Court File and Parties
COURT FILE NO.: CR–19-50000299 DATE: 2019-07-08 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KIMO DAVID
Counsel: Rohan Robinson, for the Crown Calvin Rosemond, for the Accused
HEARD: June 6, 2019
Reasons for Sentence
P.J. Monahan J.
[1] Kimo David was charged with 10 firearm-related offenses in two separate indictments, arising from incidents that occurred on May 26, 2017. The Crown and defence agreed that he would be tried on the five counts in Indictment No. 1, with the outcome on those counts determining the result in relation to the five counts on Indictment No. 2.
[2] His trial commenced on April 8, 2019 before me with a jury. On April 25, 2019, he was convicted by the jury of the five counts in Indictment No.1, which were: (i) possession of a loaded restricted firearm; (ii) weapons dangerous; (iii) possession of a firearm knowing its possession is unauthorized; (iv) unauthorized possession of restricted firearm in a motor vehicle; and (v) failure to comply with a term of a recognizance requiring him to remain in his residence.
[3] On April 29, 2019, based on the evidence from the trial on Indictment No. 1, I found Mr. David guilty of the five counts in Indictment No. 2. These were: three counts of possession a firearm contrary to three separate prohibition orders; failure to comply with a term of a recognizance prohibiting him from possessing a weapon; and failure to comply with a term of probation prohibiting him from possessing a weapon.
[4] Accordingly, Mr. David is before the Court today for sentencing on a total of 10 charges. For ease of reference, I will refer to the five counts on Indictment No. 1 as counts 1 – 5, and the five counts on Indictment No. 2 as counts 6 – 10.
Background Facts
[5] Based on surveillance of Mr. David, police believed that he was in possession of a loaded firearm. On the evening of May 26, 2017, a surveillance team of six plainclothes officers was instructed to locate and arrest him. Each member of the surveillance team was driving an unmarked police vehicle. The surveillance team followed a Jetta automobile driven by Joel Benjamin, in which Mr. David and a number of others were passengers, to the Crossroads Plaza at Weston Road and Highway 401.
[6] Shortly after 11 PM, the surveillance team converged upon the Jetta, blocking its exit from the Plaza, and attempted to arrest Mr. David. In the course of attempting to evade the police vehicles, Mr. Benjamin collided with a vehicle driven by one of the plainclothes officers, and the Jetta was then effectively boxed in by the other police vehicles.
[7] The vehicle of one of the members of the surveillance team, Officer Erwin Huber, was positioned a few feet behind the Jetta. Upon observing the Jetta being boxed in, Officer Huber got out of his vehicle with a view to apprehending Mr. David. At this point, he observed a black male jumping out of the right front passenger door of the Jetta and throwing a handgun onto the ground, before running away between two other vehicles parked to the south of the Jetta.
[8] The vehicle of a second member of the surveillance team, Officer Richard Ryan, was positioned immediately to the north of the Jetta, facing the driver’s side of the Jetta. Officer Ryan observed a male passenger exiting the front passenger door of the Jetta, and moving his upper arm in what appeared to Officer Ryan to be a throwing motion. Officer Ryan was only able to observe the upper portion of the male passenger’s arm; his view of the male passenger’s lower arm and hand was obscured by the vehicles in front of him.
[9] Officer Huber got back into his vehicle and pursued the fleeing passenger as he ran through the parking lot. Huber caught up to him at the southern end of the Plaza and, with the assistance of another member of the surveillance team, was able to effect an arrest. The fleeing passenger was identified as Kimo David. Other members of the surveillance team subsequently located a handgun on the ground, between the two vehicles that were parked to the south of the Jetta.
Mr. David’s Circumstances
[10] Mr. David was born in Grenada on September 21, 1994. He was 22 years old at the time of these offences, and is 24 years old today.
[11] Mr. David came to Canada at the age of eight. He has lived since arriving in Canada with his family in the Weston Road/Finch Ave. West area of Toronto. He has been involved in a long-term relationship with Stephanie Bailey, with whom he has had a son.
[12] Mr. David has an extensive criminal record, dating back to the time when he was just 16 years old. This includes two prior firearms convictions, the first on September 21, 2012 when he was convicted in Toronto Youth Court of discharging a restricted or prohibited firearm in a reckless manner, and the second on March 22, 2016 when he was convicted of using an imitation firearm during the commission of a robbery.
[13] He also has various convictions for violent crimes, including two counts of assaults with weapons [^1], three counts of uttering threats [^2], and one count of assault causing bodily harm [^3]. He has a total of 20 convictions for breaching court orders, entered between January 20, 2011 and August 29, 2017.
[14] In May 2017, at the time of the commission of the offences before the court, he was subject to three separate firearms prohibition orders, the first having been issued on September 21, 2012 under the Youth Criminal Justice Act (“Prohibition Order No. 1”), the second having been issued on March 22, 2016 under s. 109 of the Criminal Code (“Prohibition Order No. 2”) and the third having been issued on December 13, 2016 under s. 110 of the Criminal Code (“Prohibition Order No. 3”). In May 2017 he was also subject to court-ordered conditions, including that he not possess a weapon, imposed at the time of his release on bail for charges arising from the assault committed in 2015 while he was incarcerated at Maplehurst.
[15] Mr. David has been in presentence custody since he was arrested on May 26, 2017, a total of two years and 43 days. It is common ground that he should receive credit on a 1.5 to 1 basis for this period of presentence custody, in accordance with R. v. Summers, 2014 SCC 26 [^4], and that he is not entitled to any mitigation in his sentence based upon the principles set out in R v. Duncan, 2016 ONCA 754 [^5].
[16] Five letters have been provided to the Court in support of Mr. David, as follows:
a. Ms. Stephanie Bailey, who is the mother of Mr. David’s child, indicates that she has known him for nine years and has been in a relationship with him for five years. Ms. Bailey states Mr. David is known to be a kindhearted and respectable man and a dedicated brother/son. She states that Mr. David always shows empathy and sympathy towards any situation or person and that he’s genuinely kind and caring. She indicates that although he may have had anger issues in the past she knows that this stems from his childhood. She states that she was surprised to hear about this misconduct but that it comes as no surprise that he is ready to accept responsibility for his actions. b. Ms. Novlin Tucker, Stephanie Bailey’s mother, states that she has known Mr. David for six years. She states that she has a great relationship with him and he is a very respectable young man. Ms. Tucker states that once Mr. David found out that he was having a baby he was so happy, and that he can’t wait to just start a family, live life good and do things the right way. She states that Mr. David really was changing his life and that learning about this unfortunate situation was shocking and sad. She believes that he is a young man with a great deal of potential and being away from him any longer will definitely have a huge impact on the family. c. Kenesha David, who is 13 years old and Mr. David’s younger sister, writes that her brother is kind and he has always there for her and her sisters. She states that they miss him and haven’t seen him in over two years. When she doesn’t see or hear from her brother she gets scared or nervous. When he calls and she gets to talk to him she is so happy and having conversations with her brother is the best time she has with him. She says that Mr. David has a lot of people that can help him and miss him so much and they are all hoping and praying they will see him and hug him soon. d. Mr. Michael Hinds, who is a program manager for a nonprofit organization supporting youth in the greater Toronto area, states that he has known Mr. David for over eight years. He met Mr. David for the first time while he was housed in the Roy McMurtry Youth Centre and Mr. Hinds has continued to work and support him following his release from the Youth Centre. At that time he found Mr. David to be a young man who is caring, compassionate and someone who wanted to live a normal life that would allow him to have the ability to support his loved ones. Mr. Hinds indicates that Mr. David has told him he is aware that his past choices were a mistake. Mr. Hinds believes that Mr. David would never repeat these mistakes again as he is now a father and is missing out on the development of his son due to his incarceration. It is Mr. Hinds’ hope and belief that Mr. David has learned from his choices and from the consequences that have impacted his life and those committed to his success. e. Zya Brown, who is the director of a nonprofit organization supporting youth who are incarcerated for gun or gang-related charges, states that she has known Mr. David for 10 years. She met him when he was released from the Roy McMurtry Youth Centre. As she worked with him, she found that spirituality became a therapeutic coping strategy to his unresolved grief and trauma. Over the past few years she has continued to communicate with Mr. David via telephone calls. She believes that over the past few years there has been a tremendous growth in him as he has done a lot of introspection regarding his life and the choices that he has made. Mr. David has expressed a deeper therapeutic relationship with God than when he was younger. Mr. David has also expressed a desire to make changes necessary in order to be a good father to his son.
[17] At the conclusion of the sentencing hearing, Mr. David made a statement to the Court in which he indicated that he had grown up in a neighbourhood with fatherless kids and without any role models. He had just followed others in the neighbourhood rather than listening to his mother. These influences had caused him to end up in his current situation. He asked the court to permit him to be able to raise his son and change his life.
[18] Mr. David also stated that although he was found guilty, those weren’t the facts of the situation but just how the cards were dealt at trial. He stated that if he had said the officers were lying no one would’ve believed him, but if they said he is lying they are taken to be right.
Applicable Sentencing Principles
[19] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Parliament has mandated that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. Trial judges are required to impose a just sanction that has one or more of the following six objectives:
a. to denounce unlawful conduct; b. to deter the offender and others from committing offences; c. to separate offenders from society, where necessary; d. to assist in the rehabilitation of offenders; e. to provide reparations for harm done to victims or to the community; and f. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[20] A fundamental principle of sentencing is proportionality, namely, that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Further, a court that imposes a sentence shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances; the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and the principle that courts should exercise restraint in imposing imprisonment.
[21] The overarching duty of the sentencing judge is to determine a “just and appropriate” sentence; this is necessarily a highly individualized exercise, tailored to the gravity of the offence and the moral blameworthiness of the offender. [^6]
Positions of the Parties
[22] The Crown’s position is that Mr. David should be sentenced to a global sentence of 12 years and six months, less credit for presentence custody.
[23] The Crown argues that a global sentence of eight years is appropriate for the five offences in Indictment No. 1, the most serious of which is possession of a loaded prohibited firearm contrary to s. 95 (1). The Crown further argues that there should be a sentence of four years and six months for the offences in Indictment No. 2, consecutive to those for Indictment No. 1, consisting of the following: three consecutive sentences of one year each for the violations of the three weapons prohibition orders; a further one year consecutive sentence for the failure to comply with the term of a recognizance prohibiting him from possessing a weapon; and a consecutive sentence of six months for failure to comply with a term of probation prohibiting him from possessing a weapon.
[24] The Crown argues that there are a number of aggravating factors which justify this significant period of incarceration. These include the following:
a. Mr. David possessed a loaded firearm in public and was taking it to a party, which could have resulted in serious injury; b. Mr. David indicated a willingness to provide the loaded firearm to a girlfriend at the party in case she needed it, which increased the danger associated with the firearm; c. Mr. David has an extensive criminal record including offences of violence or threats of violence, and 20 convictions for breaching court orders; d. this is Mr. David’s third firearm-related conviction; e. following his arrest, Mr. David spoke with various associates about ways of putting pressure on Joel Benjamin (the driver of the Jetta) to take responsibility for having possessed the firearm; he also discussed obtaining false medical documentation that would have allowed him to claim that he was not in breach of the terms of his recognizance. [^7]
[25] The Crown acknowledges that one mitigating consideration is that Mr. David is still relatively youthful, being 24 years old now and 22 years old at the time of the offences before the court. However the Crown argues that there are no other significant mitigating factors. In particular, there was no guilty plea and no streamlining of the trial. Further, Mr. David failed to take responsibility or express remorse for these offences, calling into question his prospects for rehabilitation. These are properly considered as the absence of mitigating considerations rather than as aggravating factors.
[26] Counsel for Mr. David argued that a global sentence of three years, less credit for presentence custody, would be appropriate. Counsel argued that there were a number of mitigating factors justifying this sentence:
a. Mr. David is still relatively youthful, being 24 years old; b. Mr. David’s first firearms conviction dates back to when he was a young offender. Counsel argues that at this stage his brain was still developing and others in his neighbourhood were taking advantage of him; c. Mr. David’s second firearms conviction was for the use of an imitation firearm in connection with a robbery, rather than an actual firearm; d. Mr. David has good prospects for rehabilitation and he wants to turn his life around, particularly since he became a father; e. Mr. David’s longest prior sentence was 15 ½ months. In accordance with the “jump principle”, a sentence in the range of three years would be appropriate.
Analysis: Aggravating and Mitigating Factors
[27] It is settled law that sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public. These goals reflect the dangers posed by loaded handguns, particularly in the City of Toronto. [^8] Moreover, the importance of these goals of denunciation and deterrence has not been diminished by the fact that in R. v. Nur, 2015 SCC 15 [^9], the Supreme Court of Canada found mandatory minimum sentences to be unconstitutional in certain cases of gun possession. Nur affirms that offenders convicted of “truly criminal conduct” in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation. [^10]
[28] As Code J. noted in R. v. Graham, 2018 ONSC 6817, there is now considerable guidance in the case law since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence for offences contrary to s. 95 (1). After reviewing the relevant case law, Code J. concludes that, subject to exceptional or unusual circumstances, an appropriate total range of 6 to 9 years is appropriate in cases involving s. 95 (1) recidivists who breach s. 109 orders. A similar conclusion was reached recently in [R. v. Tiaven Brown, Ontario Superior Court File CR/18/50000462, released April 23, 2019] [^11], where Kelly J. imposed a global sentence of seven years for a s. 95 recidivist who breached s. 109 weapons prohibitions. Kelly J found that, but for certain mitigating circumstances [^12], as well as the principle of totality, she would have had no hesitation in imposing a sentence of nine years.
[29] Counsel for Mr. David relied on the recent decision of A. J. O’Marra J. in R. v. Griffith, 2019 ONSC 358 [^13], where a sentence of 4 years was imposed for possession of a loaded prohibited firearm and breach of a firearms prohibition order. However, it is apparent from O’Marra J.s reasons that he was sentencing Mr. Griffith as a first- time offender, even though the accused had a prior conviction for weapons dangerous. This is evident from the case law relied upon by O’Marra J., which involved first-time offenders, as well as O’Marra J.’s conclusion that the appropriate sentence range for offenders possessing a loaded firearm was 3 to 5 years. [^14] The Court of Appeal has held that 3 to 5 years is an appropriate range for a first s. 95 offence where the use and possession of a firearm is associated with criminal activity, such as drug trafficking. [^15]
[30] In my view, there are a number of significant aggravating considerations which indicate that the appropriate sentence in this case should be at the upper end of the 6 to 9 year range applicable to repeat firearms offenders convicted under s. 95 (1).
[31] The most significant such aggravating consideration is Mr. David’s criminal record, considered as a whole.
[32] First, Mr. David’s prior firearms convictions involved serious and deliberate conduct posing a significant threat to public safety. The first such conviction, in September 2012, involved discharging a firearm in a TTC subway station in connection with a robbery. Counsel for Mr. David argued that this should not be treated as a prior firearms offence since it was committed while Mr. David was a youth. However Parliament has expressly dealt with this issue in the Youth Criminal Justice Act [^16], and provided that, in the circumstances of this case, the prior conviction should be treated as an adult conviction.
[33] The second prior firearms conviction in March 2016 involved a robbery of an individual who was in his car with his 22-month-old son. Mr. David and an associate boxed in the victim’s car and then got into the victim’s car, with each of them carrying what appeared to be firearms. Mr. David’s associate picked up and held the 22-month-old son while holding his firearm against the neck of the victim. The victim was then robbed. The Crown acknowledged that it was not in a position to prove beyond a reasonable doubt that the firearms were real and accepted for purposes of a guilty plea that they were imitation firearms.
[34] Apart from these 2 firearm-related offences, Mr. David has amassed over 40 criminal convictions, on a fairly continuous basis, between 2011 and the present day. As noted above, many of these offences involved crimes of violence. One recent example involves a 2015 assault by Mr. David upon another inmate at Maplehurst, with whom Mr. David was sharing a cell. After Mr. David appropriated his cellmate’s food, resulting in a dispute, David assaulted the cellmate with his fists, punching him repeatedly. When the cellmate fell to the floor, hitting his head on the heavy metal door to the cell, Mr. David stomped on the cellmate’s body and face with his foot. The victim suffered cuts to his mouth requiring stitches, fractured ribs, a sore knee, and a stiff neck which required him to wear a neck brace for some time.
[35] A further aggravating consideration is the nature of the offence in this case. Mr. David took a loaded restricted firearm into a public place, with the intention of taking it to a party. When his girlfriend expressed reluctance to go with him to the party because she tends to get into fights, Mr. David told her that he would give her his gun to hold. This was in an effort to convince her to attend the party. This created a significant risk, not only for those at the party, but also for other members of the public who might be nearby. This distinguishes the case from the least serious forms of the s. 95 offence that are in the nature of regulatory or licensing infractions. It also distinguishes it from less serious forms of criminal possessory offences, such as where a loaded handgun is hidden inside a residence and not carried around in public. [^17]
[36] An additional aggravating consideration is Mr. David’s conduct in the days following his arrest. He suggested to a number of associates that they should exert pressure on Joel Benjamin to “hug the charges”, namely, to falsely claim that Benjamin rather than Mr. David had been in possession of the firearm on the evening in question. Mr. David also proposed that they obtain fraudulent medical evidence in order to claim that he had not been in breach of the terms of his recognizance. [^7] This suggests a disregard for the criminal court processes, which is reinforced by the fact that Mr. David has 20 convictions for failure to obey court orders over the past 8 years.
[37] The only mitigating consideration is Mr. David’s relative youth, at 24 years old. Beyond that, Mr. David has failed to accept responsibility or express any remorse for his conduct. In fact, at the sentencing hearing he claimed that the police officers had been lying when they testified that they had observed him throwing the firearm away as the ran from the Jetta automobile. Mr. David testified at trial and claimed that he had not been in possession of the firearm on the evening in question. Clearly the jury did not believe his testimony.
[38] While Mr. David’s failure to take responsibility or express remorse is not an aggravating factor, it does suggest that he has very limited potential for rehabilitation. This conclusion is reinforced by the fact that since his arrest in May 2017, Mr. David has been subject to seven separate misconduct violations while incarcerated, mainly involving wilfully disobeying lawful orders of a correctional officer, or physical altercations with other inmates.
[39] I also note that neither Mr. David nor any of the letters of support filed with the court explained how Mr. David had any plan that would allow him to turn his life around in the future. This distinguishes this case from [R. v. Tiaven Brown, Ontario Superior Court File CR/18/50000462, released April 23, 2019] [^11], where Kelly J. specifically relied upon the fact that Mr. Brown had a plan for his release, thus giving some hope for rehabilitation.
The “Jump Principle”
[40] I further find that the so-called “jump principle”– namely, that sentences for the same offender for similar offences should get gradually more severe and not jump to a much more severe sentence – has no application in the circumstances of this case. This principle is not explicitly recognized in the Criminal Code. Moreover, it has generally been applied in less serious cases, as well as where rehabilitation is a significant sentencing factor. This reflects a desire not to discourage any effort that an offender may be making to rehabilitate himself. [^18] Given my findings in relation to Mr. David’s prospects for rehabilitation, and the various aggravating considerations described above, I do not believe that it would be appropriate to rely upon the lesser prior sentences he has received in order to take his sentence below the range for repeat firearms offenders convicted under s. 95 (1).
Consecutive Versus Concurrent Sentences
[41] A final issue is whether the sentences to be imposed for these various offences should be concurrent or consecutive to each other.
[42] Where a number of offences arise out of the same event or series of events, sentences for those offences should generally be concurrent, in accordance with s. 718.3 (4) (b)(i) of the Criminal Code. The first four offences in Indictment No.1 all arise out of Mr. David’s possession of a firearm on May 26, 2017 and should be concurrent to each other. In addition, the Crown concedes that in light of the conviction on count 1 in Indictment No. 1 (possession of a loaded restricted firearm), conviction for count no. 3 in that Indictment (possession of a firearm knowing its possession is unauthorized) is barred on the basis of R. v. Kienapple [^19]. The Crown further concedes that the sentence for the final count in Indictment No.1, failure to comply with the term of a recognizance requiring Mr. David to remain at his residence, should also be concurrent to the sentences for the other counts in this Indictment.
[43] However the Crown takes the position that the sentences for counts 6 – 10 in Indictment No.2 should be consecutive to those imposed in respect of Indictment No.1, as well as consecutive to each other. The Crown relies upon R. v. Chambers, 2013 ONCA 680 [^20], where the Court of Appeal upheld the imposition of one year jail terms, consecutive to the main term of imprisonment and to each other, for breaches of two firearms prohibition orders. The sentencing judge, Kelly J., reasoned that the sentences for the breach of these prohibition orders should be consecutive in order to reflect the commission of two separate and distinct offences:
I do not accept that the sentences for possessing the firearm in breach of two prohibition orders should be concurrent. There were two separate orders given on two separate occasions and give rise to two separate offences. Accordingly I am sentencing Mr. Chambers to one year for each of those offences to be served consecutively. [^21]
[44] In upholding this sentence, the Court of Appeal noted that the prohibition orders were imposed at different times, separated by a period of approximately four years, and in respect of different firearms offences. Thus each prohibition order breach was a separate and distinct offence. The fact that the purpose of the prohibition orders was the same, to prevent the accused’s possession of firearms, did not detract from the fact that the breaches constitute separate offences. [^22]
[45] In this case, the weapons prohibition orders were imposed on three separate occasions (i.e., Prohibition Order Number 1 on September 21, 2012, Prohibition Order No. 2 on March 22, 2016, and Prohibition Order No. 3 on December 13, 2016) in relation to three separate criminal prosecutions. Similarly, the recognizance prohibiting Mr. David from possessing a firearm was entered into on March 6, 2017 in connection with a bail order made on that date. The breaches of each of these prohibition orders was a separate and distinct offence. Given the particular circumstances of this case, including the fact that Mr. David has consistently displayed an utter disregard for court orders, I would exercise my discretion to impose sentences for each of these four breaches in counts 6 – 9 that are consecutive to the sentences imposed under Indictment No.1, and consecutive to each other.
[46] In contrast, the probation order prohibiting Mr. David from possessing a weapon was made on March 22, 2016, and was ancillary to the convictions entered on that date as well as to Prohibition Order No. 2. I therefore find that it is appropriate that the sentence for count 10, breach of the weapons prohibition in the probation order, be served concurrently to the sentence for count 1 in Indictment No. 1.
Disposition
[47] Taking into account these aggravating and mitigating considerations, I find that a fit sentence for Mr. David is at the upper and of the 6 to 9 year range for repeat offenders convicted under s. 95 (1). I sentence Mr. David to a global sentence of 8 years, subject to reduction for pre-sentence custody on a 1.5 to 1 basis.
[48] The sentence shall be recorded as follows:
Indictment No. 1:
| Count | Offence | Sentence |
|---|---|---|
| 1 | Possession of a Loaded Restricted Firearm – s. 95(1) C.C. | 6 years |
| 2 | Weapons Dangerous – s. 88(1) C.C. | 4 years concurrent |
| 3 | Possession of Firearm Knowing its Possession is Unauthorized – s. 92(1) C.C. | Kienapple’d |
| 4 | Unauthorized Possession of Restricted Firearm in a Motor Vehicle – s. 94(1) C.C. | 4 years concurrent |
| 5 | Fail to Comply with Recognizance – s. 145(3) C.C. | 6 months concurrent |
Indictment No. 2:
| Count | Offence | Sentence |
|---|---|---|
| 6 | Possession of Firearm Contrary to Prohibition Order #1 – s. 117.01(1) C.C. | 6 months consecutive |
| 7 | Possession of Firearm Contrary to Prohibition Order #2 – s. 117.01(1) C.C. | 6 months consecutive |
| 8 | Possession of Firearm Contrary to Prohibition Order #3 – s. 117.01(1) C.C. | 6 months consecutive |
| 9 | Fail to Comply with Recognizance – s. 145(3) C.C. | 6 months consecutive |
| 10 | Fail to Comply with Probation – s. 733.1(1) C.C. | 6 months concurrent to sentence for count 1 in Indictment No. 1 |
TOTAL: 8 years less credit for pre-sentence custody
[49] Mr. David has served a total of two years and 43 days in presentence custody, resulting in a total credit of three years, 86 days. This credit shall first be applied in relation to the four consecutive 6-month sentences imposed for counts 6-9 in Indictment No. 2. This accounts for 2 years of the credit for presentence custody. The remaining 1 year and 86 days credit for presentence custody will be applied to Count 1 in Indictment No. 1. This results in a sentence of four years and 279 days remaining to be served for Count 1 in Indictment No. 1, with the other sentences, all of which are of a shorter length, running concurrently.
P. J. Monahan J.
Released: July 8, 2019
Footnotes
[^1]: The first of these convictions was on January 20, 2011 and the second was on July 27, 2011. Mr. David was 16 years old at the time. [^2]: The first of these uttering threats convictions was on July 27, 2011 and the second was on July 2, 2013, both in Youth Court. The third conviction for uttering threats was entered on July 24, 2014. [^3]: This conviction was entered on July 29, 2017 in connection with an assault on another inmate at the Maplehurst Correctional Centre in Milton Ontario, while Mr. David was incarcerated at the institution. [^4]: See R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575. [^5]: See R. v. Duncan, 2016 ONCA 754. [^6]: R. v. M. (C.A.), [1996] 1 SCR 500, at paragraph 81. [^7]: These discussions occurred in intercepted telephone communications on May 27 and May 30, 2017. The communications were intercepted by police in accordance with previous judicial authorizations. [^8]: See R. v. Brown, 2010 ONCA 745, at paragraph 14; R. v. Graham, 2018 ONSC 6817, at paragraph 36. [^9]: R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 at paragraph 105. [^10]: R. v. Slack, 2015 ONCA 94 at paragraph 23; R. v. Ellis, 2016 ONCA 598 at paragraph 78. [^11]: [R. v. Tiaven Brown, Ontario Superior Court File CR/18/50000462, released April 23, 2019]. [^12]: These mitigating factors included the fact that Mr. Brown had pleaded guilty, expressed remorse and accepted responsibility for his offences, and had a concrete plan for his release, thus increasing his prospects for rehabilitation. [^13]: 2019 ONSC 358. [^14]: See, in particular, O'Marra J.'s analysis at paragraphs 31 to 35. [^15]: See R. v. Marshall, 2015 ONCA 692; R. v. Graham, supra, at paragraph 38. [^16]: See Youth Criminal Justice Act, S.C. 2002, c.1, ss. 119(2) & (9). [^17]: See R. v. Hector, 2014 ONSC 1970, where 6 years was imposed on a s. 95 recidivist in these less serious circumstances. [^18]: See R. v. Muyser, 2009 ABCA 116 (Alta.C.A.), at paragraphs 8 to 9; R. v. Willier, 2005 BCCA 404 (B.C. C.A.), at paragraph 30. [^19]: R. v. Kienapple, [1975] 1 S.C.R. 729. [^20]: 2013 ONCA 680. [^21]: See R. v. Chambers, 2012 ONSC 817, at paragraph 37. [^22]: See also R. v. Johnson, 2013 ONCA 177, where the Court of Appeal upheld sentences of 6 months’ imprisonment for firearms prohibition offences, to be served consecutively to a firearm possession offence and to each other. Similarly in R. v. Camara, 2019 ONSC 115, the sentencing judge imposed sentences of six months for firearms prohibition offences, to be served consecutively to a firearm possession offence and to each other.