ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Montel Nethersole
Defendant
Ms. L. Ducharme for the Crown
Ms. C. Demelo for the defendant
HEARD: May 26 and October 14, 2021
McArthur, j.
REASONS FOR SENTENCE
Introduction
1On January 18, 2021, Mr. Nethersole pled guilty to possessing a loaded handgun in a motor vehicle without a valid authorization contrary to s. 95(2) of the Criminal Code.
2An agreed statement of fact was filed for the guilty plea. The sentencing hearing of May 26, 2021was adjourned to make further submissions upon the release of R. v. Morris, 2021 ONCA 680.
3As to the facts, in the late evening on September 12, 2019, three friends of Mr. Nethersole were confronted by a number of bystanders after their confrontation and harassment of a taxi driver who had refused to give them a ride. These events took place at the Tim Horton’s restaurant parking lot on Wonderland Road North in London.
4One of Mr. Nethersole’s friends made a phone call and requested a gun be brought to that location. A few minutes later, Mr. Nethersole drove into the parking lot in his truck along with another male passenger. A physical melee broke out between the friends and some of the bystanders. Punches were thrown and one male bystander was stabbed. During the melee, one of the male occupants in the truck discharged a handgun into the air. It was conceded that it could not be proven beyond a reasonable doubt who discharged the handgun.
5After the shot was fired, all but one of Mr. Nethersole’s friends got into his truck and fled the scene. One remaining friend fled the scene on foot. Mr. Nethersole drove the vehicle.
6London Police Service members conducted a high-risk vehicle stop of the truck and all 4 occupants were arrested. A search incident to the arrest discovered a loaded 9 mm semi-automatic pistol in the center console of the truck. The handgun was a Polymer 80 Luger with one round in the chamber and 9 rounds in the magazine. The handgun was void of any serial numbers, was manufactured out of Polymer, is prohibited in Canada and not capable of registration on the Firearm Registry. A registration could never exist for this firearm. The discarded cartridge case found at the scene was fired from this handgun.
7The search also yielded a 31-gram bag of cocaine on the driver’s side floor area and 239 grams of marijuana in a plastic bag in the back seat.
8Mr. Nethersole, nor any of the others in the truck, had a licence to possess the seized handgun or any other firearm. Mr. Nethersole was bound by a ten-year s. 109(2) prohibition order for a drug trafficking conviction in 2012. He was also bound by a probation order starting March 20, 2019 for a conviction for possession of a schedule 1 substance.
Positions of the Parties
9Both parties agree that a jail sentence is required along with a weapons prohibition and DNA order. They disagree on the length and form of incarceration.
10The provincial Crown seeks a sentence in totality of 4 years. The provincial Crown acknowledges that the range of sentences is broad and can include a conditional sentence.
11The defence seeks an intermittent or conditional sentence after taking into consideration the past pre-sentence custody, bail terms that include house arrest, as well as for other considerations that will be addressed in this decision.
Mr. Nethersole
12Mr. Nethersole is now 28 years of age. He has a high school diploma he completed after some difficulties throughout the traditional high school years. He does not have any learning disabilities, behavioral or long-standing mental heath issues. He is employable and has employable skills.
13Two reports were prepared for the court. The first was a traditional pre-sentence report. The second report outlines Mr. Nethersole’s life as a racialized individual. These reports are filed as Exhibit 1 and 2 respectively. These reports are both thorough and detailed. Mr. Nethersole and many other family members cooperated throughout the process to prepare these reports.
14Mr. Nethersole was born and raised in London, Ontario and is the only child of his mother and father who, after a difficult relationship, separated when Mr. Nethersole was 7 years old. His mother is Caucasian and his father is black and of Jamaican heritage. His relationship with his father became estranged since age 12. He does enjoy a good relationship with his two younger half-siblings on his mother’s side as well as his stepfather, who is black. He has always had a good relationship with his mother. There were no child protection concerns growing up.
15Despite his parent’s separation and divorce, he has maintained a relationship with both his mother and his father’s extended families. His paternal uncle is a police officer who has always been supportive of him directly and indirectly. His uncle became somewhat distant as Mr. Nethersole increasingly came into conflict with the law, but he still encourages positive and better choices by Mr. Nethersole.
16Mr. Nethersole identifies as half-black. He attended a multicultural school in primary school, and he attended a new school when the family acquired a new home in another area of the city in grade 6. At this school, he was only one of two non-white students. He experienced racial slurs from others and, after the other non-white student moved away, felt very isolated in school. His mother was also aware of his racialized experience and indicated that he was asked to leave before the end of grade 8 and became frustrated and disappointed with the school.
17He struggled in grade 9 classes. His friendship with the person who had moved to Toronto eventually ended with his friend’s suicide, something he kept to himself for years. He began associating with a negative peer group from diverse backgrounds, many of whom who have had contact with the criminal justice system. Mr. Nethersole is reported to not express ill feelings toward the police as an institution. During his times incarcerated, he had no reports of misconduct and when on probation he was compliant.
18Not surprising, Mr. Nethersole’s challenges and sensitivities revolve around his identity largely from his experiences of not fitting in either as black or Caucasian. He was never sure where he fit in. His experiences as a biracial individual make the struggle with his identity unique and more challenging.
19Mr. Nethersole has also been in a positive common law relationship for approximately 13 years and is the father to two children, ages 4 and 8. His common law spouse also identifies as biracial. He is regarded as a family man and has been actively and positively involved with his children throughout despite bail terms that have separated him from residing with his immediate family members.
20His criminal record was filed as Exhibit 3. His past convictions are related and serious. His youth record commences in 2008 for armed robbery and theft with violence for which he received deferred custody dispositions and probation. This was followed in 2009 with convictions for assault, armed robberies (3 counts) for additional supervised sentences. Later in 2009, he was convicted of dangerous driving for a time-served, 25-day jail sentence and 2 year driving prohibition.
21His adult criminal record involves a drug possession for the purpose of trafficking in 2012 and failing to comply with a recognizance for which he received a 90-day total intermittent jail sentence and s. 109 weapons prohibition. In 2013, he was convicted of using counterfeit money and received a 7-day jail sentence and 18 months probation. In 2019, he was convicted in Sarnia of simple possession of a prohibited substance, fined $2,500 and received a 12-month probationary period.
22Mr. Nethersole may not entirely appreciate even now just how fortunate he is to get along well and have supportive family members. He knows his family members do not condone the choices that he has made. Whether he knows it or not, his family is a substantial anchor and source of stability and are central to his own personal growth in the future. His choice is obvious; plant both feet firmly with his family or remain having one foot in the world of his family and the other in the world of negative associations.
Principles of Sentencing
23The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code.
24As mentioned, the Ontario Court of Appeal decision in Morris was released on October 8, 2021. That decision has particular relevance to this case on many levels.
25Firstly, the Gladue methodology, as initially submitted by defence counsel in this case, was determined by the court not to apply to black offenders. That jurisprudence might inform the approach to be taken in some respects when assessing the impact of anti-black racism on sentencing.
26The court can take judicial notice of the existence of overt and systemic anti-black racism in Canadian society and the criminal justice system in particular. The social realities that have produced or contributed to such behavior can be acknowledged and serve to guide the decision making of the court.
27As recommended by our Court of Appeal, I have reviewed and considered “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” which describes and analyzes the research that has been done on the existence, causes and impact of anti-black racism in Canadian society and particularly the Toronto area. As the Court of Appeal has clarified, the judge’s task is not primarily aimed at holding the criminal justice system accountable for systemic failures.
28Various aspects of that report have informed this court and have been considered in these reasons. Some notable points from that report, recognizing the experiences of black and bi-racial persons between Toronto and London may differ, include the following:
a. The understanding by the court of the offender’s behavior should acknowledge and consider the past and present broader experiences of racism, discrimination and marginalization as well as the overrepresentation of young Black Canadians in the criminal justice system that historically treated them with hostility, disdain and the stereotypical assumption to have an innate propensity for crime and violence;
b. Social realities have produced or contributed to offending behavior. The effects of racial marginalization and the perception of having to survive in a world that does not respond to reasonable efforts to belong and achieve to be a good person, often led to toughness, violence, disregard for danger or death and maladaptive forms of masculinity that have limited opportunities as these individuals navigate the world;
c. Exclusion from school is widely recognized as a driver for wider social exclusion and is highly correlated with unemployment and involvement with crime.
d. Instead of an individual pathology, Black criminality has been characterized as a group phenomenon. Such negative views within the court system can reinforce views that contribute to criminal offending where evidence suggest Black youth engage in violence as a means of self-help for protection.
29Secondly, in Morris, the defendant was 23 years of age at the time of the offence where he was in possession of a loaded handgun that had been concealed and discarded in a jacket while being pursued in a foot chase from police. He was convicted after trial. He had no prior criminal record, had ongoing medical and mental health problems from injuries from an earlier attack and stabbing. His father had died when he was young and was raised by his mother with whom he was close. It was found that positive personal characteristics had been largely submerged in a lifetime of negative experiences of which many were tied to institutional or overt racism.
30Thirdly, the court re-stated and re-affirmed that a sentencing judge must impose a sentence that is tailored to the individual offender and the specific offence.
31Fourth, the judge must determine a fit sentence governed by the fundamental tenets of criminal responsibility, including free will, and purposes, principles and objectives of sentencing laid down in the comprehensive provisions of the Criminal Code with the fundamental purpose being as identified in s. 718:
to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…
32The court observed that s. 718 recognizes that just sanctions will have one or more of the objectives identified in subsections (a) to (f) and directs that the proper blending of objectives is guided by the loadstar principle of proportionality where, in view of the other guiding principles of sentence in s. 718.2 (b) to (e), the fundamental principle of sentencing expressed in s. 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. See paras. 58 and 59.
33In Morris, the court indicates that the gravity and serious of that offence, as here, is not diminished by evidence which sheds light on why the accused chose to commit the crime but can explain why an offender made a choice to commit a particular crime in specified circumstances where these speak to the offender’s moral responsibility, not the seriousness of the crime. See paras. 75 and 76.
34Fifth, in the assessment of the gravity or the seriousness of the offence as one part of the proportionality analysis, some features are identified in s. 728.2(a). The court stated and referenced in relation to gun offences as follows:
68As described in Friesen, at paras. 75-76, the gravity of an offence takes into account the normative wrongfulness of the conduct and the harm posed or caused by the conduct. Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA), at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15.
69The seriousness or gravity of an offence affects the ordering and weighing of the various objectives of sentencing identified in s. 718. Generally speaking, the more serious the offence, the stronger the need to denounce the unlawful conduct and deter the offender and others from further offending. Parliament has drawn the connection between the seriousness of the offence, and denunciation and deterrence by identifying various categories of serious crimes (e.g., crimes against children, the police, and vulnerable persons) for which primary consideration must be given to the objectives of denunciation and deterrence: Criminal Code, ss. 718.01, 718.02, 718.03, 718.04.
70When the gravity of the offence demands an emphasis on the objectives of denunciation and deterrence, the proportionality principle will most often require a disposition that includes imprisonment. Wagner J. (as he then was) observed in Lacasse, at para. 6:
[A]s in all cases in which general or specific deterrence and denunciation must be emphasized, the courts have very few options other than imprisonment for meeting these objectives, which are essential to the maintenance of a just, peaceful and law‑abiding society.
71Apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC), at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95: see also Nur (ONCA), at para. 206; R. v. Mansingh, 2017 ONCA 68, at para. 24; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.
72The trial judge acknowledged that deterrence and denunciation were the most important objectives when sentencing Mr. Morris. He accepted that those objectives required a significant jail term.
35In Morris, the court of appeal imposed a sentence of two years less a day on the s. 95 Criminal Code offence which included taking account of mitigating factors, the lack of record, he was a youthful first time offender and there was a breach of the Charter Right for the excessive force upon the accused during the police pursuit when a police vehicle drove over his foot.
36I have also considered the cases and sentences imposed as provided by counsel, particularly R. v. Nur, 2013 ONCA 677 as affirmed by the Supreme Court of Canada in 2015 SCC 15, R. v. Le, 2014 ONSC 4288, R. v. Smickle, 2014 ONCA 49, R. v. Biya, 2018 ONSC 6887, R. v. Mark, [2018] O.J. No. 270, R. v. Mansingh, 2016 ONSC 94, [2016] O.J. No. 92 affirmed by the Supreme Court of Canada in 2017 ONCA 68, R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038, R. v. Omoragbon, 202 ONCA 336, R. v. Ledinek, [2018] No. 6503 affirmed by the Court of Appeal in 2018 ONCA 1017, R. v. Williams, 20018 ONSC 5409, R. v. Marfo, 2020 ONSC 5663, R. v. Jackson, 2018 ONSC 2527, R. v. T.A.P., 2014 ONCA 141, R. v. Hassan, 2017 ONSC 4570 and R. v. Mohiadin, 2021 ONCA 122.
Aggravating Factors
37The aggravating factors in this case are significant and include the following:
a. the possession and transport of a handgun that was discharged in an area that is frequented by many members of the public;
b. leaving the scene with the handgun concealed in the motor vehicle and operating that vehicle on a public roadway within the city;
c. a live round was chambered when the handgun was discovered and seized;
d. the gun had no serial number, was made of polymer and unregistrable in Canada. This all leads to the rational conclusion that the gun was manufactured and obtained for nefarious reasons. There could be no lawful use of this weapon at any time
e. Mr. Nethersole has a significant criminal record that includes a number of violent offences where weapons have been used;
f. Mr. Nethersole was subject to a weapons prohibition from a prior criminal conviction and he was on probation for another criminal conviction at the time of this offence.
Mitigating Factors
38Mr. Nethersole pled guilty to the offence. He also expressed his remorse when addressing the court on both occasions. Mr. Nethersole is both articulate and intelligent. He expressed himself in a sincere and thoughtful manner.
39He has maintained long term and close relationships with his common law partner and young children. He expressed some insight regarding the effects of bail terms and periods of pre-sentence incarceration upon him, his partner and children. He has a supportive extended family who provide examples to cope and transcend racial bias that he has experienced.
40With such a positive immediate family, Mr. Nethersole unfortunately has chosen negative peer associations to overshadow and influence a major part of his conduct and life. This has increasingly been to the detriment of his partner, his children, family, his employability, and himself. He now embarks on another period of longer incarceration. Peer involvement was also the basis of his actions for this incident where he came to the assistance of his friends on the anniversary of the untimely death of another friend.
41It is difficult to determine the depth of his insights as to how much of a risk he has put the public, his friends and himself in. As his life becomes subject to increased periods of incarceration, Mr. Nethersole hopefully can put past associations behind him and use his intelligence, his obvious strengths as a caring parent and be a full contributing partner.
Summers credit for enhanced pre-sentence incarceration
42The credit for pre-sentence custody has consistently been allowed by the courts absent justification to the contrary: see R v. Summer, 2013 ONCA 147. This credit should not overwhelm the sentencing process itself. In this case, the Crown’s position is that pre-sentence custody be enhanced on the basis of 1.5 to 1.
43An enhanced credit on this basis is fair, just and appropriate in this case.
Duncan and Downes credits
44In R. v. Duncan 2016 ONCA 754 our Court of Appeal confirmed that, in appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 to 1 credit as provided in the Criminal Code.
45Other appellate decisions that have recognized the pre-sentence restrictions can and should be taken into account: In R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, Justice Rosenberg determined restrictive bail conditions were factors to be treated as a mitigating circumstance that should be taken in consideration. Other appellate decisions have recognized the impact as a collateral consequence. See also R. v. Okash, 2015 ONCA 58.
46This is not a case where the institution or authorities failed to provide medical care, avoided efforts to address legitimate interests of the accused nor has there been established unique adverse effects on Mr. Nethersole flowing from general pre-sentence conditions. As to bail consequences, the provision of an ankle bracelet was eventually removed even though he remained on a house-arrest condition.
47I acknowledge that bail provisions made employment and parenting among other things difficult, however, these remained legitimate bail provisions largely concurrent with the Covid-19 pandemic. At the same time, Mr. Nethersole was able to be employed in some capacity during some period of bail. At other times, he was not able to be employed. There is some collateral consequence due in part to the nature of the restrictions while on some period of bail. A modest credit will be factored in in this regard.
48As to the issue that arose as to Mr. Nethersole being recently charged with similar offences, the defence has the onus to demonstrate hardship particularly to support a credit beyond 1.5 to 1. The Crown sought to lead the fact the defendant was charged. The mere fact of a charge is not sufficient. There must be some relevant factual basis of the underlying conduct placed before the court to merit consideration. There is no factual basis to the conduct before this court. In this situation, the fact of Mr. Nethersole being charged does not factor into this decision.
COVID-19 and incarceration
49I am aware Mr. Nethersole is in custody now in the Sarnia jail. Fortunately, we are emerging from the fourth wave, there has been limited COVID-19 cases at the Elgin-Middlesex Detention Centre, and in any event, it is within the powers of the correctional authorities to determine the placement of Mr. Nethersole once sentenced.
50I find it is not appropriate to consider COVID-19 as a real retrospective collateral consequence nor to do so on a prospective basis in this case. COVID-19 has no relevance to this sentence. It does not serve to reduce the sentence further on this basis. I have also considered other situations encountered in R. v. Hannaford, 2020 ONSC 3665 at para. 37, citing R. v. McConnell, 2020 ONCJ 177 at para. 34; R. v. Kandhai, 2020 ONSC 1611 at para. 6. I have also considered R. v. Hearns, 2020 ONSC 2365 at paras. 2, 20 as cited by counsel.
Summary and Conclusions
51In loaded unlawful handgun possession situations in areas with members of the public, general or specific deterrence and denunciation must be emphasized. This court has very few options other than imprisonment. What is essential is the maintenance of a just, peaceful and law‑abiding society.
52Unfortunately, handgun possession continues in our community. Such conduct is both grave and serious. Mr. Nethersole, like all members of the community, should clearly expect that sentences for possession of firearms in the context and background of violent incidents in public areas will continue to regularly attract penitentiary sentences.
53This court has also taken into careful consideration Mr. Nethersole’s experiences growing up as a racialized youth in this community as a factor in relation to his level of moral blameworthiness. His struggles as a biracial youth are a product of how others perceived him and how he sees and feels about himself. The reality is that his biracial struggles affected areas of his life such as his schooling and sense of belonging with others and the larger community. His associations with a diverse group have veered into negative influences and areas to which he has succumbed. Even though the court must emphasize general and specific deterrence, Mr. Nethersole’s racial experiences remain factors that merit weight in determining a proper and fit sentence.
54This court also acknowledges the prospects for Mr. Nethersole’s rehabilitation and a family connection and support that provide some optimism. He, however, is the only one to make the decision to change his peer associations and direction and accept the family encouragement and support that most offenders before our courts seldom have. But for the mitigating factors of the plea, his background and his family’s positive influence, the court would have no concern about imposing a period of 4 years in jail.
55The court has been informed by counsel that Mr. Nethersole has been incarcerated as follows:
a. on arrest from September 12, 2019 to release on bail on September 26, 2019 for 15 days and enhanced, on 1.5 to 1 basis, for a total of 23 days time served;
b. since his recent arrest on June 17, 2021 to today is 148 days and enhanced on a 1.5 to 1 basis for a total of 220 days time served;
c. total time served is 243 days.
56To maintain principles of denunciation and general deterrence and the principle of totality and proportionality, and after considering the aggravating and mitigating factors and a modest consideration for the collateral consequences as referred to above, the sentence of the court is as follows:
a. The sentence would have been 3 years and 6 months. In view of the credits for time served being 243 days and credit while on bail terms of 9 months, the sentence remaining shall be 25 months, or 2 years and 1 month in jail;
b. This is a secondary offence and I order that a sample of your blood shall be provided for DNA databank purposes. That order shall remain in effect until executed;
c. There shall also be a lifetime prohibition order under s. 109 of the Criminal Code as to weapons. You shall not possess any weapons including firearms for the rest of your life;
d. There shall also be an order of forfeiture of the firearm seized in this matter pursuant to s. 491(1) of the Criminal Code;
57This is a substantial sentence for you Mr. Nethersole and is a substantial increase from past sentences you have received. You should be aware that any future similar convictions may also be substantial and likely increase. This is also a sentence that others who are like-minded as you should take notice of.
58Mr. Nethersole, you are intelligent. You have abilities. You have a supportive family. You have expressed your disappointment for not being a parent for part of your children’s young lives while you were on bail and have now been incarcerated for some time.
59You should have seriously reflected quite some time ago whether you want to continue to jeopardize your role in your family relationships by choosing negative peer associations and possessing guns, for whatever reason, over them. The next best time to reflect and decide is now and the months ahead.
“Justice M.D. McArthur”
Justice M.D. McArthur
Released: November 12, 2021
