ONTARIO COURT OF JUSTICE
DATE: 2025-01-14
COURT FILE No.: Sudbury 24-40102978
BETWEEN:
HIS MAJESTY THE KING
— AND —
RYAN WOOD
Before Justice G. Jenner
Heard on January 13, 2025
Reasons for Judgment released on January 14, 2025
Kevin Ludgate, Alayna Jay — counsel for the Provincial Crown
Serge Treherne — counsel for the Federal Crown
Jessica Belisle — counsel for the defendant Ryan Wood
JENNER J.:
REASONS FOR SENTENCE
I. Introduction
[1] The offender, Ryan Wood, pleaded guilty to possessing a prohibited firearm with ammunition readily accessible and without authorization or license contrary to s. 95(1) of the Criminal Code, and to possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.
[2] The facts were presented in an Agreed Statement of Fact and are uncomplicated. On December 21, 2023, the Greater Sudbury Police Service executed a search warrant at the upper unit of 516 Melvin Street, Sudbury, Ontario. They found:
- a Glock 9mm semi-automatic handgun, a prohibited firearm;
- loaded within the handgun, a Glock detachable box magazine, itself a prohibited device, loaded to capacity with 15 cartridges of centre fire ammunition;
- an SGM Tactical detachable box magazine capable of holding 31 cartridges of 9 mm centre fire ammunition, another prohibited device;
- 32 cartridges of Blazer 9mm Luger centre fire ammunition, in a sock; and
- 23.1 g of cocaine valued at approximately $2,340.00.
[3] The handgun was located on the floor of a closet with the Glock detachable box loaded in it. The remaining detachable box and other ammunition was also in the closet, but within a backpack. The cocaine was found in a lunch bag in the kitchen of the residence. Also found within the residence: Mr. Wood’s identification and correspondence, three BB guns, two BB gun magazines, $405.00 in Canadian currency, and a digital scale.
[4] Mr. Wood acknowledges his possession of the cocaine for the purpose of trafficking as well as possession of the handgun, ammunition, and prohibited accessories.
[5] On the firearm count, the Crown seeks an effective sentence of four years’ imprisonment. On the CDSA count, the Crown seeks two years’ imprisonment, to be served concurrently. The parties agree that as of today, Mr. Wood has been in custody for 390 days, and that he should be credited on a 1.5:1 basis for 585 days. The Crown therefore seeks a further 875 days’ custody.
[6] Mr. Wood asks the court to sentence him on both counts to time-served, and in the alternative, to impose any further custodial sentence as a conditional sentence order (CSO), to be served in the community.
II. Statutory Sentencing Considerations
[7] When the Crown proceeds indictably, as it must here, the firearm offence under s. 95(1) is punishable by up to 14 years’ imprisonment. Possession of cocaine for the purpose of trafficking has a maximum penalty of life imprisonment.
[8] Pursuant to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and contribute to the respect for the law and the maintenance of a just, peaceful, and safe community by imposing just sanctions that have one or more of the following objectives:
(a) To denounce lawful conduct and the harm done to victims or the community;
(b) To deter the offender and others from committing offences;
(c) To separate offenders from society where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparation for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledge the harm done to victims or the community.
[9] Several other general principles apply:
- Proportionality: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.
- Aggravating and Mitigating Factors: A sentence should be increased or decreased to account for relevant aggravating or mitigating circumstances, including but not limited to those statutory factors set out in s. 718.2(a).
- Parity: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b).
- Restraint: An offender should not be deprived of liberty if less restrictive sanctions may be appropriate: s. 718.2(d). All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e).
[10] Section 742.1 of the Criminal Code permits me to order an offender to serve a sentence of less than two years’ imprisonment in the community under the conditions of a CSO in certain circumstances. Neither offence in this case is specifically excluded under ss. 742.1 (b)-(d), so the operative question is whether I can be satisfied that permitting Mr. Wood to serve a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.
III. Analysis
3.1 Circumstances of the Offender
[11] Mr. Wood is 31 years old. He grew up in the Bahamas. His early life was very challenging. His father was murdered. Mr. Wood’s mother raised him and his sisters. His neighbourhood was rife with gang-related violence. Mr. Wood was bullied and isolated. He graduated high school and attended but did not complete trade school. He held jobs as a store clerk and then water delivery person.
[12] At age 23 Mr. Wood moved to Canada and successfully applied for refugee status. He settled in Sudbury. He describes experiencing significant racism here. He had trouble finding stable housing and employment. He says he then got mixed up with the wrong crowd and became addicted to drugs.
[13] Mr. Wood has a criminal record. It is not lengthy, but it is both serious and related to his current offences. In 2022, in Sudbury, he was convicted of the following:
- Careless use of a firearm, weapon, prohibited device or ammunition (s. 86(1));
- Two counts of failing to comply with a release order (s. 145(5)(a));
- Possession of a prohibited or restricted firearm with ammunition (s. 95(1));
- Two counts of assault (s. 266);
- Failing to comply with an undertaking (s. 145(4)(a)); and
- Breaking and entering (s. 348(1)(b)).
[14] Globally, Mr. Wood was credited for 690 days of presentence custody and was sentenced to a further 405 days’ imprisonment, an effective three-year sentence. He was placed on probation for two years to follow and was prohibited from possessing firearms for ten years pursuant to s. 109 of the Criminal Code.
[15] Mr. Wood was bound by both the probation order and the s. 109 order at the time of these new offences.
[16] Mr. Wood has taken positive steps during his time in custody, completing nearly 40 educational programmes. He addressed the court during the sentencing hearing, and apologized for his acts, emphasizing his irresponsibility, selfishness, and shame. It was clear that Mr. Wood spent considerable time and effort reflecting on this matter, and I thank him for sharing his own insights.
3.2 Appellate Guidance with Respect to s. 95(1) offences
[17] The parties focused their submissions on the firearm count. Both the Crown and the defence consider it to be the more serious offence. Without discounting the severity of drug trafficking, I agree.
[18] With respect to firearm possession of this nature, the Court of Appeal for Ontario has provided considerable sentencing guidance.
[19] In R. v. Smickle, 2014 ONCA 49, para. 19, the court emphasized that “most s. 95 offences will attract a penitentiary term even for first offenders” and noted that even atypical s. 95 offences on the less serious end will generally demand sentences at or very near the maximum reformatory sentence.
[20] In R. v. Nur, 2013 ONCA 677, the court struck down as unconstitutional the then-minimum sentence of three years’ custody (which determination was later upheld by the Supreme Court of Canada; see 2015 SCC 15) but observed as follows at para. 206:
Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.
[21] In R. v. Marshall, 2015 ONCA 692, para. 49, the court of appeal, now post-Nur, upheld a 3.5-year sentence for a youthful 23-year-old first time offender who was in possession of a prohibited loaded handgun in conjunction with cocaine trafficking activity. The court held as follows:
There can be no doubt that this type of crime, in the circumstances described above, is an offence at the “true crime” end of the s. 95 spectrum of offences described by this court in Nur. Denunciation, deterrence and protection of the public are unquestionably the paramount principles of sentencing implicated for such a crime.
[22] These principles have been re-emphasized more recently in R. v. Mohiadin, 2021 ONCA 122, resulting in a three-year sentence for a youthful first offender.
[23] In parallel, the Ontario Court of Appeal has offered guidance with respect to the relevance and impact of systemic anti-Black racism in sentencing. In R. v. Morris, 2021 ONCA 680, para. 13, the court emphasized the profound and insidious impact that overt and systemic anti-Black racism has within our society and justice system and summarized its conclusions:
- The trial judge’s task in sentencing is to impose a just sentence tailored to the individual offender and the specific offence in accordance with the principles and objectives laid out in Part XXIII of the Criminal Code;
- Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718;
- The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence;
- Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender;
- Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided;
- The Gladue methodology does not apply to Black offenders. However, that jurisprudence can, in some respects, inform the approach to be taken when assessing the impact of anti-Black racism on sentencing.
[24] The court also cautioned as follows at para. 97:
There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount:
[25] In a second decision of the same name, but involving a different offender, R. v. Morris, 2023 ONCA 816, the Court of Appeal examined both the impact of the first Morris decision and had occasion to review the sentencing principles applicable to s. 95 offenders, and in particular repeat ones. The court reduced a sentence of 6 years and 9 months by one year to account for the effects of anti-Black racism on the offender. Like Mr. Wood, the offender had two years earlier been handed a penitentiary sentence (though of 2.5 years) for possession of a loaded prohibited or restricted firearm.
[26] In a concurring opinion in R. v. Morris, 2023 ONCA 816, para. 87, Roberts J.A. observed that:
“[f]or s. 95 recidivists who have breached a s. 109 prohibition order, the caselaw supports a penitentiary sentence in the range of four to nine years of imprisonment.”
This is supported by reference to:
- R. v. Graham, 2018 ONSC 6817, paras. 39-42, aff’d 2020 ONCA 692;
- R. v. Khalid, 2022 ONCA 501, para. 33;
- R. v. Charles, 2013 ONCA 681, aff’d 2015 SCC 15;
- R. v. Slack, 2015 ONCA 94, paras. 23-24 and 27-29.
3.3 Mitigating and Aggravating Factors
[27] I identify the following aggravating factors in this case:
- Mr. Wood’s recent and related criminal record;
- That the offences were committed while Mr. Wood was on probation, and while Mr. Wood was bound by a s. 109 prohibition order;
- That the firearm offence was committed in conjunction with the possession of cocaine for the purpose of trafficking; and
- The presence of additional prohibited firearm accessories, and significant ammunition.
[28] Mitigating factors in this case include:
- Mr. Wood’s plea of guilt;
- Mr. Wood’s expression of remorse, which I accept as considered and sincere;
- Mr. Wood’s prospects of rehabilitation. He is still a young man at 31 years of age, and has demonstrated a capacity to work to better himself;
- Mr. Wood’s difficult personal circumstances, which include his troubled youth, and his experience as a refugee struggling to stabilize in Northern Ontario, including his exposure to substance abuse and to anti-Black racism.
[29] Both the Crown and defence addressed the issue of whether the handgun found was “used” by Mr. Wood. “Use” can be an equivocal term. I agree there is no evidence that Mr. Wood brandished or discharged the firearm. There is an absence, then, of what would be a significant aggravating feature, if not a further delict to attract its own sentencing. But the possession of a handgun in conjunction with drugs to be trafficked is not coincidental. And simply because a handgun was not wielded or discharged does not mean it was not “used” to further the criminal enterprise. The handgun, the other devices, and the significant volume of ammunition was there to deter and to be wielded if needed, either to threaten and intimidate, or worse.
3.4 Application
[30] When I consider the circumstances of the offence and offender, including the mitigating and aggravating factors, I find the defence position would be insufficient to balance and satisfy the principles of sentencing. An effective sentence of 590 days (or approximately 19.5 months), even with an additional CSO of up to 24 months, would not sufficiently meet the demands of deterrence, both specific and general, and denunciation. Indeed, it is difficult to fathom how a sentence that is less severe than that previously imposed could be seen to sufficiently deter Mr. Wood from such future conduct.
[31] Nor would the sentence proposed by the defence respect parity between Mr. Wood and like offenders with his similar and aggravating criminal record, as demonstrated by the range examined in R. v. Morris, 2023 ONCA 816, for recidivists.
[32] I am also concerned, given the exceptional dangerousness of the firearm and other prohibited devices found, and Mr. Wood’s demonstrated history of non-compliance with court orders, that the defence proposal would not adequately separate Mr. Wood from society, and would pose a risk to public safety.
[33] I am mindful of the caselaw provided by the defendant indicating the imposition of CSOs for s. 95 offences, specifically R. v. Izaz, 2024 ONSC 6460, R. v. McLarty-Mathieu, 2022 ONCJ 498, R. v. Mesinele, 2023 ONCJ 28, and R. v. Orin Moses, 2022 ONSC 332. I agree, however, with the Crown submission that these cases are demonstrative of exceptional circumstances considered in the context of youthful first-time offenders. They are of limited assistance in sentencing a repeat offender who has already served the equivalent of a three-year penitentiary sentence for similar conduct.
[34] I do accept that Mr. Wood has experienced significant racism. I take that factor into account as mitigating, to an extent, his own moral blameworthiness. His struggles to achieve stability in terms of housing, employment, and his vulnerability to addiction were likely impacted by anti-Black racism. The weight of this factor is attenuated, however, by the paucity of evidence I have establishing a clearer nexus to the specific offences committed.
[35] When I turn my mind to the Crown position of four years, I find that it is at the extreme low end of the range suitable to the circumstances. The inescapable reality for Mr. Wood is that in 2022 he was sentenced for an array of serious offences which included the possession of a prohibited or restricted firearm either loaded or with ammunition readily accessible. He was given an effective three-year sentence. He was placed on probation and prohibited from possessing firearms. Based on his criminal record he would have finished serving the jail portion of that sentence in the Spring of 2023. And, by year’s end, he was in possession of another handgun, loaded with a prohibited detachable box, and another prohibited detachable box with—it bears emphasizing—a capacity to house 31 rounds. These items were possessed in conjunction with a drug trafficking scheme.
[36] In those circumstances, an increase from the previous sentence of three years to only four years approaches, in my view, the absolute minimum appropriate sentence, even accounting for the impact of the mitigating features in this case, including Mr. Wood’s personal circumstances. The Crown position more than accounts for the principle of restraint, including the need to consider the principle of restraint in conjunction with the well-established over-incarceration of Black offenders: see R. v. Morris, 2021 ONCA 680, para. 123; R. v. Morris, 2023 ONCA 816, para. 44. The criminal record, extant orders, presence of drugs for trafficking, and the presence of dangerous prohibited accessories could well justify a sentence closer to the upper end of the recidivist range.
[37] On that basis, should the sentence be more than four years?
[38] This was not a joint submission. I am not, therefore, bound by the principles and procedures set out by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. I have the discretion to depart upwards from the Crown position, though I would be obligated to invite submissions on that issue in advance: R. v. Blake-Samuels, 2021 ONCA 77. I have not done so. I recognize this was a situation in which the Crown agreed to cap its sentencing position in consideration of a guilty plea. I recognize as well that there appear to have been triable issues in this case, including but not necessarily limited to the legal components of possession: knowledge and control. I consider that the Crown is in a unique position to assess its case, mindful of prosecutorial and court resources, and to craft appropriate resolution positions. Though this is a case where I might have imposed a sentence further along the range discussed Morris (2023), the Crown’s position falls just within that range, and I will not disturb their assessment.
IV. Conclusion
[39] On the s. 95(1) firearm count, Mr. Wood will be sentenced to an effective four years’ imprisonment. He will be credited for presentence custody of 390 days on a 1.5:1 basis for 585 days. He will be sentenced therefore to 875 days’ custody going forward.
[40] On the CDSA count, he will be sentenced to 548 days, reflective of approximately 18 months, to be served concurrently.
[41] The parties agree that Mr. Wood should be prohibited from possessing firearms for life pursuant to s. 109 of the Criminal Code, that he should be ordered to provide a sample of his DNA for the national DNA Databank, and that there should be a forfeiture order for all items seized but for Mr. Wood’s mobile phone. Those orders shall issue.
[42] I will waive the victim fine surcharges given Mr. Wood’s pretrial incarceration and prison sentence remaining.
[43] The remaining counts will be marked withdrawn at the Crown’s request.
[44] I thank counsel for their organization and focused submissions in this matter.
Released: January 14, 2025
Signed: Justice G. Jenner