R. v. Davis, 2025 ONCJ 235

ONTARIO COURT OF JUSTICE

DATE: 2025 04 22
COURT FILE No.: Windsor 22-170

BETWEEN:
HIS MAJESTY THE KING
— AND —
LAWRENCE DAVIS

Before Justice S. G. Pratt
Heard on 23 October, 3 November 2023, 2 August, 11, 28 October 2024, 13 March 2025
Reasons for Judgment released on 22 April 2025

Iain Skelton ........................................................................................... Counsel for the Crown
Patricia Brown ............................................................................ Counsel for the Defendant

REASONS FOR SENTENCE

Contents

• Facts . 2
• Positions of the Parties . 3
• The Presentence Reports . 3
• The Principles of Sentencing . 6
• Caselaw .. 9
• Aggravating Factors . 11
• Mitigating Factors . 13
• Analysis . 20
• Result 21

Facts

[1] On 29 December 2021, Lawrence Davis went to a meeting. That meeting was in the back of an SUV in a residential neighbourhood in Windsor. The business of the meeting was to sell illegal firearms. In the course of that transaction, a dispute arose. That dispute turned into a gunfight. The front seat passenger was shot and killed. Mr. Davis was shot in the shoulder.

[2] Following a police investigation, Mr. Davis was charged with several offences. On 23 October 2023, he entered guilty pleas to the following counts:

1. Breaching a release order by possessing weapons;
2. Possessing a firearm while prohibited;
3. Transferring a firearm without authorization; and
4. Possessing a loaded, prohibited firearm.

[3] Over the course of the following 18 months, I received extensive sentencing submissions and supplemental materials. These are my reasons for sentence.

[4] The parties filed an agreed statement of facts in this matter. It was marked as Exhibit 1.

[5] The Offender Mr. Davis met with two people on the night of 29 December. He got into their vehicle, a BMW SUV in a parking lot near the intersection of Tecumseh Road East and Forest Glade Drive. He sat in the back driver’s side seat. Philip Archer was in the driver’s seat and Patrick Vincente Sandy was in the front passenger seat.

[6] Archer drove from Tecumseh Road onto Forest Glade Drive. The Offender handed a shoe box to Vincente Sandy. Inside were three handguns: a Taurus 9mm, an SCCY 9mm, and a Glock .40 caliber. The Glock was loaded with 15 rounds of ammunition.

[7] A dispute erupted between the parties. This led to Vincente Sandy pointing the Glock at the Offender and the Offender producing and pointing his own 9mm pistol at him. Within the confines of the vehicle, they fired at each other. Vincente Sandy fired three rounds, one of which struck the Offender in the shoulder. The Offender fired four rounds, three of which struck Vincente Sandy. One struck him in the back, one in his arm and chest, and one in his head.

[8] Archer stopped the vehicle and fled. Davis also left the vehicle, having to crawl into the front seat to do so as the child locks had been activated and the rear doors could not be opened. He left the scene.

[9] Archer returned and resumed driving. He called 911 for help. He met with EMS near the corner of Forest Glade Drive and Wildwood Drive. Vincente Sandy was taken to hospital but died from his injuries.

[10] In the vehicle, police found the three handguns and a large quantity of money in the front of the vehicle. They also found a cell phone in the rear of the vehicle. Attached to this phone was a prescription bearing the Offender’s name. Police went to the Offender’s residence and placed him under arrest. He was himself taken to hospital for treatment of his shoulder wound.

[11] It is important to note the Crown’s concession that they are not able to disprove a claim of self-defence in this case. As a result, the Offender is sentenced today only for his role in the transaction and related breaches. He is not being sentenced for causing the death of Patrick Vincente Sandy.

Positions of the Parties

[12] The Crown seeks a global sentence of ten years with credit for presentence custody, together with various ancillary orders. That sentence would be broken down as follows: five years for firearm trafficking, three years for possessing a loaded prohibited firearm, 18 months for possessing a firearm while prohibited, and 6 months for breaching a release order. All sentences, the Crown submits, should be consecutive. Counsel for the Offender argues the presentence custody of 1,065 days, enhanced to 1,598 days, is sufficient for all but the possession while prohibited. On that count, counsel seeks a further 120 days. The ancillary orders are not disputed.

The Presentence Reports

[13] I have been provided with two Presentence Reports. One was a traditional report prepared by Probation officer Kristen Merritt (hereinafter “the PSR”). The other is an enhanced presentence report prepared by Leah Kay of the Sentencing and Parole Project (hereinafter “the EPSR”). This report is focused on the Offender’s racial heritage and background. Together, the reports provide valuable detail and insight into the Offender’s past, present, and future.

The PSR

[14] The Offender was primarily raised by his mother as his American father left the family and returned to the United States when the Offender was 12 years old. He and his half-sister remained with their mother. The Offender said he hated his father for years afterwards but has since reestablished contact with him.

[15] His upbringing was largely positive. He said his mother excelled at being a single parent and took good care of him and his sister. He became “the man of the house” after his father left but soon had a good relationship with his mother’s new partner. His education was also successful, with the Offender completing grade school and high school up to grade 11. His studies were disrupted in 2015 and while he has tried since then to complete high school, he has not yet obtained his diploma.

[16] As a teen, the Offender worked in retail, in landscaping, and in a factory. He was also an avid football player. The PSR noted he changed high schools at one point to pursue a better football program.

[17] His education and athletic pursuits were derailed on 1 November 2015. On that day, the Offender was attacked by multiple assailants. He said they shouted racial slurs at him and that after the assault, they ran him over with a car. This caused numerous injuries, including a brain injury and two pelvic fractures. He was hospitalized for a week and used a wheelchair for a month. He missed a significant amount of school following the attack and could no longer play football. His attackers were never found.

[18] Beyond the physical injuries the Offender suffered, he also endured psychological trauma from the attack. He was diagnosed and medicated for post-traumatic stress disorder and major depressive disorder. He also stopped socializing with other members of the Black community. His mother and sister observed that this event changed the Offender’s personality. His mother said he experienced anger issues and was fearful of others. The lack of closure from his attackers never being found has added to the emotional and mental fallout he has experienced.

[19] In 2021, his dog was shot and killed by police. No other details were provided about this incident, but the Offender did tell Ms. Merritt that he was suicidal after this event and that he’d been off his medications at the time.

[20] On the issue of substance use, the PSR disclosed some concerns. He experimented with alcohol and cannabis marijuana in high school and was a daily user of marijuana prior to his incarceration. He also admitted times where he abused his prescription medication. Fortunately, the Offender has never used harder drugs like crystal methamphetamine or fentanyl. He has, however, struggled with a gambling addiction. He would like to receive counselling for this issue. In the PSR, his mother noted that the settlement money he received following his attack has all been spent.

[21] Overall, I find the PSR to reveal significant challenges, but also a desire by the Offender to deal with those challenges. He has the support of his family, and if his willingness to get the help he needs is sincere, he will be well-positioned to forge a new, positive path when he is released from custody.

[22] Following the preparation of the PSR, Ms. Merritt provided an addendum. She wrote that after completion of the report she’d been contacted by psychiatrist Dr. Sean Prabhu. Dr. Prabhu confirmed the Offender had been his patient but that he hadn’t been “for a few years now”. In fairness to the Offender, it’s not clear if he ceased being Dr. Prabhu’s patient of his own volition or if it was simply a consequence of his arrest in December 2021.

The EPSR

[23] In addition to the subject matter covered in the PSR, the EPSR provided further detail on the Offender’s history. It emphasized the impact his father’s departure had on him. He relied on his father for support and guidance as a child. His closeness with his father is demonstrated by his decision, at 10 years old, to change his name from Tyler Scott Davis to Lawrence Davis. Lawrence is his father’s name, and he wanted to honour him. When his father left to live with his other family in Detroit (of whom the Offender had no prior knowledge), the change was, in the words of his aunt, “beyond difficult”.

[24] It also noted that the Offender’s maternal grandfather was of Indigenous descent. No other details on this point were provided.

[25] The EPSR discussed the 2015 attack and its aftermath. The Offender told Ms. Kay that he became hostile and did not trust others following his assault. His family confirmed that information, noting how abusive he would be with his mother when he misused his medication or combined it with alcohol.

[26] After the attack, the Offender said he lost trust in the Black community because he felt they should have known who attacked him. He began spending time with other individuals who were involved in criminal activity. In the report, he acknowledged these new friends were a bad influence.

[27] Regarding substance use, the EPSR does not reveal any ongoing concerns. The Offender said he does not consume alcohol regularly, in part because he has seen its effects on his mother. His aunt and sister agree his mother is a functional alcoholic who now has significant health issues related to her liver.

[28] Following the assault, the Offender received a large financial settlement in 2019. Looking back, he does not see this as a positive event as he ended up squandering his money. He began gambling, as noted in the PSR. While he identifies gambling as a problem in his life, he also told Ms. Kay he was not concerned about it and could stop if it became a problem. This is in contrast to his words in the PSR, where he admitted he had an addiction and that feeding that addiction had sometimes led to criminal activity. He also told Ms. Merritt he wanted to address the problem and was open to counselling for it.

[29] He recounted his educational history to Ms. Kay. He began his high school career at Riverside Secondary School and moved to W.F. Herman Academy in grade 11. It appears the Offender was placed in the “applied” stream of courses at Riverside without being told of the potential limitations that stream could impose on his future plans. Still, he said he was well-liked and did well academically.

[30] The Offender feels that racism was to blame for no one being arrested following his assault. He said police did not believe him and assumed he was withholding information so as not to be a “snitch”. Since the attack, the Offender said he has been the subject of numerous arbitrary traffic stops and illegal searches. He said police have an aggressive attitude when dealing with him. He understands police have his file noted with, “dangerous person, suicide by cop”, which impacts how they deal with him. He did not explain how he knows of this notation.

[31] His concerns about racism and its effect on the investigation are echoed by his friend Cheyenne Emond. She also expressed that police do not take the Offender’s mental health or brain injury into account when interacting with him.

[32] Regarding the offences, the Offender admitted he should not have left his residence that night. The EPSR notes at page 9, “Lawrence disclosed that his restrictive bail conditions and criminal record prevented him from gaining legitimate employment; therefore, he engaged in the trafficking of firearms for financial gain.” He believed his depression and brain injury impacted his judgment when he decided to commit the offences.

[33] While in custody, the Offender said he has experienced “blatant racism (and) indirect racism” from inmates and staff. He also noted spending significant time in lockdowns and 22 days in segregation. He has attended several programs while in custody, and while he signed up for the African Canadian Excellence Program, he said it was never actually implemented.

[34] The EPSR noted the Offender was “straightforward, respectful, and confident” in discussing his circumstances. He said he wanted to relocate outside Ontario following his release from custody. Ms. Kay referred to various academic studies in suggesting he may have difficulty finding employment as a Black man with a criminal record and a disability. She recommended employment supports, counselling, and mentorship on the Offender’s release to maximize his chances of success.

The Principles of Sentencing

[35] The Criminal Code, together with appellate caselaw, has set out several factors a court must consider when imposing a sentence for the offences before me.

[36] Section 718 of the Criminal Code states the following:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[37] In crafting this section, Parliament has clearly set out the protection of society, respect for the law, and the maintenance of a just, peaceful, and safe society as the core purposes of sentencing. These goals are achieved with sanctions that follow the list of named objectives.

[38] Further, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must also be similar to sentences imposed in similar circumstances, and must not be unduly harsh or long when multiple consecutive sentences are imposed.

[39] When sentencing offenders for crimes related to handguns, the Supreme Court of Canada in R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878 referred with approval to the decision of Justice Molloy in R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.). At paragraphs 25–27 of that decision, Justice Molloy stated:

25 Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled - a way of life that respects the rule of law to ensure the peace and safety of those who live here.

26 It is because of the extreme danger of handguns and the senseless carnage and loss of life occasioned by their use that our courts have repeatedly emphasized the importance of denunciation and deterrence in sentencing for weapons offences. In R. v. Danvers, [2005] O.J. No. 3532 (C.A.), Armstrong J.A. stated (at para 78):

There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause of major concern in the community and must be addressed.

27 Also, in Danvers (at para 77), the Court of Appeal endorsed and adopted the comments of the trial judge, Ewaschuk J., as follows:

It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general, and more especially individual, the principles of denunciation and the protection of society. Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns. (Emphasis added)

[40] To these guiding principles, I would add the words of Justice Green in R. v. Spicher, 2020 ONCJ 340, [2020] O.J. No. 3251 (C.J.) at paragraph 75:

This sentence may seem harsh to Mr. Spicher and his family, but it is nowhere near as harsh as the death, harm and suffering that could have been caused to innocent victims of gun violence. Individuals who choose to put their own personal gain above the lives and safety of members of our community have to pay a heavy price so that the message is clear. Our courts will not countenance trafficking in these deadly weapons and the public will be protected by sentencing these offenders in a manner that reinforces this unwavering message.

[41] The parties are in agreement that the sentence for possessing a firearm while prohibited should be served consecutively to any other sentence I impose. This is consistent with the approach of the British Columbia Court of Appeal in R. v. Ball, 2014 BCCA 545 and many courts since, including R. v. Kabanga-Muanza, 2019 ONSC 1161, a case provided by the Crown.

Caselaw

[42] Both parties provided case briefs in this matter. As is generally the situation when dealing with sentencing, few cases are directly applicable. All, however, can provide guidance and general principles relevant to the issues at hand. Whether I refer to a specific case in my analysis or not, I have considered all cases filed by both counsel.

Crown cases

[43] In R. v. Elvira, 2018 ONSC 7008, the offender was convicted under s. 95(1) of illegally possessing a loaded firearm. In executing a search warrant on the offender’s residence, they discovered a loaded .38 calibre revolver and quantities of heroin and cocaine. The gun was in plain view and therefore accessible to anyone in the residence. In finding this case to be at the “true crime” end of the spectrum of s. 95 offences, Justice Schreck noted the general range of sentence to be three to five years. His Honour sentenced the offender to three years on the gun charge, noting that it was the first sentence of imprisonment and so should be kept as short as reasonably possible.

[44] R. v. Friesen, 2016 BCSC 1679 dealt with an offender engaged in the possession and export of various firearms, ammunition, and related devices. These devices included suppressors, and switches that could turn a semi-automatic firearm into a fully automatic firearm. Over the course of his business, Friesen sold items to agents of the U.S. government. On arrest, he was found at a family campsite with multiple automatic firearms, ammunition, magazines, suppressors, and switches. Notably, he was at the campsite with his partner and five-year-old son. Regarding the possession offences, the Court found seven years to be appropriate, with two years consecutive on related breach charges. All totalled, the Court imposed a ten-year sentence.

[45] In R. v. Harutyunyan, 2012 ONSC 58, Justice Benotto (as she then was) sentenced an offender who was stopped in a vehicle the police suspected was stolen. When he exited the vehicle at the side of a busy highway, a loaded firearm fell from his pants. Noting the grave danger to the public of a loaded firearm in a vehicle, Her Honour sentenced the offender to 4 years in custody.

[46] In Kabanga-Muanza, supra, the offender was convicted of several possession offences related to a loaded handgun found in his vehicle. He had endured a very unstable upbringing and was left with his brother to effectively fend for themselves when he was just 14. He fell into crime to support their basic needs. In sentencing the offender, Justice Spies noted at paragraph 101:

I do conclude however, that Mr. Kabanga had a loaded firearm out in the public in a vehicle that was being driven in the community, notwithstanding that he was subject to three court orders prohibiting him from possessing one. There was only one reason for having a firearm in his Vehicle and that was to be prepared for violent action.

[47] In the end, Her Honour sentenced the offender to 3 ½ years for the possession offences and 1 year consecutive for a breach under s. 117.01.

[48] The Spicher case, supra, saw Justice Green of this Court sentence an offender for four counts of unlawfully transferring firearms. He sold several weapons to an undercover police officer. He had a lengthy criminal record and minimized his responsibility. Following a detailed review of the sentencing caselaw related to weapons trafficking, Justice Green found the range of sentence for that offence to be 3-9 years’ custody. The global sentence imposed on Spicher was 6 years minus credit for presentence custody. I note these were otherwise legal firearms purchased legitimately by the offender. It was his subsequent sale of those firearms that led to his prosecution.

[49] Finally, the case of R. v. Ward-Jackson, 2018 ONSC 178 underlines the danger and potential tragedy inherent in firearms trafficking. In that case, the offender sold three handguns to Dellen Millard. Two of those guns were subsequently used in the notorious murders of Millard’s father Wayne, and the innocent stranger Tim Bosma. Further, there was evidence the offender knew at least one of the guns would be used in a crime as Millard told him it would be “dirty” when he was done with it. The offender told him not to worry as he could change “her print” to mask the gun’s use. Taking the principle of totality into consideration together with credit for presentence custody conditions, the Court sentenced the offender to 11 years in jail.

Defence cases

[50] The defence cases, provided but not referred to in argument, included R. v. Hussain, 2018 ONCA 147 where the Court of Appeal for Ontario affirmed a 4 ½ year sentence for the illegal transfer of a firearm. In the trial decision, the offender challenged the constitutionality of the mandatory minimum sentence for offences under s. 99(1).

[51] That section was also successfully challenged in R. v. Ball, 2019 ONSC 7162 and in R. v. Shobway, 2015 ONCJ 457. Finally, in R. v. C.L., 2012 ONCJ 413, the offender was convicted of firearms trafficking for offering to sell an undercover officer a handgun, despite that sale never actually taking place. Again, the mandatory minimum sentence was successfully challenged.

[52] On the issue of constitutionality of s. 99(2) (the sentencing provision), the parties are in agreement that the caselaw is consistent that the mandatory minimum sentence set out therein violates s. 12 of the Charter of Rights and Freedoms and is not saved by s. 1. Both agree that it should not affect my decision in this case. On the basis of counsels’ submissions and pursuant to the principle of judicial comity that encourages consistency among courts, I agree that the mandatory minimum sentence of three years’ custody for an offence under s. 99(1) is unconstitutional and of no force or effect in the present case.

[53] The remainder of the cases filed by the defence relate to the sentencing of Black offenders. While R. v. Morris, 2021 ONCA 680 has garnered the bulk of the attention on this point, it is not the only case to address the effect of racism in the criminal justice system. Counsel also points to R. v. Jackson, 2018 ONSC 2527 and R. v. Steed, 2021 NSSC 71. The overarching ratio in these cases is that courts must do a better job of recognizing and accounting for racism in criminal law and society in general. We do this by looking not only at the person and the offence before the court, but also at how they came to be in court in the first place. As Justice Nakatsuru told the offender in Jackson, supra, at paragraph 170:

I see the path that have lead you here. The road you took was not helped by being Black in a white world.

[54] In short, courts cannot ignore that we are all products of our environment. In some cases, that environment has provided nurture and advantage. In others, it has most certainly not. In appropriate cases, that difference must form part of the sentencing equation.

[55] That said, the principles in Morris and other cases do not mandate a judicial discount based on race. The more serious an offence, the more pressing is the need to protect society and impose meaningful sentences regardless of an offender’s background. I note that even in Jackson, supra, for the possession of one handgun with one round in it, Justice Nakatsuru still imposed a five-year sentence, with another year consecutive for breaching a weapons prohibition.

Aggravating Factors

[56] The aggravating factors in this case are obvious.

[57] It would be hard to understate the danger of the Offender’s actions. The danger he created is a significant aggravating factor.

[58] I remind myself not to use an element of the offence as an aggravating factor. While some level of public danger is inherent in the illegal sale of firearms, that danger is not an element of the offence of weapons trafficking. That is, the Crown does not need to prove the public’s safety was put at risk to obtain a conviction. I can, therefore, consider the danger created by these specific circumstances as aggravating.

[59] The danger is obvious and chilling. This transaction was not set for an empty industrial area in the middle of the night. It took place in a residential neighbourhood. The parties met at 7pm on a night shortly after Christmas, when families are out visiting and enjoying the holidays. It took place steps away from the Offender’s own residence. In the PSR he confirmed Forest Glade is “a good community”. In this good community, on a December evening, the Offender and other parties were driving around with multiple loaded handguns. The Offender’s plan was to sell three such guns to Vincente Sandy for financial gain. He placed not only himself and the other occupants of the vehicle in danger, but also every other person in that neighbourhood.

[60] Another layer of aggravation comes from the Offender being on bail at the time of the offences. He made the choice to meet with the others to sell these handguns while he was governed not just by any release order, but by an order that placed him under house arrest. He was not to leave his residence at any time unless he met certain narrow exceptions. None of those exceptions allowed him to meet with customers to sell guns. The order also prohibited him from possessing weapons.

[61] The public expects that when a person is released on bail they will follow the rules they are given. The Court expects the same. A defendant is presumed innocent while on bail, but when they are released from custody on conditions, that means the Crown has shown cause to the releasing court why restrictions on their liberty are necessary. Before a defendant is released, they are required to confirm they will abide by those conditions. Failing to do so disrespects the authority of the Court.

[62] As well, bail is granted on a ladder system. Defendants should be released first on the least onerous conditions available. As the allegations against them become more serious, the conditions may become more demanding. Likewise, if they have a record of criminal activity, the conditions of release may be more strict. In the present case, the Offender had been released on house arrest. He was on the most restrictive form of bail there is. The releasing court considered his circumstances and found it necessary to impose a near-absolute restriction on his liberty. That restriction held for one week.

[63] When the Offender chose to sell handguns, aside from being on bail, he was also bound by a weapons prohibition. This is another court order designed to prevent him from possessing weapons. These orders are not imposed randomly. According to the PSR, on 16 December 2020 the Offender was convicted of an offence under s. 88(1) of the Criminal Code. This offence relates to the possession of a weapon for a purpose dangerous to the public peace. As part of his sentence, a weapons prohibition under s. 109 was imposed. This is a mandatory weapons prohibition put in place by Parliament. It was entirely disregarded by the Offender.

[64] To be clear, the Offender being on bail and bound by a weapons prohibition are aggravating only on the charges of firearm possession and weapons trafficking. In this case, the possession of weapons is an element of the breach offences, and so cannot be considered aggravating features on those counts.

[65] I do, however, consider the fact that the Offender was in possession of multiple weapons, and that those weapons included loaded handguns, as aggravating features on all counts. His conduct goes above and beyond meeting the elements of any charged offence and is most certainly aggravating.

[66] The trafficking count is further aggravated by the fact that not only were they in a vehicle in public at the time of the transaction, but that vehicle was moving. As the Offender handed over the box of guns, as the dispute arose and the bullets started flying, the vehicle was driving through the neighbourhood. This expanded the risk to the public and endangered every person unlucky enough to be on their route. In submissions, counsel for the Offender argued that the Crown could not say if the vehicle was moving or stationary at the relevant time, but the agreed statement of facts is clear:

Upon hearing the shots being fired, Mr. Archer immediately stopped the BMW, and ran out of the driver’s door.

[67] It was agreed by all parties that at the time of the shooting, the vehicle was moving.

[68] While bound by two separate court orders not to possess weapons, the Offender tried to sell three handguns in a residential neighbourhood. The sale turned into a violent shootout in a moving vehicle that ended with the death of the buyer. It is hard to imagine a more aggravated example of these offences.

Mitigating Factors

[69] That is not to say the Offender is entirely without mitigating features.

[70] Without question, the Offender has had a difficult experience since his assault in 2015. It is not an excuse for his subsequent behaviour, but the assault and the physical and emotional toll it has taken on him provides important context. He suffers from the effects of a traumatic brain injury and mental health challenges. His life has moved in a direction he would likely have never expected before the attack.

[71] He enjoys strong support from his family. This will be crucial in the Offender rebuilding his life on his release from custody. Their support will help keep him on a positive path that does not lead to further offences. It impacts my assessment of the Offender’s risk to the public in the future and his risk of recidivism.

[72] His guilty pleas are also a mitigating feature in this case. He gave up his right to a trial on these matters and admitted responsibility. I recognize the plea agreement removed the most serious charge he was facing, and so in that sense was a favourable arrangement, but he has still admitted gravely serious charges. His acceptance of responsibility, both through his pleas and through his words spoken in court, provide mitigation.

Morris Features

[73] I have also considered the impact of racism on the Offender. I have the benefit of the EPSR and the submissions of counsel on this point. The caselaw provided is also helpful.

[74] The Morris decision states that there must be some connection between racism and mitigating circumstances. At paragraph 97 and onward, the Court stated:

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: see, e.g., L. (F.H.), at paras. 45-49; R. v. Elvira, 2018 ONSC 7008 (S.C.J.), at paras. 21-25; R. v. Ferguson, 2018 BCSC 1523, at paras. 126-129; and R. v. Biya, 2018 ONSC 6887 (S.C.J.), at para. 36, revd on other grounds 2021 ONCA 171.

Borde and Hamilton both described the connection between anti-Black racism and factors relevant to the determination of a fit sentence in broad terms. Similar language appears in Gladue and Ipeelee in respect of the relevance of "background and systemic factors". The evidence may be relevant to sentencing in more than one way.

The social context evidence may offer an explanation for the commission of the offence which mitigates the offender's personal responsibility and culpability for the offence. Mr. Morris's strong and ever-present fear of many people around him in his community, including the police, was offered as an explanation for his possession of a loaded gun. The information in both reports supported the inference that Mr. Morris's fears were real, justified and existed, in part, as a result of systemic racism that played a role in shaping his perception of his community, his relationship with others in the community, and his relationship with the police.

[75] In the present case, the Offender grew up in a predominantly white neighbourhood. He had several friends in the Black community who were pro-social and focused on athletics, just as the Offender was. He said he experienced a degree of racism, including times when neighbours would call the police to report him when he was walking around at night. Police would arrive and question him. He told Ms. Kay he took that racism “with a grain of salt”.

[76] The most impactful encounter with anti-Black racism came after his attack in 2015. He told Ms. Kay the assault was not investigated as police did not believe him when he said he had no memory of the incident or any idea why he was victimized. He said the police assumed he was withholding information. He remarked to Ms. Kay, “Maybe the police would have believed me and done a better investigation if I was white.” Their response to his assault led to his mistrust of police.

[77] He also recalled being tasered by police while hospitalized, though his memory of those events was blurry and he could provide no context for it.

[78] As I set out earlier, the Offender advised he has also been stopped by police numerous times while driving. He has been the subject of searches. All of this has led him to have a very negative view of police, who he says see him as dangerous.

[79] I am left with the difficult task of determining what connection, if any, exists between the racism experienced by the Offender and his moral blameworthiness for the offences before me. It is not necessary to show that the racism he has experienced caused the offences; it is the level of connection between that racism and his personal responsibility that matters.

[80] In the EPSR, the Offender spoke in some detail about his motivation for the offences. This is from page 9:

Lawrence reported that on December 22, 2021, he was released on house arrest for charges unrelated to the index offences. His bail conditions prohibited him from leaving his residence without his surety and possessing any weapons. One week later, Lawrence was involved in the index offences.

Lawrence reported that he understood the conditions of his release order and regretted his decision to leave his house on the evening to engage in the index offences. Lawrence disclosed that his restrictive bail conditions and criminal record prevented him from gaining legitimate employment; therefore, he engaged in the trafficking of firearms for financial gain. He did not consider the risks associated with firearms or their sale. He reflected: “In my eyes, I didn’t think anything could go wrong. I was only thinking about the outcome, which was money.” Lawrence recognizes that he acted in self-interest without foresight and regrets leaving his residence that evening.

Lawrence disclosed that his ongoing depression influenced his decision-making skills and contributed to his interactions with the criminal justice system. He believes that his judgment and cognitive processing are adversely impacted by his brain injury, which contributed to his involvement in the index offences.

[81] I take from his words to Ms. Kay that the Offender knew in advance that what he was doing was wrong. He was motivated by money. He said his bail and record prevented him from obtaining employment, but I note he’d only been on the bail order for a week at the time of these offences. He also spoke in the report of “witnessing the death of Mr. Sandy firsthand”. As the facts were presented, the Offender did not witness the death; he caused it. It is concerning that the Offender seems to be minimizing and externalizing responsibility for the offences.

[82] The Offender sees his mental health and cognitive difficulties as driving forces behind his offending. I have no difficulty accepting that. It is clear that after his attack, the Offender’s view of the world changed drastically. More than that, in addition to the effects of the attack, his experience of racism in the ensuing investigation added to the damage. In the years following, he has continued to experience random stops and searches he blames only on his race. His entire criminal record post-dates his attack and subsequent treatment by authorities. In my view, there is a connection to be drawn between the Offender’s experience of racism and his moral blameworthiness for the offences. It will be considered a mitigating factor on sentence.

[83] I will address another potentially mitigating factor, which is the delay in the preparation of the EPSR. The chronology of proceedings as they relate to the report are as follows:

1. 23 October 2023: pleas entered.
2. 3 November 2023: funding for EPSR confirmed.
3. 26 February 2024: intended writer of EPSR has left the office. The case needs to be re-assigned. Counsel told report will now be “expedited”.
4. 28 March 2024: Counsel told EPSR will now take 12 months. Counsel advises they no longer want the report given the delay.
5. 2 August 2024: submissions made on mandatory minimum sentence, evidence taken related to Duncan credit.
6. 11 October 2024: further evidence on Duncan credit. Counsel advised EPSR would now be available in January 2025 as the Offender is “up next”.
7. 13 March 2025: the EPSR was filed as an exhibit.

[84] From the time that funding for the EPSR was secured to its production to the Court, a total of 16 months elapsed. While other events took place in the interim, they did not impact the preparation of the report. Regardless of any submissions on mandatory minimum sentences or presentence credit, the report would still have taken nearly a year and a half. The final product is a 15-page report (though two pages are an appendix mostly related to a bibliography). It references the information in the PSR eight times, and the fitness assessment conducted on the Offender twice. By no means do I detract from the work of Ms. Kay, but I am drawn to the words of Justice Crerar in the case of R. v. Cade, 2024 BCJ No. 528 (S.C.). Referring to an EPSR as an IRCA (“Impact of Race and Culture Assessment”), His Honour stated at paragraphs 94-96:

94 A final note on the IRCA itself. While the IRCA provides a comprehensive and useful overview of Mr Cade's experiences of prejudicial treatment, as well as literature on the experience of Black individuals in Canada, its contents do not justify the eight month sentencing delay (it is granted that part of that delay can be attributed to the difficulty in coordinating the calendars of defence counsel). That delay runs contrary to the Supreme Court's criticism in R. v. Jordan, 2016 SCC 27 at para. 40 of the "culture of complacency towards delay" in the criminal justice system.

95 Messrs Cade and Ceal were convicted on June 21, 2023. Their sentencing was set down for November 14, 2023. Mr Ceal obtained and delivered his Gladue report early enough to retain that date. Ultimately, the November sentencing date had to be adjourned because of the IRCA delay. We are holding a special sitting during the designated Reading Week break of the Court, on my insistence, with special accommodations by the Prince George Courthouse staff, in order to hold the sentencing hearing within a year of the conviction of these two offenders. In proceedings where defence counsel brought not one but two Jordan applications based on delay, the delay inflicted by the IRCA was both ironic and unfortunate. In this, I share other Courts' observations about the utility of a IRCA in proportion to its delay, where social context information could be satisfactorily obtained from other sources, as expressed in cases such as R. v. Smith, 2019 BCSC 1152 at paras. 2-11 and R. v. Riley, 2019 NSSC 92 at para. 3.

96 The IRCA insights could largely have been provided by a properly qualified pre-sentence report author, read in combination with discussions of overt and systemic anti-Black racism discussed in such authorities as Ellis; Morris; R. v. Handule, 2023 BCSC 1031; R. v. Le, 2019 SCC 34 at paras. 89-97; R. v. Theriault, 2021 ONCA 517 at para. 212, leave to appeal to SCC ref'd, [2021] S.C.C.A. No. 362 (16 December 2021); R. v. Anderson, 2021 NSCA 62; and R. v. Parks, 15 OR (3d) 324 (CA) at 342, leave to appeal to SCC ref'd, [1993] SCCA No 481, all in combination with the liberality granted to defence counsel's submissions at a sentencing hearing.

[85] I agree with Justice Crerar’s comments and concerns. Requiring a Black offender to stay in custody for nearly a year and a half while waiting for a report meant to address the over-incarceration of Black offenders is darkly ironic and entirely unacceptable. This is all the more concerning when the information provided by the EPSR could just as easily (and far more quickly) have been provided by other sources.

[86] If these reports are going to be available to offenders and publicly funded, they need to be prepared in a timely manner. When they are not, as was the case here, the delay will be considered a mitigating factor on sentence.

Duncan Credit

[87] Evidence was called on the issue of presentence custody conditions. To that end, I heard from Staff Sergeant Jeremy Mortley of the Central North Correctional Centre, Staff Sergeant Peter Spourdalakis of the Southwest Detention Centre (SWDC), and Mohamad Dakhlallah of the Elgin-Middlesex Detention Centre (EMDC). I also received several exhibits outlining the nature of the Offender’s presentence custody related to cell assignments and lockdowns.

[88] Courts routinely give 1.5:1 credit for time spent in presentence custody. This reflects the often-harsh conditions borne by inmates who still enjoy the presumption of innocence. They receive less programming, and the time spent in custody does not count towards earned remission on sentence. This credit, provided for in s. 719(3) and (3.1) of the Criminal Code, is commonly called “Summers credit” after the Supreme Court of Canada’s decision in R. v. Summers, 2014 SCC 26, 308 C.C.C. (3d) 471.

[89] There will be times, however, when presentence conditions warrant more than Summers compensation. When these conditions are particularly difficult to endure, additional mitigation can be given. Support for this notion comes from the Court of Appeal for Ontario’s endorsement in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (C.A.). What has become known as Duncan credit should not be set at a defined number of days or months. It is a mitigating factor. Quantifying it risks overemphasizing it in relation to other mitigating factors, like remorse or rehabilitative prospects (see: R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757 (C.A.)). It is a feature that, together with all aggravating and mitigating factors, can impact a sentencing court’s ultimate determination.

[90] Some of the considerations courts can take into account in assessing Duncan credit are the number and duration of lockdowns at a given facility, or the number of times an inmate is “triple bunked”, i.e. where three inmates are housed in a cell meant for two, leading to one inmate sleeping on a mattress on the floor.

[91] Staff Sergeant Mortley testified that while the Offender was housed at Central North Correctional Centre, at no point was he triple bunked or placed in segregation. He did not have any records related to lockdowns. His examination was paused for him to retrieve those documents, but he was never recalled to the witness stand and no documents were provided.

[92] Staff Sergeant Spourdalakis confirmed the information found in the documents filed in relation to the SWDC. The Offender was housed at that facility for a total of 803 days. For 523 of those days, he was triple bunked. According to the records, the Offender was assigned the floor mattress on some of these days. Staff Sgt. Spourdalakis testified, however, that inmates would often reach their own arrangement in the cell and the assignment on paper wasn’t necessarily what took place in reality.

[93] While at the SWDC, the Offender experienced a total of 109 lockdowns. This is in addition to the usual lockdowns from 10pm to 7am, and from 12pm to 1pm. These additional lockdowns could arise from staffing shortages, the discovery of contraband, or the need to move prisoners to court or within the facility. They could be facility-wide or only related to a single unit. Here, the Offender experienced 45 institutional lockdowns and 64 unit lockdowns. According to the records, the majority (77) were related to insufficient staffing. Staff Sgt. Spourdalakis testified that while inmates are confined to their cells during a lockdown, it would be rare for the SWDC to cancel access to showers, or to family or lawyer visits.

[94] Finally, he confirmed the Offender spent a total of 22 days in segregation. He was unable to advise the reason for this but noted segregation could be used as a punitive measure, for health reasons, or to address other concerns. The summary provided by counsel concedes that inmates in segregation are offered showers, time out of cell which could include recreation, movies, and time in the yard, and phone calls.

[95] Mohamad Dakhlallah referred to the contents of the letter from Nicole Van Dooren, Deputy Superintendent of Security and Compliance of the EMDC. The letter, made an exhibit, states the Offender spent no time in segregation at EMDC, and that from 17 February 2023 to 2 August 2024, the Offender spent just one night triple bunked.

[96] I note that the records I have extend only to 2 August 2024. Nothing was provided and no evidence was called regarding his presentence custody conditions after that date. Obviously, I can only consider credit on the basis of information I have been given. I cannot presume unusually harsh conditions from August 2024 to present.

[97] When the Offender first went into custody in December 2021, the SWDC was still dealing with the Covid-19 pandemic. On entry to the facility, it appears the Offender spent from 31 December to 7 January in a single bed. From 8-22 January 2022, he was in segregation. I would expect at least some of that was related to the policy of quarantining new arrivals to the facility. I can take judicial notice of the fact that custody during the pandemic was often even more difficult than usual, and that inmates were subject to more frequent disruptions of their daily activities.

[98] Overall, I find I can consider the Offender’s experience in presentence custody as a mitigating factor. I decline to assess a given number of days or months attributable to it, but it will be weighed alongside the other mitigating factors present in this case.

Analysis

[99] This is not an easy sentence to determine. The offences are gravely serious and must be denounced and deterred in the strongest possible terms. Conversely, the Offender is a young man who seems now to understand the mistake he made. It is tragic that he learned this lesson at the cost of a human life.

[100] Gun crime is nothing less than a plague on Canadian society. According to Statistics Canada, police reported 14,000 incidents of firearm-related violent crime in 2022. That represented a 10% increase over 2021. Since 2016, firearms have been the most common tool of homicide, and in 2023 handguns were used in 56% of firearm homicides. Further, the use of handguns in violent crime in general is up 50% since 2013 (see: https://www150.statcan.gc.ca/n1/daily-quotidien/241211/dq241211a-eng.htm and https://www150.statcan.gc.ca/n1/pub/85-002-x/2024001/article/00001-eng.htm).

[101] In the present case, while on bail and a weapons prohibition, the Offender chose not only to carry a loaded firearm but to sell three others. He told the PSR author that his bail was too restrictive for him to find work. Respectfully, he’d been on bail for a week, and that week was over Christmas. There’s no evidence he even tried to find legal employment. Instead, within a week of his release from custody, he had inventory, a willing customer, and an $8,000 deal in place. The illegal sale of handguns was not the only business he had available to him. It was a business he chose in violation of two court orders and of the trust of his aunt and surety.

[102] The caselaw is clear and consistent on the potential danger posed by the illegal possession and transfer of firearms. In this case, however, the danger ceased to be potential. The worry seen in other cases came to fruition in this case. Over the course of illegally dealing with handguns, shots were fired in a suburban neighbourhood and a person was killed. A criminal enterprise quickly became a violent shootout. This incident strikes at the very heart of public safety and the security of our communities. I must impose an exemplary sentence. As stated by Justice Green in Spicher, supra at paragraph 34:

The only guaranteed way to prevent gun violence is to cut off the supply of guns. One of the means to accomplish this worthy goal is to consistently sentence gun traffickers to exemplary custodial sentences so that the potential profit from selling guns is greatly outweighed by the personal assumption of risk for the traffickers of losing their liberty for substantial periods of time.

[103] I cannot, and do not, ignore the mitigating features present in this case. I have set them out in detail, and they inform my decision. The sentence I impose must not be crushing, and it must take into account the potential for rehabilitation the Offender has shown.

[104] Nevertheless, my primary focus must be on the protection of society. Gun traffickers need to know that their business comes with the risk of lengthy penitentiary sentences. Rehabilitation and reintegration must be subordinate to denunciation and deterrence.

[105] The actions of the Offender attack public safety from multiple angles. He did not hesitate to violate court orders, disrespecting the authority of the justice system. He armed himself with a handgun when he left his residence on 29 December, endangering anyone who may have crossed his path. He carried with him a box containing three more handguns, one loaded with 15 rounds of ammunition. They were not being transported in a gun safe or with trigger locks; they were in a shoe box. He got in a vehicle for a pre-arranged meeting where he planned to sell the shoe box of guns for $8,000. As they drove through a quiet residential neighbourhood, a dispute arose and a shootout took place. That shootout ended when one of the shooters was dead.

Result

[106] The Offender has been in custody for a total of 1,065 days. Enhancing that custody at a rate of 1.5:1 leads to effective presentence custody of 1,598 days. This translates to 4 years, four months, and 15 days.

[107] Applying the principles set out in the Criminal Code and the relevant caselaw, and balancing the protection of society with the rehabilitation and cultural background of the Offender, I have determined that a total sentence of 7 years is appropriate. Presentence custody will be deducted from that period, leaving 2 years, 7 months, 15 days left to serve.

[108] The Offender will be sentenced as follows:

1. Count 6, transferring firearms: six years
2. Count 16, possessing loaded firearm: 3 years concurrent
3. Count 5, possession while prohibited: 1 year consecutive to count 6
4. Count 3, breach of a release order: 6 months concurrent to count 5

[109] Presentence custody as noted above will be deducted from counts 6 and 16. This credit will satisfy count 16. The Offender will therefore have one year, seven months, and 15 days left to serve on count 6, and one year consecutive to that on counts 3 and 5.

[110] In addition, there will be a s. 109 weapons prohibition on counts 6 and 16 for life.

[111] As the Offender is already on the national DNA databank, I will decline to make a DNA order in this case.

[112] All firearms recovered in this matter will be forfeited to His Majesty the King. I will sign an appropriate order when it is provided by the Crown.

[113] Given the custodial sentence, I will waive the victim surcharges that would otherwise be payable.

[114] I do not impose this sentence lightly. I wish the Offender every success in the future. When asked if he had anything to say to me directly, he said he deeply regretted his actions and that he is committed to making real changes. He wants to see this event as a turning point in his life. I hope that it is.

Released: 22 April 2025
Signed: Justice S. G. Pratt