Court File and Parties

Court File No.: CR-18-40000271 Date Released: 2020-09-25

Ontario Superior Court of Justice

Between:

Her Majesty the Queen – and – McKingsford Marfo, Applicant

Counsel: Bradley Burgess, for the Crown Mitchell Chernovsky and Faisal Mirza, for the Applicant

Heard: July 25, 2019; August 19, 2020; and September 25, 2020

T. Ducharme J.

Reasons for Sentence

OVERVIEW

[1] Mr. Marfo is charged with a variety of firearm offences as well as possession of crack cocaine.[^1] After an unsuccessful Garofoli application an agreed statement of facts was filed. Mr. Marfo was convicted of Counts 1 to 4 as well as the included offence to count 6, simple possession of crack cocaine. Count 5 was withdrawn.[^2]

The Nature of the Offence

[2] On January 18, 2017, a search warrant was executed at the residence of Mr. Marfo. The police entered the apartment at 2:46 a.m. and Mr. Marfo was the sole resident of the apartment. A loaded Glock 19 semi-automatic handgun was found as well as two overcapacity magazines which contained 13 and 14 rounds of 9 mm ammunition respectively. The handgun and magazines were in plain view on the shelf of the open closet in his bedroom. Two bags of crack cocaine were located. The cocaine totaled 7.12 grams with a street value of approximately $989. There were also a digital scale and some glass containers that appeared to contain drug residue.

[3] There is no dispute that the seized firearm is a prohibited firearm as defined in the Criminal Code. The ammunition is ammunition as defined in the Criminal Code. The magazines are prohibited devices as defined in the Criminal Code. Mr. Marfo was not the holder of a licence permitting possession of the firearm or the prohibited devices. Nor did Mr. Marfo have a registration certificate for the firearm.

Positions of the Parties

[4] Mr. Burgess for the Crown is seeking a custodial disposition of three and a half years. The Crown is also requesting the mandatory order pursuant to s. 109 of the Code, a DNA order and the forfeiture of the firearm, the magazines and the ammunition pursuant to s. 491of the Code. Mr. Chernovsky for Mr. Marfo takes no issue with the ancillary orders and asks that a custodial sentence in the reformatory range, i.e. 18 months to two years less a day or less, be imposed. In this regard, the defence emphasizes that Mr. Marfo has 28 days of pre-trial custody and has been under house arrest for 3 years and seven months.

[5] The parties came back to make further submissions on sentencing. In light of the decision of our Court of Appeal in R. v. Sharma, 2020 ONCA 478, [2020] O.J. No. 3183 (C.A.) the defence is now requesting that I impose a conditional sentence on Mr. Marfo. The other factor the defence suggested that I must consider is the increased public attention that has been directed towards anti-Black and anti-Indigenous systemic discrimination since the killing of George Floyd on May 25, 2020 by Minneapolis police officers and other subsequent acts of violence directed at Black or Indigenous persons at the hands of the police in Canada and the U.S.A. The Crown maintained its position that an appropriate sentence is three and a half years’ incarceration.

Personal Background of Mr. Marfo

[6] In discussing Mr. Marfo’s personal background I am relying on both the Pre-Sentence Report prepared by Probation Services as well as a document entitled, Social History of McKingsford Marfo, that was prepared by Ms. Camisha Sibblis a doctoral Candidate at York University who has bachelor’s degrees in philosophy and social work as well as a M.S.W.

[7] Mr. Marfo is a black man who is 30 years of age. His parents fled Ghana approximately 30 years ago and came to Montreal, where Mr. Marfo was born. He lived with his parents until he was four years of age when his family moved to Toronto. Mr. Marfo’s father left the family shortly thereafter although Mr. Marfo described him as still being present. Mr. Marfo reports that his father was strict and a disciplinarian. Mr. Marfo’s sister, Bettina, describes their father as being inconsistent in terms of contact with them. Mr. Marfo has a good relationship with his mother, Ms. Rita Opuku, and had lived his entire life in the family home until he was released on bail with respect to the current charges.

[8] Mr. Marfo has been in a relationship with Ms. Hanifah Gasmen since 2013 and they have a 33-month-old daughter. Ms. Gasmen is employed full-time as a nurse often working long shifts and Mr. Marfo has been the principal caregiver for his daughter while he has been out on bail.

[9] Initially when Mr. Marfo and his family moved to Toronto, Ms. Opuku experienced barriers to accessing social assistance and initially she was living with her three children in a shelter. Eventually Ms. Opuku was able to move into social housing in the Jane and Finch neighbourhood. This neighbourhood was riddled with both crime and violence. Ms. Opuku supplemented income from social assistance by working in factories although she did face barriers to employment as she did not speak English.

[10] Mr. Marfo did not report anything particularly exceptional about his schooling. He attended elementary and secondary school in Toronto. Mr. Marfo reported that when he was a student he smoked a large amount of marijuana starting at age 14 and he was not interested in his studies. One exception to this disinterest was Grade 6 where he had a Rastafarian teacher who taught Black content. Mr. Marfo did not complete his secondary education as he felt that “he didn’t need it”. He did play on a basketball team and he enjoyed the social status that went along with that.

[11] Mr. Marfo first saw someone who had been shot when he was 7 years of age. He recalled seeing two other dead bodies although he did not see them get murdered. When Mr. Marfo was 10 years old, bullets hit the wall in his backyard. When he was approximately 16 years of age Mr. Marfo was shot by someone he did not know from his neighbourhood. It was a matter of good luck that the bullet, which narrowly missed his heart, did not kill him.

[12] When Mr. Marfo was 20 years old he moved with his family to a social housing complex in the Rexdale neighbourhood. When he was 24, his younger brother and closest friend was shot and killed. Mr. Marfo’s brother was only 22 years of age and they had been living with one another. Mr. Marfo saw his brother’s lifeless body shortly after the shooting and he was called upon to identify him. This is perhaps the most serious trauma in Mr. Marfo’s background, and it left him with a pronounced sense of grief, fear, and helplessness. Ms. Gasmen, who was with him at the time, said that he simply stopped functioning after that. This was exacerbated a year later when a friend of his brother was murdered. While someone was convicted of manslaughter with respect to the killing of his brother, Mr. Marfo does not believe that person committed the crime. Mr. Marfo is concerned that he may be shot because of his ties to his brother or because of the area in which he lives and the perceived associations he has.

[13] Mr. Marfo reports that the death of his brother haunts him daily. He can be triggered by various things and suffer shortness of breath and tightness in his lungs. Mr. Marfo has never seen a counsellor about this experience, but he is open to doing so. While Ms. Sibblis said that she cannot officially diagnose medical or mental conditions she did suggest that Mr. Marfo displayed symptoms of Post-Traumatic Stress Disorder.

[14] After the shooting of his brother Mr. Marfo started a foundation in his brother’s memory collecting money and sending it to Ghana where the money was used to purchase school supplies, shoes, or other essentials for children in need.

[15] Mr. Marfo completed a pre-employment program in 2010 and worked as a general labourer through various staffing agencies. Mr. Marfo was accepted into a trades program and was given a one-year contract as a carpenter with Local 27. His brother was murdered shortly after the contract commenced and Mr. Marfo was laid off. Mr. Marfo is still a union member and he plans to resume working in the trades.

[16] Mr. Marfo reported no problems with drug or alcohol use, although he smoked marijuana up to the time of his arrest. He explained that he was selling illicit drugs for financial gain. He said, “[s]elling drugs was enticing, the money, it was just there. I was a product of my environment.” Ms. Sibblis notes that Mr. Marfo lacked a father figure and that he pursued drug trafficking both because it was lucrative and as a means of social elevation, as this behaviour had been modelled for him by many men in his community.

[17] Mr. Marfo described being routinely carded by the police as he was growing up. He said that he and other members of his community had been repeatedly been the victims of racist treatment by the police. He said the police treated the community horribly but still expected help when they wished to solve a crime. He did not trust the police and he felt targeted by them rather than protected by them. The surveillance and harassment by the police increased after Mr. Marfo was shot.

[18] Mr. Marfo explained that he obtained the firearm after his brother was shot as “he felt scared that the same thing would happen to him.” He said that having the firearm made him feel “a bit safer” and he stored it at his apartment in the closet. He conceded that having a firearm “is not right” but stated that “it seemed right at the time.” He also acknowledged that firearms “cause so much misery in the community … and hurt families.” His partner Ms. Gasmen said that Mr. Marfo is not vengeful and that he obtained the firearm “out of fear and for protection.” She stated that “it wasn’t a smart decision” but believes that the subject has learned from his actions and understands the nature of the offence and the consequences associated with it.

[19] Ms. Sibblis suggests in her reports that the situation that Mr. Marfo and his family found themselves in reflect systemic anti-Black racism in a number of respects. She also notes that their experiences are interconnected and consistent with the experience of many Black people in the GTA in the following ways:

(a) 25 % of Black women in Canada live below the poverty line as opposed to 6% of white Canadians. 47% of continental African children live in poverty;

(b) In Toronto Black people are over-represented in neighbourhoods most plagued by poverty and the associated violence, heightened surveillance and other forms of disadvantage;

(c) Low-income neighbourhoods have poorer access to community health services and recreational community programming, which often help to subvert the allure of gangs through positive community identity and participation;

(d) Black students are largely disengaged by the Canadian curriculum, which does not reflect their identities or affirm their presence in an integrated, positive, or substantial manner; and

(e) Black students are more than twice as likely to be expelled than their white counterparts or other racialized students.

[20] Ms. Sibblis suggests that because of the foregoing systemic and institutional impediments, Black youth like Mr. Marfo “are particularly vulnerable to poor academic outcomes, unemployment, lower wages and criminalized behaviour.” She opines that these factors “are consistent with the broader issue of systemic discrimination in the lives of Black people in particular and reveal the largely normalized anti-Black racism entrenched in Canadian institutions, policies and practices.”

The Relevance and Proper Use of Social Context Evidence

[21] The process of determining the proper sentence to impose on a person following their conviction of a criminal offence is an extraordinarily complex and personally demanding task. Professor Benjamin L. Berger expressed this eloquently in his article, “Sentencing and the Salience of Pain and Hope” (2015) 70 Supreme Court Law Review (2d) 337 at p. 339:

There is perhaps no moment in the work of a judge that is more harrowing and morally demanding than the act of sentencing — the moment at which he or she decrees the suffering of another person.

[22] This harsh reality is not lessened by the fact that trial judges are called upon to impose sentences hundreds of times a day throughout Canada.

[23] To assist the trial judge the Criminal Code sets out the relevant principles of sentencing and there is an extensive jurisprudence dealing with the objectives of sentencing: denunciation; deterrence, both specific and general; protection of society; provision of reparation to victims; promotion of a sense of responsibility amongst offenders; and rehabilitation of offenders. In applying this law in any particular case, the trial judge must consider the facts of the crime, its effects on the victims and the broader community as well as the background of the offender. The latter can be done through a Pre-Sentence Report, letters or testimony from family and friends of the offender and through the submissions of counsel.

[24] What is new in this case is the Social History of Mr. Marfo prepared by Ms. Sibblis. This is similar to Gladue reports that may be prepared when a court is sentencing an Indigenous offender. I understand that such reports have been used in Nova Scotia for some time but they are a relatively new thing in Ontario. Such reports played a central role in two decisions by my brother, Justice Nakatsuru, in R. v. Jackson, 2018 ONSC 2527 and R. v. Morris, 2018 ONSC 5186.[^3] These are the two principal cases that the defence is relying on in urging me to impose a sentence that might appear to be less harsh than those typically imposed in firearms cases.

[25] The Crown does not oppose the admissibility of Ms. Sibblis’ report and he concedes that the more information a sentencing judge has about the person being sentenced the better. However, the Crown argues that the existence of systemic anti-black racism does not eliminate the need to assess the moral blameworthiness of the offender and should not be used to diminish the seriousness of the crime itself or the importance of denunciation. The defence denies that they wish to eliminate the assessment of Mr. Marfo’s moral blameworthiness. Rather they wish to explain and give context to that moral blameworthiness. They also point to studies that suggest that Black inmates are treated worse than others while incarcerated and urge me to take that into account in fashioning a sentence.

[26] In my view a report such as that prepared by Ms. Sibblis can be of great assistance to the court in helping to demonstrate the background of the person being sentenced and how they came to commit the crime they are being sentenced for. However, I would caution against any suggestion that such reports are a necessity whenever a Black person is being sentenced. I say this only because of the sad reality of our overburdened and underfunded Legal Aid plan. Too many people are unable to get legal aid and too many services that are part of a proper defence are not funded fully, or at all.[^4] I would not want to be taken to suggest that reports such as this receive some special funding priority. That is not a decision for this Court to make.

[27] Given this reality, the courts must be open to paying attention to the reality of anti-Black racism and to the opinions and findings expressed in various studies and reports. No doubt there are a variety of reasons that Blacks, like Indigenous people, are over-represented in our justice system and in our jails. As the Supreme Court of Canada said at of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 at para. 57:

Over incarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematic manner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarming rate.

[28] The reasons for this over incarceration may be many but as my brother, Justice Code, stated in R. v Nur, 2011 ONSC 4874, at para. 79, “it is not difficult to establish that anti-black discrimination undoubtedly contributes to many of these underlying societal causes.”[^5]

[29] Thus, while increasing public concern and debate about systemic discrimination against Black or Indigenous persons has been heightened in the wake of the killing of George Floyd and the violence directed towards Black and Indigenous persons in Canada and the United States, it would be wrong to suggest that these concerns have not been recognized in our legal system. In R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, Justice McLachlin recognized that there is widespread bias against aboriginal people within Canada. At para. 58 she observed, “[t]here is evidence that this widespread racism has translated into systemic discrimination in the criminal justice system”. This concern about systemic discrimination was continued in Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688[^6] and Ipeelee 2012 SCC 13, [2012] 1 S.C.R. 433. Certainly, it is true that many judges have paid insufficient attention to these concerns raised by the Supreme Court of Canada. Hopefully this increased public recognition of anti-Black and anti-Indigenous systemic discrimination, indeed of systemic discrimination against any groups in society, will cause all of us, judges included, to pay greater attention to the often nuanced effects that such discrimination can have. Thus, as judges, it is our duty to consider the impact such discrimination has had on someone we are sentencing. We must also ensure that neither the process nor the result of sentencing results in further systemic discrimination.

The Principles of Sentencing

[30] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful, and safe society. The court attempts to achieve this purpose by imposing just penalties that have one or more of the following objectives:

(1) denouncing unlawful conduct and the harm done to victims or the community [s. 718(a)];

(2) deterring this offender and others from committing offences [s. 718(b)];

(3) imprisoning offenders where necessary to separate them from law abiding members of society [s. 718(c)];

(4) assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment [s. 718(d)];

(5) providing reparation for harm done to victims of the community [s. 718(e)]; and

(6) promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims and to the community [s. 718(f)].

[31] Section 718.1 of the Criminal Code provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. Section 718.2 of the Criminal Code also requires the court to take into account other principles, including these:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

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

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

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[32] By including these last two principles within the Criminal Code, Parliament has directed courts in effect to consider imprisonment as a last resort.

[33] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 the Supreme Court held at para. 43:

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. [Citations omitted.] No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

[34] Both the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 at para. 25 and our Court of Appeal in R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258 at para. 18 have made it clear that offences involving firearms, including possession under s. 95 of the Criminal Code, are serious crimes and the principles of denunciation and deterrence are paramount in sentencing an individual for a firearms offence.

[35] I will discuss each of these principles in turn.

Denunciation

[36] Denunciation as a principle of sentencing was explained by Chief Justice Lamer in R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 (S.C.C.) at para. 81:

Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: “society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass”. The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [Emphasis added.]

[37] In this case, an appropriate sentence must denounce the possession of illegal firearms and ammunition, both of which pose a significant risk to the broader community. As has been repeatedly observed there is no legitimate purpose for possessing a handgun and Parliament has sought to protect the public from firearms-related injuries and to deter crimes involving firearms.

Deterrence

[38] Justice Charron explained deterrence as a sentencing principle in R. v. B.W.P., 2006 SCC 27, [2006] 1 S.C.R. 941 (S.C.C.) at para. 2:

Deterrence, as a principle of sentencing, refers to the imposition of a sanction for the purpose of discouraging the offender and others from engaging in criminal conduct. When deterrence is aimed at the offender before the court, it is called “specific deterrence”, when directed at others, “general deterrence”. ... General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

[39] Given his age and the fact that he has complied with the terms of his release for more than the last three-and-one-half years, I think Mr. Marfo is unlikely to re-offend. I am supported in this conclusion by his relationship with Ms. Gasmen and their daughter. Thus, specific deterrence is not particularly relevant to the sentence I must impose. However, general deterrence remains an important objective in order to deter others in the community from the possession or use of firearms.

Sentences for Firearm Offences

[40] As explained above the courts have made it clear that denunciation, deterrence, and the protection of the public are the paramount sentencing objectives to be applied when sentencing firearms offences. Therefore, it is not surprising that such offences have attracted stiff sentences. Thus in R. v. Smickle, a case where the appellant was sitting on a couch in an apartment taking pictures of himself with another person’s gun, our unanimous Court of Appeal said at para. 19:

This court has clearly indicated that convictions under s. 95 of the Criminal Code demand denunciatory sentences: see Smickle, at para. 30; and R. v. Nur, 2013 ONCA 677, at para. 206. Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders. [Emphasis added.]

[41] In Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (O.C.A.)[^7], in ruling that the minimum sentence for s. 95 offences was unconstitutional, the Court spoke of a spectrum of such offences. At para. 206 of the decision, the Court wrote:

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years.[^8] [Emphasis added.]

[42] The foregoing passage was cited with approval by our Court of Appeal in R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 at para. 49. Justice Cronk observed:

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

[43] In the result the Court upheld a sentence of three and a half years for a first offender who was arrested in his apartment with the firearm. The appellant was also involved in drug trafficking.

[44] I recognize that Justice Feldman noted at para. 110 and 171 of Sharma:

In Proulx, the Supreme Court explained that a conditional sentence, unlike a suspended sentence, is a jail sentence but served in the community. It serves the functions of deterrence and denunciation: Proulx, at paras. 41, 67. Indeed, conditional sentences may be available even in cases where deterrence and denunciation are the paramount sentencing objectives: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35.

… in making that argument, the Crown mischaracterizes the conditional sentence as a form of punishment that carries no deterrent or denunciatory effect. Even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on “the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served”: Proulx, at para. 114; see also Wells, at para. 35. [Emphasis added.]

[45] But this is nothing new. As Justice Feldman notes, the Supreme Court of Canada has recognized this at least since 2000 in Proulx and Wells. The real question is whether, on the facts of this case, a conditional sentence would have a sufficient deterrent and denunciatory effect.

The Appropriate Sentence in this Case

Aggravating and Mitigating Circumstances

[46] In crafting the appropriate sentence, it is important to consider both the aggravating and mitigating factors in the case. There are several aggravating circumstances in this case: (a) the firearm is a very dangerous weapon whose only purpose is to wound or kill others; (b) the handgun in this case is easy to conceal and to transport; (c) the firearm had a round in the chamber and it was ready to fire; (d) both magazines were overcapacity permitting the use of more bullets; (e) there were 28 rounds in the two magazines; and (f) the firearm was carelessly and dangerously stored, lying on a shelf in the closet in plain view. There is also the fact that Mr. Marfo admitted that he was involved in drug trafficking. The courts have made it clear that the combination of firearms and drug trafficking justifies a higher sentence. However, in this case, Mr. Marfo was only convicted of simple possession of crack cocaine, so despite his candour to the author of the P.S.R. and to Ms. Sibblis, I will not regard this as an aggravating factor.

[47] Unlike many other such cases there are a number of mitigating factors with respect to Mr. Marfo: (a) I take the resolution of this case as a genuine indication of Mr. Marfo’s remorse. I do not fault him or his counsel for making a Garofoli application. Mr. Marfo’s remorse is also evident in his comments about firearms; (b) Mr. Marfo seems to be an intelligent man with a strong interest in African history and in his personal background; (c) Mr. Marfo had succeeded initially in a carpentry training programme and remains a member of the Union. He indicates that after serving his sentence he wished to return to work; (d) Mr. Marfo’s family is supportive of him. This is especially true of Ms. Gasmen, the mother of his daughter. Such supports will significantly help him with his rehabilitation when he has served his sentence; (e) Mr. Marfo has complied with the conditions of a strict bail and he has been the primary child care provider for his young daughter; and (f) Following the tragic murder of his younger brother Mr. Marfo started a foundation to assist under-privileged children in Ghana. He has indicated a desire to continue this sort of work when he returns to his community.

[48] I want to discuss Mr. Marfo’s moral culpability for these offences. Mr. Marfo did not have to obtain a firearm, over capacity magazines or ammunition, and he did not need to become involved with drugs. He made a choice, a choice that many other members of his community faced with the same pressures and challenges of anti-Black racism, poverty, violence and mistrust of the police and the justice system do not make. Indeed, having been shot himself and having lost his brother to gun violence, he should know better than most why firearms are a scourge, particularly in his community, that the legal system must try and eliminate.

[49] However, it would be wrong to completely ignore Mr. Marfo’s personal history and the context in which he made his decision. Given that Mr. Marfo lacked a positive male role model and saw the prevalence of drug trafficking in his community, it is more understandable that he might become involved with drugs both for the financial rewards and the sense of social elevation. This outcome would have been far less likely if he had been raised in an intact family in a more affluent community. This is a factor which I must consider in assessing Mr. Marfo’s moral culpability.

[50] Even more significant is the effect that the shooting of Mr. Marfo and the murder of his brother had on him. Mr. Marfo still believes that the real killer of his brother is out of custody and he fears for his life. He does not trust the police and does not feel that they can keep him safe. Sadly, this lack of trust in the police appears to be common in the Black community, among others. As the Supreme Court of Canada noted in R. v. Le 2019 SCC 34 at para 93 the Ontario Human Rights Commission in 2018 found that the Toronto Police service disproportionately used force against Black people as well as stopping, questioning, detaining and arresting Black people more than was appropriate. The Supreme Court noted that the “report reveals that many had experiences that have ‘contributed to feelings of fear/trauma, humiliation, lack of trust and expectations of negative police treatment.’”[^9]

[51] I also find that it is highly likely that Mr. Marfo suffers from PTSD. It is in this context that he chose to get a firearm. I do not mean to suggest that he had to do this or that it is an acceptable decision. He did not and it was not. But this provides a context which permits one to understand why Mr. Marfo made the wrong decisions that he did. This too is relevant to a more nuanced understanding of his moral culpability.

[52] Finally, Mr. Mirza points me to Appendix A of R. v. Morris, supra, a study entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” authored by Ms. Sibblis and two other academics. While the study is an interesting overview of the myriad problems facing Black Canadians in Toronto, what particularly concerns me is the suggestion that Black inmates are treated more harshly in custody. The Office of the Correctional Investigator produced a detailed report in 2013 that outlined a variety of inequalities faced by Black inmates. These included: (a) The number of Black inmates facing disciplinary charges increased by 59%, whereas the overall number of disciplinary charges laid over the same period dropped by 7%; (b) Black inmates were more likely to be placed in maximum security and were less likely than their counterparts to have their custody score lowered so that they could be transferred to medium or minimum security prisons; (c) Black inmates are over-represented in admissions to segregation and disproportionately involved in use of force incidents; (d) Black inmates also reported numerous examples of stereotyping and that judgments about their character and lifestyle were also common. Black inmates were associated with gangs from their home neighbourhood and this association hindered their access to jobs and to vocational training. The findings of the Office of the Correctional Investigator are very disturbing, and I find them highly relevant to the determination of the appropriate custodial sentence for Mr. Marfo. If a sentence is more onerous for a Black man because of systemic anti-Black racism in the correctional system, then any sentence I impose must be shortened to recognize this fact.

[53] The Crown suggests that this case is like R. v. Marshall and recommends that the same sentence of three and a half years be imposed. While the facts are similar in terms of the gun, Mr. Marshall had a trial and was also convicted of trafficking in cocaine as well as two breaches of his recognizance. Mr. Marfo did not have a trial and was not convicted of these other serious offences. Moreover, Mr. Marshall minimized his offence and saw no need to change his life, while I have found that Mr. Marfo genuinely regrets the offence and recognizes how serious it was. Also, as I have outlined above there are numerous other mitigating factors in this case that were absent in Marshall.

[54] One further factor to consider on sentencing is that Ms. Gasmen, Mr. Marfo’s partner and the mother of his daughter, is a registered practical nurse and she has indicated that if Mr. Marfo is incarcerated there will be no one available to care for their daughter, Asabe Marfo. Asabe has been diagnosed with sickle cell disease and is at an elevated risk for Covid-19, so they are reluctant to place her in childcare. As a result, Ms. Gasmen has indicated that if Mr. Marfo is incarcerated, she will have to quit her job.

[55] I have carefully considered all of the cases referred to by counsel. I accept that Mr. Marfo has been affected by systemic discrimination throughout his life and that this has led him to his involvement in criminal activity. In my view, some of the aspects of Mr. Marfo’s personal history do somewhat reduce his moral culpability for these crimes. But this recognition of anti-Black systemic discrimination and its effects does not mean that I am free to ignore the very serious nature of firearm offences or our Court of Appeal’s very strong direction as to what sort of sentence they should attract. Consequently, I have concluded that a conditional sentence would not have a sufficient deterrent and denunciatory effect. In my view, the appropriate sentence in this case is 24 months.

Credit for Pre-Trial Incarceration and Restrictive Bail

[56] Mr. Marfo was arrested on January 18, 2017 and held at the Maplehurst Detention Centre for one month until granted bail. He was released on bail on February 15, 2017. The terms of Mr. Marfo's bail were akin to house arrest. Mr. Marfo was not permitted to leave his residence except in the presence of a surety. The conditions of the bail remained in place until today’s date.

[57] While time spent on bail under house arrest conditions must be taken into account by the sentencing judge, there is no rigid formula to be applied in reducing the sentence, given the wide variation in release conditions: R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555 (C.A.), at para. 34. In Downes, the accused, who had been on bail for 18 months under a fairly strict house arrest, was awarded five months’ credit towards his sentence.[^10] The credit to be afforded to the accused is a matter of discretion for the sentencing judge. The overriding consideration will generally be the impact of the conditions for release on the accused.

[58] In this case, Mr. Marfo spent 43 months on a strict house arrest bail and I will give him 12 months credit for his strict bail.

[59] The Crown concedes that Mr. Marfo should be given one and a half-for-one credit for pre-trial custody towards his sentence. He was in custody for 28 days, which entitles him to 42 days’ credit. Therefore, when combined with the credit for the time he spent under stringent bail conditions, Mr. Marfo is entitled to 13 months, 12 days towards his sentence.

Conclusion

[60] Mr. Marfo I hereby sentence you to 24 months incarceration less 13 months, 12 days of credit for pre-trial custody. In the result, your sentence will be 10 months and 18 days.

[61] There will also be a mandatory weapons prohibition under s. 109 of the Criminal Code. This means that you are not to possess any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. Further you are not to possess any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for ten years after your release from imprisonment.

[62] I shall also make an order pursuant to s. 491 of the Criminal Code ordering that the firearm, the magazines and the ammunition be forfeited to Her Majesty to be disposed of as the Attorney General shall direct.

[63] Finally, I shall make an order pursuant to s. 487.051(1) that you provide such samples of bodily substances as are reasonably required for the purpose of forensic DNA analysis.

T. Ducharme J.

Released: September 25, 2020

COURT FILE NO.: CR-18-40000271 DATE RELEASED: 2020-09-25

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – MCKINGSFORD MARFO Applicant

REASONS FOR SENTENCE T. Ducharme J.

Released: September 25, 2020

[^1]: There is no dispute that Mr. Marfo was engaged in trafficking cocaine and this is referred to in both the pre-sentence report and in the Social History prepared by Ms. Sibblis. [^2]: Mr. Marfo did not plead guilty, to preserve his right on appeal, but he did not contest that these charges could be proven at trial. [^3]: The Crown did not appeal the decision in Jackson. The Crown did appeal the decision in Morris and the Court of Appeal has granted intervenor status to eight groups, but the appeal has not yet been heard: R. v. Morris, [2019] O.J. No. 3149. [^4]: For example, Mr. Marfo’s counsel sought legal aid funding for a psychological assessment of Mr. Marfo and it was refused. [^5]: Appeal allowed on other grounds, 2015 SCC 15, [2015] 1 SCR 773. [^6]: At para. 68, the Court observed, “It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.” [Emphasis added.] [^7]: Upheld by the Supreme Court of Canada: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. [^8]: This was cited approvingly by the court in R. v. Marshall 2015 ONCA 692, [2015] O.J. No. 5348 at para. 47. [^9]: A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service, Ontario Human Rights Commission, November 2018. [^10]: In R. v. Phronimadis, [2006] O.J. No. 3992 (C.A.), the accused was given eight months’ credit for 31 months of restrictive bail conditions. At para. 2, the Court emphasized that no “formulaic approach to sentencing credit for a lengthy period of pre-sentence house arrest is envisaged by Downes” but rather that the determination of what, if any credit should be given “must be case specific.”