Ontario Court of Justice

DATE: 2024-06-07 Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

TYRI KING-JOSEPH

Before: Justice Mara Greene

Reasons for Judgment released June 7, 2024

Counsel: J. Casey, for the Crown M. Hayworth, for Tyri King-Joseph

Endorsement

[1] Tyri King-Joseph entered a plea of guilty at the close of his preliminary inquiry to four offences. He plead guilty to possession of a loaded, restricted firearm, possession of a prohibited firearm, possession of a prohibited device, namely an extended magazine and possession of cocaine for the purpose of trafficking. At the request of Crown counsel, the possession of a prohibited firearm charge is stayed.

[2] Mr. King-Joseph’s sentencing was adjourned so that a Morris report could be prepared. Unfortunately, the delay in the report being generated became too long and Mr. King-Joseph decided to proceed with his sentencing without the benefit of a Morris report. Instead, he relied on the standard pre-sentence report. As a result of the ongoing delays in receiving the reports, Mr. King-Joseph’s sentencing took place eleven months after he entered his plea of guilty.

Circumstances of the Offence

[3] On May 25, 2022, the police attended at Mr. King-Joseph’s residence to execute a search warrant. The police kicked in Mr. King-Joseph’s’ locked bedroom door and located Mr. King-Joseph inside the room. Upon searching the room, the police found a loaded firearm on the floor of the closet. Nine cartridges were in the firearm, and it was also equipped with a laser sight. The police also found two loaded magazines in a desk drawer, one of which was an extended magazine. They also found a fourth magazine that was empty.

[4] In addition to the weapons, the police located 24.28 grams of cocaine in Mr. King-Joseph’s bedroom.

Information about the Offender

[5] Mr. King-Joseph is presently 28 years old. He was 26 years old at the time of the offence. Presently, Mr. King-Joseph is living with his father and stepmother, is gainfully employed, and in a committed relationship.

[6] Mr. King-Joseph was born in Kingston, Ontario. His parents divorced when he was young. Both remarried and had children with their new partners. Mr. King-Joseph lived with his mother and stepfather during his formative years. He saw his biological father every other weekend.

[7] Mr. King-Joseph told the author of the pre-sentence report that one of his challenges growing up was being raised by a white step-father when Mr. King-Joseph is black. Mr. King-Joseph stated that he was bullied at school because of this. The fact that his step-father is white was further complicated by the fact that in Mr. King-Joseph’s mind, his mother was ashamed of being black. This played out in Mr. King-Joseph’s own self-perception. In addition, Mr. King-Joseph reported that he was sent to a French high school that only had three black children in it. Mr. King-Joseph constantly felt like he did not fit in.

[8] As a result of all this, Mr. King-Joseph feels that he did not have a significant black role model growing up.

[9] When Mr. King-Joseph was 15 his mother became ill with cervical cancer. This added to the challenges that Mr. King-Joseph faced during his teenage years. Mr. King-Joseph described his relationship with his mother as difficult. This was confirmed by other parties.

[10] Mr. King-Joseph has experienced racism in his life. The most notable example was when he was racially profiled by police, arrested and charged with an offence he did not commit. The charges were later dropped.

[11] Mr. King-Joseph also suffered a significant upset when he was in his last year of high school. Mr. King-Joseph was a very good basketball player. Basketball was very important to Mr. King-Joseph and was the one place where he fit in. Mr. King-Joseph was offered an opportunity to attend an elite basketball camp in the United States. He had to miss going to camp, however, because there was a mix-up with his exam schedule. Mr. King-Joseph did graduate from high school, but missed this golden opportunity.

[12] In relation to Mr. King-Joseph’s involvement with drugs, he started using drugs in his teens. It later, however, became an escape mechanism for him. His cocaine use became problematic by the time of his arrest. Mr. King-Joseph reports that he stopped using drugs after he was charged with this offence.

[13] All parties interviewed by the author of the PSR reported that Mr. King-Joseph is a good person, a bright young man with a good future. He is described as a good friend and a good person.

[14] Mr. King-Jospeh is remorseful for his actions. He described it as a lapse in judgment. He has stopped using drugs and has expressed an intention to dissociate himself from the environment that led to him being in possession of a loaded firearm and cocaine.

Position of the Parties

[15] Mr. King-Jospeh has been on a release for two years without incident. He is on the right path and has a supportive family. Counsel for Mr. King-Joseph argued that the context for Mr. King-Joseph’s criminality is that he experienced racism in the community and then racial profiling by the police. He left high school feeling listless and alone after losing his opportunity to play basketball. In this context, Mr. King-Joseph turned to drugs and which led to him selling drugs and being in possession of the loaded firearm and extended magazine. Based on Mr. King-Joseph’s success while on release and his positive steps towards rehabilitation, counsel argued that a sentence of two years less one day to be served in the community should be imposed.

[16] Crown counsel argued that a four-year sentence should be imposed for the possession of the loaded firearm with a sentence of one year concurrent for the oversized magazine and nine months concurrent for the possession of the cocaine for the purpose of trafficking. In arguing that this is the appropriate sentence, Crown counsel focused on the gravity of the offence and the range of sentence normally imposed for similar offences.

General Principles of Sentencing

[17] In determining an appropriate sentence for Mr. King-Joseph, I am required to consider the purposes and principles of sentencing set out in s. 718 of the Criminal Code.

[18] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[19] While the Criminal Code identifies a host of objectives that a judge must consider in assessing the appropriate sentence, how much weight a judge gives to any of the objectives is determined on a case-by-case basis. As was stated in R. v. Morris, 2021 ONCA 680 “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.”

[20] The sentence I impose must also be proportionate to the gravity of the offence and the degree of responsibility of the offender taking into account all the aggravating and mitigating factors. I must also take into account the principle of restraint when imposing a period of incarceration.

[21] To that end, it is necessary to consider all the aggravating and mitigating factors in this case.

[22] There are a number of aggravating factors in this case. All relate to the circumstances of the offences. First, Mr. King-Joseph was in possession of both guns and drugs. The toxic combination of these two items has been repeatedly referenced in the sentencing jurisprudence. The firearm in Mr. King-Joseph’s possession was loaded and there were three more magazines on hand, two of which were also loaded and one was oversized. As Crown counsel properly pointed out, given the volume of ammunition at the ready, 85 rounds, the risk to life was overwhelming. The firearm also had a sight on it and the firearm and ammunition were not stored properly.

Mitigating Factors

There are a host of mitigating factors in this case. They include:

• Mr. King-Joseph entered a plea of guilty.
• Mr. King-Jospeh takes responsibility for his actions and has insight into his behaviour.
• Mr. King-Joseph has no criminal record.
• Mr. King-Joseph is relatively young and has great prospects for rehabilitation.
• Mr. King-Joseph is employed and has a supportive girlfriend and family.
• Mr. King-Joseph has experienced racism which includes negative involvement with the police.
• Mr. King-Joseph faced a series of challenges in his teenage years, that led to him abusing drugs. Mr. King-Joseph has now stopped using drugs.

[23] The offences that Mr. King-Joseph committed are very serious. As noted above, he had a loaded firearm, loaded magazines, an extended magazine and a significant amount of cocaine in his possession. It is well recognized that gun crimes pose a real and immediate danger to public safety. As has been stated many times, “handguns exist to maim or kill people”. In deciding to possess a loaded firearm with additional ammunition loaded and at the ready in two other magazines, the person possessing it must have decided they were prepared to use it. In the case at bar, Mr. King-Joseph was also in possession of cocaine for the purpose of trafficking. As I noted in R. v. Barrett, unreported November 14, 2023, “when firearms are linked with possessing drugs for the purpose of trafficking, the offence is even more serious. This is because the firearm becomes a tool of the trade”. Given the threat to public safety posed by firearms, and the toxic combination of guns and drugs, the objectives of deterrence and denunciation must be paramount in this case.

Range of sentence normally imposed

[24] With this backdrop in mind, it is helpful to review the range of sentences normally imposed for similar offences.

[25] There is now a large body of case law outlining the range of sentence for first offenders who possess firearms. As noted by Justice Copeland in R. v. Stewart, 2022 ONSC 6977, at para 74,

The range of sentence for a first offence of firearm possession offences is sometimes stated as three to five years. However, stating the range in this manner excludes an established range of sentences as low as upper reformatory (including conditional sentences) for young first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality such as drug trafficking. In general, sentences above three years involve some other criminality such as drug trafficking connected to the firearm possession: R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras 47-48; R. v. Graham, 2018 ONSC 6817 at para. 38; R. v. Beharry, 2022 ONSC 4370 at para 31.

[26] In R. v. Morris, supra, the Court of Appeal held that a three year sentence will often be an appropriate sentence for section 95 offences. The Court went on to state, that there will be cases where sentences just below two years will be appropriate. The Court further identified the value of imposing conditional sentences when sentencing black offenders. The Court of Appeal held at para 129,

The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders.

[27] In my view, reviewing the relevant case law clearly establishes that the range of sentences normally imposed where a firearm and drugs are possessed by the same person is three to five years. This range is generally reserved for cases where the firearm is used as a “tool of the trade”. The range of sentence where an offender is in possession of a firearm without any drugs is often significantly lower. As was stated by Band J. in R. v. Edwards, 2023 ONCJ 53 at para 41,

It is important to plot Mr. Edwards’ possession of a firearm on the spectrum described by Justice Doherty in R. v. Nur, 2013 ONCA 677 at para 51 (aff’d 2015 SCC 15 at para 82). At one end stands the outlaw who possesses a firearm as a tool of his or her criminal trade; at the other, a person who commits what is essentially a regulatory offence. Mr. Edward’ conduct is serious, and lies between the two extremes. However, Mr. Edwards is not the ‘outlaw’ that Justice Doherty described. There is no evidence that he was engaged in any other criminality or that he carried the firearm as a “tool of the trade”. As a result, I find that the three-to-five-year range that is often cited as appropriate for section 95 offences does not apply: see Stewart at para 74 and Beharry at paras 30-31, and the cases they cite. Cases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or low penitentiary range (Ibid; see also Smickle and Morris at paras 125 and 131).

[28] In R. v. Gordon-Brown, 2024 ONSC 1300, Justice Code reviewed the range of sentence for guns and drugs in great detail. Justice Code held that the range for first offences under section 95 of the Criminal Code is between two years less a day and five years. In relation to possession of prohibited devices, Justice Code noted that the range for these offenses is very broad to reflect the broad range of prohibited items. Justice Code sentenced Mr. Gordon-Brown to three years for possession of a loaded firearm and one year consecutive for the possession of a loaded 50 round magazine (a prohibited device). An additional consecutive sentence was imposed for trafficking in both fentanyl and cocaine.

[29] In R. v. Marfo, 2020 ONSC 5663, a case that is factually quite similar to the case at bar, the offender was found guilty of possessing a loaded firearm, possession of an over capacity magazine and possession of crack cocaine. All three items were located in his residence. In that case, a sentence of 24 months less deductions for pre-sentence custody and Downs credit was imposed. A conditional sentence was deemed to not be an appropriate sentence.

[30] While a review of the case law on section 95 offences establishes that in the vast majority of cases three years or more is imposed, there is now a growing body of cases where conditional sentences have been imposed for youthful first offenders with good prospects for rehabilitation and the presence of some social context evidence. It is this body of case law that counsel relies on in support of his request for a conditional sentence in this case. In light of counsel’s position, it is helpful to review some of those cases.

[31] In R. v. Desmond-Robinson, 2022 ONCA 369 a conditional sentence was imposed for a youthful first offender convicted of possession cocaine and possession of a sawed-off rifle. Unlike the case at bar, in Desmond-Robinson, the trial judge found that the firearm was not connected with any criminal activity involving drug trafficking. Moreover, the sentence was imposed five years after the offence. Since committing the offence, the offender had finished school and was working full time as a chef. In addition, his moral responsibility was diminished in light of his background.

[32] In R. v. Lewis, 2022 ONSC 1260 the sentencing judge held that a sentence of two years would have been imposed for possessing a loaded gun and possessing cocaine. Once pre-sentence custody and downs credit was deducted, however, only six months remained on the sentence. The sentencing judge held that the remaining six-month sentence could be served in the community. In reaching this conclusion the sentencing judge noted that while Mr. Lewis was convicted of possessing 49.7 grams cocaine, an amount usually consistent with trafficking, given the plea arrangement the trial judge could not conclude that Mr. Lewis was trafficking in cocaine nor could the sentencing judge conclude that the gun was possessed to enable drug trafficking. As such the sentencing judge specially noted that he could not find that the “toxic combination” of guns and drugs was present in that case.

[33] In R. v. Jeffery, 2022 ONSC 3829 Justice Leibovich imposed a conditional sentence order of two years less one day for possession of a firearm while in a vehicle. In imposing a conditional sentence, the sentencing judge specifically stated that the possession of the firearm was not linked to drug sales and the firearm was not loaded.

[34] In R. v. Beharry, 2022 ONSC 4370, Justice Schreck imposed a conditional sentence order for possession of a loaded firearm while in a motor vehicle. In imposing this sentence, Justice Schreck noted that Mr. Beharry was not an “outlaw” who carried the firearm as a tool of the trade.

[35] Finally, in R. v. Stewart, 2022 ONSC 6977, Justice Copeland imposed a conditional sentence for possession of a loaded firearm and an oversized magazine. Again, no drugs were involved in this offence.

[36] In every case where a conditional sentence was deemed appropriate, the sentencing judge commented that the firearm was not linked to trafficking in narcotics. In my view, this is a significant distinguishing feature between the case at bar and the cases where conditional sentences were imposed.

The Appropriate sentence in the case at bar

[37] The gravity of the offence in the case at bar is significant. Mr. King-Joseph was in possession of a significant amount of cocaine for the purpose of trafficking. He had a loaded firearm with spare magazines that were also loaded, one of which was oversized. The amount of harm that Mr. King-Joseph could have done had he chosen to use the firearm is significant. Given the amount of drugs present and Mr. King-Joseph’s admission that he had it for the purpose of trafficking, this possession of the firearm is a true crime and supports the conclusion that Mr. King-Joseph was in possession of the firearm as a tool his drug trade. The offending behaviour in the case at bar falls squarely in the range of three to five years as identified by the appellate courts.

[38] On the other hand, in looking at Mr. King-Joseph’s personal situation, in my view, his moral culpability is reduced. I reach this conclusion for a number of reasons. First of all, he has suffered a number of significant challenges growing up that impacted his life significantly and led to his use and abuse of drugs. Secondly, while Mr. King-Joseph did not grow up in an economically challenged home, he still was exposed to racism, racial profiling by police and bullying because of his race at school. Thirdly, Mr. King-Joseph’s exposure to racism was even more pronounced by the fact that his mother was ashamed of the colour of her skin and Mr. King-Joseph had no other black role models to guide him and help him navigate the discrimination he faced.

[39] In the case at bar, I did not have the benefit of what has been commonly referred to as a Morris report. This is because the delay in obtaining the report was so long that Mr. King-Joseph decided to forgo the benefit of the report so that his matter could be completed. I do not fault Mr. King-Joseph for making this decision. He was on a relatively strict bail for a long time, his life was put on hold while waiting for his sentencing hearing in a case where there is a high likelihood that he would go to jail. In other cases, judges have found that the absence of the report was not significant because there was other information about the offender’s history. I do not reach the same conclusion in this case. While I have the benefit of a very thorough PSR in this case, having read some social context reports, in my view a host of information is missing. In these specialized reports, the author does not merely outline the factual history of the discrimination suffered by the offender. The reports I have read explain the impact of the discrimination on the offender’s choices and actions. I do not have the benefit of that kind of information in this case. I do not have the benefit of this information only because insufficient resources exist for the production of these very valuable reports.

[40] As Justice Boswell stated in R. v Lewis, supra, in considering the appropriate sentence a judge can and he did “take judicial notice of the fact that Black Canadians have experienced and continue to experience discrimination across a broad range of social institutions”. This includes the criminal justice system. Black Canadians are subject to persistent and harmful stereotypes.

[41] In order to use this evidence to “mitigate the moral responsibility of an offender there must 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” (see R. v. Lewis, supra at para 32 and R. v. Morris, supra, at para 97). The court is not permitted to grant a discount based on an offender’s colour. It is difficult to fully understand the casual connection between the offender’s background and his present criminality without Morris reports. It is these reports that help judges understand the full impact of past discrimination and marginalization on the offender’s actions. To that end, failing to fund this kind of report writing adequately is a systemic failure.

[42] While I do not have the benefit of a social context report, I do have information about specific incidents in Mr. King-Joseph’s life and his family’s opinion about the impact of these events such that it can properly be used to mitigate Mr. King-Joseph’s moral culpability in this case. I can also apply common sense in assessing the impact particular events in Mr. King-Joseph’s life had on his decision to engage in the criminal offences before the court. It was clear to me from the material provided that it was very difficult for Mr. King-Jospeh to attend a school as one of only three black students. I accept that his exposure to racism was made more difficult by the fact that he was raised in a largely white community. As a result he did not have a community to discuss the discrimination he faced and help him navigate the strain and trauma from his exposure to racism. Adding in the loss of his basketball, the one place where he fit in, an understanding develops about how Mr. King-Joseph started to abuse drugs and make poor, criminal choices around selling drugs and possessing firearms. It would have been helpful to me, and likely to Mr. King-Joseph to have this explored in more detail through a social history report. Sadly, systemic underfunding of these reports led to Mr. King-Jospeh choosing to proceed without the benefit of it.

[43] When I look at this case as a whole, I am satisfied there is a reduced moral culpability in this case that calls for a sentence below the lower end of the range of cases involving the combination of guns and drugs despite the list of aggravating factors in this case.

[44] The paramount objectives of sentencing Mr. King-Joseph must still be deterrence and denunciation. The seriousness of his actions and the prevalence of gun violence associated with drug trafficking demands a sentence that will deter others and denounce Mr. King-Joseph’s conduct. In my view this can be achieved with the sentence I will impose in this case.

[45] I am mindful that sentencing is an individualized process. There may very well be a case where an offender is engaged in drug trafficking while possessing a firearm where a conditional sentence will be deemed to be appropriate. This, however, is not that case. Despite Mr. King-Joseph’s reduced moral culpability, there are too many aggravating factors in this case to support the imposition of a sentence in the reformatory range. But for the mitigating factors highlighted above, a sentence of four years would easily be appropriate. When I consider the social context information and the gains Mr. King-Joseph has made while on release, it is my view that the appropriate sentence in this case is below the usual lower limit of three years.

[46] Mr. King-Joseph is a first offender with a promising future. A jail sentence is going to have a significant impact on his life. In my view a sentence of 32 months, while below the lower end of the usual range, properly reflects the mitigating factors in this case and Mr. King-Joseph’s reduced moral culpability while still sufficiently accounting for the aggravating factors highlighted above. In my view, a sentence of thirty-two months is a meaningful and significant sentence for a youthful first offender, who otherwise led a prosocial life and has strong prospects for rehabilitation. This sentence can address the objectives of deterrence and denunciation without crushing Mr. King-Joseph’s future.

[47] Mr. King-Joseph has been on a release for two years. For the first year of his release, he was on a house arrest bail with an ankle monitor. After Mr. King-Joseph pled guilty, his bail was changed to a curfew. His matter was delayed, however, by almost a full year while Mr. King-Joseph waited for a report that never materialized. He obtained no benefit from this delay while still being subjected to significant liberty restrictions. When I consider the cause of the delay and the clear restrictions of Mr. King-Joseph’s liberty while on release, pursuant to R. v. Downes, [2006] O.J. No. 555 (C.A.), I am reducing Mr. King-Joseph’s sentence by one year to take into account the restriction on his liberty due to strict bail conditions. This leaves 20 months remaining on his sentence.

[48] I appreciate that a one year deduction for Downes credit is significantly more than what is normally granted for two years on bail. This case, however, suffered significant delays due to what I consider to be a systemic issue of underfunding for social history reports. We consistently hear in the Ontario Court of Justice that it will take a year or more to obtain such a report. In my view, in looking at the punitive nature of the bail conditions, the cause of the delay in this case is particularly relevant to the impact of the delay on Mr. King-Joseph.

[49] I am mindful that a 20-month sentence falls into the range of sentence where a conditional sentence order is permitted. However, pursuant to R. v. Fice, 2005 SCC 32, since the sentence I would have imposed but for the Downes credit is more than two years, a conditional sentence is not available. Even if a conditional sentence was permitted in law, I would still not impose a conditional sentence in this case. In my view, given the gravity of the offences for which Mr. King-Joseph was found guilty, a conditional sentence would not meet the objectives of sentencing in this case.

[50] Mr. King-Joseph is therefore sentenced to 20 months on the section 95 offence, twelve months concurrent on the prohibited device offence and nine months concurrent on the possession of cocaine for the purpose of trafficking offence. In addition to serving a 20-month sentence, Mr. King-Joseph will be on probation for eighteen months. The probation terms include reporting as directed, not to possess any weapons, engage in counselling as identified by probation and sign forms to confirm compliance with this term. There will be a 109 order for life and a DNA order as well.

Released June 7, 2024 Justice Mara Greene