Court File and Parties

COURT FILE NO.: CR-22-91105070 DATE: 2024-07-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – DAMAINE SITLADEEN Defendant

Counsel: Charles Lamy, for the Crown James Miglin, for the Defendant

HEARD: May 6, 2024

CHARNEY J.:

Reasons for Sentence

1On March 7, 2024, Damaine Sitladeen was found guilty by a jury of:

a. Possession a prohibited firearm, namely a .40 Calibre Glock 27, while knowingly not being the holder of a licence permitting such possession and the holder of a registration certificate for the said firearm, contrary to s. 92(3) of the Criminal Code.

b. Occupying a motor vehicle knowing that there was in that motor vehicle a prohibited firearm, namely a .40 Calibre Glock 27, contrary to s. 94(2) of the Criminal Code.

c. Possession of Fentanyl, contrary to s. 4(1) of the Controlled Drugs and Substances Act.

d. Possession of Cocaine, contrary to s. 4(1) of the Controlled Drugs and Substances Act.

2In addition, following the jury verdict, Mr. Sitladeen was found guilty of possession of a firearm, namely a 40 Calibre Glock 27, 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

3Just after midnight on June 22, 2022, Mr. Sitladeen, who was driving a white Toyota Corolla, was stopped in a RIDE program spot check on the Highway 427 off-ramp at Major Mackenzie Drive in the City of Vaughan. The police ran his licence plate through the computer, and the MTO database indicated that the plate on the vehicle had been reported as “missing”. A “missing” plate should not be on any vehicle on the highway because “missing” means that the owner of the plate is not in possession of the plate. There is a high correlation between missing plates and stolen plates, particularly when a missing plate is attached to a vehicle.

4Mr. Sitladeen was arrested at 12:29 a.m. for possession of stolen property. The details of the arrest are set out in my Charter Ruling: R. v. Sitladeen, 2024 ONSC 582.

5Following the arrest, the police moved the car to the side of the road and began a search of the car incident to the arrest at 12:30 a.m. The police found the ownership documents in the glove box in the front of the car. The ownership listed the Vehicle Identification Number (VIN). The police examined the VIN affixed to the driver’s side dashboard and the VIN on the label affixed to the driver’s side door. The VIN on the ownership was different than the VINs affixed to the vehicle by one digit. A VIN is composed of 17 characters (digits and capital letters); the VINs affixed to the vehicle had only 16 characters. The third digit was missing on the VINs affixed to the vehicle. Moreover, the VIN affixed to the driver’s side door was upside down, and there was a glue mark around the edge indicating that the VIN sticker had been moved. The police queried the VIN number affixed to the car, and no results were found, confirming that it was not a valid VIN. This was evidence that the car was likely stolen and “re-vinned” to mimic another car and conceal that it was stolen.

6The police found photo identification of the Applicant (Health Card and Ontario Photo I.D.) and two packets of powdered substances wrapped in torn white grocery bags in a satchel in the back seat of the car. One powdered substance was white, the other was pink.

7Mr. Sitladeen was re-arrested for possession of a controlled substance.

8The white substance weighed .44 grams, the pink substance weighed .19 grams.

9Samples of the two substances were sent to Health Canada, and the Certificate of Analysis confirmed that the white substance was Cocaine and the pink substance was Fentanyl.

10The police then found a firearm and an over-capacity magazine in a hidden compartment under the center console of the car. Mr. Sitladeen was re-arrested for possession of a firearm.

11The firearm found in the Toyota Corolla was a Glock, Model 27 .40 Calibre handgun. It is a prohibited weapon and was fully operational. Along with the gun, the police found 18 cartridges of .40 calibre ammunition that fit the Glock handgun. One cartridge was chambered, the other 17 were in the magazine that was under the gun.

12The police also found a white powder substance in a ball in a torn grocery bag in the hidden compartment under the centre console. This substance weighed 8.82 grams. The Certificate of Analysis for this substance confirmed that it was Cocaine.

13Finally, the police found three small packets of white powder in Mr. Sitladeen’s pockets when he was searched at the police station. The contents of the three packets combined weighed .21 grams. The Certificate of Analysis for this substance confirmed that it was Cocaine.

14At the time of the offence, Mr. Sitladeen was subject to two s. 109 lifetime prohibitions from possessing firearms dating from a 2010 conviction for armed robbery and a 2013 conviction for armed robbery.

Position of the Parties

15The Crown submits that Mr. Sitladeen should receive an 8.5 year sentence as follows:

a. Possession of a Prohibited Firearm: 7 years

b. Occupying a motor vehicle knowing there was a prohibited firearm in the vehicle: 7 years concurrent

c. Possession of a firearm while prohibited from doing so under s. 109(1): 1 year consecutive

d. Possession of Cocaine: 6 months consecutive

e. Possession of Fentanyl: 6 months concurrent to possession of Cocaine

16The Defence submits that the total sentence should be 5 years as follows:

a. Possession of a Prohibited Firearm: 4 years

b. Occupying a motor vehicle knowing there was a prohibited firearm in the vehicle: 4 years concurrent

c. Possession of a firearm while prohibited from doing so under s. 109(1): 1 year consecutive

d. Possession of Cocaine: 6 months concurrent

e. Possession of Fentanyl: 6 months concurrent to possession of Cocaine

Principles of Sentencing

17The objectives of sentencing have been 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.

18Section 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.

19In reaching a fair and fit sentence I must also consider the principles of totality and parity.

20It 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.

21There 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.

22The 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.

Circumstances of the Offender

23Mr. Sitladeen is now 34 years of age. He was born in Jamaica, and is a Canadian citizen.

24While he was serving time in custody, he obtained his Ontario Secondary School Diploma.

Previous Convictions

25As indicated, Mr. Sitladeen has a criminal record. He pled guilty in June 2010 to robbery with a firearm in 2008. He was sentenced to four years in prison (the mandatory minimum at the time), and given 26 months credit for time served, leaving 22 months to be served. He was also given a s. 109 lifetime prohibition of possessing firearms.

26In June, 2013, Mr. Sitladeen was found guilty of robbery with a firearm, unlawful confinement, and assault causing bodily harm in relation to another 2008 robbery. He was sentenced to a global sentence of 6 years for the three offences and given 32 months credit for pre-trial custody, for a total sentence of 3 years and 4 months. He was also given a second s. 109 lifetime ban.

27Both of these robberies took place in 2008, within 3 days of each other. At the time of both of these offences in 2008, Mr. Sitladeen was 19 years of age.

28Mr. Sitladeen was also sentenced to 6 months in prison for assault with a weapon in 2021. This assault occurred while Mr. Sitladeen was in custody (between 2017 – 2021) for a conviction that was later reversed by the Court of Appeal: R. v. Sitladeen, 2021 ONCA 303. Given the Court of Appeal’s decision, this episode will not be considered as an aggravating factor.

Aggravating and Mitigating Factors

Aggravating Factors

29The most significant aggravating factor in this case is Mr. Sitladeen’s criminal record. He has been twice convicted of gun related crimes in his youth, he received significant penitentiary sentences as a result, but has still re-offended.

30Mr. Sitladeen is no longer a youthful first offender, but a 34 year old man with a criminal record involving firearm related offences.

31The handgun found in the hidden compartment in his car is a prohibited weapon. It was fully operational. Along with the gun, the police found an over capacity magazine, which is a prohibited device. They also found 18 cartridges of .40 calibre ammunition that fit the Glock handgun. One cartridge was chambered in the gun, the other 17 were in the over capacity magazine next to the gun.

32While Mr. Sitladeen was not convicted of possession for the purposes of trafficking, the fact that cocaine and Fentanyl were both found in his possession is another serious aggravating factor. Drugs and guns are a particularly dangerous combination: R. v. Wong, 2012 ONCA 767, at para. 13. The Crown is not asking that I take this into account as an aggravating factor in this case. Instead, the Crown has requested a consecutive sentence for the drug possession.

33In the context of this case, the end result is the same whether I take the drugs into account as an aggravating factor or impose a separate sentence for possession. Either way, the global sentence will be impacted by the totality principle.

Mitigating Factors

34Mr. Sitladeen filed two letters of support, one from his common-law partner and one from his mother-in-law. He has been in a common-law relationship with his partner for 7 years, and they have a 7 year old daughter. His spouse states that he is a “positive influence in our family decisions, even while away from the home, and has shown on multiple occasions that he can be depended on.” This sentiment is echoed by his mother-in-law.

35Defence counsel argues that Mr. Sitladeen did not have these family supports in the past, and that his more stable family situation today will assist in his rehabilitation in the future.

Appropriate Sentence

36Given Mr. Sitladeen’s past record for firearm related offences, I am of the view that the sentence submitted by the Crown is closer to the mark. 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, R. v. David, 2019 ONSC 3758, at paras. 27 – 28, and R. v. Graham, 2018 ONSC 6817, at para. 39.

37That said, those sentences at the higher end of the range appear to be reserved for offenders with even longer records than Mr. Sitladeen, 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.

38Sentences 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.

39See 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.

40See also: R. v. Chambers, 2013 ONCA 680, at paras. 20 – 22.

41The range for s. 109 offences appears to be 6 months to 2 years, consecutive to the sentence for the firearms offence.

42In this case, Mr. Sitladeen was subject to two s. 109 firearms prohibitions.

43Mr. Sitladeen was also found guilty of possession of Cocaine (total 9.2 grams) and Fentanyl (.19 grams). This is a particularly dangerous combination of drugs. While Mr. Sitladeen was not convicted of possession for the purposes of trafficking, possession of this particular combination of drugs merits an additional sentence as proposed by the Crown.

Pre-trial credit

44Mr. Sitladeen was in custody from his arrest on June 22, 2022 until he was granted bail on November 21, 2023. This was a total of 517 days, for which he should receive Summers credit of 776 days (25.5 months or 2 years and 6 weeks) at 1.5:1.

45From November 21, 2023, Mr. Sitladeen was subject to stringent bail conditions. He was subject to an 8:00 p.m. to 6:00 a.m. curfew and only allowed out with his surety. There was, however, no evidence of hardship suffered as a result.

46Defence argues that Mr. Sitladeen should receive 1 to 2 months credit for stringent bail conditions (Downes credit) and a further 5 or 6 months (Duncan credit) for lockdown days while in custody: R. v. Duncan, 2016 ONCA 754.

47In R. v. Downes, 2017 ONCA 599, the Ontario Court of Appeal recognized that time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentence. While the amount of credit to be given for time spent on bail is within the discretion of the sentencing judge, a number of factors must be considered in the assessment. The Court did not adopt a rigid formula because there can be a wide variation in bail conditions.

48When an offender seeks credit for stringent bail conditions, the focus of the inquiry is on the impact of the conditions on the offender and whether they were punitive enough to be akin to punishment (R. v. Joseph, 2020 ONCA 733, paras. 107-108, R. v. Schlaepfer, 2022 ONCA 566, paras. 13, 20-21). Downes imposes an onus on the offender to put forward the hardship: R. v. G.C., 2010 ONCA 539, at para. 3.

49The amount of credit to give is within the sentencing judge’s discretion. There is no mathematical way to calculate Downes credit, which is properly understood as a mitigating factor on sentence because stringent bail conditions are punitive and thus akin to custody. In assessing the appropriate weight of mitigation to be given, factors to be considered include the amount of time spent on bail conditions, stringency of the conditions, their impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and activity (R. v. Joseph, para. 108, and R. v. Place, 2020 ONCA 546, para. 2).

50In the present case I did not hear evidence of hardship, and I am not prepared to infer hardship simply from the terms of the bail.

51While at the Maplehurst Correctional Complex Mr. Sitladeen was subject to full lockdown for 44 of 167 days. At the Central East Detention Center, he was on full lock down for 67 of 239 days and was triple bunked for 15 days. At the Central North Correction Center, he was on full lockdown for 60 of 167 days.

52Mr. Sitladeen argues that he should receive an additional 5 – 6 months credit for the harsh conditions he was forced to endure during his pre-trial custody.

53The Crown had no objection to Duncan credits, and left it to the Court to assess the appropriate credit in this case.

54“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, paras. 50-52).

55In assessing Mr. Sitladeen’s sentence, I have taken the “Duncan” credit into account in arriving at the appropriate sentence in this case.

56Mr. Sitladeen, please rise.

57In the present case, I find that a global sentence of 7 years and 3.5 months (87.5 months) is the appropriate sentence, taking into account the totality principle and the factors discussed above. This sentence is comprised of:

a. Six years for Possession of a Prohibited Firearm.

b. Six years concurrent for the offence of occupying a motor vehicle knowing there was a prohibited firearm in the vehicle.

c. One year consecutive for Possession of a firearm while prohibited from doing so under s. 109(1).

d. Possession of Fentanyl: 3.5 months consecutive.

e. Possession of Cocaine: 3.5 months concurrent with the possession of Fentanyl.

58From that sentence is deducted the 25.5 months of pre-trial custody, leaving 62 months – (5 years and 2 months) total.

59In addition, 3 ancillary orders are granted: a mandatory lifetime s. 109 order prohibiting weapons; a DNA order; and forfeiture of seized property.