PETERBOROUGH COURT FILE NOS.: CR-19-1550 CR-20-3054
DATE: 2022 06 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Kevin Doyle, for the Crown
– and –
JAIDEN JEFFERY
Allison Craig, for the Defendant Jaiden Jeffery
– and –
JOSHUA DACOSTA
Barry Fox, for the Defendant Joshua DaCosta
Defendants
HEARD: May 19, 2022
REASONS FOR SENTENCE
LEIBOVICH J.
[1] Mr. Jeffery and Mr. DaCosta were convicted by myself, sitting without a jury, on February 1, 2022, of the following three offences:
i) Possessing a firearm without being the holder of a license, contrary to s. 91(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46;
ii) Possessing a firearm knowing it was obtained by the commission of an offence, contrary to s. 96(2) of the Criminal Code of Canada; and,
iii) Being an occupant of a motor vehicle in which they knew that there was a restricted firearm, contrary to s. 94(2) of the Criminal Code of Canada.
[2] Mr. Jeffery was also charged with operating a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public, contrary to s. 320.13(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, arising out of the same incident. He originally pleaded not guilty but, at the end of the Crown’s case, changed his plea to guilty.
[3] The sentencing hearing of the accused was originally scheduled for April 11, 2022. However, the accused sought and received an adjournment to file a constitutional challenge to the mandatory minimum set out in s. 96(2) of the Criminal Code of Canada. Sentencing submissions were heard on May 19, 2022 and the matter was adjourned to today’s date for the imposition of sentence. Today’s hearing is in person but all prior court appearances, pre-trial motions and the trial itself has proceeded, with the consent of the accused, via zoom.
CIRCUMSTANCES OF THE OFFENCE
[4] The circumstances of the offence are set out in my reasons for judgment, R. v. Jeffery, 2022 ONSC 579, 2022 ONSC 0579. Briefly, the charges all arise from an incident on June 21, 2019. Mr. Jeffery and Mr. DaCosta were stopped after a brief police chase (which was the basis for the dangerous driving charge) on June 21, 2019 at approximately 3:00 p.m. at the Lansdowne Mall in the city of Peterborough. On the front passenger floor was a gun, in its case, that had just been purchased by a Mr. Kenneth House at the Accuracy Plus gun store. The police had placed Mr. House under surveillance. When the car was stopped, Mr. Jeffery was the driver and Mr. DaCosta was in the front passenger seat. Mr. House was no longer in the car. Neither Mr. Jeffery nor Mr. DaCosta had a gun license. I found that the evidence was overwhelming that on June 21, 2019, Mr. House used his firearm license to purchase a firearm and then transferred it to both accused. I found that the suggestion that Mr. House accidently left the gun in the car utterly unbelievable and that the only reasonable logical inference was that both accused were acting together to acquire the gun.
CIRCUMSTANCES OF THE OFFENDERS
Mr. Jeffery
[5] Jaiden Jeffery was approximately 22 years old at the time of the offences. He does not have a criminal record. He was born in Scarborough, Ontario. His parents were not married and his father was in and out of his life. At the age of ten, Mr. Jeffery moved to Ajax with his mother which provided him with a better environment. Mr. Jeffery has a younger brother.
[6] Mr. Jeffery’s family is a close knit one and he is very close with his mother. Mr. Jeffery did well in high school and graduated with a red seal apprenticeship and in 2019 he completed a two-year automotive service technician program. He did so despite being diagnosed with a mild intellectual disability. Mr. Jeffery contributes $600-$1000 a month to the family household expenses. He drives his mother to the Go train to work, takes his grandparents to their medical appointments and drives his brother and cousin to school. Mr. Jeffery is currently employed as a full time senior technician at an automotive centre.
[7] Mr. Jeffery did not testify at trial. Mr. DaCosta did. Mr. DaCosta testified that he and Mr. Jeffery were in Peterborough collecting from individuals who owed them money for drugs. Mr. Jeffery has maintained to the author of the pre-sentence report that he did not know that a gun was being brought into the car but he expressed remorse for the criminal lifestyle. The author of the pre-sentence report wrote:
The subject was cooperative and forthcoming during the Pre-Sentence Report interview. In discussion about the offences currently before the Court, the subject informed that the offences occurred at a time when he was in need of “fast money” to help make ends meet at home.
The subject expressed regret for his actions, stating that he wishes he never involved himself in such a lifestyle. He admitted that he was associating with negative peers who were involved in a criminal lifestyle, which is how he was introduced to it, but he has since made changes to his peer group and all of his current associates are of positive influence.
[8] The pre-sentence report was positive. The author found that Mr. Jeffery was not a risk to the community and was of the view that poor decision making and negative peer associations were at the core of Mr. Jeffery’s offences:
Based on information received, negative peer associations and poor problem-solving skills appear to be at the core of the subject’s offending behaviour. The subject has expressed remorse for his actions and has demonstrated some insight into his problematic behaviour, although he denies knowledge of the firearm being in his vehicle……To his credit, the subject continues to benefit from what appears to be a very strong, pro-social, support system and he presents as motivated to commit to making the necessary changes to lead a pro-social lifestyle. It is this writer’s opinion that the subject would benefit from therapeutic intervention to address the identified areas of concern, and such counselling is available in the community. The subject has expressed that he is willing to comply with additional conditions, such as house arrest and counselling, although he has also expressed some fear due to his recent experiences with police.
The subject appears to be a manageable risk within the community, and it is hoped that as a first time offender, the impending consequences for his actions will deter the subject from committing future criminal activity.
[9] Mr. Jeffery filed a number of letters of support from his mother, grandfather, family friends, his current employer, and a recent mentor. In total, 8 letters were filed. They all state that Mr. Jeffery has never before been in trouble with the law, that the current offences were out of character, and that Mr. Jeffery is a kind, polite hardworking individual from a close family who had a solid future before committing these offences. One family friend, a long time clerk for the province wrote:
….I am aware of and respect the fact that the court has found him guilty of a serious crime. While I make no efforts to downplay the gravity of this matter, I would like to state that Jaiden's involvement is an aberration from what I've seen of him as a person through the years. The young man I've gotten to know has always been quiet, respectful, caring and dedicated to making a good life for himself while helping his mother. I remember him getting a job at McDonald's in his last year of high school because he wanted to contribute to his household and how proud we all were of him when he completed his automotive course in college. Jaiden began working at Mr. Lube during college and has maintained that job until this day. Personally, I have known him to be helpful, courteous and always a willing participant in family functions and get togethers. Speaking of family, Jaiden lives in a very close knit household made up of his mother, grandparents, uncle and younger sibling who will be there to guide and support him through this process and beyond.
[10] Mr. Jeffery spoke at the sentencing hearing. He stated that he is disappointed with himself but he has matured since the time of the offences.
Mr. DaCosta
[11] Mr. DaCosta was approximately 23 years old at the time of the offences and does not have a criminal record. He was born in Toronto. He has a younger sister and his parents were separated when he was young. He lived with his mother until he was 16 years old after which he lived with his father until he was 19. He then lived independently until he was 22 before returning to live with his mother. He is in a serious relationship and his girlfriend lives with him and his mother. Mr. DaCosta’s mother is a personal support worker at a local nursing home. Mr. DaCosta has a positive relationship with both of his parents.
[12] In relation to the current offence, Mr. DaCosta told the pre-sentence report writer:
….Mr. DaCosta readily admitted that he was involved in criminal activities due to lack of money. The subject stated that he wanted to make fast money and when he got an offer to do so, and he accepted it. …….The subject was forthcoming in admitting that he met a man whom he considers as an acquaintance who is his co-accused friend. The subject stated that he met him around 4 times prior to the incident. The subject stated that the, “acquaintance was successful at what ever he is doing.” He continued saying, “the acquaintance made it appear as if he just needs to do one or two criminal acts, in return he’ll get decent money” and the subject accepted the offer. The subject stated “his acquaintance was a bad influence” on him.
[13] Mr. DaCosta no longer talks to that acquaintance. As mentioned earlier, Mr. DaCosta testified that, at the time of the offences, he was selling drugs and he was in Peterborough to receive payments from his customers.
[14] Mr. DaCosta is short four credits to obtain his high school degree. He has been working for ESF construction since January 2021. His employer said that Mr. DaCosta works hard and does not cause any trouble and that he is a good guy. The pre-sentence report writer found Mr. DaCosta to be pleasant, respectful and cooperative and that he expressed remorse for his actions and that “All personal collateral sources interviewed advised that they were very surprised to have learned about the subject’s charges and that they would not have suspected that he would be involved in such type of activity.”
[15] Mr. DaCosta has since completed 5 session with the Reachout Committee, a voluntary, non-profit community-based organization addressing issues of conflicts and violence with youth/adult in the community across the GTA. He was enrolled in the life skills and the Better You Program. A member provided a letter to court and described how Mr. DaCosta has taken the first steps to improve himself. The author wrote:
Regarding this current situation in court, when asked to reflect upon how his action might have impacted the community, Mr. DaCosta has repeatedly expressed his remorse. He is aware of his actions and understands the consequences. He is able to compose positive solutions to various scenarios focused on choices, behavior, anger, depression, stress, and anxiety. The client has worked on identifying his negative behaviours and emotions. Through multiple sessions, it is evident he has progressed in many aspects and continues to willingly work on all areas of his life.
[16] Mr. DaCosta filed letters of support from two pastors, three friends, a family friend and his employer. All the letters speak to Mr. DaCosta’s ability, to his good character, and his ability to become a contributing member of the community. For example, a family friend wrote:
He isn’t only a helping hand to me but to others around me as my friend throws non profit organization and church events, we can always call on him to help at the event and clean up after. He is always so ready and willing. It is very unfortunate these circumstances that he is currently going through and I truly didn't expect to hear this type of news at all. Even with all of this going on, he still keeps his head high and accepts his wrong doings and remains to be a good man. I believe moving forward he will emerge to an even better person. I have no doubt he won't disappoint the judge in proving himself to be a man of great character that he is. I hope the court can take this letter into consideration at the time of sentencing, as Joshua is a good human being, reliable and a man of his word.
[17] Mr. DaCosta spoke at the sentencing hearing. He stated that he was extremely sorry and disappointed for everything that he has done and he will strive to do better.
Aggravating and Mitigating Factors
[18] The aggravating factors are as follows:
Both offenders knowingly set out to illegally obtain a firearm;
Both offenders were selling drugs; and
With respect to Mr. Jeffery he led the police on a car chase, an inherently dangerous activity.
[19] The mitigating factors are as follows:
Both accused have no criminal records;
Both accused are young;
Both accused have strong community support from family and friends;
The current offences were described as out of character by those who know them;
Both accused have very strong prosects of rehabilitation;
Both accused have expressed remorse for becoming involved in a criminal lifestyle and have taken steps to distance themselves from it; and
Mr. Jeffery pleaded guilty to the dangerous driving charge, albeit after evidence had been called at his trial.
LAW AND ANALYSIS
[20] The Crown submits that Mr. Jeffery should receive a sentence of three years and Mr. DaCosta a sentence of 2.5 years. The Crown stresses the true crime nature of the offences. Mr. Jeffery and Mr. DaCosta illegally obtained a gun while being involved in the drug trade. Such actions require, despite their youth, the imposition of a penitentiary sentence. Mr. Jeffery’s sentence should be longer to account for the dangerous driving conviction.
[21] Counsel for each accused seeks a conditional sentence. They agree that the crimes are serious but both accused are youthful first offenders who have acknowledged their wrongdoing and who have excellent prospects of rehabilitation.
[22] Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. To deter the offender and other persons from committing offences;
c. To separate offenders from society, where necessary;
d. To assist in rehabilitating offenders;
e. To provide reparations for harm done to victims or to the community; and,
f. To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[23] Further, s. 718.1 of the Criminal Code provides that:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[24] This case involves the illegal possession of a firearm – a handgun. Such guns serve no legitimate purpose. Gun violence is a pox on our society. It seems that not a day goes by without hearing of another handgun shooting. Sentences for firearm offences must further the goals of denunciation, deterrence, and protection of the public and require judges to impose exemplary sentences in appropriate circumstances: R. v. Nur, 2015 SCC 15, at para. 5, R. v. Mohammed, 2017 ONCA 691, at para. 6, R. v. Marshall, 2015 ONCA 692, at paras. 47-49.
[25] I agree with Crown counsel that the firearm offences committed in this case can only be considered as true crimes. While it is unknown what use the accused would have made of the firearm, the acquiring of a gun by two accused who were, at the time, involved in the drug trade is a serious concern. I appreciate that neither accused were convicted of any drug offences, even though cocaine was found in the center console of the car and in Mr. DaCosta’s bag. Mr. DaCosta testified that he and Mr. Jeffery, on June 21, 2019, were both in Peterborough collecting drug debts. I accept this evidence, which was not contested. Guns and drugs are a toxic combination; R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250, at paras. 11-13; R. v. Victoria, [2018] ONCA 69, at para. 129; and R. v. Omoragbon, 2020 ONCA 336, [2020] O.J. No. 2381.
[26] The principle of restraint, set out in ss.718.2(d) and (e) still operate when sentencing for gun offences, even when those offences require the imposition of a term of imprisonment; R. v. Morris, 2021 ONCA 680, at paras, 124, 125, 130.
[27] The Crown, in his sentencing submissions, has referred to a number of cases in support of his assertion that penitentiary sentences are merited for these two youthful first offenders. I agree that the sentences sought by the Crown are within the range of sentences received in other such cases. However, many of the cases relied upon the Crown contain more aggravating features. For example:
R. v. Marong, 2020 ONCA 598: The Court of Appeal upheld a sentence of 48 months’ imprisonment imposed on an offender who drove his co-accused to the location of a drug deal with a loaded firearm in the console of his vehicle. The age of the offender is not indicated in the court’s reasons nor is his criminal record although, given that he served significant time pending sentence in custody, it appears that he had one.
R. v. Mansingh, 2017 ONCA 68: The Court of Appeal upheld a sentence of 43 months’ imprisonment imposed on an offender who was found in possession of a loaded gun. The accused “not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.”
R. v. Marshall, 2015 ONCA 692: The Court of Appeal upheld a sentence of 3.5 years’ imprisonment for a youthful first offender who brought a loaded prohibited handgun to a drug deal. The Court commented that the sentence imposed by the trial judge was “well within the range of sentences upheld by this court for weapons offences committed in association with drug crimes”: para. 56.
The accused was present in an apartment for the express purpose of trafficking in drugs. He sold at least 15 grams of cocaine that day. He was in possession of a prohibited loaded handgun at a location where drug deals were occurring, several individuals were present and the potential for violence was high. In addition, the offender’s pre-sentence report indicates that he “seems to minimize and rationalize” his weapons offence and that he sees no “need to make changes in his life nor is he open to counselling”. Further, while on bail for the predicate offence, he was arrested for and eventually pleaded guilty to one count of possession of cocaine for the purpose of trafficking (60 grams of cocaine having a street value of approximately $5,000 to $6,000), and two counts of breach of his recognizance of bail. It was for these additional offences that the offender was also sentenced at his sentencing hearing on his firearm conviction.
- R. v. Griffith, 2019 ONSC 358 aff’d 2021 ONCA 302: The 22-year-old offender received a global sentence of 6 years’ imprisonment for unlawful possession of a loaded semi-automatic handgun with a chambered round ready to fire and possession of crack and powder cocaine for the purpose of trafficking. The Court allocated 4 years to the s.95 offence. Though the offender had a criminal record, his longest period of incarceration had been 9 months.
[28] In any event, past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated recently by Fairburn J.A. in R. v. Mohamed, 2020 ONCA 163, at para. 28:
Sentencing is not a purely mathematical exercise with floors below which and ceilings above which the sentence cannot go. Sentencing ranges are guidelines, but not hard and fast rules: Lacasse, at para. 60; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C.), at para. 44. As Wagner J. (as he then was) noted in Lacasse, at para. 58, there will “always be situations that call for a sentence outside a particular range”. Those situations will sometimes arise from the sentencing judge’s impressions and findings regarding the unique circumstances of the case, including the uniqueness of the individual who is being sentenced.
[29] In my view, a sentence of two years less a day is merited for each offender. I say this for the following:
[30] The circumstances of these offences do not have the aggravating factors that one normally sees in cases where youthful first offenders are given penitentiary sentences. The day of the offences, the two accused were both collecting money for prior drug sales. After the completion of those transactions, they drove Mr. House to the gun store and acquired a gun from him. Approximately 12 minutes later, they were stopped by the police. In this instance, the accused were not apprehended with a loaded firearm nor were they bringing a gun to facilitate a drug transaction or using it for another criminal purpose. Obviously, the concern is that they would use the gun in the future for such a purpose or for another nefarious purpose. But, thanks to the excellent work of the Peterborough police service, they were apprehended within minutes and that future event did not occur. This is not a mitigating factor but rather a lack of an aggravating factor.
[31] Similarly, Mr. Jeffery’s flight from the police in the mall was very brief and ended within seconds with no one hurt. Again, this is not a mitigating factor but the absence of a potentially much more significant aggravating factor.
[32] Neither accused pleaded guilty to the firearm offences. They cannot avail themselves of this mitigating factor. But it is evident from the sentencing material filed that they are remorseful for engaging in their criminal lifestyle and for trying to make money the quick and wrong way.
[33] Both accused are youthful first offenders. In R. v. Omoragbon, the Court of Appeal upheld a substantial sentence for a youthful offender. The Court of Appeal stated at para. 24:
We do not gainsay the importance of the sentencing objective of rehabilitation in respect of youthful offenders. But its influence on the ultimate determination of a fit sentence is a variable, not a constant. In the absence of any realistic rehabilitative prospects, its impact on the nature and length of a sentence may be attenuated.
[34] Mr. Omoragbon, while youthful, was already a repeat offender, having committed his first offence at the age of 13 and had already amassed a lengthy record by the time he was sentenced for the recent gun and drug offence. He had no realistic rehabilitative prospects. That is not the case here. The material filed on sentencing by each offender shows that they have significant support in the community and that they have made significant strides already in their rehabilitation.
[35] Mr. Jeffery was approximately 22 years old at the time of the offences. He has no criminal record. He had done well in high school, despite a learning disability. He had learned a trade and has steady employment. He helped out his family members. Those around him believe that the offences are out of character. They clearly did not realize that he was raising funds through the illicit sale of drugs. However, it is evident that they feel that Mr. Jeffery can be rehabilitated. Their conclusion is endorsed by the pre-sentence report writer. While maintaining his innocence for the current firearm offences, it is evident that Mr. Jeffery accepts responsibility for being involved in this criminal lifestyle. I accept that Mr. Jeffery can be rehabilitated.
[36] Mr. DaCosta was approximately 23 years old at the time of the offences. He has no criminal record and has steady employment. Those around him speak to his good qualities. He has shown insight into the reasons why he involved himself with the criminal element. He has been working with the Reachout Committee to address these issues. He has taken steps to distance himself from the past. Mr. DaCosta was very open with the author of the pre-sentence report.
Should and Can the Sentence be Served in the Community?
[37] In R. v. Morris, the Ontario Court of Appeal considered the appropriateness of using the conditional sentence regime in sentencing for gun offences. The court stated at paras. 124 and 125:
The restraint principle plays a specific and important role in sentencing for serious crimes like crimes involving the unlawful possession of loaded handguns. Because of the seriousness of crimes involving the possession of loaded handguns, some term of imprisonment will usually be required to reflect the seriousness of the crime.
The requirement of a sentence of imprisonment does not, however, end the operation of the restraint principle. That principle requires the court, if it determines that a sentence of less than two years imprisonment would be appropriate, to consider whether the term of imprisonment could be served in the community under a conditional sentence: Criminal Code, s. 742.1. The restraint principle favours conditional sentences over-incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.
[38] Mr. Jeffrey and Mr. DaCosta are both young black males. The Court of Appeal stated at para. 129 that:
The use of conditional sentences when sentencing young Black offenders, in appropriate cases, also carries the added advantage of addressing, at least as it relates to the offender before the court, the ongoing systemic problem of the over-incarceration of young Black offenders.
[39] In R. v. Morris, the Court of Appeal found that a sentence of two years less a day plus probation was appropriate for Mr. Morris, who was found guilty of possession of a loaded prohibited/restricted handgun, carrying a concealed weapon, and two other related-gun charges. All of the charges arose out of Mr. Morris’s possession of a loaded .38 calibre Smith & Wesson handgun. Mr. Morris’ possession of a loaded, concealed handgun in a public place, the flight from the police, and the disposal of the loaded weapon in a public place were all aggravating factors. The circumstances were, in my view more severe than in the case before me. But Mr. Morris was 23 years old at the time of the offence and did not have a criminal record at the time of sentencing. Mr. Morris had been stabbed in an unrelated event which caused him to suffer from post traumatic stress disorder. He had strong emotional support from his mother and others. Mr. Morris was described as having positive features, and rehabilitative potential. The trial judge sentenced Mr. Morris to 1 day in jail to be followed by 18 months probation. The Court of appeal varied the sentence to one of two years less a day, to be followed by a term of probation but stayed the sentence.
[40] The Court of Appeal did not find that a conditional sentence was appropriate given that Mr. Morris was in custody on other charges. A conditional sentence was not suggested by counsel. However, the Court of Appeal noted at para. 180
We would observe, however, that all other factors being equal, had Mr. Morris been before the courts exclusively on these charges and had a conditional sentence, like that ordered in Anderson (NSCA), been available, the trial judge would have had to give that option serious consideration.
[41] In R. v. Lewis, 2022 ONSC 1260, Mr. Lewis pled guilty to possession of a loaded, prohibited firearm and possession of cocaine. A safe was located in his basement containing .32 caliber revolver, two rounds of ammunition, 49.7 grams of cocaine and $2,650 in Canadian currency. Mr. Lewis had no license to possess firearms. In addition, the safe held a wallet, in which there was a further $1,560 in Canadian currency. Mr. Lewis was 22 at the time of the offences with a minor unrelated record. Mr. Lewis accepted responsibility for his actions and was genuinely remorseful for his conduct and motivated to improve the circumstances of his life. Mr. Lewis spent 7.5 months in custody before being released on bail. Boswell J., applying the principles set out in R. v. Morris, stated at paras. 46 and 47:
At para. 180 of Morris, the Court of Appeal instructed that where the sentence imposed is at or below the two-year mark, careful consideration must be given to the imposition of a conditional sentence. This is particularly so where the proper use of a conditional sentence may serve to ameliorate the long-standing problem of the over-incarceration of young Black men.
In my view, no rational purpose would be served by re-incarcerating Mr. Lewis. It would be counter-productive for him as well as the community, which has a vested interest in the success of his rehabilitative efforts.
[42] In my view, given the strong mitigating factors involved in this case, a conditional sentence with strict terms can meet the objectives of denunciation and deterrence while continuing to support both accused's rehabilitation efforts. Both accused have jobs and a strong support network. The community benefits and the community is made safer if the two accused are successful in their rehabilitation efforts.
[43] Section 96(1) and (2) of the Criminal Code currently reads as follows:
Subject to subsection (3), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition that the person knows was obtained by the commission in Canada of an offence or by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence.
(2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction.
[44] Because s.96(2) imposes a mandatory minimum sentence, a conditional sentence is not available. Both accused assert that this mandatory minimum is unconstitutional and should be struck down. In R. v. Robertson, 2020 BCCA 65 the British Columbia Court of Appeal struck down the mandatory minimum. The Court stated at para 68:
If a non-custodial sentence can be a fit punishment for a person with a weapons related criminal record who possess a loaded handgun for an illicit purpose then, in my view, a provision that demands a youthful first-time offender be sentenced to one year in prison for possessing a far less lethal, albeit stolen, firearm, imposes a grossly disproportionate punishment.
[45] In R. v. Foster [2017] O.J. No. 471, Paresky J. struck down the section as well. I agree with these decisions that s.96(2) violates s.12 of the Charter. I find the section to be of no force and effect. I also note that Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, 1st Sess., 44th Parl., 2021-2022, has repealed the statutory mandatory minimum sentence of one year under section 96(2)(a). That Bill has passed its third reading and is now in the Senate.
CONCLUSION
[46] For counts 2,3,4 I sentence Mr. Jeffery to two years less a day less credit for 3 days pre-sentence custody, to be served in the community upon the mandatory terms set out in s. 742.3(1) of the Code, and the following conditions:
• Remain in your residence at all times, subject to the following exceptions and the travel related to those exceptions:
o scheduled meetings with your conditional sentence supervisor;
o attendance at your place of worship, reported in advance to the supervisor;
o medical appointments for yourself, reported in advance to the supervisor;
o attendance for counselling as may be recommended by the supervisor;
o employment on a schedule reported in advance to the supervisor;
o such further and other exceptions as may be approved in advance by your supervisor.
• Have no contact with Kenneth House;
• Have no contact or association with anyone known to you to have a criminal record; and
• Have no possession of any drug/medication without a valid prescription in your own name.
[47] For count 1, I sentence Mr. Jeffery to a 6 month conditional sentence to be served concurrently and on the same terms for counts 2-4. In addition, Mr. Jeffery shall be subject to an 18 month driving prohibition order.
[48] For counts 2,3,4, I sentence Mr. DaCosta to two years less a day less credit for 5 days pre-sentence custody, to be served in the community upon the mandatory terms set out in s. 742.3(1) of the Code, and the following conditions:
• Remain in your residence at all times, subject to the following exceptions and the travel related to those exceptions:
o scheduled meetings with your conditional sentence supervisor;
o attendance at your place of worship, reported in advance to the supervisor;
o medical appointments for yourself, reported in advance to the supervisor;
o attendance for counselling as may be recommended by the supervisor;
o employment on a schedule reported in advance to the supervisor;
o such further and other exceptions as may be approved in advance by your supervisor.
• Have no contact with Kenneth House;
• Have no contact or association with anyone known to you to have a criminal record; and
• Have no possession of any drug/medication without a valid prescription in your own name.
[49] I appreciate that each offender has been subject to relatively strict bail conditions. It is their compliance with the bail conditions that helped demonstrate that they were both good candidates for a conditional sentence. Given the length of time they were subject to these conditions, I do not feel that an additional probation order is merited. Beyond that, I decline to grant any additional Downes credit.
[50] Mr. DaCosta and Mr. Jeffery shall also both be subject to a DNA order, a s.490 forfeiture order and a ten year s.109 weapons prohibition order.
LEIBOVICH J.
Released: June 24, 2022