ONTARIO COURT OF JUSTICE
DATE: 2024 01 17 Toronto
BETWEEN:
HIS MAJESTY THE KING
— AND —
RAPHAEL SOSA
Before: Justice Newton-Smith
Heard on: June 23 and December 5, 2023 Reasons for Sentence released on: January 17, 2024
Counsel: J Damaskinos, for the Crown T Smith, for the accused Raphael Sosa
Reasons for Sentence
NEWTON-SMITH J.:
[1] Mr. Sosa plead guilty to trafficking in cocaine, possession of proceeds and possession of a loaded firearm.
The Facts
[2] On September 30, 2022 an undercover police officer contacted Mr. Sosa by telephone and arranged to purchase $300 of cocaine from him. They met at a MacDonald’s in Toronto and Mr. Sosa gave the undercover officer 2.87 grams of cocaine in exchange for $300. Those are the facts with respect to the charges of trafficking in cocaine and possession of proceeds to which Mr. Sosa plead guilty.
[3] On October 19, 2022 the undercover officer again contacted Mr. Sosa and made arrangements to purchase $300 of cocaine. They met at the MacDonald’s. At this time Mr. Sosa was arrested. When he was searched incident to arrest Mr. Sosa was found to be carrying a loaded .45 calibre handgun. Those are the facts with respect to the charge of possession of a loaded restricted firearm.
[4] This matter has been on the resolution track from the outset and trial dates were never set.
Circumstances of the Offence and the Offender
[5] Mr. Sosa comes before the court as a youthful first offender. He has no criminal record. He turned 18 on September 3, 2022, some weeks before committing the offences before the court. Had these offences occurred as little as 6 weeks earlier he would have been charged as a young person and the proceedings governed by the Youth Criminal Justice Act.
[6] The charges to which Mr. Sosa has plead guilty are serious. Substance use disorder and the plethora of social problems that come with it are serious problems in our society. Drug trafficking fuels those social ills and creates a culture of violence and lawlessness. Gun violence follows. Possession of firearms, and particularly loaded firearms, is a very serious problem in our society and particularly in the City of Toronto. The combination of these two offences, drug trafficking and possession of a loaded firearm, is all the more serious.
[7] It is the combination of these two offences, trafficking in cocaine and possession of a loaded firearm, that is the most aggravating factor here. That being said, and as the Crown pointed out in his submissions, there is otherwise essentially an absence of aggravating factors here.
[8] Mr. Sosa has recently turned 19 years old. At the time of the commission of these offences he had just turned 18. He is the most youthful of offenders that appear in adult court.
[9] These offences occurred in the fall of 2022 as the covid pandemic was waning. Mr. Sosa was a high school student at the height of the pandemic. Like everyone he lived through a very difficult time. What was particularly difficult for Mr. Sosa and others like him is that, as a teenager in high school, he was at a very formative time in life. A time when young people begin to develop the tools and maturation to succeed as adults. Unfortunately, his high school years were marked by lockdowns, remote learning and a lack of social interaction. The mental health crises faced by so many young people during and after the pandemic has been the subject of much discussion and concern in our society. It is a sad and difficult reality whose impact will be felt for years to come.
[10] I do not mean to suggest in any way that the measures taken to protect society during the covid pandemic were misplaced, unnecessary or avoidable. I mean only to point out the reality of what was occurring during Mr. Sosa’s most formative years and in the time preceding these offences.
[11] Mr. Sosa’s mother is from the Philippines and his father from El Salvador. His parents are hard working immigrants for whom English is a second language. They have three sons who were all born here in Canada, Mr. Sosa being the youngest.
[12] While Mr. Sosa was growing up the family lived in the Keele and Finch area of Toronto. Mr. Sosa was a very talented soccer player as a child and young adult but eventually had to stop playing when it became too expensive for his family. He went to high school at CW Jeffries, a school which unfortunately became notorious after a student was shot to death at the school.
[13] Mr. Sosa struggled academically in school. His parents, as immigrants who themselves struggled with English, were disadvantaged in their ability to help their son and to advocate for him at school. His mother reports that on line learning was particularly difficult for her son who needs hands on learning and the assistance of a teacher in the classroom. It is likely that Mr. Sosa suffers from an undiagnosed learning disability.
[14] In 2021 Mr. Sosa was the victim of an act of serious violence. While at the Scarborough Town Centre with friends from his church Mr. Sosa was followed and attacked. He was pistol whipped and shot in the head and thumb with a BB gun. Mr. Sosa was hospitalised for a week as a result. His parents report that since this incident Mr. Sosa became more reserved and less communicative with them and fell in with a negative peer group.
[15] In the summer of 2022 Mr. Sosa’s family was able to purchase a home in Windsor, Ontario. Mr. Sosa’s mother and brothers moved to Windsor. Mr. Sosa remained in Toronto with his father to complete high school. At the time of these offences he was living in Toronto with his father who works full time while his mother was living in Windsor.
[16] Following his arrest on October 19, 2022 he spent three days in custody before being released on a strict bail. He went to Windsor to live with his mother who was his surety. He has abided by the conditions of his bail without incident, including a curfew, since his release some 15 months ago.
[17] In the year following his arrest Mr. Sosa completed high school at an adult learning centre in Windsor. A supportive letter from one of his teachers in Windsor has been filed with the Court. Mr. Sosa achieved a grade of 80% in her class and was noted to have been helpful with the other students.
[18] Mr. Sosa’s family is very supportive and committed to helping Raphael mature into a pro-social and productive adult. Letters from numerous family members were filed with the court.
[19] Mr. Sosa is now working with his brother Miguel as a mover. In a letter to the court Miguel writes that Mr. Sosa is respectful, hardworking and always polite with the customers. Miguel further writes of his brother, “I believe his mindset in his life is transforming more as the days go by”.
[20] Once these charges have been dealt with Mr. Sosa plans to attend Humber college to study business and hopes to follow his other brother, Gabriel, into the plumbing trade. In a letter to the court Gabriel writes of being re-united with his brother from whom he had grown distant. Of his brother’s current state, Gabriel writes that Raphael has, “embraced adversity as an opportunity for growth”.
[21] Having left behind the negative peer group he fell into in Toronto Mr. Sosa is now deeply committed to his family church where his aunt is a Pastor. His aunt writes, “As to Raphael, I believe, he needs to grow more on knowledge how to cope with struggles of young people nowadays. That age where young people easily get influenced by those who threatened them and lead them to a wrong path. I believe my nephew will become mature spiritually (faith) and mentally (knowing his priorities and in decision-making) if given a chance to grow in the right environment”.
[22] Mr. Sosa’s father writes of the struggles he and his wife had as immigrants trying to navigate raising a teenager who was falling under the influence of negative peers. He writes thoughtfully about the respect his family holds for the judicial system, the importance of bringing home the severity of his son’s actions to him while asking that his son not be “sent to the wolves’ den”.
Position of the Parties
[23] The Crown acknowledges the great strides that Mr. Sosa has taken but submits that the seriousness of the charges requires a sentence of 2.5 years.
[24] The defence acknowledges the seriousness of the offences but submits that Mr. Sosa’s youth and the steps that he has taken towards rehabilitation are exceptional, and that in the circumstances a conditional sentence is the appropriate sentence.
Sentencing for Trafficking and Firearms Offences
[25] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A fit sentence is one which balances the sometimes conflicting sentencing principles of denunciation, deterrence, rehabilitation and restraint.
[26] Trafficking in cocaine is a serious offence as is possession of a loaded firearm, if not more. The sentencing objectives of denunciation and deterrence take on increased significance with the increased gravity of the offence.
[27] The degree of responsibility of the offender requires consideration not only of the immediate circumstances of the offender but also of the offender’s background, life experiences and personal characteristics: R. v. Morris, 2021 ONCA 680 at para. 88.
[28] Sentencing ranges are important sentencing tools that provide guidance. It is only fair that similar offenders receive similar sentences for similar offences. However, sentencing is an individualised process and ranges are to be treated as non-binding guidelines, not straightjackets: R. v. Lacasse, 2015 SCC 64, at paras. 53-60, R. v. Parranto, 2021 SCC 46. The overriding principle which governs a fit sentence is always proportionality.
[29] Where the use and possession of a gun is associated with criminal activity such as drug trafficking there is an established sentence range of three to five years: R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Marshall, 2014 ONCA 692, at paras. 47-48, R. v. Nur, 2015 SCC 15, at para. 82.
[30] This is not to say, however, that a sentence of less than three years can never be appropriate where an offender is convicted of possession of a firearm in conjunction with drug trafficking. As the Court of Appeal recently pronounced in R. v. Desmond-Robinson, 2022 ONCA 369 at para 13, conditional sentences may sometimes be appropriate even in such cases.
[31] Where a sentence of 2 years or less is appropriate consideration must be given to the imposition of a conditional sentence: Morris, at para. 180.
[32] A conditional sentence may be imposed where it will not endanger the safety of the community and it is consistent with the fundamental purposes and principles of sentencing: section 742.1(a) of the Criminal Code.
[33] While denunciation and deterrence are clearly important sentencing objectives when it comes to the combination of drug trafficking and possession of a firearm, the fact that Mr. Sosa was just barely an adult at the time of the commission of the offences pulls the sentencing objective of rehabilitation closer to the forefront. As stated by Dubin J.A. in R. v. Demeter, (1976) 32 C.C.C. (2d) 380, at p. 381:
In my opinion, the paramount consideration in determining an appropriate sentence in this case is the extreme youth of these appellants. In such a case the principles of general deterrence must be set into the proper context…If deterrence has a part to play in dealing with the very young, the type of sentence to be imposed must be directed at that group. Obviously, such a sentence would not deter a hardened criminal…In considering what an appropriate sentence is for the very young, the paramount consideration must be their immediate rehabilitation.
[34] The imposition of a conditional sentence for an offender who has been found guilty of possession of a firearm in conjunction with drug trafficking, while exceptional, is not without precedent. The Court of Appeal imposed a conditional sentence of two years less a day in Desmond-Robinson and more recently in R. v. Ramos, 2023 ONSC 1094 and R. v. Collins, 2023 ONSC 5768, conditional sentences were imposed in such situations.
The Appropriate Sentence for Mr. Sosa
[35] Mr. Sosa has taken great strides towards maturity in the past year. He has graduated from high school, situated himself in a productive and healthy environment and joined the workforce. He has laudable and realistic goals and has embraced the significant support of his family and church.
[36] Sentencing Mr. Sosa to a period of incarceration to be served in a penitentiary, or even a reformatory, will undoubtably derail his progress.
[37] Mr. Sosa’s “extreme youth” at the time of the commission of these offences is an exceptional circumstance which brings the objective of rehabilitation to the forefront where it may otherwise take a back seat to general deterrence and denunciation.
[38] Sending someone of Mr. Sosa’s youth and vulnerabilities, with no criminal record, to the penitentiary would be detrimental to the great progress he has made and to his rehabilitation generally.
[39] It is Mr. Sosa’s extreme youth which makes a sentence in the range of two years appropriate for offences which generally sit within the three to five year range. As such I may, and indeed must, consider the imposition of a conditional sentence.
[40] Given Mr. Sosa’s lack of criminal record and current circumstances I do not find that the imposition of a conditional sentence would endanger the community. I also find that a conditional sentence would be consistent with the purposes and principles of sentencing as they apply in the circumstances of this offence to someone of Mr. Sosa’s youth and circumstances.
[41] I sentence Mr. Sosa as follows:
A conditional sentence of imprisonment to be served in the community of two years less a day on each count, to be served concurrently;
Followed by a two year term of probation on each count, to be served concurrently.
[42] I also impose the following ancillary orders:
An order to provide a DNA sample, pursuant to s.487.051(3) of the Criminal Code;
A weapons prohibition order, pursuant to s.109(1)(b) of the Criminal Code for life;
An order of forfeiture of the firearm seized, pursuant to s.491(1) of the Criminal Code.
[43] I will address the specific conditions of both the conditional sentence and the probation order with counsel. Two thirds of the conditional sentence order will be served under a house arrest condition and the remaining third under a curfew.
Released: January 17, 2024 Signed: Justice Newton-Smith