Court File and Parties

CITATION: R. v. Michael, 2016 ONSC 6437

COURT FILE NO.: CR-14-700000426-0000

DATE: 20161014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael

BEFORE: E.M. Morgan J.

COUNSEL: Jessica Smith Joy, for the Crown Dean F. Embry, for the Defendant

HEARD: October 14, 2016 (sentencing submissions)

Sentencing Judgment

[1] On July 22, 2016, after a protracted trial that began in January 2015 and moved in fits and starts through 8 days of trial, I convicted Mr. Michael on charges of assault, threatening, and use of an imitation firearm while threatening. The charges all arose from an incident that occurred on November 17, 2012 on a TTC streetcar.

[2] In brief, while riding on a westbound Queen Street streetcar, Mr. Michael verbally harassed and ultimately had a physical altercation with Catherine Brio. In an effort to defuse the situation another passenger, Andrew Marchand, attempted to intervene by telling Mr. Michael to leave the young woman alone. Mr. Marchand was met with a threatening response by Mr. Michael, who brandished what appeared to be a firarm in the waist band of his pants. Mr. Michael then exited the streetcar and got onto another streetcar headed in the same direction and again began harassing two young female passengers. Once again another passenger, George Assimakopolous, attempted to intervene to get him to leave the women alone. Mr. Assimakopolous and his friend David Byrne, who was sitting next to him, were met with threats by Mr. Michael, who lifted his shirt to show off what appeared to be a firearm.

[3] Mr. Michael was arrested a short time later, having apparently disposed of the firearm (or what had appeared to the threatened passengers to be a firearm). In his possession was a package of ammunition for an Air Soft pellet gun.

[4] Although none of the witnesses gave victim impact statements at the sentencing hearing, I know from having heard their testimony that they were shaken up by the incident. Ms. Brio was certainly disturbed by having been personally victimized and assaulted, and Messrs Marchand, Assimakopolous and Byrne all were frightened by the threats accompanied by the display of what they genuinely believed to be a firearm. They each testified that the weapon looked very real to them, and that Mr. Michael was acting in a way that caused them to take seriously that he would use the weapon.

[5] Counsel for the Crown seeks a custodial sentence of 18 months, minus credit for time served of 8.5 months calculated on a 1:1.5 basis. She indicates that the mandatory minimum sentence for use of an imitation firearm in the furtherance of other offences is 1 year, and that the sentence is to be served concurrently with the sentence for the other offences. She submits that the threatening offense on its own merits 3 months, while the assault merits 1 month incarceration. She also seeks a 2 year probationary period accompanied by certain conditions.

[6] In support of these submissions, the Crown emphasizes certain aggravating features of the offences, including the fear that Mr. Michael provoked by brandishing a very real looking weapon. Crown counsel cites R v McLaughlin, 2014 ONSC 307, where my colleague, Spies J. at para 46 identified similar aggravating circumstances: "The victims had no way of knowing that the firearm was an imitation. [The victim/witness] believed the firearm to be real… She was clearly terrified by this event at the time." Crown counsel also submits that the fact that Mr. Michael disposed of the weapon is an aggravating factor, as it has never been found.

[7] In response, counsel for the defense submits that the mandatory minimum of 1 year, minus credit totaling 8.5 months, represents a sufficient sentence for the offenses in issue. He concedes that the threats and the brandishing of the firearm were frightening to the witnesses, but points out that an element of fear is by definition present in the offense of threatening death or bodily harm, and that it would be an overstatement to say that the witnesses were "terrified" in the way that Justice Spies described it in McLaughlin. He also submits that the disposal of an imitation weapon is not an aggravating factor as it does not endanger the public.

[8] Defense counsel points out that McLaughlin, like virtually all of the reported cases of threatening with an imitation firearm, involved an actual robbery, which is a much more serious use of the imitation weapon than threats and harassment on a public transportation vehicle. Two other cases drawn to my attention – R v Burnett, 2007 ONCA 478 and R v Oswald, 2013 ONSC 5744 – bear out defense counsel's point. Burnett involved a robbery in conjunction with the threatening with an imitation firearm, while Oswald involved a robbery along with kidnapping, hostage taking and abduction. Both situation were substantially more severe than the one before me, and both offenders were given the minimum 1 year custodial sentence for the use of the imitation firearm.

[9] In R v M (C), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[10] Mr. Michael is currently 26 years old. Although he has had encounters with the police and the justice system, he presently has no criminal antecedents. He has struggled with mental health and alcohol and/or substance abuse issues, some of which have been on display during the course of this trial. He was only 22 years old at the time of the offense, and gives the impression of a somewhat troubled young man.

[11] To his credit, Mr. Michael personally apologized to the court and to his victims, and conveyed what appeared to me to be a sense of remorse for his conduct. He states that he has matured during the 4 years that have elapsed since the date of his offense, and he accepts responsibility for his conduct.

[12] I would also note that Mr. Michael immigrated to Canada from his native Rwanda in 2008. As indicated, he is 26 years old, which means that he was born in 1990. There is no evidence in the record as to what type of childhood he had, but anyone with common knowledge of Rwandan history will know that the civil war in that country was raging during his childhood, culminating in the horrific genocide of 1994. It takes little stretch of the imagination to understand that Mr. Michael likely did not have the kind of childhood that most Canadian children are fortunate enough to have, and that his current mental health issues stem from the traumas he has lived through.

[13] It is noteworthy that Mr. Michael appears to have a supportive family. His parents have both attended his sentencing hearing, and his mother was present throughout most of his trial. With a supportive home environment, he is likely to benefit from counselling. I am of the view that an excessive period of incarceration will only rebound to his detriment, and that if he is to become a more productive member of society he will do better with a probationary period than with many months in jail.

[14] Mr. Michael, please stand.

[15] I hereby sentence you to a custodial sentence of 1 year, less 8.5 months for time served to date, for a total of 3.5 months of incarceration from today.

[16] In addition, I sentence you to 2 years' probation following your release from jail. During this 2 year probationary period, the following conditions will apply:

• that you will keep the peace and be of good behaviour;

• that upon completion of your custodial sentence you will report to a probation officer as required;

• that you attend alcohol, substance abuse, mental health, or other counseling as directed by your probation officer;

• that you refrain from any consumption of alcohol or illicit drugs;

• that you not be in possession of any weapon or imitation weapon; and

• that you have no contact with Catherine Brio, Andrew Marchand, George Assimikopoulos, or David Byrne.

[17] In addition, the two ancillary Orders sought by the Crown are both granted. There will be a DNA Order and a section 109 firearms prohibition Order for 10 years.

[18] Mr. Michael, I take you at your word that you have learned a great deal from this experience. I hope that you will continue to reflect on it, and that you have and will continue to emerge from this a better person and a peaceful and productive member of Canadian society.

Morgan J.

Date: October 14, 2016