COURT FILE NO.: CR-22-10000558-0000 DATE: 20230915

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KYLE MARIER

Counsel: Brigid McCallum, for the Crown Ryan Handlarski, for the Accused

HEARD: July 27, 2023

REASONS ON SENTENCE

GARTON J.

Factual Background

[1] On October 11, 2022, Kyle Marier pleaded guilty to possession of a loaded prohibited firearm without a licence contrary to s. 95(1) of the Criminal Code. The case was adjourned so that an Enhanced Pre-Sentence Report (“EPSR”) could be prepared, which took about nine-and-a-half months to complete. Counsel made their sentencing submissions on July 27, 2023.

[2] The circumstances of the offence are as follows.

[3] On July 23, 2019, investigators from the Human Trafficking Enforcement Team were in the area of 39 Kenton Drive to effect the arrest of Mr. Marier and to execute two search warrants. The first warrant was to search Mr. Marier’s house, located at 39 Kenton Drive, where he lived with his parents. The second warrant was to search his vehicle, a black Volkswagen Jetta. Mr. Marier was wanted on human trafficking and firearm-related charges that took place in late June 2019.

[4] At 11:40 p.m. on July 23, 2019, investigators observed Mr. Marier exit his house. He was wearing a light-coloured hoody and had a satchel on him. Mr. Marier crossed the street from 39 Kenton Drive and walked in the direction of his car, which was parked behind the Kenton Learning Centre. When he rounded the corner of the building and saw two police officers, Mr. Marier turned and fled.

[5] Mr. Marier ran back through the learning centre parking lot, crossed Kenton Drive, and continued running south through the back yard of 33 Kenton Drive. Investigators followed him but could not find him. Subsequently, a perimeter was set up. The K-9 Unit and a team from the Emergency Task Force (“ETF”) was brought in. The dog from the K-9 Unit eventually located Mr. Marier in the backyard of 43 Kenton Drive, where he was hiding under a tree. ETF officers executed his arrest. Following the arrest, the dog retrieved Mr. Marier’s cell phone, which was under the same tree where he had been hiding.

[6] At the time of his arrest, Mr. Marier no longer had the satchel on his person. He was transported to 32 Division to be processed and brought before a Justice of the Peace.

[7] At approximately 10:15 a.m. on July 24, 2019, an officer from 32 Division received a call from a citizen who resided at 35 Kenton Drive. The citizen reported having found a satchel containing a firearm in their backyard. Officers attended and seized the weapon.

[8] This was the same orange-coloured satchel that Mr. Marier was wearing at the time of the foot pursuit. The firearm is a Smith & Wesson SD9VE 9mm handgun, which is a prohibited firearm under the Criminal Code. It was loaded with approximately 10 rounds of 9mm Lugar Blaze ammunition.

[9] Mr. Marier had tossed the satchel containing the loaded handgun over the backyard fence of 35 Kenton Drive, presumably while running through the back yard of 33 Kenton Drive as he fled from the police. He was not the holder of an authorization or license permitting him to possess any firearm nor did he have a registration certificate for any firearm.

[10] Mr. Marier’s DNA could not be excluded from a DNA sample discovered on the seized firearm. He also had videos on his cell phone of a firearm that was the same make and model as the firearm in his satchel. He is seen displaying it on a number of occasions – brandishing it while drinking, while in his car (although not driving), and while on bail for another offence.

[11] On April 23, 2019, Mr. Marier had appeared before the Ontario Court of Justice in Richmond Hill and was later released on a recognizance. The conditions of the recognizance included a term that he not possess any weapon as defined by the Criminal Code, for example but not restricted to a pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition, or explosive substance, or anything designed to be used or intended for use to cause death or injury, or to threaten or intimidate any person.

Position of the Parties

[12] The Crown submits that Mr. Marier should be sentenced to 34 months imprisonment, which includes credit given for time spent while on bail under a condition of house arrest, pursuant to R. v. Downes (2006), 2006 ONCA 3957, 79 O.R. (3d) 321 (C.A.). Crown counsel submits that such a sentence is necessary in order to give effect to the sentencing objectives of general deterrence and denunciation, which are paramount in cases such as this.

[13] Counsel for Mr. Marier submits that the appropriate sentence is a conditional sentence of 18 months, followed by one year of probation. This would take into account Mr. Marier’s background, the circumstances of the offence, the delay that the defence submits was caused by the Crown’s decision to prefer the indictment, the time that Mr. Marier spent in pre-trial custody, and the four years and one month that Mr. Marier has been on house arrest with electronic monitoring. The defence also relies on mitigating factors that support the imposition of a conditional sentence: first, Mr. Marier’s efforts toward, and prospects of, rehabilitation and second, the issue of overincarceration of Black males and systemic racism.

Circumstances of the Offender

[14] Mr. Marier, who is 23 years old, was 19 at the time of this offence. He has no prior criminal record.

[15] The EPSR was prepared by a social worker, Dr. Camisha Sibblis, who interviewed Mr. Marier, his parents, and his older sister, Nikelle. Her report reviews the family history and includes Mr. Marier’s reports of experiencing systemic racism as he was growing up. Dr. Sibblis was the author of the EPSR in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, where the Court found that such reports are admissible on sentencing, even if much of the information is hearsay. Trial judges can rely on that information if they conclude that it is credible and trustworthy: Morris, at para. 135, citing R. v. Gardiner, 1982 SCC 30, [1982] 2 S.C.R. 368, 140 D.L.R. (3d) 612, at p. 414.

[16] As in Morris, much of the information contained in the report in the present case is hearsay. Dr. Sibblis was not cross-examined in regard to her report. However, there are some concerns with respect to the accuracy or completeness of some of the information provided to her by Mr. Marier. What follows is a summary of the information contained in the report.

[17] Both of Mr. Marier’s parents immigrated to Canada from Jamaica. His mother, Christine Marier, arrived here at the age of 5. His father, Michael Marier, arrived when he was 12 years old. Mrs. Marier is described as a “mixed race, white presenting” Jamaican. Michael Marier is Black. They have two mixed-race children – the accused, Kyle Marier, and his sister, Nikelle, who is 26 years old. Nikelle is employed as a flight attendant, and currently studying to be a naturopath.

[18] Christine Marier is employed as a psychiatric nurse at the Centre for Addiction and Mental Health (“CAMH”). Michael Marier builds and renovates houses for a living. In 2000, which was the year that Mr. Marier was born, they purchased what Christine Marier describes as their “dream house” in an upper middle-class neighbourhood that is populated mainly by White and Asian residents. The Marier family continues to reside there.

[19] Christine Marier reported that her father is a White Jamaican of Jewish heritage. Her mother, who is of Syrian, Black, and White descent, was never accepted by her father’s family because of her darker skin colour. Christine Marier recalls being explicitly told not to associate with Black people. Her parents divorced shortly after immigrating to Canada.

[20] Prior to his marriage to Christine Marier, Michael Marier had three biological children to different women, who are described as White or White-passing. The children – two sons and a daughter – resided with their respective mothers in the Regent Park area of Toronto.

[21] Michael Marier reported that he initially wanted all of his children to be close, but was cautious about their interaction because of the environments in which his extra-marital children were being raised. He ultimately decided to keep Mr. Marier and Nikelle away from their half-siblings unless he was able to personally supervise their interaction in order to protect them. He was also concerned that the mothers of his other children were jealous of Christine Marier, and that they would cause emotional harm to Kyle and Nikelle. Kyle Marier told Dr. Sibblis that when they visited their much older half-brothers, the brothers would offer him and Nikelle alcohol, even though they were underage.

[22] Michael Marier reported that he experienced a lot of anti-Black racism during his youth after arriving in Canada. However, he always returned home to the unconditional love and support of his stepfather, Robert Marier, who is White and with whom Michael Marier has always felt very close. Michael Marier explained that his mother and father separated shortly after coming to Toronto and by the time he joined them here, his mother had married his stepfather.

[23] Michael Marier reported that he had no Black peers prior to attending secondary school. It was only after meeting other Black Jamaican students in high school that he started getting into trouble, sometimes by mere association with them. Michael Marier feared that his son Kyle would suffer the same fate if he began to integrate with Black children.

[24] When Mr. Marier was 12 years old, his 26-year-old half-brother was shot and killed. His other half-brother, who was 29 years old, was involved with the criminal justice system and was the subject of an arrest warrant for murder. Mr. Marier’s half-sister became an exotic dancer who was partnered with a drug dealer.

[25] Michael Marier told Dr. Sibblis that when his son was killed, he isolated himself in his grief and failed to consider how the trauma and loss impacted other members of the family, including his son Kyle.

[26] Nikelle Marier describes herself as “mixed” or bi-racial, which she considers to be different from being Black or fully Black. However, she reported that she and Mr. Marier were the only children in their neighbourhood and their school who could be considered to be Black. Nikelle stated that both she and Mr. Marier suffered from an identity crisis in the sense that they struggled with how to be Black and what it meant to be Black. Their parents sheltered them because of their own hardships growing up. They were also isolated from their half-siblings because they were considered to be bad influences on them. As a result, Nikelle was not close to her half-siblings. Her understanding and that of Mr. Marier of what it meant to be Black came from popular media.

[27] After their half-brother was murdered, the family’s relationship with Mr. Marier became strained because their parents were consumed by grief and worried that he might end up with the same fate. They became even more overprotective. They constantly discussed murders and shootings, which caused Nikelle to plug in her headphones and retreat to her room. Nikelle reported that despite her successes, when her parents felt threatened by some of her choices, they would overreact and try to deter her with warnings that she would “end up a stripper and on drugs.”

[28] Nikelle strongly believes that the only reason that she did not go down a destructive path was because she found respite from her parents through her friend’s family, whom she had known from the age of five. Her friend’s mother was “a voice of reason.” Nikelle opined that her brother had lost his way because he lacked that type of “saviour” and connection in his life. Christine Marier over-compensated by helping Mr. Marier to complete his homework and by “advocating for him with school.” Nikelle was of the view that her mother’s focus was misdirected.

[29] Christine Marier reported that she has regrets about her and her husband’s parenting style and the “stifling of her son’s emotional expression.” However, during the time that he has been on house arrest, she has been spending time with him and rebuilding their relationship.

[30] Nikelle described Mr. Marier as a happy and playful child with whom she was close. However, he became reclusive as a teenager, as did she. Nikelle witnessed some of Mr. Marier’s experiences with racism, such as being followed in stores by security and having his money scrutinized as counterfeit.

[31] Mr. Marier was athletic as a pre-teen and teenager, playing both hockey and football. Unfortunately, he suffered five concussions between 2010 and 2013 while playing these contact sports. He later switched to track and field, where he excelled particularly in the 100-meter dash. More recently, in November 2022 and while on house arrest, Mr. Marier’s bail conditions were varied to allow him to attend a boxing gym between specified hours. Mr. Marier explained at an earlier voir dire that in light of his history of concussions, the boxing only involved general conditioning and touch sparring, as opposed to full contact sparring.

[32] Mr. Marier reported that he had headaches and difficulty concentrating in school as a result of the concussions and that he felt anxious and suicidal. Dr. Sibblis states that Mr. Marier’s absenteeism from school became a regular occurrence in 2016. He began seeing a psychiatrist on a weekly basis when he was 16 or 17 years old. He was diagnosed with Post Traumatic Stress Disorder and Attention Deficit/Hyperactivity Disorder (“ADHD”). He was prescribed medication for depression, anxiety, and difficulty in sleeping. However, he stopped taking these medications after experiencing certain side effects. It appears from Dr. Sibblis’ report that Mr. Marier was in Grade 11 when he was seeing a psychiatrist and that he also quit school that year.

[33] Christine Marier reported that when Mr. Marier was a young child, it was suggested to her, presumably by one of his teachers, that he had ADHD. However, Christine Marier resisted that diagnosis because she was concerned that it would lead to Mr. Marier being “limited by the education system.”

[34] Mr. Marier reported that his first encounter with racism in elementary school occurred when he was in French Immersion. The incident involved another child telling Mr. Marier that his parents would not let him play with him because he was Black. There were very few Black students at the school. Mr. Marier reported that he would sit at the back of the class and that no one spoke to him. He was teased about his hair and his complexion.

[35] Mr. Marier also felt alienated in his neighbourhood, where the residents were primarily White or Asian. He claimed that women would clutch their purses when he was near and that people crossed the street to avoid walking next to him. He was accused of criminal activity by neighbours when he was out jogging. Peers and family members alike made fun of his hair. His features were too Black for his non-Black peers and not Black enough for some of his family members.

[36] Mr. Marier was offered a scholarship to attend a private school when he was entering Grade 10. However, he rejected the scholarship on the basis that he would have been one of only a few Black students at the school. He attended Earl Haig Secondary School for a while but left because of its limited number of Black students. He subsequently transferred to Northview Heights Secondary School where he had many more Black peers. Mr. Marier reported that he was not discerning in his choice of Black friends at Northern Heights. He simply wanted Black friends, and started hanging out with older boys, many of whom were involved in illegal activity. Mr. Marier realizes now that they were not good friends. He began to do the things that they were doing because he wanted to fit in. He also started to braid his hair to look more like his deceased half-brother.

Police Interaction

[37] Mr. Marier reported that he had numerous negative encounters with the police, which caused him to distrust law enforcement. Examples of some of these encounters listed by Dr. Sibblis included the following:

• Police officers who were assigned to Earl Haig and Northern Heights would routinely check his bag at school;
• Police officers would occasionally stop him in his own neighbourhood when he was walking home late at night from the bus stop and question him about his whereabouts and his reasons for being in the (affluent) neighbourhood;
• When he was in the sixth grade, the police were called when he was seen taking some clothes from a clothesline as a joke; and
• When he and some of his non-Black friends were in a grocery store, he was singled out by security, detained, and accused of stealing an item when it was one of his friends who had committed the theft. The police, Mr. Marier’s mother, and his school were contacted. As a result of this allegation, he was banned for a year from attending the plaza where the grocery store was located.

[38] Mr. Marier told Dr. Sibblis that when he was 16 years old, the police pointed a gun to his head when arresting him for stealing a phone charger at a convenience store. During the voir dire on March 9, 2022, Mr. Marier gave more details of this incident. He testified that he was in the store with a Black acquaintance when the acquaintance stole the charger. The store clerk called the police. The officer who arrived on scene initially pointed his gun at Mr. Marier but was then advised by the clerk that the real culprit was the Black acquaintance. Mr. Marier was never arrested in regard to this incident, although it was undoubtedly a distressing event in his life.

[39] In listing Mr. Marier’s “numerous negative encounters with the police,” Dr. Sibblis included the following entry: “Police pointed assault weapons with laser lights at his head and chest, yelling: ‘Put your hands on your head!’ and ‘Get on your knees!’” Dr. Sibblis provides no context for this incident in her report. However, it refers to Mr. Marier’s arrest on July 24, 2019, by the ETF officers who were called in after Mr. Marier fled from the two officers behind the learning centre as he was heading to his car. Mr. Marier’s arrest was the subject of an excessive use of force application brought by the defence. Dr. Sibblis was provided with a copy of the defence application but apparently was never advised that the application was dismissed.

[40] Mr. Marier’s arrest on July 24, 2019 can no doubt be described as a negative encounter with the police. However, had he not taken flight, he would have been arrested in the normal course, and neither the K-9 Unit nor the ETF would have been called to the scene. There was no excessive force used in executing his arrest.

[41] Mr. Marier was arrested on this charge on July 24, 2019, and released on a house arrest bail on August 13, 2019, or 21 days later. As stated earlier, his cell phone was located and seized at the time of his arrest. The police later obtained a warrant to search the phone, which contained videos and photos of Mr. Marier displaying the firearm seized on July 24, 2019. Based on the contents of the phone, the police obtained a warrant to arrest him and search his house. They executed the warrant on January 11, 2021, which was about one-and-a-half years after his release on bail, and charged him with various firearm offences based on the images on his phone. It was a “no knock” entry. Mr. Marier told Dr. Sibblis that the police kicked in the door and charged him with numerous firearm offences “even though no guns were discovered.” However, as I understand it, the new charges were not based on Mr. Marier’s possession of the firearm on July 24, 2019. Rather, the new charges related to his possession of that firearm on other dates, as seen in the videos and photos on his phone. These charges were later withdrawn.

The Decision to Carry a Gun

[42] Although Michael Marier isolated Mr. Marier and Nikelle from their half-siblings and did not allow them to have unsupervised contact with them, Mr. Marier reported that he spoke to his half-brother every day on the phone and was very close to him. Mr. Marier was only 12 or 13 years old when his half-brother, at age 26, was killed. Dr. Sibblis states that shortly after the half-brother’s death, Mr. Marier displayed concerning behaviour in class. For example, he was observed wrapping tape tightly around his neck, scraping pencils against his arm, and talking about cutting himself.

[43] Mr. Marier reported that he decided to carry a gun for self-protection six or seven years after his half-brother was murdered because he was afraid and did not wish to meet the same fate. He stated that he had the gun for about two or three months prior to his arrest. He reported that he often wrestled with why he carried a gun and wondered if it would help, given that he did not want to shoot anyone. This apparent introspection on his part caused Dr. Sibblis to opine that Mr. Marier is “quite insightful about his motivation and influences.” However, Dr. Sibblis was never shown the videos or photos on Mr. Marier’s phone, where Mr. Marier is seen brandishing a firearm for selfies, videos, and general displays of bravado. I do not accept Mr. Marier’s explanation that he had the gun for self-protection.

[44] Dr. Sibblis makes no mention of the fact that at the time of his arrest for the present offence, Mr. Marier was on bail in regard to a charge under the Youth Criminal Justice Act, S.C. 2002, c.1. It is unclear whether Dr. Sibblis was advised of this fact. In any event, one of the terms of his bail was that he not be in possession of any weapon as defined by the Criminal Code.

Time Spent on Bail Under House Arrest with Electronic Monitoring and Steps Toward Rehabilitation

[45] The total time that Mr. Marier has been on bail under house arrest with electronic monitoring is from August 14, 2019 to September 15, 2023, minus the 8 days that he spent in custody in January 2021. This works out to 1486 days or 4 years 1 month and 2 days. During that time, Mr. Marier has taken significant and positive steps to upgrade his work skills and to take treatment for his concussion symptoms. Between August 31, 2019, and February 25, 2020, he attended approximately 15 Neurofeedback sessions, which have helped him cope with symptoms from his concussions. There have been no violations of his bail conditions.

[46] Mr. Marier applied for several bail variations during the more than four-year period he has been on bail. The first variation was on October 28, 2019, or two-and-a-half months after his release on bail. The variation allowed him to work on weekends from 9:00 a.m. to 7:00 p.m. at Lush Cosmetics, which was a three-month seasonal job.

[47] Christine Marier took a leave of absence from her job at CAMH so that she could accompany Mr. Marier to and from his work at Lush, as required by his bail conditions. She also stayed with him and worked at Lush herself. She did the same thing when Mr. Marier took a seasonal warehouse job at Amazon, which commenced on April 18, 2020. She drove him to and from work and also worked at Amazon during his working hours.

[48] Mr. Marier also obtained a bail variation that permitted him to attend Eva’s Construction and Building Maintenance Training Program, which was a two-month program held from October 23, 2019 to December 23, 2019. The program required his attendance from Tuesday to Friday from 8:30 a.m. to 2:30 p.m. Mr. Marier gained a number of career-focused skills during this program, such as framing and rough carpentry, drywall installation, installation of windows and doors, plumbing, blueprint reading, safe demolition, and job site awareness. This course triggered Mr. Marier’s interest in the construction industry.

[49] In 2020, Mr. Marier attended a month-long mentorship program at For Youth Initiative (FYI), a non-profit organization associated with the United Way. No bail variation was necessary for Mr. Marier to attend this program as Christine Marier accompanied him to and from the program. Defence counsel advises that the program centred on gun crime intervention and was led by a member of the Toronto Police Service. Mr. Marier has maintained contact by phone with his mentor at FYI, Richmond Nantwi, with whom he continued counselling sessions for about a year.

[50] In January 2022, Mr. Marier’s bail conditions that prohibited him from possessing any cell phone or computer, or from having a social media account, were deleted on the consent of the Crown so that he could take the Construction Craft Worker Program at George Brown College. This was an 18-week on-line course which did not require Mr. Marier to leave his house. He successfully completed the program.

[51] The first significant variation in Mr. Marier’s bail conditions was not until November 9, 2022, by which time he had been on house arrest for a little over 3 years and 2 months. This variation permitted him to leave his residence to work at Ambrosia Natural Foods in Thornhill. It also allowed him to travel to the Building Up Apprenticeship General Labour Program (“BU”) in Toronto from 7:00 a.m. to 5:00 p.m., Monday to Friday. In addition, as stated earlier, Mr. Marier was also able to travel to and from a local gym between Monday and Friday from 12:00 p.m. to 3:00 p.m. or 5:00 p.m. to 8:00 p.m. Christine Marier attended with him at the gym until his bail conditions were changed to permit him to attend on his own.

[52] On November 21, 2022, Mr. Marier’s bail conditions were varied in order to allow him to attend the various training centres operated by BU on Monday to Friday between 7:00 a.m. and 5:00 p.m. Mr. Marier’s Case Manager at BU, Yeti Ajasin, was extremely impressed with Mr. Marier’s participation in the BU program. In his letter of support filed with the court, he described Mr. Marier as having amazing leadership skills. Mr. Marier consistently helped and advocated for other participants within the program, but was also proactive in securing his own apprenticeship with the plumbing company, Mr. Pipe Ltd., while still attending the BU program. He graduated from the BU course as one of the top students in the Class of 2023.

[53] Mr. Ajasin states that he is not surprised by the “rave reviews” he has received in regard to Mr. Marier’s hard work, positive attitude, and eagerness to learn at Mr. Pipe Ltd. According to Mr. Ajasin, those qualities in Mr. Marier were apparent to him from the outset when Mr. Marier began the BU program. Mr. Marier has expressed to Mr. Ajasin his determination to turn his life around. He also told him that the BU program has given him a sense of belonging, purpose, and stability. He feels that he has worked toward not only having a job but also having a successful career in the plumbing field.

[54] The owner of Mr. Pipe Ltd., David Cartaxo, states in his letter of support, dated June 8, 2023, that Mr. Marier’s good grades at BU and impressive work ethic earned him one of two available spots at his company. Mr. Cartaxo describes Mr. Marier as punctual, dependable, a hard worker, and a fast learner with exceptional teamwork skills. He is also a talented plumbing apprentice. Mr. Cartaxo was so impressed by Mr. Marier that he felt compelled to offer him a full-time position, which is something he has never offered to a BU trainee before. He states that Mr. Marier continues to impress him.

[55] Mr. Marier has been working for Mr. Pipe since February 1, 2023. He works eight hours a day, Monday to Friday, and sometimes works overtime. He aspires to become a licensed plumber and to complete the 9000 hours and three school terms that are required to attain that goal. Mr. Marier has also expressed to Mr. Cartaxo and his parents that he aspires to complete his GED.

[56] On January 23, 2023, a further bail variation was granted on the consent of the Crown to permit Mr. Marier to travel to and from various supervised BU work placements from 6:00 a.m. to 6:00 p.m.

[57] Both Michael and Christine Marier observed that Mr. Marier has developed a renewed sense of purpose during his years under house arrest. He has purchased a GED textbook to prepare for his GED test. He is committed to furthering his education in hopes of becoming a licensed plumber and opening up his own plumbing business. He has shared videos with his family of the plumbing projects that he is working on. He has also helped his father with projects by completing various plumbing jobs at home.

[58] In his affidavit filed with the court, Mr. Marier states that he has felt tremendous shame about the fact that his parents have paid $30,000 to Recovery Science to cover the cost of the electric monitoring over the past four years. After obtaining the job at Mr. Pipe, Mr. Marier started paying the monthly fee himself. He hopes to eventually repay his parents in full for this expense.

[59] Mr. Marier states in his affidavit that the time that he has been on bail under house arrest with electronic monitoring has been difficult physically, mentally, and emotionally. He states that the ankle monitor is uncomfortable and interferes with his sleep, as it heats up at night while recharging, waking him up. It also causes some pain in his ankle when he is at work, where he is required to wear high-top boots that cover the monitor. In addition, the ankle monitor is a source of shame. When not at home, he is always concerned that a member of the public will notice it.

[60] Mr. Marier states that he is very fortunate to have parents who, as his sureties, were able to take him out of the house while he has been on bail. However, he noted that both of his parents work a lot. His father works during the day and usually into the evening. His mother works the nightshift at CAMH and almost always sleeps during the day. Consequently, prior to the bail variations allowing him to attend the BU program, the majority of his time on bail was spent at his house alone. The only way that he could see his friends was if they came to the house. Initially, some friends visited him. However, over the years, most of them stopped coming and he has lost contact with them. He has not been able to date anyone. He feels that he has missed some prime years of his life, that is, from the age of 19 to 23. He also feels that he is behind his friends and peers in many ways. Mr. Marier states that he has spent many difficult days and nights at home alone, feeling depressed and anxious.

[61] Crown counsel did not cross-examine Mr. Marier on his affidavit. However, she questioned the sincerity of Mr. Marier’s assertions in his affidavit and to Dr. Sibblis during his interview with respect to the emotional and mental stress that he has felt while under house arrest. He told Dr. Sibblis that he has suffered suicidal thoughts and that he needs counselling to deal with his emotions. He had seen several counselors and therapists in the past but found it difficult to connect with them due to race and gender incongruencies. Crown counsel noted that some of Mr. Marier’s family members described him as optimistic, with a new sense of purpose, and finding great pleasure in having a regular schedule. I do not attach too much significance to this apparent discrepancy. As defence counsel pointed out, Mr. Marier was talking to a social worker and being open and honest with her about his feelings. That he sometimes felt depressed about his situation is not surprising. It is also not surprising that in the company of his family members, he has projected optimism about his life. He has good reason to be optimistic because he has managed to put himself in a good place by working hard. I do note, however, a conflict between Mr. Marier’s description of his social life while on bail and having lost contact with his friends, and his step-grandfather’s description of same. Robert Marier states in his affidavit that Mr. Marier has reconnected with his childhood friends and found a new circle of friends at the gym, church, and work.

Analysis

Legal Parameters

[62] Pursuant to s. 95(1) of the Criminal Code, possession of a loaded prohibited firearm is punishable by a maximum of ten years in prison.

General Sentencing Principles

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

718. 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 acknowledgement of the harm done to victims or to the community.

[64] As observed by the Court of Appeal in Morris, at para. 58:

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

[65] I must also take into account the principles set out in ss. 718.1 and 718.2 of the 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; and
• that courts should exercise restraint in imposing imprisonment.

[66] As Mr. Marier is a young, Black man, I must also consider the principles enunciated in Morris in relation to considering social context evidence of systemic anti-Black racism and its impact on the offender as a factor relevant to sentencing.

[67] In Morris, the Court 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 fashion a sentence that best serves the purposes of sentencing as set out in s. 718 of the Code: Morris, at paras. 13, 75 – 81, and 87 – 107.

[68] Courts may acquire such social context evidence through judicial notice or through social context evidence, such as 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.

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

[70] 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 para. 67 – 72. Evidence of systemic anti-Black racism and its impact on the particular offender does not mitigate the seriousness of an offence.

[71] 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 para. 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.

[72] With respect to the offender’s blameworthiness, it is important to note that a connection is required “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.” However, the concept of connection must not be confused with a need to demonstrate causation: Morris, at paras. 96 and 97.

[73] Restraint has a special role to play in cases involving Black offenders, in light of the impact of historic systemic and overt racism, as exemplified by the over-incarceration of Black persons – particularly young, Black males – in Canada.

The Gravity of the Offence

[74] The offence committed by Mr. Marier is very serious. The gravity of this type of offence was described in Morris, at para 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. 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 SCC 36, [1993] 4 S.C.R. 199, at pp. 214 – 15.

[75] Handguns exist to maim or kill people. Persons who choose to possess illegal loaded handguns have decided that there will be circumstances in which they will use them. They constitute a real threat to public safety. For this reason, sentences for gun crimes must emphasize deterrence and denunciation. However, that does not mean that other principles and objectives are unimportant or left out of the mix: R. v. Beharry, 2022 ONSC 4370, at para. 18.

Aggravating Factors

[76] Mr. Marier’s possession of the loaded firearm in a public place is an aggravating factor because of the increased risk to the safety of members of the public. As observed by Justice Schreck in Beharry at para. 32, the risk that a handgun poses to public safety obviously increases once that handgun is removed from an individual’s home and taken into the community where the person carrying it might interact with other people.

[77] The fact that Mr. Marier fled when confronted by police is also an aggravating factor. In Morris at para. 170, the Court made the following comment:

On the trial judge’s findings, Mr. Morris’s flight from the plainclothes officers cannot be treated as an aggravating factor. However, his decision to continue to run once he knew he was being chased by a police officer does increase the seriousness of the offence. This is so for two reasons. First, fleeing from the police while in possession of a loaded handgun increases the risk of a confrontation, during which the weapon may be discharged deliberately, or even accidentally. Either substantially increases the risk to the public. Second, Mr. Morris’s decision to run while armed with a loaded handgun endangered the safety of the police officers who were engaged in the lawful execution of their duty. Doing so aggravates the seriousness of the offence.

[78] The fact that Mr. Marier discarded the firearm by throwing it into someone’s backyard is also an aggravating factor, as it further increased the risk to the public and to the police. The citizen who lived at 35 Kenton Drive discovered the firearm the next morning and notified the police. There was a school or learning centre across the street.

[79] The videos and photos on Mr. Marier’s cell phone show that he was in possession of the firearm on a number of occasions, indicating that his possession of the firearm was deliberate and not momentary.

[80] At the time that he committed this offence, Mr. Marier was bound by a recognizance that included a condition that he not possess any weapon as defined by the Criminal Code.

Mitigating Factors

[81] Mr. Marier is a youthful first-time offender. He was only 19 years old at the time that he committed this offence. He is now 23 years old. He has pleaded guilty, which has resulted in the saving of valuable judicial resources.

[82] Crown counsel noted that Mr. Marier’s guilty plea was not entered until the day that the trial was to begin. She also noted that this was an exceptionally strong case for the Crown, given the DNA evidence, the cell phone evidence, and the observations of the police officers. Nevertheless, Mr. Marier’s plea is an indication that he has taken full responsibility for his actions, which he confirmed when he addressed the court following counsels’ submissions.

[83] Mr. Marier has the strong support of his parents, his sister, and his step-grandfather, all of whom wrote letters addressed to the court attesting to the changes that they have observed in Mr. Marier during the four years and one month that he has been under house arrest. It is apparent from Nikelle’s letter that the whole family has been engaged in Mr. Marier’s rehabilitation. Her letter, in part, reads as follows:

When [Kyle] put on the ankle monitoring device, he had a reality check. By wearing an ankle bracelet, he gained humility and a constant and visual reminder of his mistakes. Consequently, he let go of everything he was doing that had gotten him into trouble, because it wasn’t working for him.

Losing his freedom and being confined to the house revealed his dysfunctions and the dysfunctions of the family. His problem became our problem. We all had to take a look at how we failed as a family unit and how a middle class young adult, living a sheltered life, ended up in this situation. We could no longer deny that, as a family, we had issues and traumas to deal with. Through family discussions, shared traumas were revealed and Kyle identified the triggers that led him to make poor decisions.

He stopped wasting his time blaming anyone or feeling sorry for himself. He was grateful for a second chance. By taking responsibility for his actions in life he was able to change things for the better. He took control of his life and worked toward making his life what he wanted it to be.

[84] Mr. Marier also has the strong support of people in the community, such as his employer, David Cartaxo, and his Case Manager at Building Up, Yeti Ajasin.

[85] Mr. Marier has been proactive in taking steps toward his rehabilitation while on bail. He has obtained gainful employment, commencing with short or seasonal jobs. He has completed the BU courses, and now has a full-time job as a plumbing apprentice. He has also addressed any lingering symptoms from his concussions by taking Neurofeedback treatment.

Systemic and Personal Factors

[86] Crown counsel submits that the EPSR is of limited value in this case, as Mr. Marier comes before the court as pro-social, educated and employed. Crown counsel contrasted Mr. Marier to the accused in Beharry who, unlike Mr. Marier, had an intellectual disability that was never addressed, who dropped out of school, and who came from an impoverished background. The presence of these factors explained that the absence of pro-social characteristics in Mr. Beharry’s case was not indicative of low rehabilitative potential.

[87] Mr. Marier did not grow up in poverty. However, the EPSR sheds light on his situation in the years leading up to his commission of this offence. Mr. Marier had a history of truancy, which began shortly after his half-brother’s murder. He had been struggling in school and eventually dropped out in Grade 11. He complained of headaches and difficulty concentrating after experiencing several concussions. It had been suggested to Mr. Marier’s mother when he was much younger that he suffered from ADHD, but she was reluctant to acknowledge that diagnosis for fear it would impact his educational opportunities. Thus, Mr. Marier did not receive any treatment for ADHD until he was 16 years old, when he was diagnosed with both PTSD and ADHD, and began to see a psychiatrist. He was prescribed medication for depression and anxiety. However, he stopped taking the medication because of its side effects.

[88] Unlike Mr. Beharry, Mr. Marier was raised in a safe environment by two parents who love him. He did not live in a neighbourhood known to have a high crime rate or large police presence. He does not have a criminal record. He has not been a victim of a violent crime. However, Mr. Marier felt alienated from his environment as almost everyone living in his neighbourhood was White or Asian. He felt the sting of anti-Black racism from an early age, starting in elementary school when a fellow student told him that he could not play with him because he was Black.

[89] According to Nikelle, she and Mr. Marier were the only students in their neighbourhood and school that could be considered to be Black, although they were both bi-racial. As bi-racial individuals, they suffered from an identity crisis and struggled with how to be Black and what it meant to be Black. Mr. Marier reported that both his non-Black peers and some family members teased him about his hair.

[90] At page 12 of her report, Dr. Sibblis concludes that anti-Black racism played a significant role in shaping Mr. Marier’s life and experience. Systemically, it played a role in the death of his half-brother, who was raised in an impoverished, crime-ridden neighbourhood. His untimely death had a significant impact on Mr. Marier not only because of the grief that he felt but also as a result of his father being less available to support him emotionally at that time.

[91] Anti-Black racism played a role in Mr. Marier’s parent’s denouncement of Blackness and their conflating it with criminality. They settled in a non-Black neighbourhood, where they believed they could give their children the best chance at success. Instead, Mr. Marier was made to feel alienated, discriminated against, and criminalized as an outsider. This played a role in Mr. Marier’s identity confusion, which likely contributed to his depression and anxiety.

[92] Anti-Black racism played a role in the manner in which Mr. Marier was regarded and disciplined at school. It also played a role in his decision to decline the private school admission, where he did not see many people like himself, and thus felt that he did not belong.

[93] After declining admission at the private school, Mr. Marier attended at Earl Haig, which also had only a few Black students. As a result, Mr. Marier transferred to Northern Heights, where he had many more Black peers. However, in his eagerness to fit in and have Black friends, he was on his own admission, not discerning about his choice of friends, which ultimately led him to where he is today.

[94] As outlined earlier in these reasons, Mr. Marier has been subjected to unfair and unwarranted attention by police on many occasions. Dr. Sibblis concludes that his premature involvement with police and the frequency of the involvement have resulted in Mr. Marier’s mistrust of the police, which can lead to a less robust respect for the law.

[95] I am satisfied that there is a connection between Mr. Marier’s life experience with anti-Black racism and his decision to commit the offence before the court. While Mr. Marier is clearly responsible for his offending, the degree of his responsibility is less than it would have been had his background been different. His degree of responsibility is still significant, but it is mitigated by the systemic and background factors.

The Downes Mitigating Factor

[96] Mr. Marier has spent a total of 4 years, 1 month, and 2 days on bail under house arrest with electronic monitoring.

[97] As set out by Schreck J. in Beharry, at para. 34, time spent subject to restrictive bail conditions should be taken into account: Downes, at para. 33. While the term “credit” is often used when addressing stringent bail conditions, “pre-trial bail is conceptually a mitigating factor” when assessing a fit and appropriate sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, citing R. v. Yue, 2007 ONCA 598, 51 C.R. (6th) 126, at para. 28. When courts do quantify the credit, it is often between a quarter and a third of the total time spent on bail: R. v. Long, 2021 ONSC 4747, at para. 39; R. v. Navarathinam, 2021 ONSC 4241, at para. 47 – 51; R. v. Campbell, 2021 ONSC 4193, at paras. 15 – 20; R. v. Inshanally, 2021 ONSC 3432, at paras. 35 – 37.

[98] In this case, I have considered the time that Mr. Marier has spent on house-arrest bail with electronic monitoring. However, as Justice Schreck did in Beharry, I do not intend to assign a specific amount to it.

[99] Defence counsel took the position that the Crown is responsible for some of the delay in this case because of its decision to prefer the indictment on the eve of the day when the preliminary inquiry was to commence. The main issue to be argued at the preliminary inquiry was the hearsay application. The Crown sought to admit the statement of the complainant in the human trafficking charges as the complainant had died prior to the preliminary inquiry.

[100] The application was later argued before me at the trial. I dismissed it on the basis that the criteria of threshold reliability had not been met. Defence counsel now argues that had the indictment not been preferred, the same result could have been obtained much earlier before the Justice presiding at the preliminary inquiry. However, based on Paciocco J.’s decision in R. v. Ali, 2015 ONCJ 765, that would clearly not be the case, as the threshold for admissibility under s. 540(7) is lower than that under the principled hearsay exception.

[101] Had the Crown not preferred the indictment, the preliminary inquiry would have proceeded. Only after it was completed, would a trial date have been set in this court. Thus, the preferring of the indictment actually saved time as opposed to causing a delay.

[102] Crown counsel submitted that some of the delay is attributable to the defence. For example, a third-party records application was adjourned on January 21, 2021, as defence counsel had not served the necessary subpoenas.

[103] The Crown has consented to many of the bail variations that the defence has sought. The first variation was allowed only two-and-a-half months after Mr. Marier’s release from custody in order to allow him to work.

[104] The house arrest condition was subject to the exception if he was with one of his sureties. It is apparent from the bail variations that Mr. Marier was only on house arrest when not engaged in a pro-social activity, whether it be work, education, church, or going to the gym. In January 2022, his bail condition that prohibited him from possessing any cell phones or computers, or from having a social media account were deleted on the consent of the Crown so that he could take the on-line course offered by George Brown College. In brief, Mr. Marier has been able to enjoy a fair bit of liberty while on bail. That said, Mr. Marier has been the subject of electronic monitoring for a lengthy period of time.

Time Spent in Pre-Trial Custody

[105] Mr. Marier was arrested on this charge on July 24, 2019, and released on a house arrest bail with an ankle monitor on August 13, 2019, or 21 days later.

[106] On January 11, 2021, Mr. Marier was arrested at his house on charges related to the contents of his cell phone. He was released 8 days later on January 18, 2021. The total time that Mr. Marier has spent in pre-trial custody is therefore 29 days.

[107] Pursuant to R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Marier is entitled to a credit of 44 days for that period of pre-trial custody.

The Duncan Credit

[108] Pursuant to the decision in R. v. Duncan, 2016 ONCA 754, defence counsel seeks a further credit of 23 days on the basis that there were 16 days during Mr. Marier’s incarceration at the Toronto South Detention Centre (“TSDC”) in which there were lockdowns. There is no evidence before the court as to how the lockdowns may have affected Mr. Marier.

[109] According to the TSDC Lockdown Summary, which was filed as an exhibit, lockdowns described as “partial” means that only some of the units at the detention centre were affected. Lockdowns described as “full” means that all units were impacted by the lockdown.

[110] The Lockdown Summary shows that there were 14 lockdowns between July 24, 2019, and August 13, 2019. The lockdown on August 13, 2019 commenced at 6:00 p.m. It is unlikely that Mr. Marier was affected significantly, if at all, by that lockdown, as he was released on bail that day.

[111] Mr. Marier was in court during six of the days when there were lockdowns. The days when there were lockdowns when he was not in court are as follows:

1. July 28: full lockdown commencing at 6:00 p.m.
2. August 3: partial lockdown commencing at 3:00 p.m.
3. August 4: partial lockdown from 6:30 p.m. to 10:30 p.m.
4. August 7: full lockdown from 6:30 p.m.
5. August 9: partial lockdown from 3:00 p.m.
6. August 10: partial lockdown from 8:00 a.m.
7. August 11: partial lockdown from 8:00 a.m.

[112] Mr. Marier’s unit would have been affected by the full lockdowns on July 28 and August 7, 2019, both of which commenced at 6:00 p.m. I would grant two days of Duncan credit with respect to those lockdowns.

[113] During Mr. Marier’s incarceration between January 11 and 18, 2021, there were two partial lockdowns – one on January 16, and the other on January 18.

[114] The lockdown on January 16, 2021 did not commence until 6:30 p.m. There is no information as to whether the unit housing Mr. Marier was impacted by that lockdown.

[115] The lockdown on January 18, 2021, commenced at 8:30 a.m. Mr. Marier was released from custody that day and returned to live with his parents under house arrest. There is no information as to whether his unit was affected by this lockdown or whether he was in the TSDC when it went into effect.

[116] I would not give any credit pursuant to Duncan with respect to the January 2021 lockdowns.

The Appropriate Sentencing Range

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

At one end of the spectrum stands the outlaw who carried a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person’s conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

[118] Mr. Marier’s conduct is clearly not in the nature of a regulatory offence. Nor is he an “outlaw” who carried the firearm “as a tool of his criminal trade.” There is no evidence that Mr. Marier was engaged in any other criminality, such as drug trafficking. Rather, Mr. Marier falls between the two extremes. As a result, I find that the-three-to-five-year range that is often cited as appropriate for a s. 95 offence does not apply: see R. v. Stewart, 2022 ONSC 6997, at para. 74 and Beharry, at paras. 30 and 31, and the cases they cite. Cases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or lower penitentiary range.

[119] Having considered the gravity of the offences, Mr. Marier’s degree of responsibility, the aggravating and mitigating factors discussed above, and the objectives and principles of sentencing, I conclude that the appropriate sentence in this case is imprisonment in the range of two years.

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

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

[121] I am therefore required to consider whether a conditional sentence is appropriate in this case.

Appropriateness of a Conditional Sentence Order

[122] Section 742.1 (a) of the Criminal Code sets out two prerequisites for a conditional sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that it would not in this case. Mr. Marier has no prior criminal record. He has been on bail since 2019 or for over four years. He has complied with all the conditions of his recognizance. He is not likely to reoffend or pose a risk to the safety of the public during a period of community supervision.

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

The Sentencing Objectives in this Case

[124] The nature of the offence in this case makes the objectives of general deterrence and denunciation paramount. However, rehabilitation is also important and cannot be overlooked.

[125] There are a number of factors that lead me to conclude that Mr. Marier has strong rehabilitative potential. He has no prior criminal record. He has abided by his bail conditions and the house rules set by his parents for over four years. He has accepted responsibility for his actions. He has taken multiple steps to improve his life and to become a productive citizen. He is in the midst of building his skillset and gaining experience in order to ensure that he has a stable career path in the future. His family is supportive of him.

[126] Sentencing Mr. Marier to a term of actual incarceration would no doubt give effect to the objectives of general deterrence and denunciation. However, such a sentence would do little to contribute to Mr. Marier’s rehabilitation and would likely hinder it. He is excelling at his current work, which is an important and stabilizing force for him. A lengthy period of incarceration would most likely narrow his future employment prospects.

[127] The rehabilitation of an offender has both an individual and societal benefit. Wagner C.J.C in R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 48, reiterated the comment made in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R 1089, at para.4, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from other societies of many nations in the world.” The essence of the objective is to reform offenders with an ultimate view to reintegration into society. It follows that the sentencing objectives of rehabilitation is not to be treated as less important in more serious cases where objectives of denunciation and deterrence are amplified: Beharry, at para.42.

[128] Clearly, Mr. Marier’s offending calls for deterrence and denunciation. Both of those objectives can be met with a conditional sentence containing sufficiently punitive terms: see R. v. Proulx, 2000 SCC 5, [2000] 2 S.C.R. 61, at paras. 22, 102, 105 and 107.

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

Disposition

[130] Based on the foregoing, and taking into account the 46 days of Summers and Duncan credit, Mr. Marier is sentenced to a term of imprisonment of two years less 46 days, to be served in the community pursuant to a conditional sentence order on the following conditions in addition to the statutory conditions:

• For the first 12 months of the conditional sentence, Mr. Marier will be under house arrest with the following exceptions: i) for the purpose of employment; ii) for attendance at an educational institution or to take courses related to his employment; iii) to attend medical and dental appointments for himself; iv) to comply with any terms of this order or direction of his Supervisor; v) for medical emergencies involving himself or members of his immediate family; vi) to attend religious services;
• For the remainder of the sentence, which is 12 months less 46 days, there will be a curfew imposed, between 10:00 p.m. and 6:00 a.m., subject to the same exceptions. He will also make reparations by performing 75 hours of community service during the second half of his conditional sentence.

[131] Mr. Marier will not possess any firearms or weapons as defined by the Criminal Code.

[132] Mr. Marier will attend such counselling as directed by his Supervisor and sign any releases as are necessary to monitor compliance with this condition.

[133] At the conclusion of his sentence, Mr. Marier will be placed on probation for a period of one year on the following conditions in addition to the statutory conditions:

• Report forthwith to a probation officer and thereafter as directed;
• Not to possess any firearms or weapons as defined by the Criminal Code;
• Attend such counselling as directed by his probation officer and sign any releases as are necessary to monitor compliance with this condition.

Ancillary Orders

[134] As Mr. Marier has been convicted of a secondary designated offence as defined in s. 487.04 of the Criminal Code, there is an order under s. 487.051(3) authorizing the taking of the number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.

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

[136] Finally, there is a forfeiture order for all items seized in this matter pursuant to s. 491 of the Criminal Code.

Garton J. Released: September 15, 2023