COURT FILE NO.: 15452/20
DATE: 20210924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARCUS CHARLES
Defendant
Daniella Portolese for the Crown
Monte MacGregor for Mr. Charles
HEARD: Sentencing Submissions August 11, 2021
reasons for sentence
c. boswell j.
Overview of the Offences
[1] Mr. Charles was in the business of selling illicit street drugs. By chance he encountered a delinquent customer at an apartment complex in Oshawa. A discussion ensued about the debt owed to Mr. Charles. In the course of that discussion Mr. Charles shot the debtor in the leg, shattering his femur. Mr. Charles immediately departed the scene.
[2] Several weeks later the police located and arrested Mr. Charles in his automobile. A search of the vehicle yielded a loaded, 9 mm handgun, 16.3 grams of purple fentanyl, 7 grams of blue fentanyl, 20.8 grams of cocaine, 29 oxycocet pills, digital scales and $1,500 in cash.
[3] Mr. Charles was charged with 19 criminal offences including one count of aggravated assault, 15 counts covering various firearms offences, two drug possession counts and one count of possession of fentanyl for the purpose of trafficking.
[4] On May 20, 2021 Mr. Charles entered guilty pleas before me in connection with the following counts:
Count 1 - Aggravated assault, contrary to s. 268(2) of the Criminal Code;
Count 2 - Discharging a firearm with intent to endanger life, contrary to s. 244(1) of the Code;
Count 9 - Breach of a s. 109 weapons prohibition, contrary to s. 117.01(1) of the Code;
Count 13 - Unauthorized possession of a restricted firearm in a motor vehicle, contrary to s. 94(1) of the Code;
Count 16 - Possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act; and,
Count 17 - Unauthorized possession of a loaded, restricted firearm, contrary to s. 95(1) of the Code.
[5] Mr. Charles was remanded so that a pre-sentence report could be completed. Submissions on sentence were eventually made on August 11, 2021.
Mr. Charles’ Circumstances
[6] The pre-sentence report provided a reasonably thorough and sympathetic account of Mr. Charles’ life circumstances. He was born in Toronto in June 1994 and accordingly was 25 years old at the time of the index offences, which occurred in September and October 2019. He has a sister, one year older than him, and two half-brothers, one eight years older and the other thirteen years his senior.
[7] Mr. Charles’ parents separated when he was five years old. His father and eldest brother moved out of the family home. His father was only sporadically involved in his life after the separation.
[8] Mr. Charles began to display outbursts of extreme anger following the separation. He was diagnosed with Oppositional Defiance Disorder. He fought at school with other students and teachers. He was moved into special education courses early on in his education career. He landed in a group home for the first time at age 9. Other than one brief period prior to his 12th birthday, he remained living in group homes throughout his youth and eventually became a ward of the state.
[9] Mr. Charles did not fare well in the group home setting. He ran away frequently and lived on the streets at times. He fell in with members of the community involved in criminal lifestyles. His own troubling history with the criminal justice system began at about age 15 when he was arrested for, and subsequently convicted of, robbery. A custodial sentence was imposed and served in a youth facility.
[10] When released from the youth facility, Mr. Charles returned to live with his mother and eventually moved into his own apartment at age 17. Unfortunately, his run-ins with the law persisted, seemingly unrelentingly. His criminal antecedents include:
February 19, 2010 - Break and Enter and Fail to Comply with a Youth Disposition, for which he received 12 months probation;
February 18, 2011 - Fail to Comply with a Recognizance, for which he was sentenced to one day in custody and one day of community supervision, in addition to five days of pre-sentence custody;
May 5, 2011 - Two Counts each of Robbery and Use of an Imitation Firearm, for which he was sentenced to 60 days in custody and 30 days of community supervision on top of 315 days of pre-sentence custody, together with 18 months probation;
May 26, 2011 - Assaulting a peace officer, for which he was sentenced to 14 days in custody plus 7 days under supervision in the community;
July 3, 2013 - Assaulting a peace officer, for which he was sentenced to 1 day in custody on top of 45 days of pre-sentence custody;
April 7, 2014 - Failure to comply with a youth sentence, together with five firearms offences, in respect of which a sentence of two years probation was imposed, on top of 729 days of pre-sentence custody;
November 27, 2015 - Four firearms offences including possession of a loaded, prohibited or restricted firearm. A sentence of 2 years and 9 months was imposed, on top of 432 days of pre-sentence custody.
October 6, 2016 - Carrying a concealed weapon, for which a sentence of 55 days was imposed; and,
October 12, 2017 - Possession of a weapon, for which a sentence of 60 days was imposed.
[11] Mr. Charles was arrested on the index offences on October 15, 2019 and has been in custody since that date.
[12] It is immediately apparent that Mr. Charles has spent the overwhelming majority of the last decade in custody. For all intents and purposes, his entire adult life has been spent in custody, subject to brief periods in the community, during which further offences have been committed.
[13] The pre-sentence report demonstrates that Mr. Charles has achieved significant insight into his circumstances. He understands that his home was broken, that his mother did not have the means or the energy to care for him and his siblings and that he lacked a support network. He lacked a male role model and felt growing up that he was alone and that nobody cared enough about him to help. He was angry with his mother for a considerable period of time about the way his life has turned out. He has more recently come to appreciate that she did her best and that he must take responsibility for his own life and actions.
[14] Mr. Charles managed to earn a high school diploma while in custody. He hopes to be able to attend college and hopes to get into business or real estate as a career.
[15] He has no significant history of substance abuse, despite his obvious involvement in trafficking illicit and dangerous substances to others. His involvement in the drug trade was, he has said, strictly due to the need to earn an income. He has not been out of jail long enough during his adult life to learn a trade or otherwise accrue any meaningful history of employment.
[16] Mr. Charles takes responsibility for the index offences. He was quiet and co-operative during the PSR process and he works hard to remain positive about his future, despite his difficult past.
The Impact of the Offences
[17] The victim of the aggravated assault elected not to file a victim impact statement. Even so, the court is able to make a number of observations about the impact that the offences have had on the shooting victim and, more generally, the community at large.
[18] The victim required surgery to repair a shattered femur. I take judicial notice of the fact that such an injury would be extremely painful and would take many weeks, if not months to recover from.
[19] Just as significant is the impact on the community. The shooting took place in broad daylight in a housing complex where many families live in close proximity. Discharging a 9 mm handgun in a residential complex puts many people at risk. It undermines everyone’s sense of security and well-being. It makes people afraid to venture out of their homes and to enjoy the parks and other common areas around those homes. It makes parents fearful for their children and for one another. It generally reduces the quality of life for a great many people.
[20] No less problematic is the trafficking in opioids, particularly fentanyl. I take judicial notice of the opioid crisis in this and other provinces. Opioids are insidious drugs. They are highly addictive and destructive, none more so than fentanyl. These drugs ruin lives and they end lives. They are a scourge in our communities.
The Principles and Purposes of Sentencing
[21] The Criminal Code outlines the objectives of sentencing, which have long been recognized by the common law. They include the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[22] The importance of these individual objectives, and how they interact, varies from case to case. In this case, given the particular nature of the offences involved, the principle drivers of any sentence imposed are denunciation and deterrence – both specific and general. That said, I am alive to the difficult circumstances Mr. Charles has faced in his life as well as his efforts to better himself while in custody, his insight into his circumstances and his desire to have a better life. He is only just 27 years old. Rehabilitation, in my view, remains a very live concern.
[23] Identifying the principal objectives engaged in any given case is only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[24] Proportionality engages two concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. As LeBel J. observed, a sentence must promote justice for victims and enhance public confidence in the administration of justice. At the same time, it should not exceed what is appropriate in light of the moral blameworthiness of the offender.
[25] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and difference offences. Section 718(2)(b) of the Criminal Code specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[26] At the same time, it is important to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43.
[27] The sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.
The Legal Parameters
[28] The maximum sentences applicable to the index offences are set out in the Criminal Code and the Controlled Drugs and Substances Act.
[29] Section 268(2) of the Criminal Code provides for a maximum penalty of fourteen years imprisonment for aggravated assault.
[30] Section 244(2) of the Code provides for a maximum penalty of fourteen years imprisonment for discharging a firearm with intent, when a restricted or prohibited firearm is used in the commission of the offence. A minimum penalty of five years is provided for in the case of a first offence under this section.
[31] Section 117.01(3)(a) of the Code provides for a maximum penalty of ten years imprisonment for breaching a s. 109 weapons prohibition.
[32] Section 91(3) of the Code provides for a maximum penalty of ten years imprisonment for unauthorized possession of a restricted or prohibited firearm in a motor vehicle.
[33] Section 5(3)(a) of the Controlled Drugs and Substances Act provides for a maximum penalty of life imprisonment for possessing fentanyl for the purpose of trafficking. Section 5(3)(a)(i)(C) provides for a minimum penalty of one year if the person carried, used or threatened to use a weapon in committing the offence.
[34] Section 95(2) of the Code provides for a maximum penalty of ten years imprisonment for possessing a loaded restricted firearm and a minimum penalty of five years in the case of a second or subsequent conviction under s. 95(1). While this mandatory minimum continues to appear in the published version of the Criminal Code, it was struck down by the Supreme Court as unconstitutional in 2015 in the case of R. v. Nur, as above.
The Parties’ Positions
[35] The Crown urges the court to impose a global sentence of 8 years imprisonment, less credit for pre-sentence custody. In addition, the Crown seeks a number of ancillary orders, including: a s. 109 weapons prohibition for life; a DNA order; forfeiture of the gun, drugs and money seized on arrest; and an order restraining Mr. Charles from having any communication with Charlie Dale (the shooting victim), his girlfriend Jennifer Armstrong and Darryl Heather (a former co-accused).
[36] The Crown contends that the appropriate sentencing range for discharging a firearm with intent is 7 to 11 years. The appropriate range for possession of fentanyl for the purpose of trafficking is, in the Crown’s submission, 6 to 7 years, which should be imposed consecutive to the firearms offence. Moreover, the sentence for the s. 109 breach should also be served consecutive to any other sentence imposed. I will elaborate on the particulars of the Crown’s position as I review each individual offence below. Although the sentences urged upon the court by the Crown add up to roughly 15 years, the Crown’s submission is that a global sentence of 8 years is appropriate when the totality principle is accounted for.
[37] The Crown submits that Mr. Charles had 665 days of pre-sentence custody as of August 11, 2021. As of today that number is 709. The Crown concedes that a credit should be applied to that time in accordance with a 1.5:1 ratio, for a total credit of 1,064 days.
[38] The defence position is that, in all the circumstances of the case, an appropriate global sentence is in the range of 5-6 years, less pre-sentence custody. There are many factors that work to mitigate any sentence to be imposed, including Mr. Charles’ background, his guilty plea and the conditions of his pre-sentence custody.
[39] Mr. Charles testified about the difficult conditions he has experienced during his time in remand at the Central East Correctional Centre. He spoke of extensive lockdowns both before and after the commencement of the pandemic. His counsel asks the court to apply a reasonable credit in accordance with the principles enunciated by the Court of Appeal in R. v. Duncan, 2016 ONCA 754 and, more recently, in R. v. Marshall, 2021 ONCA 344.
[40] The defence did not make submissions opposed to the ancillary orders sought.
Discussion
[41] Chief Justice Wagner observed in R. v. Lacasse, 2015 SCC 64 that “sentencing remains one of the most delicate stages of the criminal justice process in Canada”. It is hard to disagree, particularly in circumstances similar to the ones present here.
[42] Mr. Charles presents as a person with a very concerning history of criminality. He has prior convictions for violent offences and, of acute concern, multiple convictions on multiple occasions for firearms offences. The offences he has accepted responsibility for on this occasion are arguably his most serious. Shooting another person over a drug debt and trafficking in fentanyl are two of the more serious offences one can commit.
[43] At the same time, Mr. Charles presents as a sympathetic figure in the pre-sentence report, for reasons that are entirely understandable. By all appearances, he has not had a lucky break in his life. He has lacked support and positive influences at every critical juncture of his life. He appears to have insight into his life and he accepts responsibility for his actions. He knows he has to do better and he wants to do better. He has earned himself a high school diploma and he wants to further his education.
[44] The sentence sought by the Crown is easily justifiable in view of the prevailing jurisprudence and the circumstances of this case. It would be easy to conclude, based on Mr. Charles’ history, that he is a lost cause – a “rounder” in effect – fated to spend the bulk of his adult life in custody. But I do not get that sense from Mr. Charles. I believe he is capable of turning his life around. He is bright and articulate and capable of overcoming the hurdles that life has put in front of him.
[45] The nature and circumstances of the offences call for the imposition of a significant penitentiary sentence. There is no escaping that. The really delicate aspect of the sentencing is to ensure that any sentence imposed will not be crushing, such that it converts a person I consider capable of turning his life around into a person without hope that a better life is achievable.
[46] With those general comments in mind, I will take a moment to reflect on the aggravating and mitigating circumstances present here and then I will consider the appropriate sentence to impose for each of the offences Mr. Charles has been convicted of.
[47] I begin with the aggravating circumstances.
Aggravating Circumstances
[48] I have already adverted to the most serious of the aggravating circumstances present here. In my view, the following are aggravating features of the offences:
(a) Mr. Charles shot a man in the course of attempting to enforce a drug debt. In other words, it was part of his business model;
(b) The shooting took place in a dense residential complex at 4:00 p.m. on a September Tuesday;
(c) Mr. Charles has a lengthy criminal record, including numerous other convictions for firearms offences;
(d) Mr. Charles was subject to a s. 109 weapons prohibition at the time of the shooting and at the time of his arrest, when he was found in possession of a loaded, 9 mm handgun; and,
(e) Mr. Charles was trafficking in some of the most dangerous drugs available on the streets of our community and he was in possession of significant amounts of those drugs on his arrest.
Mitigating Circumstances
[49] I have similarly adverted to a number of mitigating circumstances already. They include:
(a) Mr. Charles accepts responsibility for his actions. He entered guilty pleas to a number of the most serious offences he was charged with, in order to resolve the case short of a trial. It was not by any means an early plea, but a trial has been avoided;
(b) Mr. Charles’ personal background has been difficult to say the least. He has a positive and sympathetic pre-sentence report; and,
(c) Mr. Charles has experienced particularly harsh conditions during his pre-sentence custody at the Central East Correctional Institution. Lockdowns at “CECC” – largely due to staff shortages – have been chronic for years. They result in a significant increase in time spent by inmates in their cells and reduced access to showers, telephones, common areas and the outdoor yard.
Mr. Charles testified that of his 667 days of pre-trial custody as of the date sentencing submissions were made, he has experienced 153 half-day lockdowns and 179 full-day lockdowns. According to him, COVID made things a lot worse. He experienced a one month stretch of continuous lockdowns. At times they went four or five days without access to a shower. Visits were non-existent (though to be fair his family had visited just once prior to COVID). It was also very difficult to get access to a phone, which was his principal means of staying in contact with his family.
[50] The Court of Appeal has made it clear that particularly difficult and punitive pre-sentence custodial conditions experienced by an offender may be taken into account as a mitigating factor on sentence. This factor is regularly referred to as a “Duncan credit”. See R. v. Duncan, as above.
[51] As Doherty J.A. recently explained in R. v. Marshall, as above, a Duncan credit is not actually a credit like the 1.5:1 credit to be given to offenders for time spent in pre-sentence custody. Instead, it is to be taken into account as a mitigating circumstance. Sentencing judges must be alive to the fact that the 1.5:1 Summers credit already accounts for the difficult and restrictive conditions that offenders regularly encounter in remand facilities while awaiting their trials. See R. v. Summers, 2014 SCC 26. Additional mitigation is only to be accounted for where there are exceptionally punitive conditions that go well above and beyond what would normally be the case.
[52] Sentencing courts are required to fix an appropriate sentence having regard to all of the aggravating and mitigating circumstances. A Duncan credit is but one of a number of potential mitigating circumstances that may be present in a given case. That being so, it cannot serve to reduce a sentence below what is appropriate in all the circumstances.
[53] Mr. Charles had, by my calculation, 667 days of pre-sentence custody to the date that sentencing submissions were made; 2 days more than the Crown’s calcluation. To today’s date, that number is 711. He is entitled to credit for that time at a ratio of 1.5:1 in accordance with the principles in Summers. The total credit is 1067 days, or 35.6 months.
[54] I will turn now to an examination of the appropriate sentence to be imposed on each count, having regard to any applicable established sentencing ranges as well as the aggravating and mitigating circumstances here. The one caveat I would add is that I will save my consideration of any mitigating impact of the Duncan principles until the end.
[55] I note, before moving on, that sentencing ranges are not to be viewed as fixed or inflexible: see R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.). They must play a servient role in the individualized sentencing process: see R. v. Nasogaluak, 2010 SCC 6, at para. 43.
[56] I will begin with Count One: Aggravated Assault.
Count One: Aggravated Assault
[57] In R. v. Tourville, 2011 ONSC 1677 (S.C.J.) Code, J. described sentencing ranges for aggravated assault as falling into three general tiers. At the low end are cases with exceptionally mitigating circumstances, where modest punishments are typically imposed. Mid-range cases, frequently involving consensual fights where excessive force is used, typically result in sentences in the upper reformatory range, roughly 18 months to 2 years less a day. At the high end are cases involving seriously aggravating circumstances, such as extreme violence, premeditation, an absence of provocation and/or have been committed by a violent recidivist. Upper end cases tend to attract more significant penitentiary sentences, in the 4 to 6 year range.
[58] In my view, the aggravating circumstances of this case point to a sentence towards the upper end of the range. Extreme violence was used – the victim was shot in the leg. Mr. Charles is an offender with a lengthy criminal record which includes numerous prior firearms offences. An outstanding drug debt does not count as provocation, hence I would conclude that the attack was unprovoked. That said, I am satisfied that it was not premediated and was the result of a chance encounter. Having regard to the mitigating circumstances described earlier, not including any mitigation for particularly onerous pre-sentence custody, I would impose a sentence of 5 years on count 1.
Count Two: Discharge of a Firearm with Intent to Endanger Life
[59] Crown counsel identified the usual range for discharging a firearm with intent to endanger life as seven to eleven years, relying on R. v. Bellissimo, 2009 ONCA 49. In Bellissimo, the offender fired several shots in a restaurant. One person was significantly injured and another suffered a minor injury. A third person narrowly escaped being killed. The trial judge imposed a sentence of 8 ½ years. The Court of Appeal described the range for serious, gun-related offences like this, as between 7 and 11 years. They allowed a Crown appeal as to sentence and imposed a sentence of 10 years, noting the seriousness of the offence and the absence of any mitigating factors.
[60] The circumstances in Bellissimo were more egregious than those here. There are also mitigating circumstances here that, in my view, tend to nudge the case towards the lower end of the range. Still, Mr. Charles shot a man in the leg at close range, in a dense residential complex. And he has multiple prior convictions for gun-related offences. A sharp sentence is called for – one that recognizes both the repeated nature of Mr. Charles’ offending and the escalation of its seriousness. In the circumstances, I would impose a sentence of 8 years on count 2, concurrent to the sentence imposed on count 1.
Count 9: Breach of a s. 109 weapons prohibition
[61] Mr. Charles has at least one prior conviction for breaching a s. 109 weapons prohibition and, as I have noted, multiple other prior convictions for firearms-related offences. In my view, a sentence of 1 year is appropriate on count 9.
[62] Crown counsel urges the court to impose this sentence consecutive to the sentences imposed on counts 1 and 2. For reasons that will become clear in a moment, imposing this sentence consecutive to those on counts 1 and 2 would be inconsequential. In the result, it is imposed concurrent to the sentences imposed on counts 1 and 2.
Count 13: Unauthorized possession of a restricted firearm in a motor vehicle
[63] Mr. Charles has a number of prior convictions for possessing prohibited or restricted firearms. His most recent was in 2015. At that time he was sentenced to 2 years and 9 months on top of 432 days credit for pre-sentence custody for an effective sentence of just under 4 years. Having regard to the step-up (or jump) principle I would impose a sentence of 5 years on count 13.
[64] This offence, along with those reflected at counts 16 and 17, occurred on a separate date from the offences reflected at counts 1, 2 and 9. They are arguably not part of the same transaction as the earlier offences.
[65] Crown counsel asked that any sentences imposed on counts 13, 16 and 17 be marked consecutive to any sentences imposed on the other counts. No substantive arguments were made by either counsel, however, about whether consecutive sentences would be appropriate in the circumstances.
[66] One could reasonably argue, in my view, that the offences occurring on the earlier date – September 24, 2019 – and those subsequently occurring on the date of Mr. Charles’ arrest – October 15, 2019 – are in fact all linked to Mr. Charles drug-dealing activities and, as such, ought to be imposed concurrently. At any rate, whether sentences are imposed concurrently or consecutively is a matter of judicial discretion. See R. v. McFarlane, [2012] O.J. No. 6566 (S.C.J.). Given that the Crown seeks a global sentence of 8 years and that I intend to impose a sentence of 8 years on count 2, there is little practical value in imposing consecutive sentences on any of counts 13, 16, or 17. The Crown indeed submitted that any such consecutive sentences would have to be pared back to 8 years on account of the totality principle. In the result, I impose the 5 year sentence on count 13 concurrent to all other sentences imposed today.
Count 16: Possession of fentanyl for the purpose of trafficking,
[67] Sentences for possession of fentanyl for the purpose of trafficking are typically significant, given the particularly dangerous nature of fentanyl. Mr. Charles was found to be in possession of 23.3 grams of fentanyl in total at the time of his arrest.
[68] The establishment of an appropriate sentencing range for this offence is still a work in progress. See R. v. Loor, 2017 ONCA 696, where Laskin J.A. declined to fix a range given the paucity of fentanyl cases that had yet to reach the Court of Appeal. He nevertheless held that offenders who traffic in significant amounts of fentanyl can expect to receive significant penitentiary sentences. A 6 year sentence was upheld for Mr. Loor, who had trafficked in 45 fentanyl patches.
[69] In R. v. Lloyd, 2019 BCCA 128, the British Columbia Court of Appeal similarly upheld a 6 year sentence for an offender found in possession of almost 52 grams of heroin mixed with fentanyl.
[70] In R. v. Disher, 2020 ONCA 710, our Court of Appeal reduced a sentence imposed on Mr. Disher for trafficking in adulterated heroin that contained fentanyl and carfentanil from 12 to 8 years. The amount of substance involved was 42.6 grams. Mr. Disher had a serious and related criminal record. In reducing Mr. Disher’s sentence, Gillese J.A. held that the trial judge had failed to give sufficient weight to Mr. Disher’s rehabilitative potential.
[71] Gillese J.A. went on to observe that caution is warranted in considering prior case law, not only because of the developing nature of the law, but also because of the difficulties in comparing quantities of fentanyl given the differences between patches, pills and powder. She concluded that a sentence of 8 years was consistent with that received by other offenders similarly situated to Mr. Disher.
[72] Mr. Charles has a dense criminal record, but from what I can tell, he has no prior convictions for trafficking or for possession for the purpose of trafficking. Moreover, he possessed roughly half of the amount of substance possessed by Mr. Disher.
[73] In my view, an appropriate sentence on count 16 is 7 years, concurrent.
Count 17: Unauthorized possession of a loaded, restricted firearm
[74] Consistent with the sentence imposed on count 13, I would impose a sentence on count 17 of 5 years, concurrent.
Summary
[75] In summary, I would impose the following sentences, all concurrent:
Count 1: 5 years
Count 2: 8 years
Count 9: 1 year
Count 13: 5 years
Count 16: 7 years
Count 17: 5 years
[76] Mr. Charles’ longest sentence prior to today was for 4 years in the penitentiary, imposed on November 27, 2014 for firearms-related offences. The sentences imposed today will represent a significant step up from prior sentences imposed on Mr. Charles. This significant jump is warranted, in my view, given that the index offences represent not only a continuation of the serious criminality Mr. Charles has been engaged in historically, but also an escalation in seriousness. They call for a sharp denunciation.
[77] The sentence requested by the Crown is entirely reasonable and likely at or very near the low end of what is appropriate in all the circumstances. I have a strong urge to want to help Mr. Charles for the reasons I have set out above. But the 5 to 6 year sentence urged upon the court by his counsel would simply not adequately reflect the seriousness of the offences, their aggravating circumstances and the fact that they are, as I said, an escalation of Mr. Charles’ criminal antecedents.
[78] I have yet to take into account the mitigating effect of the application of the principles in Duncan.
[79] I find that Mr. Charles has established that the time he has spent in pre-sentence custody has been exceptionally difficult. Lockdowns have been a constant presence in his time in remand. They have resulted from staffing issues and been significantly exacerbated by the impact of the pandemic. Pandemic-related restrictions are going to stay with Mr. Charles for some time I expect.
[80] Sentences are punitive – they impose punishment in the form of suffering upon an offender. Suffering is measured in large part by the length of the sentence. But it is appropriate to consider, as well, the harshness of the conditions under which the sentence is served. Particularly punitive conditions associated with pre-sentence custody can be taken into account as a mitigating factor. So too can particularly punitive conditions associated with the custodial terms going forward. See R. v. Suter, 2018 SCC 34, at para. 48 and R. v. Hearns, 2020 ONSC 2365, at para. 16.
[81] All things considered, I am going to impose a global sentence of 7 ½ years, or the equivalent of 90 months, subject to credit for time served. That credit amounts to 35.6 months, leaving a net of 54.4 months, or the equivalent of 4 years, 6 months and 12 days.
[82] The following ancillary orders will be imposed:
(a) A DNA order on Count 1;
(b) A s. 109 weapons prohibition for life;
(c) An order for forfeiture of the gun, drugs and money seized on arrest; and
(d) An order pursuant to s. 743.21(1) of the Criminal Code restraining Mr. Charles from having any direct or indirect communication with Charlie Dale, Jennifer Armstrong and Darryl Heather during the custodial term of his sentence.
[83] If it was not otherwise clear, the balance of the charged offences, beyond those Mr. Charles entered a guilty plea to, are withdrawn by the Crown.
C. Boswell J.
Released: September 24, 2021