Sentencing Decision

Court File No.: CR-23-30000361
Date: 2025-05-15
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Tutshuma (Paul) Munda

Rhianna Woodward, for the Crown
Brendan Monk, for Tutshuma (Paul) Munda
Heard: March 14 and April 7, 2025
Judge: Sidney N. Pinto

Overview

[1] On December 17, 2024, I convicted Paul Munda of eight firearm related offences:

• Count 1: Possession of a restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 91(1) of the Criminal Code.
• Count 2: Possession of a loaded restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 95 of the Criminal Code.
• Count 3: Possession of a prohibited device, namely an Overcapacity Firearm Magazine, while knowingly not being the holder of a license, contrary to s. 92(2) of the Criminal Code.
• Count 4: Carrying a firearm in a careless manner, contrary to s. 86(1) of the Criminal Code.
• Counts 5 and 6: Two counts of possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code.
• Count 7: Failure to comply with a release order, contrary to s. 145(5)(a) of the Criminal Code.
• Count 8: Failure to comply with a probation order, contrary to s. 733.1(1) of the Criminal Code.

[2] The Crown seeks a total sentence of seven years prior to the consideration of a sentencing reduction or the application of credits.

[3] The Defence seeks a global sentence of 5 years prior to the consideration of an appropriate reduction in sentence due to a Charter breach and the application of various credits.

[4] For the reasons that follow, I sentence Mr. Munda to 5.5 years imprisonment. After deducting 51 months of credit for pre-sentence custody, he must serve an additional 15 months in custody. Certain ancillary orders shall also apply.

Circumstances of the Offences

[5] In the early morning hours of July 20, 2022, police officers executed a search warrant on a townhouse unit in Oshawa. Police believed that up to three suspects connected with a homicide committed in Toronto a month earlier were in the unit. Shortly after police entered the unit, they used a taser three times on Mr. Munda. After he was handcuffed, a police officer kicked him in the face. Police located a loaded firearm in his shorts.

[6] When police entered the unit, Ade Munda, Paul’s younger brother, jumped over a balcony at the back of the townhouse landing in a laneway 15 feet below. A police officer happened to be in the laneway. The officer gave a verbal warning to Ade Munda before firing his service weapon and shooting Ade Munda twice in the leg. Ade Munda was transported by ambulance to the hospital and survived.

[7] Paul and Ade Munda were charged with several firearm related offences. They each brought an application alleging breaches of the Canadian Charter of Rights and Freedoms. My reasons for decision on the Charter applications are reported at R. v. Munda, 2025 ONSC 1386.

[8] In Paul Munda’s Charter application, he sought to exclude the evidence against him as a remedy under s. 24(2). I found that police were justified in tasing him three times, but that the officer’s kick to his face constituted excessive force in breach of his s. 7 Charter rights. I also found that a police delay of 22 minutes in contacting his choice of counsel constituted a breach of his s. 10(b) Charter rights. I declined to exclude the evidence against him but found that he should receive a reduction in sentencing if convicted.

[9] Following my December 6, 2024 ruling on his Charter application, Mr. Munda re-elected to a judge-alone trial before me. He pleaded not guilty to all charges. The parties consented to using the evidence from his Charter application for his trial and neither party called additional evidence. On December 17, 2024, I found Mr. Munda guilty of the eight firearm related offences and set a date for his sentencing.

[10] Ade Munda was tried separately before a judge and jury and was convicted of firearm related offences.

Circumstances of the Offender

Pre-Sentence Report

[11] A Pre-Sentence Report (PSR) was prepared by Nirmala Muthyala, a Probation and Parole (P&P) officer, dated March 12, 2025.

[12] Mr. Munda was born in Toronto on May 8, 2001. He was 21 years old at the time of his arrest in July 2022 and 24 at the time of sentencing. He is Black. He is the third of five sons born to parents who immigrated to Canada from Democratic Republic of Congo.

[13] He reported that he was raised in a tumultuous and abusive family environment, marked by a lack of peace, significant trauma, and pervasive fear. His childhood was extremely challenging and he experienced abusive behaviour from his father that included physical beatings and provocation. He reported that his father provided minimum financial support to the family, resulting in his mother having to shoulder the responsibility of ensuring that the family’s basic needs were met.

[14] Mr. Munda reported that due to the abusive environment at home, he left home at the age of 15 and began staying in storage units, laundry rooms, McDonald restaurants, and occasionally with friends. He started stealing to survive and his activities escalated into major criminal activities.

[15] Despite leaving home, Mr. Munda continued to have contact with his mother and brothers. His parents separated in 2016. His mother continued to take care of the five children and his father remarried. One older brother and one younger brother live with his mother. A second older brother is living in another province, and a second younger brother, Ade, was his co-accused in the July 2022 incident that led to their convictions.

[16] Mr. Munda reported experiencing discrimination and harassment from police and feeling constantly targeted. He felt that police were always looking for reasons to arrest him, which led to a fear of police rather than feeling protected. Police also often conducted random searches on him. On one occasion, he reported that police directed their dog to bite his shoulder, resulting in him being scarred. As I found in my Charter ruling, in July 2022, a police officer kicked him in the face while he was handcuffed.

[17] The P&P officer interviewed Mr. Munda’s mother who reported that Mr. Munda was raised in an unhealthy home environment. She indicated that the father often intimidated Mr. Munda and physically and verbally abused him. Mr. Munda ended up staying away from home and associating with friends who were a negative influence on him. Eventually, in 2016, Mr. Munda’s mother left the family home as she could no longer endure her husband’s harassment.

[18] The P&P officer also interviewed Mr. Munda’s brother who believed that Mr. Munda’s criminal activities were largely influenced by his extremely challenging upbringing caused by his father’s abusive behaviour.

[19] Mr. Munda completed his grade 12 education while in custody. He is on a waiting list to study business in college. While in school, he was suspended a few times, but never expelled. Due to being in and out of jail, he has never been employed.

[20] Mr. Munda reported that from the ages of 15 to 18, he was using five Parkinson’s tablets and 7 grams of marijuana daily, and drinking alcohol. At 18, he started feeling mentally unstable due to substance abuse and was incarcerated at the same time. His incarceration helped him overcome his substance abuse issues. He now confidently asserts that he no longer has any substance abuse problems and this is confirmed by his mother and brother.

[21] The PSR notes that Mr. Munda grew up in a neighbourhood where there were incidents of shootings, gun violence, and drug trafficking. Shortly before his arrest in July 2022, two of his friends were killed due to gun violence. He had spoken to one of his friends on FaceTime just 30 minutes before his death.

Mr. Munda’s Criminal Record

[22] Mr. Munda has a significant youth criminal record:

• (a) In August 2017, he was convicted in Oshawa of two counts of failure to comply with a recognizance and a single failure to attend court. He received 15 months of probation.
• (b) In August 2017, he was convicted in Toronto of theft of a motor vehicle and failure to comply with a recognizance. He received 15 months of probation.
• (c) In August 2017, he was convicted in Scarborough of assault with intent to steal and possession of a weapon. Again, he received 15 months of probation and a mandatory weapons prohibition order.
• (d) In August 2019, he was convicted in Kitchener of assault causing bodily harm. He received 18 months of probation and another mandatory weapons prohibition order.
• (e) In August 2019, he was convicted in Toronto of possession of a controlled substance and failure to attend court. He received 12 months of probation.

[23] Mr. Munda’s adult criminal record consists of:

• (a) A conviction in Peterborough in the Ontario Court of Justice on June 2, 2022 for possession of a prohibited firearm, obstruction, possession of a firearm while prohibited, and a failure to comply with a release order. Mr. Munda received a jail sentence of 2 years equivalent to 2 years pre-sentence custody which was noted on his record as a suspended sentence and probation order for 2 years.
• (b) A conviction in Thunder Bay in the Superior Court of Justice (SCJ) on December 22, 2022 for possession of a controlled substance for the purpose of trafficking. He received a sentence of 17 months and two mandatory weapons prohibition orders under s. 109 of the Criminal Code. He received a credit of 11 months and 15 days for pre-sentence custody.
• (c) A conviction in Toronto in the SCJ for assault on June 21, 2023. Mr. Munda was in custody at the time and received a sentence of 10 days concurrent with the sentence being served.

Sentencing Position of the Crown

[24] The Crown seeks a total sentence of seven years prior to the consideration of a sentencing reduction or the application of credits.

[25] The Crown’s position is based on:

• (a) A six-year jail sentence for the section 95 firearm offence, with the other firearm offences either being stayed pursuant to the Kienapple principle, or their sentences being served concurrently;
• (b) A one-year jail sentence for the first breach of the weapons prohibition order to be served consecutive to the sentence for the s. 95 offence; and a one-year jail sentence for the second breach of the weapons prohibition order to be served concurrently.

[26] The Crown submits that a sentencing reduction of six months to one year is appropriate in light of the excessive use of police force: R. v. McAlpine, 2024 ONSC 797, per Stribopoulos J.

[27] Additionally, the Crown seeks:

• A DNA order under s. 487.051(3) of the Criminal Code as the s. 95(1) conviction is a secondary designated offence;
• An order that Mr. Munda be prohibited from carrying or applying for weapons for life, pursuant to section 109 of the Criminal Code; and
• A forfeiture order.

[28] The Crown acknowledges that Mr. Munda had a very difficult upbringing and that as a racialized individual, he belongs to a vulnerable population that is overrepresented in the criminal justice system: Criminal Code, R.S.C. 1985, c C-46, s. 492.3. However, the Crown submits that it is highly aggravating that a little over a month after he was convicted in Peterborough of firearms offences and prohibited from possessing a firearm, Mr. Munda was again found in possession of a loaded restricted weapon on July 20, 2022 in Oshawa. The Crown submits that since Mr. Munda has been convicted before of firearms related offences, he should now be sentenced as a prohibited firearm recidivist and receive a sentence in the range of six to nine years: R. v. Graham, 2018 ONSC 6817, at paras. 39 to 40, aff’d 2020 ONCA 692; R. v. Owusu, 2024 ONSC 671, at para. 30.

[29] Further, the Crown submits that the sentence for breach of the weapons prohibition order should be consecutive to the sentence for the s. 95 offence: Graham, at para. 41.

[30] The Crown submits that the appropriate reduction in sentence is six months to a year given that the unreasonable police conduct, a kick to Mr. Munda’s face, was not as egregious as the police misconduct in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206. There, the police punched the offender in the head and twice in the back, resulting in broken ribs and a punctured lung. Although the offences in Nasogaluak would have ordinarily drawn a custodial sentence of between 6 and 18 months, the trial judge granted a conditional discharge and a one-year driving prohibition. The Alberta Court of Appeal substituted the statutorily prescribed minimum fine. The Supreme Court dismissed the appeal, concluding that the Court of Appeal had crafted a fit sentence: Nasogaluak, at para. 65.

Sentencing Position of the Defence

[31] The Defence agrees that the sentencing range for prohibited firearm recidivists is 6 to 9 years. However, the Defence asserts that sentencing ranges serve as “guides for the application of all the relevant principles and objectives”, not as “straightjackets”: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57-58. The Defence submits that the appropriate sentence for Mr. Munda is a global sentence of 5 years prior to the consideration of an appropriate reduction in sentence due to the Charter breach and the application of various credits.

[32] The Defence submits that a sentencing reduction of 18 months to two years is appropriate given that Mr. Munda was kicked in the face while handcuffed and that the officer lied to the court about his conduct.

[33] The Defence highlights Mr. Munda’s youth, his extremely challenging childhood with an abusive father, his lack of employment, and his experience of losing friends to gun violence. The Defence submits that its sentencing request does not offend established sentencing principles which include restraint, rehabilitation, and recognition of the systemic discrimination and over-incarceration faced by Black men in Canada. The appropriate sentence is one that recognizes Mr. Munda’s difficult personal circumstances.

[34] The Defence also argues that although Mr. Munda did not plead guilty, he avoided a full-blown trial by permitting the evidence in the Charter application to apply at trial. This factor constitutes a degree of mitigation, albeit not as much as a guilty plea.

[35] Ultimately, the Defence argues that once Mr. Munda’s harsh lockdown conditions are considered along with the totality of his personal circumstances, he should receive a custodial sentence of three and a half to four years. This will be Mr. Munda’s first penitentiary sentence and it should not be unduly harsh.

[36] The Defence does not object to the ancillary orders requested by the Crown.

[37] Both the Crown and Defence presented several authorities to support their overall sentencing positions.

Applicable Case law

Appropriate range for repeat s. 95 offences

[38] I agree with the comments of Charney J. in R. v. Cole, 2024 ONSC 4243, at paras. 56-62. In Cole, Charney J. stated that the sentences for prohibited firearm recidivists range from six to nine years, and that sentences for breaches of s. 109 orders should be served consecutively to any substantive offence.

As I review the cases, sentences for prohibited firearm recidivists range from six to nine years: see the sentences reviewed in R. v. Dawkins, 2021 ONSC 4526, R. v. McNichols, 2020 ONSC 6499, at paras. 20-29 and R. v. David, 2019 ONSC 3758, at paras. 27-28. In R. v. Graham, 2018 ONSC 6817, Code J. summarized the range for s. 95 recidivists at para. 39:

In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases in R. v. Hector, 2014 ONSC 1970. He noted that in R. v. Charles (2013), 2013 ONCA 681 and in R. v. Chambers, 2013 ONCA 680, the Court of Appeal upheld sentences of seven years and eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders. MacDonnell, J. implicitly held that the cases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94, the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two year consecutive sentence for breach of prohibition orders. A number of recent cases in this Court have imposed total sentences of eight and nine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. J.G. [2005] O.J. No. 4599 (S.C.J.); R. v. Alexander 2012 ONSC 6117; R. v. Dunkley [2014] O.J. No. 3062 (S.C.J.).

In the present case, the number and type of firearms, including three loaded handguns, each with an overcapacity magazine, two of which had been converted to automatic weapons, and a fourth overcapacity magazine, all of which were discarded in a public place by Mr. Cole in order to hide them from the police, places Mr. Cole within the six to nine year range as a s. 95 recidivist.

Sentences at the higher end of the range appear to be reserved for offenders with even longer records than Mr. Cole, or cases where the gun was discharged, or cases where there was also a conviction for possession for the purposes of trafficking. Sentences below six years appear most commonly where there has been a guilty plea.

Sentences for breaches of s. 109 orders should be served consecutively to any substantive offence: R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598:

In the absence of a consecutive sentence, the accused effectively receives no greater punishment as a result of his clear violation of a previous court order. The intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.

See also: R. v. Graham, 2018 ONSC 6817, at para. 41:

I am of the view that the sentences for breach of the two s.109 orders should be consecutive to the sentence for the s.95 offence. I adopt the reasoning of the leading authorities in this Court, to the effect that separate punishment is required if court orders are to have real meaning.

See also: R. v. Chambers, 2013 ONCA 680, at paras. 20-22.

The range for s. 109 offences appears to be 6 months to 2 years, consecutive to the sentence for the firearms offence.

Comparable Cases

[39] In R. v. Brown, [2019] O.J. No. 2846, the offender received a global 7-year sentence after pleading guilty to possession of a loaded prohibited firearm and breach of a weapons prohibition order. He was found with a loaded firearm concealed in his waistband. He was previously convicted of possessing of a loaded firearm in 2010, at which time he was placed on a weapons prohibition order. He was 28 years old at the time of the offences and 30 years old at the time of sentencing. The offender was born to a 16-year old mother who raised him and three other children on her own. The offender discontinued his education after Grade 9. He had two children of his own aged two and four. Kelly J. agreed that the sentence for breaching the court order must be consecutive. She held that, but for the principle of totality and the guilty plea, she would have imposed a sentence of 9 years.

[40] In R. v. Carrol, 2014 ONSC 2063, the offender was convicted of 6 offences related to the possession of a prohibited weapon, three weapons prohibitions orders, and breaching the conditions of two separate probation orders. He received a 6-year global sentence. He was 23 years old at the time of the offences and almost 28 years old at the time of sentencing. The offender was sitting in a garage behind a townhouse complex and a loaded handgun was found under his seat cushion. Molloy J. held that although the garage was not a “public place” in the same sense as a shopping mall, or public street, it was also not a strictly private location. Rather, it was a place where a number of individuals regularly met to socialize. The offender had a history of repeated conflict with the law beginning at the age of 14, with many offences involving drugs, violence, and possession of prohibited weapons. A sentence of 4.5 years’ imprisonment was imposed for the firearm possession offence, with an additional 18 months of consecutive imprisonment for breaching a prohibition order and a probation order. The offender had a Grade 12 education and sporadic employment in landscaping and construction. He was born in Jamaica where his mother and three siblings resided. He had never known his biological father.

[41] In R. v. Noor, 2024 ONSC 6026, Nishikawa J. found a 28-year old offender guilty of unlawful possession of a loaded handgun, unlawful possession of a firearm while being prohibited from doing so, breaching a prohibition order, and failing to comply with bail. The offender received a global sentence of 7.5 years based on 6.5 years for the firearm offence, and 12 months for the two breaches of the weapons prohibition orders and for failing to comply with a release order. The offender was born in Kenya and moved to Canada at the age of six months. He was one of five siblings. He grew up in an area of Toronto that is known for gun violence and robberies. When he was 10 years old, he moved to Somalia for one to two years, where he was surrounded by poverty and violence in the context of a civil war that was raging. In Somalia, he witnessed violence, instability, extreme poverty and people killed for stealing. The offender’s parents had a toxic relationship and his father moved in and out of the family’s life. He felt racially profiled by police and believed he was denied medical care in prison because of his race. Despite disadvantaged circumstances, he gained admission to university which demonstrated his potential for rehabilitation.

[42] In R. v. Kumi, 2025 ONCA 3, the Court of Appeal upheld a trial judge’s sentence of seven years and seven months’ imprisonment which included a six-year sentence for firearms possession. The trial judge considered the offender’s lengthy and uninterrupted criminal record, including convictions for carrying a concealed weapon and committing a murder using a gun as a youth, and repeated breaches of weapons prohibitions.

[43] The Defence relied on a number of decisions in support of its sentencing position. However, I did not find the cases to be on point. In R. v. Ahmed, 2021 ONSC 8157, Schreck J. convicted a 40-year old offender of possession of a loaded prohibited firearm without authorization and several other firearm related offences, including three counts of possessing a firearm while prohibited from doing so. The offender was also convicted of two counts of assault. He received a total sentence of three years and four months. It had been eight years since his last conviction, which occurred after a previous gap of five years. Schreck J. accepted that the consumption of alcohol played a role in both the 2013 offences as well as the assault offences. Schreck J. also held that the offender’s personal history, including the social context in which it unfolded, provided a basis upon which to give “added weight to the objective of rehabilitation and less weight to the objective of specific deterrence”: R. v. Morris, 2021 ONCA 680, at para. 81. While Mr. Munda, like the offender in Ahmed came from a disadvantaged background, the “gap principle” does not apply to Mr. Munda. Further, Mr. Munda’s prospects for rehabilitation are more guarded as he has been involved almost continuously in the criminal justice system for roughly the last decade.

[44] In R. v. Beharry, 2022 ONSC 4370, the offender was sentenced to a conditional sentence of two years less a day. He was convicted of possession of a firearm without being the holder of a licence, possession while knowingly not being the holder of a licence, and occupying a motor vehicle knowing that a firearm was in it. However, unlike Mr. Munda, Mr. Beharry had no prior criminal record.

[45] The Court of Appeal of Manitoba’s decision in R. v. Parker, 2023 MBCA 51 is also distinguishable. In Parker, the court upheld a conditional sentence of 21 months less a day, followed by three years of probation, after deducting pre-sentence custody. The accused plead guilty to possession of a loaded prohibited firearm, possessing a firearm contrary to two prohibition orders, and an assault: Parker, at para. 1. He also had a criminal record that demonstrated a link between his drug use and criminal behaviour. At the time of sentencing, the accused had completely turned his life around: Parker, at paras. 22-24. During the 2.5 years between the offence and sentencing, Mr. Parker sought treatment for his addiction, became an “excellent employee and a leader” in his workplace, and developed a strong support system which he relied upon to successfully navigate setbacks: R. v. Parker, 2022 MBQB 66, at paras. 42-44. Mr. Munda has not taken any steps to indicate his rehabilitative potential, let alone the transformative change in Parker that provided a foundation for the court decision to deviate from the normal range of sentence.

[46] The evidence and circumstances of the offender in R. v. Bowen, Dale, 2024 ONSC 6189 are also distinguishable and offer little guidance. Mr. Bowen was sentenced to 56 months in custody after pleading guilty to possession of a loaded restricted firearm, possession of a firearm while prohibited, and possession for the purpose of trafficking cocaine. He came before the court with plans for employment, a strong support system, eight certificates from educational programming, and expressed that he no longer believed a gun would protect him – which was his prior motivation for owning one. Significantly, he had no prior firearms-related convictions: Bowen, Dale, at para. 40. Mr. Munda has neither demonstrated the same insight into his offending behaviour nor taken steps to demonstrate his prospects for rehabilitation. Unlike Mr. Bowen, he also comes before the court as a prohibited firearm recidivist.

[47] In R. v. Acheampong, 2018 ONCJ 798, the offender was sentenced to 5.5 years of imprisonment on the robbery count and 44 months of concurrent imprisonment for possession for the purpose of trafficking. The initial 7.5-year sentence was subject to a 2-year reduction to address the physical harm Mr. Acheampong experienced due to the police’s use of excessive force, the time it took him to recover, and the harm to the administration of justice. Although I note the relevant principles in the excessive force analysis, the decision involved different underlying offences and is therefore distinguishable.

Mitigating and Aggravating Factors

Mitigating Factors

[48] Mr. Munda is a young man. He is being sentenced at the age of 24 for offences that he committed in July 2022 at the age of 21.

[49] He has experienced a very difficult childhood, adolescence, and early childhood as a result of an abusive father who divorced from his mother in 2016. He grew up in a neighbourhood where there were incidents of shootings, gun violence, and drug trafficking. He has experienced the loss of close friends to gun violence.

[50] His mother was financially responsible for the care of Mr. Munda and his four brothers.

[51] He left home at the age of 15 and lived in unstable environments making him vulnerable to and a participant in criminality.

[52] Between the ages of 15 and 18, he had a substance abuse problem that he has overcome.

[53] Once I ruled on his Charter application and declined to exclude the evidence against him, he did not insist on a full-blown trial. I note, however, that this mitigating factor has limited value as the case against him was overwhelming: R. v. E.H., 2024 ONCA 74, at para. 46.

[54] Mr. Munda’s interactions with police have led him to believe that he been singled out and treated unfairly due to his race. He does not believe police are there to protect him.

[55] Mr. Munda’s mother and brothers are in contact with him and appear to be supportive of him.

[56] There is no evidence that Mr. Munda is affiliated with a gang or other organized criminal activity.

[57] He has completed his Grade 12 education in custody.

[58] He appeared to act respectfully and cooperatively with the P&P officer on his PSR. He apologized for his behaviour in open court.

Aggravating Factors

[59] It is highly aggravating that a little over a month after Mr. Munda was convicted of firearm possession and prohibited from possessing a firearm in Peterborough, he did so again in Oshawa. He carried a restricted Glock firearm loaded with ammunition and an extended magazine in his shorts.

[60] He testified that a few days before the current offences, he had attended a friend’s funeral in Toronto. His best friend who he had known from childhood, and another friend, had been shot and killed the month prior in a bar in Oshawa. Yet, Mr. Munda still decided to arm himself. Troublingly, it appears that his recent conviction and his multiple weapons prohibitions orders had little to no impact on this dangerous way of thinking.

[61] Mr. Munda, though still young, already has a significant criminal record. His adult criminal record involves firearm and drug trafficking offences and failure to comply with a weapons prohibition order. His youth criminal record includes convictions for theft and assault. He has convictions in Toronto, Thunder Bay, Peterborough, and Oshawa.

[62] Mr. Munda has never been employed and, while in custody, he has been convicted of assault.

[63] Overall, I find the prospects of Mr. Munda’s rehabilitation are guarded. I find that, without a structured and fairly intensive intervention through grief/trauma, employment, and anti-criminal thinking counselling, there is a significant likelihood that Mr. Munda will reoffend.

Sentencing Decision

[64] I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender’s prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.

[65] Mr. Munda is a prohibited firearm recidivist. He was convicted as an adult in June 2022 for possession of a prohibited firearm. I find that a sentence of six years is appropriate for the s. 95 offence and that the s.91(1) offence should be stayed pursuant to the Kienapple principle. The sentences for the possession of a prohibited device (s. 92(2)), carrying a firearm in a careless manner (s. 86(1)), failure to comply with a release order (s. 145(5)(a)), and failure to comply with a probation order (s. 733.1(1)), should be served concurrently to the sentence for the s. 95 offence.

[66] A six year sentence for the s. 95 offence is at the bottom of the well-established range for prohibited firearm recidivists. I have taken into account the principle of restraint and that Mr. Munda is a young Black man. I also recognize that he had a difficult family upbringing with an abusive father, and a mother who raised five boys on her own after her husband left the family.

[67] A six year sentence for the s. 95 offence satisfies the principle of parity and is consistent with the Brown, Carrol, and Noor decisions which involved racialized, disadvantaged young offenders who had been convicted with a previous record for firearm offences. Brown and Noor received sentences of 7 and 7.5 years respectively and committed their offences at the age of 28. Mr. Munda was considerably younger at 21. Unlike Mr. Munda, Brown pleaded guilty and would have received a higher sentence had he not done so. The Carrol decision, where the offender received a 4.5 year custodial sentence for the firearm possession offence, was released in 2014, prior to the Court of Appeal affirming that the sentencing range for prohibited firearm recidivists was 6 to 9 years.

[68] I find that Mr. Munda should receive a one-year sentence for the two breaches of the s. 109 orders (i.e. two breaches of s. 117.01(1) of the Criminal Code) and that this one-year sentence should be served consecutively to the sentence for the s. 95 offence: R. v. Ellis, 2013 ONSC 3092, at para. 30, aff’d 2016 ONCA 598. Accordingly, Mr. Munda would serve a total sentence of 7 years for all the firearms and failure to comply offences prior to the Nasogaluak reduction in sentencing, consideration of any other applicable sentencing principles, and the application of credits.

[69] One of the sentencing principles that applies to Mr. Munda is the “jump principle.” In R. v. Parker, 2024 ONCA 591, the Court of Appeal explained that:

The jump principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent past, provided the subsequent offence is not significantly more serious: R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39; R. v. Green, 2021 ONCA 932, at para. 11. The court has clearly explained that the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”: Borde, at para. 39; Green at para. 12.

[70] In June 2022, Mr. Munda was convicted of possession of a prohibited firearm, and possession of a firearm while prohibited, among other offences. For these offences he received the equivalent of 24 months pre-sentence custody which was noted on his record as a suspended sentence and probation for 2 years. I find that it would offend the “jump principle” to go from a two-year sentence for the June 2022 conviction to a sentence of six years for essentially the same offence in July 2022. Accordingly, Mr. Munda’s sentence should be adjusted somewhat.

[71] Defence counsel also seeks recognition for the harsh conditions of pre-sentence custody given that Mr. Munda experienced 169 days of lockdowns at the Toronto South Detention Centre. The lockdown records indicate that 123 of the 169 days were ones in which there was a lockdown for the full day. Since R. v. Marshall, 2021 ONCA 344, harsh conditions of pre-sentence custody are properly viewed as a mitigating circumstance, and not a credit.

[72] In recognition of the “jump principle” and the harsh conditions at the Toronto South, I would reduce somewhat the 7 year sentence for Mr. Munda and find that a global sentence of 6.5 years is appropriate prior to the application of any reduction in sentencing due to breach of his s. 7 Charter rights.

[73] But for the excessive use of force by police in arresting Mr. Munda, I would have imposed a sentence of 6.5 years imprisonment. I would have apportioned the sentences as follows:

• Count 1 – Possession of a restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 91(1) of the Criminal Code. Stayed pursuant to R. v. Kienapple.
• Count 2 – Possession of a loaded restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 95(1) of the Criminal Code – 5.5 years.
• Count 3 – Possession of a prohibited device, namely an Overcapacity Firearm Magazine, while knowingly not being the holder of a license, contrary to s. 92(2) of the Criminal Code – 6 months concurrent to Count 2.
• Count 4 – Carrying a firearm in a careless manner, contrary to s. 86(1) of the Criminal Code – 6 months concurrent to Count 2.
• Count 5 – Possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code – 1 year consecutive to Count 2.
• Count 6 – Possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code – 1 year concurrent to Count 2.
• Count 7 – Failure to comply with a release order, contrary to section 145(5)(a) of the Criminal Code – 6 months concurrent to Count 2.
• Count 8 – Failure to comply with a probation order, contrary to section 733.1(1) of the Criminal Code – 6 months concurrent to Count 2.

Reduction in Sentencing

[74] The Supreme Court has held that it may be appropriate for a court to address a Charter breach when passing sentence. Incidents alleged or found to have constituted a Charter breach can be considered on sentencing, provided that they are connected to the sentencing exercise: Nasogaluak, at paras. 47-53.

[75] I concluded in my Charter decision that if convicted, Mr. Munda’s sentence ought to be reduced as a result of the excessive and unreasonable force used by PC D’Ornellas, one of the officers involved in Mr. Munda’s arrest. But I left the calculation of the actual reduction to the time of sentencing.

[76] I will briefly explain the circumstances that resulted in a finding that Mr. Munda’s s. 7 Charter rights were violated.

[77] In the early morning hours of July 20, 2022, Emergency Task Force (ETF) officers executed a search warrant on a townhouse unit in Oshawa. They believed that up to three suspects connected with a homicide committed in Toronto a month earlier were in the unit. In my Charter decision, I determined that shortly after police entered the unit, they used a taser three times on Mr. Munda. I found the multiple uses of the taser were justified because Mr. Munda ignored police orders and kept on moving his hands towards his waist after being tased. He ended up on the balcony of the townhouse unit with two officers, PC Hynek and PC D’Ornellas, standing beside him. I found that Mr. Munda was not compliant with the officers’ commands to lay flay and motionless on his belly, and place his hands behind him or on his head so that he could be handcuffed. I found that after Mr. Munda was tased for the third time, both officers were able to control his hands and cuff them to the rear. I found that PC D’Ornellas deliberately stepped on or kicked some part of Mr. Munda’s head or face after he was handcuffed. This caused Mr. Munda to cry out loudly in pain, which was captured on the audio of another officer’s Body-Worn-Camera (BWC). I was unable to say whether Mr. Munda was kicked once or twice by PC D’Ornellas, but it occurred after Mr. Munda was handcuffed and the handgun was removed from his pants. I rejected the Defence submission that PC D’Ornellas kicked Mr. Munda with maximum force but did find that PC D’Ornellas was not truthful in court when he denied the kick. I also found that PC D’Ornellas kicked or stepped on Mr. Munda’s face out of frustration with Mr. Munda’s repeated complaints. The kick did not cause any significant injuries to Mr. Munda but was painful and may have caused superficial bleeding.

[78] I find that the appropriate sentence reduction is one year. PC D’Ornellas’ misconduct was not as egregious as the behaviour in Nasogaluak where the officers’ assaults resulted in broken ribs and a punctured lung. In Nasogaluak, the sentencing reduction was arguably as little as 6 months and as much as 18 months.

[79] In R. v. Acheampong, 2018 ONCJ 798, police unjustifiably punched the offender about the head, resulting in swelling, bruising, and continuing headaches requiring treatment with medication. The sentencing judge reduced the sentence by two years to account for the harm caused to the offender and the administration of justice.

[80] In McAlpine, the second use of a taser on the offender was found to be unreasonable, disproportionate, and in breach of the Charter. The sentencing judge, Stribopoulos J., would have imposed a global sentence of 5.5 years for what was primarily a drug trafficking case but reduced the sentence by 18 months due to the excessive use of force by police. Stribopoulos J. declined to find a direct relationship between the offending taser conduct and the offender’s submission that, due to being tased he had experienced anxiety, sleep loss, PTSD, and hypertension. Still, Stribopoulos J. held that the tasering would have been excruciatingly painful and likely played some contributory role in the offender’s anxiety and loss of sleep.

[81] Mr. Munda did not suggest that he had any long-lasting or permanent physical injuries or psychological trauma as a result of PC D’Ornellas conduct. Still, I find that a one-year sentence reduction addresses the injustice to Mr. Munda as well as the harm to the administration of justice occasioned by PC D’Ornellas’ misconduct and his failure to testify in a truthful manner.

[82] I order that Mr. Munda’s sentence of 6.5 years be reduced by one year, to 5.5 years, as a remedy for the violation of his s. 7 Charter rights.

Pre-Sentence Custody and Summers Credit

[83] Mr. Munda has been in custody since July 20, 2022. He will have served 33 months and 24 real days as of May 15, 2025 which is 1,030 days. This should be enhanced at a rate of 1.5:1. Based on my calculation, this is 1,545 days.

Ancillary Orders

[84] The parties are in agreement with respect to the ancillary orders.

Conclusion

[85] In conclusion, Mr. Munda is sentenced to a total sentence of 5.5 years prior to the application of Summers credits as follows:

• Count 1 – Possession of a restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 91(1) of the Criminal Code. Stayed pursuant to R. v. Kienapple.
• Count 2 – Possession of a loaded restricted firearm, without being the holder of a license or a registration certificate, contrary to s. 95(1) of the Criminal Code – 4.5 years.
• Count 3 – Possession of a prohibited device, namely an Overcapacity Firearm Magazine, while knowingly not being the holder of a license, contrary to s. 92(2) of the Criminal Code - 6 months concurrent to Count 2.
• Count 4 - Carrying a firearm in a careless manner, contrary to s. 86(1) of the Criminal Code – 6 months concurrent to Count 2.
• Count 5 - Possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code – 1 year consecutive to Count 2.
• Count 6 - Possession of a firearm while prohibited from doing so, contrary to s. 117.01(1) of the Criminal Code – 1 year concurrent to Count 2.
• Count 7 - Failure to comply with a release order, contrary to section 145(5)(a) of the Criminal Code – 6 months concurrent to Count 2.
• Count 8 - Failure to comply with a probation order, contrary to section 733.1(1) of the Criminal Code – 6 months concurrent to Count 2.

[86] The total sentence of 5.5 years equals 2,007 days. Given the Summer’s credit of 1,545 days, Mr. Munda must serve a remaining sentence of 462 days or roughly 15 months.

[87] I agree with the Crown in respect of the ancillary terms of sentence. Accordingly, I also order that Mr. Munda be subject to:

• A DNA order under s. 487.051(3), as s. 95 is a secondary designated offence;
• An order that he be prohibited from carrying or applying for weapons for life, pursuant to section 109(3) of the Criminal Code;
• A forfeiture order, pursuant to s. 491 of the Criminal Code.

Pinto J.

Released: May 15, 2025