BACKGROUND

[1] On February 25, 2021, Stefani Kongolo was arrested and charged under the Criminal Code with nine firearms offences and one failure to comply with a firearms prohibition. The charges arose on August 7, 2020 when his mother found a restricted, loaded Sig Sauer P22 semi-automatic handgun together with an over-capacity magazine capable of holding 12 bullets in her son’s bedroom.

[2] On April 29, 2022, Mr. Kongolo pleaded guilty before me to the firearm charge at count 3 on the indictment which is that, contrary to s. 95(1) of the Criminal Code, he possessed a loaded, restricted firearm without an authorization, licence or registration certificate. An Agreed Statement of Facts was read into the record on the plea. Mr. Kongolo conceded the following facts related to possession of the firearm:

[3] On August 7, 2020, Mr. Kongolo’s mother was cleaning his bedroom when she came upon a backpack owned by her son which contained a loaded, black firearm and ammunition. The handgun was a 40 calibre Sig Sauer, a restricted firearm under the Criminal Code. The magazine containing six bullets was in the handgun. The magazine has a capacity of holding 12 bullets making it a prohibited device. The backpack contained 125 rounds of loose ammunition.

[4] Mr. Kongolo’s parents confronted him and he denied the firearm was his. He said he was holding it for a friend. A dispute arose and Mr. Kongolo struck his father and left the house. When he returned the next day, his mother informed him she was going to call the police. Mr. Kongolo left the house. He was at large until he turned himself in to the police on February 25, 2021.

[5] Mr. Kongolo also conceded facts related to earlier incidents where he was charged with criminal harassment and uttering threats and subjected to a firearms prohibition.

[6] On May 13, 2020, Mr. Kongolo got into a dispute with a 14-year-old neighbour where he slapped him in the head and threatened to beat him up. The police arrived and cautioned Mr. Kongolo. They did not arrest him on the request of the victim.

[7] On May 24, 2020, Mr. Kongolo went to the door of the victim’s home and the mother answered. Mr. Kongolo again threatened to assault the victim for being a snitch. The police were called and the mother indicated she only wanted the police to caution Mr. Kongolo again. She stated that her son was afraid of Mr. Kongolo.

[8] The police could not locate Mr. Kongolo. But later that day he returned to the victim’s home and threatened him again. The police arrived and arrested him a short distance away. He was arrested and charged.

ABOUT MR. KONGOLO

[9] Mr. Kongolo provided an affidavit and his mother provided a letter as evidence of Mr. Kongolo’s background and life circumstances. Mr. Kongolo’s family fled violence in Angola and attained refugee status in Canada in 2000. The family was financially prosperous in Angola and because of the war lost extensive land holdings and houses.

[10] The mother had to leave her husband behind because he was in the military. With her small son she first moved to St. Catharines, Ontario. She and Mr. Kongolo describe their experiences with anti-Black racism in St. Catharines as one of the few Black families in St. Catharines. Mr. Kongolo faced racial slurs as one of the only Black children in his school. The mother speaks of having difficulty finding jobs in St. Catharines and only being able to obtain low-paying factory work.

[11] The mother struggled financially to support herself and her son. She felt that being a Black immigrant was a factor in her poor employment prospects. Both Mr. Kongolo and his mother indicate that one of the reasons they moved to Toronto was to escape racial prejudice. The mother explains that she thought there would be better opportunities for employment and schooling in the larger city of Toronto.

[12] When Mr. Kongolo was arrested on February 25, 2021, he was one month short of age 21. He was age 22 at the time of sentencing. Mr. Kongolo is a young man who does not have a criminal record.

[13] Materials filed by defence counsel portray a young man with a promising pro-social life with the benefit of a supportive, loving family. Mr. Kongolo graduated from secondary school in January 2019. He completed the “School Within a College” program at George Brown College. He participated in sports and won awards. He worked at summer jobs as a groundskeeper, a youth counsellor and truck loader. Mr. Kongolo’s plan before he was arrested was to attend a business program and take math courses at George Brown College. Mr. Kongolo spoke about the adverse effect the suicide of a close childhood friend had on his mental health including contemplating suicide himself.

[14] Mr. Kongolo speaks of the many times he has experienced anti-Black racism as a youth in Toronto. He describes suffering racial slurs, being treated with suspicion by the police, of the many experiences of being stopped and questioned for no reason and also being treated suspiciously by people in the building where he resides.

OBJECTIVES AND BASIC PRINCIPLES OF SENTENCING

Objectives

[15] Section 718 of the Criminal Code sets down the principles to govern determinations on sentencing, being: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; to separate offenders from society; to assist in rehabilitating offenders; to provide reparations for harm done to victims or to the community; and to promote a sense of responsibility in offenders.

Proportionality

[16] Proportionality is a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 1986 C.C.C. (3d) 129 (Ont. C.A.)].

Parity

[17] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.)].

Totality

[18] The totality principle must be considered for some sentences. Section 718.2(c) of the Criminal Code provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: [R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 , at para. 42, (S.C.C.)]. If the cumulative sentence is too harsh, the court must adjust the total sentence in order that it not be out of proportion to the gravity of the offences. This principle is not operative in the case at hand since I am addressing a guilty plea on one count.

[19] The Supreme Court of Canada in R. v. Nasogaluak held, “No one sentencing objective trumps the others”…. There are some offences for which certain objectives are to weigh more heavily: [Nasogaluak, [2010] 1 S.C.R., at para. 43, (S.C.C.)]

Sentencing Objectives for Firearm Offences

[20] This case involves possession of a restricted firearm. The Court of Appeal emphasized that the principles of denunciation and deterrence must be clearly reflected in sentences for gun-related-offences. As the court stressed, “… our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the community and must be addressed”: [R. v. Danvers, 2005 30044 (ON CA), [2005] O.J. No. 3532, at para. 78, (Ont. C.A.)].

[21] The spectrum of sentences for firearm offences is wide: [R. v. Nur 2013 ONCA 677 (Ont. C.A)]. Possession of a firearm in the context of drugs is a particularly toxic combination: [R. v. Wong, 2012 ONCA 767 (Ont. C.A.)].

Restraint and Rehabilitation

[22] As a general principle, s. 718.2(d) requires that no offender should be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

[23] This represents the importance of specific attention being given to restraint. Canadian sentencing jurisprudence has traditionally focused on the aims of denunciation, deterrence, separation, and rehabilitation, with rehabilitation a relative late-comer to the sentencing analysis: [R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688 at para. 42, (S.C.C.)]. The concepts of restraint and rehabilitation are related principles that express Parliament’s growing recognition of the need to focus on alternatives to incarceration in sentencing.

Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.

[24] Restraint has also become an objective in sentencing specific categories of offenders.

[25] Section 718.2(e) of the Criminal Code points to a particular focus on the unique circumstances of Aboriginal offenders. Parliament directs that courts shall consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. This is clear acknowledgment of the recognition of the unique circumstances of Aboriginal people and their treatment in the criminal justice system: R. v. Gladue, at para. [24].

[26] While not concerned with sentencing, but rather with judicial interim release, s. 493.2 of the Criminal Code shows Parliament’s growing concern with the over-representation and over-incarceration of Aboriginal and other vulnerable populations not only at the end but also the beginning stages of the criminal justice process. There is acknowledgment of the difficulties vulnerable populations confront in satisfying the grounds for judicial interim release.

[27] Consideration is also given in sentencing young people and first offenders caught up in the criminal justice system.

[28] Regarding young persons, Canadian courts have long recognized the principle of fundamental justice, that young people are entitled to a presumption of “diminished moral blameworthiness or culpability” owing to the fact that due to their age, “they have heightened vulnerability, less maturity and a reduced capacity for moral judgment”. There is a requirement for restraint in sentencing young people: [R. v. D.B., [2008] 2 S.C.R., at para. 41, (S.C.C. 25)].

[29] Regarding first offenders, Rosenberg, J.A. (as he then was) offered some useful observations:

... it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary.

[30] The court went on to say:

The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge's reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment. ...

[R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369, at paras. 18 and 20, (Ont. C.A.)]

AGGRAVATING AND MITIGATING FACTORS

Section 718.2(a)

[31] Section 718.2(a) of the Criminal Code provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. Some aggravating and mitigating factors are set by legislation and others have been developed at common law.

Aggravating Factors

[32] The aggravating factors in this case mainly centre on the fact that we are looking at a gun crime in an urban centre that has been wracked with shootings in residential areas, schools and in many and sundry commercial and public spaces throughout the city.

[33] Mr. Kongolo stored a loaded, semi-automatic firearm in his bedroom where his mother was vulnerable to the danger. As noted, it was when she was cleaning that she discovered the backpack containing the firearm with an over-capacity magazine. There were also 125 bullets in the backpack. It is truly frightening to think about what Mr. Kongolo’s plans were for that high-powered weapon.

[34] Also aggravating is that Mr. Kongolo responded aggressively by disrespecting and striking his father when confronted about the firearm. Further, Mr. Kongolo left the home when his parents told him they were calling the police. He remained at large not turning himself over to the police until over six months after the gun was found.

[35] The Crown impressed on the court the dangers and pervasiveness of gun crime throughout Toronto and vicinity. No one can ignore the many deaths, injuries and the fear enveloping the public in residential and commercial areas, schools and parks and playgrounds. This reality must be considered when sentencing offenders for firearm offences.

[36] The evidence shows that Mr. Kongolo has some history of aggressive and threatening behaviour apart from striking his father. Prior to his gun charges, he was charged with assault and uttering threats. The police were called several times because he was bullying a 14-year-old neighbourhood kid. That aggressive behaviour combined with the presence of a loaded firearm in his possession at his home is very troubling.

[37] Somewhat mollifying, but not neutralizing, the seriousness of the crime is the fact that there is no evidence that Mr. Kongolo used the gun in any way. We are not dealing with a gun crime where someone pointed a gun, took it out into the public or fired the gun. Those are the more dangerous and fearsome classes of gun crimes.

Mitigating Factors

Young Offender, No Criminal Record, First Offender, Family Support

[38] Mr. Kongolo’s young age and lack of criminal antecedents are positive factors for sentencing. He has no criminal past and therefore has no non-compliance offences. This bodes well for rehabilitation. He presented evidence of a pro-social life in his earlier youth before his contact with police, references to his summer employment, involvement in sports and his schooling. He had plans to return to college to study business.

[39] Mr. Kongolo’s mother attended the sentencing hearing. He is fortunate to have the loving support and dedication of his mother who, through the struggle out of poverty, has established a successful cleaning business. She is prepared to offer her son a position with her company when he is released from custody. His stepfather, a driver with a ride share company, is also part of Mr. Kongolo’s family.

Guilty Plea

[40] Mr. Kongolo pleaded guilty. This can be seen as indicative of remorse and an acceptance of responsibility for his crime. This warrants consideration on sentencing.

[41] I find Mr. Kongolo’s plea was a genuine expression of remorse and accountability for his crime. I say this because in addition to the plea, he addressed the court at the sentencing hearing. He spoke in earnest acknowledging and apologizing for the seriousness of his crime. He took full responsibility for his actions.

[42] I was impressed with Mr. Kongolo’s heartfelt display of contrition. He told the court he accepted his period of custody as having some positive influence on his life in the midst of and in spite of the harsh conditions. He told the court that being in jail allowed him time to think about the direction of his life. He realizes he is not the same man that entered detention - he grew up during his time in custody. I find this also makes Mr. Kongolo a good candidate for rehabilitation.

[43] The Crown pointed to the timing of the plea as a detracting factor.

[44] Mr. Kongolo was arrested on February 25, 2021 and pleaded on April 29, 2022. The Crown takes the position that the plea came late and was influenced by Mr. Kongolo’s realization, by that point, of the strength of the Crown’s case. For that reason, the Crown submits, the plea should not be attributed the mitigation credit an earlier plea might have garnered.

[45] On a general level, some mitigation value resides in a plea at any time before trial. Judicial economy from avoiding a trial will always result in some savings in time, money and inconvenience, albeit in a greater degree the earlier the plea.

[46] McMahon, J. of this court, raises another critical point that emerges from the significant impact on the court and the rights of parties the pandemic created. As he observed, and I agree, in this era of the pandemic and the current backlogs, guilty pleas will be accorded significant weight: [Oral Decision, R. v. Craigg, April 11, 2022, CR 2140000409-0000; CR-19-10000213- 0000, at pp 5].

Member of a Vulnerable Population

[47] Along with other sentencing principles, I must consider the effect of restraint as reflected in s. 718.2(e) of the Criminal Code. When he entered pre-trial custody, Mr. Kongolo was a 21-year-old Black male, a member of a vulnerable population that is over-represented in the court and prison systems.

[48] In a case before him, Nakatsuru, J., of this court, applying s. 718.2(e), sentenced a Black male with no criminal record. A jury had convicted him on numerous firearm offences after he was caught at age 22 with a loaded revolver following a foot chase with the police. Nakatsuru, J. imaginatively describes the practical reality of being a “vulnerable” Black male youth in the grip of the criminal justice system:

The young man who makes the choice to pick up a loaded illegal handgun will not likely be a product of a private school upbringing who has the security of falling back upon upper middle class family resources. Rather, he is likely to be a product of oppression, despair and disadvantage. Likely he is someone who cannot turn is life around on a dime even if he wanted to. In short, he is you, Mr. Morris.

[R. v. Morris, 2018 ONSC 5186, at para. 84 (Ont. S.C.J.)]

[49] Considering the aggravating and mitigating factors in Morris, the accused was sentenced to 15 months in jail. After considering the effect of Charter breaches, the sentence was reduced to 1 year and, in addition, 18 months’ probation was imposed. On appeal, as further noted below, the sentence was increased to 2 years, less a day, minus pre-trial custody, with 18 months’ probation.

[50] In an earlier decision in 2018, Nakatsuru, J. sentenced a Black male, age 33 years, who pleaded guilty. He sentenced him for possession of a prohibited gun and a breach of a court order. The offender pleaded guilty. He had a lengthy criminal record. When arrested, the offender was subject to five weapons prohibition orders.

[51] In the following passage, Nakatsuru, J. again considered s. 718.2(e) as it is applied to the experiences of African Canadians in the criminal justice system:

It is the remedial nature of s. 718.2(e) that provides the authority for me to address the disproportionate imprisonment of African Canadians. While Parliament did single out Indigenous persons for special attention, its enactment benefits all offenders. For African Canadians, given the evidence presented to me, disproportionate incarceration is an acute problem. Section 718.2(e) can be resorted to in order to address this particular problem. It is further meant to encourage restorative approaches in the application of the sentencing principle of restraint.

[R. v. Jackson, 2018 ONSC 2527, at para. 79, (Ont. S.C.J.)

[52] The sentence imposed was just less than 1½ years for possession of a prohibited weapon and 1 year consecutive for breach of a prohibition order.

[53] As noted earlier, before arriving in Canada, Mr. Kongolo and his family faced a life marked by violence in their native Angola which at the time was enveloped in killings, seizures of property and flights of people to safety. The family, once financially prosperous, lost everything. The mother was forced to flee with her son leaving the father behind in the Angolan military. The mother and her son fled to Canada as refugees settling first in St. Catharines, Ontario and then Toronto where, in both places, experiences of alienation, poverty and racism followed them into the Canadian context.

[54] The mother spoke of the difficult times in St. Catharines, a victim of anti-immigrant, anti-Black discrimination in employment. She was constrained to low-paying jobs making it difficult to support herself and her son. Mr. Kongolo described being one of few Black students in his school, of suffering social isolation and racial epithets. The mother decided to move to the larger Toronto urban centre believing she could make a better life for her and her son - only to see a struggle against poverty and her son entangled in the criminal justice system.

[55] Not unlike the experiences of other African Canadian males, Mr. Kongolo describes being the victim in Toronto of anti-Black racism, of randomly being stopped by the police and questioned for no reason and being mistrusted by his neighbours.

CASE AUTHORITIES

[56] R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 (S.C.C.): The court held the 3-year mandatory minimum sentences imposed by s. 95(2)(a)(i) and (ii) of the Criminal Code violate s. 12 of the Charter and are null and void under s. 52 of the Constitution Act, 1982. The court held: “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”. The Supreme Court approved the following observation by Doherty, J.A. of the Ontario Court of Appeal in R. v. Nur:

The scope of s. 95 is best understood by considering the range of potential offenders caught by that section. At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

[R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 49, (Ont. C.A.)].

[57] R. v. Morris, 2021 ONCA 680, 2021 CarswellOnt 13803 (Ont. C.A.): The accused had possession of a loaded, concealed handgun in a public place. He fled the police and then disposed of the loaded weapon in a public place. The court adopted the sentence ranges fixed in Nur finding at the “true crime” end of the spectrum, a penitentiary sentence, will be necessary for a s. 95 offence and that in some, sentences at or near a maximum reformatory, sentence will be appropriate. On the s. 95 charge, the court imposed a sentence of 2 years, less a day, less pretrial custody credit and 18 months’ probation.

[58] R. v. Marshall, 2015 ONCA 692, [2015] O.J. No. 5348 (Ont. C.A.): The offender was in constructive possession of a loaded firearm while trafficking cocaine from his apartment. The offender was youthful, with no criminal record. He was a good prospect for rehabilitation. He was sentenced to 3.5 years. The court observed that although the court should impose the shortest sentence for a youthful, first time offender, the court must consider the seriousness of the crime in imposing sentence. The court commented on the prevalence of gun violence in Toronto and the plague on communities.

[59] R. v. Thavakularatnam, 2018 ONSC 2380, [2018] O.J. No. 2038 (Ont. S.C.J.): The offender, age 20, carried a firearm to a mall. When he encountered the police, a struggle ensued after which the police found a loaded firearm in his satchel. The offender, with no criminal record, pleaded guilty and expressed remorse for his actions to the author of the PSR. The court relied on R. v. Marshall for its treatment of young first-time offenders in the context of prevalent gun violence. A 3½-year sentence was imposed.

[60] R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 (S.C.C.): The court held that the fact that a particular crime occurs frequently in a particular community is not an aggravating factor. It is a factor a judge might take into account in balancing sentencing objectives, including denouncing the conduct in question in the community. In the appropriate case, the court may take judicial notice of the prevalence of a crime in a community.

[61] R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (Ont. C.A.): The offender had no criminal record and had good prospects for rehabilitation. He discarded a loaded firearm while being pursued by the police. He had the firearm’s magazine on his person as well as marijuana and a large amount of cash. The court found a commercial drug operation to be an aggravating factor. A sentence of 43 months, that is, 3 years and 7 months, was imposed.

[62] R. v. Talbi, 2020 ONCA 388 (Ont. C.A.): The police intercepted a call involving the accused based on which they inferred the accused was in possession of a handgun. Further investigation revealed the accused was holding onto the handgun while someone else was facilitating its sale. The police executed a search warrant at the purchaser’s home and found a revolver. The sentence was varied to 30 months for possession of a loaded firearm.

[63] R. v. Jean, 2015 ONSC 9, aff’d 2016 ONCA 137 (Ont. C.A.): The accused was found guilty of possession of a loaded handgun. The accused stored a handgun in a shoe box under his spouse’s bed. The sentence was 4.5 years less pretrial custody.

[64] R. v. Baldwin, 2021 ONSC 7025 (Ont. S.C.J.): The accused pleaded guilty to possession of 2 loaded firearms in his residence. The police received confidential source information based on which they obtained a warrant to search the accused’s residence. The police seized 2 loaded firearms and ammunition. The accused resided with his common law spouse and their 3-year-old child. A global sentence of 4 years, less 1 year Duncan mitigation, less pretrial custody was imposed. The balance of the sentence (327 days) was to be served as a conditional sentence.

A FIT SENTENCE

[65] The Crown takes the position that a just sentence is a 4-year penitentiary term, less time served in pretrial custody, followed by 3-years’ probation with reporting, counselling and no contact terms and geographic limitations. The Crown also seeks a firearm prohibition, DNA order and forfeiture order for the firearm, magazine and ammunition.

[66] The defence submits that a sentence of 2 years is a fit sentence for Mr. Kongolo, before accounting for any credits he is entitled to. For the following reasons, I accept a 2-year sentence as appropriate in the circumstances.

[67] I first considered the nature and seriousness of Mr. Kongolo’s offence.

[68] Applying the Nur sentencing ranges, I find the circumstances of Mr. Kongolo’s offence place it on neither of the extreme ends of the spectrum.

[69] Mr. Kongolo is neither “an outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his criminal trade”. He does not have a criminal record nor prior firearm convictions. He has no non-compliance convictions. He is not a hardened criminal. Nor is he “a law-abiding, responsible gun owner who ... has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence ...”. His is not a regulatory offence.

[70] I agree with defence counsel that Mr. Kongolo’s crime falls somewhere at the midpoint on the spectrum.

[71] Looking at R. v. Morris, as noted earlier, that case involved a young African Canadian male who received a 2-year, less a day custodial sentence with a much more serious gun crime. Morris had a loaded, concealed handgun on his person in a public place. He also fled the police and disposed of the loaded weapon in a public place.

[72] In contrast, Mr. Kongolo did not have the firearm on his person nor did he point it or fire it. Albeit in no way to be condoned, Mr. Kongolo’s crime presented no immediate danger to the public. He did, however, put his mother at some jeopardy finding the loaded firearm and ammunition in a backpack in his bedroom.

[73] Mr. Kongolo’s crime is not at the “true crime” end of the spectrum where a penitentiary sentence will be necessary for his s. 95 firearm offence. It is not a case where a sentence at or near a maximum reformatory sentence will be appropriate, although this is what the defence proposes: [R. v. Morris (C.A.), at para. 177].

[74] In this case, I find a 2-year (730 days) custodial sentence is a fit disposition. A low single-digit penitentiary sentence is not unreasonable and will not, in all the circumstances, cause the public to lose confidence in the administration of the criminal justice system. In arriving at my decision, I turned my mind to the following factors:

• the principles of denunciation and deterrence as applied to firearm offences,

• the principles of proportionality in relation to the gravity of the offence and parity in relation to dispositions in similar cases,

• the midpoint place of Mr. Kongolo’s case on the Nur spectrum,

• the principles of restraint and rehabilitation afforded to a young, first offender and to a member of the vulnerable African Canadian population,

• Mr. Kongolo’s good prospects for rehabilitation,

• the guilty plea, particularly in view of the effect of the pandemic on the courts, and Mr. Kongolo’s show of remorse, and

• the other aggravating and mitigating factors considered.

Summers Credits

[75] Starting on February 25, 2021, Mr. Kongolo has spent some 433 real days (nearly 2 years) in pretrial custody. The totality of this time was served during the COVID-19 pandemic.

[76] I agree that Mr. Kongolo should be given credit for time spent in pretrial custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers: [R. v. Summers, SCC 26, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.)]. This and other courts have commented, even before the pandemic, on the deplorable and inhumane conditions faced by inmates where their right to a healthy and hygienic environment, and entitlement to mobility and communication with counsel and family are trammeled on a daily basis. Based on the 1.5 to 1 Summers formula, Mr. Kongolo is entitled to a credit of 650 days.

Duncan Credits

[77] The Ontario Court of Appeal in R. v. Duncan confirmed the principle that for the harsh conditions of incarceration, the court can credit pre-sentence custody at a rate greater than 1.5 to 1:

…We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in ‘lockdown’ conditions due to staffing issues in the correctional institution.

[R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 at para. 6, (Ont. C.A.)]

[78] Courts have determined that Duncan credits can be quantified but in doing so care must be taken that the result does not skew the sentence to an inappropriate sentence. It has been observed that quantifying Duncan credits promotes transparency in sentencing and alerts the government to the effect inadequacies in the custodial institutions have on sentencing: [R. v. Marshall, 2021 ONCA 344, [2021] O.J. No. 2757, at para. 53, (Ont. C.A.); R. v. Ahmed, 2021 ONSC 8157, [2021] O.J. No. 6979, at para. 42, (Ont. S.C.J.)].

[79] Defence counsel reviewed a number of cases of inmates confined in various institutions and calculated the Duncan ratios in those cases. It is recognized that the circumstances for the inmates are not identical. But the common theme in the cases is that inmates confronted cruel, emotionally and physically unhealthy and alienating conditions in pretrial custody:

R. v. Clarke, 2020 ONSC 3878, [2020] O.J. No. 2991 (Ont. S.C.J.) - 244 days lockdown, 1.36:1 ratio.
R. v. Baldwin, 2021 ONSC 7025 (Ont. S.C.J.) - 124 days lockdown, 2.94 to 1 ratio
R. v. Prince, [2020] O.J. No. 4373 (Ont. S.C.J.) - 321 days lockdown, 1.5:1 ratio
R v. Ward-Jackson, 2018 ONSC 178, [2018] O.J. No. 163 (Ont. S.C.J.) - 488 days lockdown, 1:1 ratio

[80] At least 65% of Mr. Kongolo’s the pretrial time was spent in lockdown. However, the number of lockdown days could exceed 65% given the Toronto South Detention Centre’s notoriety for not keeping accurate records: [see: R. v. Fermah, 2019 ONSC 3597, [2019] O.J. No. 3037, at paras. 39 - 41, (Ont. S.C.J.) and R. v. Edwards, [2018] O.J. No. 5075, at paras. 27-32, (Ont. S.C.J.)].

[81] Given the Toronto South Detention Centre’s substandard record-keeping, at the minimum 65%, Mr. Kongolo spent some 282 days in lockdown.

[82] The defence takes the position that, in addition to the Summers credits, Mr. Kongolo’s Duncan credits should be calculated at a ratio of 2:1 for each day spent in lockdown. In all of the circumstances I have considered, I do not have a problem with a 2:1 Duncan ratio. I do not find that calculation skews the sentence away from an appropriate sentence. In the result, taking the Summers deductions and the Duncan deductions into account, Mr. Kongolo will serve no further time in custody.

[83] Through our sentence reduction decisions, the courts have for years been attempting to communicate to correctional institutions their disapproval of the inhumane treatment of inmates. The cases have in graphic terms described the abysmal conditions that no human should endure, even moreso inmates who are supposed to enjoy the constitutional presumption of innocence. There has been no finding of guilt for these inmates and yet they face unnecessary and unremitting punishment on a daily basis.

[84] I add my voice to the disapproval.

Probation and Rehabilitation

[85] Again, Mr. Kongolo is a Black man who has endured the poverty and displacement of being a refugee in Canada. He has confronted anti-Black racism from a young age and the humiliation and stress of being constantly surveilled by the police and suspected by his neighbours. Mr. Kongolo engaged in the dangerous practice of hiding a loaded firearm in his bedroom. That act is frightening. However, his crime did not occur in a public space. He did not directly endanger his community. One can certainly wonder what Mr. Kongolo planned to do with the firearm. And I guess we will never know. However, I cannot burdened Mr. Kongolo with guesswork and speculation in determining a fair disposition of his case.

[86] Mr. Kongolo has shown remorse. He does not have a criminal record. He is not a hardened criminal. He has the dedicated support of his family. He was on a pro-social road months before his bad interactions with his neighbours. He is a good candidate for rehabilitation. I do agree with the Crown that rehabilitation should be a necessary part of his sentence. He has spent a lengthy time in custody for a young man. Mr. Kongolo will need support to help him embark on a positive life path when released.

[87] I believe, as Nakatsuru, J. did in Morris and Jackson, that Mr. Kongolo’s specific needs as a Black man in Toronto whose family is of modest means can be best understood, assessed and supported through counselling and culturally appropriate programs. I think an 18-month period of probation is appropriate in the circumstances.

Ancillary Orders

[88] I will make the ancillary orders sought by the Crown.

SENTENCE

[89] I will now pass sentence. Stefani Kongolo will you please rise.

[90] I sentence you to a 2-year period of imprisonment.

[91] Taking into account the pretrial Summers and Duncan credit deductions I have granted, you have no further time to serve in custody.

[92] You shall be released as soon as practically possible from the Toronto South Detention Centre.

[93] I impose an 18-month period of probation on the following terms:

a) You shall report to your probation officer as directed by your probation officer during your probationary term;

b) You shall attend counselling and assessments culturally appropriate to African Canadian persons, as directed by your probation officer with a focus on mental health, anger management and/or life skills;

c) You shall sign any required releases to allow your probation officer to monitor progress in counselling and assessments for the first year of the probation;

d) You shall not be in possession of any weapons as defined under the Criminal Code which includes any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance;

e) You shall not contact or communicate, directly or indirectly, by any means, with Jaden Allen or Jaqueline Allen;

f) You shall not attend within 50 metres of 55 Bishop Tutu Boulevard, Toronto; and

g) You shall not attend within 50 metres of anywhere you know Jaden Allen or Jacqueline Allen to work, live, go to school, frequent, or you otherwise know them to be.

[94] I make the following ancillary orders under the Criminal Code:

a) a s. 490.012(1) DNA order based on a secondary designated offence under s. 490.011(1);

b) a s. 109 weapons prohibition order for life; and

c) a forfeiture order under 490.2(1) for the Sig Sauer P22 semi-automatic handgun, the magazine and ammunition.

Allen J.

Released: June 29, 2022

R. v. Kongolo, 2022 ONSC 3891

Case Summary