Court File and Parties
Court of Appeal for Ontario Date: 20220112 Docket: C67419
Before: Miller, Zarnett and Coroza JJ.A.
Between: Her Majesty the Queen Respondent
And: Kristian Jarvis Appellant
Counsel: Myles Anevich, for the appellant Jessica Smith Joy, for the respondent
Heard: January 4, 2022 by video conference
On appeal from the sentence imposed on March 20, 2019 by Justice John McMahon of the Superior Court of Justice.
Reasons for Decision
[1] The appellant was sentenced to 13 years in custody, with credit for 3 years for time served, after pleading guilty to four counts of robbery while using a firearm, four counts of recklessly discharging a firearm, one count of aggravated assault, and one count of failing to stop for police.
[2] The appellant argues that the sentencing judge erred in four respects:
- By imposing the sentence related to discharging a firearm at a police officer consecutively rather than concurrently;
- By imposing a harsh, excessive, and crushing sentence;
- By failing to adhere to the principle of restraint; and
- By erring in principle by failing to properly weigh the aggravating and mitigating factors.
[3] At the hearing of the appeal, counsel for the appellant focused his submissions on the first and fourth grounds.
[4] As explained below, we do not agree that the sentencing judge made any error.
[5] The decision to impose sentences consecutively is a discretionary decision. The sentencing judge carefully attended to the circumstances of the case and concluded that the offences ought to be grouped into three distinct phases: (1) firing a handgun at his brother, (2) multiple attempted carjackings and assaults including shooting the occupant of one of the vehicles, and (3) evading capture by firing at the police while engaging them in a high speed chase up Highway 400. The appropriateness of sentencing consecutively for offences related to flight from police is supported by the authorities that stress the need for deterrence of highly dangerous behaviour in flight from police: R. v. Corcho, [1993] O.J. No. 98 (C.A.); R. v. Mills, 2014 ONSC 1134, at para. 110; and R. v. McFarlane, [2012] O.J. No. 6566 (S.C.), at paras. 70-73. If sentences for such offences are not consecutive, flight from police might seem well worth the risk: R. v. Sturge (2001), 17 M.V.R. (4th) 272 (Ont. C.A.), at para. 6. The sentencing judge made no error in this regard.
[6] The 10-year sentence imposed for aggravated assault involving gun violence and injury was within the range identified by the parties of 7 – 11 years: R. v. Bellissimo, 2009 ONCA 49, at para. 3. With respect to firing at police during the chase on Highway 400, the sentencing judge reduced the consecutive sentence for discharging a firearm with intent to endanger the life of the police officers to 3 years from 7 out of respect for the totality principle. The sentencing judge was entitled to approach sentencing in this fashion, and the total sentence resulting was not harsh and excessive given the circumstances of the offences.
[7] With respect to the restraint principle, the sentencing judge considered the facts relevant to restraint, including the appellant’s lack of a prior criminal record and that the global sentence imposed should not crush the appellant’s hope of rehabilitation and reintegration into society. The sentencing judge did not err by prioritizing denunciation and deterrence in the circumstances of these offences and this offender.
[8] Finally, the appellant’s submission that the trial judge erred in improperly weighing the aggravating and mitigating factors is in reality an invitation to reweigh, something an appellate court is not permitted to do. The sentencing judge took into account, as a mitigating factor, that the appellant had committed the offences while in a drug induced psychosis brought on by the voluntary ingestion of methamphetamines, but also noted that this did not justify his criminal conduct and that the appellant had made conscious and clear decisions demonstrating a high degree of culpability. The sentencing judge did not make the error of using the elements of the offences as aggravating factors. Carrying a handgun was an aggravating element, as was the number of times the appellant fired the gun, and the infliction of gratuitous violence, particularly with respect to the victim he shot.
Disposition
[9] Leave to appeal sentence is granted but the appeal of sentence is dismissed.
“B.W. Miller J.A.”
“B. Zarnett J.A.”
“S. Coroza J.A.”
