INTRODUCTION

[1] On September 28, 2023, a jury found Trayvon Devonte Boreland-Goode guilty of one count of possession of a loaded prohibited firearm without being the holder of a licence or registration, contrary to s. 95(1) of the Criminal Code, R.S.C., 1985, C. c-46. The jury found him not guilty of the remaining eight counts on the indictment, all of which stemmed from allegations made by his former girlfriend.

[2] Mr. Boreland-Goode is separately charged with one count of unauthorized possession of a loaded prohibited firearm while subject to a prohibition order, contrary to s. 117.01 of the Criminal Code. During the sentencing hearing, Mr. Boreland-Goode was arraigned on this count; he agreed to the admission of all evidence heard by the jury and to the Crown filing a copy of the prohibition order. Mr. Boreland-Goode offered no evidence to dispute the evidence that he was subject to a weapons prohibition order between October 30 and November 3, 2021 – i.e., the dates the jury found he was in possession of a loaded prohibited firearm.

[3] Mr. Boreland-Goode is before me for sentencing. The Crown seeks a total sentence of three and a half years of imprisonment, less credit for his pre-sentence custody. Defence counsel seeks a total sentence of two and a half years of imprisonment, less time served. Counsel agree on the applicable ancillary orders and that a probation order is appropriate to assist in Mr. Boreland-Goode’s rehabilitation.

THE FACTS

Circumstances of the Offence

[4] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. This is a two-step process: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106. First, s. 724(2)(a) of the Criminal Code directs that I must “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. This requires that I “identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender”: Aragon, at para. 106; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18. Second, s. 724(2)(b) of the Criminal Code directs that I may “find any other relevant fact that was disclosed by evidence at the trial to be proven”.

[5] Although the indictment originally charged Mr. Boreland-Goode with 21 offences, many of these charges related to the allegations made by his former girlfriend, Ms. Kadiatu Bangura. It was Ms. Bangura’s call to 911 on November 2, 2021 that led to the police obtaining a warrant to search Mr. Boreland-Goode’s Mercedes SUV, where the prohibited firearm was found inside a black duffle bag in the backseat. The firearm was a loaded sawed-off shotgun that was cocked back and ready to be fired with a bullet in the chamber. The duffle bag also contained ammunition and a second sawed-off shotgun that was found to be inoperable.

[6] Mr. Boreland-Goode admits that at the time of this seizure, he was subject to a prohibition order. The prohibition order was made on December 19, 2017, in relation to a conviction for robbery.

Circumstances of the Offender

[7] Mr. Boreland-Goode was born on September 18, 1997. He is currently 26 years old. He is single with no dependents. He enjoys the strong support of his family, particularly his mother, who attended court throughout the proceedings.

[8] A pre-sentence report has been filed. It provides helpful information regarding Mr. Boreland-Goode’s background and present circumstances. These details can be summarized as follows:

i. He is the oldest of four children from his parents’ union and has an additional six step-siblings.

ii. His father had little involvement in his upbringing and left the family home when Mr. Boreland-Goode was about 11 years old.[^1] Mr. Boreland-Goode has recently reconnected and reconciled with his father. Upon release, Mr. Boreland-Goode plans to live with his father in Peel Region.

iii. Mr. Boreland-Goode grew up in the Danzig community in Scarborough, where he was exposed to violence and criminality from a young age. His mother believes that this exposure has contributed to her son’s poor decision-making.

iv. Mr. Boreland-Goode was the subject of police carding when he was only nine years old, an experience he described to the author of the pre-sentence report as “very traumatizing”. The psychological scars from this incident continue to this day.

v. He grew up in a religious home.

vi. Mr. Boreland-Goode had difficulty in school. He dropped out of school when he was 18 years old due to behavioural challenges, not because of challenges with the academic demands of the school curriculum.

vii. Mr. Boreland-Goode has held jobs since he was 12 years old, when he delivered newspapers. Because of his good work ethic, he excels in employment. Prior to his arrest on the charges before this court, he was steadily employed. He also has a job waiting for him upon his release.

viii. Mr. Boreland-Goode began using marijuana and alcohol in his teen years. After being the victim of a stabbing attack in January 2016, he began to use both substances to cope with pain and anxiety from the attack.

ix. Mr. Boreland-Goode left his mother’s home when he was 23 years old and moved to the west end of the city, where he enjoyed being away from the Danzig community.

x. Mr. Boreland-Goode knows some gang members from the Danzig community, but he is not a member of any gang, nor has he had any gang involvement.

xi. Mr. Boreland-Goode has plans for a crime-free future. He aspires to upgrade his education, become a plumber, and eventually own his own plumbing business.

xii. Mr. Boreland-Goode maintains his innocence of the charges before the court. He claims that he was unaware of the firearms that were seized by the police. The officer-in-charge, Detective Constable Bob Anderson of the Toronto Police Service, described Mr. Boreland-Goode as “non-cooperative”.

xiii. Mr. Boreland-Goode responded well while on probation, demonstrating “consistent reporting habits” and participating in counselling. He is suitable for future community supervision.

xiii. If placed on community supervision again, the author of the pre-sentence report is of the opinion that Mr. Boreland-Goode would benefit from participating in community service, as well as an educational program, and rehabilitative programming.

[9] During the sentencing hearing, Ms. Griffiths, counsel for Mr. Boreland-Goode, provided further details concerning the accused’s upbringing and background. Specifically, Ms. Griffiths noted that Mr. Boreland-Goode’s criminality started after he was the victim of an unprovoked stabbing in January 2016, when he was “jumped” after a verbal dispute in a bar. He was stabbed nine times. It was a near fatal attack. As a result, he began to self-medicate with alcohol and marijuana. The stabbing incident, combined with his exposure to criminality in the Danzig community, contributed to the circumstances that have resulted in his criminal record to date. However, Mr. Boreland-Goode has gained greater self-awareness and now has a strong desire to change.

[10] Mr. Boreland-Goode’s criminal record starts in December 2017, with convictions for robbery and mischief under. He received a suspended sentence and 18 months of probation after being credited for the equivalent of 210 days of pre-sentence custody for the robbery offence and 30 days’ credit in respect of the mischief charge. A weapons prohibition order was also imposed. Two years later, in December 2019, he was convicted of one count of failing to comply with a release undertaking, one count of failing to comply with a recognizance, one count of failing to comply with a probation order, one count of flight from police, and one count of impaired/over 80. After receiving credit for 90 days of pre-sentence custody, he was sentenced to very short intermittent jail sentences for each offence and placed on probation for one year. Finally, although not reflected in the criminal record filed at the sentencing hearing, I am informed that Mr. Boreland-Goode was convicted of failing to comply with his recognizance of bail for which he used 60 days of his pre-trial custody. He has no prior convictions for firearm offences.

Circumstances of Pre-Sentence Incarceration

[11] Mr. Boreland-Goode filed an affidavit attesting to the circumstances of his pre-sentence incarceration. He was detained following his arrest on January 16, 2022, but ultimately released on a house arrest bail on February 14, 2022. He was re-arrested on May 9, 2022, and charged with breaching the terms of his bail. He has been detained since May 9, 2022. To date, he has been in custody for a total of 609 days.

[12] Mr. Boreland-Goode has already used 60 days of his incarceration when sentenced for breaching the terms of his bail.[^2] Consequently, of the 609 days that he has been incarcerated, only 549 days are now available for credit. Counsel agree that Mr. Boreland-Goode is entitled to credit at a rate of 1.5:1 pursuant to s. 719(3.1) of the Criminal Code and the principles set out in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, aff’d 2014 SCC 26, [2014] 1 S.C.R. 575. Accordingly, applying the Summers credit, Mr. Boreland-Goode has served the equivalent of 823.5 days (i.e., 2 years and 94 days).

[13] Mr. Boreland-Goode’s time in detention has been at two facilities: the Toronto East Detention Centre and the Toronto South Detention Centre. Mr. Boreland-Goode was originally detained at the Toronto South Detention Centre (“Toronto South”). He was transferred to the Toronto East Detention Centre (“Toronto East”) on November 25, 2022. Mr. Boreland-Goode’s affidavit describes spending approximately one and a half months in “full lockdown” conditions at Toronto South, where access to showers, phone calls, and a change in clothing were very limited. This is supported by the “Lockdown Summary” records filed at the sentencing hearing. Notably, the Lockdown Summary from Toronto South indicates that all lockdowns were related to “staff shortages”. Mr. Boreland-Goode’s affidavit speaks to the impact of these conditions on his mental health.

[14] While Ms. Griffiths argues that the entirety of Mr. Boreland-Goode’s pre-sentence incarceration has had an adverse impact, the conditions Mr. Boreland-Goode experienced at Toronto South were particularly harsh. Ms. Griffiths noted that close to 60 percent of Mr. Boreland-Goode’s time at Toronto South was subjected to lockdowns.[^3] Mr. Boreland-Goode has also been subjected to lockdowns at Toronto East, but far fewer: the records show three “all day” lockdowns and 33 partial lockdowns during 345 days of incarceration, as of November 2, 2023, the date of the report.[^4]

[15] Mr. Boreland-Goode’s affidavit also speaks to the impact of the COVID-19 pandemic. As someone with asthma, he is particularly fearful of contracting COVID. His affidavit details the stress and extreme anxiety he continues to suffer as a result of incarceration. For the first time in his life, he has been prescribed medication by the jail psychiatrist and psychologist to assist with his depression and anxiety. He believes he has been diagnosed as having Post Traumatic Stress Disorder (“PTSD”) as a result of his constant ruminations over past traumas. The pre-sentence report refers as well to Mr. Boreland-Goode seeing the psychiatrist at Toronto East to address his past trauma and that he is on psychotropics to address his anxiety.

Evidence of Systemic Discrimination

[16] Counsel agree that as someone who has experienced anti-Black racism, Mr. Boreland-Goode is entitled to have the impact of systemic racism considered as a mitigating factor in sentencing: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641.

[17] During submissions, defence counsel argued that Mr. Boreland-Goode’s disrespect for law enforcement stems from his numerous negative encounters with the police. For instance, aside from his experience of being carded when he was only nine years old, once he obtained his driver’s licence immediately upon turning 16 years of age, he was often pulled over for having tinted windows or a faulty taillight. The defence argues that these negative experiences provide important context in which to assess Mr. Boreland-Goode’s prior convictions for violating release orders.

POSITIONS OF THE PARTIES

[18] The Crown submits that Mr. Boreland-Goode should be sentenced to a total of three and a half years, less a Summers credit for his pre-sentence custody. The Crown’s position is that the three-and-a-half-year sentence ought to be apportioned as follows: two years and ten months’ imprisonment for the offence of possession of a loaded prohibited firearm; and a consecutive eight months’ imprisonment for the offence of breaching the weapons prohibition order.

[19] Counsel for Mr. Boreland-Goode submits that the appropriate sentence is time served with a period of probation. The defence argues that this would take into account Mr. Boreland-Goode’s background, the circumstances of the offence, and credit given pursuant to the principles set out in Summers, R. v. Duncan, 2016 ONCA 754, and R. v. Marshall, 2021 ONCA 344. The defence suggests an appropriate division would be two years’ imprisonment for the offence of possession of a loaded prohibited firearm; and a consecutive six months’ imprisonment for the offence of breaching the weapons prohibition order.

[20] As is evident from the above, the parties agree that the breach of the prohibition order warrants a consecutive sentence of at least six months’ imprisonment. This is consistent with the governing jurisprudence: see R. v. Showbeg, 2023 ONCA 549, at para. 5. The parties also agree that a probation order is also appropriate with a term that requires Mr. Boreland-Goode to attend counselling as directed.

[21] In the event that I find a sentence of time-served is not appropriate, the defence argues that any additional period of incarceration should be served on a conditional sentence order. The Crown is opposed to the imposition of a conditional sentence on the basis that it is inappropriate in the circumstances of this case.

[22] The defence relies on R. v. Marier, 2023 ONSC 5194, in support of the request for a conditional sentence. In Marier, Garton J. imposed a conditional sentence order of 2 years less 46 days of a Summers and a Duncan credit for a youthful first offender who pleaded guilty to the possession of a loaded prohibited firearm. The firearm was a 9 mm handgun, loaded with 10 rounds of ammunition that the offender had in a satchel and tossed away while in flight from the police. In finding a conditional sentence appropriate, Garton J. noted that “[c]ases falling in the middle of the spectrum – that do not involve additional criminal activity – can and do attract sentences in the upper reformatory or lower penitentiary range”: Marier, at para. 118. Garton J. further noted that in Morris, the Court of Appeal for Ontario stated that conditional sentences, when properly used, “can ameliorate the longstanding problem of the over-incarceration of young Black men”: Marier, at para. 120, citing Morris, at para. 180.

[23] I am also aware of other cases in which a conditional sentence has been imposed for the offence of possession of a loaded prohibited firearm: see, R. v. Ramos, 2023 ONSC 1094; R. v. Baldwin, 2021 ONSC 7025. Indeed, in R. v. Desmond-Robinson, 2022 ONCA 369, at para. 13, the court found that “conditional sentences may well be appropriate” for firearm offences. In that case, the firearm was a sawed-off shotgun found in the offender’s closet along with ammunition.

CASE LAW - Range of sentence

[24] The Crown filed the following decisions in support of its position: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 [“(Nur (SCC)”]; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233; R. v. McKenzie, 2016 ONSC 5025; R. v. Ledinek, 2018 ONCA 1017; and Showbeg.

[25] In Nur (SCC), the Supreme Court of Canada struck down mandatory minimum sentences for possession of firearms contrary to s. 95(1) of the Criminal Code. The Supreme Court found, however, that weighty sentences were appropriate and upheld a sentence of 40 months’ imprisonment for a 19-year-old first offender who pleaded guilty to one count of possessing a loaded firearm. The firearm in question was a 22 calibre semi-automatic loaded handgun that the offender threw away while being chased by the police.

[26] In Brown, the offender was originally sentenced to five and a half years’ imprisonment for possession of a loaded restricted firearm and one year concurrent for breaching a prohibition order. In that case, the offender was arrested on an immigration warrant and found with a loaded handgun in his pants and ammunition in his pocket. At the time, he was subject to two lifetime firearm prohibition orders that stemmed from convictions for firearm offences. He pleaded guilty. His record consisted of 34 convictions. The Court of Appeal for Ontario allowed the Crown appeal and increased the sentence to seven and a half years for the offence of possession of a loaded restricted firearm and one year consecutive for the breach. Fresh evidence admitted on appeal showed that the offender was pursuing his education and making rehabilitative efforts. The court found that the fresh evidence did not alter the need for a sentence that furthered the objectives of denunciation, deterrence, and public protection. At para. 14, the court noted that “[h]andguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public”.

[27] In McKenzie, the 33-year-old offender was sentenced to three and a half years after being found guilty of possession of a prohibited firearm with readily accessible ammunition and breach of a prohibition order. In that case, the police executed a warrant at the offender’s residence and found a 9 mm handgun. Beside the handgun was a magazine loaded with seven rounds of 9 mm ammunition. The offender offered no explanation for his possession of the firearm. He was the father of three children and owned a roofing business. He had a challenging childhood. He had a dated criminal record for property offences, drug offences, and offences against the administration of justice. There was no evidence that the firearm was connected to any criminal activity. After deducting one year credit for his pre-sentence custody and strict bail conditions, the offender was sentenced to two years’ imprisonment for the offence of possession of a prohibited firearm and six months consecutive for breaching the prohibition order. The court rejected the appropriateness of a conditional sentence, noting that it would fail to address the gravity of the offence as well as the principles of deterrence and denunciation.

[28] In Ledinek, a 20-year-old offender pleaded guilty to possessing a loaded prohibited firearm in violation of a prohibition order. He received a sentence of 45 months’ imprisonment for the possession charge and 12 months consecutive for the breach charge. In that case, the offender had a loaded semi-automatic handgun in the backseat of a vehicle with four other occupants. He had a criminal record for similar prior convictions. The trial judge did not grant a Duncan credit, in recognition of the conditions of his 21 months of pre-trial custody. The Court of Appeal for Ontario upheld the sentencing, finding that the “global sentence imposed was well within the range of sentences imposed for similar offenders, guilty of similar offences”: at para 8. In Showbeg, the offender was given a global sentence of six years imprisonment after being convicted of possession of a loaded prohibited firearm and two counts of breaching a weapons prohibition. In that case, the firearm was found concealed in the offender’s pants after he was arrested while driving. At the time, the offender was subject to two lifetime prohibition orders. The trial judge accepted the offender’s explanation that after being shot, he carried the firearm for protection. Although the offender had a related criminal record, there was a gap of over 10 years since his last conviction. On appeal, the Court of Appeal for Ontario stated that the “[a]pplicable range is eight-ten years for a third s. 95 offence” and that the trial judge erred in ordering that the one-year sentence for each of the two breach offences be served concurrently rather than consecutively: at para. 8. Consequently, the Crown’s appeal against sentence was allowed. The one-year sentence on the two breach convictions were ordered to be served consecutively.

[29] I have also considered the cases filed by defence counsel, namely: Morris; R. v. Hassan, 2023 ONSC 5040; R. v. McEwan, 2023 ONSC 1608; R. v. H-O., 2022 ONSC 4900; R. v. Batchelor, 2022 ONSC 2392; and Marier.

[30] In Hassan, the 38-year-old offender was given a suspended sentence and 18 months’ probation (less a Summers credit of 18 and a half months of pre-sentence custody) for possession of a loaded prohibited firearm. Video surveillance showed that the offender brought a loaded firearm to a dispute and discharged it after he and his friend were shot at. His friend was killed. The offender pleaded guilty. He had a dated and unrelated minor, criminal record. He received an additional Duncan credit of 188 days in recognition of the harsh conditions of his pre-sentence custody due to the COVID-19 pandemic, medical issues, and the extensive lockdowns arising from staff shortages.

[31] The McEwan decision involved an offender convicted of a number of offences related to human trafficking. The offender was granted a Duncan credit of 180 days in recognition of the number of lockdowns and the impact of the COVID-19 pandemic during his 320 days in custody. In granting a Duncan credit, the court recognized that some institutional lockdowns are “an expected part of running a secure facility”. However, it is unacceptable when 50 percent of an individual’s pre-sentence custody is spent in lockdowns, most of which stem from staff shortages: at para. 101.

[32] The H-O. decision also addresses the use of a Duncan credit as a communicative tool to condemn inhumane conditions in provincial detention facilities arising from lockdowns. In that case, the court observed that the “harsh conditions at [Toronto South] have been widely recognized and condemned by this Court on numerous prior occasions”: at para. 88. The offender, who pleaded guilty to six human trafficking related offences, was granted a Duncan credit in recognition of the punitive conditions described by the court as “shocking, unconscionable, and inhumane”: at para. 90.

[33] The Batchelor decision addresses the availability of a Duncan credit in recognition of the added hardship that can arise from the impact of the COVID-19 pandemic. In awarding a Duncan credit, the court referred to R. v. Morgan, 2020 ONCA 279, as support for the proposition that judicial notice can be taken of the added hardship posed by the COVID-19 pandemic on inmates: at para. 65. The court found that a Duncan credit is available on grounds of hardship even without specific evidence, as hardship is “self-evident”: at para. 62. The court further found that in cases where evidence is led of specific hardship, then “the Duncan credit can be given a greater consideration”: at para. 62.

[34] The defence relies on the Marier decision to support the position that a conditional sentence order is appropriate for s. 95(1) offences. In Marier, the youthful first offender pleaded guilty to possession of a loaded prohibited firearm and received a conditional sentence of two years (less 46 days of a Summers and Duncan credit for the 29 days in pre-sentence custody, of which 16 days were subject to lockdowns). Marier was 19 years old at the time of the offence and 23 years old at the time of sentencing. He was observed tossing a satchel containing a 9 mm handgun while being chased by police. At the time, he was on bail with the term that he not possess any weapons. The court accepted that the firearm was for the purposes of protection. There was extensive evidence of the anti-Black racism he experienced from a young age, as well as the many rehabilitative steps he took during his four years on bail. In finding that a conditional sentence was appropriate, Garton J. found that the three-to-five-year range that is often cited for the offence of possession of a loaded prohibited firearm applied where the firearm is connected to other criminal activity and is thus a “tool of the trade”. As Marier’s conduct fell in the middle of the spectrum, the appropriate sentencing range was upper reformatory to lower penitentiary.

[35] The cases filed by both the Crown and defence demonstrate that the range of sentence for the offence of possession of a loaded prohibited firearm varies from a low of a two-year conditional sentence order to a high of a mid-to-upper single digit penitentiary sentence. This range reflects the spectrum of moral blameworthiness associated with the offence. At the low end of the spectrum are regulatory type violations. At the high end are offenders who carry a loaded gun on the street for the purpose of committing criminal offences: R. v. Nur, 2013 ONCA 677 [“Nur (ONCA)”], at para. 51, aff’d in Nur (SCC).

[36] The parties agree that this case falls in the middle of the spectrum. Mr. Boreland-Goode’s conduct is significantly more serious than a regulatory violation, but in light of the jury’s verdict, there is no evidence that the firearm was a “tool of trade” and associated with other criminality. The fact that the loaded firearm was found in Mr. Boreland-Goode’s SUV vastly increases the risk of danger it posed.

OTHER CONSIDERATIONS

Pre-sentence Custody

[37] Mr. Boreland-Goode should be given credit for the time he has spent in pre-sentence custody pursuant to s. 719(3) and (3.1) of the Criminal Code and Summers. To date, Mr. Boreland-Goode has spent 549 days in custody. Enhanced at 1.5 days for each day spent in presentence custody, this is 823.5 days, which I will round up to 824 days of credit (2 years and 13½ weeks).

Lockdown Considerations

[38] In appropriate circumstances, particularly harsh pre-sentence incarceration conditions can be relevant when determining an appropriate sentence. In determining whether pre-sentence incarceration conditions are a mitigating factor, sentencing courts are to consider “both the conditions of the presentence incarceration and the impact of those conditions on the accused”: Duncan, at para. 6.

[39] In Marshall, at para. 52, Doherty J. clarified that the Duncan credit is distinct from the Summers credit for pre-trial custody in that it does not result in a mathematical calculation to be deducted from what is determined to be an appropriate sentence. Rather, if the conditions of the pre-sentence custody are “particularly harsh”, the sentencing judge may award additional credit for the harsh conditions. Duncan recognizes that this “can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the ‘Summers’ credit will be deducted”: Marshall, at para. 52.

[40] While some cases have awarded a clear numerical Duncan credit, in determining an appropriate sentence, I have followed the approach in Marshall and have not calculated a specific number of days for which Mr. Boreland-Goode should be credited for the 164 days of lockdowns while in pre-sentence custody at both the Toronto South Detention Centre and Toronto East Detention Centre. Nor have I assigned a numerical value to account for the impact of the COVID-19 pandemic on the conditions of his incarceration.

Systemic Factors

[41] The parties agree that in determining an appropriate sentence, I must consider the effects of race and systemic discrimination as a mitigating factor, as recognized in Morris. In Morris, at para. 13, the Court of Appeal for Ontario recognized that “[s]ocial 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 as described in s. 718”. That said, “an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence”: Morris, at para. 13.

[42] Mr. Boreland-Goode is a relatively young Black man. The pre-sentence report details an incident of anti-Black racism in which, as a nine-year-old-boy, he was carded by the police. During the sentencing hearing, I heard about other incidents in which Mr. Boreland-Goode was the subject of systemic racism.

[43] Mr. Boreland-Goode grew up in the Danzig community, where he was exposed to violence and a negative peer group. Although Mr. Boreland-Goode knows of gang members, he is not involved in any gang activity. His formative years lacked the benefit of a father. Mr. Boreland-Goode was the victim of a near fatal, unprovoked stabbing attack when he was 18 years old.

[44] Mr. Boreland-Goode’s experience with anti-Black racism and the social context of his upbringing inform my determination of an appropriate sentence in this case: Morris, at para. 123. His 26 years of life have not been easy due to many factors beyond his control. I am also cognizant of the fact that a jail sentence can have a disproportionate impact on him: R. v. Hills, 2023 SCC 2, 422 C.C.C. (3d) 1, at para. 135.

[45] Mr. Boreland-Goode continues to deny any knowledge of the shotguns found in his SUV. However, his defence counsel argued that his prior victimization and his experience in the Danzig community offer some context to explain why one might possess a loaded firearm. These experiences also explain his prior convictions for breaching orders. I agree that this background provides some context. However, its value in assessing Mr. Boreland-Goode’s moral blameworthiness is limited by his continued denial that he owned the black duffle bag where the firearm was found and the absence of any explanation for why the duffle bag was found in his SUV.

ANALYSIS

[46] The “fundamental purpose” of sentencing is to “protect society and to contribute 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” as set out in s. 718 of the Criminal Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in the rehabilitation of offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[47] In crafting an appropriate sentence, regard must also be given to proportionality, which is the fundamental principle of sentencing. Section 718.1 directs that any sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at 557-59.

[48] Section s. 718.2 of the Criminal Code directs sentencing courts to consider a number of other statutory principles, including the following: (a) a sentence should be increased or reduced to account for any mitigating or aggravating circumstances relating to the offence or the offender; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; and (d) courts should exercise restraint in imposing imprisonment (see ss. 718.2(d) and (e)). In other words, all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[49] The aggravating circumstances of this case include the following factors:

i. The firearm found in Mr. Boreland-Goode’s possession was loaded and cocked back. It posed an inherent risk of danger to society.

ii. The firearm was carelessly and dangerously stored in Mr. Boreland-Goode’s vehicle, along with ammunition and a second inoperable sawed-off shotgun.

iii. While still young, Mr. Boreland-Goode is not a first offender. He has eight prior convictions, including a robbery conviction.

iv. There is no evidence or explanation as to why Mr. Boreland-Goode possessed a loaded operable sawed-off shotgun: McKenzie, at para. 18, citing R. v. Ellis, 2016 ONCA 598, 132 O.R. (3d) 510, at para. 80.

[50] The mitigating circumstances of this case include the following:

i. The conditions of Mr. Boreland-Goode’s pre-sentence incarceration have been harsh. I am persuaded that a Duncan credit is appropriate in this case.

ii. Mr. Boreland-Goode has shown insight into his offending behaviour and has rehabilitative prospects. He hopes to further his education and become a tradesman. He is still young. His strong work ethic, combined with the support of his family and employer, offer hope that he can turn his life around.

iii. Mr. Boreland-Goode has faced many challenges in life, including systemic anti-Black racism. I am mindful of the over-incarceration of young Black male offenders when determining the fit sentence: Morris, at paras. 86, 88-89, 93-95, and 123.

iv. Mr. Boreland-Goode was steadily employed before his arrest and can resume work upon his release from custody.

[51] Rehabilitation is an important consideration in this case. However, having regard to all of the circumstances, the principle of rehabilitation must be of secondary importance.

[52] Denunciation and deterrence are the paramount concerns in this case. Gun violence is pervasive in the City of Toronto. Firearm possession offences such as this one pose a grave threat to the safety of the community and call for a denunciatory sentence that will deter others: see Nur (ONCA), at para. 206; McKenzie, at para. 23. Indeed, in its recent decision of R. v. Smith, 2023 ONCA 620, at para. 7, the Court of Appeal for Ontario stated that “the possession of a loaded handgun is a very serious offence … conduct [that] will normally attract a penitentiary term of imprisonment”: citing Morris, at para. 151.

THE SENTENCE IMPOSED

[53] I find that a sentence of three years and three months’ imprisonment is warranted in the circumstances of this case. This sentence adequately reflects Mr. Boreland-Goode’s degree of moral responsibility while also considering his personal antecedents, cultural background, and prospects of rehabilitation.

[54] In my view, a total sentence of two and a half years’ imprisonment is unfit. It fails to reflect the gravity of the offence and the circumstances of the offender.

[55] Sentences in the range of three years for a first offender are the norm for possession of a loaded prohibited firearm: Ramos, at para. 46. Indeed, while this offence no longer results in a three-year mandatory minimum sentence of imprisonment, the Court of Appeal for Ontario has recognized that even “less serious” charges of possession of a loaded firearm by a first offender “will demand the imposition of sentences at or very near the maximum reformatory sentence”: R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19.

[56] The circumstances of this case are not at the lower end of the seriousness spectrum. Nor is Mr. Boreland-Goode a first offender. In the circumstances of this case, a sentence in the range of three to four years’ imprisonment is entirely appropriate for the offence of possession of a loaded firearm. As noted by Crown counsel, his request for a sentence of two years and ten months of imprisonment for this offence reflects his agreement that some mitigation is required on account of Morris factors.

[57] The offence of breaching a prohibition order is also serious. As stated by the Court of Appeal for Ontario in Showbeg, at para. 5, as a general rule, “violations of prohibition orders require consecutive sentences” to ensure that disregard of such orders do not go unpunished. Consecutive sentences also recognize that a breach of a prohibition order is different behaviour that engages different societal interests: see also R. v. Claros, 2019 ONCA 626, at para. 53; McKenzie, at para. 27; Ledinek. The seriousness of the breach in this case is aggravated by the offender’s prior convictions for violating release orders.

[58] In imposing a consecutive sentence, I recognize that the combined sentence should not be unduly long or harsh. Having regard to the principle of totality, the breach of the prohibition order warrants a consecutive sentence of eight months’ imprisonment. But for the mitigating factors in this case and Mr. Boreland-Goode’s positive prospects for rehabilitation, a consecutive sentence of one year imprisonment would have been entirely appropriate.

[59] Mr. Boreland-Goode is also entitled to 824 days Summers credit for the period he has spent in pre-sentence custody.

[60] Accordingly, the total sentence that is now imposed on Mr. Boreland-Goode is 12 months’ imprisonment, after which he will be placed on probation for a period of 12 months. In addition to the mandatory terms of probation as set out in s. 732.1(2) of the Criminal Code, pursuant to s. 732.1(3), he will be required to report as directed and to take any counselling as directed by his probation officer.

[61] As a result, the effective sentence will be:

Possession of a Loaded Prohibited Firearm, Criminal Code, s. 95(1): 6 months’ imprisonment (in addition to credit of the equivalent of 824 days of pre-sentence custody) and 12 months’ probation.

Possession of a Firearm while Prohibited, Criminal Code, s. 117.01: 6 months’ imprisonment consecutive.

[62] I have carefully considered defence counsel’s request that any additional period of custody be served under a conditional sentence order. I have no doubt that a conditional sentence would be in Mr. Boreland-Goode’s best interests and assist in his rehabilitation. However, in my view, a conditional sentence is inconsistent with the fundamental purpose and principles of sentencing applicable in this case, namely denunciation and general deterrence. Cases in which conditional sentences have been imposed for an offence under s. 95(1) are distinguishable. In this case, both the gravity of the offence and Mr. Boreland-Goode’s moral blameworthiness are significantly greater.

ANCILLARY SENTENCING ORDERS

[63] The following ancillary sentencing orders are also appropriate in the circumstances of this case.

i. First, the offence of possession of a loaded prohibited firearm is subject to a mandatory prohibition order under s. 109(1)(b) of the Criminal Code. Pursuant to s. 109(3), I direct that Mr. Boreland-Goode be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, and explosive substance for life.

ii. Second, pursuant to s. 491(1) of the Criminal Code, I order that the firearms and ammunition seized by the police be forfeited to His Majesty in Right of Ontario and thereafter disposed of as directed by the Attorney General.

iii. Third, as Mr. Boreland-Goode has been found guilty of committing a “secondary designated offence,” pursuant to s. 487.051 of the Criminal Code, I make an order that a number of bodily samples be taken from him for purposes of forensic DNA analysis.

iv. Finally, an order will issue, pursuant to s. 743.21 of the Criminal Code, that while in custody, Mr. Boreland-Goode is not to communicate, directly or indirectly, with Kadiatu Bangura.

[64] I would be remiss if I did not conclude by thanking counsel for their professionalism and assistance throughout the trial and for their helpful submissions on sentence.

J. M. Barrett J.

Released: December 8, 2023

COURT FILE NO.: CR-23-30000598-0000

DATE: 20231208

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

and -

TRAYVON DEVONTE BORELAND-GOODE

reasons for sentence

J.M. Barrett J.

Released: December 8, 2023

[^1]: During the sentencing hearing, defence counsel noted that the pre-sentence report erroneously stated that Mr. Boreland-Goode’s “father left the home seven years ago”. In fact, his father left the family home seven years after the family moved into the Danzig community.

[^2]: I understand that he pleaded guilty on September 21, 2022, and was sentenced to time served of 89 days of imprisonment.

[^3]: The “Lockdown Summary” from the Toronto South Detention Centre shows that there was either a partial or full lockdown on 136 days of the 231 days Mr. Boreland-Goode was at Toronto South.

[^4]: The records provided by the Toronto East Detention Centre covered the period of November 25, 2022 to November 2, 2023.

R. v. Boreland-Goode, 2023 ONSC 6799

Case Summary

INTRODUCTION

THE FACTS

Circumstances of the Offence

Circumstances of the Offender

Circumstances of Pre-Sentence Incarceration

Evidence of Systemic Discrimination

POSITIONS OF THE PARTIES

CASE LAW - Range of sentence

OTHER CONSIDERATIONS

Pre-sentence Custody

Lockdown Considerations

Systemic Factors

ANALYSIS

THE SENTENCE IMPOSED

ANCILLARY SENTENCING ORDERS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 1