Court File and Parties

COURT FILE NO.: CR-20-50000270-0000 DATE: 20210504

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

bill allison and kamar cunningham

Counsel: S. Scratch and C. Otter, for the Crown R. Rusonik, for Mr. Allison J. Struthers, for Mr. Cunningham

HEARD: February 24 and March 25, 2021

KELLY J.

REASONS FOR SENTENCE

[1] Mr. Bill Allison and Mr. Kamar Cunningham were charged with several criminal offences arising from an investigation of organized crime in the City of Toronto and surrounding areas. The investigation was focused on the Five Point Generals and their associated groups. It was code-named “Project Patton”.

[2] A judge authorized the Toronto Police Service (“TPS”) to intercept and record the telephone calls and communications of several individuals between March 6, 2018 and June 21, 2018. As a result of this authorization, police intercepted calls and texts involving Mr. Allison and Mr. Harris Poyser. The intercepted communications also captured discussions with Mr. Ernest Wilson (“Biggs”), Mr. Kareem Lewis and Mr. Cunningham.

[3] At trial,[^1] Messrs. Allison and Cunningham agreed that there was a criminal organization that included Mr. Poyser, Mr. Lewis, “Biggs” and “Apache”. Mr. Poyser has pleaded guilty to several offences arising from these incidents and was recently sentenced to 15 years in custody. Messrs. Lewis and Biggs are now deceased.

[4] The criminal organization imported firearms (and narcotics) into Canada from the United States of America (“U.S.A.”). They were transported to Toronto. It was alleged, and I found, that the following firearms ended up in the possession of Messrs. Allison and Cunningham to sell:

a. April 6, 2018: five firearms (one of which was given to Mr. Allison and offered for sale);

b. April 20, 2018: A shipment of firearms (two of which were given to Mr. Allison and offered for sale); and

c. May 7, 2018: 29 firearms (which were distributed to Messrs. Cunningham and Lewis to sell. For purposes of sentencing, it is agreed that Mr. Cunningham received 19 of those firearms and sold them within a 48-hour period).

[5] At the conclusion of the trial, I found Messrs. Allison and Cunningham guilty of the following offences:

Count	Defendant	Offence	Criminal Code Offence
1	Messrs. Allison and Cunningham	Firearms trafficking pursuant to s. 99(1) for the benefit of or at the direction of or in association with a criminal organization.	s. 462.12
2	Mr. Cunningham	Participation in the activities of a criminal organization for the purpose of enhancing the ability of the organization to commit the offence of importing firearms contrary to s. 103(1) of the Criminal Code.	s. 467.11
3	Mr. Allison	Offer to transfer a prohibited or restricted firearm, knowing that he was not authorized to do so.	s. 99(1)(b)
4	Mr. Allison	Conspiracy (with another person or persons) to traffic in firearms contrary to s. 99(1) of the Criminal Code.	s. 465(1)(c)
6	Mr. Cunningham	Possession of a prohibited or restricted firearm (handguns) for the purpose of transferring them, knowing that he was not authorized to do so.	s. 100(1)

[6] I found Mr. Cunningham not guilty of one count of conspiracy to traffic in firearms (Count 5 on the indictment).

[7] Messrs. Allison and Cunningham now appear before me for sentencing. Crown counsel seeks a sentence of 9 years imprisonment for Mr. Allison and 12 years imprisonment for Mr. Cunningham. Counsel for Mr. Allison submits that a sentence of 4 years is appropriate. Counsel for Mr. Cunningham submits that a sentence of 6 to 8 years is appropriate.

[8] After having considered the facts giving rise to the convictions, their backgrounds and the relevant legal principles, I sentence Mr. Allison to 6 years in custody. I sentence Mr. Cunningham to 9 years in custody.

[9] Messrs. Allison and Cunningham will each receive eight months of credit, pursuant to the principles in R. v. Summers[^2] and R. v. Downes.[^3] As such, Mr. Allison will be required to serve another 5 years, 4 months in custody. Mr. Cunningham will be required to serve another 8 years, 4 months in custody.

[10] Messrs. Allison and Cunningham will be subject to the following orders, on consent:

a. A s. 109 order for life; and

b. DNA.

[11] What follows are my reasons.

The Facts

[12] As stated above, the facts for consideration on sentencing are as follows:

a. Mr. Allison: There were three firearms provided to Mr. Allison after having been transported from the U.S.A. Two offers were made in relation to the first firearm on April 6, 2018 and on April 7, 2018. Thereafter, Mr. Allison received two firearms both of which were offered for sale and sold.

b. Mr. Cunningham: Mr. Cunningham participated in the transportation of 29 firearms from Cornwall to Toronto (imported from the U.S.A.). He then sold 19 of those firearms over a 48-hour period.

[13] Also, relevant and for consideration on sentencing is Mr. Allison’s involvement in the drug enterprise and its expansion to include firearms. He testified about his involvement in this business which I accepted as true. I set out his evidence in detail at para. 21 of my reasons for judgment[^4] but I will summarize it here.

a. Mr. Allison testified that he was in the marijuana and Ecstasy business with Biggs for 4 to 5 years prior to his arrest. Mr. Allison would send British Columbia hydroponic marijuana to Biggs in Miami, Florida. Biggs would send Jamaican marijuana to Mr. Allison in Toronto.

b. Mr. Allison was also purchasing Ecstasy from Biggs. The Ecstasy would be delivered to customers of Mr. Allison in Miami. Money would exchange hands.

c. Mr. Allison testified that he wanted his business dealings with Biggs to grow to include firearms. Mr. Allison testified that Biggs was to send firearms from the U.S.A. When delivered to Toronto, Mr. Allison would receive and sell them so that both he and Biggs could profit from this business.

[14] These are the facts upon which Messrs. Allison and Cunningham are being sentenced. I will now turn to a consideration of their backgrounds.

Personal Background

Mr. Allison

[15] Mr. Allison’s background may be summarized as follows:

a. Mr. Allison is 49 years of age.

b. He has no criminal record.

c. He was born in Jamaica. His parents were farmers. His father also worked in Florida to support the family. Eventually, his father stopped coming home to Jamaica and Mr. Allison was raised by his mother.

d. Mr. Allison’s mother came to Canada as a personal support worker. Eventually, Mr. Allison and his younger brother joined her.

e. Mr. Allison had completed high school by the time he came to Canada. When he arrived in Canada, he enrolled in Electronics Engineering at the DeVry Institute of Technology. He completed a four-year course and obtained his degree.

f. At school, Mr. Allison met his spouse. Together, they have two children.

g. Mr. Allison’s spouse works at Scotiabank as a teller and at the LCBO as a sales representative.

h. Mr. Allison’s 27 year-old son has graduated from York University in Business Management. He has also obtained a diploma from George Brown College in Culinary Arts. He is currently in London working as an intern in a prestigious restaurant. Mr. Allison and his son have plans of opening a restaurant of their own together.

i. Mr. Allison’s daughter is 22 years-old. She is a journalism student at the University of Toronto. She is contemplating law school, making her application and is hoping to practice criminal law.

j. After graduating, Mr. Allison commenced working at St. Clair Interactive Communications. They produced electronic information boards that were installed in malls, airports, etc. He then became involved in developing online shopping technology for computers.

k. Mr. Allison saved his money and he opened a computer store on Eglinton Avenue West in the City of Toronto in 1999. While the business was active, he ran classes for those enrolled in the local high schools. Students were invited to the shop to dismantle a computer so they could understand how it operates. This program was Mr. Allison’s way of trying to inspire a love of technology for the students.

l. Due to the recession in 2008 and the competition from larger outlets, Mr. Allison closed his computer business. He took his remaining stock to Jamaica, but that business could not be sustained for a variety of reasons.

m. In Canada, Mr. Allison started and operated two small restaurants. One was across the street from a call centre with approximately 500 employees. His business thrived. Unfortunately, the call centre closed and so did Mr. Allison’s business.

n. Mr. Allison then got into the Airbnb and event lounge business. Due to the COVID-19 pandemic, the lounge closed.

o. Mr. Allison has recently started a painting business for commercial and residential properties. It is called “Core Painters” and has been operational during the pandemic.

[16] In addressing the Court, Mr. Allison stated as follows:

I take this trial as a great learning experience. As the Crown stated that I have – I was part of a criminal organization. I beg to differ in that sense. I worked hard all my life to (inaudible). Yes, I was involved with marijuana. Yes, I was – I had friends that were in stuff that I wasn’t a part of. And to say I’m part of a criminal organization, that is so wrong. Also, to say that I orchestrate and formed this organization is also false.

I am asking for leniency in terms of the sentencing. I try to – I will try my best to uphold the law as much as I can, and I will do, and continue working. Since my charges, I have formed a company, and I just want to provide for my family and continue to provide for my family.

I do appreciate the time you took to officiate this trial. I think you’re fair, and I think that you will see where it fits, the leniency in sentence where I will be home to my family in a short period of time so I can help to continue to grow my kids and to articulate their involvement in the future in (inaudible).

Yes, I have contacted around people (inaudible) and the years I’ve studied since I get to Canada, I’ve studied electronics engineering. I’ve worked. I’ve opened a business. I’ve made two or three new routes. I teach. I taught different computer lessons. I take in co-op students for many, many years and I work hard. And it’s unfortunate that I got a firearm to protect myself. The Crown states that this is otherwise. But at this present time, it is what it is, and I’m asking for some leniency in terms of sentence.

I know, and I ask you (inaudible), this is not a new thing because this is not me, and this is beyond me, and I am just asking for leniency in regards to myself. Thank you so much.

Mr. Cunningham

[17] Mr. Cunningham’s background may be summarized as follows:

a. Mr. Cunningham is 39 years of age.

b. He was born in Port Antonio in Jamaica. He came to Canada in July 1999.

c. His mother came to Canada in 1991 and was employed at Etobicoke Iron Works. She is still employed there in the accounts receivable department.

d. He has his high school diploma.

e. Mr. Cunningham was a very good soccer player. He was on the National Under 20 team in Jamaica. He obtained a scholarship to a U.S. school but was not able to take advantage of it for family reasons. (He became a father at an early age.)

f. He was interested in becoming an Aviation Technician and he registered for the program at Seneca College. He discontinued for personal reasons (the death of his grandfather). Mr. Cunningham has attended school to become educated in electrical work and construction.

g. He has worked in construction and has been employed as a window builder. He has been employed at Sobey’s and then worked for a company called Witron where he was employed as the equipment manager. He has been employed as a systems analyst. Mr. Cunningham has also explored landscaping opportunities.

h. Mr. Cunningham owned and operated his own business under the name of “Cuncan Caribbean Produce” which imported food produce and other staples from the Caribbean. He did that for approximately five years, but he could not compete with other similar businesses.

i. Mr. Cunningham has two children. One is attending Humber College for carpentry. He is an excellent basketball player.

j. Mr. Cunningham has a daughter who is in junior high school. She plays the drums and is an excellent soccer player.

[18] Three letters of support were filed on behalf of Mr. Cunningham. They may be summarized as follows:

Ms. Sandra Beharie: Ms. Beharie is Mr. Cunningham’s mother. She is employed as an Administrative Assistant at Etobicoke Iron Works Ltd. and has been so employed for over 20 years. Mr. Cunningham is the eldest of her children and grew up with his paternal grandparents in Jamaica. She describes her son as a well-rounded person who excelled in both academics and sports. He was particularly talented at soccer. He was a member of the Jamaican National Under 20 soccer team when he was a teenager. He came to Canada in 1999 and played at school and for various clubs. He got his OSSD in 2000 and was nominated for a scholarship. He was unable to attend for the reasons set out above.

Ms. Beharie advised that after high school, Mr. Cunningham enrolled at Seneca College. Due to the death of his grandfather (with whom he was very close) he lost focus and discontinued in the program. He became closer to his grandmother and was thereafter devastated by her loss.

Ms. Beharie describes her son as “quiet”, “respectful” and “considerate”. He is a great father to his two children. They have a close bond. She concluded her letter by saying that the entire situation has been extremely difficult for everyone involved. It has made an impact on their lives. She asks the Court to consider “the life of a young man who is a father, has the ability to make changes and be a positive contribution to society”.

Ms. Kemoy Cunningham: Ms. Cunningham is Mr. Cunningham’s younger sister. She is the mother of three boys and has a diploma from George Brown College. She describes her brother’s conduct as “very uncharacteristic” because “that is not the person I know”. She sees her brother as a “positive influence to those around him”, especially her sons. She is a single mother and advises that Mr. Cunningham assists when they have difficulties. They seek advice from him as they view him as a “father figure”. He did the same for her when they were growing up. She advised that Mr. Cunningham would protect her from negative influences in their community.

Mr. Hermon Russell: Mr. Russell has been a good friend of Mr. Cunningham’s for 22 years. He has always known Mr. Cunningham to be “hardworking, honest and a genuine individual”. Mr. Cunningham is known for his soccer skills which he used to assist in coaching and mentoring younger children in the community. He says that Mr. Cunningham has “set strong examples of how to be a strong black man, father and brother during today’s challenges”. Mr. Cunningham has offered support to Mr. Russell during his difficult times. He describes that Mr. Cunningham has “never turned his back on me, he has always been there for me”. He is eternally grateful as Mr. Cunningham could not be a “better friend”. When working with Mr. Russell, Mr. Cunningham was “reliable, punctual, hardworking and honest”.

[19] In addressing the Court, Mr. Cunningham stated as follows:

I want to take a time out to apologize to my family, first and foremost. I see all this as being stressful on them, you know. I want to apologize to the justice system. I want to apologize to anyone in our families my actions may have harmed directly or indirectly. I admit my actions even though my – in my opinion, they have affected many lives. I know the seriousness of these offences, and I’ve regretted them from the beginning and continue to regret them.

I see it in communities. I see it on the TV every day, the damages that guns cause.

I do have strong support in this country. I’m a father of two and this is definitely not the role model I want to be for them. I believe in the Canadian way of life, and I believe in the justice system which is there for rehabilitation and second chances. I accept your sentencing whatever it may be, and I take solace in the fact that you are a fair judge. I hope and pray Your Honour will have some mercy when handing out your sentence to me, and I want you to take into consideration that these were isolated incidents that I definitely learned from, and I’m truly remorseful.

[20] This is an overview of the backgrounds of Messrs. Allison and Cunningham. I will now turn to a consideration of the relevant legal principles.

The Law

a. General Criminal Code Provisions

[21] In determining an appropriate sentence for Messrs. Allison and Cunningham, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, R.S.C., 1985, c. C-46 which provides as follows:

718. 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 acknowledgment of the harm done to victims or to the community.

[22] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in ss. 718.2(a)(i) to (vi); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).[^5]

b. Range of Sentence

[23] Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime.[^6] There is no such thing as a uniform sentence for a particular crime.[^7]

[24] Cases have been filed to determine the appropriate range of sentence. One of those cases involves the sentence imposed by McMahon J. in the case of Mr. Poyser, a former co-accused.

[25] On March 17, 2021, McMahon J. sentenced Mr. Poyser to 15 years in custody, less credit for time served (R. v. Summers) and for the harsh conditions of his pre-sentence incarceration (R. v. Duncan). Crown counsel had sought a sentence of 20 years’ imprisonment. Counsel for Mr. Poyser sought a sentence of 13 years, less pre-sentence credit.

[26] Mr. Poyser pleaded guilty to the following offences:

a. trafficking in firearms, contrary to s. 99(1) of the Criminal Code for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.13 of the Criminal Code;

b. importing prohibited and/or restricted firearms contrary to s. 103(1) of the Criminal Code; and

c. three separate offences of possession of prohibited or restricted firearms (handguns) for the purpose of transferring them contrary to s. 100(1) of the Criminal Code.

[27] The facts giving rise to Mr. Poyser’s convictions were set out by McMahon J. in his reasons for sentence[^8] and are as follows:

In March of 2018, the Toronto Police commenced an investigation called Project Patton. They had received judicial authorization to intercept various individual’s communications. It was through the lawful interception of communications the police learned of Mr. Poyser’s involvement in gun importing and firearm trafficking. It was Mr. Poyser’s own communications which lead to his eventual arrest on May 23rd, 2018. It’s an admitted fact that the accused, between April 6th and May 23rd of 2018, was part of a criminal organization. The criminal organization’s main objective was to import firearms into Canada from the United States through an area near Cornwall and then traffic them illegally on the streets of Toronto for profit. The organization was also used by Mr. Poyser to send contraband to the United States.

It was admitted during this time that Mr. Poyser, to effect the importation of the firearms for the criminal organization that he was part of, worked with an individual in Florida named Ernest Wilson, also known as Biggs. Another individual named Kareem Lewis, who is now deceased [and] another individual in the Cornwall area referred to as Apache and his two former co-accused, a Mr. Cunningham and Mr. Allison, also worked in association with the criminal organization.

Each had an important role to play in the organization. Mr. Biggs was in Florida. Biggs would acquire the handguns from various dealers and others then ship them up north to the United States/Canada border. Biggs was in charge of the American operation. Once the firearms and contraband reached the Canadian border, it would be Apache who would arrange for the guns and any other contraband that Mr. Biggs was sending north to cross the border in an area near Cornwall. It was then processed through an area not controlled by border entry points. The illegal firearms and accessories would be brought by Apache to a stash house at 515 Oliver Lane in Cornwall. Mr. Poyser or someone instructed or supervised by Mr. Poyser would then go and pick up the handguns or other contraband, transport it to Toronto. To avoid detection in their communications, Mr. Poyser and other members of the group used coded language when referring to the firearms as a shipment of Irish.

The firearms would be stored at Mr. Poyser’s residence. Other individuals, including Cunningham and Allison, would then get the guns from Mr. Poyser. The firearms would then be sold on the streets of Toronto and surrounding jurisdictions for profit. Mr. Poyser would arrange for other contraband from Canada to be exported illegally to the United States, again going through Cornwall area using the criminal organization, including its other members, Apache and Biggs.

It's an admitted fact that April 6th of 2018, Mr. Poyser received a shipment of five guns sent north by Biggs. Biggs instructed Poyser to give one of them to Mr. Bill Allison. Mr. Poyser followed that direction, met with Allison at a location in Toronto and delivered the handgun to Mr. Allison.

On May 7th, the organization, through Apache, shipped in a large quantity of handguns, in particular, 29 firearms. On the call they would refer to the handguns as Irish. On this date, after receiving the information that the Irish had been delivered, Poyser contacted Mr. Lewis and Mr. Cunningham. They met in a parking lot on McCowan Road where Poyser instructed Lewis and Cunningham to travel to Cornwall to pick up the handguns which Biggs had shipped and Apache had smuggled across the border, and Apache secured them in the stash house at 515 Oliver in the Cornwall area.

Those two individuals picked up the shipment of the 29 handguns and returned to Toronto. The guns were then immediately taken to Mr. Poyer’s residence. They promptly went about selling the handguns, in conjunction with Mr. Poyser, to waiting clients. Of the 29 handguns, 27 were quickly snapped up. Two were not selling because they were older. They were selling on the admitted facts the illegal handguns for $4,000 a piece, they would be making profit about $1,500 for each gun with Biggs and other individuals getting $2,500. As indicated, there were problems with the quality of two guns. It was Mr. Poyser who raised the quality concern to Mr. Biggs. Biggs, however, refused to lower the payments and said that he promised Mr. Poyser in the next load he’d send a number of extras, including ammunition, clips and other accessories.

On May 22nd, Mr. Lewis called Mr. Poyser, told him that Biggs had indicated the next shipment of Irish would arrive soon. It was at this time Mr. Poyser coordinated with Biggs, Lewis and Apache to pick up the shipments of illegal firearms at the stash house in the Cornwall area at 515 Oliver Lane. Biggs advised that the northbound delivery this time was for 100 guns subdivided into two shipments. The first of 60 guns, the second of 40. The shipments were going to be brought to 515 Oliver Lane on separate days.

Lewis and Mr. Poyser drove to Cornwall on the afternoon of May 23rd in separate cars. [Poyser] arrived at the stash house around 9:20, parked the rental car [and] at this time other unidentified men loaded two large bags containing bedding and the total of 60 handguns in the trunk of Mr. Poyser’s car. This entire exchange was captured on video due to police surveillance on an aircraft equipped with long-range camera. The whole process of driving to the location was covered by two separate Toronto Police surveillance [teams].

After leaving the stash house with the firearms, just before reaching the ramp to the 401, the Toronto Police officers on surveillance boxed in Mr. Poyser’s vehicle and placed him under arrest. At [this] time, found in Mr. Poyser’s vehicle were 60 semi-automatic handguns, 108 magazines of which 54 were high-capacity magazines for prohibited devices. All of the handguns, 60 handguns, were prohibited or restricted firearms and many of them were of the make and model [as] set out in the various counts in the indictment on which the accused has readily acknowledged he possessed and trafficked and imported and had no license to do so.

The other 40 guns that were discussed being shipped to arrive shortly, understandably were not recovered with the arrest of Mr. Poyser. Mr. Poyser does admit that Mr. Biggs had agreed to send 100 firearms north, one shipment of 60 and the next shipment of 40, which would follow on a separate day.

[28] In imposing the fit sentence, McMahon J. considered the following:

a. The mitigating factors: the plea of guilt; Mr. Poyser was 58 years of age at the time he committed these offences and this conduct appears to be out of character; Mr. Poyser does not have a criminal record; Mr. Poyser has been gainfully employed for most of his life; his pre-sentence report was favourable; he is a good father to his eight children; he completed many of the courses offered at the institution while awaiting sentence; he had counseled youth while he was incarcerated; he has the support of his family; he showed tremendous remorse in a letter of apology; and, he had good prospects for rehabilitation.

b. The aggravating factors: the sophistication and nature of the criminal organization; the length of the operation; the number of firearms involved (34 handguns already sold and distributed, 60 more with high capacity magazines were a day or two from being distributed on the streets, 40 more that were days away (for a total of 134 firearms); the nature of the firearms (mainly lethal semi-automatic firearms); the risk to our community; and, that “Mr. Poyser had an extremely high degree of moral culpability because he was actively involved in directing others working with the main American lead, Biggs.”

[29] I have considered the reasons for sentence in Mr. Poyser’s case as well as the cases provided by counsel in support of their range of sentence. Crown counsel provided several cases. I have attached their sentencing chart that was provided to the Court as Appendix “A”. I will summarize a few of the cases here, but I have relied on those principles outlined in Appendix “A”.

R. v. Hersi:[^9] This was a case involving a criminal organization. The aim and objective of the criminal organization to which Messrs. Hersi and Mahadale belonged was the commission of robberies and the production of and trafficking of controlled substances (mainly crack cocaine). Messrs. Hersi and Mahadale were charged with gang-related criminal offences. They were both members of a criminal organization by the name of Young Buck Killers (“YBK”). After a trial with a jury, Mr. Hersi was convicted of the following offences: trafficking a firearm, possession of a firearm, trafficking drugs and conspiracy to traffic drugs in connection with the criminal organization. Mr. Mahadale was convicted of trafficking a firearm for the benefit of or in association with a criminal organization.

The facts giving rise to the convictions of Mr. Hersi are that Mr. Hersi offered to traffic three firearms and did so for the benefit of a criminal organization. At the time of the offences, he was 22 years of age. He had prior findings of guilt as a youth. He also had convictions for offences of violence as an adult.

Mr. Hersi was given a global sentence of 13 years’ imprisonment which included the following:[^10]

a. Offering to transfer a firearm: five years’ imprisonment.

b. Offering to transfer a firearm for the benefit of and in association with a criminal organization: three years consecutive.

c. Conspiracy to traffic in a controlled substance: three years consecutive.

d. Conspiracy to traffic a controlled substance for the benefit of or in association with a criminal organization: two years consecutive.

The Court of Appeal upheld the sentence, concluding as follows at para. 19, “The sentence imposed was proportionate to Hersi’s moral culpability; it was also necessary to deter and denounce the extremely serious offences committed in the name of a violent criminal organization.”

R. v. Sampogna:[^11] Mr. Sampogna sold a firearm to a Mr. Munnick with 50 rounds of ammunition. He, in turn, sold both items to an undercover officer. Thereafter, a search warrant was executed at the home of Mr. Sampogna. There, they found three firearms registration certificates. The police seized several firearms for which he did not have registration certificates (five firearms). Mr. Sampogna was convicted of one count of trafficking a firearm and five counts of possession of a restricted or prohibited firearm. Mr. Sampogna was a 57 year-old first time offender. His community advised that he is generally a person of good character and the offences appeared to be out of character. He was remorseful and took responsibility for his actions. However, the Court held that exemplary sentences must be imposed for even the most positive of offenders. He was given a sentence of five years’ imprisonment less time served. In imposing the sentence, Goldstein J. relied on many cases, including the case of R. v. Hanse[^12] (at para. 12), suggesting that exemplary sentences are required in cases such as this one. Gun violence has wreaked havoc on our community.

[30] Counsel for Mr. Allison provided three cases in support of their position on sentence. They may be summarized as follows:

R. v. Howell:[^13] Mr. Howell was found guilty of nine weapons charges and one count of possessing the proceeds of crime. His car was searched and inside the trunk were three rifles and over four hundred rounds of ammunition. He had five more firearms in his apartment as well as ammunition and proceeds. When he gave a statement to police, he advised that he had purchased the firearms to sell and had already sold two of them. He was 22 years of age, had no criminal record and had real prospects for rehabilitation. He had a two year-old daughter. The Court held at para. 23:

23. Given the seriousness of these offences, I would not ordinarily recoil from imposing a five to seven years sentence as recommended by Crown counsel. But in this case, I must not lose sight of the fact that the offender is a youthful first offender, who has good prospects for rehabilitation. Where the principles of sentence require that a sentence of imprisonment be imposed on an offender like Mr. Howell, the sentence should be no longer than necessary, and in any event should not be one that could be characterized as crushing. That is particularly so for Mr. Howell, given his break with the past, and his good prospects for rehabilitation.

Dambrot J. gave significant consideration to Mr. Howell’s rehabilitation. He observed that Mr. Howell had been in a positive common-law relationship and had a two year-old daughter. His spouse held a good job. He had a positive attitude to his family and his religious beliefs. Since his arrest, he had made changes in his lifestyle. He had moved from his former neighbourhood to assist in creating a distance from his peers. He admitted that he had made poor decisions when associating with his peer group and had matured. He had set goals for himself, including educational and career plans. Dambrot J. imposed a sentence of four years, less pre-sentence custody.

R. v. Stover:[^14] Ms. Stover pleaded guilty to four counts of trafficking in firearms and one count of breaching her bail. Ms. Stover had a license to purchase firearms. She purchased three and transferred them to a third party. Upon her arrest, the police learned that she was on bail. A condition of her bail was that she turn over 13 firearms that she had purchased previously. She was not able to do so because she no longer possessed them. The Court recognized the seriousness of the offence but considered her personal circumstances as well. At the time of sentencing, Ms. Stover was 42 years of age and had no criminal record. She self-identified as indigenous and was involved in the care of her father who suffered from dementia. The Court imposed a sentence of 3.5 years.

R. v. Faria:[^15] Messrs. Faria and Quackenbush broke into and entered a residence, stealing firearms and then trafficking them (twice). Police described the seizure of the firearms and ammunition as one of the largest seizures of stolen firearms in the province (26 of 28 firearms were recovered). Both men had prior criminal records. The break and enter was planned and deliberate. The broker of the firearms was associated with a criminal organization (the Hell’s Angels). The firearms were trafficked to members of that organization. They pleaded guilty. Mr. Faria was young and had family to support. Although the principles of denunciation and deterrence were paramount, the Court held that ss. 718.2(d) and (e) of the Criminal Code required the Court to consider the principle of restraint. Rehabilitation is still a principle of consideration. Although both had criminal records, neither had been to the penitentiary. They were each given a sentence of 59 months’ imprisonment.

[31] Counsel for Mr. Cunningham provided no cases in support of their position but relied on those provided by all counsel and their submissions with respect to same.

c. Other Acts Not Charged

[32] Also relevant for the purpose of sentencing Mr. Allison is s. 725(1)(c) of the Criminal Code. Section 725(1)(c) provides that in determining the appropriate sentence, a court “may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge”. (I.e. Mr. Allison’s admitted prior involvement in the narcotics business.)

[33] Section 725(1)(c) applies to both withdrawn and uncharged offences.[^16] In support of this principle, Crown counsel provided a number of authorities, including the following:

R. v. Larche:[^17] Mr. Larche participated in a criminal organization that exported marijuana from Canada to the U.S.A. He was arrested and charged in Canada but also indicted in the U.S.A. The Supreme Court of Canada held that where the requirements of s. 725(1)(c) are met, sentencing judges are entitled to exercise their discretion which may increase the sentence on the basis of an uncharged offence. Where the defendant does not consent to the application of s. 725(1)(c), the Crown is required to prove the existence of the aggravating factor beyond a reasonable doubt, pursuant to s. 724(3)(e) of the Criminal Code.

At para. 47, the Supreme Court held as follows:

Section 725(1)(c) has three components, which may be broken down this way: ‘In determining the sentence, a court . . . [1] may consider any facts [2] forming part of the circumstances of the offence [3] that could constitute the basis for a separate charge.’ The use of the word ‘may’ signifies that the provision is discretionary, as I have already mentioned. The requirements of ‘forming part of the circumstances of the offence’ and the necessity that these facts be capable of constituting ‘the basis for a separate charge’ are two necessary preconditions for the exercise of that discretion.

Section 725(1)(c) provides that unrelated offences are excluded. As such, there must be a “nexus” or “connexity” between the uncharged criminal conduct and the offence for which the defendant has been convicted. “Connexity” may be found “either in time or place or both”.[^18]

d. Delayed Parole

[34] Lastly, because Messrs. Allison and Cunningham have been found guilty of offences committed pursuant to s. 467.12 of the Criminal Code and Mr. Cunningham has been found guilty of an offence committed pursuant to s. 467.11 of the Criminal Code, I must consider parole eligibility. Section 743.6(1.2) of the Criminal Code provides that parole shall be delayed until the defendant has served at least half of his or her sentence, unless the court is satisfied that a lesser period of parole ineligibility appropriately serves certain sentencing objectives.

[35] Section 743.6(1.2) provides as follows:

Notwithstanding section 120 of the Corrections and Conditional Release Act, where an offender receives a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed, on conviction for a terrorism offence or an offence under section 467.11, 467.111. 467.12 or 467.13, the court shall order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less, unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. [Emphasis added]

[36] The application of this section and principle was set out in R. v. Zinck,[^19] at para. 33:

… The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. …

[37] With these legal principles in mind, I will now turn to a consideration of the fit sentence.

Analysis

a. Mitigating and Aggravating Factors

[38] In considering the fit sentence for Mr. Allison, I find the following to be the aggravating factors:

a. Mr. Allison was involved in a criminal organization that morphed from narcotics to firearms.

b. Firearms were being moved across the border from the U.S.A. to Canada for sale here.

c. Mr. Allison wished to sell the firearms for profit. He had other operational businesses, so his motivation was greed.

d. Mr. Allison obtained three firearms. He was selling them for profit.

e. Firearms put our public at risk.

f. The crimes were committed in association with and for the benefit of a criminal organization.

[39] There are mitigating circumstances to consider in sentencing Mr. Allison as well:

a. Mr. Allison is 49 years of age.

b. He has no criminal record.

c. Mr. Allison has an education. He has made use of that education being steadily employed in legitimate businesses.

d. Mr. Allison appears to be motivated. When one business does not succeed, he starts another.

e. He has been a role model to younger members in his community, educating them about electronics.

f. Mr. Allison has a spouse. She appears to be hardworking.

g. Mr. Allison has two children who have and are being educated. They are easily described as success stories. As such, Mr. Allison and his spouse must have provided good parental support to assist in their children’s success.

h. There is no evidence of any substance abuse.

i. He has good prospects for rehabilitation.

j. Mr. Allison showed some remorse for his actions.

[40] In considering the fit sentence for Mr. Cunningham, I find the following to be the aggravating factors:

a. Mr. Cunningham was instrumental in bringing 29 firearms from Cornwall to Toronto.

b. Mr. Cunningham sold 19 of the firearms he brought to Toronto in a 48-hour period between May 8 and 10, 2018.

c. Firearms put members of our public at risk.

d. The crimes were committed in association with and for the benefit of a criminal organization.

e. The fact that Mr. Cunningham was able to sell 19 firearms in a 48-hour period demonstrates that he had some connection to the criminal world.

[41] There are mitigating circumstances to consider in sentencing Mr. Cunningham as well:

a. Mr. Cunningham is 39 years of age.

b. Mr. Cunningham has no criminal record.

c. Mr. Cunningham has the support of his family and the community.

d. Mr. Cunningham provides support to his own two children and other members of his family. It appears that he is an integral member of it.

e. He has an education.

f. He has been legitimately employed in the past.

g. He has good prospects for rehabilitation.

h. Mr. Cunningham showed insight into his offences and significant remorse for his actions.

The Fit Sentence

[42] Denunciation and deterrence are the paramount considerations when sentencing persons like Messrs. Allison and Cunningham who have committed very serious offences. The appropriate sentence imposed must be one from which our society feels protected and which deters others from committing similar crimes, without crushing the hopes of either Mr. Allison or Mr. Cunningham. However, both deserve a sentence that addresses the appropriate legal principles in consideration of their backgrounds and the facts.

[43] The observations made by McMahon J. in R. v. Poyser are also applicable here:

Sadly, the proliferation of firearms in our community is not going away. The illegal handgun is the most important tool of the criminal. Drug trafficking, robbery, intimidation of others, murders, attempted murders. It is not an exaggeration to conclude that illegal handguns and their use in this city have reached an epidemic level. Innocents being shot and injured or killed due to random gunfire. On the case law and cases before this court they are replete with tragic consequences of gun violence on the street. Children being shot while playing in a playground with their mom. A young child shot and killed at a birthday party. Innocents being shot at a community BBQ. A teenage girl shot in the head in her apartment when a random bullet enters the apartment and strikes her. Drive-by shootings on the streets are too common. Shootings on public streets, in broad day light. Young men, totally innocent, being targeted and shot because of the neighbourhood they live in. There is not a neighbourhood or part of the city that is safe from gun violence.

The one common denominator to all the killing, injury and shooting is the illegal handgun. This is why sentences of this court must be exemplary and denounce such conduct. It is for these reasons the Court of Appeal and this court have repeatedly indicated denunciation and general deterrence must be paramount without ignoring the individual’s antecedents and prospects for rehabilitation. Those who import and traffic in firearms for profit provide the tools that cause the deaths, injuries and tragedy.

[44] Rehabilitation cannot be ignored as there is a real prospect that both Messrs. Allison and Cunningham can be rehabilitated.[^20] I am also cognizant of the principles set out in R. v. Priest,[^21] at p. 296 which are applicable:

[I]t is a well-established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.

[45] I am also mindful of the fact that this would be the first visit to the penitentiary for both Messrs. Allison and Cunningham and of the direction of Rosenberg J.A. in R. v. Borde,[^22]that a “first penitentiary sentence should be as short as possible”. This is a first jail sentence of any significance for either Mr. Allison or Mr. Cunningham. That said, the jump principle is not applicable due to the severity of the offences.

[46] Another important legal principle to consider is that of totality. As stated by McMahon J. in R. v. Poyser, “I must consider all the offences in totality and the circumstances to determine what a fair and fit global sentence would be. It is not a process of adding up appropriate sentences of individual counts, which would result in error. See R. v. M. (C.A.), [1996] 1 S.C.R. 500 at pages 531, 532.”

[47] Lastly, with respect to Mr. Allison, I have considered that he was engaged in the narcotics business for four to five years when the business was expanded to trafficking firearms. The narcotics business is connected to the firearms trafficking business. It was the same criminal organization that was the vehicle for both with Biggs in the U.S.A. Money and narcotics were moved between Canada and the U.S.A., similar to the arrangement made for trafficking in firearms. There was an unbroken pattern of conduct as the movement of narcotics continued but expanded to include firearms. There is no unfairness to Mr. Allison in considering this evidence. Mr. Allison testified. He suggested that he was in the narcotics business and not in the firearms business, although he wanted to be. I found otherwise.

[48] In all of the circumstances, I find that the appropriate sentence is a global one of 6 years for Mr. Allison and 9 years for Mr. Cunningham. Messrs. Allison and Cunningham are entitled to a reduction in sentence pursuant to Summers[^23] and Downes.[^24]

The Summers Credit

[49] Messrs. Allison and Cunningham will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and Summers.

[50] Counsel have advised that Mr. Allison has spent 22 days in custody. Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Allison will be given credit of 35 days.

[51] Counsel have advised that Mr. Cunningham has spent seven days in custody. Enhanced at 1.5 days for each day spent in pre-sentence custody, Mr. Cunningham will be given credit of 10 days.

The Downes Credit

[52] In R. v. Downes, the Court of Appeal for Ontario held that, where an accused is the subject of “stringent pre-trial bail conditions”, including time spent effectively under “house arrest”, this mitigating circumstance must be taken into account and given some weight in the sentencing of the accused.

[53] The Court of Appeal, in R. v. Ijam,[^25] gave some guidance as to what weight, if any, should be given to the presentence bail conditions. In order to get credit, the bail conditions should create a hardship or deprivation to the person. All counsel agreed and I find that the conditions did so, to some extent, in this case.

[54] It was proposed, and it was agreed by Crown counsel, that both Messrs. Allison and Cunningham be given credit of 7 months for being subject to strict terms of release since their arrest. As such, each will be given credit of 7 months.

Conclusion

[55] In conclusion, I sentence Messrs. Allison and Cunningham as follows:

Mr. Allison: 6 years (72 months) in custody, less 8 months’ pre-sentence custody for a further 5 years, 4 months (56 months) to be served.

Mr. Cunningham: 9 years (108 months) in custody, less 8 months’[^26] pre-sentence custody for a further 8 years, 4 months (100 months) to serve.

[56] The sentences shall be reflected as follows for Mr. Allison:

Count	Offence	Sentence
1	Firearms trafficking pursuant to s. 99(1) of the Criminal Code for the benefit of or at the direction of or in association with a criminal organization (between March 25 and May 24, 2018) pursuant to s. 462.12 of the Criminal Code.	2 years consecutive to Count 3.
3	Offer to transfer a prohibited or restricted firearm, knowing that he was not authorized to do so (between April 6 and 22, 2018) pursuant to s. 99(1)(b) of the Criminal Code.	4 years less 8 months for a further sentence of 3 years, 4 months.
4	Conspiracy (with another person or persons) to traffic in firearms contrary to s. 99(1) of the Criminal Code (between March 25 and May 24, 2018) pursuant to s. 465(1)(c) of the Criminal Code.	2 years concurrent to Counts 1 and 3.

[57] The sentences shall be reflected as follows for Mr. Cunningham:

Count	Offence	Sentence
1	Firearms trafficking pursuant to s. 99(1) of the Criminal Code for the benefit of or at the direction of or in association with a criminal organization (between March 25 and May 24, 2018) pursuant to s. 462.12 of the Criminal Code.	7 years less 8 months for 6 years, 4 months left to serve.
2	Participation in the activities of a criminal organization for the purpose of enhancing the ability of the organization to commit the offence of importing firearms contrary to s. 103(1) of the Criminal Code (between March 25 and May 24, 2018) pursuant to s. 467.11 of the Criminal Code.	2 years consecutive to Count 1.
6	Possession of a prohibited or restricted firearm (handguns) for the purpose of transferring them, knowing that he was not authorized to do so (between May 7 and 18, 2018) pursuant to s. 100(1) of the Criminal Code.	2 years concurrent to Counts 1 and 2.

[58] Having considered, at the initial sentencing stage, the relevant facts and principles as they pertain to Messrs. Allison and Cunningham, I am satisfied that the expression of society’s denunciation of the offences and the objectives of specific and general deterrence will be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act. Messrs. Allison and Cunningham come before the Court as first offenders. They will be incarcerated during the pandemic. As such, the order sought by Crown counsel pursuant to s. 743.6(1.2) is not granted.

[59] The following ancillary orders are granted:

a. an order pursuant to s. 487.051(3) of the Criminal Code that Messrs. Allison and Cunningham provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

b. an order pursuant to s. 109 for life.

Kelly J.

Released: May 4, 2021

Appendix “A”

R. v. Allison & Cunningham

Crown Sentencing Authorities

Kienapple

CASE	RELEVANT PRINCIPLE
McGuigan v. R., 1982 41 (SCC)	65 One of the matters which troubled the Ontario Court of Appeal in Quon was the fact that the penalty provided by s. 122 was not additional punishment attaching to the commission of “any other offence” but rather a sanction imposed for the commission of the specific offence defined by the section. That concern was removed in the repeal of s. 122 and the enactment of s. 83. I will repeat s. 83(2) for ease of reference: 83. ... (2) A sentence imposed on a person for an offence under sub-section (1) shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event or series of events and to any other sentence to which he is subject at the time the sentence is imposed on him for an offence under subsection (1). The subsection contemplates that the sentence imposed upon a person who uses a firearm while committing or attempting to commit an indictable offence shall be served consecutively to any other punishment imposed on him for an offence arising out of the same event. I do not know what clearer language could be used to negate the so-called Kienapple principle.
R. v. Evans, 2013 ONSC 7003	91 Counsel for the offenders sought to distinguish Sheppe and Lake on the basis that here, the trafficking charge was not a charge of trafficking simpliciter, but was a charge of committing an indictable offence for the benefit or in association with a criminal organization contrary to s. 467.12 of the CCC. Subsection 467.1(1) of the CCC defines a criminal organization as: a group, however organized, that is composed of three or more persons, and that has as one of its main purposes or main activities the facilitation or commission of one or more serious offences. Further, the persons belonging to the group, or at least three of them, must collectively have the facilitation or commission of serious offences as one of their main purposes or activities. As a result, the offenders argue that the trafficking offence is more akin to a conspiracy offence, and accordingly the Kienapple rule applies. 92 While there is a superficial appeal to this argument, upon rigorous analysis it fails. First, collectively having the commission of serious offences as a general common purpose falls short of an agreement to commit any particular offence. Second, and more importantly, the actus reus of the offence of trafficking for the benefit of a criminal organization need not involve more than one person, far less any agreement by more than one person to commit an offence. Common purpose is a prerequisite to membership in a criminal organization, not to an offence committed for the benefit of that organization. 118 I see no reason to interpret s. 467.14 of the CCC concerning criminal organizations differently from the parallel provisions of the CCC concerning firearms and terrorism. The concerns are equally pressing, and the intention of Parliament equally clear. Nor, apparently, have most of those judges who have come to consider the issue before me reached a different conclusion. 121 In Ontario, judges have routinely imposed sentence for both offences contrary to s. 467.12 and the predicate offences underlying them. See for example, R. v. Lindsay, [2005] O.T.C. 583, 2005 24240 (S.C.), aff'd 2009 ONCA 532, 97 O.R. (3d) 567, leave to appeal to SCC refused, [2009] S.C.C.A. No. 540 and [2009] S.C.C.A. No. 541; R. v. Jeffrey, (unreported, Ont. S.C., Jan. 27, 2009); and R. v. Wagner, [2008] O.J. No. 5490 (S.C.). But compare R. v. Beauchamp, [2009] O.J. No. 4872 (S.C.). However, I am unaware of any Ontario judgment that embarks on an analysis of the application of Kienapple in these circumstances. 122 I am convinced that Carrier was correctly decided, and is consistent with Ahmad as well as McGuigan and Krug, which are, of course, binding authority. In the result, I conclude that none of the counts in the indictment with respect to which any of the accused stand convicted should be stayed in the basis of the rule in Kienapple.

OTHER CRIMINAL CONDUCT – S. 725(1)(c)

CASE	RELEVANT PRINCIPLE
R. v. Larche, 2006 SCC 56	Proof of aggravating fact BRD 44 The requirement in s. 724 of proof beyond a reasonable doubt is imperative in light of the presumption of innocence, which applies to all alleged offences. The finality of s. 725(1)(c) is to increase punishment on the basis of an uncharged offence. Where the offender disputes his guilt of that offence, the presumption of innocence applies. Connexity 48 I begin by considering the requirement that the facts form part of the circumstances of the offence. Parliament has made plain the need to establish a nexus or "connexity" between the uncharged criminal conduct and the offence for which the offender has been convicted. 51 The first would be connexity either in time or place, or both. This flows from the ideal animating s. 725(1)(c): In principle, a single transaction should be subject to a single determination of guilt and a single sentence that takes into account all of the circumstances. In its application, this principle is subject, of course, to the constraints fixed by Parliament in the governing provisions of the Criminal Code, including, notably, s. 725. 55 "Facts" (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct. Fairness 46 First, as Rosenberg J.A. observed in R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737 (C.A.), "the occasions on which [s. 725(1)(c)] may be invoked are carefully circumscribed by the requirement that the facts form part of the circumstances of the predicate offence" (para. 35). Unrelated offences, which the offender would not expect to be confronted with, are excluded. Second, judges can be relied on, in the exercise of their discretion under s. 725(1)(c), to decline to consider uncharged offences if this would result in unfairness to the accused -- or for that matter, to the Crown, for example in taking the Crown by surprise so as to foreclose prematurely the laying of additional charges.
R. v. Shin, 2015 ONCA 189	91 First, if the accused disputes his guilt of the uncharged offence, the presumption of innocence applies and the Crown must prove the uncharged offence beyond a reasonable doubt: Larche, at paras. 43-44. In this case, the appellant did not deny that he had been trafficking in marijuana for a lengthy, unbroken period of time beginning when he was in high school. He admitted it. 95 The appellant testified about his unbroken history of selling marijuana throughout his high school years, his undergraduate and graduate university programs, and afterwards to the time of his arrest. His marijuana trafficking career was at its zenith in the period leading to his arrest, when he was selling around ten pounds of marijuana per week and twenty pounds in a busy week. The appellant's testimony about his unbroken pattern of trafficking in marijuana, including in the period leading to his arrest, shows a sufficient proximity in time to the charged offences and is clear evidence of a system or unbroken pattern of criminal conduct, within the meaning of connexity as explained in Larche, at para. 55. Indeed, the appellant's testimony as to his system and pattern of trafficking in marijuana was what he used to distance himself from the cocaine and other hard drugs found in his stash house. 96 Third, the court should decline to consider uncharged offences under s. 725(1)(c) if doing so would result in unfairness to the offender: Larche, at para. 46. The trial judge found that the appellant admitted his prior marijuana trafficking to avoid being convicted of offences relating to the cocaine and heroin found in the stash house. As the appellant gained a tactical benefit from admitting his prior trafficking, it is not unfair to take that trafficking into account in sentencing. Furthermore, since the appellant's prior marijuana trafficking has been considered under s. 725(1)(c), the Crown cannot now charge him in respect of that trafficking: see s. 725(2), discussed in Larche, at para. 26. Accordingly, taking the uncharged conduct into consideration did not result in unfairness to the appellant.

COVID-19 AS A COLLATERAL CONSEQUENCE

CASE

RELEVANT PRINCIPLE

R. v. Morgan, 2020 ONCA 279

8 In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission. 9 In our view, the appellant's submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48: The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. 10 However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56: I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. 11 In our view, the sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18: It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. 12 That result does not mean that there is no potential remedy for the appellant respecting the impacts arising from the COVID-19 pandemic. We expect that the Ontario Parole Board will take into account those impacts in deciding whether the appellant should be granted parole. If the Parole Board fails to do so, the appellant has other remedies available to him to redress that failure.

FIREARM SENTENCING – GENERAL PRINCIPLES

CASE

RELEVANT PRINCIPLE

R. v. Sampogna, 2020 ONSC 1024

12 I agree that I am not bound to impose the mandatory minimum. I find, however, that a conditional sentence is simply inappropriate in this case. The previous ranges have not been changed. Indeed, I quote extensively from my colleague Molloy J. in R. v. Hanse, 2019 ONSC 1640. I adopt her comments at paras. 26-28: I note as well that the principle of giving paramount importance to denunciation and deterrence in sentencing for firearms offences has been reaffirmed in many cases since the Supreme Court's decision in Nur. Indeed, while finding the mandatory minimum sentence to be unconstitutional, the Supreme Court in Nur did not minimize the seriousness of firearms offences and the need for exemplary sentences in appropriate cases. In the very first sentence of her judgment, McLachlin C.J. stated, "Gun-related crime poses grave danger to Canadians." After providing an overview of the basis for finding the mandatory minimum to be unconstitutional, the Chief Justice added: This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases. Finally, I note that the importance of denunciation and deterrence can flow from particular problems being experienced in a particular community. For well over a decade, Toronto judges have emphasized the plague represented by firearms in our city and the profound consequences these weapons have on the safety of our community. Here are some examples: Moldaver J. (in dissent in Nur): Gun crime is a matter of grave and growing public concern. Successive Parliaments have responded by enacting laws designed to denounce and deter such crime. The mandatory minimums in s. 95(2) were part of a suite of legislative changes put forward as "a direct response to the scourge of handgun crime that plagues our country": House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 30, 1st Sess., 39th Parl., November 7, 2006, at p. 1. The parliamentary committee studying those changes heard compelling testimony from law enforcement about the devastating impact of gun violence across Canada. Toronto Police Chief William Blair noted a "significant increase in the number of shooting[s]" in Toronto and a rise in gun-related homicides in excess of 85 percent from 2004 to 2005: ibid., No. 34, November 23, 2006, at p. 1. Due to the surge in shootings and gun deaths, 2005 was dubbed by local media as "the year of the gun" (ibid.). O 'Connor A.C.J.O., Simmons and Blair JJ.A.: Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public. R.P. Armstrong J.A.: There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed. D.E. Harris J.: The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety. Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing . . . .It is even more so now what with the record murder numbers in Toronto and the continuing increase of gun crimes and violence . . . K.L. Campbell J.: Courts have repeatedly observed that the criminal possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others living in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity, such as drug-trafficking, and their possession and use, on occasion, tragically results in serious bodily harm or death. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences . . . S.A.Q. Akhtar J.: Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences . . . J. McMahon J.: Sadly, concealed illegal firearms remains a plague in this city. It is not an exaggeration to say that this Court sees on a weekly basis illegal firearms, often leading to intimidation, robbery, serious injury and death. The message of this Court must be clear: if you are going to carry an illegal firearm on the streets of this city, in all likelihood you are going to jail. I adopt, in particular, the observations of Trafford J. in R. v. Villella as to the exceptionally serious nature of trafficking in firearms, as follows: . . . [T]he importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterized as exceptionally serious crimes.

SENTENCING PRINCIPLES FOR CRIMINAL ORGANIZATION OFFENCES

CASE	RELEVANT PRINCIPLE
R. v. Beauchamp, 2015 ONCA 260	RE: General Principles of Sentencing for Criminal Organization Offences 260 In R. v. Mastop, 2013 BCCA 494, 303 C.C.C. (3d) 411, at para. 46, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 23, the British Columbia Court of Appeal described the overall purpose of s. 467 in this fashion: The overall objective of the criminal organization legislation is to protect society from the wide-ranging effects, violent and otherwise, of criminals who work together as a group, as well as to prevent and deter organized criminal activities. Offenders who regularly commit crimes together are a greater menace to society than an individual offender working alone. 261 We endorse these comments. Protection of the public, deterrence and denunciation are the primary sentencing objectives for s. 467 offences. We also agree with the Crown's submission that the achievement of these objectives depends on the prospect of significant penal sanctions for organized criminal conduct. RE: Involvement in a Criminal Organization as an Aggravating Factor 326 In our view, a plain reading of s. 718.2(a)(iv) confirms that evidence an offence was committed in association with or for the benefit of a criminal organization is an aggravating factor on sentencing for non-criminal organization offences, even when the offender is also convicted of a s. 467 offence. Like any other statutory aggravating circumstance, it is but one of many factors to consider when fashioning an appropriate sentence.
R. v. Evans, 2013 ONSC 7003	RE: Approach to Apportioning Sentence Between Criminal Organization and Predicate Offences 148 My second observation is that in some cases, a criminal organization charge is tried together with the underlying predicate offence, and convictions entered on both. In those cases, some judges impose a longer sentence on the count alleging the predicate offence, and a shorter, consecutive premium on the criminal organization offence. This is entirely logical, and gives effect to the lower maximum for the criminal organization offence. That was the approach taken in R. v. Lindsay (unreported, Ont. S.C., Sept. 9, 2005), where Fuerst J. imposed a sentence on Lindsay of four years imprisonment for extortion, less twenty months credit for pre-trial custody, and two years imprisonment consecutive for committing extortion in association with a criminal organization. On Lindsay's co-accused, Bonner, Fuerst J. imposed two years imprisonment for extortion, less twenty months credit for pre-trial custody, one year imprisonment consecutive for committing extortion in association with a criminal organization, and four months imprisonment concurrent for the offence of breach of recognizance. Lindsay's sentence appeal was dismissed: R. v. Lindsay (2009), 2009 ONCA 532, 97 O.R. (3d) 567 (C.A.), leave to appeal to SCC refused, [2009] S.C.C.A. No. 540. But this approach is not uniform. 149 The issue was discussed by McMahon J. in Wagner. In Wagner, the accused pleaded guilty to two offences: trafficking in cocaine and possession of stolen property, and was found guilty of directing others to traffic in cocaine and transfer a firearm for the benefit of a criminal organization, the Hells Angels Motorcycle Club. McMahon J. noted, at para. 60: It is the position of the defence, Mr. Schreck, that the lengthiest sentence should be for the cocaine trafficking and that the criminal organization count should simply be a lesser amount consecutive to. 150 He then stated, at para. 61: I have been provided with sentencing cases from across Canada. I am mindful in this jurisdiction of Ontario of the decision of Her Majesty the Queen v. Lindsay and Bonner, 2005 24240 (ON SC), [2005] O.J. No. 2870, Justice Fuerst followed the position articulated by the defence. I am also mindful there are several cases, particularly in Quebec, that go the other way. 151 McMahon J. then imposed a sentence of four years for the criminal organization offence on top of four years and four months of pre-sentence custody, and two years and eight months on the predicate trafficking offence. He appears to have favoured the Quebec approach. 152 Whatever the appropriate approach might be to sentencing for a count charging a criminal organization offence together with a count charging the predicate offence, clearly here the full force of the sentence for the underlying trafficking activity must be meted out in the criminal organization offence, since there is no other count alleging the underlying trafficking activity. While some of the underlying trafficking activity may be encompassed in the individual conspiracy and trafficking counts, the vast majority of that activity is not the subject matter of any other count and is encompassed only in the broad criminal organization count. [Emphasis Added] 153 This brings me to a consideration of the range of sentence for persistent trafficking of cocaine over a three-month period largely at the street level without consideration of the criminal organization component present here. . . . [omitting overview cases on range of sentence for trafficking cocaine] 157 It was my view then, and it remains my view now, that while the range of sentence for trafficking in small quantities of crack cocaine is six months to two years less a day, the range is higher when the offence involves long-term, persistent trafficking, particularly where that is the sole or primary source of the offender's livelihood. One of the reasons for this is the fact that unlike most street dealers, who obtain a few grams of cocaine and then sell 1/4 or 1/2 gram amounts, a persistent seller needs to obtain much larger quantities of cocaine, sometimes even ounces of cocaine, and as a result must have access to vendors at a higher level in the chain of distribution. In such circumstances, I believe the range to be two years less a day to four years. Where a street-level trafficker also occasionally traffics at a wholesale level, the top of the range or higher is appropriate. 158 Of course in this case, as I have noted, the offence in Count 1 is aggravated by the fact that the trafficking is for the benefit of or in association with a criminal organization. The criminal organization here is unsophisticated and not highly organized. Nonetheless, as I have also noted, it used violence and intimidation to protect its territory, and as a result it posed an enhanced threat to the community in which it functioned. In my view, in this case, this should result in an increase in sentence in the neighbourhood of two years. As a result, it is my view that the appropriate range of sentence for this offence is four to six years.

Case (Charges)	Facts	Aggravating Factors	Mitigating Factors	Sentence
R. v. Hersi, 2015 ONSC 5371, Aff’d 2018 ONCA 1082	Trial Criminal Organization wiretap case. Sentence After Jury trial. Hersi offered to traffic 3 firearms (amongst other offences) and guilty of committing those offences for benefit of the organization. Mahadale guilty of offering to traffic 1 firearm and related Criminal Organization offence. Appeal Appeal by the accused Hersi and Mahadale from convictions and sentence (Hersi only) for gang-related criminal offences, including trafficking in firearms.	Hersi Related serious criminal record. Trial Court found Hersi was CEO of organization in widescale criminal activity across Canada. Mahadale Related Serious Criminal record. Trial court found Mahadale had been a leader of organization but scaled back his activities for medical reasons.	Hersi was 22 years old. Mahadale relative youth and had family support.	Hersi Total 13 years. Included 5 years for firearm trafficking by offer 3 years consecutive on related 467.12 offence. Upheld on Appeal. Mahadale 5 years for firearm trafficking by offer 3 years consecutive on related 467.12 offence.
R. v. Jones et al., [2014] O.J. No. 6738 (C.J.) R. v. Waldron, 2015 ONCA 586	Waldron found guilty after trial of offering to transfer 6 firearms multiple accused acted as brokers for firearm and ammunition sales	Accused’s motive “entirely profit driven” and accused knew guns would be used for criminal purpose	29-year old accused with no criminal record with employment and school options Since arrest, accused had become involved in his church and had support of community there Offender’s upbringing “dysfunctional and chaotic”	5 years jail upheld by OCA
R. v. Reid, 2016 ONCA 524 Leave to appeal dismissed [2016] S.C.C.A. No. 432	Accused found guilty of possession of 37 firearms (24 of them handguns) for the purpose of trafficking	40-year old accused described as “recidivist who has accumulated four dozen convictions over about two decades”.		12-year sentence less credit for pre-sentence custody upheld on appeal though credit for pre-sentence custody increased.
R. v. Howell, 2007 50875 (ON SC)	After an unsuccessful Charter motion, the accused admitted the Crown’s case and was found guilty of 1 firearm trafficking offence & 8 other unspecified weapons charges and one count of possession of the proceeds of crime; 2 of the firearm offences were stayed (presumably due to R. v. Kienapple) Police found 3 rifles (2 of which were prohibited firearms) and ammunition in the accused’s car and 4 rifles (2 prohibited), a revolver (prohibited) and more ammunition at accused’s home.	The fact the accused had all of the firearms to sell was an aggravating factor.	The accused was 22 years old, and had a two-year-old daughter No criminal record with real prospects for rehabilitation	4 years jail less credit for time served and minimal credit for time on house-arrest bail.
R. v. Bullens, 2018 ONSC 5028 Offer to transfer a f/a and breach of a weapon prohibition	wire investigation captured calls where accused was offering to sell a f/a and ammo for $2500 while on a s.109 order for life	Criminal record with 2 prior f/a convictions Gang affiliation, returned to criminality for financial gain	Continuously employed Received GED in jail Provides for his 3 children Opiate addiction Supportive family	6 years for transfer and 1.5 years for breach
R. v. Green, 2015 ONSC 6290 sentence reduced on appeal 2017 ONCA 244	Accused found guilty after trial of trafficking firearm x7 and possession of firearm for purpose of trafficking x 16. Accused had FAC and purchased firearms over a 11/2 year period and then sold them to unlicensed purchasers.	7 of the firearms he sold were connected to a crime	24-year old accused with no criminal record and supportive family had begun university studies	8-year sentence Reduced on appeal to give credit for time on house-arrest bail
R. v. Winchester, 2014 ONSC 2591	Accused plead guilty to conspiracy to traffic firearm x2, traffic firearm x11, possession of firearm for purpose of trafficking x20. Accused had FAC and purchased firearms over 5-month period. Accused purchased 47 handguns, providing 43 of them to his friend who had suggested the scheme	7 of the firearms he sold were connected to a crime	25-year old accused with no record. Accused had 2 young children	8-year sentence less credit for pre-sentence custody
R. v. Marakah, 2015 ONSC 1576	Accused found guilty after trial of conspiracy to traffic firerarms x3, traffic firearms x2, possession of firearms x2. Total of 7 firearms involved. Accused was the friend in R. v. Winchester, supra who had suggested that friend (with FAC) buy 13 handguns for him. Accused then sold all but one of those firearms on to 3rd parties	2 of the firearms the accused sold on to 3rd parties were found at/connected to crime scenes	24-year old accused with one finding of guilt as a youth. Accused had family/community support	9-year sentence less credit for pre-sentence custody
R. v. Santapaga unreported December 17, 2013 – McArthur J. – Ont. C.J.	Accused plead guilty to traffic firearm and possession of firearm for purpose of trafficking x14. Accused pressured by person he owed money to obtain FAC and make firearms purchases on behalf of that person. Purchases made over 7-month period	Accused and family under severe financial pressure leading to him taking illegal loan that quickly ballooned beyond his ability to manage. Lender threatened accused. 46-year old accused with no criminal record		9-year sentence less credit for pre-sentence custody
R. v. Farah, 2016 ONSC 5000	Accused was found guilty after trial of firearms trafficking for benefit of a criminal organization, conspiracy to traffic a firearm, possession of a firearm. Accused found to be a leader of “Dixon City Bloods” street gang	Lengthy criminal record “one of the veteran leaders” of street gang	33-year old accused with “college/university” education and supportive family	12-year sentence less credit for pre-sentence custody

[^1]: Messrs. Allison and Cunningham re-elected to be tried judge alone before me. This election was made at a time when access to jury trials was reduced due to the COVID-19 pandemic. They also agreed to participate in their trial using Zoom at a time when there was some reluctance to proceed using this platform. [^2]: 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 [^3]: 2006 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.) [^4]: R. v. Allison, 2020 ONSC 7187 [^5]: See R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, aff’d 2013 ONCA 677, 117 O.R. (3d) 401, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773 [^6]: See R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 80 [^7]: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.) [^8]: R. v. Poyser (17 March 2021), Toronto, CR-20-50000150 (S.C.J.) [^9]: 2015 ONSC 5378 and 2018 ONCA 1082 [^10]: Mr. Hersi was given concurrent sentences for other offences. [^11]: [2020] O.J. No. 692 (ONSC) [^12]: 2019 ONSC 1640 [^13]: [2007] O.J. No. 4585 (S.C.J.) [^14]: [2018] B.C.J. No. 2947 (BCPC) [^15]: [2013] O.J. No. 1102 (S.C.J.) [^16]: R. v. Burns (2010), 2010 SKPC 72, 360 Sask. R. 295 (P.C.) [^17]: 2006 SCC 56 [^18]: See: Larche, at paras. 50-54 [^19]: 2003 SCC 6, [2003] 1 S.C.R. 41 [^20]: R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532 (ONCA) para. 77-78 [^21]: (1996), 1996 1381 (ON CA), 110 C.C.C. (3d) 289 (Ont. C.A.) [^22]: (2003), 2003 4187 (ON CA), 172 C.C.C. (3d) 225 (Ont. C.A.), at para. 3 [^23]: 2013 ONCA 147, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575 [^24]: 2006 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.) [^25]: 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.) [^26]: I have rounded Mr. Cunningham’s pre-sentence custody up from 7 months, 10 days to 8 months.```