ONTARIO COURT OF JUSTICE DATE: 2021 01 07 COURT FILE No.: 19-38200085; 20-103501-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ANDREW GABOURIE
Before: Justice Angela L. McLeod
Judicially pretried: April 8, 2020 and September 14, 2020 Pleas entered and findings of guilt on: November 5, 2020 Sentencing submissions on: December 15, 2020 Sentence imposition on: January 7, 2021
Counsel: Neil Reily, counsel for the Crown Bryan Badali, counsel for the accused Andrew Gabourie
McLeod J.:
OVERVIEW
[1] Mr. Gabourie entered pleas of guilt to the following Criminal Code charges:
(1) Arson endangering life, s. 433(a); (2) Breach of recognizance (possessing a weapon), s. 145(3); (3) Possession of an explosive substance, s. 117.01(1); (4) Throwing an explosive substance, s. 81(1)(c); (5) Uttering a threat, s.264.1(1)(a).
SUMMARY OF ADMITTED FACTS
[2] Mr. Gabourie was bound by a 12-month probation order issued on January 22, 2019.
[3] On October 18, 2019, he attended a local shelter to obtain accommodations. He engaged in conversation with staff, appeared to be intoxicated and made comments that he wanted to go to jail or to the hospital and could stab anyone as he had a knife.
[4] Staff called 911. The police attended, arrested Mr. Gabourie and found a knife on his person, search incident to arrest. He had two other knives in a satchel found at his feet. He told the police that he was having homicidal thoughts and that was why he was in possession of the knives.
[5] Mr. Gabourie was charged and released on a judicial interim release order (these charges were not pled to, but the facts are to be considered nonetheless).
[6] On November 7, 2019, police received a call for service regarding an arson at the Lucky Devil Tattoo parlour located at 81 Mississauga Street in the city of Orillia. Witnesses had observed, and recorded on video, a person throwing Molotov cocktails at the building.
[7] Upon arrival, police observed Mr. Gabourie, who was well known to them as they had investigated 11 prior occurrences of violent offences or mental health issues involving him. He was dressed in dark clothing, his hood was up, he had gloves on and had a bag with him. Officers detected a strong odour of gasoline emanating from his clothing.
[8] Multiple fires were burning, 4-5 in total. There was broken glass scattered around the entrance of the building. One officer retrieved a fire extinguisher from his police vehicle and attempted to extinguish the fires located on the ground. One of the fires was burning 12-14 feet up the side of the building, where a sign was located. One of the Molotov cocktail bottles was stuck behind the sign and was still burning. The fire department was called to assist; however, the officers were ultimately able to put out the fire before the fire personnel arrived.
[9] Mr. Gabourie was arrested. The investigation revealed that shortly before the police were called, around 2pm, Mr. Gabourie entered the tattoo parlour and told the female parties located inside that they should leave the building as he didn’t want to hurt them. He left and then returned approximately 15-30 minutes later and began throwing the burning bottles at the building. He was yelling “fuck you 81” and was ‘flipping off’ the occupants who were looking out the window. Mr. Gabourie had no connection to the building, the business or the occupants.
[10] At the time, there were 50-100 people in the area, as the business was located at one of the busiest intersections in Orillia. There were 10 people inside the tattoo parlour, and unknown occupants in the yoga studio located above on the second floor.
[11] Mr. Gabourie was bound by both the probation order of January 2019, and the judicial interim release order of October 2019. He was also bound by two separate weapons prohibitions; one imposed for life in 2013, and one imposed for 10 years in 2019.
[12] While in custody, some 4 days later, Mr. Gabourie told CNCC correctional officer Brad Zimmerman that he would kill him with a Molotov cocktail, like the one he threw at the Lucky Devil, and that he would kill his children and wife. He threatened to get “81 support club member affiliates, aka Hells Angels Outlaw Gang members to watch the parking lot of the jail and to follow him home and to kill his family”.
[13] There is no quantum of damage, and no request for restitution, as the business has since gone bankrupt.
[14] Mr. Gabourie has been in custody since the date of his arrest, November 7, 2019.
Aggravating and mitigating facts
[15] I find the following to be aggravating facts:
(1) Mr. Gabourie has a lengthy and serious criminal record; (2) The arson was planned and deliberate; (3) Mr. Gabourie came with many Molotov cocktails at the ready; (4) Mr. Gabourie utilized an accelerant; (5) Mr. Gabourie utilized an explosive substance; (6) There were many people inside the building; (7) There was another business located above the tattoo parlour; (8) There were 50-100 people in the area; (9) The building was located near one of the busiest intersections in the city; (10) There were 4-5 fires; (11) The fire department had to be called; (12) The police officers were put at risk but fighting the fires; (13) Mr. Gabourie was on release, on probation, and on multiple weapons prohibition orders; (14) Knowing there were occupants in the building, and having once warned them to leave, Mr. Gabourie did not warn them a second time (or concern himself with whether or not they had indeed left the building) and proceeded to throw the explosive Molotov cocktail bottles; (15) Mr. Gabourie threatened not only the correctional officer but also his family.
[16] I find the following to be mitigating facts:
(1) There is no evidence of significant damage to the building; (2) No one was injured; (3) Mr. Gabourie initially warned the occupants of the building to leave; (4) Mr. Gabourie has entered guilty pleas. The Crown argues this is attenuated by the lack of triable issues since the offence was captured on video and the accused was arrested on scene. I disagree, for reasons noted below at para. 64; (5) Mr. Gabourie has significant mental health issues; (6) Mr. Badali submits that it is mitigating that Mr. Gabourie did not have the means to carry out his threat to the CO Zimmerman. I disagree. The threat is the offence, and the resultant fear and concern is the harm done. The officer has no way of knowing, at the time of the utterance, whether the threat can or cannot be carried out. Indeed, it is likely that the officer would have be aware of Mr. Gabourie’s criminal record for violence (including a most recent conviction for assaulting a peace officer), or at the very least his designation within the institution.
POSITION OF THE PARTIES
[17] With respect to the first four convictions, the Crown seeks a global sentence of 3 years custody (1095 days); and, with respect to the utter threat, the Crown seeks a consecutive 90 days custody.
[18] The Crown submits that this position takes into consideration any Hearns [1] / Covid issues and argues against any Duncan [2] credit. Presentence custody credit should be limited to a Summers [3] enhancement only.
[19] The Crown seeks a s. 109 order for life and a DNA order. The Crown seeks the maximum probation term, with terms not to attend within 200 meters of the former tattoo shop location, not to contact Mr. Zimmerman, not to possess any incendiary devices, and to take counselling as directed.
[20] Mr. Badali, on behalf of Mr. Gabourie, submits that the appropriate global sentence is 729 days (2 years less one day), less presentence custody of 413 days (as of December 15, 2020, enhanced at a rate of 1.5/1 for a total credit of 620 days (as of December 15, 2020), less 109 days Duncan credit, for a remnant sentence of zero days. In effect, time served.
[21] At the time of this sentencing, Mr. Gabourie has an additional 22 real days of presentence custody, for a grand total of 435 real days. Enhanced pursuant to Summers, gives Mr. Gabourie a total of 653 days of presentence custody.
CIRCUMSTANCES OF THE OFFENDER
[22] A presentence report was neither sought nor proffered.
[23] Mr. Gabourie is 31 years of age. He is not married, nor does he have children.
[24] Mr. Gabourie’s criminal record was filed as an exhibit. There is a total of 33 convictions; 17 youth and 16 adult. There are 10 prior crimes of violence, multiple break and enters, an assault against a peace officer, weapons offences, thefts, mischiefs, drug possession, and breaches of court orders. Mr. Gabourie has served two prior penitentiary sentences for armed robbery and robbery.
[25] Mr. Gabourie struggles with mental health issues, including; PTSD, ADHD, a severe anxiety disorder and manic bi polar disorder. Upon his arrest, Mr. Gabourie told the police that the ‘devil made him do it’. Mr. Badali notes that the mental health issues do not rise to the level of a potential NCR defence, but do play a role in the offences.
[26] Mr. Gabourie takes Nabilone to prevent night terrors. He takes Clonazepam and Ativan for his anxiety disorder. He takes Lithium for his manic-bipolar disorder. He also takes Gabapentin and Abilify for mood stabilization. He takes Keppra for seizures.
[27] Mr. Gabourie had a difficult childhood. His parents separated when he was 1 year old. He was raised by his paternal grandparents. His relationship with his mother was abusive, and he was often locked in the basement and physically abused by her partners. He currently has no relationship with her. He struggled in school and was ultimately expelled before completing his high school education. He was introduced to drugs at a young age by his mother. He has a fractured employment history. He wishes to build a relationship with his father and desires to become an industrial painter. He plans to live with his father upon his release. He has a long-term girlfriend.
CIRCUMSTANCES OF THE PRESENTENCE CUSTODY
[28] Mr. Gabourie has spent the entire presentence custody period in Behavioural Stabilization Unit (formerly called Segregation). He appeared for the sentencing hearing via zoom, from behind the bars of his cell.
[29] Mr. Badali filed an email from Sgt. Jonathan Vanderboon, Security and Investigations, Central North Correctional Center (the institution where Mr. Gabourie has been held to date). At paragraph two, Mr. Vanderboon asserts, “[t]he Behavioural Stabilization Unit is in fact what was formerly referred to as Segregation. It is not considered segregation any longer with the implementation of a recreation program, dayroom time, and increased time out of cell.”
[30] Mr. Gabourie swore an affidavit in which he attested that he spends 23 hours per day in his cell. He gets 20-30 minutes of recreation in the yard, and time for a shower every other day. He eats in his cell. He has no interaction with other inmates. Everywhere he goes outside of his cell he is escorted by a correctional officer. He rarely sees his social worker. He is permitted to use the pay phone for up to one hour per day; the phone is handed to him through the hatch of the cell door. On two occasions, when the officers attempted to remove the phone from him, he tried to hold onto it in frustration. This resulted in his fingers getting caught in the hatch and injuries which required significant stitching on both occasions.
[31] I find that whatever new label has been applied to the unit that Mr. Gabourie has been housed in, it remains tantamount to segregation. He has not gained any increased time out of his cell, not been able to participate in a recreation program, not had access to a dayroom, and is given a mere 20-30 minutes of time in the yard – every other day.
[32] He has incurred some 30 plus misconducts while in custody. He links these misconducts to his mental health issues and attests to the fact that those issues are exacerbated by being in segregation for so long.
[33] He has engaged in frequent self harming behaviour. On the date of the sentencing hearing, he showed the court multiple large wounds on each bicep, the result of cutting himself. He required multiple trips to the hospital and stitches. His affidavit attributed the self harming to the need to relieve stress, anxiety and frustration. He advised that medical attention is not always immediately forthcoming when requested.
[34] Mr. Gabourie attested to the fact that initially the jail staff were not wearing masks when the pandemic was declared. There has been a noticeable decrease in staffing over the course of the pandemic.
[35] Mr. Gabourie attested to the fact that he rarely sees a mental health worker.
[36] Mr. Gabourie requested to be placed in general population. The facility offered to place him in the ‘step down unit’. Mr. Gabourie declined, for fear that his acceptance would be seen as a foregoing of his request to be in general population.
[37] Sgt. Vanderboon further advised in his email that:
[3][a] Tiered unlock range is described as a range of 32 (maximum) inmates divided into morning and afternoon unlock times. This means that one day an inmate will be out of their cell with a maximum of 15 other offenders in the morning for 3.5 hours, and the following day they would be out of their cell with the same group of offenders for the afternoon for 3.5 hours. This schedule rotates every day. Tiered unlock ranges are also referred to as a step-down ranged or reintegration range.”
[4] Once an inmate is admitted to the BSU, they are interviewed every 30 days by the area Manager and asked if they wish to remain in the BSU or if they would like to explore other options, tiered unlock, open range. The offenders are required to sign off on their decision each time.”
[38] The Crown submits that Mr. Gabourie could have gone to the step-down unit at anytime and so should not get any Duncan credit. The Crown has proffered no evidence in support of this submission, and no evidence of the outcome of the more than 30 misconduct findings against Mr. Gabourie.
[39] Mr. Badali submits that this is the standard claim by authorities, and that the defendant was not given a true and clear choice. Mr. Badali filed a letter dated November 4, 2020, from Sgt. Vanderboon in which he states that Mr. Gabourie:
(a) Was initially placed in a special handling range for inmates dealing with mental health issues (Nov.8/19); (b) The next day Mr. Gabourie requested to be moved to the BSU(Nov.9/19); (c) Was transferred to CECC on January 9, 2020, and then back to CNCC on January 24, 2020, where he was placed in BSU at his own request; (d) Agreed to go into the special handling range again between March 20th and March 25th, 2020; (e) Was returned to the BSU on misconduct for refusing an order; (f) Was back and forth between the BSU and the medical unit for suicide watch; (g) Was transferred to CECC on August 21, 2020, and returned to CNCC on October 12, 2020, and placed on the special handling range; (h) Was returned to BSU on October 17, 2020 on misconduct; (i) Was taken to the medical unit for suicide watch on October 18, 2020; (j) Was returned to the BSU on October 20, 2020; (k) Was charged with a total of 31 institutional misconducts ranging from disobeying an order to assaulting staff.
GOVERNING SENTENCING PRINCIPLES
[40] The fundamental purpose of sentencing set out in s. 718 of the Criminal Code is to protect society and to contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that have one or more of the following objectives:
(a) denouncing unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) deterring the offender and others from committing crimes; (c) separating offenders from society where necessary; (d) assisting in the rehabilitation of the offender; (e) providing reparations for harm done to the victim or to the community; (f) promoting a sense of responsibility in the offender, and acknowledging the harm done to victims and the community.
[41] The fundamental principle in sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
REVIEW OF CASE LAW – ARSON
[42] The Crown referred to two cases; R. v. Bevacqua, 2014 ONSC 6279, [2014] O.J. No. 5130, and R. v. Mirzakhalili, 2009 ONCA 905, [2009] O.J. No. 5464.
[43] Bevacqua, supra, is an arson endangering life in a domestic setting case. Mr. Bevacqua and his wife were separated; however, he lived in the basement and she and the children lived upstairs. After an argument, he removed his belongings and then set fire to a loveseat in the basement and left the residence. The entire basement was damaged and there was some fire and smoke damage to the first floor, and smoke damage to the second floor.
[44] Justice Ricchetti held that denunciation and deterrence are the paramount sentencing considerations in a case of arson endangering life. He noted,
[49] In my view, the appropriate range for arson endangering life is three to five years’ incarceration. After a review of a number of authorities, Justice Hennessy in Fournel determined that the range in these types of arson cases was three to five years. I agree.
[45] While I accept that the range articulated is a good starting point, I ultimately find this case is distinguishable as the offender did not suffer from any mental health issue or disorder as is the case with Mr. Gabourie.
[46] I do, however, agree that denunciation and deterrence are the paramount sentencing considerations at play in the case herein.
[47] Mirzakhalili, supra, is an arson damage to property and arson for a fraudulent purpose case. The respondents, father and son, caused a fire at their family business with an intent to defraud in insurance company of $200,000. The trial judge had sentenced each party to a conditional sentence of two years less a day. The Crown appealed.
[48] The Court of Appeal provided the following guidance:
(1) Conditional sentences are not appropriate for serious arson offences [3]; (2) Pre-planning of an arson is an aggravating factor [6]; (3) The use of an accelerant is an aggravating factor [8]; (4) Arson ‘jeopardizes the lives of fire fighters and other emergency personnel [9];
[49] The Court substituted a sentence of 2 years less a day in custody.
[50] Mr. Badali filed an extensive casebook. The cases addressed: the appropriate sentence or sentencing range; Hearns, supra, credit; Duncan, supra, credit; and, the effect of segregation and any presentence credit to be applied therefore.
[51] The cases support a wider range of sentences, from 18 months to 3 years and beyond. The facts vary greatly, but some include mental health issues, domestic contexts, accelerant usage, varying criminal records, no injuries, injuries, damage and no damage.
[52] The cases most informative to the case at hand are R. v. Wiklum, 2011 SKPC 73, R. v. Hanson, 2020 BCSC 1248 and R. v. Bohemier, 2020 MBPC 33.
[53] Wiklum is a case of a 46-year-old Aboriginal accused who struggled with significant mental health issues, including bi-polar disorder. She lit some paper and threw it into the bedroom window of her estranged spouse’s house knowing that the spouse and the neighbors were inside. She had a dated criminal record. The sentence was 18 months custody.
[54] Hanson is a case of an accused breaking into a stranger’s home and setting fire to items on a porch, while the family was asleep inside. One of the victims suffered minor burns. The accused was 33 years old, grew up in a home with alcohol problems, struggled with alcohol and drug issues, struggled academically, was often unemployed and had made attempts at cutting himself.
[55] The Court in Hanson found as an aggravating factor the absence of a warning to the occupants of the building and affirmed that the sentencing range is 3-5 years custody. The Court imposed a lower sentence given the accused’s significant efforts at rehabilitation.
[56] Bohemier is a sentencing following a guilty plea. The accused was a vulnerable adult with severe mental illness and mental disability. The accused barricaded himself in his unit after assaulting another tenant. He then set fire to his comforter. The Court noted that mental illness in this case significantly reduced moral culpability:
[20] When an offender suffers from a mental illness or disability, a sentencing judge must consider whether there is a connection between the condition and the offence for which the offender is charged. Where there is evidence of a diagnosis and its impact on an accused, the sentencing judge can draw a nexus between the condition and the offence. That is, the judge should take it into account in assessing the offender’s moral culpability.
[57] The sentence was 2 years custody.
[58] The assessment of moral culpability for defendants with significant mental health issues was highlighted in R. v. Ayorech, 2020 ABPC 137, wherein Justice Brown referred to an Alberta Court of Appeal decision involving the same party:
[16] Mental disorder can mitigate a sentence significantly. The Alberta Court of Appeal articulated this principle in an earlier case of Mr. Ayorech, R. v. Ayorech 2012 ABCA 82. Elaborating the point, the court said:
“…mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that is was carried out during a period of delusions, hallucinations or such… It is sufficient that the mental illness contributed to the commission of the offence.” (at para 10)
“The relative importance of deterrence and denunciation is attenuated when sentencing mentally ill offenders. This principle applies even if there is little prospective of complete cure and rehabilitation.” (para 11)
“The gravity of the offence is not, of course, lessened by the personal circumstances of the offender. However, the mental disorder diminishes the degree of responsibility of the offender. Impaired reasoning, delusional disorders, and like medical conditions distinguish those afflicted from the ordinary offender who is fully accountable for his or her conduct.” (para 12)
“…the effect of imprisonment should be taken into account when it would be disproportionately severe because of the offender’s mental illness.” (para 13)
[17] Other Court of Appeal decisions, including R. v. Shevchenko 2018 ABCA 31, have confirmed the mitigating factor of mental illness:
“Put simply, an offender who has significant mental illness is generally considered to have less moral blameworthiness than someone operating with an unimpaired view of the world. It is therefore imperative that a sentencing judge appreciate the extent and manifestation of the illness and link it to the degree of moral blameworthiness. A further important consideration is the role such illness may have played in the commission of the offence. Rarely do the offence and the mental illness stand entirely apart. The offence must be viewed in the context of the mental illness.” (para 28)
[59] Mr. Ayorech had a lengthy and related criminal record, he was on three successive release orders at the time of his offences, he was abusing a domestic partner, and there were long lasting impacts on the victims.
[60] Justice Brown imposed a custodial term of 12 months for the arson count.
[61] I find that Mr. Gabourie’s mental health issues played a role in these offences. This is exemplified by his comments during the event, and thereafter to the police. As such, his moral culpability is reduced, and the importance of denunciation and deterrence is lessened.
REVIEW OF CASELAW – HEARNS / COVID CREDIT
[62] In R. v. Clarke, 2020 ONSC 3878, Justice Kelly endorsed Hearns, writing at paragraph 19, “[t]he circumstances of COVID-19 adversely affect the conditions of imprisonment. There are increased risks for those incarcerated in any institution.”
[63] Justice Kelly identified further COVID factors that warrant mitigation at paragraph 24(b), “[t]here was a plea of guilt. The plea resulted in a saving of resources in a post-Jordan era and in a COVID-19 era where judicial resources have been drastically reduced.”
[64] I find that there is further mitigation in a guilty plea during the present pandemic. Guilt pleas eliminate the need for witnesses to attend trials, and thus eliminate the need for difficult decisions about attending in person (and being potentially subjected to risk, or subjecting others to risk) or attending remotely. A guilty plea, during COVID, serves to help control the community spread of the virus.
[65] In Hearns, Justice Pomerance held that the impact of the current global pandemic “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.”, and, “[c]onsideration of these circumstances might justify a departure from the usual range of sentence..” (para 15 and para 16).
[66] I take judicial notice that the COVID-19 health crisis was declared a global pandemic on March 16, 2020. This knowledge is universal, and the date was ensconced in judicial findings found at paragraph 76 in R. v. Prince, 2020 ONSC 6121, as just one example of many.
[67] Hearns credit can be both a retrospective and a prospective consideration.
[68] It is prospective in that the offender will be serving a sentence in an institution wherein there is a heightened risk of contracting the virus, heightened anxiety about that risk, an utter lack of ability to ameliorate that risk, where there may be staffing shortages and resultant lock downs, where there may be reduced programing due to staffing shortages and concern about inmate contact. The conditions of a sentence served during a global pandemic are more difficult.
[69] It is retrospective is that the offender has been in custody during a global pandemic when there has been a heightened risk of contracting the virus, heightened anxiety about that risk, an utter lack of ability to ameliorate that risk, where there may be staffing shortages and resultant lock downs, where there may be reduced programing due to staffing shortages and concern about inmate contact. Presentence conditions during a global pandemic are more difficult.
[70] I find that Mr. Gabourie’s presentence custody would have been more difficult, and the anxiety felt by most offenders would be exponentially so by Mr. Gabourie, who suffers with a severe anxiety disorder. He has attested to the stress and the impact on his mental health. He has sadly engaged in self harming behaviour as a result.
[71] I find that any sentence that Mr. Gabourie serves hereafter will be more difficult than normally so. His severe anxiety disorder is exacerbated by the stress of incarceration during a global pandemic. He will not receive the same programs or services due to staffing issues.
[72] I find that any sentence that Mr. Gabourie serves hereafter will be more difficult because the institution is clearly not able to address his mental health issues effectively, and he will continue to be housed in the BSU and segregated.
REVIEW OF CASELAW – DUNCAN CREDIT
[73] Duncan, supra, established that additional credit may be afforded to an offender where there are particularly harsh presentence conditions.
[74] In R. v. Abdella, 2020 ONCJ 245, Justice Kozloff referenced higher court decisions:
[84] In the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. R. v. Duncan, 2016 ONCA 754 Ont. C.A.
[85] In R. v. Inniss, 2017 ONSC 2779 (Ont. S.C.J.), M.D. Forestell J. writes (at para. 36):
I do not read the endorsement in Duncan as requiring evidence of the specific impact on the offender in every case. Where, as in the case before me, the evidence establishes that the offender was confined to a cell for extended periods of time on multiple days and denied access to fresh air for a total of over one year of his incarceration, hardship may be inferred.
[75] I have direct evidence, from Mr. Gabourie’s affidavit, which specifically ties the stress of being on the BSU to his self-harming behaviour. I accept that evidence wholly.
[76] Even if I did not have this evidence, I would have inferred a hardship, following the chain of reasoning articulated in Inniss, supra.
REVIEW OF CASELAW – SEGREGATION
[77] Justice Baldwin, in R. v. Gallagher, 2015 ONCJ 439, wrote:
[47] [a]nother significant factor in this case is the effect of segregation on this particular offender.
[49] Mr. Gallagher has physical and mental health disabilities as noted above, and there is no doubt that being in segregation was extremely hard for him to endure. I completely reject the Crown’s submission that Mr. Gallagher may have preferred segregation as he craves peace and quiet.
[78] As noted above, the Crown submits that Mr. Gabourie choose to stay in segregation and refused to go to the ‘step down unit’.
[79] In R. v. Roberts, 2018 ONSC 4566, Justice Morgan wrote:
[29] It is the Crown’s view that since Mr. Roberts chose segregation of his own volition, he deserves no special consideration for having spent so much time there. Counsel for the Crown points to R. v. Jeffries, 2017 ONSC 6172, where the defendant chose segregation because he was schizophrenic. As a result, no enhanced credit was awarded by the court. He likewise relies on R. v. Georgiev, 2017 ONSC 1265, where the court refused to order enhanced credit where the defendant asked to be in segregation because he was beat up in general population.
[30] While a defendant’s free choice of segregation may weigh against any enhancement of credit for time served, the questions are whether the choice was truly free and whether the impact on the defendant was in any case adverse. Thus, for example, in Georgiev, at para 47, the Court did not say that there could be no enhanced credit for time served in segregation during pre-trial detention. Rather, what the Court held was that enhanced credit would not be granted under the circumstances as “there was not evidence of any adverse effect on him flowing from the conditions of incarceration.” Crown counsel says that the same is true of Mr. Roberts.
[31] I cannot agree with the Crown here. The record before me contains the uncontroverted affidavit of Mr. Roberts, who deposes as to the adverse impact that segregation had on his psychological well-being. He indicates that he withdrew into himself, turned highly anti-social, and became reluctant to go out into the general population. He says that he became extremely anxious at any interaction with other inmates…
[33] Similar observations have been made in Ontario. In R. v. Burton, 2018 ONCJ 153, [2018] OJ No 1250, at para 96, Green J. stated that, “There have now been numerous studies about the impact of long placements in segregation and new standards on how long an inmate may remain in segregation have been released in response to these studies.” This was confirmed by Associate Chief Justice Marrocco in CCLA v. The Queen, 2017 ONSC 7491, at para 254, where he held that, “…the practice of keeping an inmate in administrative segregation for a prolonged period is harmful and offside responsible medical opinion.” With these findings now widely published, the court in Burton, supra, at para 96, went on to state, “I am satisfied that I can take judicial notice of the harm this would case.”
[40] Other courts have previously held that even a genuine request to stay in segregation does not necessarily mitigate its harshness, and an in any case lead to enhanced credit: R v Oben, 2013 ONSC 1100, at para 42. Mr. Roberts’ case, where the review process was faulty and his ‘voluntariness’ was really a façade created by the perfunctory reviews he received, is all the more egregious.
[80] I find that Mr. Gabourie was not an active participant in the process of deciding where he was housed. I find that the 31 misconducts were the true reason for his placement in the BSU, coupled with the institutions inability to deal with his mental health issues, and his past behaviours when incarcerated.
[81] I find that Mr. Gabourie, was not provided with sufficient information about the “step-down” range, if any was provided at all. As such, I find that he did not, and could not, have made an informed and free choice.
[82] I find that Mr. Gabourie’s presentence custody would have been more difficult because he has spent that time in conditions tantamount to segregation for well over a year – 435 days to be exact.
CONCLUSION
[83] The appropriate sentences, considering all of the factors noted above, are:
(1) Arson endangering life – 900 days, PLUS s.109 for life, DNA, probation for 36 months; (2) Breach of recognizance – 30 days consecutive; (3) Possession of explosive substance – 60 days consecutive PLUS s.109 for life, DNA, probation for 36 months; (4) Throwing an explosive substance – 120 days consecutive PLUS s.109 for life, DNA, probation for 36 months; (5) Uttering a threat – 90 days consecutive PLUS s.110 for 10 years, DNA, probation for 36 months. (6) All probation orders are concurrent to one another. Conditions are: (a) Statutory conditions; (b) Report to probation, by telephone or in person, within 2 business days of your release from custody; (c) Report for the full duration of the probation; (d) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with Brad Zimmerman, or any immediate family member of Brad Zimmerman; (e) Do not be within 250 meters of any place where you know Brad Zimmerman or any immediate family member of Brad Zimmerman to live, work, go to school, frequent or any place you know them to be, EXCEPT for required court attendances; (f) Not to be within 200 metres of 81 Mississauga Street, in the City of Orillia; (g) Not to possess any weapons as defined in the Criminal Code; (h) Not to possess any explosive substances; (i) Not to possess any incendiary devices; (j) Participate in such counselling as may be directed by the probation officer; (k) Sign releases and provide proof of completion of counselling to the probation officer.
[84] The total sentence of 1200 days is reduced accordingly:
(1) Summers, supra, credit of 635 days (435 x 1.5); (2) Duncan, supra, credit of 435 days (435 x 1); (3) Hearns, supra, credit (prospective) of 130 days.
[85] The end result is a sentence of time served.
[86] The information can be endorsed as:
(1) Arson endangering life – suspended sentence, noting 900 days credit; (2) Breach undertaking – suspended sentence, noting 30 days credit; (3) Possession of explosive substance – suspended sentence, noting 60 days credit; (4) Throwing an explosive substance – suspended sentence, noting 120 days credit; (5) Utter a threat – suspended sentence, noting 90 days credit (6) TOTAL SENTENCE OF 1200 DAYS REDUCED BY 1200 DAYS CREDIT.
Released: January 7, 2021 Signed: Justice Angela L. McLeod