Court of Appeal for Ontario

Date: 2021-01-11 Docket: C66041

Judges: MacPherson, Tulloch and Lauwers JJ.A.

Between: Her Majesty the Queen Respondent

And: Boris Rajkovic Appellant

Counsel: Anthony Marchetti, for the appellant Natalya Odorico, for the respondent

Heard: December 17, 2020 by video conference

On appeal from the sentence imposed by Justice Faye E. McWatt of the Superior Court of Justice on March 29, 2018, with reasons reported at 2018 ONSC 1501.

MacPherson J.A.:

A. Introduction

[1] The appellant, Boris Rajkovic, pleaded guilty to six offences relating to a kidnapping of a bank employee and a failed bank robbery that ended in a shootout with police in which he was shot twice in the stomach.

[2] The sentencing judge imposed a global sentence of 13 years in jail. She gave the appellant credit for pre-sentence custody and onerous pre-trial lockdown conditions totalling three years and seven months, leaving a remaining sentence of nine years and five months.

[3] The appellant appeals the sentence. He challenges both the global sentence and the credit components of the sentence.

B. Facts

(1) The parties and events

[4] The sentence hearing took six days. On the first day of the hearing, the following statement of facts was read into the record:

On Saturday, February 20th, 2016, at approximately 7:00 a.m. Justine King was leaving her residence to go to work. Ms. King at the time was employed as a customer service representative with the Toronto Dominion Bank located at 1315 the Queensway in the city of Toronto.

Upon getting into her vehicle an unidentified suspect approached Ms. King wearing a police hat and identified himself as a police officer. The unidentified suspect advised Ms. King that he was an undercover officer and that he was conducting an investigation in the area. As he did so the accused, Mr. Rajkovic, approached the passenger side and got into Ms. King’s vehicle wearing a face mask in an attempt to conceal his identity.

He then produced a firearm and showed it to Ms. King and ordered her to drive to her place of employment. He further advised Ms. King that if she didn't comply with his demands, he would kill her and her family and burn her house down.

Ms. King complied with his demands and began driving to her place of employment followed by an unknown silver vehicle.

The entire incident was captured on a nearby surveillance video system from a residence.

While on route to the bank Ms. King was holding her cellular phone. The accused ripped the phone from her hand at which point she advised the accused that one of her co-workers would be expecting her call. She was then ordered by the accused to call her co-worker and advise them that she would be bringing a trainee with her to the bank.

Ms. King complied with the accused demand, called her co-worker, Ms. Carly Tullo, and advised her accordingly.

While travelling to the bank, the accused was in possession of a two-way radio in which he would keep contact – through which, pardon me, he would keep contact with an unknown male believed to be the unidentified suspect who had initially approached Ms. King in her vehicle.

At approximately 7:30 a.m. the accused and Ms. King arrived at the bank. Upon arriving they were met by Ms. Tullo. All three parties entered the bank where the accused ordered them to disarm the alarm and open the vault; he did so at gun point.

Upon doing so the duress code alarm was activated and police were notified. Dispatched police officers attended the scene. Prior to the police arriving the accused was advised by his accomplice via the two-way radio that the police were on their way.

The accused obtained a quantity of cash from the vault and exited the bank. Prior to exiting the bank he threatened to kill both Ms. King and Ms. Tullo for tripping the hold up alarm. Upon exiting the bank he observed police arriving on scene and as a result went back inside.

The attending officers subsequently contained the scene. Shortly thereafter the accused emerged from the southwest emergency exit of the bank holding both Ms. King and Ms. Tullo hostage. The accused held Ms. Tullo with his forearm around her throat and his gun pointed at her head. He then led both parties, Ms. King and Ms. Tullo, toward Ms. King’s vehicle, where he had planned to make good his escape.

Upon arriving at the vehicle, the accused let go of Ms. King and Ms. Tullo at which point they both ran towards nearby officers. The accused then pointed his gun towards the officers and discharged his firearm. As he did so responding officers returned fire and Mr. Rajkovic was struck once.

[Crown counsel]: Pardon me, my friend says twice. We’ll satisfy that fact. He was subsequently placed under arrest and transported to St. Michael's Hospital for treatment for what was determined to be a non-life threatening injury.

At the time of his arrest a black semi-automatic American arms .22-caliber handgun was recovered. The handgun was obviously loaded. Also recovered at the scene was a large canister of pepper spray and a folding knife. Those are the facts relied upon by the Crown.

[5] When the appellant was asked if he adopted this statement of facts, he quarrelled with only one point:

[The accused]: While … exiting the bank with hostages, I didn’t put a gun to anybody’s head.

Defence counsel: You – I take it you used them as human shields while carrying a gun?

[The accused]: No, I didn’t use them as a shield. I tried to escape while having them close to me. I knew I wasn’t going to receive any fire from the police.

(2) The sentence

[6] The Crown position at the sentence hearing was 20 years’ incarceration, reduced to 15 years based on the totality principle. The defence position was eight years’ incarceration less enhanced credit for pre-trial custody. By the time he was sentenced, the appellant had been in custody for two years and one month. The parties agreed that the appellant should receive credit of three years and two months for this period of custody.

[7] The sentencing judge imposed a global custodial sentence of 13 years, broken down as follows:

• Kidnapping with a prohibited firearm – 8 years
• Robbery with a prohibited firearm – 8 years (concurrent)
• Discharge prohibited firearm with intent to resist arrest – 5 years (consecutive)
• Unauthorized possession of a loaded prohibited firearm – 3 years (concurrent)
• Possession of a prohibited firearm – 1 year (concurrent)
• Uttering death threats – 1 year (concurrent)

[8] The sentencing judge then deducted two periods of time from this global sentence. Pursuant to R. v. Summers, 2014 SCC 26, she applied a 1.5:1 ratio and reduced the sentence by three years and two months for pre-trial custody. Pursuant to R. v. Duncan, 2016 ONCA 754, she applied a 0.5:1 ratio and further reduced the sentence by five months for harsh lockdown conditions in pre-trial custody. These two reductions left a remaining sentence to serve of nine years and five months.

[9] The sentencing judge refused to give any credit for the appellant’s allegation that he received poor medical care while he was in pre-trial custody.

[10] The appellant appeals the sentence.

C. Issues

[11] The appellant advances three grounds of appeal:

1. The sentencing judge imposed an unfit sentence outside the range for these offences;
2. The sentencing judge erred by imposing a consecutive sentence for the discharge firearm offence; and
3. The sentencing judge erred by not giving sufficient credit for the conditions of his pre-trial custody at Toronto South Detention Centre.

D. Analysis

(1) The unfit sentence issue

[12] The appellant submits that a global sentence of 13 years for these offences was “crushing” and, therefore, unfit. He asserts that, based on comparable cases, the maximum sentence should have been ten years.

[13] I do not agree. The constellation of offences in this case is both numerous (six) and serious, involving exceptionally troubling criminal activity. The sentencing judge succinctly and accurately described the appellant's carefully planned, methodical and cruel criminal activity:

He kidnapped a member of the public at her home, continued on to her place of employment and kidnapped another civilian employee of the bank. He brandished a loaded firearm and threatened their lives and their family members. He stole $65,000 and used his hostages as human shields. He was then prepared to kill a policeman to make good his escape. It could not have got worse than these set of facts unless someone, indeed, died.

[14] I also observe that three of the offences the appellant committed have mandatory minimum sentences of five years.

[15] Finally, one of the offences the appellant committed – discharge firearm to resist arrest – warrants a very strong sanction. As Doherty J.A. said in R. v. McArthur (2004), 182 C.C.C. (3d) 230, at para 49:

[T]he maintenance of a just, peaceful and safe society is the fundamental purpose of sentencing. Police officers play a unique and crucial role in promoting and preserving a just, peaceful and safe society. We rely on the police to put themselves in harm's way to protect the community from the criminal element. At the same time, we rely on the police to act with restraint in the execution of their duties and to avoid the use of any force, much less deadly force, unless clearly necessary. Violent attacks upon police officers who are doing their duty are attacks on the rule of law and on the safety and well-being of the community as a whole. Sentences imposed for those attacks must reflect the vulnerability of the police officers, society's dependence on the police, and society's determination to avoid a policing mentality which invites easy resort to violence in the execution of the policing function. [Citation omitted.]

[16] For these reasons, I conclude that the global sentence of 13 years for the appellant's six serious criminal offences was fit.

(2) The consecutive v. concurrent issue

[17] The appellant contends that the sentencing judge erred by imposing a consecutive sentence of five years for the offence of discharging a firearm to resist arrest. He says that this offence formed part of a continuous chain of events with other offences; there was no significant break in time and place between the bank robbery and discharge firearm to resist arrest offences.

[18] For three reasons, I do not accept this submission.

[19] First, the sentencing judge’s decision in the realm of imposing consecutive and concurrent sentences is entitled to considerable deference: R. v. McDonnell, [1997] 1 S.C.R. 948, at para. 46; R. v. Sadikov, 2018 ONCA 609, at para. 16.

[20] Second, on the merits, I can see no error in the sentencing judge’s assignment of the discharge firearm to resist offence to a different category than the bank robbery offences. As I noted earlier, the discharge firearm to resist arrest warrants a very strong sanction. Moreover, at least arguably, the appellant may have caught a break when the sentencing judge did not impose a consecutive sentence for the kidnapping but assigned the kidnapping offence to the bank robbery offences.

[21] Third, the appellant’s submission on this issue makes no practical difference. Since I have determined that a global sentence of 13 years for the six offences committed by the appellant is a fit sentence, the breakdown of the time assigned to each of the offences is of no moment.

(3) The enhanced credit for medical care in custody issue

[22] The appellant asserts that, although the sentencing judge properly gave Summers and Duncan credit for his pre-trial custody, she erred by not giving additional credit for poor medical treatment he received at Toronto South Detention Centre. Once again, as at the sentence hearing, the appellant relies only on his affidavit and viva voce testimony at the sentence hearing to support his claim.

[23] The sentencing judge carefully considered, and rejected, this component of the appellant’s claim for credit for various aspects of his pre-sentence custody. She said:

The medical records from the detention centre were filed as exhibits and were put to Mr. Rajkovic by the Crown in cross-examination. The records did not support any inference that Mr. Rajkovic was transferred out of the medical unit because of space issues. In fact, the records disclosed that it was the opinion of the doctor in the unit that the defendant was fit for discharge and for transfer to the general prison population. The records also supported the fact that, after his transfer, the defendant was seen daily by medical staff to monitor his wound. The dressing was changed every day for two months after the transfer. He was operated on for the hernia in April of 2016. In a record from the surgeon, the doctor indicated that hernias after the type of surgery Mr. Rajkovic had undergone, were not uncommon. In other words, there is no medical evidence that an assault in the general population, although unfortunate, caused Mr. Rajkovic’s hernia.

I am not prepared to give Mr. Rajkovic any presentence credit for any allegation of less than standard medical care at the detention centre. The medical records do not support it.

[24] I see no basis for interfering with this analysis and conclusion.

E. Disposition

[25] I would dismiss the appeal.

Released: “JCM” JAN 11 2021

“J.C. MacPherson J.A.”

“I agree. M. Tulloch J.A.”

“I agree. P. Lauwers J.A.”