R. v. Denneil Morgan, 2024 ONSC 1344

COURT FILE NO.: CR-20-30000358

DATE: 20240229

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DENNEIL MORGAN

Defendant

Caolan Moore, for the Crown

Breana Vandebeek, for the Defendant

HEARD: November 23, 2023, January 22 and 25, 2024

REASONS FOR SENTENCE

C. RHINELANDER, J.:

Introduction

1Denneil Morgan elected trial before me without a jury. He was charged with attempt murder (s.239(1)), discharge firearm (s.244(1)), aggravated assault (s.268(2)), possession of a loaded prohibited or restricted firearm without being the holder of a licence or registration (s.95(1)), and unauthorized possession of a firearm while subject to a prohibition order (s.117.01(1)) contrary to the Criminal Code of Canada.

2On October 6, 2023, I found Mr. Morgan guilty of possession of a loaded firearm without being the holder of a licence or registration and unauthorized possession of a firearm while subject to a prohibition order. I found him not guilty of attempt murder, discharge firearm, and aggravated assault.

3On February 7, 2024, I sentenced Mr. Morgan to a further 15 months imprisonment having considered his pre-sentence custody for a total sentence of 40 months with written reasons to follow. Below are my reasons.

Circumstances of the Offence

4In September of 2019, Mr. Morgan, in the company of other family members and their partners attended “My Father’s Place and Good Vibes Bar” shortly after midnight. This was a restaurant and drinking establishment with a bar and a space for dancing.

5The group had gathered earlier that evening to reminisce and celebrate the life of a family member on the anniversary of his death. Not wanting to go home, the group headed to the bar and continued to drink and socialize.

6Around 1:30 am, Mr. Morgan’s brother, Dwayne Morgan, was stabbed in the abdomen and leg. Denneil Morgan believed the person responsible was their cousin, Stevie Mullings, who uttered a threat towards Denneil Morgan as he left the bar. Denneil Morgan concerned for his brother’s life, went to get his car to drive him to the hospital. He was aware Mr. Mullings had headed in the same direction where they had all parked in a row beside each other. Mr. Morgan was unable to see Mr. Mullings but expressed concern of being ambushed when he accepted the loaded firearm proffered by his friend.

7I was satisfied the Crown established Mr. Morgan did not act in self-defence when he accepted the firearm for the reasons set out in R v. Morgan, 2023 ONSC 7520. The video footage showed, once in possession of the firearm, Denneil Morgan picked up his step as he headed towards the parked cars. His path was not a direct line to his vehicle, he walked in the middle of the parking lot, and looked like he would walk past it unless he made a hard 90 degree turn.

8When Mr. Morgan approached the front of his car, Mr. Mullings lunged at him. Denneil Morgan believed Mr. Mullings was armed with a knife and was about to stab him. Mr. Morgan reacted and fired the gun to protect himself and stop the attack.

9Mr. Morgan was picked up immediately after the shooting by the friend who gave him the loaded firearm. They went towards highway 401 and his friend tossed the firearm out the window. No evidence was led regarding when or who retrieved Mr. Morgan’s rental car. The firearm was never recovered.

10Mr. Morgan acknowledged he was subject to a weapons prohibition order and if found guilty of possession of a loaded prohibited or restricted firearm, a conviction should be entered for the count of unauthorized possession of a firearm while subject to a prohibition order.

Circumstances of the Offender

11Mr. Morgan testified both at trial and at the sentencing proceedings. He was born September 16, 1981, in Toronto, and is currently 42 years of age. He is recently married and the father of fourteen children.

12Mr. Morgan described his upbringing. He is one of five boys that his mother raised as a single mother. His mother was born in Jamaica, and his father in England. Mr. Morgan had intermittent contact with his father and only saw him every two or three years for Christmas.

13Growing up, they initially lived at Jane and Falstaff. Mr. Morgan described this area as a rougher part of Toronto. He was exposed to drug deals in the staircases and hallways of the building where they lived. He witnessed shootings, fights, and crime daily. The family moved to a safer neighborhood when he was 9 years old, although Mr. Morgan was still exposed to criminal activity and interactions with police.

14His mother often worked evenings. The family struggled financially but his mom made sure they had the necessities of life such as food and clothing. Often, he and his older brother were responsible to care for their younger siblings.

15In his early school years, Mr. Morgan attended a behavioral school until grade six. He worked with a psychiatrist to assist him in making better choices and decisions in relation to his attitude and responses. He returned to regular classes for grades six to eight. When he was fifteen, he became a father and left school after grade ten to seek employment.

16In subsequent years, Mr. Morgan fathered more children. To provide for his children, he turned to the sale of drugs, thefts, and robberies. He moved to the area of Islington Avenue and Lakeshore Boulevard which he described as a “bad neighborhood.” He developed a regular clientele base, was familiar with the gangs in the area, and operated independently. He lived there and sold drugs for approximately 20 years. Mr. Morgan was arrested for some of his criminal activities and spent time in custody. In and around 2018 – 2019, Mr. Morgan tried again to enter the workforce. He found work as a barber and in the construction field.

17When asked why he got involved in the drug trade, Mr. Morgan explained it was fast and easy money. At one point he himself had succumbed to drugs and found himself addicted in the early 2000s. Around 2013, he became aware the mother of one of his children had become addicted. This was a source of guilt for Mr. Morgan because that was how he made his money, selling drugs to individuals with substance abuse issues. Soon after, he sought employment as a general laborer but found himself lured back to the drug business where he earned money in larger quantities in less time.

18Mr. Morgan would buy approximately 1 or 2 ounces at a time and would hide the drugs outside. The most he bought at one time was 9 ounces. Mr. Morgan was not asked the nature and form of the drugs he sold, although his record indicates several convictions relate to Schedule 1 substances.

19In more recent years, Mr. Morgan entered the music business and assists in the production of music and managing an artist.

20Growing up in community housing, Mr. Morgan experienced regular interactions with police which he described as negative. He was stereotyped for being a young black male and was presumed guilty rather than provided with the benefit of the doubt. These interactions have played a role in his lack of trust in the criminal justice system.

21Mr. Morgan met his wife in 2015. They have been married for over a year now and share a daughter who is approximately 15 months. Mr. Morgan spoke to his parental responsibilities and how he makes efforts to be involved in each of his children’s lives and spend time with them. He explained all his children are close and he has maintained positive relationships with their respective mothers.

22During these proceedings, it was clear Mr. Morgan has the support of his children, mother, and siblings. Family members and friends attended daily throughout these proceedings. Numerous letters of support were filed with the court, further demonstrating the love and support for Mr. Morgan.

23Mr. Morgan told the court, despite his involvement in the drug trade, he had never possessed firearms in the past and did not store drugs in his home.

24Mr. Morgan has a criminal record which was filed as Exhibit 1 on these proceedings. It spans a period of twenty-five years beginning in 1996, when he was a young person. His last entry was November 21, 2019, for drug offences where he received a sentence of imprisonment for two years. Mr. Morgan’s criminal record is not enviable and consists largely of drug related offences and breaches of court orders. He has no prior convictions for firearm offences.

25Mr. Morgan expressed remorse and acknowledged the impact his actions have had on Mr. Mullings and their family. Holidays are no longer celebrated with everyone together but separate gatherings. He wants to help the family heal and become a productive member of society.

26Evidence was adduced through Mr. Morgan to establish his personal encounters with law enforcement and the justice system. His counsel argued that these lived experiences provide important context for this court to consider when imposing sentence. Mr. Morgan, having experienced anti-Black racism, is entitled to have the impact of systemic racism considered as a mitigating factor in sentencing (R v Morris, 2021 ONCA 680; R v Morris, 2023 ONCA 816.).

Pre-Sentence Custody

27Mr. Morgan was arrested for this incident on October 9, 2019, and released on bail December 1, 2019. He was re-arrested December 19, 2022, and has remained in custody since. To date, he has a total of 460 days of presentence custody. Counsel agreed that Mr. Morgan 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, aff’d 2014 SCC 26. Applying the Summers credit, Mr. Morgan has served the equivalent of 690 days (i.e., one year, ten months, three weeks, and four days).

28In addition to credit for pre-sentence custody, Mr. Morgan was subjected to harsh conditions while in custody pending his trial. Mr. Morgan spent time in detention at two institutions: the Toronto East Detention Centre (“TEDC”) and the Central North Correctional Centre (“CNCC”). Records from the institutions were obtained and Mr. Morgan gave evidence about his time at each institution. He advised things were more difficult at the CNCC. Lockdowns were more frequent due to staffing issues and COVID precautions. When lockdowns occurred, tensions ran high with other inmates and resulted in more fights. Lockdowns interfered with access to showers, phone calls, clothing changes, and exercise. Records were produced confirming the frequency of lockdowns at the institutions. Further, Mr. Morgan contracted COVID while at the CNCC and was required to be isolated resulting in 12 days of lockdown for reasons noted as medical isolation.

Evidence of Stevie Mullings

29Mr. Mullings suffered physical harm as the result of the commission of an offence. Mr. Morgan was found to have acted in self-defence when he shot Mr. Mullings.

30Stevie Mullings suffered multiple gunshot wounds. He was shot in the arm, leg, and abdomen. He was driven to a hospital and subsequently transported by ambulance to another hospital where he remained for approximately two weeks.

31Mr. Mullings did not testify at the trial but was called as a witness for Denneil Morgan at the sentencing hearing. He described his relationship with Mr. Morgan as akin to brothers. Prior to this incident, they saw each other all the time. He described the impact the shooting has had on the entire family and his desire for the family to heal together and put this behind them. Mr. Mullings has no concerns for his safety and expressed forgiveness to Denneil Morgan in addition to gratitude to the court process and the crown.

32It is important, at this point, to be reminded Mr. Morgan is not being sentenced for shooting Mr. Mullings but for being in possession of a loaded firearm while prohibited.

Parties’ Positions

33The Crown argued for a global penitentiary sentence of 5 years less credit for pre-sentence custody. Mr. Moore recommended a sentence of 4.5-year sentence be imposed for possession of a loaded prohibited or restricted firearm, with a consecutive sentence of 6 months for the unauthorized possession of a firearm while subject to a prohibition order. The Crown was flexible on how the time was apportioned, provided the total sentence was equivalent to 5 years.

34Counsel for Mr. Morgan initially argued a conditional sentence ought to be imposed, after consideration for pre-sentence custody.

35This matter was initially scheduled for a decision on sentence on January 22, 2024. In the interim, the Ontario Court of Appeal released it decision in R v. Johnston, 2023 ONCA 808, which held conditional sentences were not available where the total custodial sentence imposed was greater than two years. I inquired if either party wished to make further submissions. Written materials were received on behalf of the defence, and the parties were provided an opportunity to make oral submissions on January 24, 2024.

36In further submissions, Ms. Vandebeek acknowledged the sentence she initially requested would not be available. Based on the unique facts of this case, she argued a further custodial sentence would serve no useful purpose. Further, none of the principles of sentencing: deterrence, denunciation, rehabilitation, restraint, parity, proportionality would be advanced by Mr. Morgan’s continued incarceration. Ms. Vandebeek urged the court to impose a sentence in the range of time served to a maximum of 2.5 years jail less credit for presentence custody.

37In the alternative, should I not find a sentence of time-served appropriate, Ms. Vandebeek recommended a sentence of time served for possession of the loaded firearm, followed by a six-month conditional sentence for possessing a firearm while prohibited.

38Both parties agreed that a sentence for a breach of a prohibition order warrants a consecutive sentence. Jurisprudence suggests the starting point for a first offence is at least six months consecutive to any other sentence imposed.

Analysis

39The defence provided several decisions where conditional sentences were imposed for possession of a loaded firearm: R v. Nuttley, 2013 ONCJ 727, R v. Dalton, 2018 ONSC 544, R v. Hassan, 2017 ONSC 4570, R v. Ali (Quidayan), 2012 ONSC 7013, R v. Roberts, 2023 ONCJ 226, R v. Baldwin, 2021 ONSC 7025, R v. Toussaint, [2020] O.J. 543. The conditional sentences in those cases ranged from a low of 12 months to 2 years less a day after taking into consideration pretrial custody. I am also aware of other decisions where courts have found conditional sentences appropriate. In many of these cases, the circumstances of the offence were at the lower end of the spectrum and did not involve other criminal activity. I do not disagree there are circumstances where a conditional sentence may be appropriate. However, this is not one of them.

40Mr. Morgan’s criminal record consists largely of drug related offence and breaches of court orders. I do not agree that Mr. Morgan is a candidate for a conditional sentence order, nor do I agree a sentence of time served is appropriate in this case.

41The Crown filed the following decisions in support of its position: R v. Nur, 2015 SCC 15, R v. Brown, Unreported March 22, 2022 (SCJ), R v. Marshall, 2015 ONCA 692, [2015] OJ 5348 (ONCA), R v. Khiar, [2015 OJ 4701 (SCJ), R v. MacKenzie, 2016 ONSC 5025, [2016] OJ 4273 (SCJ), R v. Mansingh, 2016 ONSC 94, [2016] OJ 92 (SCJ); 2017 ONCA 68, [2017] OJ 379 (ONCA), R v. Jamma, 2018 ONSC 1252, [2018] OJ 1130 (SCJ), R v. Williams, 2018 ONSC 5409, R v. Thavakularatnam, 2018 ONSC 2380, 2018 OJ 2038 (SCJ), R v. Mohameet-Zane, 2018 ONSC 1050, [2018] OJ 1003 (SCJ). The range of sentences was between 3 to 9 years. Many of the individuals in these cases had no prior criminal antecedents.

42In R v. Edgar Brown, Justice McMahon sentenced the individual to 9 years (8 years for possession of a firearm and 1 year consecutive and 1 year concurrent for two counts of breaching firearm prohibition orders). Mr. Brown was acquitted on the charge of manslaughter based on self-defence. He had fired two rounds at the deceased that resulted in his death. Mr. Brown had a criminal record for previous firearm convictions including shooting a different person in the past. This case is distinguishable from Mr. Morgan who no prior firearm convictions on his record.

43The Crown relies on Nur, who received a 40-month sentence. Mr. Nur was a 19-year-old first offender who pleaded guilty to possessing a .22 calibre semi-automatic handgun with an over-sized ammunition clip with 23 bullets in the clip and one in the chamber. He disposed of the firearm during a foot chase with police. The Supreme Court upheld the sentence noting the seriousness of the possessing a loaded firearm although it stuck down the mandatory minimum sentence of three years for possession of a firearms contrary to s.95(1) of the Criminal Code.

44In Thavakularatnam, a 20-year-old man with no criminal record pleaded guilty to possession of a loaded firearm and was sentenced to 40 months incarceration. Mr. Thavakularatnam had attended at a busy shopping mall filled with members of the public with a loaded firearm in a satchel slung across his body. The Court opined on the increase in gun crime in Toronto and the impact offences related to possession of firearms has on members of the public and family. The consequences to innocent bystanders and victims of such crime are great.

45In R v. Parranto, 2021 SCC 46, the majority held that sentencing ranges are not fixed but rather are there to assist trial judges. Courts must craft sentences that are fit in the circumstances. It is important to consider the individual facts of an offence and that of the individual offender. The circumstances of any case can be readily distinguished from another. Sentencing is not a precise science but an individualized process.

46Mr. Morgan 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. Morgan has spent 460 days in custody. Enhanced at 1.5 days for each day spent in presentence custody, this is 690 days, which I will round up to 23 months.

47Records from the Central North Correctional Centre and the Toronto South Detention Centre setting out the number of lockdowns that Mr. Morgan was subjected to during his pre-sentence custody were filed with the court. In addition, the Court heard viva voce evidence from Mr. Morgan outlining the conditions of pre-sentence custody and its impact on him. Mr. Morgan experienced more significant lockdowns at the CNCC for more than 40 days, 12 of which were related to a medical isolation after he contracted COVID. At the TEDC, Mr. Morgan experienced less full day lock downs but almost three months of evening lock downs. These lockdowns interfered with access to showers, phone calls, clothing changes, and exercise. When evening lockdowns occurred it impacted opportunities to contact counsel and family who are often unavailable during the day.

48Counsel agreed Mr. Morgan should receive consideration pursuant to Duncan/Marshall for harsh jail circumstances and a number was recommended to the court as of November 23, 2023. However, Mr. Morgan was not sentenced until February 7, 2024. Having considered submissions of counsel, a review of the records from the two institutions, Mr. Morgan’s evidence, and the additional time that has passed, Mr. Morgan is given credit as having served 25 months.

49Mr. Morgan testified in these proceedings and provided further background information about his upbringing and lived experiences with racism, and particular anti-Black racism. Mr. Morgan’s circumstances and experiences provide insight regarding choices he made that evening.

50The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing sentences with objectives that include denunciation, deterrence, rehabilitation, the promotion of responsibility, and the acknowledgement of the harm that criminal activity does to victims and to our community. The sentence that I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

51Section 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.

52The aggravating factors of this case include the following:

i. Mr. Morgan had the loaded firearm in a public place, when the bar was closing, and numerous members of the public had exited and were nearby;

ii. The firearm was never recovered, and Mr. Morgan was present when it was disposed of;

iii. Mr. Morgan was subject to a weapons prohibition order.

53The mitigating circumstances of this case include the following:

i. Mr. Morgan was remorseful for his actions and wants to make positive changes to his lifestyle;

ii. Mr. Morgan has the support and love of his family which will assist in his rehabilitation, including Mr. Mullings who has forgiven him;

iii. Mr. Morgan had employment before he was rearrested and can resume work when released from custody.

54Although rehabilitation is an important consideration, denunciation and deterrence are the paramount concerns in this case.

Sentence

55I considered the cases counsel provided and was grateful for their assistance.

56It is clear from the evidence Mr. Morgan did not bring a loaded firearm to the bar. However, when it was offered, there was no hesitation in accepting it. This troubled me. For someone with no prior experience with firearms, to accept a loaded gun, and walk through the parking lot while trying to conceal it in his jacket pocket showed extremely poor judgement. Not only did he put others at risk, but there was a clear danger that he could have shot himself.

57Almost every morning, residents in the Greater Toronto area awake to media reports of shootings that have taken place. A few days before Mr. Morgan was sentenced, two men were shot and killed on the front porch of a house that was not associated to them or the individuals responsible for their deaths.

58As mentioned above, Mr. Morgan accepted the gun and headed in the same direction as Mr. Mullings. I do not know what would have happened if Mr. Mullings had not lunged towards Mr. Morgan, nor will I speculate. I do note, the result may have been very different and could have been more tragic for either or both Mr. Morgan and Mr. Mullings, and other members of the public that morning.

59On December 15, 2023, Bill C-21 received Royal Assent and increased the maximum penalty from 10 years to 14 years for offences contrary to s.95, including possession of a loaded prohibited or restricted. Gun violence has become a pandemic and is extremely concerning to members of the public.

60Appellate decisions have confirmed that breaches of prohibition orders require a consecutive sentence to recognize the separate offence and to ensure the offence does not go unpunished. The breach of the prohibition order in this case is aggravated by Mr. Morgan’s prior convictions for disregarding court orders. However, the circumstances under which he came to possess the firearm are much different than other cases. In many cases a first offence for disregarding a prohibition order attracts a sentence between 6 to 12 months. In this case, after careful consideration, I have determined the appropriate sentence is one of 4 months consecutive to possession of the loaded firearm.

61Having taken into consideration all factors, including those that are aggravating and mitigating, Mr. Morgan’s previous antecedents and the unique circumstances of this case, I find that the appropriate total sentence is 40 months less credit for 25 months of pre-sentence custody. The breakdown of the sentence is 3 years for possession of a loaded firearm, and four months consecutive for possession of a firearm while prohibited. The warrant of remand will reflect credit for pre-sentence custody of 25 months, and 15 months jail sentence remaining.

Ancillary Orders and Probation

62The following ancillary sentencing orders are also appropriate in the circumstances of this case.

i. 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. Denneil Morgan be prohibited from possessing any firearm, crossbow, prohibited or restricted weapon, ammunition, and explosive substance for life.

ii. Mr. Denneil Morgan has been found guilty of committing a “secondary designated offence,” pursuant to s. 487.051 of the Criminal Code, I make an order that bodily samples be taken from him for purposes of forensic DNA analysis.

iii. Lastly, Mr. Denneil Morgan shall be placed on probation for a period of 12 months with statutory terms to i) keep the peace and be of good behaviour; ii) appear before the court when required to do so by the court; and iii) notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation office of any change in employment or occupation.

63I decline to order a no-contact provision for Stevie Mullings based on his testimony at these proceedings.