COURT FILE NO.: CR-23-0149-00 DATE: 2024-10-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING M. Haque, for the Crown

- and -

RICHARD GURHAN N. Decock, for the Accused Accused

HEARD: August 30, 2024, at Thunder Bay, Ontario Regional Senior Justice W. D. Newton

Reasons on Sentence

Overview

1For reasons delivered June 7, 2024, [1] I found Mr. Gurhan guilty of possession of cocaine for the purpose of trafficking, possession of Percocet, possession of proceeds of crime exceeding $5000, and possession of a loaded and prohibited or restricted firearm. Four other firearm-related offences were stayed pursuant to R. v. Kienapple. [2]

The Facts

Circumstances of the Offence

2On November 11, 2021, police executed CSDA search warrants at a private residence in Thunder Bay, and on a Hyundai motor vehicle.

3Mr. Gurhan and three other males were found in a room at that residence. Located in that room were a scale, cell phones, and cash totalling $8060. The keys to the Hyundai vehicle were found in Mr. Gurhan’s possession. He was observed operating the vehicle the day before. Found within the vehicle were 64.55 grams of cocaine, 240.68 grams of crack cocaine, and a loaded 9 mm handgun. The estimated street value of the drugs was between $29,000 to $54,500.

Circumstances of the Offender

4Mr. Gurhan is 24 years old. He has no prior criminal record.

5Letters of support were received from Mr. Gurhan’s mother, brother, three sisters, cousin, and three friends. These family members and friends describe Mr. Gurhan in the following manner:

• “a kind, thoughtful and responsible person”;
• “filled with dedication to both his education and his family”;
• “Richard’s selflessness and dedication shine through in everything he does”;
• “has always been someone who puts others first”;
• “caring, selfless individual, especially when it comes to his family”;
• “truly cared about those around him”;
• “kind, patient , and selfless individual”; and
• “compassionate, determined”.

6They describe this conviction as out of character for Mr. Gurhan, stating the following:

• “this does not represent the person I’ve known him to be”;
• “the situation we’re facing now feels distant from the Richard I know”;
• “do not accurately reflect the kind of person he is”;
• “not a true reflection of who he is”;
• “does not reflect his true character”;
• “deeply values responsibility and doing what is right”; and
• “has contributed positively to society in the past”.

7His older brother reported that Mr. Gurhan does college course work via ZOOM from 8 a.m. to noon before caring for his aging grandmother. He then works as a delivery driver for his mother’s business from 2 p.m. to 9 p.m. The family spoke of the care Mr. Gurhan provides to his grandmother, who resides with them. Mr. Gurhan’s mother indicated that she wouldn’t know how to manage everything if it weren’t for his help.

8Mr. Gurhan has also been enrolled in a medical office administer college program since September 2023, and is scheduled to complete the program December 2024. He has maintained an 82 percent average.

9The pre-sentence report noted that, despite his parents separating when Mr. Gurhan was six years old, Mr. Gurhan has retained a close relationship with his father, who continues to play a significant role in his life. His home life was described in the report as stable and supportive, with no abuse or substance abuse issues.

10Mr. Gurhan attended school and received good grades. He has never been suspended or expelled.

11Mr. Gurhan advised the report writer that he has never consumed alcohol, cannabis, or illicit drugs.

12His mother reported that she did not know how Mr. Gurhan became involved in the current offences and was “shocked and disappointed in him”.

13Mr. Gurhan was compliant with police when arrested and has abided by his release conditions.

Impact on the Victim and/or Community

14As the Crown noted in its written submissions, drug trafficking and firearms cases involve numerous victims and pose a significant danger to the public. In support of its position, the Crown relied upon the following passage from R. v. Parranto: [3]

[87] The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada. Over the past few decades, however, society’s awareness of the true gravity of trafficking in such drugs has grown to the point that we are reminded, on a daily basis, of the death, destruction, and havoc it causes in communities across Canada.

[88] Trafficking in such substances causes both direct and indirect harms to society. Directly, the distribution and abuse of hard drugs leads to addiction, debilitating adverse health effects, and, all too frequently, death by overdose. As Lamer J. (as he then was) astutely observed, where addiction and death occur — as they so often do — those who oversee the distribution of these drugs are personally “responsible for the gradual but inexorable degeneration of many of their fellow human beings” (R. v. Smith, 1987 64 (SCC) , [1987] 1 S.C.R. 1045, at p. 1053).

[89] Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC) , [1998] 1 S.C.R. 982, at paras. 85‑87 , per Cory J., dissenting, but not on this point; R. v. Kang‑Brown, 2008 SCC 18 , [2008] 1 S.C.R. 456, at para. 184 , per Deschamps J., dissenting, but not on this point). Given that much of this criminal activity is violent, trafficking has come to be understood as an offence of violence, even beyond the ruinous consequences it has for those who abuse drugs and in the process, destroy themselves and others. Indeed, as Doherty J.A. has explained, violence is such a predictable consequence of the illicit drug trade that it cannot be dissociated from it:

Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. [Emphasis in original.]

15In this case, a loaded 9 mm handgun was hidden in the car operated by Mr. Gurhan. The purpose of a loaded handgun is to kill or cause serious injury. This represents a serious danger to the public, the police, and Mr. Gurhan.

Positions of Crown and Defence

The Crown

16The Crown seeks a five-year penitentiary sentence, less pre-sentence custody. The Crown noted in its submissions the increased prevalence of drug trafficking and firearms cases in Thunder Bay. With respect to sentencing for cases involving firearms, the Crown relied upon cases such as R. v. Nur, [4] and R. v. Mohiadin. [5] The Crown submits that Mr. Gurhan’s actions fall within the “true crime” range.

17The Crown also relied upon two recent drug trafficking/firearm related cases in Thunder Bay: R. v. Samuel-Maragh, [6] and R. v. Puentes-Reed & Yousuf. [7] Both cases highlight the significant number of drug trafficking/firearm crimes occurring in this city.

18The Crown acknowledges that Mr. Gurhan was under strict bail conditions for 28 months and proposes a Downes credit of five months.

Counsel for Mr. Gurhan

19Counsel for Mr. Gurhan submits that a global sentence in the range of three- and one-half to four years imprisonment, less credit for restrictive bail conditions of eight months, is appropriate. Counsel notes the Mr. Gurhan is a youthful, first-time offender. He is 24 years old now and was 21 years old when arrested. Counsel submits that Mr. Gurhan has strong prospects for rehabilitation, given his pre-conviction life and his behavior since his arrest.

20Relying upon cases such as R. v. Priest, [8] R. v. Borde, [9] R. v. Prosser, [10] and R. v. Mark, [11] counsel for Mr. Gurhan submits that rehabilitation is an important sentencing consideration even in cases involving drugs and guns, especially for young, first-time offenders.

21Counsel notes that Mr. Gurhan was under “house arrest” for 865 days and then subject to a curfew for 156 days. He seeks a Downes credit of eight months.

Case Law

The Crown

22In Mohiadin, with respect to sentencing for firearm offences, the Ontario Court of Appeal stated the following:

[12] In sentencing afresh, we begin by reiterating the observations of Doherty J.A. in R. v. Nur, 2013 ONCA 677 , at para. 206 , aff’d 2015 SCC 15 , [2015] 1 S.C.R. 773, that “[i]ndividuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.” In Nur , both this court and the Supreme Court of Canada declined to interfere with a 40-month sentence imposed on a 19-year-old first-time offender who tried to flee the police, was chased, and threw his loaded handgun under a parked car. McLachlin C.J. underscored, at para. 120, that “[i]t remains appropriate for judges to continue to impose weighty sentences” in appropriate circumstances.

23In Puentes-Reed, my colleague, Fitzpatrick J., said this about the prevalence and impact of drug trafficking/firearm offences in Thunder Bay:

[16] In this case I am acutely aware of the scourge that the active, violent, lucrative and apparently unending drug trade is having on the community of Thunder Bay and the Northwest Region. Persons are attracted to the apparent fast and easy money of preying upon a desperate cycle of poverty and addiction. The effects of this are real.

24Shortly after the Puentes-Reed decision was released, a judge of the Ontario Court of Justice in Thunder Bay, Scaramuzza J., made similar observations in Samuel-Maragh:

[75] There appears to be a trend of individuals coming to Thunder Bay and taking advantage of people with drug addictions, many being Indigenous. They trade in drugs and pry on their vulnerabilities using handguns for protection. There is an increasing number of drug traffickers taking over public housing units by using those residences to deal in drugs at the expense of the lawful tenants, many who are addicts and are paid with crumbs of narcotics. Illegal handguns are routinely used to protect those involved in the drug trade.

25Mr. Samuel-Maragh pleaded guilty to firearm offences and obstructing a police officer, but was not convicted of any trafficking offences. Like Mr. Gurhan, Mr. Samuel-Maragh was a young, black man. He received a sentence of three years imprisonment.

The Defence

26As noted in Priest, Borde, Prosser, and Mark, it is an error to focus almost exclusively on denunciation and general deterrence, and not rehabilitation, when sentencing a youthful first-time offender. [12] In Prosser , the sentence for possession a firearm and drug trafficking was two- and one-half years imprisonment. In Mark , the sentence imposed was four years imprisonment for a young, first-time offender who was 22 years old when the crimes of trafficking and possession of a firearm were committed.

Principles of Sentencing

27The Criminal Code sets out the principles of sentencing:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Reasons

28There is nothing in the facts before me to explain why Mr. Gurhan ended up involved in the drug trade in Thunder Bay.

29His home life appears to be exemplary. He has supportive family and friends. He has employment and education prospects.

30Yet, he was found over 1500 kilometers away from his home in Thunder Bay, with drugs totalling a street value of between $29,000–$54,000 and a loaded 9 mm handgun. He is not a drug user. His mother is “shocked and disappointed in him”, as should be everyone associated with him.

31Trafficking in large quantities of drugs is a serious crime having significant and detrimental effects on the people of this community. Drug traffickers like Mr. Gurhan prey upon these people, whose life circumstances have made them vulnerable to addiction.

32Possession of a loaded, restricted handgun is extremely serious. The purpose of a handgun is to kill. In this case, the handgun was a tool of the drug trade. The handgun was a danger to members of the public, the police, and to Mr. Gurhan.

33Following the guidance of our appellate courts, denunciation and general deterrence should not be the only considerations when sentencing a youthful, first-time offender. I agree that Mr. Gurhan’s prospects for rehabilitation appear to be strong, and that this behavior was very out of character for him.

34The submissions of counsel – three- and one-half to four years imprisonment from the defence, and five years from the Crown – represent the appropriate range of sentences.

35Considering all the factors present in this case, a global sentence of four- and one-half years, less a Downes credit of six months, is appropriate and in keeping with the sentencing principles of denunciation, deterrence, and rehabilitation.

36Please stand Mr. Gurhan.

37I sentence you to four- and one-half years imprisonment as follows:

a. Three years on Count 8 – possession of a loaded restricted weapon; b. One- and one-half years consecutive on Count 2 – possession of cocaine for the purpose of trafficking; c. Six months concurrent on Count 4 – possession of proceeds of crime exceeding $5000; and d. 30 days concurrent on Count 3 – possession of Percocet.

38With Downes credit, the effective sentence is four years imprisonment.

39I recommend to Corrections Canada that Mr. Gurhan be permitted to serve his sentence in an Ontario Federal Penitentiary, specifically one located in Southern Ontario, to assist his family with being involved in such rehabilitative processes as Corrections Canada officials recommend and permit.

Ancillary Orders

40I also impose the following ancillary orders:

a. A DNA order under s. 487.051; b. A s. 109 weapons prohibition for 10 years; and c. All illicit substances, cash, ammunition, and firearm are forfeited to the Crown.

41In the circumstances, the victim fine surcharge is waived.

42I want to thank counsel for their assistance in providing comprehensive and helpful written and oral submissions.