G. ROBERTS, J.:

Overview

[1] Following a 3 day trial, I found Chaddrick Brown guilty of being in possession of a Browning 9mm handgun in his car. The handgun was loaded with an over-capacity magazine and a cartridge in the chamber. Mr. Brown admitted during the trial that he was not authorized to possess the handgun or the over-capacity magazine or the cartridges, and was bound by two different s.109 weapons prohibitions. My conclusion meant that I found Mr. Brown guilty of all the charges in the indictment, which included offences under the following sections of the Criminal Code: 95(1), 92(1), 92(2), 94(1) and two counts of 117.01(1).

[2] Mr. Brown was arrested in relation to the offences at issue on January 10, 2019 and has been in custody ever since. Near the end of the preliminary inquiry, Mr. Brown pleaded guilty to possession of cocaine and fentanyl for the purpose of trafficking in relation to drugs found at the same time as the firearm at issue on this sentencing. On March 20, 2020, Justice Hogan sentenced Mr. Brown to the equivalent of 2 years, 3 months and 10 days (the actual time spent in custody was 1 year, 2 months and 10 days but enhanced credit was given for harsh conditions of custody).

[3] The Crown seeks a 4 year sentence on the s.95 offence plus a further 18 months consecutive in relation to the s.117.01 breach of weapons prohibitions. When I add this 5 ½ year sentence to the sentence of 2 years, 3 months and 10 days that Mr. Brown received when he pleaded guilty to the drug offences arising from the same transaction, I arrive at a global sentence of 7 years, 9 months and 10 days.

[4] Defence counsel seeks a global sentence for all the conduct Mr. Brown was found committing on January 10, 2019 (possessing the loaded handgun while prohibited and the drugs) of 5 years. This would require a sentence of 2 years, 8 months and 20 days on the handgun counts.

[5] Both counsel agree that Mr. Brown has served 215 days of pre-sentence custody to the sentencing date of October 22, 2020 (March 21, 2020 to October 22, 2020), or 7 months, for which he should be given credit at the statutory of 1.5:1 ratio. Both counsel also agree that the pre-sentence custody before this time has been accounted for in Justice Hogan's sentence on the drug offences.

[6] Both counsel agree further that for 56 days of the 215 days of pre-sentence custody, Mr. Brown was subject to some form of lock-down, even if only for a brief period. It is the Crown position that no basis has been established for enhanced credit. It is the defence position that "some modest credit" should be provided. In addition, defence counsel requested some "modest enhancement" to reflect harsher conditions due to COVID-19, but "nothing like that given to elderly, asthmatic people". I do not understand the Crown to take any position with respect to enhanced credit for harsh conditions due to COVID-19.

[7] In all the circumstances I conclude that a sentence of 4 years is fit and appropriate, less credit for time served, less credit for harsh conditions of pre-trial custody, including the effect of COVID-19, and less a 10 day adjustment I will explain below. When I add this to the 2 year, 3 month and 10 day sentence Mr. Brown already received in relation to the drugs, the global sentence would be 6 years and 3 months.

Circumstances of the Offence

[8] On January 9 and 10, 2019, the Toronto police had Mr. Brown under surveillance. On the afternoon of January 9, they saw Mr. Brown engage in what appeared to be two hand-to-hand drug transactions. On the evening of January 9, the police obtained a search warrant for Mr. Brown's home, apartment 806 of 100 Lotherton Pathway in Toronto, and his rental car, black four-door Honda Civic CDYN 014. When Mr. Brown got into his car around 12:35 a.m. on January 10, 2019 the police immediately arrested him and then searched his apartment, and his car. During their search of both places, they found a total of over 10 grams of cocaine, and almost 4 grams of fentanyl, two cell phones, and two digital scales. One package of cocaine was found on the floor mat beneath the driver's seat of the car. Both cell phones were found in the car. The rest of the drugs and the two digital scales were found in Mr. Brown's bedroom, broken into packages of small amounts, in the pocket of jeans hanging on the back of his door, and hidden underneath clothing in his dresser. The handgun was found underneath the mat beneath the driver's seat. It was lying on its right side, with the handle lying next to the right edge of the mat parallel to the edge of the mat and the centre console (see ex 25 from the trial). The handgun was loaded with an over-capacity magazine. The hammer was cocked back with a bullet in the chamber. It was a double action trigger: an initial pull of the trigger would cock the hammer and place a bullet in the chamber; a second pull would fire the bullet. In the position it was found, the gun was ready to fire with a slight squeeze of the trigger. No ammunition, or anything gun related, was found in Mr. Brown's home.

[9] As noted, Mr. Brown pleaded guilty to possession of cocaine for the purpose of trafficking near the end of the preliminary inquiry. He then ran a very focused trial during which the sole issue was whether the Crown could prove beyond a reasonable doubt that he was in possession of the handgun. He admitted he was dealing drugs at the time he was arrested, but testified it was meant to be a short- term thing; the gun was not his and he did not know about it. For written reasons (R. v. Brown, 2020 ONSC 4888), I rejected his evidence, and found that the Crown had proven beyond a reasonable doubt that the only reasonable conclusion that could be drawn in the circumstances was that Mr. Brown knew about and controlled the gun, thus was in possession of it.

[10] The Crown lead evidence of statistics kept by the Toronto Police Service (TPS) about illegal gun discharges in Toronto. These statistics suggest that the number of illegal gun discharges in Toronto is increasing. I did not put weight on these statistics in considering the appropriate sentence in this case. I did not need to. Cases from this court and the Court of Appeal are replete with moving and emphatic statements about the serious problem loaded handguns pose to the safety of the citizens of Toronto, especially when possessed in the context of dealing hard drugs. Just one recent example is R. v. Omoragbon, 2020 ONCA 336, in which the Court of Appeal upheld a lengthy penitentiary sentence for a young man who was dealing drugs out of his car while armed with a loaded handgun. I will come back to this case below.

Rule Against Multiple Convictions

[11] The rule against multiple convictions (the "Kineapple" principle) prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same, i.e. there is both a factual and legal nexus. In such cases the accused should only be convicted of the most serious offence, and the other offences should be conditionally stayed: R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 1986 CanLII 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.).

[12] In this case a single event or transaction gives rise to all the charges: Mr. Brown being found in possession of a loaded handgun in a car. The most serious offence in relation to this event is possession of a loaded prohibited handgun contrary to s.95 of the Criminal Code. Many judges of this court have found that the rule against multiple convictions does not preclude an accused from also being convicted of a s. 92(1) offence, as the latter involves the additional element that an accused know he does not have the requisite license or registration certificate: R. v Le, 2014 ONSC 4288 at paras.16-21. This is unquestionably true. But in the circumstances of this case, I believe that the gravamen of both offences is substantially the same. The accused was bound by two s.109 weapons prohibition at the time of his possession, making a license or registration impossible. Thus the additional element contained in s.92 that an accused know he has no license or registration adds nothing in the circumstances of this case. As I result, I will follow R. v. Lucas, 2010 CarswellOnt 11147, 88 W.C.R. (2d) 385, and conditionally stay the s.92(1) offence.

[13] The s.92(2) offence is distinct in so far as it involves the over-capacity magazine. The s.94(1) offence is also distinct, as it involves that the accused being in a motor vehicle in which he knew there was a firearm. The two s.117.01(1) offences are also distinct, involving breaches of two separate s.109 weapons prohibition. As a result, none of these offences will be conditionally stayed.

Circumstances of the Offender

[14] Mr. Brown is currently 30 years old. He was 28 at the time of the offences. He has the following criminal record:

2013-06-27 armed robbery (2 charges) 8 months on each concurrent

forcible confinement (2 charges) 2 months on each concurrent

(22 months pre-sentence custody)

2018-03-15 assault with a weapon 1 day & 18 months probation

(340 days pre-sentence custody)

[15] The Crown has provided the reasons for judgment and sentence in relation to Mr. Brown's prior conviction for robbery (see 2013 ONSC 2349 and 2013 ONSC 3321). It was a home invasion robbery that Mr. Brown committed with three other men, two of whom were young persons at the time. Mr. Brown was not armed, but the other three men were armed with what appeared to be handguns. The guns were not fired or recovered, and the trial judge was not satisfied beyond a reasonable doubt that they were real. But the other men used the handguns to intimidate and coerce the occupants of the home, including, at one stage, one of the men pointing what appeared to be a handgun at a 3 year old child in order to coerce the child's mother to cooperate. The trial judge found that the robbery was planned, and Mr. Brown was a party to the robbery and the forcible confinement.

[16] I understand that the weapon used in the assault with a weapon was a liquor bottle.

[17] A pre-sentence report (PSR) was prepared in 2013 in relation to Mr. Brown's participation in the robbery. It noted that Mr. Brown grew up in a relatively stable household in a poor and tough neighbourhood. He never knew his father, and money was always tight, but his mother was loving and supportive. Mr. Brown was a decent student, but when he started high school he became involved with the "wrong crowd" and starting drinking, smoking marijuana, and missing class. He ended up dropping out of high school. He reported doing general labour in the summer of 2011, but he was not working or going to school before being arrested on the home invasion robbery. He reported smoking marijuana daily and felt that it resulted in his lack of motivation.

[18] Mr. Brown apparently viewed the conviction for home invasion robbery as a wake-up call and was committed to turning his life around, beginning with completing high school. According to the PSR, he "reported that he has about 22-23 credits and requires 30 to graduate. His goal upon release from custody is to finish his schooling." He also planned to address his use of marijuana because he believed it was affecting him and preventing him from pursuing his goals.

[19] Sadly, Mr. Brown fell far short of his goals. A PSR prepared in relation to the instant offences, over 7 years later, is eerily similar, except Mr. Brown's goal is now further away:

Mr. Brown remains 20+ credits short of his graduation requirements. The subject reported having taken regular stream courses and having no academic struggles while in high school except for skipping classes which led to his failing of the same. He claimed no diagnosis of a learning disability.

The subject stated that he was not employed at the time of incarceration and had no income. He reported having had a short and varied work history. He stated that the longest he was employed at one place has been 4-5 months….

With regards to future endeavors, the subject communicated that he would like to complete his GED however, does not have a desire for further schooling beyond that. Ms. Spencer [Mr. Brown's mother] indicated that the interactions the subject had with his peers from the neighbourhood and school have had a negative influence on the subject and were the reason for his decline in school, lack of employment and criminal involvement.

[20] The current PSR also reports that, prior to being incarcerated, Mr. Brown gambled, and used marijuana, cocaine and alcohol. He spent most of his time "watching TV, gambling, hanging out with friends and drinking." Mr. Brown has acknowledged that he has an issue with alcohol and substance use, and expressed a willingness to seek help.

[21] The current PSR notes that Mr. Brown's mother, Yvette Spencer, remains supportive. He also has at least one pro-social contact in the community; Temesgen Ghebremicael, who testified at the trial, remains a positive and supportive influence. Mr. Ghebremicael apparently advised that he "is able and willing to support the subject's eventual community reintegration in any way he can".

[22] I note that there was a gap between the robbery and the assault with a weapon charge of approximately three years. This is not an insubstantial period of time in the life of someone in their early 20's. The PSR notes that while on probation for two years beginning in December of 2013, Mr. Brown was reported to "make efforts to attend job counselling appointments that were arranged for him". In addition, he completed 150 community service hours without issue. Unfortunately, these efforts fell short. Mr. Brown did not complete his GED in this period, nor did he develop any kind of work history.

Range of sentence

Range of sentence for possession of prohibited or restricted firearm with ammunition

[23] Section 95 of the Criminal Code provides that every person who possesses a prohibited or restricted firearm, either loaded, or together with readily accessible ammunition that is capable of being discharged in the firearm, without the correct authorization and registration, is guilty of an indictable offence. Where the offence is proceeded with by indictment, it is punishable by a maximum term of imprisonment not exceeding ten years. The section contains a 3 year mandatory minimum sentence for a first offence, and a 5 year mandatory minimum sentence for a subsequent offence.

[24] Section 95 captures a broad spectrum of conduct, ranging from technical breaches more akin to regulatory offences posing little risk to the public, to truly criminal conduct placing the public at great risk of significant and immediate harm. In R. v. Nur, 2013 ONCA 677, aff'd 2015 SCC 15, Chief Justice McLachlan endorsed the following description of the offence by Justice Doherty:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a license and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that license. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence. (from para.51 of the Court of Appeal decision)

[25] Both the Ontario Court of Appeal and the Supreme Court of Canada struck down the 3 year mandatory minimum sentence for a first offender, as it would amount to cruel and unusual punishment, if applied at the "regulatory" end of the spectrum. However, every court that heard Nur affirmed that conduct at the criminal end of the spectrum will attract exemplary sentences that emphasize deterrence and denunciation. Justice Doherty, at para.26, explained that his conclusion that the mandatory minimums were unconstitutional did not:

… 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."

Justice McLachlan endorsed this conclusion, noting at para 120, "It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles."

[26] Since Nur was decided, the Court of Appeal has continued to affirm that those who commit s.95 offences falling at the "truly criminal conduct" end of the spectrum can expect exemplary sentences emphasizing deterrence and denunciation. In the trial decision in Nur, Justice Code noted that the range of sentence for a first offence of possession of a loaded handgun simpliciter (without additional convictions such as for drug trafficking) prior to the enactment of the mandatory minimum "tended to be between two years less a day and three years imprisonment", with much longer sentences for recidivists: R. v. Nur, 2011 ONSC 4874 at para.42. In R. v. Graham, 2018 ONSC 6817, at paras. 38 Justice Code confirmed this range for the "well-situated first offender" relying in particular on R. v. Smickle, 2014 ONCA 49. In Smickle, originally heard together with Nur, the Court of Appeal confirmed that a sentence of two years less one day was the appropriate sentence on a Crown appeal. Mr. Smickle was found in possession of a loaded firearm while alone in his cousin's apartment. He was 27 years old, had no criminal record, and there were substantial mitigating circumstances.

[27] Justice Code confirmed that the range is between 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". The Court of Appeal rejected the argument that the defunct mandatory minimum improperly inflated the bottom of the appropriate range, concluding instead that "recent sentences reflect Canadian society's intolerance for gun crime and are in keeping with the direction given by the Supreme Court of Canada": R. v. Ellis, 2016 ONCA 598 at paras.77-79. In these kind of cases, the Court of Appeal has consistently upheld sentences in the range identified by Justice Code even where the offender is young and does not have a criminal record: R. v. Marshall, 2015 ONCA 692; R. Mansingh, 2017 ONCA 68; R. v. Omoragbon, supra, at paras.22-24.

[28] For those who are repeat offenders in relation to s.95, the range post-Nur is between six to nine years. In R. v. Slack (2015), 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.) a total sentence of ten years was upheld, consisting of eight years for a repeat breach of s.95, plus two years consecutive for breach of weapons prohibition orders. See also Graham, at para.39, and R. v. Hector, 2014 ONSC 1970.

[29] As noted, the Crown drew my attention in particular to R. v. Omoragbon, supra, in which the Court of Appeal upheld a global sentence of 7 years for a 23 year old (21 at the time of the offences) who was found to have been in a car containing a loaded .38 calibre revolver, five different drugs, including cocaine and a heroin and fentanyl mix and cash found to be proceeds of crime. Mr. Omoragbon had a record for property offences, fail to comply, carrying a concealed weapon and flight from police. His longest previous sentence was 10.5 months. Mr. Omoragbon appealed on the basis that the sentence was too high, especially in light of his young age. The Court of Appeal disagreed, noting:

[22] Yet again, this is a case involving that toxic combination of drugs and a handgun. Cocaine and crack cocaine. And fentanyl. A loaded .38 calibre handgun. In a motor vehicle, aptly characterized as a mobile pharmacy. Each a pernicious and persisting threat to the safety, welfare and indeed the lives of members of our community: R. v. Wong, 2012

[23] These offences command exemplary sentences. The predominant sentencing objectives are denunciation and deterrence. Substantial jail terms are required even for youthful first offenders: R. v. Mansingh, 2017 ONCA 68, at para.24.

[24] We do not gainsay the importance of the sentencing objective of rehabilitation in respect of youthful offenders. But its influence on the ultimate determination of a fit sentence is a variable, not a constant. In the absence of any realistic rehabilitative prospects, its impact on the nature and length of a sentence may be attenuated. [emphasis added]

[30] Defence counsel noted that the range of sentence was well set out and did not take me to specific cases, but commended the reasoning process in R. v. Tewolde, 2020 ONSC 532. Having taken up defence counsel's suggestion to consider this case, it is certainly well-reasoned, but I do not think it has great bearing on this case. Justice Dunphy carefully explains how and why he factored in the accused's youth and demonstrated rehabilitative potential in fashioning a fit sentence for a gun offence otherwise requiring an exemplary sentence. Mr. Tewolde was 22 years old (21 at the time of the offences) and completed his GED while in pre-sentence custody at the Toronto South Detention Centre (TSDC). However, Mr. Brown is neither youthful, nor has he demonstrated rehabilitative potential. If anything, he has demonstrated a need for specific deterrence.

Principles of Sentencing

[31] The principles of sentencing are now largely codified. Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing as follows:

[T]o protect society and to contribute…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;

(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.

[32] Section 718.1 expressly notes that the "fundamental principle" of sentencing is that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender".

[33] Section 718.2 sets out other sentencing principles which also must be taken 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…[ expressly listing a number of aggravating circumstances none of which appear to apply in this case];

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

(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.

[34] When sentencing for multiple offences, especially where the totality principle is engaged, the Court of Appeal has recommended first determining a global sentence, then assigning sentences for each offence, and determining whether they are concurrent or consecutive: R. v. R.B., 2014 ONCA 840; R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont.C.A.). It is not possible to directly fashion a global sentence in this case, as Mr. Brown has already been sentenced separately in relation to the drug offences. But it is important to keep the drug sentence in mind, and what the theoretical global sentence would be with it included, in order to account for the principle of totality.

Aggravating Circumstances

[35] The aggravating circumstances in relation to the s.95 offence include the following:

• Loaded handguns, and the damage they cause, are a scourge in our community.

• Mr. Brown was involved in street-level drug trafficking, suggesting he possessed the loaded handgun for an unlawful purpose, situating the s.95 offence squarely at the true crime end of the s.95 spectrum.

• The handgun was inside a car that Mr. Brown admitted he used to traffic drugs. The way it was found suggests it was virtually in use by Mr. Brown: quickly and easily accessible, fully loaded with an over-capacity magazine and a cartridge in the chamber, and ready to fire with a slight squeeze of the trigger.

• Mr. Brown has a criminal record, including offences of serious violence, but not involving him personally using or possessing a firearm.

• Mr. Brown was on probation at the time of the offences.

• Mr. Brown was subject to two separate firearms prohibitions at the time of the offences.

Mitigating Circumstances

[36] The mitigating circumstances include the following:

• Mr. Brown has served a significant period of time in pre-sentence custody, some under lock-down due to staff shortages, and added restrictions due to COVID-19.

What is a fit sentence in all the circumstances?

[37] The s.95 offence in this case falls at the true crime end of the s.95 spectrum attracting an exemplary sentence prioritizing denunciation and deterrence. The handgun was loaded with an over-capacity magazine, and had a cartridge in the chamber. It was ready to fire with a slight squeeze of the trigger, and posed a significant risk to members of the public, the police and Mr. Brown himself. Mr. Brown admitted that he was trafficking cocaine and fentanyl at the time he was found in possession of the handgun in his car, including out of his car. I am satisfied that Mr. Brown had the loaded handgun to further his drug-dealing.

[38] As noted, Mr. Brown pleaded guilty to possession of cocaine and fentanyl for the purpose of trafficking, and was sentenced to an effective sentence of 2 years, 3 months and 10 days. Notwithstanding that the drug offences are part of the same transaction as the firearm offences, both counsel accept that they are distinct offences, reflecting different "legally-protected interests", and thus command distinct consecutive sentences: R. v. Graham, at para.26; R. v. Crevier, 2013 ONCA 2630 at paras.128-9.

[39] At the same time, both counsel agree that the principle of totality is very important in this case. Although the drug offences were dealt with separately, the reality is that Mr. Brown was taken into custody in relation to both the drugs and the handgun on January 10, 2019, and remains in custody to this day. The total sentence in relation to all this conduct must be carefully scrutinized to make sure it remains proportionate to the circumstances of the offence and the offender, and is not "crushing": R. v. C.A.M., 1996 CanLII 230 (SCC), [1996] 1 SCR 500; R. v. Li, 2009 BCCA 85.

[40] The fact that Mr. Brown possessed the drugs for the purpose of trafficking factors into the sentence on the handgun in so far as it is part of the factual matrix that brings the s.95 offence to the serious end of the s.95 spectrum. In other words, the presence of the drugs, and the fact that Mr. Brown possessed them for the purpose of trafficking, are part of the all the circumstances that inform my conclusion that Mr. Brown was in possession of the handgun for a criminal purpose. But I do not consider the drugs, or the fact that Mr. Brown possessed them for the purpose of trafficking, to be an aggravating circumstance in relation to the s.95 offences. That would be double-counting.

[41] For the last six months, COVID-19 has made Mr. Brown's time in pre-sentence custody harder. Initially, between March and June, it resulted in significant restrictions, including preventing Mr. Brown's mother, who had been a regular visitor, from visiting Mr. Brown. The restrictions have lifted in many respects, and I am told visits are now possible, but restricted to once a week. However, conditions of custody remain harsher because of greater restrictions aimed at preventing infection. Further, despite precautions, the reality of communal living is that inmates are at greater risk of contracting the virus. Even if this risk never manifests, it exacts a psychological toll, especially as inmates have little ability to control exposure: R. v. Hearns, 2020 ONSC 2365. I will address below the extent to which COVID-19 should result in enhanced credit for pre-sentence custody. At present, however, I acknowledge that it is a collateral consequence which will make whatever sentence I impose somewhat harsher, at least for the near future. As a result, it factors into what is a fit sentence in all the circumstances, though it cannot justify reducing the sentence to a point where it is not proportionate to the gravity of the offence or the blameworthiness of the offender: R. v. Suter, 2018 SCC 34; R. v Morgan, 2020 ONCA 279; R. v. Hearns, supra.

[42] I agree with the Crown that a fit sentence on the s.95 offence would be four years. This is squarely in the middle of the range for a first s.95 offender who possesses an illegal firearm for a criminal purpose. I also agree with the Crown that specific deterrence is important in this case. Mr. Brown was given a very lenient sentence on the home invasion robbery at least in part because he was a youthful first offender who had learned his lesson and was committed to getting his life on track. Sadly, as noted, he has not done that, yet. And he is no longer a youthful first offender. In addition, at the time of the offences, he was only 6 months into an 18 month probation order, which would have included the statutory condition that he keep the peace and be of good behavior. He was also subject to two separate firearms prohibitions.

[43] At the same time, Mr. Brown remains a relatively young man with support in the community. He and his mother are supportive of each other, and he has at least one pro-social friend, Mr. Gehbremicael, who remains supportive of him. I am also mindful that Mr. Brown pleaded guilty to the drug offences, albeit at relatively late stage. He also ran a focused and efficient trial with respect to possession of the handgun.

[44] Notwithstanding that I agree with the Crown that four years is a fit sentence on the s.95 offence, when I combine this number with the over two year sentence on the drugs, and the need for a consecutive sentence on the breach of the weapons prohibition orders, I find the resulting total sentence of close to 8 years too high in all the circumstances. Instead I find that a fit global sentence for all the criminal conduct would be 6 years and 3 months. Thus, in light of the principle of totality, the sentence on the s.95 offence must be decreased to 3 years.

[45] I also agree with the Crown that the appropriate sentence for the breach of firearms prohibitions is 18 months but, again, because of totality, I would reduce it to one year. The authorities are clear that this sentence must be consecutive in order for prohibition orders to have real meaning: R. v. Graham, at para.41; R. v. Ellis, 2013 ONSC 3092, aff'd R. v. Ellis, 2016 ONCA 598.

[46] When I add the four year sentence I would impose to the 2 year 3 month and 10 day sentence already imposed in relation to the drug charges I arrive at a global sentence of 6 years and 3 months and 10 days for the criminal conduct Mr. Brown was found committing on January 10, 2019. I subtract a further 10 days off the sentence I impose so it matches what I find to be a fit sentence.

Credit for Pre-Sentence Custody

[47] As noted at the outset, there is no dispute that Mr. Brown has spent 215 days (or approximately 7 months) in pre-sentence custody, and that he is entitled to credit for that time at a multiplier of 1.5 based on s.719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 26. This calculation yields a credit of 323 days (rounded up).

Enhanced credit due to harsh conditions of presentence custody

[48] Harsh conditions of presentence custody can provide a basis for enhanced credit beyond the ratio of 1.5:1 set out in s.719(3.1) of the Criminal Code. In determining whether this is appropriate, both the conditions of the presentence custody and their effect on an accused should be considered. The Court of Appeal has repeatedly held that evidence is required, recently noting that enhanced credit for lockdown days "is neither an entitlement nor routinely granted upon the filing of institutional records": R. v. Duncan, 2016 ONCA 754 at para.6; R. v. Omoragbon, supra, at para.32.

[49] As noted, defence counsel requested "modest" credit for harsh conditions of pre-sentence custody due to both lock-downs and the COVID-19 pandemic. Defence counsel filed a log showing that on 56 days Mr. Brown was subject to some form of lock-down, and commended Justice Hogan's analysis of the effect of the lock-downs. The PSR noted that Mr. Brown's mother had been visiting Mr. Brown in custody, but when the province shut down due to the pandemic, visits were no longer permitted. Mr. Brown explained that the "main COVID time" of March to June was bad, with no visitors, and the detainees hardly got out. Those restrictions have eased, but Mr. Brown tells me visitors are still restricted to once a week. As noted above, I accept that the forced communal living involved in detention placed Mr. Brown at greater risk of contracting the virus, and the fact of this risk, in and of itself, brought additional stress and anxiety. During the trial I was struck to the extent Mr. Brown sought to control his environment and protect himself; he always wore his mask, even when protected by plexiglass.

[50] Justice Hogan quoted extensively from R. v. Persad, 2020 ONSC 188 in which Justice Schreck explains that harsh conditions of custody can amount to a collateral consequence which should be taken into account in order to fashion a sentence which is fit in all the circumstances. In addition, Justice Schreck adopted the following descriptions from various cases to describe the situation at the TSDC: "unacceptable, shocking, deplorable, harsh, oppressive, degrading, disheartening, appalling, Dickensian, regressive and inexcusable."

[51] There is no controversy that Toronto, was (and remains) in the midst of a pandemic due to the spread of the COVID-19 virus. As noted, defence counsel readily acknowledged that Mr. Brown is neither old nor asthmatic, but urged that he did suffer some additional hardship due to the pandemic. For the reasons I have set out, I accept that COVID-19 made Mr. Brown's time in presentence custody harsher, especially during the general societal lock-down period from March to June.

[52] In the particular circumstances of this case, where Mr. Brown was in pre-sentence custody during the initial almost complete societal lockdown due to COVID-19, I conclude that harsh conditions of presentence custody should be recognized by granting 150 days of additional credit.

[53] When I subtract credit for pre-sentence custody, the remaining sentence is 977 days. I arrived at this number as follows:

4 years custody (minus 10 days) = 1450 days

Credit for PSC = 323 statutory credit + 150 enhanced additional credit = 473 days

1450 – 473 = 977 days left to serve or 2 years and 247 days

Ancillary Orders

[54] A lifetime weapons prohibition order is mandatory under s.109(1)(b) of the Criminal Code.

[55] Possession of a prohibited weapon is a secondary designated offence where proceeded with by indictment for the purpose of a DNA order pursuant to s.487.051(3) of the Criminal Code, and I conclude it is appropriate in this case.

[56] The firearm, overcapacity cartridge, ammunition and drugs seized and detained in this case are to be forfeited to Her Majesty in right of Ontario and thereafter disposed of as directed by the Attorney General or otherwise dealt with in accordance with the law. Mr. Brown's property, which is not required for any investigation or proceeding, is to be returned to him or his designate.

Conclusion

[57] In sum, the total 4 years minus 10 days sentence will be allocated across the counts for which there was a conviction, and reduced by the pre-sentence custody, as follows:

Count 1 - s.95(1) offence – 3 years (minus credit for 365 days pre-sentence custody);

Count 2 - s.92(1) offence - conditionally stayed;

Count 3 - s.92(2) offence - 3 years concurrent;

Count 4 - s.94(1) offence – 3 years concurrent;

Count 5 - s.117.01(1) offence in relation to the s.109 weapons prohibition imposed June 27, 2013 – 11 months and 20 days consecutive (minus credit for 108 days pre-sentence custody);

Count 6 - s.117.01(1) offence in relation to the s.109 weapons prohibition imposed March 15, 2018 – 11 months and 20 days concurrent.

G. ROBERTS, J.

RELEASED: October 22, 2020

R. v. Brown, 2020 ONSC 6355

Case Summary

G. ROBERTS, J.:

Overview

Circumstances of the Offence

Rule Against Multiple Convictions

Range of sentence for possession of prohibited or restricted firearm with ammunition

Principles of Sentencing

Aggravating Circumstances

Mitigating Circumstances

What is a fit sentence in all the circumstances?

Credit for Pre-Sentence Custody

Enhanced credit due to harsh conditions of presentence custody

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 8

Legal Tests 2

Legislation 1