Overview

[1] On March 29, 2010, Gary Lalute Reid was arrested and charged with five firearms related offences and with possession of marijuana. I found Mr. Reid guilty on all of those charges on December 20, 2011.

[2] Against a background of extensive criminal activity extending back to 1988, the focus of this case is this offender’s repeated violation of our laws against possession of firearms and his failure to respect the four lifetime orders that have previously been imposed prohibiting him from possessing them.

[3] Going back to the first of these offences in 1995, it seems evident that one of the first things Mr. Reid has done soon after he has been released from custody is to procure another illegal handgun and ammunition. He may do so out of fear and allegedly to protect himself, but that cannot excuse his conduct under our law. It is plain that despite leniency that has been accorded to him in hopes of kick-starting rehabilitation in his life, when he has been sentenced for handgun possession and other offences on several earlier occasions, Mr. Reid has not heard or listened to the message that those previous sentences tried to convey to him.

[4] Mr. Reid has an extensive criminal background but he is not being sentenced for that, even though it may be an aggravating factor. Neither is he being sentenced here for having used a firearm in the course of committing other criminal behaviour. Rather, the issue here is simply what is a fit sentence for an offender who plainly has a continuing addiction to the possession of illegal handguns and a chronic inability to obey the orders that have been imposed on him for the past 17 years not to possess them? In my view, a very significant sentence is warranted and must be imposed as I will explain in the reasons that follow.

Summary of Background Facts relating to the Offences

Circumstances of the Offences

[5] Specifically, Mr. Reid was charged and convicted in this case of five offences. The firearms possession offences are possession of a loaded prohibited firearm (s. 95(1)), possession of a firearm knowing the serial number had been removed (s. 108(1)), possession of a firearm without being the holder of the license (s. 91(1)), possession of a firearm while prohibited from doing so (s. 117.01(1)), and failing to comply with the prohibition order (s. 733.1(1).

[6] There is a single intertwined set of facts that underlies all five of the convictions in this case. Mr. Reid was found to be in possession of a firearm that had ammunition in it, and a small amount of marijuana consistent with personal use. The events took place at the housing complex located at Grand Ravine and Driftwood Avenues in the northwest end of city of Toronto. Mr. Reid and a friend were visiting another friend who resided at that Metro Housing complex. They left their friends house intent on walking to a local convenience store to buy some cigarettes. At the same time, however, unbeknownst to them, members of one of the Toronto Police Service’s TAVIS teams, designed to patrol Metropolitan Housing Corporation properties as part of an anti-violence strategy, had coincidentally come to patrol the Driftwood and Grand Ravine housing complex.

[7] Mr. Reid and his friend left the friend’s townhouse and walked south along one of the two storey buildings containing those townhouse units, got to the end, turned around the corner and suddenly found themselves walking right face-to-face into a gathering of police officers. They were approached by the police officers. Initially, they kept their cool when the police officers spoke to them inquiring about who they were and where they lived. Initially, a cordial and cooperative discussion took place between them. Shortly after, however, as one officer was calling in to determine whether he had a CPIC record or was wanted on any outstanding charges, Mr. Reid turned and fled from the scene. The officers pursued him. As he took a sharp left turn while he ran away, a loaded firearm went flying from his waistband.

[8] Fortunately there were no injuries or gunshots fired that day, but this was good luck rather than good management. That was because after the handgun started to fall to the ground, Mr. Reid abruptly changed direction to try to get to the handgun before the officers could get to it. P.C. Stratton pulled out his gun and yelled “Police – don’t move!” At that same moment, another officer, P.C. Halagian drew his gun. He was ready and thought he would have to shoot Mr. Reid. As it turned out, P.C. Asner tackled Mr. Reid before he could reach the gun. The officers retrieved the handgun. It was made safe. As I said, good luck, not good management.

[9] In spite of these alarming facts, it could have been worse. Mr. Reid did not brandish the firearm, nor did he use it on that occasion to commit any other criminal offences or to intimidate others at that time. Neither is there any evidence that it was connected to trafficking of drugs such as crack cocaine. Nonetheless, as fortunate as that may be, the fact remains that at the time of his apprehension and arrest, Mr. Reid was carrying a concealed, illegal fully loaded handgun. The only purpose of such a weapon is to injure and kill people. He was carrying that deadly weapon in a public place. Plainly, he represented a great danger to the public as he casually headed towards a local convenience store for cigarettes through that Toronto housing complex that evening, a complex also frequented by old people, children and the innocent inhabitants who lived there.

Circumstances of the Offender

[10] Mr. Reid is now 38 years of age. He was born on March 9, 1975.

[11] There is much in Mr. Reid’s background that explains his gun-toting conduct, even if it cannot justify or forgive it. This is evident from his extensive criminal record. It can also be gleaned from information provided to the court by defence counsel about his earlier life involved in gang warfare, and from the detailed psychological assessment of Mr. Reid carried out by Dr. Judith Pilowski on January 18, 2013. Dr. Pilowsky is an experienced Clinical Psychologist. She focuses on issues relating to rehabilitation.

[12] There are two principal events that appear to inform Mr. Reid’s circumstances. The earliest formative element was the significant abuse he and his mother and siblings suffered at the hands of his father while being raised. So he became physically strong and was able to protect his mother and his siblings against his father by age 17. These events shaped his tendency to arm himself in order to ensure his safety in the world, after years of being placed in insurmountable circumstances, and lacking the control to protect himself, his siblings, and his mother. Those early experiences had enormous impact on him. They directed Mr. Reid towards believing that the appropriate response to violence and disagreements was further violence. He threatened his father with a pellet gun at about the age of 20. He learned that wielding a gun would give him optimal control and power to protect himself and others against even omnipotent figures, as Dr. Pilowsky describes it. It seems evident that it was these early experiences that first provided Mr. Reid with a sense of security that he could protect himself as long as he had a gun. It must be that same animus that underlies his repeated and largely remorseless possession of illegal handguns.

[13] Mr. Reid's upbringing was not abnormal. Despite the fact that he was brought up in a turbulent household and a community environment that he describes as violent and that Dr. Pilowsky describes as difficult, Mr. Reid’s upbringing was otherwise more normal. He learned the difference between right and wrong, was brought up with religious faith by his mother, and stayed in focus in school. He graduated from high school without ever being expelled or suspended. He evidently excelled at soccer and claims to have been recruited for a professional soccer team. He could have taken the other path, but instead he then succumbed to a “life on the streets” and went “from school to jail” – a tragic waste of the talents he appears to have had at his disposal.

[14] The second and third events of importance in forming his character took place when he was a victim of two shootings, one about 1990 and the second in December of 2003. He was evidently 15 or 16 when that the first incident occurred. He carries a metal rod in his leg to remind him of that event. He was 27 or 28 when the second occurred, when he was "gunned down" in the ongoing gang violence between the Galloway Boys and the Malvern group.

[15] By then, Mr. Reid was an active participant in the criminal life of the streets. He was involved in the gang warfare that was waged in this city in Scarborough between the so-called Malvern Gang and the Galloway Boys. Mr. Reid became the victim of a shooting that he survived. That is perhaps surprising given that he took a number of rounds and took some months to recover. However, he then identified his prior friend and the imputed leader of the "Galloway Boys", Tyshon Riley, as having been behind the attack. And that is when his gun related troubles truly started to multiply.

[16] About a year later, another gang-related murder took place. Mr. Reid came to believe that other individual had been shot by mistake, and that those bullets had been intended for him. He advised the police, and implicated Mr. Riley in the second shooting as well as a number of other gang-related shootings, thefts and criminal activity. Mr. Reid also assisted the police with interpreting wiretapped calls whose content indicated that his life was in grave danger. Mr. Reid claims to believe he was promised protection after making those disclosures, but that none was forthcoming.

[17] Mr. Reid suffers from migraines and from extensive pain in his right leg, the consequence of one of the two occasions when he was a victim of gunshots. He has a metal rod implanted in his leg. Although he has not been formally diagnosed with depression or anxiety, Dr. Pilowsky believes that he suffers from chronic post-traumatic stress disorder and depression associated with these turbulent and chaotic life-shaking events.

[18] Mr. Reid has been in a common-law relationship for some nine years. He states that his partner is struggling to raise their child independently while he remains incarcerated. He has four other children from three other relationships, two sons ages 21 and 12 from the first, a 17-year-old son from the second, a 16-year-old daughter from the third and the five-year-old son that is the product of his current relationship.

[19] The circumstances of his incarceration have significantly impacted his past and current life. The day after he was first put in custody on these charges, he was violently attacked in the Don Jail. Subsequent attacks led him to request that he be held in protective custody. He has been in that protective custody, attributable to having previously cooperated with police authorities, throughout the period of incarceration leading up to the trial and sentencing in this matter. Dr. Pilowsky reports that he has been emotionally volatility and angry. She attributes that to a lack of stability while growing up, and a sense of victimization arising from the alleged failure of police authorities to protect him, causing him to recant his statement, once initial disclosures were made to the police concerning gang activity some years ago.

[20] Mr. Reid feels denigrated because he is forced to share protective custody with the rapists and child molesters. He feels degraded in keeping forced company with such individuals and lacking the ability to socialize with others more like himself. He believes that if he is transferred to another institution where he is unable to have protective custody, it is likely that he would be killed.

[21] Dr. Pilowsky concludes that Mr. Reid is straightforward, genuine, and insightful into the elements that has led to his decision-making and his criminality, but feels trapped. She states that he expresses shame, embarrassment and remorse associated with his criminal history and the manner in which his life has unfolded. He assured Dr. Pilowsky that he no longer maintains gang affiliations and that he despises the use of guns. Finally, he perceives that he has no ability to access resources or protection that would negate the danger he faces on the streets.

[22] Two points or observations in Dr. Pilowsky’s assessment report stood out for me as an accurate summary of the circumstances of this offender and a worrisome predictor of the future. She assesses him as a man who was taught violence and that life is essentially "battle." In order to survive, Mr. Reid resorted to continually arming himself, particularly when the authorities were unable to keep him safe. His confidence in the authorities has not improved as his anger persists. It is her professional opinion that Mr. Reid's psychological condition will continue to deteriorate in jail. She reached that conclusion because he is unable to reconcile his history and his overall sense of degradation and being in a painful and inescapable situation.

[23] Dr. Pilowski says that he displays severe levels of depression and anxiety based on the Beck Depression and Anxiety Inventory instruments, caused by the jail time he is facing, his feelings of continued victimization at the hands of the authorities, and the need for him to be maintained in protective custody and isolation amidst individuals that he views as lacking any moral compass. Those events are affecting him profoundly from a psychological perspective, and Dr. Pilowsky fears that he will be demoralized utterly in the long term. His fear for the safety of his family has also become overwhelming for him. She strongly endorses psychotherapy or psychiatric treatment in order to bolster his positive coping strategies and enable him to become reconciled with the custodial life which will unquestionably follow his conviction on these charges.

[24] Three letters were also provided on the sentencing hearing, one from Mr. Reid’s mother, Janett Halstead, one from his younger brother Natala Reid who says he is very close to Gary, and one from his sister Felicia Wright. These letters show a different side to Mr. Reid’s character, the side that his family sees. They see him as a loving, peaceful and giving man, always protecting his mother from his father’s abuse and helping older people at the mall with their groceries, even when he had just been beaten by his own father. Both his mother and his brother acknowledge that he was damaged by his father’s abuse but have nothing but praise for his efforts within the family, his efforts to help others, and they earnestly believe that he was just starting to turn his life around when, as his brother put it, “destruction strikes again.” He is a person who they confirm loves his children very much, a point I do not doubt for a second.

[25] His family says they saw a big change in him “when he was out” before these charges arose, but his mother protested that he could not get a job because of his criminal record, an aspect of his life they regard as very unfair. They acknowledge that he has messed up many times but they say he is sorry for what he has done and ask for a reduction in his sentence to give him the opportunity to turn his life around. They claim he is a very positive influence on the children of their extended family, but that it was peer pressure and his very soft nature that has caused him to now be in custody. They beg for him, as a person who just got caught up in the system, to be given another opportunity to do something positive with his life.

[26] In his own words to me at the conclusion of the sentencing hearing, Mr. Gary Lalute Reid echoed these sentiments. He affirmed that his life in protective custody is very hard, and that he wants nothing more than to be there for his sons and to direct them away from the life of crime that he has led. As his sister asks, he requests that the court let him go back to his sons, having regard to the custodial time he has spent awaiting his trial and sentence in this matter. Mr. Reid agrees that if he gets the help he needs, he can become the better person that his brother Natala asks that he be permitted to become.

Positions of the Crown and the Defence:

[27] The position of the Crown in this case is simple and straightforward. She is adamant that the appropriate sentence in this case must recognize two distinct categories of delict, one the firearm possession offence (s. 95(1)) and the other the breach of prohibition order offence (s. 117.01). She claims both call for the maximum sentence that Parliament has seen fit to provide in the Code – she calls for the maximum term of imprisonment of 10 years for each of those two counts.

[28] In the Crown’s submission, Parliament had a reason for creating a maximum sentence of 10 years imprisonment for possession of illegal firearms. Equally, Parliament had a reason for enacting the same maximum sentence as potentially being meted out to an offender who was in possession of a prohibited firearm while subject to a prior prohibition order. Parliament created a maximum sentence of 10 years of imprisonment for possession while prohibited for a reason, and in the Crown’s submission, this is the case that engages that reason and the need to impose a significant sentence of that magnitude.

[29] She asks for concurrent sentences of (i) five years on the lesser section 108(1) offence of possession of a firearm with a defaced serial number, and (ii) possession of a firearm without being the holder of the license, contrary to section 91(1) of the Code. The Crown also seeks a concurrent sentence of two years for failure to comply with the terms of his probation and a three-month concurrent sentence for possession of cannabis.

[30] In the result, parsing out the concurrent sentences, it is plain that the Crown is seeking a very significant aggregate sentence of 20 years of imprisonment before credit for pretrial custody for these offences. When it was observed that there is no case in Canadian jurisprudence that appears to have imposed such a sentence, she responds that there is no offender like Mr. Reid. She asks for that sentence having regard to the egregious prior circumstances of this offender, and the numerous prior sentences that have been imposed on him, none of which have evidently persuaded him to abandon his apparent addiction to the possession of illegal handguns.

[31] Stated shortly, with six prior gun related offenses and having breached prior lifetime prohibition orders from the holding of firearms extending back to 1995, the Crown's position is that Mr. Reid has shown that he is ungovernable. As such, the primary and only significant sentencing factors that must prevail on this sentencing hearing in her submission are the specific deterrence of this specific offender, and the protection of the public. All prior opportunities for rehabilitation inherent in prior sentences imposed by this and other courts in this province have been ignored or spurned. The only sentence that will meaningfully protect the public from Mr. Reid's inability to separate himself from the illegal ownership of guns is the imposition of a very lengthy sentence of incarceration in a federal penitentiary.

[32] Counsel for the defence vigorously rejects those submissions. To impose a sentence of that magnitude, even in the context of the number of repetitive offences that have occurred in this case, would violate the totality and jump principles given the prior sentences imposed upon Mr. Reid. As well, Ms. Pringle find seeds of hope for rehabilitation in certain aspects of Mr. Reid’s conduct over the past 10 years and she asks the court to take them into account in imposing a lesser sentence. She essentially argues that he has abandoned other criminality and only carries firearms because of his fear and need to feel that he can defend himself. In her submission, those factors should result in a sentence of no more than 10 years, and substantially less.

[33] Counsel for the defence submits that the sentence sought by the Crown is not in accord with the principles of sentencing and that it fails to recognize the particular circumstances of this offender. She argues instead in favour of an aggregate sentence of seven or eight years, seven plus one for breach of the prohibition order if the two principal sentences are to be served consecutively, and seven or eight years in aggregate if served concurrently.

Mitigating and Aggravating Factors

[34] There are both aggravating and mitigating factors present in this case. Plainly, however, the mitigating factors are few, and the factors that aggravate far outweigh the one or two that mitigate.

[35] The first of the aggravating factors is Mr. Reid’s criminal record. He is no longer a youthful offender. His prior record is abysmal. The CPIC report is two and a half pages long. It commences with break, enter and theft in 1988, 25 years ago, when Mr. Reid was 12 or 13 years of age. A review of Mr. Reid’s criminal record discloses that he has been convicted and sentenced for the following 34 offences:

(i) robbery and theft related offences: break, enter and theft, robbery (x 2), possession of property over $5,000 obtained by crime, and theft under $1000;

(ii) fail to comply with orders: failure to attend court, failure to comply with probation order, failure to comply with a recognizance;

(iii) narcotics offences: possession of narcotics (x 2), possession for the purposes of trafficking, trafficking in narcotics, possession of schedule 1 substance;

(iv) assaults and offences against the administration of justice: assault with intent to resist arrest (x 3), assault, escape lawful custody, obstruct police officer (x 2)

(v) motor vehicle offences: dangerous operation of a motor vehicle, failure to stop at the scene of an accident;

(vi) weapons offences: possession of a weapon (x 2), possession of prohibited weapon offences (x 6), possession of firearms contrary to prohibition orders (x 4).[^1]

[36] Mr. Reid’s criminality is evident from this list of his prior convictions. Although there was no other specific crime associated with the offences upon which he has been convicted in this matter, the Crown noted that a number of his prior convictions for possession of prohibited weapons were associated with other criminality including violence. These events were thoroughly detailed in the brief prepared by the Crown of sentencing background materials that included TPS records and synopses of facts associated with those other events where he was apprehended in possession of prohibited firearms. Favourable to Mr. Reid, however, I note that in the eight years that have passed since 2005, he has avoided other criminality even if he has continued to insist on possessing handguns.

[37] Ignoring the rest of it, which is significant on its own but not in play at this sentencing except as an aggravating factor, plainly the most distinguished and predominant feature of Mr. Reid’s record relates to the possession of illegal handguns and the breach of orders telling him to give up his addiction to them. Mr. Reid claims to believe he was promised protection after making disclosures to the police about other gang members at the time, but that none was forthcoming. Those events are given a totally different character by the Crown. She claims they involved Mr. Reid recanting his statement and the need for a KGB application at the trial. But regardless, even if Mr. Reid came to believe that he needed to carry a loaded firearm to defend himself after these events, that is not an explanation that could ever serve as an excuse or a mitigating circumstance in a case such as this.

[38] Ms. Pringle says that it is a mitigating factor that favours some prospects for rehabilitation that Mr. Reid has abandoned other criminality and only carries firearms because of his fear and need to feel that he can defend himself. However, this is not an acceptable proposition. Although I did not find any appellate authority on point, there are four helpful decisions of this court and the Ontario Court of Justice: R. v. James[^2], R. v. R.G.[^3], R. v. Green[^4], and R. v. Powers.[^5]

[39] In Powers, Justice Trotter faced circumstances very similar to these, a situation he described as “emblematic” of the concerns expressed in these cases. Powers had been granted bail on serious offences involving firearms. He had previously been ordered and was already subject to judicial orders prohibiting him from possessing firearms. Nonetheless, he armed himself with a prohibited handgun, which at the time of his arrest was found to be loaded, with a bullet in the chamber, ready to fire, a plainly aggravating fact. Mr. Powers testified that he armed himself in order to protect himself from the danger he faced on the street. The facts are not much different here, only worsened by repetition. In this case, it is plain that Mr. Reid arms himself because of the dangers he fears and faces going back to having been a victim in two gunshot incidents, one if not both of which was clearly meant to kill him.

[40] At paras. 23- 25 of Powers, referring to his earlier decision in Green, Trotter J. stated as follows:

To give judicial effect to Mr. Green's explanation for arming himself would send the perverse message that the courts are willing to entertain various reasons offered for carrying loaded handguns in public places. This could only encourage more people to consider arming themselves, which would in turn beget further gun violence. Thus, the need to emphasize general deterrence, denunciation and public protection cannot be diluted by Mr. Green's stated reasons for carrying firearms.

This principle applies with equal force to Mr. Powers' situation. It is difficult to imagine any circumstances in which leniency should be afforded to those who arm themselves with handguns for the purpose of self-protection. To do so would turn the firearm provisions of the Criminal Code on their head and exacerbate a very serious social problem. This proposition gains greater force when it is considered that many of the people who make this claim attract personal peril by living dangerous, criminal lifestyles in which such animosity is a foreseeable fact of life.

[41] I can do little better than supplement this logic by echoing the court’s views in J.G., above, that we must firmly, plainly and definitively discard any notion or belief that the possession of handguns or other firearms will ever be accepted as a valid or permissible means of self-protection by citizens of this city, or this country. The possession of a handgun for alleged self-defence could never be a mitigating factor in sentencing. It may factually explain the possession. It can never forgive or mollify it.

[42] It is also seriously aggravating here that Mr. Reid was carrying that loaded restricted and prohibited firearm in a public place. In R. v. Grant[^6], an 18-year-old offender was convicted of five weapons offences. Even though it was his first offence, the Court of Appeal acknowledged that two aggravating factors warranted increasing the sentence above the mandatory minimum – first, the time and second the location of the offence, given that the offender was carrying a loaded weapon in the middle of the day on a public street near high schools that were experiencing problems with violence. Thus, like in Grant, and like in R. v. Ferrigon[^7], the carrying of a loaded handgun in a public place in the middle of a housing development followed by a police chase and the abandonment of the gun by the offender, in that case by being hidden, in contrast to this case where it was out in the open, must be regarded as two important aggravating circumstances.

[43] There is one mitigating factor I am prepared to find here. It is small, but as Ms. Pringle described it, it is a small seed of hope. His family says they saw a big change in him when he was on probation before these charges arose. They say he is sorry for what he has done and ask for a reduction in his sentence to give him the opportunity to turn his life around. They claim he is a very positive influence on the children of their extended family. They beg for him to be given another opportunity to do something positive with his life.

[44] As I discuss later in these reasons, perhaps it is too late to believe that is possible. However, in his words to me at the conclusion of the sentencing hearing, Mr. Reid echoed these sentiments. I believe he also expressed a modicum of remorse. He affirmed that his life in protective custody is very hard, and that he wants nothing more than to be there for his sons and to direct them away from the life of crime that he has led. Mr. Reid agrees that if he gets the help he needs, he can become a better person. While the evidence to the contrary is very weighty in this case, I believe there is that one seed of possibility in this case, and that combined with some expression of remorse for his life to date, persuades me to provide a very modest reduction in the sentence I am otherwise obliged to impose in this case, by imposing sentences at the low end of the applicable range for this offender.

Principles of Sentencing

[45] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, there are several that are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others, specific deterrence of this offender, and the protection of the safety of the public are paramount considerations in deciding what sentence to impose.

[46] The appropriate sentence for any given offender will always depend on a number of factors, including the age of the offender, his prior record, the possibility of rehabilitation, and account being taken for any relevant aggravating or mitigating circumstances.

[47] Plainly this is a case where there are aggravating circumstances. The aggravating circumstances include Mr. Reid’s very extensive criminal record. It is listed above.

[48] The most egregious of the aggravating circumstances, however, is that Mr. Reid has now been convicted of seven gun related offences and he has previously been sentenced to and now violated four lifetime prohibition orders prohibiting him from the possession of firearms of any kind whatsoever. Against this background it is noteworthy that the maximum penalty for the possession offences is ten years imprisonment. Likewise, the maximum sentence for the breach of prohibition offences is also 10 years. As well, Parliament saw fit to enact a mandatory minimum of five years of imprisonment in a case such as this where the offender has at least one prior conviction for possession of a prohibited firearm and where notice of the intention to seek a higher penalty has been served. The Crown has served that notice in this case.

[49] When looking at the sentence of an accused person, the court is also to strive to respect the principles of proportionality and consistency of sentences for similar offences in the sentence imposed in the particular case. Proportionality requires that a sentence speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. Subject to specific statutory rules, like the imposition by Parliament of mandatory minimum sentences for particular crimes, the determination of a fit sentence is an individualized process. It calls upon me to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. It recognizes that aggravating or mitigating or factors, respectively, will increase or decrease the appropriate sentence for otherwise similar offences.[^8] A sentencing judge must impose a sentence that is specific to the nature of the offence and the circumstances of the offender, following limits and ranges imposed as guidelines by the case law in order to try to encourage consistency in sentencing.

[50] Finally, there is the principle of totality. Section 718.2 of the Code states that a court that imposes a sentence is also to take into account the principal that where consecutive sentences are imposed, the combined sentence and should not be unduly long or harsh. As Ruby describes it in his seminal text on Sentencing[^9], the totality principle is simply a particular application of the general principle of proportionality. Where consecutive sentences are imposed, it requires the sentencing judge to ensure that the cumulative sentence does not exceed the overall culpability of the offender. It requires that the sentencing judge consider the total impact of the sentence that is proposed relative to the gravity of the conduct of the specific offender.

Analysis/Reasons

[51] Before proceeding to consider the other factors and issues, I should record that Crown and defence counsel are an agreement on a few points relative to the sentence that should be imposed in this matter. They agree that the sentences for possession of a firearm knowing that the serial number had been removed (s. 108(1)), for breach of a probation order, and for simple possession of marijuana, should be served concurrently with the other principal sentences imposed.

[52] Also, counsel for the defendant takes the position that the conviction for possession of a firearm without being a license holder, contrary to s. 91(1), should either be stayed under the principles of R. v. Kienapple[^10], or in the alternative that a concurrent sentence should be imposed consistent with the Crown's position.

[53] Without belabouring the point, it is my view that the defence position is correct on this question. The fact that the accused was not a holder of an authorization or a license under which he might possess a firearm is a central element of the conviction under ss. 95(1), that is, of possession of a loaded restricted firearm. The decision of the Court of Appeal in R. v. Grant[^11], and the decisions of this court in R. v. J.G.[^12] and R. v. Larmond[^13] are consistent that in circumstances where a conviction is entered under s. 95(1) for possession of a loaded firearm while unauthorized, it is appropriate to enter a stay for a conviction arising out of the same delict of possession of a firearm while unauthorized under s. 91(1). As such, count three will be stayed.

Range of Sentence

[54] There are a number of cases in recent years, particularly within the last 10, where offenders were before the court for sentencing for illegal firearm possession offences and for repeat offenses and breaches of prohibition orders, so there are guidelines in the caselaw that are helpful here. Before considering the appropriate range of sentence for this particular case, however, it is important to remember that the February 28, 2008 enactment by Parliament of Bill C-2 increased the mandatory minimum sentence for possession of a prohibited or restricted firearm from one year to three years in the case of a first offence, and increased the mandatory minimum sentence for second and subsequent offenses from one year to five years. As Justice Kelly pointed out in R. v. Lambert[^14], the message from Parliament could not be clearer or more forceful. Those who reside in this country are not to be in possession loaded prohibited firearms under any circumstances whatsoever. Period. Full Stop.

[55] That enactment now inevitably must drive up the appropriate range of sentence for firearms offences where the sentence is imposed after that enactment. In R. v. Johnson[^15], Marrocco J. considered the effect of the new amendments and sentenced the offender in that case to a global sentence of nine years on the basis that the appropriate range of sentence had obviously gone up. Then, in R. v. Brown[^16], the Court of Appeal considered the Crown's appeal of the sentence imposed for possession of a loaded handgun following a guilty plea. In that case, the accused was a third-time offender and had been sentenced to 5 1/2 years of imprisonment. The Court of Appeal found that sentence to be inadequate given the changes in the legislation. It imposed a global sentence of eight years.

[56] Similarly and most recently, in R. v. Lambert, above, Kelly J. faced a circumstance where the offender had 45 previous convictions. He was convicted of 40 offences before Justice Kelly. In his apartment they found three fully loaded handguns, two sawed-off shotguns, two rifles, and a large supply of ammunition. The offender was sentenced to 13 years, consisting of nine years in prison for the possession of the illegal handguns, concurrent to each other and concurrent to the other firearms offenses. In additional six months was imposed for possession of the ammunition, two years for trafficking in crack cocaine, and one and a half years sentence consecutive for possessing a firearm while prohibited. After taking account of time served, he was sentenced to nine years and eight months of incarceration. Lambert had three prior firearms related convictions at the time this matter arose.

[57] Then there is R. v. Ferrigon. To my mind, there is a great deal of similarity between the circumstances in Ferrigon and those of this offender, Gary Reid, except for one important difference. In Ferrigon, the offender had committed only half as many illegal firearms possession offences and had breached only half as many lifetime prohibition orders as Mr. Reid has. It was Ferrigon’s third firearms possession offence and his second breach of a lifetime prohibition order. This is Gary Reid's seventh firearm possession offence and his fifth breach of a prohibition order.

[58] There is also some marked factual similarity between Ferrigon’s and Reid’s apprehension. Ferrigon ran from the police when they approached him. He abandoned the loaded handgun as he was being chased, in a window well in a public place. In that location it could have been found by anybody, including a child and that could have had tragic results. He was on probation at the time of his arrest. Very similar circumstances occurred in this case. Gary Reid was running from the police, the handgun fell from his waistband, he attempted to retrieve it and a scuffle ensued between with the police officers. The police officers in this case believed that they were going to have to shoot Gary Reid. Fortunately, they were able to retrieve the firearm before it got to that point. Reid was still on probation at the time he was arrested.

[59] In Ferrigon, the offender did not have a record of committing violent or drug related offenses. There was no evidence that he had the gun in his possession at the time of his arrest in order to facilitate other crimes, and there was no evidence that he had ever used a gun against anyone. He had been given a break in sentencing on his two prior firearms offenses. Molloy J. concluded that the jump principal had very limited application because he had already been dealt with leniently on two prior occasions and plainly not learned anything from the experience, because he was not remorseful about carrying a gun, and because he was not deterred by court orders and was likely to reoffend upon release. In his circumstances, rehabilitation was unlikely against that background. Consequently, applying the step principle would result in a sentence that did not adequately address the seriousness of the offence and the danger to society represented by the offender.

[60] Molloy J. sentenced Mr. Ferrigon to five years for the possession offence and the other gun related offences were to be served concurrent to that offence. For breach of the prohibition orders, a consecutive sentence was ordered. The court observed that the offence was not a trivial one insofar as it carries a maximum sentence of 10 years. Mere possession of a gun without ammunition in a location that was secure and private would be sufficient to constitute the offence. Thus, the carrying of a loaded handgun in a public place in the middle of a housing development, as I have found in the case of Gary Reid, was an aggravating circumstance, as was the police chase and the abandonment of the gun by the offender in that case. Molloy J. considered it an aggravating factor in Ferrigon that it was the offender's second conviction for breaching a prohibition order. In this case, it is the offender's fifth conviction for breaching a prohibition order. In that case, Molloy J considered a fit sentence to be an 18 month term of imprisonment, to be served consecutively to the sentences for the other offenses.

[61] Given that the sentence of five years imposed on the offender in Ferrigon was for that offender’s third illegal handgun possession offence, and was imposed before the enactment of Bill C-2, and the cases that have followed that change in law and which have seen an acceleration in the range of sentence accorded to multiple firearm possession offenders, it is plain to me that the seven year range of sentence sought by the defence in this case would be inadequate. It would not be a fit sentence for this offender in the circumstances of this offence.

[62] Instead, this being Mr. Reed's seventh illegal firearms possession offence, and given some of the comments made to him on earlier sentences, to which I will refer shortly, this is arguably a case where double the range of sentence imposed on the offender in Ferrigon ought to be imposed on Mr. Reid. A doubling of that range of sentence for an offence that is doubly egregious in terms of repeat offences, would suggest that the maximum sentence of 10 years, is the appropriate and fit sentence for the illegal firearms possession offence for this repeat offender. This is exactly the position contended for by the Crown.

[63] As persuasive as this may be, I have to acknowledge that Mr. Reid's crime in this case was simply being in possession of a loaded restricted firearm per se, rather than using it in the course of some other criminal action. That is true even though the firearm was loaded and present in a public place, both seriously aggravating circumstances. I also must observe that Mr. Reid’s last two sentencing appearances have not involved other criminality – just possession of loaded illegal firearms. I do not mean to make light of the offences with these observations, as hopefully the tenor of the rest of these reasons makes clear. It is simply an observable fact.

[64] Plainly, Mr. Reid's refuses to abide by the laws of this country relative to the illegality of firearm possession. He refuses to be un-armed. He must be sentenced to at least five years, and that is the mandatory minimum sentence imposed for only a second offence, not the seventh. That fact, alone, calls for an upper range sentence approaching the maximum sentence

[65] Nevertheless, the maximum sentence of ten years must be reserved for offenders whose circumstances are even more egregious than these. I would consider more egregious circumstances to include the repeat possession of multiple firearms or circumstances where the firearm was in actual use in the commission of some other criminality. Cases with consistent decisions include R. v. Manning, R v. Lambert, R. v. Johnson, above.

[66] In light of those two facts, I do not view Mr. Reid or these circumstances as being the most compelling, demanding the imposition of the maximum sentence of 10 years contemplated by ss. 95(2). Rather, in my view the appropriate sentence in this case for the possession of a loaded prohibited firearm offence by this offender would ordinarily be marginally less, a sentence of between nine and nine and one-half years of imprisonment. That is the range that I consider appropriate here.

Should the “jump” principle apply in sentencing Mr. Reid?

[67] Counsel for the defence agrees generally with the proposition that the "jump" principle will carry less weight where rehabilitation is not a factor. Here, the predominant factors are specific deterrence and the protection of the public. Rehabilitation is not a significant factor, if it even plays in the calculus at all, as is plain from the reasons that follow. But even if rehabilitation prospects are low here, the question remains whether the “jump” principle ought to apply. The essence of the jump principle is that sequential sentences should not “jump” in relative severity. Counsel for the defendant argues that the jump principle is offended in these circumstances where the Crown not only seeks the maximum penitentiary sentence of 10 years for two separate offences, but also seeks to have both sentences imposed consecutively for a total of 20 years.

[68] It is not disputed by the parties here that dicta of Justice Molloy in R. v. Ferrigon, above, recognizes that the jump principle and its application in any particular case will depend on a sliding scale of factors, and that it may receive less weight in particular circumstances. At paragraphs 11 and 12, Molloy J. stated as follows:

Accordingly, when rehabilitation is not a significant factor influencing sentence, the jump principle also has less relevance: see R. v. J.G. [citation omitted]; R. v. Manning [citation omitted].

Similarly, the jump principle cannot be the only, or often even the primary, consideration in sentencing. There will be situations in which the offender poses such a danger to the public that a significant increase in sentence is required or situations where the importance of deterrence and denunciation outweigh other considerations. [my emphasis]

[69] Even so, counsel for the defence argues that simply because it may have limited application in a case such as this does not merit a jump from a prior minimum penitentiary sentence to the maximum penitentiary sentence, to be doubled as consecutive. Expressed differently, even if a significant “jump” in the quantum of sentence is otherwise merited, the size of that jump must still be measured by the quantum of prior offences, the facts of the specific offence, and the range of similar sentences established for similar offences.

[70] It is instructive to look closely at Mr. Reid’s CPIC criminal record. The seven appearances he made in court on which he was convicted of crimes between 1988 and 1992 were all in youth court in Toronto or Brampton. The most severe sentence imposed upon him during that period was 7 months of secure custody plus two months of open custody and 12 months of probation for three charges of trafficking in narcotics while still a youth. His first crime as an adult was a theft conviction on December 9, 1993. He was given a suspended sentence and 16 months probation. Since that time, convictions were entered against Mr. Reid a total of eleven more times.

[71] Convictions for firearm possession and prohibition orders first start to become the focus of his criminality commencing on July 9, 1997 when he was first convicted of possession of a prohibited weapon and sentenced to four months plus probation of one year. He was also given his first lifetime firearms possession prohibition on that day. Since then, and prior to these charges, he was convicted of illegal handgun possession offences on May 26, 1999, March 29, 2001, April 25, 2002, October 20, 2005 and April 11, 2008 – a total of six prior offences. His record shows that he received four lifetime firearms possession prohibitions, on July 9, 1997, March 29, 2001, April 25, 2002, and April 11, 2008 – a total of four prior offences.

[72] Despite his record, Mr. Reid has apparently never been sentenced to serve more than the minimum two-year penitentiary sentence, after credit for pretrial and pre-sentence custody. A sentence equivalent of two years plus 87 days of pre-sentence custody was imposed on April 25, 2002. The sentence imposed on October 20, 2005 was two and a half years, but time to be served after pre-sentence custody was only six in the provincial reformatory. Finally, a sentence equivalent of four years and eight months was imposed on May 11, 2008, the date of the most recent sentence for possession of a firearm and breach of a lifetime prohibition order, but after time served, he was sentenced to two years less a day, also a provincial reformatory sentence.

[73] Counsel for the defendant argues the jump principle is necessarily engaged here because the longest sentence previously imposed on Mr. Reid, his most recent, is 4 years and 8 months in 2008, 5 years ago. After 32 months credit for pre-trial custody, that resulted in the imposition of a reformatory sentence of two years less a day. In 2005 he received a very lenient sentence of only 6 months and two years probation after credit for one year of pre-sentence custody. He has only been to the penitentiary once, in 2002, when he received a two and a half year equivalent sentence that translated to the minimum of two years, after 87 days of credit for pre-sentence custody. There has been no other penitentiary sentence imposed upon him. Each of these sentences were imposed for possession of a loaded restricted or prohibited firearm.

[74] However, it is somewhat misleading to consider Mr. Reid's longest prior sentence to have been a minimum penitentiary sentence of two years. The most severe sentence imposed upon him on April 11, 2008 was actually 56 months, that is, four years and eight months. Even though it would be a sentence before credit of more than double his previous most severe sentence, the Crown argues that it is not an unconscionable jump in the circumstances of this case to request a sentence of 10 years on that principal possession offence specifically because it is Mr. Reid's seventh conviction for illegal possession of a firearm.

[75] Thus, the question here is whether a sentence in the range of 10 years as sought by the Crown, remains a suitable sentence for this seventh illegal possession offence once the jump principle is taken into account. In my view, on that offence and in these circumstances a sentence in the range of nine to ten years is called for, apart from the issue I address below of whether sentences for the two principal offences ought to be served concurrently or consecutively. I find that it does not offend the jump principle to consider a sentence of that magnitude in this case because the jump principle is of only minimal application here.

[76] More importantly relative to whether the jump principle should apply, several prior reduced sentences directed at permitting Mr. Reid to have a reasonable opportunity for rehabilitation have failed, totally and utterly to achieve that objective. He has not taken advantage of the rehabilitation opportunities that have been sent his way.

[77] No better examples can be found of prior sentences that focused on rehabilitation than that of Justice Harris in 2001 when he sentenced Mr. Reid for possession of cocaine, obstruction of a police officer, and his third possession of a prohibited weapon offence.[^17] In that case, Harris J. imposed a very lenient sentence. He did so in spite of wondering aloud why he was considering leniency when the primary issue was the need to incapacitate Mr. Reid –to get him out of the public domain and off the streets for as long as possible. At paragraphs 9 and 10, Justice Harris poignantly states as follows:

I can tell you, Mr. Reid, if you keep going the way you are, someday your family is going to read about you in the newspaper, and that will be the end of your life, and that will not be much of a credit to your family. I hope you think about your future, your family's future, the safety of the community and do everything you can to get out of this lifestyle, because if you come back to court, you are probably looking at about 6 to 8 years, maybe longer, and by that time all of your career chances will be gone. Not many people breaking into the music business at age 40. You still have a chance.

So if it were not for the fact that I see a lot of potential in you, it would be a lot longer sentence than what I'm going to impose. But giving effect to the principle of incapacitation, denunciation, my view [sic] the appropriate sentence is the one proposed by counsel, and I'm going to note the file five months pretrial custody. The sentence for the possession of prohibited firearm charge is 12 months, 15 days. The sentence for the possession of cocaine charge is 90 days concurrent. The sentence for the obstruct police charges 30 days concurrent. So the total sentence from today forward is 12 months, 15 days. (my emphasis)

In addition, Harris J. imposed a second mandatory life prohibition from the possession of firearms. Those words were spoken on March 29, 2001 yet today the hopes expressed there by Justice Harris ring hollow because

[78] Were it not for his views about the potential he thought Mr. Reid showed at that time in 2001 for rehabilitation, he would have imposed a much lengthier sentence. Plainly he thought a sentence of six or eight years, or possibly longer could have been appropriate at that time absent rehabilitation possibilities.

[79] But over a decade later the same principal circumstance is still present. The drugs are gone from the subsequent occurrences (except for the small inconsequential personal amount of marijuana in this case), a mitigating factor, but the illegal handgun possession continues. It is the fourth time since he was shown leniency by Justice Harris that he has illegally possessed a loaded restricted handgun. It is the third time since that lifetime prohibition was imposed that Mr. Reid has violated it.

[80] Notwithstanding the claims of defence counsel that the “jump” principle must still apply, plainly rehabilitation has been tried and so far, it has failed. In such circumstances, even if there may be a glimmer of a prospect of rehabilitation still remaining, the principal relevant factors must be specific deterrence and protection of the public. Rehabilitation is not a dominant or significant sentencing factor in this case because (i) Mr. Reid is no longer a young offender, who (ii) has committed very few offences, and (iii) several prior efforts to encourage rehabilitation have been unsuccessful. Against that kind of background, Canadian appellate courts have recognized that the theory represented by the “jump” principal, that sentences should only go up in moderate steps, is a theory that has very little if any scope to operate in a case such as this.[^18]

[81] The minimum sentence that can be applied to Mr. Reid for the possession of a loaded illegal firearm under s. 95(1) of the Code is five years. He previously received a sentence on the last occasion he was here totalling almost five years. Against that background and to the very limited extent it may be applicable, in my opinion it does not offend the “jump” principal to have Mr. Reid be subjected to the nine to 9.5 year sentence for that offence that I have concluded is the appropriate range here for the illegal possession offence.

Consecutive or concurrent sentence for breach of prohibition order?

[82] In this part of these reasons I deal separately with the appropriate length of sentence for the breach of the prohibition order, for its fifth time, and whether or not the sentence imposed for that offence ought to be served consecutively or concurrently with the sentence for the principal illegal possession offence.

[83] In R. v. Jones[^19], the Court of Appeal recognized that the primary goal of a prohibition order against the possession of firearms is the protection of the public. In enacting s. 109, Parliament recognized the community is put in danger by the very presence of guns in its midst, and that the possession of guns by persons who have already committed crimes that provided a previous basis for prohibition orders to issue, constitutes an even greater danger to the community.

[84] In this case, because of the particular circumstances and the number of repeat offenses, and the virtual absence of circumstances calling for a rehabilitation objective relative to this offender, the function that is sometimes served by the prohibition orders is absent. They might normally permit a reduction in the potential sentence on the principal crime, possession of the firearm, in the interests of rehabilitation, and recognizing that the offense against the administration of justice can be addressed on its own by a separate sentence for that separate delict.

[85] Justice Jurianz observed in Jones, above, that when the offender is being sentenced for breach of the prohibition order, the relative weighting of the sentencing objectives is different. The offence demonstrates the accused's ungovernability by court orders and his failure to respond to society's efforts to rehabilitate him. The violation, or in this case, continuing violation of the prohibition orders shows that the community cannot be protected merely by ordering Mr. Reid not to engage in the prohibited conduct. As such, the objective of separating him from the community in order to protect that community plainly acquires greater weight.[^20]

[86] Mr. Reid has violated four lifetime prohibition orders that had been made against him starting back in 1997, contrary to s. 117.01(1) of the Code. That amounts to four separate occasions when he has breached mandatory court orders. The Crown submits that the prohibition sentence should run consecutively to the firearms offence sentences because they are separate offences and represent different societal interests. Ms. Pringle submitted not only that the convictions arise out of the same transaction and thus should run concurrently with the firearms sentence, but also that a sentence of seven or eight years in total is itself more than adequate to address the societal interests and sentencing objectives relative to both crimes. There is case law that supports both arguments: see J.G.;[^21] Ferrigon;[^22] R. v. Manning.[^23]

[87] Counsel for the defence puts forward the recent decision of our Court of Appeal in R. v. McCue as providing the direction that I must follow in determining whether relative to the question of whether I can or ought to impose a consecutive sentence for the breach of the prohibition order in this case. In McCue, it was suggested that a sentencing judge in these circumstances has two options. The first is to ignore the breach of prohibition entirely in fixing the sentence for the firearm possession offence, and then impose a consecutive sentence for the breach of prohibition offense which is in accordance with the jurisprudential range for that offense.

[88] Alternatively, it is suggested I have the option to use the facts of the breach of the prohibition order to aggravate the sentence for the firearms possession offence conviction, and then impose a concurrent sentence for the breach of prohibition order conviction. Defence counsel suggested the Crown's position in this case impermissibly invites me to do both, while ignoring the applicable range of sentence for Breach of Prohibition Order.

[89] First, in my view the legal principles and the balance of the case law suggest that the better approach would see the sentence for the breach of the prohibition order imposed consecutively to the firearms offence. Different societal interests are protected and engaged, even if the offences do arise from the same transaction. In my view, however, they deal with different delicts and if prohibition and probation orders are going to have any meaning and impact, they must be enforced. To impose a concurrent sentence makes the offence of violating the specific prohibition order superfluous.

[90] But if it is to be imposed, that does not address the question of how long a consecutive sentence ought to be for breach of the prohibition order. The Crown asks for the maximum sentence permissible, 10 years. Counsel for the defence says that the range of sentences has been an established for breaches of prohibition orders is a range of 1 to 2 years: see R. v. McCue (6 months consecutive), R. v. Brown (1 year consecutive), R. v. Adjei[^24] (1 year consecutive), R. v. Lambert (1.5 years consecutive), R. v. Ferrigon (1.5 years consecutive), R. v. Manning (1 year consecutive), R. v. Fletcher[^25] (1.5 years consecutive) and R. v. Newell[^26] (1 year consecutive).

[91] The problem in this case relative to the imposition of a sentence for the fifth breach of a lifetime prohibition order against holding firearms by this offender, is that I did not take it into account as an aggravating factor in determining the sentence on the principal offence, the seventh sequential possession of illegal firearms conviction. For the reasons previously expressed, I have reached the conclusion that the fit range of sentence in this case is 9 to 10 years for the possession offence alone.

[92] In reaching that conclusion, I have not taken account of the four prior convictions for breach of prohibition orders, and thus, that must be considered on its own and a fit sentence determined for that conviction as well. The second problem is that to the best of my knowledge there has never been an offender before our courts who has breached so many lifetime prohibition orders and for whom the Crown seeks such a lengthy sentence. As a result, that calls into question what is an appropriate sentence for the breach of prohibition offence, on its own, even if served consecutively.

[93] While the Crown contends for the view that Mr. Reid occupies a single solitary place in his own in the pantheon of Canadian firearm offenders, and that that position ought to call for the maximum sentence of 10 years imprisonment on that count as well, consecutive to the sentence he will serve on the firearms possession offence, I disagree. Nonetheless, if any significance is to be put into the imposition of such consecutive sentences, and breach of prohibition order convictions are not to be greeted by a simple constant repetition of the same sentence of between one and two years as the number of repeat breaches of the orders increases, inevitably the range of sentence for a case such as this must increase. And that must have been Parliament’s intention. Otherwise, there would not have been a ten year maximum sentence created, or else there would have been an enactment that statutorily articulated a basis upon which totality of sentence where both of these offences are present was to be wound together.

[94] For assistance, I looked again to the decision in Ferrigon. In this case I have determined that an appropriate range of sentence for this, Mr. Reid's fifth breach of a lifetime prohibition order, is also double the one and one-half year sentence imposed by Justice Malloy in that case where only two prior prohibition orders had been breached. In my view, the appropriate range of sentence to be imposed in this case for his conviction for breach of the prohibition order for the fifth time, is a sentence in the range of two and one-half to three years, to be served consecutive to the sentence on the principal firearm possession offences.

How much credit should Mr. Reid receive for pre-sentence custody?

[95] Gary Reid was arrested and charged with these offences on March 29, 2010. I found Mr. Reid guilty on all of those charges on December 20, 2011. Since that time, numerous adjournments prevented this sentencing hearing from being commenced until late 2012 and concluding in April 2013. As a result, Mr. Reid has spent a total of 1330 days, consisting of pre-trial custody of 630 days and post-trial but pre-sentence custody of 700 days – an amount totalling about 3 years. The question here is the extent to which he should receive credit for his pre-trial and pre-sentence custody.

[96] Following the Truth in Sentencing Act amendments to the Code changed the conventionally and legally accepted prior regime of generally providing two days of credit for each day spent in pre-trial custody has changed. The ordinary credit is changed to 1:1 for days spent in pre-sentence custody. However, Parliament also saw fit to provide for an enhanced credit of 1.5:1 “if the circumstances merit it.” Since the new regime was enacted, numerous decisions have been rendered across Canada commenting on the circumstances in which the enhanced credit may be granted.

[97] Those cases have continued to focus on disadvantageous conditions in provincial remand facilities, ranging from excessive crowding to an absence of rehabilitative programs. More importantly, numerous judges have focused on the appropriateness of enhanced credit to compensate offenders who spend long periods of time incarcerated before sentencing in provincial remand facilities, and who are thereby put at a disadvantage relative to earned remission under the federal parole system. They have considered whether an offender must advance evidence to support a claim for enhanced credit and whether he must show that his circumstances are exceptional.

[98] In the circumstances of this case, I have determined that Mr. Reid ought to receive enhanced credit for his pre-sentence incarceration. There are several reasons for that conclusion. First, as in the case of other offenders who will commence to serve federal penitentiary sentences, Mr. Reid will not benefit relative to parole eligibility from his pre-sentence custody. This issue has been discussed thoroughly by Cronk J.A., writing for a unanimous Ontario Court of Appeal, in the recent decision in R. v. Summers. Importantly, the Court of Appeal emphasises that the requirement for enhanced credit is that the circumstances warrant it. The court rejects that it can be granted only in exceptional circumstances.[^27]

[99] The evidence on this sentencing shows that the quality of Mr. Reid’s incarceration is different from that of other inmates and offenders generally because he must be kept in isolation from other prisoners for his own safety. He is regarded as a snitch and he has been attacked in the remand facility on several occasions. This has resulted in a need to house him separately from other prisoners in protective custody. However, it is he who has made that request, albeit that the circumstances seem to require it. He lives in fear. He must be constantly vigilant relative to his safety. He worries about the safety of his family. He is unable to access the facilities in the remand centres when any other inmates are around, nor is he permitted to socialize with others like himself. I accept that these cause his conditions of incarceration to be more harsh than those of the general population, and that some credit ought to be granted for that.

[100] Further, Mr. Reid has been forced by a series of unfortunate circumstances to serve three years in pre-sentence custody, but over half of which has been served since he was found guilty of these crimes on December 20, 2011 and while he was awaiting sentence. This should not have been the case. An offender should be sentenced as soon after conviction as possible.

[101] I will not comment extensively on the causes of that delay. The first significant component of delay arose because trial counsel concluded on the day the sentencing hearing was to commence three months after conviction, that a prior presented him with a conflict that prevented him from continuing to act for Mr. Reid. That conflict arose because he raised the theory that Mr. Reid needed to arm himself because one of counsel’s former clients or others had allegedly put a contract out for Reid to be killed.

[102] After that adjournment, granted just over a year ago, it took some months before Ms. Pringle was retained, Legal Aid got on board, and new defence counsel had the time she needed the time to prepare for the sentencing, in addition to all of her other extensive criminal law retainers. Frankly, she has taken steps to expedite the matter, so I would not wish to see her blamed for any of the delay in reaching a sentencing day in this matter.

[103] The last component of delay was caused by me. We tried to get the hearing in before January 16, but that was not possible. I was then required to take about ten weeks of medical leave. All of this has contributed to Mr. Reid having spent more time in custody awaiting sentence should have been the case, through no fault of his own.

[104] I am satisfied that these circumstances call for him to receive enhanced credit, but I would not grant credit at the maximum 1.5:1 level. As this sentencing should have been completed about one year ago, taking all elements together, I find that additional credit of one year will adequately address these issues. This amounts to credit of 1.33:1. Thus, taking account of his pre-trial and pre-sentence incarceration, which totals three years, Mr. Reid shall be credited with four years of time served.

Final Decision

[105] No doubt there are personal reasons that may explain Mr. Reid’s conduct. These are described in the detailed assessment of Mr. Reid prepared by Dr. Judith Pilowsky, an experienced Clinical Psychologist who focuses on issues relating to rehabilitation. Those reasons include the significant physical abuse he suffered at his father’s hands as a youth, largely trying to defend and protect his mother. They include the fact that he was shot ten years ago in an unsuccessful gang warfare related attempt to kill him. They include his failed efforts at that time to co-operate with police authorities which have led him to be viewed as a rat and a snitch by others in the criminal element and that now necessitates that he be confined in isolation for his own safety.

[106] Those are all reasons that may legitimately cause him to fear for his life. However, none of those reasons will ever justify Mr. Reid's continued obstinate acquisition and possession of illegal and restricted firearms, handguns that have no purpose other than to cause injury harm and death to other persons.

[107] I highly endorse Dr. Pilowsky’s views as they are reflected in these reasons for sentence and in her extensive report, a copy of which is to accompany these reasons to Corrections Canada. I sincerely hope that Corrections Canada officials will heed her endorsement of Psychotherapy or psychiatric treatment, and give Mr. Reid the treatment he needs. That would also enable him to address his fears of being killed while incarcerated. Such treatment may permit him to bolster and redress his own vulnerability and to live his life in a healthy manner despite the presence of those fears. Mr. Reid also needs to be trained in this next incarceration to reject the circle of criminality that has pervaded his life, and to be given the mental tools and the psychiatric stamina to change that life direction.

[108] However, as difficult as it may be for him and members of his family to accept, the offences in this case are very serious repeat offences. They cry out for an exemplary sentence, regardless of those factors. That sentence must both specifically deter Mr. Reid in future more than past sentences appear to have done, to a path of lawful conduct once he is paroled from serving this sentence, and that sentence must persuade him to channel the skills and energies his family believes he has into positive goals. I hope especially that those energies could be directed to keeping young boys like he was once, out of the Canadian prison system, by teaching them to respect the law and turn their backs on the gang and tribal violence that has claimed too many of their lives. But those hopes for his future do not alter that he has not listened to that message before nor do they obviate the need for the sentence that I must impose on him today.

[109] We have now reached the point where Mr. Reid has shown that he is virtually ungovernable by the laws of Canada because he refuses to refrain from arming himself. He insists on continuing to carry loaded firearms. In conducting himself in that way, he thumbs his nose at Canadian law. By his actions he essentially says that he is intent on carrying a gun and that there is nothing that we can do about it.

[110] This reality and the danger he presents to the community calls for Mr. Reid to be separated from the Canadian community for an extensive period for its protection because he is insistent on being in possession of a loaded handgun. He needs to go to prison. The term of his imprisonment must be lengthy. Those must be the results because specific deterrence of him and public safety remain the predominant features of relevance in the sentencing of this particular offender at this time on these repeat offences.

[111] No matter how tragic these circumstances may be, these are offences that cry out loudly for the imposition of a significant punitive sentence. It is plain that Mr. Reid must be separated from society for the safety of those in our communities. Mr. Reid's protestation to me on the first day of this sentencing hearing when he called out in court that he had never killed anybody, while correct, is certainly a function of good luck rather than good management. But as numerous recent instances in this city have demonstrated, that is luck that could just as easily have gone the other way and caused mayhem or mishap resulting in the death or severe injury of innocent members of the public. I need only refer to the shootings at the Eaton Center in Toronto a year ago in April of 2012, and the numerous shots that were fired and injuries caused at the Danzig Avenue street party shooting in June of 2012 to make the point.

[112] In my view, the failure of the criminal element in this metropolis to come to understand that handguns will not be tolerated, as a result of prior sentences imposed for gun related crimes going back to R. v. Danvers in 2005, show that the message is not getting through. That message must be that everyone in this city, regardless of their background or ethnic origin, must come to understand that if they are found in possession of illegal handguns, they will be dealt with in the strongest of terms. That must become the message since there is no evidence that prior expressions of leniency or possibilities of rehabilitation expressed by sentencing judges towards this gun packing criminal element has had any impact whatsoever. It has not reduced the number of illegal firearms that regularly move about on the streets of our downtown urban core hidden in the pockets or waistbands of the shirts, pants and jackets of the criminal element in the city.

[113] I have determined that the appropriate and fit sentence in this case is a term of imprisonment of 11 and one-half years, nine years for the firearms possession offences and a consecutive sentence of two and one-half years for the breach of prohibition and probation order convictions.

[114] Relative to the principle of totality, in my view this sentence of 11 1/2 years is consistent with other sentences imposed for egregious gun possession crimes, such as in Lambert. It reflects our community’s revulsion with the presence of the plethora of handguns that plague our city. It also specifically denounces this multiple repeat-offender's behaviour, I will hopefully serve as a deterrent to any who may be contemplating even one, much less continuing repeat gun possession offences. Finally, even though Mr. Reid has only been to the penitentiary previously for a minimum sentence of two years, and notwithstanding the decision in R. v. Borde[^28], for the preceding reasons that I have explained in detail, this sentence of 11 1/2 years is appropriate. Frankly I consider it to be as short a sentence as could possibly be imposed having regard to the serial nature of this offenders continued possession of illegal firearms in his continued failure to abide by our law.

[115] In determining the sentence to be served, I specifically note that I have chosen the sentence for each of the principal offences that is the lowest in the range that I regard as appropriate and applicable. I have done so in recognition of the scintilla of hope for rehabilitation that is pleaded for by defence counsel, by Mr. Reid's family, and by Mr. Reed himself in his speech to me at our last hearing.

[116] The total amount of time to be served is reduced by the 4 years of credit, including significant enhanced credit I have granted for Mr. Reid’s extensive pretrial custody. In imposing those sentences at the low end of what I consider to be the appropriate ranges for each of the offences, I have given Mr. Reid some limited credit for his limited expression of remorse, for the hopes of his family, and for my own hopes that he is not totally beyond rehabilitation, despite prior indications to the contrary.

[117] But the point that must be made is that the seriousness of the illegal gun possession culture within this urban area calls out for severely punitive sentences. The plain failure of prior more lenient sentences to convey the desired message to this offender specifically, or to the public at large, demands that I impose such a sentence even though it is a materially longer sentence than he has ever served before.

You will now stand up Mr. Reid.

[118] Gary Lalute Reid, after crediting you with 4 years of credit for time served in pre-trial custody against the global sentence of 11 and one-half years that I regard as the fit sentence in this case, I sentence you to serve a remaining custodial sentence of 7 and one-half years.

Michael G. Quigley J.

Released: April 19, 2013

COURT FILE NO.: CR10400004400000

DATE: 20130419

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GARY LALUTE REID

Defendant

REASONS FOR JUDGMENT

Michael G. Quigley J.

Released: April 19, 2013

[^1]: As explained below, while Mr. Reid has been convicted six times before of possession of an illegal handgun, his record only shows four prior lifetime prohibitions against possessing firearms. This appears to follow from the fact that a s. 109 order requires that the firearm have been loaded. There appears to have been a discretionary lifetime ban from the possession of firearms imposed on July 9, 1997, the first firearms prohibition conviction. There is no indication that firearm was loaded. For unexplained reasons, however, there is no indication that a mandatory section 109 prohibition order was imposed when he was convicted of possession of a loaded firearm on October 20, 2005 even though the language of s. 109(1) would indicate it ought to have been.

[^2]: 2011 ONSC 241, [2011] O.J. No. 385, at para. 26.

[^3]: [2005] O.J. No. 4599, at paras. 34-35.

[^4]: 2006 ONCJ 364, [2006] O.J. No. 3925, at para. 21.

[^5]: 2007 ONCJ 619, [2007] O.J. No. 5107.

[^6]: 2006 18347 (ON CA), [2006] O.J. No. 2179 (C.A.).

[^7]: 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.).

[^8]: R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206.

[^9]: Ruby, Clayton et al, Sentencing (Toronto: LexisNexis/Butterworths, 2004), at para 2.58.

[^10]: 1974 14 (SCC), [1975] 1 S.C.R. 729.

[^11]: (2009), 2006 18347 (ON CA), 209 C.C.C. (3d) 250 (Ont. C.A.) at para. 81 and footnote 1.

[^12]: [2005] O.J. No. 4599 (S.C.).

[^13]: (2011) ONSC 7170 at para. 3 and footnote 1.

[^14]: 2011 ONSC 3906 (S.C.J.).

[^15]: [2010] O.J. No. 3213 (S.C.J.).

[^16]: 2010 ONCA 745.

[^17]: [2001] O.J. No. 2090 (O.C.J.).

[^18]: See R. v. Robitaille, 1993 2561 (BC CA), [1993] B.C.J. No. 1404 (C.A.) at paras. 8-9; R. v. McCrae, [2008] B.C.J. No. 1079 (C.A.), paras. 11 and 16-18; R. v. Bush, 2006 BCCA 350, [2006] B.C.J. No. 1764 (C.A.).

[^19]: [2005] O.J. No. 2662 (C.A.).

[^20]: Ibid., paras. 19-21. While Jurianz J.A. dissented from the majority in the result, they appear to have agreed with his analysis.

[^21]: Above at paras. 41-43.

[^22]: Above at paras. 60-66.

[^23]: [2007] O.J. No. 1205 at paras. 18-26 (S.C.).

[^24]: (2011), ONSC 4123

[^25]: (2008) CarswellOnt 1007 (S.C.J.).

[^26]: 2012 ONSC 4981, [2012] O.J. No. 4104 (S.C.J.).

[^27]: 2012 O.C.A.

[^28]: (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.).

Her Majesty the Queen v. Gary Lalute Reid, 2013 ONSC 2342

Case Summary

Overview

Summary of Background Facts relating to the Offences

Circumstances of the Offences

Circumstances of the Offender

Positions of the Crown and the Defence:

Mitigating and Aggravating Factors

Principles of Sentencing

Analysis/Reasons

Range of Sentence

Should the “jump” principle apply in sentencing Mr. Reid?

Consecutive or concurrent sentence for breach of prohibition order?

How much credit should Mr. Reid receive for pre-sentence custody?

Final Decision

You will now stand up Mr. Reid.

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 7

Legal Tests 2

Legislation 1