Court of Appeal for Ontario

CITATION: R. v. Bebee, 2021 ONCA 33

DATE: 20210118

DOCKET: C68499

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Bebee

Appellant

Counsel:

Michael Bebee, acting in person

Nicole Rivers, for the respondent

Dan Stein, appearing as duty counsel

Heard: January 11, 2021 by video conference

On appeal from the sentence imposed on July 3, 2020 by Justice Riun Shandler of the Ontario Court of Justice.

REASONS FOR DECISION

[1] At the conclusion of oral submissions, we advised that we would allow the sentence appeal and vary the sentence from four years to one of three and a half years with reasons to follow. These are those reasons.

Facts

[2] On January 2, 2020, the appellant pleaded guilty to possession of a loaded restricted firearm and possession of a restricted firearm knowing possession is unauthorized. He seeks to appeal his sentence of four years less a total credit of 844 days for pre-sentence custody, resulting in a net sentence of 616 days.

[3] The convictions arose out of an incident that occurred on May 11, 2019. On that day, the appellant entered a sports bar in Toronto with a friend. At that time, there were a lot of people in the area surrounding the bar. While at the bar, the appellant and his friend had an exchange with another individual. The individual then left the bar. The appellant and his friend soon left the bar as well and walked through the parking lot to a side street. The individual from the bar shot at them from a laneway behind the bar. The appellant then pulled out his handgun and retaliated, firing three times. He then began running away but turned back to fire one more shot before fleeing the scene.

[4] On June 5, 2019, approximately one month after the incident, the appellant surrendered to the police.

Sentencing Reasons

[5] In his reasons, the sentencing judge noted the seriousness of the offences, indicating that the appellant’s conduct posed a very real and immediate danger to the public. In that regard, he opined that the principles of deterrence and denunciation were paramount in sentencing the appellant.

[6] The sentencing judge considered the Gladue Report regarding the appellant’s Aboriginal status and the psychiatric report of an expert with respect to the appellant’s post-traumatic stress disorder (“PTSD”). The sentencing judge also recognized various background factors that may have played a part in the appellant’s offending, including the separation of his parents due to his father’s substance abuse and physical abuse of his mother, his experience of gratuitous abuse from his stepmother, and his experience of racism in school. The sentencing judge also accepted that the appellant was now committed to a “different lifestyle” and that this has been demonstrated by his significant efforts since being incarcerated. This was further confirmed by the appellant and duty counsel in oral submissions on appeal.

Issues

[7] The appellant argues that the sentencing judge erred in his assessment of the expert’s report and the role that the appellant’s PTSD played in the commission of the offences. Further, the appellant contends that the sentencing judge failed to properly apply the Gladue factors. According to the appellant, these errors resulted in an unfit sentence.

Analysis

[8] The expert’s report regarding the appellant’s PTSD referenced a number of significant incidents. The first occurred in 2007, when the appellant claimed he was assaulted by a large group of police officers in a case of mistaken identity. Charges were laid but the appellant was later acquitted. That incident led to the appellant’s hospitalization for a series of injuries to his chest, ribs, nose, and knees. In 2014, just prior to participating as a kickboxer in a televised sporting event, the appellant fell victim to a serious stabbing that occurred at a party. He was stabbed over 11 times in his arms, upper torso, and legs, requiring multiple surgeries and a lengthy recuperation during which he used a wheelchair for several months. Finally, in 2018, the appellant was the victim in a shooting, having suffered gunshot wounds in both feet resulting in serious damage to one foot.

[9] In his report, the expert explained that following the first incident in 2007, the appellant suffered PTSD, which was exacerbated by the incidents of 2014 and 2018. For a period, he began abusing drugs and alcohol. The expert went on to explain the link between the PTSD and the offending conduct.

[10] While considering this evidence, the sentencing judge noted that the basis for the expert’s conclusions remains unclear, because of apparent inconsistencies as to when the PTSD first arose and conflicting accounts as to the appellant’s purchase of the firearm. Further, the sentencing judge noted that the appellant did engage in treatment for his PTSD. In any event, while sympathetic to the appellant, the sentencing judge rejected any notion that purchasing a firearm illegally is an appropriate means of self-protection.

[11] We agree with the sentencing judge and the Crown that the significant traumas suffered by the appellant and the PTSD that resulted do not justify the appellant’s purchase of an illegal firearm and his subsequent conduct. However, the traumas and PTSD were important factors to weigh in fashioning an appropriate sentence.

[12] In our view, the sentencing judge erred in his assessment of the expert’s report. Although there were minor inconsistencies in his report, the basis for his conclusions were well supported. Further, the report was not tendered to somehow endorse the appellant’s acquisition and use of the firearm. Rather, the expert provided an opinion about the role that the PTSD played in the appellant’s commission of the offences. It was relevant both to the circumstances of the offences and the rehabilitation prospects of the appellant.

[13] Giving the expert’s evidence appropriate weight and taking into account the Gladue Report and other background factors that apply to the appellant, including his guilty plea, and considering that the appellant appears to be continuing to progress well while in custody, we are of the view that the appropriate sentence is one of three and a half years in custody.

Disposition

[14] As a result, in this somewhat exceptional case, we grant leave to appeal the sentence and vary the sentence from 4 years to one of 3.5 years, which, after taking into account the credit of 844 days for pre-sentence custody, results in a net sentence of 433 days.

“Paul Rouleau J.A.”

“K. van Rensburg J.A.”

“B.W. Miller J.A.”