COURT FILE NO.: CR-19-40000110-0000
DATE: 20200128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHEMAR MCLEAN
Stephen Bryne, for the Crown
Ayesha Abassi, for Mr. McLean
HEARD: January 17, 2020
B. Davies J.
REASONS FOR SENTENCE
A. Overview
[1] In January 2018, the Toronto Police obtained a warrant to search Mr. McLean’s apartment. When the police entered his apartment to execute the warrant, Mr. McLean was asleep in the bedroom. The police also found a loaded .45 calibre Glock handgun in Mr. McLean’s bedroom. Mr. McLean was arrested and charged with several firearms related offences.
[2] Mr. McLean was on bail at that time of his arrest. One of the conditions of his bail prohibited him from possessing any weapons.
[3] Mr. McLean pled guilty to possessing a loaded prohibited firearm without having a license to possess it. He also pled guilty to breaching his bail.
[4] Counsel do not agree on what sentence would be appropriate in this case. Crown counsel took the position that I should impose a 30-month sentence: 24 months for possessing the loaded firearm and 6 months for breaching bail. Defence counsel argued that the appropriate sentence is 21 months in custody: 18 months for possessing the loaded firearm and 3 months for breaching bail.
[5] Counsel do agree that Mr. McLean should be given 1.5 days credit for every day he spent in pre-sentence custody. Counsel also agree that Mr. McLean is entitled to enhanced credit to account for the inhumane conditions at the Toronto South Detention Centre (TSDC).
[6] The determination of a just and appropriate sentence is a highly individualized exercise. It involves a consideration of all the mitigating and aggravating factors as well as the applicable legal principles: R. v. Lacasse, 2015 SCC 64 at para. 58. In the end, the overarching principle is that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1.
[7] For the reasons that follow, I find that the appropriate sentence in this case is 2 years less a day: 20 months for possessing the loaded firearm and 4 months less a day for breach of probation. I also find that Mr. McLean is entitled to a total of 712 days of credit. Mr. McLean is, therefore, required to serve a further 17 days in custody. Mr. McLean will also be subject to a 2-year period of probation following the custodial portion of his sentence.
A. Appropriate Sentence for Possessing a Loaded Firearm
[8] Possessing a loaded firearm is an extremely serious offence. Handguns pose a serious risk to the public. They become even more dangerous when loaded. Mr. McLean had no business possessing a .45 Glock handgun for any reason.
[9] The Crown does not allege that Mr. McLean discharged the firearm or threatened the police with it while they were executing the warrant or had it in connection with any other criminal offences. If there was evidence that Mr. McLean used the loaded handgun in some way that put the police or public in further danger, that would be a significant aggravating fact. The absence of such evidence, however, is not a mitigating factor in this case. The mere possession of a prohibited loaded firearm is serious without evidence that it was used. By criminalizing simple possession of dangerous firearms, s. 95 of the Criminal Code intentionally allows the police to act before a gun is used to actually hurt or kill someone or in aid of some other criminal activity.
[10] Because of the danger posed by loaded firearms, the sentence I impose must, to the extent possible, further the goals of denunciation and deterrence.
[11] The Supreme Court of Canada struck down the mandatory minimum 3‑year sentence for possessing a loaded restricted or prohibited firearm as unconstitutional in 2015: R. v. Nur, 2015 SCC 15. The Supreme Court held that even without a mandatory minimum sentence, a 3‑year sentence will often be appropriate for those who carry a loaded prohibited or restricted firearm in public as a tool of his or her criminal trade. But for those whose conduct is less serious and poses less of a risk to the public, a 3‑year sentence may well be too high: Nur at para. 82. Nonetheless, cases decided since Nur make it clear that a conviction for possessing a loaded firearm will still attract a substantial prison term, even for first offenders.
[12] The sentence range for possessing a loaded restricted or prohibited firearm where the gun was not displayed in public and was not used in connection with other criminal activity is 18 months in exceptional circumstances to three years: R. v. Burke, 2018 ONSC 5183 at para. 52, R. v. Adan, 2016 ONSC 6753 at paras. 23. A sentence of two years or approaching two years will usually be imposed on a first offender found in possession of a loaded prohibited firearm, unless the gun was found in a public place: R. v. Ishmael, 2014 ONCJ 136 at para. 16.
[13] There are several important mitigating factors in this case that I must consider along with the seriousness of the offence.
[14] First, Mr. McLean is 23 years old and has no criminal record. This is a significant mitigating factor. While denunciation and general deterrence remain important, individual deterrence and rehabilitation are also important considerations when sentencing a youthful first offender. In addition, because Mr. McLean is a youthful first offender, I must impose the shortest term of imprisonment that is proportionate to the crime and the responsibility of the offender: R. v. Thurairajah, 2008 ONCA 91 at paras. 41 and 42, R. v. Priest (1990), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.) at pp. 543-544, R. v. Brown, 2015 ONCA 361 at para. 7 and R. v. Dirie, 2018 ONSC 5536.
[15] Second, Mr. McLean pled guilty. This was not, however, an early guilty plea. Mr. McLean had a preliminary inquiry and his trial was scheduled for March 2020. Mr. McLean would have been entitled to great mitigation of his sentence if he pled guilty earlier in the process. Nonetheless, I take Mr. McLean’s guilty plea as a sincere expression of remorse. The Crown acknowledges that there were triable issues, which Mr. McLean has given up by pleading guilty. By foregoing a trial, Mr. McLean has taken full responsibility for his conduct.
[16] Third, Mr. McLean has had a difficult life. He is one of four siblings. They were raised by a single mother. He saw his father only occasionally. His mother had to work more than one job to support her family. As a result, and meaning absolutely no disrespect to his mother, Mr. McLean was largely raised by his sisters, who were only a few years older than him. For many years, Mr. McLean kept himself busy playing basketball and hockey. He was passionate about sports. Sadly, Mr. McLean was hit by a car when he was 14 years old. The injuries he suffered were significant and stopped him from pursuing the sports he loved. At that point he started to struggle. He did not finish school and started to spend time with people who were not a positive influence on him. I accept that Mr. McLean has had a number of difficult experiences in his life. That does not excuse his criminal behaviour or mitigate his sentence. It does provide me with important context for understanding his conduct. It will also allow me to craft a sentence that will address his unique rehabilitative needs.
[17] Finally, Mr. McLean is now determined to make positive changes in his life. He wants to live with and reconnect with his father. Mr. McLean also wants to upgrade his education and start his own business. These are all admirable goals and I wish Mr. McLean every success. I applaud Mr. McLean for having a concrete, realistic plan. The issue for me is whether Mr. McLean has taken steps towards his own rehabilitation.
[18] Mr. McLean very recently completed a 1-hour educational program while in custody entitled “Supportive Relationships”, which will hopefully help him develop a positive relationship with his father and the rest of his family when he is released. He is to be commended for taking the initiative to complete that program. I do not have evidence that Mr. McLean has taken steps to be ready to achieve his other goals when he is released. I appreciate that his opportunities have been limited while in custody but Mr. McLean has not taken advantage of the other educational or counselling programs offered at the TSDC. Because I have evidence of only one completed program, this factor is of some but only limited value in terms of mitigating his sentence.
[19] Considering the aggravating and mitigating factors in this case, I find the appropriate sentence for possessing a loaded prohibited firearm is 20 months. Of all the cases provided to me by counsel, this case is most like R. v. Ishmael, supra, in which an 18-month sentence was imposed. In that case, the police found a loaded .45 calibre semi-automatic gun in a drawer in Mr. Ishmael’s bedroom. Mr. Ishmael pled guilty after dates were set for his preliminary inquiry but before the preliminary took place. In terms of the seriousness of the offence, the facts of these two cases are very similar. Mr. Ishmael was entitled to greater mitigation for his guilty plea as it came earlier in the process. Mr. McLean pled guilty after his preliminary inquiry and only a few months before trial. He is, therefore, entitled to less mitigation than was Mr. Ishmael received. I, therefore, find that a sentence of 20-months is appropriate.
B. Appropriate Sentence for the Breach of Bail
[20] Mr. McLean was found in possession of the loaded handgun while he was on bail with a condition that he not possess any weapon. Intentionally violating any court order is a serious offence. Violating a court order that was clearly made to protect the public is particularly serious: R. v. Adan, at para. 25. To reflect the seriousness of the charge, any sentence imposed will be consecutive to the 20 months imposed for possessing the loaded firearm. Making the sentences consecutive will send a clear message to Mr. McLean, and others, that the court expects its orders to be followed.
[21] I find that the appropriate sentence for the breach of bail charge, having regard to the mitigating factors already described, is 4 months less one day.
[22] The total sentence for Mr. McLean is therefore 2 years less a day.
C. Credit for Pre-sentence Detention
[23] In total, Mr. McLean has spent 385 days in pre-sentence custody. If he is given one and a half days of credit for each day he has been in custody, he has served the equivalent of 578 days (or just over 1 year, and 7 months).
[24] Mr. McLean’s lawyer argues that he should receive additional credit because of the conditions he experienced at the Toronto South Detention Centre. Particularly harsh conditions in pre‑sentence custody can justify giving an accused additional credit beyond what is provided for in the Criminal Code: R. v. Duncan, 2016 ONCA 754. Whether credit beyond the statutory maximum is appropriate depends on the conditions of pre‑sentence detention and the impact of those conditions on Mr. McLean.
[25] Mr. McLean has experienced 134 full or partial lockdowns during his time at the TSDC.[^1] In other words, the TSDC has been locked down more than 30% of the time that Mr. McLean has been in custody.
[26] Occasional lockdowns are to be expected in large correctional facilities like the TSDC. However, the number of lockdowns at the TSDC is a persistent, troubling issue. For three years now, judges from this court have been criticizing the TSDC for its unacceptable, oppressive, inhumane conditions and have been reducing sentences to compensate individuals who have had to endure those conditions: R. v. Persad, 2020 ONSC 188 at para. 29.
[27] Virtually every lockdown that Mr. McLean experienced was the result of “staff shortage.” This is totally unacceptable. The government has a duty to allocate adequate resources to ensure individuals in pre‑sentence custody, who are presumed innocent, are housed in humane conditions. Their failure to do so year after year reveals their utter indifference to the rights of individuals detained in pre‑trial custody.
[28] Repeatedly keeping people locked in their cells causes heightened frustration and tension among those housed at the TSDC. Violent altercations occur as a result. In addition, lockdowns prevent people held at the TSDC from using the phone to contact their lawyers and their family. I find that the lockdowns at the TSDC have had a significant negative impact on Mr. McLean.
[29] There is no formula for calculating the amount of enhanced credit to be given for unacceptably strict conditions in pre‑sentence detention. Factors including the nature of the conditions of detention (including any time spent in segregation), the amount of time the accused was subject to unacceptable conditions, the impact of the harsh conditions on the accused and evidence of institutional indifference to the rights of individuals detained in pre‑trial custody will all be relevant to an assessment of the amount of credit to be awarded in any particular case. Several decisions from this court have granted additional credit, generally in the range of one‑half to one full day for each day spent in lockdown in addition to the usual credit for presentence custody: R. v. Persaud, supra at para. 36.
[30] Counsel jointly suggested I give Mr. McLean a further one‑half day credit for each day he experienced a lockdown. Crown counsel argued that I should look at the actual time that Mr. McLean was locked in his cell on any given day. Some lockdowns were for part of the day; some lockdowns were for the full day. The Crown argues that credit given must reflect the actual deprivation Mr. McLean experienced. The Crown argues that Mr. McLean should be given less credit for those days on which he experienced only a partial lockdown than for days when he was locked down the whole day.
[31] Because of the persistence of the problem at the TSDC and the lack of institutional response to the problem despite repeated criticism from the Court, I am prepared to give Mr. McLean one day credit for each day he experienced a lock-down at the TSDC, whether it was a partial or full lockdown. The enhanced credit is intended to compensate Mr. McLean for the unacceptable conditions he endured at the TSDC. That cannot be measured simply by looking at the number of hours on a given day Mr. McLean was locked in his cell. The credit also accounts for the cumulative impact of repeated lockdowns, month after month. Mr. McLean is, therefore, entitled to 134 days of enhanced credit.
[32] Mr. McLean is entitled to a total of 712 days of credit (578 days for the statutory pre‑sentence credit plus 143 days of enhanced credit), which will be deducted from the sentence of two years less a day or 729 days. Mr. McLean is, therefore, required to serve a further 17 days in custody.
[33] In addition to the custodial sentence, Mr. McLean will serve two years of probation with the following terms, in addition to the statutory terms:
(a) Keep the peace and be of good behaviour;
(b) Report to a probation officer within 48 hours of your release from custody and thereafter as required;
(c) Live at an address approved of by your probation officer;
(d) Maintain employment or educational programs on a full-time basis, or the equivalent of a full-time basis if you are in school and working on a part-time basis;
(e) Attend counselling as directed by your probation officer; and
(f) Sign any releases required for your probation officer to monitor your compliance with the terms of probation.
[34] I also make an order under s. 109 of the Criminal Code prohibiting Mr. McLean from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and prohibiting Mr. McLean from possessing any other firearm, crossbow, restricted weapon, ammunition or explosive substance for a period of 10 years.
[35] Finally, Mr. McLean will be required to provide samples of his bodily substances for the purpose of forensic DNA analysis; Criminal Code s. 487.051(3). I am satisfied, given the nature of the offence and the circumstances in which it was committed, that it is in the best interests of the administration of justice for such an order to be made. I have considered the fact that Mr. McLean has no criminal record. However, on balance, I am satisfied that the seriousness of the firearm offence justifies the order.
B. Davies J.
Released: January 28, 2020
COURT FILE NO.: CR-19-40000110-0000
DATE: 20200128
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N;
HER MAJESTY THE QUEEN
– and –
SHEMAR MCLEAN
REASONS FOR sentence
B. Davies J.
Released: January 28, 2020
[^1]: Mr. McLean was also held in segregation for 3 days because he was found in possession of contraband. Because Mr. McLean was put in segregation for disciplinary reasons rather than for administrative reasons, I will not consider the days he spent in segregation when deciding how much additional credit he deserves.