Reasons for Sentence

Court File No.: CR-23-00016110-0000
Date: 2025-02-11
Ontario Superior Court of Justice
Between: His Majesty the King – and – Anden Alexander

Heard: January 10, 2025
Crown Counsel: Andrew Midwood
Defence Counsel: James Miglin

Judge: S.T. Bale

Introduction

A jury convicted Anden Alexander of possession of a loaded prohibited or restricted firearm, unauthorized possession of a firearm in a vehicle, and flight from a peace officer.

The following are my reasons for sentence.

Circumstances of the Offence

On September 6, 2022, just after midnight, Mr. Alexander was driving a car southbound on Thickson Road in Oshawa. Police signalled the car to stop. In response, he pulled the car off the road and into a Honda dealership, followed by the police vehicle. He then executed a three-point turn, causing his car to face the police vehicle.

The officers exited their vehicle and approached Mr. Alexander’s car. As they did, he drove past the police vehicle, proceeded back onto Thickson Road, and then onto the westbound lanes of Highway 401.

About 9 minutes later, Mr. Alexander’s car was seen by police heading north on Brock Road in Pickering. They followed it to Brock Ridge Community Park. Mr. Alexander then made a left turn into the park and attempted to make a U-turn. However, this time, the officers were able to block him in with their vehicle. The two occupants of the car (Mr. Alexander and his co-accused) then fled on foot into the park.

A police officer chased Mr. Alexander. At one point, the officer lost sight of him. When he regained sight of him, Mr. Alexander was standing with his arms raised in the air. He was detained and handcuffed, and then taken back to where police vehicles were parked.

Approximately 20 minutes later, another officer, with the assistance of a K9, located a firearm under a bush not far from where Mr. Alexander had surrendered.

The firearm was a loaded handgun, with obliterated serial numbers, and an extended magazine with 15 further rounds of ammunition.

Circumstances of the Offender

Mr. Alexander was 18 years old at the time of the offences.

He lives with his mother, Cauline Penney, and his younger brother. Ms. Penney is a project management professional with a master’s degree in business administration. She works from home.

Mr. Alexander was born of a mixed marriage – his father was Black; Ms. Penney is white. He identifies as a Black male.

When he was two years old, Ms. Penney and Mr. Alexander’s father separated. Although the separation was initially amicable, it developed into what Ms. Penney describes as a “prolonged, expensive and traumatic family court ordeal.”

Ms. Penney re-married but separated from her second husband because of his abuse of both her and Mr. Alexander. She reports that the mental abuse suffered by Mr. Alexander profoundly affected his ability to trust and feel safe.

These experiences were deeply traumatic for Mr. Alexander and negatively impacted his relationship with his mother. However, she reports that during the past two years while he has been living at home on house arrest, they have been working on mending their relationship.

Ms. Penney believes that Mr. Alexander has a productive life ahead of him. She says that his time in jail and under house arrest have impacted his perspective on life and that he has made remarkable efforts to turn this time into a positive learning experience. He has earned high school credits while on bail and now requires only one further credit to obtain his diploma. He has been an invaluable support for his younger brother and has taken on many responsibilities around the home.

Mr. Alexander has always been an exceptional athlete and has competed in many tournaments across Canada and the United States. He has volunteered with the local basketball association coaching children and running camps, among other things.

COVID-19 was a set-back for Mr. Alexander. He was unable to participate in sports and found online learning difficult. He began working full-time and at the time of his arrest, was employed by a renovation company and as a mover for a staging company.

General Sentencing Principles

The objectives of sentencing are set out in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

Under s. 718.1 of the Code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Under s. 718.2, a sentencing judge must take into consideration both aggravating and mitigating circumstances and be guided by a number of other principles which, in the circumstances of this case, include: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and, all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered.

Positions of the Parties

Crown Position

Crown counsel’s position is that a global sentence of four years in custody is necessary. He suggests three and one-half years for the possession of loaded firearm conviction, two years concurrent for the unauthorized possession of firearm in vehicle conviction, and six months consecutive for the flight from peace officer conviction.

Crown counsel submits that the sentence should be mitigated for the time Mr. Alexander has spent under house arrest (Downes) and for exceptional conditions in the jail during his pre-sentence custody (Duncan). He submits that a total credit of five months would be adequate for those purposes. In addition, Mr. Alexander is entitled to a credit of 87 days for 58 days of pre-trial custody (Summers). Taking these credits into consideration, Crown counsel calculates a final sentence of 3.3 years (which would be three years, three months and eighteen days).

In addition, Crown counsel requests a firearms prohibition for a period of ten years, a DNA order, a forfeiture order and a three-year driving prohibition. The driving prohibition would be reduced to one year to reflect that Mr. Alexander has been prohibited from driving for the past two years as one of the conditions of his bail.

Defence Position

Defence counsel argues that I should impose a sentence of time served on the flight from peace officer conviction, and consecutive to it, concurrent 2 years less a day conditional sentences on the possession of loaded firearm and unauthorized possession of firearm in motor vehicle convictions.

Alternatively, if I reject Mr. Alexander’s plea for a conditional sentence, defence counsel argues that three years would be an appropriate sentence, with Summers, Duncan and Downes credits resulting in an effective sentence in the 18-20-month range.

Defence counsel takes no issue with the ancillary orders requested by the Crown.

Gravity of the Offences

The gravity of an offence is assessed based on the normative wrongfulness of the offence. The more serious or grave an offence, the greater the need for denunciation and general deterrence: R. v. Morris, 2021 ONCA 680, paras. 67-72.

The offences for which Mr. Alexander has been convicted are extremely serious. A loaded handgun in a public place poses a significant and immediate risk to members of the public. In Morris, at para. 68, the court states the following in relation to the gravity of this type of offence:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. It increases yet again when the gun holder flees, and still again when the gun holder discards the weapon in a public place. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. [Citations omitted.]

Aggravating Circumstances

Mr. Alexander’s possession of the loaded firearm in a public place is an aggravating factor because of the increased risk to the safety of members of the public. As observed by Schreck J. in R. v. Beharry, 2022 ONSC 4370, para. 32, the risk that a handgun poses to public safety increases once a handgun is removed from an individual's home and taken into the community where the person carrying it will interact with other people.

The fact that Mr. Alexander fled on foot into the park when police blocked him from escaping in his car is also an aggravating factor. In Morris at para. 170, the court stated:

On the trial judge's findings, Mr. Morris's flight from the plainclothes officers cannot be treated as an aggravating factor. However, his decision to continue to run once he knew he was being chased by a police officer does increase the seriousness of the offence. This is so for two reasons. First, fleeing from the police while in possession of a loaded handgun increases the risk of a confrontation, during which the weapon may be discharged deliberately, or even accidentally. Either substantially increases the risk to the public. Second, Mr. Morris's decision to run while armed with a loaded handgun endangered the safety of the police officers who were engaged in the lawful execution of their duty. Doing so aggravates the seriousness of the offence.

The fact that Mr. Alexander discarded the firearm by throwing it into a bush in a public park is also an aggravating factor, as it further increased the risk to the public and to the police. Fortunately, the police were able to retrieve the weapon with K-9 assistance before it could be found by a member of the public, with potentially fatal consequences.

Mitigating Circumstances

Mr. Alexander is a youthful first-time offender. He was 18 years old at the time he committed these offences. He is now 21.

He has strong support from his mother as evidenced by her unfailing court attendance throughout these proceedings. Based upon her evidence relating to Mr. Alexander’s conduct over the past two years, I am satisfied that his prospects for rehabilitation are very good.

Degree of Responsibility of the Offender

An offender’s life experiences may mitigate, to some degree, the offender’s moral responsibility for his actions. Those life experiences may include societal disadvantages flowing from systemic anti-Black racism in society and in the criminal justice system: Morris, at para. 75.

To mitigate the moral responsibility of an offender, "there must 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”: Morris at para. 97. However, while there must be some connection, an offender is not required to show a causal connection between the negative effects of anti-Black racism and the commission of the offence in question.

In the present case, defence counsel argues that there is a connection between racism in the community and the circumstances of the offences which mitigates Mr. Alexander’s moral responsibility for the offences.

In support of his argument, defence counsel refers to certain features of Mr. Alexander’s past—a broken home, an abusive stepfather, the absence from his home of a father figure, and a traumatic family court proceeding. He says that these features are disproportionately found in racialized communities. However, whether this is an accurate statement or not, there is no evidence to suggest that Mr. Alexander has been subject to overt racism and no evidence of a connection between systemic racism and his choice to commit the offences in question.

In the result, I am not satisfied that Mr. Alexander’s degree of responsibility for his offences is reduced by overt or systemic anti-Black racism. I do, however, consider that his choices were likely influenced by the difficult upbringing his mother has described.

Range of Sentence

In Morris, the Court of Appeal noted that the gravity of gun crimes involving the unlawful possession of loaded handguns in public places requires sentences emphasizing denunciation and deterrence. For that reason, the court held that three-year sentences may be appropriate for most unlawful firearm possession cases. However, the court also held:

• that the restraint principle requires the court, if it determines that a sentence of less than two years would be appropriate, to consider a conditional sentence;
• that in cases involving young offenders with no criminal record and good prospects for rehabilitation, a conditional sentence may be appropriate even for serious firearm possession offences; and
• that conditional sentences may aid in addressing the ongoing systemic problem of the over-incarceration of young Black offenders.

In support of his position that Mr. Alexander should be sentenced to a four-year penitentiary term, Crown counsel cites: R. v. Harutyunyan, 2012 ONSC 58, sentence appeal dismissed, 2012 ONCA 637; R. v. Beals, 2015 ONSC 2911; R. v. Mansingh, 2017 ONCA 68; R. v. Thavakularatnam, 2018 ONSC 2380; R. v. Griffith, 2019 ONSC 358, aff’d 2021 ONCA 302; R. v. Mohiadin, 2020 ONSC 47, varied 2021 ONCA 122; and R. v. Lovell, 2023 ONSC 5776. However, in the circumstances of this case, I prefer to rely on the more recent case of R. v. Stewart, 2022 ONSC 6997.

In Stewart, at para. 80, following a review of relevant authorities, the court concluded that the range of sentence for a young first offender convicted of a handgun possession offence, where there is no evidence of other criminality such as drug trafficking or threatening, is from upper reformatory sentences to sentences of three years.

Having considered the gravity of the offences, Mr. Alexander’s degree of responsibility, the aggravating and mitigating circumstances and the objectives and principles of sentencing, I am satisfied that a sentence at or near the two-year mark is appropriate for Mr. Alexander. I must therefore consider whether to impose a conditional sentence.

In support of his position that I should impose a conditional sentence, defence counsel relies on Morris, Beharry and Stewart, and on R. v. Moses, 2022 ONSC 332; R. v. Desmond-Robinson, 2022 ONCA 369; R. v. Lewis, 2022 ONSC 1260; R. v. Marier, 2023 ONSC 5194; and R. v. Hussey-Rodrigues, 2024 ONSC 2671.

In particular, defence counsel relies on Stewart and Marier to argue that conditional sentences remain available for gun crime, even in cases with serious aggravating factors, including cases where an offender flees from police and abandons the firearm in a public place.

Crown counsel argues that in the present case there are aggravating factors not found in Stewart and Marier and an absence of some of the mitigating factors found in those cases.

In Stewart, the offender was found guilty of four counts relating to possession of a loaded prohibited firearm with an over-capacity magazine. Running from police, he threw the firearm away in a school yard, and kept running. He was arrested 7 or 8 minutes later, a couple of blocks away. Police searched for a firearm for about an hour but because it was getting dark and starting to rain, they decided to resume the search the following morning. At approximately 7:00 a.m., they located the firearm near a door used by janitorial staff, and not far from both a play structure and an entry door to the school. The offender had just turned 19 at the time of the offence and was 23 years old at the time of sentencing. He was sentenced as a first offender. As in the present case, the Crown sought a four-year penitentiary sentence; the defence sought a conditional sentence of two years less a day, followed by probation.

In Marier, the offender pleaded guilty to possession of a loaded prohibited firearm. Police were near his home to arrest him and execute two search warrants. While they were there, the offender left his home and walked toward his car. When he saw the police officers, he turned around and fled. He was eventually found hiding under a tree with the assistance of a police K-9 unit. The following day, a citizen called police and reported having found a satchel containing a firearm in their backyard. The offender had discarded the satchel while fleeing from police. The handgun was loaded with 10 rounds of ammunition.

The gravity of the offences in both Stewart and Marier is very similar to the present case, and both offenders received conditional sentences. I acknowledge, however, that in both cases there were mitigating factors absent from in Mr. Alexander’s case.

In both Stewart and Marier, the sentencing judges found there to be a connection between racial bias and their commission of the offences. I have not found such a connection in Mr. Alexander’s case. And in Marier, but not in Stewart, the offender pleaded guilty, unlike Mr. Alexander. Crown counsel argues that another distinguishing feature in Mr. Alexander’s case is that the serial number on the handgun was defaced. However, while it may be that a defaced serial number was not mentioned in the cases relied upon by the defence, I am not prepared to conclude, for that reason alone, that the serial numbers in those cases were not defaced.

Importantly, however, I am satisfied that Mr. Alexander’s prospects for rehabilitation are very good. I accept his mother’s view that he has a productive life ahead of him. During his time under house arrest, he remained out of trouble, took on many responsibilities around the home and furthered his education. He has, in the past, shown himself to be an asset to the community.

I am also satisfied that a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing. Mr. Alexander is a first-time offender. He was very young at the time of the offences. He has been on bail since November 2022 and has abided by his bail conditions. He has very good prospects for rehabilitation. His possession of the firearm was not connected to other criminal activity. In the result, balancing the need for general deterrence and denunciation with the principles of restraint and rehabilitation, I find that a conditional sentence, followed by a term of probation is appropriate in this case.

Mr. Alexander spent 58 days in pre-trial custody for which he is entitled to a credit of 87 days. While in custody, he was subject to lockdowns for 19 days and triple-bunked for 2 days. For those jail conditions, I would grant him an additional five days’ credit, resulting in a total credit of 92 days.

Defence counsel did not request additional credit based on R. v. Downes. Rather, he asked that I consider Mr. Alexander’s time under house arrest as an indication of Mr. Alexander’s willingness to abide by court orders and for its deterrent value. I have done so.

While I might otherwise have made the sentence for the conviction on flight from police consecutive to the sentences for the firearms charges (by way of time served), in the present circumstances and considering the totality principle, the sentences on all convictions will be concurrent.

Disposition

For the reasons given, Anden Alexander is sentenced to a term of imprisonment of two years less 92 days, to be served in the community, pursuant to a conditional sentence order, on conditions to be set out in the order.

Following the completion of his conditional sentence, Mr. Alexander will be on probation for a further period of two years.

In addition, he will be subject to the following ancillary orders:

• a firearms prohibition for a period of ten years;
• a DNA order;
• a forfeiture order; and
• a one-year driving prohibition.

Because Mr. Alexander has been unable to maintain employment while in pre-trial custody and under house arrest, the victim surcharge will be waived.

“S.T. Bale”
February 11, 2025