COURT FILE NO.: CR-20-10000430-0000
DATE: 20211012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY BALDWIN
Ana Serban, for the Crown
Dragi Zekavica, for Mr. Baldwin
HEARD: September 16, 2021
R. MAXWELL J.
REASONS FOR SENTENCE
[1] Mr. Baldwin entered guilty pleas before me on September 16, 2021 for the following offences:
Two counts of unlawful possession of a loaded, prohibited firearm contrary to s. 95(1)(a) of the Criminal Code, R.S.C, 1985, c. C-46 (the “Code”);
Two counts of possession of a prohibited firearm knowing he was not the holder of a licence, contrary to s. 92(1) of the Code.
[2] Mr. Baldwin appears before me today for sentencing.
The Admitted Facts
[3] The parties filed an agreed statement of facts which was marked as an exhibit on the sentencing hearing. The facts will be briefly summarized here.
[4] On May 19, 2020, officers from 11 Division Major Crime Unit were granted a search warrant for the “upper unit” of 1927 Davenport Road in Toronto. Based on confidential source information, police had reasonable grounds to believe that Mr. Baldwin resided at this address and was in possession of a firearm.
[5] 1927 Davenport Road is a two-story building with commercial space at street level and residential units on the upper level. Mr. Baldwin resided in unit four.
[6] Police executed the search warrant and located Mr. Baldwin, his common-law spouse, Megan Masse, and their three-year old daughter inside the unit. Police searched the unit and located a backpack on the floor of a short hallway at the entrance of the unit. In the backpack, police located two firearms.
[7] The first firearm was a semi-automatic AR-15 assault rifle (the “AR-15”) with a round of .223 caliber ammunition in the chamber and a further 19 rounds of .223 caliber ammunition within the magazine. At the time it was seized, the AR-15 was not operable because it was missing its firing pin.
[8] Detective Constable McLane from the Firearms Investigation and Analysis Unit analyzed the firearm and rendered it operational by replacing the firing pin. There was no serial number on the AR-15; therefore the firearm could not be connected to any licence or registration certificates. The AR-15 was determined to be a “prohibited firearm” under s. 84 of the Code. The magazine could hold 30 rounds of .223 caliber ammunition and was therefore determined to be a “prohibited device” per s. 84 of the Code as an over-capacity magazine.
[9] The second firearm was a sawed-off Cooey Model 60 .22 caliber rifle (the “Cooey rifle”). Police located three rounds of .22 caliber ammunition in the magazine. The Cooey rifle was determined to be a “prohibited firearm” under s. 84 of the Code. The barrel was sawed off. It was operational. It functioned as a bolt action rifle. There was no serial number on the Cooey rifle, therefore it could not be connected to any licence or registration certificates.
[10] At the time of his arrest, Mr. Baldwin did not possess any licences or registration certificates in relation to any firearm.
[11] Inside the backpack, police located a Government of Canada pay stub issued to Mr. Baldwin with an address of #4 – 1927 Davenport Road and a syringe.
[12] Police also located a cell phone which contained photos of various firearms, including the firearms seized from the apartment, and of two handguns. In one photo, Mr. Baldwin is holding what appears to be the AR-15. In another, he is holding a handgun. No handguns were located during the execution of the search warrant.
[13] Mr. Baldwin was arrested and charged accordingly.
Position of the Parties
[14] On behalf of the Crown, Ms. Serban submits that a fit sentence in this case is five years in custody less credit for pre-sentence custody. She also seeks a DNA order, a s. 109 order for life, a forfeiture order, and an order under s. 743.21 of the Code that Mr. Baldwin have no communication with Ms. Masse while in custody.
[15] On behalf of Mr. Baldwin, Mr. Zekavica submits that once credited for pre-sentence custody on an enhanced basis to account for harsh pre-sentence custody conditions, Mr. Baldwin is in the position of a “time served” sentence. As of today’s date, Mr. Baldwin has served 512 days in pre-sentence custody. Mr. Zekavica argues that Mr. Baldwin should receive the following credit for time spent in pre-sentence custody:
Credit in accordance with R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575; 512 actual days credited at 1.5:1 for a total of 768 days;
Credit in accordance with the principles of R. v. Duncan, 2016 ONCA 754, of 1.5 days for every day of lockdown, or 124 days of lockdown (between May 19, 2020 and October 12, 2021[^1]) credited at 310 days; and
Credit of .5 days for every day served during the COVID-19 pandemic; 512 days credited at 256 days.
[16] This proposed credit totals 1334 days. He submits that the passing of sentence should be suspended and Mr. Baldwin be placed on probation. He argues that if any further time in custody is imposed, it should be served as a conditional sentence, given the ongoing harsh conditions at the jail as a result of the pandemic. He takes no position regarding the requested DNA order, s. 109 order, and forfeiture order, but opposes the imposition of a non-communication order with Ms. Masse.
Principles of Sentencing
[17] I begin with the most fundamental principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Code.
[18] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.
[19] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender.
[20] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[21] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[22] I begin with the gravity of the offences. Mr. Baldwin kept the firearms in an unsecure manner in an apartment with a three-year old child. In my view, the decision to keep the firearms in an unsecured backpack on the floor of the hallway created a significant risk to the occupants of the unit, particularly the child.
[23] Mr. Zekavica argues that there was no actual risk that Ms. Masse’s daughter could have been harmed by the firearms because the backpack was left in a hallway which was closed off from the apartment by a locked door. I do not accept this argument. On consent, the Crown filed photographs of the area where the backpack was located. The photographs show that the main door of the unit opens into this hallway. Therefore, anyone entering the unit would have had to pass through this hallway to get to the second door which opens into the apartment. Moreover, the unit’s washroom is accessed from this hallway. Anyone inside the unit would need to open the door that separates the unit from this hallway in order to access the washroom. Given that the hallway provided the only access point to enter the unit and the washroom, the idea that the interior door would never be left unlocked or ajar is untenable.
[24] In addition to the risk presented to Ms. Masse and her child, the unsecure storage of the firearms created a significant public safety concern. By Mr. Baldwin’s own admission, many break-ins occurred at 1927 Davenport Road. He personally experienced break-ins into his unit. Leaving two firearms with ammunition in a backpack near the front entrance of the unit created a clear public safety concern.
[25] In assessing the gravity of the offence, the condition of the firearms is also a relevant consideration. The two firearms were prohibited. The serial numbers on both firearms had been defaced. The Crown accepts that one of the firearms, the loaded AR-15, was inoperable at the time of seizure due to a missing firing pin. While this firearm could have been rendered operable by replacing the firing pin, there is no evidence that it was ever in operable condition while in Mr. Baldwin’s possession. The other firearm however, was fully operable and was located with ammunition readily accessible. Therefore, even if one of the firearms did not work, the overall circumstances are nevertheless, serious.
[26] Finally, there is no evidence that Mr. Baldwin used the firearm in any way, other than the evidence that he posed in “selfie” photographs with the AR-15 rifle (and two handguns which were not located). I am unable to conclude, as Ms. Serban urges, that the firearms were possessed in conjunction with controlled substances, which would increase the risks associated with possessing the firearms. A syringe was located in the backpack but no controlled substances. Ms. Serban argues Mr. Baldwin and Ms. Masse are drug users and the agreed statement of facts states that police observed drug paraphernalia and used syringes in the apartment. However, Mr. Baldwin disputes the claim that he personally uses controlled substances and there is no evidence linking Mr. Baldwin or the firearms to the drug trade.
[27] I conclude that while there are elements of the offence which diminish its seriousness, including the inoperability of one of the firearms and the absence of certain aggravating features which would increase the risk posed by the firearms, the overall circumstances are still very serious given the presence of the child in the apartment, that the firearms had ammunition readily accessible, and that they were stored in an open and unsecure place accessible to anyone who entered the apartment.
[28] Where the gravity of the offence is high, the importance of denunciation as well as general and specific deterrence in sentencing is necessarily high. Ms. Serban points to the caselaw which reinforces the importance of denunciation and deterrence in sentencing for firearm offences. In R. v. Hanse, 2019 ONSC 1640, Molloy J. imposed a sentence of four years less five months of pre-sentence custody for an offender who pleaded guilty to conspiracy to traffic in marijuana and was found guilty by a jury of attempting to possess a firearm and transferring or offering to transfer ammunition. In intercepted phone calls, the offender was heard discussing firearms and ammunition. He undertook to supply firearms and ammunition to others and attempted to obtain a firearm from two different people. The offender was 44 years old and had a criminal record for manslaughter and drug offences. In mitigation, he had a strong relationship with his family and good community supports and pled guilty to the conspiracy to traffic marijuana.
[29] In arriving at the sentence, Molloy J. emphasized, in paras. 25-26, that while the Supreme Court of Canada declared mandatory minimum sentences for possession of a loaded firearm to be unconstitutional in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, the court reaffirmed the seriousness of firearm offences and the need for exemplary sentences in appropriate cases. At para. 27, she cited several examples of cases, post-Nur, that have emphasized the plague represented by firearms in communities and the profound consequences firearms have on community safety, necessitating sentences that reflect the exceptionally serious nature of the offence of possession of a firearm: see also R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233; R. v. Delchev, 2014 ONCA 448, 323 O.A.C. 19; R. v. Dufour, 2015 ONCA 426, 326 C.C.C. (3d) 52.
[30] In addition to the gravity of the offence, the sentence I impose must consider the degree of responsibility of the offender, as this can assist in assessing the risk that the offender will re-offend.
[31] In considering Mr. Baldwin’s degree of responsibility, I consider Mr. Baldwin’s explanation for possessing the firearms. Mr. Baldwin maintains that he possessed the firearms for protection because the building lacked security and he lived under constant fear of break-ins. The area is plagued by violent crimes, including past break-ins into Mr. Baldwin’s home and the neighboring unit. His concerns grew when the pandemic hit. Mr. Baldwin now recognizes that this explanation provides no excuse for possessing firearms.
[32] Ms. Serban urges me not to accept this explanation as genuine, given that Mr. Baldwin possessed more than one firearm and took a casual “selfie” of himself holding at least one of the firearms, and other “selfies” holding two different handguns, which she argues, does not support an inference that Mr. Baldwin’s purpose in possessing the firearms was self-protection.
[33] I need not resolve whether Mr. Baldwin’s stated purpose was genuine because even if it is true, it does not present as a mitigating factor that substantially reduces his moral blameworthiness. I generally agree with the comments of Trotter J. (as he then was) in R. v. Powers, 2007 ONCJ 619, at paras. 24-25, and Nordheimer J. (as he then was) in R. v. J.G., [2005] O.J. No. 4599 (S.C.), at para. 35, that this justification does not mitigate the seriousness of the offence or the degree of responsibility. While I do not foreclose the possibility that extenuating circumstances can serve to diminish the moral blameworthiness of conduct, I do not find such circumstances to be present in this case. In his comments to the court, Mr. Baldwin stated that he took the firearms, which were offered to him by a friend and ex-marine, without considering the danger they presented or the possible consequences to himself and his family. By his account, his decision to take the firearms was made without thinking. The bag was left in the hallway without any real thought about the danger. In my view, these circumstances reflect extremely poor judgment and are not mitigating.
[34] That being said, I agree with Mr. Zekavica’s submission that Mr. Baldwin’s conduct lacks the element of “true criminality” which would raise both the seriousness of the offence and Mr. Baldwin’s degree or moral culpability. I accept that Mr. Baldwin had no intention to use the firearms in furtherance of an offence or for an unlawful purpose and that the firearms were, in fact, not used in any manner. While he bears responsibility for his conduct, it cannot be said that he is at the highest end of the scale for morally culpable behaviour.
[35] The circumstances of the offence and the degree of responsibility of the offender lead to a conclusion that the principles of denunciation as well as general and specific deterrence are the primary sentencing objectives in this case. While rehabilitation is a relevant consideration for all offenders (Mr. Baldwin’s background is reviewed in greater detail below), the principle of rehabilitation is of secondary importance, given the nature of the offences and the circumstances in which the offences were committed.
Circumstances of the Offender, Mr. Baldwin
[36] In submissions and through a document entitled “Character Profile” which was marked as an exhibit on the sentencing hearing, Mr. Zekavica outlined Mr. Baldwin’s background and personal circumstances.
[37] Mr. Baldwin was born in Woodstock, Ontario and excelled in school. He attended high school in Woodstock until grade 11, when his family moved to Ingersoll. He had trouble adjusting to a new school and community in Ingersoll and did not complete grade 12. He left school and began working in construction, specifically roofing and carpentry. He moved to Toronto in 2010 and continued working as a roofer.
[38] Mr. Baldwin is described as a hard worker who did well in his trade. Unfortunately, he suffered a significant fall from a roof in 2017, resulting in a serious back injury for which he was hospitalized. He was unable to return to working as a roofer as a result of this injury. He attempted to work in carpentry instead, but found he was unable to do so because he could not stand for long periods of time. In 2018, he began receiving Ontario Disability payments and remained on disability until his arrest on May 19, 2020.
[39] Mr. Baldwin has been in a common-law relationship with Megan Masse for 14 years. They have a three-year old daughter together. Ms. Masse was originally jointly charged with Mr. Baldwin for these offences. The charges against her have since been withdrawn at the request of the Crown. Ms. Masse describes her life with Mr. Baldwin as a happy family and that Mr. Baldwin is an excellent father. A letter of support from Diane Baldwin, Mr. Baldwin’s mother, similarly describes him as a very good father who spent all his time with his daughter before his incarceration.
[40] The “Character Profile” and the letter from Ms. Baldwin both detail Mr. Baldwin’s struggles with drugs and alcohol in his younger years. However, Mr. Baldwin sought treatment for addiction issues and is no longer addicted to drugs or alcohol.
[41] Mr. Baldwin has a criminal record which began in 2008 in Alberta and ended in 2014 in London, Ontario. The majority of the entries are for offences against the administration of justice. His record contains the following entries:
2008: theft, fail to appear, fail to attend court - $150 fine and 1 further day in custody;
2009: break & enter commit, mischief under $5000, impaired driving, fail to comply with an undertaking – on the break & enter and mischief: 18 days intermittent sentence (on top of 42 days of pre-sentence custody), on the impaired driving: $1200 fine and 1 year driving prohibition, on the fail to comply with undertaking: 1 year of probation;
2009: unlawfully at large – 15 days jail (on top of 2 days of pre-sentence custody);
2010: fail to comply with a probation order and fail to attend in court – 7 days intermittent sentence (on top of 13 days of pre-sentence custody);
2010: public mischief, fail to comply with a probation order, fail to appear in court – 30 days intermittent sentence (on top of 7 days of pre-sentence custody);
2010: unlawfully at large – 15 days jail (on top of 8 days of pre-sentence custody);
2014: unlawfully at large – 7 days jail (on top of 8 days of pre-sentence custody).
[42] Mr. Baldwin has no prior convictions for firearm offences.
[43] Ms. Baldwin’s letter refers to the fact that Mr. Baldwin suffers from anxiety, although no further information was provided as to his mental health diagnoses, or any past or ongoing efforts to treat his anxiety. It would appear that his struggles with anxiety were exacerbated during the COVID-19 pandemic. His concerns related to where he and Ms. Masse were living became acute.
Aggravating and Mitigating Factors
[44] There are several mitigating factors in this case. Importantly, Mr. Baldwin pled guilty to the offences, saving the time and resources of an anticipated Charter application and trial. It is common ground that there were triable issues in this case, particularly stemming from the anticipated challenge to the validity of the search warrant. Mr. Baldwin’s decision to plead guilty is a significant mitigating factor. I also accept his guilty plea as a genuine expression of his remorse.
[45] Second, although Mr. Baldwin has a criminal record, it is dated, does not include any prior firearm offences (or weapons offences), and there is a significant gap in his record after his release from jail in 2014 and up until his arrest on these charges.
[46] Third, Mr. Baldwin has good prospects for rehabilitation. He enjoys strong family support, as evidenced through the letters filed by his mother and common-law partner. I accept that he has been able to manage his addictions to alcohol and controlled substances for many years, having pursued treatment in his 20s, and that he has been able to maintain his sobriety for a significant part of his life. I also accept that, but for his injuries, Mr. Baldwin would be working in his chosen field of construction and that, while he was physically able to, he maintained gainful employment. In his comments to the court, Mr. Baldwin indicated a desire to resume working and had established possible avenues for employment upon his release from custody. He also expressed insight into the poor judgment he showed in possessing the firearms. Finally, I note that while the pandemic has largely curtailed programming in the jail, Mr. Baldwin earned certificates in several programs while incarcerated, including for programs in problem-solving, budgeting, and addiction. All of these factors, taken together, demonstrate that Mr. Baldwin is a strong candidate for rehabilitation.
[47] There are also aggravating factors.
[48] First, Mr. Baldwin was found to be in possession of more than one firearm. While the AR-15 was inoperable at the time it was seized, it could have been rendered operable by replacing the firing pin. The Cooey rifle was operable.
[49] Second, both firearms had the serial number defaced.
[50] Third, the firearms were stored in an unsafe manner. As discussed above, Mr. Baldwin possessed the firearms in an apartment with a three-year old child, putting the child and Ms. Masse at risk. Further, he created a public safety risk by keeping unsecured firearms in an apartment where he experienced break-ins and the threat of break-ins on a regular basis.
[51] Fourth, Mr. Baldwin had access to other firearms, as evidenced by the photos depicting Mr. Baldwin holding two handguns.
Sentencing Caselaw – Range of Sentence
[52] Both Ms. Serban and Mr. Zekavica provided me with cases in support of their respective sentencing ranges.
[53] In support of her position for the imposition of a global sentence of 5 years, Ms. Serban provided the decision of R. v. Jean, 2015 ONSC 9, aff’d 2016 ONCA 137. The offender was sentenced to 4 ½ years imprisonment less pre-trial custody, for possession of a loaded handgun. The handgun was stored in a shoebox under his spouse’s bed. There were 11 rounds in the magazine. The offender’s two young children and his spouse lived in the apartment and had access to the firearm. The court emphasized the significance of storing firearms in an area that could be accessed by children. One notable distinction in the Jean case is that the offender did not plead guilty and was sentenced after trial.
[54] In R. v. Browne, 2014 ONSC 4217, the offender was sentenced to 3 ½ years imprisonment less pre-sentence custody on a guilty plea to possession of a loaded handgun and breach of a s. 109 order. The firearm had 7 bullets in the magazine and was ready to fire. The handgun was wrapped in a hat, then a bag and was tucked behind an armoire. The court found as an aggravating factor that Mr. Browne’s elderly grandmother was put at risk and could have accessed the handgun. Mr. Browne had a criminal record for drug and violent offences.
[55] In R. v. Tyrell, 2013 ONSC 6555, the offender was sentenced to 38 months in custody less pre-sentence custody after a trial where he was found guilty of possession of a loaded handgun. The offender was in possession of the handgun with an overcapacity magazine. The handgun and magazine were stored inside a suitcase which was placed inside a cupboard. The offender’s partner and her two infant children were in the apartment. The firearm was stored in a room where the children slept. The offender had a short and dated criminal record and had the support of his family. Unlike in the case before me, the offender did not plead guilty.
[56] Ms. Serban argues that the presence of a particularly aggravating factor – that Mr. Baldwin possessed more than one firearm – makes a global sentence of 5 years appropriate.
[57] Mr. Zekavica accepts that sentencing in firearm offences, particularly for offences under s. 95 of the Code, will attract exemplary sentences, even for first time offenders and even for “less serious” versions of the crime: R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19. However, he argues that there is a spectrum of seriousness for firearm offences and that the sentence in this case should reflect the absence of significant aggravating factors, including that there is no evidence that the firearms were connected to any criminal offence, nor is there any evidence that the firearms were ever used. He also argues that the Crown’s cases involve possession of handguns which present a particular safety risk because handguns can be easily concealed, unlike the firearms in this case.
[58] Mr. Zekavica points to the decision of R. v. Dalton, 2018 ONSC 544, in which the court imposed a 12-month conditional sentence (on top of the equivalent of 15 months of pre-sentence custody) on a guilty plea to one count of possession of a loaded restricted firearm contrary to s. 95(1) of the Code. The court took into consideration the fact that the offender took possession of the firearm to protect his son who was being threatened by gangs, the firearm was not associated with drug trafficking or other criminality, and the offender had suffered significant personal consequences as a result of the conviction including the end of his marriage and loss of employment.
[59] Mr. Zekavica also provided the decision of R. v. Sprague, 2016 ONCJ 604, in which the court sentenced the offender to 2 years in custody, less pre-sentence custody, on a plea for possession of a loaded handgun found in his car during a stop. The offender was 34 years of age with addiction issues. He had a criminal record related mostly to driving.
[60] While all of the cases provide some parameters for an appropriate sentence in this case, each is quite distinguishable on its facts from the case at bar. First, this case does not involve handguns. Second, the cases presented involve possession of one firearm and not two. Third, none of the cases deal with the unique fact present in this case that one of the firearms was inoperable at the time of seizure.
[61] In my view, taking into consideration the circumstances of the offence and the offender, the relevant principles of sentencing, the mitigating factors (in particular Mr. Baldwin’s plea), and the aggravating factors (in particular that Mr. Baldwin possessed more than one firearm in circumstances that presented a danger to a child and to the public), the appropriate sentence in this case, before taking into account the conditions of pre-sentence custody, is 4 years imprisonment.
Collateral Consequences – the Impact of Lockdowns and COVID-19 on the Sentence
[62] The Ontario Court of Appeal’s decision in R. v. Duncan provides that, in appropriate circumstances, particularly harsh pre-sentence conditions can provide mitigation apart from and beyond the 1.5 credit set out for pre-trial custody credit in R. v. Summers. Both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused should be considered in assessing the significance of the lockdown as a mitigating factor on sentencing.
[63] The decision to award additional credit for harsh conditions of pre-sentence custody is discretionary. Credit for harsh conditions serves to ensure that the sentence is proportionate and individualized. There is no mathematical formula that must apply to determine the quantum of such credit: R. v. Brown, 2020 ONCA 196, at para. 13; R. v. Rajmoolie, 2020 ONCA 791, 155 O.R. (3d) 64, at paras. 14-16. Indeed, as the Court of Appeal for Ontario recently stated in R. v. Marshall, 2021 ONCA 344, at paras. 52 and 53:
The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed.
[64] The collateral consequences in this case must inform what the overall fit sentence is.
[65] The practice of continuous and frequent lockdowns on prisoners has been denounced in numerous cases. I agree with the position expressed by many judges, including Goldstein J. in R. v. Jama, 2018 ONSC 1252, at para. 20, that lockdowns arising from staff shortages, and even those arising from security reasons, should not be seen as “just the price to be paid” by those in custody. See also R. v. Innis, 2017 ONSC 2779; R. v. Persad, 2020 ONSC 188.
[66] I accept that Mr. Baldwin spent a significant portion of his pre-sentence custody in lockdown conditions which presented a hardship that must be taken into consideration in crafting a fit sentence.
[67] Moreover, the entirety of Mr. Baldwin’s pre-sentence custody has occurred during the COVID-19 pandemic. Since the outbreak of the COVID-19 pandemic, a number of courts have addressed how the extraordinary circumstances created by the pandemic should impact on sentencing an accused.
[68] In R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, Moldaver J. confirmed, at para. 47, that “collateral consequences” include, “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for the offence, that impacts the offender.”
[69] Applying the principle set out in Suter, the Court of Appeal for Ontario in R. v. Morgan, 2020 ONCA 279, at para. 9, held that the impact of COVID-19 can be viewed as a collateral consequence for sentencing purposes. Indeed, at para. 8, the court held that courts can take judicial notice of the fact that we are experiencing an unprecedented pandemic which, in general, has had a significant impact on all Canadians.
[70] In Marshall, at para. 50 the court specifically contemplated that the “very restrictive conditions” brought on by COVID-19 for those in custody are the kinds of circumstance that amount to “exceptionally punitive” conditions, warranting further consideration in assessing a Duncan credit. However, as reiterated in Suter, at para. 56, and Morgan, at para. 10, collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
[71] Mr. Baldwin provided telling details of the exceptional hardship of his pre-sentence custody. He experienced significant periods of lockdown while being held in custody at the Toronto South Detention Centre since May 19, 2020. Records from the Toronto South Detention Centre which were filed as an exhibit on the sentencing hearing reflect that, between May 19, 2020 and March of 2021, Mr. Baldwin was subject to either a partial or complete lockdown on 109 days. Subsequent documentation filed on the sentencing hearing reflect that Mr. Baldwin was subject to a further 15 days of lockdown at the Toronto East Detention Centre between September 28 and October 12, 2021 as a result of a COVID-19 outbreak, for a total of 124 days of lockdown.
[72] He has been subjected to at least five quarantine periods due to COVID-19 cases and/or outbreaks at the jail. During periods of quarantine, his movement was severely restricted, he was not permitted to have any visitors, and no programs were offered. While he noted that he has received double vaccination while he has been in custody, the risks of outbreaks at the institution and the threat of being subjected to further quarantines due to outbreaks weigh heavily on him.
[73] While in custody he suffered the loss of his two front teeth as a result of an incident. He has had other significant medical issues, including persistent blood in his stool and a shoulder injury. He was unable to access physiotherapy for his shoulder until three months ago and those services have since been terminated.
[74] In my view, Mr. Baldwin is entitled to significant consideration for the impact of the days of lockdown and the additional impact of COVID-19 on his pre-sentence custody. I must balance the need for a fit sentence that meets the relevant principles of sentencing with the personal circumstances of Mr. Baldwin and the hardships he has experienced as a result of lockdowns and the COVID-19 restrictions. In my view, it is appropriate to grant Mr. Baldwin a reduction in sentence, pursuant to the principles set out in Duncan, of 1 year.
[75] A global sentence below 3 years would not give effect to the principles of sentencing and would render the sentence unfit.
The Sentence in this Case
[76] The sentence I would impose before considering the exceptionally harsh circumstances would have been a global sentence of 4 years. I will deduct 1 year from the overall sentence for a global sentence of 3 years.
[77] Mr. Baldwin is entitled to 768 days of pre-sentence custody credit pursuant to Summers. This leaves Mr. Baldwin with a remaining sentence of 327 days to serve.
[78] I have considered Mr. Zekavica’s request that any additional time be served as a conditional sentence. I am mindful of the importance of denunciation and deterrence, both specific and general, when it comes to possession of firearms. However, in my view, the time Mr. Baldwin has already spent in custody, away from his daughter, during very difficult times of a pandemic, has had a strong deterrent effect on him already. I am also mindful that Mr. Baldwin is a good candidate for rehabilitation and has shown insight into his offending behaviour.
[79] Finally, I am mindful that the current conditions of the pandemic, which continue to have a significant impact on inmates at the Toronto detention centres, warrant consideration on the issue of whether a conditional sentence is appropriate.
[80] I have considered the matter carefully and I am satisfied that it would be in the interests of justice, and would not endanger public safety, to allow Mr. Baldwin to serve the balance of his sentence in the community. Courts have frequently stated that conditional sentences can have a deterrent effect, in part through the imposition of stringent conditions. I therefore order the balance of Mr. Baldwin’s sentence of 327 days or approximately 11 months to be served as a conditional sentence.
[81] The terms of the conditional sentence will be as follows:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so;
Report to a supervisor within 2 business days of this order and thereafter as directed;
Remain in the province of Ontario unless written permission to go outside the province is obtained from the court or the conditional sentence supervisor;
Reside at an address approved by the conditional sentence supervisor;
Notify the conditional sentence supervisor in advance of any change in address;
Take counseling as directed by the conditional sentence supervisor, in particular for substance abuse, life skills and mental health;
Sign releases for the conditional sentence supervisor to monitor your participation and progress in any counseling programs;
Remain in your place of residence at all times and not be outside the residence except to attend work or seek employment, attend counseling, attend scheduled medical appointments involving you or an immediate member of your family, shop for necessities for one three-hour period per week, or as permitted in writing by the conditional sentence supervisor.
Do not possess any weapons as defined by the Code.
[82] I make an order under s. 109 of the Code prohibiting Mr. Baldwin from possessing any firearms, cross-bows, restricted weapons, ammunition, or explosive devices for life, this being his second s. 109 order.
[83] There will also be an order under s. 487.051 of the Code authorizing the taking of a sample of a bodily substance that is reasonably necessary for the purpose of forensic DNA analysis.[^2]
[84] The Crown did not strenuously push for the non-communication order during submissions and I do not find the circumstances warrant such an order. I therefore decline to make an order pursuant to s. 743.21 of the Code.
[85] I thank both counsel for their professionalism and excellent advocacy.
R. Maxwell J.
Released: October 12, 2021
COURT FILE NO.: CR-20-10000430-0000
DATE: 20211012
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEFFREY BALDWIN
REASONS FOR JUDGMENT
Maxwell, J.
Released: October 12, 2021
[^1]: The parties are in agreement that Mr. Baldwin was not subject to any lockdowns from March to September 6, 2021 when he was housed in the Toronto South Detention Centre’s “work unit”. Since September 6, 2021, Mr. Baldwin has been housed at the Toronto East Detention Centre. From September 28 to October 12, 2021, the Toronto East Detention Centre was under lockdown as a result of an outbreak of COVID-19.
[^2]: Correction: In delivering these reasons orally, I indicated the offences are primary designated offences under s. 487.04 of the Code. The offences are secondary designated offences. The order is unopposed and I am satisfied that the interests of justice outweigh the minimal invasion of Mr. Baldwin’s privacy interests.