R. v. Ashley, 2011 ONCJ 2

Citation: R. v. Ashley, 2011 ONCJ 2 ONTARIO COURT OF JUSTICE BETWEEN: ) ) M. PecknoldHER MAJESTY THE QUEEN ) for the Crown ) ) — AND — CHEVER ASHLEY ) ) E.

Thomas ) for the defendant ) ) ) ) ) ) lipson J.: REASONS FOR SENTENCE [1] On December 21, 2010 the court convicted Chever Ashley of the following offences: unauthorized possession of afirearm, contrary to section 91(1)(a); possession of a loaded restricted firearm, contrary to section 95(1); careless storage of a firearm,contrary to section 86(3) possession of a firearm knowing its possession is unauthorized, contrary to section 92(1), and possession of aweapon for a purpose dangerous to the public peace, contrary to section 88(1) of the Criminal Code. [2] At the time of these offences, Mr.

Ashley was living with his grandmother , Olga Gayle, in apartment 912 at 7Glamorgan Avenue in Scarborough. At approximately 10 a.m. on Monday August 3, 2009, her grandson was taking a shower. While hergrandson was in the shower, Ms. Gayle went into the bathroom and saw Mr. Ashley’s jean shorts on the floor. She also observed ahandgun tucked into one of the pockets. She called 911 for police assistance. Ms. Gayle left the front door unlocked for the police.Minutes later armed Toronto Police Services officers attended at the apartment.

Officers entered the bathroom and seized the firearm, aloaded 40 calibre Hi-Point semi automatic handgun. The gun’s magazine contained five rounds of live ammunition. Police arrested Mr.Ashley. Following his arrest, Mr. Ashley was transported to 41 Division. Detective Ecklund interviewed Mr. Ashley for approximatelyone and half hours. That interview was videotaped. During the interview, Mr. Ashley admitted possession of the firearm. He describedhow he came into possession of the gun in April or May 2009 and why he continued to possess the gun until his arrest. [3] Counsel for the Crown and Mr.

Ashley agreed that a pre-sentence report was not necessary in this case. Biographicalinformation was provided through counsel’s submissions. As well Mr. Ashley spoke in detail about his background during thevideotaped statement introduced into evidence at trial. [4] Mr. Ashley was 18 years of age at the time of these offences. He had no criminal record or outstanding charges. He wasresiding with his grandmother who is his only family in this area. He has a grade ten education. He has two siblings who reside inJamaica. The accused spent his early years in Kingston Jamaica.

He moved to Canada in 2005 when he was 14 and is a landedimmigrant. Given that he faces statutory minimum sentence of at least three years, it is likely he will be deported to Jamaica without anyright to appeal a deportation order. The accused told Detective Ecklund that before he came to Canada, his mother was murdered inJamaica and an uncle decided to bring Mr. Ashley to this country. It would appear from the accused’s statement that Mr. Ashley grew upin a violence plagued environment in Kingston. Upon his release from custody the accused wants to continue his education. At the timeof the offence, Mr.

Ashley was not working and his grandmother was supporting him. [5] The Crown submits that these offences require a sentence of at least five years. Counsel for the accused submits that theminimum mandatory sentence of three years is sufficient in this case. [6] In R. v Morrissey 2000 SCC 39 , [2000] S.C.J.

No. 39 (S.C.C.), Arbour J. described the appropriate approach todetermining a fit sentence in firearm offences with statutory minimum sentence at para.75: To the extent possible, mandatory minimum sentences must be read consistently with the general principles of sentencing expressed, inparticular, in ss. 718, 718.1 and 718.2 of the Criminal Code: Wust (S.C.C.), supra, at para. 22.

By fixing a minimum sentence,particularly when the minimum is still just a fraction of the maximum penalty applicable to the offence, Parliament has not repudiatedcompletely the principle of proportionality and the requirement, expressed in s. 718.2(b), that a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances.

Therefore, in my view, the mandatory minimumsentences for firearms-related offences must act as an inflationary floor, setting a new minimum punishment applicable to the so-called"best" offender whose conduct is caught by these provisions. The mandatory minimum must not become the standard sentence imposedon all but the very worst offender who has committed the offence in the very worst circumstances. The latter approach would not onlydefeat the intention of Parliament in enacting this particular legislation, but also offend against the general principles of sentencing

designed to promote a just and fair sentencing regime and thereby advance the purposes of imposing criminal sanctions. [7] Mr. Ashley does not qualify as a “best offender” whose conduct is caught by these provisions because of severalaggravating factors. This is not a case of an accused momentarily holding a firearm for someone else. On August 3, 2009, the date of hisarrest, he admitted having had possession of the gun for some three to four months. The gun was loaded with five rounds of liveammunition when his grandmother found it in a pocket of Mr. Ashley’s shorts lying on the bathroom floor.

This presented a potentiallyhazardous situation for Ms. Gayle. Her justified alarm caused her to call 911 and ask for police assistance. In his statement to DetectiveEcklund, Mr. Ashley said that his grandmother believed that he had the gun to harm her. When Mr. Ashley addressed the court prior tosentencing, he apologized to her for placing her in that position. In his lengthy videotaped interview with Detective Ecklund, Mr Ashleyaccepted responsibility for possessing the gun and was prepared to face the consequences. Of real concern is the lack of regret on Mr.Ashley’s part for possessing the gun.

Furthermore Mr. Ashley told the detective that he was prepared to shoot any of the individuals hebelieved was involved in his mother’s homicide years earlier in Jamaica if he encountered them in Toronto. He also told DetectiveEcklund that he had taken the gun into the community on weekends when visiting a friend because he didn’t want his grandmother tofind it. [8] In determining an appropriate sentence I also take into account the mitigating factors. The accused is a youthful firstoffender. He was 18 when he committed these offences and is presently 19 years of age.

He has spent approximately 17 months of pre-trial custody. Counsel agree that he should be given credit on a 2:1 basis. While this was not a guilty plea, Mr. Ashley elected trial in theOntario Court of Justice without the benefit of a preliminary inquiry. In doing so, he spared his grandmother from having to testify twicein this case. [9] The offences here are serious. An individual who possesses a loaded handgun puts the community at grave risk. It isimpossible to conceive of an innocent purpose for Mr. Ashley being in possession of a loaded semi-automatic handgun.

This sentencemust take into account the accused’s age and lack of prior record. However, it is important to emphasize that the paramount aim ofsentencing in a case such as this is the protection of the public. Therefore the key objectives of this sentence must be societaldenunciation of firearm-related offences, the specific deterrence of Mr. Ashley and general deterrence of other like-minded criminals. As was said by Armstrong J.A. in R. v. Danvers, (ON CA), [2005] O.J.

No 3532 at para. 78: There is no question that our courts have to address the principles of denunciation and deterrence for gun-related crimes in the strongestpossible terms. The possession and use of illegal handguns in the Greater Toronto area is a cause for major concern in the communityand must be addressed. [10] He also stated at paragraph 77: Only the imposition of exemplary sentences will serve to deter criminals from arming themselves with handguns. [11] There is no evidence that Mr.

Ashley used the gun to commit any offence or that this firearm is linked to other crimes.Nevertheless, denunciation and deterrence remain very important sentencing objectives. Having considered the relevant aggravating andmitigating factors as well as the necessary sentencing objectives, I am of the view that a total sentence of four years is appropriate. Theaccused has served the equivalent of a 34 month sentence for his 17 months of pre-trial custody, he is sentenced to a further 14 monthsconcurrent on each of the charges.

In addition he will be placed on probation for two years with the following terms: • Report not less than once a month in person to a probation officer • Reside at an address approved of by your probation officer. • Not to possess or carry any weapons as defined by the Criminal Code. • Participate in such programs and counselling as may be recommended by your probation officer • Attend school or make reasonable efforts to find and maintain employment In addition, I order the forfeiture of the handgun and ammunition seized in this case. I also impose two orders pursuant to s. 109of the Criminal Code.

There will be an order prohibiting Mr. Ashley for life from possessing any prohibited firearm, restrictive firearms,prohibited weapons, prohibited devices and prohibited ammunition. He will also be subject to a 10 year prohibition with respect to otherfirearms, restricted weapons, cross-bows, ammunition and explosive substances. There will also be a D.N.A. order. Released: January 5, 2011 Justice T. Lipson