Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 04 11 COURT FILE No.: Toronto 9982270006225, 9982270006226

BETWEEN:

HIS MAJESTY THE KING

— AND —

OMARI RODNEY

Before: Justice David S. Rose

Heard on: March 13, 2024 Reasons for Judgment released on: April 11, 2024

Counsel: S. Duffey, counsel for the Crown M. Huberman, amicus curiae

David Rose J.:

Reasons for Judgment

Background

[1] On December 1, 2023 I convicted Mr. Rodney of possession of a loaded 9mm Taurus handgun as well as 53.26 grams of cocaine, and 40.25 grams of methamphetamine. He also had a quantity of cash when he was arrested. Mr. Rodney was arrested on September 18, 2022 on Maitland Street near Yonge Street in downtown Toronto. A police detective had been following Mr. Rodney from College Street near Seaton with a view to detaining him because he bore physical similarities to someone else who was being actively investigated for domestic violence. Before he could be detained he ran and, in the course of that foot chase, threw away a 9mm Taurus handgun into the street. He was arrested within seconds and the drugs and cash found on him. The gun had a defaced serial number and Mr. Rodney was the subject of a weapons prohibition at the time. Reasons for judgement are found at R v. Rodney 2023 ONCJ 526.

[2] At trial Mr. Rodney’s defence was entirely centered on various alleged Charter infringements. While these were unsuccessful, it was a focussed trial.

[3] After I convicted Mr. Rodney the Crown applied to revoke Mr. Rodney’s bail but, having heard from one of his sureties, I declined. Mr. Rodney’s bail continued until December 15, when the sureties applied to revoke the bail. Mr. Rodney has not been located since. When the case was next up before me for sentencing on February 8 I found that Mr. Rodney had absconded and issued a warrant for his arrest under s. 475(1) of the Criminal Code. At that time the Crown lead materials in support of that, including a recording of some of Mr. Rodney’s guilty pleas. Mr. Huberman withdrew, but I appointed him amicus curiae. Ms. Duffey said that she would be seeking a lengthy penitentiary sentence for Mr. Rodney, and did not oppose Mr. Huberman carrying on as a friend of the court. Mr. Huberman’s assistance in gathering materials and making submissions on the appropriate sentence were quite helpful in this sentencing.

[4] It is unclear why the case was not brought before me immediately after the sureties applied to withdraw on December 15, although I do not fault either Ms. Duffey or Mr. Huberman. This seems to have been an administrative oversight.

Criminal Record

[5] Mr. Rodney has a criminal record with the following entries:

• 2014-05-21 (YCJA)
  • Theft Under $5000
  • Probation and 13 Days Pre-Sentence Custody
• 2016-08-19 Oshawa, ON
  • Criminal Harassment
  • FTC Recognizance
  • Carry Concealed Weapon
  • Suspended Sentence & Probation 3 years (4 months pre-sentence custody)
• 2016-08-24 Toronto, ON
  • Carry Concealed Weapon
  • FTC Recognizance
  • (1) 1$ (14 days pre-sentence custody) (2) 1$
• 2019-01-16 Barrie, ON
  • Poss Schedule I Substance
  • Obstruct Peace Officer
  • (1) 150 days pre-sentence custody, (2) 60 days custody
• 2019-03-15 Barrie, ON
  • Assault with a Weapon
  • Assault CBH
  • FTC Recognizance
  • (1) 40 days and Probation 3 years (415 days PTC)
  • (2) 40 days conc & Probation 3 years, s. 110 of the Criminal Code for 10 years
  • (3) 30 days conc & Probation 3 years
• 2022-02-07 Toronto, ON
  • Traffic in Schedule I Substance
  • 1 day (90 days pre-sentence custody)
• 2022-02-07 Toronto, ON
  • FTC Probation
  • 1-day conc (15 days pre-sentence custody)

[6] Notably, the March 15, 2019 entry for Assault with a Weapon was particularized when the Crown filed the recording of the sentencing proceedings. In that incident Mr. Rodney kicked his former partner in the face, used a knife to carve his initials into her forehead, and stabbed her in the lower body. He was on a non-communication release at the time.

[7] A transcript from the February 7, 2022 sentencing proceedings was filed. That was a hand to hand transaction of .38 grams of methamphetamine to an undercover police officer for $40.00. At that time Mr. Rodney admitted that he had not been in contact with his probation officer from May of 2019 November 30, 2021. Aside from the fail to comply offences, I find that Mr. Rodney has graduated from being a low level hand to hand drug dealer to one trafficking at the ounce level. When he was arrested for this charge he had on him just less than 2 oz of cocaine and 1.4 oz of meth.

Personal Circumstances and Prospects for Rehabilitation

[8] Although Mr. Rodney did not participate in its preparation because of his flight, a Pre-Sentence Report (PSR) was nonetheless prepared. He is 27 years old, and appears to have grown up in a loving, supportive family, but when he was a teenager he started to make bad choices. His parents attempted to steer him in a better direction but to no avail. Mr. Rodney is bilingual but it is unclear if he graduated from high school. Apparently his high school record has suspensions from skipping classes and physical altercations. Mr. Rodney worked at his family’s bakery while he was in high school. There is a suggestion in the sentencing materials that Mr. Rodney has mental health challenges but these were not particularized or diagnosed. I would place very minimal weight on the argument that mental health issues explain his conduct.

[9] Mr. Rodney’s father testified at sentencing. He gave evidence that his son was in a loving family. He and Omari’s mother split up when Omari was about 6 because of financial stresses. From that point Omari’s behaviour started sliding. By the time Omari was a teenager he outright rejected his family’s efforts to start a bakery. As Mr. Rodney testified, his son had a deep seated fear of failure and saw the family business as doomed to fail. While it ultimately did fail, from the evidence before me, that was not the result of his family’s efforts. Rather, the business grew too quickly and could not sustain its business model.

[10] It is striking to me that Mr. Rodney’s family is still so supportive of him. His sister Sharifa Patrick wrote that she has “ongoing support” and wants her brother to “…get back on track again to live a better and happier life”. This is notable because Ms. Patrick and her mother Charmaine signed as sureties in the amount of $30,000.00 only to have Mr. Rodney abscond. It is not clear to me that Mr. Rodney fully understands the gift of support that his family is holding out.

[11] From the PSR it would appear that Mr. Rodney had every chance of success in life from both his father’s and mother’s sides of the family. That matches the testimony his sister gave in evidence when she testified about the bail revocation application. No learning disabilities or substance abuse issues were noted. I would emphasise the family support for Mr. Rodney that I have seen in this case. Mr. Rodney’s family strikes me as entirely functioning and devoted to Omari despite this troubles. Mr. Rodney has had no shortage of family members who have been extremely positive role models. Beyond his immediate family, one of his aunts is a retired Justice of the Peace.

[12] There are instances when Mr. Rodney faced racism growing up, but these appear to be isolated on the evidence before me so it is unclear why, having been raised in this environment, Mr. Rodney chose a different path. The evidence of racism experienced by Mr. Rodney does not rise to the level where I could find that it contributed to his criminal record.

Pre-Sentence Custody

[13] Mr. Rodney served 320 real days of pre-sentence custody. This is the equivalent of 480 days, or 16 months, after credit under R. v. Summers 2014 SCC 26. Records from the Toronto South Detention Center show that, while on remand, he was subjected to partial lock-down of 160 days. I take judicial notice of the harsh conditions at the Toronto jail but there is no evidence about the specific impact on him, see R. v. Duncan 2016 ONCA 754 at par. 6. There is, on the other hand, evidence that he completed over 20 rehabilitative programs while on remand. These range from “Overdose Assessment and Response” to “Problem Solving” to “Looking for Work”.

[14] In this case neither Crown or amicus quantified the Duncan credit in submissions. As a result, pre-trial confinement conditions are a mitigating circumstance in the overall assessment of a fit and appropriate sentence, see R. v. Marshall 2021 ONCA 344 at par. 52.

Submissions

[15] The Crown asks for global sentence of 7.5 years less Pre-Sentence Custody. The Crown argues that real sentence in this case should be 8.5 year but should be reduced to 7.5 because of the totality principle.

[16] Crown also asks for ancillary forfeiture orders for: $388.55; the firearm; and the drugs, as well as a DNA Databanking order and s. 109 of the Criminal Code for life.

[17] Amicus suggests that the appropriate global sentence of 5 years.

Aggravating Circumstances

[18] In this case I find the aggravating circumstances on the firearms offences to be:

• The gun was a semi-automatic handgun with 8 rounds in it. Moreover the gun had a defaced serial number which emphasises its unlawful purpose. There is a social menace inherent in Mr. Rodney’s possession of this weapon. There is no question that possession of this gun fell within the true crime category of firearms offences, see R. v. Smith 2023 ONCA 620, R. v. Nur 2013 ONCA 677, R. v. Danvers, [2005] O.J. No. 3532 (CA), R. v. Ferrigon, [2007] O.J. No. 1883 (SC), R. v. Kawal 2018 ONSC 7531;
• Mr. Rodney was on a s. 109 weapons prohibition at the time. He was someone who should not be in possession of a gun;
• The gun was discarded during the foot chase hitting a car and falling onto Maitland Street. This was only steps from Yonge Street, which put the gun into an open public area in a very busy part of downtown Toronto. From time to time guns go off accidentally when they are tossed to the ground. That didn’t happen this time but in my finding that was by sheer luck;
• The gun was carried by Mr. Rodney along with 3.5 oz of Schedule I substances. There is no doubt that the gun was intended for street enforcement during drug deals. Guns and drugs are a volatile mix, posing a significant risk to public safety, see R. v. Wong 2012 ONCA 767;
• for these reasons Mr. Rodney bears significant moral responsibility for the offences;
• Mr. Rodney has 3 entries for weapons offences in the last 8 years. The last one in 2019 attracted a 450 day sentence, and provides a basis to conclude that Mr. Rodney has in the past used a weapon to inflict harm. Beyond that he has an assault causing bodily harm entry in 2019 and a criminal harassment entry in 2016. Mr. Rodney has a history of violence;
• Toronto has an ongoing plague of gun crimes, see R. v. Brown 2010 ONCA 745, R. v. St. Clair 2018 ONSC 7028;
• There is no evidence of insight by Mr. Rodney;

[19] The aggravating circumstances on the drug charges are:

• The amounts are at a level up from street level trafficking. With larger amounts comes larger profits. I agree with the Crown that profit is the only apparent reason for possessing 3.5 oz of Schedule 1 substances. Increased profits also comes with increased risk, which in drug trafficking terms means someone getting hurt, or worse.
• The seized substances are highly addictive. Cocaine, and particularly methamphetamine cause significant social harm. Trafficking exploits those in need.
• Mr. Rodney has a recent conviction for trafficking a Schedule 1 substance and a 2019 entry for simple possession of a schedule 1 substance. He is a drug trafficker who was apparently moving up the ladder in terms of volume.
• The cash seized furnishes a basis to find that Mr. Rodney was actively engaged in drug trafficking. The arrest interrupted it.

Mitigating Circumstances

[20] There are some mitigating circumstances, but they are neither strong nor plentiful. Mr. Rodney was subjected to lockdown for days on end while on remand. He has a supportive family. He completed substantial programming while on remand, but not enough apparently to prevent him from absconding his trial once the result was known. It is somewhat mitigating that he instructed Mr. Huberman to run a focussed trial, although I tend to agree with Ms. Duffey that the only real defence available to him was Charter based, and not any of the elements of the charges. The Crown had a strong case on the essential elements of the offence. It is not an aggravating circumstance that he ran a trial.

Prospects for Rehabilitation

[21] I would find that Mr. Rodney’s prospects for rehabilitation lie with his family support. That finding is guarded insofar as Mr. Rodney does not seem interested in genuinely taking that support. At 27 years old, Mr. Rodney’s prospects for rehabilitation are diminishing quickly. Mr. Rodney chose to abscond, which leads me to find that he is uninterested in facing consequences, which is the first step in rehabilitation, see R. v. Tully 2022 ONSC 3515. His lack of insight in the face of such a supportive family leads to my finding that his rehabilitative prospects are minimal.

Sentencing Principles

[22] With those findings in place I find that denunciation and deterrence are predominant factors animating this sentence. Rehabilitation is a concern but to a lesser degree.

Case Law on Sentencing Ranges

[23] Mr. Rodney has prior convictions for weapons offences but none for a firearm. The range of sentence for the gun charge is from upper reformatory to mid single digit penitentiary terms for first time offenders. I find Justice Doherty’s identification of maximum reformatory to low penitentiary terms as a starting point authoritative for illegal possession of a handgun in circumstances of true time, see R. v. Nur 2013 ONCA 677 at par. 109. There are cases which impose conditional sentences for illegal possession of a handgun, but they are not plentiful, see R. v. Menigistab 2020 ONCJ 138, R. v. Canepa 2011 ONSC 1406 to 2 year conditional sentence (R. v. Hassan 2017 ONSC 4570). The range of custodial sentences for first time offenders is illustrated by R. v. Filian Jiminez 2014 ONCA 601 (18 months jail upheld as being very low), R. v. DaSilva-Smith 2022 ONSC 6386 (21 months), 2 years less a day, see R. v. Cadienhead [2015] O.J. No. 3125), R. v. Nur 2015 SCC 15 (40 months), R. v. Mahamet-Zene 2018 ONSC 1050 (40 months), R. v. Serrano 2018 ONSC 6785 (36 months), R. v. Thavakularatnam 2018 ONSC 2380 (40 months).

[24] When ounce level schedule 1 offences are combined with possession of a loaded handgun the sentence reaches into several years, see: R. v. Boughner 6 years; R. v. Crevier 2015 ONCA 619 6 years; R. v. Ribble 2019 ONCJ 640 9 years; R. v. Duhamel 2013 ONSC 1340 7 years; )

[25] Factors which tend to elevate the sentence include prior convictions for firearms offence, such as Duhamel (supra); fentanyl as one of the seized drugs as in Ribble (supra); larger amounts of substances beyond mere street level amounts, such as R. v. Owusu 2024 ONSC 671.

[26] Mitigating effects include a guilty plea, see R. v. Ahmed 2016 ONCA 831; smaller amounts of drugs; see R. v. McAlpine 2024 ONSC 797, R. v. Landell 2023 ONSC 6526.

Totality Principle

[27] There is no shortage of cases dealing with sentences for those found guilty of trafficking schedule 1 offences in the ounce level, and also on the other hand possession of a loaded firearm simpliciter. As Code J. summarized, the sentencing range for 3 ounces of Schedule 1 substance is from 3 – 5 years, see R. v. Graham 2018 ONSC 6817. In this case both are combined. The result is that the totality principle under s. 718.2(c) of the Criminal Code is engaged. Failure to apply the totality principle would result in a crushing sentence for Mr. Rodney. While he has served the equivalent of one lengthy reformatory sentence, this will be his first penitentiary sentence. The convictions registered in this case involve multiple counts and kinds of charges from one single transaction. This permits concurrent sentences which might otherwise be served consecutively, see R. v. May 2012 ABCA 213.

Sentence Imposed

[28] Sentencing is not an exercise in precision, but based on the foregoing I would sentence Mr. Rodney to the following:

[29]

• Count 1 Possession of a prohibited firearm per s. 91(1) of the Criminal Code;
  • This Count is stayed pursuant to the principle from R. v. Kienapple, [1975] 1 S.C.R. 729
• Count 2 Possession of a loaded prohibited firearm per s. 95(1) of the Criminal Code;
  • 4 years
• Count 3 Carry Firearm carelessly per s. 86(1) of the Criminal Code;
  • 2 years concurrent
• Count 4 Carry concealed weapon per s. 90(1) of the Criminal Code;
  • 2 years concurrent
• Count 5 Possession of a firearm with serial number altered per s. 108(1) of the Criminal Code;
  • 1 year concurrent
• Count 6 Possess Firearm while prohibited per s. 117.01 of the Criminal Code;
  • 1 year consecutive
• CDSA Possession of Controlled Substance for Purpose of Trafficking per s. 5(2) of CDSA;
  • 2.5 years consecutive, but I would reduce this sentence to 1 year 6 months years consecutive because of the totality principle.
• Possession property obtained by Crime;
  • 1 year concurrent

[30] The net sentence is therefore 6.5 years or 78 months. From this I would deduct Mr. Rodney’s 16 months of pre-sentence custody from Counts 2, 3, and 4 leaving a net sentence of 62 months in jail, or 5 years and 2 months.

[31] There will be a lifetime weapons prohibition and a DNA Order as secondary designated offences on all counts. The cash and firearm seized are ordered forfeited.

[32] Under the circumstances the victim fine surcharge is waived.

Conclusion

[33] Mr. Huberman and Ms. Duffey were quite helpful in their materials and submissions.

Released: April 11, 2024 Signed: Justice D. Rose