Court File and Parties
COURT FILE NO.: CR-22-163 DATE: 2024-08-02 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: His Majesty the King AND Idrisso Palmer
BEFORE: Justice Spencer Nicholson
COUNSEL: A. Campbell, for the Crown M. Farquhar, for Mr. Palmer
HEARD: July 3, 2024
Sentencing Reasons
NICHOLSON J. (ORALLY):
[1] By Reasons dated August 23, 2023, I dismissed Mr. Idrisso Palmer’s pre-trial Charter application seeking to exclude a loaded firearm from evidence at trial. As a result, he was found guilty of possession of a firearm knowing he was unauthorized pursuant to s. 92 of the Code and possession of a loaded firearm pursuant to s. 95 of the Code. Those convictions stem from a police search of Mr. Palmer that occurred on March 6, 2021.
[2] Today, I impose sentence and deliver my Reasons for that sentence.
[3] At the outset, I quote from the Court of Appeal in R. v. Morris, 2021 ONCA 680, at para.80: “there is seldom one and only one fit sentence”. I have spent considerable energy determining how to weigh deterrence and denunciation in this case, with appropriate recognition for Mr. Palmer’s relative youth, the fact that he is a first-time offender and that, in my view, he has positive prospects for rehabilitation. While deterrence and denunciation are paramount in firearm offences, I believe that Mr. Palmer can still be a productive member of society.
[4] Quite simply, these are not easy decisions and I fully appreciate the impact my decision will have on Mr. Palmer’s life. I also appreciate that this community has seen an alarming increase in gun violence and needs to feel that justice has been done. It is important that these never become easy decisions.
[5] Mr. Palmer was born on February 27, 1998. He was 23 at the time of the offence and is now 26. I consider Mr. Palmer a young man. He has no prior convictions and is accordingly, to be sentenced as a first-time offender.
[6] Mr. Palmer is Black. The sentencing hearing was postponed to provide him an opportunity to obtain an IRCA (Impact of Race and Culture Assessment) report to assist the court in understanding the impact of anti-Black racism as described in R. v. Morris. I will describe that report as a “Morris report”. The delays in obtaining such reports have become notorious and finally I advised counsel that I wished to proceed with respect to sentencing, recognizing the court’s ability to take judicial notice of the existence and impact of anti-Black racism. Admittedly, I gave defence counsel considerable leeway in making submissions of Mr. Palmer’s experience as a young Black man.
[7] The Crown seeks a sentence of 3 years, less any applicable credit for pre-sentence custody. However, the Crown disputes that a further Downes credit ought to apply. The Crown also seeks a secondary DNA order, a s. 109 weapons prohibition for 20 years and a forfeiture order in relation to the firearm and ammunition.
[8] The Defence position is that this is an appropriate case for a conditional sentence. In support of that submission, the Defence argues that the court should recognize the role of anti-Black racism in this case, as well as reduce his sentence on account of strict bail conditions (a “Downes” credit). The Defence takes no issue with the proposed ancillary orders.
Principles of Sentencing
[9] The fundamental purpose of sentencing under s. 718 of the Code is to protect society and to contribute “to respect for the law and the maintenance of a just, peaceful and safe society”. The ultimate goal of a judge in determining a just sentence is to impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[10] The objectives of sentencing to be considered by the judge are enumerated in s. 718 of the Code. In firearm offences, the primary considerations are deterrence and denunciation. In cases involving young first-time offenders, the court must also consider the offender’s prospects for rehabilitation.
[11] Sentencing is a highly individualized, discretionary process. However, the principle of parity requires the court to impose similar sentences to those in similar circumstances who have committed similar offences. The principle of restraint reminds judges to impose the shortest possible sentence in cases involving first time offenders. However, the sentence must still be consistent with the relevant sentencing principles, including proportionality to the gravity of the offence. Nonetheless, while the objectives of denunciation and deterrence must be given adequate weight, they should rarely be the sole determinants of the length of a first penitentiary sentence (see: R. v. Francis, 2022 ONCA 729, at para. 80).
[12] There are no shortage of cases expressing judicial concern over the prevalence and seriousness of crimes involving firearms in Ontario. The Crown referred to many cases where my judicial colleagues have used strong language denouncing firearm possession and stressing the need for exemplary sentences emphasizing denunciation and deterrence. Guns are designed for only one purpose—to kill. Loaded guns present a grave danger to all those who come in proximity to them, including those who do so innocently.
[13] In Morris, the Ontario Court of Appeal described at paragraph 68, as follows:
[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.
[14] I have read all of the cases submitted or referred to by both sides. In particular, I would like to draw attention to the comments in the following cases regarding firearm offences, which I have reviewed and considered:
- R. v. Williams, 2018 ONSC 5409, paras. 33 to 41;
- R. v. Wong, 2012 ONCA 767 (toxic combination of drugs and guns);
- R. v. Ferrigon, [2007] OJ No. 1883 (Ont. Sup.Ct.), at para. 25;
- R. v. St. Clair, 2018 ONSC 7028, at paras. 47 and 49;
- R. v. Kawal, 2018 ONSC 7531, at paras. 11 to 16;
[15] Although it would benefit Mr. Palmer to have me review those sentiments, I am not going to take the time to do so. These cases confirm the judiciary’s distress regarding the rampant frequency of firearm related offences, and the dangers that firearms pose. I must not lose sight of those concerns here.
Circumstances of the Offences
[16] There is no question that offences involving firearms, particularly loaded firearms, are very serious. The Defence concedes that the offences which Mr. Palmer was convicted of are serious offences.
[17] In this particular case, Mr. Palmer was discovered by the police in the middle of the night sitting with three associates in a running vehicle in the parking lot of a motel. According to the evidence of the police, it was an area notorious for criminal activity. Occupants of the vehicle were consuming marijuana. I found that this permitted a search of the vehicle and its occupants pursuant to the Cannabis Control Act, 2017. The search of Mr. Palmer resulted in the discovery of a small, loaded handgun, as well as 15 g of cocaine. The Crown points out that the handgun was a .25 calibre Lorcin L25. It has a capacity of 7 rounds and was test-fired successfully by the police.
[18] I note that Mr. Palmer was cooperative at the scene, although he did not voluntarily divulge the presence of the firearm. He did not brandish or threaten the investigating officers with the weapon. He did not physically resist or attempt to flee the scene, like in many of the cases provided by the Crown.
Circumstances of the Offender
[19] There is a favourable pre-sentence report.
[20] Mr. Palmer was born and raised in Windsor, Ontario. His parents separated when he was four years old and he had no meaningful relationship with his father, who lived in Detroit. He has four older half-siblings, but only has a relationship with the sister born of his mother. Importantly, Mr. Palmer had no male role models growing up. He was the “man of the house” at age 5. Accordingly, Mr. Palmer was raised by his single mother, who was assisted by his maternal grandmother. His mother suffered from medical conditions such that she could not work. Accordingly, their household was substantially disadvantaged economically.
[21] Mr. Palmer is single. However, he has developed a strong bond with his nephew. This bond developed during the period of bail in which Mr. Palmer resided with his grandmother and the nephew. The nephew’s mother is not part of the household at present. Mr. Palmer has taken on a role of a male father figure for his nephew. In that regard, Mr. Palmer spoke at length about this relationship during his opportunity to address the court during the sentencing hearing. It is clearly an important relationship in his life and in his nephew’s life.
[22] Mr. Palmer was expelled from grade ten for engaging in a fight with another student. He was out of school at the age of 15. During his period of judicial interim release, Mr. Palmer obtained his high school diploma online. I find that to be an encouraging sign.
[23] As a young man, Mr. Palmer was accused of having committed a very serious offence and spent 33 months in pre-trial custody. Those charges were eventually withdrawn when another person admitted to having committed the crime. However, Mr. Palmer felt the allegations had a significant negative impact on his reputation within the community. It also made him a target for those that believed that he was involved in the offence and should not have been released. This, according to Mr. Palmer, caused him significant fear such that he did not regularly leave his grandmother’s house while on bail and caused him to carry a firearm for protection.
[24] As noted, Mr. Palmer took the opportunity afforded to him to address the court at length. I was pleased that he chose to do so as it is my experience that few offenders are comfortable speaking in court. It greatly assists the court to hear from the offender. Mr. Palmer spoke for approximately 20 minutes.
[25] Mr. Palmer expressed understanding with respect to the gravity of the offences and accepted responsibility for having the firearm. He spoke about his experiences as a young Black man in jail and how rough it was. He spoke about not having a childhood and that he did dumb things in order to protect himself. He spoke about how his reputation in Windsor was ruined by the offence for which he was incarcerated before the charges were dismissed. He also expressed a desire to get his life in order, to move from Windsor if possible and to attempt to assist raising his nephew. He expressed concern that a return to jail would result in the continuation of this cycle of criminal activity.
[26] I am mindful of the fact that the Crown did not have an opportunity to cross-examine Mr. Palmer and the opportunity given to an offender to address the court is not an opportunity to provide untested evidence. Nonetheless, I thought that Mr. Palmer did a tremendous job expressing himself, using language that he was comfortable with. I accept the sincerity of his comments.
Considering Other Firearm Cases
[27] Both counsel provided me with considerable case law. As noted earlier, the parity principle requires the court to consider such cases to ensure that Mr. Palmer is treated comparably to those similarly situated. However, every sentencing decision must still be individually tailored.
[28] With respect to firearm offences, the starting point is R. v. Nur, 2015 SCC 15, a decision of the Supreme Court of Canada. I note that Nur was 19 years old and a first-time offender. He was an exceptional student and athlete. The gun of which he was convicted of possessing was a .22 calibre loaded handgun. He was sentenced to 40 months, less credit for pre-trial custody. Despite ruling that the mandatory minimum sentence under s. 95 was unconstitutional, both the Ontario Court of Appeal and the Supreme Court upheld that 40-month sentence. At paragraph 82, the Supreme Court described that most s. 95(1) cases “may well merit a sentence of three years or more”. The Court described that at one end of the range is the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. At the other end of the spectrum is a gun owner who commits a regulatory offence.
[29] In R. v. Mansingh, 2017 ONCA 68, the Ontario Court of Appeal upheld a 43-month sentence and noted that these types of offences require the imposition of substantial jail terms even if the offender is young and has no criminal record (see at para. 24). A distinguishing feature was that the judge in that case found that the offender was involved in drug trafficking, he fled the police and he threw the loaded weapon away in a place where it could have easily been found by a young child. See also R. v. Marshall, 2015 ONCA 692.
[30] In R. v. Smickle, 2014 ONCA 49, the Court of Appeal overturned a 5-month conditional sentence arising out of a conviction for possession of a loaded prohibited firearm. After considering credits, the sentence was effectively 12 months. This was determined to be manifestly inadequate. The court accepted that a sentenced of 2 years less a day was adequate. However, the court did note, at para. 19, that “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.” Of note, incarceration was imposed, although the execution of that sentence was stayed. It is important to understand that Mr. Smickle had been sitting on a couch in an apartment taking pictures of himself with another person’s firearm. Mr. Palmer’s actions in this case placed the public at far greater risk.
[31] In Williams, supra, Hill J. sentenced a young, Black, but not first-time offender to 4 years globally, indicating that it was not appropriate to send him to the penitentiary. Pre-trial custody credit brought his remaining sentence to 13 ½ months. I note that Mr. Williams had been the subject to a firearm prohibition from his prior convictions as a youth.
[32] In R. v. Fenton, 2017 ONSC 5945, the weapon involved was a sawed off shotgun. Again, Fenton had been the subject of a firearm prohibition. There were children living in Fenton’s house with the firearm. Schreck J. noted that cases involving sawed off shotguns resulted in lesser sentences than with semi-automatic handguns. Fenton received a three-year sentence before consideration of a Downes credit.
[33] There are some relevant similarities with R. v. Thavakularatnam, 2018 ONSC 2380. That offender was 20 years old. He had a loaded firearm in a public place, a mall in Toronto. However, he resisted arrest, and he faced immigration consequences. He also had, by the time of sentencing, prior convictions. A sentence of 40 months was imposed.
[34] There are also relevant similarities with R. v. Mahamet-Zene, 2018 ONSC 1050, where Akhtar J., found the appropriate sentence to be 42 months, less one month Downes’ credit. That case involved a loaded firearm in a public place, a youthful first-time offender with a favourable pre-sentence report.
[35] R. v. Mohiadin, 2020 ONSC 47, has many similarities with Mr. Palmer’s case. The offender in that case was 19 years old at the time of the offence and 21 years old at the time of sentencing. He left high school prior to completion. His parents separated when he was very young and he was estranged from his biological father. His house arrest period, like Mr. Palmer’s, was adhered to and resulted in a distancing from negative influences in his life. Mr. Mohiadin was apprehended carrying a loaded handgun in a public place and in a concealed manner. Mr. Mohiadin was also racialized (although it is not clear if he is Black) and from an economically challenged neighbourhood. A sentence of 38 months was imposed. However, this was subsequently reversed on appeal because the judge misapprehended the Crown’s position on sentencing. The ultimate sentence was reduced to 36 months less credits.
[36] In R. v. Ansah, 2021 ONSC 6339, Baltman J. had before her a Black, 21-year-old first time offender. The offender, in addition to possessing a loaded firearm, had 85 grams of fentanyl for the purpose of trafficking. In respect of the possession of a loaded firearm offence, she imposed a 3-year sentence, subsequently reduced by the totality principle.
[37] In R. v. Williams, 2022 ONCJ 57, West J. imposed a 30-month sentence upon a youthful first time Black offender. His father had not been involved in his life. His mother worked two jobs to support the family. Mr. Williams had completed his grade 12 while on bail. He had brought the loaded handgun into a busy restaurant.
[38] Another case submitted by the Crown that resonates with the Court is R. v. Lewis, 2022 ONCJ 29. Again, Mr. Lewis was a very youthful first-time offender. There was a guilty plea. He had experienced anti-Black racism and it was safety concerns associated to violence in the area in which he lived that contributed to his possession of a firearm. An 18-month sentence was imposed, after taking into account harsh pre-trial custody conditions. There was no discussion in that case of a conditional sentence.
[39] It is clear that conditional sentences can and have been imposed in firearm offence cases. In R. v. Morris, the Court of Appeal held that if a sentence is imposed at or below two years, conditional sentences “can ameliorate the longstanding problem of the over-incarceration of young Black men”. The Court imposed a conditional sentence in that case of two years less a day, followed by probation. I note that Mr. Morris was the same age as Mr. Palmer at the time of the offence and sentencing and did not have a criminal record.
[40] For examples of cases in which conditional sentences were imposed, I have considered Copeland J.’s (as she then was) decision in R. v. Stewart, 2022 ONSC 6997 that contains many factual similarities with the case before me. Again, the offender was a young first-time offender, Black and had strong familial support. Justice Copeland stated as follows, at para. 74:
[74] The range of sentence for a first offence of firearm possession offences is sometimes stated as three to five years. However, stating the range in this manner excludes an established range of sentences as low as upper reformatory (including conditional sentences) for young first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking. In general sentences above three years involve some other criminality, such as drug trafficking, connected to the firearm possession (citations omitted by me).
[41] Copeland J. determined that there was not evidence of other criminality, such as drug trafficking, and found that the appropriate range of sentence for Mr. Stewart was in the range of just below or at the two-year mark. She then considered whether a conditional sentence was appropriate and held that it was in that case.
[42] In R. v. Desmond-Robinson, 2022 ONCA 369, the offender was convicted of possession of a sawed-off rifle and possession of cocaine and marihuana. The Court of Appeal reinforced that a conditional sentence is available in cases involving firearms and imposed a conditional sentence of two years less a day to be followed by probation for two years. In doing so, the Court made it clear that despite the seriousness of gun offences, where the appropriate sentence is under two years imprisonment, a conditional sentence is not precluded.
[43] Defence counsel provided me with further cases where conditional sentences were imposed. These include:
[44] The common feature of these three cases are the exceptional efforts at rehabilitation and community service that each of the offenders made prior to sentencing. For example, Mr. Hassan’s pre-sentence report included the description that “the subject started a journey that has culminated in one of the most complete achievements the writer has witnessed in recent years.” The sentencing judge stated:
[64] In my experience as a judge of this Court I have never seen such a dramatic and sustained effort not only of personal rehabilitation but also of a commitment to helping youths who grew up in the kind of community Mr. Hassan grew up to escape the strong pull of a life of gangs and crime.
[45] Although I am pleased and encouraged by Mr. Palmer obtaining his GED while on bail awaiting trial, respectfully, I cannot place his efforts or achievements into the same category as Collins, Hassan or Sellars. To do so would unfairly diminish the efforts of those individuals to completely reform themselves while on bail.
[46] Finally, in R. v. Beharry, 2022 ONSC 4370, Schreck J. imposed a conditional sentence upon a similarly situated offender. Mr. Beharry had a loaded handgun in his car, found while the police conducted a search for cannabis. He possessed the gun for his own protection. He was 32 years old, but had no prior criminal record. He was Black and grew up in relative poverty, raised by his mother as his father was largely absent from his life.
[47] In summary, I am satisfied that the Crown has fairly and accurately identified the appropriate sentence range where a person carries a loaded firearm in a public place--in the range of three to five years. First time offenders fall within the low end of that range. However, in rare circumstances, an upper reformatory sentence may be appropriate. This typically represents cases where the firearm is not possessed in connection with other criminal activity. An upper reformatory sentence can lead to the more exceptional imposition of a conditional sentence.
Aggravating and Mitigating Factors
[48] As noted, there is no doubt that these were serious offences. I note the presence of 15 grams of cocaine upon Mr. Palmer’s person at the time he was searched. While that is a significant quantity of cocaine, I am not prepared to infer that he was trafficking narcotics. It is, however, a significant aggravating factor given the toxic combination of drugs and loaded guns.
[49] I also find that it is an aggravating circumstance that Mr. Palmer was armed with a loaded handgun while in a vehicle that had arrived from Windsor, and while marijuana was being consumed within the vehicle. Although marijuana is legal, it is illegal to consume it in a motor vehicle. Furthermore, the gun in this case was quite small, and therefore easy to conceal and transport. Fortunately, Mr. Palmer neither used nor brandished the weapon. He was fairly cooperative with the police and did not flee or try to dispose of the firearm.
[50] Most importantly, despite the grave consequences that can accompany loaded firearms, no one was injured in this particular case. Without a doubt, firearm offences are “harmful” and firearms pose a real and immediate danger to the public. Here, fortunately, there was no actual harm caused by Mr. Palmer.
[51] Mr. Palmer did not plead guilty but was entitled to contest the Crown’s ability to prove his guilt beyond a reasonable doubt. His decision to do so is clearly not an aggravating factor. The Charter application was certainly not frivolous, as I found a violation of s. 9. I note that the Charter application which was denied was determinative of the trial, on Mr. Palmer’s agreement. It was conducted efficiently. I consider all of this to be a neutral factor. He does not have the benefit of a guilty plea though.
[52] From a mitigating standpoint, Mr. Palmer is a relatively young, first-time offender. He has no criminal record. He has made some effort at rehabilitation during his pre-trial judicial interim release by obtaining his high school diploma. He clearly has rehabilitative potential. He expressed remorse and accepted responsibility in his comments to the court, and I accept, that he is motivated to improve his life’s trajectory.
[53] Critically important, during his substantial period of pre-trial and pre-sentencing release, over 1150 days, Mr. Palmer has been entirely compliant with the terms of his bail.
[54] While Mr. Palmer did obtain his grade 12 equivalency during his pre-trial release, his efforts at employment were limited. In my view the terms of his judicial interim release would have permitted employment. There is some explanation for his lack of employment because of his concerns for his safety within his community which resulted in him choosing to stay inside his surety’s home most of the time.
[55] In considering the person before me, I cannot ignore that Mr. Palmer was accused of a very serious offence, for which he awaited trial for 33 months in custody. Presumably, the authorities had some reason for believing that he was involved. However, when another person pled guilty to the offence, Mr. Palmer was entitled to have the charges against him withdrawn. He is entitled to the presumption of innocence certainly in relation to that accusation.
[56] The end result of that episode is that Mr. Palmer spent nearly three years in pre-trial custody as a result of those charges, from the time that he was 19 years old, and was ultimately determined to be not guilty of that offence. The significant impact on Mr. Palmer’s life cannot be overlooked. Since becoming an adult, Mr. Palmer has spent nearly three years in jail and a further three years under house arrest. I accept that this is an important contextual element to Mr. Palmer’s case that is not present in any of the cases cited by either counsel. It is a distinguishing aspect of this case from all other cases referred to.
[57] Mr. Palmer has never, as a young adult, had an opportunity to be a productive member of society. As his counsel expressed it during submissions, Mr. Palmer has been “stuck” since age 19 in the criminal justice system.
[58] I would not classify these circumstances as necessarily mitigating. However, it is a critical part of the context that brought Mr. Palmer before the court on the charges before me. Indeed, he attributes the accusations against him as the rationale for needing to carry protection.
[59] I do not ignore that shortly after his release, Mr. Palmer committed the offences for which I am now rendering sentence. That fact implies, in part, that Mr. Palmer failed to learn from his previous incarceration and failed to follow a better path.
[60] I am also cognizant that such “self-defence” arguments have been rejected. In R. v. J.G., [2005] O.J. No. 4599, Nordheimer J. (as he then was) rejected the carrying of a loaded firearm as self-defence as a mitigating circumstance, “clearly and absolutely”.
[61] While I accept Mr. Palmer’s explanation for carrying the loaded firearm, I do not accept Mr. Palmer’s justification for carrying a loaded firearm. He made a choice to obtain and load that firearm. He made a choice to bring it with him to London from Windsor. He is not morally blameless.
[62] Importantly, I must consider Mr. Palmer’s social context. He grew up in a broken home, without any male role model. He was effectively the “man of the house” by age five. His mother struggled economically. They lived in a poor neighbourhood in Windsor. I accept that this social context made negative associations more attractive to Mr. Palmer growing up. He struggled with school and was ultimately expelled. Regardless of Mr. Palmer’s race, this social context is a mitigating factor that should be factored into the equation.
[63] I also consider that Mr. Palmer appears to have strong family support. His grandmother, as his surety, appears to have fulfilled that role admirably. It is clear from the pre-sentence report that both his mother and grandmother are supportive, as well as his young nephew. I note that Mr. Palmer professed a commitment to ensuring that he becomes a positive role model for his nephew, who, like Mr. Palmer, has few male role models in his life.
[64] Finally, I reiterate that Mr. Palmer took the opportunity to address the court at length. I found his comments to be poignant and to acknowledge and take responsibility for his actions.
Social Context and Anti-Black Racism
[65] I take this opportunity to address how systemic anti-Black racism factors into this case. The insidiousness of anti-Black racism was recognized fully by the Court of Appeal in R. v. Morris, at para. 1. In the Court’s words, anti-Black racism must be acknowledged, confronted, mitigated and ultimately erased.
[66] Given the inability to obtain a Morris report in a timely fashion, I permitted counsel to make submissions on Mr. Palmer’s experiences growing up.
[67] I must be careful not to lose sight of the seriousness of the offence. Mr. Palmer’s experience with anti-Black racism does not diminish the seriousness or gravity of the offences here.
[68] Furthermore, Morris expressly does not call for a discount on account of race. As a Black man myself, I would never be entitled to consideration under the principles espoused in Morris. I did not grow up in a socio-economically disadvantaged environment. I was not fearful of police interaction. However, in the case of Black men in Mr. Palmer’s shoes, anti-Black racism has a disproportionate impact on them. Mr. Palmer grew up economically disadvantaged and with few educational and employment opportunities. I also take judicial notice that he would have grown up in a community more likely to have had negative interactions with the police. This leads to distrust of the authorities.
[69] Furthermore, a point to which I can relate, Mr. Palmer felt somewhat left out of his own community, as a “light skinned Black person”. He therefore felt ostracized by both the white and black community in which he lived. In the absence of strong supports, this can be extremely isolating for a young person.
[70] Mr. Palmer’s neighbourhood was described by his counsel as “very rough”. There were a lot of drugs, property crime and violence. Few people in his neighbourhood were considered “successful” and his counsel argued that Mr. Palmer would have little reason growing up to believe that it was possible to succeed.
[71] It was described that when his mother finally obtained housing, the residence was a former “trap house” so that people would attend looking for the former tenant and drugs. At the age of 14, Mr. Palmer had to protect himself and his family from this element.
[72] Mr. Palmer would have police interactions for no apparent reason, which led him to have a very deep-rooted distrust of the police. He never felt like they were trying to protect him.
[73] In Mr. Palmer’s situation, this was subsequently exacerbated by his lengthy incarceration, without trial, in relation to an offense in which the charges were ultimately withdrawn. Mr. Palmer has spent most of his adult life incarcerated or under house arrest. This undoubtedly has contributed to his perception that his community is a threatening and unsafe place. It undoubtedly has caused him to have a loss of confidence in the administration of justice, the Court system and the police. Furthermore, it was his perception that his safety was at risk in the community because there was belief that he had still been involved in the offence for which the charges were dismissed.
[74] I find that Mr. Palmer’s moral responsibility is reduced on the basis of the social context in which he grew up, which includes systemic anti-Black racism. I find that there was the necessary connection between the anti-Black racism and the offences in question.
Reduction for Breach of Charter rights
[75] In my Reasons on the Charter application brought by Mr. Palmer, I found that the police had violated his s. 9 right to be free of arbitrary detention. I found that the manner in which the officers parked the police SUV posed a psychological detention upon the occupants of the vehicle in which Mr. Palmer was located. Nonetheless, I felt that the breach was not particularly serious, more at the technical end of the spectrum.
[76] In R. v. Nasogauluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court of Canada approved of judges taking into account state misconduct, including Charter breaches in appropriate cases, when fashioning fit and proper sentences.
[77] While I acknowledge the authority to make such a reduction, it is my view that there is no evidentiary basis for doing so in this case. The state misconduct does not warrant that reduction.
The Appropriate Sentence
[78] I turn now to the appropriate sentence for Mr. Palmer, taking into account the gravity of the offences, the aggravating and mitigating circumstances and Mr. Palmer’s personal circumstances and the social context in which he found himself.
[79] This is the hardest part of the analysis.
[80] The majority of cases referred to above would suggest that the appropriate sentence is three years less credits for time served and/or stringent bail conditions. Cases where sentences have been imposed below two years are rare and present exceptional circumstances.
[81] Without losing sight of the seriousness of firearm offences, I am persuaded that Mr. Palmer does present with unique circumstances not found in most cases. He is clearly not Mr. Hassan, Mr. Collins or Mr. Sellars. He has not engaged in exceptional rehabilitative efforts while awaiting sentencing. However, Mr. Palmer has been facing criminal prosecution since the time he turned 19 years of age. He was incarcerated for nearly three years awaiting trial and was ultimately exonerated of that crime by another person’s guilty plea. He has been compliant on house arrest for a further 1150 days (approximately) since his arrest for the offences before me.
[82] Mr. Palmer is entitled to be treated as a first-time offender. He has experienced socio-economic disadvantages, and I find, anti-Black systemic racism that is connected in some measure to the offences he was convicted of.
[83] I am given significant pause by the presence of cocaine at the scene. While I am not prepared to find that Mr. Palmer was involved in drug trafficking, the combination of drugs and guns in this case is the most significant hurdle that Mr. Palmer faces with respect to avoiding the sentence sought by the Crown. I have no other indicia, except perhaps the gun and where the vehicle Mr. Palmer was sitting in was located, to conclude that Mr. Palmer was trafficking drugs. I cannot say either way and those charges were not pursued.
[84] Ultimately, it is my belief that if I impose a penitentiary sentence upon Mr. Palmer, he will be as likely to re-offend than to be rehabilitated. His downward trajectory will continue. On the other hand, if I give Mr. Palmer the benefit of the doubt, there is a prospect that he will be able to get his life in order and break the vicious cycle in which he finds himself. I am prepared to grant Mr. Palmer a chance to make a positive contribution in whatever way he can.
[85] In the rather unique circumstances of this case, I find that a fit and proper sentence is two years less a day. The only remaining issue is whether a conditional sentence is appropriate.
Conditional Sentences
[86] There are two pre-requisites to a conditional sentence, as set out in s. 742.1(a) of the Code. The first is that serving the sentence in the community must not endanger the safety of the public.
[87] I begin by acknowledging the very fact that Mr. Palmer had a loaded gun in public on the occasion of this offence endangered the safety of the public. If a conditional sentence were to be imposed, I would be necessarily trusting that Mr. Palmer has put such behaviour in his rearview mirror.
[88] Importantly, Mr. Palmer has no prior criminal record. He must be presumed innocent of the offence for which another person pled guilty. He has been on bail since April of 2021 without any indication that he has failed to abide by all of the conditions of his recognizance. I was impressed by his comments in court about his wish to move onward with his life. I was impressed by his stated desire to raise his nephew.
[89] The other consideration is whether a conditional sentence is consistent with the fundamental purposes of sentencing. In R. v. Proulx, 2000 SCC 5 Lamer C.J.C. described that conditional sentences recognize that too many people are being sent to prison in Canada. It was described that conditional sentences include both punitive and rehabilitative aspects. Furthermore, Chief Justice Lamer described that a conditional sentence can provide significant denunciation and deterrence. He also noted that a conditional sentence will be better than incarceration at achieving rehabilitation, reparations to the victim and promotion of a sense of responsibility in the offender.
[90] As described earlier, in Morris, it was acknowledged that conditional sentences can be crafted to ameliorate the over-representation of young Black men in Canadian penitentiaries, provided that the goals of deterrence and denunciation are still met.
[91] It bears repeating that firearm offences require significant denunciation and deterrence. The key in this case is fashioning significantly punitive conditions upon Mr. Palmer’s liberty within the community to meet those considerations.
[92] This is a case in which I believe that Mr. Palmer is adequately specifically deterred from further involvement with the criminal law by the imposition of a conditional sentence with a real punitive bite. He has been on bail for over 1150 days. In terms of general deterrence, it is my view that very few offenders will be able to establish the unique feature of this case—Mr. Palmer’s lengthy term of pre-trial incarceration without a finding of guilt. This is not a precedent setting case and most offenders will face harsher consequences than Mr. Palmer should they commit a similar offence as they will not have his same background to rely upon.
[93] In the end, I am persuaded that the interests of society are still met with a conditional sentence in this case. The community is not well served with over-incarceration of young men, Black or otherwise, if they are able to remain compliant with strict conditions such that they can pursue rehabilitation. The community is better served if Mr. Palmer uses this opportunity to turn the corner and to prevent his nephew from making the same mistakes he made. The community is better served with the rehabilitation of young men such as Mr. Palmer. Mr. Palmer needs to move past this case, find stable employment and focus on moving forward. I am prepared to give him that opportunity.
Credits
[94] Mr. Palmer was arrested on March 7, 2021 and was in custody until April 16, 2021. The parties agree that Mr. Palmer was therefore in custody for 40 days and is entitled to a Summers credit of 60 days.
[95] The remainder of the time since April 16, 2021 until awaiting the imposition of this sentence, Mr. Palmer has been on bail. As of the date of sentencing submissions, this was approximately 1148 consecutive days.
[96] The relevance of bail conditions in determining sentence was discussed in R. v. Downes, 2006 ONCA 3957, [2006] O.J. No 555. Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are inconsistent with the presumption of innocence.
[97] The Downes credit is not strictly a “credit” like the Summers credit. It is not arrived at by mathematical precision. The amount of credit is a matter of judicial discretion and factors such as the amount of time spent on stringent bail conditions, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry on normal relationships, employment and day to day activities are considered (see: R. v. Place, 2020 ONCA 546, at para. 20).
[98] The focus of the Downes credit is the impact of the conditions on the offender. Were the bail conditions punitive enough to be akin to punishment, thereby warranting mitigation (see: R. v. Schlaepfer, 2022 ONCA 566)?
[99] In this particular case, there was substantial delay caused by the inability to obtain funding to requisition a Morris report. I do not blame Mr. Palmer for that delay. That appears to be a current systemic issue besetting the criminal justice system. I do not consider any delay to be a factor in assessing the appropriateness of a Downes credit in this case.
[100] However, in this case, I have difficulty finding that the bail conditions upon Mr. Palmer were particularly onerous. He was not under strict house arrest. He could leave his grandmother’s house, unaccompanied by a surety. He was to remain in the house between 10:00 pm and 6:00 am. I accept that he chose not to leave the house much because he feared for his own safety. The pre-sentence report describes some employment. He was able to obtain his GED. He was prohibited from driving to London or consuming drugs. Those are not onerous terms.
[101] Thus, while I accept that Mr. Palmer had a substantially reduced lifestyle, and that this had a disheartening effect on him, I am not prepared to apply a Downes credit. I am simply not satisfied that the terms of the bail have been shown to be “stringent”.
[102] However, even if the bail conditions had a significant enough impact upon Mr. Palmer, I would still decline to grant a Downes credit.
[103] I am being asked to impose a conditional sentence for an offence in which the low end of the range is typically three years of penitentiary time. I am satisfied that pursuant to the rationale in R. v. Fice, 2005 SCC 32, credits to which an accused is entitled cannot be used to bring what would otherwise be a penitentiary sentence below two years to permit the court to impose a conditional sentence. I also thank the Crown for providing me with R. v. Irvine, 2008 MBCA 34, which stands for the same proposition as Fice but specifically in relation to a Downes credit.
[104] Having been persuaded that the fit and proper sentence in this case is two years less a day, I am not prepared to further reduce this sentence on account of a Downes credit. In my view, the resultant sentence would no longer be fit and proper. In other words, Mr. Palmer is the beneficiary of significant judicial discretion in finding that a reformatory sentence is appropriate in his unique circumstances. I would not exercise my discretion to lower that sentence any further.
[105] I do accept that the Summers’ credit must be applied against the two years less a day sentence.
Imposing Sentence
[106] Mr. Palmer, I need you to appreciate that this was a very difficult decision for me to make. The Crown’s position on sentencing was entirely reasonable, was consistent with case law and was attractive to me in many respects.
[107] I need you to understand that I accept that you dealt with adversity far beyond the norm in your young life. Much of that adversity is not your fault and is not your making. However, you are responsible for your actions in this case. You had no justification for bringing a loaded gun with you to our community. Loaded guns are not welcome here.
[108] You are not being forgiven by me. I am exercising my discretion to grant you an opportunity to pull your life together, as you asked me to do. I have granted other offenders similar latitude so you are not receiving special treatment. But I have been burned before. Do not make me regret my decision by breaching any of the conditions that I am going to impose upon you. If you do, I will ensure that you serve out the remainder of your sentence in custody. I have done so before.
[109] Please stand.
[110] Mr. Palmer, I sentence you to a conditional sentence of two years less a day concurrent on both counts. From this sentence, you are entitled to a deduction of 60 days for a total conditional sentence of 669 days.
[111] I impose the following conditions upon you: (a) For the first 330 days of the sentence, you are to remain within your residence, which includes any yard or balcony, at all times, subject to the following exceptions: (i) for the purpose of employment; (ii) attendance at an educational institution at which you are registered; (iii) to attend any scheduled appointment for yourself, your mother, your grandmother, grandfather or your nephew with a regulated health professional; (iv) to comply with any terms of this order or direction of your Supervisor; (v) for medical emergencies involving yourself or members of your immediate family, which includes your mother, grandmother, grandfather, sister or nephew; (vi) to attend religious services; (vii) once per week at a time to be specified by your Supervisor for a period of four hours for the necessities of life; (viii) with the express written permission of your Supervisor. (b) For the remaining part of your sentence (339 days), you are to be subject to a curfew between 10:00 pm and 6:00 am each day, subject to the same exceptions as above; (c) Throughout the period of your sentence, you are to keep the peace and be of good behaviour; (d) You shall be required to appear before the court when required to do so by the court; (e) You are required to report to a Supervisor within four working days of today’s date. Arrangements shall be made to have you meet a Supervisor in Windsor so that you do not have to travel to London to do so. Thereafter, you shall meet with your Supervisor when required by the Supervisor and in the manner directed by the Supervisor. (f) You are not to possess any firearms or weapons as defined by the Criminal Code; (g) You are not to possess any unlawful drugs or substances unless you have a valid prescription in your own name; (g) You are to attend such counselling as directed by your Supervisor and sign any releases as are necessary to monitor compliance with this condition; (h) You are to make reasonable efforts to seek and maintain suitable employment or education and provide proof of these efforts as required by your Supervisor; (h) You are to perform 100 hours of community service within the first 18 months of the sentence, as approved by your Supervisor.
[112] You are to be fitted with an electronic monitoring device to be worn at all times during your conditional sentence. Arrangements to have this set up through the Windsor office should be made so that you do not have to return to London. You are to follow all of the conditions for the electronic monitoring. Should an issue arise with the suitability for electronic monitoring, counsel may contact me through the trial coordinator.
[113] With the permission of your Supervisor, obtained in advance, you may relocate from Windsor so long as you provide a fixed address to the Supervisor. The same conditions as above will be imposed on any new residence. You are not to move from Ontario. You are not to travel from Ontario without the express written permission of your Supervisor or the Court, obtained in advance. You are to notify your Supervisor or the Court of any change of name, or of any change of employment.
[114] Mr. Palmer, it is important for you to understand each of these conditions. Do you?
[115] Mr. Palmer, it is also important for you to understand that should you violate any of these conditions, a hearing may be conducted and you may be ordered to complete the remainder of your sentence in custody. Do you understand?
[116] Mr. Palmer, should you wish to apply to vary any of the optional conditions you may do so through your Supervisor. Your Supervisor may also of his or her own volition apply to vary the optional conditions. Understand?
[117] Further, I impose upon you upon the completion of the conditional sentence, a two-year period of probation. The statutory terms shall apply to the two-year probation order. The additional terms are as follows: (a) you are to report to a probation officer within two working days of the commencement of the probation order, and thereafter, as directed by the probation officer; (b) you shall attend any counseling or treatment program as recommended by the probation officer and sign any necessary releases for same; (c) you shall not be in possession of any firearm or weapon as defined by the Criminal Code; (d) you shall not be in possession or consume any unlawful drugs or substances unless you have a valid prescription in your own name.
[118] The ancillary orders imposed are as follows: (1) The firearm and ammunition shall be forfeited to the Crown; (2) A secondary DNA order under s. 487.04(a); (3) A s. 109 weapons prohibition order that prohibits you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance during a period of 20 years. Mr. Palmer, do you understand that a breach of this order is a criminal offence such that you could be found guilty and sentenced to a further term of imprisonment?
[119] Counsel, are there any concerns with any of the conditions, including of probation, or the ancillary orders?
[120] Finally, Mr. Palmer, it is critically important that you understand that this sentence is not intended to allow you to play video games all day. Find suitable employment. Pursue further education. Do not squander this opportunity to better yourself. You told me that you were shamed and embarrassed by your situation. You told me that you knew the steps that you want to take, for yourself and your nephew. Do so. Become the man that you told me you want to be.
“Justice S. Nicholson” Justice Spencer Nicholson Date: August 2, 2024