Her Majesty the Queen v. Damion Hamilton, 2013 ONSC 1969

COURT FILE NO.: 13-30000360 13-30000359

DATE: 20130611

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DAMION HAMILTON

Tania Monteiro, for the Crown

David Smith, for Damion Hamilton

HEARD: May 24, 2013

SPIES J. (Orally)

REASONS FOR SENTENCE

Overview

1On May 22, 2013, the defendant Damion Hamilton was found guilty by a jury of possessing a loaded restricted firearm contrary to section 95(1) of the Criminal Code. He was also found guilty by the jury of possessing this firearm knowing its possession was unauthorized contrary to section 92(1) of the Criminal Code, as well as possession of the firearm without being the holder of a licence contrary to section 91(1) of the Criminal Code.

2Following the jury’s verdict, I dealt with the remaining charges set out in a separate indictment that had been severed from the first to avoid prejudice to Mr. Hamilton. With respect to that indictment he reelected trial by judge alone and entered pleas of not guilty to the charges. Mr. Hamilton agreed however, to abide by the verdict of the jury for the purpose of these offences. As the jury clearly found that he was in possession of a firearm, I found him guilty of two counts of possession of a firearm while he was prohibited from doing so by reason of orders made pursuant to section 109 of the Criminal Code contrary to section 117.01(1). One order was made by the Ontario Court of Justice on June 6, 2009 and the other by Backhouse J. of this court on January 27, 2011. In addition I found Mr. Hamilton guilty of failing to comply with a term of his probation order imposed by Backhouse J. in that he failed to abstain from acquiring or possessing a firearm, contrary to section 733.1(1) of the Criminal Code. He is now before me for sentencing.

3The Crown asked that the charge for simple possession of the firearm without being the holder of a licence be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. I agree that this is appropriate.

The Facts

(a) Circumstances of the Offences

4In finding Mr. Hamilton guilty of possession of a loaded restricted firearm, the jury must have accepted the theory of the Crown that on May 22, 2012, at approximately 10:30 p.m., Mr. Hamilton left the Oxford Pub in the Knobhill Plaza in Scarborough with a loaded restricted firearm tucked into the waist area of his pants. Two uniformed officers in a marked scout car blocked Mr. Hamilton’s path as he was walking through the parking lot of a bowling alley on Eglinton Avenue East. When those officers exited their car and approached Mr. Hamilton and told him to stop and put his hands up, Mr. Hamilton ran. He was pursued by a number of officers through a housing complex at 2774 Eglinton Avenue East in Scarborough. While Mr. Hamilton was running along a grassy laneway which had a tall wooden fence along the backyards of one side of the townhouse complex, he threw the handgun over the fence. It landed in a vegetable garden of one of the townhouses occupied by a husband and wife and adult relative. After Mr. Hamilton was arrested, the firearm was retrieved by police.

5The firearm in question is a 9 mm Glock similar to the police issued Glocks. It is capable of being fired by the use of only one hand. It was loaded with ten rounds of ammunition in the magazine. No bullet was found in the chamber. The firearm was in working order.

(b) Circumstances of Mr. Hamilton

6Mr. Hamilton was born in Jamaica in 1981 and is 31 years old. He came to Canada in 2003 at the age of 22. His mother came to Canada in 1995 and left him in Jamaica with his older brother who was two years older. Mr. Hamilton’s older brother died in 2003 which left him with no family in Jamaica. By this time his sister was in Florida. His father was “never in the picture”. Mr. Hamilton finished high school in Jamaica and then started working. When he arrived in Canada he worked in a perfume factory for about three years and then for a plastics company for about four years.

7Mr. Hamilton was at the Oxford Pub to visit his girlfriend. He had a daughter with this woman who was born last September but unfortunately he has never met his daughter. This woman is no longer in his life and has no contact with him.

8Mr. Hamilton was convicted in June 2009 of trafficking in a Schedule I substance, namely cocaine, and he was sentenced to three months pre-sentence custody plus one day and a mandatory section 109 prohibition order. In January 2011, he was convicted by Justice Backhouse of possession of a prohibited restricted firearm with ammunition contrary to section 95(1) of the Criminal Code and was sentenced to time served of 49 months and a mandatory section 109 prohibition order. He received the same sentence to run concurrently to the other convictions of that date, namely possession of a firearm knowing the serial number has been tampered with, two counts of possession of a firearm or ammunition contrary to a prohibition order, possession of a prohibited or restricted weapon knowing its possession is unauthorized, possession of a Schedule II substance, namely marijuana, and three counts of failure to comply with recognizance. In addition to time served he received probation for three years.

9Mr. Hamilton has permanent resident status in Canada. A deportation order was made as a result of the decision of Backhouse J. There was an unsuccessful inmate appeal of that decision. As a result a deportation order with no right of appeal was made. This means that Mr. Hamilton will be deported back to Jamaica when he is released from custody.

10Mr. Hamilton’s mother was present in court for every day of the trial. She also attended the sentencing and provided a letter to the court. Needless to say her letter was written with great sadness as a mother. She migrated to Canada from Jamaica and left her son behind in order to make a better life for him. Mr. Hamilton joined her in 2003 and they were reunited. She states that her son quickly found work and continued to work right up to the time of his arrest. He has always been very supportive of her and she speaks of his support when she was diagnosed with breast cancer. She states that she knows with all her heart that the twelve months her son has spent in jail has given him time to reflect on his life and the turn it has taken. She pleads for leniency and asks that I give her son a second chance in life as she is sure this time he will do things differently.

11I also received a letter from Mr. Hamilton’s older sister who lives in Florida. She also asks that I give her brother leniency. She says they grew up in Jamaica and she and her two brothers’ lives were difficult without a father figure to guide them. This affected Damion most of all particularly after the sudden death of his brother to sickle cell disease. This brother had been Damion’s only father figure. In her view her brother has many attributes that make him a good person. She believes that he has realized his mistakes and wants a second chance to change his life for the better.

12Mr. Hamilton made a statement to the court which I have also considered to determine whether or not there is any evidence of remorse. He said that this is not how he intended it to be; that he was with the wrong crowd and made mistakes. However, he stated that he accepts the consequences and choices he made in life and realizes that he has “to do my journey.” He asked me for leniency. Mr. Hamilton acknowledged that he disappointed his mother who brought him to Canada so that he could be a better man. He apologized directly to his mother most for what he had cost her from this experience and shame.

Legal Parameters

13The Crown served notice that an increased sentence would be sought because Mr. Hamilton had previously been convicted of possession of a loaded weapon. The starting point with respect to the charge of possession of a loaded restricted firearm in this case therefore, is the mandatory minimum of five years and a maximum of ten years pursuant to section 95(2) of the Criminal Code. The conviction for possession of the firearm knowing its possession was unauthorized attracts a minimum sentence of one year and a maximum sentence of ten years pursuant to section 92(3)(b) as this was Mr. Hamilton’s second conviction for this offence. The two convictions for possession in breach of a prohibition order are subject to a maximum sentence of ten years pursuant to section 117.01(3) of the Criminal Code. The conviction for failure to comply with a condition of his probation order has a maximum sentence of two years pursuant to section 733.1(1) (a) of the Criminal Code.

Positions of Crown and Defence

14The Crown seeks a sentence of eight to ten years globally for all offences. She submits that the appropriate sentence for the possession of the loaded restricted firearm is between eight to nine years. With respect to the breach of the prohibition orders and breach of recognizance, she submits that the sentence be in the range of twelve to eighteen months but run consecutively to the firearm’s sentence. She also seeks a section 109 order for life, a DNA order and a forfeiture and destruction order of the firearm and ammunition.

15Mr. Smith’s position is that the appropriate sentence in this case should approach the statutory minimum of five years, largely because of the fact that Mr. Hamilton will be deported. He submitted that an additional year for the breach of prohibition orders and breach of probation would be appropriate. Mr. Smith had no difficulty with the ancillary orders requested by the Crown save he submitted the weapons prohibition order should be for only 20 years.

Case Law

16Both counsel relied upon case law in support of their positions. The Crown’s cases are as follows:

R. v. Brown, 2010 ONCA 745, [2010] O.J. No. 4707 (Ont. C.A.)

17In this case the Court of Appeal found a sentence imposed by the trial judge of five and one-half years imprisonment in addition to pre-sentence custody of six months for a third conviction of possession of a firearm was outside the appropriate range. The court did not take issue with the one year sentence imposed for breach of a firearms prohibition order save that it was to be served consecutively, not concurrently to his other sentence. The offender was arrested at gunpoint as he was entering a car. Upon his arrest he told police that he had a handgun secreted down the front of his pants. One round was in the chamber of the handgun and eight additional rounds were in the magazine. There was additional ammunition in the offender’s rear pant pocket. The trial judge had concluded that a global sentence of about eight years was appropriate but reduced it because the offender had pleaded guilty and cooperated with police and there was no indication he was involved in other criminal activity at the time.

18Although the Court of Appeal did not disagree with these factors, the court held that the more significant feature of these offences was that the offender was “moving about in the community with a fully loaded lethal weapon at the ready – and doing so despite court orders prohibiting him from possession a firearm” (at para. 7). At the time of his arrest the offender was bound by two lifetime firearms prohibition orders arising from two prior sets of convictions for firearms offences. He was still in Canada despite a deportation order and the court held that this and his criminal record which consisted of 34 convictions demonstrated his “incorrigibility as an offender”. (at para. 8)

19At para. 14 the court stated that first and foremost the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public. A sentence of seven and a half years less six months credit for pre-sentence custody was imposed for possession of the firearm in addition to the one year to be served consecutively for breach of the firearms prohibition orders.

20I agree with Mr. Smith that the fact this offender was being sentenced for his third firearms conviction and the fact that the firearm was ready to be fired in that there was a bullet in the chamber are important distinguishing factors from the case at bar. Furthermore, the record of the offender is otherwise also much more serious and he was in Canada illegally in breach of a deportation order. The offender, however, did plead guilty which was an important mitigating factor.

R. v. McCue, (2012) ONCA 773

21The facts in this case are quite similar to the facts in the case at bar. Mr. Smith agreed that the McCue case is the closest on point but submitted there were a serious number of counts that the offender was convicted of. In this case the police were looking for the offender and saw him leave his residence and enter a taxi. They followed the taxi and when he got out he fled the scene. The police chased him through several backyards and eventually apprehended him. A police search of the route followed led to the discovery of a loaded semi-automatic handgun in the backyard of one of the homes. The court concluded that the offender had thrown the gun away as he fled from police.

22The Court of Appeal disagreed with the finding of the trial judge that these facts could be characterized as a “minimal situation” and imposed a sentence of four years for the possession of a loaded prohibited firearm conviction (this was a case where the three year minimum applied) and a further six months for a robbery conviction and 90 days for a mischief conviction, both consecutive to the other sentence. The court found (at paras. 15 and 16):

The respondent had a loaded gun when he left his residence and travelled in a taxi. He clearly intended to have the gun on his person in public places. His possession of a loaded firearm while attempting to escape the police is a significant aggravating factor. He gets no credit for throwing the gun away while attempting to avoid capture. Furthermore, discarding a loaded handgun in someone’s backyard in a highly populated residential area invites tragedy. Had the police not located the loaded gun, who knows what might have happened? Finally, we see no reason to infer anything other than that the respondent intended to “actively use” the loaded gun for some purpose if he saw the need. Why else would he have it in his possession? …

The circumstances of the offence called for a significant sentence. [Emphasis added]

23I note that in this case, in similar circumstances, the sentence imposed by the Court of Appeal was one year over the minimum. This provides some guidance to me in this case.

R. v. Newell, [2012] O.J. No. 4014

24In this case the offender was 31 years old and he had an extensive criminal record dating back to 2000 including possession of a weapon on three prior occasions. On one of those occasions the weapon was an imitation. There were a number of other convictions for breaching court orders and matters of that nature although there were no crimes of violence on his record. The court found that rehabilitation was not a significant factor in that Mr. Newell had been given repeated chances and lenient sentences in the past to no avail. This was a case where the offender had also been found in possession of marijuana and had a long term and serious problem with marijuana use.

25Justice Molloy found virtually no mitigating factors; the most that could be said was the absence of some aggravating factors. Those included the fact there was no history of violence, no evidence that the offender had used the weapon in the commission or intended commission of an offence, no indication of gang activity or trafficking guns and no hard drugs. Unlike the case at bar, this was the third time the offender had been caught in public with a loaded handgun in his possession, (at para. 14). The aggravating factors included the fact there was a bullet in the chamber, the offender lied to police about his identity, the weapon was concealed in his waistband and the arrest occurred on a weekday morning in a residential area near two schools, (at para. 13).

26Molloy J. concluded that given the five year minimum sentence and the serious aggravating factors, that the appropriate sentence for the concealed weapons offence; was seven and a half years. She sentenced the offender to four years concurrent on the other firearms charges. A six month concurrent sentence was imposed for the marijuana possession. The sentencing for breach of the prohibition order was imposed consecutively for a further one year each on two counts running concurrently with each other. Accordingly, Justice Molloy sentenced the offender to eight and a half years imprisonment less time served resulting in a sentence of six years and 164 days. At para. 27 Molloy J. stated:

I recognize that this sentence may seem harsh and may even fall somewhat outside the typical range. However, Mr. Newell has shown himself to be completely undeterred by any kind of rules or court orders. At some point, the only workable option for the protection of the community is to keep Mr. Newell out of that community. That point has been reached.

27This case perhaps most clearly illustrates the fact that the position of the Crown that the appropriate range of sentence in this case is simply not accurate. The offender had a serious record and this was the third offence for possession of a loaded firearm. Even so Molloy J. commented that the sentence she imposed of seven and one half years was harsh and possible outside the typical range. Whether that was so or not in light of Brown, in light of this decision a sentence of even seven years would be too high in my view.

Other Cases

28In addition the Crown relied upon observations made by various courts as follows: R. v. Felawka, [1993] 4 S.C.R. 199 where Cory J. observed that “no matter what the intention may be of the person carrying the gun, the firearm itself presents the ultimate threat of death to those in its presence”. And R. v. D.(Q.) (2005), 199 C.C.C. (3d) 490 (Ont. C.A.) where the Ontario Court of Appeal fully endorsed a comment by the trial judge:

Death by firearms in public places in Toronto plagues this City and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.

29The Crown also relied upon the observations of Aston J. in R. v. Elliston, 2010 ONSC 6492, [2010] O.J. No. 5152 where at para. 15 he rejected the submission of counsel for the defendant that there are no actual adverse consequences that necessarily flow from the simple possession of a firearm as opposed to its actual use. Aston J. concluded that:

…because the risk is so grave that people will be seriously injured or killed, even when discharging the gun is not intentional, the gravity of the offence of simply possessing the weapon should not be underestimated in my view. …Even where mere possession of a loaded handgun only poses a relatively small chance of harm in the particular circumstances, the magnitude of the potential harm makes the risk substantial.

30Mr. Smith relied upon the following cases:

R. v. Lambert, [2011] O.J. No. 3389

31In this case the offender had three prior gun related convictions as well as 45 other criminal convictions. He had been convicted of possessing seven guns in a safe house. Of the seven guns, three were fully loaded handguns with bags of ammunition, two were sawed-off shotguns with readily accessible ammunition and two were rifles with readily accessible ammunition. Justice Kelly concluded that a sentence of nine years for the possession of seven firearms to run concurrent would be sufficient to achieve the goals of sentencing. She considered the offender’s youth (21) and the fact that there was some prospect for rehabilitation. This was also a case where the offender had been found guilty of trafficking in crack cocaine. A further two year sentence to be served consecutively was imposed for that conviction. In addition a consecutive sentence of one and a half years was imposed for possessing a gun in violation of a prohibition order. There was also a six month sentence imposed for trafficking in ammunition which was to run consecutively as well. This resulted in a sentence of 13 years with a credit of 40 months for pre-sentence custody on a two for one basis.

32The only relevance of this case in my view is that despite the offender’s criminal record and the number of convictions the offender was not sentenced to the ten year maximum for the firearms offences. Again it illustrates that the position of the Crown is unreasonable.

R. v. Duhamel, [2013] O.J. No. 936

33In this case the offender was found guilty of a total of thirteen firearms, ammunition and drug related offences. When the offender saw police at his apartment he grabbed a plastic bag containing the contraband articles and threw it over the fence around the deck. The offender was 24 years old at the time of sentencing with a significant youth and adult criminal record. He was subject to at least one weapons prohibition order at the time he committed the present firearms offences. He was also on bail.

34Justice Campbell concluded that even though the offender had previously been convicted of a firearms offence, and ordinarily liable to a mandatory minimum sentence of five years imprisonment, the Crown had not met the notification requirement contained in section 727(1) of the Criminal Code. As such, K. L Campbell J. concluded the mandatory minimum sentence was three years imprisonment. A significant aggravating circumstance in that case was that the offender was engaged in the business of selling cocaine and employed an illegal loaded firearm to assist him in that unlawful enterprise which is not the case here. In the end the firearms offence attracted only a three year sentence with the other sentences to run consecutively for an effective sentence of seven years imprisonment. It seems that the sentence for the firearms offence is low in order to accommodate the fact that Campbell J. considered a global sentence of seven years to be appropriate.

35Mr. Smith also relied on two cases in support of his position that I should take into account the fact that Mr. Hamilton will be deported as soon as he completes his sentence:

R. v. Critton, [2002] O.J. No. 2594 (S.C.J.)

36In this case Justice Hill, at paras. 77-86, considered whether or not the offender’s deportation was relevant to the imposition of punishment either as a mitigating factor or a consideration capable of tempering the severity of the sentence to be imposed. At para. 77 he noted that the jurisprudence is not entirely uniform as to the legal significance of an accused’s pending deportation. He concluded, after a review of authorities between 1970 and 1999, that he preferred the view that the offender’s deportation be a factor which can, in some circumstances, serve to mitigate the severity of the sanction imposed by the court, at least when the offender was not in Canada illegally. He concluded that deportation is relevant to sentencing in at least three respects, namely the risk of incomplete rehabilitation on release from custody is not a risk imposed on the Canadian people, frequently the offender serves harder time in that he is incarcerated a significant distance from his family who is resident in a foreign country and Canadians are spared considerable expense of continued incarceration in the range of $67,000 per year.

R. v. Lakatos, [2011] O.J. No. 1822 (Ont. C.A.).

37In this case the trial judge imposed a conditional sentence mistakenly believing that the offender would be able to serve his sentence in the community. At para. 23 the Court of Appeal concluded that since a fit sentence is one that usually describes a range of appropriate sentencing responses the issue of deportation can be considered in tailoring the sentence to best fit the crime and the offender. This includes a consideration of the real impact of a sentencing decision. The court concluded that the trial judge would have imposed a sentence that minimized any period of incarceration had he known that the offender would be deported immediately upon completion of his sentence.

38In reply, Ms. Monteiro relied on a decision from the Supreme Court of Canada; R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100, which I believe is now the leading authority on this issue. In that case the court reduced a sentence imposed by the trial judge of two years to two years less a day to avoid deportation of the offender. Although the trial judge’s decision was in accordance with a joint submission, apparently neither counsel nor the trial judge was award that the sentence would result in deportation.

39The court concluded (at para. 11) that any consequences that impact on the particular offender before the court, which would include deportation, may be taken into account as personal circumstances of the offender. They are not strictly speaking mitigating factors but

[t]heir relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders…Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility fo the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.

However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. (at paras. 11 and 12)

40The court went on to caution however that collateral consequences related to immigration may be relevant to “tailoring” a sentence (at para. 13) but they can not be misused by imposing a sentence outside the appropriate range of sentence in order to avoid the collateral consequences intended by Parliament. (at para. 15) As I understand the decision then, to the extent deportation is a relevant consideration in a particular case, it may permit an adjustment of a sentence that is still in the appropriate range but it does not permit the court to impose a sentence outside the range.

41I note that in this case Mr. Smith did not suggest, nor could he, that the consequence of deportation could be avoided by tailoring an otherwise appropriate sentence. He did not challenge the fact that the minimum sentence in this case is five years.

Principles of Sentencing

42The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence I must take into account the principle of proportionality in s. 718.1; the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender, and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

Determination of a Fit Sentence

43Considering first the aggravating factors relevant to sentence in this case, Ms. Monteiro relies on Mr. Hamilton’s criminal record, and in particular the fact that at the time Mr. Hamilton committed these offences he had been out of jail for only about sixteen months and he was subject to two weapons prohibition orders and the probation order of Backhouse J. Furthermore, Ms. Monteiro submitted the circumstances of the firearm offence before Justice Backhouse are very similar to the facts in this case, see R. v. Hamilton, [2010] O.J. No. 5578. Mr. Hamilton was chased by police and while they were in pursuit of him he threw a loaded firearm in the area of a public school. It landed on the roof of the school and broke into pieces. He was sentenced to just over four years based on time served. Although the judgment is available, the sentencing decision has not been reported. It appears that he had served actual time of two years and presumably was given a two for one credit.

44Mr. Smith, however, submitted that a number of the aggravating factors relied upon by the Crown are subsumed into the five year minimum sentence that must be imposed and that they can therefore not be considered aggravating factors.

45I agree with Mr. Smith that I must be careful not to consider as an aggravating factor a matter that is already taken into account in the minimum sentence in this case. That obviously means that I cannot consider Mr. Hamilton’s conviction by Backhouse J. of a firearms offence as an aggravating factor that would increase the appropriate sentence in this case beyond the minimum of five years. However, I think the fact that the convictions found by Backhouse J. were relatively recent and the fact that the circumstances of the offences in both cases are similar are relevant considerations.

46I have no information about Mr. Hamilton’s first criminal conviction save that it did not include a firearm. That conviction was for an offence that occurred over four years ago. It is a serious conviction but is not a crime of violence. Furthermore, there is no evidence that Mr. Hamilton has been trafficking in cocaine since that time.

47Ms. Monteiro also submitted that the aggravating circumstances in this case included the fact that Mr. Hamilton was in a bar with a loaded firearm and he admitted to drinking at the bar. She suggests that drinking and having a firearm in a public place is a “deadly combination”. I agree with this proposition generally but it is not clear from the evidence when Mr. Hamilton had the firearm. There is no evidence that he had it when he arrived or when during the course of the evening he obtained it. There is, therefore, no evidence that he had the firearm in his possession for any appreciable time while he was inside the bar. However, it is clear that Mr. Hamilton had the firearm by the time he left the Oxford Pub as there is no suggestion from the evidence that someone passed it to him after he left. At that point, while still at the pub, Mr. Hamilton secreted the loaded firearm somewhere in the waistband area of his pants. Fortunately, there was no bullet in the chamber which could have been unintentionally discharged.

48I do agree with Ms. Monteiro’s submission that walking in public along a busy street with another male and then running while being chased by police through a residential complex and then throwing the firearm into a residential backyard are extremely aggravating factors; see Brown at para. 7 and McCue at para. 15. Ms. Monteiro also relied on the fact that the officer who found the firearm testified that the trigger was slightly depressed into the dirt which he thought was a potential safety hazard. That, however, presumed the firearm had a bullet in the chamber which the officer could not determine and turned out not to be the case. Nevertheless, it is extremely fortunate that the police found the firearm first. Although the homeowner did not have any children, he did have a wife and sister living with him. Obviously serious injury could have occurred had the firearm not been seized by police.

49Ms. Monteiro also pointed out that Mr. Hamilton lied under oath when at trial he testified that he was not a “carrier of guns” and that he didn’t know anything about weapons. She submitted that this also shows that Mr. Hamilton shows no remorse. I agree that this is a relevant factor in considering Mr. Hamilton’s character and is relevant to specific deterrence.

50As for mitigating factors, Mr. Hamilton cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea. This is a neutral factor. Notwithstanding his evidence at the trial, given his statement to the court, I am satisfied that Mr. Hamilton is genuinely sorry for the harm he has caused his mother. Although this apology seemed sincere, I expect that he felt the same after he was convicted by Backhouse J. of the same offences. It seems that the fact Mr. Hamilton does not want to cause his mother pain has unfortunately not deterred him from repeating this criminal conduct. In his statement to the court Mr. Hamilton did not take responsibility for or apologize for his actions, but I assume that he is preserving his right of appeal which, of course, is his right.

51There are no mitigating factors to consider. However, as in the case of Newell, it can be said that aggravating factors sometimes present in other cases are not present in this case. Mr. Hamilton has no history of violence; his criminal record is limited to three sets of offences, there is no evidence that he used this firearm in the commission or intended commission of an offence, no indication of gang activity or trafficking guns and no presence of hard drugs. It is also a consideration that there is no evidence that Mr. Hamilton was involved in any other criminal activity at the time. Nothing illegal was found in his backpack and after hearing what Mr. Hamilton’s explanation was for what he did have in his pack, Ms. Monteiro abandoned her submission that the items in the pack were not innocent. Nevertheless, although the firearm was not immediately ready to be fired, as the Court of Appeal said in McCue at para. 15, there is no reason to infer anything other than Mr. Hamilton had the firearm for some purpose if he saw the need.

52Mr. Smith submitted that I should consider the fact that Mr. Hamilton faces deportation as a strong mitigating factor. As soon as he completes his sentence he will be returned to Jamaica where he has no family and no place to live. Although he grew up there, he has spent the last decade; his years as a young adult, in Canada. Considering these facts, and in particular the second factor referred to by Hill J. in Critton at para. 86 (2), Mr. Smith argued, by analogy, that Mr. Hamilton’s deportation will be a huge consequence as a result of Mr. Hamilton’s convictions.

53In light of the comments in Pham that I have referred to, I find that the deportation cannot be a mitigating factor as suggested by Hill J. in Critton but it is a factor that is relevant when I consider the personal circumstances of Mr. Hamilton and the prospect of his rehabilitation. Although I recognize that the deportation order was already a consequence after the convictions by Backhouse J. once they became final, there was no suggestion that she was asked to take this consequence into account in sentencing Mr. Hamilton. In my view I can consider the fact that Mr. Hamilton will likely be forever separated from the daughter he has never seen and will certainly be separated from his own mother. He is returning to a place he has been absent from for many years without any family or support to help him adjust to a new life. Although this consequence cannot be avoided, it seems likely that the sooner he can begin to build his life again in Jamaica the more likely he will be able to follow through on his goal of moving forward and living a productive life.

54Mr. Smith also submitted that I must consider the jump principle. Mr. Hamilton has not served any time in the penitentiary. That principle suggests that there should not be too great an increase in subsequent sentences imposed on an offender over a previous sentence imposed on the same offender. However this principle has less relevance when denunciation and deterrence, rather than rehabilitation are the principal objectives of sentencing; see R. v. Robitaille, [1993] B.C.J. No. 1404 (C.A.). In this case Mr. Hamilton’s longest sentence is time served of 49 months but that was based on a two for one credit. In this case given the seriousness of these convictions, coupled with the mandatory minimum and the fact that this is Mr. Hamilton’s second offence, even though rehabilitation is still a consideration, there is little room for application of the jump principle. Even just the minimum sentence will have to be served in the penitentiary.

55I turn then to what is an appropriate sentence in this case. Clearly denunciation and deterrence, both general and specific, are paramount considerations in this case. In Brown, the Ontario Court of Appeal stated (at para. 14) that “[h]andguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.” To the same effect are the words of Nordheimer J. in R. v. J.G., [2005] O.J. No. 4599 where Nordheimer J. commented that the objectives of denunciation and deterrence are of primary importance when dealing with firearms offences and that citizens in Toronto are “understandably appalled at what appears to be a proliferation of handguns in the city”. (at para. 36)

56Although I agree that the principles of denunciation and deterrence are of primary importance in this case, I should not lose sight of the prospect of the rehabilitation of Mr. Hamilton. There is still hope that he will have learned from his serious mistakes and that he will not fall down the path of the others who lead a life of crime, in and out of jail. The fact that Mr. Hamilton has only one earlier conviction, before these last two series of firearms convictions, and the fact that he is still relatively young gives me some hope that he can turn his life around. Although being returned to Jamaica will be a frightening prospect it will give him a chance to start afresh. He has demonstrated a desire and ability to work in this country which hopefully will help him establish himself in Jamaica.

57I have carefully considered the sentences imposed in the cases relied upon by the Crown. In both Brown and Newell the court was sentencing an offender with two prior possession of firearm convictions and the criminal record of the offender demonstrated, as the court put it in Brown, that the offender was incorrigible. In both of those cases the firearm was ready to be fired. These are all important aggravating features not present here. The position taken by the Crown that the appropriate range is eight to nine years in my view is too high. In fact in light of the authorities that I have been referred to I would have to say it is unreasonably high. It leaves very little room for offenders who have multiple convictions for possession of firearms with serious criminal records, given the maximum sentence is ten years.

58In my view, the appropriate range for sentence in this case is six to six and one half years. A sentence higher than the minimum of five years is required because of the aggravating factors I have referred to. The main aggravating factor is the fact that Mr. Hamilton had a loaded firearm in a public place and he ran with it and tossed it into a yard of a home where had it not been found by police, the outcome could have been tragic. This however is his second firearms conviction, not his third and there is an absence of aggravating factors often found in these cases. There is a prospect of rehabilitation in my view. Given Mr. Hamilton will be deported I consider it appropriate to reduce his sentence to the low end of the appropriate range since he will have a harder time than most in rehabilitating himself as he will have to do so on his own in Jamaica. The younger he is when he sets out to do this, as I believe he will attempt to do, the better.

59I have considered all of the factors that I have referred to. In my view a total sentence of six years for possession of the loaded restricted firearm is appropriate in all of the circumstances of this case.

60As for the two convictions for breach of section 109 weapons prohibition orders, as the Court of Appeal said in McCue at para. 22, I have two options. I can take them into account as a significant aggravating factor in determining a fit sentence for the possession of a loaded restricted firearm and impose a concurrent sentence or ignore these convictions when determining that sentence and impose a consecutive sentence for these convictions. I have the same options with the failure to comply with a term of his probation.

61In my view, given there are two orders that were breached as well as a breach of the probation order of Backhouse J., a sentence of 18 months on each conviction, with each sentence to be concurrent to the other, is appropriate. Furthermore those sentences will be made consecutive to Mr. Hamilton’s sentence for possession of the firearm to bring home to him the fact that breach of court orders will result in severe consequences. In imposing a consecutive sentence however, I must consider the totality principle and ensure the sentence as a whole is fit and proper.

62On this basis Mr. Hamilton faces a total sentence of seven and one half years subject to credit for pre-sentence custody. These convictions give rise to a more serious sentencing level than Mr. Hamilton’s previous convictions. However, I have concluded that the jump principle has little relevance in this case. The jump principle cannot result in a sentence that inadequately addresses the other principles of sentencing and fails to take into account the seriousness of these offences.

63In my view this sentence does not exceed the culpability of Mr. Hamilton for these offences. Although this sentence is almost double the longest previous sentence imposed on Mr. Hamilton, and this will be his first time in the penitentiary, much of the sentence is determined by the five year mandatory minimum for possession of the firearm. Furthermore, as already stated, a consecutive sentence for breach of the prohibition orders and probation order is necessary to bring home to Mr. Hamilton the importance of complying with court orders.

64Ms. Monteiro suggested a global sentence for all convictions and neither counsel provided any authority for what might be an appropriate sentence with respect to the other convictions. A separate sentence for these other convictions must be imposed and in my view those sentences should run concurrently to the other sentences.

65As for the ancillary orders, and Mr. Smith’s position, in my view given that Mr. Hamilton was subject to two section 109 orders at the time of these offences, a lifetime ban is appropriate. I have no difficulty with the other ancillary orders requested by the Crown.

Pre-Sentence Custody

66Mr. Hamilton has been detained at the Toronto East Detention Centre (“TEDC”) since his arrest on May 22, 2012 so he had been in jail for exactly one year by the time of the sentencing hearing. As of today he has been in custody for an additional three weeks. Mr. Smith asked that Mr. Hamilton receive enhanced credit for his pre-sentence custody. Mr. Smith did not file any evidence in support of this application. He stated that he was not seeking enhanced credit due to onerous living conditions in the TEDC. He relies solely on the fact that Mr. Hamilton, by insisting on his right to a trial, lost some of the benefit of statutory release at the two-thirds of his sentence point. Mr. Smith relies on R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068 (Ont. C.A.) in support of his position.

67Ms. Monteiro’s position is that this is not an appropriate case for enhanced credit for pre-sentence custody. She relies on R. v. Morris, 2013 ONCA 223, [2013] O.J. No. 1583 a case from the Court of Appeal that was decided after Summers. She submitted that I can conclude that in the circumstances of this case Mr. Hamilton would have been detained due to his criminal record.

68In Summers the court considered the many conflicting decisions on the interpretation of section 719(3.1) of the Criminal Code and concluded (at para. 8) that “on a proper record, the relevant circumstances that may justify this enhanced credit [1.5:1] include ineligibility for remission and parole while in remand custody.” There was no suggestion that the offender’s remand conditions were particularly harsh or oppressive in that case. The basis for the trial judge’s decision to grant enhanced credit was based on the unavailability of parole eligibility while in remand custody, (at para. 6). The court went on to say that:

…nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case. (para. 117, emphasis added)

69At para. 123 the court stated that the provision of information relevant to a claim for enhanced credit need not be an onerous task and referred to a number of factors that could be supported by evidence or the submissions of counsel and at para. 124 the minimal evidence that was before the trial judge in that case. I will come back to this.

70In considering the issue of enhanced credit on the basis of ineligibility for remission and parole while in remand custody, the court in Summers stated (at footnote 4 to its decision):

Under s. 127(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 the statutory release date of an offender who is serving a penitentiary sentence is the day on which the offender completes two-thirds of the sentence. Under s. 120 of the same statute, an offender is eligible for full parole beginning one-third of the way through sentence or seven years of the sentence, whichever is lesser. By the combined effect of the rules governing statutory release and parole, an offender is eligible to be granted parole anywhere between one-third and two-thirds of the way through the completion of sentence. Earned remission, on the other hand, is governed by the Prison and Reformatories Act, R.S.C., 1985, c. P-20. Generally earned remission is available to an offender between one-third and two-thirds of the way through sentence, depending on the offender’s behaviour while in custody and his or her rehabilitative prospects. An offender earns remission credit by obeying prison rules and by participating in available programs while incarcerated. (Emphasis added)

71The court in Summers also approved of the trial judge’s finding that the vast majority of people are granted parole somewhere between one-third and two-thirds of their sentence with more of them being towards the one-third mark, (at para. 22).

72In Morris the court concluded that the trial judge had erred in her interpretation of section 719(3.1) of the Criminal Code in light of the Summers decision, but upheld the sentencing decision. The court noted that the trial judge reasoned that although the offender was not detained in custody under subsections 524(4) or (8) the circumstances were analogous to those provisions and therefore did not justify enhanced credit. The Court of Appeal agreed with this conclusion. The court held (at para. 19) that the trial judge was required to take into account all of the circumstances, which in that case entitled the trial judge to take into account the fact that the offender was on bail and bound by a weapons prohibition order when he was arrested on the offences for which he was convicted.

73Because Mr. Hamilton has been subject to a deportation order he never sought to be released on bail for these charges since he would not have been released because of that order in any event. There is, therefore, no order pursuant to section 515(9.1) of the Criminal Code that states that Mr. Hamilton has been detained in custody primarily because of a previous conviction. This is, therefore, not a case where section 719(3.1) applies which would preclude any consideration of enhanced credit. Furthermore, Mr. Hamilton was never detained under subsection 524(4) or (8) as he was not out on bail when these offences occurred, which would also automatically preclude any enhanced credit.

74The only evidence I have as to Mr. Hamilton’s behaviour while he has been in custody came from the Court Supervisor of the cells who was in contact with TEDC at the start of the trial. He did so because of the Defence application to allow Mr. Hamilton to sit at the counsel table. I was advised at that time that there had been one incident involving Mr. Hamilton and a number of other inmates. I was told there was a security concern but was not given further details. I deferred to the Court Supervisor in dismissing the application but made no factual findings.

75In considering the various factors noted by the courts in Summers and Morris, I observe the following:

(a) Mr. Hamilton had been released but was subject to a probation order which he breached when he had a firearm in his possession. Furthermore, he was in breach of two weapons prohibition orders.

(b) Mr. Hamilton has a criminal record for a prior firearms possession offence but otherwise his record is short and has no convictions for any use of weapons or violence.

(c) Mr. Hamilton has a very supportive mother who was in court every day and he was working at the time of his arrest.

(d) Mr. Hamilton is relatively youthful.

(e) I have found that there is a prospect for rehabilitation.

(f) I cannot conclude that Mr. Hamilton would not have been released on bail, had it not been for the deportation order, if he had put forward a good plan for supervision and had a good surety.

(g) Mr. Hamilton cooperated with authorities when he was arrested. He cannot be faulted for maintaining his position that the firearm found by police was not his.

(h) Mr. Hamilton and the Crown brought this matter on for trial very quickly; within one year of the charges.

(i) Although there has been one incident involving Mr. Hamilton at the TEDC there were no charges arising from this incident and no way to determine the culpability of Mr. Hamilton. There is no suggestion that this incident could result in Mr. Hamilton forfeiting his statutory right under sections 120 and 127(3) of the Corrections and Conditional Release Act, to be eligible for full parole anywhere between one-third and two-thirds of the way through the completion of his sentence.

(j) As for earned remission, it is difficult to know if Mr. Hamilton will violate prison rules in the future and if so if and how that would impact on his ability to earn remission, pursuant to the Prison and Reformatories Act which depends on his behaviour while in custody and his rehabilitative prospects.

76In considering all of the circumstances of this case, given the fact that at a minimum Mr. Hamilton has lost his statutory right for full parole between one-third and two-thirds of his sentence and given that the time he has spent at the TEDC is dead time and does not count towards that eligibility, I find that an enhanced credit of 1.3 to 1 is appropriate; in this case a credit for an additional four months. He will, therefore, have pre-sentence credit in the amount of 16 months. As I said in R. v. Morant, 2013 ONSC 1969 at para. 51:

The fact remains that parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody and to that extent Mr. Morant has been prejudiced by his inability to plead guilty to these offences at a time closer to his arrest. As LaForme J.A. observed in R. v. Monje¹, in a case decided by the Court of Appeal after these amendment, “pre-sentence custody continues to be “dead time” for the same reasons Laskin J.A. noted in Rezaie [R. v. Rezaie (1996), 31 O.R. (3d) 713] and remains one of the most punitive forms of imprisonment in Canada”. (at para. 18)

Final Disposition

77Mr. Hamilton would you please stand.

78With respect to the conviction of possession of a loaded restricted firearm contrary to section 95(1) of the Criminal Code, Count #1 in the Indictment before the jury (“Count #1”), I sentence you to six years or 72 months.

79With respect to your conviction for possession of this firearm knowing you were not the holder of a licence to possess it, contrary to section 92(1) of the Criminal Code, I sentence you to two years, concurrent to your sentence on Count #1.

80With respect to your two convictions for breach of section 109 weapons prohibition orders, contrary to section 91(1) of the Criminal Code, and your conviction for failing to comply with a term of your probation, contrary to section 733.1(1) of the Criminal Code, I sentence you to 18 months for each conviction, each sentence to be concurrent to the other but all three to be served consecutively to your sentence on Count #1.

81As a result, your total global sentence is seven and one half years or 90 months. After giving you credit for pre-sentence custody on a 1.3 to 1 basis or 16 months, to be applied to your sentence on Count #1, you have 74 months or six years and two months remaining to be served.

82In addition there will be a mandatory weapons prohibition order pursuant to section 109(1) of the Criminal Code for life.

83In addition, there will be a DNA order pursuant to section 487.051(3) authorizing the taking of a DNA sample. The order shall apply to all counts.

84There will also be an order directing the forfeiture of the two firearms and ammunition that were seized by the police when they arrested you pursuant to section 491(1) of the Criminal Code.

85Finally, the charge for simple possession of the firearm without being the holder of a licence which is Count # 3 in the indictment that went before the jury will be stayed.

SPIES J.

Released: June 11, 2013

COURT FILE NO.: 13-30000360 13-30000359

Footnotes

1. 12011 ONCA 1