ONTARIO COURT OF JUSTICE
DATE: 2025-02-13
Location: Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARLON JOHNSON
Before Justice R.M. Robinson
Heard on 15 January 2025
Reasons for Judgment released on 13 February 2025
Kevin Stewart — counsel for the Crown
Janelle Belton — counsel for Marlon Johnson
INTRODUCTION
[1] On 27 September 2024, I found Marlon Johnson guilty after trial of possession of a loaded prohibited firearm (s.95(1) CC), possession of a prohibited firearm knowing its possession is unauthorized (s.92(1) CC), and possession of a firearm contrary to a prohibition order (s.117.01(1) CC).
[2] On 15 January 2025, counsel provided me with sentencing submissions, accompanied by supporting materials and case law.
THE OFFENCES
[3] In the early morning hours of 20 October 2022, Jide Animashaun and Marlon Johnson left the 2020 Lounge and got into Mr. Animashaun’s Mercedes. As the Mercedes being driven by Mr. Animashaun travelled south on Weston Road toward Highway 7, a vehicle pulled up on the passenger side and its occupant(s) opened fire.
[4] Mr. Animashaun suffered a gunshot wound to his right wrist and hand. Mr. Johnson was shot in his right shoulder.
[5] Mr. Animashaun and Mr. Johnson fled the now disabled Mercedes on foot, called 9-1-1 and awaited the arrival of first responders. They were transported to the hospital for treatment.
[6] A number of hours later, informed by security video footage in the area of the shooting, police officers located a loaded Smith & Wesson M&P Bodyguard 380 handgun that Mr. Johnson had discarded in a grassy area before the arrival of first responders.
[7] Both Mr. Animashaun and Mr. Johnson were arrested and charged with respect to the prohibited firearm. At the time, Mr. Johnson was subject to a weapons prohibition order made on 17 April 2019. After a trial that included various Charter applications, I found Mr. Animashaun not guilty and Mr. Johnson guilty.
THE OFFENDER
[8] Mr. Johnson is a 30 year old Black male, who was 28 at the time of the offence.
[9] He has a criminal record: on 17 April 2019, he was convicted of break and enter and sentenced to a six-month conditional sentence followed by 12 months of probation.
[10] Mr. Johnson grew up in the troubled Mount Olive neighbourhood with his mother and two sisters. He recalls the area having a heavy gang presence with frequent shootings. He is familiar with people from the neighbourhood who have been injured or killed by gun violence. This backdrop instilled in Mr. Johnson a sense of anxiety regarding his safety.
[11] Mr. Johnson’s mother worked at various jobs to support her family, but it was not sufficient to allow the family to overcome poverty. However, this changed when Mr. Johnson turned 17, when his mother started a clothing business and moved the family to a safer neighbourhood in Brampton.
[12] Despite relocating to Brampton, Mr. Johnson’s environment during his formative years left him with a strong distrust for the criminal justice system, limited financial opportunities and an underlying concern for his safety. Counsel for Mr. Johnson submits that these complex factors contributed toward Mr. Johnson’s decision to arm himself.
[13] Mr. Johnson has been in a relationship with Serenity Nichol for three years. They are parents to a daughter who is eight months old. Ms. Nichol submitted a reference letter describing Mr. Johnson as a caring and attentive partner and father.
[14] Similarly, letters were submitted by Mr. Johnson’s mother Gillianne Fuller, his sister Crystal Bishop and his other sister Shanyece Muswah. Collectively, they describe Mr. Johnson as a tremendous source of support and a good person.
[15] I also received a letter of support from Robinson Akintade, Executive Vice-President of the Brampton Minor Football Association, where Mr. Johnson volunteered his time for the last few years.
[16] Finally, Pastor Keaton Austin of the Young Lives Matter Outreach Ministry provided a character letter describing Mr. Johnson’s invaluable volunteer work with his organization.
POSITIONS ON SENTENCE
[17] It is agreed that Mr. Johnson spent nine days in custody as a result of these charges; with Summers credit, this is the equivalent of 14 days of pre-sentence custody.
[18] The Crown seeks a global sentence of four years (less credit for pre-sentence custody) apportioned as follows:
- 3 years on the s.95(1) CC offence;
- 3 years concurrent on the s.92(1) CC offence; and
- 1 year consecutive on the s.117.01(1) CC offence.
[19] The defence submits that, when due consideration is given to the sentencing principles of rehabilitation, restraint and reintegration, as well as the reduced moral culpability of Mr. Johnson pursuant to R. v. Morris, 2021 ONCA 680, a global sentence of 2.5 years (less credit for pre-sentence custody) is appropriate, broken down as follows:
- 2 years on the s.95(1) CC offence;
- 2 years concurrent on the s.92(1) CC offence; and
- 6 months consecutive on the s.117.01(1) CC offence.
PURPOSE & PRINCIPLES OF SENTENCING
[20] The fundamental principle of sentencing is proportionality. “The sentence must be severe enough to denounce the offence but must not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence.”[^1]
[21] Indeed, Parliament has codified this fundamental principle in s.718.1 CC, which holds that, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[22] In arriving at a just sentence for Mr. Johnson, the principle of proportionality requires that I give full consideration to both factors, without elevating one at the expense of the other.[^2]
[23] In this case, the gravity of the offences – possession of a loaded prohibited firearm while bound by a weapons prohibition order – is not seriously in dispute.
[24] “Gun-related crime poses grave danger to Canadians.” Chief Justice McLachlin’s opening salvo in R. v. Nur, 2015 SCC 15, para 1, remains especially applicable some ten years later.
[25] Indeed, as the Ontario Court of Appeal stated in Morris:
Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 SCC 36, pp. 214-15.[^3]
[26] Rather, it is Mr. Johnson’s degree of responsibility, as understood under the Morris framework, that the defence argues should be considered diminished.
[27] The primary sentencing considerations for possession of a loaded prohibited firearm are denunciation, general deterrence and protection of the public.[^4]
[28] Chief Justice Lamer explained the principle of denunciation in the following terms:
The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law… Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.[^5]
[29] General deterrence is grounded in the theory that punishment will discourage others in the community from engaging in that particular type of crime. It is engaged either when the crime is particularly heinous or when the crime is particularly prevalent in the community.[^6]
[30] I have no difficulty concluding that possession of a loaded firearm in public is both serious and prevalent in our community.
[31] The principle of specific deterrence relates to the need to send a message to the individual being sentenced. Given Mr. Johnson’s possession of a prohibited handgun in flagrant defiance of a weapons prohibition order, the appropriate sentence must take into account specific deterrence.
[32] The principle of parity (s.718.2(b) CC) directs that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is a notoriously difficult exercise, as no two cases are exactly the same. As succinctly stated by Chief Justice Lamer, “…the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic frustration.”[^7]
[33] This point is illustrated by the vast range of sentences handed down in somewhat similar circumstances (i.e. gun possession with Morris factors engaged) in the last three years alone, from conditional sentence orders[^8] to upper reformatory sentences[^9] to significant periods of incarceration in the penitentiary.[^10]
[34] The principle of restraint (s.718.2(d) and (e) CC) recognizes that prison should be the sentence of last resort and that the court should consider the least intrusive alternatives, provided the other sentencing principles are appropriately addressed.
[35] The totality principle requires a sentencing judge who orders a consecutive sentence to ensure that the cumulative sentence imposed does not exceed the overall culpability of the offender.
[36] Finally, in determining a just sentence, I must take into account all relevant aggravating factors (including the statutory aggravating factors in s.718.2(a) CC) and mitigating factors relating to the offence and the offender.
AGGRAVATING & MITIGATING FACTORS
[37] There are significant aggravating factors in this case, including:
- Mr. Johnson possessed a loaded prohibited firearm in a motor vehicle travelling to and from a night club.
- The firearm was a Smith & Wesson M&P Bodyguard 380 handgun, more concealable and easily accessible than a long gun.
- Firearm-related crime is an epidemic in Canada. This alarming trend no doubt influenced Parliament’s decision to increase the maximum sentence for s.95(1) offences from 10 to 14 years in December of 2023.
- The fact that the handgun was loaded with a bullet in the chamber suggests a willingness to use it, if necessary.
- Mr. Johnson discarded the loaded handgun in an entirely public space that was accessible to any person walking by, including a child.
- Pictures on Mr. Johnson’s phone of the exact same type of firearm are indicative of more than a fleeting interest in the Smith & Wesson M&P Bodyguard 380 handgun.
- Mr. Johnson has a criminal record for a serious offence, a break and enter, for which he received a conditional sentence.
- At the time of these charges, Mr. Johnson was on a release for offences in Peel Region.
- Mr. Johnson was bound by a weapons prohibition order at the time. While this is no doubt aggravating in the common sense of the word, I will not treat it as such with respect to the s.95(1) CC offence, as it will be the subject of a consecutive sentence on the s.117.01(1) CC offence.
- With respect to the s.117.01(1) CC offence, it is aggravating that Mr. Johnson breached the prohibition order in two ways, by possessing a firearm and ammunition.
[38] I accept the following factors as mitigating on sentence:
- Mr. Johnson is young enough, at 30 years old, to take advantage of his rehabilitative potential.
- Mr. Johnson has significant support from family members and members of the community. By all accounts, he is a good son, brother, partner and father. He is also a valued and involved member of different community organizations.
- I consider it mitigating that whatever custodial sentence I impose will disrupt his ability to raise his daughter and, in turn, will likely have long-lasting effects on her.
- There is limited mitigating value in the fact that he suffered a gunshot wound that night, as the defence reminds me that there is no evidence that Mr. Johnson’s injury was in any way connected to his possession of a firearm—although common sense, experience and intuition may suggest otherwise.
- As a result of these charges, Mr. Johnson spent nine actual days in custody.
[39] The defence submits that there are a number of Morris factors that significantly reduce Mr. Johnson’s moral blameworthiness. I will address this below.
[40] While a guilty plea would be a significant mitigating factor, I wish to emphasize that Mr. Johnson’s decision to advance numerous Charter arguments and take this matter to trial is not an aggravating factor. It simply represents the absence of a significant mitigating factor.
THE MORRIS FACTORS & MR. JOHNSON’S DEGREE OF RESPONSIBILITY
[41] In the seminal decision of R. v. Morris, 2021 ONCA 680, the Court of Appeal for Ontario arrived at the following principal conclusions, at para 13:
Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s.718.
The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence.
Courts may acquire relevant social context evidence through the proper application of judicial notice or as social context evidence describing the existence, causes and impact of anti-Black racism in Canadian society, and the specific effect of anti-Black racism on the offender.
Consistent with the rules of admissibility, a generous gateway for the admission of objective and balanced social context evidence should be provided.
[42] I have no hesitation taking judicial notice of the contents of the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” that formed Appendix A of the trial-level sentencing decision in R. v. Morris, 2018 ONSC 5186.
[43] While I have ample social context evidence of anti-Black racism in Ontario, the evidence about Mr. Johnson himself is difficult to gauge in assessing his degree of moral blameworthiness with respect to these specific offences.
[44] I accept that Mr. Johnson grew up in a troubled neighbourhood plagued with gun and gang violence and surrounded by casualties with whom he was acquainted. I accept that this environment had lasting effects on Mr. Johnson.
[45] I further accept that the legacy of overt and systemic anti-Black racism in Ontario directly or indirectly contributed to Mr. Johnson’s educational, economic and social disadvantages.
[46] It is, however, difficult for me to fully assess the defence submission that Mr. Johnson felt that he needed a firearm for protection. I understand from defence submissions that Mr. Johnson’s environment changed dramatically at the age of 17 when his mother’s economic situation improved and she moved the family to a more affluent neighbourhood in Brampton. Without further elaboration, I am left without a clear idea why Mr. Johnson still felt the need to arm himself 11 years after moving out of the Mount Olive neighbourhood.
[47] It is clear to me that anti-Black racism, including overt and systemic anti-Black racism, continues to plague all aspects of our society. The criminal justice system is not exempted.
[48] With this reality in mind, despite the gap in information before me about the reasons for Mr. Johnson’s possession of a firearm, I am nonetheless satisfied that anti-Black racism played some role in leading Mr. Johnson to make an extremely ill-advised choice on 20 October 2022.
[49] On the record before me, I conclude that Mr. Johnson’s moral blameworthiness was somewhat diminished, although not significantly so.
THE APPROPRIATE SENTENCE
[50] Sentencing is both an individualized process and a difficult exercise. This case is no exception.
[51] I have before me a 30-year-old male with unlimited potential who is beloved by his family members and members in the community. And yet this same male brought a loaded handgun out in the public while expressly prohibited from possessing firearms and ammunition.
[52] Having carefully considered the circumstances of the offences, the circumstances of the offender, and all aggravating and mitigating factors, I have concluded that the least restrictive sentence that adequately achieves the purpose and principles of sentencing is as follows:
Possession of a Loaded Prohibited Firearm – s.95(1) CC:
- 35 months, 15 days in custody (in light of 9 actual days in custody, credited as 15 days pre-sentence custody)
- DNA Order (secondary designated offence)
- S.109 Prohibition Order for life
Possession of a Prohibited Firearm Knowing its Possession is Unauthorized – s.92(1) CC:
- 24 months custody, concurrent
Possession of a Firearm Contrary to a Prohibition Order – s.117.01(1) CC:
- Nine months custody, consecutive.
[53] In summary, Mr. Johnson will serve an additional 44 months and 15 days in custody.
[54] Finally, I will sign the disposition of property order that has been submitted.
Released: 13 February 2025
Justice R.M. Robinson
FOOTNOTES
[^1]: R. v. Bissonnette, 2022 SCC 23, para 50
[^2]: R. v. Proulx, 2000 SCC 5, paras 82-83; R. v. Ipeelee, 2012 SCC 13, para 37
[^3]: Morris, supra, at para 68.
[^4]: R. v. Scholz, 2021 ONCA 506, para 19; R. v. Saeed, 2024 ABCA 373, para 20
[^5]: R. v. C.A.M., 1996 SCC 230, para 81
[^6]: R. v. Foianesi, 2011 MBCA 33, paras 12-13
[^7]: R. v. C.A.M., 1996 SCC 230, para 92
[^8]: R. v. Vanderhyden-Steaman, 2025 ONCJ 22; R. v. Shaquane Stewart, 2022 ONSC 6997; R. v. Peter Stewart, 2024 ONSC 281; R. v. Beharry, 2022 ONSC 4370; R. v. Burke-Whittaker, 2024 O.J. No. 3435 (S.C.J.); R. v. Edwards, 2023 ONCJ 53; R. v. Hussey-Rodrigues, 2024 ONSC 2671; R. v. Marier, 2023 ONSC 5194; R. v. Moses, 2022 ONSC 332; R. v. Moye, 2024 ONCJ 445; R. v. Ndayihezagiye, 2024 ONCJ 457; R. v. Roberts, 2023 ONCJ 226; R. v. Yogo, 2023 ONSC 4144.
[^9]: R. v. Allen, 2024 ONCJ 379; R. v. Fagan, 2024 ONSC 2718; R. v. Hassan, 2023 ONSC 5040.
[^10]: R. v. Pusey, 2025 ONCJ 1; R. v. Atkinson, 2024 ONCJ 425; R. v. Morgan, 2024 ONSC 1344; R. v. Lovell, 2023 ONSC 5776; R. v. Saeed, 2024 ABCA 373; R. v. Boreland-Goode, 2023 ONSC 6799; R. v. Dansoko, 2024 ONSC 3350; R. v. Henry-Robinson, 2022 ONCJ 302; R. v. Johnson, 2022 ONSC 2688; R. v. Kongolo, 2022 ONSC 3891; R. v. Mesinele, 2023 ONCJ 28; R. v. Rudder, 2022 ONCJ 367; R. v. Tabnor, 2021 ONSC 8548; R. v. Williams, 2022 ONCJ 57.