CITATION: R. v. Kwaku Asiamah, 2026 ONSC 4608

NEWMARKET COURT FILE NO.: CR-23-91108219-0000

DELIVERED ORALLY: 20260807 DATE: 20260810

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KWAKU ASIAMAH

Defendant

Camilla Zhang, for the Crown

Susan Pennypacker,

counsel for the Defendant

HEARD: March 23 and July 16, 2026

This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, the official written Ruling is to be relied upon.

REASONS FOR SENTENCE

D. KELLWAY, j.

Background

[1] On September 23, 2023, Kwaku Asiamah was a passenger in the rear seat of a car stopped by PC Ilma Anis, a member of the York Regional Police.

[2] This stop led to a search of the car and its occupants under the Cannabis Control Act, 2017, S.O. 2017, c. 26 Sched. 1 (“CCA”). In the course of the search, a gun was found in a cross-body bag worn by Mr. Asiamah.

Charter application

[3] Mr. Asiamah brought a pre-trial application asserting various infringements of his rights under the Canadian Charter of Rights and Freedoms asking for the gun to be excluded as a remedy for the breach of his rights. He asserted that the stop was unlawful; that the police had no legitimate purpose in stopping the car; that there were no grounds to search the vehicle; that the manner of the search was oppressive; and that it was a lengthy search. He further argued that he was not advised of the reason for his detention nor advised of his right to counsel. Mr. Asiamah asked that the gun be excluded as a remedy for the breach of his rights.

[4] After reviewing the material filed on the application, hearing evidence and argument, Justice Fraser made findings that included the following:

a. P.C. Anis was doing routine patrol and queried the licence plate of the car in which the Mr. Asiamah was a passenger and found that an associated male driver was a suspended driver.

b. The licence plate query took place at 19:38. P.C. Anis followed the vehicle into an industrial/business parking lot, parked beside the vehicle, exited her car and approached the driver, still seated in the vehicle.

c. P.C. Anis testified that she smelled fresh cannabis and noticed evidence of shake. Justice Fraser, hearing the Charter application, accepted this evidence. Justice Fraser also found that the purpose of the stop changed from an HTA stop to a CCA investigation after PC Anis’ initial check of the documentation which revealed that the driver was licensed (delicensed, as she described it, because his licence had expired one day previously). It was then that she formed her grounds, having seen the shake and smelled fresh cannabis.

d. While initially questioning the driver of the vehicle, PC Anis was unaware that Mr. Asiamah was in the rear seat due to the dark tint of the car windows. The officer agreed that at about 19:40 she began to further control the occupants of the vehicle for safety reasons. She turned her vehicle so that she could better see the occupants from her police car. She did not tell the occupants why she was detaining them further.

e. She returned to the vehicle after putting her battery pack on and immediately started asking further questions about cannabis. Justice Fraser agreed with the submission made on behalf of Mr. Asiamah that the officer deliberately started asking more probing questions about cannabis in the car once her microphone was operational. She also did not ask the driver whether the cannabis was sealed, which counsel for Mr. Asiamah argued was done deliberately.

f. PC Anis acknowledged that she believed that rights of the person detained were suspended under the CCA and that she did not tell the occupants of the car that they were being detained for a cannabis search until the second car arrived. Her questioning of the occupants about the cannabis in the car began at 19:41:57. She was then advised by the driver that he had seven grams of cannabis and she returned to her car telling them to “hang tight” and radioed for a second car.

g. While waiting for backup, she moved her vehicle so that she could see the occupants better and advised them of the reasons for so doing. The second police car, with PC Brennan in it, arrived 4.5 minutes after PC Anis called for a second car. After a brief conversation, they approached the car and told the occupants that they and the car were going to be searched under the CCA.

h. PC Anis again did not inform the occupants of their rights to counsel under s. 10(b) and the search proceeded. The driver was searched first by PC Brennan and PC Anis stayed with the detained car speaking with the passenger. Approximately 5.5 minutes after PC Anis called for a second car, and more than 9 minutes after she first approached the car, PC Anis realized that there was a third person in the car, Mr. Asiamah.

i. PC Anis is thereafter heard stating that no one is free to leave, that everyone is detained and that they have the authority to search the vehicle and everyone in it. Speaking with Mr. Asiamah, she told him that she had not seen him and that he would be searched next and he could be on his way.

j. Mr. Asiamah was searched next. He wore a cross-body bag under his jacket. In it, police found a silver handgun, with the grip taped with black electrical tape. On examination, the gun was found to be loaded and there was a round of ammunition in the chamber.

k. The Applicant was not advised of the reason for his detention directly until approximately nine minutes into the detention, but the front seat passengers were informed when PC Brennan arrived.

l. None of the occupants were advised of their right to counsel under s. 10(b) until their arrest. There were challenges in connecting Mr. Asiamah to his preferred counsel but these appeared to have been diligently pursued and Justice Fraser did not find these to form the basis of the Charter challenge.

m. Justice Fraser found that the detention was not arbitrary. She found that that PC Anis had a legitimate purpose for stopping the vehicle under the HTA, namely the information that was returned as a result of her query of the license plate. She therefore found no s. 9 violation. Further, Justice Fraser found that the Crown had met its burden to demonstrate that the warrantless search that took place was reasonable and that there was therefore not a s. 8 violation.

10(a) and 10(b) rights

n. PC Anis was clear in her evidence that she believed that s. 10(b) rights were suspended during a CCA investigation. She said that after the release of the decision of the Court of Appeal for Ontario in R. v McGowan-Morris, 2025 ONCA 349, discussed further below, she now understands that there is no suspension of a s. 10(b) Charter right during a CCA investigation.

o. In contrast, PC Brennan testified that in his view, as soon as the grounds were formed, a person should be advised of the reasons for the detention and their right to counsel. He noted that there are safety concerns about how to make that happen and it will depend on the circumstances. He acknowledged that when he arrived on scene, he did not ask about s. 10 rights and he said, “that is on me”.

p. PC Anis stated that officer safety concerns prevented her from informing the occupants of the car of their rights. She was alone in an isolated parking lot. When she followed the vehicle, she left York Region and entered the City of Toronto, the border between the two being Steeles Avenue. There were two men in the car to her knowledge at the time. She acknowledged that there was nothing of concern in their behaviour.

q. After reviewing the Ontario Court of Appeal decision in R. v McGowan-Morris, supra and the clarity provided by the court on police powers and obligations, particularly with respect to ss. 10(a) and 10(b), Justice Fraser reviewed those obligations in relation to the facts of this case.

r. Justice Fraser found that PC Anis did not inform the occupants of the vehicle why they were detained once she formed her grounds. The court accepted that this occurred about 1.5 minutes into the detention. At that point, the officer was obliged to inform them why they were detained. It was not clear to Justice Fraser whether Mr. Asiamah would have heard the officer’s discussions with the driver and front seat passenger. The court noted that it was many minutes before PC Anis realized that there was someone in the back seat of the car. By that time, PC Anis had already informed the others of the reason for their detention and she immediately informed Mr. Asiamah.

s. The question was whether officer safety was an excuse for not telling the occupants earlier. Justice Fraser found that it was not because PC Anis did not turn her mind to the rights to those detained. In cross-examination, PC Anis was asked about the directions that she gave to the vehicle’s occupants, and she surprisingly failed to appreciate that her actions had the effect of directing and restraining the persons in the car. She explained her actions as protecting herself, which is a legitimate concern, but Justice Fraser found that she should know that concern comes with a corresponding impact of limiting the liberty of the persons in the car.

t. Justice Fraser found that there was a breach of the Applicant’s s. 10(a) right to be informed of the reason for his detention. Justice Fraser also found that once the police had reasonable grounds for a search and Mr. Asiamah was entitled to his full rights under s. 10(b) of the Charter, Mr. Asiamah was not so informed. Therefore, there was a breach of his right under s. 10(b) of the Charter. Justice Fraser found that even if there were a safety concern, it would have abated upon PC Brennan’s arrival.

s. 24(2)

u. Having found breaches of ss. 10(a) and 10(b), Justice Fraser conducted an assessment to determine whether the firearm should be excluded as a remedy under s. 24(2) of the Charter.

v. Justice Fraser made findings regarding the seriousness of the Charter-infringing state conduct which include the following:

(i) Justice Fraser was concerned about the failure of PC Anis to turn her mind to the rights of the persons detained at the scene leading to the s. 10(a) violation. The court accepted that P.C. Anis had safety concerns which were warranted given that she was alone and in an isolated spot, but the court did not find this was the primary reason for the delay.

(ii) The delay in informing the occupants was not long. However, once PC Anis formed the grounds under the CCA, she asked questions that elicited further information from the occupants without informing them of the reason for their detention. On the spectrum of breaches, Justice Fraser put this in the middle.

(iii) On the s. 10(b) breach, Justice Fraser accepted that PC Anis misunderstood the law and that she now understands that s. 10(b) rights are not suspended. She referred, without prompting, to not having the benefit at that time of the Court of Appeal’s decision in McGowan-Morris. She did not understand her obligations and acknowledged that. First, the delay was not great in terms of timing on the breach and the court accepted that there were practical safety concerns, even though they were not the predominant reason why s. 10(b) advice was not provided.

(iv) PC Anis’ evidence was in contrast with PC Brennan who understood his obligation to inform the occupants of their rights. Justice Fraser found that once PC Brennan arrived on scene, any safety issue should have been resolved and the occupants ought to have been informed of the right to counsel under s. 10(b). When Mr. Asiamah was arrested, he was promptly informed of his right to counsel and Justice Fraser found there was no delay in this regard.

(v) On a final balancing in accordance with the test set out in R. v. Grant, 2009 SCC 31, Justice Fraser found that the inclusion of the evidence of the firearm would not bring the administration of justice into disrepute given the nature of the breach, its impact and the nature of the evidence, and declined to exclude the evidence.

Findings of Guilt

[5] On March 23, 2026, Mr. Asiamah re-elected his mode of trial with the consent of the Crown, to proceed before a judge alone. He was arraigned and plead not guilty to both counts on the indictment, possession of a loaded prohibited firearm, to wit a handgun, contrary to s. 95(1) and possession of a prohibited firearm, to wit, a handgun, knowing that he was not the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to s. 92(1). The court was invited to find Mr. Asiamah guilty of both counts based on the findings of fact in Justice Fraser’s ruling on the Charter application, which was made an exhibit on sentence. He was found guilty on both counts, convictions were to be recorded and the matter went over for sentencing.

[6] While it wasn’t formally a guilty plea, and in that sense there has been no expression of remorse, following the result in the Charter application, the court recognizes that he gave up his right to a trial when the court was invited to find him guilty based on Justice Fraser’s findings on that application.

POSITIONS OF THE PARTIES ON SENTENCE

Defence Position

[7] The Defence submits that the appropriate sentence in the circumstances is a conditional sentence of 2 years less a day with the following conditions:

a. Reside at an address approved by your conditional sentence supervisor

b. House arrest for the first year

c. Curfew for the second year

d. Exceptions for employment and for travel to and from employment on public transit

e. Exceptions for medical emergencies for himself or a member of his immediate family

f. Exceptions for scheduled medical or dental appointments

g. Exceptions for counselling and/or treatment for trauma as recommended by the conditional sentence supervisor

h. No weapons

Position of the Crown

[8] The Crown seeks a sentence of three years imprisonment, together with ancillary orders authorizing the taking of a DNA sample pursuant to s. 487.04 of the Criminal Code in respect of a secondary designated offence, and the mandatory 10-year weapons prohibition prescribed by s. 109 of the Criminal Code.

[9] The Crown points to the following aggravating features present in this case:

(a) The loaded firearm contained one round in the chamber of the firearm, in addition to the magazine. This prohibited handgun was one trigger pull away from tragedy and could be produced within a second, putting the police, the occupants of the car and the public in danger. The Crown points to the recognition in the caselaw of the common sense proposition that there is a significantly increased risk of violence inherent in loaded firearms that places the public at extraordinary risk.

(b) The Crown points to these offences involving planning and deliberation as they involved deliberate steps on the part of Mr. Asiamah to obtain and carry the weapon in the manner he was on the day in question. She argues that keeping the firearm loaded exhibits an intention for the firearm to be immediately available for use, for which there is absolutely no justification.

(c) The loaded firearm was hidden in a cross-body bag under the jacket worn by Mr. Asiamah. Thus, the accused was carrying a concealed loaded firearm in public. The Crown analogizes the case before me to R. v. Morris, 2021 ONCA 680, but the court recognizes that Mr. Morris, unlike Mr. Asiamah, had fled from the police and discarded his jacket containing the firearm, both aggravating features that are not present here.

(d) The offence occurs in a public place. Mr. Asiamah, traveling in a moving vehicle with the firearm, was transporting it through the community and thus engaging public safety concerns.

[10] While the Crown acknowledges that there are mitigating circumstances here: Mr. Asiamah’s lack of criminal record, his employment, his bail conditions, his health, and the social context of being a Black Canadian man, the Crown argues that these circumstances do not justify lowering a fit penitentiary sentence to a conditional sentence.

[11] The Crown argues that Mr. Asiamah’s lack of criminal record and his positive rehabilitative prospects are already reflected in the position taken by the Crown and do not by themselves justify a conditional sentence. She further argues that bail, family and employment can’t outweigh the primary concerns of denunciation and deterrence. She argues that although Mr. Asiamah’s health concerns are relevant as a mitigating factor, and custody may be more burdensome for him, there is no evidence before the court that Corrections Canada cannot properly manage his health condition. She points to R. v. Kulatheeswaran, 2026 ONCA 126, in which the Crown appealed from a two year less a day conditional sentence, granted where the accused suffered from a severe neurological illness. Although the appeal was dismissed because the court declined to reincarcerate in the circumstances in which the respondent had already served a substantial portion of his strict conditional sentence, the court found that the sentence had been demonstrably unfit because the trial judge had lost sight of the gravity of the offences and the serious public safety risks associated with loaded-handgun offences. The court found that mitigating factors may temper the length of the sentence but did not justify a community based sentence. Of note however is that in that particular case, the conviction had not only involved the possession of a loaded prohibited firearm with an over-capacity magazine, the respondent was found guilty of careless handling of a firearm, failing to remain at an accident scene and refusing a breath demand. The firearm had discharged after a collision in a residential neighbourhood and the Respondent had fled with the gun and then discarded it in a snowbank.

[12] The Crown also makes reference to the Ontario Court of Appeal’s comments in R. v. Brown, 2010 ONCA 745, in which the court increased a 5.5 year sentence to an 8 year sentence, plus pre-sentence custody, finding that the sentence imposed by the sentencing judge was demonstrably unfit. The Court found that the circumstances of the offence and the offender called out for an exemplary sentence to achieve the sentencing goals of denunciation and deterrence. The court also found that the global sentence in addition to pre-sentence custody was inadequate to meet those objectives, stating at para 14: “First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.” Of note however, is that the respondent in that case had 34 prior convictions and had previously been convicted of possession of a firearm on more than one occasion. Furthermore, the case was decided before mandatory minimum sentences for these offences were struck down (see R. v. Nur, 2013 ONCA 677 and R. v. Nur, 2015 SCC 15.)

[13] The Crown also points to the fact that while Mr. Asiamah conceded the Crown case, this only occurred after an unsuccessful Charter application and should therefore only be provided modest weight.

[14] In total, the Crown argues that in combination, the factors in mitigation do not justify lowering a fit penitentiary sentence to a reformatory sentence. While the Crown acknowledges that Mr. Asiamah has positive rehabilitation prospects, they don’t diminish the need for a penitentiary sentence.

The Offender

Background

[15] Mr. Asiamah is 45 years old. He has no criminal record. His counsel described him as living a life before this offence that stood for the opposite of a criminal lifestyle. He has the support of his immediate and extended family. His mother, sister, cousin and nephew attended for not only the sentencing proceedings, but for other court appearances.

[16] He was born in the large city of Accra, Ghana, into a family filled with love and caring. He had health problems from a young age. His mother and grandmother were his primary caregivers. His biological father had little involvement in Mr. Asiamah’s childhood as he had another family, so in his younger years his mother raised him as a single mom. His stepfather came into his life at age 6. He lived primarily with his grandmother from ages 8-12. At age 12 he came to Canada and now lived with a 2-parent household, while his grandmother remained in Ghana. He faced the challenges of a very different culture and different weather.

[17] Counsel described his move to Toronto, to diverse, not wealthy neighborhoods, with newcomers to the city that resulted in the instability of constant change as people moved out and new newcomers moved in. Crime was described as notorious in the neighbourhood and while initially neighbours were more isolated and kept to themselves, Mr. Asiamah played a role in trying to change that.

[18] The court has reviewed a large selection of letters from family, friends and community members in support of Mr. Asiamah. They all provided powerful testimony to the strong, positive force that Mr. Asiamah is in his extended family and in his community, from the individual support he provides, to the volunteer work in the community, including helping others work through their own trauma as he works through his own.

[19] The authors of supporting letters spoke the highest of praise for this valued member of their family and community, describing him as “a calm, respectful, hardworking, and caring person. From childhood into adulthood, he has always been close to his family and willing to help those around him. He has also shown a genuine interest in helping young people in the community and supporting programs intended to keep at-risk youth away from negative influences and criminal activity.” He was further described as someone who had “never been a person who was ever in trouble with the police or involved in the criminal justice system.” The circumstances that brought him before the court did not reflect, the letters echoed “the person we have known throughout his life, or the way he has generally lived.”

[20] His mother and stepfather added these powerful words about him:

The son we know is not a person who has spent his life in trouble. He is a son, a brother, an uncle, and an important part of our family. He has been helpful to his family and has made positive contributions to those around him. We sincerely believe that the bad judgment that brought him before the Court does not define who he is.

[21] Counsel referenced R. v. D.B, 2025 ONCA 577 in which Chief Justice Tulloch, at para 12, quoting from the Supreme Court of Canada decision in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, underscored that a sentence can have a more significant or heightened impact resulting from collateral consequences. While Mr. Asiamah thankfully doesn’t face immigration consequences as a result of the conviction, counsel pointed to many of the factors including marginalization and financial insecurity that have applied in Mr. Asiamah’s situation.

Employment

[22] Mr. Asiamah has been gainfully employed with Dixon Hall working with unhoused individuals, those with precarious housing, and those in transitional housing. Because of the relationships he has developed in this job, he hopes he can continue, even with the conviction. Counsel acknowledges that the fact of the conviction could place that in jeopardy, but is hopeful that a conditional sentence would mitigate the impact of the conviction. Even when the charges were simply outstanding, they already had a negative impact, in that Mr. Asiamah was not able to apply for a promotion for which he had been encouraged to apply.

Health

[23] Mr. Asiamah has struggled with sickle cell disease for many years. His struggle with this illness began in Ghana and has continued since coming to Canada. He has required repeated and ongoing medical treatment to manage his condition. His family reports that have seen the serious pain and medical difficulties that he has experienced because of this illness.

Family loss

[24] Mr. Asiamah and his entire family have struggled with the tragic loss of Mr. Asiamah’s brother, who was murdered while incarcerated at the Stony Mountain Institution in Manitoba. He was only 27 years old.

General

[25] Because of these personal circumstances, Mr. Asiamah and his family worry not only about Mr. Asiamah’s health, but about his safety. The health concerns are then further compounded by the worry about both, as stress exacerbates his condition.

[26] There is no doubt that Mr. Asiamah is an important part of his family and his community, and an important source of support in the community. He has faced marginalization, but through that has continually strived to make himself and his community better. His continued volunteer efforts with the Multicultural Resource Centre are impressive and demonstrate his commitment to give back to the community and his outstanding leadership. In working with vulnerable people there, he has proven to provide positive leadership.

[27] The testimonials, letters, and photographs of his community work all make it clear, as counsel submits, that Mr. Asiamah is not performing to impress the court. I accept counsel’s submission that this is who he is at the core. He has witnessed family members be victimized by severe violence, from his brother’s death in custody to his cousin, who was the victim of firearm violence.

[28] Personally, he has lived in a tough neighbourhood and has been the victim of generalized violence. His medical records provided evidence of the aftermath of serious injuries that I am advised he suffered when he fell down an escalator while trying to escape violence. Counsel describes that as a result of all of these experiences, he became reactive about violence. While he has no formal diagnosis of PTSD, he has been exposed to violence and criminality repeatedly in both direct and indirect ways and it understandably has had an impact on him.

Wedding

[29] The timing of Mr. Asiamah’s offence is particularly significant with heartbreaking consequences. The date of his arrest, September 23, 2023, was mere days before he was supposed to fly to Ghana to be married. His friends wanted to take him to a dance hall before his departure. Someone offered him a firearm and he took it in the misguided notion that this would keep him safer for the night, and instead it turned his entire life upside-down. Counsel urges the court to consider these circumstances in light of Morris factors, growing up Black in the community in which he did. While the court is not asked to forgive the choices made, counsel argues that it perhaps provides insight for why Mr. Asiamah made the foolish choices that he did.

[30] As a result of Mr. Asiamah’s charges, incarceration and subsequent bail, the wedding could not take place and his fiancée has had to remain in Ghana. Severe and devastating flooding in West Africa, including Ghana, has resulted in the destruction of his fiancée’s home. There was no insurance. He has been struggling to provide financial support to her from Canada. The guilt that flows from the knowledge that his fiancée is now homeless as she remains in Ghana, rather than in Canada where she would be had the wedding taken place as planned, is understandable.

[31] The charges have not only prevented Mr. Asiamah from moving on with his life, but they have caused his fiancée to also have to indefinitely pause her own life. Because they are not married, she has not been allowed to come here to Canada. Because of his charges, he has not been allowed to travel back to Ghana to marry or to physically assist in the aftermath of the flooding.

Pre-trial Custody

[32] Although Mr. Asiamah did not spend a tremendous amount of time in pre-sentence custody, he did spend 33 real days. Based on his sickle cell disease, that time in custody was very significant for him. It is unfortunate that despite preparing and providing a release for the jail for Mr. Asiamah’s medical records, they were not provided to counsel by the date of counsel’s sentencing submissions. However, counsel advised the court of her client’s report of the sickle cell crisis he experienced while in custody and the episodes that can arise as a result of temperature changes, if Mr. Asiamah is cold or experiences stress and anxiety. The combination of the cold temperatures resulting from the air conditioner in operation during his stay, with the extreme stress of missing his scheduled wedding among other stressors related to being in custody, caused a sickle cell crisis which lead to extreme pain, with him being unable to get out of bed and violent trembling. A situation was described in which his cell mate mouthed off to guards in order to get assistance for Mr. Asiamah and was punished for it. Mr. Asiamah admits that he ultimately got medical attention, but that it took a little time. All of this and of course the knowledge of his brother’s fatal experience, along with the normal stressors one would imagine and understand arise from incarceration all understandably inform Mr. Asiamah’s trepidation about going back into custody.

Bail

[33] Counsel described the 503 days during which Mr. Asiamah was on house arrest after being released on bail. As a result of the large number of compliance checks, which were said to have caused some degree of chaos and anxiety, with the police coming day or night, counsel for Mr. Asiamah approached the Crown and the bail was varied on consent to a curfew bail. While counsel and Mr. Asiamah understand that the police were doing what they felt they have to do, Mr Asiamah and his family’s experience of that was nonetheless difficult. Throughout those checks, there were no breaches.

[34] In R. v. Oryia, 2026 ONCA 166, at para 29, Tulloch, C.J.O commented that the Appellant’s “compliance, while on bail pending appeal, confirms his commitment to lawful conduct and demonstrates that a conditional sentence would not endanger public safety” (citing R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at para. 34; Ghadban, at paras. 22-24.)

[35] Counsel argues that reincarcerating Mr Asiamah could undermine his rehabilitation. She also takes issue with the Crown submission that there is no evidence that Corrections can’t handle Mr. Asiamah’s health issues. Counsel argues that it is a myth that jails are able to handle complex medical needs and submits that the truth of the matter is reflected in the Ombudsman Report “Law and Order” filed on the sentencing. Issues surrounding not getting adequate medical care or not getting timely medical care are real issues and that we can’t assume that Corrections are capable of dealing with all medical situations, especially those like Mr. Asiamah’s, brought on by stress and changes and temperature, resulting in pain and which can often lead to hospitalization.

[36] Counsel also pointed to a cascade of collateral consequences that ought to drive home that the particular behaviour resulting in the conviction is not something Mr. Asiamah would even contemplate again. She argues that for Mr. Asiamah, the potential harm arising from actual incarceration is disproportionate. He is part of a family who already lost a child when incarcerated and this has caused a huge amount of fear for him and his family. His brother’s death resulted in a lot of stress and grief, and now there are new fears about the physical safety of Mr. Asiamah, both from physical violence and from the potential consequences of his illness.

Charter Breach and Systemic Anti-Black racism

[37] Given Justice Fraser’s finding of ss. 10(a) and 10(b) breaches, counsel asks the court to consider the Supreme Court of Canada decision in R. v. Nasogaluak, 2010 SCC 6. In the circumstances of this case and the breaches in question, counsel is asking me to take them into consideration, not in terms of thinking of a specific reduction of x days, but as a factor to be taken into consideration in sentencing. Counsel analogizes the requested assessment as placing the issue more into a Morris-like assessment of the offence and the offender and the manner in which we examine the impact of anti-black racism on sentencing.

[38] In the Ontario Court of Appeal case of R. v. Griffith, 2021 ONCA 302, the court considered Nasogaluak in the context of a 1 hour 20 minute delay in the implementation of the accused’s 10(b) rights. The court found that the delay did not justify a reduction of sentence in that case as there was no evidence of additional harm or prejudice caused by the breach that would act as a mitigating circumstance. In the case before me, in the 16 minutes after the accused was detained, the firearm had already been discovered, it was otherwise discoverable, and I understand that there was no suggestion that the search motivated by racial profiling.

[39] Counsel argues that the court can’t unravel Mr. Asiamah’s life experience from his identity as a Black man, the rough neighbourhood he grew up in, his own and his family’s experience as victims of violence. All of this has left him fearful and reactive. His work keeps him immersed in a life of struggle, but he continues to strive to make things better for himself and his community.

[40] Morris reports draw connections between and explain marginalization. While I don’t have an official report in this sentencing, I have been directed by counsel in submissions and the caselaw to factors impacting that marginalization, including poverty and a strong and aggressive police presence that contribute to and lead to the conclusion that one’s life experiences have been strongly impacted by systemic racism and unfairness. Counsel argues that social context is important in reaching a fit sentence here.

[41] Counsel urges that I consider this social context and recognize the weight to be given to rehabilitation. She urges the court to take the whole of Mr. Asiamah into account. If I do that, she argues, there is no other conclusion than that a conditional sentence is appropriate in the circumstances of this case.

Analysis and the Law

General Sentencing Principles

[42] In determining the appropriative sentence in any case, I must look to the sentencing objectives in s. 718 of the Criminal Code, which instruct me as the sentencing judge:

s. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[43] The Ontario Court of Appeal, in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, commented on these objectives at para. 58:

Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.

[44] Section 718.1 of the Code provides that any sentence that is ultimately imposed "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30. The Supreme Court in R. v. Nur, supra, at para 42, in reconciling these different goals, finds that this articulation in 718.1 is the fundamental principle of sentencing.

[45] I must also look to any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[46] Due to the prevalence and significant danger associated with loaded handguns, denunciation, deterrence, and protection of the public are the predominant sentencing objectives for s. 95 offences. "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...should continue to receive exemplary sentences that will emphasize deterrence and denunciation": Nur, supra, at para. 206.

Sentence range

[47] In R. v. Owusu, 2024 ONSC 671, at para 29, Justice Code adopted his earlier analysis of the leading Ontario authorities on the appropriate range of sentences for s. 95 offences in R. v. Graham, 2018 ONSC 6817, at paras. 36-42, a decision that was upheld on appeal:

• In relation to the s.95 firearms offence, it is settled law that denunciation, deterrence and protection of the public are the predominant sentencing objectives because of the prevalence and the great danger posed by loaded handguns in this city (or handguns with readily accessible ammunition). See R. v. Danvers (2005), 2005 CanLII 30044 (ON CA), 199 C.C.C. (3d) 490 (Ont. C.A.); R. v. Nur (2013), 2013 ONCA 677, 303 C.C.C. (3d) 474 (Ont. C.A.) at para 206, aff'd (2015), 2015 SCC 15, 322 C.C.C. (3d) 149 (S.C.C.) at para 120; R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 (Ont. C.A.) at paras 26-32. In addition, there is a strong need for specific deterrence in this case, given Graham's persistent recidivism.

• There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to the appropriate range of sentence in these s.95 cases. In R. v. Carrol, 2014 ONSC 2063 (Ont. S.J.C.), Molloy J. analyzed the effect of Nur and Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalled that Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitative prospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held in R. v. Carrol, supra that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s.95 case involving well situated first offenders.

• More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the use and possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall (2015), 2015 ONCA 692, 340 O.A.C. 201 (Ont. C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, the court upheld a three and a half-year sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whom where young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Both accused were involved in the drug trade and were carrying the guns in association with drug crime. Also see: R. v. Mansingh, 2017 ONCA 68 (Ont. C.A.); R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257 (Ont. S.C.J.), aff'd (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.).

[48] Firearms offences require sentences that emphasize denunciation and deterrence: Morris, at paras. 68, 71; R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff'd 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Smickle, 2014 ONCA 49, 317 O.A.C. 196, at para. 19. The inherent dangerousness of firearms, and the extreme risk they pose to public safety, make denunciation and deterrence of paramount importance. Given the emphasis on sentences that prioritize denunciation and deterrence, proportionate sentences will typically require imprisonment for firearms offences: Morris, supra, at para. 70.

[49] In the case of R. v. Assefa, [2025] O.J. No 2783, Mr. Assefa was found guilty of one count of possession of a loaded restricted firearm for which he did not have a licence and registration certification, contrary to s. 95. He came to the attention of the police during a drug trafficking investigation in which he was recorded on surveillance cameras at one of two targeted areas on which police executed a search warrant. On the day the warrant was executed the accused was arrested for trafficking and possession for the purpose of trafficking. Police conducted a traffic stop and placed him under arrest. During a pat down search at the roadside the police discovered a loaded Glock tucked in the waistband of the accused’s pants with the serial number defaced. The defence did not contest the evidence and the accused was convicted. The Crown and the defence agreed that given this offence and this offender, the appropriate range of sentence would be less than two years imprisonment. Both agreed that the accused was not a danger to the public and that he should serve his sentence in the community. It was not a joint submission because the parties didn’t agree on the length of the conditional sentence to be imposed. In agreeing that a conditional sentence was appropriate in the circumstances of the case, the court said the following at paras 17 and 19:

17. The range of sentence for a first firearm possession offence is often stated as three to five years. That range reflects the gravity of the offence and the absolute scourge of firearms on our society. To be crystal clear, it would not be inappropriate or unusual to impose a sentence of three years incarceration in a federal penitentiary for Mr. Assefa's possession of a loaded firearm, with serial numbers defaced, in a public place. That said, there is also an established range of sentences as low as upper reformatory, including conditional sentences, for youthful first offenders, where other criminality such as drug dealing or making threats using the firearm is not proven. It also includes a higher range above three years which typically is applied where there is evidence that a firearm was possessed in connection with some other criminality, such as drug trafficking: R. v. Marshall, 2015 ONCA 692, at paras. 47-48; R. v. Graham, 2018 ONSC 6817, at para. 38; R. v. Beharry, 2022 ONSC 4370, at para. 31.

19 In Morris, the Court of Appeal held that a three-year sentence will be appropriate for the vast majority of s. 95 possession offences. However, the court also held that sentences at or just below the two-year mark may be appropriate for some s. 95 offences: Morris, at paras. 71 and 131. See also: R. v. Smickle, 2013 ONCA 678, at para. 30 (additional reasons at 2014 ONCA 49); R. v. Desmond-Robinson, 2022 ONCA 369. The Court of Appeal has also recognized that in some cases, particularly those involving young adults with no criminal record and good prospects for rehabilitation, a conditional sentence of imprisonment may be an appropriate sentence even for serious firearm possession offences: Morris, at paras. 124-28, 180-81; Desmond-Robinson. Finally, the court in Morris provided specific direction that, in appropriate cases, a court must give consideration to conditional sentences of imprisonment as a sentencing option for young Black men convicted of handgun possession: paras. 131 and180.

[50] In R. v. Alexander, [2025] O.J. No 571, Justice Bale sentenced Mr. Alexander following the accused’s conviction by a jury of possession of a loaded prohibited or restricted firearm, unauthorized possession of firearm in a vehicle and flight from peace officer, in circumstances in which the firearm was found disposed of under a bush not far from where the accused ultimately surrendered and the serial number was obliterated. He was 18 years of age. While the Crown sought global sentence of four years, defence sought a conditional sentence. The court conducted a review of recent caselaw in support of the defence position to impose a conditional sentence, including Morris, (supra) Beharry (surpra) R. v. Stewart, 2022 ONSC 6997, 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.

[51] 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.

[52] 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.

[53] In both Stewart and Marier, the offenders received conditional sentences.

After noting various similarities and differences in the other cases in which conditional sentences had been imposed to the case before him, Justice Bale importantly found that he was satisfied that Mr. Alexander's prospects for rehabilitation are very good. During his time under house arrest, he remained out of trouble, took on many responsibilities around the home and furthered his education. He had, in the past, shown himself to be an asset to the community. He was 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 was a first-time offender. He has been on bail since November 2022 and has abided by his bail conditions. He had 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, the court found that a conditional sentence, followed by a term of probation is appropriate in that case, (see Alexander, supra paras. 42-50).

[54] The Ontario Court of Appeal in R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51 (aff'd 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82), acknowledged that s. 95 offences apply to a wide range of conduct. Justice Doherty noted that:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a licence and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that licence. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence.

[55] Mr. Asiamah’s possession of the firearm on the night in question was not akin to a regulatory offence. Nor is he at the other end of the spectrum, an "outlaw" who carried the firearm "as a tool of his criminal trade." His behaviour could fairly be classified as falling between the two extremes: R. v. Kongolo, 2022 ONSC 3891, at para. 69; R. v. Marsan, 2020 ONCJ 638, 69 C.R. (7th) 431, at para. 27.

Responsibility of the Offender

Motive

[56] As the Crown rightly pointed out, the decision to carry a loaded gun was a deliberate one. Mr. Asiamah made a choice to possess a loaded firearm. Carrying a loaded firearm when out in public leads to the common sense inference that he at least contemplated using that firearm. The threat of this conduct to the public safety is a real and is significant.

[57] Counsel for Mr. Asiamah made submissions on his history and the reasons why he ended up with the firearm on the night in question.

[58] R. v. Beharry, supra, was a similar case to the one before me. In accepting the accused’s explanation, Justice Shreck’s comments (at paras 22-24) about the motivation for carrying the firearm are applicable in the case before me:

22… Mr. Beharry is not alone in the belief that arming oneself with a firearm is a reasonable way to ensure one's own safety. It is a belief that includes among its proponents members of the United States Supreme Court, who recently affirmed that the Second Amendment to that country's Constitution protects every citizen's right to protect him or herself by carrying a handgun in public: New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S. __ (2022).

23 But Canada is not the United States. Not only is there no constitutional right to possess a handgun, but Parliament has determined that doing so constitutes a serious criminal offence and our courts have long held that it is an offence deserving of significant punishment. As a result, Mr. Beharry's motive for possessing the firearm has only a limited mitigating effect for the reasons explained in Morris, at para. 101:

It must be stressed, however, that Mr. Morris's genuine fear, regardless of its cause, is only a limited mitigating factor. He still chose to arm himself in public with a concealed, loaded, deadly weapon. As indicated above, Mr. Morris's reasons for choosing to arm himself do not detract from the seriousness of the crime he committed. Even if his conduct is made somewhat less blameworthy by the explanation offered for possessing the loaded handgun, Mr. Morris's conduct still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk.

See also R. v. Boussoulas, 2014 ONSC 1536, at para. 20, aff'd 2018 ONCA 222, 407 C.R.R. (2d) 44.

24 That said, while Mr. Beharry's motive has only a limited mitigating effect, it nonetheless distinguishes this case from those where offenders possessed firearms to further some criminal purpose (often drug trafficking)which is a significant aggravating factor.

[59] Mr. Asiamah has been convicted of a serious offence. He provided a reason, but not a justification. In reality, there is no good reason to illegally possess a loaded handgun in a public place. It is a recipe for disaster and it is lucky that no one, no member of the public, the individuals in the car with him, the police who stopped him, or himself were hurt. The gun itself is a significant and immediate risk to the public. As the Court put it in Morris, supra at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder. When the person with the gun is confronted by the police, who are engaged in the lawful execution of their duties, the risk increases dramatically. 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 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at pp. 214-15.

Systemic Factors

[60] In contemplating the degree of responsibility of the offender, I must also consider his moral blameworthiness in the context of his background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91. The Ontario Court of Appeal in Morris affirmed that systemic and background factors are relevant to an offender's degree of responsibility if they provide an explanation for the commission of the offence that mitigates the offender's personal responsibility: Morris, at paras. 91-100. In that case, systemic anti-Black racism was described in a report filed, entitled "Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario." Despite the fact that neither this report not anything similar was filed in this case, the Court in Morris observed at para. 42 that much of its contents are properly the subject of judicial notice. The Court stated it "bears reading and re-reading by those called upon to prosecute, defend, and sentence Black offenders, particularly young Black offenders": Morris, at para. 43.

[61] These background factors don’t excuse Mr. Asiamah’s criminal conduct in committing the offence before me. However, examining his choices in the context of his specific background and the broader social context is instructive. While he still bears responsibility for his actions, his background leads to the conclusion that his degree of responsibility is mitigated by the systemic and background factors.

Locating the Sentence Within the Range

Aggravating and Mitigating Factors

[62] In order to locating this case within the appropriate sentencing range, I must consider the aggravating and mitigating factors present in this case. The primary aggravating factor before me is that Mr. Asiamah chose to possess a handgun in public while in a motor vehicle. The risk a handgun poses to public safety obviously increases once that handgun is removed from an individual's home and taken into the community where the person carrying it might interact with other people. The mitigating factors include that Mr. Asiamah , while not a young man, still comes before this court as a first offender. He has lived a productive life, gainfully employed and regularly contributing to his community through volunteer work as demonstrated in the material placed before me on this sentencing. Not only does he have the support of his family and his community, it is clear from the letters written in support of Mr. Asiamah, that he has been a source of support and guidance for his extended family and community as well. I have outlined the extensive list of mitigating factors in greater detail above.

"Downes" Credit

[63] Mr. Asiamah was released on bail on October 25, 2023, after spending 33 days in custody. He was initially subject to a strict house arrest bail from October 25, 2023, to March 10, 2025, that was subsequently replaced with a curfew. He was on the house arrest bail for a total of 503 days.

[64] Time spent subject to restrictive bail conditions should be taken into account: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33. This is a mitigating factor which must be considered in arriving at a fit sentence: R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Courts are not required to quantify a specific amount of credit, and doing so risks skewing the calculation of the ultimate sentence: R. v. Marshall, 2021 ONCA 344, at para. 53. When courts do quantify the credit, it is often between a quarter and a third of the total time spent on bail: R. v. Long, 2021 ONSC 4747, at para. 39; R. v. Navarathinam, 2021 ONSC 4241, at paras. 47-51; R. v. Campbell, 2021 ONSC 4193, at paras. 15-20; R. v. Inshanally, 2021 ONSC 3432, at paras. 35-37.

[65] In this case, I have considered the time Mr. Asiamah spent subject to restrictive bail conditions, although I do not intend to assign a specific amount to it. I do note that I have not been directed to any breaches in his bail conditions. Rather, I understand that it was because of his strict compliance with the bail conditions, and the impact that compliance checks had on Mr. Asiamah and his family, that the strictness of the house arrest bail was relaxed to a curfew bail. I do take this time spent on the restrictive bail into account as a mitigating factor.

The Appropriate Sentence

[66] Having balanced the various aggravating and mitigating factors described earlier, I conclude the appropriate sentence in this case is imprisonment in the range of two years. In Morris, at para. 180, the Court stated:

When the appropriate sentencing range includes sentences at or below the two-year mark, a sentencing judge must give careful consideration to the imposition of a conditional sentence. As outlined earlier, conditional sentences, properly used, can ameliorate the longstanding problem of the over-incarceration of young Black men.

[67] Thus, I will now consider the appropriateness of a conditional sentence in this case.

Is a Conditional Sentence Appropriate?

(i) Safety of the Community

[68] Section 742.1(a) of the Criminal Code sets out two prerequisites for a conditional sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that it would not in this case. Mr. Asiamah has no prior criminal record. He has been on bail since 2023 and has abided by all of the conditions of his recognizance.

(ii) Fundamental Purpose and Principles of Sentencing

[69] The second prerequisite in s. 742.1(a) is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2." As discussed earlier, the fundamental purpose of sentencing as described in s. 718 is "to protect society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society" through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation, and "[t]hose objectives will not necessarily point toward the same sentencing disposition": Morris, at para. 58.

(iii)Sentencing Objectives in This Case

[70] In this case, as referenced in the caselaw above, the nature of the offence makes the objectives of general deterrence and denunciation paramount. However, rehabilitation is also important in this case.

[71] In Morris, at para. 102, the Court noted that "social context evidence can provide valuable insight, both with respect to the need to deter the offender from future conduct, and the rehabilitative prospects of the offender." In this case, several factors are present that lead me to conclude that Mr. Asiamah has substantial rehabilitative potential. He has no prior criminal record. He has abided by his restrictive bail conditions for over almost three years. He has been gainfully employed. His extended family and community are supportive of him and describe his character in positive terms.

[72] Mr. Asiamah’s rehabilitation is not only in his interest, but in the interest of the community at large and society as a whole. As a sentencing objective, it is still important, even in a case of a serious firearms offence like the one before me, where the objectives of denunciation and deterrence are paramount.

[73] In the case of R. v. Bissonnette, 2022 SCC 23, at para. 48, the court, per Wagner C.J.C., stated:

[T]he objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law-abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation "is probably the most economical in the long run and the most humanitarian objective of punishment" (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at para 1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that "[r] ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world" (para. 4).

[74] Addressing the fundamental importance of rehabilitation in the fundamental purpose of the protection of society, in R. v. Beharry, 2022 ONSC 4370, [2022] O.J. No 3409, at para 43, Justice Schreck stated:

All of the sentencing objectives, including denunciation, deterrence and rehabilitation, are subordinate to the fundamental purpose of sentencing as set out in s. 718 of the Code, which is "to protect society." Arguably, the objective of rehabilitation, where rehabilitative prospects exist, will go further towards achieving the fundamental purpose of sentencing than sentences designed to give effect to the objective of general deterrence, which empirical evidence suggests has uncertain effect: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 113-114; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 107; R. v. Biancofiore (1999), 1997 CanLII 3420 (ON CA), 119 C.C.C. (3d) 344 (Ont. C.A.), at para. 23; R. v. McGill, 2016 ONCJ 138, at para. 104; R. v. Reis, 2012 ONCJ 373, at para. 26.

[75] Taking into account all of the above, I have concluded that the information provided to me in the sentencing material and submissions, provides a basis upon which to give "added weight to the objective of rehabilitation and less weight to the objective of specific deterrence": Morris, at para. 81.

(iv)Balancing Competing Objectives

[76] While sentencing Mr. Asiamah to a term of actual incarceration rather than a conditional sentence would give effect to the objectives of general deterrence and denunciation, in Mr. Asiamah’s personal circumstances, sentencing him back into a custodial facility would do little to contribute to Mr. Asiamah’s rehabilitation. On the basis of his current health situation, which is exacerbated by both stress and by the fluctuations in temperature and the inability to control such temperature, his own experience in pre-trial detention in this case, and his painful knowledge of his brother’s tragic death while in custody, all of these factors serve to exacerbate the stress that is present for the majority if not all of those serving custodial sentences. In light of all of those factors, a return to a custodial institution to serve his sentence at present is more likely to hinder his rehabilitation. A conditional sentence, on the other hand, would be beneficial to Mr. Asiamah's rehabilitation.

[77] I must, however, consider whether a conditional sentence is sufficient to give the proper effect to the objectives of deterrence and denunciation.

[78] The Supreme Court of Canada considered the relationship between conditional sentences and the objective of denunciation in R. v. Proulx, 2000 SCC 5, at para. 102:

Incarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.

[79] The Court went on to discuss the objective of deterrence (at para. 107):

Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer [(1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.)], at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, [Report of the Canadian Sentencing Commission (Ottawa: The Commission, 1987)], at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

[80] Therefore, in light of the comments from the Supreme Court, provided that sufficiently onerous and punitive conditions are imposed, and/or the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances, and the public is made aware of the severity of the sentence, a conditional sentence could be appropriate in Mr. Asiamah’s case.

[81] Finally, the Ontario Court of Appeal, in R. v. Desmond-Robinson, 2022 ONCA 369, at para. 13, has made it clear that conditional sentences can be appropriate in firearm possession cases as follows:

We understand the trial judge to be saying that, even where the appropriate sentence is under two years imprisonment, making the conditional sentencing provisions potentially applicable, this court has held that the seriousness of gun offences precludes resort to a conditional sentence. With respect, this court has not made that pronouncement. In fact, in R. v. Morris, 2021 ONCA 680 (released after the trial judge's reasons for sentence), this court recognized that conditional sentences may well be appropriate in cases like this one: Morris, at paras. 124-28, 180-81.

Result

[82] 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, [2000] 1 S.C.R. 455 at para 44). In exercising my discretion in imposing such a just and fit sentence in the case before me, I am required to consider the individual circumstances of Mr. Asiamah, the circumstances of the offence before me, and the need for the sentence to properly address the sentencing objectives outlined by Parliament.

[83] I have considered the principles of sentencing set in the Criminal Code and I have taken into account the specific circumstances of the offence, including the Charter breaches found by Justice Fraser to have occurred, and the specific circumstances of the offender. In considering those circumstances, I have reviewed the relevant mitigating and aggravating factors.

[84] In summary, I have considered the following:

(1) Mr. Asiamah is 46 years old. He was 43 at the time of the offence and had no criminal record. He is not a youthful first offender but he is a first offender nonetheless. While he can’t rely on youth as a mitigating factor, he has made it to his mid-40s not only with no criminal record, but by all accounts a pillar of his immediate community of family and friends and his broader community with the employment and volunteer work in which he takes part.

(2) Employment

(3) Volunteer work in the community

(4) Conditions in pre-sentence custody

(5) Restrictive bail conditions

(6) Letters of support

(7) His support for family back in his native home in Ghana

(8) Health conditions

(9) Although not a plea of guilt and a show of remorse, following the Charter ruling he did not require the Crown to be put to the strict proof of the charges

(10) Charter breaches of ss 10(a) and 10(b)

(11) Social context information

(12) Circumstances of offence- that he was in possession of a loaded restricted firearm in a public place

[85] The caselaw regarding the appropriate sentence for the gun charges Mr. Asiamah faces emphasizes that general deterrence and denunciation are of paramount concern. The jurisprudence also recognizes that each case must be considered in light of its circumstances, aggravating and mitigating factors and that all the purposes of sentencing must be considered including rehabilitation. The aggravating factors include the danger and gravity of the offences inherent in the possession of a loaded firearm. Mr. Asiamah knows through personal experience how tragic the result of gun violence can be.

DISPOSITION

Kienapple

[86] Mr. Asiamah’s convictions for possession of a loaded prohibited firearm, to wit a handgun, contrary to s. 95(1) and possession of a prohibited firearm, to wit, a handgun, knowing that he was not the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to s. 92(1) arise from the same facts. There is some debate in the decisions of this court whether the rule against multiple convictions, as explained in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, applies to convictions under s. 92(1) and s. 95(1) that arise from the same factual circumstances. Those decisions were canvassed by Presser J., in R. v. Hussey-Rodrigues, 2024 ONSC 2671, at paras. 67-76 and by Schreck, J. in R. v. Charley, 2025 ONSC 2490, at para 44. Like them, I adopt the reasoning of Nordheimer J. (as he then was) in R. v. Lucas, [2010] O.J. No. 3300 (S.C.J.), at paras. 9-13 and conclude that the rule does apply. I also not only find the reasoning in Lucas persuasive, it is also regarded to be the earliest judgment of this court on this issue and therefore binding on me by virtue of the doctrine of horizonal stare decisis: R. v. Sullivan, 2022 SCC 19, 472 D.L.R. (4th) 521, at paras. 73-75. Both Crown and Defence are in agreement that one count should be stayed pursuant to Kienapple. Count 2 is therefore conditionally stayed.

Pre-trial custodY/appropriateness of conditional sentence

[87] Mindful of the Supreme Court of Canada decision in R. v. Fice, 2005 SCC 32, [2005] 1 SCR 742, any time that Mr. Asiamah spent in pre-sentence custody is part of the total punishment imposed; it is not a mitigating factor that can affect the range of sentence and therefore the availability of a conditional sentence.

[88] In my view, given Mr. Asiamah’s lack of prior criminal record, other listed mitigating factors, his rehabilitative potential, his health, the personal and systemic factors at play in this case, and the fact that the firearm possession was not related to other criminal activity, I find that a conditional sentence is appropriate in this case.

Sentence

[89] Based on the foregoing, on Count 1, Mr. Asiamah is sentenced to a term of imprisonment of two years less one day. This period is to be reduced by the time he spent in pre-trial custody as follows: 33 days pre-sentence custody to be credited as 50 days, pursuant to s. 719(3.1) and R. v. Summers. The remainder of the 2 years less a day custodial sentence is 679 days and is to be served in the community pursuant to a conditional sentence order on the following conditions in addition to the required statutory conditions:

-For the first 18 months of the sentence, to remain within 10 metres of his place of residence at all times, subject to the following exceptions:

• For the purposes of going directly to, from and while at his place of employment (the place of employment and his work schedule is to be provided in advance each week to his Conditional Sentence Supervisor);

• Going directly to, from and while at any educational institution at which he is registered. (a copy of any registration and educational institution schedule is to be provided in advance to his Conditional Sentence Supervisor);

• To go directly to from and while attending any prior scheduled appointments for himself with a registered health professional (the dates and times of such appointments are to be provided in advance to his Conditional Sentence Supervisor);

• To comply with any terms of this order or direction of his Conditional Sentence Supervisor;

• For medical emergencies involving himself or members of his immediate family;

• To go directly to, from and while attending religious services

• Once per week, on Saturdays, for a period of 4 hours from noon to 4:00pm to attend to the necessities of life (i.e. food shopping).

• Or with the express written permission of his Conditional Sentence Supervisor

-For the remainder of the conditional sentence, to be subject to a curfew between 10:00 p.m. and 6:00 a.m. each day, subject to the same exceptions;

-For the entirety of the Conditional Sentence the following conditions also apply:

• Not to possess any firearms or weapons as defined by the Criminal Code;

• Attend such counselling as directed by his Supervisor and sign any releases as are necessary to monitor compliance with this condition. (I hope that you can view this aspect of the sentence in a positive manner. I understand that you were assigned a psychologist at the time of your brother’s death and that you had been exempted from your exams at that horrible time and that on the basis of the direct and indirect violence you have experienced, you may benefit from counselling as a result.)

• Perform 120 hours of community service within the first 18 months of the conditional sentence.

• At the conclusion of the conditional sentence, Mr. Asiamah will be placed on probation for a period of 2 years on the following conditions in addition to the statutory conditions:

• Report forthwith to a probation officer and thereafter as directed;

• Not to possess any firearms or weapons as defined by the Criminal Code:

• Attend such counselling as directed by his probation officer and sign any releases as are necessary to monitor compliance with this condition.

[90] For both the conditional sentence and the probationary period of the sentence, I must caution Mr. Asiamah that breaching any of the conditions can result in you being brought back before the court. A breach could result in the conditional sentence order being suspended and you being ordered to serve the remainder of that portion of the sentence in jail. A breach could also result in new criminal charges, for example breach of probation.

Ancillary Orders

I also impose the following ancillary orders:

1. An order to provide a DNA sample for inclusion in the national databank, pursuant to s. 487.051(3) of the Criminal Code, as this is a secondary designated offence;

2. A weapons prohibition order as follows: pursuant to s. 109(2) of the Criminal Code, Mr. Asiamah is prohibited from possessing firearms and other items described in s. 109(2)(a) for a period of 10 years and the items described in s. 109(2)(b) for life.

3. An order of forfeiture of the firearm, and any magazine, and ammunition seized, pursuant to s. 491(1) of the Criminal Code; and

4. Victim fine surcharge in the amount of $200, with 90 days to pay.

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Justice D. Kellway

Released: August 10, 2026