R v. JAHVON, 2021 QCCQ 233

R. c. Collins 2021 QCCQ 233 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL « Criminal and Penal Division » No: 500-01-191446-191 500-01-191447-199 500-01-191448-197 DATE: JANUARY 19, 2021 ______________________________________________________________________ THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN PROSECUTOR v.

JAHVON, COLLINS ACCUSED ______________________________________________________________________ JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] A little before 8:00 on the morning of June 28, 2019, Jahvon Collins was travelling in a car, with three other persons, on Boulevard Côte Des Neiges. The car was intercepted by police because Mr. Collins and another passenger were not wearing their seatbelt. A search of the police database revealed that an arrest warrant was pending against Mr. Collins. After being advised of this warrant, Mr.

Collins did not comply with the officers’ request that he step out of the car. Rather, the situation quickly escalated with Mr. Collins physically resisting the officers and trying to remove a fanny pack that he was wearing. The fanny pack was eventually seized by the officers and searched. It contained a firearm, fully loaded with live rounds of ammunition. [ 2 ] At the time of his arrest, Mr. Collins was subject to two Court orders prohibiting him from possessing firearms pursuant to s. 109 and s. 110 of the Cr. C.

He was also subject to a probation order, prohibiting him from possessing firearms. [ 3 ] After a trial was held, Mr. Collins was found guilty of the following offences, for which the Court must now impose sentence: • 500-01-191446-191: a count of possession of a firearm with ammunition (s. 95(2)

a) Cr. C.); a count of careless storage of a firearm (s. 86(2)(3)

a) Cr. C.); and, a count of unauthorized possession of a firearm in a motor vehicle (s. 94(1)(2)

a) Cr. C.); • 500-01-191447-199: two count for having breached the two Court orders prohibiting him from possessing firearms (s. 117.01(1)

(3) a) Cr. C.); and, • 500-01-191448-197: a count for having breached his probation order (s. 733.1(1)

b) Cr. C.). [ 4 ] The Crown is seeking a global sentences of 54 months of imprisonment while the Defence is asking for a global sentence of 30 months of imprisonment. ANALYSIS General sentencing principles

[ 5 ] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society [1] . [ 6 ] This purpose is met by the imposition of “just sanctions” that reflect the following sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation and the promotion of a sense of responsibility in offenders and acknowledgment of the harm caused to the victim and to the community [2] . [ 7 ] A sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.

Thus, whatever weight may be given to the sentencing objectives, the sentence must respect the fundamental principle of proportionality [3] . [ 8 ] A sentence must also respect the parity principle according to which similar offenders who commit similar offences in similar circumstances should receive similar sentences [4] . The system of sentencing ranges and categories adopted by the courts in Quebec is designed to achieve that parity. [ 9 ] While at first glance, parity and proportionality may appear to be conflicting principles, they are in fact complimentary.

A consistent application of the proportionality principle will lead to parity within sentencing as judges will calibrate the demands of proportionality by referring to the sentences imposed in similar cases [5] . [ 10 ] Even though the Criminal Code applies everywhere in the country, local characteristics, such as the fact that a particular type of crime occurs frequently in a particular region, may influence the sentencing process.

The prevalence of a certain crime in a certain community may emphasise the need to denounce the unlawful conduct and to deter anyone else from doing the same thing [6] . [ 11 ] In short, the determination of a just and appropriate sentence is a highly individualized exercise. It requires the sentencing judge to balance sentencing principles and objectives wile considering the circumstances of both the offense and the offender. It involves a variety of factors that are difficult to define with precision and that will be weighed differently depending upon the circumstances of each case.

Sentencing principles applicable to gun-related offenses and the sentencing range [ 12 ] Common sense and human experience suggest that the illicit possession of a firearm, particularly a hand gun, serves two purposes: to threaten or to inflict serious bodily harm or death [7] .

People carrying loaded illegal weapons represent a real danger as guns increased the risk of harm to everyone and jeopardize the security of our communities. [ 13 ] This is why Parliament has sought to protect the public from firearm-related injuries and to deter crimes involving firearms through a combination of strict licensing and registration requirements under the Firearms Act [8] and criminal prohibitions included in the Criminal Code [9] . [ 14 ] One of these prohibitions is found at s. 95 Cr. C. This

section seeks to protect the public by criminalizing the possession of potentially dangerous firearms in situations where the danger posed by the possession of the firearm is increased, for example by having readily accessible ammunition. By criminalizing the possession of a firearm in such circumstances, the law intercedes before someone is actually harmed and before criminal activity actually occurs or is attempted [10] . [ 15 ] As explained by Justice Doherty of the Ontario Court of Appeal in R. v. Nur [11] , the scope of s. 95 Cr. C. covers a wide range of potential offenses.

At one end of the spectrum stands the person who carries a loaded prohibited or restricted firearm in public places as a tool of his criminal trade. 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 gun owner who has possession of an unloaded restricted firearm for which he has a licence and a registration certificate, but who has readily accessible ammunition stored nearby.

Thus, while that gun- owner knowingly possesses the firearm at a place that falls outside the terms of his licence, his conduct poses little, if any, risk to others. The moral blameworthiness of the gun-owner is very different from that of the person standing on a street corner with a loaded firearm for which he knows he has no authorisation and which he intends to use as he sees fit. [ 16 ] As underlined by Justice Doherty, the vast majority of persons charged under s. 95 Cr. C. fall at the true crime end of the spectrum.

Most guns that are subject matter of this offense exist entirely outside the regulatory scheme established under the Firearms Act . Most people charged of such an offense would never think of applying for a licence and, were they to apply, would never obtain a licence or a registration certificate. Furthermore, the vast majority of these offenses arise in situations where the possession of the firearm is directly connected to criminal activity and/or poses some other immediate danger to other persons. [ 17 ] Thus, in imposing a sentence for an offense under s. 95 Cr.

C., courts must situate the offense and offender on the spectrum identified by Justice Doherty while, at the same time, keeping in mind that individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, pose a real and serious danger to others and their community.

[ 18 ] As a result, sentences for these crimes should emphasize the need for deterrence and for denunciation [12] . As Chief Justice McLachlin noted in R. v. Nur [13] , most offenses caught by s. 95 Cr. C. may well merit a sentence of three years of imprisonment or more. Prevalence of gun-related crimes in Montreal [ 19 ] Canadian courts have always been concerned by gun violence. That being said, in recent years, judges in Toronto have been explicit in denouncing the proliferation of hand guns and gun violence in their city.

Toronto judges have recognised the need for exemplary sentences for possession of unauthorised firearms in Toronto [14] . [ 20 ] Quebec court judges sitting in Montreal preside over various proceedings, from the first appearance of the accused, to his bail hearing, his preliminary hearing and sometimes his trial. As such, they are well aware of the frequency of various offenses in Montreal. In two recent decisions, Justice Galiastatos [15] and Justice Labelle [16] both recognised that gun-related crimes are rapidly rising in Montreal, becoming a real scourge.

The prevalence of gun-related crimes in Montreal heightens the need for denunciation and deterrence. The message must be clear: guns will not be tolerated in Montreal. Quebec sentencing range for offences pursuant to s. 95 Cr. C. [ 21 ] In 2016 in R. v. Green [17] , the Quebec Court of Appeal set a sentencing range of between 18 and 36 months of imprisonment for cases similar to that of Mr. Green, a 19 years old man without priors, arrested on the street with a loaded prohibited firearm found in the back pocket of his pants. In this specific case, the Court of Appeal confirmed Mr.

Green’s sentence, which was 24 months of imprisonment, stating that sentences more than 36 months of imprisonment should be imposed when the circumstances surrounding the commission of the offence are more serious than the circumstances in Mr. Green’s case. [ 22 ] In 2017, R. v. Colangelo [18] , the Quebec Court of Appeal reiterated the sentencing range of between 18 and 36 months of imprisonment for cases situated in the middle of the spectrum identified by Justice Doherty in R. v. Nur . Mr.

Colangelo, who had pled guilty to various offense relating to the possession of two semi-automatic rifles, a magazine that was a prohibited device and ammunitions, was sentence to two years less a day of imprisonment. The rifles, the magazine and the ammunitions were found pursuant to the execution by the police of a search warrant, concealed in a bag, under a bed, in a basement bedroom in Mr. Collangelo’s house. When arrested, Mr. Colangelo was under conditions not to possess firearms.

He had various priors, including two offences relating to firearms but those offenses dated back to more than 10 years. [ 23 ] As stated above, sentencing ranges are used to ensure the parity principle. They serve as guides for sentencing. They should not, however, be construed as a straitjacket [19] . Principles applied to Mr. Collins [ 24 ] The objective gravity of the various offenses committed by Mr.

Collins is as follows: • The offences of possession of a loaded firearm with ammunition and unauthorized possession of a firearm in a motor vehicle are both punishable by a maximum of ten years of imprisonment. • Possession of a firearm contrary to a court order rendered pursuant to s. 109 or s. 110 of the Criminal code is also punishable by a maximum imprisonment of ten years. It is the only breach offense relating to a breach of a Court order that is punishable by an imprisonment of more than two years when prosecuted by indictment.

This is an indication of the seriousness of such a breach. • Careless storage of a firearm is an offense that is punishable by a maximum imprisonment of two years, while breaching a probation order is subject to a maximum of 18 months in prison on

summary conviction. [ 25 ] The circumstances surrounding the offences were outlined above and addressed in more details in the Court’s decision on the motion to exclude dated November 15, 2019. That being said, the Court underlines that it did not believe the testimony of Mr. Collins with regard to how he came into possession of the firearm. [ 26 ] The circumstances surrounding the offences reveal the presence of aggravating factors, which are as follows: • Mr. Collins was carrying a fully loaded firearm with live rounds of ammunition; • The overcapacity magazine of the firearm was a prohibited device;

• The firearm was concealed in a bag, on his person; readily available for use; • The firearm was in a motor vehicle on a public street in a densely populated area of Montreal at 8:00 in the morning; • Mr. Collins’ obstructive behaviour at the time of his arrest, including his attempt to remove his fanny pack, increased the risk of accidental discharge, putting at risk not only the two police officers involved but also, the other three passengers of the car; and, • Mr.

Collins was under a recent probation, prohibiting him from possessing weapons. [ 27 ] There are no mitigating circumstances surrounding the commission of the offenses. In this regard, the defence insisted on the fact that Mr. Collins was stopped by the police because he was not wearing his seatbelt, as opposed to being stopped for other criminal activities. While being arrested in possession of a loaded firearm while carrying other criminal activities is an aggravating factor, it would be an error to conclude that the lack of evidence regarding other criminal activities is a mitigating factor.

As the Quebec Court of Appeal underlined, treating the absence of an aggravating factor as a mitigating factor is plain error [20] . [ 28 ] The circumstances relating to the offender, Mr. Collins, are as follows: • Mr. Collins is 23 years old. • His youth criminal record begins in 2010, when he was 12 years old. It shows multiple convictions for violence related crimes such as robbery, assault causing bodily harm, extortion and uttering threats as well as multiple convictions for resisting or willfully obstructing a peace officer in the execution of his duties.

It shows one entry in relation to a weapon related offence that is possession of a weapon for a dangerous purpose. There are more than 30 entries relating to his failure to comply with sentences (s. 137 of the Youth Criminal Justice Act ), his failure to comply with the condition of his detention (s. 139 of the Youth Criminal Justice Act with reference to s. 30 and s. 31) or failure to comply with the conditions of an undertaking or recognizance (s. 145(3)

a) Cr. C.). Finally, there is one entry for being illegally at large (s. 145(1)

a) Cr. C.). • His adult criminal record shows one prior conviction for carrying a concealed weapon and one conviction for failure to comply with the conditions of an undertaking or a recognizance. It also shows convictions for assault, uttering threats, resisting or willfully obstructing a peace officer in the execution of his duties and assault on a peace officer. • Mr. Collins was detained in Ontario from March 6, 2017 to December 20, 2018. [ 29 ] The Defence argued that Mr. Collins’ young age is a mitigating factor. Youth is often taken into consideration when tailoring a first sentence for a young person.

In the matter at hand, although Mr. Collins is young, he is not a first offender. His youth has thus little impact in this matter. [ 30 ] At the sentencing hearing, Mr. Collins’ mother testified. She has always been there for her soon, whom she visited while he was detained in Ontario in an unrelated matter and in Quebec in relation to this matter. She is convinced that her son has changed. He has taken steps to enroll in a music recording program, and he even talks about attending university. He has a plan to take control of his life and shows ambitions.

She believes that her son understands that this is his last chance. She is willing to take him back home with her and to provide him help and support. She too, has also changed. She was a young mother to Mr. Collins and thus had problems being authoritative. She is more experienced now, and will be more authoritative with him. As for the fact that her son was living with her when he committed the offenses for which he is now charged, she explained that upon released from jail in December 2018, her son was not himself.

She believes he was suffering from depression and thus, had trouble adjusting to life. [ 31 ] Mr. Collins also testified. He explained that his detention in this matter has brought him to change his outlook on life. He does not want to be a career criminal. He wants to have a life and be part of his family. Thus, he took the step to enrol in a music recording program in Montreal. He has been through the selection process and his admission depends on the Court’s sentencing decision. He has the support of his family and of others [21] . [ 32 ] While the Court does not doubt that Mr.

Collins’ mother has the best of intentions, the fact remains that her presence and involvement has not, in the past, refrain Mr. Collins from committing crimes. As for the testimony of Mr. Collins, his expressed desire to change his lifestyle must be taken into consideration in imposing the sentence. That being said, a desire to change, expressed at a sentencing hearing, is quite different from an actual change of behaviour. While Mr. Collins has expressed the desire to walk on the path of rehabilitation, his journey is only beginning. [ 33 ] The fact remains that Mr.

Collins is a previous offender with a lengthy criminal record who has not, in the past, been deterred by his family’s support, the numerous sentences he received, nor the numerous court orders imposed upon him. When released from

detention in December 2018, Mr. Collins did not use that chance to bring significant change to his lifestyle. In short, Mr. Collins still poses a serious risk of reoffending. [ 34 ] In imposing a sentence for the offense under s. 95 Cr. C., the Court must situate both the offense and the offender, Mr. Collins, on the spectrum identified by Justice Doherty. The possession of the weapon by Mr. Collins, in the circumstances of this case, is closer to the true crime end of the spectrum. Mr. Collins did not wrongly believe that he had the right to possess this weapon. This was not a regulatory offense.

It was not an innocent possession. Mr. Collins knew that he was carrying an illegal loaded firearm which he chose to keep readily available for use, in a car, on a busy street in Montreal. Mr. Collins’ behaviour posed a real and immediate danger to the people around him and to the community. His degree of moral culpability is high. [ 35 ] In arguing for a sentence of 27 months on the s. 95 Cr. C. count, the Defence relied on seven cases. Upon reviewing these cases, one must keep in mind that the sentences of 24 months or less were imposed mostly in a situation where the accused had no criminal record [22] .

In the cases R. v. Jean-Baptiste [23] , R. v. Nsiah [24] and R. v. De Gregorio [25] , the accused were sentenced to 25, 30 and 32 months of imprisonment. The facts of these cases differ substantially from Mr. Collins’ case. While Mr. Jean-Baptiste, Mr. Nsiah and Gregorio had priors, they pale in comparison to those of the accused. In addition to this, these cases reflect the presence of mitigating factors that are not present in Mr. Collins’ case, such as a guilty plea. In short, all of these cases must be distinguished from the case of Mr.

Collins. [ 36 ] The facts of the Green [26] and Colangelo [27] cases must also be distinguished from the present matter. The moral culpability of Mr. Collins is higher than that of Mr. Green or Mr. Colangelo. [ 37 ] Taking into account the aggravating factors surrounding the commission of the offense, the profile of Mr. Collins and the occurrence of gun-related crimes in Montreal, the sentence to be imposed must reflect the need for protection of the public, denunciation, as well as general and specific deterrence. These sentencing objectives are of paramount importance in this matter.

Rehabilitation is a factor to consider, but in this case, it plays a lesser role. Thus, the Court imposes a sentence of 40 months of imprisonment to Mr. Collins in relation to the s. 95 Cr. C. offense. [ 38 ] The Court imposes a sentence of 40 months for the s. 94 Cr. C. offense and a sentence of 24 months for the s. 86 Cr. C offense, to run concurrently. As for the breach of probation, the Court imposes a sentence of 6 months of imprisonment to run concurrently, given that this breach was considered as an aggravating factor in imposing the sentence on the s. 95 Cr.

C. offense. [ 39 ] With respect to the breach of weapon prohibition orders, the Court imposes a sentence of 6 months of imprisonment on each count, to run concurrently to one another but consecutively to the sentence imposed on the other count. There is a need for separate punishment regarding these three counts. [ 40 ] Thus, the global sentence imposed upon Mr. Collins is 46 months. Mr. Collins has been in custody since his arrest on June 28, 2019. As of today, this represents 572 days. When taking into account the credit of 1,5 for each day served, the total pre-sentence detention of Mr.

Collins represents 28 months and 8 days, leaving him with 17 months and 22 days to serve. [ 41 ] In order to assist Mr. Collins’ rehabilitation, the Court imposes a probation order for a duration of three years, with a follow-up of two years, at the usual conditions. The probation order will contain a condition to abstain from owning, possessing and carrying a weapon. [ 42 ] In addition, the Court imposes the following orders: • A weapon prohibition order for life, pursuant to s. 109 Cr. C.; • A DNA order pursuant to s. 487.051(3) Cr.

C. (secondary designated offences); and • A forfeiture order regarding the gun, the bullets and the clip, pursuant to s. 491 Cr. C. (

S) Mélanie Hébert, J.C.Q. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Jean-Philippe MacKay Director of Criminal and Penal Prosecution

Me Alexandre Garel Me Günar Dubé Garel Dubé et associés Counsel for the Defence Date of hearing: December 18, 2020