Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230918 DOCKET: C66978

Trotter, Harvison Young and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Shaquille Collins Appellant

Counsel: Lance Beechener and Brendan Monk, for the appellant Michael Bernstein, for the respondent

Heard: In writing

On appeal from the conviction entered on June 23, 2018, by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury.

Trotter J.A.:

Endorsement

[1] The appellant was convicted of the first degree murder of Mr. James Bajkor (Criminal Code, R.S.C. 1985, c. C-46, s. 235(1)) and the attempted murder of Mr. Justin Beals (s. 239). He received the mandatory sentence for first degree murder – life imprisonment with no eligibility to apply for parole for 25 years. He was also sentenced to life imprisonment for attempted murder, to be served concurrently.

[2] On June 6, 2023, this court dismissed the appellant’s appeal of his first degree murder conviction; however, the attempted murder conviction was set aside and a conviction for aggravated assault under s. 268 of the Criminal Code was substituted: R v. Collins, 2023 ONCA 394. As aggravated assault carries a maximum sentence of 14 years’ imprisonment, the panel requested that the parties make written submissions on the sentence to be imposed for that offence.

[3] It is not necessary to recount in detail the tragic circumstances of this case. In brief, while carrying out a planned attack on Mr. Beals, the appellant accidentally but fatally shot Mr. Bajkor, a 22-year-old innocent bystander. The appellant fired five bullets in rapid succession while he was pursuing Mr. Beals. Mr. Beals was hit by two bullets, one in his arm, and the other in his abdomen. He was seriously injured and required immediate medical attention. He too could easily have died that day.

[4] Counsel for the appellant submits that an appropriate sentence on the attempted murder count is 11 years’ imprisonment. In making this submission, he relies on R. v. Bellissimo, 2009 ONCA 49, in which this court spoke of a range of 7 to 11 years for aggravated assault while using a firearm. Subsequent decisions of this court have referenced this range: R. v. Jefferson, 2014 ONCA 434, at para. 14; R. v. Johnston, 2021 ONCA 331, at para. 19; and R. v. Jarvis, 2022 ONCA 7, at para. 6. The Crown submits that, in the extraordinary circumstances of this case, the appellant should receive the maximum sentence – 14 years.

[5] The appellant received the maximum sentence available in Canadian criminal law for taking Mr. Bajkor’s life. He cannot be punished twice for this senseless act of violence. However, to ignore the reality of what occurred that day would be to take the aggravated assault on Mr. Beals out of its proper context.

[6] The only mitigating factor in this case is the appellant’s youth at the time of these offences. He was 19 years old. Everything else points in the other direction. The appellant planned his attack on Mr. Beals. After an initial street fight with Mr. Beals, he summoned his friends as backup. He asked for a gun, which his friends delivered to him. As already noted, he ran after Mr. Beals and fired five shots, at close range, and in rapid succession. He did so while they were outside, exposing others to lethal danger, as evidenced by Mr. Bajkor’s death.

[7] As the trial judge noted when sentencing the appellant for attempted murder, rehabilitation has little role to play in this case. Although the trial judge is owed no deference in this case in view of the substituted conviction for aggravated assault, this observation about rehabilitation is certainly supported by the record on sentencing. Before committing this offence, the appellant had already accumulated a terrible record for all manner of offending, including violence. On numerous occasions in pre-trial detention, the appellant misconducted himself.

[8] The sentence to be imposed on this aggravated assault charge must privilege the principles of denunciation and general deterrence. In my view, the unique circumstances of this case remove it from the range identified in Bellisimo. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, Wagner J. (now C.J.C.) made the following observations about sentencing ranges, at para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation.

In this case, the only proportionate sentence is the maximum sentence – 14 years.

[9] Accordingly, I would sentence the appellant to a concurrent sentence of 14 years’ imprisonment on the count of aggravated assault. He is entitled to credit on this count for his time spent in pre-sentence custody, from the day on which he was arrested (May 26, 2012) until the day he was originally sentenced (June 13, 2018). From this, I would deduct 90 days during which the appellant served a sentence for an unrelated assault conviction. The total number of days is 2119 (or 5 years, 9 months, and 24 days). In the circumstances of this case, I see no basis to award enhanced credit. I would credit the appellant at a ratio of 1:1, which accords with the appellant’s life sentence on the count of first degree murder, which is deemed to commence from the time when he was arrested and taken into custody: Criminal Code, s. 746(a).

Released: September 18, 2023 “G.T.T.” “Gary Trotter J.A.” “I agree. A. Harvison Young J.A.” “I agree. L. Favreau J.A.”