COURT FILE NO.: CRIMJ(P) 21/1427 DATE: 20240513

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Carson M. Coughlin, for the Crown

– and –

DANIEL FAGAN Maurice J. Mattis, for the Accused

HEARD: February 1, 2024

REASONS FOR SENTENCE

Stribopoulos J:

Introduction

[1] On October 5, 2022, Mr. Fagan pled guilty before Justice Durno to a charge of possessing a loaded restricted firearm while not being the holder of an authorization or license to possess it, contrary to section 95(1) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] Justice Durno ordered the preparation of an Enhanced Pre-Sentence Report (EPSR) and adjourned the sentencing hearing. By the time the report became available, Justice Durno had retired.

[3] Under the authority of section 669.2(1) of the Criminal Code, the sentencing hearing ultimately proceeded before me. These are my reasons for sentencing Mr. Fagan for his offence.

Circumstances of the Offence

[4] At approximately 3:00 a.m. on July 1, 2020, Mr. Fagan and his girlfriend (at the time) were seated in her SUV, parked by the side of the road. They noticed a silver sedan that appeared suspicious. Mr. Fagan asked his girlfriend to drive away, and she did. However, the silver car followed them.

[5] The two vehicles sped onto Messina Avenue, a suburban street in Brampton. A surveillance camera located at a residence on that street recorded audio and video of what happened next.

[6] The audio recording captured the sound of two gunshots, followed by the appearance of Mr. Fagan's girlfriend's SUV and the silver car racing onto the screen. The silver vehicle overtakes Mr. Fagan's girlfriend's SUV and cuts it off at a bend in the road. No one exits the car, but Mr. Fagan extends his arm out of the SUV towards the silver car. There are then three muzzle flashes and the sound of three gunshots.

[7] Mr. Fagan then exits the SUV and runs away from the two vehicles. He extends his arm behind him in the direction of the silver car, and a further muzzle flash is visible, accompanied by the sound of another gunshot. After that, the surveillance recording captures Mr. Fagan shouting, "Go, go."

[8] In response, Mr. Fagan's girlfriend accelerates away in her SUV. The silver car chases after her vehicle. In the pursuit that followed, Mr. Fagan's girlfriend crashed her SUV, badly damaging it and injuring her.

[9] The police arrived at the scene and spoke with Mr. Fagan's girlfriend. She confirmed that he was the man who had been in the SUV with her and had fired the handgun on Messina Avenue. She informed police that she had first seen Mr. Fagan with the firearm about a month prior. His girlfriend provided the police with Mr. Fagan's name and address, which led to his arrest.

[10] The only firearm discharged that morning was the one fired by Mr. Fagan. Officers with the Forensic Identification Unit of the Peel Regional Police recovered five spent 40-calibre bullet rounds on Messina Avenue.

[11] In pleading guilty, Mr. Fagan acknowledged that during the events just described, he possessed a loaded 40-calibre handgun, which he was not authorized or licensed to have in his possession.

[12] Thankfully, none of the shots Mr. Fagan fired that morning appear to have struck anyone. It is unknown who occupied the silver sedan or their potential motivation.

[13] The police never recovered the firearm that Mr. Fagan discharged on the morning of these events.

Circumstances of the Offender

[14] Mr. Fagan was born in Toronto and is now 24. At the time of his offence, he was just 20. Mr. Fagan does not have a criminal record; he is a first offender.

[15] Mr. Fagan has five older half-siblings who are in their 30s and 40s and two stepsisters in their 20s. Mr. Fagan is the only child of his parents, who separated when he was four or five years old. Mr. Fagan's parents have maintained an amicable relationship since their separation.

[16] Mr. Fagan's parents are both originally from Jamaica. They immigrated to Canada in their 20s. Mr. Fagan's parents each enjoyed gainful employment throughout their adult lives. His mother currently works for the Peel Catholic School Board, and his father is now retired.

[17] Interviewed by the author of the EPSR, Mr. Fagan's parents both advised they were shocked by his arrest and were at a loss to understand why he would have possessed a loaded handgun. Each speculated that peer pressure might have played some role in his decision to do so.

[18] To the author of the EPSR, Mr. Fagan described his childhood in favourable terms. Following his parents' separation, he shared his residence between their homes in Brampton. Mr. Fagan's parents always met his needs. He enjoyed various recreational activities throughout his childhood, including family vacations. Mr. Fagan currently lives with his mother.

[19] Mr. Fagan described the suburban neighbourhoods he grew up in at his parent's homes in Brampton as quiet and mostly safe. The areas were predominantly white in the early years, but, according to Mr. Fagan, each became more diverse over time.

[20] In terms of his experiences with anti-Black racism, Mr. Fagan described them as an ever-present part of his life and something that had become normalized for him.

[21] Mr. Fagan reported having negative interactions with the police over the years, including being subject to random detentions and searches because he "fit the description" of a person police were looking for, "a Black male with a hoodie." He has experienced police stops and frisks while walking down the street and while riding in a car with his Black peers. Mr. Fagan described having similar experiences while at high school, where police officers assigned as resource officers routinely stopped and questioned him.

[22] Mr. Fagan described one interaction with the police as especially traumatic. It involved four police officers; he described one of the officers tasering him even though he had his hands up at the time. The taser prongs lodged in his body required the attendance of an ambulance to remove them.

[23] Mr. Fagan advised the author of the EPSR that because of these negative experiences, he came to distrust the police and view them as "the opposition."

[24] To the author of the EPSR, Mr. Fagan described his school years as "hard times." He had difficulty focusing and completing his schoolwork and acknowledged sometimes being disruptive in class. He recalled his teachers, who were almost all white, treating him like a "burden," and some of them telling him, "You won't make it far" and "You're not going to graduate." He had similar negative experiences in elementary and high school.

[25] Over his objections, his high school placed Mr. Fagan in the applied stream of studies. According to Mr. Fagan, school administrators told him that the applied stream was more suitable for his learning challenges and grades. However, he noted that most other students in the applied stream were also Black. They were told to pursue a trade or a career in construction rather than aspiring to attend university.

[26] Mr. Fagan enjoyed playing football in high school. However, he stopped in grade 12. Mr. Fagan explained doing so because once he was in the applied stream, he was ineligible for a university football scholarship. He saw his experience as similar to that of many other Black students in the applied stream who also gave up on their dreams of pursuing football for the same reason.

[27] Mr. Fagan reported to the author of the EPSR that he experienced bullying during his school years, which he attributed, in part, to being Black. He reported receiving disproportionate discipline if he stood up for himself by speaking up or becoming physical with other students. As a result, he had multiple suspensions during his school years.

[28] In retrospect, Mr. Fagan attributed many of his negative experiences during his school years as likely the result of anti-Black racism.

[29] Thankfully, Mr. Fagan's high school experience was not all negative. During his final year, he completed a cooperative placement at an elementary school, where he assisted students with special needs. After completing his placement, he volunteered at that same school where he coached students in flag football. Mr. Fagan's contributions during his placement and the volunteer coaching he undertook were received positively by students, teachers, and school administrators. He was liked and respected by everyone and described as patient, understanding, and naturally able to form connections with the students.

[30] Mr. Fagan has remained in contact with the educational resource worker who oversaw his cooperative placement. The worker has encouraged Mr. Fagan to pursue a career in education because of his talents in working with youth.

[31] Despite the challenges he faced during his school years, Mr. Fagan graduated from high school. Since his release on bail, he has completed the first year of a two-year college program in advertising, marketing, and communication online. After completing his sentence, Mr. Fagan hopes to return to college to complete that program.

[32] Over the years, Mr. Fagan has enjoyed a positive work record. In high school, he had part-time employment in the food services industry. At the time of his arrest, he was working full-time as a restaurant line cook. After his arrest, his restrictive release conditions precluded him from working. However, after the release terms were relaxed, Mr. Fagan obtained full-time employment with an environmental service company, where he remains employed and earns a very good hourly wage.

[33] Additionally, in 2022, Mr. Fagan began his own catering business, initially working out of his mother's home but more recently using the kitchen of a restaurant in Toronto. Mr. Fagan aspires to grow that business and hire employees.

[34] Mr. Fagan advised the author of the EPSR that in high school, he made friends with other Black peers. He explained doing so because he felt more accepted and comfortable around them. Mr. Fagan acknowledged that some of these friends were involved in criminal activity. Although he found their involvement in crime problematic, he struggled to reconcile that with his belief that they were still "good people."

[35] Mr. Fagan reported to the author of the EPSR that four of his Black friends had died because of gun violence. The deaths of his friends in that way made him fearful, anxious, and paranoid. Mr. Fagan explained that his friend's deaths caused him to believe his life was at risk, even though he did not have any conflict with anyone and was not involved in criminal activity.

[36] Mr. Fagan told the EPSR author that he obtained the handgun to feel more secure, that it was for his self-protection, and that he never meant to use it to harm anyone. He expressed remorse for his actions to the report's author, his mother, and the educational resource worker from his high school (with whom he remains in contact). Mr. Fagan did the same in his comments to the court at the end of the sentencing hearing.

[37] Since his arrest, Mr. Fagan has struggled with feelings of anxiety and depression, mainly the result of the charge and the prospect of receiving a custodial sentence. He described the 14 days he spent at the Maplehurst Correctional Complex in July 2020, during the height of the Covid pandemic, as "hell."

[38] Those who know Mr. Fagan best, his mother, father, and one of his stepsisters, each attest to his good character. They described him to the EPSR author in positive terms, calling him "caring," "loving," and as having a "heart of gold." They each expressed concern at the prospect of Mr. Fagan's incarceration. His mother told the EPSR author, "He's not cut out for jail."

The Positions of the Parties

[39] The parties agree on the ancillary orders the court should issue as part of sentencing, including a DNA order and a weapons prohibition order under section 109 of the Criminal Code, for ten years and life, and the victim surcharge of $200.

[40] Additionally, the parties agree that Mr. Fagan is entitled to enhanced credit for his time spent in pre-sentence custody from July 1, 2020, until his release on bail on July 13, 2020. That was the height of the Covid pandemic when conditions in the province's pre-trial detention facilities were especially harsh. As a result, the parties agree that Mr. Fagan should receive 30 days of pre-sentence custody credit for that period.

[41] Finally, the parties agree that because Mr. Fagan was subject to significant restraints on his liberty under the terms of his bail from July 13, 2020, until January 21, 2022, when the Crown consented to the relaxation of his release conditions, a period of 18 months, he should receive six months of Downes credit in mitigation of his sentence: see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37.

[42] However, the parties disagree on the carceral component of the sentence the court should impose in this case.

[43] On behalf of the Crown, Mr. Coughlin submits that Mr. Fagan's offence falls at the "true crime" end of the firearm sentencing spectrum, given that he possessed a loaded restricted firearm over an extended period and repeatedly discharged it in a public place. Mr. Coughlin submits that the range of sentences at that end of the spectrum is between three and five years of imprisonment.

[44] Although Mr. Coughlin acknowledges that there are mitigating factors, including Mr. Fagan's youth, that he is a first offender, and pled guilty, he notes that Mr. Fagan's reason for possessing the firearm, self-protection, is not a mitigating factor.

[45] Mr. Coughlin argues that the circumstances detailed in the EPSR do not significantly mitigate Mr. Fagan's culpability. After all, Mr. Coughlin notes that Mr. Fagan had the benefit of two loving and supportive pro-social parents throughout his upbringing, who met his emotional and material needs. Unlike other racialized offenders whose life circumstances mitigate their degree of responsibility for their crime, Mr. Coughlin notes that Mr. Fagan did not experience housing or food insecurity.

[46] In all the circumstances, Mr. Coughlin submits that an appropriate sentence is between three years and three and a half years of imprisonment, less the credit agreed upon by the parties for time spent in pre-sentence custody and subject to restrictive bail terms.

[47] Even if the court decides to impose an upper reformatory sentence, Mr. Coughlin submits that a conditional sentence is inappropriate because it would inadequately address the sentencing objectives of denunciation and deterrence, which deserve emphasis given the gravity of Mr. Fagan's offence.

[48] In contrast, on behalf of Mr. Fagan, Mr. Mattis submits that, after noting seven months of pre-sentence custody, the court should impose a conditional sentence of two years less a day.

[49] In urging the court to impose a conditional sentence, Mr. Mattis emphasizes the significant mitigating factors in this case, including Mr. Fagan's youth at the time of his offence, his lack of any criminal record, and his guilty plea.

[50] Additionally, Mr. Mattis argued that the EPSR reveals that Mr. Fagan experienced the effects of anti-Black racism. Beyond negative interactions with law enforcement, most significantly, it curtailed his educational opportunities. It also led him to associate with Black peers, four of whom died from gun violence, which was the main reason he decided to carry a loaded handgun. All that, argues Mr. Mattis, significantly mitigates Mr. Fagan's moral blameworthiness for his offence.

[51] Further, Mr. Mattis emphasizes the positive strides that Mr. Fagan has made since his arrest. He completed the first year of a college program, obtained and maintained gainful employment, and started his own business. Mr. Mattis notes that Mr. Fagan has accomplished all that while subject to restrictive bail terms for nearly four years without incident.

[52] Mr. Mattis relies on cases where sentencing judges have imposed conditional sentences on youthful first offenders who possessed loaded restricted firearms where anti-Black racism mitigated their moral blameworthiness. He emphasized that the Court of Appeal has recognized that conditional sentences are not off the table for firearms offences in cases where the appropriate sentence is less than two years of imprisonment.

[53] Under all the circumstances, Mr. Mattis submits that the court should impose a lengthy conditional sentence.

Law and Analysis

[54] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. A sentencing judge must balance these considerations to arrive at a just and appropriate sentence.

Purpose, objectives, and principles of sentencing

[55] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.

[56] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: see s. 718 of the Criminal Code. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see Criminal Code, ss. 718(a)-(f).

[57] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": s. 718.1 of the Criminal Code. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.

[58] The principle of parity is instructive in arriving at a proportionate sentence. As the Supreme Court has explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). The Criminal Code directs that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances:" s. 718.2 (b). As a result, "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also paras. 30-33 more generally.

[59] Ultimately, proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate:" R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.

[60] Parliament has mandated the need for restraint in sentencing. It has instructed that an offender "should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done" to victims or the community "should be considered for all offenders": Criminal Code, ss. 718.2(d) and (f). A few implications of the restraint principle are directly relevant to this case.

[61] First, the restraint principle ordinarily requires prioritizing deterrence and rehabilitation when sentencing a youthful first offender. That usually counsels against imposing a custodial sentence: see R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.); R. v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.), pp. 294-296. That principle, however, has its limits. It does not apply to "very serious offences and offences involving violence:" Priest, at p. 294; see also Stein, at p. 377.

[62] Second, the restraint principle requires that when sentencing youthful first offenders, even when general deterrence and denunciation necessitate a custodial sentence, courts ought to proceed on the basis that the shortest possible sentence will achieve those objectives. Further, in sentencing such offenders, the court can never lose sight of the importance of specific deterrence and rehabilitation: see R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at paras. 59-60; R. v. Desir, 2021 ONCA 486, at para. 31; R. v. Faroughi, 2024 ONCA 178, at paras. 70-71.

[63] Finally, the restraint principle requires that where either a sentence of incarceration or a conditional sentence would be appropriate, a sentencing judge should generally impose a conditional sentence: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R 149, at para. 21; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 125.

Sentencing for Section 95(1) firearms offences

[64] The gravity of Mr. Fagan's offence cannot be exaggerated. Guns intimidate, they maim, and they kill. They are implements of human destruction. The cases recognize that unlawful firearms are a scourge in our community, and their possession must be discouraged through exemplary sentences that denounce and deter their possession and use and thereby enhance public safety: see 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. Mohiadin, 2021 ONCA 122, at para. 12. As the Court of Appeal observed in Morris, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. ... A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society ...

[65] In Nur, in affirming the Ontario Court of Appeal's decision, the Supreme Court of Canada agreed with Justice Doherty that firearm offences fall along a spectrum, with regulatory infractions at one end and guns used for criminal purposes at the other. And that cases falling near the "true crime" end of the spectrum warrant sentences of three years or more. Writing for the majority in Nur, Chief Justice McLachlin explained, at para. 82:

Section 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": para. 51. 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 .

[Underlining added]

[66] Since Nur, in cases involving offenders who unlawfully possess a restricted firearm but have not otherwise engaged in criminal activity and who were first offenders, courts have often imposed sentences approaching or at the maximum reformatory range (two years less a day): see R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Filian-Jiminez, 2014 ONCA 601 (18 months); R. v. Boussoulas, 2015 ONSC 1536, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44 (21 months); R. v. Shomonov, 2016 ONSC 4015 (21 months); R. v. Downey, 2017 ONCA 789 (two years less a day); R. v. Hassan, 2023 ONSC 5040 (two years less a day).

[67] In such cases, where exceptional circumstances were also present, sentencing judges have even imposed conditional sentences. For example, in cases where Morris factors mitigated an offender’s degree of responsibility and/or where the offenders had already made considerable strides toward rehabilitation: see R. v. Moses, 2022 ONSC 332 (conditional sentence of two years less a day); R. v. Stewart, 2022 ONSC 6997 (same); R. v. Beharry, 2022 ONSC 4370, at paras. 30-31 (same); R. v. Ramos, 2023 ONSC 1094 (same); R. v. Marier, 2023 ONSC 5194 (same); R. v. Stewart, 2024 ONSC 281 (same); R. v. Roy, 2023 ONSC 5931 (18-month conditional sentence).

[68] In contrast, offenders with prior criminal records, even those who are youthful, tend to receive sentences of three years of imprisonment: see R. v. J.B., 2016 ONSC 939 (three years); R. v. Jama, 2018 ONSC 1252 (same); R. v. Johnson, 2022 ONSC 2688 (same).

[69] Similarly, courts have imposed sentences ranging between two and four years of imprisonment where an offender's firearm possession is associated with other criminal activity, like drug trafficking: see R. v. Wong, 2012 ONCA 767, at paras. 9-15 (three years); R. v. Marshall, 2015 ONCA 692 (42 months); R. v. Mansingh, 2017 ONCA 68 (43 months); R. v. Prosser, 2014 ONSC 6466 (30 months); R. v. Griffith, 2019 ONSC 358 (four years); R. v. Marfo, 2020 ONSC 5663 (two years).

[70] Finally, the sentences for section 95 recidivists who also breached firearms prohibition orders are much longer, ranging between four and nine years of imprisonment: see R. v. Morris, 2023 ONCA 816, at para. 87 (citing the relevant cases).

Aggravating and Mitigating Circumstances

[71] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They serve to "push the sentence up or down the scale of appropriate sentences for similar offences": Nasogaluak, at para. 43.

[72] There is one very significant aggravating factor in this case. Although Mr. Fagan only pled guilty to possessing a loaded restricted firearm without a license, on the facts admitted by him, he did much more than that. He repeatedly discharged that firearm in a public place.

[73] There is no basis to suggest that Mr. Fagan possessed the firearm to facilitate his commission of other crimes. This is not a case involving an “outlaw who carrie[d] a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade”: Nur, at para. 51 (C.A.). Nevertheless, because Mr. Fagan repeatedly discharged the handgun he possessed on a residential street, his offence falls at the more odious end of the spectrum. His actions gave rise to a gravely serious and immediate risk to public safety: see Nur, at para. 52 (C.A.); Smickle, at paras. 29-30.

[74] At the same time, several significant mitigating factors exist in this case.

[75] First, there is Mr. Fagan's youth (he was only 20 years old at the time of the offence).

[76] Second, Mr. Fagan has no criminal record; he is a first offender.

[77] Third, Mr. Fagan pled guilty, avoiding the time and expense of a trial. This is no small matter, given that, when he pled guilty, the court's resources were still stretched thin because of the COVID-19 pandemic.

[78] Fourth, Mr. Fagan has otherwise lived an entirely pro-social life, and his actions since being charged bode well for his rehabilitation. For example, Mr. Fagan graduated from high school and has completed one year of college. He has sought and maintained gainful employment, including while on bail. Additionally, he has given back to the community through his volunteer coaching. Further, Mr. Fagan has remained subject to relatively restrictive bail conditions without incident since his release from custody nearly four years ago. Finally, Mr. Fagan enjoys the love and support of his parents, siblings, and extended family. All of that reflects positively on the prospects for his rehabilitation.

[79] Fifth, Mr. Fagan is remorseful for his crime. He has expressed that remorse to others and the court. I accept that he is genuine in doing so and has obtained insight into the gravity of his offence. That, too, speaks to Mr. Fagan’s potential for rehabilitation.

[80] Finally, the court has benefited from a comprehensive EPSR, which provides valuable insight into Mr. Fagan's background and circumstances. To be sure, Mr. Fagan was fortunate to be raised by parents who loved and cared for him. His parents met all his needs while he was growing up. Nevertheless, his parent's best efforts could not shield him from the caustic effects of anti-Black racism.

[81] I am satisfied that anti-Black racism played some role in limiting Mr. Fagan's educational opportunities, shaping his worldview, and narrowing his potential peer group. All of that contributed to bringing Mr. Fagan to a point in his life where he believed, wrongly to be sure, that arming himself with a handgun was the only way he could remain safe. Considering all this is essential to putting Mr. Fagan's life circumstances in context, assessing his degree of responsibility for his offence, and arriving at an appropriate sentence: see Morris, at paras. 76, 99-101, 105-107, 123.

The Appropriate Sentence

[82] I have carefully considered the circumstances of Mr. Fagan's offence, the purpose, objectives, and principles of sentencing, the range of sentences for his offence, and the aggravating and mitigating factors in this case. Ultimately, the challenge in sentencing Mr. Fagan is striking the appropriate balance between his gravely serious crime and the significant mitigating factors.

[83] To be sure, without the numerous mitigating factors in Mr. Fagan's favour, the gravity of his crime, possessing a loaded restricted firearm and repeatedly discharging it in a public place, would unquestionably have warranted a sentence of three to three and a half years of imprisonment, as sought by the Crown.

[84] A sentence of that duration would undoubtedly achieve the objectives of denunciation and general deterrence and recognize the gravity of Mr. Fagan’s serious crime. However, it would not adequately account for the significant mitigating factors in this case, including the effects of racism that diminish Mr. Fagan's degree of responsibility for his offence. As such, it would be disproportionate. It would also overlook the need for a sentence that helps to facilitate Mr. Fagan's rehabilitation, a critical objective given that he is a youthful first offender.

[85] Given Mr. Fagan's youth, the absence of a criminal record, his guilty plea, his genuine remorse, the contributing role of systemic racism in bringing about the circumstances that led him to commit his offence, and the steps he has already taken toward his rehabilitation, two years less a day of imprisonment is the fit and appropriate sentence.

[86] A sentence of that duration is substantial for a first offender. At the same time, compared to a penitentiary sentence, which would see Mr. Fagan incarcerated with hardened offenders, a reformatory sentence will enhance his prospects for rehabilitation. It will permit the court to place him on probation, which will ensure he receives the culturally sensitive programming for persons of African descent recommended by the EPSR author.

[87] Given that conclusion, the court must consider the appropriateness of a conditional sentence in this case. Although a conditional sentence was unavailable for possessing a loaded restricted firearm when Mr. Fagan committed his offence, legislative changes since then now make that an available sentencing option: see An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15, s. 14(1).

[88] The circumstances of this case satisfy four of the preconditions for a conditional sentence.

[89] First, as explained, a sentence of less than two years of imprisonment is appropriate in this case: see Criminal Code, s. 742.1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 49-61.

[90] Second, given that Mr. Fagan does not have a criminal record, the positive strides he has made since his arrest, and because he has been on bail without incident for nearly four years, I am satisfied that permitting him to serve a conditional sentence would not endanger the safety of the community: see Criminal Code, s. 742.1(a); Proulx, at paras. 69-74.

[91] Third, Mr. Fagan's offence is not punishable by a minimum term of imprisonment, which would preclude a conditional sentence: see Criminal Code, s. 742.1(b).

[92] Fourth, Mr. Fagan's offence is not amongst the relatively few crimes for which a conditional sentence remains unavailable: see Criminal Code, ss. 742.1(c) and (d).

[93] The final precondition for the court to order a conditional sentence is that it be satisfied that such a sentence "would be consistent with the fundamental purpose and principles of sentencing": Criminal Code, s. 742.1(a).

[94] In general, conditional sentences are available even in cases like this, where the preeminent sentencing objectives are denunciation and deterrence, and there are aggravating circumstances. As a result, they are not “off-limits” for firearms offences: see R. v. Desmond-Robinson, 2022 ONCA 369, at paras. 13-14; Morris, at paras. 124-129, 180-181.

[95] Although in Proulx, the Supreme Court recognized that conditional sentences are more effective than incarceration at achieving rehabilitation, reparations to victims and the community, and promoting a sense of responsibility, it also acknowledged that they are "a punitive sanction capable of achieving the objectives of denunciation and deterrence": at para. 22. That is because conditional sentences carry a significant stigma when they include punitive conditions, like house arrest: see Proulx, at paras. 36, 105.

[96] Therefore, if fashioned appropriately, the Supreme Court acknowledged that conditional sentences provide "a significant amount of denunciation" (para. 102) and "significant deterrence" (para. 107). Similarly, even in cases that involve aggravating circumstances relating to the offence or the offender, Proulx instructed that conditional sentences remain available: at para. 115.

[97] Nevertheless, the Supreme Court in Proulx also cautioned that in some cases, the amount of deterrence and denunciation provided by a conditional sentence could prove insufficient. In such circumstances, the only suitable way to achieve those sentencing objectives will be through incarceration: at para. 106.

[98] Unfortunately for Mr. Fagan, this is such a case. Although judges in the cases relied upon by Mr. Mattis imposed conditional sentences on first offenders for possessing loaded restricted firearms, unlike those cases, Mr. Fagan did more than unlawfully possess a loaded handgun. He repeatedly discharged it in a public place. It is impossible to overstate the profound threat to public safety created by Mr. Fagan's wantonly reckless conduct. It is blind luck that Mr. Fagan did not seriously injure or kill anyone.

[99] The gravity of Mr. Fagan’s crime makes a conditional sentence inappropriate. Only a custodial sentence is adequate to the task of denouncing Mr. Fagan’s serious crime and sending an unambiguous message to others that if they discharge a firearm in a public place, they will pay a heavy price.

Conclusion

[100] For these reasons, the court will note Mr. Fagan's sentence as two years less one day of imprisonment. Providing him with the credit agreed upon by the parties, the total sentence imposed going forward will be 509 days of imprisonment (essentially, 17 months of imprisonment, less one day).

[101] After completing his custodial sentence, Mr. Fagan will be subject to a probation order for two years. That order shall include the following conditions:

1. Keep the peace and be of good behaviour.
2. Appear before the court when required to do so by the court.
3. Notify the court or your probation officer before any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.
4. Report to a probation officer within two business days following your release from custody and after that if and when directed by your probation officer.
5. Take any counselling or programing as your probation officer recommends, with a specific recommendation by the court that you complete the Black Leaders of Tomorrow Program offered by Roots Community Services, (Tel. 905-455-6789 ext. 118 / mentoring@rootscs.org).
6. You are to cooperate with your probation officer and sign any releases necessary for them to confirm your compliance with the terms of this order.
7. You are not to possess any "weapons" as defined by the Criminal Code.

[102] The following ancillary orders shall also issue. First, an order directing the taking of a sample of Mr. Fagan's blood for the inclusion of his DNA profile in the National DNA Databank.

[103] Further, an order shall issue prohibiting Mr. Fagan from possessing: i) for ten years, any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance; and ii) for life, any prohibited firearm, a restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition.

[104] Finally, the court imposes a $200 victim surcharge; Mr. Fagan shall have two years to pay that amount.

Signed: “J. Stribopoulos J.”

Released: May 13, 2024