ONTARIO COURT OF JUSTICE
DATE: February 26, 2025
BETWEEN:
HIS MAJESTY THE KING
— AND —
BRIAN O’DONNELL
Before Justice John North
Reasons for sentence, delivered orally on February 20, 2025
Written reasons released on February 26, 2025
Ian Sunderland.......................................................................................... counsel for the Crown
Christian Pearce................................................................................. counsel for Mr. O’Donnell
INTRODUCTION
[1] Following a preliminary inquiry, Mr. O’Donnell re-elected to be tried in the Ontario Court of Justice.
[2] He pleaded guilty to one count of aggravated assault contrary to section 268 of the Criminal Code and one count of discharging a prohibited firearm contrary to section 244(2)(a) of the Criminal Code.
[3] Both offences occurred on July 31, 2023.
[4] The victim was Lacramioara Flanagan.
[5] The defence and the Crown agreed that in determining the appropriate sentence, in addition to the contents of the Agreed Statement of Facts, I could consider the evidence that I heard during the preliminary inquiry. Ms. Flanagan was a witness at the preliminary inquiry.
AGREED STATEMENT OF FACTS
[6] 33 Eastmount Avenue, Toronto, is a high-rise apartment building located in a residential neighbourhood. The apartment building is operated by Capreit, a property management company. In July, 2023, Ms. Flanagan was employed by Capreit as the property manager for this building.
[7] The management office, where Ms. Flanagan worked, is on the ground floor of the building. The north side of the office has floor-to-ceiling windows to the street outside, and Ms. Flanagan’s desk was situated next to these windows. When she would sit at her desk, her back was to the windows.
[8] In July, 2023, Mr. O’Donnell lived by himself in unit 2404 at 33 Eastmount Avenue. This unit is on the 24th floor of the building.
[9] During the summer of 2023, Mr. O’Donnell came into conflict with the building management in relation to various issues. On July 19th, 2023, Ms. Flanagan attended at Mr. O’Donnell’s apartment to discuss these issues with him. When she arrived at unit 2404, Ms. Flanagan noticed that there was a decorative metalwork item attached to the front door of the unit. Ms. Flanagan considered this to be in breach of the building’s fire regulations, and removed the item from the doorway. Ms. Flanagan then returned to the management office, taking the decorative item with her.
[10] Ms. Flanagan and Mr. O’Donnell met in the management office. They had an argument about the above-mentioned issues. Mr. O’Donnell became upset with Ms. Flanagan. Mr. O’Donnell took the decorative metal item from her and threw it onto the floor in the office. Mr. O’Donnell left shortly thereafter.
[11] On July 31st, 2023, at approximately 7:01 AM, Mr. O’Donnell took the elevator from his unit to the ground floor of the building. He had with him a black coloured electric bicycle (“E-bike”). He was wearing shorts and a T-shirt. Mr. O’Donnell exited the building via the south-east exit and rode away on the E-bike.
[12] Shortly after 7:01 AM on this same date, Mr. O’Donnell entered the underground parking lot of the building, gaining entry via the car ramp. While inside the parking lot, Mr. O’Donnell retrieved a sawed-off shotgun, and shotgun shells. Mr. O’Donnell carried the shotgun, which was concealed in a bag, out of the parking lot. He rode away on the E-bike.
[13] At approximately 8:00 AM on the same date, Ms. Flanagan arrived at the building for work. She entered the management office and sat at her desk, with her back to the windows.
[14] At 8:17 AM, Mr. O’Donnell arrived at the north side of the building. He was riding the E-bike. Mr. O’Donnell stopped in front of the windows on the north side of the building, outside the management office. He was directly behind Ms. Flanagan, who was sitting at her desk. Mr. O’Donnell had changed his clothes. At this point, he was wearing black clothing. He was also wearing a black medical face mask.
[15] At that time, Mr. O’Donnell produced the sawed-off shotgun from a bag and shouldered it. He fired the shotgun once, directly at Ms. Flanagan. Mr. O’Donnell was standing approximately 10-12 feet away from Ms. Flanagan when he shot her. The shotgun pellets smashed through the window and struck Ms. Flanagan. She incurred injuries from the shotgun pellets to her right arm, left shoulder, left arm, left chest, and neck.
[16] Mr. O’Donnell intended to shoot Ms. Flanagan, and he intended to seriously wound her.
[17] The injuries caused to Ms. Flanagan by this shooting amount to wounding and maiming as set out in section 268(1) of the Criminal Code.
[18] Mr. O’Donnell placed the shotgun back into the bag and rode away on the E-bike.
[19] At approximately 10:15 AM, Mr. O’Donnell returned to the building on foot. He did not have the E-bike with him. He had changed his clothes and was now wearing the shorts and t-shirt that he had been wearing when he left the building earlier that morning.
[20] At approximately 1:08 PM, Mr. O’Donnell attended at XYZ Storage facility, which is located at 1 Laird Avenue, Toronto. Mr. O’Donnell rented an outdoor parking spot at this storage facility. Mr. O’Donnell unloaded the E-bike from his truck and placed it into a storage trailer that he had previously parked there.
[21] On August 1st, 2023, at approximately 10:57 PM, a Criminal Code search warrant was executed on Mr. O’Donnell’s residence. Mr. O’Donnell was the only person inside the unit before the police executed the warrant. He was arrested for attempted murder.
[22] During the search of the unit, a disassembled Winchester model 370 12-gauge single shot shotgun was located inside of a blue reusable shopping bag. This was the shotgun that Mr. O’Donnell used to shoot Ms. Flanagan. The shotgun was found in the closet of Mr. O’Donnell’s bedroom. The gun was not locked, and there was one 12-gauge shotgun round in the bag with the shotgun.
[23] The shotgun and the shotgun round were unsecured and carelessly stored in the residence.
[24] The shotgun was later examined by a qualified analyst, who determined it was a firearm as defined in section 2 of the Criminal Code. The shotgun had been sawn off - the barrel of the shotgun had been cut down in length. The qualified analyst concluded that the shotgun was a “prohibited firearm” as defined in section 84 of the Criminal Code.
[25] Mr. O’Donnell was not legally authorized to possess the shotgun or the shotgun cartridge.
THE OFFENDER
[26] I obtained information about Mr. O’Donnell from a pre-sentence report and a psychiatric report.
[27] Mr. O’Donnell is currently 61 years old.
[28] He was born in Toronto.
[29] He completed grade 11. He described himself as an average student.
[30] Mr. O’Donnell is single. He has never been married. He has no children.
[31] Mr. O’Donnell worked for 26 years with a municipal operation responsible for waste management, until he retired a few years ago.
[32] He has a criminal record. He has never previously been sentenced to a penitentiary term of imprisonment.
[33] In 1980, he was convicted of theft under $200; theft of an auto over $200 and dangerous driving. He received a suspended sentence and a three year probation order.
[34] In 1991, he was convicted of assault, and received a suspended sentence, with a two year probation order.
[35] In 1995, he was convicted of impaired driving, and was sentenced to a $650 fine and a one year driving prohibition.
[36] In 2000, he was convicted of impaired driving, and was sentenced to a $2000 fine, 18 months of probation and a driving prohibition of three years.
[37] His parents are no longer alive.
[38] Mr. O’Donnell told the author of the pre-sentence report that he was raised in a stable home environment without major trauma or neglect.
[39] His only sibling, his sister, passed away six years ago. She was 10 years older than him. Mr. O’Donnell and his sister did not get along with each other. Apparently, Mr. O’Donnell’s sister was hard on Mr. O’Donnell. According to Mr. O’Donnell, his sister was abusive and blamed him for many of the difficulties their family faced.
[40] Mr. O’Donnell’s cousin, Mike, recalled that Mr. O’Donnell, as a young child, always appeared “a bit slow” at learning new things. Mike was unaware of Mr. O’Donnell having any formal history of mental health problems. Mike had not noticed any recent changes or decline in Mr. O’Donnell’s cognition or functioning. Mike expressed surprise by Mr. O’Donnell’s offence. Mike was unaware of Mr. O’Donnell being violent in the past.
[41] While Mr. O’Donnell minimized his difficulty controlling his alcohol intake, there is evidence to support the conclusion that he has suffered from alcohol abuse issues, and he has related liver damage.
[42] Mr. O’Donnell suffered a shoulder injury when he was arrested by the police in this case.
[43] He did not report any other history of medical illness, head injuries or seizures.
[44] Mr. O’Donnell denied any history of psychiatric diagnosis, psychiatric hospitalizations or other treatment for psychotic issues.
[45] Mr. O’Donnell does not take any prescription medications.
[46] When asked about the offence, Mr. O’Donnell told the author of the pre-sentence report that Ms. Flanagan never liked him. He believed that she was picking on him. Mr. O’Donnell apparently thought that he was targeted by Ms. Flanagan in an effort to remove him from the building. When speaking with the doctor who prepared the psychiatric report (Dr. Paul Benassi), Mr. O’Donnell described Ms. Flanagan as “not very nice”. Mr. O’Donnell said that he was angry that Ms. Flanagan had evicted other residents of the building. When describing the offences to the psychiatrist, he said “it wasn’t the right thing to do” and “I shouldn’t have done it.” He stated that his intention when he committed the offences was to “scare” Ms. Flanagan, and to “teach her a lesson.”
[47] Mr. O’Donnell has been involved in hunting for years, and one of his relatives speculated that is the reason he had access to a firearm. Mr. O’Donnell told the doctor who conducted the assessment that he had owned the firearm for 15 to 20 years.
[48] Mr. O’Donnell denied using alcohol or any other substances on the date of the offences. He did not report experiencing depressed, elevated or irritable mood over the two weeks leading up to the offences. He also denied any specific stressors at the time, other than his frustration with Ms. Flanagan.
[49] Mr. O’Donnell described himself as an “easy going” person and denied having issues with anger or aggression.
[50] Dr. Benassi concluded that Mr. O’Donnell “meets the criteria for alcohol use disorder”.
[51] Dr. Benassi also concluded that Mr. O’Donnell is “likely to have an unspecified neurodevelopmental disorder.” A neurodevelopmental disorder is characterized by deficits in attention, memory, perception, language, problems solving or social interaction. Given that Mr. O’Donnell was able to maintain employment and live independently for years as an adult, it was Dr. Benassi’s view that the severity of Mr. O’Donnell’s deficits are “most likely to be mild or borderline.”
[52] Dr. Benassi was of the view that Mr. O’Donnell “may also meet criteria for an “unspecified neurocognitive disorder”. An unspecified neurocognitive disorder is characterized by a cognitive deficit with an underlying medical cause. It affects one or more cognitive domains such as memory and learning, executive functions, attention, and social cognition. Significantly, Dr. Benassi noted that there was no information to suggest that Mr. O’Donnell had recently experienced an observable deficit in his adaptive functioning.
VICTIM IMPACT STATEMENT
[53] A victim impact statement, dated September 14, 2024, was filed as an exhibit by the Crown on behalf of Ms. Flanagan. It described how Ms. Flanagan’s life has been impacted by the shooting.
[54] Ms. Flanagan divided her statement into four main areas:
- emotional impact;
- physical impact;
- economic impact; and
- fear for her security.
[55] I will review some of what Ms. Flanagan wrote under each of these headings.
[56] I will start first with “emotional impact”. Since the shooting, Ms. Flanagan was diagnosed with PTSD and major depression. She has “intense fear and anxiety” when she is outside her home. I note that during the preliminary inquiry, Ms. Flanagan testified that since the shooting she did not often leave her home. She has experienced anxiety and panic attacks when she sees a bicycle. She is unable to experience joy, and feels flat and indifferent. She feels a sense of worthlessness, as a result of losing her job. Her self-esteem has been affected, as she no longer has the feeling of accomplishment that she received from her job. She said that losing her job has made her feel “adrift and powerless.” She has also experienced rapid mood changes and finds it difficult to regulate her emotions. She has experienced nightmares and often dreams about being shot.
[57] Turning to the physical impact of the offences. Ms. Flanagan states that the shooting has impacted a number of areas of her body, “especially due to the bullet fragments that remain entrenched.” Ms. Flanagan states that, as of September 2024, there were 15 fragments that were still in her body. The fragments left her with numbness in her right hand. She has scars on her neck, chest, and both arms. She has seen a number of doctors and therapists to deal with her depression, anxiety and PTSD.
[58] I will next address the economic impact of the shooting. Ms. Flanagan states that losing her job and being on long term disability was “one of the hardest blows to handle.” Ms. Flanagan had to deal with an “immediate and severe” financial strain.
[59] Finally, Ms. Flanagan said that her sense of safety has been completely shattered, and that every day feels like she is in a battle against fear.
[60] Ms. Flanagan ended her statement by stating that despite the challenges that she faces, she is determined to reclaim her strength and find comfort in the support of her loved ones and the community.
POSITIONS OF THE PARTIES
Position of the Crown
[61] The Crown takes the position that the Court should impose a custodial sentence of 8 years, less credit for pre-sentence custody, harsh conditions of detention, and strict bail conditions.
[62] The Crown also requested a number of ancillary orders.
Position of the Defence
[63] The defence takes the position that the Court should impose a custodial sentence of 5 ½ years, less credit for pre-sentence custody, harsh conditions of pre-sentence custody and strict bail conditions.
[64] The defence is not opposed to the ancillary orders that were requested by the Crown.
THE PURPOSE AND PRINCIPLES OF SENTENCING, AND THEIR APPLICATION IN THIS CASE
[65] A sentencing judge must impose a sentence that reflects the fundamental purpose of sentencing and the relevant sentencing objectives and principles.
[66] The fundamental purpose of sentencing is to contribute to “respect for the law and the maintenance of a just, peaceful and safe society” by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct;
- to deter the offender and other persons from committing offences;
- to separate offenders from society, where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or to the community; and
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[67] The relevance and weight to be given to these objectives will vary depending on the nature of the crime and the circumstances of the offender.
[68] The objectives of denunciation and deterrence will usually dominate the other objectives when an offence is particularly serious: R. v. Hamilton and Mason, 2004 ONCA 5549, at para 103.
[69] There is no dispute that the offences before the Court are serious.
[70] In firearms-related cases, the sentencing objectives of general deterrence and denunciation are given priority: See R. v. Aden, 2025 ONCJ 3, at para 48.
[71] Courts in Ontario have consistently concluded that offences of this nature will not be tolerated and the punishment for committing them will be severe: Aden, at paragraph 48.
[72] In my view, deterrence and denunciation are the paramount sentencing considerations in this case.
[73] A determination of what constitutes a fit sentence requires a court to consider the life experiences of the person standing before them: R. v. Ipeelee, 2012 SCC 13, at para 75. See also R. v. Parranto, 2021 SCC 46, at para 44.
[74] However, factors that may mitigate an offender’s personal responsibility “cannot justify a disposition that unduly minimizes the seriousness of the crime committed”: Hamilton and Mason, at para 93.
[75] In this case, when determining the appropriate sentence, I have taken into account the opinion of Dr. Benassi that Mr. O’Donnell meets the criteria for alcohol use disorder, is likely to have an unspecified neurodevelopmental disorder and may also meet the criteria for unspecified neurocognitive disorder.
[76] Mr. O’Donnell is 61 years old. He is not a first offender. While rehabilitation is a relevant consideration in determining the appropriate sentence, it is not a paramount objective. As I have already stated, deterrence and denunciation are the paramount sentencing objectives in this case.
[77] Mr. O’Donnell has been subject to a bail order since February 20, 2024 and has not breached the conditions of that order. That is a relevant consideration when assessing rehabilitative prospects. Mr. O’Donnell has received the support of some members of his family, which – if it continues in the future – may potentially assist in his rehabilitation.
[78] Based on all the evidence – including what Mr. O’Donnell said to the authors of the PSR and the psychiatric report – it is my conclusion that he has little insight into the harm that he has caused and has limited remorse for the harm he caused to Ms. Flanagan.
[79] Given his age, and what I have found is both limited evidence of remorse and limited insight into the significant harm that he caused, I cannot conclude that Mr. O’Donnell’s rehabilitative prospects are strong.
[80] I will now turn to the fundamental principle of sentencing, which is proportionality. Section 718.1 of the Criminal Code provides that:
“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[81] The gravity of these offences is very high.
[82] The Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, paras 96-97 observed that maximum sentences help determine the gravity of an offence.
[83] Aggravated assault and discharging a prohibited firearm with intent are both offences that are punishable by imprisonment for a term not exceeding 14 years. With respect to the latter offence, in the circumstances of this case, there is a mandatory minimum sentence of five years imprisonment (see section 244(2)(a)(i) of the Criminal Code).
[84] Turning to Mr. O’Donnell’s degree of responsibility. Even after taking into account Dr. Benassi’s opinion that Mr. O’Donnell likely has one or more disorders that he has been dealing with – which potentially may have affected his judgment and decision making – in my view, Mr. O’Donnell’s degree of responsibility for the commission of these offences is very high. He carefully planned the commission of these offences, which involved a targeted attack on Ms. Flanagan.
[85] As previously stated, Ms. Flanagan testified at the preliminary inquiry. She was a credible witness. In my view, there is no reasonable basis to conclude that Ms. Flanagan intentionally provoked or annoyed Mr. O’Donnell. Ms. Flanagan was simply doing her job, which included ensuring the safety and well-being of everyone in the building.
[86] While proportionality is the fundamental principle of sentencing, other principles found in s. 718.2 must also be considered when determining the appropriate sentence, including:
- a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
- a court must take into account evidence that the offence had a significant impact on the victim; and
- a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[87] In this case, Mr. O’Donnell’s guilty plea is a mitigating factor.
[88] The mitigating effect of a guilty plea will vary in weight from case to case. A guilty plea where there is a genuine issue for trial may be worthy of more weight than a guilty plea in circumstances where the Crown’s case is very strong: R. v. Lynch, 2022 ONCA 109, at para 20. A guilty plea in a case where the trial may take a significant amount of court time may be worthy of greater weight than a case in which the trial would last a day or two: Lynch, at para 20. Mr. O’Donnell’s guilty plea saved significant resources in the Superior Court of Justice.
[89] Mr. O’Donnell did not plead guilty at an early stage of the process. He pleaded guilty after Ms. Flanagan testified at the preliminary inquiry.
[90] In assessing the weight that should be given to the guilty plea, I have taken into account that the Crown’s case was very strong.
[91] As I have already stated, it is my conclusion that Mr. O’Donnell is not very remorseful for the harm he caused to Ms. Flanagan.
[92] I view the guilty plea in this case to be worthy of medium weight.
[93] In my view, the causal link between the commission of these offences and the psychiatric disorders identified by Dr. Benassi is not clear.
[94] Furthermore, while Mr. O’Donnell has some cognitive limitations, he was clearly capable of planning this attack and carrying out his plan.
[95] In my view, Mr. O’Donnell’s psychiatric disorders or cognitive limitations are not significant mitigating factors.
[96] There was no evidence that Mr. O’Donnell was under the influence of alcohol or drugs when he committed these offences.
[97] I do not view the injuries that Mr. O’Donnell suffered when he was arrested as a significant mitigating factor. Based on the evidence that I heard during the preliminary inquiry, the use of force by the police, in these circumstances, was reasonable.[^1]
[98] There are a number of aggravating factors, and they include:
- The pre-meditated nature of the offences, which involved a targeted attack on Ms. Flanagan. Mr. O’Donnell took steps before and after the commission of the offences to avoid detection.
- Mr. O’Donnell used a prohibited weapon to shoot Ms. Flanagan.
- Mr. O’Donnell intended to shoot Ms. Flanagan and intended to seriously wound her.
- Ms. Flanagan was defenceless. She had her back to Mr. O’Donnell. He was 10-12 feet from Ms. Flanagan when he shot her.
- There was significant physical, emotional and financial harm caused by Mr. O’Donnell. The shooting caused profound and long-lasting harm to Ms. Flanagan.
[99] While Mr. O’Donnell is not a first offender, his other offences are dated and unrelated. I do not view his criminal record as a significant aggravating factor.
Firearm Offences and Range of Sentence
[100] In R. v. Lacasse, 2015 SCC 64, at para 89, the Supreme Court of Canada stated that “the frequency of a type of offence in a particular region can certainly be a relevant factor for a sentencing judge.”
[101] In R. v. George, 2023 ONCJ 298, at para 8, Justice Fraser noted that in recent years there has been a dangerous increase in gun crimes in Toronto.
[102] Crimes involving firearms represent a “grave danger to Canadians”: R. v. Nur, 2015 SCC 15, at para 1.
[103] Illegal firearms have been described by courts as a “scourge on our society”: George, at para 8; R. v. Doucette, 2015 ONCA 583, at paras 59-60.
[104] As Justice Fraser stated in George at para 9, “The Courts must demonstrate in clear terms that our society will not tolerate the use of firearms in our streets and communities”.
[105] The use of guns in the commission of offences can only be deterred by the “imposition of exemplary sentences”: Doucette, at paras 59-60; George, at para 9.
[106] In R. v. Bellissimo, 2009 ONCA 49, the Ontario Court of Appeal established a range of sentencing for dangerous firearm related offences of 7 to 11 years.
[107] In Aden, at para 57, Justice Jones recently observed that a review of the authorities demonstrates sentences for similar offences “may deviate from this established range, running as low as five to six years, and, in some cases, as high as 12 years or more.” That is not surprising, as sentencing is an individualized exercise, and sentencing ranges are not meant to handcuff the court. There will “always be situations that call for a sentence outside a particular range”: Lacasse, at para 58.
[108] In the case at bar, counsel provided me with a number of authorities, which I have reviewed and considered.
[109] I have also considered the thorough review of the sentencing caselaw of similar offences that Justice Jones recently conducted, at paras 56 to 78, in Aden.
[110] In my view, the sentencing authorities provided to the court by the defence are factually distinguishable for a number of reasons from the facts in the case at bar. Having said that, there are almost always distinguishing facts and features between a case at bar and previous cases. Every case is unique, and sentencing is an individualized process.
[111] The following features of this case, in my view, make this case significantly different from the authorities that the defence provided to the court.
[112] This case involved a planned and targeted attack, using a firearm, by a mature man with a criminal record against a defenceless victim in which the victim was shot from behind (from a distance of about 10 feet) and the victim suffered significant physical and emotional harm.
Harsh Conditions of Detention (Duncan / Marshall)
[113] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal concluded that in appropriate circumstances particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in section 719(3.1). In Duncan, the Court went on to say that in considering whether any enhanced credit should be given, a Court must consider both the conditions of the pre-sentence incarceration and the impact of those conditions on the accused.
[114] There is no mathematical formula for determining the amount of enhanced credit for harsh pre-sentence incarceration conditions.
[115] In R. v. Marshall, 2021 ONCA 344, at paras 51 to 53, the Court of Appeal clarified how harsh pre-sentence conditions of pre-sentence custody should be taken into account by a sentencing judge. The Court concluded at para 52 as follows:
“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.”
[116] In Marshall, at para 53, the Court went on to say that while quantifying the specific number of days that are given as a Duncan credit is not necessarily inappropriate, it may skew the calculation of the ultimate sentence.
[117] In this case, a summary of the time that Mr. O’Donnell spent subject to lockdowns while at the Toronto South Detention Centre was filed as an exhibit. Mr. O’Donnell was subject to either full or partial lockdowns on 24 occasions. The reason for most of the lockdowns was staff shortages.
[118] In R. v. Ahmed, 2021 ONSC 8157, at para 40, Justice Schreck observed that:
“…the conditions at the TSDC have been the subject of frequent judicial criticism.”
[119] I accept that, as a result of lockdowns, Mr. O’Donnell experienced particularly harsh conditions of detention that warrant consideration: R. v. Morgan, 2020 ONCA 279, at para 9; R. v. Reddick, 2020 ONCA 786, at para 11.
[120] Following the guidance provided by the Court of Appeal in Marshall, at para 53, I have not set out a specified number of days as a Duncan credit. Instead, I have considered it as a mitigating factor that I have taken into account, together with the other mitigating and aggravating factors, when determining the appropriate sentence.
Summers Credit
[121] Mr. O’Donnell was arrested on August 1, 2023. He was released from custody on February 20, 2024.
[122] He served a total of 203 real days (or just over 6 months and 19 days) in custody at the Toronto South Detention Centre. On a 1.5 to 1 basis, Mr. O’Donnell will receive 305 days of enhanced credit. See R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575.
Downes Credit
[123] In R. v. Downes, 2006 ONCA 3957, 79 O.R. (3d) 321, the Court of Appeal held that in some circumstances it will be appropriate to give credit (and consider as a mitigating factor) the time an offender spent under strict bail conditions.
[124] As the Court of Appeal stated in R. v. Joseph, 2020 ONCA 733, at para 114, “The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation.”
[125] While the impact of bail conditions cannot be assumed, there are some restrictions, such as house arrest, from which inferences can be drawn and the impact is obvious: R. v. Daley, 2016 ONSC 3513.
[126] There is no mathematical formula to be applied when determining the appropriate credit.
[127] Whether a Downes credit should be provided is a matter of discretion for the trial judge: R. v. Eden, 2021 ONCA 733, at para 10.
[128] A number of factors must be taken into account when determining the amount of credit for harsh bail conditions, including:
- The length of time spent on bail;
- The stringency of the conditions;
- The impact on the accused’s liberty;
- The ability of the accused to carry out normal relations, employment and activities; and
- Any particular impact on the accused.
[129] The offender in Downes was subject to a house arrest condition for 18 months with an exception that allowed him to be outside his home when he was in the company of his surety. The Court of Appeal concluded that five months’ credit was appropriate.
[130] In R. v. Mok, 2017 ONSC 3758, Justice McMahon gave 14 months’ credit for a 28 month period during which the accused was under strict house arrest with electronic monitoring. The accused in that case was separated from his wife and children, and they were unable to travel to Canada to visit him. See also R. v. Warsame, 2022 ONSC 424.
[131] In Joseph, at para 112, the Court of Appeal concluded that the sentencing judge erred by giving a 1:1 credit for the time an accused spent subject to house arrest. See also R. v. Fobister, 2010 ONCA 7, at para 2. In Joseph, at para 112, the Court held that house arrest is very different from jail, and “it is an error to equate them”.
[132] Having said that, house arrest is a significant restriction on liberty and there is, unlike jail, no remission: R. v. Mori, 2020 ONCJ 620, at para 34.
[133] In this case, Mr. O’Donnell has been on a strict bail order since February 20, 2024. He has had an ankle monitor and is subject to house arrest, with no exceptions unless he is in the company of a surety.
[134] I am satisfied that the bail order that Mr. O’Donnell has been subject to was restrictive and it had an impact on his liberty interests.
[135] In my view, it is appropriate to credit Mr. O’Donnell with 90 days for the restrictive bail conditions.
CONCLUSION
[136] Mr. Pearce said everything that could be said on behalf of Mr. O’Donnell.
[137] The seriousness of the offences is clear. The offences involved a calculated, planned and deliberate attack, with a prohibited firearm, on a defenseless victim.
[138] Mr. O’Donnell caused real and long-lasting harm to Ms. Flanagan.
[139] These offences were the product of, in Mr. O’Donnell’s mind, a perceived slight or slights by Ms. Flanagan. Once again, I find that Ms. Flanagan did nothing wrong. The actions of Ms. Flanagan prior to the commission of the offence were very different than the conduct of the victim prior to the shooting in R. v. Harrison, 2024 ONSC 3272.
[140] After taking into account all the relevant circumstances (including Mr. O’Donnell’s age), I have concluded that the appropriate sentence (before taking into account Downes or Summers credit - but after taking into account harsh pre-sentence incarceration conditions) is 2859 days imprisonment.[^2]
[141] While this is a lengthy first sentence in the penitentiary, the offences in this case are very serious. In my view, this sentence is proportionate to the seriousness of the offences and Mr. O’Donnell’s degree of responsibility.
[142] After deducting the Summers credit (305 days) and the Downes credit (90 days), the remaining time left to be served on each count (as of February 20, 2025) is 2464 days imprisonment (or 81 months).[^3] The sentences will be served concurrently with each other.
[143] The 305 days of enhanced pre-sentence custody will be noted on the information.
[144] I also make the following ancillary orders:
- Aggravated assault and discharge of a firearm with intent are primary designated offences under section 487.05(1) of the Criminal Code. Mr. O’Donnell will be required to provide a suitable DNA sample.
- A section 109 order for 10 years.
- Pursuant to section 743.21 of the Criminal Code, while serving the custodial part of his sentence, Mr. O’Donnell must not communicate, directly or indirectly, with Ms. Flanagan.
- Pursuant to section 491 of the Criminal Code, the firearm seized by the police is forfeited to His Majesty and shall be disposed of as the Attorney General directs.
[145] Finally, I see no reasonable basis to waive the victim surcharge. Since he retired, Mr. O’Donnell has received a pension. He has the ability to pay the victim surcharge. The imposition of the surcharge would not cause undue hardship to Mr. O’Donnell and it would not be disproportionate to the gravity of the offences or the degree of Mr. O’Donnell’s responsibility for those offences. Mr. O’Donnell has 3 months to pay the surcharge.
NORTH J.
[^1]: In arriving at this conclusion, I find that Constable Ted Tompras, the ETF officer who testified at the preliminary inquiry about his interaction with Mr. O’Donnell was a credible witness. Constable Tompras provided reliable evidence. I accept Constable Tompras’s account of what occurred.
[^2]: Approximately 7 years and 10 months.
[^3]: 81 months is approximately 6 ¾ years.