in Canada, 2021 (statcan.gc.ca). [11] 2022 ONCA 369 [12] 2020 ONSC 5663 [13] 2022 ONSC 4370 [14] 2022 ONSC 3828 [15] 2022 ONSC 1260 [16] [2022] O.J. No. 5811 [17] 2022 ONCJ 139 [18] 2015 ONCA 692 [19] 2021 ONCA 49 [20] 2020 ONCJ 638 at para. 29 [21] Nur, supra, at para. 109