COURT FILE NO.: CR-19-90000094

DATE: 20201008

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KEVIN LEVAR PRINCE

Defendant/Respondent

Diana Lumba, for the Crown

Alana Page, for the Defendant

HEARD: September 24, 2020

CAVANAGH J.

REASONS FOR SENTENCE

[1] Mr. Prince was found guilty of the following offences after a trial before a judge and jury over which I presided:

a. Possession of a controlled substance, cocaine, for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.

b. Possession of property or proceeds of property of a value not exceeding five thousand dollars knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment contrary to s. 354(1)(a) of the Criminal Code.

c. Possession of a prohibited firearm while knowingly not being the holder of a licence permitting such possession, and a registration certificate for the firearm, contrary to s. 92(1) of the Criminal Code.

d. Possession of a loaded prohibited firearm without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

e. Possession of a firearm knowing that the serial number thereon had been defaced, contrary to s. 108(1)(b) of the Criminal Code.

[2] Mr. Prince appeared before me for a sentencing hearing on September 24, 2020 and he appears before me today for sentencing.

[3] Crown counsel submits that the proper sentence for these offences is a global one of nine years of imprisonment. This is broken down based on a sentence of eight years for the offence of possession of a loaded unregistered firearm and two years for the offence of possession of cocaine for the purpose of trafficking. The Crown asks for a sentence of one year on the count of possession of proceeds obtained as a result of commission of an indictable offence, to be served concurrently with the sentence for possession of cocaine for the purpose of trafficking. The Crown asks that the offence of possession of a prohibited unregistered firearm be stayed. The Crown asks for a sentence of one year for the offence of possession of a firearm knowing that the serial number had been defaced, to be served concurrently with the sentence for possession of a loaded unregistered firearm.

[4] The Crown asks that the total of sentence of ten years be reduced by one year to reflect the totality principle. The Crown accepts that the nine year term of imprisonment must be reduced to give credit for presentence detention. The Crown submits that the credit for presentence detention is one and one-half days for each of 973 days of presentence detention. This amounts to 1,460 days, or 48 months (rounded). The Crown accepts that enhanced credit is appropriate for the particularly harsh conditions during Mr. Prince’s detention at the Toronto South Detention Centre, including during the period after March 16, 2020 because of the circumstances associated with the COVID-19 pandemic. The Crown submits that this enhanced credit should be given based on an additional one day for each of 321 days of lockdown during the period of Mr. Prince’s detention, a period of ten and one-half months.

[5] Counsel for Mr. Prince submits that the appropriate global sentence is six years in custody. This is based on a sentence of five years for the offence of possession of a loaded unregistered firearm and two years for possession of cocaine for the purpose of trafficking. The total of seven years should be reduced to six years to give effect to the principle of totality. Counsel for Mr. Prince agrees that he should receive credit for time spent in presentence detention based on 1.5 days of credit for each day of presentence detention. Mr. Prince also asks for enhanced credit because of the particularly harsh conditions at the TSDC, the Duncan credit, based on one and one-half days of credit for each day of lockdown. Mr. Prince asks for additional credit for being detained after March 16, 2020 because of the harsh circumstances associated with the COVID-19 public health crisis, either separately, or as part of the Duncan credit.

[6] The Crown submits that the following ancillary orders should be made:

a. An order under s. 487.05 of the Criminal Code that Mr. Prince provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;

b. A forfeiture order; and

c. An order under s. 109 of the Criminal Code for life.

[7] I have considered the factual circumstances of the offences, Mr. Prince’s background, and the relevant legal principles. I find that the appropriate sentence is a global sentence of ten years, reduced to nine years to give effect to the principle of totality, with credit of 48 months for pre-sentence detention and an additional credit of 16 months because of the particularly harsh conditions at the TSDC, which includes credit for the period from March 16, 2020 during the COVID-19 public health crisis.

[8] The following are my reasons.

Circumstances of the Offences

[9] On February 3, 2018 members of the Toronto Police forcibly entered an apartment in which Mr. Prince was found. One of the arresting officers, Officer Bilby, testified that when he saw Mr. Prince, he was starting to stand up from a futon and the officer observed Mr. Prince holding a handgun in his right hand. Officer Bilby testified that he had a physical encounter with Mr. Prince during which he heard something loudly hitting the floor. Officer Bilby testified that after Mr. Prince was handcuffed by other officers, Officer Bilby saw a magazine on the floor. The magazine had bullets in it. The Crown led evidence that the firearm was a Ruger 9mm handgun. The Crown’s position at the trial was that the evidence proved that Mr. Prince had personal possession of the Ruger 9mm handgun, which was loaded.

[10] Section 724(2) of the Criminal Code provides that in determining a sentence, where the court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.

[11] It was essential to the jury’s verdicts of guilty on the firearm offences that Mr. Prince was in possession of a loaded prohibited firearm. I accept this fact as proven.

[12] At trial, the evidence was that a Ziplock bag containing 32.15 grams of cocaine was found on a table beside the futon from which Mr. Prince was getting up when he was observed by Officer Bilby. Two small digital scales were found nearby in the apartment. A notebook was found in a backpack in the apartment containing pages with names of persons and dollar amounts beside their names. The Crown tendered evidence that this quantity of cocaine could be sold for amounts ranging from $2,572 to $6,420, depending on the units of sale and the prices charged, and that this quantity of cocaine represents 321 “hits” based on 0.10 grams per hit.

[13] The Crown’s position at trial was that Mr. Prince had constructive possession of the 32.5 grams of cocaine in that he knew the cocaine was on the table where it was found, he knowingly had the cocaine on this table for the use and benefit of himself or somebody else, and he exercised some control over the cocaine while it was on the table. The Crown’s position was that Mr. Prince possessed the cocaine for the purpose of trafficking. These facts were essential to the jury’s verdicts of guilty on the drug charges, and I accept them as proven.

[14] The evidence at trial was that Mr. Prince had three bundles of cash in his pocket amounting to $2,315. In addition, money was found on a coffee table in the living room ($30) and coins were found in the backpack ($94). These amounts total $2,439.

[15] It was not essential to the jury’s verdict that Mr. Prince had possession of the money found on the coffee table or the money found in the backpack. I accept as proven that Mr. Prince had personal possession of $2,315 that was found in his pocket. I also accept as proven that Mr. Prince was knowingly in possession of money that was obtained by or derived from the commission of a criminal offence. These facts were essential to the jury’s verdict on this charge.

[16] The evidence at trial was that the serial number on the Ruger handgun had been defaced. I accept as proven that Mr. Prince possessed the Ruger handgun, the serial number of which had been defaced, and that Mr. Prince knew that the serial number had been defaced. These facts were essential to the jury’s verdict on this charge.

Circumstances of Kevin Prince

[17] Mr. Prince was born on December 17, 1980 in Toronto. He is 40 years old. He is a Black man of Guyanese descent. Mr. Prince discontinued high school in grade 10. Mr. Prince was 37 years old when he was detained and has been remanded at the Toronto South Detention Centre since February 2018.

[18] Mr. Prince is in a relationship with his partner with whom he is the parent of a three year old daughter. He was not employed at the time of his arrest.

[19] Mr. Prince has an adult criminal record of 38 convictions from 2000 to 2017. This record includes eight convictions for firearms offences including three convictions in 2000, 2002, and 2006 for possession of a prohibited or restricted firearm with ammunition contrary to s. 95(1) of the Criminal Code. Mr. Prince has ten convictions for drug offences from 2000 to 2017. His last conviction for possession of a Sch. I substance for the purpose of trafficking is dated February 6, 2017. Mr. Prince was subject to eight mandatory prohibition orders and one discretionary prohibition order pursuant to s. 109 and 110, respectively, of the Criminal Code from 2000 to 2017. Mr. Prince was on probation at the time of his arrest for the offences which are before me for sentencing.

[20] I address other aspects of Mr. Prince’s personal background in more detail when I address the aggravating and mitigating factors.

Analysis

Sentencing principles

[21] Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing:

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

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

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

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

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[22] Section 718.1 provides that the fundamental purpose of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[23] Section 718.2 sets out other sentencing principles that a court that imposes a sentence shall also take into consideration:

(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 ... [expressly listing a number of 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.

Range of Sentence for s. 95(1) offence

[24] The Crown submits that the proper range of sentence for an offender in Mr. Prince’s circumstances is six to nine years of imprisonment. In support of her submissions, Crown counsel relies principally on the decision in R. v. Graham, 2018 ONSC 6817.

[25] In Graham, the accused was convicted after a jury trial of offences including possession of a prohibited firearm with readily accessible ammunition contrary to s. 95 of the Criminal Code. The accused had previously been convicted of possession of a prohibited or restricted loaded firearm. In his reasons for sentence, at para. 23, the sentencing judge, Code J., referenced the principles of sentencing in ss. 718, 718.1, and 718.2 of the Criminal Code and expressed that the most important principle of sentencing is “proportionality”, that is, a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s. 718.1. The maximum sentence for the s. 95 firearms and ammunition possession offence is ten years. Code J. addressed the aggravating and mitigating circumstances and then turned to the appropriate range for this offence.

[26] In Graham, at para. 36, Code J. held in relation to the s. 95 firearms offence that it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and great danger posed by loaded handguns in the City of Toronto (or handguns with readily accessible ammunition). He held that there was a strong need for specific deterrence in the case before him, given the offender’s persistent recidivism. Code J. referred to guidance in the case law as to the appropriate range of sentence in s. 95 cases. He referenced decisions of the Court of Appeal which support an appropriate range of three to five years for a first s. 95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In cases involving offenders with repeated convictions for s. 95 offences, Code J. referred to other jurisprudence, at para. 39:

In the case of s. 95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles (2013), 2013 ONCA 681, 303 C.C.C. (3d) 352 (Ont. C.A.) and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s. 95 recidivists who had each breached two prior s. 109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s. 95 recidivists who breach s. 109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s. 95 recidivist who also received a two-year consecutive sentence for breach of probation orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s. 95 offences and breaches of s. 109 prohibition orders. [citations omitted]

[27] In Graham, the accused was also convicted of three severed counts of breach of probation and breach of two firearms prohibition orders. Code J. imposed a one year consecutive sentence for the s. 109 offences. He treated the breach of probation orders as an aggravating factor and did not impose a consecutive sentence for that offence. In this case, Mr. Prince was charged with possessing a firearm while prohibited from doing so by reason of an order made under s. 109 of the Criminal Code. He has not been found guilty of these charges. The Crown asks that I treat the fact that Mr. Prince was convicted with possession of a loaded firearm while he was on probation and subject to a number of s. 109 prohibition orders as an aggravating circumstance.

[28] Code J. concluded, at para. 40, that the upper end of the range supports an eight to ten year total sentence for s. 95 recidivists who breach s. 109 orders.

[29] Counsel for Mr. Prince submits that the proper range for the s. 95 firearm offence is three to five years of imprisonment. In support of this submission, counsel relies on R. v. Elvira, 2018 ONSC 7008, [2018] O.J. No. 6185, R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348, and R. v. Nguyen, 2019 ONSC 6358.

[30] In Elvira, the accused was convicted of possession of a loaded restricted or prohibited firearm contrary to s. 95(1) of the Criminal Code as well as drug offences. The accused was 24 years old, with no prior criminal record. With respect to the s. 95 offence, the sentencing judge concluded, at para. 27, that a review of relatively recent trial and appellate decisions, including Graham, suggests that the usual range is three to five years.

[31] In Marshall, the Court of Appeal heard a conviction and sentencing appeal following a trial where the accused was convicted of possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code. The accused was 23 at the time of the offence and had no prior record. The trial judge sentenced him to three and one-half years’ imprisonment less credit for pre-sentence custody. At the time of sentencing, the three-year mandatory minimum sentence for this offence had not been struck down by the decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15. The Court of Appeal reviewed the sentence and concluded that the sentence was well within the range of sentences upheld by the Court of Appeal for weapons offences committed in association with drug crimes.

[32] In Nguyen, the accused was convicted of unlawful possession of a prohibited firearm contrary to s. 92(1) of the Criminal Code. Although the firearm was loaded, the accused was not aware of this and that is why he was convicted of a s. 92 offence and not a s. 95 offence. The accused had a prior conviction as a youth for possession of a firearm, but no prior conviction for such an offence as an adult. The sentencing judge regarded the cases dealing with s. 95 offences as not of much assistance. She imposed a sentence of 36 months for the s. 92 offence.

[33] Counsel for Mr. Prince submits that I should not follow the decision in Graham because the facts were decidedly different. The accused in Graham was walking through a crowded bar with a loaded gun. He had had possession of almost three ounces of cocaine, considerably more than Mr. Prince possessed, as well as $15,000 of cash, and a box of ammunition. The accused in Graham also had a prior conviction for attempted murder. Counsel contends that the eight year sentence imposed in Graham is significantly higher than is justified in this case.

[34] The authorities upon which counsel for Mr. Prince relies in support of her submission that the proper range of sentence for the s. 95 offence is three to five years of imprisonment do not involve mature recidivist offenders. The three to five year range is appropriate for a first s. 95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. Where, as in this case, the offender is a mature person with a record of repeated convictions for s. 95 offences, different considerations apply, and there is a strong need for specific deterrence, as Code J. noted in Graham, at para. 36.

[35] The proper range of sentence for the s. 95 offence in this case is six to nine years of imprisonment.

Range of sentence for possession of cocaine for the purpose of trafficking

[36] The conviction for possession of cocaine for the purpose of trafficking is a separate offence based on separate public policy interests and requires a separate punishment: see Graham, at para. 43.

[37] In Graham, at paras. 42-43, Code J. addressed the range of sentence for the offence of possession of cocaine for the purpose of trafficking. He noted that cocaine is a hard drug because it is addictive and because it causes significant direct and indirect damage to users, to their families, and to the safety and security of society. Code J. emphasized that cocaine trafficking is associated with violence, and he endorsed the following words of Doherty J.A. in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129, at para. 161:

The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be dissociated from its inevitable consequences. Unlike the trial judge, I characterize cocaine importation [and possession for the purpose of trafficking, in this case] as both a violent and serious offence: R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 CCC (3d) 124 at pp. 143 to 144 (S.C.C.).

[38] In Graham, Code J. also observed, at para. 46, that an important feature of drug trafficking offences is that “they are rationally premeditated commercial crimes driven by the profit motive” and, “[b]ecause of the significant harms and violence associated with cocaine trafficking, and because it is a planned and premeditated commercial crime, the courts have repeatedly stressed that denunciation and deterrence are the most important sentencing principles in these cases”.

[39] In cases involving constructive possession of an ounce or less of cocaine, Code J. cited the decision of the Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) which held that the sentencing envelope is 6 months to 2 years less a day.

[40] I adopt the comments made by Code J. in Graham in relation to the offence of possession of cocaine for the purpose of trafficking.

[41] In this case, Mr. Prince possessed 32.15 grams of cocaine, which is 1.13 ounces. I conclude that the proper range of sentence for this offence in this case is 6 months to two years of imprisonment.

Aggravating and mitigating factors

[42] The following are aggravating circumstances relating to the s. 95 offence:

a. Mr. Prince is a mature adult who has three prior convictions in 2002 and 2006 for possession of a loaded prohibited or unregistered firearm. The prior convictions did not deter Mr. Prince from possession of a loaded firearm.

b. Mr. Prince possessed a loaded handgun on his person in a small apartment with two persons in an adjacent room, and three other persons in a nearby bedroom. The gun was not stored in a secure place. Although the circumstances of the possession are less aggravating than if the gun was brandished in a public place, they still posed a risk of harm to those in the apartment and constitute an aggravating factor.

c. Mr. Prince breached nine prior orders prohibiting him from possessing a firearm under s. 109 of the Criminal Code and he was on probation at the time of the offence.

d. Mr. Prince possessed the firearm and ammunition for an unlawful purpose. This is not in the nature of a regulatory or licensing infraction.

e. Mr. Prince’s possession of a loaded firearm was related to his possession of cocaine for the purpose of trafficking. In R. v. Wong, 2012 ONCA 767, the Court of Appeal held that this “toxic combination ... poses a pernicious and persisting threat to public safety and the welfare of the community”. The combination of drugs and guns is an aggravating factor on sentencing (Wong, at paras. 11-13).

[43] The following are aggravating circumstances relating to the drug offence:

a. Mr. Prince is a mature adult who has ten prior convictions for possession for the purpose of trafficking, most of which involved Sch. I substances or actual trafficking.

b. There is no suggestion that Mr. Prince was an addict. He possessed the cocaine only as part of a money-making business (Graham, at para. 27).

c. As I have noted, cocaine is a hard addictive drug that causes significant harm.

[44] The following are mitigating circumstances in relation to all offences:

a. Mr. Prince has strong family support from his partner (and the mother of his daughter) and his father, who has expressed a willingness to provide employment to Mr. Prince upon his release.

b. Mr. Prince appears to be an intelligent man who developed skills in home renovation, and he had prepared a business plan before his arrest with respect to opening a restaurant. These are attributes that contribute to his potential for rehabilitation.

c. Mr. Prince has experienced challenges in his life, as described in the Enhanced Pre-Sentence Report, which played a role in the commission of the offences. I address the circumstances described in this report more fully below.

Mr. Prince’s personal background including systemic issues involving race

[45] In R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252, the Court of Appeal addressed the proper role of a sentencing judge where broad societal issues are raised as they relate to the offender. The Court of Appeal, at paras. 133-140, held that the fact that an offender is a member of a group that has historically been subject to systemic racial bias does not in it of itself justify any mitigation of his sentence. A sentencing judge is, however, required to take into account all factors that are germane to the gravity of the offence and the personal culpability of the offender. That inquiry can encompass systemic racial bias. Reference to factors that may have played a role in the commission of the offence encompasses a broad range of potential considerations. Those factors include any explanation for the offender’s commission of the crime. If racial bias suffered by the offender helps explain why the offender committed the crime, then this factor can be said to have played a role in the commission of the offence. An offender’s explanation for a crime committed for money can enhance or mitigate personal culpability, although this is only part of the overall assessment that must be made in determining personal culpability for the purpose of sentencing which complies with the proportionality principle.

[46] In R. v. Jackson, 2018 ONSC 2527, [2018] O.J. No. 2136, Nakatsuru J. considered how systemic racism and background factors experienced by African-Canadians should be taken into account in sentencing of a Black offender. Nakatsuru J. considered the enhanced pre-sentence report that was before him that described the offender’s experiences with racism and his socio-economic disadvantage in his community to provide context for the analysis of the fit sentence to be given. Nakatsuru J. held, at para. 108, that careful, culturally appropriate, and sensitive assessments are necessary in analyzing and applying the sentencing principles to an African-Canadian offender. Nakatsuru J. noted that consideration of systemic, socio-economic and background factors that affect African-Canadian offenders was accepted as appropriate by the Court of Appeal in Hamilton and, in this regard, he quoted the following passage from the decision of Doherty J.A. in Hamilton, at para. 141:

There is nothing unique or new in the approach to sentencing outlined above. Trial judges have always entertained submissions to the effect that an offender is basically a good person whose crime is the product of a combination of circumstances, some of which are beyond the offender’s control or responsibility. Put in the language of proportionality, these arguments are directed at lessening the personal culpability of the individual offender. If the trial judge accepts such arguments, the sentence imposed will be less onerous than it would have been but for those arguments.

[47] Nakatsuru J. did not interpret the decision of Doherty J.A. in Hamilton to require the offender to show a direct causal connection between systemic racial or gender bias and the difficult socio-economic circumstances of the offender (Jackson, at para. 111).

[48] Counsel for Mr. Prince submits that systemic racism affecting Black offenders must be taken into account to provide context for the sentence be imposed, particularly as it relates to the offender’s criminal record. Counsel submits that a fit sentence for the firearm offence for Mr. Prince, when these factors are taken into account, is at the top end of a range of three to five years, but no higher. I take this submission to be that if I conclude that the proper range for this offence is higher than three to five years, as the Crown submits I should, the fit sentence for Mr. Prince is at the low end of the higher range.

[49] I was provided with an Enhanced Pre-Sentence Report (EPSR) for Mr. Prince for use at the sentencing hearing. The author of the report is a Registered Social Worker with a Master of Social Work and 15 years experience in the field of social work. The purpose of this report is to provide the court with the review of Mr. Prince’s personal history and social context. The report explored how various factors contributed to his trajectory into the criminal justice system. The author conducted multiple interviews with Mr. Prince and his partner, as well as individual interviews with his father and sister. These interviews explored the family dynamics, as well as Mr. Prince’s educational background, social relationships, economic status, character, and involvement with the criminal justice system. The report also identified, where applicable, Mr. Prince’s experiences of systemic racism.

[50] The EPSR describes Mr. Prince’s personal background. He is a 40-year-old Black man who was 37 years old when he was detained in relation to these offences. He is one of three biological children and the twin brother of his sister. Mr. Prince’s recollection is his early childhood included violence, as he was the recipient of frequent beatings for misbehaviour. His father had a calm demeanour, while his mother’s temperament generally reflected anger. After his parents divorced, Mr. Prince lived with his mother and would frequently receive beatings from his mother for wrongdoing she felt he committed. He did not experience beatings during visits with his father. Mr. Prince’s relationship with his mother was severed when he was 13 or 14 years old when, after he disobeyed his mother, his father assumed custody of him. It was years before Mr. Prince saw his mother again, and he does not have a relationship with her.

[51] The EPSR refers to Mr. Prince’s recollections of how systemic racism informed the negative interactions and discipline he experienced at school, where he reported being “mishandled” by some teachers and where he hit back to defend himself. When he attended secondary school in Brampton, Mr. Prince attended school with other Black students, and the majority of his teachers were white.

[52] When Mr. Prince lived with his father, he enjoyed freedom and independence. He received an allowance from his father, was permitted to socialize with his friends, and did not have a curfew. Mr. Prince was not close to his father’s wife and had a conflict with her when she searched his belongings and found some money and marijuana. To keep Mr. Prince separated from his father’s wife, Mr. Prince left the home with his father early in the morning and returned with him at night. During this time, Mr. Prince was required to find somewhere to stay and he varied between hanging out on school property, with friends, or loitering until school began. After school, he would socialize with his friends and, together, they would smoke and sell marijuana.

[53] Mr. Prince reported that his early experiences in the educational system led to feelings of exclusion and rejection. He believes that the physical methods of discipline he experienced by administrators, followed by placement in a special education class, occurred because he was a Black child.

[54] Mr. Prince became acclimated to “loitering” and this arrangement eventually became unsustainable for him. He reported that his father finally asked him to leave when he was 15 years old. Mr. Prince discontinued his education shortly upon leaving his father’s home.

[55] Mr. Prince reported various attempts to secure legal employment throughout the years. He reported that he obtained some work in a factory but found the pay insufficient. He spent a couple of years working for his father and their working relationship ended over a disagreement about Mr. Prince’s use of marijuana. When his working relationship with his father ended, Mr. Prince increased his involvement in the drug trade to facilitate his survival. He continued to work for his father periodically throughout the years, with his last attempt occurring in 2013 or 2014. At that time, he wanted to transition out of selling drugs. Mr. Prince explained that he worked for several months on a renovation project without sufficient compensation. Mr. Prince’s father recalls that his son was paid when he worked for him during this period. Mr. Prince disclosed that his partner provided him with some financial support, but out of desperation for sustainable income, he returned to the streets.

[56] The report describes that Mr. Prince initially began selling drugs to earn his own money while living with his father and his earnings enabled him to support himself, buy name brands, and help his friends who were financially unstable. Mr. Prince disclosed that selling drugs became a necessity when he was kicked out of his father’s home and that the reality of discontinuing his education meant limited access to employment and, as a young man on his own, he saw no other options for survival. Mr. Prince focused on “hustling” to learn the business of drugs from others. With his earnings, Mr. Prince sustained independent living for a period of time, before he became at risk of homelessness. He explained that he lacked the maturity to manage his money and overspent on material pleasures and socializing.

[57] As Mr. Prince’s relationship with his partner developed, they made plans for him to get off the streets. They decided that he would continue working for his father while saving money, and together, they discuss plans for entrepreneurship. Mr. Prince reported that it was difficult to focus on the plan when his compensation was insufficient. This made it difficult to avoid the lure of the streets, and he eventually resumed his work in the drug trade.

[58] Mr. Prince reported that he has been in a relationship with his partner since 2013, and they are parents to a three-year-old daughter who was less than a year old when Mr. Prince was arrested.

[59] The author of the EPSR notes that Mr. Prince has an identified skill set that would enable him to access gainful employment. Mr. Prince reports that he intends to revisit the business plan that he developed with his partner and to follow in the footsteps of his father by pursuing entrepreneurship. Mr. Prince’s father has invited Mr. Prince to work with him when he has dealt with his charges.

[60] In his letter to me given at his sentencing hearing, Mr. Prince states that the difficulties he has encountered as a result of decisions taken in his life relate to the fact that he was kicked out of his home and left to his own devices when he was a young person of 14 or 15 years of age. He explained how, through his interactions with the social worker who prepared the presentence report, he no longer feels bitterness and anger towards those who he felt had abandoned him, and he is able to start the path of reconciliation with them. Mr. Prince described the difficult conditions at the Toronto South Detention Centre where he is detained, and the particularly harsh conditions during frequent lockdowns. Mr. Prince states that he suffers from colitis, the symptoms of which are aggravated by the conditions of his detention. Mr. Prince describes that since the restrictions imposed as a result of the COVID-19 pandemic, he has become fearful and distressed because of his medical condition and vulnerability to infection.

Application of sentencing principles

[61] The fact that Mr. Prince is a mature adult offender with three prior convictions for possession of a loaded restricted firearm is a significant aggravating factor that would support a sentence at the higher end of the range. It is clear that these prior convictions did not deter Mr. Prince from this conduct. I also treat as an aggravating factor that when he was arrested, Mr. Prince was subject to a number of orders prohibiting him from possessing a firearm and these orders were ignored. Mr. Prince possession of the firearm was related to his possession of cocaine for purpose of trafficking and this fact, described by the Court of Appeal in Wong as a “toxic combination” also supports a sentence at the higher end of the range.

[62] I have also considered Mr. Prince’s personal circumstances involving his upbringing, his conflict with and physical beatings given by his mother, and the fact that he was on his own, without the supervision and support of his father, by the age of 15. I also consider Mr. Prince’s financial circumstances when he decided to sell drugs. These personal circumstances likely played a role in the commission of the offences, but I am mindful of the caution expressed in Hamilton, at para. 139, that these factors must be given less weight in cases where the seriousness of the offence is the pre-eminent consideration on sentencing, as in this case.

[63] I conclude that the fit sentence for Mr. Prince for the offence of possession of a loaded unregistered firearm is near, but below, the top end of the range. The fit sentence is eight years of imprisonment.

[64] When I consider the aggravating and mitigating circumstances in relation to the offence of possession of cocaine for purpose of trafficking, having regard to the passages from Graham to which I have referred describing the seriousness of this offence, I conclude that the fit sentence is two years imprisonment.

[65] The fit sentence for possession of proceeds knowingly obtained or derived as a result of the commission of an indictable offence is one year, to be served concurrently with the sentence for possession of cocaine for the purpose of trafficking. The fit sentence for the offence of possession of a firearm knowing that the serial number thereon had been defaced is one year, to be served concurrently with the sentence for possession of a loaded prohibited or restricted firearm.

[66] I apply the totality principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh, and I reduce the consecutive sentences for these offences to a total of nine years.

Credit for Presentence Custody

[67] Mr. Prince has been detained at the Toronto South Detention Centre for a period of 973 days from February 3, 2018 to today, October 8, 2020. He will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers calculated as 1.5 days of credit for each day of pre-trial detention. This credit amounts to 1,460 days, or 48 months (rounded), of credit.

Credit for harsh conditions in pre-sentence custody

[68] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal held that “... in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5:1 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused.”

[69] In R. v. Persad, 2020 ONSC 188, [2020] O.J. No. 95, Schreck J. explained the underlying rationale for enhanced credit, at para. 27:

It is now well established that particularly harsh presentence incarceration conditions can justify credit beyond the ordinary credit for presentence custody. This follows from the principles of individualization, parity and proportionality. Where an offender has been subject to particularly harsh presentence custody, he has been subject to consequences resulting from the offence that have a more significant impact on him. Like collateral consequences such as immigration consequences, this additional impact must be considered to ensure that the sentence is proportionate and tailored to the individual circumstances of the offender [citations omitted].

[70] In this case, Mr. Prince was subject to 321 days of full or partial lockdown during the period of his detention up to September 20, 2020. On March 16, 2020, the COVID-19 public health crisis became a publicly announced serious cause of concern for residents of Ontario. This is the appropriate date for the COVID-19 public health crisis to be considered for sentencing purposes. In the period from February 11, 2018 to March 15, 2020 there were 261 days of lockdown. From March 16, 2020 to September 20, 2020 (189 days), there were 60 days of lockdown.

[71] Evidence at the sentencing hearing showed that during normal operations, inmates are out of their cell for up to 13 hours. During normal operations, inmates have unrestricted access to yard, phone, shower and visits. Lockdowns are at the discretion of the superintendent and his designates, based on institutional needs and security concerns. During lockdowns, inmates are given 30 minutes to complete phone/shower and in some cases yard time. The superintendent may cancel phone and shower programs based on institutional needs and security concerns. At the Toronto South Detention Centre, two inmates are housed per cell. During lockdown, inmates have unrestricted access to medical care. Clothing changes are conducted twice per week and hygiene product is issued daily.

[72] Mr. Prince provided information through the EPSR of the conditions he has experienced in detention at the TSDC. Mr. Prince reported that during lockdowns, he is confined to his cell, with no access to showers, no telephone calls to his support system and restricted movement, over the course of several days. He expressed that these experiences create heightened feelings of isolation, and significantly impact his mental well-being. Mr. Prince expressed concern about COVID-19 spreading in the jail. He explained that protective gear such as masks, gloves or sanitizers have not been made available and that social distancing is not possible in a jail setting. This isolation and concern about illness has caused him to feel depressed. Mr. Prince was diagnosed with colitis when he was five years old, a chronic condition accompanied by symptoms such as pain, digestive issues and hemorrhaging. The symptoms are triggered by a poor diet and stress.

[73] In Persad, Schreck J. noted that enhanced credit given because of conditions at the TSDC has tended to be between one half and one day for each day spent in lockdown, in addition to the usual credit for presentence custody. Schreck J. referred to other cases in which judges had commented on the conditions at the TSDC, including persistent staff shortages leading to frequent lockdowns, conditions which, he concluded, had been ignored by the Ministry. Schreck J. considered the offender’s presentence custody as well as the Ministry’s persistent refusal to heed repeated admonitions of this court that those conditions are intolerable and decided that the offender was entitled to a further one and a half days of credit for each day of lockdown.

[74] The circumstances of the COVID-19 public health crisis adversely affect conditions of imprisonment, including at the TSDC. See R. v. Clarke, 2020 ONSC 3878, [2020] O.J. No. 2991, at para. 20. In Clarke, Kelly J. quoted the following passage written by Pomerance J. in R. v. Hearn, 2020 ONSC 2632, at paras. 15-16:

How does this [COVID-19 pandemic] impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

COVID-19 also affects our conception of the fitness of sentence. This is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lockdown conditions aimed at infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[75] I agree with these comments. In my view, the circumstances associated with the COVID-19 pandemic must be taken into account in determining a fit sentence, and they are properly considered as part of the determination of the Duncan credit to be given for particularly harsh presentence incarceration conditions.

[76] Based on the evidence before me, I give Mr. Prince a further credit of sixteen months because of the harsh conditions while in pre-sentence custody at the TSDC. This credit takes into account the 321 days of lockdown during Mr. Prince’s period of detention and it also takes into account the circumstances after March 16, 2020 associated with the COVID-19 pandemic.

Conclusion

[77] In conclusion, Mr. Prince is sentenced to a global sentence of ten years, reduced to nine years (108 months) to give effect to the principle of totality, less the following credits: Summers credit: 48 months; and Duncan credit: 16 months. When the credits (64 months) are deducted from the reduced global sentence of 108 months, Mr. Prince is required to serve another 44 months in custody.

[78] The sentence shall be recorded as follows:

Count

Offence

Sentence

1

Possession of a controlled substance, cocaine, for the purpose of trafficking.

1 year consecutive to Count 4, (but for principle of totality, I would have given 2 years) for a further 12 months to serve.

2

Possession of property or proceeds of property knowingly derived from commission of an indictable offence.

1 year, concurrent to Count 1.

3

Possession of a prohibited firearm while knowingly not being the holder of a licence and registration certificate.

Stayed.

4

Possession of a loaded prohibited firearm while knowingly not being the holder of a licence and registration certificate.

96 months, less 64 months pre-sentence custody credits, for a further 32 months to serve.

5

Possession of a firearm knowing that the serial number thereon had been defaced.

1 year, concurrent to Count 4.

[79] The following ancillary orders are imposed:

a. An order under s. 487.05 of the Criminal Code that Mr. Prince provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database;

b. A forfeiture order; and

c. An order under s. 109 of the Criminal Code for life.

[80] In his letter to me, Mr. Prince states that he has taken responsibility for his past mistakes which led to his interactions with the criminal justice system, and he intends to do better moving forward for his own sake and the sake of his family. He asks for a chance to reintegrate into society so that he can become the good citizen and father he is capable of being.

[81] Mr. Prince, you seem to be an intelligent man. You have the support of your partner. I hope that you have learned from your past mistakes and, upon your release, you will become the good citizen that you are capable of being.

Cavanagh J.

Released: October 8, 2020