Court File and Parties

COURT FILE NO.: CR-19-4-687 DATE: 20210624 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAQUON DAWKINS

Counsel: Elizabeth Jackson and Philip Tsui, for the Crown Sevag Yeghoyan, for Daquon Dawkins

HEARD: June 3, 2021

Reasons for Sentence

P.J. Monahan J.

[1] After a trial without a jury, I found Daquon Dawkins guilty of the following Criminal Code offences: unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1); possession of a restricted firearm knowing that he was not the holder of a required license and registration certificate, contrary to s. 92 (1); and possession of a firearm while being prohibited from doing so, contrary to s. 117.01 (1). Mr. Dawkins is before the court today for sentencing.

Circumstances of the Offences

[2] Mr. Dawkins was arrested on the evening of December 2, 2018. The police searched a backpack he was carrying and found a loaded semi-automatic handgun hidden in a sock.

[3] It was agreed that the handgun is a "Restricted Firearm" and that the ammunition that was loaded in the firearm is "ammunition", both as defined in s. 84 of the Criminal Code. Accordingly the only issue at trial was whether Mr. Dawkins had knowledge of the presence of the handgun in the backpack sufficient to establish he was in legal possession of it.

[4] Mr. Dawkins testified in his own defence. His evidence was that the backpack belonged to a friend of his who had inadvertently left it in the trunk of the vehicle he was driving, and that he was unaware of the fact that the backpack contained a handgun.

[5] I rejected his evidence as implausible and contradictory. Based on the evidence which I accepted, primarily the testimony of the police officers who arrested him, I found that the Crown had proven beyond a reasonable doubt that Mr. Dawkins was aware of the handgun, that he was legally in possession of it, and that he was therefore guilty of the offenses charged.

Circumstances of Mr. Dawkins

[6] A Pre-Sentence Report (PSR) was prepared which contained helpful information regarding Mr. Dawkins' background and circumstances.

[7] Mr. Dawkins was born in Jamaica in December of 1992. When he was young his mother relocated to the United States and in his early years he was raised by his father and other family members in Jamaica. When he was 10 years old he moved to the U.S. and began living with his mother. Shortly thereafter he and his mother immigrated to Canada.

[8] Mr. Dawkins reports that he has a positive relationship with his mother and his stepfather. His biological father continues to reside in Jamaica and Mr. Dawkins has contact with him by telephone.

[9] Mr. Dawkins' education in Canada was interrupted by his arrest while in grade 11 for drug-related offences. He was able to complete his high school diploma while in custody.

[10] Mr. Dawkins has been employed in construction and has also worked as an apprentice carpenter. As part of the materials submitted on sentencing, he provided a written job offer from a carpentry company for a position as an entry level carpenter.

[11] A number of years ago, Mr. Dawkins developed a committed relationship with AD. They moved in together and had a daughter, who is currently 4 years old. Although they have not lived together for some time, AD indicates that Mr. Dawkins is an exceptional father to their daughter.

[12] Mr. Dawkins' criminal record includes a 2013 conviction for aggravated assault, armed robbery, possessing a firearm without a license, and possession of a firearm while prohibited. The trial judge found that Mr. Dawkins and an associate planned and executed a drug robbery in which they stole approximately $800 worth of marijuana from the victim. During the robbery, Mr. Dawkins struck the victim in the head with a firearm. During a struggle with the victim, the firearm that Mr. Dawkins was carrying accidentally discharged. The bullet passed through the victim's neck and lodged in his shoulder. Fortunately, the victim survived and, after surgery, recovered from his injuries. Mr. Dawkins was sentenced to four years, one month and 19 days for the robbery, assault and firearm possession offences, and one year consecutive for the s. 117.01 breach of weapons prohibition offence, resulting in a global sentence of five years, one month and 19 days.

[13] Mr. Dawkins also has convictions entered in 2016 for trafficking in a Schedule 1 substance (marijuana and cocaine) and breaches of court orders. He received intermittent sentences ranging from 30 to 90 days for those offences.

Positions of the Parties

[14] The Crown seeks a sentence of eight years for the firearms possession offences and an additional 18 months consecutive for the s. 117.01 weapons prohibition violation. This would result in a global sentence of nine and a half years, prior to taking into account credit for time served. In the Crown's submission, principles of deterrence and denunciation are the primary considerations relevant in sentencing for gun crimes in Toronto. In this case, Mr. Dawkins was carrying a loaded firearm in a public place and was about to enter a motor vehicle, conduct which poses an extreme danger to the public. Given these aggravating factors, in the Crown's view a global sentence of nine and a half years is appropriate.

[15] Counsel for Mr. Dawkins proposes a sentence equivalent to time served, plus three years probation. Mr. Dawkins has been in custody since December 2, 2018. Taking into account Summers credit for 936 actual days in custody,[^1] plus enhanced Duncan credit for the over 400 days that Mr. Dawkins has been subject to lockdowns (for which counsel seeks an additional 1.5 days for each lockdown day),[^2] counsel calculates his total credit for pre-sentence custody is now approaching five and a half years. Counsel submits that five and a half years is an appropriate global sentence in the circumstances, even taking into account the primacy of considerations of denunciation and deterrence in sentencing for gun offences. On this basis, counsel urges the court to accept a time-served disposition plus probation.

[16] When given the opportunity to speak at the sentencing hearing, Mr. Dawkins took responsibility for his conduct and expressed remorse. He indicated that he understands the seriousness of gun crimes, having lost loved ones to such crimes in the past. He stated that at 28 years old and having been in custody for a substantial period of time, he no longer has contact with individuals in the community who were involved in his prior conduct. He expressed regret over having missed so much time away from his daughter, time that he cannot get back. He asked for leniency and another opportunity to turn his life around.

Applicable Sentencing Principles

[17] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^3] A proportionate or just sentence must have one or more of the following objectives:

i. to denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;

ii. to deter the offender and others from committing offences;

iii. to separate offenders from society, where necessary;

iv. to assist in the rehabilitation of offenders;

v. to provide reparations for harm done to victims or the community; and

vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.[^4]

[18] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. In imposing a sentence, the court shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances (the "parity principle"); the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (the "totality principle"); and the principle that courts should exercise restraint in imposing imprisonment (the "restraint principle").

[19] There has been extensive judicial commentary in recent years regarding the primacy of considerations of denunciation and deterrence in sentencing for gun crimes in Toronto. This jurisprudence reflects the dangers posed by loaded handguns, particularly in the City of Toronto.[^5] Moreover, the importance of the goals of denunciation and deterrence has not been diminished by the fact that in R. v. Nur,[^6] the Supreme Court of Canada found mandatory minimum sentences to be unconstitutional in certain cases of gun possession. Nur affirms that offenders convicted of "truly criminal conduct" in relation to firearms must receive exemplary sentences that emphasize deterrence and denunciation.[^7]

[20] As Code J. noted in R. v. Graham, there is now considerable guidance in the case law since the mandatory minimum sentences were struck down in 2013 as to the appropriate range of sentence for s. 95 (1) offences. After reviewing the relevant case law, Code J. concludes that, subject to exceptional or unusual circumstances, an appropriate total range of six to nine years is appropriate in cases involving s. 95 (1) recidivists who breach s. 109 orders. A similar conclusion was reached in R. v. Brown, where Kelly J. imposed a global sentence of seven years for a s. 95 recidivist who breached s. 109 weapons prohibitions.[^8] In R. v. Prince, Cavanagh J. adopted Code J.'s range of six to nine years for repeat s. 95(1) offenders and imposed an eight year sentence on an offender who had numerous prior firearms convictions.[^9]

[21] I therefore proceed on the basis that the appropriate sentence for a repeat s. 95 (1) offender who has violated a weapons prohibition ranges from six to nine years.

Analysis

[22] Amongst the aggravating circumstances in this case is the fact that Mr. Dawkins was carrying a loaded restricted firearm in public and was about to enter an automobile. This distinguishes the case from the least serious forms of the s. 95 offence that are in the nature of regulatory or licensing infractions. It also distinguishes it from less serious forms of criminal possessory offences, such as where a loaded handgun is hidden inside a residence and not carried around in public.[^10]

[23] Also aggravating is the fact that Mr. Dawkins has in the past demonstrated a willingness to use a firearm, as reflected in the assault and shooting of the robbery victim in his 2013 convictions.

[24] At the same time, there are a number of mitigating factors that must necessarily be taken into account in determining a just sentence for Mr. Dawkins. In particular, I note that Mr. Dawkins' prior firearms conviction was entered in 2013, and that the actual offence occurred in 2011 at a time when Mr. Dawkins was just 18 years. Thus this criminal record, while obviously troubling, is somewhat dated.

[25] I also take note of the fact that in cases where courts have imposed sentences at the upper end of the six-to-nine year range identified above, it has involved offenders with much more extensive criminal records than Mr. Dawkins'. For example, in R v Prince, the offender had three prior firearms convictions and 9 breaches of s. 109 orders and received a sentence of eight years. In R v David I imposed a global sentence of eight years on an offender with two prior firearms offences and over 40 other convictions.

[26] Although Mr. Dawkins did not plead guilty, at the sentencing hearing he did take responsibility for the offences and expressed remorse. I also accept that his regret over having been deprived of contact with his daughter as a result of his incarceration to be genuine. I note that despite being in custody, Mr. Dawkins has been able to secure an offer of employment. All of these factors lead me to conclude that there is some basis for cautious optimism with respect to Mr. Dawkins' prospects for rehabilitation.

[27] An additional mitigating factor in this case is the "Duncan" credit attributable to the particularly difficult and punitive presentence custody conditions to which Mr. Dawkins has been subjected. (Although generally referred to as a 'credit' in accordance with R. v. Duncan, consideration of exceptionally punitive conditions of incarceration is more properly understood as a mitigating factor to be taken into account, along with other mitigating and aggravating factors, in arriving at an appropriate sentence.[^11]) In Mr. Dawkins case this includes at least 405 days of lockdowns that he has experienced since December 2, 2018, as well as the very restrictive conditions in Toronto South and the health risks brought on by the Covid 19 pandemic since March 2020.

[28] During the sentencing hearing, Mr. Dawkins provided evidence as to the significant impact on him of these exceptional circumstances. Mr. Dawkins has been on full or partial lockdown for over 40% of his days in pre-sentence custody. Mr. Dawkins indicated that during lockdowns the inmates are limited to their cells, which he estimates to be approximately 12 feet by six feet. If they are allowed out of their cells at all, they are only permitted up to 30 minutes to complete a shower and make phone calls. Moreover, even these limited privileges can be cancelled by the superintendent.

[29] Mr. Dawkins also testified as to the significantly more restrictive conditions that have been imposed in the Toronto South since the onset of the Covid 19 pandemic in March of 2020. Since that time there has been no programming at the Toronto South and no visits from family or friends. On many days they have not been allowed out of the cells at all, sometimes for two or three days at a time, and on these days there is no opportunity to spend time outside or have showers. He describes his overall experience since March 2020 to be, in a word, horrible.

[30] As Doherty J.A. explained in Marshall, because the Duncan credit is one of the mitigating factors to be taken into account in determining a fit sentence, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[31] Taking all of these various aggravating and mitigating circumstances into account, (including the Duncan credit) I find that a fit global sentence for the offences committed by Mr. Dawkins to be six years.

[32] I would apportion that six-year sentence as follows:

a. five years and six months for count 1 – (unauthorized possession of a loaded restricted firearm, contrary to s. 95 (1));

b. three years for count 2 – (possession of a restricted firearm knowing that he was not the holder of a required license and registration certificate, contrary to s. 92 (1)) - to be served concurrently with the sentence for count 1; and

c. six months for count 3, breach of the weapons prohibition contrary to s. 117.01, to be served consecutively to the sentence for count 1. The sentence for count 3 is to be served consecutively as it constitutes a separate and distinct offence, namely, the breach of the weapons prohibition imposed in 2013. The principle that a breach of a weapons prohibition should normally result in a consecutive sentence reflects the fact that the disregard of firearm prohibition orders should not go unpunished.[^12]

[33] This results in a global sentence of six years, prior to taking into account Summers credit for pre-trial custody, a matter to which I now turn.

Credit for Pre-Sentence Custody

[34] As noted above, Mr. Dawkins has been in custody since December 2, 2018, a total of 936 days as of today. Both Crown and defence agree that Mr. Dawkins should receive Summers credit at the normal rate of 1.5 to 1, resulting in a total credit of 1404 days, or 3 years and 309 days.

[35] After deducting from Mr. Dawkins six year global sentence the 1404 days of Summers credit, the result is that he has completed his sentence on count 2; he has a total of one year and 238 days remaining to be served on count 1; at which time he will commence serving his six month sentence for count 3.

[36] Overall, he has 2 years and 56 days remaining to be served on his global six-year sentence.

Disposition

[37] Mr. Dawkins' global sentence of six years is to be entered as follows:

a. count 1 - unlawful possession of a loaded restricted firearm, s. 95 (1): five years and six months; after deducting the Summers credit of 1404 days, there is one year and 238 days remaining to be served on this sentence.

b. count 2 - unlawful possession of a restricted firearm, s. 92(1): three years, served concurrently with the sentence for Count 1; after deducting the Summers credit of 1404 days, this sentence has been completed.

c. count 3 - possession of a firearm while subject to a prohibition order, s. 117.01 (1): six months, to be served consecutively with the sentence for count 1. Accordingly, Mr. Dawkins will commence serving this sentence upon completion of the remaining sentence for count 1.

[38] In the result he has a global sentence of two years and 56 days remaining to be served.

[39] I also impose a s. 109 weapons prohibition for life.

P. J. Monahan J.

Released: June 24, 2021

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAQUON DAWKINS

REASONS FOR SENTENCE

P.J. Monahan, J.

Released: June 24, 2021

[^1]: See R. v. Summers, 2014 SCC 26 ("Summers")

[^2]: See R. v. Duncan, 2016 ONCA 754. As I explain below, the 'Duncan' credit is a mitigating factor to be considered in determining an appropriate sentence, as opposed to a credit to be deducted from what the court determines to be the appropriate sentence for the offence.

[^3]: Criminal Code, s. 718.1. See also R. v. Friesen, 2020 SCC 9 ("Friesen") at para 30.

[^4]: Criminal Code, s. 718.

[^5]: See R. v. Brown, 2010 ONCA 745, at paragraph 14; R. v. Graham, 2018 ONSC 6817, at paragraph 36.

[^6]: R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773 at paragraph 105.

[^7]: R. v. Slack, 2015 ONCA 94 at paragraph 23; R. v. Ellis, 2016 ONCA 598 at paragraph 78.

[^8]: R. v. Tiaven Brown, Ontario Superior Court File CR/18/50000462, released April 23, 2019.

[^9]: R. v. Prince, 2020 ONSC 6121 at paras 35 and 63. See also R. v. David, 2019 ONSC 3758.

[^10]: See R. v. Hector, 2014 ONSC 1970, where 6 years was imposed on a s. 95 recidivist in these less serious circumstances.

[^11]: See R. v. Marshall, 2021 ONCA 344 ("Marshall"), at para. 52.

[^12]: R. v. Claros, 2019 ONCA 626 at para. 51.