Court File and Parties

COURT FILE NO.: CR-22-3/080 DATE: 20230905

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - VILROY EDWARDS

Counsel: Pamela Larmondin for the Crown Richard Fedorowicz for Mr. Edwards

HEARD: February 28 and June 22, 2023

REASONS FOR SENTENCE

Corrick J.

Overview

[1] On February 23, 2023, Mr. Edwards pleaded guilty to one count of conspiracy to traffic in a firearm and careless use of a firearm. The matter was adjourned for the preparation of a pre-sentence report. He appears before me today for sentencing.

Facts

[2] During the spring and summer of 2020, Toronto Police intercepted the private communications of Mr. Edwards and others as part of a large-scale investigation into the activities of numerous individuals suspected of trafficking in firearms and drugs.

[3] On April 28, 2020, an individual (“the purchaser”) called Mr. Edwards to enlist his help to purchase a firearm for $2,500.00. Over the next two days, Mr. Edwards arranged and rearranged meetings between the purchaser and a potential seller (‘the seller”) of the firearm. On April 30, 2020, the purchaser bought a Remington, .22 calibre semi-automatic rifle with a sawed-off barrel from the seller.

[4] On May 1, 2020, the purchaser called Mr. Edwards and reported that he had already tried discharging the firearm and that he and a friend were going out again to discharge another round. He invited Mr. Edwards to join them. Mr. Edwards was unable to join them and asked the purchaser to send him a video of the shooting.

[5] The purchaser went to a wooded area, which is surrounded by several multi-unit residential buildings, and discharged the firearm six times. Mr. Edwards remained on the telephone while the purchaser discharged the firearm, giving him advice about the operation of the firearm and firearm safety. Mr. Edwards also instructed the purchaser to collect the spent casings so that they were not later recovered by police. Finally, Mr. Edwards directed the men to take an indirect route back to their residences. Before Mr. Edwards hung up, he reminded the purchaser to send him the video footage.

Positions of the Parties

[6] Ms. Larmondin submits that given the seriousness of the offences, the appropriate sentence in this case is four years in prison less credit for the time Mr. Edwards spent in pre-sentence custody and on bail with very strict conditions. She also seeks an order, pursuant to s. 109(2) of the Criminal Code, prohibiting Mr. Edwards from possessing weapons for a period of ten years. Finally, she seeks an order that Mr. Edwards provide a DNA sample.

[7] Mr. Fedorowicz submits that sixteen months incarceration less credit for pre-sentence custody and strict bail conditions is the fit disposition in all of the circumstances.

[8] Counsel have agreed on the amount of credit Mr. Edwards should be given for pre-sentence custody and for stringent bail conditions. Mr. Edwards spent 58 days in custody, and in accordance with R. v. Summers, 2014 SCC 26, is entitled to 87 days of credit. In addition, Mr. Edwards has been subject to strict house arrest conditions of a judicial interim release order for a total of 1,003 days. Counsel agree that he should receive credit of .25 days for each day for a total credit of 251 days.

[9] In sum, Mr. Edwards is entitled to receive credit of 338 days.

Governing Sentencing Principles

[10] In determining the fit sentence for Mr. Edwards, I am governed by the sentencing principles set out in the Criminal Code.

[11] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility, and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[12] Furthermore, the sentence should be increased or reduced to account for any aggravating or mitigating circumstances related to the offence or the offender. It should also be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Mr. Edwards’s Personal Circumstances

[13] Mr. Edwards is 27 years old. He was 24 at the time of these offences. He resides in Toronto with his partner and six-year-old daughter, together with his mother, grandmother, sister, and brother.

[14] He has limited education, having completed only grade 8. His employment history has been intermittent, working in the entertainment industry for a production company as a stagehand and lighting operator.

[15] Mr. Edwards’s early life was marked by instability, loss, and violence. His parents separated when he was two years old. His mother became involved in an abusive relationship, and Mr. Edwards was exposed to violence in his home. The Children’s Aid Society became involved with the family. When he was four years old, his younger brother was removed from the home. Mr. Edwards was a ward of the Children’s Aid Society for some time while his mother attempted to extricate herself from the abusive relationship.

[16] Many of Mr. Edwards’s formative years were spent living in Clearview Heights, a neighbourhood in Toronto plagued with gun violence. He has witnessed neighbourhood shootings, and at the age of 16 was taken at gunpoint from his home. Last year, his 19-year-old brother was shot and killed.

[17] Mr. Edwards has no criminal record. Since his release in October 2020, he has abided by very strict bail conditions without incident. As he proved himself able to comply with conditions, they were relaxed with the consent of the Crown. While on release, Mr. Edwards participated in a fourteen-week program run by the John Howard Society designed to assist young people to navigate the labour market and gain sustained employment.

Range of Sentence

[18] Trafficking in a firearm carries a maximum sentence of ten years in prison and a mandatory minimum sentence of three years for a first offence: s. 99(2) of the Criminal Code. The mandatory minimum sentence has been declared unconstitutional and of no force and effect in several decisions of the Ontario Superior Court of Justice. (See R. v. Hussain, 2015 ONSC 7115; R. v. Harriott, 2017 ONSC 3393; R. v. Sauve, 2018 ONSC 7375; R. v. De Vos, 2018 ONSC 6813; R. v. Wetelainen, 2019 ONSC 869). I am bound to follow those decisions unless I conclude that they are plainly wrong: R. v. Sullivan, 2020 ONCA 333, at para. 38. Ms. Larmondin did not argue that the cases were wrongly decided but indicated that it remains the Crown’s position that the three-year mandatory minimum sentence should still be applied.

[19] The maximum sentence for a first offence of careless use of a firearm is two years in prison.

[20] To determine the appropriate sentence, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I am mindful, however, of Chief Justice Lamer’s caution that, “… the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction:” R. v. M. (C.A.), [1996] 1 SCR 500, at para. 92.

[21] Crown and defence counsel provided me with decisions in support of their positions. I am not going to refer to all of them in detail, but I have reviewed them.

[22] Many of the decisions referred to by Crown counsel involved individuals selling firearms for profit. (See R. v. Villella, [2006] O.J. No. 4690 (S.C.J.); R. v. Bishop, 2021 ONSC 4545; R. v. Datta, 2021 ONSC 2136; R. v. Waldron, 2015 ONCA 586). Many of them involved individuals with criminal records. (See R. v. Hersi, 2015 ONSC 5378; R. v. Hamilton, 2011 ONSC 4813; R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.); R v. Hanse, 2019 ONSC 1640). Many of them involved individuals trafficking in multiple firearms and individuals also engaged in the drug trade. (See R. v. Villella; R. v. Abdi, 2015 ONSC 5800; R. v. Bishop; R. v. Hersi). These are significant aggravating factors that are not present in this case.

[23] Defence counsel has referred me to several cases involving individuals convicted of trafficking in firearms who received prison sentences substantially less than four years. There are significant mitigating factors in those cases that are not present in this case and none of those cases involved trafficking in a firearm together with careless use of a firearm.

[24] I was the sentencing judge in two of the cases. In R. v. Cumsille, 2022 ONSC 121, the offender pretended to agree to transfer a firearm to someone without ever intending to do so. In R. v. De Vos, 2018 ONSC 6813, the offender transferred three firearms to an individual who threatened to kill or harm him or his family if he did not do so. Although I rejected the defence of duress at trial, I found that the offender reasonably believed that the threats would be carried out.

[25] In R. v. Sauve, 2018 ONSC 7375, the offender drove his friend from Ottawa to Cornwall to pick up a firearm. The trial judge found that there was no evidence that the offender profited from the offence or that he had made any of the arrangements for his friend to obtain it.

[26] The circumstances of any case, including this one, can be readily distinguished from any other case. Sentencing is not a precise science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. Despite this, prior decisions assist in determining the appropriate range of sentence and the principles that must guide my decision.

[27] What is clear from the jurisprudence is that a conviction for trafficking in firearms will attract a substantial prison term. The danger that firearms pose to the safety and security of our community demands an emphasis on denunciation, specific and general deterrence, and protection of the public.

[28] I turn now to consider the aggravating and mitigating circumstances of this case. First the aggravating circumstances.

Aggravating Circumstances

1. The nature of the firearm involved. It was a semi-automatic sawed-off rifle with a magazine that held twenty rounds, an extremely dangerous weapon on the street. As Mr. Edwards explained to the purchaser of the firearm, “as fast as you squeeze, as fast as it comes.”
2. These offences were not the product of a momentary lapse of judgment on Mr. Edwards’s part. Unlike the offender in R. v. Sauve, Mr. Edwards was intricately involved in arranging the purchase of this firearm. When the purchaser was unable to contact the seller, Mr. Edwards intervened to put the parties together. Later in the transaction, when the purchaser failed to meet the seller as agreed, Mr. Edwards again became involved to ensure that the transaction was completed. Once the sale was made, Mr. Edwards continued to be involved, instructing, and advising the purchaser on the use of the firearm and the ways to avoid detection by the police.
3. The firearm was discharged six times just after midnight on a Friday evening in May in an area surrounded by eleven multi-unit residential buildings. The inherent danger in this conduct and the risk it posed to the safety of the community cannot be overstated.
4. Toronto is plagued by gun violence. One hears and reads about the catastrophic effects of the proliferation of handguns in Toronto almost daily. Lives are wasted or forever altered. Any contribution to the distribution of firearms threatens the security and safety of the community and is a serious matter.

Mitigating Circumstances

[29] There are also several mitigating circumstances that I have considered.

1. Mr. Edwards is a first offender. He was not a youth when he committed these offences, but he was young at only 24 years of age.
2. Mr. Edwards pleaded guilty. His plea is evidence that he has accepted responsibility for his crimes and is remorseful. He also accepted responsibility and indicated that he regretted his actions in a statement to the court, which I accept as genuine. Although his plea was not entered early in the proceedings, it has saved the time and resources that would have been necessary to conduct a trial. This is significant given the backlog of criminal trials in Toronto that has developed over the course of the pandemic. Mr. Edwards’s guilty plea, acceptance of responsibility and remorse are mitigating circumstances deserving of credit.
3. Mr. Edwards has spent nearly three years on judicial interim release without incident. This is evidence that he is capable of living a pro-social life and is at low risk of reoffending. The death of his brother by gun violence has had a significant impact on Mr. Edwards and caused him to reflect on his actions. He told the court that he now feels that “enough is enough, let’s put the guns down.”
4. Mr. Edwards has support in the community to assist him in his rehabilitation. He continues to reside with members of his immediate and extended family. His mother and partner have indicated their ongoing support for him. Mr. Edwards told the court that he is motivated to become a role model for his daughter.

Determination of a Fit Sentence

[30] Mr. Edwards is an intelligent young man with strong rehabilitative prospects. He has grown up without the advantages of a stable home life and good role models in a community where the possession and use of firearms is prevalent. Despite this, he appears before the court at age 27 without a criminal record.

[31] The circumstances in which Mr. Edwards grew up and his life experiences must be considered when determining the appropriate disposition: R v. Ipeelee, 2012 SCC 13, at para. 75. They do not reduce the seriousness of the crimes he has committed or justify his conduct, but they do mitigate his personal culpability to some extent.

[32] I agree with Mr. Fedorowicz that the principle of restraint must be considered in this case. It is relevant for a number of reasons. First, Mr. Edwards is a young first offender and any period of incarceration imposed on him should be as short as possible, while still satisfying the principles of deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, at para. 35.

[33] Second, Mr. Edwards is a young black man. I am required to bear in mind the well-established over-incarceration of young black male offenders when determining the fit sentence: R. v. Morris, 2021 ONCA 680, at para. 123.

[34] As I have already indicated, the paramount sentencing principles in this case are denunciation and deterrence. Rehabilitation, however, cannot be overlooked given the personal circumstances of Mr. Edwards.

[35] In my view, a total sentence of four years as suggested by Ms. Larmondin emphasizes denunciation and deterrence at the expense of rehabilitation. The sixteen-month sentence suggested by Mr. Fedorowicz does not adequately satisfy the principles of deterrence and denunciation.

[36] In all of the circumstances of this case, in my view, the appropriate disposition before giving Mr. Edwards credit for the time he spent in pre-sentence custody and subjected to stringent conditions of release, is a total sentence of 912 days. This is a significant prison sentence for a first offender. It reflects the serious crimes he has committed and addresses the applicable sentencing principles and the aggravating and mitigating circumstances.

[37] Mr. Edwards is entitled to be credited 338 days, leaving him with 574 days left to serve.

[38] I recognize that the firearms trafficking offence and the careless use offence are separate offences that would generally attract consecutive sentences. However, giving effect to the totality principle, I will break the sentence down as follows:

Count 3 – firearms trafficking – 912 days Count 10 – careless use of a firearm – 18 months concurrent.

Ancillary Orders

[39] There will be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Edwards from possessing any weapons for 10 years and an order pursuant to s. 487.051 of the Criminal Code that Mr. Edwards provide a sample of bodily substances for the purpose of forensic DNA analysis.

Corrick J.

Released: September 5, 2023