COURT FILE NO.: CR-20-40000445

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

RESHAUN TABNOR

Defendant

Arian Khader, for the Crown

Tobias Okada-Phillips, for the Defendant

HEARD: September 13, 14, 16, 17, 20-24, 27-29, November 9, 17, 2021

P. CAMPBELL J.

REASONS FOR SENTENCE

1Mr. Tabnor has been convicted of possession of a prohibited firearm contrary to s. 95(1) of the Criminal Code and possession of a prohibited device—a high-capacity cartridge magazine—contrary to s. 92(2). He now faces sentence for the two convictions which were the subject of extensive factual analysis in my reasons for judgment, released on November 9, 2021. The maximum sentence for both offences is ten years imprisonment. The Crown seeks a global sentence of seven years while the defence argues for a penalty at or near time served—one year of actual custody, equivalent to about two and a half or three years when consideration is given to a period of house arrest and to the difficult conditions of Mr. Tabnor’s time in detention.

A. BACKGROUND

(i) The Offence

2Mr. Tabnor was a drug dealer and owned the firearm in question, a Smith & Wesson semi-automatic handgun, primarily for that purpose. He kept the weapon some of the time concealed behind the driver's side door panel of his car. At other times he carried it with him into social settings. When the gun was discovered, it contained thirteen cartridges with one in the chamber and twelve in its oversized magazine.

3Forensic analysis of the gun created a tight circumstantial link between Mr. Tabnor and a shocking, dangerous public shooting near the intersection of Grandravine Drive and Keele St. in Toronto in the early evening of March 11, 2019. The gun was discharged five times toward a Lexus automobile driven by Walwin Brown. Mr. Brown escaped injury but could easily have been killed by the rapidly fired bullets. As it was, he was deeply shaken.

4The shooter returned to the vehicle which had brought him to the scene and was driven away.

5While many of the facts surrounding this incident, from the motivation for it to the identity of the shooter and his relationship to Mr. Tabnor, remain unclear, I concluded beyond a reasonable doubt that Mr. Tabnor was involved in the episode, that he was likely the driver rather than the shooter, that he pursued Mr. Brown's vehicle for about three minutes before the shooting, that he furnished his firearm to the shooter, and that he waited for the shooter and helped him flee. I also made an explicit finding that in pursuing Mr. Brown and transferring his gun to the shooter, Mr. Tabnor was aware that the shooter would employ the gun in a dangerous manner to perform a serious criminal act. I held that there was a reasonable doubt that Mr. Tabnor had the mental state required for liability as a party to attempted murder, count 1 on the indictment.

(ii) Personal Circumstances of Mr. Tabnor

6I know less than I would like to about Mr. Tabnor. Details of his educational and employment history, his aptitudes and interests, his involvement in organizations and activities, the effect, if any, of drugs he admits consuming, and the results of any professional evaluations of him are all unknown to me. I infer from a series of letters from his immediate and extended family that he has substantial emotional support from that quarter which he can draw on when he is released from custody. His inclination to make the most of that advantage, however, is not clear to me at present.

7I accept that Mr. Tabnor, still a yet relatively young man at 25, was raised in the Jane and Finch area of Toronto, a part of the city marked by economic disadvantage and societal fault lines that cannot be separated from endemic anti-Black racism in the larger community. His trial testimony that he was shot at in the past, before acquiring his own firearm, has not been disproven and I will proceed on the footing that it is true. It is an element of his testimony that I found to be at least plausible.

8Mr. Tabnor is presently incarcerated on unrelated charges after being granted a strict bail, with house arrest, on these matters. He has been held in "lockdown" for 211 days during this period of pre-sentence incarceration. The Crown and defence agree that he should be credited with one year (364 or 365 days) of pre-sentence custody and that, because it was served in the perilous and restrictive conditions created by the Covid-19 pandemic, this should lead to a double credit against his ultimate sentence.

B. THE LEGAL FRAMEWORK

9The most basic source of authority on imposition of sentence is sections 718 to 718.2 of the Criminal Code which set out the purpose and objectives of the sentencing process, its most fundamental principle—proportionality to the gravity of the offence and the responsibility of the offender—and several additional principles that shape a just penalty. These include, in s. 718.2, regard for certain aggravating factors as well as principles requiring, among other things, parity between cases with similar facts, a fair total sentence when multiple convictions have been entered, and restraint—not depriving defendants of their liberty to a greater extent than necessary to attain the objectives of sentencing.

10I have carefully reviewed authorities from this court, the Court of Appeal for Ontario and the Supreme Court of Canada in an effort to identify an appropriate range of sentence in cases similar to this one. R. v. Nur, 2015 SCC 15 , R. v. Bellisimo, 2009 ONCA 49, R. v. Morris 2021 ONCA 680, R. v. Jama, 2021 ONSC 4871 and R. v. Graham, 2018 ONSC 6817 include explicit discussion of ranges of sentence in cases where firearms are unlawfully possessed or discharged. Other authorities, including R. v. Marshall, 2015 ONCA 692, R. v. Reyes 2018 ONCJ 185, R. v. Stewart, 2021 ONCJ 65 , R. v. Toussaint, [2020] O.J. No. 543, R. v. Campbell, 2021 ONSC 4193 and R. v. Mohammed, 2016 ONCJ 801, apply the authorities to fact situations comparable in certain respects to this case. None of the authorities to which I have been referred, nor any which I could locate myself, feature all the facts important to the sentencing of Mr. Tabnor.

C. CHARACTERIZATION OF THE OFFENCES

11Mr. Tabnor was acquitted of attempted murder on a count that did not include lesser offences. He is to be sentenced only for the two offences of unlawful possession of which he has been found guilty. The first challenge is to place those offences on the wide continuum of seriousness within which the possession of prohibited firearms can fall. An unlawful handgun can be acquired and kept for self-defence at home, which is a relatively unaggravated form of the offence. It may be taken outside the home, elevating the danger to the public even if it is only to be used defensively. It may be acquired with an intent to use it in connection with other criminal activity, frequently drug-dealing, which entails still greater risks to the public because of the potential volatility of such transactions. At the furthest end of the continuum, a gun may be carried with a willingness or intention to use it aggressively, or violently, in an assault, robbery or homicide. The inherent gravity of the crime, when assessed along with the offender's antecedents and prospects, helps place the offence at a point on the range of available sentences. In this case, that range begins at a non-custodial penalty and extends up to ten years in prison.

12Examining this strictly as an offence of possession of a prohibited firearm and a prohibited device, I find it to be among the worst instances of its kind. The routine possession of a gun, with an oversized magazine, in public by Mr. Tabnor as part of the equipment with which he conducted his work as a drug dealer, is well along the continuum of culpability. When, on March 11, 2019, he revealed himself as willing to transfer the gun to a companion, for malevolent use against an innocent individual, whom Mr. Tabnor was prepared to pursue in his car, he took the unlawful possession to a much higher level. This case is not aggravated only by Mr. Tabnor's use of the firearm for the safe and effective trafficking of drugs. Its most prominent feature is the willingness of Mr. Tabnor to allow the gun to be employed in a daylight confrontation on a heavily-travelled roadway that could easily have ended in violence or death, either to the target—Mr. Brown—or to a bystander or motorist. Characterizing an act of possession can be assisted by what the possessor does with the item possessed. Here, Mr. Tabnor made the nature of his relationship to the gun he possessed evident by his actions with it.

13I do not agree with Mr. Okada-Phillips that the transfer of the gun can be separated from its possession for the purpose of sentencing. When Mr. Tabnor made his U-turn on Grandravine Drive and gave his gun to his companion, he did not know exactly what the companion would do—or at least that knowledge has not been proven. However, there is no logical view of the facts under which he did not contemplate that the gun would be used for a hostile act, subjecting the target and others to great fear and a high risk of injury or death. Just because he did not know that murder was the shooter's intention does not mean that murder, and a range of lesser outcomes, were not possible and within his contemplation. His undoubted awareness that many dreadful things could happen when the gun was turned over to his companion colours his own possession of the weapon and substantially elevates its gravity.

14It follows that I do not agree with the submission that his criminal conduct was suspended or terminated by turning over physical possession of the firearm to the companion. I do not believe this is true either as a matter of principle, in assessing his culpability, or in law: Mr. Tabnor did not give up legal possession of the gun simply because he granted another person temporary entitlement to use it. While the shooting took place, the gun was in the joint possession of the two men: Criminal Code s. 4 (3).

D. THE RANGE OF SENTENCE

15A useful starting point for analysis is the judgment of Chief Justice McLachlin in Nur where she said, at para. 82, that in the "vast majority" of cases, a three-year sentence for a violation of s. 95(1) is likely to be appropriate. That observation referred to cases where the offence extended far beyond a "licensing" infraction and constituted a "true crime", the most common example of which is the armed drug dealer (paras. 82, 122). I acknowledge the point made by Mr. Okada-Phillips that cases since Nur illustrate that three years is not a standard or baseline for firearm possession cases. However, given what I know of Mr. Tabnor's deep involvement in drug dealing, and the frequency with which he armed himself in public, I would see no reason to give him a sentence lower than three years if all he had done with the gun was carry it about to protect himself during drug transactions.

16This gun, however, was shot five times and came within inches of causing grievous injury or death to Mr. Brown while creating a grave risk to others at the same time. Decisions made by Mr. Tabnor while he was in possession and control of the gun led to that happening. This fact about Mr. Tabnor's possession of the gun takes his culpability to a distinctly higher level. The Crown invited me to consider the range of seven to eleven years, referring to the judgment of the Court of Appeal for Ontario in Bellissimo, which involved a shooting in a restaurant where two people were injured and a third could have been killed. There is little elaboration on the facts in Bellissimo nor an analysis of just what kinds of conduct fit a case within its seven to eleven year range; it may be limited to cases where injury has occurred or been attempted: see Jama at para. 44. This is a case of possession and, much as I may suspect Mr. Tabnor knew what the shooter would do, that has not been proven. His awareness of the range of things that the shooter might do, however, inevitably included discharging the gun. Mr. Tabnor’s actions were essential to creating a situation where extreme psychological harm was inevitable and grave physical harm was entirely foreseeable.

17For these reasons, I do not place Mr. Tabnor's case within the Bellissimo framework for assessing gravity and imposing a sentence proportionate to it. Nonetheless, it is in a class well above the ordinary case under s. 95(1) contemplated in Nur.

18Jama provides a useful comparison. The defendant in Jama drove a car into an apartment parking lot where his passenger fired three shots in the direction of another car which was occupied. Mr. Jama then drove away with the shooter. Because they were never identified, it was unknown whether injuries had been caused to the occupants of the second vehicle. Mr. Jama was convicted of recklessly discharging a restricted firearm, as a party. For his part in the crime, he was sentenced to five years by Schreck J. before deductions for pre-sentence custody.

19The level of moral culpability in the two cases is comparable, though there are differences. On the one hand, this case appears more serious because Mr. Tabnor's conduct was already aggravated by his routine possession of a gun to facilitate drug trafficking, a feature absent from Jama. Moreover, the gun in this case belonged to Mr. Tabnor and was given by him to the shooter. The weapon was returned to Mr. Tabnor, who reloaded it to its full capacity in an oversized magazine which was also not a feature of the Jama case. On the other hand, Jama was convicted of the offence of discharging the firearm whereas Mr. Tabnor, despite his integral role in the crime, is being sentenced for possession of the gun, not its discharge.

20Justice Schreck viewed the facts of Jama as supporting a sentence in the range of five to seven years, placing it between the three to five years appropriate for mere possession of a firearm and below the range in Bellissimo for cases where firearms are discharged with the intent to cause injury (para. 25).

E. CONSIDERATION OF THE EFFECTS OF RACISM

21Mr. Okada-Phillips invites me to apply the reasoning of the Court of Appeal for Ontario in Morris to the sentencing of Mr. Tabnor. While the record as to his background and its effect on his moral blameworthiness is thinner than ideal, I have decided that the circumstances of his upbringing, in the community where he was raised, should be considered in identifying the degree of his responsibility for the crimes he committed.

22I have before me evidence which I accept of the following facts about Mr. Tabnor:

• He was brought up in economically disadvantaged circumstances that led eventually to his living in Toronto Community Housing.

• He experienced, as his mother indicates in correspondence to the Court, "traumatic events that were addressed to community Housing" from their first week living in their TCH apartment.

• He was raised by his mother, though he has had the support of extended family and continued contact with his father as well.

• He participated as a youth in community programs intended to help him become a successful, law-abiding adult. For some period of his life—probably not beyond his late teens—he engaged in positive and productive activities.

• He was exposed to violence, including gun violence, as a youth and it instilled fear in him as he led his life in the Jane-Finch neighbourhood. This played some part in his deeply unwise decision to acquire a firearm, though his concern for his own safety is likely inseparable from his involvement in drug trafficking.

• Based on experience in both the community of Toronto and the criminal justice system (from which I can draw in taking judicial notice) and considering the trial record in Morris (as urged by the Court of Appeal at para. 43 of its judgment) I find that Mr. Tabnor grew up in an environment shaped to a considerable degree by systemic racism which affects most important spheres of life for young Black men in his neighbourhood, including their educational opportunities, employment opportunities, relations with the police and other authorities, and the sense of safety and well-being critical to human thriving.

23These findings support a conclusion, limited by the quality and volume of the evidence before me, that the possession of a gun, the immersion in drug trafficking and the fateful decision to turn around in pursuit of Walwin Brown, are deserving of somewhat less moral opprobrium than similarly bad choices by a person who grew up in circumstances less shaped by racial bias and its consequences than Mr. Tabnor's. Ultimately, knowing what I know of Mr. Tabnor, his conduct, and the milieu in which he came of age, I cannot reach any conclusion but that the position he now finds himself in is the product of many antecedents. His own choices, which are major moral failings, are prominent among them but the blame to be assigned cannot be wholly separated from the setting in which he made those choices and that setting cannot be separated from the history of systemic racism which has played a part in shaping it.

24In making these findings, I have considered Mr. Khader's forceful and well-argued submission that Mr. Tabnor's conduct is the very kind of behaviour that undermines the safety of his law-abiding neighbours—including people such as Mr. Brown—and that he should not be treated as the victim of a syndrome in which he is more properly seen as a villain. Put shortly, I do not think that this inter-generational social dysfunction lends itself to a binary division between the blameworthy and the faultless. Mr. Brown is truly faultless, and Mr. Tabnor, now in his 20s, appears deeply culpable. But his culpability can be fairly evaluated and, to a degree, mitigated, without being minimized or ignored. If I treat the correspondence from his family as a sketch of the youthful Mr. Tabnor, at an age when he was forming his values, selecting his companions and making his choices, and consider it against the broader backdrop of which I can take judicial notice—fortified by the Morris case—I believe there is a place for recognition of the considerations I have touched upon in assessing his level of moral responsibility.

25I add that this recognition can have only a modest effect on the sentence I am imposing. Mr. Okada-Phillips agrees that such considerations cannot alter the range of sentence appropriate for the case and it certainly could not do so on the limited information available to me about Mr. Tabnor.

F. THE APPROPRIATE GLOBAL SENTENCE

26Considering the sentences imposed and the ranges discussed in Nur, Bellissimo, Jama and Morris, in light of the facts of this case, I have concluded that the appropriate overall sentence for Mr. Tabnor falls in a range beneath the seven to eleven years in Bellissimo and above the range in Nur. I have focussed my thinking in a range of four to six years. While I have leaned toward a six-year term of imprisonment, I have decided to impose a global sentence of five years. This includes as a prominent consideration the fact that Mr. Tabnor is a first offender facing penitentiary after a grim period in pretrial custody. It also includes consideration of the findings I have made about the setting in which he was brought up and the impact on his life of racism and its indirect consequences. The five-year sentence consists of four years and six months on count 2, for possession of the prohibited firearm, and six months consecutive on count 3, for possession of the prohibited device.

27Because agreed-upon reductions in this global sentence will bring it down to considerably less than three years of incarceration, I have felt it necessary to address whether it would be appropriate to adjust it further to permit either a conditional sentence or a reformatory sentence that could be followed by probation. I have decided not to make such an adjustment. A conditional sentence would simply not be proportionate to the gravity of the crimes of which Mr. Tabnor is guilty. I understand Mr. Tabnor to be facing other charges so I cannot determine when a term of probation might take effect or how it would interact with other possible future dispositions. Nor am I persuaded that Mr. Tabnor would be compliant with conditions of probation. In short, there is no convincing reason for me to adjust the sentence I otherwise deem fit for these offences.

G. THE EFFECTIVE SENTENCE

28Both Crown and defence counsel agree that Mr. Tabnor has served one year of pre-sentence custody which should be recognized as the equivalent of two years. In addition, he has been held in lockdown for 211 days of his pre-sentence incarceration at the Toronto South Detention Centre which customarily leads to an additional half-day of credit for each lockdown day. He was on house arrest for a year and a half pending trial. While much of Canadian society experienced reduced freedom during 2020, court-imposed deprivations of liberty have a different character from those thrust upon an entire population by a pandemic and merit some recognition at this stage. I will credit Mr. Tabnor with eight months of further time served on the combined basis of the house arrest and lockdowns.

29The reductions from the five-year global sentence total two years and eight months. The resulting effective sentence is two years and four months.

30With no objection by the defence, Mr. Tabnor will be made subject to two ancillary orders:

• Under s. 109 of the Criminal Code, he will be prohibited for life from possessing firearms and other weapons and ammunition specified in the section.

• Under s. 743.21, Mr. Tabnor is prohibited from communicating, directly or indirectly, with four named witnesses during the custodial portion of the sentence. The witnesses are:

o Walwin Brown;

o Naveen Devasadayam;

o Nancy Weinstein

o Kyle McCluskey.

31Violation of these orders is a criminal offence.

P. Campbell J.