ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-7-646

DATE: 20140716

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DEVON BROWNE

Gabriel Ho, for the Crown
Pharrah Bacchus, for the accused

HEARD: April 22 and June 3, 2014

K.L. Campbell J.:

Reasons for Sentence

A. Overview

[1] At the conclusion of the pre-trial motions in this matter, the accused, Devon Browne, pled guilty to two charges, namely: (1) the unlawful possession of a loaded prohibited firearm, a .40 calibre handgun, together with readily accessible ammunition capable of being discharged in the firearm, while he was not the holder of an authorization or licence and a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, chap. C-46; and (2) the unlawful possession of the same firearm while he was prohibited from such possession by reason of an order made pursuant to s. 109 of the Criminal Code, contrary to s. 117.01 of the Criminal Code. Both of these offences were committed by the accused in Toronto on or about December 31, 2012.

[2] On December 31, 2012, members of the Toronto Police Service (TPS) executed a search warrant in an apartment where the accused lived with his grandmother. Behind an armoire in the main bedroom, occupied by the accused’s grandmother, the police found a loaded .40 calibre, semi-automatic Smith & Wesson firearm. The firearm contained a magazine with seven rounds of .40 calibre ammunition. The firearm was wrapped in a hat, and was inside a plastic shopping bag. By his plea of guilty, the accused admitted that this firearm belonged to him, not his grandmother, and that he was in possession of this firearm at the time of the search. Indeed, at the time, his grandmother was away on an extended vacation in Guyana, and the accused was living in the residence alone. Needless to say, the accused did not have the necessary authorization or license and registration certificate to allow him to lawfully possess this firearm. Indeed, at the time, the accused was strictly prohibited from the possession of any such weapon by virtue of an earlier court order.

[3] To date, the accused has served almost exactly 17½ months in pre-sentence custody. But for some 35 days in the spring of 2013, when he was on a judicial interim release order, the accused has been in jail since his arrest on December 31, 2012. There is no real issue between the parties that the accused should be given enhanced credit for this period of pre-sentence detention, as permitted by s. 719(3.1) of the Criminal Code. I agree. This result is effectively dictated by the application of the Supreme Court of Canada decision in R. v Summers, 2014 SCC 26, at paras. 7, 34, 68-80, affirming: 2013 ONCA 147, 114 O.R. (3d) 641, in order to fairly compensate the accused for his lost eligibility for early release and the relative harshness of the conditions of his pre-sentence detention. Giving the accused the maximum enhanced credit legally available means that the accused receives a total credit for having already served the equivalent of 26¼ months in custody. I accord him this credit.

[4] The Crown argues that the accused should be given a global sentence of 4 years imprisonment, less the appropriate credit for his pre-sentence custody. Accordingly, the Crown contends, effectively, that the accused should now receive an additional sentence of close to the maximum reformatory term of imprisonment (nearly 22 months to be precise). The Crown suggests that the individual sentences for the two offences committed by the accused should, as a matter of principle, be served consecutively, but should total close to a maximum reformatory term of imprisonment.

[5] Defence counsel agrees that some additional term of imprisonment is required in the circumstances of this case. She argues, however, that the accused should only receive an effective global sentence of 2½ years imprisonment for these two offences. Defence counsel suggests that once the accused is given the appropriate credit for his time in pre-sentence detention, he should be given an additional sentence of approximately four months. Conceding the legal propriety of consecutive sentences, defence counsel contends that the accused has already served a sufficient period of time in jail in relation to the firearms offence, and should now receive a sentence of only approximately another four months imprisonment in relation to the breach offence.

(Decision continues with remaining sections exactly as in the original text.)