Court File and Parties

Court File No.: CR-23-16121-00
Date: 2025-06-30
Court: Ontario Superior Court of Justice

Between:
His Majesty the King
and
Ivor Shawn Young, Defendant

Appearances:
Ngai On Young, Counsel for the Crown
Alexa Banister-Thompson, Counsel for the Defendant, Ivor Shawn Young

Heard: May 13, 2025
Justice: J. Speyer

Introduction

[1] On October 23, 2024, Mr. Young was convicted of three charges following his trial: unauthorized possession of a loaded restricted firearm, possession of a restricted firearm in a motor vehicle, and possession of cocaine.

[2] The sentencing hearing was to occur on January 24, 2025, but counsel for Mr. Young requested an adjournment to permit the preparation of an Impact of Race and Cultural Assessment (“IRCA”). The Crown consented to an adjournment for that purpose and the sentencing hearing was adjourned to March 14, 2025. On March 14, 2025, counsel for Mr. Young sought a further adjournment to bring an application to stay the sentencing proceedings because of an alleged infringement of Mr. Young’s right to have a prompt bail hearing following his arrest on October 1, 2022. I granted the defence request and adjourned the sentencing hearing to May 13, 2025, to be heard together with submissions in relation to an anticipated defence application to stay the proceedings against Mr. Young.

[3] On May 13, 2025, defence counsel moved for a mistrial because the Court of Appeal’s decision in R. v. McGowan-Morris, 2025 ONCA 349, released on May 7, 2025, came to a different conclusion than I reached in my decision in a pre-trial motion in this case: see R. v. Justin Dyer and Ivor Shawn Young, 2024 ONSC 4767, released September 20, 2024. After some discussion, and after Crown counsel conceded that Mr. Young’s s. 10(b) right to be advised of his right to counsel was breached when he was not advised of that right after police formed grounds to conduct a search of a motor vehicle pursuant to the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1 ("the CCA") and before the search was conducted, and that the Crown would not rely on any public safety justification for delaying the giving of rights to counsel, defence counsel invited me to dismiss the mistrial application, re-open the trial and reconsider my s. 24(2) analysis. The defence submits that the evidence seized by the police should be excluded, resulting in an acquittal for Mr. Young. The application for a mistrial is dismissed, and I will re-open the trial to reconsider my s. 24(2) analysis.

[4] Also on May 13, 2025, counsel made submissions on the defence application for a stay of proceedings because of delay in conducting Mr. Young’s bail hearing.

[5] Finally on May 13, 2025, counsel made submissions regarding a fit and proper sentence for Mr. Young if he remains convicted and the proceedings against him are not stayed.

[6] These reasons address three discrete issues:

1. An application by the defence to re-open the trial, to consider the impact of the recent decision of the Ontario Court of Appeal in McGowan-Morris on my pre-trial ruling regarding the admissibility of evidence, and what may flow from that.
2. An application by the defence for a stay of proceedings because of delay in conducting Mr. Young’s bail hearing.
3. The sentence to be imposed on Mr. Young, if he remains convicted and the proceedings against him are not stayed.

1. The Application by the Defence to Re-Open the Trial

(a) How the Application Arose

[7] Before I heard submissions relating to the application for a stay of proceedings and the sentence to be imposed if proceedings were not stayed, counsel for Mr. Young drew my attention to the decision of the Ontario Court of Appeal in McGowan-Morris. Crown and defence counsel agree that the McGowan-Morris decision clarifies the law in relation to when the right to counsel arises in cases involving searches conducted pursuant to the CCA. Crown and defence counsel also agree that in my decision in this case on the defence application to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ("the Charter"), released on September 20, 2024, I got that wrong. I agree and am grateful to counsel for bringing the McGowan-Morris decision to my attention.

[8] In my September 20, 2024, decision, I held that, just as the operational requirements of roadside sobriety testing implicitly create a reasonable limit on s. 10(b) rights, prescribed by law, that is justified under s. 1 of the Charter, similarly the operational requirements of the CCA search power implicitly create a reasonable limit on s. 10(b) rights, prescribed by law, that is justified under s. 1 of the Charter.

[9] In McGowan-Morris, the Court of Appeal held that s. 12 of the CCA, which empowers the police to search motor vehicles and their occupants where the police have reasonable grounds to believe that cannabis is contained in the vehicle in breach of packaging requirements, does not by necessary implication limit the requirements imposed by s. 10(b) of the Charter. Therefore, s. 1 of the Charter cannot operate to suspend the operation of the right to counsel before police conduct a search under s. 12(3) of the CCA: McGowan-Morris, at paras. 96-97. Once the police form reasonable grounds to search and intend to search a vehicle and its occupants under the authority of the CCA, the occupants are entitled to their full rights under s. 10(b) of the Charter. These rights may be delayed or suspended only if case-specific public safety concerns exist: McGowan-Morris, at paras. 98-103.

[10] Counsel for Mr. Young initially moved for a mistrial. However, after the Crown conceded that a breach of Mr. Young’s s. 10(b) rights occurred when he was not advised of his right to counsel before the CCA search began, and that the Crown would not advance any argument that a delay in providing him with his right to counsel was justified by safety concerns, Ms. Banister-Thompson invited me to dismiss the mistrial application. Both parties agree that I am not functus and can re-consider my decision to admit the evidence about the black backpack found under Mr. Young’s legs and its contents considering the Court of Appeal’s decision in McGowan-Morris, and the conceded s. 10(b) breach.

(b) The Facts Relating to the s. 10(b) Breach

[11] For ease of reference, I will set out the facts I found at the hearing of the application to exclude evidence that bear on this issue. The facts were largely not in dispute because the two police officers involved with Mr. Young activated their body-worn cameras during their interactions with him. The quality of the audio and video recordings was very good.

[12] PC Petschenig was driving a marked police vehicle. PC Grainger was his partner. They were on uniform patrol, and before their interaction with a white KIA SUV began, they were conducting a proactive patrol in the area of the downtown Whitby bars. The Hotel Royale was one such establishment. PC Petschenig testified that they were looking for drivers leaving the hotel to check the sobriety of the drivers. His usual routine was to drive through the parking lots along the backs of the bars, and to stop cars that were driving through the parking lots to check the drivers’ sobriety. He had an approved screening device (“ASD”) in his police vehicle.

[13] As he approached the rear of the Hotel Royale, through a laneway to the north of the Hotel, PC Petschenig saw two vehicles leaving the parking lot behind the Hotel through an alleyway that runs south from the Hotel, through a funeral home parking lot, to Dundas Street West. One of those vehicles was the white KIA SUV. The other was a black sedan.

[14] PC Petschenig proceeded southbound in the alleyway behind the Hotel to try to catch up to the vehicles. He intended to check the sobriety of the drivers. The vehicles turned right onto Dundas Street West and proceeded westbound for one block, to Byron Street. They turned left to proceed southbound on Byron Street South. PC Petschenig saw them turn onto Byron Street South. But he encountered a red light and waited for it to turn green to proceed. When PC Petschenig made his left turn onto Byron Street South, he could see the two vehicles proceeding southbound about ½ kilometre ahead of him. As the two vehicles travelled southbound on Byron Street South, PC Petschenig got closer. He closed the distance between the two vehicles and his police vehicle to about 100 to 200 metres. The two vehicles turned left on Arthur Street, drove for one block on Arthur Street, and then turned right to proceed southbound for one block on Brock Street South. PC Petschenig followed.

[15] PC Petschenig closed the distance between his police vehicle and the white KIA SUV as it proceeded into the left turn lane at the intersection of Brock Street South and Consumers Drive. The black sedan, which was further ahead, continued straight through the lights. At that intersection, PC Petschenig chose to follow the white KIA SUV because it was closer and was travelling slower than the black sedan.

[16] As the SUV, followed by the police vehicle, made its left turn, at 12:30:28 a.m., PC Petschenig activated the emergency lights of the police vehicle while PC Grainger, seated in the front passenger seat of the police cruiser, used the mobile data terminal (MDT) present in the vehicle. They followed the white KIA SUV as it pulled off the roadway into the parking lot of a McDonalds. At 12:30:43 a.m., PC Grainger is seen typing on the MDT keyboard. The SUV parked in a designated parking area. PC Petschenig parked the police vehicle perpendicular to, and behind the SUV. By this time, the officers had learned (in response to a licence plate query on the MDT) that the registered owner of the SUV was unlicensed.

[17] At 12:31:03 a.m., PC Petschenig approached the driver’s side of the SUV on foot and PC Grainger approached the passenger’s side. The driver’s window was down and the driver, Mr. Dyer, looked back at PC Petschenig who asked: “Hey, sir, how’s it going?” PC Petschenig told Mr. Dyer that his body-worn camera was recording. He told Mr. Dyer that the reason he pulled him over was that “you guys” were leaving the Royal, a reference to the Hotel Royale, and that he was just checking to make sure that the driver was sober. He asked Mr. Dyer if he had anything to drink that night. Mr. Dyer responded that he did not have anything to drink and that he was the designated driver. He then corrected himself and told the officer he had one beer, an hour or two earlier.

[18] As PC Petschenig spoke with the driver, PC Grainger used his flashlight to illuminate the inside of the vehicle. He could not do so through the front passenger side window, because it was tinted, so he moved to the front of the SUV, and pointed his flashlight at the front driver’s side of the SUV, illuminating the driver, as PC Petschenig spoke with the driver.

[19] At 12:31:45 a.m., PC Petschenig read a demand to Mr. Dyer to provide a sample of his breath into an ASD. Mr. Dyer got out of his vehicle at the direction of PC Petschenig and stood at the rear of his vehicle while PC Petschenig retrieved his ASD from the rear of his police vehicle.

[20] While PC Petschenig was retrieving the ASD, PC Grainger told him at 12:32:05 a.m., that there was a grinder in the cupholder. PC Petschenig continued with his sobriety investigation. He explained to Mr. Dyer what the consequences of various ASD readings could be. At 12:33:12 a.m., Mr. Dyer provided a suitable sample of his breath into the ASD. The machine produced a reading of 15, which PC Petschenig explained meant that “he was legal”. Then, at 12:34:15 a.m., PC Petschenig asked Mr. Dyer if he had his driver’s licence with him. Mr. Dyer indicated that he had it and walked to the passenger side of his SUV. PC Petschenig told PC Grainger that Mr. Dyer was just grabbing his stuff and that he only blew “a 15.”

[21] While Mr. Dyer was out of the SUV providing a sample of his breath into the ASD, PC Grainger, having observed the marijuana grinder in the cupholder, asked Mr. Dyer if he’d had anything to smoke that night. Mr. Dyer responded “no”. From 12:32:18 a.m. until 12:34:23 a.m., when Mr. Dyer returned to the SUV to retrieve his licencing documents, PC Grainger remained at the front of the SUV with his flashlight illuminating the driver’s seat area. PC Grainger did not use his flashlight during this time to illuminate other parts of the interior of the SUV.

[22] At 12:34:30 a.m., Mr. Dyer opened the front passenger side door of his car and reached into the car. PC Grainger told him that he had a few questions. He said “The grinder – could you open that up for me? And the plastic bag, is that weed in the bag?” Mr. Dyer showed him a baggie, that did not contain cannabis, and produced the marijuana grinder from the front console area of the car, opened it, and showed it to PC Grainger. PC Grainger stated that there was a little bit of weed in the grinder and then asked: “How much weed is in the car?” He told Mr. Dyer that he wanted to make sure that there was not too much readily available to him.

[23] In response, Mr. Dyer walked around the front of his car, entered the driver’s seat at 12:35:00 a.m., reached into the floorboard area behind the driver’s seat, and into a backpack from which he pulled out a baggie containing a small amount of cannabis. At 12:35:45 a.m., PC Grainger told Mr. Dyer that the cannabis was readily available and that what they needed to do was make sure that there was less than 30 grams of cannabis in the car. He asked Mr. Dyer if there was more than that in the car, and Mr. Dyer responded that there was probably a little more. PC Grainger told him they were going to have a quick look. He asked Mr. Dyer if he had any cannabis on his person.

[24] PC Grainger conducted a quick pat down search of Mr. Dyer which was limited to patting his pockets and looking at his waistband.

[25] During the interactions between Mr. Dyer and the officers, the front driver’s side door of the car was open, and the rear driver’s side window was partly open. The volume of the conversations that Mr. Dyer had with the officers was conversational and no one raised their voices. But their interaction beside and inside the car would have been overheard by the passengers in the car.

[26] Mr. Dyer was instructed by PC Grainger to “hang out” at the rear of the vehicle. PC Petschenig interjected that he would also have to see Mr. Dyer’s driver’s licence, and Mr. Dyer returned to the front of the vehicle to retrieve his documents at about 12:37 a.m.. At the same time, PC Grainger asked Mr. Young to step out of the vehicle so that the police could make sure that he did not have any marijuana. Mr. Young stepped out of the SUV at 12:37:10 a.m.. PC Grainger conducted a quick pat-down search of Mr. Young, and then allowed him to retrieve his cell phone and other personal items that had been removed from his pockets.

[27] At 12:38:05 a.m., PC Grainger asked the front seat passenger, Ms. Lowe, if she minded stepping out of the vehicle because of the cannabis and asked her if she had any cannabis in her possession. She responded that she did not.

[28] When Mr. Dyer appeared to be having trouble locating his documents, PC Petschenig asked him if he had a health card. At 12:37:24 a.m., Mr. Dyer produced an expired driver’s licence, together with a paper licencing document and provided them to PC Petschenig at 12:37:40 a.m.. PC Petschenig took the documents, told Mr. Dyer “I’ll be right back buddy”, and took the documents to his police vehicle, where he conducted queries on his MDT. At 12:38:57 a.m., PC Petschenig got out of his vehicle and returned to speak with Mr. Dyer about the renewal of his driver’s licence.

[29] PC Petschenig explained that he was waiting for all the returns to come in on his inquiries, but provided Mr. Dyer an opportunity to explain the process of his licence renewal. Mr. Dyer did so. PC Petschenig received information from the Ministry of Transportation that the licence had not been renewed because there was a $36 renewal fee to be paid and that the licence expired on September 21, 2022. He explained this to Mr. Dyer and told him that he was “not going to jam you up” on account of the expired licence. PC Petschenig testified that the fine for driving without a licence was much more than $36, and that he exercised his discretion not to pursue the licencing issue because Mr. Dyer had been extremely polite to him. He testified that he would have let another licenced and sober driver drive the SUV away. PC Petschenig asked the passengers if they were licenced drivers, sober, and willing to drive the car. Mr. Young had only a G1 licence. The female front seat passenger had a licence, but had something to drink, and said that she would rather not drive.

[30] At 12:38:15 a.m., PC Grainger explained to all three occupants of the SUV, who were standing in the area behind the SUV, that the officers were just going to give it a quick search “just to make sure there’s no cannabis at all”. Mr. Dyer then said that he had weed on him, went to the front passenger side of the vehicle, and produced a plastic bag containing apparent marijuana from a backpack. PC Grainger responded that “we’ll figure it out” and told Mr. Dyer that “we appreciate the honesty”. Mr. Dyer returned to stand behind his SUV while PC Grainger continued his search of the SUV.

[31] At 12:39:04 a.m., an unidentified police officer, who was standing by, asked PC Grainger: “Just open cannabis?” PC Grainger responded “yeah” and “there might be a lot of cannabis”, referring to items contained in a backpack that had been located on the rear floorboard, behind the centre console. PC Grainger, referring to a bag of apparent cannabis, noted that its contents were “over 30”. PC Grainger explained in his evidence that although possession of that amount is an offence under the Cannabis Act, S.C. 2018, c. 16, he did not charge anyone with possession of that amount and had no interest in charging anyone with that ticketable offence. He would have exercised his discretion to issue a caution if that was all that there was.

[32] PC Grainger asked Mr. Young and Ms. Lowe to provide their identification to PC Petschenig. He removed Ms. Lowe’s driver’s licence from a purse located in front of the front passenger seat. He told her that he had it and told her not to let him forget that he had it. He explained that, because there was cannabis readily available in the car, everyone had to identify themselves and be searched. He told Ms. Lowe that she would not be searched. He explained in his evidence that there was no female officer present to search Ms. Lowe and that in the circumstances, he did not see a need to call for a female officer.

[33] PC Grainger continued to search the SUV. At 12:42:02 a.m., he pulled a black backpack from the back seat area. He pulled a plastic bag containing apparent marijuana out of the backpack and then said “There’s a gun. There’s a fucking gun.” PC Grainger testified that he was surprised to find the gun, and his tone when he found it supports that evidence. He immediately left the SUV and walked to where PC Petschenig was standing with the vehicle occupants.

[34] At 12:42:20 a.m., PC Grainger advised PC Petschenig that there was a “lot of weed” in the car, and that unfortunately there was also a firearm in the vehicle. He then advised Mr. Dyer, Mr. Young, and Ms. Lowe that they were all under arrest, and told them to put their hands behind their backs. As they were being handcuffed, PC Grainger asked if someone could tell him if the firearm was real or not and said that “it’d be nice to know”. In his evidence, PC Grainger explained that he asked the question, not to elicit evidence, but that it would be nice to know if it was real so that they don’t accidentally shoot someone.

[35] At 12:42:59 a.m., PC Petschenig told Mr. Dyer that he was under arrest for possession of a firearm. He cautioned Mr. Dyer not to say anything because his body-worn camera was recording him. He escorted Mr. Dyer to the side of his police vehicle and conducted a pat-down search. At 12:44:30 a.m., he told Mr. Dyer that he was arresting him for possession of a firearm and possession of more than 30 grams of cannabis. He read Mr. Dyer his right to counsel from his notebook and cautioned him that he did not have to say anything, and that anything he said could be used in evidence. Mr. Dyer was asked if he wanted to call a lawyer and he responded “no”. He expressed his concern that someone come to pick up his car. At 12:45:40 a.m., PC Petschenig asked Mr. Dyer whether he knew if the firearm was real and did not receive a response. PC Petschenig transferred custody of Mr. Dyer to two other officers for the purpose of transporting Mr. Dyer to 17 Division, because Mr. Young had been placed in the rear of his vehicle.

[36] At 12:43:33 a.m., after Mr. Young was handcuffed, PC Grainger escorted him to the side of his police vehicle and told him that he did not have to say anything, but that anything he said could be used against him. PC Grainger advised Mr. Young that he was under arrest for possession of a firearm and possession of more than 30 grams of cannabis. He advised him of his right to retain and instruct counsel in standard terms and asked if he understood. Mr. Young understood.

[37] Mr. Young asked if he could look in his phone to find a phone number, and PC Grainger told him that back at the station, they could go through his phone with him to find a lawyer’s phone number if that is what he wanted to do. He also told him that back at the station he could provide Mr. Young with a list of lawyers. Mr. Young said that he did not want to call a lawyer right then. PC Grainger told Mr. Young to let him know if he changed his mind. He placed Mr. Young in the rear seat of his vehicle and told Mr. Young that he could change his mind at any time about a lawyer.

[38] At 12:46:19 a.m., PC Grainger, having placed Mr. Young in the rear of his police vehicle, told PC Petschenig that he was going to continue his search of the SUV. PC Grainger then proceeded to search the SUV, while other officers looked on. He found more cannabis, cocaine, and scales.

(c) Analysis

[39] When McGowan-Morris is applied to the foregoing evidence, it is apparent that Mr. Young’s s. 10(b) right to counsel was infringed when PC Grainger formed grounds to believe that there was cannabis in the Kia that was readily available to the driver, and formed the intention to search the Kia. The Crown reasonably concedes this to be so. That occurred at, or shortly before, 12:35:45 a.m., when PC Grainger told Mr. Dyer that the cannabis was readily available and that what they needed to do was make sure that there was less than 30 grams of cannabis in the car. Mr. Young was not then given his s. 10(b) rights. The Crown concedes that in the circumstances of this case, there were no public safety reasons known to the police that could justify delay in affording Mr. Young and the other occupants of the Kia their s. 10(b) rights.

[40] Mr. Young was advised of his right to counsel at, or shortly after, 12:43:33 a.m., about eight minutes after he should have been given his s. 10(b) rights. During that time, the CCA search of the Kia proceeded, and a gun and drugs were found.

[41] It must be recalled, as I consider whether admission of the evidence obtained during the search of the Kia would bring the administration of justice into disrepute, that I found another breach of Mr. Young’s s. 10(b) Charter right. I found that Mr. Young’s right to speak with counsel was infringed when duty counsel did not call back within a reasonable time, and the police did not follow up to determine what was amiss and therefore were not reasonably diligent in facilitating Mr. Young’s right to speak with counsel, delaying Mr. Young’s ability to speak with duty counsel. The cumulative effect of the breaches of Mr. Young’s s. 10(b) Charter rights must be considered.

[42] As during my initial consideration of the s. 24(2) application, the Crown, reasonably, does not argue that the seized evidence was not “obtained in a manner” that infringed the Charter rights of Mr. Young. The “obtained in a manner” threshold for the application of s. 24(2) of the Charter will be surpassed where the connection between the breach and the discovered evidence is causal, temporal, or contextual, or any combination of these three connections, as long as the connection is not “too tenuous or too remote”: R. v. Pino, 2016 ONCA 389, para 72. While there was no causal connection between the discovery of the evidence and the right-to-counsel infringements, those matters were temporally and contextually connected.

[43] It remains to consider whether Mr. Young has established, on a balance of probabilities, that, having regard to all the circumstances including the cumulative effect of the infringements of his s. 10(b) rights, the admission of the seized items into evidence would bring the administration of justice into disrepute, by applying the three factors identified in R. v. Grant, 2009 SCC 32, para 71; R. v. Le, 2019 SCC 34, paras 139-142.

(a) The Seriousness of the Charter-Infringing Conduct

[44] The first Grant factor requires that I consider whether there has been misconduct from which the court should dissociate itself, situating the misconduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, paras 57-59.

[45] The more severe and deliberate the state conduct and the more serious the breach, the more the court will be required to dissociate itself from the state conduct by excluding the evidence linked to that conduct: see Grant, at para. 72; R. v. Tim, 2022 SCC 12, para 82.

[46] I have found that Mr. Young’s right to speak with counsel was infringed when duty counsel did not call back within a reasonable time, and the police did not follow up to determine what was amiss and therefore were not reasonably diligent in facilitating Mr. Young’s right to speak with counsel, delaying Mr. Young’s ability to speak with duty counsel.

[47] I have also found that Mr. Young’s s. 10(b) rights were infringed when he was not provided with those rights when PC Grainger formed grounds to search the Kia pursuant to the CCA and formed his intention to conduct that search.

[48] I previously found that the failure of the police to follow up when duty counsel did not call back for Mr. Young appears to have been inadvertent. There is no evidence about why duty counsel did not return the call for Mr. Young in a timely way, or to suggest that the police had any reason to be concerned that duty counsel would not call back in a timely manner, as had occurred in relation to Mr. Dyer. While PC Grainger could, and should, have called sooner, when the delay became apparent to him, another call was placed to which duty counsel responded. The police efforts to put Mr. Young in touch with duty counsel fell short, but there is no evidence that this was anything but a one-off problem. The police did not set out to intentionally delay Mr. Young’s right to speak with counsel and there was no advantage to the investigation or prosecution in doing so. These circumstances lessen the need for the court to disassociate itself from the deficient efforts to get duty counsel on the line for Mr. Young after the initial call was placed. The problem was a product of fact-specific oversight, and not systemic or intentional breaches.

[49] In McGowan-Morris, the Court of Appeal characterized the delay in advising the detainee of his s. 10(b) rights before a CCA vehicle search as “not serious”. The Court noted that the delay in advising Mr. McGowan-Morris of his rights was “extremely brief”. The delay in that case occurred between 10:43 p.m., when the vehicle in which Mr. McGowan-Morris was pulled over to conduct a CCA search, and 10:58 p.m., when Mr. McGowan-Morris was advised of his right to counsel. During those 15 minutes, the police first waited for backup, and then had to deal with an attempt by another occupant of the vehicle to flee. It took a minute or so for that situation to be controlled. A search of the vehicle revealed the presence of two handguns and a magazine. Ten minutes elapsed between the time when the other man tried to escape and when Mr. McGowan-Morris was apprised of his right.

[50] In the present case, what began as a motor vehicle stop to investigate the sobriety and licencing status of the driver pursuant to the Highway Traffic Act, R.S.O. 1990, c. H.8, morphed into a CCA investigation that resulted in the discovery of a firearm. These phases of the investigation were not discrete, one from the other. Rather, for several minutes, the active and ongoing investigation into the sobriety and licencing status of the driver was co-extensive with the CCA investigation. This created a complex rights matrix for the police to navigate. McGowan-Morris is the first appellate decision that provides clear direction to the police about when s. 10(b) rights must be provided when CCA searches are conducted.

[51] In this case, PC Grainger ought to have provided Mr. Young with his right to counsel at 12:35:45 a.m. Those rights were provided at 12:43:33 a.m., a delay of about eight minutes. Like the Court of Appeal in McGowan-Morris, I characterize the delay in advising Mr. Young of his s. 10(b) rights as not serious. This breach does not move the needle on the scale used to assess state culpability.

[52] In the present case, considering the delay in advising Mr. Young of his s. 10(b) rights before the CCA search was conducted and the delay in putting him in touch with duty counsel, it remains the case that there is no pattern of Charter-infringing conduct. The police officers advised Mr. Dyer and Mr. Young of the reasons for their detention and then their arrest, updating them as the circumstances, and their jeopardy, changed. The officers turned their minds to, and planned for, the transportation of the three arrestees to the police station to facilitate their contact with counsel, ensuring that those who requested immediate contact with counsel were transported first. When Mr. Young was detained at the scene longer than the others, they made arrangements for him to contact counsel at the scene, an opportunity that he declined.

[53] In all the circumstances, I remain of the view that the s. 10(b) infringements that occurred in this case are moderately serious. These infringements pull slightly in favour of exclusion.

(b) The Impact on Mr. Young’s Charter-Protected Interests

[54] The second Grant factor requires me to evaluate the extent to which the breaches undermined the interests protected by the right infringed: Grant, at para. 76; Tim, at para. 90. To make that determination, I must consider the interests that are protected by s. 10(b) of the Charter and then consider the “degree to which the violation impacted those interests”: Grant, at para. 77.

[55] I have previously found that the breach of Mr. Young’s s. 10(b) right to consult with counsel without delay arising from the delay in putting him in touch with duty counsel did not seriously impact his ability to obtain assistance in regaining his liberty or obtain protection against the risk of involuntary self-incrimination: Suberu, at paras. 40-41. There was no evidence before me that his liberty would have been obtained any sooner had the breach not occurred. It was always the intention of the police to put Mr. Young in touch with counsel, and he knew that: R. v. Pileggi, 2021 ONCA 4, paras 122-125.

[56] While the fruits of a s. 8-compliant seizure can be excluded under s. 24(2) of the Charter, provided that the fruits of that seizure are causally, contextually, or temporally connected to another Charter breach, I may consider the lack of a causal connection in calibrating the seriousness of the Charter-infringing conduct: R. v. Mian, 2014 SCC 54, para 87; R. v. Griffith, 2021 ONCA 302, para 25. The absence of a causal connection is a factor “that weighs against the exclusion of evidence resulting from a s. 10(b) breach”: R. v. Do, 2019 ONCA 482, para 12; R. v. Keshavarz, 2022 ONCA 312, paras 112-115; R. v. DeSilva, 2022 ONCA 879, para 97; R. v. Hamouth, 2023 ONCA 518, para 54.

[57] In this case, there was no causal connection between the breaches of Mr. Young’s s. 10(b) rights and the finding of the gun. The Charter breaches did not contribute to the discovery of the evidence in any meaningful way.

[58] In McGowan-Morris, at para. 115, the Court of Appeal concluded that the “impact of the brief s. 10(b) breach on [Mr. McGown-Morris’] Charter-protected interests was minimal at best”. The Charter breach did not contribute to the discovery of the evidence in any meaningful way and the court found that the absence of a causal connection was “an important mitigating factor in evaluating the impact of the breach.”

[59] Likewise, the impact of the additional s. 10(b) breach in this case that occurred before the CCA search turned up the loaded handgun was minimal at best. This additional s. 10(b) breach does not affect my assessment of the impact of the breaches on Mr. Young’s Charter-protected interests.

[60] I remain of the view that the impact of the s. 10(b) breaches, viewed in their totality, on Mr. Young’s Charter-protected interests were not insignificant and pulled in favour of exclusion of the seized evidence, but the pull is not strong.

(c) Society’s Interest in Adjudication of This Case on Its Merits

[61] My assessment of this factor has not changed. The third Grant factor strongly favours the admission of the evidence in this case. The evidence is reliable physical evidence. It existed independently of the Charter infringements. The evidence is crucial to the Crown’s case. The charges are most serious and engage significant public safety concerns. The admission of the evidence in this case is necessary to serve the truth-seeking function of the trial.

(d) Balancing

[62] My balancing of the Grant factors remains unchanged by the addition of the delay in providing Mr. Young with his s. 10(b) rights before the CCA search was conducted, a breach characterized by the Court of Appeal in McGowan-Morris, at para. 116, as “non-serious.”

[63] The delay that occurred in this case in putting Mr. Young in touch with duty counsel was situation specific. The evidence sought to be excluded was seized in a Charter-compliant manner. The officers generally conducted themselves professionally and demonstrated their commitment to fulfilling their s. 10(b) obligations. They made mistakes. Apart from those mistakes, they conducted this investigation in an exemplary manner. Excluding the evidence would serve to punish the police for their mistakes and sacrifice the public interest in an adjudication of these very serious charges that implicate public safety by excluding very reliable evidence, when those mistakes did not contribute to the discovery of the evidence in any meaningful way.

[64] Balancing the factors and considering all the circumstances of this case, the evidence should not be excluded under s. 24(2) of the Charter. I find that exclusion of the gun, drugs, and other evidence seized from the SUV is not necessary to maintain public confidence in the administration of justice. The admission of the evidence would not damage the long-term repute of the administration of justice: McColman, at paras. 69-71, 73. Rather, to exclude the evidence would undermine that public confidence.

2. The Application by the Defence for a Stay of Proceedings

[65] Mr. Young applies for a stay of proceedings because his bail hearing did not occur until 8 days after he was ready to proceed with the hearing. He submits that his rights under ss. 7, 9 and 11(e) of the Charter were infringed because the court was unable to conduct his bail hearing in a reasonable time after he was ready to proceed with his bail hearing.

[66] The court was advised for the first time on March 14, 2025, a date on which sentencing submissions were to be made, that this application would be brought. At the request of the defence, the sentencing hearing was adjourned to permit the defence to file its stay application, and to permit the Crown to file a response.

[67] It is the position of the defence that Mr. Young’s bail hearing was unreasonably delayed, resulting in a breach of his s. 11(e)-protected right not to be denied reasonable bail without just cause, and his s. 9-protected right not to be arbitrarily detained. The defence further submits that the unjustified and unreasonable delay violates s. 7 of the Charter because it amounts to an abuse of process, and that warrants a stay of proceedings.

[68] The Crown accepts that unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter, but argues that because the delay occurred due to measures that were in place to prevent the spread of the COVID-19 virus and because Mr. Young could have had his bail hearing on the day of his arrest but chose not to proceed with a bail hearing until after he retained counsel, and that counsel took insufficient steps to expedite his bail hearing, no infringement of s. 11(e) occurred. The Crown points to the procedures that were in place when Mr. Young was arrested to protect prisoners from exposure to COVID-19. Those procedures challenged the capacity of the Central East Correctional Centre (“CECC”) to meet the need for video suites for remote court appearances. The Crown submits that a stay of proceeding should not be granted because the procedures in place in October 2022 were not normal bail court procedures, and the delays that existed then were a product of exceptional circumstances. The Crown submits that if I find that an infringement of Mr. Young’s s. 11(e) rights occurred, that the appropriate remedy, if any, is a form of enhanced credit for the time he spent in custody.

[69] The Crown also submits that there has been no abuse of process in this case and that a stay of proceedings is unwarranted.

(a) The Facts Relating to When the Bail Hearing Occurred

[70] Mr. Young was arrested on Saturday, October 1, 2022, at 12:42 a.m. He was brought before the weekend and statutory holiday bail court (“WASH court”) later that day. He was assisted by duty counsel, and sought an adjournment to October 3, 2022, to permit him to retain counsel.

[71] Mr. Young retained Ms. Banister-Thompson on October 2, 2022.

[72] On October 3, 2022, duty counsel sent an email to counsel for Mr. Young and advised her that Mr. Young was scheduled to appear in a video remand court that day at 5:30 p.m. Ms. Banister-Thompson appeared for Mr. Young and asked to conduct a bail hearing the following day, on October 4, 2022. The presiding justice of the peace inquired whether counsel had been in touch with the trial co-ordinator’s office yet, and counsel responded: “I have not yet, no.” The justice of the peace advised counsel that Mr. Young could not have a bail hearing on October 4, 2022, because “it’s already full with other contested bail matters.” Counsel asked that Mr. Young’s matter be spoken to on October 4, so that she could get in touch with the trial co-ordinator and the matter was adjourned to October 4, “marked to set a date for bail”. Ms. Banister-Thompson emailed the trial co-ordinator after court concluded, and asked “is there any chance to have the bail hearing tomorrow (Oct. 4) and if not, on Wednesday (Oct. 5)?”

[73] On October 4, 2022, the trial coordinator responded to Ms. Banister-Thompson and the Crown to obtain an estimate as to the time required for the bail hearing. After being advised that the bail hearing would take two hours, the trial coordinator offered October 11, 12 and 13 as available dates for the bail hearing. Ms. Banister-Thompson asked that the bail hearing be set for hearing on October 12, 2022. She was not available on October 11, 2022 because she had another court commitment. When Mr. Young appeared before the justice of the peace that day by video, Ms. Banister-Thompson advised the justice of the peace that a bail hearing had been scheduled for October 12, 2022.

[74] There was no impediment to Ms. Banister-Thompson contacting the trial co-ordinator early on October 3, 2022, to secure a date for Mr. Young’s bail hearing. The reason she did not do that was because she was unfamiliar with procedures in this jurisdiction. Counsel cannot be expected to know the various procedures that govern practice in all the regions of Ontario, but they can be expected to make inquiries. The evidence before me regarding the dates available for bail hearings when inquiries were made on behalf of Mr. Young’s then co-accused, Mr. Dyer, demonstrates that at around noon on October 3, 2022, bail hearings could be scheduled on October 6 or 7, 2022.

[75] On October 12, 2022, Ms. Banister-Thompson emailed Crown counsel with a proposed release plan and inquired what time the bail hearing would likely take place. The bail hearing occurred on October 12, 2022, and Mr. Young was released on bail.

[76] The scheduling of bail hearings in Oshawa in October 2022 was affected by the COVID-19 pandemic. The Ontario Court of Justice had implemented a protocol that governed the scheduling of bail hearings. All reasonable steps were to be taken to ensure that accused persons who were recently arrested and were prepared to proceed with their bail hearing that same day would have their bail hearing that day, whether it was contested or not, and whether they appeared in a weekday bail court or a WASH court, without requiring that they first be remanded into custody at a correctional facility. The protocol noted that video and audio resources for in-custody accused persons “remain extremely limited”. That first appearance bail court would sit until all new arrests who were ready for their bail hearings were dealt with. This often extended beyond regular court hours. Any matters that were not ready to proceed would be adjourned to a set date court. The CECC created a daily list of the prisoners who would appear by video and the time at which they would appear.

[77] The scheduling of bail hearings in Oshawa in October 2022 was affected by events that had occurred earlier during the pandemic. In May 2021, a COVID-19 outbreak was declared at the CECC. The CECC implemented new cleaning protocols and required each video suite used by inmates for their remote court appearances to be cleaned after each use. That cleaning protocol remained in place until October 2022, as the CECC experienced successive COVID-19 outbreaks.

[78] To schedule a bail hearing, Crown and defence counsel were required to confer and agree on how much time would be required for the bail hearing. Counsel would then contact the trial coordinator who would, in turn, contact the CECC for potential dates on which the bail hearing could be accommodated by the CECC.

[79] The bail court would often sit past 5:00 p.m. to maximize the number of bail hearings that could be heard each day. After each bail hearing, the cleaning protocol required that the video suite at the CECC be cleaned to minimize the potential transmission of the COVID-19 virus. The cleaning protocol was in place until October 26, 2022.

[80] On October 26, 2022, bail courts in Oshawa reverted to in-person appearances by direction of the local administrative justice of the peace. This was done to address a growing backlog of bail hearings, and to ensure that bail appearances would not be restricted to time slots provided by correctional institutions.

(b) The Issues

[81] The application raises three questions for determination:

1. Were Mr. Young’s s. 11(e) and s. 9 Charter rights infringed?
2. Did the delay in conducting Mr. Young’s bail hearing amount to an abuse of process, infringing s. 7 of the Charter?
3. If the answer to question 1 or 2 is “yes”, should the proceedings be stayed under s. 24(1) of the Charter?

(c) Analysis

(a) Were Mr. Young’s s. 11(e) and s. 9 Charter Rights Infringed?

[82] It is the position of the defence that Mr. Young’s s. 11(e) and s. 9 Charter rights were infringed and that this amounts to an abuse of process, warranting a stay of proceedings.

[83] The relevant provisions of the Charter provide:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Any person charged with an offence has the right …

(e) not to be denied reasonable bail without just cause.

[84] In the context of this case, an infringement of section 9 of the Charter will be made out only if an infringement of s. 11(e) is established. I will not address s. 9 further because in the circumstances of this case it does not add anything to Mr. Young’s position.

[85] Section 11(e) of the Charter confers a right to a bail hearing in a reasonable time. In R. v. Zarinchang, 2010 ONCA 286, para 39, the Court of Appeal confirmed that s. 11(e) has a temporal component:

Unreasonably prolonged custody awaiting a bail hearing gives rise to a breach of s. 11(e) of the Charter. [Citations omitted.]

See also: R. v. Barletta, 2021 ONSC 8618, para 14.

[86] Mr. Young’s right to a bail hearing in a reasonable time was not infringed. It was not infringed because: 1) he could have had his bail hearing on October 1, 2022, but chose to adjourn his bail hearing to permit him to retain counsel; 2) had counsel taken expeditious steps to ascertain and follow the procedures in place in Durham Region to schedule a bail hearing, the bail hearing could have occurred on October 6 or 7, 2022; and 3) the procedure that existed in October, 2022 for scheduling bail hearings was necessary, and was implemented in good faith, to address health concerns arising from the COVID-19 pandemic, which amounts to an exceptional circumstance.

(b) Did the Delay in Conducting Mr. Young’s Bail Hearing Amount to an Abuse of Process, Infringing s. 7 of the Charter?

[87] The Supreme Court of Canada has identified two categories of abuse of process. The first occurs where state conduct compromises the right of an accused to a fair trial. The second, or residual, category comprises prosecutions where state conduct risks undermining the integrity of the judicial process: R. v. Babos, 2014 SCC 16, para 31. The defence submits that the impugned conduct in this case falls into the residual category.

[88] For the reasons I have already explained in relation to my finding that Mr. Young’s s. 11(e) Charter rights were not infringed, I also find that the state conduct that contributed to the delay in conducting Mr. Young’s bail hearing did not risk undermining the integrity of the judicial process and did not amount to an abuse of process.

(c) Is a Stay of Proceedings an Appropriate Remedy?

[89] If I am wrong, and the delay in conducting Mr. Young’s bail hearing did risk undermining the integrity of the judicial process, or breach his s. 11(e) Charter rights, and did amount to an abuse of process, I will go on to consider whether a stay of proceedings would be an appropriate remedy.

[90] A stay of proceedings is a drastic remedy, one that is to be granted very rarely and only in the clearest of cases. In Babos, at para. 30, the Supreme Court explained why this is so:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, para 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits.

See also: Babos, at para. 44.

[91] A stay for abuse of process is a forward-looking remedy. As was said in Babos, at para. 39,

... the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[92] The test for determining whether a stay of proceedings is warranted in any case where an abuse of process is found to have occurred was set out in Babos, at para. 32:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

(2) There must be no alternative remedy capable of redressing the prejudice; and,

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”. [Citations omitted.]

In cases involving the residual category, “the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system”: Babos, at para. 35.

[93] In this case, evidence provided by the Crown indicates that the resource issues that affected the scheduling of Mr. Young’s bail hearing were caused by steps taken to address the pressing public interest in preventing the spread of the COVID-19 virus in congregate living facilities like the CECC, to protect the health and safety of the inmates and staff at the institution. The public health emergency that existed at the time of Mr. Young’s bail hearing no longer prevents in person court appearances. Evidence led by the Crown demonstrates that the Oshawa bail courts no longer experience the delays experienced by Mr. Young.

[94] The application for a stay of proceedings in this case fails at the first stage of the test because:

1. The state did not engage in conduct that is offensive to societal notions of fair play and decency. Rather, the state was faced with an unprecedented public health emergency that presented elevated risks to those in congregate living facilities, including jails. The delay in holding Mr. Young’s bail hearing was, in part, the result of good faith efforts to mitigate those risks. The delay was also caused by Mr. Young’s understandable wish to retain counsel for the bail hearing, and counsel’s unfamiliarity with local procedures. The fact that the defence did not raise the issue of the bail hearing delay until the second date set for the sentencing hearing “serves as a yardstick against which to measure just how serious [the state] conduct was perceived by the defence” (Babos, at para. 65). By that measure, the state conduct was not serious at all; and,
2. Proceeding with the sentencing of Mr. Young will not be harmful to the integrity of the justice system because the state conduct complained of ended more than two and a half years ago, when the risks of transporting prisoners to court for in person hearings had subsided. There is no need to dissociate the justice system from the impugned state conduct going forward. Continuing with Mr. Young’s sentencing hearing would not lend judicial condonation to the impugned conduct.

[95] The application to stay the proceedings because Mr. Young’s bail hearing was delayed is dismissed.

3. The Sentence to Be Imposed on Mr. Young

(a) The Positions of the Parties

[96] It is the position of the Crown that Mr. Young should receive a sentence of four years imprisonment, less credit for 11 days pre-sentence custody and a sentence reduction of four months at most to reflect Downes credit and consideration for Morris factors, for a net sentence of three and one-half years imprisonment. The Crown also seeks a s. 109 order for life, a DNA order, and a s. 743.21 order prohibiting Mr. Young from having any contact with his former co-accused, Justin Dyer, while he is in custody. The Crown relies on the decision of the Supreme Court of Canada in R. v. Nur, 2015 SCC 15, as establishing a range of three to five years as the appropriate sentence for possession of a loaded firearm.

[97] The defence submits that a sentence of two years less a day, to be served conditionally, followed by two years probation, would be an appropriate sentence. The defence agrees with the Crown that a six-month sentence reduction would appropriately reflect the pre-trial custody and Downes credit. The defence does not oppose the imposition of a s. 109 order but does oppose the making of a DNA order and a s. 743.21 order.

(b) The Facts of the Offences

[98] Mr. Young chose to arm himself in a vehicle driven on a public roadway with a concealed, loaded, deadly weapon - a loaded Colt 1927 Argentine semi-automatic handgun. The gun’s magazine was fully loaded and there was a round of ammunition in the chamber. The gun was ready to fire. He was also in possession of a large quantity of marijuana, scales, crack cocaine divided into two baggies and powdered cocaine divided into three baggies. The gun and the drugs were easily accessible to him as he sat in the backseat of a car in a populated urban area. Mr. Young was in possession of $750, comprising 1 x $50, 30 x $20, 3 x $10, and 8 x $5. In these circumstances, I find that the gun was a tool of the drug trade, that was ready to be used by Mr. Young to inflict lethal force when he felt a need to use it, and that it was readily accessible to him.

(c) The Background of Mr. Young

[99] Mr. Young was 29 years old at the time of the offences in 2022. He does not have a criminal record. He has a supportive family.

[100] I have the benefit of having both a pre-sentence report and an Impact of Race and Cultural Assessment (“IRCA”) in relation to Mr. Young.

[101] The IRCA provided me with a well researched, comprehensive, and compelling description of the widespread and pernicious effect of anti-Black racism, and how that racism has impacted Mr. Young. It helped me understand how Mr. Young was vulnerable to influences that contributed to his possession of a loaded handgun and drugs. However, aspects of the report were unhelpful. The author, at times, advocated on Mr. Young’s behalf. It also fell short by failing to consider the facts found following Mr. Young’s trial, that were easily accessible in my reasons for judgment. While these shortcomings failed to comply with the direction of the Court of Appeal in R. v. Morris, 2021 ONCA 680, paras 144-147 and undermined the general objectivity of the report, it did provide me with much useful information.

[102] Mr. Young was raised by his mother. His father lives in Trinidad and has little contact with Mr. Young. Mr. Young’s mother brought him up in the Church, where he and his older brother participated in the music ministry. Mr. Young took singing classes, was a member of the church choir, and played the drums and piano during the church services. He has fond memories of singing with his brother and playing soccer and basketball. He later became a basketball coach for the youth in his community.

[103] Mr. Young’s mother faces multiple health challenges, including multiple myeloma, and pneumonia. She has a pacemaker and requires dialysis. Mr. Young lives with his mother and takes care of her.

[104] It is submitted on behalf of Mr. Young that he is in a committed common law relationship, and that his common law partner is pregnant with his child. The pre-sentence report notes that Mr. Young’s marital status is “single”. The sources of information for the pre-sentence report do not include anyone who could be Mr. Young’s pregnant common law partner. Mr. Young told the author of the pre-sentence report that although he does not live with his girlfriend, she “often visits him”.

[105] Mr. Young and his brother were raised in a “very challenging neighbourhood,” which was filled with negative influences, according to his youth pastor and mentor. On one occasion, Mr. Young, his brother, and their friends, were robbed at gunpoint in their apartment.

[106] Within his family, Mr. Young has “a robust support system”, according to the author of the IRCA. Mr. Young and his brother received support from the church, school counselors, and a local recreation center. His mother remains “the central figure, providing emotional support and cultural guidance”.

[107] Mr. Young graduated from high school and attended some post-secondary education but discontinued his studies due to his mother’s illness.

[108] Mr. Young worked at summer jobs, beginning when he was 14 years old. Between 2017 and 2020 he was self-employed, running a marketing company that promoted businesses. His business did not survive the pandemic. He is currently unemployed and receives social assistance. As the author of the IRCA explained: “Growing up in a low-income neighbourhood with limited access to resources, he has faced barriers in education, employment, and housing. The high cost of living, combined with racial discrimination in hiring practices, has made financial stability a persistent struggle.”

[109] Mr. Young told the author of the pre-sentence report that on the day of his arrest, he visited a strip club and consumed two to three shots and three beers, causing him to be intoxicated at the time of his arrest. He reported that he is a social drinker, typically consuming alcohol four times a week, but does not view it as a problem. Additionally, he stated that he smokes one or two marijuana (weed) joints per day.

[110] Mr. Young’s prospects for rehabilitation are diminished by his deflection of blame for his situation. The account he provided to the author of the IRCA simply does not accord with what happened:

"I was just there... just chilling, and then suddenly the police started circling us." … He further reflected on how police tactics and racialized assumptions – particularly those affecting young Black men in his community – shaped the events of that night. (IRCA, p. 6)

[111] It is unfortunate that the author of the IRCA based his report only on an interview with Mr. Young and a review of the pre-sentence report, and not on my reasons for judgment that describe in detail what we all saw in court as the body-worn camera recordings of the police officers were played. It also appears that the author of the pre-sentence report was not aware of my finding of fact that racial profiling played no role in the police investigation in this case. To be clear, I accept without reservation the observation of the author of the IRCA that a pattern of racial profiling has disproportionately affected members of Mr. Young’s demographic. But the investigation at issue in this case was not affected by racial profiling.

(d) The Applicable Range of Sentence

[112] Crown and defence counsel agree that where possession of a gun is associated with other criminal activity, the range of sentence is typically three to five years. Similarly, there is no dispute that sentencing ranges are guidelines, not rules.

[113] While ranges provide guidelines, every case is unique, and thus sentencing is a highly individualized exercise. This was confirmed by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, para 58:

[T]he fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

[114] In Nur, the Supreme Court of Canada upheld a sentence of 40 months imprisonment, imposed on an “impressive young man” who had no prior criminal record.

[115] In Morris, at para. 71, the Court of Appeal explained that sentences for unlawful possession of loaded handguns in public places must emphasize denunciation and general deterrence:

Canadian courts have long recognized that the gravity of certain kinds of offences requires sentences emphasizing denunciation and general deterrence. Gun crimes involving the unlawful possession of loaded handguns in public places fall squarely within that category. McLachlin C.J., in Nur (SCC), at para. 82, observed that a three-year sentence may be appropriate “for the vast majority of offences” under s. 95. [Citations omitted.]

[116] In Morris, at para. 68, the Court of Appeal described the dangers posed by those who possess loaded handguns in public places:

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. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. 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.]

[117] The Ontario Court of Appeal has repeatedly stressed that general deterrence and denunciation are the primary objectives for offences involving the possession of a concealed firearm in a public place: R. v. Burke-Whittaker, 2025 ONCA 142, para 37; R. v. Stephens, 2024 ONCA 793, para 18; R. v. Stojanovski, 2022 ONCA 172, para 114; R. v. Danvers, paras 77-78; R. v. Brown, 2010 ONCA 745, para 14.

[118] In Burke-Whittaker, at para. 38, the Court of Appeal observed that “given the seriousness of the offence and the need for denunciation and deterrence, this court has stated that incarceration will almost always be required: Morris, at para. 71. In the normal course, the sentencing range begins at the low end of the penitentiary range for first-time offenders convicted of possessing a loaded prohibited firearm in circumstances where there is no other criminal activity.”

(e) A Just Sentence

[119] “The gravity or seriousness of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. Accordingly, unlike when assessing the offender’s degree of personal responsibility, an offender’s experience with anti-Black racism does not impact on the seriousness or gravity of the offence”: Morris, at para. 13.

[120] “Possession of a loaded, concealed handgun in public is made no less serious, dangerous, and harmful to the community by evidence that the offender’s possession of the loaded handgun can be explained by factors, including systemic anti-Black racism, which will mitigate, to some extent, the offender’s responsibility”: Morris, at para. 76.

[121] Mr. Young’s possession of a loaded, ready-to-fire, concealed handgun and cocaine, in circumstances that associated the gun to the drug trade, while riding in a vehicle on a public roadway was a very serious crime. His conduct put members of the community and police officers engaged in the lawful execution of their duties at risk of serious harm.

[122] The information provided in the IRCA about the negative effects of anti-Black racism on Mr. Young contribute to my understanding of Mr. Young as a person and member of society. What that information does not do is provide me with any explanation why Mr. Young possessed a loaded and ready-to-fire handgun, together with cocaine, as he was driven about the streets of Whitby during the early morning hours. In some cases, social context evidence may provide information that mitigates the offender’s responsibility or culpability for the offence. But, as the Court of Appeal explained in Morris, at para. 97,

There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount. [Citations omitted.]

[123] For example, in Morris, the social context evidence supported other evidence that Mr. Morris, who had been the victim of a stabbing, feared the people around him in his community, demonstrating that his fears were real, justified and existed, in part, as a result of systemic racism that played a role in shaping his perception of his community, his relationship with others in the community, and his relationship with the police. The social context evidence in Morris provided an explanation for, and was thereby connected to, his possession of a loaded gun that mitigated his personal responsibility and culpability for the offence.

[124] I have considered the information provided in the IRCA to assess how the competing objectives of sentencing that Mr. Young’s sentence must reflect, such as rehabilitation and denunciation, can best be blended to produce a sentence that is proportionate to the gravity of the offences and Mr. Young’s degree of responsibility, and that addresses Mr. Young’s needs and potential.

[125] Mr. Young’s possession of the gun, in the circumstances of this case, falls at the “true crime” end of the spectrum of s. 95 offences. There was clear evidence that Mr. Young possessed the gun as a tool of the drug trade.

[126] There are mitigating factors in this case:

(i) Mr. Young is a first offender;
(ii) Mr. Young is young (29 years old at the time the offences were committed), though I do not characterize him as a youthful offender, and therefore he has better rehabilitative prospects than an older offender who may be less amenable to change;
(iii) Mr. Young has personal strengths that enable him to contribute positively to the community. He is intelligent and has good community supports.
(iv) Any custodial sentence served by Mr. Young will create hardship for his mother, for whose care he is responsible. The fact that Mr. Young has been assisting his mother is a mitigating factor because it shows his good character and demonstrates his rehabilitative prospects: R. v. Habib, 2024 ONCA 830, para 47.

[127] These mitigating factors cause me to temper the sentence I would otherwise impose for Mr. Young’s very serious offences.

[128] Mr. Young’s possession of the loaded, ready to fire, semi-automatic handgun was a serious criminal offence that created a real risk to public safety. The sentence imposed must unambiguously denounce such conduct and deter others who would choose to arm themselves with lethal weapons in public spaces or in vehicles. The mitigating factors in this case permit me to impose a sentence at the lower end of the generally appropriate range.

[129] The sentence to be imposed in this case, before credit is given for 11 days of pre-sentence custody and Downes credit, is a global sentence of three years imprisonment. Crown and defence counsel agree that a six-month reduction for pre-sentence custody and Downes credit is appropriate. I agree. In coming to this conclusion, I have given enhanced credit for the 11 days of pre-sentence custody because Mr. Young’s bail hearing was delayed, and because his time spent in custody occurred when lockdowns were especially frequent and lengthy to address the COVID-19 pandemic. While the latter issue did not amount to a Charter infringement, it remains the case that the conditions in which Mr. Young spent his pre-sentence custody were unusually harsh. The circumstances of the Charter infringements that I found occurred in relation to Mr. Young’s right to counsel do not amount to the type of state misconduct that warrants a sentence reduction.

[130] The sentence will be apportioned to the offences of which Mr. Young has been convicted as follows:

1. Count 1: Unauthorized possession of a firearm in a motor vehicle contrary to s. 94(1) of the Criminal Code: 3 years less credit for 6 months, to reflect 11 actual days of pre-sentence custody and restrictive bail conditions;
2. Count 2: Possession of a prohibited or restricted firearm with ammunition contrary to s. 95(1) of the Criminal Code: 3 years less credit for 6 months, concurrent with Count 1;
3. Count 3: Possession of cocaine contrary to s. 4(1) of the Controlled Drugs and Substances Act: 6 months concurrent with Counts 1 and 2.

The net sentence remaining to be served is a total sentence of 2 years and 6 months.

[131] In addition, it is ordered, pursuant to s. 109 of the Criminal Code, that Mr. Young is prohibited from possessing any firearm or other weapon specified in the order, for life.

[132] The firearms offences of which Mr. Young was convicted are secondary designated offences for the purpose of the DNA databank provisions of the Criminal Code. I may order that Mr. Young provide a sample of a bodily substance for the purpose of forensic DNA analysis only if I am satisfied that it is in the best interests of justice to do so. I must consider that Mr. Young had no prior criminal record, the nature of the offence and the circumstances of its commission, and the impact such an order would have on Mr. Young’s privacy and security of the person. While Mr. Young has no criminal record, the offences of which he has been convicted are extremely serious. While no violence was used in the commission of those offences, the offences reflect a willingness and ability on the part of Mr. Young to use lethal violence. The impact of an order on Mr. Young’s privacy and security of the person would be insignificant. The considerations that favour making the order sought by the prosecution outweigh those that militate against making the order. I am satisfied that it is in the best interests of justice that a DNA order be made. It is ordered that Mr. Young provide a sample of a bodily substance for the purpose of forensic DNA analysis.

[133] I decline to make an order prohibiting Mr. Young from communicating with Mr. Dyer while Mr. Young is serving the custodial portion of his sentence. Mr. Dyer was acquitted following his trial. There is no evidence before me that his antecedents are a cause for concern or that he will undermine Mr. Young’s rehabilitation, which is the reason why the Crown submits that a s. 743.21 order should be made.

The Honourable Justice J. Speyer
Released: June 30, 2025