 |
| John L. Hill |
For example, in R. v. Samaniego, 2020 ONCA 439, the offender threatened a bouncer at a club, showed a firearm and made gun-like threatening gestures with his fingers. Even though he was a youthful first offender with family support, the sentence imposed was four years.
Similarly, in R. v. Mansingh, 2017 ONCA 68, a youthful first offender discarded a loaded firearm while being chased by police officers and incurred a 43-month sentence. In R. v. Mahamet-Zene [2018] O.J. No. 1003, a youthful first offender was found to have possession of a loaded gun in a public place. He was sentenced to 41 months despite having a positive pre-sentence report, a supportive family and having made significant progress while on bail. R. v. Mohammed, 2017 ONCA 691, involved a youthful first offender who pleaded guilty to possession of a handgun, dangerous operation of a motor vehicle and possession of marijuana for the purpose of trafficking. He had tossed away the handgun during a hazardous high-speed pursuit. The Court of Appeal upheld a sentence of 5.5 years. The Court of Appeal upheld a sentence of four years and six months in R. v. Smith, 2023 ONCA 620, where the offender pleaded guilty to offences involving possession of a firearm, breaching a prohibition order and possession of cocaine for the purposes of trafficking.
Dumitru Ochievschi: ISTOCKPHOTO.COM
Rehan Habib, 19, was charged with possessing a prohibited, loaded handgun and brandishing it during an altercation with a pizza store employee who had refused to serve him. He served 19 days in custody before being released on bail. It took three years for Habib to get to court. In that period, he dissociated himself from a negative peer group, graduated from high school and enrolled in college. He found a job and supported his family. When he went to court, he pleaded guilty to three gun possession charges. Superior Court Justice Robert F. Goldstein sentenced Habib to four years imprisonment (R. v. Habib, 2023 ONSC 6897). Chief Justice Tulloch’s reasons pertain to the appeal of that sentence.
The Chief Justice agreed with the trial judge that a conditional sentence and house arrest would be inappropriate and would not fit well with the sentencing principles of denunciation and deterrence for gun-related crimes (R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.))
In finding error with the sentence imposed, the Court of Appeal noted the trial judge had assumed Habib intended to shoot the victim without allowing the accused person to be heard on that matter. Moreover, and it seems more importantly, the trial judge overlooked principles governing the sentencing of first-time youthful offenders, especially the need to practice restraint, prioritize rehabilitation and account for the appellant’s immaturity. The trial judge failed to consider the consequences of family separation that would accompany the loss of the breadwinner. The judge also overlooked principles governing sentencing for multiple offences arising from the same circumstances. These errors allow for appellate intervention (R. v. Lacasse, 3015 SCC 64).
The Court of Appeal substituted a sentence of three years, allowing Habib to apply for parole after one year in prison.
The importance of the Habib appeal may be that lower courts will notice the stress placed on the necessity of considering restraint as a sentencing principle and prioritize rehabilitation “as the paramount sentencing objective.” Focusing on denunciation and deterrence must give way to rehabilitation considerations and specific deterrence. Young adults have reduced moral culpability, and incarceration has a harsher impact on them (R. v. Hills, 2023 SCC 2; R. v. Bertrand Marchand, 2023 SCC 26). Mere reference to these considerations is not enough.
Although the impact of a sentence on other family members is a consideration in sentencing, it cannot overwhelm other sentencing principles (R. v. Dent, 2023 ONCA 460). The case of R. v. Spencer, 72 O.R. (3d) 47 (C.A.), is authority for the proposition that sentencing courts should “preserve the family as much as possible.”
Finally, the Court of Appeal imposed sentences that would run concurrently. The trial judge had made the more serious charge run consecutive to sentences on the other charges. When all counts are of the same nature, concurrent sentences ought to be imposed.
The principles enunciated in the chief justice’s reasons should become the standard when trial courts sentence young first-time offenders. Instead of looking solely at the deed to be denounced (the “what”), it is also important to consider the offender and his or her circumstances (the “why”) in determining an appropriate sentence.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.