ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-40000311-0000
DATE: 20130613
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
Owen alexander channer
L. Nadeau, for the Crown
Kevin Hunter, for Owen Alexander Channer
HEARD: May 3, 2013 and June 11, 2013
KELLY J.
reasons for sentencing
[1] The defendant, Mr. Owen Alexander Channer, pleaded guilty to the following offences on May 3, 2013:
a. possession of a firearm with ammunition while he was not the holder of an authorization or license to do so, contrary to s. 95(1) of the Criminal Code;[1] and
b. possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.[2]
[2] Mr. Channer now comes before me for sentencing. Crown Counsel seeks a sentence of 5 years. She submits that Mr. Channer should receive credit for pre-sentence custody on the basis of 1 day for each day served. Mr. Channer submits that the appropriate sentence is 3 years, 10 months for the firearms offence; 8 months concurrent for the drug offence and that he should receive enhanced credit of 1.5 days for each day served.
[3] For the reasons set out below, I find that the appropriate sentence is 4 years for the firearm offence and 8 months concurrent for the drug offence. Mr. Channer will receive enhanced credit on the basis of 1.5 days for each day served. Accordingly, he will be given credit for three years and he will be required to serve one more year in custody. He will be subject to a DNA order and s. 109 order for life.
The Facts
[4] The facts giving rise to the plea are summarized as follows:
a. On June 15, 2011 the Guns and Gangs taskforce of the Toronto Police Service were making observations of Mr. Channer. The police observed Mr. Channer leave a particular residence by cab. The police followed the cab and they observed, what they believed to be a hand to hand drug transaction in the back of the cab.
b. The police stopped the cab and arrested Mr. Channer. Found on his person was a loaded handgun with six rounds of ammunition in it. He was also found in possession of crack cocaine, hashish and $946 in cash.
[5] Although Mr. Channer takes responsibility for these offences, he did attempt to minimize the possession of the firearm offence by stating that having the firearm is “not as bad as it seems”. In his pre-sentence report, Mr. Channer stated that he had the firearm in his possession due to the “high risk nature of drug trafficking” but that he never intended to use it to commit such offences as robberies. He admits that he should not have been in possession of the firearm as it could have caused significant injury to both himself and to others.
Analysis
What is the appropriate sentence?
[6] In determining the appropriate sentence for Mr. Channer, I am guided by s. 718 of the Criminal Code which sets out the purposes of sentencing as follows:
a. to denounce unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[7] Bearing the purposes of sentencing in mind, I must also take into consideration the following: that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Further, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.[3]
[8] Both Counsel agree that sentences for gun violence in Toronto must address the paramount considerations of deterrence and denunciation.[4] Both have provided cases to the Court supporting their respective positions on sentencing.
[9] Crown Counsel provided the case of R. v. Fletcher[5] wherein Spies J. sentenced Mr. Fletcher to 6.5 years for the possession of two guns, two counts of breaching a prohibition, etc. This sentence was imposed following a trial.
[10] Crown Counsel also provided the case of R. v. Harutyunyan[6] wherein Benotto J. sentenced a 25 year-old man with no record to 4 years in custody for possessing a loaded prohibited weapon and obstructing justice. She held that because Mr. Harutyunyan possessed the weapon while driving a stolen vehicle, he was not entitled to the mandatory minimum sentence. The fact that the firearm was located in a public place “engaged considerations of denunciation and deterrence that were not captured in the mandatory minimum sentence of three years”.
[11] Another case relied upon by Crown Counsel is that of R. v. Dehaney[7] wherein Dambrot J. sentenced Mr. Dehaney to five years for the section 95(1) offence of possessing a loaded prohibited weapon. He sentenced Mr. Dehaney to 3 years concurrent for attempting to possess a firearm and two years consecutive for offences committed contrary to the Controlled Drugs and Substances Act. Such a sentence was imposed following a judge alone trial.
[12] Counsel for Mr. Channer asks the Court to rely on the case of R. v. Peterkin[8] wherein Justice Ken Campell imposed a sentence of four years following a trial. In that case, Mr. Peterkin was found in possession of a loaded restricted firearm and cocaine for the purpose of trafficking. When the police stopped Mr. Peterkin, he had the loaded handgun in his waistband with drugs and ammunition in his pants pockets. Mr. Peterkin had no prior criminal record and was 24 years of age.
[13] Counsel for Mr. Channer also asks the Court to rely upon the case of R. v. Z.L.M.[9] wherein Spies J. imposed a sentence of time served (37 months) plus one day and probation for Z.L.M. who was found guilty of possession of a loaded prohibited firearm, careless storage, possession of marijuana for the purpose of trafficking and possession of cocaine. Z.L.M. was arrested in a busy shopping mall at the age of 22. He advanced a Charter issue. When it was dismissed, Z.L.M. pleaded guilty and apologized.
[14] The cases relied upon by both counsel demonstrate that sentencing is not an exact science. As Doherty J. noted in R. v. Hamilton:[10]
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. …[T]he fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender[.]
[citations omitted]
[15] The mandatory minimum sentence for Mr. Channer’s possession of the loaded firearm is three years as dictated by s. 95(2) of the Criminal Code. Accordingly, three years is the minimum sentence that Mr. Channer must receive. In my view, such a sentence is inadequate and fails to consider his criminal record and the fact that Mr. Channer was also in possession of cocaine for the purpose of trafficking. In my view, these are aggravating factors that require an additional term of one year above the mandatory minimum sentence.
[16] Bearing these principles in mind, I will now turn to Mr. Channer’s circumstances.
The Aggravating Factors
[17] I consider the following to be aggravating factors regarding Mr. Channer’s involvement in the offences before the Court:
a. Mr. Channer has a criminal record with the following entries:
Date
Offences
Disposition
Feb. 14, 1996
Robbery.
4 months’ secure custody and 4 months’ open custody. 18 months’ probation.
Disguise with intent.
Possession of property obtained by crime over $5,000.
Possession of a weapon.
May 13, 1996
Possession of property obtained by crime over $5,000.
18 months’ probation.
Mar. 23, 2000
Fail to comply with recognizance.
1 day jail (7 days’ pre-sentence custody).
Apr. 6, 2000
Fail to comply with recognizance.
1 day jail (9 days pre-sentence custody).
Nov. 8, 2000
Fail to comply with recognizance.
1 day jail.
Dec. 13, 2000
Assault
1 day jail (49 days pre-sentence custody) and 18 months’ probation.
Possession of a weapon.[11]
15 days jail and 18 months’ probation concurrent.
June 24, 2005
Possession of narcotics for the purpose of trafficking.
90 days’ intermittent jail (10 days pre-sentence custody) and 15 months’ probation.
b. Mr. Channer’s academic history is less than admirable. He completed grade 11 before being incarcerated for approximately one year. He returned to school in 1997, but he was expelled. He then enrolled in an adult learning school in 1998, but was expelled three months later. He has not returned to school since this last expulsion.
c. Although Mr. Channer has been honestly employed, it appears that during his employment as a towing and scrap metal worker he felt he required more money so he turned to drug trafficking. After a conviction, he stayed out of the drug trafficking business for a short period of time before returning to it to earn money.
d. It does not appear that Mr. Channer has been legitimately employed for approximately ten years.
e. Mr. Channer engaged in the drug trafficking trade for a commercial purpose. The offences involve the dangerous combination of drugs and a firearm.
f. Despite having access to programs such as the General Educational Development program as well as life skills and anger management programs while incarcerated, Mr. Channer has not taken advantage of such opportunities.
[18] The author of the pre-sentence report suggests that because of the company Mr. Channer keeps and other factors, Mr. Channer will continue to be a risk to public safety.
The Mitigating Factors
[19] I consider the mitigating factors to be as follows:
a. Mr. Channer was born on August 21, 1978. He has three children who are 13, 11 and 10 years of age from a long-term relationship with Ms. Viva Arthur. Although Mr. Channer is not in a relationship with Ms. Arthur, he maintains communication with her for the sake of the children. Before being incarcerated, he would visit the children on weekends. He maintains telephone contact with them from jail.
b. Ms. Arthur confirmed that Mr. Channer pays child support in the amount of $400 monthly and that, more recently, he was exercising his access visits with the children regularly before being incarcerated for these offences. Ms. Arthur praises Mr. Channer as a “great father”. She has seen improvement in the children’s behaviour because of this relationship.
c. Mr. Channer enjoys the support of his immediate family, including his mother, father and sister. Many people were present in the courtroom for the sentencing hearing to show such support.
d. Despite his sketchy educational background, Mr. Channer has expressed an interest in returning to school to study culinary arts.
e. Mr. Channer has demonstrated that he is employable. For the period from 2000 to 2004, he was employed as a machine operator. He was employed for two years in one job and his employment only ended when the company went bankrupt. He has also been employed in the scrap metal collection and towing business.
f. Mr. Channer recognizes that finding legitimate employment upon his release may be difficult. However, he added that he is accustomed to working for $10 per hour and that if he is in need of other monies, he will obtain a second job.
g. Mr. Channer admitted to consuming alcohol and marijuana in the past but denies using either since 1999.
h. Mr. Channer has been described by his family as “loving”, “caring”, “family oriented”, “dependable” and “independent”.
i. Mr. Channer has expressed an interest in attending social programs that assist individuals in conflict with the law. This, he says, may help him find a job and teach him life coping skills.
j. Mr. Channer pleaded guilty to the offences before the Court. As such, he saved the expense of requiring that Crown Counsel prove its case beyond a reasonable doubt. The plea of guilt also provided certainty of the result. Another handgun has been seized and removed from the streets of Toronto.
k. Despite the entries on his criminal record, there is a gap of six years from the last entry to this one.
l. On prior occasions, it appears that Mr. Channer complied with his terms of probation. It has been reported that Mr. Channer reported to probation as directed and completed his community service hours in a timely manner. He has been described as “polite” and “cooperative” during his office visits with the probation office.
m. At the conclusion of the sentencing hearing, Mr. Channer addressed the Court. He said that he knows that he is “wrong” for carrying a weapon and “doing” two years in custody has made him realize a lot. He has family friends that are supporting him. He says: “I know that I am wrong and when I get out I want to move right”. He says that he is a good person trying to change his life when he gets out.
[20] I find the following to be a significant mitigating factor when considering the appropriate sentence to impose. Mr. Channer was arrested on June 15, 2011 for the two offences for which he has pleaded guilty (and others that were withdrawn). However, he was charged with a significant number of other offences arising from a search warrant executed at 299 Grandravine Drive, Unit 220 in the City of Toronto. This warrant was executed after Mr. Channer was arrested on the two charges currently before the Court.
[21] The facts of that search indicate that at approximately 11:33 p.m. officers from the Guns and Gangs Task Force, with the assistance of the Emergency Task Force, executed a warrant at the premises described above. Found in the residence were the following:
a. 8 adults and three youths;
b. 1 loaded Ruger .357 magnum revolver with 6 rounds;
c. 1 loaded .44 magnum revolver with six rounds;
d. 1 loaded .45 revolver with six rounds;
e. 18.08 grams of crack cocaine;
f. a quantity of marijuana; and
g. several digital scales.
[22] One of the co-accused charged with respect to those offences arising from the search warrant was Ms. Daphney Thompson. She was Mr. Channer’s girlfriend at the time of these offences. Mr. Channer was initially charged with offences arising from the execution of the search warrant.
[23] All matters proceeded to the preliminary hearing and various accused persons signed statutory declarations, following which Crown Counsel decided not to proceed against them. Ms. Thompson and Mr. Channer were committed to trial on charges arising from the search warrant. Mr. Channer was committed to stand trial on those charges arising from his arrest.
[24] I am advised that Mr. Channer was willing to admit his guilt with respect to the firearm and narcotics located on his person at the time of his arrest, but he would not admit guilt with respect to those items located in the apartment. As soon as Crown Counsel indicated that they were not proceeding against him on the items found in the apartment, he engaged in a pre-trial discussion regarding a plea and entered the plea shortly thereafter. He pleaded guilty to two offences. Several others were withdrawn by the Crown.
[25] I am advised that the plea to the two offences before the Court would have been registered well before now had the more serious charges been withdrawn earlier. Obviously, the jeopardy that Mr. Channer faced prior to the charges being withdrawn was significantly different than the jeopardy he currently faces.
What is the Fit Sentence?
[26] What is the fit sentence? Considering the above-mentioned factors, I find it to be 4 years for the possession of the loaded handgun in contravention of s. 95(1) of the Criminal Code and eight months concurrent, for the drug offences. It is my view that such a sentence addresses the lethal combination of possessing both a firearm and narcotics for sale.[12]
[27] Lastly, Mr. Channer shall be subject to a DNA order and a s. 109 order for life.
Should Mr. Channer receive enhanced credit?
[28] In coming to my conclusion that Mr. Channer should receive enhanced credit for his pre-sentence custody, I have considered Sections 719 (3) and 719 (3.1) of the Criminal Code which state:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
Both Counsel agree that Sections 515(9.1) and 524(4) and (8) are not applicable here.
[29] Additionally, I have considered the principles set out in R. v. Summers,[13] wherein the Court of Appeal dealt with the issue of whether a sentencing judge has the discretion under s. 719 (3.1) of the Code to give enhanced credit to an offender for pre-sentence custody in order to account for the offender’s loss of remission and parole elegibility while in pre-sentence custody. Cronk J.A., writing on behalf of the Court, recognized that such a discretion exists. In reaching this conclusion, she noted that the legislation does not require “exceptional circumstances” to justify enhanced credit.
[30] Mr. Channer has spent two years in pre-sentence custody. He spent approximately one year at Maplehurst and one year at the Don Jail. Counsel for Mr. Channer had records from both institutions subpoenaed to the Court. Only the Maplehurst records were produced. The records from the Don Jail were not delivered.
[31] The Maplehurst records indicate that Mr. Channer has been subject to 37 lockdowns: 20 full day and 17 partial. There is one incident recorded at the Maplehurst institution resulting in a loss of privileges for ten days.
[32] Mr. Channer says that he has been sick while in custody. Medical records were produced that corroborate this fact. Mr. Channer has lost 57 pounds.
[33] Mr. Channer told the Court that there have been lockdowns on many days in the Don Jail. This past weekend, the Don Jail was locked down all weekend. There is mould in the facility and there has been flooding. Mr. Channer said: “there is a lot of stuff that goes on over there that [you] do not hear about”. He mentioned that there are a significant number of stabbings of inmates. The prisoners do not get yard time and “a lot of stuff they are supposed to get”.
[34] When I expressed some concern that Mr. Channer had not participated in any programs while incarcerated, he said: “when you go into programs, there are people from different ranges”. “A lot of stuff happens when they get together.” The Court was left with the impression that the programs provide an ideal opportunity to commit a stabbing or other violence. Further, there are “code blues” when the programs are “cut off”.
[35] In addition to the harsh conditions described, I find that there has been a loss of parole eligibility. As stated above, Mr. Channer would have been willing to plead to the two offences before the Court earlier had Crown Counsel decided to withdraw the other more serious charges. I am advised by Counsel for Mr. Channer and I accept, that Mr. Channer was always willing to take responsibility for those items found on his person. If he had done so, he would have been in the penitentiary a lot sooner. This is obvious due to the fact that as soon as the other charges were withdrawn, he entered a plea of guilt.
[36] In my view, Mr. Channer is entitled to enhanced credit at 1.5 days for every 1 day spent in custody. It appears that he was willing to plead guilty to these two offences well in advance of May 3, 2013, but did not do so because of the other charges to which his defence was that he had neither possession nor had knowledge of the illegal items in the apartment. There is nothing to suggest that he delayed the proceedings in any way. He has suffered some hardship while in prison and gave a reasonable explanation for not participating in any programs while serving pre-sentence custody. There is only one incident in which he lost his privileges for 10 days. Otherwise, it appears that Mr. Channer has been a cooperative inmate.
Conclusion
[37] For the abovementioned reasons, I sentence Mr. Channer to 4 years less 3 years of pre-sentence custody. Accordingly, he will be required to serve 1 more year in custody. He will be subject to a DNA order and a s. 109 order for life. A forfeiture order was signed on June 11, 2013 on consent.
Kelly J.
Released: June 13, 2013