Superior Court of Justice

Court File No.: CR 25-20000003-0000

Date: February 17, 2026

Ontario

Superior Court of Justice

Between:

His Majesty the King – and – Brandon Caleb, Defendant

Counsel: Susan Adams, for the Crown Michael Leitold, for the Defendant

Heard: November 12, 2025 and February 17, 2026

M. Sharma, J.

Reasons for Sentence

[ 1 ] On June 4, 2025, after a judge alone trial, I found the defendant, Mr. Brandon Caleb, guilty of the following offences:

a. Trafficking in a controlled substance contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("Count 1").

b. Possession of a loaded prohibited or restricted firearm, while he was not the holder of an authorization or licence under which he may possess it, contrary to s. 95(1) of the Criminal Code, R.S.C., 1985, c. C-4 ("Count 2").

c. Possession of a firearm while he was prohibited from doing so by order pursuant to s. 109 of the Criminal Code, made by a Justice of the Ontario Court of Justice in Toronto on October 24, 2013, contrary to section 117.01(1) of the Criminal Code ("Count 3").

[ 2 ] On Count 1, I found the controlled substance was cocaine in some transactions and was unable to discern what the controlled substance was in other transactions. I was not able to find beyond a reasonable doubt that Mr. Caleb was trafficking in fentanyl, as alleged by the Crown. Cocaine is a Schedule I controlled substance. Pursuant to s. 5(3)(a) of the Controlled Drugs and Substances Act ("CDSA"), a person who traffics in Schedule I controlled substance is guilty of an indictable offence and liable to imprisonment for life.

[ 3 ] On Count 2 and pursuant to s. 95(2)(a) of the Criminal Code ("Code"), a person who possesses a loaded handgun is guilty of an indictable offence and liable to imprisonment for a term of not more than ten years.[^1]

[ 4 ] On Count 3 and pursuant to s. 117.01(3)(a) of the Code, a person who possesses a firearm when prohibited from doing so by any Order, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

[ 5 ] The Crown stayed a fourth count (possessing a firearm when prohibited from doing so by a different order made on October 7, 2008).

A. Facts and Circumstances of the Offences

[ 6 ] Mr. Caleb was named in a judicially authorized order to intercept his cell phone communications and Land Based Services tracking data ("LBS") as part of a project investigation by the Toronto Police Services ("TPS"). Based on intercepted calls and LBS data, search warrants for a residence and a vehicle associated with Mr. Caleb were issued.

[ 7 ] On May 19, 2022, the search warrants were executed From the search, the following physical evidence related to the drug charges was seized: (a) a 500 ml Pyrex measuring cup with white powdery residue in it, along with a metal fork and spoon; (b) two black digital scales, one was located in the bedroom closet in which the firearm was found, and the second was located in a cabinet in the garage; (c) two phones—a white Samsung Galaxy phone and a Red iPhone XR—both located on the living room floor where Mr. Caleb was found sleeping on a mattress with his infant child.

[ 8 ] OPP officers also found a loaded firearm in the pocket of men's jeans in a dresser shelf in a bedroom closet. It was not disputed that Ms. Julia Nerb, with whom Mr. Caleb has a child, resided at this residence. Mr. Caleb's position was that he did not reside at this residence.

[ 9 ] On May 19, 2022, Mr. Caleb was arrested and charged with various offences.

[ 10 ] Mr. Caleb was discharged of some counts at a preliminary inquiry, notably trafficking in cocaine and fentanyl. He was not discharged on the general count of trafficking in a controlled substance.

[ 11 ] Defence pre-trial applications were heard in a blended voir dire at the start of trial. In oral rulings given with written reasons that followed:

a. I declined to quash the search warrants;

b. I found there was no breach of Mr. Caleb's s. 8 or s. 9 Charter rights due to the search warrants being improperly authorized, nor a breach of his 10(a) Charter right to be promptly informed of the reason for his arrest or detention: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11;

c. I found there was a breach of Mr. Caleb's s. 8 Charter right because of the delay by the TPS in filing the Report to Justice following the execution of the search warrant related to the residence;

d. I found there was a breach of Mr. Caleb's s. 10(b) Charter right to counsel because this right was not implemented immediately at the first reasonable opportunity; and

e. Notwithstanding the Charter breaches, I declined to exclude evidence under s. 24(2) of the Charter.

[ 12 ] I granted a Crown pre-trial application to admit the evidence of Det. Richard Duffus as an expert in drug trafficking in the GTA.

[ 13 ] The Crown's evidence on all three counts was exclusively circumstantial. Mr. Caleb did not testify, nor did he call any evidence.

a. Trafficking in a Controlled Substance

[ 14 ] Having considered the Agreed Statement of Fact and all the Crown's evidence, I was satisfied beyond a reasonable doubt that Mr. Caleb trafficked in a controlled substance, and that he specifically trafficked cocaine on April 7 and April 22, 2022. I was not satisfied beyond a reasonable doubt from any of his calls that he trafficked in fentanyl.

[ 15 ] From intercepted calls on March 18 and 21, 2022, I was satisfied that Mr. Caleb sought and collected from Mr. Jahmel Burke four 1/8ths of an ounce of a substance, and that he sold, gave, transported, or delivered two of them to an individual referred to as "tow truck guy". I was satisfied that the substance was a controlled substance, but I was not able to determine the exact nature of the substance.

[ 16 ] From intercepted calls and LBS data on March 30, 2022, I was satisfied that Mr. Caleb sought and collected from Mr. Jahvon Burke a "20 bag". I was satisfied that the substance was a controlled substance, but I was not able to determine the exact nature of the substance. The expert evidence led suggested it could be either crack cocaine or fentanyl, based on the pricing of $20.

[ 17 ] From intercepted calls and LBS data on April 5, 2022, I was satisfied that Mr. Caleb transported four and a half ounces of a controlled substance to a location referred to as "BA" for the purpose of cutting the substance, with an intention to sell or offer for sale the substance to a woman for $8,000. However, I was not able to determine whether it was cocaine or fentanyl. The expert evidence suggested it could be either cocaine or fentanyl, based on the pricing discussed in this call.

[ 18 ] From intercepted calls and LBS data on April 7, 2022, I was satisfied that Mr. Caleb arranged to pick up from Mr. Jahmel Burke an 1/8th of an ounce of powdered cocaine, which he then transported elsewhere.

[ 19 ] From intercepted calls and LBS data on April 22, 2022, I was satisfied that Mr. Caleb collected an 1/8th of an ounce of powdered cocaine from Mr. Jahmel Burke and transported it elsewhere.

[ 20 ] There was insufficient evidence to identify the specific substances in Mr. Caleb's calls on March 18, 21, 30, 2022, and on April 5, 2022. However, having considered all the evidence, I was satisfied beyond a reasonable doubt that the substances in these calls were controlled substances – either cocaine, crack cocaine, or fentanyl.

[ 21 ] I rejected the possibility that any of the above substances could be cannabis. I found that the subject of different calls Mr. Caleb had with an unknown caller on March 22 and March 28, 2022, was cannabis. Regarding Mr. Caleb's call on April 5, 2022, about cutting a four-and-a-half-ounce substance, I noted that cannabis cannot be cut like powdered substances, unlike cocaine or fentanyl.

[ 22 ] From these and other intercepted calls, I was satisfied that Mr. Caleb had an intention to traffic controlled substances outside of the GTA. Specifically, I was satisfied that of the four-and-a-half ounces of a substance that he cut, he intended to sell four and half ounces to a woman for $8,000 and the remainder he would sell outside of the GTA.

b. Firearm Counts

[ 23 ] OPP officers found a handgun loaded with seven cartridges of 9mm ammunition in a pair of men's jeans in a dresser drawer, in a bedroom closet at the residence.

[ 24 ] For reasons given in my Judgment, I was satisfied beyond a reasonable doubt that Mr. Caleb resided at the residence, and that he had knowledge and control of the firearm (i.e. constructive possession of it).

[ 25 ] Mr. Caleb conceded that if he was found guilty of possession of a firearm contrary to s. 95(1) of the Code, he would be guilty of Count 3. Mr. Caleb was subject to an Order made by a Justice of the Ontario Court of Justice on October 24, 2013, under s. 109 of the Code.

B. Facts Relating to Mr. Caleb

[ 26 ] Mr. Caleb did not testify. Information about him comes from a Pre-Sentence Report that I received in June 2025, an Impact of Race and Culture Assessment ("IRCA") Report, dated October 3, 2025, and Mr. Caleb's criminal record.

[ 27 ] Mr. Caleb's has the following prior convictions from Toronto:

a. On October 7, 2008, he was convicted of three offences: (1) possession of a Schedule 1 substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA; (2) flight while pursued by police officer, contrary to s. 249.1(1) of the Code; (3) fail to comply with a recognizance, contrary to s. 145(3) of the Code. He was sentenced on count 1 to 12 months conditional sentence, and a mandatory weapons prohibition order; and on counts 2 and 3 to 12 months conditional sentence (both concurrent).

b. On May 5, 2011, he was convicted of fraud over $5,000. He received a suspended sentence and probation for 12 months, having spent two days in pre-sentence custody.

c. On October 24, 2013, he was convicted of two counts of robbery, contrary to s. 344 of the Code. He was sentenced on the first count to 244 days, two years probation, and a further mandatory weapons prohibition order. On the second count, he was sentenced to 244 days in custody, concurrent with count one.

[ 28 ] Mr. Caleb is 39 years old. At the time of the execution of the search warrant and his arrest, he was 35.

[ 29 ] Mr. Caleb was in custody from May 19 to 30, 2022. Thereafter, he was subject to house arrest for six months after which the Crown consented to a bail variation that has him on a curfew and other conditions.

[ 30 ] Much of Mr. Caleb's history is from the IRCA Report, prepared by Ms. Colleen Sparks. It is consistent with information found in the Pre-Sentence Report. Ms. Sparks is a forensic cultural assessor. She is a registered social worker, trained on the Impact of Race and Culture Assessments at Dalhousie University, and a part-time social work professor at Sheridan College. Her report finds that the impact of institutionalized oppression, racism, and discrimination are significant factors to Mr. Caleb's trajectory into the criminal justice system.

a. Family History

[ 31 ] Mr. Caleb is a Black Caribbean Canadian male of Antiguan Barbudan descent. He was born in Antigua and Barbuda and moved to Canada with his mother, Mrs. Valerie Caleb-Charles, when he was two. Mrs. Caleb-Charles had a brief relationship with Mr. Caleb's biological father, but Mr. Caleb had no relationship with him. Mrs. Caleb-Charles, and her husband, Mr. Charles, both worked while they raised Mr. Caleb and his siblings.

[ 32 ] Mr. Caleb and his siblings reported that Mr. Charles abused alcohol most weekends, would isolate himself, and was emotionally absent during Mr. Caleb's childhood. Up until 2022, Mr. Caleb believed Mr. Charles was his biological father. His mother reported that Mr. Caleb's relationship with Mr. Charles was positive until that point, and that Mr. Caleb was deeply affected when he discovered the truth which resulted in strained family relationships.

[ 33 ] Mr. Caleb has two half-sisters and a full brother. He has contact with two of his siblings. He has no contact with his extended family abroad.

[ 34 ] Mr. Caleb is not in a relationship. He resides with a friend in Scarborough. He is the biological father of three children, aged 14, 11 and three. He has a good relationship with two of his children, and a strained relationship with the third. He sees his youngest child frequently. His family reports him to be a caring father, and that Mr. Caleb seeks to maintain a relationship between his children and his mother.

b. Growing up in the Lawrence Heights Community

[ 35 ] Until Mr. Caleb was 25 years old, he lived in community housing in the Lawrence Heights community in North York (at four different residences). He lived there with his mother, stepfather, and siblings. There, he was introduced to Black male youth identity, but he was not exposed to specific Antiguan and Barbudan cultural programs or organizations to foster positive cultural identity. Nonetheless, he was proud of his Caribbean heritage. He felt at home with Caribbean food, language, Church, and events in the community.

[ 36 ] Ms. Sparks described the Lawrence Heights community as low income, densely populated, disadvantaged, and marginalized, with significant exposure to criminal influences. More than 50 percent of the housing is made up of units with three or more bedrooms, with tenants mostly of West Indian and African descent, whose annual income is approximately $15,000. She opined that growing up in this community significantly impacted Mr. Caleb's involvement in the criminal justice system.

[ 37 ] Mr. Caleb reported to Ms. Sparks that the Lawrence Heights community provided a sense of inclusion for him, but it also negatively impacted him. He was exposed to drug users, dealers, and addicts at a young age. He also recalls police surveillance of the community and being stopped several times by the police. He reported knowing friends and others in the community who were shot and killed by gun violence, and an inability to get away from it. His sister reported one event when Mr. Caleb was shot at.

[ 38 ] Ms. Sparks states that exposure to criminal activity can be impactful on youth in this community, especially Black males who internalize it as normal. This increases an individual's susceptibility towards criminality. She concluded that Mr. Caleb did not have positive Black male role models in his community from his stepfather, educators or others. She believed Mr. Caleb normalized the accounts of gun violence and killings he experienced as routine occurrences.

[ 39 ] When Mr. Caleb was 26 years old, he lived in other areas in North York, then Pickering, with his then-girlfriend. These communities had less police presence and crime compared to Lawrence Heights. From the ages of 30 to 32, he lived downtown in the Liberty Village community. At age 32, he lived in Brampton, then at age 34, he lived in Etobicoke with a friend. He now lives with a friend in Scarborough.

c. Mr. Caleb's Education

[ 40 ] Mr. Caleb has completed grade 11. He attended six schools, both within and outside Lawrence Heights. In his elementary school, he was placed on an Individual Education Plan which continued throughout his schooling. His mother believes he suffers from ADHD or a learning disability, but he was never formally diagnosed or evaluated for either. She reported that by age eight, Mr. Caleb could not read. From interviews with family members, Ms. Sparks concluded that Mr. Caleb's school experience was challenging, and that he had contempt for school.

[ 41 ] In grade nine, Mr. Caleb's mother sent him to a school outside the community with a focus on academics and a racially diverse student body. But there were no Black teachers which made the transition challenging for Mr. Caleb. He experienced racism and discrimination from other students, and his teachers did not offer any special encouragement. His mother had good intentions of smaller class sizes and a focus on academics, but because of the racism and discrimination he endured and a long commute, the experience was not positive.

[ 42 ] In grades 10 and 11, Mr. Caleb attended a different high school after complaining to his mother that he wanted to be closer to home and where his community went to school. Mr. Caleb transferred for grades 11 and 12 because he felt he was treated unfairly by the school's principal due to his brother's behaviour.

[ 43 ] This last school had a predominantly Black student population, but he had no Black teachers. Mr. Caleb became disengaged and quit high school with only four or five credits remaining to graduate. He said he dropped out of school to make money.

[ 44 ] Ms. Sparks concluded that Mr. Caleb's experience of disengagement is a common phenomenon when a Black student does not receive the necessary individualized supports to succeed academically, which can lead to a sense of marginalization and an increased susceptibility to criminality.

d. Mr. Caleb's Work History / Financial Situation / Cannabis Use

[ 45 ] When he was 15 or 16 years old, Mr. Caleb worked part-time at a fast-food restaurant for about a year. He was also introduced to marijuana around this time by his peers in the community. By grade 10, his marijuana use increased from weekly to daily. He said his marijuana use was related to his desire to fit in with his peer group, and to feel relaxed and sociable.

[ 46 ] Because marijuana was accessible in Lawrence Heights, Mr. Caleb began to sell it by grade 12. He reported to Ms. Sparks that he saw it as a faster way to make money "to purchase a car to drive to meet girls…and to purchase things [he] saw on television." He started to sell it at school and in the community. It was profitable and influenced his decision to drop out of school. He continued to sell marijuana after school.

[ 47 ] He also worked part time at a car wash, as a truck driver, and in various packaging jobs. Mr. Caleb receives Ontario Works benefits and financial support from his mother.

e. Mr. Caleb's Cognitive Abilities / Deficits

[ 48 ] Mr. Caleb's mother and sister told Ms. Sparks of challenges Mr. Caleb had in school. They reported he was not able to read when he was eight, an inability to stay still, having difficulty focussing, and being the "class clown" throughout his schooling. At the time, there was an absence of services and supports available to diagnose or treat someone with ADHD or other learning disabilities. Ms. Sparks cites studies which note the challenges racialized and Black students have in accessing these services, if available.

[ 49 ] Ms. Sparks cites social science studies which suggest that adolescents with ADHD may engage in harmful behaviour patterns, including delinquency, reckless driving, and/or substance misuse due to impaired cognitive and executive function deficits. His mother referred to examples of poor choices Mr. Caleb made in selecting his friends, and an inability to identify the danger of picking up strangers in his car.

f. Conclusions from IRCA Report

[ 50 ] Ms. Sparks concludes that Mr. Caleb was impacted by many factors during his youth that likely influenced his engagement in criminal activities and his life trajectory. They included growing up in an low-income community with high rates of criminality; his exposure in the community to drug use, drug dealing, addiction, and gun violence at an early age, and its normalization in the community; his trauma from experiencing police prosecution, gun violence and death in his community; the absence of Black role models, within or outside his family, as he grew up; being a child of an alcohol abuser; Mr. Caleb's desire to fit in among his peers in his community; his possible ADHD or other cognitive disorder that limited his educational potential and delinquent behaviour; Mr. Caleb's experience of discrimination and racism; his use of marijuana as maladaptive coping strategy; and his strained family relationships.

[ 51 ] She further concluded that his circumstances growing up set a trajectory for Mr. Caleb, like other similarly situated young Black men, to internalize a need for belonging, and a diminished sense of hope for a positive future. She stated that criminality offered a sense of belonging for Mr. Caleb, and that he was not immune to its draw because of his desire for inclusion and belonging.

g. Other Evidence re: Mr. Caleb's Future & Rehabilitation

[ 52 ] The author of the Pre-Sentence Report identifies Mr. Caleb's history of inconsistent employment, limited education, financial reliance on social assistance and family members, and limited pro-social supports and economic instability as risk factors in their assessment of him. Mr. Caleb and his mother were interviewed for the pre-sentence report. Mr. Caleb was asked often but did not provide the author with other collateral contacts.

[ 53 ] The author noted that Mr. Caleb's background and current offences demonstrate significant criminogenic needs in the areas of substance use, antisocial associates, and attitudes towards the criminal justice system. When he was last on probation, he had difficulty finding full-time employment. He attended employment counselling but remained unemployed. Probation records showed that his reporting habits were occasionally inconsistent. The author could not determine if Mr. Caleb accepts responsibility or any remorse for these offences; he advised the author he is appealing the judgment in this case.

[ 54 ] On the other hand, the author found there are areas of strength that could support successful rehabilitation: stable core friendships from school, involvement in structured activities in his youth, reflections on his personal growth, and his self-described determination. Mr. Caleb advised the author that he is interested in pursuing education in accounting. Probation records stated he would be a suitable candidate for future community supervision. The author concludes, "[a] carefully structured community supervision plan with targeted interventions addressing these criminogenic needs, combined with support for educational and employment goals, may enhance his suitability for reintegration and reduce the risk of reoffending."

[ 55 ] At the sentencing hearing, Mr. Caleb submitted a letter from the Canadian College of Business, Science & Technology, dated October 10, 2025, which advises that Mr. Caleb has met the requirements for admission to its Human Resource Management program. This is a virtual education program.

[ 56 ] Mr. Caleb also relied on a letter from the Director of FuntoMental Academy ("Academy"). The Academy is an education and mentoring program that supports racialized and Black youth with academic and social endeavours. This letter speaks to Mr. Caleb's previous involvement at the Academy in training and mentoring youth in its recreational programs, and that he was a mentor and overseer of several community initiatives. The author of this letter found Mr. Caleb to be hard-working and supportive, with skills and capacity to continue to make a positive impact in the community. When Mr. Caleb worked with the Academy, how often or for what duration is not mentioned in this letter.

h. ADHD Diagnosis / Treatment

[ 57 ] On February 4, 2026, after receipt of sentencing submissions, I issued an Endorsement inviting Mr. Caleb to provide information about whether he has sought out or received an ADHD or other learning disability diagnosis since the Pre-Sentence Report and IRCA Report were completed.

[ 58 ] Today, Mr. Caleb delivered an affidavit stating that he is attending school virtually, although no particulars are provided. He also stated he met with his doctor on February 14, 2026 about a possible ADHD diagnosis, and he believes his doctor will make or has made a request for Mr. Caleb to be assessed at the Centre for Addiction and Mental Health. I considered adjourning sentencing to allow this assessment to occur. I decided against it because the offence dates from 2022. Sentencing has been delayed already, primarily to allow an IRCA Report to be prepared. Mr. Caleb was well aware of the potential that he had such a condition from his mother and sister for years. It would not be in the interests of justice to adjourn sentencing.

C. Sentencing Positions of the Parties

Crown Position

[ 59 ] The Crown submits that an appropriate sentence is 9 years, after considering credits and the totality principle.

[ 60 ] Crown counsel first submits that a consecutive sentence is appropriate when considering offences for trafficking, gun possession, and breach of a weapons prohibition order.

[ 61 ] For the trafficking offence, the Crown says a range of five to six years is appropriate, arguing that Mr. Caleb is a mid-level dealer trafficking at the ounce level, and that cocaine is an addictive, "hard drug" with significant impacts on community. The Crown also relies on Mr. Caleb's 2008 trafficking conviction, noting it is dated, but says this case is an escalation with Mr. Caleb selling higher volumes and being found with a loaded handgun.

[ 62 ] For the s. 95(1) offence of possessing a loaded firearm, the Crown submits a sentence of 3.5 years is appropriate, arguing that possession in this case was a true crime offence as opposed to a regulatory offence, and that a sentence must emphasize denunciation and deterrence: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, aff'd 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 206. The range of sentence for this offence is 3 to 5 years: R. v. Warrington-Johnson, 2025 ONCJ 61, at para. 32. While this is a first offence, because it was associated with trafficking, the Crown submits a "bump up" to 3.5 years is appropriate.

[ 63 ] For the s. 117.01 offence of possession of a firearm while prohibited, the Crown submits a range of six months to one year is appropriate. The Crown seeks a sentence of one year and argues that Mr. Caleb had two previous prohibition orders which is an aggravating factor, and there was a "double breach" by possessing the handgun and ammunition.

[ 64 ] The Crown accepts that Mr. Caleb is entitled to a Summers credit of 18 days for the 12 days he spent in pre-trial custody.

[ 65 ] The Crown denies a Downes credit is applicable because Mr. Caleb was on strict bail conditions for only six months, and the restrictions did not impact him because he was not working. The Crown agreed to two bail variations after six months; the first reduced the house arrest provisions and imposed a curfew from 10:00 p.m. to 6:00 a.m., permitting him to work during the day; the second variation permitted him to have contact with Ms. Nerb. The Crown says no credits should be afforded for the Charter breaches because they had no or minimal impact on Mr. Caleb.

[ 66 ] Together, these consecutive sentences result in a sentence of 9.5 to 10.5 years, which the Crown submits should be reduced to 9 years based on the totality principle and any applicable credits. The Crown also seeks the following ancillary orders:

a. A s. 109 Order prohibiting Mr. Caleb from possessing firearms for life;

b. A DNA Order under s. 487.051(3)(b) of the Code, as the s. 95(1) offence and s. 5(2) CDSA offence are secondary designated offences as defined under s. 487.04(a) and (b) of the Code.

Defence Position

[ 67 ] Mr. Caleb's counsel argued the appropriate sentence is a conditional sentence of 24 months less one day, to be served in the community, followed by 24 to 36 months of probation. Terms of release were identified, which addressed public safety concerns and rehabilitation steps (e.g., schooling, counselling).

[ 68 ] For the trafficking offence, the Defence argues a sentence between six months to two years is appropriate, relying on R v. Woolcock, [2002] CarswellOnt 7683 (C.A.), at para. 15. The Defence distinguished cases on which the Crown relied which dealt with mid-level traffickers and higher volume dealers, and said Mr. Caleb was neither.

[ 69 ] For the firearm and breach of a prohibition order, the Defence argued sentences for these offences can run concurrently with the two-year conditional sentence for drug trafficking.

[ 70 ] In reaching a global conditional sentence of two years, plus 24 to 36 months of probation with terms, the Defence asks the Court to consider several mitigating factors. These include his reduced moral blameworthiness, based on factors Ms. Sparks identified in the IRCA Report. Mr. Caleb is also a father of three, and the Court must consider the impact of familial separation if a custodial term were imposed: R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, at paras. 45-47. There was also a lengthy gap since his last conviction in 2013. Finally, the defence relies on Mr. Caleb's pro-social goals towards education and working, his willingness to continue to work in the community, and the Pre-Sentence Report that found he would be suitable for community supervision.

[ 71 ] In terms of Charter breaches, the two-year conditional sentence would be inclusive of any credits he might receive for Charter breaches.

[ 72 ] If a sentence of more than two years were imposed, Mr. Caleb seeks a Summers credit of 18 days, and a Downes credit of four months, representing a quarter attribution for conditions imposed during his interim release.

D. Analysis

a. Legal Principles

[ 73 ] The fundamental purpose of sentencing is to protect society; to ensure respect for the law; and to maintain a just, peaceful, and safe society. This is achieved by imposing "just sanctions" that denounce unlawful conduct; deter an offender and others from committing similar offences; separate offenders from society if necessary; assist in rehabilitating an offender; provide reparations to victims; and promote a sense a responsibility in offenders and in the harms they have caused: s. 718 of the Code.

[ 74 ] The most fundamental principle of sentencing is "proportionality", as set out in s. 718.1 of the Code. The principle of proportionality ensures that a sentence reflects the gravity of the offence, which is tied to the principle of denunciation, and that a sentence does not exceed what is appropriate, given the moral blameworthiness or degree of responsibility of the offender. A just sentence reflects both perspectives, without elevating one at the expense of the other: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.

[ 75 ] Evidence of the impact of anti-Black racism on an offender is not relevant to the assessment of the gravity of the offence. However, "an offender's life experiences can certainly influence the choices made by the offender, and can explain, to some degree at least, why an offender made a choice to commit a particular crime in the specified circumstances. Those experiences can include societal disadvantages flowing from systemic anti-Black racism in society and the criminal justice system": R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 75. Evidence that an offender's choices were limited or influenced by disadvantaged circumstances speaks to the offender's moral responsibility: Morris, at para. 76. However, there must be some connection between overt and systemic racism experienced and the circumstances or events that are said to explain or mitigate the criminal conduct in issue: Morris, at para. 97.

[ 76 ] S. 718.2 of the Code requires that I consider the following when imposing a sentence:

a. Aggravating or mitigating circumstances that may increase or decrease a sentence;

b. The parity principle, namely, that sentences imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 31;

c. If consecutive sentences are imposed, whether the combined sentence is unduly long or harsh; and

d. The restraint principle, namely, whether less restrictive sanctions, other than ones that deprive liberty, are appropriate in the circumstances, and that all available sanctions, other than imprisonment, are considered: R. v. Gladue, [1999] 1 SCR 688, at paras. 36, 48, 79.

[ 77 ] Sentencing judges have wide discretion when imposing sentences: R. v. Kerr, [2001] 153 O.A.C. 159 (C.A.). Judges must consider the purpose and objectives of sentencing, be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence, and account for both aggravating and mitigating factors to ultimately fashion a just and appropriate sentence for a particular offender in relation to their specific offence: R. v. O.S.B., 2025 ONSC 6634, at para. 51.

[ 78 ] "[H]ow anti-Black racism has impacted on various aspects of an offender's life will assist the sentencing judge in fashioning a sentence which includes terms that enhance the offender's rehabilitation by addressing, in a direct and positive way, the negative impact of systemic racism": Morris, at para. 105.

b. Aggravating and Mitigating Circumstances

[ 79 ] I next consider aggravating and mitigating circumstances in relation to all three offences. The aggravating circumstances are:

• Mr. Caleb is a recidivist, with convictions from 2008, 2011 and 2013. He has a prior trafficking offence from 2008. The 2013 convictions are for robbery – a violent offence, for which he was sentenced to 244 days, and two years probation. However, Defence counsel advises that Mr. Caleb's role in the robbery was that of a driver, and not of principal. None of the prior convictions are weapons offences, and all are dated. Nonetheless, Mr. Caleb has two prior weapon prohibition orders arising from his 2008 and 2013 convictions. The fact that he possessed a loaded handgun, despite these two orders, demonstrates a complete disregard for court orders. One of the intercepted calls demonstrated his desire and intention to continue drug dealing in a manner that reduced risks of police detection (March 22, 2022). Further, I found he had an intention to deal drugs outside the GTA. This behaviour suggests a clear willingness to commit crimes, even after being caught, punished, and having served a penitentiary sentence in the past.
• The handgun was loaded. As the Crown argued, he twice breached the s. 109 weapons prohibition by having both a handgun and ammunition.
• The handgun was not locked away securely. However, I accept that it was placed in an area Mr. Caleb probably thought was secure (in a pocket of his jeans, in a dresser, in a closet of his bedroom). There was a child in the home, but the child was an infant and had no means of accessing the gun independently. Still, the mere presence of a loaded gun in a home with a child or adult is inherently dangerous.
• I am satisfied beyond a reasonable doubt that the reason for Mr. Caleb's possession of the loaded handgun was associated with his drug trafficking, and specifically his protection. Mr. Caleb stated in an intercepted call that some people carry a gun "to stay protected." This call provides evidence of Mr. Caleb's subjective view that some people carry a gun to protect themselves. Det. Duffus' evidence was that drug traffickers protect themselves from being robbed, shot, or beaten up by carrying firearms.
• I found that the drugs trafficked in at least the calls on April 7 and 22, 2022 was cocaine. However, I was not satisfied beyond a reasonable doubt that Mr. Caleb trafficked in fentanyl which would attract stiffer penalties.

[ 80 ] In terms of mitigating factors, I consider the following:

• There was no evidence that Mr. Caleb used or carried the gun with him in the commission of any offence. There was also no evidence of him carrying it in a public place or private home, or that it was loaded if he did so, placing others at risk. Although, he must have transported it or was aware someone else transported it to the residence where it was found. It would have been a valuable item to him, which would explain why it was not found in his car.
• As mentioned, the handgun was in a secure area of the home, although not locked away.
• Mr. Caleb is a relatively young man. He was 35 when charged with these offences. He has not been involved in the criminal justice system since October 2013. Having said that, the charges are serious and cannot be glossed over as a young adult's poor choices. He is an adult with prior convictions, familiar with the criminal justice system and previously incarcerated.
• The quantity of drugs he trafficked were all relatively small amounts – typically an 1/8th of an ounce or $20 worth. The one exception was the call where he sought to sell four and a half ounces (112 grams) of a substance to a woman for $8,000, and then travelled with the substance to cut it.

I accept Det. Duffus' testimony at the preliminary inquiry, that even 112 grams is an amount that a street-level dealer could traffic in and that this would place Mr. Caleb at the lower end of a drug distribution network. This is consistent with the evidence at trial that had Mr. Caleb contacting one of the Messrs. Burke to pick-up smaller quantities of drugs for specific purchasers. Furthermore, the content of the call between Mr. Caleb and Mr. Jahmel Burke on April 5, 2022 demonstrates that Mr. Caleb was seeking advice about what he could do to make more money if he cut the substance. This suggests Mr. Caleb was unfamiliar with tactics of a mid-level dealer. I am satisfied on a balance of probabilities that he was more like a street level dealer, than mid-level dealer.

• I am satisfied on a balance of probabilities that factors in Mr. Caleb's life played a significant role in his criminal activity and which diminish his moral culpability. They include his history and experience of anti-Black racism; challenges at school; the absence of Black role models; growing up in a community where criminal activity, specifically, drug trafficking and gun violence were normalized; and a desire to fit in and belong. I am satisfied these factors weighed heavily in Mr. Caleb's decision to begin selling marijuana in his teens.

However, there is no evidence that Mr. Caleb attempted, sought out, or took any steps to overcome the disadvantages he faced in his youth and to pursue pro-social objectives, despite his previous involvement in the criminal justice system. When he was last on probation, he had opportunities to do so. Except his own statements of determination and a willingness to reflect on his personal growth, return to school and find work, there was no evidence of his efforts to do any of these things since his last conviction in 2013 or while on bail after his house arrest condition ended in December 2022. It was only today that Mr. Caleb stated he was attending school virtually, but no particulars were provided. There was no evidence of his efforts to deal with his own substance use. He only took steps to consider a diagnosis for possible ADHD or other learning disability after the Court made inquiries of him on February 4, 2026. Mr. Caleb knew, at least from June 2025 when the pre-sentence report was completed and most likely years earlier, that others believed he may suffer from such a condition. The letter from the Director of FuntoMental Academy shows commendable activities Mr. Caleb has engaged in to support Black youth, but there is no indication of when or how often he engaged in these activities.

• I accept that Mr. Caleb may be a good candidate for community supervision, based on his prior experience on probation. He has some family support, notably from his mother and siblings. There was no evidence of him breaching terms of his bail. As such, there is some rehabilitative potential. Although, as mentioned, I doubt his sincerity to pursue rehabilitative measures because I have no evidence of him doing anything since his last conviction or while on bail on these charges, with the exception of the limited information he provided today. If he has ADHD, this may impact his success on a rehabilitative sentence. He failed to cooperate with the author of the pre-sentence report in providing collateral contacts, despite repeated calls made to him. His recidivism matched with the absence of evidence of rehabilitative efforts suggests a sentence with a rehabilitative focus would be neither fit nor just.

Sentence for s. 95 offence

[ 81 ] Denunciation, deterrence, and protection of the public are the predominant sentencing objectives for s. 95 offences. This is because of the prevalence and great danger associated with loaded handguns. "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, at para. 206.

[ 82 ] Handguns and drug trafficking are "frequent companions": R. v. Simon, at para. 1. It is a reasonable inference that a person who sells drugs and has a gun uses the gun for the purpose of protection: R. v. Gabire, 2013 ONSC 3073. All of this leads me to conclude Mr. Caleb possessed the loaded handgun for his protection while engaging in drug trafficking. His possession of the loaded handgun was closer on the spectrum to a true crime, rather than a regulatory offence: Nur, at para. 51.

[ 83 ] A sentence of three 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: R. v. Owusu, 2024 ONSC 671, at para. 29, citing R. v. Graham, 2018 ONSC 6817, at paras. 36-42, aff'd 2020 ONCA 692, 474 C.R.R. (2d) 137; Nur, at para. 206, aff'd 2015 SCC 15), 322 C.C.C. (3d) 149, at para. 120. This sentence range has been applied in cases involving young first offenders with excellent rehabilitative prospects: Owusu, at para. 29, citing R v. Marshall, 2015 ONCA 692, 340 O.A.C. 201; see also, R. v. Mansingh, 2017 ONCA 68, at para. 24.

[ 84 ] I find an appropriate sentence for this s. 95 offence is three years. In selecting the lower end of the range, I considered that the handgun was not used in public nor in the commission of an offence. It was not found in a public place where it posed a real or immediate risk of harm to the public. This distinguishes it from cases where a higher sentence was imposed. This was also Mr. Caleb's first s. 95 offence. A three-year sentence for a s. 95 offence, where there was a weapons prohibition order and minor criminal record, was imposed on a 30-year old offender who had young children in R. v. Johnson, 2025 ONCJ 83.

[ 85 ] I am persuaded that Mr. Caleb's life experiences flowing from his societal disadvantage and anti-Black racism normalized gun possession in his mind. This somewhat attenuates his moral responsibility. As such, I chose a term at the bottom of the range. I also considered reducing the sentence below three years. But when I consider his blameworthiness, I cannot ignore that Mr. Caleb knew he was subject to two weapons prohibition orders. He expressed no remorse or responsibility in relation to any of the offences. Mr. Caleb was clearly an adult in the nearly 10 years between his last conviction and the charges in this case. During that time, he has not demonstrated any pro-social efforts.

[ 86 ] I also considered the principle of restraint, and whether a conditional sentence with a rehabilitative focus is appropriate. A conditional sentence may be appropriate to ameliorate the overincarceration of young Black men: Morris, at para. 180. However, Mr. Caleb was subject to two weapon prohibition orders, and I am not satisfied he is willing or able to follow Court orders. He complied with bail conditions for these offences, but he did not consistently attend appointments when he was previously on probation. I question his anticipated compliance with terms of a conditional sentence, especially given his lack of effort to address any disability or return to school and work.

[ 87 ] Cases in which a conditional sentence was ordered for a s. 95 offence against a Black offender subjected to anti-Black racism are distinguishable. For example, in R v. Beharry, 2022 ONSC 4370, the offender had no criminal record, accepted responsibility for his actions, and carried the gun to protect himself within his community unrelated to drug trafficking. In R. v. Lewis, 2022 ONSC 1260, the offender was 22 at the time of the offence, considered a first-time offender, pled guilty and accepted responsibility for his actions, and the gun was found in a locked safe. No weapons prohibition order was in place, and the offender made substantial efforts at rehabilitation. R. v. Collins, 2023 ONSC 5768, 544 C.R.R. (2d) 43 is factually similar to this case (similar offences, criminal record, and weapons prohibition order), but Mr. Collins pled guilty and there was compelling evidence of significant rehabilitative steps he took while on bail. And in R. v. Stewart, 2022 ONSC 6997, the offender was 19, had no criminal record, and had taken counseling while on bail.

[ 88 ] I have considered that Mr. Caleb has three children, and the impact of imprisonment on his family and his relationship with the children. However, he is not the primary caregiver to any of his children. Also, Mr. Caleb has not had a job for years, has no means to financially support his children, and there are no support orders in place.

[ 89 ] I have not "bumped up" the term to 3.5 years as sought by the Crown. Even though I am satisfied Mr. Caleb's possession of a handgun was associated with his drug dealing, there was no evidence he used it in relation to his drug dealing. He will receive a distinct sentence for the trafficking offence.

Sentence for s. 117.01 offence

[ 90 ] I find an appropriate sentence for the s. 117.01 offence is, one year imprisonment consecutive to the three years for the s.95 offence. Cases suggest that a sentence of one year is appropriate. I see no reason to reduce or lower the sentence after considering the aggravating and mitigating circumstances in this case. For the same reasons given for the s. 95 offence, I find that a conditional sentence is not appropriate.

[ 91 ] There is significant authority for finding that a sentence for a s. 117.01 offence should run consecutively; "separate punishment is required if court orders are to have real meaning": Graham, at para. 41 and cases cited therein; R v. Claros, 2019 ONCA 626, at para. 51.

Sentence for s. 5(1) CDSA

[ 92 ] I find an appropriate sentence for the trafficking offence is a consecutive term of imprisonment of nine months. This is consecutive to the sentences for the other two offences.

[ 93 ] The range of sentences for cocaine trafficking from Court of Appeal decisions are summarized by Green J. in R v. McGill, 2016 ONCJ 138, at para. 54. The range is five to eight years for half a kilogram; more than ten years for higher amounts; more moderate amounts of an ounce or less receive six months to two years less a day; and intermediate amounts tend to attract sentences in the range of two to four or five years.

[ 94 ] Mr. Caleb trafficked more than one ounce but less than a half a kilogram on one occasion, which suggests the appropriate range is two to five years. However, I find a range of six months to two years less a day used in cases of an ounce or less is appropriate in this case. Within this range, I find an appropriate sentence is 9 months.

[ 95 ] First, there is insufficient evidence to conclude beyond a reasonable doubt that Mr. Caleb was a mid-level dealer. Virtually all incidents of trafficking involved small amounts of an 1/8th of an ounce, or an amount valued at $20. He sold these amounts to repeat customers, akin to a street level dealer.

[ 96 ] Second, the one time he trafficked in four and a half ounces (or 112 grams) of a controlled substance, Det. Duffus' evidence was that this amount could be sold at the street level and would involve sales at the bottom of the distribution network. The content of Mr. Caleb's call with Mr. Burke on April 5, 2022, does not suggest he was regularly dealing in this amount. This call appeared to be a "one off", with Mr. Caleb unfamiliar with the idea of cutting drugs. There was also no evidence that he in fact cut this amount of drugs, sold it to the woman for $8,000, or that he sold any remaining amount to others. These are all mitigating factors.

[ 97 ] Third, I am satisfied that Mr. Caleb's exposure to, and normalization of, drug trafficking from his youth created a trajectory from which Mr. Caleb found difficult to escape. I can appreciate how he likely perceived that drug trafficking may have been among the few income-earning options available to him. He dealt marijuana at an early age. I am satisfied there is a connection between his upbringing and this offence. This all suggests reduced moral culpability.

[ 98 ] However, I decline to impose a conditional sentence for this offence. He was convicted of drug trafficking in 2008 and received a conditional sentence at that time. There was no evidence of him pursuing pro-social goals since his last conviction. A sentence of increased severity that includes a custodial term is necessary in the circumstances for specific deterrence.

[ 99 ] I have selected a sentence of nine months, at the lower end of the range. I did not select the lowest end of the range (i.e., six months). Cocaine, while not as deadly as fentanyl, is addictive and "causes significant direct and indirect damage to users, to their families, and to the safety and security of society.": Graham, at para. 44.

[ 100 ] Conviction for drug trafficking requires a separate consecutive sentence from gun offences: R v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at paras. 128-29; Graham, at para. 43. As such, this sentence shall run consecutively to the other sentences imposed.

Credits

[ 101 ] Mr. Caleb is entitled to Summers credit of 18 days.

[ 102 ] In terms of Downes credits, Mr. Caleb was arrested on May 19, 2022, and has restrictions placed on his liberty since. I agree with the Crown that Mr. Caleb was not working in the first six months when he was under house arrest. However, this still amounts to a loss of liberty. It would be unfair to Mr. Caleb to critique him for not engaging in pro-social activities when he was prohibited from leaving his home. In the remaining period of his bail, he continued to have conditions imposed on him (i.e., a curfew), which also amounted to a moderate loss of liberty. I find that a reasonable Downes credit in these circumstances is three months.

[ 103 ] In terms of the Charter breaches, I agree that there should be a modest reduction in the sentence for the approximate 1-hour delay in Mr. Caleb being unable to exercise his right to counsel. This was a circumstance related to Mr. Caleb following his arrest. I fix this credit to 2 days. I do not grant a credit for the s. 8 Charter breach related to the delay in filing the Report to Justice. This has no correlation between the offence or the offender.

Total Sentence

[ 104 ] I order Mr. Caleb to be imprisoned for a total term of four years and 160 days. I find this to be a fit and just sentence for these offences, after considering credits owed to Mr. Caleb and the totality principle. I also order:

a. a s. 109 Order prohibiting Mr. Caleb from possessing firearms for life;

b. a DNA Order under s. 487.051(3)(b) of the Code, as the s. 95(1) offence and s. 5(1) CDSA offence are secondary designated offences as defined under s. 487.04(a) and (b) of the Code.

c. Forfeiture of property seized from the search warrants under s. 462.37 of the Code.

[ 105 ] Finally, I make a strong recommendation to the penitentiary that will keep Mr. Caleb to have him assessed for ADHD or other possible learning disability, and that he receive the recommended treatment while imprisoned. This will support his rehabilitation upon his release.

M. Sharma, J.

Released: February 17, 2026

[^1]: The maximum term of imprisonment was increased to 14 years, effective December 15, 2023.