Court File and Parties

COURT FILE NO.: CR-22-30000215-0000 DATE: 20240611 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – TERRELL HARRISON

Counsel: Dimitra Tsagiris, for the Crown Paul Aubin, for Mr. Harrison

HEARD: April 12, 2023, May 27, 2024

R.F. GOLDSTEIN J.

Reasons for Sentence

[1] On May 16, 2021, Terrell Harrison chased his father, Michael Harrison, down the street and into his grandmother’s house. He then shot his father. His father was severely wounded but, fortunately for everyone, survived. The shooting followed a long history of family conflict and tension, particularly conflict and tension between father and son. Mr. Harrison pleaded guilty to aggravated assault and discharging a firearm with intent to wound. He now comes before the court for sentencing.

The Offence

[2] Terrell Harrison (who I will refer to as Mr. Harrison) is the son of Michael Harrison. Michael Harrison is the son of Emily Combs – meaning Ms. Combs is Mr. Harrison’s paternal grandmother. Ms. Combs raised Mr. Harrison from a young age. She lived at 1344 Pharmacy in Toronto. Michael Harrison also lived there for many years but because of the tension between father and son Mr. Harrison moved in and out.

[3] On May 16, 2021, Mr. Harrison and his father met unexpectedly in the neighbourhood. They had an altercation. According to Mr. Harrison, his father was intoxicated and irate. His father struck him on the head. His father then walked towards Ms. Coombs’ house. Mr. Harrison took a picture of the injury to his head and then chased Michael Harrison, who yelled that Ms. Coombs should let him in. Mr. Harrison forced his way into the house. Witnesses said they saw a firearm in his hand. Mr. Harrison followed his father into the house, found him, and shot him 5 times. Ms. Coombs was on the phone to 911 at the time and the recording picked up the sound of 5 gunshots. Mr. Harrison tried to show his grandmother what his father had done to him.

[4] An ambulance arrived on scene and transported Michael Harrison to the hospital. He was “vital signs absent” while in the ambulance. The paramedics had to resuscitate him. Michael Harrison was in critical condition and required several surgeries. He spent months in hospital and a rehabilitative centre.

[5] The police found five shell casings at the scene. They issued a warrant for the arrest of Mr. Harrison. Mr. Harrison turned himself into police on May 18, 2021.

Circumstances Of The Offender

[6] An Enhanced Pre-sentence Report (also known as an EPSR or a “Morris” report) was ordered for Mr. Harrison. Jacquie Pemberton, a social worker, completed the report. As I recently noted in R. v. Jones, 2024 ONSC 3181:

As the EPSR shows, a person is more than just the crime that they have committed and the criminal record they have accumulated. EPSR’s are an effort to make that point. In addition to a more in depth look at the individual offender, the social context of the offender can provide valuable insight into the factors that have shaped him or her. Those factors may be a mitigating factor and may lessen the moral blameworthiness of the offender: R. v. Morris, 2021 ONCA 680.

[7] Unfortunately, the EPSR took a great deal of time. That is not Ms. Pemberton’s fault but reflects the fact that these EPSRs are in demand, there are few writers, and there is a significant backlog. The EPSR was ordered on April 12, 2023, with the anticipation it could be ready in a few months. On July 10, 2023, counsel for Mr. Harrison reported to the court that funding had been secured. Counsel was cautiously optimistic that sentencing could take place in September 2023. In September counsel informed the court that a social worker had not yet been assigned to write the report but that there would be an update in January. In January counsel reported that a social worker still had not been assigned. I asked someone from the sentencing and parole project to appear the next time to provide an explanation for the lengthy period the report was taking. No one did at the next appearance. Counsel was finally able to report on April 16, 2024, a year after the plea was entered, that the report had been done but only needed to be finalized. Sentencing was finally held on May 27, 2024, more than a year after the plea was entered. Respectfully, and without being critical of anyone, this kind of delay is simply unacceptable. Mr. Harrison sat in a remand facility for more than a year while everyone waited for the EPSR. The value of the EPSR is greatly diminished when it simply takes too long. The delay is something that I will take into account, as I will explain: R. v. Hartling, 2020 ONCA 243.

[8] Mr. Harrison was born and raised in Toronto. He was born on August 12, 1992. He has four children and is single. The relationship between his parents ended over Michael Harrison’s consumption of drugs and alcohol. His mother has two other children with different partners. She balanced raising her children, attending school, and working while Mr. Harrison was younger. She used her sister and Ms. Coomb’s, Mr. Harrison’s paternal grandmother, to help care for him. Mr. Harrison felt that his mother did not live a stable life and they moved around quite a bit. His older sister Latisha – with whom he appears to have a good relationship – confirmed that information.

[9] Mr. Harrison grew up as a low-income person. He and his mother and siblings lived in low-income neighbourhoods. His mother struggled to afford basic necessities. His mother did not always have stable employment. Ms. Coombs would sometimes help. The neighbourhoods often had a lot of gang activity, violence, crime, and a heavy police presence. These neighbourhoods were predominantly Black. His grandmother lived in a nicer neighbourhood and when he lived with her, he had a more comfortable existence. The neighbourhood that his grandmother lived in was also more diverse. He reported that his friends were mostly white. He had Black peers, but he found that he was often accused of being “whitewashed”.

[10] Mr. Harrison also reported frequent encounters with police. He believes that he was unfairly judged because he lived in a poor neighbourhood and was a young black man. He reported that he was beaten by the police on two occasions and as a result is fearful of the police.

[11] Mr. Harrison attended several different schools. He felt that at times he was unfairly treated because he was a Black student. His education appears to have been very unstable. According to the EPSR, Mr. Harrison attended five different high schools and ultimately did not graduate. He had academic difficulties. He was also required to take care of his young children. As a result, he was unable to fully devote himself to schooling. He did manage to complete his high school credits while in custody. Mr. Harrison had several part time jobs and worked with a family friend in demolition and construction for two years. He was able eventually to secure full-time work at a factory job where he was well-paid and worked 12-hour shifts. Unfortunately, he lost his job when he surrendered on this offence.

[12] Mr. Harrison reported that he went to live with his grandmother full-time when he was 10. His mother said it was when he was 13 or 14. He resented his mother for her inability to care for him. He described his grandmother as a good caregiver but also called her “miserable”, “stern”, and having a “strong personality.” His time with his grandmother was stable, but he was asked to leave from time to time due to family discord. His cousins, who also lived with Ms. Coombs, agreed with Mr. Harrison’s assessment of her. They also believed that Michael Harrison, Mr. Harrison’s father, was a disruptive person. Michael Harrison spent a lot of time in custody while Mr. Harrison resided with Ms. Combs. I note that Michael Harrison is the uncle of Mr. Harrison’s cousins.

[13] Mr. Harrison reported that when he became an older teenager there was discord between him and his father. They had physical conflicts that escalated when he was in his 20’s. He believed that his father stole money from him to buy drugs. The conflicts occurred when Michael Harrison was under the influence of drugs and alcohol. His grandmother usually kicked him out, rather than his father, during these conflicts. His cousins and his sister both described Mr. Harrison as a person who avoids conflicts. They all believe that Michael Harrison’s drug and alcohol problems were a major source of the problem – and that Ms. Combs’ siding with her son against her grandson exacerbated the problems. Ms. Lisle, the mother of two of Mr. Harrison’s two children, confirmed some of this information. She also added that Mr. Harrison – who became a father at age 16 – is a very good father and involved with the children. Mr. Harrison expressed regret that because of incarceration he cannot be there for his children.

[14] The various family members interviewed for the EPSR were shocked to learn what had happened. None believed that it was in character for Mr. Harrison. I think it is worth including what Mr. Harrison told Ms. Pemberton for the EPSR:

On May 16, 2021, Terrell shot his father in his grandmother’s kitchen as a result of a dispute between them. Terrell reported that when he encountered his father near his grandmother’s home he was intoxicated. Terrell stated that his father yelled at him and proceeded to hit him in the head with a bag that had a bottle inside. Being struck in this manner caused injury to Terrell’s head. Terrell admitted that being hit by his father was the action that “ took him over the edge ” and escalated their conflict.

When asked if he could have done anything differently, Terrell expressed: “ I should have just gone the other way when my dad said those first words to me ”. Terrell also explained that he particular day, Terrell did not “ back down ” from his father and wanted to express how he felt.

Terrell disclosed that at the conclusion of the incident he knew that he was in trouble. He expressed remorse for his conduct towards his father, how the situation unfolded and “ how far it went ”. Terrell is aware that his father’s outcomes could have been much worse given the number of times that he shot him, and for that he has many regrets.

[15] Mr. Harrison described some of the conditions of incarceration. He has been at the Toronto East Detention Centre for the entirety of his time in custody. He described the conditions as “horrific”. He described lockdowns, and triple bunking. He also believes that most of the inmates are Black. He believes that they are poorly treated because of their race. He described some very negative interactions with correctional officers, but I note that these appear not to have escalated as I was presented with no evidence of institutional misconducts. Mr. Harrison reported to Ms. Pemberton that he reads his Bible every day – he is a religious man – works out with other inmates and has completed all the programming offered by the institution. He has even participated in yoga offered by the jail. He also tries to keep in touch with his family when he is permitted to use the phone.

[16] Mr. Harrison reported to Ms. Pemberton – who found him to be pleasant, forthcoming, and engaging – that he believes that he can avoid further contact with the criminal justice system if he focuses on himself and secures sustainable employment. As Ms. Pemberton put it in the EPSR: “His outcomes are a culmination of high conflict encounters and a poor relationship with his father that led to a very dangerous incident that took place in May 2021. Terrell was thoughtful when he reflected on these experiences, the path these tensions inevitably led him on and the resulting consequences.”

[17] Ms. Pemberton noted research indicating that the absence of a supportive family is a risk factor for involvement in violence. She also noted the poverty and instability that Mr. Harrison experienced is, unfortunately, common for Black and other racialized people. Mr. Harrison experienced this firsthand, often experiencing food insecurity and frequent moving. Ms. Pemberton also noted the frequent encounters with police and poor educational outcomes that are a regrettable feature of the Black experience – a result of concerns about racial bias in both policing and education. Mr. Harrison described experience with both. Mr. Harrison is realistic that he may have trouble obtaining employment when he is released from prison but is hopeful that he will have opportunities – either with his former employer or with his older brother.

Circumstances Of The Victims

[18] Michael Harrison provided a very short victim impact statement. He stated that he did not know what he did to deserve what happened. He also stated:

I want you to know that I still love you, you’re my son. I never expected this. I never wanted this. I never thought that I deserved this or that you deserved any of this.

[19] In her victim impact statement Emily Prince (who I have been referring to as Ms. Combs) described what it was like to watch her son in the hospital. She described how she had to care for him, which she found very difficult. She described how she holds Mr. Harrison responsible for all of her suffering, and the suffering of her son. She also described how she felt betrayed by Mr. Harrison. She looked after him, and did her best for him, and babysat his children. She completed her victim impact statement by stating:

I am not in a winning position in this situation. My hope is that the sentence Terrell receives is to the fullest extent of the law. If Terrell receives any credit for some time he has served in custody during covid or for anything positive he may be doing in custody, I want to ask what would be the credit that Michael would receive for all the damage that has been done to his mind and body?

Legal Parameters

[20] Aggravated assault contrary to s. 268 of the Criminal Code carries a maximum penalty of 14 years in prison. Intentional or reckless discharge of a firearm contrary to s. 244.2 of the Criminal Code also carries a maximum penalty of 14 years. Where a prohibited or restricted firearm is used the minimum penalty is five years for a first offence. The defence did not challenge the constitutionality of the provision. In any event, at least one provincial court of appeal has found the penalty to be constitutional: R. v. Dingwall, 2023 BCCA 16.

Positions Of The Parties

[21] Counsel are not that far apart in terms of the range of sentence that they say applies, although they obviously differ on that sentence. Mr. Aubin submitted a very helpful chart setting out the range of sentence for this type of offence. Ms. Tsigaris for the Crown argued that the range is 7-11 years. She submits that Mr. Harrison should serve a sentence in the range of 9-11 years. Mr. Aubin argued that the appropriate range is between 6 and 10 years and argues that I should impose a sentence of 5 ½ to 6 years, less pre-sentence custody.

[22] The Crown relied on several cases. I will mention some of them.

[23] R. v. Belissimo, 2009 ONCA 49: The offender fired several shots in a restaurant. One victim was seriously injured, one suffered a minor injury, and one shot narrowly missed a victim. The Court of Appeal raised the sentence from an effective sentence of 8 ½ years to ten years. The Court noted that the range of sentence for these kind of serious offences is between seven and eleven years. It is not clear if the offender pleaded guilty or was found guilty after a trial. Mr. Aubin distinguished this case on the basis that it was a shooting in a restaurant, where random members of the public can be found.

[24] R. v. Jefferson, 2014 ONCA 434: The offender walked up to the victim’s vehicle and shot him in the arm. They had a history of animosity. The offender was found guilty after a trial. The trial judge imposed a sentence of 10 years. The Court noted that was within the range of 7-11 years established by R. v. Belissimo, 2009 ONCA 49, supra, and upheld the sentence.

[25] R. v. Stephens, 2024 ONSC 35: The offender was found guilty of two counts of aggravated assault after a trial. The offender was part of a group that was involved in an armed confrontation with another group that included the victims. The main victim was seriously wounded, as were bystanders. The sentencing judge was not satisfied beyond a reasonable doubt that the offender was a principal – he was not one of the shooters – but was guilty as a party. The shooting was part of a coordinated strategy. The moral blameworthiness of the offender was high, even as a party. The sentencing judge imposed a global sentence of 9 years less pre-sentence custody.

[26] R. v. Johnson, 2023 ONSC 5443: The offender was convicted of multiple offences after a jury trial, including discharging a firearm with intent to endanger life. After a road argument, the offender chased the complainant in his vehicle and then shot at him. The offender had a lengthy criminal record including previous firearms offences. The sentencing judge characterized him as a dangerous recidivist who was serving a life sentence on the installment plan. He sentenced the offender to ten years less pre-sentence custody.

[27] R. v. Derby, 2022 ONSC 2266: the offender pleaded guilty to discharge of a firearm with intent to endanger life and associated offences including possession of a handgun and possession in contravention of a court order. The offender fired multiple rounds at the victim. The victim’s car had eight bullet holes in it. The offender had a significant criminal record. The sentencing judge imposed a global sentence of 9 ½ years less pre-sentence custody.

[28] Defence counsel also relied on several cases, of which I will mention only a few.

[29] R. v. Johnston, 2021 ONCA 331, affirming 2020 ONCJ 272: The offender was found guilty after a trial of multiple offences including aggravated assault and pointing a firearm. He was found not guilty of attempted murder. The offender and the victim had an argument when the offender picked up a gun and simply shot the victim. The victim was able to call 911, gather up his cigarettes, and met the paramedics and police outside the building. The offender used the apartment for criminal purposes, including drug trafficking. He had mental health difficulties – he had been diagnosed with either bipolar disorder or schizoaffective disorder. He had a criminal record and was bound by a probation order. The sentencing judge found that after weighing the aggravating and mitigating factors, and especially the offender’s untreated mental health issues, a sentence at the lower end of the Belissimo range was appropriate. He sentenced the offender to a global sentence of 6 ½ years less pre-sentence custody. The Court of Appeal upheld the sentence.

[30] R. v. Reis, 2017 ONSC 1961: the offender and an individual named Tutu were acquaintances. Tutu pointed a firearm at the offender. The offender chased him down. There was a scuffle. The offender seized the firearm and began shooting. He shot another person in the abdomen. Tutu ran away. The offender was found guilty after a trial of various offences including discharging a firearm. The sentencing judge stated that it was only a matter of luck that no one died. The offender had no meaningful criminal record and was youthful. The trial judge imposed a global sentence of six years less pre-sentence custody. He found that the crime was not pre-meditated, and that it was Tutu who brought the gun, not the offender.

[31] R. v. Baugh, Liburd, and Reece, 2021 ONSC 8408: the three accused pleaded guilty to discharging firearms and pointing a firearm in relation to three separate victims. There were multiple shots fired and an element of planning. Reece and Baugh were youthful offenders. Liburd had a criminal record. The sentencing judge sentenced Reece and Baugh to global sentences of 6 years less pre-sentence custody. She also sentenced Liburd to a global sentence of 7 ½ years, less pre-sentence custody.

Mitigating And Aggravating Factors

[32] The chief aggravating factor in this case is the nature of the offence. Mr. Harrison chased down his own father into his own house and shot him five times in front of his grandmother. The crime was life-threatening for his father and traumatizing for his grandmother. No matter the family dysfunction, there was no excuse.

[33] On the other hand, there are several mitigating factors. Mr. Harrison had a difficult and unstable childhood. His childhood featured poverty, food insecurity, and housing instability during his younger years. His periods of stability were in the home of his grandmother, who by all accounts was a difficult person notwithstanding that she could provide a measure of material comfort. Even then there was instability when he was with his grandmother. His father was a rare influence, and when he was around, he was a negative influence. His family situation contributed to the dysfunction and tension that led to this crime. I find that there is a connection between the family circumstances – which were influenced by structural racism – and Mr. Harrison’s actions: R. v. Morris, 2021 ONCA 680, supra. There is every reason to believe that if Mr. Harrison had had a more stable upbringing with a more stable family situation, he simply would have lived a normal, law-abiding life and this never would have happened.

[34] It is also mitigating that Mr. Harrison pleaded guilty and apologized to the court and to his family. Mr. Harrison’s guilty plea spared the state the resources required to put him on trial and saved valuable court time.

[35] Mr. Harrison’s apology is also mitigating. I read it very carefully. In his apology he expressed great regret towards what he had done to his father and his grandmother, and his family generally. I accept it as sincere, as it is in keeping with the description of his character by the members of his family who were interviewed for the EPSR. I give the apology significant weight.

[36] The harsh conditions of custody faced by Mr. Harrison at the Toronto East Detention Centre are also a mitigating factor, but I will deal with them below.

Principles Of Sentencing And Sentence Imposed

[37] The most important sentencing principle is that a sentence must be proportionate to the gravity of the offence and the blameworthiness of the offender: Criminal Code, s. 718.1. General deterrence and denunciation are to be given paramount weight when sentencing an accused person who fires several shots at the victim: R. v. Bellissimo, 2009 ONCA 49, supra, at para. 5. I agree, but I also find that Mr. Harrison is an excellent candidate for rehabilitation. He did not, as I will point out in a moment, live a criminal lifestyle before this offence. He was working full-time and providing for his family. I am confident that he can have a pro-social life when he completes his sentence, and I am confident that he will not take up a criminal lifestyle when he completes his sentence. Sentencing is, of course, an individualized process. A fit sentence must balance all the sentencing principles.

[38] As I said, I think it is very important to note that Mr. Harrison is different from many of the other young men who some before the courts and are facing long sentences. Mr. Harrison has a very limited and dated criminal record. He has two convictions from 2014 for obstructing a peace officer. He received a suspended sentence and probation for each offence. He also has a conviction for fail to attend court from 2015 for which he received a $20 fine. What is clear from the EPSR, and the limited criminal record, is that Mr. Harrison does not live, and apparently has never lived, a criminal lifestyle. He has not been in and out of jail. Criminality has not been the defining feature of his life. In my view, this offence was out of character, although there are some lingering questions – for example, where did he get the gun? Mr. Aubin suggested that it is possible that the gun came from Michael Harrison. That is possible, and not entirely out of keeping with Michael Harrison’s criminal past. It seems odd that Mr. Harrison would have had a gun – at the time of the offence had a full-time job and as I say was not living a criminal lifestyle. There is, however, no evidence that the gun belonged to Michael Harrison. At the end of the day, I simply do not have the answer to that question.

[39] Notwithstanding questions about the gun, I find Mr. Harrison be a sympathetic figure. His father and grandmother, less so. His father, is of course, the chief victim but it seems he did a fair bit of victimizing of his own son – according not only to Mr. Harrison but also according to his cousins. That, of course, in no way justifies Mr. Harrison’s actions. I do not doubt that resentment, anger, and tension built up between father and son and contributed to this offence. There is some evidence of pre-meditation – again, where did the gun come from? – but I find that was a result of many years of tension and resentment, that boiled over into an uncharacteristic violent reaction. There was also an element of provocation – Michael Harrison struck Mr. Harrison over the head with some kind of weapon prior to the shooting. Mr. Harrison’s moral blameworthiness is very high, but I do not think it is as high as, for example, the offenders in Jefferson, Belissimo, Stephens, Derby, and Johnson, the main cases relied on by the Crown. Those cases involved individuals who were essentially lawless, involved in criminal activity, were unprovoked, and completely careless about who they shot.

[40] I was taken aback by Mr. Harrison’s grandmother’s statement that she wanted her grandson punished to the fullest extent of the law. In my experience, that attitude is very rare for a family member – Ms. Combs did not express any view about Mr. Harrison’s prospects for rehabilitation or his moral blameworthiness. She just seemed to want a harsh punishment for her grandson. That accords with the evaluation of her relatives that she is a miserable person. It also contrasts with Michael Harrison’s forgiving expression towards his son – that he still loves his son despite what happened. I can only imagine that it was hardly a picnic for Mr. Harrison in that house. As a very young person he had his difficult grandmother, who seemed to prefer her criminal son to her very young grandson and even kicked him out from time to time when there was conflict.

[41] After reviewing the cases I agree with Crown counsel that the appropriate range of sentence for this offence is 7 to 11 years. I put Mr. Harrison at the very low end of that range. Given his moral blameworthiness, his prospects of rehabilitation, and the purposes and principles of sentencing, especially deterrence and denunciation, I find that a sentence of seven years less pre-sentence custody is appropriate.

[42] As of today, Mr. Harrison has been in custody since May 18, 2021, or just over three years. That amounts to 1114 real days in custody, or 1671 enhanced days at 1.5:1: R. v. Summers, 2014 SCC 26; Criminal Code, s. 719(3.2). That works out to just under 56 months, or about 4 years and 8 months.

[43] As the Court of Appeal did in Hartling, I am also of the view that Mr. Harrison should receive credit for the unconscionably lengthy period it took to obtain the EPSR. I also take into account the harsh conditions of custody. The lockdown records from the Toronto East Detention Centre indicate that Mr. Harrison was triple bunked for 39 nights. Triple bunking is one of the most difficult ways that an inmate can be housed. There is little room in the cell. One inmate sleeps on the cold floor with his head near the toilet.

[44] Mr. Harrison was also on droplet protection for three periods in 2021 and 2022. During these periods inmates are unable to move freely throughout the institution and have limited access to showers, phones, and fresh clothing. He was subject to full day lockdowns on 11 occasions, and partial lockdowns on 78 occasions. Mr. Harrison was placed in a dorm – a lower security environment that, as I understand it, is less affected by lockdowns. He was placed there from August 19, 2023. I believe he is still there. That ameliorates, somewhat, the harsh conditions of custody, but I am also aware from other cases that only model prisoners who have done well in the institution reside there.

[45] When I consider the harsh conditions of custody, the Summers credit, and an appropriate credit for both harsh conditions and the time it took to obtain the EPSR I find that Mr. Harrison should be credited with the equivalent of 5 years and 6 months in custody. This reflects treating the harsh conditions as a mitigating factor, rather than simply counting days: R. v. Duncan, 2016 ONCA 754; R. v. Marshall, 2021 ONCA 344.

[46] Mr. Harrison is therefore sentenced to seven years in custody, concurrent on both counts, with 18 months left to serve after credit.

[47] The warrant of committal will reflect the following:

• Aggravated assault: 7 years, with credit for pre-sentence custody of 5 years, 6 months, 18 months left to serve.
• Discharge firearm: 7 years, with credit for pre-sentence custody of 5 years, 6 months, 18 months left to serve.

[48] There will be a DNA order and a s. 109 order for life on both counts.

R.F. Goldstein J.

Released: June 11, 2024