REASONS FOR SENTENCE

Introduction

[1] Shaquane Stewart was found guilty of four counts relating to possession of a loaded prohibited firearm with an over-capacity magazine on or about September 24, 2018.

[2] The circumstances leading to the convictions and my findings of fact are set out in my Reasons for Judgment, reported at 2021 ONSC 8062. In very summary form, the circumstances were as follows. In the course of investigating a shooting (which there is no evidence before me that Mr. Stewart was involved in) police officers made observations of Mr. Stewart and another man which led them to believe the men were armed. When the officers called a takedown and identified themselves as police, Mr. Stewart and the other man ran in opposite directions. Mr. Stewart ran down the street, then jumped a fence into a field connected to a schoolyard. At some point in the schoolyard, he discarded the firearm by throwing it, and continued running. Mr. Stewart ran out the other side of the schoolyard and continued running. Ultimately, he was arrested approximately seven or eight minutes after the police identified themselves, and about two blocks from where the takedown was called.

[3] Police searched for a firearm in the vicinity that evening for about one hour, and found nothing. Because it was dark and beginning to rain, they arranged to resume the search early the next morning. At approximately 7:00 a.m., a firearm was located on the east side of the school, near a door used by janitorial staff, and not far from both a play structure and an entry door to the school. The firearm was to some extent disassembled, with the bottom of the magazine and the spring of the magazine some distance away from the firearm (and from each other), and most of the ammunition also spread on the ground – consistent with the firearm having been thrown and landed with some force.

[4] I now must determine the appropriate sentence for Mr. Stewart.[^1]

Positions of the parties

[5] The Crown seeks a four year penitentiary sentence. According to Crown counsel, a sentence of incarceration of this length is required for purposes of denunciation and general deterrence, given the gravity of the offence. In addition, the Crown seeks three ancillary orders: a DNA order, a weapons prohibition order, and a forfeiture order.

[6] The defence seeks a conditional sentence of imprisonment of two years less a day, followed by probation. The defence does not oppose any of the ancillary orders sought by the Crown.

Principles of sentencing

[7] In determining an appropriate sentence for Mr. Stewart, I must weigh the purposes and principles of sentencing set out in s. 718 of the Criminal Code, as follows:

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;

(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.

[8] I must also have regard to the principles set out in ss. 718.1 and 718.2 of the Criminal Code. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In addition, a sentence should take into consideration the following principles: that any relevant aggravating or mitigating circumstances should be weighed in determining the appropriate sentence; that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances; that where consecutive sentences are imposed, the combined sentence should not be unduly harsh; and that courts should exercise restraint in imposing imprisonment.

[9] I address how these principles should be balanced in this case in more detail below.

[10] As Mr. Stewart is a young Black man, I must also consider the principles that the Court of Appeal recently enunciated in relation to considering social context evidence of systemic anti-Black racism and its impact on an offender as a factor relevant to sentencing in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.

[11] In Morris, the Court of Appeal held that social context evidence relating to the offender’s life experiences may be used, where relevant, to mitigate an offender’s degree of responsibility and/or to assist in the balancing the principles and objectives of sentencing in order to fashion a sentence that best serves the purposes of sentencing as set out in s. 718 of the Criminal Code: Morris at paras. 13, 75-81, 87-107.

[12] Courts may acquire such social context evidence through appropriate judicial notice or through social context evidence, such as an enhanced pre-sentence report (an “EPSR”), describing the existence, causes, and impact of anti-Black racism in Canada and its effect on the offender: Morris at paras. 13, 132-147.

[13] Proportionality, as the fundamental and overarching principle of sentencing, is measured by reference to both the offence and the offender: Morris at paras. 61-66.

[14] The gravity of the offence is assessed based on the normative wrongfulness of the offence. The more serious or grave an offence, the greater the need for denunciation and general deterrence. Morris at paras. 67-72. Evidence of systemic anti-Black racism and its impact on the particular offender does not mitigate the seriousness of an offence.

[15] However, evidence of systemic anti-Black racism and its impact on an offender may be relevant to sentencing in two ways. First, it may be mitigating in relation to assessing the offender’s moral culpability for the offence: Morris at paras. 75-81, 87-101. Second, it may inform how a sentencing judge balances the various sentencing principles in the circumstances of an individual sentencing: Morris at paras. 75-81, 102-107.

[16] Morris also provided specific direction in relation to the consideration of conditional sentences of imprisonment as a sentencing option for young Black men convicted of handgun possession, at paragraphs 131 and 180:

As indicated in R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d) 351, sentences at or just below the two-year mark may be appropriate for some s. 95 offences. When the sentencing judge determines that an appropriate sentence is in that range, counsel and the sentencing judge must fully explore various options which could eliminate or reduce the offender’s period of actual incarceration while still giving effect to the proportionality principle.

Taking into account the mitigating and aggravating factors, we think the trial judge could have imposed a sentence ranging from a sentence at or near the maximum reformatory term, to a penitentiary sentence of three years. 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.

[17] I pause to note that Crown counsel argued that Mr. Stewart’s circumstances were distinguishable from Morris because of the finding made by the sentencing judge in Morris that the offender carried a handgun because of a strong and ever-present fear for his safety in his community, a fear which was found to be linked to anti-Black racism: Morris at paras. 99-100. I disagree that this finding in Morris is a distinguishing factor.

[18] The fundamental principles arising from Morris are that anti-Black racism and its effect on an individual offender may be considered in assessing the moral responsibility of the offender and/or assessing how to blend and weigh the various principles of sentencing in a given case. Those principles have relevance to determining the appropriate sentence for Mr. Stewart.

[19] Further, the fact that there was evidence in Morris from the offender that he carried a handgun because of particular fear of being out in the community, and the link of that fear to systemic anti-Black racism, was ultimately given limited weight in the Court of Appeal’s analysis, as the court expressly stated at para. 101.

[20] Finally, as I will address in more detail in considering the EPSR, there is evidence in this case that Mr. Stewart has directly experienced gun violence to a close member of his family.

Gravity of the offence and aggravating factors

[21] The offences of which Mr. Stewart has been convicted are very serious. A loaded handgun in a public place poses a significant and immediate risk to members of the public. The gravity of this type of offence was concisely stated by the Court of Appeal in Morris at paragraph 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. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. 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), at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15.

[22] The following aggravating factors are present in this case.

[23] The fact that Mr. Stewart possessed the loaded firearm in a public place is an aggravating factor because of the increased risk to members of the public.

[24] The fact that Mr. Stewart fled when confronted by police, and discarded the firearm in a public place, is also an aggravating factor, as it further increases the risk to the public and to police: Morris at paras. 167-72.

[25] The fact that Mr. Stewart had consumed alcohol when he was in possession of the firearm is an aggravating factor. The disinhibition and impaired judgment that accompanies alcohol consumption increases the risks posed by an illegal firearm.

[26] Although not technically an aggravating factor because it is part of one of the counts charged, the fact that the firearm possessed by Mr. Stewart was equipped with an overcapacity magazine is a factor that must be weighed in the assessment of the appropriate sentence.

[27] I want to briefly address two other factors that the Crown argued were aggravating. As I will explain, I find that one is not factually proven on the record, and the other is entitled to limited weight as an aggravating factor in the circumstances.

[28] Crown counsel argued that Mr. Stewart “brandished” the firearm at the officers when they called the takedown and identified themselves as officers. Brandishing implies waving or showing a weapon in a threatening manner.

[29] I made no finding to this effect in my Reasons for Judgment. The trial evidence does not support such a finding.

[30] Indeed, when I queried during sentencing submissions whether the evidence supported the assertion that Mr. Stewart “brandished” the firearm at the officers, Crown counsel walked back his submission to a submission that Mr. Stewart pulled the firearm out of the satchel and put it back in.

[31] In light of discrepancies between the evidence of the two officers who said they saw a firearm just after the takedown was called, and the very brief time in which they made their observation, I found in my Reasons for Judgement that had those observations stood alone, I would not have found them sufficiently reliable to prove possession. However, I found that they were sufficiently reliable in the context of the other circumstantial evidence (in particular the finding of the firearm the next morning in the path where Mr. Stewart had fled) to contribute to the circumstantial evidence proving possession beyond a reasonable doubt. In light of the discrepancies between the officer’s evidence, I was unable and am unable to find that the firearm was pulled all the way out of the bag just after the takedown was called and the officers identified themselves as police. Further, there was no suggestion in their evidence that any attempt was made to gesture towards them with the firearm or point it at them. The officers’ evidence was also clear that this was a very brief observation – one or two seconds at most: see Reasons for Judgment, paras. 38, 41, 120-131.

[32] I made no finding about Mr. Stewart’s purpose in pulling the firearm partially out of the satchel. I find now that the evidence is not sufficient for me to draw any conclusion about why Mr. Stewart pulled the weapon partially out of the satchel. It may have been due to surprise. I am not speculating as to his purpose. My point is simply that the record at trial is insufficient for me to draw any conclusion supporting an aggravating factor from this evidence. The evidence on this issue was led at trial as evidence of observations of part of the weapon for purposes of identifying it, and drawing the circumstantial link (with the whole of the evidence) that it was the same weapon found the next morning. It goes no further than that. I am not satisfied than an aggravating factor has been shown in this regard.

[33] Crown counsel also argued that the fact that the firearm was discarded in a schoolyard is an aggravating factor on sentence. In the circumstances before the court, I find that this factor is entitled to limited weight as an aggravating factor.

[34] First, I note that this was not a premeditated decision by Mr. Stewart to bring a firearm to a schoolyard or to leave it there. He fled from police and discarded the firearm. This was an impulsive act. As I have noted above, the flight and discarding the firearm are aggravating circumstances. But in the circumstances, the fact that it was discarded in a schoolyard adds little to this.

[35] Second, Crown’s theory at trial was that Mr. Stewart was trying to throw the firearm onto the roof of the school. That theory is consistent with the evidence of the way the firearm and magazine were scattered on the ground as if they had been thrown and landed with some force (and with the noise from the security video in evidence at trial). Thus, in addition to there not being a premeditated intention to discard it at a school, based on the trial evidence and the Crown’s theory, the intention (unsuccessful) was to throw the gun onto the roof, where it would not have been accessible, except perhaps to janitorial or maintenance staff.

[36] Third, discarding a firearm in a public place is a risk to the public and an aggravating factor in whatever public place it is where it is left. As noted above, based on Morris, I accept that discarding the firearm in a public place is an aggravating factor. What I reject is that there is significant further aggravating value to the fact that it was discarded in a schoolyard.

[37] As others have observed, there is significant risk to members of the public whenever a firearm is discarded in any public place – whether that public place is a roadway, a sidewalk, or a schoolyard: R. v. Beals, 2015 ONSC 2911 at para. 13; R. v. Samaniego, 2018 ONSC 6785 (affirmed, 2020 ONCA 439, 151 O.R. (3d) 449, and 2022 SCC 9).

[38] Finally, in my view, this factor is already encompassed by the consideration of flight and discarding the firearm as aggravating circumstances in accordance with Morris at paragraphs 167-72. To count as a separate aggravating factor that the place it was discarded was a schoolyard (in the absence of some premeditation in leaving it in a schoolyard) would be to give undue weight and, in effect, to double-count an aggravating factor.

[39] In light of the gravity of the offences, the risk to the public posed by unlawful possession of loaded firearms, particularly in a public place, and the aggravating circumstances I have outlined, I accept that denunciation and general deterrence are factors which must be emphasized in determining the appropriate sentence for Mr. Stewart.

Mitigating factors and background of the offender

[40] I address the mitigating factors and Mr. Stewart’s background together. I begin with the basic mitigating factors, and then consider the greater detail about Mr. Stewart’s background and systemic issues contained in the enhanced pre-sentence report (“EPSR”).

[41] Mr. Stewart had just turned 19 at the time of the offence, and is 23 years old at the time of sentencing. He was, thus, a very young offender.

[42] Mr. Stewart is being sentenced as a first offender.[^2]

[43] Mr. Stewart has strong family support from his mother, sisters, and from the mother of his now three-year-old son. I return to the issue of Mr. Stewart’s relationship with his son below. For now I note that Mr. Stewart’s mother and sisters, and the mother of his son, are all very supportive of him. The family is a close one.

[44] I find that these factors taken together support a finding that Mr. Stewart has good prospects for rehabilitation.

[45] Mr. Stewart is a Black man of Jamaican descent. In this case, an EPSR was prepared by a social worker through the Sentencing and Parole Project (the “SPP”). The SPP is a non-profit organization that prepares EPSRs for Black people marginalized by poverty and racial inequality. The EPSR provides deeper background on Mr. Stewart, and social context evidence in relation to the impact on him of systemic anti-Black racism. I turn to the background provided in that report now. A regular pre-sentence report was also filed (“PSR”); however, it does not contain the level of depth of information or analysis as the EPSR.

[46] Crown counsel, although not challenging admissibility of the EPSR, argued that the court should be cautious about the weight it placed on the EPSR. In Crown counsel’s submission, the content of the report is “largely argument”.

[47] I reject this characterization. I accept, based on Morris, that a social context report of this nature must be balanced and objective. Although the author of the report filed in this case would do well to remove the word “advocate for the client” from her CV in relation to preparation of this type of report, reading the report as a whole, I am satisfied that it presents the information objectively. For example, in various places in the report, the author speaks to the limits of the information she was able to obtain (a particular example is Mr. Stewart’s school records, which were incomplete).

[48] I will not respond to every critique of the report made by Crown counsel in submissions, but I will address a few as examples to explain why I am satisfied that the report presents a balanced picture, sufficiently grounded in both documentary evidence, to the extent it is available, and information provided not only from Mr. Stewart, but from the collateral sources of his family members.

[49] Crown counsel made the submission that the author failed to distinguish between facts and the offender’s perceptions in the report (contrary to the guidance of Morris at para. 145). I reject this submission. The author is very clear, and indeed uses quotations, when she is reporting information provided by Mr. Stewart.

[50] Crown counsel made the submission that the author of the report failed to properly consider information from primary source documents (contrary to the guidance of Morris at para. 146). This submission was made in particular in relation to the author’s conclusions about the failure of the school authorities to follow through on support for Mr. Stewart for his cognitive and intellectual issues when he entered high school. Again, I disagree. The author based these conclusions on a psycho-educational assessment in Mr. Stewart’s school file (not a complete copy, unfortunately), combined with input from Mr. Stewart’s mother and older sisters, her experience as a social worker, and social context evidence of systemic problems that young Black men, unfortunately, often face in school. In summarizing the information available to her and stating her conclusions, the author stated clearly the limits of the records she was able to obtain.

[51] I turn now to the content of the EPSR.

[52] The EPSR contained helpful background in relation to Mr. Stewart’s educational and employment history. As was the case in Morris (at para. 104), the EPSR supports the finding that Mr. Stewart’s educational attainment has been negatively affected by systemic bias in the educational system, and that this in turn has had an impact on his employment history. Thus, his educational attainment to date has been impacted both by a learning disability and by a failure of the educational authorities to provide appropriate supports to address that disability once he reached high school. This context is relevant to assessing his prospects for rehabilitation.

[53] The TDSB school records contained a partial copy of a psycho-educational assessment of Mr. Stewart prepared when he was 11 or 12 years old, and an Individual Education Plan (“IEP”). The psycho-educational assessment showed significant intellectual deficits. It indicated that Mr. Stewart: “had significant difficulties in all areas of his study, with his overall intellectual abilities falling within the minimal range (approximately the 0.5th percentile).” The report also noted “significant difficulties assimilating, consolidating, and organizing verbal knowledge in expressive vocabulary, verbal reasoning, verbal concept formulation, and general knowledge.” In addition, the report noted that his perceptual reasoning skills were within the “very limited range (approximately the 0.5th percentile)” and that “these processes and weaknesses significantly impede [his] ability to organize, plan, and sustain a nonverbal problem-solving approach within the social, emotional, and academic areas.” As noted, he was placed on an IEP. As a result, in elementary school and junior high, he received support in a smaller special-education class, including some one-on-one support.

[54] However, this support appears not to have continued when he started high school. One of Mr. Stewart’s sister’s provided information that his high schools did not make adequate provision for him to succeed on school. Mr. Stewart provided information that he was unaware that his IEP and support should have transferred to high school. He said he missed the smaller classes and one-on-one support he had received in elementary school. He also advised that in elementary school and junior high he was provided a computer equipped with programs to assist with his learning. This was not provided in high school.

[55] The social worker who prepared the EPSR opined that Mr. Stewart’s educational support needs not being met in high school, would have had a significant effect on Mr. Stewart’s progress into adulthood. She also noted that studies of black youth show a common problem that they are often stereotyped and streamed into non-academic programs, and this can lead to failure to address intellectual disabilities. Based on the EPSR, I accept that Mr. Stewart experienced a lack of continuing support for his intellectual disability when he entered high school, and that this lack of support was rooted at least in part in systemic bias. This in turn had an impact on his employment prospects.

[56] Mr. Stewart has not yet completed high school. On his own report in the EPSR, he was transferred from his first high school to a second one due to fighting. He was then expelled from the second high school due to poor attendance. At the time he was charged in this matter, Mr. Stewart was back in school. But then the charges and the pandemic intervened. He has not finished high school at this point, but has a goal of doing so.

[57] Mr. Stewart has worked at a variety of jobs since he was a teenager, although none appear to have been long-term. Over the years his work included working as a dishwasher at a restaurant, at a document storage facility, in construction and auto mechanics for friends and extended family based on informal instruction in these areas. At the outset of the pandemic, he had difficulty maintaining work, and relied on Ontario Works. In a letter submitted to the court at the sentencing hearing, Mr. Stewart explained that he found it very difficult to pursue school or work during the time he was facing the charges before the court, as he has found the process very stressful. However, he recently started working for the father of a friend doing demolition work in construction.

[58] Having laid out these challenges that Mr. Stewart had faced in his education and employment history, I find that he has realistic goals for his future. He is currently working. In the EPSR, he explained to the social worker that he wants to finish high school, work in the trades through an apprenticeship or college program in carpentry, construction, or auto mechanics. He also expressed his desire to stay be involved in his son’s life. In a letter he wrote to the court for the sentencing hearing, Mr. Stewart expressed that he understands the seriousness of the charges he has been found guilty of. He wants to be able to father his son and be a role model for him, and to work and “stay far from getting myself caught up in the system.” Given his young age, despite the fact that Mr. Stewart has had difficulties with consistency in his educational and employment history, I find that he has good prospects for rehabilitation.

[59] The EPSR also speaks to Mr. Stewart’s experience with gun violence. I note in particular that the partner of one of his sisters, Tyrone, was shot and, as a result, paralyzed. Mr. Stewart was 16 or 17 years old when this happened. Tyrone was Mr. Stewart’s only positive role model. I discuss further below that Mr. Stewart grew up without a father figure as his own father was never involved in his life. In Mr. Stewart’s early teen years, Tyrone was a person who played a male role model role in Mr. Stewart’s life; however, the shooting and its impact on Tyrone made Tyrone less present in Mr. Stewart’s life in Mr. Stewart’s later teen years because he was dealing with his own rehabilitation. Thus, the experience of Tyrone being shot and paralyzed was an impact of gun violence on someone very close to Mr. Stewart. One of Mr. Stewart’s sisters describes Mr. Stewart becoming withdrawn and scared in the aftermath of the shooting.

[60] Mr. Stewart also provided information that he had several friends who died from gun violence. However, this information was much less detailed. It may be that the lack of detail is due to Mr. Stewart’s cognitive and intellectual deficits. I have outlined above the results of the psycho-educational assessment conducted when Mr. Stewart was 11 or 12 years old. In addition, the social worker who prepared the EPSR noted that she had difficulty obtaining information from him, and opined that although he is 23 years old, she found in speaking to him that his emotional and cognitive functioning was below that of a 13-year old. Although this provides a probable explanation for the lack of detail, I find it difficult, in the absence of more detail, to give much weight to the information about friends being victims of gun violence. As a result, I give it limited weight.

[61] Mr. Stewart recounted to the social worker who prepared the EPSR that he grew up in subsidized housing for the first nine years of his life. He lived initially in the Jane and Finch community until he was nine years old, and then near Jane and Sheppard until he was 14 years old. He spoke about these neighbourhoods being dangerous, and his mother being very strict not to let him go outside alone. Sometimes he would hear gunshots. I accept this history, and that experiencing this type of fear in his formative years had an impact on Mr. Stewart.

[62] Although Mr. Stewart has no formal mental health diagnoses, he reported to the social worker struggling with depression since his teen years. His mother and sister confirm observing him as “closed-off”, at times jumpy, fearful, and “suffering” mentally an emotionally. The social worker observed signs of “hyper-vigilance” in her meetings with Mr. Stewart (which she describes in detail in the report). In her ultimate conclusion, the social worker opines that Mr. Stewart’s reactions to the shooting of Tyrone and other gun violence he has experienced is indicative of traumatic stress responses. She recommends that he would benefit from long-term psychotherapy, given his history or trauma.

[63] Mr. Stewart’s experiences with gun violence do not justify the offences he committed or reduce their gravity. Mr. Stewart’s actions put the community at significant risk. However, the social context evidence the impact of systemic anti-Black racism on Mr. Stewart, including experiencing systemic bias in the educational system, and growing up with the experience of gun violence is a factor that can be considered in assessing his moral responsibility for his actions: Morris at paras. 76-101.

[64] Another contextual factor which emerges from the EPSR is that Mr. Stewart grew up without significant involvement of his father in his life. As I have noted, Mr. Stewart’s mother and sister are very supportive of him. But it is clear from the EPSR that Mr. Stewart feels the lack of a father figure negatively affected him. He expressed to the social worker being disappointed as a child that his father was not more involved in his life. He also expressed that he thinks had he had a father present in his life, he would have taught him “how to behave.”[^3]

[65] The social worker describes the impact of the absence of his father on Mr. Stewart as in some ways intertwined with his experience growing up in a low income household. Mr. Stewart felt pressure as the only male in the household to take on some of his family’s financial burdens when he was in his teens. At the same time, he lacked a strong adult male role model, and succumbed to negative peer influences. As the EPSR notes, the absence of a father figure was one of a number of risk factors for offending in Mr. Stewart’s upbringing.

[66] Mr. Stewart expressed in the EPSR, and also when he addressed the court at the end of the sentencing hearing, that he wants to break this cycle with his son. As he put it in his address to the court at the end of the sentencing hearing: “My goal is to be there for my son, and that’s it.” To similar effect, he said to the social worker (as reported in the EPSR):

[M.] knows I am his father. I do not want him to grow up in a life like mine. I have to teach him that this is not the lifestyle. I want to raise him into a good man, probably a basketball player. I will make sure that he goes to school, teach him about manners and respect, the kind of people to hang around, and how important it is to respect his mother.

[67] The record before the court is clear that Mr. Stewart is an involved father his son, who is now three years old. This information comes from the EPSR and letters of support from Mr. Stewart’s mother, sisters, the mother of his son. All of them speak very positively of Mr. Stewart as a loving and very involved father, who also provides for his son financially. I note in particular the evidence of Chanel, the mother of his son. She and Mr. Stewart are no longer in a relationship, which gives her some independence of perspective. She describes Mr. Stewart as a loving and very involved father both in her letter to the court, and in her interview with the social worker quoted in the EPSR. I quote several passages from her letter:

Shaquane never misses doctor’s appointments, birthdays, holidays, phone calls, or any important meetings we may have regarding our son. He is a good man and an even better father. . . . Shaquane has taught my son how to count, his colours and has expressed to me that he’d like to teach our son how to play basketball. They also enjoy dancing and listening to music together. [M.] and Shaquane have a bond that I’ll never be able to replicate. Shaquane always knows what toys [M.] will like, what shows will make laugh, and what foods he will eat. Regarding our relationship, he has been there for me throughout my entire pregnancy and every day since my son has been born. We have never had a difficult time co-parenting due to the fact we both agree when something is beneficial or not for our son. He is understanding, calm and respectful.

[68] Weighing the impact of Mr. Stewart’s relationship with his son is a difficult issue. Many offenders, from any type of background, have children. In cases where a sentence of incarceration is an appropriate sentence, it will inevitably impact on the relationship of the offender with their child – likely to the detriment of both the offender and the child. As a result, a sentencing judge must be cautious not to overweight the impact of this factor.

[69] Having said this, as a systemic matter and on the record in this case, it is clear that for Mr. Stewart and other young men in his community, a cycle of absent fathers exists, and is harmful to young men, including Mr. Stewart. In that context, the impact of a term of imprisonment on the relationship between Mr. Stewart and his son is entitled to some weight. I find that it is a factor that, along with his family support, young age, and absence of a criminal record, supports his prospects for rehabilitation. I reach this conclusion because Mr. Stewart’s desire to play a real role in his son’s life is a strong motivation for him to take steps to follow a different path in life than the offences that brought him before the court. Further, to the extent that the EPSR speaks to a generational cycle of absentee fathers having a negative impact on the prospects of young Black men in our community, a sentence which supports Mr. Stewart remaining involved in his son’s life contributes to breaking that cycle.

[70] Morris explains that in order for circumstances related to systemic discrimination to be factor in sentencing, there must be some connection between the offences and the disadvantages the offender faced tied to systemic discrimination. This was stated as follows in Morris (at paras. 76 and 97):

Evidence that an offender’s choices were limited or influenced by his disadvantaged circumstances . . . speaks to the offender’s moral responsibility for his acts.

There must . . . be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.

[71] Based on the factual information in the EPSR, the opinion of the social worker in the EPSR (which I accept), and judicial notice of the nature of system anti-Black racism which I am entitled to rely on according to Morris, I am satisfied that there is a link between disadvantage that Mr. Stewart has faced linked to systemic discrimination and his offending. The ESPR establishes a number of risk factors for offending in Mr. Stewart’s life linked to systemic discrimination. These include growing up in a low income, single-parent household, living in low socio-economic communities, ongoing experiences of witnesses gun violence, insufficient educational support for his intellectual disabilities when he entered high school, leading to difficulties in his education attainment, and an absentee father.

[72] I underline that although disadvantages tied to systemic discrimination faced by Mr. Stewart mean that his moral responsibility for his offences will be assessed differently than for someone without those disadvantages, it does not mean that he is not responsible for his offences. He made a choice to engage in the conduct that brings him before this court. The offences posed a very real risk to the public. But his responsibility for the offences must be viewed through the lens of his background, including the experience of systemic discrimination.

[73] Considering all of these factors together, although Mr. Stewart has faced many challenges in his life, I am satisfied that he has good prospects for rehabilitation. Thus, rehabilitation and restraint are important factors that I must weigh in fashioning and appropriate sentence for him.

Range of sentence

[74] The range of sentence for a first offence of firearm possession offences is sometimes stated as three to five years. However, stating the range in this manner excludes an established range of sentences as low as upper reformatory (including conditional sentences) for young first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking. In general, sentences above three years involve some other criminality, such as drug trafficking, connected to the firearm possession: R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-48; R. v. Graham, 2018 ONSC 6817 at para. 38; R. v. Beharry, 2022 ONSC 4370 at para. 31.

[75] In Morris, the Court of appeal reiterated the importance of denunciation and general deterrence in sentencing for firearm possession offences. For that reasons, the court held that a three-year sentence will be appropriate for the vast majority of s. 95 possession offences. However, the court also held that sentences at or just below the two-year mark may be appropriate for some s. 95 offences: Morris at paras. 71 and 131. See also: R. v. Smickle, 2013 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. Desmond-Robinson, 2022 ONCA 369; R. v. Beharry at para. 31; R. v. Lewis, 2022 ONSC 1260 at para. 34; R. v. Dubois, 2022 ONCJ 88; McLarty-Mathieu, 2022 ONCJ 498.

[76] The Court of Appeal has also recognized that in some cases, particularly those involving young adults with no criminal record and good prospects for rehabilitation, a conditional sentence of imprisonment may be an appropriate sentence even for serious firearm possession offences: Morris at paras. 124-28, 180-81; Desmond-Robinson.

[77] In my view, many of the cases relied on by Crown counsel for a sentence in the range of four years are distinguishable on their facts. Further, they are superseded by the more recent Court of Appeal authority of Morris and Desmond-Robinson in relation to upper reformatory sentences being within the range for young first offenders, where other criminality (such as drug trafficking) is not present.

[78] I will not address every case relied on by Crown counsel expressly, but flag one as an example, Samaniego (SCJ). Crown counsel argued that the four year sentence imposed on a 27-year-old first offender for a first firearms possession offence was sufficiently similar to justify a four year sentence in this case. In Samaniego, the sentencing judge found based on the trial evidence that the accused had threatened a bouncer at a club while armed with a firearm, which he showed to the bouncer while making threats to shoot him: Samaniego (SCJ) at paras. 2 and 41. The act of deliberately threatening to shoot someone while armed with a firearm and showing the person they are armed while making the threats is the type of additional criminality that move a possession offence into the higher above-three-year and up-to-five-year range.

[79] Crown counsel argues that the fact that this case does not involve a guilty plea is a factor that should lead the court to find that a conditional sentence is not appropriate or in the range of appropriate sentences. I do not agree. The fact that Mr. Stewart exercised his right to have a trial means the mitigating effect of a guilty plea is not part of the calculus of crafting an appropriate sentence in this case. However, the absence of that factor does not mean a conditional sentence cannot be appropriate: Desmond-Robinson at paras. 1-4, 13-18; Morris at paras. 2 and 180-81; R. v. Beharry at paras. 2, 48.

[80] In light of these precedents, I am satisfied that the range of sentence for a young first offender for a handgun possession offence, where there is not evidence of other criminality such as drug trafficking, ranges from upper reformatory sentences (including conditional sentences) to three years. Further, having considered the various precedents put before the court, the seriousness of the offence, the aggravating and mitigating circumstances, and the circumstances of Mr. Stewart, I conclude that the appropriate range of sentence for him is in the range of just below or at the two-year mark. Given this finding, in light of the direction in Morris, I consider whether a conditional sentence of imprisonment is appropriate in the circumstances.

The appropriate sentence for Mr. Stewart

[81] I turn then to the appropriate sentence for Mr. Stewart, taking into consideration the gravity of the offence, the aggravating and mitigating circumstances, and the circumstances and background of Mr. Stewart.

[82] In Morris, the Court of Appeal held that where the appropriate sentencing range includes sentences at or below two years, a sentencing judge must give careful consideration to the imposition of a conditional sentence. The court further held that, properly used, conditional sentences “can ameliorate the longstanding problem of the over-incarceration of young Black men”: Morris at para. 180. As I have outlined above, I find that the range of sentence in this case includes the upper reformatory range, particular in light of Mr. Stewart’s young age at the time of the offence, and the fact that he is a first-offender.

[83] A conditional sentence is an available sentence for the offences that Mr. Stewart has been convicted. None of the offences he has been convicted of has a minimum term of imprisonment that has survived constitutional scrutiny. None is a listed offence for which a conditional sentence is unavailable. That leaves two preconditions to imposing a conditional sentence: (i) that a conditional sentence will not endanger the public; and (ii) that a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

[84] I am satisfied that a conditional sentence would not endanger the public. In coming to this conclusion, I have weighed that possession of a loaded handgun in public is a very grave offence and a significant danger to the community. However, Mr. Stewart is a first offender. He was very young at the time of the offence. He has been on bail since the fall of 2018. With the exception of one offence (breach of recognizance which was committed in May 2019, when he was still 19 years old), for which a conditional discharge was imposed, he has no further convictions and has abided by his bail conditions. I have been given little information about the offence for which he was given a conditional discharge, but in light of the sentence imposed (a conditional discharge), I am satisfied in all the circumstances that a conditional sentence would not endanger the community.

[85] I turn then to whether a conditional sentence is consistent with the fundamental purposes and principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.

[86] Sentencing principles often pull in different directions. This case illustrates a not uncommon tension – where the principles of denunciation and deterrence pull in one direction and rehabilitation and restraint in another. I must grapple with the need for general deterrence and denunciation as a result of the public danger posed by handguns, while at the same time giving effect to the principles of restraint and rehabilitation as a result of Mr. Stewart's young age and circumstances. I will consider each of these sentencing objectives, denunciation, general deterrence, rehabilitation, restraint, and also specific deterrence, and the overall weighing.

[87] I begin with the principles of denunciation and general deterrence. Our courts have repeatedly emphasized the importance of denunciation and general deterrence as sentencing objectives when crafting sentenced for firearms possession offences, due to the gravity of offences involving unlawful possession of firearms and the risk such offences pose to the public: Morris at paras. 70-72. Thus, denunciation and general deterrence weigh heavily in the balance in assessing an appropriate sentence for Mr. Stewart.

[88] A central question, then, is whether the objectives of denunciation and general deterrence can be sufficiently achieved by a conditional sentence of imprisonment.

[89] The Supreme Court of Canada and the Ontario Court of Appeal have recognized that appropriately crafted conditional sentences are capable of effecting a significant measure of denunciation and general deterrence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22, 102, 105, 107; Ali at para. 29-33. Both courts also recognized that in some circumstances, the need for denunciation will be so strong that only a sentence of incarceration will suffice. In cases where the various sentencing principles pull in different directions, the sentencing judge must weigh the various objectives in the particular circumstances before the court in order to fashion a fit sentence: Proulx at paras. 81-85, 106, 113-16; Ali at paras. 32-33.

[90] The Supreme Court and the Court of Appeal have recognized that conditional sentences will generally be more effective than incarceration at achieving restorative objectives such as rehabilitation: Proulx at para. 22; Ali at para. 42. This speaks to role of a sentencing judge in balancing the various sentencing objectives to come to a fit sentence in an individual case.

[91] Turning to specific deterrence, in light of the lengthy period of time that Mr. Stewart has been on bail, with only the one incident in May 2019 leading to a conditional discharge, I am satisfied that a sentence of incarceration is not required for purposes of specific deterrence. To the extent that specific deterrence is an issue (which is limited in my view on the record before the court), it can be accomplished by a conditional sentence of imprisonment.

[92] As I have explained above, based on the record before the court, I am satisfied that Mr. Stewart has good prospects for rehabilitation. I am further of the view that, as recognized in Proulx and Ali, the objective of rehabilitation will be better achieved by a sentence that does not remove Mr. Stewart from his community and from family supports. Fundamentally, what Mr. Stewart needs to work on in terms of rehabilitation is his education, and longer-term, more-stable employment. Both of these goals will be better accomplished in the community. I add that it is important to view rehabilitation as a goal that is not only in Mr. Stewart’s interest, but also in the public interest. Whether a conditional sentence is imposed in this case, or a sentence of incarceration, in light of the applicable range of sentence, Mr. Stewart will return to his community. Longer term public safety will be better served by a sentence that assists him to improve his education and work prospects, and gain control over his life as a contributing member of the community: R. v. Bissonnette, 2022 SCC 23 at para. 48.

[93] The principle of restraint carries significant weight in this case, but must be balanced with the primary need for general deterrence, denunciation, and specific deterrence. The principle of restraint is codified in s. 718.2(d) of the Criminal Code, and is well-established in the case law. A sentencing judge must consider all sanctions apart from incarceration, and when incarceration is necessary, a court must impose the shortest sentence of imprisonment that will achieve the various sentencing objectives. The principle of restraint has particular force when sentencing a first-offender: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643 (C.A.), at paras. 32-35; R. v. Ali, 2022 ONCA 736 at paras. 40-42.

[94] Further, in Morris, the Court of Appeal held that the principle of restraint has application to deciding whether a sentence should be one of incarceration or served in the community as a conditional sentence, where a court is of the view that a sentence of less than two years is within the range of appropriate sentence. As noted above, the Court also underlined that, when sentencing young Black offenders, the use of conditional sentences may be a means to address the ongoing systemic problem of over-incarceration on young Black men: Morris at paras. 124-131.

[95] I return to the guidance in Morris at paragraphs 79-80. A sentencing judge is tasked with blending the various sentencing objectives to fashion a fit sentence in the circumstances of an individual case. Social context evidence like the EPSR in this case can inform how a sentencing judge weighs the various sentencing principles.

[96] In light of the gravity of the offences of which Mr. Stewart has been convicted, and their risk to public safety, denunciation and general deterrence must be given significant weight in determining the appropriate sentence. In this case, I find that less weight need be given to the objective of specific deterrence, for reasons I have explained. In light of my finding that Mr. Stewart has good prospects for rehabilitation, rehabilitation and restraint are important sentencing objectives in this case. In my view, giving weight to rehabilitation in the circumstances before the court will better achieve a sentence that addresses the societal disadvantages caused to Mr. Stewart by systemic racism. As I have underlined, the offences of which Mr. Stewart has been convicted are very serious. However, the decisions of Proulx and Morris recognize that appropriate crafted conditional sentences of imprisonment can achieve the objectives of denunciation and general deterrence. And also as recognized by Proulx and Ali, a conditional sentence of imprisonment, while still achieving denunciation and general deterrence, will better achieve the objective of rehabilitation and restorative justice goals, by allowing Mr. Stewart not to be removed from family supports, and work and education in the community.

[97] Further, as was observed in Morris, a sentence in the reformatory range permits the imposition of a term of probation, which has the potential to further rehabilitation and also the long-term safety of the community: Morris at paras. 130-131; 182. A conditional sentence of two years less a day, plus a two or three year term of probation allows as long or longer effective supervision of Mr. Stewart than the four year penitentiary term proposed by the Crown.

[98] Sentencing is one of the most difficult tasks undertaken by a judge. Ranges of sentence are important, because similar offenders who commit similar offences, should receive sentences of some similarity to each other as a matter of fairness (see s. 718.2(b) of the Criminal Code). But ultimately, a sentencing judge’s obligation is to impose a sentence that considers the relevant sentencing principles, and imposes a sentence that is proportionate to the gravity and circumstances of the offence and the circumstances of the offender. Ranges are to be treated as guidelines, not straitjackets: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 53-60; R. v. Lowe, 2018 ONCA 777 at para. 9; Criminal Code, s. 718.1.

[99] In my view, given Mr. Stewart’s lack of a prior criminal record, his young age, his potential for rehabilitation, the systemic factors at play in this case, and the fact that Mr. Stewart’s possession of the firearm was not connected to other criminal activity, a conditional sentence, followed by a term of probation, is appropriate in this case.

[100] I sentence Mr. Stewart as follows:

A conditional sentence of imprisonment to be served in the community of two years less a day on each count, to be served concurrently;
Followed by a two-year term of probation on each count, to be served concurrently.

[101] I also impose the following ancillary orders:

An order to provide a DNA sample, pursuant to s. 487.051(3) of the Criminal Code (applicable to counts #1, #3, #4, which are secondary designated offences);
A weapons prohibition order, pursuant to s. 109(1)(b) of the Criminal Code, for life for the types of weapons and devices listed in both s. 109(2)(a) and (b) (applicable to count #1);
An order of forfeiture of the firearm, magazine, and ammunition seized, pursuant to s. 491(1) of the Criminal Code.

[102] I will address the specific conditions of both the conditional sentence order and probation order orally when I impose sentence. Half of the conditional sentence order will be served under a house arrest condition, and half under a curfew. In addition, as a means of making amends to the community for the offences he committed, the order will require Mr. Stewart to perform 100 hours community service.

[103] I thank to counsel for their assistance throughout the trial and sentencing hearing.

Justice J. Copeland

Released: December 19, 2022

[^1]: In view of my appointment to the Court of Appeal for Ontario after Mr. Stewart was convicted, but prior to sentencing, I conducted the sentencing hearing and impose sentence pursuant to s. 669.3 of the Criminal Code.

[^2]: On September 25, 2020, after the date of this offence, Mr. Stewart pleaded guilty to breach of recognizance. The offence date was May 22, 2019, approximately eight months after the offence for which I am sentencing Mr. Stewart, and three and a half years ago now. He was sentenced to a conditional discharge and 18 months’ probation. As I address further in my analysis, I draw from the fact that a conditional discharge was imposed that the offence was not viewed by the sentencing court as extremely serious. More importantly, in the three and a half years since that offence, Mr. Stewart has complied without incident with his bail. This speaks well to his prospects for rehabilitation.

[^3]: I note that the pre-sentence report contradicts the EPSR on the impact of the absence of his father on Mr. Stewart. In one sentence, it states: “He reported that he does not feel his father’s absence negatively affected his life in any way.” In light of the much greater detail provided on this issue in the EPSR, I find that the contents of the EPSR on this issue are more reliable than the PSR.

R. v. Stewart, 2022 ONSC 6997

Case Summary

REASONS FOR SENTENCE

Introduction

Positions of the parties

Principles of sentencing

Gravity of the offence and aggravating factors

Mitigating factors and background of the offender

Range of sentence

The appropriate sentence for Mr. Stewart

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legal Tests 2

Legislation 7