R. v. Smith
Court: Ontario Court of Justice Date: May 20, 2016 Citation: 2016 ONCJ 565 Location: Toronto
Before: Justice Fergus O'Donnell
Counsel:
- J. Callaghan, for the Crown
- W. Reid, for the defendant, Maurice Smith
Heard: In Writing
Reasons for Judgment
Overview
1April is typically a happy month in Canada as spring edges out winter and as people rediscover the outdoors after the isolation of the colder weather. In northwest Toronto, however, April 2015 truly was instead "the cruelest month" after two shocking attacks took place within twenty-four hours, shattering the peace and security of two already beleaguered communities. A year later, Maurice Smith appears before me for sentencing on twelve very serious charges arising out of those shootings, charges to which he pleaded guilty. The offences took place on 15 and 16 April 2015. For 15 April 2015, Mr. Smith pleaded guilty to one charge of attempted murder, possession of a firearm contrary to a prohibition order and failure to comply with probation by being in possession of a weapon. For the following day, Mr. Smith pleaded guilty to an additional five counts of attempted murder, possession of a 9 mm Glock handgun without a licence, being an occupant of a motor vehicle knowing that that handgun was in the car, possessing the Glock contrary to a prohibition order and breach of probation by possessing the firearm.
2As might be surmised from the foregoing, all of the attempted murder charges involved the discharge of a firearm. Each of them was committed in conjunction with two or three other people, including the getaway driver in each case. But for the serendipitous presence of plainclothes officers in the near vicinity of the second shooting, combined with courageous police work, the second getaway might have succeeded and the victims in each of these two atrocities might have had no possibility of achieving justice, or at least as much justice as a court can provide to a victim in cases like this. But for the intervention of a neighbour and EMS personnel, one of the attempted murder charges would be a murder charge.
3Other than the scope of the Driftwood attack, none of this is new. To the contrary, it is all depressingly and tragically familiar.
The Offences
4The facts in relation to each day's events were presented to me as follows.
5The first attempted murder took place at a Toronto Community Housing development on Mount Olive Drive in northwest Toronto, a housing complex that has suffered from a long history of gun violence. On 15 April 2015, the victim SW was walking to a friend's house in the complex when he heard several people running behind him. He began to run and heard gunshots. He hid behind a wall and the assailants kept firing at him, hitting him in his left knee area. The assailants fled and SW was taken to hospital. Mr. Smith was one of the assailants.
6The following day, Mr. Smith and a group of accomplices went to 404 Driftwood Court. Mount Olive, about six kilometres west as the crow flies, is very similar to Driftwood in certain aspects. Both are Toronto Community Housing developments. Both have known more than their share of the city's violent crimes including firearms offences. These realities are notorious not only to the residents of those neighbourhoods and to the police divisions and courthouses with jurisdiction over them, but also to anyone who has even the slightest awareness of what goes on in Toronto. Both communities are at one and the same time victimized and stigmatized by the level of violent crime that plagues them, dealing a double blow to the vast majority of residents who simply want to live their lives in peace and safety, without worrying about what lies outside their doors at night or what other targeted or random violence might befall them.
7The victims at townhouse 3 at 404 Driftwood did not even have to wait for night to fall in order to have their lives changed forever. They were sitting outside their townhouse, socializing and getting ready to barbecue shortly before six p.m. on that spring evening. The townhouses have small front yards, adjacent to a sidewalk and parking lot. Immediately behind 404 Driftwood lie a small children's park and the Driftwood Community Centre. The admitted facts and video surveillance that were provided to me show much of the routine of daily life taking place in the near vicinity of the victims' townhouse, all easily within the trajectory of a random bullet. It was a warm spring day and people were going about their business in a fairly densely populated residential area. From the video provided to me, each lawn is perhaps five metres wide. Quite apart from the immediate victims of the attempted murders, the video shows children playing in adjacent yards, removed only by metres and minutes from the assailants' line of fire.
8It was into this scene that Mr. Smith and two of his companions entered, while a fourth man waited in the getaway car. Mr. Smith and the other two were armed with handguns, Mr. Smith with the ten-round 9mm Glock pistol referred to in the charges. Reasonable people might quibble about the precise length of their attack, but nothing hangs on whether it was five seconds or seven seconds, a second more or a second less. Suffice to say that after getting out of their car in the parking lot behind the townhouses, the three men rounded the corner behind the end unit townhouse and immediately opened fire on everyone in front of townhouse three. At least twenty-two rounds were discharged, all from close range. One of the men came particularly close, even firing into the entry of the house as the targets fled inside. I was told that this was not Mr. Smith. I appreciate why Mr. Smith would want to emphasize that, but whether one fires at innocent residents from five metres or ten or fifteen metres strikes me as having no relevance at all to questions of culpability and sentence. There is no material difference in the degrees of callousness shown by any of the three men.
The Impact
9Five people were struck by bullets that evening. Just before the shooting, MK had been holding her eleven-month old baby, but had passed her off to a friend who was standing just inside townhouse three. MK was struck by a bullet in the leg. Another round went through the baby's empty stroller outside Unit 3. Another victim, RR, suffered gunshot wounds to the left side of his body, consisting of the upper thigh, calf and foot. The wounds fractured his lower left leg. DH suffered two through-and-through bullet wounds to his upper right leg and another to his left upper thigh, as well as a graze to the right of his rib cage. FO sustained a through and through gunshot wound just above his right knee.
10WM was subjected to multiple bullet wounds and was the most seriously injured. He suffered massive blood loss and was vital-signs-absent when police and Emergency Medical Services (EMS) arrived. EMS managed to revive WM en route to the hospital. His injuries were critical and he required emergency surgery. Without the timely medical intervention, he would almost certainly have died. His surgery included a surgical bowel resection and an ileostomy that will have to be reversed at some point. He has developed a very large ventral abdominal hernia which will be difficult to repair. As of a year after the attack, WM's doctor said that he continues to suffer weakness and pain in his leg and knee and requires crutches or a cane to move, as well as severe ongoing psychological trauma. The doctor characterized WM's injuries as "permanent long term injuries", said that he will not likely return to his "pre-accident" abilities and that his outlook remains guarded. The economic consequences for WM, a labourer, will be enormous.
11FO's doctor reported about ten months after the attack that FO was healed and he foresaw no future limitations. This letter was very brief and did not address FO's psychological issues. It also appeared to downplay the more recent reflection of FO's medical condition as of the first anniversary of the attack in FO's victim-impact statement, in which FO said he can neither stand up for too long nor sit for too long because of problems with his knee.
12In his victim impact statement, WM described his typical post-shooting day, which begins with a time consuming bath because he is incapable of standing for a shower. After his bath WM returns to bed. He does not leave the house other than to go to doctor's appointments. He is entirely dependent on the kindness of his family to take care of his needs. The many scars and the "disfiguration of my stomach" (the huge ventral hernia referred to by the doctor) depress him. "I often break out in sweat my life is ruin ruin ruin for good." WM said he is on pain-killers and sleeping pills; he does not know what happened on 16 April 2015 and lives in fear of the unknown. He was unable to work and got an eviction notice. He relied on his family for food and medication. He knows he is alive but he feels like a dead man, incapable of normal functioning. The thought of his love life brings him to tears.
13WM spoke of the consequences of not understanding why they were attacked: "The bottom line, I do not know who these people are and overtime I see someone looking at me when I attended the doctors it put me on the edge wanting to run but I cannot run so I try to hide and I also cannot hide."
14FO's victim impact statement also addressed the issue of fear of the unknown and also the impacts of violence on his neighbourhood: "Do you know how it feels to sleep on your couch with your eyes open at night and not be fully asleep because you have to watch over everyone in the house, including myself? The pain I have suffered and persevered through at the age of 38. I have lived more years then some men living in Driftwood, but it's because I keep myself out of problems and mixing with the wrong people. Now I am living in fear that I may die at any time because of where I live. People want to kill me and I don't bother anyone. How would you feel knowing death is at your feet and by people you cannot see or know? It causes me a great deal of pain that my daughter is not allowed at my house because of all of the danger that lurks in this neighbourhood. When I talk to her, she is always asking me if I am inside because she doesn't want the bad guys to shoot me." FO said that he now felt that his life belonged not to him but to those who had shot up his family, his friends, himself and his house. Paranoid and depressed, he is afraid to leave the house.
15FO's mother, a resident of the house herself, wrote of fleeing, "from a place where killing is the norm and came to a country full of opportunities for my children and myself. To have this happen here, where am I supposed to run now? There is nowhere. ....I raised good kids that are now raising their own children, and they are now living in fear of this unseen death that lies at my front door." She fears planning a funeral for one of her children or grandchildren rather than looking forward to graduations, weddings and more grandchildren. She cannot sleep. The slightest noise makes her jump. A knock at the door at night makes her heart want to jump out of her chest. She asks: "When you feel as though you are being hunted by people with no faces, what do you do?"
16The final victim impact statement was from FO's sister, another resident of the house. She describes a home with only sadness and no more laughter. The household is in a constant state of vigilance. "Our happy home has been shattered into many pieces that cannot be put back together. No family or friends want to come to the war zone." She describes a life in which family members pair up to run past the front door to go upstairs to use the washroom, where mobile phones are kept constantly charged "just in case", where her previously carefree mother now bolts for the bus stop on the way to work in the morning, where the family is afraid to take the garbage out to the dumpster and where sleep is evasive. She insists that everyone in the family be home by 3 p.m. Despite never having been charged with an offence or having been put on a curfew, with no fault of her own she is now bound by one.
The Arrests
17After five or so seconds, the three assailants fled to their car, which was by then waiting on the street nearby, and fled westbound in the opposing lane of traffic. As it happened, several plainclothes officers were in the area and heard the gunshots. At least one of them saw the assailants enter their car and the police followed the car to Etobicoke where the police purposefully collided with the assailants' car and boxed it in with their cars. In a gunpoint takedown, the occupants of the car were repeatedly told to stop, but three of them including Mr. Smith fled. Mr. Smith discarded his Glock on the driveway and fled into the backyard of a house immediately beside the boxed-in getaway car. He surrendered when he was again ordered to stop as he tried to climb the rear fence of that house. All told, three pistols were seized at the scene of the takedown, Mr. Smith's 9 mm and two .45 calibre, with a cumulative capacity of twenty-seven rounds. All of the magazines were empty. One of the assailants was shot by the police during the arrest.
18GPS data from the Driftwood shooting getaway car showed that it had been in the vicinity of the Mount Olive shooting at the time of that shooting the previous day. A witness told police that Mr. Smith had admitted being one of the Mount Olive shooters. Bullet casings from the Mount Olive shooting matched the Glock used by Mr. Smith at Driftwood the following day.
Mr. Smith
19At the time of these offences, Mr. Smith was on probation from 2013 convictions for possession of cocaine, possession of marihuana and possession of a prohibited weapon. A condition of that probation prohibited him from possessing any weapons. The same convictions led to a ten-year firearms prohibition order. Mr. Smith was in breach of each of those orders on each of the days he committed the attempted murders in April 2015.
20Mr. Smith was twenty-one years old at the time of these offences; he is twenty-two now. In addition to the July 2013 convictions for possession of a prohibited weapon, marihuana and cocaine, for which he received a three-month conditional sentence, eighteen months of probation and a ten-year prohibition order under s. 109 of the Criminal Code, Mr. Smith had an antecedent conviction as a young person for simple possession of a controlled substance in 2012. (I mention that youth court entry only for completeness, not because I consider it of any relevance to the appropriate sentence for these offences.)
21Mr. Smith's pre-sentence report was what I would call mixed. Mr. Smith was born in Toronto. His mother and father split up when he was ten years old. His father was abusive to his mother but not to Mr. Smith or his three elder sisters. After leaving the family home, Mr. Smith's father was generally an absentee, in both the parental and financial senses. Mr. Smith's mother's principal issue with her son was his choice of friends, something that she could not cure even by moving out of the neighbourhood they were in. Mr. Smith also attributes his issues to bad company. Mr. Smith is the only member of the family who has a criminal record. His three elder sisters either work or attend university. Mr. Smith was suspended after Grade Nine and did not follow through on his options to resume his education, deciding to work instead to help support the family, against his mother's advice. I do not propose to go through Mr. Smith's entire work history, but it would be fair to say that he has not been idle. That is a factor to his credit. In one job obtained through a programme called Breaking The Cycle, Mr. Smith's performance was such that his job was extended to almost double the programme's usual term of one year. Mr. Smith was employed at the time of the shootings, earning fourteen dollars an hour.
22There appear to be no alcohol or addiction issues, with Mr. Smith drinking alcohol only occasionally, as well as occasional use of marihuana.
23Mr. Smith appears to have a strong relationship with his mother and was helpful around the house. The mother of Mr. Smith's first child, born when he was seventeen and now five years old, described Mr. Smith as a good father who worked hard, provided financial assistance when he could and who had a good family bond. Mr. Smith is no longer in that relationship but has been in a three-year relationship with another woman who speaks well of him.
24Mr. Smith, his mother and his girlfriend denied any linkage between Mr. Smith and gangs. The police suggested otherwise to the author of the pre-sentence report based on the people with whom Mr. Smith has been keeping company, including those allegedly involved in these shootings, who the police say are consistently members of the Jamestown Crips. The police also asserted that there was a turf war between the two gangs. There is no evidentiary basis on which I could prefer one version or the other, certainly no proof beyond a reasonable doubt to provide an aggravating consideration on sentence. I simply do not know if Mr. Smith is or is not a member of a gang. Ultimately, it strikes me as irrelevant in the sense that the commission of these offences against innocents as part of a turf war message or the commission of those same offences for no apparent "rational" reason are both equally perverse and equally deserving of society's condemnation. The only available explanation for the conduct is Mr. Smith's statement that, "something was done to me and I took matters into my own hands," a statement that is so cryptic that it provides neither enlightenment for a sentencing judge nor any comfort to the victims as to whether they have any enduring reason to fear for their safety.
25It is somewhat difficult to reconcile Mr. Smith's upbringing with these incredibly serious offences. It is often suggested that, "the apple does not fall far from the tree", but it appears here that the apple has fallen not only very far from the tree, but also very far from the other apples. Mr. Smith's mother provided him with a solid home environment, one that all of Mr. Smith's siblings used as a foundation for productive, pro-social development. When his mother saw Mr. Smith going astray, she moved the family out of the neighbourhood, but apparently not far enough. He had the benefit of participating in the Break The Cycle initiative, an anti-gang programme, but appears not to have benefited from it at all given these offences.
26It was his mother's concern, and Mr. Smith said much the same, that he was influenced by bad company. This is a very common observation by parents and defendants in criminal courts and it is undoubtedly true on occasion, but ultimately, Mr. Smith, unlike the apple, had the option of exercising free will, the benefit of rational thought and a conscience, which ought to have left no room for doubt even at his age that shooting up people in their yards is not only wrong, it is evil.
27In both the pre-sentence report and in his comments to me, Mr. Smith expressed his remorse and said he felt sorry for the victims and their families. He apologized for the effects of his actions on the community. He said that what he had done was selfish and wrong and was not consistent with his family's values. He aspires to be a role model for his son and to pursue his education while in custody. Mr. Reid provided me with a series of prison ministry correspondence courses with impressive marks. Mr. Smith's mother, sisters and girlfriend were all present for the sentencing hearing, something that struck me as characteristic of the pro-social lives they live as reflected in the pre-sentence report. It is a credit to them that they are here to support Mr. Smith. That kind of solid family support will be of great value to him as he serves his sentence and after his release.
The Positions of the Crown and Defence
28The Crown and defence are some distance apart in relation to the appropriate sentence. I appreciate the diligence, quality and maturity of their submissions and the materials filed in support of those submissions. For the Crown, Mr. Callaghan submits that a global sentence of eighteen years' imprisonment minus Mr. Smith's pre-sentence custody credit of about nineteen months is a sentence that reflects all that can be said in mitigation for Mr. Smith, including his early plea, his youth and the fact that he has no previous firearms offences. Absent those factors, Mr. Callaghan suggests that a life sentence would be appropriate in all the circumstances of this case.
29Mr. Reid argues in favour of a total sentence of fourteen years before credit is applied for pre-sentence custody. I shall come back to Mr. Reid's submissions in due course.
30Mr. Callaghan points out that the maximum penalty for the attempted murder offences is life imprisonment and that these offences not only carry one of the longest possible sentences in Canadian law, they also carry a mandatory minimum sentence of five years' imprisonment in light of the firearm used in Mr. Smith's offences. This reflects the fact that the moral culpability required for attempted murder is the same as that required for most murders; it is only chance or human intervention that governs which sentencing regime applies. While there must be restraint in the use of jail, especially for a youthful offender, and while totality will typically play a role in capping a sentence for multiple offences such as these, Mr. Callaghan points out that these are offences in which the sentencing principles that focus primarily on the offender such as rehabilitation and specific deterrence must take a back seat to those considerations that focus on protection of the public, such as general deterrence and denunciation. This is so because of the seriousness of the offences, because firearms offences have a real impact on the quality of life in Toronto and because, regrettably, none of this is even remotely new. The sentence for Mr. Smith must reflect not only that he armed himself along with his companions but that he did so in breach of probation and prohibition orders, that he did so twice, even if those two events were only a day apart, and that he did so in relation to no fewer than six victims, with the inescapable, tragic and enduring effects his actions had on the immediate victims and by sadly predictable extension, on their friends and families.
31Mr. Callaghan took me through a series of authorities on sentencing for attempted murder. I do not propose to catalogue those cases here. As with all sentencing authorities, there are similarities and dissimilarities between those cases and Mr. Smith's case. For example, all of those sentencings were after a trial, unlike Mr. Smith's guilty plea. Two involved victims who were rendered quadriplegic, a level of physical harm more serious than the worst injury here (although how much practical difference there is between WM and the sufferings of a quadriplegic is open to debate), one was a closer-range shooting than Mr. Smith's which might be argued to be more serious or callous, although the counter argument is that a close-in shot reduces the risk to others passing by in a densely populated residential or other crowded public area. Some cases involved defendants with worse criminal records than Mr. Smith, some, like Mr. Smith, were on probation or prohibition orders. None of the cases involved six victims.
32Mr. Reid commented on the cases advanced by Mr. Callaghan and provided his own authority on the issue of the appropriate range of sentence, which involved a single count of attempt murder along with three counts of aggravated assault in relation to three unintended victims of the offender's gunfire. Mr. Reid pointed to the principle that I should first determine the appropriate total sentence to impose on Mr. Smith and then impose individual sentences resulting in that total, "and which appropriately reflect the gravamen of the overall criminal conduct." Concurrent sentences might be required to stay within the appropriate total sentence and Mr. Reid emphasized the principle that, "the length of a first penitentiary sentence should rarely be determined solely by the objectives of denunciation and general deterrence." Mr. Reid also asked me to consider, in determining the totality of sentence, whether offences of the similar nature of these offences, a day apart, as well as the firearm prohibition and substantive charges, ought perhaps to attract concurrent rather than consecutive sentences.
Shocking, Absolutely Shocking (But Sadly So Familiar)
33Earlier in these reasons I used the word atrocity. Atrocity is a big word. It is often used to describe mass killings of civilians or prisoners of war in wars or conflict zones, but the fair reach of the word is much broader and it is important properly to characterize what Mr. Smith and his accomplices did, which was on various levels atrocious. The Cambridge dictionary defines "atrocity" as, "an extremely cruel, violent, or shocking act". There can be no gainsaying the obvious reality that what Mr. Smith and his pals did was extremely violent. The offence of attempt murder, which necessarily involves an actual intention to kill another human being (in this case six human beings), is by definition extremely violent.
34The seeming randomness of the offences introduces an element of extreme cruelty: how can a victim ever feel safe, not only after any event like this, but especially after an event like this that has no apparent "rational" explanation? The only reason events like this would ever not be extremely shocking is by virtue of society's sense of outrage having become dulled by the seemingly perpetual frequency of gun violence, which, while much, much less frequent than in the great republic to our south, continues in certain parts of this province and certain parts of this city to flare up from time to time. Each such offence, fatal or not, wears a little bit more off the fabric that defines a civilized and safe society. It has been said that all that is required for evil to prevail is for good people to do nothing. In a similar vein, society should never lose its sense of shock, outrage and repugnance at offences such as these. Society should never shy from declaring its repugnance at victims of offences such as these becoming prisoners in their own homes because Canadian society's rejection of firearm violence, a very simple proposition really, does not resonate with some people.
35As I have said, some of the shootings by which this city is beset (in particular certain very unfortunate parts of the city that bear the lion's share of these affronts on top of their other social and economic challenges) result in deaths and some do not. As with impaired driving and impaired driving causing death, the consequences for the offender will vary dramatically depending on whether someone dies or not. However, unlike the impaired driving scenario, the person who is found guilty of attempted murder had an actual intention to kill. The attempted murderer's moral culpability is in no way different from the moral culpability of the person who actually murders, even though his legal exposure will be dramatically different. Indeed, given the legal concept of constructive murder, a person who actually kills another may not have had an actual intention to kill, unlike Mr. Smith. The simple reality is that the difference between an attempt murder case and an actual murder case typically has nothing to do with the moral blameworthiness of the offender. Rather, the attempted murderer is the person who has failed at his purpose, whether by lack of skill, the inherent inaccuracy of handguns, a last-second movement by the victim, an inch or less in the trajectory of a bullet through a human body and the medical advances of the last half-century or so, combined with the skill and resources reflected in emergency medical services and hospital personnel. There may be a certain perversity in the fact that Mr. Smith benefits from the fact that he and his associates failed in their objective on each day, but they are entitled to the dramatically different sentencing outcomes dictated by the Criminal Code in such cases. At the same time, however, one should never lose sight of the fact that the group's clear purpose was to kill.
36It bears noting that in a sense, Mr. Smith and his accomplices are actually guilty of murder. I noted earlier that WM was vital-signs-absent when the paramedics arrived. Any forensic pathologist will tell you that in plain English, "vital signs absent" means "dead". WM was dead after being shot by Mr. Smith's group. It was the paramedics who brought WM back from death and the hospital staff who ensured he survived after being brought back from the dead. But for the medical intervention, any debate about sentencing on the attempt murder charges would be moot because Mr. Smith would get an automatic sentence of life imprisonment with no parole for twenty-five years. This fact does not dictate the sentence on the charges before me, but it should be a cause for very, very deep reflection on Mr. Smith's part, not only because of the sentencing outcome he avoided as a result of the medical intervention but also because of the fact that although WM is alive today, the material before me shows that he will be serving a life sentence of impairment, pain, dependence, reduced enjoyment of life, economic loss and fear. The other victims will share some of those consequences with WM. All of them will suffer very long-term, perhaps life-long, psychological consequences.
37There is a number of factors that demonstrate the seriousness of these offences and that militate in favour of a longer rather than a shorter sentence. For example:
a. The nature of the offences themselves. The paramount offence was attempted murder. These were brutal, atrocious, evil offences. Full stop.
b. General deterrence and denunciation. The well-recognized principle that in offences like this general deterrence and denunciation dominate the sentencing calculation, obviously not to the exclusion of the other principles of sentencing set out in the Criminal Code, but in clear priority to them. This is to some extent attenuated in relation to youthful offenders facing their first or first long period of custody, but the dominant place of general deterrence and denunciation as tools to make society safe from those who would consciously set out to kill multiple strangers cannot be gainsaid.
c. Two separate attacks. There were two separate attacks. Whether or not the sentencing court ultimately resorts to consecutive or concurrent sentences, the totality of the sentence cannot treat this as the equivalent of a single attack. The bottom line is that this was not one isolated offence. While the crimes were close in time, they were in different neighbourhoods. While there is a combination of pragmatism and principle in the practice of imposing concurrent sentences or of compressing the overall sentence for a spree of, for example, break and enters, there is a certain repugnance to the idea of taking that principle too far in relation to attempts to murder.
d. Role as principal. Mr. Smith's role in each attack was as a principal. The level of moral culpability of an attempted murderer (as opposed to his exposure to punishment) is, as I have said, at least as great as that of a murderer. Each wants to kill; the only difference is that the attempted murderer has failed in his mission. (Mr. Reid told me that I cannot treat Mr. Smith as a leader of the group. He is right. I have no such evidence. At the same time, I have no evidence that he was a mere follower or what was the relationship between him and his three accomplices on the second day or his two accomplices on the first day. I can no more speculate that he was a lesser player than I can speculate that he was a leader of the group.)
e. Multiple victims. There were six separate victims. It is not without significance that in the many sentencing authorities accumulated by the Crown, the greatest number of victims was two. As I have adverted to elsewhere, two attacks call for a more serious sentencing response than one attack and six victims call for a more serious response than one or two. To put this in context, had all of the victims here died, Mr. Smith and his cohort would, in the course of twenty-four hours, have increased Toronto's average annual homicide rate by ten percent. Given what he has admitted in his plea, damage of that nature was his purpose.
f. Use of firearms. Each attempted murder involved the use of firearms. As I have noted, the case law is thick with courts' denunciations of gun violence.
g. Community impact. Whether offences such as this are on the rise or not is, realistically, neither here nor there. What matters is that both of these offences occurred in communities that are no strangers to violence like this. There was massive public outrage on Boxing Day several years ago when a young woman was shot and killed in a gun battle downtown. No less outrage and curial condemnation should attend these events. The cases have noted that the difference between an attempt murder can be a matter of centimetres, the question of a last minute turn of the head. The setting of these shootings, like the shooting on Yonge Street years ago, requires one to wonder what would have happened if Mr. Smith and his cronies had turned the corner, guns blazing, nine minutes earlier when the little girl was playing with her skateboard in the line of fire mere metres beyond Unit 3.
h. Crime of common intention. Each crime was a crime of common intention. The law rightly concerns itself with crimes of common intention because when people join together to commit offences there is a greater likelihood of success and a greater potential for the infliction of harm.
i. Absence of apparent reason. There is no apparent reason for the two attacks and no apparent trigger. Incidents like this sometimes arise in the heat of the moment, perhaps out of some seemingly trivial dispute. We do not have even that much insight into why this happened. We can surmise, as Mr. Reid fairly did, that the Driftwood attack at least might have been a pure territorial outburst. Whether the Mount Olive victim was more clearly targeted is unknown. But all of this is just that, surmise. The absence of any "rational" explanation for these crimes makes them that much worse because individual and community fear, indeed terror, fester when residents have no basis upon which to assess their level of risk or to take appropriate precautions. This is evident in FO's victim impact statement, where he spoke of having lived trouble-free in a high crime neighbourhood to the ripe old age of 38 by keeping his head down and minding his own business, only to find that trouble came to him and his family and that that trouble has turned his family's home into a combined prison and isolation ward, with relatives too afraid to visit.
j. Limited credit for guilty plea. I shall point out elsewhere that Mr. Smith's plea should go some distance to his credit, but this is an area where the credit due to him is limited. Mr. Callaghan said that Mr. Smith's insight was limited, a point on which Mr. Reid agreed. This is an example. Other than his cryptic statement to the probation officer Mr. Smith has provided no explanation for what happened, and what he said was itself no explanation at all. It is troubling that, having had a year since the offences to consider his actions, Mr. Smith still lacks either the awareness or the basic human decency to recognize the fears that have so powerfully been expressed in the victim impact statements and the role of uncertainty that underlies those fears. I think it can fairly be said that, whatever other things Mr. Smith has done right since the offences, this shortcoming suggests that his loyalty to himself or to his associates trumps his obligation to the victims to provide whatever explanation underlay the attack, however perverse or irrational that explanation may be.
k. Breach of court orders. Mr. Smith committed these offences while bound by a probation order and while bound by a prohibition order. Each of those orders was specifically directed towards Mr. Smith's possession of weapons and he wilfully ignored them on each of the two days. The conviction from which those orders emanated was a weapons conviction, what the Crown describes as a TASER, but which Mr. Reid clarified was a small conducted energy weapon of relatively pusillanimous force. The bottom line, however, is that Mr. Smith had experienced the court's disapproval of his possession of a much lesser weapon, lost his liberty through the imposition of a conditional sentence and learned nothing from it, choosing to proceed in complete contempt of the court orders to graduate to a lethal weapon (and to use it). The fact that Mr. Smith's criminal conduct worsened by at least a couple of orders of magnitude despite court intervention and supervision on two occasions is very troubling. The conditional sentence was a judicial warning shot across Mr. Smith's bow; he ignored it entirely.
Every Coin Has Two Sides
38There are, of course, things to be said in Mr. Smith's favour. One of those is his youth, twenty-one years old at the time of the offence. The case-law rightly calls for consideration of that factor in any sentencing, including where a jail sentence is contemplated, particularly a long penitentiary sentence. Mr. Callaghan says that that consideration is already built into his sentencing position of eighteen years. Mr. Reid says that, along with the other factors, Mr. Smith's youth calls for a lesser sentence, one that would be less crushing. In imposing sentence I must factor in appropriate credit for this consideration.
39Another extremely significant factor in this case is the guilty plea. As the case-law demonstrates, every guilty plea is entitled to credit. Canadian courts have generally shied away from ascribing any numerical value to a guilty plea, although elsewhere credits in the range of one-quarter to one-third have been mentioned as appropriate. A guilty plea deserves credit on a number of levels. On a human level, a guilty plea saves the victims from having to relive the offence. The significance of this will vary from case to case. This will be a lesser consideration, for example, in relation to a fraud against a large corporation, whereas it could be a significant factor in relation to a similar offence against a vulnerable victim. This factor is a very significant consideration in a case like this, where the level of violence was so extreme and its consequences, physical and psychological, so far-reaching. Testifying in this case, including the build-up and preparation for testifying, would be a horrendous experience for the victims and Mr. Smith has done what is within his power to avoid that.
40On a pragmatic level, guilty pleas save court time and all of the resources that in a case like this would be poured into a preliminary inquiry and trial. There is apparently a preliminary inquiry scheduled for Mr. Smith's alleged associates in this matter next week, but Mr. Smith has done what he could to avoid that. When a guilty plea saves resources, those resources become available to provide earlier court dates to other defendants, including defendants who are in custody awaiting trial. That is no small concession by a defendant. In addition, a guilty plea may be a sign of genuine remorse, although in some cases it may reflect nothing more than a defendant's awareness that he or she has no avenue of escape from a conviction.
41Mr. Smith is also entitled to credit for the fact that his plea is an early one. It might be argued that a plea almost a year after the events is not "early", but these things are contextual. The charges from Mount Olive were not brought into the mix until about four months after the Driftwood charges were laid. A plea on the Driftwood charges was being discussed even before all the disclosure was provided. Bringing around a resolution in a case like this takes time. Given the consequences Mr. Smith faces, it is only fair to accept that getting to the point of a guilty plea takes a lot longer than it might for a simple assault or a property offence.
42I must also take into account Mr. Smith's pre-sentence report, what he has done while in custody and what he said to me in court. For example, the pre-sentence report shows that he left school in preference for working to help support his family, he has kept himself gainfully employed and so impressed his employers under the Breaking the Cycle programme that his tenure was substantially extended and that he is a devoted and responsible father and son.
How Do The Scales Balance?
43It may be perceived that this cataloguing of the aggravating and mitigating factors is somewhat one-sided. That is not because the analysis lacks balance, but rather because what is to be said in Mr. Smith's favour is very, very heavily outweighed by the enormity of what he has done and by the enormity of the immediate, medium-term and long-term consequences wrought by crimes like this.
44All of the sentencing considerations and principles are overseen by the principle of totality, which is codified in s. 718.2(c) of the Criminal Code and which dictates that when there are multiple convictions, even for multiple events, the total sentence must not be excessive. There is necessarily a tension between the principle of totality and the need for a sentence to reflect the cumulative seriousness of an offender's acts. Section 718.1 of the Criminal Code requires that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender." The reality, of course, is that six similar grievous acts do not attract six times the penalty that one such act will draw. It is, of course, equally true that while in the sentencing arithmetic one times six does not equal six, neither does one times six equal one.
45There is a certain "chicken-and-egg" character to many discussions of concurrent vs. consecutive sentences in an environment where totality rightly trumps and in which totality must reflect the seriousness of all of the offences and the offender's personal responsibility for each of them. The same concern arises with respect to the question of whether the sentences for breach of prohibition orders should be consecutive to the substantive offences of attempt murder or concurrent with them. At the end of the day, the final number should necessarily be the same, no matter how the sentencing judge structures the individual sentences. The commission of these offences while on probation or while subject to a prohibition order is a serious aggravating factor on sentence. It reflects contempt not only for the law but for court orders. It reflects a conscious choice by the offender not to learn from his earlier mistakes. Cumulatively, they are two aggravating factors on each of the sentences. If the sentences for the probation or prohibition order breaches are not consecutive, those factors must be built into the sentence for the attempt murder, subject always to the principle of totality.
46Mr. Smith has been in custody since the Driftwood attack on 16 April 2015, a period of one year and thirty-four days. He is entitled to credit for that time in custody at a rate of 1.5:1, resulting in a total credit of nineteen months and twenty-one days towards his sentence.
47In the trenchant words of FO's victim impact statement, "These guns need to go down!" Good decent folk should not have to cower in their homes at night. The very idea is an affront to all that civilized society stands for. The burden of achieving those laudable objectives cannot be borne solely by the criminal courts, but, to the extent possible and having regard to all of the relevant sentencing considerations, the courts must make it inescapably obvious to anyone who contemplates such repugnant use of force, particularly against defenceless victims, that their loss of liberty will be co-extensive with the harm they do to individual victims, to the local communities they operate in and to society at large. While the sentence I impose must reflect Mr. Smith's youth, his guilty plea, the positive elements of the pre-sentence report, the lack of a previous firearms record and the other mitigating factors, for offences of this nature, number and magnitude, general deterrence and denunciation must dominate the calculation. Specific deterrence is also relevant insofar as Mr. Smith committed these offences while bound by two orders that made it very clear to him specifically that his possession of the Glock handgun was absolutely forbidden.
48I am of the view that even with the mitigating factors, the sentence suggested to me by Mr. Reid would fall dramatically short of recognizing the objective gravity of these crimes, which significantly surpass the vast majority of attempt murder cases. I am of the view that without all of the mitigating factors present in Mr. Smith's case, an offender found guilty of these crimes (or even just of the Driftwood shootings), should anticipate a sentence of life imprisonment (meaning that after release he would be on parole until he died), or a sentence of a number of years dramatically longer than eighteen. I note that sentencing courts are no longer constrained by the unhelpful principle of an earlier period whereby the imposition of a maximum sentence was supposedly limited to the "worst offender and the worst offence". These are offences for which the imposition of the maximum sentence of life imprisonment would generally be entirely consistent with the principles of sentencing. An offender found guilty in the absence of Mr. Smith's mitigating factors (of which his guilty plea is by far the most significant) should also reasonably expect to be hit with the imposition of an order delaying his eligibility for parole. The language of s. 743.6 could hardly be better suited to these vicious, inexcusable and cowardly attacks.
The Sentence To Be Imposed
49Taking into account all of the foregoing considerations on sentence, including the principle of totality, and conscious of the need to avoid a crushing sentence, I am of the view that the appropriate total sentence for Mr. Smith's offences before the application of credit for pre-sentence custody is a sentence of seventeen years imprisonment. The sentences shall be structured as follows:
a. Driftwood Court attempted murder charges (16 April 2015): A sentence of sixteen years, less nineteen months and twenty-one days credit for pre-sentence custody, leaving a sentence remaining to be served, on those counts, of fourteen years, four months and nine days. All of the Driftwood Court attempted murder sentences will be concurrent to each other.
b. Mount Olive attempted murder charge (15 April 2015): A sentence of ten years to be served concurrently with the Driftwood Court attempted murder sentences.
c. Breach of prohibition order charges: A sentence of one year on each charge to be served concurrently with each other but to be served consecutive to the Driftwood Court attempted murder sentences. As a result, the total sentence remaining to be served as of today is fifteen years, four months and nine days.
d. Possession of Glock without licence (Driftwood): A sentence of one year to be served concurrently with all of the other sentences.
e. Knowingly occupying motor vehicle containing Glock (Driftwood): A sentence of two years to be served concurrently with all of the other sentences.
f. Failure to comply with probation charges: A sentence of six months on each count to be served concurrently with all the other sentences.
Ancillary Orders
50Mr. Smith will be required to provide a sample of his DNA for inclusion in the DNA databank. The attempted murder convictions are compulsory primary offences. All of the firearms and prohibition offences are secondary designated offences. The breach of probation charges are not designated offences. In relation to the secondary designated offences, I do not understand there to be any dispute about the making of the order. It is inescapable on these facts in light of the test as set out in the Criminal Code and as elaborated upon by the Court of Appeal for Ontario that the DNA order should be made on all of the secondary designated offences in addition to the primary offences.
51There will be an order under s. 109 of the Criminal Code for life.
52There is a mandatory victim surcharge of $2,400 which I have no authority to waive. I shall hear from Mr. Reid about an appropriate wording for the time to pay.
Footnotes
1The names of the victims are a matter of public record, appearing as they do on the informations setting out the charges. I have used their initials in these reasons to maximize their privacy and dignity in relation to the evil visited upon them through no fault of their own.
2As noted below, strictly speaking, this victim did die, but was brought back to life.
3I should say that I disagree with Mr. Reid in his assertion that FO's doctor's letter is more reliable, at least in relation to physical consequences, than FO's victim impact statement. Unlike WM's medical report, which was rather comprehensive, the letter relating to FO was remarkably sparse.
4My emphasis.
5Mr. Reid tells me that that "unsavoury witness" has since recanted.
6I recognize that Mr. Smith is insistent that he was not a member of a gang and that the police were too quick to label everyone as a gang member based on mere association with other suspected gang members, which concern may have some merit to it. As I said earlier, I do not have a sufficient evidentiary foundation to sentence Mr. Smith on the basis of gang membership, although his actions do have some of the very common hallmarks of gang activity. It is of no moment: as in the decision of J.E. Kelly, J. in R. v. Deeb, 2013 O.J. No. 5925, I am of the view that the sentence being imposed on Mr. Smith today is apt even if he has no gang involvement.
7I have yet to hear a defendant or parent tell the court that they or their child was that seemingly omnipresent bad influence. When it comes to offenders falling under the thrall of a bad influence, that bad influence always seems as elusive as the Scarlet Pimpernel.
8One could cite countless cases where courts have lamented the impact of gun violence, but one will suffice. In R. v. Brown, 2007 O.J. No. 5659, Nordheimer, J. made the following comments that clearly resonated with the Court of Appeal (2009 ONCA 563, [2009] O.J. No. 2908), when Mr. Brown went there seeking remission (unsuccessfully) from the sentence imposed by Nordheimer, J. "This city has over the past few years been continually shocked and horrified by acts of gun violence, especially at the hands of young men. There has not been any issue relating to public security and safety that has been or is currently of more concern to members of this community. Citizens of Toronto are understandably upset about what appears to be a proliferation of handguns in this city. They are even more alarmed by the apparent willingness of certain individuals to use handguns in the most indiscriminate and mindless ways. People have been sickened by the human tragedy that results form these events of gun violence, especially in cases where that tragedy has been visited on entirely innocent people and their families." (at paragraph 20).
9R. v. Jewell, R. v. Gramlick, 1995 CanLII 1897 (ON CA), [1995] O.J. No. 2213 (Ont. C.A.), at para. 27.
10R. v. Q.B., 2003 CanLII 4187 (ON CA), [2003] O.J. No. 354 (Ont. C.A.), at para. 36.
11See for example, R. v. Thai, 2010 O.J. No. 548 (C.A.), R. v. Fry, 1981 O.J. No. 140 (C.A.), R. v. Marchand, 1984 O.J. No. 37 (C.A.)
12Cambridge Dictionaries Online: http://dictionary.cambridge.org/dictionary/english/atrocity
13This attack was a crime of common intention. For purposes of legal liability, whose rounds actually hit WM is immaterial.
14I have put "rational" in quotation marks because there is no such thing as a rational explanation for what happened here. What happened here was the death of reason, compassion, consideration and intelligence.
15Perhaps, to his gang.
16It bears stating that for any person who was found guilty of these offences after a trial in which the victims were required to testify, one would be hard pressed to imagine how any sentence other than life imprisonment could even be mooted. In light of the plea in this case, no consideration was given to the application of s. 743.6 of the Criminal Code to delay parole for Mr. Smith. If the victims ever had to testify, one could certainly envisage that sentencing tool coming into play also.
17Mr. Reid submitted that the overwhelming strength of the Crown's case (at least in relation to the Driftwood Avenue offences) in no way reduces the credit to be given Mr. Smith for pleading guilty. In one sense, Mr. Reid is on solid ground in making that submission. Indeed, the Court of Appeal for Ontario stated in R. v. Santos, (1993) 67 O.A.C. 270, "We do not subscribe to the proposition that there should be less weight to a plea of guilty from a person who has been inescapably caught." If that case stood alone, I should be bound by it, although I could not, with all respect, say that I found the conclusion persuasive. The amount of weight to be given for a guilty plea is not fixed, but rather depends on various factors. I am reminded of a preliminary inquiry some years ago in which a defendant fought hammer and tongs to exclude his statement to the police. After I found that the Crown had failed to prove the statement voluntary, the statement being virtually essential to the Crown's case, the defendant surprised everyone by changing his election and pleading guilty. I can only assume he fought the statement voir dire as a matter of principle. Neither I, nor I suspect any of the passengers on the Clapham omnibus, could imagine giving the same weight to that guilty plea as one would give to the guilty plea of a man arrested outside the bank with a gun in one hand and the loot and hold-up note in another. All other things being equal, to treat the two defendants alike would, again with all due respect, do a disservice to the defendant who pleaded guilty in the face of a weak Crown case.
In any event, I am not limited to my own anecdotes and sense of justice in rejecting Mr. Reid's argument, for the comment in R. v. Santos, supra, does not stand alone in the oeuvre of the Court of Appeal. In R. v. Faulds, (1994) O.R. (3d) 13, a case contemporaneous with Santos, supra, the Court of Appeal made the following statement, which I believe is not consistent with the proposition expressed in Santos, supra:
"The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable. That is this case. Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide a degree of finality from the perspective of the victims which would not exist without the plea. Those features are present in this case and should be taken into consideration in assessing the appropriate sentence."
I also note that in R. v. Daya, 2007 ONCA 693, the Court of Appeal reaffirmed the finding inherent in Faulds, supra, that the extent to which a defendant was caught in flagrante is relevant to the amount of credit he should get for a guilty plea (I stress the amount of credit, not the entitlement to some credit):
"The circumstances of this case were that the appellant was caught red-handed, he had no defence to the charges and a trial would simply have postponed the inevitable. By pleading guilty, the respondent spared the administration of justice some time and expense, and for that, according to R. v. Faulds, he was entitled to some credit." (emphasis added).
Mr. Smith is entitled to credit for his guilty pleas. Insofar as those pleas save the victims from testifying in relation to events as traumatic as these, I am of the view that he is entitled to substantial credit, which is built into the sentence imposed. However, the notion that the strength of the Crown's case is entirely irrelevant to the amount of credit he is entitled to is neither a robust nor a sustainable proposition. In light of the authorities, my conclusion strikes me as being equally consistent with authority, with common sense and with fairness to all defendants.
18But for these positive factors I would have had no difficulty imposing the full eighteen years sought by the Crown.
19It is as ironic as it is tragic that FO's mother fled "a place where killing is the norm and came to a country full of opportunities for my children and myself" only to be victimized like this in her front yard on a quiet evening.
