ONTARIO COURT OF JUSTICE
DATE: 2025-01-14
COURT FILE No.: Newmarket 2103817K
BETWEEN:
His Majesty the King
— AND —
Chadwick Francis
Before Justice Edward Prutschi
Heard on April 24-25, 2023 (TRIAL), December 2, 2024 (SENTENCING)
Reasons for Judgment on Sentence released on January 14, 2025
Jeremy Mutton and Amy Barkin — counsel for the Crown
Darren Sederoff — counsel for the accused Chadwick Francis
PRUTSCHI J.:
[1] On April 18, 2021, Chadwick Francis was stopped at a RIDE spot-check. After a brief investigation, he was discovered to be in possession of a handgun and ammunition. A trial was held on April 24-25, 2023, in which the sole issue raised was whether Mr. Francis had been racially profiled during the spot-check and subsequent search of his vehicle. On June 8, 2023, I dismissed the racial profiling application and Mr. Francis was found guilty of the following offences:
(i) Unauthorized possession of a restricted weapon in a vehicle [s. 94(2)];
(ii) Careless storage of a firearm [s. 86(3)];
(iii) Careless storage of ammunition [s. 86(3)]; and
(iv) Possession of a loaded restricted firearm [s. 95(2)].
[2] The detailed facts of the case along with my reasons for judgment on the racial profiling argument are set out in R. v. Francis, 2023 ONCJ 242. Following those reasons, sentencing was adjourned to allow for the creation of an enhanced pre-sentence report (“EPSR”) that would include not only general background on Mr. Francis but would provide social context evidence outlining how Mr. Francis’ experiences as a Black man influenced his involvement in the criminal justice system.
[3] Through no fault of Mr. Francis, the EPSR was delayed for many months as the Sentencing and Parole Project (“SPP”) worked through an extraordinary backlog. For this reason, we were only able to proceed with his sentencing in December of 2024.
Brief facts relevant to sentencing
[4] Mr. Francis was stopped at a RIDE spot-check. When asked about a strong odour of cannabis coming from his car, Mr. Francis produced a small, unsealed packet of cannabis. This triggered a Cannabis Control Act (CCA) search. While waiting outside the vehicle during the search, one of the officers, noting that Mr. Francis was shivering, offered him the coat from the drivers’ seat of the vehicle. Mr. Francis accepted. As the coat was being passed to Mr. Francis, the officer felt an unusual weight to one of the pockets. Mr. Francis said, “there’s something in there”. The officer then located a loaded Glock handgun.
[5] Further search of the vehicle produced a single round of 9mm ammunition on the floor behind the drivers’ seat, a set of plastic hardened knuckles and a folding knife in the centre console. A digital scale with white residue along with a grinder were found in a mesh pocket behind the passenger seat. A search of the trunk located a loader used to resupply a handgun magazine with rounds of ammunition.
Position of the parties
[6] The Crown attorney seeks a global sentence of 3.5 years in jail.
[7] Mr. Francis urges me to impose a conditional sentence order (CSO) of two years less one day.
Principles of sentencing
[8] The aim of any criminal sentence is to protect the public while contributing to respect for the law in a manner that helps to maintain a just, peaceful, and safe society. This goal is at the core of the sentencing principles outlined in s. 718 of the Criminal Code.
[9] A sentencing judge attempts to achieve this goal by imposing just sanctions which balance and address the specific sentencing principles including denunciation, both general and specific deterrence, and rehabilitation. A well-crafted sentence will promote a sense of responsibility in the offender and an acknowledgement of the harm they have caused to the community.
[10] The overarching goal of a fit sentence is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. In the case of first offenders, and particularly for youthful offenders, the principle of restraint demands that I carefully consider all options for a non-custodial sentence before turning to jail. Even where jail is called for, the sentence should be as short as possible to address the needs of denunciation and deterrence while leaving the doorway to rehabilitation open as widely as possible. For these reasons, sentencing is necessarily a highly individualized process, and each sentence must be customized and tailored to the circumstances of the specific offender and their specific offences.
Social Context and the EPSR
[11] The degree of responsibility of an offender requires a consideration of the person’s moral blameworthiness. This is necessarily impacted by unique factors in an offender’s background, life experiences, and personal circumstances.
[12] In the case of Mr. Francis, I am assisted in understanding his personal circumstances by the completion of the EPSR. This document situates Mr. Francis’ history and background within the larger disadvantaged social context experienced by Black Canadians.
[13] Such social context evidence assists me as a sentencing judge in my assessment of Mr. Francis’ degree of responsibility for these offences. It also helps me to appropriately balance the various principles and objectives of sentencing by properly framing them within the broader societal backdrop experienced by Black persons in Canada.
[14] While Mr. Francis is not required to demonstrate that systemic racism was the direct cause of his criminal conduct, his EPSR does establish a connection between the social context he grew up in and his terrible decision to arm himself with a gun.
[15] Mr. Francis is now 32 years old and was 29 at the time of these offences. He was born in Toronto and raised primarily by his mother with his father seeing him only a few isolated times in his life. His mother is a registered nurse who often worked 12-hour shifts. Despite the challenges of being a single parent, she lovingly dedicated herself to raising Mr. Francis and emphasized discipline at home in the hopes that – as she put it – her son would not become “a statistic”.
[16] Mr. Francis was raised in a middle-class bungalow in the Canlish neighbourhood of Toronto’s Scarborough community. It was a racially diverse area beside a low-income housing complex where Mr. Francis spent much of his time. Mr. Francis reported that Toronto police had a strong and visible presence in his neighborhood, and he experienced what he described as racial profiling in how the officers dealt with Black people in the community.
[17] He recalls being chased by police through the fields of a local community centre when he was a youth and says he was often harassed along with other Black youth for simply playing basketball at a local court. He felt that he was “roughed up” and “punished” by police whenever they caught up with him after he ran away, even though he had done nothing wrong. This sense of being racially profiled continued into adulthood as Mr. Francis described being stopped countless times while driving.
[18] Mr. Francis’ early education was largely unremarkable. As he grew older, he began to exhibit a more defiant streak and was suspended several times for fighting. He recalled one of those fights erupting when a classmate called him the n-word. Mr. Francis was expelled from his Grade 12 school for behavioural problems. He transferred briefly to an alternative school before finishing his secondary school credits.
[19] Mr. Francis began his early employment career in various construction roles including painting. Recently, while on bail awaiting this sentencing, he secured a job as a drone operator for a commercial construction company. Mr. Francis is very proud of this position where he sees opportunity for advancement. Although he has been working in this role for approximately one year, he recognizes that a jail sentence is likely to be a significant set-back for him on his employment path.
[20] About one year before these offences Mr. Francis was in his car with his friend following a rap performance they had attended. They heard gunshots and found a man pointing a gun at Mr. Francis demanding he hand over his jewellery. Mr. Francis was dragged out of the car at gunpoint and a fight broke out. Shots were fired and several people who were in the area were injured. Mr. Francis recognized that he was very fortunate to have escaped unscathed. He experienced feelings of anger and frustration at having been robbed. He felt that police were unhelpful in curbing such crimes and his negative childhood experiences with police contributed to his decision to take steps for his own protection. This, according to the EPSR, was the catalyst for Mr. Francis choosing to arm himself and why he was carrying a loaded firearm at the fateful RIDE stop a year later.
[21] In summary, the EPSR paints a picture of a man who grew up in a modest but not impoverished family. He experienced some elements of friction with the constant presence of uniformed police in his neighborhood and faced some barriers to an equitable education arising from racism that manifested in his classrooms. These shaped his adult life and created a layer of distrust towards police which was only exacerbated each time he was subjected to a traffic stop.
[22] The moderate impact of systemic racism on Mr. Francis only marginally impacts his own moral blameworthiness in the circumstances of this case. However, the EPSR reveals that the dominant factor in Mr. Francis’ decision to arm himself with a handgun was his own victimization at the hands of gun violence. This eye-for-an-eye approach clearly does nothing to excuse his conduct, but it does inform his moral blameworthiness when I consider what influenced Mr. Francis to carry a gun.
Eligibility for a CSO
[23] Section 742.1 of the Criminal Code governs the availability of conditional sentences. None of the offences Mr. Francis has been found guilty of are statutorily excluded from conditional sentence consideration.
[24] To be eligible for a conditional sentence I must first be satisfied that the appropriate sentence in these specific circumstances is less than two years imprisonment. If I reach that conclusion, I must further be satisfied that a conditional sentence does not endanger the safety of the community and that it is consistent with the fundamental principles of sentencing discussed earlier.
[25] It is well established that even the principles of denunciation and general deterrence can be adequately addressed by a suitably punitive conditional sentence in the right circumstances.
Factors to be considered on sentencing
A. The spectrum of firearms possession
[26] The possession of prohibited and restricted firearms spans a broad range of illegal activity that attract different levels of moral blameworthiness depending on where one falls along that spectrum. At the low end of the range is the lawful licensed firearm owner who stores an unloaded weapon together with readily accessible ammunition. This offender is guilty of something very close to a regulatory infraction that might attract little or no jail sentence. At the other end of the spectrum is the offender who chooses to arm themselves with a handgun because it is a necessary tool of a violent criminal trade such as drug trafficking. This offender’s conduct should attract extreme sanctions that include lengthy jail terms even for first offenders.
[27] Mr. Francis lies between these two extremes. He had no authorization or license for the handgun. The weapon was loaded with an additional round of ammunition found loose in his car and a magazine loader accessible in the trunk to aid in the quick resupply of further ammunition. The gun was carried in his jacket pocket, readily available to him at a moment’s notice while driving on a public roadway. Carrying it in this manner put everyone around him at risk but posed a particular danger to the police officers engaged in the RIDE spot check.
[28] Also near Mr. Francis was a set of hardened knuckles and a knife located in the centre console of his car. A digital scale with white residue and a grinder were found in the same vehicle. While these are circumstances that give rise to some reasonable suspicion, the Crown conceded that there was no evidence proving Mr. Francis was involved in any peripheral criminality. Collectively this places Mr. Francis in the middle of the firearms possession spectrum.
B. Motive for possessing a firearm
[29] I accept at face value Mr. Francis’ assertion (outlined in the EPSR) that he began carrying the gun for his own protection after becoming the victim of a violent gun-point robbery himself about a year prior to these offences. While this information provides an explanation for his decision, it by no means excuses it. The choice to respond to gun violence by acquiring a gun simply feeds the continuing cycle of tragedy wrought by firearms in this Province. As the caselaw I review below indicates, an offender’s motivation for choosing to possess an illegal gun is of some limited mitigating value, but it does not substantially impact the appropriate sentencing range.
C. The appropriate sentencing range
[30] Although the Supreme Court of Canada struck down the mandatory minimum penalties that would otherwise have applied in this case, it is sometimes forgotten that the Court still upheld a significant penitentiary jail sentence for Mr. Nur who was a 19 year old first offender in possession of a loaded handgun unconnected to any other criminality. [1]
[31] The Crown provided me with a sampling of cases that dealt largely with other youthful first offenders. Several of the cases can be distinguished from Mr. Francis’ circumstances by virtue of prior criminal records, poor rehabilitative prospects, or the existence of other criminality associated with the gun possession. All of them however suggest that possession of a loaded firearm calls for a strong denunciatory sentence that would generally be outside of the conditional sentence range. While I have considered all of the cases drawn to my attention by the Crown, the following three were particularly instructive in helping to fix the appropriate sentencing range. [2]
R. v. Marsan, 2020 ONCJ 638
[32] Mr. Marsan was only 20 years old with no prior criminal record and of good character at the time of his arrest for possession of a loaded firearm. He entered a guilty plea at a very early stage and did exceptionally well on bail, complying with restrictive conditions and completing a six-week addiction program plus its follow up. He also performed 107 hours of volunteer work.
[33] He had possessed the gun for protection after having been robbed at gunpoint when he was 16. Later he suffered another violent attack that left him with a head and shoulder injury. These two events contributed to PTSD that was a factor in his decision to arm himself. Though not readily available on his person as it was with Mr. Francis, Mr. Marsan’s gun was found in a satchel in the trunk of his car.
[34] Justice Pringle concluded that possession of a firearm for protection neither excuses nor mitigates that seriousness at the core of this offence. She noted at paragraph 21 that,
The moral culpability in committing this offence remains high, no matter the reason for committing it. The gun was loaded, meaning Mr. Marsan was prepared to use it. There is no ‘safe’ possession of illegal firearms on the streets of Toronto. It is a most serious offence.
[35] Justice Pringle conducted an extensive review of the relevant caselaw at paragraph 29 of her decision and I have benefited greatly from these efforts. After reviewing numerous other appellate and Supreme Court of Canada authorities, she concluded that the range of sentence for gun possession by a first offender is between 3 and 5 years where the possession is connected to other criminal activity. Citing the ONCA decision in R. v. Smickle, 2014 ONCA 49, she further concluded that gun possession unconnected to other criminal activity still calls for a jail sentence near the maximum reformatory sentence.
[36] Having found the range encompasses sentences within the CSO target, Justice Pringle went on to consider the appropriateness of a community sentence. Though a CSO would not endanger the safety of the community, she found that it was simply inconsistent with the fundamental purposes and principles of sentencing as such a sentence for “driving around Toronto armed with a loaded illegal firearm” is incapable of satisfying the objectives of denunciation and deterrence.
R. v. Mohiadin, 2021 ONCA 122
[37] Though the ONCA treated this sentence appeal as a fresh hearing, they nevertheless imposed a 3 year jail sentence on a 19 year old first offender. Mr. Mohiadin had not entered a guilty plea but his trial, much like that of Mr. Francis, was focused solely on a Charter application with the balance of the case conceded.
[38] Mr. Mohiadin’s brother had died of gun violence, and this motivated him to possess a gun himself. His prospects for rehabilitation were considered excellent.
R. v. Mesinele, 2023 ONCJ 28
[39] Mr. Mesinele was also 19 years old with no prior criminal history when he was found guilty after a Charter focused trial. Justice Felix found Mr. Mesinele to be genuinely remorseful and was clearly impressed by the meaningful comments delivered by the young man during his allocution. Mr. Mesinele had been the victim of a stabbing though this was not cited as a direct catalyst for his decision to acquire a gun.
[40] In addressing the application of social context evidence for Black offenders, Justice Felix noted at paragraph 31 that racialized communities – like the broader general Ontario community – expect courts to meaningfully denounce and deter the possession of illegal firearms in the hopes that such actions might lead to improved safety on their streets.
[41] Justice Felix highlighted the “epidemic of firearm-related crime in the GTA” in concluding that sentences for the possession of illegal firearms should be increasing. He noted his own comments in R. v. Rudder, 2022 ONCJ 367, where he described the public as being understandably “fed up” with gun crime.
[42] After a thorough review of the caselaw he concluded that the appropriate range of sentence in such circumstances was 3 to 3.5 years though he adjusted that downwards to two years and ten months after considering mitigating factors.
[43] This sentence clearly put a CSO outside the permissible range though Justice Felix went further and noted at paragraph 82 that a conditional sentence would not be consistent with the principles of sentencing: “Bluntly, a conditional sentence would not provide sufficient denunciation to those who would voluntarily possess loaded illegal handguns in our society.”
[44] The defence also provided me with a sampling of recent cases where conditional sentences were imposed in gun possession cases. These cases suggest that, particularly for young, racialized offenders who arm themselves in response to prior history with personal violence, a conditional sentence can properly address all the relevant sentencing principles. As with the Crown’s cases, I will not review every precedent to which my attention was drawn, but I highlight the following as providing an important and reasoned counterpoint to the Crown’s authorities.
R. v. Beharry, 2022 ONSC 4370
[45] Mr. Beharry was 32 years old with no previous criminal record when he was sentenced for carrying a loaded handgun in a fanny pack on the back seat of his car. He possessed the gun for personal protection arising out of his experiences growing up and living in a neighbourhood frequented by gun violence.
[46] Justice Schreck, noting the seriousness of gun possession, stated that the “motive for possessing the firearm has only a limited mitigating effect” (at paragraph 23) though he does distinguish such cases from those where offenders possess a gun to further another criminal purpose (at paragraph 24).
[47] Like Mr. Francis, Mr. Beharry had the benefit of an EPSR which set out his personal historical experiences against the backdrop of broader social context evidence for Black Canadians. Mr. Beharry grew up fatherless and in poverty. He never completed his education and had dim employment prospects. He lived in an area plagued by crime and drug use and grew up with having frequent negative experiences with police.
[48] Justice Schreck noted that none of these factors excused Mr. Beharry’s bad choices but, “consideration of his choices in the context of his background leads to the conclusion that his degree of responsibility is less than it would have been had his background been different” (at paragraph 28).
[49] In determining the appropriate sentencing range, Justice Schreck cited the well-established 3-5 year term for situations where gun possession is associated to other criminal activity such as drug trafficking. He however noted that lower sentences in the upper reformatory or lower penitentiary range could apply to mid-spectrum gun possession “where the firearm is not possessed in connection with other criminal activity” (at paragraph 31). After considering the aggravating and mitigating factors, Justice Schreck concluded that a two-year sentence was appropriate for Mr. Beharry. He therefore went on to consider if a conditional sentence could adequately address the relevant sentencing principles.
[50] Justice Schreck provided an important reminder to sentencing judges when he noted at paragraph 43 that,
All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing set out in s. 718 of the Code, which is to “protect society”. Arguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect.
[51] With this in mind, after balancing the aggravating and mitigating factors, Justice Schreck concluded that a conditional sentence would most appropriately achieve that over-arching goal of protecting society.
[52] Without reviewing in detail the balance of the cases presented by counsel for Mr. Francis, I note that there is a growing body of caselaw in which carefully crafted conditional sentences have been imposed to address gun possession cases where substantially mitigating circumstances exist. [3] These stand in contrast to a large body of precedent which emphasizes the necessity of deterrence and denunciation leading to a conclusion that a penitentiary sentence is required. Suffice it to say, the job of a sentencing judge in such circumstances is highly complex and both approaches find support in well-reasoned decisions by courts at various levels across Ontario.
[53] The sentencing range therefore for a first offender possessing a gun unconnected to other criminality spans a maximum reformatory term of two years less one day, to a low-end penitentiary sentence of up to 3.5 years in jail. With this in mind, I turn now to outlining the specific circumstances facing Mr. Francis.
D. Aggravating Factors
[54] The proliferation of firearms in our society is one of the most disturbing and concerning criminal justice trends of the last decade. Gun violence has penetrated every major city in Canada impacting not just criminals who violently ply their trade on the streets of our neighborhoods, but entirely innocent residents who have the misfortune to become collateral statistics of such violence.
[55] At the forefront of combatting this trend are the rank-and-file police officers who are exposed to extraordinary danger in every confrontation and traffic stop where they interact with someone who happens to be armed with an illegal handgun.
[56] Even without a connection to other criminality, the mere possession of a loaded illegal firearm poses extreme risk and constitutes a serious crime in and of itself. An offender’s motivation to protect themselves does little to diminish the danger they introduce to our streets by choosing to arm themselves in this way. To have a loaded handgun in arm’s reach while driving a car in public demonstrates a willingness to use that gun should the situation deteriorate. This is highly aggravating criminal conduct that demands strong sanction even for a first offender.
E. Mitigating Factors
[57] Many of the cases in which serious consideration is given to the possibility of a conditional sentence involve very youthful first offenders who have entered a guilty plea. Mr. Francis’ situation bears both similarities and differences to this archetype.
[58] Importantly, he has no prior criminal record. Though he did not enter a guilty plea, his trial proceeded in a focussed manner with the issues narrowed solely to the question of racial profiling. His choice to exercise his right to a trial cannot be held against him, though it does limit the mitigation impact that is associated with an early guilty plea.
[59] The term ‘youthful’ is difficult to quantify with precision. It is well established that the immaturity of a youthful offender bears some relevance to their moral culpability, and this is most commonly seen in offenders in their late teenaged years or early twenties. Mr. Francis was 29 years old at the time of his offences and I find it would be an improper stretch to characterize his decision to obtain and carry a handgun as some form of youthful indiscretion.
[60] At the same time, I recognize that he has the potential for a fulsome life ahead of him that today appears to be on a very positive trajectory. He secured meaningful employment as a drone operator for a commercial construction company and should be applauded for having obtained and maintained this job while facing the challenges of his impending trial and during his time on bail.
[61] His success while on nearly 44 months of bail that included residency and curfew conditions makes me very optimistic about his potential for rehabilitation. He is surrounded by a loving and supportive family represented by his mother, uncle and girlfriend who have attended court with him many times. This very lengthy period of time on release is a highly unusual circumstance of this case.
[62] For various reasons, both the trial and sentencing proceeded at a much slower pace than normal. This delay served as a double-edged sword for Mr. Francis. Throughout that time he was under close scrutiny and subject to bail compliance checks including ensuring that he was abiding by his nightly curfew conditions. To his great credit, Mr. Francis not only complied with all the terms of his release but managed to make meaningful rehabilitative progress by securing and maintaining improved employment. While past performance is not necessarily indicative of future success, Mr. Francis has demonstrated in the most concrete way possible that he can thrive while under court-imposed conditions without putting the public at risk.
[63] During his allocution Mr. Francis expressed remorse about his decision to carry a gun noting that he put others at risk, ruined his strong work opportunities, and let his mother down. He indicated that he had spent a great deal of time thinking about his situation and recognized that he made a “stupid” and “senseless” choice that was rooted in “selfishly not thinking about anyone else”. He acknowledged that he allowed his past experiences as the victim of violence to cloud his judgment.
The fit sentence for Mr. Francis
[64] If a conditional sentence served only the needs of Mr. Francis, though still compelling, I would not have imposed it. I have however concluded that in his specific circumstances, the interests of the public are substantially better served by a community sentence over a lengthy period of incarceration. I say this cognizant of a number of factors.
[65] First, I note the huge economic costs that would be associated with jailing Mr. Francis. I am also acutely aware of the deteriorating conditions in many of our jails – both provincial reformatories and federal penitentiaries – where overcrowding has contributed to startling conditions that would shock the conscience of reasonable Canadians should they ever have the misfortune to observe the realities inside of the prison walls.
[66] A jail sentence of any meaningful length would shatter the stable and positive employment Mr. Francis has secured. It is to his great credit that Mr. Francis was not paralyzed by his impending sentence into inaction, but rather acquired a new job and held it for over a year while on bail conditions that included a nightly curfew. Steady lawful employment is perhaps the single most important factor in ensuring an individual's pro-social stability as they contribute economically to the betterment of their community.
[67] I have also considered the risks of placing a relatively young man with a good job and no prior criminal record into an environment where, for years, his primary social group and influence would be a population consisting entirely of other criminals. To expect Mr. Francis to emerge from such an environment as a better more pro-social human being requires a level of optimism bordering on folly.
[68] Finally, I note that a conditional sentence can be combined with a term of probation – an option not open to me when imposing a penitentiary sentence. The probation order creates an offramp from the more restrictive conditional sentence which helps to ensure Mr. Francis is supervised by the courts for an extended period of time while he continues along a rehabilitative path.
[69] I return to the analysis of Justice Schreck in Beharry. Deterrence and denunciation are important drivers for sentencing in firearms offences. Yet the ultimate goal of any sentence is not punitive vengeance but the protection of the public. There are many instances in which the best way to protect the public from an offender involved in gun crimes is jail. For all its faults, prison is highly successful at separating an offender from the public and ensuring they do not harm anyone outside the prison walls over the course of their sentence. But protection of the public does not end when the jail term ends. In my view the public is best protected from Mr. Francis if he is able to continue to progress along the positive path he has started down these past 44 months.
[70] For all of these reasons, it is clear to me that a conditional sentence not only presents no safety risk to the community but, on the contrary, is capable of contributing to the rehabilitation of Mr. Francis in a way that actually strengthens his surrounding community.
[71] The sentence will therefore be, concurrent on all counts, a conditional sentence order of two years less one day. In addition to the statutory conditions Mr. Francis is subject to the following conditions for the totality of the CSO:
- Report to his conditional sentence supervisor (CSS) today and thereafter as required.
- Reside at an address approved of by his CSS and not change that address without obtaining the prior consent of the CSS in advance.
- Not be in possession of any weapons as defined by the Criminal Code.
- Complete 150 hours of community service on a rate and schedule to be determined by your CSS. This community service is to be completed within the first 18 months of the CSO.
- Seek and maintain full time employment or attend school on a full time basis.
[72] Additionally, for the first 18 months of the CSO, Mr. Francis is subject to GPS-monitored home confinement and is to remain on the property of his approved address at all times unless in accordance with one of the following exceptions:
- Medical emergencies involving yourself or a member of your immediate family.
- Travelling directly to and from, or while being at: school, employment, the performance of community service, court attendances, religious services, and legal / medical or dental appointments. The schedule for these activities is to be confirmed at least 48 hours in advance with your CSS.
- Each Saturday between the hours of 11:00am and 3:00pm for the purposes of acquiring the necessities of life.
- For all other purposes, with the written approval of your CSS. This approval is to be carried on your person during these times.
[73] You will comply with all the requirements of the GPS monitoring program provided by the Ministry of the Solicitor General. The GPS rules and protocols will be attached to this order as Schedule “A”.
[74] For the last 6 months of the CSO, you are subject to a curfew each and every night from 10pm to 6am. The only exceptions to this curfew are for:
- Medical emergencies involving your or a member of your immediate family; or
- With the prior written approval of your CSS with such approval carried on your person during these times.
[75] Upon the completion of your CSO, you are further subject to a Probation Order for a period of 18 months. In addition to the statutory terms of all probation orders, you are:
- To report to your Probation Officer (PO) within 3 business days of the completion of your CSO and thereafter as directed by your PO.
- Reside at an address approved of by your PO and not change that address without obtaining the prior written consent of the PO in advance.
- Not to be in possession of any weapons as defined by the Criminal Code; and
- Continue to seek or maintain full time employment or attend school on a full time basis.
[76] You are also subject to the following ancillary orders:
- Pursuant to s. 109 of the Criminal Code you are prohibited for a period of 10 years from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances.
- Possession of a restricted firearm is a secondary designated DNA offence and, despite the absence of any criminal record, the seriousness of this offence and its circumstances satisfies me that it is in the best interests of justice to require you to provide a DNA sample in accordance with s. 487.051(3)(b) of the Criminal Code.
[77] Finally, the Crown proceeded by indictment on these charges and Mr. Francis has been gainfully employed for at least the past year. I will allow him 120 days to pay the associated Victim Fine Surcharges that attach to these charges.
Released: January 14, 2025
Signed: Justice Edward Prutschi
Footnotes
[2] In addition to the cases I have explicitly reviewed here, the Crown also drew my attention to the cases of R. v. Clarke Brown, 2021 ONCJ 378; R. v. Marshall, 2015 ONCA 692; and R. v. Henry-Robinson, 2022 ONCJ 302.
[3] See for example, R. v. Edwards, 2023 ONCJ 53; R. v. Fagan, 2024 ONSC 2718; R. v. Filian-Jimenez, 2014 ONCA 601; R. v. Hussey-Rodrigues, 2024 ONSC 2671; and R. v. Stewart, 2024 ONSC 281.