Court File and Parties

COURT FILE NO.: 15432/20 DATE: 2022-04-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JEROME DERBY, Defendant

Counsel: Jinwon Kim, for the Crown Maija Martin and Stephanie Brown, for Mr. Derby

HEARD: February 24, 2022

Reasons on Sentencing

C. Boswell J.

[1] Mr. Derby was arrested on July 4, 2019 in relation to a shooting in downtown Whitby the night before. He was charged with twelve offences in all, including aggravated assault, dangerous operation of a conveyance, multiple firearms offences and possession of cocaine and fentanyl for the purpose of trafficking.

[2] Mr. Derby entered guilty pleas before me on June 4, 2021 to four counts as follows: Count 2: Discharge of a firearm with intent to endanger life; Count 4: Unauthorized possession of a loaded, prohibited firearm; Count 5: Occupying a motor vehicle knowing there is a prohibited firearm therein; and, Count 8: Possession of a firearm in breach of a s. 109 weapons prohibition order.

[3] Sentencing was adjourned to August 3, 2021 to permit defence counsel to obtain an enhanced pre-sentence report. The enhanced PSR had just commenced at August 3, 2021 and was expected to take three months to complete. The sentencing was accordingly adjourned to October 12, 2021 to be spoken to for the purpose of scheduling a date for sentencing submissions to be made.

[4] On October 12, 2021 the PSR remained outstanding. Moreover, defence counsel indicated an intention to subpoena records from the Central East Correctional Centre in relation to Mr. Derby’s time in remand at that facility. The sentencing was put over to October 27, 2021 and then November 1, 2021 to be spoken to.

[5] On November 1, 2021 the matter was put over to January 7, 2022. On that date, counsel confirmed that the enhanced PSR was now complete and the CECC records had been received. February 11, 2022 was scheduled for sentencing submissions. Unfortunately, there wasn’t sufficient time on the docket to accommodate those submissions on February 11, 2022 and the matter was adjourned to February 24, 2022 when submissions were ultimately received.

[6] The following reasons explain the sentence imposed today.

The Circumstances

The Offences

[7] On July 3, 2019 Justin Jones called 911 to report that someone driving a white Hyundai had shot a clip of bullets at his car. Identification officers would eventually locate eight bullet holes in his car. A number of projectiles were found inside the car.

[8] Mr. Jones had met an escort at a local Whitby motel. They had an argument over payment. As he drove away from the motel, he observed that he was being pursued by a white Hyundai. He was followed into the parking lot of the Whitby Mall where he was shot at.

[9] The police were able to identify Mr. Derby as the driver of the white Hyundai through CCTV footage from the motel. The vehicle was subsequently located in Owen Sound. In the trunk of the vehicle was a loaded, Sig Sauer 9 mm handgun with an oversized cartridge. The gun was test-fired and found to be a match, ballistically, to the projectiles found in Mr. Jones’ vehicle. DNA recovered from the gun was, for all practical purposes, a match to Mr. Derby’s DNA.

[10] At the time of the pleas, Mr. Derby accepted that he was the person who shot at Mr. Jones’ vehicle and that he did so with intent to endanger Mr. Jones’ life. He also accepted that at the time of the shooting he was subject to a lifetime weapons prohibition under s. 109 of the Criminal Code. It is conceded that he was not authorized to possess the handgun used at the time of the shooting.

The Offender

[11] Mr. Derby is a 31-year-old Black man. He was born in Toronto of Jamaican heritage. He grew up in poverty in the Regent Park area of Toronto.

[12] Defence counsel filed an enhanced PSR dated November 26, 2021 prepared by Jacquie Pemberton. Ms. Pemberton is a registered social worker, with a masters degree in social work. She works with the Sentencing and Parole Project, which is a non-profit organization that prepares enhanced pre-sentence reports for Black people marginalized by poverty and racial inequality.

[13] Mr. Derby is the second-oldest of four biological siblings born to his parents, Carrol Derby and Phillip Williams. He apparently has 15 other half-siblings on his father’s side. His father has not played a particularly meaningful role in his life.

[14] Carrol Derby was pregnant with Jerome Derby when she immigrated to Canada from Jamaica. After his birth she attempted, without success, to obtain a high school diploma.

[15] Mr. Derby recalls living in an unstable home environment and moving frequently as a young child. At about age 9 his family settled in the Regent Park neighbourhood of Toronto.

[16] He describes his family as poor. His mother was on social assistance throughout his entire upbringing. She struggled to budget the money she was provided and he and his siblings often went without sufficient food. At age 11 he began to work to help support his family.

[17] He describes his younger brother, Jermaine, as his best friend growing up. They were less than a year apart in age. Jermaine was shot to death in the elevator of their apartment building when he was 19. The crime has never been solved. Mr. Derby struggles with both the death of his brother and the unsolved status of the crime.

[18] He expresses love for and closeness with his mother. His older sister, Kaydian, was less than enthusiastic about the role their mother has played in Mr. Derby’s life. When she spoke to Ms. Pemberton, she described their mother as “manipulative, a partier and someone who wanted to be taken cared of.” She said she failed to provide structure, discipline, encouragement or mentorship to Mr. Derby. Instead, he became the parent in that relationship.

[19] Mr. Derby does not take issue with his sister’s assessment. He reported that he essentially raised himself, though he noted that in his neighbourhood, parentification of children was normal.

[20] Mr. Derby had a number of interactions with the child welfare system. Significantly, when he was 7 years old his mother travelled to Jamaica. She failed to make adequate arrangements for the care of her children in her absence and they were apprehended by the CAS and placed into foster care, where they remained for more than 6 months. A month after they were returned to their mother’s care, they were apprehended and went into foster care again. Once again, the concern was a lack of parental supervision. This time they remained in care for about a year.

[21] Mr. Derby had a poor experience in foster care. He described foster care as feeling like jail and he lamented the experience of being moved from place to place and school to school.

[22] Regent Park is recognized as being one of the lower-income neighbourhoods of Toronto. It has a reputation for substandard housing, crime (including gun crime, drugs and prostitution), and social problems. Mr. Derby describes it as beautiful and friendly during the day and dangerous at night. He became somewhat immune to the violent nature of the neighbourhood. He regularly experienced hearing gun shots and seeing dead bodies. He described a “law of the jungle” quality to the neighbourhood and he developed a “survival of the fittest” mentality to live and cope there.

[23] As a young, Black male living in Regent Park he was, he says, targeted by the police. He had regular interactions with them, which he described generally as “bad”. He experienced carding and aggressive conduct by police. He developed a lack of trust in and fear of the police. He has experienced outwardly racist conduct by police officers in Peel Region who have used the “n-word” and “coon” to describe him.

[24] Despite his disadvantages, Mr. Derby was a bright young student. He achieved consistently high grades in his early school years. By middle-school, however, he was experiencing a good deal of conflict at school. He received 14 suspensions for fighting, bullying, oppositional behaviour and drug possession. By grade 9 his attendance declined. It appears he received only three grade 9 credits. During a period of incarceration later in his life he was able to complete his GED.

[25] There can be no doubt that Mr. Derby’s experience with poverty and a lack of stability in his life impacted his ability to perform well in school. He had issues with attendance, with a lack of proper clothing and food. He occasionally fell asleep in class. He had a particular connection with one teacher at Nelson Mandela Park Public School, Mr. Morgan, who described Mr. Derby as smart and respectful, but not without challenges. Given his difficult living circumstances, Mr. Derby’s chance for success was described by Mr. Morgan as “slim”.

[26] Mr. Derby has a limited history of employment, since most of his adult life has been spent in custody. He worked as a teen at the Boys and Girls Club in Regent Park. In 2008 he got work through a temp agency for a couple of months, but not long thereafter he was arrested and taken into custody for robbery.

[27] Mr. Derby has a troubling criminal record. It begins with a conviction for robbery for which Mr. Derby was sentenced on May 6, 2009 to one day in jail on top of 15 months pre-sentence custody, together with 18 months probation. A year later, on May 4, 2010, he was sentenced on convictions for break and enter, possession of property obtained by crime, flight from police and breach of probation. He was sentenced to time served, which was eight months, plus 18 months probation.

[28] Most significantly, Mr. Derby was convicted on May 23, 2013 of manslaughter. He had attended at the hotel room of a prostitute. The sex worker thought he may be the person responsible for a number of recent robberies of prostitutes at gunpoint. She called her pimp, who attended at the scene. A fight ensued, during which Mr. Derby shot and killed the pimp.

[29] The trial judge found as a fact that Mr. Derby had not brought the gun to the scene. Instead, the pimp had brought it, with the intent of ambushing Mr. Derby. During an ensuing struggle, Mr. Derby wrested control of the gun from the pimp and shot him dead. The trial judge found that the Crown had not established that Mr. Derby had the intent to kill. He sentenced Mr. Derby on August 12, 2013 to eight years in prison, less credit for pre-sentence custody. A lifetime weapons prohibition was imposed as well.

[30] The manslaughter conviction is obviously the most significant of Mr. Derby’s criminal antecedents. It is to be noted that the offence took place only two weeks after the funeral of his brother, Jermaine. His response in the moment of being ambushed by an armed attacker was very much informed by the recent loss of his brother to gun violence.

[31] Two months after his sentencing on the manslaughter conviction, he was sentenced to 12 months consecutive and 4 months consecutive on convictions for dangerous driving and flight from police.

[32] In terms of the index offences, Mr. Derby described to Ms. Pemberton that he pursued Mr. Jones with the intent of speaking with him. He says Mr. Jones “disrespected” him and so he shot at his car to scare him. He described being angry and acting impulsively. He did not think about the consequences of his actions.

[33] While expressing a desire to disassociate himself from firearms, he remains fearful of dying at a young age due to the gun-killing of his brother. He said that being without a firearm in Toronto makes him feel unsafe. His sole purpose in obtaining a firearm was protection. Though he knew he had a lifetime weapons prohibition, someone tried to shoot at him after his release from prison and that compelled him to obtain a firearm.

[34] A number of collateral sources provided character references for Mr. Derby. They appear to share the view that Mr. Derby is a product of his environment. Mr. Morgan offered some particularly poignant observations. He said elements like “disrespect” and building a “reputation” are “scripts of the hood”. They force Mr. Derby to be someone he might not otherwise be. He is smart enough to know what he needs to do to be on the right path. He needs to learn the language of “trauma, love and foregiveness.” He is confident that Mr. Derby has many opportunities to do more with his life.

[35] Since his arrest on the index charges, Mr. Derby has been detained at the CECC. He went into custody on July 4, 2019 and remains in custody at the CECC to today’s date. In total, he has, by my calculation, 1014 real days of pre-sentence custody to today’s date.

[36] Defence counsel subpoenaed the records from CECC detailing lockdowns during Mr. Derby’s time in remand there. Inmates are generally housed two to a cell. A cell is 7 feet wide and 15 feet long. It holds two bunk style beds. On a normal day, inmates are permitted out of their cells for 10 hours. They are able to have some time outside in the yard and have access to phones, showers and visits.

[37] When on lockdown, inmates are kept in their cells. There is no access to the dayroom or the yard and access to showers, the phone and visits is limited if not entirely eliminated.

[38] The CECC’s records disclose that between July 5, 2019 and February 11, 2022 Mr. Derby’s unit was subject to 62 days of partial lockdowns (defined as six hour or less) and 306 days of full lockdowns.

[39] Most of the lockdowns were due to chronic staff shortages. In 2021, however, there were some extended periods of time where lockdowns were related to medical isolations or COVID outbreak management.

[40] Mr. Derby filed an affidavit in which he set out the impact of lockdowns on his experience at CECC. He noted that during May and June 2021 there was a facility-wide COVID outbreak that led to him being on lockdown for at least 34 consecutive days. He had no access to a shower for 17 straight days during that stretch. A second facility-wide outbreak was declared at CECC on January 5, 2022, which resulted in Mr. Derby being locked down for 17 consecutive days.

[41] Mr. Derby deposed that during lockdowns he has no access to the phone. He is unable to use the yard, or to otherwise leave his cell for any recreation or exercise. The extensive lockdowns have caused him stress and have negatively impacted his mental health.

[42] His physical health has also been impacted by the COVID outbreaks. He tested positive for COVID on May 17, 2021 and became ill. He tested positive again, during the second COVID outbreak in January 2022. While he experienced only mild symptoms with the second infection, his sense of taste and smell have continued to be impacted.

The Impact of the Offences

[43] The index offences have, of course, had a significant impact on the victim, Mr. Jones, as well as the broader community.

[44] Mr. Jones was invited to file a Victim Impact Statement, but he did not do so. It is not difficult, however, to imagine the terror of being pursued and shot at repeatedly by someone intent on endangering your life.

[45] At the same time, the impact that a shooting like this one has on the community is profound and distressing. Discharging a firearm in a public setting like a mall parking lot is completely unacceptable and intolerable. It demonstrates a wanton disregard for the lives and safety of other members of the community. We are all sadly familiar with the unintended and tragic consequences that conduct like this can bring about. These types of incidents are shocking. They make people afraid in their own communities.

The Law

The Legal Parameters

[46] Pursuant to s. 244(2) of the Criminal Code, the maximum penalty on conviction of discharging a firearm with intent to endanger life, where, as here, a prohibited firearm was used, is imprisonment for fourteen years. The minimum penalty, in the case of a first offence, is five years.

[47] Pursuant to s. 95(2) of the Criminal Code, the maximum penalty on conviction of unauthorized possession of a loaded, prohibited firearm is imprisonment for ten years. Section 95(2)(i) continues to provide for a minimum sentence of three years for a first offence under this section. That section was, however, struck down by the Supreme Court as unconstitutional in R. v. Nur, 2015 SCC 15.

[48] Pursuant to s. 94(2) the maximum penalty on conviction of knowingly possessing an unauthorized, prohibited firearm in a motor vehicle is imprisonment for ten years.

[49] Pursuant to s. 117.01(3), the maximum penalty on conviction of a breach of a s. 109 order is imprisonment for ten years.

The Principles and Purposes of Sentencing

[50] The objectives of sentencing are codified in s. 718 of the Criminal Code and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[51] The importance of these individual objectives, and how they interact, varies from case to case. There is little debate that the objectives of denunciation and deterrence are the most prominent given the nature of the offences here.

[52] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.

[53] Proportionality engages two concepts: censure and restraint. As Lebel J. explained in R. v. Ipeelee, 2012 SCC 13, at para. 37: Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system…Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

[54] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[55] Having said that, proportionality, as a guiding sentencing principle, must be considered through an individualized lens. As former Chief Justice McLachlin described it in R. v. Nur, as above, at para. 43, …[I]mposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime…

[56] It is necessary that the court carefully consider the particular circumstances of the offence and of the offender and take account of any aggravating and mitigating circumstances.

The Parties’ Positions

[57] The Crown seeks a global sentence of ten years, broken down as nine years for discharging the firearm with intent, one year consecutive for the breach of the s. 109 prohibition and five years concurrent on the other two counts.

[58] The Crown also seeks, by way of ancillary orders: a further s. 109 weapons prohibition for life, a DNA order on all counts, and an order under s. 743.21 of the Criminal Code that Mr. Derby be restrained, while in custody, from communicating either directly or indirectly with Justin Jones.

[59] Mr. Kim submits that the offences are extremely serious and that Mr. Derby’s moral blameworthiness is extraordinarily high. The offences, he contends, call for significant denunciation and deterrence. Mr. Derby pursued Mr. Jones and shot at least eight times at him, knowing that what he was doing could kill Mr. Jones. The shooting took place in a public setting and lasted about a minute. It was not a sudden, reactionary shooting. It was the end result of the pursuit. Mr. Derby had plenty of time to think it through. And the result of his thought process was the discharge of eight bullets in a public parking lot. All of this was at a time when Mr. Derby knew he was subject to a lifetime weapons prohibition order.

[60] Mr. Kim further points out that on top of the very aggravating circumstances of the manner in which the offences were committed, Mr. Derby has a significant criminal record which includes a conviction for manslaughter which resulted in an eight year prison sentence.

[61] The Crown’s submission of a ten-year global sentence takes into account, Mr. Kim says, any mitigating factors such as a Duncan/Marshall credit for the harsh conditions of pre-sentence custody and the mitigating impact of any systemic racism experienced by Mr. Derby. It does not include a Summers credit for the actual time Mr. Derby has served in pre-sentence custody.

[62] Mr. Derby’s counsel acknowledge that the offences are serious. But in their view, a sentence of six to seven years on the discharge with intent count is sufficient to achieve the pressing objectives of denunciation and deterrence. This is particularly so when the mitigating effect of the anti-Black racism experienced by Mr. Derby over his lifetime is accounted for. Moreover, they submit that the range advocated for by the Crown is applicable to cases where someone has been seriously injured, but is not generally applicable where there has been no personal injury.

[63] Defence counsel accept that there should be a consecutive sentence imposed for the s. 109 breach, but urge the court to consider imposing a six-month sentence rather than the twelve month consecutive sentence sought by the Crown.

[64] Mr. Derby agrees with the five-year concurrent sentences sought by the Crown on counts four and five. He does not take issue with the ancillary orders sought by the Crown.

Discussion

[65] Chief Justice Wagner observed in R. v. Lacasse, 2015 SCC 64, that sentencing is one of the most delicate stages of the criminal justice process. This case provides a vivid example of how complex and delicate the sentencing process can be.

[66] Mr. Derby committed an extremely serious offence. He repeatedly shot at a vehicle occupied by another man in a public area of a local Durham community. He risked the life of the man he shot at, others in the general vicinity and, of course, put at risk the lives and safety of police officers who had to respond to the shooting. There is simply no way to overstate how serious the offences were.

[67] The offences were committed at a time when Mr. Derby ought not to have had possession of a gun. He was subject to a lifetime weapons prohibition. This was not the first time Mr. Derby has fired a weapon in anger at someone. The last time he did so he killed a man. He spent years in prison for doing so. Yet, he is here before the court again, being sentenced for firing a gun at another human being.

[68] At the same time, there are mitigating circumstances here that must be carefully evaluated and balanced against the seriously aggravating circumstances of the offences. In particular, Mr. Derby is a relatively young Black man who has been impacted by the insidious effects of anti-Black racism throughout his life. His lived experience does tend to inform the arc of his life and the choices he has made, including the choice to engage in the conduct that landed him before the court today.

[69] Mr. Derby has, moreover, been in a remand facility for over a thousand days awaiting disposition. The particular facility he has been housed in has a demonstrated record of indifference to the emotional and physical well-being of those in its custody. It is a facility that has been complacent about the impact that chronic staff shortages have had, for years, on its inmates. Mr. Derby has suffered significantly as a result of the harsh conditions he has endured in remand and his suffering must be taken account of as a mitigating circumstance.

[70] The principal driver of the appropriate sentence to be imposed in this case is the offence of discharging a firearm with intent to endanger life. It must be immediately observed that this offence falls near the upper end of the gravity spectrum. The jurisprudence recognizes as much.

[71] R. v. Bellisimo, 2009 ONCA 49 is appellate authority that offers guidance on the appropriate range of sentence to be imposed. Mr. Bellissimo entered a restaurant in downtown Toronto and was bothering a female employee. He was asked to leave. He left, though not without some further ado. Twenty minutes later he returned, armed with a handgun. He fired three or four shots inside the restaurant directed at the person who had asked him to leave. He chased the victim, continuing to fire his gun. The victim was struck in the lower back. Another of the shots he fired caused a minor injury to a second victim and another narrowly missed killing a third victim. The trial judge imposed an effective sentence of 8 1/2 years. The Court of Appeal found the sentence imposed to be inadequate. They noted that the range of sentence for serious gun-related offences is between 7 and 11 years. They imposed a sentence of ten years.

[72] Mr. Kim referred the court to a number of further decisions in an effort to support his assertion that a reasonable starting point for consideration is 12 years. Those decisions include R. v. Campbell, 2021 ONSC 4193; R. v. Jefferson, 2014 ONCA 434; R. v. Osbourne, [1994] O.J. No. 2633; R. v. Sauve, 2019 ONSC 960; R. v. Weedon, 2019 ONSC 73; and R. v. Claros, 2019 ONCA 626.

[73] It is unnecessary to refer to these authorities in detail. Focused highlights will suffice.

[74] Nehemiah Campbell was standing on a street corner in the wee hours of the morning, not far from a nightclub he had been at. Someone in a passing car shot in his direction, wounding him in the arm. He began to run. As the shooter’s vehicle accelerated past him, he fired some 13 shots at it from a 9 mm handgun he happened to have on his person, despite the fact that he was subject to a recognizance of bail that prohibited him from possessing firearms. He was charged with reckless discharge of a firearm, an arguably less serious offence than discharge with intent to endanger. A sentence of 8 years was imposed (7 for the weapons offence and 1 year consecutive for the breach).

[75] James Jefferson stepped in front of a car in which a former friend and fellow drug dealer was a passenger. He shot the man through the car window, hitting him in the arm. He was convicted after a jury trial of discharging a firearm, possessing a firearm while prohibited and four breaches of probation. He was sentenced to 10 years, less credit for pre-sentence custody. The Court of Appeal upheld the sentence on appeal, noting that it was inside the 7 to 11 year range they had set in Bellisimo.

[76] Jaden Sauve and another male attended at the rear of a townhouse complex in Toronto. They were targeting a rapper known as STK Rax, who was known to frequent the complex. They shot 13 rounds through the living room of a residence. Their target was not present, but a ten year old child was shot through the shoulder. Mr. Sauve was found guilty, after a trial, of discharging a firearm, aggravated assault, use of a firearm while committing an indictable offence, occupying a motor vehicle knowing that a firearm was present in it, unauthorized possession of a loaded firearm and other offences. He was sentenced to 12 ½ years, less credit for pre-sentence custody. Of that sentence, 11 years was imposed for the discharge firearm offence.

[77] Of note is that Mr. Sauve was 20 years old at the time of the offences. He had spent many years in foster care due to the substance abuse problems of his parents. At age 13 his brother was shot and killed in his presence. He was not able to complete high school and had never been employed.

[78] Paul Weedon went to see a rap contest in Toronto in which his brother was competing. An altercation erupted outside of the club. Mr. Weedon ran to his car and got a gun. He fired the weapon towards the group he had been fighting with. He missed that group but struck an Uber driver who was parked nearby waiting for a fare. The driver was wounded in the shoulder. Mr. Weedon was found guilty, after a trial, of aggravated assault, possession of a loaded prohibited weapon and discharge with intent. The trial judge observed that the appropriate range of sentence was that described in Bellisimo and imposed a global sentence of 10 years, 9 ½ of which were attributable to the discharge with intent.

[79] Mr. Derby’s counsel argue that the Bellisimo range is applicable where a firearm is discharged with intent and someone is actually injured. In support of their position, counsel pointed to the comments of Hackland, J. in R. v. Campbell, where he said, at paras. 11 and 12: 11. Recently, in R. v. Dhaliwal, 2019 ONCA 398, the Court of Appeal further discussed and limited the application of the Bellissimo range for serious firearms offences. The offender in Dhaliwal intentionally fired a single bullet into the ceiling of a building, where it lodged without striking anyone. The Court of Appeal held that the sentencing judge erred by imposing a sentence in the Bellissimo range of 7 to 11 years and reduced the sentence on the firearms offences in that case to 6 years imprisonment. 12 An important distinction between the decisions applying the upper end of the Bellissimo range of sanctions and the present case is that Mr. Campbell did not injure anyone from the use of his firearm and indeed was wounded himself…

[80] The Court of Appeal’s reasons in Dhaliwal are brief. They note that the Crown conceded that the facts of the case were not as serious as those that establish a 7 to 11 year range for “serious gun related offences”. Mr. Dhaliwal had fired a single bullet into a hallway ceiling between, but not in, stores and apartments in a small strip mall building. The trial judge had imposed a 7 year sentence, at the bottom end of the Bellissimo range. The Court of Appeal reduced that sentence to 6 years.

[81] I do not read Dhaliwal as support for the proposition that the Bellissimo range only applies where someone has been injured. Obviously, the fact that a person is injured by gun fire is a significant aggravating feature. But gun-related offences may be very serious even when no one is actually injured.

[82] The defence also rely on Justice Schreck’s decision in R. v. Ferdinand, 2018 ONSC 7476, as support for the assertion that the circumstances of the case at bar do not fall within the Bellisimo range.

[83] Mr. Ferdinand was with a number of others in an apartment. He was intoxicated. For reasons best known to him, he brandished a loaded handgun. It went off accidentally, seriously wounding one of his friends. He was convicted of aggravated assault following a trial. The Crown submitted that the appropriate sentence fell in the range of 8 to 10 years, citing Bellissimo. The defence urged the court to impose a sentence of 3-4 years.

[84] Schreck J. observed that the Court of Appeal’s decision in Bellissimo was quite brief and did not explore all of the circumstances of the offence or the offender. The Court held that the 7-11 year range it identified applied to “these kinds of serious gun related offences”. Schreck J. determined that the case before him was not one of those serious gun related offences to which the Bellissimo range applied because Mr. Ferdinand did not discharge his firearm intentionally.

[85] In a subsequent case, R. v. Jama, 2021 ONSC 4871, Schreck J. again opined on the cases to which Bellissimo properly applies. He expressed the view, at para. 44, that “the Bellissimo range may be properly applied only to cases of intentional shootings where someone is injured or where there was an attempt to injure someone”.

[86] The defence cited further cases where sentences below the Bellissimo range have been imposed in arguably similar circumstances to the case at bar. These cases include R. v Haque, 2019 ONCJ 466; R. v. Reis, 2017 ONSC 1961, and R. v. Johnston, 2020 ONCJ 272, affirmed 2021 ONCA 331. Again, a brief review of the highlights of these cases will suffice.

[87] Naiemul Haque found himself in a gun battle with two other men in downtown Toronto. He discharged his handgun, intending to endanger the lives of the other two. They did the same. His shot(s) failed to find purchase. One of theirs did, striking Mr. Haque in the arm. The trial judge imposed a sentence of 5 ½ years, following a guilty plea. She held that she was not bound to impose a sentence in the Bellissimo range because Mr. Haque had not injured someone – a fact she found to be distinguishing from the type of case the Court of Appeal was concerned about in Bellissimo. She considered Mr. Haque, a young man with no prior involvement in the criminal justice system, to fall into the “best offender” category.

[88] Tryden Reis and a group of his friends were socializing in front of an apartment building in Toronto. They were approached by two males, one of whom brandished a handgun. As the two males left, Mr. Reis gave chase, tackling the one with the handgun. Mr. Reis somehow got hold of the gun and began shooting. He shot one of the males in the abdomen. The other managed to run off without injury. Following a trial, Mr. Reis was found guilty of aggravated assault, discharging a firearm with intent to wound, and using a firearm while committing an indictable offence. The trial judge found that this case fell within the Bellissimo range. Nevertheless, having considered the mitigating circumstances of the case, he imposed a 6 year sentence, less time served.

[89] Kodie Johnston was a young man with addiction and mental health problems. He resided in an apartment with an older male. One day they argued about music. The argument got heated and Mr. Johnston grabbed a .38 special handgun that happened to be sitting on a nearby dog crate. He shot his roommate in the chest. He was convicted of eight offences, including aggravated assault, pointing a firearm and possession of a prohibited weapon while subject to a weapons prohibition order. The Crown sought a 7 year sentence, at the bottom of the range in Bellissimo. The court agreed, but reduced the sentence to 6 ½ years in consideration of COVID-19 pandemic issues. The sentence was subsequently upheld by the Court of Appeal.

[90] Having reviewed the caselaw submitted to me by counsel, I am confident that this case falls within the Bellissimo range. It is undoubtedly the kind of serious gun related offence to which the Court of Appeal intended the range to apply.

[91] Others may see it differently, but in my view, nothing in the Court of Appeal’s reasoning in Bellissimo limits the range identified in that case to instances where someone is injured in a shooting. The Court of Appeal has had ample opportunity in the years since Bellissimo was decided to impose that limitation, or otherwise clarify that the range of 7-11 years applies only to cases where someone has been injured by gunfire. They have not done so. In my view, it is a refinement that is both unnecessary and unwarranted.

[92] It is unnecessary for me to assess whether I agree with Schreck J. that Bellissimo only applies where the shooter injures someone or intends to injure someone. In this instance, it is clear that Mr. Derby intended to injure someone.

[93] Sentencing is a very individualized exercise. Whenever there is an established range, it is inevitable that cases will be found throughout that range, as well as above and below it, depending on the particular facts of the case. Haque, for instance, is a case that falls below the Bellissimo range on facts that I would have thought would have put it squarely within that range. In my view, it is an outlier.

[94] It is particularly important to be mindful of the aggravating and mitigating circumstances of each case. Here, Mr. Derby intentionally discharged his firearm, at least 8 times, in a public setting and with intent to endanger Mr. Jones’ life. The fact that he did not injure Mr. Jones or an innocent bystander is purely fortuitous and does little, if anything, to reduce his moral culpability.

[95] The fact that no one was actually injured places this case perhaps a little under the upper end of the Bellissimo range. But in my view, the circumstances here are so aggravating that they certainly place the case near the upper end of the range.

[96] In terms of aggravating circumstances, I make the following observations: (a) Mr. Derby was subject to a weapons prohibition for life. Yet he took whatever time and effort was necessary to obtain a weapon and ammunition for himself, through nefarious sources; (b) Mr. Derby did not act entirely impulsively. He had time, during the pursuit of Mr. Jones, to think things through; (c) Mr. Derby has previously killed a man with a firearm. He is well aware of the damage that can be done when firearms are discharged, even when an intent to kill is absent; (d) Mr. Derby has admitted that he discharged his gun with the intent to endanger Mr. Jones’ life; and, (e) Mr. Derby discharged his gun 8 times over the course of about a minute. And he did it in a public setting. It is axiomatic that he had no control over where the projectiles went after they left his gun. They could have ended up in entirely unanticipated locations. He was nearby a McDonald’s restaurant when he fired at Mr. Jones.

[97] In my view, an appropriate starting point, subject to consideration of mitigating factors, is 10 years. Defence counsel pointed out that I recently imposed an 8-year sentence for a similar offence on an offender who shot another man in the leg in the courtyard of an apartment building complex. See R. v. Charles, 2021 ONSC 5097. While that is accurate, the Crown in that case – also a guilty plea – only sought a sentence of 8 years.

[98] By way of mitigation, I note the obvious benefit of the plea. Mr. Derby has taken responsibility for his actions. He has saved significant trial time and the resources that would be required to conduct and complete the trial.

[99] Defence counsel argue that Mr. Derby’s experience with anti-Black racism throughout his life and the impact of that racism on him are compelling mitigating circumstances.

[100] The Court of Appeal for Ontario recently considered, in R. v. Morris, 2021 ONCA 680, how sentencing courts should take evidence of anti-Black racism into account on sentencing. They provided a helpful summary of their conclusions at para. 13 of their decision. These conclusions include, amongst others: (a) The task of the sentencing judge is, as always, to impose a just sentence tailored to the specific offender and the specific offence; (b) The gravity of an offence is determined by its normative wrongfulness and the harm posed or caused by that conduct in the circumstances in which the conduct occurred. The offender’s life experiences with anti-Black racism do not impact on the gravity of the offence; and, (c) Social context evidence relating to the offender’s life experiences may be used where relevant to mitigate the offender’s degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing codified in the Criminal Code.

[101] The Court of Appeal observed that sentencing judges have always taken into account an offender’s background and life experiences when assessing the offender’s moral responsibility for an offence. Experience with anti-Black racism and the impact of that racism on the offender is unquestionably part of the offender’s background and circumstances.

[102] There must, of course, be “some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” Otherwise, mitigation “becomes a discount based on the offender's colour.” Such a discount is not recognized by our law. See Morris, para. 97. That said, to have mitigating effect, the systemic racism experienced by the offender need not be demonstrated to be causally connected to the offence. There need only be some linkage between the offender’s experience and the offences that brought him before the court. See R. v. Ansah, 2021 ONSC 6339 at paras. 41-42.

[103] Regardless of the mitigating impact of an offender’s lived experience with anti-Black racism, social context evidence may be relevant to the court’s assessment and appropriate blending of the relevant sentencing objectives. Understanding the offender’s background better enables the sentencing judge to craft a sentence that best reflects the “needs and potential of the offender”, while paying due respect to the seriousness of the offence. Morris, para, 103.

[104] In an effort to assist the court in understanding Mr. Derby’s lived experience, including his experience with anti-Black racism, defence counsel filed, in addition to the enhanced PSR, a report entitled, "Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario", authored by Akwasi Owusu-Bempah, Camisha Sibblis and Dr. Carl James. This is a slightly case-tailored version of the report filed by defence counsel in Morris. It was described by the Court of Appeal at paras. 39 and 40 of Morris as follows: 39…The report provides an historical and social account of the Black experience in Canada. It draws a connection between the long history in Canada of overtly racist attitudes and social practices and present day institutional and systemic discrimination against Black people. The report explains how systemic discrimination in many social institutions marginalizes Black people in communities marked by poverty, diminished economic and employment opportunities, and a strong and aggressive police presence. These factors combine to leave many in the Black community with the reasonable perception that Canadian society, and in particular the criminal justice system, is racist and unfair.

40 The authors conclude: It is our opinion that the social circumstances of Black Canadians in general, and of Black male Torontonians in particular, should be viewed as criminogenic. Elevated levels of offending in the types of crimes that typically come to the attention of the police (street crimes as opposed to white-collar and corporate crimes), combined with discrimination in the justice system itself have resulted in the gross over-representation of Black Canadians in our provincial and federal correctional systems. Whereas no one individual should be completely absolved of their own responsibility when it comes to offending behaviour, the social realities that have produced or contributed to such behaviour can be acknowledged, and serve to guide judicial decision making.

[105] The Court of Appeal recommended the report as one that participants in the criminal justice system should read and re-read.

[106] Ms. Pemberton took the time to connect Mr. Derby’s lived experience, including his experiences with anti-Black racism, to his moral blameworthiness for the index offences.

[107] She identified poverty as the central concern. Mr. Derby bore the responsibility, from a young age, of caring for his family. Research shows, she said, that the highest rates of food insecurity in Canada are experienced by Black families.

[108] Moreover, child welfare research demonstrates that Black youths represent a disproportionate number of children placed into foster care and a disproportionate number of youths entering the criminal justice system, something she referred to as the “child-welfare-to-prison pipeline”.

[109] Poverty, apprehension by the CAS, and the experience of violence in Regent Park were all traumatizing experiences for Mr. Derby. His association with Regent Park led to his being perceived by some as a thug or a drug dealer. He had poor interactions with police and came to fear them and their intentions and to view their motivations as rooted in racism.

[110] The death of his brother to gun violence in Regent Park entirely changed his life and shifted his mindset. He has become involved in firearms due to a perception that they are needed to keep himself and those he cares about safe.

[111] I readily accept that Mr. Derby’s lived experience, particularly his experience with poverty and with anti-Black racism, inform his involvement with the criminal justice system. However, I consider it of only modest mitigating force.

[112] In Morris, the offender was convicted of possession of a loaded, prohibited handgun and carrying a concealed weapon. There was evidence that Mr. Morris’ experience with anti-Black racism in his community played a role in the development of his strong fear for his personal safety in the community. The Court of Appeal recognized that his genuine fearfulness offered a mitigating explanation for his possession of a loaded, concealed handgun. Nevertheless, the mitigating impact was limited. Mr. Morris, the Court noted, “still chose to arm himself in public with a concealed, loaded, deadly weapon.” His reasons for doing so did not detract from the seriousness of the offence. He still “put members of the community, and police officers engaged in the lawful execution of their duties, at risk.” See Morris, para. 101.

[113] Similar sentiments may be expressed with respect to Mr. Derby. He has a criminal record for violent offences, including manslaughter. He has already unlawfully shot a man to death. He was on a lifetime weapons prohibition, something that would have been clear to him as he went about sourcing out an illicit weapon and ammunition.

[114] He made a conscious choice to breach the weapons prohibition. He made another conscious choice to chase after a man he perceived to have wronged his girlfriend. And he made a further conscious choice, with sufficient time for deliberation, to pull out a gun in a public location and begin firing, with the intent to endanger another person’s life.

[115] It is impossible not to be sympathetic to Mr. Derby’s experiences as a child and young man: growing up in poverty; not having enough to eat; being taken into foster care because his mother failed to properly supervise him; having to get a job at age 11; losing his brother to gun violence as a young man; having to adapt to life in a violent and dangerous neighbourhood and living by a code of “survival of the fittest”. Mr. Derby is a bright young man. He showed promise as a young student. His life could have turned out differently if he had been given more of a chance; if he had had better support. Perhaps it still can turn out differently. He is still just 31 years old.

[116] Today he faces sentencing for extremely grave offences. His moral blameworthiness remains high, even in the context of his lived experience, including his experience with anti-Black racism. That experience certainly informs the arc of his life and the choices that he has made. Nevertheless, the choices that bring him before the court today were his choices. And they were fully-informed choices with grave consequences. I consider those circumstances to be only modestly mitigating in all the circumstances.

[117] Considering the guilty plea, Mr. Derby’s experience with systemic racism and the particularly harsh conditions he has experienced in pre-sentence custody, I would reduce his sentence on the discharge firearm offence, being count two, from 10 years to 8 ½ years.

[118] I would impose five-year concurrent sentences on counts 4 and 5.

[119] Finally, I would impose a one-year sentence on count 8, for the s. 109 breach. It is appropriate that this sentence be made consecutive to the other sentences. The s. 109 breach was very serious, particularly in light of Mr. Derby’s criminal antecedents. A significant deterrent sentence is justified and, in my view, necessary, to maintain public confidence in the justice system. See R. v. Hussain, 2018 ONCA 147 at para. 20.

[120] The gross, global sentence imposed is therefore 9 ½ years. Mr. Derby is entitled to a Summers credit for time served. See R. v. Summers, 2014 SCC 26. Mr. Derby went into custody on July 4, 2019. By my calculation he has 1014 days of actual pre-sentence custody to today’s date. He is entitled to a credit of 1521 days, or roughly 51 months, for that pre-sentence custody. The net sentence to be served is, accordingly, 63 months, or 5 years and 3 months.

[121] Mr. Derby’s counsel seek a further discount for the potential of the pandemic to increase the harshness of the time left to be served on the sentence imposed. Though no one can crystal-ball where the pandemic is headed, in the present circumstances I am satisfied that the worst is behind us and that we have moved, or are moving, to an endemic phase of the disease. Any future impact of the pandemic on Mr. Derby is appropriately left to the parole board. See R. v. Subia, 2022 ONSC 1963 at para. 58.

[122] In addition to the custodial sentence imposed, I impose the following ancillary orders, which were not contested: (a) A DNA order on count 2; (b) A s. 109 weapons prohibition for life, on count 2; and, (c) An order, under s. 743.21 that, during the custodial portion of his sentence, he not communicate, directly or indirectly, with Justin Jones.

C. Boswell J. Released: April 12, 2022