ONTARIO COURT OF JUSTICE
DATE: 2024 September 6
COURT FILE No.: Toronto, No. 22-70001360-1, 22-70001361-1
BETWEEN:
HIS MAJESTY THE KING
— AND —
JEROME ATKINSON
Sentencing Judgment
Before Justice Brock Jones
Heard on July 5, 2023, July 5, 2024, and August 23, 2024
Reasons for Judgment released on September 6, 2024
Counsel: S. Reid, for the Crown M. Macchia, for J. Atkinson
Jones J.:
Introduction
[1] Jerome Atkinson pleaded guilty to one count of possession of a loaded, restricted firearm (Criminal Code section 95(1)); one count of possession of a schedule I substance (cocaine) for the purpose of trafficking (CDSA section 5(2)); and one count of possession of proceeds of crime over $5000 (Criminal Code section 354(1)). The Crown proceeded by indictment.
[2] Mr. Atkinson committed severe offences that call for a denunciatory sentence. He was engaged in the illegal drug trade and illegally possessed a loaded firearm, endangering the safety of the community. There is no excusing these crimes.
[3] Yet he has endured startling amounts of hardship, mistreatment, and tragedy in his young life. He grew up in an environment most residents of this city would find unimaginable. Despite the tremendous disadvantages he has had to overcome and the mistakes he has admittedly made, he has demonstrated a commitment to his betterment.
[4] Following the conclusion of the sentencing hearing, I reserved my decision. These are my reasons.
Facts In Support of the Guilty Pleas
[5] A detailed agreed statement of facts was filed the day Mr. Atkinson pleaded guilty. I have summarized its contents for this decision.
[6] For several days between January 8th and 25th, 2022, Mr. Atkinson was the subject of a Toronto Police Service (“TPS”) investigation. He was observed operating a 2015 BMW X5 SUV with the Ontario license plate #CLXB 513. The BMW was registered to Ms. Danielle Beckford at 203 – 33 Eastmount Avenue, Toronto.
[7] Ms. Beckford was his girlfriend at the time. She has been the registered tenant of unit 203 since July 1, 2021. Mr. Atkinson had been residing there with her.
[8] On January 26, 2022, TPS officers executed a search warrant at 203 – 33 Eastmount Avenue. Inside the residence, they located Mr. Atkinson and Ms. Beckford. Officers searched the apartment and found the following:
- A bulletproof vest on top of a plastic storage bin next to the dining room table;
- A packaged kilogram of cocaine in a kitchen cupboard;
- Drug packaging materials, an electronic digital scale and a bottle of oxycontin in a separate kitchen cupboard;
- Several bundles of Canadian currency on a wood table in the living room;
- Additional currency in the single bedroom, along with another bottle of oxycontin and a Rolex watch; and
- One round of 9mm ammunition in a jacket in a closet.
[9] Officers next executed a separate search warrant on the 2015 BMW X5 SUV. It was parked in the visitor’s parking lot at the rear of 33 Eastmount Avenue. Under the steering column, officers located a loaded Glock 26 9mm handgun. It contained eight rounds of 9mm ammunition.
[10] The total amount of Canadian currency seized was $216,670.
[11] Mr. Atkinson accepted that he was in possession of the cocaine, the proceeds of crime, and the firearm.
Prior Court Orders
[12] Mr. Atkinson was placed on a release order by a Justice of Peace on December 30th, 2020, in the Ontario Court of Justice for the charge of assault. The accused was bound by a condition prohibiting him from possessing any weapons. This was a case of intimate partner violence, for which he was ultimately found guilty and sentenced.
[13] On October 5, 2015, while a young person, Mr. Atkinson was sentenced for a variety of firearms offences (including possession of a loaded prohibited or restricted firearm). The youth court judge imposed a ten-year weapons prohibition order.
[14] Both orders were in place at the time of these offences.
Background of the Offender
[15] Mr. Atkinson is 27 years old. His parents are Loretta Smith and Jerome Atkinson Sr. He has five sisters, aged 28 to 17. Mr. Atkinson has two sons, aged 8 and 5, with Rhiannon Watson. Mr. Atkinson is currently single.
[16] Mr. Atkinson identifies partially as Métis. He believed his father had a status card, and his sister, Lexi, was also registered with an Indigenous community. However, he could not provide further details about his ancestry when asked by an assigned worker from Aboriginal Legal Services of Toronto (“ALST.”) A Gladue letter was provided to the court.
[17] Mr. Atkinson has not been culturally involved with any Indigenous community as an adult but remembered attending powwows occasionally with his godmother, Doreen, when he was a child.
[18] His sister provided some additional information. She has an Eastern Woodland Métis Nation of Nova Scotia membership card. According to ALST, the Eastern Woodland Métis Nation is not recognized by any government. They do not, traditionally, turn away anyone seeking membership in their organization. There is no requirement to verify any claim of Indigenous ancestry.
[19] Mr. Atkinson’s cousin, Richard, informed ALST they are Afro-Métis, and many of his extended family are Mi’kmaq “mixed with Black or white.” Richard said his grandmother, whose surname was States-Bowles, was Indigenous. There were some associations, in the 1930s, with the Five Miles Plains School.
[20] The Three Miles Plains region in West Hants, Nova Scotia, is the traditional territory of the Mi’kmaq and was later colonized by the French “Acadians” in the late 1600s to mid-1700s and the English in the mid-1700s. The area was also home to African-American settlers. According to ALST, research indicates that Three Miles Plains hosted the Three and Five Mile Plains schools in the early to mid-1900s.
[21] His grandmother, Evelyn, died from drug addiction when he was 13 years old. She and her mother, Florence Atkinson, were residential school survivors. Mr. Atkinson learned as an adult of a significant history of sexual assaults experienced by some of his family members, which he was protected from as a child. His father’s side of the family suffered from alcohol and drug dependencies to a significant degree.
Affidavit of Jerome Atkinson and Other Supporting Material
[22] The defence filed an affidavit from Mr. Atkinson. He has been held in custody at the Toronto South Detention Centre (“TSDC”) and the Sudbury District Jail.
[23] He grew up in a “rough neighbourhood” without a father present in his life. He had poor role models and a negative peer group. He struggled with learning disabilities and mental health issues. He admits he was later seduced by the allure of “fast money and respect,” which drew him into criminal activity.
[24] He dropped out of high school in grade 11. He had his first child, T. [1], when he was 18. T. has an autism spectrum disorder. His children reside with their mother, but he cares for them most weekends.
[25] His mother raised five children and was often overwhelmed. At nine years old, he was diagnosed with depression, and after his mother reached out to a Children’s Aid Society for help, he was admitted to a three-month residential program away from home. It was, unfortunately, a terrible experience, and he made several attempts to run away. A youth cognitive assessment, completed by a psychologist, was completed at this time for the TDSB. It concluded he had a learning disability and needed to develop skills for emotional regulation, social interactions, and self-esteem.
[26] Mr. Atkinson also had a strong relationship with his grandmother, who acted as a parent to him. She was highly invested in his education and took him to weekly hockey practices and games. Tragically, she was slain in a shooting on August 27, 2016, while sitting on the porch of her residence. Her loss had a “tremendous psychological impact” on him, and he has sought psychiatric treatment to process what happened.
[27] As a teen, he sought out his father and sometimes located him in downtown Toronto in an area known for drug users and people with an addiction. If he located him, his father was often passed out from drug use or too delirious even to have a meaningful conversation. This is where he was first exposed to drug use and drug dealing. He felt the need to support his family financially and continued down what he acknowledges now was the wrong path.
[28] His experiences in pre-trial detention have been an “extremely emotional, psychological and physical challenge.” He has experienced both lockdowns and triple bunking. He estimates that between 50 and 60% of his time has been spent on lockdown. During a lockdown, he cannot leave his cell. He has no range time, and all visits with family members are cancelled. He loses his phone call privileges as well. He may be given thirty minutes to choose something as fundamental as a shower.
[29] While at the Sudbury jail, he was subject to triple-bunking every day in a small cell meant for two inmates. He was provided with a thin mattress to sleep on the floor next to the toilet for at least 49 days. He had virtually no privacy; it was cramped and cold and occasionally infested with insects or other vermin.
[30] The TSDC is often faced with a need for hygiene products such as soap, deodorant, and toothbrushes. Generally, when faced with these shortages, inmates take it upon themselves to barter with one another, trading food for them if possible.
[31] While in custody, he has been placed in the more restrictive ranges. On a Tier 1 range, he is only allowed out of his cell for four hours daily. On a Tier 2 range, it is for only six hours per day.
[32] He developed asthma while in custody and now uses puffers to aid with his difficulty breathing. Mr. Atkinson attributed the cause of his asthma to poor ventilation, exposure to mould and undiagnosed bouts of COVID-19. In December 2023, a medical professional at the jail suggested he be moved to a warmer cell as his current cell was so cold it was aggravating his symptoms.
[33] In December 2021, just before his arrest, he underwent surgery for his eyes. There were complications, and the clinic required him to attend for regular corneal imaging at least bi-annually. His vision progressively worsened while in custody. He requested medically prescribed glasses but did not receive them for his first eight months in custody. The symptoms he experienced left him feeling extremely vulnerable and anxious around other inmates in what is indisputably a hostile environment.
[34] He has experienced racism and over-policing in the low-income neighbourhoods where he has resided. The police harassed, chased and searched black youth in his primary community, Rexdale, although this was “more prevalent during the days of carding.”
[35] Mr. Atkinson claims that the “only purpose that I had for possessing a firearm was for the protection and self-preservation of my family”: para. 70.
[36] While in custody, he completed his high school diploma and secured employment in the roofing industry. He hopes to be a father to his children again and start his own roofing company. He also completed rehabilitative programming, including anger management, maintaining healthy relationships, and planning for his future.
[37] Six letters of support were filed for Mr. Atkinson. A letter from his mother, Ms. Loretta Atkinson, described the police brutality and harassment he experienced as a child and how this exacerbated his depression. She estimated he was harassed daily due to his family’s history with the authorities. I cannot do the content of this letter justice in this written decision. I will summarize it by stating that Ms. Atkinson’s love for her son and the feelings of sadness and powerlessness that she experienced witnessing the police officers in her neighbourhood mistreating him had a profound impact on her. Her son was also not given the care and attention he required at school, and his needs were typically ignored.
[38] Ms. Mariah Atkinson, Ms. Lexi Atkinson, and Ms. Tiarra Atkinson, his sisters, explained how their mother struggled with supporting the family and handling their brother’s behavioural issues. They had few opportunities. Mariah described the constant discrimination and false accusations they faced from the police growing up. It had an impact on all the members of her family. She also described visiting their father at the Don Jail and in his unhealthy environment downtown. Despite these difficulties, their brother has shown kindness to those in need, worked in honest employment, and continues to be a source of love and support. They believe in his ability to succeed once released from custody.
[39] Ms. Rhianna Watson wrote about his outstanding qualities as a father and how his incarceration has affected their sons. They benefit from his presence and have acted out without his guidance. Ever since they had their first child together when he was only 18, he has always been there to support her. She acknowledges Mr. Atkinson’s past mistakes but believes he is committed to living a pro-social life once released, and she expects him to be a strong co-parent.
[40] Mr. Jerome Atkinson Sr. wrote a letter explaining his struggles with addiction and his family’s history with this devastating illness. He recalled that his son would seek him out in drug-infested buildings. He regrets that his son, as a child, was exposed to more than any child should have been. He saw “drugs, addicts and sex workers.” He carries a heavy burden of guilt and knows these experiences hurt his son’s mental health and negatively influenced his life’s trajectory.
Position of the Parties
[41] Ms. Reid seeks a global eight-year sentence. She noted that the appropriate range for the single count of possession of a kilogram of cocaine for the purpose of trafficking is five to eight years, based on the existing authorities. Recognizing Mr. Atkinson’s guilty plea and the importance of the sentencing principle of totality, however, she submitted that a three-year sentence for this count is sufficient in addition to a four-year sentence for possessing a loaded, prohibited firearm. A consecutive one-year jail sentence is enough for the possession of proceeds of crime count.
[42] Ms. Reid notes that gun violence remains a persistent and entrenched problem in Toronto. Mr. Atkinson’s actions reflect a high level of moral blameworthiness. The firearm was loaded and ready to fire, easily accessible in a motor vehicle. The quantum of drugs was extensive and far beyond that of a street-level dealer. These crimes cry out for a sentence that emphasizes general deterrence and denunciation. Every firearm is a potentially lethal weapon.
[43] She provided me with many prior authorities in support of her position. I will review many of those later in this judgment. Near the conclusion of her submissions, Ms. Reid very reasonably acknowledged that Mr. Atkinson had taken steps to lead a pro-social life once released from custody, and I should consider that as well.
[44] Ms. Macchia submits a global sentence of five years is sufficient. This is an exceptional case. While the offences are admittedly very serious, Mr. Atkinson’s life experiences dramatically attenuate his moral culpability: see R. v. Morris, 2021 ONCA 680. He has had a difficult life and experienced the adverse effects of systemic racism since he was a child, as detailed in his affidavit and the letters of support from his family members.
[45] She directed me to many prior decisions where sentences for firearms and drug trafficking offences have been imposed that are less than what the Crown seeks. I will not review all of these cases. Some of them are worth highlighting, however.
[46] In R. v. Desmond-Robinson, 2022 ONCA 369, the appellant was convicted of possession of a sawed-off rifle and ammunition for it, which were located in his closet. He was also found guilty of possession of cocaine, although not for trafficking. He was sentenced to 18 months imprisonment after being credited for time served and an additional nine months due to the restrictive bail terms he experienced.
[47] The Court of Appeal amended the sentence to a conditional sentence order (“CSO”) of two years less a day on the firearms charge while apportioning the credit for time served to the drug offences. The appellant was a young, first offender who demonstrated great rehabilitative potential. Between the time of his sentence and the completion of his appeal, while on bail, he had completed vocational training and had a fiancée and young child: see paras. 16-18.
[48] In R. v. Lewis, 2022 ONSC 1260, the offender pleaded guilty to two counts of possession of a loaded, prohibited firearm and possession of cocaine. Police officers executed a search warrant at his residence and located a safe. Inside the safe, there was a .32 calibre revolver classified as a prohibited weapon. It contained two rounds of ammunition. The safe also contained 49.7 grams of cocaine. Approximately $4,000 was recovered in the safe and Mr. Lewis’ wallet. This was indicative of trafficking: see para. 28.
[49] He was 25 years old and had started a successful business while on bail. He did not re-offend. A two-year sentence was held to be appropriate, served as a CSO. It was further reduced after considering various forms of credit: see paras. 37-48.
[50] These cases demonstrate that lesser sentences than what the Crown seeks for firearms offences have been accepted based on the presence of certain mitigating factors. Where the offender is also found guilty of drug trafficking, Ms. Macchia does not dispute that more significant penalties are typically imposed. However, she directed me to some authorities supporting her proposed sentence. One stands out as being particularly informative.
[51] The facts of this case are similar to R v. Phan, 2017 ONSC 3026. Phan pleaded guilty to possession of a loaded prohibited firearm, possession of the firearm knowing the serial number had been altered, and trafficking in cocaine. He was under police surveillance for drug trafficking. He trafficked a kilogram of cocaine to another man. When a police officer located Mr. Phan to arrest him, he engaged in a high-speed pursuit. He drove recklessly through multiple stop signs until he lost control of the vehicle and crashed it on a residential property. A search warrant executed at his home located a loaded .380 calibre semi-automatic handgun with ammunition.
[52] Mr. Phan was 41 years old with a prior criminal record (albeit not for a firearms-related offence.) Justice Kelly imposed a six-year sentence despite the presence of several aggravating factors. Mr. Phan had experienced difficult conditions while in pre-sentence custody, expressed remorse for his actions, had strong family support, and there were triable issues he abandoned, including a possible Jordan application.
[53] Ms. Macchia emphasized that the conditions Mr. Atkinson has faced in custody while awaiting the conclusion of this case have been inexcusable. I should exercise my discretion to award broad and meaningful Duncan credit. In addition to constant lockdowns, her client’s medical needs were sometimes ignored. He has had to sleep on the floor of a crowded cell, and unsurprisingly, his mental health has deteriorated.
[54] Ms. Macchia also asks me to consider the recent decision of R. v. Smith, 2024 ONCJ 396. In that case, as in Mr. Atkinson’s, over a year passed between a finding of guilt and a sentencing date without a Morris report being completed. Justice Greene held that such an excessive delay, which is not the accused's fault, and which requires the court to proceed to sentencing without the benefit of a Morris report, should be considered a mitigating factor at sentencing.
Aggravating and Mitigating Factors
[55] The following factors are present in this case, all of which have been recognized in prior court decisions as aggravating: see, for example, R. v. Gordon-Brown, 2024 ONSC 1300, at para. 39:
- Mr. Atkinson possessed a loaded, prohibited firearm in a motor vehicle parked in a residential neighbourhood;
- He had no lawful basis for possessing this weapon;
- He has a prior criminal record, including a youth entry for firearms-based offences;
- He was bound by two court orders at the time of the offence prohibiting him from possessing a firearm;
- He possessed a significant quantity of cocaine for drug trafficking; and
- He possessed over $200,000 in proceeds of crime, indicative that his involvement in drug trafficking had been ongoing for some time.
[56] There are also several mitigating factors:
- Mr. Atkinson entered a relatively early guilty plea;
- As a result, the Crown withdrew the charges against Ms. Beckford;
- He has expressed remorse for his crimes;
- He has strong family support, in particular from his mother and siblings, and
- His life experiences, including the discrimination and mistreatment he has experienced since he was a child, diminish his moral culpability for these offences.
Sentencing Law
1) General Principles
[57] Criminal Code section 718 identifies the purpose of sentencing as being “to contribute… to respect for the law and maintenance of a just, peaceful and safe society.” A sentencing court’s decision should be guided by the objectives of sentencing, which include denouncing unlawful conduct, general and specific deterrence, and rehabilitation. A sentencing court must blend these objectives, but the proper blending depends on the offence's nature and the offender's background: see R. v. McArthur at paras. 43-44.
[58] In R. v. Suter, 2018 SCC 34, the Supreme Court of Canada explained that proportionality is the fundamental principle of sentencing, as required by Criminal Code section 718.1. A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: para. 4. Sentencing “is a highly individualized process” requiring “a delicate balancing of the various sentencing principles and objectives”: Suter, supra. Individualization requires the sentencing judge to consider all of the relevant facts before the court, including the “status and life experiences” of the offender: R. v. Parranto, 2021 SCC 46 at para. 44.
2) Firearms Offences
[59] General deterrence and denunciation take on paramountcy as sentencing principles in cases involving the unlawful use of firearms: see R. v. Marshall, 2015 ONCA 692, (Ont. C.A.) at para. 49; R. v. Danvers at para. 78. Firearms are inherently dangerous and remain an ongoing concern for the safety of members of this city. Furthermore, all crimes involving firearms represent a real and substantial danger to the public's safety: see R. v. Nur, 2015 SCC 15. Courts have rightly imposed significant penalties on offenders who recklessly carry and use firearms for their illicit ends.
[60] In R. v. Brown, 2010 ONCA 745, the Ontario Court of Appeal held at para. 14:
Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.
[61] Offences involving prohibited firearms that fall at the “true crime” end of the spectrum require exemplary sentences. For the offence of unlawful possession of a loaded prohibited firearm (section 95), courts have regularly imposed sentences of three years or more for a first-time offender: see R. v. Mansingh, 2017 ONCA 68 at paras. 21-24; R. v. Crevier, 2015 ONCA 619, at paras. 128-9; R. v. Elvira, 2018 ONSC 7008, at para. 27. Repeat offenders who violate weapons prohibition orders can sometimes expect sentences as high as eight or nine years: see R. v. Morris, 2023 ONCA 816, at para. 87.
[62] Yet lesser sentences in the reformatory range have also been upheld where mitigating factors exist. In addition to the cases provided by Ms. Macchia, I reviewed the following recent authority from the Superior Court of Justice in Toronto: R. v. Marier, 2023 ONSC 5194; R. v. Hussey-Rodrigues, 2024 ONSC 2671; and R. v. Gill, 2024 ONSC 3194.
3) Firearms and Drugs
[63] The Ontario Court of Appeal has emphasized that the “toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community”: see R. v. Wong, 2012 ONCA 767, at para. 11.
[64] The primary sentencing principles in cases of possession of a schedule I substance for the purpose of trafficking are deterrence and denunciation: see R. v. Johnson, 2020 MBCA 10, at para. 12. These principles take on added weight when a severe crime demonstrates it was well-thought-out and motivated by greed: see R. v. Buffone, 2021 ONCA 825, at para. 51. The quantity of cocaine seized, nearly 1kg, along with over $200,000 in proceeds, speaks to Mr. Atkinson’s deep entrenchment in the drug trade, his degree of responsibility within the trafficking operation, and his high level of moral culpability for sentencing purposes.
[65] In R. v. Lynch, 2022 ONCA 109, the Ontario Court of Appeal held that the range of sentence for mid-level traffickers of cocaine is five to eight years: see para. 14; see also R. v. Maone, 2020 ONCA 461, at paras. 12-13. In R. v. Bryan, 2011 ONCA 273, the Court of Appeal was explicit that the range applies even to an offender with no prior record: see para. 1.
[66] In Lynch, the Court commented on the harm caused by the illegal drug trade at para. 17:
The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence.
4) Prior Youth Record
[67] On October 5, 2015, Mr. Atkinson was found guilty as a young person of various firearms offences, including possession of a prohibited or restricted firearm with ammunition (Criminal Code section 95(1)). He was sentenced to a 10-month custody and supervision order in addition to 135 days of pre-sentence custody. The presiding youth court judge also imposed a ten-year weapons prohibition order under section 51(1) of the Youth Criminal Justice Act (“YCJA”). That weapons prohibition order expires on October 25, 2025.
[68] On April 5, 2019, Mr. Atkinson was convicted as an adult of failing to comply with a recognizance (Criminal Code section 145(3)) and received one day in jail. Due to this subsequent conviction as an adult, which occurred within the access period associated with his youth findings of guilt, those prior youth entries lost the protections of Part VI of the YCJA and are now to be “dealt with as a record of an adult”: see YCJA section 119(9)).
[69] Nevertheless, a significant qualitative difference exists between criminal activity committed by an adult and a young person. Young persons are entitled to a presumption of diminished moral culpability: see YCJA section 3(1)(b) and R. v. D.B., 2008 SCC 25. By virtue of their youth, they exhibit less maturity and a reduced capacity for moral judgment. Ms. Macchia asks me to consider that Mr. Atkinson’s prior finding of guilt must be placed in that context accordingly. He was only 17 years old when he committed the underlying offences, and it should not be viewed as akin to a prior adult conviction for a similar offence.
[70] Yet even with that consideration in mind, the Court of Appeal noted in R. v. Able, 2013 ONCA 385, that a “balance must be struck” when a sentencing court assesses a prior youth finding of guilt when the individual has re-offended as an adult. The opportunities provided to young persons to rehabilitate themselves and enjoy a clean start in life without their youth records hanging over them indefinitely are not without limit, and some “strings must be attached”: see para. 22.
[71] While Mr. Atkinson’s prior youth record, therefore, remains relevant in this proceeding, I agree with Ms. Macchia that I should not equate it to a prior adult conviction. His status as a young person when he committed those offences and the substantial passage of time since that prior finding of guilt occurred (which was seven years at the time the current offences were committed and nearly nine years by the time of this sentencing hearing), militates against placing significant weight on it. [2]
5) Rehabilitation and Restraint
[72] Mr. Atkinson is 27 and was approximately 25 years old at the time of the offences. He is a young man with excellent rehabilitative potential. This must be given meaningful consideration even when the offender has been found guilty of serious firearm or drug-trafficking-related offences: see, for example, R. v. Disher, 2020 ONCA 710, at para. 60; R. v. Morris, 2021 ONCA 680, at para. 166.
[73] The sentence I impose today must also respect the principle of restraint. In R. v. Borde, the Ontario Court of Appeal described the application of this principle as follows at para. 36:
The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.
[74] This principle applies in appropriate cases even when the offences before the court involve firearms: see R. v. Desir, 2021 ONCA 486, at paras. 41-42.
6) Totality Principle
[75] The totality principle requires a sentencing court to ensure that an offender who receives consecutive sentences for multiple offences is not subject to a sentence that exceeds his overall moral culpability. I will follow the methodology recommended by the Ontario Court of Appeal in R. v. Milani, 2021 ONCA 567, at paras. 34-43, by first settling on the appropriate global sentence and then adjusting the amount of jail time per count accordingly.
7) Impact of a Guilty Plea
[76] A guilty plea signifies remorse and a positive first step towards rehabilitation. However, the weight to be assigned to the mitigating effect of a guilty plea varies from case to case: see Lynch, supra at para. 20. The case against Mr. Atkinson was somewhat complex, and there was a triable case on the issue of possession. Furthermore, a well-drafted and highly meritorious Charter application initially challenged the search warrants. During the hearing of that application, and before it was decided, Mr. Atkinson changed his plea to guilty. While this was not the earliest plea imaginable, it was still meaningful and saved considerable court resources. The risk of litigation and the costs associated with a lengthy trial were avoided to the benefit of all parties: see R. v. Truong, 2021 ONSC 5041, at paras. 32-35.
[77] Mr. Atkinson’s plea also resulted in the charges against Ms. Beckford being withdrawn. Exercising her discretion as a Minister of Justice, Ms. Reid decided it was in the public interest to accept the plea from Mr. Atkinson and not proceed with a complicated trial against both accused persons with an uncertain outcome. In my view, this should be commended. Delay applications remain a severe issue in this courthouse, and resolving this case fairly in such a manner operates to the benefit of the administration of justice by ensuring that adequate resources are in place to hear other cases within the Jordan timeframes, which cannot be resolved.
8) Difficult Conditions of Pre-Sentence Custody
[78] Particularly harsh presentence incarceration conditions can be considered a mitigating factor beyond the standard Summers credit: see R. v. Smith, 2023 ONCA 500, at para. 50. However, a sentencing court must examine “not only the conditions of the pre-sentence custody but also the impact of those conditions on the accused.”
[79] The conditions in the Toronto South Detention Centre (“TSDC”) have been well documented in particular and continue to be the source of significant mitigation from judges of both this court and the Superior Court: see, for example, R. v. Dubajic, 2023 ONSC 516, at paras. 50-55; R. v. Shaikh and Tanoli, 2024 ONSC 774, at paras. 73-84. I agree that difficult conditions of imprisonment, including increased use of lockdowns, a lack of regular access to necessities such as showers, and limited access to communications with one’s family, should be considered a significant collateral consequence justifying some mitigation at sentencing: see R. v. Morgan, 2020 ONCA 279, at paras. 8-9; R. v. Reddick, 2020 ONCA 786, at para. 11.
[80] Mr. Atkinson spent as much as half his time in custody in full or partial lockdown. [3] His affidavit describes the particularly difficult conditions his client experienced while in custody and the impact they had on his physical and mental health. Some of the conditions he described are utterly deplorable. Justice Molloy remarked that these notorious conditions at the TSDC are “not humane”: see Shaikh and Tanoli at para. 77. Mr. Atkinson noted that, in his view, he was also subject to inhumane treatment. I agree.
[81] I can add little to the cacophony of judgments that have condemned the treatment of inmates at the TSDC. Today, I observe that whatever transgressions these men have committed, they are our fellow citizens. The vast majority are presumed innocent. Those ultimately found guilty, after having served their sentences, are returned to the community, where we are all better served by their successful rehabilitation and reintegration. When the jail conditions are of such a nature that those goals are made far more difficult to achieve, it is to the detriment of us all.
[82] In R. v. Marshall, 2021 ONCA 344, at para. 52, the Ontario Court of Appeal held that Duncan credit is “not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence”. However, because it is a mitigating factor to be considered, “it cannot justify the imposition of a sentence that is inappropriate.” The Court of Appeal cautioned against the “quantification” of this factor, as such an approach “may skew the calculation of the ultimate sentence”: see para. 53.
[83] Nevertheless, sentencing courts routinely quantify Duncan credit. In Shaikh and Tanoli, Justice Molloy held that a credit of .5 days for every day spent in pre-sentence custody at the TSDC (in addition to Summers credit) was generally appropriate. This quantum of credit has been endorsed by multiple other judges of the Superior Court of Justice as outlined in Justice Molloy’s decision.
[84] Ms. Macchia brought to my attention several authorities where even greater credit was awarded, including several decisions where courts granted 1.5:1 additional credit for every day spent by an offender on lockdown: see R. v. Persaud, 2020 ONSC 188; R. v. J.G., 2021 ONSC 1095; and R. v. Motaz Haj, 2022 ONSC 1457.
[85] Mr. Atkinson completed multiple rehabilitative programs at the TSDC and secured outside employment upon release. Despite harrowing conditions and the limited programming available to inmates while on remand, he has demonstrated his commitment to his rehabilitation. Where an offender has undertaken such impressive steps, that too should be reflected in the final disposition. [4]
[86] Despite these authorities, I decline to quantify the credit that will be applied in this case. I approach this as a mitigating factor, and will weigh it when determining an appropriate sentence, adhering to the Court of Appeal’s caution in Marshall.
9) Morris Considerations
[87] Mr. Atkinson entered his guilty plea on July 5, 2023. Defence counsel requested an adjournment to obtain an Impact of Race and Culture Assessment (aka a Morris report.) The case was adjourned six times while Mr. Atkinson waited for a social worker to be assigned to write the report. At one court appearance nearly a year after he entered a plea, Mr. Atkinson understandably expressed his frustration to me with this process. He wondered when his sentencing hearing would finally be completed. On July 2, 2024, an author for the report still needed to be assigned. As of that date, Mr. Atkinson abandoned his request to obtain the report and a sentencing hearing was set.
[88] In retrospect, permitting such a lengthy period to prepare the report was an error. While I appreciate that many courts have found great value associated with these reports, if they cannot be completed within a reasonable period, sentencing hearings should not be adjourned endlessly while the court awaits confirmation that an author can be assigned. Sentencing hearings should generally be completed within five months of the date of conviction pursuant to Charter section 11(b): see R. v. Charley, 2019 ONCA 726, at para. 3. While Mr. Atkinson was willing to waive his section 11(b) rights to obtain the report, that waiver alone does not justify limitless future adjournments with an unknown timeline for obtaining the report.
[89] Moreover, lengthy delays in the sentencing process are to the detriment of everyone involved in a criminal case. Victims are unable to move on with their lives. The community is also entitled to know how an offender will be sentenced for a crime before an undue amount of time has passed. Most importantly, the offender and his family suffer, too, by being unable to bring a case to a conclusion. Mr. Atkinson should have been placed in a facility appropriate for his sentence many months ago, where he would have had access to the broader range of correctional programming for sentenced offenders than he can obtain in pre-trial detention. These continuous delays thus damage the public’s confidence in the administration of justice and the offender’s rehabilitation.
[90] Unquestionably, sentencing judges should take judicial notice that Black Canadians have and, unfortunately, continue to experience discrimination across a broad range of social institutions. We must always remain vigilant that the sentencing process itself may exacerbate the adverse effects of systemic racism in society while not losing sight of the fundamental requirement to impose a sentence that is “proportionate to the gravity of the offence and the degree of moral responsibility of the offender”: see Criminal Code section 718.1.
[91] But it is vital to remember that a Morris report is simply one means by which the information counsel seeks to rely upon can be presented to the court. Where it is unrealistic to obtain one within a reasonable timeline, [5] counsel can present information about their client’s background, life experiences, and how systemic racism has affected them through various other sources. It is the substance, not the form, of this information that assists the court in arriving at a just sentence: see R. v. Gamble, 2021 SKCA 72, at paras. 52-70 (decided in the context of denying an adjournment for a Gladue report.) Justice B. Green explained how counsel could introduce various forms of evidence instead of a Morris report in R. v. McLarty-Mathieu, 2022 ONCJ 498, at paras. 22-23.
[92] In Morris (2023), Roberts J.A., in her concurring reasons, commented on the importance of Morris reports and their utility in helping a sentencing court understand the connection, if any, between an offender’s moral culpability for his offences and his life experiences: see paras. 78-83. [6] The justice system would be better served if these reports could be made more readily available to those offenders who request them. Indeed, the Court of Appeal in Morris (2021) commented that “[h]opefully, their preparation can be adequately funded and they will become a common feature of sentencing in Ontario in appropriate cases”: see para. 147. Unfortunately, the delay associated with obtaining a report for Mr. Atkinson became unacceptable.
[93] At the same time, this case exemplifies how excellent work by defence counsel can provide the court with a comprehensive record of the accused’s life experiences and how those experiences reflect upon his moral culpability. The affidavit of Mr. Atkinson and the letters of support from his family were invaluable to my understanding of the discrimination he has faced since childhood. I cannot commend Ms. Macchia enough for the quality of the materials presented to the court.
[94] Fundamentally, counsel and sentencing courts must not lose sight of the Court of Appeal’s observation in Morris (2021) that the individualized approach to sentencing described in that case was “nothing new”: see para. 107. While there is value in the kind of information Morris reports can provide, I do not accept that excessive delay associated with obtaining one (which comes at the accused's request) should somehow be transformed into an additional mitigating factor. Morris (2021) did not establish that a specific form of report was required by law.
[95] I also note that the court does not “order” one of these reports in Ontario, and a state employee does not author them. Instead, an accused person with a legal aid certificate may apply to Legal Aid Ontario to have one prepared. Legal Aid Ontario then applies its criteria to determine if funding will be allocated for this purpose. [7] Accused persons without a legal aid certificate may also attempt to obtain one privately. Third-party organizations, such as the Sentencing and Parole Project, prepare the reports. [8] All of this is beyond the direct control of the court.
[96] In Gamble, the Saskatchewan Court of Appeal noted that publicly funded Gladue reports are ordered “only exceptionally” and “[t]his is how it should be”: see para. 50. If a sentencing judge feels that the information provided to the court from a pre-sentence report (“PSR”) and other sources is insufficient, they may direct that the content of the PSR be expanded as a possible means of obtaining this information. However, a publicly funded Gladue report is not appropriate in every case. Similarly, I do not accept that a publicly funded Morris report is required for all cases where the information it might provide would be helpful to the sentencing court. Courts cannot speculate as to what the report might entail either. Each case is unique if the information can be reasonably obtained from other sources – including, but not limited to, the offender's testimony, witnesses who can speak to his life experiences, or the submissions of counsel – that will form an adequate substitute. [9] That is precisely what happened in this case.
[97] I turn now to the merits of the defence position about the impact systemic racism has had on Mr. Atkinson’s moral culpability. In Morris (2021), the Court of Appeal held that “[e]vidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts,” although “not to the seriousness of the crimes”: see para. 76. While there is no need for an accused to draw a direct causal link between his life experiences and the offences, there must be some connection between the fact of systemic racism and “the circumstances or events that are said to explain or mitigate the criminal conduct in issue”: Morris (2021), at para. 42; R. v. S.M., 2023 ONCA 417, at para. 27.
[98] Based on the evidence presented at this hearing, I am satisfied that Mr. Atkinson’s life experiences, including those associated with systemic racism that he endured during his difficult childhood and adolescence, substantially mitigate his criminal culpability for these offences. He, his mother, and his siblings described in detail the struggles he faced with poverty, police harassment, and an educational system that appeared indifferent to his needs and disabilities. He grew up in a high-crime area of the city and was assumed to be associated with criminal activity at a young age simply because of who he was. His father, who admits to his own terrible life decisions, dragged his son into his world of crime and drugs. I accept each of their letters as sincere and accurate histories.
[99] In his affidavit, Mr. Atkinson described how he first became exposed to the illegal drug trade when visiting his father as a child. His family was known for its generations of people with a substance use disorder for notorious criminality. He recalls the police needlessly stopping black youth in his neighbourhood (including himself) at a time when carding was prevalent, which is entirely believable. His mother recalled that these experiences pushed him into depression. He was stopped multiple times some days for no apparent reason. She vividly recalled one incident, when he was just 11, where an officer told him he would grow up to be a crackhead just like his father. I have no difficulty accepting that this would have profoundly impacted his self-esteem. These experiences bear on his moral culpability for the offences before the court today.
[100] Ms. Atkinson felt powerless to protect her child. The repeated encounters bothered her so much that she documented them, hoping she would be better prepared in the future. Perhaps the most disturbing example of their family’s mistreatment was how they were perceived following the death of her mother (Mr. Atkinson’s grandmother) due to gang violence. She recalled that officers interrogated her about her son’s involvement in the shooting despite the fact he was not in Toronto at the time. They told her that he would be the next victim of a shooting. It scarred her and inflamed the trauma she was already processing. Officers then directly accused Mr. Atkinson of being involved in this incident.
[101] I did not hear any other evidence about this tragic event, nor why the police may have viewed Mr. Atkinson as a person of interest. From the perspective of Mr. Atkinson and his mother, I accept that this sort of interaction would have made them feel like they were being mistreated simply due to who they were and solidified Mr. Atkinson’s sense that he would always be seen as nothing more than a criminal in the eyes of the authorities. Given Mr. Atkinson's love for his grandmother, this would have been very hard to process when he was still a teenager.
[102] However, I do not fully accept one aspect of Mr. Atkinson’s affidavit. He stated that he armed himself for protection out of fear for his safety. While there is truth to that claim, given the realities of the neighbourhood he grew up in and his tragic family history with gun violence, he was nevertheless engaged in the drug trade at the time the search warrants were executed. Therefore, one of the reasons he possessed the firearm was his involvement in that dangerous and planned illegal activity. Those were his choices, and he must bear responsibility for them. At the same time, I also accept his expression of regret and remorse and his desire to change.
Conclusion
[103] Mr. Atkinson is still a young man. He can choose a path demonstrating his continued commitment to rehabilitation. Ultimately, he must make positive choices in his life. If he does, he can still have a bright and positive future. Alternatively, if he continues down the dark path of criminality involving drugs and firearms, he will find no tolerance from future courts.
[104] The sentencing ranges I have identified in this judgment are meant to provide guidance but may always be adjusted based on the aggravating or mitigating factors present in any individual case. I agree with Ms. Reid that great weight must be placed on some of the aggravating factors present in this case, including Mr. Atkinson’s violation of prior court orders. Balanced against those considerations, I have chosen to give significant weight to Mr. Atkinson’s reduced moral culpability, guilty pleas and the impact his difficult imprisonment conditions have had on him. I impose a global sentence of 5 years in prison accordingly.
[105] The Crown’s position of eight years might have been entirely appropriate and fit within the upper end of the applicable sentencing range after a trial absent these weighty mitigating factors. As held by the Ontario Court of Appeal in Bains, 2009 ONCA 745, for those inclined to engage in the illegal sale of an addictive drug for financial gain, “the price upon conviction must be steep”: see para. 193. However, given the significant mitigating factors in this case, combined with Mr. Atkinson’s youth and strong family support network, I find a lesser sentence appropriate. I emphasize Justice Rosenberg’s admonition in Borde, which I repeat here: a first penitentiary sentence should be as short as possible.
[106] I am also particularly mindful of Mr. Atkinson’s status as a father. He has young children and is described as a loving and attentive father in Ms. Watson’s letter. One has special needs, and both have exhibited behavioural difficulties while he has been absent from their lives. Incarceration for offences of this nature is inevitable. But it remains a well-recognized collateral consequence of sentencing that the harm caused to the children of those incarcerated should be considered when arriving at an appropriate sentence: see R. v. Kanthasamy, 2021 ONCA 32, at paras. 7-8. Restoring contact with his children will also support his long-term rehabilitation.
[107] In my view, there are more mitigating factors in this case and arguably fewer aggravating factors than in Phan, where Kelly J. imposed a six-year sentence for similar offences.
[108] I apportion the five-year sentence by imposing a two-year sentence on the possession of a loaded, prohibited firearm offence and a three-year sentence on the possession of cocaine for the purpose of trafficking offence, consecutively. The parties agree that Mr. Atkinson has 925 days of PSC to apply to these charges. He will be credited with 1,388 days at 1.5:1 under Criminal Code section 719(3.1), about three years and ten months. The sentence today is, therefore, 1 year and 2 months.
[109] Once this jail sentence is completed, it will be up to Mr. Atkinson to demonstrate that he is sincere when he states he wishes to abandon illegal activity, be a law-abiding citizen and be present in his children’s lives. I have accepted that his life experiences mitigate his moral culpability for these offences. But that mitigation does not extend forever. If he were to re-offend, he should expect severe penalties.
[110] In addition, I impose a two-year probation order that will provide a degree of state supervision over him, promote his rehabilitation, and assist with his long-term reintegration into society. The terms of probation will include the following:
- Report to a probation officer within 48 hours of your release from custody and thereafter as required;
- Reside at an address approved by a probation officer;
- Notify the court or the probation officer in advance of any change of name, employment status or address;
- Abstaining from owning, possessing or carrying any weapons including any firearms or imitation firearms or pellet guns;
- Attend and actively participate in counselling and treatment programs as directed and sign necessary releases for probation to monitor your compliance;
- Make reasonable efforts to seek and maintain employment;
- Provide a copy of your work schedule to your probation officer upon request; and
- For the first 12 months, abide by a curfew of 10pm to 6am, except for any medical emergencies for you or a member of your immediate family, or with the signed, written letter of permission from your probation officer.
[111] I have included the curfew to foster Mr. Atkinson’s rehabilitation and not as a punishment. Keeping him at home at night, with the supervision and support of his family, will help him avoid any possible temptation to engage in illicit activities and re-offend: see R. v. Badyal, 2011 BCCA 211.
[112] There will be a forfeiture and destruction order with respect to the seized firearm and ammunition pursuant to Criminal Code section 491(1). I order forfeiture of the seized funds as proceeds of crime pursuant to Criminal Code section 462.38.
[113] There will be a Criminal Code section 109 order for life.
[114] The Crown sought a DNA order. These are secondary designated offences, and I find it is in the best interests of the administration of justice to impose the orders: Criminal Code section 487.051(3)(b).
[115] The victim fine surcharges are waived as it will cause undue hardship for Mr. Atkinson to pay them. After his release from custody, he will need to focus on providing support for his dependent children.
Released: September 6, 2024 Signed: Justice Brock Jones
[1] I have chosen not to use the children’s full first names out of respect for their present and future privacy interests.
[2] By contrast, only approximately 15 months passed between when the appellant in Able was sentenced as a young person for firearms-based offences (including a section 95(1) offence) and then subsequently re-offended as an adult by possessing a loaded prohibited firearm: see paras. 4-5.
[3] The evidence on this was somewhat mixed, but there was no dispute it was at least 365 days where the correctional records substantiated a lockdown was imposed.
[4] While I heard of three incidents of violence Mr. Atkinson was involved in while at the TSDC and Sudbury jail, it remains unclear to me who was responsible. I am not satisfied that Mr. Atkinson was the aggressor in any of these incidents. Whatever role he played, for two of them Mr. Atkinson was placed in solitary confinement. That is a serious punishment that, improperly applied, can violate the constitutional rights of inmates: see Canadian Civil Liberties Association v. Canada, 2019 ONCA 243.
[5] Delays in obtaining sentencing reports are not a new phenomenon but my experience as a judge in this jurisdiction has taught me that there is an ongoing problem with the timely delivery of Morris reports. It is incumbent on the Sentencing and Parole Project to provide accurate estimates of the amount of time required to produce a report so that a sentencing court can make an informed decision regarding whether an adjournment of the necessary time period is appropriate.
[6] See also the recent decision of King-Joseph, 2024 ONCJ 280, at paras. 39-41.
[7] https://www.legalaid.on.ca/irca
[8] https://sentencingproject.ca/
[9] Defence counsel did not request a standard PSR be prepared for the sentencing hearing of Mr. Atkinson either, and were content to rely upon the other sources of information available to make submissions.
