Court File and Parties

Court File No.: CR-22-40000648 Date: 2024-05-28 Ontario Superior Court of Justice

Between: His Majesty The King And: Terrell Burke-Whittaker

Counsel: Greg Elder, for the Crown Kim Schofield and Josephine Baldassi, for Mr. Burke-Whittaker

Heard: February 2 & April 30, 2024

Before: R.F. Goldstein J.

Facts

[1] On June 9, 2020 a viewing was held for Dimario Jenkins. Jenkins was a rapper known as Houdini. He was shot and killed on a street in downtown Toronto along with two other people. The viewing was held at the Blaxx Caribbean Restaurant at 55 Beverly Hills Drive. There is a parking lot at the rear of 55 Beverly Hills Drive. The parking lot backs directly onto Highway 401 to the south. There is a fence between the parking lot and Highway 401.

[2] At 11:21 pm an unknown vehicle driving on Highway 401 stopped on the shoulder of the westbound lanes. The vehicle was adjacent to the parking lot. There was a large crowd of people in the parking lot. Someone in the car began to fire shots at the crowd.

[3] Mr. Burke-Whittaker attended the viewing. He was in the parking lot when the person or persons in the vehicle starting firing shots at the gathering. Mr. Burke-Whittaker was carrying a red satchel. He had a handgun in the satchel. People rushed towards an open door into the rear of 55 Beverley Hills Drive. Others took out handguns and fired towards the unknown vehicle (and passing traffic on Highway 401). There was a dumpster in the parking lot, near the door to 55 Beverley Hills Drive. Several people took cover behind the dumpster. Some of them popped up and around it to fire shots in the general direction of the vehicle. From the sounds, it appears that at least one person (not Mr. Burke-Whittaker) fired a weapon on full automatic. Mr. Burke-Whittaker can be seen on the video carrying a red satchel over his shoulder. While people were exchanging shots with the unknown vehicle, Mr. Burke-Whittaker appeared to be pulling something out of the red satchel – I infer it was the firearm – and then trying to cock it by pulling back the slide. While others shot and then fled, he finally was able to cock it. He turned and fired a shot in the general direction of the unknown vehicle and then fled through the open door.

[4] A police investigation ensued. Mr. Burke-Whittaker was identified as one of the shooters. He turned himself in to police on June 22, 2021. The firearm was never recovered.

[5] Mr. Burke-Whittaker has pleaded guilty to one count of possession of a loaded or prohibited or restricted firearm contrary to s. 95(1) of the Criminal Code .

Circumstances of Mr. Burke-Whittaker

[6] Mr. Burke-Whittaker is 28 years old. He grew up in Toronto. His father was in and out of jail. He had very little to do with his father growing up. He was raised by his mother and grandmother in Brampton. He did complete high school and started college but did not complete it and went to work, although it is unclear what sort of work he did at the time of his arrest. He had a child born in 2018. He apparently became interested in firefighting and has since been accepted to the Toronto Fire Academy. He has also used the time while on bail to start a vending machine business, which he hopes to expand.

[7] I reviewed several very positive letters filed on Mr. Burke-Whittaker’s behalf. There were two letters from Astrid Kastia. Ms. Kastia is a works at Primacare, a long-term care facility for seniors. Ms. Kastia also appears to be a family friend. She wrote a personal letter indicating her long association with Mr. Burke-Whittaker and attesting to his good character. She noted that he came to her to ask to do volunteer work. Ms. Kastia also wrote a letter from Primacare, indicating that Mr. Burke-Whittaker successfully completed 110 hours of volunteer work. He apparently did various chores, connected with the seniors, and was well-liked and diligent.

[8] Mr. Burke-Whittaker’s long-term girlfriend, Kaylee Scott, also wrote a heartfelt letter in support of Mr. Burke-Whittaker. They share a young daughter. Ms. Scott indicated that Mr. Burke-Whittaker provides financial support to her and is very concerned about what will happen if he goes to jail. She described a very good relationship between Mr. Burke-Whittaker and his daughter. She indicated that he is a good, supportive person, and a good father. Mr. Burke-Whittaker’s niece Teliea also wrote a letter on his behalf, describing him as being akin to an older brother to her. Sharon Whittaker, Mr. Burke-Whittaker’s aunt, also wrote a letter of support for him. She works as a community justice worker at a half-way house in Brampton. She also volunteers at various jails and detention centres. She described the family as hard-working, charitable, and heavily involved in the life of their church. Although Ms. Burke is clearly disappointed with Mr. Burke-Whittaker’s actions, she sees growth since his arrest and believes that he has taken steps to turn his life around.

[9] Sergio Filipe is the father of one of Mr. Burke-Whittaker’s friends. He described him as a polite and decent young man. Mr. Burke-Whittaker worked for his landscaping company in the summer of 2022. He described Mr. Burke-Whittaker as punctual, hard-working, and having a good relationship with customers.

[10] One of Mr. Burke-Whittaker’s former teachers, Daniel Weeren, also wrote a letter in support of Mr. Burke-Whittaker. She described how his judgment was sometimes “clouded” by the influence of peers and the environment in which he was raised. She has maintained contact with him and expressed her disappointment with his actions. She noted, however, that Mr. Burke-Williams has had time to reflect and believes that he is committed to a better future for himself and his family.

[11] Mr. Burke-Whittaker has been employed full-time since August 2023 with Sureteco Canada as an extruder operator. He has been accepted to the Ontario Fire Academy for the full-time program in September 2023. As I understand it, a firefighter course is mandatory for anyone wishing to become a professional, full-time firefighter in Ontario.

[12] Mr. Burke-Whittaker also wrote a very articulate letter to the court. He expressed remorse for his actions and set out his hopes for the future. He wrote that he has used the time while on house arrest to reflect on where he has been and where he wishes to go and what he hopes to achieve. He understands the challenges that will come with a criminal record. Nonetheless he clearly has plans and is hoping to overcome the obstacles that he faces.

[13] Although no Morris report was filed, Ms. Schofield described some of the conditions that Mr. Burke-Whittaker, a young Black man, had to deal with growing up. I certainly accept that systemic racism is likely a factor in some of the obstacles that Mr. Burke-Whittaker has faced over the years. Mr. Burke-Whittaker, in his letter to me, did not suggest that there was a connection between systemic racism and the obstacles that he has had to overcome. I may be speculating, but I think that Mr. Burke-Whittaker was making an effort in his letter to the court to take personal responsibility and not to blame anyone but himself. He may not blame what have come to be called the “ Morris ” factors, and I think it is to his credit that he does not do so, but it is still my responsibility to at least evaluate whether they have played a role and determine the impact. In this case, based on the information that I have received, I think it is fair to say that these factors have played a role in Mr. Burke-Whittaker’s upbringing, that there have been difficulties and obstacles – and, perhaps most damaging, a difficult environment. I do not see, however, how the Morris factors played a direct role in the offence. I do take them into account, along with all of the letters of support and other information I have about Mr. Burke-Whittaker, in terms of his prospects for rehabilitation. Based on the information before me, Mr. Burke-Whittaker appears to have very good prospects for rehabilitation. This is his first offence. There is no evidence that he has in any way failed to comply with his bail conditions. He has used the time on bail wisely, to start a small business, to work, and to apply to become a firefighter. These are all positive things that I take into account.

Legal Parameters

[14] Possession of a handgun contrary to s. 95(1) of the Criminal Code was punishable by up to ten years in prison at the time of the offence. Since Mr. Burke-Whittaker was arrested, Parliament has amended the Criminal Code and has increased the maximum penalty to fourteen years.

Positions of the Crown and Defense And Cases In Support

[15] Crown counsel’s position is that the appropriate sentence in this case is four years. In support of his position, the Crown has filed several cases. I will only mention a few.

[16] In R. v. Fogah-Pierre, 2024 ONSC 386, the offender fired five shots that, fortunately, did not harm anyone. Although she was satisfied that the 8 ½ year sentence sought by the Crown was appropriate, she was satisfied that exceptional circumstances existed, and she sentenced him to the 5 year mandatory minimum.

[17] In R. v. Jackson, 2023 ONCA 746, the offender pleaded guilty to possession of a loaded prohibited firearm and possession of an overcapacity magazine. The offender was involved in a shootout where he fired nine rounds and was shot in the leg. The Court of Appeal upheld a global sentence of 3 years and 5 months, less pre-sentence custody.

[18] In R. v. Marong, 2020 ONCA 598 the offender was found guilty after trial of possession of a loaded prohibited weapon. He drove a drug dealer to a drug deal with an undercover officer. He was arrested shortly after. The police found a handgun in the centre console of the car. The trial judge convicted the offender and sentenced him to four years, less pre-sentence custody. The Court of Appeal upheld the four-year sentence but varied it to allow for more credit for pre-sentence custody.

[19] In R. v. Marshall, 2015 ONCA 692, the offender was convicted of possession of a handgun after trial. The trial judge imposed a sentence of 3 ½ years. The offender was young (aged 23) and had no criminal record. The offender was, however, heavily involved in the drug trade. He was one of those offenders who had a handgun as a tool of that trade. The Court of Appeal upheld the sentence.

[20] In R. v. Mohiadin, 2021 ONCA 122, the offender was convicted after trial of six counts arising from possession of a loaded handgun in a car. The trial judge sentenced him to 38 months in custody less pre-sentence custody. That sentence exceeded the sentence sought by the Crown with no notice to the parties to make submissions. Accordingly the Court of Appeal found an error of law and considered the proper sentence. The sentence was reduced to 36 months, which the Crown had originally suggested.

[21] Defence counsel’s position is that Mr. Burke-Whittaker should receive a conditional sentence, one that is to be served in the community, of 2 years less a day.

[22] In support of her position, also Ms. Schofield relies on several cases. I will only mention a few of them.

[23] Ms. Schofield particularly relies on R. v. Collins, 2023 ONSC 5768. In that case, the offender was swept up in Project Sunder, a very large wiretap investigation into gun and drug trafficking. After an unsuccessful Charter motion Mr. Collins pleaded guilty to one count of possession of a loaded prohibited firearm; possession of a loaded prohibited firearm contrary to a s. 109 Order; possession of cocaine for the purpose of trafficking; and possession of proceeds of crime. The offender had made great strides towards rehabilitation while on bail. After a very lengthy and detailed review of the facts and the cases, Code J. was satisfied that a conditional sentence was appropriate. He stated:

In my view, the principle that emerges from cases like Whittaker , Sellars , and Hassan is that exceptionally strong mitigating circumstances, relating to both diminished moral culpability and the complete reformation of the accused while on bail, can justify a departure from the normal need for substantial jail sentences in firearms possession and drug trafficking cases.

[24] Collins is particularly helpful in that Code J. summarizes and analyzes the cases where conditional sentences have been imposed.

[25] In R. v. Beharry, 2022 ONSC 4370, the offender was convicted after a short judge-alone trial of possession of a loaded handgun. He had it in a fanny pack on the back seat of a car. The offender was 32 years old and had no criminal record. He had grown up in challenging circumstances. Schreck J. of this court imposed a global conditional sentence of two years less a day.

[26] Other cases where judges of this court have imposed conditional sentences include: R. v. Dalton, 2018 ONSC 544 (12 month CSO for possession of a loaded shotgun and ammunition); R. v. Stewart, 2022 ONSC 6997 (2 years less a day CSO for possession of a loaded prohibited firearm and an over-capacity magazine); R. v. Lewis, 2022 ONSC 1260 (possession of a loaded firearm and 49.7 grams of cocaine, and extremely sympathetic circumstances leading to a 6 month CSO).

[27] After reviewing the cases, both Crown and defence, my view is that possession of a loaded prohibited handgun carries with it a sentence in the range from low penitentiary to 5 years, depending on the circumstances. Those cases where an offender has a gun along with drugs and uses that gun as a tool of the drug trade obviously merit a sentence at the higher end of the range. Those sentences where a conditional sentence has been imposed usually involve some kind of exceptional circumstance.

[28] The one aggravating factor here that is not present in any of the cases where a conditional sentence was imposed is that the firearm was discharged. I have not been provided any authorities where a person who has discharged a firearm has received a conditional sentence. Admittedly, a conviction for a discharge carries a minimum five-year sentence and is therefore not eligible for a conditional sentence, but Mr. Burke-Whittaker has not been found guilty of a discharge offence. Nonetheless, it is still a significant aggravating factor.

Mitigating and Aggravating Factors

[29] There are numerous mitigating factors in this case. Most importantly, Mr. Burke-Whittaker has pleaded guilty and expressed remorse for his actions. I accept that his remorse is sincere. As I said, he has written a very articulate letter to the court and has expressed his remorse to the court twice. It is mitigating that he has the support of his family – including his long-term girlfriend and his child, who he financially assists. It is mitigating that he has made real strides while on bail for this offence, including starting a small business and applying to and being accepted in a firefighting program.

[30] Mr. Burke-Whittaker served 29 days in custody. At the statutory rate of 1.5:1 he is entitled to credit for 43 days.

[31] The nature of the offence is aggravating. Mr. Burke-Whittaker brought a gun to a funeral viewing. He had it in public. I draw the inference that he was expecting some kind of trouble and that he was prepared to deal with that trouble using a firearm.

[32] It is particularly aggravating that he discharged that firearm. The context is important. When the shooting started, many people took cover behind a dumpster, pulled out a firearm, and shot back. Mr. Burke-Whittaker pulled out his firearm. He struggled with cocking it, however. I infer that he would have participated in the firefight if he had been able to properly cock the weapon and chamber a round. When he was finally able to do so, the shooting was over and most of the people behind the dumpster had fled into the adjacent building. He fired towards the highway, and then fled into the building as well.

[33] Mr. Burke-Whittaker’s actions in firing that weapon are highly aggravating. It was not fired in self-defence. He was perfectly safe with the dumpster between him and whoever was shooting from the shoulder of Highway 401. The shooting had apparently finished by the time he fired the round, although I accept it was a dynamic situation and he may not have been aware of that. Most importantly, Mr. Burke-Whittaker fired a round in the direction of a busy highway with traffic roaring by. That round could have easily hit a passing vehicle and killed or injured people. It is simply a matter of moral luck that it did not do so.

Principles of Sentencing

[34] The most important principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.01. In firearms cases, the principles of general deterrence and denunciation play the most important role.

[35] As the Court of Appeal said in Mansingh, supra, at para. 24:

The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender. We observe, as did the trial judge, that the appellant not only fled from the police while armed with a loaded handgun, a very dangerous activity, he also threw that loaded weapon away in a place where it could easily have been found by a young child.

[36] In my respectful view, deterrence and denunciation take precedence in a case involving the possession of a firearm and the discharge of that firearm. I agree that rehabilitation must play a role, but that role must be secondary to the principles of denunciation and deterrence.

Sentence Imposed and Ancillary Orders

[37] This is a case where a promising young man who has worked hard at rehabilitation made an enormous mistake, one that could have had tragic consequences. He brought a gun to the funeral of a murdered rap artist, and then fired that gun towards a busy highway. This city has seen altogether too much gun crime. That gun crime has devastated communities and killed many young men. That gun crime has also claimed the lives of innocent bystanders. It is only a matter of good luck that Mr. Burke-Whittaker’s actions did not claim the life of an innocent bystander.

[38] Mr. Elder acknowledged that Mr. Burke-Whittaker has good rehabilitative prospects. I agree. There is no evidence that he was anything but fully compliant with his bail conditions during the almost three years that he has been on bail. After some bail variations, he did find full-time work and has been working steadily. He was admitted to the Toronto Fire Academy for training as a firefighter. He has gone into the vending machine business, and he is looking to expand it. If I were to impose a sentence of less than two years, Mr. Burke-Whittaker would be an obvious candidate for a conditional sentence.

[39] Usually, anything less than a penitentiary sentence would fail to meet the sentencing principles of general deterrence and denunciation. Those who would carry a firearm to a funeral in these circumstances, or in some other situation of potential danger, and then actually use it, must know that they will go to jail for a significant period of time. There is no valid claim to self-defence here, and no valid claim that the gun was needed for protection. Mr. Burke-Whittaker, again, to his credit, did not make that claim. Indeed, if you bring a gun to a gathering then you are part of the problem, you are not part of the solution. Mr. Burke-Whittaker was a part of the problem when he brought that firearm to Houdini’s funeral, but it appears he now understands that.

[40] I note that in R. v Nur, 2015 SCC 15, Chief Justice McLachlin stated 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.

[41] As Justice Doherty himself stated in R. v. Nur, 2013 ONCA 677 at para. 206, the most important sentencing principle in firearms cases is general deterrence – and those who carry firearms should receive exemplary sentences:

Nor do my reasons have any significant impact on the determination of the appropriate sentence for those s. 95 offences at what I have described as the true crime end of the s. 95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

[42] In R. v. Mansingh, 2017 ONCA 68, the offender was a low-level marijuana dealer who tossed a gun away in a public place while being chased by the police. The Court of Appeal upheld a sentence of 43 months and stated at para. 24:

The trial judge was alive to the appellant's age, the absence of a criminal record and his relatively positive prospects. However, this court, and more importantly the Supreme Court of Canada, have repeatedly indicated that the kind of offences committed by the appellant require the imposition of substantial jail terms even if the offender is young and has no criminal record: see R. v. Nur, 2015 SCC 15. Cases from this court, referred to by the trial judge, support the position that the sentence imposed was within the established range for this kind of offence even when committed by a relatively young first offender.

[43] The Crown’s submission that a sentence of four years should be imposed is well within the range of sentence for similar types of offences and similar types of offenders. On the other hand, this offence happened four years ago. Mr. Burke-Whittaker turned himself in about a year after that. He has now been on bail for just about three years. That is a lot of water under the bridge.

[44] Although my first inclination was to sentence Mr. Burke-Whittaker to a term in the penitentiary, and certainly deterrence and denunciation demand that I do so, my view is that there are some exceptional circumstances here that justify a sentence below the penitentiary range. I have wrestled with this case, and ultimately, I think that there is no social utility in this particular case in sending Mr. Burke-Whittaker to the penitentiary. I am persuaded that this is one of those exceptional cases mentioned by my colleague Code J. in Collins that justifies a departure from the normal range. In my view, Mr. Burke-Whittaker does not represent a danger to the community at this point. Accordingly, after much anxious consideration, I will sentence Mr. Burke-Whittaker to a sentence of two years less a day. After considering whether that sentence is in accordance with the purposes and principles of sentencing, especially the principle of rehabilitation, I am satisfied that he can be served in the community. I am not, however, going to make it easy for him because there still must be a punitive element to the sentence in order to satisfy the objectives of denunciation and deterrence. I am therefore also going to put him on probation for three years. He will thus be subject to state supervision for one day short of five years, in addition to the time he has spent on bail. As well, I am going to require that he attend before me from time to time, which I believe I have jurisdiction to do, while he is on his conditional sentence. Every now and then, people come before the court who deserve a break, something that is out of the ordinary – and in this case I am going to give such a break to Mr. Burke-Whittaker, but, as I say, I am not going to make it easy for him.

[45] Accordingly, I sentence Mr. Burke-Whittaker to two years less a day conditional. In addition to the statutory terms, Mr. Burke-Whittaker will serve the entire time under house arrest, with the following exceptions:

• He will attend the Toronto Fire Academy and complete his firefighting course. He will provide his course schedule to his conditional sentence supervisor and will provide proof of attendance to his conditional sentence supervisor.
• For the purpose of attending at his vending machines to service and maintain them, with the prior written permission of his conditional sentence supervisor.
• For the purposes of employment, with his work schedule to be provided in advance to his conditional sentence supervisor, if he obtains employment with an employer.
• For medical emergencies on behalf of himself or a member of his immediate family.
• To attend any other educational or training course, as approved by his conditional sentence supervisor, with his course schedule and proof of attendance to be provided to his conditional sentence supervisor.
• For prior arranged medical appointments, appointments with his counsel, appointments with his conditional sentence supervisor, such appointments to be approved in advance by is conditional sentence supervisor.
• To carry a copy of his conditional sentence order when outside his residence.
• For one five-hour period per week, on a date and time to be approved by his conditional sentence supervisor, to spend time on outing with his daughter and to shop for the necessities of life.
• Not to attend or be within 100 meters of Blaxx Caribbean Restaurant.
• Attend court before Justice Robert Goldstein when required to do so.

[46] Mr. Burke-Whittaker should understand that if he does not attend the Fire Academy and does not complete the course, that will constitute a breach of his conditional sentence and he may well find himself back in front of me on a breach and I will very likely sentence him to serve the remainder of his time in custody.

[47] After the completion of his conditional sentence, he is to be on probation for three years. The terms of his probation will be as follows:

• Not to attend or be within 100 meters of Blaxx Caribbean Restaurant.
• To seek and maintain employment, or run his small business, proof of which is to be provided to his probation officer.
• To attend any other educational or training course, as approved by his probation officer, with his course schedule and proof of attendance to be provided to his probation officer.

[48] In addition to the conditional sentence he will be subject to a DNA order, and a s. 109 order for ten years.

R.F. Goldstein J. Released: May 28, 2024