ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-50000264-0000
DATE: 20141003

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARK GARDNER Jr., also known as CHERMAR GARDNER

Defendant

Catherine Rhinelander and Mary Lou Lou Armour, for the Crown

Paula Rochman, for the Defendant

HEARD: September 18, 2014

L. A. PATTILLO J. (Orally):

reasons for sentence

Introduction

[1] On August 27, 2014, I found Mark Gardner Jr., also known as Chermar Gardner, guilty of five counts of committing an offence for the benefit of a criminal organization contrary to s. 467.12 of the Criminal Code, five counts of instructing for the benefit of a criminal organization contrary to s. 467.13, two counts of possession of a loaded firearm without authorization contrary to s. 92(1), one count of transferring or offering to transfer a firearm, knowing he was not authorized contrary to s. 99(1), one count of possession of a firearm without authorization contrary to s. 95(1) and one count of trafficking in heroin contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA).

Factual Background

[2] In my reasons for decision dated August 27, 2014 (2014 ONSC 3292), I set out my factual findings leading to my conclusions of guilt. I do not intend to repeat them here.

[3] By way of brief summary, the events giving rise to the charges took place between September 1 and December 13, 2011. The evidence consisted mainly of recorded wiretap conversations involving Mr. Gardner (“Chermar”) and others, police surveillance and agreed statements of fact. Most of the charges arise from events that took place while Chermar was in Toronto or Hamilton. For three of the offences Chermar was convicted on (Counts 15, 16 and 17), the events took place primarily in Surrey, British Columbia.

[4] During the period in issue, Chermar was a member of a street gang which originated in the Jane and Finch area of Toronto and called itself the YBK. YBK was a group of young persons who mainly grew up together in the Yonge and Finch area of Toronto. The members of YBK were engaged primarily in the distribution and sale of different drugs although crack cocaine was the main drug. While the organization of YBK was somewhat loose, they were able to rent apartments or condos as safe houses for associates to work out of and to sleep. They also rented cars which they used to facilitate their business. I found on the evidence that YBK was a criminal organization within the meaning of s. 467.1 of the Criminal Code. I also concluded, based on information obtained from the wiretaps, that Chermar was one of the leaders of YBK.

[5] During the time period in question, Chermar, on behalf of both himself and YBK, was engaged in a continued course of trafficking in drugs. There were numerous calls involving Chermar were he was directly engaged in the trafficking of marijuana, heroin and crack cocaine. He dealt directly with the customer and then directed one of the members of YBK to complete the transaction. The trafficking was done for the benefit of YBK and its members (Count 5). Further, during the time period, the calls clearly established that Chermar, along with a number of individuals, agreed amongst themselves to set up and run programs to supply and sell drugs, not only in Toronto but in Hamilton as well (Count 6).

[6] On November 4, 2011, Chermar had separate discussions with two females during which he agreed to supply them with crack cocaine. He then instructed another member of YBK to carry out the two transactions, providing him with information about how to package the cocaine, where to go for the sales and what to charge. The individual then carried out the two sales. Chermar’s instructions to sell the cocaine were for the benefit of YBK (Count 19). On November 21, 2011, Chermar was engaged in a series of calls involving the sale by him of heroin to an unknown individual (Count 20).

[7] In addition to supplying drugs, Chermar and YBK were also involved in manufacturing them, specifically crack cocaine. On December 7, 2011, Chermar and another member of YBK were involved in the cooking of crack cocaine at Apartment 1801, at 221 Melvin in Hamilton. That was the apartment from which YBK and Chermar ran their drug trafficking program in Hamilton during the period in issue (Count 21).

[8] Given his involvement in drug trafficking for both himself and YBK, it is not surprising that Chermar was also involved with firearms. Firearms were a necessary part of YBK’s business. During the execution of multiple search warrants on December 13, 2011 in relation to Chermar and other members of YBK, multiple firearms, including handguns and long rifles were seized.

[9] During the period of the investigation, the wiretaps revealed that Chermar not only had possession of a firearm without authorization (Count 4) which was for the benefit of YBK (Count 3), he also was involved in obtaining and lending guns to other members of YBK for the benefit of the organization.

[10] In calls on November 5, 2011, Chermar arranged to have a .25 caliber handgun transferred to an associate (Count 2) which was for the benefit of YBK (Count 1).

[11] In early October of 2011, while he was in Surrey B.C. setting up a drug program, Chermar arranged to purchase two handguns, some marijuana and crack cocaine in order to send them all back to Toronto for use by YBK. Chermar instructed other members of YBK in Toronto to send Derrick Kusi (“Kusi”), a member of YBK, out to B.C. to be the courier. Kusi was in B.C. for just over 24 hours. During that time, Chermar instructed others to have the two firearms and the drugs delivered to Kusi and instructed him on how to pack them for travel. Chermar also made sure Kusi had sufficient money to purchase a bus ticket to Toronto. Kusi was arrested on October 15, 2011 at the Surrey bus terminal after having purchased a bus ticket to travel by bus to Toronto. He was found with the two guns, ammunition and an ounce of crack cocaine (Counts 15, 16 and 17).

[12] On December 11, 2011, Gaddiel Ledinek, who was a member of YBK, was shot in the foot in Hamilton. While Chermar was in the vicinity, he was not present when the shooting occurred. Shortly after the shooting, Chermar was called by one of his associates who was with Ledinek. Chermar told them to call 911 which they did. A few minutes later, before the police arrived at the scene, the associate called Chermar back. He asked Chermar what they should do with the gun they had. Chermar instructed them to give the gun to another associate who was present, Prince Assante, and have him leave. Chermar and another associate, Shamaury White, then joined up with Prince Assante in a black Charger but they were stopped by police a few minutes later. Prince Assante was arrested but Chermar and White ran and escaped custody. The police subsequently found a loaded .45 caliber automatic handgun on the floor of the Charger. From the wiretap conversations between Chermar and his associates just after the shooting and between Chermar and White later that evening and the next day, it was clear that Chermar knew at the time that the loaded handgun was in the Charger, that he had an element of control over it (Count 23) and he knew that he was not authorized to have it (Count 24). I also found on the evidence that Chermar’s instructions to his associate to take the gun and leave before the police arrived were done for the benefit of YBK and in his role as a leader of YBK (Count 25).

Chermar Gardner

[13] Chermar is 22 years old. He was born on October 20, 1992 and had his 19th birthday during the events in issue. He was raised by his mother as a single parent in the notorious Jane and Finch area of Toronto. When he was three, his father, Mark Gardner Sr., was convicted of murder and has been serving a life sentence in federal penitentiary. He has a younger brother and sister. His brother, Quinton, who is currently 18, has been in trouble with the law and has spent time in custody. Chermar has no criminal record.

[14] Chermar’s mother, Cheryl Revibes, was a regular attendee during the trial. At the sentencing hearing she filed a long letter which described the difficulties she has faced raising her children as a single parent in the Jane and Finch area. When Chermar was young she sent him to Calgary to live with his uncle to get him out of the environment but he got homesick and came home shortly thereafter. She blames herself for not being able to get Chermar out of the criminal environment that existed in the area where they lived.

[15] Chermar is a bright person. He is also likeable and quite articulate when the slang words are abandoned. Those characteristics come across clearly during the wiretaps and also in the statement he provided to me at the end of the sentence hearing. As a young man, basketball was his passion and he was very good at it. By the time he got to high school, his size began to interfere with his advancement in the sport. He no longer saw school as having any value and started to skip school without his mother’s knowledge. Eventually, he dropped out. He obtained only 7 credits towards his high school diploma. He worked at various jobs for minimum wages but saw other kids in his neighborhood making fast money dealing drugs. It was an easy transition.

[16] Mr. Devon Jones, a teacher with the Toronto District School Board, filed a letter on Chermar’s behalf. Mr. Jones is also a director and co-founder of “Youth Association for Academics, Athletics and Character Education” which is a grassroots community organization operating out of the Jane and Finch area of Toronto. Mr. Jones first met Chermar when he was in grade six at Brookview Middle School where he is a teacher. He worked with Chermar as both a student and in the community through basketball and other programs. Mr. Jones describes Chermar as a “very productive, engaging and respectful student.” After Chermar left Brookview, Mr. Jones has had infrequent contact with him. Based on his association with Chermar 12 years ago he said he would not have assumed that Chermar would be in the trouble he’s in but, given the realities of the area in which he lived, it is an all too common occurrence for children and youth in under-resourced racialized communities.

[17] Chermar has had a girlfriend since November 2010 and has said they plan to get married and have a family. He wants to move to Calgary where they can start a new life. His uncle in Calgary, who he went to live with briefly when he was younger, has provided a letter to the court indicating that he is prepared to give Chermar a second chance and offer him both a job and a place to live.

[18] As noted, at the conclusion of the sentence submissions, Chermar addressed the court. He apologized on a broad basis to all the people he had hurt, including his family, the police and the court. He acknowledged that what he did was wrong and that he regretted it. He said he was humiliated listening to his phone conversations and the language he used and that the trial had been a humbling and learning experience for him. He wished to leave behind the life he was living when arrested and when his legal troubles are over, he plans to go out west to Calgary, get a real job and have a family.

[19] Chermar was arrested on December 13, 2011, along with a number of other individuals, many of whom were members of YBK. He has remained in custody since that time, a period of 2 years, 9 months and 20 days to today or just shy of 33 months. He has been shuffled between various detention centers in the Metro area during that period which has directly affected his ability to partake in any of the programs offered in a meaningful way. The Crown and Defence have agreed that he is entitled to pre-sentence custody credit of four years. That is slightly less than the maximum 1:1.5 ratio permitted. I too agree.

Mitigating Factors

[20] I turn next to the mitigating factors in this case. Chermar is a young man. He is only 22 now and was 18 at the time of the offences. He is obviously bright and a leader. He has no criminal record.

[21] I consider that much of the direction of Chermar’s life to this point has been shaped by environment of the neighborhood in which he grew up.

[22] It is also clear that he has the strong support of his mother and his uncle in Calgary.

[23] Finally, as noted, Chermar has been in custody for approximately 33 months.

Aggravating Factors

[24] Unfortunately there are a number of aggravating factors in this case. The offences for which Chermar has been found guilty are many and they are very serious. They involve organized trafficking in drugs and possession of guns for the benefit of a criminal organization. Drugs and guns are bad individually but together they constitute a lethal combination. They are even worse when associated with a criminal organization. Further, Chermar was one of the leaders of YBK and in that role, instructed various members of YBK to carry out criminal offences on behalf of YBK.

[25] Nor do the offences involve an isolated occurrence. The trafficking and dealing with guns took place on a continuous basis over the three and a half months of the investigation. They occurred in a number of different locations, including Toronto, Hamilton and Surrey B.C. It is also clear from the evidence that the criminal activity in question had been taking place before September 1, 2011. Further, the trafficking that took place was more than street level trafficking. Chermar and his associates were also engaged in manufacturing crack cocaine and supplying it and other drugs to not only the end users but to dealers as well.

[26] The trafficking enterprise that Chermar was engaged in generated significant monies for not only himself personally but for YBK which enabled the members to rent apartments or condos as safe houses, to rent vehicles and to purchase guns and drugs to facilitate their drug programs and further their operations. It also is apparent from the wiretaps, that during the period in issue, Chermar was engaged full time in not only carrying out YBK’s business but in furthering it.

[27] The evidence established that Chermar and his fellow YBK associates had access to multiple guns which were used not only for protection while carrying out their drug programs but also for retaliation if required. During the period of the investigation, their activities resulted in guns being fired and people being hurt. Early in the morning of October 15, 2011, Christopher Rookwood, an associate of Chermar’s, was shot and killed in Toronto in a house where other YBK members were present and had guns. Rookwood had just turned 20. At around 9 p.m. on October 21, 2011, two shots were fired at the Wilson subway station. A video from the station and subsequent phone calls established that the shots were fired by a YBK member. Fortunately, no one was hurt. Finally, and as already mentioned, Ledinek was shot in the foot in Hamilton on December 11, 2011. From the calls, it was clear that Chermar, White and others knew who the shooter was and there was some talk of retaliation. The arrests two days later intervened.

(Decision continues with sentencing analysis and disposition exactly as in the original judgment.)

L. A. Pattillo J.

Released: October 3, 2014