Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Diamen Cada

Before: Justice T. Lipson

Reasons for Judgment released on: January 25, 2013

Counsel:

• S. Olver, for the Crown
• C. Rippell, for the accused Diamen Cada

Reasons for Sentence

[1] Charges and Guilty Pleas

Diamen Cada was originally charged with attempt murder while using a firearm, aggravated assault as well as several other firearm related offences including discharge firearm endanger life and use firearm to commit an indictable offence. The accused elected to be tried by judge and jury and a preliminary inquiry commenced before me. At the completion of the evidence, Mr. Cada re-elected to be tried in the Ontario Court of Justice and, with the consent of the Crown, entered guilty pleas to aggravated assault and possession of a weapon (a shotgun) for a purpose dangerous to the public peace.

[2] Agreed Statement of Facts

Crown and defence submitted this agreed statement of facts in support of the guilty pleas:

On February 3, 2011, at approximately 9:46 p.m., police attended the area of 1911 Eglinton Avenue East in response to a shooting radio call. Police arrived on scene and located the reportee in an Orange Dodge Neon (BEWW 363) in the rear parking lot of the above address. The vehicle was running and was in the east exit driveway of the parking lot, going out onto Warden Avenue.

The male driver of the vehicle was outside of the vehicle waving to police. Police approached the vehicle and the male driver, Justin HAYNES, advised that his friend in the backseat was shot and needed help. Police observed there was a female occupant (Jaydee KINNERSLY-WHYTE) in the front passenger seat and a male passenger in the rear seat. Police approached the rear of the vehicle from the passenger side and observed the victim, Jonathan LEDUC, screaming in the back seat. Mr. Leduc advised police "I've been shot, I need help". Police observed a large amount of blood in the backseat of the vehicle and all over Mr. Leduc. Mr. Leduc was wearing a large black winter jacket with a large hole in the right sleeve of the jacket where the white stuffing was protruding. Jonathan took off his jacket upon police request and he had a very large, deep gunshot wound on the inside of his right forearm. Mr. Leduc was bleeding profusely and DAS (Department of Ambulance Services) was rushed to the above location. Several police units were on scene to assist with the situation.

Mr. Leduc was quickly treated by paramedics on scene and loaded onto their vehicle for transport to Sunnybrook Hospital. Officer Kerr rode on board the ambulance vehicle with Mr. Leduc to the hospital.

While on transport to Sunnybrook Hospital, Mr. Leduc advised police that he was in the rear of Mr. Haynes' vehicle and they were going to pickup a friend of Ms. Kinnersly-Whyte's, Diamen CADA. Mr. Leduc advised that Mr. Haynes pulled into the rear parking lot of 1757 Victoria park Avenue where they were to meet Diamen Cada. The victim, Mr. Leduc, advised they pulled into the rear parking lot and Mr. Cada came out of the apartment building. The victim got out of Mr. Haynes' Neon vehicle to let Mr. Cada in. Mr. Cada refused to get into the vehicle for an unknown reason, and then 2 or 3 males in balaclavas quickly approached them. The victim advised he tried to get back into the vehicle, but got into a struggle with Mr. Cada. Next thing he knows is that one of the masked males shot him. The victim was able to describe Mr. Cada, but could not provide any description of the other 2 – 3 suspects as they were wearing balaclavas.

At 10:16 p.m., DAS arrived at Sunnybrook Hospital. The victim was brought into emergency and treated by a trauma team. The doctors advised that the victim (Mr. Leduc) was in stable condition and that he had suffered possibly 2 gunshot wounds. Dr. Cleghorn advised that there was a superficial wound (possibly caused by a bullet bouncing off the skin) on Mr. Leduc's upper left arm (outer side of bicep) along with the large gunshot wound to Mr. Leduc's right forearm.

Police seized all of Mr. Leduc's bloodied clothing as evidence which was put in brown paper bags.

Mr. Leduc was taken to the CT room for a scan and then brought back to emergency. At this time, Mr. Leduc advised police that he had approximately $1,600 cash on his person when they went to meet Mr. Cada, but he had hidden it in the back seat of the Orange Neon vehicle prior to meeting with Mr. Cada. He advised police that this money was his rent and food money for the month of February and that he hid it as a precaution because bad things always happen to him.

During the time that Mr. Leduc was in hospital, other police personnel were searching various locations including the interior of 1757 Victoria Park Avenue. Sgt. Capizzo requested the building superintendent be located to view the lobby video, if any. At 10:55 p.m., the superintendent, Mr. DeSilva, was located and assisted police with viewing the video surveillance.

Viewed on video: At 9:25 p.m., a male (Mr. Haynes) and female (Ms. Kinnersly-Whyte) entered the front doors of the building, pacing, texting on phones. A male (Mr. Cada) comes to the front lobby to speak to the male and female. He leaves and enters the elevator to an unknown floor. The male and female then exit the building through the front door. Mr. Cada was wearing a beige ¾ length large jacket with a fur trimmed hood.

The surveillance video was seized.

On February 4, 2011, a Criminal Code search warrant was executed on the Neon vehicle. A number of items were seized as exhibits from this vehicle, including fraudulent Canadian Social Insurance Cards, fraudulent driver's licences involving both Mr. Haynes and Ms. Kinnersly-Whyte, cell phones, and a quantity of Canadian currency ($1, 675.00) located in the trunk area behind the right rear passenger seat.

It should be noted that Mr. Haynes and Ms. Kinnersly-Whyte were taken to the police station and interviewed as to any knowledge they had about the shooting. Mr. Haynes was unable to assist the police, however, Ms. Kinnersly-Whyte eventually admitted that she knew the male who they met in the lobby of 1757 Victoria Park Ave. This male was her friend, Diamen Cada. During the time of her interview, a computer was provided to her so she would be able to show a police officer a picture of Mr. Cada. At 2:51 a.m. on February 4, 2011, Diamen Cada sent an email to Ms. Kinnersly-Whyte, in full view of the police officer who was interviewing her. It stated:

"Yo listen I know shit went wrong but straight up there aint no snitchin u came 2 sell us a few pounds of dank and shit went wrong u know wat it is wen u get into the game but im just showin u strgight no snitchin will deal with it if u want but remember u snitch u came 2 sell me a lot off weed eh so my bad 4 wat happen 2 ur boy but shit happens."

This email was printed and was admitted into evidence at Mr. Cada's Preliminary Hearing when Ms. Kinnersly-Whyte testified.

The victim, Mr. Leduc, was also interviewed after his surgery. His evidence was as already mentioned above. During Mr. Leduc's testimony at the Preliminary Hearing, he described his injuries, specifically the degree of injury to his arm. The medical records were admitted as evidence and should also be entered as an exhibit for the purposes of sentencing.

Once Ms. Kinnersly-Whyte identified Mr. Cada, the police subsequently arrested him at his home. The beige jacket with the fur trimmed hood that he was wearing as seen on the surveillance video was also seized.

Mr. Cada did provide a statement to the police and eventually admitted that it was over drugs, but he was adamant that he was NOT the one who shot Mr. Leduc. He refused to provide any names of the other suspects. He was very afraid.

The police investigation led to production orders of the cell phones. Ultimately, it was obvious that there was communication between Ms. Kinnersly-Whye and Mr. Cada with respect to the purchase of drugs.

Mr. Cada is now prepared to admit that he arranged for the sale of marijuana at 1757 Victoria Park Avenue. He met Mr. Haynes and Ms. Kinnersly-Whyte in the lobby and had them attend behind the building. Mr. Cada knew that certain other male parties intended to steal the money which was intended for the marijuana purchase. He did NOT know, however, that any of these parties had a firearm with them. He was aware that these parties had access to guns, and thus was "wilfully blind" to the possibility that they would bring and/use a gun during this robbery.

When Mr. Cada met Mr. Haynes, Ms. Kinnersly-Whyte, and Mr. Leduc behind the building (1757 Victoria Park), one of the masked male parties who was intending to take the money and/or the marijuana, pulled out a firearm and shot Mr. Leduc. Upon seeing this, Mr. Cada fled the scene, ultimately going home where he was eventually arrested as stated earlier. He was cooperative with the police.

[3] Crown's Position on Physical Assault

The Crown did not take issue with the defence position that Mr. Cada was not involved in a physical struggle with Mr. Leduc nor did he assault him.

[4] Victim's Injuries

Medical records concerning the victim's condition were entered into evidence. Mr. Leduc suffered a single gunshot wound which resulted in seemingly permanent damage to his right forearm.

Circumstances of the Offender

[5] Personal Background

Mr. Cada is 23 years of age. He is a first offender. He has Aboriginal roots through his father and grandmother. A Gladue Report was prepared and considered by the court. Mr. Cada has been on house arrest bail conditions since released and has been living with his grandmother and then his mother. He is attending some continuing education classes in Ajax in order to complete his Ontario Secondary School education. This semester is scheduled to end on December 20, 2012. Ongoing marijuana dependency is a concern for Mr. Cada's rehabilitation. As well, there are unresolved anger and abandonment issues relating to the accused's father leaving the family home when Mr. Cada was a young teenager.

Positions of the Parties

[6] Crown's Position

The Crown seeks a custodial sentence of 12 months on the charge of aggravated assault followed by a conditional sentence of 12 months on the charge of weapons dangerous as well as a probationary term of 2 years. Ancillary orders being sought are a section 109 order for 10 years and a DNA order.

[7] Defence Position

The defence seeks a 90 day sentence on the aggravated assault charge to be followed by a conditional sentence of 21 months on the weapons dangerous plus a lengthy probationary term.

Mitigating and Aggravating Factors

[8] Mitigating Factors

There are several mitigating factors in this case. Mr. Cada is a twenty-three year old first offender of Aboriginal heritage. Despite his troubled upbringing and drug addiction, Mr. Cada has avoided a criminal record and, while on release, furthered his education. He has pleaded guilty and is remorseful. The plea is especially meaningful because the evidence of the main Crown witnesses, all of whom testified at the preliminary hearing, was problematic for the prosecution case against the accused. Mr. Cada has been on strict house arrest bail conditions since his release from custody in early February 2011. He has abided by his bail conditions and resumed taking courses to complete his secondary school education. Lastly, Mr. Cada was not the individual who shot Mr. Leduc.

[9] Aggravating Factors

However, there are several aggravating factors. The various offences charged are themselves very serious. Mr. Cada played an integral role in this planned drugs/money rip-off of Mr. Leduc. According to an email he sent to one of the witnesses following the incident (referred to in the agreed statement of facts), Mr. Cada personally arranged to buy a couple of pounds of marijuana from the victim and then lured him and his friends to the back of an apartment building where masked associates were waiting to rob the victim. Mr. Cada admitted that he was aware that his associates had access to guns and was wilfully blind to the possibility that they would bring and use a firearm to carry out the robbery. It is an aggravating factor that a firearm was used in this robbery and that the victim suffered a debilitating injury to his right arm as a result of being shot. Following the incident Mr. Cada also sent a warning to one of the witnesses not to "snitch".

[10] Psychological Issues and Substance Abuse

Further, Mr. Cada has a marijuana dependency and unresolved psychological issues relating to his abandonment by his father when he was a young teenager. The Gladue report indicates that in spite of these ongoing issues, Mr. Cada is not amenable to counselling in either of these areas.

Mr. Cada's Aboriginal Background

[11] Gladue and Ipeelee Principles

Of course, the accused's Aboriginal heritage and the principles set out in R. v. Gladue, [1999] 1 S.C.R. 688, recently reaffirmed in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, require a careful consideration of this accused's unique background factors in order for the court to ascertain whether certain sentences would be especially meaningful to him.

[12] Ipeelee Cautions

I am mindful that Ipeelee cautions judges to avoid misconceptions that some sentencing courts have made in the past and in particular:

1. Section 718.2(e) and Gladue/Ipeelee should be considered in all cases where an Aboriginal person is being sentenced. That includes cases involving urban Aboriginal persons or those who do not appear to have any connection to the Aboriginal community. In Ipeelee at paras. 81-87, the court states that an offender need not establish a causal link between background factors and the commission of the offence before being entitled to have those matters considered by the sentencing judge. That would downplay the devastating intergenerational effects of the collective experiences of Aboriginal peoples.

2. Section 718.2(e) and Gladue applies to serious and violent offences. In Ipeelee, Justice Lebel makes it clear that s. 718.2(e) does not draw a distinction between serious and non-serious cases. Rather, the Court states at para. 83 that unless the unique circumstances of the particular offender bear on his culpability for the offence or indicate which sentencing objectives can and should be actualized, his Aboriginal background will not influence the ultimate sentence.

[13] Application to Mr. Cada

It is clear that Gladue/Ipeelee considerations apply to Mr. Cada. But to what extent does his Aboriginal heritage reduce his moral blameworthiness for these serious crimes? Despite its thorough and careful contents, the Gladue report does not provide an easy answer to this difficult issue. Nevertheless, Ipeelee and Gladue compel me to take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canada. Specifically, many Aboriginal communities face high rates of unemployment, substance abuse, suicide and family breakdown.

[14] Mr. Cada's Family Background

With respect to Mr. Cada, his Aboriginal father abruptly separated from the family when the accused was only 11 years old. Because of this, Mr. Cada suffered from abandonment issues and lacked a critical parental figure necessary for a child's proper psychological development (Gladue report, p.11). It was also during this time that Mr. Cada developed an addiction to marijuana and a taste for alcohol (Gladue report, p.7). This sort of a narrative of a troubled family life is unfortunately all too familiar for many Aboriginals in Canada. As the court stated in Ipeelee at paras 82-83 a causal link is not needed between the "systemic and background factors and the commission of the offence"; a mere possibility that such a background could have "played a part in bringing the particular offenders before the courts" is sufficient.

[15] Section 718.2(e) as a Remedial Provision

Section 718.2(e) is a remedial provision, the clear purpose of which is to ameliorate the serious problem of overrepresentation of Aboriginal people in prisons and to encourage sentencing judges to have recourse to a restorative approach to sentencing. At the same time, Gladue also instructs at para. 88 that s. 718.2(e) should not be taken as requiring an automatic reduction of sentence or remission of a warranted period of incarceration simply because the offender is Aboriginal. That principle is affirmed in paras. 75 and 85 of Ipeelee, where the Court stated:

[75] Section 718.2(e) does not create a race-based discount on sentencing. The provision does not ask courts to remedy the overrepresentation of Aboriginal people in prisons by artificially reducing incarceration rates. Rather, sentencing judges are required to pay particular attention to the circumstances of Aboriginal offenders in order to endeavour to achieve a truly fit and proper sentence in any particular case. This has, and continues to be, the fundamental duty of a sentencing judge. Gladue is entirely consistent with the requirement that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them. Gladue affirms this requirement and recognizes that, up to this point, Canadian courts have failed to take into account the unique circumstances of Aboriginal offenders that bear on the sentencing process. Section 718.2(e) is intended to remedy this failure by directing judges to craft sentences in a manner that is meaningful to Aboriginal peoples. Neglecting this duty would not be faithful to the core requirement of the sentencing process.

[85] [U]nless the unique circumstances of the particular offender bear on his culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.

[16] Balancing Considerations

Mr. Cada had a troubled childhood. However, his current offence is one that was motivated purely by financial gain (Gladue report, p 14). He demonstrated a high degree of recklessness that his associates would use a firearm in the commission of this planned robbery. This case presents the court with a difficult challenge in crafting an appropriate sanction that addresses deterrence and denunciation while at the same time taking into account s. 718.2(e). The Gladue report's author does not recommend that Mr. Cada be connected to any Aboriginal resources in the community. Likewise, Mr. Cada did not express any apparent connection to his Aboriginal community. Nevertheless, I am satisfied that the respective positions advanced by both Crown and defence counsel do take into account the accused's personal circumstances and the need to protect the community. Each position contains a significant rehabilitative component by means of a lengthy community-based sentence on the weapons dangerous charge. The Crown and defence agree on the need for a custodial sentence with respect to the aggravated assault. The parties differ on the issue of quantum.

Relevant Principles of Sentencing and their Application to this Case

[17] Fundamental Principle of Proportionality

The fundamental principle of sentencing, found in s. 718.1, is proportionality: the fitness of the sentence must reflect the gravity of the offence and the degree of responsibility of the offender.

[18] Seriousness of Aggravated Assault

The aggravated assault here is very serious and a custodial sentence is required to address the paramount sentencing objectives of denunciation and deterrence. The main difference between the competing positions of Crown and defence is the necessary length of custody required to properly meet those objectives.

[19] Planned Robbery and Firearm Use

The robbery, which resulted in the use of a firearm, was planned. The injuries inflicted upon the victim were very serious. Mr. Cada was a crucial player in the chain of events culminating in the shooting and it is clear that he orchestrated this drug rip-off. He knew that his associates had access to firearms and yet chose to be wilfully blind to the real likelihood that a firearm would be used in the commission of these offences. Even though Mr. Cada is a first offender and was not the shooter, a sentence in the upper reformatory or lower penitentiary range would be well within the appropriate range of sentence. A custodial sentence is required not only to impress upon Mr. Cada the gravity of the offence and to deter him from future offending, but also to make it clear to society that such actions are unacceptable.

[20] Rehabilitation

With respect to the important sentencing objective of rehabilitation, Mr. Cada has furthered his education while on house arrest. He has not reoffended and has maintained his bail conditions. Of concern to the court is Mr. Cada's current unwillingness to address his substance and psychological issues. The remedial component should be included in the sentence in order to assist Mr. Cada's rehabilitation. I strongly urge that upon completion of the custodial sentence, Mr. Cada should seek out psychiatric counselling for his issues.

[21] Sentence Imposed

In light of the seriousness of the offence, and having considered the multitude of aggravating and mitigating factors as well as the requirement found in s. 718.2(e), I am satisfied that the Crown's position of a twelve month reformatory sentence on the charge of aggravated assault is reasonable and appropriate. Because of the lengthy period of time Mr. Cada has spent on a restrictive house arrest bail, I would give him a credit of three months, thereby reducing the period of custody I would impose to one of 9 months. This is to be followed by a 12 month conditional sentence on the charge of weapons dangerous. An additional probationary term of 12 months is necessary to encourage Mr. Cada's rehabilitation efforts.

[22] Conditional Sentence Terms

In addition to the mandatory terms, the conditional sentence will include the following:

• Live at an address approved by your conditional sentence supervisor
• House arrest for the first six months: exceptions—to attend court, medical emergencies, education and/or employment, counselling, scheduled legal and medical appointments, any other reason approved of by your conditional sentence supervisor
• Last six month curfew from 11 pm to 6 am the following day: exceptions medical emergencies, education/employment, any other reason approved of by your conditional sentence supervisor
• Report to conditional supervisor within 72 hours of release from custody and thereafter as required
• Not buy, possess or consume alcohol or any other intoxicating substances
• Do not possess any weapons as defined by the Criminal Code
• Attend for and actively participate in an assessment and counselling as directed by your conditional supervisor for substance abuse, life skills, psychological and mental health issues and any other issues identified by your supervisor to assist in your rehabilitation
• Sign releases
• Not to have any contact with the victim

[23] Probation Terms

The terms of probation will be:

• Report to your probation officer as required
• Not to possess any weapons as defined by the Criminal Code
• Attend for counselling as may be directed by your probation officer for substance abuse and any other programs deemed appropriate by your probation officer
• Sign releases
• No contact with the victim

Ancillary Orders

[24] DNA Collection Order

Aggravated assault is a "primary designated offence" under s. 487.04 of the Code. I do not find the impact a DNA order on Mr. Cada's privacy and security to be grossly disproportionate to the public interest in the protection of society and the proper administration of justice. I am therefore compelled to issue a DNA collection order.

[25] Firearms Prohibition

With respect to section 109(2)(a), Mr. Cada is prohibited from possessing any firearms other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, or explosive substance for a period of 10 years, and from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

Released: January 25, 2013

Justice T. Lipson