Court File and Parties

COURT FILE NO.: CR-21-836 DATE: 2024-08-23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Jelena Vlacic, for the Crown

– and –

ALEXANDER BARREIRA Alison Craig, for the Accused

HEARD: February 7, 2024

REASONS FOR SENTENCE Stribopoulos J.

Introduction

[1] Following a trial, the court found Mr. Barreira not guilty of various offences but guilty of possessing a firearm without a license, possessing a restricted firearm together with readily accessible ammunition without a license or authorization to do so, and possessing cocaine for the purpose of trafficking. These are the court's reasons for sentencing Mr. Barreira for these offences.

Circumstances of the Offences

[2] On the afternoon of February 16, 2020, the police entered Mr. Barreira's mother's apartment, where he lived at the time, to execute a Feeney warrant. The warrant authorized the arrest of another man, who police located in the apartment and took into custody.

[3] During the execution of the Feeney warrant, the police observed suspected cocaine and other items associated with drug trafficking in plain view. Based on those observations, they obtained a search warrant for the apartment, which they executed early on the morning of February 17, 2020.

[4] In the living room area of the apartment, which Mr. Barreira occupied, the police located a grey travel bag on a table adjacent to a pull-out sofa where he slept. Inside that bag, they found an unloaded Girsan 9mm semi-automatic handgun and two magazines, both containing ammunition.

[5] The police located various other items in the living room. That included a white powdery substance that they suspected to be cocaine on a card sitting on the shelf of a shelving unit, which they seized. They observed a digital scale and Ziploc baggies on that same shelving unit. They found and seized cash totalling $665. Further, inside a safe, amongst other items, they found and seized a white powdery substance believed to be cocaine and a bag containing a cutting agent.

[6] By way of an Agreed Statement of Fact, the parties agreed that the Girsan 9mm semi-automatic handgun was a “restricted firearm” and that Mr. Barreira was not authorized or licensed to possess it. Further, the parties agreed that the police seized 16.50 grams of cocaine from the apartment, which had a street value of between $1,485 and $1,980.

[7] Finally, during his evidence at trial, Mr. Barreira admitted that he was dealing drugs before his arrest and that the drugs police found in his mother's apartment belonged to him. He explained that he started selling powder and crack cocaine after sustaining an injury while working as a roofer in late 2019 or early 2020.

Circumstances of the Offender

[8] Mr. Barreira is now 38 years old; he was 34 when he committed his offences. He is a Canadian citizen.

[9] Mr. Barreira is one of four siblings. His mother raised him; he has never had any relationship with his father. The closest thing he had to a father figure growing up was his older brother.

[10] Mr. Barreira spent his entire childhood in government-assisted housing. The family initially lived in the Regent Park section of Toronto before relocating to Brampton when Mr. Barreira was 12.

[11] Mr. Barreira dropped out of high school after grade 11. During his teenage years, he began engaging in criminal behaviour. Mr. Barreira has nine youth court convictions from when he was between 14 and 17 years old. His offending continued into his early adult years; between the ages of 18 and 23, he accumulated 16 further convictions for property offences, crimes of violence, breaching court orders, a weapons offence, and a drug offence.

[12] The last entry on Mr. Barreira's criminal record is from November 2008, when he would have been 23. However, during her submissions, Ms. Craig acknowledged that Mr. Barreira began dealing drugs in his mid-twenties.

[13] Over the years, Mr. Barreira has also earned his income through lawful employment. At times, he has been self-employed; he operated his own landscaping and painting business for a period and a car detailing business. These ventures, however, did not ultimately pan out. He has also been employed by others, mainly in the construction trade, including as a roofer.

[14] Since his release on bail in November 2020, Mr. Barreira has been unable to work. During his first year on bail, he was essentially under house arrest, and employment was not an option. Although the bail conditions were eventually relaxed, various restrictions that remained in place made it unfeasible for him to work. For example, the terms of his bail precluded him from entering Brampton.

[15] Mr. Barreira has four children and enjoys a close relationship with three of them. Additionally, he is in a new relationship, and his current partner is pregnant. Their baby is due later this year.

[16] Mr. Barreira has been coping with depression and anxiety for a long time and is taking medication to manage these conditions. His mental health worsened after his arrest and charges, leading him to turn to alcohol as a way of coping. Unfortunately, this resulted in him developing alcohol dependence for the first time in his life, and he has been struggling with it for several months. Mr. Barreira acknowledges his problem with alcohol abuse, and the court adjourned the imposition of sentence to allow him to complete a residential alcohol treatment program.

[17] Additionally, Mr. Barreira has serious health issues involving his heart, for which he takes medication. His abuse of alcohol has only worsened that condition.

[18] At the sentencing hearing, defence counsel filed letters from various members of Mr. Barreira’s immediate and extended family and a friend who has offered him employment. They attest to his generosity and good nature and describe him as a loving son, brother, cousin, and father. Further, some of the letter writers describe Mr. Barreira undergoing a transformation in the last few years, maturing, gaining insight and expressing remorse for his actions. It is clear from the letters that Mr. Barreira enjoys the love and support of his family.

The Positions of the Parties

[19] The parties agree on the ancillary orders that the court should issue as part of sentencing, including a DNA order, a lifetime weapons prohibition order under section 109 of the Criminal Code, R.S.C. 1985, c. C-46, and a forfeiture order for offence-related property.

[20] Additionally, the parties agree that Mr. Barreira is entitled to credit for his time spent in pre-trial detention from February 16, 2020, until November 27, 2020 (285 days). They agree that most of that time should be subject to enhanced credit because of lockdowns and because it largely overlapped with the onset of the pandemic when conditions within our pre-trial detention centres were especially harsh: see R. v. Duncan, 2016 ONCA 754; R. v. Bristol, 2021 ONCA 599, at paras. 10-12.

[21] Further, the parties agree that following his release on bail in late November 2020, Mr. Barreira was subject to bail terms that significantly constrained his liberty and that he should receive consideration in mitigation of his sentence for that: see R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), at para. 37.

[22] However, the parties disagree sharply on the carceral component of the sentence the court should impose.

[23] On behalf of the Crown, Ms. Vlacic submits that before any pre-sentence custody and Downes credit, the appropriate sentence for Mr. Barreira for his offences would be six years of imprisonment. In taking that position, Ms. Vlacic emphasized the preeminent sentencing objectives for firearms and commercial drug offences (denunciation and deterrence), the established sentencing ranges for such crimes, and noted the aggravating and mitigating factors. Ms. Vlacic submits that credit for pre-sentence custody and the mitigating effect of restrictive bail conditions should reduce the otherwise appropriate sentence by two years and that the global sentence going forward should be four years of imprisonment.

[24] In contrast, Ms. Craig submits that the court should impose a sentence of less than two years of imprisonment and permit Mr. Barreira to serve his sentence in the community. In taking that position, Ms. Craig disagrees that the range of sentences for Mr. Barreira's offences is as high as the Crown claims. Ms. Craig notes that Mr. Barreira's criminal record is now very dated. Further, she points out that Mr. Barreira has been on bail for over three years without incident and has a job offer he can take up if he is permitted to serve his sentence in the community. Finally, Ms. Craig emphasizes the progress Mr. Barreira has made since being arrested and charged, and argues that re-incarcerating him, at this point, is unjustified and would be counterproductive.

Law and Analysis

[25] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop and after accounting for the aggravating and mitigating factors, the judge must fashion a just and appropriate sentence.

Purpose, objectives, and principles of sentencing

[26] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing “to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code, s. 718, similarly, see Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(1).

[27] Achieving that purpose requires the court to impose “just sanctions” that reflect one or more traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).

[28] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.

[29] The principle of parity is an essential consideration in arriving at a proportionate sentence. That is because proportionality is a function of the circumstances of the offence and offender compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained: “Individualization and parity of sentences must be reconciled for a sentence to be proportionate”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). Consequently, “parity is an expression of proportionality”: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also paras. 30-33 more generally; see also R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.

[30] Mindful of the objectives and principles of sentencing, these reasons turn next to the Court of Appeal's specific guidance concerning sentencing for firearms and commercial drug offences.

Sentencing Ranges for the Offences

[31] As noted, the parties disagree on the appropriate sentencing ranges for Mr. Barreira's offences. Consequently, I will address the range of sentences for each offence.

[32] The gravity of gun crimes cannot be exaggerated. Guns intimidate, they maim, and they kill. They are implements of human destruction. That is why criminals seek to possess and use them. The cases recognize that unlawful firearms are a scourge in our community, and their possession must be discouraged through exemplary sentences that denounce and deter their possession and use, and thereby enhance public safety: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Mohiadin, 2021 ONCA 122, at para. 12.

[33] Further, as the Court of Appeal has recognized, “[d]enunciation and deterrence assume places of prominence in determining a fit sentence for crimes involving firearms, especially loaded semi-automatic firearms in the possession of drug traffickers”: R. v. Mohammed, 2017 ONCA 691, at para. 6.

[34] In Nur, in affirming the Ontario Court of Appeal's decision, the Supreme Court of Canada agreed with Justice Doherty that firearm offences fall along a spectrum, with regulatory infractions at one end and guns used for criminal purposes at the other. Cases falling near the “true crime” end of the spectrum warrant sentences of three years or more. Writing for the majority in Nur, Chief Justice McLachlin explained, at para. 82:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, “stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. ... [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public”: para. 51. At this end of the range — indeed for the vast majority of offences — a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years’ imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

[Underlining added]

[35] Since Nur courts have often imposed sentences approaching or at the maximum reformatory range (two years less a day) in cases involving first offenders who unlawfully possess a restricted firearm but have not otherwise engaged criminal activity: see R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Filian-Jiminez, 2014 ONCA 601 (18 months); R. v. Boussoulas, 2015 ONSC 1536, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44 (21 months); R. v. Shomonov, 2016 ONSC 4015 (21 months); R. v. Downey, 2017 ONCA 789 (two years less a day); R. v. Hassan, 2023 ONSC 5040 (two years less a day).

[36] In such cases, where exceptional circumstances were also present, sentencing judges have even imposed conditional sentences. For example, they have done so in cases where Morris factors mitigated an offender’s degree of responsibility and/or where the offenders had already made considerable strides toward rehabilitation: see R. v. Moses, 2022 ONSC 332 (conditional sentence of two years less a day); R. v. Stewart, 2022 ONSC 6997 (same); R. v. Beharry, 2022 ONSC 4370, at paras. 30-31 (same); R. v. Ramos, 2023 ONSC 1094 (same); R. v. Marier, 2023 ONSC 5194 (same); R. v. Stewart, 2024 ONSC 281 (same); R. v. Roy, [2023] O.J. No. 4931 (S.C.J.) (18-month conditional sentence).

[37] In contrast, offenders with prior criminal records, even those who are youthful, tend to receive sentences of three years of imprisonment: see R. v. Bedward, 2016 ONSC 939 (three years); R. v. Jama, 2018 ONSC 1252 (same); R. v. Johnson, 2022 ONSC 2688 (same).

[38] Similarly, courts have imposed sentences ranging between two and four years of imprisonment where an offender’s firearm possession is associated with other criminal activity, like drug trafficking: see R. v. Wong, 2012 ONCA 767, at paras. 9-15 (three years); R. v. Marshall, 2015 ONCA 692 (42 months); R. v. Mansingh, 2017 ONCA 68 (43 months); R. v. Prosser, 2014 ONSC 6466 (30 months); R. v. Griffith, 2019 ONSC 358 (four years); R. v. Marfo, 2020 ONSC 5663 (two years).

[39] Finally, the sentences for section 95 recidivists who also breached firearms prohibition orders are much longer, ranging between four and nine years of imprisonment: see R. v. Morris, 2023 ONCA 816, at para. 87 (citing the relevant cases).

[40] On the facts in this case, I am satisfied that Mr. Barreira’s firearms offences fall within the two-to-four-year sentencing range. After all, when he committed his firearms offences, Mr. Barreira was actively involved in the drug trade. I am satisfied beyond any reasonable doubt that he possessed the firearm as a tool of that trade, likely for his protection in an inherently dangerous industry in which he chose to participate.

[41] Concerning Mr. Barreira’s offence of possessing 15.50 grams of cocaine for the purpose of trafficking, the applicable sentencing range is also well-established. The Court of Appeal has recognized that the sentencing range for offenders who traffic or possess for the purpose of trafficking smaller amounts of cocaine is between six months and two years less a day of imprisonment: see R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 15 (6.3 grams – 15 months); R. v. Butters, 2017 ONCA 973, at para. 6 (0.20 grams – six months); R. v. Ahmed, 2016 ONCA 831, at para. 4 (28 grams – two years); R. v. Speziale, 2011 ONCA 580, 107 O.R. (3d) 447, at paras. 22-24.

Aggravating and Mitigating Circumstances

[42] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to evaluating the offence’s gravity and the offender’s degree of responsibility in its commission. They serve to push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Nasogaluak, at para. 43.

[43] Two aggravating factors in this case speak to the gravity of Mr. Barreira’s offences and his degree of responsibility in their commission.

[44] First, Mr. Barreira has a criminal record. Although it is now relatively dated, with the last entry from 2008, it remains relevant given its extent and because it includes entries for related offences. As such, it is deserving of consideration as an aggravating factor.

[45] Second, by his admission, Mr. Barreira was engaged in the drug trade for an extended period. Additionally, it was not an enterprise that he engaged in on his own; he had other people who sold drugs on his behalf, for example, his co-accused, Mr. Gilpin. According to Mr. Barreira’s evidence, his motive for doing so was profit, and it was highly profitable. All of that is extremely aggravating.

[46] At the same time, there are a few significant mitigating factors.

[47] First, Mr. Barreira enjoys the love and support of his immediate and extended family, and he appears to be an attentive and engaged father to his children. All that suggests there is still some hope for his eventual rehabilitation.

[48] Second, I am satisfied that Mr. Barreira is remorseful for his crimes. At least one of the letter writers noted Mr. Barreira’s remorse for his wrongdoing. In his comments to the court, Mr. Barreira took responsibility for his actions and expressed what I took to be a sincere desire to stay out of trouble in future.

[49] Finally, Mr. Barreira has spent over three years on bail under strict conditions. For the first year, he was essentially under house arrest. Even after that, his bail conditions continued to significantly constrain his liberty. Although there is no set formula for the credit that strict bail deserves, it requires consideration as a mitigating factor: see Downes, at para. 37.

The Appropriate Sentence

[50] After considering the purpose, principles, and objectives of sentencing, mindful of the applicable sentencing ranges and the aggravating and mitigating factors in this case, if I were sentencing Mr. Barreira for his offences separately, I would have imposed a three-and-a-half-year concurrent sentence for the firearms offences, and a sentence of two years less a day for his drug offence. That would represent a sentence of five and a half years of imprisonment. However, mindful of the totality principle, I ultimately would have imposed a global sentence of five years of imprisonment.

[51] Mr. Barreira was in pre-sentence custody for 285 days, during which he experienced full lockdowns for 104 days and partial lockdowns for ten days. Much of this time coincided with the beginning of the pandemic, when conditions in pre-trial detention facilities were particularly difficult due to public health measures. Because of this, Mr. Barreira is entitled to enhanced credit for the entire time he spent in pre-sentence custody, and I will credit him for 19 months toward his sentence as a result.

[52] The three years Mr. Barrera has spent subject to restrictive bail conditions also mitigate the sentence he would otherwise receive. Although there is no set formula for that, given the significant restraints on his liberty over that period, it should mitigate what would otherwise be the appropriate sentence by a further six months.

[53] As a result, a global sentence of 5 years imprisonment shall be noted. However, due to pre-sentence custody and Downes’ credit, I shall impose a global sentence today of 35 months of imprisonment, which I will apportion as follows:

[54] For the offences of possessing a firearm without a license and possessing a restricted firearm together with readily accessible ammunition (counts 3 and 4), the court sentences Mr. Barreira to 24 months of imprisonment, concurrent on both counts.

[55] For the offence of possessing cocaine for the purpose of trafficking (count 10), the court sentences Mr. Barreira to 11 months of imprisonment, consecutive to the sentences on counts 3 and 4.

[56] The following ancillary orders shall also issue: a DNA order and a lifetime weapons prohibition order under section 109 of the Criminal Code.

[57] The court imposes $600 in victim surcharges for the three indictable offences, and Mr. Barreira shall have five years to pay that amount.

[58] Finally, the court will issue a forfeiture order relating to any offence-related property.

Signed: “Justice J. Stribopoulos” Released: August 23, 2024