Ontario Court of Justice

Date: 2023 12 21 Court File No.: BRAMPTON 22-31104089

Between:

HIS MAJESTY THE KING

— AND —

TREMAR THORPE

Before: Justice P.T. O’Marra

Heard on: September 26, October 23 and November 22, 2023 Reasons for Judgment released on: December 21, 2023

Counsel: C. Coughlin, counsel for the Crown A. Robbins, counsel for the accused Tremar Thorpe

P.T. O’Marra, J.:

Introduction

[1] On September 26, 2023, Mr. Thorpe pleaded guilty to possession of a loaded and prohibited firearm contrary to section 95(1) of the Criminal Code of Canada.

Circumstances of the Offence

[2] The circumstances of the offence for which Mr. Thorpe is to be sentenced is that on August 22, 2022, at approximately 6:14 p.m., police were contacted by a civilian caller that reported that three Black males, in their late teens or early twenties, were bothering a young Asian male party of a similar age.

[3] One of the males was wearing a red hoodie and was chasing the victim into the complex directly across from 5995 Glen Erin Drive, Mississauga. The other two males were standing by the fence in-between the Britannia Glen Co-op and Lom Nava. The victim, Mr. Chan, was screaming, “What do you want from me?” The 911 caller reported that the male in the red hoodie had a gun in his waistband.

[4] At approximately 6:20 p.m., Cst. David Grzenda and Cst. Marcus Matheson arrived at the 5995 Glen Erin Drive townhouse complex and drove though the parking lot where they did not observe any people that matched the disturbance or the description. They exited 5995 Glen Erin Drive, and then entered 5955 Glen Erin Drive. They proceeded on the roadway on the north side of the townhouse complex, at which point, Cst. Grzenda observed three young Black males, one of whom was wearing a red hoodie. Cst. Grzenda stopped his vehicle beside the males, and one of them fled westbound. At 6:23 p.m., Cst. Grzenda activated his body worn camera. The rest of the interaction was captured on the body worn camera.

[5] Cst. Grzenda handcuffed and searched the young male in the red hoodie, Tremar Thorpe. Cst. Grzenda located a loaded handgun in Mr. Thorpe’s waistband with ten rounds of .22 calibre ammunition and one round chambered. Mr. Thorpe did not possess a licence nor registration certificate that would enable him to legally possess a firearm. The serial number of the handgun was defaced.

[6] Mr. Chan advised the police that he was on a video call with a friend when he saw three people and he felt that they began to follow him. Mr. Chan turned and pointed his phone camera at them. They exchanged words and two of the men flashed guns. Mr. Thorpe pointed his gun at Mr. Chan and said, “oh ya, this is fake.” Mr. Chan tried to leave and was yelling. Mr. Thorpe followed Mr. Chan. Mr. Thorpe called Mr. Chan a “Chinese bitch” and told him to “close your eyes fully”, to get on his knees and apologize.

[7] When Mr. Chan picked up a rock, Mr. Thorpe took off.

[8] Mr. Thorpe spent seven days in custody prior to his release on bail. Mr. Thorpe will be credited with 1.5 days for each day of his seven days of pre-trial detention pursuant to s. 719(3.1) of the Code and R. v. Summers [1], resulting in Summers credit of 11 days.

[9] The parties agree that Mr. Thorpe is due credit for time spent on stringent release conditions pursuant to R. v. Downes [2]. Mr. Thorpe has been on house arrest with ankle monitoring along with regular bail compliance checks for approximately 18 months.

[10] There is no mathematical formula. The sentencing judge must review the relevant case-specific factors and explain what credit (if any) is appropriate. It is acceptable to assign a particular “credit” or simply consider the circumstance in arriving at the overall sentence.

[11] The Crowns submits that Mr. Thorpe should be credited for three months of Downes credit. The Defence argues that Mr. Thorpe should receive six months credit.

[12] The Crown seeks a three-to-four-year penitentiary sentence. In addition, the Crown seeks the following ancillary orders: an order pursuant to section 109 of the Code for 10 years and a DNA order for this secondary designated offence.

[13] The Defence seeks a conditional sentence of two years less one day followed by probation for three years.

The Impact of the Offence

[14] Mr. Chan prepared a victim impact statement. Included in the victim impact statement was a poem that also expresses the impact the offence has had on him.

[15] The impact of Mr. Thorpe’s actions towards Mr. Chan have been overwhelming and profound. Mr. Chan is bi-polar and must be treated with medication. This offence has compounded and exacerbated Mr. Chan’s mental health problems.

[16] Mr. Chan no longer feels safe to venture outside. He describes that the enjoyment of going outdoors has been “overshadowed by fear and anxiety and a sense that I’m in danger when there is no danger.”

[17] As a result of the incident, which occurred prior to the school year commencing, Mr. Chan dropped out after the first week as he was so traumatized.

[18] Mr. Chan has fears for his own and his family’s security if he has contact with Mr. Thorpe.

[19] Finally, the possession of a loaded, prohibited handgun makes the community worse.

[20] Gun crime has been described by the Supreme Court in R. v. Nur [3] as a “matter of grave and growing public concern.”

[21] In R. v. Kawal [4], Justice Harris, at para. 11, stated the following:

Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, "Gun-related crime poses grave danger to Canadians." R. v. Nur, 2015 SCC 15, per Chief Justice McLachlin, at para. 1, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

[22] The violence, injury and loss of life attributed to firearms in our community is appalling. Gun crime has a significant impact on the community.

[23] Parliament’s recent reaction to the spread of firearms and firearm related offences in Canada is Bill C-21 an Act to amend certain Acts and to make certain consequential amendments (firearms), S.C. 2023 c. 32. On December 15, 2023, Bill C-21 received Royal Assent which increases the maximum penalty from 10 years to 14 years for the following Criminal Code offences: ss. 95, 96, 99, 100 and 103.

Circumstances of the Offender

[24] The Defence provided valuable materials on sentencing which included 15 character reference letters from family members, friends, coaches, counselors, teachers, and religious leaders. I have reviewed all the letters in support.

[25] Mr. Thorpe prepared a letter of apology to Mr. Chan which expresses, in my view, in very clear and articulate terms, his insight into Mr. Chan’s pain and suffering because of his stupid and careless actions. The letter also provided some insight into the steps that Mr. Thorpe has taken towards rehabilitation.

[26] Much of the information in this portion of my reasons was obtained from the PSR and counsel’s submissions.

[27] Mr. Thorpe was born in 2004. He was raised in Mississauga by his mother. He has no siblings. Currently, he lives with his mother.

[28] His parents separated when he was two years old. His father was not involved in his life until proximate to the time of this offence. Mr. Thorpe was staying with his father and was not subject to many household rules. Mr. Thorpe’s father has a criminal record for firearm related offences. According to Mr. Thorpe’s mother, the lack of structure played a role in this offence. However, Mr. Thorpe shares a positive relationship with his father.

[29] Mr. Thorpe has a very close relationship with his grandfather and other family members. His grandfather has helped raise him since birth. His grandfather is his surety.

[30] Mr. Thorpe graduated from high school. He played on the senior boys basketball team.

[31] A bail variation allowed him to pursue a diploma in electrical engineering at Humber College. Currently, he is in his first year. Mr. Thorpe would like to focus his career path on HVAC.

[32] It seems that Mr. Thorpe has been consuming marijuana daily since he was 15 years old. By his own admission, marijuana has caused him to alter his problem-solving skills.

[33] A representative of the Associated Youth Service of Peel described how Mr. Thorpe has matured. The writer felt that Mr. Thorpe’s troubles started when he fell victim to toxic masculinity which prevented him from making correct decisions. Mr. Thorpe would have made better choices if had access to counselling at the time of the offence. But since he has taken advantage of the services offered, it is the writer’s professional opinion that he would be a good candidate for community supervision.

[34] Mr. Thorpe’s mother confirms that he has matured since his arrest. She describes her son as “intelligent”, “generous”, “loving and a helpful person”. She believes that he may suffer from depression. This was brought on by the isolating effects of COVID-19 and associating with negative peers.

[35] Mr. Thorpe and his family are frequent attendees to the services of the Praise Cathedral Worship Centre. According to the Youth Pastor and the Bishop, Mr. Thorpe’s life has improved significantly. The Church has offered rehabilitation services and Mr. Thorpe has availed himself to counselling with the Church elders. Mr. Thorpe has volunteered as part of their sound and multimedia team. He is being trained on cameras and media production.

[36] There is a theme that runs deep in all the letters of support that I have reviewed: This offence was out of character and Mr. Thorpe is remorseful and has taken meaningful steps towards rehabilitation.

[37] Mr. Thorpe has completed 150 hours of community service at the Fruitville Church Food Bank.

Statutory Framework and Governing Legal Principles

[38] Section 95(1) of the Code states that a person convicted of unauthorized possession of a loaded prohibited weapon is liable on conviction to a maximum sentence of imprisonment for ten years.

[39] There is no mandatory minimum sentence. All sentencing options are available.

[40] All sentences must conform to the principles of sentencing in the Criminal Code.

[41] According to section 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[42] The fundamental purpose of sentencing, as described in s. 718, “is to contribute… to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives”, which 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.

[43] The balancing of the principles of sentencing is a case-specific exercise governed by all the circumstances. However, all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[44] The principles of deterrence and denunciation are key principles for possessing a loaded firearm in public due to the danger the conduct poses to society. Such offenders should, as noted by Justice Doherty in Nur [5], “continue to receive exemplary sentences that will emphasize deterrence and denunciation.”

[45] There is a consistent theme in the jurisprudence: “firearms pose a significant danger to our community to such an extent that circumstances which fall within the “true crime” end of the s. 95 spectrum of offences, like in this case, will attract exemplary sentences that emphasize deterrence, denunciation, and protection of the public.

[46] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. [6]

[47] Rehabilitation and restraint are always factors for consideration. These factors are particularly pronounced where a first penitentiary sentence for a youthful offender is contemplated such as with Mr. Thorpe.

[48] Furthermore, the Code mandates that a sentence should be like sentences imposed on similar offenders for similar offences committed in similar circumstances. However, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. [7]

[49] 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. [8]

The Positions of the Parties

[50] I set out the parties’ positions generally at the outset of these reasons. I will briefly flesh them out a little more at this point.

[51] Mr. Coughlin argues, from the Crown’s perspective, that Mr. Thorpe’s possession of a loaded and prohibited firearm is best characterized at the truly criminal end of the spectrum, despite no physical injury to Mr. Chan. There was no legitimate or authorized purpose to possess a handgun.

[52] Mr. Coughlin points out that the case law suggests that the appropriate range of sentence is three to four years in the penitentiary in circumstances like the present case, which include a first-time youthful offender, who has entered a guilty plea to possession of a loaded, prohibited firearm, and which was in a public location.

[53] Mr. Coughlin agrees that some mitigation is warranted for the following circumstances: the early guilty plea, first-time offender factor, strong family, and community support, a positive PSR, and pre-sentence custody and strict bail terms.

[54] Mr. Robbins’ position is that a conditional sentence order for a period of two years less one day, followed by a three-year period of probation, is an appropriate sentence.

[55] Mr. Robbins points to the early guilty plea, Mr. Thorpe’s remorseful letter to Mr. Chan, the fact that he is a first-time offender, his cooperation with the police which included diffusing the arrest and calming down his friend’s aggression towards the police, immediately telling the officer that he possessed a real handgun when the officer was doubting its authenticity, his volunteer work, attending school despite ankle monitoring, and the 16 months on stringent bail conditions.

[56] Mr. Robbins suggested that sentencing Mr. Thorpe to a conditional sentence order for two years less one day and the three years probation would be supervision of Mr. Thorpe while in the community into his mid-20s.

[57] Mr. Robbins submits that Mr. Thorpe has matured significantly which is a constant theme in his support letters and the PSR.

Aggravating and Mitigating Factors

[58] 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.

Mitigating Factors

[59] Mr. Thorpe is a youthful, first-time offender.

[60] Mr. Thorpe pleaded guilty demonstrating his remorse and contrition and saving considerable court resources. In his letter of apology, Mr. Thorpe did not minimize his action in any way. He did not call it a mistake or an error in judgment but characterized it as a dangerous decision to allow peer pressure to overwhelm him and succumb to it and try to impress his friends by carrying a loaded firearm. He shows that he has true insight into the psychological harm that he caused Mr. Chan, as well as the embarrassment and shame that he has brought to his family and to himself. This insight bodes well for his rehabilitation.

[61] Mr. Thorpe has tremendously supportive family and friends. His family, friends, religious leaders, teachers, and coaches submitted letters of support to the Court and have attended every court appearance. His family members only want what is best for him. The fact that he has strong family support is a positive factor relating to his being successful in the future.

[62] Mr. Thorpe has prosocial goals. He is enrolled in electrical engineering at Humber College and has stated in his letter that he will continue to work on himself and continue a positive path forward. While on strict bail conditions, he attended college. He has given back to the community by completing 150 hours of community service at a food bank.

[63] Mr. Robbins advised, and I accept, that previously an assault charge was diverted when Mr. Thorpe was a youth. He assaulted the victim after he was called a racial slur. I have no doubt that Mr. Thorpe has experienced anti-black racism. However, I am not convinced that anti-racism played a role or offers any explanation for the commission of the offence. [9]

[64] The Ontario Court of Appeal explained proportionality is the fundamental and overarching principle of sentencing. The other sentencing principles set out in s. 718.2 must be considered and blended in a manner which produces a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[65] The gravity or seriousness of a crime relates to assessing and weighing the other objectives of sentencing identified in s. 718. The more serious the crime, the greater the need to denounce such unlawful conduct and deter the offender and others. McLachlin, C.J., in Nur [10], observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95. The gravity of this type of offence still requires the Court to firmly denounce serious gun crimes through the punishment imposed.

[66] Mr. Thorpe completed 150 hours of community service.

[67] Mr. Thorpe spent the equivalent of 11 days in presentence custody.

[68] Mr. Thorpe has been on strict bail conditions including ankle bracelet monitoring for sixteen months.

Aggravating Factors

[69] A factor which serves to aggravate Mr. Thorpe’s sentence includes the nature of the firearm. It is a prohibited .22 calibre handgun.

[70] The firearm was loaded with one round of ammunition in the chamber. 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 Area chooses 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.

[71] 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. Mr. Thorpe possessed a loaded restricted firearm demonstrating true criminal conduct. This is not a case of regulatory missteps or partially authorized possession.

[72] The loaded firearm was easily accessible to Mr. Thorpe. It was concealed carelessly and recklessly, having been stowed in his waistband upon his arrest.

[73] It is aggravating that Mr. Thorpe was walking around in the community with a loaded firearm. His use of the handgun is particularly aggravating. Mr. Thorpe pointed it at Mr. Chan’s head. While doing so, he mocked and taunted Mr. Chan’s Chinese ethnicity calling him a “Chinese Bitch” and to close his eyes fully. Mr. Thorpe further humiliated and mentally tortured Mr. Chan by ordering him to get on his knees and to apologize for video recording he and his friends on his iPhone. The impact to Mr. Chan is devastating.

[74] Finally, the serial numbers were defaced from the firearm.

What is the appropriate sentence for Mr. Thorpe?

[75] I conclude that deterrence and denunciation must be the paramount objectives in sentencing Mr. Thorpe. A sentence for a loaded handgun with 10 rounds of ammunition pointed at Mr. Chan, and later dangerously concealed in his waistband upon arrest, must denounce, deter and protect of the public. Appellate Courts have stressed that public protection can only be achieved through sentences that ensure that potential offenders know that their illegal possession of loaded handguns will be accompanied by serious penal consequences. The Ontario Court of Appeal has made clear that to combat the serious threat firearms pose to the community such offences must be met with exemplary custodial sentences that proportionally reflect the gravity of the crime and which appropriately stress the need to denounce and deter such crimes.

[76] In my view, a conditional sentence in these circumstances would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code.

[77] However, Mr. Thorpe’s youthfulness, and his personal circumstances including his prosocial lifestyle, community service and volunteer work, his educational and employment goals, and the social context evidence that reduces his moral culpability, and the steps he has taken towards rehabilitation, all support the conclusion that rehabilitation of Mr. Thorpe remains a highly important factor for consideration.

[78] Considering all the facts, the relevant legal principles, the mitigating and aggravating factors, and the appropriate range of sentence, it is my view that the fit and appropriate sentence is a penitentiary sentence of 28 months in custody. This sentence, while below the oft cited range of three to five years for cases like that, that fall in the true crime range, accounts for the significant mitigating features as demonstrated in the materials presented by Mr. Thorpe.

[79] The 28-month penitentiary sentence will be reduced by six months for Summers credit of 11 days and Downes credit for the time spent on bail. Mr. Thorpe, the remaining sentence to be served is 22 months.

Ancillary Orders

[80] Mr. Thorpe will also be subject to a firearms prohibition order. Under s. 109 of the Criminal Code, Mr. Thorpe is prohibited for 10 years from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance.

[81] Mr. Thorpe is also subject to a DNA databank order. Possession of a loaded prohibited firearm with the serial numbers removed are secondary designated offences. Having regard to the serious nature of the offence and the circumstances surrounding its commission, the absence of a criminal record, and the limited impact the order will have on his privacy, I am satisfied that it is in the best interests of the administration of justice to require Mr. Thorpe to provide a DNA sample in accordance with s. 487.03(b) of the Criminal Code.

[82] The firearm with the magazine and ammunition are forfeited for destruction.

[83] I would ask the Correctional authorities to give some consideration to Mr. Thorpe as a suitable candidate for the Temporary Absence Program, should he make an application.

Released: December 21, 2023 Signed: Justice P.T. O’Marra