Court File and Parties

BARRIE COURT FILE NO.: CR-20-003

DATE: 20231005

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King

– and –

Jalen Pitt

COUNSEL:

J. Janiuk for the Provincial Crown R. Jones for the Federal Crown

H. Bassi for the Defendant

HEARD: July 20^th, 2023

REASONS ON SENTENCING

McCARTHY J.

Background

[1] Jalen Pitt appears before me today for sentencing.

[2] On February 18, 2022, the Defendant was found guilty of possession of a loaded restricted firearm and possession of 28.58 grams of cocaine for the purpose of trafficking.

[3] The offences took place on September 12, 2018, at which time the Defendant was 19 years old. The Defendant was arrested following a warranted search of a vehicle in which he was a passenger. The warrant was executed in a take-down type fashion, with police descending upon the Defendant and his companions outside a Dairy Queen restaurant in Wasaga Beach.

[4] These are the Defendant’s first offences. He has no previous record. The Defendant has been under house arrest for much of the period following the offences. A portion of this house arrest coincided with Covid-19 lockdowns. The Defendant plead guilty to a breach of his release order in March 2021 and was returned to custody for 65 days. He was obliged to wear an ankle bracelet beginning on November 3, 2021.

[5] The court was furnished with an enhanced pre-sentence report dated July 4, 2023. Sentencing submissions were received on July 20, 2023

The Crown’s Position

[6] The Crown seeks a global sentence of 4 years less credit for pre-trial custody which, taken with the enhanced credit of 1:5 to 1, would yield a total of 80 days to be subtracted from the sentence. The Crown also seeks a DNA order, a s.109 weapons prohibition and a forfeiture order.

[7] The Crown points to the relevant case law and relies on the sentencing principles of general and specific deterrence as well as that of denunciation. The Crown also points to several aggravating factors: the drug trafficking was for commercial gain; the firearm was concealed in a satchel; the firearm had likely been on the Defendant’s person for up to 5 hours; the firearm was carried in a public place during daylight hours; there were six rounds of ammunition in the firearm; the firearm served as an accompaniment to drug trafficking.

The Defendant’s Position

[8] The Defendant does not dispute the suggested credit for pre-trial custody; nor does he dispute the sought after DNA, s. 109, and forfeiture orders.

[9] The Defendant does seek a Downes credit of between 2 and 4 months per year for the time spent on house arrest. The Defendant suggests that a Downes credit of between 9 and 12 months should be applied to a global sentence of 3 years to result in a net remnant sentence of 2 years and 1 month.

[10] The Defendant points to his age at the time of the subject offences, that he had no previous criminal record, that his rehabilitation potential is excellent, that he has the support of his family and his church, that he has pursued his education through on-line courses since his arrest. As well, the Defendant relies on the content of the enhanced pre-sentence report which highlights his personal circumstances, his upbringing, the prevalence of racial discrimination in law enforcement and the family and positive peer support that he enjoys.

[11] Finally, the Defendant emphasizes that this was a “Charter or nothing” case, such that upon his pre-trial Charter application being dismissed, the Defendant acknowledged the relevant facts and invited a finding of guilt.

The Principles of Sentencing

[12] The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code, R.S.C., 1985 c. C-46. As the subject offences included controlled substance trafficking, the sentencing principle and factors found at s. 10 of the Controlled Drugs and Substances Act (“CDSA”), S.C. 1996, c. 19, must also form part of my analysis. I am mindful that the principles of denunciation and deterrence, both specific and general, must guide the court in crafting a just sentence.

[13] Sentencing must be proportionate to the severity of the offences and the degree of responsibility of the offender. The approach of a sentencing judge should be to craft an individual sentence which is just and fit.

Discussion

[14] We hear and see with sickening regularity just how prevalent illegal drugs and firearms are today. While often loaded firearms are utilized as a means of protection and a form of intimidation for drug dealers, they are regularly employed to terrorize, kill, and maim, and not just their intended targets. Innocent victims abound.

[15] It is true that the Defendant did not discharge his firearm. But he did carry it with him for several hours, in public places, in a concealed location, while carrying out drug dealings and in the company of two females who stood to be in harm’s way if the firearm was discharged. The firearm contained six rounds of ammunition. I can fairly take judicial notice that this measure of firepower would be sufficient to inflict mortal wounds on several persons.

[16] As for the cocaine, an ounce is a significant, if not astonishing amount, clearly intended to be sold for commercial gain. This amount, whether intended for habitual users, addicts, or first-time users, posed a serious risk to the health and welfare of its intended consumers.

[17] The case law on drug trafficking and firearm offences is extensive, almost breathtaking. In the recent case of R v. Wong [2012] O.J. No. 5250, 2012 ONCA 767, at para. 11, our Court of Appeal reiterated the appropriate view to be taken of sentencing, even for a first-time offender, in upholding a global sentence of three years:

The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.

[18] As for the suggestion in the enhanced pre-sentence report that the Defendant carried the loaded firearm for protection and that, “Jalen believed that being caught with a firearm was better than not having one in the face of a dangerous situation”, I am unable to consider that a mitigating circumstance. The Defendant would have well understood, even at the age of 19, that guns take lives. His co-accused’s own brother was shot and died a year or so before the index offences.

[19] As stated by Trotter J, as he then was, in R v. Powers [2007] O.J. No. 5107, 2007 ONCJ 619 at para. 25:

lt is difficult to imagine any circumstances in which leniency should be afforded to those who arm themselves with handguns for the purpose of self-protection. To do so would turn the firearm provisions in the Criminal Code on their head and exacerbate a very serious social problem. This proposition gains greater force when it is considered that many of the people who make this claim attract personal peril by living dangerous, criminal lifestyles in which such animosity is a foreseeable fact of life.

[20] There can be no doubt that the Defendant, in choosing to arm himself with a loaded firearm in support of his drug dealing activities, engaged in truly criminal conduct which posed a real and immediate danger to members of the public. This would place the conduct at the more serious end of the range of criminal activity as described by the Supreme Court of Canada in R v. Nur [2015] 1 S.C.R 773, 2016 SCC 15, at para. 84.

[21] Even as separate offences, possession of loaded firearms and possession for the purpose of trafficking attract significant sentences.

[22] In R v. Marshall, [2015] O.J. No. 5348, 2015 ONCA 692, the Ontario Court of Appeal upheld a sentence of 3 ½ years’ imprisonment for possession of a loaded prohibited firearm in the case of 23-year-old first time offender where the loaded firearm was found in his closet.

[23] In R v. Kenyon, [2008] O.J. No. 2486 (Ont. S.C.), an individual convicted of possession for the purpose of trafficking 26 grams of cocaine was sentenced to 19 months in custody.

[24] An individual found guilty of possessing 21.06 grams of cocaine for the purpose of trafficking was sentenced to 2 years less a day in custody: R v. Grant, 1997 CanLII 1727 (ON CA), [1997] O.J. No. 3173.

[25] A 24-year-old with a criminal record for theft was sentenced to two years less a day in custody for trafficking a quantity of 12 grams of crack cocaine: R v. Cummings, [1997] O.J. No. 2581 (Ont. Gen. Div.).

[26] The seriousness of these combined and almost inextricably linked crimes of carrying loaded firearms while engaging in drug trafficking is reflected in the severity and relative consistency of global sentences handed down by courts of all jurisdictions.

[27] In R v. Crevier, [2015] O.J. No. 5109, 2015 ONCA 619 the court upheld a sentence of 4 years for possession of a loaded restricted firearm found in a night table during the execution of a search warrant and 2 years consecutive for possession for the purpose of trafficking 89.4 grams of powder and crack cocaine. The trial judge had found that consecutive sentences were appropriate because of the distinct nature of the offences. The Court of Appeal concluded that there had been no error in principle in finding that the trial judge had properly considered the totality principle in handing down the six-year global sentence.

[28] In R v. Marong, 2020 ONCA 598, [2020] O.J. No. 4006, the appellant was convicted of a number of offences related to possession of a firearm and a single count of possession of cocaine. He received a 48-month global sentence.

[29] In R v. Griffith, [2019] O.J. No. 219, 2019 ONSC 358, upheld at [2021] O.J. No. 2514, 2021 ONCA 302, A.J. O’Marra J imposed a global sentence of 5 years consisting of 4 years for possession of a firearm employed as a tool of the defendant’s criminal activity as an illicit drug trafficker and 1 year consecutive for possession of crack cocaine.

[30] In handing down this sentence, the trial judge stated as follows at para. 36:

The sentence imposed in this instance must meet the objectives of denunciation and deterrence and must be exemplary in order to dissuade those who would not only possess a loaded firearm but also participate in drug trafficking. They must expect to pay dearly for their crimes by the loss of liberty for very long periods of time.

[31] In R v. Brown, [2013] O.J. No. 3095, 2013 ONSC 4230, a first time 27-year-old offender was handed a global sentence of 3 years for being in possession of a loaded restricted firearm and in possession of cocaine (albeit not for the purpose of trafficking).

[32] In crafting an appropriate sentence, I am mindful that the possession of a loaded firearm and possession for the purpose of trafficking, while linked, are distinct offences. One should not punish an offender twice by imposing a sentence for the separate but related offences and then use the fact that he was committing one offence while engaged in the other as an aggravating factor, R. v. Derby, 2023 ONCA 449, [2023] O.J. No. 3218.

[33] I am drawn to the conclusion that this Defendant’s sentence for possession of one ounce of cocaine for the purpose of trafficking fits in the range of 12 months to 18 months in custody and the sentence for possession of a restricted firearm fits in the range of 36 months to 40 months.

[34] That said, I would limit the sentences to the lower end of the respective ranges given the mitigating factors of the Defendant’s age at the time of the offences, the absence of a pre-existing record, the Defendant’s fair potential for rehabilitation, the strong support he enjoys from his family and his church, and his initiative to pursue college level education. To this I would add the obvious disadvantages and unique challenges he experienced in growing up in his particular social and cultural environment.

[35] I would therefore impose a sentence of three years for the offence of possession of a loaded restricted firearm and one-year for possession for the purpose of trafficking to be served consecutively.

[36] I would allow a Downes credit of only 120 days in total. The imposition of the ankle bracelet followed upon the Defendant’s breach of conditions of his release, however minor. Moreover, I did not hear any evidence that the house arrest was particularly onerous. Even if he had enjoyed complete freedom from conditions, the Defendant would still have faced many of the restrictions on gathering and travelling experienced by innocent members of the public during the Covid years. As well, it appears that he put the house arrest time to good use in pursuing higher education, a factor which has already served to reduce the totality of his sentence.

[37] I bear in mind the totality principle; however, the seriousness of the combined offences, distinct but related, and the manner in which they were committed (for commercial profit and carrying a concealed firearm with 6 rounds of ammunition in the company of others and in a public place) demand that these sentences should be served consecutively and not concurrently.

Disposition

[38] Jalen Pitt, please stand. I sentence you to 4 years in the penitentiary less a credit for pre-sentence custody of 80 days and a further Downes credit of 120 days. This combined credit of 200 days is to be deducted from your sentence leaving you to serve a remnant sentence of 3 years and 165 days.

[39] There shall be the further imposition of a s. 109 weapons prohibition for life.

[40] You shall submit for a DNA sample, pursuant to s. 487.051(3)(b) of the Criminal Code.

[41] There shall be a forfeiture order in respect of all illegal items seized from your person.

[42] And that is the sentence of the court.

McCarthy J.

Released: October 5, 2023

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.