minicounsel

DATE: 20240228 DOCKET: C67858

Fairburn A.C.J.O., MacPherson and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Christopher Husbands Appellant

Counsel: Stephanie DiGiuseppe, Dirk Derstine and Heather Gunter, for the appellant Michael Bernstein, for the respondent

Heard: May 15, 2023

On appeal from the sentence imposed by Justice Brian P. O’Marra of the Superior Court of Justice on November 29, 2019, with reasons reported at 2019 ONSC 6824, 451 C.R.R. (2d) 117.

Fairburn A.C.J.O.:

1On June 2, 2012, the appellant pulled out a fully loaded semi-automatic handgun and opened fire in the food court at the Eaton Centre in downtown Toronto. There were more than 700 people in the food court at the time. When the shooting ended, one man lay dead on the floor, another was critically injured and would die 9 days later, a 13-year-old boy was grievously injured from a shot to the head, another 4 people suffered from various other gunshot wounds, and a pregnant woman lay trampled by the frightened crowd who had run for safety when the sound of shooting erupted.

2The appellant was originally tried on several counts, including two counts of first-degree murder. On December 17, 2014, a jury found him not guilty of first-degree murder, but guilty of two counts of second-degree murder and the other counts. In 2017, the appellant succeeded on appeal and this court ordered a new trial: R. v. Husbands, 2017 ONCA 607, 353 C.C.C. (3d) 317, leave to appeal refused, [2017] S.C.C.A. No. 364.

3At the subsequent trial, by virtue of the earlier acquittals on first-degree murder, the appellant was tried for second-degree murder, again along with the other offences. On February 19, 2019, a jury returned verdicts of:

not guilty to second-degree murder, but guilty to two counts of manslaughter
guilty to five counts of aggravated assault
guilty to one count of criminal negligence causing bodily harm
guilty to one count of intentionally discharging a firearm while being reckless as to the life or safety of another person

4A lengthy sentencing hearing ensued. The trial Crown sought life sentences on the two manslaughter counts and the maximum sentences on the seven remaining counts, to run concurrently. In the alternative, the Crown sought a global sentence of 25 years less credit for time served. In contrast, the defence sought a global sentence of 12-15 years less credit for time served.

5On November 29, 2019, the appellant was sentenced to life imprisonment for the manslaughter convictions with parole eligibility set at the statutory minimum of seven years: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120(2) (“CCRA”). The trial judge also imposed concurrent fixed-term sentences on the other counts. The longest one was a maximum 14-year term for the aggravated assault involving the child who was shot in the head. The trial judge credited 10 years for pre-sentence custody toward the fixed terms, leaving 4 years of the 14-year sentence left to be served.

6While the defence originally appealed from the convictions and the Crown originally appealed from the acquittals on second-degree murder, they both subsequently abandoned those appeals. Accordingly, this is an appeal from sentence only.

7The appellant contends that the trial judge committed several errors, which fall into the following four overarching categories:

(i) failing to properly apply the legal framework for considering social context evidence (ii) applying the wrong test for determining whether the appellant’s PTSD was linked to his criminal conduct (iii) misapplying the test for delayed parole and failing to grant a meaningful remedy for harsh pre-trial conditions and Charter breaches (iv) imposing a demonstrably unfit sentence

8The appellant says that this court should set aside the life sentences and impose a fixed term of 15 years’ imprisonment.

9For the reasons that follow, I would dismiss the appeal.

B. Background

(1) Introduction

10On June 2, 2012, the appellant went to the Eaton Centre with his girlfriend. He was wearing a black satchel strapped across his body. After shopping for a while, the appellant and his girlfriend went to the food court. It was early evening and there were between 725 and 750 people in the food court and over 4,000 in the Eaton Centre.

11Everything that ensued over the next several minutes was caught on videotape. It is chilling to watch. It shows the appellant standing with his back to a takeout food counter when he sees five young men descending the escalator into the food court. After they walk past him, he pulls out his gun and fires in their direction.

12Notably, about three months earlier, in February 2012, two of those young men – brothers Nixon and Nisan Nirmalendran – were involved in a very serious attack on the appellant. As the earlier attack formed an important part of the appellant’s defence, I will discuss it now before detailing the unfolding of events on June 2, 2012 and their aftermath.

(2) February 2012 attack on the appellant

13On February 28, 2012, the appellant went to an apartment on Gerrard Street with the intention of meeting up with someone. Unexpectedly, when he arrived, a group of men were at the apartment. This group of men bound and stabbed the appellant. He was eventually left alone, and was able to untie himself and stumble into the street. There, a good Samaritan found him bleeding and got him medical assistance. The appellant was seriously injured. He sustained a facial fracture and about 20 superficial stab wounds to his head, face, neck, and hands. He later provided various explanations for the attack to different people ─ explanations ranging from the fact that he was sleeping with the mother of his friend to mistaken revenge for a home invasion robbery.

14The police investigated the matter, but the appellant was uncooperative with them. Indeed, he told the police that he did not know who had attacked him or why he had been attacked. Even following the Eaton Centre shooting, the appellant continued to deny that he could identify any of his attackers and specifically denied that Nixon or Nisan Nirmalendran had been involved in his attack.

15It was not until the appellant testified at his first trial that he explained for the first time that Nixon and Nisan Nirmalendran had been among his attackers in February 2012. Even then, he maintained that he did not know for certain why he was attacked. He testified that he could not tell the police about his attackers’ identity because of a “safety concern” that could come from naming them. This “code of silence” was addressed at trial by Dr. Marta-Marika Urbanik, an urban ethnographer with expertise on racism experienced by Black Canadians in Toronto. She authored an Impact of Race and Culture Assessment (“IRCA”) report. In that report, she explained that the code of silence is a system that is, in part, predicated upon fear of retaliation for cooperating with authorities when one has been victimized or seen victimization.

(3) Unfolding of events on June 2, 2012

16There was no evidence at trial suggesting that the appellant expected to see the Nirmalendran brothers at the Eaton Centre on June 2, 2012. He testified that the reason he took the semi-automatic firearm to the Eaton Centre that day was that he had been asked by a man named “Gaza”, who had since died, to hold the gun for him. According to the appellant, it was not unusual to be asked to hold a gun for someone else. The Crown suggested to the appellant in cross-examination that he took the gun to the Eaton Centre because he wanted to exact revenge on Nisan and Nixon Nirmalendran. The appellant specifically and unequivocally rejected that suggestion.

17The appellant spotted the Nirmalendran brothers that fateful day at 6:22 p.m. as they, along with three other young men, descended the escalator into the food court. The videotape does not show any interaction between those men and the appellant. Even so, the appellant testified at trial that as the men walked by him, he heard one of them say “look who’s there”, or something similar, and then “shoot him”. He testified that he then saw Nisan Nirmalendran put his hand into his pocket. As I will discuss, the appellant’s evidence on this point ─ both the comments he overheard and what he saw ─ formed the factual foundation upon which the partial defence of provocation was left with the jury.

18In contrast, the appellant’s then-girlfriend testified that she heard the appellant yell out “what”. One of the men in the group of five also heard a man yell out, “what’s up”. According to that witness, the man who yelled looked “fishy”.

19It is only after the five men walked past the appellant that he is seen on video pulling the gun out of his satchel, using both hands to aim the gun, walking toward his victims as they walked away, and opening fire toward them. Nisan Nirmalendran, along with two of the other men, were able to escape the gunfire. Ahmed Hassan and Nixon Nirmalendran, ages 24 and 22 respectively, were not so fortunate. When the barrage of bullets ended, Ahmed lay dead on the food court floor. Nixon would die nine days later at St. Michael’s Hospital.

20Six innocent bystanders were also injured:

Connor Stevenson, a 13-year-old boy, was shot in the head
Tasnuva Mahmood was shot in the leg
Nicholas Kalakonis was shot in his upper thigh
Hanna Kim was shot in the finger
Qin Chen had a bullet graze her stomach
Kessia Frederick, who was pregnant, was trampled by the crowd as everyone attempted to exit the food court

21The appellant fired 14 shots in total before emptying the cartridge and then making good his escape.

(4) Events following the shooting

22Two days later, the appellant turned himself in to the police, but not before he had disposed of all evidence. This included the handgun, which was never recovered despite an extensive police search.

23After his arrest, the appellant rekindled a relationship with his former girlfriend, sending her over 27 letters from jail. In a letter dated August 20, 2012, he wrote “[h]ey gorgeous”, and made the following comments:

“I am in jail because these bitch ass [n---] wanted to kill me over the most stupid thing that they made up more excuses to justify their shit.”
“I told these fucking goofs that this shit will lead to no good.”
“I’m going to be persecuted in court because of these brainless goofs that calls themselves gangsters. I didn’t even want to do these guys anything beside open their eyes and show them the light.”
“Trust me, if I get convicted and I see any of those guys here best believe I’ll punish them for fucking my life up. Like I tried to tell them before, stabbing me was soft.”
“[A]nd if that is the case they better hope I don’t get convicted because it’s on when I see them in here. They better be willing to kill me without their big crowds the same way when they’re by themselves.”

C. The Trial

(1) The issues at trial

24To understand the sentencing decision in this case and the issues raised on appeal, it is first necessary to understand the routes to liability, because this provides the context within which the sentencing decision was made. Most importantly, it is necessary to understand, to the extent possible, the basis upon which the jury reached the manslaughter verdicts.

25Despite the number of different charges, the trial itself was not that complex. This is reflected in the jury charge, which left the jury with surprisingly few issues to deliberate upon. This is because no one disputed that the appellant was the shooter or that he had caused the two deaths and all the other various injuries.

26The jury was instructed to first consider the appellant’s primary defence that he was not criminally responsible (“NCR”) because he was in a dissociative state at the time of the shooting. Had the appellant satisfied the jury on a balance of probabilities that he was NCR at the time of the shooting, that would have been the end of their deliberations. However, by virtue of their guilty verdicts, the jury was clearly not satisfied that the appellant was NCR when he shot the gun. Accordingly, they had to move on in their deliberations.

27The jury was instructed that if the appellant was not NCR, then they had to decide whether he was guilty or not guilty on each count. To this end, they were told that the only real issue for their consideration was whether the Crown had proven the mens rea for the offences beyond a reasonable doubt. As for the two counts of second-degree murder, the jury was told that they had to be satisfied beyond a reasonable doubt that the appellant either meant to kill his victims when he fired the gun (s. 229(a)(i) of the Criminal Code), or that he meant to cause them bodily harm knowing that he was likely to cause their death and being reckless as to whether death ensued or not (s. 229(a)(ii) of the Criminal Code). The jury was also instructed on transferred intent, with the trial judge explaining that if the jury found that the appellant had mistakenly killed Ahmed Hassan when he had intended to kill the Nirmalendran brothers, then his intention directed at the brothers could transfer to complete the offence of murder in relation to Ahmed Hassan.

28The jury was further instructed that, when determining whether the appellant had either of the intentions for murder, they should consider all of the evidence. This included evidence related to: (1) the appellant’s symptoms of post-traumatic stress disorder (“PTSD”); (2) the appellant’s fear of seeing the Nirmalendran brothers at the Eaton Centre; (3) any words that may have been uttered just before the shooting; (4) expert evidence regarding biological responses to stress; and (5) the reason the appellant gave for carrying a loaded and concealed handgun when he went to the Eaton Centre that day. The jury was also specifically instructed to consider the speed at which the events unfolded and whether they had a reasonable doubt about whether that speed may have affected the appellant’s ability to think through his actions “as opposed to reacting instinctively to unfolding events.”

29If the jury was satisfied beyond a reasonable doubt that the Crown had proven the mens rea for each offence, then they would bring back verdicts of guilt on each of the counts, subject to one caveat as it related to the murders. That caveat constitutes the third overarching issue that was left for the jury’s consideration: provocation.

30Provocation is a partial defence to murder which recognizes that even people who are normally law-abiding citizens have a breaking point: R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 105. The jury was instructed to only consider provocation if they had already satisfied themselves beyond a reasonable doubt that the appellant was guilty of murder, meaning that they had satisfied themselves beyond a reasonable doubt that he had the requisite intention for murder. The trial judge further explained to the jury that it was up to Crown counsel to prove beyond a reasonable doubt that the appellant was not acting under provocation. [1] If the jury had a reasonable doubt on this point, then they were required to find the appellant not guilty of second-degree murder and instead guilty of manslaughter.

(2) The sentencing decision

(a) The trial judge’s factual findings

31As can be seen, there were different ways in which the jury could have arrived at manslaughter verdicts in this case. Therefore, as is often required of trial judges in situations where the factual underpinnings of a jury’s verdict are not clear, the trial judge had to start by finding facts that would inform his sentencing exercise.

32The trial judge did just that. Instead of attempting to follow the logical process of the jury, he stayed true to what was inherent in the jury verdicts and came to his own independent determination of the facts necessary to sentence the appellant, to the extent that those facts were not implicit in the verdicts: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 14-15. His factual findings include the following:

there was no evidence that the appellant’s PTSD or any other mental disorder, including the anti-social personality disorder (“ASPD”) he was diagnosed with, impaired his knowledge and choice to carry the loaded handgun into the Eaton Centre on June 2, 2012
the appellant knew that it was unlawful to carry the loaded, concealed firearm, and yet he made a conscious decision to do so
the appellant had previously expressed to a co-worker that the laws of Canada should change so that people can carry firearms to protect themselves
there was no evidence supporting the suggestion that the appellant thought he would see any of the men who had attacked him in February 2012 on the day of the shooting
the shooting was not “random” in nature; it targeted two men whom the appellant had a “rational reason” to resent, to be angry with, and desire to harm
while provocation was properly left with the jury for their consideration, the evidence supporting this partial defence was “underwhelming” at best and the appellant “was not provoked”
the appellant was not acting in self-defence

33It was open to the trial judge to arrive upon those findings of fact. We owe deference to them.

(b) The mitigating factors

34The trial judge considered several mitigating circumstances, including that:

the appellant was only 23 years old at the time of the offences
the appellant experienced difficult circumstances in his early life in Guyana and later living in Toronto’s Regent Park neighbourhood
the appellant was a victim of crime as a child, and then in February 2012, he was seriously attacked, confined, and stabbed
the appellant engaged in some pro-social activities in the years preceding the shooting
firing gunshots at others was out of character for the appellant
the appellant turned himself into the police after the shooting
the appellant has always admitted that he is the shooter

35The appellant argued that his mental disorder should also act as a mitigating factor: although he may not have been in a dissociative state when he fired the gun (a fact that was clear on the jury’s verdict), he was nonetheless acting instinctually. The trial judge did not accept that this was a significant mitigating factor on sentence, even though he accepted that the appellant’s PTSD may have caused him to act more quickly than he otherwise would have to the unfolding events, affecting his ability to form the intention for murder.

36The appellant also argued that his prospects for rehabilitation were good. The trial judge found, to the contrary, that the prospects of rehabilitation were actually quite “guarded, at least for the next few years.” Even the defence expert forensic psychiatrist, Dr. Julian Gojer, testified that, with proper treatment through programs in the federal system, the appellant may still represent a low risk of harm to the community. These programs would take three to five years to complete. And the trial judge was satisfied that without treatment there was a “high risk” of reoffending.

37As for evidence of the appellant’s remorse, the trial judge concluded that it was “ambiguous at best”. As the trial judge put it, the appellant was a victim of a serious assault and of poverty and violent circumstances beyond his control, but his “self-image” as a victim both before and after the shooting had left “little room for remorse for the deaths and injuries he caused.”

38The appellant also put forward the IRCA report prepared by Dr. Urbanik, which was supplemented by a biographical review prepared by Camisha Sibblis, a clinical social worker and PhD student in social work. The trial judge admitted this social context evidence as relevant to the sentencing and found mitigation based on the IRCA, although to a limited degree. I will return to exactly how he dealt with the evidence later in these reasons. For now, I will summarize the evidence, since it forms a major plank of this appeal.

(c) The IRCA evidence and the trial judge’s findings

39The trial judge summarized the picture presented by the IRCA report as follows:

Christopher Husbands presents as a young black man, born into poverty, turmoil and violence in Guyana and then living in Regent Park. From his pre-teen years until his twenties he committed crimes of varying seriousness, including drug trafficking and holding onto illegal firearms for others. He also participated in pro-social activities, including volunteering and working at community organizations working with younger children. The court must consider the choices he made based in part on the environment he grew up in and over which he had little control. The subculture he grew up in limited the choices available to him.

40Ms. Sibblis provided a detailed social history of the appellant, describing the impact of anti-Black racism on his life. In it, she described his very difficult childhood, which included poverty and abuse. She also detailed the appellant’s understandable expressions of concern over being bullied and ridiculed due to the colour of his skin. She described the appellant’s account of his life in the Regent Park neighbourhood, which included his description of older men recruiting younger ones to hold onto drugs and weapons. Ms. Sibblis also described how the appellant had experienced police harassment, which made him feel rebellious and angry. Combined with the “street code”, this discouraged him from cooperating with the police.

41Ms. Sibblis ultimately gave her opinion that there was a reasonable expectation that the appellant would respond well to counselling and be a good candidate for rehabilitation.

(d) The aggravating factors

42The trial judge started his discussion of the aggravating factors involved in this case with a review of the profound victim impact. He reviewed excerpts from each victim impact statement. They included:

statements from family members of the two deceased, who were also young Black men
statements from the mother and sister of Connor Stevenson, who witnessed Connor being shot in the head and who had since experienced stress, anxiety and fear as Connor had, to that point, undergone “7 years of excruciating brain surgeries”
a statement from Connor Stevenson himself, describing how his life had been forever changed by the traumatic brain injury he sustained as a result of the shooting when he was only 13
statements from the other victims of the shooting, describing the physical and psychological harm they had experienced, including on-going fear of being in public places and hearing loud noises
statements from other people who were in the food court at the time of the shooting, describing the psychological harm they had experienced as a result of witnessing the shooting
a statement from Kessia Frederick who was trampled and spent the rest of her pregnancy terrified that her unborn child had incurred an injury, and who continued to experience fear of crowds
a community impact statement that commented upon the fact that shooting incidents in public places do not simply impact those who are killed and wounded, but also their families and friends and the larger community

43In addition to the victim impact, the trial judge listed other aggravating factors on sentence, including:

the appellant was on bail at the time of the shooting and was breaching the bail order, including the conditions involving house arrest and not possessing weapons
the appellant was intentionally carrying a loaded firearm into a busy public place
although the appellant did not have the intention for murder, he had a reason to want to inflict harm on the men he shot at. The shooting was not random or done in self-defence and he was “not provoked”
the appellant was criminally reckless as to how many innocent bystanders could be caught in the line of his fire

44On balance, he found that “the mitigating factors [were] significantly if not overwhelmingly outweighed by the aggravating factors and the need to reflect general deterrence and denunciation.”

(e) The sentence imposed

45The trial judge noted that, in cases of this nature, general deterrence and denunciation are the paramount sentencing principles to be applied.

46He sentenced the appellant to life imprisonment on both counts of manslaughter with parole eligibility set at the statutory minimum of seven years: CCRA, s. 120(2). [2]

47The trial judge stated that he would have extended the period of parole ineligibility by three years (from seven years to the ten-year maximum), but decided not to do so, given the harsh conditions of the appellant’s pre-sentence custody and the fact that the appellant’s ss. 7 and 12 Charter rights were breached as a result of an extended time in administrative segregation: Criminal Code, R.S.C. 1985, c. C-46, s. 743.6(1). Accordingly, on the manslaughter counts, the appellant was parole eligible after seven years following the date on which he surrendered into custody, which was June 4, 2012. This meant he was parole eligible on the manslaughter counts on the date of sentencing.

48The trial judge also imposed concurrent fixed-term sentences on the other counts. The longest one was a maximum 14-year term for the aggravated assault involving the child who was shot in the head. By the time of sentencing, through the application of enhanced credit, the appellant had served the equivalent of 10 years in pre-sentence custody. That 10 years was credited toward the fixed-term sentences.

D. Analysis

49In my view, the grounds of appeal fall into four overarching categories. Whether the trial judge:

(i) failed to properly apply the legal framework for considering social context evidence (ii) applied the wrong test for determining whether the appellant’s PTSD was linked to his criminal conduct (iii) misapplied the test for delayed parole and failed to grant a meaningful remedy for harsh pre-trial conditions and Charter breaches (iv) imposed a demonstrably unfit sentence

(a) Overview

50The appellant’s sentencing pre-dated this court’s decision in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, which addresses the intersection between anti-Black racism and sentencing. It is the appellant’s position that the trial judge based his reasoning on outdated law, rather than applying what would become the Morris methodology, supporting the use of social context evidence to mitigate an offender’s degree of moral blameworthiness where there is “some connection” between that evidence and the offending conduct: para. 97.

51The appellant maintains that the trial judge erred by insisting upon a “direct causal link” between the social context evidence and the shooting, such that he wrongly discounted the importance of that evidence. Had the trial judge followed the Morris approach, only insisting upon “some connection” between the social context evidence and the offending conduct, he would have seen a connection between the evidence and the appellant’s reason for taking the gun to the Eaton Centre on June 2, 2012, as well as the ensuing shooting.

52The appellant also maintains that a “some connection” approach would have more generously informed his prospects of rehabilitation, and that if the trial judge had given proper consideration to rehabilitation, he would not have imposed life sentences. In short, the appellant argues that the trial judge never really came to proper grips with his diminished moral blameworthiness, as informed by the evidence of the anti-Black racism he had experienced.

53Respectfully, I cannot accept this position. As I will explain, while Morris was penned after the sentencing in this case, the reasons for sentence are consistent with its methodology and principles. What really lies at the heart of the appellant’s position is not a reflection of a wrong legal approach, but an objection to the conclusions the trial judge reached when applying that approach – conclusions to which this court owes deference.

(b) The Morris approach

54Morris unequivocally and resoundingly accepts the existence of anti-Black racism in the criminal justice system and recognizes its profound and insidious impact on those who endure it. Its focus is the methodology for dealing with this reality in the sentencing process. In explaining the methodology, Morris pulls on age-old sentencing principles, ones that the trial judge in this case was well versed in and correctly applied.

55Morris speaks for itself, and so I do not intend to review it in any detail. Instead, I highlight a few aspects of the decision that are relevant in understanding why the trial judge’s decision is in step with the methodology and principles set out in Morris.

56There can be no dispute that a fit sentence is one “governed by the fundamental tenets of criminal responsibility, including free will, and the purposes, principles and objectives of sentencing laid down in Part XXIII of the Criminal Code”: Morris, at para. 56. Sentencing has long been recognized as an individualized process, one where judges are required to consider various statutory and common law factors that are designed to arrive at sentences that achieve the paramount objective of proportionality. All sentences must proportionally balance the moral responsibility of the offender with the seriousness of the offending conduct: Criminal Code, s. 718.1. So important is proportionality to the sentencing equation that it has been referred to as the “sine qua non of a just sanction”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37. In Morris, this court referred to the proper blending of sentencing objectives to achieve a just sentence, as “guided by the loadstar of proportionality”: Morris, at para. 59. See also: R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 56; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30; and R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40.

57While there was some dispute in the pre-Morris jurisprudence over whether and how social context evidence is relevant to the sentencing process, Morris cleared up that confusion.

58Morris makes clear that IRCA reports are admissible at sentencing: paras. 91, 106, and 134-135. They are admissible because they are relevant to the aspect of the proportionality analysis that looks to the moral blameworthiness of the offender. It is important that sentencing judges have all relevant information about the individual when determining that issue, including information about how anti-Black racism has impacted the offender.

59Morris also makes clear that social context evidence is not relevant when calibrating the seriousness of the offence. Indeed, Morris comments that the carrying of a loaded, concealed firearm in a public place was “made no less serious, dangerous, and harmful to the community” as a result of social context evidence: para. 76. Accordingly, even where there is relevant social context evidence before the court, deterrence and denunciation still play a predominant role in sentencing for serious crimes, including crimes involving the unlawful possession of loaded handguns in public places.

60Of course, that is not to say that social context evidence becomes irrelevant in cases such as these. Nonetheless, depending upon the seriousness of the offence, that seriousness can weigh more heavily in the sentencing calculus than any mitigation of the offender’s moral blameworthiness: R. v. Abdulle, 2023 ONCA 32, 166 O.R. (3d) 307, at para. 40, leave to appeal refused, 40727 (September 21, 2023) (S.C.C.). As I will explain shortly, that is precisely what the trial judge decided in this case.

61One final point. Morris is clear that an offender need not establish a direct causal connection between the negative effects of anti-Black racism on the offender and the offence, as “some connection” will suffice: Morris, at para. 97. But some connection is important because, without it, the mitigation of a sentence based upon the existence of overt or institutional racism in the community would represent nothing more than a “discount based on the offender’s colour”, and “[e]veryone agrees there can be no such discount”: Morris, at para. 97.

62Unlike in this case, in Morris, the court found that there was “some connection” between anti-Black racism and the possession of a loaded firearm. Mr. Morris’ fear of others, including the police, to some extent explained his possession of a loaded firearm at the time that he was arrested. There was information in the reports before the court in Morris that supported the inference that those fears existed in part as a result of systemic racism. It was therefore open to the trial judge in Morris to conclude that anti-Black racism was connected to, and had played a role in, Mr. Morris’ “strong fear for his personal safety in the community”: para. 100. Even so, Mr. Morris’ genuine fear, regardless of how it came to be, was only considered a “limited mitigating factor”, because he chose to arm himself in public with a concealed, loaded, deadly weapon. The reasons he had for that choice did not “detract from the seriousness of the crime”: para. 101. Even if his conduct was made somewhat less morally blameworthy by the explanation he offered for possessing the loaded handgun, his conduct “still put members of the community, and police officers engaged in the lawful execution of their duties, at real risk”: para. 101.

(c) The trial judge’s analysis is consistent with Morris

63The appellant challenges the trial judge’s analysis on two main grounds. I will address each one, explaining why the trial judge’s analysis is consistent with Morris, even though he did not have the benefit of this court’s subsequent decision.

64The appellant says that the trial judge applied the wrong legal framework, in that he erroneously looked at proportionality with only one eye open – the eye to the seriousness of the offence – without considering how the evidence diminished the appellant’s moral blameworthiness. In doing so, the trial judge is said to have sentenced a good man for a serious offence as if he were an evil man being sentenced for a serious offence. This error is said to manifest in the trial judge’s “race neutral” way of looking at the reasons the appellant was carrying a loaded, concealed firearm and shot that gun in the Eaton Centre.

65Respectfully, I cannot accede to this characterization of the trial judge’s reasons.

66Even though some pre-Morris decisions declined to admit social context evidence, that was not what happened here. To the contrary, the trial judge admitted the evidence, specifically noting its relevance and importance to the sentencing decision. Indeed, over 20 paragraphs of his decision are devoted exclusively to reviewing the IRCA report authored by Dr. Urbanik, as supplemented by the biographical review prepared by Ms. Sibblis.

67Consistent with what this court would later say in Morris, the trial judge expressly tied the social context evidence to the appellant’s degree of moral blameworthiness. He stated:

The issue of moral blameworthiness is an important factor in determining the appropriate sentence for these offences. A properly qualified and sourced IRCA, as in this case, acknowledges the existence of race and systemic racism in society. It is one factor to be assessed along with all the others in the sentencing process.

68The trial judge also tied the IRCA information to the appellant’s degree of blameworthiness by expressly acknowledging that his choices had to be assessed against the backdrop of his upbringing:

The court must consider the choices he made based in part on the environment he grew up in and over which he had little control. The subculture he grew up in limited the choices available to him.

69In my view, the trial judge expressed what would become the Morris approach for considering social context evidence. Indeed, his words foreshadow the words of this court in Morris, at para. 91:

There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender's community and the impact of that racism on the offender's circumstances and life choices is part of the offender's background and circumstances. The evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society.

70In short, the trial judge admitted the social context evidence and recognized that it had to be assessed with a view to whether it mitigated the appellant’s moral blameworthiness. However, as explained below, he found that there was little mitigation of moral blameworthiness in the offering.

(ii) The trial judge did not apply a direct causal link test

71The appellant submits that the trial judge erred by insisting upon too strict a connection between the social context evidence and the offending conduct. The appellant argues that the overly onerous threshold applied by the trial judge is seen in the following passage in the judgment:

The specific area where I find mitigation based on the IRCA relates to the drug convictions for [the appellant] and the drug activity, including the sale of crack cocaine, which he acknowledged but was never charged for. He grew up in extreme poverty in Guyana. He later experienced a different level of relative financial distress as he went through his teen years in Canada. He graduated from selling marijuana to the preparation and sale of crack cocaine to make money for clothes, food and transportation to school and to employment. While his drug activity cannot be excused it must be understood in his specific context. By all accounts he sold drugs to allow him to purchase necessities. Somewhat ironically this permitted him to participate in pro-social activities in the community and employment. To some degree the impact of race and discrimination specifically on him mitigates the seriousness of his criminal record and criminal activity for which he was never charged. [Emphasis added.]

72The appellant says that the emphasized portions demonstrate that the trial judge erroneously looked for a direct causal link between the impact of anti-Black racism on the appellant and his offending conduct, which is contrary to Morris. By doing so, the trial judge is said to have taken too narrow a view of the matter, isolating the social context evidence to only the appellant’s prior drug activities instead of considering how it had some connection to his decision to carry a firearm to the Eaton Centre and firing it.

73It is correct to say that the impugned passage focusses upon the connection between the social context evidence and the appellant’s drug activities. However, that does not mean that the trial judge discounted the social context evidence elsewhere in his reasons. Indeed, in the very next passage of his reasons, the trial judge notes the undeniable impact that anti-Black racism has had on the appellant:

How much does the impact of race and culture impact on the ultimate decision in this case? There is no doubt that [the appellant] was victimized on various levels after his arrival in Canada based on his race. There is also no doubt that the opportunities and choices available to him were restricted through no fault of his own based on his race.

74The trial judge understood that the social context evidence informed much more than simply the appellant’s prior drug activity. The fact of the matter is, however, that when it came down to it, the trial judge saw the social context evidence as having a limited impact in terms of mitigating the appellant’s moral blameworthiness.

75The trial judge considered the social context evidence alongside other evidence, including evidence as to the appellant’s reasons for carrying the loaded firearm into the Eaton Centre, which the trial judge was entitled to do. Unlike Mr. Morris, the appellant testified that he carried the firearm into the Eaton Centre not because he was afraid, but because he was holding it at the request of a man named Gaza. He explained that he decided to carry the gun with him the entire day, even bringing it with him while he went out to lunch with his Grade 8 teacher and then to the Eaton Centre, because he did not want to “go back to [his] house just to give it to [Gaza]” later. The appellant specifically rejected the Crown’s suggestion in cross-examination that he was carrying the firearm for a more nefarious purpose, always insisting that he simply had a firearm on him that day because he was holding it for another. Given the appellant’s testimony, it was open to the trial judge to conclude that the appellant’s decisions that day were not sufficiently connected to the social context evidence to significantly diminish the appellant’s moral blameworthiness. In reaching that conclusion, the trial judge was aware that the appellant had told Ms. Sibblis that his life growing up in the Regent Park neighbourhood had included older men recruiting younger ones to hold onto drugs and weapons, but that did not change the calculus in any significant way.

76There is nothing about the trial judge’s conclusion that offends Morris. Indeed, his conclusion aligns with Morris. As previously noted, this court found that even in circumstances where Mr. Morris was carrying a firearm out of “genuine fear” as informed by the social context evidence, it only acted as a “limited mitigating factor” and did not significantly diminish his moral blameworthiness. This was so even though Mr. Morris’ crime was undoubtedly less serious than the appellant’s crime. In the appellant’s case, he did not just carry a loaded firearm. While subject to a weapons prohibition, he carried a loaded, concealed, semi-automatic firearm into one of the busiest public places in Canada’s largest city, then he took the firearm out and fired it 14 times when over 700 people were close by.

77In short, the trial judge was alive to the social context evidence in this case and understood how it could be relevant on sentencing. The trial judge simply came to the conclusion that the social context evidence led at the sentencing provided little mitigation of moral blameworthiness for bringing a loaded handgun to the Eaton Centre and discharging it. The following passage from the trial judge’s reasons is telling:

The fact that [the appellant] went to the Eaton Centre that day with an illegal loaded semi-automatic handgun is a serious aggravating feature on sentence. He testified at trial that the day before the shooting he had been given the gun and asked to hold it by a man who later died in an unrelated incident. There was also evidence at trial from a co-worker and [the appellant] about a discussion they had after the incident in February 20, 2012, when he was attacked and stabbed. [The appellant] told his co-worker that he believed that the laws in Canada should be changed so that people could carry guns to defend themselves if necessary. [The appellant] testified that when he agreed to hold on to the handgun the night before the shooting he had no plan or intention to commit any crimes with the gun. He also testified that when he carried the handgun into the Eaton Centre he had no plan or intention to commit a crime. However, it was readily available for him to draw, point, and fire some 14 shots. There must be a significant aspect of deterrence to those who would carry concealed handguns in any public place whatever the circumstances in which they came to possess and carry the gun. The potential for death, severe injury and mayhem is self-evident. …

The crimes committed by [the appellant] can accurately be called a mass shooting in a public place. However it was different from the mass shootings that occur with distressing regularity in the United States. Those terrible incidents in work places, shopping malls, theatres and schools usually involve shooters who have no personal connection to the victims.

In the case of [the appellant] he had a personal connection with some of the victims. He opened fire towards men who were among those who had attacked and stabbed him some four months earlier. He had a reason or motive to want to inflict harm on them. He was not in a dissociative state when he fired the shots. He recognized those men. The shots he fired were not random and were not in any form of self defence. He was not provoked. He consciously opened fire in a crowded food court on an early Saturday evening in Canada’s largest city. He was criminally reckless as to how many totally innocent bystanders could be caught in the line of his fire. Could this incident have been worse? Yes, it could easily have been three, four, five or more people killed or wounded by his actions.

78In my respectful view, the appellant’s complaint about the use of the social context evidence really comes down to a complaint about the fact that the trial judge did not see it, for the most part, as informing the appellant’s moral blameworthiness that fateful day. That is not a proper basis for saying that the trial judge made a reversible error in his treatment of that evidence.

(2) Did the trial judge err by applying the wrong test for determining whether the appellant’s PTSD was linked to his criminal conduct?

(a) The appellant’s position

79The appellant argues that the trial judge erred by applying an overly onerous test for determining whether his PTSD was linked to his criminal conduct as an underlying cause. He maintains that his PTSD was a clear underlying reason for the shooting on June 2, 2012 and that this should have acted as a mitigating factor on sentence. Instead of applying a “some connection” test, the trial judge is said to have erred by looking for something rising to the level of a s. 16 NCR defence. He is also said to have erred by commenting that, even if the appellant’s PTSD was linked to his criminal conduct, the appellant would have needed additional evidence of a severe negative effect of the sentence upon him before it could be reduced on compassionate grounds.

(b) The trial judge’s reasons

80The trial judge devoted an entire section of his reasons to the appellant’s “Mental Disorder as a Mitigating Factor.” He started by summarizing a prior authority of this court in R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, as follows:

In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is the illness is an underlying reason for his aberrant conduct. Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds. [Emphasis added.]

81This passage from the trial judge’s reasons accurately summarizes this court’s decision in Prioriello, at paras. 11-12. According to Prioriello, in order for mental illness to be considered a mitigating factor, it must be “an underlying reason” for the conduct: para 11. The court must also consider the impact that a lengthy sentence would have on the offender.

82Having summarized Prioriello, the trial judge went on to summarize other authorities, including a passage from the decision of Durno J. in R. v. A.C.K.T., 2015 ONSC 1169, at para. 24. In A.C.K.T., Durno J. found that where a “demonstrated link” exists between an offence and a mental health issue, the sentence may be reduced.

83The appellant stresses that A.C.K.T. is correct. Nonetheless, he submits that the trial judge erred because, although he cited from A.C.K.T., his reasons clearly demonstrate that he insisted upon a direct causal link between the appellant’s PTSD and his offending conduct. The appellant argues that if a direct causal link, as opposed to just a link, were required, then there would never be any need for mental health issues to be considered at sentencing because an accused would have to be NCR before a connection could be made out.

(c) The trial judge applied the correct approach

84I do not agree that the trial judge applied an incorrect approach in assessing the connection between the appellant’s PTSD and his offending conduct.

85There is no question that the trial judge emphasized that the appellant was not in a dissociative state at the time of the shooting. That does not mean, though, that the trial judge failed to recognize that the appellant was living with PTSD at the time of the shooting. The trial judge repeatedly acknowledged this fact. In my view, all the trial judge was doing was calibrating the seriousness of the mental health issue at the time and its connection or link to the offence. To this end, he said:

There was no evidence that he was out of touch with reality or that he heard voices that told him to draw the gun and begin firing. There was no evidence or suggestion that his conscious choice to carry a concealed, loaded handgun with him throughout that day was in any way caused or influenced by PTSD. He recognized two of the men in the group descending on the escalator as among those who had seriously confined and stabbed him four months earlier. His PTSD may well have been a factor in his being hyper-vigilant and reacting quickly to the sight of those men. He fired shots toward the group, killing two and wounding five others in the food court. His actions were rational in the sense he saw two men he would have an understandable reason to resent or harm. His PTSD may have caused him to react very quickly as he continued firing as he walked towards the group of men with his arm out holding and firing the gun. One of the two men he recognized received the greatest number of wounds. This was not random and it was not self defence. The PTSD to some extent may explain the speed with which events unfolded. It may well have been a factor in the jury having a reasonable doubt as to whether the intent to kill had been proven. The PTSD did not cause these events but presents part of an explanation. I do not view the PTSD as a significant mitigating factor on sentence in this case. [Emphasis added.]

86The trial judge recognized that the appellant’s PTSD “may well have been a factor” in how the jury arrived at manslaughter verdicts, particularly given how it may have explained the speed at which things unfolded. The trial judge’s language – “may well have been a factor” – is consistent with Prioriello. Ultimately, the trial judge viewed the PTSD as a mitigating factor on sentence, just not a “significant” one. This is not surprising in light of the trial judge’s findings of fact, to which we owe deference.

87The appellant also contends that the trial judge erred by citing Prioriello for the following proposition: in order for mental illness to be considered a mitigating factor in sentencing, the offender must also show that a lengthy sentence would have a severe negative effect on them, and so the sentence should be reduced on compassionate grounds. However, the trial judge did not apply the law in such a manner: he concluded that the PTSD was a mitigating factor, just not a significant one, even without looking to what the appellant’s experience would be in custody.

88In my view, the trial judge did not err in ignoring the impact that the appellant’s mental health issues would have on him while he served a custodial period. The Supreme Court recently acknowledged that underlying mental health issues may serve a mitigating role in sentencing without any mention that there must also be evidence that a lengthy sentence would have a negative impact on the offender: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at paras. 37, 88 and 92. This approach is illustrated in Morris. In Morris, the trial judge found that Mr. Morris had the loaded handgun at least in part because of his “precarious mental state”: para. 161. This court accepted that Mr. Morris’ mental state alone offered some mitigation of his personal culpability and moral blameworthiness: paras. 161-166.

89In conclusion, there is no reason to interfere with the trial judge’s finding that the appellant’s PTSD was a mitigating factor, but not a significant one.

(3) Did the trial judge misapply the test for delayed parole or fail to grant a meaningful remedy for Charter breaches?

90The appellant contends that the trial judge erred by reversing the two-step procedure for determining when to delay parole eligibility. He says that the trial judge was required to first determine a fit sentence, having regard to the appropriate credit for the harsh pre-trial conditions he endured and the breach of his Charter rights. Only then should the trial judge have gone on to consider the question of delayed parole.

91The trial judge’s alleged misapplication of the two-step procedure is said to have contributed to his failure to grant the appellant a meaningful remedy for the harsh conditions and Charter breaches. In the appellant’s submission, had the correct approach been applied, he should have received a fixed-term sentence of 12 to 15 years.

(a) Trial Judges’ reasons: harsh pre-sentence conditions, Charter breaches and parole ineligibility

92The trial judge reviewed the harsh conditions in which the appellant had spent a good portion of his pre-sentence custody. He had “no hesitation” in accepting that the 529 days that the appellant spent in the Don Jail, all of which were spent in administrative segregation, were served in harsh conditions. While he was not prepared to accept all allegations of harsh conditions at the Don Jail, the trial judge accepted that owing to its seriously dilapidated condition, the best thing that could be said for the Don Jail is that it had closed. The trial judge specifically accepted much of the evidence about unclean conditions, malfunctioning toilets, lockdowns, and triple bunking.

93The trial judge also needed little convincing when it came to the clear ss. 7 and 12 Charter breaches arising out of the lengthy period that the appellant spent in administrative segregation. The trial judge noted that in addition to the 529 days that the appellant spent in administrative segregation in the Don Jail, the appellant spent a further 140 days in administrative segregation in another facility. Not only was the appellant held in administrative segregation for a total of 669 days, but there was no defined process by which he could challenge that situation. The trial judge noted the clear harm that can arise from segregation, exposing inmates to “a risk of serious and potentially permanent psychological harm”: quoting Canadian Civil Liberties Association v. Canada, 2019 ONCA 243, 144 O.R. (3d) 641, at para. 99.

94At the same time, the trial judge found that “the conditions of his segregation were not as extreme as those in other cases and does not appear to have had the devastating impact that is referred to in R. v. Capay, 2019 ONSC 535, 437 C.R.R. (2d) 102]”. For instance, the trial judge found that the appellant had visits, phone calls, medical care, showers, and limited yard facilities during that time. Although the appellant experienced stress, anxiety and depression due to the conditions, his own psychiatrist testified that he had showed a measure of resilience, with his PTSD in abatement while in custody.

95Although that clearly did not detract from the Charter breaches, it militated against the most extreme of remedies.

96In recognition of both the harsh conditions and Charter breaches, the trial judge adjusted the period of parole eligibility. In the normal course, the imposition of a discretionary life sentence attracts a seven-year minimum period of parole ineligibility (CCRA, s. 120(2)), but this can be increased to ten years pursuant to s. 743.6(1) of the Criminal Code. In this case, the Crown sought the 10-year maximum. The trial judge stated that he would have granted the Crown’s request, but declined to do so in recognition of the harsh conditions and Charter breaches He said that his decision not to delay parole eligibility was a “very concrete and appropriate recognition of both the harsh conditions and a remedy for the breaches of the Charter.” On appeal, the parties agree that, as a result of the decision not to delay parole eligibility, the appellant was parole eligible on the date that he was sentenced (November 19, 2019). [3]

(b) No misapplication of test for delayed parole and no basis to interfere with remedy for harsh pre-trial conditions and Charter breaches

97The trial judge did not err by misapplying the test for delayed parole. Nor is there any basis for interfering with the remedy he granted in recognition of the harsh pre-trial conditions and Charter breaches.

98In the normal course, the determination of parole eligibility is left to the prerogative of the Parole Board. The Board is an expert in all such matters, able to account in real time for an offender’s progress while detained in custody and their potential dangerousness if released into the community.

99Although it is uncommon and only to be done sparingly, in some situations, sentencing judges will delay parole, pursuant to s. 743.6 of the Criminal Code. When this is done, it can constitute a significant component of the sentence imposed: R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, at para. 24.

100When considering whether to exercise their discretion under s. 743.6, judges must first determine a fit sentence, taking all relevant factors into account. Only after that determination does the analysis shift to the potential to delay parole eligibility: Zinck, at para. 30. The same sentencing factors apply to the determination of delayed parole, with a particular emphasis on specific and general deterrence and denunciation: Zinck, at para. 30; Criminal Code, s. 743.6(2).

101Accordingly, the procedure for determining a sentence involving an increase in parole ineligibility has been referred to as a “double weighing exercise”. The following passage from Zinck, at para. 33 neatly summarizes that exercise:

First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in the circumstances of the case. This decision may be made, for example, if, after due consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the jail term would not satisfy the imperatives of denunciation and deterrence. This two-stage process, however, does not require a special and distinct hearing. It should be viewed as one sentencing process, where issues of procedural fairness will have to be carefully considered.

102The appellant’s primary complaint is that the trial judge failed to properly apply this two-stage process, because he essentially ignored the credit for harsh conditions and Charter breaches at the first stage of the analysis. Respectfully, I do not agree.

103The trial judge was not in any way confused about the two-stage process. Indeed, he specifically noted the “double weighing exercise” he was called upon to perform, cited Zinck, and quoted directly from the passage set out above. I take from this that he understood well the applicable law.

104Nor did the trial judge ignore the credit for harsh conditions and Charter breaches when it came to determining the fit sentence under the first weighing exercise. Rather, he simply concluded that the fit and appropriate disposition in this case could only be life.

105In reaching that conclusion, he carefully took into account all of the circumstances, many of which pointed toward life on the manslaughter counts.

106The trial judge had regard to the fact that, even on the appellant’s own psychiatrist’s evidence, his prospects for rehabilitation were “guarded”. He took into account that the appellant’s remorse for his actions was “ambiguous at best.” He factored in that the appellant was on bail at the time of the shooting for an outstanding sexual assault charge (a charge he was later convicted of), and that he had breached every single term of that release order including on the day of the shooting.

107The trial judge considered and carefully reviewed the devastating and lasting victim impact resulting from the appellant’s crimes.

108The trial judge also had regard to the fact that denunciation and deterrence were of paramount importance in this case, particularly given that the appellant was carrying a loaded firearm in a busy, public place in broad daylight. He also considered that this was a mass, unprovoked, and intentional shooting, not committed in self-defence. He commented that the appellant’s behaviour was criminally reckless, taken without any regard to how many of the over 700 innocent people present in the food court would be caught in the fire of his gun.

109The trial judge also took the range of analogous sentences into account, noting the individualized nature of the sentencing process in general, but also the individualized nature of this sentencing, involving an unprecedented shooting in Canada’s busiest shopping centre while the mall was full.

110It is on that basis that the trial judge determined that a life sentence for the two manslaughter counts was fit. In those circumstances, the trial judge concluded that he could not apply the credit for the harsh conditions and Charter breaches to the life sentence because it would transform the sentence into a fixed one, which would render it unfit in the circumstances. The trial judge specifically noted that counsel had been unable to locate a single authority that applied credit to an otherwise fit life sentence so as to transform it into a fixed-term sentence.

111I see no error in that approach under the first part of the “double weighing exercise”. The fact is that the trial judge explained well why only a life sentence was fit in the circumstances of this case. At the same time, he was not prepared to leave credit unaddressed. Accordingly, in an effort to provide a remedy for what were admittedly very serious and concerning Charter breaches in this case, combined with the harsh conditions of pre-sentence custody, the trial judge sought out a remedy: see generally R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 55.

112An increase in parole ineligibility is in fact an additional form of punishment: Zinck, at para. 30. The trial judge explained that in this case, with a particular emphasis on deterrence and denunciation, he would have increased the period of parole ineligibility to the statutory maximum, but chose not to do so in light of the credit left owing.

113In my view, there was nothing wrong with the trial judge proceeding as he did. He did not reverse the double weighing procedure set out in Zinck. Rather, he settled upon a fit sentence and recognized that in the normal course the credit would apply at the first stage of the procedure, but that could not happen here because no sentence other than a life sentence on the manslaughter counts was fit. He then applied the credit at the second stage. I see no error in this approach.

114Nor do I accept the appellant’s submission that the remedy fashioned by the trial judge – to not delay parole – was unreasonable as it “was meaningless and effectively amounted to an endorsement of the treatment [the appellant] received while in custody.” He submits that given the global sentence imposed, there was no air of reality that he could have, or would have, been granted parole within three years of his sentencing. In other words, the credit assigned to the otherwise fit period of parole ineligibility was unlikely to have a practical effect on the actual time he spent in custody.

115In my view, this position fails to account for two important points.

116First, parole is a process. It is one where the courts move aside and the expert Parole Board moves in. Although I agree with the appellant that the Parole Board was unlikely to grant the appellant early release, particularly in light of his own psychiatrist’s evidence that he would need to undergo structured programming in the penitentiary system for three to five years to lower his risk to the community, the fact is that this was all within the appellant’s control. The point is that the trial judge was prepared from a sentencing perspective to provide the appellant with the opportunity for self-improvement and start him on the immediate path toward consideration for parole eligibility. That was in fact a remedy for the harsh conditions and Charter breaches.

117Second, the reality is that, from time to time, particularly in the context of very serious crimes, there is no perfect means by which to adequately reflect credit in a sentence. Indeed, the trial judge noted as much in his decision when he analogized to the inability to reflect pre-sentence custody in the context of a dangerous or long-term offender findings. The analogy is apt to this situation. In the trial judge’s view, to which deference is owed, only a life sentence would adequately rise up and meet the offender’s degree of moral responsibility combined with the seriousness of his crimes. By not increasing the parole ineligibility, the trial judge immediately left the rest to the appellant.

118In these circumstances, the trial judge’s remedy for the harsh conditions and the Charter breach was not unreasonable.

(4) Was the sentence demonstrably unfit?

119A demonstrably unfit sentence is one that is clearly unreasonable having regard to all of the circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 45, 52.

120The appellant maintains that the life sentences are demonstrably unfit for a number of reasons, some of which I have already addressed, including the appellant’s submission that the trial judge’s analysis was infected by errors in his treatment of the social context evidence and his application of the wrong test for causal connection. The appellant also submits that the sentences imposed are demonstrably unfit since the trial judge failed to appreciate the appellant’s lessened degree of moral responsibility, as reflected in the jury’s verdicts of manslaughter, and instead sentenced him to what is effectively a sentence for murder. The appellant described the life sentences as “an extreme outlier”, and points to his rehabilitative potential as militating against the imposition of discretionary life sentences.

121I disagree that the life sentences imposed were demonstrably unfit.

122First, the appellant was not sentenced as if he were guilty of murder. In my view, had he been found guilty of two counts of second-degree murder, not only would he have received automatic life sentences, but he would have received a dramatically increased period of parole ineligibility, much beyond the statutory minimum of seven years that was imposed here. One need look no further than MacDonnell J.’s judgment in R. v. MacKinnon, 2019 ONSC 3436, aff’d 2022 ONCA 811, 164 O.R. (3d) 535, leave to appeal refused, [2023] S.C.C.A. No. 37, where he imposed 22 years of parole ineligibility for a public shooting involving 16 shots fired on a busy Toronto street. In this decision, MacDonnell J. reviewed numerous other decisions involving sentencing for multiple second-degree murders involving a range of ineligibility of between 18 and 25 years: paras. 67, 78.

123Yes, the appellant received a life sentence for two manslaughters, but with parole ineligibility set at seven years. Quite simply, he was not sentenced as a double murderer.

124Second, the trial judge did not, as the appellant suggests, err in failing to give effect to the appellant’s rehabilitative prospects in imposing a life sentence. He considered the appellant’s potential for rehabilitation in its own section, and in considering the evidence of Ms. Sibblis in the context of the IRCA. He was entitled to find that the appellant’s rehabilitation prospects were “guarded,” notwithstanding Ms. Sibblis’ evidence and the letters of support provided to the court. His position was based partially on the appellant’s own psychiatrist’s opinion that he would need three to five years of treatment to lower the risk of harm to the public.

125Third, while maximum sentences are indeed rare, they are not out of reach in circumstances where the principle of proportionality is respected. Certainly, it was within reach here. The facts have already been reviewed. This case was about as close as a manslaughter will come to a murder. The victim impact is profound: 2 young men are dead and a 13-year-old and his family have had their lives altered forever. That is not even to mention the other victims of the shooting crime, or the over 700 people that experienced the fear and panic that came with it.

126This court has frequently spoken about the devastating impact of gun crimes on our community: see generally R. v. Parades, 2014 ONCA 910, 317 C.C.C. (3d) 415, at para. 44; R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at paras. 59-60; and R. v. Stojanovski, 2022 ONCA 172, 160 O.R. (3d) 641, at para. 114. To intentionally take, while subject to a weapons prohibition, a loaded, concealed firearm into the Eaton Centre is serious enough; to open fire in a crowded food court in one of Toronto’s busiest public places constitutes an incomprehensible act of terrifying proportion.

127The fact that one can imagine a worse hypothetical offender ─ an offender without any of the mitigating circumstances of the appellant ─ does not make the maximum sentence unfit. Indeed, the Supreme Court has cautioned against reserving the maximum sentence for the “worst crime committed in the worst circumstances”: R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22; see also R. v. Cheddesingh, 2004 SCC 16. As noted in L.M., at para. 22, the key is that the trial judge’s decision be dictated by the concept of proportionality: “Proportionality will be achieved by means of a ‘complicated calculus’ whose elements the trier of fact understands better than anyone.” Deference must be shown to reasoned exercises of discretion by sentencing judges because of the special place from which they exercise that discretion.

128In conclusion, it was open to the trial judge to find that a life sentence was appropriate in the circumstances, notwithstanding the fact that the appellant’s rehabilitation prospects could possibly have been worse, and his moral blameworthiness could conceivably have been even more significant.

E. Conclusion

129I would dismiss the appeal. There is no basis for interfering with the life sentences imposed on the appellant. The trial judge imposed the life sentences after carefully assessing all mitigating and aggravating circumstances and taking all relevant evidence into account. He arrived at sentences that he considered appropriate within the limits established by law. There is no error in principle. There is no failure to consider a relevant factor. There is no erroneous consideration of aggravating or mitigating circumstances. The sentence is not demonstrably unfit.

Released: “February 28, 2024 JMF”

“Fairburn A.C.J.O.”

“I agree. J.C. MacPherson J.A.”

“I agree. B. Zarnett J.A.”

1The charge tracks the partial defence of provocation before amendments were made to s. 232 of the Criminal Code, restricting provocation to those situations where the provoking conduct of the victim would constitute an indictable offence punishable by five years or more of imprisonment.

2Pursuant to s. 120(2) of the CCRA, an offender serving a life sentence that is not a mandatory minimum sentence is not eligible for full parole until having served seven years of his sentence in custody, “less any time spent in custody between the day on which the offender was arrested and taken into custody, in respect of the offence for which the sentence was imposed, and the day on which the sentence was imposed.”

3We were informed at the hearing of this appeal that the appellant had filed an application for parole at one point in time but withdrew it for reasons unknown to the court. He remains in custody.

B. Background

(1) Introduction

(2) February 2012 attack on the appellant

(3) Unfolding of events on June 2, 2012

(4) Events following the shooting