COURT FILE NO.: CR-20-50000-032
DATE: 20210630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
Philip Tsui, for the Crown
Susan von Achten, for the Offender
HEARD: February 8 - 11, 2021
REASONS FOR SENTENCE
M. Dambrot J.
[1] Kimani Phillips was tried by me without a jury on counts one and two in an eight-count indictment. He was charged with the offences of unlawful possession of a prohibited firearm, contrary to s. 92(1) of the Criminal Code, R.S.C. 1985, c. C-46, and unlawful possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code. Both counts relate to a Glock semi-automatic firearm loaded with 6 cartridges of ammunition that Mr. Phillips was alleged to have thrown out of an 11^th^ floor apartment window on December 5, 2018, just as police officers entered that apartment to execute a search warrant.
[2] On March 30, 2021, I found Mr. Phillips guilty of both count one and count two, subject to any argument about the application of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The Crown subsequently withdrew count one.
[3] On May 12, 2021, the offender pleaded guilty to counts three to seven in the same indictment, which allege the following offences:
Count 3: possession of a firearm while prohibited from doing so by reason of an order made in Brampton on April 11, 2017 pursuant to s. 109(2) of the Criminal Code, contrary to s. 117.01(1) of the Criminal Code
Count 4: failure to comply with a condition of a recognizance made in Guelph on January 12, 2018 not to possess any weapon, contrary to s. 145(3) of the Criminal Code
Count 5: failure to comply with a condition of a recognizance made in Guelph on January 12, 2018 placing him under house arrest and requiring that he remain in his residence, contrary to s. 145(3) of the Criminal Code
Count 6: failure to comply with a condition of a recognizance made in Guelph on January 12, 2018 not to be in contact with Kia Sampson, contrary to s. 145(3) of the Criminal Code
Count 7: failure to comply with a condition of a probation order made in Toronto on April 11, 2017 that he not possess any weapon, contrary to s. 733.1(1) of the Criminal Code
[4] All of these offences were committed on December 5, 2018, and all of them arise out of the same events as count two. I am now called upon to impose sentence.
THE OFFENCES
[5] I outlined the evidence in relation to counts one and two in detail in my reasons for judgment: 2021 ONSC 2326. I will not repeat that outline here. It is sufficient to provide a brief synopsis.
[6] On Wednesday, December 5, 2018, shortly after 5:00 a.m., members of the Toronto Police Service executed a search warrant at unit 1102, 3969 Kingston Road in Toronto, the residence of Kia Sampson. The offender, who was then and is now Ms. Sampson’s boyfriend, was the target of the warrant. He was spending the night at the apartment and was in bed with Ms. Sampson when the police arrived.
[7] The door of unit 1102 was breached at 5:00 a.m. after three hits of an iron battering ram. As the battering ram hit the door the first time, one of the police officers shouted, “Police, search warrant” three times in a loud, clear voice. When the door opened, the same officer shouted, “Police, search warrant” two additional times and entered the apartment. Other officers followed him in.
[8] Within moments after the police began entering the unit, the offender threw an object out of Ms. Sampson’s bedroom window. An officer stationed outside the building observed the object come out of an 11^th^-floor window, fall to the ground, bounce several times, and land on the laneway in front of the building. The officer quickly identified the object as a firearm.
[9] In fact, the firearm was a Glock semi-automatic handgun. The slide was “out of battery” from the impact, meaning that it had somewhat detached from the frame, and the recoil spring and a round of ammunition in the chamber were visible. Three full metal jacket rounds and six all-point rounds, one in the chamber and five in the magazine, were removed from the gun.
[10] The police seized a number of other items in Ms. Sampson’s bedroom, including a black scale, a black Bushnell rifle scope, ten cell phones and SIM cards, and a driver’s licence in the name of the offender. In addition, the police found $4,900 in Canadian currency and $325 in American currency secured with an elastic band in Ms. Sampson’s closet.
[11] Ms. Sampson was called as a witness by the Crown. She was originally co-accused with Mr. Phillips in respect of counts one and two, but those charges were withdrawn. On January 5, 2021, prior to testifying in this case, she pleaded guilty before another judge of this court to count eight in this indictment, which alleged a breach of a recognizance; Ms. Sampson had violated a term prohibiting her from communicating with Mr. Phillips. She had not yet been sentenced and had no other criminal record. Ms. Sampson testified that she had not seen a gun in her home, did not know that a gun was there, and did not “recall” a gun being thrown from her window. While I did not find that evidence to be particularly credible, I did believe her evidence that the money found in her closet and the scales were not hers. I also believed her evidence that seven of the ten cell phones found in her room were her old phones that she had not gotten around to selling, but one was her current phone and two others belonged to Mr. Phillips.
[12] In cross-examination, counsel for the offender questioned Ms. Sampson about the money found in her closet. Counsel asked Ms. Sampson if she knew “how Kimani had so much money”. She said she did not, but that she knew it was in a box in her closet. Ms. von Achten asked Ms. Sampson if she knew that Mr. Phillips sold drugs. She said she did not. She denied knowing that he was a drug dealer and that he earned the money through drug dealing, and she denied that she was involved in drug dealing with him. She maintained this position even after being told that evidence implicating her in an offence could not be used against her to prove she was guilty of that offence.
[13] An expert in the identification, classification, and analysis of firearms and their related components was called as a Crown witness. He examined and test-fired the gun and ammunition seized in this case and prepared a certificate of analysis in respect of them. He indicated that the firearm was a prohibited firearm within the definition in s. 84 of the Criminal Code. Specifically, it was a Glock, Model 43, 9 mm centrefire semi-automatic handgun with a barrel length of 85 mm and a 6-shot magazine; it functioned correctly as a semi-automatic handgun; and it was a barrelled weapon from which any shot, bullet, or other projectile could be discharged and that was capable of causing serious bodily harm or death to a person. He also certified that the 6 cartridges that had been seized were 9 mm centrefire ammunition. When test-fired in the firearm, the cartridges fell within the definition of ammunition in s. 84 of the Criminal Code.
[14] The firearm was found with a round of ammunition in the chamber. When asked about this, the expert said that the possibility of the gun loading itself upon hitting the ground was very slim. In his opinion, the gun did not self-load. He said that when a round is chambered in this fashion, it is ready to fire when the trigger is activated.
[15] Upon the guilty pleas to counts three to seven, the offender admitted that he was subject to the prohibition order, the recognizance, and the probation order referred to in those counts at the time of the commission of the offence in count two.
[16] On the sentencing hearing, Crown counsel adduced the evidence of D/Sgt. Deyell of the Ontario Provincial Police (“OPP”), who was qualified as an expert in indicia of drug trafficking. The purpose of this evidence was to establish that the offender possessed his gun for the purpose of committing criminal offences.
[17] D/Sgt. Deyell has served on the OPP for 22 years, the last 12 in relation to drug enforcement. He has extensive experience in the field, as a supervisor, and as a senior manager. He is presently a Unit Commander within the Organized Crime Enforcement Bureau, where his duties primarily include supervision of Controlled Drugs and Substances Act, S.C. 1996, c. 19, and Criminal Code investigations.
[18] D/Sgt. Deyell was asked to comment on several of the items seized in this case, individually and collectively.
[19] D/Sgt. Deyell testified that the possession of digital scales is a strong indicator of drug trafficking. Scales are an important tool for a drug trafficker; accurate weighing of substances for sale is important to ensure profits. Drug traffickers buy in bulk, then break those bulk amounts down to smaller amounts for sale to their customers. This happens at each level of the drug hierarchy down to the street level. End users do not generally have or use digital scales. D/Sgt. Deyell noted that there was corrosion on the scales in this case, consistent with being used to weigh methamphetamine, which is produced with caustic chemicals.
[20] D/Sgt. Deyell testified that the possession of two cell phones is also indicative of drug trafficking. Most everyone uses a cell phone today; however, few have two or more. But it is very common for those involved in drug trafficking to possess one phone strictly for drug trafficking activities.
[21] D/Sgt. Deyell testified that the possession of cash in the amount seized in this case is another strong indicator of drug trafficking. Cash in the context of drug and firearms trafficking allows for quick, clandestine transactions.
[22] D/Sgt. Deyell testified that the possession of a firearm, coupled with the other items, is also a compelling indicator of drug trafficking. The firearms trade is largely supported by the drug trade; drug traffickers seek weapons to protect themselves from other drug traffickers and to display a level of violence in order to prevent robberies and ensure debt payment by customers.
[23] When asked what his opinion was of the scales, cell phones, cash, and loaded firearm seized in this case, having regard to the fact that no drugs were found, D/Sgt. Deyell expressed the view that they were all tools of the drug trade and, in combination, were strong indicators of drug trafficking even in the absence of a drug seizure.
[24] I accept the evidence of D/Sgt. Deyell. The items he discussed are undoubtedly strong indicators of drug trafficking. I note, though, that in the absence of the seizure of any drugs in the Sampson residence, it is less certain that the items in question, and in particular the gun, were being used for drug trafficking. However, that shortcoming in the evidence is more than made up for by a consideration of the offender’s criminal history, which is described below. As will be seen, only 11 months earlier, he was engaged in trafficking significant quantities of dangerous drugs and had 3 contaminated weigh scales, a cell phone, and large sums of cash in his possession, including $6,000 secured in an elastic band. As a result, having regard to the totality of the evidence, I am satisfied beyond a reasonable doubt that at the time of these offences, the offender continued to be a trafficker of dangerous drugs, and that the paraphernalia found in Ms. Sampson’s bedroom, as well as the gun thrown out the window, were all his and were tools of the drug trade. Specifically, the gun was a weapon the offender possessed to protect himself from other drug traffickers and to display a level of violence in order to prevent robberies and ensure debt payment by customers.
[25] Finally, even if the offender did not possess the gun as a tool of his drug trafficking, there can be no doubt that he possessed it for a criminal purpose, such as committing robberies.
THE OFFENDER
[26] The offender is 23 years of age and has a grade 11 education. He and his sister were raised by their grandmother with the help of an uncle, who now has paraplegia. His father lives in the United States, and the offender has not had contact with him for a long time. His mother has mental health and drug addiction issues, and although she lives with his grandmother and sister, the offender does not speak to her.
[27] The offender was robbed and shot in 2017 while purchasing cannabis to take to a party. The bullet remains lodged in his foot. He has abused drugs to deal with the pain. He has been unemployed at times but has held jobs doing things such as working in a cookie factory and selling do-rags. He has tried to help his family and friends and is “good at fixing stuff around the house”.
[28] The offender has the following criminal record:
April 4, 2017:
(1) Obstruct a peace officer – suspended sentence and probation for three years
(2) Carry a concealed weapon – suspended sentence and probation for three years
(3) Possess a prohibited or restricted firearm with ammunition – 21 days’ imprisonment in addition to 519 days of pre-sentence custody and a mandatory weapons prohibition
(4) Fail to comply with a recognizance – 30 days’ concurrent and probation for 3 years
May 8, 2019:
(1) Possess a schedule I substance for the purpose of trafficking – 3 years and 117 days’ imprisonment in addition to 185 days of pre-sentence custody (credited as 248 days), and a mandatory weapons prohibition
(2) Possess a schedule I substance for the purpose of trafficking – 3 years and 117 days’ imprisonment, concurrent, in addition to 248 days of pre-sentence custody and a mandatory weapons prohibition.
[29] The first two April 4, 2017 convictions were for offences committed in Guelph on April 28, 2016. The second two relate to offences committed in Brampton on April 30, 2016.
[30] With respect to the Guelph offences, the police responded to a complaint that an unwanted man, who was in fact the offender, was sleeping in the hallway of an apartment building. The offender had apparently been locked out of his home. When the police located the offender, he gave them a false name. He explained that he did so because he was in breach of a bail. When he was later arrested for obstructing justice, he was found to have an extendable baton in his pocket. He was released on bail. It was a term of his recognizance that he not be in possession of any weapon.
[31] With respect to the Brampton offences, two days after the offender was released on the Guelph offences, police officers responded to a robbery in process call. The robber, who was the offender, had approached the complainant, struggled with him, ripped a gold chain worn by the complainant from his body, and fled. During the struggle, the offender reached for something in or around his waistband, but the complainant could not see what it was. The offender was arrested nearby with a 9 mm semi-automatic pistol concealed in the waistband of his pants. The firearm had one round of ammunition in the chamber and three rounds in the magazine. The sentencing judge observed, in the course of submissions, that the offender had the gun in his waistband to effect the robbery.
[32] The May 8, 2019 convictions relate to offences of possession for the purpose of trafficking of 14.75 grams of a mixture of heroin and fentanyl, of a value of $3,500, and 10.5 grams of crystal methamphetamine, of a value of $1,050, on January 4, 2018. These substances were seized in the offender’s bedroom in the apartment he shared with his grandmother, along with $11,900 in cash and three contaminated digital scales. The offender had a further $6,000 in an elastic band in one pocket, $256 in another pocket, and a cell phone when he was arrested. The offender was on bail for those offences when he committed the offences before me.
[33] When the offender committed the present offences, he was on probation in relation to the April 14, 2017 offences, subject to a mandatory weapons prohibition order, and on bail for the May 8, 2019 offences committed on January 4, 2018.
[34] I note that all of the offender’s pre-sentence custody has either been allocated to the May 8, 2019 offences or has occurred while serving sentence. In other words, he is not entitled to any additional credit.
[35] The offender says that he now wants to get on a better path in life and is interested in pursuing construction work and currency trading when he is released.
THE POSITION OF THE PARTIES
[36] The Crown asks that I impose a sentence of seven years’ imprisonment. Counsel for the offender at one point submitted that a sentence of four years and six months is appropriate, while at another point said that a sentence of four years would be appropriate.
ANALYSIS
[37] In determining the appropriate sentence to be imposed in this case, I bear in mind that the fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to protect society, contribute to respect for the law, and promote a just, peaceful, and safe society by imposing just sanctions. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which include denunciation, deterrence, separation from society where necessary, rehabilitation and promotion of responsibility in the offender, and acknowledgement of the harm done to the victims and society.
[38] Gun-related crime poses great danger to Canadians. The mere possession of a loaded firearm is inherently dangerous. When such weapons are allowed in the community, death and serious injury are literally at hand, only an impulse and trigger-pull away: see R. v. Chin, 2009 ABCA 226, at para. 10. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others, and to impose severe penalties for violations of these laws: see R. v. Nur, 2015 SCC 15, at para. 1. As Doherty J.A. noted in the Court of Appeal judgment in R. v. Nur, 2013 ONCA 677, at paras. 51-52, the vast majority of charges for unlawful possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, arise in situations where possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons. The vast majority of s. 95 offenders will be engaged in conduct that would be classified as dangerous and criminal.
[39] As a result, denunciation and general deterrence are the paramount purposes of sentence for most offences of possession of a loaded firearm under s. 95. As Doherty J.A. put it in Nur, at para. 206, individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others, should receive exemplary sentences that will emphasize deterrence and denunciation. That is particularly so where the loaded firearm is being used as a tool of the drug trade. Mitigating factors and rehabilitation are usually secondary in such cases.
[40] As a result, in this case I must emphasize denunciation, general deterrence, and separation. I bear in mind, however, that given the age of the offender and the difficulties he has faced in life, I should not discount the prospect that he will change his ways and develop a sense of responsibility for his actions despite his criminal record, and should give some effect to the principle of rehabilitation.
[41] I must also take into consideration the sentencing principles found in s. 718.1 and s. 718.2 of the Criminal Code.
[42] Section 718.1 of the Criminal Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. As I have made clear, this offence is a serious one for which the offender is solely responsible. The offender was in possession of a loaded firearm for criminal purposes and recklessly threw it out an 11^th^-floor apartment window with a round of ammunition in the chamber, ready to fire, to avoid detection, thereby putting the safety of others at risk.
[43] Section 718.2(a) requires me to take into consideration aggravating and mitigating circumstances. Among the aggravating circumstances here is that the offender is a recidivist gun offender. This is his second conviction for possession of a semi-automatic firearm in conjunction with drug trafficking. I also take into account the other serious entries in his criminal record and the fact that this offence was committed while he was on bail, on probation, and subject to a mandatory weapons prohibition order. In R. v. J.G., [2005] O.J. No. 4599 (S.C.), at para. 37, Nordheimer J., as he then was, stated:
It should go without saying that the possession by any person of a loaded handgun would, of itself, be of very serious concern. However, the possession of a handgun by a person who is not only subject to multiple court orders against the possession of guns, but who is, at the same time, out in the community on a release that prohibits the possession of guns, would inevitably outrage even the most hardened or cynical members of this community.
[44] I caution myself not to double count these breaches when determining the length of sentence I impose on count two, since they form the subject matter of separate offences. But they do bear on the overall sentence that is appropriate for these offences. I also take them into consideration specifically in relation to count two, to the extent that they undermine the argument made by counsel for the offender that he should be treated leniently.
[45] With respect to mitigating circumstances, I see few, other than the offender’s age and difficult circumstances growing up. While his asserted desire to change his ways is a positive sign, it is unproven and does not merit serious consideration at present.
[46] This brings me to consideration of the appropriate range of sentence. In R. v. Graham, 2018 ONSC 6817, Code J. provided a most helpful review of the guidance provided by the case law as to the appropriate range of sentence in s. 95 cases, which I adopt. He stated, at paras. 38-40, that three years to five years is the appropriate range for a first s. 95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In the case of s. 95 recidivists who also breach s. 109 orders, an appropriate total range of six to ten years is appropriate. I see no need to review again the cases considered by Code J. in reaching these determinations.
[47] The offender is a s. 95 recidivist who also breached a s. 109 order, and as a result he presumptively falls within the six to ten-year range. That he was in possession of a loaded prohibited firearm while on bail and subject to probation orders, was in breach of each of them, and discarded the firearm in a reckless and dangerous manner to avoid detection convinces me that he is not a candidate for a sentence below the range, or even at the minimum end of the range. I am equally convinced that in light of his age and difficult background, and his asserted – albeit unproven – commitment to change, I should not impose a sentence at the high end of the range that would be crushing to him. Having regard to the principles of sentence that I have reviewed, the aggravating and mitigating circumstances, and the appropriate range of sentence adopted by the courts in Ontario, I am of the view that the seven-year total sentence sought by Crown counsel is appropriate.
[48] I am mindful of the fact that sentences for breaching a prohibition order, a recognizance, or a probation order should ordinarily be served consecutively to a s. 95 offence even where the breach relates to the possession of the same firearm that was the subject matter of the s. 95 offence. The principle that such offences should be served consecutively is intended to ensure that disregard of firearm prohibition orders, bail orders, and probation orders imposed in the interest of public safety do not go unpunished. This principle also recognizes the fact that the breach of a prohibition order is different behaviour than the associated offences, engaging different social interests: see R. v. Claros, 2019 ONCA 626, at para. 51. Accordingly, the sentences I impose on counts three to seven will be consecutive to the sentence I impose on count two.
[49] I also recognize that there is good reason to order that the sentences imposed for at least each category of breach in this case – prohibition order, recognizance, probation order – be served consecutively. As the court stated in Claros, at para. 52:
Similarly, two or more separate violations of prohibition orders generally require their own distinct sentences, unless there is cogent reason to do otherwise given the principles and objectives of sentencing. As I have said, there is no bulk discount.
[50] Here, there is cogent reason to do otherwise. If I made all of the sentences for breaches consecutive, I would be ignoring the principle of totality. It is sufficient, in my view, to make the breach sentences concurrent to each other, but consecutive to the s. 95 offence. This adequately ensures that the offender’s disregard of the firearm prohibition order, bail order, and probation orders do not go unpunished.
DISPOSITION
[51] For these reasons, I impose a total sentence of seven years, allocated as follows:
Count 2: imprisonment for 6 years consecutive to time being served
Count 3: imprisonment for 1 year consecutive to count 2
Count 4: imprisonment for 1 year consecutive to count 2 but concurrent to count 3
Count 4: imprisonment for 1 year consecutive to count 2 but concurrent to count 3
Count 5: imprisonment for 1 year consecutive to count 2 but concurrent to count 3
Count 6: imprisonment for 1 year consecutive to count 2 but concurrent to count 3
Count 7: imprisonment for 1 year consecutive to count 2 but concurrent to count 3
[52] I will hear further submissions on the imposition of any ancillary orders on the date I impose sentence.
M. Dambrot J.
Released: June 30, 2021
COURT FILE NO.: CR-20-50000-032
DATE: 20210630
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
REASONS FOR SENTENCE
DAMBROT J.
RELEASED: June 30, 2021