Court of Appeal for Ontario
Date: 20210705 Docket: C69106
Simmons, Gillese and Huscroft JJ.A.
Between
Her Majesty the Queen Respondent
and
Justin James Fabbro Appellant
Counsel: Donald Orazietti, for the appellant Adam Wheeler, for the respondent
Heard: May 26, 2021 by video conference
On appeal from the sentence imposed on February 12, 2021, by Justice John P. Condon of the Ontario Court of Justice.
Gillese J.A. :
[1] This appeal exposes the ongoing challenges for sentencing judges arising from the opiate scourge in our province.
I. Overview
[2] Justin James Fabbro, the appellant, comes before this court because of an incident that took place on January 20, 2019, in Sault Ste. Marie, Ontario. He was 36 years old at that time and in the throes of a heroin addiction. His domestic situation had broken down. He wanted to end his life.
[3] The appellant’s addiction started when he was overprescribed Percocet and OxyContin [1] at age 25, following a boating accident. Later, he had surgery on his shoulder and knees. After four or five years of taking pain medication, the doctors would no longer prescribe them and he began buying drugs on the street.
[4] The appellant also suffered from serious unresolved trauma arising from three events. In the year before the boating accident: he found the body of a neighbor who had committed suicide by hanging; he saw a friend decapitated in front of him; and, he saw a snowmobiler go over a cliff. His resulting grief and trauma issues had not been addressed.
[5] In the month leading up to the incident, the appellant went to the Sault Area Hospital on three occasions to get medical help for suicidal ideation but was sent away each time. Two earlier visits to the hospital had also been unsuccessful.
[6] Just before 10:00 a.m. on the day of the incident, the police received information that the appellant had been seen leaving a residence with a gun and that he might harm himself. At the time, the appellant was wanted on a surety revocation warrant related to outstanding firearm charges. He was also bound by a recognizance not to possess firearms.
[7] Shortly after receiving the call, the police located the appellant, who was driving a truck. They initiated a traffic stop. The appellant pulled into the driveway of a residence with which he had no connection and put a shotgun in his mouth. The police officer on the scene called for backup. More police officers, the Emergency Services Unit, and a negotiator arrived on the scene.
[8] The appellant spoke to the police officers. He was emotional and upset. He repeatedly said that he did not want to hurt the police or anyone else, only himself. He also said he had a tough life, was still using heroin but wanted to stop, did not want to go to jail, and did not know if he wanted to live.
[9] While negotiations with the appellant were taking place, the occupants in the residence were evacuated.
[10] After a standoff of several hours, the appellant threw the gun out of the passenger-side window and got out of the truck. The gun had been sawed off. It was not loaded but it was capable of firing. He was arrested and taken to hospital where he was admitted pursuant to the Mental Health Act, R.S.O. 1990, c. M.7.
[11] The appellant was eventually released on bail and undertook sustained, significant steps to address his substance addiction and mental health challenges. Those steps included: attending and successfully completing a residential treatment program; enrolling in another such program and attending until it was shut down due to COVID-19; participating in the methadone program at the addiction treatment centre in Sault Ste. Marie; and, being under the care of a psychiatrist to address his addiction and the root issues that were affecting his mental health.
[12] As a result of the incident, the appellant was charged with carrying a weapon for a purpose dangerous to the public peace (“Count 1”). Later, he was charged with: possessing a prohibited firearm with readily accessible ammunition while not being the holder of a license; while on recognizance, failing without lawful excuse to comply with the condition that he not possess any weapons; and, having a sawed-off shotgun in his possession while prohibited from doing so under a recognizance.
[13] The appellant pleaded guilty to the offences and was sentenced to two years less a day in prison, followed by three years of probation. Several ancillary orders were also made.
[14] The sentencing judge acknowledged that the appellant was suffering from compromised mental health and a drug addiction at the time of the incident and had since “chosen a path of significant rehabilitation”. He described the incident as the “catalyst for an awakening or intervention … causing the pursuit of a course of rehabilitation and reformation”. However, because the incident involved a firearm – in particular, a sawed-off shotgun – he viewed the primary sentencing principles to be denunciation and deterrence.
[15] The sentencing judge also acknowledged that the appellant had pleaded guilty and expressed remorse. Further, he found that, during the incident, the appellant never threatened harm against anyone but himself and his actions were consistent with that. As well, the trial judge observed that the appellant had been on strict bail conditions for over two years following the incident and there had been no breaches in that time.
[16] On appeal, the appellant submits that the sentence is demonstrably unfit. He does not appeal the conditions of probation or the ancillary orders.
[17] For the reasons that follow, I would allow the appeal and substitute a conditional sentence on the terms that the parties have agreed to.
II. The Issues
[18] The appellant argues that the sentence is demonstrably unfit because the sentencing judge:
- placed undue emphasis on the principle of protection of society;
- failed to award Downes [2] credit for time he spent under house arrest; and,
- erred by not imposing a conditional sentence due to the appellant’s mental health.
III. Analysis
[19] Sentencing judges are in the best position to determine just and appropriate sentences and are entitled to considerable deference: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41. Appellate intervention is warranted in only two situations. First, where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and the error had an impact on the sentence: Lacasse, at para. 44. Second, where the sentence is demonstrably unfit: Lacasse, at para. 51. In either situation, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in all the circumstances.
[20] In my view, the sentencing judge erred in principle in two regards. First, he failed to consider a relevant factor, which led to an undue emphasis on the principles of denunciation and deterrence. Second, he failed to consider whether there was a causal link between the appellant’s mental health condition and his criminal conduct when deciding whether a conditional sentence was warranted. As both errors had an impact on the sentence, in my view, it falls to this court to conduct its own analysis and determine a fit sentence.
[21] In terms of the first error, the sentencing judge pointed to this court’s jurisprudence to conclude that, because the offences involved firearms, the primary sentencing principles were denunciation and deterrence. In my view, this fails to take into consideration the relevant fact that the appellant had the gun because he intended to use it to commit suicide. In Canada, it is not an offence to commit suicide or attempt to commit suicide. The appellant’s offence was that he was carrying a weapon for a purpose dangerous to the public peace.
[22] There can be no doubt that when a person carries a firearm, there is always the potential for danger to the public. However, the danger was much attenuated in the circumstances of the present case: the shotgun was not loaded (although the appellant had ammunition nearby); the appellant said he was not going to hurt anyone other than himself and the trial judge found that “his actions [were] consistent” with that; and, the officers at the scene indicated they did not feel any direct threat against them.
[23] The appellant had the gun because he intended to use it to commit suicide. An act of attempted suicide is the ultimate plea for help. It does not cry out for a denunciatory sentence. This consideration, coupled with the much-attenuated danger to the public, leads me to conclude that the primary sentencing principles in this case are not limited to denunciation and deterrence – they include rehabilitation. This view finds support in the second pre-sentence report where the author provides this assessment:
If we remove the weapon from the equation of the offence we are dealing with a young man with undiagnosed/untreated mental health issues combined with substance addiction … [H]is intent was not to harm anyone other than himself, numerous times he expressed attempts to seek help through the hospital and being turned away. In dealing with the offender’s mental health and continued abstinence of substance use the risk to further self-harm to himself and collateral harm to the community is very minimal at best.
Continued involvement with professional services, abstinence, and community supports will even lessen the risk of the offender contemplating self-harm in the future.
The offender has proven for the past 10 months that with community and family supports he is capable of being a productive member of the community.
[24] In terms of the second error, the Crown submits that the evidence did not indicate a causal link between the appellant’s mental state and the offences. It argues that there was no evidence the appellant was experiencing a delusion or in a mental state that rendered him incapable of appreciating the consequences of his actions. “He did not challenge his criminal responsibility or mental capacity at sentencing.”
[25] Respectfully, the Crown’s argument misses the point. The question is not whether the appellant was suffering from delusions or a mental disorder. For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds. See R. v. Megill, 2021 ONCA 253, at para. 171; R. v. Hart, 2015 ONCA 480, at para. 6; and R. v. Pioriello, 2012 ONCA 63, 288 O.A.C. 198, at paras. 11-12. In Hart, on a Crown appeal, this court upheld the conditional sentence imposed by the trial judge where the mitigating factors included the inference that the appellant’s mental health played a causal role in the commission of the offence. At para. 6, this court found that was a proper inference. And, at para. 8, this court stated:
The record also supports the trial judge’s conclusion at para. 50 of her reasons, namely: “To now impose a custodial sentence would likely destroy any progress that has been made by Mr. Hart with respect to his mental health and in my view serve no genuine societal purpose.”
[26] While the sentencing judge acknowledged the appellant’s addiction and mental health challenges, he did not consider whether there was a causal link between them and the offences. He was required to determine the extent to which those matters contributed to the appellant’s conduct and the impact of that finding on the appropriate sentence: R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused, [2014] S.C.C.A. No. 53. There was ample evidence of that causal link in the: two pre-sentence reports; medical records which included the appellant’s attempts to get treatment at the Sault Area Hospital in the months leading up to the incident; and, reports from Dr. Pistor (psychiatrist), John Mertes (therapist), and Frank Perri (social worker). The conclusion that there was such a causal link is virtually inescapable on the evidence: the appellant wanted to commit suicide (using the shotgun) because of his addictions, his unresolved mental health issues, and the ensuing breakdown of his life. That the appellant’s mental health problems and addiction played a central role in the offences is borne out by the appellant’s conduct once on bail and being treated. He abided by strict bail conditions for over two years without a breach and fully complied with the rules and regulations of the John Howard Society Bail and Supervision Program.
[27] Even if denunciation and deterrence were the overriding objectives in this case, a sentence of imprisonment was not the only route to achieve them. A conditional sentence recognizes the seriousness of the offences while at the same time acknowledging and promoting the significant strides in rehabilitation that the appellant has made with the help of his family and the medical community. Imposing a custodial sentence was likely to have a serious negative effect on the appellant’s progress and would not serve the genuine societal interest.
[28] Finally, I reject the appellant’s submission that the sentencing judge erred in failing to give him credit for the time he spent under house arrest. While the sentencing judge’s reasons on Downes credit are sparse, a careful reading of paras. 62-63 shows that the appellant was given credit for that time.
[29] In para. 62, the sentencing judge acknowledged that there had been no further breaches of bail on charges that arose over two years earlier. He then stated, “Credit must be given to [the appellant] for compliance with those restrictive bail conditions”. The sentencing judge went on, in para. 62, to describe the extensive progress the appellant had made while following a “path of significant rehabilitation”.
[30] When he sentenced the appellant on Count 1 to 20 months’ custody, at para. 63 of his reasons, the sentencing judge stated that he had factored in the appellant’s “considerable rehabilitation” and “lengthy compliance with the current bail order”. He concluded that “In the absence of these mitigating factors, a penitentiary sentence would have been imposed”. From this, it is clear that the sentencing judge reduced the sentence imposed for Count 1 by at least four months in consideration of his rehabilitation efforts and as Downes credit.
IV. Disposition
[31] For these reasons, I would grant leave to appeal sentence, allow the appeal and substitute a two-year-less-a-day conditional sentence for the two-year-less-a-day custodial sentence, on the terms that the parties have agreed to. The conditional sentence order, containing these agreed-upon terms, is attached to the final order. The probation order and ancillary orders imposed by the sentencing judge remain undisturbed.
Released: July 5, 2021 “J.S.” “E.E. Gillese J.A.” “I agree. Janet Simmons J.A.” “I agree. Grant Huscroft J.A.”
Footnotes
[1] The appellant said he was prescribed 300 Percocet and 180 OxyContin per month after the boating accident. The author of the first pre-sentence report was unable to confirm this because the initial prescribing physician had been suspended from practicing medicine.
