Court File and Parties

COURT FILE NO.: CR-22-10000530-0000 DATE: 2024-05-14

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RICHARD JOHN RAYMOND

Counsel: Anna Leggett and Levi Kardemir, for the Crown Gabriel Gross-Stein, for the Accused

HEARD: January 6, 2023, and March 7, 2024

REASONS FOR SENTENCE

HIMEL J.

[1] Richard John Raymond entered pleas of guilty to the offences of reckless discharge of a prohibited firearm contrary to s. 244.2(1) of the Criminal Code, R.S.C. 1985, Chap. C-46, as amended, possession of a loaded prohibited firearm while not being the holder of a licence or registration certificate contrary to s. 95(1) of the Code, and possession of a firearm while prohibited by an order made on January 1, 2018 pursuant to s. 109 contrary to s. 117.01(1) of the Code. He elected to be tried by a judge sitting alone.

[2] Mr. Raymond confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence. Following the plea of guilty, counsel requested that an Enhanced Pre-Sentence Report be conducted in accordance with the type of report outlined in R. v. Morris, 2021 ONCA 680. I ordered that such a report be prepared. It has now been received and filed as an exhibit.

[3] Counsel made submissions to the court on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND

[4] On Wednesday, November 24, 2021, Mr. Raymond was in front of the Ultraviolet Nightclub located at 1096 Queen Street West in the City of Toronto. At approximately 3:25 a.m., he was involved in an altercation with an unknown person. During this altercation, Mr. Raymond produced a Glock handgun with an over capacity magazine. He discharged the handgun multiple times in the direction of the person while he was on a public street in the vicinity of the general public and other patrons of the bar. Other persons also had firearms and a gun fight ensued.

[5] Mr. Raymond ran southeast of the nightclub while discharging his firearm and south on Dovercourt Road when he was struck in the left leg by gunfire. Mr. Raymond fell, dragged himself to a laneway 10 metres away from his vehicle which was a white Volkswagen Passat. He threw his firearm and it landed nearby. These events are captured on surveillance video from an exterior camera on a condominium building located on the west side of Dovercourt Road. Mr. Raymond was located by police and paramedics who provided first aid.

[6] Police found the Glock firearm with the overcapacity magazine and the car keys. Mr. Raymond was transported to St. Michael’s Hospital where he was arrested and given his right to counsel. He was held at the hospital for a remote bail hearing because of his injuries.

[7] Police obtained a search warrant which they executed on Mr. Raymond’s vehicle. They found in the centre front console a second overcapacity magazine which was loaded with 17 rounds of 9 mm Luger ammunition. The 9mm Glock located near Mr. Raymond was seized and tested by a firearms examiner with the Toronto Police Service. During that examination, three rounds were test fired from the firearm and sent to the Centre for Forensic Sciences. Eighteen spent cartridge casings were seized from the scene and examined by a forensic scientist in the Firearms & Toolmarks Unit. There is an agreement of class and characteristics between 15 of the spent cartridge casings and the three test-fired cartridges from the 9 mm Glock that was located near Mr. Raymond.

EVIDENCE LED AT THE SENTENCING HEARING

[8] Crown counsel filed a map of the location of the Ultraviolet Nightclub, the location of where the gunfire took place and where, after Mr. Raymond was shot, he dragged himself to a laneway. Ms. Leggett also submitted the criminal record of Mr. Raymond which dates back to 2013 when he was convicted of possession of a Schedule I substance and fined $250 and, in 2018, he was convicted of possession of a loaded prohibited or restricted firearm for which he received a sentence of three years’ imprisonment with credit of 56 days of pre-sentence custody and a mandatory weapons prohibition for life under s. 109 of the Code.

[9] Also submitted at the sentencing hearing was the Enhanced Pre-Sentence Report dated February 13, 2024, completed by Michelle Richards who is a social worker. The report details Mr. Raymond’s background and circumstances which will be referenced below. Counsel for Mr. Raymond filed lockdown records from the Toronto South Detention Centre and an affidavit from Mr. Raymond. He also submitted certificates of completion of courses that Mr. Raymond has done while in custody.

[10] Mr. Raymond spoke at the sentencing hearing and said that he was sorry for his actions in putting people in jeopardy. He wants to be there for his children, and he is trying to change. He would like to get back to working and he has taken a university course in creative writing. His spouse was present at the hearing.

POSITIONS OF THE PARTIES ON SENTENCE

Position of the Crown

[11] Crown counsel, Mr. Kardemir, submits that an appropriate sentence in this case is a global sentence of seven years apportioned as six years for the reckless discharge of firearm offence and four years for the possession of the loaded prohibited firearm offence imposed concurrently and one year consecutive for the breach of the weapons prohibition order. The Crown acknowledges that Mr. Raymond has been in custody since his arrest on November 24, 2021, at the Toronto South Detention Centre and that the sentence should be with credit for pre-trial custody in accordance with R. v. Summers, [2014] S.C.R. 575 at the rate of 1.5 days for each day of custody.

[12] Crown counsel points out that Mr. Raymond had been released from custody on the previous s. 95 offence in 2019. His behaviour in 2021 was a flagrant breach of the s. 109 order and such aggravating behaviour of discharging a firearm in a public place calls for a significant sentence. He was outside of a nightclub with pedestrian traffic and near to residences. The firearm was discharged a number of times. There was a great risk to public safety. Furthermore, Mr. Raymond had a second fully loaded magazine in his vehicle. Counsel submits that Mr. Raymond has a short but highly relevant criminal record with a previous s. 95 offence. Two years after he was released from custody, he was discharging a firearm in highly dangerous circumstances.

[13] Mr. Kardemir cited a number of decisions dealing with the range of sentence for reckless discharge of firearm including: R. v. Abdullahi, 2014 ONSC 272, where F.E. McWatt J. imposed a sentence of five years; R. v. Fogah-Pierre, 2024 ONSC 386 where G.E. Roberts J. imposed a sentence of five years; R. v. Dhaliwal, 2018 ONSC 303, where J.M. Wilson J. imposed a sentence following a jury trial of seven years for reckless discharge which was reduced on appeal to six years; R. v. Husband, 2022 ONSC 5223, where a sentence of 6.5 years was imposed for reckless discharge of firearm; R. v. Mitsakis, 2022 ONSC 5390, where P.A. Schreck J. imposed a 6.5 year sentence for reckless discharge of firearm; R v. Campbell, 2021 ONSC 4193, where C.T. Hackland J. imposed a sentence, following a trial, of seven years for reckless discharge of firearm; R. v. Abderazak, 2022 ONSC 67437, where M.K. Fuerst J. imposed a sentence of seven years for reckless discharge of firearm as part of a 12 year global sentence following a guilty plea and R. v. Weir, 2018 ONSC 783 where N.E. Garton J. imposed a 10 year sentence for discharge of firearm and possession of a loaded prohibited or restricted firearm.

[14] Crown counsel submits that in the case of Mr. Raymond, the range of sentence would be in the seven to eleven years range because of Mr. Raymond’s previous criminal record, the injury to Mr. Raymond and the serious risk to the public. However, applying mitigating factors in accordance with R. v. Morris, the lockdown days and his plea of guilty, Crown counsel submits that a six-year sentence for the discharge of firearm offence is appropriate less credit of pre-sentence custody at 1.5:1.

[15] Crown counsel emphasizes the prevalence of gun crime in Toronto and the tremendous danger that a shootout on a city street in a commercial and residential area can pose. He asks the court to take judicial notice of the prevalence of gun crimes and references para. 95 in R. v. Lacasse.

[16] Counsel commented on the lockdown records filed by the defence, Crown counsel points out that up until September 4, 2023, 105 of 300 lockdowns were partial lockdown days (from 8:00 a.m. to 10:00 a.m.). He submits that the harsh conditions at the jail are already considered as a mitigating factor in arriving at the six-year sentence for the reckless discharge of firearm offence.

[17] With reference to the Morris report, the Crown submits that the focus is on Mr. Raymond feeling justified in carrying a weapon and that the focus must also be on the potential harm to others. Mr. Kardemir recognizes that Mr. Raymond is still young and has prospects of rehabilitation but that drastic steps would have to be taken for him to remove himself from negative influences. The Report also mentions misconducts while at the Toronto South Detention Centre demonstrating a disregard for following rules. For these reasons a seven-year global sentences is fit and appropriate. Crown counsel requests the following ancillary orders: a s. 109 order for life, a DNA order in that the offence is a primary designated offence and an order of forfeiture of the gun and ammunition.

Position of the Defence

[18] Counsel for Mr. Raymond, Mr. Gross-Stein, submits that the appropriate sentence in this case is a global sentence of five years or, in the alternative, five years for the reckless discharge of firearm offence and six months for the breach of s. 109 order. In terms of mitigating factors, counsel points out that Mr. Raymond has pleaded guilty and has expressed remorse. He also expressed such remorse to the assessor who prepared the Enhanced Pre-Sentence Report. He was co-operative and sorry for his actions. He has saved the court valuable time especially when there is a backlog of cases arising from the COVID-19 pandemic.

[19] Mr. Gross-Stein outlined Mr. Raymond’s background including that he grew up in a situation where his father was in and out of jail. According to his mother, he was a promising athlete but because of racial slurs, he dropped out of hockey and played basketball instead as there were more black players. His sister is a professional basketball player in Europe. He became involved in the criminal justice system as a youth and moved to his father and stepmother’s home in 2015. The area was notorious for crime.

[20] Mr. Raymond experienced the loss of a friend at school and the loss of his brother in a situation where he believes he was the intended target of the shooting. As discussed in the Enhanced Pre-Sentence Report, these experiences contributed to his fear of death and caused him to carry a firearm for protection. Mr. Raymond had done some work in construction as a machine operator. He has a network of a spouse and three children. He is an attentive parent ensuring that his children will be involved in sports.

[21] Mr. Gross-Stein submits to the court that there were triable issues in the case with elements of self-defence. He recognizes, however, that there were also risks of that defence before a judge and jury where excessive force could be argued. That is the basis of the plea. Counsel again emphasizes that Mr. Raymond was carrying a gun for protection. He later said he should have avoided going anywhere where he would need a gun for protection. Mr. Raymond was fearful of death and returned shots that were fired at him. His instinctive response was to prevent his own death.

[22] Counsel also pointed out that Mr. Raymond had significant injuries from the shot to his leg. He walks with a cane and would like to have further surgery on the fractured tibia. He has limited physiotherapy at the jail.

[23] Regarding the conditions of Mr. Raymond’s incarceration, he was subject to 300 lockdowns according to the records which are only up to September 2023. Counsel cites the decisions of R. v. Jama and Farah, 2021 ONSC 4871 and R. v. Williams, 2024 ONSC 109, showing that the circumstances of incarceration have not changed despite the judicial comments that have been critical of government for allowing such conditions to exist in the jail.

[24] In the case of Mr. Raymond, because he suffered injuries, he has been in a medical unit but has not received appropriate medical treatment. His injuries will have a lifelong consequence for him. Mr. Gross-Stein submits that the court should impose a global sentence of five years, or in the alternative, five years for the discharge firearm offence and six months for breach of the prohibition order. He asks the court to award 2:1 credit for the whole time he has been in custody, leaving a balance to serve of one year. Alternatively, he submits the court could grant 2:1 for the year of lockdowns which would reduce the sentence accordingly. Counsel consents to the ancillary orders sought by the Crown.

THE LAW

[25] The courts have repeatedly stated that the principles of denunciation and deterrence are paramount objectives for gun-related crimes: see R. v. Danvers, 2005 ONCA 30044, [2005] O.J. No. 3532, 201 O.A.C. 138 at para. 77-78. The prevalence of gun violence in our community must be stopped through exemplary sentences. Justice Armstrong emphasized the plague of firearms and their profound consequences on the safety of the city and the need for exemplary sentences to deter others from arming themselves with guns. Possession of an illegal handgun is a serious offence warranting a severe penalty: see R. v. Nur, 2013 ONCA 677 aff’d 2015 SCC 15, [2015] 1 S.C.R. 773. There, Justice Doherty wrote at para. 206:

Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

[26] A conviction for the offence of reckless discharge of a loaded or prohibited firearm carries a maximum sentence of 14 years and a minimum sentence of five years: see s. 244.2(3). In R. v. Bellissimo, 2009 ONCA 49, the Ontario Court of Appeal increased the sentence from 5 years to 10 years where the accused fired several shots in a restaurant at the victim, significantly injuring him and causing minor injury to another person and narrowly missing a third person. The court said, “We agree that the range of sentence for these kinds of serious gun offences is between seven and eleven years”. In R. Jama, 2021 ONSC 4871, Schreck J. wrote that the range in Bellissimo has been applied in cases of intentional shootings but that discharging a restricted or prohibited firearm where others are present but not physically harmed is five to seven years in jail. In the case of R. v. Dhaliwal, 2019 ONCA 398, the accused was convicted after a jury trial of reckless discharge of firearm and sentenced by Schreck J. to five years for reckless discharge of firearm offence.

[27] In reviewing the cases submitted by the Crown regarding the appropriate range of sentence, I note that in some of the decisions, the sentences followed a trial. In the case of Mr. Raymond, he pleaded guilty and took responsibility for his actions. In some cases, the offender did not have a criminal record for a firearm offence. In the case of Mr. Raymond, he had a previous s. 95 offence and was under an order prohibiting him from possessing any weapons.

[28] As for the offence of possession of a loaded restricted or prohibited weapon, the courts have emphasized the long-standing problem of gun crime in the Greater Toronto area. The Supreme Court in Nur discussed the range of three years for possession of a loaded prohibited or restricted firearm in a true crime situation. The Ontario Court of Appeal also stated in R. v. Morris, at para. 71, that a three-year sentence may be appropriate for “the vast majority of offences” under s. 95, various aggravating circumstances may raise the appropriate range of sentence. Where the offender has the gun on his person in a public place and attempts to discard it while escaping from the police, these circumstances all are aggravating factors even though there may be no evidence of other criminality: see R. v. Elliston, 2010 ONSC 6492 at para. 15, R. v. McCue, 2012 ONCA 773 at para. 15, R. v. Brown, 2010 ONCA 745 at para. 7. In R. v. Morris, the Ontario Court of Appeal outlined that where the accused fled from police while armed with a loaded handgun and left the firearm in a public space, these are aggravating factors: see paras. 170, 172 and at para. 68.

[29] In the case of Mr. Raymond, he was in possession of a firearm in a public place and became involved in a situation of extreme danger. The appropriate range of sentence is raised significantly where the offender is a recidivist and has a record for a s. 95 offence.

[30] Sentences for the offence of breach of a prohibition order are typically ordered to be served consecutively to any substantive offences in order to demonstrate that the breach is different from the substantive offence and engages different societal interests: see R. v. Maddigan, 2009 ONCA 269 at para. 1. In R. v. Husband, McKelvey J. wrote at para. 43 concerning a breach of a s. 109 prohibition order: “The sentence is consecutive, consistent with the principle that an intentional violation of an unequivocal court order requires some effective additional sanction. Offenders must understand that court orders governing their conduct must be followed or there will be real consequences for their violation.”

DECISION

[31] I turn to some of the general principles of sentencing set out in section 718 of the Criminal Code. The fundamental purpose of sentencing is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[32] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh; the offender should not be deprived of liberty if less restrictive sanctions are appropriate; and all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.

[33] I now consider the application of the law to the circumstances of this case. A proper sentence must take into account the circumstances of the offender and the circumstances of the offence. I first look at the circumstances of the offender and consider Mr. Raymond’s background which is outlined in detail in the Enhanced Pre-Sentence Report.

[34] Mr. Raymond is 30 years of age and was born on May 13, 1994. His mother is from Jamaica and his father was born in Nova Scotia. He is an only child to his parents who never married. He has seven half siblings. Mr. Raymond was raised in the primary care of his mother. He was an excellent athlete and played hockey and basketball. His father was absent from his life in the early years as he was in and out of jail. His mother was at work, and he was cared for by an “aunt” who was really a next door neighbour who was very close to him.

[35] Mr. Raymond’s sister is a professional basketball player who lives in Europe. Mr. Raymond’s mother worked in an administrative capacity at York University for 35 years. She told the assessor that from a young age, Mr. Raymond was conscious of racial profiling and was subject to anti-Black racism. He experimented with playing hockey but was subject to anti-Black racism which caused him to quit and focus on basketball. Mr. Raymond was living with his “aunt” when his mother said he had become unmanageable.

[36] Mr. Raymond moved to live in his father’s home in the care of his father and stepmother in 2015. He liked having siblings and never returned to live with his mother. He was asked to leave his father’s home when he was 17 years old, however, because of criminal activity and suspensions from school.

[37] Mr. Raymond’s stepmother’s son was shot and killed, and she banned Mr. Raymond from living with them when she learned that Mr. Raymond may have actually been the target. This caused Mr. Raymond to be estranged from his stepmother.

[38] Mr. Raymond’s first ten years were spent living in an apartment at Jane and Steeles. Then they moved to a condominium at Jane and Sheppard. In 2015, he moved to live with his father and stepmother in the Malvern area where crime was an issue. He told the assessor that he was subject to racial profiling, and this included being wrongfully accused of a crime and detained.

[39] As for his education, Mr. Raymond attended C.W. Jefferys Collegiate for grade nine, but he had his first encounter with the criminal justice system there. His friend, Jordan Manners was shot and killed at the school. When Mr. Raymond moved to live with his father in Scarborough, he attended St. Matthew Theresa Catholic School but was expelled in grade ten. He attended Cardinal Newman Catholic Grade School but discontinued in grade 11. Then he attended Scarborough Centre for Alternative Studies. He obtained his Ontario Secondary School Diploma in November 2015. As for employment, he worked at a community-based program that assisted with employment opportunities and worked in retail. He became a general labourer in 2014 and expressed an interest in learning a skilled trade.

[40] Mr. Raymond has a partner and three young children.

[41] The Enhanced Pre-sentence Report described Mr. Raymond’s fear of death and criminal activity as a consequence of his experiences in the community and being subject to anti-Black racism. The assessor noted that Mr. Raymond does have a support system, that he should avail himself of training and education while in custody and she suggested some possible training on his release. She noted that Mr. Raymond has expressed regret for his actions and recognized that he should have avoided going anywhere that required a gun for protection.

[42] I now turn to the circumstances of the offences. Mr. Raymond admitted the facts of the offences which included discharging a firearm where there was pedestrian traffic outside a nightclub in a commercial and residential neighbourhood. The firearm was discharged a number of times as demonstrated by the number of casings matching Mr. Raymond’s firearm. Mr. Raymond also had a fully loaded magazine in his vehicle. He collapsed ten metres from the vehicle and threw the firearm away. He was injured during the shooting. These events demonstrate a significant danger to the public and to Mr. Raymond himself.

[43] Mr. Raymond expressed in the Enhanced Pre-Sentence report that he was carrying the gun for self-protection. That is only “a limited mitigating factor” as discussed in R. v. Morris, at paras. 101, 165. This explanation does not diminish the dangerousness of his conduct.

[44] In summary, I consider the sentencing principles and the circumstances of the offender and of the offences. I consider that deterrence and denunciation are the overriding principles of sentencing, but I also recognize that a sentence must take into account Mr. Raymond’s circumstances including his background and the need for rehabilitation.

[45] With respect to mitigating factors, Mr. Raymond has entered guilty pleas to the charges for which he is being sentenced which demonstrates remorse. He has also expressed such remorse to the court and to the assessor. He has saved valuable court time and assumed responsibility for his conduct. Mr. Raymond’s personal circumstances and his extremely difficult early life experiences are relevant considerations. I consider Mr. Raymond’s background of personal hardship to be extremely significant in that it contributed, in my view, to his criminality.

[46] I view Mr. Raymond’s circumstances as exceptional as to the extent of his past hardship and consider his personal history including the factor of anti-Black racism as a very relevant mitigating factor in this case: see R. v. Morris, at paras. 79, 81. There, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender’s prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing.

[47] The aggravating factors in this case are that Mr. Raymond has a criminal record which includes a s. 95 offence in 2018. He was on a s. 109 order prohibiting him from having a weapon at the time of these offences. The weapon was in a public place and was discharged in highly dangerous circumstances. While the assessor’s report may suggest that the reason for the possession of the gun was for self-protection, this factor does not diminish the seriousness of the offences. In addition, he was in possession of a firearm in contravention of a prohibition order which is an offence against the administration of justice and a relevant factor.

[48] In conclusion, I take into account the sentencing objectives set out in s. 718 of the Code and the circumstances of the offence and of the offender. I recognize that denunciation and deterrence are paramount sentencing principles for these offences, but that rehabilitation of the offender is also a key objective which ultimately protects society. I accept that Mr. Raymond has rehabilitative potential especially given the support he has in the community with his partner and his desire to change his ways and secure employment particularly because of his three children. His experience in jail, particularly in the medical unit and during lockdowns that have existed for significant periods of time have caused him to want to change for the better.

[49] Sentencing is a fact-driven process where the court must consider the unique circumstances of the case. I recognize the impact of anti-Black racism on Mr. Raymond and the difficult circumstances of his upbringing. All of these circumstances must be considered in fashioning an appropriate sentence. However, the circumstances of the offences requires that a sentence must also recognize the need for denunciation and deterrence for offences of this kind.

[50] I also consider the relevant caselaw with reference to a breach of a prohibition order and how the sentence is to be imposed.

[51] Mr. Raymond has spent a significant amount of time in custody from his arrest on November 24, 2021, until the present time. That is a total of 903 days.

[52] I now consider whether the circumstances of his pre-sentence custody should be considered in fashioning the overall sentence. In deciding whether enhanced credit is appropriate, the court will consider the conditions of the presentence incarceration and the impact of those conditions on the accused: see R. v. Duncan, at para. 6. In R. v. Marshall, 2021 ONCA 344, at paras. 50-53, however, Justice Doherty wrote at para. 52:

Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[53] In addition to information contained in the Enhanced Pre-Sentence Report, Mr. Raymond submitted an affidavit which outlined that because of the significant injuries to his leg during the shooting, he has been in a medical unit at the Toronto South Detention Centre. He was hospitalized at St. Michael’s Hospital until December 2, 2021, and then transferred to Toronto South Detention Centre. While in the jail, he has been subject to 300 lockdowns which were mainly due to staff shortages and some due to isolation protocols. During these lockdowns, he would be let out for a 20 minute for a shower and telephone call which were not guaranteed. Because he was in the Medical Health Unit, there is just a bed and a toilet in his cell which is different from regular cells where there is a table, chair and shelf. As a result, during lockdowns, he would have to eat in his bed or on the floor. The confined space caused him a great deal of stress and he could not move around properly which hindered his recovery from his injuries. He has limited physiotherapy every three weeks for five minutes to provide exercises. He says that conditions have made it difficult to have contact with family because of lockdowns. He says that he has become very depressed during his time in custody and that conditions have affected his physical and mental well-being.

[54] Mr. Raymond had also expressed that his medical needs have not been adequately met. He threatened to go on a hunger strike if he was not taken to a dentist when he had a problem with a tooth. He also had to advocate to see a surgeon regarding his gunshot injury. He has had physiotherapy and receives medication but believes that he should have access for a further surgery for the fracture to his tibia. He has had misconducts in the jail but has been reprimanded and lost privileges for them. He has taken some anger management classes while in jail.

[55] Mr. Raymond has also managed to complete a number of courses while in custody and has provided certificates of completion to the court.

[56] I consider that Mr. Raymond spent pre-trial custody in extremely difficult conditions during the COVID-19 pandemic and living through the precautions taken during this period of time as well.

[57] There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. In R. v. Steckley, 2020 ONSC 3410, Justice Kelly gave 10 months of Duncan credit where the accused spent 132 days in lockdown with 57 days during the pandemic. In R. v. Baldwin, 2021 ONSC 7025, Maxwell J. deducted one year for harsh circumstances involving 124 days in lockdown.

[58] I agree with counsel for Mr. Raymond that credit for pre-sentence custody should be greater than the R. v. Summers 1.5:1. Accordingly, exercise my discretion and I grant credit of 10.5 months for the period of harsh pre-sentence incarceration conditions. I recognize that his incarceration was caused by his own actions of being involved in a situation where gunshots were exchanged, and he suffered a significant injury to his leg which has required that he be in the medical unit and be subject to numerous lockdowns. The impact on Mr. Raymond which he described in his affidavit is significant both physically and mentally. I accept that it has caused him to reflect and to not want to commit further offences to change his life.

[59] I recognize that Crown counsel’s position on a global sentence of seven years is a reasonable one in light of Mr. Raymond’s criminal record. However, I consider the circumstances in this case, particularly the exceptional background of hardship of Mr. Raymond and the factor of anti-Black racism in considering the principle of totality and in imposing an appropriate overall sentence.

[60] For these reasons, I am of the view that an appropriate sentence for the discharge of firearm is one of six years; for the possession of the loaded prohibited firearm (s. 95) offence the sentence is four years to be served concurrently to the sentence for discharge of firearm. In these unique circumstances, I am of the view that a sentence of six months is appropriate for the possession of the gun while prohibited offence. This sentence shall be served consecutive to the s. 244 offence. The global sentence is 6 years and 6 months of imprisonment. This would equal 2,370 days.

[61] Having served 903 days of pre-sentence custody, at 1.5:1 in accordance with Summers that would be credit of 1,355 days. I exercise my discretion and in light of the number of lockdowns and the impact on Mr. Raymond, I credit him with an additional 10.5 months or 315 days in accordance with Duncan and Marshall. This leaves a remaining sentence of 700 days or one year and 11 months and 5 days remaining to be served.

[62] I further make an order under s. 109 prohibiting Mr. Raymond from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Raymond provide a sample of his DNA pursuant to s. 487.051(3) of the Criminal Code as reckless discharge of firearm is a primary designated offence under this provision. There will be an order of forfeiture of the gun and ammunition found in the car and on the road following Mr. Raymond’s arrest.

Himel J. Released: May 14, 2024

COURT FILE NO.: CR-22-10000530-0000 DATE: 20240514 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – RICHARD RAYMOND REASONS FOR SENTENCE

Himel J. Released: May 14, 2024