COURT FILE NO.: CR-14-10000658-0000
DATE: 20141217
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
MESHACH NASHLEI BROWN
Erin Winocur, for the Respondent
T. Smith, for Brown
HEARD: November 27, 2014
M. DAMBROT J.:
Background
[1] Meshach Brown and his co-accused, Melissa Edwards, were tried by me with a jury on an indictment alleging several firearm and drug related offences. These offences arose out of seizures made during a search at the dwelling at 11 Graham Crescent (“11 Graham”) in Brampton, Ontario on September 6, 2012. Brown was found guilty of the following:
possession of a loaded prohibited firearm, knowing that neither he nor Edwards held an authorization or licence to possess it in that place or a registration certificate (s. 95(1) Criminal Code);
possession of a prohibited weapon, namely a magazine capable of holding more than ten rounds of ammunition, knowing that neither he nor Edwards held a licence to possess it or a registration certificate (s. 92(2) Criminal Code);
possession of a weapon knowing that the serial number on it had been altered, defaced or removed (s. 108(1) Criminal Code);
possession of approximately 1 ounce of crack cocaine for the purpose of trafficking (s. 5(2) Controlled Drugs and Substances Act); and
possession of $750 knowing that it was obtained or derived directly or indirectly from trafficking in cocaine (s. 354(1) Criminal Code).
[2] I note that when it was seized, the magazine in count 2 was attached to the firearm in count 1, and that the weapon in count 3 was the firearm in count 1. I further note that Edwards was also found guilty of counts 4 and 5, but was acquitted of counts 1 to 3.
[3] Following the jury’s verdict, counsel for the Crown and the offender consented to the evidence heard on the jury trial applying to a second indictment alleging three counts of possessing a firearm while prohibited from doing so by an order made under the Criminal Code contrary to s. 117.01 of the Criminal Code. I consequently found Brown guilty of those three additional counts.
[4] I am now obliged to impose sentence on Mr. Brown for these eight offences.
The Offences
[5] On July 30, 2011, the offender participated in a hotel room robbery of two visitors to Toronto who were here to enjoy the Caribana festival. The police obtained photographs and video from the internet and surveillance cameras that enabled them to identify most of the persons whom they believed had participated in the robbery. In August and September, 2011, a number of arrests were made. Warrants were obtained for persons who were identified but could not be located, including Brown. In fact, Brown spent most of his time in Montreal after the robbery.
[6] On August 28, 2012, the police obtained a tracking warrant and assistance order for two cell phones believed to belong to Brown. A confidential informant had recently provided the phone numbers for these cell phones to the Peel Regional Police, making it possible to obtain and execute the tracking warrant.
[7] On September 5, 2012, the service provider for the cell phones believed to belong to Brown provided the police with the general location of one of those cell phones. This information, together with the fruits of a Facebook investigation conducted by the police, led them to believe that the cell phone was at 11 Graham. The police set up surveillance at that location.
[8] At 5:40 p.m., Brown was observed to briefly emerge from 11 Graham talking on a cell phone, and then re-enter the premises. Shortly before 7:47 p.m., the police observed a Porsche motor vehicle pull up in front of the residence. At 7:47 p.m. Brown again came out of 11 Graham. Based on information from the service provider, it is likely that the cell phone had remained inside 11 Graham from shortly after 5:40 p.m. to 7:47 p.m. When he emerged at 7:47 p.m., Brown got into the front passenger seat of the vehicle and the driver drove away. The service provider confirmed that the cell phone location had moved along with the Porsche.
[9] At 7:55 p.m., the vehicle was stopped about eight kilometres from 11 Graham and Brown was arrested. A cell phone was seized from Brown and examined. Other officers put in process an effort to obtain a search warrant for 11 Graham.
[10] At 8:43 p.m., police officers entered 11 Graham and secured the premises pending the issuance of the search warrant. Upon entering the premises, the officers learned that the name of the person who admitted them was Edwards. Once they were inside, they learned from the officer in charge of the robbery investigation that grounds existed to believe that she had been a participant in the robbery. She was placed under arrest at 9:47 p.m.
[11] A telewarrant was issued at 1:00 a.m. on September 6, 2012. It authorized a search of 11 Graham, which was said in the ITO to be the residence of Brown and Edwards. The police had sought a warrant that could be executed at night, but despite the fact that it was disclosed in the ITO that the police were in the premises, the justice would only permit the warrant to be executed after 5:59 a.m. on September 6, 2011. The ITO included significant information tending to establish that Edwards resided at 11 Graham. It also included reference to evidence of an association between Brown and Edwards, the observations of Brown at 11 Graham on September 5, 2012 between 6:00 and 8:00 p.m., and the arrest of Brown after leaving the residence that evening.
[12] In the course of the search, the police seized, amongst other things, a loaded machine pistol with one round of ammunition in the chamber and a high capacity magazine containing eight 9mm rounds of ammunition, four separate 9mm rounds of ammunition, an ounce of crack cocaine, $750 in Canadian currency, a digital scale, several dime bags, several cell phones, the white T-shirt believed to have been worn by Brown in the robbery, and an Ontario Health card in Brown’s name with his photograph on it. It was established at trial that the items I have mentioned were all found in Edwards’ bedroom, that Brown was staying with Edwards in that bedroom some of the time, and that he kept clothing and other belongings there.
[13] Having regard to the findings of the jury, I am satisfied beyond a reasonable doubt that the offender was engaged in selling crack cocaine with the assistance of Edwards. The offender did not suggest otherwise. But the nature of his possession of the pistol and ammunition was the subject of argument.
[14] The offender did not testify at trial, but did call one of his brothers as a witness. His brother tried to take responsibility for the pistol, although not the drugs, and provided a rather fanciful explanation for leaving what he said was his pistol in Edwards’ room. Needless to say, he said that he did so without telling the offender.
[15] Counsel for the offender argued that the jury may well have believed the evidence of the brother, but found the offender guilty of possession of the pistol on the basis of wilful blindness. I concede that that is possible, although highly unlikely. However, it is not my task to speculate about what the jury may have believed. A trial judge must accept as proven all facts that are essential to the jury's verdict of guilty, and, in addition, is entitled to find relevant facts for the purposes of sentencing. The Crown has the burden of proving aggravating facts beyond a reasonable doubt. (See R. v. Clarke, 2014 ONCA 777 at para. 20.) Here, the verdict compels me to accept that the accused had a state of mind essential for a finding of possession of the pistol, but leaves me free to find for myself his precise state of mind if I can.
[16] It is my view that the evidence given by the offender’s brother is unworthy of belief. It was a far-fetched contrivance advanced in a failed effort to exculpate the offender. I place no reliance on his account of the presence of the pistol at all. Instead, having regard to the totality of the evidence, I am satisfied beyond a reasonable doubt that the offender was an active drug trafficker who had knowing possession of the loaded pistol with additional readily available ammunition in the bedroom he occupied around the time of the search. I further conclude that he had these items in order to enhance his ability to carry on his trade effectively.
[17] I note that on March 28, 2014, the offender was found guilty of two counts of robbery arising out of the Caribana festival incident and sentenced to the equivalent of 3 years imprisonment, achieved by the imposition of 9 months of imprisonment in addition to 18 months of pre-trial custody for which he was given for 27 months of enhanced credit. He completed serving this sentence a little more than two months ago.
The Offender
[18] The offender is 30 years of age. He is the second oldest of five brothers. He grew up in the Jane-Finch area of Toronto in extreme poverty. He remains close to his family, particularly his mother, and continues to have his family’s support. His father was deported when the offender was 12, and the offender has worked at factory jobs since he was 13. He operated Black Warrior Entertainment while living in Montreal, producing parties and shows.
[19] The offender has three sons, and has tried to play a parental role with Edwards’ son. He asserts that he has played a positive role, but Edwards’ mother has a different view. Having regard to his trade, his leaving the loaded gun in Edwards’ closet, his sporadic presence, and his attracting his associates to Edwards’ home, I am unable to find that he has played any significant positive role with this child.
[20] The offender has a lengthy and serious criminal record. He committed several offences as a youth, including assault, assault with a weapon, sexual assault, two separate robberies, two fail to comply offences and obstructing a peace officer. As an adult, he has been convicted of drug offences in 2003, 2006 and 2008. On the last occasion he was sentenced to 2 years imprisonment, his longest period of imprisonment prior to the most recent robbery offences. Associated with these drug offences were possession of proceeds of crime offences, failure to comply offences, a flight offence, an uttering threats offence, several firearms and ammunition offences, all apparently related to a single firearm, an obstruct of a peace officer offence and a perjury offence.
[21] The offender finished grade 12 while imprisoned, and has done some upgrading of his skills. Significantly, he has engaged in no misconduct while in custody over the last two years. This is in marked contrast to his past periods of imprisonment, when, in his counsel’s words, he was not an easy prisoner. There is reason to believe that, belatedly, he may be trying to make a change in his life.
[22] In fact, at the sentencing hearing, I was provided with a letter addressed to me and handwritten by the offender. In it, he acknowledges that he has told courts many times before that he was going to change and live his life in a different manner, but this time, he correctly observes, he is able to demonstrate some change. As I have already noted, there have been no “incidents” while he has spent the last 26 months in custody. He says that he accomplished this to prove to himself that he can continue to stay out of trouble when he is released. He says that he needs to believe in himself before he can ask others to believe in him, and he now believes he can change. He recognizes the stupidity of his past thinking, and is no longer intrigued by his past life. His biggest fear is that one of his sons might follow in his footsteps.
The Positions of the Crown and the Defence
[23] Crown counsel submitted that the circumstances of these offences speak to the need for strong specific deterrence in addition to denunciation and general deterrence. In taking this position, she observed that these are gun and drugs offences involving an offender with a long criminal record; that the circumstances of his 2006 convictions were very similar to these, involving drugs and possession of a firearm with ammunition in a motor vehicle; and that vulnerable children and adults were put at risk by his bringing a loaded firearm into their residence without their knowledge. She further argued that there were virtually no mitigating circumstances. While the offender’s letter expresses some remorse, it amounts to no more than some reason for hope. He has not yet taken responsibility for his actions in any meaningful way.
[24] As a result, Crown counsel submitted that a sentence of 10 to 13 years less credit for pre-trial custody would be appropriate. She invited me to impose 6 to 8 years for the weapons offences, 2 to 3 years consecutive for the drug and proceeds offences and an additional two years for the breach of prohibition order offences.
[25] Counsel for the offender argues that on the assumption that the firearms offences were grounded on wilful blindness, a sentence of 5 to 6 years would be appropriate, having regard to the offender’s demonstration of some remorse and determination to change his life, the fact that the gun was not found in a public place, the fact that the amount of cocaine was not as great as in some cases, the fact that this is only the offender’s second gun offence, the fact that the offender had not been sentenced to a term of imprisonment of more than two years at the time when he committed these offences, and the fact that the offender will have spent slightly more than 2 months in custody that is attributable to these offences before he is sentenced. Counsel for the offender did agree that the sentences should be grouped as the Crown suggested.
Analysis
[26] There can be no doubt that this is a very serious group of offences, calling for a sentence that emphasizes denunciation and general deterrence. Possession of a prohibited firearm alone calls for such a sentence, for reasons that have been stated repeatedly by the courts in the Province, and need not be repeated again. The seriousness of these offences is aggravated in this case by a number of considerations:
• The gun was loaded, with a bullet in the chamber, ready to be fired;
• Additional ammunition was at hand;
• The gun had been brought into a private dwelling by the offender, who was a guest, without the knowledge of the occupants, putting them at risk;
• The room in which the gun was carelessly stored was also occupied by a toddler. Edwards’ 7 year-old brother also lived in the premises. Both of these children were placed at particular risk by the presence of the firearm;
• The gun was obviously intended to be used in conjunction with drug trafficking, a particularly toxic mix;
• The drug in question was crack cocaine, a dangerous drug, and the quantity involved, while not enormous, was substantial;
• The possession of the cocaine was clearly for the purpose of commercial trafficking;
• The offender has a significant criminal record, which includes robbery offences, drug offences, firearm offences, and offences against the administration of justice; and
• The offender was subject to three prohibition orders, although this is the subject of three specific charges, and must not be double counted.
[27] The history of the offender requires that the sentence also reflect the need for specific deterrence.
[28] By way of mitigation, the letter prepared for me by the offender and his pre-trial prison conduct reflect some degree of remorse, and hold out some hope of rehabilitation.
[29] In imposing sentence, I bear in mind the so-called jump principle. I am being asked to impose a sentence that is significantly greater than the sentences imposed on him previously. However in the circumstances, I cannot give undue effect to this principle. When an offence is very serious, and when denunciation and general deterrence must prevail, the sentence may have to be more than incrementally greater than earlier sentences for less serious offences if it is to achieve its purpose.
[30] I also bear in mind the totality principle. The accumulation of offences must not result in a sentence that is so great that it crushes the offender, who is still relatively young, or that extinguishes any hope of rehabilitation.
[31] Doing the best I could to balance all of these considerations, I reached the preliminary view that a total sentence of 10 years and 6 months less consideration for pre-trial custody would be the least onerous sentence that would satisfy the need for denunciation and general and specific deterrence in this case. But having regard to the indication of remorse and the hope for rehabilitation raised by the offender’s post-arrest conduct and his letter, I will instead impose a total sentence of 9 years and 3 months, less 3 months credit for pre-trial custody.
Disposition
[32] I impose a sentence of 9 years and 3 months, less 3 months credit for pre-trial custody as follows:
Indictment #1:
possession of a loaded prohibited firearm – 6 years and 3 months less 3 months for enhanced credit for pre-trial custody.
possession of a prohibited weapon, namely a magazine capable of holding more than ten rounds of ammunition – 3 years concurrent to count 1.
possession of a weapon knowing that the serial number on it had been altered, defaced or removed - 1 year concurrent to count 1.
possession of crack cocaine for the purpose of trafficking – 2 years consecutive to count 1.
possession of $750 knowing that it was derived from trafficking in cocaine – 1 year consecutive to count 1 but concurrent to count 4.
Indictment #2:
possessing a firearm while prohibited from doing so – 1 year consecutive to count 4 in first indictment.
possessing a firearm while prohibited from doing so – 1 year consecutive to count 4 in first indictment but concurrent to count 1 in second indictment.
possessing a firearm while prohibited from doing so – 1 year consecutive to count 4 in first indictment but concurrent to count 1 in second indictment.
[33] In addition, I impose a DNA order pursuant to s. 487.051(2) of the Criminal Code, and a weapons prohibition for life pursuant to s. 109 of the Criminal Code.
M. Dambrot J.
Released: December 17, 2014
COURT FILE NO.: CR-14-10000658-0000
DATE: 20141217
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
MELISSA EDWARDS and MESHACH NASHLEI BROWN
Applicants
REASONS FOR RULING
DAMBROT J.
RELEASED: December 17, 2014