A. Overview

[1] Mr. Bishop pled guilty to two counts of knowingly transferring a firearm contrary to s. 99(1) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] In March 2018, Mr. Bishop bought two handguns and ammunition using his government issued Possession and Acquisition Licence (PAL) and sold them for $2,500 to someone who went by the nickname “Bossman”. Mr. Bishop knew Bossman could not buy the firearms himself. Mr. Bishop bought four other guns (three handguns and a rifle) using his PAL for Bossman. Mr. Bishop was arrested before the four additional guns were given to Bossman. The two handguns Mr. Bishop sold to Bossman have not been recovered.

[3] Deciding what sentence is just and appropriate in this case is not easy. Mr. Bishop committed extremely serious offences for financial gain. The sentence he receives must denounce his conduct in the clearest of terms and, to the extent possible, deter him and others from engaging in similar conduct in future. But the sentence must also fairly reflect the mitigating factors in this case and Mr. Bishop’s personal circumstances. The Crown argues that the fit sentence for Mr. Bishop is five years in custody. Mr. Bishop argues that he should be given a conditional sentence.

[4] The Criminal Code specifies that a conditional sentence is only available if four conditions are met:

(i) a sentence of less than two years imprisonment is appropriate in Mr. Bishop’s case;

(ii) it would not endanger the safety of the community to have Mr. Bishop serve his sentence in the community;

(iii) a conditional sentence would be consistent with the applicable principles of sentencing; and

(iv) Mr. Bishop’s offences are not punishable by a mandatory minimum term of imprisonment.[^1]

[5] Knowingly transferring a restricted firearm has a mandatory minimum sentence of three years imprisonment.[^2] That mandatory minimum sentence has been declared unconstitutional in at least four decisions of this Court.[^3] While those decisions are not binding on me, I must follow them unless I find that they are plainly wrong.[^4] I see no reason to reject the decisions of this Court that have found the mandatory minimum for knowingly transferring a restricted firearm to be unconstitutional. I will, therefore, proceed on the basis that there is no mandatory minimum sentence in this case, thus eliminating one of the impediments to a conditional sentence in this case.

[6] Mr. Bishop argues that a sentence of less than two years is appropriate. Mr. Bishop also argues that it would not undermine public safety or the principles of sentencing to allow him to serve that sentence in the community. In the alternative, Mr. Bishop argues that if I find a sentence of two years or more is necessary to satisfy the principles of sentencing, s. 742.1 of the Criminal Code is unconstitutional insofar as it restricts the availability of conditional sentences to cases in which the court imposes a sentence of less than two years.

[7] For the reasons that follow, I find the appropriate sentence is four years in custody. Notwithstanding the mitigating factors and Mr. Bishop’s personal circumstances, I find that a conditional sentence, no matter its length, would be inconsistent with the principles of sentencing given the seriousness of these offences. I, therefore, do not need to address the constitutionality of s. 742.1 of the Code.[^5]

B. Putting Mr. Bishop’s Offences in Context

[8] Gun crime is a persistent, pervasive threat to public safety in Toronto. Gun violence has a devastating impact on its victims, their families and our community. Trafficking in firearms is particularly serious. It puts guns in the hands of those who will use them to further other criminal activities or to threaten, harm or kill other people. Because of the exceptionally serious nature of these crimes, the paramount principles of sentencing in this case are denunciation, deterrence and public safety.[^6] The sentence I impose must send a clear message to Mr. Bishop and the rest of society that trafficking in firearms simply will not be tolerated.

C. What is the sentencing range for trafficking firearms?

[9] Courts in Ontario have imposed a wide range of sentences in cases involving the trafficking of firearms. The Crown suggests that the sentencing range for a case involving multiple handguns sold for profit is three to nine years’ imprisonment. I will summarize a few decisions to illustrate the types of cases that attract sentences at the high and low end of the range proposed by the Crown.

[10] In R. v. Green, the trial judge imposed an eight-year sentence, which is at the high end of the range.[^7] Mr. Green was found guilty after trial of using his firearm licence to buy 23 firearms over an eight-month period. Several of the firearms Mr. Green trafficked were recovered at other crime scenes and some had been used to shoot people during the commission of other offences. Mr. Green had no criminal record and very good rehabilitative prospects. Nonetheless, the Court held that the severity of his offences warranted a lengthy term of imprisonment.

[11] Similarly, the court imposed an eight-year sentencing in R. v. Winchester. Mr. Winchester used his firearms licence to buy 47 handguns over a five-month period. He sold 43 of those handguns to a friend. Some of the handguns he sold were recovered at other crime scenes. Thirty of the guns were not recovered. Mr. Winchester had no criminal record and was only 23 years old when the offences were committed. At the time of his sentencing, Mr. Winchester was married with two young children. The trial judge held that an eight-year global sentence was appropriate in that case given Mr. Winchester’s age, his lack of any prior criminal conduct, his pleas of guilt and his remorse.[^8]

[12] In R. v. Hewitt, the Court of Appeal upheld a three-year sentence for trafficking nine non-restricted long guns. This case falls at the low end of the range proposed by the Crown. Some of the guns Ms. Hewitt transferred had the serial numbers removed and at least one of was stolen. Ms. Hewitt had no criminal record. She pled guilty and pursuant to a joint submission was given the three-year mandatory minimum sentence. On appeal, Ms. Hewitt argued the mandatory minimum sentence was unconstitutional and she should have received a two-year sentence. The Court of Appeal declined to rule on the constitutionality of the three-year mandatory minimum sentence. The Court found that even if there were no mandatory minimum sentence, a three-year term of imprisonment was appropriate.[^9]

[13] Counsel also provided several cases where sentences of less than two years were imposed in gun trafficking cases, including two cases where the court granted a conditional sentence. Again, it is helpful to summarize the facts of those cases to illustrate when sentence below the range proposed by the Crown may be appropriate.

[14] In R. v. De Vos, the trial judge imposed an 18-month sentence.[^10] Mr. De Vos was found guilty of purchasing three Glock handguns and transferring them to the person who supplied him with drugs. Mr. De Vos was heavily addicted to drugs at the time of his offences. Mr. De Vos had no criminal record. Importantly, Mr. De Vos cooperated fully with the police. He testified against his dealer, who was convicted and sentenced to six years in custody for buying the handguns from Mr. De Vos.[^11] The Court accepted that the three-year mandatory minimum sentence was unconstitutional but nonetheless held that a conditional sentence would not adequately express society’s condemnation of trafficking in firearms.[^12]

[15] In R. v. Bajwa, the court granted a conditional sentence of two years less a day. Ms. Bawja pled guilty to trafficking two firearms. She bought two Glock handguns using her firearms licence and gave them to her ex-boyfriend. Ms. Bajwa did not benefit in anything way from the offence. Ms. Bajwa was a youthful first offender with a very young child. In addition, Ms. Bajwa cooperated with the police and the two guns were recovered. The court recognized that it will be rare for a conditional sentence to be sufficient to denounce and deter trafficking in firearms. The Court found that a 12-month term of imprisonment would be the appropriate sentence. The Court also found that having Ms. Bajwa serve a 12-month sentence in the community would not adequately denounce and condemn her conduct. Nonetheless, the Court held that a two-year conditional sentence with virtual house arrest could, in the unique circumstances of that case, satisfy the principles of denunciation and deterrence.[^13]

[16] Finally, in R. v. Sauve, the court granted a 9-month conditional sentence.[^14] Mr. Sauve was 19 years old at the time of the offence. He drove from Ottawa to Kingston to pick up something for a friend. The Court found that Mr. Sauve was willfully blind and, on that basis found that he knew he was picking up a handgun. Mr. Sauve had no criminal record. The Court found the mandatory minimum sentence was unconstitutional and imposed a 9-month conditional sentence. The Court noted three other important mitigating factors: Mr. Sauve did not organize the transaction, he did not profit from the transaction, and he was only in possession of the firearm for a very brief period of time. In my view, the facts in R. v. Sauve are so different from the facts before me that it is of little assistance in deciding the appropriate sentence for Mr. Bishop.

[17] The broad range of sentences imposed in these cases reflects the reality that the offence of knowingly transferring a firearm can be committed in a wide variety of circumstances. As the Supreme Court has recognized, sentencing ranges are “nothing more that summaries of the minimum and maximum sentences imposed in the past.”[^15] While past decisions provide some guidance, sentencing remains a highly individualized process. Where Mr. Bishop falls within the broad sentencing range depends on the seriousness of his offence, his level of moral culpability and his unique personal circumstances.[^16]

[18] In my view, Mr. Bishop’s case falls in the middle of the range of sentences imposed in other cases. On the one hand, Mr. Bishop’s case is less serious than Green for several reasons. Most importantly, Mr. Bishop pled guilty. In addition, he transferred fewer guns over a shorter period of time than in Green. There is also no evidence that the guns he sold to Bossman have been used in the commission of any other offence. Mr. Bishop’s case is also less serious than Winchester for many of the same reasons.

[19] On the other hand, Mr. Bishop’s case is more serious than De Vos and Bajwa. There are several aggravating factors present in Mr. Bishop’s case that were not present those cases. First, although Mr. Bishop only sold two firearms to Bossman, he had purchased four more with the intention of selling them to Bossman. The number of firearms involved in Mr. Bishop’s case is, therefore, higher than either De Vos or Bajwa. Second, Mr. Bishop was motivated by financial gain and profited from his offences.

[20] There is also an important mitigating factor in both De Vos and Bajwa that is not present here. In both those cases, the defendants cooperated fully with the police. Mr. De Vos testified against the person to whom he sold the firearms. Ms. Bawja cooperated with the police so they could retrieve the firearms she gave to her former partner. Mr. Bishop chose not to identify Bossman or cooperate with the police in their efforts to recover the guns. Mr. Bishop was not required to assist the police. He had every right not to disclose information about Bossman’s identity. His decision not to cooperate is not an aggravating factor. It simply means he is not entitled to the credit he would have received in mitigation of his sentence if he had cooperated with the police and the firearms were recovered.

[21] I also find that Mr. Bishop’s offences are more serious than in Hewitt. That case involved non-restricted long guns. Mr. Bishop traffic or intended to traffic five restricted handguns plus a riffle and ammunition.

[22] I, therefore, find that the fit sentence in this case will be longer than three years but shorter than eight years. Precisely where Mr. Bishop’s sentence should fall within that range requires a careful balancing of the mitigating and aggravating factor.

D. Relevant aggravating and mitigating factors

[23] There are two important factors other than the number and nature of the guns Mr. Bishop sold or intended to sell to Bossman that make the circumstances of this case particularly serious.

[24] First, Mr. Bishop abused the privilege that comes with having a government issued Possession and Acquisition Licence to commit these offences. Mr. Bishop first obtained a PAL for restricted and non-restricted firearms in August 2012. His first PAL expired in September 2017. Mr. Bishop applied for and received a new PAL with the same privileges in November 2017, which was still valid in March 2018 when he bought the first two handguns and ammunition for Bossman. Mr. Bishop used his licence to buy guns for Bossman knowing that Bossman was not able to purchase the handguns himself.

[25] Mr. Bishop also used his PAL to purchase the four other firearms using Bossman’s money. Mr. Bishop intended to give those guns to Bossman as well. The four firearms were held at the stores after Mr. Bishop bought them while the process of registering them to him under his PAL was completed. Mr. Bishop was arrested before he picked up the four additional firearms. Nonetheless, Mr. Bishop used his licence to buy those guns with the intention of giving them to someone who did not have a licence to possess them.

[26] Second, Mr. Bishop planned and carried out these offences with some level of sophistication over several days or weeks. Mr. Bishop and Bossman used an encrypted method of communications so their calls could not be traced. Mr. Bishop purchased the firearms from two different stores on different days. Mr. Bishop and Bossman acted in a covert manner in the stores to avoid suspicion. This was not a single, spontaneous error in judgment on Mr. Bishop’s part. It was a planned and deliberate scheme that Mr. Bishop pursued for financial gain.

[27] Defence counsel urged me not to let the risk of harm that firearms pose overwhelm my analysis of the seriousness of these offences. Defence counsel argued that these are essentially “non-violent” offences because nobody was harmed. The circumstances of this case would have been much more serious if someone had been hurt or killed by one of the firearms that Mr. Bishop sold to Bossman. However, the fact that nobody has been hurt yet does not make these offences less serious. Mr. Bishop sold two handguns and ammunition to someone he knew could not buy them himself and intended to traffic four others. He knowingly contributed to the devastation that is caused by the illegal possession of handguns. The risk to public safety caused by his conduct could continue for years to come because the guns he sold to Bossman have not been recovered.

[28] The number and nature of the firearms involved, the use of a government issued licence to carry out these offences and the degree of planning involved make these offences particularly serious and heighten Mr. Bishop’s moral culpability. However, there are several significant mitigating factors that must also be considered when determining the appropriate sentence.

[29] First, Mr. Bishop pled guilty and has taken full responsibility for his conduct. He is entitled to significant credit for that.

[30] Second, Mr. Bishop is clearly remorseful and feels real shame for what he has done.

[31] Third, Mr. Bishop has no criminal record. He is 42 years old and has never been involved in the criminal justice system before.

[32] Fourth, I am satisfied that these offences are out of character for Mr. Bishop. I had the benefit of an Enhanced Pre-Sentence Report, which paints a compelling picture of Mr. Bishop as a hard-working person who is entirely dedicated to his family. The Enhanced Pre-Sentence Report describes in significant detail the circumstances that contributed to Mr. Bishop’s decision to commit these offences. In fashioning a just and appropriate sentence, I am entitled to consider Mr. Bishop’s personal experiences as well as systemic factors that played a role in Mr. Bishop’s offence.[^17]

[33] Mr. Bishop was born in Toronto. At the age of four, he moved to Trinidad with his mother after his parents separated. Mr. Bishop experienced significant poverty in Trinidad but his extended family was very close and supportive. When Mr. Bishop was 11 years old, his mother sent him back to Canada to live with his father. It was her hope that Mr. Bishop would get a better education and have better job opportunities in Canada. Unfortunately, Mr. Bishop’s father did not welcome him back. By the time Mr. Bishop moved back to Canada, his father had a new wife and two other children. Mr. Bishop feels like his father abandoned him. As the Enhanced Pre-Sentence Report writer notes, the hope for prosperity that motivates many Caribbean families to send their children to North America often “eclipses the possibility of emotional trauma that can result, when healthy attachment is disrupted.” Mr. Bishop continues to be affected by the emotional trauma he experienced when he returned to Canada, when his relationship with his mother was disrupted.

[34] Mr. Bishop eventually completed high school. He experienced housing and income insecurity for several years but did his best to support himself. Mr. Bishop never gave up on his dream of pursuing a career in the arts and when he was 34 years old, he was accepted into film school. Mr. Bishop graduated with high distinction in 2016. Mr. Bishop is rightly very proud of this accomplishment. Unfortunately, Mr. Bishop’s student loans and his lack of income during film school put significant financial strain on his family.

[35] By 2016, Mr. Bishop was married with a young child. His wife has a child from a previous relationship who was living with them as well. Mr. Bishop also has a child from an earlier relationship. Mr. Bishop had a very hard time finding stable work in the film industry after he graduated. The Enhanced Pre-Sentence Report notes that there are not many leading parts in large film and television projects for black actors. Black actors are usually cast in smaller, occasional roles. Despite these systemic challenges, Mr. Bishop secured some acting work and some work on film sets. But it was not enough to sustain his family.

[36] Mr. Bishop ended up taking on more debt to support his family, which exacerbated their financial difficulties. Although his wife was working, her income alone could not support their family. Mr. Bishop felt desperate, broken and suicidal. In his statement to the Enhanced Pre-Sentence Report writer, Mr. Bishop said, and I accept, that he agreed to buy firearms for Bossman out of desperation. He explained that the money he was being offered would give him “breathing space” to get back on track. I accept that Mr. Bishop has worked very hard to support himself and his family. I also accept that but for his personal and financial crisis after film school, he would not have agreed to sell guns to Bossman.

[37] Mr. Bishop’s personal circumstances do not, of course, justify or excuse his decision to traffic firearms. His personal circumstances do not reduce the seriousness of his offences, which must remain the paramount consideration on sentencing. Nonetheless, his personal experiences played an important role in his decision to commit these offences and mitigate personal culpability to some extent.[^18]

[38] Finally, I am satisfied that Mr. Bishop has strong rehabilitative prospects. Mr. Bishop’s wife continues to be a source of support for him. She wrote a letter that was filed as an exhibit at Mr. Bishop’s sentencing hearing. She describes Mr. Bishop as reliable, hard-working and devoted to his family:

One thing I can say for sure is that family means everything to Shaun. His children are the driving force to him working so hard in his acting career. Shaun is a good family man with a big heart. His children adore him, his family loves him and I know no matter what happens in the future he will rise above his mistakes because of his integrity, hard work and dedication to his family and career.

[39] Mr. Bishop is naturally very worried about the impact a custodial sentence will have on his relationship with his children. I received several videos and photographs of Mr. Bishop with his son at various stages of his son’s life, which show their close and loving relationship. Mr. Bishop told me he is committed to maintaining a healthy, supportive relationship with his children no matter what sentence I impose.

[40] I also received letters of support from Mr. Bishop’s cousin and from one of his colleagues, both of whom describe him as a mentor and role model. Mr. Bishop was offered a job with a start-up media company to be the Director of Operations and has been offered several acting jobs.

[41] Mr. Bishop’s commitment to his family, friends, colleagues and his career, and the support he has in the community will serve him well in future and give me confidence that Mr. Bishop will find a way to be a productive member of his community again when his sentence is over.

E. Conclusion

[42] Defence counsel argued that applying the principle of restraint, I should only impose a term of imprisonment if no other penalty will satisfy the principles of sentencing.[^19] I agree. However, there are some cases in which the need for denunciation is “so pressing that incarceration will be the only way in which to express society’s condemnation of the offender’s conduct.”[^20] In my view, this is one of those cases where incarceration is the only sentence that will adequately denounce Mr. Bishop’s conduct notwithstanding all the mitigating factors.

[43] I am sympathetic to Mr. Bishop’s personal circumstances at the time he committed these offences and the trauma he has experienced. I am also sympathetic to the impact this sentence will have on Mr. Bishop’s family, especially his children. The Enhanced Pre-Sentence Report describes Mr. Bishop as a good person who has worked very hard to find stability in his life after experiencing family trauma early on. However, Mr. Bishop made a deliberate decision to traffic several handguns knowing what he was doing was illegal and would threaten the safety of his community. His personal circumstances and the other mitigating factors do not justify giving Mr. Bishop a sentence at or below the bottom end of the range of sentences imposed in comparable cases.

[44] Even if I could grant a conditional sentence for a period of two years or more, a conditional sentence would not be appropriate in this case. A term of imprisonment is the only sentence that will adequately reflect the seriousness of these offences and denounce Mr. Bishop’s conduct. Given this finding, I need not consider Mr. Bishop’s challenge to s. 742.1 of the Criminal Code. Even if I were to find that the restriction on the availability of conditional sentences to cases involving sentences of less than two years were unconstitutional, it would not change the outcome of this case.[^21]

[45] I find that a sentence of four years in prison is proportionate to the gravity of Mr. Bishop’s offences and his moral responsibility and is consistent with the applicable principles of sentencing in this case. Mr. Bishop spent 8 days in pre-trial custody on these charges. He is entitled to 12 days credit for his time in pre-trial custody.[^22] Mr. Bishop is, therefore, sentenced to 4 years less 12 days on each count to be served concurrently.

[46] Mr. Bishop will be required to provide samples of his bodily substances for the purpose of forensic DNA analysis.[^23] Mr. Bishop is also prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive for file pursuant to s. 109 of the Criminal Code for life.[^24]

Davies J.

Date of Oral Reasons: June 24, 2021

Date of Release: June 25, 2021

COURT FILE NO.: CR-19-30000165-0000

DATE: 20210624

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

SHAUN BISHOP

REASONS FOR SENTENCE

Davies J.

Date of Oral Reasons: June 24, 2021

Date of Release: June 25, 2021

[^1]: Criminal Code. s. 742.1 [^2]: Criminal Code, s. 99(2)(a) [^3]: R. v. DeVos, 2018 ONSC 6813, R. v. Sauve, 2017 ONSC 7375, R. v. Harriott, 2017 ONSC 3393 and R. v. Hussain, 2015 ONSC 7115. [^4]: R. v. Sullivan, 2020 ONCA 333 at para. 38, R. v. Scarlett, 2013 ONSC 562 at para. 43 [^5]: R. v. Hewitt, 2018 ONCA 561 at para. 5, R. v. Chambers, 2013 ONCA 680 at para. 46; R. v. Lloyd, 2016 SCC 13 at para. 18 [^6]: R. v. Brown, 2010 ONCA 745 at para. 14 [^7]: 2015 ONSC 6290 [^8]: R. v. Winchester, 2014 ONSC 2591 [^9]: Hewitt at paras. 6 - 7 [^10]: De Vos at para. 63 [^11]: R. v. Gringas, June 12, 2017, unreported, Ontario Court of Justice, Downes J. [^12]: De Vos at paras. 52 - 53 [^13]: R. v. Bawja, 2020 ONSC 185 at para. 35 [^14]: Sauve at para. 54 [^15]: R. v. Lacasse, 2015 SCC 64 at 57 [^16]: Lacasse at 58 [^17]: R. v. Borde, 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (CA) at para. 32; R. v. Rage, 2018 ONCA 211 at para. 13; R. v. Hamilton, 2004 CanLII 5549 (ON CA), [2004] 72 O.R. (3d) 1 (CA) at paras. 134 – 135. [^18]: Hamilton at para. 139 [^19]: Hamilton at para. 98 [^20]: R. v. Proulx, 2000 SCC 5 at para. 106 [^21]: Hewitt at para. 5, Chambers at para. 46; Lloyd at para. 18 [^22]: Criminal Code, s. 719(3.1) [^23]: Criminal Code, ss. 487.04 and 487.051(1) [^24]: Criminal Code, s. 109(3)

R. v. Bishop, 2021 ONSC 4545

Case Summary

A. Overview

B. Putting Mr. Bishop’s Offences in Context

C. What is the sentencing range for trafficking firearms?

D. Relevant aggravating and mitigating factors

E. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legislation 6