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Strong sanctions needed to combat violent conduct, says judge

|Written By Shannon Kari - Law Times

TORONTO — A Superior Court judge has handed down what is believed to be thelongest-ever sentence in Ontariofor someone convicted of illegal possession of a loaded firearm.

(Photo: Paul Lawrence) Defence counsel Anna Martin says some of the Crown's tactics used to prove gang affiliation were 'surreal.'
(Photo: Paul Lawrence) Defence counsel Anna Martin says some of the Crown's tactics used to prove gang affiliation were 'surreal.'
Justice Ian Nordheimer imposed an eight-year and four-month sentence against Jermaine Grant, in an unusual proceeding where the Crown played a hip-hop video in court as part of its submission that the defendant was part of a northwest Toronto gang.

"I am left with the overriding assumption that this community truly believes that the possession of handguns represents conduct that is fundamentally inconsistent with our collective view of what constitutes a free and safe society, said Nordheimer in his Oct. 19 judgment.

"If that assumption is correct, then people who repeatedly violate that basic tenet of our society and expose the rest of us to the significant risks associated with such conduct must face meaningful consequences. To impose lesser penalties not only undermines the importance of that belief, it runs the very real risk of turning the sanctions for such actions into nothing more than a licensing fee for bad behaviour," said Nordheimer.

Grant, 22, was convicted by a jury in August of illegally possessing a loaded semi-automatic handgun after a police pursuit in the Rexdale section of Toronto. He was also convicted of breach of recognizance and possession of a small amount of crack cocaine. The sentences for those offences were imposed concurrently to the gun convictions.

Grant, who the Crown alleged was a member of the Doomstown Crips street gang, had a lengthy youth record and a 2002 adult conviction for possession of a restricted weapon. He was subject to four separate weapons prohibition orders at the time of his arrest on his latest charges.

Crown attorney Matthew Boswell argued for the maximum 10-year term to be imposed against Grant, but he was clearly pleased with the sentence after a proceeding that was widely reported in the local Toronto media.

"I think this will send a very strong message, coming on the heels of the 'summer of the gun,'" said Boswell after the sentencing, in reference to the wave of shootings in Toronto this year.

Defence lawyer Anna Martin of Pinkofskys asked for a total sentence of four years, including credit for pre-trial custody. She noted that the equivalent of a 22-month sentence was imposed against Grant for his 2002 gun possession conviction and submitted he should receive no more than double that sentence under the "jump effect" or "step principle."

Nordheimer rejected her argument. A four-year term would "patently fail" to achieve sentencing objectives, said the judge, suggesting the "jump effect" applies only when rehabilitation is a significant factor.

He noted that Grant told police that "jail and death" are the only two certainties in life.

"This is not the sentiment of a person who is looking to change his ways," said the judge.

The Crown ordered a copy of Nordheimer's ruling the same day it was issued and Martin said she expects it will be used by prosecutors in other gun possession cases. The defence lawyer suggested, however, the ruling may only have application in proceedings with repeat offenders.

During the sentencing hearing the Crown played an underground video called "Rapsheet DVD," which showed disguised local hip-hop performers flashing weapons, "gang signs" and allegedly naming gang members who are dead or in jail. A "shout out" to "Bugs" was supposed to be a reference to Grant, said Boswell, as part of his submission that the alleged gang membership should be an aggravating factor in sentencing.

"It was surreal," said Martin, about the prosecution's attempt to use a hip-hop video to prove membership in a gang.

Nordheimer noted that the Crown "expressly avoids any reliance" on the new criminal organization section of the Criminal Code and to prove the existence of any aggravating factor, it must do so beyond a reasonable doubt.

The Superior Court judge was critical of the gang evidence, which he described as hearsay and in some cases double hearsay. It included the video, testimony by an officer based on information from "unnamed members of the community," and the fact Grant wore blue clothing, which is supposed to be the colour associated with the Crips. (Coincidentally, the officer testifying as an expert on street gangs was wearing a dark blue suit and a blue Toronto police association tie as part of a job action in its contract dispute with the city).

"One cannot take various individual pieces of unreliable hearsay evidence and, by adding them together, have each unreliable piece serve to buttress other unreliable pieces and thereby purport to have a sum total that amounts to reliable hearsay evidence," said Nordheimer.

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