R. v. Orin Moses, 2022 ONSC 332

Court File and Parties

COURT FILE NO.: CR 19-30000051 DATE: 20220117

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Phillip Enright, for the Crown

• and -

ORIN MOSES Rob Warren and Daryl Reeve, for the Defendant

HEARD: November 4, 2021

MR. JUSTICE MICHAEL G. QUIGLEY

REASONS FOR SENTENCING DECISION

1On July 26, 2021, I found the defendant, Orin Moses, guilty of two counts of knowing possession of a loaded restricted firearm contrary to sections 95(1) and 92(1) of the Criminal Code of Canada (the "Code").

2The issue on this sentencing hearing is the fit sentence for this early middle-aged first-time offender, having regard to all the relevant circumstances.

Circumstances of the offence

3On January 24, 2018, members of the Emergency Task Force of the Toronto Police Service executed two judicially authorized warrants under the Controlled Drugs and Substances Act at two residential addresses in Scarborough, Ontario: 161 Brirnorton Dr. and 5 Watson Ave. They also executed a third warrant against a BMW automobile and its occupants.

4At the Brimorton address, they found a 9 mm Walther P38 handgun containing a magazine loaded with 7 rounds of 9 mm ammunition, with the brand name "Luger" embossed on the end of the shell casings. The firearm was located, in the same room where the defendant was found. At the defendant's residence on Watson Avenue, police located identical matching rounds of ammunition in the pocket of a sweater hanging in the closet of the bedroom that Mr. Moses shared with his common law spouse, Tanya McLean. That sweater, and an Adidas hoodie with several rounds of a different kind of ammunition in its pocket were on hangers in the middle of the closet, mixed among other clothes that Mr. Moses and Ms. McLean acknowledged that they wore regularly. Connecting the dots, the police charged Mr. Moses with two counts of illegal possession of a firearm.

5The Crown led extensive evidence to connect the defendant to the firearm. Mr. Moses testified in his defence, as did Ms. McLean. He said the firearm was not his. He said he did not know who its owner was, or who was the owner of that sweater, and had no idea how bullets matching the firearm came to be in the pocket of garments located in his bedroom closet. Ms. McLean 's evidence was similar.

6I did not believe the defence evidence, nor did it leave me in a state of reasonable doubt. The evidence of possession was almost entirely circumstantial, but I found that Mr. Moses' possession of the firearm was the only reasonable inference capable of being drawn, on the evidence that I accepted taken as a whole. I was and am satisfied of his guilt beyond a reasonable doubt. I found him guilty on both charges. My reasons for that decision can be found at 2021 ONSC 5196.

Circumstances of the offender

7Mr.Moses was born in Guyana. He has a twin-brother and younger sister. After his parents divorced and his mother relocated to Canada to live with her boyfriend, he was cared for by his maternal aunt. At the age of 9 he moved to St. Lucia to live with his father for 4-years before immigrated to Canada with his siblings to be reunited with his mother. He became a Permanent Resident in 2000.

8Mr. Moses advised that he was never a victim of mental, physical, or emotional abuse, was never neglected and was well provided for. He said he never witnessed domestic abuse, but his mother observed that his father had often used harsh corporal punishment, and that she and the children, endured "mental, physical, and emotional abuse" before she left her children in St. Lucia in the care of the father from 1993 -1997. Recently, Mr. Moses has had occasional phone conversations with his father, but not surprisingly, given the history of domestic abuse, the relationship is not close.

9The family experienced significant financial strain. Mr. Moses felt the need to step-up as an adult and help his mother run the household. There were many times that his family was evicted from their home due to financial circumstances, but he said this drove him to work harder to help his mother provide for the family. He described sharing a positive and close relationship with his mother, but explained he is also very close to his twin-brother who works in construction. The brother has had trouble with the law in the past but has now "settled into life" as a father. Mr. Moses also has an 11-year-old half-brother and 8-year-old half-sister, both of whom reside in St. Lucia. He has spoken to his half-siblings over the phone but described his relationship with his father as "not close."

10Once in Canada, Mr. Moses was raised by his mother and stepfather, primarily in East York. He moved out to Scarborough with his brother when he was 18. He now resides in Pickering with Ms. McLean, their 5-year-old daughter, and his 12-year-old stepdaughter. He also shares a 10-year-old son with his former common-law wife. He has been living common-law with Ms. McLean for the last 7-years.

11Mr. Moses' son resides with his mother in Pickering, but they visit every weekend and the soon looks to him to serve a positive father role. Ms. McLean appears to be a positive influence on Mr. Moses. They plan to marry soon and are trying to have another child. Mr. Moses' mother describes him as a "very good father."

12Mr. Moses has never displayed any learning disabilities or behavioural issues. He completed a college diploma in culinary arts but has worked in various positions since he was 19, primarily in shipping and receiving. For the last four years he has been continuously employed with a big box store on the night shift from 11:00 pm to 7:00 am. He carries and meets his financial obligation to provide for his family, including paying for the home they live in and the second-hand vehicle they recently purchased.

13Mr. Moses started to consume alcohol at 17 and marijuana at 19. He smoked marijuana heavily while grieving for the loss of his murdered cousin some years ago, but now smokes only "occasionally." He denied ever trafficking drugs for a financial gain and/or having any addictions to substances. He was at one time placed on probation for carrying a concealed weapon, but that was over 22 years ago, and he has not run afoul of the law in any way since then.

14The author of the PSR reported that Mr. Moses was forthcoming and polite during their interactions. However, Mr. Moses was unable to provide supporting documentation (college diploma, pay stub, volunteer letter) in the short time frame in which the PSR report was completed.

15As for the offences, Mr. Moses essentially claims to have been in the wrong place at the wrong time. He was at a friend's house with four other friends when the house was "raided", and a firearm was recovered. All parties were charged, but charges were evidently dropped against the others.

16Mr. Moses admitted that it was not a good crowd. He claims to have had "a reality check" since then, and no longer associates with those that were in the home on the day of the arrest. They were long term friends whom he met within the neighbourhood, and with whom he shared a 15-year friendship, but he stated that he felt "peer pressure" into going to the house that day. He believes one of those present was the "confidential informant" who may have set him up and provided information to the police that resulted in the search warrant. Mr. Moses does not take responsibility for possession of the firearm. His mother was "shocked" that he was the person charged with possession of the firearm.

17The PSR author concluded the report by expressing his opinion that Mr. Moses' strengths include being gainfully employed, having supportive family dynamics, and not having reoffended while on bail. The PSR author further believes that Mr. Moses can not only continue his pro-social lifestyle, but also incorporate life skills counselling which can benefit him and prevent him from committing any further crimes. He expresses his opinion that Mr. Moses is a suitable candidate for a term of community supervision.

18Finally, while the PSR reports that Mr. Moses is a Canadian citizen, this is not correct. In fact, he is a landed immigrant and now a permanent resident of Canada but has not yet obtained citizenship. As such, as discussed further below, the sentence imposed upon Mr. Moses may have significant impact of his legal status in Canada.

Positions of the parties

19Mr. Moses has been found guilty of 2 counts involving the possession of a loaded 9 mm restricted handgun contrary to ss. 95 and 92 of the Criminal Code. The first prohibits possession of a loaded firearm, and the second prohibits possession of a firearm knowing its possession is unauthorized. Both provisions carry a maximum penalty of 10 years imprisonment.

20Crown counsel observes that case authority is divided on whether the rule against multiple convictions in R. v. Kienapple, forecloses convictions on both counts.¹ Personally, as I have found in other cases, I favour the approach of Clark J. in R. v. Stephens that while Kienapple will apply to preclude multiple convictions as between certain similar firearm offences where the delict and factual matrix are the same, that is not the case as between ss.92(1) and ss.95(1).² However, in any event, since the Crown acknowledges that Mr. Moses' possession of the Walther P38 handgun occurred during one transaction, it acknowledges that any sentence imposed on the section 92 count should run concurrent to the sentence imposed on the more serious section 95 offence.

21Crown counsel seeks a global prison sentence in the range of 3 to 4 years on the basis that the predominant principles in cases involving firearms are deterrence and denunciation. Mr. Moses spent 13 days in custody before being released on bail on February 5, 2018. In advancing this position, Crown counsel acknowledges that Mr. Moses is a first offender, and that the defendant made reasonable admissions of fact during the trial which contributed to an efficient use of scarce Court resources.

22In addition to that range of imprisonment, the Crown seeks the imposition of 3 ancillary orders upon sentencing:

(i) A prohibition order under section 109 of the Code, for life; (ii) A DNA data banking order under section 487.051(3) of the Code; and (iii) An Order for Forfeiture of the seized Walther P38 handgun, magazine, and assorted ammunition under section 491 of the Code.

23Defence counsel argues that the appropriate global sentence for these offences is two-years less one day. If I agree that a sentence of two years less a day is appropriate, Mr. Moses asks me to consider allowing him to serve that sentence as a conditional sentence in the community.

Sentencing Principles

24Sections 718, 718.1, and 718.2 of the Code describe the purposes of sentencing and the principles that are to apply in determining a proper sentence. Those provisions call upon me to place appropriate emphasis on general and specific deterrence and denunciation in addition to rehabilitation of the offender. The goal is to craft a sentence that will contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

25Section 718.1 also requires that a sentence be proportionate. That central principle requires that the sentence speak out against the offence, but not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. I must weigh the objectives in the particular circumstances of the case and take account of the relative importance of mitigating or aggravating factors in determining where to properly situate the particular offender on the scale of appropriate sentences for similar offences. The sentence imposed must also be consistent with sentences imposed for similar offences.³

26Possession of a firearm was previously subject to a mandatory minimum punishment of three years in prison under s. 95(2) of the Code, but this mandatory minimum was declared constitutionally invalid by the Supreme Court of Canada in R. v. Nur.⁴

27Nonetheless, Nur also demonstrates that denunciation and deterrence assume a greater importance in the sentencing of crimes involving the possession of firearms and that penitentiary sentences would generally be appropriate for offences at the "true crime end of the s.95 spectrum of offences." As Doherty J.A. put it at paras. 52 and 206 of the Court of Appeal decision:

[52] There is no doubt that the vast majority of persons charged under s.95 fall at the true crime end of the spectrum. Most guns that are the subject matter of a s.95 charge exist entirely outside of the regulatory scheme established under the Firearms Act. Most people charged under s.95 would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore , the vast majority of s.95 charges arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons.

[206] Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s.95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation. Thus, as outlined earlier, and regardless of the three-year minimum

penalty, this appellant, despite the mitigating factors, could well have received a sentence of three years. [My emphasis]

28The very recent decision by the Court of Appeal in R. v. Morris⁵ confirms that while realistic rehabilitative prospects cannot be ignored, they are subordinate to the primacy that deterrence and denunciation must take in all cases involving illegal handguns. That direction flows consistently through the Court of Appeal's earlier rulings in Danvers,⁶ Nur,⁷ Marshall⁸ and ReicP,⁹ and numerous decisions of this Court. Crown counsel asserts that the decision in Marshall is similar to this case. There, the Court of Appeal affirmed a 3½ year sentence for a 23-year-old first offender for possession of a loaded handgun secreted in a bag located inside the closet of an apartment.

29However, since Nur, a broad range of sentences have been imposed for possession of a loaded firearm, both above and below the previous minimum, demonstrating that a penitentiary sentence may not always be the rule. A penitentiary sentence may be excessive in the case of an offender with no previous firearm convictions, and no prior record, and an absence of other aggravating factors beyond the simple possession itself. That said, penitentiary sentences will be more common for most firearm possession offences, especially in the presence of aggravating factors of the type described by Doherty J.A., but a high-end reformatory sentence at the lower end of the scale, will not be found to be unfit, depending on the circumstances.

30Thus, for example, in R. v. Filian-Jimenez¹⁰ the Court of Appeal upheld an 18-month sentence, recognizing that the trial judge identified factors that in his view justified imposing a relatively lenient sentence. These included that the offender had repudiated his membership in a gang, entered an early guilty plea, was engaged in full time employment, and had fundamentally changed his lifestyle. He possessed the gun for defensive reasons based on prior occurrences and his fear for the safety of his mother and his girlfriend with whom he shared the house where the firearm was located. Importantly, the trial judge accepted that he did not have the weapon for any other illegal or dangerous purpose. The Court concluded that the trial judge 's assessment of the offender and his prospects were entitled to deference. While it was an admittedly low sentence, it was not considered to be manifestly unfit.

31In my view, as I will explain below, this is the same kind of reasoning that calls for a more lenient sentence for Mr. Moses. Here, unlike the circumstances of the offender in Filian-Jimenez, there was no evidence of criminal antecedents or associations with gang membership in this case that Mr. Moses needed to repudiate. There was no evidence of such associations or membership. There was no evidence of ownership of the firearm in connection with any purpose dangerous to the public peace, apart from the possession of the firearm itself. However, Mr. Moses is also engaged in full time employment, is a dedicated father, and is providing the sole financial support for his family. His course of conduct since this occurrence, including his continuing adherence to the terms of his bail release, show a commitment to a pro-social lifestyle in the direction of being a law abiding and family supporting permanent resident, and away from further conflicts with the justice system.

32In the end, R. v. Smickle¹¹ confirms that most s.95 offences will attract a penitentiary term, even for first offenders. However, it also shows that even "less serious" versions of the crime than are typically committed "will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders." In my view, for the reasons set out below, this is a case where a more lenient sentence near the maximum reformatory sentence, is appropriate.

Aggravating, mitigating and other relevant factors

33Both Crown and defence counsel agree that in Mr. Moses' unusual case, many of the usual aggravating factors that are typically, or at least frequently present in gun possession cases, are entirely absent:

(i) There is no evidence that Mr. Moses was engaged in other criminal activity at the time of his arrest, or that he had previously done so; (ii) Mr. Moses is not alleged to have possessed the firearm in conjunction with participation in the drug trade; (iii) Mr. Moses did not possess the firearm in a public place; and (iv) There is no evidence that Mr. Moses is in any way affiliated with a gang or other criminal elements or activities, now or in the past.

34The main aggravating factor is plainly and simply that he was found to be in possession of a restricted firearm, and that firearms continue to be the scourge of urban crime in this city and elsewhere across the country. The presence of the gun alone is the aggravating factor.

35On the other hand, there are important mitigating factors present in this case:

(i) While Mr. Moses did not plead guilty, there was a significant legal issue to be explored in his case given the entirely circumstantial nature of the evidence. Nonetheless, defence counsel on his behalf, made reasonable concessions, worked collaboratively with Crown counsel, and assisted in narrowing the focus, to ensure a brief and efficient trial; (ii) The Crown acknowledges that Mr. Moses is to be treated as a first offender; (iii) Mr. Moses came to Canada from Guyana in about 1996, when he was a teenager, and has been a permanent resident of Canada for almost 25 years, without any recorded difficulty or conflict with the law; (iv) Mr. Moses pursued an education, completed high school (Marc Garneau Collegiate Institute) and completed a college education, receiving a diploma in culinary arts from Centennial College; (v) Mr. Moses has a strong and a stable family life. He has been in a common law relationship with Ms.McLean for about 7 years, and lives with her along with their 5-year-old daughter and his 12-year-old stepdaughter. He also has an 11-year-old son from a previous relationship, with whom he visits every weekend; (vi) Mr. Moses is described by his mother and his partner as a "very good father" and as a "really good father, he's really present"; and (vii) Mr. Moses is fully employed. He is currently working the night shift at a local Walmart, to continue to provide for his family. He obtained this employment after he was charged with these offences. He has maintained this employment steadily, and without incident. His dedication to the economic well-being of his family is evidenced by his and Ms. McLean's recently purchase of a home in Pickering, for which he continues to make regular mortgage payments from his employment income. As well, he makes monthly payments for a pre-owned vehicle which he purchased.

36There remains one other very significant factor at play here on this sentencing. Mr. Moses is a permanent resident of Canada, but not a Canadian citizen. As such, the finding of guilt and his convictions alone on these charges will result in Mr. Moses being deemed to be "inadmissible to Canada."

37Under s. 36(1) of the Immigration and Refugee Protection Act ("IRPA"), a permanent resident or foreign national is deemed inadmissible to Canada on the grounds of "serious criminality'', where they have been convicted of an offence punishable by a maximum term of imprisonment of at least 10 years or they are sentenced to more than six months of imprisonment. Both the s. 95 and s. 92 offences carry a maximum penalty of 10 years imprisonment.

38The consequences of sentencing are a final and blunt instrument, because under s. 64 of IRPA an individual deemed inadmissible does not have a right to appeal that decision if they have been sentenced to a period of incarceration of at least six months.

39In the result, Mr. Moses will be deemed inadmissible to Canada owing to his conviction. He would have no right to appeal any deportation order that might be made against him. There does remain some residual discretion on the part of immigration officers and the Minister in referring the matter to the Immigration Division, but I was advised by counsel that once Mr. Moses has served his sentence for these offences, the practical reality is that he will be deported from Canada.

40The only exceptions to that strict reality arise should he be sentenced to a term of imprisonment of less than six months, or a sentence of two years less one day that is ordered to be served conditionally in the community under s. 742 of the Code. That is why defence counsel advocate here for Mr. Moses to receive a conditional sentence of two years less one day. The legal reason that this result would be different from an immigration perspective, is because the Supreme Court of Canada held in R. v. Tran¹² that a conditional sentence imposed under section 742 of the Code is not a "term of imprisonment" for the purposes of s. 36 and 64 of IRPA.

41There is no guarantee that Mr. Moses would or might succeed in appealing any deportation order made against him, whether now or at any unknown time in the future. But if he were to receive a sentence of two-years less one day of imprisonment and was ordered to serve that sentence in the community under a strict Conditional Sentence Order, it would still serve to punish him at the upper level range of possible reformatory sentences, while also preserving his right to be heard, a foundational right enjoyed by all persons in Canada, whether citizens or not. It would allow him to be heard because he would retain his legal right to appeal any deportation order made against him. That is the background that now calls upon me to consider whether a conditional sentence is available in this case, and even if it is, whether it would be fit having regard to all the circumstances.

Analysis

42The sentencing process is fact specific. The appropriate sentence for any offender always depends on the unique circumstances of the case before the court. Caselaw will always be cited by both Crown and defence counsel to show that certain ranges of sentence have been imposed in other cases. But in a gun possession case like this, there are almost always factors present that will allow the cases cited to be distinguished from the circumstances of the particular offender: for example, the presence of a more or less severe criminal record, or if the possession of the firearm was in connection with or in furtherance of some other proposed crime, as compared to almost mere happenstance possession, unconnected to anything that itself is more aggravating.

43After considering the principles outlined in the Code that form the foundation for sentencing, and the case law that requires that I consider deterrence and denunciation first and foremost in imposing sentence in a case like this, I nevertheless find myself coming back to a simple but instructive caution, that justice demands that no offender should ever be sentenced to one day more than he or she deserves.

44It may seem trite, but it is not. It was an admonition given to me as I faced my first sentencing 17 years ago, by a very respected senior judicial colleague who had been engaged in criminal law for his entire professional life. It is profound in its simplicity and founded in the individualized focus of all sentencing theory. It calls out to me in this case because there is an almost complete absence of aggravating circumstances, and there is evidence, not only of the prospect of rehabilitation, based on the evidence advanced on the sentencing, but arguably, that Mr. Moses has already progressed well along that road.

45Even though there is no longer a mandatory minimum sentence associated with these offences, Crown counsel argues that the predominant principles of deterrence and denunciation in cases involving firearms must call for a prison sentence of at least three years. He takes the position that a lesser sentence of two years less a day is inadequate, and in his submission unfit.

46I find, however, in the circumstances of this case with the absence of typical aggravating factors, that a lesser more lenient sentence is called for in all the circumstances. It must still be denunciatory and directed towards deterrence, but it needs to be proportionate. After weighing all the factors, both aggravating and mitigating, I have concluded that the principles of denunciation and deterrence and the interests of justice in this case would be served by the imposition on Mr. Moses of a reformatory sentence of two years less one day.

47Having found that the fit sentence in this particular case is a reformatory sentence of two years less one day, I turn finally to consider the request and submission of defence counsel that Mr. Moses be ordered to serve that sentence under a restrictive CSO in the community.

48First, clearly a conditional sentence is available for these offences under s. 742.1 of the Code because there is no longer a minimum term of imprisonment for these offences, the maximum term is not 14 years or life, the offence did not involve the use of a weapon, and it is not one of the exceptions under subsection 742.l(f).

49Moreover, there is presently no appellate court decision from across Canada or the Supreme Court that has ruled, as far as counsel or I am aware, that there are no circumstances where the imposition of a conditional sentence might not be appropriate. I note as well that there are cases that have recognized that a conditional sentence can be appropriate to be imposed in gun possession cases: See R. v. Fabbro, 2021 ONCA 494; R. v. Hassan, 2017 ONSC 4570 and R. v. Ulmer, 2020 ABQB 393. However, the circumstances of those cases are somewhat different, from this case.

50In Fabbro, the Court of Appeal imposed a conditional sentence after finding that the sentencing judge had erred in giving undue weight to denunciation and deterrence in imposing a custodial sentence. There was no evidence of any danger to the public from the offender's possession of the firearm. Sadly, the offender had very significant mental and substance abuse issues but had been unable to obtain treatment despite his cries for help. He possessed the firearm solely for the purpose of committing suicide. He was apprehended before he was able to carry out his plan. The Court was plainly motivated by the need for treatment and the prospects of rehabilitation in imposing that conditional sentence.

51In R. v. Hassan, after officers pulled over a vehicle in Toronto with an expired validation sticker on the rear plate, when Mr. Hassan was told he could leave, he was hesitant, because he was in possession of a prohibited firearm and six 9 mm bullets. Backhouse J. correctly recognized the predominant principles, but nevertheless imposed a conditional sentence, based on the strong and persuasive evidence of Mr. Hassan’s rehabilitation and the number of very experienced people who testified that he is not a danger to the public and is very unlikely to reoffend. Moreover, Her Honour found the distinguishing feature to be that Mr. Hassan had been able to learn from his past experiences and had become very active in the community act as a positive role model for at risk youth.

52In R. v. Ulmer, the Alberta Court of Queens Bench imposed a conditional sentence on a youthful offender found in possession of a loaded firearm in a, notwithstanding a prior record of failure to comply with bail terms, but in that case, Crown counsel only sought a sentence of 18 months.

53In the present case, Mr. Moses does not have criminal antecedents that would create a danger to the public if he were to serve his sentence in the community. In fact, he has been out on bail in the community since February 5, 2018 (approximately 3 1/2 years) without incident.

54Neither is there any indication that Mr. Moses routinely possesses firearms or engages in criminal activity. He reports that he has disassociated himself from the friends that were in the home with him at the time of the raid as he perceives them as "not a good crowd". The risk that Mr. Moses will re-offend is minimal. It also bears repeating that Mr. Moses' offence did not include the use of the firearm in conjunction with other illegal activity or in public places. Mr. Moses is not a violent offender, and the risk of damage should he re-offend is minimal.

55Not only does a conditional sentence in this case maintain Mr. Moses' right to appeal a removal order that may be made against him, but of equal importance it would also allow him to remain in the community working at his job to support his family, and to continue being the "really present" father that Ms. McLean describes him to be.

56Chief Justice Lamer was clear in R. v. Proulx¹³ that the imposition of a conditional sentence can also satisfy the principles of denunciation and deterrence, in this or in other cases. At paras 22 and 35-36, he addressed the issue squarely:

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, 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. It is this punitive aspect that distinguishes the conditional sentence from probation, and it is to this issue that I now turn.

35 In light of the foregoing, it is clear that Parliament intended a conditional sentence to be more punitive than a suspended sentence with probation,

notwithstanding the similarities between the two sanctions in respect of their rehabilitative purposes. I agree wholeheartedly with Vancise J.A., who, dissenting in R. v. McDonald (1997), 1997 9710 (SK CA), 113 C.C.C. (3d) 418 (Sask.

C.A.), stated, at p. 443, that conditional sentences were designed to " permit the defendant to avoid imprisonment but not to avoid punishment ".

36 Accordingly, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception. As the Minister of Justice said during the second reading of Bill C-41 (House of Commons Debates, supra, at p. 5873), " [t]his sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls" [My emphasis]

57These words make plain, however, that sentencing judges must always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise have been sent to jail. That condition certainly applies to Mr. Moses.

58The conditions of the sentence are not meant to be lenient. Mr. Moses can be ordered to abide by a strict house arrest or curfew with limited exceptions for employment and family responsibilities. I accept that Mr. Moses will abide by any conditions the court sees fit to impose, and he takes no issue with the conditions recommended by the probation officer in the pre-sentence report, though in my view, somewhat stricter restrictions on his liberty must be imposed to meet the requirements of denunciation and deterrence.

59In the circumstances of this case, where the Court is sentencing a first-time offender, with a stable family life and work background, and especially in consideration of the severe immigration consequences that flow from a sentence of actual incarceration for both Mr. Moses and his family, I find that a sentence of imprisonment of two years, less one day, to be served in the community under a Conditional Sentence Order, to be followed by on year of probation, is the appropriate disposition in this matter for this offender.

Ancillary Orders

60The Crown seeks a DNA order pursuant to s. 487.051(3) of the Criminal Code. The defence does not oppose the order. I conclude that it would be in the best interests of the administration of justice to issue such an order, given the nature of the offences even though Mr. Moses has no prior criminal record.

61The Crown also seeks a lifetime firearms prohibition order pursuant to s. 109 of the Criminal Code. The defence made no submissions to the contrary. This order is appropriate in these circumstances, in my view.

62Finally, a Forfeiture Order will go relative to the seized Walther P38 handgun, magazine, and assorted ammunition under section 491 of the Code.

Final Decision

63In determining the appropriate length of the conditional sentence, I take into account that Mr. Moses spent the equivalent of 22 days in pre-trial detention and almost three and a half years on strict bail conditions. I find a conditional sentence of 2 years, less one day to be a fit and just sentence, to be followed by one year of probation on the usual terms. This global sentence applies concurrently to Counts 1 and 2.

64Section 742.3 of the Code enumerates both compulsory and optional conditions in a conditional sentence order. I would impose the following conditions:

1. Mandatory Terms (i) Keep the peace and be of good behavior. (ii) Appear before the Court when required to do so by the Court. (iii) Report in person within 2 working days to a supervisor and thereafter when required by the supervisor and in the manner directed by the supervisor. (iv) Remain in the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor. (v) Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation.

2. Specific Conditions (vi) During the entire term of the Conditional Sentence Order, Mr. Moses shall not be outside his residence except:

• To attend school
• To attend work
• To perform community service
• To attend medical appointments or medical emergencies involving himself or members of his family
• To shop for necessities for one four-hour period per week, or two two-hour periods, as his CSO Supervisor shall direct
• Any other reason deemed appropriate by his Supervisor
• All exceptions above include travel immediately to and from. All exceptions must be identified in a written letter of permission approved by his Supervisor (except emergencies), and

7. Mr. Moses is to perform 200 hours of community service at a rate and schedule approved by his supervisor.

Mr.Moses, stand up.

65Mr. Moses, these are serious crimes. The scourge of handguns and handgun related violence in urban Canada must be stopped. Nevertheless, you are youthful, even if no longer a young offender. I am also persuaded, as you have heard, that the realistic prospects of your rehabilitation and the significant potential damage that would be caused for your family were you to be deported, in these quite unique circumstances, call for a sentence at the lower end of the appropriate range. On this basis, I hereby sentence you to a sentence of two years less one day, to be served conditionally within the community under s. 742.1 of the Code, in compliance with all the terms enumerated above.

66Mr. Moses, if you have listened to what I have said, you will well understand that you might easily have been given a sentence that was considerably more onerous for this gun possession offence. However, in all of your circumstances, I find this to be the fit sentence for you in the circumstances of this case. While this is not a lenient sentence and the terms you must abide by deprive you of your liberties, as would any custodial sentence, you have been given a break today from the sentence that might easily otherwise have been imposed.

67I wish you and your family well in future. Do not stray from the road of living a lawful life towards which you appear to have redirected yourself. Be the good father and spouse that your supporters believe you can and will be. But I hope you will understand that should you not abide by my admonishment, and return before our courts in the future, you need to understand that the likelihood of you being granted this leniency is remote.

Michael G. Quigley J.

Footnotes

1. 1R. v. Kienapple, 1974 14 (SCC), [1975] 1 SCR 729. The conflicting cases are: R. v. Stephens, [2009] O.J. No. 6102; R. v. Le, 2014 ONSC 4288, [2014] O.J.No. 3395; R. v. Brown, 2014 ONSC 4230; R. v. Mahamat-Zene, 2018 ONSC 1050; and, R v. Mansingh, 2016 ONSC 94.
2. 2See K. Campbell J. in R. v. Le, above, at paras. 17-18.
3. 3R. v. Nasogaluak, 2010 SCC 6 at headnote.
4. 42015 SCC 15
5. 5[2021] O.J. No. 5108
6. 6(2005) 30044 (ON CA), O.J. No. 3532
7. 72013 ONCA 677; aff d (2015) 2015 SCC 15, S.C.J. No. 15
8. 8[2015] O.J. No. 5348
9. 92016 ONCA 524
10. 102014 ONCA 601 at para. 2. See also R. v. Caidenhead, [2015] O.J. No. 3125 (ONSC) at paras 13-14 and 28 (18 months); R. v. Reyes, 2018 ONCJ 185 at paras 43-44 (Two years less a day); and R. v. Mohamed, 2018 ONCJ 289 at paras. 6-7 and 11 (30 months).
11. 112014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19. See also: R. v. Nur, at paras. 107-109, 206, affirming on this point: 2011 ONSC 4874, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at paras. 41-45, 49-52, 70, 145-149; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710 at paras. 9, 20-25; R. v. Husaini, 2013 ONSC 7737, [2013] O.J. No. 5832, at paras. 24-29; R. v. Carrol, 2014 ONSC 2063, [2014] O.J. No. 1749, at paras. 21-28.
12. 12R. v. Tran, 2017 SCC 50 at paras 29-34.
13. 132000 SCC 5.