ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-40000183
DATE: 20120405

BETWEEN:

HER MAJESTY THE QUEEN – and – OMAR LAWSON Accused

J. Andres Hannah-Suarez, for the Crown
Paul Aubin, for the Accused

HEARD: March 9, 2012

DUNNET J. (Orally)

REASONS FOR SENTENCE

[ 1 ] Omar Lawson has been found guilty of possession of a restricted firearm together with readily accessible ammunition capable of being discharged in the firearm.

[ 2 ] The evidence satisfied me beyond a reasonable doubt that on December 4, 2009, police entered apartment 208 at 11 Catford Road in Toronto to execute a search warrant. Mr. Lawson, his wife, mother-in-law and five children were present in the apartment.

[ 3 ] As the police were clearing the apartment, they received information from officers on the ground, who had been tasked to watch the balcony and windows that they saw Mr. Lawson force a handgun through a window screen. The gun fell to the ground below. During the search of the apartment, seventy-seven rounds of ammunition were found on top of a dresser in the room with the damaged screen.

[ 4 ] The next day, Mr. Lawson's wife asked the police to return to the apartment. When they arrived, she led them to a suitcase in a bedroom. In an outside pocket, they found a loose bullet and a magazine with bullets. When the officer asked if “Omar” lived at the address, she said that he “just stayed there sometimes”.

[ 5 ] At the outset of his trial, Mr. Lawson brought an application for an order excluding all incriminating evidence discovered as a result of the search. The application proceeded by way of submissions. I concluded that the search was conducted in violation of Mr. Lawson’s section 8 Charter rights, because the redacted information from a confidential informant was insufficient to raise a reasonable probability that Mr. Lawson would be in possession of the suspected handgun.

[ 6 ] I found, however, that the police who were executing the search warrant believed that they were acting pursuant to a legally authorized search. Also, there was no evidence that officers inside the apartment were aware that Mr. Lawson had tossed a gun out the window before he entered the hallway in response to their commands. Following my ruling, counsel brought to my attention the notes of police officer Michael West which stated that he saw Mr. Lawson use a gun to slice through the screen and he stood by until he received confirmation that Mr. Lawson was in custody before advising the officers inside the apartment about the “property out the window”. I concluded that any causal connection between the constitutional violation and the discovery of the gun was tenuous, at best, and, in any event, the police actions were not in deliberate disregard for Mr. Lawson’s Charter rights.

[ 7 ] To the extent that there was a breach of his right to be free from unreasonable search and seizure of the contents of his suitcase, I found that it was of an inadvertent nature and not a willful or egregious act. Further, the magazine and ammunition in the suitcase would have been discovered through the search warrant process, in the absence of consent from Mr. Lawson’s wife.

[ 8 ] Balancing the lines of inquiry mandated by R. v. Grant, 2009 SCC 32, I was of the opinion that the gun offence was serious. Mr. Lawson was a temporary inhabitant in a residence with young children where he kept a gun, a magazine and ninety-four rounds of ammunition. In the absence of this crucial and reliable information, the prosecution would fail. Thus, a reasonable person informed of all relevant circumstances and the values underlying the Charter would not conclude that admission of the evidence would bring the administration of justice into disrepute.

[ 9 ] After his arrest, Mr. Lawson acknowledged to police that the gun belonged to him. He told them that he had purchased the gun in order to protect himself and his family, because he had been shot at a nightclub in September 2008, and he and his wife had been receiving threatening telephone calls.

[ 10 ] Mr. Lawson is a 37 year old Canadian citizen. He is married with five children between the ages of two and thirteen years. Between 2003 and 2009, he worked at Jamaica House Kitchen in Brampton. While he has been subject to conditions of his bail, he has worked with his brother at That Guy Corp. in Toronto.

[ 11 ] His criminal record consists of the following offences: theft under $1000 in 1991; two convictions for possession of property obtained by crime and dangerous operation of a motor vehicle in 1993; conspiracy to commit robbery in 1995, for which he was sentenced to two years less a day and probation for 18 months; obstruct peace officer in 1999; assault with intent to resist arrest and failing to comply with his recognizance in 2000, for which he received the equivalent of a 16 month sentence and a section 109 mandatory prohibition order for ten years in relation to weapons offences.

[ 12 ] The Crown submits that a penitentiary sentence of five years is warranted in order to denounce Mr. Lawson’s repeated criminal conduct and deter him from committing further crimes.

[ 13 ] On behalf of Mr. Lawson, it is asserted that an upper end reformatory sentence to be served in the community would reflect the exceptional circumstances of this case. It is submitted that after his marriage and the birth of his children, Mr. Lawson abandoned his criminal lifestyle. When he was the victim of a shooting in a nightclub, he cooperated with police. After the perpetrators were convicted, he began to receive threats and acquired a firearm for his protection. It is the position of the defence that while on bail, Mr. Lawson has conducted himself appropriately and he is remorseful. Numerous letters filed on his behalf reflect that he is a loving husband and father whose family would be affected emotionally and financially by a lengthy penitentiary sentence.

[ 14 ] Mitigating factors relevant to sentence are as follows:

(a) Mr. Lawson's criminal record is dated.
(b) He has not breached conditions of his bail.
(c) He has a supportive family.
(d) He has saved court resources by waiving his preliminary inquiry and admitting the Crown's case when his Charter application failed.
(e) The firearm was not loaded.
(f) He cooperated with police. Although he initially threw the gun out the window in order to evade criminal association, he provided a statement to police where he admitted that the gun was his. It is noteworthy that he told the police that there was no magazine in the apartment, when in fact, a high caliber magazine was found in the suitcase.

[ 15 ] It is submitted that there is no evidence that Mr. Lawson had the gun for reasons other than self defence because he was receiving threatening telephone calls from individuals whom he suspected had been involved in the shooting at the nightclub. This is not a mitigating factor. Moreover, it does not explain why he was in need of ninety-four rounds of ammunition. I concur with the comments of Crown counsel that we do not live in a state where people have to take protection into their own hands. That is why we have the police. Parliament has specifically legislated against guns. The potential exists for the all too common crossfire situation.

[ 16 ] Aggravating factors relevant to sentence are as follows:

(a) Mr. Lawson was in possession of an illegal high capacity magazine capable of causing significant carnage.
(b) Every bullet carried with it the potential for fatal consequences, whether intended or accidental.
(c) The gun, magazine and ammunition were kept in a home with young children.
(d) There is no indication that the items were kept in a secure location. The gun did not have a trigger lock. Seventy-seven bullets were on top of a dresser. A high capacity magazine and seventeen bullets were in an outside pocket of a suitcase in a bedroom.
(e) This is Mr. Lawson’s ninth conviction and his seventh as an adult. He has had four custodial sentences.
(f) He has a criminal record for violence. He received an upper reformatory sentence for conspiracy to commit robbery and the equivalent to an upper reformatory sentence for assault with intent to resist arrest.
(g) He chose to purchase a handgun when he was subject to a mandatory prohibition order.

[ 17 ] On May 1, 2008, the previous minimum sentence for a section 95 offence increased from one to three years for a first offence (Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8). In R. v. Smickle, 2012 ONSC 602, Molloy J. declared that the reference to a minimum punishment of imprisonment of, “in the case of a first offence, three years,” as set out in s. 95(2) (a)(i) of the Criminal Code, was inconsistent with the Charter of Rights and Freedoms and of no force and effect. Counsel agree that if this court is satisfied that a fit and appropriate sentence for Mr. Lawson is three years or more, there is no need to deal with the issue of the constitutionality of the mandatory minimum sentence provision.

[ 18 ] The constitutional issue was canvassed at length by Code J. in R. v. Nur, 2011 ONSC 4874. Mr. Nur was a 19-year-old first offender who pleaded guilty to possession of a loaded prohibited firearm. He had been standing outside a community center when the police arrived and a chase ensued during which he threw away a semi-automatic loaded handgun with an oversized ammunition clip.

[ 19 ] Code J. analyzed sentences prior to Parliament’s introduction of the three-year mandatory minimum sentence (paras. 49-52). He concluded that the appropriate range of sentence for a first offence of possession of a loaded handgun was between two years less a day and three years imprisonment and much longer sentences were imposed for recidivists.

[ 20 ] In 2005, Toronto experienced a dramatic increase in gun-related homicides and that year came to be known as “the year of the gun”. Code J. observed that as the proliferation of handguns and homicides involving handguns increased, the justice system responded to public alarm by stiffening its approach to sentencing in cases involving handguns. He noted that in the seven year period leading up to passage of the 2008 legislation, there was an increase of 139% in the number of s. 95 firearms charges (paras. 49, 91).

[ 21 ] With respect to the constitutional issue, while Code J. found that the section 7 ground had merit, Mr. Nur had no standing to raise it. He remarked that there was little sentencing case law to provide guidance concerning the application of the new minimum sentence. He then reviewed R. v. Dene, [2010] O.J. No. 5192, where the offender was sentenced to five and one half years, including four years for his first s. 95 offence and six months for breach of a section 109 order. Mr. Dene was 21 years old and had a prior conviction for trafficking cocaine. He fled from the police in a high crime area and when he was caught, he was found in possession of a gun and 28 rounds of ammunition. The sentence was upheld on appeal (2010 ONCA 796).

[ 22 ] Code J. found that Mr. Nur should receive a sentence of more than the minimum, because of aggravating features, notably that he threw away the gun in a public parking area and the over-sized magazine. Although he would have imposed a sentence of two and one-half years under the earlier legislation, he concluded that the appropriate sentence for Mr. Nur under the post-2008 regime was forty months imprisonment (para. 87).

[ 23 ] Notably, in Dene, a sentence of five and one-half years was considered by the Court of Appeal to be at the “high end” for an offender with a criminal record, who fled from police, was found in possession of a gun and ammunition and breached a section 109 order. In Nur, there were fewer aggravating factors and a sentence of just over three years was imposed.

[ 24 ] The Crown also relies upon a number of recent cases in support of his submission that a five year sentence is warranted. In R. v. Velez-Lau, 2011 ONSC 4805, a 24 year old first offender received a sentence of four years for possession of two firearms, a magazine containing fifteen bullets and boxes containing sixty-eight bullets that were discovered by police in a storage locker.

[ 25 ] In R. v. Morris, 2011 ONSC 5206, a 25 year old man, who did not have a firearms related record received a sentence of fifty months, including forty-four months for firearms offences, one of which was for possession of a loaded restricted firearm.

[ 26 ] In R. v. James, 2011 ONSC 241, following a plea, the court imposed a sentence of three and one half years for possession of a loaded prohibited firearm and eight months for breach of a prohibition order. Mr. James was in front of a community center when police approached and in the course of the pursuit, he tossed a handgun with a magazine holding six rounds into the rear of a dump truck. He was 26 years of age and had a criminal record, including a trafficking conviction for which he received a sentence amounting to twenty-five months.

[ 27 ] At para. 26 in James, Spies J. held:

Furthermore, although in his mind he had a reason for carrying a firearm, which I understood was for his own protection, that reason cannot be endorsed by this court. There was no legitimate reason for Mr. James to carry a firearm and, in fact, he had been ordered by the court not to do so. Tragically, many young people in this city have foolishly decided to carry a firearm in the misguided belief that it will afford them some protection. It is decisions like these that have no doubt contributed to the unnecessary and tragic deaths of many young people in this city.

[ 28 ] The Crown submits that even absent the sentencing regime after 2008, the trend towards increasing sentences was already recognized in jurisprudence corresponding with a national concern over gun crime and the need for significant sentences to emphasize denunciation and deterrence in such cases evidenced by the loss of life occasioned by their use. See R. v. Reid, 2009 ONCJ 582 at para. 22 and R. v. Ferrigon, 2007 ON SC 16828, [2007] O.J. No.1883 at paras. 25, 26.

[ 29 ] The position of the defence is that Mr. Lawson is approaching 40 years of age and has remained crime free for almost a decade. It was only after he was the victim of a shooting and started receiving threats from those associated with the shooting that he acquired the firearm for protection. Moreover, there is no evidence that the firearm was loaded, or carried in public, or associated with drugs.

[ 30 ] The defence contends that the mitigating circumstances in this case warrant an exceptional punishment analogous to the sentence imposed in Smickle. Mr. Smickle was reclining on a sofa in his cousin’s apartment using a webcam on his computer to pose with a loaded handgun in one hand in order to take his picture for a Facebook page. When the police entered the apartment to execute a search warrant, he immediately put down the gun, lay on the floor and cooperated fully. Mr. Smickle was a relatively youthful first time offender with a positive pre-sentence report.

[ 31 ] Molloy J. concluded that Mr. Smickle found the gun in the apartment and took the opportunity to “show off” with it for the benefit of his friends on Facebook. She determined that he never intended to use the gun and it was nothing more than a prop for the photograph.

[ 32 ] The defence also relies upon the case of R. v. Los, [2008] O.J. No. 3248. Mr. Los found a rifle in a dumpster and kept it for self protection. During a fracas in the neighbourhood, he fired it into the air to stop the fight and disperse the crowd. The court found that this was a case of bad judgment and misguided intention.

[ 33 ] Mr. Los was 30 years of age and the sole breadwinner for his large family. His remorse was mitigating, as was the minor nature of his dated record. The court was impressed with how Mr. Los had turned his life around after his difficult teenaged years and found that incarceration would put an emotional and financial strain on the family. The court concluded, however, that the minimum sentence of one year should not be imposed because of the serious consequences that could have resulted from the discharge of the firearm in the community. Mr. Los received a sentence of 18 months for the firearms offences, including possession of a prohibited firearm under s. 95(1) of the Code.

[ 34 ] The defence also relies on the following cases: R. v. Canepa, 2011 ONSC 1406, R. v. Williams, 2011 ONSC 3914, R. v. McIntosh, 2010 ONSC 916, R. v. Brown, [2006] O.J. No. 4681 (S.C.), R. v. Grant, 2006 ON CA 18347, 81 O.R. (3d) 1 (S.C.), R. v. Newman, [2003] O.J. No. 5574 (S.C.), R. v. Beckford, [2008] O.J. 1781 (S.C.), R. v. Z.S., [2005] O.J. No. 1716 (S.C.), R. v. Manickavasagar, [2002] O.J. No. 5828; aff’d, 2004 ON CA 26063, [2004] O.J. No. 1595 (C.A.), R. v. B.S., 2011 ONSC 6463, R. v. Lawes, 2007 ONCA 10 and R. v. Z.L.M., 2011 ONSC 4051.

[ 35 ] It is notable that in Williams, the offender who was in possession of a gun and threw it into a dumpster in a busy area received a one year sentence. Mr. Williams, however, had a minor criminal record involving no firearms related offences.

[ 36 ] In McIntosh, where a fifteen month sentence was imposed for possession of a firearm, Quigley J. noted that the minimum sentence under the legislation at the time of the offence was one year and if he had been sentencing Mr. McIntosh for other drug-related charges that were not heard at the same time, he would have imposed a two year penitentiary sentence. The court was influenced by Mr. McIntosh’s prospects for rehabilitation in that he was disassociating himself from those involved in criminal activities and his past involvements with the law were related to illegal substances and domestic violence; both issues he appeared to addressing successfully through counseling. Also, there were delays associated with the trial unrelated to Mr. McIntosh.

[ 37 ] Most of these cases are fact-specific and of little assistance. Some were decided before the justice system stiffened its approach to sentencing in cases involving handguns. Many involve youthful first offenders with minor records.

[ 38 ] I accept that Mr. Lawson is remorseful and that incarceration would put an emotional and financial strain on his family. His criminal record is dated and he has complied with his conditions of bail.

[ 39 ] On the other hand, Mr. Lawson is not a first offender. He has a criminal record for violence and has served four previous custodial sentences. Knowing that he was the subject of a prohibition order, he chose to buy a Taurus 9 mm handgun and bring it into an apartment housing five young children where he also kept a high capacity magazine and ninety-four 9 mm Lugar bullets, seventy-seven of which were sitting on top of a dresser in a bedroom. They posed a distinct danger to the children because of the consequences that could ensue if the gun were to be discharged.

[ 40 ] Further, in order to avoid criminal responsibility when the police arrived, Mr. Lawson chose to abandon the gun by tossing it out the window to the ground below. If the police had not observed his actions and retrieved the gun, it would have created serious concerns for public safety. Mr. Lawson told the police that he had the gun for self-protection. The logical inference is that if the need arose, he would have used the firearm for an unlawful purpose.

[ 41 ] In R. v. Danvers, 2005 ONCA 30044, [2005] O.J. No. 3532 at para. 78, the Court of Appeal held:

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 for major concern in the community and must be addressed.

[ 42 ] In my view, unlike the facts in Smickle and Los, this case does not involved “misguided intention” or “bad judgment”. Mr. Lawson intended to keep a firearm and a large quantity of ammunition in the apartment. He bought the firearm and then attempted to hide it by throwing it out the window when the police arrived. In contrast, both Mr. Los and Mr. Smickle had found the firearm they possessed.

[ 43 ] Despite the mitigating factors, there are strong aggravating factors that warrant a penitentiary sentence. I am not persuaded, however, that a sentence at the “high end” for these offences is appropriate in the circumstances.

[ 44 ] Mr. Lawson, would you please stand. I sentence you to a term of imprisonment of forty-four months. You are entitled to a credit of ten days for pre-trial custody and three and one-half months for time served under house arrest.

[ 45 ] There will be a section 109 mandatory prohibition order for life. As the offence is a secondary offence as defined in s. 487.04 of the Code, I exercise my discretion and order that Mr. Lawson provide a DNA sample under s. 487.051.

DUNNET J.

Released: April 5, 2012

COURT FILE NO.: CR-11-40000183
DATE: 20120405

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – OMAR LAWSON

REASONS FOR SENTENCE DUNNET J.

Released: April 5, 2012