Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 08 01 COURT FILE No.: 22-3461

BETWEEN:

HIS MAJESTY THE KING

— AND —

MIEKEL ALLEN

Before: Justice P.T. O’Marra

Heard on: August 4, 2023, and March 15, 2024 Reasons for Judgment on Sentence released on: May 2, 2024 Written Reasons for Sentence released on: August 1, 2024

Counsel: S. Stackhouse, for the Crown S. Jeethan, for the accused Miekel Allen

P.T. O’Marra, J.:

Introduction

[1] On August 4, 2023, Mr. Allen pleaded guilty to possession of a loaded and prohibited firearm contrary to section 95(1) of the Criminal Code of Canada.

Circumstances of the Offence

[2] The circumstances of the offence for which Mr. Allen is to be sentenced are that on March 24, 2022, police were conducting a patrol in the area of Dixie Road and Britannia Road, in the City of Mississauga. At approximately 8:20 p.m., police observed a silver BMW that was travelling below the speed limit with heavily tinted windows. The car was operated by Mr. Allen. The police conducted a traffic stop on Dixie Road. Mr. Allen was the sole occupant of the car. Upon speaking with Mr. Allen, police observed, in plain view, cannabis that was easily accessible. Mr. Allen was arrested pursuant section 12(1) of the Cannabis Control Act.

[3] A subsequent search of the car revealed a loaded firearm within a satchel in the backseat of the car. Upon arrest, Mr. Allen attempted to flee the scene on foot and a struggle with police ensued. Mr. Allen was safely placed in custody and held for a bail hearing.

Pre-Sentence Custody

[4] Mr. Allen spent a total of 87 days in custody prior to his release on bail. Mr. Allen will be credited with 1.5 days for each day of his 87 days of pre-trial detention pursuant to s. 719(3.1) of the Code and R. v. Summers, resulting in Summers credit of 131 days or 4 months and 11 days.

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

[6] The Defence seeks a conditional sentence.

The Impact of a Loaded Handgun on the Community

[7] In R. v. Nur, 2015 SCC 15, at para. 131, the Supreme Court described gun violence as “a matter of grave and growing public concern."

[8] In R. v. Kawal, [2018] O.J. No. 6631, Justice Harris, at para. 11, stated the following: Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it"Gun-related crime poses grave danger to Canadians." R. v. Nur, 2015 SCC 15, per Chief Justice McLachlin, at para. 1, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28. The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

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

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

Circumstances of the Offender

[11] The Defence provided valuable materials on sentencing which included seven character reference letters from family members, and friends. I have reviewed all the letters in support.

[12] Mr. Allen also expressed profound remorse and embarrassment for his actions in his allocution.

[13] Much of the information in this portion of my reasons was obtained from the PSR, the letters of reference and counsel's submissions.

[14] Mr. Allen is 24 years old. He was born and raised in Brampton by his mother. Mr. Allen has six siblings. They were raised in the Church. Currently, Mr. Allen resides with his mother, her husband and five younger siblings in the Niagara Region. His stepfather is the Senior Pastor and leader of the Renewal Church in Buffalo, New York. Currently, his mother is a stay-at-home mother, home schooling children. She is also an Independent Insurance Agent and Financial Advisor for Primerica, working from home.

[15] While growing up, Mr. Allen lived in a rough neighbourhood considered a “Project”. He has lost several friends to gun violence.

[16] His mother wrote that her son was exposed to domestic violence and his father’s drug and alcohol abuse. She is not confident that her son was not impacted by this environment. While growing up she described her son as a “momma’s boy” because he was dependable and reliable. Often, if she were running late due to work, her son would prepare dinner and cook for her once she arrived home.

[17] In 2012, his mother remarried, and the family moved to the Niagara Region in 2015 when Mr. Allen was in Grade 11. It was a difficult move for Mr. Allen as he missed his family and friends in Brampton. He never felt that he fit in. As a result, Mr. Allen was often in conflict over the rules in the home with his parents, which resulted in him getting kicked out of the home when he was 16 years old.

[18] After leaving the family home, Mr. Allen lived in a youth shelter for a semester before moving back to Brampton to live with his grandmother. During this period of his life, Mr. Allen enjoyed school, he had many friends, achieved average grades, and developed good relationships with his teachers.

[19] After completing Grade 12, Mr. Allen went on to work at various jobs. Currently, he is providing remote technical support for Apple. He has also completed his personal training certification. His plans include owning and operating his own gym and personal training business.

[20] Mr. Allen conceded that he has struggled with his alcohol use. He started drinking socially when he was 16 years old. His alcohol consumption increased over time to the point that he was drinking two bottles of wine a day. He would start drinking in the morning. He relied on alcohol to relieve his stress. His alcohol dependency led to a compliance issue while on bail. He left his mother’s residence while under house arrest to purchase alcohol.

[21] Since his arrest and while on bail, Mr. Allen has distanced himself from his negative peer group. Mr. Allen reported that he has not consumed alcohol for several months.

[22] In his interview during the preparation for the PSR, Mr. Allen accepted full responsibility for being in possession of and owning the handgun. He claimed that, leading up to his arrest, he was struggling with depression. His explanation for owning a handgun was due to the influence of his negative peer group, losing friends to gun violence, and fear for his safety and need for protection.

[23] Mr. Allen’s mother is also his surety. She indicated that her son has made positive changes in his life. She described him as “self-motivated and determined but indicated that he lacks confidence in social settings and struggles with anxiety.”

Statutory Framework and Governing Legal Principles

[24] Section 95(1) of the Code states that a person convicted of unauthorized possession of a loaded prohibited weapon is liable, on conviction, to a maximum sentence of imprisonment for 14 years.

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

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

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

[28] The fundamental purpose of sentencing, as described in s. 718"is to contribute... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives", which include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

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

[30] The principles of deterrence and denunciation are key principles for possessing a loaded firearm in public due to the danger the conduct poses to society. Such offenders should, as noted by Justice Doherty in Nur at para. 206, “continue to receive exemplary sentences that will emphasize deterrence and denunciation."

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

[32] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. (See: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92.)

[33] Rehabilitation and restraint are always factors for consideration. These factors are particularly pronounced where a first penitentiary sentence or a high reformatory sentence for a youthful first-time offender is contemplated such as with Mr. Allen. (See: R. v. Brown, 2015 ONCA 361, [2015] O.J. No. 2655 at para. 7.)

[34] Furthermore, the Code mandates that a sentence should be comparable to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[35] Sections 718.2(d) and (e) of the Code address the criminal law principle of restraint. Mr. Allen should not be unduly deprived of liberty if appropriate less restrictive sanctions could achieve the aims of sentence. All reasonable and available sanctions, other than imprisonment, should be considered. (See: R. v. S.K., 2021 ONCA 619, at paras. 12-13; R. v. Desir, 2021 ONCA 486, at para. 41.)

Aggravating and Mitigating Factors

[45] Section 718.2 of the Code recognizes that sentences should be increased or reduced having regard to relevant aggravating or mitigating factors relating to the offence or the offender.

Mitigating Factors

[36] Mr. Allen is youthful. He committed this offence when he was 21 years old.

[37] He does not have a criminal record.

[38] Mr. Allen spent 87 days in pretrial custody and just over two years on a restrictive judicial interim release. I accept that Mr. Allen was subjected to lockdowns and harsh conditions while in detention at Maplehurst.

[39] He pleaded guilty which shows remorse and, as a result, he has saved considerable court resources. In his apology to his family, Mr. Allen did not minimize his offence in any way. He called it an unwise decision and is ashamed of his actions. This insight bodes well for his rehabilitation.

[40] Mr. Allen has achieved his personal trainer’s certification. He works remotely for Apple.

[41] The letters of reference that were provided demonstrate the staunch support he has from his family and friends who only want the best for him. His tremendously supportive family is a positive factor towards achieving his future success.

[42] Mr. Allen has prosocial goals. He wants to open his own gym. He is prepared to engage in counselling for his depression and alcohol abuse. He wants to be there for his mother.

[43] Mr. Allen has had a difficult childhood. He was raised in a high crime neighbourhood. He was exposed to drug and alcohol abuse and domestic violence when he was a child. He lost friends to gun violence which has contributed to an overall fear for his safety. Mr. Allen decided that a firearm was the way to enhance his safety.

[44] Mr. Allen is a racialized male.

[45] In R. v. Morris, 2021 ONCA 680, the Court of Appeal reiterated the seriousness of gun crime and the need for denunciation and deterrence. At para. 99, the Court identified that “social context evidence may offer an explanation for the commission of the offence which mitigates the offender’s personal responsibility and culpability for the offence.”

[46] While Morris gives clear direction to courts on the impact of anti-Black racism in the criminal justice system, it is also instructive on dealing with any social context evidence that explains the commission of the offence.

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

[48] The gravity or seriousness of a crime relates to assessing and weighing the other objectives of sentencing identified in s. 718. The more serious the crime, the greater the need to denounce such unlawful conduct and deter the offender and others. McLachlin, C.J., in Nur, at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95. The gravity of this type of offence still requires the Court to firmly denounce serious gun crimes through the punishment imposed.

[49] The Court in Morris was clear, however, that the gravity or seriousness of an offence was not diminished by evidence which sheds light on why an offender chose to commit those crimes; for example, an offender’s life experiences which include societal disadvantages flowing from systemic anti-Black racism and the criminal justice system. This type of evidence is relevant to an offender’s moral responsibility for his actions but not to the seriousness of the crimes themselves.

[50] Through the proceedings I have learned that, unfortunately, Mr. Allen has had a challenging life. There is some evidence that Mr. Allen armed himself in response to his experiences in the community. The social context evidence provides support for mitigating Mr. Allen’s personal responsibility and culpability. (See: Morris, at paras. 99-100.)

Aggravating Factors

[51] A factor which serves to aggravate Mr. Allen's sentence includes the nature of the firearm. It is a prohibited or restricted handgun.

[52] The firearm was loaded. As noted by the Supreme Court of Canada - "simple" possession of an illegal loaded firearm is a highly concerning and aggravating circumstance on its own. Where a person in the Greater Toronto Area chooses to illegally possess a loaded firearm, such a circumstance is highly aggravating. Period. All illegal firearms-related crimes have a common antecedent - the acquisition and possession of an illegal firearm. The aggravating circumstance inherent in possession of the firearm is addressed by the sentencing approach to this crime.

[53] An illegal firearm is not a utilitarian device like a knife, baseball bat, or golf club. There is no such thing as innocent possession of an illegal firearm. Mr. Allen possessed a loaded prohibited or restricted firearm demonstrating true criminal conduct. This is not a case of regulatory missteps or partially authorized possession.

[54] The loaded firearm was easily accessible to Mr. Allen. It was concealed carelessly and recklessly, having been stowed in his satchel on the rear passenger seat.

[55] It is aggravating that Mr. Allen was transporting in the community a loaded illegal firearm in his car at 8:20 in the evening. In addition to the risk that he chose to assume for himself, he exposed police officers and the public to the same risk.

[56] The violence, injury and loss of life attributed to firearms in our community is appalling. As stated earlier, gun crime has a significant impact on our community.

Analysis: What is the Fit and Appropriate Sentence?

[57] I conclude that deterrence and denunciation are important objectives in sentencing Mr. Allen but, at the same time, they should not outweigh the principle of rehabilitation. In balancing the factors, I must impose the shortest term of imprisonment that is proportionate to Mr. Allen’s crime and his responsibility, given his youthful age. A sentence for a loaded handgun in his car, concealed in a readily accessible satchel, must denounce, deter, and protect the public. Appellate Courts have stressed that public protection can only be achieved through sentences that ensure that potential offenders know that their illegal possession of loaded handguns will be met with serious penal consequences. The Ontario Court of Appeal has made clear that to combat the serious threat firearms pose to the community, such offences must be met with exemplary custodial sentences that proportionally reflect the gravity of the crime and which appropriately stress the need to denounce and deter such crimes.

[58] In my view, a conditional sentence in these circumstances would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code. Not a determinative factor, but a consideration in my assessment, is that Mr. Allen failed to comply with his release order in July 2022, by breaching his house arrest condition.

[59] However, Mr. Allen's youthfulness, and his personal circumstances including his prosocial lifestyle, family support, employment goals, and the social context evidence that reduces his moral culpability, all support the conclusion that rehabilitation of Mr. Allen remains an incredibly crucial factor for consideration.

Conclusion

[60] Taking into consideration the facts and circumstances, the relevant legal principles, the mitigating and aggravating factors, and the appropriate range of sentence, it is my view that the fit and appropriate sentence is a reformatory sentence of 18 months in custody.

[61] This sentence, while below the oft-cited range of three to five years for cases like this, that fall in the true crime range, accounts for the significant mitigating features as demonstrated in the PSR and letters of support presented by Mr. Allen.

Presentence Custody

[62] I accept that Mr. Allen was subjected to harsh conditions of custody while at Maplehurst. He is certainly entitled to credit in that regard. There is a mitigating effect of lockdown credit. Therefore, it is appropriate to adjust the total sentence to reflect the harsh conditions of confinement. I find that the total adjustment to reflect this mitigation should be one month.

[63] Mr. Allen is deserving of Summers credit. Mr. Allen was incarcerated for 87 days. At the rate of 1.5:1 that amounts to 131 days credit or 4 months 11 days, which I will round up to six months. Pursuant to section 719 (3.1) of the Code and R. v. Summers, six months will be deducted from the sentence I impose today.

[64] The 18-month sentence of imprisonment will be reduced by one month for the mitigating effects of harsh presentence conditions and six months for Summers credit. The remaining sentence to be served by Mr. Allen will be eleven months.

Ancillary Orders

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

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

[67] The firearm will be forfeited for destruction.

[68] The victim fine surcharge is waived.

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

Released Orally: May 2, 2024 Written Reasons for Sentence Released: August 1, 2024 Signed: Justice P.T. O’Marra