Court File and Parties

Court File No.: CRIM J(P) 488/23 Date: 2025-07-30

Ontario Superior Court of Justice

Between:

Her Majesty the King

Mahdi Bayat for the Crown

- and -

Leander Fernandes

Deepak Paradkar for Mr. Fernandes

Heard: July 29, 2024, and June 16, 2025

Reasons for Sentence

Stribopoulos J.:

Introduction

[1] Mr. Fernandes pleaded guilty to two offences: possessing a loaded restricted firearm without a licence or authorization to do so, and possessing a firearm with an altered serial number, contrary, respectively, to sections 95(1) and 108(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46.

Circumstances of the Offences

[2] On Sunday, November 6, 2022, at approximately 10:36 p.m., police noticed a vehicle idling in the parking lot of an apartment building in Brampton. They detected the odour of cannabis coming from the car and decided to investigate further.

[3] Upon approaching the vehicle, the police observed Mr. Fernandes in the driver's seat and a woman in the front passenger seat. The pair were smoking cannabis from a bong. Also, in plain view within the vehicle, the officers saw some jars containing what appeared to be cannabis.

[4] The police advised Mr. Fernandes and the passenger that they were detaining them for having cannabis readily accessible in the vehicle. They informed them of their Charter rights and gave them the primary common law caution. The police then searched the car, relying on their authority under subsection 12(3) of the Cannabis Control Act, 2017, S.O. 2017, c. 26, Sched. 1.

[5] Inside the car, the police located and seized 26.5 grams of cannabis. They searched a knapsack situated in the backseat, and in it, they found a loaded .22 calibre handgun (a "restricted firearm") with an altered serial number. Mr. Fernandes did not have a license or authorization to possess the firearm.

[6] Mr. Fernandes told the Pre-Sentence Report (PSR) author that he had been holding the handgun for a "friend." To Dr. Sharleen McDowall, who prepared a psychological report filed at the sentencing hearing, Mr. Fernandes indicated that the friend was an older coworker, someone who, despite having treated him poorly, he perceived as a mentor and to whom he felt indebted. According to Mr. Fernandes, he reluctantly agreed to hold the firearm because the man said he was going to be visiting family and did not want to take the gun with him while doing so.

[7] During the sentencing hearing, the court questioned why, if he were merely holding it for a friend, Mr. Fernandes had the gun with him in his vehicle instead of leaving it at home. Mr. Fernandes explained that, on the date of his arrest, he had had the gun for two days and thought it would be safer to keep it with him rather than leave it unattended at home, given that he lived with his parents and siblings.

Circumstances of the Offender

[8] Mr. Fernandes is now 25 years old. At the time of his offences, he was 22 and had no criminal record. Mr. Fernandes was born in India and immigrated to Canada with his parents as a toddler. He became a Canadian citizen in 2005.

[9] Mr. Fernandes is the second of three children; he has an older sister and a younger brother. After arriving in Canada, the family lived in various low-income neighbourhoods, where Mr. Fernandes, unfortunately, was exposed to incidents of violence, including being the victim of a serious assault when he was just five years old. However, in 2010, the family relocated to a better neighbourhood in Brampton, where they still reside.

[10] Although Mr. Fernandes maintains a close relationship with his mother and siblings, he has a troubled relationship with his father. Mr. Fernandes reports that throughout his upbringing, he and his siblings and their mother endured physical and emotional abuse from his father.

[11] To the PSR's author, Mr. Fernandes' mother characterized her husband's parenting approach as "strict" and acknowledged that it would amount to "verbal abuse" by Canadian standards. Although she downplayed her husband's behaviour, indicating it was "only for discipline" and that he did not "mean any harm," Mr. Fernandes' mother described her husband's behaviour less charitably in a letter she wrote that became an exhibit at the sentencing hearing. In it, she acknowledged that her husband "insulted, threatened, and mistreated me and my children regularly."

[12] Mr. Fernandes' older sister and younger brother confirm that their father was emotionally and physically abusive towards them and their mother. Mr. Fernandes' younger brother reported to the author of the PSR that their father "used to beat us a lot." In a letter filed at the sentencing hearing, he wrote that their father "was often physically abusive – it was regular for him to hit, choke, or batter us with objects for little to no reason." He added that the physical abuse "was often paired with emotional abuse: neglect, manipulation, name calling and swearing."

[13] According to Mr. Fernandes, the physical abuse ended when his sister was 17, precipitated by officials at her school learning that their father had choked her and the involvement of a child protection agency. However, Mr. Fernandes reports that the psychological abuse continued even after that. Unsurprisingly, given this history, Mr. Fernandes has a strained relationship with his father and avoids contact with him as much as possible, despite still living in the same residence together.

[14] During his early schooling, Mr. Fernandes was reportedly a good student. Unfortunately, his academic performance grew increasingly inconsistent over the years, mainly because of the struggles he experienced with his mental health.

[15] By the age of ten, Mr. Fernandes was engaging in acts of self-harm that only became progressively worse during his adolescence. He began counselling at age 12 but, at such a young age, was not receptive to it. At 13, suicidal ideation led to him becoming an outpatient in a psychological treatment program for adolescents. Over the next couple of years, suicide attempts twice resulted in prolonged stays in an inpatient treatment program. During that period, he was diagnosed with adjustment disorder with depressed mood linked to parent-child conflict.

[16] Unfortunately, Mr. Fernandes has experienced feelings of shame and embarrassment due to his mental health struggles, in no small part because of how his father has responded to these challenges. According to his brother, his father claimed that Mr. Fernandes was just seeking attention, and he "ridiculed him for taking medication, for attempting suicide, for having depression and anxiety and especially for his self-harm." Further, his brother reports that their father told Mr. Fernandes "to harm himself and to take his own life on numerous occasions." To this day, Mr. Fernandes reports that when they argue, his father will gratuitously refer to the struggles he has experienced with his mental health.

[17] To his credit, Mr. Fernandes has, at times, persevered despite the abuse he endured growing up and his mental health challenges. For example, since the age of 12, he has consistently volunteered at his church. Further, he actively participated in his high school's football program. Ultimately, despite some setbacks, he successfully graduated from high school. Finally, since graduating, he has volunteered as a football coach at his former high school.

[18] After high school, Mr. Fernandes pursued college studies, initially in a child and youth worker program and later in a welding program. Unfortunately, he did not complete either program. Despite his lack of academic success, Mr. Fernandes has a positive employment record.

[19] Mr. Fernandes worked part-time at a fast-food restaurant throughout high school. Since graduating, he has had various jobs, including with an automotive company. Letters from the owner of that company and one of his coworkers, both of whom were aware of his offences, describe Mr. Fernandes as responsible, conscientious, and hard-working.

[20] The individuals who wrote letters filed at the sentencing hearing and those whom the author of the PSR interviewed uniformly describe Mr. Fernandes as a kind-hearted, gentle, and generous person. They were all completely shocked to learn of his arrest for possessing a loaded handgun.

[21] In October 2023, Mr. Fernandes began working at a railyard for the Canadian Pacific Railway. Unfortunately, the stress occasioned by the uncertainty inherent in the criminal process has only worsened his already precarious mental health. As a result, he has been on medical leave from work since August 2024. Nevertheless, he now has a job offer for a sales position at a car dealership, an opportunity that Mr. Fernandes looks forward to pursuing once the criminal process is behind him.

[22] After his arrest, Mr. Fernandes became increasingly withdrawn in every facet of his life. Beyond his medical leave from work, he stopped socializing with friends and mostly stayed in his bedroom. He began overeating and chronically using cannabis. As a result, Mr. Fernandes has gained 60 pounds since his arrest. He acknowledges that his use of cannabis has proven problematic.

[23] In April 2025, Dr. McDowall assessed Mr. Fernandes as meeting the clinical criteria for the DSM-5 diagnosis of Other Specified Trauma and Stressor-Related Disorder, and Major Depressive Disorder with Anxious Distress, Severe. In her report, Dr. McDowall provided the following explanation of how Mr. Fernandes' background and mental health challenges have impacted him and set the stage for him to commit his offences:

Mr. Fernandes grew up in a turbulent household and continues to struggle with the trauma associated with his upbringing, that have resulted in very porous boundaries, impacted his decision making and made him more vulnerable to sensation-seeking and seeking maladaptive relationships. Having faced constant psychoemotional stress, familial conflict, instability and social isolation, Mr. Fernandes stated that he has, throughout his adolescence and adulthood, sought friendships and interpersonal relationships that he acknowledges had been further detrimental to his mental well-being and personal goals and values. His longing for connection and belonging was reported to have contributed to what he described as maladaptive patterns of behaviour, including self-sabotaging, neglecting personal boundaries and compulsive spending. ... This is further evidenced in his actions leading to his arrest on November 6, 2023 (sic), as Mr. Fernandes stated that he would seek out what he felt was a meaningful friendship and mentorship in associating with an older individual who would later cause him to become involved in the possession of an illegal handgun. Not only did he feel compelled to help the individual, Mr. Fernandes would feel compelled to omit that he had held onto the firearm on their behalf in fear of disappointing the individual he had considered a mentor.

[24] Since the Fall of 2024, Mr. Fernandes has been making a concerted effort to address his mental health challenges. Beyond now consistently taking medication to treat his depression and anxiety, he has been attending counselling regularly. Based on information shared by Mr. Fernandes' therapist, Dr. McDowall summarized the progress he has managed to make in therapy, writing in her report:

During the therapy sessions, Mr. Fernandes has expressed significant remorse regarding past actions and is actively engaged in taking steps to amend these behaviours. He attends sessions regularly and demonstrates a strong commitment to the goals outlined, showing enthusiasm and eagerness for personal growth. Mr. Fernandes has articulated how his longing for belonging has influenced his choice of social company, leading to less favourable relationships. He continues to focus on enhancing his decision-making skills while working through the effects of his traumatic childhood experiences and improving his interpersonal relationship dynamics. Mr. Fernandes' reflection and proactive approach speak to his dedication to personal development and healing.

[25] Following his arrest, Mr. Fernandes spent 25 days in custody before ultimately being granted bail subject to rather restrictive terms, which he has been subject to for nearly 31 months. During that time, he breached his bail order on one occasion by being outside his residence in circumstances not permitted by his release order. For that, on October 24, 2024, Mr. Fernandes pleaded guilty to breaching his release order and received a suspended sentence and 12 months of probation.

Positions of the Parties

[26] The parties agree on the ancillary orders that should form part of Mr. Fernandes' sentence for his offences. That includes a DNA order (as both of his crimes are secondary designated offences), a weapons prohibition order under s. 109 of the Criminal Code, and a forfeiture order relating to the firearm and ammunition. However, the parties advance differing positions concerning the carceral component of the sentence the court should impose.

Crown Submissions

[27] On behalf of the Crown, Mr. Bayat submits that three years' imprisonment is the starting point for a "true crime" offence under s. 95. However, to account for Mr. Fernandes' time spent in pre-sentence custody and subject to restrictive bail conditions, he submits that the appropriate sentence is two and a half years of imprisonment.

[28] Even if a reformatory sentence was appropriate, Mr. Bayat submits that a conditional sentence would not be because it would inadequately address the objectives of denunciation and deterrence. In that regard, he emphasized statistics filed at the sentencing hearing that show an alarming rise in gun possession and gun violence in Peel Region in recent years. Mr. Bayat noted that Mr. Fernandes possessed the firearm in a public place and that the handgun had an altered serial number, rendering it untraceable and therefore most likely intended for a criminal purpose.

[29] In urging the imposition of a two-and-a-half-year sentence of imprisonment, Mr. Bayat relied on the Court of Appeal's recent decision in R. v. Burke-Whittaker, 2025 ONCA 142, 445 C.C.C. (3d) 285, in which Favreau J.A., in her concurring reasons, noted that when sentencing for s. 95(1) offences, "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": Burke-Whittaker, at para. 38.

Defence Submissions

[30] On behalf of Mr. Fernandes, Mr. Paradkar submits that a sentence of two years, less a day, is appropriate, subject to a deduction for Mr. Fernandes' time spent in pre-sentence custody. Mr. Paradkar submits that a two-year probation order should follow to ensure Mr. Fernandes continues with counselling.

[31] In urging a sentence of that duration, Mr. Paradkar noted that there is no basis to conclude that Mr. Fernandes possessed the firearm in connection with any other criminal activity. Further, he emphasized the mitigating factors in this case, including Mr. Fernandes' youth at the time of his offences, his guilty pleas, remorse, his struggles with his mental health, the positive steps he has taken since his arrest to address those challenges, and the 31 months he spent subject to restrictive bail conditions.

[32] Mr. Paradkar noted that conditional sentences are not off-limits for firearms offences. He relied on the Court of Appeal's observation that: "a carefully fashioned conditional sentence that is responsive, both to the needs of denunciation and deterrence and the rehabilitative potential of the offender, can, in some situations, be a fit sentence for a s. 95 offence": R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 126 ("Morris, 2021").

Law and Analysis

Purpose, Objectives, and Principles of Sentencing

[33] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing, be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence, and account for the aggravating and mitigating factors to ultimately fashion a just and appropriate sentence.

[34] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.

[35] Achieving that purpose requires the court to impose "just sanctions" that address one or more of the traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see Criminal Code, ss. 718(a)-(f).

[36] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43; R. v. Gilmore, 2025 ONCA 517, at para. 34.

[37] Respecting the principle of parity is essential to arriving at a proportionate sentence. Proportionality is a function of the circumstances of the offence and offender, compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained, a sentencing judge must reconcile individualization and parity to achieve a proportionate sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code, ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 32; see also at paras. 30-33; R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 11-12.

[38] Ultimately, proportionality "has a restraining function" because it helps "guarantee that a sentence is individualized, just and appropriate": R. v. Bissonnette, 2022 SCC 23, [2022] 1 S.C.R. 597, at para. 51; see also Ipeelee, at para. 37. As Trotter J.A. recently explained: "Proportionality acts as a brake to ensure that, in the pursuit of public protection measures, including deterrence and denunciation, sentences are not unduly excessive": Gilmore, at para. 36; see also at para. 34.

[39] To ensure that sentences are proportionate, Parliament has mandated the need for restraint in sentencing. It has instructed that an offender "should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done" to victims or the community "should be considered for all offenders": Criminal Code, ss. 718.2(d) and (f). A few specific implications of the restraint principle are directly relevant to this case.

[40] First, the restraint principle ordinarily requires prioritizing specific deterrence and rehabilitation when sentencing youthful first offenders: see R. v. Stein, 15 C.C.C. (2d) 376; R. v. Priest, 110 C.C.C. (3d) 289, pp. 294-296; R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at paras. 30-31. Except for "very serious offences and offences involving violence," the need for restraint usually counsels against custodial sentences for youthful first offenders: Priest, at p. 294; see also Stein, at p. 377; Habib, at para. 31; R. v. Desir, 2021 ONCA 486, at para. 41.

[41] Second, the restraint principle requires that when sentencing youthful first offenders, even when general deterrence and denunciation necessitate a custodial sentence, courts must favour the shortest possible sentence that can still achieve those objectives. Further, when sentencing such offenders, the court can never lose sight of the importance of specific deterrence and rehabilitation: see R. v. Borde, 63 O.R. (3d) 417, at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at paras. 59-60; Desir, at para. 41; R. v. Faroughi, 2024 ONCA 178, at paras. 70-71; Habib, at para. 31.

[42] Finally, the restraint principle requires that if the court determines that a sentence of less than two years would be appropriate, it must favour a conditional sentence over incarceration if a conditional sentence is consistent with the proportionality principle: see R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21; Morris, 2021, at para. 125.

[43] With the purpose, objectives and principles of sentencing summarized, these reasons turn next to the range of sentences established by the case law for s. 95 offences.

Range of Sentences for s. 95 Offences

[44] It is impossible to overstate the gravity of unlawfully possessing a loaded prohibited or restricted firearm. Guns intimidate, maim, and kill; in the wrong hands, they are instruments of human destruction. The cases recognize that unlawful firearms are a scourge in our community, and their possession must be discouraged through exemplary sentences that denounce and deter their possession and use, thereby enhancing public safety: see R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff'd 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Mohiadin, 2021 ONCA 122, at para. 12. As the Court of Appeal observed in Morris, 2021, at para. 68:

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

[45] In Nur, in affirming the Court of Appeal for Ontario's decision, the Supreme Court of Canada agreed with Doherty J.A. that firearm offences fall along a spectrum, with regulatory infractions and guns used for criminal purposes falling at opposite poles. The Court concurred with his conclusion that cases falling near the "true crime" end of the spectrum warrant sentences of three years or more. Writing for the majority in Nur, McLachlin C.J.C. explained, at para. 82:

Section 95(1) casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not. At one end of the range, as Doherty J.A. observed, "stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. . . [T]his person is engaged in truly criminal conduct and poses a real and immediate danger to the public": para. 51. At the this end of the range – indeed for the vast majority of offences – a three-year sentence may be appropriate. A little further along the spectrum stands the person whose conduct is less serious and poses less danger; for these offenders three years' imprisonment may be disproportionate, but not grossly so. At the far end of the range, stands the licensed and responsible gun owner who stores his unloaded firearm safely with ammunition nearby, but makes a mistake as to where it can be stored. For this offender, a three-year sentence is grossly disproportionate to the sentence the conduct would otherwise merit under the sentencing provisions of the Criminal Code.

[46] Since Nur, in cases involving offenders who unlawfully possess a restricted or prohibited firearm but have not otherwise engaged in criminal activity and who were first offenders, courts have often imposed sentences approaching or at the maximum reformatory range (two years less a day): see R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at para. 30; R. v. Filian-Jiminez, 2014 ONCA 601 (18 months); R. v. Boussoulas, 2015 ONSC 1536, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44 (21 months); R. v. Shomonov, 2016 ONSC 4015 (21 months); R. v. Downey, 2017 ONCA 789 (two years less a day); R. v. Hassan, 2023 ONSC 5040 (two years less a day).

[47] In cases of that nature, sentencing judges have sometimes imposed conditional sentences. For example, where there were circumstances that mitigated an offender's degree of responsibility and/or where an offender had already made significant strides towards rehabilitation: see R. v. Moses, 2022 ONSC 332 (conditional sentence of two years less a day); R. v. Stewart, 2022 ONSC 6997 (same); R. v. Beharry, 2022 ONSC 4370 (same); R. v. Ramos, 2023 ONSC 1094 (same); R. v. Marier, 2023 ONSC 5194 (same); R. v. Stewart, 2024 ONSC 281 (same); R. v. Izaz, 2024 ONSC 6460 (same); R. v. Iqbal, 2025 ONSC 3222 (same); R. v. Alexander, 2025 ONSC 961 (same); R. v. Roy, [2023] O.J. No. 4931 (S.C.J.) (18-month conditional sentence).

[48] In contrast, offenders with prior criminal records, even those who are youthful, tend to receive sentences of three years of imprisonment: see R. v. J.B., 2016 ONSC 939 (three years); R. v. Jama, 2018 ONSC 1252 (same); R. v. Johnson, 2022 ONSC 2688 (same).

[49] Similarly, courts have imposed sentences ranging between two and four years of imprisonment where an offender's firearm possession is associated with other criminal activity, like drug trafficking: see R. v. Griffith, 2019 ONSC 358 (four years); R. v. Mansingh, 2017 ONCA 68 (43 months); R. v. Marshall, 2015 ONCA 692 (42 months); R. v. Barreira, 2024 ONSC 4682, aff'd 2025 ONCA 107 (same); R. v. Wong, 2012 ONCA 767, at paras. 9-15 (three years); R. v. Prosser, 2014 ONSC 6466 (30 months); R. v. Thompson, 2025 ONSC 2768 (same); R. v. Marfo, 2020 ONSC 5663 (two years).

[50] Not surprisingly, the sentences for section 95 recidivists who also breached firearms prohibition orders are much longer, ranging between four and nine years of imprisonment: see R. v. Morris, 2023 ONCA 816, at para. 87 (citing the relevant cases).

[51] Lastly, it is worth noting that sentencing ranges are "guidelines rather than hard and fast rules": Nasogaluak, at para. 44. They help structure a sentencing judge's exercise of their discretion because they reflect the application of the objectives and principles of sentencing when it comes to sentencing for a particular offence: see Lacasse, at para. 57. Nevertheless, a sentencing judge may determine that a sentence below or above the established range is necessary, given that the "determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation": Lacasse, at para. 58; see also Nasogaluak, at para. 44.

Aggravating and Mitigating Circumstances

[52] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a). A proper inventory of these is essential to arriving at a proportionate sentence because they inform the court's assessment of the gravity of the offence and the offender's degree of responsibility in its commission. They serve to "push the sentence up or down the scale of appropriate sentences for similar offences": Nasogaluak, at para. 43.

[53] In this case, there is a single and significant aggravating factor. Mr. Fernandes possessed the loaded firearm in public, undoubtedly increasing the potential threat to the safety of the community. That said, unlike in many cases, Mr. Fernandes was thankfully not carrying the firearm on his person, which would have exponentially increased the danger it posed to anyone he encountered, including the police.

[54] At the same time, several significant mitigating factors are present in this case, and together, they suggest that Mr. Fernandes' rehabilitative prospects are excellent.

[55] First, there is Mr. Fernandes' youth. He was only 22 at the time of his offences. In sentencing, youth is a mitigating factor: see R. v. Hills, 2023 SCC 2, 422 C.C.C. (3d) 1, at para. 161. That is because, unlike older adults, "young adults are more impulsive, emotionally volatile, and susceptible to negative influences and bad judgment," which "can make them less blameworthy than more mature adults": Habib, at para. 35.

[56] Second, Mr. Fernandes did not have a criminal record at the time of his offences. The absence of a prior criminal record is also a mitigating factor in sentencing because it speaks to an offender's potential for rehabilitation: see R. v. Dobis, 58 O.R. (3d) 536, at para. 28.

[57] Third, Mr. Fernandes pleaded guilty, thereby sparing an expenditure of scarce prosecutorial and judicial resources. That is a significant mitigating factor, especially in a jurisdiction as busy and overburdened as Brampton.

[58] Fourth, Mr. Fernandes' difficult upbringing, marred as it was by his father's physical and emotional abuse, which has strong ties to his resulting and significant struggles with his mental health, combined, are undoubtedly relevant mitigating factors. Dr. McDowall's report explains, and I accept, that Mr. Fernandes' abusive upbringing impacted his mental health and conditioned him to acquiesce to an older coworker's request to hold the firearm for him. The combination of all these factors serves to attenuate the moral blameworthiness of Mr. Fernandes' actions considerably: see R. v. Hilbach, 2023 SCC 3, 422 C.C.C. (3d) 139, at paras. 37, 88 and 92; Morris, 2021, at paras. 161-166; R. v. Husbands, 2024 ONCA 155, 170 O.R. (3d) 486, at paras. 87-88.

[59] Fifth, despite his strained relationship with his father, Mr. Fernandes is fortunate to continue to have the love and support of his mother and siblings. Family support is a mitigating factor because it bodes well for an offender's eventual reintegration into the community and potential for rehabilitation.

[60] Sixth, Mr. Fernandes had lived an entirely prosocial life before his offences. Despite his mental health struggles, he had employment throughout high school and managed to graduate. Since then, he has attended college and, at least up until last fall, when he had to take a medical leave due to his precarious mental health, has had a positive employment record as an adult.

[61] Seventh, at least since last fall, Mr. Fernandes has been actively attending to his mental health. He has been taking prescribed medications to treat his anxiety and depression, and regularly and conscientiously engaging in counselling. In therapy, he has expressed remorse for his actions, and he has demonstrated a commitment to coming to terms with his traumatic childhood and making positive changes in his life.

[62] Finally, Mr. Fernandes has spent 31 months subject to restrictive bail conditions. He has only been allowed to leave his home to work or when accompanied by one of his sureties. Therefore, Mr. Fernandes' time subject to house arrest bail has meaningfully restrained his liberty. As such, it is a mitigating factor deserving of consideration by the court in determining the appropriate sentence: see R. v. Downes, 79 O.R. (3d) 321, at para. 37.

The Appropriate Sentence

[63] In arriving at the appropriate sentence, I have carefully considered the circumstances of Mr. Fernandes' offences, the purpose, objectives, and principles of sentencing, the range of sentences for his offences, and the aggravating and mitigating factors in this case.

[64] Absent the mitigating factors in Mr. Fernandes' favour, the gravity of his crimes, unlawfully possessing a loaded restricted firearm with an altered serial number in a public place, would have warranted a penitentiary sentence, as the Crown urged. To be sure, a sentence of that duration would prioritize the objectives of denunciation and general deterrence, as the case law requires for Mr. Fernandes' offences.

[65] However, a penitentiary sentence would not adequately account for the significant mitigating factors in this case, especially Mr. Fernandes' abusive upbringing and resulting mental health challenges and the role they played in him committing his offences. Those circumstances significantly attenuate the moral blameworthiness of Mr. Fernandes' actions. Because of that, along with the other mitigating factors, a penitentiary sentence would be disproportionate. It would also overlook the need for a sentence that facilitates Mr. Fernandes' rehabilitation, a critical objective given that he is a youthful first offender.

[66] Due to Mr. Fernandes' youth, his status as a first offender at the time of his offences, his guilty pleas, his remorse, his positive work history, the meaningful steps he has already taken toward his rehabilitation, and his time subject to restrictive bail conditions, mindful of the sentences received for similar offences committed by similarly situated offenders, 18 months of imprisonment is fit and proportionate sentence in all the circumstances.

[67] That would have been the appropriate sentence before crediting Mr. Fernandes for his time spent in pre-sentence custody. Mr. Fernandes spent 25 days in pre-sentence custody before being released on bail. He is entitled to credit for that time at the ordinary rate of 1.5 days to 1: see Criminal Code, ss. 719(3), 719(3.1); R. v. Summers, 2014 SCC 26, [2014] S.C.R. 575, at para. 71. Mr. Fernandes will receive 38 days of credit for his time spent in pre-sentence custody.

[68] Given all this, the appropriate sentence for Mr. Fernandes for his offences going forward is 16 months and 22 days of imprisonment, concurrent on both counts, followed by three years of probation to ensure that he continues with counselling and obtains the maximum rehabilitative benefits it can provide him.

[69] Although a conditional sentence was unavailable for Mr. Fernandes' offences when he committed them, legislative changes that became effective shortly afterwards now make that an available sentencing option: see An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15, s. 14(1).

[70] The circumstances of this case satisfy four of the preconditions for a conditional sentence.

[71] First, as explained, before any deduction for Mr. Fernandes' times spent in pre-sentence custody, a sentence of less than two years of imprisonment is appropriate in this case: see Criminal Code, s. 742.1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 49-61; R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, at paras. 4, 33, 39-40.

[72] Second, given that Mr. Fernandes does not have a criminal record, the positive strides toward rehabilitation he has made since his arrest, and the fact that he has been on bail for 31 months without committing any substantive offences, it would not endanger the safety of the community to permit him to serve his sentence under a conditional sentence order: see Criminal Code, s. 742.1(a); Proulx, at paras. 69-74.

[73] Third, Mr. Fernandes' offences are not punishable by a minimum term of imprisonment, which would preclude a conditional sentence: see Criminal Code, s. 742.1(b).

[74] Fourth, Mr. Fernandes' offences are not among the relatively few crimes for which a conditional sentence remains unavailable: see Criminal Code, s. 742.1(c) and (d).

[75] The final precondition for the court to order a conditional sentence is that it be satisfied that such a sentence "would be consistent with the fundamental purpose and principles of sentencing": Criminal Code, s. 742.1(a).

[76] In general, conditional sentences are available even in cases like this, where the preeminent sentencing objectives are denunciation and deterrence, and there are aggravating circumstances. Accordingly, they are not "off-limits" for firearms offences: R. v. Desmond-Robinson, 2022 ONCA 369, at paras. 13-14; see also Morris, at paras. 124-129, 180-181.

[77] Although in Proulx, the Supreme Court recognized that conditional sentences are more effective than incarceration at achieving rehabilitation, reparations to victims and the community, and promoting a sense of responsibility, it also acknowledged that they are "a punitive sanction capable of achieving the objectives of denunciation and deterrence": Proulx, at para. 22. That is because conditional sentences carry a significant stigma when they include punitive conditions, like house arrest: see Proulx, at paras. 36, 105.

[78] Therefore, if fashioned appropriately, the Supreme Court acknowledged in Proulx that conditional sentences provide "a significant amount of denunciation" (para. 102) and "significant deterrence" (para. 107). Accordingly, even in cases involving aggravating circumstances related to the offence or the offender, the Supreme Court noted in Proulx that conditional sentences remain available: see Proulx, at para. 115.

[79] Nevertheless, the Supreme Court in Proulx also cautioned that the deterrence and denunciation provided by a conditional sentence could prove insufficient in some cases. In such circumstances, incarceration will be the only suitable way to achieve those sentencing objectives: see Proulx, at para. 106.

[80] After giving careful consideration to all the circumstances of this case, I am satisfied that a conditional sentence order that incorporates significant restraints on Mr. Fernandes' liberty (house arrest for its entire duration subject to limited exceptions to help facilitate his continued rehabilitation) can more than adequately address the objectives of denunciation and deterrence which are of some priority, in this case, because of the nature and gravity of Mr. Fernandes' offences.

[81] At the same time, a conditional sentence will best facilitate Mr. Fernandes' rehabilitation, which remains a pressing sentencing objective because he is a youthful first offender. In that regard, I accept Dr. McDowall's opinion that incarcerating Mr. Fernandes would have a detrimental impact on his mental health and undermine the progress he has already made toward addressing his psychological challenges. Therefore, a conditional sentence, which includes a condition requiring Mr. Fernandes to continue counselling while serving his sentence in the community, is much better suited to achieving his rehabilitation. As such, it will undoubtedly better serve the fundamental purpose of sentencing: the long-term protection of society.

[82] For these reasons, in all the circumstances, permitting Mr. Fernandes to serve his sentence in the community, subject to the terms of a conditional sentence order, is consistent with the fundamental purpose and principles of sentencing.

Conclusion

[83] As a result, although the court shall note a sentence of 18 months, going forward, to credit him for his time spent in pre-sentence custody, Mr. Fernandes is sentenced to 16 months and 22 days, concurrent on both counts, to be served in the community under the terms of a conditional sentence order, followed by three years of probation.

[84] Additionally, the court will issue a DNA order, a s. 109 weapons prohibition order (for ten years and life), and a forfeiture order (for the firearm and ammunition).

[85] Finally, Mr. Fernandes will be required to pay $400 in victim surcharges for his two offences, and he will have three years to pay that amount.

Signed: "J. Stribopoulos J."

Released: July 30, 2025