Court File and Parties

COURT FILE NO.: CR-16-70000618-0000 DATE: 20190118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Siaka Camara Defendant

Counsel: Catherine Glaister, for the Crown Gregory Leslie and Raymond Wong, for the Defendant

HEARD: August 13-17 and 20-24, 2018

REASONS FOR SENTENCE

C. J. BROWN, J.

Overview

[1] Siaka Camara was tried by jury on August 24, 2018 and was found guilty of the following:

Count 1: carry ammunition in a careless manner contrary to section 86(1) of the Criminal Code;

Count 2: carry a firearm in a careless manner, contrary to section 86(1) of the Criminal Code;

Count 3: carry weapon, namely a firearm, for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code;

Count 4: without being authorized under the Firearms Act to carry a concealed weapon, carried a concealed weapon contrary to section 90(1) of the Criminal Code;

Count 5: possess a prohibited firearm without being the holder of a license under which he may possess it, contrary to section 91(1) of the Criminal Code;

Count 6: possession of a prohibited weapon, namely a firearm, without being the holder of a license permitting such possession and the holder of a registration certificate for the said firearm, contrary to section 91(2) of the Criminal Code;

Count 7: possession of a firearm, knowing that he was not the holder of a license permitting such possession and a registration certificate for the firearm contrary to section 92(1) of the Criminal Code;

Count 8: possession of a loaded prohibited firearm, while he was not the holder of an authorization or license permitting such possession and a registration certificate for the firearm, contrary to section 95(1) of the Criminal Code;

Count 12: assault on Sean Fischer contrary to section 266 of the Criminal Code;

[2] Mr. Camara was acquitted on Count 9, possession of a firearm knowing that it was obtained by the commission in Canada of an offence, contrary to section 96 of the Criminal Code.

[3] Mr. Camara was found not guilty of the following:

Count 10: knowingly uttered a threat to Sean Fischer to cause death to him, contrary to section 264.1(1) (a) of the Criminal Code;

Count 11: committed an assault on Jeffrey Kydd, contrary to section 266 of the Criminal Code.

[4] Siaka Camara also pled guilty to the following:

Count 13: fraudulent personation of Marlo Williams with intent to avoid prosecution, contrary to section 403(1) (d) of the Criminal Code;

Count 14: possession of a firearm, while he was prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code on the 10th day of January, 2011, contrary to section 117.01(1) of the Criminal Code;

Count 15: possession of a firearm, while he was prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code on the first day of October, 2014, contrary to section 117.01(1) of the Criminal Code;

Count 16: possession of a firearm, while he was prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code on the sixth day of October, 2014 contrary to section 117.01(1) of the Criminal Code;

Count 17: possession of a firearm while he was prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code on the 13th day of August in the year 2013, contrary to section 117.01(1) of the Criminal Code.

[5] On November 30, 2018, Mr. Camara came before this Court for sentencing submissions. The following evidence is also before this Court: Siaka Camara’s criminal record, Victim Impact Statements from Jeffrey Kydd and Ranjith Magee, and Toronto Police Services Crime Statistics regarding shootings in Toronto and regarding 51 Division particularly.

Circumstances of the Offence

[6] Siaka Camara had attended the Sterling Room at 55 Mill St. in the Distillery District of Toronto with a number of friends on January 2, 2016. The last call for alcohol was at 2 AM and the club was usually cleared by 2:45 AM. At the end of the night, Mr. Camara would not leave the club. He became engaged in a scuffle with one of the employees who was trying to clear the club. Friends of Mr. Camara attempted to stop the altercation and to get him to leave. He finally left but threatened to return with a gun (“get his thing”) and “settle the matter”. His friends indicated that the employees didn’t want to mess with “this guy” and that he would come back and shoot.

[7] As a result, the employees called the police, but by the time they had arrived, Mr. Camara and his friends had gone.

[8] Mr. Camara returned to the Sterling Room shortly thereafter, and there was a scuffle with the employees who finally succeeded in getting him to the ground and holding him down until the police came. During the scuffle, a loaded handgun fell out of the waistband of his pants.

Circumstances of the Offender

[9] Siaka Camara was, at the time of the offences, 27 years of age. He is now 30.

[10] He has a lengthy previous criminal record from 2008 to 2014, which was filed in evidence.

[11] He was under a deportation order and was in the country illegally at the time of the offences involved in this matter, after having been previously deported under escort.

[12] When he returned to Canada, he was living with his girlfriend, with whom he has a son.

[13] Mr. Camara is currently subject to an immigration hold. He was deported under escort from Canada on June 22, 2015. He returned illegally, without ministerial consent, and was issued another deportation order on February 26, 2016 after this arrest on these charges on January 3, 2016.

[14] While there was no evidence of this, counsel for Mr. Camara stated that he had, from 1996 to 2015, had a difficult life, with an abusive uncle in Guinea, with whom he resided when his mother went to Canada, and when he came to join his mother in Toronto in 2003, had an abusive “stepfather” with whom his mother resided in Toronto. From 2014 to 2015, he resided firstly in a home for troubled youth and then on the streets where he was introduced to drugs and criminality.

The Positions of the Parties

The Position of the Crown

[15] It is the position of the Crown that Mr. Camara should be sentenced for 12 years less pre-sentence credits. The Crown further seeks ancillary orders as follows: a section 109 prohibition order for life, a DNA order, a forfeiture order as regards the Bersa handgun and ammunition and an order prohibiting Mr. Camara from having any contact with Jeffrey Kydd, Ranjith Magee and/or Sean Fischer.

[16] The Crown submits that, in this type of offence, the primary goals of sentencing are denunciation and deterrence and protection of the public. The offences are grave and carry maximum sentences of two to ten years. In addition to the prohibited firearms and ammunition charges, he was charged with breaches of four separate section 109 firearms prohibitions and the offence of personation to avoid prosecution which involved Mr. Camara’s possession of an Ontario driver’s license with his photograph and another person’s name, an offence of which he had also been previously charged and convicted in 2012.

[17] As regards the personation with intent to avoid prosecution, it is the position of the Crown that the sentence must reflect the serious nature of the personation and the sentencing principles, given that Mr. Camara had an Ontario driver’s license in another person’s name, but with his photograph.

[18] The Crown maintains that there are no mitigating factors. Mr. Camara is not a young offender, he has a serious criminal record, was deported from Canada, returned illegally and committed these offences.

[19] The Crown relies on the cases of R v Brown, 2010 ONCA 745, R v Chambers, 2013 ONCA 311; R v Danvers; R. v. Jama, 2018 ONSC 1252; R v Nur, 2015 SCC 15, all essentially for the sentencing principles enunciated therein. The Crown recognized that the facts of the various cases differed from the present case.

The Position of the Defence

[20] The defence agrees that the principles of denunciation, deterrence and protection of the public are primary sentencing principles in the circumstances of this case. However, the defence also emphasizes the principle of rehabilitation. The defence maintains that it may be a secondary factor, but should nevertheless be considered. The defence states that Mr. Camara was 27 at the time of the events, is 30 now and is still young enough to be rehabilitated.

[21] As regards the four section 109 firearms prohibition orders that were breached, Mr. Leslie, for the offender, submits that only one order, that dating from 2011, should have a consecutive sentence to the others. He maintains that counts 15 to 17 all occurred within a short lapse of time of one another (counts 16 and 17 both in October 2014) and should be concurrent.

[22] As regards the prohibition order breaches, the Crown took the position in reply that, in contradistinction to the defence argument that breaches of orders made within a short period of time of one another should receive concurrent sentences, the prohibition orders had been made for different offences (assault; assault and threatening to harm an animal; robbery; and extortion), and should be treated separately with consecutive sentences.

[23] As regards the offence of personation, Mr. Leslie seeks a six month sentence, consecutive. Mr. Leslie agrees with the Crown that the offences require imposition of a penitentiary sentence, but seeks a global sentence of 5 ½ years: four years for the firearms related convictions; six months consecutive for breach of the 2011 prohibition order and six months concurrent for the other breaches of prohibition orders, and six months consecutive for the personation charge. Mr. Camara has been in custody for two years and 10 months and Mr. Leslie seeks pre-sentence credits at 1.5:1 (or four years three months credit).

[24] The defence relies on the cases of R v Alexander, 2013 ONSC 171 re: consecutive and concurrent sentences and the principle of totality; R v Omar, 2015 ONCA 207; R v Nasciamento, 2014 ONSC 6739; R v Kift, 2014 ONCA 625; R v Duale, 2014 ONSC 3799; R v Delchev, 2014 ONCA 448 and R v Crevier, 2013 ONSC 2630. The defence relied upon these latter cases to underline his submission that a lower sentence should be imposed as regards the firearms offences. It was his position that the cases relied upon involved more serious firearms offences which garnered sentences of 5 to 7 years, and that this case warranted a sentence of 4 years for the firearms offences.

Impact on the Victims

[25] Both Jeffrey Kydd and Ranjith Magee, employees in the Stirling Room on January 2, 2016, were involved in the subject incidents and submitted victim impact statements.

[26] It was clear from these victim impact statements that the encounter with Mr. Camara had clearly had a significant emotional effect on each of them.

[27] Mr. Kydd, in his victim impact statement indicates that “My feeling of safety and security has been taken from me. I will live my life looking over my back, fearful and afraid.… I have been sentenced to a life of feeling nervous, anxious and afraid”. He indicates that he is fearful in crowds. He appears to continue to consider what happened and what may have happened had they not been able to disarm Mr. Camara.

[28] Mr. Magee also appears to relive the events of that evening and of what may have happened had they not been able to subdue him. At the time of Mr. Magee’s testimony at trial, he was clearly intimidated by the presence of Mr. Camara and ultimately gave testimony behind a screen.

[29] These victims have clearly been emotionally and psychologically affected by the events of January 2-3, 2016.

Sentencing Principles

[30] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:

1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
2. to deter the offender and other persons from committing offences;
3. to separate offenders from society where necessary;
4. to assist in rehabilitating offenders;
5. to provide reparations for harm done to victims or to the community; and
6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[31] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be had regarding the principles set forth in section 718.2.

[32] The principle of parity is a governing principle which must be considered. It requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is, however, an individualized process which necessarily means that sentences imposed for similar offences may not be identical: R v Cox, 2011 ONCA 58 and R v L.M., 2008 SCC 31.

[33] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence for all offences that is not excessive: R. v. M.(C.A.) at para 42. If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

[34] In this case, the defence further took the position that the “jump” principle should be considered and applied.

[35] In this case, I am of the view that the principles of general and specific deterrence, denunciation, the protection and safety of society and the maintenance of a just, peaceful and safe society are of significance. While counsel for the defence urged, as a secondary factor to be considered, the rehabilitation of Mr. Camara, and I have considered this, I am of the view that the primary considerations are general and specific deterrence, denunciation and the protection and safety of the public.

Aggravating and Mitigating Factors

Mitigating Factors

[36] Given all of the circumstances of this case, I do not find there to be any significant mitigating factors.

[37] Based on submissions of Mr. Leslie, it would appear that Mr. Camara has taken steps toward improving himself while in custody by taking numerous courses offered at the prison where he is being detained. These courses include Core Life Skills, Substance Abuse, Supportive Relationships, Anger Management, Managing Stress, Being an Effective Father.

Aggravating factors

[38] Mr. Camara resisted leaving the Stirling Room at closing hours and threatened to return. The threat was such that the employees of the Stirling Room called the police who came and investigated after Mr. Camara had left the Stirling Room on the first occasion. Thereafter, he returned with a prohibited, concealed loaded firearm in the waistband of his pants.

[39] The Supreme Court of Canada has recognized that section 95(1) spans a broad range of potential conduct from criminal conduct which poses a real and imminent danger to the public to, at the lower end of the spectrum, regulatory type offences. The firearms offences of which Mr. Camara was charged were on the true crime activity end of the scale as regards firearms offences and not simply regulatory offences, which is at the other end of the scale: R v Nur, 2013 ONCA 677, 117 O.R. (3d) 401.

[40] At the time of this offence, Mr. Camara was under four firearms prohibition orders, two of which were for life.

[41] The personation involved not simply stating that Mr. Camara was someone else, but involved an altered Ontario driver’s license, with his photograph and another person’s name.

Firearms

[42] As regards the use of firearms in Toronto, the courts have been explicit in denouncing their use and calling for exemplary sentences. In the case of R v Danvers, the Ontario Court of Appeal at paragraph 77 and 78 stated as follows:

[77] In conclusion, I fully endorse the following comments made by the trial judge in sentencing the appellant: It is my view that the circumstances of this murder and this offender bring into play the principles of deterrence, both general and, more especially individual, the principles of denunciation and the protection of society. 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.

[78] 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.

[43] In the case of R v Lambert, 2011 ONSC 4400 at paragraph 48, Kelly J stated as follows:

[48] In the six years since Danvers was decided, “the concern [over gun violence] is still unfortunately very much alive and un-satiated.” If anything, an even stronger message needs to be sent that the possession of illegal firearms will simply not be tolerated:

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

R v P.P.J., [2010] O.J. No. 5440 (S.C.J.) Nordheimer J. at paras 27 and 32-34.

[44] Akhtar J, in R v Thavakularathnam, 2018 ONSC 2380 at paragraph 21 stated:

[21] Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crimes; spouses, romantic parties, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence 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.

[45] He thereafter cites numerous other cases which also recognize that exemplary sentences must be imposed in cases of the possession of unauthorized firearms in Toronto. And see: R v Mansingh, 2016 ONSC 94 at paragraphs 22-24 and R v Marshall, 2015 ONCA 692 paragraphs 47-49, 53.

[46] In R v Mark, 2018 ONSC 270, Campbell J, at paragraph 24, stated as follows:

[24] Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the greater Toronto area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences. See R v Danvers (2005), 199 C.C.C. (3d) 490, 201O. A.C. 238 (C.A.) at paragraph 77-78; R v Brown, 2010 ONCA 745, 277 OAC 233 at paragraph 14; R v Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 at paragraph 10, 58, affirmed, 2013 ONCA 233, 305 OAC 47; R v Chambers, 2012 ONSC 817, [2012] O.J. No. 462 at paragraphs 15-17, affirmed, 2013 ONCA 311, 311 OAC 307.

[47] Unfortunately, the dicta of the Court of Appeal in 2005 in R v Danvers, and the many cases thereafter, continue to be true today. Gun violence continues to be a plague in the Greater Toronto Area. Severe or exemplary sentences must continue to be imposed in order to clearly signal and reinforce to the public at large and to the criminal community that resort to the use of prohibited handguns for unlawful purposes will not be tolerated in our society and in our City.

Concurrent versus Consecutive Sentences

[48] Where there is a reasonably close nexus between the offences in time and place, and where they appear to be part of “one continuing crime operation”, the sentences should be concurrent.

Analysis

[49] Each sentencing case differs and each offender must be sentenced based on the particular offences that he or she has committed. However, other cases, such as those cited by counsel for the Crown and defence, are of assistance in determining an appropriate range of sentence for similar offences and offenders, in conjunction with consideration for the sentencing objectives to be considered.

[50] I am of the view that the principles of general and specific deterrence, denunciation and the protection of society are of significance.

[51] Both Crown and defence agree that a penitentiary sentence is warranted in the circumstances of this case. Both counsel agree that the primary sentencing objectives, given the circumstances, are deterrence, denunciation and the protection of the public. The defence further submits that a secondary objective should be rehabilitation.

[52] I have taken into consideration all of the principles of sentencing, as set forth above. I have taken into consideration Mr. Camara’s background.

[53] I have considered Mr. Camara’s circumstances, as well as the aggravating factors in this case. I have considered that in determining a sentence, consideration must be had for a sentence that constitutes the minimum necessary intervention that is adequate to the circumstances.

[54] I have further considered and read all of the case law relied upon by the Crown and the defence, as set forth above.

[55] I am, as well, mindful of the concerns expressed by this Court and other courts at the appellate and Supreme Court levels as regards the issue of guns in Toronto.

[56] The Court of Appeal has emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related offences and that exemplary sentences must be imposed to deter the use of handguns: R v Danvers, supra.

[57] Given all of the circumstances of this case, the circumstances and the criminal record of Mr. Camara, it is important to craft a sentence that will fit the gravity of the offences.

[58] Mr. Camara, please stand.

[59] Mr. Camara was carrying a concealed prohibited, loaded handgun with ammunition in a public place, following threats to the employees of the Stirling Room that he would return, after they requested him to leave at closing time. He had returned with the purpose of settling things. There was an apparent risk to the public.

[60] I am of the view that, in such circumstances as these, an exemplary sentence as regards the firearms-related offences must be imposed. I am of the view that a sentence of six years is warranted. As regards the breaches of the four prohibition orders, two of which were prohibitions for life, I impose consecutive sentences of six months each. I am mindful of and have considered the dicta of the Court of Appeal in R v Chambers, supra, in which the court observed “that the social purpose of the prohibition orders was the same – to prevent the appellant’s possession of firearms – does not detract from the fact that the breaches constituted separate offences, referable to prohibition orders imposed at different points in time, in different circumstances. The Court further recognized that the decision whether the sentences imposed on those charges should be served consecutively or concurrently is that of the sentencing judge. Finally, the Court of Appeal observed that it had “recently upheld sentences of six months imprisonment for firearms prohibition offences, to be served consecutively to a firearm possession offences and to each other”: R v Johnson, 2013 ONCA 177, 303 OAC 111.

[61] In this case, I have considered the four prohibition orders which were imposed as a result of four separate offences. I am of the view that four consecutive sentences should be imposed as regards the breaches of those four prohibition orders.

[62] As regards the personation with intent to avoid prosecution, I am of the view that the personation which involved a fraudulent identification card, merits a sentence of one year consecutive.

[63] Therefore, the global sentence without consideration of credit for pre-sentence custody is nine years. Mr. Camara served pre-sentence custody, which at a credit of 1.5:1, amounts to 4 ½ years.

Thus, the global sentence is nine years less 4 years 6 months for pre-sentence credit, leaving 4 years 6 months to be served.

Ancillary orders

[64] The following ancillary orders will be imposed:

1. Section 109 prohibition order for life;
2. A DNA order;
3. A forfeiture order as regards the Bersa handgun and the ammunition seized; and
4. An order prohibiting Mr. Camara from having any contact with Jeffrey Kydd, Ranjith Magee Sean Fischer and/or Ali Shahrestani.

C. J. Brown, J.

Released: January 18, 2019

COURT FILE NO.: CR-16-70000618-0000 DATE: 20190118 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Siaka Camara Defendant REASONS FOR SENTENCE C. J. Brown, J. Released: January 18, 2019