R v. Beauparlant, 2024 ONSC 1655

Court File and Parties

COURT FILE NO.: CR-22-624 DATE: 2024-06-17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Mountjoy and J. Ostapiw, for the Crown

- and -

CADENCE BEAUPARLANT A. Craig, Counsel for Cadence Beauparlant

HEARD: February 22, 2024

Reasons for Sentence

SKARICA, J: (Orally)

1All right, in the matter of R. v. Cadence Beauparlant, Reasons for Sentence.

Overview

2The accused, Cadence Beauparlant and the co-accused Devante Skye-Davis were originally charged with manslaughter and the illegal possession of a firearm contrary to s. 95(2) of the Criminal Code of Canada. The co-accused has plead guilty to the manslaughter charge involving the deceased, Myah Larmond. On February 12th, 2024, Cadence Beauparlant plead guilty to the possession of firearm charge, then was remanded to February 20th, and then February 22nd, 2024, to be sentenced.

Facts

3On July 15, 2020 Devante Skye-Davis resided at 16 St. Matthews Avenue in Hamilton. He occupied the main floor and basement of the residence. Skye-Davis, his girlfriend, 17-year-old Myah Larmond, and two other individuals attended a small party at 16 St. Matthews in the Skye-Davis apartment. The accused attended the party, bringing with him a loaded handgun. All parties were in the kitchen socializing and drinking alcohol and doing drugs. Mr. Beauparlant produced his firearm and the firearm was passed around. Videos were taken of these events. Faces are not depicted on the videos; however Skye-Davis was identified because of a tattoo on his hand. The accused was identified in the videos due to his wearing a distinctive-looking large gold and diamond ring, which was later recovered by the police at the accused’s home during an unrelated execution of a CDSA search warrant. Those events will be described subsequently.

4At about 3:55 a.m. Skye-Davis was standing by the kitchen sink handling the firearm. While Skye-Davis was handling the firearm it discharged and the bullet, unfortunately, struck Myah Larmond in the head. Ms. Larmond collapsed on the floor and ultimately died from this head injury. The accused took the firearm and fled the scene. Skye-Davis remained and phoned 911 for help.

5At 4:00 a.m. officers responded to the scene. Ms. Larmond was still alive; however she was pronounced dead at the Hamilton General Hospital at 9:30 a.m. after an attempted surgical intervention.

6Dr. Hickey, a forensic pathologist, determined the cause of death to be a perforating gunshot wound to the head.

7Cell phones were seized at the scene. Photos obtained from the cell phone belonging to the accused show the accused wearing the distinctive gold and diamond ring. Cell phone evidence also shows the accused handling a firearm while wearing that distinctive gold and diamond ring. A yellow Arizona iced tea can was located at the scene near the accused cell phones. DNA was collected from the Arizona can. DNA analysis establishes that it is the accused’s DNA that is on the Arizona iced tea can. The accused was arrested for this offence on August 12th, 2021, approximately one year later.

Circumstances of the Offence

8The facts establish that the accused brought a loaded handgun to a party where alcohol and drugs were being consumed. The handgun was passed around, which was a reckless and foolish act participated in by the accused and Skye-Davis. Regrettably, the handgun discharged and killed Myah Larmond who was only 17 at the time.

Circumstances of the Offender

9The accused at the time of the offence, July 15, 2020, had no criminal record. However, as indicated at Tab 8 of Exhibit 1, the accused in August and September of 2022 received numerous sentences for drug trafficking and related offences and is currently serving a penitentiary term pursuant to those sentences. I believe the following detailed chronology of events would assist in better understanding what an appropriate sentence should be.

10Chronology as I have determined it to be is as follows:

11July 15, 2020, the accused attends a party at a semi-detached townhouse at 16 St. Matthews. He attends the residence with a fully loaded handgun, which is passed around at a party where socializing, drinking alcohol, and drug use occurs. The co-accused, Skye-Davis, handled the firearm that discharged at 3:55 a.m. and the bullet struck Myah Larmond in the head. The accused fled with his gun. Ms. Larmond was still alive and paramedics, arriving at 4:00 a.m., tried to save her. Attempted surgical intervention occurred at the Hamilton General Hospital; subsequently, then Ms. Larmond, just 17 years of age, was declared dead at 9:30 a.m. that day. See Exhibit 1, Agreed Statement of Facts.

12June 12, 2019 to July 2020: The accused was engaged in drug trafficking before the shooting and presumably the handgun was used to facilitate this illegal activity. See Exhibit 2, Crown Materials - Sentencing, Tab 17.

13July 15, 2020 to November 25, 2020: The accused continues to engage in drug trafficking and is arrested on November 25, 2020 in the County of Brant for drug trafficking, primarily for 38.9 grams of fentanyl plus other drugs. They were hydromorphone and oxycodone. See R. v. Cadence Beauparlant, 2022 ONSC 1565 and 2022 ONSC 4686 and Exhibit 2, Crown Materials - Sentencing, Tab 8.

14November 25, 2020 to January 29, 2021: The accused is released on bail on the Brantford charges. The conditions included remain in his residence, not possess drugs, and not possess more than one cell phone. The Hamilton Police executed a search warrant on January 29, 2021, at 226 Prospect Avenue South in Hamilton. The accused was arrested and was in possession of an iPhone and a Motorola cell phone, that is two cell phones, plus cocaine and codeine pills. In the accused’s room the police seized $22,205 in cash, a large knife, ballistics vest, ammunition, and drug paraphernalia. See Exhibit 2, Tab 9, page 9.

15July 2020 to January 21, 2021: The accused experimented with drugs when he was younger and used marijuana in his leisure time. He has not had any counselling or taken any program for substance abuse or use. The accused indicated the Brantford offences were primarily for financial gain. See Crown Materials - Sentence, Tab 7, pages 5, 6 of the pre-sentence report prepared for the Brantford charges.

16Regarding the Hamilton charges, the accused told the Joyceville Assessment Unit that he was still drug trafficking while on release for the Brantford charges and that the police caught him walking away from his residence while carrying drugs to another location. See Exhibit 2, Tab 10, at page 6.

17July 2020 to January 21, 2021, regarding drug use and drug trafficking generally, the accused told the Joyceville Assessment Unit on or about July 10th, 2023 the following, and I am quoting from page 12 at Tab 10:

Mr. Beauparlant stated he started regularly drinking around the age of 14 when attending social situations. By the age of 16 had progressed into trying other substances with an emphasis on Xanax and Percocet. Mr. Beauparlant did not develop a full addiction to any substance and would engage in heavy usage for a week or two while partying in his teenage years but would be able to wean himself off. Mr. Beauparlant was able to determine when his usage was verging out of control and explained he had quit several times cold turkey when he felt himself losing control of his situation. Mr. Beauparlant’s crimes revolve around crime for gain and status. Mr. Beauparlant enjoyed the easy money after having worked with his father several weekends doing drywalling and preferred the easy and fast-paced life of trafficking in substances. Mr. Beauparlant enjoyed having ready access to substance and making significant income at a young age. Mr. Beauparlant needs to separate himself from his negative associates and focus on coming up with a life goal that are attainable and pro-social. It is notes that there are two known outstanding charges for manslaughter, use of firearms, and possession of prohibited/restricted firearm with ammunition (Now that’s this charge). A trial date of February 12th, 2023 has been set for these charges. The case management team acknowledges that the outcome of these outstanding charges could result in the re-assessment of the dynamic risk factors and the overall correctional plan. Mr. Beauparlant is serving a three-year, 11-month, 11-day sentence and at this point he appears to be adjusting adequately as he has been an active participant in the intake case management process and employment. Mr. Beauparlant has elected to waive his legislated full parole review that was set for November 2023. He has signed the necessary form to be forwarded to the Parole Board of Canada. It was explained to him that his release goals may not be realistic given the need to demonstrate gains and the logistics of the parole hearing process. He is encouraged to discuss this issue with his case management team at his receiving institution.

18On August 12, 2021, the accused was arrested on manslaughter and s. 95 possession firearm charges, that’s the charge before this court. See Exhibit 1, Agreed Statement of Facts, page 1.

19August 2nd, 2022: Justice Broad sentenced the accused to a global sentence of five years for conviction for drug trafficking, fentanyl, hydromorphone, oxycodone, possession of prohibited weapon and proceeds of crime. After deducting 825 days for pre-trial custody credit, the accused was left with 2 years and 270 days left to serve. The Crown attending this sentence was Tara Mimnagh. See Crown Materials - Sentence, Tab 8 and R. v. Beauparlant, 2022 ONSC 4686 at pages 1, 15, 16, and in particular, paragraphs 64 through 66.

20It should be noted that the sentencing judge observed that given the accused youth with a date of birth of 2001, January 5, and supportive family, that counted towards his rehabilitative potential. See Beauparlant at paragraph 61.

21September 15, 2022: On the Hamilton drug trafficking charges the accused plead guilty to possession of cocaine for the purposes of trafficking and failure to comply. The Crown asked for four years on the drug trafficking charge with the fail to comply to be served concurrent. The Crown was a T. Mimnagh who I assume is the same Crown who attended the previous Brantford sentence. The learned judge sentenced the accused to four years on the drug trafficking charge and 66 days for the fail to comply to be served concurrently. There appears to be no order that this sentence was to be served either concurrent or consecutive to the Brantford sentence. See Exhibit 2, R. v. Beauparlant, Tab 9 at pages 8 through 12.

22A careful reading of the proceedings of the guilty plea before Justice Sweeny reveal why there was no order that the Hamilton sentence was to be served consecutive to the Brantford sentence. Justice Broad sentenced the accused on the Brantford charges on August 2nd, 2022. See Tab 8 at pages 15 through 16. That’s Exhibit 2, Tab 8, at pages 15 through 16. Forty-four days later, September 15, 2022, Justice Sweeny sentenced the accused to the Hamilton charges. Crown Counsel, Ms. Mimnagh, told Justice Sweeny at page two of the transcript that the accused had no criminal record. Ms. Mimnagh, who attended the Brantford sentence should have known this was no longer true. At page 5 of the transcript, defence counsel submitted that the accused “has no record.” No mention was made by either counsel of the sentence imposed by Justice Broad in Brantford 44 days earlier on August 2nd, 2022, despite the fact that the Crown Counsel, Ms. Mimnagh, was there. Accordingly, Justice Sweeny sentenced the accused to four years based on the fact that the accused was 21 years old and “he has no record.” Justice Sweeny was aware the Hamilton charges were committed while he was on a release for a similar offence but was not told about the status of the Brantford charges. Accordingly, Justice Sweeny sentenced the accused for four years minus a small credit for pre-sentence custody. There was no reference to either concurrent or consecutive sentences as the Brantford sentence was not mentioned and Justice Sweeny was not informed about it. See transcript pages 8 to 12 at Exhibit 2, Tab 9.

23Now, going back all the way to December 17th, 1953, which is a case as almost as old as me, R. v. Duguid, 1953 OJ No 485, the Ontario Court of Appeal indicated at paragraph 8:

We think it should be born in mind that where a man is guilty of several offences, that the usual rule is not that the sentences should be consecutive. The court has power to make sentences consecutive, but unless the court exercises that power, sentences imposed would be served concurrently.

24See also more recently, R. v. Rees, 2018 NLCA 64 at paragraphs 13 and 14, and Ewing v. Mission Institution, 1994 BCJ No 1989 at paragraph four.

25September 15th, 2022, moving 70 years forward, accordingly, Justice Sweeny’s sentence of 4 years is deemed by longstanding caselaw of some 70 years to be a sentence of 4 years minus 66 days pre-trial custody credit concurrent to the Brantford sentence, which had at that time approximately 2 years and 230 days left to serve. Accordingly, the Correctional Services of Canada indicated that the remaining sentence for the accused was 3 years, 11 months, 11 days commencing August 2nd, 2022. The sentence management schedule is currently as follows as outlined at Tab 10. It indicates the sentence 3 years, 11 months, 11 days. It indicates sentence commencement, which is August 2nd, 2022. It further indicates that the warrant expiry date is July 12th, 2026. The eligible parole date is November 25, 2023, and the statutory release date is March 19th, 2025.

26February 22nd, 2024: “That’s today,” this is the accused sentencing date on the most recent charge of possessing a firearm. Given the case law as outlined, the sentence imposed today will be considered, and I will order it to be, consecutive to any other sentences being served. See section 718.3(4) Criminal Code.

Impact on the Victim and/or Community

27The victim, Myah Larmond, a female only 17 years old is now deceased due to the reckless actions of Skye-Davis and the accused. This is yet another distressing gun crime which contributes to fear and alarm in the Hamilton community.

28The victim impact statements of the deceased’s relatives and friends indicate they are all highly traumatized by this senseless and reckless crime. See Exhibit 2, Tab 1 through 6.

Positions of the Crown and Defence

29The Crown won’t suggest the range of sentence but is requesting a sentence of five years consecutive to the jail terms currently being served. The defence is requesting a sentencing of 18 months to 2 years based on the totality principle.

Mitigating and Aggravating Factors

30Section 718.2(a) Criminal Code requires a court to take into consideration any mitigating and/or aggravating factors.

Mitigating Factors

311. The accused at the time of the gun offence had no criminal record.

322. On the evidence before me, neither Skye-Davis or the accused had any intent to harm the victim, Myah Larmond.

333. The accused entered a plea of guilty to the within charge.

344. The accused is young, having a date of birth of January 5, 2001, and is currently 23 years of age.

Aggravating Factors

351. The accused was in possession of a dangerous firearm with no legal right or licence to possess it. See Exhibit 2, Tabs 13 and 14.

362. The accused in bringing a loaded firearm to a party and permitting it to be passed around like a plaything amongst partygoers who were imbibing in drugs and alcohol showed a reckless disregard for the safety of others around him, including the victim, Myah Larmond.

373. Ms. Larmond was an innocent victim of these crimes, was only 17 years old, and died as a result of the accused’s and co-accused’s reckless actions. These are aggravating factors pursuant to section 718.2(a)(ii.1), and 718.2(a)(iii.1) Criminal Code.

384. The Court of Appeal has indicated that gun crimes are a serious threat to our society and the sentences should reflect the seriousness of crimes where firearms are involved.

395. The firearm was discharged in a residence where other innocent bystanders could have been shot, killed, or injured. See R. v. Chambers, 2012 ONSC 817 at paragraph 18. Also, see Exhibit 2, Tab 16, photos of the residence and surrounding neighbourhood.

406. The residence was not a single-family residence. 16 St. Matthews Avenue was a semi-detached townhouse in an urban area. Accordingly, other residents in the townhouse unit and possibly surrounding neighbours were also in peril by the accused’s reckless actions. See Chambers at paragraph 18 and the Crown Exhibit 2, Tab 16, Photos.

417. Once Ms. Larmond was shot, the accused fled the scene with his firearm leaving behind a seriously injured young woman. Accordingly, the accused made no effort to assist a vulnerable young teenage girl who was seriously injured and he fled the scene, leaving her behind to her eventual death without rendering any assistance.

428. The accused continued to ply his drug trade as if nothing had happened. I infer that previous to this offence the firearm was kept at the accused’s side as is commonly practiced by drug traffickers as a device for protection in facilitating his illegal drug trafficking offences. The courts refer to it as a tool of the trade.

439. The accused, by seizing the gun and fleeing, was able to keep a valuable piece of evidence away from the police. The accused was successful in this attempt as the gun has never been recovered.

Case Law – Principles of Sentence

44Regarding totality, Lacelle, J. in R. v. Armstrong, 2019 ONSC 4059 summarizes the totality principle as follows at paragraphs 13 through 17:

13Section 718.2(c) of the Code provides that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.” This expression of the principle of totality is an important component of the fundamental principle of proportionality.

45Basically, the case refers to the Johnson case and a few others. I will not refer to the citations.

14What this means for sentencing judges is that care must be taken in sentencing to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender, and that the sentence is not crushing having regard to the accused’s age, circumstances, and rehabilitative prospects. The Supreme Court has directed in R. v. M. (C.A.), [1996] 1 S.C.R 500, 1996 SCC 230 at para. 42:

“[t] effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is ‘just and appropriate.’”

46Continuing on at paragraphs 15-17 of sentencing:

15As summarized in R. v. Johnson, 2012 ONCA 339 at para. 18:

...a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative...promoting respect for the law and the maintenance of a just, peaceful, and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns.

16The totality principle applies even where par of the total term of incarceration includes a pre-existing sentence. In these circumstances, the totality of all the sentences must satisfy the proportionality requirement...However, in these circumstances, the totality principle has a “somewhat tempered effect”...A sentence cannot be either unduly harsh and excessive, or overly lenient and unresponsive to other purposes and principles of sentencing, including denunciation, deterrence, the promotion of a sense of responsibility in offenders, and acknowledgment of harm done to victims in the community, and the protection of the public. Our Court of Appeal has held that it is in this sense that an offender “ought not to be seen to be reaping benefits from his pervious serious criminal misconduct.”

17Accordingly, as directed in Johnson at paras. 24 and 25, a sentencing judge must consider that in addition to the principle of totality,

“there are other considerations regarding the need to protect the integrity of the sentencing process - public ‘confidence in the fairness and rationality of the system’...This need to protect the integrity of the sentencing process, and the overall purposes and goals of sentencing, are to be balanced against the recognition that there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive...at the end of the day, the subsequent sentencing judge will determine how much weight to give to the existing remaining sentence by assessing whether the length of the proposed sentence plus the existing sentence will result in a ‘just and appropriate’ disposition that reflects as aptly as possible the relevant principles and goals of sentencing in the circumstances.”

Firearms

47The courts at all levels have repeatedly, over and over again, called for harsh penalties for persons possessing and/or using lethal illegal firearms. I choose to start with R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773 and select examples from the cases promulgated thereafter in a year-by-year format moving forward.

48Moving to 2015, R. v. Nur. McLachlin, the Chief Justice, indicated at paragraphs 82, 119, and 120 as follows:

82Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty, J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade....[T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public” At this end of the range -- indeed for the vast majority of offences -- a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

VI. Conclusion

119...The mandatory minimum sentences imposed by s. 95(2)(a) are inconsistent with s. 12 of the Charter and are therefore declared...no force or effect under s. 52 of the Constitution Act, 1982.

120It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar.

49Moving forward to 2018, R. v. Kawal, 2018 ONSC 7531. Justice Harris indicates the following at paragraphs 11 through 15:

11Handguns are a social evil. The Supreme Court has said and there can be no possible argument against it, “Gun-related crime poses grave danger to Canadians.”...per Chief Justice McLachlin, at para. 1 (in Nur), see also Justice Moldaver in dissent...and Justice Watt...The primary purpose of handguns is to maim and to kill. Lawyers and judges see first-hand the destruction wrought by handguns. They are a disease, a plague on our communities. We have the means at our disposal to eradicate or at least to drastically curtail them. It is difficult to understand why our society would not do everything in its power to ensure that handguns are not available for criminal purposes.

12Harming a person without a weapon is not necessarily easy. But with a firearm, very little is needed. A slight degree of pressure applied to the trigger, a causal aim, and someone will likely be killed or severely injured. It is all too easy. We have come to the point where no intelligence or much of anything else is needed to kill or wreak grievous harm on another person. Malevolence is all that is required. Unfortunately, this is not always in short supply. That is a daunting prospect.

13The proliferation of handguns in the Greater Toronto Area has been decried by the courts and the public for many years. It is a pressing and urgent matter of public safety. Ten years ago, the serious concern of growing gun violence was said by the Court of Appeal to be a necessary consideration upon sentencing...It is even more so now (that) what with a record murder numbers in Toronto and the continuing increase of gun crimes and violence....

14Just last week, the Court of Appeal said in R. v. Omar ...:

“I am, of course, aware of the grave problem caused by illegal guns and drugs in our society. Everyone in the criminal justice system appreciates fully that the public is understandably alarmed by the prevalence of gun violence that threatens public safety and the public looks to the police for protection. I certainly do not suggest that a community’s desire to live free from the threat of illegal guns [sic] is irrational or impulsive. The law must also recognize that the police have a very difficult and dangerous job to perform.”

15The three guns involved in these criminal offences constitute a central aggravating feature in the sentence of Kawal and Nicholson. The importance of general deterrence, disseminating a message to the public by the imposition of a substantial sentence, varies with respect to the specific offence at issue. For many offences, such as offences committed in the heat of the moment, the philosophy of general deterrence may well collapse. In the category of handgun possession and use, however, general deterrence is a central and vital consideration.

50Staying in 2018, R. v. St. Clair, 2018 ONSC 7028, Justice Kenneth Campbell, who I personally know and is a brilliant jurist and former great Crown indicates at paragraph 47:

The courts have repeatedly noted that the possession of loaded handguns remains an all too prevalent threat to the people of Toronto, and to others in the Greater Toronto Area. Such firearms are frequently employed in connection with other kinds of serious criminal activity. Often, as illustrated by the facts in the present case, individuals engaged in the business of drug-trafficking have loaded firearms as one of the tools of their illicit trade. In any event, the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society.

51He makes further comments which I’ll return to subsequently. Again, 2018, R. v. Thavakularatnam, 2018 ONSC 2380. Justice Akhtar indicates at follows, paragraphs 18, 19, and 21.

18As has already been noted, the appellate authorities emphasise the need for a severe sentence to meet the gravity of the offence even when the offender is young and has a previously unblemished character.

19In R. v. Smickle, 2014 ONCA 49 at para. 19 the court remarked that:

“Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders.”

21Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents. Guns are made and used to maim, threaten, and kill. Their impact goes well beyond the victims of such crime: spouses, romantic partners, parents, and children suffer the trauma of a loved one lost to the mindless violence wrought by the use of firearms. Witnesses to gun violence may suffer traumatic effects that linger for their lifetime. Courts have sought to send an unambiguous message to those involved in gun crime that convictions will inevitably bear severe consequences.

52Staying in 2018, R. v. Graham, 2018 ONSC 6817. Justice Code outlined the ranges for a first s. 95 offence at paragraphs 36 through 38:

36In relation to the s. 95 firearms offence, it is settled law that denunciation, deterrence, and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition)...In addition, there is a strong need for specific deterrence in this case, given Graham’s persistent recidivism.

53The city he is talking about, I believe, is Toronto. Justice Code lives there.

37There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence in these s. 95 cases. In R. v. Carrol ...Molloy, J. analysed the effect of Nur and Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalled that Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy, J. held in R. v. Carrol ...that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s. 95 case involving well situated first offenders.

38More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s. 95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall ...Ontario Court of Appeal, the court upheld a three and a half-year sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whom were young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Both accused were involved in the drug trade and were carrying the guns in association with drug crime.

54Now, moving forward to the following year, 2019. 2019, R. v. Yasin Patel, 2019 ONSC 6302. Justice Dunnet held as follows at paragraphs 15 and 16:

15In R. v. Marshall, 2015 ONCA 692 at para. 47 the Court of Appeal held:

“In R. v. Nur ...this court held that the s. 95 statutory mandatory minimum aside, offenders who engage in s. 95 offences at the ‘true crime end of the s. 95 spectrum of offences’ should continue to receive exemplary sentences that emphasize deterrence and denunciation. Nur provides...that ‘[i]individuals who have loaded, restricted or prohibited firearms that...have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others’ will...attract such sentences...”

16I adopt the words of Goldstein, J. in R. v. Mansingh, 2016 ONSC 94 at paras. 40, 42:

40 Illegal handguns serve only one purpose: to kill other human beings...Illegal handguns are an insidious form of firearm that has been the cause of much death, grief, anguish, and loss in our community.

42 Our community abhors gun violence. Our courts have denounced the possession of firearms over and over again, in the strongest terms...[A]nything less than a significant penitentiary sentence for possession of a loaded restricted or prohibited handgun even for a first offender is inappropriate unless there are exceptional circumstances.

55Now, moving forward to 2021, R. v. Tabnor, 2021 ONSC 8548. Justice R. Campbell does a useful analysis of the appropriate ranges for s. 95 offences indicating as follows at paragraphs 15 through 20:

The Range of Sentence

15A useful starting point for the analysis is the judgment of Chief Justice McLachlin in Nur where she said, at para. 82, that...the “vast majority” of cases, a three-year sentence for a violation of s. 95(1) is likely to be appropriate. That observation referred to two cases where the offence extended far beyond a “licensing” infraction and constituted a “true crime”, the most common example of which is the armed drug dealer...I acknowledge the point made by Mr. Okada-Phillips that cases since Nur illustrate that three years is not a standard or baseline for firearm possession cases. However, given what I know of Mr. Tabnor’s deep involvement in drug dealing, and the frequency with which he armed himself in public, I would see no reason to give him a sentence lower than three years if all he had done with the gun was carry it about to protect himself during drug transactions.

16This gun, however, was shot five times and came within inches of causing grievous injury or death to Mr. Brown while creating a grave risk to others at the same time. Decisions made by Mr. Tabnor while he was in possession and control of the gun led to that happening. This fact about Mr. Tabnor’s possession of the gun takes his culpability to a distinctly higher level. The Crown invited my to consider the range of seven to eleven years, referring to the judgment of the Court of Appeal for Ontario in Bellissimo, which involved a shooting in a restaurant where two people were injured and a third could have been killed. There is little elaboration on the facts in Bellissimo nor an analysis of just what kinds of conduct fit a case within its seven to eleven year range; it may be limited to cases where injury has occurred or been attempted; see Jama at para. 44. This is a case of possession and, much as I may suspect Mr. Tabnor knew what the shooter would do, this [sic] has not been proven. His awareness of the range of things that the shooter might do, however, inevitably included discharging the gun. Mr. Tabnor’s actions were essential to creating a situation where extreme psychological harm was inevitable and grave physical harm was entirely foreseeable.

17For these reasons, I do not place Mr. Tabnor’s case within the Bellissimo framework for assessing gravity and imposing a sentence proportionate to it. Nonetheless, it is in a class well above the ordinary case under s. 95(1) contemplated in Nur.

18Jama provides a useful comparison. The defendant in Jama drove a car into an apartment parking lot where his passenger fired three shots in the direction of another car which was occupied. Mr. Jama then drove away with the shooter. Because they were never identified, it was unknown whether injuries had been caused to the occupants of the second vehicle. Mr. Jama was convicted of recklessly discharging a restricted firearm, as a party. For his part in the crime, he was sentenced to five years by Schreck J, before deductions for pre-sentence custody.

19The level of moral culpability in the two cases is comparable, though there are differences. On the one hand, this case appears more serious because Mr. Tabnor’s conduct was already aggravated by his routine possession of a gun to facilitate drug trafficking, a feature absent from Jama. Moreover, the gun in this case belonged to Mr. Tabnor and was given by him to the shooter. The weapon was returned to Mr. Tabnor, who reloaded it to its full capacity in an oversized magazine which was also not a feature of the Jama case. On the other hand, Jama was convicted of the offence of discharging the firearm whereas Mr. Tabnor, despite his integral role in the crime, is being sentenced for possession of the gun, not its discharge.

20Justice Schreck viewed the facts of Jama as supporting a sentence in the range of five to seven years, placing it between the three to five years appropriate for mere possession of a firearm and below the range in Bellissimo for cases where firearms are discharged with...intent to cause injury.

Conclusion Regarding the Crown’s Case

56On the basis of Justice R. Campbell’s analysis in Tabnor and the relevant case law demanding stricter sentences to deter the proliferation of gun crimes, I find that the appropriate range of sentence, in the present circumstances to be considered, is in the five to seven-year range given that a death of a young woman resulted from the accused’s and co-accused’s reckless and stupid possession of a deadly loaded GLOCK firearm. I now wish to return to the defence cases.

Defence Case

57I will start again in a chronological order, year by year. Starting at 2017, R. v. Hassan, 2017 ONSC 4570. Justice Backhouse indicates at paragraphs 56 through 58, 65 and 80 as follows:

Appropriate Sentence for Firearms Offences

56It is well-established that when it comes to possession of restricted firearms, the overriding principles of sentencing must be denunciation and deterrence. While there is no longer and three-year mandatory minimum sentence of imprisonment for these offences, they remain very serious and almost always require the imposition of a substantial period of imprisonment, even for first offenders.

57Where the offender is an outlaw who carries a loaded firearm as a tool of his or her trade, a penitentiary sentence of 3 or more years is generally appropriate...Mr. Hassan’s crimes are “true crimes” in the sense meant by Doherty, J.A. in para. 52 of Nur....

58The imposition of sentence is very much a fact-driven exercise. Every case must be decided with regard to the unique circumstances of the case. There are exceptional aspects in this case not present in other cases.

65After weighing all of the factors, both aggravating and mitigating, I have concluded that the interests of justice would be served by the imposition of a reformatory sentence in the upper range.

Conclusion

80In determining the appropriate length of the conditional sentence, I take into account that Mr. Hassan spent the equivalent of 22 days in pre-trial detention and 35 months on strict bail conditions. I find a conditional sentence of 2 years to be a fit and just sentence. While this is a global sentence, for purposes of clarity, the 2 years shall be applied to Count 1 and concurrent to Counts 2, 4, and 8. A 6 month concurrent sentence shall apply to Count 3 (carry ammunition in a careless manner).

58Moving forward to 2020, the year that this occurred. R. v. Toussaint, 2020 Carswell Ont. 1604, a decision of the Ontario Court of Justice. Justice McLeod held as follows at paragraphs 88 through 90:

88There is a well-established body of law dealing with the aggravating relationship between drugs and guns expressed in the case law that treated loaded guns in the hands of drug traffickers as tools of the drug trade. Tools that are intended to be used. The reasoning is sound and the necessity for particularly harsh responses to offenders in this category is well-established, but that isn’t Mr. Toussaint’s situation.

89On the evidence as reflected in the plea, he was in possession of drugs as a consumer not as a trafficker. I am aware of a couple of decisions where offenders who were found to be in possession of fentanyl were sentenced to jail as an application of the principles of denunciation and deterrence aimed at the drug trafficking enterprise crime by punishing the consumers. I don’t find the reasoning in these decisions to be persuasive, at least not to the extent required to overturn the reasoned, rational, and principled practice of distinguishing between users of drugs and drug traffickers, a practice that targets those engages the operative agent in supplying the drugs for punishment rather than the users.

90So, Mr. Toussaint, if you could stand up, please? The information will show 205 days of pre-sentence custody enhanced at the rate of 1.5-to-1. That works out to 308 days, which is the equivalent, for our purposes, of 10 months. So, after crediting the 10 months again 24 months that I’m using as a base sentence, you’ll be sentenced to 14 months of custody followed by a probation of 12 months on terms that will require you to keep the peace and be of good behaviour and not have in your possession any weapons or controlled drugs not prescribed for your use.

59Moving to the following year, 2021. R. v. Ahmed, 2021 ONCJ 473. Justice Boxall held as follows:

The most - and I’ll get, Madam Clerk, to figuring out - we go and we’ll do the order - because that’s not the predominant offence. The predominant offence here, of course, is the possession of the loaded handgun. I’m taking into account all the circumstances in this case, not only the matters I’ve referred to previously but the submissions of counsel. I note that it was a plea of guilt. I’m applying significant weight to that. The gun was not mobile and was in the mattress at his home.

I’m familiar with the cases. There is still some considerable discretion in the trial judges, particularly in the Ontario Court of Justice, on early pleas, in the pandemic, to impose an appropriate sentence. In my view, exercising restraint and considering all the circumstances, the lowest sentence that I could consider would be one of two years or 730 days.

The sentence that I would have imposed for the possession of the loaded handgun would have been 730 days. From that 730 days, I am going to give various credits:

• For the initial 27 days of pre-sentence custody, I’ll factor that at 1.5, which is 43 days.
• For the 78 days in pre-sentence custody during the COVID time, the credit would be 1.5 but I’m going to give an additional credit of .5 for each day which effectively makes it 2 days for each. So those 78 are going to be credited at 156.
• For the restrictive bail that he complied with, with the order that he undertook with me, I’m going to give him credit for that for 100 days.

So the total credit, if my arithmetic is correct, for the pre-sentence custody and the bail credit is 299. So on the 95, possession of a loaded handgun, which is the lead offence, the sentence I would have imposed is 730 days. I’m going to subtract 299 days, which leaves a sentence remaining on that of 431 days.

60Moving forward to 2022, R. v. Jeffery, 2022 ONSC 3828. Justice Leibovich held as follows at paragraphs 24 through 26, 28, 29:

24This case involves the illegal possession of a firearm - a handgun. Such guns serve no legitimate purpose. Gun violence is a box on our society. It seems that not a day goes by without hearing of another handgun shooting. Sentences for firearm offences must further the goals of denunciation, deterrence, and protection of the public and require judges to impose exemplary sentences in appropriate circumstances....

25I agree with (the) Crown counsel that the firearm offences committed in this case can only be considered as true crimes. While it is unknown what use the accused would have made of the firearm, the acquiring of a gun by two accused who were, at the time, involved in the drug trade is a serious concern. I appreciate that neither accused were convicted of any drug offences, even though cocaine was found in the center console of the car and in Mr. DaCosta’s bag. Mr. DaCosta testified that he and...Jeffrey, on June 21, 2019, were both in Peterborough collecting drug debts. I accept this evidence, which was not contested. Guns and drugs are a toxic combination....

26The principle of restraint set out in ss.718.2(2) and (e) Criminal Code still operate when sentencing for gun offences, even when those offences require the imposition of a term of imprisonment.

61Moving forward to paragraph 28:

28In any event, past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by Fairburn, J.A. in R. v. Mohamed, 2020 ONCA 163 at para. 28:

“Sentencing is not a purely mathematical exercise with floors below which and ceilings above which the sentence cannot go. Sentencing ranges are guidelines, but not hard and fast rules...As Wagner, J (as he then was) noted in Lacasse, at para. 58, there will ‘always be situations that call for a sentence outside (of) a particular range.’ Those situations will sometimes arise from the sentencing judge’s impressions and findings regarding the unique circumstances of the case, including the uniqueness of the individual who is being sentenced.”

29In my view, a sentence of two years less a day is merited for each offender....

62Finally, 2024, this year. R. v. Stewart, 2024 ONSC 281. Justice Nakatsuru indicates as follows:

2The facts of your crimes are simple. Too often in our criminal courts we hear such facts. On June 17, 2019, the police got a search warrant for your home and your car. You drove your car into the underground with your girlfriend, got out, and were arrested. You had a satchel with a loaded firearm, chambered, with an overcapacity magazine. Two small baggies of fentanyl were found on your person: 9.9 grams of fentanyl in total. A quantity of cash was located in the center console of the car.

63Paragraph 40 to 43:

40....When a firearm is possessed as “tool of the trade”, even for a first offender, a sentence in the Crown’s suggested range is not unusual. This is...what the Supreme Court of Canada said in R. v. Nur:

64And he quotes paragraph 82, which I already read from.

41However, I also take from this passage that even though fentanyl possession is involved in your case and you have admitted to a criminal lifestyle, we are still looking at the same range. Put another way, even when the overall circumstances in your case, show a heightened danger to the public given the mix of guns and drugs, this comment in Nur still applies.

42Thus, I have no quarrel with the Crown position of three years as being within the range of sentence for this type of offence. Commonly, it is said that the range is three to five years.

43However, if there is good reason to depart from such a range, then a trial judge in exercising their discretion can do so. When it is right, as the five-member panel of the Court of Appeal held in Morris, a fit sentence for the possession of a loaded prohibited firearm can be a reformatory sentence.

67Another principle of sentencing supporting a conditional sentence is that of restraint, given that you are a youthful first offender. Still another is the one mentioned in Morris where we must do better, when the facts call for it, when it comes to the overincarceration of Black offenders. A conditional sentence, in the right case, is an ideal way to tackle this difficult problem.

71The maximum reformatory time is the proper sentence; that is two years less a day. Since you have done some pre-trial custody, credit for this will be subtracted from this sentence. You were in jail from...That is 32 days in pre-trial custody, attracting a credit of 48 days, on the basis of the 1 to 1.5 credit, as allowed...in the Criminal Code. Thus, your sentence will be 22 months and 11 days. Taking into account the totality principle, the sentences on each count will be served concurrently.

Conclusion Regarding the Defence Cases

65The gist of the defence cases is that notwithstanding an acknowledgment that an appropriate sentence range is normally three to five years, in exceptional and/or special circumstances as sometimes outlined in those cases, sentences of less than two years are appropriate including conditional sentences.

66Given the aggravating circumstances present in this case as previously detailed and will be discussed shortly as well, all of the defence cases are distinguishable on the facts of Mr. Beauparlant’s case.

67Further, the Crown’s sentencing materials also introduce an additional factor which I must consider.

Statistical Analysis

68Gun crimes are increasing in Hamilton. In 2016, and this is the year after Nur, there were 23 shooting occurrences in Hamilton with 15 victims. Further, in 2016 there were 39 s. 95 gun charges. However, by 2020 shooting occurrences in Hamilton had increased to 51 shooting occurrences with 21 victims. In 2020, the year of this offence, there were either 98 or 95 s. 95 charges. See Crown materials, Exhibit 2, and statistics at Tab 18, pages 1 and 2, and Exhibit 3.

69Shooting occurrences in 2023 were lower than 2020, but still very much higher than 2016. Section 95 gun charges are still increasing post-2016 and 2017. According to the Shooting and Firearms Crime Statistics 2019 through 2024, that’s Exhibit 3, in 2021 there were 89 s. 95 charges, a slight decrease from 2020. In 2022, s. 95 charges peaked at 115 charges. And, in 2023 there were 96 s. 95 charges. All of the 2020 to ’23 charges range from 89 to 115 s. 95 charges. This is significantly higher than the 2016 39 charges and 2017 32 charges. The bottom line is that since 2016, s. 95 gun charges have dramatically increased in Hamilton, notwithstanding Ontario courts at all levels calling for stricter sentences.

70In my opinion, these statistics argue strongly against lenient sentences, which practically would grant a de facto licence for criminals to flaunt gun legislation and the rule of law. As an interesting aside, Chart 5 at page 7 of Tab 18 of Exhibit 2 indicates that the low point of shooting occurrences in Hamilton in that chart was in 2013 and 2014, 31 and 27 arrests and charges respectively. And, that was just before the Nur decision.

71The number of shooting occurrences has dramatically increased from the 2015 Nur decision going onwards. For example, in 2022 there were 229 shooting arrests and charges. Nur is reported at 2015 SCC 15, 2015 1 SCR 773 and the Supreme Court of Canada in Nur eliminated mandatory minimum sentences outlined in the s. 95(2)(a) gun offences, see Nur, para. 119.

72The practical reality is that gun crimes in Hamilton have significantly increased post-2015 Supreme Court of Canada decision in Nur abolishing minimum sentences for s. 95 offences.

Conclusion – The Current State of Affairs Regarding Hamilton Gun Crimes

73In layman’s terms, to put it simply, the case law and statistical evidence combined appear to lead to three simple conclusions.

1. For the past 10 years, the courts at all levels have over and over expressed concern about the proliferation of gun crimes and have made strong statements regarding about the need for strict and harsh penalties in order to deter further gun crimes.
2. At the same time, as illustrated by the defence cases, some courts have exercised their discretion to impose gun crime sentences well below the mandatory statutory minimum which Nur eliminated.
3. After the elimination of the statutory minimum, and despite the judicially expressed concerns over and over regarding the inherent and increasing dangers presented by gun crimes, some Ontario courts have imposed relatively lenient sentences in a decade when gun crimes in Hamilton have increased at a very alarming rate. Judicial tough talk does not appear to have deterred criminals from possessing firearms.

Rehabilitation Prospects of the Accused

74Justice Code, a very learned and respected Superior Court of Justice, has held in R. v. Graham, 2018 ONSC 6817 at para. 31 the following:

In my view, it is a common sense proposition that Graham’s most recent criminal conduct, including while on bail for the present offences, is probative of his actual rehabilitative potential at the present time, that is, at the time when he is being sentenced. It is Graham’s burden to prove on a balance of probabilities that he has present rehabilitative potential. The Crown seeks to rebut the above summarized evidence, relied on by Graham to prove rehabilitative potential, by pointing to his post-January 2016 criminal convictions. This evidence simply negates or weakens defence efforts to prove a mitigating circumstance. It does not advance or prove an aggravating circumstance.

75The pre-sentence report prepared in May 2022 for the Brantford charges indicates at page 6 that the accused had a positive upbringing, stable parental relationships. He was provided with the necessities of life, supportive relationships, and had no exposure to abuse or violence during his childhood. The accused’s mother cannot explain motives behind the accused’s crimes and speculates that the accused is motivated by boredom or financial reasons. The accused accepted responsibilities for his crimes and acknowledges his motive was that of financial gain.

76The accused has minimal employment experience. The accused has not completed his high school education. The accused admits to using a variety of drugs, but he has never sought counselling or programming for substance abuse. See Exhibit 2, Tab 7, the Brantford Pre-sentence Report, dated May 10, 2022, at pages 4 through 7.

77Justice Broad, in sentencing the accused in the Brantford charges concluded at paragraph 61 that the accused’s “youth and supportive family count toward his rehabilitative potential.” Just Broad at paragraph 35 indicates:

The PSR demonstrated the defendant has what Ms. Craig described as “tremendous rehabilitation potential” with an extremely supportive family. He enjoyed a positive upbringing with no evidence of having suffered any abuse and had no criminal record.

78See Exhibit 2, Tab 8. Justice Sweeny, in addressing the subsequent Hamilton charges held at page 10, “The accused has no prior record and he’s a youthful offender who has the support of his family.” At page 11, Justice Sweeny indicates a four-year sentence pursuant to a joint submission, “balances the need for deterrence and also takes into consideration the potential for rehabilitation of the offender.” See Exhibit 2, Tab 9, pages 10 through 11.

79The Joyceville Assessment Plan dated July 10, 2023, expresses some reservations about the accused’s rehabilitation prospects despite indicating the accused reflects a low risk for recidivism. The report indicates that:

The accused had limited insight into ling-term consequences on himself and his family, or greater risk to society in general from the drug subculture. Mr. Beauparlant used poor critical thinking and his risky temporary attitude allowed him to make several poor life decisions.

80See Exhibit 2, Tab 10 at pages 4 through 8. Paul Kane, a parole officer, indicates in an email dated February 12th, 2024, the following:

Beauparlant has been at Beaver Creek Medium since July 2023. In October he refused to provide a urine sample, but finally admitted he was smoking cannabis. On January 26 he was found smoking cannabis and on January 30th he decided to join in with some of his range mates for some drinking. Twenty-five litres of brew were found in his cell. I spoke to him about this and he admitted it was a stupid thing to do. Because of a lack of a criminal history he doesn’t require programming. He currently holds a range worker job, but this does not require any responsibility. He doesn’t seem too motivated to look for a better job, but now that he’s ben caught drinking and using drugs he would not be eligible for some of the better positions. He is required to go to school but he has not started yet. Overall, Mr. Beauparlant’s institutional behaviour could be better, especially for someone who does not have a criminal record and who is facing serious outstanding charges. I see him as young and immature and I’m afraid he’s bowing to pressure from others. He seems to be a follower.

81See Paul Kane’s email dated February 12th, 2024, Exhibit 2, Tab 12.

82The Crown submitted as Exhibit 5 a further email from Mr. Kane indicating, first of all, from February 21:

At the assessment unit in Joyceville, school was assessed as moderate need because he does not have his Grade 12 and attending school is part of the correctional plan. However, he has not been enrolled and remains on the wait list. Mr. Beauparlant should have taken the initiative to contact the school to start his classes, but he hasn’t. Because he does not meet the criteria for correctional programming, he is aware of this, based on his lack of criminal history he is encouraged to participate in voluntary programs offered in the chapel and sign up for the vocational programs courses we offer. To my knowledge, he has not taken the initiative to participate in any of the programs we offer.

83And he indicates most recently, the accused would be automatically waitlisted for school, and if he did take the initiative he would likely be enrolled by now.

84The defence counters this information by relying on, for example, the following comments from the Joyceville Assessment Unit, reproduced at Tab 10 of Exhibit 2, Crown Materials. At page two regarding associates, substance abuse, community functioning, personal, emotional, and attitude, it indicates low need for improvement. Education, moderate need for improvement. Accountability high, motivation level high, reintegration potential as high.

85At page five of that report, “The offender presents as motivated to upgrade his education as he understands that it will be a critical component for getting a job once released.” At page eight of the report:

Consistent with file information, Mr. Beauparlant expressed embarrassment and remorse for becoming involved in criminal activity. Mr. Beauparlant plead guilty to the second set of index offences, is accountable, appears genuinely remorseful, and can recognize the negative impact drug trafficking has had upon himself, his family, and community at large. Overall, Mr. Beauparlant presents with a pro-social attitude and is motivated to return to a pro-social lifestyle. Mr. Beauparlant’s attitude and motivation will undoubtedly eventually contribute to successful community reintegration. This domain requires a low level of need.

86Contradicting these comments are post-assessment behaviours.

1. When regarding education, as I’ve referred to, Exhibit 5 emails from Parole Officer Paul Kane suggests the accused, if he had taken some initiative would now be in the education program instead of waiting.
2. Regarding substance abuse, Officer Kane notes at Tab 12, Crown Materials - Sentence, that the accused, while at Beaver Creek, the accused refused a urine test, but admitted to smoking cannabis. The accused also drank alcohol with other inmates. This appears to be consistent with comments made at Exhibit 10 where at pages 5 to 6 the accused indicated in assessment “Mr. Beauparlant detailed that he did not abuse substances regularly as his trafficking was primarily crime for gains and he only used them in excess when he was partying with friends.”
3. Regarding reintegration and motivation, Parole Officer Kane indicates in the February 12th, 2024 email, that the accused doesn’t seem to be motivated to look for a better job, his institutional behaviour could be better. He describes the accused as a young, immature, and a follower.

87Given this contradictory evidence, and given further the fact that:

1. The accused had decided to consume both alcohol and drugs while incarcerated, shocking that that is possible but it is.
2. Has not started school and has not taken the appropriate initiatives to start school.
3. Has not taken the other outlined initiatives to better himself as described by Parole Officer Kane, and
4. Is deemed to be young and immature, and still making foolish decisions as a follower,

88I am not satisfied that at this time the accused has good prospects for rehabilitation. His major asset is his supportive family, but he had that when he committed these very serious criminal offences.

89As indicated in Graham at paragraph 31, which I have referred to, it is the accused’s burden to prove on a balance of probabilities that he has present rehabilitative potential. The accused has failed to meet this burden. So, finally,

Disposition

90Regarding totality, the Johnson and Armstrong, cases previously referred to, require me to impose a sentence that is not crushing having regard to the accused’s age, circumstances, and rehabilitative prospects. Those cases, as well, require me to respect the integrity of the sentencing process. I must determine how much weight to give the existing remaining sentences by assessing whether the length of the proposed sentence plus the existing sentence will result in a just and appropriate disposition that reflects as aptly as possible the relevant goals of sentencing in the circumstances. See, Armstrong at paragraphs 13 through 17, relying on Johnson, 2012 ONCA 339.

91On the two sets of drug charges, as previously discussed, the accused had 3 years, 11 months, and 11 days to serve commencing August 2nd, 2022. This was in large part due to the second set of drug charges, the Hamilton drug charges, that the sentence of 4 years was applied concurrently to the first set of Brantford charges as previously discussed. The accused is eligible for full parole on the combined drug charge sentences as of November 2023, three months ago. His statutory release date is March 19th, 2025, approximately one year in the future.

92Given this background, an appropriate sentence on a gun charge that gives effects to the usual principles of denunciation and deterrence and rehabilitation will still satisfy the proportionality requirement and will give effect to the notion that the offender “ought not to be seemed to be reaping benefits from his previous criminal misconduct.” See Armstrong at paragraphs 13 through 17.

93As previously detailed, I have concerns about the accused’s rehabilitative prospects. It is clear that the accused had the advantage of a normal, supportive family and childhood but made a deliberate choice, instead, to engage in a life of crime for reasons of greed and access to easy money offered by the drug trade.

94As outlined by the cell phone excerpts in Tab 17 of Exhibit 2, the accused, leading up to the shooting of Ms. Larmond, was trafficking in drugs. It is easy to infer that the accused was in possession of the GLOCK firearm for the purpose of the firearm being a “tool” to facilitate his drug trafficking. The accused has no valid certificate and no valid licence to possess this firearm, and his possession of the GLOCK handgun was illegal.

95The accused recklessly brought the firearm to a party where people were drinking alcohol and consuming drugs. The accused and Skye-Davis were playing with the handgun as if it was a toy. See the videos at pages 7 through 16 of Exhibit 2, Tab 14.

96While Skye-Davis was “playing with the gun” it discharged and the bullet struck 17-year-old Myah Larmond in the head causing injuries which would be fatal several hours later. I find there was no intent to kill Myah Larmond. The handgun discharged due to the combined stupid and reckless actions of Skye-Davis and the accused.

97Skye-Davis remained on the scene and called 911 for help. And, what did the accused do after Ms. Larmond was shot? He retrieved his gun and fled the scene, doing nothing to assist a grievously wounded teenager dying on the floor. This despicable and cowardly flight displays a cold and insensitive action that is hard to comprehend. But again, just as his deliberate choice to engage in illegal drug activity for the purposes of greed and easy money, the accused made a deliberate and wicked choice to abandon a young, dying girl in order to escape the consequences of his actions. His actions being reckless and criminal behaviour.

98And, it worked for a significant period of time. The GLOCK firearm was never recovered. And, I can conclude that the accused disposed of it, being the intelligent person I’m told he is. Further, the accused was not arrested on these charges until August 12th, 2021, approximately one year later.

99And, what did the accused due with that ill-gotten extra time of freedom? It is obvious that he continued on with his drug trafficking as if nothing untoward had happened in July of 2020. That is, until he got caught in the Brantford area trafficking in significant amount of potentially lethal fentanyl along with other drugs. It appears good persons don’t traffic in lethal fentanyl. It was described as such in Exhibit 6.

100It appears that the accused was released on bail in Brantford on those drug charges with conditions that included to remain in his residence, not possess drugs, and not to possess more than one cell phone. He violated all those conditions. And, what did the accused do while on that bail release other than violating the conditions? Why, he continued to traffic in drugs again, as if nothing had happened in July 2020 or upon his arrest. This time this happened in Hamilton where he was arrested. Not only did the accused violate a number of his bail terms, but it is also obvious that the accused was still carrying on a very lucrative illegal drug trade. $22,205 in cash was seized, along with weapons and drug paraphernalia. The accused received significant penitentiary sentences on the two sets of drug charges, which were not as significant as they could have been, given that the sentence on the second set of charges ended up being concurrent. However, this sentence does not make up for that error and is not designed to do so.

101Accordingly, at present, the accused is eligible for full parole on the two drug sentences and his statutory release is approximately one year away. That’s the relevance, for my purposes, for the matter involving totality.

102According to the statistics outlined in Chart 5 of Tab 18, page 7 in Exhibit 2, shooting occurrences, arrests, and charges total 229 in 2020. That was the year this shooting occurred. This is a very concerning and dramatic increase from the pre-Nur decision era where, as I have indicated, 31 and 27 shooting occurrences occurred in 2013 and 2014. 229 is dramatically more than 31 and 27. The 2021 figure in Chart 5 shows a decrease to 112 charges, however, that is a very significant increase again from 2013 to 2014.

103The defence put it succinctly when she stated that the sentences for gun crimes post-Nur are going down. In Hamilton, while that is going on, gun crimes post-Nur are going up. Those two events, in my opinion, are not unrelated.

104The question thus arises, is it finally time to do more than just engage in tough talk when sentencing criminals involved in serious gun crimes? In the current circumstances, the comments of Justice Ken Campbell in R. v. St. Clair bear going back to. You will recall I referred to paragraph 47 and I return to paragraph 47 in St. Clair. Justice Ken Campbell, who I considered to be a brilliant Crown when he was that, and a brilliant judge indicates:

...the possession and use of loaded firearms tragically results, all too frequently, in serious bodily harm or death to others. The unlawful possession of firearms remains a menace to society. To combat this serious social problem, these offences must be met with exemplary custodial sentences that proportionally reflect the sheer gravity of the crime, and which appropriately stress the need to denounce and deter such crimes. In the absence of such sentences, these offences and their disastrous consequences will only continue unabated. The public must be adequately protected. This can only be accomplished by sentences that ensure that potential offenders know that their illegal possession of loaded handguns will almost invariably be accompanied by serious penal consequences.

105Those comments by Justice Ken Campbell in 2018 have been both prescient and prophetic in Hamilton and apply with greater force in this community in 2024. As detailed previously, the range of sentence in the circumstances present in this case, in my opinion, are in the five to seven-year range. Given the proliferation of gun crimes in Hamilton, a strong deterrent sentence is now urgently required for convictions for Hamilton gun crimes or we will get more of them.

106Further, given the absolute irresponsible and reckless behaviour engaged in by the accused, which ended up in the senseless death of an innocent young teenage girl, anything short of a significant penitentiary sentence would bring the administration of justice into disrepute.

107And, further still, and I cannot emphasize this more, the accused’s total abandonment of a severely injured young girl, who was bleeding and dying on the kitchen floor before him is an evil so monstrous that it is hard for any normal person to comprehend how such a cold and callous act can even be attempted.

108The gist of the Exhibit 6 reference letters filed by the defence from family and friends describe the accused as loving, kind, caring, and selfless person. In light of the accused’s actions just described before him on July 15, 2020, during and after the shooting of the deceased, I reject those comments as not being credible.

109Accordingly, given the aggravating circumstances presented in this case and the very urgent need in this community to do more than tough talk, but to finally deter the ever-increasing plague of gun crimes in the Hamilton community, I sentence Mr. Beauparlant to the top end of the range of five to seven years.

110And, the result, Mr. Beauparlant, stand. You are sentenced to seven years in the penitentiary, consecutive to any of the sentences you are currently serving. You can sit down.

Ancillary Orders

1111. There will be an order pursuant to section 109 Criminal Code that the accused be subject to a weapons prohibition for life.

1122. There will be a non-communication order under section 743.21 Criminal Code prohibiting the accused from communicating with the following persons: Christine Gramada, Wayne Larmond, Gordon Larmond, Ann Gramada, Hannah Rae Larmond, Evelyn Ribble, Asia Bryant, Jacob Bona, Devante Skye-Davis, and any other member of Myah Larmond’s immediate family.

1133. Finally, there will be an order of forfeiture regarding the accused’s cell phones, which were seized during police investigation.

114That is the sentence of this court, seven years consecutive. Make sure you put that on the indictment, Madam Clerk.

Skarica J.