Court File and Parties

COURT FILE NO.: CR-17-52 DATE: 2018/09/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Malcolm Valade

Counsel: André White, for the Crown Solomon Friedman, Counsel for the Accused

HEARD: July 30, 31 and August 1, 2, 2018

REASONS on sentencing

leroy, j.

[1] Malcolm Valade (Malcolm) is charged with threatening death contrary to paragraph 264.1(1)(a) and discharge of a firearm while being reckless as to the life or safety of another person contrary to subsection 244.2(1) of the Criminal Code.

[2] Malcolm pled guilty to the charge under subsection 244.2 and a conviction was entered on July 30, 2018. Counsel asked me to express my position on sentence assuming the mandatory minimum is constitutional and assuming the mandatory minimum is not. Today is not a final disposition; rather it is a ruling the parties can rely on going forward. Malcolm pled not guilty to the charge under paragraph 264.1(1)(a). Over the four day hearing, the threat issue was heard first followed by a Gardiner sentence hearing.

Background

[3] On Sunday, October 25, 2015, one of the issues in the Valade family was inter-generational succession planning for the family construction business. The principal owner, Melvin Valade (Melvin) was in poor health and his effective function in the business in decline. He required dialysis three times weekly. Melvin died on August 29, 2016.

[4] Malcolm said he wanted to discuss Melvin’s failing health and the direction they ought to be taking with the business, whether to keep going 100% or “put the brakes on.” The scene was the home on the family farm and Valade Construction central.

[5] Melvin had been dating Diana Burd for approximately nine months. She was present.

[6] Malcolm had until then, worked exclusively for Valade Construction. In the run-up to October 25, Malcolm and his spouse, Christine, who worked full time elsewhere, occupied the void in business operation resulting from Melvin’s declining capacity. Malcolm said their workload was exhausting and they were burning out.

[7] The fulcrum lay between Malcolm and Christine’s desire for recognition, their view of fair compensation for the work they were doing and assurances of an orderly transition of business control and Melvin’s seeming intransigence about relinquishing ownership of the business to Malcolm and Christine.

[8] As much as a family run business can be typical, such was Valade Construction. Melvin for the most part had managed the trucking side and Malcolm managed the backhoe/excavation side. Historically, they knew their roles and ran an efficient operation. Melvin alluded to the symbiosis in his statement to police October 25, 2015.

[9] They did not operate on Sundays. It was a day for family and planning for the work week ahead. Malcolm described informal weekly strategy meetings at the farm house on Sundays.

[10] Although Malcolm and Christine resided in the farmhouse, there were no proprietary boundaries. Melvin’s attendance on the property was indiscriminate. It was his refuge.

[11] Ms. Burd described how she and Melvin went to restaurants for breakfast on Sundays. She recalled attending at the farm eight or ten times to collect Malcolm and Christine on the way to Sunday morning breakfasts.

Trial Evidence

[12] A security video showed Melvin and Diana Burd exiting the house trundling toward their vehicle. Melvin continued to the vehicle. Malcolm is seen at the doorway. Diana Burd returned to the interior of the house for sixty-one seconds after which she exited and walked quickly to the vehicle. Malcolm exited the house with a long gun. As the vehicle was leaving Malcolm shot one round from a distance of 10 – 15 feet which struck the right top tailgate. The vehicle departed and Malcolm returned to the house. The defence acknowledged the authenticity, reliability and continuity of the video.

[13] The slug penetrated the exterior tail-gate panel and did not penetrate the interior panel.

[14] Melvin provided an audio/video recorded statement to police on October 25, 2015. Defence agree the video is admissible on the principled basis of necessity and reliability. The defence position is that the officer led Melvin when it came to the threat allegation to the point of eliminating probative value in what he said about it.

[15] Melvin said Malcolm had never shot at him before – At 2:00 p.m. he said that Malcolm had threatened to do so in the past and responded in the affirmative when the officer asked if Malcolm had threatened to shoot him today.

[16] At 2:32, Melvin alluded to Malcolm’s threat to walk away from the business if Melvin declined to accede to their demands. When the officer said that was not a threat, Melvin said “Wanted to shoot me? – Something like that – he was going to shoot me – he didn’t have a gun in his hand.”

[17] Diana Burd testified for the Crown. Ms. Burd provided her statement to police immediately before Melvin’s interview. She said she had never been part of Valade Construction business discussions. She understood that Christine left a voice message on Melvin’s phone while she and Melvin were at breakfast asking him to attend the farm because she wanted to talk.

[18] Ms. Burd noted that Christine was upset and crying when they arrived. Christine demanded that Melvin transfer half the business to them or she would quit. Malcolm entered the room and confirmed that he required a transfer of half the business into his name.

[19] Curiously, Melvin said they wanted him to attend a law office to complete a will providing for the transfer and to transfer half of the bank account into Malcolm’s name. When Melvin demurred, Melvin recalled that Malcolm told him to leave, which he did. Melvin did not mention the threat to kill him at that stage of the interview.

[20] Ms. Burd described how the situation escalated. The subject of Melvin’s mental competence and reliability in business affairs was broached. She thought Malcolm was like a crazy man. She said Malcolm threatened Melvin – he said he would shoot Melvin’s brains out. After a few minutes, Malcolm told Melvin and Ms. Burd to get the fuck out of his house and they did.

[21] As she traversed the driveway, Malcolm reminded her of how she lamented Melvin’s “forgetfulness” on matters important to her. She could not let that go and returned to the house for the 61 seconds. She refused to allow Malcolm to speak that way to her. She was unconcerned for her safety.

[22] Malcom acknowledged an emotional discussion. The topic was one they had tried to address many times. He and Christine were burning out with the workload and Melvin was unwilling to address plans for the future. He denied saying he would get a gun and shoot Melvin’s brains out.

[23] In the police interview (acknowledged voluntary), Malcolm said he had no recall of telling Ms. Burd he was going to shoot Melvin.

[24] At trial, Malcolm recalled a sense of discouragement following another failed attempt to persuade his father to establish a plan for succession but that when Melvin and Ms. Burd left the house that was the end of the interaction for that day. It was Ms. Burd’s sixty-one second tirade when she said “you are going to regret this” ending with a loud “Fuck You” as she made her way out that roiled his brain.

[25] Malcolm did not connect Ms. Burd to the shooting when he was interviewed by police; rather he lamented the sad relationship he had with Melvin.

Governing Principles

Paragraph 264.1(1)(a)

[26] The essential elements include:

Uttering or conveying a threat to cause death or bodily harm; and An intent to threaten.

[27] The actus reus of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm. The Crown need not prove that the intended recipient of the threat was intimidated by it or took it seriously.

[28] The mens rea of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat or that the accused intended to carry out the threat. A subjective standard of fault applies; however, in order to determine what was in the accused’s mind, a Court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them.

Base Principles

[29] The basic premise fundamental to all criminal trials is that Malcolm is presumed innocent, unless and until the Crown proves his guilt beyond reasonable doubt. This presumption stays with him throughout the trial. The burden of proof is always on the Crown regardless of what evidence defence provides, fails to provide or chooses not to provide. Malcolm does not have to prove anything.

[30] The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence.

[31] In cases where there is defence evidence, the approach to the determination of guilt or innocence cannot proceed as a credibility contest. If I believe defence evidence on an element of the offence or if I am not sure about that evidence, I must acquit. Even if defence evidence fails to raise a reasonable doubt about an element, I still have to determine whether Crown evidence, in the context of all the evidence, has proved each element beyond a reasonable doubt.

[32] A reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. A reasonable doubt is a doubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. While more is required than proof that the accused is probably guilty, a reasonable doubt does not involve proof to an absolute certainty, R. v. Lifchus (1997), 1997 SCC 319, 118 C.C.C. (3d) 1 (S.C.C.). Proof beyond reasonable doubt falls closer to sound deduction than to proof on a balance of probabilities.

Approach to credibility and reliability of testimony

[33] There are at least four elements to consider when a witness describes events she claims to have observed or experienced: perception; memory; communication; and sincerity. Credibility and reliability are different. Credibility has to do with the witness’ veracity. Is the witness worthy of belief? Are we confident the witness was trying to be truthful and not deceiving us? Reliability has to do with the accuracy of the witness’ testimony. Accuracy engages consideration of the witness’ ability to accurately observe, recall and recount events in issue. A witness whose evidence on an issue is not credible cannot give reliable evidence. Credibility is not a proxy for reliability; a credible witness may give unreliable evidence; R. v. C.(H.), 2009 ONCA 56 – per Watt J.A.

[34] It is said that the real test of the truth of the story of a witness is its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those circumstances. Such considerations as whether a witness has reason to give evidence more favourable to one side than to the other, the inherent reasonableness of testimony, internal consistency, uncertainties in respect to details, plausibility and myriad considerations involving a witness’ objectivity, ability to observe, remember and communicate and consistency with other evidence and availability of other sources of information are brought into the assessment.

[35] I can believe some, none or all of a witness’ testimony.

[36] Both counsel, in submissions, alluded to the issue of Ms. Burd’s bias or absence of bias.

Actus Reus

[37] The witnesses testified to occurrences during a fraught heated interaction where the protagonists believed the stakes were high and trust regarding good faith had evaporated. At least in so far as control of the business was concerned, Melvin held the advantage. When he determined to withdraw from further discussion, Malcolm and Christina would have been very upset.

[38] People say things in the heat of the moment. This family dynamic was dysfunctional in good times. The end was nigh and livelihoods were at stake. They had trod this road before. Many mean threatening words were exchanged over time. Malcolm was (is) damaged goods. His negotiation and debating skills with his father were compromised. It is plausible that Malcolm said the words attributed to him by Ms. Burd. It is plausible that as he said them the thought disappeared as quickly as the sound.

[39] Ms. Burd is the genesis for this count. Her animus towards Malcolm and Christine was palpable. I accept she told Malcolm he would pay for his behaviour during her sixty-one second intervention. She aggrandized the narrative to the police. She heard two shots when there was one. I don’t accept the Crown submission she could have mistaken the bullet impact with the vehicle as a second shot. The distance was 10 – 15 feet. The shot and impact would seem simultaneous.

[40] Ms. Burd barely knew Malcolm but, in her view, Malcolm was spoiled, petulant and required psychiatric care. Melvin sourced her perspective. Melvin told her all the time about how Malcolm had a good salary, resided in the farmhouse free of rent paying no bills and had all the toys.

[41] Malcolm was charged and pled to 3 counts of breaching bail release conditions. The relevant events occurred before Melvin passed; however, Ms. Burd reported them to police posthumously.

[42] Ms. Burd acknowledged there was a lot of confusion and yelling during that day’s interaction. The discussion deteriorated to angry recrimination.

[43] Melvin overlooked the threat when he laid out the narrative to the interviewing officer the first time. There are possible explanations. One could be there was no such threat. One could be Malcolm had said so many stupid things along the way this was nothing more and it wasn’t worth mentioning. One could be the shooting completely overshadowed details of the arguments or threats in the home.

[44] Melvin’s initial focus was on the threat that Malcolm and Christina would move on to other pursuits. He needed Malcolm and Christina to sustain business viability.

[45] I am confident that a death threat would not have been disclosed by Melvin if the officer had not been apprised during the preceding interview with Ms. Burd and then put the matter directly to him.

[46] Accepting for the moment that Malcolm said the words, he did not have the requisite mens rea to establish a basis for finding of guilt on this count.

[47] If he said he would shoot Melvin’s head off I accept as fact that Malcolm did not intend to intimidate Melvin or to be taken seriously by anyone. This was this family’s colloquial speech in this ongoing drama. Melvin who had known Malcolm as long as Malcolm lived was neither intimidated nor did he take the threat seriously. Their acrimonious conversation carried on until Malcolm demanded that his father and Ms. Burd leave his home. They did.

[48] I reject the Crown submission to the point that the post-offence conduct, namely the actual shooting confirms the mens rea of the offence. As they left, Malcolm appealed to Ms. Burd’s sensibilities. If she ignored him and went to the vehicle that was the end of the incident and these folks go on with their days. Regrettably, Ms. Burd’s intervention was a game-changer.

[49] So in the final analysis, I am satisfied that Malcolm said some stupid words that noon hour, he doesn’t recall detail; Ms. Burd, notwithstanding her animus towards Malcolm and the effect that had on her credibility, as a first time witness to the Valade family dialogue, would tend to discern threats none of the others discerned, reported literally what she heard Malcolm say.

[50] Malcolm had just lost another in the endless round of discussions with his father over the respective value and return each ought to be entitled to from the business. He was discouraged but would go to work the next day. The words amounted to Valade family vernacular. No intent to intimidate or be taken seriously.

[51] Accordingly the threatening charge is dismissed.

Sentence

[52] The parties approached the sentencing analysis from polar positions. They are far apart on what a fit and just sentence is in this case.

Circumstances of the offence

[53] On October 25, 2015, midday, no intoxicants, following the latest of many recent arguments over the future of Valade Construction in which emotions were very high, Malcolm Valade did something incomprehensible – he charged out of the house loaded long gun in hand as his father was leaving with his girlfriend, and discharged the rifle striking the right top area of the tailgate from a distance of about 10 – 15 feet.

Sentence parameters

[54] The minimum sentence under s. 244.2 is four years imprisonment. The maximum sentence is fourteen years imprisonment. There is a mandatory s. 109 firearms/weapons prohibition. This is a primary designated offence so a DNA order is mandatory – 487.051. The general rule is that credit for time spent in pre-trial custody is limited to one to one. The exception may only be granted where the circumstances justify it and the enhanced credit may not exceed one and one-half days credit for each day spent in pre-trial custody.

Positions of counsel

[55] The Crown seeks imprisonment for a period of five years together with the ancillary orders.

[56] The defence seeks imprisonment for a period of twelve months, followed by probation for three years – the ancillary orders are not contentious. Mr. Valade should be credited with one and one-half days for 190 days spent in pre-trial custody.

Circumstances of the offender

[57] Mr. Valade’s circumstances and moral blameworthiness are disputed. The Gardiner hearing delved into factors the Crown sought to prove as aggravating and factors the defence sought to prove as mitigating. The Crown burden of proof is beyond reasonable doubt. The defence burden is more likely than not.

Crown case

[58] The Crown position is that Malcolm Valade is a spoiled petulant man.

Diana Burd

[59] Ms. Burd began dating Melvin nine months ahead of October 25, 2015. Melvin was sick throughout. Melvin suffered renal failure in August 2015.

[60] Ms. Burd said she had little interaction with Malcolm, yet she displayed strong antipathy towards him.

[61] She depicted the father/son relationship as “not a good relationship”. She said she witnessed Malcolm cursing, speaking down to his father and saying things such as “I wish you were dead.” She never saw Melvin belittle Malcolm. Her relationship with Malcolm was fine except when she told him to stop being so aggressive towards his father.

[62] Ms. Burd acknowledged that Malcolm challenged her when she and Melvin were leaving towards the vehicle regarding her lament over Melvin’s unreliability and she returned to the house to make her point, namely that Malcolm could not speak to Diana Burd the way Malcolm spoke to his father.

[63] She denied saying “You are going to regret this” and the parting “fuck you”.

[64] Contrary to the context depicted at trial, Ms. Burd characterized the threat she heard during the argument as disrespect rather than threat.

[65] In cross-examination, Ms. Burd denied having heard about a suicide attempt. In her statement to police, she said Malcolm was always saying he was going to kill himself or kill someone else. I accept this emanated from Melvin.

Joanne Smith

[66] Ms. Smith confirmed she believes Malcolm attempted to murder his father to get the company. She did not try to mitigate her expression of bias against Malcolm and Christine.

[67] Joanne Smith provided bookkeeping services for Valade construction between June 2013 and October 2015, attending the office Mondays and Fridays.

[68] She depicted a strained working relationship between the two generations. She observed Malcolm and Christine verbally abuse Melvin – She said Christine yelled at Melvin, that she tagged him with such expletives as fat bastard, asshole, prick.

[69] She never observed physical confrontation.

[70] She related an occasion when Malcolm wanted a new expensive half ton. She said Malcolm told her that after Malcolm took a loaded gun and asked Melvin which of the backhoes gets the brains that Melvin agreed to buy the truck. She had never seen guns on the property.

[71] Ms. Smith did not report this incident to the police.

[72] This witness recounted how in June 2015 Christine asked Joanne to attend the house for a meeting without Melvin, the point of which was how to undertake corporate control of Valade Construction. This disclosure was made during the trial. Ms. Smith did not keep notes of the meeting.

[73] Ms. Smith acknowledged she was unaware of the corporate share ownership structure. She understood that Malcolm was an employee without ownership interest. That was consistent with how Melvin treated Malcolm in the business. She eventually agreed that Malcolm could be an owner, but did not seem to recognize how that would tend to mitigate the truck piece or aggravate the interaction of owners when one treated the other as a mere worker.

Sheldon Crites

[74] Mr. Crites knew Melvin for 48 years. They were in business together. Mr. Crites read the affidavits and letters offered by defence for this hearing. In his view, they contain half-truths.

[75] Mr. Crites maintained arms-length with Malcolm. He had few interactions with him and no business dealings.

[76] He recounted an event when Malcolm was upset with something Melvin told him. He said he observed Malcolm kick the mirror off of Melvin’s truck.

[77] Mr. Crites denied having ever observed Melvin belittling or expressing shame over Malcolm. He agreed Melvin did not trust that Malcolm could assume management of the construction business when Melvin died. Melvin observed that Malcolm was too prone to conflict with the public.

[78] On cross-examination, it was apparent that Mr. Crites was influenced in his appraisal of Malcolm’s sense of entitlement more by things Melvin said than anything he personally observed. Mr. Crites’ perspective was hearsay emanating from Melvin. Melvin believed that Malcolm was not cut out for management, that his demeanor upset people, Malcolm was unaware of technical requirements of operations or employment rules.

Melvin Valade

[79] On a stand-alone basis without context, Melvin comes off as a sympathetic individual during the statement. His perspective based on his experience and disposition was that what Christine and Malcolm were asking was unreasonable. People do not make life-changing decisions on the spot. After all, Melvin did not use them badly. Melvin was just like a tree on the prairies – all alone. Malcolm is lucky: he gets a house and pay check. He referred to Malcolm’s suicide attempt in 2006 as his little bit of bull shit.

The defence evidence

[80] The defence evidence targeted reduced moral blameworthiness inherent in all the circumstances of this case.

[81] Malcolm and Christine Valade provided affidavit evidence and submitted to cross-examination. Their evidence is essentially uncontradicted. No one saw through the veil of family presentation and what happened behind closed doors.

[82] The material offered by Christine and Malcolm reveal from their perspective based on their experience and disposition, Melvin was narcissistic, manipulative, controlling, exploitive, egocentric, cruel and violent towards Malcolm and within the family. Melvin’s benevolence was conditional. He could remove anything he provided, earned or not. He disregarded appropriate boundaries. Yet Melvin was urbane and generous to third party business associates and sometimes employees. Presentation was everything. The Valade family had to present as perfect to the outside world.

[83] If what they say is true, it is no wonder Malcolm has been affected by mental health issues for ten years.

[84] This was an unhappy family. The two perspectives were irreconcilable. Both Malcolm and Christina agreed that Malcolm, in that environment, exhibited anger management issues.

[85] Malcolm did not change his persona to influence sentence considerations. The defence submitted many letters from contractors, people who Malcolm worked with, neighbours and friends most of whom had relationships transcending October 25, 2015.

[86] What jumps out of the letters of support from co-workers whose time with Malcolm transcends October 25, 2015 is that in the workplace and in social interaction he has always been known to be organized, disciplined, courteous and composed. In social settings, he is known to be kind, respectful, supportive, patient, caring always eager to lend a helping hand. Peers in the workplace view him as a vital team member. He is well liked by the work crews and fits in easily with his outgoing personality.

[87] Of all the letters, Laurent Leblanc’s dated July 27, 2018 characterizes Malcolm so very much differently than Melvin and Mr. Crites on and off of the worksite.

[88] The incident on October 25, 2015 was out of character. Melvin agreed with that assessment.

[89] Malcolm has come to recognize the harmful influence that the dysfunctional relationship he had with his father brought to bear on his mental health. Malcolm has participated in counseling regularly since April 19, 2016.

[90] I have no doubt of the sincere remorse Malcolm feels for his actions. On one hand, the incident concluded the opportunity for ongoing mutual destruction. On the other, the opportunity for reconciliation disappeared.

Purpose and Principles of Sentencing

[91] Sentencing is an individualized process. All sentences must proceed on a case by case individual basis.

[92] The fundamental purpose of sentencing and its objectives are to denounce unlawful conduct, deter the offender and others from committing like offences, separation of offenders from society when required, rehabilitation, making reparations and promotion of a sense of responsibility and acknowledgement of the harm done by the offender (s. 718 Criminal Code).

[93] The weight to be assigned to any one objective varies with the particular circumstances of each case.

[94] Restraint is required for a first-time offender. The restraint principle requires consideration of all sanctions apart from incarceration. Where incarceration is necessary, the term should be as short as possible, tailored to the individual circumstances of the offender. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s. 718.2(d) Criminal Code).

[95] The fundamental principle of sentencing is proportionality. A sentence must be proportionate and broadly commensurate with the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 Criminal Code). The two perspectives on proportionality should converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. A sentence cannot be fit if it does not respect the fundamental values outlined in the Charter – R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R.206 at para 48.

[96] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) Criminal Code).

Aggravating and Mitigating Factors

[97] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.

[98] The absence of a factor is neutral.

Mitigating factors

[99] The focus of the hearing was on the circumstances of the offender and the context for the events of October 25, 2015.

[100] As a whole, the circumstances of the offender are mitigating. The family relationship was toxic. Malcolm’s emotions and maturity were arrested from an early age. Although not to the same extent as the young man in R. v. Millar, referenced below Malcolm had a love/hate relationship with his father. He had a lengthy history of symptoms of mental health deficiencies in his intra-family engagement.

[101] He proves to be a much more capable and successful manager, friend, employee and person than his father estimated.

[102] The fact of the guilty plea is mitigating. He did not have a criminal record. There was no planning. He is remorseful. He has a strong support network. He is a responsible and diligent worker. He is pro-social. He attended to the anger management and mental health issues inherent in his actions. Melvin perceived Malcolm’s actions as out of character. He wrote a letter to the Court on February 19, 2016 supporting Malcolm’s bail review plan wherein he wrote that the events of October 25, 2015 were exceptional and uncharacteristic.

Aggravating Factors

[103] Crown counsel suggested that the fact of family violence is an aggravating factor under the Criminal Code. Paragraph 718.2(a)(ii) depicts spousal abuse as a codified aggravating factor.

Parity in Sentencing

Crown Authorities

[104] The book of authorities offered by the Crown is tunneled on urban gun violence related to gang activity.

[105] R. v. Bellissimo, [2009] O.J. No. 179, 2009 ONCA 49 – The offender fired several shots into a restaurant – significant injury to one victim, minor injury to another and near death to another. The court determined that general deterrence and denunciation must be given paramount weight for these kinds of dangerous gun related crimes – sentence varied to ten years imprisonment.

[106] R. v. Jefferson, 2014 ONCA 434 – Jefferson shot his former friend and fellow drug dealer who he thought had ratted him out – guns tools of trade – Sentenced to ten years imprisonment.

[107] R. v. Ali, 2016 ONSC 8190 – Boxing Day shooting in an Ottawa mall – families with small children nearby – no one but the intended victim injured – ten years reserved for serious injury. Sentenced to 8 years imprisonment – 7 for the shooting and one consecutive for carrying a weapon while prohibited.

[108] R. v. Mohamed, 2016 ONSC 492 – guns and gangs conviction under s. 244.2(3) for firing a 9 mm handgun four times into the air on a residential street in Ottawa – this is case dealing with process an Ontario Court Justice must follow on a constitutional challenge to the mandatory sentence – Mohamed held the gun for period of time, there were civilians nearby – Mohamed was a repeat offender – serious record – already served five years in penitentiary. He was sentenced to 8 years imprisonment considering the young age and aspiration for rehabilitation.

[109] R. v. Mohammad 2017 ONCJ 297 – s. 244.2(3)(a)(i) – drive-by shooting – two hand guns, cocaine, an escape plan – Mohammad is the driver and instrumental to the efficacy of the drive by – Court referenced R. v. Morrisey, 2000 SCC 39 where there had been a hunting accident – criminal negligence causing death – 4 year minimum for failing to take extra care when hunting in close proximity – in the drive-by the point was retaliation for court testimony years ago – mandatory minimum of five years was not in excess of what is required in this case. Sentence – 2017 ONCJ 298 - Five years and six months imprisonment.

[110] In reasons for sentence Bourgeois J. cited an excerpt written by Molloy, J. in R. v. Ferrigon, 2007 ONSC 16828, [2007] O.J. No. 1883 where she addressed the denunciation and deterrence principles in weapons related offences, drawing from R. v. Danvers, 2005 ONCA 30044, [2005] O.J. No. 3532 at para 29:

From these and many other similar cases, I conclude that the protection of society must be a paramount consideration when sentencing for offences involving loaded handguns. General and specific deterrence and denunciation of the conduct involved are of particular importance in reaching a fit sentence. That does not mean that other sentencing factors become irrelevant whenever a handgun is involved. However, those other factors may be less influential if the sentence that might otherwise be imposed would not constitute sufficient condemnation of the conduct or adequate protection of the public.

Defence Jurisprudence

[111] The defence jurisprudence attempts correlation of the essence of the misbehaviour and moral blameworthiness with the case at bar.

[112] R. v. Labbe, 2012 QCCQ 2794 – careless use of firearm s. 86 Criminal Code – intoxication – there were two shots in air while outside, a third through a window from inside the house and a fourth self-inflicted – conditional sentence in Gladue context.

[113] R. v. Pariseau, 2006 ABPC 13 – s. 85 – Pariseau, thinking his wife was in a house with another man fired a bullet through the back door and demanded entry – occupant was not with Pariseau’s wife and ended up clubbing Pariseau with the blunt end of an axe – Pariseau pled to possession of gun for a purpose dangerous to the public – Pariseau intended further mischief – he thought his wife was in the house – this was not the case of an intoxicated man losing control of his emotions and carelessly discharging a firearm that endangers others. A certain amount of forethought was necessary for a man in full possession of his faculties to make the decision to drive to Mr. Gordon’s home with a loaded rifle and use it as he did – 9 months imprisonment and probation.

[114] R. v. Kerrivani, 2004 NLSCTD 112 – Assault with weapon, improper use of firearm and uttering threat - after receiving massage from escort service Kerrivani was unhappy with service and requested return of money – he was holding a firearm at the time – conditional sentence and two years’ probation – factors included no planning, guilty plea, remorse, no CR and offence completely out of character.

[115] R. v. Kumarluk 2011 QCCQ 12729 - careless use of firearm – 86(1)(3)(a), pointing firearm – 87(2)(a), - offender intoxicated, argument with complainant, got into fight, offender retrieved a gun and discharged it into the complainant’s house wall – went home and said he was going to kill the complainant – loaded another Winchester – pointed Winchester at the police officer at his window trying to calm him down – he had a record – positive PSR, maintained sobriety, family support – one shot fired – sentenced to 22 month conditional sentence plus probation.

[116] R. v. Millar 1994 – Moldaver J. trial judge – manslaughter - Millar killed his father – finding was that Millar was in frenzied state consumed with blind rage. The killing occurred as a result of a violent explosion in his mind which amounted to a release, as it were of the many powerful emotions including fear, anger, rage, hostility which had been building in him as a result of the more than 25 years of horrendous domination he suffered and forced to endure at the hands of his father. The precipitating incident was innocuous – straw that broke the camel’s back. Scott Millar was plainly and simply a battered and abused child. He found himself in a love/hate relationship with his father from which he could not extricate himself. Scott Millar was not a danger to society. But for a few brief moments, he had never engaged in violent conduct. Scott Millar was as much victim as perpetrator. Millar loved and hated his father – suspend sentence – probation.

[117] I disregarded R. v. Thanancheyana 2012 ONCJ 487 where the charge was careless use of firearm involving intoxication, the offender took loaded shot gun to work and fired one round into the ceiling. The sentence was 90 days: factors included guilty plea, no CR, good work history, out of character, remorse. The gravity of offence is not comparable.

[118] R. v. O’Neill 2009 SCK Thompson J. – plea to careless pointing of firearm, carrying firearm for purpose dangerous to the public, possession of firearm while prohibited, uttering threat to cause bodily harm – domestic – complainant attended at the house to collect a chair and brought a male friend with her – exchange words – offender got shotgun – pointed it at her – pointed away and fired – pointed it at her feet and enquired about whether she liked her foot and said hope you have fun at the hospital – she left – he had a criminal record – sentenced to twenty months imprisonment plus probation.

[119] Defence directed me to R. v. Mantione 2007 ONCJ 419 – Para 20 – Angelo Mantione, while not condoning his son’s actions in any way, asked that the Court not punish his son with extreme severity. The effect of the other letters is a request that the Court show mercy for this one time mistake which they believe would not be repeated. In his book ‘The Family Story’, the renowned Lord Denning, the best known British Judge of the last century and arguably the most erudite, said that one the qualities of a judge is ‘to be merciful, so as to show that he too has that quality which droppeth as the gentle rain from heaven to the place beneath’.

The Fit Sentence

[120] The Crown submissions are:

1. The Crown accepted a plea of guilty to 244.2 and not a lesser offence involving a firearm and he should be sentenced accordingly;
2. The primary focus in sentence under s. 244.2 is denunciation and deterrence – concern for mercy is displaced;
3. By the grace of God, Malcolm did not hit Ms. Burd – Malcolm was aiming at Diana Burd – he was trying to kill her – all of the family background is so much red herring - the sentence can’t go from life to one year – that offends sentencing principles;
4. Malcolm is petulant, spoiled and not nice;
5. Melvin was nice – he was neither mean nor belittling in his statement to police – Melvin was compassionate – he did not want his son in jail and supported bail release – Melvin said they needed each other in the business;
6. Recidivism is an issue – Malcolm threatened suicide and that is a form of violent manipulation – there is a need for specific deterrence – Court should conclude that Malcolm and Christina were the mean ones in the picture;
7. Taking the defence case at its highest, Malcolm was angered because Melvin shut down over succession planning – we cannot countenance this kind of response because someone is being mean;
8. There is no merit to the reduced moral blameworthiness submission arising from the toxic father son relationship;
9. Family violence is an aggravating factor under the Code.

[121] The defence submissions are:

1. Malcolm did not plead guilty to attempted murder. A life sentence was never an option; consequences do matter even when not linked to moral blameworthiness – for example impaired driving and impaired driving causing death;
2. This was an unhappy family – every unhappy family is unhappy in its own way – Malcolm is not an angel; he has been battling mental health demons for ten years; Melvin was not the devil but he was far from perfect – the father/son relationship was fraught;
3. We are divided on the facts – that Melvin saw his son differently than for example Laurent Leblanc does not justify or excuse Malcolm’s actions on October 25, 2015, but they do put it in context; we learned more about Melvin from the Crown witnesses: Sheldon Crites when questioned about times when Melvin belittled Malcolm confirmed that Melvin treated Malcolm as an employee/worker and not as owner and that Melvin doubted Malcolm’s managerial capacity even asking Mr. Crites if he would take over after Melvin’s decease; Melvin showed the ultimate disrespect for his son when he gave his entire estate to the daughter so she could sell the business off in parts; Melvin’s health was in serious decline beginning in August 2015 – in his police statement he asked rhetorically “Is this a decision I am going to make in ten minutes?”; Melvin referred to Malcolm’s suicide attempt in 2006 as a little bit of bull shit; Melvin could be pleasant but he treated his son with disregard; Malcolm was a broken man;
4. Joanna Smith confirmed that Melvin treated Malcolm as employee and not part owner – In that context she thought Malcolm acted inappropriately;
5. Diana Burd knew Malcolm through Melvin’s eyes and was tainted accordingly;
6. The family lacked boundaries. Melvin did not distinguish business from family. Malcolm and Christine and their home were for his pleasure and convenience;
7. Malcolm did something incomprehensible to us and to him – he regrets his actions profoundly – not for the consequences but for what he did – the Court should look beyond the five or so minutes before and after he discharged the gun; he attended counselling since the first release; his counsellor’s opinion regarding risk of recidivism is worth at least the opinion of a probation officer; the support letters are extraordinary – all writers are fully aware of the particulars of the offence; Malcolm has a strong support system; the people Malcolm interacts with socially and in business see a generous, thoughtful, empathetic man good with his boss, underlings committed to providing good service to customers;
8. The same can’t be said for the people who get five – ten years. They are unrepentant blackguards – those who use hand guns as tools of their trade – drugs and gang violence – Bellisimo, Jefferson, Ali, Mohammed, Mohamad. The facts in the case at bar are worlds away from urban gun violence related to gang activity. Malcolm is not in the same spectrum;
9. The Valades owned guns for use on the farm – they had the requisite licencing;
10. The Crown is unable to offer a similar set of circumstances to match the term of imprisonment it is seeking; the offence could have been careless use of a firearm; the gravamen of the offences offered by the defence book of authorities is much closer to those at bar, but the charges were different;
11. Malcolm was a broken man suffering from mental health issues, history of suicidal activity, living a toxic environment without boundaries and it boiled over. He did the incomprehensible. This was fleeting and he deserves Court’s mercy. Denunciation is met; there is no need for specific deterrence; Malcolm is ashamed of his behaviour.

Discussion

[122] I looked for a ruling that resulted in a five year sentence of imprisonment for this offence.

[123] In the case of R. v. Oud, 2016 BCCA 332, the offence of intentionally discharging a firearm into a place knowing or being reckless as to whether another person is present was committed by the offender after he gave money to a woman to buy crack cocaine for him at a house. When she failed to return, the offender knocked on the door and spoke to a man. The offender realized he was not going to get the crack cocaine and was angry. The offender returned to his vehicle, loaded a gun used earlier in the day for target shooting and shot seven times through the door. One grazed the cheek of a person in the suite and three lodged in a wall above a person. On appeal, Mr. Oud was sentenced to five years imprisonment. Mr. Oud was 35, held steady employment, addicted to and under the influence of cocaine at the time of offence. He had one prior conviction in 2006 for impaired driving. The range of sentence accepting the mandatory minimum as constitutional was between five and six years.

[124] Mr. Oud’s culpability separated him from the best-offender whose circumstances would limit his exposure to the minimum mandatory sentence of four years.

[125] That appeal court noted the shift to the need for firmer response to gun offences. The cases offered by defence as comparables were dated and should be read understanding that courts and Parliament, have taken a newer, firmer response to gun offences. The court noted that the importance of denunciation and deterrence are elevated where the offence involves urban gun violence related to gangs and “any shootings involving consciously reckless behaviour”.

[126] I accept as fact that Malcolm was a broken man in October 2015. An oft said axiom is that we can select our friends but not family. Laurent Leblanc, I think wisely observed that family and business can be volatile. From Malcolm’s perspective his father exploited his talents as backhoe operator through his life. Notwithstanding having dedicated his life to the family business his father dismissed him as future owner. Although he didn’t know it, Malcolm’s services were in high demand outside the family business. One view could be that Melvin contrived circumstances to ensure Malcolm did not figure it out.

[127] I am not persuaded of some of the Crown submissions. The purposes and principles of sentencing apply to every offence. Proportionality remains as the fundamental principle of sentencing. General and specific deterrence and denunciation of the conduct involved are of significance. That does not mean that other sentencing factors become irrelevant; rather those other factors may be less influential if the sentence that might otherwise be imposed would not constitute sufficient condemnation of the conduct.

[128] Malcolm shot at the vehicle. I do not accept that he was aiming at Ms. Burd. Melvin said Malcolm is a good shot and if he was trying to hit one of them he would have. This was not an attempt murder case.

[129] Crown witnesses unwittingly depicted Melvin as the person Malcolm and Christine knew him to be. The key crown witnesses, namely Sheldon Crites and Diana Burd framed their perspective on Malcolm based on Melvin’s depictions. Neither had the benefit of experiencing Malcolm in circumstances free of Melvin’s influence. They heard one side of the story.

[130] I do not equate suicide attempt or ideation to violent manipulation or as so much bull shit. That is the view of a cynic and Melvin was cynical when he dispassionately dismissed his son’s cries for help. I do not accept that Malcolm threatened suicide to get a truck.

[131] I agree with the crown submission to the point that resort to a gun is an unacceptable option to settle family disputes. Defence agrees. As Mr. Friedman said Malcolm did the incomprehensible and he cannot take it back.

[132] I accept there is room to reflect on the effect that the toxic father son relationship had on Malcolm’s moral blameworthiness. It is not a red herring.

[133] I accept that the factual submissions offered by defence are closer to reality than those offered by the Crown. Defence evidence persuasively demonstrated that Malcolm is much more accomplished on multiple levels than Melvin depicted him to Crites and Burd. Malcolm is not a risk for recidivism. He is in a better place now than he was on October 25, 2015. He is prosocial and has the benefit of strong family and friend support.

[134] The facts here are distinguishable from the urban gang shootings in public places where loss of innocent by-standers lives becomes a random experience. Any one of us any time. They are much closer to the fact scenarios offered in the defence book of authorities.

[135] The circumstances here are such that on the basis the mandatory four year minimum period of incarceration is constitutional the evidence confirms that Malcolm would qualify as the best offender (compare to Oud who was not) so that the sentence would be four years imprisonment together with the ancillary orders.

But for the mandatory minimum

[136] The shot was fired in anger and frustration. It was one shot. No one was harmed and that was deliberate. Malcolm’s anger management was decimated by his experiences through his lifetime, from his view he and his spouse were going above and beyond in their efforts to carry on, they were exhausted and facing burnout, they wanted some commitment one way or the other and it was not forthcoming. He had good intentions. Neither he nor Christine were accomplished negotiators.

[137] Although it could not be argued and was not, the extent of the dysfunction in the case at bar is not of the same genus as in R. v. Millar, the point is that although the precipitating event was innocuous from the perspective of a bystander it was the tip of the iceberg in the lives of the members of this family.

[138] Resort to gunfire cannot be countenanced. General deterrence and denunciation of the conduct are of particular importance in reaching a fit sentence. The gravity of offence demands a period of imprisonment.

[139] The gravity of the crime is what it is. The mitigating factors and reduced moral blameworthiness in relation to the circumstances of the offender are significant. He is a first time offender and restraint in sentence is required. Malcolm will not likely be before a criminal court again. Malcolm is worth more to society working and living in the community than he is as an example of the consequences of a singular intemperate act.

[140] In my view, but for the mandatory minimum sentence of four years, the twelve month sentence proposed by the defence appropriately honours the purposes and principles of sentencing in the Code save for denunciation and deterrence. While a twelve month sentence would punish Malcolm no more than his moral blameworthiness merits and would reflect a merciful disposition it does not constitute sufficient condemnation of the conduct.

[141] But for the mandatory minimum sentence, in the particular circumstances of this case, I would order a prison term of twenty months discounted for time spent in pre-trial custody, three years of probation and the ancillary orders. This reflects similar disposition for similar behaviour with an uptick to recognize a newer, firmer response to gun offences.

The Honourable Mr. Justice Rick Leroy

**Released:** September 19, 2018