COURT FILE AND PARTIES
COURT FILE NO: CR-1350000518-0000
DATE: 20131010
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ron Krueger for the Crown
- and -
OMAR GRIZZLE
David Bayliss for Omar Grizzle
HEARD: October 2, 2013
Thorburn J.
REASONS FOR SENTENCE
I. THE CONVICTIONS
[1] Omar Grizzle was convicted by a jury of possession of a loaded prohibited firearm, ammunition and a magazine capable of holding more than ten rounds of ammunition without being a holder of an authorization or licence to possess it (section 95 of the Criminal Code).
[2] At the commencement of trial, it was agreed that the following additional charges would be dealt with by judge alone. Although Grizzle pleads not guilty to these charges, I find him guilty of these charges in accordance with the verdict rendered by the jury. Those charges are:
(i) possession of a firearm without being the holder of a licence or registration certificate (section 91(1) of the Criminal Code);
(ii) possession of a firearm knowing he was not the holder of a license or registration certificate (section 92(1) of the Criminal Code);
(iii) possession of a magazine capable of holding more than ten rounds of ammunition (section 91(2) of the Criminal Code); and
(iv) possession of a firearm while prohibited from doing so by virtue of a Youth Court order (section 51(1) of the Youth Criminal Justice Act).
[3] I do so in view of section 742(2) of the Criminal Code that provides as follows:
Where the court is composed of a judge and jury, the court,
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by the evidence at trial to be proven, or hear evidence presented by either party with respect to that fact.
II. THE FACTS SURROUNDING THESE OFFENCES
[4] On May 4, 2010, police executed a search warrant. When police entered the premises, Grizzle was asleep on the living room couch. His cousin and his cousin’s female friend and their two small children were also in the apartment. One child was two months old and the other was approximately eighteen months old.
[5] Police were searching for firearms, cell phones and other items. Police broke open the front door and used a distraction device that made noise and flashed light. Police entered and secured all adults found in the premises.
[6] Sergeant Young searched the children’s bedroom. The photograph taken by Detective Stinson before the search shows that there was a suitcase on the ground with things on top of it in the corner of the children’s bedroom. Sergeant Young testified that he opened the suitcase and saw a wallet that contained numerous documents and pieces of identification belonging to Mr. Grizzle along with neatly folded men’s clothing and condoms. All of the documents were issued before 2010 except one receipt of money dated February 2010. Some of the documentation was still valid.
[7] Sergeant Young noticed a bullet at the bottom of the suitcase and shouted to Detective Stinson to photograph the suitcase and bullet at the bottom of the case. Detective Stinson did so. In the photograph taken by Detective Stinson, one can see a firearm behind mesh on the upper part of the suitcase.
[8] Moments later, Sergeant Young noticed the firearm and pulled it out. The gun was loaded and a magazine was inserted into the butt of the gun capable of holding more than ten bullets.
[9] The firearm was a prohibited firearm. The serial number on the handgun had been removed. The magazine was capable of holding thirteen bullets.
[10] According to Michael Press, an expert in firearms, the firearm was operational and would discharge if the trigger were pulled. It has a street value of approximately $2500. No fingerprints were found on the firearm.
[11] Omar Grizzle did not have an authorization, licence or registration certificate to possess a firearm. There is no registration certificate for a Sig Sauer, semi-automatic handgun, model P228, calibre 9mm with the serial number B130988.
[12] A jury found that Grizzle was in possession of the loaded firearm, magazine and bullet.
III. GRIZZLE’S PAST
[13] Grizzle is now twenty four years old.
[14] His criminal record spans seven years and includes numerous convictions as follows:
(i) 2005-01-05: Fail to comply with recognizance;
(ii) 2005-06-03: Assault;
Theft under $5000;
(iii) 2005-09-06: Possession of a prohibited or restricted weapon knowing it is unauthorized;
Failure to comply with recognizance;
(iv) 2006-01-10: Failure to comply with recognizance (x 2);
(v) 2007-01-04: Assault;
(vi) 2007-03-22: Attempt murder (firearm);
Possession of a firearm knowing it was unauthorized;
Failure to comply with a disposition; and
(vii) 2012-09-12: Robbery and use of an imitation firearm.
[15] Grizzle completed high school in 2008 at a learning centre.
[16] He has a long-time girlfriend and one child. His girlfriend continues to support him and he enjoys the support of his mother, father and sister.
[17] He has had some sporadic employment.
IV. THE PRINCIPLES OF SENTENCING
[18] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered:
- denunciation of unlawful conduct;
- deterring the offender and others from committing offences;
- separation of offenders from society where necessary;
- rehabilitation of offenders;
- reparation for harm done to victims or to the community; and
- promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[19] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[20] A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender. Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.
[21] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered.[^1] Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^2]
[22] Where there is a sentence for multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive.[^3]
[23] Sentencing ranges are useful in ensuring that the parity principle is met because they provide guidelines for trial judges.[^4]
V. GRIZZLE’S POSITION
[24] Grizzle’s counsel submits that a global sentence of five and one-half to six years is appropriate. He suggests the appropriate sentence for possession of the loaded prohibited firearm and magazine is five and one-half years[^5], and the appropriate sentence for breach of the court orders is one year. He claims the sentence for possession of the loaded prohibited firearm would be lower than five years but for the mandatory minimum sentence that he suggests is unconstitutional.
[25] Grizzle was arrested on these charges on May 4, 2010 and has been in pre-sentence custody since that date. He was sentenced to additional time for other unrelated offences and it is agreed that 553 days spent in pre-sentence custody may be attributed to this case.
[26] All of the 553 days were spent at the Toronto Jail. He spent 135 days triple bunked. Sergeant Leonard testified that although the Toronto Jail chooses not to keep statistics to record the number of days wherein lockdowns occur, lockdowns take place with some degree of regularity. During lockdowns many of the privileges ordinarily accorded to those at the facility are not permitted. This may include visits with counsel, telephone calls, and access to fresh air.
[27] Grizzle’s counsel seeks credit of 1.5:1 day spent in custody for the entire 553 day period in view of these factors.
VI. THE CROWN POSITION
[28] Given that denunciation, deterrence and separation from society are primary concerns in cases involving firearms, and this offender’s escalating pattern of reoffending, the Crown suggests that Grizzle should be sentenced to eight years for possession of the loaded firearm, a consecutive sentence of one year for possession of the magazine, and an additional year for breach of the court order.
[29] The Crown initially suggested Grizzle should be given no enhanced credit for time spent in pre-sentence custody. During his oral submissions he indicated that he was content to an award of 1.5:1 credit for the 135 days spent triple bunked.
VII. SENTENCING DECISION
[30] I have considered the principles of sentencing set out in the Criminal Code and have applied those considerations to the facts in this case. I have also considered the aggravating and mitigating circumstances, Grizzle’s prospects for rehabilitation, the duration and conditions of Grizzle’s pre-sentence custody, and the case law that addresses the appropriate range of sentences for offences of this nature committed in similar circumstances by similar offenders.
[31] General denunciation and deterrence are of primary importance when dealing with an accused with a lengthy criminal record involving crimes of violence, particularly those involving firearms. Protection of the public must be safeguarded.[^6] Grizzle’s significant criminal record includes prior offences involving both guns and violence and there is a pattern of escalating violence.
[32] The aggravating factors in this case are as follows:
(a) Grizzle has a lengthy, serious and escalating criminal record including a record for a prior firearms offence;
(b) two sleeping children were in the room where the loaded firearm was stored in the suitcase;
(c) he has little work history; and
(d) he committed one further albeit minor offence since this incident occurred on May 4, 2010.
[33] The mitigating factors are Grizzle’s age and family support.
[34] Grizzle chose to make no statement during the sentencing proceeding nor did his counsel address the issue of remorse. Lack of remorse is not an aggravating factor.[^7] It is simply the absence of a factor which can sometimes mitigate the seriousness of an offence.
[35] There is no indication that Grizzle has taken meaningful steps to reflect on his past, or that he has determined to make any real changes to his lifestyle. Although he is a young man, it would seem at this stage that his prospects for rehabilitation are no more than fair given his history of offending, the types of offences he has committed, the escalation of violence and his seeming unwillingness to change his life. This is unfortunate as he is obviously intelligent and articulate.
[36] Grizzle does not have the benefit of a guilty plea.
I. The firearms and ammunition charges
[37] Because he has a prior record that includes possession of a prohibited firearm and ammunition in connection with the commission of a crime, section 95 of the Criminal Code stipulates that he is subject to a maximum penalty of ten years’ imprisonment and a mandatory minimum penalty of five years’ imprisonment.
[38] Although Grizzle’s counsel suggested that the mandatory minimum sentence in this case is unconstitutional, he brought no Notice of Constitutional question. If I were to permit a Notice of Constitutional question to be brought without notice to the Attorney General, I would first need to decide whether the mandatory minimum five years imprisonment for this offence, is grossly disproportionate on the facts of this case such that it would contravene section 12 of the Canadian Charter of Rights and Freedoms.
[39] The first step in examining whether a mandatory minimum sentence is unconstitutional is to decide whether the sentence to be given would be lower than the mandatory minimum sentence which in this case is five years. In order to do so, I must review the facts of this case and apply them to the range of sentences awarded for similar cases involving similar offenders.
[40] In the case of R. v. Brown[^8], the Ontario Court of Appeal imposed a sentence of seven years’ imprisonment for possession of a loaded restricted firearm followed by an additional year for breach of a firearms prohibition order.[^9] The offender had entered a guilty plea and there was no indication he was involved in any other criminal activity at the time of his arrest. This was the third time he had been found guilty of possession of a firearm and breach of a firearms prohibition. The offender was “moving about in the community with a fully loaded lethal weapon at the ready – and doing so despite court orders prohibiting him from possessing a firearm.”[^10] His criminal record consisted of 34 prior convictions.
[41] In R. v. Johnson[^11] Marrocco J. at paragraph 10, imposed a sentence of seven and one half years for a conviction of possession of a loaded prohibited firearm where the offender had two prior convictions involving a firearm, a significant record both as a youth and as an adult, was in breach of several court orders, the offender did not plead guilty and exhibited no remorse.
[42] In R. v. Newell[^12] Molloy J. at paragraph 21 imposed a sentence of seven and one-half years on an offender found guilty of possession of a loaded prohibited weapon with three prior convictions for gun related offences. In addition he had a lengthy criminal record and there were “virtually no mitigating factors”.[^13]
[43] In R. v Alexander[^14], I imposed a sentence of seven and one-half years on a 26 year old convicted of possession of a loaded firearm who had a lengthy criminal record including a prior record for possession of drug and firearms and few prospects for rehabilitation.
[44] In R v. Ferriga[^15], Molloy J. imposed a sentence of six and one-half years on a 25 year old offender convicted of being in possession of a loaded firearm and other related charges where he had two prior convictions for the same offence.
[45] On the basis of the facts of this case and the cases involving similar offenders in similar circumstances as set out above, even if the mandatory minimum sentence had not existed, I would have concluded that a six and one-half year sentence for possession of a loaded prohibited firearm and ammunition were fit. I note that the test is not whether the sentence is disproportionate or harsh, but whether it is grossly disproportionate such that it would “outrage standards of decency”.[^16] Given my finding that a global sentence of six and one-half year sentence for possession of a loaded prohibited firearm is appropriate, I need not consider the constitutionality of section 95 of the Criminal Code.
[46] The appropriate sentence for possession of the loaded firearm and ammunition is six and one-half years. The sentence to be imposed for possession of the magazine is an additional one year to be served concurrently to the six and one-half year sentence for possession of a loaded firearm and ammunition. I do so because the magazine was on the firearm and these offences arose out of the same underlying facts. The sentence for possession of a firearm knowing he had no licence or registration certificate is a sentence of two years concurrent to the sentence for possession of a loaded prohibited firearm and ammunition. The sentence for possession of a firearm without being the holder of a licence or registration certificate is conditionally stayed as this conviction arises out of the same facts as to sentence for possession of a firearm knowing he had no license or registration certificate.
II. Breach of the Court Orders
[47] In R. v. Manning[^17], Epstein J. (as she then was) imposed a sentence of five years for possession of a loaded prohibited weapon and an additional sentence of one year in prison for breach of five previous prohibition orders. Similarly, in R. v. W.C.A.[^18] in addition to a six and one-half year sentence for a gun related offence, the offender received a sentence of one and one-half years for breach of several prohibition orders.
[48] I believe an appropriate sentence for breach of the court order is a sentence of one year consecutive to the other sentences set out above.
III. Deduction for Time Spent in Presentence Custody
[49] Grizzle has spent 553 days in custody awaiting sentence. For 135 days he was triple bunked and for some of those days the facility he was in was in full or partial lockdown.
[50] One of the effects of the enactment of the Truth in Sentencing Act, S.C. 2009, c. 29, which came into force in February 2010, was to limit credit for pre-sentence time spent in custody to a maximum of one day for each day spent in custody. However, under the heading “Exception” Section 719(3.1) of the Criminal Code provides that enhanced credit up to and including 1.5:1 may be granted “if the circumstances justify it”. Enhanced credit is the exception not the rule although the legislation does not stipulate that the circumstances must be “special” or “extraordinary”.
[51] Grizzle’s time spent triple bunked is beyond the reasonable expectation of a person awaiting trial and sentence. So is the denial of any yard time and the inability to communicate with counsel. As such, these exceptions to the reasonably expected norms justify an exception to the general rule of 1:1 credit for time spent in pre-sentence custody.
[52] Moreover, although Grizzle was convicted of one minor incident that occurred while he was being taken to and from court, his behaviour during the time of his lengthy pre-sentence was, according to Sergeant Leonard, relatively good.
[53] The time spent triple bunked will be accorded credit at a rate of 1.5:1 and Grizzle will be given an additional credit of 14 days to account for the days spent without yard time and in partial or full lockdown.
[54] Grizzle is therefore entitled to credit for the 553 days (or approximately 18.5 months) he spent in presentence custody and an additional 217 days of enhanced credit. This results in total presentence credit of 770 days or 26 months. This shall be deducted from his seven and one-half years sentence.
IV. Ancillary orders
[55] Finally, there will be an order imposed to prohibit Grizzle from possessing weapons for life pursuant to section 109 of the Criminal Code, a DNA order, and a forfeiture order regarding the firearm, ammunition, and magazine seized during the execution of the search warrant.
Thorburn J.
Date: October 10, 2013
Footnotes
[^1]: Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729
[^2]: R. v. Houle, 2008 ONCA 287
[^3]: R. v. M. (C.A.), 1996 230 (SCC); R. v. Gummer, 1983 5286 (ON CA)
[^4]: R. v. Stone, 1999 688 (SCC)
[^5]: R. v. Brown, 2010 ONCA 745
[^6]: R. v. Sturge; R. v. Popovics
[^7]: R. v. Ambrose, 2000 ABCA 264
[^8]: R. v. Brown, 2010 ONCA 745
[^9]: Ibid at para 15
[^10]: Ibid at para 7
[^11]: R. v. Johnson, 2010 ONSC 3213
[^12]: R. v. Newell, [2012] O.J. 4014
[^13]: Ibid at para 13
[^14]: R. v Alexander, 2012 ONSC 6117
[^15]: R. v. Ferriga, [2007] O.J. No. 188
[^16]: R. v. Nur (2011) ONSC 4874
[^17]: R. v. Manning [2007] O.J. No. 1205
[^18]: R. v. W.C.A. [2010] O.J. No. 2677