Court File and Parties
Indictment No. 25-50000217
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
v.
MARCUS WEISE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE A. MOLLOY
On March 27, 2026 at Toronto, Ontario
APPEARANCES:
R. Kenny Counsel for the Federal Crown
A. Herscovitch Amicus Curiae for Marcus Weise
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE 1
Transcript Ordered:
April 9, 2026
Transcript Completed:
April 24, 2026
Ordering Party Notified:
April 24, 2026
FRIDAY, MARCH 27, 2026
R E A S O N S F O R S E N T E N C E
A. Introduction
For reasons dated July 30th, 2025, I convicted Marcus Weise of three offences relating to a firearm and two counts relating to a break and enter into an apartment where the firearm was found. The facts underlying those convictions are set out in that decision: R. v. Weise, 2025 ONSC 4377.
It is now my task to sentence Mr. Weise for these offences.
Following my decision finding Mr. Weise guilty of these offences, the Crown indicated they would be seeking to have Mr. Weise declared a dangerous offender and sought to revoke his bail. I made an order revoking his bail and Mr. Weise has been in custody since that time. Mr. Weise thereupon dismissed the lawyer who had represented him at trial and filed complaints against him and the trial Crown with the Law Society of Ontario. In light of this, Mr. Kenny stepped in as the Crown. Mr. Weise was unable to get Legal Aid funding for the dangerous offender hearing. In light of the issues involved, I did not think Mr. Weise was
capable of defending himself on that application and I appointed Mr. Ariel Herscovitch as amicus curiae.
On November 14th, 2025, I heard submissions from counsel as to a threshold issue on the dangerous offender application. For reasons issued on December 4th, 2025, I held that the offences on which Mr. Weise had been convicted did not constitute a "personal injury offence" within the meaning of the Criminal Code dangerous offender applications: see R v. Weise, 2025 ONSC 6789.
The matter, then proceeded to the sentencing stage. Again because of the serious issues raised, I appointed Mr. Herscovitch as amicus with a broad discretion to assist the court on these issues.
Having considered the general principles of sentencing and how they apply to the circumstances of this case, I have determined that the appropriate global sentence for Mr. Weise is 7 years. From that sentence, I would deduct 900 days for Summers credit and a further 500 days for the Duncan/Marshall factors. That leaves 3 years, 1 month and 29 days remaining to be served.
B. Circumstances of the Offences
For present purposes, I will provide a brief summary of the circumstances of the offences.
Shortly before midnight on October 9th, 2022, members of the Toronto Police Service attended apartment 613 at a Toronto high-rise apartment to execute a search warrant. Mr. Weise was one of the occupants in that apartment at the time the police entered. In an attempt to evade the police, he ran to the balcony and vaulted from there onto the balcony directly below it, unit 513. The tenant in that unit, an elderly woman who lived alone, heard him knocking on the glass door of her balcony. He told her to open it. She refused. He then smashed the window and entered the apartment, terrifying this woman in the process. He ran through the apartment and opened the door to the apartment hallway, but, upon seeing officers arriving there, ran back into the apartment. The officers broke down the door and apprehended Mr. Weise.
The next day, the tenant found a loaded Glock 47 semi-automatic handgun secreted on her balcony. I was satisfied beyond a reasonable doubt that this firearm was hidden there by Mr. Weise.
Based on this, I found Mr. Weise guilty of offences at counts 8, 9, 10, 11 and 12 on the indictment as follows:
Count 8: damage to the property at apartment 513;
Count 9: breaking and entering apartment 513;
Count 10: possession of a loaded, prohibited firearm contrary to Section 95 of the Criminal Code;
Count 11: possession of that same weapon with its serial number filed off;
Count 12: possession of a prohibited device being an oversized magazine with the capacity to hold 22 rounds of ammunition.
C. Circumstances of the Offender
At the time of these offences, Mr. Weise was just about to turn 28 years old. When not in custody, he has mainly lived with his mother. He has had little contact with his father since his parents' relationship broke down when he was three years old. However, he has a close relationship with his mother and she has been very supportive throughout his life, including now.
As a child, Mr. Weise had behaviour problems at school and was eventually diagnosed with Attention Deficit Hyperactivity Disorder. He was prescribed medication and his mother reported to the probation and parole officer who wrote the pre-sentence report (“PSR”) that she believed the medication was effective. However, Mr. Weise was resistant to taking it consistently and by the time he was 13 had stopped taking it altogether.
Although only 28 years old now, Mr. Weise has a criminal record that is serious and related. He has either been in custody or subject to supervision in the community for over half his life.
When just under the age of 14, he was involved in a fight with several others during the course of which Mr. Weise pushed a teenage girl to the ground, punched her in the head, threatened to shoot her, and pistol whipped her in the face with what appeared to be a handgun. When police executed a search warrant at his home, they found a loaded 22 caliber revolver. He was tried in Youth Court and convicted of possession of a loaded restricted firearm and assault with a weapon. He was sentenced to time served of 115 days in custody and a two-year probation order. The Youth Court justice also issued a weapons prohibition order for two years.
At the age of 18, while still subject to the probation order and weapons prohibition order, Mr. Weise was part of a group of young men who planned and carried out the murder of another 16-year-old youth. The victim was shot in the head execution-style in the stairwell of an apartment building. Although Mr. Weise was not the shooter and not present at the time of the shooting, he was found guilty of first degree murder based on the nature of his involvement. It appears from the reasons of the trial judge that Mr. Weise showed up at the scene of the murder shortly after it happened and he had another firearm on his person at that time. Nordheimer J. (as he then was), sitting as a Youth Court judge, held that Mr. Weise should be sentenced as an adult because the proposed youth sentence would not provide the necessary level of protection to society. He imposed a life sentence with a 10-year parole ineligibility, reasoning that this would provide a longer period for rehabilitation to take hold and a greater level of supervision.
On January 13th, 2017, on appeal from that sentence, the Court of Appeal held that the YCJ erred in imposing an adult sentence and instead imposed the sentence proposed by defence counsel at trial, a 10-year youth sentence with an IRCS order (rehabilitative custody supervision) and stipulated that six years of that sentence would be in custody.
At the time of the offences now before me, Mr. Weise had only recently been released from jail after serving the custodial portion of that sentence and was still subject to the portion of the sentence to be served in the community.
Mr. Weise was also convicted in June 2015 of possession of a weapon and carrying a concealed weapon and sentenced to five months on each count.
I believe Mr. Weise was also subject to three separate court orders prohibiting him from being in possession of a weapon at the time of these offences, although the actual charges with respect to those breaches have been withdrawn at the request of the Crown.
It also appears that while Mr. Weise was in custody and being brought to court for an appearance in the charges against him, he was found to be in possession of a knife and that is the subject of a the carrying a concealed weapon charge.
In addition, Mr. Weise breached his bail term in 2024 and was sentenced to 20 days of custody, which was satisfied by a credit against time served.
Mr. Weise is in a relationship with a woman named Kushiya Lewis. She has only known him for "about one year" according to the support letter she wrote in January 2026. I will deal with this relationship later in these reasons under the heading "Mitigating Factors".
Mr. Weise completed high school in December 2013. In between periods of incarceration, he worked in the construction industry, including doing drywall and stucco installation. He also completed a plumbing course in 2018 through Stratford Career Institute. In 2024, he became a member of the International Union of Painters and has maintained that membership to date.
D. Position of the Parties
The Crown seeks a global sentence of nine years, a DNA order and a Section 109 order for life. Mr. Herscovitch submits that the appropriate range of sentence is four to five years. There is no objection to the ancillary orders sought.
Both counsel agree that as of February 28th, 2026 Mr. Weise had served 570 days in pre-sentence custody in three separate periods of incarceration. They agreed that the appropriate Summers credit (at a ratio of 1.5 to 1) would be 855 days. As of March 28th, 2026, Mr. Weise will have been in custody for an additional 29 days for a total of 599 days. I will round that up to 600, which would be a Summers credit of 900 days.
The Crown submits that no further credits are appropriate. The remaining time to be served would therefore be approximately 6 years and 6 months.
Mr. Herscovitch submits that Mr. Weise should be allocated a credit of 6 months for restrictive bail conditions for a period of 14 months and a further 6 years based on the harsh conditions of his pre-sentence incarceration. That would result in a time-served position.
E. General Principles of Sentencing
I will not review all the applicable general principles of sentencing, but rather focus on those most applicable to this case.
Denunciation and deterrence remain the most influential factors in sentencing, given the circumstances of these offences and this offender and the grave danger that firearms represent in our community. However, in reaching a fit sentence, I must also take into account any realistic prospects of rehabilitation for this offender.
I am required to consider the aggravating and mitigating factors as well as the particular circumstances of Mr. Weise as a young black man who grew up exposed to violence in his community and disadvantage connected to his race.
The principles of totality and restraint require that the sentence not be so severe as to be considered crushing or that would nullify rehabilitation prospects.
I must also consider consistency in sentencing which requires that a sentence in any given case should not depart significantly from sentences imposed in other similar cases involving similarly situated accused.
Finally, having come to a conclusion as to the appropriate sentence, I must make appropriate deductions for the time already served.
F. Aggravating Factors
The prior and related criminal record is the most serious aggravating factor. Although convicted twice before of offences involving violence with a firearm, Mr. Weise was once again in possession of a loaded firearm. The fact that he was still serving the community portion of his first degree murder sentence is also aggravating, as well as the multiple weapons prohibition orders that he has persistently ignored including on this occasion.
In addition, Mr. Weise has a history of breaching other court orders, including community supervision orders and terms of his bail in a variety of ways, as well as breaching the Highway Traffic Act provisions which required him to have a licenced driver with him when he was driving as he did not have a full driver's licence.
His criminal record and conduct appear to show a man who has no regard for the law.
The particular firearm involved in this case had its serial number filed off, which is aggravating. Also, the over capacity magazine is aggravating, deliberately designed to fire more bullets more quickly than the standard size magazine. These two features are also separately charged, a point to which I will return when dealing with how to allocate the various sentences for the individual offences and whether to make them consecutive or concurrent.
Mr. Weise entered the apartment on the fifth floor late at night, knowing there was a woman occupant inside. He smashed in the window violently. She was understandably terrified and traumatized. Discarding the firearm as Mr. Weise did, also created a situation of danger. He had no idea who might find that gun or what tragedy might then unfold. When the occupant of the apartment found the gun, she did the responsible thing and called the police, but finding the gun there greatly increased the trauma she experienced. Indeed, she was hospitalized as a result.
G. Mitigating Factors
The strongest mitigating factor for Mr. Weise is his difficult childhood and youth, which goes some distance in explaining his persistent criminality since the age of 13.
In R. v. Morris, the Ontario Court of Appeal recognized the existence of anti-black racism in our society and how it can have an impact on sentencing offenders from the black community. The Court of Appeal held that social context evidence relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the balancing of the principles and objectives of sentencing to achieve a sentence which best serves the principles of sentencing: R. v. Morris, 2021 ONCA 680 at paragraph 13.
I will not go through the extensive evidence before me as to the relevance of these principles to Mr. Weise. He most definitely falls within that category of individuals recognized in Morris. I agree with the submissions of Mr. Herscovitch that Mr. Weise's background hits the trifecta of the Morris factors: (1) the lack of a positive male role model growing up, including that his father left the family when Mr. Weise was only three years old and was a drug addict throughout most of his life; (2) exposure to violence as a child and youth, both by witnessing domestic violence at home and gun and other violence amongst peers in the community; and,(3) negative experiences with police as a youth. While these factors do not excuse his criminal behavior, they do put that behaviour into context and mitigate his degree of personal responsibility. Further Mr. Weise's understanding of these root causes goes some way in supporting his rehabilitation going forward.
Another mitigating factor is that although Mr. Weise has an unenviable criminal record, he is still a relatively young man (31 years old at the date of sentencing).
The PSR is generally positive about his outlook for the future and his stated plan to work in one of the construction trades.
I also had the benefit of a report by social worker, Teresa Riccitelli, who has been providing therapeutic services to Mr. Weise from 2019 through to the present. She wrote that Mr. Weise had responded well to his therapy and had demonstrated a commitment to bettering himself, although his progress has been limited by periods of time in custody and restrictive bail terms when he is not in custody. Ms. Riccitelli is of the opinion that Mr. Weise is particularly motivated to change over the past year and has demonstrated insight and self-awareness with respect to his criminal past. She wrote:
Overall Marcus has demonstrated notable resilience in the face of prolonged legal involvement, restrictive supervision conditions and repeated disruptions to community reintegration. Despite these challenges, he has remained engaged, forward-looking and committed to personal change. His strengths, protective factors and insight suggests that with balanced therapeutic support, realistic community opportunities and appropriately balanced conditions, Marcus has the capacity to maintain progress and further reduce his risk of reoffending.
Notwithstanding the highly positive nature of this report, I note many of the same things were said about Mr. Weise at the time of his sentencing for first-degree murder, both at trial and in the Court of Appeal. One of the reasons given by the Court of Appeal for setting aside the adult sentence imposed on Mr. Weise was his prospects for rehabilitation and how those would be enhanced by the structure and support he would receive through the youth sentence proposed. That was in 2017.
In 2019, Ms. Riccitelli started working with him. While this was all in progress and shortly after serving the custodial portion of his sentence, Mr. Weise committed these offenses in 2022. However, I do accept that Mr. Weise seems motivated to change, has completed some programming while in custody and has a real prospect of rehabilitation upon release from custody. He also has a plan for his release, which includes moving away from the physical environment associated with his criminal activity and obtaining employment in some kind of trade. He has taken positive steps toward this through contacts with the Urban Res program and the Fred Victor Mission.
Mr. Weise also has considerable and stable support from his mother and other family members. I'm not sure how this will play out if he leaves Toronto, but hopefully these two things will not cancel each other out.
In addition to a letter of support from Mr. Weise's mother, I also had a letter from Kushiya Lewis who describes herself as his "girlfriend", although she has only known him from one year during which he was either on a strict bail or in jail. She became pregnant, but miscarried in August, which she attributes to the stress of being without him (he was in jail). Mr. Weise maintains that she is his fiancée and sees himself as having a family with her in the future. She already has three children aged 24, 19 and 7, all from different prior relationships. The 24-year-old no longer resides with her and the 19-year-old is at college on a football scholarship, but the 7-year-old lives with her in the United States. The father of the 7-year-old is deceased.
The major complicating factor is that Ms. Lewis lives and works in the United States of America. Mr. Weise, because of his criminal record, would not even be permitted to visit the United States. Although he sees Ms. Lewis as being part of his life plan, I'm not sure how realistic that is. His failure to see that is a concern.
Mr. Weise was subjected to particularly harsh conditions during his pre-sentence custody. As the Court of Appeal held in R. v. Marshall, this can be treated as a mitigating factor in sentencing. However, the Court of Appeal held that it is open to the sentencing judge to calculate this as a credit against the appropriate sentence, provided that it does not take the sentence below what would otherwise be a fit sentence for the offence. For reasons I have stated in numerous other decisions, I consider this to be the preferable approach, and I will therefore deal with that deduction at the end of my analysis.
H. Parity in Sentencing
Sentencing must not be an arbitrary process. It is important to consider what similar offenders have been sentenced to for similar offences committed in similar circumstances. Sometimes, including in this case, this can be an exceedingly difficult task. Mr. Weise's criminal record is serious, but it was attained as a youth. Although he was appropriately convicted of first-degree murder, it must be noted that this was on the basis of his participation and assistance in the plan to kill the victim and that he was not the shooter, nor was he present when it was carried out. He acted as part of the group, and he was only 16. His prior gun violence offence was also as part of a group. He was only 13 and he did not fire the gun. That is not to say the record is not serious, because it is serious. However, it does somewhat reduce his moral blameworthiness, particularly when seen in light of the cultural context referred to in Morris. Other individuals found in possession of a gun for the third time are unlikely to have similar backgrounds.
Similarly, it cannot be denied that Mr. Weise's possession of this gun falls within the "true crime" category, even though there is no accompanying offence such as drug trafficking to give it context. Again, this does not reduce the seriousness of the offence, but it does make it difficult to find comparators. The Crown cited five decisions: R. v. Owusu, 2024 ONSC 671 per Code J.; R. v. Weir, 2018 ONSC 783 per Garton J.; R. v. Graham, 2018 ONSC 6817 per Code J.; R. v. Barton 2017 ONSC 4039 per Akhtar J.; R. v. I.S., 2011 ONSC per Quigley J.
In Owusu, Code J. did a helpful analysis of the usual sentencing range for Section 95 recidivists. He concluded that the range is 6 to 9 years. I agree. However, there can always be circumstances that take a case above or below the range.
In Owusu, the offender had two loaded prohibited firearms with features similar to Mr. Weise's firearm. He was sentenced to 8 years on each gun, but to be served concurrently. He also had 4 ounces of Fentanyl which although sentenced separately provides an aggravating context for the firearm possession not present for Mr. Weise. Mr. Owusu also fled from the police and hid the firearms on somebody else's property which is somewhat similar to what Mr. Weise did. However, Owusu discarded his guns in a backyard that had a children's play structure in it, which is slightly more aggravating. On the other hand, he did not break into that home as Mr. Weise did. Mr. Owusu's criminal record was also as a youth. It was similar to that of Mr. Weise, but slightly worse. Morris factors were also present.
In Weir, a 35-year-old offender was sentenced to 7.5 years for possession of a loaded firearm and discharging that firearm into the air in a reckless manner. He had a similar cultural context as Mr. Weise and a somewhat similar youth record. However, he also had a far more aggravating criminal record as an adult, which included manslaughter with a firearm in 2003 and possession of a loaded firearm in 2001. The circumstances of Mr. Weise's possession of a firearm did not include firing it and his criminal record is considerably less serious.
The offender in Graham was 31 years old at the time he committed the offences of possession of a loaded firearm, along with possession of cocaine for the purpose of trafficking. He had a difficult childhood, but Code J. found that the defence submission about his having been sexually abused and subjected to blatant racism had not been proven. Mr. Graham had a worse criminal record, which included attempted murder and possession of a sawed-off shotgun at the age of 21 and multiple drug convictions and multiple convictions for breaching court orders. The sentence imposed for the gun was 8 years. Mr. Weise's situation is less serious due to the absence of drugs and a youth criminal record that is not as aggravating.
In Barton, Akhtar J. imposed a sentence of 9 years on a 32-year-old offender with a criminal record that included three previous firearms offences. The gun was possessed in association with the offender trafficking in drugs. Just moments before the police arrived to execute a search warrant, the offender hid the gun in a planter outside his apartment door. Again, the distinguishing features are the more serious criminal record and the gun being possessed as a tool of the trade of drug trafficking.
The decision in I.S. is somewhat more dated, being from 2011. The two offenders were a mere 18 and 20 at the time of the offence. Both had related youth records. They were found in a stolen car in a McDonald's restaurant parking lot with two loaded firearms. The global sentence imposed was 7 years for both guns.
Mr. Herscovitch provided me with three cases on the issue of the appropriate sentence in this case: R. v. Morris, 2023 ONCA 816, which also deals with the issue of cultural context for racialized offenders; R. v. Prevost, 2025 ONSC 5963 per Himel J.; R. v. Carrol, 2014 ONSC 2063, a decision of mine.
I will deal first with Carrol in which the offender was 23 years old at the time of the offence. I found him guilty of possession of a loaded handgun. There was additional ammunition nearby, which I considered to be an aggravating factor. The gun was under a cushion on a couch in a garage backing onto an alleyway, which was being used as a kind of hangout. Although he lived here almost his entire life, Mr. Carrol was not a Canadian citizen and would be deported after serving his sentence, which I considered to be mitigating. However, this may be balanced with the Morris factors for Mr. Weise. Mr. Carrol had an extensive youth record and two offences as an adult. His youth record was mostly property offences and breach of court orders, but there was also a conviction for possession of a prohibited weapon (a knife) and a conviction for robbery with violence. As an adult, he had a conviction for carrying a concealed weapon (a knife) and possession of drugs for the purpose of trafficking, and careless storage of ammunition in the trunk of a car. Mr. Carrol was in breach of a probation order at the time, which I took into account as an aggravating factor. I sentenced him to 4 1/2 years for the gun, and an additional 1 1/2 years for breaching three separate weapons prohibition orders, to be served consecutively, for a total sentence of 6 years. I specifically noted that the prohibition orders were made in the context of carrying a knife and that I would have considered it to be more aggravating if it had related to firearms. Mr. Weise's situation is worse. He does not have the mitigating effect of deportation to a country where he no longer has a family or has any family or connections. Mr. Weise's criminal record is not as long, but it is more serious.
There are two ways to deal with the prohibition order breaches. The preferred way, in my view, is to sentence them separately and consecutively. However, it can also be treated as an aggravating factor on sentencing, which I will do for Mr. Weise as the Crown did not proceed on the charges for the breaches. In my view, Mr. Weise is deserving of a somewhat more severe sentence than Mr. Carrol.
The Prevost decision must immediately be distinguished because it was imposed following a guilty plea, which is a significant mitigating factor. He also would be deported, a mitigating factor Mr. Weise does not have. Mr. Prevost had a very difficult childhood and Himel J. took Morris factors into account in considering mitigating factors. Prevost had a youth record for two robberies and possession of a loaded restricted weapon. At the time of his weapons offence, he was also in breach of his bail, in breach of a prohibition order, and had failed to appear for court on a prior trial date. Justice Himel found that the appropriate global sentence was 56 months. I note again that this was on a guilty plea.
In Morris, the trial judge had sentenced the offender to 6 years and 9 months for possession of a loaded firearm, dangerous driving, and breaching court orders. This was after a deduction for time served. In an attempt to flee from police, Mr. Morris lost control of the car he was driving and wound up in a ditch. He had a handgun with him and threw it away, but the police found it. Mr. Morris was 26 years old and had a 2013 youth conviction for extortion and possession of a weapon, an unrelated 2017 conviction, and a conviction in 2018 for possession of a loaded firearm. The original sentencing judge did not have the benefit of a Morris report. The Court of Appeal, however, did have one and found it to be mitigating. The Court of Appeal reduced the sentence by 1 year, it would appear based on the Morris report as the court did not find fault with any other aspect of the sentencing decision. The gun in question was not operable, but could be made operable relatively easily.
The trial judge had imposed a sentence of 5.5 years for the gun, but reduced it to 5 because the gun was not operable. The sentencing judge also added 1 year consecutive for the breach of the weapons prohibition order. The effective sentence for the gun with the aggravating factor of the prohibition order breach was 6.5 years, which the Court of Appeal reduced by 1 year.
I. Appropriate Sentence in this Case
As I said earlier, it is difficult to put Mr. Weise's offence and his personal circumstances into these ranges due to the unique circumstances of each. I agree with the Crown that denunciation and deterrence and in particular protection of the public must be paramount. The prospect of rehabilitation is a real one, but I do note that this was the main basis for converting the adult sentence for first-degree murder to a youth sentence, and Mr. Weise had not even completed that youth sentence before he was once again in the community with a loaded handgun.
The prior prohibition orders are also aggravating in all the circumstances, even though not the subject of separate charges.
I believe the range could be as low as 5 years if there were sufficient mitigating circumstances, but 6 to 9 years is the usual range. I do not agree that Mr. Weise is at the top of that range because his criminal record is almost entirely as a youth and because of his reasonable prospects for rehabilitation.
I find that the appropriate global sentence is 7 years for the handgun and 2 1/2 years for the break and enter, but I will make that concurrent to reflect the totality principle. I have taken the over capacity magazine and the defaced serial number into account as aggravating factors and also the breach of court orders.
J. Credits
The question then is the credit to which Mr. Weise is entitled. Both counsel agree that the Summers credit should be 900 days as adjusted for today's date.
Mr. Herscovitch proposed an additional 6 months credit for time spent on restrictive bail conditions. I recognize that Mr. Weise's personal liberty was greatly restricted. However, he was fortunate to obtain bail at all given his criminal record and his persistent breaches of court orders, the breach of the community supervision portion of his youth sentence for murder, and the strength of the Crown's case, not only on the firearm possession but also the armed robbery/home invasion charge on which I acquitted him.
In these circumstances, I am not inclined to exercise my discretion to provide any reduction for time spent on bail. Those restrictions were necessary for the protection of the public.
The Duncan credit for the harsh conditions at the Toronto South during Mr. Weise's time is a different matter. Mr. Weise is clearly entitled to some credit due to the deplorable conditions he has endured there. As of the date of sentencing submissions, he had accumulated 570 days of time served. There is no mathematical formula for determining the amount of any credit. The amount is entirely discretionary. However, the Court of Appeal held in Marshall that this form of credit cannot be used to reduce the sentence to one that is unfit.
There are a variety of factors to be taken into account. Mr. Weise's time in custody was partially at the Toronto East Detention Centre and partially at the Toronto South Detention Centre.
The Toronto East records are from January 6, 2023 to August 28, 2026 for a total of 235 nights. However, about half of that time has already been credited for another offence. There were some lockdowns during that period, but only two days were full lockdowns. All the rest were for two or three hours at a time, which is not great, but not terribly onerous. For the 235 nights Mr. Weise was there, he was triple bunked for 184, meaning there were three inmates in a cell designed for two. Half of that time would be 92 nights.
At the Toronto South, Mr. Weise was triple bunked for 213 nights. In order to determine that percentage, I have deducted 118 days credited for time at the Toronto East from the 570 total days in custody, which means there were 452 days of credit for the Toronto South. Mr. Weise was triple bunked at the South for 213 nights. The Toronto South records only go up to January 22nd, 2026. According to those records, there was no triple bunking from December 25th, 2025 through to January 22, 2026, except for the night of January 5th, 2026. However, from June 18th, 2025 through to December 24, 2025, Mr. Weise was triple bunked every night. That six-month period is exceptionally harsh. July and August 2024 were also bad months with triple bunking almost every night. There are no records for the period from January 22, 2026 to February 28, 2026, which is an additional 38 days.
Given that the percentage of triple bunking for the whole period of time was slightly over 50 percent, I will estimate a further 20 days for that period of time. That brings me to the total of triple bunking to 325 days: 92 at the East; 213 at the South up to January 22, 2026; and 20 days since then. A total of 325 days with three men crammed into a cell that is by no means spacious for two is extremely harsh. In addition, for many of those days at the Toronto South, the unit was also on lockdown which would exacerbate the discomfort. The overlap between lockdown and triple bunking and the fact that these conditions continued over large blocks of time, adds to the misery. Some of the lockdowns were for short periods of time, but most were for extended time periods, and some were all day. There were lockdowns for 154 days of the time in custody at the South. By my rough count, about 20 of those were only for 2 hours or so. However, the remaining 134 were for all, or most of, the day. The only reason given for any of them was staff shortages, which has been a consistent and ongoing problem at the Toronto South. 134 days out of 452 days is approximately 30 percent of the time. I will estimate a further 30 percent of the days between January 22nd and February 28th, 2026 for another 11 days of lockdown and therefore, taking into account for the 570 days in custody, a total of 325 days triple bunked and 145 days of lockdowns.
In addition to the lockdowns and triple bunking, there were three other main areas of hardship experienced by Mr. Weise: (1) he was the victim of an attack when in custody during which he was slashed in the face; (2) a lack of proper medical care; and (3) unsanitary conditions.
On July 6, 2024, while in custody at the Toronto South, Mr. Weise was attacked by a group of inmates. He sustained a deep laceration to the left side of his face. He was transferred by ambulance to hospital. His wound required 21 stitches to close. He was then returned to the Toronto South and for a short period of time was in the medical unit. In my view, his initial treatment appears to have been adequate. Mr. Weise was released on bail in August 2024. He attended the Toronto Dermatology Clinic in August 2024 with respect to scarring that had developed along the incision line. He was prescribed injections of Kenalog every four to six weeks. Although Mr. Weise said in his affidavit that he was supposed to and did have those injections every two weeks, this is not supported by the medical records. The prescription was written in August 2025. Thereafter, he had the injections on December 17th, January 28th, February 28th, April 4th and May 9th. This would be about every four or five weeks as prescribed. Mr. Weise went back into custody when I revoked his bail in June 2025. He sought follow-up care for the scarring at the Toronto South as early as June 30th, 2025, as is confirmed by the Toronto South medical records. Although the prescription was sent to the Toronto South, no injections were given for the scarring despite repeated requests for follow-up. It has now been nine months since he requested this follow-up and he has received no treatments. No explanation has been provided. I do not consider this to be acceptable.
Mr. Weise also reported in his affidavit that he has experienced maggots and silverfish coming out of the range, black flies, black mold in the showers, a bedbug outbreak, a lack of heating in winter, and a strike of medical staff in December 2025 that lasted one week. I recently heard other reports of the bedbug outbreak from another inmate at the Toronto South. When Mr. Weise was brought to court for his sentencing hearing on February 27th, he brought with him a small container of bugs which he said he took from his cell and which amicus counsel confirmed had a variety of insects, including silverfish. We could not proceed that day because counsel was late and I had another matter scheduled. However, when Mr. Weise returned on February 28, he brought another small plastic container which contained about 10 or so dead flies that appeared to be black flies or fruit flies. Although Mr. Weise exaggerated the number of times he was supposed to have Kenalog injections, he does not appear to have exaggerated the bug problem. I am prepared to accept that, on top of everything else Mr. Weise has had to endure, he also has been housed in unsanitary conditions.
Given the ongoing harsh conditions of Mr. Weise's pre-sentence custody and the multiple kinds of hardship, I consider it appropriate to deduct an additional number of days for all the time served rather than attempting to zero in on particular areas of hardship.
In my view, the severity of the conditions and the impact they have on Mr. Weise warrant a Duncan/Marshall credit of 500 days. That would bring the total credits to 1400 days. The 7 year sentence is the equivalent of 2,555 days. After deducting 1400 days, that leaves 1155 days remaining to be served or 3 years, 1 month and 29 days.
I am required pursuant to Marshall to consider whether this credit renders the sentence unfit. In my view, the harshness of the time served must be part of that consideration. I note that this is still a penitentiary sentence and I consider it to be fit.
K. Conclusion
I have concluded that the appropriate global sentence is 7 years. I will allocate the sentences as follows:
count 10 (possession of loaded Glock 27 pistol) - 6 years;
count 11 (possession of a firearm with the serial number removed) - 5 years concurrent to count 10;
count 12 (possession of a prohibited device, an overcapacity magazine)- 1 year consecutive to count 10;
count 8 (damage to the window) - 6 months concurrent;
count 9 (entering a dwelling house)- 2 1/2 years concurrent.
The global sentence is 7 years. From this will be deducted 1400 days to reflect 900 days Summers credit and 500 days Duncan credit for exceptionally harsh conditions during the time served. The sentence remaining to be served is 3 years, 1 month and 29 days.
In addition, there will be a DNA order and a Section 109 order for life.
Any issues, counsel?
R. KENNY: Not on behalf of the Crown, Your Honour.
THE COURT: Pardon me?
R. KENNY: Not on behalf of the Crown.
A. HERSCOVITCH: No, thank you. Just brief indulgence. No issue, Your Honour. Thank you.
THE COURT: Thank you.
FORM 3
ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Jennifer Coffin , certify that this document is a true and accurate transcript of the recording of R. v. Marcus Weise in the Superior Court of Justice held at 361 University, Toronto, Ontario taken from Recording No. 4899_4-9_20260327_084420__10_MOLLOYA , which has been certified in Form 1.
April 24, 2026
(Date)
{Electronic signature of authorized person)
9819147153
{ACT’s Identification Number}
Ontario
, Canada
{Province of signing)
*This certification does not apply to the Reasons for Sentence which were judicially edited.