ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANQUAH-GABRIEL OWUSU
Rachel Verboom and Chris Kalantzis, Counsel for the Crown
Stephen White and Craig Zeeh, Counsel for the Defence
HEARD: April 6, July 19, December 22, 2023, January 22, 29, and 31 2024
M.A. CODE J.
Reasons for SENTENCE
A. OVERVIEW AND HISTORY OF THE PROCEEDINGS
1The accused Danquah-Gabriel Owusu (hereinafter, Owusu) was tried in this Court, without a jury, on a 10 count Indictment alleging nine gun charges and one drug charge. The seven day trial concluded on January 24, 2023. I reserved judgement for ten days, until February 3, 2023, at which time I released written Reasons finding Owusu guilty on all ten counts. See: R. v. Owusu, 2023 ONSC 863.
2I revoked Owusu’s bail, for reasons explained below, and the sentencing hearing was adjourned for two months until April 6, 2023, to allow sufficient time for the preparation of a Pre-Sentence Report. That report was completed on April 3, 2023 and it was filed with the Court. The defence requested a further adjournment of the sentencing hearing in order to prepare an enhanced report focusing on systemic racism, based on the sentencing principles discussed in R. v. Morris, 2021 ONCA 680. These reports can take a considerable amount of time to prepare and Owusu was now in custody pending sentence. Nevertheless, the defence stressed the potential importance of the report and Owusu waived his s. 11(b) Charter rights. As a result, I adjourned sentencing for a second time until July 19, 2023 and made an Order orally to expedite the report.
3Shortly before the July 19, 2023 return date for the sentencing hearing, counsel were advised that a writer had not yet been assigned to prepare the enhanced Morris report, that it would be “several months” before a writer could be assigned, and that the report itself can take up to six months to prepare. I convened a case management appearance with counsel on July 14, 2023 on Zoom and gave certain directions to counsel, in order to again expedite the matter. On the July 19, 2023 date for the sentencing hearing, a letter was filed from the Director of the Sentencing and Parole Project (the SPP), which is the entity that prepares these reports. The letter stated that Owusu was placed on a “waiting list” for preparation of an enhanced report on April 5, 2023. Counsel was advised “that it would take approximately seven months” to assign a social worker who would write the report and that it would then take “approximately three months to complete the report.” The letter went on to state that there has been significant demand for these reports, since the Morris decision, and there was insufficient funding to meet the demand. Some requests from counsel for enhanced reports were being declined and the SPP was trying to prioritize and expedite the assignment of writers to those accused who are in custody, who have been convicted of serious offences, and who have “other vulnerabilities that Mr. Owusu may not have.” Finally, the letter stated that “We hope to be able to assign Mr. Owusu’s report in a few months’ time” and that “We will do our best to complete the report as quickly as possible”.
4In the above circumstances, Mr. White took the position on the July 19, 2023 date for sentencing that there should be a further lengthy adjournment until the report from the SPP was available. He had discussed the matter with Owusu and there was a further ongoing waiver of s. 11(b) of the Charter. At that point, I made a formal written Order expediting the preparation of the report until no later than December 15, 2023. The sentencing hearing was then rescheduled for December 22, 2023.
5On December 8, 2023, the enhanced report was completed and was filed with the Court. The next development was that Mr. White advised the Court by email on December 21, 2023 that he had tested positive for Covid-19, that he was experiencing “significant symptoms”, and that he was receiving medical care. He requested a further short adjournment. The next day, December 22, 2023, was the scheduled sentencing hearing. A formal adjournment Application was heard in the presence of the accused, who consented to the further adjournment. The sentencing hearing was then set for January 22, 2024. On that date, Mr. White was apparently unwell and did not appear in court. There was a further adjournment to January 29, 2024. During the period of this adjournment, Owusu discharged Mr. White and retained Craig Zeeh as counsel. Mr. Zeeh diligently prepared for the sentencing hearing and ably represented Owusu on January 29, 2024. I reserved judgement for two days at the end of the sentencing hearing. These are my Reasons for Judgement on sentence.
B. FACTS RELATING TO THE OFFENCES
6The evidence heard at trial relating to the ten offences charged is summarized in detail in my written Reasons finding Owusu guilty on all ten counts. I will not repeat that detailed summary and adopt it for purposes of sentencing. See: R. v. Owusu, supra at paras. 9-60. The ten convictions were for possession of two loaded handguns (charged as two s. 95 and two s. 92 offences), two prohibited device offences (relating to oversized magazines in the two handguns), careless use of one of the handguns, an altered serial number offence for one of the handguns, breach of a prior firearms prohibition order, and possession of fentanyl for the purpose of trafficking.
7In brief summary, the evidence disclosed that Owusu was driving his blue Volkswagen Passat in Toronto on the afternoon of March 29, 2020. He was southbound on Dufferin Street, with a female passenger, when the police attempted to pull him over in order to check his license. Owusu fled from the police, driving his car in a reckless manner at a high rate of speed over a considerable distance in a built-up and busy part of Toronto. He went through three stop signs, drove southbound in the northbound lanes of Dufferin Street on two occasions, and went through a red light at King Street West, all while driving at a high rate of speed. At this point, the police abandoned their high speed pursuit as it had become too dangerous. Owusu was then involved in two collisions immediately to the south of the intersection of King Street West and Dufferin. His car finally came to a stop at the scene of the second collision on Temple Avenue. This is a small residential side street that runs west off Dufferin.
8Owusu exited from the driver’s seat of his Volkswagen, leaving his female passenger in the front seat with the air bags deployed. Owusu ran behind the houses on the south side of Temple Avenue and then ran to the west through their backyards. The video surveillance camera at the back of two houses at 9 and 11 Temple Avenue provided good quality images of Owusu fleeing in a pink tracksuit while openly carrying two loaded handguns, one in each hand. One gun was prohibited and the other was restricted. There was another object that caused a bulge in his left pants pocket, which must have been the bag containing 127.75 grams of fentanyl. That bag was subsequently found together with the two handguns. While running and turning the corner behind the two houses at 9 and 11 Temple Avenue, the gun in Owusu’s left hand discharged into the air as he was slipping and falling and trying to steady himself on a table in the backyard. The two semi-detached houses at 9 and 11 Temple, where this firearm discharge occurred, were subsidized housing units where people with mental health and addiction problems resided. It was in the middle of the day but, fortunately, no one was in the backyard. Owusu ran through the adjacent backyards to the west, between two rows of houses that front onto Temple and Thorburn Avenues. There were a number of residents either in these homes or outside in their backyards. As Owusu jumped the backyard fences, he must have put the two loaded handguns in his pants pockets or in the pouch of his tracksuit top, because on one of these occasions one of the handguns fell out. Owusu grabbed the gun as it was falling to the ground. All this happened in the presence of a resident who was standing at his barbecue in the backyard.
9When Owusu reached the backyard of the house at 32 Tyndall Avenue, he hid the two fully loaded handguns, together with the 127.75 gram bag of fentanyl, in the space underneath a metal storage container. Both handguns had oversized magazines. The residence at 32 Tyndall is a three storey Victorian home where Craig Fleming, his wife, and his two young children reside. Mr. Fleming had built a deck, as well as a play structure for his children, in the backyard where the guns and drugs were eventually found by the police. There was also a barbecue in the backyard. Mr. Fleming stored charcoal for the barbecue in the storage bin where the guns and drugs were hidden by Owusu. They were found on the ground in a space beside the storage bin wheels, where they were within reach. After hiding the guns and drugs in this location, Owusu must have jumped over the 32 Tyndall backyard fence and continued his flight to the west.
10About 15 minutes after he hid the guns and drugs in the backyard at 32 Tyndall, the police observed Owusu about three blocks to the north-west jumping over another backyard fence. He must have discarded the pink tracksuit top and torn off the bottom legs of the pink tracksuit pants. He was out of breath, sweating profusely, bleeding from cuts to his hands and knees, and he had burrs attached to his socks. He briefly ran from the police before he surrendered and was arrested.
C. FACTS RELATING TO THE OFFENDER
11Owusu did not testify at trial. As a result, the only information or evidence that I have about his antecedents comes from the post-trial proceedings. On February 3, 2023, after finding him guilty of the ten offences charged, I was advised that he was born on September 26, 1996 and was 26 years old at the time of conviction. He is now 27 years old. He would have been 23 at the time of the present offences on March 29, 2020. I was also advised that Owusu has a serious Youth Court record. The convictions were entered on the following dates:
June 16, 2010, at age 13, fail to comply with a recognizance, 12 months probation;
July 16, 2010, at age 13, armed robbery, time served (about 6 months), 15 months probation, and mandatory s. 51(1) Y.C.J.A. firearms prohibition Order;
August 27, 2013, at age 16, second degree murder, 23 months custodial sentence and 42 months conditional supervision, and mandatory s. 51(1) firearms prohibition Order. According to the enhanced report, this offence occurred in April 2010 when Owusu was 13 years old;
April 24, 2014, at age 17, possession of a loaded handgun (x2) contrary to s. 95, possession of a firearm knowing its possession is unauthorized (x2) contrary to s. 92, and possession of a firearm contrary to a prohibition Order, 12 months custodial sentence and 6 months community supervision.
12I was further advised after finding Owusu guilty on February 3, 2023, that he was serving the community supervision portion of his above Youth Court sentences at the time of his arrest for the present offences on March 29, 2020 (the 2013 and 2014 Youth Court sentences had merged, resulting in a total sentence of three years in custody and four years under community supervision). As a result of Owusu’s arrest for the present offences, the community supervision aspect of these sentences was revoked by the Provincial Director on April 1, 2020. This led to proceedings in this Court before Durno J. On April 21, 2020, Durno J. held that Owusu would serve the remainder of his sentences in custody until they expired. On October 31, 2021, the previous Youth Court sentences expired. A Justice of the Peace had granted Owusu bail on the present firearms and drug charges. As a result, he had been out of custody and on bail for about 15 months at the time when he was found guilty on February 3, 2023. After learning the above history, as well as some information about Owusu’s present circumstances, I revoked his bail. He has been in custody since he was found guilty on February 3, 2023 and so he is entitled to credit for just under 12 months of pre-sentence custody.
13Owusu’s antecedents, were first set out in the Pre-Sentence Report (PSR) dated April 3, 2023, as summarized in the following paragraphs. He was born in Toronto and raised primarily by his mother. His parents separated when Owusu was four years old. His father returned to the parents’ previous home in Ghana for a number of years and Owusu had no further contact with his father until he was 11 years old. Owusu is the youngest of four siblings. He has two older brothers and an older sister. The family lived for an unspecified period of time in the Jane and Trethewey neighbourhood of north-west Toronto where there were many negative influences, including gun violence. Owusu’s oldest brother was said to have been a victim of gun violence. In 2007, when Owusu was age 10 or 11, the family moved to Brampton because Owusu’s mother wanted to remove her children from the environment where they were living. According to the PSR, Owusu is very close to his mother and to his three older siblings. They often attended church while growing up and there was no physical or emotional abuse and no major problems such as substance abuse or mental health issues. Owusu also developed a good relationship with his father, once they reconnected in 2018, according to the PSR.
14Owusu attended school and completed grade eight before he became involved in the criminal justice system. While he was in custody, serving the various sentences summarized above, he completed high school. He also took an HVAC college course that he has not yet completed. He has a limited employment history, having worked mainly as a personal trainer at three or four commercial gyms. He also worked for his mother’s nursing home company and for his brother’s cleaning company during the time while he was on bail on the present charges. According to the PSR, Owusu does not use drugs of any kind. He drinks alcohol moderately on social occasions. He is not associated with any street gangs.
15Owusu’s parents explained his criminal activities to the author of the PSR as being due to negative peer associations and due to having been exposed to gun violence at a young age. Both parents believed that Owusu had changed and that he had dissociated himself from negative peers since his arrest on the present charges. His mother described Owusu as “a good son” and his father described Owusu as “smart and pleasant”. Owusu described himself as “driven, faithful, loyal, and caring”. The author of the PSR described him as “polite, respectful, and engaged” during their interview.
16The enhanced pre-sentence report was prepared by Michelle Richards. She has two degrees as well as work experience in social work. The report is long and detailed. It summarizes the author’s thorough interviews with Owusu’s family members and friends. It includes an account of the marriage breakdown between Owusu’s parents, when he was age three or four. There are conflicting accounts about these events, including alleged infidelity and physical abuse by the father and alleged financial mismanagement and criminal mischief by the mother. There appears to be a considerable amount of dishonesty in the various conflicting accounts about this marital breakdown during Owusu’s early childhood.
17There appear to be reliable accounts in the enhanced report about Owusu’s upbringing and the influences within the community and within his own family, that appear to have led him into criminal activities during his adolescent years. It is stated that he was “spoiled” by his mother. It is also stated that he was affected by the breakdown of his parents’ marriage and by the ensuing instability and economic challenges that were faced by the family. It also appears that his older siblings had a role in introducing Owusu to a criminal lifestyle at a young age. Finally, it is stated that the family lived in the Jane and Finch and Jane and Trethewey neighbourhoods for a period of three years and that this had a particularly negative effect because the children were surrounded by criminal activities. When Owusu left home at age 14, he went to live with a 30 year old man and “they made money selling drugs for over a year.” This led to a dispute about the money, which then led to Owusu’s murder conviction. When Owusu was released from serving his Youth Court sentence in 2017, at age 21, his father offered him a job. However, Owusu “decided to do his own thing, instead of working … [as he] was used to earning money from the streets to support his lifestyle”, according to his father’s account (which Owusu agreed was true). The author of the enhanced report concluded as follows:
Mr. Owusu’s social history makes it clear that his family system lacked the structure, stability and support that could have disrupted his youthful entry in the criminal system. However, Mr. Owusu is facing sentencing for decisions that he made as an adult. He has expressed regret accordingly, even though he has denied responsibility for the noted offences. Mr. Owusu expressed that this experience marks his final interaction with the criminal system. It is difficult if not impossible to ascertain his sincerity; what he chooses to do after his sentence is served will confirm his desire for change. [Emphasis added].
18Mr. Zeeh filed six character reference letters on behalf of Owusu, from five of his friends and his older brother. The letters spoke positively about certain aspects of Owusu’s character and expressed the hope and belief that he had learned from his mistakes and that he was ready to change. In addition, Mr. Zeeh filed records from the Toronto East Detention Centre concerning the past year while Owusu has been in custody. This period post-dated any of the pandemic protocols that used to be in place at the jail. However, there were a number of lockdown periods, apparently due to staff shortages, during which “the institution generally runs all programs (showers, visits, medical, phone calls, etc.) but under a more restrictive protocol.” More importantly, the records stated that Owusu had completed a number of programs with the social worker at the East Detention Centre.
19Mr. Zeeh and the Crown agreed that Owusu was on bail for about 15 months, prior to his present convictions. There were no breaches of his terms of bail. For the first eight months, he was under strict “house arrest” and could only leave home in the company of his surety (his mother). This term effectively prevented employment. For the last seven months, the “house arrest” term was loosened to allow employment. The parties agree that some Downes credit should be given, in these circumstances, and they submit that about four months credit would be appropriate.
20At the end of the sentencing hearing, Owusu made a “dock statement”. He apologized for his actions on March 29, 2020, admitting that he was in possession of the firearms and drugs and that he fled in order to evade arrest. He stated that he took “full responsibility” and was grateful that no one was hurt. He explained that his life had many “trials and tribulations” from a young age, which made him “susceptible” to the offences that he committed. He stated that he is now “mature and humble” and described himself as a “reformed God-fearing young man” who does not want “to throw my life away”. He expressed a desire to live a changed life where he would be an “example” to others by embarking on new and ambitious law-abiding careers. He asked the Court to impose a sentence that would allow him “to make right strides towards this future”.
D. POSITIONS OF THE PARTIES
21The Crown submits that the appropriate total sentence is 18 years. The Crown arrives at this position by first submitting that 11 years would be the appropriate total sentence for the firearms offences (starting with nine years for the two s. 95 offences, followed by one year consecutive for the s. 117.01 breach of a prohibition order, and one year consecutive for the s. 86 careless use of a firearm). This 11 year sentence for the firearms offences would be followed by 10 to 12 years consecutive for the fentanyl trafficking offence. The Crown submits that this 21 to 23 year total sentence should be adjusted downwards to 18 years, in order to comply with the totality principle. Credit for Owusu’s approximately 12 months of pre-sentence custody should then be deducted, as well as approximately four months Downes credit for his “house arrest” terms of bail. The Crown seeks three ancillary orders, namely, DNA, s. 109 for life, and forfeiture of the seized contraband.
22The defence submits that the appropriate total sentence is ten years, less credit for Owusu’s 12 months of pre-sentence custody and four months Downes credit for his “house arrest” terms of bail. Mr. Zeeh submitted that the ten year sentence should be imposed for the firearms offences, beginning with a sentence of eight years for the s. 95 offences, one year consecutive for the s. 117.01 breach of a prohibition order, and one year consecutive for the s. 86 careless use of a firearm. He submitted that the constructive fentanyl trafficking offence should result in a concurrent sentence in the eight to ten year range. This global sentence of ten years for all offences took totality into consideration. The three ancillary orders are not opposed.
E. ANALYSIS
23The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code and I am bound by those principles. The most fundamental principle of sentencing is “proportionality”, as set out in s. 718.1, meaning that the sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
24Owusu has been found guilty of ten separate offences. The first task, before sentencing him, is to determine which of these ten counts are subject to the rule against multiple convictions and which remaining counts should receive concurrent sentences. In my view, the findings of guilt for two s. 92(1) offences should be stayed pursuant to the rule against multiple convictions. These s. 92(1) offences involve substantially the same factual and legal elements that are already covered by the more serious s. 95 offences, and they have all been proven by substantially the same evidence. See: R. v. Kienapple (1975), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 1986 CanLII 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.). The two findings of guilt for s. 92(2) possession of a “prohibited device” (relating to the oversized magazines), the finding of guilt for s. 86(1) careless use or carrying or handling of a firearm, and the s. 108(1) finding of guilt for knowingly possessing a firearm with an altered or removed serial number, all require proof of distinct and additional factual and legal elements. Accordingly, convictions should be entered for these four offences in addition to the s. 95 offences. However, they can all be treated as aggravating circumstances when sentencing Owusu for the s. 95 firearms offences. These four additional convictions all relate to substantially the same event or transaction as the s. 95 offences and their sentences should therefore be concurrent to the s. 95 sentences. See: R. v. Chisholm, 1965 CanLII 211 (ON CA), [1965] 4 C.C.C. 289 (Ont. C.A.); R. v. W.Q. (2006), 2006 CanLII 21035 (ON CA), 210 C.C.C. (3d) 398 at paras. 11-15 (Ont. C.A.); R. v. Maroti (2010), 2010 MBCA 54, 256 C.C.C. (3d) 332 at paras. 12-25 (Man. C.A.); R. v. Friesen (2020), 2020 SCC 9, 391 C.C.C. (3d) 309 at paras. 155-156 (S.C.C.); and s. 718.3(4) of the Criminal Code.
25As a result of the above application of the Kienapple and Chisholm lines of authority and their rules relating to multiple convictions and concurrent sentences, Owusu should receive consecutive sentences for only the following three categories of offences: first, the two s. 95 firearms offences, which carry a maximum sentence of ten years; second, the s. 117.01 breach of a firearms prohibition order, which carries a maximum sentence of ten years; and third, the s. 5(2) Controlled Drugs and Substances Act offence of possessing fentanyl for the purpose of trafficking, which carries a maximum sentence of life imprisonment. I am satisfied that the offence of breaching a firearms prohibition Order protects legal interests that are separate and distinct from the offence of possessing a loaded prohibited or restricted firearm. It therefore requires separate consecutive punishment in order to give real meaning to the enforcement of court orders. See: R. v. Manning, [2007] O.J. No. 1205 (S.C.J.); R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (S.C.J.), aff’d 2016 ONCA 598; R. v. Carrol, 2014 ONSC 2063; R. v. Graham, 2018 ONSC 6817 at para. 41, aff’d 2020 ONCA 692. Similarly, the offence of possession of fentanyl for the purpose of trafficking requires a separate consecutive sentence from the s. 95 firearms offences because it protects separate public policy interests which require separate punishment. See: R. v. Mark, [2018] O.J. No. 270 at para. 27 (S.C.J.); R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257 (S.C.J.), aff’d (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 at paras. 128-9 (Ont. C.A.); R. v. Graham, supra at para. 43, aff’d R. v. Graham, supra. For these reasons, and based on these authorities, I cannot accept the defence position that the firearms sentences and the constructive drug trafficking sentence should be concurrent.
26Beginning with the s. 95 firearms offences, there are a number of aggravating circumstances as follows:
First, Owusu is a recidivist as he was previously convicted of two counts of s. 95 firearms possession in Youth Court in 2014. Owusu’s previous convictions and sentence for this offence clearly did not deter him. In this regard, his recidivism in the present case was characterized by possession of not just one but two loaded prohibited and restricted handguns, which increases the danger to the public and further aggravates the offence;
Second, Owusu was carrying the two loaded handguns in a number of public places. Furthermore, it was in the middle of the day in a densely populated neighbourhood of Toronto where many residents were present in their homes or backyards while Owusu fled with the two guns. This dangerous public possession of loaded handguns in an urban area makes the case more serious than many other s. 95 cases where loaded handguns are hidden in the accused’s own car or home;
Third, Owusu repeatedly carried and stored the loaded firearms in a careless manner. In addition, his manner of carrying and storing the loaded firearms caused danger to children and to other vulnerable members of the community. In particular, he brandished the two guns when he was running away from the collision on Temple Avenue, such that when he lost his balance in the backyard of a home for a particularly vulnerable class of residents, one of the guns discharged. Later during his flight, one of the guns fell out of his pocket and he had to grab it as he was jumping over the backyard fence of another resident, who was standing nearby while cooking at his barbecue. Finally, Owusu stored the two loaded handguns in the backyard of yet another residence where two young children lived and played. See R. v. Mansingh, 2017 ONCA 68 at para. 24. This ongoing course of carelessly (indeed, recklessly) carrying and storing the two guns amounts to a separate delict, as explained above, but I will treat it as an aggravating factor in relation to the s. 95 offences, and will not impose a consecutive sentence for the s. 86 offence;
Fourth, both of the fully loaded handguns had oversized magazines and one of them had the serial number removed. Once again, these three separate delicts will be treated as aggravating factors in relation to the s. 95 offences, and consecutive sentences will not be imposed;
Fifth, Owusu has previously been convicted on two separate occasions for serious crimes of violence, namely, armed robbery in 2010 and second degree murder in 2013. This makes his possession of two fully loaded handguns particularly dangerous because he is a man who has shown that he is capable of serious acts of violence. In this regard, Owusu was clearly in possession of the two loaded handguns for an unlawful purpose, which distinguishes the case from less serious regulatory or licensing forms of s. 95 offences;
Sixth, Owusu was serving the remanet of his last Youth Court merged sentences while under community supervision, at the time of the present s. 95 offences. His brazen disregard for the constraints of an existing sentence emphasizes the need to now impose a sentence that achieves both specific deterrence and protection of the public; and
Seventh and last, the conduct that immediately preceded and accompanied the present s. 95 offences involved driving in a reckless and dangerous manner in a busy urban area of Toronto. Owusu fled from the police in his car, driving at high rates of speed, going through three stop signs and one red light, twice driving into the lane of oncoming traffic, and eventually causing two collisions. This manner of driving was undoubtedly motivated by the fact that Owusu was unlawfully carrying two loaded handguns with oversized magazines (as well as a bag of fentanyl) in his car, while still serving the remanet of two Youth Court sentences. This dangerous driving is an aggravating collateral consequence of unlawful possession of restricted and prohibited handguns. This final aggravating circumstance, together with the other aggravating circumstances set out above, infers that Owusu had little or no regard for the safety of the public. In these circumstances, protection of the public is an important sentencing objective.
27On the other hand, the mitigating circumstances in the case (which apply not only to the s. 95 offences but to all of the other offences) include the following:
First, Owusu was still relatively young when he committed the present offences in March 2020, as he was 23 years old. However, he is described by a close friend in the enhanced report as “mature for his age, he grew up faster than everyone else, if you saw him at 12, you would think he was 18.” In addition, he has a very serious Youth Court record involving convictions for armed robbery, murder, and possession of loaded handguns (x2). According to the enhanced report, Owusu’s criminal activities began at age 12. His convictions began at age 13 according to his Youth Court record. Based on the information in the enhanced report, Owusu appears to have been involved in the drug trade since age 14, when he began working for an older 30 year old man. In other words, he had been living a criminal lifestyle for about 10 years at the time of the present offences. Nevertheless, these offences are his first adult convictions and they will result in his first penitentiary sentences;
Second, Owusu has the ongoing support of his family and of the friends who wrote character reference letters on his behalf. Based on the thorough and detailed accounts set out in the enhanced report, he has a complex relationship with the various members of his family. The author of the report states that there is “ongoing discord within the family dynamics.” Nevertheless, Owusu appears to be relatively close to his family and his friends and they should be able to provide him with assistance and support when he completes his sentence;
Third, Owusu came from a family that experienced marital breakdown when Owusu was very young. More significantly, he was exposed to drug crime and gun violence as a young boy, especially during the three years when he was living and growing up in the Jane and Trethewey and/or Jane and Finch neighbourhoods of north-west Toronto. In this regard, his oldest brother was apparently shot and injured and it was his own siblings who apparently introduced him to criminal activity. His mother moved the family to Brampton in 2007, when Owusu would have been 10 or 11 years old, in order to get away from the negative influences of these neighbourhoods. The impact on Owusu of a negative criminal social context (and any associated racism), reduces his moral culpability to some degree. At the same time, it must be noted that Owusu’s parents were both successful in their work, that Owusu was apparently “spoiled” by his mother, that he was not the object of his father’s strict and perhaps abusive approach to discipline, that he does not use drugs, that he does not abuse alcohol, and that he does not suffer from any mental illness or disability.
28In my view, all three of the mitigating circumstances summarized above have certain internal weaknesses that have been noted. There is also no clear or convincing evidence of Owusu’s rehabilitative potential, in the sense of any significant steps actually taken to change the trajectory of his life. The most that can be said is that he worked for about seven months in two family businesses while he was on bail, he did not breach his terms of bail, and he has completed a number of programs with the social worker at the East Detention Centre while he has been in custody. The experienced author of the enhanced report conducted many detailed interviews with Owusu, his family members, and his friends. She concluded that “it is difficult if not impossible to ascertain [Owusu’s] sincerity” concerning his stated desire to leave the criminal lifestyle. It is equally if not more difficult for me, to assess his sincerity, after listening only to his “dock statement”. In any event, the above three mitigating circumstances are heavily outweighed by the seven serious aggravating circumstances that are also summarized above. In this regard, Owusu’s reduced moral culpability due to the social context in which he grew up when he was young must be tempered by the need to protect the public, given his flagrant and dangerous recidivism and given the gravity of the offences. See: R. v. Parranto and R. v. Felix (2021), 2021 SCC 46, 411 C.C.C. (3d) 1 at para. 80, per Brown and Martin JJ. for the majority (S.C.C.); R. v. Abdulle (2023), 2023 ONCA 32, 166 O.R. (3d) 307 at paras. 32-40 (C.A.). As a result, the sentence to be imposed in this case for the two s. 95 offences should be situated towards the upper end of the appropriate range, given that it is such an aggravated instance of possessing loaded restricted and prohibited firearms.
29Turning then to the appropriate range of sentence for s. 95 offences, I recently analysed the leading authorities in this province relating to this issue in R. v. Graham, supra at paras. 36-42, a decision that was upheld on appeal. I simply adopt and repeat what was stated in that case as follows:
In relation to the s.95 firearms offence, it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition). See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Nur (2013), 2013 ONCA 677, 303 C.C.C. (3d) 474 (Ont. C.A.) at para 206, aff’d (2015), 2015 SCC 15, 322 C.C.C. (3d) 149 (S.C.C.) at para 120; R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 (Ont. C.A.) at paras 26-32. In addition, there is a strong need for specific deterrence in this case, given Graham’s persistent recidivism.
There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence in these s.95 cases. In R. v. Carrol, 2014 ONSC 2063 (Ont. S.J.C.), Molloy J. analyzed the effect of Nur and Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalled that Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held in R. v. Carrol, supra that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s.95 case involving well situated first offenders.
More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall (2015), 2015 ONCA 692, 340 O.A.C. 201 (Ont. C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, the court upheld a three and a half-year sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whom where young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Both accused were involved in the drug trade and were carrying the guns in association with drug crime. Also see: R. v. Mansingh, 2017 ONCA 68 (Ont. C.A.); R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257 (Ont. S.C.J.), aff’d (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.).
In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles (2013), 2013 ONCA 681, 303 C.C.C. (3d) 352 (Ont. C.A.) and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94, 321 C.C.C. (3d) 474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. Grant, [2005] O.J. No. 4599 (Ont. S.C.J.); R. v. Alexander, 2012 ONSC 6117, [2012] O.J. No. 5087 (Ont. S.C.J.); R. v. Dunkley, [2014] O.J. No. 3062 (Ont. S.C.J.).
The defence relies heavily on Hector, the case at the bottom end of the above range, where MacDonnell J. imposed a total sentence of six years (five years for the s.95 offence and one year consecutive for the s.117.01 breaches). However, the one significant circumstance in Hector, that moved the case towards the bottom end of the range, was that the loaded handgun was found hidden in an air conditioning unit inside an apartment. It was not being carried about in public in association with unlawful activity, as in the present case. As noted previously, the mix of aggravating and mitigating factors in the present case situate it much closer to the upper end of the appropriate range. That upper end of the range supports an eight to ten year total sentence for s.95 recidivists who breach s.109 orders.
As explained above, I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning. See: R. v. Manning, [2007] O.J. No. 1205 (Ont. S.C.J.); R. v. Ellis, 2013 ONSC 3092, [2013] O.J. No. 2409 (Ont. S.C.J.) aff’d, R. v. Ellis, 2016 ONCA 598 (Ont. C.A.); R. v. Carrol, supra.
The five to six year total range of sentence submitted by the defence for all six offences in this case, including the s.95 offence and the breaches of s.109, is at the top end of the range for first s.95 offences and at the bottom end of the range for second s.95 offences. It depends on mitigating circumstances that have not been proved. It also fails to reflect the significant aggravating circumstances in this case and the number of distinct offences committed in this case. It would not be an appropriate sentence. In my view, eight years for the s.95 offence and one year consecutive for the s.109 breaches is the appropriate sentence for these offences in this particular case.
30The Crown referred me to three additional cases, decided shortly before and after Graham, which similarly indicate that six to nine years imprisonment is generally the appropriate range for s. 95 recidivists. In R. v. Barton, 2017 ONSC 4039, Akhtar J. sentenced the accused to nine years for a s. 95 offence and one year consecutive for violating a firearms prohibition Order. The accused was 32 years old, he had previously been convicted in 2005 and 2008 of the same s. 95 offence, and he was an admitted drug dealer. In R. v. David, 2019 ONSC 2758, Monahan J. (as he then was) sentenced the accused to eight years (six years for a s. 95 offence and two years consecutive for violating prior prohibition Orders). The accused was 22 years old and he had prior convictions for discharging a firearm, robbery, assaults with weapons, and assaults causing bodily harm. In R. v. Owusu, 2019 ONCA 712, the Court of Appeal upheld Croll J.’s imposition of a six year sentence for a s. 95 offence. The accused was “only 19 years old” and had previously been convicted of a s. 95 offence in Youth Court. It was noted that he had “made efforts to further his education while in custody.” In light of the above authorities, Mr. Zeeh conceded on behalf of the defence that six to nine years is a normal sentence for s. 95 recidivists.
31In my view, the two s. 95 offences in the present case are amongst the most aggravated and they justify a sentence towards the top end of the range. I am satisfied that a sentence of eight years on each of the two s. 95 offences, concurrent to each other, would be appropriate. A sentence of one year consecutive for the s. 117.01 breach of the prior firearms prohibition Order would also be appropriate. In other words, a total of nine years imprisonment for the three s. 95 and s. 117.01 firearms offences would be the appropriate sentence, if Owusu was being sentenced for these offences alone. However, Owusu has also been convicted of a serious drug offence and so consideration must be given to the totality principle. I will address that issue after I have considered the appropriate sentence for Owusu’s possession of 127.75 grams of fentanyl for the purpose of trafficking.
32Turning to the appropriate sentence in this case for constructive fentanyl trafficking, the mitigating circumstances are the same three summarized above, namely: Owusu’s relatively young age; his family support; and the social context of his early upbringing in the Jane and Trethewey neighbourhood of Toronto. In my view, the aggravating circumstances are as follows:
First, the over four and a half ounce quantity of fentanyl in this case is significant. At trial, it was agreed that the value of these drugs was between $13,000 (if sold at the ounce level) and $27,000 (if sold at the gram level). The quantity, value, and manner of packaging the drugs (not in small “dime” baggies) situates Owusu somewhere in the “mid-level” of the drug trafficking hierarchy. He is clearly not a street level retail trafficker, dealing in small milligram or gram amounts of fentanyl. He appears to be a distributor of ounce or multi-ounce quantities. He also appears to have some degree of access to the upper echelons of the drug trade, in order to obtain this substantial quantity of fentanyl. In this regard, it appears from the enhanced pre-sentence report that Owusu has been involved in the drug trade with older confederates since a very young age;
Second, Owusu is not an addict trafficker. Indeed, he does not use any drugs. The present offence must have been part of an entirely commercial business where financial profit was the sole motive;
Third, fentanyl is an extremely dangerous addictive drug which is known to cause death due to overdoses. In other words, Owusu was engaged in a lucrative commercial business that exploits addicts and that is well known to cause misery and death;
Fourth, mere contact with this quantity of fentanyl is extremely dangerous. In this context, Owusu left the bag of fentanyl in a backyard where two young children and their parents lived, where there was a barbecue and a play structure and a deck, and where the bag of fentanyl was placed in a location that was within reach of the residents. This conduct put the safety of entirely innocent third parties at risk;
Fifth, Owusu was serving the remanet of his last Youth Court sentences when he committed the present drug trafficking offence. As with the firearms offences, Owusu’s brazen re-offending while still serving an earlier sentence for serious offences is highly aggravating and requires a strong measure of specific deterrence. Instead of complying with the terms of his community supervision sentence, and instead of taking up lawful employment with his father, he immediately returned to the illegal drug trade as his means of livelihood; and
Sixth, the dangerous driving that immediately preceded and accompanied Owusu’s offending conduct was undoubtedly caused or motivated by the fact that he was in possession of a relatively large amount of fentanyl in the car (as well as two loaded handguns). As noted above, this dangerous driving is a collateral consequence of the serious unlawful drug trade activity that was in progress at the time, namely, constructive fentanyl trafficking at a relatively high level.
33Each of the three mitigating circumstances relating to the drug trafficking offence have the same internal weaknesses, as they do in relation to the firearms offences. In any event, they are heavily outweighed by the six serious aggravating circumstances summarized above. The relatively large quantity of fentanyl in this case carried a significant risk of death to many vulnerable addicts and drug users who were being exploited for the sole purpose of financial profit. In my view, the sentence for the drug offence in this case should be situated towards the upper end of the appropriate range.
34As with heroin and cocaine trafficking, deterrence and denunciation are the primary sentencing objectives in cases of fentanyl trafficking. Young first offenders with good rehabilitative prospects receive significant penitentiary sentences in these cases, even after pleading guilty and after assisting the police and the Crown by testifying against their co-accused. See: R. v. Loor, 2017 ONCA 696; R. v. Disher and Weaver (2020), 2021 ONSC 2370, 396 C.C.C. (3d) 419 (Ont. C.A.); R. v. Baks, 2015 ONCA 560; R. v. Olvedi, 2021 ONCA 518 at paras. 35-60. The policy reasons for taking this strict deterrent and denunciatory approach to sentencing in fentanyl trafficking cases is the same as in cocaine and heroin trafficking cases, namely, the extraordinary harm associated with these drugs, the collateral crime associated with them (including crimes of violence), and the premise that rationally premediated commercial crimes like drug trafficking by a non-addict are particularly amenable to deterrence. See: R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129 at paras. 103-106 (Ont. C.A.); R. v. C.N.H. (2002), 2002 CanLII 7751 (ON CA), 170 C.C.C. (3d) 253 at paras. 35-6 (Ont. C.A.); R. v. Parranto and R. v. Felix, supra at paras. 70, 73, 87-101; R. v. Graham, supra at paras. 44-6, aff’d R. v. Graham, supra.
35The case law has not yet established easily applicable ranges of sentence for fentanyl trafficking, partly because it is still a relatively recent phenomenon and partly because fentanyl is sold in many different forms (patches, pills, pure powder, and adulterated powder). Nevertheless, I found the following three cases to be useful, when trying to situate an appropriate sentence within the range for Owusu, and while respecting the principle of parity set out in s. 718.2(b):
In R. v. Weaver, 2020 ONCA 710, the accused was 22 years old, was substantially a first offender (although she was on probation at the time of the offences as a result of a prior conditional discharge), she was Métis, her parents and grandparents abused alcohol, and there was violence at home. She struggled with drug addiction and had recently entered a treatment program by the time of sentencing. She had a positive PSR and she accepted responsibility and expressed remorse for her role in the offences. She was an aider or abettor who assisted her boyfriend, the co-accused Disher (who was the “main actor in the business”), in constructive street-level trafficking involving a total of 43.7 grams of “mixed powder substances”, including fentanyl. The Court of Appeal imposed a four year sentence;
In R. v. Loor, 2017 ONCA 696, the accused was a 39 year old recidivist with a prior conviction for trafficking. He had strong family support and young children. He was a “low-level member of a small drug trafficking ring” that was selling fentanyl patches obtained from pharmacies with forged prescriptions. The accused Loor obtained 45 patches, using a prescription forged by the “higher-ups in the trafficking ring”. These patches were worth “between $18,000 and $20,000 on the street”. Loor did “not profit much from his trafficking”. The Court of Appeal upheld a sentence of six years;
In R. v. Disher, 2020 ONCA 710, the accused was the “principal actor” in constructive trafficking involving a total of 43.7 grams of “mixed powder substances” that included fentanyl, as summarized above in relation to his girlfriend and co-accused Weaver. Disher was on bail at the time of the offences. He pleaded guilty. He had a “serious criminal record” that included “numerous drug trafficking convictions” but he had never received a penitentiary sentence. He had a “long-standing addiction to crystal methamphetamine” but he had “some rehabilitative potential” as a result of taking various programs while in custody awaiting trial. It was held that these programs “may assist with his drug addiction” and that the programs “should assist him in finding and maintaining employment on release”. Disher had been subjected to “repeated physical and emotional abuse by his stepfather that continued until he was an adult”. The 43.7 gram total of “mixed powder substances” that was seized by the police was found in a number of smaller “packets” and “baggies”, some of which weighed less than a gram, which led the trial judge to conclude that Disher was a “street-level drug trafficker”. After a thorough review of the relevant sentencing case law, as it stood in November 2020, the Court of Appeal imposed a sentence of eight years.
36The above three decisions from the Court of Appeal are all thoroughly written and researched, they are reserved judgements, and they are relatively recent. In my view, all three of these cases – Weaver, Loor, and Disher – involved less serious offences and/or more mitigated offenders than the case at bar. In particular, they all involved smaller quantities of fentanyl. In addition, Weaver and Disher were street-level addict traffickers, apparently dealing in no more than gram amounts. Loor was a “low-level member of a small drug trafficking ring” who did “not profit much” from trafficking in pharmaceutical grade prescription patches. In all three cases, there were some mitigating circumstances that were at least as strong or stronger than in the case at bar. I am satisfied that Owusu must receive a sentence that is greater than the four years, six years, and eight years imposed in Weaver, Loor, and Disher, in order to respect the principle of parity.
37In addition, in its more recent decision in R. v. Lynch, 2022 ONCA 109 at paras. 5, 14-15, and 24-26, the Court of Appeal held that the appropriate range for “mid-level traffickers” in cocaine is five to eight years, that fentanyl is “a more dangerous drug than is cocaine”, and that “long or longer” sentences should be imposed in fentanyl cases. In the present case, Owusu was in possession of 127.74 grams of fentanyl, more than three times as much as the 41.37 grams of fentanyl that Lynch possessed. I am satisfied, based on the reasoning in Lynch, that Owusu is a “mid-level trafficker” in fentanyl and that the appropriate range is somewhat greater than five to eight years. Also see R. v. Olvedi, supra at para. 56, where the Court held per Trotter J.A., that “due to the dangerous nature of fentanyl, sentences should be longer than those involving cocaine or heroin.” Based on these authorities, Mr. Zeeh submitted that the appropriate range for a “mid-level” fentanyl trafficker like Owusu would be between 6/7 years and 9/10 years. Mr. Zeeh also conceded that Owusu is not at the bottom end of the range.
38The above suggested range emerging from Lynch and Olvedi is arguably or generally consistent with the Supreme Court’s relatively recent decision in R. v. Parranto and R. v. Felix, supra at para. 68, where the majority judgement of Brown and Martin JJ. (on behalf of four members of the Court) set out a potential range of sentence for “wholesale commercial level” fentanyl trafficking. That potential range appears to focus on the quantity of fentanyl, given that the amount being trafficked is one measure of the extent of harm or danger to the public. Brown and Martin JJ. stated the following:
A more accurate range based on a review of reported case law nationally would be in the region of 8 to 15 years. For example, eight‑year sentences were imposed in Smith (2019) (1834 pills, as part of an 11‑year sentence), as well as R. v. Leach, 2019 BCCA 451 (11,727 pills, as part of a 16‑year sentence); R. v. Sinclair, 2016 ONCA 683; R. v. Solano‑Santana, 2018 ONSC 3345 (5000 pills); R. v. White, 2020 NSCA 33, 387 C.C.C. (3d) 106 (2086 pills); and R. v. Borris, 2017 NBQB 253 (4200 pills). Other sentences imposed include: an 8‑year and two‑month sentence in R. v. Sidhu, C.J. Ontario, No. 17‑821, June 16, 2017, aff’d 2019 ONCA 880, in which the offender trafficked 89 g of fentanyl and other drugs soon after being released on parole; a 10‑year sentence in R. v. Petrowski, 2020 MBCA 78, 393 C.C.C. (3d) 102, for trafficking 51 g fentanyl where the offender used a co‑accused to insulate himself from detection; 11 years for trafficking 204.5 g of a fentanyl blend in R. v. Vezina, 2017 ONCJ 775; 13 years for trafficking 232 g fentanyl and large quantities of other drugs as part of a sophisticated drug trafficking operation in R. v. Mai, [2017] O.J. No. 7248 (QL) (Ont. S.C.J.); and 15 years for a profit‑motivated offender who was the directing mind of “a large‑scale drug trafficking operation involving an enormous amount of fentanyl” in R. v. Fuller, 2019 ONCJ 643 (the offender possessed about 3 kg of fentanyl in the course of the conspiracy). [Emphasis added].
39I appreciate that the present case does not involve “wholesale” level trafficking, like Parranto and Felix. Nevertheless, the above summary of case law in the majority judgement in Parranto and Felix, appears to provide considerable authority for sentences over eight years in cases like the present one, when focusing primarily on the quantity of fentanyl as a measure of harm and relying on cases like Sidhu, Petrowski, and Vezina. The concurring judgement of Moldaver J. (on behalf of three members of the Court) would appear to support even longer sentences. Furthermore, in the present case there are a number of significant aggravating factors, in addition to the 127 gram quantity of fentanyl. Based on the authorities cited in Parranto and Felix, and other trial level cases, the Crown submitted that 8 to 12 years is the range for cases like the present one.
40In conclusion, I am satisfied that the particular mix of aggravating and mitigating circumstances in this case justifies a sentence of nine years, if Owusu was being sentenced for constructive fentanyl trafficking on its own. Once again, this sentence needs to be reconsidered in light of the totality principle, given that the drug trafficking sentence should be consecutive to the three firearms sentences.
41The combined total sentence of nine years for the three firearms offences and nine years consecutive for the fentanyl trafficking offence would result in a sentence of 18 years imprisonment. In my view, this would offend the s. 718.2(c) totality principle as it is “unduly long or harsh” for an offender of Owusu’s age with his other mitigating circumstances. I would adjust the total sentence downwards to 15 years, in order to comply with the totality principle. See: R. v. C.A.M. (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 at paras. 41-2 (S.C.C.). A Summers credit of one and a half years should be deducted from the sentence in light of the approximately 12 months pre-trial custody that Owusu has served. In addition, a Downes credit of four months should be deducted.
F. CONCLUSION
42For all the reasons set out above, Owusu is sentenced as follows:
The two s. 92(1) offences charged in Counts 1 and 2 are stayed pursuant to the rule against multiple convictions;
On the two s. 95 offences charged in Counts 3 and 4, relating to the two loaded handguns, Owusu is sentenced to eight years imprisonment concurrent on each count, which is reduced to seven years concurrent on each count in light of the totality principle;
The next four counts in the Indictment (Counts 5-8) all relate to the same two firearms, namely, possession of a prohibited device (x2), careless use, and altered serial number offences. Owusu is sentenced to six months concurrent on each count;
On the Count 9 offence, charging s. 117.01 breach of a prior firearms prohibition Order, Owusu is sentenced to one year imprisonment consecutive; and
On the Count 10 offence, charging possession of fentanyl for the purpose of trafficking, Owusu is sentenced to nine years imprisonment consecutive which is reduced to seven years in light of the totality principle. The one and a half years credit for Owusu’s pre-trial custody should be applied to this final consecutive sentence, further reducing it to five and half years. Finally, the four months Downes credit should be deducted from this sentence, further reducing it to five years and two months.
43In the result, the total sentence to be served from today’s date is 13 years and two months imprisonment. The three ancillary orders sought by the Crown are all granted.
M.A. Code J.
Released: January 31, 2024
