R. v. Morant, 2013 ONSC 1969

CITATION : R. v. Morant, 2013 ONSC 1969 COURT FILE NO.: 12-50000446-0000 DATE: 20130501 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN - and - NADIR MORANT ) ) ) ) ) ) ) ) ) ) ) ) ) ) Rob Kenny , for the Crown Lydia Riva , for Mr. Morant HEARD: April 18, 2013 SPIES J. (Orally) REASONS FOR SENTENCE Introduction [ 1 ] Mr.

Morant was charged with numerous firearms offences relating to a shooting that occurred on October 18, 2011, including two counts of discharging a prohibited firearm at two brothers, having in his possession two handguns, one a Smith & Wesson model 659 and the other a Smith & Wesson model 5906 and numerous other charges with respect to those two firearms. He was also charged with two counts of having in his possession a prohibited device namely an ammunition magazine capable of holding more than ten rounds and possession of marijuana for the purpose of trafficking and a related charge. Mr.

Morant pleaded not guilty to all of the charges and the trial commenced with a jury. After the evidence of the Crown’s first witness was completed, who was the older of the two brothers, counsel advised me that they had reached a resolution of the matter although no agreement was reached with respect to penalty. As a result, Mr. Morant re-elected trial by judge alone in the absence of the jury and was re-arraigned. He pleaded guilty to the

following offences: - Count 8 - possession of a loaded prohibited firearm; a Smith & Wesson model 659 handgun while he was not the holder of an authorization or licence to possess the firearm and the holder of a registration certificate for the said firearm contrary to section 95(2) (

a) of the Criminal Code ; - Count 15 - possession of a loaded prohibited firearm; a Smith & Wesson model 5906 handgun while he was not the holder of an authorization or licence to possess the firearm and the holder of a registration certificate for the said firearm contrary to section 95(2) (

a) of the Criminal Code ; - Count 19 - carry a concealed weapon; a Smith & Wesson model 5906 handgun while not being authorized under the Firearms Act to do so contrary to section 90(2) (

a) of the Criminal Code ; and - Count 21 - possession of a prohibited device to wit an ammunition magazine capable of holding more than ten rounds for the purpose of committing an offence contrary to section 91(3) (

a) of the Criminal Code . [ 2 ] After receiving the admitted facts as set out below, I discharged the jury and found Mr. Morant guilty of these offences. The Facts (

a) Circumstances of the Offences [ 3 ] On Tuesday, October 18, 2011, at approximately 9:40 p.m., officers from 23 Division responded to a radio call reporting the sound of gunshots in the Mount Olive area in the City of Toronto. Two complainants reported that they were standing in front of a residence when an unknown male was seen walking towards them who pulled out a gun and pointed it at them. They turned around and ran into their residence as the unknown male fired numerous shots in their direction. They did not sustain any injuries.

That male then fled. [ 4 ] Officers from the Major Crime Unit of 23 Division arrived within minutes of the radio call. They observed Nadir Morant leaving the Mount Olive complex while placing a silver firearm into a black bag. The officers identified themselves and attempted to effect an arrest. At this point Mr. Morant began to flee. After pursuit he was arrested at the rear of 49 Silverstone Drive. As a result of a search incident to arrest, a Smith & Wesson model 659 handgun and a Smith & Wesson model 5906 handgun were found in the black bag.

Both of the firearms were loaded with 9 mm ammunition and ready to fire. [ 5 ] It was admitted that both handguns are prohibited weapons within the meaning of the Criminal Code . The defendant was also found with an ammunition magazine with the capacity to hold seventeen bullets which is a prohibited device. It was also admitted that the defendant is not the holder of an authorization or licence to possess these firearms or the holder of a registration certificate for the said firearms. (

b) Circumstances of Mr. Morant [ 6 ] Mr. Morant was born in March 1991 and was 20 years old on the night of the offence. He is now 22 years old. His parents were both immigrants. His father was born in Jamaica and his mother was born in England and moved to Jamaica as a child. His mother works at the University of Toronto in the School of Continuing Education as the Executive Assistant to the Dean. Mr. Morant’s father owns a dump truck business. Mr. Morant’s parents separated when he was seventeen years old. He continued to live with his mother in Rexdale, Ontario until his arrest. [ 7 ] Mr.

Morant attended North Albion Collegiate Institute and did his Grade 12 at Father Henry Carr. He also attended Monsignor Frasier Adult School. He is shy a few credits to complete his secondary school diploma. [ 8 ] Mr. Morant comes from a very big family and has thirteen siblings. It is a very close family which was apparent at the time of the sentencing hearing as there was a very large contingent of family members and friends present to show their support for Mr. Morant. He is very fortunate to have so many who care about him. [ 9 ] Because of his age and incarceration for this offence, Mr.

Morant has a limited employment history. He worked as a factory worker when he was fifteen years old and prior to his arrest had just been laid off a few weeks earlier from a temporary job at Mr. Christie’s bakery/factory. [ 10 ] Mr. Morant realizes he now has a criminal record and has expressed an interest in obtaining an apprenticeship as an electrician or as a ventilation mechanic. He believes his criminal record will not prevent this career path. [ 11 ] Mr. Morant’s father has recently purchased a home in Whitby and there is a room specifically for him there. Mr.

Morant plans to live in Whitby with his father upon his release. He no longer intends to live in Rexdale or return to his mother’s home. He hopes in this way to avoid the pressures of the peer group there and the dangers of the neighbourhood. [ 12 ] Ms. Riva called Ms. Dennie, Mr. Morant’s mother, who confirmed the background information provided about her son including

his education and family support. She stated that the family was all very supportive of Mr. Morant moving on from this and they would do everything in their power to ensure that he did so. She described how she was in complete shock when she heard that her son had been found with a firearm and later learned that there were, in fact, two. Given where they lived she had discussed gun violence with her son many times and he always told her that it would never be him who was involved with a gun.

In the neighbourhood however, there is gun violence and shootings and her son had grown up with friends he had known since Grade 4. Ms. Dennie explained that the decision was made that upon her son’s release he will live in Whitby with his father so that he has no reason to return to the neighbourhood and can focus on finishing his high school diploma and beginning an apprenticeship. Ms. Dennie advised that her son agrees with this plan as living in the Rexdale neighbourhood exposes him too much to the same peer group and is not a safe place for him. A family friend has offered to assist Mr.

Morant to get a job in Alberta if he cannot find work in Ontario. [ 13 ] Mr. Morant wrote a letter to me and spoke to me as well. He apologized to everyone and thanked his family and friends for support. In his letter he stated “I would also like to say that I have learned from my mistakes and I am determined to be a contributing member of society. I refuse to be the next young minority coming from a low income area in and out of jail.” [ 14 ] A letter of support from Mr. Morant’s basketball coach, Courtenay Campbell was filed. He has known Mr.

Morant since 2005 and describes him as a non-confrontational person who is fun, playful and loves his friends and family. Mr. Morant was involved in many of the programs that Mr. Campbell coordinated and facilitated and he was never an issue and he had never seen him in any altercations. He does comment that because Mr. Morant is a bigger person many people try to influence him in a negative way. Positions of Crown and Defence [ 15 ] Mr. Morant has been in custody since October 18, 2011 which is approximately eighteen months.

He served about the first half of that time at the Metro West Detention Centre (“TWDC”) and the second half at the Toronto Don Jail (“Don Jail”) where he remains. [ 16 ] Mr. Kenny, on behalf of the Crown, seeks a sentence of four years for each of these offences to run concurrently. It is his position that the credit for time served should be on a one-for-one basis. He submitted that if I do decide to give Mr. Morant some enhanced credit it should be something less than 1.5 for every day served.

After pre-trial credit on a 1:1 basis for 18 months, that would leave a sentence of two and a half years left to serve in a penitentiary. [ 17 ] It is the position of Ms. Riva on behalf of Mr. Morant that the appropriate sentence in these circumstances is three years concurrent on all charges less pre-trial custody which should be awarded on a 1.5:1 basis. That would result in about nine months remaining to be served which would be served in a provincial institution. [ 18 ] Mr. Kenny also requests a

section 109 order for 20 years, a DNA order and a forfeiture order with respect to the firearms and ammunition that was seized. Ms. Riva has no issue with the ancillary relief sought by the Crown. Legal Parameters [ 19 ] This is Mr. Morant’s first conviction for a firearms offence. The penalty for possession of a loaded restricted firearm, contrary to section 95(2) (

a) of the Criminal Code , is a term of imprisonment not exceeding ten years, subject to a minimum term of imprisonment for three years, in the case of a first offence. [ 20 ] Neither counsel initially raised the fact that this provision has been declared inconsistent with the Charter and of no force or effect in a recent decision of Justice Molloy in R. v. Smickle . [1] When I questioned Mr. Kenny about this he responded that the defence had not brought a constitutional challenge, which Ms. Riva confirmed.

However, that begged the question of whether or not one was necessary since Justice Molloy concluded that it was not appropriate to suspend the operation of her ruling and that the declaration of invalidity would have immediate effect. Her decision is under appeal but no application to stay her decision was ever brought in the Court of Appeal. [ 21 ] No doubt as a result of my questions of Mr. Kenny, Ms.

Riva took the position that I was bound by Smickle and that there is no mandatory minimum at this time as a result. [ 22 ] Since the position of both counsel was that the appropriate sentence in this case is at least three years, I have concluded that there is no need to consider whether or not I should follow Justice Molloy’s decision or consider the constitutionality of s. 95(2) (a)(

i) as that would be irrelevant to determining the appropriate sentence. Sentences in Firearms Cases [ 23 ] Mr. Kenny relied on a few cases that were decided after the mandatory minimum was imposed including R. v. Nur [2] , my decision of R. v. Z.L.M. [3] and R. v. Velez-Lau [4] . [ 24 ] In Nur , Code J. considered the sentencing case law that developed in the ten year period from 1998 to 2008, when the three year minimum sentence was enacted and also what would be a fit sentence in the post-2008 era. During the period a one year minimum

sentence was prescribed for a s. 95 firearms offence, Code J. concluded (at para. 42) that “… the appropriate sentence for a first offence of possession of a loaded handgun simpliciter , that is, where there were no additional convictions such as for drug trafficking, tended to be between two years less a day and three years’ imprisonment”.

He went on to state (at para. 44) that the bottom end of the range was generally reserved for youth or first offenders with good rehabilitative prospects who pled guilty and the higher end of the range was generally reserved for offenders with prior records who proceeded to trial. [ 25 ] As Justice Code noted (at para. 45), a range of sentence is simply a flexible guideline for the normal case and there can be departures from the range depending on the circumstances of the case. In R. v.

Mullings [5] I reviewed a number of firearms cases where sentences had been imposed well outside the range referred to by Code J. which illustrates this point. [ 26 ] In Z.L.M ., after a Charter application was dismissed, the offender changed his plea to guilty on most of the charges. This was a mitigating factor. The offender was carrying a loaded firearm in a mall during the holiday season and was apprehended after a struggle. He made no attempt to use the firearm at any time but in those circumstances I found it could have discharged accidentally and injured or killed someone.

I also found that although he was not actively trafficking in marijuana at the time, he had marijuana in his possession ready for sale. This was the first firearms offence for this offender and although he had a criminal record, most of it was in the Youth Justice Court. He was 22 at the time of the offences and I determined that there was a real prospect of rehabilitation.

I sentenced him to a global sentence of 37 months; 36 months attributable to the firearms offences and one month for possession of marijuana to be followed by probation for eighteen months on strict terms. [ 27 ] Although not referred to by counsel, in another recent decision of mine; R. v. James , [6] the offender pleaded guilty to possessing a loaded prohibited firearm and breach of a

section 109 order. Mr. James had run from police who were trying to arrest him on an outstanding warrant and in the course of fleeing, he crossed Highway 401, weaving through slow traffic. As he did so, he removed the handgun from his waist area and tossed it into the rear of a dump truck. Mr. James had a serious criminal record including convictions for failure to comply with recognizance (x3), assault and uttering threats, dangerous operation of a motor vehicle, failure to comply with probation order, possession of counterfeit money, trafficking in cocaine and a further conviction for possession of a

schedule I substance for the purpose of trafficking. Mr. James was 26 years old at the time of sentencing. I determined that an appropriate sentence for the firearms conviction was three and a half years and for the breach of the prohibition order, a consecutive sentence of eight months. [ 28 ] In Velez-Lau the 24 year old offender was convicted after a trial, of possession of two firearms, a magazine and related ammunition found in a storage locker and related charges. Both firearms were loaded.

The offender had no criminal record and Pattillo J. concluded that his prospects of rehabilitation were good and that he had family support. He was sentenced to four years’ imprisonment on each count for the possession of the firearms, to run concurrently. Mr. Kenny urged me to follow this case in support of his position. I note that the defence in that case sought a four year sentence whereas the Crown sought a five and half year sentence. [ 29 ] Ms. Riva relied on R. v.

Flynn . [7] In that case counsel made a joint submission for a sentence of two years less a day of imprisonment where the offender pleaded guilty to charges of assault with a weapon, assault causing bodily harm, possession of a firearm, possession of a loaded prohibited firearm, careless storage of a firearm, uttering death threats and breaches of recognizance. The offender was a 22 year old man with limited education and limited work experience.

Counsel had reached the submission as to sentence premised on the fact a three year minimum penalty as set out in section 95(2) of the Criminal Code applied, that the defendant had spent approximately 9 months in pre-sentence custody, that he should receive a two-for-one credit, i.e. eighteen months, resulting in an effective sentence of about three and a half years. Principles of Sentencing [ 30 ] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code , is to ensure respect for the law and the maintenance of a just, peaceful and safe society.

The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community.

In addition, in imposing sentence I must take into account the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2. Determination of a Fit Sentence [ 31 ] Mr. Kenny referred to R. v. Brown , [8] and the statement by the Ontario Court of Appeal (at para. 14) that “[h]andguns are an all too prevalent menace in the Greater Toronto Area.

First and foremost, the sentences imposed for firearms offences must further the sentencing goals of denunciation, deterrence and protection of the public.” To the same effect are the words of Nordheimer J. in R. v.

J.G . [9] , where he commented that the objectives of denunciation and deterrence are of primary importance when dealing with firearms offences and that citizens in Toronto are “understandably appalled at what appears to be a proliferation of handguns in the city”. (at para. 36) [ 32 ] Although I accept that the principles of denunciation and deterrence are of primary importance in this case, in determining a fit sentence I should consider if there is any real prospect for the rehabilitation of Mr. Morant.

For the reasons that follow I find that in this case, the prospect of rehabilitation is good and is an important factor in determining a fit sentence. Ms. Riva relied on R. v. Q.B. , [10] where at para. 36, the court held that the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where an offender has never been to the penitentiary before or served a long

adult sentence the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [ 33 ] In my view the following facts are aggravating factors relevant to sentence in this case:

a) Mr. Morant was found in possession of two loaded prohibited firearms and a prohibited ammunition device. Although he would have only had the firearm that was discharged in his possession for a few minutes, I do not know how long he had the other loaded firearm and the ammunition device in his backpack. I should state, however, that the fact that the firearms were loaded is included in the offence as defined by section 95(2) (

a) and as such should not be considered on its own as an aggravating fact.

b) Although no one was injured, when the police first saw Mr. Morant he was putting one loaded gun into his backpack. Mr. Morant was leaving the scene where shots were fired and fled from police. They were required to chase him through a residential neighbourhood. Ms. Dennie testified that the Mount Olive area was a particularly dangerous area plagued with gun violence. Mr. Morant’s conduct presented obvious dangers to residents of the neighbourhood, the police officers who were pursuing Mr. Morant and even Mr. Morant himself, in the event of an accidental discharge which could have injured or killed someone. Mr.

Kenny also submitted that children had been targeted but I have not considered this as the matter was resolved on the basis that Mr. Morant is not the person who discharged a firearm. [ 34 ] The mitigating factors in this case are as follows:

a) Mr. Morant is a youthful offender. He was only 20 at the time of the offence.

b) Mr. Morant has no criminal record and no youth record.

c) Mr. Morant has a very large and supportive family. I do not know what could account for these offences but am satisfied that his parents, family and friends will do their best to ensure he stays out of trouble in the future.

d) Mr. Morant pleaded guilty at the earliest opportunity. In this case the Crown concedes that Mr. Morant had no opportunity to plead guilty to only the firearm possession charges until after the first Crown witness testified. That witness testified that Mr. Morant was not the person who discharged the firearms; something he had never been asked before. As soon as that occurred discussions ensued between the Crown and Defence and Mr. Morant changed his plea.

e) Mr. Morant has demonstrated by his letter and his statement to the court that he not only feels remorse for his actions but that he recognizes how he must resist becoming a young minority offender coming from a low income area who is in and out of jail. I am satisfied that this experience has resulted in a tough lesson which should go a long way to act as a specific deterrent to prevent Mr. Morant from becoming involved in criminal activity in the future. [ 35 ] Ms. Riva submitted that I should also consider the fact that if Mr.

Morant had been able to plead guilty to some of the charges as he did at trial, then he would have served his sentence in the penitentiary which would have given him some opportunities for programming not present in the provincial jails. It seems to me that this is a consideration for enhanced credit, rather than a factor to reduce sentence. [ 36 ] I should state that one factor that distinguishes this case from some of the cases of this nature is that although a drug offence was alleged, Mr. Morant has not been convicted of any drug offence.

Although I do not know why he had these two loaded firearms in his possession, this is not a case of what the courts have described as the deadly combination of drugs and guns. [ 37 ] Mr. Kenny’s position is not unreasonable; as he points out the facts in this case are more serious than the facts in Velez-Lau where the offender was sentenced to four years, in that Mr. Morant had the two firearms out in a residential area and, in fact, was handling one of them.

On the other hand, he pleaded guilty at the first opportunity which is an important mitigating factor. [ 38 ] In James , the facts the offender pleaded guilty to were more serious in that the offender ran from police who were trying to arrest him on an outstanding warrant and in the course of fleeing, he crossed Highway 401, removed the handgun from his waist area and tossed it into the rear of a dump truck. He was only found with one firearm but Mr. James had a serious criminal record and was also convicted for breach of a prohibition order.

I determined that an appropriate sentence for the firearms conviction was three and a half years. [ 39 ] In Z.L.M ., the offender was carrying a loaded firearm in a mall during the holiday season and was apprehended after a struggle, not unlike the facts in the case at bar, although he did not have the firearm in his hand at any time. This offender pleaded guilty after his Charter application was dismissed which I found had raised legitimate issues. Although he had a criminal record, most of it was in the Youth Justice Court.

I found his prospects for rehabilitation to be very good and sentenced him to a global sentence of 37 months; 36 months attributable to the firearms offences and one month for possession of marijuana to be followed by probation for eighteen months on strict terms. [ 40 ] In considering all of the aggravating and mitigating factors in this case I have concluded that a fit sentence for this first offence of possession of two loaded prohibited firearms is 40 months.

In my view, as this is a significant penitentiary sentence, it meets the needs for denunciation and deterrence and is not so long, particularly having regard to time served, that it undermines the prospects for Mr. Morant’s rehabilitation. Counsel agree that the same sentence should be imposed for all of the convictions all to run concurrently. Pre-Sentence Credit

[41] By the time of the sentencing hearing, Mr. Morant had spent 547 days in custody. To the date of sentencing, he had spent afurther 13 days, for a total of 560 days or just over 18½ months. He was arrested on October 18, 2011 and has been in custody since thattime. [42] Ms. Riva filed a letter along with some other documentation from the security managers of the TWDC where Mr. Morant washeld from the time of his arrest to July 31, 2012 and a letter from David Ruttle from the Security Unit of the Don Jail where Mr. Moranthas been since July 31, 2012. She relies on the recent decision of R. v.

Summers,[11] from the Court of Appeal, in support of her positionthat Mr. Morant should receive enhanced credit of 1.5 days for every day served. In Summers the court considered the many conflictingdecisions on the

interpretation of section 719(3.1) of the Criminal Code and concluded (at para. 8) that “on a proper record, the relevantcircumstances that may justify this enhanced credit [1.5:1] include ineligibility for remission and parole while in remand custody.” Therewas no suggestion that the offender’s remand conditions were particularly harsh or oppressive in that case. The court went on to say that: …nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remandoffender on the basis of the absence of remission and parole eligibility.

There must be some basis in the evidence or the informationbefore the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.(para. 117, emphasis added) [43] I drew the attention of counsel to the Court of Appeal’s decision in R. v. Morris[12] which was decided after Summers and alsoconsidered the issue of enhanced credit. In that case the court concluded that the trial judge had erred in her

interpretation of section719(3.1) of the Criminal Code in light of the Summers decision, but upheld the sentencing decision. The court held (at para. 19) that thetrial judge was required to take into account all of the circumstances, which in that case entitled the trial judge to take into account thefact that the offender was on bail and bound by a weapons prohibition order when he was arrested on the offences for which he wasconvicted.

The court concluded that this was sufficient to disentitle the offender to enhanced credit. [44] In considering the issue of enhanced credit on the basis of ineligibility for remission and parole while in remand custody, thecourt in Summers stated (at footnote 4 to its decision): Under s. 127(3) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 the statutory release date of an offenderwho is serving a penitentiary sentence is the day on which the offender completes two-thirds of the sentence.

Under s. 120 of the samestatute, an offender is eligible for full parole beginning one-third of the way through sentence or seven years of the sentence, whicheveris lesser. By the combined effect of the rules governing statutory release and parole, an offender is eligible to be granted parole anywherebetween one-third and two-thirds of the way through the completion of sentence. Earned remission, on the other hand, is governed by thePrison and Reformatories Act, R.S.C., 1985, c. P-20.

Generally earned remission is available to an offender between one-third and two-thirds of the way through sentence, depending on the offender’s behaviour while in custody and his or her rehabilitative prospects. Anoffender earns remission credit by obeying prison rules and by participating in available programs while incarcerated. (Emphasis added) [45] The court in Summers also approved of the trial judge’s finding that the vast majority of people are granted parole somewherebetween one-third and two-thirds of their sentence with more of them being towards the one-third mark, (at para. 22). [46] Mr.

Morant is a young offender with no record and a good character reference. However, he has been involved in three incidentswhile in custody according to a handwritten note headed “3 offences in custody” from Sgt. Maclennan dated April 9, 2013, included withthe records from the TWDC. According to Sgt. Maclennan, on November 8, 2011, Mr. Morant was involved in a physical altercationwith another inmate. The same thing occurred on July 15, 2012. On November 13, 2012, he is stated to have been involved in a “three onone assault on another inmate”.

During my deliberations I discovered that the TWDC records include an earlier typed note from Sgt.Maclennan dated April 5, 2013 which refers to four incidents all with different dates than those listed in his later handwritten note. Thereis no explanation for this but since the handwritten note is later and clearly intended to refer to all incidents while in custody I have relied only on the handwritten note. I should add that although Sgt. Maclennan refers to these incidents as “offences” Mr. Morant has notbeen charged with any offences arising out of these incidents. [47] Ms.

Dennie described her last visit to her son when he was at the TWDC. She witnessed the incident that occurred on November8, 2011. She testified that she observed a small inmate sucker punch her son as he came into the area to visit with her resulting in a fightbetween the two of them. She did not visit him after that as she was concerned about not exposing him to an unsafe environment. I acceptthis evidence. Clearly Mr. Morant was not at fault. It would likely also be naïve of me to say that he should have resisted fighting thisinmate given the situation he was in. [48] With respect to the last incident Ms.

Riva advised me that Mr. Morant was mistaken for another inmate and that started the fightand then others joined in. Mr. Kenny rightly objected to the fact that I do not have evidence of this but it does illustrate the fact that ifothers joined in with Mr. Morant, that is different than Mr. Morant and others together as a group starting a fight with a single inmate. [49] Mr. Riva also advised me of injuries Mr. Morant suffered in a fight on the range at the Don Jail but as I have no evidence of thatI have not considered it. [50] I have insufficient information to determine what Mr.

Morant’s culpability was with respect to two of the incidents and also donot know if these types of incidents would affect early release and how. Although these incidents are of some concern about whether ornot Mr.

Morant would have obeyed prison rules in a penitentiary setting, given that he has no record, not even a youth record, and giventhe character reference from his basketball coach, it may be that his record would be better had he served his time in a penitentiary wherehe might have been able to keep busy by completing his high school credits and playing sports rather than being housed in the harshconditions he has faced at the TWDC and the Don Jail.

Nevertheless, this evidence does require some consideration in determiningwhether there should be enhanced credit and, if so, how much. [51] The fact remains that parole eligibility and statutory release and remission provisions do not take account of time spent in pre-sentence custody and to that extent Mr. Morant has been prejudiced by his inability to plead guilty to these offences at a time closer to hisarrest. As LaForme J.A. observed in R. v.

Monje[13], in a case decided by the Court of Appeal after these amendment, “pre-sentencecustody continues to be “dead time” for the same reasons Laskin J.A. noted in Rezaie [R. v. Rezaie (1996), (ON CA),

31 O.R. (3d) 713] and remains one of the most punitive forms of imprisonment in Canada”. (at para. 18) [ 52 ] The conceptual rationale for crediting pre-sentence custody before the amendments to the Criminal Code also traditionally included consideration of the fact that generally, detention centres do not provide educational, retraining or rehabilitation programming for those in custody awaiting trial; and due to overcrowding, inmate turnover, labour disputes and other factors, the custodial conditions for remand prisoners can be unusually onerous. [14] [ 53 ] The TWDC confirm that inmates are entitled to twenty minutes of fresh air per day.

The records they provided are not summarized but include a 7½ page list of program cancellations and lockdowns resulting in institutional fresh air, programs and visits being cancelled largely due to lack of staff. Clearly this was a common occurrence although sometimes it affected only certain wings and so I cannot tell if Mr. Morant was affected on these occasions. There is also mention of a lockdown of a specific unit due to escalating gang violence and another, again for a specific unit, for potential unit brawls.

A twenty-eight page chart was provided which shows shared bed/cell assignments and demonstrates that for much of the time Mr. Morant was triple bunked although it does not show who was sleeping on the floor. In the days leading up to July 15, 2012, the day of one of his incidents, he was in segregation for ten days, and this is also the case for the days leading up to and following the incident on November 8, 2011 where he was in segregation for seven days. In addition, he was in segregation for five days in early November 2012. Given that for two of these periods Mr.

Morant’s segregation began before the incident reported by Sgt. Maclennan, the segregation was clearly not punishment for Mr. Morant’s perceived role in the incident. [ 54 ] As for the Don Jail, Mr. Ruttle reports that Mr. Morant has been triple bunked on seventeen nights although he was never the one on the floor. Although each inmate is entitled to receive fresh air daily, the length of time allotted to fresh air depends on a number of factors including staff shortages.

Based on the statistics, the general population units have been offered the opportunity to attend “yard” for fresh air an average of only five days per month. This is mainly due to staff shortages and inclement weather. There is no exercise equipment available at the Don Jail and the yard is for fresh air only. [ 55 ] The information provided by these institutions confirms that the rationale for enhanced credit still exists.

Living in very overcrowded conditions, with the threat of violence among the inmates, being regularly triple bunked in a windowless cell that is 6' by 9' including a toilet and not even being able to go outside for much of the time let alone exercise is harsh for anyone but is particularly harsh for such an athletic young man. The conditions in these institutions are disturbing and clearly do not provide an environment where a young offender with no criminal record can be expected to be rehabilitated and discharged as a young man ready to lead a productive life free from crime. Furthermore, as Ms.

Riva submitted, if Mr. Morant had been able to plead guilty to some of the charges as he did at trial, then he would have served his sentence in the penitentiary which likely would have given him some opportunities for programming not present in the provincial jails and hopefully better living conditions. [ 56 ] For these reasons, in my view, Mr. Morant should receive enhanced credit to reflect his loss of remission and parole eligibility and the conditions at both the TWDC and the Don Jail. In all of the circumstances I find that Mr.

Morant should receive enhanced credit at the rate of 1.4:1 which results in a credit for his 18½ months served, of 26 months. I have decided not to give him the full credit requested by Ms. Riva because of the incidents he has been involved with in jail. This means he still has 14 months left to serve. In addition, I intend to impose a term of probation of 18 months to assist in his rehabilitation. Final Disposition [ 57 ] Mr. Morant, would you please stand. [ 58 ] I sentence you to 40 months on each of your convictions for counts 8, 15, 19 and 21. Each sentence will run concurrently to the other.

You have already served 18½ months in custody. I will give you credit for that time served on a 1.4:1 basis which means that your credit for pre-sentence custody is 26 months. As a result you have 14 months left to serve. [ 59 ] Once you are released from custody you will be subject to a period of probation for 18 months. In addition to the compulsory conditions of this probation order, provided for by

section 732.1(2) of the Criminal Code , the additional conditions of the order pursuant to s. 732.1(3) of the Code are as follows:

a) Report within 2 working days of your release, in person, to a probation officer and thereafter when required by the probation officer;

b) Remain within the province of Ontario unless written permission to go outside the Province is obtained from the court or the probation officer;

c) Reside with your father or at an address approved of by the probation officer;

d) Do not change your address without the prior approval of the probation officer;

e) Abstain from the purchase, possession or consumption of any drugs, or other substances prohibited by law, except in accordance with a medical prescription;

f) Abstain from owning, possessing or carrying any weapon as defined in the Criminal Code ;

g) Attend and actively participate in such counselling programs as may be recommended by your probation officer and sign

releases to monitor compliance as needed;

h) Make reasonable efforts to complete your high school diploma and further your education or vocational training and/or find and maintain suitable employment either as an employee or business owner. [ 60 ] Mr. Morant, a copy of the Probation Order will be given to you by the court officials who will ensure that the substance of sections 732.2(3), 732.2(5) and 733.1 are explained to you regarding the probation order. Please pay very careful attention to all of these conditions. Breach of any of these conditions will be taken very seriously by this Court. [ 61 ] In addition there will be a mandatory weapons prohibition order pursuant to section 109(1) (

b) of the Criminal Code for twenty years. In addition, there will be a DNA order pursuant to

section 487.051(3) authorizing the taking of a DNA sample. The order shall apply to all counts. [ 62 ] Finally there will be an order directing the forfeiture of the two firearms and ammunition that were seized by the police when they arrested you pursuant to section 491(1) of the Criminal Code . ___________________________ SPIES J. Released: May 1, 2013 Edited Decision Released May 14, 2013 CITATION : R. v. Morant, 2013 ONSC 1969 COURT FILE NO.: 12-50000446-0000 DATE: 20130501 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - NADIR MORANT

REASONS FOR SENTENCE SPIES J. Released: May 1, 2013