R. v. Tago, 2022 ONSC 1253

COURT FILE NO.: CR-21-300000118-0000 DATE: 20220223 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Kathleen Farrell for the Crown

• and -

MAGEED BEDAWI TAGO Magda Wyszomierska for Mr. Tago

HEARD: November 9, 2021 and January 20, 2022.

REASONS FOR SENTENCE

CORRICK J.

Introduction

1On November 9, 2021, Mr. Tago pleaded guilty to possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, carrying a firearm in a careless manner, contrary to s. 86(1) of the Criminal Code, and fail to comply with the conditions of a release order, contrary to s. 145(4)(a) of the Criminal Code.

2The matter was adjourned to January 20, 2022 to allow defence counsel to obtain records from the detention centre where Mr. Tago had been incarcerated. Mr. Tago appears before me today for sentencing.

Positions of the Parties

3The parties agree that, but for the mitigating circumstances of harsh pre-sentence custody conditions and restrictive bail conditions, the appropriate sentence in this case would be two years imprisonment. Ms. Farrell, on behalf of the Crown, submits that 22 months is the fit disposition once the mitigating circumstances are taken into account. Ms. Wyszomierska, on behalf of Mr. Tago, submits that 15 months is the appropriate sentence.

4The parties agree that Mr. Tago is entitled to be credited with 210 days or seven months for the 140 days he spent in pre-sentence custody in accordance with R. v. Summers, 2014 SCC 26.

5Lastly, both counsel agree that the following ancillary orders should be imposed:

a. an order pursuant to s. 487.051(3)(b) of the Criminal Code that Mr. Tago provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and

b. an order pursuant to s. 109 of the Criminal Code for life.

Circumstances of the Offence

6The offences arise from events that occurred on June 5, 2020 near a Toronto Community Housing complex in Scarborough. Shortly after 9:30 p.m. police officers approached a group of three men who were gathered at a basketball court. One of the officers recognized Mr. Tago. After some checking of Mr. Tago’s name in police databases, the officer discovered that Mr. Tago was bound by a condition of a recognizance to be in his residence between 8:00 p.m. and 6:00 a.m. When the officer took hold of Mr. Tago’s arm to arrest him, Mr. Tago fled.

7Several police officers chased Mr. Tago on foot. He was ultimately captured when he entered a subway station. During the pursuit, Mr. Tago shed a red hooded sweatshirt he was wearing and a red satchel that he had slung across his chest.

8Using a tracking dog, police retraced the route Mr. Tago had taken. The dog located Mr. Tago’s red sweatshirt and satchel at the rear of a home. Police found a loaded handgun inside the satchel.

9On November 12, 2019, Mr. Tago was released on a recognizance on charges, including robbery with a firearm. One of the conditions of the recognizance prohibited Mr. Tago from possessing any weapon as defined in the Criminal Code.

Circumstances of the Offender

10Mr. Tago is 21 years old. He was born in Toronto in 2000, the year his parents and three older brothers emigrated to Canada from Sudan. He graduated from high school in 2018. Following high school, he attended an adult education program to try to raise his grades before applying to the social work program at York University. Obtaining a university degree in social work remains his goal today.

11Mr. Tago is industrious. While in high school, he customized t-shirts and shoes and sold them through social media. He also began working at the West Scarborough Boys and Girls Club, and in 2018 was promoted to lead staff in charge of after-school programming for children aged five to eleven years. He maintained that employment until the COVID pandemic caused the program to shut down. He returned to work there full-time in August 2021 as a program co-ordinator.

12Mr. Tago has also worked as an instructor at a climbing academy and doing clerical work in his father’s law office.

13In addition to being industrious, Mr. Tago is a talented spoken word artist. His talent has been showcased at the Art Gallery of Ontario and York University.

14When Mr. Tago committed these offences, he was a nineteen-year-old first offender. As I indicated he was facing charges at the time. On January 27, 2021, Mr. Tago was convicted of robbery and sentenced to probation for one year after being credited with the equivalent of nine months in custody.

15While in custody awaiting trial, Mr. Tago wanted to continue to upgrade his education, but this was not available to him due to COVID. He did complete the following six rehabilitative programs:

• Managing Stress
• Understanding Feelings
• Thoughts to Actions
• Substance Abuse
• Anger Management
• Use of Leisure Time

Governing Sentencing Principles

16In determining the fit sentence for Mr. Tago, I am governed by the sentencing principles set out in the Criminal Code.

17The 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.

18The 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.

19I 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.

Sentences Imposed in Other Cases

20To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Chief Justice Lamer’s caution that, “… the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), [1996] 1 SCR 500, at para. 92.

21However, the facts of this case are very similar to those in R. v. Nur, 2015 SCC 15, a case that was ultimately considered by the Supreme Court of Canada. In Nur, a 19-year-old first offender was convicted of possession of a loaded handgun. While fleeing on foot from the police, Mr. Nur tossed the handgun into a townhouse complex. Unlike Mr. Tago, he was not on bail at the time. Chief Justice McLachlan described Mr. Nur in this way at para. 21:

Nur comes from a supportive, law-abiding family who came to Canada as refugees. At the time of the offence, he was 19 and attending high school. He was performing well and hoped to eventually attend university. He had worked a number of part-time jobs and volunteered in the community.

22This description nearly mirrors Mr. Tago’s personal circumstances. The Supreme Court of Canada upheld the 40-month sentence imposed on Mr. Nur by the trial judge.

23The Court of Appeal in R. v. Marshall, 2015 ONCA 692 upheld a 3½ year sentence imposed on a first offender who was 19 years old at the time of the offence. The offender had positive rehabilitative prospects like Mr. Tago and was on bail. He admitted to being in possession of the loaded handgun while dealing drugs.

24Finally, the Court of Appeal considered the issue of a fit sentence for possession of a loaded firearm in the case of R. v. Smickle, 2014 ONCA 49. Mr. Smickle was alone in his cousin’s apartment posing with a loaded handgun to take a photograph for his Facebook page. Police entered the apartment by force to execute a search warrant and found Mr. Smickle with the firearm in his hand. Mr. Smickle was a 27-year-old first offender who was employed. He had a positive pre-sentence report and had been living a law-abiding lifestyle since the commission of the offence.

25Justice Doherty, speaking for the court, made it clear that denunciation is of paramount importance in fashioning a fit sentence for the possession of a loaded firearm and that a penitentiary term will be called for even for a first offender.

26The 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.

27No matter what the aggravating or mitigating factors are in any one case, the jurisprudence is clear that offences involving the possession of illegal handguns in a true crime context merit sentences that emphasize deterrence, both general and specific, and denunciation.

Aggravating and Mitigating Circumstances

28I turn now to consider the aggravating and mitigating circumstances.

29First the aggravating circumstances. The circumstances in which Mr. Tago possessed this firearm are very serious. He was in a public place near two high-rise residential apartment buildings. When he fled from the police, he tossed the firearm into a backyard where it could have been found by anyone, endangering the lives of people in the community. He was on bail at the time and was in breach of his curfew condition when he was arrested. Although there is no evidence before me to explain Mr. Tago’s possession of this firearm, loaded handguns in the hands of unlicensed people have only one purpose – to maim or kill people.

30In mitigation, Mr. Tago has excellent rehabilitative prospects. He is industrious, ambitious, and talented. He is also very young. He pleaded guilty to these offences saving weeks of court time. This is particularly significant now given the backlog of criminal trials in Toronto that has developed over the course of the pandemic.

31Mr. Tago has experienced very difficult conditions while in pre-sentence custody. He was in custody at the Toronto East Detention Centre between June 8, 2020 and March 26, 2021 on these charges. Records from the detention centre indicate that he was subjected to full or partial lockdowns for 54 days. Restrictive lockdown conditions put in place by prison authorities to prevent COVID-19 outbreaks included the cancellation of rehabilitative programs and family visits for Mr. Tago, and more time isolated in his cell.

32Mr. Tago’s affidavit described conditions during lockdown periods. He was often unable to shower or use the telephone to call his family. He was unable to use a washroom outside of his cell so had no privacy when using the toilet. For 54 days, he was housed in a cell with two other inmates, requiring one of them to sleep on the floor. Mr. Tago is Muslim. He was unable to perform his sunrise prayer if someone was sleeping on the floor, so he chose to sleep on the floor for approximately 40 nights.

33During COVID, prison conditions have been harsher, and thus more punitive. Detainees are forced to be in congregate settings and have no ability to control their surroundings or the people in them. The toll, psychological and physical, that the pandemic has taken on everyone is more acutely felt by detainees in these conditions and is a factor to consider in mitigation of sentence.

34These conditions are beyond the restrictive conditions accounted for by R. v. Summers, and I have considered them in determining the appropriate sentence: R. v. Bristol, 2021 ONCA 599, at para. 11, R. v. Morgan, 2020 ONCA 279.

35Mr. Tago was released from custody on a recognizance with strict house arrest conditions on March 27, 2021. He was not able to leave his residence unless he was in the presence of one of his sureties. The restrictions were lifted somewhat on June 7, 2020, when he was permitted to return to work at the Boys and Girls Club of West Scarborough, and again on December 1, 2021, to permit him to work in his father’s office.

36These conditions were imposed on Mr. Tago at a time when he was presumed innocent and are relevant to mitigate his sentence: R. v. Downes, 2006 CarswellOnt 778.

37Ms. Wyszomierska submits that the court ought to consider a period of nine months in mitigation of sentence to reflect the harsh pre-sentence prison conditions Mr. Tago endured and the restrictive bail conditions to which he was subjected.

Determination of a Fit Sentence

38Mr. Tago’s crimes require the imposition of a sentence that gives effect to the principles of denunciation and deterrence. However, Mr. Tago’s good rehabilitative potential and youth cannot be overlooked. In my view, the range of sentence for the possession of the loaded firearm offence alone committed by an offender in Mr. Tago’s circumstances is between 36 and 40 months in prison.

39Ms. Farrell’s submission that a sentence of 22 months reflects the mitigating circumstances of this case, including the harsh pre-sentence conditions, restrictive bail conditions, Mr. Tago’s guilty plea and his rehabilitative potential is a generous one.

40A sentence of 15 months before the deduction of pre-sentence custody as suggested by Ms. Wyszomierska, is an unfit sentence in the circumstances of this case. As Justice Doherty wrote in R. v. Marshall, 2021 ONCA 344, at para. 52, “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.”

41Gun crime continues to be a scourge in this city. It poses a serious risk to the safety and security of all residents of Toronto. People who possess illegal handguns, particularly loaded ones, can expect to receive weighty sentences.

42I have considered the gravity of the offences, the responsibility of Mr. Tago, and the principles of deterrence, both general and specific, denunciation, rehabilitation and restraint and have determined that a fit sentence in total is 22 months.

Credit for Pre-Sentence Custody

43As I indicated, counsel agree that Mr. Tago is entitled to credit of seven months for the time he spent in pre-sentence custody. His sentence will therefore be reduced by seven months, leaving him with a total of 15 months left to serve.

44Mr. Tago will also be placed on probation for a period of two years. He will be required to comply with the statutory conditions as well as a condition that he not possess any weapons as defined in the Criminal Code.

45To be clear, the custodial portion of the sentence will be apportioned as follows:

Count 1 – 22 months in custody. Credit of seven months for the 140 days of pre-sentence custody, leaving 15 months left to be served. Count 6 – 12 months in custody concurrent. Count 8 – 30 days in custody concurrent.

Ancillary Orders

46I also make the following ancillary orders:

1. an order pursuant to s. 487.051(3)(b) of the Criminal Code that Mr. Tago provide a sample of a bodily substance for the purpose of forensic DNA analysis and storage in the national DNA database; and
2. an order pursuant to s. 109 of the Criminal Code for life.

Corrick J.