Court File and Parties

COURT FILE NO.: CR-18-40000164-0000 DATE: 2019-01-14 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – TAYLOR GRIFFITH Applicant

COUNSEL: Tracey Vogel, for the Crown Paul Aubin, for the Applicant

HEARD: December 14, 2018

Reasons for Sentence

A.J. O’Marra, J.

[1] On the dismissal of a Charter application on October 21, 2018 brought by Mr. Griffith to exclude evidence, on the evidence being admitted at trial he was found guilty of possession of a loaded prohibited firearm, trafficking in both cocaine and crack cocaine, failing to comply with a probation order and failing to comply with a firearms prohibition order for life. He is here today to be sentenced.

Background of the Offence

[2] On October 21, 2017 Officers from the Major Crime Unit, 13 Division of the Toronto Police Service were assigned to observe Mr. Griffith in the area of Marlee Avenue and Dufferin Street along Eglinton Avenue West based on confidential informant information he was selling drugs in the area. In the early evening hours, Detective Constable Mignardi observed Mr. Griffith sitting on a bench at the edge of a parkette adjacent to a schoolyard, and observed him conduct a hand-to-hand drug transaction with two males.

[3] On October 24, 2017 the police continued their ongoing surveillance of Mr. Griffith and as a result of earlier observations of the hand-to-hand transactions the police decided to arrest him. He was observed to enter the John Howard Society building on Eglinton Avenue where he met with a social worker Joanne Amis. The police entered the building in an attempt to locate him however, he was not found.

[4] Shortly afterwards he was observed exit the John Howard Society building and enter a laneway from Eglinton Avenue West. He was followed by Officers Mignardi and McCartney who identified themselves as police officers and approached to arrest him. As he was being arrested and handcuffed with some resistance D.C. Mignardi saw a handgun in his waistband and removed it. Later, when the firearm was proved safe, it was found to have a round in the chamber ready to fire and 11 rounds in the magazine. On searching a satchel he had been carrying incidental to the arrest the police located a large quantity of crack cocaine and powder cocaine, with a total weight 34.29 grams, and $440.00 in Canadian currency.

Background of the Offender

[5] The background to Mr. Griffith as provided by counsel is as follows:

• Mr. Griffith was 22 years old at the time of the offences. He was born and raised in Toronto.
• He lived with his parents and siblings for most of his life. His parents divorced when he was 15 years old and he rarely saw his father after his parents separated.
• He believes his father lives somewhere in Toronto, but does not know his address. His father worked in construction as a forklift operator. He believes he was 17 or 18 years old the last time he spoke to his father.
• Mr. Griffith has strong support from his mother, with whom he lived until age 21. His mother has worked as a high school teaching assistant since Mr. Griffith was a child.
• Mr. Griffith has three older siblings, but he has not lived with them in years. He has a brother and sister who are both in their 30s and a second brother in his late 20s. He sees them a few times a year at family functions, but they each have their own lives and he does not see them much due to the age gap. Mr. Griffith’s siblings are all employed and support themselves.
• Since age 21 Mr. Griffith had no fixed address. He has stayed with various friends and family members since that time.
• In 2014 Mr. Griffith completed high school through the Yorkdale Learning Centre and Secondary School. He would like to attend college to study business in the future.
• Mr. Griffith has struggled to find stable employment, although he has worked odd jobs through an employment agency.
• Mr. Griffith has no children. He has a long term girlfriend who remains supportive of him. His mother remains supportive of him as well, although she is disappointed in him.

[6] Mr. Griffith has a criminal record which consists of the following:

• November 28, 2013 Toronto - assault, theft under $5,000.00, 2 counts of possession of a Schedule II substance for which he received a suspended sentence and probation for 15 months and a credit for 5 months pre-sentence custody for the assault, and on the theft and possession of controlled substances he received a concurrent suspended sentence and probation for 15 months and a firearms/weapons prohibition for 15 months.
• July 6, 2015 Toronto – possession of a Schedule II substance, sentence $200.00 fine.
• December 8, 2016 – Count 1: possession for the purpose of trafficking (cocaine) – sentence 1 day jail with 8 months credit for pre-trial custody; Count 2: weapons dangerous, having possession of an inoperable Jennings .22 calibre handgun and Count 3: possession for the purpose of trafficking (cocaine) – 1 month jail consecutive, 12 months’ probation and firearms/weapons prohibition order for life concurrent on counts 2 and 3.

[7] In sentencing submissions, counsel for Mr. Griffith provided a Certificate of Achievement indicating Mr. Griffith has successfully completed the Forgiveness Project Workshop, a program series on anger management, forgiveness, and restorative justice conducted at the Detention Centre where Mr. Griffith has been detained pending this matter. Further, a Letter of Participation dated January 18, 2018 was provided to confirm that Mr. Griffith, while detained had also completed a four week financial literacy program offered through the Toronto Public Library’s Community Librarian Project over December 2017 through January 2018.

[8] Mr. Griffith, when given the opportunity to address the court at the conclusion of the sentencing hearing, provided a lengthy letter in which he spoke of the bad choices he now realizes he has made and the lost opportunities he has missed. He wrote that during his incarceration,

I am still tormented by the decision I made thinking it is acceptable to carry a firearm. For this I would like to state my apology to the courts and to my community of Eglinton. No one should ever feel unsafe or uncomfortable in their community. For my actions if I ever made anyone feel this way I am truly sorry, my intention was never to scare anyone. I just want to show my gratitude, remorse and accept any wrongdoing I may have caused.

Mr. Griffith apologized to his mother, girlfriend and community for his criminal behaviour and said, “Given the opportunity to correct my faults I personally promise to do better.”

[9] Ms. Amis, the post-incarceration housing worker for the John Howard Society who met with Mr. Griffith on October 24, 2017 for approximately 30 minutes while the police were looking for him in the building, stated, when told by the police after his arrest he had been in possession of a loaded gun and drugs that she became very upset. Ms. Amis stated in her statement:

I was disappointed and saddened because I had thought Mr. Griffith was doing well and it was a shock to hear what he had been arrested for. I was also in a state of shock because I realized what the noises I had heard in the hallways were (police looking for the man who had been sitting less than 5 feet away from me) and how the situation could have turned very bad, very quickly. I had never experienced the feeling of being unsafe before while working with John Howard Society of Toronto.

Position of the Parties

[10] The Crown’s position is that the appropriate sentence for Mr. Griffith in these circumstances is a total sentence of 8 years’ incarceration less pretrial custody, in addition to ancillary orders for a DNA sample and s. 109 firearms/weapons prohibition for life. Specifically, the Crown submits to achieve the sentencing objectives of deterrence and denunciation Mr. Griffith should receive 5 years in jail for possession of the loaded prohibited firearm, 2 years jail consecutive for possession for the purpose of trafficking both cocaine and crack cocaine, 1 year consecutive sentence for failing to comply with the prohibition order and 6 months jail concurrent for failing to comply with probation order, which also had a term for weapon prohibition.

[11] The position of counsel for Mr. Griffith is that in the circumstances he should receive a global sentence of 4 years less a period of time in recognition of a serious section 10(b) Charter violation, and credit for presentence custody of more than 21 months on a 1.5 to 1 basis.

Relevant Sentencing Principles

[12] Section 718 of the Criminal Code states that the fundamental purposes of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of a number of objectives.

[13] Those objectives include denunciation of unlawful conduct, deterrence of the offender and others who might be similarly inclined, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[14] Further, the sanction imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The total sentence should not be unduly harsh. The court should also take into consideration that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[15] Our courts have stressed time and time again that sentences imposed for firearm offences must further the sentencing goals of denunciation, deterrence and the protection of the public. In R. v. Danvers (2005), 2005 ONCA 700, 199 CCC 3d 490 (ON CA), murder case involving the use of a firearm Armstrong, J.A. stated at para. 77 the following:

Death by firearms in public places in Toronto plague this city and must be deterred, denounced and stopped. Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. In particular, the use of handguns in public places cries out for lengthy increased periods of parole eligibility. Society must be protected from criminals armed with deadly handguns . . . There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed.

[16] In R. v. Ferrigon (2007) 2007 ONSC 2900, OJ No. 1883 (SCJ) Molloy J. observed:

Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[17] In R. v. Brown, 2010 ONCA 745 at para. 14 the court stated:

Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.

[18] In R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 the Supreme Court noted the comment made by Doherty J.A. in the Court of Appeal that “outlaws who carry a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade is engaged in true criminal conduct and poses a real and immediate danger to the public. Such persons should continue to receive exemplary sentences that emphasize deterrence and denunciation.”

[19] Insofar as Mr. Griffith was found to possess quantities of crack cocaine and cocaine sufficient for the purpose of trafficking, I take into account the observation made by Rosenberg J.A. of the Ontario Court of Appeal in R. v. Woolcock (2002), , O.J. No. 4927 at para. 8:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society. Likewise, possession of crack cocaine for the purpose of trafficking is a serious offence warranting emphasis on the principles of deterrence and denunciation.

[20] Guns and drugs present a particularly dangerous combination because in effect guns are “tools of the trade” of drug traffickers. In R. v. Grant, 2006 ONCA 400, [2006] OJ No. 2179 at para. 82, the Ontario Court of Appeal accepted as reasonable the trial judge’s characterization of the offender having in his possession marijuana and a loaded firearm at the same time as a “deadly type of combination”.

[21] Counsel for Mr. Griffith submitted that there is no evidence that the firearm possessed by Mr. Griffith was used in any prior offence. I note however, in R. v. Nur, supra at para. 136 citing R. v. Felawka, [1993] 4 SCR 199](https://www.canlii.org/en/ca/scc/doc/1993/1993canlii120/1993canlii120.html) in which the court recognized that:

“…[a] firearm is expressly designed to kill or wound” and that “[n]o matter what the intention may be of the person carrying a gun, the firearm itself presents the ultimate threat of death to those in its presence”.

[22] Further, in R. v. Chin 2009 ABCA 226, para. 10, the Alberta Court of Appeal observed that “mere possession of loaded firearms is inherently dangerous” and the reality is that “when such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away”.

Aggravating and Mitigating Factors

[23] In this instance, in my view, the aggravating factors considered in the determination of a fit sentence are:

• Mr. Griffith was in possession of a loaded, ready to fire handgun with 12 rounds and he was in possession of a substantial quantity of cocaine and crack cocaine.
• He had been travelling publicly from place to place with a loaded firearm in which there was a chambered round making the firearm ready to fire.
• He attended inside of the John Howard Society where he met with his housing worker while armed with a loaded firearm and in possession of illegal drugs.
• The total amount of drugs he possessed weighed 34.29 grams (approximately 1.25 ounces). The drugs had a street value of $5,360.00 - $6,700.00. The amount of crack cocaine in his possession alone could have resulted in 220-550 transactions on the street. The quantity of drugs found in Mr. Griffith’s possession indicates he was a mid-level drug trafficker.
• Further, cocaine and crack cocaine are highly addictive drugs and drug traffickers prey on the despair and addiction of users for commercial gain.
• Mr. Griffith has a prior criminal record that includes possession of a weapon dangerous – an inoperable 22 calibre firearm, together with possession of cocaine for the purpose of trafficking. He was on a probation order and a prohibition order at the time.
• He has escalated the severity and dangerousness of his drug dealing activity by carrying a loaded, ready to fire firearm, a “tool of the trade”, committing “a true crime that poses a real and immediate danger to the public.”

[24] With respect to factors to consider in mitigation, Mr. Griffith at the age of 22 is still a youthful adult, the longest period of time he has spent incarcerated in the past has been 9 months. He has a stable relationship with his mother and girlfriend who are supportive of him and he has taken steps toward rehabilitation by going back to school to complete high school prior to his last conviction. While in custody he has taken some of the limited programs offered, the Forgiveness Project and Literacy Program as a means of rehabilitation. Further, as noted in the letter he provided to court, he now has insight into the bad choices he has made, he is remorseful and he accepts the responsibility of his actions.

Charter Reduction Consideration

[25] Counsel for Mr. Griffith submits, where there has been a recognized Charter violation, the Supreme Court of Canada noted in R. v. Nasogaluak, 2010 SCC 6 at paras. 48, 49 and 53 that Charter violations can be properly considered as a mitigating circumstance on sentencing, which can result in a sentence reduction. However, instances alleged to constitute a Charter violation can be considered at sentencing, provided they bear the necessary connection to the sentencing exercise. The circumstance of the breach as a mitigating factor, would have to align with the circumstances of the offence or the offender as required by s. 718.2 of the Code.

[26] In Nasogaluak, the Supreme Court reviewed a number of cases in which courts have reduced the sentence to reflect the prejudice cause to the accused by the incident giving rise to the Charter violation.

[27] In R. v. Munoz 2006 ABQB 901 an offender’s overall sentence was reduced to take into account breaches of his sections 7 and 12 rights by prison guards who had subjected him to acts of physical violence in which the court felt the accused’s treatment was “grossly disproportionate to the punishment that was appropriate”.

[28] Similarly, in R. v. Pigeon 1992, 73 CCC 3d 373 (BCCA) an offender who had fled from the police after committing a break and enter and on arrest was abused when the police grabbed his hair and thrown to the payment and then dragged by the hair which resulted in a number of injuries, had his sentence reduced by 6 months. The Court of Appeal accepted that the trial judge’s findings that the force used by the police was unwarranted and excessive.

[29] However, R. v. Glykis (1995), , 84 OAC 140 the Ontario Court of Appeal that the trial judge should not have compensated for improper police action by reducing the offender’s sentence. In that instance, two accused were apprehended at the Pearson Airport where they admitted to smuggling drugs into the country under their clothing. They were informed of their right to counsel but were denied a right to consult with a lawyer until they had been searched, and as a result their consultation was delayed by approximately two hours. Dubin CJO, writing for the court, while the trial judges’ finding that there was a section 10 Charter breach was upheld, it was concluded that the sentence reduction should only have been afforded a Charter remedy, where the breach had somehow mitigated the seriousness of the offence or if it constituted a form of additional punishment or hardship for the accused.

[30] Similarly, in this instance, I find no additional harm or prejudice caused by the breach, which would act as a mitigating circumstance in sentencing. The circumstance of the finding of the firearm and drugs was not contextually, causally or temporarily connected to the breach of delaying contact with counsel, and as a result does not align with the offences or to the offender, such that it resulted in additional harm or prejudice. (See Application Ruling, 2018 ONSC 6471.)

Sentence Range

[31] Counsel for Mr. Griffith has provided a number of cases for the court to consider which have set out the range of sentences imposed for offenders possessing loaded firearms from 18 months to 5 years, (see R. v. Cadienhead, (2015) 2015 ONSC 3125 OJ No. 3125 18 months for possession of firearm; R. v. James, 2017 ONSC 423, 2 years less a day for firearm offences; R. v. ZLM, 2011 ONSC 3, 3 years for possessing a loaded firearm; R. v. Johnson 2013 ONSC 4217, 3 years for a loaded firearm; R. v. Le, 2014 ONSC 4288, 3 years for possession of a loaded firearm; and R. v. Hector, 2014 ONSC 1970, 5 years for possession of a loaded firearm.)

[32] The case of R. v. ZLM is perhaps most like the case at hand in which the offender was convicted of possessing a loaded firearm held in his waistband and possession of marijuana for the purpose of trafficking and possession of crack cocaine. He had a criminal record for attempt theft, theft, uttering threats, carrying a concealed weapon, failure to comply with recognizance and possession of Schedule II substance, marijuana, as well as obstruct a peace officer. The offender 22 years of age had been a passenger in a motor vehicle in which officers believed a drug transaction had occurred. He was arrested in a shopping mall and found to have in his possession a loaded revolver, ten grams of marijuana and three grams of crack cocaine. At his sentencing hearing he took responsibility for his actions, apologized and expressed a desire to change. He received a sentence of three years imprisonment for possessing the loaded firearm, plus 1 month consecutive for possession of the marijuana for the purpose of trafficking and 1 month concurrent for possession of crack cocaine for the purpose of trafficking. The total sentence was 37 months, less credit for pre-sentence custody, which totalled 37 months, thereby resulting in a sentence of time served and 1 day in jail. The case was decided prior to R. v. Nur.

[33] In R. v. Nur the Supreme Court accepted 3 years, 4 months (40 months) incarceration imposed in the case of a youthful first offender, 19 years of age, who pleaded guilty to one count of possessing a loaded firearm as an appropriate sentence. He was from a supportive law abiding family and he was described as an exceptional student and athlete. The trial judge noted that prior to the enactment of the 3 year mandatory minimum the sentencing range for a first offence under s. 95 of the Code was a term of between 2 years less a day and 3 years imprisonment. The Court of Appeal and Supreme Court determined that the mandatory minimum sentence provision in s. 95(2)(a) of the Code was unconstitutional, however neither interfered with the sentence of 40 months incarceration for a youthful first time offender who pleaded guilty to having committed a “true crime” involving the possession of a loaded firearm.

[34] The only case referred to by defence counsel decided subsequent to R. v. Nur was R. v. James, supra which involved a 25 year old offender with no criminal record who received a sentence of 2 years less a day imprisonment. Although the court referred to R. v. Nur in the ruling no reference was made to what if anything distinguished Mr. James circumstances from Nur.

[35] I accept the sentence imposed in R. v. Nur to represent the low end of the range for an offender involved in the possession of a loaded firearm.

Sentence

[36] The sentences imposed in this instance must meet the objectives of denunciation and deterrence and must be exemplary in order to dissuade those who would not only possess a loaded firearm but also participate in drug trafficking. They must expect to pay dearly for their crimes by the loss of liberty for very long periods of time. In this case, it is clear that the accused had in his possession a firearm as a tool of his criminal activity as an illicit drug trafficker. In the circumstances of this case I conclude that the firearm offence calls for the imposition of a term of imprisonment of 4 years.

[37] With respect to the offences of possession of crack cocaine and possession of powder cocaine for the purpose of trafficking I consider them as an aggravating circumstance of the firearms offence which requires the imposition of a separate consecutive sentence. In the circumstances of this case the accused should receive an additional term of 1 year (12 months) imprisonment to be served consecutively to the firearm sentence.

[38] At the time of the firearm offence, Mr. Griffith was subject to a probation order and a section 110 order prohibiting him from the possession of firearms which as a general rule requires a consecutive sentence for breach of such orders. As noted in R. v. Le, supra at para. 37 “the intentional violation of an unequivocal court order requires some effective additional sanction as offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation”.

[39] In the result, the accused will be sentenced to an additional 1 year (12 months) term of imprisonment for the breach of the firearms prohibition order consecutive to the firearm and drug offence sentences.

[40] The sentence for the breach of the probation order shall be 6 months imprisonment. While the sentence for this offence could have been ordered to be served consecutively, in order to keep the sentence within the appropriate total sentence of 6 years, it shall be served concurrent to all other offences.

[41] In the final result, considering all of the aggravating and mitigating factors noted above, as well as the accused’s expression of remorse and his rehabilitative potential, the accused, shall receive a global sentence of 6 years imprisonment. He shall receive a sentence reduction due to pre-sentence custody credit calculated as 22 months, thereby requiring him to serve a further 4 years and 2 months (50 months) incarceration.

[42] Further, I make the ancillary orders for a firearm prohibition for life pursuant to s. 109 of the Criminal Code and for the collection of a bodily substance sample for DNA analysis pursuant to s. 487.051 of the Criminal Code.

A.J. O’Marra, J.

Released: January 14, 2019