r v. CLIFTON MAXWELL, 2023 QCCQ 1556

R. c. Maxwell 2023 QCCQ 1556 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-223358-216 500-01-223354-215 DATE: April 3, 2023 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v.

CLIFTON MAXWELL Accused ______________________________________________________________________ SENTENCING JUDGMENT ______________________________________________________________________ OVERVIEW [ 1 ] On the morning of September 8, 2021, police Officers Plouffe and Hade were on patrol. At approximately 7:35 a.m., while they were stopped at a red light, they saw a Jaguar leaving the parking lot of a motel. They investigated the Jaguar’s licence plate in police databases.

The investigation revealed that the Jaguar was registered to a rental company but despite additional inquiries, the officers could neither identify the potential driver of the Jaguar nor confirm that he had a valid driver’s licence. At 7:40 a.m., they stopped the Jaguar to verify if the driver had a valid driver’s licence. [ 2 ] Darryl Reddick, the driver of the Jaguar, had a learner’s licence and thus was not allowed to drive without being accompanied by someone who had a valid driver’s licence.

Considering the situation, Officer Hade asked the passenger, who would later be identified as Clifton Maxwell if he had a valid driver’s licence. Maxwell [1] said that he had a valid Ontario driver’s licence but mentioned that he did not have identification documents with him. Officer Hade then asked Maxwell if he would agree to provide his name so that the information regarding his driver’s licence could be verified. Maxwell agreed. He informed Officer Hade that his name was Marcus Smith, provided a date of birth and an address in Ontario.

Officer Hade noted the information, repeated it to Maxwell who confirmed that it was right. Officer Hade then cautioned Maxwell, telling him that providing false information could lead to a charge of obstruction and Maxwell said that he understood. [ 3 ] Officers Plouffe and Hade tried to confirm that Marcus Smith had a valid driver’s licence but were unable to do so. They eventually acquired reasonable grounds to believe that Marcus Smith was a false name. At approximately 8:00 a.m.

Officer Hade arrested Maxwell for obstructing a police officer in the execution of his duties. [ 4 ] As Officers Plouffe and Hade could not confirm if Maxwell had a valid driver’s licence, they decided to tow and impound the Jaguar. When the tow truck arrived, Officer Plouffe performed an inventory search of the Jaguar and found a loaded prohibited firearm, in a bag. The firearm was a handgun and was equipped with a high-capacity magazine, which is a prohibited device [2] . Reddick and Maxwell were arrested for possession of a firearm. Maxwell was brought to the police station and searched.

The search revealed that he had a ring which was a brass knuckle, a prohibited weapon, without holding a license. [ 5 ] Maxwell and Reddick stood trial jointly, in relation to the following two offences:

i) possession of a loaded prohibited firearm without being the holder of an authorization; and ii) being the occupants of a motor vehicle in which they knew there was a loaded prohibited firearm. Maxwell also stood trial in relation to other offences:

i) having resisted or willfully obstructed a peace officer in the execution of his duty; ii) possessing a prohibited weapon, that is a brass knuckle; and iii) two counts of possessing a prohibited firearm/ prohibited device, contrary to Court orders rendered pursuant to the Criminal Code . At the end of the trial, the Court declared Maxwell guilty of the six offences described above [3] . As for Reddick, he was acquitted. [ 6 ] The Court must now sentence Maxwell.

The Crown is seeking a global sentence of 66 months (five and a half years) of imprisonment while the Defence is asking for a global sentence of 30 months (two and a half years) of imprisonment. [ 7 ] For the reasons explained in this decision, the Court imposes a global sentence of 42 months (three years and six months) of imprisonment upon Maxwell. ANALYSIS

General sentencing principles [ 8 ] 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 [4] .

This purpose is met by imposing a sentence that meets the following 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 [5] . [ 9 ] A sentence must always be proportionate to the gravity of the offence and the degree of responsibility of the offender. 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 [6] . [ 10 ] A sentence must also respect the parity principle according to which similar offenders who commit similar offences in similar circumstances should receive similar sentences [7] . The system of sentencing ranges and categories aims at achieving parity. [ 11 ] While 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 Courts will calibrate the demands of proportionality by referring to the sentences imposed in similar cases [8] . [ 12 ] 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 emphasize the need to denounce the unlawful conduct and to deter anyone else from doing the same thing [9] .

While the prevalence of a crime is one factor to consider, it is not the only one. Thus, in considering this factor, Courts should keep in mind the need to individualize the sentence [10] . [ 13 ] The determination of a just and appropriate sentence is a highly individualized exercise. It requires the sentencing judge to balance sentencing principles and objectives while considering the circumstances of both the offence 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 offences [ 14 ] Offences relating to firearms are serious. Firearms are dangerous, especially handguns. Loaded handguns are even more dangerous, as they are ready for use. Common sense and human experience suggest that the illicit possession of a handgun serves two purposes: to threaten or to inflict serious bodily harm or death. 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 [11] .

Therefore, 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 [12] and criminal prohibitions included in the Criminal Code [13] . [ 15 ] One of these prohibitions is found at s. 95 of the Code . 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 harmed and before criminal activity occurs or is attempted [14] . [ 16 ] As explained by Justice Doherty of the Ontario Court of Appeal in R. v . Nur [15] , the scope of s. 95 of the Code covers a wide range of potential offences.

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 authorization and which he intends to use as he sees fit [16] . [ 17 ] Thus, in imposing a sentence for an offence under s. 95 of the Code , Courts must situate the offence 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 ] With that said, Courts should emphasize the need for deterrence and for denunciation when sentencing firearm-related offences provided by s. 95 of the Code [17] .

As Chief Justice McLachlin noted in R. v . Nur [18] , most offences caught by s. 95 of the Code may well merit a sentence of three years of imprisonment or more. Prevalence of gun-related crimes in Montreal [ 19 ] In recent decisions, Quebec Court judges have recognized that gun-related crimes are rising in Montreal [19] . The Court of Appeal recently confirmed this finding [20] . [ 20 ] While the prevalence of gun-related crimes in Montreal heightens the need for denunciation and deterrence, it is only one of the factors that the Court must consider when imposing a sentence.

The principles of proportionality and individualization must not be eclipsed by this factor [21] . Quebec sentencing range for offences pursuant to s. 95 of the Code [ 21 ] In R. v . Green [22] , the Court of Appeal confirmed Green’s sentence of 24 months of imprisonment. The Court set a sentencing range of 18 to 36 months of imprisonment for cases similar to Green, a 19-year-old man without priors, arrested on the street with a

loaded prohibited firearm found in the back pocket of his pants. The Court added that sentences of 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 Green’s case. [ 22 ] In R. v . Colangelo [23] , the Quebec Court of Appeal reiterated the sentencing range of 18 to 36 months of imprisonment for cases in which the offence and offender fall within the middle of the spectrum identified by Justice Doherty and explained hereinbefore.

Colangelo, who had pled guilty to various offences relating to the possession of two semi-automatic rifles, a magazine that was a prohibited device and ammunition, was sentenced to two years less a day of imprisonment. The rifles, the magazine and the ammunition 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 Colangelo ’s house. When arrested, Colangelo was under conditions not to possess firearms.

He had various priors, including two offences relating to firearms but those offences dated back to more than 10 years. [ 23 ] It is worth mentioning that in R. v . Dallaire [24] , the Court of Appeal confirmed a seven-year sentence, even though the sentence was outside the sentencing range that it had set in the Green and Colangelo cases.

In doing so, the Court made the following comment: “ Il faut toutefois se rappeler que, dans l’arrêt Nur , une peine de 40 mois d’emprisonnement ainsi qu’une autre peine de 7 ans d’emprisonnement ont été imposées à des délinquants qui se trouvaient en possession d’une arme à feu prohibée chargée, et que la Cour d’appel de l’Alberta a su confirmer une peine de 5 ans d’emprisonnement en semblable matière [25] ”. [ 24 ] In short, the sentencing range of 18 to 36 months of imprisonment set by the Court of Appeal in the Green and Colangelo cases still applies when factors tend to attenuate the gravity of the offence or the moral blameworthiness of the offender [26] . [ 25 ] With that said, it is important to underline that sentencing ranges are used to ensure the parity principle.

They serve as guides for sentencing. They should not, however, be construed as a straitjacket [27] .

Principles applied to Maxwell [ 26 ] The objective gravity of the various offences committed by Maxwell is as follows: • The offence of resisting or willfully obstructing a peace officer in the execution of his duties [28] is punishable by a maximum of two years of imprisonment. • The offence of possessing a loaded prohibited firearm [29] and the offence of possessing a loaded prohibited firearm / or prohibited device in a motor vehicle [30] are both punishable by a maximum of ten years of imprisonment. • The offence of possessing a prohibited weapon, the brass knuckle [31] , is punishable by a maximum of five years of imprisonment. • The offence of possessing a prohibited firearm contrary to Court orders rendered pursuant to the Code [32] , is also punishable by a maximum imprisonment of ten years. [ 27 ] The objective gravity of the two offences that relate to the possession of a loaded prohibited firearm is serious.

The objective gravity of the offence that relate to the breach of weapons prohibition orders is also serious. It is worth mentioning that the breach of weapons prohibition is the only breach-related offence punishable by an imprisonment of more than two years when prosecuted by indictment. This is an indication of the objective gravity of breaching a Court-imposed weapon prohibition order .

As for the objective gravity of the offence of resisting or willfully obstructing a peace officer in the execution of his duties and the offence of possessing a prohibited weapon (the brass knuckle), it is less serious than that of the other offences. [ 28 ] The circumstances surrounding the commission of these offences by Maxwell were analyzed in the Court’s decision on the Motion to exclude evidence dated December 1, 2022, and in the Court’s verbal decision on the verdict rendered on December 15, 2022.

They can be summarized as follows: • Maxwell was carrying a loaded handgun with an oversized capacity magazine. • The handgun was concealed in a bag.

The bag was in a car in which Maxwell was the passenger. • The car was stopped by Officers Plouffe and Hade on a public street, close to a highway, early in the morning, at 7:40 a.m ., on September 8, 2021. • While Maxwell was calm and cooperative with Officers Plouffe and Hade, he provided a false name to Officer Hade. • Maxwell was bound by two lifetime Court-imposed weapons prohibition orders [33] . [ 29 ] The first four circumstances mentioned above are not aggravating per se , as they are elements of the various offences for which the Court is now sentencing Maxwell, with one exception: the fact that Maxwell was in possession of an oversized capacity magazine is an aggravating circumstance in relation to the offence provided for by s. 95 of the Code.

As for the fifth circumstance, the fact that Maxwell was bound by two lifetime weapons prohibition orders, as opposed to one, is an aggravating factor. The fact that Maxwell has prior convictions, including a conviction for possessing a firearm knowing that its possession is unauthorized pursuant to s. 92 (1) (3) of

the Code , is also an aggravating factor, albeit of limited impact, for the reasons explained hereinafter. [ 30 ] There are no mitigating circumstances surrounding the commission of the offences by Maxwell. In this regard, Maxwell testified that he was carrying the handgun for protection because he was scared for his life. He explained that two of his friends were murdered and one of his relatives, a cousin, was shot at while being in her car. The fact that Maxwell armed himself for self-protection is not a mitigating circumstance. As mentioned in the case R. v.

Powers [34] , giving effect to such an explanation would send “the perverse message that Courts are willing to entertain various reasons offered for carrying loaded handguns in public places. This could only encourage more people to consider arming themselves, which would in turn beget further gun violence. Thus, the need to emphasize general deterrence, denunciation and public protection cannot be diluted,” [35] by such a claim. [ 31 ] As for the circumstances relating to Maxwell, they are as follows: • Maxwell is 42 years old. • His youth criminal record begins in 1995, when he was fourteen years old.

It shows convictions for possession of stolen property, assault with a weapon and sexual assault [36] . • Shortly after he turned eighteen, Maxwell was convicted twice for resisting or willfully obstructing a peace officer in the execution of his duties [37] . He was sentenced to a fine and received a probation order on each occasion. In 2005, 2007 and 2008, he was also convicted for resisting or willfully obstructing a peace officer in the execution of his duties and was sentenced to a fine on these three occasions [38] .

He also received a probation order in 2005 and 2007. • In 2006, Maxwell was convicted of two offences: (

i) breaking and entering; and (ii) disguise with intent. Considering three months of preventive custody, Maxwell received a suspended sentence with a three-year probation order. • A few months later, he was convicted for possessing a firearm knowing that its possession is unauthorized. Considering one month and 15 days of preventive custody, Maxwell received a sentence of nine months of imprisonment with a probation order for two years.

On the same date, he was also convicted for breaching his release conditions and received a sentence of 15 days of imprisonment. • In 2010, Maxwell was convicted for material benefit from trafficking. Considering 372 days of preventive custody, he was sentenced to a three-year probation order and a lifetime weapons prohibition order [39] . At the same time, Maxwell was also convicted of a simple possession of drugs and of breaching his release conditions.

He received a sentence of one day of imprisonment for these two offences. • In 2011 Maxwell was convicted for uttering a threat and received a fine with a two-year probation. In 2011 and 2013, he was convicted for an assault. In 2011 he received a fine and a probation order while in 2013, he received a probation order [40] . • In 2015, Maxwell was convicted of various offences: breaching the conditions of his release; identity fraud; criminal harassment; uttering a threat and a mischief. He received a global sentence of six months of imprisonment as well as a one-year probation order.

A lifetime weapons prohibition order was also imposed [41] . When he testified, Maxwell explained that the offences for which he was convicted in 2015 occurred well before that year. In 2015, he decided to turn himself in because he had outstanding warrants. • When asked about his priors, Maxwell explained he was young and that he grew up in a drug-infested neighborhood. He did not deny having had ties to a gang but stated that this was a long time ago. He has stayed out of trouble since his last convictions in 2015. • In 2021, when the offences occurred, he was working in construction, removing junk.

He was also taking care of his six children. His mother, confirmed that Maxwell was working, taking care of his family, and staying out of trouble in 2021. • Maxwell regrets his actions, which led to his arrest in September 2021. • When he gets out of jail, Maxwell will live at his mother’s house. This arrangement was confirmed by his mother. Maxwell wants to find a job as a cook, maybe as a personal chef. He wants to take care of his children, and he intends on staying out of trouble. • Maxwell has worked with DESTA since October 2021, creating a podcast series regarding systemic racism and the need for change.

It is worth mentioning that DESTA offers employability training and educational programs as well as the training necessary to reintegrated society. As such, DESTA is confident that it can offer Maxwell the tools, guidance, and structure necessary to support his rehabilitation and reintegration into society [42] . [ 32 ] In short, while Maxwell has priors, there is a six-year gap between his last convictions and the offences relating to this matter. This gap mitigates the weight of his priors and tends to confirm that Maxwell can stay out of trouble, as he has done for about six years.

While in detention, Maxwell got involved with DESTA. He has a plan to facilitate his reintegration into society. He has support to help him. He can count on his family and on DESTA. [ 33 ] In imposing a sentence for the offence under s. 95 of the Code , the Court must situate both the offence and the offender on the spectrum of guilt. The possession of a handgun, with an overcapacity magazine, concealed in a bag, in a car, in Montreal, is closer to the true crime end of the spectrum. Maxwell did not wrongly believe that he had the right to possess a handgun.

He made the conscientious decision to buy and carry the loaded handgun. Maxwell’s behaviour posed a real and immediate danger. Considering the circumstances relating to the offences and the occurrence of gun-related crimes in Montreal, the sentence to be imposed upon Maxwell must protect the public from the behaviour he adopted.

Thus, the sentence must meet the sentencing objectives of denunciation, as well as general and specific deterrence. [ 34 ] With that said, Maxwell’s personal circumstances, including the six-year gap in his priors and his involvement with DESTA show that appropriate consideration must also be given to the objective of rehabilitation. [ 35 ] Considering the foregoing, the Court imposes a sentence of 36 months of imprisonment to Maxwell in relation to the offence of

possessing a loaded prohibited firearm [43] . The Court imposes a sentence of 24 months of imprisonment in relation to the offence of possessing a loaded prohibited firearm and / or prohibited device in a motor vehicle [44] , to run concurrently with the 36-month sentence imposed above. [ 36 ] The Court imposes a sentence of three months of imprisonment for the offence of resisting or willfully obstructing a peace officer in the execution of his duties [45] and sentence of three months of imprisonment for the offence of possessing a prohibited weapon, the brass knuckle [46] .

Both sentences are to run concurrently with the 36-month sentence imposed above. [ 37 ] The Court imposes a sentence of six months of imprisonment in relation to the offence of possessing a prohibited firearm, contrary to Court orders rendered pursuant to the Code [47] , to run consecutively to the 36-month sentence imposed above. There is a need for separate punishment regarding this count [48] . [ 38 ] Thus, the global sentence imposed upon Maxwell is of 42 months of imprisonment, a global sentence which is fit, considering the circumstances of this case. Maxwell has been detained since September 8, 2021.

This represents a preventive custody of 18 months and 27 days. Considering the credit of one and a half day per day served, the total preventive custody of Maxwell amounts to 28 months and 11 days. This leaves Maxwell with 13 months and 19 days to serve, as of today. [ 39 ] To assist Maxwell’s rehabilitation, the Court imposes a probation order for 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 weapons. [ 40 ] The Court imposes upon Maxwell a mandatory prohibition order pursuant to s. 109 (3) of the Code . As a result, the Court prohibits Maxwell from possessing any firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition and explosive substances for life. [ 41 ] At the request of the prosecution, the Court authorizes the taking of samples of bodily substances from Maxwell, pursuant to s. 487.051 (3) of the Code .

The Court is satisfied that this order is in the best interests of the administration of justice considering Maxwell’s priors, the nature of the offences for which he is now being sentenced, the circumstances surrounding these offences and the limited impact that this order has on Maxwell’s privacy.

CONCLUSION For these reasons, the court: IMPOSES in relation to count 2 in file 500-01-223358-216 a sentence of 36 months; IMPOSES in relation to count 3 in file 500-01-223358-216 a sentence of 24 months, to be served concurrently to the sentence of 36 months imposed above; IMPOSES in relation to count 1 in file 500-01-223358-216 a sentence of 3 months, to be served concurrently to the sentence of 36 months imposed above; IMPOSES in relation to count 4 in file 500-01-223358-216 a sentence of 3 months, to be served concurrently to the sentence of 36 months imposed above; IMPOSES in relation to count 1 in file 500-01-223354-215 a sentence of 6 months, to be served consecutively to the 36-month sentence imposed above.

IMPOSES a probation order for 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 weapons.

In addition, the court makes the following orders: AUTHORIZES the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis, pursuant to s. 487.51 (3) of the Code ; PROHIBITS Maxwell from possessing any firearms, cross-bows, prohibited weapons, restricted weapons, prohibited devices, ammunition and explosive substances for life , pursuant to s. 109 (3) of the Code ; __________________________________ MÉLANIE HÉBERT, J.C.Q.

Me Jean-Philippe MacKay Director of Criminal and Penal Prosecutions For the Prosecutor Me Patrick Davis For the Accused Hearing date : March 23, 2023