)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 4230

CITATION : R. v. Brown, 2013 ONSC 4230 COURT FILE NO.: 0152/12-12-12-70000276-0000 DATE: 20130703 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – JAFSA BROWN )) )) )) )) ) ) E. Pancer , for the Crown L.K. Wildman , for the Accused HEARD: June 18 & 26, 2013 REASONS FOR SENTENCE GARTON J. : Introduction [ 1 ] After a trial by this Court sitting without a jury, the accused, Jasfa Brown, was found guilty of a number of firearms offences, carrying a concealed weapon, to wit, a knife, and possession of crack cocaine.

The knife and handgun, which was a fully loaded .38 calibre revolver, were seized by police from Mr. Brown’s jeans pockets following a traffic stop on January 26, 2011. Mr. Brown was arrested and transported in a scout car to 54 Division. Shortly thereafter, the police found 5.49 grams of crack cocaine in the back seat of the car. I found that Mr. Brown had placed the drugs there. [ 2 ] The counts in the indictment on which Mr. Brown has been found guilty are as follows: (

i) Count 1 : Possession of a loaded restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code , R.S.C. 1985, c. C-46; (ii) Count 2 : Possession of a firearm without a licence, contrary to s. 91(1) of the Code ; (iii) Count 3 : Possession of a firearm knowing that he was not the holder of a licence under which he could possess it, contrary to s. 92(1) of the Code ; (iv) Count 5 : Being an occupant of a motor vehicle in which he knew that there was a firearm, for which no occupant of the vehicle was the holder of a permit under which he may lawfully have had that weapon in his possession in the vehicle, contrary to s. 94(1) of the Code ; (

v) Count 6 : Carrying a concealed weapon, to wit, a knife, contrary to s. 90(1) of the Code ; and (vi) Count 9 : Possession of a controlled substance, to wit: cocaine, contrary to s. 4(3) of the Controlled Drugs and Substances Act , S.C. 1996, c.19. The Circumstances of the Offences [ 3 ] On January 26, 2011, at around 3:15 p.m., Mr. Brown was driving northbound on O’Connor Drive in Toronto when he was stopped by P.C. Pershin for a “tinted windows” offence, contrary to s. 73(3) of the Highway Traffic Act , R.S.O. 1990, c. H.8 (“ HTA” ).

As the driver’s window was lowered, the officer immediately detected a strong and pungent smell of fresh, dried, unburned marijuana. He spoke to Mr. Brown about the smell and then asked him to produce his driver’s licence, vehicle ownership and insurance card. As soon as P.C. Pershin saw the insurance card, he suspected that it was fake. He returned to his scout car and, after about ten minutes, was able to confirm that the card was, in fact, invalid. [ 4 ] P.C. Pershin walked back to Mr.

Brown’s car, advised him that he could not drive the vehicle because it was uninsured, and told him to arrange for a tow truck. P.C. Pershin returned to his scout car, where he conducted a computer search regarding Mr. Brown’s background and made out five summonses with respect to the “tinted windows” offence and driving without insurance, contrary to the Compulsory Automobile Insurance Ac t, R.S.O. 1990, c. C.25 (“ CAIA ”). [ 5 ] At about 3:30 p.m., two other officers, P.C. Perks and P.C. Kung, arrived on scene and spoke briefly to P.C. Pershin, who

asked them to stand by. They parked behind P.C. Pershin. After completing the summonses, P.C. Pershin turned his mind to investigating the offence of possession of marijuana. He walked back to where Officers Perks and Kung were parked and advised them of certain matters regarding Mr. Brown’s background and the smell of marijuana emanating from Mr. Brown’s car. He also told them that he wanted to get Mr. Brown out of the car so that he could search the area of the driver’s seat. P.C. Pershin, followed by Constables Perks and Kung, then approached Mr. Brown’s car. [ 6 ] P.C. Pershin handed Mr.

Brown the summonses and asked him to step out of his car so that he could search it. Mr. Brown exited the vehicle and was escorted by Constables Perks and Kung to P.C. Pershin’s scout car. Both Constables Perks and Kung decided to conduct a pat down search of Mr. Brown for officer safety reasons. [ 7 ] P.C. Kung told Mr. Brown that he was under investigative detention with respect to the offence of possession of marijuana and that he would be patted down for weapons. He asked Mr. Brown, “Any weapons?” Mr. Brown replied, “No.” [ 8 ] P.C. Kung patted Mr.

Brown’s left jacket pocket and then his left front jeans pocket. In order to pat down the back jeans pockets, P.C. Kung lifted up the jacket. He felt something hard in the left back pocket but concluded that “it wasn’t anything.” He then lifted up the right side of the jacket and observed a black folding pocket knife protruding from Mr. Brown’s right back jeans pocket. It was clipped into the pocket. P.C. Kung removed the knife and put it in his own pocket. [ 9 ] One or two seconds after the discovery of the knife, P.C. Perks lifted up Mr. Brown’s shirt and observed the handle of a gun protruding from Mr.

Brown’s right front jeans pocket. He asked Mr. Brown, “Is that a gun?” Mr. Brown replied, “Yes.” Mr. Brown was immediately handcuffed to the rear. P.C. Perks, who described himself as “kind of stunned” upon seeing the firearm, removed it from Mr. Brown’s pocket. [ 10 ] P.C. Kung performed a search incidental to arrest and removed other items from Mr. Brown’s pockets, including $441.83 in cash, a cell phone and three bandanas. [ 11 ] P.C. Perks was unsuccessful in his attempts to remove the ammunition from the firearm. P.C. Kung and P.C. Pershin were also unsuccessful in this regard. As a result, P.C.

Perks ended up carrying the fully loaded revolver in the front seat of the scout car as he and P.C. Kung transported Mr. Brown to 54 Division. Upon their arrival at 3:51 p.m., another officer took possession of the gun and proved it safe. Discovery of the crack cocaine [ 12 ] In accordance with police protocol, P.C. Kung had checked the back seat of the scout car at the start of his shift at 3:00 p.m. that day and found no contraband present. The officers left the station at 3:24 p.m. and at 3:30 p.m. arrived at the scene of the vehicle stop. Mr.

Brown was the first and only person to occupy the rear seat of the scout car after P.C. Kung’s earlier search of it. [ 13 ] After arriving at the police station, Mr. Brown was asked to step out of the scout car, which he did. Seconds later, P.C. Kung decided that it would be a good idea, in light of the weapons that had been found on Mr. Brown’s person, to check the back seat in Mr. Brown’s presence. Upon reopening the rear door, P.C. Kung noticed a two-inch gap between the seat and the back rest. Upon lifting up the seat, he discovered the crack cocaine. Mr.

Brown’s testimony [ 14 ] After the dismissal of the defence application pursuant to s. 24(2) of the Charter to exclude the firearm, knife and crack cocaine as evidence, Mr. Brown testified at the trial proper and explained how he came into possession of the loaded .38 calibre revolver. In my reasons for judgment, I reviewed Mr. Brown’s testimony in detail and rejected his explanation as fabrication. [ 15 ] Briefly, Mr. Brown maintained that he had found the gun in an alley by happenstance that day.

He testified that he picked it up and put it down the front of his pants with the intention of taking it to the police. However, he decided to first pick up his son at school. He was on his way to the school when P.C. Pershin pulled over his car for the “tinted windows” offence. [ 16 ] In my reasons for judgment, I found that Mr. Brown was not a credible witness. I rejected his evidence as to how he happened upon the firearm and his various explanations as to why he took no steps to report it to the police before it was discovered during the pat- down search. I found that had Mr.

Brown found the gun in the circumstances that he described, and if he were as ignorant as he said he was about firearms, there is no way that he would have risked injury to himself by putting a fully loaded revolver in his pants pocket. At the very least, he would have put it in the trunk or some other part of his car. He would not have kept it on his person. I rejected Mr. Brown’s testimony that he was unaware that the gun was loaded as the bullets were obvious and could not have been missed, even if he had only casually glanced at the firearm.

His initial testimony that he was unaware that a firearm is discharged by pulling the trigger stretched credulity. [ 17 ] I am satisfied that Mr. Brown loaded the gun himself and that he had it on his person for protection, no doubt in connection with his purchase of crack cocaine, as well as a result of his having been the victim of a shooting incident in 2009 in which he lost an eye. [ 18 ] Mr. Brown was charged and convicted of simple possession of cocaine, as opposed to possession of cocaine for the purpose of trafficking. The fact that Mr.

Brown was also found in possession of $440 in cash raises the suspicion that he may have been involved in trafficking. However, that is all it is – a suspicion. I make no such finding for the purpose of imposing sentence. The circumstances of the offender [ 19 ] At the time of these offences, Mr. Brown was 27 years old and had no prior criminal record. He is now 30 years old. [ 20 ] Mr. Brown was born in Toronto and is the third of four children from his parents’ union. His parents separated when he was

five years old. Mr. Brown’s older sister, in speaking to the author of the pre-sentence report, recalled that the Children’s Aid Society(CAS) became involved with the family around the time of the separation. Mr. Brown had no recollection of CAS involvement in hislife. [21] Mr. Brown initially lived in Regent Park but the family moved to Orton Park and Lawrence Avenue when he was eleven. When he was fourteen, he was charged with an offence and sent to live with his father, with whom he continued to reside until agesixteen. He returned to live with his mother when his father became ill.

In 2000, he moved out of his mother’s home and moved in withhis girlfriend, Amanda Toppin. He and Ms. Toppin have been in a common law relationship for 13 years and have a nine-year-old son. [22] After dropping out of school in Grade 10, Mr. Brown did seasonal construction work. He has also worked as a painter and attimes has had full time jobs in the construction industry. [23] Mr. Brown has been the victim of several assaults. He indicated that he was stabbed when he was 17 or 18 years old forwearing red clothing while passing through an area affiliated with blue.

In 2009, he was hit by five bullets, four of which hit his faceand head and which resulted in the loss of an eye. He has been on the Ontario Disability Support Program since the shooting. The lossof his eye has limited his job prospects. [24] Mr. Brown advised the author of the pre-sentence report that he has smoked marijuana as a form of medication to allow himto sleep, as he has suffered from insomnia since the shooting incident. Neither he nor Ms. Toppin viewed his marijuana usage asproblematic. Mr. Brown denied using any other drugs. [25] Mr. Brown has the strong support of all his family members.

He is described as a caring father and very much involved in hisson’s upbringing. While on bail for these offences and under house arrest, he assumed the role of his son’s caregiver, which has allowedMs. Toppin to focus on her employment. [26] A letter from the Emmanuel Life Management Centre, which is a charitable organization in Brampton, indicates that Mr.Brown worked as a volunteer with young people between the ages of nine and twelve from February 2009 to February 2010. [27] Mr. Brown has not expressed any remorse for having committed these offences.

During his interview with the author of thepre-sentence report, he maintained that he had found the firearm on the same day that he was stopped by P.C. Pershin. He portrayedhimself as somewhat of a hero for having picked up the gun, stating that he “saved a life” and that “no one died because of [his]actions.” Pre-trial custody [28] Mr. Brown spent 20 days in pre-trial custody prior to his release on bail on February 14, 2011. After finding Mr. Brownguilty of these offences on April 19, 2013, I revoked his bail, which has resulted in a further 76 days of pre-trial custody. Mr.

Brown hastherefore spent a total of 96 days of pre-trial custody at the Don Jail as a direct result of these charges. [29] While on bail, Mr. Brown was charged with failing to comply with his recognizance and, on another occasion, with assault. Both charges triggered applications by the Crown under s. 524 of the Code to revoke Mr. Brown’s bail with respect to the charges beforethis Court. The s. 524 applications were eventually withdrawn, as were the failing to comply and assault charges. In terms of thespecific dates of his incarceration regarding those charges, Mr.

Brown was arrested for failing to comply with his recognizance on May10, 2011, and was released from Maplehurst Correctional Complex 98 days later, on August 15, 2011. He was arrested on the assaultcharge on May 20, 2012, and spent 52 days in custody at the Don Jail before his release on July 10, 2012. [30] Defence counsel submits that the 150 days that Mr. Brown spent in custody as a result of the assault and failing to complycharges should, in the circumstances, be included in the calculation of pre-trial custody. I agree, and rely in this regard on the principlesstated by Hill J. in R. v. Miller, [1997] O.J.

No. 3911, at para. 48. Pre-sentence house arrest [31] As stated in R. v. Downes (2006), (ON CA), 79 O.R. (3d) 321, 205 C.C.C. (3d) 488 (C.A.), time spent onstringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor in determining the length of sentence to beimposed. The amount of credit will depend upon a number of factors, including the length of time spent on bail under house arrest; thestringency of the conditions; the impact on the offender’s liberty; and the ability of the offender to carry on normal relationships,employment and activity. [32] When not in custody, Mr.

Brown has been under house arrest. Up until the commencement of this trial on March 11, 2013, hewas not allowed to leave his residence unless he was in the company of one or more of his four sureties, although his bail was varied onNovember 21, 2012, to permit him to take his son to and from school on his own. Unlike most house arrest conditions, there were noexemptions for medical necessities, employment or attendances for religious worship. [33] On the other hand, unlike the appellant in Downes, there was no curfew imposed on Mr. Brown.

He was therefore free toleave his home at any time of the day or night, as long as he was with a surety, one of whom was Ms. Toppin. For example, Mr. Brown’sattendance with Ms. Toppin at a bar in the entertainment district at 3:00 a.m. on May 20, 2012, was in compliance with his bail terms. Their attendance there would have been unremarkable but for the fact that Mr. Brown ended up being arrested for assaulting Ms.Toppin.

After receiving a complaint from a third party, the police arrived and charged him with the assault, which, as stated earlier, waseventually withdrawn on January 14, 2013. [34] The amount of time Mr. Brown has spent under house arrest is approximately twenty-one months. The position of the Crown

[35] The Crown seeks the imposition of a global penitentiary term in the range of four to five years, less credit for pre-trialcustody. Crown counsel submits that such a sentence is appropriate, bearing in mind that the mandatory minimum sentence for anoffence under s. 95(2)(a)(

i) of the Code is three years. Crown counsel takes the position that even if the mandatory minimum sentenceof three years is of no force or effect as a result of Molloy J.’s declaratory judgment in R. v. Smickle, 2012 ONSC 602, 110 O.R. (3d) 25,that such a sentence is inconsistent with the Charter, a sentence in the four to five-year range is still appropriate, bearing in mind theaggravating factors in this case. [36] Crown counsel asks that count 2 be stayed on the basis of the principle in R. v. Kienapple, (SCC), [1975] 1S.C.R. 729.

However, she submits that that principle is not applicable with respect to Count 3 – the offence pursuant to s. 92(1) of theCode – and that a one-and-a-half to two year concurrent sentence would be appropriate. The Crown seeks a concurrent sentence of threeyears with respect to Count 5, 30 days consecutive with respect to the offence of carrying a concealed weapon, and 30 days concurrentwith respect to the offence of possession of cocaine. The position of the Defence [37] Counsel for Mr. Brown submits that as a result of the Smickle decision, the mandatory minimum three-year sentence under s.95(2)(a)(

i) is of no force or effect. The defence submits that in the absence of the mandatory minimum sentence applying for thisoffence, the range of sentence for a first offence for possession of a loaded restricted firearm is between two years less a day and threeyears: R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878. [38] The position of the defence is that an appropriate global sentence in this case would be in the range of two years, beforetaking into account Mr. Brown’s strict bail conditions and before crediting him for the time that he has served in pre-trial custody.

Defence counsel submits that the time spent by Mr. Brown in pre-trial custody at the Don Jail should be credited on a ratio of 1.5:1 inorder to account for the loss of remission and parole elegibility, as well as the harsh conditions that he was subjected to during hisincarceration at that facility. Analysis The Kienapple issue [39] Both Crown and defence counsel submit that count 2 – the offence pursuant to s. 91(1) of the Code – be stayed on the basis ofthe Kienapple principle. I agree.

Accordingly, Count 2 is conditionally stayed. [40] Count 1 charges an offence contrary to s. 95(1) of the Code, for which there is a mandatory minimum sentence for a firstoffence. Count 3 charges an offence under s. 92(1) of the Code, for which there is no mandatory minimum sentence for a first offence,but a minimum term of imprisonment of one year for a second offence. Crown counsel submits that although there are no additionalelements in Count 3 beyond those required for a conviction to lie on Count 1, a stay on Count 3 is not appropriate and that a convictionshould be entered.

The Crown pointed out that if a stay is entered on Count 3 and the accused, at some future date, is found guilty of anoffence under s. 92(1), the mandatory minimum for a second offence would not apply: the accused would be deemed never to have beenconvicted, thereby making the next conviction a first offence. The Crown argues that this cannot have been the intent of Parliament andrelies on the case of R. v. Stephens, [2009] O.J. No. 6102, at paras. 21-24, in support of her position.

The Crown submits that a sentenceof one-and-a-half years on Count 3, to be served concurrently to the sentence imposed on Count 1, would be appropriate. [41] In Stephens, Clark J. observed that the rule against multiple convictions is subject to the clear expression of Parliament to thecontrary, as stated by Dickson C.J.C. in R. v. Prince, (SCC), [1986] 2 S.C.R. 480, S.C.J.

No. 63, at para. 36: In the absence of some indication of parliamentary intent that there should be multiple convictions or added punishment in the event ofan overlap, the particularization of an element ought not to be taken as a sufficient distinction to preclude the operation of the Kienappleprinciple. [42] Clark J. also considered the Court of Appeal’s decision in R. v. Kinnear, (ON CA), [2005] O.J.

No. 2434,198 C.C.C. (3d) 232, where Doherty J.A., at para. 38, stated: Dickson C.J.C. in Prince, at pp. 51-54, further elucidated the legal nexus inquiry by referring to three factors that will defeat any claimthat different offences have a sufficient legal nexus to warrant the application of the Kienapple rule. These factors do bear repeating inthese reasons. First, where the offences are designed to protect different societal interests, convictions for both offences will not offendthe Kienapple rule.

Second, where the offences allege personal violence against different victims, Kienapple will not forecloseconvictions for offences relating to each victim. Third, where the offences proscribe [sic] different consequences, the Kienapple rulewill not bar multiple convictions. [Emphasis added]. [43] Clark J. concluded that Parliament clearly intended to create different punishments with respect to offences committed underss. 92(1) and 95(1) and that convictions can therefore properly lie for both offences.

In addition, the specific intent required under s.92(1) is a further indication of Parliament’s intention to create separate offences. [44] I agree with and adopt Clark J.’s reasons in Stephens. Accordingly, Count 3 will not be stayed. A conviction is entered onthat count. Governing Sentencing Principles [45] According to s. 718 of the Code, the “fundamental purpose” of sentencing is to contribute to “respect for the law and themaintenance of a just, peaceful and safe society” by imposing “just sanctions” that have one or more of the following objectives: (

a) to denounce 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 and to the community. [46] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to thegravity of the offence and the degree of responsibility of the offender.” [47]

Section 718.2 of the Code states that in imposing a sentence, the court must 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 offenceof the offender; (

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 should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders. [48] Both the Crown and counsel for Mr. Brown agree that the principles of denunciation and deterrence must take precedence incases involving the possession of a loaded handgun. In R. v. Danvers (ON CA), [2005] O.J.

No. 3532, 199 C.C.C.(3d) 490 at paras. 77- 78 (C.A.), Armstrong J.A. agreed with the trial judge that “[o]nly the imposition of exemplary sentences will serveto deter criminals from arming themselves with handguns.” Armstrong J.A. continued: There is no question that our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongestpossible terms. The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the communityand must be addressed. [49] In R. v. Brown, 2009 ONCA 563, [2009] O.J.

No. 3908, at para. 33, the Court of Appeal reiterated that deterrence anddenunciation are the primary considerations on sentencing in cases involving handguns: As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took theserious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration. [50] The gravity of offences involving the possession of loaded handguns was graphically described by Molloy J. in R. v. Ferrigon, (ON SC), [2007] O.J. No. 1883, at para. 25 (S.C.J.): Guns are dangerous.

Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loadsa handgun 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 – a wayof life that respects the rule of law to ensure the peace and safety of those who live here.

Aggravating factors [51] The aggravating factors in this case include the following: • The immediate accessibility of the firearm, as Mr. Brown was carrying it on his person; • Mr. Brown was in possession of the gun while driving on a public roadway at a busy time of day and when students were justgetting out of school; • According to his own evidence, Mr. Brown was on his way to an elementary school to pick up his son. He denied that heintended on entering the school while carrying the loaded firearm.

However, leaving the gun unattended in the car on school propertyalso posed a significant risk to the public; • The presence of the gun potentially endangered the lives of everyone with whom Mr. Brown came into contact, including OfficersPershin, Perks and Kung. Mr. Brown maintained possession of the weapon throughout his interactions with P.C. Pershin, which lasted20 to 25 minutes. The gun posed a particular danger to Constables Perks and Kung, who conducted the pat-down search;

• Mr. Brown was in possession of crack cocaine as well as a firearm. As noted by Clark J. in R. v. Dass, [2008] O.J. No. 1161, atpara. 32, the combination of illegal guns and drugs is considered to be an aggravating factor on sentencing. In R. v. Manning, [2007]O.J. No. 1205, at para. 16, Epstein J., as she then was, stated: A further aggravating factor is that Mr. Manning was in possession of crack cocaine either for personal use or for the purposes oftrafficking. Decisions such as R. v. Grant (ON CA), [2006] O.J. No. 2179 and R. v. J.G. [2005] O.J.

No. 4599 havereinforced the obvious fact that drugs and weapons are a deadly combination and have treated it as an aggravating factor when it comesto arriving at a fit sentence. I also note Stinson J.’s observation in R. v. Williams, [2007] O.J. No. 1354 at para. 34 (S.C.) that “the combination of illegal guns anddrugs is a toxic one that is highly volatile and can lead to tragic and fatal consequences”; • The revolver was not the only weapon that Mr. Brown armed himself with that day. He was also carrying a large folding knife. [52] Mr. Brown’s lack of remorse is not an aggravating factor on sentence.

It is merely the absence of a potentially mitigatingfactor. Mitigating factors [53] In terms of mitigating factors, Mr. Brown is still a relatively youthful offender. He was 27 years old at the time of his arrestand is now 30 years of age. He has no prior criminal record. He has been in a stable common law relationship for 13 years and, from allaccounts, is a caring father of his nine-year-old son. He apparently has the potential to have a positive impact on young people, asoutlined in the letter from the program director at Emmanuel Life Management Centre. He has strong family support. Having lost aneye, Mr.

Brown suffers from a disability, which may limit his employment opportunities. [54] Defence counsel submits that a further mitigating factor is the finding by this Court that Mr. Brown’s ss. 8, 9 and 10(

a) and(

b) Charter rights were violated. The defence relies in this regard on the decision of the Supreme Court of Canada in R. v. Nasogaluak,2010 SCC 6, [2010] 1 S.C.R. 206. [55] In Nasogaluak, the Court held that where the police or state misconduct relates to the circumstances of the offence or theoffender, the sentencing judge may properly take the relevant facts into account in determining a fit and proper sentence.

Thecircumstances of a Charter breach that align with the circumstances of the offence or the offender such that they are pertinent to thesentencing regime may be relevant mitigating factors warranting a reduced sentence. This is true as well for state misconduct whichdoes not amount to a Charter breach but which impacts the offender. [56] In the pre-trial application to determine the admissibility of the firearm, knife and crack cocaine, I found that there was aviolation of Mr. Brown’s ss. 8 and 9 Charter rights when he was asked to step out of the car and was subjected to the pat-down search.

The search of his vehicle also constituted a breach of his s. 8 rights. In addition, I found that P.C. Pershin violated Mr. Brown’s ss. 10(a)and (

b) Charter rights when he failed to advise him, after detecting the smell of marijuana, that he was being detained with respect to theoffence of possession of marijuana and to advise him of his rights to counsel. However, I found that the admission of the evidence wouldnot bring the administration of justice into disrepute. [57] During my s. 24(2) analysis, I found that P.C. Pershin did not deliberately breach any of Mr. Brown’s Charter rights. Thevehicle stop was lawful and not part of a ruse. P.C. Pershin pulled over Mr. Brown’s car because of the tinted windows (an offence thatMr.

Brown ultimately pleaded guilty to) and for no other reason. There was no question that upon approaching the vehicle, P.C. Pershindetected the smell of marijuana. There was no suggestion that P.C. Pershin fabricated his evidence in this regard in order to detain Mr.Brown arbitrarily or to conduct an unlawful search. [58] P.C. Pershin acted in good faith in the sense that he believed that he had the lawful authority to search the car pursuant tohis investigative detention of Mr. Brown. Although P.C.

Pershin’s mistake as to the law in this regard was of concern, I found that thatconcern was ameliorated by the fact that P.C. Pershin actually had reasonable and probable grounds to arrest Mr. Brown for thepossession of marijuana. Although the officer did not subjectively believe he had the grounds to arrest him, such grounds, from anobjective point of view, did in fact exist. Had P.C. Pershin arrested Mr. Brown for possession of marijuana, there would have been noviolation of Mr. Brown’s ss. 8 or 9 Charter rights: the search of the car and P.C.

Pershin’s request that he step out of the car for thatpurpose would have been lawful, as would the pat-down search, which led to the discovery of the knife and handgun. [59] P.C. Pershin acted with restraint in searching the car and restricted that search to the driver’s side of the vehicle. He did notsearch the trunk. No evidence was obtained as a result of this search. [60] The pat-down search was conducted within the parameters of R. v. Mann, 2004 SCC 52, [2004] 3. S.C.R. 59, and notconducted in an abusive fashion.

The police also followed standard procedure with respect to the search incidental to arrest. [61] The breaches of Mr. Brown’s ss. 10(

a) and (

b) Charter rights were not causally connected to the discovery of the knife,firearm or crack cocaine. In any event, P.C. Pershin did not deliberately breach Mr. Brown’s rights to counsel. He had lawfully detainedthe accused with respect to the HTA offence at the time that he smelled marijuana, and then became distracted by the CAIA investigationwhen Mr. Brown produced the false insurance card. Unfortunately, the officer did not apply his mind to the change in the nature of theaccused’s detention once he had determined that he would be searching the car, which entailed asking Mr. Brown to step out of thevehicle.

As a result, P.C. Pershin failed to advise Mr. Brown that he was being detained with respect to the marijuana offence (althoughhe spoke to Mr. Brown briefly about the smell of marijuana coming from the car) and also failed to advise him of his s. 10(

b) rights. P.C. Pershin then proceeded to investigate the provincial offences first, a decision that, in hindsight, he regretted. [62] P.C. Pershin advised Mr. Brown that he was under investigative detention when he asked him to step out of the vehicle. Almost immediately thereafter, P.C. Kung told Mr. Brown that the detention was with respect to the marijuana investigation. The delayin advising the accused of his rights to counsel was justified as a result of officer safety concerns, which were shared by Constables Kung

and Perks. After the seizure of the knife and gun, P.C. Kung advised Mr. Brown of the reason for his arrest, cautioned him and gavehim his rights to counsel. Mr. Brown was able to exercise those rights after his arrival at the police station. [63] In

summary, the conduct of the officers did not in any way suggest a wilful or reckless disregard for Mr. Brown’s Charterrights. The breaches were neither deliberate nor egregious and, given all of the circumstances, I do not find that they should beconsidered as mitigating factors in this case. The Effect of the Smickle Decision [64] In Smickle, Molloy J. stated: A declaration shall issue that the reference to a minimum punishment of imprisonment for a term of, “in the case of a first offence, threeyears” as set out in s. 95(2)(a)(

i) of the Criminal Code is inconsistent with the Charter and of no force or effect. (para. 162) [65] In R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 6444, Strathy J., as he then was, noted that there are strong policyreasons for judges to follow the decisions of judges of coordinate jurisdiction, absent cogent reasons to depart from them. Heaccordingly followed the Smickle decision in sentencing the accused before him. At paras. 42-44, he stated: McLachlin C.J.C. [in R. v.

Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96] expressly rejected the notion that, after a declaration of invalidityin one case, the courts should continue to consider the issue on a case-by-case basis, requiring the accused to seek a constitutionalexemption in the circumstances of his or her particular case. She noted, at paras. 72-73, that this would create uncertainty for accusedpersons, and for Parliament, concerning the precise scope of the law. It would also lead to uneven and unequal application of the law.

The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons todepart from them: see Re Hansard Spruce Mills Ltd, (BC SC), [1954] 4 D.L.R. 590 (S.C.); R. v. Northern Electric Co.Ltd., (ON SC), [1955] O.R. 431, [1955] 3 D.L.R. 449 (H.C.) at para. 31. Reasons to depart from a decision, referred toin Hansard Spruce Mills, include (

a) that the validity of the judgment has been affected by subsequent decisions; (

b) that the judgeoverlooked some binding case law or a relevant statute; or (

c) that the decision was otherwise made without full consideration. Thesecircumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it wasplainly wrong. I am not satisfied that the decision in Smickle is plainly wrong. In a constitutional case, where a statute has been declared invalid by a judge of coordinate jurisdiction, there is strong reason for judicialrestraint on the part of a subsequent judge, for the reasons identified by Chief Justice McLachlin in Ferguson.

To create a judicialexemption, based on the facts of the particular case before me, would create uncertainty and unfairness. This is particularly so becausean appeal of both Nur and Smickle is to be heard by a single panel of the Court of Appeal next month. [I note that these cases have nowbeen argued and the Court of Appeal’s judgment is currently under reserve.] [66] Strathy J. then proceeded to sentence Mr. Scarlett on the basis that, pursuant to Smickle, the minimum three-year penaltyunder s. 95(2)(a)(

i) is of no force or effect. I intend to do the same in this case with respect to Mr. Brown. I find no reason to departfrom the decision in Smickle; rather, judicial comity persuades me that Smickle should be followed. The Range of Sentences in the Absence of a Mandatory Minimum [67] In Nur, Code J. undertook an extensive analysis of the range of sentences for convictions of a first offence of possession ofa loaded handgun, when there were no additional convictions, such as for drug offences, for the period between 1998 and May 1, 2008,when the three-year mandatory minimum sentence came into force.

He concluded that the range was between two years less a day andthree years’ imprisonment. At para. 44, he observed that “the bottom end of the above range was generally reserved for youthful firstoffenders with good rehabilitative prospects who plead guilty, and the higher end of the range was generally reserved for offenders withprior records who proceed to trial.” [68] Code J. noted that the “range” of two years less a day to three years imprisonment suggested by the cases reviewed by himwere precisely that, a “range.” A “range” is simply a flexible guideline for the normal case.

It assists in achieving “parity”, but withoutsacrificing “proportionality.” Departures from the “range” can be justified by particularly strong aggravating or mitigatingcircumstances: at para. 45. [69] Nur, who had just turned 19 at the time of the offence, was a young first offender who pleaded guilty and had rehabilitativepotential. There was therefore reason to keep him out of the federal penitentiary, as long as the appropriate sentencing range permittedsuch a result.

A sentence of two years less a day would also have given Nur access to a full appellate hearing where “humanitarian andcompassionate” grounds could be raised in relation to any deportation order flowing from his conviction and sentence.

However, aftertaking into account the need for exemplary and denunciatory sentences with respect to the possession of loaded handguns, and theaggravating factors in Nur’s case, Code J. concluded that a two-and-a-half year term of imprisonment would have been a fit and propersentence prior to the introduction of the mandatory three-year minimum sentence. [70] The aggravating factors in Nur’s case included his possession of the gun outside a community centre, his acting as part of agroup in a threatening manner that caused the staff to lock down the premise, his fleeing from police, throwing the gun away in a publicparking area, and use of an oversized magazine with the gun.

However, Code J. also found that it could not be determined exactly whenNur acquired the gun and in what circumstances. Although he gave no weight to Nur’s in dock statement that “some guys” at theentrance to the Centre had asked him to hold the gun and to run if the police came, Code J. nevertheless found that the Crown had failedto prove that Nur had brought the gun to the Centre, that he participated in any threats towards a youth who went into the Centre, or howlong he participated in the siege of the Centre.

As Code J. found no s. 12 Charter breach, he sentenced Nur on the basis that the three-year mandatory minimum sentence remained intact and imposed a sentence of 40 months. [71] A distinguishing factor between Nur and the present case is that Mr. Nur, who was substantially younger than Mr. Brown,pleaded guilty. Mr. Brown, having had a trial, does not receive the benefit of that mitigating factor. In addition, unlike Nur, Mr. Brown

has been convicted of possession of crack cocaine. As earlier noted, the combination of illegal guns and drugs is an aggravating factoron sentence. Mr. Brown has also been convicted of the additional offence of carrying a concealed weapon, that is, the knife. [72] Aggravating factors in Nur that are absent in the present case include Nur’s flight from police, the oversized magazine, andthe fact that he threw away the gun in a public area. However, Mr. Brown chose to drive around the streets of Toronto in his motorvehicle at rush hour with the loaded firearm down his pants.

Had he not been intercepted by the police, he would have attended at anelementary school. Mr. Brown also put at risk the lives and safety of the three police officers with whom he interacted. [73] In Scarlett, the accused was found guilty after trial of possession of a loaded prohibited firearm. The police, upon enteringa premise during the execution of a search warrant, observed the accused in the hallway. The accused turned and fled while clutchinghis waist. The officers gave chase and brought him to the ground. A loaded .38 calibre handgun was found inside the accused’s pants.

The serial number had been obliterated. A total of 3.9 grams of crack cocaine was found in the premise. Strathy J. found that theaccused’s possession of the handgun was, in fact, associated with trafficking in cocaine. The accused was 22 years old at the time of theoffence and had no prior record.

His behaviour while on bail was described as “commendable.” He was a permanent resident in Canadaand a sentence of more than two years less a day could impact that status. [74] Strathy J. imposed a sentence of three years but stated that had the mandatory minimum sentence not been struck down, hewould likely have imposed a lengthier sentence, given the aggravating circumstances. As stated in R. v.

Morrisey, 2000 SCC 39, [2000]2 S.C.R. 90, at para. 75, mandatory minimum sentences do not become the “standard sentence”; rather, they act as the “inflationaryfloor”, setting a new minimum punishment applicable to the so-called “best” offender whose conduct is caught by the provisions. [75] Counsel for Mr. Brown submits that Mr. Brown should receive a shorter sentence than Mr. Scarlett, given Mr. Scarlett’sflight, the obliterated serial number and the link between the gun and trafficking in cocaine, as opposed to simple possession of thatdrug. However, unlike Mr. Brown, Mr.

Scarlett was not carrying the gun in a motor vehicle on public roadways in rush hour. He wasalso not found in possession of any other weapon. [76] In determining the appropriate sentence in this case, I have, in addition to the cases already referred to in these reasons,considered all the authorities provided to me by counsel, including: R. v. Grant (2006), (ON CA), 81 O.R. (3d) 1,209 C.C.C. (3d) 250; R. v. S.C. [2006] O.J. No. 3893 (C.A.); R. v. Dene, [2010] O.J. No. 5193 (S.C.J.), upheld on appeal at 2010 ONCA796, [2010] O.J. No. 5012; R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614; R. v.

Lawson, 2012 ONSC 1305, [2012 O.J. No.2211; R. v. Velez-Lau, 2011 ONSC 4805, [2011] O.J. No. 3710; and R. v. Harutyunan, 2012 ONSC 58, [2012] O.J. No. 177, upheld at2012 ONCA 637, [2012] O.J. No. 4417. [77] As the case law demonstrates, sentencing is an individual case-specific process that requires the assessment of manyfactors in order to determine the most appropriate sentence in the circumstances. While the principles of denunciation and deterrencemust take precedence in cases involving the possession of a loaded handgun, the principle of rehabilitation cannot be overlooked.

Mr.Brown has no prior criminal record, is in a stable relationship, takes care of his son and has the support of his family, all of which speakto his potential rehabilitation. Having been the victim of gun violence himself, Mr. Brown suffers from a disability; namely, the loss ofan eye. [78] Bearing in mind the aggravating and mitigating factors, the principles of sentencing as set out in ss. 718 to 718.2 of theCode, and the submissions of counsel, I find that the appropriate global sentence in this case is three years, less credit for the time thatMr.

Brown was on bail under house arrest and his time spent in pre-trial custody. Credit for time spent on bail while under house arrest [79] There should be some recognition of the time Mr. Brown spent under house arrest. There is no fixed formula. In all of thecircumstances and in accordance with the principles in Downes, I find that Mr. Brown is entitled to 5 ½ months credit for the 21 monthsthat he was under house arrest as a condition of his judicial interim release. Credit for time spent in pre-trial custody [80] Defence counsel submits that Mr.

Brown should be given enhanced credit on a ratio of 1.5:1 for the 148 days that he spent inpre-trial custody at the Don Jail. The onus is on Mr. Brown to show, on a balance of probabilities, that he deserves enhanced credit. Iam satisfied that he has met that onus. [81] The evidence before the court indicates that while in custody at the Don Jail, particularly since his bail was revoked on April19, 2013, Mr. Brown has faced relatively harsh conditions. There have been an inordinate number of lockdowns; access to the yard or“fresh air” has averaged only five times per month; there have been days when Mr.

Brown has not been able to shower because ofinadequate facilities; during the first 60 days of his incarceration, he was triple bunked on 11 nights and double bunked the rest of thetime in a cell that measures 6 feet by 9 feet. As a result of various food allergies, Mr. Brown has, on occasion, not been able to eat themeals served to him. He is currently receiving antibiotics for an infection around his prosthetic eye, apparently caused or exacerbated bylack of access to the eye drops he uses to lubricate the eye. [82] In addition, there is no evidence of any misconduct by Mr. Brown while at the Don Jail.

He has no prior criminal record andthere is no reason to believe that he would not be eligible for early release due to earned remission or parole eligibility. [83] In R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, the Court of Appeal dealt with the issue of whether a sentencing judgehas the discretion under s. 719 (3.1) of the Code to give enhanced credit for pre-sentence custody in order to account for the offender’sloss of remission and parole elegibility while in pre-sentence custody. Cronk J.A., writing on behalf of the Court, recognized that suchdiscretion exists.

In reaching this conclusion, she noted that the legislation does not require “exceptional circumstances” to justifyenhanced credit. [84] In all of the circumstances, I exercise my discretion and grant Mr. Brown credit of 1.5 days for each of the 148 days he has

spent in pre-trial custody at the Don Jail. He is therefore credited with having served 222 days as a result of his incarceration at that facility. [ 85 ] Defence counsel did not seek enhanced credit for the 98 days that Mr. Brown spent in pre-trial custody at Maplehurst. Accordingly, Mr. Brown is credited with having served a total of 320 days in pre-trial custody. Conclusion [ 86 ] I have concluded that a global sentence of three years is fit and proper. I have also concluded that Mr. Brown is to be credited with having served 320 days of pre-trial custody, which reduces the sentence to two years and 45 days.

Allowing for a further credit of 5 ½ months for time spent under house arrest, the sentence imposed is 20 months. That sentence is broken down as follows: Count 1: 19 months Count 3: 12 months concurrent Count 5: 12 months concurrent Count 6: 1 month consecutive Count 9: 1 month concurrent [ 87 ] Count 2 is stayed. Ancillary Orders

Section 109 [ 88 ] There will be a mandatory prohibition order under s. 109 of the Code . Mr. Brown is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, or explosive substance for a period commencing today and ending ten years from the day of his final release from custody on the sentence that I have just imposed. In addition, he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life. DNA Order [ 89 ] Section 95(1) is a “secondary designated offence” under s. 487.04 of the Code .

Taking into account the serious nature and circumstances of the offence, and given the minimal adverse impact on Mr. Brown’s privacy or security of the person, it is in the interests of the administration of justice to make a DNA order under s. 487.051(3). Accordingly, Mr. Brown is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis. Forfeiture order [ 90 ] I have already signed an order of forfeiture with respect to the firearm, ammunition and knife. GARTON J. Released: July 3, 2013 CITATION : R. v.

Brown, 2013 ONSC 4230 COURT FILE NO.: 0152/12-12-12-70000276-0000 DATE: 20130703 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – JAFSA BROWN

REASONS FOR SENTENCE GARTON J. Released: July 3, 2013