Court File and Parties

COURT FILE NO.: CR-23-300000764 and CR-23-30000021 DATE: 2024-06-13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – SALIMOU DANSOKO

Counsel: Shalini Gunawardhane, for the Crown Christian Pearce, for Salimou Dansoko

HEARD: March 18 and May 2, 2024

REASONS FOR SENTENCE

HIMEL J.

[1] Salimou Dansoko entered a plea of guilty to charges of possession of a loaded restricted firearm without being the holder of a licence or registration permitting such possession contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended, and fail to comply with a recognizance contrary to s. 145(5) the Code. He had elected to be tried by a judge sitting alone.

[2] Mr. Dansoko confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.

[3] Following the plea of guilty, I ordered that a pre-sentence report be prepared. It has now been completed and reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

[4] On October 5, 2022, Mr. Dansoko appeared before the Honourable Justice of the Peace M. Conacher of the Ontario Court of Justice located previously at 1911 Eglinton Avenue East in the City of Toronto. Mr. Dansoko entered into a global release order as he was currently before the courts for criminal charges including firearm possession offences relating to a shooting that took place on August 21, 2021, at 3847 Lawrence Avenue East. That release order made on August 12, 2022, required that he live with his mother at 3847 Lawrence Avenue East, Scarborough, Ontario and be subject to a curfew of 9:00 p.m. to 6:00 a.m., be subject to electronic monitoring and not possess any weapons. As part of his global release order made on October 5, 2022, Mr. Dansoko promised to abide by several conditions including “Do not possess any weapons as defined by the Criminal Code for example but not restricted to a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance, or anything designed to be used or intended for the use to cause death or injury or to threaten or intimidate any persons”.

[5] Sometime on June 4, 2023, Mr. Dansoko was communicating on an internet-based web forum known as “YUBO” a program designed for people to communicate with another across the globe. On this date, the accused’s account titled “swallowwityou” posted a comment stating “This y I’m shooting up my school” along with the picture of what appeared to be a black handgun. The posted image and content was discovered using AI technology that monitors posted content for security purposes. The account was registered as a user/profile being from the country of Canada. Upon being discovered, security personnel for YUBO reviewed the content made by Mr. Dansoko and notified Paris Interpol as the company’s head office is located in France.

[6] An investigation commenced and Interpol confirmed that the account posting on YUBO was located in the country of Canada. Ultimately, the Ottawa Interpol office narrowed down that the account posting on YUBO was located in Toronto, Ontario and the investigation was turned over to the Toronto Police Service.

[7] On June 6, 2023, 43 Division Major Crime officers applied for and were granted a Criminal Code search warrant for Mr. Dansoko’ s home address, where he lived with his mother and siblings at #1109, 3847 Lawrence Avenue East in Scarborough.

[8] With the assistance of the Emergency Task Force, the search warrant was executed at the Mr. Dansoko’s home address. During the execution of the search warrant and prior to being arrested, Mr. Dansoko discarded a black Glock 30-s handgun that was loaded with 9 rounds of .45 cal ammunition by throwing it out of his bedroom window.

[9] An officer standing outside of the building observed a white object come from the bedroom window and when he approached the object on the ground, it was a handgun wrapped in a white t-shirt. The firearm was recovered by officers and Mr. Dansoko was placed under arrest, provided his right to counsel, transported to 43 Division and held for a show cause hearing.

[10] On the basis of these facts and the admission of the defence, I found Mr. Dansoko guilty of the offences charged.

EVIDENCE ON THE SENTENCING HEARING

[11] The pre-sentence report was filed as an exhibit and will be referenced below. Crown counsel submitted Mr. Dansoko’s criminal record which consists of two fail to comply with order counts and one use of credit card offence for which he received a conditional discharge and probation for three years on October 23, 2023, which post-dates these offences. Ms. Gunawardhane also submitted a document entitled “Firearms and Violent Crime in Canada” prepared by Statistics Canada.

[12] The defence filed a Lockdown Summary and records from the Toronto South Detention Centre and the Toronto East Detention Centre regarding Mr. Dansoko’s incarceration. Mr. Pearce also submitted a copy of the Ontario Secondary School Diploma dated June 1, 2023, and a document entitled “Acknowledgement of application for admission to Centennial College” by Mr. Dansoko.

[13] Mr. Dansoko spoke in court and expressed his remorse. He said that he does not want to put his mother through this again.

POSITIONS OF THE PARTIES

[14] Crown counsel submits to the court that an appropriate sentence in this case is a global sentence of three years of imprisonment, with 2.5 years for the s. 95 offence and 6 months consecutive to that sentence for the fail to comply offence. Mr. Dansoko was arrested on June 6, 2023. As of the date of the sentencing submissions, he had served 332 days in pre-sentence custody. At 1.5:1, that would equal 498 days in custody in accordance with R. v. Summers, [2014] S.C.R. 575 and s. 719 (3.1) of the Code. Crown counsel also seeks the following ancillary orders: a s. 109 order for life, an order that a DNA sample be taken as this is a secondary designated offence pursuant to s. 487.051(3) and an order of forfeiture of the property seized which was a loaded Glock handgun.

[15] Ms. Gunawardane argues that this sentence takes into account any credit pursuant to R. v. Summers and any mitigating factors stemming from systemic racism. She takes the position that a sentence not served in custody would not be appropriate. There are aggravating factors in this case. Mr. Dansoko discarded a firearm by throwing it out of the window in a t-shirt from an 11th floor apartment. Police just happened to be there. Mr. Dansoko was on a recognizance at the time related to other firearms possession offences and a shooting. He was on a global bail with a condition not to possess weapons. He has a criminal record for fail to comply with recognizance for which he received a conditional discharge.

[16] In accordance with what the Supreme Court has said in R. v. Nur, 2015 SCC 15, the objectives of denunciation and deterrence are paramount. Ms. Gunawardane cites the decision of R. v. Kawal, 2018 ONSC 7531 at para. 16 where the court said, “The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.” Crown counsel submitted to the court a document entitled “Firearms and Violent Crime in Canada” which was published in 2024. It shows the increase in gun violence in 2022 in Canada and in Ontario. In R. v. Nur, the court at para. 131 wrote that gun crime is a matter of grave concern, and this is repeated throughout the jurisprudence. In R. v. Sinclair 2018 ONSC 7028, at para. 47, the court noted that unlawful possession of firearms is a menace to society and exemplary sentences are needed to denounce and deter such conduct.

[17] In the case of R. v. Morris, 2021 ONCA 680 the court wrote as follows at para. 68:

As described in Friesen, at paras. 75-76, the gravity of an offence takes into account the normative wrongfulness of the conduct and the harm posed or caused by the conduct. 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. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community’ 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: see Nur (ONCA) at paras. 82, 206; R. v. Felawka, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, [1993] S.C.J. No. 117 at pp. 214-15 S.C.R.

[18] In Morris, the court considered the factor where an accused has experienced anti-Black racism but said at para. 97: “There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Crown counsel points out that Mr. Dansoko had a stable childhood and suffered no abuse or neglect. She submits that while he had friends who were victims of gun violence, the nexus required is not present in this case.

[19] Ms. Gunawardane also references that there is a prevalence of gun violence particularly in the City of Toronto. She cites the decision of R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at paras. 89-90 where the Supreme Court said that while the Criminal Code applies across Canada, local characteristics in a given region may affect the sentence being given. The court cited R. v. M (C.A.) 1996 CanLII 230 (SCC), [1996] 1SCR 500, where Lamer C.J. wrote that the determination of a just and fit sentence may take into account, “needs and current conditions of and in the community.” Crown counsel submits that one of the factors to consider is whether the type of crime occurs frequently in a geographic region and that having a loaded firearm is a dangerous blight on the city.

[20] In R. v. Johnson, 2022, ONSC 2688, the court dealt with the reason for possession of the firearm for self-protection. In the decision, Goldstein J. wrote at para. 41, “The notion often advanced in these courts that a person needs an illegal handgun for protection is, quite simply, utter nonsense…” Further, the way Mr. Dansoko disposed of the loaded firearm is of great concern. It was sheer luck that a child wasn’t there to pick it up.

[21] Crown counsel thus summarized the aggravating factors: that the gun Mr. Dansoko possessed was loaded, it was discarded in a public place, it was handled in a careless manner, and that he was on bail with terms of house arrest for offences that also included gun offences. He says he had the gun for protection, but he was under house arrest and should not have needed to arm himself if he was complying with that term of release. The mitigating factors are that Mr. Dansoko is only 20 years old and he has pleaded guilty to the offences.

[22] Crown counsel pointed out jurisprudence where similar sentencing ranges were imposed for possession of a loaded restricted weapon. In R. v. Nur, the Supreme Court upheld a sentence of 40 months and said that most cases involving possession of firearms would merit a sentence of three years: see para. 82. In R. v. Thavakularatnam 2018 ONSC 2380, [2018] O.J. No. 2038, the court imposed a 40-month sentence where the offender pleaded guilty, was 20 years old, had been on bail at the time for an assault charge, had no adult criminal record and there were immigration consequences. In R. v. Marshall, 2015 ONCA 692, the 23-year-old offender had no prior record, and the gun was used for drug trafficking. While on bail for this offence, he was arrested for and later pleaded guilty to possession of cocaine for the purpose of trafficking and breach of his recognizance of bail. The sentence of 3.5 years less credit for 18 months of pre-sentence custody was upheld on appeal.

[23] In R. v. Mansingh, 2017 ONCA 68, [2017] O.J. No. 379 (C.A.), the court sentenced the accused to 43 months following a trial which was upheld on appeal. He was young, had no criminal record and had relatively favourable prospects. He had discarded the firearm as he ran from police. In R. v. Mohiadin, 2021 ONCA 122, the Court of Appeal imposed a 36-month sentence where the appellant was a youthful first offender, there was no evidence he was involved in gang activity, the appellant had witnessed gun violence and he had prospects of rehabilitation. He invited a guilty verdict after losing a Charter challenge. In R. v. Mahamet-Zene, 2018 ONSC 1050, [2018] O.J. NO. 1003, the offender was 24 years old, had no prior criminal record, had a favourable pre-sentence report and a supportive family. He had been found guilty of possession of a gun in a public place (in a backpack). The court imposed a sentence of 42 months of imprisonment with one month of credit for restrictive bail conditions. In summary, Ms. Gunawardane submits that a sentence of three years is in the range and is appropriate in this case.

[24] Crown counsel argues that a non-custodial disposition is not appropriate as Mr. Dansoko has a previous criminal record for fail to comply, and he was on bail at the time of the offence. Ms. Gunawardane submits that the cases cited by the defence may be distinguished from the case at bar as there were other mitigating circumstances that existed in them that do not exist in the case of Mr. Dansoko. She argues that the cases cited by the defence are not pertinent to this case. In R. v. Fabbro, 2021 ONCA 494, at para. 50, a conditional sentence was imposed but there were other mitigating factors such as mental health and addiction present. Possession of the firearm was to commit suicide. In R. v. Hassan, 2017 ONSC 4570, the offender did not discard the gun and was caught on a fluke interaction with police. In R. v. Ulmer, 2020 ABQB 393, at para. 52, the Crown had sought a lesser sentence as the 61-year-old had addiction issues and possession was related to hunting.

[25] Counsel commented on the records filed by the defence and takes the position that enhanced credit is not indicated here. Often, the lockdowns were partial (from 6:00 a.m. to 9:00 a.m.) Jurisprudence supporting awarding enhanced credit for harsh pre-sentence conditions is not relevant as many of the cases occurred during the COVID-19 pandemic which had a significant impact and there were harsher conditions in the jails. Mr. Dansoko was incarcerated in June of 2023.

[26] Furthermore, there were two incidents of misconduct during his incarceration: on November 14, 2023, Mr. Dansoko assaulted another inmate and on March 5, 2024, he had a glass made into a weapon in his possession. She says he has been ungovernable in custody.

[27] Finally, Crown counsel points out that Mr. Dansoko did not file an affidavit indicating the impact of harsh conditions on him.

[28] Counsel for the defence, Mr. Pearce, submits that the pre-sentence report portrays a positive view of Mr. Dansoko and his future prospects for rehabilitation. Mr. Dansoko was co-operative and forthcoming with the probation officer. He was trying to give an honest account of what he has learned from his mistakes. He accepts responsibility and does not make excuses or discount the seriousness of the offences. He recognizes that he should not have had a gun in his possession. He was only 19 years old when he went into custody. He has learned how difficult jail can be. He appreciates how this has affected his parents and siblings.

[29] The defence relies on R. v. Moses, 2022 ONSC 332, [2022] O.J. No. 3604, where Quigley J. sentenced the offender for convictions on s. 95(1) and s. 92(1) offences in circumstances where he held there was “almost complete absence of aggravating circumstances” to a reformatory sentence of two years less a day served as a conditional sentence in the community. In Moses, Quigley J. referenced the cases of R. v. Fabbro, R. v. Hassan, and R. v. Ulmer, where conditional sentences were imposed in gun possession cases. However, in Fabbro, the offender had very significant mental health and substance abuse issues and had not been able to obtain treatment. He possessed the firearm for the purpose of committing suicide. In R. v Hassan, Backhouse J. imposed a conditional sentence based on the strong and persuasive evidence of the offender’s rehabilitation and the evidence that he was not a danger to the public and very unlikely to reoffend. In Ulmer, the Alberta Court of Queens Bench imposed a conditional sentence where the Crown only sought a sentence of 18 months.

[30] In the case of R. v. Hill, [2023] O.J. 3590 P.K. Burstein J. imposed a sentence of two years less one day served as a conditional sentence followed by three years of probation where the offender who was Aboriginal armed himself with a handgun during the illicit transaction, he had arranged with two sex trade workers. The handgun was one that he had previously possessed lawfully pursuant to a licence which had expired.

[31] Mr. Pearce submits that there is a nexus between Mr. Dansoko’s background and exposure to gun violence as well as being subject to anti-Black racism and the offences he has committed. He lived in a dangerous neighbourhood where his friend had been gunned down, there were multiple shootings, and he was scared for his life. Counsel argues that gun violence affects society broadly but also affects young Black men who are most vulnerable.

[32] Mr. Dansoko was only 19 years old when he experienced systemic racism and that he had a gun for protection is connected to his background. Counsel asks the court to consider these factors in accordance with R. v. Morris. He points to the Appendix to the Morris Report which discusses the issue of Anti-Black Racism in Ontario and the impact of the negative treatment within the criminal justice system of Black men including over-representation in stop, search and carding practices, serving longer time in pre-trial detention and longer periods of incarceration.

[33] As for the jail records, counsel points to those from the Toronto East Detention Centre where, for 81 nights Mr. Dansoko was triple bunked. He submits that a partial lockdown is a lockdown and should be treated as one in light of the psychological effects. With respect to the Toronto East Detention Centre, the institutional average for allowing the prisoners to have fresh air was one out of three days. In his unit it was 42% of the time and that affected his freedom.

[34] Mr. Pearce asks the court to award Mr. Dansoko credit at the rate of 1.5:1 for the 332 days he was in custody at the time of the sentencing submissions which equals 498 days of pre-sentence custody. He further asks the court to credit him for 3.5 months for the lockdowns during pre-sentence custody. Counsel submits that Mr. Dansoko should receive a conditional sentence which is divided between house arrest and curfew. He points out that Mr. Dansoko has completed high school and wants to go to college in Construction Project Management. The course begins in September 2024. He asks the court to impose conditions which allow him to go to school with a curfew of 10:00 p.m. to 5:00 a.m. He submits that no further incarceration is necessary for general or specific deterrence. Mr. Dansoko is taking responsibility for his actions; he wants to change.

[35] In support of a conditional sentence, Mr. Pearce submits the case of R. v. Moses, where possession of a firearm arose out of the execution of a search warrant. The gun was not in a public place, and it was not associated with other offences. The accused had no prior criminal record and no prior gun offence. Counsel also provided the case of R. v. McLarty-Mathieu, 2022 ONCJ 498, [2022] O.J. No. 4925 (Ont. Ct. of Justice), where the court imposed a sentence of 20 months served as a conditional sentence followed by 16 months of probation where the offender was youthful, had entered guilty pleas and was remorseful, had no criminal record, armed himself for protection but was not a member of a gang and was drinking heavily at the time.

[36] Mr. Pearce submitted the decision of R. v. Anderson, 2021 NSCA 62, [2021] N.S.J. No. 334 where the Nova Scotia Court of Appeal upheld a sentence imposed by the trial judge of a two-year conditional sentence and two years of probation for firearms offences related to possession of a loaded revolver. During a random traffic stop, the respondent, an African Nova Scotian, was found in possession of a loaded gun which he possessed out of fear that he might be targeted for violence. The respondent’s background included poverty, housing instability, family breakdown, lack of relevant educational opportunities and limited employment prospects. An Impact of Race and Culture Assessment (IRCA) had been prepared and recommended counselling and resources that were relevant to his background.

[37] Mr. Pearce takes the position that the misconduct offences have already been dealt with while Mr. Dansoko has been in custody. He refers the court to R. v. Solomon 2023 O.J. 2004 at paras. 24 and 25. In that case, Goldstein J. referenced another decision in R. v. Gordon 2023 ONSC 1066 regarding the impact of institutional offences where he wrote at para. 25, that he gave the institutional misconducts limited weight because they can be driven by many factors, they do not have to be proven beyond a reasonable doubt but the findings “contribute to the overall picture.” Counsel submits that there are stressors aggravated by lockdowns and limited staffing which results in an increase in misconducts.

[38] In summary, with a custodial sentence of what amounts to 498 days in accordance with Summers and 3.5 months for harsh conditions of pre-sentence custody, a further sentence of 8 months served in the community as a conditional sentence is appropriate. Mr. Pearce says that counselling may be indicated as a condition.

ANALYSIS AND THE LAW

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

[40] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.

[41] I now turn to the relevant jurisprudence concerning the offences in this case. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 78. In R. v. Nur, the Supreme Court of Canada emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19 -year-old first offender.

[42] In the decision of the Court of Appeal at 2013 ONCA 677, Doherty J.A. wrote at para. 206: “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.”

[43] In R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258, the offender was convicted of possession of a loaded prohibited firearm contrary to s. 95(1) of the Code. The Court of Appeal held that the offence was serious, that the principles of deterrence and denunciation are paramount but that those principles could be met without re-incarcerating the offender. The court wrote at para. 19: “…Most s. 95 offences will attract a penitentiary term even for first offenders. Offences like that committed by the respondent, while somewhat less serious than the typical s. 95 offence, will demand the imposition of sentences at or very near the maximum reformatory sentence, even for first offenders…”

[44] The Ontario Court of Appeal also stated in R. v. Morris, at para. 71, that a three-year sentence may be appropriate for “the vast majority of offences” under s. 95 but that various aggravating circumstances may raise the appropriate range of sentence. Where the offender has the gun on his person in a public place and attempts to discard it while escaping from the police, these circumstances all are aggravating factors even though there may be no evidence of other criminality: see R. v. Elliston, 2010 ONSC 6492 at para. 15, R. v. McCue, 2012 ONCA 773 at para. 15, R. v. Brown, 2010 ONCA 745 at para. 7. In R. v. Morris, the Ontario Court of Appeal outlined that where the accused fled from police while armed with a loaded handgun and left the firearm in a public space, these are aggravating factors: see paras. 170, 172.

[45] There is jurisprudence where conditional sentences have been imposed for weapons offences. In the case of R. v. Carter, 2021 ONCJ 561, the accused pleaded guilty to two counts of importing prohibited firearm parts and possessing a prohibited firearm. Mr. Carter was sentenced to 18 months served as a conditional sentence under house arrest and 18 months’ probation. The accused was a 50-year-old man who was a full-time professor at a local college and was a first-time offender. Fergus O’Donnell J. wrote at para. 29: “I have come to the conclusion that a sentence of real jail as sought by Mr. King is not called for. Indeed, I think it would be harmful to Mr. Carter and to his prospects for rehabilitation…”

[46] In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal upheld the trial judges’ sentence of 18 months for the firearms offence but reversed the trial judge who declined to order a conditional sentence saying it was outside of the range affirmed by the Court of Appeal. The court wrote at para. 13 that the trial judge erred as the Court of Appeal has recognized that a conditional sentence may be appropriate in certain circumstances: see R. v. Morris, 2021 ONCA 680. In Desmond-Robinson, the appellant was convicted of firearms-related offences and possession of cocaine and marijuana. The court wrote that “He was a young first offender with considerable potential. Circumstances beyond his control, some of which no doubt reflect systemic racism, diminish his moral culpability. On the record before the trial judge, he was a candidate for a conditional sentence.”

[47] In R. v. Marier, 2023 ONSC 5194, the accused tossed a satchel containing a loaded handgun over a backyard fence while fleeing from police. He pleaded guilty to possession of a loaded prohibited firearm without a licence. Garton J. sentenced him to two years less 46 days of pre-sentence custody served as a conditional sentence, He was a youthful first-time offender who took full responsibility for his actions. He had strong support of his family and community and had been proactive in taking steps towards his rehabilitation while on bail. The court held that he was not likely to reoffend or pose risk to the safety of the public during the period of community supervision.

[48] In the case of R. v. Orin Moses, 2022 ONSC 332, the accused was an early middle-aged first offender who was convicted following a trial of two counts of having possession of a loaded restricted firearm. When police executed search warrants at two residential addresses and an automobile, they found a handgun that contained a magazine loaded with seven rounds of ammunition in the same room where the accused was found. At another residence that he shared with his common law spouse, they found matching ammunition in the pocket of a sweater in a closet mixed among other clothes that he wore regularly. Mr. Moses came to Canada in 1996 from Guyana, pursued an education and received a college diploma. He had a strong and stable family and was in a common law relationship for the past seven years living with his partner and their five-year-old daughter and his twelve-year-old stepdaughter. He also has an 11-year-old son from a previous relationship. He was fully employed and working the night shift. Quigley J. held that a sentence of two years less a day served as a conditional sentence was appropriate for a first-time offender with a stable family life and work background and especially in consideration of the severe immigration consequences that would flow from a period of imprisonment served in custody.

[49] In R. v. Stewart, 2022 ONSC 6997, Copeland J. found the accused guilty of four counts relating to possession of a loaded prohibited firearm with an over-capacity magazine. He had just turned 19 years old at the time of the offence, was a first offender with strong family support and was a young Black man. An Enhanced Pre-Sentence Report had been prepared which discussed his background and showed he had been negatively affected by systemic bias in the educational system which affected his employment history. Justice Copeland wrote at para. 72, “…his responsibility for the offences must be viewed through the lens of his background, including the experience of systemic discrimination.” Applying the decision of Morris, she found that since the range of sentence was in the upper reformatory range because of the offender’s young age at the time of the offence and that he was a first offender, the sentence should be served as a conditional sentence with terms that would meet the objectives of deterrence and denunciation.

[50] In R. v. Beharry, 2022 ONSC 4370, the offender was sentenced following receipt of an Enhanced Pre-Sentence Report, to two years less one day served in the community as a conditional sentence for the offences of possession of a firearm without being the holder of a licence, possession while knowingly not being the holder of a licence and occupying a motor vehicle knowing that a firearm was in it.

[51] In R. v. Lewis, [2022] O.J. No. 872, Boswell J. sentenced a 25-year-old offender for possession of a loaded prohibited firearm and possession of cocaine following guilty pleas to two years for the weapons offence to which he credited for 7 ½ months in custody with two months credit for harsh conditions of incarceration and four months in recognition of stringent bail conditions for the first nine months of release followed by a curfew for 20 months. The sentence was ordered to be served in the community as a conditional sentence.

[52] Finally, in the case of R. v. Hussey-Rodrigues, 2024 ONSC 271, following a no contest hearing, Presser J. found the accused guilty of two counts of possession of a loaded prohibited firearm with no authorization or licence contrary to s. 95(1) of the Code and one count of possession of a prohibited firearm while knowingly not being the holder of a licence contrary to s. 92(1) of the Code. Mr. Hussey-Rodrigues was 18 years old at the time of the offences, had no criminal record, was born in Toronto, had a five-year-old son and was a single parent to the child for nine months. The defence filed several letters regarding his exceptional parenting of a high-needs child. He had a supportive relationship with family and a circle of close friends. He had been on bail for almost five years with a long time on strict house arrest. The aggravating factors were that he was in possession of the handgun in public on a summer evening in a populated residential area. He ran from police knowing that he was in possession of a loaded handgun.

[53] The court was of the view that given Mr. Hussey-Rodrigues’s youth, his lack of a criminal record, his stable and supportive relationships in the community, his well-established track record for rehabilitation, his intent to pursue education and employment and his low risk for re-offending, as well as the collateral consequence of incarcerating Mr. Hussey-Rodrigues when he is a primary caregiver for his son, satisfied her that an appropriate sentence was one of two years less 24 days served as a conditional sentence in the community followed by three years of probation.

[54] Sentences for the offence of fail to comply with recognizance are typically ordered to be served consecutively to any substantive offences in order to demonstrate that the breach is different from the substantive offence and engages different societal interests: see R. v. Maddigan, 2009 ONCA 269 at para. 1. In R. v. Husband, McKelvey J. wrote at para. 43 concerning a breach of a s. 109 prohibition order: “The sentence is consecutive, consistent with the principle that an intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.”

The factor of systemic racism

[55] As discussed above, in the case of R. v. Morris, at paras. 79, and 81, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing.

[56] In Morris, the court discussed that where the past hardship including the factor of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account.

The issue of credit for harsh pre-sentence conditions in the jail

[57] In deciding whether enhanced credit is appropriate for harsh conditions in the jail during pre-sentence custody, the court will consider the conditions of the presentence incarceration and the impact of those conditions on the accused: see R. v. Duncan, at para. 6. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, however, Justice Doherty wrote at para. 52:

Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[58] In the case before me, the information concerning the harsh conditions is referenced from the lockdown records of the jail. Mr. Dansoko did not submit an affidavit outlining the impact of such conditions on him. However, in the case of R.v. Bristol, 2021 ONCA 599, the Ontario Court of Appeal noted at para.11 where the Crown argued that the appellant did not lead any evidence of direct impact on him arising from the lockdowns:

We are of the view that some impact is self-evident. Lockdowns involve lack of showers and loss of physical activity. They also mean that prisoners are restricted to their cells for long periods of time. Individual evidence is not required to establish those basic effects which go beyond the difficult and restrictive circumstances offenders often encounter during pretrial custody and which are accounted for by the Summers credit.

[59] There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. In R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown.

[60] The records from the Toronto South Detention Centre in this case, outline that for the period of August 9, 2022, until July 16, 2023, there were 22 lockdowns which were partial and due to staff shortages. Part of the time was in a period prior to the arrest for these offences which was on June 6, 2023. The records from the Toronto East Detention Centre for the period of July 20, 2023, to April 24, 2024, indicate that for 81 nights Mr. Dansoko was triple bunked. His unit was offered yard for 42% of the days. There were 22 lockdowns mainly due to staffing levels.

[61] Mr. Dansoko had two misconducts on file. As noted above, the first involved an assault on another inmate on November 14, 2023, of which he was found guilty and given consequences of two weeks loss of canteen and two weeks loss of phone and visits. The second misconduct involved possession of pieces of glass which were sharpened at the tip as a makeshift shank/weapon. The correctional officer observed this during a frisk search on March 5, 2024. He was found guilty of possession of contraband and given consequences for his actions.

DECISION

[62] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.

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

[64] Mr. Dansoko is 21 years of age and was born on May 8, 2003, in the Ivory Coast, West Africa. He moved to Canada that same year with his mother. His father had been in Canada since the 1990’s and sponsored him and his mother. He is the oldest of five children. He has two younger sisters and two younger brothers. He was raised in Scarborough, Ontario. His mother works at a nursing home and his father owns a mattress and furniture business. He has a supportive relationship with his family and is very close to his mother. His father has always supported the family financially. His mother describes Salimou Dansoko as “respectful, helpful, and friendly.” Mr. Dansoko has been in a relationship for two years and his girlfriend visits him in custody.

[65] Mr. Dansoko attended a private Islamic elementary and secondary school from grades 1 to 10. He said he had been suspended for behavioural issues such as fighting and problems with teachers. He said he was the victim of being bullied. During high school he would skip classes and had to redo a few courses. After grade 10, he switched schools and attended the public high school. He completed his high school education on-line and received a diploma on June 1, 2023. While he was in custody, he applied to Centennial College to attend a Construction Project Management program. He has plans of working in the construction industry.

[66] Mr. Dansoko said he worked in 2021 in a call centre for six months but was terminated after the employer had concerns about employees smoking. He worked at his father’s furniture business on and off his whole life. Mr. Dansoko said that he was a social drinker and smoked marijuana since age 17 a few times per week. The probation officer described Mr. Dansoko as “cooperative and forthcoming during the interview”. He accepts responsibility for his behaviour. His explanation for having a firearm was, “honestly, I had one because the neighborhood I’m from is dangerous and lot of shootings happened there since I was young, I would hear gun shots all the time. I had a friend that was gunned down a year before and another friend gunned down two years prior. I had seen my friend gunned down with bullet holes for my own self in 2021 I was outside one day, and somebody came, and they tried to shoot at me and my friend, the area is not safe and a lot of shootings. I didn’t feel safe in my neighborhood. I was scared for my life”.

[67] Mr. Dansoko acknowledged to the probation officer that he should not have had a gun. He said he didn’t feel safe, but it is not worth the repercussions and going to jail over it. He agreed that gun violence needs to stop. He told the probation officer that he is not affiliated with street gangs and is trying to distance himself from his prior group of friends. His parents expressed concern with his connection to his peers and associates.

[68] The probation officer expressed the view that there are potential risks regarding poor decision making, engaging in impulsive and risky actions, disregard for public safety, access to weapons and negative peers and/or associates. However, it was noted that Mr. Dansoko has some insight to these concerns and would benefit from counselling. Should the court impose a community supervision order, the author recommended participation in counselling, not to possess weapons, adhere to a curfew and attend school or employment.

[69] With respect to the circumstances of the offences, the offences were possession of a loaded restricted weapon without being the holder of a licence or registration and fail to comply with a release order. Mr. Dansoko discarded a loaded weapon by throwing it from an 11th floor balcony to the ground. He was already on a release order not to possess a weapon.

[70] In terms of mitigating factors, Mr. Dansoko pleaded guilty and has demonstrated remorse, thus taking responsibility for his actions. He has a supportive family. He is a youthful offender. At the time of these offences, he had no criminal record.

[71] The aggravating factors are that the gun was a fully loaded weapon which posed a significant danger, and this type of offence is what the Supreme Court of Canada considered to be at the more significant spectrum of firearm related offences. Mr. Dansoko did not have a firearm licence and the gun was discarded in a very unsafe manner.

[72] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)). R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.

[73] The first pre-requisite for a conditional sentence is that the sentence to be imposed must be less than two years. In my view, the first requirement is not met for the reasons outlined below.

[74] Mr. Dansoko was only 19 years old at the time of the offences. He was on a judicial interim release for other firearms offences at the time of these offences. Mr. Dansoko is fortunate to have a supportive family. However, it is clear that they had no idea what Mr. Dansoko was doing regarding possession of firearms, and they had lost control over his conduct.

[75] Mr. Dansoko has hopes of going to college and pursuing employment in the construction industry. I am hopeful that he will do that. He has not taken initiative while in custody to receive counselling which he clearly needs. This is not a case where he has been released on strict terms of bail and has shown his ability to comply with conditions ordered by the court. On the contrary, he has not shown an ability to abide by court orders through his conduct in being in possession of a weapon while on a global release order prohibiting that.

[76] I have taken into account the mitigating factors that Mr. Dansoko is a youthful offender, with no criminal record at the time, that the possession of the firearm was not connected to other criminal activity, that he has a stable family and that he has pleaded guilty to the offences and expressed remorse. However, the aggravating factors are that he was on a release at the time of these offences, and he discarded a loaded firearm to a public area by throwing it from the 11th floor balcony to the ground and was in breach of a condition that he not possess any weapons. I have considered the impact of systemic racism on his behaviour and the connection to the criminal activity with which he was involved. That is a relevant factor in my view in terms of his exposure to gun violence in his community and that he was in possession of the gun seemingly for self-protection.

[77] As the Court of Appeal has said in Morris, sentencing involves a blending of the objectives set out in s. 718 of the Code and the circumstances of the offender and the offences. In considering all the mitigating and aggravating circumstances including the impact of systemic racism on Mr. Dansoko, I have determined that a global sentence of three years is appropriate. It is in keeping with the jurisprudence and recognizes that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: see s. 718.2(b) of the Code.

[78] Accordingly, I impose a sentence of 2.5 years for the s. 95 offence and 6 months for the fail to comply offence to be served consecutively. This is a global sentence of 3 years or 1,095 days. Mr. Dansoko has been in custody since his arrest on June 6, 2023, for 373 days. In accordance with R. v. Summers, at 1.5:1, which would equal 560 days. In light of the harsh conditions of pre-sentence custody during his incarceration, I further credit him with 3.5 months or 105 days. This leaves a balance to serve of 430 days. I further make an order under s. 109 prohibiting Mr. Dansoko from possessing any weapon as defined by the Criminal Code for life. There will be an order that a sample of his DNA shall be taken. Finally, there will be an order of forfeiture of the gun and ammunition.

Himel J.

Released: June 13, 2024