ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-10000547-0000

DATE: 20140411

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEMAR CARROL

Defendant

Glenn Brotherson, for the Crown

D. Sid Freeman, for the Defendant

HEARD: March 11, 2014

MOLLOY J.

REASONS FOR SENTENCE

Overview

[1] For written reasons dated February 5, 2014,[^1] I convicted Kemar Carrol of:

(1) possession of a loaded restricted Ruger .22 calibre semi-automatic firearm (Count 1);

(2) breach of a weapons prohibition order under s. 51(1) of the Youth Criminal Justice Act dated September 17, 2004 (Count 4);

(3) breach of a s. 109 weapons prohibition order dated May 12, 2009 (Count 5);

(4) breach of a s. 109 Order dated June 17, 2009 (Count 6);

(5) breach of a term of a probation order dated May 12, 2009 not to be in possession of a weapon (Count 8); and

(6) breach of a term of a probation order dated June 17, 2009 to be of good behavior (Count 9).

[2] I stayed Counts 2 and 3 as duplicative, pursuant to R. v. Kienapple.

[3] It is now my task to sentence Mr. Carrol for these offences. The underlying facts for each offence are the same – Mr. Carrol was found in possession of a loaded .22 calibre handgun in Toronto on May 13, 2010. That is the subject matter of Count 1. The other convictions relate to the fact that the possession of the gun by Mr. Carrol put him in breach of three separate weapons prohibition orders and the terms of two separate probation orders.

[4] Defence counsel submits that the appropriate global sentence for all these offences is between three and three and one-half years. Mr. Carrol has been in custody since his arrest on May 13, 2010, a total of 1430 days. His counsel urges me to apply a 1:5 to 1 ratio in determining the credit to which Mr. Carrol is entitled for time served, which would be a total credit of 2145 days.

[5] The Crown seeks a global sentence in the range of six and one-half to seven years, of which 18 months would be allocated to the breaches of the various prohibition and probation orders. He agrees that Mr. Carrol would be entitled to some enhanced credit for the time served, but not for the entire period.

[6] For the reasons that follow, I am imposing a sentence of four and one-half years for the firearm possession offence, with an additional 18 months consecutive for the breaches of the prohibition and probation orders. That brings the global sentence to six years. In all of the circumstances involved, it is appropriate that Mr. Carrol be given a 1:5 to 1 credit for all time served to date.

Circumstances of the Offence

[7] On May 13, 2010, police officers entered a garage located behind a residential home in a townhouse complex in Toronto’s east end. The garage was routinely used by a group of people as a “hangout” to watch television, play video games, smoke marijuana, drink alcohol, and just generally socialize. When the police entered, Mr. Carrol was sitting on a couch in the garage. The loaded gun was found under the seat cushion upon which he had been sitting. There was only one other occupant in the garage at the time – Mr. Carrol’s friend, Nicholas Denny.

[8] In close proximity to the couch, there was a backpack in which was found three boxes of .22 calibre ammunition, suitable for use in the handgun under Mr. Carrol’s seat. I found Mr. Denny not guilty of possession of the handgun, because there was no evidence that he was in a position to exercise any control over it. The backpack with the ammunition would appear to have belonged to Mr. Denny and to have been brought to the garage by him. The backpack was open when the police entered and the ammunition was visible from where Mr. Carrol was sitting. I am satisfied beyond a reasonable doubt that the gun and the ammunition are linked and I consider it an aggravating factor that the gun was located in close proximity to an additional quantity of ammunition.

[9] Neither Mr. Denny nor Mr. Carrol had any ownership or possessory interest in the garage or the townhouse associated with it. They had simply been hanging out there with acquaintances who had left earlier. Although the garage was not a “public place” in the same sense that a shopping mall, or public street, or community center would be, neither was it a strictly private location. Rather, it was a place regularly used by a number of individuals as a social meeting place. Possession of a loaded handgun in that setting puts the lives of others at risk and is inherently dangerous. That is also an aggravating factor.

Circumstances of the Offender

[10] Mr. Carrol was 23 years old at the time of this offence, and is now nearly 28. He was born in Jamaica, but has lived in Canada with his family since he was four years old. His mother and three siblings reside here. He has never known his biological father.

[11] Mr. Carrol has two children, each from a different mother. His son is now nine years old; his daughter is six. Both children were born and live in Canada. Mr. Carrol has been actively involved in both their lives.

[12] Mr. Carrol has a Grade 12 education. He was a talented basketball player as a youth, with 11 offers from United States colleges. However, he was in custody for unrelated criminal charges for too long to take advantage of these opportunities. It would appear that he is also talented musically, with an offer of an R & B recording contract, also not pursued because of his personal circumstances. He has had sporadic employment in landscaping and construction, and worked as a summer student with Parks and Recreation as a basketball coach.

[13] Mr. Carrol has a history of repeated conflicts with the law, starting in 2000 at the age of 14 with a conviction in Youth Court for failing to comply with a recognizance, for which he was sentenced to probation for one year. Other Youth Court convictions are as follows:

• April 2001: failing to comply with a recognizance; theft under $5000; and possession of a prohibited weapon (a knife) – sentence time served (29 days) and 30 days probation

• November, 2001: theft under $5000 and two counts of possession of stolen property under $5000 – sentence time served of 31 days, plus 30 days secure custody and 30 days open custody, plus 18 months probation

• September, 2004: possession of property obtained by crime over $5000; two counts of robbery; theft under $5000; corruptly taking reward for recovery of goods; fail to attend court: – sentence 4 months time served, plus 6 months custody, plus 3 months under supervision in the community, plus 15 months probation

• December 2004: fail to comply recognizance – sentence 12 months probation

• March 2005: extortion – sentence 8 months custody, plus 4 months supervision in the community, plus 18 months probation

• April 2005: robbery with violence and disguise with intent – sentence 4 months custody and 22 months supervision in the community

[14] Mr. Carrol also has two entries on his criminal record as an adult as follows:

• October 2008: carrying concealed weapon (knife) and breach prohibition order –suspended sentence and 12 months probation

• June 2009: possession of a Schedule 1 substance for the purpose of trafficking; careless storage of ammunition (in the trunk of a car); breach prohibition order; and breach recognizance – sentence 3 months on top 1 month pre-trial custody, plus 2 years probation.

[15] Mr. Carrol has lived in Canada for 24 years, almost his whole life. However, he is not a Canadian citizen. Because of his criminality, the Immigration and Refugee Board of Canada issued an order, dated January 31, 2011, directing his removal from this country and his return to Jamaica. Mr. Carrol has waived his right to appeal that removal order and will be sent back to Jamaica as soon as he is released from prison, provided there are no other Canadian criminal charges still outstanding against him at that time. I am advised that all of Mr. Carrol’s immediate family is here in Canada and that he has no ties to Jamaica. I accept that removing Mr. Carrol from his family, including his mother, his siblings, and his own children, represents a serious hardship for him.

Denunciation, Deterrence and Rehabilitation

[16] It is well-recognized that for offenders convicted of possession of a loaded firearm, particularly in a public place, the primary focus of sentencing will be on denunciation and deterrence.[^2] That does not mean that rehabilitation can be ignored, nor does it mean that proportionality in sentencing is no longer an applicable principle.[^3] Sentencing is a highly individualized process and particular circumstances relating to blameworthiness, prospects for rehabilitation and the like must always be taken into account. However, where loaded firearms are involved, the degree of danger to our community mandates an emphasis on deterrence and denunciation.

Aggravating and Mitigating Circumstances

[17] Mr. Carrol’s criminal record is a significantly aggravating factor. He has multiple convictions for breaching court orders. His record also includes crimes of violence, drug trafficking, and weapons offences. That said, this is the first time he has been convicted of possession of a firearm. His prior weapons offences involved knives. He was, however, convicted of having carelessly stored ammunition in the trunk of a car. At the time of this offence in May 2010, Mr. Carrol was subject to two subject probation orders, also an aggravating factor.

[18] As I have already noted, the circumstances in which he possessed the gun in this case are also aggravating, because of the extreme danger to others.

[19] The mitigating factors are minimal. At the time of sentencing, Mr. Carrol did say he recognized his criminal action would hurt others and that he takes responsibility for that. I believe he regrets his criminal past, but that is primarily because he is now going to be deported to a country with which he has little connection and where he will be substantially deprived of regular contact with his family.

[20] I do not see the imminent deportation as a factor that should change the sentence I would otherwise impose in this case. There is no fit sentence I could impose that would have any impact on the immigration situation. However, I do recognize that the deportation represents a further punishment to Mr. Carrol for his conduct that would not be visited upon a Canadian citizen who committed precisely the same crime in the same circumstances. In that sense, it can be seen as a distinguishing factor in the application of the parity principle and in comparing Mr. Carrol to other offenders in that process.

Parity in Sentencing

[21] To the extent possible, similar offenders should receive similar sentences for similar offences. It is therefore important to look at judicial precedent and fit Mr. Carrol’s case within a range of sentences given in similar circumstances.

[22] In R. v. Nur, 2013 ONCA 677, the Court of Appeal noted that the criminal offence of possession of a loaded firearm without a license has a broad scope, ranging from “an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade” to an otherwise law-abiding gun owner who has failed to obtain the proper license to possess the firearm. The difference in the circumstances at the two extreme ends of this spectrum is the degree to which there is a real and immediate danger to the public. It is crystal clear that Mr. Carrol belongs at the “outlaw” end of that spectrum and that his possession of this firearm in these circumstances did pose “a real and immediate danger to the public.”[^4]

[23] In R. v. Smickle, 2014 ONCA 49 (a companion case to Nur), the Court of Appeal considered the situation of a 27-year-old man with no criminal record and substantial mitigating factors, who was found in possession of a loaded firearm while alone in his cousin’s apartment. The Court held in that case that the appropriate sentence was two years less a day and noted that “most s. 95 offences will attract a penitentiary term even for first offenders.”

[24] The Nur case involved a first-time offender, who was only 19 years old at the time of the offence, and who pleaded guilty to the charge. The trial judge, Code J., held that prior to the enactment of the mandatory minimum for s. 95 offences, the general sentencing range was between two years less a day and three years, with the bottom end of the range “generally reserved for youthful first offenders with good rehabilitative prospects who plead guilty” and the higher end of the range “for offenders with prior records who proceed to trial.” As such, Mr. Nur was potentially at the bottom end of the range. However, there were some aggravating factors that the trial judge found moved the appropriate sentence somewhat higher. Mr. Nur was in possession of the loaded handgun outside a community center and in circumstances that were sufficiently threatening that staff of the center locked down the premises and called police. Mr. Nur then fled from the police, discarding the gun in a public parking area, thereby exacerbating the danger inherent in the situation. Code J. found that without the mandatory minimum of three years, the appropriate sentence for Mr. Nur was two and one-half years imprisonment.[^6] However, given the three-year minimum, which Code J. had found to be constitutional, he imposed a sentence of 40 months, which amounted to time served.[^7] On appeal, the Court of Appeal found the minimum sentence provision to be unconstitutional, but held that even without that minimum, Mr. Nur “could well have received a sentence of three years,” noted that the effective sentence imposed was time served, and therefore did not interfere with the trial judge’s disposition.[^8]

[25] Mr. Carrol is in a less favourable position than was the case in either Smickle or Nur. His possession of the gun in a social hangout is more aggravating than Mr. Smickle having it by himself in a private apartment. Also, Mr. Smickle had no criminal record. Mr. Carrol’s significant criminal record also distinguishes him from Mr. Nur who was a youthful first-time offender. Likewise, Mr. Nur pleaded guilty, which is an indication of remorse not present for Mr. Carrol. Although the circumstances surrounding Mr. Nur’s possession of the gun are worse than Mr. Smickle, who merely had it under the seat of the couch he was sitting on, it is clear that Mr. Carrol’s possession is one on the “outlaw” end of the spectrum. I have no evidence as to precisely why Mr. Carrol had that particular gun on that particular day, but I do know that it was for some unlawful purpose. Therefore, based on these two cases, Mr. Carrol would be deserving of a sentence higher than three years for possession of the loaded handgun.

[26] In R. v. Scarlett, 2013 ONSC 562, the offender was 22 years old with no criminal record. He fled from police in the hallway of an apartment while clutching a loaded handgun to his waist inside his pants. He was apprehended in the bedroom, where police also found crack cocaine. Strathy J. (as he then was) held that in the absence of the three-year minimum sentence, the appropriate sentence for Mr. Scarlett was three years. Mr. Carrol’s criminal record would make his situation more serious.

[27] In R. v. Ellis, K.L. Campbell J. sentenced a 32-year old repeat offender to six years for possession of a loaded firearm in a motor vehicle. The offender in that case was older than Mr. Carrol, but his criminal record was far less extensive. On the other hand, Mr. Ellis had a prior conviction for possession of a loaded firearm along with drug possession, whereas Mr. Carrol’s prior weapons offences were for knives rather than guns. I do recognize that the fact Mr. Carrol has a record for weapons offences is seriously aggravating, notwithstanding that the weapons were knives. My point, however, is that if Mr. Carrol had previously been convicted of possession of a firearm, that would be even more aggravating.

[28] Finally, I have considered my own earlier decision in Ferrigon. Mr. Ferrigon fled from the police through a housing complex and discarded the handgun he was carrying in the backyard of a residence, where anyone, including an innocent child, might have come across it. He was 25 years old at the time. He had two prior convictions for possession of a loaded handgun and was still on probation at the time of the offence before me. I sentenced him to five years in respect of the weapons possession charges. By way of comparison: Mr. Carrol is a similar age; he has a more extensive criminal record, although not for possession of a firearm; and, he also was on probation at the time of the offence. The main distinguishing factor is that the circumstances of Mr. Ferrigon’s possession, particularly throwing the gun away in a public place, are more aggravating.

Appropriate Sentence

[29] Taking all of these factors into account, I find that the appropriate sentence for Mr. Carrol for the possession of the loaded firearm is four and one-half years. In my view, this is necessary in order to reflect the goals of deterrence and denunciation and the seriously aggravating factor of the criminal record. The sentence would have been even higher were it not for the mitigating fact that much of Mr. Carrol’s record was as a youth. I am also mindful that he is also being punished for his criminal conduct outside the criminal justice system through his deportation from Canada.

[30] With respect to the breach of the three prohibition orders, I am imposing a sentence of 18 months, for each of the breaches, concurrent to each other, but consecutive to the 4 ½ year sentence for possession of the firearm. Prohibition orders are made for a reason. They are meant to bring home to the offender that further offences of this type will attract an additional penalty on top of the sentence for the offence itself. For this reason, as I previously held in Ferrigon, I consider that sentences for these breaches should be consecutive to the sentence for the principal firearms offence. Breaching one prohibition order will typically warrant a one-year sentence. For multiple breaches, I consider 18 months to be a fit sentence. Although there was at one point some divergence between judges as to whether s. 109 breaches should merely be considered to be an aggravating factor on sentencing for the main offence, in more recent years there has been more of a consensus favouring the imposition of a consecutive sentence. Campbell J. expressed the principle as follows in Ellis (at para. 30):

As I have mentioned, at the time of his most recent firearms offences, the accused was subject to a court order, made at the time of his last firearms offences, which strictly prohibited him from the possession of such a weapon. The weight of authority strongly suggests that, as a general rule, in such circumstances a consecutive sentence ought to be imposed for the breach of the weapons prohibition order. See: R. v. Manning, [2007] O.J. No. 1205 (S.C.J.) at paras. 42-43; R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.) at paras. 60-65; R. v. W.C.A., [2010] O.J. No. 2677 at paras. 49-51; R. v. Brown, 2010 ONCA 745 at para. 15; R. v. Sadat and Mensah, 2011 ONSC 3303 at paras. 41-48; R. v. Alexander, 2012 ONSC 6117 at paras. 39-43, 48-50. I agree with this principled perspective. In the absence of a consecutive sentence, the accused effectively receives no greater punishment as a result of his clear violation of a previous court order. The intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.

[31] I have taken the breaches of the probation orders into account as an aggravating factor in calculating the 4 ½ year sentence for the firearm possession. I will therefore impose a sentence of six months for each of the probation breaches, but those will be concurrent to the sentence for Count 1.

[32] Thus, Mr. Carrol is sentenced to a total of six years for all of the offences. This represents a substantial jump from any sentence imposed on Mr. Carrol in the past. Nevertheless, I consider it to be a fit sentence. Mr. Carrol had the benefit in the past of many probation orders and sentences served under supervision in the community. Notwithstanding this, he continued to re-offend, and in a continually more serious manner. I consider the sentence of four and one-half years to be justifiable in light of Mr. Carrol’s criminal antecedents and the serious threat to the public safety posed by his most recent crime.

Credit for Time Served

[33] Ms Freeman submits that Mr. Carrol should be given a credit of 1.5:1 for the time he has served to date. I agree that this is appropriate and in accordance with s. 719(3.1) of the Criminal Code, which gives a trial judge the discretion to increase the credit to this level “if the circumstances justify it.”

[34] The Ontario Court of Appeal held in R. v. Summers, 2013 ONCA 147 that it is not necessary for there to be exceptional circumstances in order to support an enhanced credit for time served. Further, the fact that an offender will not receive any credit for his time served in terms of earned remission or parole eligibility can be a relevant factor to take into account in determining whether to provide an enhanced credit.

[35] In this case, Mr. Carrol has been in custody for an unusually long time prior to trial. The reasons for the delay cannot properly be described as the “fault” of either the Crown or defence. There were two accused persons in this case and the schedules of all counsel had to be accommodated. In addition to the case before me, Mr. Carrol was facing two other sets of charges. The trial on one of those sets of charges also had to be scheduled and it proceeded before this one. Mr. Carrol was acquitted of the charges in that case. The second set of charges was withdrawn by the Crown. When this case was then ready to proceed, defence counsel fell ill and the trial had to be rescheduled. There are, of course, legitimate reasons why Mr. Carrol has been detained in custody during this time. The fact remains, however, that for that whole period of time, he has earned nothing towards his statutory release date, which would normally occur after he has served two-thirds of his sentence.

[36] A simple calculation will serve to demonstrate the impact of this lost credit.

• Mr. Carrol has served just short of 48 months.[^11] I have sentenced him to 72 months. On a 1:1 credit, he will have 24 months yet to serve, and would be eligible for statutory release for the last 8 months of that. He would have served 64 months in custody.

• A person who committed the same offence and been given the same sentence, but who was on bail pending trial and sentencing, would be eligible for statutory release after serving only 48 months.

• If instead of a 1:1 credit, Mr. Carrol’s time is credited at 1.5:1, his total credit for time served would be 72 months. He would be eligible for release at that point, in other words, after serving 48 months – the same total time served as a person who had been on bail.

[37] I recognize that a similar calculation can be made for every offender held in custody, and I also recognize that the reasons Mr. Carrol was denied bail stemmed largely from his own past misconduct. However, the fact that this extended for such a long period of time aggravates the inequity of the situation.

[38] In addition, on October 4, 2011, while Mr. Carrol was being held in custody in an institution in London, he was attacked by a number of other inmates. As a result of this assault, he received multiple stab wounds to his back, chest, abdomen and upper arm. He was admitted to hospital and required sutures and staples for a number of these wounds. He was also left with significant and likely permanent scarring.

[39] In my opinion, the injuries to Mr. Carrol while he was in custody, along with the length of the custody during which he earned no credits towards his release date, are circumstances which justify an enhanced credit of 1.5:1 for the entire period of his pre-trial custody. This enhanced credit is necessary in order to achieve fairness in the sentencing process and in particular to adequately reflect the principles of proportionality and parity in sentencing.

Conclusion

[40] Accordingly, I impose the following sentences:

(a) Count 1 (possession of loaded restricted firearm) – 4 ½ years (54 months)

(b) Count 4 (breach weapons prohibition order Sept. 17, 2004) – 18 months consecutive to Count 1 sentence)

(c) Count 5 (breach s. 109 Order May 12, 2009) – 18 months concurrent to other sentences

(d) Count 6 (breach of s. 109 Order June 17, 2009) – 18 months concurrent to other sentences

(e) Count 8 (breach probation Order May 12, 2009) – 6 months concurrent

(f) Count 9 (breach probation order June 17, 2009) – 6 months concurrent

[41] As of the date of sentencing, Mr. Carrol has served 1430 days. At a ratio of 1:5 to 1, that time is credited as 2145 days, which is deducted from the six year sentence. A six year sentence starting today would be 2192 days. Accordingly, the time remaining to be served in Mr. Carrol’s sentence is 47 days.

[42] In addition, there will be a DNA Order and a further s. 109 Order for life.

MOLLOY J.

Released: April 11, 2014

Footnotes

[^1]: R. v. Carrol and Denny (No.2), 2014 ONSC 616
[^2]: R. v. Danvers, 2005 30044 (ON CA)
[^3]: R. v. Batisse, 2009 ONCA 114; R. v. Priest (1996), 1996 1381 (ON CA)
[^4]: R. v. Nur, 2013 ONCA 677
[^6]: R. v. Nur, 2011 ONSC 4874
[^7]: Ibid.
[^8]: R. v. Nur, supra
[^11]: The actual time served is somewhat less than 48 months, more like 47 months, but I have used 48 months for ease of calculation.