ONTARIO COURT OF JUSTICE
DATE: 2025-01-31
COURT FILE No.: Toronto 23-48103804
BETWEEN:
His Majesty the King
— AND —
Joshua Warrington-Johnson
Before Justice David S. Rose
Heard on September 3, 2024 and January 8, 2025
Reasons for Judgment released on January 31, 2025
Mr. C. Brannagan — counsel for the Crown
Mr. C. Levien — counsel for the accused Joshua Warrington-Johnson
Reasons for Judgment
Rose J.:
[1] Mr. Warrington-Johnson pleaded guilty to the charge of possession of a prohibited Taurus .45 caliber semi-automatic handgun on April 17, 2023 contrary to s. 95(1) of the Criminal Code. These are reasons for sentence.
Facts
[2] Mr. Warrington-Johnson’s case came out of a larger investigation into a street gang operating in the area of Jane and Finch Avenue in the northwest part of the city. It was called Project Wildcat. Mark Cummings was one of the main targets of Project Wildcat. His private communications were intercepted as part of the investigation.
Intercepts
[3] The interceptions captured Mr. Warrington-Johnson speaking with Mr. Cummings on March 18, 2023 at 1:32 pm. In that call Mr. Warrington-Johnson asked Mr. Cummings where his gun was, to which Mr. Warrington-Johnson commented on the fact that Mr. Cummings had no gun. Mr. Cummings commented on the fact that Mr. Warrington-Johnson was looking for “teeth,” meaning ammunition.
[4] The next day Mr. Warrington-Johnson was heard on another call with Mr. Cummings, telling him that he didn’t have a firearm because his brother was using it right now. On the basis of that intercept Mr. Warrington-Johnson was sharing his gun with others.
[5] On April 24 Mr. Warrington-Johnson was intercepted speaking with Mr. Cummings about a shooting in the neighbourhood. Mr. Warrington-Johnson talked about how he was stopped by the police in his tow truck on the way home. The police told him there was a victim. He told the police that he knew nothing about gang members “mandem” getting shot. In that call Mr. Warrington-Johnson explained to Mr. Cummings that when he was speaking to the police he had a “blicky,” meaning firearm, in his waist and the police did not know. Mr. Warrington-Johnson joked to Mr. Cummings that the police inadvertently gave him information that the shooting was at 18 Driftwood. The two men discussed possible motives for the shooting involving a street gang. Mr. Cummings told Mr. Warrington-Johnson that he needed an in-person meeting because of too much “chatter” on the phone. Later in the call Mr. Warrington-Johnson said to Mr. Cummings half-heartedly “let’s just slide to the opp block right now [i.e., opposing gang territory]. You don’t even know you just gave me a drop.”
[6] The intercept on April 24 therefore has Mr. Warrington-Johnson raising the idea of a retaliatory hit against a rival gang.
Seizure
[7] The police used the intercepts, and other information, to identify Mr. Warrington-Johnson’s phone number and address. By that point they knew him to be a tow truck driver who routinely monitored police communications on a scanner. Mr. Warrington-Johnson’s address was confirmed from multiple sources to be Unit 103 – 2750 Jane Street, a unit he shared with Valerie Johnson. Further investigation confirmed that Mr. Warrington-Johnson entered that unit, and used a 2022 White Elantra, and a 2019 GMC Sierra tow truck.
[8] A search warrant was executed on April 27, 2023 at 9:41 am. That warrant yielded the following:
i) A loaded Taurus .45 cal. semi-automatic handgun in his bedroom. The gun had 7 rounds.
ii) Several personal identifiers in that room including a student ID card, bank card and mail from Canada Revenue Agency;
iii) A box of Blazer Brass .45 cal ammunition. That box had 16 additional rounds of .45 cal ammunition;
iv) One round of .45 cal ammunition on the floor of the passenger seat area of the 2019 GMC Sierra;
v) Mr. Warrington-Johnson’s passport in the rear seat of the Sierra.
Other evidence
[9] The Taurus 9mm handgun was functional as a semi-automatic weapon. It uses conventional ammunition. It tested as a prohibited firearm under s. 84 of the Code. The ammunition found in the Sierra was suitable for use in the Taurus and successfully test fired. Mr. Warrington-Johnson has no registration certificate for the gun and he is not a holder of a Firearms Acquisition certificate. A photograph entered into evidence captured the closet in which the gun was located in Mr. Warrington-Johnson’s bedroom. It was at the bottom of a laundry hamper.
[10] The Crown led evidence at sentencing about the shooting on April 24, 2023. Toronto Police posted on social media at 8:24 pm that night about a confirmed shooting at Jane St. and Yorkwoods Gate. A man was located with a gunshot wound. He was taken to hospital with injuries. A new report from the same incident said that the victim was 22 years old. He was shot after a sedan with 3 people left the car and fired at him. The victim was shot in the leg, and his injuries were serious but non-life threatening.
[11] The intercept from April 24 between Mr. Warrington-Johnson and Mr. Cummings appears to be about that very shooting.
[12] The Crown also led evidence at sentencing about the prevalence of shootings and firearm discharges in Toronto. Toronto Police Service data has the number of shootings in the city falling from 406 shootings and firearm discharges in 2020 to 258 in 2023, but the number rises dramatically in 2024 to 375. The number of persons killed or injured by shooting is between 5 and 10 per month in 2024 totalling 132 for the year 2024 until October 21, 2024. There appears to be a correlation between the number of shootings and firearm discharges and the number of persons killed or injured by shooting. This is not surprising. The total number of killed or injured by gun was 191 in 2020, falling to 132 in 2023. The number of victims therefore appears to be increasing in 2024.
[13] The TPS data confirm my experience as a trial judge in Toronto that there is a serious plague of gun violence in the city. There is a broad consensus in the city that we have a gun problem in Toronto.
Mr. Warrington-Johnson
[14] A pre-sentence report (PSR) discloses Mr. Warrington-Johnson to be 29 years old. He was raised by his mother, with whom he is close. His father left the family when Mr. Warrington-Johnson was born, which left Mr. Warrington-Johnson estranged from his father for some time, but now bonding over a mutual interest in the trucking industry. Mr. Warrington-Johnson Sr. is supportive of his son despite this case.
[15] Mr. Warrington-Johnson grew up in the Jane and Finch area of Toronto, which he describes as a rough area. The sound of guns being fired was common, as was violence. Mr. Warrington-Johnson has positive roots in the community. He was involved in a local boys and girls club. He has a positive role model in a local social worker Wayne Black.
[16] Mr. Warrington-Johnson disclosed that many of his friends from growing up are either in jail or deceased. Funerals are a common occurrence. Going to school was “scary at times.” He was once run down by a guy with a gun. His community is not safe. Despite knowing persons involved in criminal activity Mr. Warrington-Johnson is not himself involved in criminal activity and does not belong to any street gang.
[17] Mr. Warrington-Johnson is single and has two children, both sons. One is 6, and one 5. The eldest has autism and requires significant assistance. He pays $500 a month in child support. His older brother describes him as having a “father mindset” which confirms the PSR writer’s opinion that he is a good father who cares for his children.
[18] Mr. Warrington-Johnson has support in the community. Wayne Black, a social worker in the Jane and Finch community wrote a letter on behalf of Mr. Warrington-Johnson. He describes Mr. Warrington-Johnson as “…very progressive and always trying to make his life better.” But Mr. Black’s letter advocates for something which I struggle with, namely “Joshua is not committing crimes with a gun; I’ve known him for almost 20 years. Joshua like most in that community is trying to protect himself from the element of surprise like a lot of youth in the community.”
[19] I cannot accept that illegal possession of a loaded gun is required to live out a peacefully in the community. Having a gun for protection from others contorts the term protection because it is the rest of the community which requires protection. I would not normalize illicit possession of handguns. They are designed to inflict grievous harm and all too often do, as the data shows. The protection is for those facing the muzzle, not those pointing it, see R. v. Jama, 2018 ONSC 1252.
[20] Mr. Warrington-Johnson worked as a truck driver recently, and sees his future as a truck driver. He has now completed a truck training course.
[21] Mr. Warrington-Johnson is a high school graduate and attended college.
[22] Mr. Warrington-Johnson has been employed since he was 16. He has been a tow truck driver for the last 5 years but is now at risk to lose his licence because of this conviction.
[23] There are no reported substance abuse issues.
[24] Mr. Warrington-Johnson accepts responsibility for this charge. He told the PSR writer that having this gun was a “dumb mistake” and that it has ruined his life, resulted in him losing his job and jeopardizing his ability to work in the future. He said that he had the gun for safety concerns in the community. He had the pistol because “people are getting killed for no reason” and “he has children who need him.”
[25] The PSR concludes that Mr. Warrington-Johnson has much going for him. He is a loving father, and is well situated in his family. He has no previous criminal record. With that said, the PSR highlights his risk of re-offending as: access to firearms; poor decision making; he is a follower in a social milieu with many negative influences. He has children, one of which is high needs. He is clearly a caring father. In his comments to me at the sentencing hearing he struck me as intelligent, articulate and remorseful. He spoke genuinely about his care for his mother and children.
[26] Mr. Warrington-Johnson has one day of pre-sentence custody. I would credit this as 2 days.
Sentencing positions
[27] The Crown seeks a sentence of 3 years in penitentiary, and s. 109 1(b) and 1(c) for life, s. 491 weapons forfeiture, DNA on secondary.
[28] The Defence seeks a sentence of conditional sentence of 2 years less a day. No objection to the ancillary orders.
Legal Framework
[29] The range of sentence for gun cases under s. 95(1) of the Code must start with R. v. Nur, 2013 ONCA 677, aff’d 2015 SCC 15. Nur involved the seizure of a loaded .22 caliber semi-automatic handgun with an oversized magazine. Mr. Nur had thrown the gun under a parked car where it was seized after a brief foot chase. When Nur was before the Court s. 95(1) carried a maximum 10 year sentence. Since the Information was laid against Mr. Warrington-Johnson Parliament increased the maximum sentence for s. 95(1) sentences to 14 years as result of passage of Bill C-21 on December 15, 2023. While Mr. Warrington-Johnson is not exposed to the 14 year maximum penalty currently in place for s. 95(1) I find that Parliament has increased the penalty because of the increase in gun crime.
[30] In Nur, the Court of Appeal found that s. 95(1) offences required a finding by the trial court on where the offence lies on a spectrum between true crime on one hand, and misconduct of a regulatory nature on the other, see Nur (supra) at para. 51. In this case the facts are easily at the true crime end of the spectrum. Mr. Warrington-Johnson was captured on intercepts talking about gang related activity, lending his gun out to others, driving with the gun in a car while talking to the police about a shooting and possible retaliation against another gang. All the hallmarks of true crime are present in this case.
[31] The Court in Nur (supra) at para. 206 found that sentencing possession of a firearm under s. 95(1) in circumstances of true crime must emphasize denunciation and deterrence. A 40 month sentence was upheld in Nur, but in the context of the constitutional challenge to the then 3 year mandatory minimum sentence under s. 95 of the Code, Doherty JA said:
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.
[32] Authority for a range of sentence of 3 – 5 years is plentiful, see R. v. Mohiadin, 2021 ONCA 122, R. v. Morris, 2021 ONCA 680 at para 177, R. v. Mahamet-Zene, 2018 ONSC 1050, R. v. Serrano, 2018 ONSC 6785, and R. v. Thavakularatnam, 2018 ONSC 2380.
[33] There are some cases where a conditional sentence is appropriate. Mr. Levien brought several to my attention: R. v. Hill, 2023 ONCJ 357 where an indigenous offender received a conditional sentence of 2 years less a day. In that case Justice Burstein found (at para. 13) that the offence did not fall in the true crime end of the spectrum. A similar finding was made by O’Donnell J. in R. v. Carter, 2021 ONCJ 561 at para. 23. There are other recent sentencing decisions by trial courts which impose conditional sentences of imprisonment where the s. 95(1) case falls in the true crime end of the spectrum, see R. v. Stewart, 2024 ONSC 281, R. v. Edwards, 2023 ONCJ 53, R. v. Beharry, 2022 ONSC 4370. My review of Stewart, Edwards and Beharry leads me to find that those offenders' background and experience as victims of racism was a significant mitigating factor in sentence. I therefore recognize, while the range of sentences is commonly understood to be 3 – 5 years (see Beharry (supra) at para. 31), some trial courts have imposed conditional sentences in similar circumstances. Sentencing ranges are guidelines only, and do not detract from the principle that imposing sentence is an individualized exercise.
[34] I find the mitigating circumstances to be:
- The guilty plea. Mr. Warrington-Johnson accepted responsibility for the offences. He saved the Court the expense of a trial. With that said this is not an early plea. Mr. Warrington-Johnson pleaded guilty on the first day of this scheduled trial before any evidence was called. Based on the evidence at this proceeding the Crown had a strong case;
- It is mitigating that Mr. Warrington-Johnson has a supportive family. His mother was in Court during the proceedings;
- Mr. Warrington-Johnson has support in the community;
- Mr. Warrington-Johnson has excellent prospects for rehabilitation. He is hard working, and has been working toward a career which is stable and pays well;
- He is a good father who is supportive of his children, one of which is high needs;
- He has no criminal record.
[35] The aggravating circumstances are:
- There is a serious gun plague in Toronto. The evidence at sentencing is that the number of shootings is on the rise, and with that a commensurate increase in the number of dead or wounded shooting victims. I agree with Akhtar J.’s comments in R. v. McNichols, 2020 ONSC 6499 at para. 38:
… the unauthorised possession of firearms is a blight on this city that causes immeasurable pain and misery to all sectors of society. Those who lose loved ones or see them seriously injured suffer the traumatic effects for a lifetime.
- The gun was loaded and easily available. It was a .45 caliber semi-automatic handgun which delivers lethal force. The gun seized was designed to inflict serious or lethal harm on an individual.
- Ammunition was located in Mr. Warrington-Johnson’s tow truck. The evidence in this case establishes a street gang connection between Mr. Warrington-Johnson and Mr. Cummings but his occupation as a tow truck driver puts him in an industry which has been beset by extreme violence in Toronto. Mr. Levien submits that Mr. Warrington-Johnson has no connection with corrupt tow trucking. I accept this, and so reduce the effect of this to some extent.
- Most significantly the intercepts from March 18, 2023 have Mr. Warrington-Johnson talking about seeking .45 cal ammunition. He was lending out his gun and admitted on the intercepts that he was driving with a gun in his waist belt as he spoke with a police officer on April 24. This was at a location where there had been a shooting that day. He seemed to think there was some humour to this. Intercepts also record Mr. Warrington-Johnson raising the idea of retaliation with Mr. Cummings for the April 24 shooting. This case is about a gun seizure against the backdrop of street gang activity and a shooting by a rival gang.
- The moral responsibility in this case is high. Mr. Warrington-Johnson knew that he was in possession of a loaded firearm and that he had no lawful business to do so.
- It is aggravating that Warrington-Johnson had the gun for his own safety. He told the PSR writer that. That kind of approach to firearms simply perpetuates the cycle of violence and harm.
[36] I disagree with the submission that the violence in Mr. WJ’s neighbourhood furnishes some form of explanation for this offence which mitigates the sentence. To the extent that violence in a community causes people such as WJ to carry a handgun it reinforces the siege mentality which is a significant part of the plague. I disagree with Mr. Black’s comments. Mr. WJ was heard on the wires participating with Mr. Cummings as a gang insider if not a member. The wires amply support a finding that Mr. WJ was lending his gun out to others, joking with a gang member about who had a gun and driving around a crime scene with a concealed handgun, and most concerning raising the spectre of a retaliatory action against the perceived perpetrators of the April 24, 2023 shooting. The cycle of gun violence must end and punishing illegal possession of loaded handguns is one of the ways to do that.
[37] Based on the foregoing I find that the predominant principles of sentencing in this case are deterrence and denunciation. Rehabilitation plays a role but it must take lesser importance than deterrence and denunciation. Having reflected on the defence submission for a conditional sentence I would not accept that an appropriate sentence is less than 2 years in jail. Rather, the many aggravating factors bring this case into the penitentiary range. A sentence of less than two years would not be proportionate in this case.
[38] The challenge in this case is balancing all that Mr. Warrington-Johnson has going for him with the severity of this offence. On reflection a sentence of less than 2 years would be disproportionate to what happened here. This calls for a penitentiary sentence.
[39] The appropriate sentence is:
- 2 years 8 months in jail (or 970 days less 2 days of presentence custody). The net sentence is 968 days in jail.
- Lifetime weapons prohibition under s. 109;
- Because of the duration of the jail sentence the victim fine surcharge is waived;
- The firearm and ammunition are ordered seized;
- This is a secondary designated offence under the DNA Identification Act. It is in the best interests of the administration of justice that he supply a sample of his DNA given the facts of the offence.
Released: January 31, 2025
Signed: Justice D. Rose