DATE: February 16, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

CODY JOSEPH O’DWYER

Before: Justice David P. Cole

Heard on: September 21 & December 19, 2022

Reasons for Judgment released on: February 16, 2023

Counsel: S. Koveerasingham, for the Crown A. Gallo, for the accused

COLE J.:

[1] The issue to be determined in this case is the appropriate sentence to be imposed following the accused’s pleas of guilty to charges of:

(1) Possession of a motor vehicle knowing that it was obtained by theft (s. 354(1)(a)).

(2) Possession of a revolver knowing that he was not the holder of a licence under which he may possess it (s. 92(1)).

(3) Being an occupant of a motor vehicle in which he knew there was a revolver (s.94).

(4) Possession of a weapon dangerous to the public peace (s. 88(1)).

THE AGREED FACTS:

[2] On May 1, 2021 at approximately 0900 the Thunder Bay Police Service received a telephone call from Ms Megan Belluz, who indicated that the (now) accused had taken her pickup truck without her permission. She further advised police that he “may be armed with a handgun”. Details of the make, colour and licence plate of the truck were promptly broadcast over the police radio, together with a warning that the driver might be armed. A few minutes later Const. Lahtinen spotted the truck parked on a street in Thunder Bay. He observed the accused exit the driver’s seat vehicle and walk around to the passenger side. Because of the radio broadcast he had received regarding the driver possibly being in possession of a handgun, he called for police backup, to which Const. Ritchie responded very rapidly. When the officers approached the vehicle, they saw Mr. O’Dwyer apparently reaching for something on the rear passenger seat. Fearing for their safety, the officers drew their firearms and directed the accused to “show his hands and lay down on his stomach”. Luckily for all involved, the accused complied.

[3] When the accused was searched consequent upon arrest the officers located a silver 6-shot “H&R American Double Action” snub nose revolver in the accused’s right front pant pocket. (As Crown counsel rightly pointed out, it was not secured in any kind of safety holster or other protective sheath). Importantly from a sentencing perspective, the firearm was unloaded, and no ammunition was found on the accused’s person or in the vehicle.

[4] (The police did discover a small amount of suspected cocaine in the accused’s jacket pocket, and the accused was initially charged with being in possession of this illegal substance; however, this charge was withdrawn, as the substance did not test as being a controlled substance).

FACTS RELATING TO THE OFFENDER:

[5] A pre-sentence report (PSR) was prepared for my assistance (Ex. 1). Compared with many I receive, it is quite favourable. The 31 year-old offender comes from a stable and supportive family. His parents were both interviewed as part of the PSR process, and reported that the offender’s childhood was not marked by the kinds of significant family traumas one so often sees in criminal cases. In fact, when the offender impregnated his high school girlfriend, his parents encouraged the young couple to live with them while they completed high school in Thunder Bay. (Perhaps not surprisingly, that teenage relationship did not last). To date the offender still maintains excellent relations with his parents; when he was released on a “house arrest” bail on these charges, the offender went to live with them, and has remained under their roof since that time.

[6] Some years after completing high school and entering the work force, the offender established a romantic relationship with A.F., which lasted some two years. After the couple broke up, A.F. discovered that she was pregnant; consequently, they reconciled for a few months. However, A.F. told the report writer that the offender was not at the time a responsible parent, “spending minimal time with her and their son and choosing to spend his free time with his friends or at the bars”. Nevertheless, to the offender’s credit he “has regular visits with [his 5 year-old] child”.

[7] The offender met his current spouse C.M. in 2018, and they began living together in 2019. She has four children from her previous marriage (ages 9, 7, and twins age 5). The couple share a daughter born in early 2022, and C.M. is currently pregnant with her sixth child, whose anticipated birth date will be in May 2023. C.M. describes the current relationship “as good”. Once this case is concluded she wishes the offender to resume cohabitation with her and her children, with whom he “shares a good rapport”. She described the offender as “a positive person in her and her children’s lives…spend[ing] a great deal of time with his two children and stepchildren” while on bail. Both C.M. and the offender’s parents report that “to their knowledge, he has been maintaining a life free from all substances since he was arrested”.

[8] C.M. was candid with the PSR writer, telling him that she and the offender “separated 1.5 years ago when she considered that he was making ‘poor choices’ and that she was not sure where the subject was living. [She] was not sure what he was doing during this time but believes it may have involved substance abuse”. This was also noted by the offender’s long-time employer, who, though lauding the offender’s overall work ethic as “fantastic”, “skilled” and “punctual”, noted that he had “disappeared” from work for about two weeks prior to the incident leading to his arrest. These observations seem entirely consistent with what the offender himself told the PSR writer about his behaviour in the weeks preceding his arrest. He told the probation officer (who described the offender as “open and forthcoming in providing information for this court report”), that “though he had experimented with illicit drugs approximately 1 ½ years prior to his arrest…during this time in his life he had turned to crack cocaine which created many problems in his life and that he was reportedly using daily. The offender was very evasive as to where he was living during this time in his life, only that he was using illicit drugs and ‘living from house to house’”. He told the writer that following his arrest, he “quit ‘cold turkey’”.

[9] The overall picture presented in the PSR shows an offender who has completed secondary school, enjoys solid ongoing family support, and has a demonstrated history of steady employment as a cement finisher and journeyman carpenter since about age 20. Importantly, his history of substance abuse appears to be episodic rather than habitual. What appears to have happened is that in the few weeks leading up to the date of his arrest, he sampled and then rapidly began to “binge” on crack cocaine, concealed his whereabouts from his employer and his family, and likely came into possession of the firearm that was discovered on his person on arrest. According to both the offender and those who know him, his arrest has acted as a significant “wake up call”. He is now reconciled with his spouse and children, is back at work, and seems solidly focused on his responsibilities, not the least of which is his choice to enter pleas of guilty to the serious charges before the court, knowing that he may well be jailed for these offences.

[10] Having said all this, there is one element of his history that causes me some concern. The offender has a single prior conviction for impaired driving in 2012, when he was about 21. Given the length of time that has elapsed between that offence and the charges presently before the court, a good argument can be made that both his historic and current criminality should be conceptualized as “lapses” from good behaviour (as discussed in the next paragraph). However, in light of his admission that he had been “bingeing” on crack cocaine for a few weeks prior to March 1, 2021, the accused’s denial to the PSR writer “that he requires any form of counselling due to the fact that he has been sober for many years” is somewhat troubling. The accused may have “quit ‘cold turkey’ when he was arrested for the current charges before the court”; however, the very fact that he has now been before the criminal courts on two occasions for crimes involving substance abuse suggests that it is certainly time he starts recognizing and acknowledging that he has ongoing problems with legal and illegal intoxicants, and that he needs to address these issues through professional assistance. I shall specifically address this when I deal with the optional conditions of probation proposed by defence counsel. However, I caution Mr. O’Dwyer that if he ever finds himself before a criminal court again facing sentencing for a substance-related offence, the court may well be left with little option but to impose a substantial custodial term.

[11] I would largely conceptualize Mr. O’Dwyer’s criminality on this occasion as amounting to what is sometimes referred to in criminal practice as a “one off”. While the notion of a “one off” may not strictly apply to an offender with a previous criminal record (such authority as exists on point does not seem to deal with this issue), Ashworth and von Hirsch’s important notion of “a lapse” would seem to be very much applicable in the case at bar. As Prof. Ashworth summarizes:

“Ordinary people do have occasional aberrations. Human weakness is not so unusual. The sentencing system should recognize not only this, but also the capacity of people to respond to censure, and to ensure that their future conduct conforms to the law. This is embodied in the idea of giving someone “a second chance”. So the justification for the discount for first offenders rests partly on recognition of human fallibility, and partly on people’s ability to respond to the censure expressed in the sentence.”

He goes on to stress:

“The justification for the gradual losing of that mitigation on second and subsequent convictions is that the “second chance” has been given and not taken: the offender has forfeited the tolerance, and its associated sentence discount, because the subsequent criminal choices show insufficient response to the public censure. In principle, therefore, the second offence deserves greater censure than the first …and the third offence may be censured fully.”

Prof. Ashworth nevertheless cautions the reader that:

“…the seriousness of the offence must remain the primary determinant of sentence”. [1]

While, as will be seen later in these reasons, I do not agree with either counsel’s positions with respect to the length of the custodial term to be imposed, nevertheless counsel are entirely correct to submit that the seriousness of these offences, especially the possession of the firearm, must be the primary determinant of the sentence. Further, though neither directly focused on the relevance of the offender’s previous record, I presume from their lack of commentary they were of the view that, given that his only previous offence was committed over a decade ago, the notion of conceptualizing the present offences as a “lapse” in otherwise good behaviour is applicable here.

THE POSITIONS OF THE PARTIES:

(A) Length and Nature of the Custodial Term to be Imposed

[12] Crown counsel proposed a custodial sentence of two years less one day, followed by a period of probation of 18 months.

[13] Defence counsel submitted that a conditional sentence of two years less a day (with varying levels of house arrest at different stages of the conditional sentence) would adequately address the principles of sentence to be applied in this case. She also proposed that an 18 month period of probation should follow on from the expiry of the conditional sentence.

(B) Ancillary Orders

[14] Counsel were in agreement about various types of ancillary orders that should supplement the custodial and probationary terms to be imposed. These include:

(1) a s. 109 order for 20 years;

(2) a DNA order (“primary”);

(3) an order prohibiting the offender from contacting Ms Belluz throughout the pendency of any sentence I might impose;

(4) an order for forfeiture and destruction of the revolver.

(Because these recommendations were not in dispute, I shall simply make these ancillary orders at the end of these reasons).

ANALYSIS:

[15] There are three elements of Crown counsel’s submissions that need to be addressed at the outset of this analysis.

[16] First, I note that the offender was not charged with theft of the vehicle or robbing Ms Belluz of her property. Nonetheless, Crown counsel invites me to infer that because Ms Belluz told the police she knew that the offender was armed, he must have used his firearm to menace her as part of the act of taking her vehicle. That is not part of the agreed statement of facts read into evidence to support the guilty pleas. The conspicuous presence of a firearm during an illegal appropriation may, depending on all the circumstances, support an inference of the weapon’s intimidatory purpose or effect. Absent more, however, the mere assertion that Ms Belluz knew the offender was armed does not itself establish to the requisite degree of proof that he used the firearm to threaten her or that she otherwise felt intimidated by its presence. If Crown counsel wished to establish either proposition as an aggravating fact for sentencing purposes, qua Gardiner, it was incumbent on him to call Ms Belluz as a witness.

[17] The second aspect of Crown counsel’s submission that concerns me is that during oral argument he invited me “to take ‘judicial notice’ of the scourge of guns (and drugs) in Thunder Bay”. Checking my records, I see that since the start of this fiscal year (April 1, 2022), I have presided in a variety of Thunder Bay courts on some 17 occasions (including today). A few of those appearances were in plea court, where I might get some vague impression of crime trends prevalent in the jurisdiction. However, my other presiding days in Thunder Bay have generally been in Case Management (CMC) courts or Judicial Pre-Trial (JPT) courts; my experience is that cases in those kinds of courts have such diverse dockets that such impressions as might be garnered from presiding there could well be misleading.

[18] More important, all these appearances in Thunder Bay courts have been virtual. I have not been to Thunder Bay in person for about 30 years. I do not regularly interact with other judges who preside there frequently, so I have no idea how they may perceive local crime trends. I do not read the local newspaper nor see local media. Thus, while a jurist who regularly presides in that jurisdiction might be comfortable taking the rare step of assuming ‘judicial notice’ of crime patterns in Thunder Bay, as a judge who lives in Toronto and whose “base court” is located there, I am far from being in a position to take judicial notice of crime patterns in Thunder Bay with any confidence that my perceptions would be accurate.

[19] In the alternative I invited Crown counsel to submit statistics that might provide me with an adequate information base about what he termed “the scourge/cancer of gun violence in Thunder Bay”. Counsel is to be commended for finding a very 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” (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>).

[20] While of course this apparently substantial “spike” in Thunder Bay in 2021 is troubling, nevertheless because the longitudinal data reflects only two points of comparison, it is statistically insufficiently “anchored” to demonstrate whether the percentage increase is anything more than a year-to-year aberration – a “blip”. [2] Indeed, an examination of Table 3 seems to support the notion that 2021 may have been an anomaly. First, even in this “peak year” of 2021, the “rate” of “police-reported violent firearm-related crime” in Thunder Bay is still close to the middle of the national “pack”, and below the nation-wide “rate” [3]. Second, examining the period from 2011 to 2020 Thunder Bay’s “rate” is reported as being in the lowest quartile of all Census Metropolitan Areas (CMAs), which again casts some doubt on the overall direction of the data.

[21] Thus, upon closer examination the statistical data relied upon so heavily by the Crown simply does not adequately demonstrate that current crime trends in Thunder Bay (and surrounding areas) have reached the level where an exemplary sentence is virtually mandatory. Indeed, much of counsel’s case law mentions cases decided in Metropolitan Toronto (or the GTA), rather than Thunder Bay. By way of comparison, the Juristat article cites data to the effect that rates of firearm-related crime in Toronto as of the end of 2021 have actually declined since 2020.

[22] On the statistical evidence before me I thus conclude that, as in other CMAs across Canada, gun violence and drugs in Thunder Bay undoubtedly pose serious problems for the local community, but that these have thankfully not reached “epidemic” proportions, as Crown counsel urges. The statistical data will obviously need to be carefully monitored over the next few years before any robust conclusions can be properly inferred.

[23] Beyond this question of the utility of data about crime trends in Thunder Bay, the third area of concern I have about Crown counsel’s analysis of this case arises from the way he invited me to consider and apply the Supreme Court of Canada decision in R. v. Felawka [1993] 4 S.C.R. 1993, specifically for that portion of the judgment where the majority of the court writes that:

“A firearm is expressly designed to kill or wound. It operates with deadly efficiency in carrying out the object of its design. It follows that such a deadly weapon can, of course, be used for purposes of threatening and intimidating. Indeed, it is hard to imagine anything more intimidating or dangerous than a brandished firearm….No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.” (at 211)

That is of course perfectly correct as a general statement about the evils of carrying firearms (as the Ontario Court of Appeal has recently reiterated in R. v. Morris 2021 ONCA 680 at para. 68). However, with respect, where Crown counsel fundamentally errs is in not adequately linking this general statement to the facts of the case at bar. Indeed, the cases referred to in his supplementary factum all involve loaded firearms, often linked with other serious concurrent criminality. (Similarly, defence counsel’s sentencing precedents are all cases where either the offender had a loaded firearm on their person (or backpack) upon arrest, or ammunition was more or less readily available).

[24] I have already alluded to the fact that there is absolutely no evidence that he threatened or menaced Ms Belluz in any way. Second, unlike the facts in Falawka, at no time did the accused (even inadvertently) display the firearm to anyone; indeed, it is in my view significant that the arresting police officers located the firearm concealed in Mr. O’Dwyer’s front pants pocket during a “pat down” search upon arrest. Third, unlike in Falawka, there is absolutely no evidence that the firearm was loaded, or that the offender was in possession of any readily accessible ammunition. Thus, in assessing one aspect of this offender’s “moral blameworthiness”, I see the case at bar as very different from Falawka, where “[t]he accused, knowing the (loaded) rifle was a weapon, took steps to hide it from observation” (at 200). All of these case specific factors lead me to conclude that Crown counsel is in error to the extent that he urges me to sentence the offender for what he might have done rather than for what he actually did. With a few very rare exceptions that is not the modern Canadian approach to sentencing, particularly since the 1996 amendments to the Code have made it clear that retributivism is to predominate over consequentialist theories.

[25] Perhaps counsel have not been able to find relevant sentencing precedents where, as here, the firearm was neither loaded nor displayed. I have some sympathy for their positions on this issue; while my own research has led me to a few Ontario trial decisions where offenders were being sentenced for being in possession of prohibited unloaded firearms, all of these have had other aggravating factors not present in the case at bar. For example, several of these cases involved offenders being concurrently sentenced for more or equally serious offences (R. v. Vasic [2009] O. J. No. 1968; R. v. Ansah [2021] O. J. No. 6246), or offenders who had lengthy previous records and/or were on bail at the time of the commission of the firearms offence (R. v. Mohamed [2008] O. J. No. 5492; R. v. B.S. [2011] O. J. No. 4894; R. v. Beckles [2008] O. J. No. 2757).

[26] I have only been able to find one recent Ontario appellate authority where the underlying facts came anywhere near close to the case at bar. In R. v. Desmond-Robinson 2022 ONCA 369 cocaine and ammunition were found in the accused’s bedroom. He admitted knowledge of their presence but denied knowledge of the presence of an unloaded sawed-off rifle found in the same room inside a backpack under some clothing. Following a trial, the accused was found guilty of the three offences, and was sentenced to a mid-level reformatory term, in part because, as here, the trial judge was not prepared to make any linkage between possession of the rifle and criminal activity (para. 5). Importantly, the trial judge considered that recent decisions of the Court of Appeal precluded the imposition of a conditional sentence for these types of gun offences. Upon re-evaluating the sentencing materials before the trial judge, as well as admitting fresh evidence of the offender’s continued rehabilitation while on bail pending hearing of the appeal, the Court of Appeal not only held that the trial judge had erred in her interpretation of appellate precedents (especially since R. v. Morris), but also ruled that a two year less a day conditional sentence (followed by two years probation) was now appropriate (paras. 16-17).

[27] In my canvass of sentencing authorities, I remind myself of what Doherty J.A. wrote for the Court of Appeal a few years ago, where he reasoned that gun possession offences reflect a spectrum of illegality which in turn affects the range of sentence to be imposed for such offences:

“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. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possess the firearm at a place that falls outside the terms of the licence. That person’s conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.” (R. v. Nur 2013 ONCA 677 at para. 82).

Of course. Mr. O’Dwyer’s conduct here cannot in any way be characterized as a regulatory offence. However, I use this quote to emphasize that Crown counsel’s error is that he wishes me to sentence the offender for what he might have done – as an armed “outlaw” - rather than for what he actually did. Thus, the passages in R. v. Morris where the Court of Appeal emphasizes the need to deter and denounce offenders who commit crimes using (usually loaded) firearms (paras. 69-71) simply do not apply in the case at bar as, other than the possession of the unloaded firearm, I reiterate that there is no suggestion in the evidence before me that it was used to commit offences of any kind.

[28] To this I would add that most of the case precedents cited by both counsel were sentences imposed following a trial. In this case, the accused entered a plea of guilty, albeit not one made particularly early in the criminal process. Thus, this accused can claim some additional mitigation of sentence for at least having saved the state the time and expense of a trial, as well as providing some evidence of his rehabilitative prospects.

[29] Crown counsel based his next sentencing submissions on the notion that a substantial custodial penalty “will serve to deter others”. This sentencing philosophy dominated adult sentencing in Canada and elsewhere for many years, and was no doubt one of the reasons why Parliament included “deter[ring]…other persons from committing offences” as one of its legislated “Purpose[s]” of sentencing in its 1996 revisions to the Code (s. 718(b)). General deterrence is listed as but one of several sentencing “objective[s]” that a judge may pursue by way of “just sanctions”. It is the courts, not Parliament, that have directed the situational appropriateness and paramountcy of these various objectives; as Prof. Manson has noted in several of his writings, this “shopping list” by no means obligates a judge to consider general deterrence at any higher level than any of the other six enumerated objectives.

[30] Thirty years ago this month the Supreme Court of Canada held that the general deterrent impact of exemplary sentences cannot and should not be assumed. Its application should rather depend on there being some evidentiary foundation for its deterrent value among a larger population. In R. v. J.J.M. 1993 2 S.C.R. 421 the court cited with approval research conducted by American and Canadian criminologists as to the potential effects of sentences based on general deterrent considerations on youth who congregate in gangs. The court wrote:

“ There is reason to believe that Young Offenders Act dispositions can have an effective deterrent effect. The crimes committed by the young tend to be a group activity. The group lends support and assistance to the prime offenders. The criminological literature is clear that about 80 percent of juvenile delinquency is a group activity, whether as part of an organized gang or with an informal group of accomplices [citations omitted]. If the activity of the group is criminal then the disposition imposed on an individual member of the group should be such that it will deter other members of the group. For example the sentence imposed on one member of a "swarming group" should serve to deter others in the gang.” (at para. 30)

[31] The notion that general deterrence is likely to be more effective among certain potential offender populations than others was reaffirmed in R. v. Lacasse 2015 SCC 64, where the majority of the court quoted with approval several Ontario Court of Appeal sentencing precedents for the proposition that general deterrence is likely to be

“ particularly relevant to offences that might be committed by ordinarily law-abiding people. It is such people, more than chronic offenders, who will be sensitive to harsh sentences. Impaired driving offences are an obvious example of this type of offence, as this Court noted in Proulx ... dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons, with good employment records and families. Arguably, such persons are the ones most likely to be deterred by the threat of severe penalties”. (per Wagner J. at para. 73)

[32] In their seminal 2003 review of the international criminological literature on general deterrence Profs. Doob and Webster proposed abandoning the assumption that general deterrence has any demonstrated efficacy, at least within the broad context of sentencing. In its consideration of the supposed utility of general deterrence in the gun possession case of R. v. Nur 2015 SCC 15, McLachlin C. J. C., speaking for a majority of the court, expressly adopted the reasoning in the Doob & Webster article and wrote that “empirical evidence suggests that the deterrent effect of minimum mandatory sentences does not prevent crime” (at para. 114). [4]

[33] Drawing from the Supreme Court’s reasoning in these three cases, it seems to me to follow fairly logically that those involved in the illegal possession and trafficking of drugs are highly unlikely to be “ordinarily law-abiding people”, and thus are far less likely to be affected by “harsh/exemplary sentences” imposed on others. As the various precedents cited by both counsel make clear, it is obvious that either addiction or illegal profit (or both) drive the enormous volume of reported drug and gun cases that occupy so much of our court’s dockets, seemingly regardless of ever-increasing penalties imposed by trial or appellate judges. Thus, while the various legislative and judicial authorities make clear that sentencing judges are to consider furthering the objective of general deterrence as part of the sentencing calculus, it would seem to have little effect in the kind of case now under consideration.

[34] I therefore caution myself against assuming that any sentence I might impose will have much if any general deterrent effect on those who are, or might become, involved in similar unlawful conduct in Thunder Bay (and adjacent communities). I have no desire to emulate foolish King Canute by imagining that whatever I may say from the bench will do much, if anything, to further the objective of general deterrence among the active or potential criminal subculture. Given both academic and appellate authority as to the very limited utility of sentencing offenders who deliberately choose to involve themselves in inherently illegal activities, I find myself compelled to very much downplay the notion of applying general deterrent considerations as a reasoned basis for sentence in the case at bar in the absence of some evidence on point, as the Supreme Court satisfied itself in J.J.M., supra.

[35] Crown counsel’s further alternative position is that I should impose a custodial sentence in furtherance of the now statutorily codified objective of denunciation (Code s. 718(a)). As Lamer C.J.C. noted in R. v. M. (C.A.) [1996] 1 SCR 500:

“[t]he objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law….Our criminal law is…a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.” (para. 81)

[36] In the Supreme Court’s subsequent decision in R. v. Proulx 2000 SCC 5, the court was asked to consider whether the principle of denunciation could be applied to sentences imposed under the (then) newly enacted conditional sentence regime. Although the court was careful to stipulate that each case would depend on its particular circumstances, the court was unanimous in holding that a conditional sentence wholly or partially based on promoting the objective of denunciation could adequately address this objective. The court stressed that “a just sentence” would more likely be achieved if the conditions attached to such a sentence were to be considerably more rigorous than optional conditions of probation.

[37] Delivering the 2010 judgment of the Ontario Court of Appeal in the child pornography case of R. v. D.G.F. 2010 ONCA 27, [2010] O. J. No. 127, Feldman J.A. made several comments that I have found useful in the determination of the nature of the custodial sentence to be imposed on Mr. O’Dwyer. First, I find it noteworthy that she begins her analysis of the principles to be applied by citing Ruby’s sentencing text for the proposition that “ [o]ur basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed, having regard to the nature of the crime and the circumstances in which it was committed” (Sentencing (7th ed.), p. 27, quoted at para. 18 of D.G.F.; emphasis added). I interpret this as reminding sentencing judges that even where the facts are very serious, a sentence designed with a significant retributive component must still be “an objective, reasoned and measured determination of an appropriate punishment” (R. v. M. (C.A.) para. 80). In other words, while society is quite properly outraged by the seemingly all too ready availability of guns (and their prevalence in the drug trade), sentencing judges must be careful not to be swept up in a moral panic. As Lamer C.J.C. went on to say immediately after the passage I have just cited: “unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more” (para. 80; emphasis in original) [5].

[38] Applying these principles in the case at bar against the backdrop of the principle of restraint articulated by Parliament in s. 718.2(d) of the Code, I am first of the view that the agreed upon facts, combined with what I know of the offender’s background, persuade me that a conditional sentence can adequately address the objective of denunciation enunciated in s.718(a). I do not see this case as so serious that a true custodial sentence is the only punishment that is appropriate in the circumstances (s.718(2)(d)). As a five-judge panel of the Ontario Court of Appeal recently noted in the important case of R. v. Morris 2021 ONCA 680: “[t]he principal of restraint favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle.” (at para. 125)

[39] Second, I note that conditional sentences have been recently imposed in some of the factually considerably more serious cases identified in defence counsel’s sentencing precedents. Without listing them all, suffice it to say that there are several post-Morris Ontario trial and appellate decisions where conditional sentences were imposed in circumstances where the firearm in question was either loaded or ammunition was readily available (see for example R. v. Beharry 2022 ONSC 4370; R. v. McLarty-Mathieu 2022 ONCJ 498).

[40] Third, while I think defence counsel’s submission as to the appropriate length of the conditional sentence is far too long given the facts of this case, I do accept that the optional conditions she proposes adequately differentiate the conditional sentence from the optional conditions of probation she and Crown counsel mutually propose. As the Supreme Court reiterated very recently in R v Hills, 2023 SCC 2:

"When presented with a sufficient evidentiary record, courts should consider how the conditions of confinement — for example, the difference between the supports available while serving a non‑custodial conditional sentence versus serving a custodial sentence in a federal institution — would affect an individual offender." (para. 136)

In other words, I am satisfied with the “penal bite” of the proposed conditional sentence, as Lamer C.J.C. cautioned in R. v. Proulx.

ALLOWANCE FOR TIME SPENT IN PRE-BAIL CUSTODY:

[41] The offender spent 6 days in custody pending release on bail. Defence counsel has produced for my assistance R. v. Dewdney 2021 O.J. No. 4491, a decision of MacKinnon Ont. C. J. describing the conditions in the Thunder Bay District Jail around the time Mr. O’Dwyer was held there pending his bail hearing (paras. 46-73). Given both the conclusion I have come to regarding the nature of the custodial sentence to be imposed, and the rather brief time the offender spent in pre-release detention, I do not think very much turns on this, but for purposes of the record I should say that, had I been minded to impose a sentence of true custody, I would have credited him with such time on a 2:1 basis (12 days).

ALLOWANCE FOR TIME SPENT ON BAIL AWAITING DISPOSITION:

[42] In the case at bar I have no evidence that the approximately 20 months the conditions under which the offender has been subject to a “house arrest” bail have been particularly onerous. He has been living with his parents, he has been able to see his children there and visit them in their own home, and he has been able to work full-time. While I am certain that awaiting a decision – including the time it has taken me to consider counsel’s arguments and to draft these reasons - has been stressful, I have heard no evidence that this is any more than the anxiety with which any offender awaits determination of his fate. In these circumstances, I think defence counsel was quite right not to urge any further credit for time spent subject to these somewhat restrictive bail conditions.

[43] However, defence counsel makes one other point about the offender’s performance while on bail. She suggests – and I think she is right – that evidence he has remained crime-free during this period of fairly rigid conditional release augurs well for his potential to comply with a conditional sentence.

CUSTODIAL SENTENCE:

[44] The offender is conditionally sentenced to a total term of 240 days (approximately 8 months), apportioned as follows:

(1) possession of a motor vehicle knowing that it was obtained by theft – 60 days.

(2) possession of a revolver knowing that he was not the holder of a licence under which he may possess it – 180 days consecutive.

(For greater clarity these two conditional sentences are to be served consecutively to one another.)

(3) being an occupant of a motor vehicle in which he knew there was a revolver – 15 days conditional sentence concurrent [6].

(4) Possession of a weapon dangerous to the public peace (s. 88(1)) – 15 days conditional sentence concurrent.

OPTIONAL CONDITIONS ATTACHED TO THE CONDITIONAL SENTENCE:

[45] In addition to the statutory conditions that are compulsory in any conditional sentence order, defence counsel has proposed several optional conditions. I agree that they generally seem appropriate, but I have necessarily adjusted them (a) given that the length of the conditional sentence is shorter than she proposed, and (b) given that his youngest child is expected to be born in April 2023. The optional conditions are:

• Report to his conditional sentence supervisor by telephone within 2 working days;
• Abstain from the consumption of drugs or any other intoxicating substance [7] except with a valid medical prescription in your name; [8]
• Abstain from owning or possessing any weapons or applying for any weapons licences;
• Attend and actively participate in all assessments, treatments, counselling and rehabilitative programming as recommended by his conditional sentence supervisor, in particular for substance abuse;
• Execute any releases necessary for his supervisor to monitor his attendance, participation and completion of any assessments, treatments, counselling and rehabilitative programming;
• Abide by a curfew of house arrest for the first 45 days of the conditional sentence order, followed by a curfew of 10 p.m. – 6 a.m. for the remainder of the conditional sentence, except i. For medical emergencies involving himself or a member of his immediate family; ii. While travelling to, from or while at work – proof of employment/schedule of employment is to be filed in advance with the supervisor; iii. To obtain the necessities of life once weekly for a period of two hours; iv. On any other occasion with the advance written permission of the supervisor, to be carried by Mr. O’Dwyer on his person.
• Not to have any contact or communication with Megan Belluz, and to remain at least 50 metres from any place he knows her to live, work, attend school or be.

THE LENGTH AND OPTIONAL CONDITIONS OF PROBATION:

[46] Immediately upon conclusion of the conditional sentence the offender will be subject to an order of probation for a period of 18 months (as jointly proposed by counsel). In addition to the statutory conditions applicable to any probation order, the following optional conditions (agreed to by both counsel) will be imposed:

• Report to a probation officer within two working days of the commencement of the probationary period, and thereafter as directed by the probation officer;
• Abstain from the consumption of drugs or any other intoxicating substance except with a valid medical prescription in your name;
• Abstain from owning or possessing any weapons or applying for any weapons licences;
• Attend and actively participate in all assessments, treatments, counselling and rehabilitative programming as recommended by his conditional sentence supervisor, in particular for substance abuse;
• Execute any releases necessary for his supervisor to monitor his attendance, participation and completion of any assessments, treatments, counselling and rehabilitative programming;
• Not to have any contact or communication with Megan Belluz, and to remain at least 50 metres from any place he knows her to live, work, attend school or be.
• Perform 80 hours of community service, at a rate of no less than 8 hours per month, commencing no later than the second month of his probationary period, and to be concluded no later than the twelfth month of his probationary period; [9]

[47] If either counsel (or the court clerk) consider that any of these conditional sentence and probation conditions should be modified or deleted, or if other conditions should be added, they are welcome to contact me.

[48] I believe that reasonable, fair-minded members of this community, properly informed of the inter-related variables described in these reasons, would support such a sentence, especially given the compulsory and optional conditions of both the conditional sentence and probation orders.

ANCILLARY ORDERS [10]:

[49] There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Code.

[50] The offender will be prohibited from being in possession of any firearms etc. for a period of 20 years pursuant to s.109 of the Code.

[51] Effective 30 days from today’s date, there will be an order for forfeiture and destruction of the firearm seized from the offender.

Released: February 16, 2023 Signed: “Justice D.P. Cole”

[1] A. Ashworth Sentencing and Criminal Justice (Cambridge: 2005). Though there are later editions, I am using the 4th ed. (at p. 188) as that is what I have readily to hand.

[2] Data collection in this complex area tends to be fraught with inconsistencies in reporting - See Text box 2. Further, even though the Juristat uses data from the Covid pandemic era, that obviously socially relevant factor is not mentioned anywhere in the article.

[3] Indeed, it would be interesting to know whether the facts of this offence (occurring in March 2021) were reported by the Thunder Bay police as a “violent firearm-related crime”; factually, there was no violence (nor any victim of violence) involved in any of the offences under consideration here. If it was not so reported, the Juristat data does not reflect O’Dwyer’s offences or their predicate conduct, in which case, this data is not particularly helpful (see Text box 1).

[4] And see more recently Petrich et al. “Custodial Sentences and Reoffending: A Meta-Analytic Review”. Crime and Justice Vol. 50, 2021.

[5] Though I acknowledge the importance of the point, I choose not to address Lamer C.J.C.’s concern that it is ethically improper to use one person as a resource for another.

[6] Crown counsel fairly conceded that a concurrent sentence for the s.94 offence would be appropriate in the circumstances of this case.

[7] Defence counsel proposed a clause prohibiting the offender from purchasing or consuming alcohol. Since alcohol was not a contributing factor to his current criminality, I decline to impose this condition.

[8] Defence counsel proposes that the offender additionally be required to provide samples of bodily substances to monitor his compliance with the condition that he abstain from consuming illegal drugs. I have decided not to impose such a condition as I do not view this offender’s substance abuse issues to be so acute as to require the imposition of a quite intrusive term as s.742.3(2)(a.2) of the Code permits.

[9] My purpose here is to have the offender perform what the Scottish legal theorist Duff has aptly referred to as “secular penance”.

[10] The no contact order agreed upon by both counsel has already been incorporated as one of the optional conditions of both the conditional sentence and probation orders.