COURT FILE NO.: CR-17-50000134-4000

DATE: 20191209

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

THEODORE GITTENS Accused

Alice Bradstreet, for the Crown Jeffrey Fisher, for the Accused

HEARD: October 11, 2019

REASONS FOR DECISION ON SENTENCING

BACKROUND

1On July 12, 2019, I convicted Theodore Gittens of possession of a restricted 9 mm Beretta handgun without possessing a license to hold it and with possession of a prohibited over-capacity magazine without being licensed to hold it. I further convicted him of possession of cocaine and heroin for the purpose of trafficking.

2At the time of his arrest, Mr. Gittens was living at his family home at 50 Dixington Cres. in Toronto. He has a biological daughter and two step-daughters who lived with their mother in Mississauga at the time of the arrest on April 17, 2016. Mr. Gittens was arrested at the family home where the firearm, magazine, drugs and proceeds were seized.

PRINCIPLES OF SENTENCING

Basic Objectives of Sentencing

3Section 718 of the Criminal Code sets down the principles to govern determinations on sentencing, being: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

4Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 1986 C.C.C. (3d) 129 (Ont. C.A.)].

5Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.)].

6The totality principle must be considered for some sentences. Section 718.2(c) of the Criminal Code provides "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh." The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: [R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42, (S.C.C.)]. If the cumulative sentence is too harsh, the court must adjust the total sentence in order that it not be out of proportion to the gravity of the offences.

Principles of Sentencing for Drugs and Firearm Offences

7Courts have recognized the particularly insidious dangers to people and society created by drugs like cocaine and heroin.

8The Ontario Court of Appeal confirmed that cocaine, a Schedule I drug under the CDSA, is an "extremely dangerous and insidious drug with a potential to cause a great deal of harm to individuals and to society". For this reason, trafficking in drugs or possession of that type of drug for a commercial purpose has been viewed as an aggravating factor on sentencing. This is more the case with heroin, another Schedule I drug, that is more addictive and dangerous than cocaine.

9Courts have held that emphasis should be given in sentencing to the principles of denunciation and deterrence in cases involving more dangerous drugs and cautioned that the prospect for rehabilitation should not be neglected if addiction is a factor: [R. v. Woodcock 2002 CarswellOnt 7683, at para. 8, (Ont. C.A.)].

10In another case the Court of Appeal emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related offences. As the court stressed, "… our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest 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": [R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, at para. 78, (Ont. C.A.)].

11The spectrum of sentence for firearm offences is wide: [R. v. Nur 2013 ONCA 677 (Ont. C.A)]. Possession of a firearm in the context of drugs is a particularly toxic combination: [R. v. Wong 2012 ONCA 767 (Ont. C.A.)].

EVIDENCE OF SUPPORT FOR MR. GITTENS

12Mr. Gittens filed 14 letters of support from family members, friends, a pastor, parents of friends and a past employer. All give glowing descriptions of him as a wonderful father and respected and loved member of his family. Mr. Gittens has close connections with his family. That was evident from the many family members who attended court for his sentencing hearing. He has a reputation of being a mentor and friend to younger family members and friends. The overall impression I get from the letters of support is that Mr. Gittens is a stand-up family and community-minded man.

13The Human Resources representative from his past employer described Mr. Gittens as a hard-working team player and a responsible person whom the employer would be pleased to have return to work for the company.

14All in all, the persons who wrote letters expressed shock and surprise about the offences Mr. Gittens was convicted on. They apparently were unaware of the life he had been living that would have him in possession in his bedroom of large quantities of very addictive drugs, packaged for sale, over $11,000.00 in a safe, an unloaded firearm with an over extended magazine and a bullet proof vest, in addition to drug paraphernalia and a drug cutting agent. Clearly, trafficking in such addictive drugs in the community does not comport with having a positive community-minded image. His true lifestyle does not really present a picture of a good role model for younger children.

AGGRAVATING AND MITIGATION FACTORS

15The aggravating factors are:

• Mr. Gittens was found in possession of large quantities of pernicious and addictive heroin and cocaine, packaged for sale;

• The drugs were found in association with a large quantity of money, an unloaded firearm, an over-extended magazine and a bullet-proof vest, which portends violence in connection with the sale of the drugs;

• There is no evidence that Mr. Gittens has a drug addiction problem, so the possession of the drugs represents a purely profit-driven commercial operation;

• He kept drugs out in the open in a household where two small children, his nieces, lived. The firearm, while in a closet, was hidden only inside clothing where it could be accessible to children.

• Mr. Gittens was not employed at the time of his arrest. He received government assistance while he was earning drug money.

16The mitigating factors are:

• Mr. Gittens does not have a criminal record.

• The firearm and magazine were unloaded.

• He was relatively young when he was arrested at age 27 years.

• He is a family man who is close to and cares for his three daughters.

• Mr. Gittens is close to his other family members and mentors and gives advice to his younger relatives;

• He has lived a pro-social life while out on bail maintaining close connections with his family and working successfully as an equipment operator.

• He is respected by family, friends and others in the community who wrote letters of support.

• Mr. Gittens is a good prospect for rehabilitation.

17Mr. Gittens did not accept responsibility for his crimes. He has shown no remorse. While this cannot be regarded as an aggravating factor, Mr. Gittens will not receive the benefit of mitigation that a guilty plea might bring.

THE PARTIES’ POSITIONS

The Crown

Proposed Sentence

18The Crown seeks a 6-year custodial sentence subject to reduction for pre-trial custody. The Crown also seeks the following ancillary orders: a mandatory DNA order, a s. 109 firearm prohibition and a forfeiture order for the $11,045.00 located in the safe, and the further amounts of $400.00 and $1,530.00 that were also seized. The defence does not dispute the ancillary orders.

Case Authorities

19The Crown cited several cases in support of its position.

• R. v. Elvira, 2018 ONSC 7008, [2018] O.J. No. 6185 (Ont. S.C.J.): offender sentenced to 3 years; found in possession of heroin and cocaine and a loaded, restricted firearm in plain view; offender age 24 years with no criminal record.

• R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (Ont. C.A.): offender with no criminal record; good prospects for rehabilitation; discarded a loaded firearm while being pursued by the police; he had the firearm’s magazine on his person as well as marijuana and a large amount of cash; court found commercial drug operation an aggravating factor; sentence of 43 months.

• R. v. Mohamed, [2008] O.J. No. 5492 (Ont. S.C.J.): a pre-Nur decision where offender found in possession of 3 loaded firearms; court found appropriate sentence was 3 to 4 years but sentenced offender to 2 years concurrent for each firearm.

• R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (Ont. C.A.): offender in constructive possession of a loaded firearm while trafficking cocaine from his apartment; offender youthful, no criminal record; good prospect for rehabilitation; sentence 3.5 years.

The Defence

Proposed Sentence

20The defence seeks a 2 1/2-year custodial sentence before reductions for enhanced credits broken down as follows: 2 1/2 years for possession for the purpose of trafficking heroin; 6 months concurrent for possession for the purpose of trafficking cocaine; one year concurrent for possession of a restricted firearm and 3 months concurrent for possession of prohibited device.

21The Crown concedes that the sentences for the two drug-related offences should be served concurrently. But submits that the firearm-related sentence should be served consecutively to the drug-related sentence.

Case Authorities

22The defence cites the following authorities in support of its position.

• R. v. Cotterell, [2004] O.J. No. 3801 (Ont. C.A.): offender age 22; convicted of robbery; offender given a sentence of 2 years and 3 months.

• R. v. Dass, [2008] O.J. No. 1181 (Ont. S.C.J.): offender with criminal record convicted of possession of a restricted firearm, careless storage, possession of a prohibited device, possession of drugs for purpose of trafficking; sentenced to 3¹/2 years; aggravating factors profit-driven drug operation and combination of drug and firearm crimes.

• R. v. Truong, 2019 ONCA 364, [2019] O.J. No. 2281 (Ont. C.A.): offender convicted of possession of cocaine and heroin for the purpose of trafficking; sentence of 26 months upheld on appeal.

Credit for Pre-Trial Custody

23Mr. Gittens was in pre-trial custody at Toronto South Detention Centre from April 18, 2016 to July 15, 2016. He was detained again on January 17, 2019. Mr. Gittens has served a total of 419 real days in pre-trial custody to December 9th. He remains in custody on the day of the sentencing. An offender may receive credit at 1.5:1 for a period of pre-trial custody: [R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.)]. At 1.5:1, Mr. Gittens would be entitled to 176.5 days’ credit.

24During his custody periods the detention facility was under 137 days of lockdown. The percentage of days in lockdown is 38%. Some of the lockdowns were for 12 1/2 hours a day. The number of days that the lockdowns began from 11:00 a.m. or earlier were 77 of the 137 days. There were also multi-day lockdowns. Mr. Gittens seeks enhanced credit beyond 1.5:1 based on the conditions he faced and the impact on him during lockdown.

25The defence relies on cases that have addressed the issue of the circumstances where extra credit is appropriate: [R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (Ont. C.A.); R. v. J.B., [2016] O.J. No. 588 (Ont. S.C.J.); R. v. Nsiah, [2017] O.J. No. 526 (Ont. S.C.J.); R. v. Passera, 2019 ONCA 527, [2017] O.J. No. 4381 (Ont. C.A.)].

26R. v. Summers held that "the unavoidable consequence of capping pre-sentence credit at [the 1.5:1 rate] is that it is insufficient to compensate for the harshness of presentence detention in all cases.": [R. v. Summers, at para. 15].

27R. v. Duncan held that sentencing judges can give credit for especially harsh conditions as a mitigating factor on sentencing. In considering whether any enhanced credit should be given, the court will consider both: (a) the conditions of the pre-sentence incarceration; and (b) the adverse effect of those conditions on the accused. The court in Duncan determined that the offender’s circumstances did not satisfy the two criteria and denied enhanced credit: [R v. Duncan, at para. 6].

28In R. v. J.B. the court granted 3 months’ enhanced credit for the harsh conditions of 128 days of lockdowns where at times showers, times out of the cell and phone calls were denied. In R. v. Nsaiah the offender served 566 days in pre-trial custody, 246 days of which were in full and partial lockdown. The court gave four months’ enhanced credit. In R. v. Passera the offender faced 167 lockdown days. It was admitted that she had served more time in her cell than the rules permit and that staff shortages were the cause of many lockdowns. The court gave 3 months enhanced credit.

29Mr. Gittens filed an affidavit setting out his circumstances while in lockdown and the impact of those conditions on him. He attests to the fact that during lockdowns, showers, phone calls to family, visits and yard time were significantly restricted. He indicates he finds particularly harsh losing contact with his family, the lack of hygiene and lack of privacy while confined to the cell with a cell mate for prolonged periods.

30The defence seeks 4 months’ enhanced credit for the conditions he faced during lockdown. The Crown does not dispute the enhanced credit sought by the defence.

Credit for Conditions on Release

31Mr. Gittens also seeks enhanced credit beyond 1.5:1 credit for his bail conditions: [R v. Downes, (2006) 2006 CanLII 3957 (ON CA), 208 O.A.C. 324 (Ont. C.A.)].

32Mr. Gittens was on strict house arrest bail for 4 1/2 months from July 15, 2016 until December 5, 2016. The terms were varied from December 5, 2016 to April 17, 2017 to allow him to go to work. From April 17, 2017 until trial his terms were further varied to a curfew.

33The defence focuses on the positive involvements Mr. Gittens was engaged in during release. He maintained close family ties. The defence points out that Mr. Gittens was not re-incarcerated because of misconduct in the community, not for breach of his bail conditions, but rather from circumstances that arose at trial.

34The defence seeks 60 days’ credit for Mr. Gittens’ conditions on bail. The Crown does not dispute Mr. Gittens receiving that credit.

35The sentence is a fit sentence that rightly reflects the objectives of denunciation, deterrence and separation of the offender from society.

CONCLUSION

36The defence seeks to have the drug-related sentence served concurrently to the firearm-related sentence.

37Generally, the decision to order concurrent or consecutive sentences, which is essentially a decision on the length of sentence, is discretionary in the sentencing judge and is treated with deference by appellate courts. Factors to consider when deciding whether a sentence should be served consecutively or concurrently are: the time-frame of the offences, the similarity of the offences, whether a new intent is raised by each offence and whether the total sentence is fit and proper: [R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948]. The totality principle should therefore be heeded in fashioning a fit global sentence.

38With those considerations in mind, I find that concurrent sentences should be ordered for the drug-related offences and concurrent sentences should be ordered for the firearm-related offences. The concurrent firearm-related offences should be served consecutively to the concurrent drug-related offences. The drug-related offences themselves are clearly related in terms subject matter, time-frame and location. The firearm-related offences themselves meet the same requirements. As between the drug-related offences and the firearm-related offences, although seized at the same location during the same time-frame, they constitute different subject matters.

39I considered the case authorities submitted by the parties and weighed the aggravating and mitigating circumstances. I also have in mind the requests for credit for conditions on pre-trial custody and for the conditions on bail.

40I find a fit sentence to be a total 4 years’ incarceration before reductions, broken down as follows: 2 years for possession for the purpose of trafficking heroin and 1 year concurrent for possession of cocaine for the purpose of trafficking; 2 years for possession of a restricted firearm and 6 months concurrent for possession of a prohibited device. The drug-related sentence shall be served consecutively to the firearm-related sentence.

41Mr. Gittens shall receive 60 days’ credit for conditions on bail and shall also receive 120 days’ credit for conditions on pre-trial custody.

42The 419 real pre-trial custody days served enhanced by 1.5:1 is 629 days. Added to the 629 days is the 60 days for conditions on bail and the 120 days for conditions on pre-trial custody which amounts to a total of 809 days. Mr. Gittens’ remaining sentence is therefore 613 days.

SENTENCE

43I will now pass sentence. Theodore Gittens, will you please stand?

44I have sentenced you to a total of 4 years’ imprisonment broken down as follows:

• 2 years’ imprisonment for possession of heroin for the purpose of trafficking and, to be served concurrently, 1-year imprisonment for possession of cocaine for the purpose of trafficking; and

• 2 years’ imprisonment for possession of a restricted weapon, and, to be served concurrently, 6 months’ imprisonment for possession of a prohibited device.

• The sentence for the firearm-related offences shall be served consecutively to the drug-related offences.

45You have served 410 days in pre-trial custody, enhanced by 1.5:1, equals 629 days. I allow you 60 days’ credit for conditions on bail. I allow you a further 120 days’ credit for conditions on pre-trial custody.

46Your remaining sentence in prison is therefore 631 days.

47I impose the following ancillary orders:

• a mandatory DNA order;

• a s. 109 firearm prohibition for 10 years effective after release from prison; and

• a forfeiture order for the $11,045.00 amount located in the safe and for the further amounts of $400.00 and $1,530.00 also seized.

B.A. Allen J.