Court File and Parties

COURT FILE NO.: CR-14-10000673-0000 DATE: 20170331 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DINISH BARNES Accused

Counsel: Emily Morrocco, for the Crown Brian Crothers, for the Accused

HEARD: February 3, 2017

B.A. ALLEN J.

REASONS FOR DECISION ON SENTENCING

BACKGROUND

[1] The accused was charged under the Criminal Code on October 5, 2013 pursuant to section 92 on two counts of possession of a firearm and under sections 113 and 109 on three counts of possession of a firearm while prohibited.

[2] The police executed a search warrant at 4:00 a.m. on a basement apartment occupied by Mr. Barnes. Before the search the police had stopped Mr. Barnes in his vehicle, searched him and obtained a key to his apartment and to a safe inside the apartment. Inside the safe the police found a Glock handgun that fires 45-calibre bullets, five being found in a magazine. They also retrieved another 24 rounds of 45-calibre bullets, three rounds of 380 bullets and a round of Auto ammunition. Mr. Barnes was arrested.

[3] At the time of the arrest, Mr. Barnes was subject to three Criminal Code prohibition orders that on the whole prohibited him for life from possessing a weapon and ammunition, two for which he pleaded guilty. Two were s. 109 prohibitions, one from a conviction on December 23, 2005 and the other from a conviction on June 22, 2006. The third prohibition was imposed under s. 113 and arose from a conviction on October 5, 2005. He also had an outstanding matter from 2005 that is before the Ontario Court of Justice at Finch Avenue.

[4] Mr. Barnes was detained on the charges before the court on October 5, 2013 and was released under house arrest on October 11, 2013.

Mr. Barnes’ Criminal Record

[5] Mr. Barnes, who is currently 32 years of age, has a lengthy criminal record dating back to 2005 during his teenage years. Over the years there have been numerous convictions for failure to comply with court orders including firearm prohibitions. He has convictions from 2006 and 2007 for possession of a controlled substance.

[6] The most serious conviction, imposed in June 2006, was for robbery and forcible confinement that occurred in 2004 in the context of a home invasion. Mr. Barnes was sentenced to 41 months in a penitentiary with credit for pre-trial custody. He was released in December 2008 under community supervision for a period of 13 months. Mr. Barnes’ federal parole officer found him to be an amenable person but lacking insight into his offences. His parole officer described him as more of a follower than a leader. The author of the Pre-Sentence Report prepared for the charges before the court also found him polite and respectful but guarded about his charges.

Mr. Barnes’ Life

[7] The Pre-Sentence Report dated January 26, 2017 was made an exhibit. Mr. Barnes, his mother, Mr. Barnes’ spouse and the Toronto police officer in charge of the investigation were interviewed. Ministry of Education records, Mr. Barnes’ federal parole records and his CPIC records were referenced.

[8] Mr. Barnes was born in Jamaica and came to Canada with his mother when he was very young. He has had no contact with his father. His mother married a man who was abusive to her and Mr. Barnes. The mother eventually called the police and the step - father was charged. The marriage ended when Mr. Barnes was 16 years of age. The mother indicated that Mr. Barnes’ behaviour began to be challenging after the marriage break-up. He became disrespectful and verbally abusive towards his mother.

[9] Records show that he was diagnosed with attention deficit disorder. He did not complete secondary school. He lacks experience with long-term full-time employment. He did not succeed in gaining admission to two colleges where he had applied. Jobs that he did obtain were interrupted by court matters. He did a course in music management that gave him the background to start his own disc jockey business 2 1 ⁄ 2 years ago. This was disrupted by his house arrest.

[10] Mr. Barnes has two children with his current spouse, a 14-month old son and a one month old daughter. He also has two children from two previous relationships with whom he does not have contact. Mr. Barnes was under house arrest with his mother after his release. During this period he had constant contact with his spouse with whom he eventually lived together with his mother and his spouse’s daughter from a previous relationship.

[11] Mr. Barnes expects, with the serious charges he is facing, to receive a custodial sentence. He indicated that when he is released he will move in with his spouse who now lives in a home close to his mother. The mother and the spouse have a positive relationship. His spouse now receives social assistance and intends to complete a culinary arts program she had started earlier. Mr. Barnes previously worked at a restaurant doing cleaning on weekends and indicated that he could return to that job.

[12] There does not seem to be any serious substance abuse problems. Mr. Barnes indicated he smokes marijuana and drinks alcohol only occasionally.

[13] Mr. Barnes has strong family support but a tenuous connection to the employment world.

[14] Mr. Barnes advised that when released from federal custody he would make positive changes in his life for the sake of his son by staying away from his negative peers. The author of the report made some remarks in this regard saying that Mr. Barnes contradicted his intention to live a pro-social life because when he was arrested in his vehicle on the charges before the court, he was in the company of a person who was on house arrest for serious crimes. I reject that conclusion by the author for the reason defence counsel suggested I should. There is no evidence that Mr. Barnes was aware the person he was with was on house arrest for serious crimes.

[15] I will not use the author’s remark against Mr. Barnes. With the agreement of counsel, I also redacted the last paragraph on page 7 of the report for the reason it also contains prejudicial and unsubstantiated claims by its author.

PRINCIPLES ON SENTENCING

[16] Section 718 of the Criminal Code sets down the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.

[17] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.

[18] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: Criminal Code, s. 718.1 and R. v. Hamilton (2004).

[19] The parity principle requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences might not be identical: R. v. Cox, 2011 ONCA 58 and R. v. L.M., [2008] 2 S.C.R. 163, 2008 SCC 31.

[20] Section 718.2 addresses the totality principle and provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle applies with a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not overly excessive.

[21] The Court of Appeal has emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related offences. As the Ontario Court of Appeal emphasized, “…our courts have to address the principles of denunciation and deterrence for gun-related crimes in the strongest terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed”: R. v. Danvers, [2005] O.J. 3532, at para. 78, (Ont. C.A.).

AGGRAVATING AND MITIGATING FACTORS

[22] Section 718.2 (a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating and mitigating circumstances.

The Aggravating Factors

[23] The aggravating factors I considered are as follows:

• Mr. Barnes has a serious and lengthy criminal record spanning from convictions in 2005 for violations of firearm prohibition orders and possession of drugs and a conviction in 2006 for forcible confinement and robbery.
• Mr. Barnes was sentenced to 41 months incarceration in a federal prison for 2004 offences for which he was sentenced in 2006. He spent over two years in custody and 13 months on parole after release. His federal sentence expired on November 29, 2009. His experience with imprisonment did not deter him from further criminal activity nearly four years later.
• His current charges are very serious. He breached firearm prohibitions for having a powerful Glock handgun loaded with 45-calibre bullets in his possession. This is aggravated by his possession of additional 45-calibre bullets and bullets compatible with other types of firearms.
• He has a history of disrespect for court orders having violated several firearm prohibitions.
• He breached bail in relation to the charges before the court when he failed to attend a court date and absconded for about 6 months until the police located him during a traffic stop.
• He lacks a solid employment background and education, having left secondary school in his teens before graduating. He has not undertaken training to obtain a marketable skill.

The Mitigating Factors

• Mr. Barnes has a close relationship with his mother and his spouse. His mother is a good role model in that she has a professional career as a nurse and has been very caring and supportive of her son.
• He is described as polite and cooperative by his parole officer and the author of the Pre-Sentence Report.
• He had no prior convictions for firearm offences. There is no evidence before me that the 2004 robbery was committed with a firearm.
• He was in compliance with the bail conditions on his current charges for about two years until he absconded.
• His spouse has a home for him when he is released that is near his mother’s residence where the spouse, their two young children and her daughter reside.
• He has learning deficits. He attempted to obtain further education by applying at two colleges but he did not meet the admission requirements.
• He spoke to the court and addressed his mother and aunt who were in the body of the court and expressed what appeared to be genuine remorse as he cried and apologized to his family for his thoughtless criminal conduct.

CASE AUTHORITIES

[24] The Crown presented the following case authorities in support of its position that Mr. Barnes should be sentenced to a global penitentiary sentence of 6 years.

• R. v. Hector, [2014] O.J. No. 1617 (Ont. S.C.J.) – offender, age 29, convicted of several weapons offences; lengthy related criminal record; offences committed while on bail or probation; at the time subject to three s. 109 prohibition orders; sentenced to global 6 years with credit for 2 years’ pre-trial custody.
• R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (Ont. C.A.) – a young offender; convicted on several firearm charges; discarded gun in a public area and fled police; no criminal record; offender engaged in commercial drug trafficking; sentenced to 43 months’ federal imprisonment.
• R. v. Mullings, [2013] O.J. No. 4522 (Ont. S.C.J.) – offender, age 27, convicted of possession of a loaded firearm with an over-capacity magazine and possession of ammunition; lengthy related criminal record; at the time, offender in breach of 2 court orders; found in possession of commercial level drugs and cash; sentenced to 6 years and 10 1 ⁄ 2 months’ federal imprisonment after deduction for time served.
• R. v. Ferrigon, [2007] O.J. No. 1883 (Ont. S.C.J.) – offender, age 25, in breach of firearm prohibition orders; had criminal record on same offences; no remorse shown; sentenced to 6 1 ⁄ 2 years; consecutive sentence for breach of prohibition orders.
• R. v. Manning, [2007] O.J. No. 1205 (Ont. S.C.J.) – offender, lengthy criminal record; guilty plea to 7 firearm offences; took loaded firearm into residential area while on a firearm prohibition; sentence 6 years less 28 months for pre-trial custody; consecutive sentence for violation of prohibition order.

[25] The defence submitted the following cases in support of a 2 1 ⁄ 2 to 3-year sentence:

• R. v. Adan, [2016] O.J. No. 5562 (Ont. S.C.J.) – offender, age 29, subject to a firearm prohibition; pleaded guilty to firearm offence; showed remorse; had previous criminal record; offender and another male were in vehicle; shot and wounded by occupant in passing vehicle; offender summoned police; offender tossed his gun and the police found it nearby; sentenced to 21 months’ imprisonment and 2 years’ probation; with credit for 21-day pre-trial custody; offender served only 1 day in prison.
• R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370 (Ont. S.C.J.) – offender, served 26 ¼ months’ pre-trial custody; prior criminal record; convicted of firearm offences and a firearm prohibition; offender an abused child, troubled family background; pleaded guilty; sentenced to global sentence of 3 1 ⁄ 2 years’ imprisonment for firearm offence and a consecutive 6 months for firearm prohibition plus 2 years’ probation, with credit for time served; actual prison term was 15 ¾ months.
• R. v. Thomas, [2014] O.J. No. 5975 (Ont. S.C.J.) – offender, age 33, convicted of firearm offences; search warrant executed on offender’s apartment; police seized loaded firearm and ammunition; youth criminal record; over 14-year gap between previous convictions and the ones before the court; 38 days’ pre-trial custody, given 57 days’ credit; sentenced to 3 years for possession of loaded firearm not counting pre-trial credit.

PRE-TRIAL TIME

The Law

[26] The statutory scheme for granting credit for pre-sentence detention is found in s. 719(3) of the Criminal Code. This section provides that “a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.”

[27] Section 719(3.1) provides the possibility for enhanced credit. It allows for a maximum of 1.5 days’ credit for each day spent in pre-trial custody “if the circumstances justify it”. The reason for allowing enhanced credit is the recognition that the conditions in pre-trial detention are frequently exceptionally harsh. This has been acknowledged by the Supreme Court of Canada: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575(S.C.C.).

[28] Mr. Barnes therefore can be considered on a 1.5:1 basis for a reduction of the sentence for his time served in pre-trial custody. Mr. Barnes’ circumstances on bail and detention after arrest on the October 5, 2013 are complicated by arrests, detentions and releases on other charges. The parties disagree on how pre-trial time served on the October 5, 2013 charges should be calculated in these circumstances.

Mr. Barnes’ Circumstances

[29] The following briefly summarizes the circumstances following his October 5, 2013 arrest:

• arrested October 5, 2013 (the “October 5, 2013 charges”) and in custody until October 11, 2013; entitled to 1:5 credit for pre-trial time (7 days).
• on September 4, 2014 arrested in Peel (the “Peel charges”) on old sexual offences; denied bail on September 11, 2014; also denied bail on bail review on December 5, 2014; charges withdrawn on February 18, 2015 (total detention on Peel charges = 5 1 ⁄ 2 months or 168 days).
• Finch court sexual offences (the “Finch charges”) were outstanding at the time of the October 5, 2013 charges; turned himself in on these charges on July 22, 2015; denied bail; released on bail September 2, 2015 on consent of Crown (time served on Finch charges from July 22, 2015 to September 2, 2015 = 42 days).
• failed to attend trial readiness date (trial date March 2016) on January 12, 2016 for October 5, 2013 charges and bench warrant issued; on July 16, 2016 he was found on traffic stop and placed in custody where he remains until the present.
• August 10, 2016 his bail on October 5, 2013 charges was cancelled under s. 524(8) for the failure to attend court, 200 days (201 days).
• October 20, 2016 pleaded guilty to October 5, 2013 charges.
• September 12, 2016 pleads guilty to London charges (the “London charges”); sentenced to 60 days’ time-served (July 16, 2016 to September 12, 2016 = 59 days (60days)).
• in custody since July 16, 2016 on October 5, 2013 charges; sentencing set for March 31, 2017.

The Parties’ Positions

[30] The parties disagree on if and how time served in custody for the Peel, Finch and London charges should be handled.

[31] The Crown takes the position that no credit should be given for pre-trial detention on any of the other charges.

[32] It is the Crown’s view with respect to the Finch and Peel charges that Mr. Barnes should not be permitted to bank time served on those charges for credit to reduce sentence on the October 5, 2013 charges.

[33] On the London charges the Crown points out that on Mr. Barnes’ guilty plea he was sentenced to the 59 days’ real time that he had served pre-trial. The Crown submits the 59 days have already been consumed and cannot be double-counted for credit on sentence on the October 5, 2013 charges.

[34] The defence has the view that the pre-trial time served on the Finch and Peel charges can be banked where the reason for detention has a connection to the October 5, 2013 charges on the argument that bail was likely denied due to the October 5, 2013 charges. Regarding the London charges, the defence submits only 40 days of the 59 days would be consumed due to entitlement to remission on sentence for statutory early release.

[35] The parties agree that Mr. Barnes is entitled to credit of 11 days for the 7 days pre-trial custody served on the charges before the court. The parties also agree that under s. 719(3.1) of the Criminal Code Mr. Barnes can only be considered for 1:1 credit for time in custody from September 13, 2016 to March 31, 2017.

The Parties’ Calculations

[36] In its calculation the Crown took into account that Mr. Barnes was arrested on July 16, 2016 in relation to the charges before the court and that bail was cancelled on August 10, 2016. From that date Mr. Barnes was in custody on the charges before the court. The Crown also took into account the plea on September 12, 2016 to the London charges. In the Crown’s view, the 59-day sentence on the pre-trial time served on the London charges ought to be deducted from the sentence on the October 5, 2013 charges. The Crown submits therefore that consideration for credit should start on September 13, 2016.

[37] Mr. Barnes will serve 200 real days from September 13, 2016 to March 31, 2017. In the Crown’s view, Mr. Barnes should be given credit at 1:1 for the 200 days, plus the 11 days credit for the 7 days served after his arrest on the October 5, 2013 charges, totaling 211 days’ (212 days’) pre-trial credit.

[38] The defence’s view is that after the initial post-arrest detention on the October 5, 2013 charges, credit should be considered from September 4, 2014. The defence submits, on its view that the pre-trial time served on the Peel and Finch charges should be credited, that the 5 ½ months 168 days on the Peel charges served from September 4, 2014 to February 18, 2015 should be credited at 1:1 and the 42 days served on the Finch charges from July 22, 2015 to September 2, 2015 should be credited at 1:1.

[39] Regarding the period from July 16, 2016 to March 31, 2017 when Mr. Barnes was detained on the charges before the court, the defence submits Mr. Barnes should be credited for 259 days at 1:1. The 40 days consumed on the London charges should be deducted and, after adding the 11 days for the initial detention, the defence submits, Mr. Barnes is entitled to 230 days’ pre-trial credit.

Conclusion on Credit for Time Served

The Case Law

[40] For its argument that the defence is not permitted to bank pre-trial time on other charges, the Crown relies on two Court of Appeal cases.

[41] The Ontario Court of Appeal observed that allowing credit for pre-trial custody for unrelated charges would permit an accused to “bank” time spent in custody to be used in later sentencing.

[42] In R. v. Wilson the accused was charged and convicted on robbery charges and later convicted on drug charges. On sentencing for the robbery conviction the defence sought full credit for the pre-trial days served on the drug charges. The defence took the view that the period of pre-trial custody on the drug charges should be attributed to sentencing on the robbery charges. The court in R. v. Wilson observed:

But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction.

R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285, at para. 45, (Ont. C.A.)

[43] This was not to say that pre-trial time in custody on unrelated charges should not be considered at all. The Court in Wilson held that under the appropriate situation credit can be allowed as a mitigating factor on sentencing on the charges before the court for circumstances related to pre-sentence custody on other charges. The court added however that a deduction from sentence is not automatic. It must be determined in the totality of the circumstances. The court held: “a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender”: R. v. Wilson, at paras. 27, 29 and 46.

[44] In the case at hand Mr. Barnes was out on bail when he was arrested on the Peel charges. He attended trial on the Peel charges and the charges were withdrawn at trial.

[45] In support of its position that Mr. Barnes should receive credit for pre-trial time served on the Peel and Finch charges, the defence relies on two earlier Court of Appeal cases. Those cases allowed credit for pre-trial time served on subsequent charges that were withdrawn: R. v. Reid and R. v. Tsai (2005), 198 C.C.C. (3d) 533 (Ont. C.A.).

[46] In R. v. Reid the accused was refused bail on a second set of charges while he was on bail on a first set of charges. No application was made under s. 524(8) to revoke bail on the first charges. During his time in pre-trial detention on the second charges he was convicted on the first charges. The second charges were subsequently withdrawn. The appeal court gave the offender credit on sentencing on the first charges for the 6 months he served on the second set of charges.

[47] In R. v. Tsai the accused was released on bail on drug charges and was later found guilty on those charges. He was subsequently charged on other unrelated matters. He was denied bail on the second charges. An application was made under s. 524(8) of the Criminal Code to revoke bail on the first charges but the trial judge did not address the application. He served 2 months’ pre-trial time on the second charges. During pre-trial detention on the second charges he was convicted on the first charges. The second charges were later withdrawn. On appeal from sentence on the first charges the court allowed the offender credit for the 2 months spent in custody on the second charges. The trial judge’s failure to consider the s. 524(8) application seems to have been a factor in that decision. The court in Tsai relied on Reid.

[48] R. v. Wilson commented on its two prior decisions:

While both Reid and Tsai appear to be examples of this court permitting the banking of pre-sentence custody, it seems to me that there is another explanation. In both cases the accused was refused bail on the second set of charges (the charges that were later withdrawn) because he was already on bail for the first set of charges. Thus, in part, the time spent in custody for the withdrawn set of charges could be attributed to the first set of offences. In any event, neither Reid nor Tsai represent the stark picture presented in this case where an appellant seeks to have this court retroactively take into account time spent serving sentence on another offence.

R. v. Wilson, at para. 50

[49] A more recent Ontario Court of Appeal case, R. v. Pammett, 2016 ONCA 979, also addresses the issue of whether pre-trial time in custody on a second set of charges can be credited on sentencing on the first charges: R. v. Pammett, 2016 ONCA 979, at para. 20 (Ont. C.A.).

[50] In Pammett the accused was arrested on drug charges in 2010. In 2012 while on bail on the 2010 charges he was arrested on unrelated drug charges. In 2014 he was convicted and brought to sentence on the first drug charges. On sentencing on the first drug charges the offender received 1.5:1 credit for his pre-trial custody on the 2010 charges. Mr. Pammett chose not to bring an application for bail in relation to the 2012 charges. He remained on bail on the 2010 charges since bail was never revoked pursuant to s. 524(8). The sentencing judge refused to allow credit for his pre-trial time served on the 2012 offences while awaiting trial and sentencing on the 2010 charges.

[51] Affirming the trial decision, the Court of Appeal in Pammett relied on the principle enunciated in Wilson and concluded that the fact remained that the offender was not in custody as a result of the 2010 charges while serving pre-trial time on the 2012 charges. The court concluded that no basis existed to credit the time served on the 2012 charges against the sentence for the 2010 charges.

[52] Mr. Barnes was out on bail on the October 5, 2013 charges when on September 4, 2014 he was arrested and jailed on the Peel charges and when on July 22, 2015 he turned himself in on the Finch charges. On the Peel and Finch charges Mr. Barnes was denied bail and Mr. Pammett did not apply for bail. The end result is the same for the two offenders. Both Mr. Pammett and Mr. Barnes were retained in pre-trial custody on their other charges not on the charges before the court.

[53] There is no question that the Peel and Finch charges are not substantively related to the October 5, 2013 charges. However, the defence makes the point that there is a “rational connection” between the pre-trial time served on the Peel and Finch charges and the October 5, 2013 charges – that the October 5, 2013 charges were a factor in the denials of bail on the other charges.

ANALYSIS

The Peel and Finch Charges

[54] The Crown did not apply under s. 524(8) to revoke bail on the October 5, 2013 charges after Mr. Barnes was charged on the Peel and Finch matters. Similar to Wilson and Pammett, Mr. Barnes was still on bail on the October 5, 2013 charges when he was denied bail on the other charges.

[55] In my view, the defence’s argument that the pre-trial custody served on the Peel and Finch charges is related to the October 5, 2013 charges and should be credited cannot stand. As the Crown pointed out there is no evidence before the court as to the reason bail was denied on the Peel and Finch charges. There is only supposition and no evidence of a connection. It is however clear that the other charges are not related factually or temporally to the charges before the court. Like the Court in Pammett, I find no basis to credit the time served on the other charges against the sentence for the charges before the court.

[56] I considered the obligation under s. 718.2(a) to look at time spent serving another sentence as part of the complete picture for understanding a particular offender. Sentencing principles also require under s. 726.1 that I consider any relevant information placed before me including any representations or submissions made by or on behalf of the prosecutor or the offender.

[57] In view of s. 726.1, I thought about whether the 5 1 ⁄ 2 months (168 days) served from September 4, 2014 to February 18, 2015 on the Peel matter and the 42 days from July 22, 2015 to September 2, 2015 served on the Finch matter should have a mitigating influence on the sentence I impose. In looking at the circumstances as a whole, I cannot ignore the fact that Mr. Barnes absconded from the court process for about 6 months, from January 12, 2016 to July 16, 2016, after he failed to appear at a trial readiness date. One can only guess how much longer he might have been at-large had a chance traffic stop by the police not turned him up. He was also in breach of more than one firearm prohibition when he was arrested on October 5, 2013 with a Glock handgun.

[58] This, I find, is not the appropriate case to consider mitigation for the pre-trial time served on the other charges.

The London Charges

[59] As noted above, Mr. Barnes served 59 real days in pre-trial custody on the London charges. He pleaded guilty and was sentenced to the 59 days’ time he served. The defence takes the position only 40 days would be consumed due to remission on sentence.

[60] The Crown’s view is that the 59 days have already been consumed and cannot be double-counted for credit on sentence on the October 5, 2013 charges.

[61] I agree with the Crown’s position. The court sentenced Mr. Barnes to the time he had already served. The 59 days have been consumed and no portion of those days can be applied toward credit for sentence on the October 5, 2013 charges.

Conclusion

[62] I am in agreement with the Crown’s position that for reasons set out above the time served for the October 5, 2013 charges should begin on September 13, 2016. For the 200 days from September 13, 2016 to March 31, 2017 he will receive 1:1 credit under s. 719(3.1). Adding the 11 days pre-trial detention the total time to be credited against sentence is 211 days.

Credit for Restrictive Bail Conditions

[63] Harshness in pre-trial bail conditions is a relevant consideration on sentencing. Defence counsel submits that Mr. Barnes’ conditions under house arrest were restrictive in that he was not permitted exceptions for employment or school. He was dependent on being in the company of his mother at all times and was only entitled to leave the home for medical emergencies and court attendances. For an approximate two-year period Mr. Barnes remained in compliance.

[64] Cases emphasize that bail is not equivalent to pre-trial custody. It is in fact the opposite. Granting credit for pre-trial bail conditions is not an automatic right. It is in the discretion of the sentencing judge: R. v. Downes, (2006), 79 O.R. (3d) 321 (Ont. C.A.). Stringent conditions on bail are only a potential mitigating factor: R. v. Lindsay, 2009 ONCA 532, at para. 45 (Ont. C.A.).

[65] The defence seeks 4 months or 120 days credit for the restrictive bail conditions.

[66] The Crown disagrees that credit should be allowed. The Crown again points to 6-month flight from the criminal justice system.

[67] I will not allow credit for pre-trial bail conditions.

[68] I took into account his period of compliance. However, I balanced that against Mr. Barnes’ flagrant disregard for the criminal justice process and previous orders of the court. I find this makes Mr. Barnes an unsuitable candidate for an exercise of my discretion in his favour. He will receive no credit for his bail conditions.

DISPOSITION

[69] The parties agree that the sentence for the firearm prohibitions should run consecutively to the sentence on the two firearm offences.

[70] The Crown seeks a global sentence of 6 years: 5 years for each of the firearm offences to run concurrently and 1 year for each of the breaches of the firearm prohibitions to run concurrently with each other and consecutive to the firearm sentences. The Crown also seeks a s.109 firearm prohibition for life, a DNA order, and a forfeiture order for the firearm and ammunition.

[71] The defence seeks a global sentence of 2 1 ⁄ 2 to 3 years: 2 1 ⁄ 2 years on the two firearm charges to run concurrently and 6 months for each firearm prohibition charge to run concurrently with each other and consecutive to the firearms sentences. The defence did not oppose the ancillary orders requested by the Crown.

[72] I find on the facts of the case before me and the case authorities I considered, that a global sentence of 6 years’ imprisonment is a fit sentence. A sentence of 2 1 ⁄ 2 to 3 years would not recognize the seriousness of the offences and Mr. Barnes’ criminal background. He shall serve 5 years for each of the firearm offences to run concurrently and 1 year for each of the breaches of firearm prohibitions to run concurrently with each other and consecutive to the firearm sentences.

[73] Mr. Barnes is entitled to 211 days credit against the global six-month sentence. His total sentence taking pre-trial credit into account is 5 years, 5 months (6 years = 2190 days; 2190 days – 211 days = 1979 days; 1979 days = 5.4 years = 5 years, 5 months).

[74] I also make the ancillary orders requested by the Crown.

SENTENCE

[75] I will now pronounce sentence. Dinish Barnes, will you please stand?

[76] You have been convicted on 2 counts on firearm offences (counts 1 and 2).

[77] I sentence you to 5 years’ imprisonment in a penitentiary for each of the firearm offences to run concurrently. Your total sentence for the firearm offences is five years’ imprisonment.

[78] You have been convicted on 3 counts of breach of firearms prohibitions (counts 3, 4 and 5).

[79] I sentence you to 1 year for each of the firearm prohibition offences to run concurrently with each other and consecutive to the sentences on the firearm offences.

[80] Your total sentence on all 5 counts is therefore 6 years in prison.

[81] You shall have credit for 212 days’ pre-trial custody. Therefore your actual sentence is 5 years and 5 months’ imprisonment.

[82] In addition, there shall be the following ancillary orders: (a) a Criminal Code s. 487.051 order to provide a DNA sample. (b) a Criminal Code s. 109 weapon prohibition for life to commence after release from prison. (c) a Criminal Code, s 734 forfeiture order to forfeit the firearm and ammunition.

B.A. ALLEN J. Released: March 31, 2017