COURT FILE NO.: CR-23-40000030-0000 DATE: 20241115

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DALE BOWEN Defendant

Counsel: Leanna Guzzo for the Crown Corey Nishio for the Defendant

HEARD: October 31, 2024

REASONS FOR SENTENCE

J. R. PRESSER J.

Introduction and Overview

[1] Dale Bowen pleaded guilty before me to possession of a loaded restricted firearm, possession of a firearm while prohibited, and possession for the purpose of trafficking cocaine. These are my reasons for sentence.

[2] Mr. Bowen had a loaded restricted firearm tucked into the waistband of his pants as he was leaving Yorkdale mall, and a satchel containing ammunition and 23.25 grams of cocaine in his car, which was parked at that mall. He was under a firearms prohibition order at the time. These are very serious offences.

[3] Mr. Bowen has a lengthy criminal record, which includes several convictions for drug offences.

[4] Social context evidence filed before me reveals that Mr. Bowen, a Black man, grew up in subsidized housing in a high-crime neighbourhood, in circumstances of disadvantage. He was raised by a single mother without any male role models. He was exposed to violence and drug trafficking from a young age. He was shot twice, once causing serious injury. He has had many interactions with police, including having been carded many times from a young age. Mr. Bowen became fearful. He says that he obtained a gun for protection. He suffers from anxiety and what doctors strongly suspect is post-traumatic stress disorder (“PTSD”). Many of Mr. Bowen’s life experiences can be understood as effects of systemic anti-Black racism. He has a supportive family and friends, has taken some steps toward rehabilitation, accepts responsibility for his offences and has insight into them, and expresses an intention to change his life.

[5] It is always a challenge to craft proportionate sentences. It is especially so in this case, where the offences are grave but there are significant mitigating factors. The requirement of proportionality requires me to craft a sentence that will adequately reflect the extreme gravity of Mr. Bowen’s offences and his moral blameworthiness, accounting for both the factors that indicate high blameworthiness and those, like the effects of systemic racism among others, that mitigate it.

[6] The Crown submits that a fit and proportionate sentence is five to six years’ incarceration, less credit for pre-sentence custody, as well as a number of ancillary orders.

[7] The defence submits that a fit and proportionate sentence is four years’ incarceration. In the defence submission, when credit is given for pre-sentence custody and harsh conditions of incarceration, Mr. Bowen is in a time served position. The defence consents to the ancillary orders sought by the Crown.

[8] I have carefully considered what proportionality requires in all the circumstances of this case. For the following reasons, I have determined that a fit, fair, and proportionate sentence is four years and eight months or 56 months in custody, less 44 months’ credit for time served, for a net remaining sentence to be served of 12 months in custody. There will also be a s.109 weapons prohibition order for life, a DNA order, and a forfeiture order.

The Offences

[9] Mr. Bowen was arraigned and pleaded guilty to three counts in an indictment. These were:

• Count 4 – that he possessed a loaded restricted firearm without being the holder of an authorization or licence and registration certificate, contrary to s. 95(1) of the Criminal Code;
• Count 7 – that he possessed a firearm while prohibited by order under s. 109(2), contrary to s. 117.01(1) of the Criminal Code; and
• Count 8 – that he possessed cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act.

[10] The facts underlying these offences read in by the Crown are as follows.

[11] On Saturday June 11, 2022 at approximately 10:44 p.m., police received a radio call from a witness who advised that they observed a male punching a female in the face repeatedly while sitting in a grey BMW parked in the Yorkdale Mall parking lot. The witness provided a description of the perpetrator as a Black male, 35-40 years old, with a slim build and wearing a white baseball cap. The witness also provided a license plate number for the vehicle and said that it was parked in an accessibility parking spot in front of the Joey’s restaurant.

[12] The responding officers observed the vehicle in question. A woman was seated in the front passenger seat. Officers spoke to the woman, who was uncooperative and refused to provide any information. While speaking to the woman, the officers noted she had swelling to her left eye, which was consistent with being assaulted. Through investigative checks, police were able to confirm that the woman was Shereza Mohammed.

[13] Police reviewed a security video from Yorkdale Mall in which they observed Mr. Bowen, who matched the description provided by the witness, leaving the grey BMW and heading towards the Joeys restaurant. Using the video, police were able to get a better description of Mr. Bowen and the clothing he was wearing (white pants, a white shirt, a black vest, and a white cap with a red bandana).

[14] A short while later, officers located Mr. Bowen as he was walking out of the mall in front of Joey’s restaurant towards the grey BMW. He was stopped and placed under arrest for assault. During the arrest, officers located a black firearm with a prohibited magazine concealed in Mr. Bowen’s waistband. The firearm was a 9 mm Taurus loaded with 15 rounds of ammunition.

[15] Mr. Bowen was provided his rights to counsel and transported to 32 Division where it was discovered that he had five firearms prohibition orders. He was then charged accordingly and held in custody pending a show cause hearing.

[16] A search warrant was granted for the grey BMW. Upon execution of that search warrant, police located a satchel containing 9 mm ammunition, a knife, Mr. Bowen’s identification, and six clear baggies of cocaine (23.25 g), fentanyl (6.35 g) and methamphetamine (7.94g). As a result, further charges were laid.

[17] Mr. Bowen admitted the essential elements of the offences to which he pleaded guilty. He did not admit to having committed an assault or that he had knowledge and control of the fentanyl or methamphetamine discovered by police. The Crown did not seek to prove any of the facts that were not admitted. Accordingly, I am not relying on those facts for the purposes of sentencing Mr. Bowen.

Personal Circumstances and Background of Mr. Bowen

[18] There was no Enhanced Pre-Sentence Report (“EPSR”) in this case. The defence had sought one, but there were delays in its production. This was apparently caused by inadequate resources to produce an EPSR in a timely manner. Mr. Bowen pleaded guilty on December 20, 2023. A EPSR writer was not assigned to the case until August 21, 2024. On September 3, 2024, defence counsel advised the court that it was anticipated that the EPSR would not be completed until mid-November. Mr. Bowen, who was detained on these charges, decided to proceed to sentencing without it. The sentencing hearing was expected to proceed on September 27, 2024. Unfortunately, it had to be adjourned twice. The sentencing hearing ultimately proceeded on October 31, 2024. Mr. Bowen’s sentence is being imposed on November 15, 2024. At the sentencing hearing, defence counsel filed the following documents, with the agreement of Crown counsel: an affidavit from Mr. Bowen; four letters from friends and family; certificates attesting to programs Mr. Bowen has completed at the Toronto East Detention Centre (“TEDC”); his TEDC healthcare and medication records; and his TEDC lockdown records. This material provided me with a wealth of information about Mr. Bowen, his antecedents, and his social context. The Crown did not take issue with the content of any of the materials filed. I commend counsel for their collaboration to ensure that the court had so much relevant and helpful information, even in the absence of an EPSR.

[19] From the materials filed, I learned that Mr. Bowen is presently 39 years of age. He was 36 years old at the time of these offences. He was raised in a single parent household by his mother, Sonia Sutherland. Letters authored by Ms. Sutherland and Mr. Bowen’s older sister, Tanesia Sutherland, confirm that theirs was and is a close and loving family.

[20] Mr. Bowen’s father did not live with the family but would visit from time to time. When Mr. Bowen was five or six years old, his father suddenly stopped visiting. Mr. Bowen describes this as one of the worst times in his life. He would often ask his mother when he would get to see his father, and according to Mr. Bowen, she would always make up excuses as to why they could not see him. One day, Ms. Sutherland took Mr. Bowen and his older sister to see their father at the hospital. Mr. Bowen recalls walking into the hospital room and seeing his father handcuffed to the bed. Mr. Bowen was happy to see his father but subsequently realized that his father had been in jail.

[21] Mr. Bowen’s father was eventually deported to Barbados. He still doesn’t know why. He says his mother would never discuss his father with him. He recalls that his father sent him a letter from Barbados, and that he wanted to write back, but that his mother wouldn’t let him. He indicates that he resented his mother for a long time as a result of this.

[22] Mr. Bowen describes that he keenly felt his father’s absence throughout his childhood, especially since his father disappeared suddenly. Mr. Bowen’s mother tried to fill the void. She sent him to publicly funded summer camps and even got him a Big Brother. Unfortunately, the Big Brother did not continue the relationship with Mr. Bowen after seeing people smoking marijuana in a park near Mr. Bowen’s home.

[23] Ms. Sutherland confirms that her son grew up without a father figure in his life. She says that this absence has made Mr. Bowen want to be present in his children’s lives.

[24] Mr. Bowen describes that when he was growing up, his mother was very strict, resorting to physical discipline with a belt or her hand. He initially lived in subsidized housing in Lawrence Heights with his mother, sisters, and extended family. His mother was trying to get back on her feet because she had recently been released from a two-year prison sentence for importing marijuana. When Mr. Bowen was three years old, his mother was able to secure subsidized housing in Morningside for his nuclear family of four.

[25] Mr. Bowen says that growing up in subsidized housing was difficult. The heat never worked well, so he was always cold in the winter. There was no air conditioning. Appliances often needed repairs. Cockroaches were rampant. Bed bugs and lice were common occurrences in the neighbourhood school.

[26] When Mr. Bowen was in grade four, the family moved back to Lawrence Heights, where they continued to live in subsidized housing. He described that there were a lot of gangs in the neighbourhood. Gang members were identifiable. Their members wore red, which indicated that they were affiliated with a gang called the Bloods. Many of his friends’ older siblings were gang members. He recalled that they would send him and his friends to the store to buy them snacks and would let Mr. Bowen and his friends keep the change to buy candy. He looked up to gang members. They were popular. He did not have any other male role models. Mr. Bowen said that if you didn’t act like a gangster, you would get beat up and bullied. When he was in grade four, he and his friends started a “gang.” They carried cap guns and got into fights with other students in an attempt to be perceived as “cool.”

[27] Mr. Bowen said that drug trafficking was a daily occurrence in Lawrence Heights, one he witnessed often throughout his upbringing. He was ten years old the first time he witnessed a drug deal.

[28] Gunshots were a familiar sound in Mr. Bowen’s neighbourhood. He would hear them when he was playing outside during recess, at lunch time, or after school. When Mr. Bowen was in grade five, someone got shot near his school. Mr. Bowen describes that he was shot at several times through high school and his early twenties, the first time when he was 16 years old. Mr. Bowen was actually shot on May 25, 2010, when he was 25 years old. He did not know the person who shot him, or why he was shot. Three bullets entered and exited his body: one near his spine, one in his buttocks, and one in his right leg. He was taken to Sunnybrook Hospital where he was told he was lucky to be alive. He stayed at Sunnybrook for four to eight weeks for physiotherapy before being sent home with a walker. He still suffers from permanent nerve damage and has screws in his hip, which cause him ongoing significant pain. Mr. Bowen was shot again in 2020 or 2021; fortunately this was a less serious incident. The bullet grazed his head and he was subsequently treated quickly at Humber River Hospital.

[29] Mr. Bowen attended local public schools in Morningside and then Lawrence Heights. Until grade 10, he attended most or all of his classes with a satisfactory performance but did not excel academically. He competed in track and field. Mr. Bowen describes that in grade 10, his attitude to school and life changed dramatically. That year, he and two friends were arrested for a robbery. He was immediately expelled from school. Mr. Bowen says that he and the two friends had been walking home from school when one of them took a calculator from another student. They went to trial. The judge found all three guilty. Mr. Bowen did not think he had done anything wrong. He did not understand the outcome and felt angry and frustrated about it.

[30] Mr. Bowen reports that after his robbery conviction, he gave up on school and “everything.” He couldn’t see the point of trying hard in school. He tried to complete high school at two other schools but was no longer focused on his studies. He was skipping class, fighting with other students, and getting into trouble with the law. To his credit, Mr. Bowen finally obtained his high school diploma from Yorkdale Secondary School in 2016. In 2017, he enrolled in the Audio Engineering Program at the Trebas Institute. He wanted to become a music producer, work at a music studio, and perhaps even own his own studio one day. However, Mr. Bowen did not complete the program because he wanted to earn an income to help support his children, rather than accumulate debt from paying tuition.

[31] As a result of having been shot and shot at, Mr. Bowen thought he would die young. He wanted to experience being a father and have children to carry on his name. For this reason, he wanted to have children at a young age. Mr. Bowen has four children, aged 19, 12, 12, and 11 years of age. None of these children live with him. However, his mother indicates that Mr. Bowen is very present in his children’s lives. His older sister notes that Mr. Bowen is a very loving and hands-on father to his children. He talks to them regularly and keeps up with all of their interests. He helps his children with homework and school assignments, attends their sports games and tournaments, and is generally there to support them.

[32] Shenelle Bowen, Mr. Bowen’s younger sister, is the mother of four children, the youngest of whom is autistic and requires special support. She says that Mr. Bowen is always there for her and her kids. He helped her raise them. He reads to them, helps them with school work, and watches them when she is busy. Ms. Bowen notes that Mr. Bowen is an engaged father whose kids adore him and love to spend time with him. By all accounts, he is respectful and helpful to his mother and his grandmother. He often runs errands and buys groceries for his grandmother.

[33] Mr. Bowen believes that he has experienced overt racism within the criminal justice system. On one occasion, while in custody as a youth, 16 white inmates attacked him and the only other Black inmate on their range. When the guards arrived to break up the fight, Mr. Bowen and the other Black inmate were the only ones transferred to lockdown as punishment. He reports that most of the inmates in lockdown were Black. On another occasion, when he was driving to Thunder Bay, a police officer pulled him over and asked what Mr. Bowen was doing in his town and why Mr. Bowen was visiting his town.

[34] Mr Bowen describes having constantly and repeatedly been stopped, questioned, and searched by police officers for no reason, especially when police were still engaging in the practice of carding.

[35] In Mr. Bowen’s affidavit, he indicates that he has been told that he suffers from anxiety, depression, and PTSD as a result of the violence and shootings he experienced growing up. He suffers from nightmares, poor sleep, loss of appetite, paranoia, bowel issues, occasional suicidal thoughts, and feelings of hopelessness. He indicates that he is currently waiting to participate in counselling for the first time in his life, which he hopes will help alleviate his symptoms.

[36] The healthcare records from the TEDC confirm that Mr. Bowen has sought medical attention within the institution for many of these symptoms. He has seen health professionals, including psychiatrists. The psychiatrist notes indicates that Mr. Bowen suffers from anxiety and likely also PTSD. He has been prescribed psychotropic medication for anxiety and PTSD and is compliant with it. The TEDC health records confirm that Mr. Bowen has been referred for counselling in relation to anxiety and depression, at his request. At the time of the sentencing hearing, he was still waiting for counselling to commence.

[37] When released from custody, Mr. Bowen plans to get a job with his friend, Rodney Hudson, and to stop selling drugs. He indicates in his affidavit that he does not foresee ever getting a gun again. He says he has now realized that having a gun would not protect him from being shot at again, so he no longer thinks he needs one to protect himself.

[38] Mr. Bowen’s mother, sisters, and long-time friend Rodney Hudson describe him as a kind and generous person. They say that Mr. Bowen is thoughtful and goes out of his way to be helpful to others. Mr. Hudson says that when Mr. Bowen is focused and staying out of trouble, he is a hardworking and reliable person. All of them believe that Mr. Bowen is committed to turning his life around. They all say, as Mr. Bowen did when he addressed the court at his sentencing hearing, that he is committed to living a law-abiding life because he wants to set a better example for his children and to be present, out of custody, to be involved in their lives. They all believe that with the structure and stability of legitimate employment and personal and familial supports, Mr. Bowen will become a productive and prosocial member of society. They all commit to providing him with the necessary supports. Mr. Hudson also confirms that he will assist Mr. Bowen to seek and find employment at his place of work, although Mr. Hudson is not in a position to offer Mr. Bowen a job himself.

[39] The defence filed eight certificates attesting to the fact that Mr. Bowen has completed educational programming within the TEDC. These programs provided education about healthy relationships, substance use, managing stress, anger management, goal-setting, and more.

[40] Mr. Bowen has a lengthy criminal record. His youth court record spans from 2003 to 2005, and his adult record runs from 2005 to 2017. By my count, it contains some 35 youth and adult convictions, for a wide array of offences. These include robbery with violence, assault, possession of schedule I and schedule II substances, and possession for the purpose of trafficking schedule I and schedule II substances. He also has prior convictions involving weapons, namely a conviction for assault with a weapon and one for carrying a concealed weapon, but I have no information as to what those weapons were and no reason to believe that they were firearms. Mr. Bowen has no prior firearms-related convictions. He has served sentences ranging from suspended sentences plus probation at the low end to 14 months in custody at the high end. Most of the sentences imposed on Mr. Bowen have been in the range of one to five months. He has never before served penitentiary time. His last conviction was in 2017, for uttering threats. His last drug convictions were in 2014.

Analysis

Applicable Legal Principles

[41] The fundamental purpose of sentencing is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society by imposing just sanctions with regard to one or more of the enumerated sentencing objectives: s. 718 of the Criminal Code. The enumerated objectives include denunciation, specific and general deterrence, separation of offenders from society, rehabilitation, and acknowledgement of the harm done to victims or the community.

[42] 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: s. 718.1 of the Criminal Code. Proportionality is the alpha and omega of sentencing. A just sanction “is guided by the loadstar of proportionality”: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 59.

[43] Proportionality is determined with regard to the relevant aggravating and mitigating circumstances related to both the offence and the offender: s. 718.2.

[44] The objectives and principles of sentencing “must be taken into account and blended in a manner which produces a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender”: Morris, at para. 61.

[45] In addition to consideration of the relevant objectives of sentencing and the aggravating and mitigating circumstances, sentencing judges must also consider the following guiding principles, set out in ss. 718.2(b)-(e), as annotated in Morris, at para. 60:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances [the parity principle];

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

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [the restraint principle]; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders [the restraint principles as applied to incarceration].

[46] Firearms offences, like the offences at issue here, require sentences that emphasize denunciation and deterrence: Morris, at paras. 68, 71; R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, 1 S.C.R. 773; R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 19. The inherent dangerousness of firearms, and the extreme risk they pose to public safety, make denunciation and deterrence of paramount importance. Given the emphasis on sentences that prioritize denunciation and deterrence, proportionate sentences will typically require imprisonment for firearms offences: Morris, at para. 70.

[47] Proportionality also requires that deterrence and denunciation be the primary sentencing objectives for offences involving the trafficking of dangerous, addictive, illegal substances like cocaine: R. v. Woolcock (2002), O.J. No. 4927 (C.A.), 2002 CarswellOnt 7683, at para. 8; R. v. Owusu, 2024 ONSC 671, 2024 W.C.B. 153, at para. 34. The policy reason for this is that “the extraordinary harm associated with these drugs, the collateral crime associated with them (including crimes of violence), and the premise that rationally premeditated commercial crimes like drug trafficking by a non-addict are particularly amenable to deterrence”: Owusu, at para. 34.

[48] Systemic racism is to be factored into the sentencing analysis for Black offenders. The starting point for such analysis must be the acceptance of the reality of anti-Black racism: Morris, at para. 1. Social context evidence relating to an offender’s life experiences, including experiences arising from anti-Black racism, may be relied on where relevant to mitigate the offender’s moral blameworthiness “and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing as described in s. 718”: Morris, at para. 13, see also paras. 42, 87, 123.

Applicable Range of Sentence

[49] The Crown submitted that the appropriate sentence for these offences - unauthorized possession of a loaded firearm, breach of a firearm prohibition order, and possession for the purpose of trafficking of 23.25 grams of cocaine - is a global sentence of five to six years. In the Crown submission, this is a sentence at the low end of the applicable range for these offences, which is appropriate given the particular mitigating factors that present in this case.

[50] The defence submitted that the range of sentence is lower, even for this combination of serious offences, when there are meaningful mitigating factors including the effects of systemic racism. The defence seeks a sentence of four years, time served, arguing that this is within the applicable range for similar offences committed by similarly situated offenders in similar circumstances.

[51] Both counsel filed a number of cases to assist me in the determination of the appropriate range of sentence, and where within the range this offence and offender fall. I have reviewed and carefully considered all of the case law filed by counsel. It reveals that it is difficult to identify a hard and fast range of sentence for offences involving the combination of firearms, drugs, and breach of firearms prohibition convictions. These are offences that can be committed in a myriad of ways by offenders in very different circumstances. But there are some broad general guidelines that can be gleaned from the jurisprudence.

[52] Cases filed by the Crown include the following. In R. v. Robinson, 2023 ONCA 205, 2023 W.C.B. 458, the Court of Appeal allowed an appeal from a 10-year sentence for convictions which included the three convictions faced by Mr. Bowen. The Court of Appeal reduced the sentence by 18 months to give the appellant credit for harsh conditions in pre-sentence custody arising from the COVID-19 pandemic but did not otherwise consider the sentence unreasonable or unfit. The sentence was reduced to eight and a half years. However, the facts in Robinson are not completely aligned with those in with the present case. Mr. Robison was involved in a motor vehicle incident because he had been driving while impaired. He was found to be in possession of a larger quantity of cocaine than Mr. Bowen was. Mr. Robinson had 105.5 grams of cocaine whereas Mr. Bowen had 23.25 grams. Mr Robinson was also in possession for the purpose of trafficking of 16.5 grams of crack cocaine, 35 grams of heroin, and 56 grams of powdered fentanyl. The aggravating factor of a quantity of other drugs in Mr. Robinson’s case has not been admitted or proven in this case.

[53] In R. v. Smith, 2023 ONCA 500, 2023 W.C.B. 1132, the Court of Appeal allowed an appeal from a seven-year global sentence for possession of a loaded firearm, breach of a firearm prohibition order, and possession for the purpose of trafficking fentanyl. However, the appeal was allowed because of an error by the sentencing judge in apportioning credit for pre-sentence custody as well as credit for harsh conditions of pre-sentence incarceration. The court did not otherwise consider the seven-year sentence imposed by the trial judge to be unfit or unreasonable. The appellant had pleaded guilty, had a prior criminal record including prior convictions for similar offences, and had recognized prospects for rehabilitation. This case is not strictly analogous to the one before me. Mr. Bowen does not have prior convictions for firearms offences; Mr. Bowen’s drug conviction relates to cocaine which is a less lethal and less dangerous drug than the fentanyl at issue in Smith; and unlike the present case, there was no evidence as to the mitigating effects of anti-Black racism in Smith.

[54] In a different case also called R. v. Smith, 2023 ONCA 620, 2023 W.C.B. 1554, the Crown successfully appealed a conditional sentence of two years less a day for possession of a prohibited firearm with readily accessible ammunition, breach of a weapons prohibition order, possession of a firearm with the serial number removed, pointing a firearm, and possession for the purpose of trafficking. The Court of Appeal held that the trial judge made a number of errors in principle and proceeded to sentence the respondent to four and a half years in custody, less credit for pre-sentence custody and time on restrictive bail for a net sentence of three years to be served.

[55] In R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, the Court of Appeal upheld a global sentence of six years less credit for pre-sentence custody for possession of a loaded firearm, possession for the purpose of trafficking of 34.39 grams cocaine and crack cocaine, breach of a firearms prohibition, and breach of probation. Mr. Griffith pleaded guilty and admitted that he had attended in public spaces with the loaded firearm, had used the firearm as a tool of his drug trade, and had a prior criminal record for similar offences. Mr. Griffith had also demonstrated insight into his offending behaviour and had prospects for rehabilitation. While in many respects Griffith bears similarities to the present case, there is one important difference: In Mr. Griffith’s case, there was no social context evidence of racism or its impact on the accused.

[56] In R. v. Yasin Patel, 2019 ONSC 6302, 160 W.C.B. (2d) 408, a youthful offender with a comparatively short criminal record, including one prior conviction for trafficking, was convicted of a number of offences after trial. These offences included the three offences at issue here. He was sentenced globally to serve four years’ imprisonment. This case is similar to the one before me. However, Mr. Yasin Patel was youthful whereas Mr. Bowen is not. Further, Mr. Yasin Patel had a much less significant prior criminal record than Mr. Bowen.

[57] The defence filed a number of cases in which social context evidence of anti-Black racism was factored into sentencing for this combination of offences. In R. v. Marfo, 2020 ONSC 5663, 167 W.C.B. (2d) 66, an adult first offender who pleaded guilty was sentenced to two years’ imprisonment. The sentencing judge considered that systemic anti-Black racism had diminished the defendant’s moral blameworthiness. Mr. Marfo’s circumstances differed from those of Mr. Bowen because he had no prior convictions. In R. v. Ahmed, 2021 ONSC 8157, [2021] O.J. No. 6979, an adult who pleaded guilty was sentenced to three years and four months in custody. The offender had a criminal record but had not had any convictions for eight years. The sentencing judge considered the impact of systemic anti-Black racism in determining that rehabilitation was an important sentencing objective in this case. In many respects, the facts in Ahmed are similar to those in this case. A distinguishing feature is that Mr. Ahmed had a problem of binge drinking of alcohol, and that he committed the offences at issue while intoxicated as a result of a binge. The sentencing judge found this to be a factor that provided partial explanation for some of his offending behaviour: Ahmed, at paras. 20, 29. In R. v. Goodridge, 2022 ONCJ 139, 2022 CarswellOnt 4012, an adult was found guilty after trial. He was sentenced to a community sentence order of two years less a day. He had an unrelated criminal record for assault causing bodily harm and mischief. The sentencing judge considered social context evidence of anti-Black racism to be relevant to Mr. Goodridge’s moral blameworthiness. Unlike Mr. Bowen, Mr. Goodridge did not have a long and extensive criminal record and the convictions he had were for unrelated offences.

[58] In short, the sentences handed down in cases where offenders are convicted of the same three offences as Mr. Bowen vary widely depending on case and offender-specific factors. Broadly speaking, for this combination of offences, the range of sentence is from two years, where there are extremely mitigating circumstances, to eight years, where there are extremely aggravating ones. I will now consider the aggravating and mitigating factors in Mr. Bowen’s case to determine where his sentence should fall within this broad range.

Aggravating Factors

[59] The most serious aggravating factor in this case is the gravity of the offences. Gun offences are serious crimes: Nur, at para. 6. So too are drug trafficking-related offences: Woolcock, at para. 8. In Morris, at para. 68, the Court of Appeal explained why the gravity of the firearms offences like those committed by Mr. Bowen is significant:

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…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 [internal citations omitted].

[60] Mr. Bowen was in possession of a loaded firearm, ready to be discharged, hidden in the waistband of his pants as he moved about a mall. He would, no doubt, have interacted with many members of the public as he did so, exposing them to immediate and serious danger. Courts have repeatedly held that possession of a firearm in public increases the gravity of the offence: Ahmed, at para. 25, citing R. v. Wright, 2018 ONSC 4209, 148 W.C.B. (2d) 532 at para. 39; R. v. Hayles-Wilson, 2018 ONSC 4337, 149 W.C.B. (2d) 281, at para. 15; R. v. Brown, 2013 ONSC 4230, 107 W.C.B. (2d) 515, at para. 51; R. v. Ferrigon, [2007] O.J. No. 1883 (S.C.J.), 73 W.C.B. (2d) 621, at para. 25.

[61] It is also aggravating that Mr. Bowen possessed the firearm and illegal drugs. In R. v. Wong, 2012 ONCA 767, 104 W.C.B. (2d) 421 at paras. 11 and 13, the Court of Appeal for Ontario held:

The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.

The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing.

[62] The presence of both a gun and drugs might suggest that Mr. Bowen was in possession of the gun as a tool of his criminal drug trade. This, in turn, would suggest that his offence of unauthorized possession of a loaded restricted weapon falls toward the “true crime” end of the spectrum of firearms possession offences, which is aggravating and attracts a higher sentence. There is a robust jurisprudence suggesting that where the unauthorized possession of a gun is associated with other criminal activity, such as drug trafficking, the appropriate range of sentence is three to five years for the gun offence alone, even on a first gun possession conviction: Owusu, at para. 29, citing R. v. Graham, 2018 ONSC 6817, 152 W.C.B. (2d) 208 at paras. 36-42 citing a body of case law on point, aff’d 2020 ONCA 692. In this case, I accept that Mr. Bowen may have been, in part, motivated to illegally possess a loaded gun so as to protect his drug stash. However, as I will discuss further, I accept that Mr. Bowen’s primary motivations in carrying a loaded firearm were fear and self-protection, not furthering his drug trafficking business. In a criminally misguided way, he thought he could protect himself by possessing a loaded firearm. For this reason, I do not consider it appropriate to give the combination of a gun alongside drugs the full aggravating effect that possessing a gun as a tool of the criminal drug trade would normally attract.

[63] It is also aggravating that Mr. Bowen was in possession of a not insignificant quantity of cocaine.

[64] Mr. Bowen’s lengthy criminal record is a further aggravating factor. It suggests that despite previous criminal trials, convictions, and sentences, he has continued to offend and re-offend. His record includes convictions for related drug offences: nine prior drug offences, five of which were for trafficking. Mr. Bowen has lived a criminal lifestyle for a long time. There can be no doubt that he has, over time, been a drug trafficker. This speaks to the need not only for denunciation and general deterrence, but also for specific deterrence here; to the need for a sentence that will be punitive enough to teach Mr. Bowen that the price for continued criminal behaviour is not one worth paying. That having been said, Mr. Bowen has accepted responsibility for his offences, and intends to change his life. As I will discuss further below, I accept that Mr. Bowen’s desire to rehabilitate himself is sincere, and that he has the capacity to succeed in doing so. Moreover, there has been a gap in time since his last conviction and an even longer gap since his last related conviction. In these circumstances, the need to specifically deter Mr. Bowen is not as great as it would otherwise be with a criminal record of this length, spanning this duration.

[65] It is also highly aggravating that Mr. Bowen was in possession of the gun in breach of five previous s. 109 firearms prohibition orders. He was prepared to arm himself with a gun notwithstanding multiple court orders prohibiting him from doing so.

Mitigating Factors

[66] Mr. Bowen’s guilty plea is mitigating. In pleading guilty, he has accepted responsibility for the offences he committed. In his affidavit and in his statement to the court, Mr. Bowen acknowledged the seriousness of his offences, accepted responsibility for his actions, and expressed remorse. I accept that Mr. Bowen has insight into his criminal conduct and its inherent dangerousness, and that he is genuinely remorseful. In addition, his guilty plea obviated the need for a trial, which was scheduled for one week of Charter motions and two weeks of trial. By pleading guilty, Mr. Bowen saved the justice system resources that would have been required to bring him to trial, at a time when these are scarce and in high demand.

[67] Mr. Bowen indicates that he wants and intends to change his life. He wants to rehabilitate himself and live a law-abiding life going forward. The evidence establishes that he has already taken some steps in this direction. He has sought out medical attention and treatment within the jail for his anxiety and probable PTSD, has been compliant with psychiatric medication, and is awaiting counselling which was initiated at his request. He has also completed a number of educational programs within the TEDC to assist him with rehabilitation. He plans, once released, to continue with treatment and to secure legitimate employment. Mr. Bowen’s intentions, backed up by concrete steps he has undertaken, auger well for his rehabilitative prospects. His family and community believe that he can successfully change his life, and they pledge their support to him on his journey to a prosocial and law-abiding life. The support of the people closest to Mr. Bowen will be protective factors against re-offending and will help him realize his current good intentions.

[68] The road to full rehabilitation will not be an easy one for Mr. Bowen. He has lived a criminal lifestyle for a long time. He has limited education and little employment experience. He has four children to support. Nevertheless, I, like Mr. Bowen’s family and friends, believe that he sincerely wants to change his life. His insight into his criminal offending behaviour was evident when he addressed the court. He said that, as someone who had been shot and shot at, he knows all too well the negative impact of firearms on the community. He acknowledged that having a firearm was a bad choice, as was selling drugs, particularly after what he personally had lived through. He did not want to be the cause of more gun violence in his community. He also had insight into how negatively the absence of his father had impacted on him. He does not want to be absent for his children as his father was for him. He expresses a desire not only to be present but to set a good example for his children going forward.

[69] Mr. Bowen’s desire to rehabilitate may well also be a product of the educative effect of the time he has spent in custody on these charges. Mr. Bowen has been detained in custody on these charges since his arrest on June 11, 2022, a period of just over 29 months. The longest sentence he had ever served before was 14 months. With statutory release, he would have served less than that. This period of 29 months is the longest time Mr. Bowen has ever spent in jail. He effectively acknowledged that this longest-ever detention has been educative for him when he addressed the court. He said he has used his time in custody to reflect on his choices and their impact on him and his family.

[70] In addition to having a genuine desire to rehabilitate himself, and insights into why he should, I believe that Mr. Bowen has the capacity and supports to do so. He has demonstrated this by completing high school as an adult, and by taking steps toward his rehabilitation while in custody. He has the support of his family and community. I accept that Mr. Bowen has rehabilitative potential. Although denunciation and deterrence are the primary sentencing objectives in this case, I find that rehabilitation is also an important sentencing objective. The evidence of Mr. Bowen’s life experiences, against the backdrop of the social context of anti-Black racism to which Mr. Bowen has been subjected, help me to conclude that the objective of rehabilitation has to be a focus in arriving at a proportionate sentence.

[71] Although there was no EPSR filed in this case, I am satisfied that Mr. Bowen’s life and his criminal offending behaviours have been meaningfully affected by systemic anti-Black racism. I am entitled, perhaps even required, to “take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders”: Morris, at para. 123. I am also entitled to consider the historical and social facts referred to in the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” that was appended to the sentencing decision in Morris at first instance: Morris, at paras. 42, 43; R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154, at Appendix A. In addition, the Crown accepts that Mr. Bowen was impacted by systemic anti-Black racism.

[72] In this case, I find that Mr. Bowen’s lived experiences as a Black man who was affected by racism are relevant to his sentence in the following two ways: first, they somewhat mitigate his moral blameworthiness, and second, they highlight that rehabilitation needs to be an important sentencing objective: Morris, at paras. 79, 81, 99-102.

[73] Mr. Bowen was raised in circumstances of disadvantage, in subsidized housing, in high-crime neighbourhoods. His mother had been incarcerated and struggled to get back on her feet after being released from prison. She struggled to support her three children. Mr. Bowen was expelled from school after a criminal conviction he perceived as unjust, and this caused him to give up on school and, as he put it, on everything. His father was incarcerated and then deported, disappearing completely from Mr. Bowen’s life. Mr. Bowen had no adult male role models. He was exposed to gang members in his community who were older, had social status, and had access to money. Because he ran errands for them, he was given money to buy candy. His role models were gang members and drug dealers. Being associated with gangs and crime was a way of attaining status in Mr. Bowen’s community. He was exposed to the drug trade throughout his life, from a very young age. He was exposed to violence, including gun violence, throughout his life, from a very young age. He was shot at, and actually shot, not once but twice. One of these shootings was serious. He was told by medical professionals that he was lucky to be alive. He still suffers from the physical effects of this gun shot. He had many negative interactions with police and experienced overt racism from police and in custodial settings.

[74] Many of these life experiences are effects of systemic anti-Black racism:

• Black masculinity is often expressed through violence and dominance because “acceptable means of displaying masculinity are blocked” for Black men, and “experiencing racism is a daily reality”: Expert Report, Morris (SCJ), at Appendix A, p. 5;
• “. . . exerting violence and aggression, or at least exhibiting the potential for violence and aggression, is key to gaining respect within structurally disadvantaged communities. Violence may also be seen as an accepted method of dispute resolution for individuals who subscribe to “street” oriented subcultural norms, and view the police and criminal justice system as an oppressive institution, unable or unwilling to serve as a meaningful resource. Both the marginalization of Black men, and the criminalization that results from it, influence how they come to view themselves, and as a result, how they navigate the world in light of the opportunities (or lack thereof) afforded to them”: Expert Report, Morris (SCJ), at Appendix A, p. 6;
• “Black students are more than twice as likely to be suspended and almost twice as likely to be expelled compared with White students and students from other racialized groups”; “Suspension and expulsion rates are also an important indicator of academic success as they reflect time spent outside of the educational system, thus impacting upon student’s [sic] attachment to their schools, peers, and teachers. Exclusion from school is widely recognized as a driver for wider social exclusion and is highly correlated with unemployment and involvement in crime”; “Suspensions and expulsions may be particularly detrimental if they are perceived by students to be unjust, which in the case of Black youth, they often are”; Anti-Black racism in schooling generally and zero-tolerance policies in particular “have contributed to the school-to-prison pipeline, or the funneling of underachieving and excluded Black students into the criminal justice system”: Expert Report, Morris (SCJ), at Appendix A, pp. 9, 11;
• “one-quarter of Black Canadian women live below the poverty line (compared with only 6% for White Canadians)”; “Based on the poor educational outcomes for Black students…it is unsurprising that Black youth are particularly vulnerable to unemployment”; “Evidence suggests that Black job seekers are excluded from the labour market, in part, due to the discriminatory actions of employers”; “Predictably, higher levels of unemployment and lower levels of income increase rates of poverty among Black Canadians”; “Black Canadians are also over-represented in Toronto neighbourhoods most afflicted by poverty and other forms of disadvantage” in which they “have poorer access to recreational and community centres, libraries, good schools, community health hubs and hospitals (Hulchanski, 2010). These are the very services that serve to create strong communities and to protect young people from the allures of crime, gang membership and violence that accompanies it . . . it is young Black men who are most adversely affected by this violence. In response, these neighbourhoods are also subject to a hard-enforcement style of policing aimed at targeting its perpetrators”: Expert Report, Morris (SCJ), at Appendix A pp. 11-13;
• “Black Canadians are more likely than members of other racial groups to be stopped, searched, and questioned by the police”: Expert Report, Morris (SCJ), at Appendix A p. 15;
• Black people are grossly overrepresented in Canada’s custodial facilities, Black inmates experience discriminatory treatment in carceral settings, and Black offenders serve “longer periods of incarceration than are others charged with the same or similar crimes”: Expert Report, Morris (SCJ), at Appendix A pp. 12, 18, 20;
• “Black Canadians, and young Black men in particular, keenly feel the discrimination they experience at the hands of the criminal justice system”: Expert Report, Morris (SCJ), at Appendix A p. 20;
• “evidence suggests that Black youth engage in violence as a means of “self-help” resulting from the belief that the police cannot, or will not, provide them with adequate protection. . . gun carrying among Black youth in their sample resulted out of a fear of victimization and a feeling that the police could not act as capable guardians”: Expert Report, Morris (SCJ), at Appendix A, at p. 15.

[75] I accept that anti-Black racism played a meaningful role in Mr. Bowen’s life and in the choices he made. He grew up in poverty with no positive male role models and was alienated from school. He had few legitimate employment opportunities. He was surrounded by gang culture and criminality and was himself a victim of serious gun violence. He became fearful, suffering from anxiety and likely PTSD. He experienced racism. Mr. Bowen had negative interactions with police and the criminal justice system. He feared for his own safety and did not trust the police to keep him safe. His drug dealing and gun possession can be understood as maladaptive coping mechanisms to deal with his dangerous life circumstances, and the absence of opportunities to advance or even earn a legitimate income.

[76] In my view, anti-Black racism played a role in Mr. Bowen’s strong fear for his safety in the community, and in the absence of legitimate sources of income available to him. The evidence of Mr. Bowen’s experiences, in their social context, help explain why he committed these offences. They offer mitigating explanations for his possession of a loaded gun and for his possession of cocaine for the purpose of trafficking. Mr. Bowen’s personal responsibility and culpability for the offences are somewhat diminished by his social context. But this is a limited mitigating factor: Morris, at para. 101. Social context helps explain why Mr. Bowen did what he did but does not excuse his conduct. Mr. Bowen made the choice “to arm himself in public with a concealed, loaded, deadly weapon,” and to traffic cocaine. This is conduct which put members of the community, police officers, the passenger in his car, and Mr. Bowen himself, at real risk: Morris, at para. 101. The offences he committed remain grave, albeit with somewhat diminished moral blameworthiness.

Anti-Black Racism, the Importance of the Sentencing Objective of Rehabilitation, and the Gap Principle

[77] I also consider the evidence of Mr. Bowen’s life experiences against the backdrop of the social context of anti-Black racism, to be relevant to his rehabilitative prospects. This, in turn, satisfies me that in addition to the paramount objectives of denunciation and deterrence, I must consider the objective of rehabilitation.

[78] Typically, a prior criminal record “results in a lengthier sentence, not because the offender is being punished again for the earlier offences, but because the record suggests that he or she has diminished prospects for rehabilitation”: Ahmed, at para. 31, citing R. v. Hicks, 2007 NLCA 41, 268 Nfld. & P.E.I.R. 125, at para. 14. Mr. Bowen’s lengthy criminal record suggests that he has lived a criminal lifestyle for much of his life; that he is a committed recidivist. With this kind of record, Mr. Bowen could easily be written off as someone who has little to no chance of reforming his life.

[79] However, like Schreck J. in Ahmed at para. 31, I find that Mr. Bowen’s prior criminal record is “related to [his] association with negative peer influences while residing in an impoverished area, both factors commonly seen in sentencing cases involving Black Canadian men.” Unlike in Ahmed, there is no evidence that the gap in Mr. Bowen’s criminal record occurred at a time when Mr. Bowen left his neighbourhood and got away from his negative peer influences. As a result, the straight line that Schreck J. was able to draw between Mr. Ahmed’s criminal behaviour and his exposure to his impoverished community and negative peer influences, is unavailable to me in this case: Ahmed, at para. 31. However, as I have already found, Mr. Bowen’s life experiences were impacted by systemic racism, and these influenced his disastrously maladaptive decision-making and criminal conduct.

[80] Notwithstanding his social context, Mr. Bowen was able to complete high school as an adult. Notwithstanding his social context, he had no criminal convictions from 2017 to 2024, and no drug-related convictions from 2014 to 2024. It is notable that the gap in Mr. Bowen’s criminal record follows his completion of high school in 2016, and enrollment in college in 2017. This suggests that, notwithstanding a history of criminal behaviour affected by a negative environment that is linked to systemic factors, Mr. Bowen has the capacity to do better. His history reveals that he can overcome his difficult lived experiences and circumstances to make better choices, to live a law-abiding life. This seems to be the case when he proactively avails himself of educational resources. I infer accessing other resources and supports could have the same effect.

[81] I apply the gap principle, as informed by Mr. Bowen’s personal history, and by the social context in which it unfolded. The rationales animating the gap principle were described in R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at para. 68 citing R. v. Singh, 2012 ONSC 30, 286 C.C.C. (3d) 204, at para. 182, as follows:

1. a gap in an offender’s criminal record is relevant to future risk and to rehabilitative potential;
2. a person who has rectified past behaviour for a substantial period of time should be considered as having better prospects for individual deterrence and rehabilitation;
3. if someone with a criminal record has not had any convictions for several years, they are to be treated if not as a first offender, then almost as a first offender; and
4. ordinarily, the gap should reflect a sufficient passage of time to be relevant.

[82] Mr. Bowen has had no criminal convictions for seven years, and no related convictions for 10 years. In my view, he is capable of rehabilitating himself. Accordingly, I consider rehabilitation to be an important objective in sentencing Mr. Bowen, alongside the paramount objectives of deterrence and denunciation.

Pre-sentence Custody and Harsh Conditions in Pre-Sentence Custody

[83] Both the Crown and the defence agree that Mr. Bowen should be given credit for the time he has spent in pre-sentence custody at the Summers rate of 1.5:1: R. v. Summers, 2014 SCC 26, 1 S.C.R. 575. The defence also submits that he should be given credit for time spent in unusually harsh conditions of pre-sentence custody, known as Duncan credit: R. v. Duncan, 2016 ONCA 754, 133 W.C.B. (2d) 367.

[84] I accept that I am required to give Mr. Bowen credit for the time he has spent detained in pre-sentence custody at the Summers rate of 1.5:1. The Summers credit operates as a deduction from what I determine to be the appropriate sentence for these offences: R. v. Marshall, 2021 ONCA 344, 174 W.C.B. (2d) 88, at para. 51. Mr. Bowen has been detained in pre-sentence custody from the date of his arrest on June 11, 2022 until the date of his sentencing on November 15, 2024. This is a period of 29 months and five days of real jail time. With Summers credit, Mr. Bowen has served the equivalent of just under 44 months in jail. Accordingly, 44 months will be deducted from his sentence. The remainder will be the net time he will still be required to serve.

[85] By contrast, Duncan credit “is not a deduction from the otherwise appropriate sentence”: Marshall, at para. 52. Rather, as the Court of Appeal held in Marshall, at para. 52:

. . . it is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “ Summers ” credit will be deducted. Because the “ Duncan ” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[86] It is not an error to specify a number of months or days given as Duncan credit. However, when a sentencing judge specifically quantifies Duncan credit, this can lead to improper treatment of Duncan credit as a deduction from the appropriate sentence in the same way as Summers credit is deducted. This, in turn, can lead to Duncan credit taking on “an unwarranted significance in fixing the ultimate sentence imposed”: Marshall, at para. 53. As a result, it is preferable for Duncan credit to be treated as a mitigating “factor to be taken into account when determining the fit sentence in all of the circumstances”: R. v. Smith, 2023 ONCA 500, 89 C.R. (7th) 297 at para. 37. A sentence must remain proportionate, even when Duncan credit is given in mitigation.

[87] In this case, the defence filed an Incarceration Summary from the TEDC in relation to the conditions of Mr. Bowen’s incarceration there, covering the period of July 16, 2022 to August 20, 2024. These records reveal that Mr. Bowen was locked down for 166 days of partial or full lockdowns. Defence counsel advised, and the Crown did not take issue with the fact, that Mr. Bowen spent an additional eight days in lockdowns in September and October 2024, for a total of 174 lockdown days. Defence counsel also advised, and the Crown did not take issue with the fact, that Mr. Bowen was originally detained upon arrest at the Toronto South Detention Centre (“TSDC”). Lockdown records were not filed for the time Mr. Bowen spent at TSDC. However, counsel advised that Mr. Bowen spent 14 days on the COVID lockdown range when he was first admitted to TSDC, for a total of at least 188 days on lockdown between the two jails. In total, Mr. Bowen spent about one in every four and a half to five days in lockdown.

[88] The TEDC records indicate that generally all programming is offered, even when inmates are locked down. However, Mr. Bowen advised through counsel that this was not the case. Rather, according to Mr. Bowen, programming is not offered during full lockdowns, only during partial ones.

[89] The records further indicate that access to the yard is only offered 27.7% of the time. Mr. Bowen advised that the “yard” is not really outdoors. Instead, it is a room with a mesh roof. Inmates are not given hats or gloves, so they do not avail themselves of access to the yard in winter, even when it is offered.

[90] The records also indicate that Mr. Bowen was triple bunked, in other words, housed with two other people in a cell that was constructed and outfitted for two inmates, for 50 days. Defence counsel advised that Mr. Bowen was triple bunked for more than 50 days. I infer that this is because the TEDC records do not cover the entire period from Mr. Bowen’s arrest to the date of imposition of sentence. Indeed, Mr. Bowen was triple bunked and sleeping on a mattress on the floor of his cell on the date of the sentencing hearing, a date which was not covered by the TEDC records.

[91] Mr. Bowen advises through counsel that while the quality of food at TEDC is adequate, the quantities of food provided are not. He is often hungry. He seeks to supplement with food from the canteen, to stave off hunger.

[92] On this evidence, I am satisfied that Mr. Bowen has been subjected to particularly harsh conditions in pre-sentence detention. This is a mitigating factor I have considered in fashioning a proportionate sentence, but I decline to quantify the exact amount of credit to be given or to deduct a specific amount from the appropriate sentence.

Credit in Mitigation for Delays in the Production of the EPSR

[93] The defence asked me to consider the post-conviction delays caused by efforts to obtain an EPSR to be mitigating. In support of this request, the defence relied on two decisions of Goldstein J. in which the lengthy delays caused by production of EPSRs were considered to be mitigating on sentence: R. v. Jones, 2024 ONSC 3181, 2024 W.C.B. 963, at para. 36; R. v. Harrison, 2024 ONSC 3272, 2024 W.C.B. 994 at paras. 7, 43.

[94] In coming to the view that a lengthy delay occasioned by the production of an EPSR was a mitigating factor, Goldstein J. relied on the Court of Appeal’s decision in R. v. Hartling, 2020 ONCA 243, 456 C.R.R. (2d) 352. In Hartling, the Indigenous appellant argued that 14-months of post-verdict delay violated his rights under s. 11(b) of the Charter. The delay was caused by the lack of institutional resources to obtain a Gladue report in the appellant’s district: Hartling, at para. 96. The Court of Appeal held that the delay was presumptively unreasonable because it exceeded the five-month presumptive ceiling for post-verdict delay, and that it was neither a product of an exceptional circumstances nor justified by the Crown: Hartling, at paras. 98 – 103, citing R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, at paras. 86, 87. The Hartling Court found that the appellant’s s. 11(b) rights were violated and reduced his sentence by five months to remedy the breach: Hartling, at paras. 110 – 123. Importantly, the Court noted that “[d]elay in sentencing that does not rise to the level of a Charter breach has long been considered a factor in mitigation of sentence”: Hartling, at para. 118, citing R. v. Bosley, 18 W.C.B. (2d) 179, 59 O.A.C. 161 (C.A.); R. v. Cooper (No. 2) (1977), 35 C.C.C. (2d) 35 (C.A.), 4 C.R. (3d) S-10.

[95] It will be recalled that Mr. Bowen pleaded guilty on December 20, 2023. He is being sentenced on November 15, 2024, almost 11 months after he was found guilty. An EPSR writer was not assigned to his case until the third week of August 2023, a delay of some eight months. On September 3, 2024, Mr. Bowen’s lawyer advised that the EPSR could not be completed until mid-November 2024. At that time, he elected to proceed without it, and a sentencing hearing was scheduled for September 27, 2024. Delays from that initial hearing date to the date of imposition of sentence fall at the feet of the court.

[96] There can be no doubt that delays in the production of the EPSR caused much of the post-verdict delay in this case. Unfortunately, our courts are no strangers to delay caused by inadequate resources to produce EPSRs in a timely manner: see R. v. J.B., 2024 ONCJ 268, 2024 CarswellOnt 8203, at para. 32 for a list of cases in which EPSRs were delayed. It seems counter-intuitive that these reports, which can provide important, helpful, and mitigating information to sentencing judges, are so difficult to obtain in a timely manner. Frequently, the only way an EPSR can be produced expeditiously is for an offender to pay for it privately. This is often not an option given the kinds of systemic disadvantage, including financial, to which offenders who require these reports are subject and to which the report would likely speak: R. v. McLarty-Mathieu, 2022 ONCJ 498, [2022] O.J. No. 4925, at paras. 11, 19 – 22.

[97] In this case, it was reasonable for Mr. Bowen to request some delay to accommodate his desire to put the most useful social context evidence before the court. He did not bring a s. 11(b) challenge to the delays occasioned by the EPSR here. But he was detained in custody pending sentencing. If the EPSR had been produced more quickly, Mr. Bowen could have been sentenced sooner, begun serving his sentence sooner, and sooner had access to services, resources and programming that are only available to offenders once they begin serving their sentences. In the circumstances of this case, I am satisfied that the delay occasioned by the EPSR is a factor for consideration in mitigation of sentence: Hartling, at para. 118; Jones, at para. 36; Harrison, at paras. 7, 43. I have considered it as such.

Fit, Fair, and Proportionate Sentence in All the Circumstances of this Case

[98] I have carefully considered all of the aggravating and mitigating factors in this case, with a view to fashioning a sentence that will be adequately denunciatory and deterrent, while also focusing on rehabilitation. The offences are very grave, and Mr. Bowen has moral blameworthiness in respect of them. He has a lengthy criminal record, which includes convictions for related drug offences. He breached a court order prohibiting him from being in possession of firearms. The gravity of the offences and the aggravating factors in this case satisfy me that a sentence at the very lowest end of the range, the two-to-four-year end of the range, would not adequately address the requirements of denunciation and deterrence.

[99] However, Mr. Bowen’s culpability is mitigated by the impacts of anti-Black racism on him. He has a supportive family and community around him. He intends to rehabilitate himself and has shown himself capable of doing so. He has already taken meaningful steps toward his rehabilitation. He entered a guilty plea, accepts responsibility for his offences, has insight into his offending behaviour, and is remorseful. He has endured harsh conditions of incarceration, and was detained in custody for a long time while awaiting an EPSR. For these reasons, a sentence at the very highest end of the range, the six-to-eight-year end of the range, would not be proportionate.

[100] In my view, in addition to credit for the equivalent of 44 months of pre-sentence custody Mr. Bowen has already served, a fit sentence requires a further 12 months in custody. This is required to achieve the requisite denunciatory and generally and specifically deterrent effects of this sentence, even when the meaningful mitigating factors and objective of rehabilitation is considered. I have concluded that a further 12 months’ imprisonment would not be detrimental to Mr. Bowen’s rehabilitation – and may well be beneficial to it. Mr. Bowen has access to psychiatric care and medication within the jail and should soon also be given access to counselling for the first time. These are treatments and services that may be difficult to access in the community, and which I find may well have salutary effects for Mr. Bowen as he continues on his challenging journey to live a law-abiding and prosocial life.

[101] I am further bolstered in my conclusion that an additional period of incarceration is necessary in this case by the requirement that each of the three offences be sentenced consecutively. Each of the offences - unauthorized possession of a loaded restricted firearm, breach of firearms prohibition order, and possession for the purpose of trafficking cocaine - protects distinct legal interests. As a result, each conviction requires a separate punishment: Owusu, at para. 25. Each sentence must be consecutive, not concurrent, to the others. A fit and proportionate sentence for each of these convictions, served consecutively, results in a total global sentence of four years and eight months or 56 months. I have considered whether this total sentence offends the totality principle, and concluded that it does not in all the circumstances of this case.

Sentence Imposed

[102] Mr. Bowen will be sentenced to a global sentence of 56 months, less credit for the equivalent of 44 months of pre-sentence custody, for a total net sentence still to be served of 12 months’ imprisonment.

[103] The sentence will be apportioned as follows:

• Count 4 – possession of a loaded restricted firearm without being the holder of an authorization or licence and registration certificate, contrary to s. 95(1) of the Criminal Code – 2 years or 24 months, time served;
• Count 7 – possession of a firearm while prohibited by order under s. 109(2), contrary to s. 117.01(1) of the Criminal Code – 8 months to be served consecutive to count 4;
• Count 8 – possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act – 2 years or 24 months, of which 20 months is time served, 4 months to be served consecutive to count 7.

[104] In addition to the custodial sentence, the following ancillary orders will issue.

[105] There will be an order for the taking of bodily substances for the DNA databank under s. 487.051(3) of the Code. Mr. Bowen has been convicted of secondary designated offences as defined in s. 487.04 because they are offences that carry a maximum penalty of five years or more and were prosecuted by indictment. The Crown has applied for a DNA order. Mr. Bowen does not oppose the order. I am satisfied that it is in the best interests of the administration of justice for the order to issue given the gravity of the offences, the risk to the public they posed, and the fact that the defence does not oppose the order.

[106] There will also be an order under s. 109(2)(a) and (b) prohibiting Mr. Bowen from possessing any firearm or weapon, ammunition, cross bow, prohibited device, or explosive substance for life.

[107] There will be an order for the forfeiture of the items seized by police.

[108] The victim fine surcharge payable under s. 737(1) is waived pursuant to s. 737(2.1) (a). Mr. Bowen has been detained in custody for a lengthy period of time, and as a result has not been working. He does not have much in the way of legitimate employment experience. When he is released from custody, he will need to secure employment, which may take him some time. I am satisfied that he is unable to pay the victim fine surcharge on account of precarious financial circumstances.

J. R. Presser J.

Released: November 15, 2024

COURT FILE NO.: CR- 23-40000030-0000 DATE: 20241115

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING --and-- DALE BOWEN Defendant REASONS FOR SENTENCE J. R. Presser J. Released: November 15, 2024