Court File and Parties

Court File No.: CR-20-0509 Date: 2022 04 21

Ontario Superior Court of Justice

B E T W E E N:

Her Majesty the Queen Tina Kim for the Crown

- and –

Andre Martin Melody Izadi for the defendant

Heard: February 10, 2022

Reasons for Sentence

D.E Harris J.

[1] Andre Martin stands convicted of attempted murder while using a firearm, and possession of the firearm without legal authorization. These reasons explain my view on the appropriate and fit sentence proportionate to the offence and the offender.

[2] The Crown requests a total sentence of 18 years minus credit for pre-sentence custody. The defence position is 8-10 years but with other factors, 6 years minus pre-trial custody. On consent, a DNA databank order and a lifetime firearms prohibition will go. There will also be an order under Section 743.21(1) of the Code prohibiting contact with Kerith Lewis and his immediate family during the custodial part of the sentence.

[3] These sentencing reasons should be read in conjunction with the reasons for conviction: 2021 ONSC 3827. Mr. Martin was a member of the West End Kings, a chapter of the Ruff Ryders motorcycle club. On June 4, 2017, at a Ruff Ryders social dubbed the “Lock-Off” in a plaza in Brampton, a fight broke out between Mr. Martin and his erstwhile friend, Kerith Lewis. Lewis landed one or two punches to Mr. Martin’s face. Mr. Martin then shot a pistol once or twice. One bullet hit Lewis in the upper abdomen. Tragically, he is now a paraplegic for life.

[4] The two had been good friends until Mr. Martin was expelled from the West End Kings. When Mr. Martin began to denigrate the club and its members on social media, Lewis leapt to their defence. A war of words began. Mr. Martin went to the Lock-Off intending to have it out with Lewis. Mr. Martin always carried a gun because a friend of his had been killed a while before. When Lewis punched him, Mr. Martin lost his cool, pulled out his gun and shot Lewis. He then left in his Mustang which he sold several days later.

[5] Mr. Martin was not arrested until more than two years later, in August of 2019. When a search warrant was executed on his residence, a gun was found, a different gun than used in the shooting of Lewis. The original gun was never recovered. Mr. Martin was found guilty of possession of the gun which had been seized and on January 14, 2021 received the equivalent, taking into account pre-trial custody, of a three-year sentence from Justice Duncan. The warrant expiry date of that sentence was June 24, 2021.

The Aggravating Factors

[6] This is yet another case portraying in tragic detail the disease that is illegal firearms. It is a subject that I have been obligated to write on before: see e.g. R v. Chizanga and Meredith, 2020 ONSC 4647 (Ont. S.C.) at paras. 5-39. The Court of Appeal stated in R. v. Danvers (2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 78, “our courts have to address the principles of denunciation and deterrence for gun related crimes in the strongest possible terms”, particularly in the Toronto area. See also R. v. Brown, 2009 ONCA 563, at para. 33. As the affidavit filed on sentence demonstrates, the gun problem continues to get worse.

[7] The tragic consequence here illustrates a common theme. Ms. Kim accepts that Mr. Martin did not go to the Lock-Off event to shoot Mr. Lewis. When he got there, Mr. Martin was provoked. Lewis punched Mr. Martin. Mr. Martin’s anger boiled over and he spontaneously shot his gun with intent to kill Lewis. If Mr. Martin had not had the gun, the two men would have become embroiled in a fight with their hands. There would likely have been no lasting injuries and Mr. Lewis would not be a paraplegic today.

[8] A gun allows maximum harm in the discharge of rage. Releasing bottled up anger with the lethal force of a firearm may be satisfying in the moment. Anger is not in scarce supply. Allowing a person to express their anger by shooting a gun to affect maximum damage is madness. Gun control is an imperative for any civilized society.

[9] There are obvious aggravating factors here: the use of a gun; the intention to kill; shooting at such close range that the gunshot residue visibly burned Lewis’ jacket; the fact Lewis was unarmed; and of key importance, the permanent paralysis suffered by Lewis, profoundly diminishing his life. Furthermore, Mr. Martin carried around the gun everywhere he went. That it was supposedly for self-defence purposes is belied by the facts of this offence where it was used offensively, not defensively.

[10] There was evidence that Mr. Martin fired twice, a warning shot and then the shot into Mr. Lewis’ body. This was Mr. Martin and Mr. Lewis’ evidence. Mr. Lewis thought the first shot was a blank although this, based on the firearm examiner’s evidence, was virtually impossible. Mr. Martin’s testimony that he shot an initial warning shot was in service of his plea of self-defence. For that reason, I would place no reliance upon it. Moreover, only one shell casing was found in the parking lot. Mendoza only heard one shot. For these reasons, I cannot find beyond a reasonable doubt that there were two shots.

[11] Mr. Martin’s criminal record is poor. He has three previous weapons convictions. I would note that the gun charge upon which Justice Duncan sentenced Mr. Martin is a subsequent offence in fact and, as Ms. Kim agreed, is only admissible to reflect on Mr. Martin’s rehabilitative potential.

[12] There are also many other entries on a criminal record going back to 2003 when Mr. Martin was 18 years old (he is now 37): assaults, numerous fail to comply with probation or bail order entries, dangerous driving and one drug trafficking offence, amongst others. The instant offence is by far the most serious he has committed, the others with the exception of the firearm offence committed in 2019 and a concealed weapon charge for which he received 280 days pre-trial custody, not attracting significant jail time.

[13] Ms. Kim compiled a useful chart of other cases in which the victim was shot with a gun. There were cases in which a life sentence was imposed (R. v. Deeb, 2019 ONCA 875, affirming, R. v. Deeb, 2013 ONSC 7870); cases in which the sentence was 15-16 years (R. v. Dennis, 2013 ONCA 708, affirming, R. v. Dennis, unreported, Ontario Superior Court of Justice, November 17, 2020, Pardu J.; R. v. J.B., 2012 ONSC 184; R. v. Chevers, 2011 ONCA 569, affirming, R. v. Chevers, unreported, Ontario Court of Justice, February 6, 2009, Scott J.; R. v. Situ, 2010 ONCA 683, affirming, R. v. Situ, [2006] O.J. No. 1990 (C.J.)) and 10-11 year sentences (R. v. Guedez-Infante, 2009 ONCA 73; R. v. Adan, 2019 ONCA 709). I have read the cases but do not plan to make specific reference to them. The myriad factors in play in a sentencing and the subjectivity of the exercise (see R. v. Shropshire, [1995] 4 S.C.R. 227 (S.C.C.) at para. 46) renders similar cases, after developing a general range of sentence, of limited assistance.

[14] The moral blameworthiness for attempted murder is the same as for murder, it is only the lesser consequences that distinguish attempted murder: R. v. Forcillo (2018) 141 O.R. (3d) 752, 2018 ONCA 402 (Ont. C.A.) at paras. 129-130. As with all crimes of serious violence, the paramount sentencing factors are general deterrence and denunciation.

[15] When asked at the sentencing hearing, Ms. Kim, with impressive candor, acknowledged that a 15 year sentence would vindicate general deterrence as effectively as would the 18 year sentence she was requesting. The force of logic behind this reality is compelling: see the remarks of Wilson J. in R. v. Hess; R. v. Nguyen, [1990] S.C.J. No. 91, [1990] 2 S.C.R. 906 (S.C.C.) at paras. 24-27. A sentence of 18 years does not send an appreciably stronger message to the public than would a 15 year sentence. As long as the sentence is in the same general realm, the general deterrent accrual from a higher sentence may in some situations, including this one, be relatively minor.

[16] This points to the centrality of denunciation. In this case, the range recommended by Ms. Izadi is not proportionate and fails to reflect the aggravating factors, specifically, the firing of a gun at point blank range and the terrible consequences to Mr. Lewis.

The Mitigating Factors

[17] With respect to the offence, the element of provocation played an important causal role. Provocation must be taken into account in properly evaluating Mr. Martin’s moral culpability.

[18] A very helpful Enhanced Pre-Sentence report authored by Michelle Richards, BA, BSW, MSW, RSW was filed on Mr. Martin’s behalf. With respect to the offender, Mr. Martin has good support from his family and friends. He has two daughters to whom he is extraordinarily devoted.

[19] The enhanced pre-sentence report relates that Mr. Martin is estranged from his parents. They were divorced before he was born and he grew up with his mother. She would beat him regularly and was an abusive parent to him and his sister. In adolescence, Mr. Martin was sent to live with his father and they had a very close relationship for a few years. However, when Mr. Martin started hanging around with people that supposedly had a negative influence on him, his father severed ties with him. Mr. Martin sees him only rarely now. Mr. Martin’s bringing up was sadly dysfunctional and splintered

[20] Mr. Martin grew up in impoverished, straitened circumstances. He started stealing in his early teens. He achieved grade 11 in high school. There were significant behavioral problems. He has never really been employed. Mr. Martin is a serious rap artist and has had considerable success.

[21] Mr. Martin conveyed to the pre-sentence report author that he has been mistreated by the police over the years. He has been subject to the systemic anti-Black racism which is a blight on our society.

[22] The author of the report writes:

Between the lifestyle that exposed him to significant harm (the stabbing at age 19 as discussed on page 10) and negative police interactions, Mr. Martin has lived with hyper vigilance, a feature that assists him navigating various environments.

[23] With respect to remorse, Mr. Martin claims to be remorseful. However, on closer examination, it is not without a major qualification. He has expressed regret that Mr. Lewis is paralyzed for life. But he maintains that he was justified in shooting him in self-defence. That stance on sentence, after a contested trial, is not unusual.

[24] In relation to anti-Black racism, I have no doubt it has permeated Mr. Martin’s life. There are some specific detriments which can be seen in the pre-sentence report. Mr. Martin grew up in Durham region in a predominantly white area. As all the other kids were white, Mr. Martin said that he had no friends in school. In his mind, the teachers treated him differently because he is Black. In addition, he recounted several incidents of police brutality against him. He has also been treated poorly in jail by predominantly white correctional officers. Although there is no way to test these complaints, the prevalence of anti-Black racism throughout our community lends them good support.

Rehabilitation

[25] On paper, Mr. Martin is a poor candidate for rehabilitation. He has a continuous record although not for the most serious offences other than the 2019 firearm offence. There is a real concern with respect to recidivist gun offences, given his attraction to guns. His remorse was far from overwhelming. The offence at hand is very serious. In the West End Kings and in other avenues in his life, Mr. Martin has circulated in a milieu of criminality. His lifestyle has not been pro-social.

[26] Mr. Martin’s problems in life cannot be primarily attributed to the fact he is Black. But the anti-Black discrimination he has faced in school, on the streets and in jail most recently cannot but have had a severely destructive impact on him.

[27] In R. v. Morris, 2021 ONCA 680, 74 C.R. (7th) 390 (Ont. C.A.) the Court of Appeal said,

90 In Gladue and Ipeelee, the systemic and background factors relevant to sentencing included the systemic discrimination, both historical and ongoing, suffered by Indigenous persons, especially in the criminal justice system. The experience of Black people in Canada is also marked by discrimination. Black people share with Indigenous peoples many of the same disadvantages flowing from that discrimination. The reports filed on Mr. Morris’s sentencing speak eloquently to the historical roots of that discrimination and its pernicious ongoing effect on many aspects of the day-to-day lives of Black people in Canada.

[28] I recognize my limitations as a white male trying to comprehend and appreciate what it is like living under the cloud of anti-Black racism. Growing up in a predominantly white milieu, Mr. Martin describes being treated like a pariah. That was profoundly damaging to him. When his dysfunctional family life is added to that, he had no where to turn. He was betrayed and humiliated by both his mother and then his father. Perhaps this explains to some extent his enthusiasm for being part of the West End Kings. It had the allure of camaraderie and of family.

[29] The pre-sentence report author concludes,

Mr. Martin has demonstrated a capacity for reflection and humility, evidenced by the reports of him apologizing for past issues with some of his loved ones since incarceration. He is also pragmatic and understands that he will be serving some time, and it would be best for him to focus on what he envisions for his future post-incarceration.

[30] I, like the pre-sentence author, see a glimmer of hope for Mr. Martin. He does have the capacity for reflection. His elocution at the end of the sentencing hearing had its fierce and defiant moments but it was sincere and straight-up about his life. For the most part, he was not playing to the audience, the trial judge who must sentence him to the penitentiary. That itself is quite unusual. He is independent minded which is both good and bad.

[31] Mr. Martin’s friends and family universally describe him as smart. I agree. He is intelligent and this shines through despite his relative lack of education. His intelligence with his capacity for reflection, his love of his daughters and his devotion to his music lead me to hold out some optimism for him. Of course, statistically the odds are against him particularly now that he is going to the penitentiary. No one has the ability to look into the future. But there is more to Mr. Martin than his misdeeds would suggest. This is a turning point in his life, one way or the other.

[32] Mr. Martin does, I believe, have a chance of turning himself around. While there is little consideration of the matter in the jurisprudence, I believe that if there is a reasonable possibility of rehabilitation, that is enough for it to become a sentencing principle of some weight depending on the seriousness of the offence and other circumstances. Rehabilitation and the hope that jail will not be simply a revolving door for offenders is a key aspiration for criminal justice. Without a real attempt at rehabilitation, the system can temporarily protect society by imposing jail terms but may not be able to achieve much more.

[33] Chief Justice Lamer said in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61:

20 Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.

[34] In R v Woolcock, [2002] OJ No 4927 (Ont.C.A.) at para. 13, the Court of Appeal quoted with approval from Dubin J.A. (as he then was) dissenting in R. v. Pearce (1974), 16 C.C.C. (2d) 369 (Ont. C.A.) at p. 371:

It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.

[35] Justice Gillese said in R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88 (Ont. C.A.) at para. 22:

Section 718 of the Criminal Code states that, “The fundamental purpose of sentencing is to protect society and to contribute . . . to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more” of six specified objectives. Deterring the offender and assisting in rehabilitating offenders are two of those objectives — and both must be addressed when crafting a “just sanction” that meets the fundamental purpose enunciated in s. 718.

[36] There are some comments in R. v. Morris which are apropos of rehabilitation issues in the context of anti-Black racism:

79 The social context evidence can… provide a basis upon which a trial judge concludes that the fundamental purpose of sentencing, as outlined in s. 718, is better served by a sentence which, while recognizing the seriousness of the offence, gives less weight to the specific deterrence of the offender and greater weight to the rehabilitation of the offender through a sentence that addresses the societal disadvantages caused to the offender by factors such as systemic racism.

[37] The social context evidence, like in Morris, justifies trading some of the emphasis which would normally be put on specific deterrence for a greater emphasis on rehabilitation.

[38] In my view, a sentence ought to be crafted which, while satisfying the primary objectives of general deterrence and denunciation, kindles as much hope for Mr. Martin’s rehabilitation as can be accommodated. In cases in which rehabilitation is possible, there is a confluence between protecting society and encouraging rehabilitation.

[39] Examining the offence, this was a very serious offence involving the evil of gun violence with life shattering repercussions for the victim. That must be reflected in the sentence imposed. Taking into account the offence and the offender, in my view a term of 14 years in custody before credit for pre-trial custody will serve the principles of sentencing and preserve, to the extent possible, room for Mr. Martin’s rehabilitation. I recognize that this quantum is towards the bottom of the range for the offences. But for the reasons set out, I believe it is a proportionate sentence.

[40] Since warrant expiry on the other gun offence, Mr. Martin has been in custody for 10 months. With Summers credit, that is equivalent to 15 months.

[41] Furthermore, I take judicial notice of the harsh jail conditions as a result of COVID in the last 10 months of pre-trial custody. I also take notice that COVID is more prevalent than ever before, although not as severe, and will impact Mr. Martin in the penitentiary.

[42] I do not accept Ms. Kim’s argument that jail is an unforgiving place in which harshness is inevitable and, therefore, the extra hardship from COVID should not result in extra credit. In my view, COVID has made a thoroughly inhospitable place even worse.

[43] I would take 9 months off the sentence for future COVID restrictions during Mr. Martin’s sentence, relying on R. v. Henry, 2021 ONCA 892 (Ont. C.A.) at paras. 12-14; R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978 (Ont. C.A.) at paras. 8-10; R. v. Hearns, 2020 ONSC 2365 (Ont. S.C) at para. 22. The so-called sixth wave is now upon us and the virus is rife throughout the community and the world.

[44] So I impose these sentences taking totality into account: For the attempted murder with a firearm, 12 years minus the fifteen months pre-trial credit for a total of 10 years, 9 months. For the Section 95 offence, the sentence would normally be 2 years but will be reduced by nine months as explained for a total of 15 months. The sentences will be consecutive to each other.

For these reasons, the total sentence imposed today will be 12 years. The indictment will be endorsed accordingly.

D.E Harris J.

Released: April 21, 2022