COURT FILE: CRIMJ(P) 367/17 DATE: 2018 09 24 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. T. Sarantis, for the Crown
- and -
TREVON WILLIAMS G. Holder, for the Defence
HEARD: September 14, 2018
REASONS FOR SENTENCE
HILL J.
INTRODUCTION
[ 1 ] Following a trial, Trevon Williams was found guilty of:
(1) unlawful possession of a loaded firearm (s. 95(1)) [Count #1] (2) breach of a probation order prohibiting the offender from possessing a firearm [Count #4] (3) breach of a weapons prohibition order [Count #5].
[ 2 ] It falls to be determined what a fit and just sentence is for these crimes.
THE OFFENCES
[ 3 ] As the court’s earlier reasons for judgment (2018 ONSC 3654) fully documented the relevant factual background, only summary reference is necessary at this time.
[ 4 ] As of November 2, 2016, Trevon Williams had been subject, for 5 months, to two court-ordered prohibitions against possessing a firearm. On November 2, 2016, the offender became the subject of surveillance by the Peel Regional Police Service (PRPS). The offender was observed by police to spend a few minutes in a Brampton hotel before travelling by taxi to a high school in Brampton where he again spent a brief time. Throughout this time period, the offender was carrying a concealed, loaded .22 calibre semi-automatic handgun and additional ammunition for the firearm. Minutes after leaving the school, the offender was arrested in a high-risk takedown during which he was tasered by police.
[ 5 ] The bulk of the trial time was devoted to a series of constitutional challenges to the conduct of the police. The defence admitted almost all of the factual context for the case insofar as proof of elements of the alleged offences.
EFFORT TO OBTAIN A GLADUE REPORT
[ 6 ] Through counsel, Trevon Williams, an African Canadian, maintained that he was also of Aboriginal heritage. On June 13, 2018, the court ordered a Gladue Report. By a report dated July 18, 2018, Aboriginal Legal Services (ALS) in part provided this information relating to a July 6 interview with Mr. Williams:
During that interview, Mr. Williams was unable to speak to his own experiences as an Aboriginal person and did not have much knowledge of that background. Mr. Williams said he believed his maternal grandmother is “Mi’kmaq Inuit” from “up North” but was unable to discuss his ancestry specifically. Mr. Williams provided Ms. Wylie with information to contact his mother and maternal grandmother to inquire further about their Aboriginal ancestry.
[ 7 ] Ms. Wylie, the ALS Case Worker, contacted the offender’s mother, Dahlia Williams, who related that only in the past 4 or 5 years did she learn of her Aboriginal heritage. Ms. Williams believed her father was of Cree ancestry and her mother, Dianne Sparks, to be of Mi’kmaq ancestry. When contacted, Ms. Sparks, the offender’s grandmother, reported that she is a member of the Metis Nation in Nova Scotia which she related as interchangeable with the Mi’kmaq people. Ms. Wylie appears to have concluded that Ms. Sparks may be a member of the Eastern Woodland Metis.
[ 8 ] The Gladue caseworker’s report to the court concluded in this way:
We trust that this letter provides all the relevant information with regard to our efforts to respond to the Gladue request we received. At this point in time we are unable to prepare a Gladue Report for Mr. Williams for two reasons. First, we are unsure, as is he, about the specific nature of his Aboriginal ancestry and second, even if his ancestry was somehow able to be confirmed we cannot address how being an Aboriginal person has affected his life circumstances. The purpose of a Gladue Report is to discuss the way in which the individual, before the court has been influenced and affected by their Aboriginal ancestry – either directly, or by systemic and historical factors. This letter should not be read in any way as stating that Mr. Williams is not an Indigenous person – we are not in a position to draw such a conclusion. Nor should this letter be read as stating that there may not be relevant Gladue issues at play in this case. The fact that we are not able to prepare a Report for Mr. Williams does not mean that there are no Gladue related issues counsel may wish to raise with the Court.
[ 9 ] In light of the contents of the ALS report, a conventional presentence report (PSR) was ordered.
THE OFFENDER’S BACKGROUND
[ 10 ] Mr. Williams is currently 20 years of age. His parents separated when he was young. Over time he resided with each of his parents. The offender’s mother had a substance abuse problem. He has a number of half-siblings. The offender left school in grade 10. A majority of his 16 earned high school credits were during a 12-month period in youth custody at the Roy McMurtry Youth Centre. In terms of employment experience, the offender has worked in various seasonal placements with none lasting longer than 6 months.
[ 11 ] When Trevon Williams was aged 16, 15-year-old E.F. became pregnant with their child. The couple were in a romantic relationship for about 3 years during which the offender was in custody for a majority of the time. He has met his daughter on one occasion.
OFFENDER’S CRIMINAL HISTORY
[ 12 ] The offender has a Youth Court record:
Level and Location of Court Date Offence Disposition
2016-05-31 Toronto, ON Youth Justice Court (1) Sexual Assault (2) Assault with Weapon (3) Assault (4) Theft Under (5) Obstruct Peace Officer (6) (7) (8) (9) Fail to Appear (10) (11) Sexual Assault (12) Uttering Threats (13) Forcible Confinement (14) Assault (1) Probation 24 months (12 mons. presentence custody) & Discretionary Weapons Prohibitions YCJA 2 yrs (2-14) Probation 24 months on each charge concurrent
PRESENTENCE CUSTODY
[ 13 ] The offender has been in custody at the Maplehurst Correctional Complex (Maplehurst) since the date of his arrest, November 2, 2016 – a period of 692 days or about 23 months (Nov. 2/16 (PRPS custody of 1 day); Nov. 3/16 to Sept. 24/18 (Maplehurst custody of 691 days)).
[ 14 ] The Maplehurst “Lockdown Summary” (Exhibit #4), covering the time period of November 3, 2016 to August 24, 2018, a period of 660 days, discloses that the offender was subjected to ‘full lock-down’ on 51 occasions and to ‘partial lock-down’ on 31 occasions. It can be assumed that this frequency of lock-downs continued in the further one-month period of August 24 to September 24, 2018. The exhibit indicates that:
(1) lock-downs are generally “the result of Correctional Officer/Staff Redeployment, Searches, Contraband Issues, unscheduled maintenance repairs on unit, etc.” (2) a full lock-down results in an inmate’s loss of the day’s usual 8 hours in the unit dayroom as well as phone use and showers, while a partial lock-down means a lack of release to the dayroom for a part of the day only (3) ordinarily, even during full lock-downs, professional visits were not suspended (4) 50 to 60% of the lock-downs to which the offender was subjected were described variously as “inadequate staff requirements” or “staff shortage” unrelated to staff redeployment to deal with critical incidents or other institutional occurrences.
POSITIONS OF THE PARTIES
The Defence
[ 15 ] On behalf of the offender, Mr. Holder submitted that a sentence of time served would be a fit disposition having regard to the offender’s “exceptional circumstances” including a number of relevant factors such as the offender’s youth, the influence of his cultural background, his potential for rehabilitation, the tasering experience on arrest, the appropriateness of a Nasogaluak acknowledgement of state misconduct in breaching Charter rights of the offender, the efficient manner in which the defence conducted the trial, and a case for enhancement of presentence custody credit.
[ 16 ] Mr. Holder accepted that, while there is a serious gun problem in the GTA, any sentence imposed by this court cannot ignore the rehabilitative potential of the 20-year-old offender. It was submitted that the offender made bad choices and was negatively influenced by poor peer associations as a teenager. He has matured through his time in presentence custody. He is the father of a young child. There are support systems going forward and a genuine intention on the part of the offender to direct himself toward education and employment, not crime.
[ 17 ] Counsel submitted that understanding who Trevon Williams is, as an offender, necessitates consideration of the contextual realities of his being a young black male in Ontario including anti-black racism, poverty, constrained opportunities, and the over-incarceration of African Canadians. To the extent that certain of the offender’s choices in life have been anti-social, including the youth record, it can reasonably be inferred that to some extent those actions were the product of cultural disadvantage.
[ 18 ] It was submitted that the experience of being tasered by the PRPS at the time of arrest deserves to be recognized in the sentencing process as itself a consequence or penalty related to his involvement in crime already imposed by the state on the youthful offender.
[ 19 ] It was argued that in light of the court’s conclusion that the PRPS breached the offender’s s. 7, 10(a) and 10(b) Charter rights, while not resulting in exclusion of evidence, this state misconduct suffered by the offender is properly to be reflected in lessened punishment in sentencing.
[ 20 ] Mr. Holder noted that the defence at trial was conducted on the basis of the offender admitting the essential elements of the crimes while seeking vindication of his constitutional rights through challenge to being tried and alternatively to the introduction of evidence. While technically not a guilty plea, considerable trial time was saved.
[ 21 ] Insofar as the offender’s time in presentence confinement, with in excess of 82 lockdowns at Maplehurst during the offender’s confinement, it was submitted that the harshness of the presentence custody is deserving of an enhancement of credit beyond 1.5:1.
[ 22 ] Mr. Holder made no submissions respecting a lifetime weapons prohibition order, a DNA order, or a forfeiture order respecting the seized firearm and ammunition.
The Crown
[ 23 ] On behalf of the Crown, Mr. Sarantis submitted that a fit disposition would be a penitentiary sentence consisting of a term of 6 years’ imprisonment (4 ½ years (s. 95 offence); 1 ½ years consecutive (s. 117.01 offence); and a concurrent term for the breach of probation conviction) less credit for presentence custody.
[ 24 ] In emphasizing the ongoing crisis of unlawfully possessed firearms in the community, Crown counsel identified a body of appellate jurisprudence which has clearly and consistently directed that denunciation and general deterrence must inform the degree of punishment in such cases in order to effect public safety protection. Except in unusual circumstances, not present in this case, a significant penitentiary sentence is warranted for unlawful possession of a loaded handgun.
[ 25 ] While recognizing the youth of the offender, Mr. Sarantis noted the very short time after release from youth detention custody, subject to the restraint of weapons prohibition orders, before he was out in public, including in a high school, armed with a loaded handgun and additional ammunition. The prior court disposition, including the prohibition orders, in the context of offences of violence including assault with a weapon, had no apparent impact upon the offender’s decision whether to lead a pro-social existence.
[ 26 ] Crown counsel, while accepting of the fact of anti-black racism and the over-incarceration of black males in Canadian prisons, submitted that the record here is scant in terms of connection of the offender’s cultural background to his criminal activities.
[ 27 ] Mr. Sarantis, accepting that rehabilitation prospects exist, submitted that while the offender came from a broken home, his background history does not amount to exceptional circumstances.
[ 28 ] Insofar as the tasering experience, Crown counsel noted that the court’s earlier ruling specifically held that the police use of force was a reasonably justified and necessary enforcement measure and not gratuitous punishment. The state’s lawful employ of reasonable force is not relevant to the sentencing function.
[ 29 ] On the subject of the breaches of the offender’s constitutional rights upon arrest, Mr. Sarantis questioned whether the Charter breaches could be described as relating to the circumstances of the offence or the offender, occurring as they did after the lawful arrest of the offender. In any event, the offender was not prejudiced or injured by the unconstitutional conduct of the PRPS.
[ 30 ] Crown counsel recognized that the defence ran a “clean” trial limiting the litigation to resolution of Charter-breach allegations. That said, the principal constitutional disputes relating to a stay of proceedings and to the existence of grounds for arrest were decided against the defence. There has been no expression of remorse on the part of the offender.
[ 31 ] Crown counsel disagreed that the institutional report form Maplehurst supports an instance of particularly harsh presentence custody deserving of enhanced credit beyond 1.5:1 credit.
[ 32 ] Mr. Sarantis submitted that in addition to ordering forfeiture of the firearm and ammunition, the court ought to order the currency seized from the offender on arrest forfeited as proceeds of crime there being no apparent lawful reason for Mr. Williams to possess that amount of currency.
DISCUSSION
Firearms Crime
[ 33 ] A loaded handgun is not a clothing accessory – it is a device designed to be capable of causing death and injury. As observed in Regina v. Blacksmith, 2018 MBCA 81, at paras. 15-16, “the harm firearms can cause when they are possessed by persons other than registered gun owners” is a “significant” public danger. The pre-eminence of denunciation and general deterrence as sentencing objectives in firearms cases is accepted without controversy. In Regina v. Wilkinson; Regina v. Ali et al.; Regina v. Olawaiye et al., [2009] EWCA Crim 1925, at para. 2, the Lord Chief Justice of England and Wales stated:
The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.
[ 34 ] Unlawful firearms are a scourge to the community and their possession must be stopped by exemplary sentences emphasizing denunciation and general deterrence: Regina v. Mohammed, 2017 ONCA 691, at para. 6 … see also Regina v. Mansingh, 2017 ONCA 68, at paras. 24-25; Regina v. Ellis, 2016 ONCA 598, at paras. 78-80; Regina v. Doucette, 2015 ONCA 583, at paras. 59-60; Regina v. Marshall, 2015 ONCA 692, at paras. 47-49; Regina v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at paras. 77-78.
[ 35 ] Insofar as relevant considerations in firearms cases, a number of factors may be relevant including those described in Regina v. Avis et al., [1997] EWCA Crim 3423, at paras. 2 and 5:
The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes.
The appropriate level of sentence for a firearms offence, as for any other offence, will depend on all the facts and circumstances relevant to the offence and the offender, and it would be wrong for this court to seek to prescribe unduly restrictive sentencing guidelines. It will, however, usually be appropriate for the sentencing court to ask itself a series of questions:
(1) What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use. (2) What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be. (3) With what intention (if any) did the defendant possess or use the firearm? Generally speaking, the most serious offences under the Act are those which require proof of a specific criminal intent (to endanger life, to cause fear of violence, to resist arrest, to commit an indictable offence). The more serious the act intended, the more serious the offence. (4) What is the defendant's record? The seriousness of any firearm offence is inevitably increased if the offender has an established record of committing firearms offences or crimes of violence.
[ 36 ] In Regina v. Nur, 2013 ONCA 677, at paras. 51-54 and 206, Doherty J.A. observed that:
51 The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.
52 There is no doubt that the vast majority of persons charged under s. 95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s. 95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s. 95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore, the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.
53 The reality that the vast majority of s. 95 offenders will be engaged in conduct that would be classified as dangerous and criminal under any definition does not alter the reach of the section as drawn by Parliament. Section 95 applies not only to offenders like the appellant, whose conduct poses an immediate and serious risk to the public, but also to persons whose conduct cannot be said to pose any real risk to the public.
54 The purpose of s. 95 is obvious and non-controversial. All firearms pose a danger, both to users and to others. The possession and use of firearms have been tightly regulated in Canada for many years. Experience teaches that certain kinds of firearms, e.g. handguns, sawed-off rifles, and automatic firearms, are the weapons of choice of the criminal element. Those kinds of firearms pose an added danger to the public. They become even more dangerous when loaded or when useable ammunition is readily available to the person in possession of the firearm.
206 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.
(emphasis added)
[ 37 ] The appeal court in Nur upheld a 40-month sentence for the 19-year-old first offender, a high school student, who pled guilty to possession of a concealed loaded handgun in public. When pursued by the police, Nur threw the .22 calibre semi-automatic handgun he possessed under a parked car. A further sentence appeal, again focused on the constitutionality of the mandatory minimum sentence for a s. 95(1) crime, was dismissed (2015 SCC 15, [2015] 1 S.C.R. 773). McLachlin CJ., at paras. 6, 82 stated:
6 Firearm-related offences are serious crimes.
82 Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade... . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.
(emphasis added)
[ 38 ] The parties here filed books of authorities (Exhibit #s 5 and 6) generally framing a range of sentence of upper reformatory to significant penitentiary sentences for possession of a loaded firearm. Because sentencing is an individualized process, the case-specific facts of not only the offence (as discussed at paras. 35-36 above), but also the specific background and antecedents of the offender before the court, will inform the proportionality analysis within the court’s exercise of sentencing discretion.
[ 39 ] Possession of a loaded firearm is aggravated by the circumstance of being subject to a weapons prohibition order. Always with an eye to the totality of a sentence being a fit disposition, and sensitivity to avoidance of double punishment, it is generally appropriate to make a sentence for breach of a weapons prohibition order consecutive to the head sentence for a firearms crime such as possession of a loaded handgun: Regina v. Ismail, 2018 ONCA 543, at para. 11; Regina v. Maddington, 2009 ONCA 269, at para. 1; Regina v. Houle, 2008 ONCA 287, at paras. 1, 4.
[ 40 ] In balancing various sentencing objectives in a particular case, local circumstances relating to a specific crime may elevate the importance of denunciation and deterrence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 90-95, 102-103. Unlawful possession of firearms in the GTA is a critical societal concern. In this courthouse alone, at both levels of court, we see gun-related prosecutions almost daily.
[ 41 ] While recognizing the gravity of a crime involving a loaded firearm, as a general rule, a first penitentiary sentence to be imposed upon a youthful offender should be the shortest possible sentence, given the gravity of the offence, and which is capable of achieving the relevant sentencing objectives: Regina v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at paras. 36-37. This principle has been uniformly applied: Regina v. Williams, 2018 ONCA 367, at para. 9; Regina v. Bullock, 2017 ONCA 398, at para. 15; Marshall, at paras. 52-53; Regina v. Cotterell, [2004] O.J. No. 3801 (C.A.), at paras. 1-2.
Cultural Background Circumstances
[ 42 ] Unlike the circumstances of Regina v. Crocker, 2018 ONCA 600, the court accepts, as does the Crown, that Mr. Williams is an individual of Aboriginal ancestry. As noted above, a Gladue report was not able to be prepared leaving the court, though sensitive to the intergenerational effects of discrimination and historical abuses of our Indigenous peoples, with essentially no evidence of “any systemic or background factors which may have played a part in bringing this accused before the court”: Regina v. Lavergne, 2017 ONCA 642, at para. 33; see also Regina v. F.L., 2018 ONCA 83, at paras. 38-42, 45, 47; Regina v. Monckton, 2017 ONCA 450, at paras. 101-102, 113-115, 117.
[ 43 ] In the Borde decision, at paras. 2, 17-25, 30, 35, in the context of a youthful black offender, the court considered that, in specific cases, particulars of race and culture, with an appropriate record, could be significant in understanding the background of an offender, the measure of his moral blameworthiness, and the nature of his life-path to the courthouse. See also Regina v. McIntyre, 2018 ONCA 210, at para. 27; Regina v. Rage, 2018 ONCA 211, at paras. 12-14.
[ 44 ] In Regina v. Hamilton and Mason (2004), 72 O.R. (3d) 1 (C.A.), Doherty J.A., after observing at para. 133 that membership in a group “that has historically been subject to systemic racial … bias does not in and of itself justify any mitigation of sentence”, stated at paras. 134 and 137:
[134] A sentencing judge is, however, required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender. That inquiry can encompass systemic racial and gender bias. As the court explained in R. v. Borde, supra, at p. 428 O.R., p. 236 C.C.C.:
However, the principles that are generally applicable to all offenders, including African-Canadians, are sufficiently broad and flexible to enable a sentencing court in appropriate cases to consider both the systemic and background factors that may have played a role in the commission of the offence. . . .
[137] The respondents did not try to forge any evidentiary connection between institutional racial and gender inequality and their particular circumstances. There was no attempt to bring the generalizations set out in the material relied on by the trial judge home to the lives of these respondents. Absent that kind of evidence, the trial judge could not find that the respondents' difficult economic circumstances were the direct result of systemic racial and gender bias.
[ 45 ] Having regard to the insidiously stealthy, subtle and general incalculable impact of racial discrimination, and the uniform guidance of Supreme Court of Canada guidance in the context of offenders of Aboriginal ancestry (Gladue/Wells/Ipeelee) rejecting a straight-line causation analysis, between cultural disadvantage and commission of an offence, before cultural background context is relevant to the sentencing function, the court’s dicta in Hamilton is best understood to mean that the record before the court ought to raise this issue from the general to the specific in the sense of some evidence, direct or inferential, that racial disadvantage is linked to constraint of a particular offender’s choices and to his life experience in bringing him before the court.
[ 46 ] As a young black-skinned male, the offender is a member of a group in the community long the target of racism and discrimination. It is also a notorious fact that black males are disproportionately incarcerated compared to their numbers in the community. The court did not have the benefit of an IRCA (Impact of Race and Culture Assessment), as have some sentencing courts, detailing how a specific black offender’s race and culture might factor into understanding the context of how he came to be before the courts – see Regina v. Jackson, 2018 ONSC 2527; Regina v. Gabriel, 2017 NSSC 90 (conviction appeal dismissed 2018 NSCA 60).
[ 47 ] While the court has, at best, a relatively thin record respecting the impact of the offender’s race and Aboriginal heritage upon his current circumstances, these factors are nevertheless not without some significance in considering the appropriate degree of punishment.
Specific Deterrence
[ 48 ] A prior criminal history, depending upon its content and recency, may be an aggravating factor in sentencing: Regina v. Taylor, [2004] O.J. No. 3439 (C.A.), at para. 39. It must be recognized that Trevon Williams is not a first offender. He has a serious youth record including for assaultive conduct including assault with a weapon. While the offender is not without rehabilitative prospects, specific deterrence is relevant here and the offender is not entitled to the leniency of someone with no criminal history.
Impact of State Conduct
[ 49 ] In appropriate cases, a sentencing court may ameliorate the punishment to be imposed having regard to serious state misconduct, for example breach of constitutional rights, relating to the circumstances of the offender or the offender. In Regina v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 3-4, 47 and 49, the court held that:
3 As we shall see, the sentencing regime provides some scope for sentencing judges to consider not only the actions of the offender, but also those of state actors. Where the state misconduct in question relates to the circumstances of the offence or the offender, the sentencing judge may properly take the relevant facts into account in crafting a fit sentence, without having to resort to s. 24(1) of the Charter. Indeed, state misconduct which does not amount to a Charter breach but which impacts the offender may also be a relevant factor in crafting a fit sentence.
4 Where the state misconduct does not relate to the circumstances of the offence or the offender, however, the accused must seek his or her remedy in another forum. Any inquiry into such unrelated circumstances falls outside the scope of the statutory sentencing regime and has no place in the sentence hearing. Likewise, a reduction of sentence could hardly constitute an "appropriate" remedy within the meaning of s. 24(1) of the Charter where the facts underlying the breach bear no connection to the circumstances of the offence or the offender.
47 The sentencing principles described above must be understood and applied within the overarching framework of our Constitution. Thus it may, at times, be appropriate for a court to address a Charter breach when passing sentence. This may be accomplished without resort to s. 24(1) of the Charter, given the court's broad discretion under ss. 718 to 718.2 of the Code to craft a fit sentence that reflects all the factual minutiae of the case. If the facts alleged to constitute a Charter breach are related to one or more of the relevant principles of sentencing, then the sentencing judge can properly take those facts into account in arriving at a fit sentence. Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". It would be absurd to suggest that simply because some facts also tend to suggest a violation of the offender's Charter rights, they could no longer be considered relevant mitigating factors in the determination of a fit sentence.
49 Provided that the impugned conduct relates to the individual offender and the circumstances of his or her offence, the sentencing process includes consideration of society's collective interest in ensuring that law enforcement agents respect the rule of law and the shared values of our society.
(emphasis of original)
[ 50 ] Recognition of state misconduct, relating to circumstances of the offender or the offence(s) committed, through sentence re-adjustment may relate to non-Charter infringing conduct of state actors after an accused’s arrest: R. v. Foster, 2018 ONCA 53, at paras. 122, 134-135 (leave to appeal refused [2018] S.C.C.A. No. 127).
[ 51 ] The thrust of the Charter non-compliance attack in this case related to grounds for arrest and seizure of the handgun and a submission of excessive force by police offending ss. 7 and 12 of the Charter. These issues were decided in favour of the prosecution. The post-arrest violations of the offender’s right to silence and rights to counsel, while by no means trivial, and not causally resulting in the admission of evidence, were the subject of declarations of Charter non-compliance by the state and public rebuke of the relevant PRPS officers. No further remedy by way of discount of sentence is appropriate in all the circumstances.
[ 52 ] I agree with Mr. Sarantis that the taser-assisted apprehension of the offender is not a circumstance deserving of consideration in this sentencing. Deploy of the PRPS taser, as an intermediate use-of-force weapon, had a temporary incapacitating effect without permanent injury. The court’s stay of proceedings ruling found that use of the weapon amounted to reasonable and necessary force in circumstances of the offender’s own making and not gratuitous pretrial punishment.
Presentence Custody
[ 53 ] Leaving to the side the issue of additional enhanced credit for carceral conditions at Maplehurst, there was no disagreement that, applying the guidance of Regina v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, presentence custody should be credited on a 1.5:1 basis. On that basis, the offender will now have served the equivalent of roughly 34 ½ months’ imprisonment (23 mon. x 1.5).
[ 54 ] While the offender’s stay at Maplehurst was the subject of multiple lock-downs per month, as observed in Regina v. Tulloch, 2014 ONSC 6120, at para. 27, “sporadic lockdowns are simply a reality of remand facilities” often imposed for entirely legitimate institutional objectives related to health and safety. These is no evidence from the offender of any unusual harm or prejudice occasioned by the lock-down frequency. While the percentage of lockdowns referable to staff shortages, whether the result of systemic under-resourcing at Maplehurst or the product of labour unrest and unlawful labour practices, is concerning in circumstances of a youthful, presumptively innocent remand prisoner, I am not satisfied that the case exists for enhancement of presentence custody beyond 1.5:1.
The Fit Sentence
[ 55 ] The aggravating features of this case are manifestly apparent including:
(1) the possession, at the ready, of a concealed, loaded handgun in public places including a high school (2) the offender had a prior criminal history for violence including for assault with a weapon (3) in November 2016, the offender was on probation requiring that he keep the peace and be of good behaviour and subject as well to weapons prohibition orders.
[ 56 ] In the balance, by way of mitigation, these factors are relevant:
(1) at the time of the commission of the offences, the offender was only 18 years of age (2) the trial was conducted in an efficient manner limiting the litigation to resolution of Charter-related issues.
[ 57 ] After 8 court days of Charter-related litigation, the defence confirmed that it intended to adopt a Fegan approach ((1993), , 13 O.R. (3d) 88 (C.A.)) to the case, admitting the existence of evidence supporting proof of the elements of the respective offences while preserving appeal rights respecting any adverse Charter ruling. This saving of further court time and use of resources is deserving of some recognition. There has been no expression of remorse on the part of the offender. The record contains no explanation as to why the offender possessed a concealed, loaded handgun. While not an aggravating feature of the case, the absence of a formal guilty plea or of remorse are essentially neutral factors disentitling the offender to the further mitigatory impact that such circumstances might permit.
[ 58 ] The crime of concealed possession of a loaded firearm in public is an offence of considerable gravity constituting a significance threat to community safety. As a 17/18-year-old young offender, as a consequence relating to guilty findings for a cluster of offences including crimes of violence (assault with a weapon, sexual assault, forcible confinement, assault (x2), utter threats), Trevon Williams spent 12 months in detention at the Roy McMurtry Youth Centre before release on May 31, 2016. A mere 155 days later, when subject to (1) a probation order to keep the peace and be of good behaviour (s. 55(1)(a) Y.C.J. Act) and not to possess a weapon, and (2) to a weapons prohibition order, the 18-year-old offender was armed in public with a concealed, loaded firearm. The deterrent effect of his year in custody and the imposition of weapon prohibition orders, if it existed at any point, was soon lost upon the offender.
[ 59 ] The appropriate punishment for this offender must of course be tempered to a degree by his youth and background circumstances.
[ 60 ] In all the circumstances, a fit and just disposition is a global sentence of 4 ½ years. It is not appropriate to send the offender to the penitentiary. For the possession of a loaded firearm, Count #1, with credit for 34 ½ months’ presentence custody, the offender is sentenced to a further 13 ½ months’ incarceration resulting in an effective sentence of 4 years for this crime. For the s. 117.01 crime, Count #5, the offender is sentenced to 6 months consecutive to the sentence on Count #1. For the breach probation conviction, Count #4, the offender is sentenced to 3 months concurrent to the sentence imposed on Count #1. In the result, with a global sentence of 4 ½ years, the offender will serve a further 19 ½ months, subject of course to custody reduction on the earned remission basis applicable to provincial prisoners.
[ 61 ] The seized handgun and ammunition are ordered forfeited and destroyed. The defence was not called upon respecting the Crown application for forfeiture of the currency seized from the offender at the time of his arrest. There is no compelling record to support a proceeds of crime inference.
[ 62 ] There will be weapons prohibition orders imposed pursuant to ss. 109(2)(a) and (b) for life.
[ 63 ] The s. 95(1) crime is a s. 487.04 “secondary designated offence” (definition (a)). Given the offender’s criminal history and the circumstances of the present offence, it is in the best interests of justice, pursuant to s. 487.051, that a Form 5.04 Order issue for taking of the offender’s DNA at a police or correctional facility.
[ 64 ] In addition, the offender will serve an 18-month probationary term on the mandatory statutory terms in s. 732.1(2) of the Criminal Code and the following optional conditions:
(1) report to a probation officer within 2 working days of release from custody and thereafter as required by probation services (2) remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or your probation officer (3) seek and maintain gainful employment or schooling/employment training.
[ 65 ] Sentence accordingly.
Hill J.
DATE: September 24, 2018
COURT FILE: CRIMJ(P) 367/17 DATE: 2018 09 24 ONTARIO SUPERIOR COURT OF JUSTICE RE: R. v. TREVON WILLIAMS COUNSEL: T. Sarantis, for the Crown G. Holder, for the Defence SENTENCING JUDGMENT Hill J. DATE: September 24, 2018