R. v. Collins, 2023 ONSC 5768

COURT FILE NO.: CR-21-10000470-0000

DATE: 20231013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CHRISTIAN COLLINS

Catherine Rhinelander and Zachary Kerbel, Counsel for the Crown

Kim Schofield and Catherine Szpulak, Counsel for the Defence

HEARD: April 18, May 8, June 1 and 8, July 14 and 18, September 5, and October 13,2023

M.A. CODE J.

Reasons for SENTENCE

A. OVERVIEW AND HISTORY OF THE PROCEEDINGS

[1] The criminal proceedings in this Court involving Christian Collins (hereinafter, Collins) have a long and complex history. That history eventually led to him pleading guilty before me and being sentenced. These are my Reasons for Sentence.

[2] The prior history of the proceedings involving Collins is relevant to this sentencing decision. In brief summary, he was one of a large number of accused who were charged in October 2020 with mainly guns, drugs, and criminal organization offences, all resulting from “Project Sunder”. This was a lengthy police wiretap investigation into the activities of a group known as the Eglinton West Crips. I was appointed as the “case management judge” for all these cases, pursuant to s. 551.3 and 551.7 of the Criminal Code. I heard a long complex s.8 Charter of Rights Application in November and December 2022, challenging the wiretap authorizations that led to the charges. Colins was one of 50 Applicants. At the end of the hearing, I dismissed most of the grounds that had been argued and upheld the validity of the wiretaps. See: R. v. McPherson and 49 Others, 2023 ONSC 232.

[3] However, there was one narrow part of this broad s. 8 Charter attack on the wiretaps that had potential merit. It involved an argument that was being advanced by Collins to the effect that the police had intercepted a number of his solicitor-client telephone calls. This issue required further evidence and argument. As a result, I severed it and completed it during January and February 2023. In the end, I held that there was one improper intercept of a call between Collins and his lawyer, Ms. Schofield, where the police had failed to “minimize” the intercept in accordance with the terms of the wiretap authorizations. I found that this failure to comply with the minimization terms of the authorizations violated Collins’ s. 8 Charter rights. I declined to grant the main ss. 24(1) or 24(2) Charter remedies that were being sought by Collins, which would have excluded much of the evidence that was to be tendered at Collins’ upcoming trial. However, I made a mandatory Order or injunction, requiring the Toronto police to adopt certain practices and procedures in the “wire room” that would prevent any repetition of this one isolated violation of solicitor and client privilege. See: R. v. Collins, 2023 ONSC 1297.

[4] As part of the mandatory injunction remedy, I required the police and Crown to report back to the Court within 30 days of my judgement, advising in writing that the steps I had ordered were feasible and were being implemented. In other words, I remained seized with the s. 24(1) remedy for the s. 8 violation. I received a four page written response to my Order from the Toronto police, dated March 31, 2023, and the parties appeared before me on April 18, 2023. At that time, Ms. Schofield briefly submitted that there were some concerns with the police response. She did not press the point and I was satisfied that the police had complied with the mandatory Order. However, Ms. Schofield then raised the possibility of a personal (as opposed to institutional) s. 24(1) Charter remedy for the violation of Collins’ s. 8 rights, namely, a sentence reduction. This potential remedy had occurred to me when I heard Collins’ s. 8 argument in January and February 2023. I did not raise the point with counsel at that time because it depended on Collins being convicted at trial or pleading guilty, and neither of these events had occurred. Ms. Schofield and Ms. Rhinelander suggested a Judicial Pre-Trial (JPT) before me in chambers at the April 18, 2023 hearing, which I agreed to. At this point, resolution discussions began.

[5] There was a further JPT in my chambers on May 8, 2023, after which the parties appeared before me in Court. Collins re-elected trial by judge alone and pleaded guilty to five counts in the Indictment. The Indictment had been scheduled for trial that week. The five guilty pleas were as follows: trafficking cocaine between March 20 and April 22, 2020 (count one); possession of a loaded prohibited firearm on September 9, 2020 (count five); possession of a loaded prohibited firearm on September 9, 2020 contrary to a s. 109 Order (count eight); possession of cocaine for the purpose of trafficking on September 9, 2020 (count nine); and possession of proceeds of crime on September 9, 2020 (count ten). An Agreed Statement of Fact (ASF) was filed, setting out the factual basis for the five guilty pleas. I will summarize these facts in the next section of these Reasons.

[6] The parties also filed a second ASF, setting out the factual basis for an additional violation of Collins’ Charter rights. It occurred on April 18, 2020, when Collins was arrested in Sudbury as part of the “Project Sunder” investigation. The admitted facts set out a clear s. 10(b) Charter violation involving a relatively senior OPP officer. Ms. Rhinelander, on behalf of the Crown, wisely conceded this further Charter violation. Ms. Schofield advised that she would be seeking the s. 24(1) Charter remedy of a sentence reduction, in response to this admitted s.10(b) violation as well as the s.8 violation that I had previously found in relation to the wiretap intercept of a solicitor and client phone call. I will summarize the facts relating to these two Charter violations in a subsequent section of these Reasons.

[7] Finally, as part of the May 8, 2023 guilty plea proceedings, Ms. Schofield advised that she was seeking to establish a third violation of Collins’ Charter rights in support of the s.24(1) sentence reduction remedy. This third alleged violation related to a strip search carried out by OPP officers, after Collins’ arrest in Sudbury on April 18, 2020. The Crown disputed this third violation and so I heard evidence relating to the matter. After a number of case management appearances, the parties agreed to file a written record (which included an ASF and the preliminary inquiry transcripts) and two police officers were called on July 18, 2023 for brief cross-examination. I will summarize the facts relating to this third alleged Charter violation in a subsequent section of these Reasons.

[8] The last step in this long procedural history was the actual sentencing hearing. On September 5, 2023, Ms. Schofield filed an evidentiary record seeking to establish her client’s reformation. I then heard submissions as to sentence and reserved judgement. I will summarize this important part of the record in a subsequent section of these Reasons.

B. FACTS RELATING TO THE OFFENCES

[9] It can be seen from the above overview of the five guilty pleas in this case that the five offences relate to two different time periods. The count one cocaine trafficking offence occurred between March 20 and April 22, 2020. The four other counts all relate to possession offences – a loaded handgun, cocaine for the purpose of trafficking, and proceeds of crime – and they all occurred over four months later on September 9, 2020.

[10] Beginning with the cocaine trafficking in the earlier time period, it is substantially based on the wiretaps and on Collins’ arrest in Sudbury on April 18, 2020. The ASF filed at the time of Collins’ guilty pleas summarized the count one cocaine trafficking offence as follows (at para. 5):

Between March 20 to April 22, 2020, intercepted communications showed Collins engaged in trafficking controlled substances and producing crack cocaine to sell to residents on M’Chigeeng First Nations Reserve on Manitoulin Island. Collins timed these trips to coincide with dates upon which the residents received their government issued social assistance cheques. He sold cocaine at the gram level and, in one intercepted conversation, advised an unknown male that he could not afford to front anyone drugs because the price for a brick of cocaine had gone up from $42,000 to $53,000. He said that although this meant he would lose $11,000, he was nonetheless keeping the prices he charged to his customers the same.

The ASF also referred to two specific intercepts on March 20 and 31, 2023. In the first of these intercepts, Collins stated that “the prices for drugs on the island were double those in Toronto” and he discussed “returning to Manitoulin Island once the baby-bonus cheques came in.” In the second of these two intercepts, Collins stated that he was “going home with ten bands” or “ten racks”, which are slang expressions for $10,000.

[11] The “LBS” location data from the wiretaps confirmed that Collins had travelled from Toronto to the M’Chigeeng First Nation reserve on Manitoulin Island at the end of March 2020 and that he returned to this location from April 19 to 22, 2020. Immediately prior to this second trip, the “Project Sunder” investigators directed their OPP liaison officer to have Collins arrested and searched incident to arrest, while he was en route to Manitoulin Island. The arrest was made in Sudbury on April 18, 2020. Collins had been intercepted texting numerous previous customers on Manitoulin Island, advising them of his arrival that night. The police searched the car that Collins was driving, after his arrest, and seized 24.2 grams of cocaine, 46 oxycodone pills, and a black digital scale with white residue. Collins admittedly had knowledge and control of these drugs for the propose of trafficking. Collins was released on bail from the Sudbury OPP detachment and the car and his cell phone were returned to him. He proceeded to Manitoulin Island where, according to the ASF, he “was intercepted continuing to traffic in controlled substances” between April 19 and 22, 2020 (perhaps implying that the police in Sudbury had not found and seized all the drugs that he was transporting).

[12] The facts relating to the four offences committed in the second time period, namely, on September 9, 2020, are much simpler. Collins was residing in a condominium in Vaughan at this time. A confidential source informed the “Project Sunder” investigators that Collins was in possession of a firearm. In an earlier wiretap intercept on March 20, 2020 Collins had stated, “I have my gun on me”. A search warrant was obtained both for Collins’ residence and for a Honda motor vehicle that he had rented. The warrant was executed and Collins was arrested on September 9, 2020 when he arrived in the lobby of the condominium building where he resided. The police seized $1,700 found on Collins’ person.

[13] Inside the residence, police seized documents in Collins’ name, drug baggies, a digital scale, and multiple cell phones. Car keys seized from a table were used to enter the Honda found in the underground parking area. The police seized a semi-automatic Ruger 9mm handgun that was found in the car. It was loaded with eight rounds of ammunition. The police also found 42.89 grams of cocaine hidden under the steering column. Finally, they found Collins’ driver’s licence in the car and Collins’ DNA was obtained as a result of forensic testing of the handgun.

[14] It is admitted that Collins had knowledge and control of the firearm, ammunition, and cocaine seized from the Honda. It is also admitted that the Ruger handgun is a prohibited firearm and that Collins was not the holder of an authorization, licence, or registration certificate for the firearm. Finally, it is admitted that Collins had been prohibited from possessing any weapon at the time, as a result of a s. 109 Order made on June 19, 2019.

C. FACTS RELATING TO THE CHARTER VIOLATIONS

[15] As explained in the first part of these Reasons, two violations of Collins’ Charter rights have been established at earlier stages of these proceedings. A third alleged Charter violation is disputed and was the subject of an evidentiary hearing during the sentencing proceedings. Collins seeks the s. 24(1) remedy of a sentence reduction in relation to all three of these Charter violations. See: R. v. Nasogaluak (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.).

(i) The first Charter violation

[16] The first Charter violation is the interception of one telephone call that Collins made to the cell phone of his lawyer (Ms. Schofield) on April 19, 2020. This was the day after Collins’ arrest by the OPP in Sudbury, at which time he had been informed about his s. 10(b) Charter rights (which were properly facilitated with a confidential call to Ms. Schofield). After the police released Collins that night, and after his car and cell phone were returned, he proceeded to Manitoulin Island. He was calling his lawyer from Manitoulin Island the next day, which was a Sunday, when the impugned interception occurred. As noted above, Collins had successfully reached Ms. Schofield from the Sudbury police station on the Saturday night, at the time of his arrest, without any wiretap interception. The s. 8 violation at the time of this further telephone call on the Sunday involved the failure of the “wire room” monitors and the “Project Sunder” investigators in Toronto to either block, alarm, or quickly “minimize” this call, in order to comply with the terms of McMahon J.’s authorization.

[17] The facts relating to this s. 8 Charter violation are complex and are summarized at length in my earlier Reasons. I inferred that the minimization terms of the authorization had not been complied with, based on the totality of nine items of circumstantial evidence. I do not intend to summarize or repeat this process of reasoning and simply adopt what is set out in my prior Reasons. See: R. v. Collins, 2023 ONSC 1297 at paras. 56-75.

[18] In terms of the gravity of this first Charter violation and whether it had any significant impact on Collins’ Charter-protected interests, I stated the following at the s. 24(2) stage of analysis (R. v. Collins, supra at paras. 89-92):

The first set of Grant factors is not easy to assess on the particular facts of this case. On the one hand, any violation of wiretap terms relating to the protection of solicitor and client privilege during a police investigation is inherently serious. That is because solicitor and client privilege is a long-standing legal principle that is well-known to the police and that has repeatedly been held to be “fundamental to the judicial system” and “integral to our system of justice”. See R. v. McClure (2001), 2001 SCC 14, 151 C.C.C. (3d) 321 at paras. 2 and 4 (S.C.C.), Smith v. Jones (1999), 1999 CanLII 674 (SCC), 132 C.C.C. (3d) 225 at paras. 45-50 (S.C.C.), and R. v. Bruce Power Inc., supra at paras. 42-47. The monitors and investigators who testified on the present Application all understood the importance of solicitor and client privilege and they understood that para. 6 of McMahon J.’s authorizations was designed to protect that privilege and it was, therefore, important. These considerations all infer that the violation was serious because it caused some degree of institutional harm, regardless of the apparent absence of any harms to Collins’ fair trial interests.

On the other hand, the “Sunder” investigators requested inclusion of the para. 6 “minimization” terms in the authorizations. They proceeded to intercept 5004 of Collins’ communications between March 23 and September 9, 2020. In only one of these interceptions was there a violation of the para. 6 terms. All of the other 5003 interceptions were lawful and they were constitutionally compliant. In addition, Det. Cst. Murray did eventually classify the one unlawful interception as “privileged”, on May 20, 2020, thereby preventing any further access. I have made a finding that there was an “interception” on April 19, 2020, in the sense that two monitors and one police investigator appear to have listened to parts of the call. However, I was not satisfied that the JSI system ever recorded the call, and there is no recording of the call in existence at present. The violation of para. 6 occurred when the lead monitor on the call, Madeline Conroy, appears to have listened to the call for 1 minute and 40 seconds, before she “minimized” it. She has no present recollection of the call, or what caused her to “minimize” it after listening for a period of time. Because there is no present recording of the call, her memory could not be refreshed by listening to it. More importantly, I have no ability to assess the contents of the call in determining how apparent it should have been that the call was to a lawyer, or exactly when it should have become apparent. My determination that the police and the monitors should have realized that it was a call to a lawyer is based on all the surrounding circumstances, including the arrest in Sudbury on April 18, 2020 and Fenech’s monitoring of the previous “Session 14” call to Page: 30 Ms. Schofield’s office voicemail. In these circumstances, it is difficult to assess the degree of Ms. Conroy’s fault. Finally, there is no prior history of the Toronto Police “wire room” violating “minimization” terms relating to solicitor and client privilege. As I recall, none of the civilian monitors or their supervisor, Ms. Paquin, had ever testified in a court proceeding. Neither counsel nor I could find any prior precedent where this kind of Charter violation had occurred. Accordingly, my Reasons in the present case appear to be the first written judgment in Ontario relating to this issue. Some remedial steps have already been taken by the Toronto Police, as will be discussed below, and I can order additional remedial steps.

In all the above circumstances, I am satisfied that the s. 8 violation in this case is in the mid-range of gravity. Accordingly, the first set of Grant factors favours exclusion of those wiretaps and/or the real evidence that was “obtained in a manner” that violated the Charter.

In my view, the second set of Grant factors does not favour exclusion of the evidence. As summarized above, when discussing the remedy of a stay, the police did not use the “Session 15” intercept in any way. It did not assist the investigation and it did not lead to the discovery of any evidence. There is no recording of it, it was eventually classified as “privileged”, and there is no suggestion that it will be used or referred to in any way at trial. There is also no evidence as to any adverse impact that the intercept had on any of Collins’ Charter-protected interests. Finally, as noted above, there is no causal connection between the over 5000 lawful interceptions of Collins’ communications and the one isolated Charter violation. There is similarly no causal connection between the lawful seizure of drugs, incident to a lawful arrest in Sudbury on April 18, 2020, and the subsequent Charter violation on April 19, 2020. The connection is contextual and, to some extent, temporal. [Emphasis added].

(ii) The second Charter violation

[19] Turning to the second Charter violation, it is set out in the second ASF filed at the guilty plea proceedings. Collins was arrested in Sudbury on April 18, 2020 after he pulled into a gas station. The “Project Sunder” investigators had reasonable grounds to believe that Collins was transporting cocaine and fentanyl to Manitoulin Island, based on the wiretap investigation in Toronto. They communicated these grounds to a senior OPP liaison officer and he, in turn, communicated the grounds to Det. Sgt. Miller who is based in Sudbury. Det. Sgt. Miller is the supervisor and team leader of the OPP’s Organized Crime Enforcement Bureau in Sudbury. He has been a police officer for over 23 years.

[20] Det. Sgt. Miller and his team located Collins’ car and observed it pulling into a gas station in Sudbury at about 10:00 p.m. The OPP team had requested assistance from the Sudbury Police Service Tactical Unit and these tactical officers also arrived at the gas station. Collins’ car stopped at the gas pumps, he exited the car, entered the gas station convenience store, and went into the bathroom. The bathroom door was locked and one of the tactical officers obtained the key, entered the bathroom, and placed Collins under arrest after he had finished urinating. This tactical officer, Det. Cst. Epps, handcuffed Collins and conducted a brief pat search. At this point, Det. Sgt. Miller arrived, took custody of Collins, and escorted him outside. It was 10:12 p.m.

[21] Det. Sgt. Miller advised Collins of the reasons for his arrest and his right to counsel, and then gave the standard police caution about the right to remain silent. Collins replied that he understood his right to counsel, that he wished to speak to counsel, and that he would exercise this right once they went to the OPP detachment. While Det. Sgt. Miller was providing information to Collins about the above rights, Collins was also asking questions such as “why am I being arrested, what information do you have, what makes you believe I have drugs”? After completing the above cautions, Det. Sgt. Miller had a “brief conversation” with Collins. He described this conversation as follows in his testimony at the preliminary inquiry:

“I offered an opportunity to tell us where, as I often do in these types of situations … I often provide what I call … an opportunity to tell me where the drugs are.”

[22] Det. Sgt. Miller was asked at the preliminary inquiry whether he understood the correlative duty on the police under s. 10(b) of the Charter, to “hold off” on questioning an arrested suspect until after they have exercised an expressed wish to speak to counsel. He replied:

“… yes, I understand that … When I asked him this question, I always tell them, ‘you have a right to speak with counsel … You don’t have to answer these questions.’ … I explained the whole procedure of they have an opportunity to speak with counsel at that point, at that time, if they want to use a cell phone, although it’s difficult to provide privacy due to safety concerns, or they can wait until the detachment … I leave it up to them. And if they say “No”, I don’t belabour the point. I say “Fine” … and tell them, “You don’t have to answer me”, and that we will provide counsel if he request it at that point.”

[23] Collins replied that he “didn’t know anything about drugs in the vehicle.” As a result, no incriminating statement was obtained. Det. Sgt. Miller handed custody of Collins over to Det. Cst. Dawson who transported Collins to the OPP detachment. At 11:20 p.m., Det. Cst. Dawson spoke to Collins in the cell area and asked for the name of his counsel of choice. Collins provided two names, including Kim Schofield. Det. Cst. Dawson did a Google search for Ms. Schofield, confirmed this was the lawyer who Collins wanted to speak to, and proceeded to put Collins in touch with Ms. Schofield. They spoke privately over the telephone and their call was not intercepted, presumably because Collins was not using his own cell phone (which was being wiretapped) but was using an OPP detachment phone.

[24] As noted above, the Crown concedes that Det. Sgt. Miller violated Collins’ s. 10(b) Charter rights when he questioned Collins about the location of drugs in the car, shortly after arrest and before Collins had an opportunity to exercise his request to speak to counsel. I will assess the gravity and impact of this Charter violation in more detail, in a subsequent section of these Reasons, when considering the requested remedy of a sentence reduction. However, there is no doubt that the violation was relatively serious. Det. Sgt. Miller is a senior experienced officer and the duty to “hold off” has been clearly established since the earliest days of the Charter. See, e.g., R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 at 392 (S.C.C.); R. v. Ross and Leclair (1989), 1989 CanLII 134 (SCC), 46 C.C.C. 129 at 134-138 (S.C.C.); R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.); R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 at 375 (S.C.C.). Furthermore, Det. Sgt. Miller appears to routinely violate this correlative duty in other cases, by his own admission. Had he succeeded in obtaining an incriminating response from Collins, it might well have compromised the subsequent seizure when the car was searched. In light of Collins’ exculpatory response, the s. 10(b) violation had little impact on his Charter-protected interests.

(iii) The third Charter violation

[25] Turning to the third and last Charter violation, Collins alleges that the strip search carried out by OPP officers in Sudbury, shortly after the above events, violated s. 8. The Crown contests this alleged violation. The strip search was carried out by Det. Cst. Dawson and another male officer at the OPP detachment, after Collins had spoken in private with his counsel Ms. Schofield. The main issue is whether the OPP officers had reasonable and probable grounds to believe a strip search was necessary, as required by R. v. Golden (2001), 2001 SCC 83, 159 C.C.C. (3d) 449 at para. 98 (S.C.C.). There is also an issue about failing to keep a proper record concerning the strip search. The relevant facts are set out in the second ASF filed at the time of the guilty pleas, in the preliminary inquiry testimony of the officers, and in the further cross-examination of two officers at the hearing before me.

[26] The background facts relating to the arrest of Collins in the bathroom at the Sudbury gas station have already been set out above. He was then taken to the OPP detachment in Sudbury and his request to speak to counsel was facilitated by Det. Cst. Dawson, as also set out above. It was shortly afterwards that the strip search was carried out in a washroom at the OPP detachment. I am satisfied that the strip search was carried out in a manner that complied with Golden, and Ms. Schofield wisely concedes this point. It is agreed that the washroom is in “a secluded area of the detachment”, that it is “out of view of the holding cells and the [surveillance] camera [in the detachment]”, that Collins was “the only person in the washroom”, that only two male officers were present and they stood outside the open washroom door, that the only persons who were on camera were the two officers, and that “there was no physical contact” between the officers and Collins during the search (as confirmed by the surveillance camera). In other words, it was Collins who removed each article of clothing while inside the washroom and while the officers observed him from their position outside the washroom door. Collins removed each item of clothing incrementally, one item at a time, and he was never completely naked. This form of visual, incremental, and partial strip search in a secluded location reduces the impact of a strip search on Collins’ privacy interests.

[27] Turning to the real issue, which is the grounds for the search, I am satisfied that it was Det. Sgt. Miller who authorized the search, and so it is his grounds that matter. There was some ambiguity in the evidence about this issue. Det. Cst. Dawson carried out the strip search at the detachment, but he testified at the preliminary inquiry that Det. Sgt. Miller “authorized it”. Det. Sgt. Miller was not at the detachment, as he was in charge of the search of Collins’ car at the gas station. Det. Sgt. Dawson phoned Det. Sgt. Miller, they reviewed the grounds over the telephone, and Det. Cst. Dawson “received authorization to conduct the search from Det. Sgt. Miller” (as the ASF puts it). Det. Cst. Dawson repeated this evidence before me, and he was a credible witness. The only source of ambiguity is that Det. Sgt. Miller testified that, at the time of this search in April 2020, the OPP did not have a formal written “authorization procedure” for strip searches. As a result, each officer could make “his own determination”. Now there is a policy that requires “Sergeant level approval” that must be filled out on a form. Nevertheless, Det. Sgt. Miller agreed that Det. Cst. Dawson phoned him, they reviewed the grounds for a strip search of Collins, and Det. Cst. Dawson asked “if I approve.” Det. Sgt. Miller replied “Yes”. During the Crown disclosure process, prior to the preliminary inquiry, Det. Sgt. Miller sent an email to the Crown stating, “I did authorize the strip search of the accused”. In his testimony at the sentencing proceedings before me, Det. Sgt. Miller stated that Det. Cst. Dawson would not have proceeded with the strip search without Det. Sgt. Miller’s approval. From my observations of the two officers, and on the basis of all the above evidence, I am satisfied that Det. Sgt. Miller authorized the search. This complies with the “framework” set out in R. v. Golden, supra at para. 101 concerning authorization “by a police officer acting in a supervisory capacity”.

[28] Det. Sgt. Miller testified that his grounds for authorizing the strip search in this case were as follows:

• first, the grounds for arrest that were communicated to him by Det. Sgt. Dyell were that Collins was reasonably believed to be transporting fentanyl and cocaine, on his way to Manitoulin Island;

• second, he had only located cocaine and “not the fentanyl” during the search of Collins’ car;

• third, fentanyl is a “potent substance” that can be “carried in smaller quantities”;

• fourth, in his experience “fentanyl is commonly secreted on someone’s person … usually in smaller amounts than … cocaine and other substances”, which makes fentanyl “more difficult to find”. In this regard, Det. Sgt. Miller had 23 years experience as a police officer and had worked in the OPP Drug Enforcement Unit for seven years before joining the Organized Crime Enforcement Bureau; and

• fifth, Collins had “an opportunity in the bathroom [at the gas station] to hide those drugs on his person”.

[29] The entire focus of the evidence and argument concerning the sufficiency of Det. Sgt. Miller’s grounds was on the fifth and last of the above five grounds. There was no challenge to the first four grounds. Furthermore, the only issue in relation to the fifth ground arose from the fact that Det. Cst. Epps, was the Sudbury police tactical officer who first entered the gas station bathroom and arrested Collins. He undoubtedly saw that Collins was urinating at the time when he (Det. Cst. Epps) first entered the bathroom. Det. Cst. Epps allowed Collins to finish urinating and then arrested and handcuffed him. Det. Cst. Epps testified that he also checked the toilet, which was not flushed, and he saw that there were no narcotics in the toilet. As a result, he had no concerns about “the destruction of evidence or discarding of evidence”. Finally, Det. Cst. Epps testified that he could see Collins’ penis while he was urinating but not “any other body parts”. He did not see any drugs hidden in this one area that “was exposed”.

[30] The above observations of Collins urinating in the bathroom were undoubtedly made before Det. Sgt. Miller arrived and took custody of Collins. However, Det. Sgt. Miller and Det. Cst. Epps had a conversation about the above events in the bathroom, shortly after Det. Sgt. Miller arrived. Det. Cst. Epps testified that he told Det. Sgt. Miller that “the toilet was empty of narcotics”, that Collins “was, in fact, urinating”, and that there were no “concerns of disposal of evidence”. Det. Sgt. Miller’s recollection of the conversation was that he was told Collins was “standing there” when Det. Cst. Epps entered the bathroom, that the toilet was not flushed, that there was no altercation, and that Collins was compliant upon arrest. Det. Sgt. Miller testified that the purpose of this conversation with Det. Cst. Epps was to determine whether there was any altercation or injuries upon arrest and to determine “where the drugs would be, if they were flushed, if he was siting on the toilet, if he was in the process of urinating, that was important to me at the time”. Det. Sgt. Miller testified that he was not told that Collins was urinating.

[31] Neither Det. Sgt. Miller nor Det. Cst. Epps had any notes of this conversation, it was brief, they were at the early stages of an arrest that was being carried out on behalf of a major Toronto wiretap investigation, they had not yet searched for the drugs that they were expecting to find in the car or on Collins’ person, and they were testifying about events that occurred some time ago in April 2020. In these circumstances, it is not surprising that the two officers have somewhat different recollections about exactly what was said in the conversation. In my view, neither of their accounts is particularly reliable, in the above circumstances. What is important, is that both officers agree that their focus was on whether there had been any loss or destruction of evidence by flushing it down the toilet. In that regard, the events in the bathroom eliminated any such concern, according to both officers. This has minimal impact on the grounds for a strip search, where the focus is on secreting evidence on the person.

[32] Nevertheless, Det. Sgt. Miller was frank in acknowledging that it would have had some impact on his grounds for authorizing a strip search, had he known that Collins went to the gas station bathroom to urinate. In this regard, he testified that he believed Collins’ trip to the bathroom provided an “opportunity … to hide those drugs”, that this “added to the grounds” for the strip search, and that it “could have affected” his grounds if he had known that the reason for the trip to the bathroom was to urinate. In re-examination at the hearing before me, Det. Sgt. Miller testified that even if he had known that Collins was urinating, that would not have excluded his concerns that Collins was transporting drugs on his person. He further testified that seeing Collins urinating did not reveal whether he was secreting drugs between his buttocks or in his anus [emphasis added].

[33] In my view, Det. Sgt. Miller’s first four grounds provided a proper basis for concluding that there were reasonable and probable grounds to authorize a strip search. The failure to find fentanyl during the search of the car, the nature of fentanyl, the common practice of hiding fentanyl on the person, and the grounds to believe that Collins was transporting fentanyl, all combined to provide a strong basis for authorizing a strip search. The fact that Det. Sgt. Miller’s fifth ground was somewhat mistaken does not affect the sufficiency of his other four grounds (it was only somewhat mistaken because Collins was in the bathroom for a period of time before Det. Cst. Epps obtained the key and entered, so there was still some opportunity to secrete drugs on his person while he was in the bathroom). In any event, when reviewing the sufficiency of grounds to arrest or to search under the Charter, the issue is not whether the police were mistaken about one or more of their grounds. The issue is whether they reasonably believed their grounds. See: R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at paras. 28-31 and 40-41 (S.C.C.); World Bank Group v. Wallace 2016 SCC 15, [2016] 1 SCR 207 at paras. 119-134; R. v. Phan (2020), 2020 ONCA 298, 387 C.C.C. (3d) 383 at para. 63 (Ont. C.A.).

[34] I am satisfied that Det. Sgt. Miller reasonably believed his five grounds for authorizing a strip search in this case. His mistake about some of what Det. Cst. Epps told him about Collins’ trip to the gas station bathroom was understandable and reasonable, in all the circumstances set out above. In any event, the other four grounds provided a sufficient basis for the strip search.

[35] The subsidiary issue in relation to this third Charter violation is whether the police failed to keep a proper record of their grounds for the strip search, and of the manner in which they carried out the strip search. This is part of the “framework” or “guidelines” for s. 8 compliance, as set out in R. v. Golden, supra at para. 101. There is no dispute that the OPP officers noted the fact of the strip search but they did not make notes of their grounds or of the manner in which the search was carried out. Nevertheless, I am satisfied that their sworn testimony provided a reliable account of four of their five grounds for the strip search and provided a reliable account of the manner in which it was carried out. Furthermore, the manner in which the strip search was carried out was reliably corroborated by the surveillance camera in the detachment. None of this is disputed. In addition, the lack of a reliable record or reliable testimony about one aspect of the fifth ground has had no impact on the alleged s. 8 violation. Finally, it has been held that in some circumstances the failure to keep a proper record of a strip search is a “minor deviation from the Golden guidelines, insufficient to found a Charter breach.” See: R. v. Davis, 2020 ONCA 748 at para. 22.

[36] For all the above reasons, I am satisfied that the strip search did not violate Collins’ s. 8 Charter rights.

D. FACTS RELATING TO THE OFFENDER

[37] Collins was born on August 6, 1994. He was age 25 and 26 at the time of the present offences in 2020. He is now age 29. Ms. Schofield filed a large number of helpful documents and letters and she called Collins to testify under oath at the sentencing hearing. I have relied on all these sources in order to set out the following account of Collins’ antecedents.

[38] Collins’ mother was 17 years old when he was born. She led a troubled life, working as a stripper while selling and using drugs. His mother would leave Collins with friends and neighbours during the first three years of his life. At age three, Collins was taken to live with his father because his mother was otherwise going to give up custody of the young child to the CAS.

[39] Collins’ father also led a troubled life as he was in and out of jail during these early years. However, he was living with a woman named Sharon Slacks. She is a person with pro-social values who has worked her entire life. She became Collins’ stepmother. Ms. Slacks bonded with the young child and became an important influence and ongoing source of maternal support throughout Collins’ life. He testified that he regards Ms. Slacks as his mother. The relationship between Ms. Slacks and Collins’ father was turbulent. Collins witnessed violence and domestic abuse between his father and Ms. Slacks, until he was six years old. At this point, Ms. Slacks separated from Collins’ father. There was a lengthy dispute over custody of the child for the next three years, until Collins was age nine, at which point Ms. Slacks was given full custody. Collins’ birth mother reappeared during this period and Collins had intermittent contact with her and with her family.

[40] When Collins was age 13, in 2007, his birth mother was murdered (apparently by her boyfriend). Her dismembered body was found three years later, when Collins was age 16. The boyfriend was prosecuted in highly publicized criminal proceedings. An additional traumatic event occurred during this period. Collins was age 14 and in grade 9 when his best friend was shot and killed. Collins testified that this event had a significant effect on him. Ms. Slacks was living with Collins in Parkdale, and then at Weston Road and Lawrence Avenue during this period, and Collins was the victim of armed robberies. He testified that you would be preyed on in these neighbourhoods. In particular, guns would be pulled on you during robberies unless you had protectors.

[41] Ms. Slacks moved their home and she also sent Collins to live with his father and with his aunt at various points, in order to protect him from the danger in the neighbourhoods where they lived. Collins’ father had stabilized his life by this time. He had married and he had steady work in the building trades. He reconciled with Collins and became a supportive father. As a result of all the moves to different homes, Collins switched schools a lot. He testified that he had no difficulties academically and he also played basketball in high school. However, he only completed grade 11 and did not graduate.

[42] According to Ms. Slacks, Collins was “never the same” after the above period in his teenage years when his birth mother and his best friend were both murdered and when he was the victim of dangerous gunpoint robberies. She described how he started to “become disinterested and gravitate toward a certain crowd of youth”. His aunt confirmed that the above events during Collins’ teenage years had a “profound impact on Christian”. She described “a discernible shift in his demeanour” as he “became engrossed in online engagements, bonding with individuals he labelled as friends”. His aunt stated that her “reservations about these connections sadly materialized” because Collins became involved in criminal activity. He testified that his friends were all selling drugs and so he started selling drugs, committing break and enters, and using drugs. He thought this was normal.

[43] Collins’ criminal record has 13 separate entries, as follows:

• in 2012, at age 17, he was convicted in Youth Court of simple possession of drugs. He was sentenced to probation;

• in 2014, at age 19, he was convicted of break and enter on three occasions in three separate jurisdictions. He received short jail sentences, including 5 months of pre-sentence custody followed by probation;

• in 2015, at age 21, he was convicted again of break and enter. He received an effective sentence of 8 months in jail and probation. At the same time, he was convicted of failing to comply with probation, possession of stolen goods, and simple possession of drugs. He also received a 5 year s. 110 weapons prohibition Order, which was still in force at the time of the present “Project Sunder” offences;

• in 2017, at age 23, he was convicted of three more break and enters in separate jurisdictions. On these occasions, he spent over a year and a half in pre-trial custody and received an effective sentence of about two years followed by probation. At the same time, he was convicted of simple possession of drugs and four counts of failing to comply with terms of probation and bail. More importantly, he was convicted for the first time of possession of drugs for the purpose of trafficking and received a suspended sentence and probation;

• in 2019, at age 24, he was convicted of common assault and was sentenced to probation. Significantly, this is the only crime of violence on Collins’ record;

• also in 2019, at age 24, Collins pleaded guilty to possession of drugs for the purpose of trafficking (11 grams of cocaine, and .12 grams of fentanyl), possession of ammunition contrary to the prior s. 110 Order, and breach of house arrest terms of bail. Collins had been in pre-trial custody for a year when he was sentenced to time served and 2 years probation in June 2019. These three convictions in 2019 are significant for a number of reasons: first, they took place about one year before the present “Project Sunder” offences in 2020, and so the 2019 convictions and sentence had little deterrent effect; second, the terms of probation specifically prohibited possession of controlled substances and this term was obviously violated when Collins resumed drug trafficking for the third time in March 2020; third, a new s. 109 weapons prohibition was imposed and this court order was also violated when Collins was found in possession of a loaded firearm in September 2020; and finally, Collins told the Court in 2019 that spending one year in custody had given him time to “reflect” and that he planned “to do better in future,” which was obviously an aspirational statement that did not materialize;

• Collins’ final convictions were later in 2019, at age 25, when he was convicted of theft under and fail to comply with probation. He received a short conditional sentence and one year probation. He violated this probation order when he committed the present “Project Sunder” offences in March and April 2020.

[44] One final point to note, which is probably related in some way to the above history of Collins’ criminal activities, is that he was the victim of a serious shooting in December 2019. This was shortly after the above June 2019 convictions and shortly before the March and April 2020 “Project Sunder” offences. Collins was in his car outside his home when two men approached. He started to drive away but the two men pursued him and discharged approximately 40 bullets into his car. Collins was wounded when he was hit by two of these bullets, but he survived. The two gunmen have never been identified or charged. The police investigated the shooting and it was referred to in the “Project Sunder” wiretap affidavit. See: R. v. McPherson, 2023 ONSC 232 at paras. 116-122 where some of the additional context surrounding this shooting is set out, including Collins’ gang-related associations and the gang-related rivalries at the time.

[45] Collins has been in a long-term relationship with Destiny Shaw. He has been with her for 11 years, since they met in high school. They live together common law. When Collins was arrested on September 9, 2020 for the present “Project Sunder” offences, he remained in custody until he was released at a bail hearing on October 16, 2020. He was subject to strict terms of “house arrest” until July 7, 2022, when the “house arrest” terms were substantially relaxed. The parties agree that Collins is entitled to two months credit for the short period of pre-trial custody and to some additional credit for the 1 year and 8 months of strict “house arrest”.

[46] Collins testified that he first learned, at the above bail hearing in October 2020, that Ms. Shaw was pregnant with his child. This had a significant impact on him. The way in which he responded to the pregnancy is tied up with Collins’ interest in music. He had always loved music and had begun playing around with friends, at age 13 and 14, making music on a laptop computer. His interest in making music became more serious at age 16 and 17, when he created the rap persona “Killa Da Crook” and released songs under this name. His music career was interrupted by his criminal activities and by the periods that he spent in jail, as set out above. But in 2017 and 2018, at age 23 and 24, he resumed writing and recording music, including his first rap music videos, which are posted on YouTube. Some of this rap music referred to criminal activities and it was relied on in the wiretap affidavit. See: R. v. McPherson, 2023 ONC 232, at paras. 116-122. Once Collins was released on bail in October 2020, and resumed living with Ms. Shaw, he was inspired by her pregnancy and the prospect of having a child. He testified that he began writing music and going to the studio in a much more serious way. He wanted to change and begin to make music as a business.

[47] A considerable amount of evidence was heard at the sentencing hearing about the development of Collins’ music career during the past three years, since he was released on bail, as well as the impact on him of the birth of his and Ms. Shaw’s daughter in May 2021. Ms. Shaw is presently writing her real estate licensing exams. She provided a thoughtful and articulate letter in which she stated:

Since our daughter’s arrival into our lives, Christian has embraced the role of a loving, caring, and responsible father with unwavering dedication. I truly believe she is the missing piece he needed to put his life into a hopeful perspective and encourage social-emotional growth. His relationship with our daughter is filled with affection, support, and the kind of nurturing presence that every child needs during their formative years.

In addition, Christian has shouldered the substantial responsibility of being the sole provider for our family while I pursue my studies in real estate. His dedication to our family’s financial stability has been instrumental in ensuring that we have a secure and comfortable home. He is determined to break the cycle of poverty that has affected our families in the past and desires to provide a brighter future for our daughter.

I believe Christian has changed for the better, and his current actions speak volumes about his character and commitment to rehabilitation. I kindly request the court’s consideration of his transformation when evaluating a reasonable sentencing. Recognizing the positive changes in his life could not only benefit our family but also society as a whole by allowing him to continue contributing positively to our community.

[48] Collins’ stepmother, Ms. Slacks, who is clearly a responsible person of good character, stated the following:

Christian has a love and passion for music and has created a brand that is well known amongst the youth. He works tirelessly on his brand and is looking at the next steps such as merchandising and gaming to keep his brand relevant. His current brand name is “Against all Odds”.

Christian has had the same girlfriend (Destiny) for 9 years and they now have a child together, who will be turning two years old in May. Christian is a protective, engaging father and tries to do his best to support his family and their future goals.

[49] Collins’ aunt, who also appears to be a responsible person of good character, stated the following:

2021 heralded a beacon of transformation. The birth of his daughter marked a profound change in Christian’s life. His palpable love, nurturing spirit, and inherent protective instincts for his child showcased his growth. This newfound fatherhood role prompted a re-evaluation of his priorities, propelling him towards commendable personal growth.

Christian’s steadfast dedication to personal evolution is admirable. Fueled by a drive to rise above adversities, he consistently strives to be the best version of himself, especially for his daughter. This resilience, juxtaposed against a backdrop of a tumultuous past, is a testament to his character.

In conclusion, Christian Collins is a beacon of the human spirit’s enduring capacity for growth, change, and redemption. His journey from a child yearning for stability to a dedicated father is deeply moving. Grounded in my diverse experiences and steadfast beliefs, I wholeheartedly vouch for Christian’s character, optimistic about the bright future he’s carving for himself and his family.

[50] People who have worked with Collins in Toronto in the past three years also provided helpful evidence about his recent work and about the related changes in Collins’ behaviour and associations. In particular, the owner of Barclay Management Media Productions stated the following:

I met Christian in 2016 and noticed that he had a passion for music. It was also obvious that he had some shady characters around him.

I did not see Christian for a few years and became reacquainted with him in November 2020. At that time I started working with Christian twice a week at the studio, Christian explained to me that he had serious legal issues that he was concerned about and that he had a baby on the way. He also communicated that at this time in his life he wanted to focus on his family and make good music. I did notice that Christian was only coming to the studio with his sound engineer and cameraman and not those shady characters I was concerned about.

I have seen Christian make a lot of changes and I have helped him grow his fan base, even his music has evolved. Christian has also volunteered to assist other young artists develop their music skills, and has started to produce and make his own brand merchandise.

I will continue to support Christian and be a positive mentor throughout his professional and personal life.

[51] Similarly, the owner of MB Contracting Inc., a company that builds homes, stated the following:

I have known Christian for 7 years and have witnessed his incredible transformation over time. Despite facing challenges in the past, Christian has shown immense determination and resilience in turning his life around. He has taken responsibility for his actions and has actively sought opportunities for personal growth and improvement. One area that I have noticed tremendous progress and development from Christian is with respect to his passion for music and development as an artist. Christian is extremely talented within his field of producing music and over the years has developed a significant following of fans through social media platforms such as Instagram, YouTube, and Spotify. When I met Christian, he had a minimal following but over the years through his creativity, character advancements, and quality of music he has developed a following of over 40,000 followers on Instagram and 12,000 subscribers on YouTube.

Outside of his realm of creating music, I have also seen Christian demonstrate qualities such as perseverance, honesty, and a strong work ethic while being by my side and volunteering to assist me when I am short-staffed.

[52] Collins testified that upon his release on bail in October 2020, he sought advice from two important and successful businessmen, in order to develop his music career in a more ambitious and professional way. He also worked with these two men in order to use his music career as a form of community service, trying to help young people develop their talents, turn away from crime, and gain insight into their behaviour. These two businessmen who helped Collins with advice and direction are Carl Blackman and Ajay Saxena. Mr. Blackman owns Gallery 223 which is a commercial studio space where young artists work and where merchandise that promotes the artists (such as hats and t-shirts) is manufactured. Mr. Blackman is also the director of “Lead to Change,” a non-profit program “where young people of colour are able to learn, develop and succeed through the power of transformative arts and wellness.” He stated the following:

I met Christian in 2017 through some music industry contacts and he has been a great help with our recording arts students. We had the pleasure of having him share his story of getting into the music industry and giving students in our program both recording and marketing advice to help advance their individual careers. Christian also participated and donated to our non-profit-led charitable event in December 2022 in the neighbourhood he grew up in.

People like Christian that have lived experiences through making bad decisions are beneficial to our program as they speak the same language and can reach out in a familiar way to keep our young people focused on their passion and careers. Not everyone takes their own personal time to assist in this way which speaks volumes about his character. I have received positive feedback from some of our youth regarding Christian’s interactions and look forward to his contributions in the future.

Mr. Blackman provided a certificate confirming that Collins had given 60 hours of volunteer community service at two “Lead to Change” charity events while he was on bail in 2022 and 2023.

[53] Ajay Saxena is a Director at Warner Music Canada. Collins testified that Mr. Saxena is a leader of the music industry in Toronto. Mr. Saxena stated the following:

I am writing this letter to express my support for Christian Collins.

I’ve observed Christian coach young artists in the music space in studio in several different ways. Whether it was helping create ideas for songs, meaningful advice on how to stay focused and confident in such a high stress industry and/or sharing contacts with these young artists of music industry professionals that could help take them to the next level.

In addition to Christian helping in the music space; he has also helped my team and I with our community givebacks. From “Back To School” givebacks to providing turkeys to families in need for Thanksgiving; Christian has donated a healthy amount of time and funding to help those in need which says a lot about his character and what really matters.

With the birth of his daughter who is now two years old; Christian has been and continues to be on a spiritual journey and has really matured with his goals. He’s mentioned learning from his mistakes and consistently being around the right energy is very important for him. I have personally noticed a huge change even in simple things like conversation. He is writing down his goals and achieving them one at a time, which is very commendable.

[54] Collins testified that he is now taking a much more business-like approach to his music career, as a result of the help and advice he has received. He has 65,500 listeners on Spotify and he is also on Apple Music. This provides one stream of income. He also collaborates with other artists, making “features”, which provides another stream of income. In addition, he is selling merchandise under his “Against All Odds” brand, obtaining Canadian artist grants, and booking shows which all provide further streams of income. Based on these multiple streams of income from his music career, he estimated that he earned between $50,000 and $70,000 last year and he anticipates doubling that income next year and making between $120,000 and $150,000. As a result, he is actually “making a living” from his music and he is able to “provide for his family like a man”, as he put it. He appears to have a sense of pride and purpose. He testified that he cannot go back to his previous life as it would put his family in jeopardy. He never used to think about the future. Now he believes that he has something to lose, namely, his family with Ms. Shaw and his two year old child, as well as his successful music career with the income that allows him to provide for his family. Various documents filed on the sentencing hearing, relating to financial grants, merchandising, music distribution, and booking shows, all tend to confirm the recent success of Collins’ music career.

[55] The final area of evidence relating to Collins’ personal growth and development in the last three years concerns his mental health. Collins testified that he received counseling for about ten months in 2015, when he would have been age 20 and 21. He was diagnosed with PTSD, as a result of the violence that surrounded him when he was growing up. He acknowledged in his testimony that he was not really committed to counseling at this time. His stepmother, Ms. Slacks, stated that she believes Collins suffers from PTSD, noting that he is always anxious and worried. She encouraged him to seek counseling. After his guilty pleas before me on May 8, 2023, Collins attended seven counseling sessions, in July and August 2023, with Carole Eastman of HOW Recovery Counselling Services. Collins testified that these counseling sessions with Ms. Eastman have been very helpful. He began to have insight into the trauma that he experienced when he was young, its effect on his mental health, and how it has been helpful to acknowledge his vulnerabilities and to begin addressing them.

[56] Ms. Eastman provided a report and stated the following:

During our time together, Mr. Collins was able to process and make sense of “what happened to him” and what has given him the ability to overcome the many adversities/challenges he has experienced during his life.

Mr. Collins experienced many adverse traumatic events growing up, which the traumatic stress field has adopted the term as “complex trauma” to describe the experience of multiple, chronic, and prolonged, developmentally adverse traumatic events that occur within the child’s caregiving system.

Complex traumas often result in the development of maladaptive survival styles into adulthood. Adults who have experienced childhood traumas very often continue to struggle with profound difficulties in various areas such as, emotional regulation, self-perception (low self-esteem/shame), relationships to others (inability to trust), systems of meaning (low sense of purpose/belonging).

However, the good news is the individual can heal and experience profound positive changes and find new meaning and enthusiasm for life, often referred to as Post-Traumatic Growth, “PTG”. PTG happens when someone who has struggled to survive is essentially forced to reevaluate their core beliefs as they try to make sense of what happened to them. Research on positive changes in the aftermath of adversity has highlighted the tendency for people to report growth in five domains: Interpersonal relationships, the perception of new possibilities for one’s life, personal strength, spirituality, and appreciation for life. In addition, the unique life experiences often reported by highly creative individuals suggest that adversity may actually have played a critical role in fostering their creativity, and that increased creativity could therefore constitute a manifestation of PTG.

It appears evident during our sessions that over the past few years, Mr. Collins has experienced PTG. His creativity emerging with his talent as a successful musician which provides for him a sense of purpose/meaning, a way to express his emotions/pain/healing, and most importantly, ability to feel human connection and a positive sense of self (self-esteem).

Mr. Collins has also fostered successful intimate relationships, love and nurturing. The long-term relationship with his partner of many years and the birth of his daughter who is now 2 years of age, has provided a new sense of responsibility, nurturing attachment & love, giving true internal motivation to growth/change.

His developed sense of human connection and belonging, love and nurturing, and own lived experience, has also provided Mr. Collins with a great sense of empathy for others and the desire to give back to his community and help other youth that have suffered similar traumatic experiences, providing hope, strength and courage.

As part of the counselling, I provided Cognitive Behavioral Therapy skills to Mr. Collins, on how to challenge distorted negative thinking, reframing thoughts to rational positive thinking, thus resulting in increased emotion regulation. Anger management was also provided. Learning skills on how to differentiate unhealthy anger versus healthy anger and how to express and manage one’s anger appropriately, using effective interpersonal communication skills, such as assertiveness & boundaries, and responding rather than reacting.

Overall, Mr. Collins was very pleasant to work with, enthusiastic, open, honest and demonstrates a high degree of internal motivation to continue his successful journey of personal growth.

[57] Collins testified that he is committed to continuing his counseling with Ms. Eastman in the future. He no longer thinks that his previous life was “normal”, because his present life is so different. He also plans to continue volunteer work with young people at Mr. Blackman’s “Lead to Change” program. He testified that when he tells young people that “jail is not cool” and that people actually get killed from guns and drugs, based on his own “lived experience”, the young people will “put down their phones and really listen”. No one ever talked to Collins like this, based on their own real life experience, when Collins was young.

[58] Finally, Ms. Schofield questioned Collins as to what he now thinks about his admitted Count One criminal conduct, involving the trafficking of hard addictive drugs to poor Aboriginal people on Manitoulin Island who would pay him with their welfare cheque money. Collins struggled for words to explain how he felt. He testified that it was “very low” and “very insensitive” to benefit financially from others’ mental illness and addiction.

[59] There was no challenge to Collins’ credibility as a witness at the sentencing hearing. I watched him and listened to him carefully. In my view, he was a credible witness. In this regard, the substantive content of his testimony was strongly supported by all the corroborating documentary evidence and letters that were filed by the defence.

E. THE POSITIONS OF THE PARTIES

[60] At the JPT in my chambers on April 18, 2023, when resolution discussions began, senior counsel for the Crown at that time advised that the Crown would seek a total sentence of 6 to 8 years in jail after convictions at trial but that, if Collins pleaded guilty prior to the upcoming trial date, the Crown would seek 3 to 5 years in jail. Ms. Rhinelander, who was acting on behalf of the Crown at that time, took the position that this sentence was well below the normal range and that it took into account the present significant mitigating effect that guilty pleas have on the Court’s heavily congested docket of serious trials. In addition, the two Charter violations and any efforts by Collins at reformation that might be established at the sentencing hearing, would justify the Crown’s lenient position on sentence.

[61] In his submissions on behalf of the Crown at the sentencing hearing on September 5, 2023 (after the appointment of Rhinelander J. to this Court), Mr. Kerbel submitted that four consecutive sentences would normally be required for Count One (cocaine trafficking), Count Five (s. 95 firearms possession), Count Eight (s. 109 firearms prohibition violation), and Count Ten (possession of cocaine for the purpose of trafficking). Relying on the relevant aggravating and mitigating circumstances, and based on authoritative cases setting out the normal ranges of sentence for these four offences, Mr. Kerbel submitted that the four consecutive sentences would total 7 to 9 years, which should be reduced to 6 to 8 years in light of the totality principle. This was the same position that Ms. Rhinelander had taken at the earlier JPT, in the event that Collins was convicted after trial. Mr. Kerbel, of course, did not attempt to resile from the much-reduced total sentence of 3 to 5 years that the Crown had agreed to seek, in the event that Collins pleaded guilty prior to the scheduled trial date. When reminded of this position that the Crown had taken at the initial JPT, prior to Collins’ guilty pleas, Mr. Kerbel made it clear that he relied on the normal 6 to 8 year range in order to illustrate the leniency of the Crown’s 3 to 5 year position on a guilty plea.

[62] On behalf of the defence, Ms. Schofield submitted that there were exceptional circumstances in this case. Indeed, she submitted that it was an extraordinary case in light of the unusual convergence of strong mitigating circumstances in three distinct areas, namely: Collins’ complete reformation; the two Charter violations; and the social context of extreme violence in which Collins grew up, and its impact on his moral culpability. She submitted that these exceptional factors moved the case out of the bottom end of the Crown’s 3 to 5 year range and justified a sentence of 2 years less a day. That sentence could and should be served in the community, pursuant to s. 742.1, as a conditional sentence. In that way, Collins would continue on his path of reformation by working and providing for his family, doing volunteer work for programs like “Lead to Change” that benefit the community by preventing crime, and continuing with his successful program of counseling.

[63] It can be seen that there is not a significant distance between the Crown and the defence, in terms of the length of the sentence. Two years less a day and the three year bottom end of the Crown’s range are only 1 year apart, assuming that Ms. Schofield’s three broad areas of significant mitigating circumstances would at least entitle Collins to the bottom end of the Crown’s range. However, the difference between a 3 year jail sentence and a maximum 2 years less a day conditional sentence is arguably significant. In my view, that is the main issue on this sentencing hearing.

F. ANALYSIS

[64] The principles of sentencing are set out in ss. 718 to 718.2 of the Criminal Code. The fundamental principle of sentencing is “proportionality”, namely, that the sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”, as set out in s.718.1.

[65] This is a particularly difficult sentencing decision. Indeed, it may be the most difficult sentencing decision that I have encountered. That is because factors relating to the gravity of the five offences normally call for a deterrent and denunciatory jail sentence whereas factors relating to the moral culpability and reformation of the offender argue for a community-based sentence. As a result, the appropriate sentence is a close judgement call.

[66] The aggravating factors, in my view, are as follows (I am grouping all five offences together when listing these factors):

• First, Collins is a recidivist and he is now 29 years old. Most importantly, in this regard, the present cocaine trafficking convictions (Counts One and Nine) are this third and fourth convictions for this offence. On the other hand, the s. 95 firearms conviction (Count Five) is Collins’ first firearm possession conviction;

• Second, Collins violated two probation orders and two s. 109 and s. 110 weapons prohibition orders at the time of these offences. The June 2019 probation order and s. 109 weapons prohibition order were both recent and the probation order specifically prohibited possession of controlled substances;

• Third, the March and April 2020 cocaine trafficking was particularly predatory because it involved trips from Toronto to the M’Chigeeng First Nations Reserve on Manitoulin Island. These trips were timed to coincide with the delivery of social assistance cheques and were calculated to exploit the higher prices paid for illicit drugs in a remote and vulnerable community (as compared to Toronto). See: R. v. Parranto and Felix, 2021 SCC 46 at paras. 70-71;

• Fourth, cocaine is a hard addictive drug that causes significant harms, both to cocaine users and to the communities where they live;

• Fifth, possessing a loaded firearm in conjunction with drug trafficking is particularly dangerous. Loaded handguns are used to protect and enforce the illegal drug trade and they directly cause death and serious injury.

[67] I recently summarized the leading authorities relating to these offences and these aggravating factors, holding that denunciation and deterrence are the predominant sentencing objectives in such cases. See: R. v. Graham, 2018 ONSC 6817, aff’d 2020 ONCA 692 at paras. 24-27. I will not repeat that analysis and adopt it for purposes of these reasons. However, it should be noted that the above aggravating circumstances in the present case are nowhere near as serious as those in Graham, for a number of reasons. First, Collins has no prior convictions for possession of a firearm. In addition, he has no prior convictions for any crimes of violence except for one common assault in 2019 for which he received probation. Second, the Crown concedes that Collins is a gram level or street level trafficker. In other words, he is at the bottom end of the drug trade hierarchy, unlike Graham (which involved mid-level ounce trafficking of cocaine) and unlike Parranto (which involved trafficking wholesale amounts of fentanyl). Third, Collins’ recidivism and his breaches of recent court orders would normally signal a strong need for specific deterrence, as it did in Graham. However, as will be discussed below, I am satisfied that Collins has used the three years since his release on bail to completely change his life. As a result, there is no longer any concern about specific deterrence in this case.

[68] Turning to the mitigating circumstances, they are as follows:

• First, Collins’ guilty pleas have substantial mitigating effect. This Court has a backlog of serious cases at the present time, due to a number of contributing factors. As a result, judges of this Court have been giving significant sentencing reductions in order to reflect the value of guilty pleas to the administration of justice. In addition, Collins’ guilty pleas are consistent with the recent changes in his life. They reflect his present willingness to acknowledge who he was at the time of the offences and to admit that his conduct was very “low” and “insensitive”, as he put it;

• Second, Collins’ moral culpability is reduced by the extraordinary challenges he encountered when growing up. The murder of his birth mother when he was 13, the murder of his best friend when he was 14, and the armed robberies that he was subjected to in the neighbourhoods where he was living during this same time period all had a significant impact, according to a reliable body of evidence (and according to common sense). The related social context surrounding these events was that his home was unstable, he moved frequently, he changed schools frequently, he never finished high school, he became involved with criminal associates, and he believed that leading a criminal lifestyle was the “normal” thing to do, as he put it. The further result of these early events is that he has been diagnosed with PTSD. The fact that he now appears to have overcome these significant challenges, as will be discussed below, suggests that he has considerable inner fortitude and resilience;

• Third, Collins has the good fortune to have a father who eventually turned his own life around and became a source of paternal support. More importantly, Collins’ stepmother Ms. Slacks became an early and constant source of maternal help and guidance. She has stood by Collins through all of his challenges. Most importantly, Collins has a long-term common law wife, Ms. Shaw, who is obviously committed to him and who is the mother of his child. These three people are hard-working pro-social individuals. They provide some of the present circumstances that have supported Collins’ reformation. In addition, his reformation has been further supported and directed by advice and guidance from successful businessmen like Mr. Blackman and Mr. Saxena. In other words, there appears to be a strong network of pro-social supports around Collins;

• Fourth, Collins was personally inspired, both by Ms. Shaw’s pregnancy and by his own love of music, to turn his life around. When he was released on bail three years ago, he set about becoming a successful musician who could support his family. I have already summarized the impressive body of evidence called by the defence at the sentencing hearing concerning Collins’ progress during the last three years. I am satisfied that he is completely reformed. Indeed, I do not recall another case where I have seen such a complete and successful reformation prior to sentencing. That reformation has many facets: a successful career; a strong family life; community service that may help prevent other young people from leading lives of crime; and successful counseling related to Collins’ own mental health issues;

• Fifth, Collins’ Charter rights were violated in two relatively serious ways. I will discuss the potentially mitigating effect of these Charter violations in greater detail below;

• Sixth, Collins has conducted lengthy pre-trial litigation in this case in a focused, efficient, and responsible manner, through his counsel. Although his guilty pleas were entered shortly before the trial date, this was because of the ongoing complex s. 8 issues surrounding the interception of Collins’ solicitor and client phone calls. This was the most meritorious argument that I heard in the lengthy “Project Sunder” pre-trial Charter litigation and Ms. Schofield conducted it responsibly, with both skill and determination but also with the wisdom and judgment not to pursue weak arguments; and

• Seventh, Collins is entitled to two months credit for pre-trial custody and to some additional credit for one year and eight months of strict “house arrest” bail.

[69] The fifth mitigating circumstance summarized above is the s. 24(1) remedy of a sentence reduction, in response to a finding that the accused’s Charter rights were violated. This is a relatively rare Charter remedy. It arises most often in cases where the police have used excessive force or lengthy arbitrary detention or repeated unnecessary strip searches in the course of an arrest or detention. These kinds of Charter violations have some punitive or degrading effect on the accused. It is these kinds of effects that clearly relate to the principles of sentencing, in the sense that the accused has already been subjected to some form of punishment, hardship, harm, or prejudice. In the leading case, R. v. Nasogaluak, supra at paras. 1-4 and 47-63, the Court held that a Charter violation “which impacts the offender may also be a relevant factor in crafting a fit sentence” but where “the state misconduct does not relate to the circumstances of the offence or the offender … the accused must seek his or her remedy in another forum” [emphasis added]. Also see: R. v. Griffith, 2019 ONSC 358 at paras. 25-30, aff’d 2021 ONCA 302 at paras. 82-88; R. v. Glykis (1995), 1995 CanLII 1277 (ON CA), 24 O.R. (3d) 803 (C.A.); R. v. Claros, 2019 ONCA 626 at paras. 70-75; R. v. Ebanks, 2012 ONSC 5002.

[70] I am satisfied that the two Charter violations in the present case had some prejudicial or harmful impact or effect on Collins. Both violations were relatively serious, in a broad institutional sense, because they related to fundamental well-known aspects of the administration of justice, namely, the sanctity of solicitor and client confidentiality and the right to consult counsel on arrest and upon request, prior to being questioned. The violations were not serious, in a narrower sense, because they had no impact on the success of the investigation and did not result in the police obtaining any relevant evidence or any advantage in the prosecution. The one adverse effect or impact on Collins, as Ms. Schofield submitted, is that these kinds of Charter violations inevitably diminish an accused’s confidence that his future phone calls to his lawyer will be private and confidential and that his future right to contact counsel before being questioned will be respected. However, it should be noted in this regard that I ordered a relatively strong institutional remedy, to hopefully prevent similar wiretap violations of solicitor and client privilege in future in Toronto (as summarized above at paras. 3-4). I did not order any remedy for the s. 10(b) Charter violation in Sudbury, other than the implicit reprimand or rebuke set out in the above Reasons (at para. 24).

[71] For all these reasons, the two Charter violations in this case have some mitigating effect on sentence but its significance should not be overstated.

[72] The fundamental issue on this sentencing hearing, in my view, is whether a conditional sentence is appropriate in the individualized balance of aggravating and mitigating circumstances that exist in this case. That determination turns on two of the main requirements set out in s. 742.1: first, whether two years less a day is the appropriate length of sentence; and second, whether a conditional sentence “would be consistent with the fundamental purpose and principles of sentencing.” In light of Collins’ successful reformation, I am satisfied that he is not a danger to “the safety of the community”.

[73] In resolving the above fundamental issue, the existing case law provides considerable assistance. After the Supreme Court declared the three year mandatory minimum sentence for s. 95 offences unconstitutional in R. v. Nur, 2015 SCC 15, a small number of cases emerged where conditional sentences have been imposed for this firearms possessory offence. See, e.g. R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Moses, 2022 ONSC 332; R. v. Beharry, 2022 ONSC 4370; R. v. Hassan, 2017 ONSC 4570; and R. v. Sellars, 2018 BCCA 195. Some of these cases are obviously distinguishable from the present case. For example, in Desmond-Robinson the accused was “a young first offender with considerable potential”, he was working and supporting his family, and his firearm possession was not connected with “any criminal activity involving drug trafficking.” Similarly, in Moses the accused was “treated as a first offender”, he was “engaged in full time employment, was a dedicated father, was providing the sole financial support for his family”, and there was no evidence he “was engaged in other criminal activity” such as “participation in the drug trade.” Finally, in Beharry the accused was a first offender who grew up in disadvantaged circumstances that could be linked to racism and who possessed a firearm in the backseat of his car as a result of “rampant gun violence” in his neighbourhood and not because of any connection to some criminal activity like drug trafficking. Some of the circumstances in these three cases apply to Collins but he is certainly not a first offender and his possession of a loaded firearm was undoubtedly connected to his drug trafficking activities. On the other hand, Hassan and Sellars are two s. 95 cases where conditional sentences were imposed and they bear some considerable resemblance to Collins’ case. I will refer to Hassan and Sellars in greater detail below.

[74] Turning to the drug trafficking cases, that offence carries a maximum life sentence and it was never eligible for a conditional sentence except for a brief period, after the Court of Appeal declared s. 742.1 (c) unconstitutional in Sharma and before the Supreme Court reversed that decision. As a result, s. 742.1 (c) was briefly reinstated. See R. v. Sharma, 2020 ONCA 478, revd. 2022 SCC 39. On November 17, 2022, a few short weeks after the Sharma reversal in the Supreme Court, Bill C-5, An Act to Amend the Criminal Code and the Controlled Drugs and Substance Act came into force. Section 14 of that Act amended s. 742.1 (c) by removing the conditional sentence prohibition for offences that carry a maximum sentence of life imprisonment. As a result, Collins’ two convictions for drug trafficking offences in the present case became eligible for a conditional sentence, depending on whether the basic requirements in s. 742.1 are met.

[75] As a result of the above recent history, there are now a small number of cases that have addressed the appropriateness of conditional sentences for drug trafficking. See, e.g. R. v. Whittaker, 2021 ONSC 5278; R v. Ramos, 2023 ONSC 1094; R. v. Williams, 2023 ONCJ 259. Once again, some of these cases are obviously distinguishable from the present case. In Ramos, the accused was a young first offender who pleaded guilty to s. 95 possession of a loaded firearm and possession for the purpose of trafficking of 7.7 grams of fentanyl and ounce amounts of both powder and crack cocaine. However, she was not the principal in these offences and she had minimal control over the gun and the drugs. In addition, she was “significantly addicted” and was involved in both the drug trade and the sex trade as a result of abuse from her pimp. Perhaps most significantly, she had been on bail for almost five years and had made significant rehabilitative progress by the time of sentencing. In particular, she had been able to end “her dependency on hard drugs”. None of these “exceptional” mitigating circumstances apply to Collins. In Williams, the accused was also a young first offender who pleaded guilty. However, unlike Ramos, he was a commercial trafficker who was in possession of 14.2 grams of fentanyl (including cutting agent). The “exceptional” mitigating circumstances in Williams, in addition to being a young first offender who pleaded guilty, were that he grew up in a disadvantaged social context that included poverty, racism, witnessing a shooting, and having two friends who were shot and paralysed. He became involved in drug trafficking as a “one time event”, due to the financial pressure of his girlfriend’s pregnancy. Perhaps most importantly, he had taken “significant steps” to rehabilitate himself while on bail. In this regard, he was employed full time, he had upgraded his skills to become qualified as a welder, and he had completed 525 hours of volunteer work with a mentorship program for “racialized youth” and had received “very positive accolades” for this community work. These latter two circumstances, relating to social context and rehabilitative progress, both apply to Collins in the present case, although Collins is clearly not a first offender like the accused in Williams or in Ramos. The one case that is most helpful, amongst these drug trafficking cases where conditional sentences were imposed, is Whittaker. I will refer to it in greater detail below.

[76] As stated above, Hassan, Sellars and Whittaker are the three conditional sentencing cases that most closely resemble the present case. I will briefly summarize the facts and the reasoning in those cases.

[77] In Whittaker, the accused pleaded guilty to one count of possession of 74 grams of cocaine for the purpose of trafficking. The circumstances of the offence indicated that the accused purchased this relatively significant amount of cocaine directly from the importer, and at the time of the importation. In other words, Whittaker was a mid-level trafficker who was directly connected to the highest levels of the drug trade hierarchy, unlike Collins who was a street level trafficker. Whittaker was somewhat older than Collins and he had a criminal record. At the time of sentencing in 2021, Whittaker was 39 years old. The offence took place in 2017. Whittaker’s prior record was for convictions in 2011 and in 2006. The 2011 conviction was for obstruct police and fail to comply with terms of bail. He was sentenced to 30 days in jail after 15 days of pre-trial custody. The 2006 convictions were much more serious, namely, for possession of a loaded restricted/prohibited firearm and possession of a Schedule 1 drug for the purpose of trafficking. Whittaker was sentenced to two years in prison after six months of pre-trial custody. In other words, he was a mature recidivist drug trafficker, as was Collins. One final aggravating factor was that Whittaker was not an addict. He was a commercial trafficker, like Collins.

[78] Aside from Whittaker’s guilty plea, which was a significant mitigating factor in the context of this Court’s post-pandemic backlog, Corrick J. stressed two additional mitigating factors that apply equally to Collins. First, Whittaker had a disadvantaged and traumatic upbringing, which reduced his moral blameworthiness to some degree. He grew up in a “high conflict” family in subsidized housing in the Jane and Finch neighbourhood. His own father led “a criminal lifestyle” and “it was impossible to avoid drug activity” in his own family and in his community. In addition, there was a “neighbourhood war” that led to the murder of Whittaker’s uncle. Whittaker was “profoundly affected” by these events and he became “an angry man” who had difficulty expressing feelings.

[79] The other important mitigating factor was the efforts that Whittaker had made to “transform his life” during the 4 ½ years that he was on bail. Corrick J. described these significant developments as follows (supra at paras. 21-27):

Since his arrest on March 27, 2017, Mr. Whittaker has worked hard to turn his life in an entirely different direction. He established and is running a very successful music business. He has reconnected with his faith and developed a close relationship with his pastor that involves counselling, guidance and accountability. He is actively engaged in therapy with a registered psychotherapist to change behaviours that he believes have prevented him from being as successful as he could be, both personally and professionally, and to help him become a positive role model for his children.

The success of Mr. Whittaker’s music business began in 2018. He discovers, develops and promotes young artists. He has lucrative streaming distribution deals and has recently begun designing and producing merchandise to support his music label. Two men who do business with Mr. Whittaker praised his accomplishments and his work ethic when they were interviewed by Ms. Richards [who prepared the EPSR]. One of them also recognized Mr. Whittaker’s commitment to assisting disadvantaged Black youth interested in the music industry.

Mr. Whittaker regrets that he had no mentor when he was growing up. He is particularly proud of the fact that he has been able to mentor young Black men from disadvantaged neighbourhoods and provide them with studio time that they would not have otherwise been able to access. One of the young artists from the Jane/Finch community Mr. Whittaker has mentored and developed has recently signed a recording deal with Sony Music Canada. Unfortunately, another young artist Mr. Whittaker was mentoring was killed.

His financial success allows him to provide for his children and to support his father, who lives in poverty in Trinidad.

The fact that Mr. Whittaker is seeing a psychotherapist is seen by his mother, siblings and former intimate partner as a necessary and major step forward for him. For years, Mr. Whittaker resisted the suggestion that he seek therapy to address his pain and anger. He has attended biweekly sessions with a psychotherapist since January 2021 and intends to continue them.

As Ms. Richards noted in her report, Mr. Whittaker believes that his life may have had a different trajectory if he had not grown up without a father in an impoverished neighbourhood, surrounded by people engaged in the drug trade. Despite this, Mr. Whittaker accepts full responsibility for the poor choices he made to be involved in the drug trade.

In a statement to the court, Mr. Whittaker indicated his remorse and his sincere desire to live differently, to be a role model for his children and to be a productive member of society who gives back to his community by providing opportunities to young people growing up in the same circumstances that he did.

[80] Corrick J. explained the basis for her conclusion that a maximum conditional sentence was appropriate, in the following terms (supra at paras. 56-57):

Mr. Whittaker has real rehabilitative potential. I am not basing this on his statement to the court or his promises. I base it on the evidence of what he has accomplished in the past 4½ years. He also has the ability to repair some of the harm he has done to the community by continuing to mentor Black youth if he is permitted to serve his sentence in the community. The imposition of a conditional sentence strikes a balance of punitive measures to address denunciation and deterrence and restorative measures to achieve rehabilitation and reparations. It is also consistent with the principle of restraint set out in ss. 718.2 (d) and (e) of the Criminal Code.

In my view, to incarcerate Mr. Whittaker now would jeopardize the progress he has made while on bail and would serve no genuine societal purpose. A conditional sentence of maximum duration recognizes the seriousness of this offence and its aggravating features while at the same time promoting the real prospect of his rehabilitation.

[81] The Sellars case is a decision of the B.C. Court of Appeal. The accused was convicted after trial of possession of a loaded prohibited/restricted handgun. As I read the Court’s decision, the normal range of sentence for s. 95 offences in B.C. is similar to Ontario, namely, it “begins with approximately three years’ imprisonment”, as the Court put it.

[82] Sellars was 26 years old at the time of the offence in 2015. He had a prior criminal record for possession of a weapon dangerous in 2012, which resulted in a fine. He was a passenger in a truck and was in possession of a loaded handgun at a time of significant gang violence in the Williams Lake area. Sellars’ cousin and his best friend had both been the victims of “targeted killings” in 2013 and 2014. Sellars “unsuccessfully raised the defence of self-defence” at trial, explaining that he obtained the handgun “from the street” in order to protect himself and his family from the gang violence in Williams Lake.

[83] The B.C. Court of Appeal concluded in Sellars that there were “exceptional circumstances” that justified a departure from the normal range for s. 95 offences – namely, a three year jail sentence – and that justified a maximum conditional sentence. The Court relied on the same two broad mitigating circumstances that Corrick J. relied on in Whittaker. First, the Court concluded that Sellars’ “moral culpability was diminished by his background circumstances”. He is an Aboriginal person who grew up in a social context that the trial judge and the Court of Appeal described as follows (supra at para. 3):

(i) Mr. Sellars had “a multigenerational family history of substance abuse, familial instability, fragmentation and breakdown, and premature death”; (ii) which “legacy continues to impact the lives of successive generations within Mr. Sellars’ family including Mr. Sellars himself”; and (iii) whose “inability to deal with unresolved grief and loss played a prominent role in two suicide attempts and continued unabated until he developed alcoholic pancreatitis at age 19 prompting his treatment at the Round Lake Treatment Center”.

In this regard, Sellars was an alcoholic by age 19 and he twice attempted suicide after the deaths of his cousin and his best friend in “targeted killings”.

[84] The second broad mitigating circumstance was that Sellars had “undertaken exceptional rehabilitative steps”, which were described as follows (supra at para. 12):

In July 2014, he became determined to disassociate from his previous gang-related peers. He moved with his girlfriend to her home community in Alberta where he completed a number of industry-training certificates and began working in the oil fields. When he was laid off, the couple returned to the Williams Lake area, and in the spring-summer of 2015 he secured employment at the Mount Polley Mine, living part-time with his brother in Williams Lake while he was working. On September 4, 2015, he was arrested for these offences and released on September 9, 2015, after which he and his spouse relocated to Ashcroft. Eventually they settled in Kamloops. He continued working at the mine on a seven-days-on/seven-days-off rotation, and is still there to this date. In 2016, the couple’s son was born.

[85] In light of the above two “exceptional” circumstances, the trial judge and the Court of Appeal reasoned that a proportionate sentence was one that was “below the general range” imposed in firearms cases. The core of this analysis was as follows (supra at paras. 35 and 37):

The judge found that Mr. Sellars’ moral blameworthiness was mitigated by his background circumstances that included having been pressured and socialized into the IO gang as a young person by older males from his own community, and introduced into substance abuse as early as age 10, which led to chronic substance abuse that almost killed him. He also found that in spite of these circumstances, Mr. Sellars had undertaken exceptional rehabilitative initiatives that included disassociating himself from the IO, moving away from his home community, taking concrete steps to address his chronic substance abuse, which led to him stopping any consumption or use of alcohol and illicit drugs, and maintaining full-time employment to support his family with whom he has settled down in a new community. These findings are supported by the evidence and in my view must be given deference.

In particular, by the judge’s own account, the community leaders and police of the Williams Lake area and in Mr. Sellars’ home community were at their wits end in trying to address the violence of competing gang activity. In the face of this turbulence, Mr. Sellars demonstrated the strength of character, not only in coming to grips with his substance abuse, but to disassociate himself from the people involved in the gangster lifestyle because it required him to effectively leave his home community. It seems to me that this dynamic makes his personal circumstances more commendable and favourably distinguishes his case from the circumstances of the offenders in Nur, Holt, Kachuol, and other appellate authorities on firearms offences. Additionally, Mr. Sellars no longer poses a risk to the public; specific deterrence was not an issue in his sentencing. As a result, in my view, a sanction below the general range established in Holt is justified in Mr. Sellars’ case.

[86] The last of the three conditional sentencing cases that were most helpful is Hassan. In that case, the accused brought an unsuccessful Charter application at trial. He was then convicted, on agreed facts, of a s. 95 offence. He had been a passenger in a motor vehicle and was carrying a prohibited handgun in the leg of his pants, with bullets in his pocket. He was 21 years old at the time of the offence in 2014 and he had a “minimal criminal record”.

[87] The two broad mitigating circumstances in Whittaker and Sellars, namely, a disadvantaged social context and a complete reformation while on bail, were similarly present in Hassan. Backhouse J., the experienced trial judge in Hassan, described the first circumstance as follows (supra at paras. 3 and 4):

Mr. Hassan was born in Toronto in 1993. He is the fourth of a sibline of 6 children. He comes from an unstable family background which commenced with the family having to abandon their country of Somalia. Shortly after the father arrived in Canada to join the family, he left for another woman, leaving his wife to parent five children on her own. In 1997 the family was living in a very difficult and dangerous neighbourhood. They had to move into a shelter for a few months until Toronto Housing was able to relocate them to their current address in a neighbourhood that has also had a high volume of criminal activity in the last decade.

Mr. Hassan grew up being teased because he had deformed teeth which his mother could not afford to have fixed. He made no effort at school and began to socialize with peers that were equally disinterested. He dropped out in grade 10. He became involved in consuming and selling drugs and was a member of the Project Originals street gang. He became involved in the rap scene and recorded music videos and lyrics which promoted the “gangsta” lifestyle that he posted on YouTube.

Almost all of the above circumstances apply equally to Collins in the present case.

[88] A great deal of evidence was called at the sentencing hearing in Hassan about the second mitigating circumstance, namely, “exceptional changes” in the accused during his three years on bail. These changes arose when Hassan began volunteering and then obtained a job at the Scadding Court Community Centre. Backhouse J. relied on this reformation as the most important mitigating factor. She summarized some of the evidence relating to this issue as follows (supra at paras. 12, 16, 17, and 21):

Mr. Cressy has observed consistent and deep-rooted efforts by Mr. Hassan to turn his life around. Mr. Hassan started by volunteering. By volunteering Mr. Hassan got connected to a youth employment program. Through the youth employment program, he got connected to a job whereby he works 20 hours a week at Scadding. Mr. Hassan is the coordinator of the Aquaponics program which Mr. Cressy helped set up through funding from the city. In addition to that, Mr. Hassan volunteers at Scadding.

Mr. Cressy testified that Mr. Hassan grew up in an environment where it was easier to succumb to crime and violence than to go to university. He made a serious mistake in deciding to possess a firearm. Although he was 21 years of age at the time, he was an immature 21 year old who did not complete formal education. He made the hard decision to leave the life he was leading, get a job, start volunteering, go to Youth Employment Services, start an academic literacy program and turn his life around.

Mr. Cressy observed that Mr. Hassan shares his story with others to whom it may make a difference. In the community centre, youths come in who look up to Mr. Hassan and he is an advocate for rehabilitation. He shares his story with individuals associated with gangs or youths who are susceptible to that life. There are plans for Mr. Hassan to help run initiatives for crime prevention and youth development in the Alexandra Park Community Centre, a notoriously dangerous community. If he goes to jail, the message to other youth is “don’t bother turning your life around.”

In all the work Mr. Cressy has done with troubled youth … he has never seen anybody with Mr. Hassan’s level of courage and commitment to changing his life. He has not seen anybody in his 33 years show the same conviction. [Emphasis added].

The above changes in Hassan during his three years on bail are similar to the changes in Collins during his three years on bail, although the details are obviously different.

[89] Backhouse J.’s conclusions concerning the above mitigating factors and the appropriate sentence were as follows (at paras. 52, 63-64, and 75):

Mr. Hassan has taken exemplary steps to rehabilitate himself since his arrest. He is an advocate and a role model to demonstrate to other vulnerable young people that there is a way to function in the community and within our society that does not involve crime and gangs.

What makes this case singular is not only Mr. Hassan’s rehabilitation and the number of very experienced people who have concluded and are prepared to say that he is not a danger to the public and is very unlikely to reoffend. What distinguishes this case is that Mr. Hassan has been able to learn from his past experiences and act as a positive role model for at risk youth. He has gone from someone who associates and identifies with a gang and gang culture to someone who is a willing and effective communicator of the message that there is another path than being a gang member and a life of crime. Coming from the background he comes from, he is able to act as a spokesperson and mentor to marginal people who want to change. The people working with at risk youth recognize that there is a greater chance of the young people they are trying to influence getting the message from Mr. Hassan than from themselves.

In my experience as a judge of this Court I have never seen such a dramatic and sustained effort not only of personal rehabilitation but also of a commitment to helping youths who grew up in the kind of community Mr. Hassan grew up in to escape the strong pull of a life of gangs and crime.

I find that Mr. Hassan, if he is allowed to serve his sentence in the community, has the ability and the proven resolve to act as a positive role model and to influence youths at risk to get out of a life of crime. [Emphasis added].

[90] In my view, the principle that emerges from cases like Whittaker, Sellars, and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases.

[91] I accept that the present case is more serious in some ways than Whittaker, Sellars, or Hassan, for a number of reasons. Collins has a more significant criminal record than the accused in those three cases (although Whittaker’s prior record was relatively serious). In addition, Collins has been convicted and is to be sentenced for a s. 95 firearms offence as well as for two separate counts of cocaine trafficking, which would normally attract consecutive sentences. The Whittaker, Sellars, and Hassan cases all involved one or the other but not both cocaine trafficking and firearms possession. Finally, Collins’ count one drug trafficking offence had the particularly aggravated characteristic of exploiting vulnerable residents of an Aboriginal community (although Whittaker’s drug trafficking was also relatively serious, albeit for different reasons, as noted above).

[92] Accepting that the present case is more serious in some ways than Whittaker, Sellars, and Hassan, for the reasons summarized above, it also has a larger and more diverse constellation of mitigating circumstances. I have set out the seven mitigating circumstances above in some detail (at para. 68). In my view, they are significantly stronger in their totality than the mitigating circumstances in Whittaker, Sellars, and Hassan. For example, there was no guilty plea in either Sellars or Hassan and this is a significant factor in the present case (as it was in Whittaker). In addition, the mitigating effect of the two Charter violations in Collins’ case is a unique factor that was not present in Whittaker, Sellars, or Hassan.

[93] In my view, there are similarities between the present case and Whittaker, Sellars, and Hassan. There are also some differences. This simply reinforces the settled principle of law, namely, that sentencing is an “inherently individualized process”. See: R. v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 at para. 92 (S.C.C.).

[94] Another settled principle of sentencing law is that a conditional sentence can achieve the needs of denunciation and deterrence, depending on its length and terms, and depending on how “pressing” the needs for denunciation and deterrence in the particular case. As Iacobucci J. put it, speaking for the Court in R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368 at paras. 33-35 (S.C.C.).

The amount of denunciation and deterrence provided by a conditional sentence varies depending on the nature of the conditions imposed and the duration of the sentence. Since the imposition of any sentence is determined on an individual basis, each conditional sentence needs to be crafted with attention to the particular circumstances of the offence, offender, and the community in which the offence took place (see M. (C.A.), supra, per Lamer C.J., at para. 92). Consequently, conditions will vary according to these factors with it being generally true that “the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be” (Proulx, at para. 106).

Nevertheless, Lamer C.J. pointed out that “there may be certain circumstances in which the need for denunciation [or deterrence] is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct” (Proulx, at para. 106-7).

Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge’s assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society’s condemnation.

Also see R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 at paras. 28-39 and 99-107 (S.C.C.).

[95] In my view, there is a “pressing” need for denunciation and deterrence of both the gun crimes and the trafficking of hard addictive drugs in this case. That is because gun crime has reached crisis levels in Toronto and because trafficking in hard addictive drugs is presently of epidemic proportions in Canada. The consequences of both these crimes are tragic and grave. That is why the normal sentences that they attract are lengthy terms in jail, especially in the case of recidivists. However, there are unusual circumstances in this case that have persuaded me, like Backhouse J. in Hassan, that the more effective way to address these “pressing” needs for denunciation and deterrence is to impose a maximum conditional sentence with strict terms that will require Collins to continue the crime prevention work that he is presently doing in his community. If Collins can help to reform and change any number of disadvantaged youths who would otherwise join gangs, acquire illegal handguns, and traffic in hard addictive drugs, then he will be directly participating in the denunciation and deterrence of these activities which is so desperately needed in this city. As Lamer C.J.C. put it in R. v. Proulx, supra at para. 107, speaking on behalf of the unanimous full Court:

Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed. [Emphasis added].

[96] I want to stress that it is the totality of the seven mitigating circumstances, set out above at para. 68, that has persuaded me to impose the unusual sanction of a conditional sentence. However, the one most significant and essential mitigating circumstance is Collins’ track record of crime prevention community service (see paras. 52, 53, and 57 above). It is Collins’ ongoing willingness to engage in this valuable and effective form of community service that can have the deterrent effect that is essential in this kind of case, as Lamer C.J.C. pointed out in Proulx in the passage from his reasons quoted above.

[97] When I heard sentencing submissions on September 5, 2023, I advised counsel that I would hear further submissions as to the appropriate terms of any conditional sentence after I first decided whether, in principle, such a sentence could be appropriate in this case. In my view, the broad requirements of such a sentence in this case include a lengthy period of house arrest with very few exemptions, in order to make the terms as punitive as possible. The three main exemptions should require Collins: first, to continue his livelihood as a musician, in order to lawfully support his family and to further develop healthy self-esteem; second, to engage in a maximum amount of crime prevention community service by mentoring and advising young disadvantaged members of his community through programs like “Lead to Change”; and third, to continue receiving the helpful counseling that professionals like Carole Eastman have provided. I will hear submissions from counsel on October 13, 2023 as to the specific detailed terms of the conditional sentence, consistent with the above broad requirements.

[98] One final important aspect of the proposed conditional sentence is that I intend to remain engaged with its supervision by receiving intermittent reports in writing, from both Collins and the conditional sentence supervisor. I want to be directly involved in ensuring that the terms of the sentence are being carried out.

G. CONCLUSION

[99] For all the above reasons, Collins is sentenced as follows:

(i) a conditional sentence of two years less a day on count one (possession of cocaine for the purpose of trafficking);

(ii) a concurrent conditional sentence of two years less a day on count five (possession of a loaded prohibited firearm);

(iii) a concurrent conditional sentence of two years less a day on count nine (possession of cocaine for the purpose of trafficking);

(iv) a concurrent conditional sentence of one year on count eight (breach of a s. 109 prohibition order);

(v) a concurrent conditional sentence of six months on count ten (possession of proceeds of crime).

[100] The specific detailed terms of the conditional sentence, consistent with the broad requirements set out above, will be settled once I have heard counsel’s submissions on that point. The three ancillary orders requested by the Crown – DNA, s. 109, and forfeiture – are all granted.

[101] I would like to thank all counsel for their exceptional work throughout these lengthy proceedings.

M.A. Code J.

Released: October 13, 2023

COURT FILE NO.: CR-21-10000470-0000

DATE: 20231013

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

CHRISTIAN COLLINS

REASONS FOR sentence

M.A. Code J.

Released: October 13, 2023