SUPERIOR COURT OF JUSTICE

Court File No. CR-11-1375

ONTARIO

HER MAJESTY THE QUEEN

v.

CHRISTOPHER RAPHAEL

REASONS FOR SENTENCE

BEFORE THE HONOURABLE MR. JUSTICE DURNO

on November 28, 2012, at BRAMPTON, Ontario

APPEARANCES:

J. Kingdon Counsel for the Crown

A. Weisberg Counsel for Christopher Raphael

ONTARIO

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR SENTENCE Page 1

Transcript Ordered: .......................... September 2013

Transcript Completed: ...................... December 9, 2013

Ordering Party Notified: ................... December 9, 2013

WEDNESDAY, NOVEMBER 28, 2012

REASONS FOR SENTENCE

DURNO J. (Orally):

[1] On July 3, 2010, 17-year-old Adrian Ducas went to the Malton Community Centre to play pick-up basketball. While he was playing, Christopher Raphael came onto the court with three friends. They were not there to play basketball. Mr. Raphael was armed with a concealed firearm, known to him to be loaded and operable, although when he entered the community centre, it is acknowledged he had no intention of using it. He was looking for people who had robbed him of some gold chains a few days earlier. In particular, they were looking for the person who set him up for the robbery. That person was not there.

[2] As the group was leaving, Adrian Ducas told Christopher Raphael in a non-threatening way something to the effect that he should stop disrupting the basketball game as him and his friends had done. Mr. Raphael interpreted the statement as disrespecting him in the context that he had recently been robbed and feeling no one was taking him seriously. He drew the handgun intending to threaten and assault Adrian Ducas and attempted to strike him with the gun. Tragically, the gun accidentally discharged hitting Adrian Ducas in the head and fatally wounding him.

[3] Mr. Raphael and his friends fled and for the next two days he stayed in motels in the Toronto area with his girlfriend. One of the persons who was at the community centre with him was arrested on July the 9th and Christopher Raphael arranged through a family member to rent a basement apartment in Barrie where he remained until July 30th when he was arrested by police.

[4] Christopher Raphael has pled guilty to manslaughter and is to be sentenced today. Mr. Kingdon, on behalf of the Crown, and Mr. Weisberg on behalf of the offender, submit that a fit sentence is one of ten years reduced for pre-trial custody credit. Where they differ is the amount of credit for that period. The Crown says it should not be the maximum one and one half days for each day in custody. Mr. Kingdon submitted that somewhere in the area of eight months credit in addition to the actual time was appropriate. Mr. Weisberg says it should be the maximum available, one and one half days for each day spent in custody. Counsel agree on the two corollary orders: DNA and s. 109.

The Victim Impact Statement

[5] Adrian Ducas’ sister wrote a very eloquent Victim Impact Statement that gives a glimpse into the devastation this tragedy has caused her and her family. It also shows the fine young man whose life was so senselessly taken. Adrian Ducas was a likeable, caring, loving and energetic young man. He was well liked and a popular student who enjoyed playing basketball. He had graduated from high school and was looking forward to his postsecondary school education. He was ten days short of his 18th birthday, a birthday he was looking forward to. He was an ambitious young man who was to start his summer job just a few days later.

[6] His sister wrote how heartbreaking it was to visit his grave because he had so much life ahead of him, but his life was cut short at age 17. The statement notes the understandable and heartbreaking impact Adrian’s death has had on his mother. Not a day passes by that she does not think of him. The statement ends, “Life hasn’t been the same and never will be the same with Adrian gone.”

The Offender

[7] Christopher Raphael is 23 and was 20 at the time of the offence. His parents separated and he was raised by his mother in Scarborough while spending weekends with his father. Both parents, I am told and accept, remain supportive.

[8] He has a grade 12 education, obtained his gas technician licenses and was attending Seneca College taking business management courses.

[9] As with any sentencing, there are aggravating and mitigating factors. First those in aggravation:

i. Mr. Raphael armed himself with a deadly weapon to take with him as he was seeking out the person he believed set him up to be robbed. As the Court of Appeal said recently, it is a reasonable inference that someone who arms themselves with a loaded gun is prepared to use it if they think the appropriate occasion arises: R. v. McCue, 2012 ONCA 773, at para. 15. I appreciate that the discharge here was not intentional but it is a serious aggravating fact that he was illegally carrying a deadly weapon. Higher courts have repeatedly made it clear that significant sentences must be imposed where loaded guns are involved in crimes in the greater Toronto area.

ii. The impact on Adrian Ducas’ family and friends has been devastating and will continue to be so.

iii. It is not just the family and friends of Adrian Ducas who are impacted by crimes like this. The community builds facilities for young men and women to attend and pursue athletics. It is a shocking and sad day for this community when a young man who just wanted to play basketball winds up with a bullet in his head.

iv. At the time of the commission of the offence, Christopher Raphael was bound by a court ordered recognizance prohibiting him from having any firearms. That he was subsequently acquitted of the offences that gave rise to the release order does not in any way diminish the seriousness of the flagrant breach of a court order.

v. He fled and hid from police. His desire to evade police led to a relative being charged.

[10] There are also factors in mitigation:

i. The offender pled guilty. The plea saves the family and friends of Adrian Ducas as well as the witnesses from attending what would have likely been a three- to four-week trial. A plea of guilty is indicative of remorse, a public admission of guilt and also reflective of the potential for rehabilitation. The plea to manslaughter, the appropriate resolution on these facts, saves the public expense of a trial in a busy jurisdiction. Had there been a trial and conviction, there almost inevitably would have been an appeal. On occasion, because of errors made at the trial, changes in the law or new evidence, new trials are ordered. Everyone could have been sitting here two or three years from now or even longer awaiting the second trial to start. The plea brings finality to the prosecution.

ii. The offender is still a young man with the capacity to turn his life around. At the time of the commission of the offence, he was a young first offender.

iii. On the last date he apologized to Mr. Ducas’ family and vowed to make the most of his time in custody and turn his life around. I am advised today that he took a Christian counselling course or session while at Maplehurst.

iv. The offender has been in custody since July 30, 2010, 2 years, 3 months and 30 days that will be rounded off to 2 years and 4 months. Mr. Weisberg says the credit should be 1.5 for an additional 14 months on top of the 28 for a credit of 42 months. Mr. Kingdon agrees the credit should be above one-for-one, but says it should be in the neighbourhood of 8 months for a total pre-sentence custody credit of 36 months.

[11] Section 791 of the Criminal Code provides as follows:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

[12] I assume from counsel submissions that neither of those apply here, correct?

MR. KINGDON: Correct, Your Honour.

THE COURT:

[13] What those sections mean is currently the subject of a reserved judgment by our Court of Appeal in R. v. Summers. There are conflicting judgments from both trial courts in Ontario. As far as I am aware, the only appellate court in Canada to examine the issue is the Court of Appeal for Nova Scotia, concluding a court can consider the absence of remission in considering if the circumstances justify enhancement above one-for-one.

[14] Before the new legislation, there were a series of cases that dealt with credit, then at a standard two days for each day in jail. The cases can be summarized in general as:

i. the granting of credit for pre-trial custody is a discretionary matter;

ii. it was and is an error not to consider that time;

iii. whether an offender gets enhanced credit depended on a number of circumstances including his or her prospects of being granted parole and including whether or not they were dangerous, whether it could be concluded they delayed the proceeding to build up pre-trial time, and their institutional record amongst others.

[15] Rather than wade too far into the conflicting decisions, particularly with the Court of Appeal going to give us assistance on the issue in the near future, I am going to examine all of the circumstances and determine the amount of credit he should be given having regard to the Crown’s fair concession that there should be some enhanced credit.

[16] What are the circumstances that inform my decision? First, Mr. Raphael is being sentenced after a guilty plea on September 7th. The period between the plea and today is one that some judges have held merits enhanced credit because the adjournment of the sentencing is a period after the finding of guilt yet no remission is available. I find that period of time merits support for some enhancement.

[17] Second, the number of lockdowns at Maplehurst makes this young man’s detention more onerous than others held in pre-trial custody and would also support enhanced credit. Inmates are in their cells 16 hours a day, so a lockdown is when they are not out for all or part of the remaining 8 hours.

[18] As indicated to counsel, in the past I have drawn a distinction between lockdowns when the institution does not have enough staff to permit inmates their regular hours out of their cells and visits with counsel, and lockdowns caused by fights, weapons searches or medical issues. It seems to me that the latter are part of being in jail. The former should not be. The records filed here again reflect the troubling pattern from Maplehurst with frequent lockdowns because of staff shortages — shortages that almost invariably occur on weekends, Fridays and Mondays.

[19] Michael McDonald, the manager of security investigations from Maplehurst, testified and explained the lockdown situation as involving red lines for scheduling, which I infer is the number of guards that are required to run the jail as intended. When the numbers go below the red line, they try to fill with unclassified staff, then go to overtime and only then do they lockdown all or part of the institution.

[20] He candidly acknowledged that guards’ attendances will be an issue on weekends with part of the problem guards calling in ill or not coming in for some other reason. That contributes to the weekend lockdowns as well as the fact they do not have the additional staff from weekdays that are scheduled to take inmates to hospitals. When problems arise on the weekend, such as an inmate being in a fight and having to go to the hospital, they do not have staff scheduled for taking prisoners out so when someone has to go to hospital it can contribute to lockdowns.

[21] Here, there were 66 days when there were staff shortages related to lockdowns for all or part of the day. Thirty-seven were full days. With the exception of four, all were on weekends or a few Mondays or Fridays. Perhaps coincidentally this year is the highest. That coincides with some recent instances of prisoners being delayed getting to court because on the information provided to us, the guards are working to rule. I find that the lockdowns as well is a factor to take into consideration in giving enhanced credit.

[22] Third, I can also take into consideration that as a result of lockdowns, his counsel was not able to visit him at the jail between six to ten times. I understand that on one occasion, counsel travelled there to interview the offender only to be turned away because of a lockdown. And one time they were told there was a lockdown, Mr. Raphael advised counsel later in the day that there was not one. The interferences with the right of an individual to consult with his or her counsel is a significant factor in terms of assessing the nature of the pre-trial custody.

[23] Fourth, and while there are conflicting decisions on this, I am considering the fact there is no earned remission, not as a starting point, but as a relevant factor in assessing whether there should be enhanced credit, and if so, what it should be.

[24] Fifth, I also take into consideration the differences in the nature of incarceration between remand and sentenced inmates including the type, duration of visits, exercise facilities, remuneration available for employment as factors.

[25] Finally, I have to take into consideration this offender’s inmate discipline record. He had been in segregation seven times. From the records, four of the dates can be explained. First, possession of contraband, it is not indicated what it was. Second, wilfully disobeying an order. The next two times, threat or an assault on another inmate. Finally, what is referred to as creating or inciting a disturbance. So that is the extent of the information I have regarding those incidents. He received closed confinement for between three and ten days for those events. The bottom of the summary page has the following notation, “This number of unit relocations and admittance to segregation reflect from which one can conclude the offender is a high maintenance individual.”

[26] While I accept what Mr. Weisberg says about that record possibly being the result of the pressure on inmates being incarcerated in holding jails for such lengthy periods of time, there have been many people in this courthouse for sentencing with their jail records and no internal discipline entries at all, and they had been there for many, many months. The entries here would be a relevant fact on the issue of whether he is a candidate for parole when looking at the remission issue which is premised on parole eligibility. The entries certainly would not assist any application. However, given his age, I am not sure that they would preclude it but it is a factor I can take into consideration.

[27] Having regard to all these circumstances, first, I agree with both counsel that credit above the one-for-one is justified, and second, I am not persuaded it should be a total 1.5, and he will be credited with one year.

[28] Regrettably, no sentence that I could impose today will turn back the clock to before this tragic event. What I am required to do is impose a sentence that is consistent with the purposes and principles of sentencing. I find the joint submission of ten years by experienced counsel is consistent with those purposes and principles.

[29] The offence is most serious — taking the life of an innocent young man who just wanted to play basketball. The offender’s moral culpability is high given he was carrying a loaded gun in public while subject to a court order preventing him from possessing the weapon. The sentence has to emphasize general deterrence, telling others who would be tempted to carry loaded guns that even accidental discharges are going to result in significant penitentiary sentences.

[30] The sentence also must address denunciation, reflective of society’s condemnation of the offender’s conduct. Sentencing judges speak for the community, in this case I can infer a community that has had far too many gun-related offences.

[31] The sentence must also factor in specific deterrence to send a very clear message to the offender. I also have to consider his rehabilitation given his age in particular. He appears to be a bright young man who had done well in school and has the capacity to turn things around and become a contributing member of society.

[32] The ten-year penitentiary sentence for a young first offender addresses all of those concerns.

[33] In the result, the sentence is six years and eight months in addition to 28 months pre-sentence custody for which he is credited with 40 months. There will be a DNA order that I will sign. You are prohibited from having in your possession any firearm, cross-bow, restricted weapon, ammunition, explosive substance, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. I take it the Crown has no issue with the fine surcharge being waived?

MR. KINGDON: No, Your Honour. Thank you.

THE COURT:

[34] For reasons dictated, sentence six years and eight months in jail in addition to 28 months pre-trial custody for which he is credited with 40 months. DNA order, 109 order for life. Fine surcharge waived.

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, CINDY LOURO, certify that this document is a true and accurate transcription of the recording of

R. v. Christopher RAPHAEL

in the Superior Court of Justice held at Brampton, Ontario taken from Recording No. 3199-406-20121128-081653 which has been certified in Form 1.

December 9, 2013_ “Original Signed by Reporter”

Date Cindy Louro