ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 330/12 & 346/12

DATE: 2013-10-04

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jahvar Marshall

Accused

Natalie Boivin, for the provincial Crown
Denys Bradley, for the federal Crown
Ted Conroy, for the accused

HEARD: October 4, 2013

ORAL DECISION ON SENTENCE

Cornell j.:

Overview

[1] On June 14, 2013, I found Jahvar Marshall (“Mr. Marshall”) guilty of possession of a loaded prohibited firearm following a judge-alone trial.

[2] At the time of hearing sentencing submissions on August 27, 2013, Mr. Marshall pled guilty to possession of cocaine for the purpose of trafficking and two counts of fail to comply with a bail recognizance. I am now called upon to impose sentence.

Factual Background

[3] A detailed review of the factual background for the weapons offence can be found in my decision which was rendered on June 14, 2013. For sentencing purposes, I will now set out the salient background information for all offences.

Weapons Offence

[4] The Greater Sudbury Police Service received information from a confidential informant that a black male named Kyle was travelling to Sudbury in the company of three other males and a female. Specific information was provided about vehicles and licence plate numbers as well as the address where the drugs were to be taken.

[5] The residence was placed under surveillance and after observing activity that was consistent with drug transactions, a search warrant for the residence was obtained.

[6] During the course of the search, a black Lacoste bag with a black strap was located in a closet near the rear door. This bag was found to contain a Burberry receipt, a $25 Master Card gift card and a Taurus .38 calibre Special handgun, which contained five rounds. As a result of this discovery, Mr. Marshall and two co-accused were jointly charged with possession of a loaded prohibited firearm. Shortly before the trial, the charges were severed and the two other co-accused testified against Mr. Marshall.

[7] Mr. Marshall testified. He acknowledged that he is also known as Kyle. He acknowledged that the black Lacoste bag that was seized from the residence during the course of the search was his bag. He denied having any knowledge of the contents of the bag, including the gun, at the time it was seized.

[8] He admitted that he had been to Sudbury on many occasions to sell drugs as it was possible to “make really good money” selling drugs in Sudbury. He would come to Sudbury in the company of friends or acquaintances so that these individuals could sell their own drugs and make money.

[9] He testified that he used the black bag to carry personal items such as his phone, smokes, chargers, drinks and receipts.

[10] Raymond Kahn, one of the co-accused, testified that the gun belonged to Mr. Marshall.

[11] Mr. Marshall would use Cathryn Gagan’s residence as a base to sell drugs in Sudbury. Ms. Gagan testified that Mr. Marshall had told her that he got robbed after a deal went bad and that he needed protection. She specifically told him not to bring a gun to her residence.

Trafficking / Breach of Probation Offences

[12] Mr. Marshall was arrested and charged with the weapons offence on October 6, 2011. On October 24, 2011, he was granted bail on strict conditions. Among other things, the recognizance of bail required Mr. Marshall to abide by a curfew, to not be away from his place of residence unless in the company of one of his sureties, to abstain completely from the use, possession or consumption of non-prescribed drugs, and to remain away from the City of Greater Sudbury unless accompanied by one of his sureties for court appearances and meetings with his lawyer. He was to reside with his mother, Shanique Marshall, in North York, Ontario.

[13] On January 17, 2012, Mr. Marshall was found in Sudbury in possession of a digital scale, pepper spray, cash in an amount of $676.60, six cell phones as well as 60 grams of cocaine having a street value of approximately $5,000 to $6,000.

Accused’s Background

[14] A pre-sentence report was prepared which provided the following background information.

[15] Mr. Marshall is a 23 year old Canadian man of Jamaican descent. He is one of six children born to Joyce Marshall. He was born and raised in the Jane and Finch neighbourhood of Toronto.

[16] Mr. Marshall graduated from grade 12 at the age of 17. He indicates that he has completed one year of the two-year Culinary Management Program. His stated goal is to finish College, be his own boss and own a restaurant.

[17] Although Mr. Marshall uses alcohol, there is no suggestion that he is a problem drinker.

[18] He acknowledged that his marijuana habit has progressed from three or four times a week to smoking up multiple times a day. His habits cost him approximately $100 a week which he supports by selling drugs. He denies using any other type of illicit drugs or substances.

[19] A number of other individuals were interviewed at the time of the preparation of the pre-sentence report. Mr. Marshall is consistently described by those people as a leader as opposed to a follower.

[20] There is no indication that Mr. Marshall has a prior criminal record and accordingly he is to be treated as a first-time offender.

[21] When interviewed at the time of the preparation of the pre-sentence report, Mr. Marshall denied any involvement in the weapons offence and “showed no remorse for any of his criminal actions”. The report goes on to say: “At this point, the subject does not see the need to make changes in his life nor is he open to counselling”.

Position of the Parties

The Crown

[22] The provincial Crown suggests that the appropriate range of sentence for the weapons offence is three to four and one-half years and that on the facts of this case, the appropriate sentence is four years.

[23] In making this determination, the provincial Crown suggests that one additional year should be added to the minimum sentence of three years based upon the aggravating factor that Mr. Marshall was in possession of the gun while being involved in drug deals and that he breached his bail conditions after being released.

[24] The federal Crown takes the position that the principles of denunciation and deterrence and Mr. Marshall’s flagrant disregard for the terms of his bail warrant an additional sentence of one year to be served consecutively for the drug charge.

[25] The Crown points to the following aggravating factors:

i) In order to conduct the drug transactions on January 17, 2012, Mr. Marshall was required to breach many of the conditions in his recognizance of bail including the requirement that he reside with his mother in North York, that he not be in possession of a cell phone, that he not be in possession of illegal drugs, that he abide by a curfew, and that he not come to the City of Sudbury except for court appearances or meetings with his lawyer;

ii) Cocaine is an addictive drug which causes a great deal of harm to society;

iii) The fact that Mr. Marshall was in possession of a substantial amount of cocaine which had a street value of approximately $5,000 to $6,000;

iv) The fact that he travelled over 400 kms to sell and distribute the cocaine;

v) The fact that rather than being gainfully employed, Mr. Marshall chooses to sell drugs to support himself and his drug habit;

vi) The fact that considerable planning would have been involved in acquiring this quantity of drugs as well as making arrangements to transport and sell the cocaine in another city;

vii) The fact that Mr. Marshall has demonstrated no remorse for his actions;

viii) The fact that Mr. Marshall has stated that he has no desire to change or to be involved in counselling;

ix) The fact that Mr. Marshall was in possession of the gun while involved in drug activity.

The Defence

[26] Defence counsel indicated that the appropriate range for the weapon charge was 36 to 40 months. On a stand-alone basis, defence counsel indicated that the drug charge would ordinarily command a sentence of six to twelve months but that on the facts of this case, it was appropriate that a four month sentence be imposed for the drug offence, to be served consecutively.

[27] On behalf of the accused, it was pointed out that he is a young man with no previous criminal record. The gun was not concealed and was not carried by Mr. Marshall during the course of a drug transaction. The gun was found to be hidden in a private residence as opposed to being found in a public place. The weapon in question is not an automatic weapon and did not have a large magazine.

Criminal Code Provisions

[28] The fundamental purpose and principles of sentencing are set out in section 718 of the Criminal Code of Canada as follows:

718. 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 just sanctions that have one or more of the following objectives:

(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.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6.

[29] Section 718.1 of the Criminal Code requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[30] I am also to be guided by the sentencing principles contained in section 718.2 of the Criminal Code which, among other things, requires me to take into account any aggravating or mitigating circumstances relating to the offence or the offender and to impose a sentence which is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Appropriate Sentence Considerations

[31] A very useful review of the law in this area was conducted by Code J. in R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878. In that case, a nineteen year old pleaded guilty to possession of a loaded prohibited hand gun and was sentenced to 40 months imprisonment. In determining the length of the sentence, Code J. took into account the fact that Nur entered a guilty plea. In addition, he was a youthful offender with good rehabilitative prospects. The observation is made that handguns have become a more prevalent societal problem warranting increased sentences to provide the needed deterrence and denunciation.

[32] In R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644, a youthful first offender found to be in possession of a loaded prohibited firearm in a public area was sentenced to three years imprisonment. The possession of the handgun was associated with trafficking in cocaine.

[33] In R. v. Johnson, 2013 ONSC 4217, [2013] O.J. No. 2957, Trotter J. found that a 26 year old accused with a criminal record with failure to comply, possession of proceeds of crime and possession of cocaine, should receive three years for the weapons offence and one year consecutive for the possession of cocaine for the purpose of trafficking.

[34] Finally, in R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614, Campbell J. found that a 22 year old accused, with no prior criminal record who was in possession of a loaded firearm and cocaine for the purpose of trafficking, should receive a sentence of three years for the firearms offence and one year consecutive for the drug offence. In coming to that conclusion, Campbell J. made the following observations at para. 23:

23 This firearms offence was not, however, the only offence committed by the accused. He was also found in possession of commercial quantities of cocaine and marihuana and the other typical trappings of the drug trafficking trade. In my view, this changes the complexion of the case and renders the criminal conduct of the accused significantly more serious. Indeed, whether the accused's drug offence, namely, the unlawful possession of a controlled substance (cocaine) for the purpose of trafficking, is treated as an aggravating circumstance of the firearms offence, or requires the imposition of a separate consecutive sentence, in my view, this offence must increase the effective custodial sentence on the accused by at least a year. The combination of illegal loaded firearms and the sale of illicit drugs is a very dangerous and toxic mix that requires the imposition of serious penitentiary terms of imprisonment. See: R. v. Grant, 2006 18347 (ON CA);Varied: 2009 SCC 32; R. v. Brown, [2007] O.J. No. 5338 (S.C.J.) at para. 34-38; R. v. Dass, [2008] O.J. No. 1161 (S.C.J.) at para. 19-33; R v. Manning, [2007] O.J. No. 1205 (S.C.J.) at para. 16; R. v. Williams, [2007] O.J. No. 1354 (S.C.J.) at para. 34; R. v. Duhamel, 2013 ONSC 1340, at para. 39.

[35] All of these cases make it abundantly clear that deterrence, denunciation and protection of the public are the key considerations for firearms offences. Cases involving firearms and drugs have resulted in sentences in excess of the three year minimum sentence for the firearms offence. The combination of loaded handguns and drugs has been referred to as “toxic”: see R. v. Dass, [2008] O.J. No. 1161, 77 W.C.B. (2d) 158 at paras. 33, 98.

[36] Parliament has also expressed concern about firearms offences. The prior one-year minimum sentence for a firearms offence has been replaced by a three-year minimum sentence for a first offence and a five-year minimum sentence for any subsequent convictions pursuant to the provisions of the Tackling Violent Crime Act, S.C. 2008, c.6, s.8.

[37] Apparently, Mr. Marshall has very little regard for society’s rules and regulations. After being granted bail on October 24, 2011, he saw fit to disregard most of the terms of his recognizance and travelled to Sudbury on January 17, 2012 where it was his intention to sell $5,000 to $6,000 worth of cocaine. Among the various aggravating factors, I consider that this one is the most egregious.

[38] When I take into account Mr. Marshall’s age, the lack of criminal record, the aggravating and mitigating circumstances of these offences as well as the weight of authority for sentences imposed in similar circumstances for similar offences, I have determined that the appropriate sentence is three and one-half years for the weapons offence and one year for the drug charge for a total of four and one-half years before deducting credit for time served.

[39] As previously mentioned, Mr. Marshall was arrested on January 17, 2012 and his previous recognizance of bail was revoked pursuant to s. 524(4) of the Criminal Code. As a result of this, Mr. Marshall is ineligible for enhanced credit pursuant to s. 719(3.1) of the Criminal Code for the period from January 18, 2012 until his subsequent release on January 11, 2013, a total of 360 days. Crown counsel acknowledges that Mr. Marshall should receive credit at a rate of 1.5 to 1 for the period of time from October 7, 2011 until October 25, 2011 (19 days) and June 12, 2013 until October 4, 2013 (115 days) which would result in enhanced credit of 201 days. This amount, added to the 360 days at 1.1 credit, results in total pre-trial credit of 561 days.

Disposition

[40] Mr. Marshall, please stand up.

[41] I sentence you to three and one-half years for the possession of a loaded prohibited firearm and one year for possession of cocaine for the purpose of trafficking, such sentences to be served consecutively.

[42] On each of the two counts dealing with the breach of recognizance, I sentence you to 60 days, to be served concurrently.

[43] This results in a total sentence of four and one-half years. From this, I deduct 18 months as credit for time served with the result that a fit and proper remaining sentence is 36 months.

[44] In addition, I make a DNA order, a ten year prohibition under s. 109 of the Criminal Code of Canada and a forfeiture order for the drugs, digital scale, cash in an amount of $676.60, the six cell phones and the handgun and ammunition.

Mr. Justice R. Dan Cornell

Released: October 4, 2013

COURT FILE NO.: 330/12 & 346/12

DATE: 2013-10-04

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Jahvar Marshall

ORAL DECISION ON SENTENCE

Cornell J.

Released: October 4, 2013