HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 143

CITATION : R. v. DaSilva , 2019 ONCJ 143 DATE : March 19, 2019 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — JOHN JUNIOR DASILVA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J.C. Healy For the Crown B. Plant For the Defendant Heard: October 30, 2018 and March 5, 2019 REASONS for SENTENCE MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] John Junior DaSilva was arrested on October 16, 2017. A subsequent authorized search of his bedroom located a satchel containing a loaded .38 calibre revolver and 153.44 grams (approximately 5½ ounces) of crack cocaine.

Scales and related trafficking paraphernalia were found nearby. DaSilva appears with the same revolver in a video posted on Instagram. He was subject to a weapons prohibition order at the time of his arrest. [ 2 ] A year later, on October 30, 2018, DaSilva (hereafter, the offender) pled guilty to three offences arising from these events: possession of a loaded firearm ( Criminal Code , s. 95(1) ), possession of a firearm in violation of a weapons prohibition order ( Code , s. 117.01) and, finally, possession of cocaine for the purpose of trafficking ( Controlled Drugs and Substances Act , s. 5(2)).

He was 21 when he committed these three offences. [ 3 ] Crown and defence counsel agree that a penitentiary-length sentence is an appropriate global disposition. They differ as to the structuring and duration of that sentence. The Crown urges an effective sentence of 4½ years (54 months). The defence submits that a term of between two and three years (24 and 36 months) is a fit sentence. Appellate authorities support the range bracketed by counsels’ representations for offence combinations similar to those in the case before me. As always, much turns on the circumstances of the offences and the offender. B.

FACTS (

a) Introduction [ 4 ] The evidence material to the commission of the offences is already summarized. That pertaining to the relevant history of the offender’s conflicts with the law and his personal antecedents and current circumstances follow. (

b) A Procedural Chronology

[ 5 ] The offender had no prior “convictions” at the time of his arrest. He had been found guilty of an unrelated common assault on August 30, 2017 – about six weeks before the occurrence of the offences that bring him before me. He was conditionally discharged, placed on probation for a year, and subjected to the five-year weapons prohibition order he breached on October 16, 2017. [ 6 ] The offender spent nine days in custody before being released on a recognizance.

Approximately three months later, he was arrested in the area of Trenton, Ontario and charged with several offences, including one involving marijuana, a breach of his recognizance and, in turn, a breach of his probation order. His bail on the charges before me was not rescinded. However, he was detained on the Trenton charges until March 20, 2018. It appears that he was then released on a global recognizance that included conditions of “house arrest” and that he reside with one of his sureties.

There is no suggestion that he did other than comply with the conditions of this release order. [ 7 ] The Trenton charges were resolved by ways of pleas of guilty on November 28, 2018. Factoring-in appropriate credit of three months for his pre-trial custody, the offender received concurrent sentences of one day in custody and 12-months’ probation. Although the Crown endeavoured to accommodate the offender, the three named sureties were unable to effect a proposed relaxation of his bail conditions.

As a result, and despite the resolution of the offender’s Trenton-based charges, he has spent the past four months subject to the interim release terms imposed in Trenton, including house arrest, and has been effectively unable to seek or secure employment. [ 8 ] No date for a preliminary inquiry, trial or any motions has been set in the matter before me. The offender’s pleas and his counsel’s navigation of the defence have relieved the Crown of otherwise having to prosecute and establish its case or defend against any claims of constitutional trespass. (

c) The Offender [ 9 ] The offender has just turned 23. Several members of his family attended his sentencing hearing. Their support is undoubtedly genuine. However, the offender’s childhood was characterized by absent parenting, questionable mentoring and negative role modeling. [ 10 ] The offender was exposed to a culture of criminality for much of his life. His father is a functioning alcoholic. His mother died in 2014. They were frequent domestic conflicts in his youth, and both of his parents spent time in jail. The offender and his several siblings lived with their maternal grandmother for several years.

From the age of 12 to 18, the offender lived with a girlfriend at her mother’s home. According to the offender’s pre-sentence report (PSR), that relationship “dissolved due to [the girlfriend’s] involvement with drugs and human trafficking”. He was later involved with a woman seven years his senior, at whose home he lived for the couple of years prior to his drugs-and-gun arrest. The woman, as described in the PSR, worked at “an exotic massage parlour”. She is the offender’s co-accused on the charges before me.

She and the offender have had no contact since their arrests, and Crown counsel has signaled her charges will be withdrawn once Mr. DaSilva is sentenced. [ 11 ] The offender has a grade nine education. He has had various manual employment since he was 18. Other than marijuana, the offender does not consume any drugs and seldom drinks alcohol. He apologized to the court for his criminal conduct and expressed his intention to “go straight”, advance his schooling (to which end he has already applied for distant education while incarcerated) and pursue lawful employment when granted parole.

His girlfriend is expecting a child within the month. C. ANALYSIS [ 12 ] The “fundamental” principle of sentencing is set out in s. 718.1 of the Code : a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Speaking to the first half of the proportionality principle, the Court of Appeal, in R. v. Wong , 2012 ONCA 767 , at para. 11 , said that, “courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community”.

Unsurprisingly, the sentencing goals of deterrence and denunciation are of predominant concern in addressing these offence patterns. That said, the objective of rehabilitation and the principles of totality and restraint must also be afforded their due weight, particularly where, as here, Mr. DaSilva was a youthful, conviction-free offender at the time of the offences that bring him before this court. [ 13 ] The offender is not an addict-trafficker, nor do any features of his crimes or his personal history otherwise render him subject to exceptional consideration on sentencing.

As guided by the relevant jurisprudence and as acknowledged by counsel, the offences at issue direct a penitentiary-length sentence – that is, one of at least two years.

The key questions, those that reflect the fissures between the parties’ positions, are the overall duration of the sentence, the credit to be granted the offender’s several months of relatively onerous bail conditions, and, if less contentious, the composition of the global sentence (that is, the concurrent or consecutive nature of its three offence components). [ 14 ] There is no evidence that the gun was ever fired, wielded in public, or used offensively. Nonetheless, its unlawful possession was a “true crime”.

That one can imagine more egregious circumstances does not diminish the severity of the offender’s own criminality. He was in unauthorized possession of 5½ ounces of cocaine and a loaded weapon while expressly prohibited from possessing any firearms or ammunition. The immediate proximity of the gun and the drugs speaks to related if not complimentary criminal purposes.

Put most favourably to the offender, the presenting circumstances – although very grave – do not amount to the worst of this genus of offence or combination of offences. [ 15 ] The submissions of Crown and defence counsel do not reflect a joint position as to the appropriate disposition. Nor is there one correct or perfect sentence. What matters is that the sentence is proportionate and reflects due consideration of the relevant sentencing principles and objectives and a fair weighing and balancing of material aggravating and mitigating factors.

To that end, I am of the view, as reinforced by the authorities pressed on me by counsel, that a fit sentence falls within the bracket fixed by the parties: 24 to 54 months. The precise location of the offender within this range rests largely on his “degree of responsibility”, the second branch of the proportionality equation. [ 16 ] As I wrote in R. v. Zachar , 2018 ONCJ 631 , at para. 70 , this latter inquiry involves two distinct, if often analytically conflated,

… dimensions of relative liability impinging on the determination of a fit sentence. One involves an assessment of the nature and degreeof the offender’s participation – her or his role or involvement – in the criminal conduct. The second concerns the offender’s moralblameworthiness other than that arising from her or his physical or instrumental role in the commission of the offence. [17] There can be no doubt that the offender was involved in the commercial distribution of a dangerous drug commonly associatedwith grievous public health and safety concerns.

The statutory penalty for its trafficking extends to life imprisonment. The amount foundin the offender’s possession makes clear that he was situated at least one or two steps up the distribution hierarchy from those engaged instreet sales. The presence of a loaded handgun underscores the potential for violence associated with trafficking in drugs listed inSchedule I of the CDSA. But for its own related charge, the presence of a firearm would be treated as a seriously aggravating factor onthe constructive trafficking count.

Nonetheless, the offender’s precise role in this unlawful trade remains something of a mystery. Whilescales and packaging materials were found alongside the cocaine, no money or debt lists were seized, nor was any evidence led as to theoffender selling drugs, of pedestrian traffic in and out of his residence, of his contacts or modes of supply or delivery, or of anyenrichment from which he personally benefitted. As a result, I am left uncertain as to whether the offender himself actively distributedcocaine or whether he operated as a storeroom or stash-house for others.

Either way, he occupied a somewhat elevated position in theenterprise and, if the latter, one invested with considerable trust. [18] The offender’s moral culpability requires at least equally close scrutiny. This second facet of the “responsibility” analysisfocuses on his status as a previously unconvicted, youthful offender, his unfortunate upbringing, and his rehabilitative prospects. As tothe latter consideration, the offender’s arrest in Trenton informs the need for a measure of specific deterrence in the crafting of anappropriate sentence.

That said, he faithfully complied with his house-arrest bail for the past year and has recently made positive effortsto advance his education during his pending incarceration. In short, his more recent conduct is at least consistent with his expression ofpro-social ambitions. [19] Central to the ultimate responsibility calculus are the offender’s difficult upbringing and relative youth (only 21) at the time ofthe offences. His childhood can be fairly described as dysfunctional and disadvantaged. He had poor normative modeling, onlyrudimentary formal education and, at best, dubious parental guidance.

By the age of 12, he lived separate from his extended family, indomestic environments punctuated by criminal activity, or at least moral ambiguity. He is not, in law, a “young person” governed by themore lenient provisions of the Youth Criminal Justice Act. Nonetheless, as said of “young people” more generally by the Supreme Courtin R. v. D.B., 2008 SCC 25 , [2008] 2 S.C.R. 3, at para. 41, “because of their age, [they] have heightened vulnerability, lessmaturity and a reduced capacity for moral judgment”. (See also: R. v. B.F., 2009 SKCA 136 , 249 C.C.C. (3d) 366, at para. 38;R. v. Leask (1996), (MB CA), 113 Man.

R. (2d) 265, at para. 3; and R. v. Lacasse, 2015 SCC 64 , [2015] 3S.C.R. 1089, at para. 134.) Accordingly, rehabilitative and ameliorative sentencing goals remain salient mitigative considerations onsentencing. [20] The principle of restraint, as prescribed by sub-ss. 718.2(

d) and (

e) of the Code, also bears on a just disposition. In R.v. Gladue, (SCC), [1999] 1 S.C.R. 688, at para. 36, the Supreme Court, made clear that this principle “applies to alloffenders, and states that imprisonment should be the penal sanction of last resort”. It follows that a sentence of imprisonment, whereotherwise necessary, should be as brief as application of the principle of proportionality permits. Before Gladue, in R. v.

Priest, , 110 C.C.C. (3d) 28, at paras. 18 and 22, Rosenberg J.A., speaking for the Court of Appeal, reaffirmed that, [I]t has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary interventionthat is adequate in the particular circumstances. … The rule laid down by this court is that ordinarily for youthful offenders, as for first offenders, the objectives of individual deterrence andrehabilitation are paramount. [Emphasis added.] That “rule” must here be harmonized with the repeated invocation of deterrent and denunciatory goals in the sentencing of personsconvicted of firearms offences and those involving trafficking in

Schedule 1 drugs – especially where, as here, they occur in conjunctionand in direct breach of a court order. The proper reconciliation, in my view, is secured through the imposition of a penitentiary-lengthsentence, but one close to the lower end of that continuum. As famously said by the Court of Appeal in R. v. Borde, ,63 OR (3d) 417, at para. 36, The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciationand general deterrence.

Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courtsought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [Emphasis added.] (See also, R. v. Dubinsky, [2005] O.J. No. 862, (C.A.), esp. at para. 2, and R. v. Batisse, 2009 ONCA 114 ,241 C.C.C. (3d) 491, at paras. 32-34.) [21] Standing alone, each of the two possessory offences could attract appeal-proof dispositions somewhat in excess of two years,even for youthful first offenders.

A high-end reformatory-length sentence is also within a range condoned by the Court of Appeal foreach of the two same substantive offences. (See, by way of a s. 95 example, R. v. Nur, 2013 ONCA 677, 117 OR (3d) 401, at para. 109;affd. [2015] 1 S.C.R. 773, 2015 SCC 15.) However, their combined gravity, further aggravated by a weapons prohibition breach,strongly favours a comprehensive penitentiary-length sentence. As already noted, neither the circumstances of the offences or thosepersonal to the antecedents, participation or post-offence reformation of the offender here relieve against such disposition.

However, assaid by the Supreme Court in R. v. Lacasse, supra, at para. 128: If a judge fails to individualize a sentence and to consider the relevant mitigating factors while placing undue emphasis on thecircumstances of the offence and the objectives of denunciation and deterrence, all that is done is to punish the crime. [R. v. R. (M.), 2010 QCCA 16, 73 C.R. (6th) 136, at para. 49.]

[22] In my view, and before considering the offender’s pre-trial custody, the fit effective global sentence is one of 27 months (twoyears and three months) imprisonment. In fixing a global sentence I bear in mind the principles of restraint and, again, totality, and, aswell, the offender’s youth, the absence of prior conviction, his plea of guilty, and his expressions of remorse and rehabilitative interest. Ialso grant some mitigative effect, if only modest, to the approximately four months of stringent bail conditions attributable to theseoffences: see, e.g., R. v. Adamson, 2018 ONCA 678 , [2018] O.J.

No. 4104, at para. 106. [23] The trafficking and firearms offences are to be addressed by way of concurrent sentences. I appreciate that the two offencesrepresent distinct delicts, but their factual congruity recommend a single, joint sanction reflective of their conjunctive gravity. Further, ifsubject to consecutive sentences, the application of the totality principle risks reducing the penalty attributable to each offence to aquantum that fails to adequately reflect its discrete seriousness.

Bearing in mind the consecutive disposition to follow, the offences ofconstructive trafficking and possession of a loaded firearm each attract a sentence of 21 months – to be served concurrently. [24] There is no legal impediment to similarly imposing a concurrent disposition for breach of the weapons prohibition order: see R.v. McCue, 2012 ONCA 773, at para. 22. Tempered, of course, by application of the totality principle, I think the here better approach isto proceed by way of a consecutive sentence. (See R. v.

Graham, 2018 ONSC 6817, at para. 41, and the authorities cited therein.) Theeffective consecutive sentence for violating the order is, then, one of 6 months. Deducting the offender’s pre-sentence custody of 9 days,and crediting them on 1.5:1 basis, the sentence for the s. 117.01 offence is 5½ months, consecutive to the 21 months imposedconcurrently for the other two offences. [25] In the result, the offender’s global sentence, going forward, is one of 26½ months – two concurrent sentences of 21 months,followed by a consecutive sentence of 5½ months.

In addition, and by way of ancillary orders, the offender is to provide a sample of hisbodily substance for DNA analysis and archiving, and he is prohibited from possessing any firearms, ammunition, explosives, and allother offensive devices listed in s. 109 of the Code for the rest of his life. D. CONCLUSION [26] For the reasons recited, the offender John Junior DaSilva is sentenced to a total of 26½ months of imprisonment. Certainancillary orders accompany this disposition. Released on March 19, 2019 __________________________ Justice Melvyn Green