ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-1-0000-201
DATE: 20120202

BETWEEN:

HER MAJESTY THE QUEEN - and - IAN JUNIOR CHAMBERS Defendant

C. Lindo-Butler, for the Crown
Richard Litkowski, for the Defendant

HEARD: January 30, 2012

Kelly J.

REASONS FOR SENTENCE

[ 1 ] Mr. Ian Junior Chambers was convicted of eight offences arising from his possession of one handgun: a .38 caliber Smith and Wesson revolver. Mr. Chambers possessed such a handgun on March 23, 2010 in the area of Weston Road and Eglinton Avenue in the City of Toronto.

[ 2 ] Mr. Chambers brought an application pursuant to ss. 7, 12 and 24(1) of the Canadian Charter of Rights and Freedoms at trial. He alleged that the police used excessive force on his arrest and as such, the charges should be stayed. At the end of the trial, the charges were not stayed. Accordingly, Mr. Chambers was convicted of all offences and the matter was adjourned for the purposes of sentencing.

[ 3 ] Mr. Chambers comes before me as a 25 year old and third time firearms offender. Crown Counsel seeks a period of incarceration of 13.5 years. Counsel for Mr. Chambers seeks a sentence of 7 years. I have concluded that the appropriate sentence in these circumstances is 8 years less time served. He will be subject, as well, to certain ancillary orders. What follows are my reasons.

The Facts [1]

[ 4 ] The area of Weston Road and Eglinton Avenue (where this offence occurred) was known to all police officers who testified from both Gangs and Guns and 12 Division of the Toronto Police Service. They all described it as a high crime area where drugs are bought and sold, gangs loiter and guns are possessed and used. Close to this intersection, and where the arrest occurred, is a residential area with war time type bungalows occupied by middle class citizens. A public junior school is also in the vicinity.

[ 5 ] On March 23, 2010, Detective Constables Loucks and McFarlane were conducting surveillance in the area of Weston Road and Eglinton Avenue. They had received information about the shooting of an unknown male party and police believed that the shooter was still in the area. Police feared that there may be some form of gang retaliation for the shooting.

[ 6 ] It was in this location that both officers first observed Mr. Chambers. Mr. Chambers was observed leaning up against an alcove to the entrance of “Nancy’s Bar and Grill”. Mr. Chamber’s right hand appeared to be holding something in his jacket pocket and the officers became concerned that he was armed with a gun. Mr. Chambers appeared to acknowledge other persons in the neighbourhood.

[ 7 ] Various members of a gang known to the police as the Five Point Generals were also in the area. They, too, appeared to acknowledge the presence of Mr. Chambers. One of them also appeared to be holding a firearm that was concealed. P.C. Loucks concluded from the conduct of all parties that he was about to observe “something” happen “real fast” and “right then”.

[ 8 ] Eventually Mr. Chambers walked northbound on Bala Avenue. At around the same time, a marked police cruiser appeared and approached in the direction of Mr. Chambers. D.C. McLane observed a uniformed police officer get out of the cruiser at which point Mr. Chambers ran in an easterly direction into a backyard. The uniformed officers from the cruiser (P.C. Mahli and P.C. Morris) followed him.

[ 9 ] Mr. Chambers ran into a driveway of 37 Bala Avenue and within seconds, he reached a small fence that rose six to eight inches from the ground. Mr. Chambers tripped on the fence and it was at this point that Mr. Chambers turned to the left and P.C. Mahli observed the handgun. At this point, P.C. Mahli testified that his “heart dropped” and testified “I was not sure if he was going to shoot at me”.

[ 10 ] P.C. Mahli took out his own gun and was yelling at Mr. Chambers to “get down” and to stop. He was yelling out “he’s got a gun” at which point Mr. Chambers dropped the gun. Mr. Chambers regained his balance and continued running to the back of the yard. P.C. Mahli chased him and put his gun back in his holster.

[ 11 ] Mr. Chambers tried to jump a mesh fence at the back of the yard that was four or five feet in height. As he was attempting this, P.C. Mahli grabbed Mr. Chambers from behind; took Mr. Chambers down to the ground; and ended up on top of Mr. Chambers who had his back on the ground.

[ 12 ] A struggle ensued between Mr. Chambers and P.C. Mahli. P.C. Mahli admitted to punching, elbowing, kneeing and possibly kicking Mr. Chambers during this struggle. The purpose of using such force was to prevent him from fleeing and to prevent him from accessing the gun.

[ 13 ] P.C. Morris immediately attended to the site and he, with P.C. Mahli, were able to roll Mr. Chambers over face down and handcuff him to the rear. Mr. Chambers was arrested, the firearm was retrieved and he was taken to the hospital.

[ 14 ] The registered nurse who assisted Mr. Chambers at the hospital noted several injuries to the face of Mr. Chambers (that are described in more detail in my reasons for judgment). He received stitches and Percocet at the hospital. Following his release, he was taken to 12 Divison for processing. When incarcerated at the Metro West Detention Centre, he was observed and treated for two days in the Health Care Unit.

What is the fit sentence?

[ 15 ] In coming to my conclusion regarding the appropriate sentence of 8 years, I am reminded of the guidance provided by of our Court of Appeal in R. v. Danvers [2] The Courts have increasingly denounced gun violence and the illegal possession of firearms in Toronto, as has the general public.

[ 16 ] In R. v. Danvers, supra, the Ontario Court of Appeal made it clear that a strong message must be sent to those in our society who would use and possess illegal firearms. Armstrong J.A. stated: “our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms ”. [Emphasis added]

[ 17 ] In the six years since Danvers was decided, “the concern [over gun violence] is still unfortunately very much alive and un-satiated.” If anything, an even stronger message needs to be sent that the possession of illegal firearms will simply not be tolerated:

In my view, the paramount sentencing objectives in this case are denunciation and deterrence. The citizens of this city must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use those weapons especially in such a premeditated and merciless manner. Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and, if it is committed, it will attract the severest of consequences. Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of other people. [3]

The Aggravating Factors

[ 18 ] In light of these principles, I will deal first with the aggravating factors which I consider to be the following:

a. The circumstances in which Mr. Chambers was in possession of a firearm are extremely grave. The weapon is obviously a deadly one. However, the situation is worsened due to the fact that it was loaded and ready for firing.

b. The firearm was carried in a neighbourhood known for violence. That being said, it appears that Mr. Chambers was carrying such a firearm in a place where businesses operate. For instance, Mr. Chambers was described as being in the area with two bars, one coffee shop and a KFC. Presumably the businesses were operating at 5:30 p.m. on the date in question and were locations where members of the public are to be welcomed and encouraged to visit. Anybody in that area of town at that time was at risk due to the conduct of Mr. Chambers.

c. The firearm was also carried in a neighbourhood occupied by both apartment dwellers and home owners. There was a school located in the area where Mr. Chambers was arrested. Although it is not likely that the school was in full operation at the time of the arrest, it may be that children were attending for after school programs. Mr. Chambers put those children and others at the school at risk by carrying the firearm as he did.

d. Most importantly, Mr. Chambers put the owners and occupiers of 37 Bala Avenue at risk by his conduct. Not only did he race down the driveway of the home upon noting the presence of police, he ran into the backyard. It was 5:30 p.m. and anyone could have been in the driveway or the backyard as he did this. Had the gun discharged at any time during this chase or when it was dropped, the consequences for anybody in the area, and particularly for those residents of 37 Bala Avenue, could have been deadly.

e. Mr. Chambers put the public at serious risk when he chose to flee from the police officers and dropped the loaded firearm in the backyard of somebody’s home.

f. Mr. Chambers has a prior and related record as follows:

Date
Offence
Penalty

December 8, 2004
Possession of a loaded, prohibited or restricted firearm
Suspended sentence and probation for two years Time served: 7 months, 15 days Mandatory prohibition order pursuant to s. 109

July 4, 2008
Possession of a firearm knowing it is unauthorized Possession of a firearm contrary to a prohibition order

Time served: 7 months 1 day in custody 3 years probation s. 109 order for life

g. Mr. Chambers was subject to two firearms prohibitions at the time of the offences.

h. Mr. Chambers was on probation at the time of the offences.

i. Mr. Chambers was on judicial interim release at the time of the offences.

The Mitigating Factors

[ 19 ] I consider the following to be the mitigating factors affecting sentence:

a. Although Mr. Chambers did not plead guilty; he did raise a legal argument submitting that his Charter rights were infringed. I do not find that Mr. Chambers brought the application frivolously and that such an application had merit.

b. Mr. Chambers re-elected to be tried by a judge alone which reduced the amount of court time required to hear this matter.

c. Mr. Chambers did concede guilt to all offences should the Charter application be dismissed and required no further evidence to be called.

d. Although Mr. Chambers was in control and it was his decision to flee the officers, he did suffer some injuries upon his arrest as referred to above.

e. Mr. Chambers has shown remorse as is set out more fully below.

f. Mr. Chambers is 25 years of age and has support in the community as set out more fully below.

g. To date, Mr. Chambers has not been incarcerated in the penitentiary.

Rehabilitation

[ 20 ] In considering Mr. Chambers’ rehabilitation, I have considered the evidence called and produced at his sentencing hearing. It is my view that there is “hope” for the rehabilitation of Mr. Chambers.

(i) The Father

[ 21 ] Mr. Chambers’ father (the “father”) testified that his son was raised in a difficult area of town and that they made efforts to isolate their children from the environment so that they would go on to be productive in society. He said that Mr. Chambers was a good student up until approximately Grade 10 when he did poorly and became disinterested in education. He did not secure full time employment thereafter and he did not return to school despite his father’s urging. He testified that his son has been shot twice but that he does not know the perpetrator.

[ 22 ] The father appears to have been steadily employed throughout his life and currently works for the TTC. He seemed to blame himself for not being in his son’s life enough to keep himself on the right track due to his separation from his wife. This, of course, is unfortunate.

[ 23 ] Despite the problems that Mr. Chambers has had with the law, his father is hopeful that he can get his education and become a productive member of society. He is willing to support him and provide him with a residence upon his release, if necessary. I accept the evidence of the father as sincere despite his failed efforts to date.

(ii) Ms. Julieann Moore

[ 24 ] Mr. Chamber’s girlfriend, Ms. Julieann Moore, also testified that she has hope for Mr. Chambers. She met Mr. Chambers in 2005 and together they have a daughter who is five years old. Ms. Moore had been steadily employed by Bell Mobility for three years until they relocated her position. She is hopeful that she will obtain another position with Bell Mobility shortly.

[ 25 ] Despite the legal troubles of Mr. Chambers, Ms. Moore is willing to stand by him. “Mind boggling” was an apt description provided by Counsel to Mr. Chambers regarding her loyalty as Ms. Moore appears to be hard working, intelligent and responsible. It is obvious that Mr. Chambers has been a disappointing boyfriend and father due to his criminality but she is willing to support him upon his release from custody. Again, I accept that Ms. Moore can be a positive influence on Mr. Chambers when he is released.

(iii) Mr. Chambers

[ 26 ] There is no doubt that Mr. Chambers has potential to be a contributing member of society. This became evident through the production of a letter written by him. It is cogent, legible and thoughtful.

[ 27 ] The letter shows that Mr. Chambers has insight into his problems. He is remorseful and asks for forgiveness. He describes his past as “shameful” and he describes himself as “embarrassed”. Mr. Chambers is now attending church programs and has turned to God for guidance.

[ 28 ] Most importantly, Mr. Chambers takes full responsibility for his actions. He says that he does not want to “throw” his life away and he has learned: “there is no winning when your envolved [ sic ] in a criminal life”. He says that he wants to “be there” for his daughter. He intends to advance his education while in custody and start searching for a job upon his release. He wants to have a career and to provide for his family.

[ 29 ] Based on the above, I believe that there is hope that Mr. Chambers can be rehabilitated. I make this finding based mainly on the insight into his crimes as set out in his letter to the Court.

Conclusion Re: The Fit Sentence

[ 30 ] There is no doubt that handguns in the city of Toronto are a scourge on our society. In sentencing Mr. Chambers, I am cognizant of the principles that I must consider. Most importantly: deterrence, denunciation and the protection of society.

[ 31 ] In my view, the request for 13.5 years in custody for possession of one gun is simply too much taking into consideration the “jump” principle. Mr. Chambers has been incarcerated on two occasions for gun offences for a period of time served of 7 months on each occasion. To go from 7 months to 13.5 years in custody would be crushing to Mr. Chambers. Such a position also fails to take into account the principle that “a first penitentiary sentence should be as short as possible” [4]

[ 32 ] I am also of the view that a sentence of 7 years is simply too low in the circumstances. Accordingly, I have calculated the sentence of 8 years on the following basis:

a. Count 1: Six Years in Custody

[ 33 ] The minimum mandatory sentence of 5 years for the possession of a firearm with ammunition fails to take into account the circumstances in which it was possessed:

a. Mr. Chambers was carrying a loaded weapon, concealed at 5:30 p.m. in a highly populated area of Toronto;

b. Mr. Chambers decided to flee police running through the yard of a residential home and dropping the gun as he tripped over a fence; and

c. Mr. Chambers struggled as the police tried to arrest him.

[ 34 ] In my view, the three factors referred to above are significant aggravating factors that warrant the elevation of Mr. Chambers sentence to 6 years. One year in addition to the minimum mandatory sentence addresses these aggravating factors of the possession of the firearm.

b. Counts 6 and 7: 2 Years in Custody

[ 35 ] I accept the submission of Crown Counsel that possessing a firearm while prohibited from doing so should attract a sentence that is consecutive to other sentences. Mr. Chambers has been the subject of two court orders not to possess firearms and he has not complied with them.

[ 36 ] Subsequent to Justice Nordheimer’s decision in J.G. [5] , a number of Courts have had the opportunity to revisit the issue of whether or not a sentence for a breach of a prohibition order should be consecutive or concurrent to the sentence for the underlying firearms conviction. A general consensus has emerged that the sentences should be consecutive [6] .

[ 37 ] The sentences for breach of the prohibition order must be consecutive in order to reflect Mr. Chambers’ commission of a separate and distinct offence – breaching a court order that specifically prohibited him from possessing firearms. I do not accept that the sentences for possessing the firearm in breach of two prohibition orders should be concurrent. They were two separate orders given on two separate occasions and give rise to two separate offences. Accordingly, I am sentencing Mr. Chambers to one year for each of those offences to be served consecutively.

c. Counts: 2, 3, 4, 5 and 8 are Concurrent

[ 38 ] The sentences for the other offences will be concurrent. I bear in mind that at least five of the offences arise out of the possession of one handgun. The other three offences arise from breach of court orders. In my view, the totality principle is a significant consideration in my decision to impose concurrent sentences for the remaining five counts.

[ 39 ] In summary, Mr. Chamber’s criminal record should reflect the following convictions and penalties:

Count
Section
Conviction
Disposition

1
95(1)
Possession of a restricted firearm with ammunition.
6 years in custody

2
92(1)
Possession of a firearm knowing its possession is unauthorized.
1 year concurrent to count 1

3
91(1)
Unauthorized possession of a firearm.
1 year concurrent to count 1

4
96(1)
Possession of a weapon obtained by the commission of an offence.
1 year concurrent to count 1

5
354(1)
Possession of property obtained by crime.
6 months concurrent to count 1

6
117.01(1)
Possession of a firearm contrary to a prohibition order dated December 8, 2004.
1 year consecutive

7
117.01(1)
Possession of a firearm contrary to a prohibition order dated July 4, 2008.
1 year consecutive

8
145(3)
Failure to comply with a recognizance dated October 21, 2009.
6 months concurrent to counts 6 and 7

Should Mr. Chambers receive enhanced credit for time served?

[ 40 ] Mr. Chambers describes his life in the Don Jail since his incarceration there on March 23, 2010:

a. It has been a rough experience since they are living three to a cell.

b. The conditions are described as “dirty”.

c. Clean clothes come ever few weeks.

d. He is able to have fresh air in the yard every few months.

e. He was assaulted by three people when he attempted to use the phone to contact his family. He was choked and he woke up in the shower with blood in his mouth.

f. He does not describe the conditions to his family because he does not want them to be worried.

g. He has been unable to participate in any programs save the religious ones.

[ 41 ] There was no evidence called at the sentencing hearing to dispute those issues about incarceration in the Don Jail as described by Mr. Chambers.

[ 42 ] As I have stated above, I do not conclude that Mr. Chambers’ application to stay the proceedings was without merit. He advanced a defence as he was entitled to do and he remained in custody at the Don Jail while doing so. I did not see anything in the record to suggest that Mr. Chambers did anything to delay these proceedings.

[ 43 ] In my view, the circumstances described above justify the maximum credit of one and one-half days for each day spent in custody. There is no indication stated on the record that Mr. Chambers was detained pursuant to s. 515(9.1), 524(4) or (8). Accordingly, Mr. Chambers will be given credit of 1,026 days (684 actual days in custody plus 342 days of enhanced credit).

What ancillary orders should be made?

[ 44 ] The following ancillary orders will be made:

a. Mr. Chambers will be ordered to provide such samples of his bodily substances as may be required for forensic analysis pursuant to s. 487.051 (b) of the Criminal Code;

b. Mr. Chambers will be subject to a weapons prohibition for life pursuant to s. 109 of the Criminal Code.

c. The gun and any ammunition is forfeited to the Crown pursuant to s. 164.02 of the Criminal Code.

Conclusion

[ 45 ] It is my view that the sentence of 8 years in custody for Mr. Chambers properly reflects society’s abhorrence of guns in our city. It also serves as denunciation and deterrence for those contemplating such possession. It takes into account Mr. Chambers’ youth, the support he has in the community and the fact that this is his first trip to the penitentiary. Lastly, and most importantly, the totality of a sentence of 8 years for these offences is appropriate.

[ 46 ] In conclusion, Mr. Chambers is sentenced to 8 years less 2 years and 10 months leaving a total of 5 years, 2 months to be served.

Kelly J.

Released: February 2, 2012

COURT FILE NO.: 11-1-0000-201
DATE: 20120202
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN - and - IAN JUNIOR CHAMBERS Defendant

REASONS FOR SENTENCE Kelly J.

Released: February 2, 2012

[^1]: The facts are set out in more detail in my reasons for decision on the Charter application released December 9, 2011 at 2011 ONSC 7197.

[^2]: [2006] O.J. No. 3532 (C.A.).

[^3]: See: R. v. P.P.J., [2010] O.J. No. 5440 (S.C.J.) at paras. 27 and 32-34.

[^4]: See: R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.) at para. 3.

[^5]: [2005] No. 4599 (Sup. Ct.).

[^6]: See: R. v. Manning [2007] O.J. No. 1205 (Sup. Ct.) at paras. 16-26.