Court File and Parties

Court File No.: CR-22-91100885-0000 Date: 2024-07-29 Ontario Superior Court of Justice

Between: His Majesty The King And: Shamar Cole, Defendant

Counsel: Avik Ghosh, for the Crown James Miglin, for the Defendant

Heard: May 6, 2024

Reasons for Sentence

Charney J.:

[1] On January 31, 2024, Shamar Cole was found guilty by a jury of 19 counts. Four counts related to possession of drugs, 15 counts related to firearm offences, as follows:

1. Possession of Cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act.
2. Possession of Cocaine (crack) contrary to s. 5(2) of the Controlled Drugs and Substances Act.
3. Possession of Methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act.
4. Possession of Fentanyl contrary to s. 5(2) of the Controlled Drugs and Substances Act.
5. Possession a prohibited firearm, namely a Glock handgun, while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(1) of the Criminal Code.
6. Possession of a prohibited firearm, namely a second Glock handgun, contrary to s. 92(1) of the Criminal Code.
7. Possession of a prohibited firearm, namely a Taurus handgun, contrary to s. 92(1) of the Criminal Code.
8. Possession of a prohibited device, namely a detachable box cartridge magazine, contrary to s. 92(2) of the Criminal Code.
9. Possession of a prohibited device, namely a second detachable box cartridge magazine, contrary to s. 92(2) of the Criminal Code.
10. Possession of a prohibited device, namely a third detachable box cartridge magazine, contrary to s. 92(2) of the Criminal Code.
11. Possession of a prohibited device, namely a fourth detachable box cartridge magazine, contrary to s. 92(2) of the Criminal Code.
12. Possession of a prohibited device, namely a fire selector switch, contrary to s. 92(2) of the Criminal Code.
13. Possession of a prohibited device, namely a second fire selector switch, contrary to s. 92(2) of the Criminal Code.
14. Storing a firearm, namely a Glock handgun, without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code.
15. Storing a firearm, namely a second Glock handgun, without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code.
16. Storing a firearm, namely a Taurus handgun, without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code.
17. Possession of a loaded prohibited firearm, namely a Glock handgun, contrary to s. 95(1) of the Criminal Code.
18. Possession of a loaded prohibited firearm, namely a second Glock handgun, contrary to s. 95(1) of the Criminal Code.
19. Possession of a loaded prohibited firearm, namely a Taurus handgun, contrary to s. 95(1) of the Criminal Code.

[2] In addition, following the jury verdict, Mr. Cole was found guilty of six counts of possession of a firearm while prohibited from doing so by reason of an order made under s. 109(1), contrary to s. 117.01(3) of the Criminal Code.

Facts Relating to the Offence

[3] The facts relating to the investigation and arrest of Mr. Cole are set out in detail in my Ruling on Mr. Cole’s Charter application: R. v. Cole, 2024 ONSC 263.

[4] On February 1, 2022, Mr. Cole was arrested inside of a condominium unit on the 12th floor of a condominium on South Park Road in Thornhill, Ontario. The police had gone to the unit to arrest another individual, and initially arrested Mr. Cole in the mistaken belief that he was the person they had come to arrest.

[5] Just before the arrest, Mr. Cole threw a backpack and other objects off the balcony of the unit. The police found the backpack lying in the snow on the ground beneath the balcony. Mr. Cole was arrested when the police opened the backpack and discovered its contents.

[6] In the backpack, the police found:

a. 919.52 grams of cocaine b. 379.5 grams of fentanyl c. 135.96 grams of crack cocaine d. 123.26 grams of methamphetamine e. 3 handguns with overcapacity magazines and ammunition: i. a Glock handgun, 9mm magazine and 24 cartridges ii. a second Glock handgun, 9mm magazine and 18 cartridges iii. a Taurus handgun, magazine and 13 cartridges

[7] Following the arrest, the police used the canine unit to search the grounds and found a fourth gun cartridge magazine and a GPS tracking unit that Mr. Cole had thrown from the balcony over the fence just beyond the condominium.

[8] Each handgun and each magazine and other devices (fire selector switch) are prohibited weapons. All three handguns were verified as capable of discharging ammunition and “functioned as designed”.

[9] The three handguns all had barrel lengths of less than 105 mm in length, which is prohibited by the Criminal Code.

[10] The two Glock handguns had fire selector switches installed, making the firearm capable of operating as an automatic weapon. Fire selector switches are prohibited devices.

[11] The four magazines were all capable of holding more than 10 cartridges, and were thus prohibited weapons.

[12] All three guns found in the backpack were loaded with magazines that contained cartridges. None of the guns were locked.

Position of the Parties

[13] The Crown seeks a global sentence of 17 years as follows:

a. 10 years for each of the 15 firearms offences, all concurrent; b. 5 years consecutive for the four drug offences; and c. 2 years for possession of a firearm while prohibited from doing so under s. 109(1).

[14] The Crown also proposed alternate combinations of concurrent and consecutive sentences, but the bottom line was a 17 year global sentence.

[15] The Defence argues that the sentence should be 5 years. Four years for the firearms offences and one year consecutive for the violation of the s. 109 prohibition. This would place Mr. Cole at the lowest end of the range for recidivist gun offenders.

[16] The Defence position is based on the fact that the jury did not find Mr. Cole guilty of possession for the purposes of trafficking, but only simple possession. This, the Defence argues, indicates that the jury accepted Mr. Cole’s evidence that the contents of the backpack and the fourth magazine did not belong to him, but to his girlfriend, and that he had no idea what was in the backpack or what the fourth magazine was when he threw them over the balcony at her direction. He was, at worst, willfully blind about the contents of the backpack and the fourth gun magazine when he threw them over the balcony before his arrest.

Principles of Sentencing

[17] The objectives of sentencing are codified in s. 718 of the Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and, promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[18] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

[19] In reaching a fair and fit sentence, I must also consider the principle of totality.

[20] It is well-recognized that for offenders convicted of possession of a loaded firearm, the primary focus of sentencing will be on denunciation and deterrence. “Handguns are an all too prevalent menace in the Greater Toronto Area. First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.”: R. v. Brown, 2010 ONCA 745, at para. 14. That does not mean that rehabilitation can be ignored, nor does it mean that proportionality in sentencing is no longer an applicable principle. Sentencing is a highly individualized process and particular circumstances relating to blameworthiness, prospects for rehabilitation and the like must always be taken into account. However, where loaded firearms are involved, the degree of danger to our community mandates an emphasis on deterrence and denunciation.

[21] There are a multitude of cases describing the gravity of gun crimes and the particular danger posed by loaded handguns in public places. In R. v. Morris, 2021 ONCA 680, the Court of Appeal stated, 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. 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’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.

[22] The Court also stated, at para. 71:

Apart from the specific provisions in the Criminal Code, Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category.

[23] The totality principle is particularly applicable to this case given the number of charges involved.

[24] Section 718.2 (c) of the Criminal Code provides as follows:

A court that imposes a sentence shall also take into consideration the following principles:

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

[25] Chief Justice Lamer, speaking for the court in R. v. M.(C.A.), 1996 SCC 230, described the totality principle at para. 42:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the “totality principle”. The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is “just and appropriate”.

[26] As a result of the totality principle, many of the sentences for individual counts in this case will run concurrently rather than consecutively.

Circumstances of the Offender

[27] Mr. Cole was 30 years old at the time of his trial. He was born in Toronto. He did not finish high school. He has worked occasionally installing flooring but is often supported through social assistance (Ontario Works).

[28] Mr. Cole’s father was murdered in 2010 when Mr. Cole was 16 years old. This event had a devastating impact on Mr. Cole and his siblings. By all accounts, Mr. Cole remains close with his siblings and their children. He also has three children of his own, ranging in age from 2 to 10 years old. He is separated from their mother.

Previous Convictions

[29] Mr. Cole has two previous convictions.

[30] In January 2017 Mr. Cole was convicted of possession of a Schedule 1 substance for the purposes of trafficking. He received custodial sentence of 2 years, 1 month and 15 days after being given credit for 6 months and 15 days pre-sentence custody. He was also subject to a s. 109 firearms prohibition.

[31] In November 2019, Mr. Cole was convicted of possession of a loaded prohibited or restricted firearm and with failure to comply with bail conditions. He received a custodial sentence of 19 months after being given credit for 17 months pre-sentence custody. He was subject to a second s. 109 firearms prohibition.

Aggravating and Mitigating Factors

[32] In assessing the aggravating and mitigating factors for the purposes of sentencing, I must determine the facts necessary for sentencing from the issues before the jury and the jury’s verdict: Criminal Code, s. 724(2).

[33] In R. v. Ferguson, 2008 SCC 6, the Supreme Court considered the difficulty this may present when the verdict is decided by a jury. The Court stated, at paras. 16-18:

The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict”: R. v. Brown, [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e)); see also R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[34] The second point referenced above – that “when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury”, is significant in this case. A jury’s verdict may reflect a bottom line consensus achieved through various paths (Cheung v. Samra, 2022 ONCA 195, at para. 58). The final jury instructions in this case included the following standard instruction:

Although your verdict must be unanimous, the path each of you takes and the evidence on which each of you relies to reach that conclusion need not be the same. All of you may be satisfied of the accused’s guilt beyond a reasonable doubt even though, individually, you have different views of the evidence. Or, in a similar way, all of you may have a reasonable doubt about an accused’s guilt, but do not agree why. It matters not as long as your verdict for that accused is unanimous.

[35] Given this instruction, it is a fool’s errand to try to reconstruct the logical process of the jury in arriving at the verdict. There could easily be more than one such process. The members of the jury may not have agreed on certain facts, but still arrived at the same verdict through different paths. As the Court of Appeal stated - in the context of a civil jury but equally applicable to criminal juries - “Jury deliberations are not transparent, and there is an element of inscrutability to every jury verdict.”: Cheung, at para. 71.

[36] For this reason, I will not, as suggested by Defence counsel, consider the questions posed by the jury during their deliberations to try to divine the facts relied on for their verdict. A question posed by the jury does not reflect a consensus by the jury. Questions posed by the jury may reflect the confusion or uncertainty of a single juror before any verdict is achieved. Jury questions should not be confused with reasons, nor should the court try to extract reasons from a question. Using jury questions to discern facts is akin to reading tea leaves.

[37] In this case, the jury found Mr. Cole not guilty of possession for the purposes of trafficking, but guilty of the lesser offence of possession. At the same time, the guilty verdict indicates that the jury rejected Mr. Cole’s “hot potato” defence.

[38] Mr. Cole testified that he did not know what was in the backpack which he testified his girlfriend handed to him and told him to throw over the balcony and that he just followed her directions because she was panicking. He also testified that he did not see what the brown plastic object he threw off the balcony was when he threw it. The jury rejected this evidence in finding Mr. Cole guilty of possession of drugs and firearms.

[39] The jury had – at the very least – a reasonable doubt about Mr. Cole’s purpose for possessing the drugs. Where, as here, there are multiple reasoning paths that could lead to this reasonable doubt, the Court “should not attempt to follow the logical process of the jury” and conclude that one reasoning path is the correct one.

[40] The jury also found Mr. Cole guilty of 15 of the 16 possession of firearms related counts. The jury was unable to reach a verdict on one count relating to whether Mr. Cole knew that the serial number on one of the guns had been defaced. The inability to reach a verdict is not a consensus. I cannot make any factual findings based on the jury’s inability to reach a verdict on this charge.

[41] In the final analysis, the jury had no doubt that Mr. Cole was in possession of the drugs and the firearms. The jury’s reasonable doubt was with respect to Mr. Cole’s purpose for possessing the drugs. Based on this verdict, I cannot include “for the purposes of trafficking” as an aggravating factor for any of the offences.

Aggravating Factors

[42] There are numerous aggravating factors in this case. The first is the fact that Mr. Cole was in possession of not just one gun, but a veritable arsenal of prohibited handguns, overcapacity magazines and multiple cartridges. Two of the guns were equipped with fire selector switches installed, making the firearm capable of operating as an automatic weapon. All three firearms, all four magazines, and both fire selector switches were prohibited weapons. The guns were all loaded with extended magazines and unlocked.

[43] Mr. Cole attempted to evade the police by discarding the weapons in a public place – he threw them over the balcony and onto the lawn below, where they were accessible to anyone who happened by.

[44] Another aggravating factor is the very large quantity and variety of drugs found in the backpack, including fentanyl. While this factor would be more significant if this were a possession for the purposes of trafficking conviction, it is not something that should be ignored in a simple possession case, and large quantities and variety may be an aggravating factor even in a simple possession case: R. v. Oduro, 2022 ONSC 530, at para. 22.

[45] Like the firearms, the drugs were thrown over the balcony onto the lawn below and were accessible to any person in the area.

[46] Mr. Cole has a prior criminal record for both possession of Schedule 1 drugs and possession of a loaded prohibited or restricted firearm. These are both relatively recent convictions (2017 and 2019). The present arrest is from 2022, indicating that Mr. Cole is an adult repeat offender who did not spend much time out of prison before reoffending with more serious offences.

[47] Mr. Cole is also subject to two previous s. 109 weapons prohibitions.

[48] Another factor relied on by the Crown is Mr. Cole’s failure to comply with his bail conditions. While Mr. Cole was out on bail on these charges, one of his conditions was that he wear GPS monitoring equipment at all times. On April 1, 2022, Mr. Cole cut off the ankle monitor and left the residence without his surety. He was rearrested. The Crown argues that while this is not an aggravating factor, it is a factor that undermines any argument regarding Mr. Cole’s rehabilitative prospects or suggestion that Mr. Cole has shown any remorse for his actions. This conduct is not consistent with the description of Mr. Cole in the letter of support written by his sister-in-law or his prospects for rehabilitation outlined in the other support letters.

[49] The Crown also argues that the breach of the bail conditions disqualifies Mr. Cole from any Downes credit for the time he was under house arrest, a position which is not contested by the Defence: R. v. Graham, 2018 ONSC 6817, at para. 31.

Mitigating Factors

[50] In mitigation, Mr. Cole relies primarily on Morris factors: his difficult childhood, particularly the murder of his father when Mr. Cole was only 16 years of age. As indicated above, this event had a profound and devastating effect on Mr. Cole and his family. Mr. Cole did not complete high school and has had difficulty maintaining employment.

[51] In addition, Mr. Cole has spent nearly 200 days in lockdown and more than 150 nights triple bunked while in pre-trial detention and seeks 6 to 12 months “Duncan” credit for these conditions.

[52] “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. The Duncan credit should not be calculated as an enhancement of the Summers credit but must be assessed independently. The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence (R. v. Marshall, 2021 ONCA 344, at paras. 50-52).

[53] The Crown acknowledges that the lockdown and triple bunking in this case merits some mitigation of sentence, and does not oppose the 6 months proposed by Defence.

Appropriate Sentence

[54] The 17 year global sentence submitted by the Crown would be within the appropriate sentencing range had Mr. Cole been found guilty of possession for the purposes of trafficking. The combination of the arsenal of prohibited weapons and the large quantity and variety of drugs found, combined with Mr. Cole’s previous criminal record, could easily justify a global sentence in that range: R. v. Parranto, 2021 SCC 46.

[55] Mr. Cole was, however, found guilty of simple possession, and I agree with the Defence that this changes the calculation. I do not, however, agree that it puts Mr. Cole at the lowest end of the range for these offences given his specific circumstances and the aggravating factors.

[56] As I review the cases, sentences for prohibited firearm recidivists range from six to nine years: see the sentences reviewed in R. v. Dawkins, 2021 ONSC 4526, R. v. McNichols, 2020 ONSC 6499, at paras. 20-29 and R. v. David, 2019 ONSC 3758, at paras. 27-28. In R. v. Graham, 2018 ONSC 6817, Code J. summarized the range for s. 95 recidivists at para. 39:

In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles (2013), 2013 ONCA 681, 303 C.C.C. (3d) 352 (Ont. C.A.) and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. J.G., 2005 ONSC 4599; R. v. Alexander, 2012 ONSC 6117; R. v. Dunkley, 2014 ONSC 3062.

[57] In the present case, the number and type of firearms, including three loaded handguns, each with an overcapacity magazine, two of which had been converted to automatic weapons, and a fourth overcapacity magazine, all of which were discarded in a public place by Mr. Cole in order to hide them from the police, places Mr. Cole within the six to nine year range as a s. 95 recidivist.

[58] Sentences at the higher end of the range appear to be reserved for offenders with even longer records than Mr. Cole, or cases where the gun was discharged, or cases where there was also a conviction for possession for the purposes of trafficking. Sentences below six years appear most commonly where there has been a guilty plea.

[59] Sentences for breaches of s. 109 orders should be served consecutively to any substantive offence: R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598:

In the absence of a consecutive sentence, the accused effectively receives no greater punishment as a result of his clear violation of a previous court order. The 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.

[60] See also: R. v. Graham, 2018 ONSC 6817, at para. 41:

I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning.

[61] See also: R. v. Chambers, 2013 ONCA 680, at paras. 20-22.

[62] The range for s. 109 offences appears to be 6 months to 2 years, consecutive to the sentence for the firearms offence.

[63] In this case, Mr. Cole was subject to two s. 109 firearms prohibitions. Given the quantity and type of firearms in his possession, his sentence should be closer to the upper end of this range.

[64] Mr. Cole was also found guilty of possession of cocaine (919.52 grams), fentanyl (379.5 grams), crack cocaine (135.96 grams), and methamphetamine (123.26 grams).

[65] This is a particularly large and dangerous combination of drugs. The expert evidence at the trial was that fentanyl is sold in .10 gram “hits” and that 379.5 grams is enough for 3,795 hits. While Mr. Cole was not convicted of possession for the purposes of trafficking, possession of this combination of drugs merits a consecutive sentence, although not as high as that proposed by the Crown.

[66] The maximum sentence that can be imposed for simple possession of any Schedule I drug is seven years.

[67] I have been unable to find any cases involving sentences for simple possession of Schedule I drugs in the quantities found in this case. Most simple possession cases relate to addicts who have small amounts of fentanyl for personal use. There is no evidence that Mr. Cole is an addict or uses any of these drugs, which could have been a mitigating factor.

[68] The reported cases dealing with sentencing of addicts possessing small quantities of one or two drugs generally impose probationary terms, conditional sentences or custodial terms of a few months or less. In R. v. Long, 2021 ONSC 4747, Boswell J. concluded, at para. 22, that the range for simple possession of cocaine “falls between a discharge on the low end and six months in custody on the high end”.

[69] Examples of these cases include: R. v. Tremblay, 2022 ONSC 2983, and cases reviewed therein; R. v. Tekolla, 2022 ONCJ 99; R. v. Davison, 2021 ONCJ 492; R. v. Lariviere, 2020 ONCA 324; R. v Cameron, 2023 ONSC 3767, at para. 77; R. v. Lewis, 2022 ONSC 1260; and R. v. Yasin Patel, 2019 ONSC 6302.

[70] With regard to simple possession of drugs, this is a unique case. There are no reported cases where a person in possession of such large quantities of drugs was not found guilty of possession for the purposes of trafficking.

[71] Even interpreting the jury verdict at its most charitable – that Mr. Cole was guilty of willful blindness when he followed his girlfriend’s direction and threw the backpack off the balcony and onto the condominium grounds 12 stories below in order to hide it from the police – Mr. Cole’s conduct was a danger to the community. Numerous cases have recounted the lethal danger of fentanyl to the community, see for example: R. v. Loor, 2017 ONCA 696, at para. 33; R. v. Olvedi, 2018 ONSC 6330, at paras. 12-48. Throwing 379.5 grams (3,795 hits) of fentanyl into a public place presented a great danger to public safety, a danger that cannot in any way be compared to possessing small quantities of fentanyl for personal use. The same observation can be made about the three other drugs found in the backpack.

Pre-trial Credit

[72] When sentencing submissions were made on May 6, 2024, Mr. Cole had a total of 722 days of pre-sentence detention. That total has now increased to 806 days, for which he should receive Summers credit of 1,209 days (3 years and 4 months) at 1.5:1.

[73] In addition, I will reduce his global sentence by six months to account for “Duncan credit” related to the lockdowns and triple bunking during this pre-trial period.

Conclusion

[74] Mr. Cole, please rise:

[75] Given your prior criminal record and the quantity of loaded prohibited weapons and the quantities and varieties of drugs in your possession, I conclude that a global sentence of 10 years is the appropriate sentence, taking into account the totality principle and the other factors discussed above. This sentence is comprised of:

a. 7 years for each of the s. 92 and s. 95 possession offences – to run concurrently. b. 2 years for each of the s. 86 unsafe storage of a firearm offences, to run concurrently with the s. 92 and s. 95 offences. c. 18 months consecutive for each of the six possession of a firearm while prohibited from doing so under s. 109(1) offences (consecutive to the s. 92 firearms offences but concurrent with each other). d. 18 months consecutive for each drug offence (consecutive to the s. 92 firearms offences but concurrent with each other).

[76] From that sentence will be deducted 3 years and 4 months for Summers credit and an additional 6 months for Duncan credit, leaving 6 years and 2 months (74 months) remaining.

[77] In addition, 3 ancillary orders are granted: a mandatory lifetime s. 109 order prohibiting weapons; a DNA order; and forfeiture of seized property.

Justice R.E. Charney Released: July 29, 2024