COURT FILE NO.: CR-11-40000820-0000
DATE: 20130109
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Glenn Brotherston for the Crown
- and -
CHRISTOPHER ALEXANDER
M. Wyszomierska for Christopher Alexander
HEARD: December 19, 2012
Thorburn J.
REASONS FOR SENTENCE
I. The Convictions
[1] On October 10, 2012, Christopher Alexander was found guilty of the following offences, all of which took place at the Fairview Mall on September 13, 2010:
i. discharge of a Glock 9mm semi-automatic pistol at Owen Baker in order to prevent his own arrest[^1];
ii. discharge of the pistol knowing or being reckless as to whether another person was present[^2];
iii. unlawful possession of the pistol without being the holder of a licence and registration certificate[^3];
iv. possession of an overcapacity magazine knowing he had no licence to possess it[^4];
v. possession of a firearm while prohibited from doing so by virtue of a March 22, 2007, court order pursuant to section 110 of the Criminal Code[^5];
vi. failure to comply with the terms of his recognizance “to be in your place of residence at all times seven days a week except for medical emergencies and to go directly to and from court and while at court or while in the continuous company of your surety”[^6];
vii. failure to comply with the terms of his recognizance, “Not to be found within the City of Toronto except in the direct company of your surety or to go to and from court and while at court”[^7]; and
viii. failure to comply with the terms of his recognizance, not to possess, until dealt with according to law, any firearm, prohibited weapon or restricted weapon or ammunition[^8].
[2] For the reasons that follow, a global sentence of nine years is imposed on Alexander.
II. The Factual Circumstances Surrounding These Offences
[3] Just after 8 p.m. on September 13, 2010, Christopher Alexander stole a bottle of cologne in The Bay at Fairview Mall. He was wearing a red T-shirt. The theft was captured on videotape by a security camera operated by The Bay.
[4] Two loss prevention officers employed by The Bay followed him and his companion after they left The Bay. Five individuals were present during the ensuing arrest: two Bay loss prevention officers (Owen Baker and Mark Mendonca) and three Fairview Mall security guards (Jeremy Coombs, Kris Mazun and Corey Spencer).
[5] Initially Alexander did not resist arrest, but when the word “handcuffs” was mentioned he fled and was chased by Baker and followed by the others present at the time of his arrest. The chase was captured by several security cameras at the Fairview Mall.
[6] Baker chased Alexander through the lower level of the Mall carrying a handgun and as they approached the food court, Alexander fired a shot from a loaded handgun. Baker saw Alexander drop the handgun. It was a 9mm Glock pistol. A shell casing was found on the floor of the lower level of the Fairview Mall near the food court.
[7] Alexander shot at Owen Baker to prevent his own arrest as evidenced by the following:
i. Owen Baker, Kris Mazun and Cory Spencer all remember the male wearing the red shirt (Alexander) draw a firearm from his waistband, turn to face them during the chase, point the gun backwards and fire;
ii. Baker and Mazun testified that the male pointed the handgun toward them and fired a shot (Mazun was behind Baker but they were both chasing Alexander);
iii. Baker was much closer to Alexander than Mazun or Spencer and he was clear and unequivocal that the gun was pointed at him and then a shot was fired. Given that Baker was chasing him and he was running to avoid arrest and was not able to evade Baker by running faster than Baker was, the only reasonable explanation is that he was shooting at Baker to prevent his own arrest; and
iv. the videotape confirms that Owen Baker dropped down just after the place the shot was fired. This is corroborated by the place in which the shell casing was found.
[8] The handgun is a prohibited firearm and the magazine is a prohibited device. Fourteen bullets were found in the chamber and magazine when the handgun was seized by police. Ballistics testing revealed that the shell casing found was fired from the handgun. There was a small round dent in the metal of a half wall in the Fairview Mall food court and another small round dent in the metal surrounding a vendor’s sign above a stall in the food court.
[9] On September 13, 2010, Christopher Alexander had no licence or registration certificate to possess a Glock 9mm semi-automatic pistol or an overcapacity magazine. He was prohibited from possessing a firearm or magazine by virtue of a March 22, 2007 court order.
[10] Christopher Alexander was not permitted to be out of his home except for very limited purposes and in the company of his surety, and to go to and from court. His attendance at the Fairview Mall was in breach of the terms of his recognizance.
[11] Owen Baker filed a victim impact statement. Although he suffered no physical injuries, he suffered emotionally as a result of this incident as recounted in his victim impact statement. As a result of the counseling provided to him by his employer, The Hudson Bay Company, he is now able to return to work.
III. Alexander’s Background
[12] Alexander is now 29 years old. He has 19 prior convictions including three robbery convictions, four counts of assault causing bodily harm and one conviction for assault.
[13] His were humble beginnings: Alexander never knew his father growing up, although since he has been in custody he has had some contact with him. He was raised by a single mother and has a severely disabled sister who grew up with her grandmother while Alexander lived from time to time with his mother.
[14] When he was approximately one year old his mother was deported to Jamaica and he spent a few years with her in poverty in Jamaica. Thereafter he was sent by himself to live with friends in Canada. His mother immigrated to New York and he was sent down to live with her. He was unable to enter the school system and therefore spent the year alone in his mother’s apartment. He was then sent back to Canada. Sometime later his mother again sent for him and he returned to New York, but when she was unable to support him he returned to Canada at the age of 16.
[15] Alexander has three children aged six, seven and eight. He was providing them with some financial support but has never had fulltime employment.
[16] His counsel states that he now realizes he must complete high school and find a career. He has been participating in a skills upgrading program at the Toronto Jail when the program is offered.
[17] Two letters were filed: one by his sister and one by the woman who acted as Alexander’s mother in Canada. Both state that they will try and assist Alexander. Both were available to him at the time these offences were committed.
[18] When these offences were committed, Alexander was subject to two orders of recognizance to be out only in the company of his surety and for limited purposes. In breach of those orders, he went into the Fairview Shopping Mall with a loaded handgun on his person, stole perfume, knowing he was thereby risking a confrontation with security, and then took out a handgun he was carrying on his person and shot in the direction of Owen Baker in order to avoid being arrested.
IV. Legal Principles of Sentencing
[19] Judges in Canada are required by law to impose a just sanction that meets one or more of the following six objectives set out in s. 718 of the Criminal Code:
- denounce unlawful conduct;
- deter the offender and others from committing offences;
- separate offenders from society where necessary;
- assist in the rehabilitation of offenders;
- provide reparations for harm done to victims or to the community; and
- promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[20] Denunciation and deterrence are particularly important considerations in a case such as this, given the ongoing and serious problems associated with gun violence and the need to deter those convicted and other like-minded people from committing such crimes.
[21] Aggravating and mitigating circumstances of this offence and this offender are taken into account as, when considering these principles, the court must take into account the circumstances of this offence and this offender. Sentencing ranges are useful in ensuring that like offences committed by like offenders are treated similarly. However, they are guidelines only.
[22] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. (Kienapple v. R., [1975] 1 S.C.R. 729). Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests. (R. v. Houle, 2008 ONCA 287, 79 W.C.B. (2d) 64 at para. 4.)
[23] Where there is a sentence for multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), [1996] 1 S.C.R. 500 at para. 42.) If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper.
V. Positions of the Parties Regarding the Appropriate Sentence
[24] The Crown seeks a global sentence of 12 years given the seriousness of these charges including the intentional discharge of a firearm to resist arrest, the court orders that were breached, Alexander’s age and his lengthy criminal record. According to a letter filed by the Ministry of Community Safety and Correctional Services dated November 22, 2012, Alexander had been in presentence custody for 360 days as of that date and was housed at the Toronto Jail. Crown counsel suggests the usual one for one credit should be given to Alexander for time spent in presentence custody.
[25] Alexander’s counsel submits that a sentence of six to seven years is appropriate in these circumstances. Alexander’s counsel points out that his upbringing was deplorable: it includes the telltale signs of poverty, neglect, displacement and the lack of a strong family unit. She claims his prospects for rehabilitation are reasonable and notes this is his first penitentiary sentence. Alexander’s counsel suggests that Alexander should be given 1.5:1 credit for the entire time spent in pre-sentence custody. She notes that as of November 22, 2012, Alexander had spent 21 nights triple bunked and that, according to the letter filed, “The Toronto Jail does not keep statistics on the number of lockdowns that occur.” During a lockdown, inmates have restricted opportunities to leave their cells. Although each inmate is entitled to receive 20 minutes of fresh air daily, it is estimated that Alexander was offered the opportunity to attend yard only 5 days per month. There is no exercise equipment available at the facility.
[26] It is agreed that in addition to a period of incarceration, there should be an order that he forfeit the firearm, chamber and bullets seized by police, an order to prohibit Alexander from possessing weapons for life pursuant to section 109 of the Criminal Code, an order that Alexander provide a sample of his DNA to law enforcement and an order pursuant to section 743.21(1) of the Criminal Code that Alexander have no contact with Owen Baker upon his release.
VI. Decision as to the Appropriate Sentence
[27] I have considered the aggravating and mitigating circumstances. The most notable aggravating factors are that Alexander has a lengthy criminal record, and that he intentionally went to the Fairview Mall carrying a firearm and deliberately pulled it out and used it, putting innocent people at risk.
[28] I note that Alexander was subjected to conditions of poverty, neglect and displacement no child should have to endure. This may assist in understanding how Alexander became involved in a criminal lifestyle but does not assist his prospects for rehabilitation.
[29] Alexander is 29 years old with many years ahead of him and he has taken some limited steps to avail himself of self‑improvement programs in the Toronto Jail. His prospects for rehabilitation are therefore fair.
[30] I am mindful that denunciation and deterrence are of primary importance when dealing with an accused with a lengthy criminal record that includes prior offences involving weapons and violence. Moreover, the firearm in this case was in public view at a time when many shoppers were at the Fairview Mall.
[31] On September 13, 2010, when this offence was committed, the Criminal Code provided that there is a mandatory minimum sentence of five years for discharge of a loaded firearm with intent to evade arrest, and a mandatory minimum of three years for possession of a loaded prohibited or restricted firearm. I have taken into account these mandatory minimum sentences in determining the appropriate sentence.
[32] I have also considered the appropriate range of sentences that have been imposed for similar offences committed by similar offenders.
[33] In R. v. Bellissimo, 2009 ONCA 49, the Court of Appeal held that the range for serious gun‑related offences where shots are fired and someone is wounded is 7 to 11 years.
[34] In R. v. Michael Larmond 2011 ONSC 7170 Belobaba J. noted that the more usual sentence in cases where the shooting was planned or premeditated, the shooter had a criminal record with crimes of violence, and the resulting injuries were serious or permanent, is 8 to 9 years.
[35] Counsel noted that there are very few cases that address the issue of shooting to avoid arrest. The only case provided is R. v. Jackson (2002).
[36] In R. v. Manning [2007] O.J. No. 1205 (SC) and R. v. W.C.A. [2010] O.J. No. 2677 additional consecutive sentences were imposed for breach of prohibition orders.
[37] Given the legal principles to be applied, the range of sentences, and the fact that a loaded firearm was taken to a public place, one shot was fired in an attempt to evade arrest, no one was wounded and the accused has a lengthy criminal record and a fair chance of rehabilitation, the appropriate sentence for discharge of the firearm is seven years.
[38] Both counsel agree that the conviction for discharge of the pistol knowing or being reckless as to whether another person was present should be stayed.
[39] A concurrent sentence of three years is imposed for unlawful possession of the pistol without being the holder of a licence and registration certificate.
[40] A consecutive sentence of six months is imposed for possession of an overcapacity magazine knowing he had no licence to possess it.
[41] A further consecutive sentence of one and one‑half years is imposed for breach of the court orders.
[42] After determining the appropriate global sentence, consideration must be given for time already spent by Alexander in pre‑sentence custody.
[43] One of the effects of the enactment of the Truth in Sentencing Act, S.C. 2009, c. 29 was to limit credit for time spent in presentence custody to a maximum of one day for each day spent in custody. However, under the heading “Exception” section 719(3.1) of the Criminal Code provides that enhanced credit of 1.5:1 may be granted “if the circumstances justify it”.
[44] Alexander was arrested on February 7, 2011 and has spent 703 days in custody to date. Ninety days is to be subtracted to take into account a sentence served for assaulting two police officers which sentence was served during his time in presentence custody.
[45] Alexander spent 21 days of his presentence custody in the Toronto Jail triple bunked. This is beyond the reasonable expectation of persons awaiting trial and sentence.
[46] Given the above, Alexander will be given an additional credit of four months’ time to account for the days spent triple bunked, without any yard time and/or in lockdown.
[47] Therefore from the nine year sentence a total of 735 days is to be subtracted. This results in a net global sentence of six years and eleven and one half months which remains to be served.
[48] In addition to the period of incarceration, the following ancillary orders are imposed:
i. an order that Alexander forfeit the firearm, chamber and bullets seized by police,
ii. an order to prohibit Alexander from possessing weapons for life pursuant to section 109 of the Criminal Code,
iii. an order that Alexander provide a sample of his DNA to law enforcement, and
iv. an order pursuant to section 743.21(1) of the Criminal Code that Alexander have no contact with Owen Baker.
Thorburn J.
Released: January 9, 2013