Reasons for Sentence

Court File No.: CR-24-90000614
Date: 2025-05-05
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Evan Mitchell

Heard: April 1, 2025

Counsel:
Venus Sayed, for the Crown
Gabriel Gross-Stein, for the Defendant

Judge: Nishikawa

Overview and Background

[1] On December 5, 2024, after a blended Charter application and trial by judge-alone, Mr. Mitchell was found guilty of the following offences:

(i) Unlawful possession of a loaded prohibited firearm, a Glock handgun, without being the holder of an authorization permitting such possession, contrary to s. 95(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”);

(ii) Unlawful possession of a prohibited firearm, a Glock handgun with a barrel length less than 105 millimeters, without being the holder of a licence permitting such possession, contrary to s. 91(1) of the Code;

(iii) Unlawfully altering or defacing a serial number on a firearm, contrary to s. 108(1) of the Code;

(iv) Unlawful possession of a prohibited device, a handgun magazine capable of containing 12 rounds of ammunition, while knowingly not being the holder of a licence permitting such possession, contrary to s. 92(2);

(v) Unlawful occupation of a motor vehicle knowing that there was a prohibited firearm in that vehicle, contrary to s. 94(1) of the Code;

(vi) Unlawful possession of a firearm while being prohibited from doing so by an order made under s. 110 of the Code, contrary to s. 117.01(1) of the Code;

(vii) Unlawful possession of a controlled substance, fentanyl, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA);

(viii) Unlawful possession of a controlled substance, cocaine, for the purpose of trafficking, contrary to s. 5(2) of the CDSA; and

(ix) Unlawful possession of property or proceeds of property not exceeding $5,000 in U.S. currency, knowing that all or part of the property or proceeds were obtained as a result of the commission of an offence punishable by indictment, contrary to s. 355(b) of the Code.

[2] At the hearing, the defence had conceded that if the Defendant’s Charter application was unsuccessful, Mr. Mitchell would be found guilty of the substantive charges, with the exception of Count 7, possession for the purposes of trafficking in fentanyl. Based on the evidence, I found Mr. Mitchell not guilty on Count 7, but guilty of the lesser included offence of possession, contrary to s. 4 of the CDSA: R. v. Mitchell, 2024 ONSC 6756.

The Circumstances of the Offences

[3] The circumstances of the offences are described in detail in my Reasons for Judgment. I will reiterate only the most salient aspects here, as they pertain to determining the appropriate sentence.

[4] On May 7, 2022, Mr. Mitchell and Robert Davis were sitting in Mr. Mitchell’s vehicle on the side of the road. Police were investigating a robbery that had just taken place at a house party in a nearby condominium building. The officers drove by Mr. Mitchell’s vehicle. Based on their belief that Mr. Davis matched the complainant’s description of one of the perpetrators, they returned to the vehicle and arrested Mr. Davis. At the same time, they detained Mr. Mitchell.

[5] The officers searched the vehicle incident to Mr. Davis’ arrest and located a loaded Glock firearm with a black magazine containing three rounds of ammunition under the driver’s seat. They located a black balaclava face mask in the centre console of the vehicle and pepper spray under the passenger seat.

[6] Police then arrested Mr. Mitchell and obtained a search warrant for the vehicle. In the passenger area of the vehicle, officers located $1,600 in U.S. currency, sorted into five stacks; a balaclava face mask; a black iPhone; and documents and prescriptions in Mr. Mitchell’s name. In the trunk of the Audi, they found six balaclava face masks, a mask with a nun face and a false-bottom can. There were two backpacks in the trunk containing the following items:

• 312.67 grams of cocaine (separated into three plastic bags)
• 2.67 grams of fentanyl
• 0.25 grams of MDMA
• 282.04 grams of phenacetin/dimethylsulphone (cutting agents)
• 8.64 grams of boric acid
• An extended magazine clip
• A digital scale
• Torn plastic tied in a knot
• Small plastic “dime” bags
• Pill bottles in the Defendant’s name

[7] The firearm is a prohibited firearm as defined in s. 84 of the Code. Mr. Mitchell did not possess any firearms licences. At the time, Mr. Mitchell was subject to an order pursuant to s. 110 of the Code, made by Wilson J. of the Ontario Court of Justice on December 23, 2020, prohibiting him from possessing weapons for three years. [1]

The Circumstances of the Offender

Criminal Record

[8] Mr. Mitchell was 29 years old at the time of the offences. Mr. Mitchell has no criminal record.

[9] As of the date of the sentencing hearing, Mr. Mitchell had been arrested and was in custody. The Crown does not rely on his most recent arrest as an aggravating factor on this sentencing and I do not consider it in any manner.

The Pre-Sentence Report

[10] A pre-sentence report (“PSR”) was ordered and was completed on February 13, 2025 by Probation and Parole Officer Todd O’Flaherty (the “Officer”). The Officer interviewed Mr. Mitchell, his current partner (Odessa McCormack), Mr. Mitchell’s aunt (Kimberly DaCosta), and his long-time friend and current employer (Robert Kirkpatrick).

[11] Mr. Mitchell was raised primarily by his mother, but for most of his childhood, they both lived with his maternal grandparents, who were also actively involved in raising him. He had limited interaction with his father, who was not involved in most of his life. His aunt, Ms. DaCosta, was also actively involved in raising him. Mr. Mitchell stated that he had a loving home environment with considerable family support.

[12] As a child, Mr. Mitchell was diagnosed with ADD or ADHD, but his mother did not want him to take medication for it. He accessed resources at school and graduated with average grades. Mr. Mitchell was a social child and was actively involved in a variety of sports throughout his childhood.

[13] At some point, Mr. Mitchell became too challenging for his mother, and she kicked him out of the house. When she tried to have him move back in, he refused. After leaving home, Mr. Mitchell became involved in a relationship and had a child. He remained with that partner for seven years, during which time he worked and provided for his family. His partner also held multiple jobs. There was conflict in the relationship, however, that included police involvement.

[14] Approximately nine years ago, Mr. Mitchell’s mother died suddenly. Mr. Mitchell was 21 to 22 years old at the time. This was a significant traumatic event for Mr. Mitchell, who disclosed that upon arriving at her residence, he was left alone to wait for two and a half hours with her body before the coroner arrived. Even then, Mr. Mitchell had difficulty leaving her body. Mr. Mitchell disclosed that the magnitude of the loss of his mother did not fully hit him for three to four years, but it remains significant and “problematic” for him.

[15] Mr. Mitchell told the Officer that after his mother’s death, he began not to judge the people with whom he chose to associate and that from then on, he decided he would simply trust people.

[16] Two years after the relationship with his first partner ended, Mr. Mitchell began a relationship with his current partner, Ms. McCormack. They have a child together and Ms. McCormack has a child from a previous relationship. Mr. Mitchell continues to work and provide for his family.

[17] Ms. McCormack described Mr. Mitchell as an excellent father and as a loyal person who is always looking out for family and friends. Ms. McCormack acknowledged that Mr. Mitchell struggles with grief and has tried to cope. She described Mr. Mitchell as having made “incredible improvements” in dealing with situations as they arise, including how he has dealt with the charges against him by maintaining healthy habits and recognizing that he needs help. Ms. McCormack admitted to concerns about people with whom Mr. Mitchell associated in the past, but not at present. He has stopped going out with friends and she has observed a shift in his behaviour resulting from greater structure and routine. Ms. McCormack stated that Mr. Mitchell is now a much more responsible and present parent.

[18] Mr. Mitchell has consistently been employed at a variety of jobs since graduating high school, in areas such as car repair and warehouse work. He eventually began to work for a friend, Mr. Kirkpatrick, who has his own tire business. Mr. Mitchell had helped Mr. Kirkpatrick out regularly in the past and began working full-time for Mr. Kirkpatrick approximately three to four years ago. This situation helped Mr. Mitchell feel more grounded and fulfilled, and he began to feel better about himself.

[19] Mr. Mitchell does not have any issues with substance use or addictions. Alcohol does appear to have been a factor in the incident leading to his arrest in that Mr. Mitchell knew that he had drank too much at a party and wanted to sleep it off in his vehicle.

[20] The Officer described Mr. Mitchell as polite, cooperative and introspective. Mr. Mitchell was candid and frank with the Officer and answered the questions “with conviction” and in a manner that demonstrated that he had reflected on his life and situation. The Officer was impressed with Mr. Mitchell’s openness and expressed that this showed that he understood this to be an important step in the process. Mr. Mitchell was less open, however, about the events that led to his arrest and offered no explanation other than that he was not responsible for the actions of those with whom he chose to associate. Mr. Mitchell continues to believe that his rights were violated and that his vehicle should not have been searched.

Letters of Support

[21] Mr. Mitchell’s former partner, Yahaira Perez, submitted a letter of support describing Mr. Mitchell as a loving and actively involved father to their son. Ms. Perez states that Mr. Mitchell provides love and support to their child and that he attends school events, sports games and practices, in addition to taking him out for movies, swimming, and other activities. Ms. Perez advises that Mr. Mitchell creates a nurturing and positive environment for their child, demonstrating his devotion as a parent. She states that Mr. Mitchell has a strong bond with their son.

[22] In his letter, Mr. Kirkpatrick states that he has seen Mr. Mitchell listen, learn and mature over the past number of years. Mr. Kirkpatrick describes Mr. Mitchell as a hard-working, caring family-man and supportive friend. Mr. Kirkpatrick also described the significant impact of the death of Mr. Mitchell’s mother on him.

[23] Mr. Mitchell also submitted a letter from his friend of ten years, Jordan Galloway. Mr. Galloway spends time with Mr. Mitchell and his children and describes Mr. Mitchell as a devoted father who values his role as a parent. Mr. Galloway observed the impact of the death of Mr. Mitchell’s mother on him and believes that it had an impact on his choices, for which Mr. Mitchell has shown remorse. Mr. Galloway describes Mr. Mitchell as determined to learn and grow from his mistakes.

Analysis

The Parties’ Positions

[24] The Crown seeks a global sentence of seven to eight years in prison, before subtracting credit for presentence custody. This consists of three and a half to five years for the firearm offences, two to three years for the drug offences, and one year for breach of a court order, to be served consecutively. The Crown takes the position that seven and a half years lies exactly at the midpoint of the appropriate range of six to nine years and is reflective of the aggravating factors in this case.

[25] The defence submits that the sentence proposed by the Crown is excessive and fails to take into account the principle of totality. The defence seeks a global sentence of four years before deducting pre-sentence custody, that is three and a half years on the firearm and drug offences and six months for the breach of a court order. The defence does not dispute the aggravating factors in this case but argues that the Crown’s position does not sufficiently take into consideration the mitigating factors present in this case.

The Principles of Sentencing

[26] In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

Pursuant to s. 718.1 of the Criminal Code, “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence and the blameworthiness of the offender: R. v. M.(C.A.), para 40.

[27] The sentencing judge must also have regard to the following:

• any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv) of the Criminal Code;
• the principle of parity, in that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));
• the principle of totality, meaning that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and
• the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. McDonnell, para 29.

The Principles Applied

The Appropriate Range

[28] The Supreme Court of Canada has observed that s. 95(1) of the Criminal Code casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not: R. v. Nur, 2015 SCC 15, para 82, aff’g 2013 ONCA 677. In Nur, the Supreme Court upheld a 40-month sentence in relation to a 19-year-old first offender for one count of unlawful possession of a firearm under s. 95(1).

[29] The Ontario Court of Appeal has held that “[m]ost s. 95 offences will attract a penitentiary term.”: R. v. Smickle, 2014 ONCA 49, para 19. For individuals who bring guns into public spaces, a sentence of greater than three years is generally imposed: R. v. Mohaidin, 2021 ONCA 122; R. v. Camara, 2019 ONSC 115, aff’d 2021 ONCA 79.

[30] Handguns are a menace to society. When located with drugs, they are properly seen as tools of the trade: R. v. St. Clair, 2018 ONSC 7028, para 47. As the Court of Appeal stated in R. v. Morris, 2021 ONCA 680, para 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder…. 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. [Citations omitted.]

[31] The combination of drugs and guns is a serious aggravating factor on sentencing: R. v. Wong, 2012 ONCA 767, para 13. In Wong, the Court of Appeal observed that:

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: at para. 11.

[32] The Crown relies on the following cases in support of its position that the appropriate global sentence is from seven to eight years.

• R. v. Omoragbon, 2020 ONCA 336: upholding a global sentence of seven years for weapons and drug offences. The defendant had a variety of drugs, including fentanyl, which the court had characterized as a “mobile pharmacy.” The defendant, who had attempted to flee from the police, was young but had a lengthy record.
• R. v. Scharf, 2017 ONCA 794: dismissing the defendant’s sentence appeal and finding that 5 years was a fit sentence for possession of 236 grams of cocaine for the purposes of trafficking.
• R. v. Dodd, 2004 CarswellOnt 8108, aff’d 2006 CarswellOnt 348: upholding a sentence of 4.5 years for possession of 103 grams of cocaine for the purposes of trafficking.
• R. v. Guevara, 2024 ONSC 6346: the defendant, who had a dated criminal record, was sentenced to 42 months for possession of a loaded firearm, and 1 month for simple possession of 0.04 grams of cocaine, to be served concurrently.
• R. v. St. Clair, 2018 ONSC 7028: the defendant was sentenced to a global sentence of 8 years: 5 years for four firearm offences, 2 years for possession for the purposes of trafficking (approximately 25 grams of crack and powder cocaine) and one year for breach of prohibition orders. The defendant had a lengthy criminal record including crimes of violence and firearm offences.

[33] The defence relies on the following cases in support of its position that a global sentence of four years is appropriate:

• R. v. Findley, 2023 ONSC 1273: a sentence of 3 years and 10 months was imposed in respect of a defendant who pleaded guilty to possession of two firearms and 228 grams of cocaine. The defendant had been observed selling drugs and the firearms were found in the home where his children stayed. In that case, there were no other drugs and there was no breach of a prohibition order.
• R. v. Pitt, 2023 ONSC 5470: the defendant was sentenced to 4 years for firearm and drug offences. Mitigating factors that resulted in a sentence at the lower end of the range included the fact that the defendant was 19 years old and had no criminal record.
• R. v. Riedl, 2023 ONSC 2107: the defendant was sentenced to 3 years for possession of a firearm and 1 year for possession of approximately 81 grams of cocaine. The defendant was 25 years old and had breached the terms of his bail but no other conditions.

[34] I note that in the cases relied upon by the defence, the drugs at issue were smaller quantities of cocaine and/or did not include fentanyl. With the exception of Findley, the defendants were much younger than Mr. Mitchell.

[35] In R. v. Barreira, 2024 ONSC 4682, aff’d 2025 ONCA 107, paras 40-41, Stribopoulos J. found that the range for possession of a firearm as a tool of the trade was from two to four years, and that the range for possession for the purposes of trafficking of a smaller amount of cocaine (less than 28 grams) was from six months to two years less a day. Applying the principle of totality, the total sentence was reduced to five years before deducting presentence custody.

[36] Based on the foregoing case law, I find that the appropriate sentencing range for possession of a prohibited firearm in the circumstances of this case is from three to five years. In respect of the drug offences, in this case, there were a range of substances, including cocaine and fentanyl. In addition to the quantity and range of substances, police located $1,600 in U.S. currency, a scale, cutting agents, and dime bags, all of which are indicative of an intermediate level of trafficking. In my view, the appropriate sentencing range for drug offences of this nature is two to five years.

[37] In addition, breach of one prohibition order will typically result in a one-year sentence, whereas breach of more than one prohibition order will warrant a sentence of 18 months: R. v. Carrol, 2014 ONSC 2063, para 30.

Aggravating Factors

[38] In this case, there are a number of aggravating factors, which the defence did not dispute:

• The firearm was a loaded, semi-automatic handgun;
• There is no lawful use for the firearm in question;
• The weapon, which was found under the driver’s seat of Mr. Mitchell’s car, was stored carelessly and dangerously;
• When the firearm was discovered, Mr. Mitchell’s vehicle was on a public street in downtown Toronto;
• The possession of the firearm was not momentary, it was deliberate and prolonged;
• An extended magazine clip was also found in the vehicle; and
• At the time, Mr. Mitchell was under a weapons prohibition order.

Mitigating Factors

[39] There are a number of mitigating factors in this case. First, Mr. Mitchell’s rehabilitative potential is high. He does not have a criminal record. His friends and family members view the offences as out of character. He has been steadily employed to support himself, his partner and his children. Despite not having had his own father as a role model, because he was largely absent during his upbringing, Mr. Mitchell is a devoted and engaged father. The death of his mother, who was his sole parent, when he was a young adult has clearly caused Mr. Mitchell significant trauma that he continues to try to process. Among the items found in Mr. Mitchell’s vehicle were his mother’s ashes. In the PSR, Mr. Mitchell admitted to seeking attention in the wrong places after the death of his mother, demonstrating some reflection on the circumstances that brought him to court.

[40] Mr. Mitchell continues to receive support and encouragement from his grandparents, who were present for the trial, and his current partner. The letters of support demonstrate that Mr. Mitchell is a hardworking, loyal, and supportive friend and employee and that he continues to grow and mature.

[41] The Crown concedes that Mr. Mitchell’s family and community ties, as well as his lack of a criminal record, are important mitigating factors.

[42] The Crown submits, however, that Mr. Mitchell has not demonstrated remorse for his actions and that his invitation to convict after the dismissal of the Charter application was not an early guilty plea.

[43] In the PSR, Mr. Mitchell declined to discuss the offences or his conduct with the Officer. The defence submits that Mr. Mitchell did not discuss the offences with the Officer out of a concern for implicating others. The defence argues that by inviting a conviction after his Charter application was dismissed, Mr. Mitchell in effect took responsibility for the offences charged, with the exception of the charge of possession of fentanyl for the purposes of trafficking.

[44] While Mr. Mitchell has not expressed remorse, an absence of remorse is not an aggravating factor. Moreover, I agree with the defence that other than to assert his Charter rights, Mr. Mitchell essentially admitted the offences. The trial was focussed on the grounds for the arrest of Mr. Davis and the detention of Mr. Mitchell. I further agree that the Charter application was not frivolous and raised legitimate concerns about potential racial profiling.

[45] At the same time, Mr. Mitchell’s remark in the PSR about trusting, or at least not questioning, the persons with whom he associates is somewhat difficult to decipher. However, it must be clear to him by now that he should in fact exercise judgment about the people with whom he chooses to associate. Ms. McCormack reinforced this in her statement that while she used to have concerns about the people with whom Mr. Mitchell associated, she no longer has those concerns.

Systemic Factors

[46] The defence requests that this court take into consideration the systemic factors embedded in the criminal justice system that work consistently to the disadvantage of Black men such as Mr. Mitchell. There is no enhanced pre-sentence report in this case, which is to some extent a reflection of the barriers to obtaining one, which include the length of time that it takes to obtain such a report through Legal Aid and the cost of obtaining one privately. In the absence of an enhanced pre-sentence report, I am nonetheless able to take into consideration systemic factors that are likely to have played a role here: R. v. Smith, 2024 ONCJ 396.

[47] In Morris, at para. 102, the Court of Appeal confirmed that social context relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence 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. Where past hardship including the impact of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. While a direct causal link is not required, there must be some connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the criminal conduct in issue: Morris, at paras. 96-97.

[48] Further, in Morris, at para. 81, the social context evidence was found to provide a basis upon which the trial judge could give added weight to the objective of rehabilitation and less weight to the objective of specific deterrence.

[49] In this case, the PSR does not provide much insight into the impact of anti-Black racism on Mr. Mitchell or the potential connection between his experiences with systemic racism and the offences at issue in this case. Mr. Mitchell described his childhood upbringing in mostly positive terms. I nonetheless recognize that as a young Black man raised in the Greater Toronto Area, Mr. Mitchell had to contend with systemic factors such as those identified in the “Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario” appended to the sentencing decision in R. v. Morris, 2018 ONSC 5186. Such factors would have impacted his experience with the education system, where Mr. Mitchell had to seek supports to help deal with his ADHD and was seen as a challenging child. He was nonetheless able to graduate and remain gainfully employed.

“Duncan” Consideration

[50] Mitigation can also be given on account of particularly difficult and punitive presentence custody conditions, including extended time spent on lockdown and lack of access to facilities. In determining whether any enhanced mitigation should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused: R. v. Duncan, 2016 ONCA 754, paras 6-7.

[51] In R. v. Marshall, 2021 ONCA 344, para 53, the Court of Appeal held that a “Duncan credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence”. The Court of Appeal has stated that quantifying the Duncan credit in the same manner as the “Summers” credit for presentence custody, which is dealt with further in these reasons, might improperly skew the calculation of the ultimate sentence: Marshall, at para. 53.

[52] The defence submits that Mr. Mitchell should be given enhanced credit for the entire period of his presentence custody based on the sentencing regime and because of the harsh conditions in which Mr. Mitchell was held, including lockdowns and restrictions related to staffing shortages at the Toronto South Detention Centre (TSDC). No credit is sought for the time Mr. Mitchell spent on bail.

[53] The Crown does not dispute that the conditions at the TSDC have been harsh.

[54] The conditions at the TSDC have been described by the courts as intolerable, deplorable and excessively harsh. As Molloy J. put it in R. v. Shaikh and Tanoli, 2024 ONSC 774, para 15, the question is not whether some credit should be given, but rather the extent of it.

[55] Lockdown records were available for the period from May 8, 2022, when Mr. Mitchell stepped into custody, to September 16, 2022, when he was released on bail. The total number of lockdown days was 55 days. Most of the lockdowns were due to staff shortages.

[56] In Shaikh, Molloy J. gave detailed and thoughtful reasons for quantifying Duncan credit notwithstanding the Court of Appeal’s comments in Marshall. I agree with the rationale and could not state it more eloquently. In brief, quantifying Duncan credit lends to greater transparency and consistency in the sentencing process. It also serves the secondary goal of shining a light on the extremely harsh circumstances that accused persons encounter at the TSDC, before there is a finding of guilt: Shaikh, at paras. 23-30.

[57] I am mindful of Doherty J.A.’s caution in Marshall that the quantification of Duncan credit could improperly skew the calculation of the ultimate sentence, in the sense that it could lead to a sentence that is disproportionately or artificially low. In this case, given Mr. Mitchell’s limited time in custody, quantification does not lead to such a result. I therefore apply Duncan credit at a rate of 1.5 days for every day of lockdown. In this case, there were 54 lockdowns during Mr. Mitchell’s time in custody, resulting in a credit of 81 days.

Consecutive or Concurrent

[58] As noted above, under the principle of totality, where consecutive sentences are imposed, the combined sentence should not exceed the overall culpability of the offender: R. v. M.(C.A.), para 42. An unduly harsh or excessive sentence may frustrate the goals of the sentencing process and cause confidence in the fairness and rationality of the sentencing process to deteriorate: R. v. Johnson, 2012 ONCA 339, para 20. At the same time, a sentence should not be overly lenient or unresponsive to other principles underlying the sentencing regime and an offender “ought not to be seen to be reaping benefits from his previous serious criminal misconduct”: Johnson, at para. 23.

[59] The court must balance the need to protect the integrity of the sentencing process against the recognition that “there will be situations where, globally speaking, a combined sentence will simply be too harsh and excessive”: Johnson, at para. 24.

[60] In this case, Mr. Mitchell was bound by a weapons prohibition order. Sentences for breaches of prohibition orders are to be served consecutively to any substantive offences. The imposition of consecutive sentences is intended to ensure that disregard of firearm prohibition orders, imposed in the interest of public safety, does not go unpunished. It also acknowledges that the breach of a prohibition order is different behaviour than the associated offences, engaging different social interests: R. v. Claros, 2019 ONCA 626, paras 51-52.

[61] The defence argues that the global sentence sought by the Crown is excessive and disregards or misapplies the principle of totality. The defence submits that the court must first determine the appropriate global sentence and then apportion the total sentence to each respective offence.

[62] The approach advanced by the defence is the correct one. In R. v. Ahmed, 2017 ONCA 76, paras 84-85, the Court of Appeal reiterated its decision in R. v. Jewell that the correct approach is for the trial judge to first identify the gravamen of the conduct giving rise to all of the criminal offences and next determine the total sentence to be imposed. Once the appropriate total sentence is determined, the trial judge should then impose sentences with respect to each offence which result in the total sentence and which appropriately reflect the gravamen of the overall criminal conduct.

Summary of the Application of the Sentencing Principles

[63] Higher courts have consistently held that the overarching sentencing principle in firearms cases is denunciation and deterrence by the imposition of exemplary sentences: Nur, at para. 5; R. v. Brown, 2010 ONCA 745, para 14.

[64] The most significant principles engaged in this case are denunciation, deterrence and the separation of the offender from society. At the same time, given the impact of anti-Black racism and Mr. Mitchell’s personal experiences, my consideration of those objectives must be balanced with a consideration of the objective of rehabilitation.

[65] Mr. Mitchell’s prospects for rehabilitation are very good. At 31 years old, he is relatively young. He has strong support from his spouse, children, aunt, grandparents and friends. He has consistently been employed and motivated to work. As a devoted father, his children provide him with strong motivation to refrain from criminal activity in the future.

[66] In addition, Mr. Mitchell has reflected deeply on the consequences of his conduct and that of the individuals with whom he associated. Mr. Mitchell’s statements in the PSR reflect that he has developed some insight into his conduct that night, including consuming an excessive amount of alcohol and the consequences of his actions.

[67] In my view, the PSR does not provide a basis to find that Mr. Mitchell’s lived experiences as a Black man mitigate his moral blameworthiness for the criminal conduct or the seriousness of the offences committed. Nonetheless, I find that his experience highlights that rehabilitation should be an important sentencing objective in the circumstances: see Morris, at paras. 80-81.

[68] Based on all of the circumstances, taking into consideration the gravamen of the offences, as well as the aggravating and mitigating factors detailed above, and applying the principles of totality and restraint, I find that an appropriate global sentence is five and a half years, which I apportion as 35 months for the firearm offences; 25 months for the drug offences and 6 months for the breach of a prohibition order, to be served consecutively.

Pre-Sentence Custody

Summers Credit

[69] Under s. 719(3.1) of the Criminal Code, Mr. Mitchell is entitled to credit for pre-sentence custody at a rate of 1.5:1: R. v. Summers, 2014 SCC 26.

[70] The parties agree that Mr. Mitchell was in custody for 132 days between his arrest and his release on bail. Mr. Mitchell has accrued an additional 35 days in custody after his bail was revoked following his subsequent arrest, which is to be applied to this sentence. The total Summers credit is therefore 250.5 days (167 x 1.5).

Conclusion

[71] After subtracting Summers credit (250.5 days) and the time I have allocated for Duncan consideration (81 days), the sentence that remains to be served is 1,676 days, or 55 months, which I apportion as follows: 32 months to the firearm offences, 18 months to the drug offences and 5 months to the breach of a prohibition order.

[72] For the foregoing reasons, Mr. Mitchell is sentenced to a global sentence of 55 months, apportioned as follows:

• For the offences of possessing a prohibited firearm and prohibited device without a licence and the related firearm offences (Counts 1 to 5): 32 months to be served concurrently;
• For the offence of breach of a weapons prohibition order (Count 6): 5 months, consecutive to the sentences on Counts 1 to 5 and Counts 7 to 9; and
• For the offences of possession of cocaine for the purpose of trafficking, possession of fentanyl, and possession of proceeds of crime (Counts 7 to 9): 18 months to be served concurrently but consecutively to the sentences on Counts 1 to 6.

Ancillary Orders

[73] The following ancillary orders shall be made: a DNA order under s. 487.051 of the Code; a weapons prohibition order for life under s. 109 of the Code; and a forfeiture order for all items seized under s. 491 of the Code.

“Nishikawa J.”

Released: May 5, 2025

[1] The weapons prohibition order was made in the context of a previous offence for which Mr. Mitchell was discharged in December 2021. He has no criminal record at this time.