R. v. Elie, 2015 ONSC 300

COURT FILE NO.: 14-30000120-0000

DATE: 20150114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DONIELE ELIE

Defendant

Jonathan Smith, for the Crown

Paul K. Mergler, for the Defendant

HEARD: December 18, 2014

r.f. goldstein j.

reasons for sentence

1. Overview

1This is an extremely sad case. Mr. Elie has spent a significant amount of his young life in jail. He is just 22 years old. He now faces a very significant jail sentence for offences relating to the possession of a firearm. The issue here is what I am to do with this very young man who still has most of his life before him, a child to care for, but who, regrettably, appears to present a danger to the rest of society.

2Mr. Elie pleaded guilty to the following offences:

• Being the occupant of motor vehicle knowing that a firearm was present contrary to s. 94(1) of the Criminal Code;

• Possession of a loaded, prohibited firearm while not being the holder of an authorization or licence contrary to s. 95(1) of the Criminal Code;

• Possession of a firearm knowing he was not the holder of a licence contrary to s. 92(1) of the Criminal Code; and,

• Possession of a firearm while under a weapons prohibition contrary to s. 117.01(1) of the Criminal Code

Mr. Elie has been in custody since his arrest on July 13, 2013.

2. The Facts

(a) Circumstances of the offence

3In July 2013 the police conducted an investigation into a shooting that took place on June 26, 2013. Mr. Elie was a person of interest. As a result, on July 13, 2013 the police had him under surveillance.

4At the time Mr. Elie lived at 100 Rowena Drive in in Scarborough with his girlfriend, Kenisha Cummings. Ms. Cummings was pregnant. At about 3:00 pm Mr. Elie and Ms. Cummings left 100 Rowena Drive and took a TTC bus one stop. Mr. Elie and Ms. Cummings got off the bus. The police immediately arrested them. Mr. Elie was carrying a 9mm semi-automatic Smith and Wesson pistol. There was one round in the chamber and 13 rounds in an over-capacity magazine. There is no question that the weapon was a prohibited weapon. A firearms expert tested the weapon and found that it was in good working order, and that the rounds were live ammunition. Tests confirmed that the firearm was the weapon that was used in the June 26 2013 shooting. The Crown does not, however, allege that Mr. Elie was the shooter or involved in the shooting.

5At the time of the arrest, Mr. Elie was on a lifetime firearms prohibition pursuant to s. 109 of the Criminal Code. The weapons prohibition arose from a previous sentence that had been imposed by Mr. Justice Lipson of the Ontario Court of Justice on January 27, 2012. As I will deal with later in these reasons, the convictions entered by Justice Lipson related to two shootings that Mr. Elie was involved in, as well as possession of two firearms in a motor vehicle.

6When he was arrested, Mr. Elie gave two videotaped statements to the police. On the first statement, Mr. Elie indicated to the officers that he had been advised by a lawyer not to give a statement and that he did not did not wish to give a statement. The only information that he would give the police was that his girlfriend did not know anything about the firearm. On the second statement, Mr. Elie admitted that he owned the firearm but told the police that his girlfriend, Ms. Cummings, knew nothing about it. He said that he had bought the firearm earlier that day from a tall, skinny white guy named “G” for $1500.00. He said that he had paid for it from money that his family gave him. He said that he had met him 13 or 14 days earlier at the Parkwood Mall. He indicated that “G” had called him earlier that day and that he had met “G” on the street in the early morning. The police clearly did not believe him.

7Mr. Mergler, on behalf of Mr. Elie, called Mustapha Alawiye to give evidence. Mr. Alawiye testified that he was convicted of robbery in 2012. He is currently facing a significant number of charges, including (and I am only mentioning the low-lights): robbery with a firearm, assault with a weapon, discharging a firearm, possession of firearm, disguise with intent, possession of firearm obtained by commission of an offence, possession of cocaine for the purpose of trafficking, and forcible confinement. He is detained in custody.

8Mr. Alawiye testified that he had been a close friend of Mr. Elie but that they lost touch in 2009. They re-acquainted in 2013 when they bumped into each other in the Eaton Centre. They exchanged telephone numbers and on July 10 2013 Mr. Alawiye called Mr. Elie. They made arrangements for a visit at Mr. Elie’s home in Scarborough. Mr. Alawiye’s friend PuffPuff drove him over, as he did not live in Scarborough.

9Mr. Alawiye further testified that he brought his “strap”, or gun with him. His gun was a black 9mm firearm that he purchased for $800 from a guy in his neighbourhood named Shabba. He said that he took his gun with him everywhere. PuffPuff generally drove him. He preferred to use PuffPuff’s car because PuffPuff had a special stash spot where the gun could be hidden in case the police stopped them and searched the car. As well, he testified, PuffPuff knew Scarborough and Mr. Alawiye did not.

10Mr. Alawiye testified that when he arrived at Mr. Elie’s he left his bag with his gun in the apartment. He and Mr. Elie visited. When it was time to leave, PuffPuff was no longer available to drive him. He hid the gun in Mr. Elie’s room and took a taxi home. The next morning he called Mr. Elie and told him he had left something in his apartment. Mr. Elie, he said, panicked. They made arrangements to meet at the Kennedy TTC station that morning. Mr. Elie did not show up. He next saw Mr. Elie when they were both in custody together on the same range. Mr. Alawiye testified that he felt terrible about what had happened and talked to his lawyer about it. His lawyer then contacted Mr. Mergler.

(b) Circumstances of the offender

11As noted, Mr. Elie is a very young man, only 22 years of age. He and his girlfriend, Kenisha Cummings, have a young son. At the time of the arrest he was working at two jobs.

12Mr. Elie’s criminal record consists of convictions under the Youth Criminal Justice Act. In 2010 he was convicted in Coburg of one count of assault and received 12 months probation. In 2012 he was convicted of break, enter, and theft; two counts of discharging a firearm with intent to endanger life; possession of a loaded restricted firearm, and possession of a restricted firearm. Mr. Justice Lipson granted a Crown application to have Mr. Elie sentenced as an adult.

13The 2012 sentence arose out of three incidents in 2009. On September 25 of that year. Mr. Elie was involved in a home invasion. He and his confederates tracked a couple from a shopping mall to their home. When Mr. Elie and his fellow robbers entered the house the homeowners fled and yelled at a neighbour to call the police. The neighbour did so. One of Mr. Elie’s confederates shot at the neighbour. The neighbour was struck in the foot. He suffered injuries due to the gunshot wound but lived. The homeowner’s iPhone was stolen. The police recovered shell casings at the scene. Mr. Elie was aware that one of his confederates had a loaded firearm and might use it in the robbery.

14The next day, September 26 2009, Mr. Elie was at a party. Another man bumped into him on the dance floor. Mr. Elie then confronted him outside the party and shot the man twice in the leg. The victim underwent surgery but lived. The police recovered shell casings at the scene.

15Mr. Elie was subsequently arrested in a vehicle with two 9mm handguns, one of which was loaded. The shell casings from the September 25 and 26 incidents were a match to one of the handguns. When Mr. Elie was arrested he was found in possession of the stolen iPhone.

16Justice Lipson sentenced Mr. Elie to a period of 20 months in jail in light of credit for 52 months of pre-trial custody. Mr. Elie had actually spent 28 months in custody at that point. Justice Lipson found that the range of sentence for the offences was 6 to 8 years. Mr. Elie was obviously sentenced as a principal to the robbery, and as a party to the shooting of the neighbour. He was obviously a principal to all the other offences.

17Mr. Elie spent most of his pre-trial detention in a youth custody facility. Later in his sentence, he was transferred to the adult facility at Penetang. As Mr. Mergler points out, he has not yet been placed in the penitentiary.

18Mr. Elie wrote anguished letters while in custody, describing how much he hated jail. He did, however, quite well while in custody. He stayed out of institutional trouble, and he managed to complete high school. Those facts stand out in his favour.

(c) Impact on the victim and the community

19As has been pointed out in case after case, there is nothing more dangerous to the peace and safety of the community than illegal firearms. Many lives have been snuffed out in this city by illegal firearms in the last few years, not only people involved in criminal activity but innocent bystanders as well.

20Transporting an illegal firearm on a TTC bus creates a situation of extreme danger. Busses, obviously, carry far more passengers than a car. Furthermore, handguns have only one purpose, which is to kill large numbers of people at relatively close range. A TTC bus is the ideal place to ensure that if a firearm is discharged, it is going to hit someone, and possibly more than one person.

3. Legal Parameters

21Being the occupant of motor vehicle knowing that a firearm was present contrary to s. 94(1) of the Criminal Code carries a maximum penalty of ten years.

22Possession of a loaded, prohibited firearm while not being the holder of an authorization or licence contrary to s. 95(1) of the Criminal Code carries a maximum penalty of ten years, but a minimum of five since this is Mr. Elie’s second offence. The mandatory minimum has been found to be unconstitutional: R. v. Charles, 2013 ONCA 681, 117 O.R. (3d) 456, 303 C.C.C. (3d) 352, [2013] O.J. No. 5115. See also R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, 303 C.C.C. (3d) 474, [2013] O.J. No. 5120. Nur and Charles have been argued at the Supreme Court of Canada and are currently on reserve.

23Possession of a firearm knowing that he was not the holder of a licence contrary to s. 92(1) of the Criminal Code carries a maximum penalty of ten years, but a minimum of one year given that this is his second offence.

24Finally, possession of a firearm while under a weapons prohibition contrary to s. 117.01(1) of the Criminal Code carries a maximum penalty of ten years.

4. Positions of the Crown and Defense

25Mr. Mergler’s position is that the evidence suggests that Mr. Elie is guilty of an enormous error of judgment and should be punished at the low end of the spectrum. He suggests that if I find that Mr. Elie’s possession was merely fleeting and unintentional, then I should find exceptional circumstances and sentence him to time served on all offences (which, at a rate of 1.5:1 works out to a sentence of slightly over 2 years and 3 months) and a lengthy period of probation. Given that the mandatory minimum has been struck down that disposition is available to Mr. Elie.

26Mr. Smith’s position on behalf of the Crown is that an appropriate sentence is 6 ½ years in totality. He suggests that a sentence of 5 ½ years for the possession of the firearm (s. 95), with four years concurrent on the possession without a licence count (s. 92) and the possession while in a vehicle count (s. 94). He seeks a consecutive sentence of one year for the breach of the weapons prohibition (s. 117.01).

27Both counsel agree that I can take Mr. Elie’s pretrial custody into account at a ratio of 1.5:1. See: R. v. Summers, [2014] S.C.R. 575.

5. Case Law

28Mr. Mergler very fairly concedes that if I do not accept his position that Mr. Elie’s possession was merely fleeting and unintentional, than the Crown’s position is not unreasonable. Accordingly, it is not necessary for me to examine the case law in detail. I will merely mention some of the more recent cases from this jurisdiction.

29In R. v. Costain, 2014 ONSC 4247, [2014] O.J. No. 3400 a jury found the accused guilty of possession of firearms. Mr. Costain had discarded a handgun while fleeing from the police during the course of the execution of a search warrant. He had a significant criminal record, including convictions as both a youth and as an adult for armed robbery, and possession of firearms. He was on a weapons prohibition at the time of the offence. Quigley J. noted that the appropriate range of sentence was 5 ½ to 6 years in custody. He sentenced Mr. Costain to a global sentence of 5 years and 9 months less pre-trial custody. The sentence was apportioned at 5 years for the possession of the firearm, and 9 months consecutive for the breach of the firearms prohibition order.

30In R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749 the accused was convicted of possession of a loaded handgun. He was on three weapons prohibition orders and two probations. Justice Molloy sentenced him to a global sentence of six years: four and one-half years for the firearms possession offence, and an additional 18 months consecutive for breaching the prohibition and probation orders.

31In R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 the accused was found guilty of possession of a handgun and being in a motor vehicle known to contain a firearm. He was racing with another vehicle and tried to evade the police. He was eventually arrested. His vehicle was searched and a handgun was found secreted within it. Justice K. Campbell sentenced Mr. Ellis to a global sentence of five years and 8 months.

32It bears noting that Mr. Mergler relies principally on the Ontario Court of Appeal’s decision in R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, [2003] O.J. No. 354 (C.A.). The offender was sentenced to 5 years and two months after pleading guilty to possession of a loaded restricted firearm, aggravated assault, and use of a firearm in the commission of an offence. The Court of Appeal found that where a youthful offender is facing his first penitentiary sentence, the length of the sentence should rarely be determined only by the objectives of denunciation and general deterrence. I note, however, that the only change in the offender’s sentence was to reduce the sentence for aggravated assault so that the global sentence was four years and two months.

33In my respectful view, while the principle in Borde is still appropriate, it has been overtaken, to some degree, by developments in legislation and in the case law in the circumstances of firearms offenders. I note that in Nur at para. 56 Doherty J.A. stated:

Section 95 is, without question, a valid expression of the federal criminal law power: Firearms Reference, at para. 33. Nor, in my view, can it be successfully argued that the criminal prohibition created by s. 95, coupled with a mandatory minimum penalty, is not a rational legislative response to the very real public safety concerns associated with the possession of the kinds of firearms described in s. 95, either when loaded or readily capable of being loaded. In 1994-1995 and again in 2005-2006, Parliament had before it a wealth of information indicating that gun violence and related criminal activity were taking a massive human and economic toll, especially in communities in Canada's large cities where social and economic conditions provided fertile ground for gang- related activities. Young males in those communities were particularly likely to be caught up in gun violence, both as users and as victims. The evidence before Parliament in 2005-2006 indicated that earlier attempts to stem the increase in gun violence and related criminal activity had not been successful.

34See also Cronk J.A.’s comment in Charles at para. 105.

35In my respectful view, even though the Court of Appeal struck down the mandatory minimums, there is no doubt that it endorsed the principle that general and specific deterrence are the key principles of sentencing in these cases.

36My review of the case law leads me to make the following general points:

• The range of sentence for this subsequent firearms offence is 5 ½ to 7 years;

• Even in the absence of a mandatory minimum, offences involving loaded handguns will ordinarily attract a significant penitentiary sentence;

• Breaches of weapons prohibition orders will ordinarily attract consecutive sentences;

• The protection of the public is paramount in cases involving offenders who possess and use illegal handguns.

6. Mitigating and Aggravating Factors

37By calling Mr. Alawiye, Mr. Mergler engaged in a sort of reverse Gardiner hearing. His point was to call evidence that, if accepted, would amount to a mitigating factor. His position is that he need only show on a balance of probabilities that Mr. Elie’s possession of the firearm was only fleeting and unintentional.

38I agree with Mr. Mergler that, unlike the Crown, which must demonstrate aggravating circumstances beyond a reasonable doubt, the defence need only demonstrate a mitigating factor (where it is contested) on a balance of probabilities.

39Mr. Mergler relies principally on three pieces of evidence:

• the first video interview where Mr. Elie does not admit to possession of the gun;

• the second video interview where Mr. Elie states that he purchased the gun that morning; and,

• the evidence of Mr. Alawiye that the weapon was really his and that he had made arrangements to get it back from Mr. Elie.

40Mr. Mergler argues that the explanation that Mr. Elie gave to the police about the origins of the firearm was preposterous. I agree. The police clearly did not believe him. It is clear that he cooperated in order to have the charges against his girlfriend dropped. I also accept that Mr. Elie’s transparent lies were not inconsistent Mr. Alawiye’s evidence in this court.

41The problem is that I do not accept Mr. Alawiye’s evidence. It is true that he was candid about his own behaviour as a gun-toting hoodlum. That said, Mr. Alawiye is an unsavoury character whose evidence must be approached with a great deal of caution, as Mr. Mergler, again, very candidly admitted.

42More concretely, Mr. Alawiye’s explanations are not logical. It makes no sense that Mr. Alawiye had no fear of walking around in public with his gun despite the prospect of random police searches, but a fear of getting into a taxi. I do not accept his explanation that he has had friends who have been pulled over while in taxis, while he has never been randomly stopped and searched by the police while walking. He described the special precautions he took while driving with PuffPuff to secrete his weapon in PuffPuff’s car. And yet he did not feel any need to take special precautions when walking around carrying his gun. Crown counsel put all of those internal contradictions to him in cross-examination. None of his answers were helpful.

43As well, Mr. Alawiye’s evidence is also inconsistent with the extrinsic evidence. Mr. Alawiye testified that he made arrangements to meet Mr. Elie at Kennedy station during the morning of July 13 2013. Mr. Elie was arrested at about 3 pm. While that error could have been a simple mistake under other circumstances, in this case it has significance. Mr. Elie was presumably anxious to get rid of the firearm. He would have wanted to meet Mr. Alawiye as soon as possible and as early in the day as he could. And yet, at 3 pm he was getting on, and then getting off a TTC bus.

44Mr. Alawiye also testified that he never took public transit. He either took taxis or drove. And yet he made arrangements to meet Mr. Elie at the Kennedy TTC station.

45Finally, it is an accepted fact that the police had Mr. Elie under surveillance on July 13 2013. He was arrested when he got off a TTC bus after going only one stop. If he was, as Mr. Alawiye testified, heading to a meeting to get rid of the firearm, why did he not go there directly? Why did he get off the bus, only to be arrested by police officers who had him under surveillance?

46Thus, despite Mr. Mergler’s able submissions I do not accept the submission that Mr. Elie’s possession of the weapon was only fleeting or unintentional. It is, therefore, not a mitigating factor.

47I turn to the other mitigating and aggravating factors.

48It is obviously extremely aggravating that Mr. Elie was carrying a handgun on a TTC bus. The gun had an over-capacity magazine. There was a round in the chamber and it was ready to fire. As I have already noted, that created a situation of extreme danger. Furthermore, it is aggravating, in a very tragic way, that Mr. Elie had only been out of prison for about four months when he committed this offence.

49The most important mitigating factors are Mr. Elie’s youth, his plea of guilty, the support that he appears to enjoy from his family and the fact that he has done well in an institutional setting. I was very moved to read his heartfelt letter expressing his hatred of jail, and his remorse. I also read the heartfelt letter written by Ms. Cummings. It is obvious that Ms. Cummings and their son is the one truly bright spot in Mr. Elie’s life. That also stands out in his favour, and is part of what makes this case so tragic.

7. Principles of Sentencing

50The key purposes and principles of sentencing are set out in s. 718 and s. 718.1 of the Criminal Code. I do not need to advert to all of them, but in a case like this the principles of general and specific deterrence are paramount. This Court has a responsibility to protect the public from those who think that it is acceptable to possess an illegal firearm. The possession of illegal dangerous firearms must be deterred. These weapons have only one purpose in the wrong hands, and that purpose is to kill human beings. Nobody goes deer hunting with a handgun. Farmers don’t shoot gophers with handguns. Specific deterrence must also play an important role, given Mr. Elie’s unfortunate tendency to possess these weapons.

51Although the principles of general and specific deterrence play the most important role, it cannot be ignored that Mr. Elie is a very young man and will still be a very young man when he is released from custody. He will still have time to turn his life around. Thus, the principle of rehabilitation must also play a role in the sentencing process, albeit a diminished role.

8. Ancillary Orders

52Although Mr. Elie was on a weapons prohibition, he will be placed on another one. He will be on a lifetime weapons prohibition pursuant to s. 109(3) of the Criminal Code. As well, Mr. Elie will also provide a sample of his DNA.

9. Final Decision

53This case has, as I keep saying, a tragic element. Mr. Elie had only been released into the community for a matter of months before he was arrested on the current charges. Thus, he has been in custody since October 2 2009 almost continuously, aside from a short break of four months. That amounts to something around five of his 22 years in jail. He now has a young son. This is what makes this case almost unbearably tragic.

54I do want to make another point. The courts constantly hear from individuals that they need to carry a firearm to protect themselves. This is exactly what I heard from Mustapha Alawiye. Mr. Alawiye said that he takes his gun, or his strap as he called it, everywhere. When someone like Mr. Alawiye says he needs a gun for protection, he has it completely backwards. He doesn’t need protection. The rest of us need protection from him, and from others who are like-minded. It is not the gun alone that is dangerous, it is the attitude. That is why general deterrence must play such an important role in sentencing an offender. Mr. Alawiye’s evidence provides an illustration. He appears to be a hardened, unrepentant criminal. He obviously understands the cost of doing criminal business. And yet, it is clear that he takes very serious steps to prevent the police from catching him with an illegal firearm, although he is clearly prepared to carry out other risky criminal ventures, such as armed robberies. Thus, I can only infer that he knows that possessing an illegal firearm will carry a significant sentence. In a sense, Mr. Alawiye’s actions demonstrate general deterrence in action.

55Having said all that, however, I am obviously not sentencing Mr. Elie for Mr. Alawiye’s attitude.

56In my view, even if Mr. Mergler had been able to demonstrate on a balance of probabilities that Mr. Elie’s possession of the firearm was merely fleeting and unintentional, it would not have significantly affected the range of sentence in the circumstances of this case. The key feature of the crime in this case is not how Mr. Elie came into possession, but rather what he was doing when he was arrested. It does not matter whether or not Mr. Alawiye stashed the gun with Mr. Elie, or whether Mr. Elie purchased the gun from some unidentified individual that morning, or whether, as is likely, there is another explanation. The plain fact is that he was out in public with the gun. He was not carrying it in a bag or a knapsack but in a home-made holster that gave him ready access to it. He was not transporting it in a private car or even keeping it in a secret place in his apartment. He was travelling on a TTC bus in public, with his pregnant girlfriend. He created a situation of extreme danger for him, his girlfriend, his unborn child, and all of the innocent bystanders in that bus.

57I take all of these factors into account, including the principles of denunciation, deterrence, and rehabilitation. I take into account the letter written by Ms. Cummings expressing support for Mr. Elie. It is so unfortunate to have to sentence Mr. Elie to a lengthy period of custody, but at a certain point the Court’s responsibility to protect the public must carry greater weight. In all the circumstances, in my view a 5 ½ year sentence is appropriate, with credit for time served. That reflects the severity of the behaviour, but also takes into account the mitigating circumstances.

58Mr. Elie has served, since July 11 2013, a total of 552 days in custody. At the enhanced credit of 1.5:1, that translates into 828 days or 2 years and three months. The credit will be applied concurrently to Counts 1, 2, and 4. Accordingly, Mr. Elie will serve another three years and 3 months. The sentence will be apportioned as follows:

• Count 1 (being the occupant of motor vehicle knowing that a firearm was present contrary to s. 94(1) of the Criminal Code), 2 years, concurrent to Count 2. With credit for 2 years and 3 months, that is the equivalent of a sentence of 4 years and three months;

• Count 2 (possession of a loaded, prohibited firearm while not being the holder of an authorization or licence contrary to s. 95(1) of the Criminal Code), 2 years and 9 months. With credit for 2 years and 3 months, that is the equivalent of a sentence of 5 years;

• Count 4 (possession of a firearm knowing he was not the holder of a licence contrary to s. 92(1) of the Criminal Code), two years concurrent to Count 2. With credit for 2 years and three months, that is the equivalent of a sentence of 4 years and three months; and,

• Count 8 (possession of a firearm while under a weapons prohibition contrary to s. 117.01(1) of the Criminal Code), 6 months consecutive to Count 2.

R.F. Goldstein J.