Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Kodie Johnston
Before: Justice Kimberly E.M. Moore
Judgment on Sentence
Submissions Heard on: May 21, 2020
Reasons for Judgment Released on: June 4, 2020
Counsel
K. Schultz — counsel for the Crown
M. Spratt — counsel for Kodie Johnston
MOORE J.:
[1] Convictions
On November 14, 2019 I found Kodie Johnston guilty of the following offences:
- Possession of a prohibited weapon while prohibited due to a court order (count 2);
- Possession of proceeds of crime exceeding $5,000 (count 3);
- Failing to comply with probation by possessing unlawful drugs without a prescription (count 4);
- Failing to comply with probation by failing to keep the peace and be of good behaviour (count 5);
- Uttering death threats to the police officers (count 6);
- Resisting arrest / obstructing police (count 7);
- Aggravated assault (count 8);
- Pointing a firearm at Jean Marc Poirier (count 9).
[2] Acquittal on Attempted Murder
I found Mr. Johnston not guilty of the charge of attempted murder as I found that the Crown's evidence fell short of proving beyond a reasonable doubt that Mr. Johnston was attempting to kill Mr. Poirier when he shot him. The evidence of Mr. Poirier was critical in my determining that the Crown had not proven the intent to kill Mr. Poirier beyond a reasonable doubt.
[3] Adjournment for Sentencing
The matter was adjourned for sentencing, and the defence requested a pre-sentence report. A pre-sentence report was prepared, and has been made an exhibit in this matter. The sentencing was scheduled to proceed on February 21, 2020. It did not proceed as Mr. Johnston was ill with a fever, and could not be transported to court. The matter was re-scheduled to May 1, 2020 but did not proceed due to the COVID-19 pandemic and matters being adjourned. After consultation with counsel, it was determined that this matter should proceed to sentencing as soon as possible. Thus, the matter was scheduled for May 21, 2020.
[4] Stay of Count 9
On May 21, 2020 Mr. Schultz advised the Court that he was requesting that count 9 be stayed, due to the rule in R. v. Kienapple.
FACTUAL BACKGROUND
[5] Victim's Background
Jean Marc Poirier is 43 years old and lives in apartment 2 at 4 Cartier Court for about 5 years. He has been diagnosed with either bipolar disorder or schizoaffective disorder. He receives daily visits from the Assertive Community Team (ACT) to be provided with his medication. ACT employees also help him with tasks in the community such as shopping and attending appointments.
[6] Accused's Background and Living Situation
Mr. Johnston is 26 years old and he was a friend of Mr. Poirier's. Mr. Poirier permitted Mr. Johnston to stay in his apartment for free. Mr. Johnston did however provide marijuana to Mr. Poirier. Mr. Johnston essentially used the entire living room for his purposes, which included storing drugs, weapons and cash from his drug trafficking enterprise. Mr. Johnston's mother lived in the same apartment building. Mr. Johnston had resided with his mother at one point, but was asked to leave as he did not follow her rules.
[7] The Shooting Incident
On May 18, 2018 just before 1940, Mr. Poirier came out of the bedroom in his one-bedroom apartment at 4 Cartier Court in Brockville. Mr. Poirier sat down on a couch in his living room and asked Mr. Johnston if he could change the music. They had a heated argument. Mr. Johnston then reached for a loaded handgun .38 special calibre six-shot, single and double action revolver, that was sitting on a dog crate. Mr. Johnston shot Mr. Poirier in the chest, from a distance of about 5-7 feet. Mr. Johnston was not specifically aiming it. He picked it up and just shot Mr. Poirier. Mr. Johnston did not say anything when he shot him, and Mr. Johnston appeared surprised afterwards.
[8] Victim's 911 Call
Mr. Poirier called 911 from a landline in the living room. After Mr. Johnston shot him, Mr. Johnston set the gun down and watched Mr. Poirier talk to the 911 operator. Mr. Johnston did not intervene or offer assistance. Mr. Johnston did not prevent Mr. Poirier from speaking to the 911 operator.
[9] Victim's Departure
Mr. Poirier went to his bedroom to get his lighter, cigarettes and wallet. He believes he must have blacked out for a bit. He came to on the floor outside of his bedroom and left the apartment and the building and went outside where he met the police and paramedics.
[10] Prior Relationship and Arguments
Mr. Poirier confirmed that there had been no threats made that day, and that even when Mr. Johnston made comments on other days, Mr. Poirier did not take these seriously. Mr. Poirier considered Mr. Johnston to be a friend, and said that the only things they argued about were when Mr. Johnston was going to move out or when Mr. Poirier wanted to play his own music.
[11] Accused's Drug Use
Mr. Poirier believed that Mr. Johnston had been heavily smoking meth in the weeks prior to the shooting. Mr. Poirier advised that this is when Mr. Johnston started to see things that weren't there and become distracted.
[12] Victim's Injuries
The bullet entered Mr. Poirier's right chest and exited through his back. It was located in the couch. Mr. Poirier's rib was fractured as a result of being shot. No surgical intervention was required and the chest tube put in place at the hospital was removed 2 days later. It took 2-3 weeks for Mr. Poirier's injuries to heal, and he had no lasting effects.
[13] Police Response
The police attended in response to the 911 call. Mr. Poirier met one officer outside of his building. But for his disclosure to the officer that he had been shot, and lifting his shirt to show the wound, there was nothing obvious to the officer that Mr. Poirier had been a victim of a shooting.
[14] Officers Enter Building
Other officers went into the building.
[15] Arrest of Accused
Cst. Lucas Matthews knocked on a door of an apartment to clear the apartment (not knowing it was the victim's apartment), and was surprised when Mr. Johnston eventually answered the door. After Mr. Johnston opened the door, Cst. Matthews arrested Mr. Johnston. It took the assistance of another officer, Cst. Kathleen Kijewski, to get Mr. Johnston handcuffed as he was actively resisting.
[16] Threats to Police
Cst. Matthews asked Mr. Johnston if there was anyone else in the apartment and Mr. Johnston said "you don't want to go in there." Mr. Johnston then started yelling, "Mark", and "you're all going to die", and "don't you know who I am, you're going to die." Given the circumstances, Cst. McArthur took the threats seriously.
[17] Scene in Apartment
Officers eventually ended up in Mr. Poirier's apartment. They observed numerous weapons (including at least a half dozen knives in various sizes) situated on top of a dog cage. They observed crystal methamphetamine and money on one couch. They observed a bullet hole and blood on a second couch. There was a large bag of marijuana in the living room, a rifle sticking up from a third couch, and a live round of ammunition on the coffee table. The shower was running and there was blood on the bedroom door and on the carpet. There were pots on the burners on the stove.
[18] Money Seized
$48,695 in Canadian currency was seized during the search of the apartment by Cst. Steve Rogers. The vast majority of the money was located in a gray man's toiletry bag in a drawer in the living room. A smaller amount of money was located on a couch in the living room. All of this money (both the money in the toiletry bag and the money on the couch) was bundled in smaller amounts and bound by elastics. Cst. Rogers also located the revolver used by Mr. Johnston to shoot Mr. Poirier. It had been placed in its holster, still contained numerous live rounds, and was tucked beneath the back of the couch cushions.
[19] Probation Order
At the time of these offences, Mr. Johnston was bound by a probation order. It was made on September 23, 2016 and was for a period of 2 years. This order included a condition to keep the peace and be of good behaviour, and also prohibited Mr. Johnston from possessing any unlawful drugs, unless he had a valid prescription for same.
[20] Prior Firearms Prohibition
On March 6, 2014 Mr. Johnston was convicted of drug trafficking and two counts of possession of a schedule I substance. As a result of these convictions he was prohibited from possessing firearms for a period of 10 years.
[21] Drug Trafficking Activity
Mr. Johnston's cellphone was analyzed, and the text messages clearly indicated that he has been actively engaged in drug trafficking that day, and in the days prior to May 18, 2018.
[22] Statements to Police
Cst. Kijewski and Cst. McArthur attempted to assist Mr. Johnston in exercising his rights to counsel, but this was to no avail. During their interactions with Mr. Johnston he made numerous comments to them, including that he didn't need a lawyer as he had diplomatic immunity, that he was a god, that he was a Mason, that three wrongs don't make a right – it makes you even and something about karma. He asked Cst. McArthur if he could see something on the wall (and there was nothing there) and asked if he could hear a drilling noise (when there was none). Mr. Johnston also said that he shot him with a .38 snub-nose, that shot him in the side, that he isn't going to die, and that he only shot him once.
[23] Statements to Detective
Mr. Johnston exercised his constitutional rights, and chose not to testify at this trial. Statements made by Mr. Johnston to D/Cst. Laurie Bennett were filed at this trial. Many of the utterances made by Mr. Johnston during these statements were as incredible and bizarre as those made to Cst. Kijewski and Cst. McArthur. Other utterances were about the shooting itself, and included the following:
- When you steal from me, I'm going to fuckin' shoot you.
- You take from me, I'll fuckin' kill you.
- He touched my shit. I shot him. I don't care.
- He stole from me. I shot him.
- It's tit for tat. You steal from me I'm going to fuckin' put a bullet in you.
- I warned him. Three times. I'm like, "You're going to get yourself fuckin' hurt or something, man."
- He's not going to die, nothing. I was just proving to him basically, like….you know that nobody has to, you know what, if everyone is (i/a) and doesn't fucking lie and fuckin' do this stupid shit, we can all live forever.
- And boom, I just, like, skinned him.
[24] First Exchange with Detective
There were also two specific exchanges between Mr. Johnston and D/Cst. Bennett that are worth noting. The first is as follows:
D/Cst. Bennett – You can't just walk up to someone close range….
Mr. Johnston – yeah, you can.
D/Cst. Bennett – ….and shoot them. and not take the risk that they're going to absolutely one hundred percent survive.
Mr. Johnston – Yeah, they will.
D/Cst. Bennett – (pause) No you can't,
Mr. Johnston – Yeah I can. You obviously don't know….
D/Cst. Bennett – You can't keep arbitrarily keep going around, you can't go around shooting people.
Mr. Johnston – Do you, do you want to shoot me? I guarantee I'll be alive tomorrow and that fuckin' wound will be out.
D/Cst. Bennett – No, I don't, I don't want to shoot you.
Mr. Johnston – I can heal any wound. I can heal cancer. I can heal anything.
[25] Second Exchange with Detective
The second is as follows:
Mr. Johnston – And then I told him, I was like, fuckin' like basically like "Don't come at me like that", and then he fuckin' said "Hey?" (i/a) I told him, I was like, "Man you touch my shit one more time…" Yeah.
D/Cst. Bennett – You told him I, "You touch my shit one more time" what? Did you tell him you were going to shoot him?
Mr. Johnston – I said "something's going to happen to you."
D/Cst. Bennett – okay
Mr. Johnston – I snapped, and that's what happened.
[26] Trial Findings on Mental State
I found at trial that Mr. Johnston was impaired by drug to some degree, and that he had some clear mental health issues manifested in delusional behaviour, but I also found that his actions on that date also demonstrated an ability to make conscious and deliberate decisions.
POSITIONS OF THE PARTIES
[27] Crown's Position
On behalf of the Crown, Mr. Schultz submitted that a sentence of 7 years less pre-sentence custody should be imposed. The Crown also sought a number of ancillary orders. Mr. Schultz relied primarily on the Court of Appeal's decision in R. v. Bellissimo, 2009 ONCA 49, as well as a consideration of the mitigating and aggravating factors, to support the Crown's position.
[28] Defence Position
On behalf of Mr. Johnston, Mr. Spratt submitted that a sentence of time served should be considered, or if the Court determined that further custody is warranted, a sentence of 9-12 months should be imposed. If further custody is imposed, I am asked to consider recommending that Mr. Johnston serve that sentence at the St. Lawrence Valley Secure Treatment Unit, where Mr. Johnston could receive assistance for his drug addiction and mental health issues.
VICTIM IMPACT STATEMENT
[29] Victim's Statement
The Crown advised that Mr. Poirier was provided with an opportunity to submit a Victim Impact Statement and he declined to do so. Mr. Poirier was consulted however during the preparation of the pre-sentence report.
REPORTS
[30] Psychiatric Assessment
No psychiatric assessment was requested. Nor was one provided to the Court. As such, the only evidence pertaining to Mr. Johnston's mental health comes from the pre-sentence report.
[31] Pre-Sentence Report
A pre-sentence report was prepared by Kristin Mathers and filed in this matter in January 2020. The following points from this report were carefully considered by me:
Criminal Record
[32] Youth Convictions
Mr. Johnston's criminal record was set out in the pre-sentence report. He was convicted in 2012 as a youth of uttering threats and failing to comply with an undertaking. He received a conditional discharge.
[33] Limited Violent History
He has no other offences of violence on his record, and these were his only youth convictions.
[34] Adult Convictions
As an adult Mr. Johnston has convictions for drug trafficking x2 and possession of a schedule I substance x2, mischief x2, false alarm of fire, and 6 breaches of court orders (probation or release). The lengthiest sentence he has received was in 2014, where he was sentenced to 5 months on top of 34 days of pre-sentence custody.
Community Support
[35] Family Support
Mr. Johnston's mother and sister came to court every day of his trial. They continue to be very supportive of him. His mother, Angie Overton, advised the author of the pre-sentence report that she would welcome Mr. Johnston into her home again, but did note that she still lives in the same building as the victim.
[36] Limited Social Connections
Mr. Johnston advised the author of the pre-sentence report that his only friend prior to going into custody was Mr. Poirier.
Tragedy
[37] Losses in Life
Mr. Johnston's father died when he was 5 years old. He has also lost both grandfathers. Mr. Johnston's mother believes that these losses have really affected Mr. Johnston.
Education and Employment
[38] Education
Mr. Johnston completed high school in 2013.
[39] Employment
Although he has had employment in the restaurant industry, he was not employed at the time of the offences.
Addictions and Mental Health
[40] Alcohol Use
Mr. Johnston experimented with alcohol at the age of 13, and started consuming regularly when he was 16. He stopped consuming hard liquor when he was 20 as it caused him to do stupid things.
[41] Drug Use
Mr. Johnston first used marijuana when he was 13 and started to use it regularly when he was in grade 10. Since then he has used many drugs, including: crystal methamphetamine, cocaine, crack, magic mushrooms and hydromorphone. He has been using crystal methamphetamine and hydromorphone daily since he was 22 years old.
[42] Acknowledgment of Drug Use Impact
Mr. Johnston agreed that his drug use played a role in the offences and affects his relationships with family and friends.
[43] Mental Health Diagnosis
As a child Mr. Johnston was diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiance Disorder and a learning disability. He takes medication for same. Mr. Johnston received services from Children's Mental Health of Leeds and Grenville. The pre-sentence report indicates Mr. Johnston's mother believes that an updated psychiatric assessment would be beneficial.
[44] Anger Management
Mr. Johnston and his mother identified anger management as a concern.
Conduct in Custody
[45] Misconducts
Mr. Johnston was found guilty of 3 misconducts while in custody – two for "committing or threatening to commit an assault" and one for "creating or causing a disturbance."
Impact on Victim and Insight into Offending
[46] Victim's Perspective
Mr. Poirier advised that he did not suffer a negative impact as a result of the shooting. He indicated "that it simply slowed him down."
[47] Remorse
The following passage appears in the pre-sentence report, "[w]ith respect to the subject's level of remorse, he initially said that he "didn't do it" and then proceeded to say, "if I did do it, I was so messed up – I don't remember anything because I was so high", however he stated that he is very sorry that this incident occurred.
MITIGATING FACTORS
[48] Family Support
Mr. Johnston has the support of pro-social family members, namely his mother and sister. That his mother had previously requested him to leave her home as he was not following the rules suggests that she is someone who would hold Mr. Johnston accountable for his actions. It is clear that Mr. Johnston's mother loves her son, but it is equally clear that in the years leading up to this incident she had little influence on him. Mr. Johnston was using crystal methamphetamine and hydromorphone daily. He lived two floors below her, and was dealing drugs from this apartment.
[49] Youth and Limited Violent Record
Mr. Johnston is a youthful adult, whose previous record for violent offences is limited (although the drug offences are quite concerning).
[50] Losses and Prior Probation
Mr. Johnston has suffered many losses in his life. While these may have contributed to his offending it is difficult to assess with the limited information provided to me. I note that Mr. Johnston has been placed on probation four times since 2012 and I fully expect that assessment, treatment and counselling would have been part of at least some of those orders.
[51] Possible Remorse
There is a possibility of remorse, although this is difficult to assess. When he says in the report, that he is sorry this occurred, what does that really mean? When asked if he had anything he would like to say prior to my imposing sentence, Mr. Johnston talked only about the impact of his incarceration on him, and said nothing about the victim, or remorse for any of his crimes.
AGGRAVATING FACTORS
[52] Criminal Record and Breaches
Mr. Johnston's criminal record is significant in that he has four drug convictions and many breaches of court orders. This is particularly important as I consider the offence of possession of a firearm while prohibited. The breaches of court order are also significant as I consider Mr. Johnston's ability to commit himself to rehabilitation.
[53] Luck Rather Than Planning
I agree completely with Mr. Schultz that the reason that Mr. Johnston is not being sentenced for manslaughter or a more serious offence, is because of good luck and not good planning. Mr. Johnston shot Mr. Poirier from a distance of 5-7 feet and struck him in the chest. While the injury was not serious (and Mr. Poirier recovered within weeks), the potential for harm – or death – was significant.
[54] Drug Trafficking
Mr. Johnston was supporting himself through illegal drug trafficking as was evidenced by the texts and items located in the apartment. Almost $50,000 in drug money was seized by the police.
[55] Loaded Firearm
Mr. Johnston used a handgun to shoot Mr. Poirier. This gun was previously loaded, and all but the spent round remained in the gun after the offence. Mr. Johnston placed the gun in its holster and hid it in the couch after he shot Mr. Poirier.
[56] Access to Multiple Weapons
Mr. Johnston had access to multiple weapons, including firearms, despite being on an order not to possess same.
[57] Lack of Assistance to Victim
While Mr. Johnston did not impede Mr. Poirier's call to 911, Mr. Johnston made no effort to try to assist Mr. Poirier after he shot him.
OTHER FACTORS
[58] Additional Considerations
I wish to briefly refer to two additional factors.
Mental Health and Addictions
[59] Untreated Issues
It was clear to me from the evidence in this case that Mr. Johnston suffers from addictions and mental health issues. I have little evidence to support that he wishes to have assistance with addressing these issues. The pre-sentence report suggests he has some insight into these issues, but the information is very limited. Without information as to his motivation to work very hard to address these issues, it is difficult to assess the prospects of rehabilitation.
Insight into Offending
[60] Trial Conviction and Admissions
Mr. Johnston was found guilty after trial. This is not an aggravating factor, but rather the absence of a mitigating factor. Often, in cases where the offender is found guilty after trial, there continues to be a denial of responsibility for the offences, and this absolutely cannot be held against the offender. In the case before me there were, as pointed out by Mr. Spratt, many admissions made by Mr. Johnston to shorten the length of the trial. The primary issue at trial was whether Mr. Johnston intended to kill Mr. Poirier when he shot him. The evidence that it was Mr. Johnston who shot Mr. Poirier was overwhelming, so the issue of identity was very clearly established.
[61] Lack of Insight
While Mr. Johnston may not have recall of the events due to his consumption of drugs, he has had two years to reflect on the harm he did cause to his only friend, and the harm he could have caused to him. Despite that passage of time, I am not satisfied that Mr. Johnston has any insight into his offending and his actions of May 18, 2018.
[62] Lack of Remorse as Sentencing Factor
I made the following observations on the offender's lack of insight in R. v. Hart, [2019] O.J. No. 311 (O.C.J.):
68 It is clear from the pre-sentence report that Mr. Hart has no insight into his offending, or into the impact of his actions on L.C.'s family. I do not find that Mr. Hart's lack of remorse, or his lack of insight, are aggravating factors, and it would be inappropriate to increase the sentence due to this factor. However, I do find that this is a relevant consideration as I determine the ability to rehabilitate Mr. Hart, and specifically deter him from reoffending in the future.
69 This principle was enunciated in R. v. Shah, 2017 ONCA 872, at paragraph 8:
8 Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini 1999 CanLII 1885 (ON CA), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 2004 CanLII 33468 (ON CA), 190 O.A.C. 354 (C.A.), at para. 2.
[63] Application to This Case
I adopt these same comments as it pertains to Mr. Johnston. While Mr. Johnston's lack of insight into his offending speaks to the challenges of rehabilitation going forward, I do not find it to be an aggravating factor.
PRINCIPLES OF SENTENCING
[64] Sentencing Framework
The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code. I will address a number of these at this time.
General Principles
[65] Section 718 of the Criminal Code
Section 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[66] Sentencing Objectives in This Case
In the case before me I find that each of these sentencing objectives are of significant importance, with those of deterrence, denunciation and rehabilitation being paramount.
[67] Other Sentencing Principles
There are numerous other sentencing principles that I considered in this matter, including: proportionality, restraint, totality and parity. Many of these sentencing principles are intertwined.
Proportionality
[68] Section 718.1 of the Criminal Code
The principle of proportionality is set out in section 718.1 of the Code, wherein Courts are reminded that, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[69] Supreme Court on Proportionality
The Supreme Court of Canada addressed the issue of proportionality, which is defined in the Criminal Code as the fundamental principle of sentencing, in R. v. Ipeelee, 2012 SCC 13, at paragraph 37:
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533 (emphasis added):
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
Restraint
[70] Sections 718.2(d) and (e) of the Criminal Code
Sections 718.2(d) and (e) of the Criminal Code state as follows:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[71] Principles of Restraint
These sections are often referred to as the principles of restraint. The wording of each is very clear, and unambiguous. Before a sentencing judge imposes a custodial sentence, the judge must first consider all other available sanctions, provided that those sanctions are "appropriate." In other words, the sanctions must also satisfy the other legal principles set out in the Criminal Code.
[72] Defence Submission on Restraint
In the case before me, Mr. Spratt urges me to consider a sentence that would see Mr. Johnston released immediately, or within a number of months.
[73] Balancing Restraint with Other Principles
It is a significant responsibility that has been placed upon sentencing judges, to craft a sentence that respects the need for restraint, but also concurrently respects the significance of reparation, rehabilitation, deterrence and denunciation.
Totality
[74] Section 718.2(c) of the Criminal Code
The principle of totality is set out at section 718.2(c) of the Criminal Code and states that, "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh."
[75] Approaches to Totality
There are different approaches to how a Court may consider the issue of totality. In R. v. M.E., 2012 ONSC 1078, and R. v. Hutchings, 2012 NLCA 2, it was proposed that the sentencing judge should first determine the appropriate sentence for each offence, and then consider whether they should be consecutive or concurrent. If consecutive sentences are being imposed, the sentencing judge should then determine if the overall sentence would be disproportionate as it stands. If so, then the sentences need to be adjusted accordingly.
[76] Alternative Approach to Totality
In R. v. A.S.H., [2015] O.J. No. 2792 (S.C.J.), the Court took a different view as to how the principle of totality should be approached. The Court held that the sentencing judge should first determine the appropriate global sentence, and then apportion the sentences accordingly, ensuring that the sentences appropriately reflect the gravity of the offences.
[77] Proportionality and Totality
Both approaches require that the ultimate or overall sentence not offend the principle of proportionality. On behalf of the Crown, Mr. Schultz submitted that the Court should impose the total period of custody on the aggravated assault, and concurrent sentences for the remaining offences.
Parity
[78] Section 718.2(b) of the Criminal Code
Section 718.2(b) of the Criminal Code states that "a sentence should be similar to sentences imposed for similar offenders for similar offences committed in similar circumstances."
[79] Parity Principle
In R. v. Macri, [2012] S.J. No. 386 (Prov. Court), the Court stated, at paragraph 40, that, "[t]he principle of parity is embodied in section 718.2(b) of the Criminal Code. It dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified."
[80] Parity in Sentencing Ranges
This aspect of sentencing – parity – will be significant when I consider the ranges of sentences imposed for similar matters.
PRE-SENTENCE CUSTODY
[81] Time in Custody
Counsel agree that Mr. Johnston has been in custody continuously since his arrest on May 18, 2018. As such, he has served 749 days of pre-sentence custody as of today.
[82] Statutory Credit for Pre-Sentence Custody
Sections 719(3) and (3.1) of the Criminal Code set out the Court's discretion in considering pre-sentence custody, indicating as follows:
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
[83] Reasons for Credit
Section 719(3.2) of the Criminal Code states that, "[t]he court shall give reasons for any credit granted and shall cause those reasons to be stated in the record."
[84] Supreme Court on Pre-Sentence Credit
In R. v. Summers, 2014 SCC 26, the Court held as follows:
75 For many offenders, the loss of eligibility for early release and parole will justify credit at a rate of 1.5: 1. However, as Beveridge J.A. concluded, it is not an "automatic or a foregone conclusion that a judge must grant credit at more than 1: 1 based on loss of remission or parole" (Carvery, at para. 60). If it appears to a sentencing judge that an offender will be denied early release, there is no reason to assign enhanced credit for the meaningless lost opportunity.
76 As Beveridge J.A. wrote:
it would not be onerous for most offenders to establish that they would have earned remission or been granted parole, and hence, it is not likely to be a rare occurrence for an offender to be worthy of a credit of more than 1: 1. [para. 66]
77 The Crown says it is not appropriate for the sentencing court to inquire into the likelihood that a particular offender will receive parole because considerations relating to the administration of the sentence are irrelevant to sentencing. Further, it is improper to reduce a sentence by granting enhanced credit based on speculation about when the offender may be released.
78 However, judges are often called upon to make assessments about an offender's future, for example by considering prospects for rehabilitation. I see no reason why judges cannot draw similar inferences with respect to the offender's future conduct in prison and the likelihood of parole or early release.
79 The process need not be elaborate. The onus is on the offender to demonstrate that he should be awarded enhanced credit as a result of his pre-sentence detention. Generally speaking, the fact that pre-sentence detention has occurred will usually be sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, justifying enhanced credit. Of course, the Crown may respond by challenging such an inference. There will be particularly dangerous offenders who have committed certain serious offences for whom early release and parole are simply not available. Similarly, if the accused's conduct in jail suggests that he is unlikely to be granted early release or parole, the judge may be justified in withholding enhanced credit. Extensive evidence will rarely be necessary. A practical approach is required that does not complicate or prolong the sentencing process.
80 As well, when evaluating the qualitative rationale for granting enhanced credit, the onus is on the offender, but it will generally not be necessary to lead extensive evidence. Judges have dealt with claims for enhanced credit for many years. The conditions and overcrowding in remand centres are generally well known and often subject to agreement between the parties; there is no reason this helpful practice should not continue. There is no need for a new and elaborate process - the TISA introduced a cap on the amount of enhanced credit that may be awarded, but did not alter the process for determining the amount of credit to apply.
[85] Enhanced Credit Granted
In the case before me, Mr. Schultz agrees with Mr. Spratt that enhanced credit should be granted to Mr. Johnston. I considered the submissions made by Mr. Johnston, and the Affidavit filed by Mr. Johnston, outlining the conditions in which he has been incarcerated. I will also make reference to this Affidavit under the following sub-heading. I am satisfied that, despite the 3 misconducts that Mr. Johnston accrued, enhanced credit ought to be granted.
[86] Calculation of Pre-Sentence Credit
As such, the 749 days served by Mr. Johnston will be calculated as 1124 days. This is equivalent to 37 months.
COVID-19 PANDEMIC – IMPACT ON SENTENCING
[87] COVID-19 Conditions in Custody
Mr. Spratt submitted that Mr. Johnston should be given additional enhanced credit for the period of time from March 14 to today's date. Mr. Spratt submits that Mr. Johnston should be given an additional .5 of a day as credit due to the specific impact on Mr. Johnston due to the COVID-19 pandemic. These were outlined in Mr. Johnston's Affidavit, and include the following:
- Increased lockdowns since March 14th
- No family visits since March 14th
- Often not having access to telephones in cellblock
- Being unable to physical distance in custody
- Not being provided personal protective equipment such as masks or gloves
- Often not having access to soap in cells
- No programming
- Limited access to the chapel due to the physical distancing requirements
[88] COVID-19 Cases in Institution
I am also asked to consider the impact on inmates due to the emotional stresses related to COVID. I have been provided with confirmation that as of May 20, 2020 there is one confirmed case of COVID within the institution.
[89] Calculation of COVID-19 Credit
The period of time from March 14th to today's date is 82 days. If I was to grant enhanced credit for this time, at the rate suggested by Mr. Spratt, this would be a total of 41 days credit.
[90] Case Law on COVID-19 Sentencing
Mr. Spratt filed three cases for my consideration on assessing the impact of the COVID-19 pandemic when sentencing offenders: R. v. King (unreported; Justice L. Pringle; Ontario Court of Justice; April 8, 2020); R. v. Studd, 2020 ONSC 2810; and R. v. Hearns, 2020 ONSC 2365.
[91] R. v. King Analysis
In the King matter, Pringle J. did a careful analysis of how and why enhanced credit beyond what is statutorily prescribed, was appropriate in that case. This case supports the .5 credit per day that Mr. Spratt submits should be imposed for Mr. Johnston.
[92] R. v. Studd Analysis
In the Studd case, Davies J. ascribed additional credit to account for the very harsh lock-down situations that the offender was subject to for over a year at the Toronto South Detention Centre. In considering the impact of COVID-19 on Mr. Studd and the sentence to be imposed, the Court considered that Mr. Studd was immuno-compromised. The Court ultimately found that while a further 4 months of custody would be warranted to impose the sentence the Court found to be appropriate, the Court was "prepared to reduce his sentence by four months because of the risk he would face if he were to remain in custody of contracting COVID-19 and being subject to further lockdowns as a result of the public health emergency (para. 8)." The Court further stated:
42 The Supreme Court of Canada has recognized that there will be situations that call for a sentence outside the normal sentencing range because of the specific circumstances of a particular case. However, proportionality must still prevail. Individual or collateral consequences cannot reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
43 The risks posed by the COVID-19 pandemic to those who are incarcerated is one of those circumstances that can be taken into account when deciding whether a sentence below what would otherwise be imposed is nonetheless just and appropriate. Were it not for the COVID-19 pandemic, I would order Mr. Studd to serve a further four months in custody.
44 If I sentenced Mr. Studd to a further four months in jail, he would be subject to particularly harsh conditions throughout that time. He would face an ongoing risk of infection. He would also experience restrictive conditions as correctional institutions attempt to prevent infections and manage any outbreaks.
[93] R. v. Laurin Analysis
I note that a similar manner of reflection was utilized by Crosbie J. in R. v. Laurin, [2020] O.J. No. 1266 (O.C.J.). The Court was sentencing Mr. Laurin for the offence of dangerous driving causing death, following his guilty plea to the offence. The offender had a lengthy criminal record. The Court considered, and rejected, the possibility of releasing the offender on bail, to return for sentencing. Crosbie J. made the following comment in considering the issue of sentence, "[i]n relation to my earlier comments about the pandemic, should I have determined that a fit sentence required only a few months more of custody to meet the goals of sentencing, I would have had little hesitation in reducing the sentence to reflect time served, However, in my view, after much thought and deliberation, a fit sentence is one of three years."
[94] R. v. Hearns Analysis
In R. v. Hearns, 2020 ONSC 2365, Pomerance J. reviewed a number of cases and found that judicial notice could be taken of the COVID-19 pandemic, stating as follows, "[f]ortified by these authorities, I take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large (para. 14).
[95] Impact of Pandemic on Sentencing Principles
The Court went on to say the following, as it pertains to proportionality:
IMPACT OF THE PANDEMIC ON SENTENCING PRINCIPLES
15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.
16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.
[96] Determining Proportionate Sentence During Pandemic
Pomerance J. further expanded upon the method in which Courts should determine a proportionate sentence as follows:
22 First, I am not suggesting that the offender receive more than the statutory credit for pre-sentence custody. The accused is entitled to credit on a 1.5 to 1 basis and that is what he will receive. I am not at liberty to assign credit beyond that prescribed in the Code. The question is not whether, looking backwards, the offender is entitled to more credit. The question is whether, looking forward, the pandemic warrants reduction of the sentence yet to be served. The question is whether the sentence already served, calculated with 1.5 to 1 credit, is a sufficient penalty. Given the pandemic, it may be that a sentence of shorter duration is not only tolerable, but appropriate, in the interests of personal and public safety.
23 Second, I am not suggesting that the pandemic has generated a "get out of jail free" card. The consequences of a penalty - be they direct or collateral - cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk. See: R. v Day, [2020] N.J. No. 72, 2020 NLPC 1319. It is ultimately a question of balance. As noted by A.J. Goodman J. in R. v. T.K., 2020 ONSC 1935, at para. 74:
In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.
24 That balance is best informed by our collective approach to these issues. During these challenging times, people are being asked to call upon their sense of community, decency and humanity. That humanity must obviously extend to all individuals, including those incarcerated due to criminal charges or convictions. There will be cases where release from custody is not a viable option. There must be consideration of the safety of the community and the need for a proportionate sentence. Where, however, a period of time served can address sentencing principles, even imperfectly, our sense of humanity tells us that release from prison is a fit and appropriate response.
[97] Application of COVID-19 Considerations
I find the approaches in Studd, Hearns and Laurin to be compelling. If this was a case where the remaining sentence to be imposed on Mr. Johnston was one of mere months, I would not hesitate to sentence him in a manner that would permit him to be released from custody immediately. As I will indicate in the following section, I find that a lengthy period of custody must be imposed to satisfy the purpose, objectives and principles of sentencing, and most importantly that of proportionality.
[98] Court of Appeal on COVID-19 and Proportionality
I note that the significance of proportionality, even during the COVID-19 pandemic has been addressed by the Ontario Court of Appeal in both R. v. Morgan, 2020 ONCA 279, and R. v. Lariviere, [2020] O.J. No. 2264. Both of those cases addressed appeals by offenders, seeking a reduction in sentence that had been imposed prior to the pandemic. In Morgan, the Court held that:
8 In our view, it is not necessary to decide whether this court could take judicial notice of the effects of the COVID-19 pandemic to the extent to which the appellant would have us do that. We do, however, believe that it falls within the accepted bounds of judicial notice for us to take into account the fact of the COVID-19 pandemic, its impact on Canadians generally, and the current state of medical knowledge of the virus, including its mode of transmission and recommended methods to avoid its transmission.
9 In our view, the appellant's submissions fall into the category of collateral consequences for sentencing purposes. As Moldaver J. noted in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 48:
The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.
10 However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:
I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
11 In our view, the sentence imposed on the appellant was at the very low end of an acceptable range of sentence for the offence of aggravated assault. It was, indeed, a lenient sentence, given the injuries sustained by the victim and the fact that the appellant had a criminal record. To reduce the sentence any further would result in a sentence that is unfit, one that would be disproportionate to the gravity of the offence. As was observed by Wagner J. in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 18:
It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. (emphasis added)
[99] Proportionality in This Case
The offences for which I am to sentence Mr. Johnston are very serious. Mr. Johnston's moral culpability is very high. I will consider the impact of the COVID-19 pandemic on Mr. Johnston – not only for the time already served, but in considering the risks to mental and physical health in the remaining sentence to be served. I am, however, also required to impose a sentence that is proportionate to the gravity of Mr. Johnston's offences, and to the responsibility of Mr. Johnston for these offences.
SENTENCING FOR AGGRAVATED ASSAULT – WHERE FIREARM USED
[100] Relevant Case Law
On behalf of the Crown, Mr. Schultz submitted a number of cases for my consideration. The following cases were of assistance in my considering the matter before me: R. v. Bellissimo, 2009 ONCA 49; R. v. Ghebreigziabiher, 2012 ONSC 5384; and R. v. Larmond, 2011 ONSC 7170.
[101] R. v. Bellissimo – Sentencing Range
The Bellissimo judgment has become the starting point for any case involving the use of a firearm to commit an offence of violence, where the victim is wounded. The endorsement is a very brief one, and provides very minimal facts about the offences (including whether he was aiming at anyone in particular, and the motivation for the shooting), and no facts about the offender's background. Paragraphs 3-5 read as follows:
3 The Crown argues that the totality of the sentences imposed is manifestly inadequate. The trial judge imposed sentences totalling five years. He also gave the appellant credit for 3 1/2 years based on his pre-sentence incarceration. The effective sentence was 8 1/2 years. We agree that the range of sentence for these kinds of serious gun related offences is between seven and eleven years.
4 We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in the restaurant. One significantly injured a victim, another caused a minor injury to a victim and a third narrowly missed killing a third victim.
5 General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges. We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years. To achieve an effective sentence of ten years, we will vary the sentence imposed on count 12 (possession weapon dangerous) from eighteen months consecutive to three years consecutive resulting in a sentence of 6 1/2 years. (emphasis added)
[102] R. v. Ghebreigziabiher
In Ghebreigziabiher the offender plead guilty to aggravated assault, possession of a firearm while prohibited and other related offences. The Crown sought a sentence of 10 years, and submitted that the offender should only receive credit for pre-sentence custody on a 1-to-1 basis. The defence sought a sentence of 6-7 years with enhanced credit. Kelly J. imposed a sentence of 10 years less pre-sentence custody with enhanced credit. The sentence for the aggravated assault was 9 years, and the sentence for the possession offence was 1 year consecutive.
[103] Ghebreigziabiher Facts
The facts of this case were quite unusual. The offender attempted to rob the victim (who he had been socializing with all evening), and shot him in the back of the neck at close range. This narrowly missed a major blood vessel. The bullet went into the victim's jaw, through one sinus and came to rest in another sinus. The offender then pointed the gun at another person but didn't shoot. He ran off and changed his clothing. He returned and attempted to rob the victim again and was chased off. There was significant impact on the victim. The offender's source of income was the illegal drug trade and he had a record for offences of violence and drugs. He was assessed by a psychiatrist, and the finding was that anti-social personality disorder and cannabis abuse disorder could not be ruled out. The offender had an incredible amount of community support and was doing weekly programming while in custody.
[104] R. v. Larmond
In Larmond, the offender shot the victim in the abdomen, for reasons that continued to elude the Court, even following the jury trial. Belobaba J. referred to the Bellissimo decision, and briefly summarized a number of similar cases, stating as follows:
26 The Court of Appeal in Bellissimo stated that the range for serious gun-related offences where shots are fired and someone is wounded is 7 to 11 years. The case law indicates that the following factors are considered: the offender's criminal record; the extent of planning or premeditation; and the seriousness or permanence of the shooting-related injury. In cases where the offender has a criminal record for violent crime, where the shooting was planned or premeditated and where the victim was left paralyzed or sustained some other permanent injury, the global sentence was 8 or 9 years. For example:
- R v. T.J. - robbery using a firearm; shooter had a significant youth criminal record; shooting results in serious and permanent injuries; victim is paralyzed; 8 years.
- R. v. Shaffer - victim poaching marijuana plants is shot in the back; shooter has a dated criminal record but with three assault convictions; serious and permanent injury - victim rendered paraplegic; 8 years.
- R. v. Laing - debt collection; victim shot in chest; shooter has criminal record with crimes of violence and under a firearm prohibition; serious injury; 9 years.
- R. v. Walker-King - planned shooting of drug dealer; shot in abdomen; shooter has criminal record with crimes of violence; 8 years.
27 There are a few cases where a sentence of 11 years was imposed in fairly similar circumstances but in these cases, as the Court of Appeal observed, a sentence of 11 years was at the high end of the range. I am satisfied that the more usual sentence in cases where the shooting was planned or premeditated, the shooter had a criminal record with crimes of violence, and the resulting injuries were serious or permanent, is 8 to 9 years. Here, where the offender has a minor criminal record, with no crimes of violence, where the shooting was neither planned nor premeditated and the victim suffered no lasting injury, the sentence, in my view, should be 7 years.
28 This is, admittedly, at the low end of the range set out Bellissimo. However, in my view, for the reasons already noted, this is an appropriate sentence - and all the more so because of the following. Mr. Larmond is a "permanent resident." Given that the sentence imposed herein is more than two years, he will most likely be deported once the sentence is served. Because his immediate family, his fiancée and his three year old daughter are here in Toronto, the likelihood of deportation is a hardship that can be taken into account by a sentencing judge. I am therefore satisfied that a global sentence of 7 years is a just and fit sentence. (emphasis added)
[105] Similarities to Larmond
There are a number of similarities between the Larmond case and Mr. Johnston's case, including the limited record, the offence not being planned or premeditated, and the impact on the victim being minimal. I note that Mr. Larmond also faced potential immigration consequences.
[106] Defence Case Law
On behalf of Mr. Johnston, Mr. Spratt submitted the following cases for my consideration: R. v. Krzyworaczka, 2003 Carswell Ont. 8043; sentence upheld by the Ontario Court of Appeal at R. v. Krzyworaczka, [2006] O.J. No. 98; R. v. Murphy, [2016] O.J. No. 647 (O.C.J.); and R. v. Ferdinand, [2018] O.J. No. 6573 (S.C.J.). These cases, like those submitted by the Crown, were helpful in assessing the appropriate range of sentence to be imposed.
[107] R. v. Krzyworaczka
In Krzyworaczka, a pre-Bellissimo judgment, the offender was arguing with his spouse and went to get a loaded shotgun, and then shot her. Alcohol was not a factor. The accused immediately came to the victim's assistance after he shot her, and his actions likely saved her life. The exact injury was not described, but the judgment indicated that the victim had a lengthy hospital stay, was in considerable pain and suffering as she recovered, and that the wound has healed. The Court determined that the appropriate range of sentence for the aggravated assault was 5-6 years. The offender was convicted after trial, and was sentenced to 66 months (5.5 years) less pre-sentence custody. He also received a 9-month consecutive sentence for possession of a firearm while prohibited, and a 3-month consecutive sentence for trafficking in marijuana. Other concurrent sentences were imposed for a breach and other firearms offences. The total sentence imposed was 6.5 years. In 2006 the Ontario Court of Appeal upheld this sentence.
[108] R. v. Murphy
In Murphy, the offender plead guilty to aggravated assault and other related offences, on the first day of his preliminary hearing. The offender and the victim had been drinking together. An argument ensued and the offender threatened to shoot the victim. He fired a shot that missed. While the victim was running away from the house, the offender shot at him again. The bullet struck the victim in the face, and lodged in the neck / jaw area, after entering through the victim's nose. The bullet had to be surgically removed. The impact on the victim was very significant. There were many aggravating factors, including other persons close-by who could have been harmed and a criminal record including offences of violence such as robbery and assault with a weapon. The mitigating factors considered were that the offender was remorseful (and had even written a letter of apology), had engaged in rehabilitation, and had strong family support. Mr. Murphy's Aboriginal status was also a relevant factor (a Gladue report was filed). The Court determined that the appropriate sentence for the offences was that of 9 years. The Court imposed the mandatory minimum of 5 years on the reckless discharge offence, and thus imposed a 4-year consecutive sentence on the aggravated assault.
[109] R. v. Ferdinand
In Ferdinand, Schrek J. had to make findings of fact after a conviction by the Jury for the offences of aggravated assault and other related offences. Mr. Ferdinand had been found not guilty of aggravated assault at his first trial, and the matter before Schrek J. was a re-trial. The principal area of disagreement between the Crown and defence witnesses related to the offender's intent. The Court ultimately held that, "[h]aving considered all of the evidence, I find as a fact that the gun went off as described by Ms. Lymberopoulos and Mr. Ferdinand. I accept that Mr. Ferdinand produced the gun in order to scare everybody and that it went off unintentionally while he was removing it from his bag."(para 36)
[110] Ferdinand Factors
The Court considered the following factors:
- The 19-year old offender chose to bring a loaded handgun to a party
- The offender was intoxicated
- The offender made no attempt to assist the victim (his friend). Rather, he tried to cover up the crime by disposing of the gun and his clothing
- The offender caused severe and permanent injuries to the victim (spinal injury and now paralyzed and in a wheelchair)
- There was a significant impact on victim but the victim has forgiven the offender
- The offender wrote a letter of apology, and indicated at his sentencing hearing that he would have apologized sooner but was prohibited from contact
- The offender had no prior criminal record
- There were potential immigration consequences for the offender as he was a permanent resident but not Canadian citizen
[111] Ferdinand Sentencing Range
The Court distinguished Bellissimo as Mr. Ferdinand did not intentionally discharge the firearm. The Court held that, "the applicable range in cases where an accused unintentionally causes serious injury with an illegally possessed firearm is one of three to seven years." (para. 54)
[112] Ferdinand Sentence
In considering the mitigating and aggravating factors, the Court in Ferdinand determined that a sentence of 5 years (less pre-sentence custody) was the fit and appropriate sentence for the offence of aggravated assault.
[113] Distinction from Ferdinand
In the case before me, there is no evidence that Mr. Johnston accidentally discharged the firearm. Mr. Johnston and Mr. Poirier were arguing. Mr. Poirier was seated on a couch. Mr. Poirier is a large-statured man. Mr. Johnston picked up a loaded handgun and shot Mr. Poirier. As such, the nature of the offence is significantly different than the facts in Ferdinand. The offender in Ferdinand is also quite significantly different from Mr. Johnston.
[114] Crown's Sentencing Position
As indicated previously, the Crown is seeking a sentence of 7 years, a sentence at the bottom of the range as set out in Bellissimo. The Crown is not requesting any additional or consecutive time be imposed for the other offences for which Mr. Johnston has been convicted, indicating that concurrent sentences on all counts should be imposed.
[115] Defence Sentencing Position
Mr. Spratt submits that a sentence of time served would be appropriate, or at the very most, a further 12 months. This would result in a sentence of 37-49 months, or that of essentially 3-4 years. This would result in a sentence far below the range as set out in Bellissimo. There is simply no authority for such a sentence to be imposed in the matter before me. Such a sentence would be completely disproportionate to the gravity of the offence and the moral blameworthiness of Mr. Johnston.
[116] Sentencing Ranges as Guides
The Court of Appeal set out a wide range of sentence in Bellissimo, that being 7-11 years. In determining where a particular offender's matter fits within such ranges, Courts consider the nature of the offence and the mitigating and aggravating factors. I also note that such ranges are guides, and there will of course be cases where a Court finds that there are reasons to sentence an offender below the accepted ranges, or to impose a sentence which exceeds the high end of the range.
[117] Weighing Factors
In weighing the aggravating factors (which outweigh the mitigating factors in my view) and the mitigating factors, and especially as I consider Mr. Johnston's untreated addictions and mental health issues, I find that a sentence at the low end of the Bellissimo range is appropriate.
[118] Sentence for Aggravated Assault
I then factored in a consideration of the COVID-19 pandemic issues. As such, I find that it would be appropriate to reduce Mr. Johnston's sentence below the bottom of the range. I find that the appropriate sentence for Mr. Johnston for the offence of aggravated assault, is that of six and a half years.
[119] Consideration of Secure Treatment Unit
I will indicate at this time that I gave very careful consideration to imposing a sentence that would allow Mr. Johnston to serve his sentence at the Secure Treatment Unit. I could impose a sentence of two years less a day, followed by three years of probation. This would result in a total jail sentence of 5 years and one month. After significant consideration of this sentencing option, I was dissuaded by such a sentence, as I am concerned about Mr. Johnston's lack of insight, I have no evidence that he is motivated to address his addictions and mental health issues, and most importantly, such a sentence would be disproportionate to the gravity of the offence and Mr. Johnston's moral culpability.
SENTENCE
[120] Consideration of Factors
I have carefully considered the mitigating and aggravating factors in this case.
[121] Consideration of Principles
I have carefully considered the principles and objectives of sentencing, and the ranges of sentencing considered by other courts.
[122] Consideration of COVID-19 Impact
I have also carefully considered the impact on Mr. Johnston in serving a sentence during the COVID-19 pandemic – not only the time he has already served since the State of Emergency was declared on March 13, 2020, but the time he will continue to be in custody, and thus exposed to heightened risks.
[123] Sentence for Aggravated Assault
As indicated above, I find that the appropriate sentence to be imposed on Mr. Johnston for the offence of aggravated assault alone is that of six and a half years.
[124] Application of Totality Principle
However, I am also mindful of the principle of totality, and given that I view it as important to impose a consecutive sentence for the offence of possession of a prohibited weapon while subject to a prohibition order, I will reflect this in further reducing the sentence to be imposed on the aggravated assault to that of 5.5 years.
[125] Sentences Imposed
The following sentences will be imposed:
Aggravated assault (count 8) – credit for 749 days pre-sentence custody (the equivalent of 24.5 months) which, with enhanced credit is 1124 days (the equivalent of 37 months); and a further 29 months custody
Possession of a prohibited weapon while prohibited due to a court order (count 2) – 12 months consecutive
Possession of proceeds of crime exceeding $5,000 (count 3) – 12 months concurrent
Failing to comply with probation by possessing unlawful drugs without a prescription (count 4) – 6 months concurrent
Failing to comply with probation by failing to keep the peace and be of good behaviour (count 5) – 3 months concurrent
Uttering death threats to the police officers (count 6) – 6 months concurrent
Resisting arrest / obstructing police (count 7) – 6 months concurrent
[126] Total Period of Imprisonment
Thus, the total period of imprisonment going forward is 41 months, or just under 3.5 years.
[127] DNA Order
In regards to all applicable counts before me, I make an order for Mr. Johnston to provide a sample of his DNA, pursuant to s. 487.051(1) or (3) of the Criminal Code.
[128] Lifetime Firearms Prohibition
Pursuant to s. 109 of the Criminal Code, I am prohibiting Mr. Johnston from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for life.
[129] No-Contact Order
Pursuant to s. 743.21 of the Criminal Code, I am prohibiting Mr. Johnston from having any contact or communication, directly or indirectly, with Jean-Marc Poirier, while serving his custodial sentence.
[130] Forfeiture Order
Pursuant to sections 490 and 490.1 of the Criminal Code, I order that the drugs, drug paraphernalia, and weapons seized by the police, be forfeited to the Crown for destruction.
Released: June 4, 2020
Signed: Justice Kimberly E.M. Moore
Footnote
1See R. v. Haque, [2019] O.J. No. 3449 (O.C.J.); R. v. Ghebreigziabiher, 2012 ONSC 5384; R. v. Krzyworaczka, 2003 Carswell Ont 8043; R. v. Omoragbon, 2020 ONCA 336; R. v. Claros, 2019 ONCA 626.
