Ontario Court of Justice
Between:
His Majesty the King
— and —
Noah Spencer
Before Justice Peter Scrutton
Reasons for Judgment released on March 4, 2025
Matthew Bloch ........................................................................................................... for the Crown
Charlena Claxton .................................................................................................... for the Accused
Overview
[1] Mr. Noah Spencer committed very serious offences. He was found guilty of possessing a loaded prohibited or restricted firearm and an overcapacity magazine at a time when he was subject to a weapons prohibition; he was also found guilty of possessing fentanyl, methamphetamine, and crack cocaine, all Schedule 1 substances, for the purposes of trafficking. The combination of a loaded firearm and particularly deadly or addictive drugs is something that must be denounced in the strongest of terms because of the obvious and acute risk that these things pose to the community.
[2] At the same, Mr. Spencer is a young Black man who has suffered from both systemic disadvantages and a disadvantaged upbringing that is specific to him. He was 24 years old at the time he committed these offences. I accept that he has taken advantage of virtually every rehabilitative program that has been offered to him over the course of his pre-trial detention. I accept that, not only is rehabilitation a relevant sentencing principle because of Mr. Spencer’s age and the fact that this will be his first custodial sentence, but that he has demonstrated, through his institutional efforts and expressions of remorse, that he is willing and capable of making positive, pro-social changes in his life.
[3] The Crown seeks a global sentence of 6 years less pre-sentence custody: 3.5 years for the firearms offences, consecutive to 2 years for the CDSA offences, consecutive to 6 months for the breach of a weapons prohibition. I accept that the Crown’s sentencing position is within the middle of the relevant sentencing ranges for these offences. See, for example, Justice Boswell’s discussion of the range for trafficking small amounts of fentanyl in R. v. Campbell, 2024 ONSC 2220 at paras. 46-47 and the cases discussed therein, where amounts of less than 8 grams have received sentences ranging from 18 months to 30 months. With respect to the possession of a loaded prohibited or restricted firearm, see the sentences imposed in R. v. Morris, 2021 ONCA 680, R. v. Jackson, 2023 ONCA 746, R. v. Nur, [2015] 1 S.C.R. 553, R. v. Marshall, [2015] O.J. No. 53 and, most recently, R. v. Burke-Whittaker, 2025 ONCA 142.
[4] Both counsel agree on the principles that govern this sentencing – denunciation, and deterrence followed by rehabilitation and totality. Defence counsel takes no issue with the fact that the specific quantum of sentences Crown counsel seeks are within the appropriate ranges but emphasizes the mitigating factors and the amount of time spent in pre-sentence custody. Going forward, counsel seeks a one-year conditional sentence, which she argues is fit in virtue of the time Mr. Spencer has already spent in pre-trial custody and because it will better facilitate Mr. Spencer’s rehabilitation.
Pre-sentence custody
[5] Mr. Spencer has spent 557 real days in custody and is entitled to enhanced credit of 836 days. Counsel has tendered evidence indicating that he was triple-bunked for at least 94 of these days; was under lockdown for at least 141 of these days; and that on some days, the lockdowns overlapped with the triple-bunking, making those periods particularly onerous. Counsel seeks an additional 6-8 months of credit for these harsh pretrial detention conditions and for 4 months of restrictive bail conditions. I accept that consideration of difficult conditions in pre-sentence custody is warranted in the circumstances. I will treat this as a mitigating factor on sentence as recommended by R. v. Marshall, 2021 ONCA 344 and R. v. Brown, 2025 ONCA 164 and factor it into my assessment of what a proportionate sentence requires. I decline to award any credit for the 4 months Mr. Spencer spent on a restrictive bail, given the relatively brief time that he was on bail in the context of the length of these proceedings and the absence of evidence about how he spent that time or about the specific impact of those conditions on him.
Aggravating Factors
[6] At the time of his arrest, Mr. Spencer was in possession of a Glock 9mm pistol loaded with 9 cartridges in an overcapacity magazine. The pistol was in a satchel he wore across his body, such that the gun was within his easy reach. He was in actual possession of 3.52 grams of fentanyl with an approximate value of $600; 7.03 grams of methamphetamine with an approximate value of $350; and 6.02 grams of crack cocaine in one plastic bag, with an approximate value of $480. These are relatively small amounts on the spectrum of trafficking but for the reasons I provided finding Mr. Spencer guilty on October 1, 2024, I am sure that he did not possess them for personal use. It is aggravating that fentanyl, one of these substances, is particularly deadly and addictive; the other substances are less toxic but are certainly addictive. Each are capable of either ending lives or destroying the lives of the members of this community.
[7] Mr. Spencer possessed these items on a Sunday afternoon in a busy part of the city at a time when members of the community were out and about, going about their business. I accept the Crown’s submission that the Jane and Wilson area in Toronto is one that has been particularly affected by the unfortunate prevalence of firearms in this city. Mr. Spencer’s possession of such a deadly, loaded weapon at a time he was bound by a s. 110 weapons prohibition not to possess any weapons is seriously aggravating, as is the fact that he possessed this firearm in the context of trafficking illicit drugs, an activity he was doing in concert with another man while masked.
Mitigating Factors
[8] Mr. Spencer was youthful at the time of his arrest. He is not a first offender but these offences differ significantly in seriousness from the assault, uttering threats, and fail to comply convictions and sentences he received in 2020 and 2021. I am informed by the principle of restraint here, given Mr. Spencer’s relative youth and the fact that this will be Mr. Spencer’s first custodial sentence.
[9] Mr. Spencer has a varied work history and, while not employed at the time of these offences, I accept that he has some experience in carpentry and an interest in working in that trade. He has the support of his mother, his girlfriend, and is anxious to build a place for himself in his own young children’s lives.
[10] It is not sufficient to describe Mr. Spencer’s upbringing as simply “unfortunate” or “disadvantaged”. He was placed in Children’s Aid Society care at the age of six. Prior to that, his family situation was tumultuous. He has never had a father or father figure in his life. His formative years were spent in socio-economically challenged neighbourhoods. He struggled in school because of his unstable living situation and his diagnoses for Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder, for which he was eventually medicated as a boy.
[11] In 2022, Mr. Spencer was the victim of a serious, life-threatening stabbing. Apart from the obvious physical trauma this caused, it contributed to significant anxiety.
[12] He is a Black man who increasingly identifies with what he believes to be his Ojibway heritage on his mother’s side.
[13] I have no trouble concluding that Mr. Spencer’s offending was influenced by his disadvantaged circumstances – that there is a straight line or at least a slightly curved line between the way that he grew up (without any meaningful family supports, with psycho-educational impediments, in a socioeconomically disadvantaged community where he was exposed to anti-social influences) to the choices he made that culminated in his arrest. I accept that, in Mr. Spencer’s case, the strictures these circumstances placed on him were exacerbated by systemic disadvantages and racism.
[14] I also accept his own expressions of remorse, and his mother’s attestation about how he has matured since he began his time in custody. While Mr. Spencer is not entitled to the significant sentencing benefit of a guilty plea and the acceptance of responsibility that it denotes, I accept that his expression of remorse is sincere.
[15] My task in this sentencing is to balance these mitigating aspects of Mr. Spencer’s individual circumstances against the seriousness of the crimes he committed and the harm that they caused to the community – that is what the fundamental sentencing principle of proportionality demands. I agree that the global 6-year sentence that the Crown seeks properly reflects the seriousness of these offences and the primary sentencing objectives of denunciation and deterrence. But, because of the mitigating factors that I have referred to, and the relevance of the principles of restraint and totality, I do not think that a prison term of this length is necessary to achieve a fit and proportionate sentence. Conversely, I am satisfied that the conditional sentence that defence counsel seeks would be insufficient to achieve denunciation and deterrence here, and would result in a sentence that would be unfit and disproportionate to the gravity of these true crimes.
[16] In my view, a global sentence of 4-years less pre-sentence custody is warranted and appropriately balances the relevant aggravating and mitigating factors. I would have a much different view of what sentence is appropriate absent the mitigating factors that I have discussed. Mr. Spencer will receive consecutive sentences for the firearms, CDSA, and prohibition offences. While I have described what I view as the aggravating circumstances under which these offences were committed, I am not relying on them to “double count” these factors vis a vis my imposition of consecutive sentences. I am also mindful of the principle of totality here and as such will impose shorter sentences than each of these offences would attract standing alone. That means, for the CDSA counts, that Mr. Spencer will receive a sentence that could potentially be viewed as outside of the appropriate range for trafficking small amounts of fentanyl.
[17] The sentence will be apportioned as follows: 3 years for the firearms offences, consecutive to 6 months for the trafficking offences, consecutive to 6 months for the breach of the weapons prohibition. After deducting time spent in pre-trial custody, Mr. Spencer will have a net sentence of just over 20 months to serve, after which he will be subject to 12 months of probation, which I view as necessary to help facilitate his rehabilitation and to ensure that he continues the efforts he made in pre-sentence custody. He will also be subject to a lifetime weapons prohibition pursuant to section s. 109 (3) of the Criminal Code and a DNA order.
Dated: March 4, 2025
Justice Peter Scrutton