His Majesty the King v. Shaquille Nathaniel Lovell
COURT FILE NO.: CR-21-15530
DATE: 20231013
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
SHAQUILLE NATHANIEL LOVELL
Defendant
COUNSEL:
Nicholas Hegedus for the Crown
Ayderus Alawi for Mr. Lovell
HEARD: August 3, 2023
JUDGMENT ON SENTENCE
C. BOSWELL J. (Orally)
[1] On June 6, 2022 Mr. Lovell entered a guilty plea to one count of possessing a loaded, prohibited firearm. Sentencing submissions were not made until August 3, 2023 for reasons I will outline momentarily.
[2] The Crown seeks a sentence of 30 months imprisonment, less a credit for pre-sentence custody served by Mr. Lovell. That credit will reduce the net sentence to be served to something less than 14 months. In the circumstances, the Crown also asks for an 18-month period of probation, together with an order requiring Mr. Lovell to provide a sample of his DNA and a ten-year weapons prohibition pursuant to s. 109 of the Criminal Code.
[3] Mr. Lovell’s counsel urges the court to impose an 18-month period of incarceration, less a credit for pre-sentence custody, and further reductions on account of (1) the particularly harsh conditions Mr. Lovell experienced in remand during the COVID-19 pandemic; and (2) the stringent conditions of his release conditions for a period of time when he was released on bail.
[4] The following reasons explain the sentence imposed today.
The Delay Explained
[5] I begin with an explanation for the delay between Mr. Lovell’s plea on June 6, 2022 and sentencing submissions on August 3, 2023.
[6] At the time of Mr. Lovell’s plea, his counsel advised the court that he was seeking an enhanced Pre-Sentence Report (“EPSR”). An EPSR is generally prepared by a social worker. Its purpose is to provide the court with a detailed picture of an offender’s background. In this instance, it was prepared with a view to providing biographical background for Mr. Lovell and, more particularly, to provide the court with information about the impact that poverty and racial inequality have had on his life.
[7] Experience has shown that it can take considerable time for EPSRs to be prepared. The sentencing was accordingly adjourned to October 5, 2022 to be spoken to as to the status of the EPSR.
[8] On October 5, 2022, defence counsel reported that Mr. Lovell was still on a waiting list for an EPSR. Sentencing was adjourned to December 2, 2022 to be spoken to.
[9] On December 2, 2022, defence counsel advised that a caseworker had been assigned to complete the EPSR, but it was only at a very preliminary stage. The sentencing was adjourned to January 19, 2023 to be spoken to, in anticipation that a date for sentencing submissions would be set on the next occasion.
[10] The EPSR was apparently nearing completion by January 19, 2023 and a date was set for sentencing submissions to be made on March 29, 2023.
[11] On March 29, 2023, however, defence counsel was ill and could not proceed. Moreover, Mr. Lovell was not before the court because apparently no judge’s order had been made for him to attend in person. Sentencing submissions were adjourned to May 8, 2023.
[12] On May 8, 2023, sentencing submissions did not proceed. Mr. Lovell had recently been arrested on two counts of breaching his release order. The court was advised that he was considering whether he wished to seek new counsel and, at his request, the sentencing was adjourned to August 3, 2023. There were two caveats to the adjournment. First, it was made peremptory on Mr. Lovell. Second, an interim date – June 5, 2023 – was set to confirm that there would be no further issues with the sentencing submissions proceeding.
[13] Sentencing submissions proceeded, as scheduled, on August 3, 2023 and Mr. Lovell was put over to today’s date for judgment on sentence.
The Circumstances of the Offence
[14] The circumstances of the offence are a little unusual. On July 11, 2019, Mr. Lovell was residing at Unit 3, 23 Ritson Road South, in Oshawa. A search warrant was executed at that residence on that date. I know very little about the warrant but I understand that Mr. Lovell was not the target of the investigation that gave rise to it.
[15] At any rate, during the execution of the warrant, Mr. Lovell fled the residence through a window. He was pursued by the police. He threw a handgun under a vehicle as he was being pursued. He was arrested not far from the vehicle. The gun was recovered by the police. It was identified as a Taurus 9 mm handgun with seven bullets in the magazine. Mr. Lovell’s DNA was determined to be on the gun.
[16] There is no dispute that the gun was a prohibited weapon. Mr. Lovell was not authorized to possess it and, indeed, had no business possessing it. Why he possessed it has never been explained.
The Impact of the Offence
[17] There is no complainant in this case and, accordingly, no victim impact statement for the court to consider. The absence of a complainant does not mean, however, that the possession of a loaded, prohibited firearm is a victimless crime. Loaded guns, quite simply, make the community worse.
[18] Gun crime has been described by the Supreme Court as a “matter of grave and growing public concern”. See R. v. Nur, 2015 SCC 15 at para. 131. It is truly shocking how many young men come through this court charged with the possession of loaded, prohibited firearms.
[19] Guns are designed to maim and kill. They represent an immediate and serious threat to public safety and security. When a loaded handgun is carried in the community, “death and serious injury are literally at hand, only an impulse and trigger-pull away.” See R. v. Chin, 2009 ABCA 226 at para. 10.
The Circumstances of the Offender
[20] I will take some time now to examine Mr. Lovell’s lived experience. Most of the information in this portion of my reasons was obtained from the EPSR.
[21] Mr. Lovell was born in Barbados in November 1997. His mother was unable to care for him due to issues relating to her health and to poverty. When he was about one, he came to live with his mother’s cousin, Balma Lovell, in Montreal. For all intents and purposes, Balma Lovell raised him and stood in the place of his mother. He has had virtually no relationship with his biological parents or with a number of siblings he has in Barbados. I will refer to Balma Lovell as his mother.
[22] Mr. Lovell grew up in Montreal. He describes his mother as being strict in her parenting style. She would threaten him with deportation to Barbados as a disciplinary strategy. He says it kept him quiet and obedient. He was not given the same level of freedom that his peers had. He was expected to come straight home after school and was not permitted to socialize. In the result, he had relatively few friends.
[23] Mr. Lovell had a warmer relationship with his mother’s youngest daughter, Maria, who is now 43 years old. She appears to have also filled a parental role and at one time unsuccessfully sought to obtain legal custody of Mr. Lovell in an attempt to raise him in a more positive environment. I will refer to her as Mr. Lovell’s sister.
[24] Mr. Lovell and his sister both report that they were the only Black family in their neighbourhood in west Montreal. They experienced racism in the form of racial slurs being hurled at them. Mr. Lovell could not play outside for fear of being harassed by white neighbours who did not allow their children to play with him. Mr. Lovell said he “kept his distance” and had “maybe two friends.”
[25] Mr. Lovell attended Thorndale Elementary School from grades 1-6. He described himself as the “class clown”. The majority of the students were white. He formed the view that as a Black student he had to work harder than his white peers and was not allowed to make mistakes. He had some disciplinary issues at school and found that his mother generally sided with the teachers.
[26] About ten years ago, Mr. Lovell moved to Toronto with his mother. His sister had moved there a little ahead of them. They initially moved to the Keele Street and Wilson Avenue area but eventually his mother and sister purchased a home together in Ajax. Mr. Lovell describes his family’s financial situation as “average”. They had no financial hardships.
[27] Mr. Lovell began grade 7 in a middle school in the Keele/Wilson St. area. He felt comfortable there because a majority of the students were Black. He had to leave partway through the school year, however, when they moved to Ajax.
[28] Mr. Lovell eventually attended J. Clark Richardson Collegiate in Ajax. He graduated in 2015. He reports that he enjoyed high school. He says he was treated well by most of his teachers. He particularly enjoyed athletics and aspired to play in the NBA.
[29] Mr. Lovell continued, however, to chafe under his mother’s strict parenting. When he was 16 or 17 years old, he separated from his mother and sister during the Caribbean Carnival to go off with his friends. His mother called the police, which significantly affected him. His sister reports that she noticed a change in his demeaner after this incident. He kept more to himself, didn’t talk to anyone and started to do what he wanted, according to his sister.
[30] Mr. Lovell reports that he made friends who “look like him” in Toronto. His mother did not care much for his friends. She thought they were a bad influence on him.
[31] By the time he was 18, Mr. Lovell was expected to maintain employment and contribute to the household expenses, while at the same time being afforded limited freedoms from his mother.
[32] After high school, Mr. Lovell attended Sheridan College in Mississauga for Business Administration. He commuted from his mother’s home in Ajax. He left the program after the first year. Since then, he has held a variety of jobs, including warehousing and building trusses. His most recent employment appears to have been at Newco Diamond Truss Company where he worked for about two years. He left that employment due to racism he experienced. He said he was one of only two Black employees and was often spoken to with disrespect in comparison to his white co-workers.
[33] Mr. Lovell hopes to eventually join the Labourers International Union of America and work in construction.
[34] In an effort to experience a measure of freedom, Mr. Lovell moved out of his mother’s home when he was 21. He took a room in a home in Oshawa. He had only been there for a few days when he was arrested for the index offence. Mr. Lovell has no criminal record.
[35] Mr. Lovell was in custody for a relatively brief period after his arrest on July 11, 2019. He was released on bail on July 22, 2019. He was initially subject to a house arrest provision. That provision was, however, lifted in March 2021 and replaced with a curfew.
[36] Mr. Lovell was taken back into custody on December 8, 2022 as a result of an allegation of a breach of his release terms. He has remained in custody since that time.
[37] In total, he has served 322 days in pre-sentence custody to today’s date.
[38] Mr. Lovell filed an affidavit outlining the conditions he has experienced at the Central East Correctional Centre while in remand. The court is well-familiar with the chronic staff shortages that, for years now, have resulted in routine lockdowns of inmates. Those lockdown periods were exacerbated during the Covid-19 pandemic.
[39] During lockdowns, inmates may be confined to their cells for 24 hours or longer. They frequently lose access to showers, the yard and the telephone. At times Mr. Lovell has gone three days without a shower.
[40] Lockdowns have led to feelings of anxiety, stress and frustration on Mr. Lovell’s part and, undoubtedly, on the part of other inmates. Tension increases on the range and that manifests in aggressive and, at times, violent behaviour.
[41] Mr. Lovell reports that for the majority of his time at CECC, he has had to share a 15’ x 7’ cell with two others. One person is forced to sleep on the floor. Since early April 2023, that person has been Mr. Lovell.
[42] According to the records of CECC, Mr. Lovell has been subject to full-day lockdowns on 67 days and partial lockdowns on another 25 occasions. Mr. Lovell believes these records under-report the number of lockdowns he has experienced. Even if the records are accurate, however, the lockdowns have been extensive.
The Legal Parameters
[43] Pursuant to s. 95(2) of the Criminal Code a person convicted of unauthorized possession of a loaded, prohibited weapon is liable, on conviction, to a maximum sentence of imprisonment for ten years.
The Governing Principles
[44] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
[45] The importance of these individual objectives, and how they interact, varies from case to case. There is little debate that the objectives of denunciation and deterrence are the most prominent given the nature of the offence here.
[46] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.
[47] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37, censure requires that any sentence imposed reflect the gravity of the offence, while restraint requires that a sentence not exceed what is appropriate in light of the moral blameworthiness of the offender. “In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”
[48] It is necessary that the court carefully consider the particular circumstances of the offence and of the offender and take account of any aggravating and mitigating circumstances. The court must also adhere to the requirement that like cases must be treated alike. See s. 718(2)(b) of the Criminal Code.
The Parties’ Positions
[49] I set out the parties’ positions generally at the outset of these reasons. I will briefly flesh them out a little more here.
[50] In Nur, former Chief Justice McLachlin observed that s. 95(1) of the Criminal Code “casts its net over a wide range of potential conduct” from what may best be described as something akin to a regulatory breach at one end of the spectrum to truly criminal conduct at the other end of the spectrum.
[51] The Crown’s position is that Mr. Lovell’s possession of the loaded firearm in issue here is best characterized as being at the truly criminal end of the spectrum. He had no legitimate or authorized purpose to possess the weapon. Sentences in the range of three years are generally appropriate, the Crown says, for cases of this nature.
[52] The Crown provided a helpful chart of caselaw supporting its position on sentence, which I have carefully considered. I agree that the caselaw supports a sentence in the three year range in circumstances similar to those present here, which include a first time youthful offender, who has entered a guilty plea to possession of a loaded, prohibited firearm, which was possessed in a public location.
[53] That said, Crown counsel has considered Mr. Lovell’s personal circumstances, including the content of the EPRS, as well as his experience while in pre-sentence custody, and submits that some mitigation of Mr. Lovell’s sentence is warranted for those circumstances. The Crown proposes, in the result, that a 30-month sentence should be imposed, less credit for pre-sentence custody.
[54] Crown and defence counsel agree that Mr. Lovell is entitled to credit against any sentence imposed for the time he has spent in remand at a rate of 1.5 days for each day served in pre-sentence detention, in accordance with the principles enunciated in R. v. Summers, 2014 SCC 26. As I noted, Mr. Lovell has served 322 days of pre-sentence custody to today’s date and is entitled to a credit for that time equal to 483 days.
[55] The net sentence proposed by the Crown is accordingly one of 417 days (900 days less 483 days), which is just slightly under 14 months. The Crown, as I noted, also seeks a probation order for a period of 18 months, to include a term that Mr. Lovell engage in counselling as directed by the probation officer and that he have no contact with the three individuals who were occupying the house where he was living at the time of his arrest.
[56] Defence counsel’s position is that an appropriate starting point is 18 months in custody. He argues that the circumstances of the case here are not at the true crime end of the spectrum of possession cases. This is not a case where Mr. Lovell possessed a gun as a tool of a criminal trade. It is not a case where he was carrying it for his protection or some other purpose. The only reason that he had it outside of the residence where he was living was because he panicked when the police made a dynamic entry into the residence and he instinctively fled out the window. The circumstances here, counsel says, are readily distinguishable from those reflected in the caselaw submitted by the Crown.
[57] Defence counsel submits that the 18-month starting point should be further reduced by virtue of the mitigating impact of the harsh conditions Mr. Lovell has experienced while in remand and of the impact on his liberty caused by the stringent bail conditions he was subject to while on release between July 22, 2019 and December 8, 2022.
[58] Defence counsel did not suggest a bottom line net sentence, but it is apparent that he is at or very near a time served position. He does not oppose the probation order proposed by the Crown. Nor does he oppose the DNA order sought by the Crown or the s. 109 weapons prohibition.
Discussion
[59] There is no doubt that possession of a loaded, prohibited handgun is a serious offence and one that cries out for a sentence that sends a strong message of denunciation and deterrence. Sentencing judges and appellate judges alike have repeatedly commented on the serious concerns that gun-related offences cause in our communities.
[60] The Supreme Court recognised in Nur, at para. 1, that “Gun-related crime poses a grave danger to Canadians.” Justice Harris of this court summarized well the oft-repeated concerns about the proliferation of illegal handguns in the community in R. v. Kawal, 2018 ONSC 7531 at paras. 11-16. Amongst other things, he noted that “handguns are a social evil”; “they make it all too easy to kill or seriously injure another person”; and “they are a plague on our communities”.
[61] Justice Harris also observed, as others have, that obtaining a loaded, prohibited handgun is not a simple matter of dropping by the local hardware store. It requires what he called “deliberation and contemplation” and the sourcing out of an illegal distributor.
[62] In this instance, I know that Mr. Lovell had possession of a loaded, prohibited handgun. I do not know where he got it. I do not know why he had it. He suggested to the author of the EPSR that it was not his, but I do not have any evidence to that effect. The evidence I do have is that he had the gun in his possession when he fled his Oshawa residence. And he threw the gun under a car.
[63] Fortunately, the police recovered the gun. Had they not done so, one can only speculate about the nature of harm that may have flowed from the gun being discovered by someone else.
[64] I agree with defence counsel that the circumstances here are, to some extent at least, distinguishable from those cases where an offender is arrested in the community, while carrying a concealed firearm. And there is no evidence that Mr. Lovell possessed a firearm as a tool in the trade of illegal substances - what jurists often refer to as a toxic combination of guns and drugs. I accept that he panicked and fled the residence with the gun when the police entered. The net result, however, is that he had the gun in the community and compelled the police to chase someone carrying a loaded handgun. That created a situation of grave danger. It is a serious aggravating feature to what is, prima facie, a serious criminal offence.
[65] There are a number of mitigating factors to consider here as well. For instance:
(a) Mr. Lovell is a youthful, first time offender;
(b) Mr. Lovell has a supportive family. Upon release he is expected to return to live with his mother and sister in Ajax. He also has a girlfriend who is very supportive of him, as is her family. I am confident that Mr. Lovell will be able to move on from this intersection with the criminal justice system and live a productive and fulfilling life. Though denunciation and deterrence are the most prominent sentencing objectives in play, rehabilitation remains a very important concern in terms of any sentence imposed on Mr. Lovell;
(c) Mr. Lovell entered a guilty plea. It was an 11th hour plea, mind you, but it was still a plea and is entitled to at least some consideration by way of mitigation;
(d) Mr. Lovell has been subject to particularly harsh conditions during his time in remand at CECC. I set those conditions out earlier and need not recite them again here. Those conditions, in my view, entitle Mr. Lovell to some mitigation of his sentence, though the Court of Appeal has been clear that any such mitigation must not result in the reduction of a sentence below what is fit in all the circumstances. See R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344; and,
(e) Mr. Lovell was also subject to reasonably stringent bail conditions for at least the period between July 22, 2019 and March 2021. Those conditions, in place for roughly 20 months, included house arrest. The house arrest provision was lifted in March 2021 in favour of a curfew. But the house arrest condition was a significant restriction on Mr. Lovell’s liberty. He is entitled to a certain amount of mitigation against his sentence on account of that restriction. See R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555.
[66] I will take a moment now to address the content of the EPSR and reflect on the impact, if any, of Mr. Lovell’s experience with systemic racism in his life.
[67] There is no question that Mr. Lovell has unfortunately experienced racism at both individual and systemic levels. His experiences in his neighbourhood in Montreal, while at school, and in the workforce have all been tainted by anti-Black racism. It will come as no surprise if Mr. Lovell perceives Canadian society, and Canadian institutions, as racist and unfair.
[68] The Court of Appeal for Ontario recently considered, in R. v. Morris, 2021 ONCA 680, how sentencing courts should take evidence of anti-Black racism into account on sentencing. They provided a helpful summary of their conclusions at para. 13 of their decision. These conclusions include, amongst others:
(a) The task of the sentencing judge is, as always, to impose a just sentence tailored to the specific offender and the specific offence;
(b) The gravity of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. The offender’s life experiences with anti-Black racism do not impact on the gravity of the offence; and,
(c) Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing codified in the Criminal Code.
[69] The extent to which an offender’s life experiences, with racism or otherwise, mitigate his degree of responsibility for an offence depends on the connection between those experiences and the commission of the offence. The Court of Appeal recognized in Morris that there must be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.”
[70] That said, to have mitigating effect, the systemic racism experienced by the offender need not be demonstrated to be causally connected to the offence. There need only be some linkage between the offender’s experience and the offences that brought him before the court. See R. v. Ansah, 2021 ONSC 6339 at paras. 41-42.
[71] The EPRS in this instance provides a thorough review of Mr. Lovell’s background. What it does not do, however, is make any sort of connection between that background and the index offence.
[72] Mr. Lovell began life in poverty. But Balma Lovell raised him out of that poverty. She raised him in what he appears to describe as a financially comfortable middle class setting. There is no evidence he grew up in neighbourhoods marked by street crime, gangs or heavy police presence.
[73] The EPSR supports the conclusion that his mother was a strict parent. Mr. Lovell felt very much oppressed by her. That oppression, more than anything, appears to have been the catalyst for his decision to move out of his mother’s residence and into the home in Oshawa where he was arrested.
[74] I do not know anything about the others who lived in that home, nor what Mr. Lovell’s connection was to them. I have no information as to how or why he came to possess a loaded handgun. It is simply impossible for me to make any linkage between any part of Mr. Lovell’s history and the possession of a loaded handgun on the occasion in issue. On the record now before me, it makes no sense that he possessed a weapon. It appears entirely out of character for him.
[75] In the circumstances, Mr. Lovell’s experiences with anti-Black racism, as difficult and unfortunate as they were, do not mitigate his moral blameworthiness for the index offence.
[76] In my view, the Crown’s position that a 30-month sentence is appropriate, after considering the aggravating and mitigating circumstances here, including those discussed in Duncan and Downes, is spot-on. It is the sentence that I impose.
[77] After credit for the equivalent of 483 days of pre-sentence custody, Mr. Lovell’s net sentence is 417 days, or just under 14 months.
[78] On Mr. Lovell’s release from custody, he will be subject to a period of 18 months probation on the following terms:
Keep the peace and be of good behaviour.
Appear before the court when required to do so by the court.
Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.
Abstain from communicating, by any means, directly or indirectly, with Robert Morrison, Jacqueline Fitzgerald and Kathy Segal and to stay at least 100 m away from any place where any of these individuals is known to reside, work, attend an education institution, worship, or otherwise be.
[79] Finally, the following ancillary orders are imposed:
A weapons prohibition for ten years pursuant to s. 109(2) of the Criminal Code of Canada; and,
An order that Mr. Lovell provide a sample of his DNA pursuant to s. 487.051(3)(b) of the Criminal Code of Canada.
[80] At the request of the Crown, all other counts on Indictments 15530/21 and 15530A/21 are withdrawn.
C. Boswell J.
Released: October 13, 2023