ONTARIO COURT OF JUSTICE
DATE: 2024 06 14 COURT FILE No.: Central West Region (Brampton) 998 19 2021
BETWEEN:
HIS MAJESTY THE KING
— AND —
Shem Bent
Before: Justice J. De Filippis
Heard on: April 16, 2024 Reasons for Sentence released on: June 14, 2024
Counsel: Ms. C. Tarjan........................................................................................ counsel for the Crown Mr. A. Weisberg............................................................................. counsel for the accused
De Filippis, J.:
INTRODUCTION
[1] The defendant was found guilty, after trial, that “on the 19th day of January 2019 in the City of Brampton with intent to wound Tonika Charles, [he] did discharge a firearm contrary to s. 244(1) of the Criminal Code”. My reasons are reported at R v Bent 2024 ONCJ 70.
[2] Along with the helpful submissions by both lawyers, I have the benefit of a presentence report. Victim impact statements were not provided. The Crown presented an affidavit with statistics related to gun crimes. The Defence presented a document describing a non-restricted rifle. No objection was taken by either side to the presentation of this material. The Defence also filed the Expert Report on Crime, Criminal Justice and the Experience of Black Canadians in Toronto, Ontario.
OFFENCE
[3] The events in question commenced at a bar called “The Spot”. A dispute within the tavern continued outside in the parking lot. Ms. Charles, and her partner, Mr. Ingram, were in the bar. They were not involved in the dispute and decided to leave when it began. They entered a motor vehicle, a white Hyundai, driven by the Ms. Charles. An unknown man confronted them. This frightened Ms. Charles and she accelerated away. In doing so, she stuck a car parked beside her, a white Acura motor vehicle. The defendant came out of the bar and saw the damage to his Acura. He entered this vehicle and pursued Ms. Charles.
[4] Ms. Charles was not familiar with the City of Brampton. When she reached the end of the parking lot, she stopped to program her destination into her GPS to calculate her route home. While doing so, the defendant pulled up beside her in the white Acura. She observed something in his hand. Fearing it was a gun, she drove away. The defendant followed. At the next intersection, she made an abrupt U-turn. The defendant followed and pulled his car beside her. Ms. Charles stopped driving. The defendant told her that she had damaged his car. The latter offered to exchange insurance. The defendant rejected this and demanded cash. Ms. Charles saw something in his hand that appeared to be a gun. She accelerated away from the scene. The defendant followed. Ms. Charles lost control of her vehicle and collided with a tree in a residential neighbourhood. The defendant arrived at this scene and fired shots at her vehicle.
[5] Ms. Charles described what happened after she fled from the defendant the second time, as follows:
Alex [Ingram] was freaking out. I think he dropped his phone [in the car]. I was screaming. We both were. I was [driving] in and out of streets. I was lost. The white car was following. I got back onto a main street and made a quick right turn at a green light at a big intersection. I spun out and ended up on the opposite side of the road. I ended up hitting a tree. I hit my head and fell back in my seat. There lots of dust and smoke and the smell of gas. We rant from the car on a back street behind somebody’s house. When I crashed into the tree he started shooting with his gun. I could hear it – pop, pop, pop. I heard gunshots while in the car. I was born and raised in Scarborough, one thing I know is gun shots.
[6] The front end of the white Hyundai was damaged, both front tires deflated, and the air bags had been activated. There was a bullet hole in the lower portion of the rear passenger door. The bullet had penetrated the outer panel, but not the inner panel and was found at the bottom of the door. Shell casings were on the roadway. All were 9 mm. Some were silver coloured; others were gold coloured. After the shots were fired, the complainant and Mr. Ingram fled on foot.
THE NATURE OF THE FIREARM
[7] In my reasons for finding the defendant guilty I did not specifically say whether the firearm was restricted or prohibited. This became an issue on sentencing because the mandatory minimum sentence for discharging a firearm with the intention to wound is 5 years (for a first offence) if a restricted firearm or prohibited firearm is used in the commission of the offence. The mandatory minimum sentence of 4 years when it is not restricted or prohibited was removed by an amendment to the Code on November 17, 2022. The maximum sentence in either case with respect to this defendant is up to 14 years in prison.
[8] Defence counsel submits that it has not been proven beyond a reasonable doubt that the firearm in this case is restricted or prohibited because a firearm was never found, and Ms. Charles did not clearly say that the defendant had a handgun. Counsel filed a document describing the Tavor X95 Rifle. This is classified as non-restricted and can fire 9 mm rounds. It is described as 28.125 inches in length and with a weight of eight pounds. The picture of the rifle is reproduced below.
[9] The Crown argues that the only reasonable inference to be drawn from the testimony of Ms. Charles is that the defendant fired the 9mm rounds from a handgun. Counsel points out that “She talked about the suspect going into his jacket, like he’s about to pull a gun (transcript 2 - pages 13, 28); that he started waving a gun at them (transcript 1, p 7), that he was following them in his car while and showing / waving the gun (transcript 1, p 10, 17; transcript 2, p 13-14). The Crown submits this could only be done with a handgun, and certainly would not be possible with a non-restricted shotgun or rifle.
[10] I agree with the Crown. Ms. Charles testified she saw a handgun being waved at her. When pressed about this in cross-examination she said, “it could have been an imitation, it could have been anything”. The rifle depicted above was not put to her at trial. [1] Nothing Ms. Charles said suggests she saw that rifle. She would not have said she saw a handgun or imitation thereof because the rifle is obviously not a handgun, and it could not have been handled in the manner she described. That Ms. Charles added that, “it could be anything” does not trouble me. She was simply expressing frustration at being questioned about why she stopped to talk to the defendant after seeing him wave what she thought was a handgun.
OFFENDER
[11] The following information is taken from the presentence report prepared for this sentence hearing:
Shem BENT, hereinafter referred to as the subject, is a 29-year-old first time offender. The subject reported he was born in Toronto, ON and was raised in the Lawrence and Keele area until the age of four when his family relocated to Brampton, ON where they currently remain. The subject stated he is the youngest of four children produced from his parent’s union and he also has seven paternal half- siblings. The subject described a positive upbringing free from all forms of abuse or major concerns within the familial home. He stated his father owns property as well as a business in Jamaica and so the family would travel to Jamaica for two to four weeks every year during the summer months while growing up. The subject noted his father is currently in Jamaica and has been living there for approximately one year. He advised he father often comes “back and forth” between Canada and Jamaica as he manages his businesses and property in both countries.
The subject reported his mother passed away from cancer in 2016. He stated he was very close with his mother and her passing was difficult on himself and the family. The subject advised he maintains positive relationships with all his immediate family members, and noted he works with his brother and uncle at their family owned autobody shop in Brampton, ON. Ms. Shauna BENT, the subject’s sister, confirmed they experienced a positive upbringing and stated they have always had a “strong family structure.” Ms. BENT advised their mother’s passing was especially difficult on the subject as he is the youngest sibling and was a “momma’s boy.”
The subject reported he is currently in a common-law relationship with Ms. Casandra DEAN. He stated they have been dating for approximately six years and have been living together for the past four years. The subject advised he has one biological child with Ms. DEAN, a two-year-old son who resides with them full-time. He indicated Ms. DEAN also has four children from a previous relationship who reside with them as well. The subject described his relationship with Ms. DEAN in positive terms. Ms. DEAN confirmed this information. Ms. DEAN described the subject as the “best thing that has ever happened to me” and noted he is “excellent” with the children. All of the collateral contacts interviewed for this report described the subject’s relationship with Ms. DEAN in positive terms.
The subject reported he has achieved his grade eleven education. He noted he attended one high school in Brampton, ON and estimated he was suspended “a few” times for truancy and “uniform infractions.” The subject stated he obtained “average marks” in school and advised he did not repeat any credits. He denied ever being diagnosed with a learning disability or being placed in any kind of special education classrooms. The subject stated he dropped out of school in his second semester of grade twelve as this was when his mother became “very ill” with her cancer diagnosis and he “wanted to be there for her.” He reported he only has two credits remaining to complete his high school education. He noted he went back to alternative school in 2018 to try to complete his education however he “got lazy” and “didn’t show up” and dropped out after one semester. The subject advised he would like to complete his high school education in the future and explore apprenticeship opportunities as a mechanical engineer.
[12] The defendant told the author of the presentence report that he is employed full time at his families’ autobody shop doing “detailing” work in Brampton. He is a moderate consumer of alcohol and marihuana. The report continues as follows:
The subject presented as polite, respectful, and engaged throughout the interview process. The subject readily provided information and attempted to give as much detail as possible for any questions asked of him. He described himself as a “funny, loving, caring and enthusiastic” person. The subject stated his current charge before the Court is a result of him being “young and dumb” and he described his actions as being an “in the moment decision.” The subject advised he was the primary owner of the firearm. He noted he was in possession of the firearm for approximately two weeks before his current offence occurred, and he purchased the weapon “off the streets.” The subject reported he bought the firearm because he “thought it was cool.” This writer was unable to connect with the victims of this offence despite multiple attempts. The subject stated he “regrets my actions” and the “trauma” he may have caused to the victims. He felt he has been treated fairly by the Court to date and noted he “respects the decision of the Court.”
[13] Ten individuals submitted letters of support for the defendant. Some of those individuals were also interviewed for the preparation of the presentence report. The following excerpt from that report reflects the views of all letter writers about the character of the defendant:
Ms. Shauna BENT described the subject as a “loving, caring and genuine” person. She recalled being in “disbelief” when learning about the subject’s charge currently before the Court and stated “that’s not him” in relation to the offence. Ms. BENT had no explanation as to why the subject may have felt the need to be in possession of a firearm, however she noted the subject was associating with the “wrong crowd” at the time and does not believe the subject could have committed the offence before the Court as it is “not his character at all.” She reported no issues with the subject while he has been on bail and noted his time at home has “changed him for the better” and they have gotten closer as a family. Ms. BENT reported the subject has never been exposed to violence or firearms in the past. She advised the subject would benefit from grief counselling to address the passing of their mother.
Mr. Carl BENT stated he is aware of the subject’s charge currently before the Court, however he “doesn’t know anything about a firearm” and he has never known the subject to possess a firearm. Mr. BENT described the subject as a "good kid” who has a good work ethic and maintains positive relationships with his family members.
Ms. DEAN advised the subject is a “genuine and caring” individual. She recalled being “very shocked” when learning about the subject’s offence currently before the Court. Ms. DEAN reported she met the subject after his charges occurred, however she does not see the subject as a “violent person” and reported she has no explanation as to why he may have felt the need to possess a firearm. Ms. DEAN stated she has no concerns over the subject’s peer associations within the community, she described him as a “homebody” and reported all of the subject’s friends she has met are positive influences for the subject. Ms. DEAN suggested the subject would benefit from counselling to address any lingering grief experienced from his mothers passing as he is “not very outspoken” with personal issues.
[14] The defendant read a prepared statement to the Court. He said this offence occurred five years ago and he is not the same person. He understands he must go to jail because he endangered the community. He added that he embarrassed his father, let down his mother, and looks forward to being a good father.
CROWN SUBMISSIONS
[15] The Crown submitted that the appropriate sentence is 7 years in custody. The Crown relies on these aggravating factors: The firearm was used in a public place, thus undermining the community’s sense of safety and freedom. The possession of the firearm was deliberate and was not momentary. The prevalence of gun crime in the community. With respect to the last point, the Crown filed an affidavit Ms. Lisa Smith, a Criminal Intelligence Analyst with the Peel Regional Police. The statistics reported in that document include the following for the region: In 2016 the police investigated 64 shootings in which 291 rounds were fired. In 2019, the year in which the events in question occurred, the police investigated 135 shootings, in which 770 rounds were fired. As of the first quarter of this year, there have been 35 shootings in which 293 rounds were fired.
[16] The Crown suggested the range of sentence for this type of offence has been established by the Court of Appeal by decisions in 2016 and 2019 (citations omitted):
In R v Bellissimo, the Ontario Court Appeal first set out a range of 7-11 years for shootings or attempted shootings. Bellissimo fired shots into a restaurant, striking two people and causing serious injury to one of them. Another shot nearly killed a third victim. After trial, Bellissimo was acquitted of attempt murder but convicted of unspecified “endanger counts” – presumably discharge with intent or aggravated assault. He was sentenced to 8.5 years jail. The Court of Appeal varied the sentence to 10 years after the Crown appealed and confirmed a 7-11-year range for “these kinds of serious gun related offences” was 7-11 years.
In R v Dhaliwal the offender, 23, was convicted by a jury of reckless discharge after the gun he was holding was fired during a dispute. The bullet was lodged in the ceiling of the strip mall where the dispute occurred. No one was injured. He had a lengthy criminal record as a youth and some entries on his adult record – although no prior convictions for firearms. Dhaliwal was initially sentenced to seven years for the discharge and one-year consecutive for breaching a firearms prohibition.
On appeal, the Court of Appeal recognized that the facts of this case were less serious that what was described as “serious gun-related offences” in Bellissimo. There was emphasis that the bullet was lodged in a ceiling and no injury had occurred. The sentence was accordingly reduced below the 7-11-year range to 6 years for the reckless discharge. However, the consecutive 12- month term for breaching the prohibition remained, resulting in a global sentence of 7 years.
DEFENCE SUBMISSIONS
[17] The Defence position assumes acceptance of the argument that the Crown did not prove the defendant discharged the 9 mm rounds from a restricted or prohibited firearm. The Defence argued that a 4-year sentence is appropriate. Since my finding means the mandatory minimum penalty applies, I proceed on the basis that Defence position is 5 years in custody. In any event the Defence submission is anchored in the fact that the defendant is a youthful first offender with good prospects going forward as well as what counsel called “the Morris factors”. In this regard, counsel reviewed the positive presentence report, letters of support, and the decision in R v Morris 2021 ONCA 680. With respect to the latter, counsel noted that the defendant said he purchased the firearm because he thought it was “cool”. This, it is said, “links to the Morris factors as to what is happening in the community”. This mitigates personal responsibility.
[18] The Defence acknowledges that the Court of Appeal has established a range of 7 to 11 years for this offence but, relying on R v Haque 2019 ONCJ 466, argues that this applies in cases where a person is injured. In Haque, one of my colleagues imposed a sentence of 5.5 years on a young man who discharged a firearm without injuring anyone. However, in the following exchange of gunfire the accused was injured. Moreover, he pleaded guilty.
[19] In addition to credit for 12 days spent in presentence custody, the Defence asked that I consider the fact that the defendant has been on bail for 5 years with terms that included a curfew. Counsel suggested a credit of 1 month for each year.
ANALYSIS
[20] In imposing sentence, I am guided by Part XXIII of the Criminal Code. The following provisions are particularly important:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, (v) evidence that the offence was a terrorism offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and (vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
[21] Proportionality means that the severity of a sentence will depend on the seriousness of the offence as well as the moral blameworthiness of the offender; see R v Lacasse, supra. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield, 2019 BCCA 22.
[22] Sentencing judges may properly consider the prevalence of gun crime in sentencing offenders for firearm-related offences. As the majority of the Supreme Court of Canada explained in R. v. Lacasse 2015 SCC 64, the prevalence of a crime in a community is a relevant factor insofar as it may signal a need to denounce and deter such conduct (at para 89):
Even though the Criminal Code applies everywhere in the country, local characteristics in a given region may explain certain differences in the sentences imposed on offenders by the courts. The frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge….
[23] In Morris, the Court of Appeal for Ontario noted that social context evidence may explain the commission of the offence which mitigates the offender’s personal responsibility and culpability. This evidence can lead to a sentence that gives less weight to the specific deterrence and greater weight rehabilitation. Courts should take judicial notice of the existence of anti-Black racism in Canada admit evidence directed impact of that racism on the offender’s background and circumstances.
[24] Morris makes clear that social context evidence may be relevant in determining the moral blameworthiness of an offender. Such evidence is admissible to describe the existence, causes, and impact of anti-Black racism and its specific effect on an offender. However, it cannot be used to diminish the seriousness of the offence.
[25] I agree with the Defence that Morris holds that there should be a generous gateway for the admission of objective and balanced social context evidence. I would add that this generous approach is framed by these comments:
[96] Some of the interveners submit that Hamilton, at para. 137, wrongly requires a direct causal link between the offence and the negative effects of anti-Black racism on the offender before anti-Black racism can be seen as mitigating personal responsibility. We agree that the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing. As one counsel put it, a young offender does not have to show a causal connection between age and the offence before age will be treated as a mitigating factor.
[97] There must, however, be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue. Racism may have impacted on the offender in a way that bears on the offender’s moral culpability for the crime, or it may be relevant in some other way to a determination of the appropriate sentence. Absent some connection, mitigation of sentence based simply on the existence of overt or institutional racism in the community becomes a discount based on the offender’s colour. Everyone agrees there can be no such discount.
[100] It was open to the trial judge to find that the evidence of anti-Black racism was connected to, or played a role in, Mr. Morris’s strong fear for his personal safety in the community. That state of mind offered a mitigating explanation for Mr. Morris’s possession of the loaded, concealed handgun. Looked at in this way, evidence of anti-Black racism, which played a role in generating the fear that helps explain why Mr. Morris had a loaded gun, is akin, for the purposes of sentencing, to evidence that Mr. Morris had been terrorized by somebody in the community and had armed himself because he genuinely feared that person. In either scenario, the offender offers an explanation for possessing a loaded gun, which, to some extent, ameliorates the offender’s moral responsibility for that choice…
[26] There is nothing before me to suggest that racism, systemic or otherwise, played any role in this offence. The defendant is not like Mr. Morris. The defendant obtained the gun because he thought it was “cool”. Whatever may be going on “in the community”, to use Defence counsel’s words, - and what, exactly, that community constitutes - the defendant’s explanation for possessing a loaded handgun, and firing at strangers, does not ameliorate his personal responsibility. As such, that the defendant is Black is not relevant to my decision. There is, however, another personal characteristic that must be considered.
[27] The defendant is a first offender. This offence occurred 5 years ago. At the time, he was a youthful first offender. In this regard, I note that in R v Arbuthnot 2009 MBCA 106 it was held that “youthful” means a person aged 25 years or younger.
[28] In R v Priest 1996 ONCA 1381 it was held that in the case of a first offender, the Court should explore all other dispositions before imposing a custodial sentence and that if a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. This principle of restraint with respect to young first offenders was reiterated by the Court of Appeal for Ontario in R v Randhawa 2020 ONCA 668. Nevertheless, as noted in R. v. Brown, 2015 ONCA 361,
….while individual deterrence and rehabilitation are the primary objectives in sentencing a first offender, the importance and weight of other factors increase with the seriousness of the crime. This approach respects the fundamental principle of sentencing stated in s. 718.2 of the Criminal Code: ‘a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender’.
[29] The seriousness of the present offence cannot be overstated. The defendant was involved in a car chase, during which he demanded money and waved a firearm, until the victim’s car crashed into a tree. The defendant then fired repeatedly at the victim’s vehicle with one bullet piercing the outer rear door. The frantic victims fled on foot.
[30] Gun crime is pressing social problem. As the Court observed in R v Ferrington, [2007] O.J. No. 1883 (Ont. SCJ),
Guns are dangerous. Handguns are particularly dangerous. Loaded, concealed handguns are even more dangerous. A person who loads a handgun with bullets and then carries that handgun, concealed on his person, into a public place is by definition a dangerous person. Handguns are used to shoot people. A person who carries a loaded handgun in public has demonstrated his willingness to shoot another human being with it. Otherwise there would be no need to have loaded it. That person is dangerous. He is dangerous to those with whom he associates; he is dangerous to the police and other law enforcement personnel; he is dangerous to the members of his community; he is dangerous to innocent bystanders…he is dangerous to a way of life that is treasured in Canada and to which all residents of Toronto are equally entitled…
[31] Ferrington concerned a crime in Toronto. Of course, all Canadians are entitled to the treasured way of life referenced by the Court. In Peel Region, gun crime has increased in the years following the comments in Ferrington.
[32] The defendant’s moral blameworthiness is high. Everything about his misconduct could have resulted in injury or death. His actions were not spontaneous; he had time to reconsider and stop. He did not. He did all this because a stranger inadvertently damaged his car. Moreover, the defendant’s background is not marked by the dysfunction that informs, and often mitigates, the criminality of many others who appear before me for sentencing: He benefited from a stable and loving family. There are no mental health or substance abuse issues at play. He was not raised in poverty.
[33] The following mitigating factors are important: The defendant is a youthful first offender. He now understands the wrongfulness of his conduct. He has the support of friends and family. In these circumstances, his prospects for rehabilitation are good. This must temper the sentence.
[34] Having regard to the foregoing considerations, a proportionate sentence would be 6 years in jail. There is a final mitigating factor. I agree with Defence counsel that the 5 years spent on bail, while on a curfew, and without further trouble, should be reflected in the sentence. This is the “Duncan Credit”.
[35] In R. v. Marshall, 2021 ONCA 344, the Court of Appeal for Ontario said the following:
The “Duncan” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
[36] The 12 days presentence custody, enhanced by the “Summers Credit” amounts to 18 days. Taking this into account, along with the Duncan Credit, I conclude the appropriate sentence is 5 years and 6 months in jail.
[37] Discharging a firearm with intent under s. 244(2)(b) carries a mandatory s. 109 firearms prohibition order and a compulsory DNA order. The 109 order will be for life. I also impose a section 743.21 non-communication order with respect to Tonika Charles and Alexander Ingram. The victim fine surcharge will apply.
Released: June 14, 2024 Signed: Justice J. De Filippis
Footnotes
[1] The defendant was represented at trial by another lawyer, not Mr. Weisberg.