REASONS FOR SENTENCE

Overview

[1] On November 2, 2018, following a trial before me, I convicted Mr. Jessy-Kabanga (“Mr. Kabanga”) of:

• Careless storage of a firearm; a handgun, contrary to s. 85 of the Criminal Code (Count 4);

• Careless storage of ammunition; contrary to s. 86(1) of the Criminal Code (Count 5);

• Possession of a prohibited firearm without being the holder of a license and registration certificate, contrary to s. 91(1) of the Criminal Code (Count 6);

• Possession of a prohibited firearm knowing that he was not the holder of a license and registration certificate, contrary to s. 92(1) of the Criminal Code (Count 7);

• Possession of a loaded restricted firearm with readily accessible ammunition, contrary to s. 95(1) of the Criminal Code (Count 8);

• Possession of a firearm knowing that the serial number had been defaced, contrary to s. 108(1) of the Criminal Code (Count 9); and

• Possession of a firearm while prohibited from doing so by reason of a s. 109 order contrary to s. 117.01 of the Criminal Code (Count 10).

[2] I acquitted Mr. Kabanga of Counts 1-3 as explained below.

[3] Counsel agree that the offence set out in Count 6 should be stayed based on the principal in R. v. Kienapple, [1974 (SCC)](https://www.canlii.org/en/ca/scc/doc/1974/1974canlii14/1974canlii14.html), [1975] 1 S.C.R. 729. I agree.

[4] Mr. Kabanga is now before me for sentencing. Ms. Laine completed her sentencing submissions on January 18th and because there was insufficient time for Mr. Holder to make all of his submissions, counsel and Mr. Kabanga agreed that I would receive Mr. Holder’s submissions in writing and that Ms. Laine would then provide a written reply. The written submissions of both counsels were lengthy. Mr. Holder provided a few additional submissions in a sur-reply, which Ms. Laine objected to, as she was out of the country and not able to consider or respond to them. For reasons I will come to, those further submissions did not have any impact on my decision.

The Facts

Circumstances of the Offences

[5] The circumstances of these offences are set out in my Reasons for Judgment; R. v. Kabanga-Muanza, 2018 ONSC 6515. In summary, on July 20, 2015, at approximately 1:10 a.m., a firearm was discharged outside the apartment building at 10 Boultbee Avenue in the City of Toronto, shattering a glass window on the exterior wall of the lobby of that building. One young man, Karlyle Robinson-Costain, was in the lobby and the shattered glass caused him some minor injuries. I found that the shot came from a firearm discharged by a passenger who had exited briefly from a vehicle registered to Mr. Kabanga; a 2004 Pontiac Grand Prix (“Vehicle”). I also found that the firearm used in the shooting was the firearm found by police during the course of an authorized search of Mr. Kabanga’s Vehicle. The shooter was never identified.

[6] Mr. Kabanga was charged with attempted murder by discharging a firearm (Count #1), discharging a firearm with intent to endanger life (Count #2), and using a firearm while committing an indictable offence (Count #3). The Crown alleged that Mr. Kabanga was a party to these offences by driving the shooter to and from the site of the shooting in his Vehicle and supplying the shooter with the firearm. I acquitted Mr. Kabanga of these charges.

[7] The firearm was found during the search of Mr. Kabanga’s Vehicle in a cavity behind the end of the dashboard behind the steering wheel. I found that if the driver’s door was open that the firearm was readily accessible as the panel that covered the cavity was on the driver’s floor of the Vehicle. When the driver’s door was closed, the firearm would not be visible or accessible.

[8] The firearm is a semi-automatic pistol; a handgun and when the officer who found it proved it safe, he found that there was no ammunition in the chamber but there were six live rounds in the magazine affixed to the firearm. The serial number was defaced.

[9] I found that I did not have enough evidence to conclude that Mr. Kabanga alone was in possession of the firearm, but I did find that Mr. Kabanga either personally had the requisite possession, knowledge and control of the firearm found in his Vehicle or that he was in joint possession of the firearm with another.

Circumstances of Mr. Kabanga

[10] Mr. Kabanga was 22 years old at the time of these offences. He is now 26. He has no dependents. He has one younger brother and two younger sisters and five younger step-siblings from his father’s side.

[11] Although the probation officer who authored the Pre-Sentence Report (“PSR”) was able to speak to a former girlfriend to obtain background information about Mr. Kabanga, neither his parents nor any of his siblings were contacted. However, his parents and a brother along with his former girlfriend were in court on the first day of the sentencing hearing to show their support for Mr. Kabanga and some attended on the second day as well.

[12] Based on the information Mr. Kabanga provided to the probation officer, he clearly had a very difficult upbringing. He was born in Congo, Africa and raised there by his parents for the first three years of his life before moving to Canada with his family for better opportunities. Once in Canada it seems that there was little stability in Mr. Kabanga’s life, as his family moved from one neighbourhood in Toronto to the next; all known for gang activity and drug use, which Mr. Kabanga said made it difficult for him to avoid negative peer influences. The family never had enough money for Mr. Kabanga to participate in extra-curricular activities, but even if they had, as Mr. Holder submits, they never stayed in one place long enough to allow Mr. Kabanga to create any sort of positive social support system for himself – he told the probation officer that he never learned how to make friends.

[13] Mr. Kabanga’s parents separated when his was about 12. He did not witness physical domestic abuse but stated that his parents were always verbally fighting due to his father’s alcohol abuse. Mr. Kabanga believes that his mother suffered from depression and had mental health issues. Once his father left, Mr. Kabanga said that his mother would often take out her anger on him, sometimes throwing objects at him and threatening to send him back to Africa. Although it is not clear when this occurred, Mr. Kabanga told the probation officer that his mother left with his two younger sisters without telling anyone, leaving him and his younger brother with his father. Based on Mr. Holder’s written submissions, I believe that this occurred when Mr. Kabanga was 14 years old.

[14] According to Mr. Kabanga, after his mother left he only saw his father once or twice a month. He and his brother were left to fend for themselves. They were checked upon periodically by one of his father’s female friends who would drop off money and groceries. By the age of 14, Mr. Kabanga said that he had to find his own food, and at the age of 18, he began selling drugs to support himself and his brother financially to purchase groceries, clothing and to pay for school. He tried to get jobs but because of social anxiety did not feel comfortable working.

[15] Because no one was at home to take care of Mr. Kabanga and his brother, Mr. Kabanga said that he and his brother were always outside and he began to get into trouble with police at the age of 15 for carrying a pocketknife for self-protection from a big family in his neighbourhood that he was scared of. He reported that his friends had a negative influence on him and he began engaging in unlawful activities with friends he met in the neighborhood. I accept that this was at least in part due to the neighborhood he was living in. At some point he was living in the Regent Park neighbourhood, which Mr. Kabanga reports was full of gang members and drug users. He denied every being affiliated with a gang and told me that he never wanted to be part of a gang.

[16] Mr. Kabanga reported having difficulty building friendships and so he “stayed to myself”. His relationship with his former girlfriend was in the 2012-2014 time frames but the relationship did not last because he was in custody. This woman has however talked to him while he was in custody and seems to be a support for him now.

[17] Mr. Kabanga was suspended on two occasions for fighting while he was in elementary school. He apparently was being teased by kids at school and had trouble managing his anger. He was placed in special education classes but he refused to participate in them because “everybody was saying special-education classes was for stupid kids.” Mr. Kabanga attended four different high schools and while in high school he was also suspended two times for fighting; in one case for 20 days after he was charged with an incident on school property.

[18] Mr. Kabanga has taken significant steps towards rehabilitation since he’s been in custody. Because of his various charges, he did not finish high school but while in custody he participated in a program whereby he was able to write his GED exam. He told the probation officer that he passed all but math but on the last day of his sentencing, when Mr. Kabanga addressed me, he advised me that he has now passed math and so he has obtained his high school diploma. In addition, he participated in a number of volunteer/community partner run programs including Cocaine Anonymous, which suggests a concern at the time about an addiction to cocaine. He also completed 16 Core Programs offered at the Toronto South Detention Centre (“TSDC”) including programs dealing with mental health, relationships, finding and maintaining employment, substance use, anger-management and planning for discharge. He has also received chaplaincy services of various types. Mr. Kabanga participated in and received his diploma in the Forgiveness Project, which Mr. Holder advised provides resources and experiences to help people overcome their own unresolved grievances. I am also advised that he has signed up with Neighbourhood Link, a community clinic that works to provide services to enable people to live with dignity and independence.

[19] Ms. Laine submitted however, that nine of the 16 programs, which Mr. Kabanga participated in at the TSDC were completed during his lengthy sentence for drug trafficking, prior to the commission of the offences before this Court.

[20] Mr. Kabanga advised the probation officer that he started working at the age of 19 and has had four different jobs. The longest was nine months while working in a warehouse at general labour work. Once released from custody he wants to disassociate himself from his old group of friends and he would like to move out of the city; possibly to Oakville. He would like to work as a forklift driver or in construction.

[21] During the last two years while in custody, Mr. Kabanga has met with a psychiatrist. He reported that he has been diagnosed with a mood disorder and was prescribed medication. However he has stopped using that medication. With respect to his anger management issues, Mr. Kabanga admitted that he continued to have concerns about this but that he now uses a different approach to deal with this issue; one he learned while incarcerated from cell partners, which he says has given him “a sense of direction.”

[22] Mr. Kabanga’s former girlfriend advised the probation officer that she met Mr. Kabanga about ten years ago when she was 15. She described Mr. Kabanga as someone with a strong will, caring and independent who is family oriented, encouraging his siblings to do positive things like attend school. Both Mr. Kabanga and his former girlfriend stated that he has a supportive relationship with his family although surprisingly he could not remember contact information for his parents and the probation officer was not able to reach his brother. His parents did keep in touch with him however, while he was in custody, and as already stated he had obvious family support during the sentencing hearing.

[23] Mr. Kabanga first experimented with alcohol, marijuana and MDMA when he was 18. He gradually began using marijuana regularly and used MDMA when he was at a party; four to five times per month. By the time he was 19 he was using MDMA regularly. However he denied having an addictive personality and reported to the probation officer that he had not used any illegal substance in the last five years. His former girlfriend also reported that there were no substance abuse issues with regards to Mr. Kabanga.

[24] Mr. Kabanga did not want to discuss the convictions with the probation officer, which is his right, but it does mean that he did not accept any responsibility for possessing a firearm. However, when he addressed me on February 15th, he told me that he was sorry for what happened to Mr. Robinson-Costain and that he did have remorse but did not understand what the probation officer was asking him. Mr. Kabanga advised me that he was not in a gang and that he did not want to be in a gang. He admitted that he had made poor decisions that he was not proud of and he attributed his poor choices to where and how he was raised and the fact that he had a rough time in school and with employment, which he thought was partly due to the colour of his skin. He spoke of the financial hardship he has suffered as a result of his incarceration in that he lost his phone and may lose his Vehicle, and apparently his friends have used one of his credit cards fraudulently resulting in a poor credit rating. Mr. Kabanga advised me that he believes he has been discriminated against because of the fact he was living in Regent Park and that back in 2014 he was labeled as a gang member when that is not the case. He spoke of what he has accomplished while in custody and in addition to obtaining his math credit stated that he is taking an Internet business course through the Toronto District School Board. He intends to never be in this kind of “predicament” again.

[25] Mr. Kabanga has a criminal record, beginning as a youth, which is primarily for various drug offences and breaches of court orders as follows:

Youth Record

2010-11-10 ROBBERY - PROBATION 1 YR AND MANDATORY PROHIBITION (YOUTH JUSTICE ORDER)

Adult Record

2012-02-08 (1) POSSESSION OF A SCHEDULE I SUBSTANCE FOR THE PURPOSE OF TRAFFICKING - 1 DAY PLUS 7 DAYS PRE-SENTENCE CUSTODY & MANDATORY WEAPONS PROHIBITION ORDER SEC 109 CRIMINAL CODE (2) FAIL TO COMPLY WITH RECOGNIZANCE - 1 DAY CONCURRENT
2014-05-12 POSSESSION OF A SCHEDULE I SUBSTANCE – ($50) 5 MONTHS PRE-SENTENCE CUSTODY
2014-11-14 TRAFFIC IN SCHEDULE I SUBSTANCE - 5 MONTHS (10 MONTHS PRE-SENTENCE CUSTODY) & PROBATION 12 MONTHS & MANDATORY WEAPONS PROHIBITION SEC 109 CRIMINAL CODE
2015-06-01 (1) POSSESSION OF A SCHEDULE I SUBSTANCE FOR THE PURPOSE OF TRAFFICKING - 2 MONTHS (10 MONTHS PRE-SENTENCE CUSTODY) & MANDATORY WEAPONS PROHIBITION SEC 109 CRIMINAL CODE (2) FAIL TO COMPLY WITH RECOGNIZANCE - 30 DAYS CONCURRENT (3) POSSESSION OF PROCEEDS OF PROPERTY OBTAINED BY CRIME – 15 DAYS CONCURRENT
2017-06-30 (1) FAIL TO COMPLY WITH PROBATION ORDER – (1) 1 DAY (CREDIT FOR THE EQUIVALENT OF 45 DAYS PRE-SENTENCE CUSTODY) (2) POSSESSION OF A SCHEDULE I SUBSTANCE - 30 DAYS CONCURRENT

Conditions of Custody

[26] Mr. Kabanga filed an affidavit in support of his claim for enhanced pre-sentence credit given conditions while he has been in custody. He deposed that he has spent 1,105 days in pre-sentence custody, or three years and ten days, at the TSDC as a result of the charges before this Court. I note this number is 1,120 as of today. In any event Mr. Kabanga deposed that out of those 1,105 days, he has spent at least 380 in lockdown (34.39%). He deposed that those lockdown days were entirely as a result of institutional limitations in financing or staffing.

[27] During the days in lockdown, Mr. Kabanga deposed that he was confined in his cell with his cellmate and he was not given “regular access” to showers, phone calls, or fresh air in the yard. As a result he was cut off from all contact with friends, family and counsel, he was unable to exercise, get access to fresh air or even move around much, he had no time on his own, he was unable to take proper care of his hygiene and unable to participate in programs offered by the TSDC that he would otherwise attend.

[28] An officer from the TSDC attended on the first day of Mr. Kabanga’s sentencing hearing and he confirmed the accuracy of a chart prepared by someone from the TSDC setting out a record of the lockdowns that applied to Mr. Kabanga, whether they were partial or full and the reasons for the lockdowns, which in some cases was redacted (the “Chart”). This Chart included explanatory notes and was admitted to be accurate and marked as an exhibit on sentencing. It covers two periods of time; the first from August 1, 2015 to October 25, 2015 (Period One), which is stated to have had 47 lock down days and the second from March 27, 2016 to January 11, 2019 (Period Two), which is stated to have had 333 lock down days, which I note totals the number in Mr. Kabanga’s affidavit of 380 days.

[29] One of the explanatory notes for Period One states that where there is a time noted, “whether Full or Partial, is the time the lockdown commenced. Where there is no end time the lockdown would have lasted to the following day. … Where no time is indicated the lockdown was for a full day.” This note also includes a statement that “during normal operations inmates are out of their cells for thirteen hours with free access to fresh air/phone/showers” [emphasis added]. Another explanatory note on the Chart for Period Two gives a different definition for “partial” in that it states that “Partial means one or more units at TSDC was [in] lockdown” and that “Full means all units at TSDC was [in] lockdown”. This note also states that “inmates are entitled to shower and phone calls during lockdowns unless other[wise] stated by the Superintendent or Designates”. It does not appear however that this information is included in the Chart and so I do not accept Ms. Laine’s submission that it is “clear” from the documents received that inmates on lockdown are entitled to a shower and phone calls. I presume this explains Mr. Kabanga’s use of the words “regular access”.

[30] I believe that the backup records the TSDC officer brought to court were made available to counsel but they were not entered into evidence. As neither party sought to call him as a witness I released him so that he could return to his duties at the TSDC.

[31] Ms. Laine submitted that on April 3, 2017 there was a lock-down as a result of a staff assault and that this is the same day that Mr. Kabanga incurred a misconduct. If the suggestion is that it was Mr. Kabanga who committed the assault, there is absolutely no evidence of that or of the submission that he incurred a misconduct on this day. She also submitted that Mr. Kabanga was found guilty of this misconduct and was given a 15 day change of classification, which would have the same effect as if the jail were on lockdown and that as a result, the four lockdown days during this 15 day sentence would have had no effect on him. I have ignored these submissions as Ms. Laine chose not to cross-examine Mr. Kabanga on his affidavit and whatever records she used to obtain this information were not entered into evidence.

[32] Ms. Laine submitted that Mr. Kabanga was only impacted “more substantially” by 220 lockdown days. She comes to this conclusion from the Chart noting that the TSDC was on lock-down for 216 full lock-down days and 161 partial lock-down days for a total of 377 lockdown days. When the records are examined she submits that it is apparent that 121 of these lockdowns occurred at or after 2:00 p.m., thus Mr. Kabanga could only have been affected minimally, given that the jail was not impacted for the majority of the day. In this regard she relies on R. v. Weir, 2018 ONSC 783 at para. 136. I will come back to this submission.

[33] Ms. Laine argues that of the remaining 255 lockdown days, 30 lockdowns were for reasons outside of staffing. Many of these reasons are redacted for security purposes. Ms. Laine submitted that these lockdowns might be categorized as part of the normal operations of the jail. An additional one lockdown day was very short in duration, being three hours. Ms. Laine argued that these days ought not to result in the granting enhanced credit; relying on Weir, supra, at para 137 but I note Garton J. did not come to this conclusion. Her decision not to give enhanced credit for lockdowns was because she had no evidence from the offender as to how the lockdowns impacted him.

[34] Ms. Laine submitted that in Weir, Sgt. Leon Watson from the TSDC testified that during lockdowns inmates are entitled to visit with friends or family in the video monitoring area and consult with counsel and volunteers are permitted to enter during lockdowns to allow inmates to continue with programming, such as the high school credit programming that Mr. Kabanga was enrolled in from 2017 and onwards; Weir, supra at para 38. I have not considered this submission as in my view it is inappropriate to consider evidence from another decision as summarized by the sentencing judge. Furthermore, this evidence is contrary to the information I was given in an affidavit sworn by Mr. Burke, another offender I recently dealt with, which I summarized in R. v. Burke, 2018 ONSC 5183 at paras. 17 to 20, which is more consistent with the evidence of Mr. Kabanga.

Conditions of Release

[35] In this case, Mr. Kabanga was released on strict house arrest conditions on October 26, 2015 which was varied a month later on November 26, 2015. He remained subject to these terms of release until he was re-arrested on March 20, 2016. The claim for enhanced credit is only for the one month period of October 26 to November 26, 2015.

[36] Ms. Laine advises that when the bail was varied on November 26th it was varied to allow Mr. Kabanga to abide instead by a curfew, with numerous exceptions. The stated purpose of the bail variation was to allow him to continue studies at George Brown College, to find work or to participate in counselling or developmental programs. She submits that at the time of his initial arrest, Mr. Kabanga was not enrolled in school, nor does he appear to have been employed and that there is no evidence as to any counselling or developmental programs that he completed, while on bail, that he was prohibited from completing while being on a house arrest condition for one month. There is no claim for an enhanced credit however for the period after November 26, 2015.

Legal Parameters

[37] The maximum sentence for a first offence of possession of a loaded firearm is ten years pursuant to s. 95(2) of the Criminal Code. The mandatory minimum of three years is no longer in effect. The maximum sentence for a first offence of possession of a firearm knowing that its possession is unauthorized is also ten years pursuant to s. 92(3)(a) and for possession of a firearm knowing that the serial number had been defaced the maximum sentence is five years, pursuant to s. 108(2) of the Criminal Code. The breach of the s. 109 order attracts a maximum sentence of ten years pursuant to s. 117.01(3)(a) of the Criminal Code.

Positions of Crown and Defence

[38] Ms. Laine seeks a global sentence of six and one-half years, less pre-sentence credit, which is comprised of five years for the firearm possession and related charges and 18 months for the s. 109 breach, consecutive to the firearms sentence. The Crown also seeks a mandatory DNA order pursuant to s. 487.051(1) and a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code. In addition the Crown seeks an order of forfeiture and disposition of Mr. Kabanga’s Vehicle as offence related property, pursuant to s. 490.1(1) of the Criminal Code, which is still in police possession.

[39] Mr. Holder’s position is that a global sentence in the range of time served of three years [without taking into account the claim for enhanced pre-sentence credit] is warranted. He apportioned this as two and one-half years for the firearms offences and six months consecutive for the s. 109 breach. It is his position that Mr. Kabanga has already accrued somewhere between four and onehalf to five years of pre-sentence credit and so he should be sentenced to time served. He had no issue with the ancillary orders requested by the Crown save for the forfeiture order of the Vehicle.

Case Law

Sentencing for Firearm’s Offences

[40] Both counsel provided cases to me dealing with sentencing in firearm cases in support of their respective positions. I will not refer to all of the cases referred to by counsel; only those that I have found of assistance. Ms. Laine submitted that the case at bar is at the “true criminal end” of the spectrum and that the “tariff” for possession of one handgun that has emerged from the cases is three to six years. However, most of the cases relied upon by Ms. Laine were decided before the Ontario Court of Appeal per Doherty J. A. held in R v. Nur 2013 ONCA 677, [2013] O.J. No. 5120 (“Nur CA Decision”) that the three year mandatory minimum sentence is of no force and effect. The cases Mr. Holder referred to were more recent and therefore of more assistance. He submitted that the case law supported his position that the appropriate sentencing range for this type of offence is between 18 months to three years in custody. Neither Mr. Holder nor Ms. Laine referred to recent authority from our Court of Appeal that of course I should consider. I drew those cases, and a few additional cases that I was aware of that I find to be of assistance, to counsel’s attention.

[41] My starting point is the Supreme Court of Canada’s decision in R. v. Nur, [2015] 1 S.C.R. 553 (“Nur SCC Decision”) where the majority of the court upheld the decision of the Court of Appeal that the mandatory minimum of three years for a first firearm’s offence is null and void under s. 52 of the Constitution Act, 1982. At para. 82, Chief Justice McLachlin, for the majority, stated:

At one end of the range, as Doherty J. A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade …. [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range - indeed for the vast majority of offences - a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. [Emphasis added]

[42] It is clear from this passage of Justice Doherty’s decision, referred to by Chief Justice McLachlin, that by a “true crime” Doherty J.A. was referring to a case where an offender has the firearm in his possession as a “tool of his trade” to use in other illegal activities, such as drug trafficking.

[43] In Nur (trial decision of Code J. at 2011 ONSC 4874, [2011] O.J. No. 3878, (Nur)) the offender was in possession of a loaded semiautomatic handgun with an oversized ammunition clip. There were 23 bullets in the clip and one in the chamber. The gun could fire all 24 rounds in three and one-half seconds. The police found the offender outside a community centre in an area known for gun violence and he was acting as part of a group in a threatening manner that caused the staff to lock down the premises. When the police arrived and approached the offender, he fled. When his attempt to flee appeared to be failing, he tried to dispose of the gun. Police observed him throwing something away in a public area, which was later identified as the handgun. An officer found the loaded handgun under a parked car. Code J. was not able to make any findings as to when, how or why the offender came into possession of the loaded handgun.

[44] Code J. considered the sentencing case law that developed in the ten-year period from 1998 to 2008, when the three-year minimum sentence was enacted, and also what would be a fit sentence in the post-2008 era. During the period that a one year minimum sentence was prescribed for a s. 95 firearms offence, Code J. concluded (at para. 42) that “… the appropriate sentence for a first offence of possession of a loaded handgun simpliciter, that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years’ imprisonment” [emphasis added]. He went on to state (at para. 44) that the bottom end of the range was generally reserved for youth or first offenders with good rehabilitative prospects who pled guilty and the higher end of the range was generally reserved for offenders with prior records who proceeded to trial.

[45] Code J. sentenced the offender to one day in custody after 40 months’ credit for 20 month’s pre-sentence custody, although he found that the offender would have received a sentence of two and one-half years before the introduction of the three year minimum. On that basis he concluded that the three year minimum was not grossly disproportionate as applied to the offender. The Court of Appeal did not interfere with this sentence because the offender was effectively sentenced to time served. Doherty J.A. did state however, at para. 109, that had the trial judge been sentencing the offender without regard to the three year minimum that an appropriate sentence could have been in the range of a maximum reformatory term to a penitentiary sentence of three years.

[46] Doherty J.A. also held at para. 206 that his reasons did not have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what he had described as the “true crime end of the s. 95 spectrum”. He held that:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outline earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years. [Emphasis added]

[47] Chief Justice McLachlin also observed the following at para. 120:

It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles.

[48] There are two recent decisions from our Court of Appeal dealing with appropriate sentences for s. 95 offences. In R v. Marshall 2015 ONCA 692, [2015] O.J. No. 5348, the Court of Appeal upheld a sentence of three years imprisonment for a 23 year old first time offender convicted of joint possession of a loaded prohibited firearm. The firearm was found in a black bag in a closet near the back door of an apartment where drug deals were occurring and the potential for violence was high. At para. 47, Cronk J.A. for the court referred to its earlier decision of Nur at para. 206 where she noted that Doherty J.A. had stated that the s. 95 statutory mandatory minimum aside, offenders who engage in s. 95 offences at the “true crime end of the s. 95 spectrum of offences” should continue to receive exemplary sentences that emphasize deterrence and denunciation and that:

47 … “[i]ndividuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others” will attract such sentences, regardless of the constitutionality of the three-year minimum penalty. [Emphasis added]

[49] Cronk J.A. found that this was a case at the “true crime” end of the s. 95 spectrum because the offender admitted he was in the location where he was arrested for the express purpose of trafficking in drugs and he was in a location where drug deals were occurring, several individuals were present and the potential for violence was high (at paras. 48-49). In upholding the decision of the trial judge, Cronk J. A. stated, at para. 53:

The trial judge considered the appellant’s youthfulness. While the sentence imposed would be the appellant’s first penitentiary sentence, his crime was serious and committed in the course of his commission of other admitted drug-related crimes. Although the courts should impose the shortest possible sentence in cases involving a youthful first time offender, the sentence must be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence.

[50] Ms. Laine referred to R. v. McCue, (2012) ONCA 773. In this case, the police were looking for the offender and saw him leave his residence and enter a taxi. They followed the taxi and when he got out, he fled the scene. The police chased him through several backyards and eventually apprehended him. A police search of the route followed led to the discovery of a loaded semi-automatic handgun in the backyard of one of the homes. The court concluded that the offender had thrown the gun away as he fled from police.

[51] The Court of Appeal disagreed with the finding of the trial judge that these facts could be characterized as a “minimal situation” and imposed a sentence of four years for the possession of a loaded prohibited firearm conviction and a further six months for a robbery conviction and 90 days for a mischief conviction, both consecutive to the other sentence. The court found (at paras. 15 and 16):

The respondent had a loaded gun when he left his residence and travelled in a taxi. He clearly intended to have the gun on his person in public places. His possession of a loaded firearm while attempting to escape the police is a significant aggravating factor. He gets no credit for throwing the gun away while attempting to avoid capture. Furthermore, discarding a loaded handgun in someone’s backyard in a highly populated residential area invites tragedy. Had the police not located the loaded gun, who knows what might have happened? Finally, we see no reason to infer anything other than that the respondent intended to “actively use” the loaded gun for some purpose if he saw the need. Why else would he have it in his possession?

The circumstances of the offence called for a significant sentence. [Emphasis added]

[52] The Court of Appeal noted, at para. 16, that at trial the parties proceeded on the basis that the three-year minimum was inapplicable and that they should not have done so, but that that error did not have any effect on the sentence imposed. Although the sentence imposed by the Court of Appeal reflected the three-year minimum, some of the facts of this case are similar to the case at bar in that Mr. Kabanga had a loaded firearm in his Vehicle and I can infer that he did so in order that he would have access to it if he saw the need. There is no evidence however that he ever actually had the firearm out in public and he was not found in possession of a firearm when arrested.

[53] Ms. Laine also relied on the trial level decision of R. v. Mansingh [2016] ONSC 94 where a first offender was convicted of several gun-related charges arising out of a single incident. He was in possession of marijuana and had discarded a loaded handgun on the front lawn of a home as he ran from police. Goldstein J. sentenced the offender to 43 months. He found that the offender was engaged in commercial drug activity at the low end at the time and treated this as a significantly aggravating factor. In coming to his decision, Goldstein J. reviewed cases relied upon by the defence in support of their submission that an 18 month sentence should be imposed. Goldstein J. stated at paras. 40 and 42:

Illegal handguns serve only one purpose: to kill other human beings. These weapons serve no lawful purpose. Hunters don’t hunt with them, farmers don’t protect their livestock with them, and biathletes don’t train with them. Illegal handguns are an insidious form of firearm that has been the cause of much death grief, anguish, and loss in our community. Possession of this form of handgun is a true crime, aggravated by Mr. Mansingh's use of it in conjunction with drug trafficking in a high-crime residential apartment building and his attempt to discard it.

Our community abhors gun violence. Our courts have denounced the possession of firearms over and over again, in the strongest terms. With the greatest of respect to those who would impose less than exemplary sentences for firearms offences, I do not agree that they are appropriate. Despite Mr. Richardson’s very able submissions and the material that he has so impressively marshaled, I respectfully find that anything less than a significant penitentiary sentence for possession of a loaded restricted or prohibited hand gun even for a fist offender is inappropriate unless there are exceptional circumstances.

[54] This decision was upheld on appeal; [2017] O.J. No. 379 (C.A.) where the court held as follows:

24 … this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child. [Emphasis added]

[55] In addition Ms. Laine relied on various trial decisions. The more relevant ones are:

a) R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710 (S.C.J.). In that case the offender was 23 years old at the time of his arrest. He was convicted after a trial of possession of two firearms, a magazine and related ammunition found in a storage locker and related charges. Both firearms were loaded but Patillo J. noted at para. 21 that they were not close at hand to be used, that the serial numbers had not been removed and there was no evidence that the guns had been used in any crime. The offender had no criminal record and Pattillo J. concluded that his prospects of rehabilitation were good and that he had family support. He sentenced the offender to four years' imprisonment on each count for the possession of the firearms, to run concurrently. I note however that the defence in that case sought a four year sentence whereas the Crown sought a five and one-half year sentence, which in my view is significant particularly given this case was decided when the mandatory three year minimum was in force. I therefore did not find this sentence to be of much assistance.

b) R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 (S.C.J.). In this case, following a routine traffic stop, officers found a loaded handgun hidden in a secret compartment concealed at the base of the gear shift of the vehicle. The offender was also found in possession of marijuana and crack cocaine but those charges were withdrawn by the Crown. He had a criminal record, which included possession for the purpose of trafficking in Schedule I and II substances and for theft under and assault and committed the offences while on bail. Justice Harvison-Young (as she then was) sentenced the 25 year old offender to 44 months for the firearms related counts to be served concurrently and six months consecutive for the breach of a s. 109 order. Ms. Laine relies on para. 8 of this decision where Harvison-Young J. stated that in these circumstances the sentencing range was four to six years but I note that she stated that this was taking the three year minimum into account, which was still in force at that time. I do note however that this case is similar factually to the case at bar.

c) R. v. Harutyunya, 2012 ONSC 58, [2012] O.J. No. 177, aff’d [2012] O.J. No. 4417; is a decision of Justice Benotto (as she then was) where the firearm fell from the offender’s pants when he was arrested, after being removed from a car stopped by police. Although I do not find this case of assistance in terms of sentence as the three year minimum was still in force, Benotto J. noted that:

… the aggravating factor here is the heightened danger to the public. The firearm was loaded, concealed on his person, in a vehicle on a public highway. The danger to the public cannot be overstated. Sadly our courts have seen too many situations where innocent bystanders are injured or killed. The very presence of a loaded semiautomatic firearm constitutes such a public danger that a significant denunciation and deterrent consideration is engaged. (at para. 16)

d) R. v. Gobire 2013 ONSC 3073, [2013] O.J. No. 2431 (S.C.J.). In this case the offender had twice breached conditions of his bail and was found carrying a concealed loaded firearm in public, which he said was for self defence. Mitigating factors were the offender’s youth (22), apparent desire to change positively, remorse and admission of the guilt after his Charter application failed. At para. 20 Goldstein J. held that the “appropriate range of sentence for a youthful offender who carries around a loaded firearm in downtown Toronto and has violated his bail is 4 to 6 years.” He sentenced the offender to “just over four years”. This case was decided before the Nur CA Decision and counsel did not argue that the three year mandatory minimum sentence for a conviction contrary to s. 95(1) of the Criminal Code was grossly disproportionate in those circumstances and so again I did not find this case to be of much assistance for that reason.

e) R. v. Carrol, 2014 ONSC 2063. In this case the offender was found in possession of a loaded hand gun under a seat where he was sitting in a garage located behind a residential home that was being used as a social “hangout”. Close by was a backpack with ammunition suitable for use with the handgun. Molloy J. found at para. 9 that this setting put the lives of others at risk and was inherently dangerous and at para. 25 that the offender’s possession of the firearm was at the “outlaw” lend of the spectrum. She sentenced the offender, who was 23 at the time of the offence and had a lengthy and significant criminal record that included robbery and carrying a concealed weapon, to four and one-half years, which she concluded was “necessary in order to reflect the goals of deterrence and denunciation and the seriously aggravating factor of the criminal record” (at para. 29).

f) R. v. Barnes, 2017 O.J. No. 1742 (S.C.J.). In this case the police found a loaded handgun in a locked safe along with ammunition. The offender had absconded for six months and at the time of his arrest was on bail. He was also found guilty of breaching three weapons’ prohibition orders. The offender had a serious and lengthy criminal record. Allen J. sentenced the offender to five years on the two firearm charges, to run concurrently and one year for each firearm prohibition charges, to run concurrently, for a total sentence of six years.

g) R. v. Jama, 2018 ONSC 1252, [2018] O.J. No. 1130 (S.C.J.). In this case the defendant was found carrying a gun in his waistband. He had a minor criminal record and had not served any custodial sentences. Counsel for the offender submitted that he felt the need to carry the weapon for self-defence, given that he had been shot in the past. Goldstein J. concluded, “[e]ven accepting those facts at face value, that is no justification for carrying a dangerous illegal handgun. As I, and others, have observed in numerous gun cases, Mr. Jama does not need a handgun for protection; rather, society needs protection from the likes of those who carry these weapons”. Goldstein J. went on to conclude that this was a “most dangerous type of offence, and a true crime” [emphasis added] and that an exemplary sentence was called for. Following a guilty plea, the offender was sentenced to three years.

[56] Turning to the cases Mr. Holder relies upon, he referred to the recent decision of Schreck J. in R. v. Elvira 2018 ONSC 7008, [2018] OJ. No. 6185 for the purpose of how I should consider Mr. Kabanga’s African Canadian heritage, which I will come to, but I note that at para. 27 Justice Schreck concluded that for s. 95 offences that fall at the “true crime” end of the spectrum a review of relatively recent trial and appellate decisions suggest that while sentences as low as two years less a day can be imposed in cases with significant mitigating features, the usual range is three to five years. In that case the offender was 24 at the time of the trial, he had no criminal record and the loaded revolver was found in plain view on top of a small table in his bedroom in the house he shared with his brother and two others. In addition heroin and cocaine was found in the pockets of a jacket, which Schreck J. found was for the purpose of trafficking. He sentenced the offender to three years for the s. 95 offence, paying particular attention to the principle that a first sentence of imprisonment ought to be as short as possible (at para. 32).

[57] Mr. Holder also relied on the following sentencing decisions, a number of which are cases that I have decided:

a) R. v. Truong, 2010 ONSC 7251 was decided when s. 95 carried a mandatory minimum penalty of one year. Mr. Holder submitted that this case is still helpful because it involves an analysis of ranges prior to the implementation of the three year mandatory minimum. In this case the defendant possessed a loaded revolver in a crack house. He had a youth court record and Code J. held, at para. 21 that the offender could not benefit from the usual mitigating circumstances seen in the cases at the bottom end of the range, namely, guilty pleas, remorse and absence of a criminal record. However, because the offender was still young and had made excellent progress in the prior two years and he finally seemed to be showing rehabilitative potential, Code J. concluded the offender was entitled to some leniency, within an otherwise appropriate range. He sentenced the offender to two and one-half years and two years’ probation. Code J. noted that exemplary or denunciatory sentences must be imposed for the possession of loaded handguns due to the immense danger to the public. At paragraph 18, he stated:

From my reading of the recent case law, the appropriate sentencing range for a first offence of possession of a loaded handgun simpliciter, that is, in cases where there are no additional convictions such as for drug trafficking, is between two years less a day and three years imprisonment. Much longer sentences are imposed for recidivists. I am referring to the appropriate range for s. 95(1) cases decided under the one year mandatory minimum regime, like the case at bar, which has been in force since 1998. The mandatory minimum was increased to three years in 2008. [Emphasis added]

b) R. v. Z.L.M., 2011 ONSC 4051 is a case that I decided where the offender changed his plea to guilty on most of the charges after a Charter application was dismissed. This was a mitigating factor. The offender was carrying a loaded firearm in a mall during the holiday season and was apprehended after a struggle. He made no attempt to use the firearm at any time but in those circumstances I found it could have discharged accidentally and injured or killed someone. I also found that although the offender was not actively trafficking in marijuana at the time, he had marijuana in his possession ready for sale. This was the first firearms offence for this offender and although he had a criminal record, most of it was in the Youth Justice Court. He was 22 at the time of the offences and I determined that there was a real prospect of rehabilitation. I sentenced him to a global sentence of 37 months; 36 months attributable to the firearms offences and one month for possession of marijuana to be followed by probation for eighteen months on strict terms.

c) R. v. Cadienhead [2015] O.J. No. 3125. In this case Justice Allen dealt with a young offender who was barely an adult when he committed the offences of possession of a loaded firearm, possession of firearm with a defaced serial number, and failure to comply with probation. At para. 28, Allen J. concluded that an 18 month sentence was appropriate for the offender, despite some serious aggravating factors. Listed at para. 13, the most serious factors included the fact that the offender had walked down a residential street at night with the firearm hidden in his boxer shorts, which posed a danger to himself and others and he was subject to a weapons prohibition order. However, taking into account his young age, his traumatic childhood, and the fact that he had returned to school, had only one entry of theft under on his criminal record and had expressed remorse, Justice Allen determined that an 18 month sentence was appropriate for the firearms possession charges.

d) R v Yusuf, 2016 ONSC 2347 is a case I decided. Mr. Holder submitted the offender had a strikingly similar background to Mr. Kabanga although he conceded that the circumstances of the offence were very different from the case at bar. In that case the offender had just turned 18 years old two days before he committed the offences, he had been raised in a low-income neighbourhood with a high concentration of crime, poverty, unemployment and disenfranchised youth, he experienced difficulties in school, was four credits shy of earning his high school diploma, had a minimal employment history and was not associated with any gang and I concluded that he had expressed remorse and there was considerable potential for rehabilitation. Mr. Yusuf had no criminal record, although he did admit to being charged and arrested before. Mr. Holder also conceded that Mr. Kabanga’s criminal record is an aggravating factor that was not present in Yusuf, but he argued that the circumstances of the offence in Yusuf were much more serious. Mr. Yusuf had concealed the firearm on his person, and had been out in public for a lengthy period of time. The firearm also had no safety, which posed a very danger to himself and others. Ultimately, I sentenced the offender to two and one half years in custody.

e) R. v. Douale, 2018 ONSC 3658, [2018] O.J. No. 3141, (S.C.J.) Corrick J. sentenced an offender who had been found guilty of possession of a prohibited firearm and various related offences, as well as two counts of robbery, one count of pointing a firearm and one count of breaching a weapons prohibition order to a global sentence of six years in custody. The offender is this case took the TTC to sell someone cocaine while armed with a loaded firearm. He was 32 with an “unenviable criminal record” which included prior drug offences but no prior firearm offences. Corrick J. found the fact that he had displayed or used a loaded firearm on a public street to be a significant aggravating factor and that the conviction for breach of a prohibition order required a consecutive sentence of one year (at paras. 25 and 43). At para. 25 Justice Corrick found that the “range of sentence for possession of a loaded firearm, where there has been no public display of the firearm, is between two and four years.” [Emphasis added]

f) R. v. Roy [2018] O.J. No. 3427, (O.C.J.). In this case the offender had been driving on a public street with a loaded handgun concealed in his waistband. He pleaded guilty which was a significant mitigating factor. The additional aggravating and mitigating factors, which are summarized at paras. 14-15, included the fact that the offender had a condition prohibiting the possession of weapons, a criminal record, although notably no prior convictions for firearms or violent offences and the firearm had the serial number filed off. Mitigating factors included the fact that the offender was young (21 at the time of the offence, 22 at the time of sentencing), had had a tragic childhood, which Moore J. noted was not only a mitigating factor, but also somewhat explained and attenuated his prior poor performance on probation and his criminal record. The offender had never served any real custodial sentences in the past. Moore J. imposed a sentence of 21 months for the firearms possession charges. In considering the seriousness of the offence with the reasoning in Nur, he held at para. 23: “I find that as there is no link between Mr. Roy's possession and drug trafficking or proof that he possessed the weapon as a "tool of his criminal trade", that this offence falls in the middle category described by the Chief Justice. [Emphasis added] At para. 24, Moore J. adopted a review of case law by Pringle J. in R. v. Reyes [2018] O.J. No. 1560 (O.C.J.) and found, at para. 25, that the appropriate range for a s. 95 offence “which does not have the aggravating feature of the ‘toxic combination’ of weapons possession with drug trafficking”, to be between 18 months and 3 years.

g) R. v. Morris [2018] O.J. No. 4631 (S.C.J.). In this case the offender was found carrying a loaded .38 caliber revolver and ammunition concealed in his jacket in public. Justice Nakatsuru found at para. 67, in assessing the seriousness of the offence, that there was no evidence that the offender’s possession of the gun was connected with other crimes, such as crimes of violence or drug trafficking. Nakatsuru J. considered the fact that the offender had no criminal record and that he was of African-Canadian descent. He sentenced the offender to 12 months’ imprisonment followed by 18 months’ probation.

h) R. v. Burke, 2018 ONSC 5183. This is another one of my decisions. In this case the firearm was located in a personal residence as a result of a search warrant execution. Although there was no direct evidence of public display or that the firearm had been taken out of the offender’s apartment, I found that there was a reasonable inference, given he was storing it loaded, in a jacket pocket, ready for use, that this is how he intended to use it. It was not for example in the safe found in his room. The offender had a criminal record, but had never served a sentence of longer than 25 days and so I took the “jump” principle into account and sentenced the offender to 24 months. In this case I engaged in an analysis of sentencing case law for s. 95(1) offences and I concluded at paragraph 52:

I turn then to what is an appropriate sentence in this case. I do not agree with Ms. Marrocco that the “tariff” for possession of one handgun in a case such as this is 3 to 3.5 years. Mr. Mencel has provided cases that certainly support the conclusion that Justice Corrick came to in Douale, supra at para. 25, that the range of sentence for possession of a loaded firearm, where there has been no public display of the firearm, begins at two years and perhaps even at 18 months in exceptional circumstances. Based on the cases I have seen the top of the range is closer to three years.

Sentences for Breach of Prohibition Orders

[58] Counsel agreed that the sentence for breach of the weapons prohibition order should run consecutively to the firearms convictions. In my view, for reasons I expressed in R v. Smickle, [2008] O.J. No. 2231, at paras. 55-57, a consecutive sentence is appropriate to bring home to Mr. Kabanga the severity of this offence. In Smickle I found that in cases where the courts have imposed consecutive sentences for breach of a weapons prohibition order, the sentences have ranged from six to 18 months; at para. 76. As I stated in that case, I share the concerns expressed by Nordheimer J., (as he then was), in R. v. Brown, [2005] O.J. No. 5321 (S.C.J.) that if weapons prohibition orders are to have any meaning, it must be made clear by the courts to all persons subject to such orders that if they choose to breach such orders, there will be severe consequences.

[59] In Carrol, supra, at para. 30, Molloy J. held that “[b]reaching one prohibition order will typically warrant a one-year sentence. For multiple breaches, I consider 18 months to be a fit sentence.” The offender was convicted of breaching three weapons prohibition orders and sentenced to 18 months concurrent for each of the breaches but consecutive to the firearms sentence.

Impact of the fact Mr. Kabanga is an African-Canadian

[60] Counsel made voluminous submissions on how the fact that Mr. Kabanga is of African descent should factor into my sentencing decision. Mr. Holder referred to the recent decision of Schreck J. in Elvira, supra, where he considered the decisions of Justice Nakatsuru in R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136 and R. v. Morris [2018] O.J. No. 4631; cases where Nakatsuru J. considered evidence of systemic racism as mitigating factors in his sentencing of African Canadian offenders for firearms offences.

[61] Mr. Holder also relied on R. v. Reid, 2016 ONSC 954, a decision of this court by Justice Morgan. In that case Justice Morgan considered the fact that the offender was black and the need to ameliorate the over incarceration of young men in the African Canadian community. At para. 27 he concluded that: ‘[w]hile this court is not in a position to remedy the societal issues, it can and should take the societal context into account in fashioning an appropriate sentence for an individual offender.”

[62] In my recent decision; R. v. Shallow, 2019 ONSC 403, which I provided to counsel, I considered the decision of R. v. Borde, [2003] O.J. No. 354 (C.A.) as well as Jackson. I was not referred to Morris or Williams.

[63] Ms. Laine advised me that the Jackson case is under appeal and clearly the Crown takes a very different view on this serious issue. It is her position that any relevance that systemic and background factors have to moral blameworthiness should not be extended to the issue of denunciation as it relates to serious crimes for non-indigenous offenders. Given the conclusion that I have come to on an appropriate global sentence in this case and the appropriate credit for pre-sentence custody, I have concluded that it is not necessary for me to weigh into this debate in this case. I have however considered the circumstances of Mr. Kabanga’s upbringing which I would do in any case.

Claim for an Enhanced Credit for Pre-Sentence Custody

Conditions of Custody

[64] In R v. Duncan, 2016 ONCA 754, the Court of Appeal held that an offender may be given credit for time spent in custody in excess of 1.5 days per day served, given the conditions under which the offender was held in custody. The court held, at para. 6, that:

… particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. [Emphasis added]

[65] In Duncan, there were a number of lockdowns due to staffing issues, but there was no evidence regarding the adverse effect these lockdowns had on the particular offender. In fact, Mr. Duncan took positive steps towards his rehabilitation while he was in pre-sentence custody. As such, he was not granted any enhanced credit beyond 1.5:1 because of the absence of evidence regarding how this situation impacted him.

[66] I advised counsel that both Forestell J. in R v. Inniss, 2017 ONSC 2779, at para. 38, and Corrick J. in Doule, supra, at paras. 45-53, had applied this principal and that I had done so as well in Burke, supra. In Inniss, Justice Forestell reduced a ten year sentence by one year. In Doule Corrick J. gave the offender a credit of nine months in addition to the usual 1.5 credit for the time served in pre-sentence custody. Those harsh conditions included triple bunking, which is not the case here. It is not clear how the nine months was calculated.

[67] In the case of Mr. Kabanga, his time in custody did not include triple bunking, but nevertheless the lockdowns were numerous and had an adverse impact on him. I stated in Burke that I would not say that every case justifies a credit at the rate of 2:1 but in that case I was satisfied it was justified even though Mr. Burke had been able to accomplish a lot while in custody despite adverse conditions.

[68] The Ontario Court of Appeal re-affirmed the general position that evidence must be introduced as to how lockdowns have a particularly harsh impact on the offender in question in R. v. Henry [2016] O.J. No. 5897 (C.A.) at para 9. There, the court held that the sentencing judge did not err in declining to give enhanced credit beyond the normal 1.5:1 ratio. There was an absence of any evidence as to an adverse effect on Mr. Henry, flowing from the lock-downs.

[69] Mr. Holder referred to R. v. Qureshi 2019 ONSC 162 where at para. 57, Quigley J. found that because the institutional records showed that the offender spent 130 days in lockdown while she was in custody, that she receive enhanced credit of 2:1 for those days, but I note in that case this was with the consent of both the Crown and Defence.

[70] In Jama, supra, Justice Goldstein noted the following at paras. 20-21 in regards to lockdowns at TSDC:

… We should have real concerns about conditions at the Toronto South. We should also have real concerns on behalf of a very young man incarcerated for a lengthy period of time who chooses to remain in Toronto to be closer to his family. Furthermore, we should not simply normalize unacceptable conditions in a jail. It must be remembered that people like Mr. Jama enjoy the presumption of innocence -- or at least he did until he pleaded guilty. But even after pleading guilty he remains a human being who retains every single right that other human beings in our society retain, except the right to be at liberty outside the institution. Lockdowns arising from staff shortages, and even those arising from security reasons, should not be seen as just the price to be paid by those in custody. [Emphasis added]

I also do not agree that we should be meticulously scrutinizing the lockdown records for “legitimate” lockdowns versus lockdowns that are the result of staff shortages or other institutional issues. A lockdown that is not fault of an inmate affects him or her in exactly the same way whether it is because someone else’s cell needed to be searched for contraband, or the correctional officers are on a work-to rules”.

[71] In R v J.B., 2016 ONSC 939, (S.C.J.) Justice O’Marra noted at paragraph 22:

The fact that an inmate has experienced lockdowns certainly does not lead automatically to any additional mitigation of their ultimate sentence. However, a prolonged lockdown that is unrelated to the misconduct of the accused before the court may constitute harsh conditions that merit some mitigation of sentence. A lockdown is not the norm within the institution and it should not be viewed as such. When a lockdown occurs, the inmate is cut off from contact with the outside world, including family, friends and counsel. [Emphasis added]

[72] Ms. Laine relied on the following cases:

a) R. v. Yaali, [2018] O.J. No. 3058 (S.C.J) at paras 75-76. The defence introduced jail records detailing the periods of lockdowns affecting the offender. The court found that although it was worrisome that there were so many staffing issues, the absence of evidence as to how these lockdowns affected the inmate in a particularly harsh manner was an impediment to obtaining enhanced credit. In the end, because there was no evidence on this point, the court found that the defence had not met their onus.

b) R. v. Singh, 2018 ONSC 3850, [2018] O.J. No. 3292 (S.C.J). at para 112. The court held that, “circumstantial inferences do not permit me to conclude what the detrimental effect on these men was, if any. Enhanced credit has never been given absent specific evidence for the offender or from a correctional official. Neither has been proffered in this case. The leap from evidence of lockdowns to detrimental effect on the offenders is more speculation than it is permissible inference”.

c) R. v. Weir, 2018 ONSC 783, [2018] O.J. No. 2475 (S.C.J.). After hearing evidence from a jail official, the court found that a myriad of issues impacts whether a particular offender is impacted by lockdowns. Lockdowns do not necessarily mean that a prisoner is deprived of basic needs, access to counsel or programming. Rather, it depends on the particular circumstances of the lockdowns. The timing of lockdowns is a relevant factor.

[73] I appreciate that Justice Garton in Wier was either given information as to the hours of the lockdowns or she did her own analysis. In my view, this imposes a substantial burden on the court as it would take considerable time on my part to check Ms. Laine’s math and furthermore, even if I could, her calculations do not appear to take into account what the end time of the lockdowns was. There is no end time listed for any of the lockdowns, which according to the explanatory notes means that they lasted into the following day. That however is not noted as in many of those cases no lockdown is noted for the following day.

[74] I also am of the view that we should not require officers from the detention centre to attend to give this kind of detailed evidence in every case. The staff shortages at the TSDC are notorious and to insist on this kind of evidence in every case would put an impossible burden on their staff.

[75] I have concluded that Mr. Kabanga is entitled to some enhanced pre-sentence credit because a significant period to his detention was spent under lockdown and he has provided evidence, which Ms. Laine did not challenge by way of cross-examination, of the adverse impact this had on him. I will come to how I intend to quantify this.

Conditions of Release

[76] Mr. Holder also submitted that Mr. Kabanga is entitled to some pre-sentence credit for time spent under strict house arrest conditions as part of his release on bail, pursuant to R v Downes, [2006] O.J. No 555. In Downes at para. 33, the Court of Appeal stated that "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. ... [I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account." [Emphasis added]

[77] Mr. Kabanga was under strict house arrest from October 26, 2015 to November 26, 2015, for a total of 31 days. Like lockdowns, there has not been a set ratio established by case law, but Mr. Holder submitted that a 0.25:1 credit would be appropriate here. In R. v. Qureshi, 2019 ONSC 162, Justice Quigley gave 213 days of credit for 799 days spent under restrictive bail conditions, which is just slightly over 0.25:1 (paragraph 58) and in R v Sandhu, 2016 ONSC 7946, Justice McCombs gave a credit of 0.25:1 (paragraph 44).

[78] In R. v. Ijan, 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.) the Court of Appeal considered whether or not the sentencing judge had erred in principle by failing to consider the appellant's stringent pre-trial bail conditions as a mitigating factor. At para. 26, the court noted that the sentencing judge did not mention pre-trial bail as a mitigating factor. The appellant submitted that this constituted an error in principle because of what the Court of Appeal had said in Downes at para. 33 as set out above. At paras. 28 – 38, the court rejected this submission for a number of reasons. It concluded that the fact situation in Downes and this case were substantially different in that in Downes, the house arrest bail regime remained in place for eighteen months whereas in Ijan it lasted only five weeks and was then replaced by a less stringent regime. Furthermore, in Ijan the court found that the record before the sentencing judge did not demonstrate that the bail conditions had prejudiced, or imposed undue hardship on the appellant. The court also found that it is desirable that appellate courts not hamstring judges in their weighing of relevant factors in the sentencing process. The sentencing judge in this case addressed twelve mitigating and aggravating factors in his reasons and although this thirteenth factor - pre-trial bail - was the subject of submissions it made no sense to conclude that the sentencing judge failed to consider it, or to take it into account in his sentencing calculus although it would have been preferable had the sentencing judge explicitly explained that conclusion.

[79] At para. 32 the court noted that Downes itself recognized that the imposition of absolutes by appellate courts on sentencing judges is to be avoided. In the paragraph immediately before the one relied on by the appellant in this appeal, [para. 33 set out above] Rosenberg J.A. cited passages from two appellate authorities, R. v. Lau (2004), 2004 ABCA 408, 193 C.C.C. (3d) 51 at para. 15 (Alta. C.A.) and R. v. Spencer (2004), 186 C.C.C. (3d) 181 at para. 43 (Ont. C.A.), where the courts stated that stringent bail conditions "may" and "can" be taken into account and have a mitigating effect on sentence. The court went on at para. 33 to note that this conclusion is reinforced by the sentencing principles outlined in s. 719(3) the Criminal Code, which provides that time spent in custody as a result of an offence may be taken into account by a sentencing judge in determining the sentence and that the Code has not been amended to include reference to pre-trial bail, in a manner analogous to the treatment of "time spent in custody" under s. 719(3). The absence of such provisions concerning pre-trial bail reinforces the conclusion that pre-trial bail should not be seen as a compulsory or inflexible mitigation factor.

[80] The court also referred to its earlier decision of R. v. Hunjan, [2007] O.J. No. 520, 2007 ONCA 102 (C.A.) where again the sentencing judge emphasized the important points - both mitigating and aggravating - and did not expressly mention pre-trial bail. The court found at para. 35 that nevertheless it was inconceivable that the sentencing judge did not consider this and at paras. 36-37 held that it did:

36 … not accept the proposition that bail, even with stringent conditions, and pre-trial custody are to be regarded as equivalents in every case. Put bluntly, bail is not jail. Bail is what an accused person desires to stay out of jail. That is because, at a practical, common sense level known to all accused persons, the pith and substance of bail is liberty, whereas the essence of jail is a profound loss of liberty.

37 The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases - Downes, with long-term house arrest bail conditions, is one - where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases - Lawes and Hunjan are examples - where this factor should attract little, if any, weight.

[81] Ms. Laine also submitted that although time spent under stringent bail conditions (typically, strict house arrest) should be considered by a judge, this Court has rejected a fixed formula for taking account of it, recognizing that there will be variations in its potential impact on the sentence and that the circumstances may dictate that little or no credit should be given in a particular case. It is only one factor to be considered along with the myriad of other mitigating and aggravating circumstances that may impact on the sentence. In particular, the Ontario Court of Appeal in R. v. Laws [2007] O.J. No. 50 (C.A.) at para. 10 noted, in a case involving an offender convicted of possessing a firearm that

In our view, even if the experienced trial judge failed to consider the appellant's bail conditions as a mitigating factor in fixing sentence pursuant to R. v. Downes [citation omitted] his failure to do so is not fatal to the ultimate sentence imposed. He was entitled to emphasize community safety and the need to continue to send the message of deterrence to those who threaten that safety with firearms. This is particularly the case where - as here - the firearm was high calibre, fully loaded, ready to fire, and had the serial numbers obliterated.

[82] Ms. Laine also relies on para. 37 of Downes, supra where the court noted that, “where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.”

Forfeiture of the Vehicle

[83] “Offence-related property” is defined in s. 2 of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-4

R. v. Kabanga-Muanza, 2019 ONSC 1161

Case Summary

REASONS FOR SENTENCE

Overview

The Facts

Legal Parameters

Positions of Crown and Defence

Case Law

Sentencing for Firearm’s Offences

Sentences for Breach of Prohibition Orders

Impact of the fact Mr. Kabanga is an African-Canadian

Claim for an Enhanced Credit for Pre-Sentence Custody

Conditions of Custody

Conditions of Release

Forfeiture of the Vehicle

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 2

Legislation 2