CITATION: R. v. Oppong, 2017 ONSC 6684 COURT FILE NO.: CR-16-50000291-0000 DATE: 2017-11-06

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DEREK OPPONG, AKIDO THOMAS, AND RAHEEM THOMAS-STEWART

Counsel: Paul Zambonini, for the Crown Talman Rodocker, for Derek Oppong Neil Singh, for Akido Thomas William Jaksa, for Raheem Thomas-Stewart

HEARD: October 13, 2017

R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

1. Overview

[1] Derek Oppong, Akido Thomas, and Raheem Thomas-Stewart kidnapped Dontay Haye. The three accused men were either members of or associated with IDS, a street gang. Mr. Haye was also a gang member. He allegedly broke the rules of the gang by stealing a firearm. A jury convicted all three men of committing a series of kidnapping-related offences with a firearm at the direction or for the benefit of a criminal organization. They now come before me for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] On May 19, 2015 Dontay Haye took the bus to the Jamestown area of Toronto. He encountered his friend Nathan Lee. Mr. Lee warned him that other people were looking for him as they believed he had stolen a gun. Mr. Haye then encountered two people named Dopeys and AK at Jamestown Cresc. Mr. Haye did not know Dopeys or AK’s real names but he knew them to be members of IDS. “Dopeys” is the street name of Raheem Thomas-Stewart. AK is the street name of Akido Thomas.

[3] Thomas-Stewart and Mr. Thomas started beating Mr. Haye. Mr. Thomas-Stewart threatened to “put two into him” if he didn’t go with them. It is an implication of the jury’s verdict that this statement was a death threat. Mr. Haye testified that Mr. Thomas had a .40 handgun with a silencer. It is also an obvious implication of the jury’s verdict that they accepted Mr. Haye’s evidence on that point. I therefore find that Mr. Thomas had possession of a gun. Mr. Haye also testified that Mr. Thomas said “I could fly you right now”. Mr. Haye testified that he interpreted that statement as being a threat to shoot him. That is also an obvious implication of the jury’s verdict. Mr. Thomas-Stewart and Mr. Thomas kept asking him where the gun was.

[4] Mr. Haye testified that Dopeys and AK (Mr. Thomas-Stewart and Mr. Thomas) took him to John Garland Blvd. There they met up with “Bigga”. Bigga is Mr. Oppong’s street name. Bigga started gun butting him in the face. His gun was in a pouch or holster of some kind. He believed the gun was a silver and black Ruger semi-automatic pistol. Bigga was also asking him where the gun was. He kept saying that he did not have it and they were looking for the wrong person. Bigga told him to “get into the whip”. A whip is a car. Mr. Haye testified that when Bigga drove him from John Garland Blvd. to the Jamestown housing complex he told him that he could either bring back the gun or gave him $2500. If he did not bring back the gun or pay $2500 then he would be “getting flipped.” According to Mr. Haye, getting flipped means getting killed. Mr. Haye did not testify that AK and Dopeys (Mr. Thomas and Mr. Thomas-Stewart) were part of this conversation. It is implicit in the jury’s verdict, however, that Mr. Thomas and Mr. Thomas-Stewart were parties to extortion with a firearm in association with or for the benefit of a criminal organization.

[5] Mr. Oppong and Mr. Thomas admitted through their counsel to being members of IDS. Mr. Thomas-Stewart did not make that admission. It is an express element of the jury’s verdict, however, that they found that Mr. Thomas-Stewart committed offences in association with, or for the benefit of a street gang. The same thing is obvious in the jury’s verdict relating to Mr. Oppong and Mr. Thomas.

(b) Circumstances of the offender – Derek Oppong

[6] The jury convicted Mr. Oppong of the following offences:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code);

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code);

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code);

• Count 6: Assault with a weapon (a handgun) for the benefit of or in association with a criminal organization (s. 367(a) and s. 467.12(1) of the Criminal Code);

• Count 7: Possession of a firearm knowing he was not the holder of a license or registration certificate (s. 92(3) of the Criminal Code).

[7] Mr. Haye testified that his friend A.R. showed up as he and Mr. Oppong (Bigga) walked towards Jamestown Crescent. He said that he was begging and pleading with Bigga not to shoot him but that Bigga simply told him to shut up and that he didn’t care. A.R. had a gun, which Mr. Haye believed was the firearm with a suppressor that Mr. Thomas (AK) had earlier had in his possession. Bigga then told him it was his last chance. Mr. Haye then started to run away. They were in the field at Masseygrove Park. Bigga grabbed him and he lost his shirt and his hoodie. It was then that Bigga told A.R. “yo, yo, shoot shoot shoot”. A.R. did not and Mr. Haye got away. That was the gravamen of the attempted murder count (Count 8). The jury acquitted Mr. Oppong of attempted murder. I am aware that A.R. was acquitted of attempted murder in a separate trial. It is not clear from the jury’s verdict whether they were not satisfied beyond a reasonable doubt whether Mr. Oppong told A.R. to shoot Mr. Haye, or that he did not have the intention to commit murder, that the words “shoot him” only conveyed an intention to harm and not the specific intention to kill, or that he simply wanted to scare Mr. Haye.

[8] I agree with Mr. Rodocker that I cannot treat what happened in the park as an aggravating factor. I do not need to determine why the jury acquitted Mr. Oppong of attempted murder. Different jurors may have come to different conclusions – they need only have agreed on the verdict.

[9] I do find, however, that Mr. Oppong did tell A.R. to “shoot him”. Merely uttering the words, however, is not the same as having the specific intention to commit murder and I do not make such a finding. I do not draw the inference that Mr. Oppong uttered those words with the intention of killing Mr. Haye. That would obviously be contrary to the jury’s verdict. I make this finding only for the limited purpose of finding that Mr. Oppong took the lead role in the kidnapping. That is consistent with Mr. Haye’s testimony that Mr. Oppong took a leadership role in IDS.

[10] In addition to these offences, Mr. Oppong was found guilty of breaching a weapons prohibition order. That offence was on a severed indictment and not before the jury. By agreement, Mr. Oppong agreed to be bound by the jury’s verdict without the necessity of another trial.

[11] Mr. Oppong is currently 24 years old. He was raised under difficult circumstances. He did not have the support and guidance of a father. That said, he has family support. His mother provided a letter to the court. She speaks of his good character, his willingness to help others, and his helpfulness to her.

[12] Mr. Oppong has accumulated a significant criminal record for such a young man. He was convicted of youth offences in 2009 and 2010 including robbery, assault, and fail to comply with a recognizance. In 2013 he was convicted of threatening death for which he received a suspended sentence and probation in addition to 31 days of pre-sentence custody. He admitted, through counsel, to being a member of a street gang. Even in the absence of that admission Sgt Nasser’s evidence on the point was persuasive.

[13] On July 17, 2017, shortly after the jury trial in this matter, Mr. Oppong was convicted of possession of a prohibited or restricted weapon. He pleaded guilty. Crown counsel filed a transcript of the sentencing hearing. Mr. Oppong was present at a shooting at a nightclub in Newmarket on May 2, 2015, just 17 days before the kidnapping. When shots were fired at the nightclub he jumped up, took a gun out, and ran to the back of the club with it. The Crown did not allege at the sentencing hearing that he was the shooter. The transcript reflects that Mr. Oppong apologized to the court for his actions and said that he would try not to take the same action again. He was sentenced to three years.

(c) Circumstances of the offender – Akido Thomas

[14] The jury convicted Mr. Thomas of the following offences:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code);

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code);

• Count 3: Assault for the benefit of or in association with a criminal organization (s. 266(a) and s. 467.12(1) of the Criminal Code);

• Count 4: Uttering a death threat for the benefit of or in association with a criminal organization (s. 264.1(2)(a) and s. 467.12(1) of the Criminal Code);

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code);

• Count 7: Possession of a firearm knowing he was not the holder of a license or registration certificate (s. 92(3) of the Criminal Code).

[15] Like Mr. Oppong, in addition to these offences, Mr. Thomas was found guilty of breaching a weapons prohibition order. That offence was also on a severed indictment and not before the jury. By the same agreement, Mr. Thomas agreed to be bound by the jury’s verdict without the necessity of another trial.

[16] Mr. Thomas is 26 years old. He came to Canada from Granada when he was 10 years old. He was raised by his mother alone and has never known his father. Mr. Singh, who has acted for Mr. Thomas for many years and knows him well, indicated that he was working in construction in 2014 when his girlfriend suffered a miscarriage. That miscarriage, he says, led to the breakdown of his relationship as well as depression and poor choices in peers. He has apparently taken courses while in custody and is ready to write his GED, but the situation in jail has prevented that.

[17] Mr. Thomas has a criminal record. He has youth convictions that include robbery, assault, and assaulting a peace officer. As an adult he has accumulated convictions for fail to appear and bail violations. More seriously, in 2014 he was convicted of trafficking in a schedule I substance. He received a sentence of 90 days in addition to 50 days of pre-sentence custody. Like Mr. Oppong, he admitted, through counsel, to being a member of a street gang.

[18] As a permanent resident, Mr. Thomas will undoubtedly be deported, as Mr. Singh points out. He has been convicted of offences for which there is no appeal from a deportation order.

(d) Circumstances of the Offender – Raheem Thomas-Stewart

[19] The jury convicted Mr. Thomas-Stewart of the following offences:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code );

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code);

• Count 3: Assault for the benefit of or in association with a criminal organization (s. 266(a) and s. 467.12(1) of the Criminal Code);

• Count 4: Uttering a death threat for the benefit of or in association with a criminal organization (s. 264.1(2)(a) and s. 467.12(1) of the Criminal Code);

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code).

[20] The jury acquitted Mr. Thomas-Stewart of possession of a firearm knowing he was not the holder of a license or registration certificate (Count 7). Mr. Thomas-Stewart also faced a breach of recognizance charge on the severed indictment that was not before the jury. By agreement he agreed to be bound by the jury’s verdict without the necessity of another trial. Mr. Zambonini, Crown counsel, agreed that he must be found not guilty of that severed offence.

[21] Mr. Thomas-Stewart is 22 years old. He has a youth criminal record from 2010 when he was convicted of two counts of robbery, assault with a weapon, and uttering threats. He received probation. I agree with Mr. Jaksa that the dated nature of his record – showing offences accumulated when he was only 14 or 15 – plays a very limited role in sentencing.

[22] I have reviewed a letter provided by Mr. Thomas-Stewart’s mother. She raised him as a single parent. He also had no contact with his father. She indicates that she supports him, and hopes to play a role in his re-integration into society.

[23] Mr. Thomas-Stewart also had a son at the age of 17. His partner, Ms. Gayle, provided a letter of support on his behalf. She speaks of his good character and his commitment as a father. She also hopes to play an important role in his rehabilitation and re-integration.

[24] Mr. Jaksa indicated that Mr. Thomas-Stewart’s nickname is Dopeys because he did poorly in school. He dropped out and did not finish Grade 9. He was working full-time at the age of 17 at Woodbine Racetrack. Regrettably, he was laid off during Christmas of 2014. Mr. Jaksa says that he is very remorseful. He says that Mr. Thomas-Stewart is particularly upset by the fact that he has not seen his son in three years and lies to him about being at work. Mr. Jaksa indicated that he has no dependency or alcohol or mental health issues but suffers from anxiety.

(e) Impact on the victim and the community

[25] The impact on the community of gang violence is well known. It is not only gang members who perpetrate it on each other. As Sgt. Nasser testified, gang violence also involves preying on innocent members of the community. Gangs terrorize the communities where they live. They bring violence and the social harms associated with crimes such as drug, weapons, and human trafficking.

[26] Mr. Haye did not provide a victim impact statement. Mr. Rodocker and Mr. Jaksa argued that I should take into account the character of Mr. Haye. Mr. Haye is himself a former gang member. He dealt drugs. He also robbed other drug dealers. It is not, Mr. Rodocker argued, the same as kidnapping and holding for ransom, say, an innocent shopkeeper.

[27] I must respectfully disagree, for three reasons:

• First, it is not a principle of sentencing that the low moral character of the victim is a mitigating factor;

• Second, it would be wrong to treat the moral blameworthiness of the offender as comparable to the moral character of the victim;

• Third, focusing on the moral character of the victim risks changing the focusing of the sentencing process from something other than the moral blameworthiness of the offender and engaging in a collateral investigation into the moral character of the victim.

[28] I will deal with each of these points in turn, commencing with the principles of sentencing:

[29] Section 718.2(a) of the Criminal Code sets out the aggravating factors that a Court must take into account when sentencing an offender. It is not an exhaustive list. The key factor that applies to this case is s. 718.2(a)(iii.1):

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation…

[30] More importantly, the Criminal Code does not suggest that the unsavory nature of the victim can be mitigating. It only states that a significant impact on a victim can be aggravating. I respectfully disagree that R. v. Lewers, 2012 ONSC 5332 lends support to the proposition that the moral character of the victim matters in a way that mitigates the gravity of the offence.

[31] Furthermore, the wording of the kidnapping section itself does not assist this argument. Section 279(1.21) of the Criminal Code states that a court shall take into account the age and vulnerability of a kidnap victim where the victim is under 16 years of age. In my view, the obvious interpretation of that section is that where a person is young and vulnerable it is an aggravating, not a mitigating factor. Mr. Haye was 16 years of age at the time of the offences. He was not especially vulnerable, given that he was a drug dealer and a gang member, but he was still only 16.

[32] I therefore turn next to the moral character of the victim. Comparing the moral blameworthiness of the offender to the moral character of the victim is dangerous on policy, as well as legal grounds. To do so implies some degree of justification for the crime (leaving aside defences such as self-defence and provocation). Should a husband who is convicted of second degree murder for killing his wife be sentenced to a lower period of parole ineligibility because his wife was cheating? Should a man who sexually assaults a sex worker be sentenced to a lower sentence because the victim was, after all, a sex worker? Should a mobster who orders the execution of a rival mobster be sentenced to a lesser punishment simply because it was just, after all, business? It is to be hoped that we have left those shibboleths long ago.

[33] Finally, the focus of the sentencing hearing should be on crafting a fit sentence for the offender. The focus should not be on the character of the victim. The character of the victim is different from the impact on the victim, which is a legitimate thing to take into account. Focusing on the victim’s moral character risks conducting inquiries into collateral matters. For example, Dontay Haye is an admitted drug dealer and robber. As a matter of fairness, should I not inquire into his circumstances? Did he have a good upbringing and is simply a bad seed? Or was he forced to raise himself without good role models and parental guidance?

[34] I need not answer any of these questions. I reject the submission that I should take Mr. Haye’s low moral character into account.

3. Legal Parameters

[35] Count 1 (s. 279(1.1)(a) of the Criminal Code) is the kidnapping count. It carries with it a maximum penalty of life imprisonment. In this case, since the jury found that the offence was committed with a firearm in association with or for the benefit of a criminal organization. As a result there is a five-year mandatory minimum penalty for each of the three accused men.

[36] Count 2 (s. 279(2)(a) and s. 467.12(1) of the Criminal Code) is the unlawful confinement count. It ordinarily carries a maximum penalty of ten years. Since the jury determined that it was committed in association with or for the benefit of a criminal organization it carries a maximum penalty of fourteen years in prison. The jury convicted all three men of this offence. In my view, this count should be stayed. The facts arise from the same transaction as the kidnapping: R. v. Lewers, 2015 ONCA 41 at para. 11.

[37] Count 3 (s. 266(a) and s. 467.12(1) of the Criminal Code) is the assault count and Count 4 (s. 264.1(2)(a) and s. 467.12(1) of the Criminal Code) is the uttering death threat count. The jury convicted Mr. Thomas and Mr. Thomas-Stewart of these counts. They each ordinarily carry a maximum of five years imprisonment. The jury determined that these offences were committed in association with or for the benefit of a criminal organization. Therefore, each carries a maximum penalty of fourteen years in prison.

[38] Count 5 (s. 346(1.1)(a) of the Criminal Code) is the extortion count. Like the kidnapping count, it carries with it a maximum penalty of life imprisonment. As well, like the kidnapping count, the jury found that the offence was committed with a firearm in association with or for the benefit of a criminal organization. As a result there is a five-year minimum penalty for each of the three accused men.

[39] Count 6 (s. 367(a) and s. 467.12(1) of the Criminal Code) is the assault with a weapon count. The jury convicted Mr. Oppong of this offence. It ordinarily carries a maximum penalty of ten years. Since the jury determined that it was committed in association with or for the benefit of a criminal organization it carries a maximum penalty of fourteen years in prison.

[40] Count 7 (s. 92(3)) is the possession of a firearm count. The jury convicted Mr. Oppong and Mr. Thomas of this count. The jury acquitted Mr. Thomas-Stewart. It carries a maximum penalty of ten years for a first offence. It also carries a minimum punishment of one year for a second offence. Mr. Oppong pleaded guilty to a different weapons offence in July 2017. I must therefore treat this as a first offence. Even if he had pleaded guilty to the same offence, I would still treat this one as a first offence since he had not been convicted at the time: R. v. Cheetham (1980), 53 C.C.C. (3d) 721 (Ont.C.A.).

[41] No separate s. 467.12 count was filed by the Crown. As I read the section, where s. 467.12 is tacked on to a predicate offence, it simply increases the range of sentence available. Furthermore, by virtue of s. 467.14 any offence that has a s. 467.12 component must be consecutive to other sentences, even if arising out of the same transaction or series of events: R. v. Farah, 2016 ONSC 5000 at para. 39.

[42] In addition to the counts on the indictment, Mr. Oppong and Mr. Thomas-Stewart were convicted of the weapons prohibition count on the separate indictment contrary to s. 117.01 of the Criminal Code. That count carries with it a ten-year maximum penalty.

4. Positions of the Crown and Defense

[43] Crown counsel, Mr. Zambonini, takes the position that the global sentencing range for these offences is 10-15 years with Mr. Oppong at the higher end of the range and Mr. Thomas-Stewart at the lower end of the range. Mr. Rodocker, for Mr. Oppong, argues that he should receive a sentence in the range of 7-9 years. Mr. Singh argues that Mr. Thomas should receive a sentence of 7 years. Mr. Jaksa argues that Mr. Thomas-Stewart should receive a sentence of 5-6 years.

[44] All three men argue that they should receive credit for pre-sentence custody. Mr. Zambonini does not dispute that.

5. Case Law

[45] Mr. Zambonini referred me to several cases dealing with gun offences. Those cases confirm that cases of gun possession require exemplary sentences. For example, see: R. v. Danvers (2005), 2005 30044 (ON CA), 199 C.C.C. (3d) 490 (C.A.); R. v. P.P.J., [2010] O.J. No. 5440 (Sup.Ct.).

[46] Crown counsel also relies on R. v. L.D. (2002), 2002 19782 (ON CA), 166 O.A.C. 295, [2002] O.J. No. 465 (C.A.). The offenders conducted a carjacking. The victims were held in the trunk and in an apartment. They offenders robbed, assaulted, and threatened the victims with a firearm. They were convicted of kidnapping, extortion, and robbery. The offenders were young at the time. One was 22 years old at the time of sentencing. The trial judge sentenced him to 18 years imprisonment. The other offender was 23 years old. The trial judge sentenced him to 16 years imprisonment. The trial judge found that the offenders were career criminals and the crime was one of pure horror. The Court of Appeal upheld the sentences, except in respect of some of the credit for pre-sentence custody.

[47] In R. v. Zebedee (2006), 2006 22099 (ON CA), 211 C.C.C. (3d) 199, 81 O.R. (3d) 583 (C.A.) the accused were drug dealers. They assaulted, threatened, and kidnapped two customers, Morrison and Dulmage. Morrison and Dulmage had allegedly defaulted on drug debts. Morrison was assaulted (and shot) on different occasions. Dulmage was forced into a taxi at gunpoint and taken to Zebedee’s home. Zebedee and the others beat him there with pipes and baseball bats. Zebedee, the main accused, was sentenced in totality to 24 years imprisonment, including 10 years for the kidnapping. The other offences were for aggravated assaults, use of a weapon in the commission of an offence, and threatening death. Zebedee had a lengthy record but for mostly non-violent offences. The Court of Appeal found that the hopes for rehabilitation, while slim, were not non-existent. The 24-year sentence was crushing. The Court substituted a global sentence of 17 years instead. The two other accused were sentenced to twelve years, including 10 years for the kidnapping. They were younger men, with more support and greater prospects for rehabilitation. The Court reduced the global sentences to 10 years, including six years for the kidnapping.

[48] Defence counsel referred me to R. v. Christakos, [1991] O.J. No. 3579 (Gen.Div.), a decision of Moldaver J. (as he then was). A jury convicted the offender of kidnapping, forcible confinement, sexual assault, and breaking and entering. The offender kidnapped the victim and forced her to perform sexual acts on him. Moldaver J. sentenced the offender to 6 years on the sexual assault count, one year concurrent on the kidnapping count, and 6 months concurrent on the break and enter. He stayed the forcible confinement count as it arose from the same set of circumstances that gave rise to the kidnapping count.

6. Mitigating and Aggravating Factors

[49] Where criminal organization offences are committed it is a statutory aggravating factor: s. 718.2(a)(iv) of the Criminal Code. Applying the statutory aggravating factors along with the consecutive offences required by s. 467.14 of the Criminal Code is not double-counting: R. v. Beauchamp, 2015 ONCA 260 at paras. 325-26.

[50] The most important aggravating factors for Mr. Oppong are his criminal record (albeit in a limited way due to the fact that much of it is a youth record) and his leadership of IDS. Regrettably, given his spotty employment record and his leadership of IDS, I must conclude that Mr. Oppong is a professional criminal. He has chosen to pursue a life of crime.

[51] The most important mitigating factors are Mr. Oppong’s support from his family, particularly his mother. He also has the support of a partner with whom he has been in a relationship for many years. He has apparently worked on his GED while in custody. I do accept that he has prospects for rehabilitation. Even a professional criminal can be rehabilitated and we should not ignore the possibility.

[52] Turning to Mr. Thomas, it is also highly aggravating that he has a significant criminal record (although, like Mr. Oppong, much of his record consists of youth offences). He also has a spotty employment history and is a gang member. Like Mr. Oppong, he is a professional criminal. Mr. Singh outlined how he was depressed and turned to drugs after his girlfriend miscarried with their child. It is unfortunate for him that he will almost certainly be deported. Regrettably, there are few mitigating factors that I am aware of.

[53] The main aggravating factor for Mr. Thomas-Stewart is the role he played in the offence, including the violence he displayed against Mr. Haye. I agree with Mr. Jaksa that his criminal record is dated, is mostly for youth offences, and is relatively minor (at least in contrast to Mr. Thomas and Mr. Oppong). I give his record little weight.

[54] There are more mitigating factors for Mr. Thomas-Stewart than there are for Mr. Oppong or Mr. Thomas. I am unable to conclude, based on the evidence before me, that Mr. Thomas-Stewart was a full-time member of IDS, although it is certainly true that he committed crimes for the benefit of or in association with IDS. I am also unable to conclude that Mr. Thomas-Stewart is a career criminal like Mr. Oppong or Mr. Thomas. Mr. Thomas-Stewart has the support of his family and a partner who has stood by him. As well, Mr. Thomas-Stewart has a history of real employment. He was laid off from his full-time job only a few months prior to these offences.

[55] Finally, I must comment on the demeanor of the three accused men before me and before the jury. All three men were appropriate, polite and respectful in court. If did not know better, I might have taken them for university students or apprentice tradesmen. I understand that even hardened criminals know the rules of the game and are on their best behavior in front of the judge and the jury. Nonetheless, it at least tells me that these young men are at least capable of learning the important lesson that public behavior counts. I hope that they take this lesson to heart.

7. Principles of Sentencing

[56] The real crimes in this case involve kidnapping while using a firearm, and doing so for the benefit of or in association with a criminal organization. In other words, this is a case of gang members kidnapping someone, using a gun, and doing so for the benefit of the gang. I adopt the comments of Trafford J. in Lewers, supra, at para. 15 regarding the principles of sentencing with regard to kidnapping:

The sentencing of an offender for kidnapping requires emphasis on the principles of general and specific deterrence, and denunciation, while having some regard for the rehabilitative interests of the offender. The sentence must be proportionate to the degree of culpability and the moral blameworthiness of the offender. This is the sentencing matrix in such cases because of the societal abhorrence of the arbitrary intervention by the offenders into the lives of the victims of the kidnapping, direct and indirect, and the value placed on the freedom of a person in a free and democratic society to live his or her life as he or she sees fit, compatible with the rule of law.

[57] With regard to criminal organization offences, I am guided by the comments of the Court of Appeal in R. v. Beauchamp, supra, at paras. 259-261.

As discussed earlier in these reasons, the broad language employed in s. 467 confirms the criminal organization provisions are intended to encompass a wide array of co-ordinated serious crimes, including credit card fraud. The section takes aim at the enhanced harm to society occasioned by a variety of groups who knowingly and collectively engage in criminal activity of a serious nature.

In R. v. Mastop, 2013 BCCA 494, 303 C.C.C. (3d) 411, at para. 46, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 23, the British Columbia Court of Appeal described the overall purpose of s. 467 in this fashion:

The overall objective of the criminal organization legislation is to protect society from the wide-ranging effects, violent and otherwise, of criminals who work together as a group, as well as to prevent and deter organized criminal activities. Offenders who regularly commit crimes together are a greater menace to society than an individual offender working alone.

We endorse these comments. Protection of the public, deterrence and denunciation are the primary sentencing objectives for s. 467 offences. We also agree with the Crown's submission that the achievement of these objectives depends on the prospect of significant penal sanctions for organized criminal conduct.

[58] Finally, with regard to the use of firearms, I agree with the sentiments expressed by Nordheimer J. (as he then was) in P.P.J., supra, at para. 32:

In my view, the paramount sentencing objectives in this case are denunciation and deterrence. The citizens of this city must be protected from individuals who choose to illegally possess weapons and even more importantly, who choose to use those weapons especially in such a premeditated and merciless manner. Individuals who choose to engage in such behaviour must be given the strongest possible message that such conduct simply will not be tolerated and, if it is committed, it will attract the severest of consequences. Severe consequences are also necessary to serve as a clear deterrent to others who might be inclined to engage in such conduct given the manifest danger that it poses for the lives and safety of other people.

[59] Although these offences are very serious and call for exemplary sentences, I must also bear in mind that the principles of totality and rehabilitation must apply. It is regrettable that these young men have either become professional criminals or seemingly started down the road to professional criminality. And yet, the Court’s need to send a strong message must be tempered. Long sentences would be crushing for these young men. None of the three are beyond rehabilitation.

8. Ancillary Orders

[60] Kidnapping is a primary designated offence. There will, therefore, be a DNA order pursuant to s. 487.051(1) of the Criminal Code for all three men. There will also be prohibition orders pursuant to s. 109(3) of the Criminal Code for life for all three men.

9. Final Decision

[61] This is a case involving gang violence with a firearm. I accept the evidence of Sgt. Nasser regarding the nature of IDS. That evidence was not seriously contested. IDS is a street gang that engages in criminal activity, preys on members of the community, and uses fear and intimidation to defeat law enforcement attempts to curb its activities. IDS has been responsible for violence and victimization. Gangs like IDS prey on members of the community who are vulnerable and do not have the resources to resist. That is the reason for the stern sentences imposed for criminal organization offences. On the other hand, I acknowledge that it is not the most serious kidnapping on the spectrum, even if it did involve gangs and firearms. It did not involve gratuitous violence. It was of relatively short duration (at least as far as Mr. Thomas and Mr. Thomas-Stewart’s role was concerned) and was not an offence of stark horror, as some kidnappings are.

[62] The primary sentencing principles that I must apply, as I have indicated, are general and specific deterrence. The paramountcy of those principles is reflected in the mandatory minimum sentences for the offences of kidnapping and extortion. Each carries a five-year minimum. The paramountcy of those principles is also reflected in the statutory aggravating factors, particularly for criminal organization offences.

[63] I agree with Crown counsel that strong exemplary sentences are called for. I also agree that the high end of the range is 10-15 years. Mr. Oppong is at the higher end of the range. I do find, however, that the range can be as low as 6 years for an offender playing a more marginal role. Mr. Thomas-Stewart is at the lower end of the range.

[64] The principle of totality must play a role. Even with the principle of totality applied, it is unbearably sad that these young men will spend such a significant amount of their young lives in custody. The problem with imposing a sentence of, say, 15 years for Mr. Oppong is that he is 24 years old and any such sentence would be consecutive to the 3-year sentence he is currently serving on the firearms offence. That would be a total 18-year sentence (less pre-sentence custody, which I will get to). I agree with Mr. Rodocker that such a sentence would be crushing for a young man, even a professional criminal. I also agree with Mr. Rodocker that such a sentence would breach the principle of totality. It would also fail to pay appropriate attention to the principle of rehabilitation. A sentencing court must take heed of that principle, even where the offences involve firearms, gang violence, and professional criminals.

[65] I find that the same principle of totality applies to both Mr. Thomas and Mr. Thomas-Stewart as well. Double-digit sentences would be crushing to one young man who has a realistic prospect of rehabilitation, and another young man will be deported.

[66] In this case many offences are charged and principles of totality are engaged. In my view the correct approach is to determine the gravamen of the criminal conduct and then craft an appropriate global sentence. I will then apportion the time periods among the offences: R. v. Jewell (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont.C.A.); R. v. Ahmed, 2017 ONCA 76 at para. 85. The approach is complicated in this case by the mandatory minimum sentences for two offences. It is further complicated by the criminal organization offences, which must be consecutive. It is complicated even further by the question of half-time parole and the statutory aggravating factors.

[67] I turn now to sentencing each individual.

(a) Derek Oppong

[68] Mr. Oppong played the lead role in kidnapping Mr. Haye. He is a professional criminal who was enforcing the rules of the gang. On the other hand, he is a young man with some prospects for rehabilitation. Taking all of the circumstances and the sentencing principles into account, I sentence Mr. Oppong to a global sentence of 11 years imprisonment years on all counts, including the counts on the kidnapping indictment and the weapons prohibition breach indictment. His sentences will run consecutive to the three-year sentence he is now serving. A higher sentence, while certainly deserved, would be crushing for him.

[69] I allocate the sentences as follows:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code): 9 years imprisonment.

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code): stayed.

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code): 5 years, concurrent to Count 1.

• Count 6: Assault with a weapon (a handgun) for the benefit of or in association with a criminal organization (s. 367(a) and s. 467.12(1) of the Criminal Code): 1 year, consecutive to Count 1.

• Count 7: Possession of a firearm knowing he was not the holder of a license or registration certificate (s. 92(3) of the Criminal Code): 3 years, concurrent to Count 1.

[70] On the separate offence of possession of a weapon in contravention of a prohibition order, I find that a consecutive sentence is appropriate. Mr. Oppong is sentenced to one year consecutive to the other offences.

[71] As of today Mr. Oppong has been in pre-sentence custody for 812 days. Crediting him with 1.5 days for every day spent in custody means that he has served an equivalent of 1,218 days or 40 months and 18 days.

[72] An enormous amount of the time that Mr. Oppong has been in custody was spent on lockdown at the Toronto South Detention Centre. The problems at that facility are well known to this Court. The time on lockdown amounted to almost every other day. Prisoners cannot shower, use the telephone, exercise, or get fresh air when they are on lockdown. I agree with Mr. Rodocker that Mr. Oppong should receive credit for lockdowns. The Court of Appeal has approved such credit: R. v. Duncan, 2016 ONCA 754. There is no set mathematical formula for such credit. In the circumstances of this case Mr. Oppong has been in custody for almost 2 ½ years. I would credit him with a further 7 months and 12 days for the lockdowns. Thus, the total pre-sentence custody credit to Mr. Oppong will be 48 months or 4 years. This custody will be credited against Count 1, the kidnapping count. Thus, the final sentence on Count 1 will be 5 years in imprisonment in light of pre-sentence custody. All other sentences will be consecutive or concurrent as I have mentioned.

[73] I must also consider whether to impose a half-time parole order on Mr. Oppong. He was convicted of an offence under s. 467.12 of the Criminal Code. Section 743.6(1.2) requires a court to order that he serve one half of his sentence before he is eligible for parole. A court must make this order unless the court is satisfied that,

… having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act.

[74] The paramount principles guiding the application of this provision are denunciation and deterrence. Rehabilitation is a subordinate principle: s. 743.6(2) of the Criminal Code.

[75] Taking all the circumstances into account, including the mandatory nature of the provision, a half-time parole order will be ordered for Mr. Oppong.

(b) Akido Thomas

[76] Mr. Thomas played a secondary role in the kidnapping of Mr. Haye. Like Mr. Oppong he is a professional criminal who was enforcing the rules of the gang. He appears to have fewer prospects for rehabilitation, although I cannot say that he has no prospects. He is also a young man and he will almost certainly be deported. Taking all of the circumstances and the sentencing principles into account, I sentence Mr. Thomas to a global sentence of 9 years imprisonment on all counts, including the counts on the kidnapping indictment and the weapons prohibition breach indictment.

[77] I allocate the sentences as follows:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code): 7 years.

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code): stayed.

• Count 3: Assault for the benefit of or in association with a criminal organization (s. 266(a) and s. 467.12(1) of the Criminal Code): 1 year, consecutive to Count 1.

• Count 4: Uttering a death threat for the benefit of or in association with a criminal organization (s. 264.1(2)(a) and s. 467.12(1) of the Criminal Code): 1 year, consecutive to Count 1 and concurrent to count 3.

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code): 5 years, concurrent to Count 1.

• Count 7: Possession of a firearm knowing he was not the holder of a license or registration certificate (s. 92(3) of the Criminal Code): 3 years, concurrent to Count 1.

[78] On the separate offence of possession of a weapon in contravention of a prohibition order, I find that a consecutive sentence is appropriate. Mr. Thomas will serve one year consecutive to the other offences.

[79] Mr. Thomas has served 900 days in custody as of today’s date, also at the Toronto South Detention Centre. Crediting him with 1.5 days for every day spent in custody means that he has served an equivalent of 1,350 days or 45 months. I am prepared to credit him with a further 7 months, as I credited Mr. Oppong. I understand that they were affected by the same conditions. Thus the total pre-sentence custody credited to Mr. Thomas will be 52 months. I will credit him with 52 months on Count 1 and Count 5 since they are concurrent. Thus, on Count 1 the sentence is 7 years (or 84 months) with 52 months credit for a final sentence of 32 months (4 years and 10 months) in light of pre-sentence custody. On Count 5, the sentence is 5 years (or 60 months) with 52 months credit for a final sentence of 8 months in light of pre-sentence custody. All other sentences will be consecutive or concurrent as I have mentioned.

[80] The same considerations for half-time parole for Mr. Oppong also apply to Mr. Thomas. Accordingly, a half-time parole order is imposed.

(c) Raheem Thomas-Stewart

[81] Like Mr. Thomas, Mr. Thomas-Stewart played a secondary role in the kidnapping of Mr. Haye. Unlike Mr. Oppong and Mr. Thomas, he does not appear to be a professional criminal. His prospects for rehabilitation are brighter, as he has a supportive partner and a track record of relatively steady employment. Taking all of the circumstances and the sentencing principles into account, I sentence Mr. Thomas-Stewart to a global sentence of 6 years imprisonment on all counts. I allocate the sentences as follows:

• Count 1: Kidnapping with a firearm for the benefit of or in association with a criminal organization (s. 279(1.1)(a) of the Criminal Code): 5 years.

• Count 2: Unlawful Confinement for the benefit of or in association with a criminal organization (s. 279(2)(a) and s. 467.12(1) of the Criminal Code): stayed.

• Count 3: Assault for the benefit of or in association with a criminal organization (s. 266(a) and s. 467.12(1) of the Criminal Code): 1 year, consecutive to Count 1.

• Count 4: Uttering a death threat for the benefit of or in association with a criminal organization (s. 264.1(2)(a) and s. 467.12(1) of the Criminal Code): 1 year, consecutive to Count 1 and concurrent to Count 3.

• Count 5: Extortion with a firearm for the benefit of or in association with a criminal organization (s. 346(1.1)(a) of the Criminal Code): 5 years, concurrent to Count 1.

[82] Mr. Thomas-Stewart has served 895 days in pre-sentence custody. Crediting him with 1.5 days for every day spent in custody means that he has served an equivalent of 1,343 days or 44 months and 3 weeks. Mr. Thomas-Stewart did not spend all of his time at the Toronto East Detention Centre and also at Penetanguishene. He did spend time at the Toronto South but Mr. Jaksa was unable to quantify the exact amount. I am prepared to credit him with a further 5 months and one week for lockdowns, as I credited Mr. Oppong and Mr. Thomas, notwithstanding that this is a somewhat arbitrary figure. That means Mr. Thomas-Stewart is credited with 49 months of pre-sentence custody.

[83] Under the circumstances of this case, I will apply 49 months to Count 1 and 49 months to Count 5, as they are concurrent counts. Thus on Count 1 his sentence is 5 years (60 months) with 49 months credit for a final sentence of 11 months in light of pre-sentence custody. On Count 5 his sentence is 5 years (60 months) with 49 months credit for a final sentence of 11 months in light of pre-sentence custody. All other sentences will be consecutive or concurrent as I have mentioned.

[84] The same considerations for half-time parole for Mr. Oppong and Mr. Thomas also apply to Mr. Thomas-Stewart. Accordingly, a half-time parole order is imposed.

R.F. Goldstein J.

Released: November 6, 2017