COURT FILE NO.: CR-21-70000667-0000 DATE: 20240513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

NICHOLAS HUSSEY-RODRIGUES Defendant

Counsel: Ellie Minchopoulos, for the Crown Scott Reid, for the Defendant

HEARD: February 5 and March 28, 2024

REASONS FOR SENTENCE

J. R. PRESSER J.

I. INTRODUCTION AND OVERVIEW

[1] I have found Nicholas Hussey-Rodrigues guilty of very serious gun possession offences, committed in circumstances that endangered the public, the police, and himself. These are offences that require denunciatory and deterrent sentences. At the same time, Mr. Hussey-Rodrigues is a youthful first offender. In the period of almost five years since he was charged, Mr. Hussey-Rodriguez has changed his life. He has substantially rehabilitated himself. He has also become the primary, and by all accounts an excellent, parent of his young son who has special developmental needs. All the evidence suggests that it would be devastating to the child if Mr. Hussey-Rodrigues were incarcerated. In these circumstances, I face the difficult task of crafting a sentence that will be proportionate both to the gravity of the offences and to Mr. Hussey-Rodriguez’s moral blameworthiness, while properly addressing the collateral consequences of sentence.

[2] On February 5, 2024, Nicholas Hussey-Rodrigues pleaded not guilty to two counts in an indictment but invited me to find him guilty of both. He did not contest the facts or call any evidence. The two counts were counts 2 and 3 on the indictment: one count of possessing a loaded prohibited firearm without authorization, licence, or registration certificate, contrary to s. 95(1) of the Criminal Code; and one count of possessing a prohibited firearm while knowingly not being the holder of a licence, contrary to s. 92(1) of the Criminal Code.

[3] On the strength of Mr. Hussey-Rodrigues’s invitation to find him guilty of both counts, I did so. The matter was adjourned to enable the defence to collect evidence. On March 28, 2024, Mr. Hussey-Rodriguez appeared before me for the sentencing hearing.

[4] The position of the Crown is that the appropriate sentence, once credit is given for pre-sentence custody and time spent on a house arrest bail, is three years in penitentiary. The defence submits that the appropriate sentence in all the circumstances of the case is a conditional sentence of two years less a day, followed by three years of probation.

[5] For the following reasons, I have come to the conclusion that a fit and fair sentence is a punitive conditional sentence of two years less 24 days, followed by three years’ probation, and a number of ancillary orders. After much deliberation, I concluded this sentence would be proportionate to the gravity of the offences and the blameworthiness of the offender, considering all the objectives of sentencing in the circumstances of this case, as well as the collateral consequences.

II. GENERAL LEGAL PRINCIPLES APPLICABLE TO SENTENCING

[6] Section 718 of the Criminal Code establishes that the fundamental purpose of sentencing is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society by imposing just sanctions with regard to one or more of the enumerated sentencing objectives. The enumerated objectives include denunciation, specific and general deterrence, separation of offenders from society, rehabilitation, and acknowledgement of the harm done to victims or the community.

[7] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility in the offender: s. 718.1. Proportionality is the sine qua non of a just sanction: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. A just sanction “is guided by the loadstar of proportionality”: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 59. The other objectives and principles of sentencing “must be taken into account and blended in a manner that is proportionate to the gravity of the offence and the degree of responsibility of the offender”: Morris, at para. 61.

[8] In R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at paras. 9 – 12, the Supreme Court re-emphasized that the goal of every sentencing is a fair, fit, and principled sanction. Proportionality is an organizing principle in reaching this goal. Proportionality is to be determined on an individual basis, in relation to the offender themself; in relation to the offence committed by the offender; and in comparison with sentences imposed for similar offences committed in similar circumstances. Individualization is central to the proportionality assessment. While the gravity of a particular offence may remain relatively constant, each offence is committed in unique circumstances by an offender with a unique profile. At the same time, similar offences committed in similar circumstances should result in similar sentences.

[9] Proportionality is determined with regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender: s. 718.2.

[10] Sentencing judges must also consider the following guiding principles, set out in s. 718.2(b)-(e), as annotated in Morris, at para. 60:

(b) a sentence should be similar to sentences impose on similar offenders for similar offences committed in similar circumstances [the parity principle];

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [the totality principle];

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [the restraint principle]; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [the restraint principle as applied to incarceration].

[11] Canadian jurisprudence has recognized that firearms offences involving the unlawful possession of loaded guns in public places, like the offences at issue here, require sentences that emphasize denunciation and general deterrence: Morris, at paras. 68, 71; R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 19; R. v. Brown, 2010 ONCA 745, 277 O.A.C. 233, at para. 14; R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 201 O.A.C. 138, at para. 78. It is the inherent dangerousness of unlawful possession of loaded prohibited or restricted firearms that makes denunciation and deterrence of paramount importance. Because of the need to prioritize denunciation and deterrence in sentencing these crimes, the proportionality principle typically requires sentences that include imprisonment: Morris, at para. 70.

III. CIRCUMSTANCES OF THE OFFENCES

[12] On July 22, 2019, the Toronto Police Guns and Gangs team were at 4 Newbold Avenue in Toronto. Police had arrested two people, one of whom was Mr. Hussey-Rodrigues’s brother.

[13] Police officers observed Mr. Hussey-Rodrigues nearby, walking toward an address that was the subject of a search warrant. Officers approached him. He ran. Officers gave chase. They caught up to Mr. Hussey-Rodrigues. In the struggle that ensued, a loaded prohibited firearm fell to the ground. Mr. Hussey-Rodrigues was arrested and charged.

[14] The firearm was a Ruger SP-101 9 mm center fire caliber revolver handgun with a barrel length of 78 mm and a five shot cylinder capacity. The certificate of analysis filed as an exhibit on sentencing indicates that the handgun was functional. This is a prohibited firearm as defined in s. 84 of the Criminal Code.

[15] The gun was loaded with five cartridges of 9 mm center fire ammunition. This is ammunition within the definition in s. 84 of the Criminal Code.

[16] Mr. Hussey-Rodrigues did not have a licence or registration for the gun.

[17] Newbold Avenue, where these events took place, is a residential street in Toronto. Google Maps photographs of the street were filed as exhibits on sentence. They reveal that there are quite a few houses and low-rise apartment buildings close to each other on Newbold Avenue, and on its adjacent street, Gainsborough Road. The Google Maps photos also evidence signs of regular human habitation: a number of parked cars, a number of bicycles chained to fences, and garbage and recycling bins put out to the curb. Newbold Avenue has what appears to be a small leafy park at the end of the street. This park is steps away from 4 Newbold Ave., where Mr. Hussey-Rodrigues was arrested. Google’s photo captured a cyclist chaining his bicycle to the fence at the entrance to this park.

IV. MR. HUSSEY-RODRIGUES’S BACKGROUND AND PERSONAL CIRCUMSTANCES

[18] Mr. Hussey-Rodrigues was 18 years old at the time of the offences. He is 23 years old now.

[19] He has no criminal record.

[20] Mr. Hussey-Rodrigues was born and raised in Toronto by both of his parents. He is the second youngest of five children. He has two brothers and two sisters. His is a very close-knit and supportive family. All four of Mr. Hussey-Rodrigues’s siblings and his mother were present in court for his sentencing hearing. He has much other support as well. His son’s grandmother and two aunts, and his surety who is a long-time family friend, also attended the sentencing hearing in support.

[21] Mr. Hussey-Rodrigues has a five-year-old son. It was uncontested that for approximately nine months, he has been the primary caregiver and effectively a single parent to this child. The defence filed six letters on sentencing that relate to his parenting of his child, and his character. All six letters speak to exceptional single parenting of a high-needs child with developmental issues, in challenging circumstances.

[22] The first letter, dated February 26, 2024, was written by Lori Niedra, Child Protection Worker, and Luc Drouin, Child Protection Supervisor, of the Catholic Children’s Aid Society of Toronto (“CCAS”). The letter notes that Ms. Niedra has been working with Mr. Hussey-Rodrigues with respect to his son since January 2022. Mr. Hussey-Rodrigues has been cooperating with CCAS on a voluntary basis and has been consistently engaged with the agency’s expectations. CCAS has been involved to support the family in ensuring that all the child’s needs are met. When Mr. Hussey-Rodrigues first started working with CCAS, he was quiet and hesitant to share information regarding his role as a parent. Eventually, CCAS learned that he became a father at a very young age. Over the time he has been voluntarily working with the organization, CCAS workers have observed that Mr. Hussey-Rodrigues has: matured; demonstrated his commitment to his child; worked on various child-centered tasks such as improving the structure and routine in the home; increased his parenting skills; and gained confidence in his role as a father. He continues to work with CCAS to ensure that his son receives support for his developmental needs. The letter notes that Mr. Hussey-Rodrigues is a loving, responsible, and reliable father. He is a strong role model in his child’s life, one who has fostered a healthy child-parent attachment. At the time the letter was written, Mr. Hussey-Rodrigues had been the primary caregiver and single parent to his son for six months (now some eight or nine months). In this capacity, he has been able to provide the stable home environment and consistent routine that are essential for a child’s healthy growth and development. The authors of the letter have observed Mr. Hussey-Rodrigues place his son’s needs above his own. For example, he was successful in advocating to school administration for an exception to keep his son enrolled at the school despite having moved out of school boundaries. Mr. Hussey-Rodrigues has been able to maintain the child’s regular attendance despite lengthy travel each day.

[23] Mr. Hussey-Rodrigues disclosed these criminal charges to his CCAS workers. Ms. Niedra concluded the CCAS letter as follows: “With my deepest respect to the judicial process, I am hopeful that there might be consideration around addressing these charges in a manner that allows Nicholas to maintain continued care of his child.”

[24] The defence also filed two letters from the child’s kindergarten teachers. The first, dated February 26, 2024, was written by teacher Graham Seater, MA OCT. Mr. Seater has been the child’s teacher since September 2023. He notes that Mr. Hussey-Rodrigues ensures that his son is at school on time and that his attendance is consistent, always with proper clothing and food for the day. Mr. Hussey-Rodrigues has participated in every meeting requested by the teachers. He has taken their feedback with respect to helping the child’s development and progress. Mr. Seater has been impressed with Mr. Hussey-Rodrigues’s patience whenever his son has displayed behavioural challenges. He plays an active role in his son’s education. In Mr. Seater’s view, Mr. Hussey-Rodrigues clearly has the child’s best interests in mind. The teacher observed that the child has a very difficult time with transitions. He notes that consistency is important for a child at this age, and believes that “keeping him in his father’s care is the best way to ensure that . . . [he] gets the love and care he needs at this pivotal point in his development.”

[25] The second teacher letter, authored by Nellie Hollywood, dated February 20, 2024, similarly speaks of Mr. Hussey-Rodrigues’s dedication to his son’s well-being. It speaks of his attentiveness to his son’s needs including the need to be at school consistently and punctually, and his day-to-day welfare. Ms. Hollywood observes that it is essential that the child continue to have a loving and affectionate relationship with his father.

[26] Three further letters were filed by the defence. One was written by Madison Short-Appleton, a close family friend and one of Mr. Hussey-Rodrigues’s residential sureties. Ms. Short-Appleton has known Mr. Hussey-Rodrigues for ten years. She has observed that Mr. Hussey-Rodrigues, as primary caregiver to his son, is a very loving and caring father. In addition to ensuring that the child’s basic needs are met, he consistently meets his son’s emotional, physical, and mental needs. She opines that “it is in Nicholas and his sons [sic] best interest that Nicholas be given the opportunity to continue to be the consistent and supportive parent that he is as well as continue to grow and be an acting member of society . . .”

[27] Mr. Hussey-Rodrigues’s older sister, Destiny Rodrigues, wrote that being a father has changed her brother’s life for the better. Since his son was born, Mr. Hussey-Rodrigues has become more mature, more motivated, more positive, and better at prioritizing. Ms. Rodrigues notes that his child is the center of her brother’s life, and that he is a remarkable father. In her opinion, having his father in his life is the cornerstone of her nephew’s emotional development; one that will help him understand healthy interactions, communication, and will contribute to his self-esteem, emotional intelligence, and overall well-being. Becoming a parent also prompted Mr. Hussey-Rodrigues to reflect on how he saw himself and his role in the world. This, in turn, brought positive changes into his life and all of his relationships. Ms. Rodrigues says that Mr. Hussey-Rodrigues is a source of support for family members and friends. He helps her with her children, and helps their grandparents with errands every week. Ms. Rodrigues pledges her support to keep her brother on track.

[28] Finally, Kerry Johnson, maternal grandmother of Mr. Hussey-Rodrigues’s son, wrote a letter praising his parenting, and how he cares so much for and is so helpful to others.

[29] Mr. Hussey-Rodrigues lives with two residential sureties who are his sister-in-law and Ms. Short-Appleton, as well as his son and his two-year-old niece. In addition to caring for his son, Mr. Hussey-Rodrigues cooks and completes domestic chores in the home.

[30] Mr. Hussey-Rodrigues has limited education. He attended school until grade nine, but did not complete the year. There was an incident between him and another student, and he was suspended for the rest of that school year. He lost his motivation to attend school while suspended, and never resumed his formal education.

[31] Through counsel, Mr. Hussey-Rodrigues expressed a desire to get his high school diploma or complete high school equivalency through a college as a mature student. He has also indicated he is interested in pursuing further education. One of his sureties has made some inquiries into options for doing so. However, for the last several years, Mr. Hussey-Rodrigues has been focused on parenting his high-needs child, who only recently started attending school. Mr. Hussey-Rodrigues has also not wanted to resume his formal education only to be interrupted by having to step into custody as a result of these charges. He does want to pursue his education once these charges and sentence are behind him.

[32] Mr. Hussey-Rodrigues’s employment has been in transient labour, when odd jobs of that nature have been available to him. His limited education, conditions of house arrest, and the demands of parenting a very young high-needs child have not allowed him to get better, more regular, or permanent work. Lately, Mr. Hussey-Rodrigues has been supporting himself and his child with occasional work he gets through one of his brothers. In addition, he has been receiving childcare benefit cheques for his son. Notwithstanding his limited income, Mr. Hussey-Rodrigues is not receiving social assistance. Going forward, he wants to work. He notes that parenting his child is his priority, so he will want to find work that allows him to take his son to and from school every day. His primary goal remains to be an active parent to his son, provide him with a stable environment, and to continue to provide him with the consistency in routine that children of his son’s age and developmental needs require.

V. AGGRAVATING AND MITIGATING CIRCUMSTANCES

(a) Aggravating Circumstances

[33] The most serious aggravating factor in this case is the gravity of the offences. Gun offences are serious crimes: Nur (SCC), at para. 6.

[34] Mr. Hussey-Rodrigues was in possession of a loaded prohibited handgun, a weapon “manufactured for the sole purpose of killing or seriously injuring human beings. It is not incidentally dangerous. Rather, its dangerousness is its very purpose. It is an instrument of death”: R. v. Beharry, 2022 ONSC 4370, at para. 19. And, “[h]e had no conceivable legitimate purpose in possessing it”: R. v. Elvira, 2018 ONSC 7008, at para. 12. Mr. Hussey-Rodrigues did not have a licence that had expired, nor any legal authorization for possessing this weapon under any circumstances. His possession of the handgun was not momentary or fleeting. It was concealed in a backpack on his person as he moved about the streets of this city.

[35] Moreover, Mr. Hussey-Rodrigues possessed the gun in public, on a summer’s evening, in a populated residential area. This was a place and time where people could be expected to be out and about on the street, in their homes, and in the park at the end of the street. There can be no doubt that Newbold Ave. and its adjacent street were residential streets, inhabited by civilians going about their daily lives. The presence of a loaded prohibited handgun in Mr. Hussey-Rodrigues’ backpack on Newbold Ave. on a summer’s evening put all of the residents of that street and neighbourhood and users of the park at risk of bodily harm or death.

[36] Possession of the handgun in these circumstances was extremely dangerous criminal conduct. The dangerousness of what Mr. Hussey-Rodrigues did here was well explained by Molloy J. in R. v. Ferrigon, 2007 CanLII 16828 (Ont. S.C.J.), at para. 25:

Guns are dangerous. Handguns are particularly dangerous. Loaded concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equally importantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled – a way of life that respects the rule of law to ensure the peace and safety of those who live here.

[37] In addition, Mr. Hussey-Rodrigues ran from police, knowing that he was in possession of a loaded handgun. This further increases the seriousness of his offences for two reasons, as outlined in Morris, at para. 170:

First, fleeing from the police while in possession of a loaded handgun increases the risk of a confrontation, during which the weapon may be discharged deliberately, or even accidentally. Either substantially increases the risk to the public. Second, [the] decision to run while armed with a loaded handgun endangered the safety of the police officers who were engaged in the lawful execution of their duty. Doing so aggravates the seriousness of the offence.

See also R. v. Mansingh, 2017 ONCA 68, at para. 24.

[38] The Crown filed Toronto Police Service Shooting Statistics as an exhibit on sentence. This document demonstrates that already, only one quarter of the way into 2024, there have been more shootings and gun discharges in Toronto this year than in any of the four preceding years by a significant margin. It also demonstrates that already this year, there have been almost as many deaths and injuries by gunshot as in each of the four preceding years except for one. There can be no doubt that gun violence is a serious and concerning problem in Toronto. Guns are a dangerous scourge in this city.

[39] I am permitted, in sentencing, to take into account “the needs and current conditions of and in the community,” and balance these carefully with “the societal goals of sentencing” and “the moral blameworthiness of the offender and the circumstances of the offence”: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 91-92. However, that a particular offence occurs frequently in a particular community is not in itself an aggravating factor: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 90, 102. Rather, a sentencing judge may consider the prevalence of the offence at issue “in balancing the various sentencing objectives, including the need to denounce the unlawful conduct in question in that place and at the same time to deter anyone else from doing the same thing”: Lacasse, at para. 90, see also para. 102. This consideration may not lead to a sentence that is demonstrably unfit: Lacasse, at para. 90.

[40] Accordingly, I do not consider the prevalence of gun violence in the city of Toronto to be an aggravating factor. Rather, I find that it underscores the need for denunciation and deterrence to be the paramount objectives in sentencing Mr. Hussey-Rodrigues in relation to possession of a loaded prohibited firearm in Toronto.

(b) Mitigating Circumstances

[41] Mr. Hussey-Rodrigues is a youthful first offender. He had only just attained adulthood at the time of these offences, which he committed at 18 years of age. He is only 23 years old now. He has no prior criminal record, and no prior contact with the criminal justice system. These are meaningful mitigating factors.

[42] I also give Mr. Hussey-Rodrigues some credit in mitigation for resolving these charges. I was not provided with a detailed timeline for how this case evolved. However, Crown counsel did refer to the fact that Mr. Hussey-Rodrigues brought a Charter application, which was litigated and dismissed. It was only then that he decided to resolve the charges. In my view, what is effectively a plea of “no contest,” offered after an unsuccessful Charter challenge, is not as mitigating as a full and unequivocal guilty plea at an earlier stage of proceedings.

[43] I come to this conclusion for two reasons. First, the timing of this resolution has not saved as much court time or other justice system resources as a guilty plea before any issues were litigated. Second, Mr. Hussey-Rodrigues pleaded not guilty, while not challenging the Crown case or calling evidence, and invited me to find him guilty. This does not demonstrate an acceptance of responsibility for the offences, nor does it indicate any remorse. Much of the value of an unequivocal guilty plea in mitigation stems from its value as a signal of remorse and acceptance of responsibility. That is absent here. That having been said, Mr. Hussey-Rodrigues’s resolution benefits the administration of justice. It has had the salutary effect of saving the Crown from having to expend the resources to prove the offences against him, and it saved the justice system from having to expend the resources to hold a trial. Mr. Hussey-Rodrigues is accordingly entitled to some credit in mitigation.

[44] Mr. Hussey-Rodrigues has close and supportive relationships with his family and a circle of close friends. These are people who wrote letters of support, who came to court, and who have pledged to continue to support him and encourage his rehabilitation. He has ongoing supervision and support from CCAS workers and his son’s teachers. I consider Mr. Hussey-Rodrigues’s excellent support network to be a protective factor in terms of his ability to maintain the progress he has made in the years since he committed these offences. I find it will help him continue to lead a pro-social, productive, and law-abiding life. This is a mitigating factor on sentencing.

[45] It is also mitigating that Mr. Hussey-Rodrigues has been on bail for just shy of five years. He was charged with an intimate partner violence related offence while on bail but, as I understand it, that charge remains outstanding. As a result, he is still presumed innocent in relation to it. As acknowledged by the Crown at the sentencing hearing, Mr. Hussey-Rodrigues has been on a strict house arrest bail for a long time, both before and after the new charge, without incident.

[46] It is not uncommon to speak of giving an offender “Downes credit” for time spent subject to restrictive conditions of bail: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at p. 331. However, “pre-trial bail is conceptually a mitigating factor” in assessing a fit sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108, citing R. v. Panday (2006), 205 C.C.C. (3d). Credit for the mitigating effects of house arrest bail on sentence falls within the discretion of the sentencing judge: Downes, at para. 37. It is to be assessed considering the length of time spent on bail, the restrictiveness of the conditions, their impact on the offender’s liberty, and how greatly they affect the offender’s ability to conduct normal relationships, employment, and other activity: R. v. Place, 2020 ONCA 546, at para. 20.

[47] Here, both counsel agree that Mr. Hussey-Rodrigues was subject to a restrictive house arrest bail from July 23, 2019 to May 28, 2021, a period of approximately 22 months; and again from July 2023 until the date of sentencing, May 13, 2024, a further period of approximately 10 months. In total, Mr. Hussey-Rodrigues lived under house arrest for a total of approximately 32 months, or two years and eight months.

[48] Sentencing judges are not required to quantify how much credit they are giving in mitigation for time spent subject to restrictive bail conditions. Doing so risks skewing the calculation of sentence: Beharry, at para. 34, citing R. v. Marshall, 2021 ONCA 344, at para. 53. I have not calculated a precise amount of Downes “credit” to attribute in this case. Instead, I have considered the time Mr. Hussey-Rodrigues spent on house arrest bail to be a mitigating factor, which I assessed alongside all of the other aggravating and mitigating factors in this case.

[49] Just under five years is an extremely long time for criminal charges to come to trial and be completed, while living under restrictive bail conditions. Mr. Hussey-Rodrigues was charged in July of 2019. His sojourn in the criminal courts will finally come to an end with this sentencing, in mid-May of 2024. As noted, he will have spent approximately 32 months (or about two years and eight months) of this time on house arrest. The lengthy delay in completing this matter not only resulted in a protracted period of restriction of Mr. Hussey-Rodrigues’s liberty under bail conditions, but it also impacted on his ability to parent his young son. It further resulted in him putting his life on hold in meaningful ways: he reasonably did not want to restart his formal education or seek out a better or more permanent employment situation while these charges and their uncertain disposition were hanging over his head. Caselaw has recognized that excessive delay which causes prolonged uncertainty for a defendant can be taken into consideration as a mitigating factor on sentence: R. v. Hartling, 2020 ONCA 243, 150 O.R. (3d) 224, at paras. 118-120; R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 59 O.A.C. 161, at para. 43. I do consider the delay and its resulting prolonged impact and uncertainty on Mr. Hussey-Rodrigues in this case to be mitigating.

[50] Perhaps the most significant mitigating factor is how much Mr. Hussey-Rodrigues has rehabilitated himself in the years since he was charged. This is demonstrated in how he has chosen to step up, take responsibility for his child, and become an exemplary parent. He has voluntarily undertaken to work closely with CCAS – something he obviously did not have to do – to improve his parenting skills and ensure that his son receives adequate support for his developmental needs. By all accounts, he has succeeded in creating a stable home with the consistent routines the child requires; in advocating for and securing the educational and other supportive resources demanded by the child’s developmental needs; in taking direction and guidance from CCAS and teachers; and in forging a loving and healthy child-parent attachment. This responsible, conscientious parenting by Mr. Hussey-Rodrigues has continued notwithstanding the challenges and limitations of being under house arrest, notwithstanding having little in the way of income or other financial resources, and even after becoming the primary caregiver and single parent to the child. Indeed, the evidence filed, particularly the letter from Destiny Rodrigues, speaks to the positive changes Mr. Hussey-Rodrigues has made in his life generally, and in all of his relationships. He is now a trusted source of help and support to others.

[51] Defence counsel argued that Mr. Hussey-Rodrigues is not the same person who committed these offences in 2019. I was not provided with any information or explanation for why Mr. Hussey-Rodrigues was in possession of a loaded prohibited handgun in a public place, nor with any information about who he was at that time or why. However, on all the evidence before me, I accept that defence counsel’s submission must be correct. The man who appeared before me for resolution and sentencing is a prosocial, engaged, and responsible member of a family and the community. The uncontested evidence is that he has matured significantly. He now presents as a person who understands that his actions have consequences for others. He is now a young man who avails himself of resources and supports to understand what actions cause what consequences, to choose positive outcomes, and to learn how to act ahead of time to give effect to the positive outcomes he desires. I find that Mr. Hussey-Rodrigues has chosen, and worked hard, to substantially rehabilitate himself.

[52] He has submitted, through his lawyer, that he wants to continue to do so. He wants to continue his education and secure gainful employment. He wants to continue to be a good father. Mr. Hussey-Rodrigues is on a path toward becoming a productive and law-abiding member of the community. He intends to continue on that path.

[53] In these circumstances, I consider Mr. Hussey-Rodrigues to pose a very low risk of future criminal offending. Indeed, Crown counsel acknowledged as much (although she took the position that any future offending, if it happened, could have very grave consequences, a point to which I will return below).

[54] Given Mr. Hussey-Rodrigues’s youth, his lack of a criminal record, his stable and supportive relationships in the community, his now well-established track record for rehabilitation, his intention to restart his education and seek employment, and his low risk for reoffending, there are real prospects for continued rehabilitation here. The sentence I impose on Mr. Hussey-Rodrigues must focus primarily on denunciation and deterrence as the paramount sentencing objectives, as required by the seriousness of the offences and governing caselaw. It must be a sentence that is punitive and significant enough to meaningfully denounce and deter the grave offences for which he has been found guilty. At the same time, rehabilitation is not irrelevant. The sentence I impose must not be so crushing as to destroy the rehabilitation he has already achieved or to destroy his real prospects for further rehabilitation. Mr. Hussey-Rodrigues’s rehabilitation and his further rehabilitative potential are mitigating factors on sentence.

VI. COLLATERAL CONSEQUENCES

[55] In addition to considering the relevant aggravating and mitigating factors, I must also consider the relevant collateral consequences of sentence.

[56] In R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, and R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, the Supreme Court recognized that a sentencing judge may take into account the collateral consequences of sentence and adjust the terms of a sentence accordingly, in order to ensure that a sentence meets the requirement of proportionality: see also R. v. Stanberry, 2015 QCCQ 1097, at para. 17. In Pham, at para. 11, the Court described collateral consequences as follows:

. . . the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender (s. 718.2 of the Criminal Code). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718 of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation.

[57] Collateral consequences may be considered by a judge to determine whether, as a result of sentencing, a disposition would have a more significant impact on an offender than if there were no such consequences: R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, at para. 20; Suter, at para. 27. The parity principle also animates the consideration of collateral consequences: Pham, at para. 11. Parity demands that like offenders in like circumstances should be sentenced alike: s. 718.2(b); Suter, at para. 48. Parity comes in here because collateral consequences may mean that a particular offender is no longer “like” offenders who are otherwise similarly situated, rendering a sentence unfit.

[58] Consideration of collateral consequences is comprehended within s. 726.1 of the Code. This provision mandates that sentencing judges consider “any relevant information” placed before the court by or on behalf of the Crown or the offender: R. v. R. A., [2022] O.J. No. 6057 (C.J.), at para. 36.

[59] Determination of the impact of collateral consequences on sentence is a very case and context-specific analysis in the circumstances of each offender and each case. The attenuating effect of collateral consequences will differ according to the individual circumstances: L.C., at para. 21; R. v. Dent, 2023 ONCA 460, at para. 125.

[60] The Court of Appeal for Ontario has recognized that collateral consequences of a sentence on an offender’s children, and on the offender themself, arising from separation from their children, is a relevant sentencing consideration: L.C., at para. 24; R. v. Kanthasamy, 2021 ONCA 32, at paras. 7-9; R. v. Simoes, 2014 ONCA 144, at para. 14. However, the exact weight to be given to the effects of a sentence on an offender’s children is a case-specific determination to be carefully assessed in the particular circumstances: Dent, at para. 125.

[61] Ultimately, whatever weight is given to the collateral consequences of sentence on an offender’s children, it may never be allowed to result in a disproportionate sentence. The principle of proportionality must always prevail in sentencing: Pham, at paras. 14, 16, 20; Stanberry, at paras. 17, 21, 24.

[62] The uncontested evidence filed on this sentencing hearing makes clear that Mr. Hussey-Rodrigues’s son will suffer if his father is incarcerated. The above-noted letters all indicate that the child has high needs and special developmental issues. They all indicate that he needs consistency, continuity and routine. They all indicate that Mr. Hussey-Rodrigues is his primary caregiver, and that he is doing an exemplary job of meeting the child’s needs in that capacity. They all indicate that it would not be good for this child’s well-being or his development if his father were incarcerated.

[63] In addition to the letters filed, defence counsel made a further submission on point in oral argument. He advised that one of the teachers told him that the child overheard a conversation between his father and a surety about the possibility of Mr. Hussey-Rodrigues having to step into custody. The teacher reported that the child was absolutely distraught. The teachers had to talk to the child about it. They called Mr. Hussey-Rodrigues in for a meeting to discuss strategies for managing the child’s fear and anxiety over the possibility of losing his father to jail. While this defence submission was double hearsay, the Crown did not challenge its veracity, nor take issue with me receiving it. The double hearsay nature of this evidence might normally cause me to give it little weight. But in these circumstances, I do credit the account. As a matter of common sense and experience, I accept that a young child with high needs, and who has difficulty with transitions, would be very afraid of losing the primary caregiving parent with whom he has a loving and bonded relationship.

[64] The Crown acknowledged that the effects of incarceration on Mr. Hussey-Rodrigues and his son are collateral consequences that I may consider. In the Crown’s submission, however, they form but one of many factors that must go into the determination of a fit, fair, and proportionate sentence. The Crown submitted that I may not allow the negative impact of incarceration on the child to overwhelm all other necessary considerations that go into the determination of a proportionate disposition. I must also consider the gravity of the offence and the aggravating factors present in this case. Ultimately, the sentence imposed must be proportionate and adequately reflect the primary sentencing objectives of denunciation and deterrence in the circumstances of this case. I agree. Our Court of Appeal in Dent, at paras. 124-126, has clearly directed sentencing judges in precisely these terms.

[65] The evidence as a whole satisfies me that it would be a significant loss for his son if Mr. Hussey-Rodrigues were sentenced to serve real jail time. This child has an excellent and loving father who is doing his utmost for him. Mr. Hussey-Rodrigues ensures that his son, who has special challenges, is receiving the help he needs. He gives the child love, care, concern, and a good and stable home. These efforts and this child would be harmed if Mr. Hussey-Rodrigues were separated from his son by incarceration. Separation from his son would certainly magnify the severity of the sentence for Mr. Hussey-Rodrigues. In addition, I consider that the collateral consequence of separation of this father and son has broader impact as well. In my view, it is in society’s interest for Mr. Hussey-Rodrigues to be able to continue to parent and support his child.

[66] I have taken the collateral consequences in this case into account to ensure respect for proportionality, individualization of sentence, and the parity principle. Like Healy J. [as he then was] held in Stanberry, at para. 26, “[m]y justification for doing so is to ensure that the collateral consequences do not disproportionately magnify the severity of the sentence.” However, I have also considered the primary sentencing objectives of denunciation and deterrence, the gravity of the offence and the moral blameworthiness of the offender, and all the relevant aggravating and mitigating factors, to determine a fit and fair sentence.

VII. APPLICATION OF THE RULE IN KIENAPPLE

[67] Before moving on to consider the appropriate sentence in this case, I pause to consider the application of the rule against multiple convictions established in Kienapple v. R., [1974] 1 S.C.R. 729. Kienapple stands for the proposition that “where the same transaction gives rise to two or more offences with substantially the same elements, and an accused is found guilty of more than one of those offences, that accused should be convicted of only the more serious of the offences”: R. v. Lucas, 2010 CanLII 29086 (Ont. S.C.J.), at para. 9. For this principle to apply, the two offences must share both a factual and a legal nexus: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at p. 491.

[68] The question here is whether Mr. Hussey-Rodrigues can be convicted under both s. 95(1) and s. 92(1) for possession of the same loaded prohibited firearm, without offending the rule in Kienapple.

[69] Courts have diverged on this issue.

[70] A number of cases have found that the two offences do not share an adequate legal nexus to trigger a Kienapple stay: R. v. Saikaley, 2013 ONSC 2699, at paras. 24-25, 34; R. v. Le, 2014 ONSC 4288, at paras. 16-18; R. v. Boussoulas, 2015 ONSC 1536 at paras. 13-15, aff’d on other grounds 2018 ONCA 222, 407 C.R.R. (2d) 44. This is because the essential elements of the offences under ss.92(1) and 95(1) are not identical. Section 92(1) requires that the offender be in possession of the firearm knowing its possession is unauthorized, but does not require that the firearm be loaded or be located with readily accessible ammunition with it. By contrast, s. 95(1) does not require knowledge that the possession is unauthorized, but does require that the firearm be loaded or have readily accessible ammunition at hand.

[71] In other cases, where the unauthorized possession of the same prohibited or restricted firearm grounded findings of guilt under both s. 95(1) and s. 92(1), courts have found that convictions for both would offend the Kienapple principle: R. v. Thavakularatnam, 2018 ONSC 2380, at para. 30; R. v. Brown, 2020 ONSC 6355, at paras. 11-12; R. v. Creary #1, 2021 ONSC 4935, at paras. 52-53; Beharry, at para. 51; R. v. Yizhak, 2023 ONCJ 95, at paras. 3, 32; R. v. Lambert, 2021 BCSC 2199, at para. 2. In many of these cases, the Crown agreed that the s. 92(1) conviction should be stayed under Kienapple, or the issue was apparently not hotly contested.

[72] In this case, the defence submits that the s. 95(1) and the s. 92(1) offences arise from the same factual underpinning, and that the legal requirements of the two offences are substantially similar. The defence seeks a stay of conviction for the s. 92(1) offence under Kienapple. The Crown submits that the two offences are legally different and accordingly there is no legal nexus between them. The Crown argues that there should be no Kienapple stay.

[73] This is something of a technical issue here: Lucas, at paras. 7-8. Both parties agreed that the overall sentence imposed should not be impacted, regardless of whether the rule in Kienapple applies. I find that this is so. If I were to sentence Mr. Hussey-Rodrigues for both offences, the sentences would run concurrently. The overall sentence would be the same: Lucas, at para. 14.

[74] Nevertheless, the question is worth resolving because Mr. Hussey-Rodrigues is entitled to operation of the rule against multiple convictions if it applies in his case.

[75] It is clear to me that there is a factual nexus between the two offences. Both rely on possession of the same loaded gun, carried in the same backpack, on the same day, at the same time, by the same person, with the same indicia of knowledge and control: Lucas, at para. 9. However, the question of whether there is a legal nexus between the two offences is more challenging to answer. I adopt the decision of Nordheimer J. (as he then was) on this issue in Lucas, at paras. 11-13:

I recognize that the element of knowledge in the offence of possession of a firearm knowing that one does not have a licence for the firearm could be said to be an added and distinct element of [that offence] when contrasted with the offence of possession of a firearm with readily accessible ammunition. While that might suffice from a technical point of view to distinguish the offences, given the circumstances here, it would be difficult, from a common sense point of view, to conclude that the elements of the two offences are not “substantially the same.” It is the possession of the firearms that is the gravamen of [both] offences.

In order to resolve this issue, it is helpful to repeat the reason for the Kienapple principle. In Prince, Dickson C.J.C. identified the rationale for the principle, at p. 42:

. . .Canadian courts have long been concerned to see that multiple convictions are not without good reason heaped on an accused in respect of a single criminal delict.

If one is true to that rationale then it seems to me that, in this situation, it is appropriate to apply the principle since the same conduct that the law aims to punish is involved in both offences, that is, the unlawful possession of a firearm. The unlawful conduct is made that much more serious by the unlawful possession of ammunition along with the firearm. If a person is convicted of possession of a firearm with readily accessible ammunition, there does not appear to be any compelling reason to also convict that same person of knowing that he did not have a licence for the [firearm]. I conclude, therefore, that the appropriate result is that [conviction] on the more serious [offence] of possession of a firearm with readily accessible ammunition . . . should be entered, but that [a stay] should be entered on the lesser [offence] of possession of a firearm without a licence. . . .

[76] In my view, Mr. Hussey-Rodrigues committed a single criminal delict: unauthorized possession of a loaded prohibited firearm. He should not be convicted of two separate criminal offences, both of which aim to punish the same conduct. There will be a stay of the less serious offence of possession of a firearm without a licence under s. 92(1) under the rule in Kienapple. A conviction will be entered for the more serious offence under s. 95(1).

VIII. FIT, FAIR, and PROPORTIONAL SENTENCE IN ALL THE CIRCUMSTANCES OF THIS CASE

(a) The Applicable Range of Sentence

[77] I have come to the conclusion that the applicable range of sentence in this case is somewhere between upper reformatory (just under two years) to three years in penitentiary. I will explain.

[78] Offenders who commit gun possession offences in violation of s. 95 of the Criminal Code may do so in a wide range of circumstances. At one end of the spectrum “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade,” whose conduct is “truly criminal . . . and poses a real and immediate danger to the public”: Nur (CA), at para. 51. At the other end of the spectrum stands a person whose possession is in the nature of a regulatory offence, “the otherwise law-abiding responsible gun owner” who, for example, “has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence”: Nur (CA), at para. 51.

[79] Mr. Hussey-Rodrigues’s unauthorized possession of the loaded handgun in this case was not regulatory in nature. He was not an “otherwise law-abiding responsible gun owner,” for whom this was a careless or momentary lapse. Unlike a s. 95 offender at the regulatory end of the spectrum, Mr. Hussey-Rodrigues’s offending posed great risk to others: Nur (CA), at para. 51. As such, it was conduct that fell toward the true crime end of the spectrum: R. v. Smickle, 2013 ONCA 678, 311 O.A.C. 288, at para. 30.

[80] But neither was Mr. Hussey-Rodrigues an “outlaw” who carried a loaded prohibited firearm in public “as a tool of his criminal trade.” He has no prior criminal record. There is no evidence that he was using the gun in aid of other criminal activity, such as to protect a drug stash; or even that he was engaged in any other criminal activity.

[81] In other words, while Mr. Hussey-Rodrigues committed a true crime, it was not one that placed him at the most serious end of the s. 95 spectrum. What then is the appropriate range of sentence for this kind of true crime s. 95 offence?

[82] Both counsel filed voluminous books of authority on this sentencing hearing. I have carefully reviewed and considered all cases filed, although I do not intend to refer specifically to most of them. The authorities demonstrate a wide range of sentences for s. 95 offences, running from 18 months in provincial jail (R. v. Filian-Jimenez, 2014 ONCA 601) to seven years in penitentiary (R. v. Dehaney, 2012 ONSC 3014) and beyond, and everything in between. This variability makes sense given the wide range of circumstances in which these offences can be committed, and the different people who commit them. However, careful review of the sentencing authorities satisfies me that gun possession offences similar to this one will typically attract sentences of between upper reformatory and three years in penitentiary.

[83] In Nur (SCC), at para. 82, the Supreme Court held that for s. 95 offenders at the “outlaw” end of the spectrum, and perhaps for most s. 95 offences, a sentence of three years’ imprisonment may be appropriate. For a person further along the spectrum, “whose conduct is less serious and poses less danger . . . three years’ imprisonment may be disproportionate, but not grossly so”: Nur (SCC), at para. 82. Finally, for a s. 95 offender at the regulatory end of the spectrum, a three-year sentence may be grossly disproportionate: Nur (SCC), at para. 82.

[84] In Nur (CA), the Court of Appeal held that a proper balancing in all the circumstances of that case could have resulted in a fit sentence of a maximum reformatory sentence, or up to a three year penitentiary sentence: Nur (CA), at para. 109. The circumstances in Nur were similar to the circumstances of this case. Mr. Nur was convicted of possessing an unauthorized loaded and prohibited gun. He ran away from police outside a community centre with the gun hidden in his coat, and threw it to the ground as he ran. Mr. Nur was a 19-year-old first offender at the time of the offence; and 21 years of age at the time of sentencing. He came from a close and supportive family.[^1]

[85] In Smickle (2013), the Crown appealed a one-year conditional sentence imposed on a youthful first offender for a possession of a loaded prohibited firearm contrary to s. 95. The Court of Appeal allowed the appeal and put the matter over for further submissions as to fit sentence given the passage of time since the sentencing hearing. But the court did offer some guidance in its 2013 decision as to what would be an appropriate sentence. Recognizing that Mr. Smickle’s conduct fell “squarely at the ‘true crime’ end of the s. 95 spectrum” described in Nur, the Court of Appeal held that a fit sentence would have been one “approaching or at the maximum reformatory sentence (two years less a day)”: Smickle (2013), at para. 30. It went on to hold that “[a] sentence of three years [would be] excessive and perhaps sufficiently excessive to warrant appellate intervention”: Smickle (2013), at para. 32.

[86] After hearing further submissions, in Smickle (2014), the court substituted a maximum reformatory sentence of two years less a day for a one-year conditional sentence given at first instance. The court reaffirmed that s. 95 offences require denunciatory sentences, often penitentiary sentences. But it went on to hold that “[o]ffences 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”: Smickle (2014) at para. 19.

[87] A number of cases have held that the applicable range of sentence for s. 95 offences is three to five years. However, this range is typically applied where the offence is more toward the “outlaw” end of the spectrum, as when the firearm is related to another criminal offence. As Schreck J. noted in Beharry, at para. 31:

The well-established three-to-five-year range that is often mentioned in s. 95 sentencing cases applies in situations where “the use and possession of the gun is associated with criminal activity, such as drug trafficking”: R. v. Graham, 2018 ONSC 6817, at para. 48; R. v. Marshall, 2014 ONCA 692, at paras. 47-48; Nur (SCC), at para. 82. Lower sentences in the upper reformatory or lower penitentiary range can and have been imposed in cases in the “middle of the spectrum,” that is, where the firearm is not possessed in connection with other criminal activity: R. v. Smickle, 2013 ONCA 678, 2014 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Johnson, 2022 ONSC 2699, at para. 38; R. v. Shomonov, 2016 ONSC 4015, at para. 12; R. v. Downey, 2017 ONCA 789, at paras. 9-12; R. v. Dalton, 2018 ONSC 544, at para. 56; Filian-Jimenez, at para. 2; R. v. Kongolo, 2022 ONSC 3891, at para. 74; Boussoulas (SCJ), at para. 22. [See also R. v. Marier, 2023 ONSC 5194, at paras. 117-118; Yizhak, at paras. 21 – 23]

[88] I am satisfied that s. 95 offences committed in circumstances like this (true crimes but not at the outlaw end of the spectrum), by offenders like Mr. Hussey-Rodrigues (youthful first offenders with other mitigating factors), typically attract a sentence of between upper reformatory and three years in penitentiary.

(b) Locating Mr. Hussey-Rodrigues and this Offence Within the Applicable Range

[89] I find that the fit and appropriate sentence in all the circumstances of this case is two years less a day. When credit for pre-sentence custody is deducted, Mr. Hussey-Rodrigues’s net sentence will be two years less 24 days.

[90] The offence is grave, and Mr. Hussey-Rodrigues has real moral blameworthiness in respect of it. He knowingly carried a loaded, prohibited firearm in public. He ran from police, knowing that he was in possession of that firearm. In so doing, he put members of the public, the police, and himself, at risk of being shot and injured or killed. The sentence must be punitive enough to be deterrent and denunciatory.

[91] At the same time, there are significant mitigating factors here. Mr. Hussey-Rodrigues is a youthful first offender with significant supports, who has been subject to house arrest for 32 months, and who has meaningfully rehabilitated himself and intends to continue to do so. I believe that he will remain on his current law-abiding and prosocial path, and that he will continue to rehabilitate. I have found that he poses a low risk of re-offending. These mitigating factors favour a sentence toward the low end of the range.

[92] Further, Mr. Hussey-Rodrigues is entitled to credit for pre-sentence custody. He spent 15 real days in jail before sentencing. I give him credit for this time at the Summers rate of 1.5:1, for a total of 23 days’ credit.

[93] The restraint principle also enters into my consideration of where within the range a fit sentence lies in this case. As the Court of Appeal recognized in Morris, at para. 130:

A sentence of more than two years excludes the possibility of probation: Criminal Code, s. 731. If the sentencing judge determines that the range of sentence for the particular offence and offender includes a two-year sentence and that probation would assist the offender’s rehabilitation, the restraint principle, favours imposing a sentence of no more than two years, even if a somewhat longer period of incarceration would also fall within the appropriate range.

[94] I have considered the matter, and come to the conclusion that probation would assist Mr. Hussey-Rodrigues’s rehabilitation. He has done much to rehabilitate himself since he was charged. But there is more work for him to do. Despite his intention to complete his high school or equivalency and further his education, and his intention to find permanent employment, he has not yet done these things. I do not fault Mr. Hussey-Rodrigues for this. I understand that he has been preoccupied with raising and caring for his young son; that the limitations of house arrest have made these pursuits more challenging; and that the uncertainties arising from his outstanding charges acted as a disincentive to embark on major new life initiatives. However, more education and permanent employment will be important steps toward Mr. Hussey-Rodrigues’s ongoing and full rehabilitation. In my view, the supervision, guidance, and support that would be available to him under a probation order would assist him in achieving these goals. In addition, formalizing his currently voluntary cooperation with CCAS might also have some salutary benefits toward rehabilitation. This could also be effected through a probation order. The rehabilitation that can continue progressing through probation has the potential to add long-term safety for the community: Morris, at para. 182.

[95] That probation would be available if Mr. Hussey-Rodrigues is sentenced to two years less 24 days is a factor that helps satisfy me that a sentence of that duration is fit and proportionate.

(c) The Appropriateness of a Conditional Sentence Order

[96] Having determined that the appropriate sentence for Mr. Hussey-Rodrigues is two years less 24 days, I must now consider whether that term of imprisonment could be served in the community under a conditional sentence order: Criminal Code, s. 742.1. This is an important consideration because “[t]he restraint principle favours conditional sentences over incarceration if a conditional sentence is consistent with the proportionality principle”: Morris, at para. 125, citing R. v. S. (R.N.), 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21; see also Morris, at paras. 180-182.

[97] After giving the matter much consideration, I have come to the conclusion that the appropriate sentence in all the circumstances of this case is a punitive conditional sentence of two years less 24 days, followed by three years of probation.

[98] I am satisfied that the requirements of s. 742.1 of the Code, as interpreted by the Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 46, and subsequent caselaw, have been met in this case. First, as already explained, I am satisfied that the appropriate sentence is under two years in duration. Second, s. 95(1) of the Code no longer carries a mandatory minimum sentence. Neither is it legislatively excluded from those offences for which a conditional sentence may be given under the terms of s. 742.1 as recently amended: Morris, at para. 126.

[99] Third, I am satisfied as a condition precedent to ordering a conditional sentence, that Mr. Hussey-Rodrigues would not endanger the safety of the community if he were sentenced to serve his time conditionally in the community. In making this determination, I have considered the risk of Mr. Hussey-Rodrigues re-offending, including by commission of further gun offences, if he were serving a conditional sentence. In my view, there is little to no risk of Mr. Hussey-Rodrigues re-offending if he were to serve his sentence in the community under restrictive conditions, while under the watchful eye of a conditional sentence supervisor, the CCAS workers, and his family and friends. He has no prior criminal record. He has spent five years in the community on bail, virtually without incident, and taken substantial steps toward rehabilitation on a voluntary basis during that time. As a result, Mr. Hussey-Rodrigues has a demonstrated five-year track record of being in the community with no re-offending. This suggests that there is little to no risk of him re-offending were he to serve his sentence in the community. The Crown acknowledged as much.

[100] I have also considered the potential gravity of any re-offending behaviour that Mr. Hussey-Rodrigues might engage in if he were serving his sentence conditionally in the community. The Crown argued that even though there is little risk of re-offending, any future gun offences he might commit could have extraordinarily grave consequences for the community. Accordingly, in the Crown’s submission, this is not an appropriate case for a conditional sentence order. The risk to the community is too grave, according to the Crown. I acknowledge that any gun offence Mr. Hussey-Rodrigues might commit in the future could indeed have very serious adverse consequences. However, on all the evidence, I have found that there is a very low risk of re-offending. Any re-offending could be grave, but I accept that Mr. Hussey-Rodrigues is very unlikely to re-offend. Having carefully considered the matter, I find that Mr. Hussey-Rodrigues will not endanger the safety of the community if he were serving his sentence conditionally.

[101] Fourth, I am satisfied that a conditional sentence is consistent with the fundamental purpose and principles of sentencing in all the circumstances of this case. In Proulx, the Supreme Court held that both denunciation and deterrence can be achieved through a conditional sentence if the conditions are sufficiently punitive and are appropriately tailored to achieve these goals in the circumstances of the case: Proulx, at paras. 22, 102, 105, 107. Cases dealing specifically with gun possession offences have also held not only that conditional sentences may be appropriate, but also that denunciation and deterrence may be achieved through properly crafted punitive conditional sentences: Morris, at para. 126; R. v. Desmond-Robinson, 2022 ONCA 369, at para. 13; R. v. Fabbro, 2021 ONCA 494, at para. 27; R. v. Cumsille, 2022 ONSC 121, at paras. 55-56; Beharry, at paras. 45-48.

[102] I am satisfied that a conditional sentence of two years less 24 days, with 12 months of house arrest, followed by 12 months less 24 days of curfew and other restrictive conditions, is punitive enough to provide the needed denunciation and deterrence. I agree with Corrick J. that “[c]onditional sentences are punitive. House arrest is a significant restriction on an offender’s liberty. An offender serving a sentence of imprisonment in the community is not eligible to earn remission, which could lead to a reduction in the sentence”: Cumsille, at para. 56.

[103] Although denunciation and deterrence are the paramount objectives of sentencing by reason of the nature of the offence, rehabilitation is also important. The objective of rehabilitation has as its purpose the reform of offenders, with “a view to their reintegration into society so that they can become law-abiding citizens”: R. v. Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para. 48. Successful rehabilitation is not only in the offender’s best interests, but it is also very much in the community’s best interests. Full rehabilitation is the best and final deterrent and guard against re-offending.

[104] Mr. Hussey-Rodrigues has shown himself capable of rehabilitation. But there is more work for him to do in that regard. He is committed to doing it. In my view, his rehabilitation would be best promoted by a conditional sentence. Being in the community under a conditional sentence order followed by probation will give Mr. Hussey-Rodrigues support and supervision from his conditional sentence supervisor for two years less 24 days, followed by support and supervision from his probation officer for a further three years. This means that Mr. Hussey-Rodrigues will be serving this sentence, subject to professional supervision, for 24 days shy of five years. During this time, Mr. Hussey-Rodrigues will be required to continue to work with CCAS as directed by them; to pursue his education; and to take such assessments, treatment, counselling, and training as directed by his supervisor or probation officer. During the non-house-arrest portion of his conditional sentence and his probation, he will be required to seek and maintain employment.

[105] I am also of the view that a custodial sentence would be harmful to Mr. Hussey-Rodrigues’s ongoing rehabilitation. Incarceration would pose a significant risk to the stability of the life he has built for himself in the five years since he was charged. It would disrupt his ongoing work with CCAS; undo the continuity, stability, and routine that are essential to his son’s development; and upend the stable domestic arrangements under which he has been living with his sureties, his son, and his niece. Mr. Hussey-Rodrigues has been living a positive law-abiding and prosocial life for five years. He assists his sister with her children, and his grandparents with grocery shopping and chores. He contributes to domestic life in his home, and financially supports his son. There are very real benefits to Mr. Hussey-Rodrigues, his son, his co-residents, his family, and society that result from him remaining in the community. Incarceration would put at risk the positive and laudable steps he has taken to build a life as a responsible father, family member, and member of society.

[106] In finding that incarceration would be harmful to Mr. Hussey-Rodrigues’s rehabilitation, I am influenced by the Court of Appeal’s decision in Smickle (2014). In that case, execution of the sentence of two years less a day substituted by the court was stayed. Mr. Smickle had served the conditional sentence imposed by the sentencing judge a year and a half earlier, and had substantially rehabilitated himself in the interim: Smickle (2014), at paras. 5, 19-20. The Court of Appeal implicitly accepted that incarceration would pose a significant risk to the stability of Mr. Smickle’s stable and prosocial life and, therefore, to his ultimate rehabilitation. The court affirmed that the objectives of denunciation and deterrence could be met without re-incarceration; that re-incarceration would not serve the other principles of sentencing given Mr. Smickle’s rehabilitation; and that re-incarceration would undermine the fundamental purpose of sentencing: Smickle (2014), at para. 20. Ultimately, it held that “[t]he community is best protected if the respondent continues along the rehabilitative path that he has followed in the five years that he has been before the court”: Smickle (2014), at para. 20.

[107] In this case, incarceration would be similarly disruptive to rehabilitation. A punitive sentence served in the community would similarly facilitate Mr. Hussey-Rodrigues’s continuation along the rehabilitative path he has been on. As such, a conditional sentence will best protect the community in these circumstances.

[108] In addition to rehabilitation, the other restorative justice objectives of sentencing will also be well-met by a conditional sentence in the circumstances of this case. In fact, in my view, these objectives can be better met by a conditional sentence than by a custodial sentence here. These sentencing objectives include rehabilitation, acknowledging the harm done to the community, and making reparations to the community. By possessing a loaded prohibited handgun on a residential street, Mr. Hussey-Rodrigues put the community at risk. It is right and fitting that his sentence acknowledge that risk to the community, and that he be required to make reparations to the community. Under this conditional sentence order, Mr. Hussey-Rodrigues will be under house arrest for the first 12 months of his sentence. He will not be able to leave his home save for a few carefully circumscribed reasons. His house arrest will operate as a visible sign and consequence of the risk to which Mr. Hussey-Rodrigues put the community. So too will the curfew to which he will be subject in the second year of his conditional sentence. In addition, he will be required to perform and complete 90 hours of community service during the three-year term of his probation order, at a rate of not less than 30 hours per year, supervised by the probation officer. In this way, Mr. Hussey-Rodrigues will make reparations to the community for the dangerous risks to which he exposed it.

[109] The collateral consequences to Mr. Hussey-Rodrigues and his son that would arise from the separation of incarceration contribute to my conclusion that a conditional sentence would be proportionate here.

[110] I have already found that it would have devastating consequences for the child if his father were sent to jail. This is a factor I can and do consider in determining whether a conditional sentence is fit, fair, and proportionate: R. v. T.A.P., 2014 ONCA 141, 307 C.C.C. (3d) 506, at paras. 5, 9. It is not in this child’s interests, given his special needs in particular, for Mr. Hussey-Rodrigues to be sent to jail. The pain and suffering to the child, and the setbacks to his development that would result, make the collateral consequences of incarceration of concern to society as a whole. It is not in the community’s interests to have a vulnerable special needs child set back by his father’s incarceration.

[111] Separation from his son would certainly magnify the severity of the sentence for Mr. Hussey-Rodrigues. For this reason, a sentence of incarceration would be significantly more punitive for him than it would be for an otherwise similarly situated offender who committed a similar offence. Individualizing this sentence to account for the impact of the collateral consequences of incarceration on Mr. Hussey-Rodrigues as the primary caregiver and single parent to a high-needs child means that a jail sentence would be disproportionately punitive. Equally, parity does not require incarceration here because Mr. Hussey-Rodrigues is not, by reason of the collateral consequences, similarly situated to offenders who would not have those consequences of incarceration.

[112] A final reason for which I am moved to impose a conditional sentence in this case is the direction in s. 718.2 of the Code not to deprive an offender of liberty if less restrictive sanctions may be appropriate in the circumstances, and to use all available sanctions other than imprisonment that are reasonable in the circumstances. A punitive conditional sentence of two years less 24 days followed by three years of probation is a less restrictive sanction than incarceration, and it is a sanction other than imprisonment. In my view, this is a sentence that is fit without requiring incarceration.

[113] Considering the gravity of the offence and the moral blameworthiness of the offender; all of the aggravating and mitigating factors in this case; the collateral consequence of the impact of incarceration on Mr. Hussey-Rodrigues and his son; the paramount sentencing objectives of denunciation and deterrence as well as the restorative justice objectives, especially rehabilitation; and the statutory and jurisprudential tests for a conditional sentence; I find that a punitive conditional sentence of two years less 24 days followed by a three year probation order is fit and proportionate.

IX. SENTENCE and TERMS OF CONDITIONAL SENTENCE ORDER and PROBATION ORDER

[114] Mr. Hussey-Rodrigues is sentenced to a conditional sentence order of two years less 24 days on the following terms:

1. You must keep the peace and be of good behaviour.

2. You must appear before the court when required to do so by the court.

3. You must report to a supervisor within four working days after the making of this conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor.

4. You must remain with the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor.

5. You must notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation.

6. For the first 12 months of your conditional sentence, you must remain within the four walls of your home at all times under conditions of house arrest with the following exceptions:

• for attendance at court as required;

• for meetings with your supervisor;

• for meetings with your child’s teachers or school administration;

• for meetings or appointments with Catholic Children’s Aid Society;

• to take your child directly to and from school;

• to take your child directly to and from educational or co-curricular programming;

• to go directly to and from medical, dental, or counselling appointments for you or your child;

• for one four hour period once a week to attend to personal needs and errands; and

• to go directly to grocery shopping for your grandparents, directly from the grocery store to your grandparents’ home, and directly from your grandparents’ home to yours once a week.

7. For the second 12 months less 24 days of your conditional sentence order, you must respect a curfew of being in your home between 10 p.m. and 6 a.m. every day, except for medical emergencies involving you, your child, someone you live with, one of your siblings, your parents, or your grandparents.

8. You must continue to work with the Catholic Children’s Aid Society as directed by them.

9. You must attend and participate in such assessment, treatment, counselling, therapy, or psychiatric care as directed by your supervisor.

10. You must sign such releases and consents as required to enable your supervisor to obtain information about any assessment, treatment, counselling or therapy, psychiatric care, and cooperation and participation with Catholic Children’s Aid Society.

11. You must pursue further education.

12. After the expiry of the period of house arrest, you must seek and maintain employment.

13. You must re-read the conditions in this order every week for the duration of the term of two years less 24 days.

14. You must have a copy of your conditional sentence order in your physical possession at all times when you are not inside your place of residence.

[115] For three years from the date of expiry of your conditional sentence, you will be subject to a probation order with the following conditions:

1. You must keep the peace and be of good behaviour.

2. You must appear before the court when required to do so by the court.

3. You must report to the probation service in Toronto within 72 hours of the completion of your conditional sentence.

4. You must notify the court or the probation officer in advance of any change of name or address and promptly inform the court or the probation officer of any change of employment or occupation.

5. You must notify your probation officer of your address and any proposed change of address before changing your address.

6. You must attend and participate in such assessment, treatment, counselling, therapy, including psychiatric, as directed by your probation officer.

7. You must continue to work with the Catholic Children’s Aid Society as directed by them.

8. You must sign such releases and consents as required to enable your probation officer to obtain information about any assessment, treatment, counselling or therapy, psychiatric care, and cooperation and participation with Catholic Children’s Aid Society.

9. You must continue to pursue further education, as directed by your probation officer.

10. You must seek and maintain employment.

11. You must complete 90 hours of community service during the three years of your probation order, at a rate of not less than 30 hours per year, and report the same with proof to your probation officer.

12. You must re-read the conditions in this order every week for the duration of the term of probation of three years.

13. You must have a copy of your probation order in your physical possession at all times when you are not inside your place of residence.

[116] Mr. Hussey-Rodrigues will also be subject to the following ancillary orders.

[117] There will be an order for the taking of bodily substances for the DNA databank under s. 487.051(3) of the Code. Mr. Hussey-Rodrigues has been convicted under s. 95(1), which is a secondary designated offence, as defined in s. 487.04, because it is an offence that carries a maximum penalty of five years or more and it was prosecuted by indictment. The Crown has applied for a DNA order. Mr. Hussey-Rodrigues does not oppose the order. I am satisfied that it is in the best interests of the administration of justice for the order to issue given the gravity of the offence, the risk to the public it posed, and the fact that the defence does not oppose the order.

[118] There will be an order under s. 109(2)(a) and (b) prohibiting Mr. Hussey-Rodrigues from possessing any firearm or weapon, ammunition, cross bow, prohibited device, or explosive substance for life.

[119] There will be an order for the forfeiture of the items seized by police, namely the firearm and the ammunition.

[120] The victim fine surcharge payable under s. 737(1) is waived pursuant to s. 737(2.1) (a). Mr. Hussey-Rodrigues has not been working full-time and is supporting himself and his son on the income from occasional part-time work and childcare benefit cheques. He will now serve the 12-month house arrest portion of his conditional sentence and be unable to leave his home for work. In these circumstances, I am satisfied that he is unable to pay on account of precarious financial circumstances.

J. R. Presser J.

Released: May 13, 2024

[^1]: In Nur, neither the Court of Appeal nor the Supreme Court of Canada decided to interfere with a sentence of 40 months’ imprisonment time served (pre-sentence custody of 20 months’ real jail time credited on a 2:1 basis). It should be recalled, however, that the Court of Appeal declined to “go through the exercise of determining what would be an appropriate sentence for the appellant in the absence of the mandatory minimum [which it ruled unconstitutional] and had he not served the equivalent of a 40-month sentence”: Nur (CA), at para. 6. Instead, the court affirmed the sentence imposed by the trial judge, holding that, “[a]s the trial judge effectively imposed a sentence of time served, there is no reason to alter that disposition”: Nur (CA), at para. 208. The Supreme Court affirmed the Court of Appeal on point: Nur (SCC), at paras. 5, 26. I do not understand Nur to stand for the proposition that, had Mr. Nur not been sentenced to time served, 40 months’ incarceration would have been a fit sentence for him. Rather, the Court of Appeal explicitly held that a fit sentence for Mr. Nur in all the circumstances would have been somewhere between maximum reformatory time and up to three years in penitentiary: Nur (CA), at para. 109.