COURT FILE NO.: CR-18-4227

DELIVERED ORALLY AND MADE AN EXHIBIT: August 20, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DYLAN LESLIE-JOHN TRAVIS

Ilana Mizel, for the Crown

Maria V. Carroccia, for the Defence

HEARD: June 21, 2019

REASONS FOR SENTENCE

Howard J.

Overview

[1] Mr. Travis was charged in a six-count indictment with various weapons-related offences, including unauthorized possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code,[^1] and possession of a weapon dangerous to public peace, as well as one count of possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.[^2]

[2] The Crown subsequently withdrew the charges under the CDSA at the outset of the hearing before me.

[3] The charges arose out of events that occurred in the early morning hours of New Year’s Day, January 1, 2017. Following a foot-chase, Mr. Travis was arrested by officers of the Windsor Police Services (“WPS”), who found in his possession a fully-loaded Smith & Wesson .38 caliber revolver.

[4] Mr. Travis brought an application for an order finding that his rights guaranteed under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms[^3] had been violated and for an order pursuant to s. 24(2) of the Charter excluding from admission into evidence at trial the Smith & Wesson revolver and all evidence obtained by the police as a result of the alleged unlawful detention, arrest, and unreasonable search of Mr. Travis.

[5] On April 9, 2019, following a two-day hearing of the voir dire, during which I heard evidence from three police officer witnesses, with the defence calling no evidence on the voir dire, I found that the police had reasonable and probable grounds to arrest Mr. Travis and that the search incident to arrest of Mr. Travis was conducted in a reasonable manner. Accordingly, in the circumstances, I found that there had been no breach of the rights of Mr. Travis under either ss. 8 or 9 of the Charter and concluded that the s. 24(2) application to exclude the revolver and other evidence seized by the police must be dismissed.[^4]

[6] As counsel had agreed that the ruling on the Charter application was dispositive of the issues at trial, following delivery of my reasons dismissing the Charter application, the defence called no further evidence at trial, and I then found Mr. Travis guilty on each of count nos. 1 through 5 in the indictment.

[7] In particular, I found Mr. Travis guilty of:

a. unauthorized possession of a loaded prohibited firearm, contrary to s. 95(1) of the Code,

b. unlicensed possession of a prohibited firearm, contrary to s. 91(1),

c. unauthorized possession of prohibited ammunition, contrary to s. 86(2),

d. possession of a weapon dangerous to public peace, contrary to s. 88(1), and

e. unauthorized carrying of a concealed weapon, contrary to s. 90(1).

[8] Mr. Travis is now before me for sentencing, the sentencing hearing having been held on June 21, 2019.

[9] I note that counsel at the sentencing hearing advised that they were in agreement that, by reason of the Kienapple principle,[^5] the sentences on counts 2, 3, and 4 in the indictment ought to be stayed. I accept that submission, given especially that all of the offences currently before the court arise out Mr. Travis’s possession of a single handgun on one morning.

Factual Background

Circumstances of the Offence

[10] In the early morning hours of Sunday, January 1, 2017, WPS officers were investigating a domestic assault incident. Two WPS officers were dispatched to speak with one Daymien Alexander Kennedy, who was the subject of the investigation.

[11] The officers located Mr. Kennedy at a bank on Walker Road in Windsor and spoke with him regarding the allegations of domestic assault. Mr. Kennedy was wearing a black or dark hooded jacket and dark jeans when the officers spoke with him. The hood was pulled up over his head, covering portions of his face.

[12] As the officers were speaking with Mr. Kennedy, they were advised by the WPS investigating officer that they had no grounds to arrest Mr. Kennedy at that point. The officers then released Mr. Kennedy. However, minutes later, the officers were subsequently advised by the investigating officer that, other officers having spoken with the complainant, the police then had grounds to arrest Mr. Kennedy for assault.

[13] The two officers ultimately resumed their search for Mr. Kennedy, and information led them to the vicinity of the 2600 block of Lauzon Road. It was about 4:58 a.m. that same Sunday morning when their cruiser came to a stop at a red traffic light at the intersection of Lauzon with Tecumseh Road East, and looking to their right, the officers noticed a man who resembled Mr. Kennedy standing alone at a Burger King restaurant, located on the southeast corner of Lauzon and Tecumseh. The restaurant was closed at that time in the morning.

[14] Both officers testified that the man at the Burger King was wearing a black or dark hoodie, with the hood pulled up over his head, and dark jeans – similar to the appearance of Mr. Kennedy that they had observed a couple of hours earlier. Further, both officers observed that the man at the Burger King was the same size and stature as Mr. Kennedy. Neither one of them could observe the face of the man standing at the Burger King because he had his hood pulled up over his head.

[15] The officers decided to approach the hooded figure who, they thought, was Mr. Kennedy; so they turned the cruiser into the parking lot of the Burger King. However, as soon as the cruiser pulled into the parking lot and the man saw the police, the man immediately started to run around the side of the Burger King building. One of the police constables got out of the cruiser and yelled, “Windsor Police – Stop!” However, the man did not comply and continued to run away from the police. Both officers then gave chase on foot.

[16] With the assistance of other attending officers, the fleeing man was ultimately apprehended and taken to the ground. Lying face down on the ground, the man resisted the officers’ attempts to handcuff him by keeping his right hand underneath his body. However, when the police were finally able to handcuff the man and they got him upright, the officers realized not only that the man was not Mr. Kennedy, the person they were looking to arrest for the domestic assault, but also that the apprehended man, being Mr. Travis, had in his possession a fully-loaded Smith & Wesson .38 caliber revolver. The police then arrested Mr. Travis and conducted a search incidental to arrest.

[17] The testimony of the police officers was that there was little vehicular or pedestrian traffic at that time of the morning, and there was no other third party or member of the public involved in the incident.

[18] At trial, Crown and defence counsel agreed that, as per exhibit no. 1, the items seized by the police incident to the arrest of Mr. Travis were as follows:

a. a loaded Smith & Wesson five-shot, .38 caliber revolver (serial no. J744844), with five .38 caliber ammunition rounds loaded in the firearm;

b. a quantity of money comprised of $60 in U.S. currency and $580 in Canadian currency in various denominations; and

c. one clear plastic baggie containing six grams of cannabis marijuana.

Circumstances of the Offender

[19] A pre-sentence report was prepared on June 12, 2019, and marked as exhibit no. 1 on the sentencing hearing.

[20] Mr. Travis was born on February 14, 1990, and is currently 29 years of age. At the time of the offence, he was 26 years old. For the ten months prior to the sentencing hearing, Mr. Travis was employed as a general labourer, working part-time for a local sub-contractor.

[21] Mr. Travis has been involved in a stable relationship with the same woman for the last four-and-a-half years, and they have an 18-month-old daughter together. His partner advises that the relationship is a positive one, void of any domestic violence issues. She describes Mr. Travis as a “supportive partner and attentive father,” who shares “a particularly close bond with his daughter and elects to spend all of his spare time caring for her.”[^6]

[22] As reflected in the pre-sentence report, Mr. Travis enjoyed the support of a stable and loving family during his upbringing. He is the younger of two children born to his parents, who have been married for over forty years. The home environment during his upbringing was free of domestic violence, mental health issues, and alcohol or substance abuse. Mr. Gordon Travis, the offender’s father, confirmed that his son shared closed bonds with his immediate family during his formative years and currently shares positive relationships with his immediate and extended family. I note also that Mr. Travis Sr. was present at the sentencing hearing and throughout the earlier court proceedings.

[23] Mr. Travis successfully obtained his grade 12 graduation diploma and has had a favourable employment history. He is described as a hard worker whose employment history “presents as fruitful but sporadic due to the nature of utilizing local temporary placement agencies in the past.”[^7] Mr. Travis’s current employer describes his work ethic in positive terms. Mr. Travis has arranged for further employment at a local restaurant/bakery once his matter before the courts is resolved, which the owner of the establishment has confirmed.

[24] The pre-sentence report confirms that Mr. Travis has no criminal record.

[25] The report also indicates that Mr. Travis presented as polite and cooperative during the interview for the preparation of the report and appeared to accept responsibility for his actions that led to the offences currently before the court. Significantly, the pre-sentence report indicates that Mr. Travis expressed regret and remorse regarding his offending behaviour, the motivation for which was described in the pre-sentence report in the following terms:

[Mr. Travis] expresses remorse and regret regarding his offending behaviour and voices frustration with his actions. When probed regarding the motivation behind his offending behaviour, [Mr. Travis] attributes having the firearm on his person for protection purposes as he reports having been ‘jumped’ on two previous occasions in the community and highlights that one of those incidents involved a knife that resulted in [Mr. Travis] incurring an injury by way of laceration to the back of his neck.[^8]

[26] Mr. Travis also acknowledged being under the influence of alcohol at the time of his offence, as he had been celebrating New Year’s Eve on the night in question. While the pre-sentence report indicates that Mr. Travis engages in recreational alcohol and cannabis use, and despite alcohol apparently being a contributing factor in the commission of the offences currently before the court, the report concludes that there is no indication that Mr. Travis’s recreational use is problematic, a conclusion said to be confirmed by the collateral contacts.

[27] Accordingly, the pre-sentence report concludes that, “[o]n all accounts, [Mr. Travis] presents as pro-social which was confirmed via collateral contacts.”[^9]

[28] At the conclusion of the sentencing hearing on June 21st, the court provided Mr. Travis with an opportunity to make a statement to the court to speak to the question of sentence, as contemplated by s. 726 of the Code. In his statement to the court, Mr. Travis expressed his remorse and apologized to the court. He said he recognized what he did, acknowledged that he should never have “went about protecting [himself] that way,” and stated that he “never planned on using” the gun. Mr. Travis explained that this was all before his daughter was born, and he was making some bad decisions before his daughter was born.

Legal Parameters

[29] At the time of the offence, the provisions of s. 95(2) (a) of the Criminal Code relevant to count no. 1 in the indictment provide that everyone convicted of unauthorized possession of a loaded prohibited firearm is liable to imprisonment for a term not exceeding 10 years.[^10]

[30] At the time of the offence, the provisions of s. 90(2)(a) of the Code relevant to count no. 5 provide that everyone convicted of unauthorized carrying of a concealed weapon is liable to imprisonment for a term not exceeding five years.

Positions of Crown and Defence

[31] I have carefully considered the submissions of counsel for both parties. On count no. 1 for the conviction for possession of the loaded prohibited firearm, Ms. Mizel submitted on behalf of the Crown that an appropriate sentence in the circumstances of the instant case would be imprisonment for a term of 36 to 42 months, that is, three to three-and-a-half years.

[32] Ms. Carroccia submitted on behalf of Mr. Travis that, given the very positive pre-sentence report, as well as the absence of other factual circumstances that distinguish this case from other decisions involving similar offences, the objectives of the relevant principles of sentencing would be achieved if this court were to impose a sentence in the range of two years. More particularly, given that Mr. Travis had spent five days in jail prior to his release on bail in January 2017, allowing for an eight-day enhanced credit, Ms. Carroccia submitted that an appropriate sentence here would be two years less a day.

[33] As well, Ms. Mizel submitted that an appropriate sentence on count no. 5 for the unauthorized carrying of a concealed weapon would be 18 months, to be imposed concurrently with the sentence on count no. 1. Defence counsel did not specifically oppose this submission.

[34] I have considered the submissions of counsel for both the Crown and the defence, as well as the cases relied upon by both counsel, and their submissions on each other’s authorities. While a sentencing judge must respect the parity principle embodied in s. 718.2(b) of the Code and acknowledge that similar cases decided by other courts are useful for certain purposes, one must also recognize that because of the inherently individualized process of sentencing, the decisions in other cases turn on their own particular circumstances.

Analysis

Principles of Sentencing

[35] The Supreme Court of Canada has said that the sentencing of an offender is “one of the most delicate stages of the criminal justice process in Canada.”[^11] It requires “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.”[^12]

[36] The notion of proportionality is the fundamental principle in sentencing, and that important principle is enshrined in s. 718.1 of the Criminal Code, which provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[37] In its seminal decision in R. v. Lacasse, the Supreme Court of Canada described proportionality as “the cardinal principle” that must guide sentencing courts in considering the fitness of a sentence imposed on an offender. As the Supreme Court explained, “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”[^13]

[38] In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.”[^14] Indeed, the Court described how an unfit sentence can undermine public confidence in the administration of justice:

The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.[^15]

[39] Section 718 of the Code sets out certain objectives of sentencing and provides that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating 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 acknowledgment of the harm done to victims or to the community.

[40] Section 718.2 of the Code sets out other sentencing considerations, including the following:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, …

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[41] The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.”[^16] In R. v. Nasogaluak, the Supreme Court described this individualized process in the following terms:

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. … No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.[^17]

[42] My task is to impose a sentence that is appropriate for Mr. Travis “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^18]

Mitigating Factors

[43] I consider the following mitigating factors:

Lack of criminal record

[44] Mr. Travis had no criminal record at all. That is a primary consideration.

Youthful first offender

[45] Moreover, Mr. Travis is a young man. He was only 26 years of age at the time of the offence. I consider him to be a relatively youthful first offender. This consideration is deserving of significant weight.

[46] Having said that, I would simply note that, as our Court of Appeal observed in R. v. Marshall, although the courts should impose the shortest possible sentence in cases involving a youthful first time offender, the sentence must also be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence.[^19]

Support of the community

[47] It appears that Mr. Travis has support in the community, and that is a mitigating factor. The pre-sentence report notes that, as confirmed by the collateral contacts, Mr. Travis shares positive relationships with his immediate and extended family. His father was in attendance at court throughout the proceeding. Further, Mr. Travis has been in a stable and positive relationship with the same woman, the mother of their child, for four-and-a-half years. Mr. Travis has also lined up an employment position at a local restaurant/bakery once his matter before the court is resolved, and that prospective employer confirms his willingness to take on Mr. Travis.

Positive pre-sentence report

[48] I consider the report before the court to be a very positive pre-sentence report, and that also is a mitigating factor. Crown counsel herself very fairly conceded that the report was “positive” and highlighted qualities of Mr. Travis that “are qualities of a good person.” Again, the report concludes that, “[o]n all accounts, [Mr. Travis] presents as pro-social which was confirmed via collateral contacts.”[^20] I agree with Ms. Carroccia’s submission that Mr. Travis presents as a very viable candidate for rehabilitation.

Considerations of remorse

[49] The pre-sentence report also notes that Mr. Travis appeared “to accept responsibility for his actions which led to the offences currently before the court.”[^21] The report goes on to note that Mr. Travis expressed remorse and regret regarding his offending behaviour and voiced frustration with his actions. That remorse and regret were echoed in Mr. Travis’s allocution to this court, in which he apologized to the court for his actions.

Efficient conduct of the proceeding

[50] I also agree with Ms. Carroccia’s submission that the manner in which Mr. Travis conducted his defence before the court is worthy of consideration and carries some mitigating effect. While Mr. Travis did not plead guilty to the charges and thus, as Ms. Carroccia acknowledges, he is not entitled to the full mitigating impact that a guilty plea carries, nonetheless, the defence cooperated with the Crown to ensure an efficient and expeditious proceeding. In particular, once the Charter questions on the voir dire were determined – and even Ms. Mizel for the Crown conceded, very fairly I thought, that “there were legitimate issues on the Charter application” – the defence elected to call no further evidence, and thus there was no need to conduct a full trial. In my view, the manner in which Mr. Travis elected to conduct his defence is entitled to some mitigating weight.

Aggravating Factors

[51] In my view, on the facts of this case, Mr. Travis’s possession of a loaded firearm while attempting to escape the police is a significant aggravating factor.[^22]

[52] The Crown’s submissions did not identify any other specific aggravating factor in the circumstances of the instant case.

Appropriate Sentence

[53] The courts have recognized that s. 95(1) of the Code casts a “wide net” over a broad range of potential conduct.[^23] Counsel for the Crown and the defence before me both ground their submissions on the oft-cited dictum of the range of potential offenders caught by s. 95, as expressed by Doherty J.A. writing for a unanimous five-judge panel of the Ontario Court of Appeal in R. v. Nur, as follows:

The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person’s conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.[^24]

[54] On appeal in R. v. Nur, the Supreme Court of Canada expressly approved of the concept of the “wide range of potential conduct” caught by s. 95 as expressed by Doherty J.A. The Supreme Court quoted from the passage above by Doherty J.A. to describe the “outlaw” standing at one end of the spectrum, “who carries a loaded prohibited … firearm in public places as a tool of his … criminal trade,” as being an offender “engaged in truly criminal conduct” and who “poses a real and immediate danger to the public.”[^25]

[55] It was also noted by Doherty J.A. that the “the vast majority of s. 95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.”[^26] That observation was echoed in the Supreme Court’s analysis as well.[^27]

[56] However, in my view, it is also significant that the Supreme Court went on to describe a middle position within the s. 95 range, beyond the end of the spectrum occupied by the “outlaw” engaged in “truly criminal conduct,” in the following terms:

A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so.[^28]

[57] In the instant case, in my view, consideration of the appropriate sentence for Mr. Travis must focus on the objectives of denunciation, general deterrence, and the overriding goal of the protection of the public. Indeed, it is important to remind myself at the outset of the analysis that our courts have taken notice of “the lethal problem posed by illegal handguns.”[^29] It is almost trite to say that, “[g]un-related crime poses grave dangers to Canadians.”[^30]

[58] As Brown J.A. observed, writing in dissent in R. v. Omar at the Ontario Court of Appeal but subsequently adopted by the majority of the Supreme Court of Canada, “the distinctive feature of illegal handguns” is that they “are used to kill people or threaten them with physical harm – nothing else.”[^31]

[59] I note that the Omar decision arose out of the City of Windsor.

[60] In a similar vein, in R. v. Nkrumah, another decision arising out of the City of Windsor, in which the offender was part of a single transaction in selling a .357 calibre magnum handgun to an undercover police officer for $5,000, our own Regional Senior Justice Thomas noted that:

The prevalence of firearms in criminal offences in this city is alarming. It is not a phenomenon experienced only in Windsor. The use, particularly of handguns in criminal offences, impacts on the safety of all in the community. When the court is confronted by a transaction like this one, it must react meaningfully. The focus of sentencing must be on denunciation and deterrence, most particularly, general deterrence and the overriding goal of protection of the public.[^32]

[61] While the “transaction” in the Nkrumah case involved trafficking in firearms, nonetheless, the decision of R.S.J. Thomas remains instructive on the applicable sentencing objectives.

[62] In that vein, while the submissions of Ms. Carroccia for the defence emphasized the status of Mr. Travis as a youthful first offender and his positive rehabilitative prospects, nonetheless Ms. Carroccia quite properly admitted at the outset of her submissions that the primary objectives in this case should be denunciation and deterrence. I agree.

[63] In terms of placement of the conduct of Mr. Travis along the spectrum articulated in R. v. Nur, I agree with the submissions of Ms. Mizel for the Crown that Mr. Travis’s misconduct is not properly characterized as “more in the nature of a regulatory offence”[^33] or a mere “licensing infraction.”[^34]

[64] That said, I also agree with the submissions of Ms. Carroccia that the actions of Mr. Travis in this case cannot fairly be said to be akin to the “outlaw” engaged in “truly criminal conduct” who uses a loaded prohibited firearm “as a tool of his criminal trade.” There is no evidence that Mr. Travis’s possession of the Smith & Wesson revolver was for the purpose of using it “as a tool of his criminal trade.” Indeed, there is no compelling evidence of any “criminal trade” on the part of Mr. Travis in this case – and that is a central feature that distinguishes this case from many of the authorities to which I was referred in the course of counsel’s submissions.

[65] Rather, the indication from the pre-sentence report as to Mr. Travis’s motivation behind his offending behaviour was that he was carrying the firearm on his person for purposes of self-protection, as he reported having been assaulted on two previous occasions in the community, with one of those altercations involving an assailant armed with a knife, resulting in Mr. Travis sustaining a laceration to the back of his neck. While one can understand that Mr. Travis may well have felt vulnerable following those two incidents, nonetheless, his consequent decision to arm himself with a loaded prohibited firearm in response represents, to the say the very least, a very serious error in judgment, which resulted in a situation where he exposed himself, the police officers chasing him, and the general public to the risk of grave danger.

[66] Accordingly, I find that, as Ms. Carroccia submits, the conduct of Mr. Travis falls in between the two ends of the Nur spectrum. It is certainly not a mere licensing infraction, but at the same time I cannot equate it with the same type of “truly criminal conduct” reflected in many of the relevant authorities, including those referenced by counsel before me.

[67] For example, in R. v. Mansingh, a 27-year-old first offender was convicted of several gun-related charges, arising out of a single incident, in which the offender encountered police officers – while armed with a loaded, prohibited handgun – on his way to deliver some marijuana to a friend. The trial judge imposed an effective sentence of 43 months, and the Ontario Court of Appeal upheld the sentence.[^35]

[68] The Court of Appeal noted that the trial judge found the offender was engaged in commercial drug trafficking, albeit at a low level, at the time he was in possession of the loaded handgun and further noted that the trial judge treated that as a significantly aggravating factor. The Court of Appeal upheld these findings of the trial judge as being open on the evidence, additionally noting that the offender was in possession of a large amount of cash and a loaded handgun. As the Court of Appeal observed, both of those factors indicated that the offender was in the business of selling drugs and was not merely delivering the drugs to a friend as a favour.[^36]

[69] The findings made in Mansingh – that the offender was engaged in commercial drug trafficking at the time of his possession of a loaded firearm – in other words, that the offender decided to arm himself while heading out to engage in a drug transaction – stand in stark contrast to the circumstances of the instant case involving Mr. Travis.

[70] As such, in my view, the circumstances in which Mr. Travis finds himself in are quite different from those in the Mansingh case. Given the circumstances of the commercial drug-trafficking in Mansingh, it is clear that the moral blameworthiness of Mr. Mansingh was much greater than that of Mr. Travis in the circumstances of the instant case.

[71] In the 2015 decision of the Ontario Court of Appeal in R. v. Marshall, the offender was sentenced to three-and-one-half years or 42 months for possession of a loaded prohibited handgun found in a bag during a search of an apartment as part of a drug investigation. The offender was convicted of possession of a loaded prohibited firearm, and on the same day, he pleaded guilty to unrelated possession for purpose of trafficking charge and two counts of breach of his recognizance of bail. The offender was 23 years old and had no criminal record. However, he was involved in the drug trade. Indeed, the Court of Appeal found that the offender was “enmeshed in the world of drugs.”[^37]

[72] The Court of Appeal found that the appellant-offender in Marshall fell within the category of offenders engaged in “truly criminal conduct,” as follows:

The appellant falls within this category of offenders. By the appellant’s own admission, he was present in Sudbury at [his co-accused] Gagan’s apartment on October 6, 2011 for the express purpose of trafficking in drugs. He sold at least 15 grams of cocaine that day. He was in possession of a prohibited loaded handgun at a location where drug deals were occurring, several individuals were present in addition to [his co-accused] Khan and Gagan, and the potential for violence was high. On the trial judge’s findings, the appellant then left the loaded handgun in his Lacoste bag at Gagan’s apartment, while he and his girlfriend went out for lunch.

There can be no doubt that this type of crime, in the circumstances described above, is an offence at the “true crime” end of the s. 95 spectrum of offences described by this court in Nur. Denunciation, deterrence and protection of the public are unquestionably the paramount principles of sentencing implicated for such a crime.[^38]

[73] In dismissing the appeal from the 42-month sentence, the Court of Appeal highlighted the appellant-offender’s “commission of a serious drug-related offence while on bail for his weapons offence,” as well as “his negative pre-sentence report.”[^39]

[74] I simply note that those factual circumstances and that degree of significant criminal activity, justifying a three-and-a-half years sentence in Marshall, are conspicuously absent in the instant circumstances involving Mr. Travis.

[75] In the Nur decision itself, which involved a youthful first offender who was 21 years of age at the time of sentencing, the trial judge imposed a sentence of 40 months (or three years and four months), and Doherty J.A., on appeal, commented that regardless of the three-year minimum penalty (the constitutionality of which was the central question in Nur), the offender, “despite the mitigating factors, could well have received a sentence of three years.”[^40]

[76] However, the facts in Nur were quite different from the circumstances of the instant case. The events underlying the charges in the Nur case began at a community centre located in the Jane and Finch neighbourhood of Toronto, a community in which, as the Court of Appeal noted, gun violence was “a serious and ongoing problem.”[^41]

[77] Early one winter evening, a young man entered the community centre, spoke to a staff member, and advised the staff member that he was afraid of someone who was waiting outside the community centre to “get him.” The staff member saw a person lurking outside who looked very threatening. The staff member decided to put the community centre on lockdown and called the police. When the police arrived at the community centre, they saw four men standing at one of the entrances. Mr. Nur, a refugee from Somalia, was one of the four men. As one of the officers approached the group, all four men ran in different directions.

[78] In my view, there were indications before the sentencing judge in the Nur case that Mr. Nur was engaged in the type of “truly criminal conduct” that would push the sentence towards the position of the spectrum occupied by the “outlaw” using a firearm as one of the tools of his trade.

[79] Those same features, justifying a sentence of three years and four months in Nur, are absent from the instant circumstances involving Mr. Travis.

[80] Counsel also referred me to the very recent decision of the Ontario Court of Justice in R. v. Pierce, another case arising out of Windsor, where the court held that the appropriate sentence for a 27-year-old old “youthful adult offender” with no criminal record for possession of a loaded handgun “who was also in the possession of Schedule 1 substances, which, in itself, creates a higher element of danger”, was imprisonment of three years or 36 months (less presentence custody).[^42]

[81] While the offender in Pierce had pleaded guilty to the charges – a strong mitigating factor that is not present in Mr. Travis’s case – the court’s reference to the charges involving “crack cocaine, powdered cocaine, [and] crystal methamphetamine”[^43] clearly indicates that the offender in Pierce was engaged in a level of “truly criminal conduct” that is not present in the case involving Mr. Travis.

[82] In my view, the absence here of the criminal drug activity that was clearly apparent in the Pierce case indicates that a just and fit sentence in the circumstances of Mr. Travis should be less than three years.

[83] Finally, defence counsel referred me to the decision of S. Bondy J. of the Ontario Court of Justice in R. v. Ohamu, in which the offender was sentenced to a term of incarceration of two years and six months or 30 months for possession of a loaded restricted firearm and unlawful possession of a firearm while prohibited from doing so.[^44]

[84] In my view, the evidence before the sentencing judge in Ohamu indicates that the offender was involved in the drug trade to some appreciable degree. In that case, on one day in April 2015, officers of the Drugs and Guns Unit of the Windsor Police Service were granted a warrant under the Controlled Drugs and Substances Act[^45] in connection with an apartment located on Wyandotte Street in Windsor. The police entered those premises at 8:00 p.m. that same night. The police located a number of individuals and a number of drugs inside those premises.[^46]

[85] At 8:07 p.m. and in the course of executing the warrant, a taxi arrived at the same location on Wyandotte Street. The offender and three other males were inside that cab. One other of the males had possession of a firearm, namely a Ruger 357 Magnum revolver with six rounds of ammunition loaded in it. The offender exited the taxi, fled on foot, and engaged in a foot chase with a police officer. During the chase, the offender was observed throwing a black handgun. Eventually, the offender was detained and arrested, and the handgun was recovered. It was as a Springfield Armoury 9 mm. handgun loaded with eight rounds of live ammunition.[^47]

[86] In any event, the sentencing judge found that the Crown put it best when he said of the offender that “he was up to no good.”[^48]

[87] At the time of his arrest, the offender was subject to interim terms of release relating to other criminal charges and subject to the condition that he not possess any weapon.[^49]

[88] I appreciate that, as in Pierce, the offender in Ohamu had pleaded guilty to the charges facing him – again, a strong mitigating factor that is not available to Mr. Travis. However, the factual circumstances in Ohamu also indicate that the offender in Ohamu was engaged in some level of “truly criminal conduct” – whether drug activity or just “up to no good” - that is simply not present in the case involving Mr. Travis.

[89] Moreover, the sentencing judge specifically found that the offender in Ohamu “brashly defied a condition to his bail terms that he not possess any such weapons or handguns. This is a specific aggravating factor.”[^50] And that is also an aggravating factor that is specifically not involved in the circumstances confronting Mr. Travis.

[90] In my view, again, given the absence here of the indications of criminal activity that were apparent in the Ohamu case, as well as Mr. Ohamu’s “brash” defiance of his bail conditions not to possess any firearm or weapon, I find that a just and fit sentence in the circumstances of Mr. Travis should be somewhat less than the 30 months imposed in Ohamu.

[91] In all of the circumstances of this case, I have come to the conclusion that a just, fit, and proportionate sentence for Mr. Travis on count no. 1 for the conviction for possession of the loaded prohibited firearm is a term of imprisonment for two years and five months, or 29 months. In coming to that “net” conclusion, I have already taken into account the five days that Mr. Travis served in custody in the South West Detention Centre in January 2017.

[92] I should also say that in coming to my conclusion that the appropriate sentence for Mr. Travis in this case is 29 months, I am acutely aware that my decision will be seen by some – and fairly so – as being lenient. But, in my view, it is not inappropriately so. In my view, considering the mitigating factors present in Mr. Travis’s case, coupled with his very positive and promising rehabilitative prospects, Mr. Travis is deserving of some leniency and some opportunity to better himself. The court has every expectation that, for the sake of himself, his family, and most importantly, for the sake of his daughter, Mr. Travis will not squander the opportunity that the court gives him this day.

Final Disposition

[93] Mr. Travis, would you please stand.

[94] With respect to your conviction on count no. 1 for unauthorized possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, I sentence you to a term of imprisonment for two years and five months, or 29 months.

[95] With respect to your conviction on count no. 5 for unauthorized carrying of a concealed weapon, I sentence you to a term of imprisonment for 18 months, to be served concurrently with your sentence on count no. 1.

[96] With respect to your convictions on count nos. 2, 3, and 4, the sentence on those counts is stayed.

[97] In addition, I make the following ancillary orders.

[98] As the weapons offences under ss. 95(1) and 90(1) are each a “secondary designated offence” under s. 487.04 of the Code for the purposes of DNA collection and storage, the making of such a DNA order is discretionary. In the circumstances of this case, I am satisfied that it is in the best interests of the administration of justice to make such an order. While I have considered your lack of a criminal record, the weapons offences that you have committed are very serious and, as such, the making of such an order would better serve the interests of the administration of justice. Accordingly, in respect of your conviction on count no. 1 for unauthorized possession of a loaded prohibited firearm, pursuant to s. 487.051(3) of the Code, I make an order in Form 5.04 authorizing the taking of the number of samples of your bodily substances that is reasonably required for the purposes of forensic DNA analysis. I make a similar order in respect of your conviction on count no. 5 for unauthorized carrying of a concealed weapon. I also make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[99] As I have recited above, following the arrest of Mr. Travis, the police found and seized the Smith & Wesson five-shot, .38 caliber revolver (serial no. J744844), together with the .38 caliber ammunition loaded in the firearm. It follows from the findings that I made on the Charter application that the said firearm and ammunition were “used in the commission of an offence” within the meaning of s. 491(1)(a) of the Code. As such, under the terms of s. 491(1), a forfeiture order is mandatory. Accordingly, there shall be an order pursuant to s. 491(1) of the Code that the said firearm and ammunition is forfeited to Her Majesty the Queen in Right of Ontario and shall be disposed of in accordance with that provision.

[100] Finally, pursuant to s. 109(1)(a) of the Code, you are hereby prohibited from possessing any firearm or codified weapon or device beginning today and ending ten years from your release from imprisonment.

“ Original signed and made an Exhibit by Justice Howard ”

J. Paul R. Howard

Justice

Delivered Orally: August 20, 2019

COURT FILE NO.: CR-18-4227

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DYLAN LESLIE-JOHN TRAVIS

REASONS FOR SENTENCE

Howard J.

Delivered Orally: August 20, 2019

[^1]: Criminal Code, R.S.C. 1985, c. C-46. [^2]: Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”). [^3]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^4]: R. v. Travis, 2019 ONSC 2260 (S.C.J.) [“Charter Application Decision”]. [^5]: Kienapple and The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. See also R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; and R. v. Bienvenue, 2016 ONCA 865, at paras. 8-15. [^6]: Pre-Sentence Report dated June 12, 2019, exhibit no. 1 (sentencing hearing), at p. 3. [^7]: Ibid. [^8]: Ibid., at p. 4. [^9]: Ibid., at p. 5. [^10]: I also note that the three-year mandatory minimum sentence for a first offence under s. 95(2)(a)(i) of the Code was found to be unconstitutional, as it violates s. 12 of the Charter: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. [^11]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450, at para. 1. [^12]: Ibid. [^13]: Ibid., at para. 12. [^14]: Ibid. [^15]: Ibid., at paras. 3-4. [^16]: R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at p. 567. [^17]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, 251 C.C.C. (3d) 293, at para. 43, citing R. v. L. (T.P.), 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. M. (C.A.); and R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.). [^18]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18. [^19]: R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at para. 53. See also R. v. Borde (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417, 172 C.C.C. (3d) 225, at para. 36. [^20]: Pre-Sentence Report, at p. 5. [^21]: Ibid., at p. 4. [^22]: See R. v. McCue, 2012 ONCA 773, 299 O.A.C. 14, at para. 15. [^23]: R. v. Nur (S.C.C.), at para. 82, affirming R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 49. [^24]: R. v. Nur (Ont. C.A.), at para. 51. [^25]: R. v. Nur (S.C.C.), at para. 82. [^26]: R. v. Nur (Ont. C.A.), at para. 52. [^27]: R. v. Nur (S.C.C.), at para. 82. [^28]: Ibid. [^29]: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 130 per Brown J.A., dissenting. His Honour’s reasons in dissent were subsequently adopted by the majority of the Supreme Court of Canada in brief oral reasons in R. v. Omar, 2019 SCC 32. [^30]: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 1. [^31]: Ibid., at para. 123 per Brown J.A. [^32]: R. v. Nkrumah, 2019 ONSC 3270 (S.C.J.), at p. 2 per Thomas R.S.J., delivered orally on April 29, 2019. [Emphasis added]. I note that in Nkrumah, the accused was convicted of three offences: conspiracy to traffic in firearms, transferring a prohibited firearm, and possession of [^33]: R. v. Nur (Ont. C.A.), at para. 51. [^34]: R. v. Nur (S.C.C.), at para. 83. [^35]: R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379. [^36]: Ibid., at para. 22. [^37]: R. v. Marshall, at para. 1. [^38]: Ibid., at paras. 48 and 49. [^39]: Ibid., at para. 51. [^40]: R. v. Nur (Ont. C.A.), at para. 206. [^41]: Ibid., at para. 11. [^42]: R. v. Pearce, transcript of the reasons for sentence, before L.C. Dean J., Ontario Court of Justice, delivered April 11, 2019 (Information Nos. 0811-998-17-1712 and 0811-998-18-1028), at p. 1. [^43]: Ibid., at p. 3. [^44]: R. v. Ohamu, 2017 ONCJ 10. [^45]: Controlled Drugs and Substances Act, S.C. 1996, c. 19. [^46]: R. v. Ohamu, at para. 4. [^47]: Ibid., at para. 5. [^48]: Ibid., at para. 37. [^49]: Ibid., at para. 6. [^50]: Ibid., at para. 36.