Court File and Parties

COURT FILE NO.: CR-22-90000653-0000 DATE: 20240308

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – TREYSHAWN DUFFY

Counsel: David Quayat, Counsel for the Public Prosecution Service of Canada Royland Moriah, Counsel for Treyshawn Duffy

HEARD: November 24, 2023, February 6, and February 21, 2024

HIMEL J.

Reasons for Sentence

[1] Treyshawn Duffy entered pleas of guilty to the following charges: possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as amended (“CDSA”), possession of a loaded restricted weapon contrary to s. 95(1) of the Criminal Code of Canada, R.S.C., 1985 (“the Code”) and possession of an overcapacity magazine while prohibited from doing so under s. 109(1) of the Code contrary to s. 117.01(1) of the Code. He had elected to be tried by a judge sitting alone.

[2] The plea inquiry pursuant to s. 606(1) of the Criminal Code was satisfied. Mr. Duffy confirmed that he was entering these pleas voluntarily, that he understood that the pleas were an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the pleas, and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Following the conviction, I ordered that a pre-sentence report (“PSR”) be prepared. It has now been received. Counsel have made their submissions on sentence. The following are my reasons for sentence.

Factual Background

[3] In May of 2021, members of the Gun and Gang Task force commenced an investigation into Treyshawn Duffy. Resulting from the information obtained, police applied for and were granted a Criminal Code search warrant for the residential addresses of 504-4100 Lawrence Avenue East, Scarborough, 201-4100 Lawrence Avenue East, Scarborough and a white Toyota Corolla motor vehicle bearing Ontario Licence plate CLLZ 660 and with Vehicle Identification Number 5YFBPRBE6LP087401.

[4] On Wednesday, June 2, 2021, police commenced surveillance in the area of 4100 Lawrence Avenue East, Scarborough. Mr. Duffy was observed leaving the residential building from the east side and entering the white Toyota Corolla through the driver’s door. He was the sole occupant of the vehicle. He drove the car out of the parking lot and was followed to the Global gas station located at 4418 Kingston Road, Scarborough. He drove up to a pump and was subsequently arrested without incident.

[5] Police attended at the address of 4100 Lawrence Avenue East, apartment 504 to execute the search warrant. In the residence they located 258.85 grams of powder cocaine and 30.55 grams of crack cocaine in a safe found in Mr. Duffy’s bedroom. Police found pieces of identification in his name including a Social Insurance Number and a health card.

[6] When they executed the search warrant on the Toyota Corolla vehicle that Mr. Duffy was driving, police found a Glock semi-automatic handgun with 17 rounds of 9 mm ammunition in the trunk. They also found a temporary driver’s licence in Mr. Duffy’s name in a satchel resting on the front passenger seat of the car and Canadian currency of $890.00.

[7] Mr. Duffy was on a weapons prohibition pursuant to s. 109 of the Code for 10 years which was imposed on July 6, 2018. In this case, counsel brought a Garofoli application before Code J. and he upheld the search warrant and the search of the residence and the car.

Evidence on the Sentencing Hearing

[8] Counsel filed an Agreed Statement of Facts which has been marked as an exhibit. Crown counsel submitted the criminal record of Mr. Duffy which outlines that on January 1, 2018, he was convicted of possession of a Schedule II substance and sentenced to a $200 fine. On July 6, 2018, in Blind River, he was convicted of possession of a Scheduled Substance for the purpose of trafficking and sentenced to 365 days and 12 months of probation and a s. 109 order; for possession of property obtained by crime over $5,000, he was sentenced to 30 days and 12 months of probation served concurrent and for weapons dangerous, he was sentenced to 30 days and 12 months of probation served concurrent. On July 6, 2018, in Thunder Bay, he was convicted of possession of a Scheduled Substance and sentenced to 276 days of custody consecutive and 12 months’ probation in addition to 88 days of pre-sentence custody and for fail to comply, he received 30 days consecutive and 12 months’ probation.

[9] Counsel for Mr. Duffy filed the lockdown records from the Toronto South Detention Centre where Mr. Duffy was incarcerated from his arrest on June 3, 2021, until August 12, 2021, and during the period from January 18, 2023 until February 3, 2023 and from September 28, 2023 until February 1, 2024. The total number of lockdown days for those periods of time was 84.

[10] Mr. Moriah also submitted a number of letters in support of Mr. Duffy. These include letters of employment and letters from friends and family. In a letter dated January 16, 2023, from Tara Muldoon, Founder/Director of the Forgiveness Project, she outlined that the project runs educational, art and team building activities geared towards those under the age of 35 who are in custody. Mr. Duffy was actively involved in the program since 2019 and graduated from the creative writing series called Look Both Ways with the Ontario College of Art and Design University. He also completed the music production series and numerous workshops based on conflict management and forgiveness. He was also working with the project on post-release support and goal setting. They offered him a part-time job with the team to do public speaking.

[11] Correspondence from Lobster Burger Bar dated December 26, 2023 stated that Mr. Duffy worked at the restaurant as a line cook and then a supervisor from April 14, 2022 until November 17, 2022. He was punctual, displayed active efforts to exceed expectations, worked hard to ensure orders were made correctly and “has potential offers of re-employment at Lobster Burger Bar in the future.” Mr. Duffy’s mother, Catherine Duffy, wrote a letter describing how Mr. Duffy has assisted her through her illnesses which required multiple hospital admissions and care following six surgeries. He has also been of great assistance with his sixteen-year-old brother Kayden and has assisted in his upbringing. Kayden Duffy wrote a letter saying that he has Asperger’s syndrome and that Mr. Duffy has been of great assistance to him.

[12] Mr. Duffy’s grandfather, Robert Duffy, wrote a letter of support to say that his grandson “had seen some horrible things in his life that has led up to the life he lives now.” He described that Mr. Duffy was exposed to a poverty-stricken area where drugs, homelessness and shootings are quite common. He was present at the Danzig shooting where 25 people were shot and two were killed. He has personally witnessed two of his friends get shot and a young girl pleading for help as she died. Robert Duffy says that his grandson is respectful and kind and helps others in the community.

[13] Bob Duffy, Treyshawn Duffy’s uncle, wrote to say, “Trey is strong minded, kind, funny, helpful, selfless, humble and a great cook, being a chef.” He said that his nephew helped him through a very difficult time when he was incarcerated and had mental health issues. Mr. Duffy’s friend, Samuel Kavluk, wrote to say that Mr. Duffy had supported him during a difficult time and helped him get a job at the Lobster Burger Bar. He described that at work, Mr. Duffy has become a supervisor, he is “loved and respected by the entire staff and became a trusted employee due to his punctuality, hard work, commitment and humble approach in the workplace.” Finally, Melissa Baverstock is a family friend who wrote that Mr. Duffy is a kind person who has treated her son like a little brother and included him in their family.

[14] The pre-sentence report dated September 8, 2023 was filed as an exhibit at the hearing and its contents are discussed below.

[15] At the sentencing hearing, Mr. Duffy apologized to the court, to his family and to the community. He said, “he wants to put these things in the past.”

Positions of the Parties

The Crown Position

[16] The Crown submits that an appropriate sentence in this case is a global sentence of 4.5 years less credit for pre-sentence custody. Mr. Quayat acknowledges that Mr. Duffy was on a restrictive bail and he should also receive credit for that. Crown counsel also seeks collateral orders including a s. 109 order prohibiting Mr. Duffy from possessing weapons for life, an order that a sample of his DNA be taken and an order of forfeiture of the $890 cash and the guns and ammunition.

[17] Crown counsel relies on the case of R. v. Denton Smith, 2023 ONCA 620 where he submits the facts are very similar to the case at bar. Mr. Smith was convicted of possession of a prohibited firearm with readily accessible ammunition, breach of a weapons prohibition order, possession of a firearm with a serial number removed, pointing a firearm and possession of cocaine for the purpose of trafficking. He was charged with these offences after police became aware of an incident that occurred earlier when surveillance cameras captured him chasing a woman in a car and pointing a gun at the woman. Police executed a search warrant one month later at his house and found a .22 calibre handgun with the serial number removed and ammunition next to it as well as $7,000 cash and 137 grams of cocaine along with other tools of the drug trade.

[18] Mr. Smith had pleaded guilty. He had a recent criminal record for violence and was on a weapons prohibition order. The trial judge sentenced Mr. Smith to two years less a day served as a conditional sentence for possession of a prohibited weapon, a concurrent 18-month conditional sentence for the possession of cocaine for the purpose of trafficking offence which was in addition to time served plus one day (126 days of presentence custody) on the weapons prohibition order breach and six months’ conditional sentence concurrent on the possession of a firearm with the serial number removed. The court credited Mr. Smith with six months of credit in accordance with R. v. Downes (2006), 37 C.R. (6th) 46 (Ont. C.A) for the point firearm offence.

[19] The Court of Appeal found that the sentencing judge made errors in principle regarding the view she took on the seriousness of the firearms offences involved and her mischaracterization that the facts did not support a “true crime” characterization. The court held that the facts established the elements of a true crime, and that possession of a loaded handgun will normally attract a penitentiary term of imprisonment unless there are strong mitigating factors. In this case, there were not strong mitigating factors. Further, sentencing the respondent to “Downes” credit is an error. The court held that a proper total sentence is 4.5 years before any credits.

[20] Mr. Quayat also commented on R. v. Pitt, 2023 ONSC 5470 and R. v. Findley, 2023 ONSC 1273 that the range of sentence for guns, drugs and having criminal antecedents should be between 4 and 4.5 years. He says that the plea of guilty in the case at bar was not an early plea and that it followed a Garofoli hearing. The resolution was made close to the trial dates. Crown counsel acknowledged the number of lockdowns while Mr. Duffy was incarcerated due to staff shortages and agrees that Mr. Duffy should receive enhanced credit for time in pre-sentence custody in accordance with R. v. Duncan, 2016 ONCA 754. Mr. Quayat also agrees that credit for restrictive bail conditions, in accordance with R. v. Downes should be given. However, the time spent on a restrictive bail was not perfect as there was an alleged breach which should temper the credit.

[21] In summary, Crown counsel says that as of the date of the sentencing hearing, Mr. Duffy was incarcerated for 221 days during which there were 84 days of lockdowns. For 137 days, there were no lockdowns and the credit should be at 1.5:1 which is credit of 205.5 or 206 days of no lockdowns. For the 84 days of lockdown, he should receive credit at 2:1 which is 168 days. The total credit for pre-sentence custody is 374 days. Crown counsel does not oppose some credit for restrictive bail conditions.

The Defence Position

[22] Counsel for Mr. Duffy pointed out to the court that Mr. Duffy’s stepbrother, his mother, brother and uncle were present in court and that friends had joined on a Zoom link, all demonstrating their support for Mr. Duffy. Mr. Moriah agrees with the Crown that the appropriate range of sentence is 4 to 4.5 years in custody. However, as a starting point, he submits that in this case, the sentence should be 4 years. He also asks that the court consider the pre-sentence custody with lockdowns to be approximately six months and to consider the 137 days at 1.5:1. With this credit for pre-sentence custody, he would have a balance of 3.5 years to serve.

[23] Mr. Moriah then goes on to explain that Mr. Duffy was arrested on these charges on June 2, 2021 and released on a strict bail from August 12, 2021 until January 31, 2022. He was on house arrest with two named sureties, was required to live with the sureties and that he had to be in the direct company of one of his sureties at all times. On January 31, 2022, counsel obtained a variation of the house arrest condition which allowed him to return to his old residence at 4100 Lawrence Avenue East as his mother and brother were having health issues. On May 5, 2022, his bail was varied to allow him to work at the Lobster Burger bar. He had to remain in his residence except to travel to and from his work there. Counsel says that there was a breach allegation in January of 2023 when Mr. Duffy went to his mother’s residence without a surety, and he was arrested and placed in custody. He was later released on a house arrest bail with no exceptions and electronic monitoring. Then he surrendered to police on September 28, 2023 for a breach allegation and has been in custody since. Mr. Moriah seeks credit of 6 months in accordance with R. v. Downes to reflect the various times of house arrest bail.

[24] The defence takes the position that an appropriate sentence, therefore, is a global sentence of 4 years with credit for pre-sentence custody. Mr. Moriah says that based on a 35-month sentence of imprisonment less 6 months for Downes credit, he would have 29 months left to serve. This is an appropriate sentence in light of the principles of proportionality, denunciation and deterrence as well as rehabilitation. In particular, he highlights that Mr. Duffy is a man in his twenties, that he can be employed, that he has supports in the community, that he is of mixed heritage but that his Black racial background should be taken into account. Mr. Moriah submits that he has accepted responsibility for his conduct, that the letters of support submitted to the court show that he is a loved son and brother, a valued employee and friend. That is also demonstrated by the presence of six people in the courtroom.

[25] Counsel for Mr. Duffy argues that the mitigating circumstances are the plea of guilty which is an expression of remorse, that at a time post pandemic, this is particularly relevant in saving court resources, that he has a supportive family and friends and prospects for rehabilitation and that he is a youthful offender who has turned things around in his life. Mr. Moriah submits that with appropriate deductions for pre-sentence custody and credit in accordance with R. v. Downes, an appropriate sentence is one of 29 months left to be served. He does not oppose the ancillary orders sought by the Crown.

Analysis and the Law

[26] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section which include denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[27] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity reflected in s. 718.2(b). Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh otherwise known as the principle of totality reflected in s. 718.2(c). The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders. These are known as the principles of restraint reflected in ss. 718.2(d) and (e).

[28] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs. The sentencing decisions for possession for the purpose of trafficking in cocaine suggest a range of sentence between six months to two years less a day depending upon the circumstances of the offence and the offender: see R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.), at para.15. The quantity of the drugs involved, the nature of the transactions and the criminal antecedents of the offender are all relevant considerations. Where the possession of drugs for the purpose of trafficking is a commercial undertaking, it is most often imposed on a consecutive basis to the firearm possession offences.

[29] As for jurisprudence regarding possession of a loaded prohibited firearm, the courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers (2005), 201 O.A.C. 138, at para. 78. The prevalence of gun violence in our community must be stopped through exemplary sentences. Possession of an illegal handgun is a serious offence warranting a severe penalty: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at paras. 108-9, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. The starting point for sentences for offenders at the “true crime” range is three years. For people “whose conduct is less serious and pose less danger”, three years may be disproportionate but “not grossly so”: Nur at para. 82. Where there is no evidence of rehabilitation or that the offender has taken steps to rehabilitate himself, then the primary focus of sentencing should be denunciation and deterrence: see R. v. J.G. [2005] O.J. No. 4599 (Ont. S.C.), at paras. 27 and 45. There is an epidemic of firearm-related crime in the Greater Toronto area and sentences for illegal possession of firearms should be increased: see R. v. Mesinele, 2023 ONCJ 28, at para. 5, 30, R. v. Delchev, 2014 ONCA 448, 323 O.A.C., at paras. 20-21.

[30] Counsel have cited cases where the sentencing is for offences for weapons convictions and drug offences. As noted in the case of R. v. Denton Smith, relied upon by Crown counsel, the appropriate sentence for convictions of possession of a prohibited firearm with readily accessible ammunition, breach of a weapons prohibition order, possession of a firearm with the serial number removed, pointing a firearm and possession of cocaine for the purpose of trafficking was a global sentence of 4.5 years. However, unlike the case at bar, Mr. Smith had a record for violence and the convictions upon which he was being sentenced included pointing a firearm.

[31] In R. v. Pitt, the offender, who was 19 years old at the time and had no criminal record, was sentenced to three years and 165 days of imprisonment for possession of a loaded restricted firearm and possession of cocaine for the purpose of trafficking. Mr. Pitt did not discharge his firearm but did carry it with him for several hours in public places, while engaged in drug dealings in the company of two females. The court cited the case of R. v. Wong, 2012 ONCA 767, at para. 11 where the Court of Appeal held that a global sentence of three years was appropriate and wrote: “The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.”

[32] In R. v. Findley, the offender pleaded guilty to possession of a prohibited firearm, a Smith and Wesson, .40 caliber handgun, knowing that he did not hold a licence, possession of a prohibited firearm knowing that its serial number had been removed, possession of a firearm (12-gauge shotgun) knowing that he did not hold a licence and possession of cocaine for the purpose of trafficking. He was 37 years old, was born in Jamaica, was a permanent resident in Canada, had a youth record for break and enter, fail to comply, possession of a controlled substance and attempting to obstruct justice. He had an adult record for possession of a controlled substance. He worked full time, had three daughters and supported them financially. He was arrested at his residence and charged with the drug and firearms offences. The court held that the appropriate sentence was three years and 10 months. With credit for pre-trial custody, he had a sentence of 1,184 days to serve.

[33] It is the lethal combination of possession of drugs for the purpose of trafficking and possession of prohibited firearms and ammunition particularly where the offender has a relevant criminal record that are factors that must be considered.

Decision

[34] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455, at para. 44. The sentencing process is an individualized one, but the court must remain mindful of the sentencing ranges discussed in the jurisprudence.

[35] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Duffy.

[36] Mr. Duffy is 28 years of age and was born on April 7, 1995 in East York, Ontario. His mother was 20 years old when he was born. His father has kept in communication with him over the years. He has two other siblings from a different relationship.

[37] Mr. Duffy and his mother moved around as his mother had difficulty with financial support. When she was unable to provide support, he moved in to live with his grandparents in the Cornwall area. His mother worked odd jobs and then met his stepfather. Mr. Duffy did not take to him at first but eventually they developed a good relationship. His mother had two other children. They did not suffer abuse or neglect, but he was removed from the home by the Children’s Aid Society for one month. The sisters remained in care and one was placed for adoption.

[38] When he was 12 years old, Mr. Duffy and his mother moved to their current residence in Kingston Road and the Galloway corridor. The community was known for violence and criminal activities. He denied being involved with the gang culture, but he was involved in incidents of selling drugs and theft and break and enters. Mr. Duffy attended elementary school at St. Margaret Public School and did well academically. He then attended Vernier Catholic School where he experienced difficulties in grade ten. He could not concentrate and dropped out of school, admitting that he was hanging around with the wrong crowd.

[39] In 2018, while he was incarcerated in Thunder Bay, he attempted to obtain his high school diploma but was not able to do so. He worked sporadically with his stepfather in construction when he was 19 years old. He was interested in culinary arts.

[40] Mr. Duffy has had a close relationship with his family which is demonstrated by their presence in court and the letters they wrote on his behalf. Mr. Duffy has a brother who is autistic and Mr. Duffy has spent time caring for him and he has been a support to his mother who has medical issues. His strict bail was varied to allow him to assist his mother and brother.

[41] Mr. Duffy did not finish high school but completed some courses while in detention. During the time spent on bail, he has not been able to complete courses but has focused on making money. He has had gainful employment at Lobster Burger Bar off and on for 3 to 4 hours. He is a helpful and useful employee. When he completes his sentence, he has an interest in pursuing the culinary arts. The probation officer spoke with the former manager at the restaurant, and she said that he had good working ethics, and she will not hesitate to offer employment to him if he is released to the community. He is also interested in personal training. He would like to combine the two interests with preparing meal plans that are nutritious.

[42] As the pre-sentence report indicated, he has used marijuana but denies taking other substances. The probation officer described Mr. Duffy as having participated in a “forthright and respectful manner throughout the interview sessions.” She said that he expressed a sense of remorse and accepted responsibility for his actions, and he expressed regret.

[43] Cases regarding the appropriate range of sentence for possession of cocaine for the purpose of trafficking emphasize denunciation and deterrence. Cocaine is a highly addictive drug. In Woolcock, the Court of Appeal for Ontario observed that sentences for trafficking in dangerous substances must emphasize that general deterrence and denunciation are of paramount concern. Each case must be considered in light of its circumstances and the aggravating and mitigating factors. The accused’s prospects for rehabilitation as well as the other sentencing objectives must also be considered. The amount of the drugs involved (here there were 258 grams of cocaine), the scale of the operation, and the personal circumstances of the offender are all relevant considerations.

[44] With reference to gun offences, the jurisprudence also emphasizes that deterrence and denunciation are of paramount concern.

[45] In the case at bar, there are many factors in mitigation including that Mr. Duffy pleaded guilty to the charges and has demonstrated remorse. He is taking responsibility for his actions. He has saved valuable court resources at a time when resources are scarce because of the aftermath of the COVID-19 pandemic. Crown counsel says that the sentence imposed should be one that is within a range discussed by the Ontario Court of Appeal in R. v. Denton Smith. In light of the circumstances in the case at bar, I conclude that the two cases may be distinguished in some important respects. I find that the pre-sentence report demonstrates that Mr. Duffy has strong family support as shown in letters and in the presence of family at court, that he has made some efforts at rehabilitation. While he has not taken steps to complete his education, he has pursued employment and has also taken on additional responsibilities with his mother and brother. There was no violence or evidence of guns when the warrant was executed in the apartment. There was no evidence that Mr. Duffy was possessing drugs for the purpose of trafficking to support his own drug habit such as indicia of personal use in the apartment. The pre-sentence report speaks only of some marijuana use.

[46] The aggravating factors include the nature of the offences, the type of drug involved, and the effect of these types of offences on the public. It is obvious that Mr. Duffy was in possession of cocaine in substantial amounts for the purpose of earning a profit. The further aggravating factor is that he has a criminal record for a possession for the purpose of trafficking offence in 2018 and was in possession of a weapon in 2018. He was also sentenced on the same date to possession of a scheduled substance and fail to comply. He was in possession of a firearm with ammunition in the trunk of his car.

[47] The real issue in this case is whether Mr. Duffy should receive a global sentence of 4.5 years which the Crown submits or whether he should receive a sentence of 4 years which defence counsel submits. In summary, a sentence for these offences must emphasize denunciation and deterrence. The sentence must also recognize that Mr. Duffy entered a guilty plea and has demonstrated remorse. He has strong family support and prospects for employment.

[48] There is a further factor that should be considered in this case. In the case of R. v. Morris, 2021 ONCA 680, the Ontario Court of Appeal discussed the effects of anti-Black racism on the offender and how the court should approach the issue and apply the principles in imposing sentence. From the pre-sentence report prepared by the probation officer, I am satisfied that Mr. Duffy experienced a difficult childhood where he was placed in the care of the Children’s Aid Society and moved around a great deal with his mother because she was having difficulty supporting the family. According to the evidence filed, he was exposed to poverty, drugs, homelessness, violence and shootings in the community. I accept that these life experiences in his childhood may have had an impact upon him and that these factors should be taken into account in mitigation on sentence.

Credit for Pre-Sentence Conditions and Judicial Interim Release

[49] In Duncan, the Court of Appeal for Ontario recognized that harsh pre-sentence conditions can provide mitigation and enhanced credit in fashioning a suitable sentence. In R. v. Marshall, 2021 ONCA 344, at paras. 52 and 53, the Court of Appeal for Ontario clarified that Duncan credit is available for “particularly punitive pretrial incarceration conditions” as a mitigating factor to be taken into account when imposing sentence. However, the court cautioned that, while not “necessarily inappropriate”, quantifying Duncan credit may be unwise as it allows for Duncan credit, in and of itself, to overwhelm an appropriate sentence. Rather, such conditions have been considered as part of the mitigating factors in the sentencing process. However, there are cases where quantifying the credit has been done: see R. v. Kongolo, 2022 ONSC 3891, at para. 82.

[50] Crown counsel has conceded that Mr. Duffy should be credited at 2:1 for the time spent in pre-sentence custody when there were lockdowns in accordance with Duncan and when there were no lockdowns at 1.5:1 in accordance with Summers. I agree. The courts have repeatedly commented on the impact of harsh conditions of pre-sentence custody, and the concern about the number of lockdown days and the conditions of incarceration: see R. v. Persad, 2020 ONSC 188, at paras. 27-28; R. v. Spicher, 2020 ONCJ 340, at paras. 59-68; R. v. Jama et al., 2021 ONSC 4871, at paras. 51, 53, 55. For more recent cases on the effects of harsh conditions in pre-sentence custody see R. v. Starostin, 2023 ONSC 3677, at paras. 52 and 53; R. v. Kongolo, at paras. 82 and 83; R. v. Pathmanathan, 2023 ONCJ 142, at para. 129; R. v. Bahamonde, 2022 ONSC 916, at para. 80; R. v. Doyle, 2022 ONSC 2489, at paras. 53 – 63; R. v. Haj, 2022 ONSC 1457, at paras. 8-9; and R. v. Owusu-Boamah, 2023 ONSC 496, at para. 42.

[51] With respect to Downes credit, this sentence should also recognize that Mr. Duffy has been released in the community with extremely restrictive terms that affected his liberty. Mr. Duffy was on house arrest and at various times on electronic monitoring. The terms of release should also be considered in fashioning the overall sentence and reducing the sentence accordingly. However, I also consider that Mr. Duffy has not been in total compliance with the terms of release during the periods of house arrest. Rather than attribute a number to the Downes credit, I exercise my discretion and consider the time spent on restrictive bail conditions as a factor in determining the overall sentence for these offences.

Result

[52] Mr. Duffy shall be sentenced as follows: for the offence of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the CDSA, he shall be sentenced to one year of imprisonment; for the offence of possession of a loaded restricted weapon contrary to s. 95(1) of the Code, he shall be sentenced to three years to be served consecutively to the possession of cocaine for the purpose of trafficking offence; for the offence of possession of an overcapacity magazine while prohibited from doing so under s. 109(1) contrary to s. 117.01(1), he shall be sentenced to one year to be served consecutively to the sentence for possession of a loaded restricted weapon but concurrently to the possession of cocaine for the purpose of trafficking. The global sentence for these offences shall be four years.

[53] Mr. Duffy was arrested on June 3, 2021, and was incarcerated from his arrest until August 12, 2021 (71 days) when he was released on a strict bail which continued until January 31, 2022. He was on house arrest with two named sureties, was required to live with them and had to be in the direct company of one of his sureties. On January 31, 2022, his bail was varied to allow him to return to his old residence to assist his mother and brother. On May 5, 2022, his bail was varied to allow him to work. He had to remain in his residence except to travel to and from work. He was charged with a breach and arrested on January 18, 2023 and remained in custody until February 3, 2023 (17 days) when he went to his mother’s residence without a surety. He was released on house arrest with no exceptions and with electronic monitoring. On September 28, 2023, he surrendered to police for another breach allegation. He remained in custody until February 1, 2024 (the date of the lockdown report) (127 days). The total number of days to that point was 215 days. He has remained in custody from February 2, 2024 until today’s date which is an additional 36 days. Therefore, the total number of days in custody is 251 days.

[54] Mr. Duffy is credited with time spent in custody on these charges as follows: for the 167 days when there were no lockdowns, on a 1.5:1 basis in accordance with R. v. Summers, this would equal 250.5 or 251 days of credit. With respect to Duncan credit, in light of the lockdown records filed and the impact of harsh conditions during Mr. Duffy’s incarceration, he shall be credited for those 84 days at 2:1 which would equal 168 days. This would be a total of 419 days.

[55] As I mention above, the credit for restrictive bail conditions is already taken into account in formulating the overall sentence. The total credit given is 419 days against the four-year sentence. The remaining sentence left to be served is 1,041 days.

[56] There will be a s. 109 order for life. I also order that Mr. Duffy provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code as this is a “secondary designated offence” under this provision.

I further order that the guns, ammunition and money found in Mr. Duffy’ residence and car be forfeited to the Crown.

Himel J. Released: March 8, 2024