COURT FILE NO.: CR-18-30000559 DATE: 20190109 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – KHALIFE BARTHOLOMEW

Julie Battersby for the Crown Anthony Marchetti for the accused HEARD: December 6, 2018

REASONS FOR SENTENCE

FAVREAU:

Introduction

[1] On October 25, 2018, a jury found Khalife Bartholomew guilty of one count of break and enter and theft of a firearm contrary to section 98(1)(b) of the Criminal Code, one count of conspiracy to break and enter to steal a firearm contrary to section 465(1)(c) of the Criminal Code, six counts of knowingly occupying a vehicle with a firearm without a lawful excuse contrary to section 94(1) of the Criminal Code, four counts of possession of a firearm without a license contrary to section 92(1) of the Criminal Code, four counts of possession of a firearm knowingly obtained by crime contrary to section 96(1) of the Criminal Code, and one count of possession of property obtained by crime with a value not exceeding $5000 contrary to section 354(1) of the Criminal Code.

[2] On December 6, 2018, I heard sentencing submissions.

[3] This is my decision on the fit sentence for Mr. Batholomew.

Circumstances of the offences

[4] Section 724(2) of the Criminal Code sets out the principles that must guide the sentencing judge in determining the relevant facts following a conviction by a jury. Pursuant to section 724(2)(a), the sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty", and section 724(2)(b) provides that the judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact".

[5] In addition, section 724(d) provides that any additional facts relied on for sentencing must be proven on a balance of probabilities subject to section 724(3)(e), which directs that if any such facts are an aggravating factor, it is the Crown's burden to prove those facts beyond a reasonable doubt.

[6] In R. v. Ferguson, 2008 SCC 6, at paras. 16-18, the Supreme Court of Canada reviewed the relevant principles that govern sentencing following a jury verdict:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[7] Based on these principles, I find that the following facts are essential to the jury's verdict and relevant to sentencing in this matter.

Theft of firearms on July 19, 2016

[8] While Mr. Bartholomew was found guilty of 17 charges, with the exception of the charge of possession of the proceeds of crime, all of the convictions arise from the theft of six firearms on July 19, 2016. The theft occurred at a residence in Toronto, where the owner of the home kept a personal collection of handguns in the basement.

[9] There were four other people involved in the break and enter:

a. Brendan Balchand, with whom Mr. Bartholomew had been friends for a number of years;

b. Michael Shawaga-Grose, who was unknown to Mr. Bartholomew until at least the day before the theft; [1]

c. Christie-Lee Evans, who was also unknown to Mr. Bartholomew until the day of the theft and who was Mr. Shawaga-Grose's girlfriend; and

d. Kaylee Secord, who Mr. Bartholomew had known for some time as Mr. Balchand's girlfriend.

[10] The Crown's evidence at trial included the testimony of the homeowners where the break and enter occurred and one of their neighbours, the testimony of Mr. Balchand and Ms. Secord, the testimony of two police officers, video footage in the common areas of Mr. Balchand and Ms. Secord's apartment building, video footage from the front of the house where the guns were stolen and text messages from Ms. Secord's phone and from Mr. Balchand's phone. Mr. Bartholomew testified in his own defence.

[11] The relevant evidence at trial was as follows:

a. Ms. Evans was aware that handguns were located in the house that was broken into, and she shared that information with Mr. Balchand and Mr. Shawaga-Grose. She also told them that no one was going to be home on July 19, 2016.

b. On July 18, 2016, Mr. Balchand and Mr. Shawaga-Grose met to plan the theft.

c. On the morning of July 19, 2016, Mr. Bartholomew went to Mr. Balchand and Ms. Secord's apartment. The three of them left together.

d. Mr. Bartholomew then drove his car to pick up Mr. Shawaga-Grose and Ms. Evans. Mr. Bartholomew eventually drove to the house where the firearms were stolen. Mr. Bartholomew drove past the house a number of times.

e. At one point, while the female owner was still at the house, Ms. Evans walked up to the house to ask if the daughter was home. The female owner then left in her car.

f. Mr. Balchand and Mr. Shawaga-Grose walked up and down the street in front of the house a number of times, telling the neighbour they were looking for their dog. Eventually, they entered the house. While they were in the house, they stole six handguns registered to the male owner of the house. They left the house carrying bags containing the firearms.

g. Meanwhile, Mr. Bartholomew had parked his car at the foot of the street, where he waited with Ms. Evans and Ms. Secord outside the car.

h. Once Mr. Balchand and Mr. Shawaga-Grose left the house, they went toward Mr. Bartholomew's car. Everyone got in the car, and Mr. Bartholomew drove away.

i. Later in the afternoon, Mr. Bartholomew, Mr. Balchand and Ms. Secord arrived at the building where Mr. Balchand and Ms. Secord resided. When they entered the building, Mr. Balchand was carrying a black bag, which belonged to Mr. Bartholomew.

j. Later that evening, Mr. Bartholomew left the building carrying his black bag.

k. The following day, during an exchange of text messages between Mr. Balchand and Mr. Bartholomew, Mr. Balchand asked Mr. Bartholomew if he was bringing his "heckla … on the road". One of the stolen firearms was a Heckler and Koch. Mr. Bartholomew responded "LMAOO don't kill me".

l. Later in the day, Mr. Bartholomew went to Mr. Balchand and Ms. Secord's apartment.

m. Later that evening, the police attended the apartment, where they arrested Brendan Balchand and then applied for a search warrant. Once they obtained the warrant, they searched the apartment and found four of the handguns taken during the break and enter in the couch and in a safe. The Heckler & Koch was amongst the handguns found in the couch. The handguns were not loaded and there was no ammunition found in the apartment.

[12] In light of this evidence, I find that Mr. Bartholomew's participation in the theft of the firearms was as an aider. Mr. Bartholomew was not the instigator of the break and enter, nor did he commit the act of breaking and entering and stealing the firearms. However, he knowingly and willingly assisted in the break and enter when he drove his car to the house, and when he drove away from the house carrying the firearms. He was also in possession of four of the handguns, along with Mr. Balchand and Ms. Secord, when they returned to the apartment that day, and again the next day when the police found the firearms in the apartment.

Possession of proceeds of crime with a value less than $5000

[13] The charge of possession of the proceeds of crime with a value less than $5000 arises from Mr. Bartholomew's possession of a stolen license plate.

[14] On July 17, 2016, Mr. Bartholomew was stopped by the police when he was driving with invalid plates. The police escorted him to his house, and then seized the plates. The next day, Mr. Balchand gave Mr. Bartholomew other plates to put on his car. Mr. Bartholomew testified that he understood that the plates were not registered to his car. On this basis, the jury found Mr. Bartholomew guilty of possession of the proceeds of crime with a value less than $5,000.

Circumstances of the offender

[15] Mr. Bartholomew is 25 years old. At the time of the offence, he was 22 years old.

[16] Up to the time of the commission of the offence, Mr. Bartholomew did not have a criminal record.

[17] Mr. Bartholomew has completed high school, but has no further education.

[18] Mr. Bartholomew's mother is originally from Trinidad, and his father is from Jamaica. His parents separated when he was five years old. He has a younger brother, and six half siblings. His younger brother is autistic.

[19] Mr. Bartholomew's mother lives in Montreal. She suffers from diabetes, and has lost both of her legs. Mr. Bartholomew appears to have a close relationship with his mother. He does not live with her due to her health issues.

[20] Mr. Bartholomew currently lives with his father, stepmother and younger brother in Toronto. His father acted as his surety while Mr. Bartholomew awaited trial. During that time, Mr. Bartholomew worked every weekday with his father, assisting with delivery work.

[21] While awaiting trial, Mr. Bartholomew was charged with failure to appear in relation to one of the dates for his preliminary inquiry. His explanation for the failure to appear is that, when he arrived in Court, he was advised that his father had removed himself as his surety. He became angry, and left the court saying that he would be at his father's house if anyone wanted to find him. He was then arrested at his father's house. He pleaded guilty to the charge, and was sentenced to one day of custody which was credited as part of his pre-sentence custody.

[22] Mr. Bartholomew's father, Orrin Ennis, requested an opportunity to testify at the sentencing hearing. Mr. Ennis told me that Mr. Bartholomew was sorry for the trouble he has caused. Mr. Ennis said that his son had never been in this type of situation before. He said that his son had a difficult family life in his early years. Mr. Bartholomew's mother is disabled and Mr. Ennis got custody of both his sons when Mr. Bartholomew was seven years old. Mr. Ennis said that his son is "soft" but that he does well when he is given "instruction". I understood from this that Mr. Ennis meant that his son may be easily influenced by others, but that he responds positively when supervised. He also said that his son does not have a great academic background. However, he said his son is always willing to improve, and that he always helps him with work and that he has done odd jobs since he was a junior in school. Mr. Ennis said that his son was helpful with his delivery work while he was on bail. He is also dedicated to looking after his autistic brother.

[23] During cross-examination, Mr. Bartholomew's father explained that he had removed himself as a surety for a period of time because Mr. Bartholomew was not following the house rules, and not because he was not complying with his bail conditions.

[24] I also received a pre-sentencing report. The pre-sentencing report indicates that Mr. Bartholomew arrived late for his appointment and that he appeared to misunderstand the purpose of the meeting. The officer who prepared the report also expressed some concerns about Mr. Bartholomew's attitude during the meeting.

[25] Mr. Bartholomew addressed me briefly at the end of the sentencing hearing. He expressed some remorse, stating that he made mistakes and hung out with the wrong people. He apologized to me and stated that he would accept whatever fate awaited him.

Positions of the Crown and defence

[26] The Crown seeks a global sentence of four years in a penitentiary. The Crown also seeks a 10 year weapons prohibition in accordance with section 109 of the Criminal Code, an order for a DNA sample, an order that Mr. Bartholomew have no contact with his co-accused or the complainants while in custody, and a forfeiture order.

[27] The defence suggests that a sentence of two years less a day is appropriate in this case, and that the sentence should be reduced to 1 year to reflect a deduction for pre-trial custody and the conditions of Mr. Bartholomew's house arrest. The defence also suggests that a period of 18 months of probation would be appropriate.

Sentencing principles

[28] As set out in section 719 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives, which include denunciation, general and specific deterrence, and rehabilitation.

[29] The Criminal Code lists a number of principles to guide sentencing judges.

[30] The parity principle is set out in section 718.2(b) of the Criminal Code, and it provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualized sentencing process, sentences imposed for offences of the same type will not always be identical.

[31] The totality principle is addressed by section 718.2(c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender: R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 42.

[32] The restraint principle is reflected in both ss. 718.2(d) and (e). As the Court of Appeal explained in R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at paras. 95-96, the restraint principle is of paramount importance where incarceration is a potential disposition:

95 Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered. Parity, totality, and restraint are also principles which must be engaged when determining the appropriate sentence: Criminal Code, ss. 718.2(b)-(e). The restraint principle is of particular importance where incarceration is a potential disposition. That principle is reflected in ss. 178.2(d) and (e):

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

96 The express inclusion of restraint as a principle of sentencing is one of the most significant features of the 1996 Criminal Code amendments statutizing sentencing principles for the first time. As Professor Manson explains:

Restraint means that prison is the sanction of last resort ... Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction…

[33] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The "gravity of the offence" refers to the seriousness of the offence as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence: at Hamilton, para 90. The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime: Hamilton, para 91.

Aggravating and mitigating circumstances

[34] In determining the appropriate sentence, I must consider aggravating and mitigating factors.

[35] The fact that firearms were involved is a significant aggravating factor. Mr. Bartholomew assisted in the commission of a theft of firearms, by knowingly driving with firearms in his vehicle, and then voluntarily remaining in possession of the firearms. I recognize that there was no ammunition stolen with the firearms and that no ammunition was found at the time the firearms were seized. However, the courts have repeatedly emphasized the public danger posed by firearms and the seriousness of offences involving firearms.

[36] There are a number of mitigating circumstances in this case:

a. Mr. Bartholomew did not have a criminal record at the time he was charged.

b. Mr. Bartholomew was relatively young at the time he committed the offences.

c. There is no evidence that Mr. Bartholomew's participation in the break and enter was part of a pattern of criminal behavior. Rather, it is evident to me that he participated in the theft at Mr. Balchand's request and under his influence.

d. Mr. Bartholomew has close ties to his family. His father acted as his surety, clearly taking the role very seriously. His father also came to court on a number of occasions, and his brother was present on at least one occasion.

e. While Mr. Bartholomew did not express full remorse for his role in the offences, he did state that he was sorry for what he did and expressed regret over his relationship with the people involved.

f. While he was out on bail, Mr. Bartholomew was under house arrest. The conditions of his bail only permitted him to leave the house between 9:00 and 5:00 for the purpose of working or looking for work, or to be out with his surety. Throughout this period, Mr. Bartholomew worked 10 to 12 hours per day, assisting his father with delivery work.

Sentences imposed in other cases

[37] In deciding on the appropriate sentence in this case, in accordance with the parity principle reviewed above, I must consider sentences imposed in similar circumstances.

[38] In accordance with the Court of Appeal's decision in Mann, at para. 20, parity can include consideration of sentences imposed on co-offenders. However, the sentence imposed on a particular offender must nevertheless reflect the circumstances of that offender, including such considerations as the offender's prior record and whether the offender pleaded guilty.

[39] In this case, the sentences imposed on Mr. Bartholomew's co-accused are as follows:

a. Mr. Balchand pled guilty to one count of breaking and entering and stealing a firearm contrary to section 98(1)(b) of the Criminal Code, three counts of possession of a firearm obtained by crime contrary to section 96(1) of the Criminal Code, and one count of possession of a weapon in breach of a probation order. Taking into account the discount for pre-trial custody, Mr. Balchand received the equivalent of a sentence of 48 months. Mr. Balchand has a relatively lengthy and recent criminal record, that includes at least two prior convictions for breaking and entering.

b. Michael Shawaga-Grose pled guilty on February 22, 2018 to breaking and entering and stealing a firearm contrary to section 98(1)(b) of the Criminal Code and to two counts of possession of a firearm without a license contrary to section 92(1) of the Criminal Code. In addition, Mr. Shawaga-Grose pled guilty to one count of perjury in relation to the evidence he gave at Mr. Bartholomew's preliminary inquiry. Mr. Shawaga-Grose received a global sentence of 39 months, although he received 15 months credit for pre-trial custody and was therefore sentenced to two years less a day. Mr. Shawaga-Grose had no prior criminal record.

c. Kaylee Secord pled guilty on July 21, 2017, to one count of breaking and entering and stealing a firearm contrary to section 98(1)(b) of the Criminal Code, and to two counts of possession of a firearm without a license contrary to section 92(1) of the Criminal Code. She received a sentence of 18 months in custody and 18 months of probation. Ms. Secord did not have a prior criminal record.

d. Kristee-Lee Evans pled guilty on April 26, 2018 to one count of breaking and entering and stealing a firearm contrary to section 98(1)(b) of the Criminal Code, and to two counts of possession of a firearm without a license contrary to section 92(1) of the Criminal Code. She received a sentence of 18 months in custody and 18 months of probation. Ms. Evans did not have a prior criminal record.

[40] In terms of sentences generally imposed for the offences at issue, cases establish that specific and general deterrence and denunciation are the primary principles to be applied when dealing with offences involving firearms. For example, in R. v. Abdullahi, 2015 ONSC 4163 (Sup. Ct.), at para. 33, Trafford J. of this Court explained the importance of deterrence and denunciation for such offences as follows:

33 First, it is well-established in Ontario and elsewhere that the sentencing of persons involving the use of firearms should be governed by principles of general and specific deterrence and denunciation, without losing sight of the rehabilitative interests of the offenders, including the principles of proportionality, parity and totality. Most firearms in most circumstances have no social utility about them. That is especially so where, as in this case, there is no aura of justification, excuse or good faith about the use of the firearm, actual, intended or contemplated by the offenders. As Armstrong J.A. said in R. v. Danvers, [2005] O.J. No. 3532 at para. 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.

[41] However, in cases involving youthful first time offenders, the courts have recognized that a first sentence should be as short as possible and focused on the circumstances of the accused rather than general deterrence: R. v. Priest, [1996] O.J. No. 3369 (C.A.), at para. 23. This principle has even been applied in cases involving weapons offences: R. v. Borde, [2003] O.J. No. 354 (C.A.), at para. 36; and R. v. Mohamed, [2008] O.J. No. 5492 (Sup. Ct.), at paras. 77-78. The cases also suggest that a sentencing judge should avoid a penitentiary sentence where appropriate in cases involving youthful first time offenders.

[42] The Crown points out that the offence of breaking and entering and stealing a firearm as set out in section 98(1)(b) of the Criminal Code is a relatively recent offence, having been added to the Code in 2008. The courts in Ontario have not yet adopted a range of sentences for this offence. However, the Crown points to a decision from the Manitoba Court of Appeal in R. v. Burnett, 2017 MBCA 122, in support of the sentence it seeks for Mr. Bartholomew. In Burnett, at para. 13 to 15, the Court discussed the appropriate range as follows:

13 The offence of breaking, entering and stealing a firearm where the place broken into is a dwelling-house is a more aggravated form of break and enter than the historic offence in section 348 of the Code for two reasons. First, it is not uncommon, as is the case here, for such break-ins to be targeted because the victim is known to possess a firearm and firearms are a prized commodity on the black market. Second, the purpose of the crime is to acquire a dangerous item that can be used to facilitate violent crimes. The danger of gun-related crime was well described in R. v. Wilkinson and others, [2009] EWCA Crim 1925 (BAILII) (at para 2):

The gravity of gun crime cannot be exaggerated. Guns kill and maim, terrorise and intimidate. That is why criminals want them: that is why they use them: and that is why they organise their importation and manufacture, supply and distribution. Sentencing courts must address the fact that too many lethal weapons are too readily available: too many are carried: too many are used, always with devastating effect on individual victims and with insidious corrosive impact on the wellbeing of the local community.

14 The illicit acquisition of a firearm and the harm firearms can cause when they are possessed by persons other than licenced gun owners are significant public dangers. Because restricted or prohibited firearms are difficult to obtain in Canada by legal means, there is a significant black market for such weapons and they are highly coveted by criminals for nefarious purposes (see R. v. Nur, 2013 ONCA 677 at para 54, aff'd 2015 SCC 15).

15 This Court has not previously addressed the sentencing range or starting point for the offence of breaking, entering and stealing a firearm where the place in question is a dwelling-house. Because such an offence is firearm-related, denunciation and general deterrence are the primary sentencing objectives. Given our comments about breaking into a dwelling-house generally in Duerksen, in my view, the starting point for the offence of breaking, entering and stealing a "restricted firearm" (section 84(1) of the Code) from a dwelling-house for a mature offender pleading guilty with no record and prior good character would be a sentence of 30 months' imprisonment. In the case of a "prohibited firearm" (section 84(1) of the Code) for the same type of offender, the starting point would be three years' imprisonment. The subsequent use of a stolen firearm in a violent crime, a connection between the break and enter and a criminal organization, or the use of violence during the break and enter are some of the aggravating factors relevant for the Court to consider in imposing sentence.

[43] In that case, the accused was a 23 year old who broke into a house and stole a firearm from a licensed gun owner. The accused pled guilty, was a first time offender, was employed and had family support. The trial judge had imposed an intermittent sentence of 90 days with two years of probation. The Court of Appeal varied the sentence on the basis that it did not reflect the seriousness of the offence and the need for denunciation in the case. However, the Court varied the sentence to 18 months, which is lower than the 30 month to 3 year range discussed by the Court, on the basis of the specific circumstances of the offender, including his youth, guilty plea and the fact that he was a first time offender.

Fit sentence in this case

[44] As reviewed above, deterrence and denunciation are primary objectives when dealing with the theft and possession of firearms.

[45] However, in this case, I am also influenced by the principle of restraint and the prospect of rehabilitation. As in the cases reviewed above, Mr. Bartholomew is a youthful first time offender. While the offences are serious and are the types of offences that place the public at significant risk, this is not a situation in which Mr. Bartholomew's participation in the offences is part of a pattern of criminality. At the time of the offences, he did not have a criminal record and there is no evidence of gang involvement.

[46] In addition, the manner in which Mr. Bartholomew participated in these offences is no more blameworthy than Mr. Evans or Ms. Secord's role in the crimes. Mr. Bartholomew did not organize or initiate the break and enter. He did not break into the house and take the firearms, but rather, at Mr. Balchand's request, he helped by driving his four co-accused to the house and driving them away with the guns in his car.

[47] While Mr. Bartholomew's participation is closer to that of Ms. Evans and Ms. Secord, unlike them, he did not plead guilty. Therefore, he is not entitled to the additional leniency afforded to accused persons who plead guilty.

[48] In the circumstances, I find that a sentence of two years less a day with three years of probation is appropriate. This sentence is proportionate to the sentences imposed on Ms. Evans and Ms. Secord, while taking into consideration that they pled guilty while Mr. Bartholomew did not plead guilty.

[49] This sentence also takes account of Mr. Bartholomew's period of house arrest. As held in R. v. Downes, [2006] O.J. No. 555 (C.A.), at para. 37, time spent on stringent pre-sentence bail conditions is a relevant mitigating factor and there is no formula for determining the amount of credit to be given for time spent under house arrest.

[50] Finally, a sentence of two years less a day ensures that Mr. Bartholomew is not sent to the penitentiary and that he can be supervised following his release while on probation. Given that he is a youthful first offender, the principle of restraint justifies avoiding penitentiary time for Mr. Bartholomew. In addition, as held by Schreck J. in R. v. Elvira, 2018 ONSC 7008, at para. 35, I believe that a shorter sentence in a reformatory with a lengthy period of probation will assist with Mr. Bartholomew’s rehabilitation while serving to protect the public. In this case, having regard to Mr. Ennis' comments about his son's susceptibility to influence and my own observations of Mr. Bartholomew and the evidence at trial, I believe that a lengthy period of supervision while out of custody will be far more beneficial to Mr. Bartholomew and the public than a lengthy period of incarceration.

[51] Accordingly, I impose a global sentence of two years less a day. For the purpose of breaking down the sentence, all charges, with the exception of the charge of possession of the proceeds of crime, are to carry of sentence of two years less a day to be served concurrently. The charge of possession of the proceeds of crime is to carry a sentence of 30 days, also to be served concurrently with all of the other charges.

Conclusion

[52] Mr. Bartholomew spent 117 days in pre-trial custody. He is therefore entitled to credit at a rate of 1.5 for a total of 176 days. This is equivalent to 5 months and 26 days, which is 3 days short of 6 months. I therefore sentence Mr Bartholomew to 18 months in custody.

[53] While in custody, Mr. Bartholomew is to avoid any contact or communication with Brandon Balchand, Michael Shawaga-Grose, Kaylee Secord, Kristee-Lee Evans, Stephen Reynolds and Shanti Reynolds.

[54] Following his release from custody, Mr. Bartholomew is to be placed on probation for a period of three years. In addition to the statutory conditions, while Mr. Bartholomew is on probation, he is to meet the following conditions:

a. He is to report to a probation officer forthwith upon his release from custody and thereafter as directed;

b. He is not to possess any firearms or any weapons as defined in the Criminal Code;

c. He is not to possess any non-medically prescribed restricted substances; and

d. He is to avoid any contact or communication with Brandon Balchand, Michael Shawaga-Grose, Kaylee Secord, Kristee-Lee Evans, Stephen Reynolds and Shanti Reynolds.

[55] I am also making the following ancillary orders:

a. Pursuant to section 109 of the Criminal Code, I order that Mr. Bartholomew is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance prohibited for 10 years; and

b. I order that a DNA sample be given pursuant to section 487.051(3) of the Criminal Code.

[56] Finally, Mr. Bartholomew, I want to tell you once again that the charges for which the jury found you guilty are very serious. Our criminal justice system takes offences involving firearms very seriously, and for good reason. Gun violence is the cause of many senseless deaths and injuries in our city. By participating in the theft of handguns and potentially putting them on the street, you increased the risk of more deaths and injuries. The sentence I have given you is fair, but it is relatively low for crimes of this nature. In making my decision, I was influenced by the fact that you are still quite young, you have no criminal background, you have the support of your family and strong ties to your family, and you have shown a willingness to work by helping your father while you were waiting for your trial. At the end of your sentence, when you are released from custody, I hope you will take the opportunity to avoid any future involvement in criminal activities, that you will be careful in choosing your friends and that you will find a path to a productive life. If you ever find yourself in court on future offences of this kind, you need to understand that you will most likely receive a much more serious sentence.

FAVREAU J. Released: January 9, 2019

Footnote

[1] Mr. Balchand’s evidence at the preliminary inquiry, which was admitted at trial, was that he asked Mr. Bartholomew to drive him to the meeting and that Mr. Bartholomew participated in the meeting. He testified that it was agreed that Mr. Bartholomew would drive to the house and that Mr. Balchand and Mr. Shawaga-Grose would go into the house and take the firearms. He indicated that it was agreed that they would split the firearms. When he testified, Mr. Bartholomew said that he did not meet Mr. Shawaga-Grose that day, but that he had lent his car to Mr. Balchand. Given Mr. Balchand’s general lack of credibility at trial and that his evidence on this point was not necessary to the jury’s verdict, I find that Mr. Bartholomew was not involved in the planning of the break and enter on July 18, 2016.