Sentencing Judgment

Ontario Court of Justice

Date: September 23, 2025

Court File: Toronto #24 48106377

Between:

His Majesty the King

— AND —

Ricardo Gallardo-Madrid

Before: Justice Brock Jones

Heard on: September 10, 2025

Written Reasons Provided on: September 23, 2025

Counsel

A. Kiran — counsel for the Crown

L. Kiss — amicus

Mr. Gallardo-Madrid — did not appear

Introduction

[1] On July 14, 2025, I found Mr. Gallardo-Madrid guilty of two counts of assault with a weapon and one count of using an imitation firearm to commit an indictable offence. The Crown proceeded by indictment.

[2] Mr. Kiss was, during the trial, counsel for Mr. Gallardo-Madrid. Before the delivery of the trial judgment, Mr. Gallardo-Madrid fled the country. The parties agreed that he had absconded. Ms. Kiran sought to conduct a sentencing hearing in absentia. Mr. Kiss requested to be removed from the record as defence counsel but accepted an appointment as amicus to assist the court at the sentencing hearing.

Findings of Fact at Trial

[3] Mr. Tian Liu and Ms. Jiarui Lin are married. They were walking near Bathurst and Dundas on the evening of November 6, 2022. Ms. Lin was pregnant.

[4] At about 6:20 pm, Mr. Liu saw a man walking towards them. The man had a gun in his hand. When Mr. Liu and his wife were about five metres from him, he turned around and pointed the gun at them. The man pulled the trigger, and there was a clicking sound. However, no bullets were fired. He then walked away.

[5] Mr. Liu believed his life was in danger. Ms. Lin observed the man pointing the firearm at her and her husband but was unsure of his specific target. The entire incident only lasted four or five seconds, but it frightened her.

[6] Mr. Gallardo-Madrid was arrested shortly thereafter. The police located the firearm. It was an unloaded BB gun. It looked very realistic, and could be easily confused with a handgun.

[7] During the trial, I heard testimony from Dr. S. Cohen, a forensic psychiatrist at the Centre for Addiction and Mental Health ("CAMH"). I accepted Dr. Cohen's evidence and concluded that Mr. Gallardo-Madrid was experiencing a drug-induced psychosis at the time of the offences. He was unable to appreciate the wrongfulness of his actions. He admitted to Dr. Cohen that he had used marijuana in the days prior. However, I also found that the defence failed to establish the defence of not criminally responsible ("NCR") because the cause of Mr. Gallardo-Madrid's psychosis was due to voluntary drug consumption rather than an underlying major mental illness: R. v. Gallardo-Madrid, 2025 ONCJ 378.

Victim Impact Statements

[8] Mr. Liu described feeling "overwhelmed by fear" for his life and that of his pregnant wife. The psychological impact of these events has been significant. He suffers from anxiety and struggles with sleeping. He no longer feels safe walking in public. His daily life is dominated by fear and stress.

[9] He and his wife moved away from downtown Toronto because they no longer felt safe there. This caused financial hardship for their family.

[10] When the man aimed the gun at her, Ms. Lin thought she might be killed. She felt helpless and terrified. She was not only worried about her own life but also about the baby she was carrying. She also experiences anxiety and does not feel safe outside her home. The sense of security she once relied on has been shattered. She feels "deep emotional harm" from what happened.

Mr. Gallardo-Madrid's Prior History of Drug-Induced Psychosis

[11] Mr. Gallardo-Madrid had an extensive history of treatment for psychotic episodes caused by drug use, which was reviewed at the trial. The key parts of that history relevant to my sentencing decision may be summarized as follows.

March 21, 2021

[12] Mr. Gallardo-Madrid attended the St. Michael's emergency department. He was taken into custody by police earlier that day for threatening to kill himself by jumping from the CN Tower. A code white alert was issued due to his behaviour. Physical and chemical restraints were necessary to protect hospital staff. A former roommate reported that he had been involved in physical altercations with his roommates recently, and he was making strange utterances. He had been consuming cannabis daily.

May 28, 2021

[13] Mr. Gallardo-Madrid was evaluated at Toronto General Hospital. He was taken to the emergency department while in police custody. He had been causing damage at his residence and was aggressive with the police. He reported using cannabis.

June 2-10, 2021

[14] University of Toronto campus security contacted the Toronto Police Service about a report of a man acting in an agitated manner at a nearby grocery store. Mr. Gallardo-Madrid attempted to assault a security guard. He was incoherent when located. He spat and kicked wildly while in the police cruiser. At the emergency department, he required physical and chemical restraints. He also attempted to spit at staff.

[15] He eventually reported that he had been using cannabis regularly. He said it made him feel "crazy." He also reported feeling paranoid and worried that someone was trying to kill him. Additionally, he reported homicidal thoughts.

[16] He was diagnosed with a substance-induced psychotic disorder. Concerns about drug use, including his susceptibility to substance-induced psychosis, were discussed with him. Mr. Gallardo-Madrid informed the attending medical professionals that he would refrain from using cannabis.

August 22, 2021

[17] On August 22, 2021, he was taken to the CAMH emergency department. He did not remember the reason. He felt "detached" from reality. He remembered using cannabis beforehand. Furthermore, he reported that in May of that year, he was charged with robbery.

November 5, 2021

[18] At the CAMH bridging clinic, Mr. Gallardo-Madrid reported he was still using cannabis. He was reminded of his diagnosis and that the most effective treatment would be an antipsychotic medication.

CAMH Outpatient Appointments: Various Dates in 2022

[19] On five dates in 2022, ranging from February 9 to October 30, Mr. Gallardo-Madrid attended CAMH. His substance use-related decompensation was regularly discussed. On October 30, 2022, he was diagnosed again by a doctor as likely experiencing a substance-induced psychosis.

Sentencing In Absentia

[20] Criminal Code section 720 states that a court "shall, as soon as practicable after an offender has been found guilty, conduct proceedings to determine an appropriate sentence to be imposed." Criminal Code section 475 allows, but does not require, a court to resume proceedings if the accused has absconded.

[21] In R. v. Singh, 2015 ONSC 904, Justice Pomerance (as she then was) held that when an accused has absconded, a sentencing court is not absolved of its responsibility to impose a sentence that achieves the objective of proportionality. However, the sentencing court must have sufficient information about the accused and his or her background, experiences and personal circumstances to ensure the fundamental principle of proportionality is respected: see paras. 11-17; R. v. Mitsakis, 2022 ONSC 5390, at para. 17.

[22] Given the comprehensive record filed at the trial, the testimony of Dr. Cohen, and the testimony of Mr. Gallardo-Madrid, I am satisfied I have sufficient evidence to complete the sentencing hearing despite the offender's absence.

Positions of the Parties

[23] Ms. Kiran argues that a total sentence of two years in custody, combined with two years of probation, is appropriate. She requested a one-year jail sentence for the assault with weapon charges (concurrent to each other), and a one-year, consecutive sentence for the charge of using an imitation firearm to commit an indictable offence. She contends that this disposition adequately considers the relevant mental health issues, Mr. Gallardo-Madrid's prospects for rehabilitation, and upholds the totality principle.

[24] Ms. Kiran relied on several authorities to support her position. In particular, she cited R. v. Thelusma, an unreported decision by Justice MacFarlane of the Ontario Court of Justice, dated January 14, 2025. The offender was convicted of pointing a firearm at his victims and threatening to kill them. The firearm was a pellet gun.

[25] Justice MacFarlane determined there were no mental health issues contributing to the offence. Despite the offender being only 24 years old, he received a combined 16-month jail sentence.

[26] In R. v. Doodman, 2021 ONCA 543, the offender committed a robbery of a convenience store while using an imitation firearm. At the time of the offences, he was addicted to alcohol and drugs. The trial judge imposed an 18-month jail sentence (reduced by six months for Downes credit), which the Court of Appeal upheld.

[27] At my request, Ms. Kiran also reviewed R. v. Habib, 2024 ONCA 830, where a three-year sentence was imposed on appeal for a similar offence. Ms. Kiran distinguished this case on the basis that the firearm Mr. Gallardo-Madrid wielded was a BB gun, and not a "true" handgun. I will comment further on Habib later in this decision.

[28] As amicus, Mr. Kiss submits that a suspended sentence would be a suitable disposition. He presented the court with numerous authorities guiding how to weigh Mr. Gallardo-Madrid's medical history and mental health diagnoses. Although I did not accept that Mr. Gallardo-Madrid had a major mental illness at the time of the offence, after the trial, Mr. Kiss submits that there is evidence indicating he has since been diagnosed with bipolar one disorder.[1] That should still be taken into account.

[29] Mr. Gallardo was 27 years old at the time of the offences. He came to Canada from Ecuador to study at the University of Toronto and was able to stay on a work permit. However, his drug use had impacted his otherwise pro-social life. If he were to seek to return to Canada in the future and I were to impose a lengthy jail sentence, he might become criminally inadmissible.

[30] Mr. Kiss does not dispute that there is a qualitative difference between an offender who voluntarily uses drugs and commits crimes, and one who has a significant mental illness that they cannot change, which in turn contributes to their criminal behaviour. In his submission, both remain mitigating factors. If I disagree with his recommendation and impose a custodial sentence, it should be less than six months. That would help to prevent the collateral consequences associated with a longer sentence as per the relevant sections of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Essentially, he urges me to prioritize the principle of rehabilitation in sentencing and argues that this case does not warrant giving undue weight to the principles of general deterrence or denunciation due to Mr. Gallardo-Madrid's unique circumstances.

Law and Analysis

[31] Mr. Gallardo-Madrid was a relatively young man when he committed these crimes. He does not have a prior criminal record. Typically, this would require a sentencing court to give considerable weight to specific deterrence and rehabilitation as the primary applicable sentencing principles. However, as noted by the Ontario Court of Appeal in R. v. Mohenu, 2019 ONCA 291, serious crimes of personal violence provide an exception to this general rule. In those cases, the sentencing principles of general deterrence and denunciation are to be given paramountcy: see para. 12.

[32] Section 718.04 of the Criminal Code states that "[w]hen a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence." Mr. Liu and Ms. Lin were completely defenceless at the time they were assaulted. They were highly vulnerable individuals.

[33] Furthermore, section 718.2(a)(iii.1) deems it an aggravating factor that an offence had a "significant impact on the victim." The victim impact statements reflect the lasting psychological harm to both Ms. Lin and Mr. Liu.

[34] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence committed and the moral blameworthiness of the offender: see Criminal Code section 718.1; R. v. Suter, 2018 SCC 34, at para. 4. The Supreme Court of Canada, in R. v. Hills, 2023 SCC 2, held that the gravity of the offence "should be measured by taking into account the consequences of the offender's actions on victims and public safety, and the physical and psychological harms that flowed from the offence": see para. 58.

[35] The seriousness of these offences cannot be overstated. Mr. Gallardo-Madrid aimed a realistic-looking imitation firearm at two innocent people calmly going about their business in downtown Toronto. They were understandably terrified for their lives. In a city often plagued by gun violence, this offence must be condemned. Even worse, Mr. Gallardo-Madrid pulled the trigger while pointing the firearm at his victims, causing them to believe they were about to be shot with a real gun. Such an experience would be utterly terrifying for anyone. It was cruel.

[36] In Hills, the Supreme Court of Canada held that an offender's moral culpability or degree of responsibility "should be measured by gauging the essential substantive elements of the offence including the offence's mens rea, the offender's conduct in the commission of the offence, the offender's motive for committing the offence, and aspects of the offender's background that increase or decrease the offender's individual responsibility for the crime, including the offender's personal circumstances and mental capacity": see para. 58.

[37] Mr. Gallardo-Madrid's moral culpability for these offences must be considered in light of the fact that he was acutely psychotic at the time he committed them, as I will explain. However, the objective seriousness of his crimes still reflects on that moral culpability. In R. v. Roberts, 2020 ABCA 434, the Alberta Court of Appeal stated that "the most important element in assessing moral culpability is the unlawful act itself": see para. 36. Mr. Gallardo-Madrid was also entirely aware of the risks involved in choosing to consume marijuana, given his history of hospitalizations in 2021 and 2022. In R. v. C.K., 2023 BCCA 468, the British Columbia Court of Appeal emphasized that an offender's "awareness of the actual or reasonably foreseeable harms flowing from their conduct" is also a significant factor to consider: see para. 71 (my emphasis added).

Aggravating and Mitigating Factors

[38] The aggravating factors in this case are numerous. The victims were entirely innocent, law-abiding citizens walking peacefully to their home. They were completely defenceless when Mr. Gallardo-Madrid attacked them. He was armed. Ms. Lin was pregnant. The firearm was pointed at them at point-blank range. Mr. Gallardo-Madrid pulled the trigger.

[39] There are a few mitigating factors. Mr. Gallardo-Madrid is an educated man who has enjoyed steady employment. He appeared articulate and intelligent during the trial, before absconding. He does not have a prior criminal record. Presumably, his rehabilitative potential would be significant.

Drug-Induced Psychosis

[40] Mr. Gallardo-Madrid was experiencing drug-induced psychosis when he committed the offences. Dr. Cohen's expert opinion was that Mr. Gallardo-Madrid was "acutely psychotic at the material time, thus robbing him of rational choice, and thus could not meaningfully appreciate the wrongfulness of his actions."[2] However, Dr. Cohen also concluded that Mr. Gallardo-Madrid did not suffer from a longstanding major mental illness.

[41] It is normally a mitigating factor that an accused, while in a drug-induced psychosis brought upon by the voluntary consumption of an intoxicating substance, committed offences. Mr. Gallardo-Madrid was not thinking rationally at the time he assaulted Mr. Liu and Ms. Lin. Yet, that does not excuse or justify his actions, and the weight I assign to this mitigating factor must be carefully considered and should not be presumed: see R. v. Jarvis, 2022 ONCA 7, at para. 8.

[42] In my assessment, Mr. Gallardo-Madrid exhibited a very high level of moral culpability for his actions, despite being in a drug-induced psychosis. This was not his first time experimenting with drugs. As I previously reviewed, he has an extensive history of treatment at Toronto hospitals for this condition. He was aware that using marijuana could trigger a dangerous psychotic episode, having previously behaved violently after consuming that drug. Nonetheless, he continued to use cannabis in the days leading up to November 6, 2022.

[43] Mr. Gallardo-Madrid's psychiatric history was closely tied to his substance use issues, including significant cannabis and psilocybin use. He made multiple emergency and inpatient visits to St. Michael's Emergency Department, Toronto General Emergency Department, and the Centre for Addiction and Mental Health due to psychotic episodes linked to drug use. The mitigating effect of drug-induced psychosis is greatly reduced when a person has been warned about the risks of using a particular drug (including the risk that he might behave dangerously or violently) and chooses to ignore those warnings. Mr. Gallardo-Madrid had a documented history of violence related to substance use before November 6, 2022. His choice to continue using marijuana for days despite this history was made with reckless disregard for the likely outcome that he would have an adverse reaction, become dysregulated or unpredictable, and possibly harm others. This increases his moral culpability beyond that of a first-time drug user who may not fully understand the risks of abnormal behaviour associated with illicit substances: see R. v. Moss, 2024 ABKB 371, at para. 60; R. v. Langevin, 2018 ONSC 6020, at paras. 58-60.

[44] In Roberts, supra, the appellant stabbed two innocent victims to death in their home. He pleaded guilty to two counts of manslaughter committed during a home invasion. Expert testimony presented to the court concluded that Mr. Roberts was in a psychotic state at the time of the killings, due to self-induced methamphetamine and cannabis intoxication. The trial judge sentenced him to 15 years. The Court of Appeal of Alberta held that the trial judge had placed undue weight on the mitigating impact of his drug consumption on his moral culpability and increased the sentence to 20 years.

[45] The Court of Appeal noted that Mr. Roberts "was aware of the link between his consumption of alcohol and drugs and his resulting violence. His propensity for violence when consuming alcohol or drugs was well demonstrated" based on prior experiences, including several when he had been violent against his own family members: see para. 21. The Court wrote the following at para. 41:

The sentencing judge's approach treated the psychosis as a neutral factor, failing to account for the reasons why and the circumstances in which Roberts found himself in a psychotic state. His psychosis was not due to mental illness, nor did mental illness contribute to his psychosis. His psychotic state was induced purely by his decision to ingest a combination of narcotics. This was not a case of a youthful offender who entered a psychotic state unintentionally through experimentation. Roberts had previously induced his psychotic states and knew that, when psychotic, he had a propensity for violence. While he may not have intended to kill, he was wilfully blind to the fact that his actions, in choosing to ingest intoxicants to the degree of triggering a psychotic state, may well cause him to act violently and erratically.

[46] Similar sentiments were conveyed by the British Columbia Court of Appeal in R. v. Green, 2001 BCCA 672. The appellant, while on a crack cocaine binge, killed a female friend. He was convicted of manslaughter and received a seven-year prison sentence. He had a history of cocaine use that significantly affected his behaviour. However, he did not have a prior criminal record, nor was there a documented history of previous violent conduct. On appeal, the appellant argued that because he was not aware of his actions at the time he killed the victim, he was entitled to a reduced sentence. The Court of Appeal disagreed. While recognizing that the crime was less aggravating because he was unaware of his actions, the Court of Appeal stated the following at para. 19:

In the present case, general deterrence and denunciation are the most important factors in determining the proper sentence. I do not accept the argument that deterrence is not a significant factor because people on cocaine binges are unaware of their conduct and cannot be deterred. In my opinion, deterrence is not aimed at violence per se, but is aimed at the highly irresponsible conduct that leads to the violence. Those who might emulate the lifestyle of the appellant that led to the killings must know that serious crimes done while under the influence of self-administered, mind-altering substances will attract substantial terms of imprisonment: the more horrific the circumstances of the crime, the higher the sentence.

Conclusion

[47] When sentencing a first-time offender, the principle of restraint demands that a sentencing court consider "all sanctions apart from incarceration, especially for first offenders": see R. v. Ali, 2022 ONCA 736, at para. 40. If custody is to be imposed, it should be for the least amount of time necessary: see R. v. Hamilton, at para. 96. The principle of restraint is now codified in sections 718.2(d) and (e) of the Criminal Code. And I must ensure that the overall sentence for an offender who receives consecutive sentences for multiple offences does not exceed his moral culpability: see Criminal Code section 718.2(c).

[48] Mr. Gallardo-Madrid's choice to abscond demonstrates outright contempt for the administration of justice. Little weight is to be placed on the sentencing principle of rehabilitation for someone who has shown an unwillingness to respect the court's authority: see R. v. P.M., 2022 ONCA 408, at para. 22. Mr. Gallardo-Madrid certainly cannot be credited with any potential remorse for his actions, as he is not here to address the court. I recognize that absconding is not by itself necessarily an aggravating factor: see Singh, supra, at para. 19; R. v. Eggleton, 2023 ONSC 5724, at para. 16. Rather, it may negate or minimize the value attached to certain mitigating factors and justify the court placing an enhanced emphasis on specific deterrence: see R. v. Sithravel, 2023 ONCA 748, at para. 5; Eggleton at para. 47.

[49] Nevertheless, sentencing courts must send a strong message that those who commit violent crimes with firearms will face significant punishments upon conviction. As Justice Nishikawa recently noted in R. v. Riahi, 2025 ONSC 4957, the "courts have repeatedly condemned the menace that the criminal possession of handguns poses to society and the need for sentences to further the goals of denunciation, deterrence and protection of the public": see para. 42. While a BB gun is not nearly as objectively dangerous to public safety as a prohibited or restricted "true" firearm capable of firing live rounds of ammunition, the impact of Mr. Gallardo's crimes on his victims was profound. To them, the firearm appeared real, and the fear they experienced was just as psychologically traumatic as if it were real.

[50] Given a long history of drug use followed by psychotic episodes that led to violent acts, and warnings from medical professionals that he should stop using marijuana, I do not find that Mr. Gallardo-Madrid's moral culpability for these offences is significantly diminished despite being in an acutely psychotic state at the time. Indeed, to repeat, I find his moral culpability to be extremely high. He knowingly and recklessly endangered every member of the public by arming himself before setting out to needlessly threaten anyone he encountered: see Moss, supra, at para. 61; R. v. Itil, 2019 ONSC 6532, at para. 27.

[51] In Habib, the appellant impulsively brandished a handgun during an altercation with a pizza store employee who had refused to serve him. The employee fled the store in fear. Three bystanders were present at the time. The appellant was only 19 years of age at the time. The Court of Appeal for Ontario overturned the trial judge's sentence of four years and reduced it to three years, to better reflect his reduced maturity. The Court noted, however, that had the appellant been older and more mature, a greater sentence would have been appropriate. The Court compared Mr. Habib to the offender in R. v. Samaniego, 2020 ONCA 439, aff'd on other grounds, 2022 SCC 9, who, at 25 years old, received a four-year sentence for a very similar offence: see Habib, supra, at paras. 56-7. In Samaniego, the offender threatened a security guard at a nightclub by showing him a gun he had concealed in his waistband.

[52] After careful reflection, I find that the Crown's position is justified. It recognizes the seriousness of these offences, the significant harm inflicted on the victims, the ongoing issue of firearms violence in this city, and Mr. Gallardo-Madrid's high level of moral culpability. It accurately considers his history of being hospitalized for acting violently while in a drug-induced state, and the warnings he previously received from medical professionals regarding the dangers of using marijuana.

[53] The citizens of this city deserve to know they can enjoy themselves peacefully without being subject to random acts of abhorrent, violent crime. I reiterate and highlight the words of the British Columbia Court of Appeal in Green that offenders who choose to consume mind-altering substances and then commit horrific offences must understand that they will face "substantial terms of imprisonment": see para. 19. As Justice Goldstein similarly noted in R. v. Starostin, 2023 ONSC 367, general deterrence should be given significant weight in the sentencing process for an offender who recklessly consumes an intoxicating substance resulting in violent behaviour. This is especially true when the offender has been given multiple opportunities to address their substance abuse issues, and has been made aware of their capacity for violence when intoxicated, but has failed to do so: see para. 48.

[54] Mr. Gallardo-Madrid was a 27-year-old educated man at the time he committed his offences. That stands in stark contrast to the appellant in Habib, who was an impulsive teenager. However, he wielded a BB gun, not a prohibited or restricted firearm. I impose a one-year jail sentence on the assault with a weapon charges, to be served concurrently with each other. The sentence for using an imitation firearm to commit an indictable offence must be served consecutively to any other punishment imposed for an offence arising from the same events: see Criminal Code sections 85(2)(a) and (4). On count 3 of the information, I impose a one-year jail sentence, to run consecutively to the sentence for the assault with a weapon charges. The total sentence is therefore two years in prison.

[55] Having decided that a penitentiary sentence is necessary, I need not further comment on the alternative argument presented by Mr. Kiss that a conditional sentence order would be appropriate.

[56] In addition, I impose a two-year probation order. The terms of probation will include that Mr. Gallardo-Madrid have no contact with the victims and stay 500 metres away from them at all times. He is also prohibited from possessing any weapons as defined by the Criminal Code, including any pellet guns, BB guns or imitation firearms.

[57] I impose a section 109 order for ten years and a DNA order for all three offences.[3]

[58] The victim fine surcharges are imposed.

[59] While Mr. Gallardo-Madrid is in custody serving this sentence, he is ordered to have no contact with the victims: Criminal Code section 743.21.

Released: September 23, 2025

Signed: Justice Brock Jones

Footnotes

[1] Testimony of Dr. Jain at the trial.

[2] Testimony of Dr. Cohen during the trial.

[3] Assault with a weapon (Criminal Code section 267(a)) is primary designated offence. Using an imitation firearm to commit an indictable offence (Criminal Code section 85(2)) is a secondary designated offence.