R. v. Beharry, 2022 ONSC 4370

COURT FILE NO.: CR-20-10000182

DATE: 20220726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TROY BEHARRY

M. Goldenberg, for the Crown

H. Dudding, for Mr. Beharry

HEARD: July 18, 2022

REASONS FOR SENTENCE[^1]

SCHRECK J.:

[1] Troy Beharry had a loaded handgun in his car. It was inside a fanny pack on the back seat and the police found it while conducting a search for cannabis. Mr. Beharry possessed the gun for his own protection because he lived in a neighbourhood in which there is frequent gun violence.

[2] Following a brief judge-alone trial, Mr. Beharry was found guilty of possession of a firearm without being the holder of a licence, contrary to s. 91(1) of the Criminal Code (Count 1), possession of a firearm while knowingly not being the holder of a licence, contrary to s. 92(1) (Count 2), occupying a motor vehicle knowing that there was a firearm in it, contrary to s. 94(1) (Count 3) and possession of a loaded prohibited firearm without being the holder of a licence to possess it, contrary to s. 95(1) (Count 4).

[3] Mr. Beharry is 32 years old. He has no prior criminal record. He is a Black man of Guyanese descent. He grew up in various areas of Toronto in relative poverty and was raised primarily by his mother as his father suffered from addiction issues. His family is supportive of him. Mr. Beharry never completed high school, but has a stone masonry certificate. His employment history in the past few years has been inconsistent. Mr. Beharry suffers from chronic pain resulting from having been in two automobile accidents and there are indications that he also suffers from an undiagnosed anxiety disorder. He has two children, aged 17 and two years old, but does not live with them.

[4] The Crown submits that Mr. Beharry should be sentenced to a term of imprisonment for three and a half to four years. Crown counsel submits that such a sentence is necessary to give effect to the sentencing objectives of general deterrence and denunciation, which are paramount in cases such as this. Counsel for Mr. Beharry submits that a 15-month conditional sentence is appropriate. She submits that Mr. Beharry’s degree of responsibility is attenuated because of his personal history, including his experiences with anti-Black systemic racism, and also submits that he should be granted credit for time spent subject to strict bail conditions.

[5] The following reasons explain the sentence that will be imposed in this case.

I. FACTS

A. The Offences

[6] On the morning of October 21, 2019, Mr. Beharry was driving a motor vehicle on Highway 401 in Toronto when he was involved in a collision. The police who attended the accident scene saw a marijuana grinder on the passenger seat of Mr. Beharry’s car and formed grounds to believe that he had cannabis in the vehicle in contravention of the Cannabis Control Act, 2017, S.O. 2017, c. 26. As a result, they searched the vehicle. On the rear passenger side seat, they found a fanny pack containing a loaded Taurus G2S 9 mm handgun.

B. The Offender

(i) Background

[7] A detailed “Enhanced Pre-Sentence Report” (“EPSR”) was prepared by Jacquie Pemberton, a social worker with the Sentencing and Parole Project, a non-profit organization that prepares reports of this nature for marginalized Black individuals. The EPSR is very detailed and comprehensive and I found it to be extremely helpful. What follows is a brief summary of some of the information in it.

[8] Mr. Beharry is 32 years old. His mother is from Guyana and Mr. Beharry describes himself as “Black and Brown.” He and his two siblings grew up in the Markham Road and Eglinton Avenue East area of Toronto, a low-income and “high crime” neighbourhood where there were many shootings and robberies.

[9] Mr. Beharry reported experiencing racism as a child and recalls being told by people in his neighbourhood to “go back to his country.” He also experienced racism from members of his extended family because his skin tone was darker than theirs. Mr. Beharry was frequently stopped by the police and searched, something his White friends did not experience. However, Mr. Beharry also told the author of the EPSR that he has had some good experiences with police officers who have been helpful to him.

[10] Both of Mr. Beharry’s parents were addicted to crack cocaine when he was young. His mother eventually recovered from her addiction, but his father did not and was largely absent from Mr. Beharry’s life by the time Mr. Beharry was ten years old. Because of this, Mr. Beharry viewed his older brother, Shane Beharry, as a father figure.

[11] Mr. Beharry’s family lived in relative poverty while he was growing up and sometimes depended on social assistance and food banks. Mr. Beharry’s mother moved to Florida when he was in Grade 8 to care for her grandmother. During this period, Mr. Beharry lived in various places, including with an aunt, his older sister, and with a young woman with whom he had a child at the age of 15.

(ii) Education and Employment

[12] Mr. Beharry struggled in school with reading and writing and continues to do so as an adult. He had to repeat Grade 1. In Grades 7 and 8, he attended three different schools because his family moved. He experienced bullying at each new school, which led him to become involved in fights and often suspended as a result. This continued until Grade 9, at which point Mr. Beharry stopped attending school. He tried to obtain his high school diploma a few years later but was unsuccessful. Mr. Beharry told the author of the EPSR that he “learns different and needs ‘hands on’ direction” and for this reason believes that further attempts to pursue his education would be futile.

[13] In the past, Mr. Beharry has worked in temporary factory positions and for a cleaning company. In 2014, he obtained a certificate in stone masonry, although the extent to which he worked in this field is unclear. More recently, Mr. Beharry has been living on social assistance.

(iii) Health

[14] Mr. Beharry was involved in two motor vehicle accidents, one when he was 21 years old and one in 2019. He suffers from chronic pain in his neck, shoulder and lower back which affects his ability to work. He has recently undergone physiotherapy which has resulted in some amelioration of his symptoms.

[15] Mr. Beharry told the author of the EPSR that he has been experiencing panic attacks for about seven years, which come on quickly and which are “pretty bad.” He has resisted his family’s advice to seek help for this condition out of a fear of being “labelled.”

II. ANALYSIS

A. General Sentencing Principles

[16] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58:

Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.

[17] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.

B. Gravity of the Offences

[18] The gravity of an offence is a function of the type of offence and the circumstances in which it was committed. Assessing the gravity of the offence will require a consideration of a number of factors, including the blameworthiness of the requisite mens rea, the normative wrongfulness of the conduct, the harmfulness of the conduct and the penalties set out in the Criminal Code: Morris, at paras. 67-68; Friesen, at paras. 75-76. As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases: Morris, at para. 69. However, this does not mean that other objectives such as rehabilitation should become unimportant or be ignored.

[19] The gravity of the offences committed by Mr. Beharry is significant. Like all handguns, the firearm possessed by Mr. Beharry is manufactured for the sole purpose of killing or seriously injuring human beings. It is not incidentally dangerous. Rather, its dangerousness is its very purpose. It is an instrument of death. As explained in Morris, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. …. A person who carries a concealed, loaded handgun in public undermines the community’s sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society: see Nur (ONCA) [2013 ONCA 677, 117 O.R. (3d) 401], at paras. 82, 206; R. v. Felawka, 1993 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214–15.

C. Responsibility of the Offender

(i) Motive

[20] The fact that Mr. Beharry chose to possess a handgun in a loaded state leads inexorably to the inference that he must have contemplated that there may be situations in which he would use it for its intended purpose. The threat his conduct posed to public safety cannot be overstated.

[21] Mr. Beharry told the author of the EPSR that he had possessed the firearm because the “rampant gun violence” in his neighbourhood caused him to have concerns for his personal safety and he believed that having the firearm was an “extra layer of safety for him.” The author of the EPSR described Mr. Beharry’s motivation in the following terms:

Troy expressed remorse for his involvement in the offence and is prepared to take responsibility for his actions. At the core, his decision to obtain a firearm was grounded in his perception of threats within the environments he interacted with. Those dynamics compounded Troy’s issues with anxiety and in his mind, the protection afforded by carrying a firearm provided him with extra security. Troy is aware that his choices have now created much bigger consequences that will affect his life long-term and his ability to progress further in a positive way.

[22] The Crown does not challenge Mr. Beharry’s assertion about his motive for possessing the handgun, and I accept it for what it is worth. Mr. Beharry is not alone in the belief that arming oneself with a firearm is a reasonable way to ensure one’s own safety. It is a belief that includes among its proponents members of the United States Supreme Court, who recently affirmed that the Second Amendment to that country’s Constitution protects every citizen’s right to protect him or herself by carrying a handgun in public: New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. __ (2022).

[23] But Canada is not the United States. Not only is there no constitutional right to possess a handgun, but Parliament has determined that doing so constitutes a serious criminal offence and our courts have long held that it is an offence deserving of significant punishment. As a result, Mr. Beharry’s motive for possessing the firearm has only a limited mitigating effect for the reasons explained in Morris, at para. 101:

It must be stressed, however, that Mr. Morris’s genuine fear, regardless of its cause, is only a limited mitigating factor. He still chose to arm himself in public with a concealed, loaded, deadly weapon. As indicated above, Mr. Morris’s reasons for choosing to arm himself do not detract from the seriousness of the crime he committed. Even if his conduct is made somewhat less blameworthy by the explanation offered for possessing the loaded handgun, Mr. Morris’s conduct still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk.

See also R. v. Boussoulas, 2014 ONSC 1536, at para. 20, aff’d 2018 ONCA 222, 407 C.R.R. (2d) 44.

[24] That said, while Mr. Beharry’s motive has only a limited mitigating effect, it nonetheless distinguishes this case from those where offenders possessed firearms to further some criminal purpose (often drug trafficking), which is a significant aggravating factor. I will elaborate on this point later in these reasons.

(ii) Systemic Factors

[25] The degree of responsibility of the offender also requires a consideration of the offender’s moral blameworthiness in the context of the offender’s background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91.

[26] In Morris, the Ontario Court of Appeal affirmed that systemic and background factors such as those outlined in the EPSR are relevant to an offender’s degree of responsibility if they provide an explanation for the commission of the offence that mitigates the offender’s personal responsibility: Morris, at paras. 91-100.

[27] Mr. Beharry grew up in poverty, mostly without a father. He did not complete his education, leaving him with dim employment prospects. Crime and drug use were commonplace in the area where he lived. His negative experiences with the police likely did little to encourage a respect for the law. Many of these types of disadvantage can be directly linked to systemic anti-Black racism, as was described in a report filed in Morris entitled “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.”[^2] Although no such report was filed in this case, the Court in Morris observed at para. 42 that much of its contents are properly the subject of judicial notice. In fact, the Court stated it “bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders”: Morris, at para. 43.

[28] It is important to note, of course, that none of these background factors serve to excuse Mr. Beharry’s criminal conduct. Mr. Beharry made bad choices and will have to suffer the consequences of doing so. However, a consideration of his choices in the context of his background leads to the conclusion that his degree of responsibility is less than it would have been had his background been different. That is not to say that his degree of responsibility is not significant. It clearly is, although it is mitigated by the systemic and background factors.

D. The Appropriate Range

[29] As was explained by Doherty J.A., writing for the Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51 (aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82), s. 95 offences apply to a wide range of conduct:

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.

[30] Mr. Beharry’s conduct is clearly not in the nature of a regulatory offence. But nor is he an “outlaw” who carried the firearm “as a tool of his criminal trade.” Rather, he falls between the two extremes: R. v. Kongolo, 2022 ONSC 3891, at para. 69; R. v. Marsan, 2020 ONCJ 638, 69 C.R. (7th) 431, at para. 27. Because of this, in my view the sentencing range suggested by the Crown, three and a half to four years, does not apply.

[31] The well established three-to-five year range that is often mentioned in s. 95 sentencing cases applies in situations where “the use and possession of the gun is associated with criminal activity, such as drug trafficking”: R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Marshall, 2014 ONCA 692, at paras. 47-48; Nur (S.C.C.), at para. 82. Lower sentences in the upper reformatory or lower penitentiary range can and have been imposed in cases in the “middle of the spectrum,” that is, where the firearm is not possessed in connection with other criminal activity: R. v. Smickle, 2013 ONCA 678, 2014 ONCA 678, 304 C.C.C. (3d) 371, at para. 30 (additional reasons at 2014 ONCA 49, 306 C.C.C. (3d) 351); R. v. Johnson, 2022 ONSC 2688, at para. 38; R. v. Shomonov, 2016 ONSC 4015, at para. 12; R. v. Downey, 2017 ONCA 789, at paras. 9-12; R. v. Dalton, 2018 ONSC 544, at para. 56; R. v. Filian-Jiminez, 2014 ONCA 601, at para. 2; Kongolo, at para. 74; Boussoulas (S.C.J.), at para. 22.

E. Locating the Sentence Within the Range

(i) Aggravating and Mitigating Factors

[32] Locating this case within the appropriate range requires a consideration of the aggravating and mitigating factors. The obvious aggravating factor is that Mr. Beharry chose to possess a handgun in public while in a motor vehicle. The risk a handgun poses to public safety obviously increases once that handgun is removed from an individual’s home and taken into the community where the person carrying it might interact with other people. The mitigating factors are that Mr. Beharry is a relatively young first offender and has the support of his family.

(ii) “Downes” Credit

[33] Mr. Beharry was released on bail on October 29, 2019 after spending eight days in custody. He was initially subject to house arrest and only permitted to leave his residence in the company of a surety and was not permitted to drive a motor vehicle. He was subject to those conditions for just under seven months, after which his bail was varied and the house arrest restrictions replaced with a curfew.

[34] Time spent subject to restrictive bail conditions should be taken into account: R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33. This is a mitigating factor which must be considered in arriving at a fit sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Courts are not required to quantify a specific amount of credit, and doing so risks skewing the calculation of the ultimate sentence: R. v. Marshall, 2021 ONCA 344, at para. 53. When courts do quantify the credit, it is often between a quarter and a third of the total time spent on bail: R. v. Long, 2021 ONSC 4747, at para. 39; R. v. Navarathinam, 2021 ONSC 4241, at paras. 47-51; R. v. Campbell, 2021 ONSC 4193, at paras. 15-20; R. v. Inshanally, 2021 ONSC 3432, at paras. 35-37.

[35] In this case, I have considered the time Mr. Beharry spent subject to restrictive bail conditions, although I do not intend to assign a specific amount to it.

(iii) The Appropriate Sentence

[36] Having balanced the various aggravating and mitigating factors described earlier, I conclude the appropriate sentence in this case is imprisonment in the range of two years.

[37] In Morris, at para. 180, the Court stated:

When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.

I will accordingly consider the appropriateness of a conditional sentence in this case.

F. Is a Conditional Sentence Appropriate?

(i) Safety of the Community

[38] Section 742.1(a) of the Criminal Code sets out two prerequisites for a conditional sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that it would not in this case. Mr. Beharry has no prior criminal record. He has been on bail since 2019 and has abided by all of the conditions of his recognizance.

(ii) Fundamental Purpose and Principles of Sentencing

[39] The second prerequisite in s. 742.1(a) is that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” As discussed earlier, the fundamental purpose of sentencing as described in s. 718 is “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society” through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation, and “[t]hose objectives will not necessarily point toward the same sentencing disposition”: Morris, at para. 58.

(iii) Sentencing Objectives in This Case

[40] In this case, the nature of the offence makes the objectives of general deterrence and denunciation paramount. However, for the reasons I will explain, rehabilitation is also important in this case.

[41] In Morris, at para. 102, the Court noted that “social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender.” In this case, several factors lead me to conclude that Mr. Beharry is not without rehabilitative potential. He has no prior criminal record. He has abided by his restrictive bail conditions for over two and a half years. He has expressed remorse for his actions and a wish to improve his life. His family is supportive of him and describe his character in positive terms.

[42] It is important not to treat the sentencing objective of rehabilitation as something that benefits only the offender and which is therefore of less importance in cases involving serious offences, where the objectives of denunciation and deterrence are paramount. Most offenders, even those who are sentenced to long terms of imprisonment, are eventually released back into the community, and absent rehabilitation are more likely to commit further offences. Recently, in R. v. Bissonnette, 2022 SCC 23, at para. 48, the court, per Wagner C.J.C., stated:

… [T]he objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law‑abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” (para. 4).

[43] All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing as set out in s. 718 of the Code, which is “to protect society.” Arguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 113-114; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1999), 1997 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23; R. v. McGill, 2016 ONCJ 138, at para. 104; R. v. Reis, 2012 ONCJ 373, at para. 26.

[45] Based on the foregoing, I have concluded that the information in the EPSR provides a basis upon which to give “added weight to the objective of rehabilitation and less weight to the objective of specific deterrence”: Morris, at para. 81.

(iv) Balancing Competing Objectives

[44] Sentencing Mr. Beharry to a term of actual incarceration would undoubtedly give effect to the objectives of general deterrence and denunciation. However, in my view such a sentence would do little to contribute to Mr. Beharry’s rehabilitation and is more likely to hinder it. A conditional sentence, on the other hand, would be beneficial to Mr. Beharry’s rehabilitation. But would it give sufficient effect to the objectives of deterrence and denunciation?

[45] The relationship between conditional sentences and the objective of denunciation was discussed in Proulx, at para. 102:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

A similar point was made with respect to the objective of deterrence (at para. 107):

Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer [(1997 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.)], at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, [Report of the Canadian Sentencing Commission (Ottawa: The Commission, 1987)], at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

[46] It follows from the foregoing that a conditional sentence would be appropriate in this case provided that its terms are sufficiently punitive to give sufficient effect to the objectives of denunciation and deterrence.

[47] In R. v. Desmond-Robinson, 2022 ONCA 369, at para. 13 (rev’g 2020 ONSC 436), the Ontario Court of Appeal recently made it clear that conditional sentences can be appropriate in firearm possession cases:

We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge’s reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.

See also R. v. Warsame, 2022 ONSC 424, at paras. 63-68; R. v. Lewis, 2022 ONSC 1260, at paras. 46-48; R. v. Goodridge, 2022 ONCJ 139, at paras. 57-59.

[48] In my view, given Mr. Beharry’s lack of prior record, his rehabilitative potential, the systemic factors at play in this case, and the fact that the firearm possession was not related to other criminal activity, a conditional sentence is appropriate in this case.

III. DISPOSITION

A. Sentences

[49] Based on the foregoing, on Counts 3 and 4, Mr. Beharry is sentenced to concurrent terms of imprisonment of two years less one day, to be served in the community pursuant to a conditional sentence order on the following conditions in addition to the statutory conditions:

• For the first eight months of the sentence, to remain within 250 metres of his residence at all times, subject to the following exceptions:

o for the purposes of employment;

o attendance at an educational institution at which he is registered;

o to attend any scheduled appointment for himself or his children with a regulated health professional;

o to comply with any terms of this order or direction of his Supervisor;

o for medical emergencies involving himself or members of his immediate family;

o to attend religious services;

o once per week at a time to be specified for a period of four hours for the necessities of life; or

o with the express written permission of his Supervisor;

• For the second eight months of the sentence, to be subject to a curfew between 10:00 p.m. and 6:00 a.m. each day, subject to the same exceptions;

• Not to possess any firearms or weapons as defined by the Criminal Code;

• Attend such counselling as directed by his Supervisor and sign any releases as are necessary to monitor compliance with this condition.

• Perform 75 hours of community service within the first 18 months of the sentence.

[50] At the conclusion of his sentence, Mr. Beharry will be placed on probation for a period of 18 months on the following conditions in addition to the statutory conditions:

• Report forthwith to a probation officer and thereafter as directed;

• Not to possess any firearms or weapons as defined by the Criminal Code:

• Attend such counselling as directed by his probation officer and sign any releases as are necessary to monitor compliance with this condition.

[51] Counts 1 and 2 are stayed pursuant to the rule against multiple convictions: Desmond-Robinson (S.C.J.), at para. 44.

B. Ancillary Orders

[52] Pursuant to s. 109(2) of the Criminal Code, Mr. Beharry is prohibited from possessing firearms and other items described in s. 109(2)(a) for a period of 10 years and the items described in s. 109(2)(b) for life.

[53] Pursuant to s. 487.051(3)(b) of the Criminal Code, Mr. Beharry is ordered to provide a sample of his DNA for inclusion in the national databank.

[54] The victim surcharge payable by virtue of s. 737(1) of the Criminal Code is waived pursuant to s. 737(2.1)(a). Given that Mr. Beharry lives on social assistance, I am satisfied that Mr. Beharry is unable to pay a victim surcharge on account of his precarious financial circumstances.

Justice P.A. Schreck

Released: July 26, 2022