ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-9/653
DATE: 20130125

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

RICARDO SCARLETT

Kelly Beale, for the Crown
Richard Federowicz, for Ricardo Scarlett

HEARD: December 10–11, 2012

G.R. Strathy J.

[1] Ricardo Scarlett was convicted on November 2, 2012 of possession of a loaded prohibited firearm contrary to section 95(1) of the Criminal Code. He now appears for sentencing.

[2] Subsection 95(2)(a)(i) of the Code provides for a mandatory minimum penalty of three years imprisonment for a first offence. The accused submits that the minimum penalty has been declared inconsistent with the Charter of Rights and Freedoms and is of no force and effect by the declaratory judgment of Molloy J. in R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25. For the reasons set out below, I accept that submission, but I have concluded that three years imprisonment is the appropriate sentence in this case.

The Circumstances of the Offence

[3] On February 17, 2009, the Drug Squad executed a search warrant at 2015 Davenport Road, Toronto. On entering the premises, they saw Mr. Scarlett in the hallway facing them. He turned and ran down the hallway clutching his waist. Two police officers chased him into a bedroom, where he was brought to the ground and handcuffed. A .38 calibre handgun, wrapped in a bandana, was found tucked inside his pants. It was loaded with six bullets. The serial number had been obliterated.

[4] A total of 3.9 grams of crack cocaine was found in the premises. Some was in plain view and some was concealed inside a stereo.

[5] The Information to Obtain the search warrant stated that Mr. Scarlett was a subject of an investigation into trafficking in crack cocaine from the premises. A police officer testified that during that investigation he purchased crack cocaine at the premises. He identified Mr. Scarlett as the seller. He could not specify the amount of crack that he purchased, but said that he spent $100. Purchases were made from another individual at the premises on two other occasions.

[6] The officer was not cross-examined concerning his identification of Mr. Scarlett or his evidence that he had bought cocaine from him. The evidence satisfies me, beyond a reasonable doubt, that Mr. Scarlett’s possession of the handgun was associated with the trafficking in cocaine from the premises.

The Circumstances of the Offender

[7] Mr. Scarlett is 26 years old. He was 22 at the time of the offence. He came to Canada from Jamaica when he was eight years old. He and his seven siblings were raised by his mother. He is estranged from his father. He now lives with his mother, a sister and a brother. An older brother passed away in violent circumstances five years ago. He graduated from an adult high school in Toronto. He hopes to pursue some educational upgrading, but his counsel says that he has been unable to do so due to this pending charge. He has been employed in a clothing store, but lost his job recently when the store closed. His counsel describes him as intelligent, thoughtful and bright, with a positive outlook on life. He has permanent resident status in Canada and a sentence of more than two years less a day could impact that status. He has no prior convictions. No specific evidence was put before me concerning Mr. Scarlett’s prospects for rehabilitation.

[8] Mr. Scarlett was arrested on February 17, 2009 and was in custody until March 3, 2009. When he was initially released on bail, he was subject to house arrest, but was permitted to leave the house for work purposes or in the company of his surety. On March 16, 2010, a 10:30 curfew was substituted for the house arrest. Mr. Scarlett has complied with the terms of his bail.

Sentencing Principles

[9] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society, by imposing sanctions that have one or more of the following objectives:

(a) denunciation of unlawful conduct;
(b) specific and general deterrence;
(c) separation of offenders from society;
(d) assisting in rehabilitating offenders;
(e) providing reparation for victims or the community;
(f) promoting a sense of responsibility in offenders and acknowledgment of harm done to victims and the community.

[10] Section 718.1 expresses the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] Section 718.2 expresses other important sentencing principles that the court may take into account, depending on the circumstances, including, as applicable to this case:

(a) any relevant aggravating or mitigating circumstances relating to the offence or the offender;
(b) the requirement that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances;
(c) the requirement that an offender should not be deprived of liberty if less restrictive sanctions may be available in the circumstances.

[12] As I have noted earlier, Parliament has stated that the minimum sentence for this offence, when it is prosecuted by indictment, is three years. When the offence is prosecuted summarily, the maximum penalty is imprisonment for one year. There is therefore no jurisdiction to impose a term of between one and three years, absent a finding that the provision is unconstitutional.

[13] The Courts in this jurisdiction have frequently observed that sentences for firearms offences must reflect the sentencing goals of denunciation, deterrence and protection of the public. As stated by Armstrong J.A. in R. v. Danvers, 2005 30044 (ON CA), “[o]ur courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms.” Our courts have also noted that this concern is particularly acute in the Metropolitan Toronto region, where there is substantial, and justifiable, concern about the prevalence of firearm-related crime: see R. v. Brown, 2009 ONCA 563.

[14] That concern is intensified in cases where the crime involves a loaded firearm, as there is a reasonable inference that someone who carries a loaded firearm does so with the expectation that it may be used.

Conclusion

[49] I have concluded that a sentence of three (3) years imprisonment is necessary in order to accomplish the objectives of denunciation and deterrence of a very serious offence. Mr. Scarlett had in his possession, available for immediate use, a powerful, fully-loaded, deadly weapon. Its only purpose was to kill and maim. It is reasonable to infer, since he had it in his possession, that he was prepared to use it for that purpose. He put himself and the police officers at great risk when he ran from them with the gun tucked into his pants. The fact that he possessed the handgun in association with drug trafficking on the premises is a serious aggravating factor. So is the fact that the serial number was defaced. The circumstances of this case are a far cry from Smickle and a denunciatory and deterrent sentence is required.

[50] In crafting a sentence at the lower end of the range of sentences for this offence, I have taken into account Mr. Scarlett’s relatively young age, his clean record and his commendable behaviour while on bail. This gives me some optimism concerning his prospects for rehabilitation.

[51] There will be credit of four (4) months for Mr. Scarlett’s pre-trial custody and to reflect the period of house arrest and his restrictive bail terms thereafter. He will therefore serve a sentence of two (2) years and eight (8) months.

[52] There will also be a mandatory s. 109 weapons prohibition order in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and in respect of any other firearm for 10 years, and an order forfeiting the handgun and ammunition under s. 491(1) of the Criminal Code.

[53] Given the nature and circumstances of the offence, and the absence of any evidence of an adverse impact on Mr. Scarlett’s privacy or security of the person, it is in the interests of justice to make a DNA order under s. 487.051(2) of the Criminal Code and it is so ordered.

G.R. Strathy J.

Released: January 25, 2013