COURT FILE NO.: CR-20-10000140 DATE: 20230623

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MALACHI BROWN Defendant

Counsel: Emma Evans, for the Crown Angela Lepsa and Marianne Salih, for the Defendant

HEARD: January 24 and April 14, 2023

SENTENCING REASONS

Schabas J.

Overview

[1] On December 13, 2023, following a trial, Malachi Brown (aka Malachi Payne) was found guilty by a jury of assault with a weapon and of using an imitation firearm while committing an assault with a weapon contrary to ss. 267(a) and 85(2)(a), respectively, of the Criminal Code. The jury found Malachi, as I will describe him in these Reasons, not guilty of seven other charges, including two counts of assault, break and enter, threatening to cause death and carrying a weapon with intent to commit an indictable offence.

[2] The offences for which Malachi was found guilty are serious. Section 267 carries with it a sentence of up to ten years imprisonment, and s. 85 carries a maximum of fourteen years imprisonment.

[3] Sentencing submissions were made on January 24, 2023. The Crown sought a penitentiary term of four years imprisonment, and certain ancillary orders. The defence sought a conditional sentence. Because of the disparity in positions and the lack of adequate information about Malachi, a 24-year old with no previous criminal record, at the conclusion of the submissions I ordered that a pre-sentence report be prepared. Following the receipt of the pre-sentence report, I heard further submissions from counsel on April 14, 2023.

[4] For the reasons that follow I have concluded that Malachi shall be sentenced to a total of eighteen months imprisonment, but that his sentence shall be served in the community on conditions set out at the end of these Reasons. Upon completion of that sentence, he shall be placed on probation for an additional two years, also on terms set out below.

Circumstances of the Offences

[5] In the fall of 2018, Malachi, then 20 years old, was introduced to the complainant, a 15-year-old girl attending high school. They dated for several months, until the events that are the subject of the charges.

[6] The first charge, common assault, arose from an incident on April 7, 2019. While walking together towards the complainant’s home one afternoon, it was alleged that Malachi pushed the complainant to the ground. The complainant said that Malachi was shoving her around and punched or slapped her on the walk before pushing her onto the ground. She said she sustained a bruise on her right cheek. Malachi denied this, saying that the complainant was pushing and hitting him and that, as it was cold and slippery, they both nearly fell on the sidewalk, but that he prevented her from falling.

[7] The jury was not satisfied beyond a reasonable doubt that Malachi had assaulted the complainant on that day and found him not guilty.

[8] The other eight counts dealt with what happened between Malachi and the complainant on April 11, 2019.

[9] The complainant alleged that Malachi entered her home that afternoon – a house she shared with her mother but where she was by herself that day – by entering the code on the keypad after the complainant did not answer the door when he knocked. The complainant said she did not give Malachi the code but that he must have heard it from one of the complainant’s friends. The complainant alleged that while Malachi was in her home he assaulted her, threatened to kill her, smashed a computer monitor with a hammer, and shot her with a BB, or pellet, gun in the leg. She said the gun looked like a real gun and that she thought she was going to die when he shot it at her. She said he shot it three or four times.

[10] Malachi disputed the complainant’s account. He stated that the complainant opened the door for him to come into the house, and that as he entered he was hit on the back of the head with a baton. He denied threatening to kill the complainant and said that the computer monitor was broken accidentally in a scuffle between the two of them after he ran downstairs to avoid being hit. Malachi denied having a BB gun and shooting the complainant in the leg. To the contrary, he said that he had to use his insulin pen to defend himself from an assault by the complainant.

[11] The following day, April 12, 2019, the complainant spoke to a counsellor at school about what had happened the previous day and showed her a wound to her leg consistent with being shot with a BB gun. The complainant then reported the incident to the police and gave a video-taped statement under oath.

[12] The police attended the complainant’s home on April 13, 2019, and found BBs, or pellets, under the sofa, as well as a mark on the side of a counter consistent with it being hit by a BB. About a year later, when the complainant’s mother moved some furniture, another BB was found on the floor of the apartment. The police also saw that a computer monitor was damaged, as the screen appeared to have been smashed. A hammer was next to the computer monitor but there was no forensic evidence that linked it to Malachi or to the damage caused to the monitor.

[13] It is clear from the jury’s verdict that they did not accept Malachi’s evidence regarding the BB gun, as they found him guilty of assault with a weapon and of using an imitation firearm while committing an assault with a weapon. However, in acquitting him of the other charges, they were not satisfied beyond a reasonable doubt that Malachi broke into the home by entering the key code, or that he assaulted the complainant with his hands, or threatened to kill her, or that he wilfully damaged the complainant’s computer monitor. Further, although the jury found that he had possession of, and used, a BB gun, they were not satisfied that he was carrying it for the purpose of committing an offence as alleged in count 8 of the Indictment.

[14] From the jury verdict, and my assessment of the evidence, I reach the following conclusions. Malachi and the complainant were not getting along. He came to her house on the afternoon of April 11, 2019, where they argued and likely fought with each other. At some point, Malachi pulled out a BB gun and shot the complainant in the leg, causing a minor wound to the complainant’s skin. Following that, the two of them continued to talk and some time later Malachi left the house.

[15] The video interview with the police shows that the complainant was reluctant to tell them what happened. The complainant and Malachi exchanged further text messages, and the complainant attempted to sneak out of her house one night a few days after the incident to see Malachi but was stopped by her father who was sitting in his car outside the house. The complainant and Malachi did not see each other again after the incident on April 11, 2019.

The Multiple Conviction Issue

[16] A preliminary legal issue to be addressed is whether entering convictions on both counts on which Malachi was found guilty would violate the rule against multiple convictions for the same offence as described in Kienapple v. The Queen, [1975] 1 S.C.R. 729.

[17] The two counts on which Malachi was found guilty are as follows:

Count 3

MALACHI BROWN aka MALACHI PAYNE stands further charged that he, on or about the 11th day of April in the year 2019, at the City of Toronto, in the Toronto Region did, in committing an assault on [H.S.], use a weapon, namely an imitation firearm, contrary to section 267 (a) of the Criminal Code.

Count 9

MALACHI BROWN aka MALACHI PAYNE stands further charged that he, on or about the 11th day of April in the year 2019, at the City of Toronto, in the Toronto Region did, use an imitation firearm, while committing an indictable offence under section 267 (a) of the Criminal Code, contrary to section 85(2) (a) of the Criminal Code.

[18] The Kienapple rule is based on the view that “where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences”: R. v. Kinnear, at para. 28. As Dickson C.J.C. stated in R. v. Prince, [1986] 2 S.C.R. 480, at pp. 489-90: “[T]he Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict.”

[19] The Kienapple rule arises where there is both a factual and legal nexus connecting the offences. The factual nexus exists where the charges arise from the same transaction: Kinnear, at para. 32. In this case, the factual nexus is readily seen – both counts address Malachi using a weapon in committing an indictable offence.

[20] However, although a legal nexus exists where the offences “constitute a single wrong or delict”, there are circumstances where the Kienapple rule will not apply: Kinnear, at para. 32. In Prince, Dickson C.J.C. said the legal nexus, or “the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle”: at pp. 498-99. As Doherty J.A. explained in Kinnear, at para. 39:

[The] crucial distinction for the purposes of the application of the Kienapple rule is between different wrongs and the same wrong committed in different ways. If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong.

[21] In R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392, a five-judge panel of the Court of Appeal elaborated on the sufficiency of the legal nexus, observing at para. 33 that it is intended to “ensure that the Kienapple principle is not too easily triggered by the simple finding of a factual nexus.” The Court described a second ground for holding the Kienapple principle is inapplicable:

Parliament is entitled to abrogate the application of the Kienapple rule and to provide for the registration of more than one conviction where offences overlap but where the offender has been guilty of more than one wrong, or to impose an additional penalty for what is, in effect, an aggravated form of the underlying indictable offence. An approach that founds the application of Kienapple on a simple factual connection might well frustrate Parliament's legitimate intentions in that regard. [Citations omitted.]

[22] In Meszaros, the Court concluded that the Kienapple rule would not prevent multiple convictions where an accused was found guilty of assault “while openly wearing or carrying a weapon” under s. 265(1)(c), and with the use of a firearm “while committing an indictable offence” under s. 85(1) of the Criminal Code.

[23] The court reached this conclusion for two reasons.

[24] First, it found that the two offences address different wrongs. In Meszaros, the charge alleged “openly wearing or carrying” the weapon. The Court of Appeal noted at para. 44 that this is not synonymous with “use”, which would involve something more than wearing or carrying the weapon. Even though the offences committed by Meszaros involved using the firearm by firing it, the Court held the offences could be committed in different ways and therefore the legal nexus was not sufficiently established to engage the Kienapple principle.

[25] Second, the Court found that by enacting s. 85 (previously s. 83) of the Criminal Code Parliament intended to displace the operation of Kienapple in these circumstances.

[26] In this case, unlike Meszaros, Malachi is charged in both counts with the “use” of an imitation firearm in committing an assault with a weapon. Both offences involve using a weapon in committing an assault, and in my view cannot be distinguished as they were in Meszaros. However, that is not the end of the analysis.

[27] The second basis for the holding in Meszaros is applicable here. The two counts in question address different societal interests and prohibit additional or different consequences: Kinnear, at para. 39. Meszaros described the enactment of s. 85 as an indication of Parliament’s intention to displace the Kienapple rule. In reaching this conclusion, the Court relied on the earlier decision of R. v. Langevin, at p. 146, where Martin J.A. put it a little differently, stating:

It is clear to me that Parliament intended by s. 83 to repress the use of firearms in the commission of crimes by making such use an offence in its own right, and one which attracts a minimum sentence of one year consecutive to that imposed for the offence which such use accompanies. The use of firearms in the commission of crimes is fraught with danger and gravely disturbing to the community, and Parliament has sought to protect the public from the danger and alarm caused by that use by enacting the present legislation.

[28] Further, as noted in Meszaros, at para. 59, s. 85(3) provided for a mandatory minimum sentence, and although that has recently been repealed, a person convicted under ss. 85(1) or (2) remains subject to a term of imprisonment of up to fourteen years, which is more than the ten-year maximum for an offence under s. 267: Bill C-5, An Act to amend the Criminal Code and the Controlled Drugs and Substances Act (S.C. 2022, c. 15), received Royal Assent on November 17, 2022) (“Bill C-5”). Additionally, s. 85(4) requires that any sentence for an offence under s. 85 be consecutive to “any other punishment imposed on the person for an offence arising out of the same event or series of events.”

[29] In my view, therefore, the Kienapple rule does not apply to prevent convictions under both ss. 267 (a) and 85(2) (a) of the Criminal Code. Convictions shall be entered on both Counts.

The Circumstances of the Defendant

[30] Malachi is now 24 years old. He was born and raised in the Scarborough area of Toronto, and currently lives with his maternal grandmother who, with his mother, raised him as a child. His father played a very limited role in raising Malachi due to substance abuse and psychiatric issues; however, Malachi’s paternal grandfather has been active in Malachi’s life and has been a father figure to him. When Malachi was about 8 or 9, his mother began a relationship with a man who became her husband, who also played a role in Malachi’s childhood. However, when Malachi was about 15 his mother and her husband began spending time in Jamaica and now reside there with their two daughters.

[31] When Malachi was about 16 a close friend was shot and killed. This had a significant impact on Malachi, who began to associate with a negative peer group. He eventually dropped out of school, and for some time lived independently, often “couch surfing” and taking odd jobs. This was his situation at the time of the offences.

[32] After his arrest in April 2019, Malachi lived with a friend’s mother, who was a surety. In March 2023, at the initiative of Malachi and his grandmother, his surety was changed and he now lives with his grandmother, who he describes as his best friend.

[33] Since the charges were laid, Malachi has worked intermittently, but in very limited ways. He has returned to school to obtain his high school diploma, but his efforts there also seem to have been rather limited, at least until recently.

[34] Malachi uses marijuana, but there is no evidence that he uses illicit drugs or abuses alcohol. He has no criminal record, although Crown counsel said he has not been out of trouble since his arrest, as he was charged with some offences in 2021, but the charges were either resolved by way of diversion or withdrawn.

[35] I have been provided with letters of support for Malachi from his mother, grandmother, grandfather, his friend’s mother, a co-worker, and a teacher. All speak to his good character. Several also refer to the fact that Malachi was diagnosed with Type 1 Diabetes when he was very young which he has had to manage all his life. Malachi has also been in a relationship with an age-appropriate girlfriend for the past couple of years. She has regularly attended court with Malachi. His grandparents have also attended some of the court hearings.

[36] The author of the pre-sentence report spoke to many of Malachi’s references and confirmed the family support for him. The probation officer said that Malachi “considers himself as being charismatic, funny and giving.” Malachi told the probation officer that he wishes to start a business and develop his own clothing brand, although beyond examples of some art projects he has recently completed in high school, and having recently registered a business name on April 2, 2023, there was no evidence of any other steps taken to pursue this objective. He has, however, been accepted into a summer program in business at Centennial College.

Applicable Sentencing Principles

[37] Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[38] Sentencing is highly case-specific and must be tailored to the individual circumstances of the accused and the offences. The sentence imposed “ must be proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1 of the Criminal Code. It must also take into account circumstances set out in s. 718.2 of the Criminal Code. These include:

• the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[39] Specific aggravating factors identified in s. 718.2 exist where the victim was under the age of eighteen and the offence arose in the context of an intimate partner relationship. In such cases, emphasis must be placed on denunciation and deterrence: R. v. Cunningham, 2023 ONCA 36, at paras. 23-34; R. v. Triolo, 2017 ONSC 4726, at para. 19. A similar emphasis on denunciation and deterrence must apply for crimes involving guns. I accept that denunciation and deterrence are important factors applicable to this case.

[40] At the same time, however, judges must exercise restraint in imposing imprisonment to ensure that sentences are not “unduly long or harsh.” In cases of first offenders, the Court of Appeal has recently and “repeatedly emphasized the critical role that the principle of restraint plays when sentencing a youthful, first-time offender.” Chief Justice Tulloch observed that “[w]hile the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence” and that “[w]here an offender is young and has never served a period of incarceration, the shortest sentence possible ought to be imposed”: R. v. Francis, 2022 ONCA 729, at para. 80. These considerations must also be applied to this case; Malachi is a youthful, first-time offender, and rehabilitation and accepting responsibility for his actions are important objectives in determining an appropriate sentence.

[41] An additional important factor affecting the sentencing considerations in this case is that Malachi is a young black man. In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, the Court of Appeal recognized the existence and impact of anti-Black racism in our society, and that sentencing courts can take this into account as part of the social context. As the Court stated at para. 79:

The social context evidence can, however, provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

Aggravating and Mitigating Circumstances

[42] There are several aggravating factors in this case. Malachi’s use of an imitation firearm, which struck the victim on the leg, is a serious aggravating factor. Although it was not a real firearm, it had the potential to cause serious injury, and the victim believed it to be a real gun. The fact that Malachi brought the gun into the home, and that the offence was committed in the victim’s home, is also aggravating. The victim was only 15 years old at the time of the offence and had been in a close, boyfriend-girlfriend relationship with Malachi. Malachi’s actions were a very significant breach of trust. Although there was no victim impact statement filed on sentencing, I heard from the victim that this was a traumatic event which has had a lasting impact on her and that she takes medication for anxiety.

[43] Mitigating factors include Malachi’s lack of a criminal record and relative youth, especially his youthfulness at the time of the offence when he was just 20 years old. He has the support of his family. Malachi’s behaviour appears to be out of character, arising from an argument on one occasion that led to the break-up of two young people, and did not involve serious personal injury. I have no basis to conclude Malachi has not been compliant with his bail conditions over the past four years. Although Malachi has not expressed remorse for the incident, that is consistent with his denial at trial; on the other hand, he turned himself in to the police and was cooperative with them. He served four days in pre-trial custody.

Analysis and Determination of a Fit Sentence

[44] Crown counsel has provided me with a number of cases involving firearms and intimate partner violence to support the position that the appropriate sentence should be a penitentiary term of four years. However, I do not find these cases to be particularly apt in this case.

[45] For example, R. v. Melo, 2012 ONCA 562, involved a serious, aggravated, domestic assault in which the accused had planned to kill his wife and was originally charged with attempted murder. R. v. Shears, [2008] O.J. No. 4897 (S.C.), involved convictions for a range of offences by an estranged spouse, including shooting a gun at his former partner. The case was described as one of “extreme spousal abuse”. The accused had a lengthy criminal record. Similarly, the facts in R. v. Trotman, 2008 ABCA 45, 425 A.R. 318 and R. v. Cummings (1993), 106 Nfld. & P.E.I.R. 79 are quite different from the circumstances of this case.

[46] The cases referred to above all dealt with intimate partner violence, which is an important aggravating factor. However, in those cases the relationships were lengthy, involving adults and there were histories of violence and abuse, which differ from the facts before me. On the other hand, I must and do consider the fact that the offences committed by Malachi arose in the context of an intimate partner relationship, in the complainant’s home where she ought to feel safe, and involved a significant breach of trust by Malachi.

[47] One must also bear in mind that many of the more recent cases were decided when there was a mandatory minimum sentence under s. 85(3) of one year for a first offence and three years for a second offence, so conditional sentences were not available for a “serious personal injury offence” committed after November 30, 2007. Now, following recent amendments referred to earlier in these Reasons, conditional sentences are available for these offences: See Criminal Code, ss. 85(3) and 742.1(c) as it appeared on 16 November 2022. Bill C-5, in addition to removing many mandatory minimums, also removed the prohibition on imposing conditional sentences for offences punishable by up to fourteen years or life, making a conditional sentence an available outcome in this case.

[48] There are cases in which accused persons have received conditional sentences for cases involving firearms and imitation firearms. In R. v. Foreman, [2005] O.J. No. 2450 (S.C.), a man fired a BB gun at a woman on a street. He received a suspended sentence, although there were no further aggravating factors, making the case of limited assistance.

[49] Closer to this case is R. v. Robertson, 2017 ABPC 314, in which a Scout Leader shot a 12-year-old under his charge on a trip several times with a pellet gun. The 49-year-old accused pleaded guilty, acknowledged that he had an anger management problem for which he was seeking attention, and had no prior criminal record. He received a conditional sentence.

[50] Other cases involving firearms or imitation firearms in which conditional sentences were imposed include R. v. Ye, 2012 ONSC 1278, R. v. Wainwright, 2016 ONSC 7723, R. v. Riley, 2020 ONSC 6145, and R. v. Bedard, 2011 ONSC 3694. None of them are precisely similar, but they illustrate that denunciation of such offences does not always require the court to impose a custodial sentence. This drives home the point that sentencing is a highly individualized exercise and the range of sentence for the offences in issue in this case is wide.

[51] In Ye, Quigley J. observed, at para. 65, that in sentencing an accused, the court must “strive to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences”, quoting from the Supreme Court decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43, that “no one sentencing objective trumps the others in relative importance.” This point was recently made by the Court of Appeal in R. v. Ali, 2022 ONCA 736, in which the Court of Appeal set aside a custodial sentence in a serious aggravated assault case, holding that the trial judge erred in principle in finding that the level of violence in the case excluded “an appropriately crafted conditional sentence.” Justice Zarnett continued, at paras. 27-28:

Case law establishes that a conditional sentence can provide deterrence and denunciation, and thus may be appropriate for a crime involving violence, such as aggravated assault, even when deterrence and denunciation are paramount considerations. Conditional sentences have been found appropriate in cases when similar, or more extreme, violence has been present compared to what occurred here.

Second, given that a conditional sentence may be appropriate in a case involving violence, and in which it is necessary for the sentence to address denunciation and deterrence, a sentencing judge should determine whether one is appropriate by considering, and weighing, the ability of a conditional sentence to meet the deterrence and denunciation objectives and other relevant sentencing objectives, including restraint and rehabilitation. [Emphasis in original.]

[52] This leads to consideration of the Supreme Court’s decision in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, in which Lamer C.J.C. addressed the sentencing principles in the Criminal Code and, in particular, the nature and availability of a conditional sentence. Under s. 742.1 of the Criminal Code a conditional sentence allowing a person to serve their sentence in the community may be imposed for certain offences where: i) the sentence is less than two years and, ii) the court is “satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”

[53] The conditional sentence regime was introduced in 1996, in large part due to the problem of overincarceration of Indigenous people in Canada, and the concern that prison sentences can be unduly harsh and ineffective in promoting rehabilitation. As Lamer C.J.C. commented in Proulx, at para. 16, “[p]rison has been characterized by some as a finishing school for criminals and as ill-preparing them for reintegration into society.” As an alternative to incarceration, the conditional sentence alternative was established, described by Chief Justice Lamer at paras. 21 and 22 of Proulx:

21…The offenders who meet the criteria of s. 742.1 [the conditional sentencing provisions of the Criminal Code] will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

22 The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence. It is this punitive aspect that distinguishes the conditional sentence from probation…

[54] At para. 102 of Proulx, Lamer C.J.C. recognized that although a jail term provides greater denunciation than a conditional sentence, the punitive aspect of 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.” Accordingly, even in cases where deterrence and denunciation are the paramount sentencing objectives, a conditional sentence may be appropriate, depending on “the nature of the conditions imposed, the duration of the conditional sentence, and the circumstances of the offender and the community in which the conditional sentence is to be served”: Proulx, at para. 114.

[55] The recent decision of the Court of Appeal in Ali underscores the need to consider conditional sentences even where aggravating factors are present. As the Court stated at para. 40, “the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders.”

[56] In this case, Malachi is a first offender. The offence was committed by him when he was 20 years old. That is young. Malachi’s situation when he committed these offences was challenging. Undoubtedly, he was affected by the absence of his mother from a constant role in his life since the age of 15, the death of a friend by violence, and the lack of stability and housing after leaving his grandmother’s home to be on his own without an education or life skills. Malachi struck me as young and immature when he testified, a point consistent with his view of himself, expressed in the pre-sentence report, as “charismatic, funny and loving.” He has much growing up to do, and must learn to take responsibility for his actions if he is to have a productive future. But immaturity is not a reason to send him to jail; quite the contrary. Efforts to help Malachi become a functioning adult are best made in the community, if possible.

[57] Additionally, I am influenced by the fact that Malachi is a young black man who has grown up in the social context of anti-Black racism. He has lost friends to gun violence. This may account for his possession of a pellet gun, or imitation firearm. His circumstances may be due, in part, to “institutional biases and systemic inadequacies” in providing supports to Malachi: Morris, at para. 104. While the social context of anti-Black racism does not mitigate Malachi’s culpability, it is a factor “ which allows for a more informed and accurate assessment of the offender’s background, character and potential when choosing from among available sanctions ….”: Morris, at para. 106.

[58] Malachi has the strong support of his family and his offences appear to have been out of character. His crimes are serious, but arose from one isolated incident in a break-up between two young people, and no significant physical injuries were sustained.

[59] I am satisfied that by serving his sentence in the community Malachi will not endanger the safety of the community. I am also of the view that a conditional sentence will “be more effective than incarceration at achieving the restorative objectives of rehabilitation” and “the promotion of a sense of responsibility” in Malachi: Proulx, at para. 22. A strict, and lengthy, conditional sentence can achieve the goals of denunciation and deterrence. While I have concerns about Malachi’s failure thus far to take responsibility for the offences he has committed, that may be due to his immaturity, which can be better addressed serving his sentence in the community than in a penitentiary. Requiring him to attend school or be employed, and to be under the supervision of family is more likely to lead to a more positive rehabilitation of Malachi than if he were incarcerated. This outcome, it should be added, is also consistent with the principle of restraint which carries special weight here, dealing with a youthful first offender.

Conclusion

[60] In order to comply with s. 85(4) of the Criminal Code, Malachi’s sentence for the offence under s. 85 must be consecutive to the sentence imposed for the other offence. Accordingly, I sentence Malachi to nine months imprisonment for Count 3, and nine months for Count 9, consecutive to the sentence for Count 3. The total sentence, therefore, is eighteen months.

[61] Both sentences are to be served in the community pursuant to s. 742.1 of the Criminal Code, and shall be followed by a period of probation for two years. I note that, together with the four years Malachi has already spent under supervision while on bail, this will amount to seven and a half years during which Malachi will be subject to supervision, and he will continue to be in jeopardy of imprisonment should he violate the conditions of his sentence and terms of his probation.

[62] The terms of the conditional sentence and period of probation shall be as follows:

• Report in person to a conditional sentence supervisor or probation officer forthwith and within 2 working days of this sentence being imposed, and thereafter at all times and places as directed by the conditional sentence supervisor or probation officer to assist in your supervision.
• For the entirety of your conditional sentence and your period of probation you shall:
  • Keep the peace and be of good behaviour;
  • Appear before the court when required to do so;
  • Notify your probation officer of any change of name or address (subject to the approval of place of residence while serving the conditional sentence);
  • Have no contact, directly or indirectly, by any physical, electronic or other means, with the victim, H.S.;
  • Not attend within 100 metres of where H.S. and her mother reside, or attend anywhere you know or have reason to believe H.S. to be present, such as at a school or a place of employment;
  • Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor or probation officer and complete them to the satisfaction of your conditional sentence supervisor or probation officer;
  • You shall sign any release of information forms as will enable your conditional sentence supervisor or probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
  • You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
• For the first nine months of your conditional sentence you shall remain in your residence or on the property of your residence, which shall be the home of your grandmother, Verona Payne, or an address approved by your conditional sentence supervisor, at all times except:
  • Saturdays between the hours of 1 p.m. to 4 p.m. in order to acquire the necessities of life;
  • December 24th, December 25th and January 1st when you are permitted to be outside of your home without a curfew to celebrate the holiday but shall be in the direct and continuous presence of Verona Payne or Lloyd Brown, or another person approved by your conditional sentence supervisor;
  • For any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling);
  • While travelling directly to, directly from and while attending at pre-scheduled legal, medical or dental appointments;
  • While travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs;
  • While travelling directly to, directly from and during the course of your employment, and only if you have provided proof of employment in advance to your conditional sentence supervisor;
  • While travelling directly to, directly from and while attending at your place of education or career counselling, and only if you have provided proof of enrollment in education or career counselling in advance to your conditional sentence supervisor;
  • For carrying out any legal obligations regarding compliance with this conditional sentence order;
  • For the purpose of attending court when required to do so;
  • For any other reason with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during house arrest hours; and
• For the remainder of your conditional sentence you will remain in your residence or on the property of your residence, which shall be the home of your grandmother, Verona Payne, or an address approved by your conditional sentence supervisor, between the hours of 11 p.m. to 6 a.m. daily, except:
  • For any medical emergency involving you or any member of your immediate family (spouse, child, parent or sibling);
  • While travelling directly to, directly from and during the course of your employment if you have provided proof of employment in advance to your conditional sentence supervisor;
  • For any other purpose with the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while out of your residence during curfew hours;
  • For carrying out any legal obligations regarding compliance with this conditional sentence order; and

[63] I also make an order pursuant to s. 109 of the Criminal Code that Malachi not possess any weapons as defined by the Criminal Code for a period of ten years. This includes any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Malachi shall also provide a sample of his bodily substances as may be required for forensic analysis pursuant to s. 487.05(1) of the Criminal Code.

Schabas J.

Released: June 23, 2023