Her Majesty the Queen v. Samuel Elvira

COURT FILE NO.: CR-18-90000273 DATE: 2018-11-23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – SAMUEL ELVIRA

COUNSEL: T. Brun and V. Rivers, for the Crown A. Mamo, for Mr. Elvira

HEARD: November 6, 2018

REASONS FOR SENTENCE

SCHRECK J.:

[1] Sentencing a youthful first offender for very serious offences presents a sentencing court with the challenge of balancing the competing objectives of giving effect to the principles of denunciation and deterrence with recognizing the importance of ensuring that first sentences of imprisonment should be as short as possible and tailored to the circumstances of the offender. This is such a case.

[2] Following a judge alone trial, Samuel Elvira was convicted of possession of a loaded restricted or prohibited firearm without being the holder of an authorization or a licence, contrary to s. 95(1) of the Criminal Code, possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, and possession of cocaine for the purpose of trafficking, contrary to the same section.[^1] Following are my reasons for the sentence that will be imposed on him for these offences.

I. FACTS

A. The Offences

[3] On May 31, 2017, the police executed a search warrant at the house that Mr. Elvira shared with his brother and two other individuals. In Mr. Elvira’s bedroom, they found a loaded .38 calibre revolver in plain view on the top of a small side table. Also in the bedroom was a jacket that was draped over the back of a chair. In the pockets of the jacket were eight folded pieces of paper, each containing between 0.01 and 0.1 grams of heroin, for a total of 0.38 grams, as well as two packages of cocaine weighing 6.45 and 3.58 grams respectively, for a total of 10.03 grams.[^2]

B. The Offender

[4] Mr. Elvira is 24 years old and has no prior criminal record. He is of African descent, having been born in Angola. He immigrated to Canada with his mother and siblings in 1999. His father remained in Angola and Mr. Elvira has had no contact with him for 14 years. He was raised by his mother, who worked two jobs in order to support herself and her five children. The family lived in community housing, first in the Jane-Finch area of Toronto and then in Regent Park. Mr. Elvira’s mother moved back to Angola when he was 18 years old. Thereafter, he lived by himself or with one of his siblings.

[5] Mr. Elvira had difficulties in school and reports having been the victim of bullying. He experienced problems with motivation. He does not feel that his teachers supported him. He eventually left school without completing his secondary school diploma.

[6] After leaving school, Mr. Elvira obtained some seasonal employment. However, his longest continuous period of employment was for eight months and he has supported himself through social assistance since the age of 21.

[7] Mr. Elvira’s two brothers and two sisters remain supportive of him. One of his brothers has a history of criminal behaviour. The other, with whom he was living at the time of his arrest, obtained a post-secondary education and currently operates two of his own businesses.

II. POSITIONS OF THE PARTIES

[8] Crown counsel submits that denunciation and deterrence should be the primary sentencing objectives in this case and that Mr. Elvira should be sentenced to imprisonment for three and a half years for the firearm offence, four years consecutive for possession of heroin for the purpose of trafficking, and one year concurrent for possession of cocaine for the purpose of trafficking. While this totals seven and a half years, the Crown accepts that this amount should be reduced to six years having regard for the principle of totality. The Crown also seeks various ancillary orders.

[9] Counsel for Mr. Elvira submits that having regard to Mr. Elvira’s status as a youthful first offender and the challenges he faced growing up, including the effects of systemic racism, the global sentence should be imprisonment for two to three years.

III. ANALYSIS

A. General Principles

[10] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. Section 718.1 provides that the sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[11] The various sentencing objectives are often in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be inimical to the rehabilitation of the offender and vice versa. In such cases, the competing objectives must be balanced in a way that respects the principle of proportionality. There is ultimately no one correct way to achieve this balance, which is why sentencing judges are usually given a wide latitude in determining the appropriate sentence in any given case.

B. Aggravating and Mitigating Factors

(i) Aggravating Factors

(a) The Firearm Offence

[12] With respect to the firearm possession charge, it has been recognized that s. 95 of the Criminal Code has a broad scope and captures conduct ranging from “the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade” to “the otherwise law-abiding responsible gun owner” who has a licence but possesses a firearm at a place that falls outside the scope of the licence: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. This case clearly falls at the “true crime” end of that spectrum: R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at para. 49. Mr. Elvira possessed a loaded handgun, a device manufactured for the primary purpose of killing human beings. He had no conceivable legitimate purpose in possessing it. This is a significant aggravating factor requiring an “exemplary sentence” that emphasizes deterrence and denunciation: Nur (C.A.), at para. 206; Marshall, at para. 47.

[13] The Crown submits that given the location where the gun was found, it is reasonable to infer that Mr. Elvira carried it in public. Possession of a loaded handgun in public increases the risk that it will be used to seriously harm another person and is a significant aggravating factor: R. v. Wright, 2018 ONSC 4209, at para. 39; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 15; R. v. Brown, 2013 ONSC 4230, at para. 51; R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.), at para. 25. The fact that the gun was on the table in plain view could give rise to an inference that Mr. Elvira had recently been carrying it. On the other hand, he was not at home when the search warrant was executed and had left the house without the gun, although I note that he was on his way to buy food with his girlfriend and not engaged in any activity where he would have wanted to arm himself. Aggravating factors must, of course, be proven beyond a reasonable doubt. In all the circumstances, I am prepared to give Mr. Elvira the benefit of the doubt on this issue.

[14] That said, this was not a situation where the gun was hidden away. It was readily accessible not only to Mr. Elvira, but to the other people who lived in the house. In this regard, I note that a bulletproof vest was found in the bedroom of one of the other residents.

[15] The Crown also points out that this is a case where the possession of the firearm occurred in the context of drug trafficking. Drugs and guns are a “toxic combination”: R. v. Wong, 2012 ONCA 767, at para. 11. However, while the combination of gun possession and drug trafficking warrants an increased global sentence, in my view it should not be considered as an aggravating factor with respect to the s. 95 offence if, as the Crown requests in this case, the sentences imposed for the drug offences will be consecutive to the sentence for the s. 95 offence: R. v. Graham, 2018 ONSC 6817, at para. 26; R. v. Peterkin, 2013 ONSC 2116, at para. 23.

(b) The Trafficking Offences

[16] With respect to the possession for the purpose of trafficking charges, both involved extremely harmful controlled substances. Heroin has been described as “the most pernicious of hard drugs”, although that label may now more properly belong to fentanyl: R. v. Sidhu (2009), 2009 ONCA 81, 94 O.R. (3d) 609 (C.A.), at para. 12. While not as harmful, cocaine is also a highly addictive and dangerous drug: R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at para. 104.

[17] Mr. Elvira is not an addict-trafficker. He chose to exploit the misfortune of those who suffer from addiction by profiting from their circumstances. He was motivated solely by greed.

(ii) Mitigating Factors

(a) Youthful First Offender and Supportive Family

[18] Mr. Elvira is a youthful first offender. This is a significant mitigating factor: R. v. Brown, 2015 ONCA 361, 126 O.R. (3d) 797.

[19] It appears that Mr. Elvira has a supportive family, which also bodes well for his prospects for rehabilitation.

(b) Remorse

[20] As required by s. 726 of the Criminal Code, at the conclusion of the sentencing hearing I asked Mr. Elvira whether he wished to say anything. He stated that he believed that he has learned from his mistakes and that he wished to live his life differently in the future. He expressed sadness for having put his family through the ordeal of his arrest and trial. While such words are easily spoken, I accept his statements as a sincere expression of remorse. Of course, expressions of remorse made after trial are far less mitigating than the remorse expressed through an early guilty plea.

(c) Systemic Racism and Background

[21] Counsel for Mr. Elvira submitted that the challenges he faced while growing up, including that he suffered the effects of systemic racism, should be treated as mitigating factors in this case. In doing so, she relies on two recent decisions by Nakatsuru J. of this Court: R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167 and R. v. Morris, 2018 ONSC 5186. Crown counsel points out that evidence of the type adduced in those cases is absent here. She also submits that since Mr. Elvira’s brother, who grew up in similar circumstances, is an educated and successful businessperson and not a criminal, this means that Mr. Elvira’s circumstances did not play a role in his criminality.

[22] Crown counsel is correct that evidence of the type adduced in Jackson and Morris does not exist in this case. However, in those cases Nakatsuru J. was prepared to take judicial notice of certain social factors, such as the existence of anti-Black racism and the overrepresentation of African Canadians in the criminal justice system: Jackson, at paras. 81-92. I am also prepared to take judicial notice of these things. One does not have to spend much time working in the criminal justice system to realize that African-Canadians are overrepresented among those accused of crimes. I do not need evidence to draw this conclusion any more than I need evidence to conclude that gun crimes are prevalent in the City of Toronto.

[23] I am also prepared to take judicial notice of the existence of anti-Black racism, as many courts have done: Jackson, at para. 87. No reasonable person can dispute its existence. Based on this, I can infer that Mr. Elvira suffered from the effects of that racism to some degree, although the details and the extent to which he did so has not been established. However, he grew up in the Jane-Finch and Regent Park areas of Toronto, which are well known to be socio-economically depressed areas populated by many members of racialized communities. I have no doubt that Mr. Elvira did not enjoy many of the same advantages that many non-racialized Torontonians from other parts of the city take for granted.

[24] Of course, the fact that an offender is a member of a group that has suffered historical disadvantage is not, by itself, a mitigating factor unless there is some connection between that disadvantage and the particular offender being sentenced: Hamilton, at paras. 133-137. While the Court in Hamilton spoke of an offender’s circumstances being the “direct” result of systemic inequality (at para. 137), I agree with Nakatsuru J. in Jackson, at paras. 111-112, that this does not mean that the offender must demonstrate a direct causal connection.

[25] In this regard, I adopt what was said by Hill J. in R. v. Williams, 2018 ONSC 5409, at paras. 45-47:

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)[^3] 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.

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 R. v. Jackson, 2018 ONSC 2527; R. v. Gabriel, 2017 NSSC 90 (conviction appeal dismissed 2018 NSCA 60).

While the court has, at best, a relatively thin record respecting the impact of the offender’s race … upon his current circumstances, these factors are nevertheless not without some significance in considering the appropriate degree of punishment.

I take a similar view of the impact of Mr. Elvira’s race on his current circumstances in this case. It is not without some significance in considering the appropriate degree of punishment.

[26] Crown counsel submits that since Mr. Elvira’s brother grew up in similar circumstances but became a successful businessperson and not a criminal, it follows that Mr. Elvira’s circumstances growing up played no role in his criminality. With respect, this submission misunderstands the role of adverse personal circumstances in the sentencing calculus as well as the concept of causation. The fact that an individual may have encountered obstacles in his or her life, including the effects of systemic racism, is simply an exemplification of what is sometimes referred to as “sad life mitigation”: R. v. P.V., 2016 ONCJ 64, at paras. 37-100. It recognizes the fact that an offender’s background may affect the degree of his or her moral culpability. However, it does not operate to excuse criminal conduct. Mr. Elvira chose to be a criminal. His brother did not. The issue is not whether Mr. Elvira is morally culpable, but, rather, the degree of that culpability. The fact that others in similar circumstances made different choices does not mean that those circumstances had no role to play in the choices that were made. Were it otherwise, the fact that most Indigenous Canadians do not commit crimes would mean that the principles in Gladue are irrelevant.

C. Relevant Sentencing Ranges

(i) The Section 95 Firearm Offence

[27] As noted earlier, s. 95 offences that fall at the “true crime” end of the spectrum identified in Nur require exemplary sentences. A review of relatively recent trial and appellate decisions suggests that while sentences as low as two years less a day can be imposed in cases with significant mitigating features, the usual range is three to five years: Graham, at paras. 37-38; Marshall, at paras. 53-56; R. v. Mansingh, 2017 ONCA 68, at paras. 21-24; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 128-129; R. v. Carrol, 2014 ONSC 2063, at paras. 21-28.

(ii) Possession of Heroin for the Purpose of Trafficking

[28] The total amount of heroin seized was 0.38 grams. The sentencing range for cases involving one gram to multiple grams of heroin appears to be three to five years: R. v. Banovac, 2018 ONCA 737, aff’g 2016 ONSC 7166; R. v. Fortune, 2011 ONCJ 459; R. v. Brum, 2009 ONCJ 787; R. v. Pimental, [2004] O.J. No. 5780 (S.C.J.); R. v. DaSilva, [2004] O.J. No. 4808 (S.C.J.); R. v. Pham, [2004] O.J. No. 1858 (S.C.J.); R. v. Hamid (1997), 1997 6318 (ON CA), 103 O.A.C. 237; R. v. Farizeh (1994) 79 O.A.C. 399.

[29] In this case, the total amount was less than half a gram. Courts must be cautious in cases such as this not to become fixated on amounts, as the amount seized represents only what the offender happened to have in his possession at the time of the search: R. v. Gabbidon, 2017 ONCJ 55, at para. 11. That said, in my view the small amounts seized in this case should have the effect of lowering the range that would apply for larger amounts. In all the circumstances, I conclude that the appropriate range for possession of less than half a gram of heroin for the purpose of trafficking is two to three years.

(iii) Possession of Cocaine for the Purpose of Trafficking

[30] The total amount of cocaine seized in this case was 10.03 grams. The generally accepted range for possession of an ounce (28 grams) or less of cocaine for the purpose of trafficking is six months to two years less a day: Graham, at para. 47; R. v. McGill, 2016 ONCJ 138, at para. 54; R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15; R. v. Bryan (2003), 2003 24337 (ON CA), 175 C.C.C. (3d) 285 (Ont. C.A.), at paras. 2, 22.

[31] As noted earlier, the sentences for the drug offences should be consecutive to the sentence for the s. 95 offence. These are distinct offences: Graham, at para. 43; Crevier, at paras. 128-129. The Crown acknowledges that the sentences for the two drug convictions should be concurrent.

D. The Appropriate Sentence in This Case

(i) The Appropriate Total Sentence

[32] Having carefully considered the aggravating and mitigating factors in this case, I conclude that sentences at the lower ends of the ranges I have identified are appropriate in this case. In coming to this conclusion, I place particular emphasis on the principle that a first sentence of imprisonment ought to be as short as possible. In my view, the appropriate sentence for the s. 95 offences is three years. For possession of heroin for the purpose of trafficking, the appropriate sentence is two years, to be served consecutively. For possession of cocaine for the purpose of trafficking, the appropriate sentence is one year, to be served concurrently.

[33] This would result in a total sentence of five years. As I will discuss shortly, Mr. Elvira is entitled to some reduction in that amount to give effect to the principle of totality: Graham, at para. 49. However, for reasons that will become clear, I will make the adjustment for totality after I have deducted credit for presentence custody.

(ii) Credit for Presentence Custody and the Principle of Totality

[34] Mr. Elvira has spent 541 days in presentence custody. The parties agree that he is entitled to credit at a rate of 1.5 to one, for a total of two years and three months. Deducting this from the total sentence before any adjustment for totality leaves two years and nine months.

[35] From this, I will deduct nine months to give effect to the principle of totality. While this deduction is somewhat generous, I have arrived at that number in order to be able to impose a total sentence of two years less a day so that Mr. Elvira serves his sentence in a reformatory and so that I am able to also impose a period of probation. Given Mr. Elvira’s background and relative youth, I am of the view that serving his sentence in a reformatory as well as a period of probation would be beneficial to his rehabilitation. The conditions I intend to impose as part of the probation will have the effect of protecting the public. Put another way, I have determined that the benefit of having Mr. Elvira serve a few extra months in prison is outweighed by the benefit of having him subject to the terms of a probation order for a far longer period.

(iii) The Sentence Imposed

[36] For these reasons, for the s. 95 offence, I impose a sentence of three years, less credit for presentence custody in the amount of two years and three months, leaving nine months. For possession of heroin for the purpose of trafficking, the sentence will be 15 months less a day (two years with a totality adjustment of nine months) to be served consecutively. For the possession of cocaine for the purpose of trafficking, the sentence will be 12 months, to be served concurrently. The total sentence left to be served is imprisonment for two years less a day.

[37] In addition to this, Mr. Elvira will be placed on probation for a period of 24 months. In addition to the statutory conditions, he is to report to a probation officer forthwith upon his release from custody and thereafter as directed. He is not to possess any firearms or any weapons as defined in the Criminal Code and he is not to possess any non-medically prescribed drugs. Counsel are invited to suggest any additional conditions.

(iv) Ancillary Orders

[38] As well, there will an order made pursuant to s. 109 of the Criminal Code for life, an order that Mr. Elvira provide a sample of his DNA for inclusion in the national databank, and an order that all of the items that were seized be forfeited.

E. Concluding Comments

[39] Mr. Elvira, you are still relatively young and you will be released from custody in the not too distant future. When that happens, you will have choices to make. You are fortunate that you have a supportive family. With their help, you could decide to make something of yourself and lead a long and productive life. Or you could decide to return to being gun-carrying drug dealer. While you may not realize it, I have shown you a considerable degree of leniency here today. If you choose to continue living your life as you have and find yourself before the court again, I can assure you that no judge will ever show you the same leniency again. Next time, you will find yourself facing a very lengthy and severe penitentiary sentence. I sincerely hope that is not the choice you make. What happens next is entirely up to you.

Justice P.A. Schreck

Released: November 23, 2018.

[^1]: Mr. Elvira was also convicted of possession of a restricted or prohibited firearm while knowingly not being the holder of a licence, contrary to s. 92(1) of the Criminal Code. That count is stayed pursuant to the rule against multiple convictions: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.

[^2]: Mr. Elvira was also charged with possessing other controlled substances that were found in the laundry room of the house and another handgun that was found hidden in a car that was used by Mr. Elvira and the other residents of the house. I was not satisfied beyond a reasonable doubt that Mr. Elvira had knowledge and control of these items.

[^3]: R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433.