Her Majesty the Queen v. Tofarri Wright, 2018 ONSC 4209

Date: 2018-07-05 Court: Superior Court of Justice – Ontario

Between: Her Majesty the Queen Paul Leishman for the Crown

And: Tofarri Wright Tony Paas for Mr. Wright

Heard: May 31, 2018

Reasons for Sentence

Corrick J. (orally)

Introduction

[1] On April 3, 2018, I found Mr. Wright guilty of four counts on an indictment as follows:

• Count 1 – possession of a loaded prohibited firearm without a licence, contrary to s. 95(1) of the Criminal Code
• Count 2 – possession of a prohibited firearm without holding a licence, contrary to s. 91(1) of the Criminal Code
• Count 3 – possession of a prohibited firearm knowing he was not the holder of a licence, contrary to s. 92(1) of the Criminal Code
• Count 4 – carrying concealed a prohibited device, contrary to s. 90(1) of the Criminal Code .

[2] Mr. Wright challenged the admissibility of the firearm and magazine discovered by police in a bag he was carrying. Once I ruled that they were admissible, Mr. Wright did not contest his guilt. He made certain admissions, and did not call any evidence. As a result, I found him guilty.

[3] Mr. Wright appears before me today for sentencing on all counts.

Circumstances of the Offences

[4] In February 2015, police were investigating a report of gun shots heard in a park behind 3400 Weston Road. As a result of their investigation, police obtained a warrant to search Unit #2509 at 3400 Weston Road. Prior to the execution of the warrant, police were surveilling the interior of the building. They saw the target of the warrant, together with Mr. Wright and another man, enter the building’s elevator. Police boarded the elevator when it arrived in the lobby. The three men were searched. Mr. Wright was found to be carrying a purse-like bag across his chest that contained a loaded 9mm handgun. One round of ammunition was in the chamber, and five further rounds were in the magazine.

Circumstances of the Offender

[5] Mr. Wright is 25 years of age. He had just turned 22 at the time of these offences. He has no prior criminal record. He and his sister were raised by his mother. Although his parents separated before he was born, he maintained a close relationship with his father. His sister has just completed high school and will be going to university in the fall.

[6] By all accounts, including a pre-sentence report prepared for this case, Mr. Wright had a happy and normal childhood, and positive upbringing. He was a good student. Throughout high school, he was very engaged in sports, particularly basketball. He was reputed to be a talented athlete. He had ambitions to play basketball at a higher level.

[7] After graduating, he held a number of different jobs until April 2014, when he was involved in a car accident. The injuries he sustained in the accident prevented him from performing the physical duties associated with his job and he became unemployed. As a result, he had to return to live with his mother. He had been living independently for a few years before that.

[8] Tragedy struck Mr. Wright and his family numerous times throughout Mr. Wright’s younger years. In 2004, his grandmother, with whom he had a close relationship, passed away after suffering for two years from Lewy Body Dementia, a very debilitating disease. During that time, Mr. Wright’s mother was his grandmother’s primary caregiver. Watching his grandmother suffer was difficult for Mr. Wright.

[9] On July 26, 2008, the father of Mr. Wright’s sister was murdered. He was shot while attending a fund raising event in Toronto.

[10] On April 3, 2010, Mr. Wright’s father’s body was found in the Humber River. The cause of his death is unknown. According to Lisa Wright, Mr. Wright’s mother, Mr. Wright was significantly affected by his father’s death. In a letter she wrote to the court, she described Mr. Wright as “broken” following the death of his father. Despite her efforts to get Mr. Wright help to deal with his grief, he refused. Instead, he left his mother’s home to live on his own.

[11] Five months after these offences, Mr. Wright himself was the victim of gun violence. On August 21, 2015, he was shot multiple times in the face and upper body. His lower jaw and upper lip were destroyed. He lost almost all of his teeth. His sternum, clavicle and scapula were fractured. He also suffered injuries to his right lung and left arm. He has undergone numerous surgical procedures to reconstruct the lower part of his face. He will require further surgery. He is required to live on a liquid diet.

[12] Mr. Wright is being treated by Dr. Daniel Lefcoe at the London Health Sciences Centre. A letter from the doctor indicates that Mr. Wright has been diagnosed with PTSD.

[13] Mr. Wright, in a letter he prepared for the court, explained that he lives with chronic pain, and has constant flashbacks as a result of being shot. Each time he has surgery, he must learn how to speak, eat and swallow anew.

[14] After Mr. Wright was shot, his family relocated to London, Ontario, away from the negative peer group with which he was associating in Toronto. He still resides with his mother, who is obviously a very concerned and supportive parent. She has attended Mr. Wright’s court appearances with him, and has written a letter to the court explaining the tragedies that her family has had to endure.

[15] For the past seven years, Mr. Wright has been involved in a relationship with his girlfriend, who has supported him through his trial and his medical treatments.

[16] The author of the pre-sentence report described Mr. Wright as cooperative, open, honest and respectful. The author also wrote that the significant losses Mr. Wright experienced as a young person continue to negatively affect his life, as he has not properly addressed his grief. According to the author, Mr. Wright has set attainable goals for himself, and could benefit from supervision to ensure that he follows through on them, and to assist him to receive counselling to address his mental health concerns.

Legal Parameters

[17] Possession of a loaded prohibited firearm is punishable by a maximum of ten years in prison, as is possession of a prohibited firearm knowingly without a licence. Carrying concealed a prohibited device and possession of a prohibited firearm without a licence are punishable by a maximum of five years in prison.

Positions of the Parties

[18] Mr. Leishman submits that a sentence of three and one-half years in prison before credit for pre-sentence custody and restrictive bail conditions is a fit disposition, given the significant aggravating factors in this case and the need for an exemplary sentence to achieve the sentencing objectives of deterrence and denunciation.

[19] Mr. Paas submits that the court should impose a sentence of two years less one day and order that Mr. Wright serve it in the community. In his submission, the unique circumstances of this case permit the court to impose a sentence that may be outside what might be considered the normal range of sentence for these offences.

Governing Sentencing Principles

[20] In determining a fit sentence for Mr. Wright, I am governed by the sentencing principles set out in the Criminal Code.

[21] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to "contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[22] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

[23] I am also required by s. 718.2 to take the following matters into consideration when imposing sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Sentences Imposed in Other Cases

[24] To determine the appropriate disposition, I must consider sentences imposed on similar offenders for similar offences in similar circumstances. I turn to that now.

[25] Mr. Leishman and Mr. Paas have each provided me with cases in support of their respective positions on the appropriate sentence.

[26] The decisions referred to by Mr. Leishman emphasize the need for the imposition of exemplary sentences for the illegal possession of loaded firearms to achieve the sentencing objectives of denunciation and deterrence: R. v. McKenzie, 2016 ONSC 5025; R. v. Mark, 2018 ONSC 447.

[27] In R. v. Mark, Justice Campbell sentenced a 25-year-old first offender to four years before crediting him for pre-sentence custody and restrictive bail conditions for possession of a loaded handgun, and possession of cocaine and marijuana for the purpose of trafficking. Like Mr. Wright, Mr. Mark was 22 at the time of the offences. He had a supportive family. He was a good student and talented athlete throughout high school. He had been involved in an eight-year romantic relationship with his girlfriend. He started trafficking in drugs when he ran into financial problems, and the firearm he possessed was one of the tools of his drug business. The combination of drugs and firearms in that case is a significant aggravating feature that is not present in Mr. Wright’s case. However, Justice Campbell noted that the unlawful possession of the loaded firearm merited the imposition of at least a three-year term of imprisonment.

[28] Mr. Paas referred to a number of cases in which a conditional sentence of imprisonment was imposed. In R. v. Ali et al., 2012 ONSC 7013, the offender pleaded guilty at the end of the Crown’s case to carrying a firearm in a careless manner, being an occupant of a car in which he knew there was a firearm, and carrying a concealed weapon. The offender was a legal gun owner who carried the gun for protection when he went to buy some marijuana. A conditional sentence of 18 months was imposed. There are two important distinguishing features of that case from Mr. Wright’s. Firstly, the firearm was not loaded. Secondly, the offender had not acquired the firearm for a criminal purpose, but purchased it legally to use it at a firing range.

[29] The offender in R. v. Shunmuganathan, 2016 ONCJ 519 was an 18-year-old with no criminal record who pleaded guilty to possession of a prohibited firearm with readily accessible ammunition. The firearm was found by the offender’s mother in the offender’s bedroom closet. The offender had been holding the firearm and ammunition for several days for a male friend. A conditional sentence of two years less one day was imposed. Unlike Mr. Wright’s situation, the offender in that case did not possess the firearm in a public place, and the firearm was not loaded.

[30] Similarly, in R. v. Nuttley, [2013] ONCJ 727, the firearm in question was not loaded and had not been possessed in a public place. The offender pleaded guilty to numerous charges, including possessing a prohibited firearm with readily accessible ammunition and possessing prohibited oversize magazines. The firearm and magazines were found in the offender’s mother’s basement, where they had been left, unused, for years. The offender received a twelve-month conditional sentence after receiving credit for eleven months in pre-trial custody.

[31] A careful review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. Despite this, prior decisions assist in defining the principles that I must apply, and in determining the appropriate range of sentence and the factors that place Mr. Wright within that range.

[32] What is clear from the jurisprudence is that a conviction for possession of a loaded firearm will attract a substantial prison term, even for first offenders. R. v. Smickle, 2014 ONCA 49. The danger that firearms pose to the safety and security of our community demands an emphasis on denunciation and deterrence.

Aggravating and Mitigating Circumstances

[33] I turn now to consider the aggravating and mitigating circumstances.

[34] First the aggravating factors.

1. The circumstances in which Mr. Wright possessed this gun are very serious. He was in an elevator with other people in a large residential building. Numerous people, including children, were seen on the surveillance footage using the elevator. A large group of people was gathered in the lobby when the elevator transporting Mr. Wright and the two other men arrived. He put the safety of many people, including the three police officers who were investigating him and the other two men, at risk.
2. A bullet was in the chamber of this gun. It was ready to be fired to injure or kill someone.
3. There is no evidence before me that explains Mr. Wright’s possession of this gun. Given the circumstances of his possession, it is clear that he possessed it for a criminal purpose, whether his own or someone else’s.

[35] I have also considered the following mitigating factors:

1. Mr. Wright is a youthful first offender. He has been on bail for more than three years without further criminal behaviour.
2. He has strong support in the community. His mother is very supportive and concerned. His girlfriend continues to support him. These relationships will assist him in his rehabilitation. In addition, it appears that he has cut ties with his former associates, assisted by his mother relocating the family to London.
3. Numerous tragedies have befallen Mr. Wright throughout his young life. Despite the loss of his grandmother, father and step-father, he completed high school and worked full-time until he was injured in a car accident.
4. Mr. Wright has experienced first-hand the catastrophic consequences of gun violence. He has lasting physical injuries, which require ongoing surgical intervention, and he is being treated for post-traumatic stress disorder. He has gained insight into his need for counselling to deal with his mental health. This too augers well for his rehabilitation.
5. Although he did not plead guilty to these offences, Mr. Wright did not contest his guilt once the firearm was ruled admissible.

Determination of a Fit Sentence

[36] Mr. Paas relies on the Supreme Court of Canada’s decision in R. v. Lacasse, 2015 SCC 64 in support of his submission that I am not bound by the established range of sentence for firearm offences, and that in the circumstances of this case I should deviate from it, and impose a conditional sentence. In his submission, Mr. Wright’s unique personal circumstances take this case outside of the established range.

[37] As I have already indicated, denunciation and deterrence are of paramount importance in cases involving the illegal possession of firearms. Thirteen years ago, Justice Armstrong of the Ontario Court of Appeal described the possession and use of illegal handguns in the Greater Toronto area as a cause for major concern in the community. R. v. Danvers. Unfortunately, this concern, perhaps even heightened, persists to the present day.

[38] I acknowledge that Justice Lamer held in R. v. Proulx, 2000 SCC 5 that conditional sentences can meet the objectives of denunciation and deterrence in some cases. However, he also noted that there will be cases, “in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

[39] Mr. Wright’s illegal possession in public of a loaded handgun, ready to fire, warrants a custodial sentence to adequately express society’s condemnation of his conduct.

[40] As Justice Doherty indicated in R. v. Nur, 2013 ONCA 677, “Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”

[41] Rehabilitation, however, remains a very significant and important objective in this case given Mr. Wright’s young age and his rehabilitative prospects.

[42] In addition, I recognize the well-established principle in our jurisprudence that a first sentence of imprisonment, especially for a youthful offender, should be as short as possible and tailored to the circumstances of the offender, rather than imposed solely for the purpose of general deterrence. R. v. Priest.

[43] In all of the circumstances of this case, in my view, the appropriate disposition before giving Mr. Wright credit for the time he spent in pre-trial custody and subjected to house arrest, is two years less one day in the reformatory to be followed by two years’ probation. This disposition recognizes the very serious nature of Mr. Wright’s crime, and all of the aggravating and mitigating circumstances.

Credit for Pre-Sentence Custody

[44] Mr. Wright will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26. He spent 5 days in custody before being released. Enhanced at 1.5 days for each day, he will be given credit for one week.

Credit for Stringent Conditions of Release

[45] Mr. Wright was released on house arrest terms that prohibited him from being outside of his home unless he was in the presence of his surety. Five and one-half months later, in July 2015, the terms of his judicial interim release order were relaxed on consent of the Crown. The house arrest condition was replaced by a condition that he abide by a curfew from 10:00 p.m. to 6:00 a.m.

[46] For the past three and one-half years, Mr. Wright has abided by the conditions of his judicial interim release orders.

[47] These conditions were a significant restriction on Mr. Wright’s liberty at a time when he was presumed innocent. This is a mitigating factor to be taken into account. R. v. Downes.

[48] Given the duration of these restrictions, I will credit Mr. Wright with 49 days.

[49] In total, the sentence that I would otherwise have imposed on Mr. Wright will be reduced by 56 days, or 8 weeks, leaving a sentence of 22 months left to be served.

Rule Against Multiple Convictions

[50] Mr. Wright was found guilty of four counts related to his possession of a single firearm. The rule against multiple convictions prevents a person from being convicted of multiple offences arising from the same transaction when the elements of the offences are substantially the same. In those circumstances, the person should only be convicted of the most serious offence, and the findings of guilt on the other counts should be stayed. R. v. Kienapple.

[51] This rule prevents Mr. Wright from being convicted of the offences of possession of a prohibited firearm without holding a licence, contrary to s. 91(1), and possession of a prohibited firearm while knowingly not holding a licence, contrary to s. 92(1). The offence of possession of a loaded prohibited firearm, contrary to s. 95(1), is the more serious offence. It arose from the same transaction, and has the same elements as the offences in s. 91(1) and s. 92(1). The findings of guilt on Counts 2 and 3 on the indictment are therefore stayed.

[52] The offence in Count 4 of carrying concealed a prohibited device shares many common elements with the other counts. However, it contains an additional and distinguishing element – that of concealment. The legal components of this offence are sufficiently different from the s. 95(1) offence that the rule against multiple convictions does not apply.

[53] There will therefore be convictions on Counts 1 and 4.

The Probation Order

[54] In my opinion, Mr. Wright’s rehabilitation will be assisted by a period of probation following his period of incarceration. I note in particular a letter from Corey Janke, a psychotherapist who has treated Mr. Wright. Mr. Janke wrote that he treated Mr. Wright until the funding for his treatment was exhausted. He is willing to resume treating Mr. Wright if funding is available. Mr. Janke opines that Mr. Wright’s level of emotional distress is a significant barrier to his overall functioning. Probation services can assist Mr. Wright to receive the counselling he requires.

[55] Mr. Wright will be subject to conditions of probation for a period of two years following his release from custody. The probation order will include the statutory conditions as well as the following conditions:

• he shall report to a probation officer within two working days of his release from prison, and thereafter as required by his probation officer;
• he shall not own, possess or carry any weapon as defined in the Criminal Code;
• he shall participate in any counselling programs as directed by his probation officer and sign any release forms necessary to permit the probation officer to monitor his compliance with this condition; and
• he shall reside at an address approved by his probation officer.

Ancillary Orders

[56] I also make the following ancillary orders.

[57] Mr. Wright will be subject to a weapons prohibition order for ten years pursuant to s. 109 of the Criminal Code. The gun and ammunition seized from Mr. Wright will be forfeited to the Crown pursuant to s. 491(1) of the Criminal Code. Finally, I make a DNA order pursuant to s. 487.051 of the Criminal Code authorizing the taking of a DNA sample from Mr. Wright.

Conclusion

[58] In conclusion, Mr. Wright you are sentenced to 22 months on Count 1, and one year to be served concurrently on Count 4. You will also be subject to conditions of probation for a period of two years following your release from custody and the various ancillary orders that I have made.

[59] Given Mr. Wright’s medical needs, I will order that these reasons be sent to the correctional institution where Mr. Wright will be incarcerated, and that the correctional authorities review Mr. Wright’s unique medical needs and make accommodation for them.

Corrick J. Released: July 5, 2018