COURT FILE NO.: CR/19/30000365/0000
DATE: 20200603
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
cameron steckley
R. Fried, for the Crown
S. Dimitrijevic, for Mr. Steckley
HEARD: March 13, 2020 and May 26, 2020
KELLY J.
reasons for SENTENCE
[1] Mr. Cameron Steckley has pleaded guilty to possessing a prohibited firearm with ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C., 1985, c. C-46. He has also pleaded guilty to possessing the loaded firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code. Mr. Steckley appears before me now for sentencing.
[2] Crown counsel submits that the appropriate sentence is a global one of 3.5 years in custody. Counsel for Mr. Steckley submits that the appropriate sentence is a global one of 3 years.
[3] Both counsel agree that Mr. Steckley should receive credit for time served, pursuant to R. v. Summers.[^1] They also agree that some credit should be given for the harsh conditions experienced by Mr. Steckley while incarcerated in the Toronto East and the Toronto South Detention Centres, pursuant to R. v. Duncan.[^2] They simply disagree on the amount.
[4] Crown counsel submits that Mr. Steckley should be given 3 to 4 months of Duncan credit. Counsel for Mr. Steckley submits that approximately 14 months is appropriate.
[5] Lastly, both counsel agree that the following ancillary orders should be imposed:
(i) an order pursuant to s. 109 of the Criminal Code that Mr. Steckley be prohibited from possessing any weapons for life; and
(ii) a forfeiture order for the firearm seized.
[6] After having considered the facts of the case, Mr. Steckley’s background and the relevant legal principles, I find that the appropriate sentence is 3.5 years, less time served (3.5 years). Mr. Steckley will be placed on probation for 12 months. The ancillary orders are granted.[^3]
[7] What follows are my reasons.
The Facts
[8] The facts giving rise to the pleas and convictions formed part of an Agreed Statement of Facts (“ASF”). The ASF may be summarized as follows:
a. On Monday August 20, 2018, officers responded to a radio call for a sound of gunshots in the area of 143 Danzig Street in the City of Toronto at approximately 4:00 a.m. Information received from the complainant was that there had been approximately 4 to 5 gunshots in the area and a white motor vehicle was observed fleeing the vicinity. A white vehicle was discovered in the area of the incident travelling northbound on Manse Road south of Lawrence Avenue East by officers responding to the call.
b. It was noted that the vehicle had no rear lights on despite the darkness at the time. As the officer drove by the occupants of the vehicle, the driver appeared to be concealing his face. The vehicle turned onto Kingston Road and the officers activated their vehicle’s emergency equipment. The driver stopped the vehicle and was approached by the responding officer. As the officer requested the driver’s documents, the driver, identified as Mr. Cameron Steckley, appeared nervous and was visibly shaking as he spoke.
c. The passenger in the front seat, identified as Mr. Adam Mohamud, appeared to be concealing an unknown item between his legs. The occupants of the vehicle were advised that they were being held for investigative detention at that time. Mr. Steckley was taken into custody and additional responding officers assisted in detaining the remaining passengers. Upon the investigation of Mr. Mohamed Mohamud, who was also a passenger in the vehicle, it was found that he was in possession of a black, loaded, semi-automatic pistol in a pouch on his chest.
d. All three individuals were arrested and after a search, Mr. Steckley was found in possession of $1,800.00 in Canadian currency. A search incident to the arrest of Mr. Adam Mohamud revealed that he was in possession of $1,820.00 in Canadian currency and $217.00 United States currency. A search incident to the arrest of Mr. Mohamed Mohamud revealed that he was in possession of $920.00 in Canadian currency.
e. A second firearm was located inside the vehicle underneath the front passenger seat where Mr. Adam Mohamud had been seated.
f. The vehicle, a 2014 White Ford Fusion with Ontario Licence Plate CANZ715, was seized and held pending the execution of a Criminal Code search warrant. Arresting officers indicated that inside the vehicle were several baggies of marijuana in plain view.
[9] The following firearms were seized:
i. a .380 calibre Bryco handgun with serial number: 901875. This is the firearm found under the front passenger seat. It was loaded with 7 rounds of ammunition and one in the chamber. (This is the only firearm that Mr. Steckley admits to possessing.); and
ii. a 9mm Taurus 709 Slim with serial number: TJX21920.
b. Further investigation revealed that Mr. Steckley was subject to a s. 109 weapons prohibition at the time the firearm was found in the vehicle.
[10] These are the facts upon which Mr. Steckley is being sentenced. I will now turn to a consideration of Mr. Steckley’s background.
Personal Background
[11] Mr. Steckley’s background may be summarized as follows:
a. Mr. Steckley is currently 24 years of age. He was born on September 6, 1995.
b. Mr. Steckley is a Canadian citizen.
c. While incarcerated at the Toronto East Detention Centre, Mr. Steckley completed his high school education.
[12] Mr. Steckley has a criminal record that contains the following entries:
| Date | Offence | Sentence |
|---|---|---|
| November 14, 2014 | Armed robbery. | 2 months in custody in addition to 2 months of pre-sentence custody. Probation for 2 years. |
| Use of an imitation firearm during the commission of an indictable offence. | 12 months in custody consecutive to the above sentence. A mandatory weapons prohibition pursuant to s. 109 of the Criminal Code. |
[13] While incarcerated, Mr. Steckley has participated in various programs, including:
a. Amadeusz to complete his high school diploma;
b. Project Prosper;
c. Supportive Relationships; and
d. Problem Solving.
[14] Letters of support were filed on behalf of Mr. Steckley. They may be summarized as follows:
Ms. Mariella Degani: Ms. Degani is Mr. Steckley’s mother. She separated from Mr. Steckley’s father when he was 6 years of age. He spent time with both parents but when his father’s second marriage started having problems, Mr. Steckley was told that he was no longer welcome in their home. Mr. Steckley was devastated. Despite this, Mr. Steckley has been described as a son with a big heart and someone who likes to help others. He is also described by his mother as “respectful, sweet, kind, amazing with children and generous to a fault”. According to his mother, he has a “strong work ethic, he is dependable, punctual, a team player and always ready to learn something new”. She says that Mr. Steckley has admitted to making “poor choices” but is looking forward to changing his behaviour to become a contributing member of society.
Mr. Dale MacLellan: Mr. MacLellan has been in a relationship with Mr. Steckley’s mother since Mr. Steckley was 8 years of age. He treats Mr. Steckley as he would his own children. He describes that Mr. Steckley was eager to learn new skills and was a contributing member of the work crew for his uncle’s landscaping company. Co-workers were impressed with his work ethic. As an Air Cadet, he was well respected. Mr. MacLellan noticed a deterioration in Mr. Steckley’s attitude after being told he was not welcome in his father’s home. Their relationship suffered as a result. Mr. MacLellan describes Mr. Steckley as a “special person” who has the “ability to learn whatever he sets his mind to and is determined to succeed”. Mr. MacLellan remains supportive to seeing him become a “successful, responsible young man”.
Ms. Kimberly D’Chuna: Ms. D’Chuna is the Manager of Programs and Services for Amadeusz. She confirmed Mr. Steckley’s voluntary participation in the Amadeusz program at the Toronto South Detention Centre. In that capacity, Mr. Steckley has been working to develop an “individualized plan of support to address his specific needs”. This plan relates to areas of personal growth, development, life skills, health, future employment and training”. Ms. D’Chuna describes Mr. Steckley as follows:
Throughout his involvement with Amadeusz, Cameron has demonstrated that he is a dedicated, capable, and engaged participant. He attends program regularly, completes assignments, takes initiative in his learning, and asks for help when needed. Additionally, Cameron maintains a positive attitude toward his work with Amadeusz staff.
In a second letter provided by Ms. D’Chuna she described Mr. Steckley’s participation in the education program. He completed his last credit to meet the requirements for his Ontario Secondary School Diploma. He got a mark of 95% in English. He was one of the first students to participate in the graduation ceremony at the Toronto East Detention Centre. He demonstrated many of the attributes that are described above when participating in this program.
[15] I will now turn to a consideration of the relevant legal principles.
The Law
[16] In determining an appropriate sentence for Mr. Steckley, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- 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.
[17] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^4]
[18] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^5]
Range of Sentence
[19] The case law provided to the Court demonstrates that the position advanced by both counsel is within the range that is appropriate for offences similar to those committed by Mr. Steckley. In particular, see R. v. Nur[^6] where Mr. Nur was sentenced to 40 months for possessing a firearm. He had no record, had pleaded guilty and had a supportive family. Such a sentence was upheld by the Supreme Court of Canada. In R. v. Marshall,[^7] Mr. Marshall also received a 42-month sentence for possessing a firearm. He, too, had no record. This sentence was upheld by the Court of Appeal. In the case of R. v. McKenzie,[^8] Campbell J. imposed a sentence of 42 months for possessing a firearm in breach of a s. 117 order. Mr. McKenzie had a record and support in the community.
Covid-19 Considerations
[20] Other cases provided by counsel for Mr. Steckley were also helpful. In particular, regarding the COVID-19 considerations.
[21] Mr. Steckley has pleaded guilty and proceeded to sentencing during the global COVID-19 pandemic. The circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution. This observation has been made by several jurists, including Harris J. in R. v. Kandhai[^9] at para. 7:
Hardship in serving a jail sentence has always been a proper consideration in crafting an appropriate sentence. There is no specific evidence before me as to the effects on Mr. Kandhai, but there need not be. It is obvious at least up to a certain degree. The entire country is being told to avoid congregations of people. A jail is exactly that, a state mandated congregation of people, excluded from the rest of the population by reason of their crimes or alleged crimes. The situation, which has led to drastic measures in society at large, is bound to increase day to day hardship in prison and the general risk to the welfare of prison inmates.
[22] In considering the fit sentence in the current climate, it is suggested that the court may consider the impact of the pandemic on sentencing principles. Pomerance J. has given guidance on this issue in R. v. Hearns[^10] starting at para. 15 wherein she held:
How does all of this [the COVID-19 pandemic] impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.
COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.
[23] The Court of Appeal for Ontario has also addressed COVID-19 in R. v. Morgan.[^11] Mr. Morgan was sentenced to two years less a day for aggravated assault and three counts of failing to comply with court orders. Mr. Morgan submitted that although the sentence was fit at the time it was imposed, the intervening events of the COVID-19 pandemic have rendered it unfit and he sought a reduction of sentence. Beginning at para. 8, the Court of Appeal held as follows:
In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.
In our view, the appellant’s submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:
The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.
However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:
I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case – collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
Consecutive Sentences
[24] The sentence for breaching the court order must be consecutive. That charge represents a separate and distinct offence from that of possessing the firearm and ammunition.[^12]
[25] I will now turn to a consideration of the fit sentence.
Analysis
a. Mitigating and Aggravating Factors
[26] In considering the fit sentence, I find the following to be the aggravating factors:
a. Mr. Steckley possessed the loaded firearm in our city that is plagued with firearm possession and use.
b. Mr. Steckley possessed this firearm and ammunition in breach of a prohibition order.
c. Mr. Steckley has a criminal record and has been incarcerated in the past.
[27] There are mitigating circumstances to consider in sentencing Mr. Steckley as well:
a. There was a plea of guilt. The plea resulted in a saving of resources in a post-Jordan era and where the COVID-19 crisis has put additional strain on our judicial resources.
b. Mr. Steckley has shown remorse by pleading guilty.
c. Mr. Steckley gave up his right to advance a potential Charter argument in the circumstances.
d. The plea provided certainty of result. The witnesses did not have to testify.
e. Mr. Steckley has the support of his community. His mother and stepfather remain supportive.
f. Mr. Steckley has demonstrated that he was a valuable employee in the past.
g. Mr. Steckley has made wise use of his time while incarcerated. He has attended some programs. His attendance for further education demonstrates a capacity for rehabilitation.
b. The Fit Sentence
[28] So what is the fit sentence?
[29] Mr. Steckley’s plea of guilt is important, not only because it saved resources in a post-Jordan era, but because it is saving resources at a time the Court will be dealing with cases not reached due to the COVID-19 pandemic. The saving of court time in these circumstances is significant.
[30] I also recognize that while the world deals with this pandemic, the conditions of serving a sentence in any jail setting may be more difficult. That said, the collateral consequences of COVID-19 cannot be used to reduce Mr. Steckley’s sentence to a point where his sentence becomes disproportionate to the offence of possessing a loaded firearm in breach of a court order and his blameworthiness for doing so.[^13]
[31] I also cannot ignore Mr. Steckley’s possible rehabilitation. It is clear that Mr. Steckley has a real opportunity to return to being a pro-social member of our community with the support of his mother and stepfather. His efforts at reform through education should be commended. However, I find that the primary sentencing objectives in this case are denuciation and deterrence.
[32] In all of the circumstances, I find that the appropriate sentence is a global one of 3.5 years.
[33] Mr. Steckley is entitled to a reduction in sentence for a variety of reasons.
c. The Summers Credit
[34] Mr. Steckley will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers. Mr. Steckley has been in custody since August 20, 2018. As such, he has spent 645 days in custody or 21.5 months. Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Steckley will be given credit for 32 months.
d. The Duncan Credit
[35] In certain circumstances, particularly when harsh conditions prevailed during pre-sentence incarceration, mitigation greater than the 1.5 days credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the pre-sentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the pre-sentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the pre-sentence incarceration.[^14]
[36] Both counsel agree that Mr. Steckley has suffered some hardship as a result of the circumstances of his incarceration; they simply disagree on the amount of credit that should be granted. As I have stated above, Crown counsel submits that the maximum credit granted should be 3 to 4 months. Counsel for Mr. Steckley submits that the amount of credit should be 14 months. I have determined that Mr. Steckley should be given a credit of 10 months.
[37] During the time that Mr. Steckley was incarcerated, he spent the following amount of time in the following institutions:
| Institution | Dates | Number of Days |
|---|---|---|
| Toronto East Detention Centre (“TEDC”). | August 21, 2018 to February 11, 2020. | 540 |
| Toronto South Detention Centre (“TSDC”). | February 12, 2020 to present. | 105 |
[38] Mr. Steckley described the conditions of his incarceration at the TEDC as follows:
a. When not in lockdown, the inmates were permitted out of their cells from 9:00 a.m. to 10:30 a.m.; 1:00 p.m. to 3:00 p.m. and 6:00 p.m. to 8:30 p.m.
b. When the unit was not overpopulated, the following was the status quo:
i. there are about 20 inmates on the unit;
ii. there are three phones;
iii. there are two showers; and
iv. there is a common area to congregate outside their cells.
c. The cells are relatively small.
[39] The records from the TEDC demonstrate the following:
a. There were 62 days of lockdown. Mr. Steckley was in the stabilization unit for 8 days, during which time he was permitted outside his cell for 2 hours. The majority of lockdowns occurred due to staffing levels.
b. Mr. Steckley was offered yard time on 214 occasions during his stay. That is approximately 39.7% of the time. When he had access to the yard (for about 20 minutes each time), Mr. Steckley exercised by playing basketball, football or doing cardio exercises. These activities relieved his stress. When he did not get such access, he was frustrated, and his feelings of stress increased.
[40] Mr. Steckley described the conditions of his incarceration at the TSDC as follows:
a. When not in lockdown, the inmates were permitted out of their cells between 8:30 a.m. and 1:00 p.m. and 2:00 p.m. to 9:30 p.m.
b. When the unit was not overpopulated, the following was the status quo:
i. there are about 40 inmates on the unit;
ii. there are four phones;
iii. there are two showers; and
iv. there is a common area to congregate outside of their cells.
c. The cells are relatively small.
d. When the unit is not in lockdown, there is access to lawyer visits, public visits and to the showers, phone and yard. At the TSDC, there is access to the yard every day and various programs. The TEDC acknowledges that during lockdown periods, all programs (showers, visits, medical, phone calls, etc.) are provided but under a “more restrictive protocol”.
e. During the time he was at the TSDC, Mr. Steckley says that he was subject to 20 all-day lockdowns and 50 partial lockdowns.[^15] During a significant number of those times, there was limited access to the phone and to the shower.
f. Public visits have been cancelled since March 16, 2020. This was confirmed by the record of the TEDC that visits have been cancelled due to Covid—19. The last time he had a visit with his mother was in January 2020 as opposed to the monthly visits he used to have with her. This has caused Mr. Steckley stress, as he worries about his mother and his family.
g. There has been no programming since March 14, 2020 as well.
[41] Mr. Steckley concluded in his affidavit as follows:
Overall, my time in both detention centres has had a negative effect on my physical and mental well-being. The lockdowns and other conditions … increased tensions among the prisoners in custody which led to more fights. This in turn increased my stress as I always have to be in a constant state of alertness. The worst part of it is that the conditions have made me feel numb, I am used to the conditions even though I believe they are inhumane.
[42] I do find that Mr. Steckley was subject to harsh conditions and that the impact of such conditions was detrimental to Mr. Steckley’s well-being. Neither Mr. Steckley nor any other inmate was responsible for the majority of the lockdowns. They occurred purely as a result of staff shortages. COVID-19 has added stress to the situation inside the institutions.
[43] There is no mathematical equation for time to be credited as compensation for being incarcerated under harsh conditions. It appears that Mr. Steckley spent about one-quarter of his time in lockdown-like conditions in the TEDC and about 69% of his time at the TSDC in lockdown. That, together with the additional hardship caused by the pandemic, above and beyond any hardship caused by the lockdowns, leads me to the conclusion that a further credit of 10 months is warranted.[^16]
[44] Although I may have given less Duncan credit under “normal” conditions, I am persuaded that the credit applied is warranted in these unusual circumstances.
Conclusion
[45] In conclusion, Mr. Steckley is sentenced to a global sentence of 3.5 years (42 months) less the following credits:
a. Summers credit: 32 months; and
b. Duncan credit: 10 months.
As such, Mr. Steckley will not be required to serve any further time in custody. The sentence shall be recorded as follows:
| Count | Offence | Criminal Code Section | Sentence |
|---|---|---|---|
| 10 | Possession of a loaded prohibited firearm while not the holder of an authorization or licence for the firearm with ammunition. | 95(1) | 3 years (36 months), less 3 years’ time served and probation for 12 months. |
| 11 | Possession of a firearm while prohibited from doing so by an order pursuant to s. 109 of the Criminal Code. | 117.01(1) | 6 months consecutive, less time served of 6 months. |
[46] Mr. Steckley will be subject to the following ancillary orders:
(i) an order under s. 109 of the Criminal Code that Mr. Steckley be prohibited from possessing any weapons for life; and
(ii) an order forfeiting the firearm seized.
Kelly J.
Released: June 3, 2020
COURT FILE NO.: CR/19/30000365/0000
DATE: 20200603
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
CamERON Steckley
reasons for SENTENCE
Kelly J.
Released: June 3, 2020
[^1]: 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 [^2]: 2016 ONCA 754 [^3]: Mr. Steckley was advised of his sentence during the sentencing proceeding that was held by teleconference on May 26, 2020. He was advised that I would provide written reasons for sentence. These are those reasons. [^4]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 SCR 773 [^5]: See R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 80 [^6]: 2015 SCC 15, [2015] 1 SCR 773 [^7]: 2015 ONCA 692 [^8]: 2016 ONSC 5025, [2016] O.J. No. 4273 (SCJ) [^9]: 2020 ONSC 1611 [^10]: 2020 ONSC 2365 [^11]: 2020 ONCA 279 [^12]: See R. v. Ferrigon, 2007 16828 (ON SC), [2007] O.J. No. 1883 (S.C.) [^13]: As Wagner J. stated in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18: “It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender”. [^14]: R. v. Duncan, at paras. 6 and 7 [^15]: The records from the TSDC show a fewer number of partial lockdowns. That said, the TSDC has acknowledged previously that their records are not always accurate. This is not a criticism of the institution, simply an observation. [^16]: See R. v. Persad, 2020 ONSC 188; R. v. Inniss, 2017 ONSC 2779; R. v. O.K., 2020 ONCJ 189 and R. v. Abdella (as yet unreported decision of Kozloff J., 2020 ONCJ 1611)