COURT FILE NO.: 12/70000341/0000
DATE: 20130328
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PAUL WILLIAMS
Yeshe Laine, for the Crown
Steven M. Hinkson, for the Accused
HEARD: March 4 and 27, 2013
KELLY J.
Reasons for Sentence
[1] The accused, Mr. Paul Williams, was charged with eight Criminal Code offences that arose from his alleged participation in a home invasion robbery with two others while armed with a firearm.[^1] The home invasion occurred on September 14, 2011 at approximately 5:30 p.m.
[2] Following a trial by jury, Mr. Williams was convicted of three gun related offences. Specifically, he was convicted of possessing a loaded prohibited firearm in contravention of sections 95(1), 91(1) and 88(1) of the Criminal Code. By agreement and following the jury verdicts, findings of guilt were made with respect to being in breach of two prohibitions to possess firearms contrary to s. 117.01 of the Criminal Code and two counts of failing to comply with his probation contrary to s. 733.1 of the Criminal Code.
[3] In all, Mr. Williams was convicted of seven offences relating to his possession of one firearm. He was acquitted of attempted robbery with a firearm and attempt theft. He appears before me now for the purpose of sentencing.
[4] Crown Counsel seeks a global custodial sentence of 7 years. She asks that the sentence be reflected on Mr. Williams’ criminal record as receiving 5 years for the firearms offences, 18 months consecutive to that for the prohibition charges and 6 months for the breaches of probation. She submits that Mr. Williams should not receive enhanced credit for time served.
[5] Mr. Williams submits that the appropriate sentence is a global sentence of 3 years less pre-trial custody. The three years is the mandatory minimum sentence for the s. 95(1) offence and all other sentences would run concurrent to it. He submits that he should receive enhanced credit for time served. This would allow Mr. Williams to serve his sentence in the reformatory which would meet the ends of justice.
[6] I disagree with both Counsel and I would impose a global sentence of 4 years less time served on a 1.5 to 1 basis. What follows are my reasons.
The Facts
[7] The incident giving rise to all charges occurred during a home invasion robbery that occurred on September 14, 2011 at approximately 5:30 p.m. The home invasion occurred at 70 Dunfield Street, Apartment 612 in the Yonge and Eglinton area of Toronto. The police were called immediately.
[8] Ms. Else McKenna was in the apartment when the attempted home invasion occurred. She was with her son and her boyfriend. She described a horrifying incident in which the door was answered twice and a gun was held to the head of both herself and her boyfriend as the person attempted to gain entry. After the suspects were denied entry to the apartment, she saw three persons (two of whom tried to gain entry to the apartment) outside her apartment approaching her balcony. It was only when sirens were heard that the three suspects vacated the area of her apartment. She provided a description of the three suspects involved as follows: male, black and in their late teens or early twenties.
[9] Shortly after the incident, three males were captured on surveillance at the Spring Rolls Restaurant in the vicinity of the attempted home invasion. Thereafter, one of the three males (Mr. Devawn Sawyers) was seen concealing the weapons in a laneway. They were found hours later by police. The two weapons seized were loaded.
[10] One male had been arrested at the scene. Later that evening, the officers arrested Mr. Sawyers. Mr. Sawyers had a BlackBerry device on his arrest which D.C. Bartlett seized. He observed certain BBM communications between Mr. Sawyers and a person with the screen name: “Emotionally Strong”.
[11] During a review of the above-mentioned BBM exchange, D.C. Bartlett concluded that a person identified as “Emotionally Strong” was currently looking for firearms in the area of the home invasion robbery. Accordingly, D.C. Bartlett and his partner, D.C. McIntyre attended in the parking lot known as the “Dunfield Lot”.
[12] When the officers arrived in the Dunfield Lot they observed Mr. Williams. As he approached Mr. Williams, D.C. Bartlett noticed that the BlackBerry chat screen on Mr. Williams’ phone was open. D.C. McIntyre placed Mr. Williams under arrest. D.C. Bartlett took the BlackBerry device from Mr. Williams. He identified the user name of the BlackBerry as “Emotionally Strong”. He did not look at any other content on the BlackBerry device.
[13] Mr. Williams contested the admissibility of the evidence seized by D.C. Bartlett: that the screen name of the Blackberry in his possession was “Emotionally Strong”. He submitted that his Charter rights pursuant to ss. 8 and 9 were breached and the evidence should be excluded pursuant to s. 24(2). I disagreed and admitted the evidence.
[14] Thereafter, a jury was picked to hear this trial. At the end of the Crown’s case, Mr. Williams conceded that it was him on the footage of the surveillance at the Spring Rolls Restaurant. This placed him in the vicinity of the attempted home invasion robbery. He did not testify.
[15] Following approximately two weeks of trial proceedings, the jury convicted Mr. Williams of the offences outlined above. Mr. Williams conceded his guilt to the prohibition and breach of probation offences thereafter.
What is the fit sentence?
[16] In coming to my conclusion regarding the appropriate sentence of 4 years, I am reminded of the guidance provided by 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.
[17] 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]
[18] In the 7 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
[19] 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. Williams 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. A gun was placed to the heads of two victims at the door of the apartment. The victims continue to be fearful.
b. The firearm was carried in a neighbourhood occupied by businesses. Yonge and Eglinton is a vibrant community in Toronto and would have been crowded with people going two and from work and to and from their homes at 5:30 p.m.
c. It is obvious that businesses were operating in the area because Mr. Williams and the others went into a Spring Rolls Restaurant before departing the scene. Presumably other 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. Williams carrying a loaded weapon.
d. The firearm was also carried in a neighbourhood occupied by both apartment dwellers and home owners. Mr. Williams put those residents and others at in the area at risk by carrying the firearm as he did.
e. Most importantly, Mr. Williams put the owners and occupiers of the apartment at risk by his conduct. The guns were wielded at the apartment door. Had the gun discharged at any time during this occurrence or when it was placed by Mr. Sawyers in the laneway, the consequences to anybody in the area, and particularly for those residents of the apartment, could have been deadly.
f. The video surveillance shows a couple walking their dog in the area shortly before Mr. Sawyers deposited the loaded handguns and where it remained for approximately eight hours before it was seized. Although it was not Mr. Williams who placed the guns in this location one of those guns was previously in his possession. One can only imagine the damage that could have occurred had a curious bystander found the guns and attempted to determine if the guns were real by firing them. Quite frankly, it is miraculous that no innocent resident or visitor tp the area was injured or killed due to the carelessness of Mr. Williams and his partners in crime on the evening of September 14, 2011.
g. Mr. Williams has a prior, related and lengthy record as follows:
Date
Offence
Penalty
January 9, 2001
Assault with a weapon, uttering threats and fail to comply with recognizance
Time served (86 days)
18 months of probation on each charge concurrent
mandatory or discretionary prohibition order pursuant to s. 51 of the Youth Justice Act
January 22, 2006
Obstruct police officer and fail to comply with recognizance
Probation – 12 months
November 11, 2006
Obstruct police officer
Time served (8 days) and probation of 18 months
January 24, 2007
Dangerous operation of a motor vehicle and fail to comply with recognizance
Probation of 18 months on each charge concurrent
December 14, 2007
Robbery, fail to comply with recognizance, attempt theft under $5,000, theft under $5,000, mischief under $5,000, theft over $5,000 and fail to comply with disposition
Probation for 2 years on each charge
December 12, 2008
Robbery, disguise with intent, possession of property obtained by crime over $5,000, fail to comply with disposition, use of imitation firearm during the commission of a robbery, fail to comply with recognizance
15 months and 7 months and 15 days under supervision in the community and probation of 12 months on each charge concurrent
A mandatory prohibition order pursuant to s. 51 of the YCJ Act
December 13, 2010
Forcible confinement and assault
Time served (96 days) and probation of 18 months
Mandatory prohibition order pursuant to s. 51(1) of the YCJ Act
Probation of 18 months concurrent on each charge
February 4, 2011
Possession of property obtained by crime and failing or refusing to comply with the YCJ Act
Time served (55 days), 18 months probation, possess no weapons
h. This is a first firearms offence pursuant to s. 95(1) of the Criminal Code, but it is an extremely serious offence.
i. Mr. Williams was subject to two firearms prohibitions at the time of the offences.
j. Mr. Williams was on probation at the time of the offences and in breach of two such orders by possessing the firearm in this incident.
k. There is a pattern of violence and reoffending.
The Mitigating Factors
[20] There is very little in the way of mitigating factors affecting sentence:
a. Mr. Williams is young – he is just 19 years of age. He was 18 years of age at the time of the offences.
b. There is no evidence that Mr. Williams has a drug or alcohol problem.
c. Mr. Williams did concede his guilt to the prohibition and breach of probation charges. Accordingly, no further evidence was required to be called.
d. Mr. Williams has a family who appears supportive of him as they attended in Court most days. His mother is employed by Wheel Trans and his father is on a disability pension. He has two sisters who were present in the courtroom.
e. These charges are Mr. Williams’ first entries as an adult. Most of his youth has been spent accumulating entries on his criminal record, but Mr. Williams has managed to obtain a grade 10 education.
f. In 2007, Mr. Williams was stabbed. He had open heart surgery and requires care and medication for his heart condition. There are respiratory issues that have arisen from this attack.
g. Mr. Williams has been targeted by other inmates in prison due to testimony he provided resulting in a conviction and penitentiary jail sentence for that accused.
h. To date, Mr. Williams has not been incarcerated in and adult facility or the penitentiary.
Rehabilitation
[21] In considering Mr. Williams’ rehabilitation, I have very little evidence to show that there is “hope” for the rehabilitation of Mr. Williams. That being said, since being in custody, he has managed to obtain some credits towards his high school education. It is submitted that he wishes to continue his pursuit of education while in custody.
Conclusion Re: The Fit Sentence
[22] There is no doubt that handguns in the City of Toronto are a scourge on our society. In sentencing Mr. Williams, I am cognizant of the principles that I must consider. Most importantly: deterrence, denunciation and the protection of society.
[23] In my view, the request for 7 years in custody for possession of one gun is simply too much taking into consideration the “jump” principle. Mr. Williams has not been to the penitentiary as of yet and has only been in youth facilities. To go from a youth facility to serving 7 years in custody would be crushing to Mr. Williams. Such a position also fails to take into account the principle that “a first penitentiary sentence should be as short as possible”.[^4]
[24] I am also of the view that a sentence of 3 years is simply too low in the circumstances. Accordingly, I have calculated the sentence of 4 years on the following basis:
a. Counts 2, 3 and 4 on Indictment 0203/12
[25] I will deal first with those counts in indictment no. 0203/12. The minimum mandatory sentence of 3 years for the possession of a firearm with ammunition is appropriate. There will be a sentence of three years imposed on Count 2 and concurrent sentences of three years on counts 3 and 4.
b. Counts 1 and 2 on Indictment 0203A/12
[26] I will now deal with those counts in indictment 0203A/12.
[27] 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. Williams has been the subject of two court orders not to possess firearms and he has not complied with them.
[28] 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]
[29] The sentences for breach of the prohibition order must be consecutive in order to reflect Mr. Williams’ 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. Williams to 6 months for each of those offences to be served consecutively.
c. Counts 3 and 4 on Indictment 0203A/12
[30] The sentences for the other offences of breaching probation will be concurrent to the prohibition offences. I bear in mind that at least five of the offences arise out of the possession of one handgun. The other four 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 two counts.
While I might have been inclined to impose a sentence of one year each (consecutive) for the breach of the prohibition orders or consecutive sentences for the breach of probation orders, I have declined to do so in light of the principle of totality. In my view, a sentence of four years in these circumstances addresses the principles of sentencing, including totality.
Should Mr. Williams receive enhanced credit for time served?
[31] Mr. Williams has been in custody since September 14, 2011 and accordingly has been incarcerated for 560 days pursuant to these offences. He seeks enhanced credit of 1:5 days for each day spent in custody pursuant to s. 719(3.1) of the Criminal Code.
[32] Pursuant to the decision or R. v. Summers[^7], Cronk J.A. held at para. 8 that:
… s. 719(3.1) of the Code allows a sentencing judge to credit pre-sentence custody at a ratio up to, but not exceeding, 1.5:1 for each day spent in pre-sentence custody where, on consideration of all relevant circumstances, such credit is necessary to achieve a fair and just sanction in accordance with the statutory scheme for sentencing and punishment set out in the Code. On a proper record, the relevant circumstances that may justify this enhanced credit include ineligibility for remission and parole while in remand custody.
[33] In determining whether to give enhanced credit for pre-sentence custody, the court may consider: a. parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody; b. that generally, detention centres do not provide educational, retraining or rehabilitative training for those accused awaiting trial; and c. due to inmate turnover and other factors, the conditions for those awaiting trial can be onerous. It is within the discretion of the trial judge to decide whether credit will be given for pre-sentence custody.[^8]
[34] The onus is on the defendant to show, on a balance of probabilities, that he or she deserves greater than 1:1 credit. Submissions by Counsel for Mr. Williams have painted a grim picture of Mr. Williams period of incarceration to date:
a. There have been concerns for his safety as he has been subject to assaults. The result of these offences is that he has been moved from facility to facility. He spent 6 months at the Don Jail, 9 months at the Toronto West Detention Centre and 3 months in the Toronto East Detention Centre.
b. There have been concerns about Mr. Williams’ safety due to his participation as a witness in another trial wherein a person was convicted due to his testimony. Word spread within the prison system that Mr. Williams was a rat and he has been “marked” for retribution as a result.
c. He has been housed in conditions of three inmates to a cell built for two while at the Don Jail.
d. There have been repeated lockdowns in custody.
[35] There is no suggestion in the case before me that Mr. Williams intentionally delayed proceedings or that he refused to participate in treatment programs. In fact, Mr. Williams was able to obtain some high school credits during the nine month period he spent in the Metro West Detention Centre.
[36] Crown Counsel submits that Mr. Williams is not likely to be granted early parole because he has been involved in two allegations of assault while in custody. The first incident is alleged to have occurred on October 29, 2012 at the Don Jail. A correctional officer allegedly saw Mr. Williams attacking another inmate. The report states that “both” inmates were restrained and the situation was quickly controlled. No injuries were reported and the inmate that is alleged to have been attacked declined his right to pursue criminal charges. No further action was taken.
[37] The second incident is alleged to have occurred on January 16, 2013 at the Don jail. It is alleged that an inmate was assaulted by four males. Mr. Williams is alleged to have been one of those males. It is suggested that this was “likely a gang-related incident” wherein an inmate was beaten. An occurrence was filed but no other action appears to have been taken.
[38] While I appreciate that these incidents “may” have an impact on Mr. Williams’ eligibility for parole, I am uncertain if it will as no disciplinary action was taken as a result of either of the two incidents. Further, we do not know if there is any reason for Mr. Williams’ participation (if any) in either of these events. I have heard submissions that Mr. Williams has been targeted in the past because of his participation as a Crown witness resulting in a conviction wherein the person was sent to the penitentiary. Perhaps these two incidents are related? Perhaps Mr. Williams was acting in self defence? I will not speculate on the relevance of these incidents to Mr. Williams entitlement to early parole or not.
[39] I am satisfied that based on 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. Williams was detained pursuant to s. 515(9.1), 524(4) or (8). It appears that he was detained on the secondary and tertiary grounds.
What ancillary orders should be made?
[40] The following ancillary orders will be made:
a. Mr. Williams 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. Williams 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
[41] It is my view that the sentence of 4 years in custody for Mr. Williams 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. Williams’ youth and the fact that this might have been Mr. Williams first trip to the penitentiary had he not received enhanced credit for time served. Lastly, and most importantly, the totality of a sentence of 4 years for these offences is appropriate.
[42] In summary, Mr. Williams’ criminal record should reflect the following convictions and penalties:
Count
Section
Conviction
Disposition
2
95(1)
Possession of a restricted firearm with ammunition.
3 years in custody
3
92(1)
Unauthorized possession of a firearm.
1 year concurrent to count 1
4
88(1)
Possession of a dangerous weapon.
1 year concurrent to count 1
1
117.01(1)
Possession of a firearm contrary to a prohibition order dated December 12, 2008.
6 months consecutive to count 1 of indictment 0203/12
2
117.01(1)
Possession of a firearm contrary to a prohibition order dated December 13, 2010.
6 months consecutive to counts 1 of indictment 0203/12 and count 1 of indictment 0203A/12
3
145(3)
Failure to comply with a probation order of March 29, 2011.
6 months concurrent to count 1
4
733.1
Failure to comply with a probation order of December 13, 2010.
6 months concurrent to count 1
[43] Mr. Williams has spent 560 days in jail. Calculated on the basis of 1.5:1 days served, he will be credited with 840 days which means that he has 620 days left to serve (4 years x 365 = 1460 days – 840 days = 620 days). This is the equivalent of approximately 20.5 more months to serve.
[44] I would recommend that Mr. Williams serve his sentence in the Maplehurst institution, if possible.
Kelly J.
Released: March 28, 2013
COURT FILE NO.: 12/70000341/0000
DATE: 20130328
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
PAUL WILLIAMS
Applicant
Reasons for Sentence
Kelly J.
Released: March 28, 2013
[^1]: Specifically, Mr. Williams was charged with the following offences all contrary to the Criminal Code, R.S.C., 1985, c. C-46: robbery with a firearm contrary to s. 343(d); possess a loaded prohibited firearm with readily accessible ammunition contrary to s. 95(1); possess a firearm knowing that he was not the holder of a license to do so contrary to s. 92(1); possess weapons dangerous contrary to s. 88(1); possess a firearm when prohibited from doing so contrary to orders made December 12, 2008 and December 13, 2011 contrary to s. 117.01; and failing to comply with a recognizance dated March 29, 2011 and December 13, 2010 contrary to s. 733.1.
[^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), 2003 CanLII 4187 (ON CA), 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 (S.C.J.) at paras. 16-26
[^7]: 2013 ONCA 147 at para. 8
[^8]: See: R. v. Summers, supra at para. 37