COURT FILE NO.: CRIMJ(P) 1135/18

DATE: 2020 06 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. Mountjoy for the Crown

• and –

JEREMY KANDHAI

N. Sheiban for the defendant

HEARD: January 7, 2020

REASONS FOR SENTENCE

D.E HARRIS J.

[1] Mr. Jeremy Kandhai is up for sentencing upon his guilty pleas to one count of possession of a prohibited firearm with accessible ammunition contrary to Section 95 of the Criminal Code and one count of breach of a Section 109 firearms prohibition order contrary to Section 117.01 of the Code. The defence asks for a total sentence of 3 years while the Crown requests 4 to 5 years but closer to the top end of this range.

[2] Sentence has already been imposed in this case. Submissions were made on sentence on January 7, 2020. After some delays, the matter was put over for sentencing to March 30, 2020. However, I decided at the outset of the COVID-19 crisis to bring this matter forward by two weeks. On March 16, 2020, in brief written reasons, Mr. Kandhai, having served 30 months pre-trial custody, was given a time-served sentence: see R. v. Kandhai, 2020 ONSC 1611. Those reasons were primarily for the purpose of explaining the urgency of the matter. The COVID-19 pandemic was bearing down on all of us and Mr. Kandhai was, in my view, in a time-served position upon sentence. In addition, with the courtrooms shuttering in the next few days, there were logistical issues to consider. These are the fuller reasons alluded to at that time explaining the sentence that was imposed.

[3] The main issue argued at the sentencing hearing was the impact of Mr. Kandhai’s history of growing up in poverty in Flemingdon Park and his subjection to anti-black racism. A detailed social history report was prepared by Michelle Richards MSW RSW to explore Mr. Kandhai’s life. A pre-sentence report was also put before the court. Counsel relied heavily upon the spirit if not the letter of Justice’s Nakatsura’s judgments in R. v. Morris 2018 ONSC 5186, 422 C.R.R. (2d) 154 (currently under appeal by the Crown) and in R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136. Those judgments have served the important purpose of urging the courts to re-examine the chronic overincarceration of African Canadians in Canada.

THE OFFENCE AND MR. KANDHAI’S CRIMINAL RECORD

[4] Peel Regional Police officers shortly after 7:00 p.m. the evening of September 9, 2017 investigated a parked car in a lot in Mississauga. They asked the occupant of the car to exit, as they believed that they had observed drugs. The suspect got out but abruptly ran from the scene. The officers were unable to catch him. They roamed the vicinity in their squad car looking for him but with no success. When the officers came back to the parking lot about 20 minutes later, Mr. Kandhai and two women were standing beside the same car. As the investigating officer stepped out of her marked cruiser to ask whether they had seen the suspect, Mr. Kandhai took flight. As he was running, he dropped a gun on the sidewalk. Another officer pursued Mr. Kandhai and arrested him nearby.

[5] The gun was a semi-automatic .40 caliber Glock. This firearm is a prohibited weapon. About a metre away in the grass, a fully loaded magazine for the gun was found.

[6] At the time, Mr. Kandhai was bound by a Section 109 firearms prohibition order made the previous year. Possession of the gun constituted a violation of this order under 117.01 of the Criminal Code. He was also on probation.

[7] Mr. Kandhai has a long criminal record for a young man. In terms of his youth record, in December of 2010, at the age of 16, he was found guilty of failing to comply with bail. The next year he was convicted, again as a youth, of forcible entry, possession of a Schedule 1 substance and fail to comply with bail. His first jail sentence was in 2011 when he was convicted of robbery and fail to comply with bail. He received 2 months and 1 month supervision in the community.

[8] Mr. Kandhai’s last entries as a youth were fail to comply with a youth disposition, possession of property obtained by crime over $5000, obstruct peace officer, fail to comply with bail and fail to attend court. He received a sentence of time served, 30 days. A firearms prohibition order under Section 109 was made against him.

[9] Mr. Kandhai was convicted as an adult in 2016. The offences were possession of a weapon dangerous to the public peace, fail to comply with bail and possession of a gun contrary to a prohibition order. He was in pre-trial custody for approximately 11 months and was credited with a total of 511 days. The sentence imposed was a fine and probation for 18 months. He received a second Section 109 firearms prohibition order.

THE OFFENDER

[10] Jeremy Kandhai is 25 years old now, having been born September 9, 1994. He was arrested for the present offences when he was 23 years old.

[11] The social history report was based on four meetings with the accused and numerous interviews with his parents and brother. It identifies two key circumstances in Mr. Kandhai’s life. First, he grew up in low income, subsidized housing in Regent Park and then in Flemingdon Park. Second, he has been exposed to anti-black racism from a relatively young age.

[12] Camille Stephenson is Jeremy’s mother. She gave birth to him when she was 23 years old. At the time she was living in Regent Park with her other son from a previous relationship. Jeremy’s father, Dave Kandhai, lived in a separate residence nearby. The two parents were in a relationship and would spend weekends together as a family. The relationship between the two ended when Jeremy was approximately 9 or 10 years old. Jeremy agreed with his parents that he had a positive childhood.

[13] Jeremy recalled that when he was in elementary and middle school some of his non-black peers went home in one direction towards nice detached homes and he and his group of friends returned to “the hood.”

[14] His mother moved from Regent Park to Flemingdon Park when he was about 3 years old. In Regent Park, Ms. Stephenson had witnessed drug dealing right outside of her front door. The family was hoping that Flemingdon Park would be a safe haven but in fact it suffered from similar issues. Once their apartment was broken into and their television and gaming console were stolen. Deadbolts were installed on the doors and windows. Later, a next-door neighbour’s home was shot up by stray bullets.

[15] Jeremy’s father recalled he begged Ms. Stephenson to move out of the area once their son started getting into conflict with the law. Ms. Stephenson however reported that her finances did not allow her to move elsewhere. She was on social assistance and lived in subsidized housing.

[16] Jeremy went to Gateway Public School in Flemingdon Park. He was diagnosed at the end of middle school with a learning disability. He and his brother were placed into individual education plans (IEP) and streamed into basic classes. The social history author notes that the practice of streaming where students are placed in grades that are lower than their academic ability has been documented as a crisis in education which disproportionately impacts the lives of black children.

[17] Jeremy began secondary school at Danforth Technical Institute. Once again he was in basic level classes. His mother successfully advocated for him and his brother to return to general level classes.

[18] Jeremy reported that his social environment greatly influenced his behaviour. Mr. Kandhai’s peer group consisted of other black youth as students formed social connections based on their racial identity. As a result of hanging out with his new peer group, within the first few months of secondary school, he was selling drugs and skipping school. Jeremy said he was engaged in crime for financial gain to compensate for strained financial circumstances. Jeremy reported that he wanted to live in a nice home with a driveway but the jobs available to him would not provide the financial means to achieve his dream.

[19] Jeremy and his mother and brother confirmed that his poor choices at the start of secondary school influenced his trajectory into the criminal justice system. He lost focus and started keeping company with friends who sold drugs. His more positive relationships ended as his negative peer influences became more prominent.

[20] The financial benefit of selling drugs was a strong lure for a young man living in Flemingdon Park. He was able to buy clothing and fit in. Jeremy believes that his life would have taken a different path had he not lived in a “priority” neighbourhood. He became close to people who dealt drugs as it was considered a way of coping with financial strain. He said that 75% of his friends went down the same path.

[21] He was criminally charged for the first time in his life in 2010, soon after starting secondary school. The offence was robbery. He was eventually kicked out of the school either for fighting or for poor attendance, it is not clear. His principal wrote a nasty letter according to Jeremy’s father. This letter followed him to the next school.

[22] Jeremy went to live with his father who acted as his surety. He was arrested again six months later for breaching his bail and he returned to his mother’s home. Alternative schools were subsequently tried but were unsuccessful. Attempts to finish school were interrupted by his conflicts with the law.

[23] Later on, Jeremy attended George Brown College and completed a music vibrations course. He enjoyed the class because he loves music. He obtained the credits to graduate high school in 2014 which he is proud of. According to him, he is the only one in his former peer group to complete high school.

[24] The experience he disliked the most about his childhood was the constant police presence and harassment. Jeremy said that the first experience of being racially profiled occurred when he was about 10 or 11 years old. He was walking with friends when the police stopped them and searched him for no reason. Ms. Stephenson witnessed the encounter as she was driving by at the time. This was the first of Mr. Kandhai’s frequent experiences of police harassment by the Toronto anti-violence intervention strategy (TAVIS).

[25] Mr. Kandhai’s brother Christopher Porter also says they were both stopped and searched plenty of times for no reason. Whites were not searched nor were better dressed black people. He could not recall the police ever being helpful to anyone and in his view they did not care about black people. The author notes that the experiences that upset Jeremy and his brother are consistent with the experience of racial profiling of black people and other racialized groups.

[26] Jeremy has had some employment over the years. He worked at the Toronto Public Library system when he started secondary school. He left the job after six months because he saw his friends playing and having fun and wanted to join them.

[27] At one point he worked at Jack Astor’s restaurant for about one and a half years but quit when his hours were reduced. He also worked as a full-time door-to-door salesman and found a job in a factory. His father reported that Jeremy was hard-working when he was employed. He was productive as long as he stayed away from negative peer influences.

[28] Jeremy has been smoking marijuana since he was young. His father has said that he saw his behaviour change when he started smoking and he believes that it is a negative influence. Jeremy does not believe he has an issue with the overuse of marijuana and will not cease using it.

[29] Jerry’s father said that Jeremy is a good cook and obtained a certificate when he participated in a food share program. He prepared a meal for then Premier Wynne. He also learned how to upholster furniture from working with his father.

[30] Jeremy’s father expressed disappointment in his son’s criminal involvement. He has not been in contact with him during his present incarceration. He strongly believes that if he grew up anywhere but Flemingdon Park, Jeremy would have made more positive life choices. In my view, it is much to be regretted that his father has abandoned him during the time he needed his support the most.

[31] The author of the report states that Jeremy was engaging and self-aware. He took accountability for his actions. He is aware that he has lost years of his life for nothing.

[32] From Jeremy’s perspective, being a man entails holding people accountable for the harm they inflict. He possessed a gun out of fear and pride. After being robbed at gunpoint for a gaming system and a small amount of cash, Jeremy made the decision four months later to obtain a gun. He was hurt and scared by the fact that he had been robbed by a person who had been a friend most of his life.

[33] His fear of being victimized together with the violent deaths of people around him were a factor in arming himself. He did not intend to use the gun; it made him feel safe. He now sees that nothing productive came from this decision.

[34] Jeremy expressed remorse for his actions and does not seek to make excuses. He too believes that if his mother had moved out of Flemingdon Park earlier he would have escaped racial profiling and negative peer groups.

I. the ARGUMENTS BASED ON mR. kANDHAI’S BACKGROUND

A. Anti-Black Racism and Overincarceration

[35] The principal argument for a reduction of the sentence normally imposed for these crimes is premised on Mr. Kandhai having a lower degree of responsibility as a result of the poverty, discrimination and anti-black racism he has endured over his lifetime. As will become evident, the Supreme Court has provided invaluable guidance in this area, albeit in the context of Aboriginal offenders. Some initial comments with respect to racism and the overincarceration of African Canadians are first necessary before delving into the argument.

[36] The cases recognizing the prevalence and perniciousness of anti-black racism in the judicial system are legion, starting with R v Parks, (1993) 1993 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.), at para. 54 and continuing on: see R. v. R.D.S., 1997 324 (SCC), [1997] 3 S.C.R. 484, at para. 47; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 (C.A.), at para. 9; R. v. Spence, 2005 SCC 7, [2005] 3 S.C.R. 458 at para. 5 and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 154, to name a few. The most recent statement is from the Supreme Court in R. v. Le 2019 SCC 34 at paras. 89-97.

[37] Anti-black racism is a well-documented, profoundly disturbing feature of our society. We need go no further than the statement of the Court of Appeal almost thirty-years ago in Parks. It is so well-established that any reasonable person must accept its existence.

[38] A recent, poignant illustration in our jurisdiction is the findings of the Review of the Peel District School Board (February 28, 2020) commissioned by the Minister of Education. Systemic anti-black racism permeates the Peel District School Board--its student disciplinary process (in which black students are grossly overrepresented), its programming in which teachers perpetuate racial stereotypes, its lack of a racially diverse curriculum representative of community multiculturalism, and the sad fact that discriminatory comments and conduct from students, teachers and staff are commonplace.

[39] The idea that school children being taught the skills and knowledge which will carry them through their lives are poisoned with the venom of racism is unpardonable. It throws into stark relief the problem of anti-black racism in our society.

[40] In light of the prevalence of anti-black prejudice, it ought to come as no surprise that it is also an established fact that African Canadians are overrepresented in the criminal justice system and in the jails: Morris, Appendix A, Expert Report on Crime, Criminal Justice and the Experience of Black Canadians by Owusu-Bempah, Sibblis and James (2018); R. v. Golden at para. 83; R. v. Elvira, 2018 ONSC 7008, [2018] O.J. No. 6185 at para. 22; R. v. Williams, 2018 ONSC 5409, 151 W.C.B. (2d) 126 at paras. 45-47; R. v. Reid, 2016 ONSC 8210, [2016] O.J. No. 2696 at paras. 23-26

[41] The issue of overrepresentation of indigenous offenders was discussed in detail in R. v. Ipeelee 2012 SCC 13. There is good reason not to blindly analogize between the plight of indigenous offenders and African Canadian offenders. There are fundamental historical differences which set their treatment within Canada and in the system of criminal justice apart: see Jackson at paras. 57-58. Furthermore, aboriginal offenders are specifically mentioned in Section 718.2(e) of the Criminal Code, the provision commanding that incarceration must be used with restraint. Nonetheless, it is true that both aboriginal offenders and African Canadian offenders are overincarcerated. The reasons differ but the fact remains the same. Important guidance, viewed with appropriate caution, can be derived from the Supreme Court’s statements with respect to the overincarceration of indigenous offenders.

[42] The Supreme Court in Ipeelee did not shy away from the fact of the overincarceration of indigenous offenders. The court first quoted from the requirement to exercise restraint before sentencing offenders to jail as provided in Section 718.2(e) of the Criminal Code. This provision states:

[A]ll available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[43] Justice LeBel for the Supreme Court suggested that there was no direct judicial remedy for the overincarceration of Aboriginal offenders. He stated that the evidence suggested both that Aboriginal offenders commit a disproportionate number of crimes and are victims of a discriminatory justice system. Elsewhere in the judgment he concluded that Aboriginal people are also discriminated against in society at large. Justice LeBel pointed out that a judge, in attempting to reduce overincarceration, must be sensitive and responsive to socioeconomic factors such as employment status, level of education, and family situation. In addition, rehabilitation should be given renewed importance in the sentencing matrix (Ipeelee at paras. 65-69).

[44] The same can be said of African Canadian overrepresentation in jails. It is obvious that at its root, like aboriginal discrimination, anti-black racism and poverty is first and foremost a societal problem. The case law cited above demonstrates, as does even the most casual socio-economic awareness, that it is of major proportions. The enormity of the problem and its urgency is daunting. The judiciary, in its mandate to ensure social justice, must call out discrimination in all its many guises and ensure that it does not escape inclusion in reducing an offender’s moral blameworthiness.

[45] However, it is wrong to suggest that there ought to be an automatic reduction in sentence if the offender is a member of a group historically victimized by discrimination. In the area of sentencing, the judiciary is confronted with the aftermath wreckage of a particular crime: the injury and grief of the victims, the loss to the community and the impact on the offender. The role of the judiciary is primarily reactive. The tools available in sentencing are unidimensional. Deductions for overrepresentation are not a sound policy and are inharmonious with established sentencing principles. Deductions of this kind would be contrary to individualization, a bedrock sentencing principle: see R. v. Pham 2013 SCC 15, [2013] 1 S.C.R. 739 at paras. 6-9; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 43.

[46] The idea of a blanket reduction was put to bed in R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 at paras. 86, 88 and in Ipeelee at paragraph 71 where it was held that Section 718.2(e) is not a call to affirmative action or an invitation to enforce reverse discrimination. In Justice LeBel’s lengthy discussion of overrepresentation in Ipeelee referred to above, he never suggested that automatic reductions to directly combat the problem were appropriate.

[47] Concentrating on systemic factors and rehabilitation is of key importance. Most importantly, as suggested by the Supreme Court, the issue of systemic discrimination bears most directly on the offender’s degree of responsibility and moral blameworthiness. That is where attention must turn.

B. What is the role of moral responsibility in sentencing MR. KANDHAI?

I. THE NECESSARY LINK BETWEEN AN OFFENDER’S ANTECEDENTS AND MORAL BLAMEWORTHINESS

[48] An implicit part of the argument made here is that there exists a sufficient relationship between Mr. Kandhai’s antecedents and his commission of the offence, possession of the handgun, that the resulting sentence should be impacted. The question is, what is the nature of the relationship required between the offender’s background and the offence?

[49] There was a discussion in R. v. Hamilton and Mason, (2004) 2004 5549 (ON CA), 72 O.R. (3d) 1 (Ont. C.A.) at paras. 133-142 focusing on the necessary connection between an offender’s circumstances and the commission of the offence (also see R. v. Graham, 2018 ONSC 6817, [2018] O.J. No. 5993 at para. 29). Justice Doherty stressed that economic circumstances helped to explain why the offenders made the poor choice to import drugs that they did. Racial and gender bias were part of the “causal soup” leading to the commission of the crime (paragraph 140).

[50] The Supreme Court in Ipeelee waded into the issue a number of years after Hamilton. Justice LeBel said that the pertinent question is not causation but rather a question of context:

81 … some cases erroneously suggest that an offender must establish a causal link between background factors and the commission of the current offence before being entitled to have those matters considered by the sentencing judge.

83 As the Ontario Court of Appeal goes on to note in Collins, it would be extremely difficult for an Aboriginal offender to ever establish a direct causal link between his circumstances and his offending. The interconnections are simply too complex. The Aboriginal Justice Inquiry of Manitoba describes the issue, at p. 86:

Cultural oppression, social inequality, the loss of self-government and systemic discrimination, which are the legacy of the Canadian government’s treatment of Aboriginal people, are intertwined and interdependent factors, and in very few cases is it possible to draw a simple and direct correlation between any one of them and the events which lead an individual Aboriginal person to commit a crime or to become incarcerated.

Furthermore, the operation of s. 718.2(e) does not logically require such a connection. Systemic and background factors do not operate as an excuse or justification for the criminal conduct. Rather, they provide the necessary context to enable a judge to determine an appropriate sentence.

(Emphasis Added)

[51] Justice LeBel, just before this passage, at paragraph 77, stated that background and systemic factors apply to non-aboriginal offenders as well as aboriginal offenders:

.. there is nothing in the Gladue decision which would indicate that background and systemic factors should not also be taken into account for other, non-Aboriginal offenders. Quite the opposite. Cory and Iacobucci JJ. specifically state, at para. 69, in Gladue, that "background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender".

[52] As Section 718.2(e) applies to all offenders, so too should the contextual approach enunciated at paragraphs 81-83 of Ipeelee apply to all offenders. Of course the context is vastly different for aboriginal offenders than it is for African Canadian offenders. But what the Supreme Court was formulating was a general philosophy to govern the influence of historical and systemic conditions on criminality. The methodology is entirely independent of the group discriminated against or the particulars of the discrimination. It would be incongruous and illogical to say that the contextual approach in Ipeelee only applies to aboriginal offenders.

[53] In the final analysis, while Section 724(3)(b) of the Code requires that mitigating circumstances be proved by a defendant on a balance of probabilities, it is not causation which must be shown. Causation in the substantive criminal law is a very specific concept. In a murder case for example, causation asks whether the defendant’s acts caused the victim’s death. The criminal law causation standard requires that the act be a “significant contributing cause” of the consequence, the death: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at para. 72; R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30 at para. 20. There must exist a close proximity between the two.

[54] The idea that a person’s background of discrimination and disadvantage and its relationship to the offence can be evaluated on the same causal standard is a fallacy. The relationship between an act and a consequence is analytically distinct from the relationship between a person’s background and the act they commit. In the context of the latter, the influences on an individual are too remote, diverse and multifarious to expect a cause and effect relationship to be provable in evidence. Rather, the sum total of influences upon an individual, including poverty and racial bias, has helped “form the person who committed the crime”: see R. v. Gabriel, 2017 NSSC 90 (N.S.S.C.) at paras. 52-54.

[55] Furthermore, in concluding that a causal relationship is inapplicable, it is noteworthy that the purposes of the substantive criminal law and the parameters and purposes of the sentencing process are fundamentally different. For this reason, the Supreme Court has held that in sentencing, the rules of proof at trial are substantially relaxed: R. v. Albright, 1987 26 (SCC), [1987] 2 S.C.R. 383 at paras. 22-23. This too explains why an approach requiring proximate causation is erroneous in the sentencing realm.

[56] There are a significant number of authorities following Ipeelee and applying a contextual as opposed to a causal approach, albeit all in the area of sentencing aboriginal offenders: R. v. Kreko, 2016 ONCA 367, [2016] O.J. No. 2552 at paras. 21-24; R. v. F.L., 2018 ONCA, 2018 ONCA 83, [2018] O.J. No. 482, at para. 46; R. v. Joe, 2017 YKCA 13, [2017] B.C.W.L.D. 5146 at paras. 77-86; R. v. Whitehead, 2016 SKCA 165, [2017] 5 W.W.R. 222 at para. 49, R. v. Slippery 2015 SKCA 149, [2015] S.J. No. 712 at para. 46; R. v. Sunshine, 2014 BCCA 318, [2014] B.C.W.L.D. 5417 at para. 63.

[57] The process of reasoning and the impact on moral blameworthiness is, philosophically, in the same general category whether it be an Aboriginal offender or an African Canadian offender. As Justice Lebel held in Ipeelee, a causal approach is a misconceived threshold and has the effect of immunizing the effects of discrimination and racism from the crafting of a sentence sensitive to the history of the offender.

[58] I conclude that, following Ipeelee. the question of the impact of past discrimination and disadvantage ought to be viewed as a matter of context, not one requiring proof of direct causation.

C. THE QUESTION OF MORAL RESPONSIBILITY

[59] The fundamental principle of sentencing set out in the Criminal Code is proportionality with the offence and the offender:

Fundamental principle

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

[60] Again, the decision in Ipeelee lights the way on the issue of the responsibility of the offender and the pertinence of individual history. Justice LeBel wrote at para. 73:

… systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. This is perhaps more evident in Wells where Iacobucci J. described these circumstances as "the unique systemic or background factors that are mitigating in nature in that they may have played a part in the aboriginal offender's conduct" (para. 38)

[61] Considering first the circumstances in which Mr. Kandhai grew up, it is easy to be skeptical of an argument requesting a reduction of sentence premised on an offender’s antecedents. It is tempting to dismiss the arguments based on the offender’s background as “soft” and as an attempt to obtain a lenient sentence with idle excuses. Our system puts a high value on individual responsibility premised on a supposition of free will; we reject determinism. There are deep historical and cultural roots that underlie this philosophy.

[62] But at bottom, there is no doubt that from the time of his birth, Mr. Kandhai’s prospects were limited by poverty and anti-black racism. This was not simply the usual vicissitudes and general unfairness of life. It was systemic and structural.

[63] Presented with less than his fair share of opportunity, Mr .Kandhai chose to fall into a lifestyle of crime. It is important to recognize that he lived in a community with others who suffered the same discrimination as he did. Mr. Kandhai told the social history author that 75% of his peers had gone into crime. Hopefully, this is an exaggeration but it may well not be. Whatever the precise numbers, many of his peers have gone the same way. It cannot be legitimately argued that all those men were inherently “bad” as opposed to being detrimentally affected by their environment and context.

[64] Not all his peers went into crime, however. Some resisted the temptation. I would summarize the situation this way: Mr. Kandhai was not compelled to make the choice he did but his alternatives were circumscribed by his environment and the dearth of opportunities that were open to him: see Elvira at para. 26.

[65] I accept that, in addition to his other disadvantages, Mr. Kandhai has been subjected to anti-black racism beginning in his early adolescence. Several of my colleagues have taken this as a given: see e.g. Elvira and Williams. It was also noted by the Supreme Court in Golden at para. 83. The recent judgment of the Supreme Court of Canada in Le has now forged a breakthrough with respect to recognizing the historical unfairness and injustice in the way African Canadians have been treated by the police. The majority of the Supreme Court, after reviewing the social science, legal authorities and research, concluded:

97 We do not hesitate to find that, even without these most recent reports, we have arrived at a place where the research now shows disproportionate policing of racialized and low-income communities (see D. M. Tanovich, “Applying the Racial Profiling Correspondence Test” (2017), 64 C.L.Q. 359). ). Indeed, it is in this larger social context that the police entry into the backyard and questioning of Mr. Le and his friends must be approached. It was another example of a common and shared experience of racialized young men: being frequently targeted, stopped, and subjected to pointed and familiar questions…

[66] Mr. Khandai told the social history author about his own early, detrimental experiences with the police in Flemingdon Park. There is no reason to doubt his veracity. It is bolstered by the experience of other African Canadians and the binding authority of the Supreme Court.

[67] The attitude of those in authority must have been profoundly dispiriting and destructive for Mr. Kandhai. The judgment in Le and its reliance on the Tulloch Report, summarizes the pernicious psychological effects of improper police stops and investigations. Justice Nakatsura in Jackson at paragraph 132 quotes from The Review of the Roots of Youth Violence (Toronto: Queen's Printer for Ontario, 2008), Vol. 1, page 42) by the Honourable Roy McMurtry and Dr. Alvin Curling about the corrosive effect of racism:

Racism strikes at the core of self-identity, eats away the heart and casts a shadow on the soul. It is cruel and hurtful and alienating. It makes real all doubts about getting a fair chance in this society. Whether seen as a barrier or a hurdle, it is a serious obstacle imposed for a reason the victim has no control over, and can do nothing about.

[68] We arrived some time ago at a place where there is now an appreciation and understanding that there are systemic factors influencing the commission of crime. This awareness has the ancillary benefit of paving the way towards social change to expose and ameliorate the root causes of gangs and guns. This has become an urgent imperative in the Greater Toronto Area as guns and gang violence have been increasing for a number of years.

[69] It must be emphasized that this is not based on a generalized conclusion that African Canadians are not fairly treated in the criminal justice system. While that is true as a general proposition, sentencing is an individualized process. Broad conclusions and a rigid, mechanistic approach should be avoided. It remains the case that simply being a member of a disadvantaged group is not enough: see Hamilton, para. 133. In this instance, the social history report was of great assistance in gaining insight into Mr. Kandhai and others in a similar position. It took the general and distilled it into the specific: see R. v. Bennett, [2003] O.J. No. 3218 (Ont. S.C.) at paragraph 45.

[70] Applying Mr. Kandhai antecedents to the contextual approach established in Ipeelee, one’s head would have to be in the sand not to acknowledge that Mr. Kandhai’s responsibility is affected in some measure by the racism and poverty in the community in which he grew up. The more difficult task is to quantify the effect attributable to this factor. Because it is a matter of context, it is not easy to find a good foothold in order to evaluate the precise impact on his responsibility. One thing that can be said definitively is that Mr. Kandhai’s circumstances do not erase personal responsibility or push it to the background. Nor, however, are Mr. Kandhai’s circumstances irrelevant or of only nominal significance.

[71] Mr. Kandhai’s moral responsibility must also be weighed in light of the gravity of the offence. Proportionality in Section 718.1 involves not only the offender’s “degree of moral responsibility” but also the “gravity of the offence.”

[72] Needless to say, this offence was serious. The potential for human carnage represented by a loaded handgun is extreme. The authorities stressing this abound: see e.g. my previous judgment in R. v. Kawal, 2018 ONSC 7531 at paras. 13-16; R. v. Graham, at para. 36; R. v. Brown, 2009 ONCA 563, [2009] O.J. No. 2908, at paras. 29-33, affirming [2007] O.J. No. 5659 (S.C.); R. v. Nur 2015 SCC 15, per Chief Justice McLachlin, at para. 1, see also Justice Moldaver in dissent, at para. 131 and Justice Watt, as he then was, in R. v. Gayle, [1996] O.J. No. 3020 (S.C.), at para. 28; R. v. Williams at paras. 33-41. Everything should and must be done to stop the proliferation of illegal guns whose purpose is to maim and kill other human beings.

[73] Mr. Kandhai told the social history author that he had the gun as protection because he had been robbed at gun point by a childhood friend. I should not be taken as finding this a mitigating factor on sentence. The defence has a legal burden to establish mitigating factors: see Section 724(3)(b) of the Criminal Code. An accused facing sentence has a powerful motive to prevaricate to benefit himself. Self-interest this powerful can present a major impediment to a finding of remorse or offence mitigation. Furthermore, having a gun for “protection” is little solace to the public. If the idea is that the offender will use the handgun in a “responsible” way for self-protection only, this premise is, needless to say, thoroughly unpersuasive.

[74] In the end, Mr. Kandhai himself understands that it was not necessary to arm himself with a loaded handgun. It was a poor choice; a decision he was not compelled to make.

[75] I do agree, however, that the gun was not wielded to facilitate another criminal offence, such as robbery or drug dealing. That is not a mitigating factor. It is simply the proper and accurate characterization of the offence. This factor is recognized in the jurisprudence: see e.g. Graham, at para. 38.

[76] The offences Mr. Kandhai has plead guilty to are not so serious that his history is relegated to non-importance. In this case, to properly gauge Mr. Kandhai’s responsibility for possession of the gun and breaching his firearm prohibition order, his history gives much needed context to his offences.

[77] In my view, disregarding Mr. Kandhai’s history of poverty and anti-black racism as a factor on sentence would be an error in principle on this record. In terms of the difficult question of the weight to be attributed to this factor, a trial judge has a wide discretion generally in the imposition of sentence, a particularly subjective and personal exercise of the judicial function: R. v. Friesen, 2020 SCC 9, 2020 CSC 9 at paras. 25-26; R. c. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 39-41. In the exercise of my discretion, Mr. Kandhai’s history and circumstances are of significant weight in formulating a proportionate sentence.

II. THE OTHER PERTINENT SENTENCING PRINCIPLES

Deterrence, Denunciation and Rehabilitation

[78] It is well established that denunciation and deterrence are the paramount sentencing principles for these offences: Graham at para. 37. Possession of an illegal handgun is the kind of offence for which general deterrence works, at least to some extent. It is an offence that can only be committed by deliberate conduct. A deal must be struck with a gun dealer, money must be paid, the transaction of money for a gun must be consummated.

[79] Buying and possessing a gun is a carefully calculated choice. If the buyer knows that if he is caught, he will be facing a substantial sentence, some potential buyers will think twice. At the same time, this should be balanced against the fact that an increase in sentence may not significantly increase the deterrent effect: R. v. Hess; R. v. Nguyen 1990 89 (SCC), [1990] S.C.J. No. 91, [1990] 2 S.C.R. 906 at paras. 24-27 per Wilson J.

[80] Deterrence should be analyzed rigorously. A jail sentence should not rest on a legal fiction. In this instance, deterrence is real; it has efficacy. Denunciation is also exceedingly important. Possession of illegal guns, guns which are only to be used to commit criminal offences and to threaten, injure and kill, is an affront and a threat to our most fundamental values.

[81] Moving from deterrence and denunciation to rehabilitation, in my view, the prospect of Mr. Kandhai being rehabilitated is better than this offence or his criminal record would indicate. He is still a young man. He finished high school despite numerous challenges, internal and external. He has some good employment experience. Together with the family support he enjoys, all is not lost for Mr. Kandhai.

[82] The escalation of his crimes and the concomitant sentences will surely demonstrate to him that he is now at a crossroads. With his past record and these convictions, the continuation of serious criminal offences will lead to much higher sentences. Hopefully, Mr. Kandhai will now seize on his significant rehabilitative potential. But success is far from guaranteed.

The Mitigating Effect of the Guilty Pleas

[83] It is appropriate that a case-sensitive approach be taken to the mitigating effect of guilty pleas: see R. v. Lacasse at para. 81; R. v. O. (C.), (2008) 2008 ONCA 518, 91 O.R. (3d) 528 (Ont. C.A.), at paras. 46-47. The guilty pleas are due significant mitigation in this case.

[84] The rationale for giving credit for a plea of guilty is based on two considerations: 1. As a sign of remorse; and 2. As a recognition of the offender saving time and resources: R. v. Johnston and Tremayne, 1970 281 (ON CA), [1970] 2 O.R. 780, [1970] 4 C.C.C. 64, [1970] O.J. No. 1489 (C.A.), at para. 9; R. v. de Haan, [1967] 3 All E.R. 618.

[85] It is at times difficult to find that a guilty plea is a true sign of remorse. Remorse is a finding of fact. In this case, as mentioned, the plea was mainly a response to the virtual certainty that running a trial would be futile. The guilty pleas ought not to reduce the sentence significantly in this case as evidence of remorse.

[86] The second rationale, credit for saving valuable resources, is an extremely urgent and important consideration here in time and resource strapped Peel. The Supreme Court said thirty years ago that Central West was, in terms of delay, the “worst district … north of the Rio Grande.” R. v. Askov et al., 1990 45 (SCC), [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 at para. 125. While things might have improved to some degree, there is still much work to be done. The delays are still clearly unacceptable.[^1]

[87] In the Supreme Court’s sentencing decision in Lacasse much was made of the importance of a trial judge being responsive to local conditions (see paras. 87-105). Lacasse focused on the frequency of a particular offence in the locality as a potential aggravating factor. But the perspective of a sentencing judge should not be restricted to this subject alone. The court at paragraph 89 quoted with approval a statement of Chief Justice Lamer in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 where he said at para. 91:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. [Emphasis in Original]

[88] Reducing a sentence because the offender has pled guilty and saved court time ought to be premised to some extent on local conditions. In some circumstances, a guilty plea may not make a major difference in the court or resource backlog. But in other jurisdictions, like in Peel, it can be of great importance. This local conditions approach measuring the specific importance of a guilty plea in each case directly counters the “culture of complacency” which threatens to grind the trial courts to a halt: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40.

[89] The Crown and defence agree that the guilty plea in this case should be deemed an early plea even though it was entered after the preliminary hearing. It was only at this point that Mr. Kandhai was shown a surveillance video which substantiated his guilt. He responded by pleading guilty soon afterwards.

[90] I estimate that a jury trial in this matter would have been approximately two weeks long. In the circumstances, a guilty plea, even though a jury trial may well have been an exercise in futility, is of substantial mitigating force.

[91] While there may be objections to the utilitarianism of this approach, this is not the time or place for misplaced notions of ideological purity. Criminal justice, like other walks of life, must wrestle with realities, not a fantasy of what the world ought to be. In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204 at para. 40, Justice Moldaver considered sentencing joint submissions but what he wrote applies to guilty pleas as well:

40 … guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weight.

The Assault in Prison

[92] Mr. Kandhai was assaulted on February 19, 2020 at the Toronto East Detention Centre by several inmates. He suffered significant injuries. The assault was caught on videotape in the jail. It could be said that the assault upon him was provoked as he appears to assault or threaten another inmate just prior to being attacked. In any case, clearly the onslaught following was completely unjustified. I take this assault upon him into account in crafting an appropriate sentence.

Regular Credit and Enhanced Credit for Pre-trial Custody

[93] Mr. Kandhai was in pre-trial custody for 30 months, with regular Summers credit adding an additional 15 months to what Mr. Kandhai has served, for a total of 45 months. In addition, by reason of lockdowns at the Toronto South Detention Centre and the Maplehurst Correctional Complex, the defence says that in just over 20% of the days for which reports are available there were lockdowns or partial lockdowns. That amounts to 132 days. I agree with Justice Schreck’s observations that the shockingly poor jail conditions which lead to enhanced credit are deplorable and must be rectified: R. v. Persad, 2020 ONSC 188.

[94] I would credit approximately an extra day for each of those lockdown days, for a total credit of 4 months. In summary, the total time served, with all credit added, is 49 months.

Sentencing Calculation

[95] The general range suggested by the authorities for a first time Section 95 firearms offence is three to five years: Graham at para. 38; Elvira at para. 27; R. v. Mansingh, 2017 ONCA 68 (Ont. C.A.), at paras. 21-24; R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.), at paras. 128-129; R. v. Carrol, 2014 ONSC 2063 (Ont. S.C.J.), at paras. 21-28.

[96] Mr. Kandhai is a first time Section 95 offender but has a previous gun conviction. This conviction is for possession of a weapon dangerous to the public peace. The presentence report with reference to that offence indicates that the weapon was a gun but I was given no other information about it. If this had been a second Section 95 offence, the authorities indicate a much higher sentencing range, 6 to 9 years: Graham at para. 39. Nonetheless, this is a major aggravating feature on sentence as is the current breach of his firearms prohibition order, his second such breach.

[97] I agree with Justice Code and others who have held that breach of a Section 109 firearms prohibition order ought in theory and practice to result in a sentence consecutive to the Section 95 offence: Graham para. 41; Williams, at para. 39; R. v. Browne, 2014 ONSC 4217, [2014] O.J. No. 3370 at paras. 28-29; R. v. James, 2011 ONSC 241, [2011] O.J. No. 385 at para. 31. Without a consecutive sentence, the force of deterrence and denunciation with respect to breach of the order would be virtually erased.

[98] Apportioning the 49 month total which includes all credit due, I would attribute 38 months to the firearms offence. In all the circumstances of the offender and the offence, this is towards the bottom of the appropriate range though not at the very bottom of the range. It reflects the seriousness of the offence, Mr. Kandhai’s past criminal record including the previous gun offence, the fact his moral blameworthiness is to a significant degree tempered by the conditions of poverty and anti-black racism he has grown up with, the mitigation of the guilty pleas, and the assault in prison. In terms of the priority of these factors, the gravity of the offence must assume primary importance. Moral blameworthiness, properly contextualized, leads to a measurable reduction in Mr. Kandhai’s degree of responsibility. This reduction is of a magnitude to take the sentence towards the bottom of the applicable range for a second gun possession offence, but not so extraordinary in the circumstances here as to take it below the range itself: see Laccase, paras. 58-60.

[99] This being his second Section 117.01 offence, a substantial sentence is necessary. I would sentence Mr. Kandhai to 11 months consecutive for the firearms prohibition breach.

[100] In terms of the pre-trial custody of 30 months, maintaining this same proportion, it should be broken down as 23 months attributable to the gun conviction and 7 months consecutive for the breach. As “time-served” is not in itself a legal sentence, I would add to my previous endorsement a nominal fine of $20 with 12 months to pay: R. v. Guidolin, 2011 ONCA 264, 2011 O.J. No. 1649 at para. 38. There will be a lifetime Section 109 order to go and a DNA databank order.

D.E HARRIS J.

Released: June 9, 2020

COURT FILE NO.: CRIMJ(P) 1135/18

DATE: 2020 06 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. JEREMY KANDHAI

BEFORE: D.E. Harris

COUNSEL: A. Mountjoy, for the Crown

N. Sheiban, for Mr. Kandhai

REASONS FOR SENTENCE

D.E. Harris J.

Released: June 9, 2020

[^1]: See Regional Senior Justice P. Daley’s remarks about the chronic delays in Brampton. Cases are still being sent to outlying jurisdictions because of lack of court space: The Globe and Mail, February 19, 2018:https://www.theglobeandmail.com/canada/article-brampton-ont-judge-denounces-ontario-government-over-lack-of/