ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NOS.: CR-14-70000167-0000, CR-14-70000168-0000

DATE: 20140715

B E T W E E N:

HER MAJESTY THE QUEEN

Lindsay Kromm, for the Crown

• and -

MATTHEW COSTAIN

Craig Bottomley, for the Defendant

Defendant

HEARD: May 29, 2014,
at Toronto, Ontario

REASONS FOR SENTENCE

Michael G. Quigley J.

Overview

[1] On March 19, 2014, a jury found Matthew Costain guilty of three counts of possession of firearms, not guilty of two counts of possession of cocaine for the purposes of trafficking, and not guilty on one firearms-related charge upon which I directed that a verdict of acquittal be entered. Mr. Costain pleaded guilty to one count of simple possession of cocaine. In addition, there was a charge of possession of a firearm while prohibited, the first time such a charge has been laid against him. That count was severed from the trial, but it was agreed the findings of the jury on the firearms possession offences would determine the breach of prohibition charge. Consequently, Matthew Costain will be convicted of that offence as well.

[2] As such, this repeat offender now stands before the court for sentencing for two firearms possession offences, after the section 91 offence is conditionally withdrawn under R. v. Kienapple[^1], for one simple possession of cocaine offence, and for a first time breach of a prohibition order against the possession of firearms.

[3] The Crown seeks a substantial and exemplary sentence totalling eight years, before credit for pre-sentence custody. Seven years of that would be for the possession of firearms offence and one year for the breach offence. The seven-year component is two years more than was mandated as the minimum sentence for second firearms possession offences before the mandatory minimum sentences for those offences were declared unconstitutional. She also asks for the one-year breach sentence to be served consecutively to the sentence for the possession of firearms. The Crown seeks that lengthy sentence, even though this will be Mr. Costain’s first trip to the penitentiary.

[4] Defence counsel argued the objectives of sentencing would be fully met by the imposition of a global sentence of five years, consisting of four and a half years for the firearms possession offences and six months, consecutive, for the breach of the prohibition order. He would have the simple cocaine possession offence punished by a concurrent sentence of three months. He asks the court to exercise discretion. He argues it calls for mercy given that Mr. Costain recognizes that he has reached a critical crossroads in his life, a crossroads that requires him to turn his back on the bad choices that he has made to this point in his life, and redirect himself, or face ever-increasing sentences should he continue to re-offend.

[5] There are said to be strong prospects for rehabilitation in this case. The offender himself spoke to me directly, sincerely and thoughtfully, about (i) the position that he finds himself at in his life, (ii) about what he has learned about himself during his lengthy pre-sentence custody, (iii) about some of the strong influences that have come to bear in his life since the commission of these offences, and (iv) of his determination to reform the direction of his future.

[6] Sentencing is always an entirely individualized process. While the case law requires that the factors set out in section 718 of the Criminal Code be taken into account, equally, it requires me to ensure that your sentence here be proportionate to the gravamen of the offence and your responsibility for it. It also requires that your individual circumstances as an offender and your reasonable prospects for rehabilitation be considered and factored into the formulation of an appropriate sentence for you in these circumstances.

[7] It must be accepted that the principal sentencing objectives in a case such as this must be deterrence and denunciation. They must predominate to continue to reinforce our societal repugnance at the proliferation of handguns and other illegal firearms that are present in our communities. They must show that if prohibition orders imposed by the court are not respected, significant penalties will be paid.

[8] Nevertheless, those principles also require tempering when the offender is facing his first trip to the penitentiary, which is in and of itself a significant ratcheting up of the severity of any sentence. Moreover, where there appears to be remorse and prospects of rehabilitation, they require in appropriate circumstances that an offender be shown the Sovereign’s mercy in order to provide some relief from the an otherwise lengthy sentence that could be crushing to the offender personally, defeat his or her professed efforts to turn the corner from crime to lawful conduct, and cause despair to his family who relies upon him.

[9] I have taken all of these factors into account in fashioning the sentence that I will impose today upon Matthew Costain for these offences.

Circumstances of the offences

[10] These charges arose out of a police raid on August 5, 2012, of a residence at 63 Munro Street in downtown Toronto. A number of police cars came into the vicinity with warrants to search several residences. Mr. Costain and a number of his friends were in one of those residences at 63 Munro Street. As the officers broke into the residence using a battering ram, they chased a suspect up the stairs two floors, to the top floor of the townhouse unit. When they arrived there and tackled the suspect they had been chasing just inside the doorway of a bedroom, they also saw that there was another doorway in that bedroom to a balcony area. That was where D.C.s Magee and Ross saw the accused, Matthew Costain. They saw him throw something from his left hand. Both D.C. Ross and D.C. Storey, who was in the alleyway below and observed all of this from an outside perspective, provided compelling evidence that showed why they knew that the item that had been in Mr. Costain’s hand and which he tossed onto an adjacent rooftop was a handgun, a brand which D.C. Ross recognized from personal experience.

[11] Minutes later, the police retrieved a handgun from that adjacent rooftop. It was identified as an ACP 1911 .45 calibre handgun. Although they did not have it fingerprinted, in part because experience shows that fingerprints rarely adhere to the primarily rough and tooled surfaces of a handgun, that decision was also grounded in the fact that both officers had personally witnessed the offender throwing the handgun. It was also informed by the fact that the handgun had landed in a puddle of water on the adjacent rooftop.

[12] It is clear from their verdicts that the jury rejected the evidence of the two witnesses who testified for the defence. One claimed to have jumped off that third-floor balcony and escaped as the police pursued them, and the second claimed an unknown second person had jumped off that balcony and discarded the handgun while escaping. These explanations were not credible. Plainly, the jury was satisfied beyond a reasonable doubt on the evidence that they heard and saw and accepted that Mr. Costain had been in possession of that firearm, but they were not satisfied that the quantity of cocaine in Mr. Costain’s possession was for the purposes of trafficking, and acquitted him on both of those charges. So in addition to pleading guilty to simple possession of cocaine, Mr. Costain was convicted of the firearms possession offences by the jury, and I have now convicted him of the firearms possession prohibition order breach as a consequence of the jury’s findings.

Circumstances of the offender

[13] Mr. Costain is 29 years old. He was 27 at the time of this offence. He is one of five children and has one brother and three sisters. He has had good family support, but he did not finish high school and he has been required to move around, which is making his life somewhat difficult. He dropped out of school due to drug use, in circumstances where there were domestic difficulties at home. The home was not fractured, but his father was an abusive alcoholic and his mother was frequently hospitalized. It appears that his mother was bipolar. It appears he is bipolar as well. His father was physically abusive towards him and his siblings.

[14] Mr. Costain fathered his first child at the very tender age of 14. He is still involved with that child. He has fathered two further children. His three-year-old child was one year old at the time of his arrest on these offences. He has been engaged in a supportive relationship with Miranda Birmingham, the mother of the second and third child, for the last five years. Numerous members of his family attended throughout the trial and on this sentencing hearing, providing physical witness to the letters of support they and others have written on his behalf.

[15] Mr. Costain has recognized and acknowledged that he has a serious drug problem. While in jail, he has participated in the Narcotics Anonymous support treatment to deal with his cocaine addiction. At its height, he consumed more than a gram a day of crack cocaine. Nevertheless, he has also been purposefully and gainfully employed in the past, and has provided financial support to his family. He has worked as a mover with North American Van Lines, and from 2010 to 2011 he operated a forklift truck at the Ontario Food Terminal.

[16] Mr. Costain’s time in custody leading up to this trial has been particularly difficult for him, and arguably profoundly influential of his professed desire to change directions going forward. The brother of one of his parents died while he was awaiting trial. His mother died in February 2013. His father died in April 2013. Mr. Costain’s request to attend those funerals was denied. He has never been able to grieve properly for the loss of those two parents, more for his mother than for his father given the prior history of abuse, but he also blames himself and believes that the stress that he caused to both of them from his criminal antecedents, the life that he has previously chosen to live, was a significant factor in precipitating their deaths.

[17] As mentioned, members of Mr. Costain’s family and friends have written thoughtful and pleading letters of support begging this court to show him mercy and to grant him forgiveness. Counsel for the defence filed a booklet of respondent’s sentencing materials that is full of letters of support for Mr. Costain. That support extends beyond his family to include potential employers, and also Keith Slater, a youth worker at Dixon Hall. Mr. Slater recognizes that Mr. Costain was born and grew up in difficult circumstances in Regent Park. However, he confirmed that upon his release from the period of incarceration which I must impose upon him, they will work closely with the offender to ensure that he continues to receive counselling, and to the extent possible, that he can fulfill his ambition of returning to school. He affirms that the staff at Dixon Hall has an extensive history working with youth at risk and with criminal histories, like Mr. Costain, and he affirms that they will be available to work with Matthew to support him in making the positive changes in his life that Mr. Costain now professes to wish to make.

[18] In addition, Mr Costain has personally now provided evidence of at least some of his claimed commitment to take the other path forward from this crossroads in his life. With the consent of the Crown, defence counsel has now provided me with evidence of Mr. Costain having completed some course work while in custody. The certificates provided show that he has completed (i) 7.5 hours of the Change is a Choice Substance Use Program on June 13, 2014, (ii) the Life Skills Core: Managing Stress program on June 19, 2014 (1 session), and (iii) the Life Skills Core: Use of Leisure program on June 20, 2014 (1 session).

[19] Against those positives in his background and currently, however, there is the negative shadow created by Mr. Costain’s prior criminal record. Mr. Costain started his criminal antecedents with an armed robbery as a 14-year-old in 1999. He was given two years’ probation. Two years later, he was back with a mischief charge, failing to comply with undertakings, assault with intent to resist arrest, and assaulting a peace officer and possession of a controlled substance, all while still a youth.

[20] His first crime as an adult was in 2006 at 21. He was convicted of armed robbery, possession of a loaded prohibited or restricted firearm, unauthorized possession of a firearm and was sentenced to two years less a day, two years’ probation, and a s. 109 mandatory prohibition order on the first offence and the same sentences concurrent for counts 2 and 3. To his credit, he committed no major crime for six years since then, until he was arrested and charged on these offences in August 2012, but he was convicted during that hiatus period of mischief under $5,000 in 2008 and failure to comply with his recognizance in 2010, with suitably minor sentences imposed.

Aggravating and mitigating factors

[21] Counsel for the Crown asserts that Mr. Costain’s antecedents are seriously aggravating. Few factors are claimed to be mitigating in his circumstances. She claims that he shows no remorse for the possession of firearms, and says there is nothing before the court that speaks to rehabilitation. While Crown counsel acknowledges that it cannot be ignored, she cautions me that there are no materials before me that speak to what the potential is for Mr. Costain to achieve any level of rehabilitation and avoid future recidivism.

[22] The Crown says that it is seriously aggravating that the firearm attributed to Mr. Costain was loaded and ready to fire, with a round located in the chamber. The only reason that a firearm can be in that condition is to permit it to be used – to be fired, on a moment’s notice. While the Crown claims that the effort of the accused to discard the firearm created risk when it landed on an adjacent rooftop, I largely dismiss that concern. The firearm was never realistically in a position where it could pose a risk to the public, because the police officers retrieved it within seconds from that largely inaccessible rooftop after they saw Mr. Costain throw it, and because there was no evidence that the safety catch was not engaged.

[23] The Crown claims Mr. Costain’s record is extremely aggravating and that he has no respect for the law. He has one prior conviction for the same offence, in her submission, even though she acknowledges that there is a six-year gap between his first offence under section 95 and this one. Indeed, the passage of time since that earlier offence was underlined by the inability to obtain information and transcripts – the records have all been destroyed.

[24] The Crown acknowledges that he may not be the worst offender, but that neither is he entitled to a low-end sentence. She says that he was engaged in an offence of violence and uses firearms in the commission of offences. It was just good luck that it was not used here. In my view, this overstates the matter to some degree. There is no other offence present in this case except the possession of the firearm. The firearm was not being used when this offence was committed, and Mr. Costain was in a private residence with other friends, like-minded individuals, when he was apprehended.

[25] It is not the strong aggravating factor claimed, relative to the appropriate disposition of sentencing in this particular instance, that he may have used a weapon in an offence that took place some six years ago. Crown counsel also claims that the presence of a small amount of cocaine for personal possession is aggravating, even if it was not possession for the purposes of trafficking.[^2] I do not discount that the possession of cocaine for personal use could and frequently is an aggravating factor in appropriate circumstances, but I do not believe that the circumstances before Nordheimer J. which gave rise to his comments were akin to those here. I am not prepared to extend the association in this particular case, given the simple circumstances that gave rise to the offence, and particularly taking account of the fact that Mr. Costain pleaded guilty to the simple possession offence, but was found not guilty by the jury of both of the trafficking-related offences. Plainly, their verdict reflects that their focus here was on gun possession, not drugs.

[26] While the accused was arrested in public, it was within a private home. The firearm found in Mr. Costain’s possession may have been loaded and ready to fire, but he should not be sentenced as if he was apprehended walking down the streets of Toronto carrying that firearm. Crown counsel contends that must have been his intention, but there is no evidence of the period of time during which he possessed the weapon or of any specific intention relative to its possession. As such, there was no evidence that might lead to an inference that would be more supportive of that speculative conclusion that I was invited to make.

[27] While Mr. Costain only pleaded guilty to one offence, the trial in this case was characterized by numerous concessions made by defence counsel. That permitted the trial to move forward very expeditiously and smoothly in front of the jury, for which I am grateful to both counsel, both very professional in their carriage of this matter.

[28] Most importantly, in support of mitigation, Mr. Bottomley submitted that the offender is at a crossroads in his life. While deterrence and denunciation will always remain paramount considerations in circumstances of crimes of gun possession, that does not allow me to ignore other factors in the offender’s favour. Just because it is gun crime that is before the court does not mean that rehabilitation is to be treated as a lost or irrelevant principle.

[29] So, while Mr. Costain’s past antecedents might otherwise be aggravating, the significant time gap since the last offence, the largely isolated circumstances of possession in which he was apprehended with the firearm within the townhouse residence at 63 Munro Street, reduce the aggravation factor. The strong letters of support provided by members of his family and others show positive potential. Most importantly Mr. Costain’s statement to me acknowledging (i) the crossroads where he finds himself, (ii) expressing remorse for his prior conduct, (iii) expressing grief for the pain and stress he caused them and having been unable to bury his parents because of being in custody, (iv) acknowledging his failure to be a good father to his children and (v) expressing his desire to change that reality, all speak to rehabilitation being a factor of considerable importance on this particular sentencing.

Range of Sentence

[30] I do not intend to review all of the case law put forward by Crown or defence counsel, nor do I intend to distinguish all the features of those cases as they did in lengthy and detailed submissions.

[31] It will suffice for present purposes to indicate that Crown counsel regards Mr. Costain as being on the criminal end of the spectrum, as described by Doherty J.A. in R. v. Nur[^3] at paragraphs 51 and 52, and I plainly acknowledge his call for exemplary sentences in the case of such crimes in order to emphasize the importance of deterrence and denunciation. In such cases, both will always be the paramount considerations. Crown counsel referred to and relies also on various aspects of the decisions in R. v. McCue[^4], R. v. Dass[^5], R. v. Crevier[^6], R. v. J.M.[^7], R. v. Ferrigon[^8], R. v. Adjei[^9], R. v. Charles[^10], R. v. J.G., above, R. v. W.C.A.[^11], R. v. Dene[^12], R. v. Johnston[^13], and finally, my own decision in R. v. I.S.[^14], in support of her position.

[32] All of these cases can be called upon to support the Crown’s contention that the appropriate range of sentence for repeat firearm possession offences is between six to seven and a half or eight years, depending on the gravity of the circumstances and before taking account of the appropriate sentence for breach of the firearms possession prohibition order. Of these, arguably R. v. Adjei, and R. v. Charles are somewhat similar, although the offender did not plead to the principal offence here, like he did there, and the offender’s antecedents were substantially more aggravating than those of Mr. Costain here.

[33] But there is more that must be taken into account here in fashioning the fit sentence for this offender. Apart from the need to factor in the reasonable prospects here and the offender’s strongly professed desire to rehabilitate himself, there are several other important principles that must come into play.

[34] A careful review of the case law suggests the existence of two distinct types of range for firearm possession offences. The first range is appropriate in circumstances where there is a confluence or conflation of drugs and firearms, and where the Court is faced with a multiple firearms-possessing offender. The second range has been imposed in circumstances where the accused has been found guilty simply of a second offence of simple possession of a firearm, without those other aggravating factors being present. However, I agree with defence counsel that there is no foundation for a sentence to be elevated to those heights where there is no meaningful combination of drugs and guns present that calls out for greater sanction, unless the offender is a multiple gun possession offender.

[35] For example, in R. v. Charles, above, the sentence imposed was six and a half years, but unlike Mr. Costain, that offender had five prior convictions for firearms. At paragraph 108, Cronk J.A. notes that the offender there conceded that a sentence of five years’ imprisonment for his section 95(1) offence alone was appropriate, even without the application of the five-year mandatory minimum sentence regime.

[36] Plainly, multiple repeat possession offences will command increasingly steep sentences as the offender demonstrates that he or she is ungovernable under our law and must simply be removed from society for the safety of the public at large. Similarly, in R. v. Tully[^15], Corrick J. sentenced the offender to six and a half years. However, none of the aggravating factors present there to which she referred in paragraph 34 was present here: there was no overcapacity magazine, the gun was not being transported through the streets of Toronto in a car, and the other repeat offender’s related aggravating factors were also not present here. As such, I regard the range of sentence proposed by the Crown to be unnecessarily elevated in the circumstances of this case.

[37] There is also the issue of the appropriate sentence for the breach of the prior prohibition order. I remain of the view that the objectives of sentencing require that a separate meaningful sentence be levied for breach of court orders. If the court does not do that, the violation of such orders becomes meaningless. Consecutive sentences for breaches of such orders have varied in length, depending on the severity of the repeat breach, or the number of times that such orders have been breached.[^16]

[38] Here, Mr. Costain has previously been convicted of a gun possession offence, but this is his first conviction for breaching a firearms possession prohibition order. As such, as in R. v. Addow[^17], I would sentence Mr. Costain to a sentence of nine months for the breach of the firearm possession prohibition order, consecutive to the sentences imposed for the firearms possession offences themselves.

[39] The mandatory minimum sentence that would otherwise be called for here for a simple second firearms possession offence would be five years’ imprisonment, were it not that the mandatory minimum sentence has been found to be unconstitutional by the Court of Appeal, and is presently under appeal to the Supreme Court of Canada. Nevertheless, in my view, a term of incarceration of five years is what is called for in the circumstances of this case. I regard five years as being, more or less, the minimum sentence that a second-time gun possession offender could or should receive.

[40] However, the appropriateness of that sentence here, as compared to the significantly stiffer sentence sought by the Crown, is necessarily informed in my assessment by the fact that a five-year sentence would already be three years more than the longest sentence Mr. Costain has served before, that he will be going to the penitentiary, that he should receive a consecutive sentence for the breach offence, and that he has reasonable prospects of turning his life around and has demonstrated some effort in that direction.

[41] As such, I consider the appropriate range of sentence in these circumstances to be between about five and a half and six and a half years in aggregate for all of the offences. This more lenient global conclusion is warranted, in my opinion, by (i) the decision of our Court of Appeal in R. v. Borde[^18] that requires that a first-time penitentiary sentence should be set at the lowest number that will meet the objectives and requirements of sentencing in the particular circumstances, and (ii) by the fact that I find that Mr. Costain still has rehabilitation prospects.

[42] In its particular composition, I have determined that the fit sentence in this case requires that Mr. Costain serve a total global sentence before pre-sentence custody credit of five years and nine months, composed as follows:

(i) Five years’ imprisonment for the s. 95(1) charge of possessing a loaded restricted firearm with ammunition, and two years concurrent for the s. 108(1) possession offence, to be served concurrent to each other. The conviction for the third firearms possession offence under s. 91 is conditionally stayed under R. v. Kienapple;

(ii) Nine months for the first offence of possession of a firearm while prohibited; and

(iii) three months for possession of cocaine, to be served concurrent to the sentence under (i).

Ancillary Orders

[43] The Crown seeks three ancillary orders: first, a firearms prohibition order for life under s. 109 of the Code and second, that the offender produce a DNA sample arising out of count 1 as a secondary designated offence, if he has not previously provided one, and thirdly, forfeiture orders relative to the gun and ammunition, but that the money seized from him be returned to him. The defence agrees with all of those orders, so those orders shall issue.

Disposition

[44] From August 5, 2012 to today’s date, Mr. Costain has spent a total of 710 days in pre-trial and pre-sentence custody. There is no dispute here following the decision in R. v. Summers[^19], that Mr. Costain is entitled to receive 1.5:1 credit for time served up to this date. That translates to a total of 1,065 days. That is 30 days less than three years of credit. Accordingly, Mr. Costain will receive two years and 11 months of credit for pre-sentence custody.

[45] That time served must be netted against the sentence I have determined is appropriate in this case. For the reasons set out above, I find that the fit sentence for this offender in these circumstances is five years and nine months of imprisonment at a federal penitentiary.

[46] As such, I hereby sentence you, Matthew Costain, to serve a remaining sentence after pre-sentence custody credit, of two years and 10 months, that is, 34 months. All ancillary orders are granted.

[47