Court File and Parties

Court File No.: CR-21-822-00 Date: 2023-02-22 Ontario Superior Court of Justice

Between: His Majesty The King – and – Keron Findley

Counsel: R. Tremblay, for the Crown M. Campbell-William, as agent for Defence counsel, Daisey Bygrave

Heard: January 13, 2023

Reasons on Sentence

Mandhane J.

Introduction

[1] On July 18, 2022, immediately before his trial by jury, Keron Findley pleaded guilty to the following offences:

• Possession of a prohibited firearm, a Smith & Wesson .40 caliber handgun, knowing that he did not hold a license or registration certificate, contrary to s. 92(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46;
• Possession of a prohibited firearm, a Smith & Wesson .40 caliber handgun, knowing that its serial number had been removed, contrary to s. 108(1)(b) of the Criminal Code;
• Possession of a firearm, a Winchester Defender 12-gauge shotgun, knowing that he did not hold a license or registration certificate, contrary to s. 92(1) of the Criminal Code; and
• Possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2] Mr. Findley appeared before me for his sentencing hearing. The Crown submits that a sentence of four years (1460 days) is appropriate given that the offences involve the “toxic combination” of guns and drugs. The Crown says that his submission reflects two years imprisonment for the drug-related conviction, plus two years consecutive for the firearms offences. The Crown also asks for mandatory weapons prohibition orders pursuant to s. 109(1)(a) and (d), a forfeiture order pursuant to s. 115, and a DNA order pursuant to 487.051(1).

[3] After accounting for Mr. Findley’s conditions during his pre-trial confinement as well as while he was on bail, the Defence asks for a sentence of three years and seven months (or 1309 days). The Defence does not oppose the ancillary orders.

[4] The parties agree that whatever sentence I impose, I must deduct 216 days to reflect the 144 days that Mr. Findley spent in pre-trial custody at Maplehurst Correctional Complex between September 22, 2019 and February 20, 2020: R. v. Summers, 2014 SCC 26, paras. 27-29.

Overview

[5] Mr. Findley is 37 years old. He was born in Jamaica, immigrated to Brampton when he was six years old, and is a permanent resident of Canada. Mr. Findley and his two sisters were raised by their mother in a loving home, though he has not had any contact with his father since he was five.

[6] In 2001 and 2002, while still a youth, Mr. Findley was convicted of break and enter, fail to comply, possession of a controlled substance, and attempting to obstruct justice. His only criminal conviction as an adult was in 2006 for possession of a controlled substance, for which he was fined $750.

[7] Mr. Findley has worked full-time for the same employer since 2015. He is a metal worker and a member of Ironworkers Union. Mr. Findley has three daughters, ages 15, 8 and 5 years old. Though he does not have primary residency of the children, he gets along with their mother, supports the children financially, sees them regularly, and is generally an involved father.

[8] On September 21, 2019, Mr. Findley was arrested at his residence and charged with possession of cocaine for the purpose of trafficking, along with several firearms offences. During the search of his residence, officers found two handguns, as well as 228 grams of cocaine. Mr. Findley’s arrest was based, in part, on a tip from a confidential informant who, within 45 days of the warrant execution, personally observed Mr. Findley selling cocaine while in possession of a firearm while at the same residence: R. v. Findley, 2022 ONSC 3563, para. 28. Two of Mr. Findley’s children were home at the time of his arrest.

[9] Mr. Findley was detained after a bail hearing on September 25, 2019 and was held in pre-trial custody at Maplehurst until February 11, 2020. While imprisoned at Maplehurst, he was held in institutional lockdown for a total of 20 days (including one period of seven consecutive days).

[10] After a 90-day detention review on February 11, 2020, Mr. Findley was released on house arrest bail with three sureties. He had a 9:00 p.m. curfew and was allowed to leave his residence while accompanied by one of his sureties. On February 14, 2022, Durno J. varied Mr. Findley’s bail conditions such that he was required to reside with his family and abide by an 11:00 p.m. curfew.

Issues

[11] What is the appropriate sentence in light of the gravity of the offence and Mr. Findley’s personal circumstances?

Short Conclusion

[12] A sentence of three years and 10 months (or 1400 days) is appropriate. After deducting 216 days for the time Mr. Findley spent in pre-trial custody, his total sentence will be 1184 days.

Analysis

[13] The fundamental purpose of sentencing is to protect society and contribute “to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code, s. 718. To do this, judges must impose “just sanctions” that reflect one or more traditional sentencing objectives, including denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: s. 718(a)-(f).

[14] Sentencing is highly discretionary, and there is no set formula for fixing the correct sentence: R. v. Parranto, 2021 SCC 46, para. 13. The starting point is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. According to the majority in Parranto at para. 10, “proportionality is the organizing principle” to reach the ultimate goal of imposing a fair, fit and principled sentence. The principles of parity and individualization, while important, are secondary: Parranto, para. 10. As the Supreme Court explained in R. v. Lacasse, 2015 SCC 64, para. 53, “individualization and parity of sentences must be reconciled for a sentence to be proportionate.”

Gravity of the Offence

[15] Mr. Findley pleaded guilty to serious offences involving illegal handguns and a large quantity of cocaine. The guns and ammunition were accessible to the children in the home which increases the gravity of the offence: R v. Mansingh, 2017 ONCA 68, para. 24.

[16] The cases relied upon by both the Defence and Crown point to four years being an appropriate global sentence in light of offences involving the toxic combination of drugs and guns: R. v. Peterkin, 2013 ONSC 2116, paras. 23-24; R. v. Ahmed, 2016 ONCA 831, para. 4; R. v. Bryan, 2011 ONCA 273, para. 1; Mansingh, para. 24; R. v. Morgan, 2021 ONCA 812, para. 20; R. v. Nur, 2013 ONCA 677, para. 206; R. v. Omoragbon, 2020 ONCA 336, paras. 22-23; R. v. Wong, 2012 ONCA 767, para. 8.

Mr. Findley’s circumstances

[17] Mr. Findley’s criminal record is minor and dated. He has worked full-time since 2015. He pleaded guilty prior to his trial and expressed remorse for the impact of his actions on the community during his allocution.

[18] Still, Mr. Findley engaged in drug trafficking for financial gain. He is neither youthful nor an addict. A confidential informant witnessed Mr. Findley engaging in the same conduct on previous occasions at the same residence. Mr. Findley’s cavalier attitude towards the storage of the guns and ammunition means that they were accessible to children and suggests that they were normalized in the family home. This is at odds with the type of father that Mr. Findley aspires to be.

[19] That all being said, I am impressed with Mr. Findley’s level of family and community support. While awaiting his trial, his family and employer pledged significant financial bonds to allow him to live and work in the community. His mother and his current girlfriend both wrote letters of support that spoke to his devotion as a son, brother, cousin, and father. Mr. Findley’s mother wrote that he shares a “tight bond” with his daughters, enjoys spending his time with them, and that the eldest child, who is 15, will particularly miss his guidance and support. His current girlfriend describes him as an amazing and involved father that is kind, patient, and attentive, and who puts their needs above his own. Mr. Findley’s family and friends were present for his sentencing hearing.

[20] In his allocution, Mr. Findley talked about the negative impact of his actions on his community, his family and in particular his children. He acknowledged that he had not set a good example for them. I find that Mr. Findley’s efforts as a father, his remorse in relation to the impact of his crime on the community and his children, and his family support are mitigating factors on sentence.

[21] Mr. Findley spent time in pre-trial custody at Maplehurst. In R. v. Duncan, 2016 ONCA 754, para. 6, the court found that “particularly harsh presentence incarceration conditions” can be a mitigating factor beyond the 1.5 credit referred to in s. 719(3.1). I must consider the “conditions of the presentence incarceration and the impact of those conditions on the accused”: para. 6.

[22] In his affidavit, Mr. Findley stated as follows:

While on lockdown, we could not use the phone, get visits, and we often could not shower. I would call family everyday when not on lockdown so I could speak with my three children, so being on lockdown greatly affected my ability to connect with my children.

We were only allowed to visit a week and I would use as many as I was able to. My mother would come every Sunday that the jail was not on lockdown and various other family members would come another day of the week. If the jail was on lockdown, my family could not come see me. Coupled with the inability to use the phone, having visits cancelled due to the lockdowns also negatively affected my ability to connect with my family.

[23] According to the United Nations Standard Minimum Rules for the Treatment of Prisoners (“Mandela Rules”), prisoners should be allowed to receive visits and communicate with their family and friends at regular intervals (Rule 58), and family contact should only be restricted for a limited time and as strictly required for the maintenance of security and order (Rule 43): UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): resolution adopted by the General Assembly, 8 January 2016, A/RES/70/175. In my view, family support is critical for prisoners in provincial custody, who already have more limited opportunities for rehabilitative programming. In this context, I find that lockdowns have a disproportionate negative impact on prisoners with caregiving responsibilities to young children. Children need routine and consistency; institutional lockdowns interfere with that. Given Mr. Findley’s strong relationships with his mother and children, I find that his experiences of lockdowns had a significant negative impact on his residual liberty and emotional wellbeing. This is a mitigating factor on sentence.

[24] On the other hand, I have considered Mr. Findley’s conditions on bail and find that they were not so onerous as to be mitigating. He lived with his family and worked outside the home. He was not monitored. He was able to see his children regularly. In short, Mr. Findley’s situation is distinguishable from cases of true “house arrest” where the accused cannot leave their home: R. v. Downes, para. 33. Here, Mr. Findley was able to partially reintegrate back into the community while on bail.

[25] Finally, because he is not a Canadian citizen, the Crown conceded that after serving his sentence, Mr. Findley is likely to be removed from Canada: Immigration and Refugee Protection Act, S.C. 2001, c. 27. During his allocution, Mr. Findley was clearly upset about the possibility of a permanent rupture in his relationship with his daughters because of these charges. While collateral immigration consequences are neither mitigating nor aggravating, they are part of personal circumstances of the offender, and may be relevant to the principles of individualization, parity, and rehabilitation: R. v. Pham, 2013 SCC 15, paras. 11-14.

The appropriate sentence

[26] The parties agree that a sentence somewhere in the range of three years and seven months to four years is appropriate given the gravity of the offence and Mr. Findley’s personal circumstances.

[27] A sentence of three years and 10 months (or 1400 days) is proportional in all the circumstances. In arriving at a fit sentence, I have accounted for Mr. Findley’s guilty plea and expression of remorse, his work history, his strong family and community support, and the impact on him of the lockdowns at Maplehurst. While I have considered his restrictive bail conditions and the potential collateral immigration consequences of the sentence imposed, they did not affect the ultimate proportionality of the sentence.

Sentence Imposed

[28] Mr. Findley is sentenced to one year and 10 months imprisonment for possession of cocaine for the purpose of trafficking, plus two years consecutive for the firearms offences. After deducting 216 days for the time Mr. Findley spent in pre-trial custody, his total sentence will be 1184 days.

[29] There will be a mandatory order pursuant to s. 109 of the Criminal Code, prohibiting Mr. Findley from possessing any firearm, other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition, and explosive substance for a period of 10 years, and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[30] There shall be a forfeiture order pursuant to s. 115.

[31] Pursuant to s. 487.051(1), I authorize the taking of samples of bodily substances from Mr. Findley that are reasonably required for the purpose of forensic DNA analysis.

Mandhane J.

Released: February 22, 2023