Ontario Superior Court of Justice

Court File No.: CR-23-30000021
Date: 2025-01-08

Between:
His Majesty the King
and
Tayshaun Powell

Appearances:
Shalini Gunawardhane, for the Crown
Lorne Sabsay, for Tayshaun Powell

Heard: March 11 and December 2, 2024

Reasons for Sentence
Catherine Himel

Introduction

[1] Tayshaun Powell entered a plea of guilty to a charge of reckless discharge of firearm contrary to s. 244.2(1)(b) of the Criminal Code, RSC 1985, c C-46, as amended. He had elected to be tried by a judge sitting alone.

[2] Mr. Powell confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offence, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.

[3] Following the plea of guilty, defence counsel requested that the court order an “Impact of Race and Culture Assessment Report” and the Crown consented to such an order. I made an order on March 11, 2024 that this assessment be made. Counsel and Mr. Powell appeared on May 27, 2024 to provide an update. On May 27, 2024, counsel advised that the assessor had received the materials, that Mr. Powell had completed the information form required of him and that the assessment would likely take 8 months. I adjourned the matter to September 3, 2024 to check on the progress. On September 3, 2024, I was advised that Dr. Camisha Sibblis was preparing the report and that it would likely be done by mid to late November. The matter was adjourned to December 2, 2024 for a sentencing hearing. The report has now been completed and was reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.

Factual Background

[4] On August 21, 2021, at approximately 5:40 p.m., multiple 911 calls were placed for a shooting at 3847 Lawrence Avenue East in the city of Toronto. Information related to police was that the shooting happened in the area of the basketball court or parking lot. Officers from 43 Division attended the call and located the scene of the shooting which was the basketball court at the southeast corner of the property. Four 9 mm casings were located in that area: three casings on the court itself and the fourth was just outside the court on the pathway. Police responded as part of this radio call and located two men who had fled from the basketball court into the nearby apartment building after the shooting. The two males were Salimou Dansoko and Tayshaun Powell.

[5] On the basis of these facts and the admission of the defence, I found Mr. Powell guilty of the offence charged.

Evidence on the Sentencing Hearing

[6] Crown counsel filed an Agreed Statement of Facts pursuant to s. 655 of the Code. Crown counsel advised the court that Mr. Powell does not have a criminal record. Ms. Gunawardhane submitted to the court a document entitled “Firearms and Violent Crime in Canada” which was published in 2024 and discusses the increase in the use of firearms in Canada for the year 2022.

[7] The defence filed the “Impact of Race and Culture Assessment” (“IRCA”) report as an exhibit and it will be referenced below. Mr. Powell had been released on a recognizance on Sept. 15, 2021 with terms of house arrest and with electronic monitoring. His bail was varied on Feb. 13, 2024 to permit him to work.

[8] Mr. Powell did not speak in court. His mother and grandmother were present.

Positions of the Parties

[9] Crown counsel submits to the court that an appropriate sentence in this case is a sentence of 5 years of imprisonment which she says is at the lowest end of the range. She takes the position that this sentence already takes into account any credit that Mr. Powell might receive for being on house arrest and for other mitigating factors including those stemming from the effect of systemic racism as discussed in the IRCA. She argues that a conditional sentence is not appropriate. Ms. Gunawardhane also seeks a s. 109(2) order for 10 years and an order that a DNA sample be taken pursuant to s. 487.051(3). She points to the document that she filed entitled “Firearms and Violent Crime in Canada” which shows the increase in gun violence in 2022 in Canada and in Ontario.

[10] Ms. Gunawardhane notes that Mr. Powell has pleaded guilty to reckless discharge under s. 244.2(1)(b) of the Code, and it was not specified that a firearm that was a restricted weapon or a prohibited weapon was used in the commission of the offence. As a result, there is no minimum sentence. On the facts of the case, no firearm was ever recovered. Counsel highlights that the events took place in daylight when there were other persons in the basketball court. Mr. Powell ran to a building complex after the shooting and there were small children playing near the basketball court. Fortunately, no one was hurt. It is admitted by the defence that when the police arrived, Mr. Powell provided a false statement which Crown counsel says was to deflect responsibility and send police down the wrong path.

[11] While Mr. Powell is only 24 years old at this time and had no criminal record, the objectives of denunciation and deterrence are the paramount objectives of sentencing for gun offences as discussed by the Supreme Court in R. v. Nur, 2015 SCC 15. She also cites the decision of R. v. Kawal, 2018 ONSC 7531 at para. 16 where the court said, “…The danger handguns pose to the community cannot be overstated. Word must circulate that appropriate and fit sentences for handguns will necessarily be severe and lengthy sentences.” In R. v. Nur, the court at para. 131 wrote that, “Gun crime is a matter of grave and growing public concern”, and this is repeated throughout the jurisprudence. In R. v. St. Clair, 2018 ONSC 7028, para 47, K.L. Campbell J. wrote that “…unlawful possession of firearms remains a menace to society” and that exemplary sentences are needed to denounce and deter such conduct. Crown counsel references the “Firearms and Violent Crime in Canada” Report at p. 35 which discusses the proliferation of handguns and the profound effect on public safety. Here, Mr. Powell carried a loaded gun on him in public and was firing it. Such conduct ought to be denounced.

[12] Further, in the case of R. v. Morris, 2021 ONCA 680 the court wrote as follows at para. 68:

As described in Friesen, at paras. 75-76, the gravity of an offence takes into account the normative wrongfulness of the conduct and the harm posed or caused by the conduct. 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: see Nur (ONCA) at paras. 82, 206; R. v. Felawka, [1993] 4 S.C.R. 199, [1993] S.C.J. No. 117 at pp. 214-15 S.C.R.

[13] In Morris, the court considered the factor where an accused has experienced anti-Black racism but said 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.” Crown counsel acknowledged that the IRCA should be considered regarding the effect of anti-Black racism and the social context evidence provided that it is connected to the notion of fear and the offence committed. She points out that Mr. Powell was raised in a stable household with strong females. While he was exposed to gun violence, the impact of systemic racism should not allow a sentence to fall below the lowest end of the range which in this case is 5 years of imprisonment.

[14] Ms. Gunawardhane also argues that there is a prevalence of gun violence particularly in the City of Toronto and the Greater Toronto Area. She cites the decision of R. v. Lacasse, 2015 SCC 64, paras 89-90 where the Supreme Court said that, while the Criminal Code applies across Canada, local characteristics in a given region may affect the sentence being given and “The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.” The Supreme Court cited R. v. M. (C.A.), where Lamer C.J. wrote that the determination of a just and fit sentence may take into account, “needs and current conditions of and in the community.” Crown counsel submits that one of the factors to consider in the case at bar is whether the type of crime occurs frequently in a geographic region and that having a loaded firearm is a dangerous blight on the city.

[15] In R. v. Thavakularatnam, 2018 ONSC 2380, the court imposed a 40-month sentence of imprisonment where the offender pleaded guilty to the offences of possession of a loaded restricted firearm and possession of a firearm knowing that he was not the holder of a licence or registration certificate, was 20 years old, had been on bail at the time of the offences for an assault charge, had no adult criminal record and there were immigration consequences. Akhtar J. wrote at para. 21, “Gun crime has become a cancer in Toronto. Despite several years of case law condemning the offence, the possession of firearms remains a blight on the city and its residents.”

[16] Ms. Gunawardhane made submissions about Mr. Powell’s assertion that he was in possession of a gun for self-protection as he had described to the assessor a grey car circling the basketball court and that a man appeared to be walking up to him with his hand in his coat, suggesting that he may have had a gun. She says there is no evidence that this was the case or that this was an act of self defence. Mr. Powell had pleaded guilty to the charge. Further, this issue of being in possession of a loaded firearm for self-protection was considered in R. v. Johnson, 2022 ONSC 2688, para 41 where Goldstein J. wrote at para. 41, “The notion often advanced in these courts that a person needs an illegal handgun for protection is, quite simply, utter nonsense…” In that case, he gave no credit for the notion of being in possession of a loaded gun for self-protection. Similarly, she says, it does not matter why Mr. Powell was in possession of a loaded gun which he discharged but rather, how he behaved. He produced a firearm on a moment’s notice in a public place with children in the vicinity in broad daylight and he provided a false account of what had happened to police.

[17] Crown counsel referred the court to R. v. Bellissimo, 2009 ONCA 49, where the Court of Appeal allowed a sentence appeal concerning an appellant who had fired several shots in a restaurant and significantly injured one person, caused a minor injury to another and narrowly missed killing a third person. The sentence of 8.5 years was varied to a 10-year sentence in order to adequately address general deterrence and denunciation. The court made reference to “the range of sentence for these kinds of serious gun related offences is between seven and eleven years.”

[18] In the case of R. v. Jama and Farah, 2021 ONSC 4871, paras 41-45, following a lengthy trial, Mr. Jama and Mr. Farah were each convicted of one count of recklessly discharging a restricted firearm and Mr. Farah was also convicted of possession of a loaded restricted weapon and possession of a firearm knowing he had no licence. He was further convicted of possession of a firearm with readily accessible ammunition, possession of a firearm knowing he had no licence and possession of a firearm with an altered serial number as well as a number of drug offences. The court wrote at para. 41: “This was a serious offence. This was not a sporadic decision to discharge a firearm made in the heat of the moment or in circumstances which had elements of self-defence. Rather, the discharge of the firearm was planned and deliberate.”

[19] Justice Schreck reviewed the jurisprudence and wrote at para. 45 that an appropriate sentencing range of discharging a restricted or prohibited firearm without causing or attempting to cause an injury to another person is higher than the three-to-four-year range for possession of such a firearm and lower than where others are present. He concluded, “that the appropriate range for s. 244.2 offences using a restricted or prohibited weapon is five to seven years. He sentenced Mr. Jama who was 26 years old, had a criminal record for robbery which postdated the offence and had been on bail at the time but did not actually fire the gun to five years and Mr. Farah who was 22 years old and had no prior criminal record to five years of imprisonment for the discharge firearm with credit for pre-sentence custody.

[20] In R. v. Fogah-Pierre, 2024 ONSC 386, G. Roberts J. sentenced an offender found guilty of firing five shots from a handgun at a fleeing man where, fortunately, no one was hurt. The Crown sought an 8.5-year sentence; the defence sought a sentence of 5 years, the mandatory minimum. The court found that there were exceptional circumstances and imposed the mandatory minimum sentence of 5 years for the reckless discharge of the handgun. Roberts J. referred to the case of R. v. Abderezak, 2022 ONSC 6737, where Fuerst J. commented on the range noted in Jama and Farah but held that seven years is not the ceiling and that aggravating factors may move the top of the range higher. In that case, she imposed a sentence of 7 years for reckless discharge of firearm. In R. v. Baugh, Liburd and Reece, 2021 ONSC 8408, para 62, Forestell J. sentenced the offenders who pleaded guilty to nine charges related to a shooting incident. One of the counts was intentional discharge of a firearm while being reckless as to the life or safety of another person. She agreed with Schreck J. that the range of sentence for reckless discharge of a firearm where no one is injured is 5 to 7 years. Where a person is wounded, that range extends into the range identified in Bellissimo which is 6 to 10 years. She imposed a sentence of 6 years for two of the offenders and 7.5 years for the third for the offence of discharge firearm.

[21] In summary, Ms. Gunawardhane argues that while the Crown has not specified in the indictment that the offence took place with a restricted firearm, there is a strong inference that the firearm was a handgun. The factors of the location of the crime adjacent to a residential building with children in the area and that Mr. Powell gave a false statement to the police are aggravating. The sympathetic IRCA, that Mr. Powell is young and has no criminal record are mitigating factors. All this is balanced with a 5-year sentence and not one that is served in the community. Counsel says that the cases relied upon by the defence involve possession of a loaded firearm. Rather, the court should be looking at the range of sentence discussed by Justice Schreck in Jama which involves the discharge of a firearm without injury to anyone. While Mr. Powell may not have taken aim at anyone when he discharged the gun, there is no clear evidence that he was shooting in the air. These circumstances do not mitigate the sentence.

[22] Counsel for the defence, Mr. Sabsay, submits that notwithstanding the seriousness of the offence which would normally result in a penitentiary sentence, there are mitigating circumstances which suggest that a sentence served in the community is an appropriate one. In reviewing the video surveillance, it is apparent that while Mr. Powell and his friends are sitting on a bench, a vehicle came around, circled the parking lot and the people in the car seemed to be looking for someone. After pulling up adjacent to the basketball court, the passenger got out and approached those on the bench. His hands are near his waistband which would suggest the markings of a “would-be” assassination. The only reasonable inference was that the person was going for a gun and in response, Mr. Powell shot two or three times in the air and then ran away. Counsel suggests that these were warning shots. While this was still a reckless act, no one was injured. The police found shell casings which incriminated Mr. Powell.

[23] Mr. Powell surrendered to police in August 2021 and has been on strict conditions of release for three years. Last summer, in 2024, he was permitted to leave the house to go to work but was not able to find work as he believed he had to be with his surety. He signed up for the Youth Job Centre and participated in the Yes Program. He was able to do some workshops online. Mr. Powell’s father is a construction worker and is actively working to get him into the union. He resides in Sudbury but the search is for work for his son in Toronto.

[24] Counsel highlights that Mr. Powell’s mother was in the courtroom during the sentencing hearing. Mr. Powell has made efforts to obtain employment but has been unsuccessful. He had been under house arrest for two years when he suffered a breakdown and went to hospital. Police showed up at the hospital as he was on an electronic bracelet.

[25] The defence relies on R. v. Morris where the Ontario Court of Appeal recognized the impact of anti-Black racism as a significant mitigating factor in sentencing. The court reiterated at para. 13 that the court is to impose a just sentence tailored to the individual offender. None of the cases cited by Crown counsel were cases where an IRCA had been done and the impact of anti-Black racism had been canvassed fully. The experience of anti-Black racism mitigates the degree of personal responsibility for the offence. Counsel points out that while an offence such as the one in Morris would normally call for a penitentiary sentence, the Court of Appeal considered the social context evidence and the personal experience of the offender in that context and imposed a sentence that brought it below the range of three years.

[26] Counsel submits that Mr. Powell acted in a defensive manner and was reactive to the car pulling up to the basketball court. His previous experience of being shot when he was sitting on a trampoline and his experiences when he witnessed violence have had a profound impact on him. It is no surprise that he is fearful of what can happen and fearful of police. These experiences caused him to act in a serious and reckless manner in discharging the gun. However, counsel submits that the court must tailor the sentence to the individual offender and the specific offence: see para. 56 in Morris.

[27] Mr. Sabsay argues that while denunciation and deterrence are objectives of sentencing, rehabilitation is also an objective. In Morris, the court referenced Rosenberg J.A.’s remarks in R. v. Borde at para. 92 and Justice Durno’s observations in R. v. B. (G.), [2003] O.J. No. 3218 where the courts discussed how the offender’s background and disadvantaged circumstances are relevant factors in sentencing. Where the evidence of anti-Black racism is connected to the offence and offers an explanation, for example, to possession of the handgun, that is relevant: Morris, at para. 100. Defence counsel also points to para. 109 where the court wrote that “Sentences below the established range are not necessarily unfit: see Friesen, at para. 38; R. v. Suter, 2018 SCC 34, para 4.” Mr. Sabsay submits that cases relied upon by Crown counsel were cases where the mandatory minimum sentence was operative. None of the cases involve s. 244(2)(1)(b) where there is no mandatory minimum. Counsel distinguishes the cases relied upon by the Crown where the offender was intentionally firing unlawfully at the attacker: see R. v. Bellissimo; R. v. Baugh.

[28] Mr. Sabsay also points to the decision of R. v. Anderson, 2021 NSCA 62, para 119 where the Nova Scotia Court of Appeal discussed the use of Impact of Race and Culture Assessments (IRCA) as a valuable resource for sentencing judges. They provide information about the history of anti-Black racism and discrimination and its effects on the offender. The court discussed how such information ensures that the “relevant systemic and background factors are integrated into crafting a fit sentence, one that is proportionate to the gravity of the offence and the moral culpability of the offender.” In that case, the Nova Scotia Court of Appeal upheld a conditional sentence of two years less a day followed by two years of probation imposed by the trial judge for an offender found guilty of five gun-related offences. During a random traffic stop, the respondent, an African Nova Scotian, was found in possession of a loaded gun which he possessed out of fear that he might be targeted for violence. The respondent’s background included poverty, housing instability, family breakdown, lack of relevant educational opportunities and limited employment prospects. An Impact of Race and Culture Assessment (IRCA) had been prepared and recommended counselling and resources that were relevant to his background. The trial judge had heard oral evidence about the effects of systemic racism and disadvantage on Mr. Anderson in addition to having the IRCA before the court. The Court of Appeal noted that an IRCA can provide specific information “relevant to the judge’s obligation to determine an individualized sentence.”

[29] Similarly in the case at bar, counsel asks this court to impose a sentence of two years less a day with the conditions imposed like those discussed in Anderson. He submits that 8 months of house arrest followed by a curfew of 9:00 p.m. to 6:00 a.m. followed by 2 years of probation and with a prohibition against possession of weapons and other conditions is an appropriate sentence.

[30] Counsel for the defence cited R. v. Downes where the Ontario Court of Appeal highlighted at para. 29 that, “Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 752.1 of the Criminal Code ….” Rosenberg J.A. wrote at para. 33 that, “Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance.” He wrote at para. 34 that “it is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest condition.”

[31] In this case, counsel points out again that Mr. Powell has been on 3 years of house arrest.

[32] In summary, Mr. Sabsay highlights that Mr. Powell has two children that he should be supporting, he lives with his mother and wants to obtain work. A conditional sentence would permit him to contribute to his family. Counsel does not oppose a s. 109 order for 10 years, or an order that a DNA sample to be taken.

Analysis and the Law

[33] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[34] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.

[35] I now turn to the relevant jurisprudence concerning the offence in this case. The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, para 78. Although in reference to possession of a loaded firearm, in R. v. Nur, the Supreme Court of Canada emphasized the objectives of denunciation and deterrence when sentencing persons found in possession of loaded firearms. While striking down the mandatory minimum sentence for possession of a firearm contrary to s. 95(2), the court upheld the sentence of 40 months for a 19-year-old first offender.

[36] In the decision of the Court of Appeal at 2013 ONCA 677, Doherty J.A. wrote at para. 206: “Individuals who have loaded, restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.”

[37] While Mr. Powell is not convicted of possession of a loaded firearm and no firearm was ever located, the jurisprudence on gun violence is relevant. With respect to the offence of which Mr. Powell is convicted, as discussed above, in the cases cited by counsel, the sentencing range for reckless discharge of a firearm where no one is injured was outlined by Schreck J. who held that the range was between 5 and 7 years of imprisonment: see R. v. Jama and Farah, 2021 ONSC 4871, paras 41-45. In that case, Mr. Jama and Mr. Farah drove through a parking lot and fired three shots from a handgun in the direction of a car with two people inside of it. There was no evidence that anyone was hurt or that the car was hit. Schreck J. imposed a sentence of 5 years which was the mandatory minimum and noted the sentences would have been higher had it not been for harsh pre-sentence conditions at the Toronto South Detention Centre: see para. 55. Justice Forestell agreed with this range where no one is injured: see R. v. Baugh, Liburd and Reece, 2021 ONSC 8408, para 62.

[38] In R. v. Fogah-Pierre, 2024 ONSC 386, also discussed above, Roberts J. imposed the mandatory minimum sentence of 5 years where the offender took aim and shot at an individual who tried to attack him as that attacker fled. In Mr. Powell’s situation, he had been the victim of serious gun violence when he was shot in the hip at the age of 15 according to the IRCA. Further, Mr. Powell pleaded guilty, was a young offender, had a difficult childhood including a learning disability, did not complete high school, had an absent father, lived in a tough neighbourhood, had negative interactions with police and was the victim of a shooting which resulted in fear for his safety and possible Post-Traumatic Stress disorder. In addition, he has a supportive family (he is very close to his mother, aunt and grandmother and sister), is working towards a high school diploma and has a desire to become employed. These circumstances are not present in Fogah-Pierre.

[39] There is jurisprudence where conditional sentences have been imposed for possession of weapons offences (see: R. v. Carter, 2021 ONCJ 561, R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Marier, 2023 ONSC 5194; R. v. Orin Moses, 2022 ONSC 332; R. v. Stewart, 2022 ONSC 6997; R. v. Beharry, 2022 ONSC 4370; R. v. Lewis, [2022] O.J. No. 872; R. v. Collins, 2023 ONSC 5768, and R. v. Hussey-Rodrigues, 2024 ONSC 271). However, I am not aware of jurisprudence in support of a conditional sentence for the offence of discharge of firearm.

[40] I do note that R.F. Goldstein J. sentenced the offender in R. v. Burke-Whittaker, 2024 ONSC 2906 to a sentence of two years less a day served as a conditional sentence for possession of a loaded prohibited or restricted firearm contrary to s. 95(1). In reciting the facts, Justice Goldstein outlined that Mr. Burke-Whittaker attended a viewing while in possession of a handgun in a satchel and that he was seen on the video carrying the satchel and while people were exchanging shots, he appeared to be pulling something out of the red satchel (which the court inferred was the firearm), that he cocked the gun and turned and fired a shot in the direction of an unknown vehicle and fled. No firearm was recovered but Mr. Burke-Whittaker was identified as one of the shooters.

[41] Mr. Burke-Whittaker was 28 years old, had no criminal record, had one child, provided very positive letters to the court including about volunteer work, from a partner whom he was supporting, various relatives and friends. He had been employed and was accepted to the Ontario Fire Academy as a firefighter. Although no Morris report was filed, his counsel provided the court with relevant information concerning his experiences as a young Black man. Goldstein J. held that although there was a significant aggravating factor concerning the discharge of the firearm, he was not convicted of that offence. Given the many mitigating factors in the case, the court determined that there were exceptional circumstances that justified a sentence below the penitentiary range and sentenced him to 2 years less a day served as a conditional sentence followed by 3 years of probation. Again, it must be emphasized that the offence in R. v. Burke-Whittaker was possession of a loaded prohibited or restricted weapon.

The Factor of Systemic Racism

[42] As discussed above, in the case of R. v. Morris, 2021 ONCA 680, paras 79, 81, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing.

[43] In Morris, the court discussed that where the past hardship including the factor of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account.

Decision

[44] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, para 44.

[45] In considering both the circumstances of the offence and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I first turn to the circumstances of the offender and consider the following to be relevant in the case of Mr. Powell.

[46] Mr. Powell is 24 years of age and was born in Canada on May 30, 2000. His parents were immigrants from Jamaica. His parents did not marry, and his father had another family consisting of several children from other relationships. Mr. Powell was raised by his mother, his aunt and his maternal grandmother. He and his mother lived with his grandmother until he was two years old, then with family and finally in their own apartment. His grandmother and his aunt were very involved with his upbringing as his mother was working and raising the children often without a male partner.

[47] Mr. Powell has two younger half-brothers. His mother married when he was two years old, and he had a good relationship with his stepfather although his mother and his stepfather divorced in 2015. Mr. Powell’s family are close and supportive. They maintain close ties with the Jamaican culture, and he has been to Jamaica many times. For a period of time when Mr. Powell was 17 years old, he lived in St. Catherines and participated in the Youth Employment Program. He moved away in 2020 to live with his sister. He lived there until 2021 when he was arrested on this charge. Since his release on bail, he has been living at 720 Trethewey Drive with his mother, two younger brothers and a girlfriend in his mother’s apartment.

[48] Mr. Powell has two children. He does not have much contact with his older son as he was young and unable to support a child when he was born. He has another son who was born in 2023. He has minimal contact with that child partly because he was under house arrest and partly because he had conflict with the child’s mother. Mr. Powell has been in a relationship with Destiny for the last 9 months and they live together in his mother’s home. His mother said to the assessor that she lives in fear and hypervigilance as she is concerned about the safety of the neighbourhood. There are gangs and Mr. Powell told the assessor that police would harass them when he was younger.

[49] Mr. Powell said that he often felt unsafe at school and his aunt said he was bullied during grades 4 to 5. He felt harassed and mistreated in the neighbourhood and he had challenges with his academics. In Grade 9, he was identified as having exceptionalities, a “mild intellectual disability”. It was recommended that he be placed in a special education class, and he was placed in a smaller class and completed his academics though grade 5. Even from the age of grade 4 he would steal from peoples’ lockers and get into fights. This continued with robberies during high school using knives. He experienced school suspensions and was expelled in Grade 9. During his last year in school, he says he was wrongfully accused and arrested for stealing from another student and was sentenced to a period of house arrest. He could not attend school but eventually received a certificate of completion at the age of 16.

[50] Mr. Powell says he is currently working on getting his high school certificate online which he finds challenging. He is considering a course in electrical technology or construction. He had worked from an early age at different construction sites with his grandfather and for a friend’s construction company in the GTA. He also sold golf balls to players at golf clubs. He worked in St. Catherines as part of the Youth Employment Program at McDonalds, a skateboard store and a suit shop. He has not had formal employment since 2020.

[51] In the assessment report filed, the assessor expressed that Mr. Powell has had some significant experiences that would be deemed distressing and traumatic. They include witnessing a drive-by shooting when he was 8 years old, seeing a student get stabbed at Central Tech and an incident at Contract Alternative School during which he called his mother to come and pick him up after someone at the school held up their shirt to reveal a weapon. He never returned to that school. When he was 15 years old, he was shot in the hip while spending time in a friend’s backyard. He had to have surgery with metal plates placed inside his body. He stayed inside for 5 months. He takes Percocet for pain and is somewhat limited in his activities. His grandmother believes that Mr. Powell has struggled with mental health challenges and that he seems paranoid and reclusive.

[52] The assessor also referenced that there were other incidents of gun violence in Mr. Powell’s life including that two of his brothers and his sister have been shot. He also experienced the shooting death of his cousin in 2022. As a result, Mr. Powell is fearful that someone will try and hurt him and believes he is unsafe in Toronto. He has had some counselling at Edy Finch which was court mandated (he went twice) and to CAMH but he did not feel that he fit in at CAMH. The assessor was of the view that Mr. Powell’s exposure to gun violence at an early age was significant. She said that he told her that he carried a gun for protection, His aunt said that since being shot, “he was constantly looking over his shoulder”. He hardly leaves the house and is nervous about being out of it. The assessor noted that his hypervigilance affected his sleep and increased substance use which is consistent with someone having been shot. She said that Mr. Powell said that he started smoking marijuana when he was 8 years old and by 13 years, he was going to buy marijuana using one of his older brothers. On house arrest, he was smoking more as a way to cope with the pain and discomfort of his injured leg and so that he could sleep.

[53] In terms of his involvement with the criminal justice system, the assessor wrote that Mr. Powell was exposed to surveillance by police. He said that he was the subject of excessive stop, search and question practices and he felt “targeted” or “picked on”.

[54] The assessor made a number of recommendations which included counselling to address that Mr. Powell likely suffers from Post Traumatic Stress Disorder. He requires support to complete his education and assistance with job placement and mentoring in order to gain employment in the construction industry.

[55] The mitigating factors in this case are that Mr. Powell has entered a guilty plea and has saved the court significant resources at a time when resources are limited. He spent some time in jail but the majority on house arrest to the present time when he hardly left the residence. Mr. Powell has a supportive family including his mother and grandmother as well as his current partner. The aggravating factors are that the offence occurred in a public place. There were several shots fired. Although he maintains that he had the gun for self-protection and the assessor suggests that he suffers from PTSD, having a gun for this reason is not an excuse.

[56] In addition to the circumstances of the offender described above, the following mitigating factors are that Mr. Powell has pleaded guilty, has demonstrated remorse, thus taking responsibility for his actions. He is fortunate to have a supportive family. He is a youthful offender. At the time of this offence, he had no criminal record. He had a difficult background where he was exposed to gun violence in the community. He would like to be able to work so that he can contribute support to his two children.

[57] With respect to the circumstances of the offence, the offence involved was discharging a firearm in a public placed in broad daylight with children in the area. Fortunately, no one was injured. Although no gun was ever retrieved, I infer from the circumstances of the offence which is admitted by the defence, that the gun was a fully loaded weapon which posed a significant danger, and that this type of offence is what the Supreme Court of Canada considered to be at the more significant spectrum of firearm related offences.

[58] The jurisprudence is clear that the primary sentencing objectives for offences involving firearms is denunciation and deterrence. The jurisprudence suggests the sentencing range for discharging a firearm is between 5 and 7 years where no one was injured. However, as the Supreme Court has said in R. v. Lacasse, 2015 SCC 64, para 60, “In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluiak, at para. 44.”

[59] As outlined above, it is also a principle of sentencing that rehabilitation is an important objective for consideration. Further, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)). R. v. Proulx, 2000 SCC 5 highlights that a conditional sentence is available for all offences in which statutory pre-requisites are satisfied and that a conditional sentence can provide a significant amount of denunciation and deterrence particularly when onerous conditions are imposed. As was stated by the Supreme Court, when the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.

[60] The first pre-requisite for a conditional sentence is that the sentence to be imposed must be less than two years. In my view, the first requirement is not met for the reasons outlined. Despite the fact that Mr. Powell is youthful and has shown some compliance with being able to live with strict terms of house arrest, it would be an error to impose a sentence of 2 years less a day for this offence as requested by his counsel.

[61] However, I am of the view that there are some exceptional circumstances involving the offence itself including what appears to be some elements of self defence. I do note, however, that this is a case where the Crown and defence filed an Agreed Statement of Facts and the defence agreed that the facts were correct. No facts were admitted regarding that the shots fired by Mr. Powell were in self defence or that they were merely warning shots. The Crown disputes this. Where a pre-sentence report contains information relating to the offence, it is improper for the court to rely on such statements which are in dispute: see R. v. Alsafi, 2016 ONSC 5837, para 10 and R. v. Howe, 2018 NSSC 274, paras 55-59. I accept that there are some elements or aspects of self-defence in the circumstances of the offence that might make the situation exceptional but I cannot make findings in that regard.

[62] It is really the circumstances of the offender which are highlighted in the IRCA and, in particular, his youth experiences and that he had no criminal record at the time which, in my view, take the sentence somewhat outside the range described by Schreck J. As I have noted above, at para. 41, Justice Schreck recognizes this when he wrote: “This was a serious offence. This was not a sporadic decision to discharge a firearm made in the heat of the moment or in circumstances which had elements of self-defence. Rather, the discharge of the firearm was planned and deliberate.” I re-state this paragraph because the case before me is precisely that: the discharge of firearm does seem to be in the heat of the moment and there are aspects of self-defence present.

[63] As the Court of Appeal has said in Morris, sentencing involves a blending of the objectives set out in s. 718 of the Code and the circumstances of the offender and the offences. I have considered the impact of systemic racism on his behaviour and the connection to the criminal activity with which he was involved. That is a relevant factor, in my view, in terms of his exposure to gun violence in his community and that, while it does not excuse his behaviour, it does explain that he was in possession of the gun seemingly for self-protection. In fact, this is one of the strongest cases I have seen regarding the impact of Mr. Powell’s experiences where he grew up in a highly racialized community, was exposed to shootings, had interactions with the police which were negative and that he was, in fact, a victim of a shooting as well as having witnessed other violent incidents. In considering all the mitigating and aggravating circumstances including the impact of systemic racism on Mr. Powell, I have determined that a sentence of 3.5 years of imprisonment is appropriate.

[64] Accordingly, I impose a sentence of 3.5 years for the s. 244.2(1)(b) offence or 42 months or 1,277.5 days. Mr. Powell spent 17 days in custody from August 30, 2021 to September 15, 2021. In accordance with R. v. Summers, 2014 SCC 26 and s. 719(3.1) at 1.5:1, this would equal 25.5 days. In light of the time spent on strict house arrest bail for almost 3 years, in accordance with R. v. Downes, I further credit him with 6 months. This leaves a balance to serve of 1,069 days of imprisonment. I further make an order under s. 109 prohibiting Mr. Powell from possessing any weapons as defined by the Criminal Code for 10 years. There will be an order that a sample of his DNA shall be taken.

Catherine Himel
Released: January 8, 2025