Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2024 04 05 COURT FILE No.: Brampton 998 23 311 01517
BETWEEN:
HIS MAJESTY THE KING
— AND —
TROY MATTHEWS
Before: Justice G.P. Renwick
Sentencing Submissions Heard on: 05 April 2024 Reasons for Sentence Released on: 05 April 2024
Counsel: T. Sarantis, for the prosecution P. Seymour, for the Offender Troy Matthews
REASONS FOR SENTENCE
RENWICK J.:
INTRODUCTION
[1] This matter began before me on 22 August 2023 as a judicial pre-trial. It was indicated that the matter would be resolving with a guilty plea. The Offender initially faced six counts relating to a long-gun and assorted ammunition and ammunition magazines found during a search warrant executed at his home on 06 February 2023. He pleaded guilty to having the firearm without a license (s. 92 of the Criminal Code) and possession contrary to a prohibition (s. 117.01 of the Criminal Code). The prosecutor proceeded by Indictment. At the conclusion of the sentencing, the other counts are to be withdrawn.
[2] The agreed facts include that the firearm was found in the basement of the home where the Offender lives with his girl friend and their three children (aged 1-8 years). The rifle was hidden from view, behind new pieces of drywall. Nearby was ammunition for the firearm, two over-capacity ammunition magazines (prohibited devices), and ammunition for a handgun.
[3] The prosecution seeks a global sentence of 24 months imprisonment, less credit for time spent in pre-trial custody, and ancillary orders. The Offender sought a global jail sentence of 18 months imprisonment, less credit for pre-trial custody and to account for the racism the Offender has experienced, for a net sentence of 15 months. No real issue is taken with the ancillary Orders (DNA, s. 109, and forfeiture) sought.
PRE-SENTENCE CUSTODY CREDIT CALCULATION
[4] The Offender was arrested on 06 February 2023 and the parties agree that he spent 21 days in pre-trial custody in harsh conditions.
[5] Offender seeks enhanced credit for the time he spent before his release on bail, while triple-bunked (kept in a cell designed for two people with an extra person) or subject to jail lockdowns. The prosecutor did not contest these submissions or the granting of enhanced credit.
[6] Triple-bunking and lockdowns impose an unanticipated hardship on detainees that is expected to be short-term, arising from unusual circumstances. While a prison is locked down, detainees cannot leave their cells for recreation, meals, or showers. Unfortunately, these situations are becoming all too common for those awaiting trials, while presumed innocent. These conditions, which should be rare, are unfortunately becoming the norm.
[7] In R. v. Persad, 2020 ONSC 188, Justice Schreck detailed the extent to which courts have commented on this unfortunate reality. While His Honour’s comments relate to another detention centre (Toronto South Detention Centre - “TDSC”), they remain apposite to this case:
…we have reached the point where the inhumane conditions at the TSDC go beyond being an unfortunate circumstance and can more properly be described as essentially a form of deliberate state misconduct. As such, it becomes relevant not only to the principles of individualization and parity, but also to the communicative function of sentencing and the overarching sentencing goal of contributing to respect for the law.
[8] I am prepared to give the Offender credit for the circumstances that have made his time in pre-trial custody exceptionally difficult.
[9] The Offender also seeks credit on the basis that he is a Black Canadian and he has experienced racism at the hands of the justice system. He makes no complaint about the specific investigation and prosecution, but the submissions included experience being racially profiled, treated harshly as the victim of a shooting, and poor medical treatment when his parole for a prior sentence was revoked after he was a shooting victim.
[10] Our Supreme Court has recognized that proportionality in sentencing can account for various factors personal to the offender:
Courts should consider the effect of a sentence on the particular offender. The principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate (Suter, at para. 48; B. L. Berger"Proportionality and the Experience of Punishment", in D. Cole and J. Roberts, eds., Sentencing in Canada: Essays in Law, Policy, and Practice (2020), 368, at p. 368). For this reason, courts have reduced sentences to reflect the comparatively harsher experience of imprisonment for certain offenders, like offenders in law enforcement, for those suffering disabilities (R. v. Salehi, 2022 BCCA 1, at paras. 66-71; R. v. Nuttall, 2001 ABCA 277, 293 A.R. 364, at paras. 8-9; R. v. A.R. (1994), 92 Man. R. (2d) 183 (C.A.); R. v. Adamo, 2013 MBQB 225, 296 Man. R. (2d) 245, at para. 65; R. v. Wallace (1973), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100), or for those whose experience of prison is harsher due to systemic racism (R. v. A.F. (1997), 101 O.A.C. 146, at para. 17; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 37; R. v. Marfo, 2020 ONSC 5663, at para. 52). [^1]
[11] I am also mindful of the history of anti-Black racism in Canada, throughout the justice system, the over-incarceration of Black Canadians, and the duty to reflect upon the effects of racism upon the offender before the court. [^2]
[12] I will soon return to the appropriate credit to be applied to the ultimate sentence on the basis of these principles. At this point, it will be helpful to consider the circumstances of these offences and those of this particular Offender.
DISCUSSION OF A FIT SENTENCE
Mitigating Factors
[13] The following factors are accepted by the parties as mitigating:
i. The Offender pleaded guilty; ii. The Offender is genuinely remorseful; iii. The Offender was 36 years old when he committed these offences; iv. The Offender has strong family and community support; v. The Offender is a qualified Automotive Service Technician and Forklift Operator with a solid work history; vi. The Offender has been negatively affected by anti-black racism both at large and throughout his contacts with law enforcement and the justice system; and vii. The Offender wants to lead a pro-social life.
Aggravating Factors
[14] The following uncontested factors are aggravating:
i. The Offender has a lengthy criminal record which includes a failure to follow a release order and crimes of violence; ii. The Offender possessed a rifle with appropriate ammunition that was stored in a home with children; iii. The Offender is not licensed to possess a firearm, but nonetheless he possessed this deadly device in the vicinity of ammunition; iv. The illegally possessed firearm was not properly or safely stored as required by s. 7 of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations; SOR/98-209, made under the Firearms Act, (S.C. 1995, c. 39), which prohibits the storage of firearms with ammunition; and v. There is no innocent reason for the Offender’s possession of an illegally possessed firearm with readily accessible ammunition while he is prohibited from possessing firearms (he is not a sport-shooter and this rifle is not the type of long-gun used for hunting or trap shooting).
Neutral Factors
[15] The following are neither aggravating nor mitigating and have not factored into the calculus of an appropriate sentence in this case:
i. There is no suggestion that the Offender had used or fired the firearm; and ii. There were no injuries suffered by the Offender or the police who conducted the investigation.
Circumstances of the Offender
[16] The Offender is not a young man. He has not led an entirely pro-social life.
[17] The Offender is a racialized Canadian of Guyanese heritage. He has maintained stable family relationships and he supports his children and life partner. He has become qualified in two employment fields and has been promoted to manager in the automotive service industry.
[18] The Offender has served a penitentiary sentence for aggravated assault and break and enter in 2010. Since that time, he was the victim of a robbery and he was shot in his hand. This caused him to suffer the harsh reality of a parolee, any involvement with the law is presumed negative. He lost his parole and suffered poor medical treatment while he was returned to custody.
[19] The Offender appears genuinely remorseful about this offence. He is embarrassed. He has put his family and those who depend on him in an untenable position. He acknowledges all of this.
[20] The Offender has a criminal history. He is neither youthful, nor junior in his criminal pursuits. If anything, these offences suggest an unfortunate return to a criminal lifestyle. All of which is contraindicated by his employment history, his family support, his dependents, and his acknowledgement of responsibility.
Circumstances of the Offences
[21] The Offender possessed a deadly weapon without trigger guard or a lock. The firearm was left behind some unused sheets of drywall in the basement of a home with small children and an eight year old. The firearm was found proximate to accessible ammunition in two magazines. The potential for harm was overwhelming. The Offender is fortunate that police recovered the weapon and ammunition before his step-son or someone else. The Offender possessed this rifle knowing that he is prohibited from doing so by reason of an order made for life in 2010.
[22] In submissions, counsel for the Offender suggested that the reason for the possession of the rifle was the Offender’s fears given he was the victim of a shooting about one decade ago. While perhaps understandable, this hardly mitigates the seriousness of this offence.
Sentencing Principles
[23] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[24] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender. [^3]
[25] In R. v. Hamilton and Mason, Doherty J.A. of the Ontario Court of Appeal stated that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime. [^4]
[26] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good. [^5]
[27] Section 718.1 of the Criminal Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [^6]
[28] In the circumstances of this case, both parties submit that a sentence of imprisonment is appropriate, but they differ on the quantum and the forum. The prosecutor seeks the Offender to return to a penitentiary, whereas the Offender seeks a mid-range reformatory sentence. Their dispute is mostly one of duration, which determines the penal venue. Obviously, as a sentencing tool, institutional imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the offender.
[29] Our Supreme Court has instructed that section 718 of the Criminal Code requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. [^7]
[30] Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence), it is still a factor I must consider, especially in light of the Offender’s potential, his family support, and his remorse.
Sentencing Range
[31] The parties rely on their experience rather than jurisprudence to justify the sentence proposed. I find that the sentence sought is at the low end of the appropriate range for this level of threat to public safety.
[32] Though this is characterized as an error in judgment, that understates the effort it took to obtain the firearm and ammunition, to hide it, and to continue to possess it, perhaps for years.
[33] However, the risks and the gravity of the offence cannot be over-emphasized to the exclusion of the obvious remorse, the changed life-circumstances of the Offender, his willingness to better himself after his return from the penitentiary, his otherwise good character, stable life, and the significant family support he enjoys. This Offender can be rehabilitated. He has done that before. He has already begun that.
[34] When I consider the totality of circumstances, I am satisfied that the appropriate sentence is as follows:
i. For the firearm possession, 18 months imprisonment; and ii. For the breach of a prohibition Order, 3 months imprisonment, to be served consecutively. [^8]
[35] In recognition of the principles of restraint and totality, I would reduce the sentence by two months.
[36] When I take into account the pre-trial custody, and a reduction in recognition that imprisonment is more harshly experienced by victims of racism, another five months credit is to be applied.
[37] This sentence is a lenient one, but it responds to the need to deter this Offender and others from serious criminal activity. It accounts for the significant mitigating circumstances of a guilty plea where there were triable issues, including a possible challenge to a search warrant.
[38] Given that the ancillary orders were unopposed, I am satisfied that it is appropriate to order the following:
i. An Order pursuant to s.109(2) of the Criminal Code prohibiting the Offender from possessing any firearm or ammunition for a period of 20 years and for a period of life for any prohibited or restricted firearm, or ammunition, or prohibited weapon or device; and ii. An Order pursuant to s. 487.051(3)(b) of the Criminal Code (s. 92 is an offence for which the maximum punishment is more than five years, making this a secondary designated offence) for the taking of a sample of the Offender’s DNA in circumstances that are hygienic and respectful of his privacy and bodily integrity, by a person qualified to take such samples. The Order need not be carried out if the Offender’s DNA is already known on the national databank.
[39] I will also sign a forfeiture Order provided by the parties for the destruction of all firearm-related items seized by the Peel Regional Police on or about 06 February 2023.
CONCLUSION
[40] The Offender has been found guilty of possessing a rifle without authorization and contrary to a weapon prohibition. His global sentence is 21 months imprisonment less credit for the equivalent of 7 months for pre-trial custody and in recognition of the effects of racism upon him. He will serve a further 14 months in a provincial reformatory. There will be a DNA Order made, which can be carried out while he is in custody. I will impose another lifetime weapons prohibition pursuant to s. 109 of the Criminal Code, and a forfeiture Order is granted in respect of the rifle, magazines, and all ammunition seized by police on 06 February 2023.
[41] The Offender has a good brain, a strong will, and an able body. He is well-loved. Unlike many people I see, he can do better and move beyond the entries on his criminal record to set a better example for his children and his family. I wish Troy Matthews every success in his rehabilitation, for his sake and that of our community.
Released: 05 April 2024 Justice G. Paul Renwick