R. v. Kumi, 2023 ONCJ 482

ONTARIO COURT OF JUSTICE CITATION: R. v. Kumi , 2023 ONCJ 482 DATE: 2023 10 27 COURT FILE No.: Central West 998 21 9577 & 21 8687 BETWEEN: HIS MAJESTY THE KING — AND — Jeffrey Kumi Before Justice J. De Filippis Heard on September 1, 2023 Reasons for Judgment released on October 27, 2023 Mr. D. Clarke......................................................................... counsel for the Federal Crown Mr. P. Harris..................................................................... counsel for the Provincial Crown Mr. J.

Couse................................................................................... counsel for the accused De Filippis, J.: INTRODUCTION [ 1 ] After a trial, the offender was found guilty of these offences [1] : • Failure to stop at the scene of an accident. • Possession of a loaded restricted firearm. • Possession of a firearm while prohibited. • Failure to comply with a term of two release orders that he not possess weapons. • Failure to comply with a term of a probation order that he not possess weapons. • Failure to comply with a term of a release order that he not possess drugs referred to in the Controlled Drugs and Substances Act. • Possession of fentanyl. • Possession of cocaine. [ 2 ] On October 22, 2021, there was a minor collision in rush hour traffic in downtown Hamilton.

A person fled on foot from one of the motor vehicles, while carrying objects. The police were called and promptly responded. CCTV cameras from local businesses recorded a person discarding objects while running in a nearby alleyway. A loaded restricted firearm as well as a quantity of fentanyl and cocaine were later recovered from this area. The defendant was arrested in a nearby convenience store.

[ 3 ] The primary issue at trial was identity. I found that the defendant is the person who fled the scene of the accident and discarded the contraband in question. The existence of the prohibition, probation and release orders that form the basis of other charges is not in dispute. There is also no controversy about the nature of the contraband. However, proof of the amount of the illicit drugs was challenged by the Defence. I found that the Crown had failed to prove this fact.

Accordingly, the defendant was found guilty of, and will be sentenced for, the included offences of possession of fentanyl and cocaine, not possession for the purpose of trafficking in those drugs. [ 4 ] These reasons explain why I have concluded that the defendant be sentenced to 4 years and 7 months in addition to presentence custody, for an effective sentence of 7 years and 7 months. EVIDENCE [ 5 ] The defendant provided an affidavit that includes the following assertions: I was born on August 25, 1992, at Etobicoke General Hospital. I grew up in Jamestown, Rexdale. I have three older siblings.

My father was out of the country for much of my childhood and my mother worked at a factory. She did not earn much money. We were poor growing up and so were our neighbours. There was a lot of crime in my neighbourhood.... During a lockdown I am confined to my cell. This means that I have no access to the showers, phones, yard, and visits, including phone calls or visits with my family. Being deprived of speaking to my family was especially hard on me. The prolonged lockdowns were particularly stressful and difficult. I felt anxious, disconnected, and alone.

The harsh conditions of detention created a hostile and stressful environment that often became violent. When we got out of lengthy lockdowns, everyone wanted to use the phone and everyone wanted to shower. There are only 2 phones on the range. The limited resources meant that fights were common. It was a tense and violent atmosphere that made me feel stressed and scared...... There were so many lockdowns that I, and other inmates, participated in a hunger strike in April of 2023. Attached as Exhibit “B” are copies of medical reports confirming my hunger strike.

The lockdowns improved somewhat after the strike was over. [ 6 ] Defence counsel obtained records about the time spent by his client at various detention facilities. The Crown disputes some of the figures, but concedes the defendant faced harsh conditions in lockdown and overcrowded cells. I accept the Defence

summary of these documents, as follows: The defendant spent 503 days at the Hamilton Wentworth Detention Centre, of which 64 days were under lockdown. He spent 155 days at the Central North Detention Centre, of which 72 were under lockdown. He spent 13 days at the Toronto South Detention Centre, of which 11 were under lockdown. Another 9 days were spent at an unknown facility. In the result, the defendant’s presentence custody amounts to 680 days, of which 147 days were under lockdown. [ 7 ] The documents reveal that many of the lockdown days were due to staffing shortages.

Moreover, the defendant spent 124 days in overcrowded cells; that is, with three people in a two-person cell, such that one inmate must sleep on a mattress on the floor, often near the toilet. Notwithstanding these harsh conditions, the defendant successfully completed these programs while in custody; substance use, anger management, supportive relationships, planning discharge, and use of leisure time. [ 8 ] The Defence provided a letter from an organization called Think2wice.

It includes these statements: My name is Zya Brown, and I serve as the Executive Director of Think 2wice, a grassroots community organization dedicated to offering culturally sensitive, trauma-informed services and supports to Black and racialized communities, especially those affected by incarceration, gun violence, and trauma for over 18 years...... I am reaching out to advocate earnestly on behalf of Jeffery Kumi. Jeffery reached out to us and became a participant and volunteer of the Think 2wice Grief/Trauma project in March 2021. His openness although faced with adversity was a breath of fresh air.

Jeffery assisted in informing the T2 Trapped Documentary: A candid, CSC-approved documentary showcasing the lives of eight individuals impacted by gun violence. This film seeks to offer preventative insights for youth on the precipice of gun involvement as well as a teaching tool for service providers..... We are aware of Jeffery’s situation and are prepared to act as a support to him. Upon his release, we have secured a space for him in our TO Wards Peace project where he will receive customized care coordination, case management, culturally relevant, trauma informed supports and access to therapy.

The TO Wards Peace project (TWP) is a community-led model, Rexdale Community Health Centre in partnership with Think 2wicethat focuses on safety planning through an access to a wide range of services.” [ 9 ] The defendant’s sister provided a letter of support. It includes the following statements: Jeffery has always been an upright character in the family and the community ….I understand the seriousness of this matter however, hope the court will show some leniency.... As you are aware my brother has made mistakes that make you guys see him as a bad person in the system.

This hurts my brother a lot because he has made mistakes and tries to better himself but things always draw him down even if he’s trying to better his life from his mistakes. Deep down he truly regrets everything he has been through and wishes he could turn back in time but as we all know time can’t turn back....Jeffery isn’t a bad person, he is just a person who makes mistakes and is ready to start over again and make his family and community proud of him....

As the court is reading my support letter this may not be what you accept but please take in my letter and I also understand his action may Contradict my letter. [ 10 ] The defendant has the following criminal record: • June 18, 2007 (Youth) – Carry Concealed Weapon – probation for 112 months. • June 20, 2007 (Youth) – Fail to Comply with Recognizance and Theft Under – probation for 12 months. • May 5, 2009 (Youth) – Aggravated Assault and Failure to Comply – 80 days custody and 40 days under community supervision, followed by probation for 18 months, and weapons prohibition order. • June 1, 2009 (Youth) – Fail to Comply with Recognizance – probation for 12 months. • December 21, 2011 – First Degree Murder – 6 years custody and 4 years community supervision and weapons prohibition order

• June 11, 2013 – Assault – time served (1 day) • August 13, 2013 – Assault – suspended sentence and probation for 18 months • April 11, 2014 – Assault – time served (12 months) • July 3, 2018 – Possession of Cocaine for the Purpose of Trafficking (12 months jail), Dangerous Driving (30 days consecutive),Obstruct Peace Officer (30 days consecutive), Failure to Comply with Recognizance (30 days consecutive) and Failure to Stop for Police(6 months consecutive) – total sentence: 21 months jail. THE LEGAL PRINCPLES [11] The imposition of sentence is governed by

Part XXIII of the Criminal Code. The following provisions are especially relevant inthis case: 718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing… (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [12] The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousnessof the offence (and its consequences) as well as the moral blameworthiness of the offender; R v Lacasse 2015 SCC 64.

Personalcircumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousnessof the offence: R v Schofield [2019] B.C.J. No. 22 (BCCA). [13] The present case is primarily about the offence of possession of a loaded restricted firearm. In R v Graham, 2018 ONSC 6817,the Court held that (at paragraphs 37-39): There is now considerable guidance in the case law, since the mandatory minimum sentences were struck down in 2013, as to theappropriate range of sentence in these s.95 cases. In R. v. Carrol, 2014 ONSC 2063 (Ont.

S.C.J.), Molloy J. analyzed the effect of Nurand Smickle on the appropriate range of sentence for well-situated first offenders like the two accused in those cases. It will be recalledthat Nur was 19 years old, he had pleaded guilty, he had strong support from his pro-social family, and he had excellent rehabilitativeprospects. Smickle was found posing with a gun while alone in the privacy of an apartment. Both were first offenders. Molloy J. held inR. v.

Carrol, supra that two years less a day to three years was now the appropriate range of sentence in this kind of first offence s.95case involving well situated first offenders. More recently, the Court of Appeal has held that three years to five years is the appropriate range for a first s.95 offence where the useand possession of the gun is associated with criminal activity, such as drug trafficking. In R. v. Marshall (2015), 2015 ONCA 692, 340 O.A.C. 201 (Ont. C.A.) and R. v. Gobire, March 7, 2016, Ontario Court of Appeal, the court upheld a three and a half-year

sentence for Marshall and imposed a three year sentence for Gobire, both of whom committed first s. 95 offences and both of whomwhere young first offenders. Marshall was 23 and Gobire was 21 and Gobire was held to have excellent rehabilitative prospects. Bothaccused were involved in the drug trade and were carrying the guns in association with drug crime. Also see: R. v. Mansingh, 2017ONCA 68 (Ont. C.A.); R. v. Crevier, 2013 ONSC 2630 , [2013] O.J. No. 2257 (Ont. S.C.J.), aff'd (2015), 2015 ONCA 619, 330 C.C.C. (3d) 305 (Ont. C.A.).

In the case of s.95 recidivists, like Graham, MacDonnell, J. analysed the effect of the 2013 post-mandatory minimum sentence cases inR. v. Hector, 2014 ONSC 1970 (Ont. S.C.J.). He noted that in R. v. Charles (2013), 2013 ONCA 681 , 303 C.C.C. (3d) 352(Ont. Page 36 of 124 9 C.A.) and in R. v. Chambers, 2013 ONCA 680 (Ont. C.A.), the Court of Appeal upheld sentences of seven yearsand eight years for s.95 recidivists who had each breached two prior s.109 prohibition orders.

MacDonnell, J. implicitly held that thecases indicate an appropriate total range of six years to nine years for s.95 recidivists who breach s.109 orders, after the 2013 striking-down of the mandatory five-year minimum sentence. More recently, in R. v. Slack (2015), 2015 ONCA 94 , 321 C.C.C. (3d)474 (Ont. C.A.), the Court upheld a total sentence of ten years, made up of eight years for a s.95 recidivist who also received a two yearconsecutive sentence for breach of prohibition orders.

A number of recent cases in this Court have imposed total sentences of eight andnine years for recidivist s.95 offences and breaches of s.109 prohibition orders. See: R. v. Grant, [2005] O.J. No. 4599 (Ont. S.C.J.); R. v.Alexander, 2012 ONSC 6117 , [2012] O.J. No. 5087 (Ont. S.C.J.); R. v. Dunkley, [2014] O.J. No. 3062 (Ont. S.C.J.). [14] A sentence imposed on an offender must consider pretrial detention. This deduction is known as the “Summers Credit.” It mayalso be appropriate to lessen that sentence to account for particularly severe pretrial conditions. This is known as the “Duncan Credit.” [15] In R. v.

Marshall, 2021 ONCA 344, the Court of Appeal for Ontario said the following (at paragraphs 51 to 53): It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The“Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers”credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served byvirtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1.

It is wrong to think of the “Summers” credit as amitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as theseriousness of the offence: R. v. Colt, 2015 BCCA 190. The “Duncan” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account indetermining the appropriate sentence.

Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken intoaccount with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit willbe deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of asentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors. [16] Recently, in R. v.

McEwan, 2023 ONSC 1608, Justice Di Luca, said the following (at paragraphs 98 – 101): In assessing how to measure the impact of the harsh custodial conditions and how to assess whether further mitigation is appropriate, Iam guided by R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344. I note that the 8 impact of harsh custodial conditionsis a mitigating factor on a sentence.

It is not a linear or mathematical credit even though it may be expressed as a quantified figure.Ultimately, where the court considers harsh custodial conditions as a mitigating factor, the degree of mitigation applied must not result inthe imposition of an unfit sentence. I am also guided by cases such as R. v. Persad, 2020 ONSC 188, which highlight the fact that there is a communicative aspect togranting mitigation for harsh custodial conditions…. In this case, Mr.

McEwan was on lockdown for 147 days out of the 315 days he spent in custody at the Central East Correctional Centre.On 93 of those days, the lockdowns were the result of staffing shortages. He was also subject to multi-day lockdowns, including a 25-daylockdown for a COVID outbreak.

I accept that the impact of the lockdowns on inmates awaiting trial is unduly harsh with conditions at times bordering on inhumane.While some institutional lockdowns are an expected part of running a secure facility, where the lockdown ratio is reaching 50% andwhere more than 50% percent of the lockdowns are related to staffing issues, there is a problem. SUBMISISONS [17] The Federal Crown addressed the two counts of possession of illicit drugs as well as the failure to comply with a release order.

Counsel suggested that 30 days in custody for each count, concurrent to each other, and consecutive to any other sentence is appropriate. [18] The Provincial Crown submitted that there be a 6-year sentence for possession of the loaded restricted firearm, 1 yearconsecutive for possession of the firearm while prohibited, and 6 months consecutive for leaving the scene of an accident. Counselsuggested that the remaining breach offences attract a penalty of 60 days, concurrent to the foregoing sentences.

The Provincial Crownemphasized that his position is intended to account for the fact that the defendant was subject to many days in lockdown andovercrowded cells. [19] Defence counsel submitted that the appropriate sentence is one of 6 years, in totality, for all offences. Counsel did not dwell onhow this should be reflected in the various counts. Counsel focused his submissions on the Duncan Credit. It is the Defence positionthat the application of this credit should result in an effective sentence of time served. [20] There is little controversy about the range of sentences for gun crimes as set out in Graham.

Counsel provided me with other

cases in support of the arguments about what is the appropriate total sentence before application of any credits. I will refer to some ofthese cases later. [21] The Provincial Crown anchored his submissions by reference to the gravity of the offence and high moral blameworthiness of thedefendant. To possess a loaded gun during rush hour and to discard it in a place readily accessible to others is extremely serious. Counsel added that, apart from the Duncan Credit, there are few mitigating circumstances. Counsel referenced the defendant’s criminalrecord and described him as a violent and incorrigible recidivist.

In this regard, counsel cautioned against placing weight on the letterfrom the defendant’s sister, describing her as naive. [22] In advocating for this total sentence of 7.5 years, The Provincial Crown noted that the Duncan Credit is not a deduction fromsentence but part of a constellation of factors to be considered in arriving at the right result. Counsel cautioned that applying DuncanCredit in the same manner as the Summers Credit risks devouring the sentence.

He asserted that the suggested sentence for thepossession of the loaded gun “is entirely appropriate given the prior conviction for murder which was committed with a gun” andproperly accounts for the lockdowns and overcrowded cells endured by the defendant. Similarly, the consecutive sentences for the othernoted offences takes into account the complaint about the conditions in jail.

Otherwise, the proper sentences would be higher. [23] Defence counsel acknowledged these aggravating factors; the defendant had a loaded gun in public, while bound by a prohibitionorder, discarded it in a careless manner, and has a serious criminal record.

Counsel noted, however, that the defendant had a difficultchildhood; the defendant’s father was absent from his life, his mother worked in a factory, and he grew up in a poor, high crime, area. [24] Defence counsel rejected the Crown assertion that the defendant’s sister is naïve and asserted that she simply wants the Court toknow that her brother is more than his criminal record.

In this regard, counsel suggested there is reason to be optimistic aboutrehabilitation; the defendant completed several counselling programs while in custody and will be supported, after release, by the Think2wice organization. [25] Defence counsel argued that with these aggravating and mitigating factors, “6 years is right – it is the longest the defendant hasserved as an adult”. Counsel emphasized that the “biggest [additional] mitigating factor” to be considered is the harsh conditions thedefendant endured in presentence custody.

The Defence seeks a Duncan credit of 1.5:1 for a total enhanced credit of 3:1. [26] The Defence submitted if the appropriate total sentence is 6 years (72 months) and the application for the enhanced credit isaccepted, the defendant will be in a ‘time served’ position on the date of these reasons.

This is evident by the various calculations for thecombined credits as set out in the Defence material: • Actual time spent in custody as of October 27, 2023 - 737 days (24.5 months) • With additional Summers credit (1.5:1): 1105 days (36 months) • With additional Duncan Credit of 0.5 day (2:1): 1446 days (48.2 months) • With additional Duncan Credit of 1 day (2.5:1): 1786 days (59.5 months) • With additional Duncan Credit of 1.5 days (3:1) 2126 days (70.2 months) [27] The Defence request for a Duncan Credit of 1.5:1 is based on the assertion that the Ministry of the Solicitor General does notstaff its remand facilities adequately and that when an institution is confronted with staffing shortages, inmates pay the price, throughlockdowns.

Defence Counsel described the conditions as follows: Lockdowns are horrific. Inmates are confined to a shared cell that is 7 feet wide by 15 feet long. They cannot access showers, phone oryard. They are completely cut off from the outside world: no contact with family members or legal counsel and no fresh air. Meals areprovided by tray through a slot in the cell. The longer the lockdown, the worse it is. The long periods of confinement combined with thescarcity of amenities creates a tense environment in which violence is common. This causes added anxiety and fear for the inmates.Lockdowns are endemic.

Judges have expressed disapprobation of the conditions at each of the institutions in which the Applicantresided. [28] Defence counsel noted that while the Court of Appeal for Ontario has cautioned against treating the Duncan Credit as astraightforward statutory deduction like the Summers Credit, it did not disapprove of quantifying the mitigation in the form of a specificnumber of days. Counsel added that the Court of Appeal specifically encouraged counsel to come to an agreement regarding the numberof days where possible.

As such, “It is entirely consistent with Marshall to quantify the mitigation in the form of a specific number ofdays”. In this regard, counsel noted the decision in R v Persad 2020 ONSC 188 , in which the Court granted an enhanced creditof 3:1 to account for the “deplorable conditions” at the Toronto South Detention Centre and to send a message to the Ministry of theSolicitor General that the state of affairs at its remand facilities cannot be allowed to continue (that is, the communicative function ofsentencing).

CONCLUSION [29] The Federal Crown suggested that 1 month in jail, consecutive to other sentences is appropriate for the possession of the illicitdrugs. I would impose such a sentence for the related breach of Court order. The positions taken by Defence counsel and ProvincialCrown show that they agree that the seriousness of the main offences warrant a significant period of custody. Where they

part companyis the impact of the Duncan Credit. The Provincial Crown claims his position accounts for that. The Defence argues that it warrants afurther deduction. [30] I cannot accept the Defence argument. It inappropriately subordinates denunciation and deterrence to the Duncan Credit andoverwhelms the sentence. I conclude that the position taken by the Provincial Crown is correct; it is a measured response to the offenceand offender. It properly reflects the aggravating and mitigating factors. In coming to this conclusion, I accept that the defendant faced

unduly harsh conditions in presentence custody. I also consider that he has family and community support that can assist in hisrehabilitation. [31] In applying the principle of proportionality, the seriousness of gun offences must be fully appreciated. This point was stated wellby Justice Molloy in R v Ferrigon 2007 CarswellOnt 3072 (ONSC): Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous.

A person who loads ahandgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person.Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot anotherhuman being with it. Otherwise, there would be no need to have loaded it. That person is dangerous.

He is dangerous to those withwhom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of hiscommunity; he is dangerous to innocent bystanders, including children, who may be killed or maimed by stray bullets. And equallyimportantly, he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled — away of life that respects the rule of law to ensure the peace and safety of those who live here. [32] The Court of Appeal for Ontario has upheld sentences that reflect the gravity of this crime.

In R v Owusu 2019 ONCA712 , it held as follows: The appellant received a six-year global sentence less 18 months pre-sentence custody credited at 1.5:1, leaving three years and ninemonths remaining to be served. The Crown sought seven years, while the defence sought five years.

The appellant was only 19 years oldat the time of the offence and had made efforts to further his education while in custody. 18 Most notably, however, the appellant hadbeen found guilty under the Youth Criminal Justice Act, S.C. 2002, c. 1, for possession of a loaded firearm just ten months before thedate of the offences for which he was to be sentenced. The trial judge noted that the appellant endangered himself, the other occupants ofthe car, the police, and the public by carrying the concealed handgun.

Page 53 of 124 3 19 The appellant has not identified any error onthe part of the sentencing judge and the sentence was fit. [33] The defendant addressed the Court. He said he is sorry for what he had done and commented on the difficult conditions in jail. He concluded by stating that “this is not the life I want. I want to take a heavy equipment course and provide for me and my family”. Iaccept the sincerity of the defendant’s remarks. I understand the potential for rehabilitation. [34] I appreciate letters of support and take them seriously in arriving at a decision.

However, I ignore the letter provided by thedefendant's sister as it is obvious that her love for her brother has blinded her to the man he has become. It cannot be said that thedefendant has always been a man of “upright character. Indeed, he has been a very “bad person” and his actions, as demonstrated by thepast and present offences, cannot be dismissed as “mistakes”. [35] The defendant is 31 years old. He was first convicted of an offence at the age of 15. He has been in trouble with the law sincethat time and has been in custody for much of his teenage and adult years.

There are no meaningful gaps in the criminal record. Theother convictions include four assaults, possession of cocaine for the purpose of trafficking, violation of court orders, dangerous drivingand flight from police. These offences preceded and followed that of first-degree murder (committed as a youth). The present offenceswere committed one year after the defendant was found guilty of numerous crimes and sentenced to jail. [36] The defendant’s moral blameworthiness is high. He possessed a loaded handgun, while prohibited from doing so, and in breachof other court orders.

He discarded the weapon in a parking lot in leaving the scene of an accident and in flight from police. He was alsoin possession of illicit drugs in violation of court orders. All this occurred in late afternoon in downtown Hamilton. The offence offailing to remain at the scene of an accident reflects a different societal interest – the duty to stop and assist – and, although the collisionwas minor, the manner of the flight from police and the prior related conviction is aggravating. [37] Rehabilitation remains important.

However, the primary sentencing factors are denunciation and deterrence (both specific andgeneral). In R v M. (C.A.) 1996 SCC 230 at para 81, the Supreme Court of Canada held as follows: Retribution, as well, should be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicialsentence properly reflect the moral blameworthiness of that particular offender. The objective of denunciation mandates that a sentenceshould also communicate society's condemnation of that particular offender's conduct.

In short, a sentence with a denunciatory elementrepresents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code ofvalues as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p.77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can showthis is by the sentences they pass".

The relevance of both retribution and denunciation as goals of sentencing underscores that ourcriminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasingthe cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence whichexpresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negativeconsequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set ofcommunal values shared by all Canadians as expressed by the Criminal Code. [38] For the reasons explained by Defence counsel, this case is one in which both the Summers and Duncan Credits apply. As alreadynoted, I agree that the position advanced by the Provincial Crown properly accounts for the Duncan Credit.

There is no controversyabout the application of the Summers Credit. [39] The defendant is sentenced to 4 years and 7 months in jail in addition to presentence custody, for an effective sentence of 7 yearsand 7 months. The details are as follows: • Possession of a loaded restricted firearm: 6 years, less 36 months presentence custody (i.e., the Summers Credit – 36 months at1.5:1) – which means an additional sentence of 3 years. • Possession of a firearm while prohibited: 1-year consecutive.

• Failure to stop at the scene of an accident: 6 months consecutive. • Failure to comply with a term of a release order that he not possess drugs referred to in the Controlled Drugs and Substances Act : 1 month consecutive. • Failure to comply with a term of two release orders that he not possess weapons: 2 months concurrent. • Failure to comply with a term of a probation order that he not possess weapons: 2 months concurrent. • Possession of fentanyl: 1 month concurrent. • Possession of cocaine: 1 month concurrent. [ 40 ] I impose the following ancillary orders: The defendant will provide a sample of his DNA and be bound by a weapons prohibition pursuant to

section 109 of the Code for life. The handgun and ammunition seized in this case will be forfeited to the Crown. I agree with the defendant’s request his cell phone and clothing be returned to him. I decline to impose the driving prohibition requested by the Crown. Released: October 27, 2023 Signed: Justice J. De Filippis