COURT FILE NO.: CR-194/17
DATE: 20180406
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW WEIR
Jim Cruess, for the Crown
Susan Pennypacker, for the Accused
HEARD: February 1 & 2, and March 5, 2018
REASONS FOR SENTENCE
garton j.
[1] The accused, Matthew Weir, age 37, has been found guilty of discharging a restricted or prohibited firearm, namely, a handgun, while being reckless as to the life or safety of others, contrary to s. 244.2(3)(a) of the Criminal Code (Count 1 in the indictment). He was also found guilty of four other firearm offences relating to the same incident; namely, use of a firearm in a careless manner contrary to s. 86(3)(a) (Count 2); possession of a loaded prohibited or restricted firearm contrary to s. 95(2)(a) (Count 3); possession of a firearm knowing that he was not the holder of a licence under which he may possess it, contrary to s. 92(3) (Count 4); and possession of a firearm without being a holder of a licence under which he may possess it, contrary to s. 91(3)(a) (Count 5).
[2] Counts 2, 4, and 5 have been stayed on the basis of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729 (S.C.C.).
Circumstances of the Offence
[3] The incident that gave rise to the charges was recorded by a surveillance camera. The surveillance footage shows that on Sunday, May 29, 2016, at 6:15 a.m., Mr. Weir twice discharged a handgun in the air as he walked down a driveway between 24 and 26 Densley Avenue in the area of Keele Street and Lawrence Avenue West in Toronto. 26 Densley Avenue was the location of an after-hours party, which was held in a recording studio at the back of the building. 24 Densley Avenue is the address of the Faith United Ministries Church.
[4] The surveillance footage from earlier that morning shows that Mr. Weir and five of his associates arrived at the after-hours party at around 5:00 a.m. They entered 26 Densley via the back door on the north side of the building, which opens onto a parking lot.
[5] Mr. Weir left the party at 6:11 a.m. The surveillance video shows him interacting in the parking lot for a few minutes with various people, including his associates and a young woman by the name of Sureya Yusuf, before starting to walk south down the driveway toward Densley Avenue and his parked car. It appears from the footage that Ms. Yusuf did not respond in as positive a manner to Mr. Weir’s attempts to interact with her as he would have liked.
[6] At 6:13 a.m., while Ms. Yusuf was standing at the back of a parked truck, Mr. Weir came up behind her and placed his left arm over her left shoulder, while holding a red cup in his right hand. Ms. Yusuf appears to try to move forward or pull away from him. One of Mr. Weir’s associates then took the cup from Mr. Weir’s hand, which enabled Mr. Weir to place his right arm over Ms. Yusuf’s right shoulder. At that point, Mr. Weir was behind Ms. Yusuf and was leaning down or over her. His arms were around her shoulders and partly over her arms. Ms. Yusuf took a step back from Mr. Weir, and adjusted the left shoulder of her sweater. As she was walking in front of him, Mr. Weir bent down, as though he was going to try to lift her up. Ms. Yusuf backed away and pushed his left shoulder with her right arm. As she turned her back to him, Mr. Weir leaned over and put his arms around her waist, again as though he was going to try to lift her. Again, Ms. Yusuf backed away. As she moved out of range of the camera, Mr. Weir was moving his arms up and down in the air in a lifting motion. He went off screen at 6:13:50. About one minute later, he came into range of the camera that captured him discharging the handgun in the air as he walked south along the driveway.
[7] The surveillance footage shows that at 6:15 a.m., Mr. Weir pulled a handgun from the front waistband of his shorts, raised his arm over his head, and discharged the gun in the air. After briefly lowering his arm to his side, he again raised it over his head and discharged the gun a second time. Mr. Weir continued walking south. As he was about to exit the driveway, he returned the handgun to his waistband. He crossed the street and got into his car. His five associates joined him and Mr. Weir drove away from the scene.
[8] People who were walking in the driveway reacted immediately to the gunfire. Several people ducked their heads, hunched over, and brought their arms to their chests. Some also ran for cover behind or in between parked vehicles. One male pulled up his t-shirt twice, and looked at his stomach, presumably to see whether he had been shot. Another male, who had been sitting on the lawn in front of the church at 24 Densley Avenue, ran across the street and away from Mr. Weir.
[9] On June 12, 2016, the police observed Mr. Weir driving in the area of Lawrence Avenue West and Keele Street. They boxed in his car and executed the warrant for his arrest without incident.
[10] Mr. Weir has remained in custody since his arrest, or for a period of 664 days. Based on a ratio of 1.5:1, this is the equivalent of a sentence of just under 2 years and 9 months.
[11] Mr. Weir has never disclosed any information to the police regarding the whereabouts of the handgun.
[12] The firearms expert called as a Crown witness at trial testified that discharging a gun in the air is not a safe practice, as there is a danger that the bullet, upon falling back down to the ground, could strike an individual or object.
Circumstances of the Offender
[13] Mr. Weir, who was 35 years old when he committed these offences, was born and raised in Toronto. His father left Canada before he was born, and currently lives in New York City. Mr. Weir advised the author of the pre-sentence report (“PSR”), Adrienn Szkok, that he wondered as a child why his father had left and “didn’t want me.” It was not until he was 29 years old that he met his father, as well as two half-sibling, through an online messaging program. When Mr. Weir is not in custody, he maintains some contact with his father.
[14] Mr Weir was raised by his mother, Sonja Weir, who relied on social assistance to support the family. When he was four years of age, his older sister, who was 16, passed away, leaving a 5-month old son. Mrs. Weir raised the child. Mr. Weir advised that he considers his nephew to be like a brother, and they are apparently very close. His nephew is currently incarcerated for an unrelated matter.
[15] Mr. Weir described himself to Ms. Szkok as rebellious and looking for a father figure as he was growing up. Although his mother was supportive, she could not control him. Once he started going outside, he was influenced by others, whom he now realizes were using him. In 1998, Mr. Weir himself was the subject of violence, when he was shot in the leg.
[16] Mr. Weir’s Youth Court record began in 1994, when he was 13 years old. His adult record commenced in 1999, when he was 18 years old. When he was 22 years old, he was convicted of manslaughter and aggravated assault, both of which involved the use of a firearm. He received a global sentence of ten years, in addition to time served in pre-trial custody.
[17] The current charge is Mr. Weir’s third conviction for a firearm offence. He was under a firearm prohibition order at the time.
[18] Mr. Weir’s criminal record is as follows:
Youth Court Record
January 1994: Fail to Comply with a Recognizance – 12 months’ probation
March 1996: (1) Robbery (2 counts) – 1 month secure custody
(2) Possession of a Weapon – 5 months open custody & 16 months’ probation and firearms prohibition
January 1997: (1) Trafficking in a Narcotic (2 counts) and
(2) Escape Lawful Custody – 5 months secure custody, and 2 months open custody on each charge concurrent, plus time served
May 1997: Possession of Credit Card Obtained by Crime – 1 day open custody (time served: 6 months open custody) plus probation for 19 months
Adult Record
August 1999: Obstruct Police – suspended sentence and probation for one year (4 days PTC)
January 2001: (1) Assault Peace Officer
(2) Possession of Prohibited or Restricted Firearm with Ammunition – one year concurrent on each charge (2 months and 15 days PTC), plus prohibition order under s. 110 for life
March 2003: Manslaughter (Firearm) – 10 years (348 days in PTC)
Aggravated Assault – 9 years concurrent, plus s. 109 prohibition order
August 2005: Possession of Schedule II substance – 15 days
Nov.10, 2009: Statutory Release
March 15, 2010: Parole suspension
May 11, 2010: Released
May 31, 2011: Parole suspension
Sept. 7, 2011: Statutory Release Violation - Recommitted
Aug. 10, 2012: Released
May 2015: Possession of Controlled substance for the purpose of trafficking – 1 year imprisonment
[19] The 2001 convictions for assault police and possession of a prohibited weapon with ammunition arose from a traffic stop. According to defence counsel’s summary of the facts, the officer detected the smell of marijuana in the car. Mr. Weir, who had a handgun in his waistband, tried to flee the scene. A struggle ensued, during which he elbowed the officer in the face. Mr. Weir denied that he was reaching for the firearm during the struggle. Mr. Weir pleaded guilty to these offences.
[20] The manslaughter and aggravated assault convictions arose after an argument in a night club. Ms. Pennypacker summarized the facts of these offences as follows. The deceased, Ms. Roach, was a friend of Mr. Weir. He had hugged her while they were in the club, which gave rise to another individual becoming jealous. This conflict flared up again in the parking lot, where two or three people, one of whom was Mr. Weir, began to fire their guns. Mr. Weir shot a male in the leg. A bullet hit Ms. Roach in the head. The vehicle in which she was seated moved forward and then rolled over. Police arrived on scene quickly. For some reason, Ms. Roach did not get immediate medical attention and she died. Mr. Weir and two other males pleaded guilty to manslaughter. He and one of those males admitted to being a shooter. Each received a sentence of 10 years. The third male, who did not admit to being a shooter, received a sentence of 9 years.
[21] As Mr. Weir’s record indicates, he was suspended twice while on statutory release. The first suspension was on March 15, 2010, when he was found to be associating with a fellow resident of a halfway house outside the facility, which was contrary to the rules of the halfway house. This suspension ended in a reprimand and the imposition of a further condition. He was released on May 11, 2010.
[22] The second violation occurred about a year later, on May 31, 2011. Police attended at the residence of Mr. Weir’s co-accused in order to execute an arrest warrant. When the co-accused returned home, Mr. Weir was also in the vehicle. Mr. Weir jumped out and fled the scene. A foot chase ensued. There was speculation that Mr. Weir discarded a weapon but none was recovered. When apprehended, Mr. Weir was in possession of $1500. This led to the revocation of his statutory release.
[23] The PSR indicates that when Mr. Weir was 17 years old, he left home and moved in with his girlfriend, Clemencia Stewart. They lived together until he was 21, when he was arrested on the charges of manslaughter and aggravated assault. In 2012, when he was near the completion of his penitentiary term and living in the community, he indicated that he wanted to return to live with Ms. Stewart. He and Ms. Stewart resided together until 2015, when Mr. Weir was incarcerated with respect to the charge of possession for the purpose of trafficking. He was released in 2016 but, five months later, was arrested on the present offences.
[24] Mr. Weir and Ms. Stewart have four children, who are 20, 17, 13, and four years of age. Ms. Stewart advised that Mr. Weir’s incarceration has been hard on the children. She described Mr. Weir as a good father, who engages with his children when he is not in custody. Ms. Stewart remains supportive of Mr. Weir, although she also stated that she is “really losing hope with his … getting incarcerated all the time.” When Mr. Weir is not around, all the “pressure” is on her, which she finds “stressful and depressing.”
[25] Ms. Stewart also advised that Mr. Weir has a 16-year-old son from another relationship, and that he maintains contact with this son.
[26] Mr. Weir left school after completing grade nine. According to his mother, he got into fights at school, and was suspended a couple of times. In 2009, while incarcerated at the penitentiary, he obtained his Ontario Secondary School Diploma. Mr. Weir indicated that he aspires to take courses in business management in the future, and to start his own construction company.
[27] Other courses or programs completed by Mr. Weir while serving his 10-year sentence include the following:
i) Moderate Intensive Family Violence Prevention Program (November 2007);
ii) National Employability Skills Program (July 2008); and
iii) Violence Prevention Program – Moderate Intensity (February 2009).
[28] Mr. Weir also completed the Community Maintenance Program in December 2010, while on statutory release. Following his second statutory release, he again completed this 12-session course. His performance report states that he completed all the written assignments, was open to the program, and demonstrated a positive attitude. When presenting his self-management plan to the program group, he identified his risk factors for crime as money and employment, negative friends and associates, where he resides, and how he spends his leisure time.
[29] Records from Correctional Services Canada (“CSC”) indicate that after pleading guilty in August 2005 to possession of a Schedule 1 substance and receiving a 15-day consecutive sentence, Mr. Weir was transferred to Collins Bay Institution. While there, he was identified as being involved in the institutional drug subculture.
[30] After his statutory release in November 2009, Mr. Weir worked as a forklift driver in a furniture factory. After being re-incarcerated for 14 months following a statutory release violation, Mr. Weir was released to a Hamilton halfway house, and got a job at a recycling plant. He worked there from August 2012 to July 2013, when the company went out of business.
[31] From April to July 2013, Mr. Weir attended bi-weekly counselling and mentoring sessions with a social worker, Chris Harris, whose assistance he sought with respect to his reintegration into the community. A letter from Mr. Harris indicating the progress Mr. Weir made during that period has been filed as an exhibit. Mr. Harris noted the good impression that Mr. Weir made on his employer at the time.
[32] In 2013, Mr. Weir began working for Jerron Alexander, who runs the construction firm, “Alexander’s Property Solutions.” Mr. Weir has worked on and off for Mr. Alexander since that time, and indicated his intention to return to work for him upon his release. Mr. Alexander described Mr. Weir as a good worker with a lot of potential, and stated that he is prepared to hire him back whenever he is able to return to work.
[33] At the time of his arrest in June 2016, Mr. Weir was on social assistance.
[34] Mr. Weir indicated to Ms. Szkok that he did not regularly consume alcohol, but would drink on weekends. He advised that he has never had an issue with alcohol, and that his alcohol use has never affected school, work, or relationships. However, it is apparent from Mr Weir’s statement to the court following the submissions of counsel that he has gained a great deal more insight into his problematic use of alcohol. Mr. Weir advised the court as follows:
One of my first steps is to identify the problem. … Then I have to be open to revealing the problem to other people even if it causes additional work or additional problems or additional restrictions on my freedom.
I have to be willing to put myself out there to be fixed. I want to put myself out there to be fixed.
I see that when I was released from jail, I fell back into old habits. I just got into the same patterns. I hung around with people who did not encourage me to do better. I did not encourage myself to do better. I went to places that were not safe and required me to bring protection, and I was drinking regularly.
I have paid close attention to the video at the party that night. It was hard to watch it over and over again during this trial. I saw my face and my body language. I saw myself carrying drinks. I was drinking excessively. I know how I react to alcohol. I usually become aggressive when I’m drinking. I wasn’t angry. I can see myself smiling on the video, but I did not back off when Ms. Yousef tried to push me away. I was touchy-feely, and I kept trying to grab her to dance. I fired the gun in the air as … an act of aggression. I drove aggressively too.
I did not see alcohol as a problem before. I believe that it is a part of the problem. If I don’t say anything, I am afraid that it will not be addressed. I’m afraid that if I don’t tell you that alcohol might be one of my issues, then I will get away with it, and leave it unexamined, and I won’t actually get the help that I need.
[35] Ms. Stewart, like Mr. Weir himself, identified his friends as having a negative influence on him. She stated that when they moved from Toronto to Kitchener, and away from those friends, “things were good.”
[36] Mr. Weir advised Ms. Szkok that when he is stressed or angry, he will “shake it off.” He professed to have good mechanisms as he “self-talks” or, in the alternative, will talk to Ms. Stewart about issues. Although he indicated that he was not an angry person, when he does get angry, he knows it is a “red zone” and will “self-talk.”
[37] Ms. Szkok expressed some concern with respect to Mr. Weir’s lack of insight into his criminal conduct. He did not take responsibility for the offences, and declined to comment on them. However, as is evident from the above excerpts from his statement to the court, Mr. Weir now admits his guilt and takes responsibility for his actions. In the following excerpt, he also offered an apology, which I take as sincere:
I’ve had a lot of time to think about my actions while I’ve been in custody. I understand that I keep doing – I can’t keep doing the same thing and get a different result. This means that I have to work on myself to change. It also means that I have to look at my flaws and be unafraid to ask for help.
I was wired the wrong way. I grew up on the streets. Guns and violence for protection were normal. At 12 years old, I was hanging out with gangsters, dealers and bad guys. They taught me to man up and toughen up.
My mom couldn’t control me. At some point, I realized that I was more physically powerful that my mom. I would just run out and she couldn’t chase me. Looking back, I can now see what she had been trying to teach me all along.
I have been trying to rewire myself. Sometimes it’s complicated and I make mistakes. I thank God that nobody was hurt when I fired that gun in the air.
I apologize for my actions. I heard the Crown talking about me. The things he said are hard to hear. When I was a younger man, I would have thought it was cool to be called a menace. I don’t think it’s cool. I want to prove him wrong.
I know that I have to open up myself. I have to open myself up if I’m ever going to make the changes that I need to make. I promise that I will not stop taking a hard look at myself so that I can make these changes. I have decided that it is more important to me to take hard steps to make lasting changes than it is to avoid being called a menace or a person with serious problems.
I owe this to my family and my children. I owe this to myself and the community. I dedicate this battle to my children and to my job to be a proper father to my children. Their energy sounds low when I talk to them. I fear that I am the cause of their lack of energy in the community. I will not let this happen again.
Position of the Parties
[38] The position of the Crown is that a sentence of 12 to 14 years for the offence of discharging a handgun while being reckless as to the life or safety of others is appropriate in the circumstances of this case. The Crown also seeks a 9-year concurrent term for the offence of possession of a loaded prohibited or restricted firearm.
[39] The position of the defence is that a sentence in the range of 6 ½ to 8 years would be fit and proper.
[40] Defence counsel began her submissions with the proposition that the Crown ought not to be able to resile from the position that it took with respect to sentencing at the judicial pretrial (“JPT”), and therefore ought not to be able to argue that a sentence of 12 to 14 years is appropriate. The Crown who conducted the JPT (who was not Mr. Cruess), indicated that the Crown would be seeking a sentence of “8 to 10 years or more” after trial.
[41] I will address this issue before reviewing the sentencing positions of counsel in more detail.
[42] A statement at the top of the page of the JPT form dealing with resolution discussions indicates that this particular page is not to be provided to the trial judge, and should be kept in a secure location to be made available on request of a judge, e.g., for future resolution discussions. The form, under the heading “Sentencing position” states as follows:
Crown position on sentence on plea(s) of guilty before trial date set based upon information currently known to the Crown:
Pleas(s) on which counts: Reckless Discharge of prohibited or restricted firearm – Reckless
Sentence: Joint – 6 ½ years jail; Open – 7 ½ years
If time limited, how long does this sentence position remain open? Until trial date is set.
[43] At the bottom of the form, the position of the Crown after trial is set out:
Crown position on sentence after trial based upon information currently known to the Crown: 8 to 10 years jail or more, plus all relevant corollary orders.
[44] Defence counsel does not take the position that there has been prosecutorial misconduct, improper motive, or bad faith. There is no abuse of process application before the court. However, Ms. Pennypacker argues that accused persons, when deciding whether to plead guilty or to proceed to trial, take into account the sentencing position of the Crown. It was submitted that in this case, the numbers “8 to 10 years” are specific or defining numbers, and the words “or more” imply that the Crown would only seek a sentence in excess of ten years if there was some material change or a factual issue that gave rise to an aggravating factor. It was submitted that there has not been any material change, and that the Crown should therefore not be permitted to seek a sentence that exceeds ten years.
[45] I would not give effect to this argument.
[46] I would first observe that a trial judge is not bound by submissions made at a JPT: R. v. Tallon, [2003] O.J. No. 5121 (Ont. C.A.), at para. 5. I also note that resolution discussions are subject to settlement privilege, which is the reason why the page under discussion is removed and not provided to the trial judge. Resolution discussions should have no bearing on the trial judge’s decision. Defence counsel has not provided the court with any case law to support the proposition that a sentence should somehow be pegged to what may have been said during resolution discussions.
[47] Second, there is no basis, in my view, to find that the words “8 to 10 years or more” implied an undertaking by the Crown not to seek a sentence of more than 10 years unless there was a material change giving rise to an as yet unknown aggravating factor.
[48] Third, there has been no repudiation of the position taken by the Crown at the JPT. Mr. Cruess’ position is consistent with the plain meaning of the words in the JPT form: “8 to 10 years or more” includes a sentence of 12 to 14 years.
[49] Even if Mr. Cruess’ position on sentence could be interpreted as different or a departure from that of the Crown at the JPT, this is not a case where the Crown has resiled from a joint submission or any other agreement. The decision in Tallon is applicable in this regard. In Tallon, the Crown at the JPT sought an eight-year sentence, while defence counsel asked for four to six years. Later on, a different, more experienced Crown, took carriage of the case and sought 12 years. At para. 14, the court stated:
[T]his is not a case where the Crown resiled from a joint submission or any other agreement reached at the pre-trial hearing. Therefore, the very strong recommendations in The Report of the Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions: (Toronto, 1993), chaired by G. Arthur Martin, that Crown counsel should only repudiate a resolution agreement in very rare circumstances had no application.
[50] Finally, assuming that Mr. Cruess, in seeking a sentence of 12 to 14 years, is resiling from an implied undertaking not to ask for such a sentence, that decision can only be reviewed under the doctrine of abuse of process, as it is an act of prosecutorial discretion. I rely on the decision of R. v. Nixon, 2011 SCC 34 in this regard.
[51] In Nixon, the appellant was charged with several offences, including dangerous driving causing death, dangerous driving causing bodily harm, and parallel charges for impaired driving. Counsel entered into a written agreement regarding a plea to a charge of careless driving. The Acting Assistant Deputy Minister (“ADM”), based on the results of additional legal opinions, concluded that Crown counsel’s assessment of the strength of the case was flawed, and that a plea to careless driving in the circumstances was contrary to the interests of justice. He instructed Crown counsel to withdraw from the resolution agreement and to proceed to trial on the dangerous driving charges. Nixon brought an application under s. 7 of the Charter, seeking a court direction requiring the Crown to complete the agreement. The application judge concluded that the Crown’s repudiation of a plea agreement was an abuse of process in breach of Nixon’s rights, and directed the Crown to honour the agreement.
[52] The Court of Appeal overturned the application judge’s decision, holding that the repudiation of a plea agreement is a matter of prosecutorial discretion, reviewable only for abuse of process. It held that the application judge erred in testing Crown counsel’s decision against a “reasonably defensible” standard. Rather, the application judge should have reviewed the circumstances surrounding the subsequent decision to repudiate. The relevant inquiry for abuse of process under s. 7 was whether there was conduct which either caused prejudice to the accused by rendering the trial unfair, or affected the integrity of the justice system itself. In the absence of prejudice which rendered the trial unfair, there had to be proof of prosecutorial misconduct, improper motive or bad faith in the approach, circumstances or ultimate decision to repudiate. It found no evidence to support a finding of abuse of process in the circumstances of the case and ordered a new trial.
[53] The Supreme Court dismissed Nixon’s appeal. It held that the Court of Appeal correctly found that the application judge applied the incorrect test for abuse of process, and that there was no basis for finding that the appellant’s s. 7 rights were breached. The ADM’s decision to repudiate the plea agreement constituted an act of prosecutorial discretion, and was only subject to judicial review for abuse of process. While a plea agreement could not be summarily enforced by the court as any other lawyer’s undertaking, its binding effect was a matter of utmost importance to the administration of justice. Evidence that a plea agreement was reneged provided the requisite evidentiary threshold to embark on a review of the decision for abuse of process. The test for abuse of process was whether compelling an accused to stand trial would violate the fundamental principles of justice, or where the proceedings were oppressive or vexatious. In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, or ultimate decision to repudiate, the decision to proceed with the prosecution was the Crown’s alone to make. The ADM, in good faith, determined that Crown counsel’s assessment of the strength of the evidence was erroneous and concluded that it would not be in the public interest to terminate the prosecution. At para. 68, the Court observed:
Reasonable counsel may indeed, and often do, differ on whether a particular disposition is in the public interest in the circumstances of the case. The ADM, in good faith, determined that Crown counsel’s assessment of the strength of the evidence was erroneous and, on that basis, having regard to the seriousness of the offences, concluded that it would not be in the public interest to terminate the prosecution on the criminal charges. This can hardly be regarded as evidence of misconduct.
[54] In the present case, defence counsel has not brought an abuse of process application alleging prosecutorial misconduct, improper motive or bad faith. In the absence of such an application, there is no basis to assert that Crown counsel’s position on sentence must be pegged to an earlier position taken by another Crown at the JPT. In addition, Mr. Creuss has provided comprehensive submissions and case law as to why he is seeking a sentence of 12 to 14 years. From a practical point of view, it would seem that the Crown who has conducted the trial may well have a better sense of a case than the pre-trial Crown.
[55] For these reasons, I reject the defence argument that the Crown should not be permitted to seek a sentence that exceeds ten years, or that the sentence imposed must be somehow pegged to resolution discussions that took place at the JPT.
[56] I return then to the counsels’ respective positions on sentence.
Position of the Crown
[57] As stated, the Crown seeks a sentence of 12 to 14 years for the offence of discharging a handgun contrary to s. 244.2 (1), and a 9-year concurrent term for the offence of possession of a loaded prohibited or restricted firearm.
[58] Crown counsel noted that the seven-year minimum sentence for a second offence, pursuant to s. 244.2 (3) (a)(ii) of the Code, is not applicable in this case, as more than 10 years have elapsed between the date that Mr. Weir was convicted of manslaughter, that is, March 4, 2003, and the date on which he was convicted of the present offence of discharging a firearm, which was on December 20, 2017. However, the minimum sentence of five years pursuant to s. 244.2 (3)(a)(i) still applies.
[59] Crown counsel submits that Mr. Weir falls into the category of “worst gun offender.” Mr Cruess referred to the 2001 convictions for assaulting a police officer and possession of a loaded prohibited firearm, for which Mr. Weir received a one-year sentence on each charge. In 2003, he was convicted of manslaughter and aggravated assault arising from his firing of a gun in a dispute in a parking lot outside a club. Mr. Weir is now before the court for the third time with respect to a firearm offence, which involved discharging a gun into the air for no reason other than the fact that a young woman rebuffed his advances. At the time that he committed the current offences, Mr. Weir was the subject of a s. 109 prohibition order. In addition, Mr. Weir has a history of being active in the drug trade while both in and out of custody.
[60] Crown counsel submits that an exemplary sentence emphasizing deterrence and denunciation is called for in this case. Mr. Weir is someone who has demonstrated that when he is not in custody, he has guns and is prepared to use them. It is necessary to separate him from society for a significant period of time.
[61] Crown counsel referred to R. v. Slack, 2015 ONCA 94, at paras. 23-28, where the Court stated that offenders convicted of “truly criminal conduct” in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation.
[62] Mr. Cruess also referred to R. v. Abdullahi, 2014 ONSC 272, and R. v. Barton, 2017 ONSC 4039, where the impact of firearms in Canada and, in particular, Toronto, is discussed.
[63] In Abdullahi, at paras. 13-15, McWatt J. stated as follows:
The Supreme Court of Canada, in 1993, distinguished a firearm from any other objects able to be used as a weapon. It said, “No matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence.” [R. v. Felawka, [1993] 4 S.C.R. 199 (S.C.C.) at para. [21]](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii36/1993canlii36.html#par21)
The Ontario Court of Appeal in R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.) at paras. 77 and 78 endorsed the trial judge’s comments as follows about the prevalence of firearms in Toronto:
Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns.
There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.
Courts in Toronto and throughout Canada have endorsed this sentiment on numerous occasions since. In R. v. Chin, 2009 ABCA 226, [2009] A.J. No. 711 (Alta. C.A.) at para. 10, the Alberta Court of Appeal found that carrying a loaded restricted or prohibited firearm is an extremely dangerous act for which there is absolutely no justification.
[64] More recently, Akhtar J., in Barton, at para. 64, described the presence of guns in Toronto as follows:
The possession of guns in the Greater Toronto Area is no longer an event that surprises these courts. The use of illegal firearms in this city has been the subject of much judicial condemnation, yet its prevalence appears to show no sign of abating. Guns exist to injure, maim, and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents, and children suffer the trauma of a loved one lost to mindless violence wrought by the use of firearms. Witnesses to the use of these weapons may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences. Regrettably, a small minority of our society chooses to ignore that message. Zachary Barton appears to be one of these offenders.
[65] Mr. Creuss submits that Mr. Weir, who is a repeat offender, is also one of those individuals. He argues that Mr. Weir is unrepentant, took no responsibility for the offences when speaking to the author of the PSR, and demonstrates no insight into his behaviour. His comment to Ms. Szkok that he was being punished for “acting like an idiot” indicates that he does not comprehend the serious nature of the offence that he has committed.
[66] Mr. Cruess reviewed the aggravating factors in this case. There was a real danger to the public when Mr. Weir discharged a firearm on a Sunday morning as he was walking by a church. He had no reason to discharge the gun, other than being angry that Ms. Yousef had rebuffed him. Mr. Cruess queried how much angrier Mr. Weir would have had to be before he chose not to point the gun in the air but to point it at a person. Mr. Weir was subject to a firearm prohibition order at the time. He has not provided any information that would assist the police in recovering the gun, which presumably is still out on the street.
[67] Mr. Cruess noted the entries in Mr. Weir’s criminal record that involve violence. It is clear that Mr. Weir is also involved in the drug trade. He was charged with the present offences just five months after he finished serving a one-year sentence for the offence of possession for the purpose of trafficking. Mr. Cruess argues that the sentences that Mr. Weir has previously received have not deterred him from committing further offences.
[68] Crown counsel indicated that he was unable to find any cases where an offender who had previously been convicted of causing the death of an individual by use of a firearm had, following their release from custody, committed the offence of once again discharging a firearm. The case that comes the closest to that scenario is the sentencing decision of Corrick J. in R. v. Kreindl, 2016 ONSC 4576.
[69] In 1993, Kreindl was convicted in the United Kingdom of murdering his common law partner and mother of his two-year old child by bludgeoning her to death with a hammer. He served 20 years in prison, and was deported to Canada in June 2012. In April 2014, Kreindl shot a woman in the face with a flare gun. The woman, whom he had been dating for few months, suffered what can only be described as horrendous injuries. The Crown in Kreindl asked the court to impose the maximum sentence of 14 years for aggravated assault. In considering this submission, Corrick J., at paras. 19-21, stated as follows:
… The historical notion that the maximum sentence must be reserved for cases involving the worst offender and the worst offence was rejected by the Supreme Court of Canada in its 2004 decision of R. v. Cheddesingh. Chief Justice McLachlin, writing for a unanimous court, indicated that terms such as “worst offender”, “worst offence” and “stark horror” add nothing to the analysis of determining the appropriate sentence in any case, and should be avoided. Rather, maximum penalties are appropriate if the offence is sufficiently grave and the offender is sufficiently blameworthy. The Chief Justice acknowledged that maximum sentences are exceptional and would be imposed only rarely.
Four years later, Justice LeBel, in R. c. M.(L.), wrote at para. 22, “thus, the maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.”
Proportionality remains key. If, after considering all of the relevant principles and factors, it is determined that the maximum penalty is warranted, it must be imposed.
[70] Corrick J. determined that the maximum sentence of 14 years with respect to the offence of aggravated assault was appropriate in all of the circumstances, including the degree of planning involved in the commission of the offence and the low prospects for the accused’s rehabilitation. A concurrent sentence of 7 years was imposed on the charge of discharging a firearm with the intent to wound. Consecutive sentences of six months on each of the two counts of failing to appear in court were also imposed.
[71] In support of his position that an exemplary sentence is warranted in the present case, Mr. Cruess observed that the 10-year sentence (plus time served in pretrial custody) imposed on Mr. Weir in 2003, and the year-long sentence imposed for the drug offence in May 2015, failed to deter him from carrying a loaded handgun in May 2016, and discharging it for no reason in a public area.
[72] Mr. Cruess questioned whether the support that Mr. Weir could receive in the community would be sufficient to deter him from committing further offences. He noted that Ms. Stewart’s support appears to be waning as a result of Mr. Weir’s re-incarceration. He also submits that Mr. Weir’s mother demonstrated a lack of insight into her son’s criminal activity and appears to turn a blind eye to it. Sonja Weir reportedly told Ms. Szkok that it was unfair that “they” are asking for eight years imprisonment as Mr. Weir “never killed anybody” in this case. The other person with whom Mr. Weir is close – that is, his nephew – is currently incarcerated.
[73] In addition to the cases already cited, Crown counsel relies on the following decisions: R. v. Alexander, 2013 ONSC 171; R. v. Brown, 2010 ONCA 745; R. v. Dunkley, 2014 ONSC 3922; R. v. Johnson, 2010 ONSC 3213, aff’d 2013 ONCA 177; R. v. Kreko, 2016 ONCA 367; and R. v. Ward-Jackson, 2018 ONSC 178.
Position of the Defence
[74] The position of the defence is that a sentence in the range of 6 ½ to 8 years would be appropriate in all of the circumstances.
[75] Ms. Pennypacker observed that although Mr. Weir did not plead guilty, the defence made many sensible concessions by way of the agreed statements of facts: Exhibits 1 and 10. She noted that the firearms expert, Ms. Dann, did not provide an expert report prior to trial, and that the defence did not receive her PowerPoint presentation until after the trial had commenced. The defence did not seek an adjournment, but continued on with what was a very focused trial. Identity was not in issue as Mr. Weir conceded that he was the individual seen in the surveillance footage. The main issue and focus of the trial was whether the object in Mr. Weir’s hand, as seen in the video, was a gun. As Ms. Pennypacker put it, it was as close as you can get to a guilty plea and still have a trial.
[76] Mr. Weir, through his counsel, as well as in his statement to the court, has acknowledged his guilt and admitted that he discharged the gun. Ms. Pennypacker advised the court that Mr. Weir is disgusted by his own actions – hence his comment to Ms. Szkok that he “acted like an idiot.” He followed up that comment with the statement, “If you know better, you have to do better,” and went on to say that he needs to be responsible and to be in control. As a result of his irresponsible actions, he is now in prison and away from his children. Mr. Weir told Ms. Szkok that he knows the importance of having a father in one’s life, as he grew up without one. It is therefore particularly painful and upsetting to him that his own children are now in the same position as a result of his irresponsible behaviour.
[77] Ms. Pennypacker noted that Mr. Weir’s references to “self-talk” and “red zones” when speaking to Ms. Szkok refer to his methods of coping with anger or negative thoughts. He has learned about these terms and techniques during his various periods of incarceration, although they were obviously not successfully applied by him on May 29, 2016, as the present offences demonstrate. I would also observe that Mr. Weir’s statements to Ms. Szkok that he has good coping skills and is not an angry person demonstrate a certain lack of insight into the root causes of his criminal behaviour.
[78] Ms. Pennypacker pointed out that Mr. Weir, when stressed, will sometimes use Ms. Stewart as a sounding board. He also has a good relationship with his mother, whom he described as “wise” and as someone who is always able to suggest a remedy for any problem he may have.
[79] Ms. Pennypacker submits that Mr. Weir recognizes that he suffers from a lack of confidence when he is in the community. He does not feel like a “co-equal” member of the community because of the amount of time he has spent in custody. This was one of the reasons that he took the initiative in requesting Mr. Harris’ assistance from April to July 2013. Mr. Harris states in his letter that Mr. Weir wanted to develop coping strategies to heal from the trauma and stress related to spending a decade, which represents the majority of his adult life, in prison. As Ms. Pennypacker submitted, Mr. Weir’s recognition that he has this problem is the first step. Taking steps to address it is the next step. Given his past initiative in seeking out Mr. Harris, it is reasonable to infer that Mr. Weir would seek out or be amenable to similar counselling when he is released from custody.
[80] Ms. Pennypacker observed that Ms. Stewart and Mr. Weir’s former employer have positive things to say about him. Although frustrated that he keeps getting into trouble and is re-incarcerated, they see that he does have the potential to get his life back on track.
[81] Ms. Pennypacker advised the court that Mr. Weir’s time in pre-trial custody has not been easy for him. From the time of his arrest on June 12, 2016, until June 29, 2017, he was at the Toronto South Detention Centre (“TSDC”). Shortly after his arrest, his mother had a stroke. It was frustrating for Mr. Weir and of great concern to him that he had put himself in a position where he was in custody and could be of no assistance to her. When she recovered from the stroke, Mrs. Weir visited him at the TSDC, which was not that far from her residence. However, following the setting of his trial date, Mr. Weir was sent to the Central North Correctional Centre in Penetanguishene, despite a court order that he be kept at the TSDC for compassionate reasons, that is, so that his mother could continue to see him. He was at the North Correctional Centre from June 29 to October 19, 2017. During that time, Mrs. Weir was only able to visit her son on one occasion. Since October 19, 2017, Mr. Weir has been at the Toronto East Detention Centre.
[82] In reviewing the case law relied on by the Crown, Ms. Pennypacker pointed out that in Kreindl, the accused deliberately fired a flare gun into the face of the victim, causing permanent injury. The risk of death or injury was real. In the present case, Mr. Weir discharged the gun in the air. The fact that such an act could have caused death or injury to someone, depending on where the bullets landed when they fell to the ground, is certainly an aggravating factor that the court must take into account. However, that did not happen. In other words, the risk of someone being killed or injured when Mr. Weir discharged the gun is more theoretical. In Kreindl, that risk was real. That is why Mr. Kreindl received a 14-year sentence for aggravated assault. He received seven years for the discharge of the gun.
[83] The case law relied on by the defence included the decisions in R. v. Mohammad, [2017] O.J. No. 2367 (O.C.J.) and R. v. Mohamed, [2016] O.J. No. 4244. Ms. Pennypacker submits that these cases support her position that a sentence in the range of 6 ½ to 8 years is appropriate.
The Principles of Sentencing
[84] In determining an appropriate sentence for Mr. Weir, regard must be had to the sentencing objectives set out in s. 718 of the Criminal Code. That section states 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 by imposing just sanctions that have one or more of the following six objectives: denouncing unlawful conduct; deterring the offender and other persons from committing crimes; separating offenders from society where necessary; assisting in the rehabilitation of the offender; providing reparation for harm done to victims or the community; promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.
[85] Any sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.
[86] A sentence should be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender: s. 718.2(a).
[87] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2 (b).
[88] Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The principle of totality requires the court to craft a global sentence that is not excessive: s. 718.2 (c).
[89] An offender should not be deprived of liberty if less restrictive sanctions may be appropriate: 718.2(d).
[90] Finally, all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered.
[91] Bearing these principles in mind, I have reviewed and considered the authorities referred to by counsel in their submissions.
Case Law
Cases Referred to by the Crown
[92] In Abdullahi, the accused pleaded guilty to recklessly discharging a firearm, unlawful possession of that firearm, and possession of an over-capacity handgun magazine. He had fired a gun three times into the air in a housing complex after his companion was shot in the leg by a person who was not arrested. The companion also had a loaded handgun. The accused retrieved the shell casings before leaving the scene. He had a minor criminal record, consisting of two counts of obstruct justice and one count of failing to comply with a recognizance. He was remorseful, had taken steps towards rehabilitation while in custody, and had a supportive family. He did not apply for bail and had waived his preliminary hearing. The position of the defence was that a six to 12-month sentence, in addition to two years of pre-trial custody was appropriate. The Crown asked for a sentence of six years. McWatt J. imposed the minimum sentence of five years, less credit for pre-trial custody.
[93] In Alexander, the 29-year-old accused was convicted of discharging a firearm to prevent his arrest, reckless discharge of a firearm, unlawful possession of an over-sized magazine, possession of a firearm while prohibited, and two counts of breach of recognizance. Unlike Mr. Weir, who discharged a firearm in the air, Mr. Alexander discharged a firearm at a loss prevention officer who was pursuing him through the food court in a shopping mall. Mr. Alexander had a lengthy criminal record, including three robbery convictions, four counts of assault causing bodily harm, and one conviction for assault. Unlike Mr. Weir, however, he did not have any previous convictions for firearm offences. The trial judge imposed a sentence of nine years, consisting of seven years for discharging the firearm, six months consecutive for possession of the overcapacity magazine, and a further one-and-a-half years consecutive for the breach of court orders. A three-year concurrent term was imposed for the unlawful possession of a firearm.
[94] In Kreko, the 22-year-old appellant pleaded guilty to possession of a loaded prohibited firearm, robbery with a handgun, and the intentional discharge of a firearm. The trial judge imposed a sentence of 13 years. The appellant had approached the victim with a gun in his hand and with his face masked by a bandana. There was a struggle. The gun went off and the bullet hit the ground. The appellant took a necklace and cell phone from the victim before fleeing on foot. The victim chased the appellant in his car and struck him with enough force to crack the windshield when the appellant’s body hit it. The appellant then fired three shots at the car. One bullet went through the headrest and entered the victim’s scalp, but did not penetrate or fracture his skull, and caused no serious injury. The appellant accidentally shot a bullet into his own leg, which required surgery and left him with permanent physical problems.
[95] The appellant, who was genuinely remorseful, was an Aboriginal who had been adopted by non-Aboriginal parents. He had struggled with his identity for many years, but had successfully completed a number of rehabilitative Aboriginal programs. There was a consensus that there was a real possibility of rehabilitation. The court held that the trial judge erred in failing to take into account the appellant’s Aboriginal background, and reduced the sentence to nine years. At para. 31, the court noted that the offences were committed in violation of two weapons prohibition orders and a conditional sentence, which included house arrest and a prohibition of possession of a weapon. These were seriously aggravating factors. The seriousness of the offences required a severe sentence.
[96] The court in Kreko did not set out the appellant’s criminal record, but noted that he had never received sentences imposing further custodial time in addition to pre-trial custody.
[97] In Slack, the appellant was convicted of possession of a loaded restricted firearm, contrary to s. 95(1) of the Code, and other related firearm offences. He was also convicted of failing to comply with the terms of his probation. The appellant had abandoned a running car in a public parking lot. Inside the car was a loaded prohibited firearm. He had a lengthy criminal record, including one prior conviction for possession of a firearm. He fled the scene when approached by the police, and tried to report his car as stolen. He was on probation at the time of the offence. The trial judge imposed a global sentence of eight years for the firearm offences, and two years’ imprisonment for the probation breaches. The appellant appealed the sentence on the basis that the trial judge erred in using an unconstitutional five-year minimum sentence as the sentencing floor. The Court held that the trial judge did not err in using the minimum sentence as a starting point. Nothing in the jurisprudence regarding the constitutionality of the mandatory minimum sentences displaced the notion that offenders convicted of truly criminal conduct in relation to firearms required exemplary sentences emphasizing deterrence and denunciation.
[98] In Barton, the 32-year-old accused was found guilty of possession of a loaded prohibited firearm and related offences. The firearm was an Intratec DC-9, which was equipped with a laser sight. It was loaded with 37 rounds of ammunition in an overcapacity magazine, and had one round in its chamber. The firearm was hidden in the base of a plant stand outside the accused’s apartment. More ammunition was located inside his residence. The accused had a lengthy related criminal record, including three prior convictions for the possession of a firearm. He used the weapon to support his drug trafficking. A mitigating factor was his difficult upbringing. The Crown submitted that a global sentence of 12 years was appropriate, given the seriousness of the offences. Defence counsel sought a sentence in the range of eight to nine years. Akhtar J. imposed a global sentence of 10 years.
[99] In Dunkley, the 34-year-old accused was convicted of six firearm offences, including the possession of loaded restricted firearm – namely, a 9 mm Ruger P35 semiautomatic handgun – and possession of a prohibited weapon, which was a Taser M26. The weapons were found in the accused’s car. At the time of his arrest, the accused was on parole in connection with an armed robbery conviction. He was also under a prohibition order in connection with earlier firearm- related charges. He had a lengthy criminal record, including prior firearm offences. The prospects for rehabilitation were slim. The defence sought a sentence of six years. The Crown submitted that a 12-year sentence would be appropriate. The trial judge imposed sentences totalling 8 years with respect to the firearm offences, and consecutive sentences of one year each with respect to the violation of the prohibition orders.
[100] In Johnson, the 24-year-old Aboriginal accused was convicted of possessing a loaded prohibited or restricted firearm, three counts of possession of a firearm while under a prohibition order, and breach of a probation order that prohibited him from possession of a firearm. The accused was the back passenger in a car stopped by the police. A loaded semi-automatic handgun was in a backpack on the seat next to him. The accused had a lengthy criminal record, including one prior conviction for possession of a firearm. He was subject to multiple weapons prohibitions, and was on probation at the time of the offence. Mitigating factors included the accused’s youth, his difficult upbringing, and significant Gladue factors. Marrocco J. imposed a sentence of 7 ½ years on the charge of possession of a firearm, three 6-month consecutive sentences with respect to the breaches of the prohibition order, and 6 months concurrent on the breach of probation. This nine-year global sentence was affirmed in the Court of Appeal.
[101] In Brown, the respondent, who was arrested on an immigration warrant, pleaded guilty to possession of a loaded restricted firearm and breach of a lifetime firearms prohibition order. The loaded semi-automatic handgun was on his person. The trial judge found that a global sentence of six years was appropriate, given the respondent’s guilty plea, his co-operation with the police on arrest, and the fact that there was no indication that he was involved in other criminal activity when he was arrested. The Court of Appeal held that the sentence was demonstrably unfit and increased it to eight years. The Court observed that the respondent had two prior convictions for possession of a firearm and breach of a firearms prohibition order. He was moving about the community with a fully loaded lethal weapon at the ready, despite court orders prohibiting him from possessing a firearm. His criminal record consisted of 34 convictions. He was the subject of a deportation order based on criminality at the time of his arrest.
[102] In Ward-Jackson, the 30-year-old accused pleaded guilty to nine firearms offences, which involved four separate and distinct firearms, and breaching both his prohibition and probation terms. Three counts related to the transfer or sale of three different firearms to Dellen Millard. Two of the guns were used by Millard to kill two different people. The accused knew that the firearms would be used for a criminal purpose. At the time of his arrest, the accused was in possession of an AK-47 fully automatic rifle with readily accessible ammunition. The evidence showed that he was entrenched in the illegal firearm industry. His criminal record consisted of four entries: theft under $5000; possession of a Schedule I substance for the purpose of trafficking; possession of a loaded prohibited or restricted firearm; and possession of a firearm knowing that his possession was unauthorized. Concurrent sentences of 3 ½ years had been imposed with respect to the latter three offences. Mitigating factors included the guilty plea and the accused’s remorse. The accused had a difficult childhood. He had made use of programming while in custody, and had support in the community. The position of the Crown was that a sentence of 13 years was appropriate. Defence counsel sought a sentence of 7 ½ years. Kelly J. imposed a global sentence of 11 years. She found that the accused fell into the category of one of the worst firearms offenders. But for the principle of totality and the guilty plea, she would have imposed a sentence of 13 years, or possibly more.
Cases Referred to by the Defence
[103] In Mohammad, the 28-year-old accused was a party to the discharge of a handgun into a moving car. The car that he was driving contained two loaded handguns. The accused was bound by a firearm prohibition order at the time. The only entry on his criminal record was a 2009 conviction for being in a motor vehicle with an unauthorized possession of a firearm, for which he received a suspended sentence and a one-year probationary term. The trial judge imposed a 6 ½ year sentence with respect to the discharge of the firearm, and one year consecutive with respect to the breach of prohibition order, less credit for pre-trial custody. In his reasons for sentence, Bourgeois J. distinguished discharging a gun in the air from discharging a gun from a moving car into another moving car, with individuals inside each car, on one of the main streets in Ottawa, at a time when there was a steady flow of traffic.
[104] I note that the 7 ½ year global sentence imposed in Mohammad was the accused’s first custodial sentence, and that he was sentenced as a party, as opposed to a principal. He did not actually discharge the firearm. These facts, plus his age, distinguish this case from the one before the court.
[105] In Mohamed, the 27-year-old accused was convicted pursuant to s. 244.2(3) of discharging a firearm in the air at least four times in the middle of a residential street in Ottawa at 6:50 a.m. There were people on the street, including the accused’s own companions, at the time. There were also people in apartments that were immediately adjacent to where the accused fired the gun. Anyone on the street or in the building would have been at risk of being hit by a stray bullet. After the shooting, the accused did not relinquish control of the gun but hid it in his girlfriend’s apartment. The gun was located and seized by the police. The accused was also convicted of breaching a firearm prohibition order.
[106] Mr. Mohamed’s criminal record triggered the seven-year minimum sentence. Five years earlier, he had pleaded guilty to robbery with a firearm, possession of a loaded prohibited firearm, uttering threats and failing to comply with a recognizance, all of which arose from the robbery of an individual in a car, and which continued as a home invasion. He received the minimum sentence of five years for these offences. Other entries on Mr. Mohamed’s record included three offences of failing to comply with a recognizance, and obstructing a peace officer. In imposing a sentence of eight years, Wadden J. stated that a higher sentence could have been justified, but the eight-year term took into account the accused’s age and the hope that he could be rehabilitated.
[107] Unlike Mr. Weir, Mr. Mohamed did not have a prior conviction for discharging a firearm.
The Appropriate Sentence in this Case
[108] Sentencing is a highly individualized process that requires the assessment of many factors in order to determine the most appropriate sentence. The sentence must be tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.
[109] The case law makes it clear that convictions for firearm-related offences are to be strongly denounced and that those intending to possess and/or use prohibited weapons need to understand that such possession will not be tolerated. Thus, the paramount sentencing objective when dealing with firearm-related offences must be denunciation and deterrence.
[110] The aggravating factors in this case include the real danger to the public when Mr. Weir discharged the firearm in the air. There were a number of people walking along the driveway and in the near vicinity at the time. The expert evidence indicates that the bullets, upon falling back down to the ground, could have struck an individual or individuals. I recognize, however, that Mr. Weir did not discharge the gun directly at a person or vehicle, and that no actual injury occurred. If such aggravating factors were present, then the appropriate sentence would be much higher.
[111] There was no justification whatsoever for Mr. Weir’s behaviour. He was simply miffed at a young woman for rejecting him, and chose to exhibit his displeasure by pulling out a loaded handgun from his waistband and firing it twice in the air. It appears from the casual manner in which he pulled out the gun and discharged it, while continuing to walk along the driveway, that firing the gun was no big deal for Mr. Weir.
[112] Mr. Weir has a serious criminal record both as a young person and as an adult. This is his third conviction for a firearm offence. It is his second conviction for discharging a firearm.
[113] Mr. Weir was subject to a firearm prohibition order when he committed these offences. That order came about as a result of his having discharged a firearm with tragic consequences. One person was killed, and another person was injured. Notwithstanding the ten-year sentence imposed on him for the offences of manslaughter and aggravated assault in connection with this incident, Mr. Weir was not deterred and apparently had no misgivings on May 29, 2016 about carrying a loaded handgun on his person and firing it into the air when disgruntled about a young woman’s lack of interest in him. The fact that he was subject to a firearm prohibition order at the time is, in the circumstances, a highly aggravating factor.
[114] Other entries on Mr. Weir’s criminal record that involve violence include the 2001 conviction for assaulting a police officer. Mr. Weir was in possession of a loaded handgun at the time. There are also two convictions in Youth Court for Robbery.
[115] It is clear that Mr. Weir has also been involved in the drug trade. He was charged with the present offences only five months after completing a one-year sentence for possession for the purpose of trafficking.
[116] Mr. Weir has never provided the authorities with any information that could lead to the recovery of the firearm.
[117] Mr. Weir is not a youthful offender. He was 35 when he committed these offences, and is now 37 years old.
[118] Mr. Weir does not benefit from the mitigating factor of a guilty plea, which signifies remorse. He was also reluctant to take responsibility for these offences when interviewed by Ms. Szkok. However, through his counsel’s sentencing submissions, and then in his statement to the court, Mr. Weir has admitted his guilt and apologized for his actions. He appeared to be sincere. I accept his apology as genuine. I also recognize that although Mr. Weir had a trial, it was very focused as a result of the many admissions made by the defence.
[119] As noted earlier, Mr. Weir’s statement to Ms. Szkok that he has good coping skills and that he is not an angry person, demonstrates a lack of insight into the root causes of his criminal behaviour. Anger management will obviously be a key issue in terms of Mr. Weir’s rehabilitation. However, to his credit, Mr. Weir clearly recognizes some of the risk factors for his involvement in crime, some of which he referred to in addressing the court – hanging around with the wrong crowd, going to the wrong places, and drinking. He recognizes now that alcohol, which makes him aggressive, is part of the problem. He indicated that he is prepared to “take hard steps to make lasting changes” so that he can be a proper father to his children.
[120] According to Ms. Stewart, Mr. Weir is a good father and very much engaged with his children when he is out of custody. His separation from his children has been painful for him. His time in pre-trial custody has also been difficult as a result of his limited contact with his mother. She was unable to visit him as much as she would have liked as a result of her stroke, and also because of the distance she had to travel when he was in Penetanguishene.
[121] In terms of his upbringing, Mr. Weir had a loving and supportive mother. However, the absence of his father in his life obviously had a profound and negative impact on him. He could not understand why his father did not want him. With no father figure to guide him, Mr. Weir basically ran amok. As he put it, he grew up in the streets where guns and violence for protection were the norm. Both Ms. Stewart and Mr. Weir’s mother spoke of the void in Mr. Weir’s life as result of the absence of his father.
[122] Although Mr. Weir dropped out of school after grade nine, he managed to obtain his high school diploma while incarcerated in the penitentiary. Mr. Weir presented as very articulate when addressing the court. There is reason to believe that if he applies himself, he could successfully complete the business courses that he aspires to take.
[123] In terms of employment, Mr. Weir sufficiently impressed Mr. Alexander such that Mr. Alexander is prepared to re-hire him whenever Mr. Weir is available to work. Mr. Harris reported that Mr. Weir also impressed his employer in Hamilton, where he held the same job for over a year.
[124] Mr. Weir has the support of Ms. Stewart and his mother. It is significant, in my view, that Mr. Weir recognizes that if he is to re-integrate successfully back into the community, he will also require professional support. It is a positive sign that he initiated or reached out for that kind of assistance in 2013, when he began counseling sessions with Mr. Harris.
[125] Clearly, denunciation and deterrence, both general and specific, are of paramount importance in this case. However, the principle of rehabilitation cannot be entirely overlooked.
[126] Taking into account all of the circumstances, the submissions of counsel, and the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, I find that the appropriate sentence in this case is 10 years, less credit for time served in pretrial custody.
[127] Mr. Weir has been in custody for 664 days, or 1 year, 9 months and 26 days. Based on a ratio of 1.5:1, this is the equivalent of a sentence just shy of 2 years and 9 months. This results in a sentence of 7 years and 3 months, subject to a further possible deduction pursuant to R. v. Duncan, 2016 ONCA 754.
The Duncan Credit
[128] In Duncan, at para. 6, the Court confirmed that in appropriate circumstances, particularly harsh presentence conditions can provide mitigation apart from and beyond the 1.5 credit. However, in considering whether any enhanced credit should be given, the court must consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.
[129] In Duncan, the court declined to grant any enhanced credit to the appellant. Although there was evidence that the appellant had served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues, there was no evidence of any adverse effect on the appellant flowing from the locked down conditions. At para. 7, the court stated that although the pattern of lockdowns endured by the appellant was worrisome, without further evidence as to the effect of those conditions, the court could not say that the appellant suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5:1 credit.
[130] Ms. Pennypacker submits that the number of lockdowns to which Mr. Weir has been subjected during his incarceration, particularly while he was at the Toronto South Detention Center, warrants the granting of the Duncan credit. She did not specify the exact quantum of credit that is being sought.
[131] Mr. Weir was at the Central North Correctional Centre in Penetanguishene from June 29 to October 19, 2017, or for 113 days. During this period, there were 14 lockdowns, totaling 149.5 hours outside of normal lockdown times.
[132] Mr. Weir was at the Toronto East Detention Centre (“TEDC”) from October 19, 2017, to January 22, 2018, or for 96 days, during which there were 42 lockdowns. The facility’s records indicate that 37 of the lockdowns occurred between 6:00 p.m. and 9:00 p.m. The officer from the TEDC, John Lawson, explained that lockdowns at this time do not interfere with programming, visitations, showers, or access to counsel.
[133] Two lockdowns at the TEDC ran from 9:00 a.m. to 11:00 a.m., and one ran from 1:00 to 4:00 p.m. Only two lockdowns lasted for eight hours, running from 1:00 p.m. to 9:00 p.m.
[134] On the basis of the evidence before me, the effect of the lockdowns at the TEDC and Penetanguishene do not rise to the level of “particularly harsh” conditions.
[135] Mr. Weir was at the TSDC from June 13, 2016, to June 29, 2017, or for 381 days. During that period, there were a total of 180 lockdowns. Of those 180 lockdowns, 117 were full lockdowns of the entire facility, but not necessarily for a full day. Sixty-three of the lockdowns affected part of the facility and, in particular, the part where Mr. Weir was being housed.
[136] Twenty-eight of the lockdowns occurred after 6:00 p.m., and 22 took place in the afternoon, after 2:00 p.m. Given their duration and the time at which they occurred, these lockdowns, totalling 50 in number, may be categorized as having had minor effects.
[137] Another 17 lockdowns were related to what might be categorized as part of the normal operations of a custodial facility; that is, they related to searches for contraband, security of the facility, the transfer of an inmate, facilitating staffing in a particular area, etc.
[138] The remaining 113 lockdowns can be considered as more substantial in nature. Eighty-two of these lockdowns were for a 24-hour period. Sgt. Leon Watson testified that in the normal course of events, and with only two exceptions, inmates during a 24-hour lockdown still have the opportunity to shower, make phone calls, visit with friends or family in the video monitoring area, and consult with counsel. Some volunteers are permitted to enter a unit during a lockdown so that inmates may continue with programs, such as the high school credit program. The two exceptions, when these opportunities are not available during a 24-hour lockdown, are when there are security concerns, such as a search for weapons, and when there are “excessive” staff shortages.
[139] The TSDC records do not indicate when there is an “excessive” staff shortage. Sgt. Watson’s best estimate was that “excessive” staff shortages constitute less than ten percent of all staff shortages.
[140] I recognize that most of the lockdowns at the TSDC were as a result of staff shortages. However, there was no evidence adduced by Mr. Weir as to any adverse effect on him flowing from the locked down conditions. It is apparent that his ability to take programs was not affected, as Mr. Weir was not enrolled in any programs or courses. There is no affidavit from him indicating if or to what extent his physical and psychological health was affected. Without further evidence in this regard, I am not able to say that Mr. Weir suffered particularly harsh treatment entitling him to additional mitigation beyond the 1.5:1 credit. I find that this is not an appropriate case to grant credit pursuant to Duncan.
Conclusion
[141] In conclusion, the sentences imposed are as follows:
Count 1: Discharging a firearm (s. 244.2(3)(a)): 7 years and 3 months
Count 3: Possession of a loaded prohibited or restricted firearm (s. 95(2)(a)): 5 years concurrent
Ancillary Orders
[142] There will be an order pursuant to s. 487.051(2) of the Criminal Code that Mr. Weir provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database.
[143] There will also be an order pursuant to s. 109 of the Criminal Code that Mr. Weir be prohibited from possessing any weapons, as defined in that section, for life.
GARTON J.
Released: April 6, 2018