Court File and Parties

COURT FILE NO.: CR-20-50000044-0000 DATE: 20220106 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Carolyn Otter for the Crown

- and -

MARCUS CUMSILLE Hilary Dudding for Mr. Cumsille

HEARD: December 10, 2021.

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] Following a trial, I found Mr. Cumsille guilty on September 16, 2021, of offering to transfer a firearm, contrary to s. 99(1)(b) of the Criminal Code. Mr. Cumsille appears before me today for sentencing.

[2] Prior to making their oral submissions on sentence, Ms. Dudding and Ms. Otter filed very helpful written sentencing submissions. Together they worked to narrow the issues the court has to decide. They have agreed on the amount of credit Mr. Cumsille should receive for the time he spent in pre-trial custody and the time he has spent under house arrest conditions pursuant to a judicial interim release order.

[3] They have also agreed that the court is not bound to impose the minimum sentence of three years in prison mandated by s. 99(2)(a) of the Criminal Code for an offender convicted of an offence, contrary to s. 99(1)(b) for the first time. This mandatory minimum penalty has been declared unconstitutional in several decisions of this Court. See R. v. Ball, 2019 ONSC 6410; R. v. Hussain, 2015 ONSC 7115; R. v. Bajwa, 2020 ONSC 162. Ms. Otter does not seek to demonstrate that these decisions are “plainly wrong,” R. v. Sullivan, 2020 ONCA 333 at para. 38; R. v. Scarlett, 2013 ONSC 562 at para. 43 and I will proceed on the basis that there is no mandatory minimum sentence in this case.

[4] Ms. Otter submits that the fit sentence in all the circumstances of this case is three years in prison, before credit is given for pre-trial custody and stringent bail conditions. Ms. Dudding submits that I should credit Mr. Cumsille with between 180 and 240 days in custody and suspend sentence.

Circumstances of the Offence

[5] In March of 2018, Shaquille Belle called Mr. Cumsille and negotiated the purchase of a firearm from Mr. Cumsille for $2,500.00. At the time, Mr. Belle was incarcerated in a federal penitentiary. He told Mr. Cumsille that he was attempting to “arm up the youth” in his neighbourhood. The communications between Mr. Belle and Mr. Cumsille were intercepted.

[6] I found that although Mr. Cumsille agreed to sell a firearm to Mr. Belle in March, he did not, nor did he ever intend to. He did not tell Mr. Belle that, however. He wanted Mr. Belle to believe that he was going to sell him a firearm. In June 2018, Mr. Belle followed up with Mr. Cumsille to arrange delivery of the firearm. A firearm was not delivered.

[7] Mr. Cumsille testified at his trial and offered several explanations for pretending to agree to sell a firearm to Mr. Belle. I set them out in my Reasons for Judgment as follows:

He [Mr. Cumsille] testified that he pretended to have a firearm to sell to keep Mr. Belle happy. He said that he did that for several reasons. On the street, it is important to be seen as helping. If he had said that he did not want to sell a gun, that would be a sign of disrespect. If he had said that he did not have a gun to sell, Mr. Belle might tell people on the street that he was a fake and was rapping about a lie. That would be very damaging to Mr. Cumsille’s rap career. It would also make Mr. Cumsille an easy target if it was known on the street that he did not have a firearm. Finally, he testified that Mr. Belle was often suspicious of his friends and if Mr. Cumsille had said that he did not have a firearm or that he had already sold it, Mr. Belle would think he had sold it to people who were against him. R. v. Allegro et al., 2021 ONSC 6138, at para. 59

[8] The evidence at trial established that Mr. Belle was an influential person in the community, who was able to enlist others to commit crimes on his behalf and to influence Mr. Cumsille’s standing in the community. He was able to do this despite having been incarcerated in a federal penitentiary for seven years.

[9] The evidence also established that Mr. Cumsille had been enjoying some success as a gangster rap artist, writing and recording music videos about poverty, crime, violence, guns, and prison. His reputation as someone writing about his own life experience was important to his success as an artist.

[10] In March 2018, Mr. Cumsille was engaged in the drug trade, trafficking drugs in the Lakeshore neighbourhood where he lived.

Circumstances of the Offender

Personal Background

[11] Mr. Cumsille is 28 years old. He was born in 1993. He was raised by his grandmother in the Galloway neighbourhood of Scarborough until he was 10 years old, when he moved in with his mother in the Lakeshore neighbourhood. His father was incarcerated the year he was born and was deported to Jamaica in 1999. He was murdered in 2007 in Jamaica.

[12] Instability and poverty were significant features of Mr. Cumsille’s early life. He and his mother lacked stable housing. They lived in dangerous neighbourhoods where, as a young black boy, he was drawn into conflicts by older boys with people in adjoining neighbourhoods. He sought out friends who could protect him and began socializing with people living in similar circumstances. He met Mr. Belle and Mr. Belle’s brother in 2009, when he was 15 years old.

[13] Mr. Cumsille left his mother’s home and high school at age 16 when his girlfriend became pregnant. Despite his attempts, he was unable to find work to support his daughter and turned to selling drugs to earn a living. His daughter, who is now ten years old, lives with her mother. Mr. Cumsille sees her a few times a month.

[14] His relationship with his daughter’s mother did not last long, and at age 18 Mr. Cumsille started a relationship with his long-time partner, Chanelle Espinosa. Ms. Espinosa tragically died in the spring of 2020 of a drug overdose.

[15] Mr. Cumsille began using heroin when he was 18 years old. He has struggled with an opiate addiction since that time. His use of opiates became regular when he and Ms. Espinosa moved to British Columbia in April 2018. Since being arrested in July 2018 and released in August 2018 under house arrest conditions, he has had significant periods of sobriety during which he has completed a year-long academic bridging program at George Brown College and has obtained work through employment agencies.

[16] However, he struggles to maintain sobriety when he is under stress. In the fall of 2020, he was hospitalized at CAMH after experiencing psychosis, paranoia and extreme disorientation arising from his substance abuse disorder, and possibly PTSD. Someone had threatened over social media to shoot him and had invited others to do the same. He remained in hospital for several days at the time to stabilize. While preparing to give evidence at this trial, he again began using drugs. He had a severe reaction to withdrawal from them, resulting in a further admission to CAMH during this trial.

[17] Mr. Cumsille has been a patient at CAMH since October 2020. He is currently a patient of the Concurrent Outpatient Medical and Psychosocial Addiction Support Service at CAMH. A letter from his case worker at CAMH dated December 1, 2021, indicates that Mr. Cumsille has abstained from drugs for over two months, and is currently receiving monthly injections of Sublocade, a drug that helps to reduce the cravings for opiates.

[18] CAMH has assessed Mr. Cumsille for residential drug treatment and, in October 2021, referred him to two such programs. Mr. Cumsille remains on the waiting list for them.

[19] Mr. Cumsille has a criminal record, which begins in 2011, when he was a youth. It is as follows:

2011-06-28 Youth Court traffic schedule I substance 18 months probation

2011-08-31 Youth Court (1) fail to comply disposition (2) possession schedule II substance (3) fail to comply recognizance 18 months probation on each charge concurrent

2013-02-14 (1) fail to comply disposition x2 (2) possession property obtained by crime under $5000 (3) fail to attend court 1 year probation (3) suspended sentence and 1 year probation (credit for 88 days pre-sentence custody)

2015-06-22 fail to comply recognizance 1day (credit for 21 days pre‑sentence custody)

2017-01-18 assault $50 (50 days pre‑sentence custody)

2017-01-18 fail to comply recognizance $50 (50 days pre‑sentence custody)

2020-01-06 theft under $5,000 suspended sentence and 12 months probation (21 days pre‑sentence custody)

[20] Since his release on bail in August 2018, Mr. Cumsille has been subject to house arrest unless in the presence of his surety, with certain exceptions for work or school. Except for a conviction for theft under in 2020, he has complied with the conditions. He currently lives with his mother and her husband. While on bail, he has worked at several companies through an agency, but his attempts to obtain permanent employment have been thwarted by criminal record checks done by potential employers.

[21] Also, while on bail, Mr. Cumsille has made progress to turn his life in a different direction. He has taken steps to distant himself from the “gangster” lifestyle he was involved in at the time of this offence. Although music has played a large part in his life since 2012, he has stopped making gangster rap YouTube videos as a means of moving on from this milieu. He connected with CAMH in October 2020 to try to deal with his opiate addiction.

[22] Ms. Dudding submits that the court should consider the impact of anti-Black racism on Mr. Cumsille. Ms. Otter does not disagree that this is a mitigating feature of this case. Mr. Cumsille was raised, first by his grandmother, and then his mother, in low income communities in Toronto, where he experienced poverty and housing instability. His father was absent from his life due to incarceration, deportation, and a violent death. Mr. Cumsille had limited employment options as a young black teenager with little education and trying to support a new baby, driving him into the drug trade. The support and sense of belonging he derived from the gangster rap and crime milieu in which he lived in 2018 made it difficult for him to tell Mr. Belle that he would not sell him a firearm. As Ms. Dudding wrote in her submissions, “With other or better supports and opportunities in his life, Mr. Cumsille may have been more resilient, less in thrall with gang mentality, and able to avoid ‘going along’ with Mr. Belle’s demands.”

[23] Mr. Cumsille’s background and the environment in which he grew up are relevant considerations on sentence. To ignore them would be contrary to the requirement that, “sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.” R. v. Ipeelee, 2012 SCC 13, at para. 75

[24] The Ontario Court of Appeal recently noted, “that an offender’s life experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system.” The Court recognized that such life experiences can influence the choices made by offenders and can explain in part why an offender committed the offence. R. v. Morris, 2021 ONCA 680, at para. 75

[25] Mr. Cumsille’s background and personal circumstances do not mitigate the seriousness of the offence he has committed. They are, however, relevant to his degree of responsibility, R. v. Morris, 2021 ONCA 680, at para. 77 which is important in determining a proportionate sentence. Proportionality must be determined in relation to both the offender and the offence. R. v. Lacasse, 2015 SCC 64, at para. 53

Delay

[26] Ms. Dudding asks the court to consider the delay in concluding Mr. Cumsille’s trial as a mitigating factor on sentence. She referred to R. v. Bosley, in which Justice Doherty found that “excessive delay which causes prolonged uncertainty for an offender but does not reach constitutional limits can be taken into consideration as a factor in mitigation of sentence.” , [1992] O.J. No. 2656, at para. 44 (C.A.)

[27] On September 11, 2020, Justice Dunphy heard a s. 11(b) application brought by Mr. Cumsille. In his Reasons for Decision, R. v. Allegro, 2020 ONSC 5614 Justice Dunphy estimated that Mr. Cumsille’s trial would end on February 12, 2021, approximately thirty-one months after his arrest. Justice Dunphy dismissed the application, finding that the length of the delay was justified by the complexity of the case. Mr. Cumsille was not found to have contributed to the delay in any way.

[28] As events unfolded, Mr. Cumsille’s trial is concluding today, just one week shy of forty‑one months after his arrest and eleven months later than Justice Dunphy’s estimate. Several factors contributed to the delay. The trial began on January 4, 2021 as scheduled. The hearing of evidence concluded on February 2. One week of court time was lost due to Mr. Cumsille’s hospitalization. Counsel filed written submissions, and on March 25 and 26, made oral submissions. The first date set for the delivery of judgment of July 9, 2021 had to be changed because Mr. Belle, one of Mr. Cumsille’s co-accused, had another trial in another province that day. The accommodation of my schedule and counsel’s schedules over the summer resulted in judgment being delivered on September 16, 2021.

[29] The matter was adjourned until December 10, 2021 for the hearing of an application by Mr. Cumsille to challenge the constitutionality of the minimum sentence mandated by s. 99(2) of the Criminal Code. As I previously indicated, counsel later agreed that an application was not necessary, and I heard submissions on sentence that day.

[30] No matter the reason, the delay has meant that Mr. Cumsille has had to live for a lengthy period of time with the stress brought on by uncertainty. It has also prolonged the time that Mr. Cumsille has been subject to stringent bail conditions. The delay is properly considered a mitigating factor on sentence.

Credit for Pre-Sentence Custody and Stringent Bail Conditions

[31] Mr. Cumsille spent at total of 96 days in pre-sentence custody. I will credit him with 144 days in accordance with R. v. Summers, 2014 SCC 26.

[32] In addition, counsel agree that Mr. Cumsille should be credited with 298 days for 523 days he was under house arrest with no exceptions and 118 days of house arrest with an exception to attend school. There is no basis upon which to depart from this agreement. It properly reflects the significant restrictions that were placed on Mr. Cumsille’s liberty at a time when he was presumed innocent. R. v. Downes, [2006] O.J. No. 555, at para. 37 (C.A.)

Governing Sentencing Principles

[33] In determining the fit sentence for Mr. Cumsille, I am governed by the sentencing principles set out in the Criminal Code.

[34] The first is the fundamental purpose of sentencing set out in s. 718 of the Criminal Code, which is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one or more of the following objectives:

1. denouncing unlawful conduct,
2. deterring the offender and others from committing crimes,
3. separating offenders from society where necessary,
4. assisting in the rehabilitation of the offender,
5. providing reparations for harm done to the victim or to the community,
6. promoting a sense of responsibility in the offender, and
7. acknowledging the harm done to victims and the community.

[35] The second is the principle of proportionality set out in s. 718.1. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.

[36] I am also required by s. 718.2 to consider the following when determining the appropriate sentence:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.

Aggravating and Mitigating Circumstances

[37] I turn now to consider the aggravating and mitigating circumstances.

[38] First the aggravating circumstances.

1. The circumstances surrounding Mr. Cumsille’s agreement to sell a firearm to Mr. Belle are aggravating. Mr. Cumsille knew that Mr. Belle wanted to buy the firearm to arm the young people in his neighbourhood. As a result of Mr. Cumsille’s feigned agreement, Mr. Belle recruited a young person (Glizzie) to pick the firearm up and deliver it back to the neighbourhood. The conversations between Mr. Belle and Mr. Cumsille about the sale of the firearm occurred within the context of the criminal subculture of guns and drugs. This was not an offence akin to the breach of a regulation. This was true criminal activity.
2. Mr. Cumsille has a criminal record, which begins in 2011 when he was a youth. It includes convictions for trafficking in and possession of controlled substances, assault, theft, and numerous convictions for failing to comply with court orders.
3. Mr. Cumsille was motivated in part by economics when he agreed to sell a firearm to Mr. Belle. He wanted to protect his reputation and livelihood as gangster rap artist. He feared that Mr. Belle could ruin his reputation and thereby his earning capacity if he did not go along with his request.

[39] I have also considered the following mitigating circumstances.

1. Mr. Cumsille did not initiate the discussion about the sale of a firearm, but rather responded to Mr. Belle’s approach. He took no steps to transfer a firearm. Instead he provided Mr. Belle with convoluted directions to the person who he said would deliver the firearm, and later fabricated excuses for the failure of that person to make contact.
2. Mr. Cumsille received no money for his promise to transfer a firearm.
3. In addition to his concern about Mr. Belle damaging his reputation as a gangster rap artist, Mr. Cumsille went along with Mr. Belle’s request to purchase a firearm from him because he reasonably believed that Mr. Belle could do him harm if he did not cooperate.
4. With one exception, Mr. Cumsille has successfully complied with stringent bail conditions, including house arrest, for 42 months.
5. While on bail, Mr. Cumsille has taken steps to alter his life by furthering his education, seeking gainful employment, disassociating himself from his criminal lifestyle, and recognizing his need for therapy to address his opiate addiction and mental health issues.
6. For the reasons I have already indicated, the length of time to complete this trial and the role that anti‑Black racism played in Mr. Cumsille’s offending are mitigating factors that I have considered.

Sentences Imposed in Other Cases

[40] To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences in similar circumstances.

[41] Some of the cases relied upon by Ms. Dudding involve offenders who either offered to traffic in firearms or trafficked in firearms after being threatened with death or bodily harm. R. v. Harriott, 2017 ONSC 3393; R. v. De Vos, 2018 ONSC 6813 Some of them dealt with offenders who had no criminal record. R. v. De Vos, 2018 ONSC 6813; R. v. Bajwa, 2020 ONSC 162; R. v. Sauve, 2017 ONSC 6430; R. v. Hu, 2021 ONCJ 312 These are two important distinguishing features from Mr. Cumsille’s case.

[42] Ms. Otter indicated that that she was unable to find any cases of feigned offers to traffic by a person with a criminal record in the true crime context. She referred to cases where courts have underscored the danger that firearms present to the safety of the community and have called for sentences that emphasize deterrence and denunciation. R. v. Sampogna, 2020 ONSC 1024; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773

[43] The two cases she referenced that dealt with the offence of trafficking in firearms involved offenders with more serious and lengthier criminal records than Mr. Cumsille, who committed the offences while on bail or subject to a weapons prohibition order.

[44] In R. v. Hussain, 2018 ONCA 147, a 24-year-old offender was sentenced to three years for transferring a firearm into a friend’s car. He was on bail at the time for offences involving a firearm and had a significant criminal record. The circumstances of this case are, in my view, much more serious than Mr. Cumsille’s circumstances.

[45] The offender in R. v. Bullens, 2018 ONSC 5028 offered to sell a firearm and ammunition. He was sentenced to six years in prison. He had two prior firearm convictions and was subject to a weapons prohibition order at the time of the offence.

[46] This brief review of the cases submitted by Ms. Otter and Ms. Dudding demonstrates that the circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the governing principles that must guide my decision. There were mitigating and aggravating features in those cases that are not present in Mr. Cumsille’s case.

[47] No matter what the particular aggravating or mitigating factors are in any one case, the jurisprudence is clear that firearm offences at the “true crime” end of the spectrum merit sentences that emphasize deterrence and denunciation.

Determination of a Fit Sentence

[48] It is difficult to place the circumstances of this case within the range of sentences established by the jurisprudence. On the one hand, Mr. Cumsille did not intend to transfer a firearm. On the other hand, he agreed to do so with someone he knew to be heavily involved in criminal activity, and who had told him that he wanted to arm the young people in his neighbourhood.

[49] I cannot agree with Ms. Dudding’s submission that Mr. Cumsille’s agreement posed no real risk to society. Believing that he was going to be able to purchase a firearm from Mr. Cumsille, Mr. Belle informed others in the community that he was going to deliver it to the neighbourhood in his effort to “arm up” the youth. He also directed a young person to arrange to pick up and deliver the firearm to the neighbourhood. As Ms. Otter pointed out in her written submissions, Mr. Cumsille himself testified about the risks he faced if it was known in the community that he did not possess a firearm or if he refused to agree to offer a firearm for sale. Offering to traffic in illegal firearms to people who use them in their criminal endeavours, even where there is no intention to follow through with the offer, is not risk-free to society.

[50] I agree with Ms. Otter that a suspended sentence does not adequately address the paramount sentencing principles of deterrence and denunciation. On the other hand, a three-year penitentiary sentence is more than twice the length of sentence I imposed in R. v. De Vos, 2018 ONSC 6813, a case in which a first offender transferred three firearms to a person known to him to be a dangerous criminal. There were mitigating circumstances in that case that are not present in Mr. Cumsille’s case. Mr. De Vos was a first offender. He cooperated with the police following his arrest. He transferred the firearms in response to threats of bodily harm. But there were also aggravating features of that case that are not present in Mr. Cumsille’s case. Mr. De Vos purchased three firearms on two occasions a month apart. He transferred them to his cocaine dealer. Two of the firearms were recovered when police executed a search warrant in an unrelated investigation and seized cocaine and three firearms. One of the firearms was never recovered.

[51] The seriousness of Mr. Cumsille’s crime, his moral blameworthiness, and the aggravating and mitigating factors that I have already listed situate this case in the upper reformatory range. Although deterrence and denunciation are the paramount sentencing principles to be considered, rehabilitation cannot be overlooked, particularly given the strides Mr. Cumsille has made over the past three years. He has proven by the steps he has taken that he is capable of becoming a productive, pro-social member of the community. In all the circumstances, I find that the appropriate sentence is 17 months.

[52] As I have already outlined, Mr. Cumsille is entitled to a reduction in this sentence of 442 days or 14½ months for the time he spent in pre-sentence custody and subject to restrictive bail conditions. That leaves him with 2½ months to serve.

[53] Given that I have determined that the appropriate sentence is less than two years in prison, a conditional sentence is an available disposition if the statutory conditions set out in s. 742.1 of the Criminal Code are met. The court may order that an offender serve the sentence in the community if it is satisfied that the community’s safety would not be endangered and that a conditional sentence is consistent with the fundamental purpose and principles of sentencing.

[54] Ms. Otter argues that a conditional sentence would not adequately address the principle of denunciation. She also points out that Mr. Cumsille has six convictions for failing to comply and was convicted of theft under while on bail for this offence, making him an unsuitable candidate for a conditional sentence.

[55] Imprisonment is not the only means to achieve the sentencing objectives of general deterrence and denunciation. The Supreme Court of Canada has held that conditional sentences may be available even where deterrence and denunciation are the paramount sentencing objectives. R. v. Wells, 2000 SCC 10, at para. 35

[56] Conditional sentences are punitive. House arrest is a significant restriction on an offender’s liberty. An offender serving a sentence of imprisonment in the community is not eligible to earn remission, which could lead to a reduction in the sentence.

[57] In describing the nature of a conditional sentence in R. v. Proulx, 2000 SCC 5, Lamer C.J.C. wrote at para. 22, “it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.”

[58] Mr. Cumsille has a poor track record of breaching conditions imposed as part of a bail order or youth disposition. His last conviction for failing to comply was on January 18, 2017, nearly five years ago. He complied with stringent house arrest conditions from August 2018 to April 2021 with one exception. He was convicted of theft under on January 6, 2020. Since that time, however, he has connected with CAMH and made genuine efforts to deal with his opiate addiction and mental health struggles. His bail conditions have been gradually relaxed since April 2021, and he has continued to comply. In my view, his past record for breaching conditions does not make him an unsuitable candidate for a conditional sentence given his more recent conduct.

[59] There is no evidence that the community’s safety would be endangered if Mr. Cumsille served his sentence in the community.

[60] There is a practical reality that I have also considered in deciding that the remainder of Mr. Cumsille’s sentence will be served in the community. Ontario, and indeed Canada, is in the throes of the fifth wave of the COVID-19 pandemic. The number of cases in Ontario has surged to the highest point since the beginning of the pandemic in March 2020. The current Omicron variant is more contagious than the previous ones and has spread rapidly throughout the population.

[61] On the advice of public health officials, the provincial government yesterday implemented measures in an effort to blunt the transmission of this virus. These measures are intended to limit the number of persons together in an indoor space. For example, social gatherings are limited to five people indoors. Students cannot attend school in person. Restaurants are closed for indoor dining. People are being urged to limit their interactions with others. This is difficult, if not impossible to do, in the congregate setting of a prison.

[62] If I sentenced Mr. Cumsille to 2½ months to be served in prison, he would face particularly harsh conditions as correctional authorities impose restrictions in an attempt to prevent outbreaks of COVID-19. He would also face the risk of infection. Under these circumstances, to order Mr. Cumsille to serve the remaining 2½ months in a custodial setting would serve no genuine societal purpose at this time.

[63] In the circumstances of this case, the imposition of a conditional sentence strikes a balance of punitive measures to address denunciation and deterrence and restorative measures to achieve rehabilitation. It is also consistent with the principle of restraint set out in ss. 718.2 (d) and (e) of the Criminal Code.

Disposition

[64] Mr. Cumsille, after giving you credit for 14½ months, you are sentenced to a conditional sentence of 75 days.

[65] The conditions of the sentence are as follows:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so.
3. Report to your conditional sentence supervisor within two working days and thereafter as required by your conditional sentence supervisor.
4. Remain in Ontario unless you have the prior written permission from the court or the supervisor to leave the province.
5. Reside at an address approved of by your conditional sentence supervisor. Notify your supervisor in advance of any change of name or address and promptly notify your supervisor of any change in employment or occupation.
6. Co-operate with your supervisor. You must sign any releases necessary to permit your supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your supervisor on request.
7. Remain in your residence at all times except: i. for medical emergencies involving you or any member of your immediate family; ii. for going directly to and from or being at your place of employment or education, court attendances, religious services and legal or medical or dental appointments; iii. for going directly to and from and being at counselling sessions approved of by your conditional sentence supervisor; iv. for the purpose of walking your dog twice a day for 30 minutes at a time on a schedule to be approved of in advance by your supervisor; v. with the prior written approval of your supervisor, which must be carried with you during these times; vi. for four hours once per week on a day approved of by your supervisor for acquiring the necessities of life; and vii. for carrying out any legal obligations regarding compliance with this order.
8. Confirm your schedule in advance with your supervisor setting out the times for the activities in paragraph 7.
9. Present yourself at your doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with your house arrest condition.
10. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor and complete them to the satisfaction of your supervisor.
11. Sign any release of information forms necessary to enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs.
12. Do not possess any weapons as defined by the Criminal Code.

Ancillary Order

[66] I also make the following ancillary order.

[67] Mr. Cumsille is prohibited from possessing any firearm, cross‑bow, restricted weapon, ammunition, or explosive substance for ten years pursuant to s. 109(2) of the Criminal Code.

[68] I want to thank Ms. Dudding and Ms. Otter for the efficient manner in which they have conducted this case, and their skilled advocacy and thorough and helpful written materials.

Corrick J. Released: January 6, 2022