Court File and Parties

Court File No.: Newmarket Court File No. 14-04978 Date: 2015-11-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Elkingston Roosevelt Fernandes

Before: Justice H.I. Chisvin

Counsel:

• A. Tierney, for the Crown
• P. Cooper, for the accused Elkingston Fernandes

Reasons for Sentence

Released on November 23, 2015

Overview

[1] Elkingston Fernandes was charged with numerous offences arising out of an incident that occurred with the York Regional Police on July 8, 2014. Following the incident, he was arrested and held for a show-cause hearing. He was ultimately released on a recognizance with sureties. Numerous strict conditions were originally part of his release. Over time, some of the terms were relaxed on consent of the Crown.

[2] On July 30, 2015, Mr. Fernandes entered a plea of guilty to two counts; pointing a firearm (a pellet gun) at a police officer, contrary to section 87(2) of the Criminal Code, and to the offence of threatening death to a police officer, contrary to section 264.1(2) of the Code.

[3] On consent of all parties, a finding of guilt was made on that date based on the facts set out on the face of the information. This was done to allow a pre-sentence report to be prepared, as well as further material to be prepared by counsel for purposes of sentencing. On October 26, 2015, further facts were placed before the Court and sentencing submissions made.

[4] The facts are not particularly complex, and while I do not propose to set them all out here, I will set out a brief synopsis of the facts as agreed to by Mr. Fernandes.

[5] On July 5, 2014, Mr. Fernandes' mother contacted the police because Mr. Fernandes was struggling with what were clearly mental health issues. Mr. Fernandes was initially arrested and then taken to a police station. There he was restrained because of his conduct. Notwithstanding the use of restraints, he ultimately smashed his head and was taken to the hospital. At the hospital, he was attended to by a physician who, notwithstanding the issues that he presented with, released him from the hospital.

[6] The police, then, without laying any charges, took him home. Mr. Fernandes came to believe, because of his mental health issues, that a police officer had caused his head injury.

[7] On July 8, 2014, as a result of the deterioration in his mental health and his abuse of substances, Mr. Fernandes was again acting out. By this time, Mr. Fernandes was in possession of a pellet gun and was making threatening statements. His mother, a member of York Regional Police, came home to find him in this state. As she was unable to deal with him, she contacted 911. The police responded. She left the home and advised the first officer on scene that her son was in possession of a pellet gun.

[8] Mr. Fernandes, at this time, left the residence and pointed, what was a realistic looking pellet gun at the first officer who arrived on scene. A police challenge was made. Mr. Fernandes made threats to cause death to a specific police officer (the second count he pled guilty to). He then returned to the home. Other officers attended at the scene. Mr. Fernandes fled out the back of the home without taking the pellet gun with him. He was ultimately arrested.

[9] As I said, this is only a short synopsis of the facts presented. I do not propose to set out all of the facts, however, I wish it to be clear that in reaching my decision as to what the appropriate sentence is to be, I have taken into account all facts presented and have considered all factors as set out by counsel in the course of this matter, as well as the material filed.

Sentencing Principles

[10] In imposing the appropriate sentence on Mr. Fernandes, I begin with the words of Doherty J. of the Court of Appeal in R. v. Hamilton, 2004 72 O.R. (3d) 1 (C.A.) at paragraph 85 where he says:

Sentencing is a delicate case-specific exercise. There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses.

And again at paragraph 87:

Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint-by-numbers landscape is to the real thing. . . the fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence with the unique attributes of the specific offender.

[11] These comments were reiterated by LaForme J. in R. v. R.B., 2013 ONCA 36, at paragraph 18. In approaching my assessment of this matter, I recognize these comments by the Court of Appeal, as well as the specific principles of sentencing that apply to the offences to which Mr. Fernandes entered pleas of guilty, as well as the principles of sentencing as set out in the Criminal Code.

Submissions of Counsel

[12] Counsel for Mr. Fernandes submitted that the appropriate sentence, having regard to his client's unique circumstances, is one of a conditional discharge and probation for two years, including significant community service work.

[13] The Crown, in her submissions, stated that the appropriate sentence for these types of offences would normally be a custodial sentence of one year, plus probation. She then indicated that given the work that Mr. Fernandes has done since his arrest, that a 90-day intermittent sentence plus probation would be appropriate. As she continued through her submissions, she then said if I was considering a non-custodial sentence, then a fine or a suspended sentence would be appropriate. In any case, a conditional discharge would not be appropriate, she stated.

The Offender: Personal Background and Circumstances

[14] I begin my consideration of this matter with Mr. Fernandes as an individual. He is, at the time of sentencing, 20 years old. He was born in India, and immigrated to Canada with his entire family in 2004. Over time, his parents separated and his father returned to India. He remained in Canada with his mother and three sisters.

[15] Mr. Fernandes presents to the Court with no criminal record, although as part of the factual circumstances that led up to this offence, I was made aware of the police contact on July 5, 2014.

[16] A pre-sentence report was ordered, and is Exhibit 1 in this proceeding. It sets out extensively the extremely difficult factual background that Mr. Fernandes grew up in, primarily because of the conduct of his father. As I said, Mr. Fernandes lives with his mother and sisters. His mother was the one who, for a number of years, raised both him and his sisters as a single parent. Mr. Fernandes' father, who returned to India in 2006, was a brutally abusive individual to Mr. Fernandes, his siblings, and his mother. His father apparently has continued to make threats towards his family and this information has been provided to both the police and Canadian Border Services. Despite being gone since 2006, it is clear that Mr. Fernandes' father has had a significant negative impact in his life well beyond the time period in which he was in the country.

Substance Abuse and Mental Health Issues

[17] The information in the pre-sentence report sets out in great detail Mr. Fernandes' misuse of substances. Mr. Fernandes himself admitted he began drinking alcohol when he was 13 years of age. He started using marijuana at an even earlier age. There were many occasions when he would use both alcohol and drugs before going to school when he was attending high school.

[18] In elementary school, Mr. Fernandes was diagnosed with ADHD. He was given medication for this, which he discontinued use of because of its side effects. Throughout his schooling, Mr. Fernandes was provided with educational support by the school system. His history of school was not without incident, having been caught participating in a theft and being suspended at different times for drug issues.

Employment and Rehabilitation

[19] Mr. Fernandes has great aptitude with automobile mechanics. After leaving high school, he attended post-secondary school training for auto mechanics and currently is in a registered apprentice program. Counsel provided letters in his material indicating both Mr. Fernandes' success at school and as an apprentice. In fact, Mr. Fernandes has been so successful that not only is he working a full-time shift, but the automobile dealership where he is working, a company known for its high-end vehicles, has asked him to participate in their specific company program for mechanics. Mr. Fernandes has, indeed, attended two of these programs thus far and has passed both.

[20] As I stated earlier, Mr. Fernandes started using alcohol and other substances at a very early age. There is no question that the use of these substances was a significant factor in the offence of July 8, 2014, and has had a significant impact on Mr. Fernandes' mental health. While in high school, Mr. Fernandes attended and completed a 90-day residential substance abuse program. That program clearly was not a success. A condition of his release in July, 2014 by his mother, who is one of the sureties, was that he abstain of the substances.

[21] Mr. Fernandes initially resisted this but ultimately agreed to do so. Within two days of his release, Mr. Fernandes attended a YMCA youth substance abuse program. He has thus far succeeded in the program. Indeed, his counsellor provided a letter to the probation officer writing the pre-sentence report to this effect. Letters of attendance at the program were also included in the material provided by counsel. Similarly, a letter of attendance at another program run through the Addiction Services of York Region, was provided to the Court. Mr. Fernandes is also receiving help from COTA Health, and a letter to this end was provided. Finally, a letter and certificate of successful completion of an anger management program through the John Howard Society was given to the Court.

[22] As stated, Mr. Fernandes has a history of mental health issues. This includes ADHD, a generalized anxiety disorder, a substance abuse disorder in addition to the learning disability. Mr. Fernandes' completed a number of assessments, including a forensic assessment and a neurodevelopment and educational assessment. Since his arrest, Mr. Fernandes has been prescribed medication, which has been successful in treating these issues.

[23] Finally, I note that Mr. Fernandes has tremendous family support. Not only was his mother his surety, but his three sisters have also been acting as sureties. All have been actively engaged with him in addressing his needs in ensuring that he continues as a positive contributing member of the community. Mr. Fernandes has successfully completed counselling programs and continues with a variety of other programs. He has been a success both in his school proper and perhaps more importantly, has shown tremendous aptitude and success in the working world. Not only does he have a job that he likes, he is liked at the job and shows the ability to advance there. Mr. Fernandes has been able to work on his substance abuse issues and has shown a significant ability to abstain.

[24] It is clear from the letter provided by his sister Eleanor that "…he is leaving the past behind him and is looking forward to a great future".

What is the Appropriate Sentence to be Imposed?

[25] The imposition of an appropriate sentence requires the Court to consider a number of factors, some of which are inherently contradictory. The sentence imposed in this matter must keep Mr. Fernandes moving in a positive way forward, and yet recognize the dangers that firearms pose in the community, whether imitation or real, and deter others from acting as Mr. Fernandes did.

[26] While deterrence, both general and specific, are always important principles, it is also important to recognize the factual circumstances here. This includes the recognition that mental health issues played a significant role in this offence. The reality is, if the community had a robust mental health process, Mr. Fernandes would likely have been dealt with outside the criminal justice system and may never have acted out in the way he did. Thus, this offence in some ways speaks to the failure of that system and the unfortunate reality that police officers are often left with picking up the pieces. Thus, it could be said that the situation, including what happened a few days prior to the July 8th incident, could be viewed as a mental health intervention gone bad.

[27] So what, then, is the appropriate range of sentence? Having regard to the principles of section 718 and following of the Criminal Code, having regard to the fact that Mr. Fernandes is a youthful first offender, and bearing in mind the submissions of the Crown, I am satisfied that the appropriate sentence in this matter would be one that involves probation. The question that needs to be asked is whether it should be a suspended sentence with probation or if the circumstances of this matter make a conditional discharge and probation appropriate.

The Conditional Discharge Test

[28] I turn, then, to consider whether the imposition of a conditional discharge is appropriate. The Criminal Code requires that before a conditional discharge can be imposed, two criteria must be met. They are that it must be in the best interests of the accused to impose a conditional discharge, and not contrary to the public interest.

[29] What do these two phrases mean? There is not a tremendous amount of appellate law dealing with the meaning of these two phrases. However, there is the decision from the Newfoundland and Labrador Court of Appeal in R. v. Edmunds, 2012 NLCA 26, which provides significant guidance.

[30] In Edmunds, the Court points out that the best interests of an accused means a discharge could be imposed where a person is usually without a prior discharge or conviction, is otherwise of good character, and requires neither personal deterrence or rehabilitation.

[31] The Court in Edmunds then notes at paragraph 20:

. . . a sentencing judge may take judicial notice of the fact that a criminal conviction will have a negative impact on a person's future, whether related to employment opportunities, travel, and so forth.

[32] The Court should not quickly ignore the significance of employment for a person and the strong positive effect it can have on an individual. In the case of Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at page 386, in the words of the late Chief Justice Dickson, at paragraph 19 state:

Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

[33] Applying this principle in this matter, Mr. Fernandes is not only employed, but is doing exceedingly well at his employment. The employment provides him not only with a great deal of personal gratitude, but it allows him to provide for his future and to assist his mother and his sisters. He has clearly a real aptitude for what he is doing, and taking this away from him, or limiting his ability to continue on this path, would only be detrimental.

[34] The Newfoundland Court of Appeal in Edmunds, supra, also, when considering what is in the best interests of accused, noted at paragraph 21 that a different approach needs to be taken with respect to those who have mental health issues:

The Crown further submitted that the need for specific deterrence in this case was not given sufficient weight by the sentencing judge as Mr. Edmunds will continue to be employed with the lockup and the opportunity to engage in similar conduct will arise again. This position is not persuasive. As Green J.A., as he was then, noted in R. v. Peters, 2000 NFCA 55, 194 Nfld. & P.E.I.R. 184:

[18] Deterrence and punishment assume less importance in cases of mentally ill offenders. See R. v. Hynes (1991), 89 Nfld. & P.E.I.R. 316 (Nfld. C.A.). In R. v. Robinson (1974), 19 C.C.C. (2d) 193 (Ont. C.A.) the Court emphasized that in cases where offenders commit crimes while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with such mental illnesses since it would be disproportionate to the degree of responsibility of the offender. This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in s. 718.1 of the Criminal Code.

[19] Thus, the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence. The focus in sentencing such offenders may properly therefore be placed on mechanisms that will promote rehabilitation and treatment, rather than on punishment. This is especially so where lengthy prison terms are often regarded as counterproductive, even in cases not involving the mentally afflicted. See R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.) at p. 408.

[35] As in Edmunds, Mr. Fernandes cannot be said to have been "out of touch with reality" when committing this offence, but his mental health state at the time was clearly impacting his perception of the world around him. His addictions were clearly overpowering him. His belief that he was becoming his father or just like his father was having a significant impact on his world.

[36] Since his arrest, and clearly with the assistance of his family, Mr. Fernandes has received help and support in an effort to deal with the problems and to really conquer them. While like anyone else with addiction problems, the road is long, there is no reason to believe that Mr. Fernandes will not be successful on that road that he has undertaken without specific court intervention to this point.

[37] Given Mr. Fernandes' mental state at the time, and the treatment that is already in place, to quote again from Edmunds at paragraph 22: "Where, as here, the offender has a lesser moral blameworthiness, the usefulness and appropriateness of specific deterrence is much reduced and the Court may properly place greater emphasis on rehabilitation."

Not Contrary to the Public Interest

[38] I turn now to consider what "not contrary to the public interest" means with respect to this matter.

[39] Again, the facts of the matter before this court, and the plea of guilty as entered by Mr. Fernandes are important considerations. This matter is very much but a collision between the mental health needs of an individual, a lack of appropriate resources, and the effects this policy has had on the criminal justice system.

[40] So again, I turn to paragraphs 25-26 in Edmunds where the Court held:

- not contrary to the public interest

25 This condition gives rise to a consideration of the need for general deterrence. The Crown submits, and I agree, that a breach of trust by a public officer, certainly by one in a position of authority over a vulnerable group of individuals, is a very serious offence that is not to be taken lightly. The Crown submits that this supports the contention that the sentencing judge failed to give adequate weight to the need for general deterrence. The problem with the Crown's position is, again, that it runs contrary to the principles expressed in Peters. Persons suffering from a mental illness which contributes to their commission of crimes are less likely to be deterred by the imposition of a harsher sentence on another individual.

26 Further, "most people understand that the mentally ill require treatment and supervision, not punishment": see R. v. Valiquette (1990), 60 C.C.C. (3d) 325 (Q.C.C.A.) at 331. In my view, the public's confidence in the effective enforcement of the criminal law will not be undermined where the Mental Health Court emphasizes rehabilitation over deterrence in such circumstances.

[41] Clearly, I am satisfied that Mr. Fernandes falls within the category of individuals for whom a conditional discharge would not be contrary to the public interest.

[42] In reaching the conclusion I do, I do not ignore the fact that Mr. Fernandes had the pellet gun, that it was pointed at a police officer, and that a great deal of community resources were expended on that date to ensure the safety of everyone, including the police officers, the public, and Mr. Fernandes himself.

[43] The reality of this matter however was what occurred here was more a mental health intervention, where on a prior day, the efforts of that intervention had not gone well. Thus, it seems to me that reparations for the harm done here, having regard to the specifics of this particular matter, can be dealt with by means of community service work within the terms of a probation order.

Sentence Imposed

[44] Thus, in the end, I conclude in the circumstances, that an appropriate sentence here is a conditional discharge and a period of two years on the following terms and conditions. In addition to the statutory terms, Mr. Fernandes will report in person to a probation officer immediately, and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in the supervision. He will cooperate with his probation officer, he will sign any release necessary to permit the probation officer to monitor his compliance and provide proof of compliance with any conditions as ordered by his probation officer. He will not possess any weapons as defined by the Criminal Code.

[45] He will attend and actively participate in all assessment counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for any reasons deemed appropriate. He will sign any release of information forms as will enable the probation officer to monitor his attendance and completion of any assessment counselling or rehabilitative programs and he will provide proof of his attendance and the completion of any assessment counselling or rehabilitative programs as directed. He will perform 50 hours of community service work at a rate scheduled to be directed by the probation officer but must be completed no later than the end of the 12th month of this order.

[46] Although I imposed only 50 hours of community service work, I appreciate that counsel for Mr. Fernandes suggested a far greater number of hours. While this might, on the face, seem to be appropriate, I have to balance what Mr. Fernandes needs to do over the next two years. Over the probation period, it is important that Mr. Fernandes continue with his counselling and to continue with his employment. These are the two primary matters that he must deal with, and if he does, I am satisfied that with the addition of the community service work I put into place, that the community will be protected and well served.

[47] I am open to counsel for any further suggestions with respect to terms or conditions of this probation order.

Justice H.I. Chisvin

Released: November 23, 2015