ONTARIO COURT OF JUSTICE

CITATION: R. v. Mesinele, 2023 ONCJ 28

DATE: 2023·01·04

BETWEEN:

His Majesty the King

— and —

Jarick Mesinele

Sentencing Judgment

D. Silver .................................................................................................. Counsel for the Crown

S. Peters .......................................................................................... Counsel for the Defendant

Felix J.:

Table of Contents: R. v. Mesinele

• I. Introduction
  • A. Introduction
  • B. Positions
  • C. Sentence
• II. Reasons for Sentence
  • A. Procedural Considerations
    • 1. Post Conviction Detention
  • B. Circumstances of the Offence
  • C. Background of the Defendant
  • D. Aggravating and Mitigating Factors
    • 1. Mitigating Factors
      • a) Youthful Offender / First Sentence of Jail
      • b) Remorse
      • c) Credit for Stringent Judicial Interim Release Conditions - Downes
    • 2. Aggravating Factors
      • a) Introduction
      • b) Firearms and the Greater Toronto Region and Community
      • c) “True Crime” Versus Regulatory Spectrum
    • 3. Other Factors
      • a) Anti-Black Racism and the Defendant’s Degree of Responsibility
      • b) The Impact of Anti-Black Racism on the Offender
      • c) Credit for Pre-sentence Custody
      • d) Credit for Harsh Custodial Conditions (“Duncan Credit”)
      • e) Collateral Consequences
      • f) COVID -19
  • E. Sentencing Principles and Objectives
  • F. Proportionality, Parity, Totality, Restraint
  • G. Sentencing Range – Case law
  • H. The Approach

I. Introduction

A. Introduction

[1] The defendant was convicted after trial of the following offences prosecuted by indictment: ss. 88(1), 90, 91(1), 92(1), 86(1), and 95(1) of the Criminal Code [Code]. The “Kienapple Principle” prohibits multiple convictions: R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at paras. 17- 20. The parties jointly submit that court should order a judicial stay of the s.91(1) conviction.

B. Positions

[2] The Crown seeks a sentence of between 3 and 3.5 years minus pre-sentence custody and sentencing credits assessed by this court. The Defence seeks a conditional sentence of two years less one day with probationary terms focused on rehabilitation.

C. Sentence

[3] Section 719(3.3) of the Code requires a sentencing judge to specifically address the following factors on the record: (1) the amount of time spent in pre-trial custody; (2) the term of imprisonment that would have been imposed before any credit was granted; (3) the amount of time credited; and (4) the sentence imposed: R. v. Marshall, 2021 ONCA 344.

[4] As it concerns totality and the application of consecutive and concurrent sentences, while both the s.92(1) and s.95(1) convictions are punishable by a jail sentence up to ten years, I identify the s.95(1) conviction as the most serious offence for the purpose of sentencing.

[5] There is an epidemic of firearm-related crime in the Greater Toronto area. As a jurist, I may take judicial notice of the prevalence of this problem. For reasons I will outline in this judgment, I say that sentences for the possession of illegal firearms should increase.

[6] Notwithstanding this view, I find that the mitigating factors drive me to the conclusion that a fit and proportionate sentence for this offence, and this offender, is two years and ten months jail on the s.95(1) conviction. For the reasons set out in this written judgment, I direct the clerk of the court to record the following sentence in days on the Information and the warrant of committal:[^1]

Count	Offence	Sentence
s.95(1)	Possession of loaded prohibited firearm	• 1,030 days jail • minus PSC of 54 days (36 actual days x 1.5) • minus 120 days “Downes credit” Leaving a jail sentence of 856 days to serve • DNA – s.95(1) is a generic secondary designated offence, prosecuted by indictment with a maximum penalty of 5 years or more as defined in s.487.04 of the Code. • Prohibition Order, s.109 of the Code, for 10 years upon the defendant’s release from prison for the items listed in s.109(2)(a) pursuant to s.109(2)(ii), and life in relation to the items listed in 109(2)(b).
s.92(1)	Possession of prohibited firearm knowing its possession is unauthorized	730 days jail concurrent to the convictions on all other counts.
s.91(1)	Unauthorized Possession of prohibited firearm	Conditional Stay
s.90	Carry concealed weapon	180 days concurrent to the convictions on all other counts.
s.86	Careless use	180 days concurrent to the convictions on all other counts.
s.88	Weapons Dangerous	180 days concurrent to the convictions on all other counts.

[7] I waive the victim surcharge as the defendant has no status in Canada, has not legally worked in Canada, is unlikely to work in the future, and may be subject to immigration detention and deportation.

II. Reasons for Sentence

A. Procedural Considerations

1. Post Conviction Detention

[8] On December 6th, 2022 I provided a written judgment dismissing the Charter application and found the defendant guilty. A sentencing date in late January was set. Subsequent to the acquisition of the sentencing date, the Crown Attorney advised the court of new and important information about the defendant’s immigration status. The Crown Attorney gave notice that the Crown would apply to vacate the defendant’s judicial interim release order pursuant to s.523(2) of the Code given primary and tertiary ground concerns.

[9] I adjourned the case to the late afternoon of the following day for the purpose of allowing the parties to prepare for the hearing. At the hearing, the Crown Attorney submitted that both the Crown and Defence were under a misapprehension as to the defendant’s immigration status at the bail hearing stage – namely that the defendant had legal residency in Canada. Recent information[^2] from the officer in charge of the case and an immigration officer revealed that this information was not accurate. The defendant had no status in Canada, and was subject to a removal order. As for the tertiary grounds, (the central focus of the bail hearing at first instance), the Crown cited the finding of guilt and the consequential displacement of the presumption of innocence. Defence counsel submitted that the defendant had performed well on bail and that release should be maintained. Defence counsel cited efforts in support of electronic monitoring as supportive of maintaining release.

[10] On Dec 7th I ordered the detention of the defendant pursuant to ss. 523(1)(b)(ii) and 523(2)(c)(iii) of the Code. I immediately provided brief oral reasons for revoking the defendant’s judicial interim release. I cited my consideration of recent guidance on the proper approach to judicial interim release from the Supreme Court of Canada (R. v. Antic, 2017 SCC 27; R. v. Zora, 2020 SCC 14). I explained the change in circumstances including the defendant’s immigration status. I expressed concern about the defendant’s lack of status and the potential for him to leave the jurisdiction. I expressed concern about the public perception of the criminal justice system and judicial interim release provisions. In arriving at my decision, I found guidance in a decision of T. Ducharme J. in R. v. Green, 2006 27306 (ON SC), [2006] O.J. No 3240 (S.C.). I accept that a conviction at trial does not inevitably lead to detention. I also accept that bail on non-s.469 offences should ordinarily continue. I found that the Crown had demonstrated the cause required as it concerned both the primary and tertiary grounds. I revoked the defendant’s judicial interim release order given the primary and tertiary ground concerns.

[11] During my decision I expressed one caveat by way of guidance to Defence counsel. I explained that the Code permitted me to consider any future plan for release notwithstanding the revocation of bail. I explained that the Code permitted me to consider a better plan if presented and the defendant’s detention would be re-considered: R. v. Passera, 2017 ONCA 308; R. v. Ali, 2020 ONCA 566.

[12] Thereafter, I changed the original sentencing date in late January 2023 to the first available date in my schedule[^3] for the purpose of addressing the defendant’s sentencing hearing in an expedited fashion. On December 19th, 2022 I received submissions. On the first available court date thereafter, I rendered sentence.[^4]

B. Circumstances of the Offence

[13] I have provided a detailed analysis of my findings in my judgment at trial. In sum, the police investigated a motor vehicle for highway traffic reasons. During the investigation the police acquired grounds to search the motor vehicle and the occupants pursuant to the Cannabis Control Act, 2017, S.O. 2017, c.26, sch.1. The defendant was a passenger in the vehicle. During a brief pat down search, a loaded prohibited firearm was found in his waistband.

C. Background of the Defendant

[14] The pre-sentence report and the submissions of Defence counsel properly address the background of the defendant.

[15] The defendant is a youthful first time adult offender. He is originally from the Collectivity of Saint Martin in the Caribbean.

[16] The defendant was nineteen years old on the date of the offence. He arrived in Canada in October 2015 and lived with his mother and siblings in the Toronto area. He lives with his mother and siblings. He has not been able to acquire sustained legal employment because of his immigration status and his judicial interim release conditions.

[17] The defendant has recently completed his high school education. He provides support for his younger siblings and indirectly supports his mother in caring for the family. The defendant does not appear to suffer from any mental health or addiction issue.

[18] I find that the defendant has strong support from his mother, family, and girlfriend. There is nothing unusual in his background.

D. Aggravating and Mitigating Factors

[19] Section 718.2 of the Code recognizes that sentences should be increased or reduced having regard to relevant aggravating or mitigating factors relating to the offence or the offender.

1. Mitigating Factors

a) Youthful Offender / First Sentence of Jail

[20] The defendant is a youthful adult first offender being sentenced to incarceration for the first time. Criminal law sentencing principles demand that the first jail sentence be proportionate, tailored, and the minimum necessary to achieve the sentencing objectives given the criminal law principle of restraint: R. v. Francis, 2022 ONCA 729; R. v. Batisse, 2009 ONCA 114; R. v. Borde, 2003 4187 (ON CA), [2003] O.J. No. 354(Q.L.)(C.A.)[Borde]; R. v. Priest (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.)

b) Remorse

[21] Defence counsel cites the conduct of the trial as evidence of remorse. Defence counsel submits that the defendant instructed counsel to make concessions and focus on a narrow Charter issue. With the Charter argument dismissed, the defendant now accepts his conviction. I do not totally agree with Defence counsel’s characterization of the trial. The Charter application and materials contained allegations that the investigating officer lied and fabricated evidence – falsely in my view. Further, the prosecution case on possession was strong. That these allegations were made is not an aggravating factor. But it is certainly not mitigating.

[22] I find that the defendant was remorseful when speaking to the PSR author. In a detailed allocution in court, the defendant expressed clear remorse and insight into the offence and the impact on his family – particularly his mother. The defendant also recognized the impact of his conduct on the safety of the community. He specifically acknowledged the impact on his mother. He recognized how hard his mother worked to assist him in this country. He cited a number of (unspecified) poor decisions enroute to the circumstances of the offence.

[23] As the person who had the opportunity to sit in court and listen to the defendant’s impressive statement, I am satisfied that the defendant is sincerely remorseful and demonstrates clear insight into his conduct. It is partly for this reason that I have mitigated the sentence.

c) Credit for Stringent Judicial Interim Release Conditions - Downes

[24] The defendant seeks credit for stringent release conditions pursuant to R v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321. A sentencing judge must consider the mitigating circumstance of time spent under stringent bail conditions: Downes, at paras 26-33; R. v. Bullens, 2021 ONCA 421.

[25] Pre-trial bail may be conceived as a mitigating factor on sentence because stringent bail conditions can be punitive like a custodial sentence: R. v. C.C. 2021 ONCA 600, at para. 4 [C.C.]; R. v. Joseph, 2020 ONCA 733, at para. 108.

[26] There is no mathematical formula. The sentencing judge must review the relevant case-specific factors and explain what credit (if any) is appropriate: R. v. Dodman, 2021 ONCA 543, at para. 10; Downes, at para. 33; R v. Phronimadis, [2006] O.J. No 3993 (C.A.). It is acceptable to assign a particular “credit” or simply consider the circumstance in arriving at the overall sentence: C.C., at para. 5.

[27] Defence counsel submits that the bail terms had a significant impact on the defendant and his mother for a lengthy period of time. No evidentiary foundation focused on the impact of the bail terms was presented. The evidentiary foundation is weak: R. v. Lewis, 2021 ONCA 597; R. v. Adamson, 2018 ONCA 678. Nevertheless, given the information I received during the revocation hearing I believe that I have sufficient foundation to exercise my discretion to accord some credit. I was able to review the bail terms, and consider the age of the defendant, his background, and the unchallenged record around the family circumstances. In arriving at this decision, I have not ignored the evidence of a potential breach of the bail terms founded upon statements made by the defendant’s mother. Given the record, I decline to conclude that the defendant must have breached his bail terms. I decline to draw an adverse finding as well.

[28] In any event, only modest recognition of these circumstances is appropriate. The defendant was alleged to have possessed a loaded firearm in his waistband. He was granted judicial interim release with his mother as surety on a modest sum of $3500.00 no deposit. In my respectful view, given the learned Justice of the Peace determined that release was appropriate, strict terms were necessary having regard to scourge of illegal firearm crime in the Greater Toronto community and the tertiary grounds. I credit the defendant with 120 days given the circumstances of his judicial interim release.

2. Aggravating Factors

a) Introduction

[29] Defence counsel submits that the defendant’s conduct is in the “middle of the spectrum” between “true crime” and regulatory offences. Defence counsel also submits that it is mitigating that the defendant’s possession of the firearm was not associated with other crimes. Defence counsel cited other cases in support of these propositions. I fundamentally disagree with these propositions. As such, I have a responsibility to clearly explain my position.

b) Firearms and the Greater Toronto Region and Community

[30] In a recent decision I addressed why the illegal possession of firearms was an aggravating circumstance: R. v. Rudder, 2022 ONCJ 367. I repeat the broad conclusion at paragraphs 47 to 50:

47 For decades, countless courts have emphasized the societal harm associated with the possession and use of illegal firearms:(A selection of these cases includes, Nur, (Moldaver, J in dissent) at paras. 131 and 136; R. v. Brown, 2010 ONCA 745 at para. 14; R. v. Danvers (2005), 2005 30044 (ON CA), 199 CCC (3d) 490 (Ont. C.A.) at paras. 77-78; R. v. Martin, 2022 ONSC 2354, at para. 6; R. v. Donison, 2022 ONSC 741, at paras. 32, 46-49; R. v. Chizanga and Meredith, 2020 ONSC 4647, at paras. 5-14,18-20; R. v. St. Clair, 2018 ONSC 7028, at para. 47; R. v. Kawal, 2018 ONSC 7531, at paras. 11-12; R. v. Thavakularatnam, 2018 ONSC 2380, at para. 21; R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.) at para. 25;

48 As a jurist living in the GTAA, I may take notice of the number of violent crimes, shootings, and murders associated with illegal firearms: R. v. Lacasse, 2015 SCC 64, at paras. 11,12, 89-90. I may also observe that on May 30th, 2022, the Federal Government tabled new gun control legislation seeking to limit access to handguns. The issue of illegal firearms is topical. It is being discussed many communities in Toronto. It is being discussed in the news media. It is being discussed on social media. It is being discussed in coffee shops and restaurants. The community has no tolerance for illegal handguns.

49 While the mandatory minimum sentence is no longer available, at paragraph 82 in Nur, Justice McLaughlin suggested that a three year sentence may be appropriate for the vast majority of "true crime" possessions. I also recognize that sentence ranges are simply collected summaries of minimum and maximum sentences: Lacasse, at para. 57.

50 In my view, seven years later, given the persistent problem with illegal firearms in the Toronto area, higher sentences should be the norm. In my view, people in Toronto and the surrounding locales have little tolerance for "true crime" possession of loaded illegal firearms and the attendant criminal offences that result. To use the local vernacular -- people are "fed up" with gun crime. I am entitled to take judicial notice of this sentiment in my community.

[31] As I indicated in Rudder, many courts have emphasized the toll that firearms-related crime exacts on the broad community. I suggest that courts should also recognize that racialized communities are part of this broad community. Perhaps, along with taking judicial notice of the prevalence of anti-Black racism per Morris, it is also time to recognize that persons in racialized communities have no tolerance for the firearms-related crime plaguing their communities. Persons living in all communities reject firearms-related crime. Persons living in all communities are entitled to the protection of the law and a safe community. Surely such observations are not limited to Judges who are racialized and who share a similar background and community as the defendant.

[32] I say that Judges are able to absorb media sources and take notice of a crisis of firearms-related crime in the Greater Toronto area. I take judicial notice of the prevalent shootings, murders, and violent crime extant. I join the community of Judges who have addressed this issue.

c) “True Crime” Versus Regulatory Spectrum

[33] During the trial, there was no evidence directed at why the defendant was carrying a loaded firearm in his waistband. During the defendant’s allocution he mentioned a series of poor decisions -- but nothing specific. Defence counsel submitted that the defendant lived in Scarborough and had been stabbed. But there is no nexus between this circumstance and the crime before the court.

[34] Defence counsel prominently notes that the defendant’s possession of the loaded firearm in this case was unassociated to any other crime. I disagree with the submission that this is a mitigating factor. Nor do I accept the suggestion that the “true crime spectrum” of firearms offences requires additional acts or crimes. I do not see much point in characterizing “simple” possession of an illegal firearm as somehow less serious than other forms of possession, or so-called “use” offences. In my view, the Supreme Court of Canada squarely addressed this notion in R. v. Nur, 2015 SCC 15, at paragraphs 137 - 140:

137 Courts have repeatedly emphasized the inherent danger associated with these types of firearms. In R. v. Elliston, 2010 ONSC 6492, 225 C.R.R. (2d) 109, Aston J. rejected the argument that simple possession of a prohibited or restricted firearm, absent a harmful outcome, is insufficient to warrant an exemplary sentence:

The applicant submits that there are no actual adverse consequences that necessarily flow from the criminal conduct captured by s. 95 because the defined offence is simply the possession of the firearm as opposed to its actual use. It is true that adverse consequences do not necessarily flow from possession of a loaded handgun, but sometimes they do. And, because the risk is so grave that people will be seriously injured or killed, even when discharging the gun is not intentional, the gravity of the offence of simply possessing the weapon should not be underestimated ... . [Emphasis in original; para. 15.]

Similarly, in R. v. Chin, 2009 ABCA 226, 457 A.R. 233, the Alberta Court of Appeal observed that "[m]ere possession of loaded firearms is inherently dangerous" (para. 10). The court underscored the reality that "[w]hen such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away" (ibid.).

138 Given this inherent danger, it was open to Parliament to conclude that simple possession of a loaded or readily loaded restricted or prohibited firearm should attract a significant mandatory custodial sentence. As the Minister of Justice stated when introducing the 2008 amendments to s. 95, "illegal possession of these firearms is becoming a growing concern" and "police especially are interested in the higher mandatory minimums for the possession of loaded or restricted firearms": House of Commons Debates, vol. 141, No. 33, 1st Sess., 39th Parl., June 5, 2006, at p. 1941 (emphasis added). Adding further elements to the offence beyond simple possession would, in my view, unduly limit the application of the mandatory minimums, and thereby undermine Parliament's objective to get dangerous weapons off the streets before they generate a specific risk of harm.

139 This is borne out by the committee testimony of Chief Blair, who stressed the importance of empowering police to target possession before a specific risk of harm materializes:

If you're not a police or security professional in the city of Toronto, the only reason to carry a loaded handgun in our streets is to kill people. When we apprehend those individuals for those offences who are in possession of those guns, we need to be able to intervene at that point. It is a significant and serious enough trigger that the individual represents an overwhelming threat to public safety, and the criminal justice system has to be able to deal effectively with that individual. [Emphasis added.]

(Standing Committee on Justice and Human Rights, No. 34, at p. 4)

Chief Blair further noted that heightened mandatory minimums would play a vital role in deterring this dangerous conduct:

... there is certainly a perception of a lack of consequences for those very serious offences, and the sentences that people have been receiving for carrying firearms are more reflective of the carrying of a loaded handgun in the city of Toronto as if it were a regulatory problem as opposed to a significant public safety problem.

... I believe a rational person would be deterred by two things: first of all, the likelihood of being caught; and when caught, suffering with real consequences for their actions. I think both of those things would deter a rational person. [ibid., at pp. 3 and 8]

140 Based on this compelling testimony, Parliament chose to punish simple possession with significant custodial penalties, while leaving open the option of summary proceedings for the licensing-type offences about which the majority is rightly concerned. I would respect that legislative choice. In my view, sending our elected representatives back to the drawing board on s. 95 would impede the goals of deterring and denouncing the unlawful possession of deadly weapons and keeping them out of the hands of those who would use them as instruments of intimidation, death, and destruction.

[35] As noted by the Supreme Court of Canada – “simple” possession of an illegal loaded firearm is a highly concerning and aggravating circumstance on its own. Where a person in the Greater Toronto region choses to illegally possess a loaded firearm, such a circumstance is highly aggravating. Period. All illegal firearms-related crimes have a common antecedent – the acquisition and possession of an illegal firearm. The aggravating circumstance inherent in possession of the firearm is addressed by the sentencing approach to this crime.

[36] I do not need to rely on the defendant’s statements at sentencing about a series of poor decisions leading to his criminality. The illegal possession of a loaded firearm reasonably mandates a suspicion that possession is in aide of another criminal object. But the defendant may not be additionally punished on the basis of suspicion. It is already incorporated into the rationale for the predominant sentencing approach to such crimes – incarceration.

[37] It is aggravating that the defendant personally possessed a loaded illegal firearm in a vehicle on Queen Street in Toronto. In addition to the risk he chose to assume for himself, he placed the other two occupants in the vehicle at risk. He placed the investigating officers at risk. He subjected persons passing by on busy Queen street at risk.

[38] Additional aggravating features such as brandishing the firearm, discharging the firearm, or using the firearm to commit other criminal offences (e.g., robbery, drug trafficking), may provoke additional criminal charges or potentially an increased sentence. Where those factors are present, a sentencing court must clearly address those factors and explain if they aggravate the sentence. Where such factors are absent – this case -- it is not a mitigating factor. It is simply the absence of additional aggravating factors to evaluate.

[39] This is why I may use common sense, logic, and life experience to conclude that the defendant’s offence is a “true crime” spectrum of possession rather than a regulatory infraction: Nur, at paras. 5, 82; R. v. Morris, 2021 ONCA 680, at para. 71[Morris]; R. v. Mohiadin, 2021 ONCA 122, at para. 12; R. v. Beharry, 2022 ONSC 4370, at paras 20-24; R. v. Mansingh, 2017 ONCA 68, at paras. 24-25; R. v. Ellis, 2016 ONCA 598, at paras. 78-80; R. v. Marshall, 2015 ONCA 692, at paras. 47-49; R. v. Doucette, 2015 ONCA 583, at paras. 59-60; R. v. Dulfour, 2015 ONCA 426, at para. 8. That other jurists have assigned this moniker to circumstances where the illegal possession of the firearm is linked to other aggravating circumstances (e.g., trafficking in drugs), does not mean that it does not apply to so-called “simple” possession of firearms. The defendant is not a licenced handgun owner who forgot to renew his licence. He is not a licenced handgun owner who improperly stored his firearm. He is not a licenced handgun owner who took a circuitous route to a gun range in violation of the permission provided by the chief firearms officer. The defendant is an unlicenced person who chose to travel in a vehicle with two other persons while armed with a loaded illegal firearm concealed in his waistband.

[40] An illegal firearm is not a utilitarian device like a knife, baseball bat, or golf club. There is no such thing as innocent possession of an illegal firearm. There is no circumstance where the defendant would be legally permitted to possess a loaded firearm in his waistband. Unlicensed possession of an unregistered firearm (handgun) is a criminal offence in every circumstance, no matter the reason. This is why I find the defendant’s possession to be at the “true crime” spectrum rather than the regulatory-type infraction spectrum of offences.

3. Other Factors

a) Anti-Black Racism and the Defendant’s Degree of Responsibility

[41] In R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal comprehensively addressed the evaluation of social context evidence and how such evidence might mitigate sentence. I rely on the guidance provided in paragraph 13 of the decision:

PRINCIPAL CONCLUSIONS

13 For the reasons set out below, we come to the following conclusions:

• The trial judge's task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;

• Social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;

• The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender's degree of personal responsibility, an offender's experience with anti-Black racism does not impact on the seriousness or gravity of the offence;

• Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;

• Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;

• The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.

[42] I may take judicial notice of the existence of overt and systemic anti-Black racism in Canadian society and the criminal justice system: Morris, paras. 1, 13, 41-43. Further, as properly conceded by the Crown Attorney, I have adopted and absorbed the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario attached as appendix “A” to R v. Morris, 2018 ONSC 5186. I now turn to the sentencing record and assess the impact of these issues on the defendant.

b) The Impact of Anti-Black Racism on the Offender

[43] A sentencing court must always take into consideration the offender’s background and life experience when assessing moral responsibility and sentencing options: Morris, at paras. 88-96. As the Court explained at paragraph 87:

(b) Proportionality: The Offender's Degree of Responsibility

87 While we do not agree that evidence of the impact of anti-Black racism on an offender can diminish the seriousness of the offence, or that systemic inequalities diminish the court's authority, or indeed, its obligation to denounce serious criminal conduct, we do accept that evidence of anti-Black racism and its impact on the specific offender can be an important consideration when determining the appropriate sentence. [Emphasis added].

[44] The defendant is not required to demonstrate a direct causal link between the sentencing offence and the impact of anti-Black racism to demonstrate mitigation: Morris, at para. 96. But the Court cautioned, at paragraph 97, that some connection was required:

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

[45] The trial judge in Morris received evidence of this connection: Morris, at paras. 98-101. In this case, there is limited evidence of a connection between anti-Black racism or systemic racism and the circumstances of the offence.

[46] The defendant has been in Canada for just over 5 years. Canada provided him with shelter as a refugee claimant and under humanitarian and compassioned grounds. The defendant has not had any encounter with the criminal justice system in the past, so the impact of systemic racism in the criminal justice system has not impacted his moral responsibility.

[47] Defence counsel cites the defendant’s self-report that the defendant was stabbed while living in a “rough” neighbourhood in Scarborough. I may take some limited judicial notice of a community I grew up in for fifteen years. But apart from that experience, there is no evidence of the conditions of the neighbourhood in question. There is no evidence of the proximity of the stabbing to the offence before the court. There is no evidence that the defendant armed himself in response to the stabbing. I conclude that the social context evidence provides minimal support for mitigating the defendant’s personal responsibility and culpability: Morris, at paras. 99-100.

c) Credit for Pre-sentence Custody

[48] The parties jointly suggest that the defendant receive the maximum statutory enhanced credit for this pre-sentence custody. I agree. I credit the defendant with 1.5 days credit for each day of his pre-trial detention pursuant to s. 719(3.1) of the Code: R. v. Summers, 2014 SCC 26, at paras. 7, 34, 68-80, affirming, 2013 ONCA 147.

[49] Defence counsel advises that the defendant was subject to pre-trial detention for eight days prior to receiving judicial interim release. I also credit the defendant with twenty-eight days between December 7th to January 4th, 2023. The total credit number of pre-sentence custody days is 36. The total pre-sentence credit is 54 days.

d) Credit for Harsh Custodial Conditions (“Duncan Credit”)

[50] The defendant has not requested consideration of “Duncan Credit” in relation to his pre-trial detention. There is no evidence of “particularly harsh pre-sentence incarceration conditions” or the impact on the defendant”: R. v. Duncan, 2016 ONCA 754, at para. 6. There is no evidence of lockdown conditions or the adverse impact on the defendant: R. v. Rajmoolie, 2020 ONCA 791, at paras 14-16; R. v. Omoragbon, 2020 ONCA 336, at para. 32; R. v. Henry, 2016 ONCA 873, at para. 9. Without foundational evidence of the actual conditions, it is difficult to infer and recognize even some “self-evident impact”: R. v. Bristol, 2021 ONCA 599, at para. 11. I decline to apply any “Duncan Credit”.

e) Collateral Consequences

[51] A proportionate sentence may require an examination of the collateral consequences including those consequences that arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47[Suter]. A collateral consequence is not necessarily aggravating or mitigating per s. 718.2(a) of the Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender: Suter, at para. 48.

[52] Collateral consequences are integrally connected to the goal of an individualized proportionate sentence as the focus concerns whether the impact of the sentence would have a more significant impact on the offender because of the offender’s circumstances: Suter, at para. 48. In determining the weight of this factor there is no rigid formula or test involved; But it is important not to overemphasize this factor, and risk imposing a disproportionate sentence: Suter, at para. 56.

[53] The most significant collateral consequence concerns the defendant’s immigration prospects. Counsel jointly investigated the issue and provided information to the court in support of this issue.[^5] Defence counsel submits that no final conclusion about the defendant’s immigration prospects is available to this court given the record. I agree.

[54] Defence counsel submits that the conviction may have a severe impact on the defendant’s immigration prospects. While there no evidence[^6] detailing the immigration consequences associated with sentencing the defendant, given the application of the Immigration and Refugee Protection Act S.C. 2001, c.27 [IRPA], and the investigation of the defendant’s circumstances provided by Defence counsel, I am satisfied that there could be significant immigration consequences visited upon the defendant. I am generally aware that custodial sentences over 6 months may have an impact on what, if any, procedural protections are available to the defendant.

[55] On the record produced, notwithstanding the fact that that I may not assess the merit of any immigration application, I am satisfied that the potential immigration consequences are serious.

[56] In some cases, a sentencing court can use creative sentencing approaches to mitigate the impact of immigration consequences. For example, I have previously sentenced persons with collateral immigration issues to just less than 6 months jail where the imposition of a fit and proportionate (but longer) jail sentence, would result in a disproportionate sentence. On other occasions, I have even imposed two consecutive sentences of less than six months given the collateral immigration consequences. These cases obviously rest on the record produced on sentencing and the unique and specific circumstances of the offender. In this case, I find it would be a perversion of both the Code and the IRPA to attempt a similar approach given the guidance of several cases.

[57] In R. v. McKenzie, 2017 ONCA 128, at paragraph 34, the Court provided guidance concerning the procedural approach to the collateral consequences associated with immigration status and noted that Wagner J. in R. v. Pham, 2013 SCC 15 cautioned that the immigration consequences must not lead to a separate sentencing scheme with ‘a de facto if not de jure’ range of sentencing options where deportation is a risk.

[58] In R. v. Mohammed, 2016 ONCA 678, at paragraph 3, the Court declined to impose seven sentences of six months each as this would be an “. . . artificial way of avoiding Parliament’s intent with respect to serious crimes committed by persons who immigrated to Canada”.

[59] In R. v. Badwar, 2011 ONCA 266, the appellant sought to realign the structure of his sentence on two criminal convictions to circumvent the provisions of the IRPA. The Court emphasized at paragraph 45 that “Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration”.

[60] Finally, I have also received guidance from the Court in in R. v. B. (R.), 2013 ONCA 36 at paragraphs 23-31.

[61] I have outlined in this written judgment why sentences for possession of illegal firearms should increase. I have also outlined the mitigating factors in this case and why I am sentencing the defendant to a much lower sentence. I have determined that a fit and proportionate sentence is two years and ten months jail. Collateral consequences and in particular immigration consequences cannot operate to subvert the court’s observance of the fundamental purposes and principles of sentencing and the goal of a proportionate sentence. There is no principled way to creatively sentence the defendant to mitigate the impact on immigration matters.

f) COVID -19

[62] I am able to take judicial notice of the COVID-19 health pandemic. As a sitting judge in Old City Hall throughout the pandemic, I am generally aware of how the COVID-19 pandemic has impacted incarcerated accused persons. I have taken this into consideration in arriving at my ultimate conclusion as to a fit and proportionate sentence.

E. Sentencing Principles and Objectives

[63] Section 718 of the Code states that the fundamental purpose of sentencing is to protect society, prevent crime, and promote respect for the law. With the aim of maintaining a just, peaceful, and safe society, the court must consider sanctions with certain objectives. In particular, it is important to denounce the defendant’s unlawful conduct, deter the defendant and others, separate the defendant from society, and assist the defendant with rehabilitation given the immigration consequences are not pre-determined. Thus, the central focus must be denunciation, deterrence, and rehabilitation.

[64] I adopt the succinct yet comprehensive articulation of the difficult balance a sentencing requires as provided by Schreck J. in R. v. Beharry, 2022 ONSC 4370 at paragraphs 16-17:

A. General Sentencing Principles

[16] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58:

Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.

[17] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

F. Proportionality, Parity, Totality, Restraint

[65] Section 718.1 of the Code mandates that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[66] This sentencing also calls for careful consideration of totality given the number of counts and the criminal principles associated with consecutive and concurrent sentences. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh: R. v. Milani, 2021 ONCA 56, at para. 34.

[67] Sections 718.2(d) and (e) of the Code address the criminal law principle of restraint. The defendant should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable and available sanctions, other than imprisonment, should be considered: R. v. S.K., 2021 ONCA 619, at paras. 12-13; R. v. Desir, 2021 ONCA 486, at para. 41; Borde.

[68] I have analyzed the totality principle in line with the guidance of the Ontario Court of Appeal in R. v. Jewell, (1995) 1995 1897 (ON CA), 100 C.C.C. (3d) 270, and R. v. Ahmed, 2017 ONCA 76, at paras 78-93. This is how I balanced the use of concurrent and consecutive sentences to achieve a proportionate sentence.

G. Sentencing Range – Case law

[69] Sentence ranges are important when considering the parity principle. That being said, sentence ranges are simply collected summaries of minimum and maximum sentences: R. v. Lacasse, 2015 SCC 64, at para. 57.

[70] Sentencing is an individualized process where every defendant is owed a customized sentence. The challenge for a sentencing judge is to impose a fit and proportionate sentence having properly evaluated the relevant factors: R. v. M. (C.A.), 1996 230 (SCC), [1996] S.C.J. No 28, at para. 90.

[71] There is no mandatory minimum sentence. All sentencing options are available. I have considered the caselaw provided by both the Crown and Defence suggesting differing approaches to sentence. In addition to the cases I cited in Rudder, I found the summary of cases produced by Green J. in R. v. McLarty-Mathieu, 2022 ONCJ 498, at paras. 62-82 to be particularly helpful. But in my view, the most telling guidance in this area of sentencing is derived from R. v. Nur, 2015 SCC 15, R. v. Nur, 2013 ONCA 677, and R. v. Mohiadin, 2020 ONSC 47 rev’d 2021 ONCA 122.

[72] The defendant in Nur was a 19 year old first offender. It is notable that both the Supreme Court of Canada and Ontario Court of Appeal struck down the mandatory minimum sentence but upheld a jail sentence of three years and four months. In particular, Doherty J.A. provided guidance as to the proper approach to sentencing at paragraph 206 of the Court of Appeal decision:

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.

[73] The Supreme Court of Canada, in paragraphs 82-83, agreed with the notion that “true crime” possession cases may warrant sentences of three years or more:

82 Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public" (para. 51). At this end of the range -- indeed for the vast majority of offences -- a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

83 Given the minimal blameworthiness of the offender in this situation and the absence of any harm or real risk of harm flowing from the conduct (i.e. having the gun in one residence as opposed to another), a three-year sentence would be grossly disproportionate. Similar examples can be envisaged. A person inherits a firearm and before she can apprise herself of the licence requirements commits an offence. A spouse finds herself in possession of her husband's firearm and breaches the regulation. We need not focus on a particular hypothetical. The bottom line is that s. 95(1) foreseeably catches licensing offences which involve little or no moral fault and little or no danger to the public. For these offences three years' imprisonment is grossly disproportionate to a fit and fair sentence. Firearms are inherently dangerous and the state is entitled to use sanctions to signal its disapproval of careless practices and to discourage gun owners from making mistakes, to be sure. But a three-year term of imprisonment for a person who has essentially committed a licensing infraction is totally out of sync with the norms of criminal sentencing set out in the s. 718 of the Criminal Code and legitimate expectations in a free and democratic society. As the Court of Appeal concluded, there exists a "cavernous disconnect" between the severity of the licensing-type offence and the mandatory minimum three-year term of imprisonment (para. 176). Consequently, I conclude that s. 95(2)(a)(i) breaches s. 12 of the Charter. [ Emphasis added].

[74] I also heed the more recent guidance of the Court of Appeal in R. v. Mohiadin, 2021 ONCA 112 at paragraphs 12 -13:

12 In sentencing afresh, we begin by reiterating the observations of Doherty J.A. in R. v. Nur, 2013 ONCA 677, at para. 206, aff'd 2015 SCC 15, [2015] 1 S.C.R. 773, that "[i]ndividuals 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." In Nur, both this court and the Supreme Court of Canada declined to interfere with a 40-month sentence imposed on a 19-year-old first-time offender who tried to flee the police, was chased, and threw his loaded handgun under a parked car. McLachlin C.J. underscored, at para. 120, that "[i]t remains appropriate for judges to continue to impose weighty sentences" in appropriate circumstances.

13 Here, in proposing a three-year sentence before credit for pre-trial custody and Downes credit, the Crown was mindful of these and other authorities. Crown counsel fairly noted that some cases have imposed longer sentences than this for similarly serious gun possession offences by youthful first-time offenders, while other cases have imposed shorter sentences. The Crown was satisfied that its proposed sentence was appropriate having regard to the following factors: (1) the appellant was a youthful first-offender; (2) while there was no evidence that the appellant was involved in gang activity, there was also no evidence of any direct threat to the appellant; (3) the appellant had witnessed gun violence, his older brother had died in gun violence, and he lived in a part of Toronto where gun violence is commonplace; (4) the appellant had prospects for rehabilitation; and (5) although the appellant did not plead guilty, he saved several days of court time by effectively inviting a guilty verdict after losing a preliminary Charter challenge.

[75] The Court of Appeal in Mohiadin varied the sentence to 36 months because of the sentencing judge’s failure to comply with the principles outlined in R. v. Blake-Samuels, 2021 ONCA 77, not because of the length of the sentence imposed.

[76] Ultimately, I heed the caution about sentencing ranges: Lacasse. But for all of the reasons outlined in this judgment, in my respectful view, sentences for firearms-related crimes should increase.

H. The Approach

[77] Criminal law sentencing principles demand that a sentencing court consider the least intrusive sentencing options. This task is particularly acute where the offender is a young adult first offender. In my respectful view, the criminal law sentencing principles mandate that criminal sentencing sanctions be evaluated on a spectrum – an “escalating ladder” of available sentencing sanctions that begins with the least intrusive sentence.

[78] The parties agree that there is no applicable mandatory minimum sentence. The parties agree that all sentencing options are available. As explained in this judgment I am of the view that sentences for the illegal possession of firearms should increase.

[79] A discharge, fine, or suspended sentence are inappropriate sentencing options as such sentences would not properly address the sentencing objectives. The Crown position of three to three and one-half years incarceration is a fit and proportionate sentence as applied to the particular offender in this case. I have sentenced the defendant to a significantly lower sentence because of my assessment the mitigating factors -- in particular, the defendant’s youth, and sincere remorse.

[80] In arriving at this conclusion, I have carefully considered the Defence position of a conditional sentence of jail. I conclude that a conditional sentence of jail would not properly address the criminal law sentencing objectives.

[81] First of all, I have determined that a fit and proportionate sentence for this offence is a range of 3 to 3.5 years. Factoring in the mitigating factors I have found that a sentence of two years and ten months is fit and proportionate. The appropriate sentence in this case exceeds two years incarceration.

[82] In any event, I find that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing. Bluntly, a conditional sentence would not provide sufficient denunciation to those who would voluntarily possess loaded illegal handguns in our society.

Released: January 4th, 2023

Signed: “Justice M.S. Felix”

[^1]: Consistent with the sentence pronounced in Court on January 4th, 2023. [^2]: A day prior. [^3]: December 19, 2022. [^4]: January 4th, 2023. [^5]: Email is attached to the record. [^6]: Often an opinion letter from an immigration law specialist is provided.