ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20130621

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KIDAIN JOHNSON

E. Jackson, for the Crown
R. Rusonik, for Mr. Johnson

HEARD: June 7 and 13, 2013

TROTTER J.

reasons for sentence

1. INTRODUCTION

[1] This sentencing decision is about a loaded gun, drugs and the proceeds of crime – the constituent elements of a very common and serious problem in Toronto. Mr. Johnson was found guilty of possessing each of these items.

2. CIRCUMSTANCES OF THE OFFENCES

[2] I do not plan to review the facts of the offences in any detail, which are found in my earlier Reasons for Judgment (2013 ONSC 2360, [2013] O.J. No. 1846). Suffice to mention here, acting on a confidential tip, the Toronto Police Service executed a search warrant at a downtown apartment on April 20, 2011. As it was suspected that the target of the search, Mr. Johnson, was in possession of a handgun, the Emergency Task Force was brought in to assist.

[3] After a “dynamic” entry, Mr. Johnson was found in the apartment. He had a loaded handgun in his waistband, in addition to quantities of crack cocaine and marijuana. He also had $700 in cash. After a judge alone trial, I found Mr. Johnson to be in possession of the firearm, resulting in findings of guilt for possession of a loaded prohibited firearm (s. 95(1) of the Criminal Code), unauthorized possession of a firearm (s. 91(2)) and carry a concealed weapon (s. 90(1)). Mr. Johnson admitted to possessing the cocaine (6.47 grams) that was subsequently found in his front pocket at the police station, which he also admitted was for the purposes of trafficking (Controlled Drugs and Substances Act, s. 5(2)). With respect to the cash, Mr. Johnson entered a plea of guilty to possessing the proceeds of crime (Criminal Code, s. 354(1)(a)).

3. MR. JOHNSON’S CIRCUMSTANCES

[4] Mr. Johnson is 26 years old. He is originally from Jamaica. I am advised that, because of the mandatory minimum sentence that Mr. Johnson will receive in this case (as discussed below), he will be deported without any right of appeal.

[5] Mr. Johnson has a criminal record which includes three convictions for failing to comply with a recognizance. In 2006, he was convicted of possession of a Schedule II substance under the Controlled Drugs and Substances Act, as well as possession of the proceeds of crime. In 2009, he was found guilty of possession of cocaine (a Schedule I substance). Mr. Johnson has not previously been found guilty of trafficking in drugs, nor has he been convicted of an offence involving violence or the possession of weapons.

[6] Mr. Johnson has been in pre-trial custody since the date of his arrest, amounting to roughly 26 months of pre-trial detention. His time has been split between the Metro West Detention Centre (MWDC), where he spent 355 days, and the Don Jail, where he has spent 438 days.

[7] Information about the conditions of pre-trial detention was obtained from both institutions. At the MWDC, Mr. Johnson spent 301 days either double or triple bunked. While this information is helpful, it would have been more helpful had the institution focused on the number of days that Mr. Johnson was triple-bunked, because double-bunking is considered “normal” in Ontario institutions. Of his 355 days at that institution, Mr. Johnson was denied access to fresh air on 113 occasions. Lastly, Mr. Johnson was subject to lockdown conditions (i.e., locked in his cell for more than 12 hours at a time) on 28 days.

[8] Mr. Johnson then moved to the Don Jail, where the conditions were more difficult. At the Don Jail, he spent 130 nights triple-bunked. Inmates such as Mr. Johnson, in the general population, are entitled to daily fresh air access. However, due to staff shortages and inclement weather, inmates at the Don Jail actually access fresh air an average of five days per month. Additionally, there is no opportunity to exercise at the Don Jail. Lastly, while the MWDC provides data on lockdowns, the Don Jail was not forthcoming on this issue, apparently because no statistics are kept relating to these occurrences. I will have more to say about this below.

4. POSITIONS OF THE PARTIES

[9] For the Crown, Ms. Jackson submits that a total sentence of five years’ imprisonment is appropriate. She further submits that circumstances might justify enhanced credit for a portion of Mr. Johnson’s pre-trial detention, but not for the entire duration.

[10] On behalf of Mr. Johnson, Mr. Rusonik submits that Mr. Johnson receive the mandatory minimum sentence for the offence under s. 95(1) of the Criminal Code, and a further three months consecutive in total for the remaining offences. He submits that Mr. Johnson should receive enhanced credit on a 1.5:1 basis for all pre-trial custody (26 months), which would amount to credit for 39 months (or the time already served).

5. ANALYSIS

[11] The pivotal offence in the cluster of offences for which Mr. Johnson must be sentenced is the conviction for possessing a loaded handgun, contrary to s. 95(1) of the Criminal Code. As this is Mr. Johnson’s first conviction for this offence, he is subject to a mandatory minimum sentence of three years’ imprisonment (s. 95(2)(a)(i)).[^1] To a large extent, the sentences to be imposed for the other offences tend to hinge on the sentence imposed under this provision.

[12] I start my analysis on this issue with a quote from the recent Court of Appeal decision in R. v. Brown, 2010 ONCA 745, at para. 14: “Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.” Similar statements can be found in other decisions of the Court of Appeal: see, for example, R. v. Danvers (2005), 2005 30044 (ON CA). This approach to sentencing in handgun cases can be found in numerous decisions already released this year by members of this court sitting in Toronto: see R. v. Scarlett, 2013 ONSC 562, R. v. Williams, 2013 ONSC 1855, R. v. Peterkin, 2013 ONSC 2116, R. v. Ellis, 2013 ONSC 2409, R. v. Dehaney, 2012 ONSC 3014 and R. v. Gobire, 2013 ONSC 3073. The importance of these goals of sentencing is heightened when the handgun is loaded and by the “toxic combination” of firearms and drugs.

[13] Parliament has amended the Criminal Code to ensure that these goals of sentencing are achieved. Prior to 2008, possession of a loaded handgun carried a one-year minimum sentence for an offence committed under s. 95(1) when proceeded with by indictment. By virtue of the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 8, s. 95(2) was amended to create a three-year minimum sentence for a first offence and a five-year minimum sentence for any subsequent convictions under s. 95(1).

[14] Ms. Jackson submits that, in applying the minimum mandatory sentence provisions, it is important to bear in mind the prescription of two members of the Supreme Court of Canada in R. v. Morrisey (2000), 2000 SCC 39. In that case, the Court upheld the constitutionality of the mandatory minimum sentence for criminal negligence causing death while using a firearm. In a concurring judgment, Arbour J. (McLachlin J., concurring) said the following at p. 34:

…..the mandatory minimum sentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called "best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposed on all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not only defeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [emphasis added]

The Supreme Court has not returned to this theme in subsequent cases. In R. v. Ferguson (2008), 2008 SCC 6, the Court upheld the mandatory minimum sentence for committing manslaughter with a firearm.

[15] Other appellate courts have occasionally considered the import of the “inflationary floor” dicta from R. v. Morrisey, supra. In R. v. B.C.M. (2008), 2008 BCCA 365, the Court held that the views expressed by Arbour J. are not “precedentially authoritative”, but they may provide a sensible approach to merging the principle of proportionality in s. 718.1 of the Criminal Code with mandatory minimum sentences. This approach was followed in R. v. Guha (2012), 2012 BCCA 423, R. v. Newman, 2009 NLCA 32 and R. v. Colville (2005), 2005 ABCA 319.

[16] I agree with the characterization of the British Columbia Court of Appeal in R. v. B.C.M., supra, that the “inflationary floor” passage is not, strictly speaking, “precedentially authoritative.”[^3] However, being considered dicta, it must be treated as having great persuasive value.

[17] Identifying the “best offender” is not as straightforward as it might seem. This classification will typically involve an assessment of the offender’s background and a qualitative evaluation of the seriousness of the offending under s. 95.

[18] Gauging the relative seriousness of conduct under s. 95(1) is even more challenging.

[19] Moreover, the mandatory minimum sentence regime has proliferated since R. v. Morrisey, supra. In the case of s. 95 of the Criminal Code, it has also become more complicated by virtue of recent amendments.

[20] In this case, the Crown points to Mr. Johnson’s criminal record to submit that he is not the “best offender” and that he should receive a sentence beyond the three year minimum, one that in combination with the other sentences, reaches five years in totality.

[21] It is unclear what effect the enhanced minimum sentence for a second or subsequent offence under s. 95(1) should have on this analysis.

[22] Of course, proportionality in s. 718.1 of the Criminal Code is the fundamental principle of sentencing.

[23] Using the mandatory minimum sentence as a starting point, I must examine the circumstances of the offences and the offender within the framework of the typical aggravating and mitigating factors.

[24] Mr. Johnson has a criminal record, which is quite modest.

[25] A further factor that is mitigating is the immigration consequences that will befall Mr. Johnson once sentence is imposed.

[26] In terms of aggravation for the offence under s. 95(1), the Crown relies upon the context in which the offence was committed.

[27] The evidence at trial provided no real context for Mr. Johnson’s possession of the loaded gun.

[28] At a minimum, Mr. Johnson travelled to the apartment where he was found, a place that was not his own.

[29] In all of the circumstances of this case, including Mr. Johnson’s unrelated and relatively modest record and the fact that he will be subject to deportation by virtue of the imposition of the three-year mandatory minimum sentence, this is an appropriate case to impose three years under s. 95(2)(a)(i).

[30] Counsel made no submissions on the rule against multiple convictions (R. v. Kienapple (1975), 1974 14 (SCC)) as they relate to the other firearm offences.

[31] In terms of the drug offence, I must impose a sentence that is consecutive to the three-year mandatory minimum sentence.

[32] The Court of Appeal has directed that sentences for being involved in the sale of cocaine must emphasize the principles of denunciation and general deterrence.

[33] In the circumstances of this case, especially given Mr. Johnson’s related criminal record, the amount of crack found on his person and the level of sophistication of his drug-selling operation, I impose a sentence of one year imprisonment consecutive for the offence of possession of cocaine for the purposes of trafficking. As for the proceeds offence, I impose six months’ concurrent.

[34] Accordingly, subject to what I have to say about credit for pre-trial custody, Mr. Johnson is sentenced to four years’ imprisonment.

[35] The issue of whether enhanced credit for pre-trial custody should be granted is now governed by the recent decision of the Court of Appeal in R. v. Summers (2013), 2013 ONCA 147.

[36] As noted above, material was provided to me from the two institutions in which Mr. Johnson has been incarcerated.

[37] I am troubled by the fact that no records are kept of the lock-downs that occur at the Don Jail.

[38] Ms. Jackson argues that, if enhanced credit is to be awarded, it should not be applied to the entire time that Mr. Johnson has been incarcerated.

[39] In all of the circumstances, especially in view of the fact that the last year of Mr. Johnson’s confinement has been at the Don Jail, he is entitled credit on a 1.5:1 basis, for a total of 39 months.

6. CONCLUSION

[40] Mr. Johnson is sentenced to a total sentence of four years imprisonment. He is sentenced to three years under s. 95(1), one year consecutive under s. 5 of the Controlled Drugs and Substances Act. He is sentenced to one year concurrent under s. 90(1) of the Criminal Code and one year concurrent under s. 354. The finding of guilt under s. 91(2) is conditionally stayed. After credit for pre-trial custody is taken into account, Mr. Johnson will serve a further nine months in jail.

[41] Lastly, I make a DNA order, a lifetime prohibition under s. 109 and a forfeiture order for the drugs, digital scales, firearm, ammunition and Canadian currency that was seized.

TROTTER J.

Released: June 21, 2013