ONTARIO COURT OF JUSTICE

DATE: 2024 09 17 COURT FILE No.: West Region: Windsor Courthouse: File #22-81102440

BETWEEN:

HIS MAJESTY THE KING

— AND —

RANSFORD TREVOR HEWITT

Before: Justice Peter C. West

Oral Submissions by Counsel for Sentence: September 17, 2024 Oral Reasons for Sentence: September 17, 2024

Counsel: Ms. A. Harris.................................................................. counsel for the Crown Ms. L. McCurdy.................. counsel for the accused, Ransford Trevor Hewitt

WEST J.

[1] I found Ransford Trevor Hewitt guilty of the following offences after a trial:

Count 1: on July 18, 2022, while occupying a motor vehicle knowing there was in that motor vehicle, a restricted firearm, a handgun, s. 94(1);

Count 2: occupy a motor vehicle knowing there was a prohibited device, replica firearm, contrary to s. 94(1);

Count 5: possess a prohibited firearm, handgun, with readily accessible ammunition that is capable of being discharged in the firearm, contrary to s. 95(1);

Count 7: contravene regulation s. 117(h) of the Firearms Act, s. 86(2);

Count 9: possession of a prohibited firearm, handgun, while not being the holder of a registration certificate permitting such possession, contrary to s. 92(1);

Count 16: occupy motor vehicle knowing there was prohibited device, replica firearm, s. 94(1); and

Counts 11 and 12: two counts of breach of a release order condition, not to possess any weapon as defined by the Criminal Code, s. 145(5).

[2] The Crown requested that I enter a stay respecting Count 9, the s. 92(1) charge, pursuant to the decision in R. v. Kienapple. I have already done this.

[3] I ordered a Pre-Sentence Report and requested counsel provide me in advance with any caselaw respecting the appropriate sentence for possession of a prohibited firearm with readily accessible ammunition capable of being discharged from the firearm and occupying a motor vehicle with a prohibited/restricted firearm, and occupying a motor vehicle with prohibited devices, replica firearms.

[4] I received the Presentence Report (PSR), dated September 5, 2024, which was marked Exhibit 1 on sentence.

[5] I have set out the facts in detail in my written reasons dated June 26, 2024, and do not intend to repeat them here, although I adopt those facts in my determination of a proportionate sentence. Mr. Hewitt had requested his friend, Dwight Ewers, drive him to Windsor from Leamington because he had learned that some young women intended to file a complaint with the police against him. Mr. Hewitt had contacted one of these young women and arranged to meet with her at a complex on Glengarry in Windsor. It was his evidence he was speaking with this woman on his cell phone throughout the drive to Windsor. Mr. Ewers testified he observed Mr. Hewitt with a Roots bag over his shoulder when he entered the passenger seat of the BMW. I accepted Mr. Ewers evidence that he had never seen this Roots bag previously, which was found in the passenger area of the car when the police searched it. This Roots bag contained two replica firearms described in the offences I found Mr. Hewitt guilty of.

[6] The evidence of the police was they received a bulletin as to Mr. Hewitt being wanted respecting charges originating in the Glengarry area. They had information Mr. Hewitt frequented this area and had access to a black BMW and was known to have possession of firearms. On July 18, 2022, around 19:49, they observed a black BMW driving in and out of the Glengarry complex and they followed it. The vehicle’s owner lived in Leamington and the bulletin indicated Mr. Hewitt was connected to Leamington. As a result, the police followed the BMW into the parking area of the Glengarry complex. They parked a couple of rows away from the BMW, exited their unmarked car. The officers were in plain clothes. The two officers approached the BMW from both sides. P.C. Rettig went to the rear passenger side and observed the passenger holding what appeared to be a black handgun beside the right side of his head. He recognized the passenger was Mr. Hewitt, whose photograph was in the bulletin the officers first observed that morning. Both officers had their firearms drawn in the low-ready position. P.C. Hoeksma went to the driver’s side. P.C. Rettig opened the rear passenger door and as he did he yelled, “gun”. P.C. Hoeksma heard him say this.

[7] Mr. Hewitt had his left hand under the bottom of the gun, which was in his right hand and P.C. Rettig believed Mr. Hewitt was seating a magazine into the bottom of the black handgun. P.C. Rettig yelled “Police, don’t move” and as he said this Mr. Hewitt leaned forward as if he was trying to put something under the front passenger’s seat. P.C. Rettig continued making police commands for Mr. Hewitt not to move and P.C. Rettig told him he did not want to have to shoot. P.C. Rettig or Mr. Hewitt opened the front passenger door and the officer ordered Mr. Hewitt to get out of the BMW onto the ground beside the passenger door. Mr. Hewitt complied with the officer’s demands and P.C. Rettig handcuffed him to the rear.

[8] P.C. Hoeksma arrested Mr. Ewers who was in the front driver’s seat. He observed a gun magazine on the front passenger seat. He searched the driver’s area but did not find any firearms. P.C. Gatti (nee Halle) testified she arrived on scene to assist and observed both officers with individuals on the driver’s and passenger’s sides of the BMW on the ground handcuffed. She was told by P.C. Rettig there was a handgun somewhere on the front passenger side floor or under the seat. She searched the front passenger seat area and found a black handgun underneath the front passenger seat. She also found a Roots bag, and she could not recall if the Roots bag was on the passenger seat floor area or on the front passenger seat itself.

[9] I did not accept Mr. Hewitt’s evidence and his explanations for why he was in possession of the black handgun. I found based on the evidence of P.C. Rettig that Mr. Hewitt lied when he said he never had the black handgun in his right hand beside the right side of his face. I did not accept his evidence that Mr. Ewers gave him the black handgun in a sock, which when he received it the gun dropped into his lap. Mr. Ewers was charged as a co-accused of Mr. Hewitt, however, I acquitted him of the charges he faced because I found the Crown had not proved beyond a reasonable doubt that he had knowledge of the loaded firearm observed by police to be in Mr. Hewitt’s right hand when they approached the BMW driven by Mr. Ewers. I also did not accept Mr. Hewitt’s evidence that he had given Mr. Ewers the Roots bag on an earlier date, and he knew when he gave it to Mr. Ewers it had two replica firearms in it. I also did not accept his evidence the Roots bag was on the floor of the passenger front seat area when he entered the BMW. I accepted Mr. Ewers evidence that he had never seen the Roots bag previously, Mr. Hewitt never gave it to him previously, and he first saw the Roots bag over Mr. Hewitt’s shoulder when he got in the BMW.

[10] The magazine was readily available to be inserted into the prohibited firearm, which was a handgun FNS9 compact semi-automatic 9 mm Luger: a prohibited firearm and the magazine contained 9 cartridges of 9 mm Luger caliber ammunition. The handgun was found underneath the front passenger seat and the magazine was observed and seized from the front passenger seat after Mr. Hewitt was removed and handcuffed on the ground. The other two replica firearms were (a) a blank firing replica firearm: a prohibited device, and (b) an Air Soft Replica Firearm: prohibited device, replica firearm. Mr. Hewitt did not have a license to possess firearms and he had not obtained any registration certificate.

[11] Those are the facts briefly stated.

Position of the Parties

[12] The Crown is seeking a three year penitentiary sentence less pre-trial custody, arguing that Mr. Hewitt’s conduct was at the “true crime” level of possession of a prohibited weapon and further that Mr. Hewitt at the time of his possession of this handgun and two replica firearms was prohibited from possessing such items by his release order on charges of dangerous operation of a motor vehicle and uttering death threat. The Crown does not dispute that I should determine what impact Mr. Hewitt’s being on restrictive bail involving house arrest from October 3, 2022, until the present time and leaves it to me to determine what “credit” should be assessed for this mitigating circumstance.

[13] The defence submitted Mr. Hewitt’s possession of the prohibited firearm was not at the “true crime” end of the spectrum because he had not used the handgun in connection with any other criminal conduct. As a result, I should impose a sentence less than the Crown’s position of three years. Further she submitted I should give credit of five or six months respecting Downes considerations in addition to the PTC credit.

Background Character of Ransford Hewitt

[14] Mr. Hewitt is a citizen of Jamaica and is currently 42 years of age. He met his wife in 2017 and they married in 2018. She has four children from another relationship. They are currently separated from each other. The PSR indicates he advised they separated shortly after they were married. He advised since November 2023 he has been in another relationship with Cassidy Pouliot. She is currently pregnant and expecting their first child in February 2025. Ms. Pouliot has two other children (3 and 4) from another relationship.

[15] Mr. Hewitt first came to Canada in 2010 through the Temporary Foreign Worker Program. He would remain in Canada for a period of time, then return to Jamaica until his next work term began. In 2016 he came into conflict with a gang member in Jamaica and his life was threatened. As a result, he went into hiding pending his departure to Canada for his next work term. He fears for his life if he returns to Jamaica and as a result he has applied in January 2020 for refugee status. He claims he did not receive his hearing notices and he missed his refugee hearing. While he says he applied for an appeal, the petition for appeal has been denied.

[16] He lives in his own apartment in Leamington, He is required to report to immigration once per month and has a hearing scheduled to determine his status and whether he can remain in Canada. The probation officer confirmed Mr. Hewitt is subject to a removal order from Canada and currently being processed by Canada Border Services. This has been delayed because of the criminal matters he is facing.

[17] Currently Mr. Hewitt is not working, as he does not have a valid work visa and he is also on house arrest. Presently he receives $733 per month on Ontario Works; although because he received an overpayment this amount has been reduced to $696.35 to repay the overage. He has been in receipt of benefits since October 2022. Mr. Hewitt smokes marijuana and consumes alcohol and spends $60 per month on these substances, which equates to 14 grams of marijuana and a case of beer. Mr. Hewitt in the PSR accepted he had possession of the items and regrets this. He was associating with a negative group of people and came into conflict with the law before he realized their true nature. He is prepared to face the consequences of his actions. He is concerned about how his family will be supported if he is incarcerated. He advised his mother has recently been diagnosed with cancer and he is unable to visit her or offer financial support.

[18] The probation officer spoke with a mental health worker, Milissa Wigfield, who has met with Mr. Hewitt on 3 occasions. He describes having difficulty with symptoms relating to anxiety, depression, loss of sleep and potential hallucinations. Ms. Wigfield noted he is not taking his medication but has checked in with a local clinic to confirm his prescriptions with the intent to resuming taking them. Canadian Mental Health Association will keep his file open and continue to support him through his sentencing and beyond. No psychiatric report was provided indicating what, if any, diagnosis has been made respecting Mr. Hewitt or how long he has been dealing with mental health issues.

[19] Mr. Hewitt advised the probation officer he enjoys working and spending time with his girlfriend and his family and it is very important for him to contribute to his family in Canada and in Jamaica and he is hopeful he will be able to remain in Canada.

[20] Although Mr. Hewitt is on a 12 month probation since January 2024 because of a fail to comply with release order, it is non-reporting probation so there is no history of his compliance with the terms of his order.

Impact on the Community

[21] There is no specific victim affected by Mr. Hewitt’s criminal conduct because he was intercepted by the police prior to his confronting this woman, other than the impact on the community at large of a person having possession of a restricted or prohibited firearm. Numerous sentencing decisions have referred to “illegal handguns” being a scourge and a plague on the community. Justice Goldstein in R. v. Beals, [2015] O.J. No. 2306 (SCJ) at para. 31, has in my view expressed the significant impact on the community perpetrated by offenders who possess illegal firearms:

That said, the mere illegal possession of a dangerous firearm like this one is a true crime in and of itself. Weapons such as these have only one of two purposes: either to kill people, or to intimidate people -- and the reason they are intimidating is because everyone knows about the first purpose. These weapons are extremely dangerous, especially when they are loaded and tossed away in a public place, as this one was. The crime of possessing one of these weapons is not a momentary lapse of judgment. It is not like participating in a bar fight that gets out of hand and causes serious injury. Possession of weapons like these usually requires more thought. We do not know exactly how Mr. Beals came into possession of this weapon, but we do know that he got rid of it in a manner that suggests he knew what he was doing. The courts have a duty to protect the public from these weapons and from the people who casually carry them and take them out in public.

It is important to note that Mr. Hewitt was on his way to the Glengarry complex in Windsor to meet with a woman he believed was about to make a complaint to the police about him. He was in possession of this prohibited firearm, with ammunition readily available, as well as two replica firearms. The evidence in this trial from the officers, P.C. Rettig and P.C. Hoeksma, with the Problem Oriented Policing Unit (POP Unit) both described the Glengarry area in Windsor to be a source of criminal activity, necessitating the need for policing.

[22] In R. v. Kawal, [2018] O.J. No. 6631, at paras. 11 to 13 and para. 16, Justice D.E. Harris in the Ontario Superior Court of Justice made the following observations concerning the proliferation and prevalence of handguns and firearms in the Greater Toronto Area, which I adopt. The facts presented in the Kawal trial are clearly more severe than the facts in Mr. Hewitt’s case; however, Justice Harris’ comments relate to the dangers to members of the community when individuals possess firearms intending to use them in committing criminal offences. It is my view, the number of illegal guns in the Province of Ontario is even greater and more serious six years after Justice Harris’ observations:

[11] Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it"Gun-related crime poses grave danger to Canadians."…The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

[12] Harming a person without a weapon is not necessarily easy. But with a firearm, very little is needed. A slight degree of pressure applied to the trigger, a causal aim, and someone will likely be killed or severely injured. It is all too easy. We have come to the point where no intelligence or much of anything else is needed to kill or wreak grievous harm on another person. Malevolence is all that is required. Unfortunately, this is not always in short supply. That is a daunting prospect.

[13] The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety….Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing…It is even more so now what with record murder numbers in Toronto and the continuing increase of gun crimes and violence…

[16] A person does not stumble upon an illegal handgun. There is a process of purchasing from a trafficker and secreting the handgun to avoid detection and prosecution. There is a high degree of deliberation and contemplation involved. In order to dissuade those who would possess and use firearms, there is a duty to ensure that there is no mistake about the not-give-an-inch opposition and contempt for all that handguns represent. The utilitarian philosophy animating general deterrence is pertinent. The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.

Mitigating and Aggravating Circumstances

[23] In considering what is a proportionate and fit sentence for Ransford Hewitt I must consider the mitigating and aggravating circumstances.

[24] Mr. Hewitt has no criminal record, which is a mitigating circumstance. He is 42 years of age and has a girlfriend, who is pregnant with his child, due in February 2025, and who is supportive of him. He is a Jamaican citizen and originally came to Canada in 2010 as a foreign worker, working under a work visa on a farm in Leamington, Ontario. He would work in Canada for an extended work period and then return to Jamaica until his next work session commenced. His father and siblings are in Jamaica, his mother lives in Antigua. He has not worked since October 2022, and has been collecting Ontario Works since that time. It is unclear but Mr. Hewitt appears to have been working under yearly work visas up until he was charged with the offences on which he had a trial and I found him guilty of the charges listed in paragraph 1. In 2020 he filed a refugee claim because of threats made by a Jamaican street gang towards him. He claims he did not receive hearing notices and missed a refugee hearing. He appealed but this was denied.

[25] He described how each occasion he returned to Jamaica he would meet someone new and start a relationship. As a result, he has three children in Jamaica, aged 22, 18 and 11. He was married in 2017 in Canada but separated in 2018. Currently, Tony Carchedi, Inland Enforcement Officer with the Canadian Border Services Agency advised Mr. Hewitt is subject to a removal order from Canada, pending resolution of his outstanding criminal matters.

[26] He has been on a restricted surety release with a term of house arrest since his release on the charges before me October 3, 2022. It appears he was rearrested on at least two sets of new offences since his release. I will deal later in my reasons with this issue as to whether or not his being subject to increasingly restrictive release conditions is a mitigating circumstance – a collateral consequence or whether he is the author of this because of his own actions.

[27] Although Mr. Hewitt elected to have a trial respecting these offences he has admitted and conceded in the PSR he was in possession of the prohibited firearm with readily accessible ammunition available, as well as admitted to being in possession of the two prohibited devices, replica firearms, while occupying a motor vehicle. He advised he began to associate with a negative group of people and this resulted in consequences for his actions. This is a mitigating circumstance to some extent, as it is an indication that Mr. Hewitt may be gaining insight and awareness into his offending criminal conduct respecting the seriousness and dangerousness of his possessing a prohibited firearm with readily accessible ammunition while operating a motor vehicle out in public. He advised he has changed his peer group for the better.

[28] Mr. Hewitt also advised he has a number of health issues – a hole in his heart, bronchitis, and asthma. He has also experienced difficulties with his mental health and has struggled with poor sleep, depression, anxiety and admits he has “been hearing and seeing things.” He advised he has been working with the Canadian Mental Health Association and is now taking his medication, which has resulted in an improvement in his symptoms. This was confirmed by the probation officer. To some extent these circumstances present a mitigating circumstance as part of my determination of a proportionate sentence.

[29] The aggravating circumstances include his being found by police in a motor vehicle in possession of a loaded prohibited firearm, in that, there was a magazine loaded with 9 mm Luger ammunition readily available for use in the FNS9 compact semi-automatic 9 mm Luger, the prohibited firearm he possessed. He was observed by P.C. Rettig holding this firearm in his right hand, beside the right side of his face by the passenger window and he appeared to be attempting to insert the magazine into the bottom of the handgun’s grip with his left hand. The magazine was found on the front passenger seat and the black handgun was located under the passenger seat having been secreted there by Mr. Hewitt after P.C. Rettig opened the rear passenger door and yelled, “Gun” and then advised Mr. Hewitt, “Police don’t move.”

[30] A further aggravating circumstance relates to the fact Mr. Hewitt had this prohibited firearm out in the public in a motor vehicle. The evidence disclosed he attended the Glengarry complex to meet with a woman he understood intended to file what he maintained was a false complaint against him with the police. It is my view this is a very serious aggravating circumstance, as the use and presence of a prohibited firearm intended to be used by Mr. Hewitt to threaten this woman to prevent her from carrying through with filing a police complaint could have resulted in serious and tragic consequences, as this handgun was certainly capable of causing grievous bodily harm or death. It is my view this is an available inference from the evidence and on the whole of the evidence in Mr. Hewitt’s Trial I find it is the only available reasonable inference.

[31] A further aggravating factor is the large number of firearms possessed by individuals in the community and the violence caused by those firearms to individuals involved in criminal activities and to the community as a whole.

[32] Mr. Hewitt possessed the prohibited firearm and two prohibited devices, replica firearms, despite being bound by one release orders requiring him not to possess any weapons.

[33] Finally, Mr. Hewitt did not have a license to possess a prohibited firearm, he had no legitimate reason to possess a firearm or transport it in a motor vehicle.

[34] There can be no doubt that Mr. Hewitt’s’ possession of this prohibited firearm with a loaded magazine readily available demonstrates he was engaged in truly criminal conduct and posed a real danger for deadly consequences, particularly when his possession of this loaded firearm was in public places. The fact he possessed this handgun with ammunition readily available intending to confront this woman respecting her filing a complaint against him with the police in my view increases the seriousness and dangerousness of his possession. In my view the danger described in the cases dealing with persons who carry loaded restricted or prohibited firearms out into the community is that the only purpose for the possession of such an item is to threaten, injure or kill another person(s). This was expressed by Brown J.A., in dissent in R. v. Omar, [2018] ONCA 975, at para. 123, but subsequently adopted by the majority of the Supreme Court of Canada, R. v. Omar, [2019] SCC 32, where he held “the distinctive feature of illegal handguns is that they are used to kill people or threaten them with physical harm.” The very real danger is that innocent members of the community will be injured or killed as a result of such possession. In large metropolitan cities in Ontario, the possession of loaded restricted firearms is becoming far too frequent. In a case from Windsor where the offender was part of a single transaction in selling a .357 calibre magnum handgun to an undercover police officer for $5,000, Regional Senior Justice Thomas observed in R. v. Nkrumah, 2019 ONSC 3270, at p. 2, (SCJ):

The prevalence of firearms in criminal offences in this city is alarming. It is not a phenomenon experienced only in Windsor. The use, particularly of handguns in criminal offences, impacts on the safety of all the community. When the court is confronted by a transaction like this one, it must react meaningfully. The focus of sentencing must be on denunciation and deterrence, most particularly, general deterrence and the overriding goal of protection of the public.

[35] These additional aggravating circumstances demonstrate the paramountcy of the sentencing principles of denunciation and deterrence, particularly general deterrence, as well as protection of the public present in this case. This is an aggravating circumstance to be considered in determining an appropriate, proportionate sentence.

Determining the Appropriate Sentence

[36] In determining an appropriate sentence for Mr. Hewitt, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code, which provides as follows:

718 The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[37] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court of Canada explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

[38] A sentencing judge must also have regard for s. 718.2, which provides: a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)(i) – (vi)); a sentence should be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b); the combined duration of consecutive sentences not be unduly long (718.2(c)); an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)); and all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[39] Although deterrence and denunciation are the most significant sentencing principles in cases involving the possession of a restricted or prohibited firearm contrary to s. 95 of the Criminal Code, those sentencing principles must not exclude consideration of rehabilitation, particularly in the case of a first offender, who will receive a first custodial sentence and in particular, a first penitentiary sentence. In R. v. Borde, 2003 ONCA 4187, [2003] O.J. No. 354 (C.A.), at para. 36, the Ontario Court of Appeal held where a youthful offender is to be sentenced to a first penitentiary sentence it should not be determined solely on the basis of general deterrence and denunciation, rather the sentencing court should proceed on the basis that the shortest possible sentence will achieve the relevant objectives. Mr. Borde had a lengthy youth record, which reflected serious charges and sentences. Although Mr. Hewitt is a first offender, he is not a youthful first offender, given his age of 42, however, this will be a first custodial sentence. (See also R. v. Francis, [2022] ONCA 729; R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 (C.A.), at paras. 32 to 34; R. v. Blanas, 2006 ONCA 2610, [2006] O.J. No. 364 (C.A.), at para. 5; and R. v. Dubinsky, 2005 ONCA 5668, [2005] O.J. No. 862, at para. 1.)

[40] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 92).

[41] Here is a sampling of a number of sentencing decisions I have come across which deal with possession of a prohibited or restricted firearm after the mandatory three year minimum sentence in the Criminal Code was struck down as unconstitutional in R. v. Nur:

a) R. v. Smickle, 2013 ONCA 678, [2013] O.J. No. 5070 (C.A.) additional reasons, 2014 ONCA 49, [2014] O.J. No. 258 (C.A.) The accused was alone in his cousin’s apartment taking a photograph of himself in front of a laptop computer holding a loaded cocked handgun to post on his Facebook page. At the same time this was occurring the police executed a search warrant at the cousin’s apartment, saw the handgun in Mr. Smickle’s hand and arrested him for possession. After a judge alone trial the accused’s evidence was not accepted, and he was convicted. The trial judge struck down the mandatory minimum sentence and imposed a 12 month conditional sentence less 7 months pre-trial credit. The Court of Appeal held the sentence imposed was manifestly unfit and indicated there were a number of findings made by the trial judge not available on the evidence. It was not known how the accused came into possession of the firearm or for how long. There was no evidence what his intent was with the gun and no evidence his possession was solely for the purpose of taking a photograph with his laptop. It was erroneous for the trial judge to characterize his conduct as “adolescent preening” given the accused's age (27) and thereby minimize his moral culpability and the danger his conduct posed to others. The Court of Appeal held it was not for the trial judge to fill, through speculation, the void created by the accused’s perjury. He had a loaded cocked gun in his hand and was engaged in conduct that posed a serious and immediate risk to others (Persons in the other apartments, the police officers executing the search warrant and the accused). According to Justice Doherty, “…a sentence approaching or at the maximum reformatory sentence (two years less a day) would have been appropriate absent a mandatory minimum sentence.”

At the second hearing the question was whether re-incarceration was necessary to adequately address deterrence and denunciation and the Court of Appeal held, “ Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.” The sentence imposed was 2 years less a day with credit for 12 months leaving 12 months less a day, which was stayed. [ Emphasis added ]

b) R. v. Harutyunyan, 2012 ONCA 637, [2012] O.J. No. 4417 (C.A.) The offender was stopped by police while driving. He tried to run away. A loaded handgun fell out of his pants. He was convicted of various offences associated with possession of a loaded handgun, as well as obstruction of justice. The offender had no criminal record and did well while on bail. Benotto J. (as she then was) found that an appropriate sentence was 4 years: R. v. Harutyunyan, 2012 ONSC 58, [2012] O.J. No. 177 (SCJ, Benotto). The Court of Appeal upheld the sentence.

c) R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (C.A.), after trial, the trial judge imposed a 3.5 year sentence where a firearm was possessed while the accused engaged in drug trafficking, the sentence was upheld by C.A., no criminal record and accused had left the loaded firearm in a satchel at his friend’s house while stepping out for lunch.

d) R. v. Beals, [2015] O.J. No. 2306 (SCJ, Goldstein J.). Beals, a 23 year old first offender, threw a loaded .22 semi-automatic into a grassy area after a car crash. The car crash was video-taped by an in-car police camera and Beals was observed throwing an object into the grassy area. Guilty plea. “True crime” end of the spectrum will attract a significant penitentiary sentence for possession of a loaded prohibited weapon. Sentence imposed 3 years.

e) R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (C.A.), affirming 2016 ONSC 94, [2016] O.J. No. 92 (SCJ Goldstein J.). Mansingh was found guilty after a trial, he ran from police and tried to dispose of a loaded handgun. He was a youthful first offender. Sentencing judge found Mansingh engaged in low level drug dealing as an aggravating factor. Sentence imposed 43 months was affirmed by Court of Appeal

f) R. v. Nsiah, [2017] O.J. No. 526 (SCJ, Goldstein J.), Nsiah, age 23, a .22 calibre revolver with ammunition was found nearby in a bedroom closet pursuant to a search warrant, minor record for assault, obstruct justice and breaches of court order, 2.5 year sentence for s. 95(1) offence and 6 months consecutive for the s. 117 offence (breach of weapons’ prohibition order). This was a guilty plea.

g) R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370 (SCJ, Campbell J.). Browne, age 29, hid a .40 calibre semi-automatic firearm with 7 rounds of ammunition in the magazine in his grandmother’s bedroom. She was away on vacation for an extended time. Browne had criminal record for drug trafficking with 6 year gap but was on a weapons’ prohibition. Browne was employed as an asbestos worker, he was victim of sexual assault as a child and suffered from ADHD and depression. Received 3 year sentence for s. 95(1) offence and 6 months consecutive for s. 117 offence (see also R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ, Campbell J.), 9 mm loaded firearm was found in a bedroom dresser, minor record (weapons’ prohibition).

[42] The defence provided the sentencing judge’s decision in R. v. Smickle, which was overturned by the Ontario Court of Appeal decisions cited above. The defence further provided R. v. MacDonald, 2014 SCC 3, where the Supreme Court majority found no Charter breach, overturned the acquittal, and registered a conviction, referring the matter back to the Nova Scotia Court of Appeal for sentencing. The final decision provided was R. v. Nur 2015 SCC 15, which upheld the sentencing judge’s sentence of 40 months.

[43] Some of the cases provided by the Crown included:

R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Nur, age 19, was standing outside a community centre with some other persons. When the police arrived on scene, Nur ran and threw a loaded .22 calibre handgun with an oversized clip under a car. Nur was an exceptional student with no criminal record, he was described as having unlimited academic and athletic skills. A 40 month sentence was held by the majority as an appropriate sentence for offenders at the “true crime” end of the spectrum.

R. v. McKenzie, 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ, Campbell) Handgun and ammunition were found in the accused’s apartment that he shared with his wife and children. The firearm was loaded with seven rounds of ammunition. He was subject to a court order strictly prohibiting him from possessing any firearm. He was subject to strict bail conditions for four years and three months. He was sentenced to three and a half years of imprisonment less credit for one year. The firearm was carelessly stored in a bedroom dresser. He was not a youthful offender but a mature 33 year old.

R. v. Travis, [2019] O.J. No. 4293 (SCJ, Howard) After the trial judge dismissed a Charter application to exclude the loaded prohibited firearm found on the accused by police during the accused’s arrest for domestic assault, in effect a guilty plea. The accused had no criminal record and was 29 years of age. Sentence: 29 month penitentiary sentence.

R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038 (SCJ, Akhtar). Guilty plea to possession of loaded firearm, s. 95(1). Police had information accused had loaded firearm, when attempted to arrest him, violent struggle ensued, police ultimately found loaded .22 calibre firearm with five rounds. Accused was 20 years of age and had no criminal record, although he had outstanding charges of assault, robbery, and aggravated assault. Sentenced to 40 months.

R. v. Dasoko, [2024] O.J. No. 2834 (SCJ, Himel) GP to possession of loaded restricted firearm. Accused posted on internet-based web forum known as “YUBO” with a photo of a black handgun indicating he was going to shoot up his school. The posted image and content was discovered by AI and it was determined the post originated from Canada. Security personnel at YUBO notified Paris Interpol (YUBO is based in France) who contacted authorities in Canada. Ultimately Toronto Police Service were contacted and obtained search warrant for accused home address. ETF and detectives executed the search warrant and accused threw a Glock 30-s handgun which was loaded with 9 rounds of .45 calibre ammunition out of his bedroom window. Accused was 21 years old with no criminal record. He was sentenced to global sentence of three (3) years: 2.5 years for s. 95(1) offence and 6 months consecutive for fail to comply offence, or 1,095 days. He was given credit for 373 days of pre-trial custody for total credit of 560 days, leaving balance of 430 days.

R. v. Mahamet-Zene, 2018 ONSC 1050, [2018] O.J. No. 1003 (SCJ, Akhtar) After trial accused found guilty of s. 95(2) loaded restricted firearm offence and s. 92(1) offence. The accused was 24 with no criminal record. He was in possession of the gun in a public space surrounded by a number of people, gun was loaded with a bullet in the chamber, ready to be fired. He was on restrictive bail, house arrest, for one year before house arrest was removed. 42 month sentence less one month for Downes credit.

R. v. Mesinele, [2023] O.J. No. 229 (OCJ, Felix) The accused was 19 years old with no criminal record. The sentence imposed for possession of a loaded prohibited firearm was 2 years and 10 months or 1030 days less 120 days Downes credit and 54 days pre-trial custody credit for total of 174 days, leaving balance of 856 days.

R. v. Mohiadan, [2021] O.J. No. 936 (C.A.) Accused invited guilty finding after Charter application dismissed. Trial judge erred in imposing sentence above Crown’s sentencing position, without giving the parties an opportunity to make further submissions. Court of Appeal imposed three year sentence less pre-trial custody credit of 54 days and Downes credit of 150 days.

R. v. Riedl, [2023] O.J. No. 1510 (SCJ, Boswell) Accused was relatively young, no criminal record, pleaded guilty. Sentenced to three years for possession of loaded restricted firearm and one year consecutive for possession for purpose of trafficking in cocaine. On stringent bail conditions for 2 ½ years and 48 month sentence reduced to 45 months to account for this mitigating circumstance.

[44] The caselaw provided by both counsel and the other decisions I have made reference to all demonstrates that sentencing is a very individualized process and there is not one size fits all or a uniform sentence for all offenders who commit a particular crime.

[45] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12, explained:

…The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[46] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko 2010 ONCA 452, [2010] O.J. No. 2583, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

[47] In R. v. D.D., 2002 ONCA 44915, [2002] O.J. No. 1061 (C.A.), Moldaver J. (as he then was) said the following, at para. 33: “[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.” (See also R. v. Lacasse, supra, at paras. 57-58, 60-61.)

[48] In fact, since R. v. M. (C.A.), supra, at para. 92, the Supreme Court has made it clear that

It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime…. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction… .. [ Emphasis added ]

[49] Regardless of which cases I am directed to involving the possession of a restricted or prohibited weapon, they all have a consistent theme, regardless of the level of court: “ firearms pose a significant danger to our community to such an extent that exemplary sentences must be imposed which denounce such conduct and deter others from possessing such dangerous weapons,” R. v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (SCJ, Kelly) at para. 32. This principle is well expressed by Trafford J. in R. v. Villella, 2006 ONSC 39324, [2006] O.J. No. 4690 (S.C.J.) at para. 46:

...[T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

[50] The Supreme Court in Nur clearly indicated that circumstances which fall within the “true crime” end of the s. 95 spectrum of offences will still attract exemplary sentences that emphasize deterrence and denunciation and protection of the public, regardless of the constitutionality of the three year mandatory minimum sentence. This position has been maintained by the Ontario Court of Appeal prior to the introduction of the mandatory minimum sentences, see Marshall, supra, at paras. 43-46, and after the mandatory minimum sentence was struck down, R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) and R. Charles, 2013 ONCA 681, [2013] O.J. No. 5115 (C.A.).

[51] All of the courts hearing the circumstances in the Nur case affirmed that conduct at the criminal end of the spectrum will attract exemplary sentences that emphasize deterrence and denunciation.

Sentence Imposed

a) Firearms offences

[52] Mr. Hewitt was entitled to have a trial respecting the charges he faced, and he is not required to accept my findings respecting the evidence, however, he is not entitled to claim the mitigating benefit of a guilty plea and acceptance of responsibility. It is clear from the caselaw; however, lack of remorse is not an aggravating circumstance to consider on sentencing and I do not consider it as such, (see R. v. Giroux (2006), 2006 ONCA 10736, 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 68; R. v. Valentini (1999), 1999 ONCA 1885, 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 80-85). This is obviously not an aggravating circumstance; however, it does distinguish this case from those cases where mitigation exists as a result of the offender accepting responsibility, expressing remorse, and demonstrating insight into the underlying behaviour they have engaged in. As expressed by the Ontario Court of Appeal in R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141, at para. 8:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini 1999 ONCA 1885, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 2004 ONCA 33468, 190 O.A.C. 354 (C.A.), at para. 2.

[53] It would appear that Mr. Hewitt now concedes in the PSR that he was in possession of the loaded prohibited firearm and two replica firearms. It is difficult to know to what extent Mr. Hewitt has awareness or insight into the seriousness and dangerousness of his conduct in possessing a prohibited firearm in a motor vehicle, driving in the community and about to confront someone he understood was planning to file a complaint against him with the police. However, I do take this into account along with the serious aggravating circumstances I identified earlier in my reasons in determining a proportionate sentence.

[54] As I have indicated it is my view the facts of this case were at the upper end of the “true crime” spectrum. A penitentiary sentence is necessary to reflect this and properly address the sentencing principles of deterrence and denunciation. This is a very serious offence as reflected in Nur and the cases I have referred to since that decision. Mr. Hewitt’s moral blameworthiness is high and he possessed a prohibited firearm in his hand with readily accessible ammunition in a magazine. I found he was in the process of inserting this magazine when P.C. Rettig came upon him. It was fortuitous that P.C. Rettig and Hoeksma observed the black BMW as they prevented Mr. Hewitt from meeting with this women he had arranged to meet up with concerning the allegation against him with the police. The serious and tragic consequences that could have occurred had this meeting taken place with Mr. Hewitt possessing a loaded prohibited firearm are easy to visualize.

[55] In my view, taking into account totality and the fact I intend to impose a consecutive sentence for the two breaches of his release order’s condition not to possess weapons as defined by the Criminal Code, the proportionate, fit and appropriate sentence for the s. 95(1) offence is 33 months. All of the other firearms offences will be the same sentence, 33 months, but concurrent to the sentence on the s. 95(1) offence.

b) Breach of Weapons Prohibition

[56] When Mr. Hewitt had possession of the prohibited firearm with readily accessible ammunition, he was under a release order dated April 12, 2022, which contained a condition he was not to possess any weapons as defined by the Criminal Code. In R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (SCJ), at para. 30, Justice Campbell noted that the weight of authority strongly supported, as a general rule, in such circumstances, a consecutive sentence ought to be imposed for the breach of the weapons prohibition. Justice Campbell found in Ellis and in R. v. Campbell, supra, at para. 27, “the intentional violation of an unequivocal court order requires some effective additional sanction, as offenders must understand that court orders governing their conduct must be followed or there will be real consequences for the violation.” Considering the principle of totality, it is my view, Mr. Hewitt ought to be sentenced to an additional three month term of imprisonment for his breach of his release order condition not to possess any weapons. If he had followed this condition he would not have breached his release order by being in possession of a prohibited firearm with readily accessible ammunition as well, he would have received the 33 month sentence I just imposed for that possession of a prohibited firearm. .

Total Sentence Imposed

[57] The total sentence therefore is 36 months or 1095 days less PTC credit and Downes credit.

Credit for Pre-sentence custody

[58] I was advised by the Crown that Mr. Hewitt spent a total of 154 actual days in pre-trial custody for which he should receive, pursuant to s. 719(3) of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 7, 32-35, 68-83., one and a half days of credit for each day served. Counsel and I reviewed the occasions Mr. Hewitt was in custody prior to be released on a surety release order. The first occasion was when he was charged with the firearms offences and fail to comply with release order on July 18, 2022. He was also charged at the same time or shortly after July 18, 2022, with a number of other offences involving sexual assault from July 1, 2022. He was released on a surety bail on a release order involving house arrest on October 3, 2022. He spent 77 days in PTC respecting these first charges. He was on this bail until his surety applied for relief on July 5, 2023. He was arrested on the surety revocation and a new charge of assault on July 12, 2023. He was not released again until September 26, 2023, when he was released on a surety release order with house arrest on GPS. He was in PTC for a further 77 days. This was a total of 154 days in PTC and therefore on a 1.5 to 1 basis he will be credited 231 days to be deducted from the sentence I have indicated I am imposing. This bail was varied on February 23, 2024, after he had been acquitted of the original dangerous driving and utter death threat as well as the charges relating to the allegation of sexual assault. The new release order still had a house arrest condition, but it did not involve GPS any longer.

Applicability of Downes as a Collateral Consequence

[59] Mr. Hewitt has been on a number of surety releases orders that include a term of house arrest, one with GPS and others without GPS. It would appear from the documentation attached to the Information #22-81102440 that Mr. Hewitt’s release orders have been vacated on a number of occasions because of what appears to be new charges or in one instance a surety relief application on July 5, 2023, respecting his October 3, 2022, release order. I know he was arrested on this surety relief as I indicated above, as well as a new charge of assault, and was ultimately released on a new release order.

[60] In any event, it is clear that Mr. Hewitt would be entitled to some credit for the fact he was on restrictive bail conditions, which included house arrest, pursuant to R. v. Downes, 2006 ONCA 3957, [2006] O.J. No. 555 (C.A.). He has been on house arrest for approximately 21 months. The addition of GPS as part of the house arrest was caused by Mr. Hewitt’s surety seeking relief and then a new additional charge of assault. In my view this reduces the mitigation to some extent.

[61] In Downes, Justice Rosenberg held that “time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” (See para. 33). In addition, he noted that:

29 Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code.

36 Thus, a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach. In the end, the amount of credit and the manner in which it is taken into account as a mitigating factor is a matter for the trial judge. That factor must be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence in a given case.

[62] Finally, the Court summarized the guiding considerations when deciding whether to give credit for time spent on bail conditions at paragraph 37:

Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[63] The Crown conceded that I should consider what credit for the time Mr. Hewitt was subject to stringent, restrictive bail conditions should be given. There is no formula for determining the amount of credit to grant an accused in these circumstances. In all of the circumstances it is my view Mr. Hewitt should be given a reduction of four months or 120 days, pursuant to R. v. Downes.

Balance of Sentence Remaining

[64] 1095 days less 231 days + 120 day = 744

Ancillary Orders

[65] It is my view the additional ancillary orders are appropriate in the circumstances of Mr. Hewitt’s case.

[66] First, pursuant to s. 491(1) of the Criminal Code, I order that the prohibited firearm, the magazine, and ammunition that was seized and detained by police and the two prohibited devices, the blank firing starter’s pistol and the Air Soft Replica Firearm, both prohibited devices also seized and detained by police are forfeited to the police to be destroyed.

[67] There will be a s. 109(1)(b) and s. 109(2) of the Criminal Code. I order that Mr. Hewitt be prohibited from the possession of any firearm, cross-bow restricted weapon, ammunition, and explosive substance immediately and will continue for 10 years after his release from custody.

[68] Mr. Hewitt has been found guilty of committing a “secondary designated offence” pursuant to s. 487.051(3) of the Criminal Code. I make an order in Form 5.04, to have samples of bodily substances taken from Mr. Hewitt for purposes of forensic DNA analysis.

Signed: Justice Peter C. West