R v Kandhai, 2020 ONSC 3580

The Court sentenced a Black offender to 49 total months for possession of a prohibited firearm with accessible ammunition and for breach of a firearms prohibition order. The Court took into account a detailed history report which considered his life circumstances including growing up in poverty and experiencing anti-Black racism from a young age. The Supreme Court of Canada’s invaluable guidance in this area, albeit in the context of Aboriginal offenders, informed the sentence.

Indigenous Law Centre CaseWatch Blog

Mr. Jeremy Kandhai has a long criminal record for a 25-year-old man. The first circumstance identified in a pre-sentence report was that Mr. Kandhai grew up in low income, subsidized housing. The second circumstance was that anti-Black harassment and constant police presence continued throughout his childhood. The report further suggested that he was engaging, self-aware and took accountability for his actions. The principle argument for a reduction of the sentence normally imposed for these crimes is premised on Mr. Kandhai having a lower degree of responsibility as a result of the poverty, discrimination and anti-Black racism he has endured over his lifetime.

The Court relied on systemic factors and rehabilitation as key importance. The sum total of influences upon an individual, including poverty and racial bias, has helped form the person who committed the crime (R v Gabriel, 2017 NSSC 90). Aboriginal offenders are specifically mentioned in Section 718.2(e) of the Criminal Code, the provision commanding that incarceration must be used with restraint. The Court nonetheless confirmed that at its root, like Aboriginal discrimination, anti-Black racism and poverty is first and foremost a societal problem.

The question of the impact of past discrimination and disadvantage ought to be viewed as a matter of context, not one requiring proof of direct causation. He was not compelled to make the choice he did, but his alternatives were circumscribed by his environment and the dearth of opportunities that were open to him. Mr. Kandhai’s moral responsibility ought to be weighed in light of the gravity of the offence.

However, the potential for human carnage represented by a loaded handgun is extreme. His fear of being victimized together with the violent deaths of people around him were a factor in arming himself. It is well established that denunciation and deterrence are the paramount sentencing principles for these offences (R v Graham, 2018 ONSC 6817). Mr. Kandhai understood that it was not necessary to arm himself with a loaded handgun and that it was a poor choice. The prospect of the offender being rehabilitated is better than his offence or his criminal record would indicate. The Court sentenced Mr. Kandhai to 49 months total which includes all credit due. 38 months was attributed to the firearms offence and 11 consecutive months was contributed for the firearms prohibition breach.