Court Information

Ontario Court of Justice

Date: May 2, 2019

Between:

Her Majesty the Queen

— AND —

Douvainn Dean

Before: Justice R. Maxwell

Heard on: April 24, 2019

Reasons for Judgment on Sentence released on: May 2, 2019

Counsel

T. DiMuzio — counsel for the Crown

G. Gross-Stein — counsel for Mr. Dean

MAXWELL J.:

I. Guilty Plea and Charges

[1] On April 24, 2019, Mr. Dean pled guilty to one count of robbery with a firearm, possession of a loaded prohibited firearm without a licence, contrary to s. 95(1) of the Criminal Code, possession of a firearm contrary to a prohibition order, contrary to s. 117.01(1) of the Criminal Code, and possession for the purpose of trafficking crack cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act ("CDSA").

[2] Mr. Dean appears before me today for sentencing on all counts.

II. Circumstances of the Offences

[3] The offences took place during the civic holiday weekend, on August 5, 2018. The long weekend brought many people to the downtown Toronto core for many events, including the Caribbean Festival (or Carabana), and a music concert.

[4] At approximately 1am, Anwar Thomas, an American tourist visiting Toronto, was walking in front of Union Station, having just withdrawn money from an ATM.

[5] Mr. Dean approached Mr. Thomas from behind and grabbed his money as well as the thick gold chain he wore around his neck. Mr. Thomas struggled with Mr. Dean. During the struggle, Mr. Dean pulled out and pointed a handgun at Mr. Thomas. Mr. Thomas continued to struggle with Mr. Dean.

[6] Mr. Dean began running eastbound on Front Street toward Bay Street. Mr. Thomas alerted special constables in the area of the robbery. One special constable observed the robbery and saw Mr. Dean running toward him, holding the gold chain in his right hand, and a small silver firearm in the other. The firearm appeared to be pointed at the constable. The special constable attempted to stop Mr. Dean. After a brief struggle, Mr. Dean was handcuffed.

[7] Toronto Police arrived on scene and took custody of Mr. Dean. A search incident to Mr. Dean's arrest resulted in police locating a conductive energy weapon, or taser, on Mr. Dean's person, as well as a quantity of 17.31g of powdered cocaine, 10.95g of crack cocaine, and $500 in cash. The firearm was a Colt PTF, 22 calibre handgun, with three rounds in the magazine.

[8] At the time of the offences, Mr. Dean was subject to an order made pursuant to s. 109 of the Criminal Code prohibiting him from possessing any weapons.

III. Positions of the Parties

[9] Mr. DiMuzio, for the Crown, argues that Mr. Dean should be sentenced to a global sentence of 7 years, less any credit for pre-sentence custody.

[10] He suggests the sentence be broken down as follows:

[11] 5-year jail sentence on the count of robbery with a firearm;

[12] 1-year jail sentence on the count of possession of a firearm contrary to the prohibition order, to run consecutively to the robbery sentence;

[13] 3-year jail sentence on the count of possession of a loaded restricted firearm, to run concurrently to the robbery sentence; and

[14] 1-year jail sentence on the count of possession for the purpose of trafficking crack cocaine, to run consecutively to the robbery sentence.

[15] In addition, he seeks a s. 109 order for life and a DNA order.

[16] Mr. Gross-Stein submits that a global sentence of 5 years and 2 months is an appropriate sentence, less pre-sentence custody, and with additional credit for the days Mr. Dean spent in partial or full lockdown while at the Toronto South Detention Centre. Mr. Gross-Stein asks me to infer that Mr. Dean's 58 days under lockdown conditions had an impact on him, justifying additional consideration. He suggests the sentence be reduced by 2 months, the total number of days during which Mr. Dean was under partial or full lock-down.

[17] Mr. Dean served 263 days of pre-sentence custody, or 395 days on an enhanced basis of 1.5:1 credit. Therefore, after credit for lockdowns and pre-sentence custody, the remaining sentence would be one of 4 years.

[18] Mr. Gross-Stein argues that the Crown's position does not adequately account for the significant mitigating value in Mr. Dean's guilty plea, not only saving the Crown the time to run a preliminary hearing or trial, but also saving the Crown the cost of flying in a witness from out of the country.

[19] He further argues that Mr. Dean's personal circumstances warrant a lesser sentence than what the Crown seeks. Mr. Dean suffered a serious and lasting traumatic brain injury as a result of a car accident in 2014, which has caused a number of significant cognitive problems. Moreover, during his arrest on this occasion, he was struck in the head and sustained an injury requiring staples to his head.

[20] Mr. Gross-Stein argues that Mr. Dean has strong rehabilitative potential, having completed numerous courses while at the Toronto South Detention Centre.

[21] Finally, while Mr. Dean has a criminal record which includes related entries, he has no prior convictions for firearm offences. Further, a 5-year sentence is a significant jump from the longest sentence he has ever served, which was just over 2 years.

IV. The Circumstances of the Offender

[22] I did not have the benefit of a pre-sentence report in this case, but did draw a limited history from the medical records filed on sentencing. Mr. Dean is 23 years old. His parents emigrated from Jamaica, and he was born in Toronto. His father passed away from cancer in 2003 when Mr. Dean was only 8 years old. He was raised by his mother, with two siblings, in a neighborhood notorious for its high crime rates. His mother worked as a cashier.

[23] In June of 2014, when he was 18 years old, Mr. Dean was a passenger in a single vehicle accident. According to the history recorded in the medical records, the vehicle was fleeing police when it crashed into a wall. Mr. Dean was not wearing a seatbelt. He was able to get out of the vehicle, but collapsed a short distance away. He was intubated by emergency personnel at the scene.

[24] He suffered a serious traumatic brain injury which resulted in significant cognitive issues. He has memory decline, can become disorientated, he has difficulties with language comprehension and expression, he suffers from severe headaches, and has experienced mood changes, including depression and becoming agitated.

[25] The medical records indicate that, after the accident, during periods when Mr. Dean was incarcerated, he was involved in physical confrontations in jail. A cognitive assessment done over a year after the accident showed a decline in cognitive results, compared to the same assessment which was done shortly after the accident in 2014.

[26] Unfortunately, due to his repeated incarcerations, Mr. Dean has had little follow-up with specialists for his cognitive issues. The most recent medical records filed on the sentencing hearing are from November of 2015.

[27] Mr. Dean has a significant criminal record, which was filed as an exhibit on sentencing. I will highlight some elements of the criminal record in addressing the aggravating and mitigating factors.

[28] Most likely because of his periods of lengthy detention in youth facilities, Mr. Dean does not have a high school diploma. I was not provided with any details of any work history, but there was reference in his medical records to some experience working in labour jobs.

[29] Mr. Dean has made efforts, while in custody, to improve himself, by actively engaging in programs and courses available through the institution. Numerous certificates were filed confirming Mr. Dean's completion of a variety of courses, including programs to assist in addressing addiction issues, addictions he has developed while trying to manage his cognitive and neurological symptoms from the accident.

V. Sentencing Principles

[30] I begin with the most fundamental principles of sentencing set out in s. 718, 718.1 and 718.2 of the Criminal Code. Section 10(1) of the CDSA articulates similar sentencing principles.

[31] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a "just, peaceful and safe society". Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.

[32] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender. Further, a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances.

[33] All available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders.

[34] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[35] Possession of a prohibited, loaded firearm, particularly in a downtown urban centre, is a very serious offence. Protection of the public must be a predominant sentencing objective. The sentence I impose must denounce the dangerous conduct and address the harm Mr. Dean has caused to the complainant, Mr. Thomas, and to society, by his conduct.

[36] To paraphrase the words of Justice Molloy in R. v. Ferrigon, loaded concealed handguns which are carried in a public place is an inherently dangerous thing. By carrying a loaded handgun, you indicated a readiness to shoot someone.

[37] Similarly, courts have consistently emphasized the need for deterrence, both specific and general, and denunciation, in sentencing for offences involving illicit drug trades, due to the well-recognized harm that drugs pose on our society, and the financial draw presented by drug trafficking: R. v. Cunningham, [1996] O.J. No. 448 (Ont. C.A.); R. v. C.N.H., 62 O.R. (3d) 564 (Ont. C.A.).

[38] There can be no question, in these circumstances, that specific and general deterrence, as well as denunciation, must be given primary consideration.

[39] It is important to note however, as with any sentencing, that I must also be mindful of the principle of rehabilitation.

VI. Aggravating and Mitigating Factors

[40] There are a number of aggravating circumstances in this case.

[41] First, Mr. Dean brought a loaded firearm to a heavily populated area of downtown Toronto. That conduct is inherently dangerous. However, his conduct went further than that. He drew the firearm out in the course of robbing another person. He did so in the midst of hundreds if not thousands of people gathered in the area of Union Station on the civic long weekend. He still had it out when he struggled with the special constable. Each of these people were at risk of being seriously injured or killed by Mr. Dean. Indeed, anyone in the area was at risk of injury or death.

[42] Second, Mr. Dean's criminal record is aggravating. He has related entries for drug trafficking and violent offences, including, as a youth, using an imitation firearm and robbery, as well as numerous convictions for possession of substances for the purpose of trafficking, aggravated assault, and many breaches of court orders, as an adult.

[43] Third, Mr. Dean was subject to a probation at the time of these offences, arising out of his conviction in 2017 for aggravated assault.

[44] Fourth, the possession of a firearm, in combination with possession of a controlled substance for the purpose of trafficking, suggests Mr. Dean is involved in the drug trade, increasing the risk to public safety.

[45] On the other hand, there are mitigating factors in this case as well. Mr. Dean has entered a guilty plea, which I accept as a genuine expression of his remorse.

[46] Further, I accept Mr. Gross-Stein's submission that Mr. Dean's guilty plea carries increased mitigating value, given that the Crown would have been required to obtain a witness from out of the country, and no doubt numerous other witnesses, to prove its case.

[47] Second, Mr. Dean is a relatively youthful offender with at least some prospects of rehabilitation. He has made a concerted effort to improve himself by taking courses while in custody. His criminal antecedents tempers the impact that these efforts have on his overall prospects for rehabilitation, but he nevertheless has demonstrated an intention to begin to address his addiction issues, and develop greater life and professional skills in order to be a more productive member of the community.

[48] Third, I must take into consideration Mr. Dean's personal circumstances, in particular, his cognitive issues related to the accident. While there was no evidence of a direct causal link between Mr. Dean committing these offences and his cognitive or neurological problems arising from the car accident, I take into consideration that Mr. Dean has struggled with numerous, debilitating problems, including sleep loss, depression and mood changes, since the accident. His neurological issues certainly did not improve as a result of the physical fights he engaged in while in custody, or from the head injury he suffered on arrest during this incident. I accept that his health problems have, to some extent, contributed to his continuing criminal behaviour.

VII. The Appropriate Sentence

[49] In my view, the sentence that best balances the need for denunciation and deterrence, with the mitigating and aggravating factors, and that is proportionate to the gravity of the offence and Mr. Dean's degree of responsibility, is a global term of imprisonment of 5 years and 5 months.

[50] This sentence is at the low end of what I would consider to be a fit sentence. However, it is a very significant sentence for Mr. Dean, much longer than any sentence he has ever served. It also adequately takes into account Mr. Dean's personal challenges and allots appropriate weight to his guilty plea, which I consider to be a significant mitigating factor. It is also proportionate to the gravity of the offence and the terrible risk to the public's safety that Mr. Dean created by his conduct.

[51] Mr. Gross-Stein asks that I consider further credit for the 58 days of either full or partial lockdown at the South Detention Centre. He filed a chart setting out the dates during which the institution was under either partial or full lockdown, and the reason for the lockdown. For the majority of days, the lockdowns related to staffing issues.

[52] The Ontario Court of Appeal's decision in R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (Ont. C.A.), provides that, in appropriate circumstances, particularly harsh presentence conditions can provide mitigation apart from and beyond the 1.5 credit. Both the conditions of the presentence incarceration and the impact of those conditions on the accused should be considered in assessing whether the circumstances dictate additional credit or mitigation.

[53] The defence did not call any evidence to provide particulars of the lock down conditions, as the supervisor of the South Detention Centre had been subpoenaed to another court on the date of this sentencing hearing. Nor was any evidence called as to the impact of the lockdowns on Mr. Dean, either by viva voce evidence, or through an affidavit.

[54] Mr. Gross-Stein argues that direct evidence is not required and that impact can be inferred from the fact that Mr. Dean was under lockdown conditions for 58 days spread over some number of months.

[55] I agree that, in some circumstances, impact can be inferred, such as in the case of R. v. Innis, 2017 ONSC 2779 (Ont. S.C.), where Justice Forestell had evidence that the accused had been given only 59 days of fresh air over 218 days in a detention centre, and that he was confined to a cell for 24 hours a day 214 times. She found, based on this evidence, that the lockdowns had an impact on the accused, and that direct evidence from the accused about the impact was not required.

[56] I also agree with the sentiment expressed by many judges, including Justice Goldstein in R. v. Jama, 2018 ONSC 1252 (Ont. S.C.), at para. 20, that lockdowns arising from staff shortages, and even those arising from security reasons, should not be seen as "just the price to be paid" by those in custody.

[57] In this case however, there is a complete absence of evidence about the conditions of the lockdown, or the impact of the lockdowns on Mr. Dean. I cannot, on the basis of the evidence before me, justify additional credit to be deducted from the overall sentence above and beyond the 1.5:1 credit, which will be allotted.

VIII. Conclusion

[58] Mr. Dean, if you could please stand.

[59] On the count of robbery with a firearm, the sentence is one of 4 years, less pre-sentence custody of 263 days, or the equivalent of 395 days, noted on that count, leaving a remaining sentence on the robbery with a firearm of 2 years and 11 months.

[60] There will be a 1-year consecutive sentence on the count of possession of a firearm contrary to a prohibition order.

[61] There will be a 3-year concurrent jail sentence on the count of possession of a loaded restricted firearm.

[62] Finally, there will be a 6-month consecutive jail sentence on possession for the purpose of trafficking crack cocaine.

[63] Therefore, the total sentence remaining is one of 4 years and 5 months, or 53 months.

[64] An order is also made under s. 109 of the Criminal Code prohibiting Mr. Dean from possessing any firearms, cross-bow, restricted weapon, ammunition or explosive devices for life.

[65] There will also be an order under s. 487.051 of the Criminal Code authorizing the taking of a sample of a bodily substance from Mr. Dean that is reasonably necessary for the purpose of forensic DNA analysis. The counts related to the firearm are all primary designated offences.* On the possession for the purpose of trafficking crack cocaine, a secondary designated offence, I have considered and weighed Mr. Dean's privacy interests and have concluded that the minimal intrusion into Mr. Dean's privacy is justified in the circumstances of this case.

[66] I will conclude by echoing the comments of Mr. Gross-Stein that I hope Mr. Dean will have access to the level of treatment and specialty medical services he requires while in the penitentiary to better identify and address his ongoing medical issues. It is essential, in my view, to Mr. Dean's long-term prospects for rehabilitation, that he get the medical attention and therapy he clearly requires to address the serious traumatic injuries he has suffered.

[67] I thank both counsel for their excellent advocacy and professionalism throughout this matter. Mr. Dean, I wish you good luck.

Released: May 2, 2019

Signed: Justice R. Maxwell

*Correction: On the counts of possession of a prohibited or restricted firearm with ammunition (s. 95) and possession of a firearm contrary to a prohibition order (s. 117.01), the DNA order is made pursuant to s. 487.04(a), both offences being secondary designated offences.