COURT FILE NO.: 7636/16 DATE: 2016/05/30

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAVED JAMES NADON

Counsel: D. Peterson, for the Crown J. Tremblay-Hall, for the Accused

Heard: May 18, 2016

Reasons on Sentencing

A.D. kurkE j.

[1] On May 18, 2016, Mr. Nadon pleaded guilty to eight Counts on a 22-Count Indictment: Pointing a Firearm (x2) (Counts 7 and 8), Utter Threat to Cause Death (Count 9), Forcible Confinement (Count 10), Possess Loaded Prohibited Firearm (Count 12), Attempt Murder with a Firearm (Count 13), Breach Probation (Count 19), and Possess Firearm Contrary to Prohibition (Count 20). On that day, agreed facts were provided to the Court, and convictions were registered.

[2] At the request of Mr. Nadon, the matter proceeded directly to sentencing. Crown and defence were in agreement that there should be a lifetime Order pursuant to s. 109 of the Criminal Code, Orders for DNA sampling pursuant to s. 487.051(1) and (2), and an Order of non-communication with witnesses pursuant to s. 743.21 of the Criminal Code.

[3] Where Crown and defence were not agreed was with respect to the appropriate period of incarceration. The Crown proposed a range of nine to twelve years, the defence seven to eleven years incarceration.

Facts

[4] The background to this case involves an allegation of theft of drugs by a person within the drug subculture in Sault Ste. Marie, Ontario. It is agreed that the victims of offences in this case and nearly all of the civilian witnesses are involved in that subculture.

[5] The accused was born May 1, 1994, the son of Berni Lynn Nadon, a person known for drug dealing in Sault Ste. Marie. Mr. Nadon was raised primarily by his maternal grandmother until she passed away when he was a teenager.

[6] At the time of the events in this case, Ms. Nadon was living in a house on the corner of Albert and Hughes Streets with her boyfriend Michael Bjornaa. The accused was subject to a 12-month order of probation for Assault and Breach of Probation, and a two-year firearms prohibition. Both these orders began December 11, 2013.

[7] Jayme Ryan Carlson Bellerose, whom the accused attempted to murder, is a drug addict and has been a criminal associate of the accused and Bjornaa in the past, thereby accumulating a significant criminal record. He is the father of three young children.

[8] In September 2014, Bellerose pawned a diamond ring with Berni Nadon for money to buy a birthday gift for his daughter. He intended to redeem the ring, but its seizure by police during the execution of a search warrant at Ms. Nadon’s home prevented that, and angered Bellerose.

[9] On October 17, 2014, Bellerose attended Berni Nadon’s residence, and stole $60 from a drawer while Ms. Nadon slept. On leaving the home, Bellerose was confronted by the accused with a baseball bat. They had words and then went their separate ways.

[10] Afterwards, the accused and Bjornaa met up and went hunting for Bellerose. Armed with baseball bats, they attended the Wellington Street apartment of Alex Gingras, apparently an associate of Bellerose, looking for, but not finding, Bellerose. They did find Bellerose at another apartment; he had a knife. Bjornaa struck Bellerose, and the accused demanded to know where his mother’s drugs were. Bellerose claimed that he only took money. A passing police cruiser seems to have de-escalated the conflict that day.

[11] On October 19, Berni Nadon and Bjornaa drove to Thunder Bay. While they were there, they met up with Johnathon Thompson, whom Bjornaa knew from serving a sentence in the Thunder Bay jail. Berni Nadon and Bjornaa invited Thompson, a man of imposing size, to return with them to Sault Ste. Marie. After Bjornaa’s probation appointment in Thunder Bay, the group returned to Sault Ste. Marie on October 21.

[12] At some point while Berni Nadon and Bjornaa were away, Bellerose returned to Berni Nadon’s apartment, where there was a confrontation and physical altercation between Bellerose, armed with a knife, and the accused, who had a bat. Bellerose confronted the accused about a threat he had allegedly made to shoot Bellerose, which the accused denied. Things went no further that day. However, when Bjornaa returned, he and the accused spoke about “kneecapping” Bellerose – shooting him in the kneecap.

[13] On October 22, 2014, Bjornaa, the accused, and Thompson left Berni Nadon’s residence. Bjornaa had armed himself with bear mace, Thompson with a flashlight, and the accused with a .22 calibre semi-automatic handgun.

[14] The group went first to Alex Gingras’ residence. The accused masked himself with a hoodie and a skull mask. As Thompson stood inside, and Bjornaa searched the apartment and demanded to know where Bellerose was, the accused grabbed Gingras by the ponytail, and put the gun to his face. The accused told Gingras: “we’ll kill you, you’re harboring him, I’ll kill you.” He then pointed the gun at Sherry Stone, who was also in the apartment, and gestured for her to be quiet. Bjornaa told the accused not to point the gun at her. Gingras and Stone were held while the apartment was searched. Once satisfied that Bellerose was not there, the group left.

[15] They went from there to another location on Wellington Street, the home of Dolly Bushey, where Bellerose did happen to be. Bjornaa knocked at the door and identified himself. Bushey let Bjornaa and Thompson in. From a bedroom, armed with a knife, Bellerose spoke with Bjornaa, who was in front of the bedroom door. Bjornaa asked Bellerose to come out. Suspicious, Bellerose peeked out the bedroom door, and observed the accused wearing the skull mask and holding a gun.

[16] The accused began shooting at Bellerose, who kicked closed the bedroom door. The accused continued shooting through the door, and then directly at Bellerose after kicking open the door. Bellerose told him “enough’s enough; I’m done. Stop now.” The final shot dropped Bellerose to the ground, and Bjornaa sprayed him with bear mace. The accused, Bjornaa and Thompson then fled the residence.

[17] A neighbour, Ben Veldt, called 911 when the shooting started. Two shots penetrated into Mr. Veldt’s residence.

[18] The accused had shot at Bellerose 14 times. Twelve shots struck home into Bellerose’s groin and chest. Bellerose was taken to the Sault Area Hospital, and transferred to Sunnybrook Health Sciences Centre in Toronto. Bellerose suffered a broken radius, broken ribs and a pneumothorax and hemothorax on his left side. Bullet fragments penetrated his abdomen and pelvis. His liver was penetrated, and fragments lodged in his spine and around his left sciatic nerve.

[19] The accused was arrested October 27, 2014, and has been in custody ever since.

Victim Impact

[20] Jayme Bellerose also goes by the name Jayme Carlson. It is in that name that he submitted a Victim Impact Statement. A “dropped foot” that resulted from the shooting has left Mr. Carlson permanently disabled. He notes that pain in his left leg and foot limits his ability to play with his children and walk long distances. He describes being emotionally overwhelmed by his physical limitations, since he was used to playing sports and running. He experiences chronic nerve pain, and his medication makes him drowsy, which limits his ability to work. He suffered substantial scarring from the injuries and his surgeries, and now lives with a metal plate in his left forearm, and with a bullet lodged in his spine.

[21] Dana Bellerose, Mr. Carlson’s mother, in her own Statement describes in great detail the emotional trauma she suffered when she learned of her son’s shooting. She stayed with her son in the Sault Area Hospital and Sunnybrook, at great personal expense. Her son has lived with her much of the time since the incident, and Ms. Bellerose has experienced his daily physical and emotional struggles.

[22] Alex Gingras has suffered from nightmares, and turned to drugs and alcohol to numb the emotional pain he experienced. At times, he has been unable to eat or sleep. He has experienced stomach problems from worrying. He is easily startled, and fearful of whom he might encounter in public places. He does not feel safe any longer in Sault Ste. Marie.

Background of the Offender

[23] Neither party sought the preparation of a Pre-sentence Report.

[24] Mr. Nadon, though a young man, has a substantial criminal/youth record. Since July 2009, when Mr. Nadon was 15, there are nine findings of guilt or convictions for offences involving violence or a weapon. There are also numerous convictions for breaching court orders and possessing or trafficking drugs. Indeed, at the time of these offences, the accused was on bail (from August 6, 2014) for drug possession and Breach Probation. While in custody, the accused was charged December 1, 2015 with trafficking marijuana.

[25] Mr. Nadon has had a challenging life. I am told that he only briefly knew his father, and received poor guidance from Berni Lynn Nadon and Mr. Bjornaa.

[26] While in custody, Mr. Nadon has taken programming for anger management and substance issues. Mr. Nadon has not yet completed grade 12, but is working towards it. He wants to complete high school and gain his qualification to become a diesel mechanic while in the penitentiary, so that he can eventually open his own shop.

[27] Concerning the offences before the Court, Mr. Nadon’s counsel points out that he was the youngest participant in the group, and was led to his misconduct by the older participants. Mr. Nadon denies any substantial planning of the events; rather, what is described is simply a fluid back and forth of escalating misconduct. He was motivated by a desire to help his mother.

[28] When submissions were concluded, Mr. Nadon took the opportunity to apologize to his victims, and to acknowledge his understanding of, and regret for, having hurt them.

Analysis

[29] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.2.

[30] This case involves very disturbing and unnecessary levels of gun violence. The offence of Attempted Murder with a Firearm alone carries a minimum penalty of five years incarceration. A sentence imposed for such conduct must focus on deterrence and denunciation, but take rehabilitation into account: R. v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 (C.A.), at paras. 30-31. Given Mr. Nadon’s youth, and his limited experience in adult court, I must also take rehabilitation into account as an important sentencing factor.

[31] In terms of aggravating factors, the following aspects deserve mention:

a. Mr. Nadon armed himself with a firearm before taking part in the criminal activity of October 22, 2014; b. Mr. Nadon was bound at the time by a firearms prohibition that should have kept him from handling any gun: R. v. Brown, [2007] O.J. No. 5659 (S.C.J.), at para. 11; c. He used that firearm against Mr. Gingras and Ms. Stone, while threatening to kill them, and unlawfully confining them; d. Mr. Nadon clearly went out looking for Mr. Bellerose with the intention of doing him harm; e. Mr. Nadon shot at Mr. Bellerose 14 times, striking him 12 times: R. v. Chevers, 2011 ONCA 569, [2011] O.J. No. 3893 (C.A.), at para. 9; R. v. Brown, [2007] O.J. No. 5659 (S.C.J.), at para. 11; f. His final victim, Mr. Bellerose, has suffered permanent debilitating physical injury from Mr. Nadon’s conduct: R. v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 (C.A.), at para. 33; g. Even apart from the physical harm to Mr. Bellerose, the offences have had significant emotional impact on victim Mr. Gingras; h. Mr. Nadon has a substantial record for offences of violence, and for breaching court orders during the course of his violent behaviour. He was on probation at the time of these offences.

[32] In terms of mitigating factors, I note the following:

a. Mr. Nadon pleaded guilty, although not until after a preliminary inquiry was held; b. In the context of Mr. Nadon’s apology to his victims, I accept that his plea of guilt is indicative of some measure of remorse; c. Mr. Nadon’s acceptance of responsibility for the most serious charges that he was facing must be accorded great value, given the difficulties that the Crown would likely face in proving the charges in the particular circumstances of the case. d. It is reasonable in the circumstances of this case to infer that Mr. Nadon was acting under the encouragement of older and more experienced persons; e. Mr. Nadon has attended anger management and substance issue programming while awaiting trial in this case; f. Mr. Nadon is still youthful, with plans for the future to finish high school, learn diesel mechanics, and open his own business.

[33] Generally speaking, the lower end of the range of appropriate sentence for attempted murder is nine years incarceration: R. v. Tan, 2008 ONCA 574, [2008] O.J. No. 3044 (C.A.), at para. 35. Even where the intent to kill is absent, sentences for serious firearms violence range from 7 to 11 years: R. v. Bellissimo, 2009 ONCA 49, [2009] O.J. No. 179, at para. 3; R. v. Jefferson, 2014 ONCA 434, [2014] O.J. No. 2560, at paras. 13-14.

[34] Counsel are agreed that, pursuant to the principle in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Nadon’s pre-sentence custody should be credited at the enhanced rate of 1.5 days for every day served. His period of slightly more than 19 months pre-sentence custody therefore equates to some 29 months (2 years, 5 months) to be deducted from the sentence imposed.

Conclusion

[35] The accused, armed with a loaded prohibited firearm, used extreme and unnecessary violence against Mr. Bellerose, leaving him permanently disabled but lucky to be alive. The accused appears to have pointed the same firearm at two other victims, to have threatened their lives, and to have confined them, to get information from them in order to find Mr. Bellerose. At the time, the accused was bound by court orders not to possess any firearm, and to keep the peace and be of good behaviour.

[36] In balancing all of the circumstances of this case, the Court must impose a deterrent and denunciatory sentence, but one which takes the prospects for rehabilitation into account. I impose the following sentences on the individual Counts:

a. Count 7, Point Firearm: 2 years concurrent b. Count 8, Point Firearm: 2 years concurrent c. Count 9, Utter Threat: 1 year concurrent d. Count 10, Forcible Confinement: 1 year concurrent e. Count 12, Possess Loaded Prohibited Firearm: 3 years concurrent f. Count 13, Attempt Murder with a Firearm: 10 years jail. From this amount must be deducted 2 years and 5 months for the pre-sentence custody. The Indictment will be endorsed with a total sentence of 7 years 7 months jail. g. Count 19, Breach Probation: 1 year concurrent h. Count 20, Possess Firearm Contrary to Prohibition Order: 3 years concurrent

[37] There will also be the following ancillary Orders:

a. a lifetime prohibition Order pursuant to s. 109 of the Criminal Code, relating to Counts 7, 8, 9, 10, 12, 13, and 20; b. Orders for DNA sampling pursuant to s. 487.051(1) (Counts 10 and 13) and 487.051(2) (Counts, 7, 8, 9, 12, and 20); and c. an Order of non-communication with Jayme Ryan Carlson Bellerose, Alex Gingras, Sherry Stone, Dolly Bushey, Ben Veldt, Michael Bjornaa, Johnathon Thompson and Rosemary Cheryl Pheasant while the accused is incarcerated, pursuant to s. 743.21 of the Criminal Code.

A.D. KURKE J.

Released: May 30, 2016

COURT FILE NO.: 7469/14 DATE: 2016/05/30 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DAVED JAMES NADON REASONS ON SENTENCING A. D. KURKE J. Released: 2016/05/30