Court File and Parties

ONTARIO COURT OF JUSTICE DATE: September 20, 2024

BETWEEN:

HIS MAJESTY THE KING

— AND —

DOLAIN MWAMBA

Before: Justice Berg

Released on: September 20, 2024

DECISION ON SENTENCE

Counsel: M. Savage............................................................................................. counsel for the Crown N. Weinstein............................................................................................... for the defendant

Berg J.:

[1] Mr. Mwamba has pleaded guilty before me to the following Criminal Code offences that occurred on March 9 of this year:

• Section. 117.01(3): breach of a s. 109 firearm prohibition;
• Section 244(2): discharge firearm with intent to wound, maim, or disfigure;
• Section 95(2): possession of a loaded restricted firearm.

He also pleaded guilty to a count under the Controlled Drugs and Substances Act arising out of the same event:

• Section 5(3)(a): possession of cocaine for the purpose of trafficking.

[2] The facts, accepted by Mr. Mwamba as part of the process of entering his plea, were presented to the court as an agreed statement of fact. This document was supplemented, on consent, by the playing of two video clips that captured a significant portion of the events of March 9. The statement and videos have been made exhibits. The statement reads as follows:

On March 9, 2024, Dolain Mwamba was bound by two. S. 109 prohibition orders prohibiting him for life from possessing any restricted firearm.

On this date, both Dolain Mwamba and Jenna Fraser attended the Esso/Tim Hortons gas station located at 2545 Baseline Road to obtain fuel. This was in the daytime hours.

At the same time, the victim Granston Watson arrived in his vehicle at the Tim Horton’s side of the gas station to place an order at the drive thru. The accused Mwamba is visible on CCTV footage walking towards Watson’s location in the drive thru while on his phone not paying attention.

Watson, after placing his order, drives forward and comes across Mr. Mwamba walking towards him. Watson began questioning Mwamba and a short verbal argument began. Mwamba quickly produced a handgun from his satchel bag and racked it. Watson, seeing the gun and fearing for his life, quickly drove away. As Watson was driving, Mwamba fired one round at him, striking the driver’s side door before Watson made his escape. Watson was not hit or injured. No spent casing was recovered from the scene, however, Mwamba is visible on the camera returning to the area of the shot, bending over and picking up something small from the ground. An unfired 9mm round was found in the direction of travel of Watson out of the drive thru.

Mwamba is afterward visible on camera returning to the gas pump, having put the gun away, casually getting back into the vehicle with Jenna Fraser who had been pumping gas during this time. Both then left the scene.

Shortly after, police tracked the vehicle driven by Ms. Fraser to her residence at 4 Pathway Private, which was in close proximity to the gas station. Police surrounded the residence and Mr. Mwamba was observed exiting the back door. After a brief interaction, both Mwamba and Fraser were arrested and taken into custody without incident. A search warrant was granted for the residence yielding clothing and a satchel bag worn by Mwamba as seen in the surveillance video. The satchel bag contained a restricted firearm, namely a 9mm Luger PMC handgun, with the serial number scratched off. The firearm was loaded with 1 cartridge in the chamber and 11 cartridges observed in the 17 capacity magazine. Mr. Mwamba possessed this firearm in breach of his two s. 109 prohibition orders.

On a search of Mwamba’s person at the station, police located 13.6 grams of cocaine, a quantity exceeding that intended for personal consumption.

One further point should be mentioned. The accused and Mr. Watson were not known to each other and it has not been suggested to me that their meeting was anything but the crossing of the paths of two strangers.

[3] I have benefitted at this sentencing from the preparation of a pre-sentence report. I wish to note that the report in question is not a so-called Morris- report and, therefore, the Probation Officer did not explore the effects, if any, of racism on Mr. Mwamba. There is thus no evidence before me on that point and I am unable to consider it in my analysis. Mr. Weinstein explained that when his client learned that the preparation of a Morris- report would take many months, and thus delay his ability to access the resources of a penitentiary, he decided to proceed to sentencing without one.

[4] A pre-sentence report was prepared. Mr. Mwamba grew up in difficult circumstances. He was born in the Democratic Republic of the Congo in 1986. He was one of five children in the family. His first memories are from a refugee camp in Kenya where the family had fled during a civil war. His mother was murdered during their escape. After two years in the camp, Mr. Mwamba’s father abandoned his children for reasons that are unclear but may have been related to the father sexually assaulting […]; he has not seen his father since then. If I have understood correctly, the children were then housed with one set of family friends and then another. During that period, Mr. Mwamba’s youngest brother died of malaria. It seems as well that the refugee camp was a violent place.

[5] Mr. Mwamba and some or all of his siblings emigrated to Canada in December of 1998. Initially, his two older sisters were his guardians here. However, after about a year and a half, the Children’s Aid Society intervened and he was eventually placed with a foster family. During this period, he only had contact with one of his siblings. He told the probation officer that he was well-treated by the foster mother, however, they lived in a difficult neighbourhood. It was there that he began to deal in drugs.

[6] He has fathered a total of six children with two women with whom he was in relationships. He has moved around in the Capital Region but seems to have maintained the family unit, living with at least some of the children at any given time. Once again, if I have understood correctly, one of the women and their five children now live in British Columbia. Despite having been active in the lives of his children, he is not in a relationship with that woman due to his infidelity.

[7] Mr. Mwamba completed Grade 7 in Kenya and Grade 11 in Canada. He has worked at various jobs over the years, the two longest being at a restaurant and in sales both for two years. He advised the writer of the PSR that he wishes to work in residential HVAC.

[8] He described developing an alcohol problem in 2020-2023. He described what appears to me to be a form of depression caused by his being a stay-at-home father and not being able to provide for his children. He has accepted that he needs help with this issue. He has also admitted to fairly heavy use of drugs albeit not to the extent of his drinking. He told the writer that at the time of the incident before the Court, he was under the influence of alcohol and MDMA.

[9] During the preparation of the PSR, Mr. Mwamba expressed his remorse unequivocally. I will here quote the PSR:

The subject took accountability for his actions and understood the gravity of his offence by stating “I committed a dangerous offence.” He disclosed that he feels “like a dumbass” because the whole situation could have been avoided and was unnecessary. The subject expressed remorse towards the victim and is “Sorry” for the psychological pain that he may have caused him. He highlighted that he is thankful that the victim did not get hurt.

[10] Mr. Mwamba addressed me after I had made findings of guilt. He had prepared a speech which he then proceeded to read out. I was impressed not only by the sentiments that he expressed but the language he used in doing so. Mr. Mwamba is clearly an intelligent young man with significant potential for rehabilitation.

[11] Mr. Mwamba is not a first-time offender. In 2010, he was sentenced to a total of 210 days of incarceration for single counts of trafficking, possession for the purpose of trafficking, fail to appear, and three counts of fail to comply with a recognizance. He was also placed on 12 months of probation and was bound by a s. 109 prohibition for 10 years. Then in 2012, for a single count of possession for the purpose of trafficking, he was sentenced to 297 days of jail (with 295 days of pre-sentence custody) and bound by a further s. 109 order.

[12] It is agreed by the parties that a custodial sentence is required in the present case. The Crown has submitted that a global sentence of eight years (seven for the discharge of the firearm, with the possession of that weapon and the drug charge concurrent, and a one-year consecutive sentence for the breach of the s. 109 order). Pre-trial custody calculated at an enhanced rate of 1:1.5 would be deducted from that total. As of today’s date, Mr. Mwamba has served 196 actual days. The enhanced quantum is 294 days.

[13] The defence position is the appropriate sentence would be one of five to six years. Mr. Weinstein submits that if I come to the conclusion that it is five years, then the sentence for the breach charge should be concurrent and not consecutive. I note here that s. 244(3)(a)(i) establishes a mandatory minimum sentence for a first offence under s. 244(2) Criminal Code of 5 years (see s. 244(2) (a)(i)).

[14] I will now review the principles of sentencing relevant to this matter. But first of all, and as stated by Wagner J. [as he then was] in R. v. Lacasse, 2015 SCC 64 at paragraph 1, it is important to remember that,

Sentencing remains one of the most delicate stages of the criminal justice process in Canada. Although this task is governed by ss. 718 et seq. of the Criminal Code, and although the objectives set out in those sections guide the courts and are clearly defined, it nonetheless involves, by definition, the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.

This is another way of expressing how difficult the exercise of determining the appropriate sentence can and frequently is. When calculating the quantum of that sentence the Supreme Court has remarked that

[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.

Lacasse, at paragraph 58

[15] Turning now to the relevant principles of sentencing. The overarching purpose of sentencing is stated in s. 718 Criminal Code.

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[16] Clearly, in this case, denunciation and deterrence are foremost. That being said, the Court of Appeal has held that rehabilitation must be considered even where deterrence and denunciation are the primary sentencing objectives (R. v. Disher, 2020 ONCA 710).

[17] The fundamental principle of sentencing is that in s. 718.1: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This is supplemented by s. 718.2 Criminal Code.

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, … (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh;

[18] I will now apply the above facts to the foregoing principles of sentencing. First of all, I find that the following circumstances are aggravating:

• Mr. Mwamba is not a first-time offender. However, his previous convictions are dated and unrelated. There is no prior violence or firearms convictions on his record.
• The gratuitous nature of the shooting. What he did was an unreasonable escalation of an argument or an exchange of insults.

[19] The courts have often remarked about the toxic mix of guns and the illegal drug trade. In the present case, we have both elements: a pistol and drugs held for the purpose of trafficking. However, Mr. Mwamba did not discharge the pistol at Mr. Watson for any reason connected with the drug trade; this illegal possession of drugs had nothing to do with the shooting. Thus, I find that the presence of both a gun and drugs in this case is not an aggravating factor on the discharge of the firearm count. This dual presence would be aggravating on the possession of the firearm and possession of the drugs for the purpose of trafficking counts. However, as those offences arise out of the same event, their sentences will be concurrent to that rendered on the discharge firearm count.

[20] In mitigation, I find the following circumstances:

• The entering of an early guilty plea.
• The stated remorse of Mr. Mwamba
• His pro-social tendencies.
• His lower level of moral blameworthiness due to his background.

[21] It may be useful here to review why a plea of guilt is a mitigating circumstance at a sentencing. The Prince Edward Island Court of Appeal stated the following in R. v. Doucette, 2015 PECA 5 at paragraph 20ff. (see, too R. v. Holder):

There is truth in the old adage that one who pleads not guilty seeks justice while one who pleads guilty seeks mercy. Absent good reason, a guilty plea must be taken into account in mitigation of sentence … There are two schools of thought as to why a guilty plea is a mitigating factor. The first is that a guilty plea is an expression of remorse and an acceptance of responsibility. The more pragmatic rationale is that it saves the justice system the time and expense of a trial.

In my view either or both rationales may be used to justify a reduction in sentence. The amount of credit engendered by a guilty plea however depends on the circumstances of the case. Some courts have held that a guilty plea can justify a discount of up to 25 to 33% … That does not mean, however, that a guilty plea merits such a discount in every case … There may well be cases where there is good reason to grant no reduction for a guilty plea. For example, a guilty plea entered at trial after the Crown has called some or all of its case is a recognition of the inevitable and not an expression of remorse nor does it save any appreciable time and expense. Such a guilty plea would merit little or no reduction in sentence.

Where a reduction in sentence is warranted, it is not simply a matter of a mathematical calculation. There are many factors to consider including, but not limited to, as the strength of the Crown’s case, the nature of the case, the timing of the guilty plea, whether the guilty plea saves a vulnerable victim from testifying, and the circumstances of the offender including his criminal record to mention a few.

Relevant here are the comments of Justice H.F. Pringle in R. v. Berquas, 2018 ONCJ 623 at paragraphs 38 ff.:

Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.

And she concludes, “The difference in quantum should generally be meaningful.”

[22] Beyond the aggravating and mitigating factors, I should also consider the fact that the conditions at the jail where Mr. Mwamba has been detained are difficult. Specifically, the evidence before me is that by September 4, of the 180 days that he had been held at that institution, the area(s) where he was housed were subject to lockdowns on 112 days.

[23] Mr. Savage for the Crown has submitted that the sentence range for a s. 244(2) offence is between seven and eleven years and referred to a line of cases following R. v. Bellissimo, 2009 ONCA 49. In Bellissimo, it is true that the Court of Appeal at paragraph 3 stated “we agree that the range of sentence for these kinds of serious gun related offences is between seven and eleven years.” However, the Court of appeal did not say that sentencing calculations for offences under s. 244(2) must now begin at seven years. The mandatory minimum sentence under this section remains that established by Parliament: 5 years for a first offence. Bellissimo is a case of sentencing after trial, unlike the matter before me, and I take the Court of Appeal to have thus been referring to the appropriate range in that context. As I am here dealing with a sentencing after an early guilty plea, it is still open to me to consider a sentence as low as five years.

[24] Balancing the above aggravating and mitigating factors, I find that the latter are significant enough to warrant a sentence at the mandatory minimum. However, I am of the view that there is no principled reason in this case for the sentence on the breach of the s. 109 weapons prohibition to be concurrent. Mr. Mwamba was bound by two orders of prohibition. He ignored them. Not only did he possess a restricted firearm, he then used it during a fit of anger. We are very far here from what could be considered a low-level breach of s. 109 (assuming that such a thing could be said to exist). The importance of obeying court orders plus the danger inherent in the possession of firearms generally and illegal firearms in particular militate strongly in the present case for the sentence on the breach of the s. 109 order to be consecutive to that rendered on any other count.

[25] In conclusion, the global sentence will be six years or 2,190 days. Broken down, this is:

• Section 244(2): discharge firearm – 1825 days.
• Section 95(2): possession of a loaded restricted firearm – 1095 days concurrent.
• Section 5(3)(a) CDSA: PFTP cocaine. – 730 days concurrent.
• Section. 117.01(3): breach of a s. 109 prohibition – 365 days consecutive.

The total of 2190 will be offset by the presentence custody of 196 days enhanced at 1:1.5 to 294 days. The total remaining to be served by Mr. Mwamba is 1896 days or a bit more than five years.

[26] I will waive the victim fine surcharge as Mr. Mwamba will not be in a position to pay it for the next two or three years at the earliest. There will be a lifetime s. 109 order. As well, I will make an order that a sample of his DNA be taken: primary designated offence(s).

[27] The remaining counts will be marked withdrawn at the request of the Crown.

Released: September 20, 2024 Signed: Justice Berg